Professional Documents
Culture Documents
Transportation
Parts 1 to 99
Revised as of October 1, 2011
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http://bookstore.gpo.gov
Phone: toll-free (866) 512-1800; DC area (202) 512-1800
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Table of Contents
Page
Explanation ................................................................................................
Title 49:
SUBTITLE AOFFICE OF THE SECRETARY OF TRANSPORTATION .......
Finding Aids:
Table of CFR Titles and Chapters .......................................................
721
741
751
iii
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CFR
iv
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Explanation
The Code of Federal Regulations is a codification of the general and permanent
rules published in the Federal Register by the Executive departments and agencies of the Federal Government. The Code is divided into 50 titles which represent
broad areas subject to Federal regulation. Each title is divided into chapters
which usually bear the name of the issuing agency. Each chapter is further subdivided into parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year and issued
on a quarterly basis approximately as follows:
Title 1 through Title 16..............................................................as of January 1
Title 17 through Title 27 .................................................................as of April 1
Title 28 through Title 41 ..................................................................as of July 1
Title 42 through Title 50 .............................................................as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially noticed (44
U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text
of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual issues
of the Federal Register. These two publications must be used together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its revision date
(in this case, October 1, 2011), consult the List of CFR Sections Affected (LSA),
which is issued monthly, and the Cumulative List of Parts Affected, which
appears in the Reader Aids section of the daily Federal Register. These two lists
will identify the Federal Register page number of the latest amendment of any
given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal Register since the last revision of that volume of the Code. Source citations for
the regulations are referred to by volume number and page number of the Federal
Register and date of publication. Publication dates and effective dates are usually not the same and care must be exercised by the user in determining the
actual effective date. In instances where the effective date is beyond the cutoff 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. 96511) requires Federal agencies
to display an OMB control number with their information collection request.
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Many agencies have begun publishing numerous OMB control numbers as amendments to existing regulations in the CFR. These OMB numbers are placed as
close as possible to the applicable recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on the cover
of each volume are not carried. Code users may find the text of provisions in
effect on a given date in the past by using the appropriate numerical list of
sections affected. For the period before April 1, 2001, consult either the List of
CFR Sections Affected, 19491963, 19641972, 19731985, or 19862000, published in
eleven separate volumes. For the period beginning April 1, 2001, a List of CFR
Sections Affected is published at the end of each CFR volume.
[RESERVED] TERMINOLOGY
The term [Reserved] is used as a place holder within the Code of Federal
Regulations. An agency may add regulatory information at a [Reserved] location at any time. Occasionally [Reserved] is used editorially to indicate that
a portion of the CFR was left vacant and not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was established
by statute and allows Federal agencies to meet the requirement to publish regulations in the Federal Register by referring to materials already published elsewhere. For an incorporation to be valid, the Director of the Federal Register
must approve it. The legal effect of incorporation by reference is that the material is treated as if it were published in full in the Federal Register (5 U.S.C.
552(a)). This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the Federal Register
will approve an incorporation by reference only when the requirements of 1 CFR
part 51 are met. Some of the elements on which approval is based are:
(a) The incorporation will substantially reduce the volume of material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent necessary to
afford fairness and uniformity in the administrative process.
(c) The incorporating document is drafted and submitted for publication in
accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If you have any
problem locating or obtaining a copy of material listed 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, 8601 Adelphi Road, College Park, MD 20740-6001, or
call 202-741-6010.
vi
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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 Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to the
revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing in the
Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this volume,
contact the issuing agency. The issuing agencys name appears at the top of
odd-numbered pages.
For inquiries concerning CFR reference assistance, call 2027416000 or write
to the Director, Office of the Federal Register, National Archives and Records
Administration, 8601 Adelphi Road, College Park, MD 20740-6001 or e-mail
fedreg.info@nara.gov.
SALES
The Government Printing Office (GPO) processes all sales and distribution of
the CFR. For payment by credit card, call toll-free, 866-512-1800, or DC area, 202512-1800, M-F 8 a.m. to 4 p.m. e.s.t. or fax your order to 202-512-2104, 24 hours
a day. For payment by check, write to: US Government Printing Office New
Orders, P.O. Box 979050, St. Louis, MO 63197-9000.
ELECTRONIC SERVICES
The full text of the Code of Federal Regulations, the LSA (List of CFR Sections
Affected), The United States Government Manual, the Federal Register, Public
Laws, Public Papers of the Presidents of the United States, Compilation of Presidential Documents and the Privacy Act Compilation are available in electronic
format via www.ofr.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202-512-1800, or 866-512-1800
(toll-free). E-mail, gpo@custhelp.com.
The Office of the Federal Register also offers a free service on the National
Archives and Records Administrations (NARA) World Wide Web site for public
law numbers, Federal Register finding aids, and related information. Connect
to NARAs web site at www.archives.gov/federal-register.
RAYMOND A. MOSLEY,
Director,
Office of the Federal Register.
October 1, 2011.
vii
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THIS TITLE
Title 49TRANSPORTATION is composed of nine volumes. The parts in these volumes are arranged in the following order: Parts 199, parts 100177, parts 178
199, parts 200299, parts 300399, parts 400571, parts 572999, parts 10001199, and
part 1200 to end. The first volume (parts 199) contains current regulations issued
under subtitle AOffice of the Secretary of Transportation; the second volume
(parts 100177) and the third volume (parts 178199) contain the current regulations issued under chapter IPipeline and Hazardous Materials Safety Administration (DOT); the fourth volume (parts 200299) contains the current regulations
issued under chapter IIFederal Railroad Administration (DOT); the fifth volume
(parts 300399) contains the current regulations issued under chapter IIIFederal
Motor Carrier Safety Administration (DOT); the sixth volume (parts 400571) contains the current regulations issued under chapter IVCoast Guard (DHS), and
some of chapter VNational Highway Traffic Safety Administration (DOT); the
seventh volume (parts 572999) contains the rest of the regulations issued under
chapter IV, and the current regulations issued under chapter VIFederal Transit
Administration (DOT), chapter VIINational Railroad Passenger Corporation
(AMTRAK), and chapter VIIINational Transportation Safety Board; the eighth
volume (parts 10001199) contains the current regulations issued under chapter
XSurface Transportation Board and the ninth volume (part 1200 to end) contains the current regulations issued under chapter XSurface Transportation
Board, chapter XIResearch and Innovative Technology Administration, and
chapter XIITransportation 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, 2011.
In the volume containing parts 100177, see 172.101 for the Hazardous Materials
Table. The Federal Motor Vehicle Safety Standards appear in part 571.
Redesignation tables for chapter IIIFederal Motor Carrier Safety Administration, Department of Transportation and chapter XIITransportation Security
Administration, Department of Transportation appear in the Finding Aids section of the fifth and ninth volumes.
For this volume, Susannah C. Hurley was Chief Editor. The Code of Federal
Regulations publication program is under the direction of Michael L. White, assisted by Ann Worley.
ix
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Title 49Transportation
(This book contains parts 1 to 99)
Part
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1
3
5
6
7
8
9
10
11
15
17
18
19
20
21
22
23
24
Page
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49
50
53
59
74
82
86
99
110
116
120
149
177
189
200
210
229
Page
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277
293
358
370
378
383
399
404
501
539
555
672
674
680
680
686
693
695
704
705
708
710
713
Subpart CDelegations
1.41 Purpose.
1.42 Exercise of authority.
1.43 General limitations and reservations.
1.44 Reservation of authority.
1.45 Delegations to all Administrators.
1.46 Delegations to the Administrator of the
Research and Innovative Technology Administration.
1.47 Delegations to Federal Aviation Administrator.
1.48 Delegations to Federal Highway Administrator.
1.49 Delegations to Federal Railroad Administrator.
1.50 Delegation to National Highway Traffic
Safety Administrator.
1.51 Delegations to Federal Transit Administrator.
1.52 Delegations to Saint Lawrence Seaway
Development Corporation Administrator.
1.53 Delegations to the Administrator of the
Pipeline and Hazardous Materials Safety
Administration.
1.54 Delegations to all Secretarial Officers.
1.55 Delegations to Deputy Secretary.
1.56 Delegations to the Assistant Secretary
for Transportation Policy.
1.56a Delegations to the Assistant Secretary for Aviation and International Affairs.
1.56b Delegations to the Designated Senior
Career Official, Office of the Assistant
Secretary for Aviation and International
Affairs.
1.57 Delegations to General Counsel.
1.57a Delegations to Deputy General Counsel.
1.57b Delegations to the Assistant General
Counsel for Operations.
1.58 Delegations to Assistant Secretary for
Budget and Programs.
1.59 Delegations to Assistant Secretary for
Administration.
CERS
Subpart AGeneral
1.1 Purpose.
This part describes the organization
of the Department of Transportation
and provides for the performance of duties imposed upon, and the exercise of
powers vested in, the Secretary of
Transportation by law.
[74 FR 26982, June 5, 2009]
1.2 Definitions.
As used in this part, Administrator includes:
(a) The Federal Aviation Administrator.
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1.3
1.4
1.3
General responsibilities.
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1.4
(1) Promulgating uniform standards
for developing State highway safety
programs, except for those standards
the development and administration of
which are delegated to the Federal
Highway Administration.
(2) Establishing, prescribing, and enforcing National standards for improving safety in the operation and performance of motor vehicles and equipment.
(3) Informing the public of the comparative characteristics and operational cost of passenger motor vehicles and requiring display of comparative insurance costs by automobile
dealers.
(4) Administering a program of mandatory automotive fuel economy standards for passenger and non-passenger
automobiles for model year 1978 and beyond.
(5) Establishing safeguards for the
protection of purchasers with respect
to the sale of motor vehicles having altered or reset odometers and enforcing
the prohibition against tampering with
odometers.
(f) The Federal Transit Administration.
Is responsible for:
(1) Exercising the authority vested in
the Secretary for developing comprehensive and coordinated public
transportation systems that serve the
public.
(2) Administering Federal transportation assistance programs and functions; and
(3) Assuring appropriate liaison and
coordination with other Federal agencies, state and local governmental authorities, with respect to the foregoing.
(g) The St. Lawrence Seaway Development Corporation. Is responsible for the
development, operation, and maintenance of that part of the St. Lawrence
Seaway within the territorial limits of
the United States.
(h) The Pipeline and Hazardous Materials Safety Administration. Is responsible for:
(1) Administering a national program
of safety in natural gas and hazardous
liquid pipeline transportation including identifying pipeline safety concerns, developing uniform safety standards, and promulgating and enforcing
safety regulations.
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1.4
(14) Administering the foreign transfer program regarding ships and other
maritime properties;
(15) Training merchant marine officers;
(16) Conducting research and development to improve and promote the waterborne commerce of the United
States; and
(17) Issuing rules and regulations
with respect to the foregoing functions.
(j) The Maritime Subsidy Board (within
the Maritime Administration). Is responsible for:
(1) Making, amending, and terminating subsidy contracts, which shall
be deemed to include, in the case of
construction-differential subsidy: (i)
The contract for the construction, reconstruction, or reconditioning of a
vessel, and (ii) the contract for the sale
of the vessel to the subsidy applicant
or the contract to pay a constructiondifferential subsidy and the cost of the
national defense features, and, in the
case of operating-differential subsidy,
the contract with the subsidy applicant
for the payment of the subsidy.
(2) Conducting hearings and making
determinations antecedent to making,
amending, and terminating subsidy
contracts, under the provisions of titles V, VI, and VII, and sections 301 (except investigations, hearings, and determinations, including changes in determinations, with respect to minimum manning scales, minimum wage
scales, and minimum working conditions), 708, 805(a), and 805(f) of the Merchant Marine Act, 1936, as amended
(the Act).
(3) Approving the sale, assignment,
or transfer of any operating subsidy
contract under section 608 of the Act.
(4) Performing so much of the functions with respect to adopting rules
and regulations, subpoenaing witnesses, administering oaths, taking
evidence, and requiring the production
of books, papers, and documents, under
sections 204 and 214 of the Act, as they
relate to the functions of the Board.
(5) Performing as much of the functions specified in section 12 of the Shipping Act, 1916, as amended, as the same
relate to the functions of the Board
under paragraphs (k) (1) through (4) of
this section.
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1.21
(10) Providing oversight of the activities of the Bureau of Transportation
Statistics.
(11) Providing oversight of the activities of the Volpe National Transportation Systems Center.
(12) Coordinating intermodal research initiatives and planning activities.
(13) Serving as a focal point within
the Federal government for coordination of intermodal transportation research and development policy, in coordination with the Under Secretary
for Policy.
(l) The Federal Motor Carrier Safety
Administration. Is responsible for:
(1) Managing program and regulatory
activities,
including
administering
laws and promulgating and enforcing
regulations on safety matters relating
to motor carrier safety;
(2) Carrying out motor carrier registration and authority to regulate
household goods transportation;
(3) Developing strategies for improving commercial motor vehicle, operator, and carrier safety;
(4) Inspecting records and equipment
of commercial motor carriers, and investigating accidents and reporting
violations of motor carrier safety regulations; and
(5) Carrying out research, development, and technology transfer activities to promote safety of operation and
equipment of motor vehicles for the
motor carrier transportation program.
[Amdt. 1113, 40 FR 43901, Sept. 24, 1975]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting 1.4, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.
Purpose.
This subpart establishes the basic organizational structure, spheres of primary responsibility, and lines of authority in the Office of the Secretary.
It also describes the relationships between the Office of the Secretary and
the operating administrations, and provides for succession to the position of
Secretary in case of need.
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1.22
1.22 Structure.
(a) Secretary and Deputy Secretary.
The Secretary and Deputy Secretary
are assisted by the following, all of
which report directly to the Secretary:
The Under Secretary for Policy; the
Executive Secretariat; the Board of
Contract Appeals; the Departmental
Office of Civil Rights; the Office of
Small and Disadvantaged Business Utilization; the Office of Intelligence, Security, and Emergency Response; the
Office of Public Affairs; and the Office
of the Chief Information Officer. The
Assistant Secretaries, the General
Counsel, and the Inspector General also
report directly to the Secretary.
(b) Office of the Assistant Secretary for
Transportation Policy. This Office is
composed of the Offices of Environment, Energy and Safety; and Economics.
(c) Office of the Assistant Secretary for
Aviation and International Affairs. This
Office is composed of the Offices of
Aviation
International
Economics;
International
Transportation
and
Trade; International Aviation; and
Aviation Analysis.
(d) Office of the General Counsel. This
Office is composed of the Offices of Environmental, Civil Rights, and General
Law; International Law; Litigation;
Legislation; Regulation and Enforcement; and Aviation Enforcement and
Proceedings.
(e) Office of the Assistant Secretary for
Budget and Programs. This Office is
composed of the Offices of Programs
and Evaluation; and Budget.
(f) Office of the Assistant Secretary for
Governmental Affairs. This office is
composed of the Offices of Congressional Affairs and Intergovernmental
Affairs.
(g) Office of the Assistant Secretary for
Administration. This Office is composed
of the Offices of Personnel; Management Planning; Information Resource
Management; Administrative Services
and Property Management; Hearings;
Acquisition and Grant Management;
Security; Financial Management; and
Administrative Systems Development.
(h) Office of the Inspector General. The
duties and responsibilities of the Office
of Inspector General are carried out by
the Assistant Inspector General for Auditing; the Assistant Inspector General
1.23 Spheres
bility.
of
primary
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1.23
mittees; departmental financial plans,
apportionments,
reapportionments,
reprogrammings, and allotments; program and systems evaluation and analysis; program evaluation criteria; program resource plans; analysis and review of legislative proposals and onetime reports and studies required by
the Congress; budgetary and selected
debt and administrative matters relating to the Office of the Secretary.
(g) Assistant Secretary for Governmental Affairs. Coordination of legislative and non-legislative relationships;
congressional affairs; communications
and coordination with Federal, State
and local governments, industry and
labor, and with citizens and organizations representing consumers.
(h) Deputy Assistant Secretary for Tribal Government Affairs. Plan, coordinate
and implement the Departments policies and programs with respect to Indian tribes and tribal organizations.
Coordinate intra-Departmental tribal
transportation programs and activities. Serve as the Departments primary point of contact in relationships
with public and private organizations
and groups related to Indian tribes and
tribal organizations. Participate in any
negotiated rulemaking relating to, or
having an impact on, projects, programs, or funding associated with the
tribal transportation program.
(i) Assistant Secretary for Administration. Organization; delegations of authority; personnel ceiling control;
management studies; personnel management; acquisition and grant management (except for the responsibility
listed for the Office of Small and Disadvantaged Business Utilization in this
section); information resource management; financial management; development and implementation of a Departmental Accounting and Financial Information System (DAFIS); property
management information; security;
computer
support;
telecommunications; and administrative support
services for the Office of the Secretary
and certain other components of the
Department.
(j) Inspector General. Conduct, supervise, and coordinate audits and investigations, review existing and proposed
legislation and make recommendations
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1.24
to the Secretary and Congress (Semiannual reports) concerning their impact on the economy and efficiency of
program administration, or the prevention and detection of fraud and abuse;
recommend policies for and conduct,
supervise, or coordinate other activities of the Department for the purpose
of promoting economy and efficiency
in program administration, or preventing and detecting fraud and abuse.
(k) Executive Secretary. Central facilitative staff for the Immediate Office of
the Secretary and the Secretarial Officers.
(l) Board of Contract Appeals. Conducts trials and issues final decisions,
which are appealable to the United
States Court of Appeals for the Federal
Circuit, on appeals from contracting
officer
decisions
under
contracts
awarded by the Department and its
constituent administrations in accordance with the Contract Disputes Act of
l978, 41 U.S.C. 601 et seq.; sits as the
Contract Adjustment Board with plenary authority to grant extraordinary
contractual relief in accordance with 50
U.S.C. 14311435 and Executive Order
10789 (3 CFR, 19541958 comp., p. 426), as
amended; hears and decides all contractor and subcontractor debarment,
suspension, or ineligibility cases pursuant to the Federal Acquisition Regulation, 48 CFR 9.402; judges serve as
neutrals under the Administrative
Dispute Resolution Act, 5 U.S.C. 581 et
seq., in contract-related matters; and
performs such other adjudicatory functions assigned by the Secretary as are
consistent with the duties and responsibilities of the Board as set forth in 41
U.S.C. 601 et seq.
(m) Departmental Office of Civil Rights.
The Director of the Departmental Office of Civil Rights serves as the Departments Equal Employment Opportunity (EEO) Officer and Title VI Coordinator. The Director also serves as
principal advisor to the Secretary and
the Deputy Secretary on the civil
rights and nondiscrimination statutes,
regulations, and executive orders applicable to the Department, including titles VI and VII of the Civil Rights Act
of 1964, as amended, the Age Discrimination in Employment Act of 1967, as
amended, the Age Discrimination Act
of 1975, as amended, section 504 of the
1.24
Authority.
(a) The Deputy Secretary: (1) May exercise the authority of the Secretary,
except where specifically limited by
law, order, regulation, or instructions
of the Secretary; and (2) serves as the
Chief Acquisition Officer.
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1.26
1.25 Relationships.
(a) Normal staff role. Normally, the
functions of the Assistant Secretaries
are staff and advisory in nature. In performing their functions, the Assistant
13
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1.41
Subpart CDelegations
1.41 Purpose.
(a) Except as provided in paragraph
(b) of this section, this subpart provides for the exercise of the powers and
performance of the duties vested in the
Secretary of Transportation by law.
(b) For delegations of authority vested in the Secretary by Executive Order
11652 originally to classify documents
as secret or confidential, see 8.11 of
this subtitle.
1.42 Exercise of authority.
In exercising powers and performing
duties delegated by this subpart or redelegated pursuant thereto, officials of
the Department of Transportation are
governed by applicable laws, Executive
orders and regulations and by policies,
objectives, plans, standards, proce-
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1.44
ment to another within the Department (31 U.S.C. 581c).
(4) Submission to the Director of the
Office of Management and Budget of
requests for the transfer of the balance
or portions of an appropriation from
one element to another within the Department (31 U.S.C. 665).
(d) Interventions and appearances. Except with respect to proceedings relating to safety fitness of an applicant (49
U.S.C. 1653(e)), the making of decisions
on requests to intervene or appear before courts and administrative agencies
to present the views of the Department.
(e) Personnel. (1) Recommendations to
the Civil Service Commission of the allocation of a position to GS16, 17, or 18
or an equivalent level (5 U.S.C. 5108).
(2) Recommendations to the Civil
Service Commission of approval of the
qualifications of any candidate for a
position at grade GS16, 17, or 18 or an
equivalent level (5 U.S.C. 3324), or to an
executive level position.
(3) Recommendations to the Civil
Service Commission of a Lump-Sum
Incentive Award in Excess of $5,000 (5
U.S.C. 4502).
(4) Approval of the following actions
relating to Schedules A, B, and C and
noncareer executive assignment positions or incumbents, except for actions
under Schedules A and B limited to one
year or less at grade GS9 or lower, or
an equivalent level:
(i) Establishment or abolition of positions;
(ii) Hires;
(iii) Promotions other than quality
and periodic within-grade promotions;
(iv) Transfer of personnel to Schedule
A, B, or C positions or non-career executive assignment positions, either permanently or on detail; and
(v) Transfer of personnel from Schedule A, B, or C or non-career executive
assignment positions to career Civil
Service positions.
(5) Approval of employment of experts or consultants.
(6) Authority relating to scientific
and professional positions under section 6(a) (5) of the Department of
Transportation
Act
(49
U.S.C.
1655(a)(5)).
(7) Authority to determine the maximum limit of age for appointment of
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through Equal Employment Opportunity counseling or the Alternative
Dispute Resolution process and to develop and implement affirmative action and diversity plans within their
respective organizations. With regard
to external civil rights programs, each
Administrator exercises authority pursuant to statutes, regulations, executive orders, or delegations in subpart C
of this part to carry out these programs, under the general policy guidance of the Director of the Departmental Office of Civil Rights, including
conducting compliance reviews and
other activities relating to the enforcement of these statutes, regulations,
and executive orders.
(11) Review and approve for payment
any voucher for $25 or less the authority for payment of which is questioned
by a certifying or disbursing officer.
(12) Authorize and approve official
non-foreign travel and transportation
for themselves, their subordinates, and
others performing services for, or in cooperation with, their operating administrations. Additionally, heads of operating administrations, through a redelegation from the Deputy Secretary,
may authorize and approve routine
operational foreign travel, as defined
in DOT 1500.6A, Travel Manual, of 12
85. These authorities may be redelegated in accordance with regulations
issued by the Assistant Secretary for
Administration.
(13) Exercise the authority of the
Secretary to make certifications, findings and determinations under the Regulatory Flexibility Act (Pub. L. 96354)
with regard to any rulemaking document for which issuance authority is
delegated by other sections in this
part. This authority may be redelegated to those officials to whom document issuance authority has been delegated.
(14) Carry out the functions vested in
the Secretary by section 2 of the Federal Technology Transfer Act of 1986,
(Pub. L. No. 99502; 15 U.S.C. 3710a),
which authorizes agencies to permit
their laboratories to enter into cooperative research and development agreements.
(15) Compromise, suspend collection
action on, or terminate claims of the
United States not exceeding $100,000
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1.46
for Users, Title IV, Subtitle A and Section 5209, Title V, Subtitle B, Public
Law 10959, August 10, 2005, 119 Stat.
1144.
(j) Aviation information. (1) Carry out
the functions vested in the Secretary
by 49 U.S.C. 329(b)(1) relating to the
collection and dissemination of information on civil aeronautics.
(2) Carry out the functions vested in
the Secretary by section 4(a)(7) of the
Civil Aeronautics Board Sunset Act of
1984 (October 4, 1984; Pub. L. 98443) relating to the reporting of the extension
of unsecured credit to political candidates (section 401, Federal Election
Campaign Act of 1971; 2 U.S.C. 451), in
conjunction with the General Counsel
and the Assistant Secretary for Aviation and International Affairs.
(3) Carry out the functions vested in
the Secretary by: 49 U.S.C. 40113 (relating to taking such actions and issuing
such regulations as may be necessary
to carry out responsibilities under the
Act), 49 U.S.C. 41702 (relating to the
duty of carriers to provide safe and
adequate service), 49 U.S.C. 41708 and
41709 (relating to the requirement to
keep information and the forms in
which it is to be kept), and 49 U.S.C.
41701 (relating to establishing just and
reasonable classifications of carriers
and rules to be followed by each) as appropriate to carry out the responsibilities under this paragraph in conjunction with the General Counsel and the
Assistant Secretary for Aviation and
International Affairs.
(k) Hazardous materials information. In
coordination with the Under Secretary
for Transportation Policy, work with
the Operating Administrations to determine data needs, collection strategies, and analytical techniques appropriate for implementing 49 U.S.C. 5101
et seq.
(l) Research grants. Carry out the
functions vested in the Secretary by
section 5513(c), (d), (g), (h), (i), (l), and
(m) (as (m) relates to (c), (d), (g), (h),
(i), (j), and (l)) of the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users, Title
V, Subtitle E, Public Law 10959, August 10, 2005, 119 Stat. 1144.
(m) Biobased transportation research.
Carry out the functions vested in the
Secretary by section 5201(m) of the
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within the primary responsibility of
the Federal Transit Administrator.
(19) The Surface Transportation Assistance Act of 1982, as amended, (Pub.
L. 97424, 96 Stat. 2097) except,
(i) Sections 165 and 531 as they relate
to matters within the primary responsibility of the Federal Transit Administrator;
(ii) Sections 105(f), 413; 414(b) (2); 421,
426, and title III; and
(iii) Section 414(b)(1), unless with the
concurrence of the National Highway
Traffic Safety Administrator.
(20) Sections 103(e), 105(a) through
(g), 106(a), and (b), 110(b), 114(d), 117(f),
120(c) and (d), 123(g) and (i), 133(f), 134,
136, 137, 139 through 145, 146(b), 147(c),
149(a) through (f), (h), (i), (k), 151
through 157, 164, and 208 of the Surface
Transportation and Uniform Relocation Assistance Act of 1987 (Pub. L. 100
17, 101 Stat. 132).
(21) Sections 1002(c) and (e), 1003(c),
1004, 1006(h), 1009(c), 1012(b) and (d)
through (f), 1013(c), 1014(c), 1015, 1016(g),
1017(c), 1021(c) and (d), 1022(c), 1023(f)
through (g), 1029(c), (f), and (g), 1032(d)
and (e), 1038 through 1042, 1044, 1045,
1046(d), 1047, 1049, 1050, 1051, 1054, 1057
through 1063, 1065, 1067, 1069, 1072, 1073,
1074, 1076, 1077, 1086, 1088 through 1092,
1097, 1099 through 1108, 6012, and 6014
through 6016 of the Intermodal Surface
Transportation Efficiency Act of 1991
(Pub. L. 102240, 105 Stat. 1914).
(22) Sections 201 through 205, 327
through 336, 339, 340, 349, 352, 353, and
408 of the National Highway System
Designation Act of 1995 (Pub. L. 10459,
109 Stat. 568).
(23) Sections 1101(a), 1102, 1103(m) and
(n), 1106(a) and (d), 1107(c), 1108(f) and
(g), 1110(d)(2) and (e), 1112(c) and (e),
1117(a), (b), and (d), 1118, 1119, 1202(b)
and (e), 1204(i), 1207(c), 1210, 1211(i) and
(l), 1212 (b), (e) through (j), (l), (m), (o),
and (q) through (t), 1213(c), and (f)
through (j), 1214, 1215, 1216, 1217, 1220,
1223, 1224, 1225, 1307(d) through (f), 1308,
1309, 1311, 1402, 1511, 5001, 5112, 5116
through 5118, and 5203 through 5212 of
the Transportation Equity Act for the
21st Century (Pub. L. 105178, 112 Stat.
107).
(24) Sections 1102, 1105(f), 1109(f),
1111(b)(4), 1112, 1115(c), 1116(a) and (b),
1117, 1119(n), 1120(c), 1201, 1301, 1302,
1303, 1304, 1305, 1306, 1308, 1310, 1401(e),
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(g) Exercise the administrative powers under the Interstate Commerce Act
with respect to powers and duties pertaining to railroad safety transferred
to the Secretary (49 U.S.C. 1655(f)).
(h) Operate and administer the Alaska Railroad under the Act of March 12,
1914, as amended (38 Stat. 305), and Executive Order 11107 (28 FR 4225 (1963)).
(i) Make individual and general
changes in freight rates and passenger
fares for the Alaska Railroad, without
power to redelegate authority for general changes in freight rates and passenger fares.
(j) Promote and undertake research
and development relating to rail matters generally (49 U.S.C. 1653(a),
1657(e)(1), 1657(n)(1), and 1657(q)(1)).
(k) Carry out the functions vested in
the Secretary by subtitle B of the National Visitor Center Facilities Act of
1968, as added by the Union Station Redevelopment Act of 1981 (Pub. L. 97125;
95 Stat. 1667) except section 114(e) and
such parts of section 118 as provided for
the completion of the parking facility
and associated ramps at Union Station
in Washington, DC.
(l) Exercise the authority vested in
the Secretary by the Emergency Rail
Services Act of 1970 (Pub. L. 91663) except the authority to make findings required by section 3(a) of that Act and
the authority to sign guarantees of certificates issued by trustees.
(m) Carry out the functions vested in
the Secretary by the Federal Railroad
Safety Act of 1970 (title II of Pub. L.
91458); 84 Stat. 971, 45 U.S.C. 421 et.
seq.), except section 204(b) (84 Stat. 972,
45 U.S.C. 433(b)) with respect to highway, traffic, and motor vehicle safety
and highway construction.
(n) Carry out the functions vested in
the Secretary by the Emergency Rail
Facilities Restoration Act of 1972 (Pub.
L. 92591).
(o) Carry out the functions vested in
the Secretary by subsection (b) (except
as it relates to conducting consultations with the Administrator of the
Environmental Protection Agency) and
(c) of section 17 of the Noise Control
Act of 1972 (Pub. L. 92574).
(p) Carry out the functions vested in
the Secretary by sections 201(i)(3);
202(b)(7); 203, except authority to issue
subpoenas; 210; 212; 213; 215; 402; 403; and
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Order 12777 (3 CFR, 1991 Comp.; 56 FR
54757), with respect to rail transportation, relating to the approval of
means to ensure the availability of private personnel and equipment to remove, to the maximum extent practicable, a worst case discharge, the review and approval of response plans,
and the authorization of railroads, subject to the Federal Water Pollution
Control Act (33 U.S.C. 1321), to operate
without approved response plans, except as delegated in 1.46(m).
(jj) Exercise the authority vested in
the Secretary by the Swift Rail Development Act of 1994, being Title I
High-Speed Rail of Public Law 103440
(108 Stat. 4615), as it relates to the provision of financial assistance for highspeed rail corridor planning and technology improvements, the promulgation of necessary safety regulations,
and the redemption of outstanding obligations and liabilities with respect to
the Columbus and Greenville Railway
under Sections 505 and 511 of the Railroad Revitalization and Regulatory Reform Act of 1976 (45 U.S.C. 825 and 831,
respectively).
(kk) Carry out the functions and exercise the authority vested in the Secretary by 23 U.S.C. 322, titled the Magnetic Levitation Transportation Technology Deployment Program.
(ll) Carry out the function of determining the Federal requirements for
the Nationwide Differential Global Positioning System (NDGPS) as a necessary part of the Secretarys authority to establish, operate, and manage
the NDGPS granted by Section 346 of
Public Law 10566, titled the Department of Transportation and Related
Agencies Appropriations Act, 1998.
(mm) Carry out the functions and exercise the authority vested in the Secretary by sections 1307, 1946, 9004, 9006,
and 9007 of the Safe, Accountable,
Flexible, Efficient Transportation Equity Act: A Legacy for Users (Pub. L.
No. 10959, 119 Stat. 1144) as they relate
to deployment of magnetic levitation
transportation projects, the Gateway
Rural Improvement Pilot Program, a
study of the impact of public safety of
train travel in communities without
grade separation, capital grants to the
Alaska Railroad, and a study of rail
transportation and regulation.
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(nn) Carry out the functions and exercise the authority vested in the Secretary by section 20154 of title 49,
United States Code relating to capital
grants for rail line relocation projects.
(oo) Carry out the functions and exercise the authority vested in the Secretary by the Rail Safety Improvement
Act of 2008 (Pub. L. 110432, Div. A, 122
Stat. 4848).
(pp) Carry out the functions and exercise the authority vested in the Secretary by the Passenger Rail Investment and Improvement Act of 2008
(Pub. L. 110432, Div. B, 122 Stat. 4907),
except Title VI (122 Stat. 4968) as it relates to capital and preventive maintenance projects for the Washington Metropolitan Area Transit Authority.
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(19) Section 10202, emergency medical
services;
(20) Section 10302, side-impact crash
protection rulemaking;
(21) Section 10303, tire research;
(22) Section 10305(b), publication of
nontraffic incident data collection;
(23) Section 10306, study of safety belt
use technologies;
(24) Section 10307(b), regulations, in
regard to safety labeling requirements;
(25) Section 10308, power window
switches; and
(26) Section 10309(a), testing, in regard to 15-passenger van safety.
(q) Carry out the functions and exercise the authority vested in the Secretary under the Energy Independence
and Security Act of 2007 (Public Law
110140; December 19, 2007), as it relates
to:
(1) Section 106, Continued Applicability of Existing Standards;
(2) Section 107, National Academy of
Sciences Studies;
(3) Section 108, National Academy of
Sciences Study of Medium-Duty and
Heavy-Duty Truck Fuel Economy;
(4) Section 110, Periodic Review of
Accuracy of Fuel Economy Labeling;
(5) Section 113, Exemption from Separate Calculation Requirement;
(6) Section 131(b)(2) and (c)(1), Plug-in
Electric Drive Vehicle Program;
(7) Section 225(a), Study of Optimization of Flexible Fueled Vehicles to Use
E85 Fuel;
(8) Section 227(a), Study of Optimization of Biogas Used in Natural Gas Vehicles;
(9) Section 242(a), Renewable Fuel
Dispenser Requirements; and
(10) Section 248(a), Biofuels Distribution and Advanced Biofuels Infrastructure.
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multi-modal containers that are represented, marked, certified, or sold for
use in the transportation of hazardous
materials; and
(2) Carry out the functions vested in
the Secretary by all other provisions of
the Federal hazardous material transportation law (49 U.S.C. 5101 et seq.) except as delegated by 1.47(j)(2) and
1.73(d)(2) of this chapter and by paragraph 2(99) of Department of Homeland
Security Delegation No. 0170.
(c) Carry out the functions vested in
the Secretary by section 4(e) of the
International Safe Container Act (46
U.S.C. 1503(e)).
(d) Exercise the authority and carry
out the functions delegated to the Secretary in the following sections of Executive Order 12777 (56 FR 54757, Oct. 22,
1991):
(1) Section 2(b)(2) relating to the establishment of procedures, methods,
equipment and other requirements to
prevent discharges from, and to contain oil and hazardous substances in,
pipelines, motor carriers, and railroads; and
(2) Section 2(d)(2) relating to the
issuance of regulations requiring the
owners or operators of pipelines, motor
carriers, and railroads, subject to the
Federal Water Pollution Control Act
(33 U.S.C. 1321 et seq.), to prepare and
submit response plans. For pipelines
subject to the Federal Water Pollution
Control Act, this authority includes
the approval of means to ensure the
availability of private personnel and
equipment to remove, to the maximum
extent practicable, a worst case discharge, the review and approval of response plans, and the authorization of
pipelines to operate without approved
response plans.
[70 FR 8301, Feb. 18, 2005, as amended at 71
FR 30833, May 31, 2006; 71 FR 52753, Sept. 7,
2006]
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poration and when so serving carry out
the functions vested in the Secretary
in each capacity by title III of the Regional Rail Reorganization Act of 1973
(Pub. L. 93236).
[Amdt. 1113, 40 FR 43901, Sept. 24, 1975, as
amended by Amdt. 1114, 41 FR 1288, Jan. 7,
1976; Amdt. 1116, 41 FR 20680, May 20, 1976;
Amdt. 1126, 41 FR 56327, Dec. 28, 1976; Amdt.
1157, 45 FR 83408, Dec. 18, 1980; Amdt. 1165,
46 FR 55266, Nov. 9, 1981]
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EDITORIAL NOTE: For FEDERAL REGISTER citations affecting 1.57, see the List of CFR
Sections Affected which appears in the Finding Aids section of the printed volume and at
www.fdsys.gov.
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or terminate claims of the United
States not exceeding $100,000 (excluding
interest) which are referred to, or arise
out of the activities of, the Office of
the Secretary (excluding claims pertaining to the Working Capital Fund).
[Amdt. 1130, 42 FR 58754, Nov. 11, 1977. Redesignated by Amdt. 1157, 45 FR 83409, Dec.
18, 1980, as amended by Amdt. 1293, 63 FR
33589, June 19, 1998; 68 FR 12834, Mar. 18, 2003;
73 FR 57269, Oct. 2, 2008]
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(ii) Recommend relief by the Comptroller General for all other losses or
deficiencies.
(4) Settle and pay claims by employees of the Office of the Secretary, except at the Transportation System
Center, for personal property losses, as
provided by 31 U.S.C. 241(b).
(5) Waive claims and make refunds in
connection with claims of the United
States for erroneous payment of pay
and allowances or of travel, transportation, and relocation expenses and allowances to an employee of the Office
of the Secretary in amounts aggregating not more than $1,500 without regard to any repayments, and deny requests for waiver of such claims regardless of the aggregate amount of
the claim, as provided by 4 CFR parts
91, 92, and 93. This authority may be
redelgated only to the Director of Financial Management.
(6) Compromise, suspend collection
action on, or terminate claims of the
United States not exceeding $100,000
(excluding interest) which are referred
to, or arise out of the activities of, the
Working Capital Fund.
(7) Determine the existence and
amount of indebtedness and the method of collecting repayments from employees of the Office of the Secretary
and collect repayments accordingly, as
provided by 5 U.S.C. 5514. This authority may be redelegated only to the Director of Financial Management.
(8) Develop, coordinate, and issue
wage schedules for Department employees under the Federal Wage System.
(9) Review and approve for payment
any voucher for $25 or less the authority for payment of which is questioned
by a certifying or disbursing officer.
(Redelegation to the Director of Financial Management is contained in subpart C, 1.59a.)
(10) Approve cash purchases of emergency passenger transportation services costing over $100 under FPMR G
72, as amended.
(11) Perform accounting and related
functions in support of the essential air
service program.
(12) Carry out the functions and obligations assigned to the Secretary with
respect to the Prompt Payment Act,
Public Law 97177.
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ments foreign travel plan approved by
the Office of Management and Budget.
(i) Gifts and bequests. Carry out the
functions vested in the Secretary by
section 9(m) of the Department of
Transportation Act (Pub. L. 89670).
(j) Building management. Carry out
the functions vested in the Secretary
by sections 1(b) and 4(b) (as appropriate) of Executive Order 11912.
(k) Privacy. Issue notices of Department of Transportation systems of
records as required by the Privacy Act
of 1974 (5 U.S.C. 552a(e)(4), (11)).
(l) Hearings. Provide logistical and
administrative support to the Departments Office of Hearings.
(m) Paperwork reduction. Carry out
the functions and responsibilities assigned to the Secretary with respect to
the Paperwork Reduction Act of 1980,
Public Law 96511.
(n) Federal real property management.
Carry out the functions assigned to the
Secretary with respect to Executive
Order 12512 of April 28, 1985.
(o) The Uniform Relocation Assistance
and Real Property Acquisition Policies
Act of 1970, Public Law 91646, 84 Stat.
1894. Except as provided in 1.45, 1.48
and 49 CFR 25.302, the functions, powers, and duties of the Secretary of
Transportation, with respect to the
Uniform Relocation Assistance and
Real Property Acquisition Policies Act
of 1970, are delegated to the Assistant
Secretary for Administration with respect to programs administered by the
Office of the Secretary. This authority
is subject to the requirements listed in
1.45 that govern all Operating Administrations authority with respect to
the Uniform Relocation Assistance and
Real Property Acquisition Policies Act
of 1970.
(p) Regulations. Issue Department of
Transportation procurement regulations, subject to the following limitation:
(1) Coordination. The views of the
General Counsel, the interested administrations and other offices will be solicited in the development of the procurement regulations. In commenting
upon proposed provisions for the procurement regulations, the administrations will indicate the nature and purpose of any additional implementing or
supplementing policy guidances which
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relating to international actions and
cooperation in the economic, trade and
general transportation policy aspects
of the ownership and operation of deepwater ports (33 U.S.C. 1510).
(5) Submission of notice of the commencement of a civil suit (33 U.S.C.
1515(b)(2)).
(6) Intervention in any civil action to
which the Secretary is not a party (33
U.S.C. 15150).
(7) Authority to request the Attorney
General to seek the suspension or termination of a deepwater port license
and to initiate a proceeding before the
Surface Transportation Board (33
U.S.C. 1507, 1511(a)).
(bb) Carry out the functions and exercise the authorities vested in the
Secretary by sections 202(b), 203(b),
203(g), and 213(g) of division c, title II,
Public Law 105277, which relate to
ownership and control requirements for
vessel fishery endorsements for vessels
measuring 100 feet and greater.
(cc) Exercise the authority vested in
the Secretary of Transportation by section 408(a) of Public Law 105383 approved November 13, 1998, (112 Stat.
3411 and 3430), 46 U.S.C. 2302(e), relating
to the enforcement of the prohibition
of shipment of Government-impelled
cargoes on vessels if (1) the vessel has
been detained and determined to be
substandard by the Secretary of Transportation for violation of an international safety convention to which
the United States is a party; or (2) the
operator of the vessel has on more than
one occasion had a violation of an
international safety convention to
which the United States is a party. The
term Government-impelled cargo
means cargo for which a Federal agency contracts directly for shipping by
water or for which (or the freight of
which) a Federal agency provides financing, including financing by grant,
loan, or loan guarantee, resulting in
shipment of the cargo by water.
(dd) Carry out the functions and exercise the authority vested in the Secretary by section 109 of the Maritime
Transportation Security Act of 2002,
Public Law 107295, 116 Stat. 2064, provide training for maritime security
professionals. This authority may be
redelegated.
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1.67
(ee) Carry out the functions and exercise the authorities vested in the Secretary by section 3517 of Title XXXV of
Public Law 108136 which relates to the
Maintenance and Repair Reimbursement Pilot Program.
(ff) Carry out the functions and exercise the authorities vested in the Secretary by Subtitle V of title 46 United
States Code, which establishes the
Maritime Security Fleet.
(gg) Carry out the functions and exercise the authorities vested in the
Secretary by Subtitle D of Title XXXV
of Public Law 108136, which relates to
the National Defense Tank Vessel Construction Assistance Program.
(hh) Carry out the functions and exercise the authorities vested in the
President by section 1019 of Pub. L. 109
364 and delegated to the Secretary by
the President.
(ii) Carry out the functions and exercise the authorities vested in the Secretary of Transportation under Title
46, Chapter 556, of the United States
Code, except for those found in 46
U.S.C. 55601(c) and (d).
[Amdt. 1164, 46 FR 47459, Sept. 28, 1981]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting 1.66, see the List of CFR
Sections Affected which appears in the Finding Aids section of the printed volume and at
www.fdsys.gov.
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1.68 Delegations to the Under Secretary of Transportation for Security for the Transportation Security
Administration.
(a) Carry out the functions vested in
the Secretary by 49 U.S.C. 5103a relating to security risk determinations for
the issuance of licenses to operate
motor vehicles transporting hazardous
materials in commerce.
(b) [Reserved]
[68 FR 10989, Mar. 7, 2003]
1.70
The Director of Intelligence, Security, and Emergency Response is delegated authority for the following:
(a) Intelligence and Security. Carry out
the functions assigned to the Secretary
by the Aviation Security Improvement
Act of 1990, section 101 (Pub. L. 101508;
November 16, 1990) relating to intelligence and security matters in all
modes of transportation.
(b) Emergency preparedness and response. Carry out the functions related
to emergency preparedness vested in
the Secretary by 49 U.S.C. 101 and 301
or delegated to the Secretary by or
through the Defense Production Act of
1950, 50 U.S.C. App. 2061 et seq.; Executive Order 10480, as amended; Executive
Order 12148; Executive Order 12656; Executive Order 12742; Executive Order
12919, as amended; Reorganization Plan
No. 3 or 1978; and such other statutes,
executive orders, and other directives
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1.71
1.71
[Reserved]
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1.73
(h) Carry out the functions vested in
the Secretary by 49 U.S.C. 5701 relating
to food transportation inspections of
commercial motor vehicles; and 5113
and 31144 relating to safety fitness of
owners and operators.
(i) Carry out the functions vested in
the Secretary by 49 U.S.C. 5118 relating
to the use of inspectors to promote
safety in the highway transportation of
radioactive material; and 49 U.S.C.
31142(f) relating to application of State
regulations to government-leased vehicles and operators.
(j) Carry out the functions and exercise the authority delegated to the Secretary in section 2(d)(2) of Executive
Order 12777 (3 CFR, 1992 Comp., p. 351),
with respect to highway transportation, relating to the approval of
means to ensure the availability of private personnel and equipment to remove, to the maximum extent practicable, a worst case discharge, the review and approval of response plans,
and the authorization of motor carriers, subject to the Federal Water Pollution Control Act (33 U.S.C. 1321), to
operate without approved response
plans, except as delegated in 49 CFR
1.46(m).
(k) Carry out 49 U.S.C. 31503 as it relates to investigation of the need for
regulation of qualifications and maximum hours of service of employees of
motor carriers and motor private carriers.
(l) Carry out 49 U.S.C. 31502 relating
generally to qualifications and maximum hours of service of employees
and safety of operation and equipment
of motor carriers, motor private carriers and motor carriers of migrant
workers, except that the authority to
promulgate safety standards for commercial motor vehicles and equipment
subsequent to initial manufacture is
limited to standards that are not based
upon and similar to a Federal Motor
Vehicle Safety Standard promulgated
under chapter 301 of title 49, U.S.C.
(m) Carry out 49 U.S.C. 503 and 31504
relating generally to service of process,
designation of agents to receive service
of process, and identification of interstate motor vehicles so far as they pertain to motor private carriers of property and motor carriers of migrant
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1.74
ance with Federal motor vehicles safety standards; and the first sentence of
section (b)(2) relating to the report
concerning the findings and conclusions of the review required by section
(b)(1);
(12) Section 4146 relating to an hoursof-service exception during harvest periods;
(13) Section 4147 relating to emergency conditions requiring immediate
response;
(14) Section 4213 relating to the establishment of a working group for the
development of practices and procedures to enhance Federal-State relations;
(15) Section 4214 relating to consumer
complaint information;
(16) Section 5503 relating to the
motor carrier efficiency study; and
(17) Section 5513(a), under the condition of section (m), relating to the research grant for a thermal imaging inspection system demonstration project.
[64 FR 56270, Oct. 19, 1999, as amended at 64
FR 58357, Oct. 29, 1999; 65 FR 221, Jan. 4, 2000;
65 FR 41015, July 3, 2000; 65 FR 49765, Aug. 15,
2000; 67 FR 11582, Mar. 15, 2002; 68 FR 10989,
Mar. 7, 2003; 69 FR 51010, Aug. 17, 2004; 71 FR
30833, May 31, 2006; 71 FR 52753, Sept. 7, 2006]
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Pt. 3
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3.1
3.1 Description.
The official seal of the Department of
Transportation is described as follows:
A white abstract triskelion figure signifying motion appears within a circular blue field. The figure is symmetrical. The three branches of the figure
curve outward in a counter-clockwise
direction, each tapering almost to a
point at the edge of the field. Surrounding the blue circle is a circular
ring of letters. The upper half of the
ring shows the words Department of
Transportation. The lower half of the
ring shows the words United States of
America. The letters may be shown in
either black or medium gray. The official seal of the Department is modified
when embossed. It appears below in
black and white.
Subpart AGeneral
5.1
PART 5RULEMAKING
PROCEDURES
Subpart AGeneral
Sec.
5.1 Applicability.
5.3 Initiation of rulemaking.
5.5 Participation by interested persons.
5.7 Regulatory docket.
Filing of petitions.
Processing of petitions.
5.3
Subpart CProcedures
5.21
5.23
Initiation of rulemaking.
General.
Contents of notices.
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EC02FE91.096</GPH>
Applicability.
(a) This part prescribes general rulemaking procedures that apply to the
issuance, amendment, and repeal of
rules of the Office of the Secretary of
Transportation. It does not apply to
rules issued by the Federal Aviation
Administration, Federal Highway Administration, Federal Railroad Administration, Federal Transit Administration, Maritime Administration, National Highway Traffic Safety Administration, Research and Special Programs Administration, St. Lawrence
Seaway Development Corporation, or
Federal Motor Carrier Safety Administration.
(b) For the purposes of this part, Secretary means the Secretary of Transportation or the Under Secretary of
Transportation, or any of the following
to whom the Secretary has delegated
authority to conduct rulemaking proceedings:
(1) Any Assistant Secretary.
(2) The General Counsel.
Any of these officers may redelegate
that authority to the head of any office
who reports to him.
(c) Records relating to rulemaking
proceedings are available for inspection as provided in part 7 of this subtitle.
Regulatory docket.
5.11
5.21
Filing of petitions.
(a) Any person may petition the Secretary to issue, amend, or repeal a rule,
or for a permanent or temporary exemption from any rule.
(b) Each petition filed under this section must:
(1) Be submitted in duplicate to the
Docket Clerk, Office of the General
Counsel, Department of Transportation, Washington, DC 20590;
(2) Set forth the text or substance of
the rule or amendment proposed, or of
the rule from which the exemption is
sought, or specify the rule that the petitioner seeks to have repealed, as the
case may be;
(3) Explain the interest of the petitioner in the action requested including, in the case of a petition for an exemption, the nature and extent of the
relief sought and a description of the
Subpart CProcedures
5.21 General.
(a) Unless the Secretary finds, for
good cause, that notice is impractical,
unnecessary, or contrary to the public
interest, a notice of proposed rule making is issued and interested persons are
invited to participate in the rulemaking proceedings with respect to
each substantive rule.
(b) Unless the Secretary determines
that notice and public rulemaking proceedings are necessary or desirable, interpretive rules, general statements of
policy, and rules relating to organization, procedure, or practice are prescribed as final without notice or other
public rulemaking proceedings.
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5.23
5.23
Contents of notices.
5.31 Hearings.
(a) Sections 556 and 557 of title 5,
United States Code, do not apply to
hearings held under this part. As a
fact-finding proceeding, each hearing is
nonadversary and there are no formal
pleadings or adverse parties. Any rule
issued in a case in which a hearing is
held is not necessarily based exclusively on the record of the hearing.
(b) The Secretary designates a representative to conduct any hearing
held under this part. The General
Counsel designates a member of his
staff to serve as legal officer at the
hearing.
5.33 Adoption of final rules.
Final rules are prepared by representatives of the office concerned
and the Office of the General Counsel.
The rule is then submitted to the Secretary for his consideration. If the Secretary adopts the rule, it is published
in the FEDERAL REGISTER, unless all
persons subject to it are named and are
personally served with a copy of it.
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Pt. 6
programs outside the scope of the rule
is not adverse.
[69 FR 4458, Jan. 30, 2004]
APPENDIX A TO PART 5
Pursuant to 5.1(b), the following officials
of the Office of the Secretary of Transportation are authorized to conduct rulemaking
proceedings under this part, as specified in
this appendix:
(1) The General Counsel is authorized to
conduct all rule-making proceedings, except
the issuance of final rules, under the Act of
March 19, 1918, ch. 24, as amended (15 U.S.C.
261264); the Uniform Time Act of 1966 (80
Stat. 107, 15 U.S.C. 260267); and section
6(e)(5) of the Department of Transportation
Act (80 Stat. 939, 49 U.S.C. 1655 (e)(5)).
(2) The General Counsel is authorized to
determine the practicability of applying the
standard time of any standard time zone to
the movements of any common carrier engaged in interstate or foreign commerce,
and, under section 2 of the Act of March 19,
1918, ch. 24, as amended (15 U.S.C. 262), to
issue operating exceptions in any case in
which he determines that it is impractical to
apply the standard time.
[Amdt. 51, 32 FR 11473, Aug. 9, 1967]
PART
6IMPLEMENTATION
OF
EQUAL ACCESS TO JUSTICE ACT
IN AGENCY PROCEEDINGS
Subpart AGeneral Provisions
Sec.
6.1 Purpose of these rules.
6.3 Applicability.
6.5 Proceedings covered.
6.7 Eligibility of applications.
6.9 Standards for awards.
6.11 Allowable fees and expenses.
6.13 Delegations of authority.
Contents of application.
Net worth exhibit.
Documentation of fees and expenses.
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6.1
6.3 Applicability.
Section 6.9(a) applies to any adversary adjudication pending before the
Department on or after October 1, 1981.
In addition, applicants for awards must
also meet the standards of 6.9(b) for
any adversary adjudication commenced
on or after March 29, 1996.
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6.9
or other entity of which the applicant
directly or indirectly owns or controls
a majority of the voting shares or
other interest, will be considered an affiliate for purposes of this part, unless
the administrative law judge determines that such treatment would be
unjust and contrary to the purposes of
the Act in light of the actual relationship between the affiliated entities. In
addition, the administrative law judge
may determine that financial relationships of the applicant other than those
described in this paragraph constitute
special circumstances that would make
an award unjust.
(g) An applicant that participates in
a proceeding primarily on behalf of one
or more other persons or entities that
would be ineligible is not itself eligible
for an award.
(h) An applicant who appears pro se
in a proceeding is ineligible for award
of attorney fees. However, eligibility
for other expenses is not affected by
pro se representation.
[48 FR 1070, Jan. 10, 1983, as amended at 62
FR 19234, Apr. 21, 1997]
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6.11
6.13
Delegations of authority.
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6.21
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6.23
and paid by the majority of clients during the relevant time periods.
(2) If no hourly rate is paid by the
majority of clients because, for instance, the attorney or agent represents most clients on a contingency
basis, the attorney or agent shall provide information about two attorneys
or agents with similar experience, who
perform similar work, stating their
hourly rate.
(c) The documentation shall also include a description of any expenses for
which reimbursement is sought and a
statement of the amounts paid and
payable by the applicant or by any
other person or entity for the services
provided.
(d) The administrative law judge may
require the applicant to provide vouchers, receipts, or other substantiation
for any expenses claimed.
(e) The administrative law judge
may, within his or her discretion,
make a determination as to whether a
study, conducted by the applicant, was
necessary to the preparation of the applicants case.
6.27
6.29
6.25
Settlement.
6.31
Answer to application.
Further proceedings.
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Decision.
Sec.
7.1 General.
7.2 Definitions.
Agency review.
7.11
7.12
7.13
7.14
7.15
Applicability.
Administration of subpart.
Records available.
Requests for records.
Contacts for records requested under
the FOIA.
7.16 Requests for records of concern to more
than one government organization.
7.17 Consultation with submitters of commercial and financial information.
Judicial review.
Judicial review of final agency decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2).
6.39
Pt. 7
7.21
General.
Payment of award.
7.31
7.32
7.33
Initial determinations.
Final determinations.
Extension.
Subpart FFees
7.41
7.42
7.43
7.44
General.
Payment of fees.
Fee schedule.
Services performed without charge or
at a reduced charge.
7.45 Transcripts.
7.46 Alternative sources of information.
AUTHORITY: 5 U.S.C. 552; 31 U.S.C. 9701; 49
U.S.C. 322; E.O. 12600, 3 CFR, 1987 Comp., p.
235.
SOURCE: Amdt. 1, 63 FR 38331, July 16, 1998,
unless otherwise noted.
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7.1
7.1 General.
(a) This part implements 5 U.S.C. 552,
and prescribes rules governing the
availability to the public of DOT
records. Many documents are made
available to the public for inspection
and copying through DOTs Primary
Electronic Access Facility and public
record unit locations that are discussed
in subpart B of this part, which contains the DOT regulations concerning
the availability to the public of opinions issued in the adjudication of cases,
policy issuances, administrative manuals, and other information made available to the public, without need for a
specific request.
(b) Subpart C of this part describes
the records that are not required to be
disclosed on DOTs own action under
this part, but that may be available
upon request under FOIA.
(c) Indices are maintained to reflect
all records subject to subpart B of this
part, and are available for public inspection and copying as provided in
subpart B.
7.2 Definitions.
Unless the context requires otherwise, the following definitions apply in
this part:
Act and FOIA mean the Freedom of
Information Act, 5 U.S.C. 552, as
amended.
Administrator means the head of each
component of DOT and includes the
Under Secretary for Security, the Commandant of the Coast Guard, the Inspector General, and the Director of
the Bureau of Transportation Statistics.
Concurrence means that the approval
of the person being consulted is required in order for the subject action
to be taken.
Consultation means that the approval
of the person being consulted is not required in order for the subject action
to be taken.
Department means the Department of
Transportation, including the Office of
the Secretary, the Office of Inspector
General, and the following DOT Operating Administrations, all of which
may be referred to as DOT components.
Means of contacting each of these DOT
[Amdt. 1, 63 FR 38331, July 16, 1998, as amended at 67 FR 54746, Aug. 26, 2002; 73 FR 33328,
June 12, 2008; 75 FR 5244, Feb. 2, 2010]
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7.5
Publication required.
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7.6
on, or used as precedent by DOT to affect any member of the public adversely unless the person to whose detriment it is relied on, used, or cited has
had actual timely notice of the material.
(c) This section does not apply to material that is published in the FEDERAL
REGISTER or covered by subpart C of
this part.
7.8
7.6
7.9
Protection of records.
(a) Records made available for inspection and copying may not be removed, altered, destroyed, or mutilated.
(b) 18 U.S.C. 641 provides for criminal
penalties for embezzlement or theft of
government records.
(c) 18 U.S.C. 2071 provides for criminal penalties for the willful and unlawful concealment, mutilation or destruction of, or the attempt to conceal,
mutilate, or destroy, government
records.
Copies
7.10
Public records.
Publicly available records are located in DOTs Primary Electronic Access Facility at 1200 New Jersey Avenue, SE., Washington, DC 20590.
(a) The Primary Electronic Access
Facility maintains materials for the
Office of the Secretary, including
former Civil Aeronautics Board material, and materials for the DOT components. This facility is located at Room
W94128, and the hours of operation are
10:0017:00 eastern time.
(b) Certain DOT components also
maintain public record units at regional offices. These facilities are open
to the public Monday through Friday
except Federal holidays, during regular
working hours. The Saint Lawrence
Seaway Development Corporation has
facilities at 180 Andrews Street,
Massena, New York 136620520.
(c) Operating Administrations may
have separate facilities for manual
records. Additional information on the
location and hours of operations for inspection facilities can be obtained
through DOTs Primary Electronic Access Facility, at (202) 3669322.
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7.13
7.13
Records available.
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7.14
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7.15
copying would endanger the quality of
the original or raise the reasonable
possibility of irreparable harm to the
record. In these instances, copying of
the original would not be in the public
interest. In any event, original records
will not be released from DOT custody.
Original records, regardless of format,
may be returned to agency service
upon provision of a copy of the record
to the requestor, or, in the case of a denial, upon creation and retention of a
copy of the original for purposes of
FOIA processing.
(2) DOT will make a reasonable effort
to search for requested records in electronic form or format, unless doing so
would significantly interfere with operation of the affected automated information system.
(f) If a requested record is known not
to exist in the files of the agency, or to
have been destroyed or otherwise disposed of, the requestor will be so notified.
(g) Fees will be determined in accordance with subpart F of this part.
(h) Notwithstanding paragraphs (a)
through (g) of this section, informational material, such as news releases,
pamphlets, and other materials of that
nature that are ordinarily made available to the public as a part of any information program of the Government
will be available upon oral or written
request. A fee will be not be charged
for individual copies of that material
so long as the material is in supply. In
addition DOT will continue to respond,
without charge, to routine oral or written inquiries that do not involve the
furnishing of records.
7.15 Contacts for records requested
under the FOIA.
Each person desiring a record under
this subpart should submit a request in
writing (via paper, facsimile, or electronic mail) to the DOT component
where the records are located:
(a) FOIA Offices at 1200 New Jersey
Avenue, SE., Washington, DC 20590:
(1) Office of the Secretary of Transportation, Room W94122.
(2) Office of Inspector General, Room
W73407.
(3) Federal Highway Administration,
Room E64302.
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7.16
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7.21
Subpart DProcedures for Appealing Decisions Not To Disclose Records and/or Waive
Fees
7.21
General.
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7.31
Initial determinations.
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7.32
(4) Within ten calendar days of receipt of a request for expedited processing, the proper component will decide whether to grant it and will notify
the requestor of the decision. If a request for expedited treatment is granted, the request will be given priority
and will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously.
7.32 Final determinations.
(a) A determination with respect to
any appeal made pursuant to 7.21 will
be made within twenty Federal working days after receipt of such appeal
except that this time limit may be extended by up to ten Federal working
days in accordance with 7.33. The person making the request will be notified
immediately of such determination
pursuant to 7.21.
(b) In general. Components ordinarily
will respond to appeals according to
their order of receipt.
(c) Multitrack processing. (1) A component may use two or more processing
tracks by distinguishing between simple and more complex appeals based on
the amount of work and/or time needed
to process the appeal, or on the number
of pages involved.
(2) A component using multitrack
processing may provide persons making appeals in its slower track(s) with
an opportunity to limit the scope of
their appeals in order to qualify for
faster processing within the specified
limits of the components faster
track(s). A component doing so will
contact the person making the appeal
either by telephone, letter, facsimile,
or electronic mail, whichever is most
efficient in each case.
(d) Expedited processing. (1) An appeal
will be taken out of order and given expedited treatment whenever a compelling need is demonstrated and it is determined that the compelling need involves:
(i) Circumstances in which the lack
of expedited treatment could reasonably be expected to pose an imminent
threat to the life or physical safety of
an individual;
(ii) A request made by a person primarily engaged in disseminating information, with an urgency to inform the
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7.33
7.33 Extension.
(a) In unusual circumstances as specified in this section, the time limits
prescribed in 7.31 and 7.32 may be extended by written notice to the person
making the request setting forth the
reasons for such extension and the date
on which a determination is expected
to be dispatched. Such notice may not
specify a date that would result in a
cumulative extension of more than 10
Federal working days without pro-
Subpart FFees
7.41
General.
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7.42
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7.43
7.44 Services
performed
without
charge or at a reduced charge.
(a) A fee is not to be charged to any
requestor making a request under subpart C of this part for the first two
hours of search time unless the records
are requested for commercial use. For
purposes of this subpart, when a computer search is required two hours of
search time will be considered spent
when the hourly costs of operating the
central processing unit used to perform
the search added to the computer operators salary cost (hourly rate plus 16
percent) equals two hours of the computer operators salary costs (hourly
rate plus 16 percent).
(b) A fee is not to be charged for any
time spent searching for a record requested under subpart C if the records
are not for commercial use and the requestor is a representative of the news
media, an educational institution
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7.46
(4) Whether the contribution to public understanding of Federal government operations or activities will be
significant;
(5) Whether the requestor has a commercial
interest
that
would
be
furthered by the requested disclosure;
and
(6) Whether the magnitude of any
identified commercial interest to the
requestor is sufficiently large in comparison with the public interest in disclosure that disclosure is primarily in
the commercial interest of the requestor.
(g) Documents will be furnished without charge or at a reduced charge if the
official having initial denial authority
determines that the request concerns
records related to the death of an immediate family member who was, at
the time of death, a DOT employee.
(h) Documents will be furnished without charge or at a reduced charge if the
official having initial denial authority
determines that the request is by the
victim of a crime who seeks the record
of the trial at which the requestor testified.
[Amdt. 1, 63 FR 38331, July 16, 1998, as amended at 73 FR 33328, June 12, 2008]
7.45 Transcripts.
Transcripts of hearings or oral arguments are available for inspection.
Where transcripts are prepared by a
nongovernmental contractor, and the
contract permits DOT to handle the reproduction of further copies, 7.43 applies. Where the contract for transcription services reserves the sales
privilege to the reporting service, any
duplicate copies must be purchased directly from the reporting service.
7.46 Alternative sources of information.
In the interest of making documents
of general interest publicly available
at as low a cost as possible, alternative
sources will be arranged whenever possible. In appropriate instances, material that is published and offered for
sale may be obtained from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC
20402; U.S. Department of Commerces
National Technical Information Service (NTIS), Springfield, Virginia 22151;
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Pt. 8
or National Audio-Visual Center, National Archives and Records Administration, Capital Heights, MD 207433701.
8.3 Applicability.
This part applies to all elements of
the Department of Transportation.
8.5 Definitions.
As used in this part:
Classification means the act or process by which information is determined
to be classified information.
Classification levels means the following three levels at which information may be classified:
(a) Top secret. Information that requires the highest degree of protection,
and the unauthorized disclosure of
which could reasonably be expected to
cause exceptionally grave damage to
the national security that the original
classification authority is able to identify or describe.
(b) Secret. Information that requires
a substantial degree of protection, and
the unauthorized disclosure of which
could reasonably be expected to cause
serious damage to the national security that the original classification authority is able to identify or describe.
(c) Confidential. Information that requires protection and the unauthorized
disclosure of which could reasonably be
expected to cause damage to the national security that the original classification authority is able to identify or
describe.
Classified information or classified
national security information means
information that has been determined
under Executive Order 12958, or any
predecessor or successor order, to require protection against unauthorized
disclosure, and is marked to indicate
its classified status when in documentary form.
Clearance means that an individual is
eligible, under the standards of Executive Orders 10450 and 12968 and appropriate DOT regulations, for access to
classified information.
Damage to the national security means
harm to the national defense or foreign
relations of the United States from the
unauthorized disclosure of information,
to include the sensitivity, value, and
utility of that information.
Declassification means the authorized
change in the status of information
Subpart AGeneral
Sec.
8.1 Scope.
8.3 Applicability.
8.5 Definitions.
8.7 Spheres of responsibility.
Subpart BClassification/Declassification
of Information
8.9
Subpart AGeneral
8.1
Scope.
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8.9
and who will report his/her findings
and recommendations to the Assistant
Secretary for Administration, heads of
Departmental elements, and, as appropriate, to the Secretary.
(c) Secretarial Officers and heads of
Departmental elements will assure
that the provisions in this part are effectively administered, that adequate
personnel and funding are provided for
this purpose, and that corrective actions that may be warranted are taken
promptly.
Subpart BClassification/
Declassification of Information
8.9 Information
Committee.
Security
(a) There is hereby established a Department of Transportation Information Security Review Committee,
which will have authority to:
(1) Act on all suggestions and complaints not otherwise resolved with respect to the Departments administration of Executive Order 12958 and implementing directives, including those
regarding overclassification, failure to
declassify, or delay in declassifying;
(2) Act on appeals of requests for
classification reviews, and appeals of
requests for records under 5 U.S.C. 552
(Freedom of Information Act) when the
initial, and proposed final, denials are
based on continued classification of the
record; and
(3) Recommend to the Secretary,
when necessary, appropriate administrative action to correct abuse or violation of any provision of Executive
Order 12598 and implementing directives.
(b) The Information Security Review
Committee will be composed of the Assistant Secretary for Administration,
who will serve as Chair; the General
Counsel; and the Director of Security
and
Administrative
Management.
When matters affecting a particular
Departmental agency are at issue, the
Associate Administrator for Administration for that agency, or the Chief of
Staff for the U.S. Coast Guard, as the
case may be, will participate as an ad
hoc member, together with the Chief
Counsel of that agency. Any regular
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8.11
Classification challenges.
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8.19
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8.21
Burden of proof.
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8.29
8.25 Personnel
Security
Review
Board.
(a) There is hereby established a Department of Transportation Personnel
Security Review Board, which will, on
behalf of the Secretary of Transportation (except in any case in which the
Secretary personally makes the decision), make the administratively final
decision on an appeal arising in any
part of the Department from:
(1) A decision not to grant access to
classified information;
(2) A decision to revoke access to
classified information; or
(3) A decision under 8.29 to deny access to classified information.
(b) The Personnel Security Review
Board will be composed of:
(1) Two persons appointed by the Assistant Secretary for Administration:
one from the Office of Personnel and
Training, and one, familiar with personnel security adjudication, from the
Office of Security and Administrative
Management, who will serve as Chair;
(2) One person appointed by the General Counsel, who, in addition to serving as a member of the Board, will provide to the Board whatever legal services it may require; and
(3) One person appointed by each of
the Commandant of the Coast Guard
and the Federal Aviation Administrator.
(4) Any member may designate a representative, meeting the same criteria
as the member, with full power to serve
in his/her place.
(c) In carrying out its responsibilities
to review final decisions to revoke or
deny access to classified information,
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8.31
(b) Former Presidential appointees. Persons who previously occupied policymaking positions to which they were
appointed by the President may be
granted access to classified information or material that they originated,
reviewed, signed, or received, while in
public office, provided that:
(1) It is determined that such access
is clearly consistent with the interests
of national security; and
(2) The person agrees to safeguard
the information, to authorize a review
of the persons notes to assure that
classified information is not contained
therein, and that the classified information will not be further disseminated or published.
(5) If access to TOP SECRET or intelligence or communications security information is involved a special background investigation is required. However, this investigation will not be requested until the matter has been referred through channels to the Director
of Security and Administrative Management for determination as to adequacy of the justification and the consent of other agencies as required.
(6) When it is indicated that an applicants research may extend to material
originating in the records of another
agency, approval must be obtained
from the other agency prior to the
grant of access.
(7) Approvals for access will be valid
for the duration of the current research
project but no longer than 2 years from
the date of issuance, unless renewed. If
a subsequent request for similar access
is made by the individual within one
year from the date of completion of the
current project, access may again be
granted without obtaining a new National Agency Check. If more than one
year has elapsed, a new National Agency Check must be obtained. The local
security office will promptly advise its
headquarters security staff of all approvals of access granted under the
provisions of this section.
(8) An applicant may be given access
only to that classified information that
is directly pertinent to the applicants
approved project. The applicant may
review files or records containing classified information only in offices under
the control of the Department. Procedures must be established to identify
classified material to which the applicant is given access. The applicant
must be briefed on local procedures established to prevent unauthorized access to the classified material while in
the applicants custody, for the return
of the material for secure storage at
the end of the daily working period,
and for the control of the applicants
notes until they have been reviewed. In
addition to the security review of the
applicants manuscript, the manuscript
must be reviewed by appropriate offices to assure that it is technically accurate insofar as material obtained
from the Department is concerned, and
is consistent with the Departments
public release policies.
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Pt. 9
9.1
Purpose.
9.2 Applicability.
This part applies to the testimony of
an employee in legal proceedings in
which the United States is a party. It
also applies in legal proceedings between private litigants to requests or
demands for testimony or records concerning information acquired in the
course of an employee performing official duties or because of the employees
official status. This part does not apply
to any legal proceeding in which an
employee is to testify as to facts or
events that are in no way related to
the employees official duties or the
functions of the Department. Nor does
it apply to Congressional demands for
testimony or documents.
9.3 Definitions.
For purposes of this part:
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9.7
Testimony means any written or oral
statement by a witness, including
depositions, answers to interrogatories,
affidavits, declarations, and statements at a hearing or trial.
9.5 General prohibition of production
or disclosure in legal proceedings.
No employee of the Department may
provide testimony or produce any material contained in the files of the Department, or disclose any information
relating to, or based upon, material
contained in the files of the Department, or disclose any information or
produce any material acquired as part
of the performance of that employees
official duties or because of that employees official status unless authorized in accordance with this part, or by
other applicable law.
9.7 Testimony by employees before
the Department or in other legal
proceedings in which the United
States is a party.
In any legal proceeding before the
Department or in which the United
States (including any federal agency or
officer of the United States) is a party:
(a) Agency counsel shall arrange for
an employee to testify as a witness for
the United States whenever the attorney representing the United States requests it.
(b) An employee may testify for the
United States both as to facts within
the employees personal knowledge and
as an expert or opinion witness. Except
as provided in paragraph (c) of this section, an employee may not testify as
an expert or opinion witness, with regard to any matter arising out of the
employees official duties or the functions of the Department, for any party
other than the United States in any
legal proceeding in which the United
States is a party. An employee who receives a demand to testify on behalf of
a party other than the United States
may testify as to facts within the employees personal knowledge, provided
that the testimony be subject to the
prior approval of agency counsel and to
the Federal Rules of Civil Procedure
and any applicable claims of privilege.
(c) An employee may testify as an expert or opinion witness on behalf of an
officer or enlisted member of the Coast
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9.9
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9.15
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9.17
one least burdensome to the Department that will provide the needed information, will be permitted for each
witness.
(b) The party seeking the testimony
shall include with its request for testimony a copy of any prior request(s)
made by the same requester to the Department or other agency of the United
States for records pertaining to the
matter being litigated and of the response (not including the records themselves) to the request(s). The party
seeking the testimony shall also comply with any agency counsel request
that copies of the records previously
disclosed by the Department, or a list
of those records, be furnished.
(c) In accordance with the requirement of this section and the general
provisions of this part, agency counsel
shall notify the requester of the approval or denial of the request. Agency
counsel may attach special conditions
to its approval.
Subpart BGeneral
10.11
10.13
10.15
9.17 Legal proceedings between private litigants: Procedures for taking testimony.
Administration of part.
Privacy Officer.
Protection of records.
General.
Accounting of disclosures.
Mailing lists.
Government contractors.
Social Security numbers.
10.51
General.
10.61
10.63
General exemptions.
Specific exemptions.
Subpart GExemptions
Subpart HFees
10.71
10.73
10.75
10.77
General.
Payment of fees.
Fee schedule.
Services performed without charge.
10.81
10.83
Improper disclosure.
Improper maintenance of records.
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10.3 Policy.
It is the policy of the Department of
Transportation to comply with the letter and the spirit of the Privacy Act
(the Act). Therefore, personal data contained in each system of records is afforded adequate protection against unauthorized access, is as accurate as is
feasible, and is limited to that necessary to accomplish the stated use or
uses of the system. Further, no system
of records is exempted from the requirements of the Act unless it is determined that to do so is in the best interest of the government with due concern for individual rights.
10.5
10.5 Definitions.
Unless the context requires otherwise, the following definitions apply in
this part:
Administrator means the head of an
operating administration and includes
the Under Secretary for Security and
the Commandant of the Coast Guard.
Department means the Department of
Transportation, including the Office of
the Secretary, the Office of Inspector
General, and the following operating
administrations: This definition specifically excludes the Surface Transportation Board, which has its own Privacy Act regulations (49 CFR Part
1007), except to the extent that any system of records notice provides otherwise.
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10.11
such record for a purpose which is compatible with the purpose for which it
was collected.
10.15
Subpart BGeneral
10.11
Administration of part.
Whoever * * * steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or
disposes of any record * * * or thing of value
of the United States or of any department or
agency thereof * * * shall be fined not more
than $10,000 or imprisoned not more than 10
years or both; but if the value of such property does not exceed the sum of $100, he shall
be fined not more than $1,000 or imprisoned
not more than one year or both * * *.
10.13
Protection of records.
(a) No person may, without permission, remove any record made available
for inspection or copying under this
part from the place where it is made
available. In addition, no person may
steal, alter, mutilate, obliterate, or destroy, in whole or in part, such a
record.
(b) Section 641 of title 18 of the
United States Code provides, in pertinent part, as follows:
Subpart CMaintenance of
Records
Privacy Officer.
10.21
General.
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10.23
pleteness as is reasonably necessary to
assure fairness to the individual in the
determination;
(f) Prior to disseminating any record
about an individual to any person
other than an agency, unless the dissemination is made pursuant to
10.35(a)(2), makes reasonable efforts to
assure that such records are accurate,
complete, timely, and relevant for the
Departments purposes;
(g) Maintains no record describing
how any individual exercises rights
guaranteed by the First Amendment
unless:
(1) Expressly authorized by the General Counsel; and
(2) Expressly authorized by statute or
by the individual about whom the
record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity;
(h) Makes reasonable efforts to serve
notice on an individual when any
record on such individual is made
available to any person under compulsory legal process when such process
becomes a matter of public record.
10.23 Accounting of disclosures.
Each operating administration, the
Office of Inspector General, and the Office of the Secretary, with respect to
each system of records under its control:
(a) Except for disclosures made under
10.35(a) (1) or (2) of this part, keep an
accurate accounting of:
(1) The date, nature, and purpose of
each disclosure of a record to any person or to another agency made under
10.33; and
(2) The name and address of the person or agency to whom the disclosure
is made;
(b) Retains the accounting made
under paragraph (a) of this section for
at least five years or the life of the
record, whichever is longer, after the
disclosure for which the accounting is
made;
(c) Except for disclosures made under
10.33(a)(7) of this part, makes the accounting made under paragraph (a)(1)
of this section available to the individual named in the record at his request; and
(d) Informs any person or other agency about any correction or notation of
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10.25
dispute made by the agency in accordance with 10.45 of any record that has
been disclosed to the person or agency
if an accounting of the disclosure was
made.
10.25
Mailing lists.
Government contractors.
10.29
10.33
(a) Requests by an individual to determine whether he or she is the subject of a record in a system of records,
or requesting access to a record in a
system of records, should be acknowledged within 10 working days, where
the request is by mail. For requests in
person, an immediate response is given,
either granting access or informing
such individual when notification or
access may be expected.
(b) If the response granting access or
copies of the record is made within 10
working days, separate acknowledgment is not required.
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10.35
10.35
(8) To a person pursuant to a showing
of compelling circumstances affecting
the health or safety of an individual if
upon such disclosure notification is
transmitted to the last known address
of such individual;
(9) To either House of the Congress,
or to the extent of matters within its
jurisdiction, any committee or subcommittee thereof, any joint committee of the Congress or subcommittee of any such joint committee;
(10) To the Comptroller General, or
any authorized representatives, in the
course of the performance of the duties
of the General Accounting Office; or
(11) Pursuant to the order of a court
of competent jurisdiction.
(12) To a consumer reporting agency
in accordance with 31 U.S.C. 3711(f).
(b) Any individual requesting access
to his or her record or to any information pertaining to that individual
which is contained within a system of
records within the Department has access to that record or information unless the system of records within which
the record or information is contained
is exempted from disclosure in accordance with subpart G, provided, however, that nothing in this part is
deemed to require that an individual be
given access to any information compiled in reasonable anticipation of a
civil action or proceeding. No exemption contained in subpart G of part 7 of
the regulations of the Office of the Secretary is relied upon to withhold from
an individual any record which is otherwise accessible to such individual
under the provisions of this part. Any
individual who is given access to a
record or information pertaining to
him is permitted to have a person of
his or her own choosing accompany
him and to have a copy made of all or
any portion of the record or information in a form comprehensible to the
individual. When deemed appropriate,
the individual may be required to furnish a written statement authorizing
discussion of his record in the accompanying persons presence.
(c) Medical records. Where requests
are for access to medical records, including psychological records, the decision to release directly to the individual, or to withhold direct release,
Conditions of disclosure.
(a) No record that is contained within a system of records of the Department is disclosed by any means of communication to any person, or to another agency, except pursuant to a
written request by, or with the prior
written consent of, the individual to
whom the record pertains, unless disclosure of the record would be:
(1) To those officers and employees of
the Department who have a need for
the record in the performance of their
duties;
(2) Required under part 7 of this title
which implements the Freedom of Information Act;
(3) For a routine use as defined in
10.5 and described pursuant to
10.21(d)(4);
(4) To the Bureau of the Census for
purposes of planning or carrying out a
census or survey or related activity
pursuant to the provisions of title 13,
United States Code;
(5) To a recipient who has provided
the Department with advance adequate
written assurance that the record will
be used solely as a statistical research
or reporting record, and the record is
to be transferred in a form that is not
individually identifiable;
(6) To the National Archives of the
United States as a record which has
sufficient historical or other value to
warrant its continued preservation by
the U.S. Government, or for evaluation
by the Administrator of General Services or his designee to determine
whether the record has such value;
(7) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of
the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the
head of the agency or instrumentality
has made a written request to the
agency which maintains the record
specifying the particular portion desired and the law enforcement activity
for which the record is sought;
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10.37
or, upon reasonable notice, at the document inspection facilities of the Office
of the Secretary or each administration. Original records may be copied
but may not be released from custody.
Upon payment of the appropriate fee,
copies are mailed to the requester.
[62 FR 23667, May 1, 1997]
of
individual
10.43
Time limits.
Statement of disagreement.
Location of records.
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of
10.39
correction
10.37 Identification
making request.
for
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223214
has filed such a statement of disagreement, the portions of the record which
are disputed are noted clearly and copies of the statement of disagreement
provided. If the Administrator concerned or his or her delegee, or in the
case of the Office of the Secretary, the
General Counsel or his or her delegee,
deems it appropriate, copies of a concise statement of the reasons for not
making the amendments requested
may be provided along with the statement of disagreement.
10.51
10.51 General.
(a) Each officer or employee of the
Department who, upon a request by a
member of the public for a record
under this part, makes a determination
that access is not to be granted or who
determines not to amend a record in a
requested manner, gives a written
statement of the reasons for that determination to the person making the
request and indicates the name and
title or position of each person responsible for the denial of such request and
the procedure for appeal within the Department.
(b) Any person:
(1) Who has been given a determination pursuant to paragraph (a) of this
section, that access will not be granted; or
(2) Who has been informed that an
amendment to a requested record will
not be made; may apply to the Administrator concerned, or in the case of the
Office of the Secretary, to the General
Counsel for review of that decision. A
determination that access will not be
granted or a record amended is not administratively final for the purposes of
judicial review unless it was made by
the Administrator concerned or his or
her delegee, or the General Counsel or
his or her delegee, as the case may be.
Upon a determination that an appeal
will be denied, the requester is informed in writing of the reasons for the
determination, and the names and titles or positions of each person responsible for the determination, and that
the determination may be appealed to
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10.61
Subpart GExemptions
10.61
General exemptions.
(a) The Assistant Secretary for Administration, with regard to the Investigations Division; and the Federal
Aviation Administrator, with regard to
the FAAs Investigative Record System
(DOT/FAA 815) may exempt from any
part of the Act and this part except
subsections (b), (c)(1) and (2), (e)(4)(A)
through (F), (e)(6), (7), (9), (10), and (11),
and (i) of the Act, and implementing
10.35, 10.23(a) and (b), 10.21(d)(1)
through (6), 10.81, 10.83, and 10.85 of this
chapter, any systems of records, or portions thereof, which they maintain
which consist wholly of;
(1) Information compiled for the purpose of identifying individual criminal
offenders and alleged offenders and
consisting only of identifying data and
notations of arrests, the nature and
disposition of criminal charges, sentencing, confinement, release, and parole and probation status;
(2) Information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an
identifiable individual; or
(3) Reports identifiable to an individual compiled at any stage of the
process of enforcement of the criminal
laws from arrest or indictment through
release from supervision.
(b) The requirements (including general notice) of sections 553(b)(1), (2) and
(3), and (c) and (e) of title 5, United
States Code, will be met by publication
in appendix A to this part, which must,
at a minimum, specify:
(1) The name of the system; and
(2) The specific provisions of the Act
from which the system is to be exempted and the reasons therefor.
(c) Any decision to exempt a system
of records under this section is subject
to concurrence by the General Counsel.
(d) Any person may petition the Secretary in accordance with the provisions of part 5 of this title, to institute
a rulemaking proceeding for the
amendment or repeal of any exemptions established under this section.
[45 FR 8993, Feb. 11, 1980, as amended at 58
FR 67697, Dec. 22, 1993; 73 FR 33329, June 12,
2008]
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10.77
Subpart HFees
10.71 General.
This subpart prescribes fees for services performed for the public under this
part by the Department.
10.73 Payment of fees.
The fees prescribed in this subpart
may be paid by check, draft, or postal
money order payable to the Treasury
of the United States.
10.75
Fee schedule.
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3.15
3.50
6.25
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.15
.50
.25
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10.81
10.83 Improper
records.
10.85
Any person who knowingly and willfully requests or obtains any record
concerning an individual from the Department under false pretenses is
guilty of a misdemeanor and fined not
more than $5,000 in accordance with 5
U.S.C. 552a(i)(3).
APPENDIX TO PART 10EXEMPTIONS
Part I. General Exemptions
Those portions of the following systems of
records that consist of (a) Information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data
and notations of arrests, the nature and disposition of criminal charges, sentencing,
confinement, release, and parole and probation status; (b) information compiled for the
purpose of a criminal investigation, including reports of informants and investigators,
and associated with an identifiable individual; or (c) reports identifiable to an individual compiled at any stage of the process
of enforcement of the criminal laws from arrest or indictment through release from supervision, are exempt from all parts of 5
U.S.C. 552a except subsections (b) (Conditions of disclosure); (c) (1) and (2) (Accounting of certain disclosures); (e)(4) (A) through
(F) (Publication of existence and character
of system); (e)(6) (Ensure records are accurate, relevant, timely, and complete before
disclosure to person other than an agency
and other than pursuant to a Freedom of Information Act request), (7) (Restrict recordkeeping on First Amendment rights), (9)
(Rules of conduct), (10) (Safeguards), and (11)
(Routine use publication); and (i) (Criminal
penalties):
A. The Investigative Records System
maintained by the Assistant Inspector General for Investigations, Office of the Inspector General, Office of the Secretary (DOT/
OST 100).
B. Police Warrant Files and Central Files
maintained by the Federal Aviation Administration (DOT/FAA 807).
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10.81
maintenance
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take appropriate measures to impede the investigation, as by destroying evidence, intimidating potential witnesses, fleeing the
area to avoid the thrust of the investigation,
etc.
2. From subsections (d), (e)(4)(G), (H), and
(I), and (f), because granting an individual
access to investigative records, and granting
him/her access to investigative records with
that information, could interfere with the
overall law enforcement process by revealing
a pending sensitive investigation, possibly
identify a confidential source, disclose information that would constitute an unwarranted invasion of another individuals personal privacy, reveal a sensitive investigative technique, or constitute a potential danger to the health or safety of law enforcement personnel.
B. The following systems of records are exempt from subsections (c)(3) (Accounting of
Certain Disclosures) and (d) (Access to
Records) of 5 U.S.C. 552a, in accordance with
5 U.S.C. 552a(k)(2):
1. General Air Transportation Records on
Individuals, maintained by various offices in
the Federal Aviation Administration (DOT/
FAA 847).
2. Investigative Records System, maintained by the Assistant Inspector General for
Investigations in the Office of the Inspector
General (DOT/OST 100).
These exemptions are justified for the following reasons:
1. From subsection (c)(3), because making
available to a record subject the accounting
of disclosures from records concerning him/
her would reveal investigative interest by
not only DOT but also the recipient agency,
thereby permitting the record subject to
take appropriate measures to impede the investigation, as by destroying evidence, intimidating potential witnesses, fleeing the
area to avoid the thrust of the investigation,
etc.
2. From subsection (d), because granting an
individual access to investigative records
could interfere with the overall law enforcement process by revealing a pending sensitive investigation, possibly identify a confidential source, disclose information that
would constitute an unwarranted invasion of
another individuals personal privacy, reveal
a sensitive investigative technique, or constitute a potential danger to the health or
safety of law enforcement personnel.
C. The system of records known as the
Alaska Railroad Examination of Operating
Personnel, maintained by the Alaska Railroad, Federal Railroad Administration (DOT/
FRA 100), is exempt from the provisions of
subsection (d) of 5 U.S.C. 552a. The release of
these records would compromise their value
as impartial measurement standards for appointment and promotion within the Federal
Service.
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11.101
Sec.
11.101 To what does this policy apply?
11.102 Definitions.
11.103 Assuring compliance with this policyresearch conducted or supported by
any Federal Department or Agency.
11.10411.106 [Reserved]
11.107 IRB membership.
11.108 IRB functions and operations.
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11.101
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11.102
11.102 Definitions.
(a) Department or agency head means
the head of any federal department or
agency and any other officer or employee of any department or agency to
whom authority has been delegated.
(b) Institution means any public or
private entity or agency (including federal, state, and other agencies).
(c) Legally authorized representative
means an individual or judicial or
other body authorized under applicable
law to consent on behalf of a prospective subject to the subjects participation in the procedure(s) involved in the
research.
(d) Research means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge. Activities which
meet this definition constitute research for purposes of this policy,
whether or not they are conducted or
supported under a program which is
considered research for other purposes.
For example, some demonstration and
service programs may include research
activities.
(e) Research subject to regulation, and
similar terms are intended to encompass those research activities for which
a federal department or agency has
specific responsibility for regulating as
a research activity, (for example, Investigational New Drug requirements
administered by the Food and Drug Administration). It does not include research activities which are incidentally regulated by a federal department
or agency solely as part of the departments or agencys broader responsibility to regulate certain types of activities whether research or non-research in nature (for example, Wage
and Hour requirements administered
by the Department of Labor).
(f) Human subject means a living individual about whom an investigator
(whether professional or student) conducting research obtains
(1) Data through intervention or
interaction with the individual, or
behavior, does not apply to research with
children, subpart D, except for research involving observations of public behavior when
the investigator(s) do not participate in the
activities being observed.
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11.103
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11.103
pension or termination of IRB approval.
(c) The assurance shall be executed
by an individual authorized to act for
the institution and to assume on behalf
of the institution the obligations imposed by this policy and shall be filed
in such form and manner as the department or agency head prescribes.
(d) The department or agency head
will evaluate all assurances submitted
in accordance with this policy through
such officers and employees of the department or agency and such experts
or consultants engaged for this purpose
as the department or agency head determines to be appropriate. The department or agency heads evaluation will
take into consideration the adequacy
of the proposed IRB in light of the anticipated scope of the institutions research activities and the types of subject populations likely to be involved,
the appropriateness of the proposed initial and continuing review procedures
in light of the probable risks, and the
size and complexity of the institution.
(e) On the basis of this evaluation,
the department or agency head may
approve or disapprove the assurance, or
enter into negotiations to develop an
approvable one. The department or
agency head may limit the period during which any particular approved assurance or class of approved assurances
shall remain effective or otherwise
condition or restrict approval.
(f) Certification is required when the
research is supported by a federal department or agency and not otherwise
exempted or waived under 11.101 (b) or
(i). An institution with an approved assurance shall certify that each application or proposal for research covered
by the assurance and by 11.103 of this
Policy has been reviewed and approved
by the IRB. Such certification must be
submitted with the application or proposal or by such later date as may be
prescribed by the department or agency to which the application or proposal
is submitted. Under no condition shall
research covered by 11.103 of the Policy be supported prior to receipt of the
certification that the research has been
reviewed and approved by the IRB. Institutions without an approved assurance covering the research shall certify
within 30 days after receipt of a request
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11.10411.106
for such a certification from the department or agency, that the application or proposal has been approved by
the IRB. If the certification is not submitted within these time limits, the
application or proposal may be returned to the institution.
(Approved by the Office of Management and
Budget under Control Number 09900260)
[56 FR 28012, 28023, June 18, 1991; 56 FR 29756,
June 28, 1991, as amended at 70 FR 36328,
June 23, 2005]
11.10411.106
11.107
[Reserved]
IRB membership.
(a) An IRB shall review and have authority to approve, require modifications in (to secure approval), or disapprove all research activities covered
by this policy.
(b) An IRB shall require that information given to subjects as part of informed consent is in accordance with
11.116. The IRB may require that information, in addition to that specifically mentioned in 11.116, be given to
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(2) Minor changes in previously approved research during the period (of
one year or less) for which approval is
authorized.
11.111
(a) The Secretary, HHS, has established, and published as a Notice in the
FEDERAL REGISTER, a list of categories
of research that may be reviewed by
the IRB through an expedited review
procedure. The list will be amended, as
appropriate after consultation with
other
departments
and
agencies,
through periodic republication by the
Secretary, HHS, in the FEDERAL REGISTER. A copy of the list is available
from the Office for Human Research
Protections, HHS, or any successor office.
(b) An IRB may use the expedited review procedure to review either or both
of the following:
(1) Some or all of the research appearing on the list and found by the reviewer(s) to involve no more than minimal risk,
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11.112
11.114
Cooperative research.
IRB records.
(a) An institution, or when appropriate an IRB, shall prepare and maintain adequate documentation of IRB
activities, including the following:
(1) Copies of all research proposals reviewed, scientific evaluations, if any,
that accompany the proposals, approved sample consent documents,
progress reports submitted by investigators, and reports of injuries to subjects.
(2) Minutes of IRB meetings which
shall be in sufficient detail to show attendance at the meetings; actions
taken by the IRB; the vote on these actions including the number of members
voting for, against, and abstaining; the
basis for requiring changes in or disapproving research; and a written summary of the discussion of controverted
issues and their resolution.
(3) Records of continuing review activities.
(4) Copies of all correspondence between the IRB and the investigators.
(5) A list of IRB members in the same
detail as described is 11.103(b)(3).
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11.116
pation, a description of the procedures
to be followed, and identification of
any procedures which are experimental;
(2) A description of any reasonably
foreseeable risks or discomforts to the
subject;
(3) A description of any benefits to
the subject or to others which may reasonably be expected from the research;
(4) A disclosure of appropriate alternative procedures or courses of treatment, if any, that might be advantageous to the subject;
(5) A statement describing the extent, if any, to which confidentiality of
records identifying the subject will be
maintained;
(6) For research involving more than
minimal risk, an explanation as to
whether any compensation and an explanation as to whether any medical
treatments are available if injury occurs and, if so, what they consist of, or
where further information may be obtained;
(7) An explanation of whom to contact for answers to pertinent questions
about the research and research subjects rights, and whom to contact in
the event of a research-related injury
to the subject; and
(8) A statement that participation is
voluntary, refusal to participate will
involve no penalty or loss of benefits to
which the subject is otherwise entitled,
and the subject may discontinue participation at any time without penalty
or loss of benefits to which the subject
is otherwise entitled.
(b) Additional elements of informed
consent. When appropriate, one or
more of the following elements of information shall also be provided to
each subject:
(1) A statement that the particular
treatment or procedure may involve
risks to the subject (or to the embryo
or fetus, if the subject is or may become pregnant) which are currently
unforeseeable;
(2) Anticipated circumstances under
which the subjects participation may
be terminated by the investigator
without regard to the subjects consent;
(3) Any additional costs to the subject that may result from participation
in the research;
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11.117
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11.123
11.119 Research undertaken without
the intention of involving human
subjects.
In the event research is undertaken
without the intention of involving
human subjects, but it is later proposed to involve human subjects in the
research, the research shall first be reviewed and approved by an IRB, as provided in this policy, a certification submitted, by the institution, to the department or agency, and final approval
given to the proposed change by the department or agency.
11.120 Evaluation and disposition of
applications and proposals for research to be conducted or supported by a Federal Department or
Agency.
The department or agency head will
evaluate all applications and proposals
involving human subjects submitted to
the department or agency through such
officers and employees of the department or agency and such experts and
consultants as the department or agency head determines to be appropriate.
This evaluation will take into consideration the risks to the subjects, the
adequacy of protection against these
risks, the potential benefits of the research to the subjects and others, and
the importance of the knowledge
gained or to be gained.
(b) On the basis of this evaluation,
the department or agency head may
approve or disapprove the application
or proposal, or enter into negotiations
to develop an approvable one.
11.121
[Reserved]
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11.124
Conditions.
PART 15PROTECTION OF
SENSITIVE SECURITY INFORMATION
Sec.
15.1 Scope.
15.3 Terms used in this part.
15.5 Sensitive security information.
15.7 Covered persons.
15.9 Restrictions on the disclosure of SSI.
15.11 Persons with a need to know.
15.13 Marking SSI.
15.15 SSI disclosed by DOT.
15.17 Consequences of unauthorized disclosure of SSI.
15.19 Destruction of SSI.
AUTHORITY: 49 U.S.C. 40119.
15.1 Scope.
(a) Applicability. This part governs
the maintenance, safeguarding, and
disclosure of records and information
that the Secretary of DOT has determined to be Sensitive Security Information, as defined in 15.5. This part
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15.5
whether during the conception, planning, design, construction, operation,
or decommissioning phase. A vulnerability assessment may include proposed,
recommended, or directed actions or
countermeasures to address security
concerns.
15.5
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15.5
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15.5
tating impact on transportation security, if the list is
(i) Prepared by DHS or DOT; or
(ii) Prepared by a State or local government agency and submitted by the
agency to DHS or DOT.
(13) Systems security information. Any
information involving the security of
operational or administrative data systems operated by the Federal government that have been identified by the
DOT or DHS as critical to aviation or
maritime transportation safety or security, including automated information security procedures and systems,
security inspections, and vulnerability
information concerning those systems.
(14) Confidential business information.
(i) Solicited or unsolicited proposals
received by DHS or DOT, and negotiations arising therefrom, to perform
work pursuant to a grant, contract, cooperative agreement, or other transaction, but only to the extent that the
subject matter of the proposal relates
to aviation or maritime transportation
security measures;
(ii) Trade secret information, including information required or requested
by regulation or Security Directive,
obtained by DHS or DOT in carrying
out aviation or maritime transportation security responsibilities; and
(iii) Commercial or financial information, including information required
or requested by regulation or Security
Directive, obtained by DHS or DOT in
carrying out aviation or maritime
transportation security responsibilities, but only if the source of the information does not customarily disclose it to the public.
(15) Research and development. Information obtained or developed in the
conduct of research related to aviation
or maritime transportation security
activities, where such research is approved,
accepted,
funded,
recommended, or directed by the DHS or
DOT, including research results.
(16) Other information. Any information not otherwise described in this
section that TSA determines is SSI
under 49 U.S.C. 114(s) or that the Secretary of DOT determines is SSI under
49 U.S.C. 40119. Upon the request of another Federal agency, the Secretary of
DOT may designate as SSI information
not otherwise described in this section.
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15.7
(c) Loss of SSI designation. The Secretary of DOT may determine in writing that information or records described in paragraph (b) of this section
do not constitute SSI because they no
longer meet the criteria set forth in
paragraph (a) of this section.
15.7
Covered persons.
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15.11
15.15
15.13
Marking SSI.
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15.17
record contains both SSI and information that is not SSI, DOT, on a proper
Freedom of Information Act or Privacy
Act request, may disclose the record
with the SSI redacted, provided the
record is not otherwise exempt from
disclosure under the Freedom of Information Act or Privacy Act.
(c) Disclosures to committees of Congress and the General Accounting Office.
Nothing in this part precludes DOT
from disclosing SSI to a committee of
Congress authorized to have the information or to the Comptroller General,
or to any authorized representative of
the Comptroller General.
(d) Disclosure in enforcement proceedings(1) In general. The Secretary
of DOT may provide SSI to a person in
the context of an administrative enforcement proceeding when, in the sole
discretion of the Secretary, access to
the SSI is necessary for the person to
prepare a response to allegations contained in a legal enforcement action
document issued by DOT.
(2) Security background check. Prior to
providing SSI to a person under paragraph (d)(1) of this section, the Secretary of DOT may require the individual or, in the case of an entity, the
individuals representing the entity,
and their counsel, to undergo and satisfy, in the judgment of the Secretary
of DOT, a security background check.
(e) Other conditional disclosure. The
Secretary of DOT may authorize a conditional disclosure of specific records
or information that constitute SSI
upon the written determination by the
Secretary that disclosure of such
records or information, subject to such
limitations and restrictions as the Secretary may prescribe, would not be detrimental to transportation safety.
(f) Obligation to protect information.
When an individual receives SSI pursuant to paragraph (d) or (e) of this section that individual becomes a covered
person under 15.7 and is subject to the
obligations of a covered person under
this part.
(g) No release under FOIA. When DOT
discloses SSI pursuant to paragraphs
(b) through (e) of this section, DOT
makes the disclosure for the sole purpose described in that paragraph. Such
disclosure is not a public release of in-
Destruction of SSI.
PART
17INTERGOVERNMENTAL
REVIEW OF DEPARTMENT OF
TRANSPORTATION
PROGRAMS
AND ACTIVITIES
Sec.
17.1 What is the purpose of these
tions?
17.2 What definitions apply to these
tions?
17.3 What programs and activities
Department are subject to these
tions?
17.4 [Reserved]
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regularegulaof the
regula-
17.6
(a) The regulations in this part implement Executive Order 12372, Intergovernmental Review of Federal Programs, issued July 14, 1982, and
amended on April 8, 1983. These regulations also implement applicable provisions of section 401 of the Intergovernmental Cooperation Act of 1968 and section 204 of the Demonstration Cities
and Metropolitan Development Act of
1966.
(b) These regulations are intended to
foster an intergovernmental partnership and a strengthened Federalism by
relying on state processes and on state,
areawide, regional and local coordination for review of proposed Federal financial assistance and direct Federal
development.
(c) These regulations are intended to
aid the internal management of the Department, and are not intended to create any right or benefit enforceable at
The Secretary publishes in the FEDREGISTER a list of the Departments programs and activities that
are subject to these regulations and
identifies which of these are subject to
the requirements of section 204 of the
Demonstration Cities and Metropolitan
Development Act.
ERAL
17.4
[Reserved]
17.5 What is the Secretarys obligation with respect to Federal interagency coordination?
The Secretary, to the extent practicable, consults with and seeks advice
from all other substantially affected
Federal departments and agencies in
an effort to assure full coordination between such agencies and the Department regarding programs and activities covered under these regulations.
17.6 What procedures apply to the selection of programs and activities
under these regulations?
(a) A state may select any program
or activity published in the FEDERAL
REGISTER in accordance with 17.3 of
this part for intergovernmental review
under these regulations. Each state,
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17.7
before selecting programs and activities shall consult with local elected officials.
(b) Each state that adopts a process
shall notify the Secretary of the Departments programs and activities selected for that process.
(c) A state may notify the Secretary
of changes in its selections at any
time. For each change, the state shall
submit to the Secretary an assurance
that the state has consulted with elected local elected officials regarding the
change. The Department may establish
deadlines by which states are required
to inform the Secretary of changes in
their program selections.
(d) The Secretary uses a states process as soon as feasible, depending on individual programs, and activities, after
the Secretary is notified of its selections.
17.7 How does the Secretary communicate with state and local officials
concerning the Departments programs and activities?
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17.12
17.11 What are the Secretarys obligations in interstate situations?
(a) The Secretary is responsible for:
(1) Identifying proposed federal financial assistance and direct federal development that have an impact on interstate areas;
(2) Notifying appropriate officials
and entities in states which have
adopted a process and which select the
Departments program or activity.
(3) Making efforts to identify and notify the affected state, areawide, regional, and local officials and entities
in those states that have not adopted a
process under the Order or do not select the Departments program or activity;
(4) Responding pursuant to 17.10 of
this part if the Secretary receives a
recommendation from a designated
areawide agency transmitted by a single point of contact, in cases in which
the review, coordination, and communication with the Department have
been delegated.
(b) The Secretary uses the procedures
in 17.10 if a state process provides a
state process recommendation to the
Department through a single point of
contact.
17.12 How may a state simplify, consolidate, or substitute federally required state plans?
(a) As used in this section:
(1) Simplify means that a state may
develop its own format, choose its own
submission date, and select the planning period for a state plan.
(2) Consolidate means that a state
may meet statutory and regulatory requirements by combining two or more
plans into one document and that the
state can select the format, submission
date, and planning period for the consolidated plan.
(3) Substitute means that a state may
use a plan or other document that it
has developed for its own purposes to
meet Federal requirements.
(b) If not inconsistent with law, a
state may decide to try to simplify,
consolidate, or substitute federally required state plans without prior approval by the Secretary.
(c) The Secretary reviews each state
plan that a state has simplified, consolidated, or substituted and accepts
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17.13
Closeout.
Later disallowances and adjustments.
Collection of amounts due.
Subpart AGeneral
This part establishes uniform administrative rules for Federal grants and
cooperative agreements and subawards
to State, local and Indian tribal governments.
Sec.
18.1
18.2
18.3
18.4
18.5
18.6
Subpart AGeneral
18.1
18.2
Scope of subpart.
Definitions.
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18.3
nancial Status Report (or other equivalent report); (2) for construction
grants, the SF271 Outlay Report and
Request for Reimbursement (or other
equivalent report).
Federally recognized Indian tribal government means the governing body or a
governmental agency of any Indian
tribe, band, nation, or other organized
group or community (including any
Native village as defined in section 3 of
the Alaska Native Claims Settlement
Act, 85 Stat 688) certified by the Secretary of the Interior as eligible for the
special programs and services provided
by him through the Bureau of Indian
Affairs.
Government means a State or local
government or a federally recognized
Indian tribal government.
Grant means an award of financial assistance, including cooperative agreements, in the form of money, or property in lieu of money, by the Federal
Government to an eligible grantee. The
term does not include technical assistance which provides services instead of
money, or other assistance in the form
of revenue sharing, loans, loan guarantees, interest subsidies, insurance, or
direct appropriations. Also, the term
does not include assistance, such as a
fellowship or other lump sum award,
which the grantee is not required to account for.
Grantee means the government to
which a grant is awarded and which is
accountable for the use of the funds
provided. The grantee is the entire
legal entity even if only a particular
component of the entity is designated
in the grant award document.
Local government means a county,
municipality, city, town, township,
local public authority (including any
public and Indian housing agency
under the United States Housing Act of
1937) school district, special district,
intrastate district, council of governments (whether or not incorporated as
a nonprofit corporation under state
law), any other regional or interstate
government entity, or any agency or
instrumentality of a local government.
Obligations means the amounts of orders placed, contracts and subgrants
awarded, goods and services received,
and similar transactions during a given
period that will require payment by
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18.4
Grant and part C of title V, Mental
Health Service for the Homeless Block
Grant).
(3) Entitlement grants to carry out
the following programs of the Social
Security Act:
(i) Aid to Needy Families with Dependent Children (title IV-A of the Act,
not including the Work Incentive Program (WIN) authorized by section
402(a)19(G); HHS grants for WIN are
subject to this part);
(ii) Child Support Enforcement and
Establishment of Paternity (title IV-D
of the Act);
(iii) Foster Care and Adoption Assistance (title IV-E of the Act);
(iv) Aid to the Aged, Blind, and Disabled (titles I, X, XIV, and XVI-AABD
of the Act); and
(v) Medical Assistance (Medicaid)
(title XIX of the Act) not including the
State Medicaid Fraud Control program
authorized by section 1903(a)(6)(B).
(4) Entitlement grants under the following programs of The National
School Lunch Act:
(i) School Lunch (section 4 of the
Act),
(ii) Commodity Assistance (section 6
of the Act),
(iii) Special Meal Assistance (section
11 of the Act),
(iv) Summer Food Service for Children (section 13 of the Act), and
(v) Child Care Food Program (section
17 of the Act).
(5) Entitlement grants under the following programs of The Child Nutrition Act of 1966:
(i) Special Milk (section 3 of the Act),
and
(ii) School Breakfast (section 4 of the
Act).
(6) Entitlement grants for State Administrative expenses under The Food
Stamp Act of 1977 (section 16 of the
Act).
(7) A grant for an experimental, pilot,
or demonstration project that is also
supported by a grant listed in paragraph (a)(3) of this section;
(8) Grant funds awarded under subsection 412(e) of the Immigration and
Nationality Act (8 U.S.C. 1522(e)) and
subsection 501(a) of the Refugee Education Assistance Act of 1980 (Pub. L.
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18.5
96422, 94 Stat. 1809), for cash assistance, medical assistance, and supplemental security income benefits to refugees and entrants and the administrative costs of providing the assistance
and benefits;
(9) Grants to local education agencies
under 20 U.S.C. 236 through 2411(a),
and 242 through 244 (portions of the Impact Aid program), except for 20 U.S.C.
238(d)(2)(c) and 240(f) (Entitlement Increase for Handicapped Children); and
(10) Payments under the Veterans
Administrations State Home Per Diem
Program (38 U.S.C. 641(a)).
(b) Entitlement programs. Entitlement
programs enumerated above in 18.4(a)
(3) through (8) are subject to subpart E.
18.5
All other grants administration provisions of codified program regulations, program manuals, handbooks
and other nonregulatory materials
which are inconsistent with this part
are superseded, except to the extent
they are required by statute, or authorized in accordance with the exception provision in 18.6.
18.6
Subpart BPre-Award
Requirements
18.10
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18.20
(2) Is not financially stable, or
(3) Has a management system which
does not meet the management standards set forth in this part, or
(4) Has not conformed to terms and
conditions of previous awards, or
(5) Is otherwise not responsible; and
if the awarding agency determines that
an award will be made, special conditions and/or restrictions shall correspond to the high risk condition and
shall be included in the award.
(b) Special conditions or restrictions
may include:
(1) Payment on a reimbursement
basis;
(2) Withholding authority to proceed
to the next phase until receipt of evidence of acceptable performance within
a given funding period;
(3) Requiring additional, more detailed financial reports;
(4) Additional project monitoring;
(5) Requiring the grante or subgrantee to obtain technical or management assistance; or
(6) Establishing additional prior approvals.
(c) If an awarding agency decides to
impose such conditions, the awarding
official will notify the grantee or subgrantee as early as possible, in writing,
of:
(1) The nature of the special conditions/restrictions;
(2) The reason(s) for imposing them;
(3) The corrective actions which must
be taken before they will be removed
and the time allowed for completing
the corrective actions; and
(4) The method of requesting reconsideration of the conditions/restrictions imposed.
Subpart CPost-Award
Requirements
FINANCIAL ADMINISTRATION
18.20 Standards for financial management systems.
(a) A State must expand and account
for grant funds in accordance with
State laws and procedures for expending and accounting for its own funds.
Fiscal control and accounting procedures of the State, as well as its subgrantees and cost-type contractors,
must be sufficient to
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18.21
(1) Permit preparation of reports required by this part and the statutes authorizing the grant, and
(2) Permit the tracing of funds to a
level of expenditures adequate to establish that such funds have not been
used in violation of the restrictions
and prohibitions of applicable statutes.
(b) The financial management systems of other grantees and subgrantees
must meet the following standards:
(1) Financial reporting. Accurate, current, and complete disclosure of the financial results of financially assisted
activities must be made in accordance
with the financial reporting requirements of the grant or subgrant.
(2) Accounting records. Grantees and
subgrantees must maintain records
which adequately identify the source
and application of funds provided for financially-assisted activities. These
records must contain information pertaining to grant or subgrant awards
and authorizations, obligations, unobligated balances, assets, liabilities, outlays or expenditures, and income.
(3) Internal control. Effective control
and accountability must be maintained
for all grant and subgrant cash, real
and personal property, and other assets. Grantees and subgrantees must
adequately safeguard all such property
and must assure that it is used solely
for authorized purposes.
(4) Budget control. Actual expenditures or outlays must be compared
with budgeted amounts for each grant
or subgrant. Financial information
must be related to performance or productivity data, including the development of unit cost information whenever appropriate or specifically required in the grant or subgrant agreement. If unit cost data are required, estimates based on available documentation will be accepted whenever possible.
(5) Allowable cost. Applicable OMB
cost principles, agency program regulations, and the terms of grant and
subgrant agreements will be followed
in determining the reasonableness, allowability, and allocability of costs.
(6) Source documentation. Accounting
records must be supported by such
source documentation as cancelled
checks, paid bills, payrolls, time and
attendance
records,
contract
and
subgrant award documents, etc.
(7) Cash management. Procedures for
minimizing the time elapsing between
the transfer of funds from the U.S.
Treasury and disbursement by grantees
and subgrantees must be followed
whenever advance payment procedures
are used. Grantees must establish reasonable procedures to ensure the receipt of reports on subgrantees cash
balances and cash disbursements in
sufficient time to enable them to prepare complete and accurate cash transactions reports to the awarding agency. When advances are made by letterof-credit or electronic transfer of funds
methods, the grantee must make
drawdowns as close as possible to the
time of making disbursements. Grantees must monitor cash drawdowns by
their subgrantees to assure that they
conform substantially to the same
standards of timing and amount as
apply to advances to the grantees.
(c) An awarding agency may review
the adequacy of the financial management system of any applicant for financial assistance as part of a
preaward review or at any time subsequent to award.
(d) Certain Urban Mass Transportation Administration (UMTA) grantees shall comply with the requirements
of section 15 of the Urban Mass Transportation (UMT) Act of 1964, as amended, as implemented by 49 CFR part 630,
regarding a uniform system of accounts and records and a uniform reporting system for certain grantees.
[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 1988]
18.21
Payment.
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18.21
come, rebates, refunds, contract settlements, audit recoveries and interest
earned on such funds before requesting
additional cash payments.
(g) Withholding payments. (1) Unless
otherwise required by Federal statute,
awarding agencies shall not withhold
payments for proper charges incurred
by grantees or subgrantees unless
(i) The grantee or subgrantee has
failed to comply with grant award conditions or
(ii) The grantee or subgrantee is indebted to the United States.
(2) Cash withheld for failure to comply with grant award condition, but
without suspension of the grant, shall
be released to the grantee upon subsequent compliance. When a grant is suspended, payment adjustments will be
made in accordance with 18.43(c).
(3) A Federal agency shall not make
payment to grantees for amounts that
are withheld by grantees or subgrantees from payment to contractors
to assure satisfactory completion of
work. Payments shall be made by the
Federal agency when the grantees or
subgrantees actually disburse the withheld funds to the contractors or to escrow accounts established to assure
satisfactory completion of work.
(h) Cash depositories. (1) Consistent
with the national goal of expanding the
opportunities for minority business enterprises, grantees and subgrantees are
encouraged to use minority banks (a
bank which is owned at least 50 percent
by minority group members). A list of
minority owned banks can be obtained
from the Minority Business Development Agency, Department of Commerce, Washington, DC 20230.
(2) A grantee or subgrantee shall
maintain a separate bank account only
when required by Federal-State agreement.
(i) Interest earned on advances. Except
for interest earned on advances of
funds exempt under the Intergovernmental Cooperation Act (31 U.S.C. 6501
et seq.) and the Indian Self-Determination Act (23 U.S.C. 450), grantees and
subgrantees shall promptly, but at
least quarterly, remit interest earned
on advances to the Federal agency. The
grantee or subgrantee may keep interest amounts up to $100 per year for administrative expenses.
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18.22
18.22
Allowable costs.
18.23
18.24
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18.24
same methods that the organization
uses to support the allocability of regular personnel costs.
(7) Special standards for third party inkind contributions. (i) Third party inkind contributions count towards satisfying a cost sharing or matching requirement only where, if the party receiving the contributions were to pay
for them, the payments would be allowable costs.
(ii) Some third party in-kind contributions are goods and services that,
if the grantee, subgrantee, or contractor receiving the contribution had
to pay for them, the payments would
have been an indirect costs. Costs sharing or matching credit for such contributions shall be given only if the
grantee, subgrantee, or contractor has
established, along with its regular indirect cost rate, a special rate for allocating to individual projects or programs the value of the contributions.
(iii) A third party in-kind contribution to a fixed-price contract may
count towards satisfying a cost sharing
or matching requirement only if it results in:
(A) An increase in the services or
property provided under the contract
(without additional cost to the grantee
or subgrantee) or
(B) A cost savings to the grantee or
subgrantee.
(iv) The values placed on third party
in-kind contributions for cost sharing
or matching purposes will conform to
the rules in the succeeding sections of
this part. If a third party in-kind contribution is a type not treated in those
sections, the value placed upon it shall
be fair and reasonable.
(8) 23 U.S.C. 121(a) permits reimbursement for actual construction cost incurred by States for highway construction projects. Except for private donations of right-of-way, contributions
and donations shall not be considered
State costs, and shall not be allowable
for matching purposes for highway construction contracts. 23 U.S.C. 323 permits private donations of right-of-way
to be used for a States matching
share, and establishes procedures for
determining the fair market value of
such donated right-of-way.
(9) Section 4(a) of the UMT Act of
1964, as amended, provides that the
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18.24
Federal grant for any project to be assisted under section 3 of the UMT Act
of 1964, as amended, shall be in an
amount equal to 75 percent of the net
project costs. Net project cost is defined as that portion of the cost of the
project which cannot be reasonably financed from revenues.
(10) Section 18(e) of the UMT Act of
1964, as amended, limits the Federal
share to 80 percent of the net cost of
construction, as determined by the
Secretary of Transportation. The Federal share for the payment of subsidies
for operating expenses, as defined by
the Secretary, shall not exceed 50 percent of the net cost of such operating
expense projects.
(c) Valuation of donated services(1)
Volunteer services. Unpaid services provided to a grantee or subgrantee by individuals will be valued at rates consistent with those ordinarily paid for
similar work in the grantees or subgrantees organization. If the grantee
or subgrantee does not have employees
performing similar work, the rates will
be consistent with those ordinarily
paid by other employers for similar
work in the same labor market. In either case, a reasonable amount for
fringe benefits may be included in the
valuation.
(2) Employees of other organizations.
When an employer other than a grantee, subgrantee, or cost-type contractor
furnishes free of charge the services of
an employee in the employees normal
line of work, the services will be valued
at the employees regular rate of pay
exclusive of the employees fringe benefits and overhead costs. If the services
are in a different line of work, paragraph (c)(1) of this section applies.
(3) Section 5(g) of the Department of
Transportation Act (49 U.S.C. 1654(g))
limits in-kind service contributions
under the local Rail Service Assistance
Program to the cash equivalent of
State salaries for State public employees working in the State rail assistance
program, but not including overhead
and general administrative costs.
(d) Valuation of third party donated
supplies and loaned equipment or space.
(1) If a third party donates supplies,
the contribution will be valued at the
market value of the supplies at the
time of donation.
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[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8086, Mar. 11, 1988]
18.25
(c) Cost of generating program income.
If authorized by Federal regulations or
the grant agreement, costs incident to
the generation of program income may
be deducted from gross income to determine program income.
(d) Governmental revenues. Taxes, special assessments, levies, fines, and
other such revenues raised by a grantee
or subgrantee are not program income
unless the revenues are specifically
identified in the grant agreement or
Federal agency regulations as program
income.
(e) Royalties. Income from royalties
and license fees for copyrighted material, patents, and inventions developed
by a grantee or subgrantee is program
income only if the revenues are specifically identified in the grant agreement
or Federal agency regulations as program income. (See 18.34.)
(f) Property. Proceeds from the sale of
real property or equipment will be handled in accordance with the requirements of 18.31 and 18.32.
(g) Use of program income. Program
income shall be deducted from outlays
which may be both Federal and nonFederal as described below, unless the
Federal agency regulations or the
grant agreement specify another alternative (or a combination of the alternatives). In specifying alternatives, the
Federal agency may distinguish between income earned by the grantee
and income earned by subgrantees and
between the sources, kinds, or amounts
of income. When Federal agencies authorize the alternatives in paragraphs
(g) (2) and (3) of this section, program
income in excess of any limits stipulated shall also be deducted from outlays.
(1) Deduction. Ordinarily program income shall be deducted from total allowable costs to determine the net allowable costs. Program income shall be
used for current costs unless the Federal agency authorizes otherwise. Program income which the grantee did not
anticipate at the time of the award
shall be used to reduce the Federal
agency and grantee contributions rather than to increase the funds committed to the project.
(2) Addition. When authorized, program income may be added to the
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18.26
funds committed to the grant agreement by the Federal agency and the
grantee. The program income shall be
used for the purposes and under the
conditions of the grant agreement.
(3) Cost sharing or matching. When authorized, program income may be used
to meet the cost sharing or matching
requirement of the grant agreement.
The amount of the Federal grant award
remains the same.
(4) Section 3(a)(1)(D) of the UMT Act
of 1964, as amended, provides that the
Secretary shall establish requirements
for the use of income derived from appreciated land values for certain UMTA
grants. Specific requirements shall be
contained in grant agreements.
(5) UMTA grantees may retain program income for allowable capital or
operating expenses.
(6) For grants awarded under section
9 of the UMT Act of 1964, as amended,
any revenues received from the sale of
advertising and concessions in excess
of fiscal year 1985 levels shall be excluded from program income.
(7) 23 U.S.C. 156 requires that States
shall charge fair market value for the
sale, lease, or use of right-of-way airspace for non-transportation purposes
and that such income shall be used for
projects eligible under 23 U.S.C.
(h) Income after the award period.
There are no Federal requirements governing the disposition of program income earned after the end of the award
period (i.e., until the ending date of the
final financial report, see paragraph (a)
of this section), unless the terms of the
agreement or the Federal agency regulations provide otherwise.
[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 1988]
18.26
Non-Federal audits.
(a) Basic rule. Grantees and subgrantees are responsible for obtaining
audits in accordance with the Single
Audit Act Amendments of 1996 (31
U.S.C. 75017507) and revised OMB Circular A133, Audits of States, Local
Governments, and Non-Profit Organizations. The audits shall be made by
an independent auditor in accordance
with generally accepted government
auditing standards covering financial
audits.
(b) Subgrantees. State or local governments, as those terms are defined for
purposes of the Single Audit Act
Amendments of 1996, that provide Federal awards to a subgrantee, which expends $300,000 or more (or other
amount as specified by OMB) in Federal awards in a fiscal year, shall:
(1) Determine whether State or local
subgrantees have met the audit requirements of the Act and whether subgrantees covered by OMB Circular A
110, Uniform Administrative Requirements for Grants and Agreements with
Institutions of Higher Education, Hospitals, and Other Non-Profit Organizations, have met the audit requirements of the Act. Commercial contractors (private for-profit and private and
governmental organizations) providing
goods and services to State and local
governments are not required to have a
single audit performed. State and local
governments should use their own procedures to ensure that the contractor
has complied with laws and regulations
affecting the expenditure of Federal
funds;
(2) Determine whether the subgrantee spent Federal assistance funds
provided in accordance with applicable
laws and regulations. This may be accomplished by reviewing an audit of
the subgrantee made in accordance
with the Act, Circular A110, or
through other means (e.g., program reviews) if the subgrantee has not had
such an audit;
(3) Ensure that appropriate corrective action is taken within six months
after receipt of the audit report in instance of noncompliance with Federal
laws and regulations;
(4) Consider whether subgrantee audits necessitate adjustment of the
grantees own records; and
(5) Require each subgrantee to permit
independent auditors to have access to
the records and financial statements.
(c) Auditor selection. In arranging for
audit services, 18.36 shall be followed.
[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 61 FR 21387, May 10, 1996; 62 FR 45939,
45947, Aug. 29, 1997]
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18.30
Changes.
18.30
construction to construction or vice
versa.
(d) Programmatic changes. Grantees or
subgrantees must obtain the prior approval of the awarding agency whenever any of the following actions is anticipated:
(1) Any revision of the scope or objectives of the project (regardless of
whether there is an associated budget
revision requiring prior approval).
(2) Need to extend the period of availability of funds.
(3) Changes in key persons in cases
where specified in an application or a
grant award. In research projects, a
change in the project director or principal investigator shall always require
approval unless waived by the awarding agency.
(4) Under nonconstruction projects,
contracting out, subgranting (if authorized by law) or otherwise obtaining
the services of a third party to perform
activities which are central to the purposes of the award. This approval requirement is in addition to the approval requirements of 18.36 but does
not apply to the procurement of equipment, supplies, and general support
services.
(e) Additional prior approval requirements. The awarding agency may not
require prior approval for any budget
revision which is not described in paragraph (c) of this section.
(f) Requesting prior approval. (1) A request for prior approval of any budget
revision will be in the same budget formal the grantee used in its application
and shall be accompanied by a narrative justification for the proposed revision.
(2) A request for a prior approval
under the applicable Federal cost principles (see 18.22) may be made by letter.
(3) A request by a subgrantee for
prior approval will be addressed in
writing to the grantee. The grantee
will promptly review such request and
shall approve or disapprove the request
in writing. A grantee will not approve
any budget or project revision which is
inconsistent with the purpose or terms
and conditions of the Federal grant to
the grantee. If the revision, requested
by the subgrantee would result in a
change to the grantees approved
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18.31
18.31
Real property.
18.32
Equipment.
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18.32
disposition of the equipment will be
made as follows:
(1) Items of equipment with a current
per-unit fair market value of less than
$5,000 may be retained, sold or otherwise disposed of with no further obligation to the awarding agency.
(2) Items of equipment with a current
per unit fair market value in excess of
$5,000 may be retained or sold and the
awarding agency shall have a right to
an amount calculated by multiplying
the current market value or proceeds
from sale by the awarding agencys
share of the equipment.
(3) In cases where a grantee or subgrantee fails to take appropriate disposition actions, the awarding agency
may direct the grantee or subgrantee
to take excess and disposition actions.
(f) Federal equipment. In the event a
grantee or subgrantee is provided federally-owned equipment:
(1) Title will remain vested in the
Federal Government.
(2) Grantees or subgrantees will manage the equipment in accordance with
Federal agency rules and procedures,
and submit an annual inventory listing.
(3) When the equipment is no longer
needed, the grantee or subgrantee will
request disposition instructions from
the Federal agency.
(g) Right to transfer title. The Federal
awarding agency may reserve the right
to transfer title to the Federal Government or a third part named by the
awarding agency when such a third
party is otherwise eligible under existing statutes. Such transfers shall be
subject to the following standards:
(1) The property shall be identified in
the grant or otherwise made known to
the grantee in writing.
(2) The Federal awarding agency
shall issue disposition instruction
within 120 calendar days after the end
of the Federal support of the project
for which it was acquired. If the Federal awarding agency fails to issue disposition instructions within the 120
calendar-day period the grantee shall
follow 18.32(e).
(3) When title to equipment is transferred, the grantee shall be paid an
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18.33
amount calculated by applying the percentage of participation in the purchase to the current fair market value
of the property.
18.33 Supplies.
(a) Title. Title to supplies acquired
under a grant or subgrant will vest,
upon acquisition, in the grantee or subgrantee respectively.
(b) Disposition. If there is a residual
inventory of unused supplies exceeding
$5,000 in total aggregate fair market
value upon termination or completion
of the award, and if the supplies are
not needed for any other federally
sponsored programs or projects, the
grantee or subgrantee shall compensate the awarding agency for its
share.
18.34 Copyrights.
The Federal awarding agency reserves a royalty-free, nonexclusive, and
irrevocable license to reproduce, publish or otherwise use, and to authorize
others to use, for Federal Government
purposes:
(a) The copyright in any work developed under a grant, subgrant, or contract under a grant or subgrant; and
(b) Any rights of copyright to which
a grantee, subgrantee or a contractor
purchases ownership with grant support.
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18.36
(ii) If the contract includes a ceiling
price that the contractor exceeds at its
own risk.
(11) Grantees and subgrantees alone
will be responsible, in accordance with
good administrative practice and sound
business judgment, for the settlement
of all contractual and administrative
issues arising out of procurements.
These issues include, but are not limited to source evaluation, protests, disputes, and claims. These standards do
not relieve the grantee or subgrantee
of any contractual responsibilities
under its contracts. Federal agencies
will not substitute their judgment for
that of the grantee or subgrantee unless the matter is primarily a Federal
concern. Violations of law will be referred to the local, State, or Federal
authority having proper jurisdiction.
(12) Grantees and subgrantees will
have protest procedures to handle and
resolve disputes relating to their procurements and shall in all instances
disclose information regarding the protest to the awarding agency. A
protestor must exhaust all administrative remedies with the grantee and subgrantee before pursuing a protest with
the Federal agency. Reviews of protests by the Federal agency will be limited to:
(i) Violations of Federal law or regulations and the standards of this section (violations of State or local law
will be under the jurisdiction of State
or local authorities) and
(ii) Violations of the grantees or subgrantees protest procedures for failure
to review a complaint or protest. Protests received by the Federal agency
other than those specified above will be
referred to the grantee or subgrantee.
(c) Competition. (1) All procurement
transactions will be conducted in a
manner providing full and open competition consistent with the standards
of 18.36. Some of the situations considered to be restrictive of competition
include but are not limited to:
(i) Placing unreasonable requirements on firms in order for them to
qualify to do business,
(ii) Requiring unnecessary experience
and excessive bonding,
(iii) Noncompetitive pricing practices
between firms or between affiliated
companies,
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18.36
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18.36
factor, can only be used in procurement of A/E professional services. It
cannot be used to purchase other types
of services though A/E firms are a potential source to perform the proposed
effort.
(4) Procurement by noncompetitive
proposals is procurement through solicitation of a proposal from only one
source, or after solicitation of a number of sources, competition is determined inadequate.
(i) Procurement by noncompetitive
proposals may be used only when the
award of a contract is infeasible under
small purchase procedures, sealed bids
or competitive proposals and one of the
following circumstances applies:
(A) The item is available only from a
single source;
(B) The public exigency or emergency
for the requirement will not permit a
delay resulting from competitive solicitation;
(C) The awarding agency authorizes
noncompetitive proposals; or
(D) After solicitation of a number of
sources, competition is determined inadequate.
(ii) Cost analysis, i.e., verifying the
proposed cost data, the projections of
the data, and the evaluation of the specific elements of costs and profits, is
required.
(iii) Grantees and subgrantees may
be required to submit the proposed procurement to the awarding agency for
pre-award review in accordance with
paragraph (g) of this section.
(e) Contracting with small and minority
firms, womens business enterprise and
labor surplus area firms. (1) The grantee
and subgrantee will take all necessary
affirmative steps to assure that minority firms, womens business enterprises, and labor surplus area firms are
used when possible.
(2) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and womens business
enterprises on solicitation lists;
(ii) Assuring that small and minority
businesses, and womens business enterprises are solicited whenever they
are potential sources;
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18.36
ance that the bidder will, upon acceptance of his bid, execute such contractual documents as may be required
within the time specified.
(2) A performance bond on the part of
the contractor for 100 percent of the contract price. A performance bond is
one executed in connection with a contract to secure fulfillment of all the
contractors obligations under such
contract.
(3) A payment bond on the part of the
contractor for 100 percent of the contract
price. A payment bond is one executed in connection with a contract to
assure payment as required by law of
all persons supplying labor and material in the execution of the work provided for in the contract.
(i) Contract provisions. A grantees
and subgrantees contracts must contain provisions in paragraph (i) of this
section. Federal agencies are permitted
to require changes, remedies, changed
conditions, access and records retention, suspension of work, and other
clauses approved by the Office of Federal Procurement Policy.
(1) Administrative, contractual, or
legal remedies in instances where contractors violate or breach contract
terms, and provide for such sanctions
and penalties as may be appropriate.
(Contracts more than the simplified acquisition threshold)
(2) Termination for cause and for
convenience by the grantee or subgrantee including the manner by which
it will be effected and the basis for settlement. (All contracts in excess of
$10,000)
(3) Compliance with Executive Order
11246 of September 24, 1965, entitled
Equal Employment Opportunity, as
amended by Executive Order 11375 of
October 13, 1967, and as supplemented
in Department of Labor regulations (41
CFR chapter 60). (All construction contracts awarded in excess of $10,000 by
grantees and their contractors or subgrantees)
(4) Compliance with the Copeland
Anti-Kickback Act (18 U.S.C. 874) as
supplemented in Department of Labor
regulations (29 CFR part 3). (All contracts and subgrants for construction
or repair)
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18.36
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18.40
[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 1988; 60 FR 19639,
19647, Apr. 19, 1995]
18.37 Subgrants.
(a) States. States shall follow state
law and procedures when awarding and
administering subgrants (whether on a
cost reimbursement or fixed amount
basis) of financial assistance to local
and Indian tribal governments. States
shall:
(1) Ensure that every subgrant includes any clauses required by Federal
statute and executive orders and their
implementing regulations;
(2) Ensure that subgrantees are
aware of requirements imposed upon
them by Federal statute and regulation;
(3) Ensure that a provision for compliance with 18.42 is placed in every
cost reimbursement subgrant; and
(4) Conform any advances of grant
funds to subgrantees substantially to
the same standards of timing and
amount that apply to cash advances by
Federal agencies.
(b) All other grantees. All other grantees shall follow the provisions of this
part which are applicable to awarding
agencies when awarding and administering subgrants (whether on a cost
reimbursement or fixed amount basis)
of financial assistance to local and Indian tribal governments. Grantees
shall:
(1) Ensure that every subgrant includes a provision for compliance with
this part;
(2) Ensure that every subgrant includes any clauses required by Federal
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18.41
grantee, the Federal agency may extend the due date for any performance
report. Additionally, requirements for
unnecessary performance reports may
be waived by the Federal agency.
(2) Performance reports will contain,
for each grant, brief information on the
following:
(i) A comparison of actual accomplishments to the objectives established for the period. Where the output
of the project can be quantified, a computation of the cost per unit of output
may be required if that information
will be useful.
(ii) The reasons for slippage if established objectives were not met.
(iii) Additional pertinent information
including, when appropriate, analysis
and explanation of cost overruns or
high unit costs.
(3) Grantees will not be required to
submit more than the original and two
copies of performance reports.
(4) Grantees will adhere to the standards in this section in prescribing performance reporting requirements for
subgrantees.
(c) Construction performance reports.
For the most part, on-site technical inspections and certified percentage-ofcompletion data are relied on heavily
by Federal agencies to monitor
progress under construction grants and
subgrants. The Federal agency will require additional formal performance
reports only when considered necessary, and never more frequently than
quarterly.
(1) Section 12(h) of the UMT Act of
1964, as amended, requires pre-award
testing of new buses models.
(2) [Reserved]
(d) Significant developments. Events
may occur between the scheduled performance reporting dates which have
significant impact upon the grant or
subgrant supported activity. In such
cases, the grantee must inform the
Federal agency as soon as the following
types of conditions become known:
(1) Problems, delays, or adverse conditions which will materially impair
the ability to meet the objective of the
award. This disclosure must include a
statement of the action taken, or contemplated, and any assistance needed
to resolve the situation.
(2) Favorable developments which enable meeting time schedules and objectives sooner or at less cost than anticipated or producing more beneficial results than originally planned.
(e) Federal agencies may make site
visits as warranted by program needs.
(f) Waivers, extensions. (1) Federal
agencies may waive any performance
report required by this part if not needed.
(2) The grantee may waive any performance report from a subgrantee
when not needed. The grantee may extend the due date for any performance
report from a subgrantee if the grantee
will still be able to meet its performance reporting obligations to the Federal agency.
[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 1988]
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18.41
of the award exempt the grantee from
this requirement.
(ii) These reports will be used by the
Federal agency to monitor cash advanced to grantees and to obtain disbursement or outlay information for
each grant from grantees. The format
of the report may be adapted as appropriate when reporting is to be accomplished with the assistance of automatic data processing equipment provided that the information to be submitted is not changed in substance.
(2) Forecasts of Federal cash requirements. Forecasts of Federal cash requirements may be required in the
Remarks section of the report.
(3) Cash in hands of subgrantees. When
considered necessary and feasible by
the Federal agency, grantees may be
required to report the amount of cash
advances in excess of three days needs
in the hands of their subgrantees or
contractors and to provide short narrative explanations of actions taken by
the grantee to reduce the excess balances.
(4) Frequency and due date. Grantees
must submit the report no later than 15
working days following the end of each
quarter. However, where an advance either by letter of credit or electronic
transfer of funds is authorized at an
annualized rate of one million dollars
or more, the Federal agency may require the report to be submitted within
15 working days following the end of
each month.
(d) Request for advance or reimbursement(1) Advance payments. Requests
for Treasury check advance payments
will be submitted on Standard Form
270, Request for Advance or Reimbursement. (This form will not be used for
drawdowns under a letter of credit,
electronic funds transfer or when
Treasury check advance payments are
made to the grantee automatically on
a predetermined basis.)
(2) Reimbursements. Requests for reimbursement
under
nonconstruction
grants will also be submitted on Standard Form 270. (For reimbursement requests under construction grants, see
paragraph (e)(1) of this section.)
(3) The frequency for submitting payment requests is treated in 18.41(b)(3).
(e) Outlay report and request for reimbursement for construction programs(1)
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18.42
[53 FR 8086 and 8087, Mar. 11, 1988, as amended at 53 FR 8087, Mar. 11, 1988]
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18.43
documents, papers, or other records of
grantees and subgrantees which are
pertinent to the grant, in order to
make audits, examinations, excerpts,
and transcripts.
(2) Expiration of right of access. The
right of access in this section must not
be limited to the required retention period but shall last as long as the
records are retained.
(f) Restrictions on public access. The
Federal Freedom of Information Act (5
U.S.C. 552) does not apply to records
unless required by Federal, State, or
local law, grantees and subgrantees are
not required to permit public access to
their records.
18.43 Enforcement.
(a) Remedies for noncompliance. If a
grantee or subgrantee materially fails
to comply with any term of an award,
whether stated in a Federal statute or
regulation, an assurance, in a State
plan or application, a notice of award,
or elsewhere, the awarding agency may
take one or more of the following actions, as appropriate in the circumstances:
(1) Temporarily withhold cash payments pending correction of the deficiency by the grantee or subgrantee or
more severe enforcement action by the
awarding agency,
(2) Disallow (that is, deny both use of
funds and matching credit for) all or
part of the cost of the activity or action not in compliance,
(3) Wholly or partly suspend or terminate the current award for the
grantees or subgrantees program,
(4) Withhold further awards for the
program, or
(5) Take other remedies that may be
legally available.
(b) Hearings, appeals. In taking an enforcement action, the awarding agency
will provide the grantee or subgrantee
an opportunity for such hearing, appeal, or other administrative proceeding to which the grantee or subgrantee is entitled under any statute
or regulation applicable to the action
involved.
(c) Effects of suspension and termination. Costs of grantee or subgrantee
resulting from obligations incurred by
the grantee or subgrantee during a suspension or after termination of an
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18.44
Subpart DAfter-The-Grant
Requirements
18.44
18.50
Closeout.
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Subpart EEntitlements
[Reserved]
PART 19UNIFORM ADMINISTRATIVE REQUIREMENTS FOR GRANTS
AND AGREEMENTS WITH INSTITUTIONS OF HIGHER EDUCATION,
HOSPITALS, AND OTHER NONPROFIT ORGANIZATIONS
Subpart AGeneral
Sec.
19.1 Purpose.
19.2 Definitions.
19.3 Effect on other issuances.
19.4 Deviations.
19.5 Subawards.
19.6 Availability of material referenced in
this part.
Pt. 19
Purpose.
Pre-award policies.
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and
con-
19.1
Subpart AGeneral
19.1
Purpose.
19.2
Definitions.
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19.2
patent applications and such property
as loans, notes and other debt instruments, lease agreements, stock and
other instruments of property ownership, whether considered tangible or intangible.
(t) Obligations means the amounts of
orders placed, contracts and grants
awarded, services received and similar
transactions during a given period that
require payment by the recipient during the same or a future period.
(u) Outlays or expenditures means
charges made to the project or program. They may be reported on a cash
or accrual basis. For reports prepared
on a cash basis, outlays are the sum of
cash disbursements for direct charges
for goods and services, the amount of
indirect expense charged, the value of
third party in-kind contributions applied and the amount of cash advances
and payments made to subrecipients.
For reports prepared on an accrual
basis, outlays are the sum of cash disbursements for direct charges for goods
and services, the amount of indirect expense incurred, the value of in-kind
contributions applied, and the net increase (or decrease) in the amounts
owed by the recipient for goods and
other property received, for services
performed by employees, contractors,
subrecipients and other payees and
other amounts becoming owed under
programs for which no current services
or performance are required.
(v) Personal property means property
of any kind except real property. It
may be tangible, having physical existence, or intangible, having no physical
existence, such as copyrights, patents,
or securities.
(w) Prior approval means written approval by an authorized official evidencing prior consent.
(x) Program income means gross income earned by the recipient that is directly generated by a supported activity or earned as a result of the award
(see exclusions in 19.24 (e) and (h)).
Program income includes, but is not
limited to, income from fees for services performed, the use or rental of real
or personal property acquired under
federally-funded projects, the sale of
commodities or items fabricated under
an award, license fees and royalties on
patents and copyrights, and interest on
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19.2
that are supported at universities, colleges, and other non-profit institutions. Research is defined as a systematic study directed toward fuller
scientific knowledge or understanding
of the subject studied. Development
is the systematic use of knowledge and
understanding gained from research directed toward the production of useful
materials, devices, systems, or methods, including design and development
of prototypes and processes. The term
research also includes activities involving the training of individuals in
research techniques where such activities utilize the same facilities as other
research and development activities
and where such activities are not included in the instruction function.
(ee) Small awards means a grant or
cooperative agreement not exceeding
the small purchase threshold fixed at
41 U.S.C. 403(11) (currently $25,000).
(ff) Subaward means an award of financial assistance in the form of
money, or property in lieu of money,
made under an award by a recipient to
an eligible subrecipient or by a subrecipient to a lower tier subrecipient.
The term includes financial assistance
when provided by any legal agreement,
even if the agreement is called a contract, but does not include procurement of goods and services nor does it
include any form of assistance which is
excluded from the definition of
award in paragraph (e) of this section.
(gg) Subrecipient means the legal entity to which a subaward is made and
which is accountable to the recipient
for the use of the funds provided. The
term may include foreign or international organizations (such as agencies of the United Nations) at the discretion of the Federal awarding agency.
(hh) Supplies means all personal property excluding equipment, intangible
property, and debt instruments as defined in this section, and inventions of
a contractor conceived or first actually
reduced to practice in the performance
of work under a funding agreement
(subject inventions), as defined in 37
CFR part 401, Rights to Inventions
Made by Nonprofit Organizations and
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19.6
fied program regulations, program
manuals, handbooks and other non-regulatory materials which are inconsistent with the requirements of this
part are superseded, except to the extent they are required by statute, or
authorized in accordance with the deviations provision in 19.4.
19.4 Deviations.
The Office of Management and Budget (OMB) may grant exceptions for
classes of grants or recipients subject
to the requirements of this part when
exceptions are not prohibited by statute. However, in the interest of maximum uniformity, exceptions from the
requirements of this part shall be permitted only in unusual circumstances.
Federal awarding agencies may apply
more restrictive requirements to a
class of recipients when approved by
OMB. All requests for class deviations
shall be processed through the Assistant Secretary for Administration. Federal awarding agencies may apply less
restrictive requirements when awarding small awards, except for those requirements which are statutory, subject to the concurrence of the Assistant Secretary for Administration. Exceptions on a case-by-case basis may
also be made by Federal awarding
agencies, with the concurrence of the
Assistant Secretary for Administration
to ensure conformance with Department of Transportation grant administration policies.
19.5 Subawards.
Unless sections of this part specifically exclude subrecipients from coverage, the provisions of this part shall
be applied to subrecipients performing
work under awards if such subrecipients are institutions of higher education, hospitals or other non-profit organizations. State and local government subrecipients are subject to the
provisions of 49 CFR part 18, Uniform
Administrative
Requirements
for
Grants and Cooperative Agreements to
State and Local Governments.
19.6 Availability of material referenced in this part.
(a) Copies of Federal Transit Administration (FTA) documents identified
in this part may be obtained by calling
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19.10
Subpart BPre-Award
Requirements
19.10 Purpose.
Sections 19.11 through 19.17 prescribes forms and instructions and
other pre-award matters to be used in
applying for Federal awards.
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19.21
ingly, State and local institutions of
higher education, hospitals, and nonprofit organizations that receive direct
Federal awards or other Federal funds
shall give preference in their procurement programs funded with Federal
funds to the purchase of recycled products pursuant to the EPA guidelines.
19.17 Certifications and representations.
Unless prohibited by statute or codified regulation, each Federal awarding
agency is authorized and encouraged to
allow recipients to submit certifications and representations required
by statute, executive order, or regulation on an annual basis, if the recipients have ongoing and continuing relationships with the agency. Annual certifications and representations shall be
signed by responsible officials with the
authority to ensure recipients compliance with the pertinent requirements.
Subpart CPost-Award
Requirements
FINANCIAL AND PROGRAM MANAGEMENT
19.20 Purpose of financial and program management.
Sections 19.21 through 19.28 prescribe
standards for financial management
systems, methods for making payments and rules for: satisfying cost
sharing and matching requirements,
accounting for program income, budget
revision approvals, making audits, determining allowability of cost, and establishing fund availability.
19.21 Standards for financial management systems.
(a) Federal awarding agencies shall
require recipients to relate financial
data to performance data and develop
unit cost information whenever practical.
(b) Recipients financial management
systems shall provide for the following.
(1) Accurate, current and complete
disclosure of the financial results of
each federally-sponsored project or
program in accordance with the reporting requirements set forth in 19.52. If
a Federal awarding agency requires reporting on an accrual basis from a recipient that maintains its records on
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19.22
other than an accrual basis, the recipient shall not be required to establish
an accrual accounting system. These
recipients may develop such accrual
data for its reports on the basis of an
analysis of the documentation on hand.
(2) Records that identify adequately
the source and application of funds for
federally-sponsored activities. These
records shall contain information pertaining to Federal awards, authorizations, obligations, unobligated balances, assets, outlays, income and interest.
(3) Effective control over and accountability for all funds, property and
other assets. Recipients shall adequately safeguard all such assets and
assure they are used solely for authorized purposes.
(4) Comparison of outlays with budget amounts for each award. Whenever
appropriate,
financial
information
should be related to performance and
unit cost data.
(5) Written procedures to minimize
the time elapsing between the transfer
of funds to the recipient from the U.S.
Treasury and the issuance or redemption of checks, warrants or payments
by other means for program purposes
by the recipient. To the extent that the
provisions of the Cash Management Improvement Act (CMIA) (Pub. L. 101453)
govern, payment methods of State
agencies, instrumentalities, and fiscal
agents shall be consistent with CMIA
Treasury-State Agreements or the
CMIA default procedures codified at 31
CFR part 205, Withdrawal of Cash
from the Treasury for Advances under
Federal Grant and Other Programs.
(6) Written procedures for determining the reasonableness, allocability
and allowability of costs in accordance
with the provisions of the applicable
Federal cost principles and the terms
and conditions of the award.
(7) Accounting records including cost
accounting records that are supported
by source documentation.
(c) Where the Federal Government
guarantees or insures the repayment of
money borrowed by the recipient, the
Federal awarding agency, at its discretion, may require adequate bonding
and insurance if the bonding and insurance requirements of the recipient are
Payment.
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19.22
for recipients unwilling or unable to
provide timely advances to their subrecipient to meet the subrecipients actual cash disbursements.
(g) To the extent available, recipients shall disburse funds available from
repayments to and interest earned on a
revolving fund, program income, rebates, refunds, contract settlements,
audit recoveries and interest earned on
such funds before requesting additional
cash payments.
(h) Unless otherwise required by statute, Federal awarding agencies shall
not withhold payments for proper
charges made by recipients at any time
during the project period unless the
conditions in paragraphs (h)(1) or (2) of
this section apply.
(1) A recipient has failed to comply
with the project objectives, the terms
and conditions of the award, or Federal
reporting requirements.
(2) The recipient or subrecipient is
delinquent in a debt to the United
States as defined in OMB Circular A
129, Managing Federal Credit Programs. Under such conditions, the
Federal awarding agency may, upon
reasonable notice, inform the recipient
that payments shall not be made for
obligations incurred after a specified
date until the conditions are corrected
or the indebtedness to the Federal Government is liquidated.
(i) Standards governing the use of
banks and other institutions as depositories of funds advanced under awards
are as follows.
(1) Except for situations described in
paragraph (i)(2) of this section, Federal
awarding agencies shall not require
separate depository accounts for funds
provided to a recipient or establish any
eligibility requirements for depositories for funds provided to a recipient.
However, recipients must be able to account for the receipt, obligation and
expenditure of funds.
(2) Advances of Federal funds shall be
deposited and maintained in insured
accounts whenever possible.
(j) Consistent with the national goal
of expanding the opportunities for
women-owned
and
minority-owned
business enterprises, recipients shall be
encouraged to use women-owned and
minority-owned banks (a bank which is
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19.23
may be claimed as cost sharing or
matching.
(2) If the purpose of the award is to
support activities that require the use
of equipment, buildings or land, normally only depreciation or use charges
for equipment and buildings may be
made. However, the full value of equipment or other capital assets and fair
rental charges for land may be allowed,
provided that the Federal awarding
agency has approved the charges.
(h) The value of donated property
shall be determined in accordance with
the usual accounting policies of the recipient, with the following qualifications.
(1) The value of donated land and
buildings shall not exceed its fair market value at the time of donation to
the recipient as established by an independent appraiser (e.g., certified real
property appraiser or General Services
Administration representative) and
certified by a responsible official of the
recipient.
(2) The value of donated equipment
shall not exceed the fair market value
of equipment of the same age and condition at the time of donation.
(3) The value of donated space shall
not exceed the fair rental value of comparable space as established by an independent appraisal of comparable space
and facilities in a privately-owned
building in the same locality.
(4) The value of loaned equipment
shall not exceed its fair rental value.
(5) The following requirements pertain to the recipients supporting
records for in-kind contributions from
third parties.
(i) Volunteer services shall be documented and, to the extent feasible, supported by the same methods used by
the recipient for its own employees.
(ii) The basis for determining the
valuation for personal service, material, equipment, buildings and land
shall be documented.
(iii) Section 18(e) of the Federal
Transit Act, as amended, (49 U.S.C.
app. 1614(e)) provides that the Federal
share for operating assistance shall not
exceed 50 percent of the net cost. At
least 50 percent of the remainder (the
local share) must be derived from
sources other than Federal funds or
revenues of the system; and up to half
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19.25
(7) The transfer of funds allotted for
training allowances (direct payment to
trainees) to other categories of expense.
(8) Unless described in the application and funded in the approved
awards, the subaward, transfer or contracting out of any work under an
award. This provision does not apply to
the purchase of supplies, material,
equipment or general support services.
(d) No other prior approval requirements for specific items may be imposed unless a deviation has been approved by OMB.
(e) Except for requirements listed in
paragraphs (c)(1) and (c)(4) of this section, Federal awarding agencies are authorized, at their option, to waive costrelated and administrative prior written approvals required by this part and
OMB Circulars A21 and A122. Such
waivers may include authorizing recipients to do any one or more of the
following:
(1) Incur pre-award costs 90 calendar
days prior to award or more than 90
calendar days with the prior approval
of the Federal awarding agency. All
pre-award costs are incurred at the recipients risk (i.e., the Federal awarding agency is under no obligation to reimburse such costs if for any reason
the recipient does not receive an award
or if the award is less than anticipated
and inadequate to cover such costs).
(2) Initiate a one-time extension of
the expiration date of the award of up
to 12 months unless one or more of the
following conditions apply. For onetime extensions, the recipient must notify the Federal awarding agency in
writing with the supporting reasons
and revised expiration date at least 10
days before the expiration date specified in the award. This one-time extension may not be exercised merely for
the purpose of using unobligated balances.
(i) The terms and conditions of award
prohibit the extension.
(ii) The extension requires additional
Federal funds.
(iii) The extension involves any
change in the approved objectives or
scope of the project.
(3) Carry forward unobligated balances to subsequent funding periods.
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19.26
Non-Federal audits.
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PROPERTY STANDARDS
19.30 Purpose of property standards.
(a) Sections 19.31 through 19.37 set
forth uniform standards governing
management and disposition of property furnished by the Federal Government whose cost was charged to a
project supported by a Federal award.
19.32
Federal awarding agencies shall require recipients to observe these standards under awards and shall not impose
additional requirements, unless specifically required by Federal statute. The
recipient may use its own property
management standards and procedures
provided it observes the provisions of
19.31 through 19.37.
(b) Transfer of capital assets. Section
12(k) of the Federal Transit Act, as
amended, (49 U.S.C. app. 1608(k)) allows
the transfer without compensation of
real property (including land) and
equipment acquired under the Act for
another public purpose under certain
conditions. Procedures to allow these
transfers have not been issued.
19.31 Insurance coverage.
Recipients shall, at a minimum, provide the equivalent insurance coverage
for real property and equipment acquired with Federal funds as provided
to property owned by the recipient.
Federally-owned property need not be
insured unless required by the terms
and conditions of the award.
19.32 Real property.
Each Federal awarding agency shall
prescribe requirements for recipients
concerning the use and disposition of
real property acquired in whole or in
part under awards. Unless otherwise
provided by statute, such requirements, at a minimum, shall contain
the following.
(a) Title to real property shall vest in
the recipient subject to the condition
that the recipient shall use the real
property for the authorized purpose of
the project as long as it is needed and
shall not encumber the property without approval of the Federal awarding
agency.
(b) The recipient shall obtain written
approval by the Federal awarding agency for the use of real property in other
federally-sponsored projects when the
recipient determines that the property
is no longer needed for the purpose of
the original project. Use in other
projects shall be limited to those under
federally-sponsored
projects
(i.e.,
awards) or programs that have purposes consistent with those authorized
for support by the Department of
Transportation.
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19.33
Equipment.
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19.34
(vii) Location and condition of the
equipment and the date the information was reported.
(viii) Unit acquisition cost.
(ix) Ultimate disposition data, including date of disposal and sales price
or the method used to determine current fair market value where a recipient compensates the Federal awarding
agency for its share.
(2) Equipment owned by the Federal
Government shall be identified to indicate Federal ownership.
(3) A physical inventory of equipment
shall be taken and the results reconciled with the equipment records at
least once every two years. Any differences between quantities determined by the physical inspection and
those shown in the accounting records
shall be investigated to determine the
causes of the difference. The recipient
shall, in connection with the inventory, verify the existence, current utilization, and continued need for the
equipment.
(4) A control system shall be in effect
to insure adequate safeguards to prevent loss, damage, or theft of the
equipment. Any loss, damage, or theft
of equipment shall be investigated and
fully documented; if the equipment was
owned by the Federal Government, the
recipient shall promptly notify the
Federal awarding agency.
(5) Adequate maintenance procedures
shall be implemented to keep the
equipment in good condition.
(6) Where the recipient is authorized
or required to sell the equipment, proper sales procedures shall be established
which provide for competition to the
extent practicable and result in the
highest possible return.
(g) When the recipient no longer
needs the equipment, the equipment
may be used for other activities in accordance with the following standards.
For equipment with a current per unit
fair market value of $5,000 or more, the
recipient may retain the equipment for
other uses provided that compensation
is made to the original Federal awarding agency or its successor. The
amount of compensation shall be computed by applying the percentage of
Federal participation in the cost of the
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19.35
original project or program to the current fair market value of the equipment. If the recipient has no need for
the equipment, the recipient shall request disposition instructions from the
Federal awarding agency. The Federal
awarding
agency
shall
determine
whether the equipment can be used to
meet the agencys requirements. If no
requirement exists within that agency,
the availability of the equipment shall
be reported to the General Services Administration by the Federal awarding
agency to determine whether a requirement for the equipment exists in other
Federal agencies. The Federal awarding agency shall issue instructions to
the recipient no later than 120 calendar
days after the recipients request and
the following procedures shall govern.
(1) If so instructed or if disposition
instructions are not issued within 120
calendar days after the recipients request, the recipient shall sell the
equipment and reimburse the Federal
awarding agency an amount computed
by applying to the sales proceeds the
percentage of Federal participation in
the cost of the original project or program. However, the recipient shall be
permitted to deduct and retain from
the Federal share $500 or ten percent of
the proceeds, whichever is less, for the
recipients selling and handling expenses.
(2) If the recipient is instructed to
ship the equipment elsewhere, the recipient shall be reimbursed by the Federal Government by an amount which
is computed by applying the percentage of the recipients participation in
the cost of the original project or program to the current fair market value
of the equipment, plus any reasonable
shipping or interim storage costs incurred.
(3) If the recipient is instructed to
otherwise dispose of the equipment, the
recipient shall be reimbursed by the
Federal awarding agency for such costs
incurred in its disposition.
(4) The Federal awarding agency may
reserve the right to transfer the title
to the Federal Government or to a
third party named by the Federal Government when such third party is otherwise eligible under existing statutes.
Such transfer shall be subject to the
following standards.
(i) The equipment shall be appropriately identified in the award or otherwise made known to the recipient in
writing.
(ii) The Federal awarding agency
shall issue disposition instructions
within 120 calendar days after receipt
of a final inventory. The final inventory shall list all equipment acquired
with grant funds and federally-owned
equipment. If the Federal awarding
agency fails to issue disposition instructions within the 120 calendar day
period, the recipient shall apply the
standards of this section, as appropriate.
(iii) When the Federal awarding
agency exercises its right to take title,
the equipment shall be subject to the
provisions for federally-owned equipment.
19.35 Supplies and other expendable
property.
(a) Title to supplies and other expendable property shall vest in the recipient upon acquisition. If there is a
residual inventory of unused supplies
exceeding $5000 in total aggregate
value upon termination or completion
of the project or program and the supplies are not needed for any other federally-sponsored project or program,
the recipient shall retain the supplies
for use on non-Federal sponsored activities or sell them, but shall, in either case, compensate the Federal Government for its share. The amount of
compensation shall be computed in the
same manner as for equipment.
(b) The recipient shall not use supplies acquired with Federal funds to
provide services to non-Federal outside
organizations for a fee that is less than
private companies charge for equivalent services, unless specifically authorized by Federal statute as long as
the Federal Government retains an interest in the supplies.
19.36
Intangible property.
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19.37
(A) Trade secrets, commercial information, materials necessary to be held
confidential by a researcher until they
are published, or similar information
which is protected under law; and
(B) Personnel and medical information and similar information the disclosure of which would constitute a
clearly unwarranted invasion of personal privacy, such as information that
could be used to identify a particular
person in a research study.
(ii) Published is defined as either
when:
(A) Research findings are published
in a peer-reviewed scientific or technical journal; or
(B) A Federal agency publicly and officially cites the research findings in
support of an agency action that has
the force and effect of law.
(iii) Used by the Federal Government in
developing an agency action that has the
force and effect of law is defined as when
an agency publicly and officially cites
the research findings in support of an
agency action that has the force and
effect of law.
(e) Title to intangible property and
debt instruments acquired under an
award or subaward vests upon acquisition in the recipient. The recipient
shall use that property for the originally-authorized purpose, and the recipient shall not encumber the property without approval of the Federal
awarding agency. When no longer needed for the originally authorized purpose, disposition of the intangible property shall occur in accordance with the
provisions of paragraph 19.34(g).
[59 FR 15639, Apr. 4, 1994, as amended at 65
FR 14407, 14419, Mar. 16, 2000]
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19.40
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19.44
terprises when a contract is too large
for one of these firms to handle individually.
(5) Use the services and assistance, as
appropriate, of such organizations as
the Small Business Administration and
the Department of Commerces Minority Business Development Agency in
the solicitation and utilization of
small
businesses,
minority-owned
firms, and womens business enterprises.
(c) The type of procuring instruments
used (e.g., fixed price contracts, cost
reimbursable contracts, purchase orders, and incentive contracts) shall be
determined by the recipient but shall
be appropriate for the particular procurement and for promoting the best
interest of the program or project involved. The cost-plus-a-percentage-ofcost or percentage of construction
cost methods of contracting shall not
be used.
(d) Contracts shall be made only with
responsible contractors who possess
the potential ability to perform successfully under the terms and conditions of the proposed procurement.
Consideration shall be given to such
matters as contractor integrity, record
of past performance, financial and
technical resources or accessibility to
other necessary resources. In certain
circumstances, contracts with certain
parties are restricted by 49 CFR part
29, the implementation of E.O.s 12549
and 12689, Debarment and Suspension.
(e) Recipients shall, on request, make
available for the Federal awarding
agency, pre-award review and procurement documents, such as request for
proposals or invitations for bids, independent cost estimates, etc., when any
of the following conditions apply.
(1) A recipients procurement procedures or operation fails to comply with
the procurement standards in this part.
(2) The procurement is expected to
exceed the small purchase threshold
fixed at 41 U.S.C. 403 (11) (currently
$25,000) and is to be awarded without
competition or only one bid or offer is
received in response to a solicitation.
(3) The procurement, which is expected to exceed the small purchase
threshold, specifies a brand name
product.
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19.45
ments utilizing exclusionary or discriminatory specifications. Nonregulatory guidance is contained in FTA Circular 4220.1B, Third Party Contracting
Guidelines, Chapter I, section 15 and
Attachment A.
(4) Section 1241(b)(1) of 46 U.S.C. and
46 CFR part 381, Cargo Preference
U.S. Flag Vessels impose cargo preference requirements on the shipment
of foreign made goods for FTA recipients. Nonregulatory guidance is contained in FTA Circular 4220.1B, Third
Party Contracting Guidelines, Chapter
I, section 10.
19.45 Cost and price analysis.
Some form of cost or price analysis
shall be made and documented in the
procurement files in connection with
every procurement action. Price analysis may be accomplished in various
ways, including the comparison of
price quotations submitted, market
prices and similar indicia, together
with discounts. Cost analysis is the review and evaluation of each element of
cost to determine reasonableness,
allocability and allowability.
19.46 Procurement records.
Procurement records and files for
purchases in excess of the small purchase threshold shall include the following at a minimum:
(a) Basis for contractor selection,
(b) Justification for lack of competition when competitive bids or offers
are not obtained, and
(c) Basis for award cost or price.
19.47 Contract administration.
A system for contract administration
shall be maintained to ensure contractor conformance with the terms,
conditions and specifications of the
contract and to ensure adequate and
timely follow up of all purchases. Recipients shall evaluate contractor performance and document, as appropriate, whether contractors have met
the terms, conditions, and specifications of the contract.
19.48 Contract provisions.
The recipient shall include, in addition to provisions to define a sound and
complete agreement, the following provisions in all contracts. The following
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19.51
contractors obligations under such
contract.
(3) A payment bond on the part of the
contractor for 100 percent of the contract price. A payment bond is one
executed in connection with a contract
to assure payment as required by statute of all persons supplying labor and
material in the execution of the work
provided for in the contract.
(4) Where bonds are required in the
situations described herein, the bonds
shall be obtained from companies holding certificates of authority as acceptable sureties pursuant to 31 CFR part
223, Surety Companies Doing Business
with the United States.
(d) All negotiated contracts (except
those for less than the small purchase
threshold) awarded by recipients shall
include a provision to the effect that
the recipient, the Federal awarding
agency, the Comptroller General of the
United States, or any of their duly authorized representatives, shall have access to any books, documents, papers
and records of the contractor which are
directly pertinent to a specific program for the purpose of making audits,
examinations,
excerpts
and
transcriptions.
(e) All contracts, including small
purchases, awarded by recipients and
their contractors shall contain the procurement provisions of appendix A to
this part, as applicable.
REPORTS AND RECORDS
19.50
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19.52
19.52
Financial reporting.
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19.53
in 19.21, additional pertinent information to further monitor awards may be
obtained upon written notice to the recipient until such time as the system is
brought up to standard. The Federal
awarding agency, in obtaining this information, shall comply with report
clearance requirements of 5 CFR part
1320.
(3) Federal awarding agencies are encouraged to shade out any line item on
any report if not necessary.
(4) Federal awarding agencies may
accept the identical information from
the recipients in machine readable format or computer printouts or electronic outputs in lieu of prescribed formats.
(5) Federal awarding agencies may
provide computer or electronic outputs
to recipients when such expedites or
contributes to the accuracy of reporting.
19.53 Retention and access requirements for records.
(a) This section sets forth requirements for record retention and access
to records for awards to recipients.
Federal awarding agencies shall not
impose any other record retention or
access requirements upon recipients.
(b) Financial records, supporting documents, statistical records, and all
other records pertinent to an award
shall be retained for a period of three
years from the date of submission of
the final expenditure report or, for
awards that are renewed quarterly or
annually, from the date of the submission of the quarterly or annual financial report, as authorized by the Federal awarding agency. The only exceptions are the following.
(1) If any litigation, claim, or audit is
started before the expiration of the 3year period, the records shall be retained until all litigation, claims or
audit findings involving the records
have been resolved and final action
taken.
(2) Records for real property and
equipment acquired with Federal funds
shall be retained for 3 years after final
disposition.
(3) When records are transferred to or
maintained by the Federal awarding
agency, the 3-year retention requirement is not applicable to the recipient.
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19.60
Termination.
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termination that the reduced or modified portion of the grant will not accomplish the purposes for which the
grant was made, it may terminate the
grant in its entirety under either paragraph (a) (1) or (2) of this section.
(b) If costs are allowed under an
award, the responsibilities of the recipient referred to in 19.71(a), including those for property management as
applicable, shall be considered in the
termination of the award, and provision shall be made for continuing responsibilities of the recipient after termination, as appropriate.
19.62 Enforcement.
(a) Remedies for noncompliance. If a
recipient materially fails to comply
with the terms and conditions of an
award, whether stated in a Federal
statute, regulation, assurance, application, or notice of award, the Federal
awarding agency may, in addition to
imposing any of the special conditions
outlined in 19.14, take one or more of
the following actions, as appropriate in
the circumstances.
(1) Temporarily withhold cash payments pending correction of the deficiency by the recipient or more severe
enforcement action by the Federal
awarding agency.
(2) Disallow (that is, deny both use of
funds and any applicable matching
credit for) all or part of the cost of the
activity or action not in compliance.
(3) Wholly or partly suspend or terminate the current award.
(4) Withhold further awards for the
project or program.
(5) Take other remedies that may be
legally available.
(b) Hearings and appeals. In taking
an enforcement action, the awarding
agency shall provide the recipient an
opportunity for hearing, appeal, or
other administrative proceeding to
which the recipient is entitled under
any statute or regulation applicable to
the action involved.
(c) Effects of suspension and termination. Costs of a recipient resulting
from obligations incurred by the recipient during a suspension or after
termination of an award are not allowable unless the awarding agency expressly authorizes them in the notice
of suspension or termination or subse-
19.71
quently. Other recipient costs during
suspension or after termination which
are necessary and not reasonably
avoidable are allowable if the conditions in paragraph (c) (1) or (2) of this
section apply.
(1) The costs result from obligations
which were properly incurred by the recipient before the effective date of suspension or termination, are not in anticipation of it, and in the case of a termination, are noncancellable.
(2) The costs would be allowable if
the award were not suspended or expired normally at the end of the funding period in which the termination
takes effect.
(d) Relationship to debarment and
suspension. The enforcement remedies
identified in this section, including
suspension and termination, do not
preclude a recipient from being subject
to debarment and suspension under
E.O.s 12549 and 12689 and 49 CFR part 29
(see 19.13).
Subpart DAfter-the-Award
Requirements
19.70 Purpose.
Sections 19.71 through 19.73 contain
closeout procedures and other procedures for subsequent disallowances and
adjustments.
19.71 Closeout procedures.
(a) Recipients shall submit, within 90
calendar days after the date of completion of the award, all financial, performance, and other reports as required
by the terms and conditions of the
award. The Federal awarding agency
may approve extensions when requested by the recipient.
(b) Unless the Federal awarding agency authorizes an extension, a recipient
shall liquidate all obligations incurred
under the award not later than 90 calendar days after the funding period or
the date of completion as specified in
the terms and conditions of the award
or in agency implementing instructions.
(c) The Federal awarding agency
shall make prompt payments to a recipient for allowable reimbursable
costs under the award being closed out.
(d) The recipient shall promptly refund any balances of unobligated cash
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Pt. 20
tions issued pursuant to the Clean Air Act
(42 U.S.C. 7401 et seq.) and the Federal Water
Pollution Control Act as amended (33 U.S.C.
1251 et seq.). Violations shall be reported to
the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA).
7. Byrd Anti-Lobbying Amendment (31 U.S.C.
1352)Contractors who apply or bid for an
award of $100,000 or more shall file the certification required by 49 CFR part 20, New
Restrictions on Lobbying. Each tier certifies to the tier above that it will not and
has not used Federal appropriated funds to
pay any person or organization for influencing or attempting to influence an officer
or employee of any agency, a member of
Congress, officer or employee of Congress, or
an employee of a member of Congress in connection with obtaining any Federal contract,
grant or any other award covered by 31
U.S.C. 1352. Each tier shall also disclose any
lobbying with non-Federal funds that takes
place in connection with obtaining any Federal award. Such disclosures are forwarded
from tier to tier up to the recipient.
8. Debarment and Suspension (E.O.s 12549
and 12689)No contract shall be made to parties listed on the General Services Administrations List of Parties Excluded from Federal Procurement or Nonprocurement Programs in accordance with E.O.s 12549 and
12689, Debarment and Suspension and 49
CFR part 29. This list contains the names of
parties debarred, suspended, or otherwise excluded by agencies, and contractors declared
ineligible under statutory or regulatory authority other than E.O. 12549. Contractors
with awards that exceed the small purchase
threshold shall provide the required certification regarding its exclusion status and
that of its principal employees.
Penalties.
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20.100
20.405
20.410
Penalty procedures.
Enforcement.
Subpart EExemptions
20.500
Secretary of Defense.
Subpart AGeneral
20.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a Federal
contract, grant, loan, or cooperative
ageement to pay any person for influencing or attempting to influence an
officer or employee of any agency, a
Member of Congress, an officer or employee of Congress, or an employee of a
Member of Congress in connection with
any of the following covered Federal
actions: the awarding of any Federal
contract, the making of any Federal
grant, the making of any Federal loan,
the entering into of any cooperative
agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant,
loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal contract, grant, loan, or cooperative
agreement shall file with that agency a
certification, set forth in appendix A,
that the person has not made, and will
not make, any payment prohibited by
paragraph (a) of this section.
(c) Each person who requests or receives from an agency a Federal contract, grant, loan, or a cooperative
agreement shall file with that agency a
disclosure form, set forth in appendix
B, if such person has made or has
agreed to make any payment using
nonappropriated funds (to include prof-
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20.105
(1) An individual who is appointed to
a position in the Government under
title 5, U.S. Code, including a position
under a temporary appointment;
(2) A member of the uniformed services as defined in section 101(3), title 37,
U.S. Code;
(3) A special Government employee
as defined in section 202, title 18, U.S.
Code; and,
(4) An individual who is a member of
a Federal advisory committee, as defined by the Federal Advisory Committee Act, title 5, U.S. Code appendix
2.
(l) Person means an individual, corporation, company, association, authority, firm, partnership, society,
State, and local government, regardless of whether such entity is operated
for profit or not for profit. This term
excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal
law.
(m) Reasonable compensation means,
with respect to a regularly employed
officer or employee of any person, compensation that is consistent with the
normal compensation for such officer
or employee for work that is not furnished to, not funded by, or not furnished in cooperation with the Federal
Government.
(n) Reasonable payment means, with
respect to perfessional and other technical services, a payment in an amount
that is consistent with the amount normally paid for such services in the private sector.
(o) Recipient includes all contractors,
subcontractors at any tier, and subgrantees at any tier of the recipient of
funds received in connection with a
Federal contract, grant, loan, or cooperative agreement. The term excludes
an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically permitted by other Federal law.
(p) Regularly employed means, with
respect to an officer or employee of a
person requesting or receiving a Federal contract, grant, loan, or cooperative agreement or a commitment providing for the United States to insure
or guarantee a loan, an officer or employee who is employed by such person
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20.110
under paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or
more in the amount paid or expected to
be paid for influencing or attempting
to influence a covered Federal action;
or
(2) A change in the person(s) or individual(s) influencing or attempting to
influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted to
influence or attempt to influence a
covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000
at any tier under a Federal contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any tier
under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a Federal
loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a Federal
cooperative agreement,
Shall file a certification, and a disclosure form, if required, to the next tier
above.
(e) All disclosure forms, but not certifications, shall be forwarded from
tier to tier until received by the person
referred to in paragraphs (a) or (b) of
this section. That person shall forward
all disclosure forms to the agency.
(f) Any certification or disclosure
form filed under paragraph (e) of this
section shall be treated as a material
representation of fact upon which all
receiving tiers shall rely. All liability
arising from an erroneous representation shall be borne solely by the tier
filing that representation and shall not
be shared by any tier to which the erroneous representation is forwarded.
Submitting an erroneous certification
or disclosure constitutes a failure to
file the required certification or disclosure, respectively. If a person fails to
file a required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title 31, U.S.
Code.
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20.210
gotiation of any bid, proposal, or application for that Federal contract, grant,
loan, or cooperative agreement or for
meeting requirements imposed by or
pursuant to law as a condition for receiving that Federal contract, grant,
loan, or cooperative agreement.
(b) The reporting requirements in
20.110 (a) and (b) regarding filing a disclosure form by each person, if required, shall not apply with respect to
professional or technical services rendered directly in the preparation, submission, or negotiation of any commitment providing for the United States
to insure or guarantee a loan.
(c) For purposes of paragraph (a) of
this section, professional and technical services shall be limited to advice and analysis directly applying any
professional or technical discipline.
For example, drafting or a legal document accompanying a bid or proposal
by a lawyer is allowable. Similarly,
technical advice provided by an engineer on the performance or operational
capability of a piece of equipment rendered directly in the negotiation of a
contract is allowable. However, communications with the intent to influence made by a professional (such as a
licensed lawyer) or a technical person
(such as a licensed accountant) are not
allowable under this section unless
they provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered directly
and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence
made by a lawyer that do not provide
legal advice or analysis directly and
solely related to the legal aspects of
his or her clients proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services.
Similarly, communications with the
intent to influence made by an engineer providing an engineering analysis
prior to the preparation or submission
of a bid or proposal are not allowable
under this section since the engineer is
providing technical services but not directly in the preparation, submission
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20.400
Penalties.
(a) Any person who makes an expenditure prohibited herein shall be subject
to a civil penalty of not less than
$10,000 and not more than $100,000 for
each such expenditure.
(b) Any person who fails to file or
amend the disclosure form (see appendix B) to be filed or amended if required herein, shall be subject to a civil
penalty of not less than $10,000 and not
more than $100,000 for each such failure.
(c) A filing or amended filing on or
after the date on which an administrative action for the imposition of a civil
penalty is commenced does not prevent
the imposition of such civil penalty for
a failure occurring before that date. An
administrative action is commenced
with respect to a failure when an investigating official determines in writing
to commence an investigation of an allegation of such failure.
(d) In determining whether to impose
a civil penalty, and the amount of any
such penalty, by reason of a violation
by any person, the agency shall consider the nature, circumstances, extent, and gravity of the violation, the
effect on the ability of such person to
continue in business, any prior violations by such person, the degree of culpability of such person, the ability of
the person to pay the penalty, and such
other matters as may be appropriate.
20.600
(e) First offenders under paragraphs
(a) or (b) of this section shall be subject
to a civil penalty of $10,000, absent aggravating circumstances. Second and
subsequent offenses by persons shall be
subject to an appropriate civil penalty
between $10,000 and $100,000, as determined by the agency head or his or her
designee.
(f) An imposition of a civil penalty
under this section does not prevent the
United States from seeking any other
remedy that may apply to the same
conduct that is the basis for the imposition of such civil penalty.
20.405
Penalty procedures.
Enforcement.
Subpart EExemptions
20.500
Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a covered Federal action from the prohibition whenever the Secretary determines, in writing, that such an exemption is in the national interest. The
Secretary shall transmit a copy of each
such written exemption to Congress
immediately after making such a determination.
(b) The Department of Defense may
issue supplemental regulations to implement paragraph (a) of this section.
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20.605
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extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid
to any person for influencing or attempting
to influence an officer or employee of any
agency, a Member of Congress, an officer or
employee of Congress, or an employee of a
Member of Congress in connection with this
Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete
and submit Standard Form-LLL, Disclosure
Form to Report Lobbying, in accordance
with its instructions.
(3) The undersigned shall require that the
language of this certification be included in
the award documents for all subawards at all
tiers (including subcontracts, subgrants, and
contracts under grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed
when this transaction was made or entered
into. Submission of this certification is a
prerequisite for making or entering into this
transaction imposed by section 1352, title 31,
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EC02FE91.097</GPH>
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EC02FE91.099</GPH>
PART 21NONDISCRIMINATION IN
FEDERALLY-ASSISTED PROGRAMS
OF THE DEPARTMENT OF TRANSPORTATIONEFFECTUATION OF
TITLE VI OF THE CIVIL RIGHTS ACT
OF 1964
Sec.
21.1 Purpose.
21.3 Application of this part.
21.5 Discrimination prohibited.
21.7 Assurances required.
21.9 Compliance information.
21.11 Conduct of investigations.
21.13 Procedure for effecting compliance.
21.15 Hearings.
21.17 Decisions and notices.
21.19 Judicial review.
21.21 Effect on other regulations, forms, and
instructions.
21.23 Definitions.
APPENDIX A TO PART 21ACTIVITIES TO WHICH
THIS PART APPLIES
APPENDIX B TO PART 21ACTIVITIES TO WHICH
THIS PART APPLIES WHEN A PRIMARY OBJECTIVE OF THE FEDERAL FINANCIAL ASSISTANCE IS TO PROVIDE EMPLOYMENT
APPENDIX C TO PART 21APPLICATION OF
PART 21 TO CERTAIN FEDERAL FINANCIAL
ASSISTANCE OF THE DEPARTMENT OF
TRANSPORTATION
AUTHORITY: 42 U.S.C. 2000d-2000d7.
SOURCE: 35 FR 10080, June 18, 1970, unless
otherwise noted.
21.1 Purpose.
The purpose of this part is to effectuate the provisions of title VI of the
Civil Rights Act of 1964 (hereafter referred to as the Act) to the end that no
person in the United States shall, on
the grounds of race, color, or national
origin, be excluded from participation
in, be denied the benefits of, or be otherwise subjected to discrimination
under any program or activity receiving Federal financial assistance from
the Department of Transportation.
21.3 Application of this part.
(a) This part applies to any program
for which Federal financial assistance
is authorized under a law administered
by the Department, including the types
of Federal financial assistance listed in
appendix A to this part. It also applies
to money paid, property transferred, or
other Federal financial assistance extended after the effective date of this
part pursuant to an application ap-
21.5
proved before that effective date. This
part does not apply to:
(1) Any Federal financial assistance
by way of insurance or guaranty contracts;
(2) Money paid, property transferred,
or other assistance extended before the
effective date of this part, except
where such assistance was subject to
the title VI regulations of any agency
whose responsibilities are now exercised by this Department;
(3) Any assistance to any individual
who is the ultimate beneficiary; or
(4) Any employment practice, under
any such program, of any employer,
employment agency, or labor organization, except to the extent described in
21.5(c).
The fact that a type of Federal financial assistance is not listed in appendix
A to this part shall not mean, if title
VI of the Act is otherwise applicable,
that a program is not covered. Other
types of Federal financial assistance
under statutes now in force or hereinafter enacted may be added to appendix
A to this part.
(b) In any program receiving Federal
financial assistance in the form, or for
the acquisition, of real property or an
interest in real property, to the extent
that rights to space on, over, or under
any such property are included as part
of the program receiving that assistance, the nondiscrimination requirement of this part shall extend to any
facility located wholly or in part in
that space.
[35 FR 10080, June 18, 1970, as amended at 68
FR 51389, Aug. 26, 2003]
21.5
Discrimination prohibited.
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21.5
(i) Deny a person any service, financial aid, or other benefit provided
under the program;
(ii) Provide any service, financial aid,
or other benefit to a person which is
different, or is provided in a different
manner, from that provided to others
under the program;
(iii) Subject a person to segregation
or separate treatment in any matter
related to his receipt of any service, financial aid, or other benefit under the
program;
(iv) Restrict a person in any way in
the enjoyment of any advantage or
privilege enjoyed by others receiving
any service, financial aid, or other benefit under the program;
(v) Treat a person differently from
others in determining whether he satisfies any admission, enrollment, quota,
eligibility, membership, or other requirement or condition which persons
must meet in order to be provided any
service, financial aid, or other benefit
provided under the program;
(vi) Deny a person an opportunity to
participate in the program through the
provision of services or otherwise or afford him an opportunity to do so which
is different from that afforded others
under the program; or
(vii) Deny a person the opportunity
to participate as a member of a planning, advisory, or similar body which is
an integral part of the program.
(2) A recipient, in determining the
types of services, financial aid, or other
benefits, or facilities which will be provided under any such program, or the
class of person to whom, or the situations in which, such services, financial
aid, other benefits, or facilities will be
provided under any such program, or
the class of persons to be afforded an
opportunity to participate in any such
program; may not, directly or through
contractual or other arrangements,
utilize criteria or methods of administration which have the effect of subjecting persons to discrimination because of their race, color, or national
origin, or have the effect of defeating
or substantially impairing accomplishment of the objectives of the program
with respect to individuals of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient or appli-
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21.7
(d) A recipient may not make a selection of a site or location of a facility if
the purpose of that selection, or its effect when made, is to exclude individuals from participation in, to deny
them the benefits of, or to subject
them to discrimination under any program or activity to which this rule applies, on the grounds of race, color, or
national origin; or if the purpose is to,
or its effect when made will, substantially impair the accomplishment of
the objectives of this part.
[35 FR 10080, June 18, 1970, as amended by
Amdt. 722, 38 FR 17997, July 5, 1973; 68 FR
51389, Aug. 26, 2003]
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21.9
21.9
Compliance information.
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21.13
comply with this part, the Secretary
will so inform the recipient and the
matter will be resolved by informal
means whenever possible. If it has been
determined that the matter cannot be
resolved by informal means, action will
be taken as provided for in 21.13.
(2) If an investigation does not warrant action pursuant to paragraph
(d)(1) of this section the Secretary will
so inform the recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or other person
shall intimidate, threaten, coerce, or
discriminate against any individual for
the purpose of interfering with any
right or privilege secured by section 601
of the Act or this part, or because he
has made a complaint, testified, assisted, or participated in any manner
in an investigation, proceeding, or
hearing under this part. The identity of
complainants shall be kept confidential except to the extent necessary to
carry out the purposes of this part, including the conduct of any investigation, hearing, or judicial proceeding
arising thereunder.
[35 FR 10080, June 18, 1970, as amended by
Amdt. 722, 38 FR 17997, July 5, 1973]
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21.15
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21.17
Federal financial assistance is extended and to which this part applies,
or noncompliance with this part and
the regulations of one or more other
Federal departments or agencies issued
under title VI of the Act, the Secretary
may, by agreement with such other departments or agencies, where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules or
procedures not inconsistent with this
part. Final decisions in such cases, insofar as this regulation is concerned,
shall be made in accordance with
21.17.
[35 FR 10080, June 18, 1970, as amended at 68
FR 51389, Aug. 26, 2003]
21.17
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21.19
fected by an order issued under paragraph (f) of this section shall be restored to full eligibility to receive Federal financial assistance if it satisfies
the terms and conditions of that order
for such eligibility or if it brings itself
into compliance with this part and provides reasonable assurance that it will
fully comply with this part.
(2) Any applicant or recipient adversely affected by an order entered
pursuant to paragraph (f) of this section may at any time request the Secretary to restore fully its eligibility to
receive Federal financial assistance.
Any such request shall be supported by
information showing that the applicant
or recipient has met the requirements
of paragraph (g)(1) of this section. If
the Secretary determines that those
requirements have been satisfied, he
shall restore such eligibility.
(3) If the Secretary denies any such
request, the applicant or recipient may
submit a request for a hearing in writing, specifying who it believes such official to have been in error. It shall
thereupon be given an expeditious
hearing, with a decision on the record
in accordance with rules or procedures
issued by the Secretary. The applicant
or recipient will be restored to such eligibility if it proves at such a hearing
that it satisfied the requirements of
paragraph (g)(1) of this section.
While proceedings under this paragraph
are pending, the sanctions imposed by
the order issued under paragraph (f) of
this section shall remain in effect.
[35 FR 10080, June 18, 1970, as amended at 68
FR 51389, Aug. 26, 2003]
21.19
Judicial review.
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21.23
tion had been taken by the Secretary
of this Department.
[35 FR 10080, June 18, 1970, as amended at 68
FR 51389, Aug. 26, 2003]
21.23
Definitions.
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Pt. 22
Purpose.
Definitions.
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Application procedures.
Approvals and denials.
Allowable fees to borrowers.
Subpart AGeneral
22.1 Purpose.
The purpose of the DOT OSDBU
STLP is to provide financial assistance
in the form of short-term loans from
Participating Lenders that are guaranteed by DOT OSDBU, to DBEs and
SDBs for the execution of DOT funded
and supported transportation-related
contracts.
22.3 Definitions.
As used in this part:
Accounts receivable means monies
that are due to the borrower for work
performed or services rendered under a
contract, subcontract, or purchase
order.
Activation date means the date that
the STLP loan is established on the
Participating Lenders books and recorded as an open loan. It is also the
date that the borrower can begin to
drawn funds from the line of credit. Activation date is also the date in which
22.3
the DOT OSDBU guarantee becomes effective.
Assigned contract means the transportation-related
contract(s),
subcontract(s), and/or purchase order(s)
that has been pledged as collateral to a
STLP loan and perfected through an
assignment form executed by all appropriate parties.
Borrower is the obligor of a DOT
OSDBU guaranteed loan.
Cooperative agreement is the written
agreement between DOT OSDBU and a
Participating Lender that outlines the
terms and conditions under which the
lender may submit eligible loan requests to DOT OSDBU for consideration of its loan guarantee. The cooperative agreement further outlines the
responsibilities and requirements of
the lender in order to participate in the
STLP.
Director means Director, Office of
Small and Disadvantaged Business Utilization, U.S. Department of Transportation.
Disadvantaged business enterprise or
DBE means a business that is certified
as such by a recipient of DOT financial
assistance as provided in 49 CFR part
23 or 49 CFR part 26.
Guarantee agreement means DOT
OSDBUs written agreement with a
Participating Lender that provides the
terms and conditions under which DOT
OSDBU will guarantee a STLP loan. It
is not a contract to make a direct loan
to the borrower.
Loan guarantee means the agreement
of DOT OSDBU to issue a guarantee of
payment of a specified portion of an approved STLP loan to the Participating
Lender, under DOT OSDBU stated
terms and conditions, in the event that
the borrower defaults on the loan.
Loan purpose means the approved
uses for STLP loan proceeds. That is,
only for short-term working capital
needs related to the direct costs of an
eligible transportation-related contract.
Other eligible certifications mean the
following certifications obtained by a
borrower through the U.S. Small Business Administration (SBA): Small Disadvantaged Business (SDB); Section
8(a) Program participant; HUBZONE
Empowerment Contracting Program;
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22.11
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22.13
(3) To provide funds for the distribution or payment to the owners, partners or shareholders of the business;
and/or
(4) To retire short or long-term debt.
(f) Non-compliance by the DBE in
using the STLP loan for purposes not
consistent with these regulations will
result in a non-renewal of the STLP
loan and in forfeiture of the STLP loan
guarantee to the PL on any ineligible
principal advances requested by the
borrower and made by the PL.
(g) Disbursements. STLP funds may
only be released to an eligible borrower
upon the submission and verification of
a valid written accounts receivable invoice, showing labor and/or materials
amounts due for completed work on
the contract. The Participating Lender
must verify the accuracy of the invoice
with the paying transportation government agency, if the borrower is a prime
contractor, and/or with the prime contractor, if the borrower is a subcontractor. This verification must be obtained by the Participating Lender
prior to advancing funds. No more than
85% of an approved accounts receivable
invoice shall be advanced to the borrower by the Participating Lender.
(1) Processing time. Disbursement of
STLP funds to the borrower should be
accomplished within three (3) business
days of an accounts receivable invoice
approval by the paying agency and/or
prime contractor.
(2) Electronic funds transfer. If the
disbursement of STLP funds is being
sent to the borrower through a local
Participating Lender, the disbursement
should be made by electronic funds
transfer with the preferred method of
payment being the Automated Clearing
House (ACH) system.
(3) Wire transfers. Wire transfers can
be used if the ACH system is not available or if a same day disbursement is
required.
(4) Joint payee check system. A twoparty payee check system is required
in which the Participating Lender and
the borrower will be the co-payees of
any checks paid to the borrower for
performance under the assigned contract. Alternative payment methods
must have prior written approval by
DOT OSDBU.
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22.15
Credit criteria.
Participation criteria.
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22.23
www.osdbu.dot.gov/financial/docs/
CertlDebarmentlDOTlFl2309-1.pdf.
(j) It must be a drug-free workplace.
The Participating Lender must execute
current form DOT F 23071 Drug-Free
Workplace Act Certification For A
Grantee Other Than An Individual. The
certification form is available at http://
www.osdbu.dot.gov/financial/docs/
CertlDrug-FreelDOTlFl2307-1.pdf.;
and
(k) It must certify that no Federal
funds will be utilized for lobbying by
executing a current form DOT F 23081
Certificate Regarding Lobbying For
Contracts, Grants, Loans, and Cooperative Agreements in compliance with
section 1352, title 21, of the U.S. Code.
The certification form is available at
http://www.osdbu.dot.gov/financial/docs/
CertlLobbyinglDOTlFl2308-1.pdf.
22.23
Agreements.
(a) DOT OSDBU may enter into a cooperative agreement with a lender that
meets the criteria defined in 22.21 in
order for the lender to become a Participating Lender in the STLP. Such
an agreement does not obligate DOT
OSDBU to participate in any specific
proposed loan that a lender may submit. The existence of a cooperative
agreement does not limit the rights of
DOT OSDBU to deny a specific loan or
establish general policies. The current
cooperative agreement is available at
http://www.osdbu.dot.gov/financial/docs/
CooplAgreement.pdf.
(b) The cooperative agreement is generally for a minimum period of twentyfour (24) months. DOT OSDBU will consider the cooperative agreement for renewal at the end of the designated
term. If a cooperative agreement has
expired, no further applications for the
STLP shall be submitted to DOT
OSDBU by the Participating Lender
until a new cooperative agreement is
executed by both parties.
(c) Unless instructed otherwise by
DOT OSDBU, after the expiration of
the cooperative agreement, the Participating Lender will complete the
documentation of any loans which have
been given final DOT OSDBU approval
prior to expiration of the cooperative
agreement.
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22.25
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22.41
terms and conditions further described
in the cooperative agreement.
Application procedures.
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22.43
22.43
(a) Application Fees. The Participating Lender may charge the applicant a non-refundable loan application
fee, as determined from time to time
by DOT OSDBU, for each STLP loan
application processed, whether a new
loan request or a renewal request.
(b) Reasonable Closing Expenses. Provided the Participating Lender charges
similar fees to its non-STLP borrowers,
the Participating Lender may collect
reasonable closing expenses from the
borrower, provided that full disclosure
of such fees is made to the borrower
prior to the loan closing date. These
expenses include necessary out-ofpocket expenses to third parties such
as filing and recordation fees, as well
as loan closing document preparation
fees.
22.51
Loan closings.
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22.65 Subordination.
DOT OSDBU must not be placed in a
subordinate position to any other debt.
22.67 Delinquent loans and loan defaults.
(a) The Participating Lender must
bring to the immediate attention of
the Director any delinquent STLP
loans. The Participating Lender and
22.69
DOT OSDBU are jointly responsible for
establishing collection procedures and
must exercise due diligence with respect to collection of delinquent debt.
The Participating Lender is responsible
for initiating actions to recover such
debt. DOT OSDBU must approve any
compromise of a claim, resolution of a
dispute, suspension or termination of
collection action, or referral for litigation. A work-out solution will only be
considered if it is expected to minimize
the cost to the federal government in
resolving repayment delinquencies and/
or loan default. They must only be
used when the borrower is likely to be
able to repay the loan under the terms
of the work-out, and if the cost of establishing the work-out plan is less
than the costs of loan default and/or
foreclosure.
(b) In an appropriate situation, DOT
OSDBU may authorize the Participating Lender to undertake legal action deemed necessary to collect delinquent loans and DOT will reimburse
the Participating Lender on a pro rata
basis in proportion to the loan guarantee percentage for the associated
fees and costs, with prior authorization
from the Director. Penalties and late
fees are not eligible for reimbursement.
Any legal action undertaken by the
Participating Lender without OSDBU
authorization will not be eligible for a
pro rata basis reimbursement of the associated fees and costs. Net recoveries
applicable to accrued interest must be
applied on a pro rata basis in proportion to the formula used during the
term of the loan.
22.69
Claim process.
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Pt. 23
Subpart AGeneral
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23.3
the laws of the State of Alaska in accordance with the Alaska Native
Claims Settlement Act (43 U.S.C. 1601
et seq.)
Car dealership means an establishment primarily engaged in the retail
sale of new and/or used automobiles.
Car dealerships frequently maintain repair departments and carry stocks of
replacement parts, tires, batteries, and
automotive accessories. Such establishments also frequently sell pickup
trucks and vans at retail. In the standard industrial classification system,
car dealerships are categorized in
NAICS code 441110.
Concession means one or more of the
types of for-profit businesses listed in
paragraph (1) or (2) of this definition:
(1) A business, located on an airport
subject to this part, that is engaged in
the sale of consumer goods or services
to the public under an agreement with
the recipient, another concessionaire,
or the owner or lessee of a terminal, if
other than the recipient.
(2) A business conducting one or
more of the following covered activities, even if it does not maintain an office, store, or other business location
on an airport subject to this part, as
long as the activities take place on the
airport: Management contracts and
subcontracts, a web-based or other
electronic business in a terminal or
which passengers can access at the terminal, an advertising business that
provides advertising displays or messages to the public on the airport, or a
business that provides goods and services to concessionaires.
Example to paragraph (2): A supplier of
goods or a management contractor maintains its office or primary place of business
off the airport. However the supplier provides goods to a retail establishment in the
airport; or the management contractor operates the parking facility on the airport.
These businesses are considered concessions
for purposes of this part.
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23.3
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23.3
an ACDBE firm or a firm that is applying for ACDBE certification; the individuals equity in his or her primary
place of residence; and other assets
that the individual can document are
necessary to obtain financing or a franchise agreement for the initiation or
expansion of his or her ACDBE firm (or
have in fact been encumbered to support existing financing for the individuals ACDBE business), to a maximum
of $3 million. An individuals personal
net worth includes only his or her own
share of assets held jointly or as community property with the individuals
spouse.
Primary airport means a commercial
service airport that the Secretary determines to have more than 10,000 passengers enplaned annually.
Primary industry classification means
the North American Industrial Classification System (NAICS) code designation that best describes the primary
business of a firm. The NAICS Manual
is available through the National Technical Information Service (NTIS) of the
U.S. Department of Commerce (Springfield, VA, 22261). NTIS also makes materials available through its Web site
(http://www.ntis.gov/naics).
Primary recipient means a recipient to
which DOT financial assistance is extended through the programs of the
FAA and which passes some or all of it
on to another recipient.
Principal place of business means the
business location where the individuals
who manage the firms day-to-day operations spend most working hours and
where top managements business
records are kept. If the offices from
which management is directed and
where business records are kept are in
different locations, the recipient will
determine the principal place of business for ACDBE program purposes.
Race-conscious means a measure or
program that is focused specifically on
assisting only ACDBEs, including
women-owned ACDBEs. For the purposes of this part, race-conscious measures include gender-conscious measures.
Race-neutral means a measure or program that is, or can be, used to assist
all small businesses, without making
distinctions or classifications on the
basis of race or gender.
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23.5
23.5
If you are a recipient that has received a grant for airport development
at any time after January 1988 that
was authorized under Title 49 of the
United States Code, this part applies to
you.
23.7
Program reviews.
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23.13
tations and guidance are valid, and express the official positions and views of
the Department of Transportation or
the FAA, only if they are issued over
the signature of the Secretary of
Transportation or if they contain the
following statement:
The General Counsel of the Department of
Transportation has reviewed this document
and approved it as consistent with the language and intent of 49 CFR part 23.
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23.21
(i) There is a reasonable basis to conclude that you could achieve a level of
ACDBE participation consistent with
the objectives of this part using different or innovative means other than
those that are provided in subpart B or
D of this part;
(ii) Conditions at your airport are appropriate for implementing the proposal;
(iii) Your proposal would prevent discrimination against any individual or
group in access to concession opportunities or other benefits of the program;
and
(iv) Your proposal is consistent with
applicable law and FAA program requirements.
(3) The FAA Administrator has the
authority to approve your application.
If the Administrator grants your application, you may administer your
ACDBE program as provided in your
proposal, subject to the following conditions:
(i) ACDBE eligibility is determined
as provided in subpart C of this part,
and ACDBE participation is counted as
provided in 23.53 through 23.55.
(ii) Your level of ACDBE participation continues to be consistent with
the objectives of this part;
(iii) There is a reasonable limitation
on the duration of the your modified
program; and
(iv) Any other conditions the Administrator makes on the grant of the
waiver.
(4) The Administrator may end a program waiver at any time and require
you to comply with this parts provisions. The Administrator may also extend the waiver, if he or she determines
that all requirements of this section
continue to be met. Any such extension
shall be for no longer than period originally set for the duration of the program waiver.
[70 FR 14508, Mar. 22, 2005, as amended at 72
FR 15616, Apr. 2, 2007]
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23.25
(3) When practical, structuring concession activities so as to encourage
and facilitate the participation of
ACDBEs
(4) Providing technical assistance to
ACDBEs in overcoming limitations,
such as inability to obtain bonding or
financing;
(5) Ensuring that competitors for
concession opportunities are informed
during pre-solicitation meetings about
how the recipients ACDBE program
will affect the procurement process;
(6) Providing information concerning
the availability of ACDBE firms to
competitors to assist them in obtaining ACDBE participation; and
(7) Establishing a business development program (see part 26, 26.35); technical assistance program; or taking
other steps to foster ACDBE participation in concessions.
(e) Your ACDBE program must also
provide for the use of race-conscious
measures when race-neutral measures,
standing alone, are not projected to be
sufficient to meet an overall goal. The
following are examples of race-conscious measures you can implement:
(1) Establishing concession-specific
goals for particular concession opportunities.
(i) If the objective of the concessionspecific goal is to obtain ACDBE participation through a direct ownership
arrangement with a ACDBE, calculate
the goal as a percentage of the total estimated annual gross receipts from the
concession.
(ii) If the goal applies to purchases
and/or leases of goods and services, calculate the goal by dividing the estimated dollar value of such purchases
and/or leases from ACDBEs by the
total estimated dollar value of all purchases to be made by the concessionaire.
(iii) To be eligible to be awarded the
concession, competitors must make
good faith efforts to meet this goal. A
competitor may do so either by obtaining enough ACDBE participation to
meet the goal or by documenting that
it made sufficient good faith efforts to
do so.
(iv) The administrative procedures
applicable to contract goals in part 26,
26.5153, apply with respect to concession-specific goals.
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23.27
(2) Negotiation with a potential concessionaire to include ACDBE participation, through direct ownership arrangements or measures, in the operation of the concession.
(3) With the prior approval of FAA,
other methods that take a competitors
ability to provide ACDBE participation
into account in awarding a concession.
(f) Your ACDBE program must require businesses subject to ACDBE
goals at the airport (except car rental
companies) to make good faith efforts
to explore all available options to meet
goals, to the maximum extent practicable, through direct ownership arrangements with DBEs.
(g) As provided in 23.61 of this part,
you must not use set-asides and quotas
as means of obtaining ACDBE participation.
23.27 What information does a recipient have to retain and report about
implementation of its ACDBE program?
(a) As a recipient, you must retain
sufficient basic information about your
program implementation, your certification of ACDBEs, and the award and
performance of agreements and contracts to enable the FAA to determine
your compliance with this part. You
must retain this data for a minimum of
three years following the end of the
concession agreement or other covered
contract.
(b) Beginning March 1, 2006, you must
submit an annual report on ACDBE
participation using the form found in
appendix A to this part. You must submit the report to the appropriate FAA
Regional Civil Rights Office.
23.29 What monitoring and compliance procedures must recipients
follow?
As a recipient, you must implement
appropriate mechanisms to ensure
compliance with the requirements of
this part by all participants in the program. You must include in your concession program the specific provisions
to be inserted into concession agreements and management contracts, the
enforcement mechanisms, and other
means you use to ensure compliance.
These provisions must include a monitoring and enforcement mechanism to
verify that the work committed to
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23.39
23.39 What other certification requirements apply in the case of
ACDBEs?
(a) The provisions of part 26, 26.83
(c)(2) through (c)(6) do not apply to certifications for purposes of this part. Instead, in determining whether a firm is
an eligible ACDBE, you must take the
following steps:
(1) Obtain the resumes or work histories of the principal owners of the
firm and personally interview these individuals;
(2) Analyze the ownership of stock of
the firm, if it is a corporation;
(3) Analyze the bonding and financial
capacity of the firm;
(4) Determine the work history of the
firm, including any concession contracts or other contracts it may have
received;
(5) Obtain or compile a list of the licenses of the firm and its key personnel to perform the concession contracts or other contracts it wishes to
receive;
(6) Obtain a statement from the firm
of the type(s) of concession(s) it prefers
to operate or the type(s) of other contract(s) it prefers to perform.
(b) In reviewing the affidavit required by part 26, 26.83(j), you must
ensure that the ACDBE firm meets the
applicable size standard in 23.33.
(c) For purposes of this part, the
term prime contractor in part 26,
26.87(i) includes a firm holding a
prime contract with an airport concessionaire to provide goods or services to
the concessionaire or a firm holding a
prime concession agreement with a recipient.
(d) With respect to firms owned by
Alaska Native Corporations (ANCs),
the provisions of part 26, 26.73(i) do
not apply under this part. The eligibility of ANC-owned firms for purposes
of this part is governed by 26.73(h).
(e) When you remove a concessionaires eligibility after the concessionaire has entered a concession
agreement, because the firm exceeded
the small business size standard or because an owner has exceeded the personal net worth standard, and the firm
in all other respects remains an eligible DBE, you may continue to count
the concessionaires participation toward DBE goals during the remainder
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23.41
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23.47
basis for making this projection (see
23.51(d)(5))
(g) FAA may approve or disapprove
the way you calculated your goal, including your race-neutral/race-conscious split, as part of its review of
your plan or goal submission. Except
as provided in paragraph (h) of this section, the FAA does not approve or disapprove the goal itself (i.e., the number).
(h) If the FAA determines that your
goals have not been correctly calculated or the justification is inadequate, the FAA may, after consulting
with you, adjust your overall goal or
race-conscious/race-neutral
split.
The adjusted goal represents the FAAs
determination of an appropriate overall goal for ACDBE participation in the
recipients concession program, based
on relevant data and analysis. The adjusted goal is binding on you.
(i) If a new concession opportunity
the estimated average annual gross
revenues of which are anticipated to be
$200,000 or greater arises at a time that
falls between normal submission dates
for overall goals, you must submit an
appropriate adjustment to your overall
goal to the FAA for approval at least
six months before executing the concession agreement for the new concession opportunity.
23.47 What is the base for a recipients goal for concessions other
than car rentals?
(a) As a recipient, the base for your
goal includes the total gross receipts of
concessions, except as otherwise provided in this section.
(b) This base does not include the
gross receipts of car rental operations.
(c) The dollar amount of a management contract or subcontract with a
non-ACDBE and the gross receipts of
business activities to which a management or subcontract with a nonACDBE pertains are not added to this
base.
(d) This base does not include any
portion of a firms estimated gross receipts that will not be generated from
a concession.
Example to paragraph (d): A firm operates a
restaurant in the airport terminal which
serves the traveling public and under the
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23.49
same lease agreement, provides in-flight catering service to air carriers. The projected
gross receipts from the restaurant are included in the overall goal calculation, while
the gross receipts to be earned by the inflight catering services are not.
23.49 What is the base for a recipients goal for car rentals?
Except in the case where you use the
alternative
goal
approach
of
23.51(c)(5)(ii), the base for your goal is
the total gross receipts of car rental
operations at your airport. You do not
include gross receipts of other concessions in this base.
23.51 How are a recipients overall
goals expressed and calculated?
(a) Your objective in setting a goal is
to estimate the percentage of the base
calculated under 23.4723.49 that
would be performed by ACDBEs in the
absence of discrimination and its effects.
(1) This percentage is the estimated
ACDBE participation that would occur
if there were a level playing field for
firms to work as concessionaires for
your airport.
(2) In conducting this goal setting
process, you are determining the extent, if any, to which the firms in your
market area have suffered discrimination or its effects in connection with
concession opportunities or related
business opportunities.
(3) You must complete the goal-setting process separately for each of the
two overall goals identified in 23.41 of
this part.
(b)(1) Each overall concessions goal
must be based on demonstrable evidence of the availability of ready, willing and able ACDBEs relative to all
businesses ready, willing and able to
participate in your ACDBE program
(hereafter, the relative availability of
ACDBEs).
(2) You cannot simply rely on the 10
percent national aspirational goal,
your previous overall goal, or past
ACDBE participation rates in your program without reference to the relative
availability of ACDBEs in your market.
(3) Your market area is defined by
the geographical area in which the substantial majority of firms which seek
to do concessions business with the air-
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23.51
grow and compete. These include, but
are not limited to:
(i) Statistical disparities in the ability of ACDBEs to get the financing,
bonding and insurance required to participate in your program;
(ii) Data on employment, self-employment, education, training and
union apprenticeship programs, to the
extent you can relate it to the opportunities for ACDBEs to perform in your
program.
(4) If you attempt to make an adjustment to your base figure to account for
the continuing effects of past discrimination, or the effects of an ongoing
ACDBE program, the adjustment must
be based on demonstrable evidence that
is logically and directly related to the
effect for which the adjustment is
sought.
(5) Among the information you submit with your overall goal (see 23.45(e)),
you must include description of the
methodology you used to establish the
goal, including your base figure and
the evidence with which it was calculated, as well as the adjustments you
made to the base figure and the evidence relied on for the adjustments.
You should also include a summary
listing of the relevant available evidence in your jurisdiction and an explanation of how you used that evidence to adjust your base figure. You
must also include your projection of
the portions of the overall goal you expect to meet through race-neutral and
race-conscious measures, respectively
(see 26.51(c)).
(e) You are not required to obtain
prior FAA concurrence with your overall goal (i.e., with the number itself).
However, if the FAAs review suggests
that your overall goal has not been
correctly calculated, or that your
method for calculating goals is inadequate, the FAA may, after consulting
with you, adjust your overall goal or
require that you do so. The adjusted
overall goal is binding on you.
(f) If you need additional time to collect data or take other steps to develop
an approach to setting overall goals,
you may request the approval of the
FAA Administrator for an interim goal
and/or goal-setting mechanism. Such a
mechanism must:
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23.53
23.55 How
do
recipients
count
ACDBE participation toward goals
for items other than car rentals?
(a) You count only ACDBE participation that results from a commercially
useful function. For purposes of this
part, the term commercially useful
function has the same meaning as in
part 26, 26.55(c), except that the requirements of 26.55(c)(3) do not apply
to concessions.
(b) Count the total dollar value of
gross receipts an ACDBE earns under a
concession agreement and the total
dollar value of a management contract
or subcontract with an ACDBE toward
the goal. However, if the ACDBE enters
into a subconcession agreement or subcontract with a non-ACDBE, do not
count any of the gross receipts earned
by the non-ACDBE.
(c) When an ACDBE performs as a
subconcessionaire or subcontractor for
a non-ACDBE, count only the portion
of the gross receipts earned by the
ACDBE under its subagreement.
(d) When an ACDBE performs as a
participant in a joint venture, count a
portion of the gross receipts equal to
the distinct, clearly defined portion of
the work of the concession that the
ACDBE performs with its own forces
toward ACDBE goals.
(e) Count the entire amount of fees or
commissions charged by an ACDBE
firm for a bona fide service, provided
that, as the recipient, you determine
this amount to be reasonable and not
excessive as compared with fees customarily allowed for similar services.
Such services may include, but are not
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23.59
(k) Do not count costs incurred in
connection with the renovation, repair,
or construction of a concession facility
(sometimes referred to as the buildout).
(l) Do not count the ACDBE participation of car rental companies toward
your ACDBE achievements toward this
goal.
23.57 What happens if a recipient
falls short of meeting its overall
goals?
(a) You cannot be penalized, or treated by the Department as being in noncompliance with this part, simply because your ACDBE participation falls
short of your overall goals. You can be
penalized or treated as being in noncompliance only if you have failed to
administer your ACDBE program in
good faith.
(b) If your ACDBE participation falls
short of your overall goals, FAA may
require you to submit to the FAA a
statement of the reasons why you were
unable to meet it and the steps you are
taking to meet your overall goals or to
adjust them based on changed circumstances.
(c) In response to your submission,
FAA may require you to implement appropriate remedial measures,
23.59 What is the role of the statutory 10 percent goal in the ACDBE
program?
(a) The statute authorizing the
ACDBE program provides that, except
to the extent the Secretary determines
otherwise, not less than 10 percent of
concession businesses are to be
ACDBEs.
(b) This 10 percent goal is an aspirational goal at the national level, which
the Department uses as a tool in evaluating and monitoring DBEs opportunities to participate in airport concessions.
(c) The national 10 percent aspirational goal does not authorize or require recipients to set overall or concession-specific goals at the 10 percent
level, or any other particular level, or
to take any special administrative
steps if their goals are above or below
10 percent.
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23.61
You must not use quotas or setasides for ACDBE participation in your
program.
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5. Non-car rental
Cumulative ACDBE participation
A
Total
dollars
(everyone)
B
Total
number
(everyone)
C
Total to
ACDBEs
(dollars)
D
Total to
ACDBEs
(number)
E
RC to
ACDBEs
(dollars)
F
RN to
ACDBEs
(dollars)
G
% of
dollars to
ACDBEs
Prime Concessions.
Subconcessions.
Management Contracts ...............
Goods/Services.
Totals.
XXXXXXX
XXXXXXX
..................
..................
..................
..................
XXXXXX
6. Non-Car rental
New ACDBE participation
this period
A
Total
dollars
(everyone)
B
Total
number
(everyone)
C
Total to
ACDBEs
(dollars)
D
Total to
ACDBEs
(number)
E
RC to
ACDBEs
(dollars)
F
RN to
ACDBEs
(dollars)
G
% of
dollars to
ACDBEs
Prime Concessions.
Subconcessions.
Management Contracts ...............
Goods/Services.
Totals.
XXXXXXX
XXXXXXX
..................
..................
..................
XXXXXX
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..................
Pt. 24
A
Total
dollars
(everyone)
B
Total
number
(everyone)
C
Total to
ACDBEs
(dollars)
D
Total to
ACDBEs
(number)
E
RC to
ACDBEs
(dollars)
F
RN to
ACDBEs
(dollars)
G
% of
dollars to
ACDBEs
A
Total
dollars
(everyone)
B
Total
number
(everyone)
C
Total to
ACDBEs
(dollars)
D
Total to
ACDBEs
(number)
E
RC to
ACDBEs
(dollars)
F
RN to
ACDBEs
(dollars)
G
% of
dollars to
ACDBEs
B
Hispanic
Americans
C
Asian-Pacific Americans
D
Asian-Indian Americans
E
Native
Americans
F
Non-minority Women
G
Other
H
Totals
Prime Concessions.
Subconcessions.
Goods/Services.
Totals.
9. Car rental
New ACDBE participation this
period
Prime Concessions.
Subconcessions.
Goods/Services.
Totals.
10. Cumulative
ACDBE participation by race/gender
A
Black
Americans
Car Rental.
Non-Car Rental.
Totals.
11. On an attachment, list the following information for each ACDBE firm participating in your program during the period of
this report: (1) Firm name; (2) Type of business; (3) Beginning and expiration dates of
agreement, including options to renew; (4)
Dates that material amendments have been
or will be made to agreement (if known); (5)
Estimated gross receipts for the firm during
this reporting period.
Subpart AGeneral
Sec.
24.1 Purpose.
24.2 Definitions and acronyms.
24.3 No duplication of payments.
24.4 Assurances, monitoring and corrective
action.
24.5 Manner of notices.
24.6 Administration
of
jointly-funded
projects.
24.7 Federal Agency waiver of regulations.
24.8 Compliance with other laws and regulations.
24.9 Recordkeeping and reports.
24.10 Appeals.
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24.1
Subpart GCertification
24.601 Purpose.
24.602 Certification application.
24.603 Monitoring and corrective action.
APPENDIX A TO PART 24ADDITIONAL INFORMATION
Subpart AGeneral
24.1 Purpose.
The purpose of this part is to promulgate rules to implement the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of 1970, as
amended (42 U.S.C. 4601 et seq.) (Uniform Act), in accordance with the following objectives:
(a) To ensure that owners of real
property to be acquired for Federal and
federally-assisted projects are treated
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(6) Comparable replacement dwelling.
The term comparable replacement dwelling means a dwelling which is:
(i) Decent, safe and sanitary as described in paragraph 24.2(a)(8) of this
section;
(ii) Functionally equivalent to the
displacement dwelling. The term functionally equivalent means that it performs the same function, and provides
the same utility. While a comparable
replacement dwelling need not possess
every feature of the displacement
dwelling, the principal features must
be
present.
Generally,
functional
equivalency is an objective standard,
reflecting the range of purposes for
which the various physical features of
a dwelling may be used. However, in
determining whether a replacement
dwelling is functionally equivalent to
the displacement dwelling, the Agency
may consider reasonable trade-offs for
specific features when the replacement
unit is equal to or better than the displacement dwelling (See appendix A,
24.2(a)(6));
(iii) Adequate in size to accommodate the occupants;
(iv) In an area not subject to unreasonable adverse environmental conditions;
(v) In a location generally not less
desirable than the location of the displaced persons dwelling with respect
to public utilities and commercial and
public facilities, and reasonably accessible to the persons place of employment;
(vi) On a site that is typical in size
for residential development with normal site improvements, including customary landscaping. The site need not
include special improvements such as
outbuildings, swimming pools, or
greenhouses. (See also 24.403(a)(2));
(vii) Currently available to the displaced person on the private market
except as provided in paragraph
(a)(6)(ix) of this section (See appendix
A, 24.2(a)(6)(vii)); and
(viii) Within the financial means of
the displaced person:
(A) A replacement dwelling purchased by a homeowner in occupancy
at the displacement dwelling for at
least 180 days prior to initiation of negotiations (180-day homeowner) is considered to be within the homeowners
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(E) An owner-occupant who moves as
a result of an acquisition of real property as described in 24.101(a)(2) or
24.101(b)(1) or (2), or as a result of the
rehabilitation or demolition of the real
property. (However, the displacement
of a tenant as a direct result of any acquisition, rehabilitation or demolition
for a Federal or federally-assisted
project is subject to this part.);
(F) A person whom the Agency determines is not displaced as a direct result
of a partial acquisition;
(G) A person who, after receiving a
notice of relocation eligibility (described at 24.203(b)), is notified in
writing that he or she will not be displaced for a project. Such written notification shall not be issued unless the
person has not moved and the Agency
agrees to reimburse the person for any
expenses incurred to satisfy any binding contractual relocation obligations
entered into after the effective date of
the notice of relocation eligibility;
(H) An owner-occupant who conveys
his or her property, as described in
24.101(a)(2) or 24.101(b)(1) or (2), after
being informed in writing that if a mutually satisfactory agreement on terms
of the conveyance cannot be reached,
the Agency will not acquire the property. In such cases, however, any resulting displacement of a tenant is subject to the regulations in this part;
(I) A person who retains the right of
use and occupancy of the real property
for life following its acquisition by the
Agency;
(J) An owner who retains the right of
use and occupancy of the real property
for a fixed term after its acquisition by
the Department of the Interior under
Pub. L. 93477, Appropriations for National Park System, or Pub. L. 93303,
Land and Water Conservation Fund,
except that such owner remains a displaced person for purposes of subpart D
of this part;
(K) A person who is determined to be
in unlawful occupancy prior to or after
the initiation of negotiations, or a person who has been evicted for cause,
under applicable law, as provided for in
24.206. However, advisory assistance
may be provided to unlawful occupants
at the option of the Agency in order to
facilitate the project;
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24.2
(23) Salvage value. The term salvage
value means the probable sale price of
an item offered for sale to knowledgeable buyers with the requirement that
it be removed from the property at a
buyers expense (i.e., not eligible for relocation assistance). This includes
items for re-use as well as items with
components that can be re-used or recycled when there is no reasonable
prospect for sale except on this basis.
(24) Small business. A small business is
a business having not more than 500
employees working at the site being
acquired or displaced by a program or
project, which site is the location of
economic activity. Sites occupied solely by outdoor advertising signs, displays, or devices do not qualify as a
business for purposes of 24.304.
(25) State. Any of the several States
of the United States or the District of
Columbia, the Commonwealth of Puerto Rico, any territory or possession of
the United States, or a political subdivision of any of these jurisdictions.
(26) Tenant. The term tenant means a
person who has the temporary use and
occupancy of real property owned by
another.
(27) Uneconomic remnant. The term
uneconomic remnant means a parcel of
real property in which the owner is left
with an interest after the partial acquisition of the owners property, and
which the Agency has determined has
little or no value or utility to the
owner.
(28) Uniform Act. The term Uniform
Act means the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (Pub. L. 91646, 84
Stat. 1894; 42 U.S.C. 4601 et seq.), and
amendments thereto.
(29) Unlawful occupant. A person who
occupies without property right, title
or payment of rent or a person legally
evicted, with no legal rights to occupy
a property under State law. An Agency,
at its discretion, may consider such
person to be in lawful occupancy.
(30) Utility costs. The term utility costs
means expenses for electricity, gas,
other heating and cooking fuels, water
and sewer.
(31) Utility facility. The term utility facility means any electric, gas, water,
steam power, or materials transmission or distribution system; any
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24.3
transportation system; any communications system, including cable television; and any fixtures, equipment, or
other property associated with the operation, maintenance, or repair of any
such system. A utility facility may be
publicly, privately, or cooperatively
owned.
(32) Utility relocation. The term utility
relocation means the adjustment of a
utility facility required by the program
or project undertaken by the displacing
Agency. It includes removing and reinstalling the facility, including necessary temporary facilities; acquiring
necessary right-of-way on a new location; moving, rearranging or changing
the type of existing facilities; and taking any necessary safety and protective
measures. It shall also mean constructing a replacement facility that
has the functional equivalency of the
existing facility and is necessary for
the continued operation of the utility
service, the project economy, or sequence of project construction.
(33) Waiver valuation. The term waiver
valuation means the valuation process
used and the product produced when
the Agency determines that an appraisal is not required, pursuant to
24.102(c)(2) appraisal waiver provisions.
(b) Acronyms. The following acronyms
are commonly used in the implementation of programs subject to this regulation:
(1) BCIS. Bureau of Citizenship and
Immigration Service.
(2) FEMA. Federal Emergency Management Agency.
(3) FHA. Federal Housing Administration.
(4) FHWA. Federal Highway Administration.
(5) FIRREA. Financial Institutions
Reform, Recovery, and Enforcement
Act of 1989.
(6) HLR. Housing of last resort.
(7) HUD. U.S. Department of Housing
and Urban Development.
(8) MIDP. Mortgage interest differential payment.
(9) RHP. Replacement housing payment.
(10) STURAA. Surface Transportation and Uniform Relocation Act
Amendments of 1987.
No duplication of payments.
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24.8
At a minimum, the agreement shall set
forth the federally-assisted activities
which are subject to its terms and cite
any policies and procedures, in addition to this part, that are applicable to
the activities under the agreement.
Under the agreement, the cognizant
Federal Agency shall assure that the
project is in compliance with the provisions of the Uniform Act and this part.
All federally-assisted activities under
the agreement shall be deemed a
project for the purposes of this part.
24.7 Federal Agency waiver of regulations.
The Federal Agency funding the
project may waive any requirement in
this part not required by law if it determines that the waiver does not reduce any assistance or protection provided to an owner or displaced person
under this part. Any request for a waiver shall be justified on a case-by-case
basis.
24.8 Compliance with other laws and
regulations.
The implementation of this part
must be in compliance with other applicable Federal laws and implementing regulations, including, but not
limited to, the following:
(a) Section I of the Civil Rights Act
of 1866 (42 U.S.C. 1982 et seq.).
(b) Title VI of the Civil Rights Act of
1964 (42 U.S.C. 2000d et seq.).
(c) Title VIII of the Civil Rights Act
of 1968 (42 U.S.C. 3601 et seq.), as amended.
(d) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(e) Section 504 of the Rehabilitation
Act of 1973 (29 U.S.C. 790 et seq.).
(f) The Flood Disaster Protection Act
of 1973 (Pub. L. 93234).
(g) The Age Discrimination Act of
1975 (42 U.S.C. 6101 et seq.).
(h) Executive Order 11063Equal Opportunity and Housing, as amended by
Executive Order 12892.
(i) Executive Order 11246Equal Employment Opportunity, as amended.
(j) Executive Order 11625Minority
Business Enterprise.
(k) Executive Orders 11988Floodplain Management, and 11990Protection of Wetlands.
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24.101
ignated project area where all or substantially all of the property within
the area is to be acquired within specific time limits.
(iii) The Agency will not acquire the
property if negotiations fail to result
in an amicable agreement, and the
owner is so informed in writing.
(iv) The Agency will inform the
owner in writing of what it believes to
be the market value of the property.
(See appendix A, 24.101(b)(1)(iv) and
(2)(ii).)
(2) Acquisitions for programs or
projects undertaken by an Agency or
person that receives Federal financial
assistance but does not have authority
to acquire property by eminent domain, provided that such Agency or
person shall:
(i) Prior to making an offer for the
property, clearly advise the owner that
it is unable to acquire the property if
negotiations fail to result in an agreement; and
(ii) Inform the owner in writing of
what it believes to be the market value
of the property. (See appendix A,
24.101(b)(1)(iv) and (2)(ii).)
(3) The acquisition of real property
from a Federal Agency, State, or State
Agency, if the Agency desiring to make
the purchase does not have authority
to acquire the property through condemnation.
(4) The acquisition of real property
by a cooperative from a person who, as
a condition of membership in the cooperative, has agreed to provide without
charge any real property that is needed
by the cooperative.
(5) Acquisition for a program or
project that receives Federal financial
assistance from the Tennessee Valley
Authority or the Rural Utilities Service.
(c) Less-than-full-fee interest in real
property. (1) The provisions of this subpart apply when acquiring fee title subject to retention of a life estate or a
life use; to acquisition by leasing where
the lease term, including option(s) for
extension, is 50 years or more; and to
the acquisition of permanent and/or
temporary easements necessary for the
project. However, the Agency may
apply these regulations to any lessthan-full-fee acquisition that, in its
judgment, should be covered.
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24.102
value of such property, or the court
award of compensation in the condemnation proceeding for the property.
In exceptional circumstances, with the
prior approval of the owner, the Agency may obtain a right-of-entry for construction purposes before making payment available to an owner. (See appendix A, 24.102(j).)
(k) Uneconomic remnant. If the acquisition of only a portion of a property
would leave the owner with an uneconomic remnant, the Agency shall offer
to acquire the uneconomic remnant
along with the portion of the property
needed for the project. (See 24.2(a)(27).)
(l) Inverse condemnation. If the Agency intends to acquire any interest in
real property by exercise of the power
of eminent domain, it shall institute
formal condemnation proceedings and
not intentionally make it necessary for
the owner to institute legal proceedings to prove the fact of the taking
of the real property.
(m) Fair rental. If the Agency permits
a former owner or tenant to occupy the
real property after acquisition for a
short term, or a period subject to termination by the Agency on short notice, the rent shall not exceed the fair
market rent for such occupancy. (See
appendix A, 24.102(m).)
(n) Conflict of interest. (1) The appraiser, review appraiser or person performing the waiver valuation shall not
have any interest, direct or indirect, in
the real property being valued for the
Agency.
Compensation for making an appraisal or waiver valuation shall not be
based on the amount of the valuation
estimate.
(2) No person shall attempt to unduly
influence or coerce an appraiser, review appraiser, or waiver valuation
preparer regarding any valuation or
other aspect of an appraisal, review or
waiver valuation. Persons functioning
as negotiators may not supervise or
formally evaluate the performance of
any appraiser or review appraiser performing appraisal or appraisal review
work, except that, for a program or
project receiving Federal financial assistance, the Federal funding Agency
may waive this requirement if it determines it would create a hardship for
the Agency.
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24.103
are relevant to its program needs, reflect established and commonly accepted Federal and federally-assisted program appraisal practice, and as a minimum, complies with the definition of
appraisal in 24.2(a)(3) and the five following requirements: (See appendix A,
24.103 and 24.103(a).)
(i) An adequate description of the
physical characteristics of the property
being appraised (and, in the case of a
partial acquisition, an adequate description of the remaining property),
including items identified as personal
property, a statement of the known
and observed encumbrances, if any,
title information, location, zoning,
present use, an analysis of highest and
best use, and at least a 5-year sales history of the property. (See appendix A,
24.103(a)(1).)
(ii) All relevant and reliable approaches to value consistent with established Federal and federally-assisted program appraisal practices. If
the appraiser uses more than one approach, there shall be an analysis and
reconciliation of approaches to value
used that is sufficient to support the
appraisers opinion of value. (See appendix A, 24.103(a).)
(iii) A description of comparable
sales, including a description of all relevant physical, legal, and economic
factors such as parties to the transaction, source and method of financing,
and verification by a party involved in
the transaction.
(iv) A statement of the value of the
real property to be acquired and, for a
partial acquisition, a statement of the
value of the damages and benefits, if
any, to the remaining real property,
where appropriate.
(v) The effective date of valuation,
date of appraisal, signature, and certification of the appraiser.
(b) Influence of the project on just compensation. The appraiser shall disregard
any decrease or increase in the fair
market value of the real property
caused by the project for which the
property is to be acquired, or by the
likelihood that the property would be
acquired for the project, other than
that due to physical deterioration
within the reasonable control of the
owner. (See appendix A, 24.103(b).)
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24.105
lieved to be just compensation), accepted (meets all requirements, but not
selected as recommended or approved),
or not accepted. If authorized by the
Agency to do so, the staff review appraiser shall also approve the appraisal
(as the basis for the establishment of
the amount believed to be just compensation), and, if also authorized to do
so, develop and report the amount believed to be just compensation. (See appendix A, 24.104(a).)
(b) If the review appraiser is unable
to recommend (or approve) an appraisal as an adequate basis for the establishment of the offer of just compensation, and it is determined by the
acquiring Agency that it is not practical to obtain an additional appraisal,
the review appraiser may, as part of
the review, present and analyze market
information in conformance with
24.103 to support a recommended (or
approved) value. (See appendix A,
24.104(b).)
(c) The review appraiser shall prepare
a written report that identifies the appraisal reports reviewed and documents
the findings and conclusions arrived at
during the review of the appraisal(s).
Any damages or benefits to any remaining property shall be identified in
the review appraisers report. The review appraiser shall also prepare a
signed certification that states the parameters of the review. The certification shall state the approved value,
and, if the review appraiser is authorized to do so, the amount believed to be
just compensation for the acquisition.
(See appendix A, 24.104(c).)
24.105 Acquisition
improvements.
of
tenant-owned
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24.202 Applicability.
These requirements apply to the relocation of any displaced person as defined at 24.2(a)(9). Any person who
qualifies as a displaced person must be
fully informed of his or her rights and
entitlements to relocation assistance
and payments provided by the Uniform
Act and this regulation. (See appendix
A, 24.202.)
24.203 Relocation notices.
(a) General information notice. As soon
as feasible, a person scheduled to be
displaced shall be furnished with a general written description of the displacing Agencys relocation program
which does at least the following:
(1) Informs the person that he or she
may be displaced for the project and
generally describes the relocation payment(s) for which the person may be eligible, the basic conditions of eligibility, and the procedures for obtaining
the payment(s);
(2) Informs the displaced person that
he or she will be given reasonable relocation advisory services, including referrals to replacement properties, help
in filing payment claims, and other
necessary assistance to help the displaced person successfully relocate;
(3) Informs the displaced person that
he or she will not be required to move
without at least 90 days advance written notice (see paragraph (c) of this
section), and informs any person to be
displaced from a dwelling that he or
she cannot be required to move permanently unless at least one comparable
replacement dwelling has been made
available;
(4) Informs the displaced person that
any person who is an alien not lawfully
present in the United States is ineligible for relocation advisory services
and relocation payments, unless such
ineligibility would result in exceptional and extremely unusual hardship
to a qualifying spouse, parent, or child,
as defined in 24.208(h); and
(5) Describes the displaced persons
right to appeal the Agencys determination as to a persons application
for assistance for which a person may
be eligible under this part.
(b) Notice of relocation eligibility. Eligibility for relocation assistance shall
begin on the date of a notice of intent
24.203
to acquire (described in 24.203(d)), the
initiation of negotiations (defined in
24.2(a)(15)), or actual acquisition,
whichever occurs first. When this occurs, the Agency shall promptly notify
all occupants in writing of their eligibility for applicable relocation assistance.
(c) Ninety-day notice(1) General. No
lawful occupant shall be required to
move unless he or she has received at
least 90 days advance written notice of
the earliest date by which he or she
may be required to move.
(2) Timing of notice. The displacing
Agency may issue the notice 90 days or
earlier before it expects the person to
be displaced.
(3) Content of notice. The 90-day notice shall either state a specific date as
the earliest date by which the occupant
may be required to move, or state that
the occupant will receive a further notice indicating, at least 30 days in advance, the specific date by which he or
she must move. If the 90-day notice is
issued before a comparable replacement dwelling is made available, the
notice must state clearly that the occupant will not have to move earlier
than 90 days after such a dwelling is
made available. (See 24.204(a).)
(4) Urgent need. In unusual circumstances, an occupant may be required to vacate the property on less
than 90 days advance written notice if
the displacing Agency determines that
a 90-day notice is impracticable, such
as when the persons continued occupancy of the property would constitute
a substantial danger to health or safety. A copy of the Agencys determination shall be included in the applicable
case file.
(d) Notice of intent to acquire. A notice
of intent to acquire is a displacing
Agencys written communication that
is provided to a person to be displaced,
including those to be displaced by rehabilitation or demolition activities from
property acquired prior to the commitment of Federal financial assistance to
the activity, which clearly sets forth
that the Agency intends to acquire the
property. A notice of intent to acquire
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establishes eligibility for relocation assistance prior to the initiation of negotiations and/or prior to the commitment of Federal financial assistance.
(See 24.2(a)(9)(i)(A).)
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zations) displacements, the relocation
needs and preferences of each business
(farm and nonprofit organization) to be
displaced and explain the relocation
payments and other assistance for
which the business may be eligible, the
related eligibility requirements, and
the procedures for obtaining such assistance. This shall include a personal
interview with each business. At a minimum, interviews with displaced business owners and operators should include the following items:
(A) The businesss replacement site
requirements, current lease terms and
other contractual obligations and the
financial capacity of the business to
accomplish the move.
(B) Determination of the need for
outside specialists in accordance with
24.301(g)(12) that will be required to
assist in planning the move, assistance
in the actual move, and in the reinstallation of machinery and/or other
personal property.
(C) For businesses, an identification
and resolution of personalty/realty
issues. Every effort must be made to
identify and resolve realty/personalty
issues prior to, or at the time of, the
appraisal of the property.
(D) An estimate of the time required
for the business to vacate the site.
(E) An estimate of the anticipated
difficulty in locating a replacement
property.
(F) An identification of any advance
relocation payments required for the
move, and the Agencys legal capacity
to provide them.
(ii) Determine, for residential displacements, the relocation needs and
preferences of each person to be displaced and explain the relocation payments and other assistance for which
the person may be eligible, the related
eligibility requirements, and the procedures for obtaining such assistance.
This shall include a personal interview
with each residential displaced person.
(A) Provide current and continuing
information on the availability, purchase prices, and rental costs of comparable replacement dwellings, and explain that the person cannot be required to move unless at least one comparable replacement dwelling is made
available as set forth in 24.204(a).
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24.208
his or her rights or entitlements to relocation assistance and benefits provided by the Uniform Act and this regulation.
(g) Expenditure of payments. Payments, provided pursuant to this part,
shall not be considered to constitute
Federal financial assistance. Accordingly, this part does not apply to the
expenditure of such payments by, or
for, a displaced person.
24.208 Aliens not lawfully present in
the United States.
(a) Each person seeking relocation
payments or relocation advisory assistance shall, as a condition of eligibility,
certify:
(1) In the case of an individual, that
he or she is either a citizen or national
of the United States, or an alien who is
lawfully present in the United States.
(2) In the case of a family, that each
family member is either a citizen or
national of the United States, or an
alien who is lawfully present in the
United States. The certification may
be made by the head of the household
on behalf of other family members.
(3) In the case of an unincorporated
business, farm, or nonprofit organization, that each owner is either a citizen
or national of the United States, or an
alien who is lawfully present in the
United States. The certification may
be made by the principal owner, manager, or operating officer on behalf of
other persons with an ownership interest.
(4) In the case of an incorporated
business, farm, or nonprofit organization, that the corporation is authorized
to conduct business within the United
States.
(b) The certification provided pursuant to paragraphs (a)(1), (a)(2), and
(a)(3) of this section shall indicate
whether such person is either a citizen
or national of the United States, or an
alien who is lawfully present in the
United States. Requirements concerning the certification in addition to
those contained in this rule shall be
within the discretion of the Federal
funding Agency and, within those parameters, that of the displacing Agency.
(c) In computing relocation payments under the Uniform Act, if any
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24.301
a dwelling include the expenses described in paragraphs (g)(1) through
(g)(7) of this section. Self-moves based
on the lower of two bids or estimates
are not eligible for reimbursement
under this section.)
(1) Commercial movemoves performed by a professional mover.
(2) Self-movemoves that may be performed by the displaced person in one
or a combination of the following
methods:
(i) Fixed Residential Moving Cost
Schedule. (Described in 24.302.)
(ii) Actual cost move. Supported by
receipted bills for labor and equipment.
Hourly labor rates should not exceed
the cost paid by a commercial mover.
Equipment rental fees should be based
on the actual cost of renting the equipment but not exceed the cost paid by a
commercial mover.
(c) Moves from a mobile home. A displaced persons actual, reasonable and
necessary moving expenses for moving
personal property from a mobile home
may be determined based on the cost of
one, or a combination of the following
methods: (self-moves based on the
lower of two bids or estimates are not
eligible for reimbursement under this
section. Eligible expenses for moves
from a mobile home include those expenses described in paragraphs (g)(1)
through (g)(7) of this section. In addition to the items in paragraph (a) of
this section, the owner-occupant of a
mobile home that is moved as personal
property and used as the persons replacement dwelling, is also eligible for
the moving expenses described in paragraphs (g)(8) through (g)(10) of this section.)
(1) Commercial movemoves performed by a professional mover.
(2) Self-movemoves that may be performed by the displaced person in one
or a combination of the following
methods:
(i) Fixed Residential Moving Cost
Schedule. (Described in 24.302.)
(ii) Actual cost move. Supported by
receipted bills for labor and equipment.
Hourly labor rates should not exceed
the cost paid by a commercial mover.
Equipment rental fees should be based
on the actual cost of renting the equipment but not exceed the cost paid by a
commercial mover.
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24.301
not eligible, unless the Agency determines that relocation beyond 50 miles
is justified.
(2) Packing, crating, unpacking, and
uncrating of the personal property.
(3) Disconnecting, dismantling, removing, reassembling, and reinstalling
relocated household appliances and
other personal property. For businesses, farms or nonprofit organizations this includes machinery, equipment, substitute personal property,
and connections to utilities available
within the building; it also includes
modifications to the personal property,
including those mandated by Federal,
State or local law, code or ordinance,
necessary to adapt it to the replacement structure, the replacement site,
or the utilities at the replacement site,
and modifications necessary to adapt
the utilities at the replacement site to
the personal property.
(4) Storage of the personal property
for a period not to exceed 12 months,
unless the Agency determines that a
longer period is necessary.
(5) Insurance for the replacement
value of the property in connection
with the move and necessary storage.
(6) The replacement value of property
lost, stolen, or damaged in the process
of moving (not through the fault or
negligence of the displaced person, his
or her agent, or employee) where insurance covering such loss, theft, or damage is not reasonably available.
(7) Other moving-related expenses
that are not listed as ineligible under
24.301(h), as the Agency determines to
be reasonable and necessary.
(8) The reasonable cost of disassembling, moving, and reassembling any
appurtenances attached to a mobile
home, such as porches, decks, skirting,
and awnings, which were not acquired,
anchoring of the unit, and utility
hookup charges.
(9) The reasonable cost of repairs and/
or modifications so that a mobile home
can be moved and/or made decent, safe,
and sanitary.
(10) The cost of a nonrefundable mobile home park entrance fee, to the extent it does not exceed the fee at a
comparable mobile home park, if the
person is displaced from a mobile home
park or the Agency determines that
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24.301
placed person is entitled to payment of
the lesser of:
(i) The cost of the substitute item,
including installation costs of the replacement site, minus any proceeds
from the sale or trade-in of the replaced item; or
(ii) The estimated cost of moving and
reinstalling the replaced item but with
no allowance for storage. At the Agencys discretion, the estimated cost for a
low cost or uncomplicated move may
be based on a single bid or estimate.
(17) Searching for a replacement location. A business or farm operation is
entitled to reimbursement for actual
expenses, not to exceed $2,500, as the
Agency determines to be reasonable,
which are incurred in searching for a
replacement location, including:
(i) Transportation;
(ii) Meals and lodging away from
home;
(iii) Time spent searching, based on
reasonable salary or earnings;
(iv) Fees paid to a real estate agent
or broker to locate a replacement site,
exclusive of any fees or commissions
related to the purchase of such sites;
(v) Time spent in obtaining permits
and attending zoning hearings; and
(vi) Time spent negotiating the purchase of a replacement site based on a
reasonable salary or earnings.
(18) Low value/high bulk. When the
personal property to be moved is of low
value and high bulk, and the cost of
moving the property would be disproportionate to its value in the judgment of the displacing Agency, the allowable moving cost payment shall not
exceed the lesser of: The amount which
would be received if the property were
sold at the site or the replacement cost
of a comparable quantity delivered to
the new business location. Examples of
personal property covered by this provision include, but are not limited to,
stockpiled sand, gravel, minerals, metals and other similar items of personal
property as determined by the Agency.
(h) Ineligible moving and related expenses. A displaced person is not entitled to payment for:
(1) The cost of moving any structure
or other real property improvement in
which the displaced person reserved
ownership. (However, this part does not
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24.302
preclude
the
computation
under
24.401(c)(2)(iii));
(2) Interest on a loan to cover moving
expenses;
(3) Loss of goodwill;
(4) Loss of profits;
(5) Loss of trained employees;
(6) Any additional operating expenses
of a business or farm operation incurred because of operating in a new
location
except
as
provided
in
24.304(a)(6);
(7) Personal injury;
(8) Any legal fee or other cost for preparing a claim for a relocation payment or for representing the claimant
before the Agency;
(9) Expenses for searching for a replacement dwelling;
(10) Physical changes to the real
property at the replacement location of
a business or farm operation except as
provided in 24.301(g)(3) and 24.304(a);
(11) Costs for storage of personal
property on real property already
owned or leased by the displaced person, and
(12) Refundable security and utility
deposits.
(i) Notification and inspection (nonresidential). The Agency shall inform the
displaced person, in writing, of the requirements of this section as soon as
possible after the initiation of negotiations. This information may be included in the relocation information
provided the displaced person as set
forth in 24.203. To be eligible for payments under this section the displaced
person must:
(1) Provide the Agency reasonable advance notice of the approximate date
of the start of the move or disposition
of the personal property and an inventory of the items to be moved. However, the Agency may waive this notice
requirement after documenting its file
accordingly.
(2) Permit the Agency to make reasonable and timely inspections of the
personal property at both the displacement and replacement sites and to
monitor the move.
(j) Transfer of ownership (nonresidential). Upon request and in accordance
with applicable law, the claimant shall
transfer to the Agency ownership of
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24.305
ventory, or other items used in the
normal course of the business operation.
(3) Interest on money borrowed to
make the move or purchase the replacement property.
(4) Payment to a part-time business
in the home which does not contribute
materially (defined at 24.2(a)(7)) to
the household income.
24.305 Fixed payment for moving expensesnonresidential moves.
(a) Business. A displaced business
may be eligible to choose a fixed payment in lieu of the payments for actual
moving and related expenses, and actual reasonable reestablishment expenses provided by 24.301, 24.303 and
24.304. Such fixed payment, except for
payment to a nonprofit organization,
shall equal the average annual net
earnings of the business, as computed
in accordance with paragraph (e) of
this section, but not less than $1,000
nor more than $20,000. The displaced
business is eligible for the payment if
the Agency determines that:
(1) The business owns or rents personal property which must be moved in
connection with such displacement and
for which an expense would be incurred
in such move and, the business vacates
or relocates from its displacement site;
(2) The business cannot be relocated
without a substantial loss of its existing patronage (clientele or net earnings). A business is assumed to meet
this test unless the Agency determines
that it will not suffer a substantial loss
of its existing patronage;
(3) The business is not part of a commercial enterprise having more than
three other entities which are not
being acquired by the Agency, and
which are under the same ownership
and engaged in the same or similar
business activities.
(4) The business is not operated at a
displacement dwelling solely for the
purpose of renting such dwelling to
others;
(5) The business is not operated at
the displacement site solely for the
purpose of renting the site to others;
and
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24.306
(6) The business contributed materially to the income of the displaced person during the 2 taxable years prior to
displacement. (See 24.2(a)(7).)
(b) Determining the number of businesses. In determining whether two or
more displaced legal entities constitute a single business, which is entitled to only one fixed payment, all pertinent factors shall be considered, including the extent to which:
(1) The same premises and equipment
are shared;
(2) Substantially identical or interrelated business functions are carried
out and business and financial affairs
are commingled;
(3) The entities are held out to the
public, and to those customarily dealing with them, as one business; and
(4) The same person or closely related
persons own, control, or manage the affairs of the entities.
(c) Farm operation. A displaced farm
operation (defined at 24.2(a)(12)) may
choose a fixed payment, in lieu of the
payments for actual moving and related expenses and actual reasonable
reestablishment
expenses,
in
an
amount equal to its average annual net
earnings as computed in accordance
with paragraph (e) of this section, but
not less than $1,000 nor more than
$20,000. In the case of a partial acquisition of land, which was a farm operation before the acquisition, the fixed
payment shall be made only if the
Agency determines that:
(1) The acquisition of part of the land
caused the operator to be displaced
from the farm operation on the remaining land; or
(2) The partial acquisition caused a
substantial change in the nature of the
farm operation.
(d) Nonprofit organization. A displaced
nonprofit organization may choose a
fixed payment of $1,000 to $20,000, in
lieu of the payments for actual moving
and related expenses and actual reasonable reestablishment expenses, if the
Agency determines that it cannot be
relocated without a substantial loss of
existing patronage (membership or clientele). A nonprofit organization is assumed to meet this test, unless the
Agency demonstrates otherwise. Any
payment in excess of $1,000 must be
supported with financial statements
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24.401
than 180 days immediately prior to the
initiation of negotiations; and
(2) Purchases and occupies a decent,
safe, and sanitary replacement dwelling within one year after the later of
the following dates (except that the
Agency may extend such one year period for good cause):
(i) The date the displaced person receives final payment for the displacement dwelling or, in the case of condemnation, the date the full amount of
the estimate of just compensation is
deposited in the court; or
(ii) The date the displacing Agencys
obligation under 24.204 is met.
(b) Amount of payment. The replacement housing payment for an eligible
180-day homeowner-occupant may not
exceed $22,500. (See also 24.404.) The
payment under this subpart is limited
to the amount necessary to relocate to
a comparable replacement dwelling
within one year from the date the displaced homeowner-occupant is paid for
the displacement dwelling, or the date
a comparable replacement dwelling is
made available to such person, whichever is later. The payment shall be the
sum of:
(1) The amount by which the cost of
a replacement dwelling exceeds the acquisition cost of the displacement
dwelling, as determined in accordance
with paragraph (c) of this section;
(2) The increased interest costs and
other debt service costs which are incurred in connection with the mortgage(s) on the replacement dwelling, as
determined in accordance with paragraph (d) of this section; and
(3) The reasonable expenses incidental to the purchase of the replacement dwelling, as determined in accordance with paragraph (e) of this section.
(c) Price differential(1) Basic computation. The price differential to be
paid under paragraph (b)(1) of this section is the amount which must be
added to the acquisition cost of the displacement dwelling and site (see
24.2(a)(11)) to provide a total amount
equal to the lesser of:
(i) The reasonable cost of a comparable replacement dwelling as determined in accordance with 24.403(a); or
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24.402
section, or downpayment assistance, as
computed in accordance with paragraph (c) of this section, if such displaced person:
(1) Has actually and lawfully occupied the displacement dwelling for at
least 90 days immediately prior to the
initiation of negotiations; and
(2) Has rented, or purchased, and occupied a decent, safe, and sanitary replacement dwelling within 1 year (unless the Agency extends this period for
good cause) after:
(i) For a tenant, the date he or she
moves from the displacement dwelling;
or
(ii) For an owner-occupant, the later
of:
(A) The date he or she receives final
payment for the displacement dwelling, or in the case of condemnation,
the date the full amount of the estimate of just compensation is deposited
with the court; or
(B) The date he or she moves from
the displacement dwelling.
(b) Rental assistance payment(1)
Amount of payment. An eligible displaced person who rents a replacement
dwelling is entitled to a payment not
to exceed $5,250 for rental assistance.
(See 24.404.) Such payment shall be 42
times the amount obtained by subtracting the base monthly rental for
the displacement dwelling from the
lesser of:
(i) The monthly rent and estimated
average monthly cost of utilities for a
comparable replacement dwelling; or
(ii) The monthly rent and estimated
average monthly cost of utilities for
the decent, safe, and sanitary replacement dwelling actually occupied by the
displaced person.
(2) Base monthly rental for displacement dwelling. The base monthly rental
for the displacement dwelling is the
lesser of:
(i) The average monthly cost for rent
and utilities at the displacement dwelling for a reasonable period prior to displacement, as determined by the Agency (for an owner-occupant, use the fair
market rent for the displacement
dwelling. For a tenant who paid little
or no rent for the displacement dwelling, use the fair market rent, unless its
use would result in a hardship because
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24.403
(4) Constructs a dwelling on a site he
or she owns or purchases;
(5) Contracts for the purchase or construction of a dwelling on a site provided by a builder or on a site the person owns or purchases; or
(6) Currently owns a previously purchased dwelling and site, valuation of
which shall be on the basis of current
fair market value.
(d) Occupancy requirements for displacement or replacement dwelling. No
person shall be denied eligibility for a
replacement housing payment solely
because the person is unable to meet
the occupancy requirements set forth
in these regulations for a reason beyond his or her control, including:
(1) A disaster, an emergency, or an
imminent threat to the public health
or welfare, as determined by the President, the Federal Agency funding the
project, or the displacing Agency; or
(2) Another reason, such as a delay in
the construction of the replacement
dwelling, military duty, or hospital
stay, as determined by the Agency.
(e) Conversion of payment. A displaced
person who initially rents a replacement dwelling and receives a rental assistance payment under 24.402(b) is eligible to receive a payment under
24.401 or 24.402(c) if he or she meets
the eligibility criteria for such payments, including purchase and occupancy within the prescribed 1-year period. Any portion of the rental assistance payment that has been disbursed
shall be deducted from the payment
computed under 24.401 or 24.402(c).
(f) Payment after death. A replacement housing payment is personal to
the displaced person and upon his or
her death the undisbursed portion of
any such payment shall not be paid to
the heirs or assigns, except that:
(1) The amount attributable to the
displaced persons period of actual occupancy of the replacement housing
shall be paid.
(2) Any remaining payment shall be
disbursed to the remaining family
members of the displaced household in
any case in which a member of a displaced family dies.
(3) Any portion of a replacement
housing payment necessary to satisfy
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24.404
the legal obligation of an estate in connection with the selection of a replacement dwelling by or on behalf of a deceased person shall be disbursed to the
estate.
(g) Insurance proceeds. To the extent
necessary to avoid duplicate compensation, the amount of any insurance proceeds received by a person in connection with a loss to the displacement
dwelling due to a catastrophic occurrence (fire, flood, etc.) shall be included
in the acquisition cost of the displacement dwelling when computing the
price differential. (See 24.3.)
[70 FR 611, Jan. 4, 2005, as amended at 70 FR
22611, May 2, 2005]
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24.502
project, the occupant of the mobile
home shall be considered to be a displaced person who is entitled to relocation payments and other assistance
under this part.
24.502 Replacement housing payment
for 180-day mobile homeowner displaced from a mobile home, and/or
from the acquired mobile home site.
(a) Eligibility. An owner-occupant displaced from a mobile home or site is
entitled to a replacement housing payment, not to exceed $22,500, under
24.401 if:
(1) The person occupied the mobile
home on the displacement site for at
least 180 days immediately before:
(i) The initiation of negotiations to
acquire the mobile home, if the person
owned the mobile home and the mobile
home is real property;
(ii) The initiation of negotiations to
acquire the mobile home site if the mobile home is personal property, but the
person owns the mobile home site; or
(iii) The date of the Agencys written
notification to the owner-occupant
that the owner is determined to be displaced from the mobile home as described in paragraphs (a)(3)(i) through
(iv) of this section.
(2) The person meets the other basic
eligibility requirements at 24.401(a)(2);
and
(3) The Agency acquires the mobile
home as real estate, or acquires the
mobile home site from the displaced
owner, or the mobile home is personal
property but the owner is displaced
from the mobile home because the
Agency determines that the mobile
home:
(i) Is not, and cannot economically be
made decent, safe, and sanitary;
(ii) Cannot be relocated without substantial damage or unreasonable cost;
(iii) Cannot be relocated because
there is no available comparable replacement site; or
(iv) Cannot be relocated because it
does not meet mobile home park entrance requirements.
(b) Replacement housing payment computation for a 180-day owner that is displaced from a mobile home. The replacement housing payment for an eligible
displaced 180-day owner is computed as
described at 24.401(b) incorporating
the following, as applicable:
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24.503
Subpart GCertification
24.601
Purpose.
Certification application.
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This appendix provides additional information to explain the intent of certain provisions of this part.
SUBPART AGENERAL
Section 24.2 Definitions and Acronyms
Section 24.2(a)(6) Definition of comparable replacement dwelling. The requirement in
24.2(a)(6)(ii) that a comparable replacement
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under this part. (If a person accepts assistance under a government housing assistance
program, the rules of that program governing the size of the dwelling apply, and the
rental assistance payment under 24.402
would be computed on the basis of the persons actual out-of-pocket cost for the replacement housing.)
Section 24.2(a)(8)(ii) Decent, Safe and Sanitary. Many local housing and occupancy
codes require the abatement of deteriorating
paint, including lead-based paint and leadbased paint dust, in protecting the public
health and safety. Where such standards
exist, they must be honored. Even where
local law does not mandate adherence to
such standards, it is strongly recommended
that they be considered as a matter of public
policy.
Section 24.2(a)(8)(vii) Persons with a disability. Reasonable accommodation of a displaced person with a disability at the replacement dwelling means the Agency is required to address persons with a physical impairment that substantially limits one or
more of the major life activities. In these
situations,
reasonable
accommodation
should include the following at a minimum:
Doors of adequate width; ramps or other assistance devices to traverse stairs and access
bathtubs, shower stalls, toilets and sinks;
storage cabinets, vanities, sink and mirrors
at appropriate heights. Kitchen accommodations will include sinks and storage cabinets
built at appropriate heights for access. The
Agency shall also consider other items that
may be necessary, such as physical modification to a unit, based on the displaced persons needs.
Section 24.2(a)(9)(ii)(D) Persons not displaced.
Paragraph (a)(9)(ii)(D) of this section recognizes that there are circumstances where the
acquisition, rehabilitation or demolition of
real property takes place without the intent
or necessity that an occupant of the property be permanently displaced. Because such
occupants are not considered displaced persons under this part, great care must be exercised to ensure that they are treated fairly
and equitably. For example, if the tenant-occupant of a dwelling will not be displaced,
but is required to relocate temporarily in
connection with the project, the temporarily
occupied housing must be decent, safe, and
sanitary and the tenant must be reimbursed
for all reasonable out-of-pocket expenses incurred in connection with the temporary relocation. These expenses may include moving expenses and increased housing costs
during the temporary relocation. Temporary
relocation should not extend beyond one
year before the person is returned to his or
her previous unit or location. The Agency
must contact any residential tenant who has
been temporarily relocated for a period beyond one year and offer all permanent relocation assistance. This assistance would be
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Section 24.103(a)(2). All relevant and reliable approaches to value are to be used. However, where an Agency determines that the
sales comparison approach will be adequate
by itself and yield credible appraisal results
because of the type of property being appraised and the availability of sales data, it
may limit the appraisal assignment to the
sales comparison approach. This should be
reflected in the scope of work.
Section 24.103(b) Influence of the project on
just compensation. As used in this section, the
term project means an undertaking which
is planned, designed, and intended to operate
as a unit.
When the public is aware of the proposed
project, project area property values may be
affected. Therefore, property owners should
not be penalized because of a decrease in
value caused by the proposed project nor
reap a windfall at public expense because of
increased value created by the proposed
project.
Section 24.103(d)(1). The appraiser and review appraiser must each be qualified and
competent to perform the appraisal and appraisal review assignments, respectively.
Among other qualifications, State licensing
or certification and professional society designations can help provide an indication of
an appraisers abilities.
Section 24.104 Review of appraisals. The term
review appraiser is used rather than reviewing appraiser, to emphasize that review appraiser is a separate specialty and
not just an appraiser who happens to be reviewing an appraisal. Federal Agencies have
long held the perspective that appraisal review is a unique skill that, while it certainly
builds on appraisal skills, requires more. The
review appraiser should possess both appraisal technical abilities and the ability to
be the two-way bridge between the Agencys
real property valuation needs and the appraiser.
Agency review appraisers typically perform a role greater than technical appraisal
review. They are often involved in early
project development. Later they may be involved in devising the scope of work statements and participate in making appraisal
assignments to fee and/or staff appraisers.
They are also mentors and technical advisors, especially on Agency policy and requirements, to appraisers, both staff and fee.
Additionally, review appraisers are frequently technical advisors to other Agency
officials.
Section 24.104(a). This paragraph states that
the review appraiser is to review the appraisers presentation and analysis of market information and that it is to be reviewed
against 24.103 and other applicable requirements, including, to the extent appropriate,
the Uniform Appraisal Standards for Federal
Land Acquisition. The appraisal review is to
be a technical review by an appropriately
qualified review appraiser. The qualifications of the review appraiser and the level of
explanation of the basis for the review appraisers recommended (or approved) value
depend on the complexity of the appraisal
problem. If the initial appraisal submitted
for review is not acceptable, the review appraiser is to communicate and work with the
appraiser to the greatest extent possible to
facilitate the appraisers development of an
acceptable appraisal.
In doing this, the review appraiser is to remain in an advisory role, not directing the
appraisal, and retaining objectivity and options for the appraisal review itself.
If the Agency intends that the staff review
appraiser approve the appraisal (as the basis
for the establishment of the amount believed
to be just compensation), or establish the
amount the Agency believes is just compensation, she/he must be specifically authorized by the Agency to do so. If the review appraiser is not specifically authorized
to approve the appraisal (as the basis for the
establishment of the amount believed to be
just compensation), or establish the amount
believed to be just compensation, that authority remains with another Agency official.
Section 24.104(b). In developing an independent approved or recommended value, the
review appraiser may reference any acceptable resource, including acceptable parts of
any appraisal, including an otherwise unacceptable appraisal. When a review appraiser
develops an independent value, while retaining the appraisal review, that independent
value also becomes the approved appraisal of
the fair market value for Uniform Act Section 301(3) purposes. It is within Agency discretion to decide whether a second review is
needed if the first review appraiser establishes a value different from that in the appraisal report or reports on the property.
Section 24.104(c). Before acceptance of an
appraisal, the review appraiser must determine that the appraisers documentation, including valuation data and analysis of that
data, demonstrates the soundness of the appraisers opinion of value. For the purposes
of this part, an acceptable appraisal is any
appraisal that, on its own, meets the requirements of 24.103. An approved appraisal is
the one acceptable appraisal that is determined to best fulfill the requirement to be
the basis for the amount believed to be just
compensation. Recognizing that appraisal is
not an exact science, there may be more
than one acceptable appraisal of a property,
but for the purposes of this part, there can be
only one approved appraisal.
At the Agencys discretion, for a low value
property requiring only a simple appraisal
process, the review appraisers recommendation (or approval), endorsing the appraisers
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searching costs may be considered for reimbursement. These include those costs involved in investigating potential replacement sites and the time of the business
owner, based on salary or earnings, required
to apply for licenses or permits, zoning
changes, and attendance at zoning hearings.
Necessary attorney fees required to obtain
such licenses or permits are also reimbursable. Time spent in negotiating the purchase
of a replacement business site is also reimbursable based on a reasonable salary or
earnings rate. In those instances when such
additional costs to investigate and acquire
the site exceed $2,500, the displacing Agency
may consider waiver of the cost limitation
under the 24.7, waiver provision. Such a
waiver should be subject to the approval of
the Federal-funding Agency in accordance
with existing delegation authority.
Section 24.303(b) Professional Services. If a
question should arise as to what is a reasonable hourly rate, the Agency should
compare the rates of other similar professional providers in that area.
Section 24.305 Fixed Payment for Moving ExpensesNonresidential Moves.
Section 24.305(d) Nonprofit organization.
Gross revenues may include membership
fees, class fees, cash donations, tithes, receipts from sales or other forms of fund collection that enables the nonprofit organization to operate. Administrative expenses are
those for administrative support such as
rent, utilities, salaries, advertising, and
other like items as well as fundraising expenses. Operating expenses for carrying out
the purposes of the nonprofit organization
are not included in administrative expenses.
The monetary receipts and expense amounts
may be verified with certified financial
statements or financial documents required
by public Agencies.
Section 24.305(e) Average annual net earnings
of a business or farm operation. If the average
annual net earnings of the displaced business, farm, or nonprofit organization are determined to be less than $1,000, even $0 or a
negative amount, the minimum payment of
$1,000 shall be provided.
Section 24.306 Discretionary Utility Relocation Payments. Section 24.306(c) describes the
issues that the Agency and the utility facility owner must agree to in determining the
amount of the relocation payment. To facilitate and aid in reaching such agreement, the
practices in the Federal Highway Administration regulation, 23 CFR part 645, subpart
A, Utility Relocations, Adjustments and Reimbursement, should be followed.
SUBPART EREPLACEMENT HOUSING
PAYMENTS
Section 24.401 Replacement Housing Payment for 180-day Homeowner-Occupants.
Section 24.401(a)(2). An extension of eligibility may be granted if some event beyond
SAMPLE COMPUTATION
Old Mortgage:
Remaining Principal Balance ..........
Monthly Payment (principal and interest) ...........................................
Interest rate (percent) .....................
New Mortgage:
Interest rate (percent) .....................
Points ..............................................
Term (years) ....................................
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7
10
3
15
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$50,000.00
42,010.18
7,989.82
1,260.31
9,250.13
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such assistance is not sufficient to buy a replacement dwelling, the Agency may provide
additional purchase assistance or rental assistance.
Section 24.404(c) Methods of providing comparable replacement housing. This Section emphasizes the use of cost effective means of
providing comparable replacement housing.
The term reasonable cost is used to highlight the fact that while innovative means to
provide housing are encouraged, they should
be cost-effective. Section 24.404(c)(2) permits
the use of last resort housing, in special
cases, which may involve variations from the
usual methods of obtaining comparability.
However, such variation should never result
in a lowering of housing standards nor
should it ever result in a lower quality of living style for the displaced person. The physical characteristics of the comparable replacement dwelling may be dissimilar to
those of the displacement dwelling but they
may never be inferior.
One example might be the use of a new mobile home to replace a very substandard conventional dwelling in an area where comparable conventional dwellings are not available.
Another example could be the use of a superior, but smaller, decent, safe and sanitary
dwelling to replace a large, old substandard
dwelling, only a portion of which is being
used as living quarters by the occupants and
no other large comparable dwellings are
available in the area.
[70 FR 611, Jan. 4, 2005, as amended at 70 FR
22611, May 2, 2005]
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ER04JA05.004</GPH>
PART
25NONDISCRIMINATION
ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
Subpart AIntroduction
Sec.
25.100 Purpose and effective date.
25.105 Definitions.
25.110 Remedial and affirmative action and
self-evaluation.
25.115 Assurance required.
25.120 Transfers of property.
25.125 Effect of other requirements.
25.130 Effect of employment opportunities.
25.135 Designation of responsible employee
and adoption of grievance procedures.
25.140 Dissemination of policy.
Subpart BCoverage
25.200 Application.
25.205 Educational institutions and other
entities controlled by religious organizations.
25.210 Military and merchant marine educational institutions.
25.215 Membership practices of certain organizations.
25.220 Admissions.
25.225 Educational institutions eligible to
submit transition plans.
25.230 Transition plans.
25.235 Statutory amendments.
Admission.
Preference in admission.
Recruitment.
25.105
25.455
Subpart FProcedures
25.600
25.605
Subpart AIntroduction
25.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX of the
Education Amendments of 1972, as
amended (except sections 904 and 906 of
those Amendments) (20 U.S.C. 1681,
1682, 1683, 1685, 1686, 1687, 1688), which is
designed to eliminate (with certain exceptions) discrimination on the basis of
sex in any education program or activity receiving Federal financial assistance, whether or not such program or
activity is offered or sponsored by an
educational institution as defined in
these Title IX regulations. The effective date of these Title IX regulations
shall be September 29, 2000.
25.105 Definitions.
As used in these Title IX regulations,
the term:
Administratively separate unit means a
school, department, or college of an
educational institution (other than a
local educational agency) admission to
which is independent of admission to
any other component of such institution.
Admission means selection for parttime, full-time, special, associate,
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25.105
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25.115
activity, a recipient may take affirmative action consistent with law to overcome the effects of conditions that resulted in limited participation therein
by persons of a particular sex. Nothing
in these Title IX regulations shall be
interpreted to alter any affirmative action obligations that a recipient may
have under Executive Order 11246, 3
CFR, 19641965 Comp., p. 339; as amended by Executive Order 11375, 3 CFR,
19661970 Comp., p. 684; as amended by
Executive Order 11478, 3 CFR, 19661970
Comp., p. 803; as amended by Executive
Order 12086, 3 CFR, 1978 Comp., p. 230;
as amended by Executive Order 12107, 3
CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient
education institution shall, within one
year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX regulations, its
current policies and practices and the
effects thereof concerning admission of
students, treatment of students, and
employment of both academic and nonacademic personnel working in connection with the recipients education program or activity;
(2) Modify any of these policies and
practices that do not or may not meet
the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps
to eliminate the effects of any discrimination that resulted or may have
resulted from adherence to these policies and practices.
(d) Availability of self-evaluation and
related materials. Recipients shall maintain on file for at least three years following completion of the evaluation required under paragraph (c) of this section, and shall provide to the designated agency official upon request, a
description of any modifications made
pursuant to paragraph (c)(2) of this section and of any remedial steps taken
pursuant to paragraph (c)(3) of this section.
25.115 Assurance required.
(a) General. Either at the application
stage or the award stage, Federal agencies must ensure that applications for
Federal financial assistance or awards
of Federal financial assistance contain,
be accompanied by, or be covered by a
specifically identified assurance from
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25.120
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25.140
the protections against discrimination
assured them by Title IX and these
Title IX regulations, but shall state at
least that the requirement not to discriminate in education programs or activities extends to employment therein, and to admission thereto unless
25.300 through 25.310 do not apply to
the recipient, and that inquiries concerning the application of Title IX and
these Title IX regulations to such recipient may be referred to the employee designated pursuant to 25.135,
or to the designated agency official.
(2) Each recipient shall make the initial notification required by paragraph
(a)(1) of this section within 90 days of
September 29, 2000 or of the date these
Title IX regulations first apply to such
recipient, whichever comes later,
which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by student,
alumnae, or alumni groups for or in
connection with such recipient; and
(ii) Memoranda or other written communications distributed to every student and employee of such recipient.
(b) Publications. (1) Each recipient
shall prominently include a statement
of the policy described in paragraph (a)
of this section in each announcement,
bulletin, catalog, or application form
that it makes available to any person
of a type, described in paragraph (a) of
this section, or which is otherwise used
in connection with the recruitment of
students or employees.
(2) A recipient shall not use or distribute a publication of the type described in paragraph (b)(1) of this section that suggests, by text or illustration, that such recipient treats applicants, students, or employees differently on the basis of sex except as
such treatment is permitted by these
Title IX regulations.
(c) Distribution. Each recipient shall
distribute without discrimination on
the basis of sex each publication described in paragraph (b)(1) of this section, and shall apprise each of its admission and employment recruitment
representatives of the policy of nondiscrimination described in paragraph
(a) of this section, and shall require
such representatives to adhere to such
policy.
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25.200
Subpart BCoverage
25.200 Application.
Except as provided in 25.205
through 25.235(a), these Title IX regulations apply to every recipient and to
each education program or activity operated by such recipient that receives
Federal financial assistance.
25.205 Educational institutions and
other entities controlled by religious organizations.
(a) Exemption. These Title IX regulations do not apply to any operation of
an educational institution or other entity that is controlled by a religious
organization to the extent that application of these Title IX regulations
would not be consistent with the religious tenets of such organization.
(b) Exemption claims. An educational
institution or other entity that wishes
to claim the exemption set forth in
paragraph (a) of this section shall do so
by submitting in writing to the designated agency official a statement by
the highest-ranking official of the institution, identifying the provisions of
these Title IX regulations that conflict
with a specific tenet of the religious organization.
the Young Womens Christian Association (YWCA), the Girl Scouts, the Boy
Scouts, and Camp Fire Girls.
(c) Voluntary youth service organizations. These Title IX regulations do not
apply to the membership practices of a
voluntary youth service organization
that is exempt from taxation under
section 501(a) of the Internal Revenue
Code of 1954, 26 U.S.C. 501(a), and the
membership of which has been traditionally limited to members of one sex
and principally to persons of less than
nineteen years of age.
25.220
Admissions.
(a) Admissions to educational institutions prior to June 24, 1973, are not
covered by these Title IX regulations.
(b) Administratively separate units. For
the purposes only of this section,
25.225 and 25.230, and 25.300 through
25.310, each administratively separate
unit shall be deemed to be an educational institution.
(c) Application of 25.300 through .310.
Except as provided in paragraphs (d)
and (e) of this section, 25.300 through
25.310 apply to each recipient. A recipient to which 25.300 through 25.310
apply shall not discriminate on the
basis of sex in admission or recruitment in violation of 25.300 through
25.310.
(d) Educational institutions. Except as
provided in paragraph (e) of this section as to recipients that are educational institutions, 25.300 through
25.310 apply only to institutions of vocational education, professional education, graduate higher education, and
public institutions of undergraduate
higher education.
(e) Public institutions of undergraduate
higher education. 25.300 through 25.310
do not apply to any public institution
of undergraduate higher education that
traditionally and continually from its
establishment has had a policy of admitting students of only one sex.
25.225 Educational institutions eligible to submit transition plans.
(a) Application. This section applies
to each educational institution to
which 25.300 through 25.310 apply
that:
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25.235
class during the period covered by the
plan.
(c) Nondiscrimination. No policy or
practice of a recipient to which 25.225
applies shall result in treatment of applicants to or students of such recipient in violation of 25.300 through
25.310 unless such treatment is necessitated by an obstacle identified in
paragraph (b)(3) of this section and a
schedule for eliminating that obstacle
has been provided as required by paragraph (b)(4) of this section.
(d) Effects of past exclusion. To overcome the effects of past exclusion of
students on the basis of sex, each educational institution to which 25.225
applies shall include in its transition
plan, and shall implement, specific
steps designed to encourage individuals
of the previously excluded sex to apply
for admission to such institution. Such
steps shall include instituting recruitment programs that emphasize the institutions commitment to enrolling
students of the sex previously excluded.
25.235
Statutory amendments.
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25.300
(2)(i) Program or activity does not include any operation of an entity that is
controlled by a religious organization
if the application of 20 U.S.C. 1681 to
such operation would not be consistent
with the religious tenets of such organization.
(ii) For example, all of the operations
of a college, university, or other postsecondary institution, including but
not limited to traditional educational
operations, faculty and student housing, campus shuttle bus service, campus restaurants, the bookstore, and
other commercial activities are part of
a program or activity subject to
these Title IX regulations if the college, university, or other institution
receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to require or
prohibit any person, or public or private entity, to provide or pay for any
benefit or service, including the use of
facilities, related to an abortion. Medical procedures, benefits, services, and
the use of facilities, necessary to save
the life of a pregnant woman or to address complications related to an abortion are not subject to this section.
(2) Nothing in this section shall be
construed to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion. Accordingly, subject to paragraph (d)(1) of
this section, no person shall be excluded from participation in, be denied
the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational
training, employment, or other educational program or activity operated
by a recipient that receives Federal financial assistance because such individual has sought or received, or is
seeking, a legal abortion, or any benefit or service related to a legal abortion.
Admission.
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25.400
A recipient may make pre-admission
inquiry as to the sex of an applicant for
admission, but only if such inquiry is
made equally of such applicants of both
sexes and if the results of such inquiry
are not used in connection with discrimination prohibited by these Title
IX regulations.
25.305 Preference in admission.
A recipient to which 25.300 through
25.310 apply shall not give preference to
applicants for admission, on the basis
of attendance at any educational institution or other school or entity that
admits as students only or predominantly members of one sex, if the giving of such preference has the effect of
discriminating on the basis of sex in
violation of 25.300 through 25.310.
25.310 Recruitment.
(a) Nondiscriminatory recruitment. A
recipient to which 25.300 through
25.310 apply shall not discriminate on
the basis of sex in the recruitment and
admission of students. A recipient may
be required to undertake additional recruitment efforts for one sex as remedial action pursuant to 25.110(a), and
may choose to undertake such efforts
as affirmative action pursuant to
25.110(b).
(b) Recruitment at certain institutions.
A recipient to which 25.300 through
25.310 apply shall not recruit primarily
or exclusively at educational institutions, schools, or entities that admit as
students only or predominantly members of one sex, if such actions have the
effect of discriminating on the basis of
sex in violation of 25.300 through
25.310.
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25.405
tration of such scholarships, fellowships, or other awards that are restricted to members of one sex provides, or otherwise makes available,
reasonable opportunities for similar
studies for members of the other sex.
Such opportunities may be derived
from either domestic or foreign
sources.
(d) Aids, benefits or services not provided by recipient. (1) This paragraph (d)
applies to any recipient that requires
participation by any applicant, student, or employee in any education
program or activity not operated wholly by such recipient, or that facilitates,
permits, or considers such participation as part of or equivalent to an education program or activity operated by
such recipient, including participation
in educational consortia and cooperative employment and student-teaching
assignments.
(2) Such recipient:
(i) Shall develop and implement a
procedure designed to assure itself that
the operator or sponsor of such other
education program or activity takes no
action affecting any applicant, student,
or employee of such recipient that
these Title IX regulations would prohibit such recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such participation if
such action occurs.
25.405
Housing.
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Comparable facilities.
A recipient may provide separate toilet, locker room, and shower facilities
on the basis of sex, but such facilities
provided for students of one sex shall
be comparable to such facilities provided for students of the other sex.
25.415
25.425
(2) This section does not prohibit
grouping of students in physical education classes and activities by ability
as assessed by objective standards of
individual performance developed and
applied without regard to sex.
(3) This section does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing,
rugby, ice hockey, football, basketball,
and other sports the purpose or major
activity of which involves bodily contact.
(4) Where use of a single standard of
measuring skill or progress in a physical education class has an adverse effect on members of one sex, the recipient shall use appropriate standards
that do not have such effect.
(5) Portions of classes in elementary
and secondary schools, or portions of
education programs or activities, that
deal exclusively with human sexuality
may be conducted in separate sessions
for boys and girls.
(6) Recipients may make requirements based on vocal range or quality
that may result in a chorus or choruses
of one or predominantly one sex.
25.420 Access to schools operated by
LEAs.
A recipient that is a local educational agency shall not, on the basis
of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such recipient; or
(b) Any other school or educational
unit operated by such recipient, unless
such recipient otherwise makes available to such person, pursuant to the
same policies and criteria of admission,
courses, services, and facilities comparable to each course, service, and facility offered in or through such
schools.
25.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not
discriminate against any person on the
basis of sex in the counseling or guidance of students or applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses testing or
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25.430
other materials for appraising or counseling students shall not use different
materials for students on the basis of
their sex or use materials that permit
or require different treatment of students on such basis unless such different materials cover the same occupations and interest areas and the use
of such different materials is shown to
be essential to eliminate sex bias. Recipients shall develop and use internal
procedures for ensuring that such materials do not discriminate on the basis
of sex. Where the use of a counseling
test or other instrument results in a
substantially disproportionate number
of members of one sex in any particular
course of study or classification, the
recipient shall take such action as is
necessary to assure itself that such disproportion is not the result of discrimination in the instrument or its application.
(c) Disproportion in classes. Where a
recipient finds that a particular class
contains a substantially disproportionate number of individuals of one
sex, the recipient shall take such action as is necessary to assure itself
that such disproportion is not the result of discrimination on the basis of
sex in counseling or appraisal materials or by counselors.
25.430
Financial assistance.
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25.450
physician that the student is physically and emotionally able to continue
participation as long as such a certification is required of all students for
other physical or emotional conditions
requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or activity separately for pregnant students,
admittance to which is completely voluntary on the part of the student as
provided in paragraph (b)(1) of this section, shall ensure that the separate
portion is comparable to that offered
to non-pregnant students.
(4) Subject to 25.235(d), a recipient
shall treat pregnancy, childbirth, false
pregnancy, termination of pregnancy
and recovery therefrom in the same
manner and under the same policies as
any other temporary disability with respect to any medical or hospital benefit, service, plan, or policy that such
recipient administers, operates, offers,
or participates in with respect to students admitted to the recipients educational program or activity.
(5) In the case of a recipient that does
not maintain a leave policy for its students, or in the case of a student who
does not otherwise qualify for leave
under such a policy, a recipient shall
treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and
recovery therefrom as a justification
for a leave of absence for as long a period of time as is deemed medically
necessary by the students physician,
at the conclusion of which the student
shall be reinstated to the status that
she held when the leave began.
25.450 Athletics.
(a) General. No person shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, be
treated differently from another person, or otherwise be discriminated
against in any interscholastic, intercollegiate, club, or intramural athletics offered by a recipient, and no recipient shall provide any such athletics
separately on such basis.
(b) Separate teams. Notwithstanding
the requirements of paragraph (a) of
this section, a recipient may operate or
sponsor separate teams for members of
each sex where selection for such
teams is based upon competitive skill
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25.455
Employment.
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25.520
(a) Use of such test or other criterion
is shown to predict validly successful
performance in the position in question; and
(b) Alternative tests or criteria for
such purpose, which do not have such
disproportionately adverse effect, are
shown to be unavailable.
25.510 Recruitment.
(a) Nondiscriminatory recruitment and
hiring. A recipient shall not discriminate on the basis of sex in the recruitment and hiring of employees. Where a
recipient has been found to be presently discriminating on the basis of sex
in the recruitment or hiring of employees, or has been found to have so discriminated in the past, the recipient
shall recruit members of the sex so discriminated against so as to overcome
the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient
shall not recruit primarily or exclusively at entities that furnish as applicants only or predominantly members
of one sex if such actions have the effect of discriminating on the basis of
sex in violation of 25.500 through
25.550.
25.515 Compensation.
A recipient shall not make or enforce
any policy or practice that, on the
basis of sex:
(a) Makes distinctions in rates of pay
or other compensation;
(b) Results in the payment of wages
to employees of one sex at a rate less
than that paid to employees of the opposite sex for equal work on jobs the
performance of which requires equal
skill, effort, and responsibility, and
that are performed under similar working conditions.
25.520 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males
or for females;
(b) Maintain or establish separate
lines of progression, seniority lists, career ladders, or tenure systems based
on sex; or
(c) Maintain or establish separate
lines of progression, seniority systems,
career ladders, or tenure systems for
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25.525
Fringe benefits.
25.530
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Pre-employment inquiries.
Subpart FProcedures
25.600
Pt. 26
Title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d) (Title VI) are hereby
adopted and applied to these Title IX
regulations. These procedures may be
found at 49 CFR part 21.
[65 FR 52895, Aug. 30, 2000]
Enforcement procedures.
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26.1
Subpart AGeneral
26.1 What are the objectives of this
part?
This part seeks to achieve several objectives:
(a) To ensure nondiscrimination in
the award and administration of DOTassisted contracts in the Departments
highway, transit, and airport financial
assistance programs;
(b) To create a level playing field on
which DBEs can compete fairly for
DOT-assisted contracts;
(c) To ensure that the Departments
DBE program is narrowly tailored in
accordance with applicable law;
(d) To ensure that only firms that
fully meet this parts eligibility standards are permitted to participate as
DBEs;
(e) To help remove barriers to the
participation of DBEs in DOT-assisted
contracts;
(f) To assist the development of firms
that can compete successfully in the
marketplace outside the DBE program;
and
(g) To provide appropriate flexibility
to recipients of Federal financial assistance in establishing and providing
opportunities for DBEs.
26.3 To whom does this part apply?
(a) If you are a recipient of any of the
following types of funds, this part applies to you:
(1) Federal-aid highway funds authorized under Titles I (other than Part B)
and V of the Intermodal Surface Transportation Efficiency Act of 1991
(ISTEA), Pub. L. 102240, 105 Stat. 1914,
or Titles I, III, and V of the Transportation Equity Act for the 21st Century
(TEA21), Pub. L. 105178, 112 Stat. 107.
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26.5
their father or mother is regarded as
an Alaska Native.
Alaska Native Corporation (ANC)
means any Regional Corporation, Village Corporation, Urban Corporation,
or Group Corporation organized under
the laws of the State of Alaska in accordance with the Alaska Native
Claims Settlement Act, as amended (43
U.S.C. 1601, et seq.).
Compliance means that a recipient
has correctly implemented the requirements of this part.
Contract means a legally binding relationship obligating a seller to furnish
supplies or services (including, but not
limited to, construction and professional services) and the buyer to pay
for them. For purposes of this part, a
lease is considered to be a contract.
Contractor means one who participates, through a contract or subcontract (at any tier), in a DOT-assisted highway, transit, or airport program.
Department or DOT means the U.S.
Department of Transportation, including the Office of the Secretary, the
Federal
Highway
Administration
(FHWA), the Federal Transit Administration (FTA), and the Federal Aviation Administration (FAA).
Disadvantaged business enterprise or
DBE means a for-profit small business
concern
(1) That is at least 51 percent owned
by one or more individuals who are
both socially and economically disadvantaged or, in the case of a corporation, in which 51 percent of the stock is
owned by one or more such individuals;
and
(2) Whose management and daily
business operations are controlled by
one or more of the socially and economically disadvantaged individuals
who own it.
DOT-assisted contract means any contract between a recipient and a contractor (at any tier) funded in whole or
in part with DOT financial assistance,
including letters of credit or loan guarantees, except a contract solely for the
purchase of land.
DOT/SBA Memorandum of Understanding or MOU, refers to the agreement signed on November 23, 1999, between the Department of Transportation (DOT) and the Small Business
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26.7
Portuguese culture or origin, regardless of race;
(iii) Native Americans, which includes persons who are American Indians, Eskimos, Aleuts, or Native Hawaiians;
(iv)
Asian-Pacific
Americans,
which includes persons whose origins
are from Japan, China, Taiwan, Korea,
Burma (Myanmar), Vietnam, Laos,
Cambodia (Kampuchea), Thailand, Malaysia, Indonesia, the Philippines,
Brunei, Samoa, Guam, the U.S. Trust
Territories of the Pacific Islands (Republic of Palau), the Commonwealth of
the Northern Marianas Islands, Macao,
Fiji, Tonga, Kiribati, Juvalu, Nauru,
Federated States of Micronesia, or
Hong Kong;
(v) Subcontinent Asian Americans,
which includes persons whose origins
are from India, Pakistan, Bangladesh,
Bhutan, the Maldives Islands, Nepal or
Sri Lanka;
(vi) Women;
(vii) Any additional groups whose
members are designated as socially and
economically disadvantaged by the
SBA, at such time as the SBA designation becomes effective.
Tribally-owned concern means any
concern at least 51 percent owned by an
Indian tribe as defined in this section.
You refers to a recipient, unless a
statement in the text of this part or
the context requires otherwise (i.e.,
You must do XYZ means that recipients must do XYZ).
[64 FR 5126, Feb. 2, 1999, as amended at 64 FR
34570, June 28, 1999; 68 FR 35553, June 16, 2003;
76 FR 5096, Jan. 28, 2011]
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26.9
(a) Each financial assistance agreement you sign with a DOT operating
administration (or a primary recipient)
must include the following assurance:
The recipient shall not discriminate on the
basis of race, color, national origin, or sex in
the award and performance of any DOT-assisted contract or in the administration of
its DBE program or the requirements of 49
CFR part 26. The recipient shall take all necessary and reasonable steps under 49 CFR
part 26 to ensure nondiscrimination in the
award and administration of DOT-assisted
contracts. The recipients DBE program, as
required by 49 CFR part 26 and as approved
by DOT, is incorporated by reference in this
agreement. Implementation of this program
is a legal obligation and failure to carry out
its terms shall be treated as a violation of
this agreement. Upon notification to the recipient of its failure to carry out its approved program, the Department may impose sanctions as provided for under part 26
and may, in appropriate cases, refer the matter for enforcement under 18 U.S.C. 1001 and/
or the Program Fraud Civil Remedies Act of
1986 (31 U.S.C. 3801 et seq.).
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The contractor, sub recipient or subcontractor shall not discriminate on the basis of
race, color, national origin, or sex in the performance of this contract. The contractor
shall carry out applicable requirements of 49
CFR part 26 in the award and administration
of DOT-assisted contracts. Failure by the
contractor to carry out these requirements
is a material breach of this contract, which
may result in the termination of this contract or such other remedy as the recipient
deems appropriate.
26.15
public participation in developing your
proposal, including consultation with
the DBE community and at least one
public hearing. Your application must
include a summary of the public participation process and the information
gathered through it.
(2) Your application must show
that
(i) There is a reasonable basis to conclude that you could achieve a level of
DBE participation consistent with the
objectives of this part using different
or innovative means other than those
that are provided in subpart B or C of
this part;
(ii) Conditions in your jurisdiction
are appropriate for implementing the
proposal;
(iii) Your proposal would prevent discrimination against any individual or
group in access to contracting opportunities or other benefits of the program;
and
(iv) Your proposal is consistent with
applicable law and program requirements of the concerned operating administrations financial assistance program.
(3) The Secretary has the authority
to approve your application. If the Secretary grants your application, you
may administer your DBE program as
provided in your proposal, subject to
the following conditions:
(i) DBE eligibility is determined as
provided in subparts D and E of this
part, and DBE participation is counted
as provided in 26.49;
(ii) Your level of DBE participation
continues to be consistent with the objectives of this part;
(iii) There is a reasonable limitation
on the duration of your modified program; and
(iv) Any other conditions the Secretary makes on the grant of the waiver.
(4) The Secretary may end a program
waiver at any time and require you to
comply with this parts provisions. The
Secretary may also extend the waiver,
if he or she determines that all requirements of paragraphs (b)(2) and (3) of
this section continue to be met. Any
such extension shall be for no longer
than period originally set for the duration of the program.
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26.21
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26.33
other contractors are fully and promptly paid.
[68 FR 35553, June 16, 2003]
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26.35
26.37 What are a recipients responsibilities for monitoring the performance of other program participants?
(a) You must implement appropriate
mechanisms to ensure compliance with
the parts requirements by all program
participants (e.g., applying legal and
contract remedies available under Federal, state and local law). You must set
forth these mechanisms in your DBE
program.
(b) Your DBE program must also include a monitoring and enforcement
mechanism to ensure that work committed to DBEs at contract award or
subsequently (e.g., as the result of
modification to the contract) is actually performed by the DBEs to which
the work was committed. This mechanism must include a written certification that you have reviewed contracting records and monitored work
sites in your state for this purpose. The
monitoring to which this paragraph refers may be conducted in conjunction
with monitoring of contract performance for other purposes (e.g., close-out
reviews for a contract).
(c) This mechanism must provide for
a running tally of actual DBE attainments (e.g., payments actually made to
DBE firms), including a means of comparing these attainments to commitments. In your reports of DBE participation to the Department, you must
display both commitments and attainments.
[64 FR 5126, Feb. 2, 1999, as amended at 65 FR
68951, Nov. 15, 2000; 68 FR 35554, June 16, 2003;
76 FR 5097, Jan. 28, 2011]
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26.41 What is the role of the statutory 10 percent goal in this program?
(a) The statutes authorizing this program provide that, except to the extent
the Secretary determines otherwise,
not less than 10 percent of the authorized funds are to be expended with
DBEs.
(b) This 10 percent goal is an aspirational goal at the national level, which
the Department uses as a tool in evaluating and monitoring DBEs opportuni-
26.45
ties to participate in DOT-assisted contracts.
(c) The national 10 percent goal does
not authorize or require recipients to
set overall or contract goals at the 10
percent level, or any other particular
level, or to take any special administrative steps if their goals are above or
below 10 percent.
26.43 Can recipients use set-asides or
quotas as part of this program?
(a) You are not permitted to use
quotas for DBEs on DOT-assisted contracts subject to this part.
(b) You may not set-aside contracts
for DBEs on DOT-assisted contracts
subject to this part, except that, in
limited and extreme circumstances,
you may use set-asides when no other
method could be reasonably expected
to redress egregious instances of discrimination.
26.45 How do recipients set overall
goals?
(a)(1) Except as provided in paragraph (a)(2) of this section, you must
set an overall goal for DBE participation in your DOT-assisted contracts.
(2) If you are a FTA or FAA recipient
who reasonably anticipates awarding
(excluding transit vehicle purchases)
$250,000 or less in FTA or FAA funds in
prime contracts in a Federal fiscal
year, you are not required to develop
overall goals for FTA or FAA respectively for that fiscal year. However, if
you have an existing DBE program, it
must remain in effect and you must
seek to fulfill the objectives outlined
in 26.1.
(b) Your overall goal must be based
on demonstrable evidence of the availability of ready, willing and able DBEs
relative to all businesses ready, willing
and able to participate on your DOTassisted contracts (hereafter, the relative availability of DBEs). The goal
must reflect your determination of the
level of DBE participation you would
expect absent the effects of discrimination. You cannot simply rely on either
the 10 percent national goal, your previous overall goal or past DBE participation rates in your program without
reference to the relative availability of
DBEs in your market.
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26.45
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26.45
(iv) While you are required to submit
an overall goal to FHWA, FTA, or FAA
only every three years, the overall goal
and the provisions of Sec. 26.47(c) apply
to each year during that three-year period.
(v) You may make, for informational
purposes, projections of your expected
DBE achievements during each of the
three years covered by your overall
goal. However, it is the overall goal
itself, and not these informational projections, to which the provisions of section 26.47(c) of this part apply.
(2) If you are a recipient and set your
overall goal on a project or grant basis
as provided in paragraph (e)(3) of this
section, you must submit the goal for
review at a time determined by the
FHWA, FTA or FAA Administrator, as
applicable.
(3) You must include with your overall goal submission a description of the
methodology you used to establish the
goal, incuding your base figure and the
evidence with which it was calculated,
and the adjustments you made to the
base figure and the evidence you relied
on for the adjustments. You should
also include a summary listing of the
relevant available evidence in your jurisdiction and, where applicable, an explanation of why you did not use that
evidence to adjust your base figure.
You must also include your projection
of the portions of the overall goal you
expect to meet through race-neutral
and race-consioous measures, respectively (see 26.51(c)).
(4) You are not required to obtain
prior operating administration concurrence with your overall goal. However,
if the operating administrations review suggests that your overall goal
has not been correctly calculated, or
that your method for calculating goals
is inadequate, the operating administration may, after consulting with you,
adjust your overall goal or require that
you do so. The adjusted overall goal is
binding on you.
(5) If you need additional time to collect data or take other steps to develop
an approach to setting overall goals,
you may request the approval of the
concerned operating administration for
an interim goal and/or goal-setting
mechanism. Such a mechanism must:
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26.47
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26.49 How are overall goals established for transit vehicle manufacturers?
(a) If you are an FTA recipient, you
must require in your DBE program
that each transit vehicle manufacturer, as a condition of being authorized to bid or propose on FTA-assisted
transit vehicle procurements, certify
that it has complied with the requirements of this section. You do not include FTA assistance used in transit
vehicle procurements in the base
26.51
amount from which your overall goal is
calculated.
(b) If you are a transit vehicle manufacturer, you must establish and submit for FTAs approval an annual overall percentage goal. In setting your
overall goal, you should be guided, to
the extent applicable, by the principles
underlying 26.45. The base from which
you calculate this goal is the amount
of FTA financial assistance included in
transit vehicle contracts you will perform during the fiscal year in question.
You must exclude from this base funds
attributable to work performed outside
the United States and its territories,
possessions, and commonwealths. The
requirements and procedures of this
part with respect to submission and approval of overall goals apply to you as
they do to recipients.
(c) As a transit vehicle manufacturer,
you may make the certification required by this section if you have submitted the goal this section requires
and FTA has approved it or not disapproved it.
(d) As a recipient, you may, with
FTA approval, establish project-specific goals for DBE participation in the
procurement of transit vehicles in lieu
of complying through the procedures of
this section.
(e) If you are an FHWA or FAA recipient, you may, with FHWA or FAA
approval, use the procedures of this
section with respect to procurements
of vehicles or specialized equipment. If
you choose to do so, then the manufacturers of this equipment must meet the
same requirements (including goal approval by FHWA or FAA) as transit vehicle manufacturers must meet in
FTA-assisted procurements.
26.51 What means do recipients use
to meet overall goals?
(a) You must meet the maximum feasible portion of your overall goal by
using race-neutral means of facilitating DBE participation. Race-neutral
DBE participation includes any time a
DBE wins a prime contract through
customary competitive procurement
procedures, is awarded a subcontract
on a prime contract that does not
carry a DBE goal, or even if there is a
DBE goal, wins a subcontract from a
prime contractor that did not consider
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26.51
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26.51
amount of your goal you can meet
using such means in the next year. You
do not set contract goals on any contracts in the next year. You continue
using only race-neutral means to meet
your overall goals unless and until you
do not meet your overall goal for a
year.
Example to paragraph (f)(3): Your overall
goal for Years I and Year II is 10 percent. The
DBE participation you obtain through raceneutral measures alone is 10 percent or more
in each year. (For this purpose, it does not
matter whether you obtained additional DBE
participation through using contract goals
in these years.) In Year III and following
years, you do not need to make a projection
under paragraph (c) of this section of the
portion of your overall goal you expect to
meet using race-neutral means. You simply
use race-neutral means to achieve your overall goals. However, if in Year VI your DBE
participation falls short of your overall goal,
then you must make a paragraph (c) projection for Year VII and, if necessary, resume
use of contract goals in that year.
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26.53
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26.53
parts 180, 215 and 1,200 or applicable
state law;
(vii) You have determined that the
listed DBE subcontractor is not a responsible contractor;
(vi) The listed DBE subcontractor
voluntarily withdraws from the project
and provides to you written notice of
its withdrawal;
(vii) The listed DBE is ineligible to
receive DBE credit for the type of work
required;
(viii) A DBE owner dies or becomes
disabled with the result that the listed
DBE contractor is unable to complete
its work on the contract;
(ix) Other documented good cause
that you determine compels the termination of the DBE subcontractor. Provided, that good cause does not exist if
the prime contractor seeks to terminate a DBE it relied upon to obtain the
contract so that the prime contractor
can self-perform the work for which
the DBE contractor was engaged or so
that the prime contractor can substitute another DBE or non-DBE contractor after contract award.
(4) Before transmitting to you its request to terminate and/or substitute a
DBE subcontractor, the prime contractor must give notice in writing to
the DBE subcontractor, with a copy to
you, of its intent to request to terminate and/or substitute, and the reason
for the request.
(5) The prime contractor must give
the DBE five days to respond to the
prime contractors notice and advise
you and the contractor of the reasons,
if any, why it objects to the proposed
termination of its subcontract and why
you should not approve the prime contractors action. If required in a particular case as a matter of public necessity (e.g., safety), you may provide a
response period shorter than five days.
(6) In addition to post-award terminations, the provisions of this section
apply to preaward deletions of or substitutions for DBE firms put forward
by offerors in negotiated procurements.
(g) When a DBE subcontractor is terminated, or fails to complete its work
on the contract for any reason, you
must require the prime contractor to
make good faith efforts to find another
DBE subcontractor to substitute for
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26.55
the original DBE. These good faith efforts shall be directed at finding another DBE to perform at least the same
amount of work under the contract as
the DBE that was terminated, to the
extent needed to meet the contract
goal you established for the procurement.
(h) You must include in each prime
contract a provision for appropriate administrative remedies that you will invoke if the prime contractor fails to
comply with the requirements of this
section.
(i) You must apply the requirements
of this section to DBE bidders/offerors
for prime contracts. In determining
whether a DBE bidder/offeror for a
prime contract has met a contract
goal, you count the work the DBE has
committed to performing with its own
forces as well as the work that it has
committed to be performed by DBE
subcontractors and DBE suppliers.
[64 FR 5126, Feb. 2, 1999, as amended at 76 FR
5098, Jan. 28, 2011]
reasonable and not excessive as compared with fees customarily allowed for
similar services.
(3) When a DBE subcontracts part of
the work of its contract to another
firm, the value of the subcontracted
work may be counted toward DBE
goals only if the DBEs subcontractor
is itself a DBE. Work that a DBE subcontracts to a non-DBE firm does not
count toward DBE goals.
(b) When a DBE performs as a participant in a joint venture, count a portion of the total dollar value of the
contract equal to the distinct, clearly
defined portion of the work of the contract that the DBE performs with its
own forces toward DBE goals.
(c) Count expenditures to a DBE contractor toward DBE goals only if the
DBE is performing a commercially useful function on that contract.
(1) A DBE performs a commercially
useful function when it is responsible
for execution of the work of the contract and is carrying out its responsibilities by actually performing, managing, and supervising the work involved. To perform a commercially
useful function, the DBE must also be
responsible, with respect to materials
and supplies used on the contract, for
negotiating price, determining quality
and quantity, ordering the material,
and installing (where applicable) and
paying for the material itself. To determine whether a DBE is performing a
commercially useful function, you
must evaluate the amount of work subcontracted, industry practices, whether
the amount the firm is to be paid under
the contract is commensurate with the
work it is actually performing and the
DBE credit claimed for its performance
of the work, and other relevant factors.
(2) A DBE does not perform a commercially useful function if its role is
limited to that of an extra participant
in a transaction, contract, or project
through which funds are passed in
order to obtain the appearance of DBE
participation. In determining whether
a DBE is such an extra participant, you
must examine similar transactions,
particularly those in which DBEs do
not participate.
(3) If a DBE does not perform or exercise responsibility for at least 30 percent of the total cost of its contract
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26.55
DBE lessees receives credit only for the
fee or commission it receives as a result of the lease arrangement. If a recipient chooses this approach, it must
obtain written consent from the appropriate Department Operating Administration.
Example to this paragraph (d)(5): DBE Firm
X uses two of its own trucks on a contract.
It leases two trucks from DBE Firm Y and
six trucks from non-DBE Firm Z. DBE credit
would be awarded for the total value of
transportation services provided by Firm X
and Firm Y, and may also be awarded for the
total value of transportation services provided by four of the six trucks provided by
Firm Z. In all, full credit would be allowed
for the participation of eight trucks. With
respect to the other two trucks provided by
Firm Z, DBE credit could be awarded only
for the fees or commissions pertaining to
those trucks Firm X receives as a result of
the lease with Firm Z.
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26.61
equipment of the general character described by the specifications and required under the contract are bought,
kept in stock, and regularly sold or
leased to the public in the usual course
of business.
(A) To be a regular dealer, the firm
must be an established, regular business that engages, as its principal business and under its own name, in the
purchase and sale or lease of the products in question.
(B) A person may be a regular dealer
in such bulk items as petroleum products, steel, cement, gravel, stone, or
asphalt without owning, operating, or
maintaining a place of business as provided in this paragraph (e)(2)(ii) if the
person both owns and operates distribution equipment for the products.
Any supplementing of regular dealers
own distribution equipment shall be by
a long-term lease agreement and not
on an ad hoc or contract-by-contract
basis.
(C) Packagers, brokers, manufacturers representatives, or other persons
who arrange or expedite transactions
are not regular dealers within the
meaning of this paragraph (e)(2).
(3) With respect to materials or supplies purchased from a DBE which is
neither a manufacturer nor a regular
dealer, count the entire amount of fees
or commissions charged for assistance
in the procurement of the materials
and supplies, or fees or transportation
charges for the delivery of materials or
supplies required on a job site, toward
DBE goals, provided you determine the
fees to be reasonable and not excessive
as compared with fees customarily allowed for similar services. Do not
count any portion of the cost of the
materials and supplies themselves toward DBE goals, however.
(f) If a firm is not currently certified
as a DBE in accordance with the standards of subpart D of this part at the
time of the execution of the contract,
do not count the firms participation
toward any DBE goals, except as provided for in 26.87(i)).
(g) Do not count the dollar value of
work performed under a contract with
a firm after it has ceased to be certified toward your overall goal.
(h) Do not count the participation of
a DBE subcontractor toward a contrac-
tors final compliance with its DBE obligations on a contract until the
amount being counted has actually
been paid to the DBE.
[64 FR 5126, Feb. 2, 1999, as amended at 65 FR
68951, Nov. 15, 2000; 68 FR 35554, June 16, 2003]
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the type(s) of work the firm seeks to
perform in DOT-assisted contracts.
(b) Even if it meets the requirements
of paragraph (a) of this section, a firm
is not an eligible DBE in any Federal
fiscal year if the firm (including its affiliates) has had average annual gross
receipts, as defined by SBA regulations
(see 13 CFR 121.402), over the firms previous three fiscal years, in excess of
$22.41 million.
(c) The Department adjusts the number in paragraph (b) of this section annually using the Department of Commerce price deflators for purchases by
State and local governments as the
basis for this adjustment.
[74 FR 15224, Apr. 3, 2009]
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(e) The contributions of capital or expertise by the socially and economically disadvantaged owners to acquire
their ownership interests must be real
and substantial. Examples of insufficient contributions include a promise
to contribute capital, an unsecured
note payable to the firm or an owner
who is not a disadvantaged individual,
or mere participation in a firms activities as an employee. Debt instruments from financial institutions or
other organizations that lend funds in
the normal course of their business do
not render a firm ineligible, even if the
debtors ownership interest is security
for the loan.
(f) The following requirements apply
to situations in which expertise is relied upon as part of a disadvantaged
owners contribution to acquire ownership:
(1) The owners expertise must be
(i) In a specialized field;
(ii) Of outstanding quality;
(iii) In areas critical to the firms operations;
(iv) Indispensable to the firms potential success;
(v) Specific to the type of work the
firm performs; and
(vi) Documented in the records of the
firm. These records must clearly show
the contribution of expertise and its
value to the firm.
(2) The individual whose expertise is
relied upon must have a significant financial investment in the firm.
(g) You must always deem as held by
a socially and economically disadvantaged individual, for purposes of determining ownership, all interests in a
business or other assets obtained by
the individual
(1) As the result of a final property
settlement or court order in a divorce
or legal separation, provided that no
term or condition of the agreement or
divorce decree is inconsistent with this
section; or
(2) Through inheritance, or otherwise
because of the death of the former
owner.
(h)(1) You must presume as not being
held by a socially and economically
disadvantaged individual, for purposes
of determining ownership, all interests
in a business or other assets obtained
by the individual as the result of a gift,
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or transfer without adequate consideration, from any non-disadvantaged individual or non-DBE firm who is
(i) Involved in the same firm for
which the individual is seeking certification, or an affiliate of that firm;
(ii) Involved in the same or a similar
line of business; or
(iii) Engaged in an ongoing business
relationship with the firm, or an affiliate of the firm, for which the individual is seeking certification.
(2) To overcome this presumption and
permit the interests or assets to be
counted, the disadvantaged individual
must demonstrate to you, by clear and
convincing evidence, that
(i) The gift or transfer to the disadvantaged individual was made for
reasons other than obtaining certification as a DBE; and
(ii) The disadvantaged individual actually controls the management, policy, and operations of the firm, notwithstanding the continuing participation of a non-disadvantaged individual
who provided the gift or transfer.
(i) You must apply the following
rules in situations in which marital assets form a basis for ownership of a
firm:
(1) When marital assets (other than
the assets of the business in question),
held jointly or as community property
by both spouses, are used to acquire
the ownership interest asserted by one
spouse, you must deem the ownership
interest in the firm to have been acquired by that spouse with his or her
own individual resources, provided that
the other spouse irrevocably renounces
and transfers all rights in the ownership interest in the manner sanctioned
by the laws of the state in which either
spouse or the firm is domiciled. You do
not count a greater portion of joint or
community property assets toward
ownership than state law would recognize as belonging to the socially and
economically disadvantaged owner of
the applicant firm.
(2) A copy of the document legally
transferring and renouncing the other
spouses rights in the jointly owned or
community assets used to acquire an
ownership interest in the firm must be
included as part of the firms application for DBE certification.
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uals must not, however, possess or exercise the power to control the firm, or
be disproportionately responsible for
the operation of the firm.
(f) The socially and economically disadvantaged owners of the firm may delegate various areas of the management, policymaking, or daily operations of the firm to other participants
in the firm, regardless of whether these
participants are socially and economically disadvantaged individuals. Such
delegations of authority must be revocable, and the socially and economically disadvantaged owners must retain the power to hire and fire any person to whom such authority is delegated. The managerial role of the socially and economically disadvantaged
owners in the firms overall affairs
must be such that the recipient can
reasonably conclude that the socially
and economically disadvantaged owners actually exercise control over the
firms operations, management, and
policy.
(g) The socially and economically
disadvantaged owners must have an
overall understanding of, and managerial and technical competence and experience directly related to, the type of
business in which the firm is engaged
and the firms operations. The socially
and economically disadvantaged owners are not required to have experience
or expertise in every critical area of
the firms operations, or to have greater experience or expertise in a given
field than managers or key employees.
The socially and economically disadvantaged owners must have the ability to intelligently and critically
evaluate information presented by
other participants in the firms activities and to use this information to
make independent decisions concerning
the firms daily operations, management, and policymaking. Generally,
expertise limited to office management, administration, or bookkeeping
functions unrelated to the principal
business activities of the firm is insufficient to demonstrate control.
(h) If state or local law requires the
persons to have a particular license or
other credential in order to own and/or
control a certain type of firm, then the
socially and economically disadvantaged persons who own and control a
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business that operates only on evenings and/or weekends, if the individual controls it all the time it is operating.
(k)(1) A socially and economically
disadvantaged individual may control
a firm even though one or more of the
individuals immediate family members (who themselves are not socially
and economically disadvantaged individuals) participate in the firm as a
manager, employee, owner, or in another capacity. Except as otherwise
provided in this paragraph, you must
make a judgment about the control the
socially and economically disadvantaged owner exercises vis-a-vis other
persons involved in the business as you
do in other situations, without regard
to whether or not the other persons are
immediate family members.
(2) If you cannot determine that the
socially and economically disadvantaged ownersas distinct from the
family as a wholecontrol the firm,
then the socially and economically disadvantaged owners have failed to carry
their burden of proof concerning control, even though they may participate
significantly in the firms activities.
(l) Where a firm was formerly owned
and/or controlled by a non-disadvantaged individual (whether or not an immediate family member), ownership
and/or control were transferred to a socially and economically disadvantaged
individual, and the non-disadvantaged
individual remains involved with the
firm in any capacity, the disadvantaged individual now owning the firm
must demonstrate to you, by clear and
convincing evidence, that:
(1) The transfer of ownership and/or
control to the disadvantaged individual
was made for reasons other than obtaining certification as a DBE; and
(2) The disadvantaged individual actually controls the management, policy, and operations of the firm, notwithstanding the continuing participation of a non-disadvantaged individual
who formerly owned and/or controlled
the firm.
(m) In determining whether a firm is
controlled by its socially and economically disadvantaged owners, you may
consider whether the firm owns equipment necessary to perform its work.
However, you must not determine that
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agency needs to make an appropriate
NAICS code designation.
(3) If a firm believes that there is not
a NAICS code that fully or clearly describes the type(s) of work in which it
is seeking to be certified as a DBE, the
firm may request that the certifying
agency, in its certification documentation, supplement the assigned NAICS
code(s) with a clear, specific, and detailed narrative description of the type
of work in which the firm is certified.
A vague, general, or confusing description is not sufficient for this purpose,
and recipients should not rely on such
a description in determining whether a
firms participation can be counted toward DBE goals.
(4) A certifier is not precluded from
changing a certification classification
or description if there is a factual basis
in the record. However, certifiers must
not make after-the-fact statements
about the scope of a certification, not
supported by evidence in the record of
the certification action.
(o) A business operating under a franchise or license agreement may be certified if it meets the standards in this
subpart and the franchiser or licenser
is not affiliated with the franchisee or
licensee. In determining whether affiliation exists, you should generally not
consider the restraints relating to
standardized quality, advertising, accounting format, and other provisions
imposed on the franchisee or licensee
by the franchise agreement or license,
provided that the franchisee or licensee
has the right to profit from its efforts
and bears the risk of loss commensurate with ownership. Alternatively,
even though a franchisee or licensee
may not be controlled by virtue of such
provisions in the franchise agreement
or license, affiliation could arise
through other means, such as common
management or excessive restrictions
on the sale or transfer of the franchise
interest or license.
(p) In order for a partnership to be
controlled by socially and economically disadvantaged individuals, any
non-disadvantaged partners must not
have the power, without the specific
written concurrence of the socially and
economically disadvantaged partner(s),
to contractually bind the partnership
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(f) Recognition of a business as a separate entity for tax or corporate purposes is not necessarily sufficient to
demonstrate that a firm is an independent business, owned and controlled
by socially and economically disadvantaged individuals.
(g) You must not require a DBE firm
to be prequalified as a condition for
certification unless the recipient requires all firms that participate in its
contracts and subcontracts to be
prequalified.
(h) A firm that is owned by an Indian
tribe or Native Hawaiian organization,
rather than by Indians or Native Hawaiians as individuals, may be eligible
for certification. Such a firm must
meet the size standards of 26.35. Such
a firm must be controlled by socially
and economically disadvantaged individuals, as provided in 26.71.
(i) The following special rules apply
to the certification of firms related to
Alaska Native Corporations (ANCs).
(1) Notwithstanding any other provisions of this subpart, a direct or indirect subsidiary corporation, joint venture, or partnership entity of an ANC is
eligible for certification as a DBE if it
meets all of the following requirements:
26.81
(i) The Settlement Common Stock of
the underlying ANC and other stock of
the ANC held by holders of the Settlement Common Stock and by Natives
and descendents of Natives represents a
majority of both the total equity of the
ANC and the total voting power of the
corporation for purposes of electing directors;
(ii) The shares of stock or other units
of common ownership interest in the
subsidiary, joint venture, or partnership entity held by the ANC and by
holders of its Settlement Common
Stock represent a majority of both the
total equity of the entity and the total
voting power of the entity for the purpose of electing directors, the general
partner, or principal officers; and
(iii) The subsidiary, joint venture, or
partnership entity has been certified
by the Small Business Administration
under the 8(a) or small disadvantaged
business program.
(2) As a recipient to whom an ANCrelated entity applies for certification,
you do not use the DOT uniform application form (see appendix F of this
part). You must obtain from the firm
documentation sufficient to demonstrate that entity meets the requirements of paragraph (i)(1) of this section. You must also obtain sufficient
information about the firm to allow
you to administer your program (e.g.,
information that would appear in your
DBE Directory).
(3) If an ANC-related firm does not
meet all the conditions of paragraph
(i)(1) of this section, then it must meet
the requirements of paragraph (h) of
this section in order to be certified, on
the same basis as firms owned by Indian Tribes or Native Hawaiian Organizations.
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR
35555, June 16, 2003; 76 FR 5099, Jan. 28, 2011]
Subpart ECertification
Procedures
26.81 What are the requirements for
Unified Certification Programs?
(a) You and all other DOT recipients
in your state must participate in a
Unified Certification Program (UCP).
(1) Within three years of March 4,
1999, you and the other recipients in
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26.81
your state must sign an agreement establishing the UCP for that state and
submit the agreement to the Secretary
for approval. The Secretary may, on
the basis of extenuating circumstances
shown by the recipients in the state,
extend this deadline for no more than
one additional year.
(2) The agreement must provide for
the establishment of a UCP meeting all
the requirements of this section. The
agreement must specify that the UCP
will follow all certification procedures
and standards of this part, on the same
basis as recipients; that the UCP shall
cooperate fully with oversight, review,
and monitoring activities of DOT and
its operating administrations; and that
the UCP shall implement DOT directives and guidance concerning certification matters. The agreement shall
also commit recipients to ensuring
that the UCP has sufficient resources
and expertise to carry out the requirements of this part. The agreement
shall include an implementation schedule ensuring that the UCP is fully operational no later than 18 months following the approval of the agreement
by the Secretary.
(3) Subject to approval by the Secretary, the UCP in each state may take
any form acceptable to the recipients
in that state.
(4) The Secretary shall review the
UCP and approve it, disapprove it, or
remand it to the recipients in the state
for revisions. A complete agreement
which is not disapproved or remanded
within 180 days of its receipt is deemed
to be accepted.
(5) If you and the other recipients in
your state fail to meet the deadlines
set forth in this paragraph (a), you
shall have the opportunity to make an
explanation to the Secretary why a
deadline could not be met and why
meeting the deadline was beyond your
control. If you fail to make such an explanation, or the explanation does not
justify the failure to meet the deadline, the Secretary shall direct you to
complete the required action by a date
certain. If you and the other recipients
fail to carry out this direction in a
timely manner, you are collectively in
noncompliance with this part.
(b) The UCP shall make all certification decisions on behalf of all DOT
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26.83
its preferred locations for performing
the work, if any;
(6) Obtain or compile a list of the
equipment owned by or available to the
firm and the licenses the firm and its
key personnel possess to perform the
work it seeks to do as part of the DBE
program;
(7) Require potential DBEs to complete and submit an appropriate application form, unless the potential DBE
is an SBA certified firm applying pursuant to the DOT/SBA MOU.
(i) You must use the application form
provided in Appendix F to this part
without change or revision. However,
you may provide in your DBE program,
with the approval of the concerned operating
administration,
for
supplementing the form by requesting
additional information not inconsistent with this part.
(ii) You must make sure that the applicant attests to the accuracy and
truthfulness of the information on the
application form. This shall be done either in the form of an affidavit sworn
to by the applicant before a person who
is authorized by state law to administer oaths or in the form of an
unsworn declaration executed under
penalty of perjury of the laws of the
United States.
(iii) You must review all information
on the form prior to making a decision
about the eligibility of the firm.
(d) When another recipient, in connection with its consideration of the
eligibility of a firm, makes a written
request for certification information
you have obtained about that firm
(e.g., including application materials
or the report of a site visit, if you have
made one to the firm), you must
promptly make the information available to the other recipient.
(e) [Reserved]
(f) Subject to the approval of the concerned operating administration as
part of your DBE program, you may
impose a reasonable application fee for
certification. Fee waivers shall be
made in appropriate cases.
(g) You must safeguard from disclosure to unauthorized persons information gathered as part of the certification process that may reasonably be
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26.83
regarded as proprietary or other confidential business information, consistent with applicable Federal, state,
and local law.
(h) Once you have certified a DBE, it
shall remain certified until and unless
you have removed its certification, in
whole or in part, through the procedures of section 26.87. You may not require DBEs to reapply for certification
or require recertification of currently certified firms. However, you
may conduct a certification review of a
certified DBE firm, including a new onsite review, three years from the date
of the firms most recent certification,
or sooner if appropriate in light of
changed circumstances (e.g., of the
kind requiring notice under paragraph
(i) of this section), a complaint, or
other information concerning the
firms eligibility. If you have grounds
to question the firms eligibility, you
may conduct an on-site review on an
unannounced basis, at the firms offices
and jobsites.
(i) If you are a DBE, you must inform
the recipient or UCP in writing of any
change in circumstances affecting your
ability to meet size, disadvantaged status, ownership, or control requirements of this part or any material
change in the information provided in
your application form.
(1) Changes in management responsibility among members of a limited liability company are covered by this requirement.
(2) You must attach supporting documentation describing in detail the nature of such changes.
(3) The notice must take the form of
an affidavit sworn to by the applicant
before a person who is authorized by
state law to administer oaths or of an
unsworn declaration executed under
penalty of perjury of the laws of the
United States. You must provide the
written notification within 30 days of
the occurrence of the change. If you
fail to make timely notification of
such a change, you will be deemed to
have
failed
to
cooperate
under
26.109(c).
(j) If you are a DBE, you must provide to the recipient, every year on the
anniversary of the date of your certification, an affidavit sworn to by the
firms owners before a person who is
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26.85
your status as an applicant or certified
DBE in those states. For example, if
you have been denied certification or
decertified in State C, or subject to a
decertification action there, you must
inform State B of this fact and provide
all documentation concerning this action to State B.
(3) If you have filed a certification
appeal with DOT (see 26.89), you must
inform State B of the fact and provide
your letter of appeal and DOTs response to State B.
(4) You must submit an affidavit
sworn to by the firms owners before a
person who is authorized by State law
to administer oaths or an unsworn declaration executed under penalty of perjury of the laws of the United States.
(i) This affidavit must affirm that
you have submitted all the information
required by 49 CFR 26.85(c) and the information is complete and, in the case
of
the
information
required
by
26.85(c)(1), is an identical copy of the
information submitted to State A.
(ii) If the on-site report from State A
supporting your certification in State
A is more than three years old, as of
the date of your application to State B,
State B may require that your affidavit also affirm that the facts in the
on-site report remain true and correct.
(d) As State B, when you receive
from an applicant firm all the information required by paragraph (c) of this
section, you must take the following
actions:
(1) Within seven days contact State A
and request a copy of the site visit review
report
for
the
firm
(see
26.83(c)(1)), any updates to the site
visit review, and any evaluation of the
firm based on the site visit. As State A,
you must transmit this information to
State B within seven days of receiving
the request. A pattern by State B of
not making such requests in a timely
manner or by State A or any other
State of not complying with such requests in a timely manner is noncompliance with this part.
(2) Determine whether there is good
cause to believe that State As certification of the firm is erroneous or
should not apply in your State. Reasons for making such a determination
may include the following:
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26.87
26.87 What procedures does a recipient use to remove a DBEs eligibility?
(a) Ineligibility complaints. (1) Any person may file with you a written complaint alleging that a currently-certified firm is ineligible and specifying
the alleged reasons why the firm is ineligible. You are not required to accept
a general allegation that a firm is ineligible or an anonymous complaint.
The complaint may include any information or arguments supporting the
complainants assertion that the firm
is ineligible and should not continue to
be certified. Confidentiality of complainants identities must be protected
as provided in 26.109(b).
(2) You must review your records
concerning the firm, any material provided by the firm and the complainant,
and other available information. You
may request additional information
from the firm or conduct any other investigation that you deem necessary.
(3) If you determine, based on this review, that there is reasonable cause to
believe that the firm is ineligible, you
must provide written notice to the firm
that you propose to find the firm ineligible, setting forth the reasons for the
proposed determination. If you determine that such reasonable cause does
not exist, you must notify the complainant and the firm in writing of this
determination and the reasons for it.
All statements of reasons for findings
on the issue of reasonable cause must
specifically reference the evidence in
the record on which each reason is
based.
(b) Recipient-initiated proceedings. If,
based on notification by the firm of a
change in its circumstances or other
information that comes to your attention, you determine that there is reasonable cause to believe that a currently certified firm is ineligible, you
must provide written notice to the firm
that you propose to find the firm ineligible, setting forth the reasons for the
proposed determination. The statement
of reasons for the finding of reasonable
cause must specifically reference the
evidence in the record on which each
reason is based.
(c) DOT directive to initiate proceeding.
(1) If the concerned operating administration determines that information in
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26.89
26.89 What is the process for certification appeals to the Department of
Transportation?
(a)(1) If you are a firm that is denied
certification or whose eligibility is removed by a recipient, including SBAcertified firms applying pursuant to
the DOT/SBA MOU, you may make an
administrative appeal to the Department.
(2) If you are a complainant in an ineligibility complaint to a recipient (including the concerned operating administration in the circumstances provided in 26.87(c)), you may appeal to
the Department if the recipient does
not find reasonable cause to propose removing the firms eligibility or, following a removal of eligibility proceeding, determines that the firm is eligible.
(3) Send appeals to the following address: Department of Transportation,
Office of Civil Rights, 1200 New Jersey
Avenue, SE., Washington, DC 20590.
(b) Pending the Departments decision in the matter, the recipients decision remains in effect. The Department
does not stay the effect of the recipients decision while it is considering an
appeal.
(c) If you want to file an appeal, you
must send a letter to the Department
within 90 days of the date of the recipients final decision, including information and arguments concerning why
the recipients decision should be reversed. The Department may accept an
appeal filed later than 90 days after the
date of the decision if the Department
determines that there was good cause
for the late filing of the appeal.
(1) If you are an appellant who is a
firm which has been denied certification, whose certification has been removed, whose owner is determined not
to be a member of a designated disadvantaged group, or concerning whose
owner the presumption of disadvantage
has been rebutted, your letter must
state the name and address of any
other recipient which currently certifies the firm, which has rejected an
application for certification from the
firm or removed the firms eligibility
within one year prior to the date of the
appeal, or before which an application
for certification or a removal of eligibility is pending. Failure to provide
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tive on the date of your receipt of the
written notice of Departments determination.
(4) If the Department determines
that you erroneously determined that
the presumption of social and economic disadvantage either should or
should not be deemed rebutted, you
must take appropriate corrective action as determined by the Department.
(5) If the Department affirms your
determination, no further action is
necessary.
(c) Where DOT has upheld your denial of certification to or removal of
eligibility from a firm, or directed the
removal of a firms eligibility, other
recipients with whom the firm is certified may commence a proceeding to
remove the firms eligibility under
26.87. Such recipients must not remove the firms eligibility absent such
a proceeding. Where DOT has reversed
your denial of certification to or removal of eligibility from a firm, other
recipients must take the DOT action
into account in any certification action involving the firm. However, other
recipients are not required to certify
the firm based on the DOT decision.
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26.109
Information and Privacy Acts (5 U.S.C.
552 and 552a). The Department may
make available to the public any information concerning the DBE program
release of which is not prohibited by
Federal law.
(2) Notwithstanding any provision of
Federal or state law, you must not release any information that may reasonably be construed as confidential
business information to any third
party without the written consent of
the firm that submitted the information. This includes applications for
DBE certification and supporting information. However, you must transmit
this information to DOT in any certification appeal proceeding under 26.89
of this part or to any other state to
which the individuals firm has applied
for certification under 26.85 of this
part.
(b) Confidentiality of information on
complainants. Notwithstanding the provisions of paragraph (a) of this section,
the identity of complainants shall be
kept confidential, at their election. If
such confidentiality will hinder the investigation, proceeding or hearing, or
result in a denial of appropriate administrative due process to other parties,
the complainant must be advised for
the purpose of waiving the privilege.
Complainants are advised that, in some
circumstances, failure to waive the
privilege may result in the closure of
the investigation or dismissal of the
proceeding or hearing. FAA follows the
procedures of 14 CFR part 16 with respect to confidentiality of information
in complaints.
(c) Cooperation. All participants in
the Departments DBE program (including, but not limited to, recipients,
DBE firms and applicants for DBE certification, complainants and appellants, and contractors using DBE firms
to meet contract goals) are required to
cooperate fully and promptly with DOT
and recipient compliance reviews, certification reviews, investigations, and
other requests for information. Failure
to do so shall be a ground for appropriate action against the party involved (e.g., with respect to recipients,
a finding of noncompliance; with respect to DBE firms, denial of certification or removal of eligibility and/or
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that there may be some additional costs involved in finding and using DBEs is not in
itself sufficient reason for a bidders failure
to meet the contract DBE goal, as long as
such costs are reasonable. Also, the ability
or desire of a prime contractor to perform
the work of a contract with its own organization does not relieve the bidder of the responsibility to make good faith efforts.
Prime contractors are not, however, required
to accept higher quotes from DBEs if the
price difference is excessive or unreasonable.
E. Not rejecting DBEs as being unqualified
without sound reasons based on a thorough
investigation of their capabilities. The contractors standing within its industry, membership in specific groups, organizations, or
associations and political or social affiliations (for example union vs. non-union employee status) are not legitimate causes for
the rejection or non-solicitation of bids in
the contractors efforts to meet the project
goal.
F. Making efforts to assist interested DBEs
in obtaining bonding, lines of credit, or insurance as required by the recipient or contractor.
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a trust, a beneficiary of which is an immediate family member, for less than fair market value, within two years prior to a concerns application for participation in the
DBE program, unless the individual claiming
disadvantaged status can demonstrate that
the transfer is to or on behalf of an immediate family member for that individuals
education, medical expenses, or some other
form of essential support.
(2) Recipients will not attribute to an individual claiming disadvantaged status any assets transferred by that individual to an immediate family member that are consistent
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ER16JN03.066</GPH>
Pt. 27
PART
27NONDISCRIMINATION
ON THE BASIS OF DISABILITY IN
PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL
ASSISTANCE
Subpart AGeneral
Sec.
27.1 Purpose.
27.3 Applicability.
27.5 Definitions.
27.7 Discrimination prohibited.
27.9 Assurance required.
27.11 Remedial action, voluntary action,
and compliance planning.
27.13 Designation of responsible employee
and adoption of grievance procedures.
27.15 Notice.
27.17 Effect of State or local law.
27.19 Compliance with Americans with Disabilities Act requirements and FTA policy.
Subpart CEnforcement
27.121
27.123
27.125
27.127
27.129
Compliance information.
Conduct of investigations.
Compliance procedure.
Hearings.
Decisions and notices.
Subpart AGeneral
27.1 Purpose.
The purpose of this part is to carry
out the intent of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794)
as amended, to the end that no otherwise qualified individual with a disability in the United States shall, solely by reason of his or her disability, be
excluded from the participation in, be
denied the benefits of, or be subjected
Applicability.
27.5
Definitions.
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27.5
mental or physical impairment that
substantially limits one or more major
life activities.
(d) Is regarded as having an impairment
means:
(1) Has a physical or mental impairment that does not substantially limit
major life activities but that is treated
by a recipient as constituting such a
limitation;
(2) Has a physical or mental impairment that substantially limits major
life activity only as a result of the attitudes of others toward such an impairment; or
(3) Has none of the impairments set
forth in paragraph (1) of this definition,
but is treated by a recipient as having
such an impairment.
Head of Operating Administration
means the head of an operating administration within the Department (U.S.
Coast Guard, Federal Highway Administration, Federal Aviation Administration, Federal Railroad Administration, National Highway Traffic Safety
Administration, Federal Transit Administration, and Research and Special
Programs Administration) providing
Federal financial assistance to the recipient.
Primary recipient means any recipient
that is authorized or required to extend
Federal financial assistance from the
Department to another recipient.
Program or activity means all of the
operations of any entity described in
paragraphs (1) through (4) of this definition, any part of which is extended
Federal financial assistance:
(1)(i) A department, agency, special
purpose district, or other instrumentality of a State or of a local government; or
(ii) The entity of such State or local
government that distributes such assistance and each such department or
agency (and each other State or local
government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(i) A college, university, or other
postsecondary institution, or a public
system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;
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27.7
27.7
Discrimination prohibited.
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27.9
(i) That have the effect of excluding
handicapped persons from, denying
them the benefits of, or otherwise subjecting them to discrimination under
any program or activity that receives
Federal financial assistance, or
(ii) That have the purpose or effect of
defeating or substantially impairing
the accomplishment of the objectives
of the program or activity with respect
to handicapped persons.
(6) As used in this section, the aid
benefit, or service provided under a
program or activity receiving Federal
financial assistance includes any aid,
benefit, or service provided in or
through a facility that has been constructed, expanded, altered, leased or
rented, or otherwise acquired, in whole
or in part, with Federal financial assistance.
(c) Communications. Recipients shall
take appropriate steps to ensure that
communications with their applicants,
employees, and beneficiaries are available to persons with impaired vision
and hearing.
(d) Aid, benefits, or services limited by
Federal law. For aid, benefits, or services authorized by Federal statute or
executive order that are designed especially for the handicapped, or for a particular class of handicapped persons,
the exclusion of nonhandicapped or
other classes of handicapped persons is
not prohibited by this part.
[44 FR 3l468, May 31, 1979, as amended at 68
FR 51390, Aug. 26, 2003]
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27.11
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27.17
(b) Adoption of complaint procedures. A
recipient that employs fifteen or more
persons shall, within 180 days, adopt
and file with the head of the operating
administration procedures that incorporate appropriate due process standards and provide for the prompt and equitable resolution of complaints alleging any action prohibited by this part.
27.15
Notice.
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27.19
Airport facilities.
(a) This section applies to all terminal facilities and services owned,
leased, or operated on any basis by a
recipient of DOT financial assistance
at a commercial service airport, including parking and ground transportation facilities.
(b) Airport operators shall ensure
that the terminal facilities and services subject to this section shall be
readily accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs. Airport operators shall be deemed to comply with this section 504 obligation if
they meet requirements applying to
state and local government programs
or activities and facilities under Department of Justice (DOJ) regulations
implementing Title II of the Americans
with Disabilities Act (ADA).
(c) The airport shall ensure that
there is an accessible path between the
gate and the area from which aircraft
are boarded.
(d) Systems of inter-terminal transportation, including, but not limited
to, shuttle vehicles and people movers,
shall comply with applicable requirements of the Department of Transportations ADA rules.
(e) The Americans with Disabilities
Act
Accessibility
Guidelines
(ADAAGs), including section 10.4 concerning airport facilities, shall be the
standard for accessibility under this
section.
(f) Contracts or leases between carriers and airport operators concerning
the use of airport facilities shall set
forth the respective responsibilities of
the parties for the provision of accessible facilities and services to individuals with disabilities as required by
this part and applicable ADA rules of
the Department of Transportation and
Department of Justice for airport operators and applicable Air Carrier Access
Act rules (49 CFR part 382) for carriers.
(g) If an airport operator who receives Federal financial assistance for
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27.72 Boarding
craft.
assistance
for
air-
27.72
and complete implementation of the
agreement.
(3) Boarding assistance under the
agreement is not required in the following situations:
(i) Access to aircraft with a capacity
of fewer than 19 or more than 30 seats;
(ii) Access to float planes;
(iii) Access to the following 19-seat
capacity aircraft models: the Fairchild
Metro, the Jetstream 31, and the Beech
1900 (C and D models);
(iv) Access to any other 19-seat aircraft model determined by the Department of Transportation to be unsuitable for boarding assistance by lift,
ramp or other suitable device on the
basis of a significant risk of serious
damage to the aircraft or the presence
of internal barriers that preclude passengers who use a boarding or aisle
chair to reach a non-exit row seat.
(4) When boarding assistance is not
required to be provided under paragraph (c)(3) of this section, or cannot
be provided as required by paragraphs
(b) and (c) of this section (e.g., because
of mechanical problems with a lift),
boarding assistance shall be provided
by any available means to which the
passenger consents, except hand-carrying as defined in 14 CFR 382.39(a)(2).
(5) The agreement shall ensure that
all lifts and other accessibility equipment are maintained in proper working
condition.
(d)(1) Each airport operator shall negotiate in good faith with each carrier
serving the airport concerning the acquisition and use of boarding assistance devices for aircraft with a seating
capacity of 31 or more passengers
where level entry boarding is not otherwise available. The airport operator
and the carrier(s) shall, by no later
than March 4, 2002 sign a written agreement allocating responsibility for
meeting the boarding assistance requirements of this section between or
among the parties. The agreement
shall be made available, on request, to
representatives of the Department of
Transportation.
(2) The agreement shall provide that
all actions necessary to ensure accessible boarding for passengers with disabilities are completed as soon as practicable, but no later than December 4,
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27.75
2002. All air carriers and airport operators involved are jointly responsible for
the timely and complete implementation of the agreement.
(3) Level-entry boarding assistance
under the agreement is not required
with respect to float planes or with respect to any widebody aircraft determined by the Department of Transportation to be unsuitable for boarding assistance by lift, ramp, or other device
on the basis that no existing boarding
assistance device on the market will
accommodate the aircraft without a
significant risk of serious damage to
the aircraft or injury to passengers or
employees.
(4) When level-entry boarding assistance is not required to be provided
under paragraph (d)(3) of this section,
or cannot be provided as required by
paragraphs (b) and (d) of this section
(e.g., because of mechanical problems
with a lift), boarding assistance shall
be provided by any available means to
which the passenger consents, except
hand-carrying as defined in 14 CFR
382.39(a)(2).
(5) The agreement shall ensure that
all lifts and other accessibility equipment are maintained in proper working
condition.
(e) In the event that airport personnel are involved in providing boarding assistance, the airport shall ensure
that they are trained to proficiency in
the use of the boarding assistance
equipment used at the airport and appropriate boarding assistance procedures that safeguard the safety and
dignity of passengers.
27.77 Recipients of
Service subsidies.
Essential
Any air carrier receiving Federal financial assistance from the Department of Transportation under the Essential Air Service Program shall, as a
condition of receiving such assistance,
comply with applicable requirements
of this part and applicable section 504
and ACAA rules of the Department of
Transportation.
[61 FR 56425, Nov. 1, 1996, as amended at 68
FR 51391, Aug. 26, 2003]
Subpart CEnforcement
SOURCE: 44 FR 31468, May 31, 1979, unless
otherwise noted. Redesignated at 56 FR 45621,
Sept. 6, 1991.
27.121
Compliance information.
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27.123
the responsible Departmental official
finds necessary to apprise them of the
protections against discrimination provided by the Act and this part.
[44 FR 31468, May 31, 1979. Redesignated at 56
FR 45621, Sept. 6, 1991. 68 FR 51391, Aug. 26,
2003]
27.123
Conduct of investigations.
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27.125
27.125
Compliance procedure.
27.127 Hearings.
(a) Opportunity for hearing. Whenever
an opportunity for a hearing is required by 27.125(b), reasonable notice
is given by the responsible Departmental official by registered or certified mail, return receipt requested, to
the affected applicant or recipient.
This notice advises the applicant or recipient of the action proposed to be
taken, the specific provision under
which the proposed action is to be
taken, and the matters of fact or law
asserted as the basis for this action,
and either:
(1) Fixes a date not less than 20 days
after the date of such notice within
which the applicant or recipient may
request a hearing; or
(2) Advises the applicant or recipient
that the matter in question has been
set for hearing at a stated place and
time.
The time and place shall be reasonable
and subject to change for cause. The
complainant, if any, also is advised of
the time and place of the hearing. An
applicant or recipient may waive a
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27.129
pear and testify as a witness on the
governments behalf, attends at a time
and place scheduled for a hearing provided for by this part may be reimbursed for his/her travel and actual expenses in an amount not to exceed the
amount payable under the standardized
travel regulations applicable to a government employee traveling on official
business.
(2) Technical rules of evidence do not
apply to hearings conducted pursuant
to this part, but rules or principles designed to assure production of the most
credible evidence available and to subject testimony to cross examination
are applied where reasonably necessary
by the Administrative Law Judge conducting the hearing. The Administrative Law Judge may exclude irrelevant,
immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record
are open to examination by the parties
and opportunity is given to refute facts
and arguments advanced by either side.
A transcript is made of the oral evidence except to the extent the substance thereof is stipulated for the
record. All decisions are based on the
hearing record and written findings
shall be made.
(f) Consolidation or joint hearings. In
cases in which the same or related
facts are asserted to constitute noncompliance with this regulation with
respect to two or more Federal statutes, authorities, or other means by
which Federal financial assistance is
extended and to which this part applies, or noncompliance with this part
and the regulations of one or more
other Federal departments or agencies
issued under section 504 of the Act, the
responsible Departmental official may,
in agreement with such other departments or agencies, where applicable,
provide for consolidated or joint hearings. Final decisions in such cases, insofar as this regulation is concerned,
are made in accordance with 27.129.
[44 FR 31468, May 31, 1979. Redesignated at 56
FR 45621, Sept. 6, 1991. 68 FR 51391, Aug. 26,
2003]
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Pt. 28
record including his recommended findings and proposed decision to the Secretary for a final decision. A copy of
the certification is mailed to the applicant or recipient and to the complainant, if any. The responsible Departmental official and the applicant or recipient may submit written arguments
to the Secretary concerning the Administrative
Law
Judges
recommended findings and proposed decision.
(b) Final decision by the Secretary.
When the record is certified to the Secretary by the Administrative Law
Judge, the Secretary reviews the
record and accepts, rejects, or modifies
the Administrative Law Judges recommended findings and proposed decision, stating the reasons therefor.
(c) Decisions if hearing is waived.
Whenever a hearing pursuant to
27.125(b) is waived, the Secretary
makes his/her final decision on the
record, stating the reasons therefor.
(d) Rulings required. Each decision of
the Administrative Law Judge or the
Secretary contains a ruling on each
finding or conclusion presented and
specifies any failures to comply with
this part.
(e) Content of orders. The final decision may provide for suspension or termination, or refusal to grant or continue Federal financial assistance, in
whole or in part, to which this first
regulation applies. The decision may
contain such terms, conditions, and
other provisions as are consistent with
and will effectuate the purposes of the
Act and this part, including provisions
designed to assure that no Federal financial assistance to which this regulation applies will thereafter be extended unless and until the recipient
corrects its noncompliance and satisfies the Secretary that it will fully
comply with this part.
(f) Subsequent proceedings. (1) An applicant or recipient adversely affected
by an order issued under paragraph (e)
of this section is restored to full eligibility to receive Federal financial assistance if it satisfies the terms and
conditions of that order or if it brings
itself into compliance with this part
and provides reasonable assurance that
it will fully comply with this part.
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28.101 Purpose.
The purpose of this part is to carry
out section 119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended section 504 of the
Rehabilitation Act of 1973 to prohibit
discrimination on the basis of handicap
in programs or activities conducted by
Executive agencies, including this Department, or the United States Postal
Service. 49 CFR part 27 implements
section 504 in the Departments financial assistance programs.
28.102 Application.
This part applies to all programs or
activities conducted by the Department except for programs and activities conducted outside the United
States that do not involve individuals
with handicaps in the United States.
28.103 Definitions.
For purposes of this part, the term
Assistant Attorney General means the
Assistant Attorney General, Civil
Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with impaired sensory, manual, or speaking
skills to have an equal opportunity to
participate in, and enjoy the benefits
of, programs or activities conducted by
the Department. For example, auxiliary aids useful for persons with impaired vision include readers, Brailled
materials, audio recordings, and other
28.103
similar services and devices. Auxiliary
aids useful for persons with impaired
hearing include telephone handset amplifiers, telephones compatible with
hearing aids, telecommunication devices for deaf persons (TDDs), interpreters, notetakers, written materials,
and other similar services and devices.
Complete complaint means a written
statement that contains the complainants name and address and describes
the Departments alleged discriminatory actions in sufficient detail to inform the Department of the nature and
date of the alleged violation of section
504. It shall be signed by the complainant or by someone authorized to do so
on his or her behalf. Complaints filed
on behalf of classes or third parties
shall describe or identify (by name, if
possible) the alleged victims of discrimination.
Current illegal use of drugs means illegal use of drugs that occurred recently
enough to justify a reasonable belief
that a persons drug use is current or
that continuing use is a real and ongoing problem.
Drug means a controlled substance,
as defined in schedules I through V of
section 202 of the Controlled Substances Act (21 U.S.C. 812).
Department or DOT means the U.S.
Department of Transportation, including the Office of the Secretary and all
operating administrations.
Departmental Element (or DOT element) means any one of the following
organizations within the Department:
(a) Office of the Secretary (OST).
(b) United States Coast Guard
(USCG).
(c) Federal Aviation Administration
(FAA).
(d) Federal Highway Administration
(FHWA).
(e) Federal Railroad Administration
(FRA).
(f) National Highway Traffic Safety
Administration (NHTSA).
(g) Federal Transit Administration
(FTA).
(h) Research and Special Programs
Administration (RSPA).
(i)
Maritime
Administration
(MARAD).
(j) St. Lawrence Seaway Development Corporation (SLSDC).
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28.103
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28.10428.109
[Reserved]
28.110 Self-evaluation.
(a) The Department shall, by one
year of the effective date of this part,
evaluate its current policies and practices, and effects thereof, that do not
or may not meet the requirements of
this part, and, to the extent modification of any such policies and practices
is required, the Department shall proceed to make the necessary modifications.
(b) The Department shall provide an
opportunity to interested persons, including individuals with handicaps,
agency employees with handicaps, and
organizations representing individuals
with handicaps, to participate in the
self-evaluation process by submitting
comments (both oral and written).
(c) The Department shall, until at
least three years following completion
of the evaluation required under paragraph (a) of this section, or until such
time as all modifications identified by
the self-evaluation to be necessary to
comply with section 504 have been completed, whichever occurs later, maintain on file and make available for public inspection
(1) A description of areas examined,
regulations and nonregulatory criteria
reviewed, and any problems identified;
and
(2) A description of any modifications
made.
28.111 Notice.
The Department shall make available to employees, applicants, participants, beneficiaries, and other inter-
28.130
ested persons such information regarding the provisions of this part and its
applicability to the programs or activities conducted by the Department, and
make such information available to
them in such manner as the Department finds necessary to apprise such
persons of the protections against discrimination assured them by section
504 and this regulation.
28.11228.129
[Reserved]
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28.131
(vi) Otherwise limit a qualified individual with handicaps in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others
receiving the aid, benefit, or service.
(2) The Department may not deny a
qualified individual with handicaps the
opportunity to participate in programs
or activities that are not separate or
different, despite the existence of permissibly separate or different programs
or activities.
(3) The Department may not, directly
or through contractual or other arrangements, utilize criteria or methods
of administration the purpose or effect
of which would
(i) Subject qualified individuals with
handicaps to discrimination on the
basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a
program or activity with respect to individuals with handicaps.
(4) The Department may not, in determining the site or location of a facility, make selections the purpose or
effect of which would
(i) Exclude individuals with handicaps from, deny them the benefits of,
or otherwise subject them to discrimination under any program or activity
conducted by the Department; or
(ii) Defeat or substantially impair
the accomplishment of the objectives
of a program or activity with respect
to individuals with handicaps.
(5) The Department, in the selection
of procurement contractors, may not
use criteria that subject qualified individuals with handicaps to discrimination on the basis of handicap.
(6) The Department may not administer a licensing or certification program in a manner that subjects qualified individuals with handicaps to discrimination on the basis of handicap,
nor may the Department establish requirements for the programs or activities of licensees or certified entities
that subject qualified individuals with
handicaps to discrimination on the
basis of handicap. However, the programs or activities of entities that are
licensed or certified by the Department
are not, themselves, covered by this
part. The Department may limit the
programs or activities of a licensee or
certificate holder, who is a qualified in-
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[Reserved]
28.140 Employment.
(a) No qualified individual with
handicaps shall, on the basis of handicap, be subjected to discrimination in
employment under any program or activity conducted by the Department.
(b) The definitions, requirements,
and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791),
as established by the Equal Employment Opportunity Commission in 29
CFR part 1613, shall apply to employment in federally conducted programs
or activities. The provisions of this section do not apply to military personnel
of the U.S. Coast Guard.
28.14128.148
[Reserved]
28.150
den of proving that compliance with
28.150(a) would result in such alteration or burdens. The decision that
compliance would result in such alteration or burdens must be made by the
Secretary or his or her designee, after
considering all resources available for
use in the funding and operation of the
program or activity, and must be accompanied by a written statement of
the reasons for reaching that conclusion. If an action would result in such
an alteration or such burdens, the Department shall take any other action
that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with
handicaps receive the benefits and
services of the program or activity.
(b) Methods. The Department may
comply with the requirements of this
section through such means as redesign
of equipment, reassignment of services
to accessible buildings, assignment of
aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities,
use of accessible rolling stock, or any
other methods that result in making
its programs or activities readily accessible to and usable by individuals
with handicaps. The Department is not
required to make structural changes in
existing facilities where other methods
are effective in achieving compliance
with this section. The Department, in
making alterations to existing buildings, shall meet accessibility requirements to the extent compelled by the
Architectural Barriers Act of 1968, as
amended (42 U.S.C. 41514157), and any
regulations implementing it. In choosing among available methods for meeting the requirements of this section,
the Department shall give priority to
those methods that offer programs and
activities to qualified individuals with
handicaps in the most integrated setting appropriate.
(c) Time period for compliance. The Department shall comply with the obligations established under this section
within sixty days of the effective date
of this part except that where structural changes in facilities are undertaken, such changes shall be made
within three years of the effective date
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28.151
[Reserved]
Communications.
(a) The Department shall take appropriate steps to ensure effective communication with applicants, participants,
personnel of other Federal entities, and
members of the public.
(1) The Department shall furnish appropriate auxiliary aids where necessary to afford an individual with
handicaps an equal opportunity to participate in, and enjoy the benefits of, a
program or activity conducted by the
Department.
(i) In determining what type of auxiliary aid is necessary, the Department
shall give primary consideration to the
requests of the individual with handicaps.
(ii) The Department need not provide
individually prescribed devices, readers
for personal use or study, or other devices of a personal nature to applicants
or participants in programs.
(2) Where the Department communicates with applicants and beneficiaries by telephone, telecommunications devices for deaf persons (TDDs)
or equally effective telecommunication
systems, shall be used to communicate
with persons with impaired hearing.
(b) The Department shall ensure that
interested persons, including persons
with impaired vision or hearing, can
obtain information as to the existence
and location of accessible services, activities, and facilities.
(c) The Department shall provide
signs at each primary entrance to each
of its inaccessible facilities, directing
users to a location at which they can
obtain information as to the location
of accessible facilities. The international symbol for accessibility shall
be used at each primary entrance of an
accessible facility.
(d) This section does not require the
Department to take any action that it
can demonstrate would result in a fundamental alteration in the nature of a
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28.170
[Reserved]
Compliance procedures.
28.170
writing, or the decision on the request.
The complainant may request reconsideration by the Departmental element
of the decision. The decision on the petition or request shall constitute the
Departments final action in the matter.
(c) Responsibility for implementation and operation of this section shall
be vested in the Director, Departmental Office of Civil Rights.
(d)(1) The Department shall accept
and investigate all complete complaints for which it has jurisdiction.
All complete complaints must be filed
within 180 days of the alleged act of
discrimination. The Department may
extend this time period for good cause.
(2) If the subject matter of a complete complaint concerns a decision by
a Departmental element, under a safety regulation, concerning an individuals qualifications to perform a function or to receive a certificate or license, and the complainant has available within the Departmental element
a formal review or appeal mechanism
concerning that decision, the Department shall not take action on the complaint until the Departmental elements review or appeal process has
been completed.
(e) If the Department receives a complaint over which it does not have jurisdiction, it shall promptly notify the
complainant and shall make reasonable efforts to refer the complaint to
the appropriate Government entity.
(f) The Department shall notify the
Architectural and Transportation Barriers Compliance Board upon receipt of
any complaint alleging that a building
or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 41514157), is not readily
accessible to and usable by individuals
with handicaps.
(g) Within 180 days of the receipt of a
complete complaint for which it has jurisdiction, the Department shall notify
the complainant of the results of the
investigation in a letter containing
(1) Findings of fact and conclusions
of law;
(2) A description of a remedy for each
violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and
conclusions of law or remedies must be
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28.17128.999
28.17128.999
[Reserved]
30.1 Purpose.
The rules in this part implement section 109(a) of the Continuing Resolution on the Fiscal Year 1988 Budget,
Public Law No. 100202 (signed December 22, 1987) [the Continuing Resolution], and section 115 of the Airport
and Airways Safety and Capacity Expansion Act of 1987, Public Law No.
100223 (signed December 30, 1987) [the
Airport Safety Act]. These rules are intended to give uniform implementation
to these statutes throughout DOT procurement and grant programs.
30.3 Applicability.
(a) The restrictions imposed by section 109(a) of the Continuing Resolution extend to all DOT agencies as well
as all recipients of DOT funds. The restrictions apply to all projects for
which funds are obligated or contracts
or subcontracts are awarded during fiscal year 1988, including projects and
contracts under all DOT financial assistance programs. The prohibition applies to public buildings and public
works projects everywhere in the
United States or any territory or possession of the United States. U.S. overseas bases, installations, and embassies
are not subject to this part.
(b) The restrictions imposed by section 115 of the Airport Safety Act extend to all projects for which funds are
made available by that Act, whether or
not the contracts are awarded during
fiscal year 1988. The restrictions apply
to all contracts entered into under
grants authorized by the Airport Safety Act.
(c) This part applies to projects covered by section 109(a) of the Continuing
Resolution, section 115 of the Airport
Safety Act, or both. Whether one or
the other statute or both apply, the effect on the project shall be the same,
subject to paragraph (e) of this section.
(d) In addition to construction, alteration, and repair contracts, the restrictions of this part cover all architect,
engineering, and other services related
to the preparation and performance of
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30.9
tration, or their grantees for expenditure or obligation in fiscal year 1988,
regardless of the fiscal year in which
the funds were appropriated.
(b) Funds made available by this Act,
as used in this part with reference to
section 115(a) of the Airport Safety
Act, means all funds, including trust
funds, made available to DOT, its
modal administrations, or their grantees by that Act, whether or not the
contracts to be funded are awarded
during fiscal year 1988.
(c)
Contractor
and
subcontractor
means any person, other than a supplier of products, performing any architectural, engineering, or other service
directly related to the preparation for
or performance of the construction, alteration, or repair of any public building or public work in the United States
or any territory or possession of the
United States.
(d) Contractor or subcontractor of a foreign country means any contractor or
subcontractor that is a citizen or national of a foreign country, or is controlled directly or indirectly by one or
more citizens or nationals of a foreign
country.
(e) Service of a foreign country means
any service provided by a person that
is a citizen or national of a foreign
country, or is controlled by one or
more citizens or nationals of a foreign
country.
(f) Product of a foreign country means
construction materials, i.e., articles,
materials, and supplies brought to the
construction site for incorporation into
the public works project. A product is
considered to have been produced in a
foreign country if more than fifty percent of the total cost of the product is
allocable to production or manufacture
in the foreign country.
(g) Foreign country means a country
included in the list of countries that
discriminate against U.S. firms published by the U.S.T.R.
30.9 Citizenship: Direct or indirect
control.
A contractor, subcontractor, or person providing a service shall be considered to be a citizen or national of a foreign country, or controlled directly or
indirectly by citizens or nationals of a
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30.11
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30.15
(End of provision)
30.15 Restrictions on Federal public
works projects.
The contracting officer shall insert
the following clause in solicitations
and contracts as prescribed at 30.11(a)
through (b) of this part:
RESTRICTIONS ON FEDERAL PUBLIC WORKS
PROJECTS
(a) Definitions. The definitions pertaining
to this clause are those that are set forth in
49 CFR 30.730.9
(b) General. This clause implements the
procurement provisions contained in the
Continuing Resolution on the Fiscal Year
1988 Budget, Public Law No. 100202, and the
Airport and Airway Safety and Capacity Expansion Act of 1987, Public Law No. 100223.
(c) Restrictions. The Contractor shall not
knowingly enter into any subcontract under
this contract: (1) With a subcontractor of a
foreign country included on the list of countries that discriminate against U.S. firms
published by the United States Trade Representative (U.S.T.R.); or (2) for the supply
of any product for use on the Federal Public
works project under this contract that is
produced or manufactured in a foreign country included on the list of countries that discriminate against U.S. firms published by
the U.S.T.R.
(d) Certification. The Contractor may rely
upon the certification of a prospective subcontractor that it is not a subcontractor of a
foreign country included on the list of countries that discriminates against U.S. firms
published by the U.S.T.R. and that products
supplied by such subcontractor for use on
the Federal public works project under this
contract are not products of a foreign country included on the list of countries that discriminate against U.S. firms published by
the U.S.T.R., unless the contractor has
knowledge that the certification is erroneous.
(e) Erroneous certification. The certification in paragraph (b) of the provision entitled Restriction on Federal Public Works
ProjectsCertification, is a material representation of fact upon which reliance was
placed when making the award. If it is later
determined that the Contractor knowingly
rendered an erroneous certification, in addition to other remedies available to the Government, the Contracting Officer may cancel
this contract for default at no cost to the
Government.
(f) Cancellation. Unless the restrictions of
this clause are waived as provided in paragraph (e) of the provision entitled Restriction on Federal Public Works ProjectsCertification, if the Contractor knowingly enters into a subcontract with a subcontractor
that is a subcontractor of a foreign country
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30.17
included on the list of countries that discriminate against U.S. firms published by
the U.S.T.R. or that supplies any product for
use on the Federal public works project
under this contract of a foreign country included on the list of countries that discriminate against U.S. firms published by the
U.S.T.R., the Contracting Officer may cancel
this contract for default, at no cost to the
Government.
(g) Subcontracts. The Contractor shall incorporate this clause, without modification,
including this paragraph (g) in all solicitations and subcontracts under this contract:
CERTIFICATION
REGARDING
RESTRICTIONS ON FEDERAL PUBLIC WORKS
PROJECTSSUBCONTRACTORS
(1) The Offeror/Contractor, by submission
of an offer and/or execution of a contract certifies that the Offeror/Contractor is (i) not
an Offeror/Contractor owned or controlled by
one or more citizens or nationals of a foreign
country included on the list of countries
that discriminate against U.S. firms published by the United States Trade Representative (U.S.T.R.) or (2) not supplying any
product for use on the Federal public works
project that is produced or manufactured in
a foreign country included on the list of foreign countries that discriminate against U.S.
firms published by the U.S.T.R.
(End of clause)
30.17 Waivers.
(a) The Secretary may waive the restrictions imposed by section 115 of the
Airport Safety Act on the use of a
product or service in a project if the
Secretary determines that:
(1) Application of the restriction to
such product, service, or project would
not be in the public interest;
(2) Products or services of the same
class or kind are not produced or offered in the United States, or in any
foreign country that is not listed by
the U.S.T.R. in sufficient and reasonable available quantities and of a satisfactory quality; or
(3) Exclusion of such product or service from the project would increase the
cost of the overall project contract by
more than 20 percent.
(b) The President or the Secretary
may waive the restrictions imposed by
section 109(a) of the Continuing Resolution with respect to an individual contract if the President or the Secretary
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31.1
31.20 Disclosure of documents.
31.21 Discovery.
31.22 Exchange of witness lists, statements,
and exhibits.
31.23 Subpoenas for attendance at hearing.
31.24 Protective order.
31.25 Fees.
31.26 Filing, form, and service of papers.
31.27 Computation of time.
31.28 Motions.
31.29 Sanctions.
31.30 The hearing and burden of proof.
31.31 Determining the amount of penalties
and assessments.
31.32 Location of hearing.
31.33 Witnesses.
31.34 Evidence.
31.35 The record.
31.36 Post-hearing briefs.
31.37 Initial decision.
31.38 Reconsideration of initial decision.
31.39 Appeal to authority head.
31.40 Stays ordered by the Department of
Justice.
31.41 Stay pending appeal.
31.42 Judicial review.
31.43 Collection of civil penalties and assessments.
31.44 Right to administrative offset.
31.45 Deposit in Treasury of United States.
31.46 Compromise or settlement.
31.47 Limitations.
AUTHORITY: 31 U.S.C. 38013812.
SOURCE: 53 FR 881, Jan. 14, 1988, unless otherwise noted.
31.1
Sec.
31.1 Basis and purpose.
31.2 Definitions.
31.3 Basis for civil penalties and assessments.
31.4 Investigation.
31.5 Review by the reviewing official.
31.6 Prerequisites for issuing a complaint.
31.7 Complaint.
31.8 Service of complaint.
31.9 Answer.
31.10 Default upon failure to answer.
31.11 Referral of complaint and answer to
the ALJ.
31.12 Notice of hearing.
31.13 Parties to the hearing.
31.14 Separation of functions.
31.15 Ex parte contacts.
31.16 Disqualification of reviewing official
or ALJ.
31.17 Rights of parties.
31.18 Authority of the ALJ.
31.19 Prehearing conferences.
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31.2
31.2 Definitions.
ALJ means an Administrative Law
Judge in the authority appointed pursuant to 5 U.S.C. 3105 or detailed to the
authority pursuant to 5 U.S.C. 3344.
Authority means the Department of
Transportation.
Authority head means the Assistant
Secretary or Deputy Assistant Secretary for Budget and Programs, Department of Transportation.
Benefit means, in the context of
statement, anything of value, including but not limited to any advantage, preference, privilege, license, permit, favorable decision, ruling, status,
or loan guarantee.
Claim means any request, demand, or
submission
(a) Made to the authority for property, services, or money (including
money representing grants, loans, insurance, or benefits);
(b) Made to a recipient of property,
services, or money from the authority
or to a party to a contract with the authority
(1) For property or services if the
United States
(i) Provided such property or services;
(ii) Provided any portion of the funds
for the purchase of such property or
services; or
(iii) Will reimburse such recipient or
party for the purchase of such property
or services; or
(2) For the payment of money (including money representing grants,
loans, insurance, or benefits) if the
United States
(i) Provided any portion of the money
requested or demanded; or
(ii) Will reimburse such recipient or
party for any portion of the money
paid on such request or demand; or
(c) Made to the authority which has
the effect of decreasing an obligation
to pay or account for property, services, or money.
Complaint means the administrative
complaint served by the reviewing official on the defendant under 31.7.
Defendant means any person alleged
in a complaint under 31.7 to be liable
for a civil penalty or assessment under
31.3.
Government means the United States
Government.
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31.3
(3) A claim shall be considered made
to the authority, recipient, or party
when such claim is actually made to an
agent, fiscal intermediary, or other entity, including any State or political
subdivision thereof, acting for or on behalf of the authority, recipient, or
party.
(4) Each claim for property, services,
or money is subject to a civil penalty
regardless of whether such property,
services, or money is actually delivered
or paid.
(5) If the Government has made any
payment (including transferred property or provided services) on a claim, a
person subject to a civil penalty under
paragraph (a)(1) of this section shall
also be subject to an assessment of not
more than twice the amount of such
claim or that portion thereof that is
determined to be in violation of paragraph (a)(1) of this section. Such assessment shall be in lieu of damages
sustained by the Government because
of such claim.
(b) Statements. (1) Except as provided
in paragraph (c) of this section, any
person who makes a written statement
that
(i) The person knows or has reason to
know
(A) Asserts a material fact which is
false, fictitious, or fraudulent; or
(B) Is false, fictitious, or fraudulent
because it omits a material fact that
the person making the statement has a
duty to include in such statement; and
(ii) Contains, or is accompanied by,
an express certification or affirmation
of the truthfulness and accuracy of the
contents of the statement, shall be subject, in addition to any other remedy
that may be prescribed by law, to a
civil penalty of not more than $5,500. 2
(2) Each written representation, certification, or affirmation constitutes a
separate statement.
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31.4
31.4 Investigation.
(a) If an investigating official concludes that a subpoena pursuant to the
authority conferred by 31 U.S.C. 3804(a)
is warranted
(1) The subpoena so issued shall notify the person to whom it is addressed
of the authority under which the subpoena is issued and shall identify the
records or documents sought;
(2) The investigating official may
designate a person to act on his or her
behalf to receive the documents
sought; and
(3) The person receiving such subpoena shall be required to tender to the
investigating official or the person designated to receive the documents a certification that the documents sought
have been produced, or that such documents are not available and the reasons therefor, or that such documents,
suitably identified, have been withheld
based upon the assertion of an identified privilege.
(b) If the investigating official concludes that an action under the Program Fraud Civil Remedies Act may be
warranted, the investigating official
shall submit a report containing the
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31.7
Complaint.
(a) On or after the date the Department of Justice approves the issuance
of a complaint in accordance with 31
U.S.C. 3803(b)(1), the reviewing official
may serve a complaint on the defendant, as provided in 31.8.
(b) The complaint shall state
(1) The allegations of liability
against the defendant, including the
statutory basis for liability, an identification of the claims or statements
that are the basis for the alleged liability, and the reasons why liability allegedly arises from such claims or statements;
(2) The maximum amount of penalties and assessments for which the
defendant may be held liable;
(3) Instructions for filing an answer
to request a hearing, including a specific statement of the defendants right
to request a hearing by filing an answer and to be represented by a representative; and
(4) That failure to file an answer
within 30 days of service of the complaint will result in the imposition of
the maximum amount of penalties and
31.9
assessments without right to appeal, as
provided in 31.10.
(c) At the same time the reviewing
official serves the complaint, he or she
shall serve the defendant with a copy
of these regulations.
31.8 Service of complaint.
(a) Service of a complaint must be
made by certified or registered mail or
by delivery in any manner authorized
by Rule 4(d) of the Federal Rules of
Civil Procedure. Service of a complaint
is complete upon receipt.
(b) Proof of service, stating the name
and address of the person on whom the
complaint was served, and the manner
and date of service, may be made by
(1) Affidavit of the individual serving
the complaint by delivery;
(2) A United States Postal Service return receipt card acknowledging receipt; or
(3) Written acknowledgment of receipt by the defendant or his or her
representative.
31.9 Answer.
(a) The defendant may request a
hearing by serving an answer on the reviewing official within 30 days of service of the complaint. Service of an answer shall be made by delivering a copy
to the reviewing official or by placing a
copy in the United States mail, postage
prepaid and addressed to the reviewing
official. Service of an answer is complete upon such delivery or mailing. An
answer shall be deemed to be a request
for hearing.
(b) In the answer, the defendant
(1) Shall admit or deny each of the
allegations of liability made in the
complaint;
(2) Shall state any defense on which
the defendant intends to rely;
(3) May state any reasons why the defendant contends that the penalties
and assessments should be less than
the statutory maximum; and
(4) Shall state the name, address, and
telephone number of the person authorized by the defendant to act as defendants representative, if any.
(c) If the defendant is unable to file
an answer meeting the requirements of
paragraph (b) of this section within the
time provided, the defendant may, before the expiration of 30 days from
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31.10
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31.17
and opportunity for all parties to participate. This provision does not prohibit a person or party from inquiring
about the status of a case or asking
routine questions concerning administrative functions or procedures.
31.16 Disqualification
official or ALJ.
of
reviewing
Rights of parties.
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31.18
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31.21
Discovery.
31.22
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged information.
(4) The burden of showing that discovery should be allowed is on the
party seeking discovery.
(5) The ALJ may grant discovery subject to a protective order under 31.24.
(e) Depositions. (1) If a motion for deposition is granted, the ALJ shall issue
a subpoena for the deponent, which
may require the deponent to produce
documents. The subpoena shall specify
the time and place at which the deposition will be held.
(2) The party seeking to depose shall
serve the subpoena in the manner prescribed in 31.8.
(3) The deponent may file a motion to
quash the subpoena or a motion for a
protective order within ten days of
service. If the ALJ has not acted on
such a motion by the return date, such
date shall be suspended pending the
ALJs final action on the motion.
(4) The party seeking to depose shall
provide for the taking of a verbatim
transcript of the deposition, which it
shall make available to all other parties for inspection and copying.
(f) Each party shall bear its own
costs of discovery.
31.22 Exchange of witness lists, statements, and exhibits.
(a) At least 15 days before the hearing or at such other time as may be ordered by the ALJ, the parties shall exchange witness lists, copies of prior
statements of proposed witnesses, and
copies of proposed hearing exhibits, including copies of any written statements that the party intends to offer
in lieu of live testimony in accordance
with 31.33(b). At the time the above
documents are exchanged, any party
that intends to rely on the transcript
of deposition testimony in lieu of live
testimony at the hearing, if permitted
by the ALJ, shall provide each party
with a copy of the specific pages of the
transcript it intends to introduce into
evidence.
(b) If a party objects, the ALJ shall
not admit into evidence the testimony
of any witness whose name does not appear on the witness list of any exhibit
not provided to the opposing party as
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31.23
31.24
Protective order.
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31.29
(b) When the period of time allowed
is less than seven days, intermediate
Saturdays, Sundays, and legal holidays
observed by the Federal government
shall be excluded from the computation.
(c) Where a document has been served
or issued by placing it in the United
States mail, an additional five days
will be added to the time permitted for
any responses.
31.28 Motions.
(a) Any application to the ALJ for an
order or ruling shall be by motion. Motions shall state the relief sought, the
authority relied upon, and the facts alleged, and shall be filed and served on
all other parties.
(b) Except for motions made during a
prehearing conference or at the hearing, all motions shall be in writing.
The ALJ may require that oral motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other time as
may be fixed by the ALJ, any party
may file a response to such motion.
(d) The ALJ may not grant a written
motion before the time for filing response thereto has expired, except upon
consent of the parties or following a
hearing on the motion, but may overrule or deny such motion without
awaiting a response.
(e) The ALJ shall make a reasonable
effort to dispose of all outstanding motions prior to the beginning of the
hearing.
(f) Except as provided by 31.21(e)(3)
and 31.23(f), which concern subpoenas,
the filing or pendency of a motion shall
not automatically alter or extend a
deadline or return date.
31.29 Sanctions.
(a) The ALJ may sanction a person,
including any party or representative,
for
(1) Failing to comply with an order,
rule, or procedure governing the proceeding;
(2) Failing to prosecute or defend an
action; or
(3) Engaging in other misconduct
that interferes with the speedy, orderly, or fair conduct of the hearing.
(b) Sanctions include but are not limited to those specifically set forth in
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31.30
paragraph (c), (d), and (e) of this section. Any such sanction shall reasonably relate to the severity and nature
of the failure or misconduct.
(c) When a party fails to comply with
an order, including an order for taking
a deposition, the production of evidence within the partys control, or a
request for admission, the ALJ may
(1) Draw an inference in favor of the
requesting party with regard to the information sought;
(2) In the case of requests for admission, deem each matter of which an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from introducing
evidence concerning, or otherwise relying upon, testimony relating to the information sought; and
(4) Strike any part of the pleadings
or other submissions of the party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this part commenced by service of a notice of hearing, the ALJ may dismiss the action or
may issue an initial decision imposition penalties and assessments.
(e) The ALJ may refuse to consider
any motion, request, response, brief or
other document which is not filed in a
timely fashion.
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31.33
(b) At the discretion of the ALJ, testimony may be admitted in the form of
a written statement or deposition. Any
such written statement must be provided to all other parties along with
the last known address of such witness,
in a manner which allows sufficient
time for other parties to subpoena such
witness for cross-examination at the
hearing. Prior written statements of
witnesses proposed to testify at the
hearing and deposition transcripts
shall be exchanged as provided in
31.22(a).
(c) The ALJ shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting
evidence so as to (1) make the interrogation and presentation effective for
the ascertainment of the truth, (2)
avoid needless consumption of time,
and (3) protect witnesses from harassment or undue embarrassment.
(d) The ALJ shall permit the parties
to conduct such cross-examination as
may be required for a full and true disclosure of the facts.
(e) At the discretion of the ALJ, a
witness may be cross-examined on matters relevant to the proceeding without
regard to the scope of his or her direct
examination. To the extent permitted
by the ALJ, cross-examination on matters outside the scope of direct examination shall be conducted in the manner of direct examination and may proceed by leading questions only if the
witness is a hostile witness, an adverse
party, or a witness identified with an
adverse party.
(f) Upon motion of any party, the
ALJ shall order witnesses excluded so
that they cannot hear the testimony of
other witnesses. This rule does not authorize exclusion of
(1) A party who is an individual;
(2) In the case of a party that is not
an individual, an officer or employee of
the party (i) appearing for the entity
pro se or (ii) designated by the partys
representative; or
(3) An individual whose presence is
shown by a party to be essential to the
presentation of its case, including an
individual employed by the Government engaged in assisting the representative for the Government.
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31.34
31.34 Evidence.
(a) The ALJ shall determine the admissibility of evidence.
(b) Except as provided in this part,
the ALJ shall not be bound by the Federal Rules of Evidence. However, the
ALJ may apply the Federal Rules of
Evidence where appropriate, e.g., to exclude unreliable evidence.
(c) The ALJ shall exclude irrelevant
and immaterial evidence.
(d) Although relevant, evidence may
be excluded if its probative value is
substantially outweighed by the danger
of unfair prejudice, confusion of the
issues, or by considerations of undue
delay or needless presentation of cumulative evidence.
(e) Although relevant, evidence may
be excluded if it is privileged under
Federal law.
(f) Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule
408 of the Federal Rules of Evidence.
(g) The ALJ shall permit the parties
to introduce rebuttal witnesses and
evidence.
(h) All documents and other evidence
offered or taken for the record shall be
open to examination by all parties, unless otherwise ordered by the ALJ pursuant to 31.24.
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31.39
(c) If the defendant files a timely notice of appeal and the time for filing
motions for reconsideration under
31.38 has expired, the Docket Clerk
shall forward two copies of the notice
of appeal to the authority head, and
shall forward or make available the
record of the proceeding to the authority head.
(d) A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.
(e) The representative for the Government may file a brief in opposition
to exceptions within 30 days of receiving the notice of appeal and accompanying brief.
(f) There is no right to appear personally before the authority head.
(g) There is no right to appeal any interlocutory ruling by the ALJ.
(h) In reviewing the initial decision,
the authority head shall not consider
any objection that was not raised before the ALJ unless a demonstration is
made of extraordinary circumstances
causing the failure to raise the objection.
(i) If any party demonstrates to the
satisfaction of the authority head that
additional evidence not presented at
such hearing is material and that there
were reasonable grounds for the failure
to present such evidence at such hearing, the authority head shall remand
the matter to the ALJ for consideration of such additional evidence.
(j) The authority head may affirm,
reduce, reverse, compromise, remand,
or settle any penalty or assessment determined by the ALJ in any initial decision.
(k) The authority head shall promptly serve each party to the appeal with
a copy of the decision of the authority
head and with a statement describing
the right of any person determined to
be liable for a penalty or assessment to
seek judicial review.
(l) Unless a petition for review is
filed as provided in 31 U.S.C. 3805 after
a defendant has exhausted all administrative remedies under this part and
within 60 days after the date on which
the authority head serves the defendant with a copy of the authority heads
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31.40
Compromise or settlement.
Limitations.
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32.110
Subpart FDefinitions
32.605 Award.
32.610 Controlled substance.
32.615 Conviction.
32.620 Cooperative agreement.
32.625 Criminal drug statute.
32.630 Debarment.
32.635 Drug-free workplace.
32.640 Employee.
32.645 Federal agency or agency.
32.650 Grant.
32.655 Individual.
32.660 Recipient.
32.665 State.
32.670 Suspension.
AUTHORITY: 41 U.S.C. 701 et seq.
SOURCE: 68 FR 66645, Nov. 26, 2003, unless
otherwise noted.
see subparts . . .
A, B and E.
A, C and E.
A, D and E.
32.110 Are any of my Federal assistance awards exempt from this part?
This part does not apply to any
award that the Secretary of Transportation determines that the application
of this part would be inconsistent with
the international obligations of the
United States or the laws or regulations of a foreign government.
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32.115
32.115 Does this part affect the Federal contracts that I receive?
It will affect future contract awards
indirectly if you are debarred or suspended for a violation of the requirements of this part, as described in 32.
510(c). However, this part does not
apply directly to procurement contracts. The portion of the Drug-Free
Workplace Act of 1988 that applies to
Federal procurement contracts is carried out through the Federal Acquisition Regulation in chapter 1 of Title 48
of the Code of Federal Regulations (the
drug-free workplace coverage currently
is in 48 CFR part 23, subpart 23.5).
You must establish an ongoing drugfree awareness program to inform employees about
(a) The dangers of drug abuse in the
workplace;
(b) Your policy of maintaining a
drug-free workplace;
(c) Any available drug counseling, rehabilitation, and employee assistance
programs; and
(d) The penalties that you may impose upon them for drug abuse violations occurring in the workplace.
then you . . .
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then you . . .
32.225 What actions must I take concerning employees who are convicted of drug violations in the
workplace?
There are two actions you must take
if an employee is convicted of a drug
violation in the workplace:
(a) First, you must notify Federal
agencies if an employee who is engaged
in the performance of an award informs
you about a conviction, as required by
32.205(c)(2), or you otherwise learn of
the conviction. Your notification to
the Federal agencies mustl
(1) Be in writing;
(2) Include the employees position
title;
(3) Include the identification number(s) of each affected award;
(4) Be sent within ten calendar days
after you learn of the conviction; and
(5) Be sent to every Federal agency
on whose award the convicted employee was working. It must be sent to
every awarding official or his or her official designee, unless the Federal
agency has specified a central point for
the receipt of the notices.
(b) Second, within 30 calendar days of
learning about an employees conviction, you must eitherl
(1) Take appropriate personnel action
against the employee, up to and including termination, consistent with the
requirements of the Rehabilitation Act
of 1973 (29 U.S.C. 794), as amended; or
(2) Require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for these purposes by a Federal,
State or local health, law enforcement,
or other appropriate agency.
32.300
(1) To the DOT official that is making the award, either at the time of application or upon award; or
(2) In documents that you keep on
file in your offices during the performance of the award, in which case you
must make the information available
for inspection upon request by DOT officials or their designated representatives.
(b) Your workplace identification for
an award must include the actual address of buildings (or parts of buildings) or other sites where work under
the award takes place. Categorical descriptions may be used (e.g., all vehicles of a mass transit authority or
State highway department while in operation, State employees in each local
unemployment office, performers in
concert halls or radio studios).
(c) If you identified workplaces to
the DOT awarding official at the time
of application or award, as described in
paragraph (a)(1) of this section, and
any workplace that you identified
changes during the performance of the
award, you must inform the DOT
awarding official.
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32.301
[Reserved]
Subpart FDefinitions
32.605
Award.
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32.650
nection with a specific award at which
employees of the recipient are prohibited from engaging in the unlawful
manufacture, distribution, dispensing,
possession, or use of a controlled substance.
32.640 Employee.
(a) Employee means the employee of a
recipient directly engaged in the performance of work under the award, including
(1) All direct charge employees;
(2) All indirect charge employees, unless their impact or involvement in the
performance of work under the award
is insignificant to the performance of
the award; and
(3) Temporary personnel and consultants who are directly engaged in the
performance of work under the award
and who are on the recipients payroll.
(b) This definition does not include
workers not on the payroll of the recipient (e.g., volunteers, even if used to
meet a matching requirement; consultants or independent contractors not on
the payroll; or employees of subrecipients or subcontractors in covered
workplaces).
32.645 Federal agency or agency.
Federal agency or agency means any
United States executive department,
military department, government corporation, government controlled corporation, any other establishment in
the executive branch (including the Executive Office of the President), or any
independent regulatory agency.
32.650 Grant.
Grant means an award of financial assistance that, consistent with 31 U.S.C.
6304, is used to enter into a relationship
(a) The principal purpose of which is
to transfer a thing of value to the recipient to carry out a public purpose of
support or stimulation authorized by a
law of the United States, rather than
to acquire property or services for the
Federal Governments direct benefit or
use; and
(b) In which substantial involvement
is not expected between the Federal
agency and the recipient when carrying
out the activity contemplated by the
award.
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32.655
32.655 Individual.
Individual means a natural person.
32.660 Recipient.
Recipient means any individual, corporation, partnership, association, unit
of government (except a Federal agency) or legal entity, however organized,
that receives an award directly from a
Federal agency.
32.665 State.
State means any of the States of the
United States, the District of Columbia, the Commonwealth of Puerto Rico,
or any territory or possession of the
United States.
32.670 Suspension.
Suspension means an action taken by
a Federal agency that immediately
prohibits a recipient from participating in Federal Government procurement contracts and covered nonprocurement transactions for a temporary period, pending completion of
an investigation and any judicial or administrative proceedings that may
ensue. A recipient so prohibited is suspended, in accordance with the Federal
Acquisition Regulation for procurement contracts (48 CFR part 9, subpart
9.4) and the common rule, Governmentwide Debarment and Suspension (Nonprocurement), that implements Executive Order 12549 and Executive Order
12689. Suspension of a recipient is a distinct and separate action from suspension of an award or suspension of payments under an award.
Subpart AGeneral
Sec.
37.1 Purpose.
37.3 Definitions.
37.5 Nondiscrimination.
37.7 Standards for accessible vehicles.
37.9 Standards for accessible transportation
facilities.
37.11 Administrative enforcement.
37.13 Effective date for certain vehicle specifications.
37.15 Temporary suspension of certain detectable warning requirements.
37.1637.19 [Reserved]
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37.1
37.163 Keeping vehicle lifts in operative condition: Public entities.
37.165 Lift and securement use.
37.167 Other service requirements.
37.169 Interim requirements for over-theroad bus service operated by private entities.
37.171 Equivalency requirement for demand
responsive service operated by private
entities not primarily engaged in the
business of transporting people.
37.173 Training requirements.
Subpart AGeneral
37.1 Purpose.
The purpose of this part is to implement the transportation and related
provisions of titles II and III of the
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37.3
37.3
Definitions.
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37.3
ganic brain syndrome, emotional or
mental illness, and specific learning
disabilities;
(iii) The term physical or mental impairment includes, but is not limited to,
such contagious or noncontagious diseases and conditions as orthopedic, visual, speech, and hearing impairments;
cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer,
heart disease, diabetes, mental retardation, emotional illness, specific
learning disabilities, HIV disease, tuberculosis, drug addiction and alcoholism;
(iv) The phrase physical or mental impairment does not include homosexuality or bisexuality.
(2) The phrase major life activities
means functions such as caring for
ones self, performing manual tasks,
walking, seeing, hearing, speaking,
breathing, learning, and work.
(3) The phrase has a record of such an
impairment means has a history of, or
has been misclassified as having, a
mental or physical impairment that
substantially limits one or more major
life activities.
(4) The phrase is regarded as having
such an impairment means
(i) Has a physical or mental impairment that does not substantially limit
major life activities, but which is
treated by a public or private entity as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits a major
life activity only as a result of the attitudes of others toward such an impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this definition
but is treated by a public or private entity as having such an impairment.
(5) The term disability does not include
(i) Transvestism, transsexualism,
pedophilia, exhibitionism, voyeurism,
gender identity disorders not resulting
from physical impairments, or other
sexual behavior disorders;
(ii) Compulsive gambling, kleptomania, or pyromania;
(iii) Psychoactive substance abuse
disorders resulting from the current illegal use of drugs.
Facility means all or any portion of
buildings, structures, sites, complexes,
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37.3
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37.3
Vanpool means a voluntary commuter ridesharing arrangement, using
vans with a seating capacity greater
than 7 persons (including the driver) or
buses, which provides transportation to
a group of individuals traveling directly from their homes to their regular places of work within the same
geographical area, and in which the
commuter/driver does not receive compensation beyond reimbursement for
his or her costs of providing the service.
Vehicle, as the term is applied to private entities, does not include a rail
passenger car, railroad locomotive,
railroad freight car, or railroad caboose, or other rail rolling stock described in section 242 of title III of the
Act.
Wheelchair means a mobility aid belonging to any class of three or fourwheeled devices, usable indoors, designed for and used by individuals with
mobility impairments, whether operated manually or powered. A common
wheelchair is such a device which
does not exceed 30 inches in width and
48 inches in length measured two
inches above the ground, and does not
weigh more than 600 pounds when occupied.
[56 FR 45621, Sept. 6, 1991, as amended at 58
FR 63101, Nov. 30, 1993; 61 FR 25415, May 21,
1996; 63 FR 51690, Sept. 28, 1998]
EFFECTIVE DATE NOTE: At 76 FR 57935,
Sept. 19, 2011, 37.3 was amended by adding
the definition Direct threat and revising
the definition Wheelchair, effective Oct.
19, 2011. For the convenience of the user, the
added and revised text is set forth as follows:
37.3
Definitions.
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37.5
37.5 Nondiscrimination.
(a) No entity shall discriminate
against an individual with a disability
in connection with the provision of
transportation service.
(b) Notwithstanding the provision of
any special transportation service to
individuals with disabilities, an entity
shall not, on the basis of disability,
deny to any individual with a disability the opportunity to use the entitys transportation service for the general public, if the individual is capable
of using that service.
(c) An entity shall not require an individual with a disability to use designated priority seats, if the individual
does not choose to use these seats.
(d) An entity shall not impose special
charges, not authorized by this part, on
individuals with disabilities, including
individuals who use wheelchairs, for
providing services required by this part
or otherwise necessary to accommodate them.
(e) An entity shall not require that
an individual with disabilities be accompanied by an attendant.
(f) Private entities that are primarily
engaged in the business of transporting
people and whose operations affect
commerce
shall
not
discriminate
against any individual on the basis of
disability in the full and equal enjoyment of specified transportation services. This obligation includes, with respect to the provision of transportation
services, compliance with the requirements of the rules of the Department
of Justice concerning eligibility criteria, making reasonable modifications, providing auxiliary aids and
services, and removing barriers (28 CFR
36.30136.306).
(g) An entity shall not refuse to serve
an individual with a disability or require anything contrary to this part
because its insurance company conditions coverage or rates on the absence
of individuals with disabilities or requirements contrary to this part.
(h) It is not discrimination under this
part for an entity to refuse to provide
service to an individual with disabilities because that individual engages in
violent, seriously disruptive, or illegal
conduct. However, an entity shall not
refuse to provide service to an individual with disabilities solely because
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37.9
this part) shall comply with 38.23 and
subpart G of part 38 of this title.
[56 FR 45621, Sept. 6, 1991, as amended at 58
FR 63101, Nov. 30, 1993; 61 FR 25416, May 21,
1996]
411
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37.9
the requirements set forth in appendices B and D to 36 CFR part 1191 and
appendix A to this part.
(d)(1) For purposes of implementing
the equivalent facilitation provision in
ADA Chapter 1, Section 103, of appendix B to 36 CFR part 1191, the following
parties may submit to the Administrator of the applicable operating administration a request for a determination of equivalent facilitation:
(i)(A) A public or private entity that
provides transportation facilities subject to the provisions of subpart C of
this part, or other appropriate party
with the concurrence of the Administrator.
(B) With respect to airport facilities,
an entity that is an airport operator
subject to the requirements of 49 CFR
part 27 or regulations implementing
the Americans with Disabilities Act,
an air carrier subject to the requirements of 14 CFR part 382, or other appropriate party with the concurrence
of the Administrator.
(ii) The manufacturer of a product or
accessibility feature to be used in a
transportation facility or facilities.
(2) The requesting party shall provide
the following information with its request:
(i) Entity name, address, contact person and telephone;
(ii) Specific provision(s) of appendices B and D to 36 CFR part 1191 or appendix A to this part concerning which
the entity is seeking a determination
of equivalent facilitation.
(iii) [Reserved]
(iv) Alternative method of compliance, with demonstration of how the
alternative meets or exceeds the level
of accessibility or usability provided in
appendices B and D to 36 CFR part 1191
or appendix A to this part; and
(v) Documentation of the public participation used in developing an alternative method of compliance.
(3) In the case of a request by a public entity that provides transportation
facilities (including an airport operator), or a request by an air carrier
with respect to airport facilities, the
required public participation shall include the following:
(i) The entity shall contact individuals with disabilities and groups representing them in the community. Con-
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37.11
Administrative enforcement.
37.21
37.15
37.1637.19
[Reserved]
Subpart BApplicability
37.21
Applicability: General.
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37.23
414
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Vanpools.
37.33
37.37
37.35 Supplemental service for other
transportation modes.
(a) Transportation service provided
by bus or other vehicle by an intercity
commuter or rail operator, as an extension of or supplement to its rail service, and which connects an intercity
rail station and limited other points, is
subject to the requirements of this part
for fixed route commuter bus service
operated by a public entity.
(b) Dedicated bus service to commuter rail systems, with through
ticketing arrangements and which is
available only to users of the commuter rail system, is subject to the requirements of this part for fixed route
commuter bus service operated by a
public entity.
37.37 Other applications.
(a) A private entity does not become
subject to the requirements of this part
for public entities, because it receives
an operating subsidy from, is regulated
by, or is granted a franchise or permit
to operate by a public entity.
(b) Shuttle systems and other transportation services operated by privately-owned hotels, car rental agencies, historical or theme parks, and
other public accommodations are subject to the requirements of this part
for private entities not primarily engaged in the business of transporting
people. Either the requirements for demand responsive or fixed route service
may apply, depending upon the characteristics of each individual system of
transportation.
(c) Conveyances used by members of
the public primarily for recreational
purposes rather than for transportation (e.g., amusement park rides, ski
lifts, or historic rail cars or trolleys
operated in museum settings) are not
subject to the requirements of this
part. Such conveyances are subject to
Department of Justice regulations implementing title II or title III of the
ADA (28 CFR part 35 or 36), as applicable.
(d) Transportation services provided
by an employer solely for its own employees are not subject to the requirements of this part. Such services are
subject to the regulations of the Equal
Employment Opportunity Commission
under title I of the ADA (29 CFR part
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37.39
1630) and, with respect to public entities, the regulations of the Department
of Justice under title II of the ADA (28
CFR part 35).
(e) Transportation systems operated
by private clubs or establishments exempted from coverage under title II of
the Civil Rights Act of 1964 (42 U.S.C.
2000a(e)) or religious organizations or
entities controlled by religious organizations are not subject to the requirements of this part.
(f) If a parent private company is not
primarily engaged in the business of
transporting people, or is not a place of
public accommodation, but a subsidiary company or an operationally
distinct segment of the company is primarily engaged in the business of
transporting people, the transportation
service provided by the subsidiary or
segment is subject to the requirements
of this part for private entities primarily engaged in the business of
transporting people.
(g) High-speed rail systems operated
by public entities are subject to the requirements of this part governing
intercity rail systems.
(h) Private rail systems providing
fixed route or specified public transportation service are subject to the requirements of 37.107 with respect to
the acquisition of rail passenger cars.
Such systems are subject to the requirements of the regulations of the
Department of Justice implementing
title III of the ADA (28 CFR part 36)
with respect to stations and other facilities.
37.39
[Reserved]
Subpart CTransportation
Facilities
37.41 Construction of transportation
facilities by public entities.
(a) A public entity shall construct
any new facility to be used in providing
designated public transportation services so that the facility is readily accessible to and usable by individuals
with disabilities, including individuals
who use wheelchairs. This requirement
also applies to the construction of a
new station for use in intercity or commuter rail transportation. For purposes of this section, a facility or sta-
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37.42
sonnel would be trained and deployed
to ensure that service to individuals
with disabilities is provided in an integrated, safe, timely, and reliable manner.
(3) Before proceeding with constructing or modifying a station platform covered by paragraphs (c) and (d)
of this section, the railroad must obtain approval from the FTA (for commuter rail systems) or the FRA (for
intercity rail systems). The agencies
will evaluate the proposed plan and
may approve, disapprove, or modify it.
The FTA and the FRA may make this
determination jointly in any situation
in which both a commuter rail system
and an intercity or high-speed rail system use the tracks serving the platform. FTA and FRA will respond to the
railroads plan in a timely manner, in
accordance with the timetable set
forth in paragraphs (d)(3)(i) through
(d)(3)(iii) of this paragraph.
(i) FTA/FRA will provide an initial
written response within 30 days of receiving a railroads written proposal.
This response will say either that the
submission is complete or that additional information is needed.
(ii) Once a complete package, including any requested additional information, is received, as acknowledged by
FRA/FTA in writing, FRA/FTA will
provide a substantive response accepting, rejecting, or modifying the proposal within 120 days.
(iii) If FTA/FRA needs additional
time to consider the railroads proposal, FRA/FTA will provide a written
communication to the railroad setting
forth the reasons for the delay and an
estimate of the additional time (not to
exceed an additional 60 days) that FRA/
FTA expect to take to finalize a substantive response to the proposal.
(iv) In reviewing the plan, FRA and
FTA will consider factors including,
but not limited to, how the proposal
maximizes accessibility to individuals
with disabilities, any obstacles to the
use of a method that could provide better service to individuals with disabilities, the safety and reliability of the
approach and related technology proposed to be used, the suitability of the
means proposed to the station and line
and/or system on which it would be
used, and the adequacy of equipment
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37.43
(iii) Costs associated with providing
accessible telephones (e.g., relocation
of phones to an accessible height, installation of amplification devices or
TDDs);
(iv) Costs associated with relocating
an inaccessible drinking fountain.
(f)(1) When the cost of alterations
necessary to make a path of travel to
the altered area fully accessible is disproportionate to the cost of the overall
alteration, then such areas shall be
made accessible to the maximum extent without resulting in disproportionate costs;
(2) In this situation, the public entity
should give priority to accessible elements that will provide the greatest
access, in the following order:
(i) An accessible entrance;
(ii) An accessible route to the altered
area;
(iii) At least one accessible restroom
for each sex or a single unisex restroom
(where there are one or more restrooms);
(iv) Accessible telephones;
(v) Accessible drinking fountains;
(vi) When possible, other accessible
elements
(e.g.,
parking,
storage,
alarms).
(g) If a public entity performs a series of small alterations to the area
served by a single path of travel rather
than making the alterations as part of
a single undertaking, it shall nonetheless be responsible for providing an accessible path of travel.
(h)(1) If an area containing a primary
function has been altered without providing an accessible path of travel to
that area, and subsequent alterations
of that area, or a different area on the
same path of travel, are undertaken
within three years of the original alteration, the total cost of alteration to
the primary function areas on that
path of travel during the preceding
three year period shall be considered in
determining whether the cost of making that path of travel is disproportionate;
(2) For the first three years after
January 26, 1992, only alterations undertaken between that date and the
date of the alteration at issue shall be
considered in determining if the cost of
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37.51
over the period during which the station is made accessible.
(e) Persons who must share responsibility for station accessibility under
paragraphs (c) and (d) of this section
may, by agreement, allocate their responsibility in a manner different from
that provided in this section.
37.51 Key stations in commuter rail
systems.
(a) The responsible person(s) shall
make key stations on its system readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs. This requirement is separate from and in addition to requirements set forth in 37.43
of this part.
(b) Each commuter authority shall
determine which stations on its system
are key stations. The commuter authority shall identify key stations,
using the planning and public participation process set forth in paragraph
(d) of this section, and taking into consideration the following criteria:
(1)
Stations
where
passenger
boardings exceed average station passenger boardings on the rail system by
at least fifteen percent, unless such a
station is close to another accessible
station;
(2) Transfer stations on a rail line or
between rail lines;
(3) Major interchange points with
other transportation modes, including
stations connecting with major parking facilities, bus terminals, intercity
or commuter rail stations, passenger
vessel terminals, or airports;
(4) End stations, unless an end station is close to another accessible station; and
(5) Stations serving major activity
centers, such as employment or government centers, institutions of higher
education, hospitals or other major
health care facilities, or other facilities that are major trip generators for
individuals with disabilities.
(c)(1) Except as provided in this paragraph, the responsible person(s) shall
achieve accessibility of key stations as
soon as possible, but in no case later
than July 26, 1993, except that an entity is not required to complete installation of detectable warnings required by
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37.59 Differences
in
accessibility
completion dates.
Where different completion dates for
accessible stations are established
under this part for a station or portions of a station (e.g., extensions of
different periods of time for a station
which serves both rapid and commuter
rail systems), accessibility to the following elements of the station shall be
achieved by the earlier of the completion dates involved:
(a) Common elements of the station;
(b) Portions of the facility directly
serving the rail system with the earlier
completion date; and
(c) An accessible path from common
elements of the station to portions of
the facility directly serving the rail
system with the earlier completion
date.
37.61 Public transportation programs
and activities in existing facilities.
(a) A public entity shall operate a
designated public transportation program or activity conducted in an existing facility so that, when viewed in its
entirety, the program or activity is
readily accessible to and usable by individuals with disabilities.
(b) This section does not require a
public entity to make structural
changes to existing facilities in order
to make the facilities accessible by individuals who use wheelchairs, unless
and to the extent required by 37.43
(with respect to alterations) or 37.47
37.71
or 37.51 of this part (with respect to
key stations). Entities shall comply
with other applicable accessibility requirements for such facilities.
(c) Public entities, with respect to facilities that, as provided in paragraph
(b) of this section, are not required to
be made accessible to individuals who
use wheelchairs, are not required to
provide to such individuals services
made available to the general public at
such facilities when the individuals
could not utilize or benefit from the
services.
37.6337.69
[Reserved]
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37.73
37.73 Purchase or lease of used nonrail vehicles by public entities operating fixed route systems.
(a) Except as provided elsewhere in
this section, each public entity operating a fixed route system purchasing
or leasing, after August 25, 1990, a used
bus or other used vehicle for use on the
system, shall ensure that the vehicle is
readily accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.
(b) A public entity may purchase or
lease a used vehicle for use on its fixed
route system that is not readily accessible to and usable by individuals with
disabilities if, after making demonstrated good faith efforts to obtain
an accessible vehicle, it is unable to do
so.
(c) Good faith efforts shall include at
least the following steps:
(1) An initial solicitation for used vehicles specifying that all used vehicles
are to be lift-equipped and otherwise
accessible to and usable by individuals
with disabilities, or, if an initial solicitation is not used, a documented communication so stating;
(2) A nationwide search for accessible
vehicles, involving specific inquiries to
used vehicle dealers and other transit
providers; and
(3) Advertising in trade publications
and contacting trade associations.
(d) Each public entity purchasing or
leasing used vehicles that are not readily accessible to and usable by individuals with disabilities shall retain documentation of the specific good faith efforts it made for three years from the
date the vehicles were purchased.
These records shall be made available,
on request, to the FTA Administrator
and the public.
37.75 Remanufacture of non-rail vehicles and purchase or lease of remanufactured non-rail vehicles by
public entities operating fixed
route systems.
(a) This section applies to any public
entity operating a fixed route system
which takes one of the following actions:
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37.77
37.77 Purchase or lease of new nonrail vehicles by public entities operating a demand responsive system
for the general public.
(a) Except as provided in this section,
a public entity operating a demand responsive system for the general public
making a solicitation after August 25,
1990, to purchase or lease a new bus or
other new vehicle for use on the system, shall ensure that the vehicle is
readily accessible to and usable by individuals with disabilities, including
individuals who use wheelchairs.
(b) If the system, when viewed in its
entirety, provides a level of service to
individuals with disabilities, including
individuals who use wheelchairs, equivalent to the level of service it provides
to individuals without disabilities, it
may purchase new vehicles that are
not readily accessible to and usable by
individuals with disabilities.
(c) For purposes of this section, a demand responsive system, when viewed
in its entirety, shall be deemed to provide equivalent service if the service
available to individuals with disabilities, including individuals who use
wheelchairs, is provided in the most integrated setting appropriate to the
needs of the individual and is equivalent to the service provided other individuals with respect to the following
service characteristics:
(1) Response time;
(2) Fares;
(3) Geographic area of service;
(4) Hours and days of service;
(5) Restrictions or priorities based on
trip purpose;
(6) Availability of information and
reservations capability; and
(7) Any constraints on capacity or
service availability.
(d) A public entity receiving FTA
funds under section 18 or a public entity in a small urbanized area which receives FTA funds under Section 9 from
a state administering agency rather
than directly from FTA, which determines that its service to individuals
with disabilities is equivalent to that
provided other persons shall, before
any procurement of an inaccessible vehicle, file with the appropriate state
program office a certificate that it provides equivalent service meeting the
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37.79
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37.87
good faith efforts to obtain an accessible vehicle, it is unable to do so.
(c) Good faith efforts shall include at
least the following steps:
(1) An initial solicitation for used vehicles specifying that all used vehicles
accessible to and usable by individuals
with disabilities;
(2) A nationwide search for accessible
vehicles, involving specific inquiries to
used vehicle dealers and other transit
providers; and
(3) Advertising in trade publications
and contacting trade associations.
(d) When Amtrak or a commuter authority leases a used intercity or commuter rail car for a period of seven
days or less, Amtrak or the commuter
authority may make and document
good faith efforts as provided in this
paragraph instead of in the ways provided in paragraph (c) of this section:
(1) By having and implementing, in
its agreement with any intercity railroad or commuter authority that
serves as a source of used intercity or
commuter rail cars for a lease of seven
days or less, a provision requiring that
the lessor provide all available accessible rail cars before providing any inaccessible rail cars.
(2) By documenting that, when there
is more than one source of intercity or
commuter rail cars for a lease of seven
days or less, the lessee has obtained all
available accessible intercity or commuter rail cars from all sources before
obtaining inaccessible intercity or
commuter rail cars from any source.
(e) Amtrak and commuter authorities purchasing or leasing used intercity or commuter rail cars that are not
readily accessible to and usable by individuals with disabilities shall retain
documentation of the specific good
faith efforts that were made for three
years from the date the cars were purchased. These records shall be made
available, on request, to the Federal
Railroad Administration or FTA Administrator,
as
applicable.
These
records shall be made available to the
public, on request.
[56 FR 45621, Sept. 6, 1991, as amended at 58
FR 63102, Nov. 30, 1993]
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37.89
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[Reserved]
37.103
tirety, meets the standard for equivalent service of 37.105 of this part.
(e) Demand Responsive System, Vehicle
Capacity of 16 or Fewer. Entities providing demand responsive transportation covered under this section are
not specifically required to ensure that
new vehicles with seating capacity of
16 or fewer are accessible to individuals
with wheelchairs. These entities are required to ensure that their systems,
when viewed in their entirety, meet
the equivalent service requirements of
37.171 and 37.105, regardless of whether or not the entities purchase a new
vehicle.
[56 FR 45621, Sept. 6, 1991, as amended at 61
FR 25416, May 21, 1996]
37.103 Purchase or lease of new nonrail vehicles by private entities primarily engaged in the business of
transporting people.
(a) Application. This section applies
to all acquisitions of new vehicles by
private entities which are primarily
engaged in the business of transporting
people and whose operations affect
commerce, in which a solicitation for
the vehicle is made (except as provided
in paragraph (d) of this section) after
August 25, 1990.
(b) Fixed route systems. If the entity
operates a fixed route system, and purchases or leases a new vehicle other
than an automobile, a van with a seating capacity of less than eight persons
(including the driver), or an over-theroad bus, it shall ensure that the vehicle is readily accessible to and usable
by individuals with disabilities, including individuals who use wheelchairs.
(c) Demand responsive systems. If the
entity operates a demand responsive
system, and purchases or leases a new
vehicle other than an automobile, a
van with a seating capacity of less
than eight persons (including the driver), or an over-the-road bus, it shall ensure that the vehicle is readily accessible to and usable by individuals with
disabilities, including individuals who
use wheelchairs, unless the system,
when viewed in its entirety, meets the
standard for equivalent service of
37.105 of this part.
(d) Vans with a capacity of fewer than
8 persons. If the entity operates either
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37.105
a fixed route or demand responsive system, and purchases or leases a new van
with a seating capacity of fewer than
eight persons including the driver (the
solicitation for the vehicle being made
after February 25, 1992), the entity
shall ensure that the vehicle is readily
accessible to and usable by individuals
with disabilities, including individuals
who use wheelchairs, unless the system, when viewed in its entirety, meets
the standard for equivalent service of
37.105 of this part.
EFFECTIVE DATE NOTE: At 76 FR 57936,
Sept. 19, 2011, 37.103(b) and (c) were amended
by the removal of the words or an over-theroad bus,, effective Oct. 19, 2011.
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[Reserved]
eligibility:
37.123
individuals may be considered in a public entitys request for an undue financial burden waiver under 37.15137.155
of this part.
(e) The following individuals are ADA
paratransit eligible:
(1) Any individual with a disability
who is unable, as the result of a physical or mental impairment (including a
vision impairment), and without the
assistance of another individual (except the operator of a wheelchair lift or
other boarding assistance device), to
board, ride, or disembark from any vehicle on the system which is readily accessible to and usable individuals with
disabilities.
(2) Any individual with a disability
who needs the assistance of a wheelchair lift or other boarding assistance
device and is able, with such assistance, to board, ride and disembark
from any vehicle which is readily accessible to and usable by individuals
with disabilities if the individual wants
to travel on a route on the system during the hours of operation of the system at a time, or within a reasonable
period of such time, when such a vehicle is not being used to provide designated public transportation on the
route.
(i) An individual is eligible under this
paragraph with respect to travel on an
otherwise accessible route on which
the boarding or disembarking location
which the individual would use is one
at which boarding or disembarking
from the vehicle is precluded as provided in 37.167(g) of this part.
(ii) An individual using a common
wheelchair is eligible under this paragraph if the individuals wheelchair
cannot be accommodated on an existing vehicle (e.g., because the vehicles
lift does not meet the standards of part
38 of this title), even if that vehicle is
accessible to other individuals with
disabilities and their mobility wheelchairs.
(iii) With respect to rail systems, an
individual is eligible under this paragraph if the individual could use an accessible rail system, but
(A) There is not yet one accessible
car per train on the system; or
(B) Key stations have not yet been
made accessible.
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37.125
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37.129
37.127 Complementary
service for visitors.
paratransit
37.129
Types of service.
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37.131
tion(s) in which it operates, if the entity does not have legal authority to operate in that area. The entity shall
take all practicable steps to provide
paratransit service to any part of its
service area.
(b) Response time. The entity shall
schedule and provide paratransit service to any ADA paratransit eligible
person at any requested time on a particular day in response to a request for
service made the previous day. Reservations may be taken by reservation
agents or by mechanical means.
(1) The entity shall make reservation
service available during at least all
normal business hours of the entitys
administrative offices, as well as during times, comparable to normal business hours, on a day when the entitys
offices are not open before a service
day.
(2) The entity may negotiate pickup
times with the individual, but the entity shall not require an ADA paratransit eligible individual to schedule a
trip to begin more than one hour before
or after the individuals desired departure time.
(3) The entity may use real-time
scheduling in providing complementary paratransit service.
(4) The entity may permit advance
reservations to be made up to 14 days
in advance of an ADA paratransit eligible individuals desired trips. When an
entity proposes to change its reservations system, it shall comply with the
public
participation
requirements
equivalent to those of 37.137 (b) and
(c).
(c) Fares. The fare for a trip charged
to an ADA paratransit eligible user of
the complementary paratransit service
shall not exceed twice the fare that
would be charged to an individual paying full fare (i.e., without regard to discounts) for a trip of similar length, at
a similar time of day, on the entitys
fixed route system.
(1) In calculating the full fare that
would be paid by an individual using
the fixed route system, the entity may
include transfer and premium charges
applicable to a trip of similar length,
at a similar time of day, on the fixed
route system.
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37.135
vided for in this section. However, only
the cost of service provided for in this
section may be considered in a public
entitys request for an undue financial
burden waiver under 37.15137.155 of
this part.
[56 FR 45621, Sept. 6, 1991, as amended at 61
FR 25416, May 21, 1996; 71 FR 63266, Oct. 30,
2006]
37.133
Subscription service.
of
paratransit
(a) General. Each public entity operating fixed route transportation service, which is required by 37.121 to provide complementary paratransit service, shall develop a paratransit plan.
(b) Initial submission. Except as provided in 37.141 of this part, each entity
shall submit its initial plan for compliance with the complementary paratransit service provision by January 26,
1992, to the appropriate location identified in paragraph (f) of this section.
(c) Annual Updates. Except as provided in this paragraph, each entity
shall submit an annual update to its
plan on January 26 of each succeeding
year.
(1) If an entity has met and is continuing to meet all requirements for
complementary paratransit in 37.121
37.133 of this part, the entity may submit to FTA an annual certification of
continued compliance in lieu of a plan
update. Entities that have submitted a
joint plan under 37.141 may submit a
joint certification under this paragraph. The requirements of 37.137 (a)
and (b), 37.138 and 37.139 do not apply
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37.137
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37.139
which may in whole or in part be used
to meet the requirement for complementary paratransit service; and
(3) A description of the available
paratransit services in paragraphs
(c)(2) and (c)(3) of this section as they
relate to the service criteria described
in 37.131 of this part of service area,
response time, fares, restrictions on
trip purpose, hours and days of service,
and capacity constraints; and to the requirements of ADA paratransit eligibility.
(d) A description of the plan to provide comparable paratransit, including:
(1) An estimate of demand for comparable paratransit service by ADA eligible individuals and a brief description of the demand estimation methodology used;
(2) An analysis of differences between
the paratransit service currently provided and what is required under this
part by the entity(ies) submitting the
plan and other entities, as described in
paragraph (c) of this section;
(3) A brief description of planned
modifications to existing paratransit
and fixed route service and the new
paratransit service planned to comply
with the ADA paratransit service criteria;
(4) A description of the planned comparable paratransit service as it relates
to each of the service criteria described
in 37.131 of this partservice area, absence of restrictions or priorities based
on trip purpose, response time, fares,
hours and days of service, and lack of
capacity constraints. If the paratransit
plan is to be phased in, this paragraph
shall be coordinated with the information being provided in paragraphs (d)(5)
and (d)(6) of this paragraph;
(5) A timetable for implementing
comparable paratransit service, with a
specific date indicating when the
planned service will be completely
operational. In no case may full implementation be completed later than
January 26, 1997. The plan shall include
milestones for implementing phases of
the plan, with progress that can be objectively measured yearly;
(6) A budget for comparable paratransit service, including capital and
operating expenditures over five years.
(e) A description of the process used
to certify individuals with disabilities
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37.149
tation of its plan, pending a determination on its waiver request.
37.145 State comment on plans.
Each state required to receive plans
under 37.135 of this part shall:
(a) Ensure that all applicable section
18 and section 9 recipients have submitted plans.
(b) Certify to FTA that all plans have
been received.
(c) Forward the required certification
with comments on each plan to FTA.
The plans, with comments, shall be
submitted to FTA no later than April
1, 1992, for the first year and April 1 annually thereafter.
(d) The State shall develop comments
to on each plan, responding to the following points:
(1) Was the plan filed on time?
(2) Does the plan appear reasonable?
(3) Are there circumstances that bear
on the ability of the grantee to carry
out the plan as represented? If yes,
please elaborate.
(4) Is the plan consistent with statewide planning activities?
(5) Are the necessary anticipated financial and capital resources identified
in the plan accurately estimated?
37.147 Considerations during FTA review.
In reviewing each plan, at a minimum FTA will consider the following:
(a) Whether the plan was filed on
time;
(b) Comments submitted by the
state, if applicable;
(c) Whether the plan contains responsive elements for each component required under 37.139 of this part;
(d) Whether the plan, when viewed in
its entirety, provides for paratransit
service comparable to the entitys
fixed route service;
(e) Whether the entity complied with
the public participation efforts required by this part; and
(f) The extent to which efforts were
made to coordinate with other public
entities with overlapping or contiguous
service areas or jurisdictions.
37.149 Disapproved plans.
(a) If a plan is disapproved in whole
or in part, FTA will specify which provisions are disapproved. Each entity
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37.151
for
undue
financial
37.153
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37.163
percentage shall be determined by a
statistically valid methodology that
determines the percentage of trips that
are required by this part. The entity
shall submit information concerning
its methodology and the data on which
its percentage is based with its request
for a waiver. Only costs attributable to
ADA-mandated trips may be considered
with respect to a request for an undue
financial burden waiver.
(3) Funds to which the entity would
be legally entitled, but which, as a
matter of state or local funding arrangements, are provided to another
entity and used by that entity to provide paratransit service which is part
of a coordinated system of paratransit
meeting the requirements of this part,
may be counted in determining the
burden associated with the waiver request.
37.15737.159
[Reserved]
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37.165
(b) The entity shall establish a system of regular and frequent maintenance checks of lifts sufficient to determine if they are operative.
(c) The entity shall ensure that vehicle operators report to the entity, by
the most immediate means available,
any failure of a lift to operate in service.
(d) Except as provided in paragraph
(e) of this section, when a lift is discovered to be inoperative, the entity shall
take the vehicle out of service before
the beginning of the vehicles next
service day and ensure that the lift is
repaired before the vehicle returns to
service.
(e) If there is no spare vehicle available to take the place of a vehicle with
an inoperable lift, such that taking the
vehicle out of service will reduce the
transportation service the entity is
able to provide, the public entity may
keep the vehicle in service with an inoperable lift for no more than five days
(if the entity serves an area of 50,000 or
less population) or three days (if the
entity serves an area of over 50,000 population) from the day on which the lift
is discovered to be inoperative.
(f) In any case in which a vehicle is
operating on a fixed route with an inoperative lift, and the headway to the
next accessible vehicle on the route exceeds 30 minutes, the entity shall
promptly provide alternative transportation to individuals with disabilities
who are unable to use the vehicle because its lift does not work.
37.165
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(b) Except as provided in this section, individuals using wheelchairs shall be transported in the entitys vehicles or other conveyances.
(1) With respect to wheelchair/occupant
combinations that are larger or heavier than
those to which the design standards for vehicles and equipment of 49 CFR part 38 refer,
the entity must carry the wheelchair and occupant if the lift and vehicle can accommodate the wheelchair and occupant. The entity may decline to carry a wheelchair/occupant if the combined weight exceeds that of
the lift specifications or if carriage of the
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37.167
37.167
(h) The entity shall not prohibit an
individual with a disability from traveling with a respirator or portable oxygen supply, consistent with applicable
Department of Transportation rules on
the transportation of hazardous materials (49 CFR subtitle B, chapter 1, subchapter C).
(i) The entity shall ensure that adequate time is provided to allow individuals with disabilities to complete
boarding or disembarking from the vehicle.
(j)(1) When an individual with a disability enters a vehicle, and because of
a disability, the individual needs to sit
in a seat or occupy a wheelchair securement location, the entity shall ask
the following persons to move in order
to allow the individual with a disability to occupy the seat or securement location:
(i) Individuals, except other individuals with a disability or elderly persons, sitting in a location designated as
priority seating for elderly and handicapped persons (or other seat as necessary);
(ii) Individuals sitting in or a folddown or other movable seat in a wheelchair securement location.
(2) This requirement applies to light
rail, rapid rail, and commuter rail systems only to the extent practicable.
(3) The entity is not required to enforce the request that other passengers
move from priority seating areas or
wheelchair securement locations.
(4) In all signage designating priority
seating areas for elderly persons and
persons with disabilities, or designating wheelchair securement areas,
the entity shall include language informing persons sitting in these locations that they should comply with requests by transit provider personnel to
vacate their seats to make room for an
individual with a disability. This requirement applies to all fixed route vehicles when they are acquired by the
entity or to new or replacement signage in the entitys existing fixed route
vehicles.
[56 FR 45621, Sept. 6, 1991, as amended at 58
FR 63103, Nov. 30, 1993]
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37.169
(a) Private entities operating overthe-road buses, in addition to compliance with other applicable provisions
of this part, shall provide accessible
service as provided in this section.
(b) The private entity shall provide
assistance, as needed, to individuals
with disabilities in boarding and disembarking, including moving to and
from the bus seat for the purpose of
boarding and disembarking. The private entity shall ensure that personnel
are trained to provide this assistance
safely and appropriately.
(c) To the extent that they can be accommodated in the areas of the passenger compartment provided for passengers personal effects, wheelchairs
or other mobility aids and assistive devices used by individuals with disabilities, or components of such devices,
shall be permitted in the passenger
compartment. When the bus is at rest
at a stop, the driver or other personnel
shall assist individuals with disabilities with the stowage and retrieval of
mobility aids, assistive devices, or
other items that can be accommodated
in the passenger compartment of the
bus.
(d) Wheelchairs and other mobility
aids or assistive devices that cannot be
accommodated in the passenger compartment (including electric wheelchairs) shall be accommodated in the
baggage compartment of the bus, unless the size of the baggage compartment prevents such accommodation.
(e) At any given stop, individuals
with disabilities shall have the opportunity to have their wheelchairs or
other mobility aids or assistive devices
stowed in the baggage compartment
before other baggage or cargo is loaded,
but baggage or cargo already on the
bus does not have to be off-loaded in
order to make room for such devices.
(f) The entity may require up to 48
hours advance notice only for providing boarding assistance. If the individual does not provide such notice,
the entity shall nonetheless provide
the service if it can do so by making a
reasonable effort, without delaying the
bus service.
Training requirements.
37.181
Applicability dates.
This subpart applies to all private entities that operate OTRBs. The requirements of the subpart begin to apply to
large operators beginning October 30,
2000 and to small operators beginning
October 29, 2001.
37.183 Purchase or lease of new
OTRBs by operators of fixed-route
systems.
The following requirements apply to
private entities that are primarily in
the business of transporting people,
whose operations affect commerce, and
that operate a fixed-route system, with
respect to OTRBs delivered to them on
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37.187
enough new OTRBs to replace 50 percent of the OTRBs with which it provides fixed-route service by October 30,
2006 or 100 percent of such OTRBs by
October 29, 2012;
(2) Whether the operator has purchased or leased, between October 28,
1998 and October 30, 2000, a number of
new inaccessible OTRBs significantly
exceeding the number of buses it would
normally obtain in such a period;
(3) The compliance with all requirements of this part by the operator over
the period between October 28, 1998 and
the request for time extension.
37.187
Interline service.
(a) When the general public can purchase a ticket or make a reservation
with one operator for a fixed-route trip
of two or more stages in which another
operator provides service, the first operator must arrange for an accessible
bus, or equivalent service, as applicable, to be provided for each stage of the
trip to a passenger with a disability.
The following examples illustrate the
provisions of this paragraph (a):
Example 1. By going to Operator Xs ticket
office or calling X for a reservation, a passenger can buy or reserve a ticket from
Point A through to Point C, transferring at
intermediate Point B to a bus operated by
Operator Y. Operator X is responsible for
communicating immediately with Operator
Y to ensure that Y knows that a passenger
needing accessible transportation or equivalent service, as applicable, is traveling from
Point B to Point C. By immediate communication, we mean that the ticket or reservation agent for Operator X, by phone, fax,
computer, or other instantaneous means,
contacts Operator Y the minute the reservation or ticketing transaction with the passenger, as applicable, has been completed. It
is the responsibility of each carrier to know
how to contact carriers with which it
interlines (e.g., Operator X must know Operator Ys phone number).
Example 2. Operator X fails to provide the
required information in a timely manner to
Operator Y. Operator X is responsible for
compensating the passenger for the consequent unavailability of an accessible bus
or equivalent service, as applicable, on the
B-C leg of the interline trip.
(b) Each operator retains the responsibility for providing the transportation required by this subpart to the
passenger for its portion of an interline
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37.189
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small
37.193
37.195
ready provided by an accessible bus,
the operator has met this requirement.
(2) Before a date one year from the
date on which this subpart applies to
the operator, an operator which is unable to provide the service specified in
paragraph (a) of this section shall comply with the requirements of 37.169.
(3) Interim service under this paragraph (a) is not required to be provided
by a small operator who is providing
equivalent service to its fixed-route
service as provided in 37.183(b)(2).
(b) Some small fixed-route operators
may never have a fleet 100 percent of
which consists of accessible buses (e.g.,
a small fixed-route operator who exclusively or primarily purchases or leases
used buses). Such an operator must
continue to comply with the requirements of this section with respect to
any service that is not provided entirely with accessible buses.
(c) Before a date one year from the
date on which this subpart applies to
an operator providing demand-responsive service, an operator which is unable to provide the service described in
37.189 shall comply with the requirements of 37.169.
EFFECTIVE DATE NOTE: At 76 FR 57936,
Sept. 19, 2011, 37.193 was amended by removing paragraph (a)(2), removing and reserving
paragraph (c), and redesignating paragraph
(a)(3) as (a)(2), effective Oct. 19, 2011.
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37.197
37.199
[Reserved]
Lift maintenance.
(a) The entity shall establish a system of regular and frequent maintenance checks of lifts sufficient to determine if they are operative.
(b) The entity shall ensure that vehicle operators report to the entity, by
the most immediate means available,
any failure of a lift to operate in service.
(c) Except as provided in paragraph
(d) of this section, when a lift is discovered to be inoperative, the entity shall
take the vehicle out of service before
the beginning of the vehicles next trip
and ensure that the lift is repaired before the vehicle returns to service.
(d) If there is no other vehicle available to take the place of an OTRB with
an inoperable lift, such that taking the
vehicle out of service before its next
trip will reduce the transportation
service the entity is able to provide,
the entity may keep the vehicle in
service with an inoperable lift for no
more than five days from the day on
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37.213
tenance of accessibility features and
equipment, boarding assistance, securement of mobility aids, sensitive
and appropriate interaction with passengers with disabilities, handling and
storage of mobility devices, and familiarity with the requirements of this
subpart. OTRB operators shall provide
refresher training to personnel as needed to maintain proficiency.
37.211 Effect of NHTSA and FHWA
safety rules.
OTRB operators are not required to
take any action under this subpart
that would violate an applicable National Highway Traffic Safety Administration or Federal Highway Administration safety rule.
37.213 Information
quirements.
collection
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37.213
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LOCATIONMODIFICATION TO 206.3 OF
APPENDIX B TO 36 CFR PART 1191
A curb ramp shall have a detectable warning complying with 705. The detectable warning shall extend the full width of the curb
ramp (exclusive of flared sides) and shall extend either the full depth of the curb ramp or
24 inches (610 mm) deep minimum measured
from the back of the curb on the ramp surface.
810.2.2
OF
DIMENSIONSMODIFICATION TO 810.2.2
APPENDIX D TO 36 CFR PART 1191
Bus boarding and alighting areas shall provide a clear length of 96 inches (2440 mm),
measured perpendicular to the curb or vehi-
810.5.3
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APPENDIX C TO PART 37
CERTIFICATIONS
Certification of Equivalent Service
The (name of agency) certifies that its demand responsive service offered to individuals with disabilities, including individuals
who use wheelchairs, is equivalent to the
level and quality of service offered to individuals without disabilities. Such service,
when viewed in its entirety, is provided in
the most integrated setting feasible and is
equivalent with respect to:
(1) Response time;
(2) Fares;
(3) Geographic service area;
(4) Hours and days of service;
(5) Restrictions on trip purpose;
(6) Availability of information and reservation capability; and
(7) Constraints on capacity or service
availability.
In accordance with 49 CFR 37.77, public entities operating demand responsive systems
for the general public which receive financial
assistance under section 18 of the Federal
Transit Act must file this certification with
the appropriate state program office before
procuring any inaccessible vehicle. Such
public entities not receiving FTA funds shall
also file the certification with the appropriate state program office. Such public entities receiving FTA funds under any other
section of the FT Act must file the certification with the appropriate FTA regional office. This certification is valid for no longer
than one year from its date of filing.
llllllllllllllllllllllll
(name of authorized official)
llllllllllllllllllllllll
(title)
llllllllllllllllllllllll
(signature)
MPO Certification of Paratransit Plan
The (name of Metropolitan Planning Organization) hereby certifies that it has reviewed the ADA paratransit plan prepared by
(name of submitting entity (ies)) as required
under 49 CFR part 37. 139(h) and finds it to be
in conformance with the transportation plan
developed under 49 CFR part 613 and 23 CFR
part 450 (the FTA/FHWA joint planning regulation). This certification is valid for one
year.
llllllllllllllllllllllll
signature
llllllllllllllllllllllll
name of authorized official
llllllllllllllllllllllll
title
llllllllllllllllllllllll
date
This is to certify that (name of public entity (ies)) has conducted a survey of existing
paratransit services as required by 49 CFR
37.137 (a).
llllllllllllllllllllllll
signature
llllllllllllllllllllllll
name of authorized official
llllllllllllllllllllllll
title
llllllllllllllllllllllll
date
Included Service Certification
This is to certify that service provided by
other entities but included in the ADA paratransit plan submitted by (name of submitting entity (ies)) meets the requirements of
49 CFR part 37, subpart F providing that
ADA eligible individuals have access to the
service; the service is provided in the manner
represented; and, that efforts will be made to
coordinate the provision of paratransit service offered by other providers.
llllllllllllllllllllllll
signature
llllllllllllllllllllllll
name of authorized official
llllllllllllllllllllllll
title
llllllllllllllllllllllll
date
Joint Plan Certification I
This is to certify that (name of entity covered by joint plan) is committed to providing
ADA paratransit service as part of this coordinated plan and in conformance with the
requirements of 49 CFR part 37, subpart F.
llllllllllllllllllllllll
signature
llllllllllllllllllllllll
name of authorized official
llllllllllllllllllllllll
title
llllllllllllllllllllllll
date
Joint Plan Certification II
This is to certify that (name of entity covered by joint plan) will, in accordance with
49 CFR 37.141, maintain current levels of
paratransit service until the coordinated
plan goes into effect.
llllllllllllllllllllllll
signature
llllllllllllllllllllllll
name of authorized official
llllllllllllllllllllllll
title
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llllllllllllllllllllllll
date
State Certification that Plans have been
Received
This is to certify that all ADA paratransit
plans required under 49 CFR 37.139 have been
received by (state DOT)
llllllllllllllllllllllll
signature
llllllllllllllllllllllll
name of authorized official
llllllllllllllllllllllll
title
llllllllllllllllllllllll
date
Definitions
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ADA definition focuses on a bus with an elevated passenger deck over a baggage compartment (i.e., a Greyhound-type bus).
Other types of buses commonly referred to as
over-the-road buses, which are sometimes
used for commuter bus or other service, do
not come within this definition. Only buses
that do come within the definition are subject to the over-the-road bus exception to accessibility requirements in Title III of the
ADA.
For terminological clarity, we want to
point out that two different words are used
in ADA regulations to refer to devices on
which individuals with hearing impairments
communicate over telephone lines. DOJ uses
the more traditional term telecommunications device for the deaf (TDD). The Access Board uses a newer term, text telephone. The DOT rule uses the terms
interchangably.
The definition of transit facility applies
only with reference to the TDD requirement
of appendix A to this Part. The point of the
definition is to exempt from TDD requirements open structures, like bus shelters, or
facilities which are not used primarily as
transportation stops or terminals. For example, a drug store in a small town may sell
intercity bus tickets, and people waiting for
the bus may even wait for the bus inside the
store. But the drug stores raison detre is
not to be a bus station. Its transportation
function is only incidental. Consequently, its
obligations with respect to TDDs would be
those required of a place of public accommodation by DOJ rules.
A used vehicle means a vehicle which
has prior use; prior, that is, to its acquisition
by its present owner or lessee. The definition
is not relevant to existing vehicles in ones
own fleet, which were obtained before the
ADA vehicle accessibility requirements took
effect.
A vanpool is a voluntary commuter ridesharing arrangement using a van with a
seating capacity of more than seven persons,
including the driver. Carpools are not included in the definition. There are some systems using larger vehicles (e.g., buses) that
operate, in effect, as vanpools. This definition encompasses such systems. Vanpools
are used for daily work trips, between commuters homes (or collection points near
them) and work sites (or drop points near
them). Drivers are themselves commuters
who are either volunteers who receive no
compensation for their efforts or persons
who are reimbursed by other riders for the
vehicle, operating, and driving costs.
The definition of wheelchair includes a
wide variety of mobility devices. This inclusiveness is consistent with the legislative
history of the ADA (See S. Rept. 101116 at
48). While some mobility devices may not
look like many persons traditional idea of a
wheel chair, three and four wheeled devices,
of many varied designs, are used by individuals with disabilities and must be transported. The definition of common wheelchair, developed by the Access Board, is intended to help transit providers determine
which wheelchairs they have to carry. The
definition involves an envelope relating to
the Access Board requirements for vehicle
lifts.
A lift conforming to Access Board requirements is 3048 and capable of lifting a
wheelchair/occupant combination of up to
600 pounds. Consequently, a common wheelchair is one that fits these size and weight
dimensions. Devices used by individuals with
disabilities that do not fit this envelope (e.g.,
may gurneys) do not have to be carried.
Section 37.5
Nondiscrimination
This section states the general nondiscrimination obligation for entities providing transportation service. It should be
noted that virtually all public and private
entities covered by this regulation are also
covered by DOJ regulations, which have
more detailed statements of general nondiscrimination obligations.
Under the ADA, an entity may not consign
an individual with disabilities to a separate,
segregated, service for such persons, if the
individual can in fact use the service for the
general public. This is true even if the individual takes longer, or has more difficulty,
than other persons in using the service for
the general public.
One instance in which this principal applies concerns the use of designated priority
seats (e.g., the so-called elderly and handicapped seats near the entrances to buses). A
person with a disability (e.g., a visual impairment) may choose to take advantage of
this accommodation or not. If not, it is contrary to rule for the entity to insist that the
individual must sit in the priority seats.
The prohibition on special charges applies
to charges for service to individuals with disabilities that are higher than charges for the
same or comparable services to other persons. For example, if a shuttle service
charges $20.00 for a ride from a given location to the airport for most people, it could
not charge $40.00 because the passenger had a
disability or needed to use the shuttle services lift-equipped van. Higher mileage
charges for using an accessible vehicle would
likewise be inconsistent with the rule. So
would charging extra to carry a service animal accompanying an individual with a disability.
If a taxi company charges $1.00 to stow luggage in the trunk, it cannot charge $2.00 to
stow a folding wheelchair there. This provision does not mean, however, that a transportation provider cannot charge nondiscriminatory fees to passengers with disabilities. The taxi company in the above example can charge a passenger $1.00 to stow a
456
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Section 37.7
457
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Section 37.9
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Section 37.11
Administrative Enforcement
This section contains an explicit statement of the effective date for vehicle lift
platform specifications. The Department has
decided to apply the new part 38 lift platform
specifications to solicitations after January
25, 1992. As in the October 4, 1990, rule implementing the acquisition requirements; the
date of a solicitation is deemed to be the
closing date for the submission of bids or offers in a procurement.
SUBPART BAPPLICABILITY
Section 37.21
ApplicabilityGeneral
This section emphasizes the broad applicability of part 37. Unlike section 504, the ADA
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Section 37.23
ty, it can provide the service with inaccessible vehicles in its existing fleet.
The import of the provision is that it requires a private entity contracting to provide transportation service to a public entity
to follow the rules applicable to the public
entity. For the time being, a private entity
operating in its own right can purchase a
new over-the-road bus inaccessible to individuals who use wheelchairs. When that private entity operates service under contract
to the public entity, however, it is just as obligated as the public entity itself to purchase
an accessible bus for use in that service,
whether or not it is an over-the-road bus.
The stand in the shoes requirement applies not only to vehicles acquired by private
entities explicitly under terms of an executed contract to provide service to a public
entity, but also to vehicles acquired in contemplation of use for service under such a
contract. This language is included to ensure
good faith compliance with accessibility requirements for vehicles acquired before the
execution of a contract. Whether a particular acquisition is in contemplation of use
on a contract will be determined on a caseby-case basis. However, acquiring a vehicle a
short time before a contract is executed and
then using it for the contracted service is an
indication that the vehicle was acquired in
contemplation of use on the contract, as is
acquiring a vehicle obstensibly for other
service provided by the entity and then regularly rotating it into service under the contract.
The stand in the shoes requirement is
applicable only to the vehicles and service
(public entity service requirements, like
37.163, apply to a private entity in these situations) provided under contract to a public
entity. Public entity requirements clearly do
not apply to all phases of a private entitys
operations, just because it has a contract
with a public entity. For example, a private
bus company, if purchasing buses for service
under contract to a public entity, must purchase accessible buses. The same company,
to the extent permitted by the private entity
provisions of this part, may purchase inaccessible vehicles for its tour bus operations.
The Department also notes that the
stands in the shoes requirement may differ depending on the kind of service involved. The public entitys shoes are
shaped differently, for example, depending
on whether the public entity is providing
fixed route or demand responsive service to
the general public. In the case of demand responsive service, a public entity is not required to buy an accessible vehicle if its demand responsive system, when viewed in its
entirety, provides service to individuals with
disabilities equivalent to its service to other
persons. A private contractor providing a
portion of this paratransit service would not
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University Transportation
Systems
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Section 37.29
than another passenger does not justify discriminatory conduct with respect to passengers with disabilities.
State or local governments may run userside subsidy arrangements for the general
public (e.g., taxi voucher systems for senior
citizens or low-income persons). Under the
DOJ title II rule, these programs would have
to meet program accessibility requirements, which probably would require that
accessible transportation be made available
to senior citizens or low-income persons with
disabilities. This would not directly require
private taxi providers who accept the vouchers to purchase accessible vehicles beyond
the requirements of this rule, however.
Section 37.31
Vanpools
Fixed route transportation systems operated by public airports are regarded by this
section as fixed route commuter bus systems. As such, shuttles among terminals and
parking lots, connector systems among the
airport and a limited number of other local
destinations must acquire accessible buses,
but are not subject to complementary paratransit requirements. (If a public airport operates a demand responsive system for the
general public, it would be subject to the
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Other Applications
The ADA specifically defines public entity. Anything else is a private entity. The
statute does not include in this definition a
private entity that receives a subsidy or
franchise from a state or local government
or is regulated by a public entity. Only
through the definition of operates (see discussion of 37.23) do private entities relationships to public entities subject private
entities to the requirements for public entities. Consequently, in deciding which provisions of the rule to apply to an entity in
other than situations covered by 37.23, the
nature of the entitypublic or privateis
determinative.
Transportation service provided by public
accommodations is viewed as being provided
by private entities not primarily engaged in
the business of transporting people. Either
the provisions of this part applicable to demand responsive or fixed route systems
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Section 37.49 Designation of Responsible Person(s) for Intercity and Commuter Rail Stations
This section sets forth a mechanism for determining who bears the legal and financial
responsibility for accessibility modifications
to a commuter and/or intercity rail station.
The final provision of the section is the most
important. It authorizes all concerned parties to come to their own agreement concerning the allocation of responsibility.
Such an agreement can allocate responsibility in any way acceptable to the parties.
The Department strongly encourages parties
to come to such an agreement.
In the absence of such an agreement, a
statutory/regulatory scheme allocates responsibility. In the first, and simplest, situation posed by the statute, a single public entity owns more than 50 percent of the station. In this case, the public entity is the responsible person and nobody else is required
to bear any of the responsibility.
In the second situation, a private entity
owns more than 50 percent of the station.
The private entity need not bear any of the
responsibility for making the station accessible. A public entity owner of the station,
who does not operate passenger railroad
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Party
Boardings
percentage
40
30
0
30
0
0
0
25
50
25
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Section 37.57
Required Cooperation
tion 504 complaint against a recipient of Federal funds who failed to cooperate.
The House Energy and Commerce Committee provided as an example of an action
under this provision a situation in which a
failure to cooperate leads to a construction
delay, which in turn leads to a lawsuit by an
individual with disabilities against the responsible person for missing an accessibility
deadline. The responsible person could not
use the lack of cooperation as a defense in
the lawsuit, but the uncooperative party
could be made to indemnify the responsible
person for damages awarded the plaintiff.
Also, a responsible person could obtain an injunction to force the recalcitrant owner or
controller of the station to permit accessibility work to proceed. (Id.)
This provision does not appear to be intended to permit a responsible person to seek
contribution for a portion of the cost of accessibility work from a party involved with
the station whom the statute and 37.49 do
not identify as a responsible person. It simply provides a remedy for a situation in
which someone impedes the responsible persons efforts to comply with accessibility obligations.
Section 37.59 Differences in Accessibility
Completion Date Requirements
Portions of the same station may have different accessibility completion date requirements, both as the result of different statutory time frames for different kinds of stations and individual decisions made on requests for extension. The principle at work
in responding to such situations is that if
part of a station may be made accessible
after another part, the late part of the
work should not get in the way of peoples
use of modifications resulting from the
early part.
For example, the commuter part of a station may have to be made accessible by July
1993 (e.g., there is no need to install an elevator, and platform accessibility can be
achieved by use of a relatively inexpensive
mini-high platform). The Amtrak portion of
the same station, by statute, is required to
be accessible as soon as practicable, but no
later than July 2010. If there is a common entrance to the station, that commuter rail
passengers and Amtrak passengers both use,
or a common ticket counter, it would have
to be accessible by July 1993. If there were a
waiting room used by Amtrak passengers but
not commuter passengers (who typically
stand and wait on the platform at this station), it would not have to be accessible by
July 1993, but if the path from the common
entrance to the commuter platform went
through the waiting room, the path would
have to be an accessible path by July 1993.
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Section 37.71 Purchase or Lease of New NonRail Vehicles by Public Entities Operating
Fixed Route Systems
This section sets out the basic acquisition
requirements for a public entity purchasing
a new vehicle. Generally, the section requires any public entity who purchases or
leases a new vehicle to acquire an accessible
vehicle. There is a waiver provision if lifts
are unavailable and these provisions track
the conditions in the ADA. One statutory
condition, that the public entity has made a
good faith effort to locate a qualified manufacturer to supply the lifts, presumes a direct relationship between the transit provider and the lift manufacturer. In fact, it is
the bus manufacturer, rather than the transit provider directly, who would have the
task of looking for a supplier of lifts to meet
the transit providers specifications. The
task must still be performed, but the regulation does not require the transit provider to
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Section 37.73 Purchase or Lease of Used NonRail Vehicles by Public Entities Operating a
Fixed Route System
The basic rule is that an acquisition of a
used vehicle would have to be for an accessible vehicle.
There is an exception, however, for situations in which the transit provider makes a
good faith effort to obtain accessible used
vehicles but does not succeed in finding
them. The ADA requires transit agencies to
purchase accessible used vehicles, providing
a demonstrated good faith efforts exception to the requirement. The reports of the
Senate Committee on Labor and Human Resources and the House Committee on Education and Labor offered the following guidance on what good faith efforts involve:
The phrase demonstrated good faith efforts is intended to require a nationwide
search and not a search limited to a particular region. For instance, it would not be
enough for a transit operator to contact only
the manufacturer where the transit authority usually does business to see if there are
accessible used buses. It involves the transit
authority advertising in a trade magazine,
i.e., Passenger Transport, or contacting the
transit trade association, American Public
Transit Association (APTA), to determine
whether accessible used vehicles are available. It is the Committees expectation that
as the number of buses with lifts increases,
the burden on the transit authority to demonstrate its inability to purchase accessible
vehicles despite good faith efforts will become more and more difficult to satisfy. S.
Rept. 101116 at 49; H. Rept. 101485 at 90.
Consistent with this guidance, this section
requires that good faith efforts include specifying accessible vehicles in bid solicitations.
The section also requires that the entity retain for two years documentation of that effort, and that the information be available
to FTA and the public.
It does not meet the good faith efforts requirement to purchase inaccessible, rather
than accessible, used buses, just because the
former are less expensive, particularly if the
difference is a difference attributable to the
presence of a lift. There may be situations in
which good faith efforts involve buying fewer
accessible buses in preference to more inaccessible buses.
The public participation requirements involved in the development of the paratransit
plans for all fixed route operators requires
an ongoing relationship, including extensive
outreach, to the community likely to be
using its accessible service. We believe that
it will be difficult to comply with the public
participation requirements and not involve
the affected community in the decisions con-
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Section 37.77 Purchase or Lease of New NonRail Vehicles by Public Entities Operating a
Demand Responsive System for the General
Public
Section 224 of the ADA requires that a public entity operating a demand responsive system purchase or lease accessible new vehicles, for which a solicitation is made after
August 25, 1990, unless the system, when
viewed in its entirety, provides a level of
service to individuals with disabilities, including individuals who use wheelchairs,
equivalent to the level of service provided to
individuals without disabilities. This section
is the same as the October 4, 1990 final rule
which promulgated the immediately effective acquisition requirements of the ADA.
The Department has been asked to clarify
what accessible when viewed in its entirety means in the context of a demand responsive system being allowed to purchase
an inaccessible vehicle. First, it is important
to note that this exception applies only to
demand responsive systems (and not fixed
route systems). The term equivalent service was discussed during the passage of the
ADA. Material from the legislative history
indicates that when viewed in its entirety/
equivalent service means that when all aspects of a transportation system are analyzed, equal opportunities for each individual with a disability to use the transportation system must exist. (H. Rept. 101184,
Pt. 2, at 95; S. Rept. 101116 at 54). For example, both reports said that the time delay
between a phone call to access the demand
responsive system and pick up the individual
is not greater because the individual needs a
lift or ramp or other accommodation to access the vehicle. (Id.)
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This section requires generally that remanufactured cars be made accessible, to the
maximum extent feasible. Feasible is defined
in paragraph (c) of the section to be unless
an engineering analysis demonstrates that
remanufacturing the car to be accessible
would have a significant adverse effect on
the structural integrity of the car. Increased cost is not a reason for viewing other
sections of this subpart concerning remanufactured vehicles.
In addition, this section differs from the
counterpart sections for non-rail vehicles
and light and rapid rail vehicles in two ways.
First, the extension of useful life needed to
trigger the section is ten rather than five
years. Second, there is no historic vehicle exception. Both of these differences are statutory.
Remanufacture of vehicles implies work
that extends their expected useful life of the
vehicle. A mid-life overhaul, not extending
the total useful life of the vehicle, would not
be viewed as a remanufacture of the vehicle.
Section 37.93 One Car Per Train Rule
This section implements the statutory directive that all rail operators (light, rapid,
commuter and intercity) have at least one
car per train accessible to persons with disabilities, including individuals who use
wheelchairs by July 26, 1995. (See ADA sections 242(a)(1), 242(b)(1), 228(b)(1).) Section
37.93 contains this general requirement. In
some cases, entities will meet the one-carper train rule through the purchase of new
cars. In this case, since all new rail vehicles
have to be accessible, compliance with this
provision is straightforward.
However, certain entities may not be purchasing any new vehicles by July 26, 1995, or
may not be purchasing enough vehicles to
ensure that one car per train is accessible. In
these cases, these entities will have to retrofit existing cars to meet this requirement.
What a retrofitted car must look like to
meet the requirement has been decided by
the Access Board. These standards are contained in part 38 of this rule.
We would point that, consistent with the
Access Board standards, a rail system using
mini-high platforms or wayside lifts is not
required, in most circumstances, to doublestop in order to give passengers a chance to
board the second or subsequent car in a train
at the mini-high platform or way-side lift.
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The first two sections spell out the distinctions among the different types of service
elaborated in the ADA and requirements
that apply to them. For clarity, we provide
the following chart.
Vehicle capacity
Requirement
Over 16 ................
16 or less .............
Demand Responsive.
Over 16 ................
Demand Responsive.
16 or less .............
Acquire accessible
vehicle.
Acquire accessible
vehicle, or
equivalency.
Acquire accessible
vehicle, or
equivalency.
Equivalencysee
37.171.
Vehicle type/capacity
Requirement
Acquire accessible
vehicle.
Demand responsive.
Either fixed route
or demand responsive.
Acquire accessible
vehicle, or
equivalency.
Same as above.
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Section 37.123
or any combination of these and other approaches is acceptable. Entities who feel it
necessary to apply for an undue financial
burden waiver should be aware that one of
the factors FTA will examine in evaluating
waiver requests is efficiencies the provider
could realize in its paratransit service.
Therefore, it is important for entities in this
situation to use the most economical and efficient methods of providing paratransit
they can devise.
It is also important for them to establish
and consistently implement strong controls
against fraud, waste and abuse in the paratransit system. Fraud, waste and abuse can
drain significant resources from a system
and control of these problems is an important efficiency for any paratransit system.
It will be difficult for the Department to
grant an undue financial burden waiver to
entities which do not have a good means of
determining if fraud, waste and abuse are
problems and adequate methods of combating these problems, where they are found
to exist.
This section sets forth the basic requirement that all public entities who operate a
fixed route system have to provide paratransit service that is both comparable and
complementary to the fixed route service. By
complementary, we mean service that acts
as a safety net for individuals with disabilities who cannot use the fixed route system. By comparable, we mean service that
meets the service criteria of this subpart.
This requirement applies to light and rapid
rail systems as well as to bus systems, even
when rail and bus systems share all or part
of the same service area. Commuter bus,
commuter rail and intercity rail systems do
not have to provide paratransit, however.
The remaining provisions of subpart F set
forth the details of the eligibility requirements for paratransit, the service criteria
that paratransit systems must meet, the
planning process involved, and the procedures for applying for waivers based on
undue financial burden.
Paratransit may be provided by a variety
of modes. Publicly operated dial-a-ride vans,
service contracted out to a private paratransit provider, user-side subsidy programs,
General Provisions
This section sets forth the minimum requirements for eligibility for complementary
paratransit service. All fixed route operators
providing complementary paratransit must
make service available at least to individuals meeting these standards. The ADA does
not prohibit providing paratransit service to
anyone. Entities may provide service to additional persons as well. Since only service
to ADA eligible persons is required by the
rule, however, only the costs of this service
can be counted in the context of a request
for an undue financial burden waiver.
When the rule says that ADA paratransit
eligibility shall be strictly limited to persons in the eligible categories, then, it is not
saying that entities are in any way precluded from serving other people. It is saying
that the persons who must be provided service, and counting the costs of providing them
service, in context of an undue burden waiver, are limited to the regulatory categories.
TEMPORARY DISABILITIES
Eligibility may be based on a temporary as
well as a permanent disability. The individual must meet one of the three eligibility
criteria in any case, but can do so for a limited period of time. For example, if an individual breaks both legs and is in two casts
for several weeks, becomes a wheelchair user
for the duration, and the bus route that
would normally take him to work is not accessible, the individual could be eligible
under the second eligibility category. In
granting eligibility to such a person, the entity should establish an expiration date for
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TRIP-BY-TRIP ELIGIBILITY
A person may be ADA paratransit eligible
for some trips but not others. Eligibility
does not inhere in the individual or his or
her disability, as such, but in meeting the
functional criteria of inability to use the
fixed route system established by the ADA.
This inability is likely to change with differing circumstances.
For example, someone whose impairmentrelated condition is a severe sensitivity to
temperatures below 20 degrees is not prevented from using fixed route transit when
the temperature is 75 degrees. Someone
whose impairment-related condition is an inability to maneuver a wheelchair through
snow is not prevented from using fixed route
transit when there is no snow on the ground.
Someone with a cognitive disability may
have learned to take the same bus route to
a supported employment job every day. This
individual is able to navigate the system for
work purposes and therefore would not be eligible for paratransit for work trips. But the
individual may be unable to get to other destinations on the bus system without getting
lost, and would be eligible for paratransit for
non-work trips. Someone who normally
drives his own car to a rail system park and
ride lot may have a specific impairment related condition preventing him from getting
to the station when his car is in the shop. A
person who can use accessible fixed route
service can go to one destination on an accessible route; another destination would require the use of an inaccessible route. The
individual would be eligible for the latter
but not the former.
In many cases, though the person is eligible for some trips but not others, eligibility
determinations would not have to be made
literally on a trip-by-trip basis. It may often
be possible to establish the conditions on eligibility as part of the initial eligibility determination process. Someone with a temperature sensitivity might be granted seasonal eligibility. Somebody who is able to
navigate the system for work but not nonwork trips could have this fact noted in his
or her eligibility documentation. Likewise,
someone with a variable condition (e.g., multiple sclerosis, HIV disease, need for kidney
dialysis) could have their eligibility based on
the underlying condition, with paratransit
need for a particular trip dependent on selfassessment or a set of medical standards
(e.g., trip within a certain amount of time
after a dialysis session). On the other hand,
persons in the second eligibility category
(people who can use accessible fixed route
service where it exists) would be given service on the basis of the particular route they
would use for a given trip.
ELIGIBILITY
ELIGIBILITY
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ELIGIBILITY
The third eligibility criterion concerns individuals who have a specific impairment-related condition which prevents them from
getting to or from a stop or station. As noted
in the legislative history of the ADA, this is
intended to be a very narrow exception to
the general rule that difficulty in traveling
to or from boarding or disembarking locations is not a basis for eligibility.
What is a specific impairment-related condition? The legislative history mentions four
examples: Chronic fatigue, blindness, a lack
of cognitive ability to remember and follow
directions, or a special sensitivity to temperature. Impaired mobility, severe communications disabilities (e.g., a combination of
serious vision and hearing impairments),
cardiopulmonary conditions, or various
other serious health problems may have
similar effects. The Department does not believe that it is appropriate, or even possible,
to create an exhaustive list.
What the rule uses as an eligibility criterion is not just the existence of a specific
impairment-related condition. To be a basis
for eligibility, the condition must prevent
the individual from traveling to a boarding
location or from a disembarking location.
The word prevent is very important. For
anyone, going to a bus stop and waiting for
a bus is more difficult and less comfortable
than waiting for a vehicle at ones home.
This is likely to be all the more true for an
individual with a disability. But for many
persons with disabilities, in many circumstances, getting to a bus stop is possible.
If an impairment related condition only
makes the job of accessing transit more difficult than it might otherwise be, but does
not prevent the travel, then the person is not
eligible.
For example, in many areas, there are not
yet curb cuts. A wheelchair user can often
get around this problem by taking a less direct route to a destination than an ambulatory person would take. That involves more
time, trouble, and effort than for someone
without a mobility impairment. But the person can still get to the bus stop. On the basis
of these architectural barriers, the person
would not be eligible.
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COMPANIONS
The ADA requires entities to provide paratransit to one person accompanying the eligible individual, with others served on a
space-available basis. The one individual
who is guaranteed space on the vehicle can
be anyonefamily member, business associate, friend, date, etc. The provider cannot
limit the eligible individuals choice of type
of companion. The transit authority may require that the eligible individual reserve a
space for the companion when the individual
reserves his or her own ride. This one individual rides even if this means that there is
less room for other eligible individuals. Additional individuals beyond the first companion are carried only on a space available
basis; that is, they do not displace other
ADA paratransit eligible individuals.
A personal care attendant (i.e., someone
designated or employed specifically to help
the eligible individual meet his or her personal needs) always may ride with the eligible individual. If there is a personal care attendant on the trip, the eligible individual
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prohibited by this rule. However, the eligibility process should clearly distinguish
those persons who are ADA eligible from
those who are provided service on other
grounds. For example, eligibility documentation must clearly state whether someone is
ADA paratransit eligible or eligible on some
other basis.
Often, people tend to think of paratransit
exclusively in terms of people with mobility
impairments. Under the ADA, this is not accurate. Persons with visual impairments
may be eligible under either the first or
third eligibility categories. To accommodate
them, all documents concerning eligibility
must be made available in one or more accessible formats, on request. Accessible formats include computer disks, braille documents, audio cassettes, and large print documents. A document does not necessarily need
to be made available in the format a requester prefers, but it does have to be made
available in a format the person can use.
There is no use giving a computer disk to
someone who does not have a computer, for
instance, or a braille document to a person
who does not read braille.
When a person applies for eligibility, the
entity will provide all the needed forms and
instructions. These forms and instructions
may include a declaration of whether the individual travels with a personal care attendant. The entity may make further inquiries
concerning such a declaration (e.g., with respect to the individuals actual need for a
personal care attendant).
When the application process is complete
all necessary actions by the applicant
takenthe entity should process the application in 21 days. If it is unable to do so, it
must begin to provide service to the applicant on the 22nd day, as if the application
had been granted. Service may be terminated only if and when the entity denies the
application. All determinations shall be in
writing; in the case of a denial, reasons must
be specified. The reasons must specifically
relate the evidence in the matter to the eligibility criteria of this rule and of the entitys process. A mere recital that the applicant can use fixed route transit is not sufficient.
For people granted eligibility, the documentation of eligibility shall include at least
the following information:
The individuals name
The name of the transit provider
The telephone number of the entitys paratransit coordinator
An expiration date for eligibility
Any conditions or limitations on the individuals eligibility, including the use of a
personal care attendant.
The last point refers to the situation in
which a person is eligible for some trips but
not others. Or if the traveler is authorized to
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under all the same conditions, service criteria, etc., without distinction. For the period of a visit, the visitor is treated exactly
like an eligible local user, without any higher priority being given to either.
A visitor is defined as someone who does
not reside in the jurisdiction or jurisdictions
served by the public entity or other public
entities with which it coordinates paratransit service. For example, suppose a fivecounty metropolitan area provides coordinated paratransit service under a joint plan.
A resident of any of the five counties would
not be regarded as a visitor in any of them.
Note that the rule talks in terms of jurisdiction rather than service area. If an individual lives in XYZ County, but outside
the fixed route service area of that countys
transit provider, the individual is still not a
visitor for purposes of paratransit in PQR
County, if PQR is one of the counties with
which XYZ provides coordinated paratransit
service.
A visitor can become eligible in one of two
ways. The first is to present documentation
from his or her home jurisdictions paratransit system. The local provider will give
full faith and credit to the ID card or
other documentation from the other entity.
If the individual has no such documentation,
the local provider may require the provision
of proof of visitor status (i.e., proof of residence somewhere else) and, if the individuals disability is not apparent, proof of the
disability (e.g., a letter from a doctor or rehabilitation professional). Once this documentation is presented and is satisfactory,
the local provider will make service available on the basis of the individuals statement that he or she is unable to use the fixed
route transit system.
The local provider need serve someone
based on visitor eligibility for no more than
21 days. After that, the individual is treated
the same as a local person for eligibility purposes. This is true whether the 21 days are
consecutive or parceled out over several
shorter visits. The local provider may require the erstwhile visitor to apply for eligibility in the usual local manner. A visitor
who expects to be around longer than 21 days
should apply for regular eligibility as soon as
he arrives. The same approach may be used
for a service of requested visits totaling 21
days or more in a relating compact period of
time. Preferably, this application process
should be arranged before the visitor arrives,
by letter, telephone or fax, so that a complete application can be processed expeditiously.
wreier-aviles on DSK3TPTVN1PROD with CFR
Section 37.129
Types of Service
The basic mode of service for complementary paratransit is demand responsive, origin-to-destination service. This service may
be provided for persons in any one of the
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EC02FE91.191</GPH>
are not yet accessible, or because they cannot access stations from points within the
circles because of a specific impairment-related condition. For individuals who are eligible in category 2 because they need an accessible key station to use the system, the
paratransit obligation extends only to transportation among circles centered on designated key stations (since, even when the
key station plan is fully implemented, these
individuals will be unable to use non-key
stations).
It is not sufficient for a rail operator to
refer persons with disabilities to an accessible bus system in the area. The obligation
to provide paratransit for a rail system is
independent of the operations of any bus system serving the same area, whether operated
by the same entity that operates the rail
system or a different entity. Obviously, it
will be advantageous for bus and rail systems to coordinate their paratransit efforts,
but a coordinated system would have to ensure coverage of trips comparable to rail
trips that could not conveniently be taken
on the fixed route bus system.
RESPONSE TIME
Under this provision, an entity must make
its reservation service available during the
hours its administrative offices are open. If
those offices are open 9 to 5, those are the
hours during which the reservations service
must be open, even if the entitys transit
service operated 6 a.m. to midnight. On days
prior to a service day on which the administrative offices are not open at all (e.g., a
Sunday prior to a Monday service day), the
reservation service would also be open 9 to 5.
Note that the reservation service on any day
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EC02FE91.192</GPH>
FARES
To calculate the proper paratransit fare,
the entity would determine the route(s) that
an individual would take to get from his or
her origin to his or her destination on the
fixed route system. At the time of day the
person was traveling, what is the fare for
that trip on those routes? Applicable charges
like transfer fees or premium service charges
may be added to the amount, but discounts
(e.g., the half-fare discount for off-peak fixed
route travel by elderly and handicapped persons) would not be subtracted. The transit
provider could charge up to twice the resulting amount for the paratransit trip.
The mode through which paratransit is
provided does not change the method of calculation. For example, if paratransit is provided via user side subsidy taxi service rather than publicly operated dial-a-ride van
service, the cost to the user could still be
only twice the applicable fixed route fare.
The system operates the same regardless of
whether the paratransit trip is being provided in place of a bus or a rail trip the user
cannot make on the fixed route system.
Where bus and rail systems are run by the
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uses its own paratransit vans during high demand periods, it could use a private contractor or user-side subsidy provider during
low demand periods. This would presumably
be a more efficient way of providing late
night service. A call-forwarding device for
communication with the auxiliary carrier
during these low demand times would be perfectly acceptable, and could reduce administrative costs.
CAPACITY CONSTRAINTS
This provision specifically prohibits two
common mechanisms that limit use of a
paratransit system so as to constrain demand on its capacity. The first is a waiting
list. Tyically, a waiting list involves a determination by a provider that it can provide
service only to a given number of eligible
persons. Other eligible persons are not able
to receive service until one of the people
being served moves away or otherwise no
longer uses the service. Then the persons on
the waiting list can move up. The process is
analogous to the wait that persons in some
cities have to endure to be able to buy season tickets to a sold-out slate of professional
football games.
The second mechanism specifically mentioned is a number limit on the trips a passenger can take in a given period of time. It
is a kind of rationing in which, for example,
if one has taken his quota of 30 trips this
month, he cannot take further trips for the
rest of the month.
In addition, this paragraph prohibits any
operational pattern or practice that significantly limits the availability of service of
ADA paratransit eligible persons. As discussed under 37.125 in the context of missed
trips by passengers, a pattern or practice
involves, regular, or repeated actions, not
isolated, accidental, or singular incidents. A
missed trip, late arrival, or trip denial now
and then does not trigger this provision.
Operational problems outside the control
of the entity do not count as part of a pattern or practice under this provision. For example, if the vehicle has an accident on the
way to pick up a passenger, the late arrival
would not count as part of a pattern or practice. If something that could not have been
anticipated at the time the trip was scheduled (e.g., a snowstorm, an accident or hazardous materials incident that traps the
paratransit vehicle, like all traffic on a certain highway, for hours), the resulting
missed trip would not count as part of a pattern or practice. On the other hand, if the entity regularly does not maintain its vehicles
well, such that frequent mechanical breakdowns result in missed trips or late arrivals,
a pattern or practice may exist. This is also
true in a situation in which scheduling practices fail to take into account regularly occurring traffic conditions (e.g., rush hour
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Section 37.133
Subscription Service
This section contains the general requirements concerning the submission of paratransit plans. Each public entity operating
fixed route service is required to develop and
submit a plan for paratransit service. Where
you send your plans depends on the type of
entity you are. There are two categories of
entities which should submit their plans to
states(1) FTA recipients and (2) entities
who are administered by the state on behalf
of FTA.
These FTA grantees submit their plans to
the states because the agency would like the
benefit of the states expertise before final
review. The states role is as a commenter,
not as a reviewer.
This section also specifies annual progress
reports concerning the meeting of previously
approved milestones, any slippage (with the
reasons for it and plans to catch up), and any
significant changes in the operators environment, such as the withdrawal from the
marketplace of a private paratransit provider or whose service the entity has relied
upon to provide part of its paratransit service.
Paragraph (d) of this section specifies a
maximum time period for the phase-in of the
implementation of paratransit plans. The
Department recognizes that it is not reasonable to expect paratransit systems to spring
into existence fully formed, like Athena
from the head of Zeus. Under this paragraph,
all entities must be in full compliance with
all paratransit provisions by January 26,
1997, unless the entity has received a waiver
from FTA based on undue financial burden
(which applies only to the service criteria of
37.131, not to eligibility requirements or
other paratransit provisions).
While the rule assumes that most entities
will take a year to fully implement these
provisions, longer than a year requires the
paratransit plans to submit milestones that
are susceptible to objective verification. Not
all plans will be approved with a five-year
lead-in period. Consistent with the proposed
rule, the Department intends to look at each
plan individually to see what is required for
implementation in each case. DOT may approve only a shorter phase-in period in a
given case.
Section 37.137
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Plan Contents
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Section 37.141
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Section 37.151
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Section 37.165
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Section 37.167
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Section 37.169 Interim Requirements for Overthe-Road Bus Service Operated by Private Entities
Private over-the-road bus (OTRB) service
is, first of all, subject to all the other private
entity requirements of the rule. The requirements of this section are in addition to the
other applicable provisions.
Boarding assistance is required. The Department cannot require any particular
boarding assistance devices at this time.
Each operator may decide what mode of
boarding assistance is appropriate for its operation. We agree with the discussion in the
DOJ Title II rules preamble that carrying is
a disfavored method of providing assistance
to an individual with a disability. However,
since accessible private OTRBs cannot be required by this rule, there may be times when
carrying is the only available means of providing access to an OTRB, if the entity does
not exercise its discretion to provide an alternative means. It is required by the rule
that any employee who provides boarding assistanceabove all, who may carry or otherwise directly physically assist a passenger
must be trained to provide this assistance
appropriately and safely.
The baggage priority provision for wheelchairs and other assistive devices involves a
similar procedure to that established in the
Departments Air Carrier Access Act rule (14
CFR part 382). In brief, it provides that, at
any given stop, a person with a wheelchair or
other assistive device would have the device
loaded before other items at this stop. An individual traveling with a wheelchair is not
similarly situated to a person traveling with
luggage. For the wheelchair user, the wheelchair is an essential mobility device, without which travel is impossible. The rationale
of this provision is that, while no one wants
his or her items left behind, carrying the
wheelchair is more important to its user
than ordinary luggage to a traveler. If it
comes to an either/or choice (the wheelchair
users luggage would not have any priority
over other luggage, however). There would be
no requirement, under this provision, for
bumping baggage already on the bus from
previous stops in order to make room for the
wheelchair.
The entity could require advance notice
from a passenger in only one circumstance.
If a passenger needed boarding assistance,
the entity could require up to 48 hours advance notice for the purpose of providing
needed assistance. While advance notice requirements are generally undesirable, this
Training
A well-trained workforce is essential in ensuring that the accessibility-related equipment and accommodations required by the
ADA actually result in the delivery of good
transportation service to individuals with
disabilities. The utility of training was recognized by Congress as well. (See S. Rept.
100116 at 48.) At the same time, we believe
that training should be conducted in an efficient and effective manner, with appropriate
flexibility allowed to the organizations that
must carry it out. Each transportation provider is to design a training program which
suits the needs of its particular operation.
While we are confident of this approach, we
are mindful that the apparent lack of training has been a source of complaint to FTA
and transit providers. Good training is difficult and it is essential.
Several points of this section deserve emphasis. First, the requirements for training
apply to private as well as to public providers, of demand responsive as well as of
fixed route service. Training is just as necessary for the driver of a taxicab, a hotel
shuttle, or a tour bus as it is for a driver in
an FTA-funded city bus system.
Second, training must be to proficiency.
The Department is not requiring a specific
course of training or the submission of a
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Section 206.3
This section concerns the location of accessible paths. The Department is retaining
language from former 10.3.1(1), which provides that Elements such as ramps, elevators, or other circulation devices, fare
vending or other ticketing areas, and fare
collection areas shall be placed to minimize
the distance which wheelchair users and
other persons who cannot negotiate steps
may have to travel compared to the general
public. This concept, in our view, is implicit in the language of 206.3. However, we
believe it is useful to make explicit the concept that, in transportation facilities such as
rail stations, important facility elements are
placed so as to minimize the distance persons with disabilities must travel to use
them. This requirement is intended to affect
decisions about where to locate entrances,
boarding locations (e.g., where a mini-high
platform is used for boarding), and other key
elements of a facility.
Section 406.8
To maintain the status quo with respect to
detectable warnings in pedestrian facilities,
the Department is adding a provision (not
found in the current version of the new
ADAAG) requiring curb ramps to have detectable warnings.
Section 810.2.2
The Department recognizes that there will
be some situations in which the full dimensions of a bus boarding and alighting area
complying with the 810.2.2 may not be able
to be achieved (e.g., there is less than 96
inches of perpendicular space available from
the curb or roadway edge, because of buildings or terrain features). The Department is
adding language from former 37.9 (c) of this
part, which provides that Public entities
shall ensure the construction of bus boarding
and alighting areas comply with 810.2.2, to
the extent the construction specifications
are within their control. Where it is not
feasible to fully comply with 810.2.2, the Department expects compliance to the greatest
extent feasible.
We note that there may be some instances
in which it will be necessary to make operational adjustments where sufficient clearance is not available to permit the deployment of lifts or ramps on vehicles. For example, a bus driver could position the bus at a
nearby pointeven if not the precise location of the designated stopso that a passenger needing a lift or ramp to get on or off
the bus can do so. To avoid the need for such
operational adjustments, it is important to
This section concerns coordination between rail platforms and rail vehicles. The
Department is adding language from the
former 10.3.1 (9) (Exception 2), which provides that In light rail, commuter rail, and
intercity rail systems where it is not operationally or structurally feasible to meet the
horizontal gap or vertical difference requirements, mini-high platforms, car-borne or
platform-mounted lifts, ramps or bridge
plates or similarly manually deployed devices, meeting the requirements of 49 CFR
Part 38 shall be permitted.
In September 2005, the Department issued
guidance concerning the relationship of its
ADA and 504 rules in the context of rail platform accessibility This guidance emphasized
that access to all cars of a train is significant because, if passengers with disabilities
are unable to enter all cars from the platform, the passengers will have access only to
segregated service. This would be inconsistent with the nondiscrimination mandate
of the ADA. It would also, in the case of Federal Transit Administration (FTA) and Federal Railroad Administration (FRA)-assisted
projects (including Amtrak), be inconsistent
with the requirement of the Departments
section 504 regulation (49 CFR 27.7), which
requires service in the most integrated setting reasonably achievable. This guidance
states the Departments views of the meaning of its existing rules, and the Department
will continue to use this guidance in applying the provisions of this rule.
The Department notes that a related section of 49 CFR part 38 has been the source of
some misunderstanding. Section 38.71(b)(2)
provides that Vehicles designed for, and operated on, pedestrian malls, city streets, or
other areas where level-entry boarding is not
practicable shall provide wayside or carborne lifts, mini-high platforms, or other
means of access in compliance with 38.83 (b)
or (c) of this part. The Department has received some suggestions that this provision
should be interpreted to mean that, if there
is any portion of a system in which levelentry boarding is not practicable, then the
entire system can use some method other
than level-entry boarding. Such an interpretation is incorrect. The authority to use alternatives to level-entry boarding pertains
only to those portions of a system in which
rail vehicles are operated on an area
where level-entry boarding is not practicable.
For example, suppose a light rail systems
first three stops are on a pedestrian/transit
mall where it is infeasible to provide levelentry boarding. The transit system could use
car-borne lifts, mini-high platforms, etc. to
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provide access at those three stops. The systems next ten stops are part of a right-ofway in which level-entry boarding is practicable. In such a case, level-entry boarding
would have to be provided at those ten stops.
There is nothing inappropriate about the
same system having different means of
boarding in different locations, in such a
case.
We also caution against a potential misunderstanding of the sentence in 810.5.3
that provides that Low-level platforms
shall be 8 inches minimum (205 mm) above
top of rail. This does not mean that highlevel platforms are prohibited or that lowlevel platforms are the only design consistent with the rules. It simply means that
where low-level platforms are otherwise permitted, such platforms must be at least 8
inches above the top of rail, except where vehicles are boarded from the street or a sidewalk.
[56 FR 45621, Sept. 6, 1991, as amended at 61
FR 25416, May 21, 1996; 71 FR 63266, Oct. 30,
2006]
EFFECTIVE DATE NOTE: At 76 FR 57936,
Sept. 19, 2011, part 37, appendix D was amended as follows:
A. Under Section 37.3 Definitions, removing the last two paragraphs and adding
four paragraphs in its place,
B. Adding Section 37.42 in numerical order,
C. Revising the first paragraph under Section 37.71,
D. Under Section 37.93 removing the period
at the end of last sentence in the third paragraph and replacing it with a comma, and
adding the following language: except
where doing is necessary to comply with the
provisions of section 37.42 of this part.
E. Revising Section 37.165. These amendments are effective October 19, 2011.
For the convenience of the user, the added
and revised text is set forth as follows:
SECTION 37.3
DEFINITIONS
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SECTION 37.42
Service in an integrated setting to passengers at intercity, commuter, and highspeed rail station platforms constructed or
altered after February 1, 2012.
Individuals with disabilities, including individuals who use wheelchairs, must have access to all accessible cars in each train using
a new or altered station. This performance
standard will apply at stations where construction or alteration of platforms begins
135 days or more after the rule is published.
The performance standard does not require
rail operators to retrofit existing station
platforms or cars. The requirement is prospective, and section 37.42 does not require
retrofit of existing stations (though compliance with existing disability nondiscrimination requirements not being altered is still
required). To meet this performance standard on lines or systems where track passing
through stations and adjacent to platforms
is shared with existing freight rail operations, passenger railroads that do not
choose to provide level-entry boarding may,
after obtaining FRA and/or FTA approval,
use car-borne lifts, ramps or other devices,
mini-high platforms (making multiple stops
where necessary to accommodate passengers
wishing to use different cars of the train), or
movable station-based lifts.
On commuter, intercity, or high-speed rail
lines or systems in which track passing
through stations and adjacent to platforms
is not shared with existing freight rail operations, the performance standard must be
met by providing level-entry boarding to all
accessible cars in each train that serves new
or altered stations on the line or system. For
example, if a new commuter or high-speed
rail line or system is being built, and the
track adjacent to platforms is not shared
with freight traffic (e.g., it is a passenger
rail-only system, or a passing or gauntlet
track exists for freight traffic), then the stations would have to provide level-entry
boarding. Other options would not be permitted.
If a platform being constructed or altered
is not adjacent to track used for freight, but
the track and platform are used by more
than one passenger railroad (e.g., Amtrak
and a commuter railroad), the possibility of
the platform serving cars with different door
heights exists. In this situation, the levelentry boarding requirement continues to
exist. Generally, the platform should be level
with respect to the system that has the
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other uses. For example, it would be contrary to the rule for a wheelchair user to be
told that he or she could not use car 7 because the wheelchair spaces were filled with
other passengers luggage from a previous
stop.
In order to ensure that access was provided, passengers would have to notify railroad personnel. For example, if a passenger
at a station wanted to use a station-based
lift to access car 6, the passenger would request the use of car 6 and railroad personnel
would deploy the lift at that car. Likewise,
at a station using a mini-high platform, a
passenger on this platform would inform
train personnel that he or she wanted to
enter car 5, whereupon the train would pull
forward so that car 5 was opposite the minihigh platform. We contemplate that these requests would be made when the train arrives,
and railroads could not insist on advance notice (e.g., the railroad could not require a
passenger to call a certain time in advance
to make a reservation to use a lift to get
on a particular car). As part of its submission to FTA or FRA, the railroad would describe the procedure it would use to receive
and fulfill these requests.
Where a railroad operator wishes to provide access to its rail cars through a means
other than level-entry boarding, it is essential that it provide an integrated, safe, timely, reliable, and effective means of access for
people with disabilities. A railroad is not required to choose what might be regarded as
a more desirable or convenient method over
a less desirable or convenient method, or to
choose a more costly option over a less costly option. What a railroad must do is to ensure that whatever option it chooses works.
However, to assist railroads in choosing the
most suitable option, the rule requires that
a railroad not using level-entry boarding, if
it chooses an approach other than the use of
car-borne lifts, must perform a comparison
of the costs (capital, operating, and lifecycle costs) of car-borne lifts versus the
means preferred by the railroad operator, as
well as a comparison of the relative ability
of each of the two alternatives (i.e., carborne lifts and the railroads preferred approach) to provide service to people with disabilities in an integrated, safe, reliable, and
timely manner. The railroad must submit
this comparison to FTA and FRA at the
same time as it submits its plan to FRA and/
or FTA, as described below, although the
comparison is not part of the basis on which
the agencies would determine whether the
plan meets the performance standard. The
Department believes that, in creating this
plan, railroads should consult with interested individuals and groups and should
make the plan readily available to the public, including individuals with disabilities.
To ensure that the railroads chosen option
works, the railroad must provide to FRA or
FTA (or both), as applicable, a plan explaining how its preferred method will provide the
required integrated, safe, reliable, timely
and effective means of access for people with
disabilities. The plan would have to explain
how boarding equipment (e.g., bridge plates,
lifts, ramps, or other appropriate devices)
and/or platforms will be deployed, maintained, and operated, as well as how personnel will be trained and deployed to ensure
that service to individuals with disabilities
was provided in an integrated, safe, timely,
effective, and reliable manner.
FTA and/or FRA will evaluate the proposed plan with respect to whether it will
achieve the objectives of the performance
standard and may approve, disapprove, or
modify it. It should be emphasized that the
purpose of FTA/FRA review of this plan is to
make sure that whatever approach a railroad
chooses will in fact work; that is, it will
really result in an integrated, safe, reliable,
timely and effective means of access for people with disabilities. If a plan, in the view of
FRA or FTA, fails to meet this test, then
FTA or FRA can reject it or require the railroad to modify it to meet the objectives of
this provision.
In considering railroads plans, the agencies will consider factors including, but not
limited to, how the proposal maximizes integration of and accessibility to individuals
with disabilities, any obstacles to the use of
a method that could provide better service to
individuals with disabilities, the safety and
reliability of the approach and related technology proposed to be used, the suitability of
the means proposed to the station and line
and/or system on which it would be used, and
the adequacy of equipment and maintenance
and staff training and deployment.
For example, some commenters have expressed significant concerns about the use of
station-based lifts, noting instances in which
such lifts have not been maintained in a safe
and reliable working order. A railroad proposing to use station-based lifts would have
to describe to FTA or FRA how it would ensure that the lifts remained in safe and reliable operating condition (such as by cycling
the lift daily or other regular maintenance)
and how it would ensure that personnel to
operate the lift were available in a timely
manner to assist passengers in boarding a
train. This demonstration must clearly state
how the railroad expects that their operations will provide safe and dignified service
to the users of such lifts.
In existing stations where it is possible to
provide access to every car without station
or rail car retrofits, rail providers that receive DOT financial assistance should be
mindful of the requirement of 49 CFR
27.7(b)(2), which requires that service be provided in the most integrated setting that is
reasonably achievable. For example, if a set
of rail cars has car-borne lifts that enable
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SECTION 37.165
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entities with relatively less adequate securement systems on their vehicles, where feasible, to retrofit the vehicles with better securement systems, that can successfully restrain a wide variety of wheelchairs. It is our
understanding that the cost of doing so is
not enormous.
An entity may not, in any case, deny
transportation to a wheelchair and its user
because the wheelchair cannot be secured or
restrained by a vehicles securement system,
to the entitys satisfaction. The same point
applies to an OPMD and its user, subject to
legitimate safety requirements.
Entities have often recommended or required that a wheelchair user transfer out of
his or her own device into a vehicle seat.
Under this rule, it is no longer permissible to
require such a transfer. The entity may provide information on risks and make a recommendation with respect to transfer, but
the final decision on whether to transfer is
up to the passenger.
The entitys personnel have an obligation
to ensure that a passenger with a disability
is able to take advantage of the accessibility
and safety features on vehicles. Consequently, the driver or other personnel
must provide assistance with the use of lifts,
ramps, and securement devices. For example,
the driver must deploy the lift properly and
safely. If the passenger cannot do so independently, the driver must assist the passenger with using the securement device. On
a vehicle which uses a ramp for entry, the
driver may have to assist in pushing a manual wheelchair up the ramp (particularly
where the ramp slope is relatively steep). All
these actions may involve a driver leaving
his seat. Even in entities whose drivers traditionally do not leave their seats (e.g., because of labor-management agreements or
company rules), this assistance must be provided. This rule overrides any requirements
to the contrary.
Wheelchair users, especially those using
electric wheelchairs, often have a preference
for entering a lift platform and vehicle in a
particular direction (e.g., backing on or
going on frontwards). Except where the only
way of successfully maneuvering a device
onto a vehicle or into its securement area or
an overriding safety concern (i.e., a direct
threat) requires one way of doing this or another, the transit provider should respect the
passengers preference. We note that most
electric wheelchairs are usually not equipped
with rearview mirrors, and that many persons who use them are not able to rotate
their heads sufficiently to see behind. People
using canes or walkers and other standees
with disabilities who do not use wheelchairs
but have difficulty using steps (e.g., an elderly person who can walk on a level surface
without use of a mobility aid but cannot
raise his or her legs sufficiently to climb bus
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Purpose.
Equivalent facilitation.
Definitions.
Miscellaneous instructions.
38.2
Subpart FIntercity Rail Cars and Systems
38.111 General.
38.113 Doorways.
38.115 Interior circulation, handrails and
stanchions.
38.117 Floors, steps and thresholds.
38.119 Lighting.
38.121 Public information system.
38.123 Restrooms.
38.125 Mobility aid accessibility.
38.127 Sleeping compartments.
and
and
Subpart AGeneral
and
38.171 General.
38.173 Automated guideway transit vehicles
and systems.
38.175 High-speed rail cars, monorails and
systems.
38.177 Ferries, excursion boats and other
vessels. [Reserved]
38.179 Trams, and similar vehicles, and systems.
FIGURES TO PART 38
APPENDIX TO PART 38GUIDANCE MATERIAL
AUTHORITY: 42 U.S.C. 1210112213; 49 U.S.C.
322.
38.151 General.
38.153 Doors, steps and thresholds.
38.155 Interior circulation, handrails and
stanchions.
38.157 Lighting.
38.159 Mobility aid accessibility.
38.161 Moveable aisle armrests.
and
38.1 Purpose.
This part provides minimum guidelines and requirements for accessibility
standards in part 37 of this title for
transportation vehicles required to be
accessible by the Americans With Disabilities Act (ADA) of 1990 (42 U.S.C.
1201 et seq.).
38.2 Equivalent facilitation.
Departures from particular technical
and scoping requirements of these
guidelines by use of other designs and
technologies are permitted where the
alternative designs and technologies
used will provide substantially equivalent or greater access to and usability
of the vehicle. Departures are to be
considered on a case-by-case basis
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38.23
form is occupied. Alternatively, a barrier or system may be raised, lowered,
opened, closed, engaged, or disengaged
by the lift operator, provided an interlock or inherent design feature prevents the lift from rising unless the
barrier is raised or closed or the supplementary system is engaged.
(6) Platform surface. The platform surface shall be free of any protrusions
over 14 inch high and shall be slip resistant. The platform shall have a minimum clear width of 2812 inches at the
platform, a minimum clear width of 30
inches measured from 2 inches above
the platform surface to 30 inches above
the platform, and a minimum clear
length of 48 inches measured from 2
inches above the surface of the platform to 30 inches above the surface of
the platform. (See Fig. 1)
(7) Platform gaps. Any openings between the platform surface and the
raised barriers shall not exceed 58 inch
in width. When the platform is at vehicle floor height with the inner barrier
(if applicable) down or retracted, gaps
between the forward lift platform edge
and the vehicle floor shall not exceed 12
58
inch
horizontally
and
inch
vertically. Platforms on semi-automatic lifts may have a hand hold not
exceeding 112 inches by 412 inches located between the edge barriers.
(8) Platform entrance ramp. The entrance ramp, or loading-edge barrier
used as a ramp, shall not exceed a slope
of 1:8, measured on level ground, for a
maximum rise of 3 inches, and the
transition from roadway or sidewalk to
ramp may be vertical without edge
treatment up to 14 inch. Thresholds between 14 inch and 12 inch high shall be
beveled with a slope no greater than
1:2.
(9) Platform deflection. The lift platform (not including the entrance ramp)
shall not deflect more than 3 degrees
(exclusive of vehicle roll or pitch) in
any direction between its unloaded position and its position when loaded
with 600 pounds applied through a 26
inch by 26 inch test pallet at the centroid of the platform.
(10) Platform movement. No part of the
platform shall move at a rate exceeding 6 inches/second during lowering and
lifting an occupant, and shall not exceed 12 inches/second during deploying
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38.25
paragraph (a) of this section shall secure the wheelchair or mobility aid
facing toward the front of the vehicle.
Additional securement devices or systems shall secure the wheelchair or
mobility aid facing forward, or rearward with a padded barrier, extending
from a height of 38 inches from the vehicle floor to a height of 56 inches from
the vehicle floor with a width of 18
inches, laterally centered immediately
in back of the seated individual. In vehicles 22 feet in length or less, the required securement device may secure
the wheelchair or mobility aid either
facing toward the front of the vehicle
or facing rearward, with a padded barrier as described. Additional securement locations shall be either forward
or rearward facing with a padded barrier. Such barriers need not be solid
provided equivalent protection is afforded.
(5) Movement. When the wheelchair or
mobility aid is secured in accordance
with manufacturers instructions, the
securement system shall limit the
movement of an occupied wheelchair or
mobility aid to no more than 2 inches
in any direction under normal vehicle
operating conditions.
(6) Stowage. When not being used for
securement, or when the securement
area can be used by standees, the securement system shall not interfere
with passenger movement, shall not
present any hazardous condition, shall
be reasonably protected from vandalism, and shall be readily accessed
when needed for use.
(7) Seat belt and shoulder harness. For
each wheelchair or mobility aid securement device provided, a passenger seat
belt and shoulder harness, complying
with all applicable provisions of part
571 of this title, shall also be provided
for use by wheelchair or mobility aid
users. Such seat belts and shoulder
harnesses shall not be used in lieu of a
device which secures the wheelchair or
mobility aid itself.
38.25 Doors, steps and thresholds.
(a) Slip resistance. All aisles, steps,
floor areas where people walk and
floors in securement locations shall
have slip-resistant surfaces.
(b) Contrast. All step edges, thresholds and the boarding edge of ramps or
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38.39
General.
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38.53
38.53
38.55
Doorways.
(a) Clear width. (1) Passenger doorways on vehicle sides shall have clear
openings at least 32 inches wide when
open.
(2) If doorways connecting adjoining
cars in a multi-car train are provided,
and if such doorway is connected by an
aisle with a minimum clear width of 30
inches to one or more spaces where
wheelchair or mobility aid users can be
accommodated, then such doorway
shall have a minimum clear opening of
30 inches to permit wheelchair and mobility aid users to be evacuated to an
adjoining vehicle in an emergency.
(b) Signage. The International Symbol of Accessibility shall be displayed
on the exterior of accessible vehicles
operating on an accessible rapid rail
system unless all vehicles are accessible and are not marked by the access
symbol. (See Fig. 6.)
(c) Signals. Auditory and visual warning signals shall be provided to alert
passengers of closing doors.
(d) Coordination with boarding platform(1) Requirements. Where new vehicles will operate in new stations, the
design of vehicles shall be coordinated
with the boarding platform design such
that the horizontal gap between each
vehicle door at rest and the platform
shall be no greater than 3 inches and
the height of the vehicle floor shall be
within plus or minus 58 inch of the
platform height under all normal passenger load conditions. Vertical alignment may be accomplished by vehicle
air suspension or other suitable means
of meeting the requirement.
(2) Exception. New vehicles operating
in existing stations may have a floor
height within plus or minus 112 inches
of the platform height. At key stations, the horizontal gap between at
least one door of each such vehicle and
the platform shall be no greater than 3
inches.
(3) Exception. Retrofitted vehicles
shall be coordinated with the platform
in new and key stations such that the
horizontal gap shall be no greater than
4 inches and the height of the vehicle
floor, under 50% passenger load, shall
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from
the
Floor surfaces.
Between-car barriers.
38.71
General.
38.73
(b)(1) Vehicles intended to be operated solely in light rail systems confined entirely to a dedicated right-ofway, and for which all stations or stops
are designed and constructed for revenue service after the effective date of
standards for design and construction
in 37.21 and 37.23 of this title shall
provide level boarding and shall comply with 38.73(d)(1) and 38.85 of this
part.
(2) Vehicles designed for, and operated on, pedestrian malls, city streets,
or other areas where level boarding is
not practicable shall provide wayside
or car-borne lifts, mini-high platforms,
or other means of access in compliance
with 38.83 (b) or (c) of this part.
(c) If portions of the vehicle are
modified in a way that affects or could
affect accessibility, each such portion
shall comply, to the extent practicable,
with the applicable provisions of this
subpart. This provision does not require that inaccessible vehicles be retrofitted with lifts, ramps or other
boarding devices.
(d) Existing vehicles retrofitted to
comply with the one-car-per-train
rule at 37.93 of this title shall comply with 38.75, 38.77(c), 38.79(a) and
38.83(a) of this part and shall have, in
new and key stations, at least one door
which complies with 38.73 (a)(1), (b)
and (d) of this part. Vehicles previously
designed and manufactured in accordance with the accessibility requirements of part 609 of this title or the
Secretary of Transportation regulations implementing section 504 of the
Rehabilitation Act of 1973 that were in
effect before October 7, 1991, and which
can be entered and used from stations
in which they are to be operated, may
be used to satisfy the requirements of
37.93 of this title.
38.73 Doorways.
(a) Clear width(1) All passenger
doorways on vehicle sides shall have
minimum clear openings of 32 inches
when open.
(2) If doorways connecting adjoining
cars in a multi-car train are provided,
and if such doorway is connected by an
aisle with a minimum clear width of 30
inches to one or more spaces where
wheelchair or mobility aid users can be
accommodated, then such doorway
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38.83
on the station platform or street surface for a distance of 3 feet perpendicular to all points on the bottom step
tread. Such lights shall be located
below window level and shielded to protect the eyes of entering and exiting
passengers.
38.83 Mobility aid accessibility.
(a)(1) General. All new light rail vehicles, other than level entry vehicles,
covered by this subpart shall provide a
level-change mechanism or boarding
device (e.g., lift, ramp or bridge plate)
complying with either paragraph (b) or
(c) of this section and sufficient clearances to permit at least two wheelchair
or mobility aid users to reach areas,
each with a minimum clear floor space
of 48 inches by 30 inches, which do not
unduly restrict passenger flow. Space
to accommodate wheelchairs and mobility aids may be provided within the
normal area used by standees and designation of specific spaces is not required.
(2) Exception. If lifts, ramps or bridge
plates meeting the requirements of this
section are provided on station platforms or other stops required to be accessible, or mini-high platforms complying with 38.73(d) of this part are
provided, the vehicle is not required to
be equipped with a car-borne device.
Where each new vehicle is compatible
with a single platform-mounted access
system or device, additional systems or
devices are not required for each vehicle provided that the single device
could be used to provide access to each
new vehicle if passengers using wheelchairs or mobility aids could not be accommodated on a single vehicle.
(b) Vehicle lift(1) Design load. The
design load of the lift shall be at least
600 pounds. Working parts, such as cables, pulleys, and shafts, which can be
expected to wear, and upon which the
lift depends for support of the load,
shall have a safety factor of at least
six, based on the ultimate strength of
the material. Nonworking parts, such
as platform, frame, and attachment
hardware which would not be expected
to wear, shall have a safety factor of at
least three, based on the ultimate
strength of the material.
(2) Controls(i) Requirements. The
controls shall be interlocked with the
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38.83
(13) Handrails. Platforms on lifts
shall be equipped with handrails, on
two sides, which move in tandem with
the lift which shall be graspable and
provide support to standees throughout
the entire lift operation. Handrails
shall have a usable component at least
8 inches long with the lowest portion a
minimum 30 inches above the platform
and the highest portion a maximum 38
inches above the platform. The handrails shall be capable of withstanding a
force of 100 pounds concentrated at any
point on the handrail without permanent deformation of the rail or its supporting structure. Handrails shall have
a cross-sectional diameter between 114
inches and 112 inches or shall provide
an equivalent grasping surface, and
have eased edges with corner radii of
not less than 18 inch. Handrails shall be
placed to provide a minimum 112 inches
knuckle clearance from the nearest adjacent surface. Handrails shall not
interfere with wheelchair or mobility
aid maneuverability when entering or
leaving the vehicle.
(c) Vehicle ramp or bridge plate(1) Design load. Ramps or bridge plates 30
inches or longer shall support a load of
600 pounds, placed at the centroid of
the ramp or bridge plate distributed
over an area of 26 inches, with a safety
factor of at least 3 based on the ultimate strength of the material. Ramps
or bridge plates shorter than 30 inches
shall support a load of 300 pounds.
(2) Ramp surface. The ramp or bridge
plate surface shall be continuous and
slip resistant, shall not have protrusions from the surface greater then 14
inch, shall have a clear width of 30
inches, and shall accommodate both
four-wheel and three-wheel mobility
aids.
(3) Ramp threshold. The transition
from roadway or station platform and
the transition from vehicle floor to the
ramp or bridge plate may be vertical
without edge treatment up to 14 inch.
Changes in level between 14 inch and 12
inch shall be beveled with a slope no
greater than 1:2.
(4) Ramp barriers. Each side of the
ramp or bridge plate shall have barriers at least 2 inches high to prevent
mobility aid wheels from slipping off.
(5) Slope. Ramps or bridge plates shall
have the least slope practicable. If the
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Between-car barriers.
General.
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38.93 Doorways.
(a) Clear width. (1) At least one door
on each side of the car from which passengers board opening onto station
platforms and at least one adjacent
doorway into the passenger coach compartment, if provided, shall have a
minimum clear opening of 32 inches.
(2) If doorways connecting adjoining
cars in a multi-car train are provided,
and if such doorway is connected by an
aisle with a minimum clear width of 30
inches to one or more spaces where
wheelchair or mobility aid users can be
accommodated, then such doorway
shall have, to the maximum extent
practicable in accordance with the regulations issued under the Federal Railroad Safety Act of 1970 (49 CFR parts
229 and 231), a clear opening of 30
inches.
(b) Passageways. A route at least 32
inches wide shall be provided from
doors required to be accessible by paragraph (a)(1) of this section to seating
38.93
locations complying with 38.95(d) of
this part. In cars where such doorways
require passage through a vestibule,
such vestibule shall have a minimum
width of 42 inches. (See Fig. 3.)
(c) Signals. If doors to the platform
close automatically or from a remote
location, auditory and visual warning
signals shall be provided to alert passengers or closing doors.
(d) Coordination with boarding platform(1) Requirements. Cars operating
in stations with high platforms, or
mini-high platforms, shall be coordinated with the boarding platform design such that the horizontal gap between a car at rest and the platform
shall be no greater than 3 inches and
the height of the car floor shall be
within plus or minus 58 inch of the
platform height. Vertical alignment
may be accomplished by car air suspension, platform lifts or other devices, or
any combination.
(2) Exception. New vehicles operating
in existing stations may have a floor
height within plus or minus 112 inches
of the platform height. At key stations, the horizontal gap between at
least one accessible door of each such
vehicle and the platform shall be no
greater than 3 inches.
(3) Exception. Where platform setbacks do not allow the horizontal gap
or vertical alignment specified in paragraph (d)(1) or (d)(2) of this section,
car, platform or portable lifts complying with 38.95(b) of this part, or car
or platform ramps or bridge plates,
complying with 38.95(c) of this part,
shall be provided.
(4) Exception. Retrofitted vehicles
shall be coordinated with the platform
in new and key stations such that the
horizontal gap shall be no greater than
4 inches and the height of the vehicle
floor, under 50% passenger load, shall
be within plus or minus 2 inches of the
platform height.
(e) Signage. The International Symbol of Accessibility shall be displaced
on the exterior of all doors complying
with this section unless all cars are accessible and are not marked by the access symbol (see Fig. 6). Appropriate
signage shall also indicate which accessible doors are adjacent to an accessible restroom, if applicable.
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38.95
wide. When the lift is at car floor
height with the inner barrier down (if
applicable) or retracted, gaps between
the forward lift platform edge and car
floor shall not exceed 12 inch horizontally and 58 inch vertically.
(8) Platform entrance ramp. The entrance ramp, or loading-edge barrier
used as a ramp, shall not exceed a slope
of 1:8, when measured on level ground,
for a maximum rise of 3 inches, and the
transition from station platform to
ramp may be vertical without edge
treatment up to 14 inch. Thresholds between 14 inch and 12 inch high shall be
beveled with a slope no greater than
1:2.
(9) Platform deflection. The lift platform (not including the entrance ramp)
shall not deflect more than 3 degrees
(exclusive of vehicle roll) in any direction between its unloaded position and
its position when loaded with 600
pounds applied through a 26 inch by 26
inch test pallet at the centroid of the
lift platform.
(10) Platform movement. No part of the
platform shall move at a rate exceeding 6 inches/second during lowering and
lifting an occupant, and shall not exceed 12 inches/second during deploying
or stowing. This requirement does not
apply to the deployment or stowage cycles of lifts that are manually deployed
or stowed. The maximum platform horizontal and vertical acceleration when
occupied shall be 0.3g.
(11) Boarding direction. The lift shall
permit both inboard and outboard facing of wheelchairs and mobility aids.
(12) Use by standees. Lifts shall accommodate persons using walkers,
crutches, canes or braces or who otherwise have difficulty using steps. The
lift may be marked to indicate a preferred standing position.
(13) Handrails. Platforms on lifts
shall be equipped with handrails, on
two sides, which move in tandem with
the lift which shall be graspable and
provide support to standees throughout
the entire lift operation. Handrails
shall have a usable component at least
8 inches long with the lowest portion a
minimum 30 inches above the platform
and the highest portion a maximum 38
inches above the platform. The handrails shall be capable of withstanding a
force of 100 pounds concentrated at any
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point on the handrail without permanent deformation of the rail or its supporting structure. The handrail shall
have a cross-sectional diameter between 114 inches and 112 inches or shall
provide an equivalent grasping surface,
and have eased edges with corner radii
of not less than 18 inch. Handrails shall
be placed to provide a minimum 112
inches knuckle clearance from the
nearest adjacent surface. Handrails
shall not interfere with wheelchair or
mobility aid maneuverability when entering or leaving the car.
(c) Car ramp or bridge plate(1) Design
load. Ramps or bridge plates 30 inches
or longer shall support a load of 600
pounds, placed at the centroid of the
ramp or bridge plate distributed over
an area of 26 inches by 26 inches, with
a safety factor of at least 3 based on
the ultimate strength of the material.
Ramps or bridge plates shorter than 30
inches shall support a load of 300
pounds.
(2) Ramp surface. The ramp or bridge
plate surface shall be continuous and
slip resistant, shall not have protrusions from the surface greater than 14
inch high, shall have a clear width of 30
inches and shall accommodate both
four-wheel and three-wheel mobility
aids.
(3) Ramp threshold. The transition
from station platform to the ramp or
bridge plate and the transition from
car floor to the ramp or bridge plate
may be vertical without edge treatment up to 14 inch. Changes in level between 14 inch and 12 inch shall be beveled with a slope no greater than 1:2.
(4) Ramp barriers. Each side of the
ramp or bridge plate shall have barriers at least 2 inches high to prevent
mobility aid wheels from slipping off.
(5) Slope. Ramps or bridge plates shall
have the least slope practicable. If the
height of the vehicle floor, under 50%
passenger load, from which the ramp is
deployed is 3 inches or less above the
station platform a maximum slope of
1:4 is permitted; if the height of the vehicle floor, under 50% passenger load,
from which the ramp is deployed is 6
inches or less, but more than 3 inches,
above the station platform a maximum
slope of 1:6 is permitted; if the height
of the vehicle floor, under 50% passenger load, from which the ramp is de-
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38.105
boarding process, to the extent permitted by part 231 of this title.
38.99 Floors, steps and thresholds.
(a) Floor surfaces on aisles, step
treads, places for standees, and areas
where wheelchair and mobility aid
users are to be accommodated shall be
slip-resistant.
(b) All thresholds and step edges
shall have a band of color(s) running
the full width of the step or threshold
which contrasts from the step tread
and riser or adjacent floor, either lighton-dark or dark-on-light.
38.101 Lighting.
(a) Any stepwell or doorway with a
lift, ramp or bridge plate shall have,
when the door is open, at least 2 footcandles of illumination measured on
the step tread, ramp, bridge plate, or
lift platform.
(b) The doorways of cars not operating at lighted station platforms shall
have outside lights which, when the
door is open, provide at least 1 footcandle of illumination on the station
platform surface for a distance of 3 feet
perpendicular to all points on the bottom step tread edge. Such lights shall
be shielded to protect the eyes of entering and exiting passengers.
38.103 Public information system.
(a) Each car shall be equipped with
an interior public address system permitting transportation system personnel, or recorded or digitized human
speech messages, to announce stations
and provide other passenger information. Alternative systems or devices
which provide equivalent access are
also permitted.
(b) [Reserved]
38.105 Priority seating signs.
(a) Each car shall contain sign(s)
which indicate that certain seats are
priority seats for persons with disabilities and that other passengers should
make such seats available to those who
wish to use them.
(b) Characters on signs required by
paragraph (a) shall have a width-toheight ratio between 3:5 and 1:1 and a
stroke width-to-height ratio between
1:5 and 1:10, with a minimum character
height (using an upper case X) of 58
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38.107
38.107
Restrooms.
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38.113
EFFECTIVE DATE NOTE: At 76 FR 57939,
Sept. 19, 2011, 38.111 was amended by removing the words If physically and operationally practicable and adding in their place
the words Unless structurally or operationally impracticable. in paragraph (b)(1); and
by removing the words not structurally or
operationally practicable and adding, in
their place, the words structurally or operationally impracticable in paragraph (b)(2),
effective Oct. 19, 2011.
38.113
Doorways.
(a) Clear width. (1) At least one doorway, on each side of the car from which
passengers board, of each car required
to be accessible by 38.111(a) and where
the spaces required by 38.111(d) of this
part are located, and at least one adjacent doorway into coach passenger
compartments shall have a minimum
clear opening width of 32 inches.
(2) Doorways at ends of cars connecting two adjacent cars, to the maximum extent practicable in accordance
with regulations issued under the Federal Railroad Safety Act of 1970 (49
CFR parts 229 and 231), shall have a
clear opening width of 32 inches to permit wheelchair and mobility aid users
to enter into a single-level dining car,
if available.
(b) Passageway. Doorways required to
be accessible by paragraph (a) of this
section shall permit access by persons
using mobility aids and shall have an
unobstructed passageway at least 32
inches wide leading to an accessible
sleeping compartment complying with
38.127 of this part or seating locations
complying with 38.125(d) of this part.
In cars where such doorways require
passage through a vestibule, such vestibule shall have a minimum width of
42 inches. (see Fig. 4)
(c) Signals. If doors to the platform
close automatically or from a remote
location, auditory and visual warning
signals shall be provided to alert passengers of closing doors.
(d) Coordination with boarding platforms(1) Requirements. Cars which provide level-boarding in stations with
high platforms shall be coordinated
with the boarding platform or minihigh platform design such that the horizontal gap between a car at rest and
the platform shall be no greater than 3
inches and the height of the car floor
shall be within plus or minus 58 inch of
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Lighting.
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nected to such a space by an unobstructed path having a minimum width
of 32 inches.
38.125
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the lift platform is occupied. The controls shall allow reversal of the lift operation sequence, such as raising or
lowering a platform that is part way
down, without allowing an occupied
platform to fold or retract into the
stowed position.
(ii) Exception. Where physical or safety constraints prevent the deployment
at some stops of a lift having its long
dimension perpendicular to the car
axis, the transportation entity may
specify a lift which is designed to deploy with its long dimension parallel to
the car axis and which pivots into or
out of the car while occupied (i.e., rotary lift). The requirements of paragraph (b)(2)(i) of this section prohibiting the lift from being stowed while
occupied shall not apply to a lift design
of this type if the stowed position is
within the passenger compartment and
the lift is intended to be stowed while
occupied.
(iii) Exception. The brake or propulsion system interlocks requirement
does not apply to platform mounted or
portable lifts provided that a mechanical, electrical or other system operates to ensure that cars do not move
when the lift is in use.
(3) Emergency operation. The lift shall
incorporate an emergency method of
deploying, lowering to ground or station platform level with a lift occupant, and raising and stowing the
empty lift if the power to the lift fails.
No emergency method, manual or otherwise, shall be capable of being operated in a manner that could be hazardous to the lift occupant or to the
operator when operated according to
manufacturers instructions, and shall
not permit the platform to be stowed
or folded when occupied, unless the lift
is a rotary lift and is intended to be
stowed while occupied.
(4) Power or equipment failure. Platforms stowed in a vertical position, and
deployed platforms when occupied,
shall have provisions to prevent their
deploying, falling, or folding any faster
than 12 inches/second or their dropping
of an occupant in the event of a single
failure of any load carrying component.
(5) Platform barriers. The lift platform
shall be equipped with barriers to prevent any of the wheels of a wheelchair
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38.125
placed to provide a minimum 112 inches
knuckle clearance from the nearest adjacent surface. Handrails shall not
interfere with wheelchair or mobility
aid maneuverability when entering or
leaving the car.
(c) Car ramp or bridge plate(1) Design
load. Ramps or bridge plates 30 inches
or longer shall support a load of 600
pounds, placed at the centroid of the
ramp or bridge plate distributed over
an area of 26 inches by 26 inches, with
a safety factor of at least 3 based on
the ultimate strength of the material.
Ramps or bridge plates shorter than 30
inches shall support a load of 300
pounds.
(2) Ramp surface. The ramp or bridge
plate surface shall be continuous and
slip resistant, shall not have protrusions from the surface greater than 14
inch high, shall have a clear width of 30
inches and shall accommodate both
four-wheel and three-wheel mobility
aids.
(3) Ramp threshold. The transition
from station platform to the ramp or
bridge plate and the transition from
car floor to the ramp or bridge plate
may be vertical without edge treatment up to 14 inch. Changes in level between 14 inch and 12 inch shall be beveled with a slope no greater than 1:2.
(4) Ramp barriers. Each side of the
ramp or bridge plate shall have barriers at least 2 inches high to prevent
mobility aid wheels from slipping off.
(5) Slope. Ramps or bridge plates shall
have the least slope practicable. If the
height of the vehicle floor, under 50%
passenger load, from which the ramp is
deployed is 3 inches or less above the
station platform a maximum slope of
1:4 is permitted; if the height of the vehicle floor, under 50% passenger load,
from which the ramp is deployed is 6
inches or less, but more than 3 inches,
above the station platform a maximum
slope of 1:6 is permitted; if the height
of the vehicle floor, under 50% passenger load, from which the ramp is deployed is 9 inches or less, but more
than 6 inches, above the station platform a maximum slope of 1:8 is permitted; if the height of the vehicle
floor, under 50% passenger load, from
which the ramp is deployed is greater
than 9 inches above the station platform a slope of 1:12 shall be achieved.
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38.127
Folding or telescoping ramps are permitted provided they meet all structural requirements of this section.
(6) Attachment(i) Requirement. When
in use for boarding or alighting, the
ramp or bridge plate shall be attached
to the vehicle, or otherwise prevented
from moving such that it is not subject
to displacement when loading or unloading a heavy power mobility aid and
that any gaps between vehicle and
ramp or bridge plate, and station platform and ramp or bridge plate, shall
not exceed 58 inch.
(ii) Exception. Ramps or bridge plates
which are attached to, and deployed
from, station platforms are permitted
in lieu of car devices provided they
meet the displacement requirements of
paragraph (c)(6)(i) of this section.
(7) Stowage. A compartment, securement system, or other appropriate
method shall be provided to ensure
that stowed ramps or bridge plates, including portable ramps or bridge plates
stowed in the passenger area, do not
impinge on a passengers wheelchair or
mobility aid or pose any hazard to passengers in the event of a sudden stop.
(8) Handrails. If provided, handrails
shall allow persons with disabilities to
grasp them from outside the car while
starting to board, and to continue to
use them throughout the boarding
process, and shall have the top between
30 inches and 38 inches above the ramp
surface. The handrails shall be capable
of withstanding a force of 100 pounds
concentrated at any point on the handrail without permanent deformation of
the rail or its supporting structure.
The handrail shall have a cross-sectional diameter between 114 inches and
112 inches or shall provide an equivalent grasping surface, and have eased
edges with corner radii of not less than
18 inch. Handrails shall not interfere
with wheelchair or mobility aid maneuverability when entering or leaving
the car.
(d) Seating(1) Requirements. All
intercity rail cars required to be accessible by 38.111 (a) and (e) of this subpart shall provide at least one, but not
more than two, mobility aid seating location(s) complying with paragraph
(d)(2) of this section; and at least one,
but not more than two, seating location(s) complying with paragraph (d)(3)
38.127
Sleeping compartments.
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General.
38.159
board, and to continue using such
handrails or stanchions throughout the
boarding process. Handrails shall have
a cross-sectional diameter between 114
inches and 112 inches or shall provide
an equivalent grasping surface, and
have eased edges with corner radii of
not less than 18 inch. Handrails shall be
placed to provide a minimum 112 inches
knuckle clearance from the nearest adjacent surface. Where on-board fare
collection devices are used, a horizontal passenger assist shall be located
between boarding passengers and the
fare collection device and shall prevent
passengers from sustaining injuries on
the fare collection device or windshield
in the event of a sudden deceleration.
Without restricting the vestibule
space, the assist shall provide support
for a boarding passenger from the door
through the boarding procedure. Passengers shall be able to lean against
the assist for security while paying
fares.
(b) Where provided within passenger
compartments, handrails or stanchions
shall be sufficient to permit safe onboard circulation, seating and standing
assistance, and alighting by persons
with disabilities.
38.157 Lighting.
(a) Any stepwell or doorway immediately adjacent to the driver shall
have, when the door is open, at least 2
foot-candles of illumination measured
on the step tread.
(b) The vehicle doorway shall have
outside light(s) which, when the door is
open, provide at least 1 foot-candle of
illumination on the pathway to the
door for a distance of 3 feet (915 mm) to
the bottom step tread or lift outer
edge. Such light(s) shall be shielded to
protect the eyes of entering and exiting
passengers.
[56 FR 45756, Sept. 6, 1991, as amended at 63
FR 51698, 51702, Sept. 28, 1998]
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38.159
ing 6 inches/second (150 mm/sec) during
lowering and lifting an occupant, and
shall not exceed 12 inches/second (300
mm/sec) during deploying or stowing.
This requirement does not apply to the
deployment or stowage cycles of lifts
that are manually deployed or stowed.
The maximum platform horizontal and
vertical acceleration when occupied
shall be 0.3g.
(11) Boarding direction. The lift shall
permit both inboard and outboard facing of wheelchair and mobility aid
users.
(12) Use by standees. Lifts shall accommodate persons using walkers,
crutches, canes or braces or who otherwise have difficulty using steps. The
platform may be marked to indicate a
preferred standing position.
(13) Handrails. Platforms on lifts
shall be equipped with handrails on two
sides, which move in tandem with the
lift, and which shall be graspable and
provide support to standees throughout
the entire lift operation. Handrails
shall have a usable component at least
8 inches (200 mm) long with the lowest
portion a minimum 30 inches (760 mm)
above the platform and the highest
portion a maximum 38 inches (965 mm)
above the platform. The handrails shall
be capable of withstanding a force of
100 pounds (445 N) concentrated at any
point on the handrail without permanent deformation of the rail or its supporting structure. The handrail shall
have a cross-sectional diameter between 114 inches (32 mm) and 112 inches
(38 mm) or shall provide an equivalent
grasping surface, and have eased edges
with corner radii of not less than 58
inch (3.5 mm). Handrails shall be placed
to provide a minimum 112 inches (38
mm) knuckle clearance from the nearest adjacent surface. Handrails shall
not interfere with wheelchair or mobility aid maneuverability when entering
or leaving the vehicle.
(c) Vehicle ramp(1) Design load.
Ramps 30 inches (760 mm) or longer
shall support a load of 600 pounds (2665
N), placed at the centroid of the ramp
distributed over an area of 26 inches by
26 inches (660 mm by 660 mm), with a
safety factor of at least 3 based on the
ultimate strength of the material.
Ramps shorter than 30 inches (760 mm)
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38.159
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38.173
curement locations, shall have an armrest on the aisle side which can be
raised, removed, or retracted to permit
easy entry or exit.
[63 FR 51700, 51703, Sept. 28, 1998]
General.
(a) New, used and remanufactured vehicles and conveyances for systems not
covered by other subparts of this part,
to be considered accessible by regulations in part 37 of this title shall comply with this subpart.
(b) If portions of the vehicle or conveyance are modified in a way that affects or could affect accessibility, each
such portion shall comply, to the extent practicable, with the applicable
provisions of this subpart. This provision does not require that inaccessible
vehicles be retrofitted with lifts, ramps
or other boarding devices.
(c) Requirements for vehicles and
systems not covered by this part shall
be determined on a case-by-case basis
by the Department of Transportation
in consultation with the U.S. Architectural and Transportation Barriers
Compliance Board (Access Board).
38.173 Automated guideway transit
vehicles and systems.
(a) Automated Guideway Transit
(AGT) vehicles and systems, sometimes
called people movers, operated in
airports and other areas where AGT vehicles travel at slow speed (i.e., at a
speed of no more than 20 miles per hour
at any location on their route during
normal operation), shall comply with
the provisions of 38.53 (a) through (c),
and 38.55 through 38.61 of this part for
rapid rail vehicles and systems.
(b) Where the vehicle covered by
paragraph (a) will operate in an accessible station, the design of vehicles
shall be coordinated with the boarding
platform design such that the horizontal gap between a vehicle door at
rest and the platform shall be no greater than 1 inch and the height of the vehicle floor shall be within plus or
minus 12 inch of the platform height
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38.175
under all normal passenger load conditions. Vertical alignment may be accomplished by vehicle air suspension or
other suitable means of meeting the requirement.
(c) In stations where open platforms
are not protected by platform screens,
a suitable device or system shall be
provided to prevent, deter or warn individuals from stepping off the platform
between cars. Acceptable devices include, but are not limited to, pantograph gates, chains, motion detectors
or other appropriate devices.
(d) Light rail and rapid rail AGT vehicles and systems shall comply with
subparts D and C of this part, respectively. AGT systems whose vehicles
travel at a speed of more than 20 miles
per hour at any location on their route
during normal operation are covered
under this paragraph rather than under
paragraph (a) of this section.
[56 FR 45756, Sept. 6, 1991, as amended at 61
FR 25416, May 21, 1996]
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ER28SE98.000</GPH>
FIGURES TO PART 38
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EC02FE91.194</GPH>
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EC02FE91.195</GPH>
[56 FR 45756, Sept. 6, 1991, as amended at 63 FR 51700, 51703, Sept. 28, 1998]
This appendix contains materials of an advisory nature and provides additional information that should help the reader to understand the minimum requirements of the
standards or to design vehicles for greater
accessibility. Each entry is applicable to all
subparts of this part except where noted.
Nothing in this appendix shall in any way
obviate any obligation to comply with the
requirements of the standards themselves.
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223214
of devices are visual display systems and listening systems. However, it should be noted
that while visual display systems accommodate persons who are deaf or are hearing impaired, assistive listening systems aid only
those with a partial loss of hearing.
A. Visual Display Systems. Announcements
may be provided in a visual format by the
use of electronic message boards or video
monitors.
Electronic message boards using a light
emitting diode (LED) or flip-dot display
are currently provided in some transit stations and terminals and may be usable in vehicles. These devices may be used to provide
real time or pre-programmed messages; however, real time message displays require the
availability of an employee for keyboard
entry of the information to be announced.
Video monitor systems, such as visual paging systems provided in some airports (e.g.,
Baltimore-Washington International Airport), are another alternative. The Architectural and Transportation Barriers Compliance Board (Access Board) can provide technical assistance and information on these
systems (Airport TDD Access: Two Case
Studies, (1990)).
B. Assistive Listening Systems. Assistive listening systems (ALS) are intended to augment standard public address and audio systems by providing signals which can be received directly by persons with special receivers or their own hearing aids and which
eliminate or filter background noise. Magnetic induction loops, infra-red and radio frequency systems are types of listening systems which are appropriate for various applications.
An assistive listening system appropriate
for transit vehicles, where a group of persons
or where the specific individuals are not
known in advance, may be different from the
system appropriate for a particular individual provided as an auxiliary aid or as part
of a reasonable accommodation. The appropriate device for an individual is the type
that individual can use, whereas the appropriate system for a station or vehicle will
necessarily be geared toward the average
or aggregate needs of various individuals.
Earphone jacks with variable volume controls can benefit only people who have slight
hearing loss and do not help people who use
hearing aids. At the present time, magnetic
induction loops are the most feasible type of
listening system for people who use hearing
aids equipped with T-coils, but people
without hearing aids or those with hearing
aids not equipped with inductive pick-ups
cannot use them without special receivers.
Radio frequency systems can be extremely
effective and inexpensive. People without
hearing aids can use them, but people with
hearing aids need a special receiver to use
them as they are presently designed. If hearing aids had a jack to allow a by-pass of
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Subpart AGeneral
Sec.
39.1 What is the purpose of this part?
39.3 What do the terms in this rule mean?
39.5 To whom do the provisions of this part
apply?
39.7 What other authorities concerning nondiscrimination on the basis of disability
apply to owners and operators of passenger vessels?
39.9 What may the owner or operator of a
foreign-flag vessel do if it believes a provision of a foreign nations law prohibits
compliance with a provision of this part?
39.11 [Reserved]
39.13 When must PVOs comply with the provisions of this part?
Pt. 39
Subpart BNondiscrimination and Access
to Services
39.21 What is the general nondiscrimination
requirement of this part?
39.23 What are the requirements concerning
contractors to owners and operators of
passenger vessels?
39.25 May PVOs refuse to provide transportation or use of a vessel on the basis of
disability?
39.27 Can a PVO take action to deny transportation or restrict services to a passenger with a disability based on safety
concerns?
39.29 May PVOs limit the number of passengers with a disability on a passenger
vessel?
39.31 May PVOs limit access to transportation or use of a vessel on the basis that
a passenger has a communicable disease?
39.33 May PVOs require a passenger with a
disability to provide a medical certificate?
39.35 May PVOs require a passenger with a
disability to provide advance notice that
he or she is traveling on or using a passenger vessel when no special services
are sought?
39.37 May PVOs require a passenger with a
disability to provide advance notice in
order to obtain particular auxiliary aids
and services or to arrange group travel?
39.39 How do PVOs ensure that passengers
with disabilities are able to use accessible cabins?
39.41 May a passenger with a disability be
required to travel with another person?
39.43 May PVOs impose special charges on
passengers with a disability for providing
services required by this rule?
39.45 May PVOs impose other restrictions
on passengers with a disability that they
do not impose on other passengers?
39.47 May PVOs require passengers with a
disability to sign waivers or releases?
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39.1
Subpart AGeneral
39.1 What is the purpose of this part?
The purpose of this part is to carry
out the Americans with Disabilities
Act and Section 504 of the Rehabilitation Act of 1973 with respect to passenger vessels. This rule prohibits owners and operators of passenger vessels,
including U.S. and foreign-flag vessels,
from discriminating against passengers
on the basis of disability; requires ves-
sels and related facilities to be accessible; and requires owners and operators of vessels to take steps to accommodate passengers with disabilities.
39.3 What do the terms in this rule
mean?
In this regulation, the terms listed in
this section have the following meanings:
Accessible means, with respect to
vessels and facilities, complying with
the applicable requirements of this
Part.
The Act or ADA means the
Americans with Disabilities Act of 1990
(Pub. L. 101336, 104 Stat. 327, 42 U.S.C.
1210112213 and 47 U.S.C. 225 and 611), as
it may be amended from time to time.
Assistive device means any piece
of equipment that assists a passenger
with a disability to cope with the effects of his or her disability. Such devices are intended to assist a passenger
with a disability to hear, see, communicate, maneuver, or perform other
functions of daily life, and may include
medical devices.
Auxiliary aids and services includes:
(1) Qualified interpreters on-site or
through video remote interpreting
(VRI) services; notetakers; real-time
computer-aided transcription services;
written materials; exchange of written
notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible
with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice,
text, and video-based telecommunications products and systems, including
text
telephones
(TTYs),
videophones, and captioned telephones,
or equally effective telecommunications devices; videotext displays; accessible electronic and information
technology; or other effective methods
of making aurally delivered information available to individuals who are
deaf or hard of hearing;
(2) Qualified readers, taped texts,
audio recordings, brailed materials and
displays, screen reader software, magnification software, optical readers,
secondary auditory programs (SAP),
large print materials, accessible electronic and information technology, or
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39.3
diseases and conditions as orthopedic,
visual, speech, and hearing impairments; cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis,
cancer, heart disease, diabetes, mental
retardation, emotional illness, specific
learning disabilities, HIV disease, tuberculosis, drug addiction and alcoholism;
(iv) The phrase physical or mental
impairment does not include homosexuality or bisexuality.
(2) The phrase major life activities
means functions such as caring for
ones self, performing manual tasks,
walking, seeing, hearing, speaking,
breathing, learning, and work.
(3) The phrase has a record of such an
impairment means has a history of, or
has been misclassified as having, a
mental or physical impairment that
substantially limits one or more major
life activities.
(4) The phrase is regarded as having
such an impairment means
(i) Has a physical or mental impairment that does not substantially limit
major life activities, but which is
treated by a public or private entity as
constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits a major
life activity only as a result of the attitudes of others toward such an impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this definition
but is treated by a public or private entity as having such an impairment.
(5) The term disability does not include
(i) Transvestism, transsexualism,
pedophilia, exhibitionism, voyeurism,
gender identity disorders not resulting
from physical impairments, or other
sexual behavior disorders;
(ii) Compulsive gambling, kleptomania, or pyromania; or
(iii) Psychoactive substance abuse
disorders resulting from the current illegal use of drugs.
Facility means all or any portion
of buildings, structures, sites, complexes, equipment, roads, walks, passageways, parking lots, or other real or
personal property, including the site
where the building, property, structure, or equipment is located.
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39.3
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39.9
condition of compliance with section
504 of the Rehabilitation Act of 1973
and of receiving financial assistance.
(b) You are also subject to ADA regulations of the Department of Justice
(28 CFR part 35 or 36, as applicable).
39.9 What may the owner or operator
of a foreign-flag vessel do if it believes a provision of a foreign nations law prohibits compliance
with a provision of this part?
(a) If you are the PVO of a foreignflag vessel, and you believe that a binding legal requirement of a foreign nation precludes you from complying
with a provision of this part, you may
request a waiver of the provision of
this part.
(b) You must send such a waiver request to the Department.
(c) Your waiver request must include
the following elements:
(1) A copy, in the English language,
of the foreign law involved;
(2) A description of how the binding
legal requirement of a foreign nation
applies and how it precludes compliance with a provision of this part;
(3) A description of the alternative
means you will use, if the waiver is
granted, to effectively achieve the objective of the provision of this part
subject to the waiver or, if applicable,
a justification of why it would be impossible to achieve this objective in
any way.
(d) If you submit such a waiver request before November 3, 2010 you may
continue to apply the foreign legal requirement pending the Departments
response to your waiver request.
(e) The Department shall grant the
waiver request if it determines that the
binding legal requirement of a foreign
nation applies, that it does preclude
compliance with a provision of this
part, and that the PVO has provided an
effective alternative means of achieving the objective of the provision of
this part subject to the waiver or clear
and convincing evidence that it would
be impossible to achieve this objective
in any way.
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39.11
39.11
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39.31
of the vessel or impede emergency egress
from the vessel.
Example 3 to paragraph 39.27(a): You could
restrict access to a lifeboat for a mobility
device that would limit access to the lifeboat
for other passengers.
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39.31
(c) Any action of those listed in paragraph (a) of this section that you take
under paragraph (b) of this section
must be the least drastic action you
can take to protect the health of other
passengers. For example, if you can
protect the health of other passenger
by imposing a condition on the transportation of a passenger with a communicable disease (e.g., limiting the
passengers access to certain facilities
on the vessel for a period of time), you
cannot totally deny transportation on
the vessel.
(d) For purposes of paragraph (a)(4) of
this section, a medical certificate is a
written statement from the passengers
physician saying that the passengers
disease or infection would not, under
the present conditions in the particular
passengers case, be readily communicable to other persons by casual contact during the normal course of the
passengers transportation or use of
the vessel. Such a medical certificate
must state any conditions or precautions that would have to be observed to prevent the transmission of
the disease or infection to other persons in the normal course of the passengers transportation on or use of the
vessel. It must be sufficiently recent to
pertain directly to the communicable
disease presented by the passenger at
the time the passenger seeks to board
the vessel.
(e) If your action under this section
results in the postponement of a passengers transportation or use of the
vessel, you must permit the passenger
to travel or use the vessel at a later
available time (up to one year from the
date of the postponed trip or use of the
vessel) at the cost that would have applied to the passengers originally
scheduled trip or use of the vessel without penalty or, at the passengers discretion, provide a refund for any unused transportation or use of the vessel. If there is no available reservation
within one year, you must provide a refund.
(f) If you take any action under this
section that restricts a passengers
transportation or use of the vessel, you
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clearly and on time, to the people responsible for providing the requested
service or accommodation.
39.39 How do PVOs ensure that passengers with disabilities are able to
use accessible cabins?
39.39
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39.55
Subpart DAccessibility of
Landside Facilities
39.61 What requirements must PVOs
meet concerning the accessibility of
terminals and other landside facilities?
As a PVO, you must comply with the
following requirements with respect to
all terminal and other landside facili-
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39.85
functional areas of the terminal, such
as ticket counters and baggage checking/claim. It also includes a brief stop
upon request at an accessible toilet
room.
39.83 What are PVOs obligations for
assisting passengers with a disability in getting on and off a passenger vessel?
(a) If a passenger with a disability
can readily get on or off a passenger
vessel without assistance, you are not
required to provide such assistance to
the passenger. You must not require
such a passenger with a disability to
accept assistance from you in getting
on or off the vessel unless it is provided
to all passengers as a matter of course.
(b) With respect to a passenger with
a disability who is not able to get on or
off a passenger vessel without assistance, you must promptly provide assistance that ensures that the passenger can get on or off the vessel.
(c) When you have to provide assistance to a passenger with a disability in
getting on or off a passenger vessel,
you may use any available means to
which the passenger consents (e.g.,
lifts, ramps, boarding chairs, assistance by vessel personnel).
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39.101
tion you impose on the use of an other
powered mobility device on your vessel
must be limited to the minimum necessary to meet a legitimate safety requirement. For example, if a device can
be accommodated in some spaces of the
vessel but not others because of a legitimate safety requirement, you could
not completely exclude the device from
the vessel.
(e) As a PVO, you are not required to
permit passengers with a disability to
bring wheelchairs or other powered mobility devices into lifeboats or other
survival craft, in the context of an
emergency evacuation of the vessel.
39.95 May PVOs limit their liability
for loss of or damage to wheelchairs
or other assistive devices?
Consistent with any applicable requirements of international law, you
must not apply any liability limits
with respect to loss of or damage to
wheeled mobility assistive devices or
other assistive devices. The criterion
for calculating the compensation for a
lost, damaged, or destroyed wheelchair
or other assistive device is the original
purchase price of the device.
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39.109 What
enforcement
actions
may be taken under this part?
(a) The Department of Transportation investigates complaints and
conducts reviews or other inquiries
into the compliance with this part of
PVOs that are Title II entities.
(b) As a PVO subject to Title II of the
ADA, you must be prepared to provide
to the Department of Transportation a
written explanation of your action in
any situation in which you exclude or
restrict an individual with a disability
or any mobility or other assistive device used by such an individual with respect to the use of your vessel.
(c) The Department of Transportation investigates complaints conducts compliance reviews or other inquiries into the compliance of this part
of PVOs, whether private or public entities, that receive Federal financial
assistance from the Department, under
section 504 of the Rehabilitation Act of
1973, as amended.
(d) The Department may refer any
matter concerning the compliance of
PVOs with this part to the Department
of Justice for enforcement action.
(e) The Department of Justice investigates complaints and conducts reviews or other inquiries into the compliance with this part of PVOs that are
Title III entities.
(f) The Department of Justice may
file suit in Federal court against both
Pt. 40
Title II and Title III PVOs for violations of this part.
PART
40PROCEDURES
FOR
TRANSPORTATION WORKPLACE
DRUG AND ALCOHOL TESTING
PROGRAMS
Subpart AAdministrative Provisions
Sec.
40.1 Who does this regulation cover?
40.3 What do the terms used in this part
mean?
40.5 Who issues authoritative interpretations of this regulation?
40.7 How can you get an exemption from a
requirement in this regulation?
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Pt. 40
Subpart DCollection Sites, Forms, Equipment and Supplies Used in DOT Urine
Collections
40.41 Where does a urine collection for a
DOT drug test take place?
40.43 What steps must operators of collection sites take to protect the security
and integrity of urine collections?
40.45 What form is used to document a DOT
urine collection?
40.47 May employers use the CCF for nonFederal collections or non-Federal forms
for DOT collections?
40.49 What materials are used to collect
urine specimens?
40.51 What materials are used to send urine
specimens to the laboratory?
40.103 What are the requirements for submitting blind specimens to a laboratory?
40.105 What happens if the laboratory reports a result different from that expected for a blind specimen?
40.107 Who may inspect laboratories?
40.109 What documentation must the laboratory keep, and for how long?
40.111 When and how must a laboratory disclose statistical summaries and other information it maintains?
40.113 Where is other information concerning laboratories found in this regulation?
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Pt. 40
40.201 What problems always cause a drug
test to be cancelled and may result in a
requirement for another collection?
40.203 What problems cause a drug test to
be cancelled unless they are corrected?
40.205 How are drug test problems corrected?
40.207 What is the effect of a cancelled drug
test?
40.208 What problem requires corrective action but does not result in the cancellation of a test?
40.209 What procedural problems do not result in the cancellation of a test and do
not require correction?
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NIZATIONS
40.3
TION
FORM
Subpart AAdministrative
Provisions
40.1
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40.3
term includes an employers officers,
representatives, and management personnel. Service agents are not employers for the purposes of this part.
Error Correction Training. Training
provided to BATs, collectors, and
screening test technicians (STTs) following an error that resulted in the
cancellation of a drug or alcohol test.
Error correction training must be provided in person or by a means that provides real-time observation and interaction between the instructor and
trainee.
Evidential
Breath
Testing
Device
(EBT). A device approved by NHTSA
for the evidential testing of breath at
the .02 and .04 alcohol concentrations,
placed on NHTSAs Conforming Products List (CPL) for Evidential Breath
Measurement Devices and identified
on the CPL as conforming with the
model specifications available from
NHTSAs Traffic Safety Program.
HHS. The Department of Health and
Human Services or any designee of the
Secretary, Department of Health and
Human Services.
Initial drug test (also known as a
Screening drug test). The test used to
differentiate a negative specimen from
one that requires further testing for
drugs or drug metabolites.
Initial specimen validity test. The first
test used to determine if a urine specimen is adulterated, diluted, substituted, or invalid.
Invalid drug test. The result reported
by an HHS-certified laboratory in accordance with the criteria established
by HHS Mandatory Guidelines when a
positive, negative, adulterated, or substituted result cannot be established
for a specific drug or specimen validity
test.
Invalid result. The result reported by
a laboratory for a urine specimen that
contains an unidentified adulterant,
contains an unidentified interfering
substance, has an abnormal physical
characteristic, or has an endogenous
substance at an abnormal concentration that prevents the laboratory from
completing testing or obtaining a valid
drug test result.
Laboratory. Any U.S. laboratory certified by HHS under the National Laboratory Certification Program as meeting the minimum standards of Subpart
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40.11
terpretations of the provisions of this
part. These written DOT interpretations are the only official and authoritative interpretations concerning the
provisions of this part. DOT agencies
may incorporate ODAPC/OGC interpretations in written guidance they issue
concerning drug and alcohol testing
matters. Only Part 40 interpretations
issued after August 1, 2001, are considered valid.
40.7 How can you get an exemption
from a requirement in this regulation?
(a) If you want an exemption from
any provision of this part, you must request it in writing from the Office of
the Secretary of Transportation, under
the provisions and standards of 49 CFR
part 5. You must send requests for an
exemption to the following address: Department of Transportation, Deputy
Assistant General Counsel for Regulation and Enforcement, 1200 New Jersey
Avenue, SE., Washington, DC 20590.
(b) Under the standards of 49 CFR
part 5, we will grant the request only if
the request documents special or exceptional circumstances, not likely to
be generally applicable and not contemplated in connection with the rulemaking that established this part, that
make your compliance with a specific
provision of this part impracticable.
(c) If we grant you an exemption, you
must agree to take steps we specify to
comply with the intent of the provision
from which an exemption is granted.
(d) We will issue written responses to
all exemption requests.
Subpart BEmployer
Responsibilities
40.11 What are the general responsibilities of employers under this
regulation?
(a) As an employer, you are responsible for meeting all applicable requirements and procedures of this part.
(b) You are responsible for all actions
of your officials, representatives, and
agents (including service agents) in
carrying out the requirements of the
DOT agency regulations.
(c) All agreements and arrangements,
written or unwritten, between and
among employers and service agents
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40.13
DOT forms with references to DOT programs and agencies crossed out. You
also must always use the CCF and ATF
for all your DOT-mandated drug and
alcohol tests.
40.14 What collection information
must employers provide to collectors?
As an employer, or an employers
service agentfor example a C/TPA,
you must ensure the collector has the
following information when conducting
a urine specimen collection for you:
(a) Full name of the employee being
tested.
(b) Employee SSN or ID number.
(c) Laboratory name and address (can
be pre-printed on the CCF).
(d) Employer name, address, phone
number, and fax number (can be preprinted on the CCF at Step 1A).
(e) DER information required at
40.35 of this part.
(f) MRO name, address, phone number, and fax number (can be pre-printed
on the CCF at Step 1B).
(g) The DOT Agency which regulates
the employees safety-sensitive duties
(the checkmark can pre-printed in the
appropriate box on the CCF at Step 1
D).
(h) Test reason, as appropriate: Preemployment; Random; Reasonable Suspicion/Reasonable Cause; Post-Accident; Return-to-Duty; and Follow-up.
(i) Whether the test is to be observed
or not (see 40.67 of this part).
(j) (Optional) C/TPA name, address,
phone, and fax number (can be preprinted on the CCF).
[75 FR 59107, Sept. 27, 2010]
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40.19
[Reserved]
40.21
tive test for a drug or drug metabolite,
an adulterated test, or a substituted
test pertaining to the employee.
(1) For this purpose, the concerned
DOT agency is the one whose drug and
alcohol testing rules apply to the majority of the covered employees in your
organization. The concerned DOT agency uses its applicable procedures for
considering requests for waivers.
(2) Before taking action on a waiver
request, the concerned DOT agency coordinates with other DOT agencies
that regulate the employers other covered employees.
(3) The concerned DOT agency provides a written response to each employer that petitions for a waiver, setting forth the reasons for the agencys
decision on the waiver request.
(c) Your request for a waiver must include, as a minimum, the following elements:
(1) Information about your organization:
(i) Your determination that standing
employees down is necessary for safety
in your organization and a statement
of your basis for it, including any data
on safety problems or incidents that
could have been prevented if a standdown procedure had been in place;
(ii) Data showing the number of confirmed laboratory positive, adulterated, and substituted test results for
your employees over the two calendar
years preceding your waiver request,
and the number and percentage of
those test results that were verified
positive, adulterated, or substituted by
the MRO;
(iii) Information about the work situation of the employees subject to
stand-down, including a description of
the size and organization of the unit(s)
in which the employees work, the process through which employees will be
informed of the stand-down, whether
there is an in-house MRO, and whether
your organization has a medical disqualification or stand-down policy for
employees in situations other than
drug and alcohol testing; and
(iv) A statement of which DOT agencies regulate your employees.
(2) Your proposed written company
policy concerning stand-down, which
must include the following elements:
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40.23
(i) Your assurance that you will distribute copies of your written policy to
all employees that it covers;
(ii) Your means of ensuring that no
information about the confirmed positive, adulterated, or substituted test
result or the reason for the employees
temporary removal from performance
of safety-sensitive functions becomes
available, directly or indirectly, to
anyone in your organization (or subsequently to another employer) other
than the employee, the MRO and the
DER;
(iii) Your means of ensuring that all
covered employees in a particular job
category in your organization are
treated the same way with respect to
stand-down;
(iv) Your means of ensuring that a
covered employee will be subject to
stand-down only with respect to the actual performance of safety-sensitive
duties;
(v) Your means of ensuring that you
will not take any action adversely affecting the employees pay and benefits
pending the completion of the MROs
verification process. This includes continuing to pay the employee during the
period of the stand-down in the same
way you would have paid him or her
had he or she not been stood down;
(vi) Your means of ensuring that the
verification process will commence no
later than the time an employee is
temporarily removed from the performance of safety-sensitive functions
and that the period of stand-down for
any employee will not exceed five days,
unless you are informed in writing by
the MRO that a longer period is needed
to complete the verification process;
and
(vii) Your means of ensuring that, in
the event that the MRO verifies the
test negative or cancels it
(A) You return the employee immediately to the performance of safetysensitive duties;
(B) The employee suffers no adverse
personnel or financial consequences as
a result; and
(C) You maintain no individually
identifiable record that the employee
had a confirmed laboratory positive,
adulterated, or substituted test result
(i.e., you maintain a record of the test
only as a negative or cancelled test).
(d) The Administrator of the concerned DOT agency, or his or her designee, may grant a waiver request only
if he or she determines that, in the
context of your organization, there is a
high probability that the procedures
you propose will effectively enhance
safety and protect the interests of employees in fairness and confidentiality.
(1) The Administrator, or his or her
designee, may impose any conditions
he or she deems appropriate on the
grant of a waiver.
(2) The Administrator, or his or her
designee, may immediately suspend or
revoke the waiver if he or she determines that you have failed to protect
effectively the interests of employees
in fairness and confidentiality, that
you have failed to comply with the requirements of this section, or that you
have failed to comply with any other
conditions the DOT agency has attached to the waiver.
(e) You must not stand employees
down in the absence of a waiver, or inconsistent with the terms of your waiver. If you do, you are in violation of
this part and DOT agency drug testing
regulations, and you are subject to enforcement action by the DOT agency
just as you are for other violations of
this part and DOT agency rules.
40.23 What actions do employers take
after receiving verified test results?
(a) As an employer who receives a
verified positive drug test result, you
must immediately remove the employee involved from performing safety-sensitive functions. You must take
this action upon receiving the initial
report of the verified positive test result. Do not wait to receive the written
report or the result of a split specimen
test.
(b) As an employer who receives a
verified adulterated or substituted
drug test result, you must consider this
a refusal to test and immediately remove the employee involved from performing safety-sensitive functions. You
must take this action on receiving the
initial report of the verified adulterated or substituted test result. Do not
wait to receive the written report or
the result of a split specimen test.
(c) As an employer who receives an
alcohol test result of 0.04 or higher,
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40.25
tests to be reported to the Federal Air
Surgeon).
(i) As an employer, you must not
alter a drug or alcohol test result
transmitted to you by an MRO, BAT,
or C/TPA.
[65 FR 79526, Dec. 19, 2000, as amended at 71
FR 49384, Aug. 23, 2006; 73 FR 35970, June 25,
2008; 75 FR 59107, Sept. 27, 2010]
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40.33
(b) A collector must meet training
requirements of 40.33.
(c) As the immediate supervisor of an
employee being tested, you may not
act as the collector when that employee is tested, unless no other collector is available and you are permitted to do so under DOT agency drug
and alcohol regulations.
(d) You must not act as the collector
for the employee being tested if you
work for a HHS-certified laboratory
(e.g., as a technician or accessioner)
and could link the employee with a
urine specimen, drug testing result, or
laboratory report.
40.33 What training requirements
must a collector meet?
To be permitted to act as a collector
in the DOT drug testing program, you
must meet each of the requirements of
this section:
(a) Basic information. You must be
knowledgeable about this part, the current DOT Urine Specimen Collection
Procedures Guidelines, and DOT agency regulations applicable to the employers for whom you perform collections, and you must keep current on
any changes to these materials. The
DOT Urine Specimen Collection Procedures Guidelines document is available
from ODAPC (Department of Transportation, 1200 New Jersey Avenue, SE.,
Washington DC, 20590, 2023663784, or
on the ODAPC web site (http://
www.dot.gov/ost/dapc).
(b) Qualification training. You must
receive qualification training meeting
the requirements of this paragraph.
Qualification training must provide instruction on the following subjects:
(1) All steps necessary to complete a
collection correctly and the proper
completion and transmission of the
CCF;
(2) Problem collections (e.g., situations like shy bladder and attempts
to tamper with a specimen);
(3) Fatal flaws, correctable flaws, and
how to correct problems in collections;
and
(4) The collectors responsibility for
maintaining the integrity of the collection process, ensuring the privacy of
employees being tested, ensuring the
security of the specimen, and avoiding
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Subpart
DCollection
Sites,
Forms, Equipment and Supplies Used in DOT Urine Collections
40.43
(1) No one but the employee may be
present in the room during the collection, except for the observer in the
event of a directly observed collection.
(2) You must have a source of water
for washing hands, that, if practicable,
should be external to the closed room
where urination occurs. If an external
source is not available, you may meet
this requirement by securing all
sources of water and other substances
that could be used for adulteration and
substitution (e.g., water faucets, soap
dispensers)
and
providing
moist
towelettes outside the closed room.
(f) The second type of facility for urination that a collection site may include is a multistall restroom.
(1) Such a site must provide substantial visual privacy (e.g., a toilet stall
with a partial-length door) and meet
all other applicable requirements of
this section.
(2) If you use a multi-stall restroom,
you must either
(i) Secure all sources of water and
other substances that could be used for
adulteration and substitution (e.g.,
water faucets, soap dispensers) and
place bluing agent in all toilets or secure the toilets to prevent access; or
(ii) Conduct all collections in the facility as monitored collections (see
40.69 for procedures). This is the only
circumstance in which you may conduct a monitored collection.
(3) No one but the employee may be
present in the multistall restroom during the collection, except for the monitor in the event of a monitored collection or the observer in the event of a
directly observed collection.
(g) A collection site may be in a medical facility, a mobile facility (e.g., a
van), a dedicated collection facility, or
any other location meeting the requirements of this section.
40.43 What steps must operators of
collection sites take to protect the
security and integrity of urine collections?
(a) Collectors and operators of collection sites must take the steps listed in
this section to prevent unauthorized
access that could compromise the integrity of collections.
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40.51
the CCF approved by ODAPC. You may
use such a non-English language form
only in a situation where both the employee and collector understand and
can use the form in that language.
[65 FR 79526, Dec. 19, 2000, as amended at 66
FR 41950, Aug. 9, 2001; 75 FR 59107, Sept. 27,
2010; 76 FR 59577, Sept. 27, 2011]
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40.63
wash his or her hands again until after
delivering the specimen to you. You
must not give the employee any further access to water or other materials
that could be used to adulterate or dilute a specimen.
(c) Select, or allow the employee to
select, an individually wrapped or
sealed collection container from collection kit materials. Either you or the
employee, with both of you present,
must unwrap or break the seal of the
collection container. You must not unwrap or break the seal on any specimen
bottle at this time. You must not allow
the employee to take anything from
the collection kit into the room used
for urination except the collection container.
(d) Direct the employee to go into
the room used for urination, provide a
specimen of at least 45 mL, not flush
the toilet, and return to you with the
specimen as soon as the employee has
completed the void.
(1) Except in the case of an observed
or a monitored collection (see 40.67
and 40.69 ), neither you nor anyone else
may go into the room with the employee.
(2) As the collector, you may set a
reasonable time limit for voiding.
(e) You must pay careful attention to
the employee during the entire collection process to note any conduct that
clearly indicates an attempt to tamper
with a specimen (e.g., substitute urine
in plain view or an attempt to bring
into the collection site an adulterant
or urine substitute). If you detect such
conduct, you must require that a collection take place immediately under
direct observation (see 40.67) and complete Step 2 by noting the conduct in
the Remarks line of the CCF and the
fact that the collection was observed
by checking the Observed box. You
must also, as soon as possible, inform
the DER and collection site supervisor
that a collection took place under direct observation and the reason for
doing so.
[65 FR 79526, Dec. 19, 2000, as amended at 75
FR 59107, Sept. 27, 2010]
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40.67
enter on the Remarks line of the
CCF (Step 2) for each specimen a notation to this effect (e.g., collection 1 of
2, or 2 of 2) and the specimen ID number of the other specimen.
(g) As the collector, you must ensure
that the observer is the same gender as
the employee. You must never permit
an opposite gender person to act as the
observer. The observer can be a different person from the collector and
need not be a qualified collector.
(h) As the collector, if someone else
is to observe the collection (e.g., in
order to ensure a same gender observer), you must verbally instruct
that person to follow procedures at
paragraphs (i) and (j) of this section. If
you, the collector, are the observer,
you too must follow these procedures.
(i) As the observer, you must request
the employee to raise his or her shirt,
blouse, or dress/skirt, as appropriate,
above the waist; and lower clothing
and underpants to show you, by turning around, that they do not have a
prosthetic device. After you have determined that the employee does not
have such a device, you may permit the
employee to return clothing to its
proper position for observed urination.
(j) As the observer, you must watch
the employee urinate into the collection container. Specifically, you are to
watch the urine go from the employees
body into the collection container.
(k) As the observer but not the collector, you must not take the collection container from the employee, but
you must observe the specimen as the
employee takes it to the collector.
(l) As the collector, when someone
else has acted as the observer, you
must include the observers name in
the Remarks line of the CCF (Step
2).
(m) As the employee, if you decline
to allow a directly observed collection
required or permitted under this section to occur, this is a refusal to test.
(n) As the collector, when you learn
that a directly observed collection
should have been collected but was not,
you must inform the employer that it
must direct the employee to have an
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40.81
(iii) If a laboratory courier hand-delivers the specimens from the collection site to the laboratory, prepare the
sealed plastic bag for shipment as directed by the courier service.
(9) Send Copy 2 of the CCF to the
MRO and Copy 4 to the DER. You must
fax or otherwise transmit these copies
to the MRO and DER within 24 hours or
during the next business day. Keep
Copy 3 for at least 30 days, unless otherwise specified by applicable DOT
agency regulations.
(b) As a collector or collection site,
you must ensure that each specimen
you collect is shipped to a laboratory
as quickly as possible, but in any case
within 24 hours or during the next business day.
[65 FR 79526, Dec. 19, 2000, as amended at 71
FR 49384, Aug. 23, 2006]
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40.87
oratory internal chain of custody documents, as appropriate, for any fatal or
correctable flaw.
[65 FR 79526, Dec. 19, 2000, as amended at 66
FR 41951, Aug. 9, 2001; 71 FR 49384, Aug. 23,
2006; 73 FR 35970, June 25, 2008; 75 FR 59107,
Sept. 27, 2010]
50 ng/mL ................................
150 ng/mL ..............................
THCA 1 ...................................
Benzoylecgonine ....................
15 ng/mL.
100 ng/mL.
6Acetylmorphine ....................
Phencyclidine ...........................
Amphetamines3
AMP/MAMP 4 ....................
10 ng/mL ................................
25 ng/mL ................................
Codeine ..................................
Morphine ................................
6Acetylmorphine ..................
Phencyclidine .........................
2000 ng/mL.
2000 ng/mL.
10 ng/mL.
25 ng/mL.
MDMA 6
Amphetamine .........................
Methamphetamine5 ................
MDMA ....................................
MDA7 ......................................
MDEA8 ...................................
250
250
250
250
250
....................................
ng/mL.
ng/mL.
ng/mL.
ng/mL.
ng/mL
1 Delta-9-tetrahydrocannabinol-9-carboxylic
acid (THCA).
is the target analyte for codeine/morphine testing.
a single initial test kit or multiple initial test kits may be used provided the single test kit detects each target analyte
independently at the specified cutoff.
4 Methamphetamine is the target analyte for amphetamine/methamphetamine testing.
5 To be reported positive for methamphetamine, a specimen must also contain amphetamine at a concentration equal to or
greater than 100 ng/mL.
6 Methylenedioxymethamphetamine (MDMA).
7 Methylenedioxyamphetamine (MDA).
8 Methylenedioxyethylamphetamine (MDEA).
2 Morphine
3 Either
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report
40.97
(i) Positive, with drug(s)/metabolite(s) noted, with numerical values for
the drug(s) or drug metabolite(s).
(ii) Positive-dilute, with drug(s)/metabolite(s) noted, with numerical values for the drug(s) or drug metabolite(s) and with numerical values for
creatinine and specific gravity;
(iii) Adulterated, with adulterant(s)
noted, with confirmatory test values
(when applicable), and with remark(s);
(iv) Substituted, with confirmatory
test values for creatinine and specific
gravity; or
(v) Invalid result, with remark(s).
Laboratories will report actual values
for pH results.
(3) Category 3: Rejected for Testing.
As a laboratory, when you reject a
specimen for testing, you must report
the result as being Rejected for Testing, with remark(s).
(b) As a laboratory, you must report
laboratory results directly, and only,
to the MRO at his or her place of business. You must not report results to or
through the DER or a service agent
(e.g., C/TPA).
(1) Negative results: You must fax,
courier, mail, or electronically transmit a legible image or copy of the
fully-completed Copy 1 of the CCF
which has been signed by the certifying
scientist, or you may provide the laboratory results report electronically
(i.e., computer data file).
(i) If you elect to provide the laboratory results report, you must include
the following elements, as a minimum,
in the report format:
(A) Laboratory name and address;
(B) Employers name (you may include I.D. or account number);
(C) Medical review officers name;
(D) Specimen I.D. number;
(E) Donors SSN or employee I.D.
number, if provided;
(F) Reason for test, if provided;
(G) Collectors name and telephone
number;
(H) Date of the collection;
(I) Date received at the laboratory;
(J) Date certifying scientist released
the results;
(K) Certifying scientists name;
(L) Results (e.g., positive, adulterated) as listed in paragraph (a) of this
section; and
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40.99
(M) Remarks section, with an explanation of any situation in which a correctable flaw has been corrected.
(ii) You may release the laboratory
results report only after review and approval by the certifying scientist. It
must reflect the same test result information as contained on the CCF signed
by the certifying scientist. The information contained in the laboratory results report may not contain information that does not appear on the CCF.
(iii) The results report may be transmitted through any means that ensures accuracy and confidentiality.
You, as the laboratory, together with
the MRO, must ensure that the information is adequately protected from
unauthorized access or release, both
during transmission and in storage.
(2) Non-negative and Rejected for
Testing results: You must fax, courier,
mail, or electronically transmit a legible image or copy of the fully-completed Copy 1 of the CCF that has been
signed by the certifying scientist. In
addition, you may provide the electronic laboratory results report following the format and procedures set
forth in paragraphs (b)(1)(i) and (ii) of
this section.
(c) In transmitting laboratory results
to the MRO, you, as the laboratory, together with the MRO, must ensure that
the information is adequately protected from unauthorized access or release, both during transmission and in
storage. If the results are provided by
fax, the fax connection must have a
fixed telephone number accessible only
to authorized individuals.
(d) You must transmit test results to
the MRO in a timely manner, preferably the same day that review by the
certifying scientist is completed.
(e)(1) You must provide quantitative
values for confirmed positive drug test
results to the MRO.
(2) You must provide the numerical
values that support the adulterated
(when applicable) or substituted result,
without a request from the MRO.
(3) You must also provide to the MRO
numerical values for creatinine and
specific gravity for the negative-dilute
test result, without a request from the
MRO.
(f) You must provide quantitative
values for confirmed opiate results for
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40.103
you would send 25 blind specimens to Lab X
in Year 1. To meet the even distribution requirement, you would send 6 in each of three
quarters and 7 in the other.
Example 2 to paragraph (b). You send 2000
specimens to Lab X and 1000 specimens to
Lab Y in Year 1. In this case, you would send
20 blind specimens to Lab X and 10 to Lab Y
in Year 1. The even distribution requirement
would apply in a similar way to that described in Example 1.
Example 3 to paragraph (b). Same as Example 2, except that you also send 20 specimens
to Lab Z. In this case, you would send blind
specimens to Labs X and Y as in Example 2.
You would not have to send any blind specimens to Lab Z, because you sent fewer than
100 specimens to Lab Z.
Example 4 to paragraph (b). You are a C/TPA
sending 2000 specimens to Lab X in Year 1.
These 2000 specimens represent 200 small employers who have an average of 10 covered
employees each. In this case younot the individual employerssend 20 blind specimens
to Lab X in Year 1, again ensuring even distribution. The individual employers you represent are not required to provide any blind
specimens on their own.
Example 5 to paragraph (b). You are a large
C/TPA that sends 40,000 specimens to Lab Y
in Year 1. One percent of that figure is 400.
However, the 50 blind specimen per quarter
cap means that you need send only 50
blind specimens per quarter, rather than the
100 per quarter you would have to send to
meet the one percent rate. Your annual total
would be 200, rather than 400, blind specimens.
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40.105
40.107
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40.121
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40.123
40.123 What are the MROs responsibilities in the DOT drug testing
program?
As an MRO, you have the following
basic responsibilities:
(a) Acting as an independent and impartial gatekeeper and advocate for
the accuracy and integrity of the drug
testing process.
(b) Providing a quality assurance review of the drug testing process for the
specimens under your purview. This includes, but is not limited to:
(1) Ensuring the review of the CCF on
all specimen collections for the purposes of determining whether there is a
problem that may cause a test to be
cancelled (see 40.19940.203 ). As an
MRO, you are not required to review
laboratory internal chain of custody
documentation. No one is permitted to
cancel a test because you have not reviewed this documentation;
(2) Providing feedback to employers,
collection sites and laboratories regarding performance issues where necessary; and
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an
40.127
tory, prior to verifying the result and
releasing it to the DER:
(a) Review Copy 2 of the CCF to determine if there are any fatal or correctable errors that may require you to
initiate corrective action or to cancel
the test (see 40.199 and 40.203).
(b) Review the negative laboratory
test result and ensure that it is consistent with the information contained
on the CCF.
(c) Before you report a negative test
result, you must have in your possession the following documents:
(1) Copy 2 of the CCF, a legible copy
of it, or any other CCF copy containing
the employees signature; and
(2) A legible copy (fax, photocopy,
image) of Copy 1 of the CCF or the
electronic laboratory results report
that conveys the negative laboratory
test result.
(d) If the copy of the documentation
provided to you by the collector or laboratory appears unclear, you must request that the collector or laboratory
send you a legible copy.
(e) On Copy 2 of the CCF, place a
check mark in the Negative box
(Step 6), provide your name, and sign,
initial, or stamp and date the
verification statement.
(f) Report the result in a confidential
manner (see 40.16340.167).
(g) Staff under your direct, personal
supervision may perform the administrative functions of this section for
you, but only you can cancel a test. If
you cancel a laboratory-confirmed negative result, check the Test Cancelled box (Step 6) on Copy 2 of the
CCF, make appropriate annotation in
the Remarks line, provide your
name, and sign, initial or stamp and
date the verification statement.
(1) On specimen results that are reviewed by your staff, you are responsible for assuring the quality of their
work.
(2) You are required to personally review at least 5 percent of all CCFs reviewed by your staff on a quarterly
basis, including all results that required a corrective action. However,
you need not review more than 500 negative results in any quarter.
(3) Your review must, as a minimum,
include the CCF, negative laboratory
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40.129
test result, any accompanying corrective documents, and the report sent to
the employer. You must correct any errors that you discover. You must take
action as necessary to ensure compliance by your staff with this part and
document your corrective action. You
must attest to the quality assurance
review by initialing the CCFs that you
review.
(4) You must make these CCFs easily
identifiable and retrievable by you for
review by DOT agencies.
(i) Negative; or
(ii) Cancelled; or
(iii) Positive, and/or refusal to test
because of adulteration or substitution.
(b) Before you report a verified negative, positive, test cancelled, refusal to
test because of adulteration or substitution, you must have in your possession the following documents:
(1) Copy 2 of the CCF, a legible copy
of it, or any other CCF copy containing
the employees signature; and
(2) A legible copy (fax, photocopy,
image) of Copy 1 of the CCF, containing the certifying scientists signature.
(c) With respect to verified positive
test results, place a checkmark in the
Positive box in Step 6 on Copy 2 of
the CCF, indicate the drug(s)/metabolite(s) verified positive, and sign and
date the verification statement.
(d) If you cancel a laboratory confirmed positive, adulterated, substituted, or invalid drug test report,
check the test cancelled box (Step 6)
on Copy 2 of the CCF, make appropriate annotation in the Remarks
line, sign, provide your name, and date
the verification statement.
(e) Report the result in a confidential
manner (see 40.16340.167 ).
(f) With respect to adulteration or
substitution test results, check the
refusal to test because: box (Step 6)
on Copy 2 of the CCF, check the
Adulterated or Substituted box,
as appropriate, make appropriate annotation in the Remarks line, sign and
date the verification statement.
(g) As the MRO, your actions concerning reporting confirmed positive,
adulterated, or substituted results to
the employer before you have completed the verification process are also
governed by the stand-down provisions
of 40.21 .
(1) If an employer has a stand-down
policy that meets the requirements of
40.21, you may report to the DER that
you have received an employees laboratory confirmed positive, adulterated, or substituted test result, consistent with the terms of the waiver
the employer received. You must not
provide any further details about the
test result (e.g., the name of the drug
involved).
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40.131 How does the MRO or DER notify an employee of the verification
process after receiving laboratory
confirmed non-negative drug test
results?
(a) When, as the MRO, you receive a
confirmed positive, adulterated, substituted, or invalid test result from the
laboratory, you must contact the employee directly (i.e., actually talk to
the employee), on a confidential basis,
to determine whether the employee
wants to discuss the test result. In
making this contact, you must explain
to the employee that, if he or she declines to discuss the result, you will
verify the test as positive or as a refusal to test because of adulteration or
substitution, as applicable.
(b) As the MRO, staff under your personal supervision may conduct this initial contact for you.
(1) This staff contact must be limited
to scheduling the discussion between
you and the employee and explaining
the consequences of the employees declining to speak with you (i.e., that the
MRO will verify the test without input
from the employee). If the employee
declines to speak with you, the staff
person must document the employees
decision, including the date and time.
(2) A staff person must not gather
any medical information or information concerning possible explanations
for the test result.
(3) A staff person may advise an employee to have medical information
(e.g., prescriptions, information forming the basis of a legitimate medical
explanation for a confirmed positive
40.131
test result) ready to present at the
interview with the MRO.
(4) Since you are required to speak
personally with the employee, face-toface or on the phone, your staff must
not inquire if the employee wishes to
speak with you.
(c) As the MRO, you or your staff
must make reasonable efforts to reach
the employee at the day and evening
telephone numbers listed on the CCF.
Reasonable efforts include, as a minimum, three attempts, spaced reasonably over a 24-hour period, to reach the
employee at the day and evening telephone numbers listed on the CCF. If
you or your staff cannot reach the employee directly after making these efforts, you or your staff must take the
following steps:
(1) Document the efforts you made to
contact the employee, including dates
and times. If both phone numbers are
incorrect (e.g., disconnected, wrong
number), you may take the actions
listed in paragraph (c)(2) of this section
without waiting the full 24-hour period.
(2) Contact the DER, instructing the
DER to contact the employee.
(i) You must simply direct the DER
to inform the employee to contact you.
(ii) You must not inform the DER
that the employee has a confirmed
positive, adulterated, substituted, or
invalid test result.
(iii) You must document the dates
and times of your attempts to contact
the DER, and you must document the
name of the DER you contacted and
the date and time of the contact.
(d) As the DER, you must attempt to
contact the employee immediately,
using procedures that protect, as much
as possible, the confidentiality of the
MROs request that the employee contact the MRO. If you successfully contact the employee (i.e., actually talk
to the employee), you must document
the date and time of the contact, and
inform the MRO. You must inform the
employee that he or she should contact
the MRO immediately. You must also
inform the employee of the consequences of failing to contact the
MRO within the next 72 hours (see
40.133(a)(2)).
(1) As the DER, you must not inform
anyone else working for the employer
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40.133
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40.137
Substances Act, you will allow 5 days
for the employee to have the prescribing physician contact you to determine if the medication can be
changed to one that does not make the
employee medically unqualified or does
not pose a significant safety risk. If, as
an MRO, you receive such information
from the prescribing physician, you
must transmit this information to any
third party to whom you previously
provided information about the safety
risks of the employees other medication.
[65 FR 79526, Dec. 19, 2000, as amended at 66
FR 41952, Aug. 9, 2001]
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40.139
ethical judgment and discretion to determine whether there is clinical evidence of unauthorized use of opiates.
Examples of information that you may
consider in making this judgment include, but are not limited to, the following:
(i) Recent needle tracks;
(ii) Behavioral and psychological
signs of acute opiate intoxication or
withdrawal;
(iii) Clinical history of unauthorized
use recent enough to have produced the
laboratory test result;
(iv) Use of a medication from a foreign country. See 40.137(e) for guidance on how to make this determination.
(2) In order to establish the clinical
evidence referenced in paragraphs
(b)(1)(i) and (ii) of this section, personal observation of the employee is
essential.
(i) Therefore, you, as the MRO, must
conduct, or cause another physician to
conduct, a face-to-face examination of
the employee.
(ii) No face-to-face examination is
needed in establishing the clinical evidence referenced in paragraph (b)(1)(iii)
or (iv) of this section.
(3) To be the basis of a verified positive result for opiates, the clinical evidence you find must concern a drug
that the laboratory found in the specimen. (For example, if the test confirmed the presence of codeine, and the
employee admits to unauthorized use
of hydrocodone, you do not have
grounds for verifying the test positive.
The admission must be for the substance that was found).
(4) As the MRO, you have the burden
of establishing that there is clinical
evidence of unauthorized use of opiates
referenced in paragraph (b) of this section. If you cannot make this determination (e.g., there is not sufficient
clinical evidence or history), you must
verify the test as negative. The employee does not need to show you that
a legitimate medical explanation exists
if no clinical evidence is established.
[75 FR 49862, Aug. 16, 2010]
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40.141 How does the MRO obtain information for the verification decision?
As the MRO, you must do the following as you make the determinations
needed for a verification decision:
(a) You must conduct a medical
interview. You must review the employees medical history and any other
relevant biomedical factors presented
to you by the employee. You may direct the employee to undergo further
medical evaluation by you or another
physician.
(b) If the employee asserts that the
presence of a drug or drug metabolite
in his or her specimen results from
taking prescription medication, you
must review and take all reasonable
40.145
and necessary steps to verify the authenticity of all medical records the
employee provides. You may contact
the employees physician or other relevant medical personnel for further information.
40.143
[Reserved]
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40.145
the MRO, you have discretion to extend the time available to the employee for this purpose for up to five
days before verifying the specimen, if
you determine that there is a reasonable basis to believe that the employee
will be able to produce relevant evidence supporting a legitimate medical
explanation within that time.
(f) As the MRO or the employer, you
are not responsible for arranging, conducting, or paying for any studies, examinations or analyses to determine
whether a legitimate medical explanation exists.
(g) As the MRO, you must exercise
your best professional judgment in deciding whether the employee has established a legitimate medical explanation.
(1) If you determine that the employees explanation does not present a reasonable basis for concluding that there
may be a legitimate medical explanation, you must report the test to the
DER as a verified refusal to test because of adulteration or substitution,
as applicable.
(2) If you believe that the employees
explanation may present a reasonable
basis for concluding that there is a legitimate medical explanation, you
must direct the employee to obtain,
within the five-day period set forth in
paragraph (e)(3) of this section, a further medical evaluation. This evaluation must be performed by a licensed
physician (the referral physician),
acceptable to you, with expertise in the
medical issues raised by the employees
explanation. (The MRO may perform
this evaluation if the MRO has appropriate expertise.)
(i) As the MRO or employer, you are
not responsible for finding or paying a
referral physician. However, on request
of the employee, you must provide reasonable assistance to the employees
efforts to find such a physician. The
final choice of the referral physician is
the employees, as long as the physician is acceptable to you.
(ii) As the MRO, you must consult
with the referral physician, providing
guidance to him or her concerning his
or her responsibilities under this section. As part of this consultation, you
must provide the following information
to the referral physician:
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40.147
[Reserved]
40.149
tive) the employees primary or split
specimen. For example, suppose the
laboratory originally reported a positive test result for Employee X and a
negative result for Employee Y. You
verified the test results as reported to
you. Then the laboratory notifies you
that it mixed up the two test results,
and X was really negative and Y was
really positive. You would change Xs
test result from positive to negative
and contact Y to conduct a verification
interview.
(3) If, within 60 days of the original
verification decision
(i) You receive information that
could not reasonably have been provided to you at the time of the decision
demonstrating that there is a legitimate medical explanation for the presence of drug(s)/metabolite(s) in the employees specimen; or
(ii) You receive credible new or additional evidence that a legitimate medical explanation for an adulterated or
substituted result exists.
Example to paragraph (a)(3): If the employees physician provides you a valid prescription that he or she failed to find at the time
of the original verification, you may change
the test result from positive to negative if
you conclude that the prescription provides
a legitimate medical explanation for the
drug(s)/ metabolite(s) in the employees specimen.
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40.151
For example, an arbitrator is not permitted to overturn the medical judgment of the MRO that the employee
failed to present a legitimate medical
explanation for a positive, adulterated,
or substituted test result of his or her
specimen.
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40.153 How does the MRO notify employees of their right to a test of the
split specimen?
(a) As the MRO, when you have
verified a drug test as positive for a
drug or drug metabolite, or as a refusal
to test because of adulteration or substitution, you must notify the employee of his or her right to have the
split specimen tested. You must also
notify the employee of the procedures
for requesting a test of the split specimen.
(b) You must inform the employee
that he or she has 72 hours from the
time you provide this notification to
him or her to request a test of the split
specimen.
(c) You must tell the employee how
to contact you to make this request.
You must provide telephone numbers
or other information that will allow
the employee to make this request. As
the MRO, you must have the ability to
receive the employees calls at all
times during the 72 hour period (e.g., by
use of an answering machine with a
time stamp feature when there is no
one in your office to answer the phone).
(d) You must tell the employee that
if he or she makes this request within
72 hours, the employer must ensure
that the test takes place, and that the
employee is not required to pay for the
test from his or her own funds before
the test takes place. You must also tell
the employee that the employer may
seek reimbursement for the cost of the
test (see 40.173 ).
(e) You must tell the employee that
additional tests of the specimen e.g.,
DNA tests) are not authorized.
40.155 What does the MRO do when a
negative or positive test result is
also dilute?
(a) When the laboratory reports that
a specimen is dilute, you must, as the
MRO, report to the DER that the specimen, in addition to being negative or
positive, is dilute.
(b) You must check the dilute box
(Step 6) on Copy 2 of the CCF.
(c) When you report a dilute specimen to the DER, you must explain to
the DER the employers obligations
and choices under 40.197, to include
the requirement for an immediate
recollection under direct observation if
40.159
the creatinine concentration of a negative-dilute specimen was greater than
or equal to 2mg/dL but less than or
equal to 5mg/dL.
(d) If the employees recollection
under direct observation, in paragraph
(c) of this section, results in another
negative-dilute, as the MRO, you must:
(1) Review the CCF to ensure that
there is documentation that the recollection was directly observed.
(2) If the CCF documentation shows
that the recollection was directly observed as required, report this result to
the DER as a negative-dilute result.
(3) If CCF documentation indicates
that the recollection was not directly
observed as required, do not report a
result but again explain to the DER
that there must be an immediate recollection under direct observation.
[65 FR 79526, Dec. 19, 2000, as amended at 66
FR 41952, Aug. 9, 2001; 68 FR 31626, May 28,
2003; 69 FR 64867, Nov. 9, 2004; 73 FR 35971,
June 25, 2008]
40.157
[Reserved]
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40.159
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40.160
ees physician to gather information
you need to reach this determination.
(b) If you do not personally conduct
the medical evaluation, as the MRO,
you must ensure that one is conducted
by a licensed physician acceptable to
you.
(c) For purposes of this section, the
MRO or the physician conducting the
evaluation may conduct an alternative
test (e.g., blood) as part of the medically appropriate procedures in determining clinical evidence of drug use.
(d) If the medical evaluation reveals
no clinical evidence of drug use, as the
MRO, you must report this to the employer as a negative test result with
written notations regarding the medical examination. The report must also
state why the medical examination was
required (i.e., either the basis for the
determination that a permanent or
long-term medical condition exists or
because the recollection under direct
observation resulted in another invalid
result for the same reason, as appropriate) and for the determination that
no signs and symptoms of drug use
exist.
(1) Check Negative (Step 6) on the
CCF.
(2) Sign and date the CCF.
(e) If the medical evaluation reveals
clinical evidence of drug use, as the
MRO, you must report the result to the
employer as a cancelled test with written notations regarding the results of
the medical examination. The report
must also state why the medical examination was required (i.e., either the
basis for the determination that a permanent or long-term medical condition
exists or because the recollection under
direct observation resulted in another
invalid result for the same reason, as
appropriate) and state the reason for
the determination that signs and
symptoms of drug use exist. Because
this is a cancelled test, it does not
serve the purpose of an actual negative
test result (i.e., the employer is not authorized to allow the employee to begin
or resume performing safety-sensitive
functions, because a negative test result is needed for that purpose).
[73 FR 35972, June 25, 2008]
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40.161
40.162 What must MROs do with multiple verified results for the same
testing event?
(a) As the MRO, it is your responsibility to report all drug test results to
the employer.
(b) You may use a signed or stamped
and dated legible photocopy of Copy 2
of the CCF to report test results.
(c) If you do not report test results
using Copy 2 of the CCF for this purpose, you must provide a written report (e.g., a letter) for each test result.
This report must, as a minimum, include the following information:
(1) Full name, as indicated on the
CCF, of the employee tested;
(2) Specimen ID number from the
CCF and the donor SSN or employee ID
number;
(3) Reason for the test, if indicated
on the CCF (e.g., random, post-accident);
(4) Date of the collection;
(5) Date you received Copy 2 of the
CCF;
(6) Result of the test (i.e., positive,
negative, dilute, refusal to test, test
cancelled) and the date the result was
verified by the MRO;
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40.167
40.165 To whom does the MRO transmit reports of drug test results?
(a) As the MRO, you must report all
drug test results to the DER, except in
the circumstances provided for in
40.345 .
(b) If the employer elects to receive
reports of results through a C/TPA,
acting as an intermediary as provided
in 40.345 , you must report the results
through the designated C/TPA.
40.167 How are MRO reports of drug
results transmitted to the employer?
As the MRO or C/TPA who transmits
drug test results to the employer, you
must comply with the following requirements:
(a) You must report the results in a
confidential manner.
(b) You must transmit to the DER on
the same day the MRO verifies the result or the next business day all
verified positive test results, results requiring an immediate collection under
direct observation, adulterated or substituted specimen results, and other refusals to test.
(1) Direct telephone contact with the
DER is the preferred method of immediate reporting. Follow up your phone
call with appropriate documentation
(see 40.163).
(2) You are responsible for identifying yourself to the DER, and the
DER must have a means to confirm
your identification.
(3) The MROs report that you transmit to the employer must contain all
of the information required by 40.163 .
(c) You must transmit the MROs report(s) of verified tests to the DER so
that the DER receives it within two
days of verification by the MRO.
(1) You must fax, courier, mail, or
electronically transmit a legible image
or copy of either the signed or stamped
and dated Copy 2 or the written report
(see 40.163(b) and (c)).
(2) Negative results reported electronically (i.e., computer data file) do
not require an image of Copy 2 or the
written report.
(d) In transmitting test results, you
or the C/TPA and the employer must
ensure the security of the transmission
and limit access to any transmission,
storage, or retrieval systems.
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40.169
that serious injury, illness, lack of actual notice of the verified test result,
inability to contact the MRO (e.g.,
there was no one in the MROs office
and the answering machine was not
working), or other circumstances unavoidably prevented you from making
a timely request.
(2) As the MRO, if you conclude from
the employees information that there
was a legitimate reason for the employees failure to contact you within
72 hours, you must direct that the test
of the split specimen take place, just as
you would when there is a timely request.
(c) When the employee makes a timely request for a test of the split specimen under paragraphs (a) and (b) of
this section, you must, as the MRO,
immediately provide written notice to
the laboratory that tested the primary
specimen, directing the laboratory to
forward the split specimen to a second
HHS-certified laboratory. You must
also document the date and time of the
employees request.
[65 FR 79526, Dec. 19, 2000, as amended at 73
FR 35972, June 25, 2008]
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40.179
40.175 What steps does the first laboratory take with a split specimen?
(a) As the laboratory at which the
primary and split specimen first arrive,
you must check to see whether the
split specimen is available for testing.
(b) If the split specimen is unavailable or appears insufficient, you must
then do the following:
(1) Continue the testing process for
the primary specimen as you would
normally. Report the results for the
primary specimen without providing
the MRO information regarding the unavailable split specimen.
(2) Upon receiving a letter from the
MRO instructing you to forward the
split specimen to another laboratory
for testing, report to the MRO that the
split specimen is unavailable for testing. Provide as much information as
you can about the cause of the unavailability.
(c) As the laboratory that tested the
primary specimen, you are not authorized to open the split specimen under
any circumstances (except when the
split specimen is redesignated as provided in 40.83).
(d) When you receive written notice
from the MRO instructing you to send
the split specimen to another HHS-certified laboratory, you must forward the
following items to the second laboratory:
(1) The split specimen in its original
specimen bottle, with the seal intact;
(2) A copy of the MROs written request; and
(3) A copy of Copy 1 of the CCF,
which identifies the drug(s)/metabolite(s) or the validity criteria to be
tested for.
(e) You must not send to the second
laboratory any information about the
identity of the employee. Inadvertent
disclosure does not, however, cause a
fatal flaw.
(f) This subpart does not prescribe
who gets to decide which HHS-certified
laboratory is used to test the split
40.177 What does the second laboratory do with the split specimen
when it is tested to reconfirm the
presence of a drug or drug metabolite?
40.179 What does the second laboratory do with the split specimen
when it is tested to reconfirm an
adulterated test result?
(a) As the laboratory testing the split
specimen, you must test the split specimen for the adulterant detected in the
primary specimen, using the confirmatory test for the adulterant and using
criteria in 40.95 and confirmatory cutoff levels required by the HHS Mandatory Guidelines.
(b) In addition, if the test fails to reconfirm the adulterant result reported
in the primary specimen, you may send
the specimen or an aliquot of it for
testing at another HHS-certified laboratory that has the capability to conduct another reconfirmation test.
[73 FR 35973, June 25, 2008]
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40.181
40.181 What does the second laboratory do with the split specimen
when it is tested to reconfirm a substituted test result?
As the laboratory testing the split
specimen, you must test the split specimen using the confirmatory tests for
creatinine and specific gravity, and
using the confirmatory criteria set
forth in 40.93(b).
[73 FR 35973, June 25, 2008]
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40.187
procedures of 40.153, 40.171, 40.173,
40.179, 40.181, and 40.185, as appropriate.
(C) As the laboratory that tests the
primary specimen to reconfirm the
presence of the adulterant found in the
split specimen and/or to determine that
the primary specimen meets appropriate substitution criteria, report
your result to the MRO on a photocopy
(faxed, mailed, scanned, couriered) of
Copy 1 of the CCF.
(D) If the test of the primary specimen reconfirms the adulteration and/or
substitution finding of the split specimen, as the MRO you must report the
result as a refusal to test as provided
in paragraph (a)(2) of this section.
(E) If the test of the primary specimen fails to reconfirm the adulteration
and/or substitution finding of the split
specimen, as the MRO you must cancel
the test, following procedures in paragraph (b) of this section.
(d) Category 4: The laboratory failed
to reconfirm one or more but not all of
the primary specimen results, and also
reported that the split specimen was
invalid,
adulterated,
and/or
substituted. As the MRO, in the case
where the laboratory reconfirmed one
or more of the primary specimen result(s), you must follow procedures in
paragraph (a) of this section and:
(1) Report that the split was also reported as being invalid, adulterated,
and/or substituted (as appropriate).
(2) Inform the DER to take action
only on the reconfirmed result(s).
(e) Category 5: The split specimen was
not available for testing or there was
no split laboratory available to test
the specimen. As the MRO, you must:
(1) Report to the DER and the employee that the test must be cancelled
and the reason for the cancellation;
(2) Direct the DER to ensure the immediate recollection of another specimen from the employee under direct
observation, with no notice given to
the employee of this collection requirement until immediately before the collection; and
(3) Notify ODAPC of the failure to reconfirm using the format in Appendix
D to this part.
(f) For all split specimen results, as
the MRO you must in Step 7 of Copy 2
of the CCF:
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40.189
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40.193
40.193 What happens when an employee does not provide a sufficient
amount of urine for a drug test?
(a) This section prescribes procedures
for situations in which an employee
does not provide a sufficient amount of
urine to permit a drug test (i.e., 45 mL
of urine).
(b) As the collector, you must do the
following:
(1) Discard the insufficient specimen,
except where the insufficient specimen
was out of temperature range or
showed evidence of adulteration or
tampering (see 40.65(b) and (c)).
(2) Urge the employee to drink up to
40 ounces of fluid, distributed reasonably through a period of up to three
hours, or until the individual has provided a sufficient urine specimen,
whichever occurs first. It is not a refusal to test if the employee declines to
drink. Document on the Remarks line
of the CCF (Step 2), and inform the employee of, the time at which the threehour period begins and ends.
(3) If the employee refuses to make
the attempt to provide a new urine
specimen or leaves the collection site
before the collection process is complete, you must discontinue the collection, note the fact on the Remarks
line of the CCF (Step 2), and immediately notify the DER. This is a refusal to test.
(4) If the employee has not provided a
sufficient specimen within three hours
of the first unsuccessful attempt to
provide the specimen, you must discontinue the collection, note the fact
on the Remarks line of the CCF
(Step 2), and immediately notify the
DER.
(5) Send Copy 2 of the CCF to the
MRO and Copy 4 to the DER. You must
send or fax these copies to the MRO
and DER within 24 hours or the next
business day.
(c) As the DER, when the collector
informs you that the employee has not
provided a sufficient amount of urine
(see paragraph (b)(4) of this section),
you must, after consulting with the
MRO, direct the employee to obtain,
within five days, an evaluation from a
licensed physician, acceptable to the
MRO, who has expertise in the medical
issues raised by the employees failure
to provide a sufficient specimen. (The
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40.195
40.195 What happens when an individual is unable to provide a sufficient amount of urine for a pre-employment follow-up or return-toduty test because of a permanent or
long-term medical condition?
(a) This section concerns a situation
in which an employee has a medical
condition that precludes him or her
from providing a sufficient specimen
for a pre-employment follow-up or return-to-duty test and the condition involves a permanent or long-term disability. As the MRO in this situation,
you must do the following:
(1) You must determine if there is
clinical evidence that the individual is
an illicit drug user. You must make
this determination by personally conducting, or causing to be conducted, a
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40.197
cure for an extended period of time, if
ever.
(1) Examples would include destruction (any cause) of the glomerular filtration system leading to renal failure;
unrepaired traumatic disruption of the
urinary tract; or a severe psychiatric
disorder focused on genito-urinary
matters.
(2) Acute or temporary medical conditions, such as cystitis, urethritis or
prostatitis, though they might interfere with collection for a limited period
of time, cannot receive the same exceptional consideration as the permanent
or long-term conditions discussed in
paragraph (d)(1) of this section.
[65 FR 79526, Dec. 19, 2000, as amended at 66
FR 41953, Aug. 9, 2001]
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40.199
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40.205
This flaw may be corrected through the
procedure set forth in 40.205(b)(2), provided that the collection testing process has been conducted in accordance
with the procedures of this part in an
HHS-certified laboratory. During the
period of October 1, 2010November 30,
2011, you are not required to cancel a
test because of the use of an old CCF.
Beginning December 1, 2011, if the problem is not corrected, you must cancel
the test.
[65 FR 79526, Dec. 19, 2000, as amended at 66
FR 41954, Aug. 9, 2001; 75 FR 59108, Sept. 27,
2010; 76 FR 59578, Sept. 27, 2011]
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40.207
failed or refused to sign the certification and that your statement is true
and accurate. You must supply this information on the same business day on
which you are notified of the problem,
transmitting it by fax or courier.
(2) If the problem is the use of a nonFederal form or an expired Federal
form, you must provide a signed statement (i.e., a memorandum for the
record). It must state that the incorrect form contains all the information
needed for a valid DOT drug test, and
that the incorrect form was used inadvertently or as the only means of conducting a test, in circumstances beyond your control. The statement must
also list the steps you have taken to
prevent future use of non-Federal
forms or expired Federal forms for DOT
tests. For this flaw to be corrected, the
test of the specimen must have occurred at a HHS-certified laboratory
where it was tested consistent with the
requirements of this part. You must
supply this information on the same
business day on which you are notified
of the problem, transmitting it by fax
or courier.
(3) You must maintain the written
documentation of a correction with the
CCF.
(4) You must mark the CCF in such a
way (e.g., stamp noting correction) as
to make it obvious on the face of the
CCF that you corrected the flaw.
(c) If the correction does not take
place, as the MRO you must cancel the
test.
40.208 What problem requires corrective action but does not result in
the cancellation of a test?
(a) If, as a laboratory, collector, employer, or other person implementing
the DOT drug testing program, you become aware that the specimen temperature on the CCF was not checked
and the Remarks line did not contain an entry regarding the temperature being out of range, you must take
corrective action, including securing a
memorandum for the record explaining
the problem and taking appropriate action to ensure that the problem does
not recur.
(b) This error does not result in the
cancellation of the test.
(c) As an employer or service agent,
this error, even though not sufficient
to cancel a drug test result, may subject you to enforcement action under
DOT agency regulations or Subpart R
of this part.
[66 FR 41954, Aug. 9, 2001]
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40.213
(c) As an employer or service agent,
these types of errors, even though not
sufficient to cancel a drug test result,
may subject you to enforcement action
under DOT agency regulations or action under Subpart R of this part.
[65 FR 79526, Dec. 19, 2000, as amended at 66
FR 41954, Aug. 9, 2001; 75 FR 59108, Sept. 27,
2010]
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40.213
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40.223
40.267Problems requiring cancellation of
tests.
40.26940.271Correcting problems in tests.
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40.225
cohol test. The ATF must be a threepart carbonless manifold form. The
ATF is found in appendix G to this
part. You may view this form on the
ODAPC web site (http://www.dot.gov/ost/
dapc).
(b) As an employer in the DOT alcohol testing program, you are not permitted to modify or revise the ATF except as follows:
(1) You may include other information needed for billing purposes, outside the boundaries of the form.
(2) You may use a ATF directly generated by an EBT which omits the
space for affixing a separate printed result to the ATF, provided the EBT
prints the result directly on the ATF.
(3) You may use an ATF that has the
employers name, address, and telephone number preprinted. In addition,
a C/TPAs name, address, and telephone
number may be included, to assist with
negative results.
(4) You may use an ATF in which all
pages are printed on white paper. You
may modify the ATF by using colored
paper, or have clearly discernable borders or designation statements on Copy
2 and Copy 3. When colors are used,
they must be green for Copy 2 and blue
for Copy 3.
(5) As a BAT or STT, you may add,
on the Remarks line of the ATF, the
name of the DOT agency under whose
authority the test occurred.
(6) As a BAT or STT, you may use a
ATF that has your name, address, and
telephone number preprinted, but
under no circumstances can your signature be preprinted.
(c) As an employer, you may use an
equivalent foreign-language version of
the ATF approved by ODAPC. You may
use such a non-English language form
only in a situation where both the employee and BAT/STT understand and
can use the form in that language.
[65 FR 79526, Dec. 19, 2000, as amended at 66
FR 41954, Aug. 9, 2001; 75 FR 8529, Feb. 25,
2010; 75 FR 13009, Mar. 18, 2010]
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40.233
(3) Prints, on each copy of the result,
the manufacturers name for the device, its serial number, and the time of
the test;
(4) Distinguishes alcohol from acetone at the 0.02 alcohol concentration
level;
(5) Tests an air blank; and
(6) Performs an external calibration
check.
40.233 What are the requirements for
proper use and care of EBTs?
(a) As an EBT manufacturer, you
must submit, for NHTSA approval, a
quality assurance plan (QAP) for your
EBT before NHTSA places the EBT on
the CPL.
(1) Your QAP must specify the methods used to perform external calibration checks on the EBT, the tolerances
within which the EBT is regarded as
being in proper calibration, and the intervals at which these checks must be
performed. In designating these intervals, your QAP must take into account
factors like frequency of use, environmental conditions (e.g., temperature,
humidity, altitude) and type of operation (e.g., stationary or mobile).
(2) Your QAP must also specify the
inspection, maintenance, and calibration requirements and intervals for the
EBT.
(b) As the manufacturer, you must
include, with each EBT, instructions
for its use and care consistent with the
QAP.
(c) As the user of the EBT (e.g., employer, service agent), you must do the
following:
(1) You must follow the manufacturers instructions (see paragraph (b) of
this section), including performance of
external calibration checks at the intervals the instructions specify.
(2) In conducting external calibration
checks, you must use only calibration
devices appearing on NHTSAs CPL for
Calibrating Units for Breath Alcohol
Tests.
(3) If an EBT fails an external check
of calibration, you must take the EBT
out of service. You may not use the
EBT again for DOT alcohol testing
until it is repaired and passes an external calibration check.
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40.235
scheduled time, contact the DER to determine the appropriate interval within which the DER has determined the
employee is authorized to arrive. If the
employees arrival is delayed beyond
that time, you must notify the DER
that the employee has not reported for
testing. In a situation where a C/TPA
has notified an owner/operator or other
individual employee to report for testing and the employee does not appear,
the C/TPA must notify the employee
that he or she has refused to test.
(b) Ensure that, when the employee
enters the alcohol testing site, you
begin the alcohol testing process without undue delay. For example, you
must not wait because the employee
says he or she is not ready or because
an authorized employer or employee
representative is delayed in arriving.
(1) If the employee is also going to
take a DOT drug test, you must, to the
greatest extent practicable, ensure
that the alcohol test is completed before the urine collection process begins.
(2) If the employee needs medical attention (e.g., an injured employee in an
emergency medical facility who is required to have a post-accident test), do
not delay this treatment to conduct a
test.
(c) Require the employee to provide
positive identification. You must see a
photo ID issued by the employer (other
than in the case of an owner-operator
or other self-employer individual) or a
Federal, state, or local government
(e.g., a drivers license). You may not
accept faxes or photocopies of identification. Positive identification by an
employer representative (not a coworker or another employee being tested) is also acceptable. If the employee
cannot produce positive identification,
you must contact a DER to verify the
identity of the employee.
(d) If the employee asks, provide your
identification to the employee. Your
identification must include your name
and your employers name but is not
required to include your picture, address, or telephone number.
(e) Explain the testing procedure to
the employee, including showing the
employee the instructions on the back
of the ATF.
(f) Complete Step 1 of the ATF.
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40.245
the device and show it to the employee.
You may not use the device after its
expiration date.
(2) Open an individually wrapped or
sealed package containing the device
in the presence of the employee.
(3) Offer the employee the opportunity to use the device. If the employee uses it, you must instruct the
employee to insert it into his or her
mouth and use it in a manner described
by the devices manufacturer.
(4) If the employee chooses not to use
the device, or in all cases in which a
new test is necessary because the device did not activate (see paragraph
(a)(7) of this section), you must insert
the device into the employees mouth
and gather saliva in the manner described by the devices manufacturer.
You must wear single-use examination
or similar gloves while doing so and
change them following each test.
(5) When the device is removed from
the employees mouth, you must follow
the manufacturers instructions regarding necessary next steps in ensuring that the device has activated.
(6)(i) If you were unable to successfully follow the procedures of paragraphs (a)(3) through (a)(5) of this section (e.g., the device breaks, you drop
the device on the floor), you must discard the device and conduct a new test
using a new device.
(ii) The new device you use must be
one that has been under your control
or that of the employee before the test.
(iii) You must note on the Remarks line of the ATF the reason for
the new test. (Note: You may continue
using the same ATF with which you
began the test.)
(iv) You must offer the employee the
choice of using the device or having
you use it unless the employee, in the
opinion of the STT or BAT, was responsible (e.g., the employee dropped the
device) for the new test needing to be
conducted.
(v) If you are unable to successfully
follow the procedures of paragraphs
(a)(3) through (a)(5) of this section on
the new test, you must end the collection and put an explanation on the
Remarks line of the ATF.
(vi) You must then direct the employee to take a new test immediately,
using an EBT for the screening test.
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40.245
(7) If you are able to successfully follow the procedures of paragraphs (a)(3)
(a)(5) of this section, but the device
does not activate, you must discard the
device and conduct a new test, in the
same manner as provided in paragraph
(a)(6) of this section. In this case, you
must place the device into the employees mouth to collect saliva for the new
test.
(8) You must read the result displayed on the device no sooner than
the devices manufacturer instructs. In
all cases the result displayed must be
read within 15 minutes of the test. You
must then show the device and its
reading to the employee and enter the
result on the ATF.
(9) You must never re-use devices,
swabs, gloves or other materials used
in saliva testing.
(10) You must note the fact that you
used a saliva ASD in Step 3 of the ATF.
(b) As the STT or BAT, you must
take the following steps when using
the breath tube ASD:
(1) Check the expiration date on the
detector device and the electronic analyzer or on the package containing the
device and the analyzer and show it to
the employee. You must not use the device or the analyzer after their expiration date. You must not use an analyzer which is not specifically pre-calibrated for the device being used in the
collection.
(2) Remove the device from the package and secure an inflation bag onto
the appropriate end of the device, as directed by the manufacturer on the devices instructions.
(3) Break the tubes ampoule in the
presence of the employee.
(4) Offer the employee the opportunity to use the device. If the employee chooses to use (e.g. hold) the device, instruct the employee to blow
forcefully and steadily into the blowing
end of device until the inflation bag
fills with air (approximately 12 seconds).
(5) If the employee chooses not to
hold the device, you must hold it and
provide the use instructions in paragraph (b)(4) of this section.
(6) When the employee completes the
breath process, take the device from
the employee (or if you were holding it,
remove it from the employees mouth),
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40.251
(vi) Instruct the person accompanying the employee to carry a copy
of the ATF to the BAT who will perform the confirmation test; and
(vii) Ensure that you or another
BAT, STT, or employer representative
observe the employee as he or she is
transported to the confirmation testing site. You must direct the employee
not to attempt to drive a motor vehicle
to the confirmation testing site.
(c) If the screening test is invalid,
you must, as the BAT or STT, tell the
employee the test is cancelled and note
the problem on the Remarks line of
the ATF. If practicable, repeat the
testing process (see 40. 271).
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40.253
(a) After the EBT has printed the result of an alcohol confirmation test,
you must, as the BAT, take the following additional steps:
(1) Sign and date Step 3 of the ATF.
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40.261
(1) Fail to appear for any test (except
a pre-employment test) within a reasonable time, as determined by the employer, consistent with applicable DOT
agency regulations, after being directed to do so by the employer. This
includes the failure of an employee (including an owner-operator) to appear
for a test when called by a C/TPA (see
40.241(a));
(2) Fail to remain at the testing site
until the testing process is complete;
Provided, That an employee who leaves
the testing site before the testing process commences (see 40.243(a)) for a
pre-employment test is not deemed to
have refused to test;
(3) Fail to provide an adequate
amount of saliva or breath for any alcohol test required by this part or DOT
agency regulations; Provided, That an
employee who does not provide an adequate amount of breath or saliva because he or she has left the testing site
before the testing process commences
(see 40.243(a)) for a pre-employment
test is not deemed to have refused to
test;
(4) Fail to provide a sufficient breath
specimen, and the physician has determined, through a required medical
evaluation, that there was no adequate
medical explanation for the failure (see
40.265(c));
(5) Fail to undergo a medical examination or evaluation, as directed by
the employer as part of the insufficient
breath
procedures
outlined
at
40.265(c);
(6) Fail to sign the certification at
Step 2 of the ATF (see 40.241(g) and
40.251(d)); or
(7) Fail to cooperate with any part of
the testing process.
(b) As an employee, if you refuse to
take an alcohol test, you incur the
same consequences specified under
DOT agency regulations for a violation
of those DOT agency regulations.
(c) As a BAT or an STT, or as the
physician evaluating a shy lung situation, when an employee refuses to test
as provided in paragraph (a) of this section, you must terminate the portion
of the testing process in which you are
involved, document the refusal on the
ATF (or in a separate document which
you cause to be attached to the form),
immediately notify the DER by any
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40.263
40.263 What happens when an employee is unable to provide a sufficient amount of saliva for an alcohol screening test?
(a) As the STT, you must take the
following steps if an employee is unable to provide sufficient saliva to
complete a test on a saliva screening
device (e.g., the employee does not provide sufficient saliva to activate the
device).
(1) You must conduct a new screening
test using a new screening device.
(2) If the employee refuses to make
the attempt to complete the new test,
you must discontinue testing, note the
fact on the Remarks line of the ATF,
and immediately notify the DER. This
is a refusal to test.
(3) If the employee has not provided a
sufficient amount of saliva to complete
the new test, you must note the fact on
the Remarks line of the ATF and immediately notify the DER.
(b) As the DER, when the STT informs you that the employee has not
provided a sufficient amount of saliva
(see paragraph (a)(3) of this section),
you must immediately arrange to administer an alcohol test to the employee using an EBT or other breath
testing device.
40.265 What happens when an employee is unable to provide a sufficient amount of breath for an alcohol test?
(a) If an employee does not provide a
sufficient amount of breath to permit a
valid breath test, you must take the
steps listed in this section.
(b) As the BAT or STT, you must instruct the employee to attempt again
to provide a sufficient amount of
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a sufficient amount of breath. The physician must not include in the signed
statement detailed information on the
employees medical condition. In this
case, the test is cancelled.
(B) There is not an adequate basis for
determining that a medical condition
has, or with a high degree of probability could have, precluded the employee from providing a sufficient
amount of breath. This constitutes a
refusal to test.
(C) For purposes of paragraphs
(c)(1)(iv)(A) and (B) of this section, a
medical condition includes an ascertainable physiological condition (e.g., a
respiratory system dysfunction) or a
medically
documented
pre-existing
psychological disorder, but does not include unsupported assertions of situational anxiety or hyperventilation.
(2) As the physician making the evaluation, after making your determination, you must provide a written statement of your conclusions and the basis
for them to the DER directly (and not
through a C/TPA acting as an
itermediary). You must not include in
this statement detailed information on
the employees medical condition beyond what is necessary to explain your
conclusion.
(3) Upon receipt of the report from
the examining physician, as the DER
you must immediately inform the employee and take appropriate action
based upon your DOT agency regulations.
40.267 What problems always cause
an alcohol test to be cancelled?
As an employer, a BAT, or an STT,
you must cancel an alcohol test if any
of the following problems occur. These
are fatal flaws. You must inform the
DER that the test was cancelled and
must be treated as if the test never occurred. These problems are:
(a) In the case of a screening test
conducted on a saliva ASD or a breath
tube ASD:
(1) The STT or BAT reads the result
either sooner than or later than the
time allotted by the manufacturer and
this Part (see 40.245(a)(8) for the saliva
ASD and 40.245(b)(8) for the breath
tube ASD).
(2) The saliva ASD does not activate
(see 40.245(a)(7); or
40.269
(3) The device is used for a test after
the expiration date printed on the device or on its package (see 40.245(a)(1)
for the saliva ASD and 40.245(b)(1) for
the breath tube ASD).
(4) The breath tube ASD is tested
with an analyzer which has not been
pre-calibrated for that devices specific
lot (see 40.245(b)(1)).
(b) In the case of a screening or confirmation test conducted on an EBT,
the sequential test number or alcohol
concentration displayed on the EBT is
not the same as the sequential test
number or alcohol concentration on
the printed result (see 40.253(c), (e)
and (f)).
(c) In the case of a confirmation test:
(1) The BAT conducts the confirmation test before the end of the minimum 15-minute waiting period (see
40.251(a)(1));
(2) The BAT does not conduct an air
blank before the confirmation test (see
40.253(a));
(3) There is not a 0.00 result on the
air blank conducted before the confirmation test (see 40.253(a)(1) and (2));
(4) The EBT does not print the result
(see 40.253(f)); or
(5) The next external calibration
check of the EBT produces a result
that differs by more than the tolerance
stated in the QAP from the known
value of the test standard. In this case,
every result of 0.02 or above obtained
on the EBT since the last valid external calibration check is cancelled (see
40.233(a)(1) and (c)(3)).
[65 FR 79526, Dec. 19, 2000, as amended at 67
FR 61522, Oct. 1, 2002; 71 FR 49384, Aug. 23,
2006; 72 FR 1299, Jan. 11, 2007]
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40.293
ployee successfully complies with the
SAPs evaluation recommendations.
(c) Payment for SAP evaluations and
services is left for employers and employees to decide and may be governed
by existing management-labor agreements and health care benefits.
40.291 What is the role of the SAP in
the evaluation, referral, and treatment process of an employee who
has violated DOT agency drug and
alcohol testing regulations?
(a) As a SAP, you are charged with:
(1) Making a face-to-face clinical assessment and evaluation to determine
what assistance is needed by the employee to resolve problems associated
with alcohol and/or drug use;
(2) Referring the employee to an appropriate education and/or treatment
program;
(3) Conducting a face-to-face followup evaluation to determine if the employee has actively participated in the
education and/or treatment program
and has demonstrated successful compliance with the initial assessment and
evaluation recommendations;
(4) Providing the DER with a followup drug and/or alcohol testing plan for
the employee; and
(5) Providing the employee and employer with recommendations for continuing education and/or treatment.
(b) As a SAP, you are not an advocate for the employer or employee.
Your function is to protect the public
interest in safety by professionally
evaluating the employee and recommending appropriate education/treatment, follow-up tests, and aftercare.
40.293 What is the SAPs function in
conducting the initial evaluation of
an employee?
As a SAP, for every employee who
comes to you following a DOT drug and
alcohol regulation violation, you must
accomplish the following:
(a) Provide a comprehensive face-toface assessment and clinical evaluation.
(b) Recommend a course of education
and/or treatment with which the employee must demonstrate successful
compliance prior to returning to DOT
safety-sensitive duty.
(1) You must make such a recommendation for every individual who
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40.303
mine if the employee demonstrates
successful compliance with your initial
evaluation recommendations.
(c) (1) If the employee has demonstrated successful compliance, you
must provide a written report directly
to the DER highlighting your clinical
determination that the employee has
done so with your initial evaluation
recommendation (see 40.311(d)).
(2) You may determine that an employee has successfully demonstrated
compliance even though the employee
has not yet completed the full regimen
of education and/or treatment you recommended
or
needs
additional
asssitance. For example, if the employee has successfully completed the
30-day in-patient program you prescribed, you may make a successful
compliance
determination
even
though you conclude that the employee
has not yet completed the out-patient
counseling you recommended or should
continue in an aftercare program.
(d)(1) As the SAP, if you believe, as a
result of the follow-up evaluation, that
the employee has not demonstrated
successful compliance with your recommendations, you must provide written notice directly to the DER (see
40.311(e)).
(2) As an employer who receives the
SAPs written notice that the employee has not successfully complied
with the SAPs recommendations, you
must not return the employee to the
performance of safety-sensitive duties.
(3) As the SAP, you may conduct additional follow-up evaluation(s) if the
employer determines that doing so is
consistent
with
the
employees
progress as you have reported it and
with the employers policy and/or
labor-management agreements.
(4) As the employer, following a SAP
report that the employee has not demonstrated successful compliance, you
may take personnel action consistent
with your policy and/or labor-management agreements.
40.303 What happens if the SAP believes the employee needs additional treatment, aftercare, or support group services even after the
employee returns to safety-sensitive
duties?
(a) As a SAP, if you believe that ongoing services (in addition to follow-up
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40.311
(b) You should schedule follow-up
tests on dates of your own choosing,
but you must ensure that the tests are
unannounced with no discernable pattern as to their timing, and that the
employee is given no advance notice.
(c) You cannot substitute any other
tests (e.g., those carried out under the
random testing program) conducted on
the employee for this follow-up testing
requirement.
(d) You cannot count a follow-up test
that has been cancelled as a completed
test. A cancelled follow-up test must be
recollected.
40.311 What are the requirements
concerning SAP reports?
(a) As the SAP conducting the required evaluations, you must send the
written reports required by this section
in writing directly to the DER and not
to a third party or entity for forwarding to the DER (except as provided
in 40.355(e)). You may, however, forward the document simultaneously to
the DER and to a C/TPA.
(b) As an employer, you must ensure
that you receive SAP written reports
directly from the SAP performing the
evaluation and that no third party or
entity changed the SAPs report in any
way.
(c) The SAPs written report, following an initial evaluation that determines what level of assistance is needed to address the employees drug and/
or alcohol problems, must be on the
SAPs own letterhead (and not the letterhead of another service agent)
signed and dated by the SAP, and must
contain the following delineated items:
(1) Employees name and SSN;
(2) Employers name and address;
(3) Reason for the assessment (specific violation of DOT regulations and
violation date);
(4) Date(s) of the assessment;
(5) SAPs education and/or treatment
recommendation; and
(6) SAPs telephone number.
(d) The SAPs written report concerning a follow-up evaluation that determines the employee has demonstrated successful compliance must
be on the SAPs own letterhead (and
not the letterhead of another service
agent), signed by the SAP and dated,
and must contain the following items:
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40.323 May program participants release drug or alcohol test information in connection with legal proceedings?
(a) As an employer, you may release
information pertaining to an employees drug or alcohol test without the
employees consent in certain legal
proceedings.
(1) These proceedings include a lawsuit (e.g., a wrongful discharge action),
grievance (e.g., an arbitration concerning disciplinary action taken by
the employer), or administrative proceeding (e.g., an unemployment compensation hearing) brought by, or on
behalf of, an employee and resulting
from a positive DOT drug or alcohol
test or a refusal to test (including, but
not limited to, adulterated or substituted test results).
(2) These proceedings also include a
criminal or civil action resulting from
an employees performance of safetysensitive duties, in which a court of
competent jurisdiction determines that
the drug or alcohol test information
sought is relevant to the case and
issues an order directing the employer
to produce the information. For example, in personal injury litigation following a truck or bus collision, the
court could determine that a post-accident drug test result of an employee is
relevant to determining whether the
driver or the drivers employer was
negligent. The employer is authorized
to respond to the courts order to
produce the records.
(b) In such a proceeding, you may release the information to the decisionmaker in the proceeding (e.g., the court
in a lawsuit). You may release the information only with a binding stipulation that the decisionmaker to whom
it is released will make it available
only to parties to the proceeding.
40.329
(c) If you are a service agent, and the
employer requests its employees drug
or alcohol testing information from
you to use in a legal proceeding as authorized in paragraph (a) of this section (e.g., the laboratorys data package), you must provide the requested
information to the employer.
(d) As an employer or service agent,
you must immediately notify the employee in writing of any information
you release under this section.
40.325
[Reserved]
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40.331
employee, copies of any records pertaining to the employees use of alcohol and/or drugs, including records of
the employees DOT-mandated drug
and/or alcohol tests. You may charge
no more than the cost of preparation
and reproduction for copies of these
records.
(b) As a laboratory, you must provide, within 10 business days of receiving a written request from an employee, and made through the MRO,
the records relating to the results of
the employees drug test (i.e., laboratory report and data package). You
may charge no more than the cost of
preparation and reproduction for copies
of these records.
(c) As a SAP, you must make available to an employee, on request, a copy
of all SAP reports (see 40.311). However, you must redact follow-up testing
information from the report before providing it to the employee.
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40.343
gram need not maintain random alcohol testing records).
(c) You must maintain the records in
a location with controlled access.
(d) A service agent may maintain
these records for you. However, you
must ensure that you can produce
these records at your principal place of
business in the time required by the
DOT agency. For example, as a motor
carrier, when an FMCSA inspector requests your records, you must ensure
that you can provide them within two
business days.
(e) If you store records electronically, where permitted by this part,
you must ensure that the records are
easily accessible, legible, and formatted and stored in an organized
manner. If electronic records do not
meet these criteria, you must convert
them to printed documentation in a
rapid and readily auditable manner, at
the request of DOT agency personnel.
[65 FR 79526, Dec. 19, 2000, as amended at 66
FR 41955, Aug. 9, 2001]
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40.353
for X without having a specific, written
consent from Jones. Likewise, you may
not provide this information to employer Z, who is not a C/TPA member,
without this consent.
(d) You must not use blanket consent
forms authorizing the release of employee testing information.
(e) You must establish adequate confidentiality and security measures to
ensure that confidential employee
records are not available to unauthorized persons. This includes protecting
the physical security of records, access
controls, and computer security measures to safeguard confidential data in
electronic data bases.
40.353 What principles govern the
interaction between MROs and
other service agents?
As a service agent other than an
MRO (e.g., a C/TPA), the following
principles govern your interaction with
MROs:
(a) You may provide MRO services to
employers, directly or through contract, if you meet all applicable provisions of this part.
(b) If you employ or contract for an
MRO, the MRO must perform duties
independently
and
confidentially.
When you have a relationship with an
MRO, you must structure the relationship to ensure that this independence
and confidentiality are not compromised. Specific means (including
both physical and operational measures, as appropriate) to separate MRO
functions and other service agent functions are essential.
(c) Only your staff who are actually
under the day-to-day supervision and
control of an MRO with respect to
MRO functions may perform these
functions. This does not mean that
those staff may not perform other
functions at other times. However, the
designation of your staff to perform
MRO functions under MRO supervision
must be limited and not used as a subterfuge to circumvent confidentiality
and other requirements of this part and
DOT agency regulations. You must ensure that MRO staff operate under controls sufficient to ensure that the independence and confidentiality of the
MRO process are not compromised.
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40.365
duct business only with responsible
service agents.
(b) The Department therefore uses
PIEs to exclude from participation in
DOTs drug and alcohol testing program any service agent who, by serious
noncompliance with this part or other
DOT agency drug and alcohol testing
regulations, has shown that it is not
currently acting in a responsible manner.
(c) A PIE is a serious action that the
Department takes only to protect the
public interest. We intend to use PIEs
only to remedy situations of serious
noncompliance. PIEs are not used for
the purpose of punishment.
(d) Nothing in this subpart precludes
a DOT agency or the Inspector General
from taking other action authorized by
its regulations with respect to service
agents or employers that violate its
regulations.
40.363 On what basis may the Department issue a PIE?
(a) If you are a service agent, the Department may issue a PIE concerning
you if we determine that you have
failed or refused to provide drug or alcohol testing services consistent with
the requirements of this part or a DOT
agency drug and alcohol regulation.
(b) The Department also may issue a
PIE if you have failed to cooperate
with DOT agency representatives concerning inspections, complaint investigations, compliance and enforcement
reviews, or requests for documents and
other information about compliance
with this part or DOT agency drug and
alcohol regulations.
40.365 What is the Departments policy concerning starting a PIE proceeding?
(a) It is the Departments policy to
start a PIE proceeding only in cases of
serious, uncorrected noncompliance
with the provisions of this part, affecting such matters as safety, the outcomes of test results, privacy and confidentiality, due process and fairness
for employees, the honesty and integrity of the testing program, and cooperation with or provision of information to DOT agency representatives.
(b) The following are examples of the
kinds of serious noncompliance that, as
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40.367
(9) For any service agent, maintaining a relationship with another party
that constitutes a conflict of interest
under this part (e.g., a laboratory that
derives a financial benefit from having
an employer use a specific MRO);
(10) For any service agent, representing falsely that the service agent
or its activities is approved or certified
by the Department or a DOT agency;
(11) For any service agent, disclosing
an employees test result information
to any party this part or a DOT agency
regulation does not authorize, including by obtaining a blanket consent
from employees or by creating a data
base from which employers or others
can retrieve an employees DOT test
results without the specific consent of
the employee;
(12) For any service agent, interfering or attempting to interfere with
the ability of an MRO to communicate
with the Department, or retaliating
against an MRO for communicating
with the Department;
(13) For any service agent, directing
or recommending that an employer fail
or refuse to implement any provision of
this part; or
(14) With respect to noncompliance
with a DOT agency regulation, conduct
that affects important provisions of
Department-wide concern (e.g., failure
to properly conduct the selection process for random testing).
40.367 Who
ceeding?
initiates
PIE
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40.377
40.375 How does the initiating official start a PIE proceeding?
(a) As a service agent, if your compliance matter is not correctable (see
40.373(a)), or if have not resolved compliance
matters
as
provided
in
40.373(c), the initiating official starts
a PIE proceeding by sending you a notice of proposed exclusion (NOPE). The
NOPE contains the initiating officials
recommendations
concerning
the
issuance of a PIE, but it is not a decision by the Department to issue a PIE.
(b) The NOPE includes the following
information:
(1) A statement that the initiating
official is recommending that the Department issue a PIE concerning you;
(2) The factual basis for the initiating officials belief that you are not
providing drug and/or alcohol testing
services to DOT-regulated employers
consistent with the requirements of
this part or are in serious noncompliance with a DOT agency drug and alcohol regulation;
(3) The factual basis for the initiating officials belief that your noncompliance has not been or cannot be
corrected;
(4) The initiating officials recommendation for the scope of the PIE;
(5) The initiating officials recommendation for the duration of the
PIE; and
(6) A statement that you may contest
the issuance of the proposed PIE, as
provided in 40.379.
(c) The initiating official sends a
copy of the NOPE to the ODAPC Director at the same time he or she sends
the NOPE to you.
40.377 Who decides whether to issue
a PIE?
(a) The ODAPC Director, or his or
her designee, decides whether to issue a
PIE. If a designee is acting as the decisionmaker, all references in this subpart to the Director refer to the designee.
(b) To ensure his or her impartiality,
the Director plays no role in the initiating officials determination about
whether to start a PIE proceeding.
(c) There is a firewall between the
initiating official and the Director.
This means that the initiating official
and the Director are prohibited from
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40.379
having any discussion, contact, or exchange of information with one another about the matter, except for documents and discussions that are part of
the record of the proceeding.
40.379 How do you
issuance of a PIE?
contest
the
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40.389
40.389 What factors may the Director
consider?
This section lists examples of the
kind of mitigating and aggravating
factors that the Director may consider
in determining whether to issue a PIE
concerning you, as well as the scope
and duration of a PIE. This list is not
exhaustive or exclusive. The Director
may consider other factors if appropriate in the circumstances of a particular case. The list of examples follows:
(a) The actual or potential harm that
results or may result from your noncompliance;
(b) The frequency of incidents and/or
duration of the noncompliance;
(c) Whether there is a pattern or
prior history of noncompliance;
(d) Whether the noncompliance was
pervasive within your organization, including such factors as the following:
(1) Whether and to what extent your
organization planned, initiated, or carried out the noncompliance;
(2) The positions held by individuals
involved in the noncompliance, and
whether your principals tolerated their
noncompliance; and
(3) Whether you had effective standards of conduct and control systems
(both with respect to your own organization and any contractors or affiliates) at the time the noncompliance
occurred;
(e) Whether you have demonstrated
an appropriate compliance disposition,
including such factors as the following:
(1) Whether you have accepted responsibility for the noncompliance and
recognize the seriousness of the conduct that led to the cause for issuance
of the PIE;
(2) Whether you have cooperated
fully with the Department during the
investigation. The Director may consider when the cooperation began and
whether you disclosed all pertinent information known to you;
(3) Whether you have fully investigated the circumstances of the noncompliance forming the basis for the
PIE and, if so, have made the result of
the investigation available to the Director;
(4) Whether you have taken appropriate disciplinary action against the
individuals responsible for the activity
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40.391
40.391
(a) The scope of a PIE is the Departments determination about the divisions, organizational elements, types of
services, affiliates, and/or individuals
(including direct employees of a service
agent and its contractors) to which a
PIE applies.
(b) If, as a service agent, the Department issues a PIE concerning you, the
PIE applies to all your divisions, organizational elements, and types of services that are involved with or affected
by the noncompliance that forms the
factual basis for issuing the PIE.
(c) In the NOPE (see 40.375(b)(4)), the
initiating official sets forth his or her
recommendation for the scope of the
PIE. The proposed scope of the PIE is
one of the elements of the proceeding
that the service agent may contest (see
40.381(b)) and about which the Director makes a decision (see 40.387(b)(3)).
(d) In recommending and deciding
the scope of the PIE, the initiating official and Director, respectively, must
take into account the provisions of
paragraphs (e) through (j) of this section.
(e) The pervasiveness of the noncompliance within a service agents organization (see 40.389(d)) is an important consideration in determining the
scope of a PIE. The appropriate scope
of a PIE grows broader as the pervasiveness of the noncompliance increases.
(f) The application of a PIE is not
limited to the specific location or employer at which the conduct that forms
the factual basis for issuing the PIE
was discovered.
(g) A PIE applies to your affiliates, if
the affiliate is involved with or af-
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40.401
Director considers factors such as
those listed in 40.389 in making this
decision.
(c) The duration of a PIE will be between one and five years, unless the Director reduces its duration under
40.407.
40.395 Can you settle a PIE proceeding?
At any time before the Directors decision, you and the initiating official
can, with the Directors concurrence,
settle a PIE proceeding.
40.397 When does the Director make
a PIE decision?
The Director makes his or her decision within 60 days of the date when
the record of a PIE proceeding is complete (including any meeting with the
Director and any additional fact-finding that is necessary). The Director
may extend this period for good cause
for additional periods of up to 30 days.
40.399 How does the Department notify service agents of its decision?
If you are a service agent involved in
a PIE proceeding, the Director provides
you written notice as soon as he or she
makes a PIE decision. The notice includes the following elements:
(a) If the decision is not to issue a
PIE, a statement of the reasons for the
decision, including findings of fact
with respect to any material factual
issues that were in dispute.
(b) If the decision is to issue a PIE
(1) A reference to the NOPE;
(2) A statement of the reasons for the
decision, including findings of fact
with respect to any material factual
issues that were in dispute;
(3) A statement of the scope of the
PIE; and
(4) A statement of the duration of the
PIE.
40.401 How does the Department notify employers and the public about
a PIE?
(a) The Department maintains a document called the List of Excluded
Drug and Alcohol Service Agents.
This document may be found on the
Departments
web
site
(http://
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40.403
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(f) The issuance of a PIE does not result in the cancellation of drug or alcohol tests conducted using the service
agent involved before the issuance of
the Directors decision or up to 90 days
following its publication in the FEDERAL REGISTER or posting on the Departments web site, unless otherwise
specified in the Directors PIE decision
or the Director grants an extension as
provided in paragraph (b) of this section.
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ERS
to employers, the transmission of SAP reports to employers, the transmission of positive alcohol test results, and the transmission of medical information from MROs
to employers.
2. In every case, you must ensure that, in
transmitting the information, you meet all
requirements (e.g., concerning confidentiality and timing) that would apply if the
party originating the information (e.g., an
MRO or collector) sent the information directly to the employer. For example, if you
transmit MROs drug testing results to
DERs, you must transmit each drug test result to the DER in compliance with the requirements for MROs set forth in 40.167.
DRUG TESTING INFORMATION
40.25: Previous two years test results
40.35: Notice to collectors of contact information for DER
40.61(a): Notification to DER that an employee is a no show for a drug test
40.63(e): Notification to DER of a collection
under direct observation
40.65(b)(6) and (7) and (c)(2) and (3): Notification to DER of a refusal to provide a
specimen or an insufficient specimen
40.73(a)(9): Transmission of CCF copies to
DER (However, MRO copy of CCF must
be sent by collector directly to the MRO,
not through the C/TPA.)
40.111(a): Transmission of laboratory statistical report to employer
40.127(f): Report of test results to DER
40.127(g), 40.129(d), 40.159(a)(4)(ii); 40.161(b):
Reports to DER that test is cancelled
40.129 (d): Report of test results to DER
40.129(g)(1): Report to DER of confirmed
positive test in stand-down situation
40.149(b): Report to DER of changed test result
40.155(a): Report to DER of dilute specimen
40.167(b) and (c): Reports of test results to
DER
40.187(a)(e) Reports to DER concerning the
reconfirmation of tests
40.191(d): Notice to DER concerning refusals
to test
40.193(b)(3): Notification to DER of refusal
in shy bladder situation
40.193(b)(4): Notification to DER of insufficient specimen
40.193(b)(5): Transmission of CCF copies to
DER (not to MRO)
40.199: Report to DER of cancelled test and
direction to DER for additional collection
40.201: Report to DER of cancelled test
ALCOHOL TESTING INFORMATION
40.215: Notice to BATs and STTs of contact
information for DER
40.241(b)(1): Notification to DER that an
employee is a no show for an alcohol
test
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The following form is the alcohol testing form required for use in the DOT alcohol testing
program beginning January 1, 2011. Employers are authorized to use the form effective February 25, 2010.
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ER25FE10.001</GPH>
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ER25FE10.002</GPH>
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ER25FE10.003</GPH>
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ER25FE10.004</GPH>
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ER25FE10.005</GPH>
[75 FR 8529, Feb. 25, 2010, as amended at 75 FR 13009, Mar. 18, 2010; 75 FR 38423, July 2, 2010]
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ER25FE10.006</GPH>
The following form is the MIS Data Collection form required for use beginning in 2011 to
report calendar year 2010 MIS data.
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ER25FE10.007</GPH>
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ER25FE10.008</GPH>
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ER25FE10.009</GPH>
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ER25FE10.012</GPH>
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ER25FE10.013</GPH>
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ER25FE10.014</GPH>
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ER25FE10.015</GPH>
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ER25FE10.016</GPH>
Pt. 41
(a) This part implements the provisions of 49 U.S.C. 7701 et seq. and Executive Order (E.O.) 12699, Seismic Safety
of Federal and Federally-Assisted or
Regulated New Building Construction
(3 CFR, 1990 Comp., p. 269). Under the
Executive Order the DOT is given the
responsibility for developing and implementing its own mission-appropriate and cost-effective regulations
governing seismic safety.
(b) This part applies to new DOT
owned buildings and to new DOT
leased, assisted and regulated buildings. The purpose of this part is to reduce risk to lives of the building occupants, improve the capabilities of essential buildings to function during or
after an earthquake, and to reduce
earthquake losses of public buildings
and investments.
41.105
Definitions.
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ER25FE10.017</GPH>
41.100
(c) This part may be further implemented by the DOT Operating Administrations.
41.120
ards approved by the DOT operating
Administration under 41.120 of this
part in order to be eligible for Federal
financial assistance.
(d) For buildings built with Federal
financial assistance, a certification of
compliance with the seismic design and
construction requirements of this part
is required prior to the furnishing of
such assistance. Such statements of
compliance may include the engineers
and
architects
authenticated
verifications of seismic design codes,
standards, and practices used in the design and construction of the building,
construction observation reports, local
or state building department plan review documents, or other documents
deemed appropriate by the DOT Operating Administration.
41.119
(a) This section describes the standards that must be used to meet the
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41.125
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71.5
71.2 Annual advancement of standard time.
(a) The Uniform Time Act of 1966 (15
U.S.C. 260a(a)), as amended, requires
that the standard time of each State
observing Daylight Saving Time shall
be advanced 1 hour beginning at 2:00
a.m. on the first Sunday in April of
each year and ending on the last Sunday in October. This advanced time
shall be the standard time of each zone
during such period. The Act authorizes
any State to exempt itself from this requirement. States in two or more time
zones may exempt the easternmost
time zone portion from this requirement.
(b) Section 3(b) of the Uniform Time
Act of 1966 (15 U.S.C. 260a(b)) provides
that it is the express intent of Congress * * * to supersede any and all
laws of the States or political subdivisions thereof insofar as they may now
or hereafter provide for advances in
time or changeover dates different
from those specified in [section 3(a) of
that Act], which are those specified in
paragraph (a) of this section.
[Amdt. 7111, 35 FR 12318, Aug. 1, 1970, as
amended by Amdt. 7121, 52 FR 41631, Nov. 18,
1986]
71.3
Atlantic zone.
Eastern zone.
The second zone, the eastern standard time zone, includes that part of the
United States that is west of 6730 W.
longitude and east of the boundary line
described in 71.5, and includes all of
the State of Maine, but does not include any part of the Commonwealth of
Puerto Rico.
71.5 Boundary line between eastern
and central zones.
(a)
Minnesota-Michigan-Wisconsin.
From the junction of the western
boundary of the State of Michigan with
the boundary between the United
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71.5
States and Canada northerly and easterly along the west line of Gogebic
County to the west line of Ontonagon
County; thence south along the west
line of Ontonagon County to the north
line of Gogebic County; thence southerly and easterly along the north line
of Gogebic County to the west line of
Iron County; thence north along the
west line of Iron County to the north
line of Iron County; thence east along
the north line of Iron County to the
east line of Iron County; thence south
along the east line of Iron County to
the north line of Dickinson County;
thence east along the north line of
Dickinson County to the east line of
Dickinson County; thence south along
the east line of Dickinson County to
the north line of Menominee County;
thence east along the north line of Menominee County to the east line of Menominee County; thence southerly and
easterly along the east line of Menominee County to Lake Michigan; thence
east to the western boundary of the
State of Michigan; thence southerly
and easterly along the western boundary of the State of Michigan to a point
in the middle of Lake Michigan opposite the main channel of Green Bay;
thence southerly along the western
boundary of the State of Michigan to
its junction with the southern boundary thereof and the northern boundary
of the State of Indiana.
(b) Indiana-Illinois. From the junction
of the western boundary of the State of
Michigan with the northern boundary
of the State of Indiana easterly along
the northern boundary of the State of
Indiana to the east line of LaPorte
County; thence southerly along the
east line of LaPorte County to the
north line of Starke County; thence
east along the north line of Starke
County to the west line of Marshall
County; thence south along the west
line of Marshall County; thence west
along the north line of Pulaski County
to the east line of Jasper County;
thence south along the east line of Jasper County to the south line of Jasper
County; thence west along the south
lines of Jasper and Newton Counties to
the western boundary of the State of
Indiana; thence south along the western boundary of the State of Indiana to
the north line of Gibson County;
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71.6
Central zone.
71.7
ner of 147 N., R. 102 W.; thence east to
the southwest corner of T. 148 N., R. 101
W.; thence south to the middle of the
Little Missouri; thence easterly and
northerly along the middle of that
river to the midpoint of its confluence
with the Missouri River; thence southerly and easterly along the middle of
the Missouri River to the midpoint of
its confluence with the western land
boundary of Mercer County; thence
south along the western county line of
Mercer County to the southwest boundary; thence east and south along the
southwestern county boundary of Morton County to the intersection with
the boundary with Sioux County;
thence west and south along the northern boundary of Sioux County to the
center of State Highway 31; thence
south along the center of State Highway 31 to the State border with South
Dakota; thence east along the southern
boundary of Sioux County in the middle of the Missouri River.
(b) South Dakota. From the junction
of the North Dakota-South Dakota
boundary with the Missouri River
southerly along the main channel of
that river to the crossing of the original Chicago & North Western Railway
near Pierre; thence southwesterly to
the northern boundary of Jones County
at the northeast corner of the NE 1,
Sec. 6, T. 2 N., R. 30 E.; thence west
along the northern boundary of Jones
County; thence south along the western boundaries of Jones, Mellette and
Todd Counties to the South DakotaNebraska boundary.
(c) Nebraska. From the junction of
the west line of Tripp County, South
Dakota with the South Dakota-Nebraska boundary west along that
boundary to the west line of R. 30 W.;
thence south along the range line between Rs. 30 and 31 W. to the southwest
corner of sec. 19, T. 33 N., R. 30 W.;
thence easterly along section lines to
the northeast corner of sec. 29, T. 33 N.,
R. 30 W.; thence southerly along section lines with their offsets to the
northeast corner of sec. 17, T. 32 N., R.
30 W.; thence westerly along section
lines to the northwest corner of sec. 18,
T. 32 N., R. 30 W.; thence southerly
along the range line to the southwest
corner of T. 31 N., R. 30 W.; thence easterly along the township line to the
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71.8
southerly along the east lines of Greeley County and Hamilton Counties;
thence westerly along the south line of
Hamilton County to the Kansas-Colorado boundary; thence southerly along
the Kansas Colorado boundary to the
junction of that boundary with the
north boundary of the State of Oklahoma.
(e) Oklahoma-Texas-New Mexico. From
the junction of the Kansas-Colorado
boundary with the northern boundary
of the State of Oklahoma westerly
along the Colorado-Oklahoma boundary to the northwest corner of the
State of Oklahoma; thence southerly
along the west boundary of the State of
Oklahoma and the west boundary of
the State of Texas to the southeast
corner of the State of New Mexico;
thence westerly along the Texas-New
Mexico boundary to the east line of
Hudspeth County, Tex.; thence southerly along the east line of Hudspeth
County, Tex., to the boundary between
the United States and Mexico.
(f) [Reserved]
(g) Points on boundary line. All municipalities located upon the zone
boundary line described in this section
are in the mountain standard time
zone, except Murdo, S. Dak., which is
in the central standard time zone.
[Amdt. 7111, 35 FR 12318, Aug. 1, 1970, as
amended by Amdt. 7114, 38 FR 13725, May 25,
1973; Amdt. 7116, 43 FR 42763, Sept. 21, 1978;
55 FR 30914, July 30, 1990; 57 FR 48339, Oct. 23,
1992; 68 FR 43336, July 22, 2003; 68 FR 49373,
Aug. 18, 2003; 68 FR 61372, Oct. 28, 2003; 75 FR
60007, Sept. 29, 2010]
71.8
Mountain zone.
The fourth zone, the mountain standard time zone, includes that part of the
United States that is west of the
boundary line between the central and
mountain standard time zones described in 71.7 and east of the boundary line between the mountain and Pacific standard time zones described in
71.9.
71.9 Boundary line between mountain and Pacific zones.
(a) Montana-Idaho-Oregon. From the
junction of the Idaho-Montana boundary with the boundary between the
United States and Canada southerly
along the Idaho-Montana boundary to
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71.10
Pacific zone.
71.14
include any part of the State of Alaska.
(Act of March 19, 1918, as amended by the
Uniform Time Act of 1966 and Pub. L. 97449,
15 U.S.C. 260264; 49 CFR 1.59(a)).
[Amdt. 7119, 48 FR 43281, Sept. 22, 1983]
71.11
Alaska zone.
71.12
Hawaii-Aleutian zone.
The seventh zone, the Hawaii-Aleutian standard time zone, includes the
entire State of Hawaii and, in the
State of Alaska, that part of the Aleutian Islands that is west of 169 degrees
30 minutes west longitude.
(Act of March 19, 1918, as amended by the
Uniform Time Act of 1966 and Pub. L. 97449,
15 U.S.C. 260264; 49 CFR 1.59(a)).
[Amdt. 7119, 48 FR 43281, Sept. 22, 1983, as
amended by Amdt. 7120, 48 FR 55289, Dec. 12,
1983]
71.13
Samoa zone.
71.14
Chamorro Zone.
The ninth zone, the Chamorro standard time zone, includes the Island of
Guam and the Commonwealth of the
Northern Mariana Islands.
[68 FR 49712, Aug. 19, 2003]
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Pt. 79
Scope.
Application.
Investigation.
Award.
Design.
79.1 Scope.
(a) This part implements 49 U.S.C.
80504, which authorizes the President of
the United States to award a bronze
medal for bravery to any person who,
by extreme daring, risks his/her life in
trying to prevent, or to save the life of
a person in, a grave accident/incident
in the United States that involves an
interstate rail carrier or a motor vehicle being operated on public highways.
(b) The actions for which the medal
may be awarded must reflect such unusual daring and bravery that a person
would not normally be expected to perform them as a regular part of his/her
regular work or vocation.
79.3 Application.
(a) Any person may apply for the
award of the medal described in 79.1,
but only on behalf of another person,
by writing to the Secretary of Transportation, Attention: Medals of Honor,
within two (2) years of the action that
is the subject of the application.
(b) Although no application form is
required, the following information
must be provided:
(1) Name, address, and telephone
number of the person submitting the
application.
(2) Name, address, and telephone
number of the person on whose behalf
the application is submitted.
(3) Date, time, place, and weather
conditions of the action that is the
subject of the application.
(4) Identification of rail or motor carrier involved, or of operator of motor
vehicles involved.
(5) Identification of any public or private authority that investigated the
accident/incident involved.
(6) Name, address, and telephone
number of any witness to the action
that is the subject of the application.
Purpose.
Definitions.
Limitations on assistance.
Application process.
Federal requirements.
Investment-grade ratings.
Threshold criteria.
Selection criteria.
Fees.
Reporting requirements.
Use of administrative offset.
80.1 Purpose.
This part implements a Federal credit assistance program for surface transportation projects.
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80.3
credit authorized to be made available
under this subchapter with respect to a
project.
Investment-grade rating means a rating category of BBB minus, Baa3, or
higher assigned by a rating agency to
project obligations offered into the
capital markets.
Lender means any non-Federal qualified institutional buyer (as defined in
17 CFR 230.144A(a)), known as Rule
144A(a) of the Securities and Exchange
Commission and issued under the Securities Act of 1933 (15 U.S.C. 77a et seq.),
including:
(1) A qualified retirement plan (as defined in section 4974(c) of the Internal
Revenue Code of 1986, 26 U.S.C. 4974(c))
that is a qualified institutional buyer;
and
(2) A governmental plan (as defined
in section 414(d) of the Internal Revenue Code of 1986, 26 U.S.C. 414(d)) that
is a qualified institutional buyer.
Line of credit means an agreement entered into by the Secretary with an obligor under section 184 of title 23 to
provide a direct loan at a future date
upon the occurrence of certain events.
Loan guarantee means any guarantee
or other pledge by the Secretary to pay
all or part of the principal of and interest on a loan or other debt obligation
issued by an obligor and funded by a
lender.
Local servicer means:
(1) A State infrastructure bank established under title 23; or
(2) A State or local government or
any agency of a State or local government that is responsible for servicing a
Federal credit instrument on behalf of
the Secretary.
Obligor means a party primarily liable for payment of the principal of or
interest on a Federal credit instrument, which party may be a corporation, partnership, joint venture, trust,
or governmental entity, agency, or instrumentality.
Project means:
(1)
Any
surface
transportation
project eligible for Federal assistance
under title 23 or chapter 53 of title 49;
(2) A project for an international
bridge or tunnel for which an international entity authorized under Federal or State law is responsible;
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80.5
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80.9
80.7
80.9
Application process.
Federal requirements.
All projects receiving credit assistance under this part shall comply with:
(a) The relevant requirements of title
23, U.S.C., for highway projects, chapter 53 of title 49, U.S.C., for transit
projects, and section 5333(a) of title 49
for rail projects, as appropriate;
(b) Title VI of the Civil Rights Act of
1964 (42 U.S.C. 2000d et seq.);
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80.11
(c) The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
(d) The Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 (42 U.S.C. 4601 et
seq.); and
(e) Other Federal and compliance requirements as may be applicable.
80.11
Investment-grade ratings.
(a) At the time a project sponsor submits an application, the DOT shall require a preliminary rating opinion letter. This letter is a conditional credit
assessment from a nationally recognized credit rating agency that provides a preliminary indication of the
projects overall creditworthiness and
that specifically addresses the potential of the projects senior debt obligations (those obligations having a lien
senior to that of the TIFIA credit instrument on the pledged security) to
achieve an investment-grade rating.
(b) The full funding of a secured (direct) loan, loan guarantee, or line of
credit shall be contingent on the assignment of an investment-grade rating by a nationally recognized bond
rating agency to all project obligations
that have a lien senior to that of the
Federal credit instrument on the
pledged security.
(c) Neither the preliminary rating
opinion letter nor the formal credit
rating should reflect the effect of bond
insurance, unless that insurance provides credit enhancement that secures
the TIFIA obligation.
(d) The project sponsor must annually provide, at no cost to the Federal
Government, ongoing credit evaluations of the project and related debt
obligations, including an annual assessment of the TIFIA credit instrument. The evaluations are to be performed by a nationally recognized
credit rating agency and provided to
the DOT throughout the life of the
TIFIA credit instrument. In addition,
the project sponsor will furnish the
DOT with any other credit surveillance
reports on the TIFIA-assisted project
as soon as they are available.
[64 FR 29750, June 2, 1999, as amended at 65
FR 44939, July 19, 2000]
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80.17
(c) The Secretary may also give preference to applications for loan guarantees rather than other forms of Federal
credit assistance. This preference is
consistent with Federal policy that,
when Federal credit assistance is necessary to meet a Federal objective,
loan guarantees should be favored over
direct loans, unless attaining the Federal objective requires a subsidy, as defined by the Federal Credit Reform Act
of 1990 (2 U.S.C. 661 et seq.), deeper than
can be provided by a loan guarantee.
[64 FR 29750, June 2, 1999, as amended at 65
FR 44940, July 19, 2000]
80.17
Fees.
(a) The DOT will require a non-refundable application fee for each
project applying for credit assistance
under the TIFIA. The DOT may also require an additional credit processing
fee for projects selected to receive
TIFIA assistance. Any required application initiation or credit processing
fee must be paid by the project sponsor
applying for TIFIA assistance and cannot be paid by another party on behalf
of the project sponsor. The proceeds of
any such fees will equal a portion of
the costs to the Federal Government of
soliciting and evaluating applications,
selecting projects to receive assistance,
and negotiating credit agreements. For
FY 2000, the DOT will require payment
of a fee of $5,000 for each project applying for credit assistance under the
TIFIA, to be submitted concurrently
with the formal application. The DOT
will not impose any credit processing
fees for FY 2000. For each application
and approval cycle in FY 2001 and beyond, the DOT may adjust the amount
of the application fee and will determine the appropriate amount of the
credit processing fee based on program
implementation experience. The DOT
will publish these amounts in each
FEDERAL REGISTER solicitation for applications.
(b) Applicants shall not include application initiation or credit processing fees or any other expenses associated with the application process
(such as fees associated with obtaining
the required preliminary rating opinion letter) among eligible project costs
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80.19
for the purpose of calculating the maximum 33 percent credit amount referenced in 80.5(a).
(c) If, in any given year, there is insufficient budget authority to fund the
credit instrument for a qualified
project that has been selected to receive assistance under TIFIA, the DOT
and the approved applicant may agree
upon a supplemental fee to be paid by
or on behalf of the approved applicant
at the time of execution of the term
sheet to reduce the subsidy cost of that
project. No such fee may be included
among eligible project costs for the
purpose of calculating the maximum 33
percent credit amount referenced in
80.5(a).
(d) The DOT will require borrowers to
pay servicing fees for each credit instrument approved for funding. Separate fees may apply for each type of
credit instrument (e.g., a loan guarantee, a secured loan with a single disbursement, a secured loan with multiple disbursements, or a line of credit), depending on the costs of servicing
the credit instrument as determined by
the Secretary. Such fees will be set at
a level to enable the DOT to recover all
or a portion of the costs to the Federal
Government of TIFIA credit instruments.
[65 FR 44940, July 19, 2000]
Subpart AGeneral
89.1 Purpose.
This part implements the Federal
Claims Collection Act of 1966, 31 U.S.C.
37013720 A, as amended primarily by
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89.5
(d) Claims arising out of contracts
that contain specific provisions relating to claims are governed by those
specific provisions to the extent that
those provisions comply with existing
law and with 4 CFR chapter II.
(e) As used in this part, the terms
debt and claims are interchangeable
and have the meaning defined in 4 CFR
101.2(a). A debtors liability arising out
of a particular incident or adjudication
exclusive of interest, administrative
costs, and late payment penalties, is a
single claim.
(f) Except as provided in paragraphs
(b), (c) and (d) of this section the provisions of this part shall apply to the collection of all debts and claims owed to
any DOT operating element. A claim
arising from the assessment of civil
penalty or fine is not subject to the
procedures of this subpart until the
claim has been reduced to a liquidated
debt by a signed settlement agreement,
a court order or judgment, or a final
administrative determination.
89.5
Delegations of authority.
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89.7
Redelegation.
89.15 Regulations
documentation.
and
supporting
89.21
Administrative collection.
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89.21
records of the agency related to the
claim. Any reasonable costs associated
with the copying and inspection of the
records shall be borne by the debtor.
(Payment of cost is governed by 49 CFR
part 7, subpart I.) The debtor shall give
reasonable notice in advance to the
agency of the date on which it intends
to inspect and copy the records involved;
(f)(1) Except for debts established by
settlement agreement, court order or
judgment, or final administrative decision, the debtor may request review of
the validity or amount of a claim. To
do so, the debtor shall make a request
in writing for review of the claim prior
to it becoming delinquent. (See 4 CFR
101.2 for definition of when a debt is
considered delinquent.) The debtors
written response shall state the basis
for the dispute, and provide all factual
information, documents, citation to
authority, argument and any other
matters to be considered. If only part
of the claim is disputed, the undisputed
portion shall be paid by the delinquency date stated in the initial demand. During the period that the claim
is being reviewed, the amount of the
debt is owed, but the accrual of interest and accrual of time to delinquency
may be suspended on the disputed portion of the debt.
(2) Review of claims shall be based
upon the written record unless an oral
hearing is required by 4 CFR 102.3(c).
Upon completion of review, within 30
days whenever feasible, the Department shall advise the debtor whether
the debt has been found to be valid in
any amount, or that collection will be
terminated. If the claim is found to be
valid in any amount, the accrual of interest and time to delinquency shall
commence 15 days after mailing of the
notification of the review results. The
notification of the review may also include notice of a specific collection action to be undertaken if payment is not
received.
(g) The debtor may offer to make a
written agreement to pay the amount
of the claim. The acceptance of such an
agreement is discretionary with DOT.
If the debtor requests an installment
payment arrangement because a lump
sum payment would create a financial
hardship, DOT may agree to a written
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89.37
89.31 Use of professional debt collection agencies.
Debts over 90 days delinquent (see
89.21(b)(4)) may be turned over to professional debt collection agencies except for those debts owed by State and
local governments, other Federal agencies, current employees, and other
debts prohibited by statute from being
turned over to commercial collection
agencies.
89.33
[Reserved]
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89.39
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Department determination.
(a) Following review of the information, the Department notifies the debtor with a written decision that includes the supporting rationale.
(b) If the Department either sustains
or amends its determination, it shall
notify the debtor that the debt is being
referred to the IRS for offset against
the debtors Federal income tax refund.
If the Department determines that
there is no legally enforceable debt or
that full payment has been made, the
case will be closed.
89.47
Stay of offset.
PART
91INTERNATIONAL
AIR
TRANSPORTATION FAIR COMPETITIVE PRACTICES
Sec.
91.1 Purpose.
91.3 Investigations.
91.5 Findings and recommendations.
91.7 Determination
of
compensatory
charges.
91.9 Distribution of compensatory funds.
91.11 Standards.
91.13 Refunds.
AUTHORITY: Secs. 23, 88 Stat. 2103, 49
U.S.C. 1159a and 1159b, Pub. L. 93623.
SOURCE: 41 FR 54770, Dec. 15, 1976, unless
otherwise noted.
91.5
91.1 Purpose.
The purpose of this part is to prescribe the Secretarys role in executing
his responsibilities under sections 2
and 3 of the International Air Transportation Fair Competitive Practices
Act of 1974 to the end that U.S. flag air
carriers operating in foreign air transportation are protected from all forms
of discrimination or unfair competitive
practices and are compensated for excessive or otherwise discriminatory
charges levied by foreign governments
or other foreign entities for the use of
airport or airway property.
91.3 Investigations.
The Assistant Secretary for Policy,
Plans and International Affairs (Assistant Secretary), in coordination with
the General Counsel and the Federal
Aviation
Administrator
(Administrator), on complaint of any U.S. flag
air carrier or on their own initiative,
shall investigate: (a) Instances of alleged excessive or otherwise discriminatory user charges or (b) discriminatory or unfair competitive practices to
which U.S. flag air carriers are subjected by a foreign government or
other foreign entity. Excessive or otherwise discriminatory charges include,
but are not limited to, unreasonable
landing fees, unreasonable monopoly
ground handling fees and unreasonable
air navigation charges. Discriminatory
or unfair competitive practices include, but are not limited to, unreasonably differentiated fuel allocations,
cargo, charter or currency restrictions
and inferior monopoly ground handling
services.
91.5 Findings and recommendations.
(a) Upon finding that a foreign government or entity imposes excessive or
otherwise
discriminatory
charges
against U.S. flag air carriers or causes
such carriers to be subjected to discriminatory or unfair competitive
practices, the Assistant Secretary, in
coordination with the General Counsel
and the Administrator, shall determine
the extent of the discrimination or unfair competitive practices.
(b) Where the matter involves excessive
or
otherwise
discriminatory
charges, the Assistant Secretary shall
prepare a report and recommend that
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92.1
92.1
Purpose.
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92.3
92.3 Scope.
The provisions of this part are applicable to the indebtedness of a current
or former employee of DOT incurred
under any program administered by
DOT. The provisions of this part do not
apply to the collection of indebtedness
by authority other than 5 U.S.C. 5514.
92.5 Definitions.
As used in this part:
(a) Agency means an Executive Agency as defined by section 105 of title 5,
United States Code, the U.S. Postal
Service, the U.S. Postal Rate Commission, a Military Department as defined
by section 102 of title 5, United States
Code, an agency or court in the judicial
branch, an agency of the legislative
branch, and any other independent establishments which are entities of the
Federal Government. In DOT each operating element will act for the agency
in collecting debts under this rule.
(b) Creditor agency means the agency
to which the debt is owed.
(c) Debt means an amount owed to
the United States from sources which
include, but are not necessarily limited
to, erronerous payments made to employees, overpayments of benefits, salary or other allowances, loans insured
or guaranteed by the United States and
all other amounts due the United
States from fees, leases, rents, royalties, services, sales of real or personal
property,
overpayments,
penalties,
damages, interest, fines and forfeitures
(except those arising under the Uniform Code of Military Justice) and all
other similar sources. This term does
not include a Government claim arising under the Internal Revenue Code of
1954 (26 U.S.C. 19602) as amended; the
Social Security Act (42 U.S.C. 301
1397f); the tariff laws of the United
States; or any case where collection of
a debt by salary offset is explicitly pro-
vided for or prohibited by another statute (e.g., emergency and travel advances under 5 U.S.C. 5522, 5705 or 5724
and employee training expenses under 5
U.S.C. 4108).
(d) Debt Claim Form means the form
used by DOT when requesting that an
agency, other than DOT, assist in the
recovery of funds.
(e) Delinquent debt means a debt
which has not been paid by the date
specified in the agencys initial written
notification or applicable contractual
agreement, unless other satisfactory
payment arrangements have been made
by that date, or if, at any time thereafter, the debtor fails to satisfy obligations under a payment agreement with
the creditor agency.
(f) Disposable pay means that part of
current basic pay, special pay, incentive pay, retired pay, retainer pay, or
in the case of an employee not entitled
to basic pay, other authorized pay remaining after the deduction of any
amount required by law to be withheld.
(See 5 CFR 581.105 (b) through (f) for
items required by law to be withheld,
and therefore excluded from disposable
pay for the purposes of this regulation).
(g) DOT operating element (see 49 CFR
1.3) means a DOT Operating Administration including
(1) U.S. Coast Guard.
(2) Federal Aviation Administration.
(3) Federal Highway Administration.
(4) Federal Railroad Administration.
(5) National Highway Traffic Safety
Administration.
(6) Urban Mass Transportation Administration.
(7) St. Lawrence Seaway Development Corporation.
(8) Maritime Administration.
(9) Research and Special Program Administration.
(10) The Office of the Secretary.
(h) Employee means a current or
former employee of a Federal agency,
including a member of the Armed
Forces (including retired members) or
a Reserve of the Armed Forces (Reserves). However, employees paid from
non-appropriated funds are not included.
(i) FCCS means the Federal Claims
Collection Standards, 4 CFR Ch. II,
jointly published by the Department of
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92.9
the existence and amount of the debt;
and
(2) The terms of the repayment
schedule, if not previously established
by written agreement between the employee and the DOT creditor operating
element. (See 92.21(c) regarding copy
of written decision by hearing officer
describing method and amount of salary offset).
92.9 Exceptions to notice, hearing,
written response, and final decision.
(a) Exceptions. The procedural requirements of 5 U.S.C. 5514 do not
apply to recovery by way of retroactive
deductions for administrative adjustments associated with the Federal benefits program. In such cases the content of the notification to employees is
stated in 92.9(b).
(b) Simplified procedures to be followed.
In the event that a retroactive deduction from pay or allowances is required
to recover an insufficiency of deductions arising through normal processing delays, and those insufficient deductions did not occur in more than
four pay periods, rather than following
the specific procedures required by 5
U.S.C. 5514(a)(2), and set forth in 92.11
through 92.17 of this part, the DOT
creditor operating element shall issue
in advance of the collection a simplified notice to the employee that:
(1) Because of the employees election for changes in voluntary payroll
deduction, corresponding deductions
shall be imposed on the employees salary to cover the period between the effective date of the election and the
first regular withholding. The employee may dispute the amount of the
retroactive collection by notifying his
or her accounting or finance officer; or
(2) Due to a normal ministerial adjustment in pay or allowances which
could not be placed into effect immediately, future pay will be reduced to
permit the DOT creditor operating element to recover any excess pay or allowances received by the employee.
The employee may dispute the amount
of the retroactive collection by notifying his or her accounting or finance
officer.
(c) Limitation on exceptions. The exceptions described in paragraph (a) of
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92.11
this section shall not include a recovery required to be made for any reason
other than routine processing delays in
putting the change into effect, even if
the period of time for which the
amounts must be retroactively recovered is less than four pay periods. If
normal processing delays exceed four
pay periods, then the full procedures
prescribed under 5 U.S.C. 5514 and
92.11 through 92.17 of this part will be
extended to the employee.
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92.17
(b) The petition shall state the
grounds upon which the employee disputes the proposed collection of the alleged debt. The petition shall identify
and explain with reasonable specificity
the facts, evidence which, and witnesses who the employee believes support his or her position.
(c) The timely filing of a petition for
hearing shall stay any further collection proceedings. A decision by the administrative law judge or other hearing
official (see 92.5(j)) will be issued at
the earliest practical date, but no later
than 60 days after the filing of a petition for hearing, unless a delay is
granted at the request of the employee.
92.15 Request for hearing after time
expires.
The Department may accept late requests for a hearing if the employee
can show that delay in requesting a
hearing beyond the period provided in
the notice described in 92.11 of this
part was caused by circumstances beyond his or her control or because of
failure to receive notice of the time
limit (unless he or she was otherwise
aware of it) or because of new information.
92.17 Form of hearings and written
decisions.
(a) Hearings shall consist of informal
conferences before an administrative
law judge or other hearing official (see
92.5(j)) in which the employee and the
DOT creditor operating element are
given full opportunity to present evidence, witnesses, and argument. The
DOT operating element will maintain a
summary record of a hearing provided
under these procedures.
(b) Written decisions provided after a
request for hearing shall, at a minimum, summarize the evidence alleged
to substantiate the nature and origin
of the alleged debt; the administrative
law judges or other hearing officials
analysis, findings, and conclusions; the
amount and validity of the alleged
debt; and, where applicable, the repayment schedule.
(c) A copy of the administrative law
judges or other hearing officials final
decision shall be provided to the employee as well as the chief of the office
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92.35
States,
where
92.41(b)(2)(ii)).
appropriate
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92.37
92.39 Refunds.
(a) Amounts paid or deducted from
the account of a current or former employee of the United States Government, pursuant to this part, for a debt
which is found not owing to the United
States shall be promptly refunded to
the employee.
(b) Amounts which are waived shall,
after proper application, be promptly
returned after approval of the application.
92.41 Requesting recovery when the
Department is not the paying agency.
(a) Format of the request for recovery.
(1) Where the DOT operating element is
the creditor agency and another agency is the paying agency, the chief of
the accounting of finance office of the
appropriate DOT operating element
(see 92.5(g)) shall complete and certify
the Debt Claim Form (see Attachment 1), and attach a copy of the demand letter sent to the employee pursuant to 92.11 with a statement of the
employees response thereto, or, if a
hearing was held pursuant to 92.13, attach a copy of the decision of the administrative law judge or other hearing
official. The DOT creditor operating
element shall certify that the employee owes the debt, the amount and
basis of the debt, the date on which
payment is due, the date the Govern-
ments right to collect the debt accrued, and that the Departmental regulations implementing 5 U.S.C. 5514 have
been approved by the Office of Personnel Management.
(2) If the collection is to be made in
voluntary or involuntary installments
(see Attachment 1), the DOT creditor
operating element shall also advise the
paying agency of the amount of the installments and, if a date for the beginning of payments other than the next
officially established pay period is required, the date of the first installment.
(3) Unless the employee has voluntarily agreed to the salary offset in
writing or, in the absence of such
agreement, has signed a statement acknowledging receipt of the procedures
required by 5 U.S.C. 5514(a)(2) and the
writing or statement is attached to the
debt claim form, the DOT creditor operating element shall also indicate the
action(s) taken under 5 U.S.C. 5514 and
give the date(s) the action(s) were
taken.
(b) Submitting the request for recovery(1) Current employees. The DOT
creditor operating element shall submit the Debt Claim Form (Attachment 1) to the employees paying agency.
(2) Employees who are separating or
have separated(i) Employees who are in
the processs of separating. If the employee is in the process of separating,
the DOT creditor operating element
shall submit its debt claim (Attachment 1) to the employees paying agency for collection as provided in 92.31 of
this part. The paying agency is required to certify the total amount of
its collection made or to be made prior
to separation and notify the DOT creditor operating element and the employee as provided in 92.41 (b)(2)(iii). If
the paying agency is aware that the
employee is entitled to payments from
the Civil Service Retirement and Disability Fund, or other similar payments, it shall advise the DOT operating element and send a copy of the
debt claim and certification to the
agency responsible for making such
payments as notice that a debt is outstanding.
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92.45
ating element to review the debt upon
receiving the former paying agencys
notice of the employees transfer to
make sure the collection is resumed by
the new paying agency.
92.43 Requests for recovery when the
Department is the paying agency.
(a) Incomplete request for recovery. If
the request for recovery received by
the chief of the accounting or finance
office of the appropriate DOT operating
element is incomplete in any respect
(see 92.21(b)) including, but not limited to, the failure to certify in writing
that the employee owes the debt, the
amount and basis of the debt, the date
on which payment(s) is due, the date
the creditor agencys right to collect
the debt first accrued, and that the
creditor agencys regulations implementing 5 U.S.C. 5514 were approved by
OPM, the request shall be returned to
the creditor agency with a statement
of the deficiency. No action to implement salary offset may be initiated
until a complete request has been received.
(b) Complete request for recovery. If a
complete request for recovery is received by the chief of the accounting or
finance office of the appropriate DOT
operating element, a copy of the request and any supporting documentation shall be transmitted to the appropriate payroll office, and deductions
shall be scheduled to begin at the next
officially established pay interval. A
copy of the request and any supporting
documentation shall be provided to the
debtor, along with a notice of the date
deductions will begin.
(c) The DOT operating element may
not review the merits of the creditor
agencys determination with respect to
the amount or validity of the debt as
stated in the request for recovery.
Separate rules exist for general collection of debts owed the United States
under 31 U.S.C. 3711, 371618; 4 CFR Ch. II.
703
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Pt. 93
93.1
704
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EC02FE91.213</GPH>
Sec.
93.1 Issuance of aircraft allocations.
93.3 Reporting requirements.
95.1 Applicability.
(a) This part prescribes uniform regulations governing the formation and
use of advisory committees by the Office of the Secretary of Transportation,
the U.S. Coast Guard, the Federal
Aviation Administration, the Federal
Highway Administration, the Federal
Railroad Administration, the Urban
Mass Transportation Administration,
the National Highway Traffic Safety
Administration, and the St. Lawrence
Seaway Development Corporation. It
95.3
does not apply to the National Transportation Safety Board.
(b) This part applies to advisory committees formed or used by the organizations named in paragraph (a) of this
section. It also applies to those organizations whenever they affiliate with,
participate in, or use similar advisory
committees formed or used by other
departments or agencies of the Executive Branch of the Government, unless
specifically exempted under paragraph
(c) of this section. Advisory committees whose membership includes consultants and advisers are subject to
this part regardless of whether those
members are considered to be Government employees on the days they attend committee meetings.
(c) This part does not apply to:
(1) Any advisory committee the purpose, composition, and operation of
which is specified by statute, unless
and to the extent that statute authorizes the President to prescribe regulations for the committees formation
and use.
(2) Any advisory committee composed wholly of representatives of
State or local agencies or of charitable,
religious, educational, civic, social welfare, or similar nonprofit organizations.
(3) Any local, regional, or national
committee whose only function is to
disseminate information for public
agencies, or any local civil committee
whose primary function is to perform a
public service, other than giving advice
or making recommendations to the
Government.
[33 FR 467, Jan. 12, 1968, as amended by
Amdt. 952, 35 FR 5331, Mar. 31, 1970; Amdt.
953, 36 FR 431, Jan. 13, 1971]
95.3
Definitions.
705
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95.5
board,
commission,
council,
conference, panel, task force, or other
similar group, or any subcommittee or
subgroup thereof, which is not formed
within the Department, but only during the period it is being used by the
Department in the same manner as a
Government-formed
advisory
committee.
(b) Industry advisory committee includes any advisory committee composed predominately of members or
representatives of a single industry or
group of related industries, or any subdivision of a single industry, made on a
geographic, service, or product basis.
(c) Department means Department of
Transportation.
(d) Secretary means the Secretary of
Transportation.
95.5 Use of advisory committees generally.
(a) Advisory committees are formed
to provide a means of obtaining advice,
views, and recommendations of benefit
to the operations of the Government
from industrialists, businessmen, scientists, engineers, educators, and other
public and private citizens whose experience and talents would not otherwise
be available to the Department. An advisory committee may be used when its
counsel is desired on matters under
consideration by any part of the Department. Unless specifically authorized by law to the contrary, no advisory committee may be used for functions which are not solely advisory.
Determinations of action to be taken
with respect to matters upon which an
advisory committee advises or recommends may be made only by a fulltime, salaried officer or employee of
the Government.
(b) An advisory committee may be
established to serve the Department as
a whole, the Office of the Secretary,
any operating administration, any
combination of the Office of the Secretary and the operating administrations, or the operating administrations
collectively. However, no advisory
committee may be formed or used unless (1) the committee is specifically
authorized by law, or (2) the committee
is specifically approved, in writing, by
the Secretary or his designee, to be in
the public interest in connection with
committees:
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95.15
or reports showing the current or projected commercial operations of any
identified business enterprise.
[33 FR 467, Jan. 12, 1968, as amended by
Amdt. 951, 33 FR 6913, May 3, 1968]
95.13
Antitrust laws.
707
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Pt. 98
Administrative sanctions.
98.13
Judicial review.
Subpart AAdministration of
Enforcement Proceedings
98.1
Purpose.
98.2
Definitions.
708
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98.8
Secretary if applicable, in which the
alleged violation occurred.
98.7
Hearing.
Decision by examiner.
709
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98.9
98.9
Appeal.
(a) Within 30 working days after receipt of a decision issued under 98.8 or
98.9 of this part, either the Departmental counsel or the former employee
may appeal the decision to the Secretary.
(b) In making a decision on an appeal, the Secretary shall consider only
the evidence admitted during the prior
proceeding and contained in the record
of that proceeding.
(c) If the Secretary modifies or reverses the initial decision, the Secretary shall specify the findings of fact
and conclusions of law that are different from those of the examiner.
98.11
Subpart BAdministrative
Sanctions
98.12
Administrative sanctions.
Judicial review.
PART 99EMPLOYEE
RESPONSIBILITIES AND CONDUCT
Subpart AGeneral
Sec.
99.7351 Cross-reference to ethical conduct
standards and financial disclosure regulations.
Subparts BE [Reserved]
Subpart FResponsibilities of the Government Employee and Special Government Employee Following Departure
From Government Service
99.73580 Applicability.
99.73581 Post-employment duties and responsibilities.
APPENDIX A TO PART 99CATEGORIES OF FINANCIAL INTERESTS EXEMPTED FROM THE
PROHIBITIONS OF SECTION 208(A) OF TITLE
18, UNITED STATES CODE
APPENDIXES BD TO PART 99 [RESERVED]
APPENDIX E TO PART 99STATUTES REGULATING POST-EMPLOYMENT RESPONSIBILITIES OF GOVERNMENT AND SPECIAL GOVERNMENT EMPLOYEES
AUTHORITY: 49 U.S.C. 322; E.O. 12674, 54 FR
15159, 3 CFR, 1989 Comp., p. 215, as modified
by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp.,
p. 306.
710
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Subpart AGeneral
99.7351 Cross-reference to ethical
conduct standards and financial
disclosure regulations.
Employees of the Department of
Transportation are subject to the executive branch-wide Standards of Ethical
Conduct at 5 CFR part 2635, the Department of Transportation regulations at
5 CFR part 6001 which supplement the
executive branch-wide standards and
the executive branch-wide financial
disclosure regulations at 5 CFR part
2634.
Subparts BE [Reserved]
Subpart FResponsibilities of the
Government Employee and
Special
Government
Employee Following Departure
From Government Service
99.73580
Applicability.
99.73581 Post-employment
and responsibilities.
duties
The duties and obligations of a Government employee (or a special Government employee) do not end when
government service terminates by retirement, resignation, or for any other
reason. In fact the U.S. Code sets forth
specific criminal penalties for certain
activities by former Government employees. To summarize broadly, section
207 of title 18, U.S. Code, prohibits a
former Government employee from
acting as agent or attorney in various
types of proceedings and matters on behalf of a non-Government party when
the employee was involved in the subject matter while working for the Government. The duration and nature of
the prohibitions depend in part on the
depth of the employees involvement in
the matter while in Government service. Section 208 of the same title re-
711
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APPENDIXES BD TO PART 99
[RESERVED]
APPENDIX E TO PART 99STATUTES
REGULATING POST-EMPLOYMENT RESPONSIBILITIES OF GOVERNMENT AND
SPECIAL GOVERNMENT EMPLOYEES
NOTE: This appendix applies only to employees who terminated government service
before January 1, 1991.
207 Disqualification of former officers and
employees in matters connected with former
duties or offical responsibilities; disqualification of partners.
(a) Whoever, having been an officer or employee of the executive branch of the United
States Government, of any independent
agency of the United States, or of the District of Columbia, including a special Government employee, after his employment has
ceased, knowingly acts as agent or attorney
for anyone other than the United States in
connection with any judicial or other proceeding, application, request for a ruling or
other determination, contract, claim, controversy, charge, accusation, arrest, or other
particular matter involving a specific party
or parties in which the United States is a
party or has a direct and substantial interest
and in which he participated personally and
substantially as an officer or employee,
through decision, approval, disapproval, recommendation, the rendering of advice, investigation, or otherwise, while so employed, or
(b) Whoever, having been so employed,
within one year after his employment has
ceased, appears personally before any court
or department or agency of the Government
as agent, or attorney for, anyone other than
the United States in connection with any
proceeding, application, request for a ruling
or other determination, contract, claim, controversy, charge, accusation, arrest, or other
particular matter involving a specific party
or parties in which the United States is a
party or directly and substantially interested, and which was under his official responsibility as an officer or employee of the
Government at any time within a period of
one year prior to the termination of such responsibility:
Shall be fined not more than $10,000 or imprisoned for not more than two years, or
both: Provided, That nothing in subsection
(a) or (b) prevents a former officer or employee, including a former special Government employee, with outstanding scientific
or technological qualifications from acting
as attorney or agent or appearing personally
in connection with a particular matter in a
scientific or technological field if the head of
the department or agency concerned with
the matter shall make a certification in
writing, published in the FEDERAL REGISTER,
that the national interest would be served by
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Subtitle A, App.
APPENDIX TO SUBTITLE AUNITED
STATES RAILWAY ASSOCIATIONEMPLOYEE RESPONSIBILITIES AND CONDUCT
SUBPART AGENERAL
Sec.
1 Purpose and policy.
3 Definitions.
5 Applicability.
SUBPART BETHICAL AND OTHER CONDUCT
AND RESPONSIBILITIES OF EMPLOYEES
7 General.
9 Gifts, entertainment, and favors.
11 Outside employment and other activities.
13 Financial interests.
15 Conflicts of interest.
17 Disqualification arising from personal financial interests.
19 Use of Association property or official
title.
21 Misuse of information.
23 Indebtedness.
25 Miscellaneous provisions.
SUBPART CSTATEMENTS OF EMPLOYMENT
AND FINANCIAL INTEREST
31
33
35
37
39
41
43
713
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Subtitle A, App.
714
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Subtitle A, App.
approval, recommendation, the rendering of
advice, investigation or otherwise, in a judicial or other proceeding, application, request
for a ruling or other determination, contract, claim controversy, charge, accusation,
or other particular matter in which, to his
knowledge, he, his spouse, minor child, a
blood relative who is a resident of the employees household, partner, organization in
which he is serving as officer, director, trustee, partner or employee, or any person or organization with whom he is negotiating or
has any arrangement concerning prospective
employment, has a financial interest, unless
he shall cause the financial interest involved
to be divested, or request a determination of
the propriety of his participation in any
matter by informing the General Counsel of
the nature and circumstances of the matter
and financial interest involved.
(b) After examining the information submitted the General Counsel may:
(1) Relieve the employee from participation in the matter and, if possible, reassign
it to another employee who is not subordinate to the relieved employee;
(2) Approve the employees participation
upon determining in writing that the interest involved is not so substantial as to be
likely to affect the integrity of the services
the Association may expect from the employee;
(3) Recommend the reassignment of the
employee; or
(4) If none of these alternatives is feasible,
direct the employee to cause the financial
interest to be divested so that it no longer
comes within the scope of this section.
(c) In any case in which the General Counsel has reason to believe that an employee
may have an interest that would be disqualifying under this section, he shall discuss the
matter with the employee. If he finds that
the interest exists, he may take any of the
actions stated in paragraph (b) of this section.
(d) In any case in which the employee is
dissatisfied with the General Counsels decision, the employee may appeal the matter to
the Chairman of the Association for reconsideration and final determination of the appropriate action.
(e) Information concerning categories of financial interests which are exempted from
the prohibitions of 13(a), 15, and paragraph
(a) of this section as being too remote or too
inconsequential to affect the integrity of an
employees interest in a matter, are set forth
in Appendix 1.
SEC. 19. Use of Association property or official
title. (a) An employee may not, directly or indirectly, use or allow the use of Association
property of any kind, including property
leased to the Association, for other than an
officially approved activity. Each employee
has a positive duty to protect and conserve
Association property, including equipment,
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Subtitle A, App.
(b) Any employee who believes that his position has been improperly included as one
requiring the submission of a statement of
employment and financial interest is entitled to have that inclusion reviewed by the
General Counsel.
(c) Any employee in a position which
meets the criteria in paragraph (a) of this
section may be excluded from the reporting
requirements of this section if the General
Counsel determines that the duties of the position are at such a level of responsibility
that the submission of a statement is not
necessary because of the degree of supervision and review and the remote or inconsequential effect on the integrity of the Association.
SEC. 33. Time and place for submission of employee statements. Each employee who is subject to the reporting requirements of sec. 31
shall submit his employment and financial
interest statement to the General Counsel
within 30 days after entering the employ of
the Association.
SEC. 35. Supplementary statements. (a) Each
employee shall, not later than July 31 of
each year, file a supplementary statement,
showing, as of June 30 of that year, any
change in, or addition to, the information
contained in his statement of employment
and financial interest. If changes or additions have not occurred, a negative report is
required.
(b) Compliance with the reporting requirements of this subpart is not an alternative to
observance of the conflict-of-interest provisions of subpart B of these regulations, but is
to facilitate uniform compliance with, and
the orderly administration of subpart B.
SEC. 37. Committee on Commerce, Information
not known by employee. If any information required to be included on a statement of employment and financial interest or a supplementary statement, including any holding
placed in trust, is not known to the employee but is known to another person, the
employee shall request that other person to
submit the information on his behalf, and
the employee shall so notify the General
Counsel.
SEC. 39. Information not required. An employee is not required to submit on a statement of employment and financial interest
or supplementary statement any information relating to his connection with, or interest in, a professional society, or a charitable, religious, social, fraternal, recreational, public service, civic, or political
organization, or a similar organization not
conducted as a business enterprise. For the
purposes of this section, educational and
other institutions doing research and development or related work involving grants of
money from or contracts with the Association are considered to be business enterprises and are required to be included in the
716
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Subtitle A, App.
tion, contract, claim, controversy, charge,
accusation, arrest, or other particular matter involving a specific party or parties, in
which the Association is a party or directly
and substantially interested, and which was
under his official responsibility as an officer
or employee of the Association at any time
within a period of one year prior to the termination of such responsibility.
SEC. 55. Employee with outstanding scientific
or technological qualifications. A former employee with outstanding scientific or technological qualifications may act as attorney or
agent or appear personally in connection
with a particular matter in a scientific or
technological field if the General Counsel
certifies in writing, in advance, that the public interest would be served by such action or
appearance.
SEC. 57. Partner of employee. A partner of an
employee of the Association may not act as
agent or attorney for anyone other than the
Association, in connection with any judicial
or other proceeding, application, request for
a ruling or other determination, contract,
claim, controversy, charge, accusation, arrest, or other particular matter in which the
Association is a party or has a direct and
substantial interest and in which such employee of the Association participates personally and substantially as an employee
through decision, approval, disapproval, recommendation, the rendering of advice, investigation or otherwise, or which is the subject
of his official responsibility.
APPENDIX 1CATEGORIES OF FINANCIAL INTERESTS EXEMPTED FROM THE PROHIBITIONS
OF SECTIONS 13(A), 15, AND 17(A)
I. (a) The following are exempted from the
prohibitions of sections 13(a), 15, and 17(a),
because they are too remote or too inconsequential to affect the integrity of an employees services in any matter in which he
may act in his official capacity.
(1) Any holding in a widely held mutual
fund, or regulated investment company,
which does not specialize in the transportation industry.
(2) Ownership of shares of stock and of corporate bonds or other corporate securities, if
the current aggregate market value of the
stocks and other securities so owned in any
single corporation is less than $10,000 and is
less than one percent of the outstanding
stock of the organization concerned, and if
the employee, his spouse, or minor children
are not active in the management of the organization and have no other connection
with or interest in it.
(3) Continued participation in a bona fide
pension, retirement, deferred compensation,
group life, health, or accident insurance plan
or other employee welfare or benefit plan
that is maintained by a business or nonprofit
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Subtitle A, App.
organization by which the employee was formerly employed, to the extent that the employees rights in the plans are vested and
require no additional services by him. To the
extent the welfare or benefit plan is a profit
sharing or stock bonus plan, this exemption
does not apply.
(b) Notwithstanding paragraph 1(a)(2), the
interest of an employee, whose position is
listed in section II of this appendix, shall not
be exempt from the prohibitions of sections
13(a), 15, and 17(a), with respect to any stock
or other security holding in an organization
to which he is assigned, or for which he has
specific responsibility as a part of his regular
718
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FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and
Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually.
719
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I
II
III
IV
VI
VII
VIII
IX
XI
XII
XIII
XIV
XV
XVIII
XX
XXII
XXIII
XXIV
XXV
XXVI
XXVII
XXVIII
721
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Chap.
XXX
XXXI
XXXII
XXXIII
XXXV
XXXVII
LVIII
Title 4Accounts
I
II
XIV
Federal Labor Relations Authority, General Counsel of the Federal Labor Relations Authority and Federal Service Impasses
Panel (Parts 24002499)
XV
XVI
XXI
XXII
XXIII
XXIV
XXV
XXVI
XXVIII
XXIX
XXX
XXXI
XXXIII
722
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Chap.
XXXIV
XXXV
XL
XLI
XLII
XLIII
XLV
XLVI
XLVII
XLVIII
XLIX
L
LII
LIII
LIV
LV
LVI
LVII
LVIII
LIX
LX
LXI
LXII
LXIII
LXIV
LXV
LXVI
LXVII
LXVIII
LXIX
LXX
LXXI
LXXIII
LXXIV
LXXVI
LXXVII
LXXX
LXXXII
723
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Chap.
XCVII
Department of Homeland Security Human Resources Management System (Department of Homeland SecurityOffice of
Personnel Management) (Parts 97009799)
XCIX
Title 7Agriculture
SUBTITLE AOFFICE OF THE SECRETARY OF AGRICULTURE (PARTS
026)
SUBTITLE BREGULATIONS OF THE DEPARTMENT OF AGRICULTURE
I
Agricultural Marketing Service (Standards, Inspections, Marketing Practices), Department of Agriculture (Parts 27209)
II
III
Animal and Plant Health Inspection Service, Department of Agriculture (Parts 300399)
IV
Agricultural Research
(Parts 500599)
Service,
Department
of
Agriculture
VI
VII
VIII
Grain Inspection, Packers and Stockyards Administration (Federal Grain Inspection Service), Department of Agriculture
(Parts 800899)
IX
Agricultural Marketing Service (Marketing Agreements and Orders; Fruits, Vegetables, Nuts), Department of Agriculture
(Parts 900999)
Agricultural Marketing Service (Marketing Agreements and Orders; Milk), Department of Agriculture (Parts 10001199)
XI
Agricultural Marketing Service (Marketing Agreements and Orders; Miscellaneous Commodities), Department of Agriculture
(Parts 12001299)
XIV
XV
XVI
XVII
724
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Chap.
XVIII
XX
Title 7AgricultureContinued
Rural Housing Service, Rural Business-Cooperative Service,
Rural Utilities Service, and Farm Service Agency, Department of Agriculture (Parts 18002099)
Local Television Loan Guarantee Board (Parts 22002299)
XXVI
XXVII
XXVIII
XXIX
Office of Energy Policy and New Uses, Department of Agriculture (Parts 29002999)
XXX
XXXI
XXXII
XXXIII
XXXIV
XXXV
XXXVI
XXXVII
XXXVIII
XLI
[Reserved]
XLII
I
II
Animal and Plant Health Inspection Service, Department of Agriculture (Parts 1199)
Grain Inspection, Packers and Stockyards Administration
(Packers and Stockyards Programs), Department of Agriculture (Parts 200299)
725
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Chap.
III
Title 10Energy
I
II
III
X
XIII
XVII
XVIII
XVIII
726
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Chap.
III
IV
II
III
Commercial Space Transportation, Federal Aviation Administration, Department of Transportation (Parts 400499)
VI
II
III
IV
VII
VIII
IX
XI
XIII
XIV
XX
XXIII
727
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Chap.
I
II
III
VI
VIII
XIII
III
IV
II
III
IV
VI
VII
VIII
IX
728
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Chap.
II
III
III
IV
V
VII
IX
X
XI
XII
XIII
XIV
XV
XVI
XVII
Title 23Highways
I
II
III
729
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II
III
IV
VI
VII
VIII
IX
X
XII
XV
XX
XXIV
XXV
Office
of
Assistant
Secretary
for
Housing-Federal
HousingCommissioner, Department of Housing and Urban Development (Parts 200299)
Government National Mortgage Association, Department of
Housing and Urban Development (Parts 300399)
Office of Housing and Office of Multifamily Housing Assistance
Restructuring, Department of Housing and Urban Development (Parts 400499)
Office of Assistant Secretary for Community Planning and Development, Department of Housing and Urban Development
(Parts 500599)
Office of Assistant Secretary for Community Planning and Development, Department of Housing and Urban Development
(Parts 600699) [Reserved]
Office of the Secretary, Department of Housing and Urban Development (Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700799)
Office of the Assistant Secretary for HousingFederal Housing
Commissioner, Department of Housing and Urban Development (Section 8 Housing Assistance Programs, Section 202 Direct Loan Program, Section 202 Supportive Housing for the Elderly Program and Section 811 Supportive Housing for Persons
With Disabilities Program) (Parts 800899)
Office of Assistant Secretary for Public and Indian Housing, Department of Housing and Urban Development (Parts 9001699)
Office of Assistant Secretary for HousingFederal Housing
Commissioner, Department of Housing and Urban Development (Interstate Land Sales Registration Program) (Parts
17001799)
Office of Inspector General, Department of Housing and Urban
Development (Parts 20002099)
Emergency Mortgage Insurance and Loan Programs, Department of Housing and Urban Development (Parts 27002799)
Office of Assistant Secretary for HousingFederal Housing
Commissioner, Department of Housing and Urban Development (Parts 32003899)
Board of Directors of the HOPE for Homeowners Program (Parts
40004099)
Neighborhood Reinvestment Corporation (Parts 41004199)
Title 25Indians
I
II
III
IV
V
730
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Title 25IndiansContinued
Chap.
VI
VII
Title 29Labor
I
II
III
IV
V
IX
X
XII
XIV
731
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Title 29LaborContinued
Chap.
XVII
XX
XXV
XXVII
XL
I
II
IV
V
VI
VII
VIII
IX
X
I
V
VI
732
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Chap.
VII
XII
XVI
XVII
XVIII
XIX
XX
XXI
XXIV
XXVII
XXVIII
Title 34Education
SUBTITLE AOFFICE OF THE SECRETARY, DEPARTMENT OF EDUCATION (PARTS 199)
II
III
Office of Special Education and Rehabilitative Services, Department of Education (Parts 300399)
IV
VI
VII
XI
XII
733
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Title 35 [Reserved]
Chap.
II
III
IV
VI
[Reserved]
VII
VIII
IX
XI
XII
XV
XVI
Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation (Parts 16001699)
III
IV
734
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Chap.
VI
VII
51
60
Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor (Parts 60160999)
61
62100
[Reserved]
SUBTITLE CFEDERAL PROPERTY MANAGEMENT REGULATIONS
SYSTEM
101
102
103104
[Reserved]
105
109
114
115
128
129200
[Reserved]
SUBTITLE DOTHER PROVISIONS RELATING TO PROPERTY MANAGEMENT [RESERVED]
300
301
302
303
304
Public Health Service, Department of Health and Human Services (Parts 1199)
Centers for Medicare & Medicaid Services, Department of Health
and Human Services (Parts 400499)
735
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Chap.
I
II
III
II
III
IV
V
VI
VII
VIII
X
XI
XII
XIII
736
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Chap.
XVI
XVII
XVIII
XXI
XXIII
XXIV
XXV
Title 46Shipping
I
II
III
IV
Title 47Telecommunication
I
II
III
IV
1
2
3
4
5
6
7
8
9
10
12
13
14
737
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15
16
17
18
19
20
21
23
24
25
28
29
30
34
51
52
53
54
57
61
63
99
Title 49Transportation
II
III
IV
738
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Chap.
V
VI
VII
VIII
X
XI
XII
Title 49TransportationContinued
National Highway Traffic Safety Administration, Department of
Transportation (Parts 500599)
Federal Transit Administration, Department of Transportation
(Parts 600699)
National Railroad Passenger Corporation (AMTRAK) (Parts
700799)
National Transportation Safety Board (Parts 800999)
Surface Transportation Board, Department of Transportation
(Parts 10001399)
Research and Innovative Technology Administration, Department of Transportation [Reserved]
Transportation Security Administration, Department of Homeland Security (Parts 15001699)
III
IV
V
VI
United States Fish and Wildlife Service, Department of the Interior (Parts 1199)
National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce (Parts 200
299)
International Fishing and Related Activities (Parts 300399)
Joint Regulations (United States Fish and Wildlife Service, Department of the Interior and National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce); Endangered Species Committee Regulations (Parts 400499)
Marine Mammal Commission (Parts 500599)
Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts
600699)
Subject/Agency Index
List of Agency Prepared Indexes
Parallel Tables of Statutory Authorities and Rules
List of CFR Titles, Chapters, Subchapters, and Parts
Alphabetical List of Agencies Appearing in the CFR
739
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Agency
1, I
1, III
32, I
36, VIII
22, XV
48, 57
22, II
48, 7
7, I, IX, X, XI
7, V
2, IV; 5, LXXIII
7, I, IX, X, XI
7, V
7, III; 9, I
7, XXX
7, XIV
7, XXXVII
2, IX; 7, XXIX
7, XXXI
7, VII, XVIII
48, 4
7, IV
7, II
9, III
7, XV
36, II
7, VIII; 9, II
7, XXVII
7, XXVI
7, XLI
7, XXXVI
7, XXXIV
7, VI
7, XXVIII
7, XXXII
7, XVIII, XLII, L
7, XLII
7, XVIII, XXXV, L
7, XVI
7, XVII, XVIII, XLII, L
7, Subtitle A
7, XXXIII
7, XXXVIII
32, VII
48, 53
14, VI
27, I
27, II
49, VII
36, IV
25, VII
7, III; 9, I
5, IX
741
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Agency
36, XI
45, XXIII
5, XI
32, V
33, II; 36, III
48, 51
34, V
41, 51
22, V
48, 19
30, II
15, I
42, IV
32, XIX
7, XXX
45, III
45, II, III, IV, X
5, LXVIII; 45, VII
34, I
5, LXX
33,
46,
44,
15,
37,
15,
13,
44,
48,
15,
15,
15,
15,
50,
15,
15,
I; 46, I; 49, IV
III
IV; 50, VI
I
V
VIII
III
IV
13
IV
VII
III; 19, III
II
II, IV
IX; 50, II, III, IV, VI
XXIII; 47, III, IV
15, IX
37, I
37, IV
15, Subtitle A
37, V
15, XI
37, IV
14, III
7, XIV
5, XLI; 17, I
24, V, VI
45, X
12, I
29, IX
12, X
5, LXXI; 16, II
37, II
37, III
2, XXII; 45, XII, XXV
48, 99
40, V
28, VIII
19, I
32, I
742
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Agency
Defense Department
Advanced Research Projects Agency
Air Force Department
Army Department
743
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Agency
744
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223214
Agency
22, XIV
15, IV
36, II
5, LVII; 41, 105
48, 61
48, 5
41, 102
41, 101
41, Subtitle F
41, 300
41, 304
41, 303
41, 302
41, 301
30, IV
4, I
5, XVI
24, III
7, VIII; 9, II
45, XVIII
2, III; 5, XLV; 45,
Subtitle A,
42, IV
45, III
45, II, III, IV, X
45, X
45, II
48, 3
21, I
45, XIII
25, V
42, V
42, I
45, IV
2, XXX; 6, I
33, I; 46, I; 49, IV
46, III
19, I
44, I
5, XCVII
19, IV
8, I
49, XII
24, XXIV
2, XXIV; 5, LXV; 24,
Subtitle B
24, V, VI
24,
48,
12,
24,
24,
I
24
XVII
III
II, VIII, X, XX
24, IV
24,
24,
24,
24,
XII
IX
Subtitle A, VII
II, VIII, X, XX
24, IV
45, XIII
19, IV
745
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Agency
8, I
8, V
28, VII
25, I, V
25, VI
25, II
25, V
15, VII
7, XXVII
32, XX
7, XXVI
42, V
24, XII
22, XVII
5, LXIII; 22, X
25, VII
30, II
50, IV
48, 14
41, 114
50, I, IV
30, IV
25, I, V
25, VI
25, II
43, II
25, III
36, I
30, XII
43, I
2, XIV; 43, Subtitle A
30, VII
26, I
22, XI
22, II
48, 7
22, XII
22, IV
5, V
15, III; 19, III
19, II
5, XL
31, VIII
45, XXIV
22, XVI
20, VIII
2, XXVII; 5, XXVIII; 28,
I, XI; 40, IV
27, II
21, II
48, 28
31, IX
28, III
45, V
8, V
28, VI
28, V
41, 128
5, XLII
29, XXV
746
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Agency
20,
20,
20,
48,
41,
41,
29,
30,
29,
20,
41,
29,
41,
IV
V
VI
29
60
50
II, IV
I
XVII
VII
50
Subtitle A
61; 20, IX
29, V
20, I
29, II, IV
43, II
45, XVI
36, VII
37, II
37, III
7, XX
5, III, LXXVII; 14, VI;
48, 99
50, V
46, II
5, II, LXIV
32, XXVII
22, XIII
30, I
15, XIV
1, IV
31, I
36, XVI
2, XXXI
2, XVIII; 5, LIX; 14, V
48, 18
7, XLI
7, XXXVI
45, XII, XXV
2, XXVI; 5, LXVI; 36,
XII
32, XX
1, IV
1, IV
45, XVII
34, XII
32, XVIII
12, VII
28, IX
21, III
2, XXXII
2, XXXIII
45, XI
23, II, III; 47, VI; 49, V
32, I
25, III
34, XI
7, XXXIV
15, II
32, XVII
5, LXI; 29, I
50, II, IV
29, X
15, IX; 50, II, III, IV, VI
747
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Agency
36, I
29, III
49, VII
2, XXV; 5, XLIII; 45, VI
48, 25
32, XXI
47, II
15, XXIII; 47, III, IV
49, VIII
7, VI
30, XII
25, IV
32, VI
48, 52
24, XXV
10, XVIII
2, XX; 5, XLVIII; 10, I
48, 20
29, XVII
29, XX
28, VI
20, VII
36, XV
7, XXVIII
5, XXXIII; 22, VII
37, I
41, 304
41, 303
22, III
36, IX
29, XL
5, I, XXXV; 45, VIII
5, XCIX
5, XCVII
48, 17
48, 21
48, 16
49, I
5, XLVI; 39, III
5, LX; 39, I
34, VI
1, IV
3
36, X
28, V
7, XXXII
37, IV
41, 50
24, IX
42, I
20, II
43, I
4, II
45, IV
41, 302
49, XI
7, XVIII, XLII, L
7, XLII
7, XVIII, XXXV, L
748
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Agency
7, XVI
7, XVII, XVIII, XLII, L
33, IV
32, XXIV
47, II
31, IV
5, XXXIV; 17, II
32, XVI
2, XXVII; 13, I
36, V
2, XXIII; 20, III; 48, 23
5, XI
5, VIII
34, III
5, LXXXVII
2, VI; 22, I; 28, XI
48, 6
30, VII
49, X
18, VIII
15, XI
37, IV
37, V
5, LXIX; 18, XIII
12, V
15, XX
2, XII; 5, L
14, III
48, 63
44, IV
48, 12
14, I
23, I, II
49, III
49, II
49, VI
46, II
23, II, III; 47, IV; 49, V
49, I
33, IV
14, II; 49, Subtitle A
49, X
49, XI
7, XXXIII
49, XII
49, XI
41, 301
5, XXI; 12, XV; 17, IV;
31, IX
27, I
12, XVIII
12, I
19, I
31, VI
48, 10
31, IX
31, VII
31, X
31, II
31, V
26, I
31, VIII
31, I
31, IV
31, Subtitle A
12, V
749
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Agency
45, XVIII
22, IV
22, XI
43, III
2, VIII; 38, I
48, 8
41, 61; 20, IX
32, XXVIII
34, IV
29, V
18, VI
20, I
7, XXXVIII
750
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2001
49 CFRContinued
49 CFR
66 FR
Page
751
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Page
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49 CFRContinued
66 FR
Page
2002
49 CFR
67 FR
Page
Subtitle A
Chapter I Policy statement .......... 31974
1 Authority citation revised ........ 11582,
47467
1.2 (l) correctly added ...................... 629
1.26 (a)(3) through (12) revised ....... 47467
1.46 (uuu) added ............................ 15126
(rr) revised; (vvv) added ................54745
1.48 (oo) added............................... 52419
1.66 (ee) added ............................... 72384
1.73 (d)(2) revised .......................... 11582
7.2 Introductory text amended...... 54746
7.15 (f), (g) and (h) redesignated as
(g), (h) and (i); new (f) added ....... 54746
10.5 Amended; (k) added ................ 54746
40.45 (a) correctly revised; CFR
correction.................................. 4677
40.245 Revised ............................... 61522
40.267 Introductory text and paragraph (a) revised ....................... 61522
2003
49 CFR
68 FR
Page
Subtitle A
1 Authority citation revised ........ 10989,
34549, 35184, 36497
1.2 (a) and (l) removed; (b)
through (k) redesignated as (a)
through (j); new (e) revised ........ 34549
1.3 (b)(1) and (12) removed; (b)(2)
through (11) redesignated as
new (b)(1) through (10); new
(b)(5) revised ............................. 34549
1.4 (b) and (n) removed; (c)
through (m) redesignated as
new (b) through (l); new (f) introductory text revised............. 34549
1.22 (d) revised .............................. 34549
1.23 (c) revised .............................. 34549
1.26 (a)(2) through (12) removed;
new
(a)(2)
through
(11)
added........................................ 35184
1.44 (e)(8) revised; (m) removed;
(n) through (r) redesignated as
new (m) through (q)................... 34549
(o) revised ....................................36497
1.45 (c)(1)(i) removed; (c)(1)(ii)
through (ix) redesignated as
new (c)(1)(i) through (viii); new
(c)(1)(iv) revised........................ 34549
1.46 Removed................................ 34549
1.48 (c)(19)(i) revised ..................... 34549
1.51 Heading and introductory
text revised .............................. 34550
1.57 (e) and (f) removed; (g)
through (s) redesignated as (e)
through (q) ............................... 34550
1.58 (i) added ................................. 12834
1.59 (b)(8) revised .......................... 34550
1.65 (b)(2) and (c)(2) removed;
(b)(3), (4), (c)(3) and (4) redesignated as new (b)(2), (3), (c)(2)
and (3)....................................... 34550
1.66 (ff) added ................................ 16216
(aa)(1) revised; (bb) and (cc) removed; (dd) through (ff) redesignated as new (bb) through
(dd) ...........................................34550
(aa)(1) through (6) redesignated
as (aa)(2) through (7); new
(aa)(1) added; new (aa)(2) revised .........................................36497
1.68 Added .................................... 10989
1.70 (k) removed; (l) through (v)
redesignated
as
new
(k)
through (u) ............................... 34550
1.73 (d)(2) and (e) revised................ 10989
1 Appendix A amended .................. 34550
752
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49 CFRContinued
68 FR
Page
Subtitle AContinued
21 Authority citation revised........ 51389
21.3 (a) introductory text, (2), (3)
and concluding text amended ............................................. 51389
21.5 (b)(1) introductory text, (6)
and (c)(1) amended .................... 51389
21.7 (a)(1), (2) and (b) amended; (b)
heading revised ........................ 51389
21.9 (b) and (d) amended................. 51389
21.15 (e) amended .......................... 51389
21.17 (f) amended........................... 51389
21.21 (a) amended .......................... 51389
21.23 (d) and (f) amended; (e) revised......................................... 51389
26 Nomenclature change............... 35553
26.5 Amended................................ 35553
26.29 Revised ................................ 35553
26.37 (b) revised............................. 35554
26.55 (d)(5) and (h) revised.............. 35554
26.61 (c) revised ............................. 35554
26.63 (a) revised............................. 35554
26.67 (a)(2)
revised;
(c)
removed ...................................... 35554
26.73 (h) revised; new (i) added ....... 35555
26.83 (c)(7) introductory text and
(i) revised ................................. 35555
26.84 Added ................................... 35555
26.85 Redesignated as 26.86; new
26.85 added ................................ 35555
26.86 Redesignated from 26.85; (b)
and (c) redesignated as (c) and
(d); new (b) added ...................... 35555
26.87 (h), (i) and (j) redesignated
as (i), (j), and (k); new (h)
added........................................ 35556
26.89 (a)(1) and (f)(7) revised........... 35556
26.109 (a)(2) revised ....................... 35556
26 Appendices B and E amended;
Appendix F added...................... 35556
27 Heading revised ........................ 51390
27.3 (a) amended............................ 51390
27.5 Amended................................ 51390
27.7 (a), (b)(1)(v), (3), (4)(ii), (5)(i),
(6) and (d) amended; (d) heading
revised ..................................... 51390
27.9 (a) and (b)(4) amended............. 51390
27.11 (a)(3)(i) and (ii) amended ....... 51390
27.7127.77 (Subpart B) Heading
revised ..................................... 51391
27.71 (b) amended .......................... 51391
27.77 Amended .............................. 51391
27.121 (b) and (d) amended.............. 51391
27.125 (b)(2) amended..................... 51391
27.127 (f) amended ......................... 51391
27.129 (e) amended......................... 51391
29 Revised ........................... 66544, 66644
49 CFRContinued
2004
49 CFR
69 FR
Page
753
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Subtitle AContinued
29.120 (c) added.............................. 66645
29.440 Added ................................. 66645
29.520 (c)(4) amended; (d) added...... 66645
29.935 (b) added ............................. 66645
29.1010 (b) added ............................ 66645
32 Added .............................. 66557, 66645
32.510 (c) amended......................... 66646
32.605 (a)(2) amended..................... 66646
40.26 Added ................................... 43952
40.67 (a) revised; interim ............... 31626
40.97 (a)(7) and (e) revised; interim........................................ 31626
40.131 (a) amended; interim ........... 31626
40.145 (a) and (e)(2) revised; interim........................................ 31626
40.155 (a) amended; interim ........... 31626
40.187 (a)(3) added; interim ............ 31626
40.191 (a)(6) revised; interim.......... 31626
40.197 Revised; interim ................. 31626
40 Appendix H added ..................... 43952
71 Authority citation revised........ 49712
71.5 (a) revised; eff. 102603 ........... 43339
Regulation at 68 FR 43339 withdrawn .......................................49373
71.7 (a) revised; eff. 102603 ........... 43336
(a) correctly revised .....................49373
(b) revised ....................................61372
71.14 Added ................................... 49712
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69 FR
Page
Subtitle AContinued
40.91 (a) through (e) revised; (f) removed; interim ......................... 64867
40.93 Revised; interim ................... 64867
40.97 (a)(2), (6), (7), (e)(1) and (2) revised; (e)(3) added; interim ........ 64867
40.131 (a) amended; interim ........... 64867
40.145 (a) and (e)(2) revised; interim........................................ 64867
40.155 (a) and (c) revised; interim........................................ 64867
40.197 (b)(1) amended; interim ....... 64868
40.281 (a)(5) revised ......................... 3022
2005
49 CFR
70 FR
Page
Subtitle A
199 (Subtitle A) Advisory committee terminated.................... 30378
1 Authority citation revised ... 7670, 8300
1.2 (g) and (i) revised ....................... 8300
1.3 (b)(7) and (9) revised................... 8300
1.4 (h) and (k) revised ...................... 8300
1.22 (a) revised................................ 8300
1.23 (o) revised................................ 7670
(b) revised......................................8300
1.45 (a)(19) added............................. 2819
1.46 Added ...................................... 8300
1.53 (e) removed.............................. 7670
Revised .........................................8301
1.57 (t) added .................................. 2819
1.69 (c) added .................................. 2819
Revised .........................................7670
1.71 Removed ................................. 8302
1.74 Heading and introductory
text revised ................................ 8302
10 Policy statement...................... 70548
11.101 (i) and footnote 1 amended ............................................. 36328
11.103 (a) and (b)(3) amended;
OMB number ............................ 36328
11.109 OMB number ....................... 36328
11.110 (a) amended......................... 36328
11.113 OMB number ....................... 36328
11.115 OMB number ....................... 36328
11.116 OMB number ....................... 36328
11.117 OMB number ....................... 36328
15.11 (a) amended............................ 1381
23 Revised .................................... 14508
24 Revised ....................................... 611
24.102 (d) and (j) correctly amended ............................................. 22611
24.103 (b) correctly amended ......... 22611
24.105 (c) correctly amended.......... 22611
24.301 (g)(14)(i) correctly amended ............................................. 22611
49 CFRContinued
2006
49 CFR
71 FR
Page
Subtitle A
1 Authority citation revised ........ 11541,
30830
1.4 (f) revised ................................ 30830
1.23 (h) through (q) redesignated
as (i) through (r); new (h)
added........................................ 30830
1.45 (b) revised .............................. 30830
1.46 (c), (d), (e), (i), (l) and (m) revised......................................... 30830
(l) and (m) correctly added............35558
(n) added ......................................52753
1.47 (j)(1) revised; (k) removed ....... 52753
1.48 Revised .................................. 30830
1.49 (ee) revised; (mm) and (nn)
added........................................ 30832
(s) revised ....................................52753
1.50 (o) added ................................ 11541
(p) added ......................................30832
1.51 (a) and (b) revised; (f), (g), (h)
and (j) through (n) removed; (i)
redesignated as (f); new (g), (h)
and (i) added ............................. 30832
1.53 (b) introductory text and (1)
revised; (d) removed; (e) redesignated as (d) ............................ 30833
(b)(1) correctly revised .................35558
(b) revised ....................................52753
1.73 (a)(7), (8), (9), (g) and (h) revised; (q) through (y) added ....... 30833
(a)(7), (9), (d)(1), (e) and (q) revised; (r) through (y) removed
................................................. 52753
1.74 Revised .................................. 30833
Introductory text and (a) amended..............................................52754
29.220 (c) added.............................. 62396
29.520 (d) amended......................... 62396
37.9 Revised .................................. 63265
37.41 Existing text designated as
(a); (b) added ............................. 63266
37.131 (b)(4) amended..................... 63266
37 Appendix A revised ................... 63266
Appendix D amended ....................63266
40 Authority citation revised; nomenclature change ................... 49384
40.3 Amended................................ 49384
754
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Subtitle AContinued
24.401 (c)(2)(iii) correctly amended ............................................. 22611
24.403 (a)(3) and (c)(6) correctly
amended................................... 22611
24 Appendix A corrected ............... 22611
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49 CFRContinued
71 FR
Page
Subtitle AContinued
Correctly amended ......................55347
40.23 (c) amended .......................... 49384
40.73 (a)(2) amended ...................... 49384
40.83 (c)(2) and (4) amended............ 49384
40.191 (a)(7) revised ....................... 49384
40.267 (c)(5) amended..................... 49384
40.269 (b) amended......................... 49384
40.281 (a)(4) amended; (a)(5) redesignated as (a)(6); new (a)(5)
added........................................ 49384
Introductory
text
correctly
amended ...................................55347
40.283 (a) revised ........................... 49384
71.5 (b) and (c) revised ..................... 3245
2007
49 CFR
72 FR
Page
Subtitle A
1 Authority citation revised ......... 41638
1.66 (hh) added .............................. 41639
23.3 Amended................................ 15616
23.11 Amended .............................. 15616
23.13 (a) and (b) revised .................. 15616
23.33 Revised ................................ 15617
26.9 Revised .................................. 15617
26.65 Revised ................................ 15617
37.9 (c)(1) corrected....................... 11089
40.209 Heading corrected; CFR
correction ................................ 54600
40.245 (b)(1), (2), (3), (6), (8), (9) and
(10) revised; interim ................... 1299
40.267 (a)(4) added; interim ............. 1299
71.5 (b) revised................................ 6177
(b) revised; eff. 11407...................54377
2008
49 CFR
73 FR
Page
Subtitle A
1 Authority citation revised ........ 20001,
59538
1.23 (f) revised ............................... 57269
1.26 (a) revised .............................. 14728
1.50 (q) added ................................ 20001
1.57b Heading revised.................... 33328
1.58 (j) added ................................. 57269
1.59 (c)(6) revised .......................... 57269
1.66 (ii) added ................................ 59538
7.2 Amended ................................. 33328
7.10 Revised .................................. 33328
7.15 (a) revised .............................. 33328
7.41 (b) and (c) revised ................... 33328
7.44 (g) and (h) revised ................... 33328
10.5 Amended................................ 33329
49 CFRContinued
755
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Subtitle AContinued
10.11 Amended .............................. 33329
10.13 Revised ................................ 33329
10.61 (a) introductory text revised......................................... 33329
10.63 Introductory text revised ..... 33329
10.77 (c) amended .......................... 33329
10 Appendix amended ................... 33329
24.602 Amended............................. 33329
24 Appendix B amended................. 33329
26.89 (a)(3) amended ...................... 33329
29 Removed .................................. 24141
31.26 (a) amended .......................... 33329
37.213 (e) amended......................... 33329
40.3 Amended................................ 35969
40.7 (a) amended............................ 33329
40.23 (f) introductory text revised; (f)(5) added ...................... 35970
40.33 (a) amended .......................... 33329
40.67 (b) revised; (i) through (m)
redesignated as (j) through (n);
new (i) added ............................. 35970
Regulation at 73 FR 35970 eff.
date changed in part to 11108
................................................. 50222
Regulation at 73 FR 35970 confirmed in part............................62910
(b) revised ....................................70284
40.83 (g)(2) revised ......................... 35970
40.89 (b) revised............................. 35970
40.95 Revised ................................ 35970
40.96 Added ................................... 35970
40.97 (a) revised; (b)(2) amended ............................................. 35970
40.103 (c)
introductory
text
amended; (c)(1) through (5) revised; (c)(6) removed ................. 35971
40.105 (c) revised ........................... 35971
40.111 (d) added ............................. 35971
40.121 (b)(3) amended..................... 33329
40.129 Heading and (a)(5) revised......................................... 35971
40.131 Heading revised .................. 35971
40.133 (b) and (c) redesignated as
(c) and (d); heading, new (c) and
new (d) added; new (b)
added........................................ 35971
40.149 (a) introductory text and
(1) revised ................................. 35971
40.155 (d) added ............................. 35971
40.159 (a)(1), (2) and (3) added;
(a)(4)(iii) and (d) through (g)
added........................................ 35972
40.160 Added ................................. 35972
40.162 Added ................................. 35972
40.171 (a) revised ........................... 35973
40.177 (d) revised ........................... 35973
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73 FR
Page
Subtitle AContinued
40.179 Revised ............................... 35973
40.181 Revised ............................... 35973
40.183 (a) revised; (b) removed; (c)
redesignated as new (b) ............. 35973
40.187 Revised ............................... 35973
40.191 (a)(8) revised; (a)(9), (10) and
(11) added.................................. 35974
40.197 (c)(3) revised; (c)(4) redesignated as (c)(5); new (c)(4)
added........................................ 35974
40.201 (c), (d) and (e) revised ........... 35974
40.207 (a)(3) amended..................... 35975
40.213 (b)(1) amended..................... 33329
40.281 (b)(3) amended..................... 33329
40.331 (g) added; interim................ 33737
40 Appendix D amended ................ 33329
Appendices B and D revised;
Appendix C added; Appendix F
amended ...................................35975
89.5 (a) revised; (b) redesignated
as (c); new (b) added ................... 57269
89.15 Heading and (b) introductory text revised; (b)(2) removed; (b)(3) redesignated as
new (b)(2) .................................. 57269
2009
49 CFR
74 FR
Page
Subtitle A
1 Authority citation revised ......... 26982
1.1 Revised ................................... 26982
1.49 (oo) and (pp) added .................. 26982
1.51 (j) added ................................. 26982
23.33 Revised ................................ 15224
26.65 Revised ................................ 15224
40.67 (b) revised............................. 37952
89.2189.33 (Subpart B) Authority citation revised ................... 40523
89.35 Added ................................... 40523
2010
49 CFR
75 FR
Page
Subtitle A
7.2 Correctly amended.................... 5244
10.77 (c) correctly amended............. 5244
10 Appendix correctly amended............................................... 5244
22 Added ....................................... 19290
23.7 Revised .................................. 16358
26.45 (e) and (f) revised .................... 5536
39 Added; eff. 11310 ..................... 38893
39 Stayed in part through 13
11.............................................. 68467
49 CFRContinued
2011
(Regulations published from January 1,
2011, through October 1, 2011)
49 CFR
76 FR
Page
Subtitle A
1.59 (a)(7) added............................. 15222
756
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Subtitle AContinued
39.39 Stayed through 1312 ........... 68467
40.3 Heading revised; amended ...... 49861
40.14 Added; interim ..................... 59107
40.23 (f)(4) revised; interim ............ 59107
40.45 (b) and (c)(3) revised; interim........................................ 59107
40.63 (e) revised; interim ............... 59107
40.83 (a) revised; interim ............... 59107
40.87 Heading and (a) revised; (e)
added........................................ 49862
40.97 (g) added ............................... 49862
(a)(2)(i), (ii) and (e)(1) revised; interim ........................................59107
40.121 (d) revised ........................... 49862
40.129 (c) revised; interim.............. 59107
40.139 Revised ............................... 49862
40.140 Added ................................. 49863
40.151 (g) revised ........................... 49863
40.159 (a)(6) added.......................... 49863
40.163 (h) added ............................. 49863
(c)(8) and (9) amended; (c)(10)
added; interim ..........................59107
40.187 (f) revised; interim .............. 59108
40.191 (d)(2) revised; interim.......... 59108
40.193 (d)(2)(i) revised; interim ...... 59108
40.203 (d)(2) and (3) revised; interim........................................ 59108
40.209 (b)(1) and (9) revised; interim........................................ 59108
40.213 (a) correctly amended ........... 5244
40.225 (a) amended .......................... 8529
(a) correctly amended ..................13009
40.245 Regulation at 72 FR 1299
confirmed .................................. 8527
40.267 Regulation at 72 FR 1299
confirmed .................................. 8527
40.331 Regulation at 73 FR 33737
confirmed .................................. 8526
40.355 (l) revised; interim .............. 59108
40 Appendix B revised ................... 49863
Appendix C revised .......................49864
40 Appendix G revised..................... 8529
Appendix G correctly revised .......13009
Appendix G amended ....................38423
40 Appendix H revised..................... 8535
71.7 (a) revised; eff. 11710............. 60007
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49 CFRContinued
76 FR
Page
Subtitle AContinued
8.11 (b)(2) removed; (b)(3) and (4)
redesignated as new (b)(2) and
(3); new (b)(2) amended .............. 19708
26 Authority citation revised ......... 5096
26.5 Amended ................................. 5096
26.11 (a) added ................................ 5096
26.31 Revised .................................. 5096
26.37 (b) revised .............................. 5097
26.39 Added .................................... 5097
26.45 (e)(2), (3), (f)(1) and (2) revised; (f)(3) and (4) redesignated as (f)(6) and (7); new (f)(3),
(4) and (5) added .......................... 5097
26.47 (c) and (d) added...................... 5098
26.51 (b)(1) and (f)(1) revised ............ 5098
26.53 (f)(2), (3) and (g) redesignated as (g), (h) and (i); (f)(1) revised; new (f)(2) through (6)
added ......................................... 5098
26.67 (a)(2)(i) and (iv) revised; (b),
(c) and (d) amended..................... 5099
26.71 (n) revised .............................. 5099
26.73 (b) revised .............................. 5099
26.81 (g) amended............................ 5100
26.83 (e) removed; (h) revised; (l)
and (m) added ............................. 5100
26.84 Removed................................ 5100
26.85 Revised .................................. 5100
26.87 (h) removed ............................ 5101
26.107 (a) and (b) amended ............... 5101
26.109 (a)(2) revised ......................... 5101
37.3 Amended; eff. 101911 ............ 57935
37.15 Revised; eff. 101911 ............. 57935
37.23 (a), (c) and (d) amended; eff.
101911..................................... 57935
Subtitle AContinued
37.42 Added; eff. 101911 ................ 57935
37.71 (a) amended; (b) through (g)
removed; eff. 101911 ................ 57936
37.103 (b) and (c) amended; eff. 10
1911 ......................................... 57936
37.165 (b) revised; eff. 101911 ........ 57936
37.169 Removed; eff. 101911.......... 57936
37.193 (a)(2) and (c) removed; (a)(3)
redesignated as new (a)(2); eff.
101911..................................... 57936
37 Appendix D amended; eff. 10
1911 ......................................... 57936
38.91 (c)(1) and (2) amended; eff.
101911..................................... 57939
38.93 (d)(3) amended; eff. 1019
11.............................................. 57939
38.95 (a)(2) amended; eff. 1019
11.............................................. 57939
38.111 (b)(1) and (2) amended; eff.
101911..................................... 57939
38.113 (d)(3) amended; eff. 1019
11.............................................. 57939
38.125 (a)(2) amended; eff. 1019
11.............................................. 57939
40.3 Amended................................ 59577
40.45 (b) revised............................. 59577
40.97 (a)(2)(i) and (ii) correctly
added; (d)(1), (2) and (3) correctly redesignated as (e)(1), (2)
and (3); CFR correction ............. 18072
40.163 (c)(8) and (9) amended;
(c)(10) removed ......................... 59578
40.203 (d)(3) revised ....................... 59578
757
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