CFR 2019 Title49 Vol1

Title 49
Transportation
Parts 1 to 99
Revised as of October 1, 2019
Containing a codification of documents

of general applicability and future effect
As of October 1, 2019
Published by the Office of the Federal Register

National Archives and Records Administration
as a Special Edition of the Federal Register
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Table of Contents
Page
Explanation ................................................................................................ v
Title 49:
SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION ....... 3
Finding Aids:
Table of CFR Titles and Chapters ....................................................... 701
Alphabetical List of Agencies Appearing in the CFR ......................... 721
List of CFR Sections Affected ............................................................. 731

iii
Cite this Code: CFR
To cite the regulations in

this volume use title,
part and section num-
ber. Thus, 49 CFR 1.1
refers to title 49, part 1,
section 1.
iv
Explanation
The Code of Federal Regulations is a codification of the general and permanent
rules published in the Federal Register by the Executive departments and agen-
cies of the Federal Government. The Code is divided into 50 titles which represent
broad areas subject to Federal regulation. Each title is divided into chapters
which usually bear the name of the issuing agency. Each chapter is further sub-
divided into parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year and issued
on a quarterly basis approximately as follows:
Title 1 through Title 16..............................................................as of January 1
Title 17 through Title 27 .................................................................as of April 1
Title 28 through Title 41 ..................................................................as of July 1
Title 42 through Title 50 .............................................................as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially noticed (44
U.S.C. 1507). The Code of Federal Regulations is prima facie evidence of the text
of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual issues
of the Federal Register. These two publications must be used together to deter-
mine the latest version of any given rule.
To determine whether a Code volume has been amended since its revision date
(in this case, October 1, 2019), consult the ‘‘List of CFR Sections Affected (LSA),’’
which is issued monthly, and the ‘‘Cumulative List of Parts Affected,’’ which
appears in the Reader Aids section of the daily Federal Register. These two lists
will identify the Federal Register page number of the latest amendment of any
given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal Reg-
ister since the last revision of that volume of the Code. Source citations for
the regulations are referred to by volume number and page number of the Federal
Register and date of publication. Publication dates and effective dates are usu-
ally not the same and care must be exercised by the user in determining the
actual effective date. In instances where the effective date is beyond the cut-
off date for the Code a note has been inserted to reflect the future effective
date. In those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be inserted following
the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96–511) requires Federal agencies
to display an OMB control number with their information collection request.
Many agencies have begun publishing numerous OMB control numbers as amend-
ments to existing regulations in the CFR. These OMB numbers are placed as
close as possible to the applicable recordkeeping or reporting requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of the revision
date stated on the cover of each volume are not carried. Code users may find
the text of provisions in effect on any given date in the past by using the appro-
priate List of CFR Sections Affected (LSA). For the convenience of the reader,
a ‘‘List of CFR Sections Affected’’ is published at the end of each CFR volume.
For changes to the Code prior to the LSA listings at the end of the volume,
consult previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published for 1949-
1963, 1964-1972, 1973-1985, and 1986-2000.
‘‘[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]’’ loca-
tion at any time. Occasionally ‘‘[Reserved]’’ is used editorially to indicate that
a portion of the CFR was left vacant and not dropped in 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 regu-
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552(a)). This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the Federal Register
will approve an incorporation by reference only when the requirements of 1 CFR
part 51 are met. Some of the elements on which approval is based are:
(a) The incorporation will substantially reduce the volume of material pub-
lished in the Federal Register.
(b) The matter incorporated is in fact available to the extent necessary to
afford fairness and uniformity in the administrative process.
(c) The incorporating document is drafted and submitted for publication in
accordance with 1 CFR part 51.
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CFR INDEXES AND TABULAR GUIDES
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lishing in the CFR are also included in this volume.

An index to the text of ‘‘Title 3—The President’’ is carried within that volume.
vi
The Federal Register Index is issued monthly in cumulative form. This index
is based on a consolidation of the ‘‘Contents’’ entries in the daily Federal Reg-
ister.
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revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
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Code of Federal Regulations.
INQUIRIES
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Register and the Government Publishing Office. It is available at www.ecfr.gov.
OLIVER A. POTTS,
Director,
Office of the Federal Register
October 1, 2019
vii
THIS TITLE
Title 49—TRANSPORTATION is composed of nine volumes. The parts in these vol-

umes are arranged in the following order: Parts 1–99, parts 100–177, parts 178–
199, parts 200–299, parts 300–399, parts 400–571, parts 572–999, parts 1000–1199, and
part 1200 to end. The first volume (parts 1–99) contains current regulations issued
under subtitle A—Office of the Secretary of Transportation; the second volume
(parts 100–177) and the third volume (parts 178–199) contain the current regula-
tions issued under chapter I—Pipeline and Hazardous Materials Safety Adminis-
tration (DOT); the fourth volume (parts 200–299) contains the current regulations
issued under chapter II—Federal Railroad Administration (DOT); the fifth volume
(parts 300–399) contains the current regulations issued under chapter III—Federal
Motor Carrier Safety Administration (DOT); the sixth volume (parts 400–571) con-
tains the current regulations issued under chapter IV—Coast Guard (DHS), and
some of chapter V—National Highway Traffic Safety Administration (DOT); the
seventh volume (parts 572–999) contains the rest of the regulations issued under
chapter V—National Highway Traffic Safety Administration (DOT), and the cur-
rent regulations issued under chapter VI—Federal Transit Administration (DOT),
chapter VII—National Railroad Passenger Corporation (AMTRAK), and chapter
VIII—National Transportation Safety Board; the eighth volume (parts 1000–1199)
contains some of the current regulations issued under chapter X—Surface Trans-
portation Board and the ninth volume (part 1200 to end) contains the rest of
the current regulations issued under chapter X—Surface Transportation Board,
chapter XI—Research and Innovative Technology Administration (DOT), and
chapter XII—Transportation Security Administration (DHS). The contents of
these volumes represent all current regulations codified under this title of the
CFR as of October 1, 2019.
In the volume containing parts 100–177, see § 172.101 for the Hazardous Materials
Table. The Federal Motor Vehicle Safety Standards appear in part 571.
For this volume, Gabrielle E. Burns was Chief Editor. The Code of Federal
Regulations publication program is under the direction of John Hyrum Martinez,
assisted by Stephen J. Frattini.
ix
Title 49—Transportation
(This book contains parts 1 to 99)
Part
SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPOR-

TATION ................................................................................ 1
Subtitle A—Office of the Secretary of
Transportation
Part Page
1 Organization and delegation of powers and duties .. 5
3 Official seal ............................................................. 52
5 Rulemaking procedures ........................................... 52
6 Implementation of Equal Access to Justice Act in
agency proceedings .............................................. 55
7 Public availability of information .......................... 61
8 Classified information: Classification/declassifica-
tion/access ............................................................ 78
9 Testimony of employees of the Department and
production of records in legal proceedings ........... 84
10 Maintenance of and access to records pertaining to
individuals ............................................................ 88
11 Protection of human subjects ................................. 101
15 Protection of sensitive security information .......... 119
17 Intergovernmental review of Department of Trans-
portation programs and activities ....................... 126
18–19 [Reserved]
20 New restrictions on lobbying .................................. 129
21 Nondiscrimination in federally-assisted programs
of the Department of Transportation—Effec-
tuation of Title VI of the Civil Rights Act of 1964 141
22 Short-term lending program (STLP) ...................... 152
23 Participation of disadvantaged business enterprise
in airport concessions .......................................... 161
24 Uniform relocation assistance and real property
acquisition for Federal and federally-assisted
programs .............................................................. 182
25 Nondiscrimination on the basis of sex in education
programs or activities receiving Federal finan-
cial assistance ...................................................... 229
26 Participation by disadvantaged business enter-
prises in Department of Transportation financial
assistance programs ............................................. 245
49 CFR Subtitle A (10–1–19 Edition)
Part Page
27 Nondiscrimination on the basis of disability in pro-
grams or activities receiving Federal financial
assistance ............................................................. 322
28 Enforcement of nondiscrimination on the basis of
handicap in programs or activities conducted by
the Department of Transportation ....................... 338
30 Denial of public works contracts to suppliers of
goods and services of countries that deny pro-
curement market access to U.S. contractors ....... 345
31 Program fraud civil remedies .................................. 350
32 Governmentwide requirements for drug-free work-
place (financial assistance) .................................. 366
33 Transportation priorities and allocation system .... 371
37 Transportation services for individuals with dis-
abilities (ADA) ..................................................... 396
38 Americans with Disabilities Act (ADA) accessi-
bility specifications for transportation vehicles .. 494
39 Transportation for individuals with disabilities:
passenger vessels .................................................. 532
40 Procedures for transportation workplace drug and
alcohol testing programs ..................................... 548
41 Seismic safety ......................................................... 653
71 Standard time zone boundaries ............................... 656
79 Medals of honor ....................................................... 661
80 Credit assistance for surface transportation
projects ................................................................ 662
89 Implementation of the Federal Claims Collection
Act ....................................................................... 667
91 International air transportation fair competitive
practices ............................................................... 674
92 Recovering debts to the United States by salary
offset .................................................................... 676
93 Aircraft allocation .................................................. 686
95 [Reserved]
98 Enforcement of restrictions on post-employment
activities .............................................................. 687
99 Employee responsibilities and conduct ................... 690
APPENDIX TO SUBTITLE A—UNITED STATES RAILWAY ASSO-
CIATION—EMPLOYEE RESPONSIBILITIES AND CONDUCT .......... 692
PART 1—ORGANIZATION AND DEL- 1.44 Office of Intelligence, Security and
Emergency Response.
EGATION OF POWERS AND DU- 1.45 Delegations to the Director of the Of-
TIES fice of Intelligence, Security and Emer-
gency Response.
Subpart A—General 1.46 Office of Public Affairs.
1.47 Delegations to the Assistant to the
Sec. Secretary and Director of Public Affairs.
1.1 Overview. 1.48 Office of the Chief Information Officer.
1.2 Organization of the Department.
1.49 Delegations to the Chief Information
1.3 Exercise of authority.
Officer.
1.4 Construction.
1.50 Office of Drug & Alcohol Policy & Com-
Subpart B—Office of the Secretary pliance.
1.60 General Authorizations and Delega-
1.11 Overview. tions to Secretarial Officers.
1.13 OST key responsibilities.
1.15 OST structure. Subpart C—Office of Inspector General
1.17 OST line of secretarial succession.
1.70 Overview.
OST OFFICIALS 1.71 Key responsibilities.
1.20 Secretary of Transportation. 1.72 Structure.
1.21 Reservations of Authority to the Sec- 1.73 Authority of Inspector General.
retary of Transportation. 1.74 Delegations to Inspector General.
1.22 Deputy Secretary.
1.23 Delegations to the Deputy Secretary. Subpart D—Operating Administrations
1.24 Under Secretary of Transportation for
Policy. 1.80 Overview.
1.25 Delegations to the Under Secretary of 1.81 Delegations to all Administrators.
Transportation for Policy. 1.81a Redelegation by all Administrators.
1.25a Redelegations by the Under Secretary 1.82 The Federal Aviation Administration.
of Transportation for Policy. 1.83 Delegations to the Federal Aviation
1.26 General Counsel. Administrator.
1.27 Delegations to the General Counsel. 1.84 The Federal Highway Administration.
1.27a Delegations to the Career Deputy Gen- 1.85 Delegations to the Federal Highway
eral Counsel. Administrator.
1.27b Delegations to the Assistant General 1.86 The Federal Motor Carrier Safety Ad-
Counsel for General Law. ministration.
1.30 Assistant Secretaries. 1.87 Delegations to the Federal Motor Car-
1.31 Assistant Secretary for Transportation rier Safety Administrator.
Policy. 1.88 The Federal Railroad Administration.
1.32 Assistant Secretary for Aviation and 1.89 Delegations to the Federal Railroad
International Affairs. Administrator.
1.33 Chief Financial Officer and Assistant 1.90 The Federal Transit Administration.
Secretary for Budget and Programs. 1.91 Delegations to the Federal Transit Ad-
1.34 Delegations to the Chief Financial Offi- ministrator.
cer and Assistant Secretary for Budget 1.92 The Maritime Administration.
and Programs.
1.93 Delegations to the Maritime Adminis-
1.35 Assistant Secretary for Governmental
trator.
Affairs.
1.94 The National Highway Traffic Safety
1.36 Delegations to the Assistant Secretary
Administration.
for Governmental Affairs.
1.37 Assistant Secretary for Administra- 1.95 Delegations to the National Highway
tion. Traffic Safety Administrator.
1.38 Delegations to the Assistant Secretary 1.96 The Pipeline and Hazardous Materials
for Administration. Safety Administration.
1.38a Redelegations by the Assistant Sec- 1.97 Delegations to the Pipeline and Haz-
retary for Administration. ardous Materials Safety Administrator.
1.39 Executive Secretariat. 1.98 The Research and Innovative Tech-
1.40 Departmental Office of Civil Rights. nology Administration.
1.41 Delegations to the Director of the De- 1.99 Delegations to the Research and Inno-
partmental Office of Civil Rights. vative Technology Administrator.
1.42 Office of Small and Disadvantaged 1.100 The Saint Lawrence Seaway Develop-
Business Utilization. ment Corporation.
1.43 Delegations to the Director of the Of- 1.101 Delegations to the Saint Lawrence
fice of Small and Disadvantaged Business Seaway Development Corporation Ad-
Utilization. ministrator.
§ 1.1 49 CFR Subtitle A (10–1–19 Edition)
APPENDIX A TO PART 1—DELEGATIONS AND on behalf of the Secretary, or, with re-
REDELEGATIONS BY SECRETARIAL OFFI- spect to matters under their jurisdic-
CERS
tions, by or on behalf of the Deputy
AUTHORITY: 49 U.S.C. 322. Secretary, the Under Secretary, the
SOURCE: 81 FR 19819, Apr. 5, 2016, unless General Counsel, an Assistant Sec-
otherwise noted. retary, the Inspector General, or an
Administrator. This includes, wherever
Subpart A—General specified, the requirement for advance
notice to, prior coordination with, or
§ 1.1 Overview. prior approval by an authority other
This part describes the organization than that of the official proposing to
of the United States Department of act.
Transportation and provides for the (b) Subject to the reservations of au-
performance of duties imposed upon, thority to the Secretary of Transpor-
and the exercise of powers vested in, tation in § 1.21, the Deputy Secretary,
the Secretary of Transportation by the Under Secretary, the General
law. Counsel, the Assistant Secretaries, the
Inspector General, and the Administra-
§ 1.2 Organization of the Department. tors exercise the powers and perform
(a) The Secretary of Transportation the duties delegated to them under this
is the head of the Department. part.
(b) The Department comprises the Of- (c) For delegations of authority vest-
fice of the Secretary of Transportation ed in the Secretary by Executive Order
(OST), the Office of the Inspector Gen- 13526 (see also Executive Orders 12958
eral (OIG), and the following Operating and 12065) originally to classify docu-
Administrations, each headed by an ments as secret and confidential, see
Administrator who reports directly to § 8.11 of this subtitle. Previous delega-
the Secretary: tions of authority to Department of
(1) The Federal Aviation Administra- Transportation officials to originally
tion (FAA). classify information as secret and con-
(2) The Federal Highway Administra- fidential are hereby rescinded.
tion (FHWA).
§ 1.4 Construction.
(3) The Federal Motor Carrier Safety
Administration (FMCSA). For the purposes of this part:
(4) The Federal Railroad Administra- (a) ‘‘Federal Aviation Adminis-
tion (FRA). trator’’ is synonymous with ‘‘Adminis-
(5) The Federal Transit Administra- trator of the Federal Aviation Admin-
tion (FTA). istration.’’
(6) The Maritime Administration (b) ‘‘Federal Highway Adminis-
(MARAD). trator’’ is synonymous with ‘‘Adminis-
(7) The National Highway Traffic trator of the Federal Highway Admin-
Safety Administration (NHTSA). istration.’’
(8) The Pipeline and Hazardous Mate- (c) ‘‘Federal Motor Carrier Safety
rials Safety Administration (PHMSA). Administrator’’ is synonymous with
(9) The Research and Innovative ‘‘Administrator of the Federal Motor
Technology Administration (RITA). Carrier Safety Administration.’’
(10) The Saint Lawrence Seaway De- (d) ‘‘Federal Railroad Administrator’’
velopment Corporation (SLSDC). is synonymous with ‘‘Administrator of
the Federal Railroad Administration.’’
§ 1.3 Exercise of authority. (e) ‘‘Federal Transit Administrator’’
(a) In exercising powers and per- is synonymous with ‘‘Administrator of
forming duties delegated by this part the Federal Transit Administration.’’
or redelegated pursuant thereto, offi- (f) ‘‘Maritime Administrator’’ is syn-
cials of the Department of Transpor- onymous with ‘‘Administrator of the
tation are governed by applicable laws, Maritime Administration.’’
Executive Orders and regulations and (g) ‘‘National Highway Traffic Safety
by policies, objectives, plans, stand- Administrator’’ is synonymous with
ards, procedures, and limitations as ‘‘Administrator of the National High-

may be issued from time to time by or way Traffic Safety Administration.’’
Office of the Secretary of Transportation § 1.15
(h) ‘‘Pipeline and Hazardous Mate- (9) Providing effective management

rials Safety Administrator’’ is synony- of the Department as a whole to ensure
mous with ‘‘Administrator of the Pipe- it achieves organizational excellence;
line and Hazardous Materials Safety (10) Leading Department-wide efforts
Administration.’’ for greater transparency and account-
(i) ‘‘Saint Lawrence Seaway Develop- ability;
ment Corporation Administrator’’ is (11) Administering the Department’s
synonymous with ‘‘Administrator of Livable Communities initiative to in-
the Saint Lawrence Seaway Develop- crease access to convenient and afford-
ment Corporation.’’ able transportation choices and im-
prove transportation networks that ac-
commodate pedestrians and bicycles;
Subpart B—Office of the Secretary (12) Coordinating the Department’s
§ 1.11 Overview. credit and financial assistance pro-
grams by leading the Credit Council to
This subpart sets forth the OST’s key ensure responsible financing for the
responsibilities, its basic organiza- Nation’s transportation projects;
tional structure, and the line of Secre- (13) Formulating and executing poli-
tarial succession in time of need. It cies to ensure effective operation of the
also describes the key responsibilities Department’s aviation economic pro-
of OST officials, and sets forth delega- gram including functions related to
tions and reservations of authority to consumer protection and civil rights,
those officials. domestic airline licensing matters,
competition oversight, airline data col-
§ 1.13 OST key responsibilities. lection, and review of international
(a) The OST is responsible for: route negotiations and route awards to
(1) Providing leadership in formu- carriers; and
lating and executing well-balanced na- (14) Leading and coordinating Fed-
tional and international transportation eral Government transportation fringe
objectives, policies, and programs to benefit programs.
ensure the Nation has safe, economi- (b) [Reserved]
cally competitive transportation sys- § 1.15 OST structure.
tems that support U.S. interests, that
are maintained in a state of good re- (a) Secretary and Deputy Secretary.
pair, that foster environmental sus- The Secretary and Deputy Secretary
tainability, and that support livable are assisted by the following, all of
communities; which report directly to the Secretary:
(2) Chairing the Department’s Safety (1) The Chief of Staff;
(2) The Executive Secretariat;
Council;
(3) The Departmental Office of Civil
(3) Stimulating and promoting re-
Rights;
search and development in all modes
(4) The Office of Small and Disadvan-
and types of transportation, with spe- taged Business Utilization;
cial emphasis on transportation safety; (5) The Office of Intelligence, Secu-
(4) Coordinating the various trans- rity and Emergency Response;
portation programs of the Federal Gov- (6) The Office of Public Affairs;
ernment; (7) The Office of the Chief Informa-
(5) Encouraging maximum private tion Officer; and
development of transportation serv- (8) The Office of Drug & Alcohol Pol-
ices; icy & Compliance.
(6) Providing responsive, timely, and (b) The Under Secretary of Transpor-
effective liaison with Congress and tation for Policy, the General Counsel,
public and private organizations on and the Assistant Secretaries for Ad-
transportation matters; ministration, Budget and Programs,
(7) Providing innovative approaches and Governmental Affairs also report
to urban transportation and environ- directly to the Secretary.
mental enhancement programs; (c) Office of the Under Secretary of
(8) Overseeing the Department’s Transportation for Policy. This Office is

multimodal freight policy; composed of:
(1) The Office of the Assistant Sec- (3) The Office of Hearings;
retary for Transportation Policy, (4) The Office of Security;
which includes: (5) The Office of the Senior Procure-
(i) The Office of Policy Development, ment Executive;
Strategic Planning and Performance; (6) The Office of Financial Manage-
(ii) The Office of Infrastructure Fi- ment and Transit Benefit Programs;
nance and Innovation; and and
(iii) The Office of the Chief Econo- (7) The Office of Facilities, Informa-
mist. tion and Asset Management.
(2) The Office of the Assistant Sec-
retary for Aviation and International § 1.17 OST line of secretarial succes-
Affairs, which includes: sion.
(i) The Office of International Trans-
portation and Trade; (a) The following officials, in the
(ii) The Office of International Avia- order indicated, shall act as Secretary
tion; and of Transportation, in case of the ab-
(iii) The Office of Aviation Analysis. sence or disability of the Secretary,
(d) Office of the General Counsel. This until the absence or disability ceases,
Office is composed of: or in the case of a vacancy, until a suc-
(1) The Office of General Law; cessor is appointed. Notwithstanding
(2) The Office of International Law; the provisions of this section, the
(3) The Office of Litigation; President retains discretion, to the ex-
(4) The Office of Legislation; tent permitted by the law, to depart
(5) The Office of Regulation and En- from this order in designating an act-
forcement; ing Secretary of Transportation.
(6) The Office of Operations, which (1) Deputy Secretary.
includes the Freedom of Information (2) Under Secretary of Transpor-
Act (FOIA) Office; tation for Policy.
(7) The Office of Aviation Enforce- (3) General Counsel.
ment and Proceedings, which includes (4) Chief Financial Officer and Assist-
the Aviation Consumer Protection Di- ant Secretary for Budget and Pro-
vision; and grams.
(8) The Center for Alternative Dis- (5) Assistant Secretary for Transpor-
pute Resolution. tation Policy.
(e) Office of the Chief Financial Officer (6) Assistant Secretary for Govern-
and Assistant Secretary for Budget and mental Affairs.
Programs. This Office is composed of: (7) Assistant Secretary for Aviation
(1) The Office of Budget and Program and International Affairs.
Performance; (8) Assistant Secretary for Adminis-
(2) The Office of Financial Manage- tration.
ment; (9) Administrator of the Federal
(3) The Office of the Chief Financial Highway Administration.
Officer for the Office of the Secretary;
(10) Administrator of the Federal
and
Aviation Administration.
(4) The Office of Credit Oversight and
Risk Management. (11) Administrator of the Federal
(f) Office of the Assistant Secretary for Motor Carrier Safety Administration.
Governmental Affairs. This Office con- (12) Administrator of the Federal
tains the following functional areas: Railroad Administration.
Congressional Affairs and Intergovern- (13) Administrator of the Federal
mental Affairs; and includes a Deputy Transit Administration.
Assistant Secretary for Tribal Govern- (14) Administrator of the Maritime
ment Affairs. Administration.
(g) Office of the Assistant Secretary for (15) Administrator of the Pipeline
Administration. This Office is composed and Hazardous Materials Safety Ad-
of: ministration.
(1) The Office of Audit Relations; (16) Administrator of the National
(2) The Office of Human Resource Highway Traffic Safety Administra-

Management; tion.
(17) Administrator of the Research with the Secretary of Housing and

and Innovative Technology Adminis- Urban Development).
tration. (iii) Authority to develop, prepare,
(18) Administrator of the Saint Law- coordinate, transmit, and revise trans-
rence Seaway Development Corpora- portation investment standards and
tion. criteria under 49 U.S.C. 305 (Transpor-
(19) Regional Administrator, South- tation investment standards and cri-
ern Region, Federal Aviation Adminis- teria).
tration. (iv) Authority relating to standard
(20) Director, Resource Center, Lake- time zones and advanced (daylight)
wood, Colorado, Federal Highway Ad- time (15 U.S.C. 260 et seq.).
ministration. (2) Legislation, rulemakings, and re-
(21) Regional Administrator, North- ports. (i) Submission to the President,
west Mountain Region, Federal Avia- the Director of the Office of Manage-
tion Administration. ment and Budget, or Congress of pro-
(b) Without regard to the foregoing, a posals or recommendations for legisla-
person directed to perform the duties tion, significant rulemakings and re-
of the Secretary pursuant to 5 U.S.C. lated documents as authorized by law,
3347 (the Vacancies Act) shall act as Executive Orders, proclamations or re-
Secretary of Transportation. organization plans, or other Presi-
dential action.
OST OFFICIALS (ii) Submission to the President or
Congress of any report or any proposed
§ 1.20 Secretary of Transportation. transportation policy or investment
The Secretary is the head of the De- standards or criteria, except with the
partment. The Secretary exercises prior written approval of the Sec-
oversight of all of the OST compo- retary.
nents, as well as each of the Operating (iii) Submission of the annual state-
Administrations, and overall planning, ment on systems of internal account-
direction, and control of the Depart- ing and administrative control under
ment’s agenda. the Federal Managers’ Financial Integ-
rity Act of 1982 (FMFIA) (31 U.S.C. 3512
§ 1.21 Reservations of Authority to the note).
Secretary of Transportation. (3) Budget and finance. (i) Approval
(a) All powers and duties that are not and submission to the Office of Man-
delegated by the Secretary in this part, agement and Budget of original or
or otherwise vested in officials other amended budget estimates or requests
than the Secretary, are reserved to the for allocations of personnel ceiling (31
Secretary. Except as otherwise pro- U.S.C. 1108).
vided, the Secretary may exercise pow- (ii) Approval of requests for legisla-
ers and duties delegated or assigned to tion which, if enacted, would authorize
officials other than the Secretary. subsequent appropriations for the De-
(b) The delegations of authority in partment (31 U.S.C. 581b).
subpart C (Office of the Inspector Gen- (iii) Transfer of the balance of an ap-
eral) and subpart D (Operating Admin- propriation from one operating ele-
istrations) of this part do not extend to ment to another within the Depart-
the following actions, authority for ment (31 U.S.C. 581c).
which is reserved to the Secretary or (iv) Submission to the Director of the
the Secretary’s delegatee within the Office of Management and Budget of
Office of the Secretary: requests for the transfer of the balance
(1) General transportation matters. or portions of an appropriation from
(i) Transportation leadership author- one element to another within the De-
ity pursuant to 49 U.S.C. 301 (Duties of partment (31 U.S.C. 665).
the Secretary of Transportation: Lead- (4) Personnel. (i) Recommendations to
ership, consultation, and cooperation). the Office of Personnel Management
(ii) Functions relating to transpor- regarding the allocation of a position
tation activities, plans, and programs to the Senior Executive Service (SES)
under 49 U.S.C. 304 (Joint activities or Senior Level (SL), or Scientific and
Professional Positions (ST) (5 U.S.C. classified information to industry per-

5108). sonnel.
(ii) Recommendations to the Office of (iv) Making those determinations or
Personnel Management of approval of delegations prescribed by Executive
the qualifications of any candidate for Order 13526 that are reserved to the
a position in the SES or SL. head of the Department.
(iii) Recommendations to the Office (6) Procurement. Exercising the ex-
of Personnel Management of a Lump- traordinary authority for defense con-
Sum Incentive Award in Excess of tracts provided for in Pub. L. 85–804 [(50
$10,000 (5 U.S.C. 4502). U.S.C. 1431–1435)].
(iv) Approval of the following actions (7) Printing. Requesting approval of
relating to Schedules A, B, C, or D (5 the Joint Committee on Printing for
CFR part 213) and noncareer executive any procurement or other action re-
assignment positions or incumbents, quiring Committee approval.
except for actions under Schedules A (8) Interagency agreements. Executing
and B limited to one year or less at any written interdepartmental or
grade GS–9 or lower, or an equivalent interagency agreement with the head
level: of another executive department or
(A) Establishment or abolition of po- agency.
sitions;
(9) Withholding of funds. Withholding
(B) Hires; or suspension of Federal-Aid Highway
(C) Promotions other than quality funds on a state-wide basis and the
and periodic within-grade promotions; waiver or compromise of such with-
(D) Transfer of personnel to Schedule holding or suspension, except for the
A, B, C, or D positions or non-career administration of 23 U.S.C. 141, 158, 159,
executive assignment positions, either 161, and 163 which are specifically dele-
permanently or on detail; and gated in §§ 1.85 (FHWA) and 1.95
(E) Transfer of personnel from Sched- (NHTSA).
ule A, B, C, or D or non-career execu- (10) National Highway Safety Advisory
tive assignment positions to career Committee. Directing the National
Civil Service positions.
Highway Safety Advisory Committee
(v) Approval of employment of ex- to meet (23 U.S.C. 404(c)).
perts or consultants.
(11) Maritime Subsidy Board. Review-
(vi) Authority to determine the max-
ing decisions, reports, orders and other
imum limit of age for appointment of
actions of the Maritime Subsidy Board.
air traffic controllers as provided by 5
U.S.C. 3307(b). (12) Cash purchases of passenger trans-
portation. The authority under 41 CFR
(vii) Authority to develop, coordi-
301–51.100 to authorize and approve cash
nate, and issue wage schedules under
the Federal Wage system. purchases for emergency passenger
transportation services costing more
(5) Security. (i) Authorizing the filling
than $100.
of a critical-sensitive position for a
limited period by a person on whom a (13) Solicitation of gifts. The implied
preappointment full field investigation authority to solicit gifts associated
has not been completed (Executive with 49 U.S.C. 326(a).
Order 10450) as amended and Executive (14) Foreign travel. Approving official
Order 12968 as amended by Executive travel outside of the United States.
Order 13467. (15) United States Merchant Marine
(ii) Requesting Presidential approval Academy. Pursuant to 49 U.S.C. 51303,
of a claim of executive privilege with the authority to appoint each year
respect to information requested by a without competition as cadets at the
Congressional committee or Member of United States Merchant Marine Acad-
Congress. emy not more than 40 qualified individ-
(iii) Making determinations pre- uals with qualities the Secretary con-
scribed by Executive Order 12968 as siders to be of special value to the
amended by Executive Order 13467 and Academy.
32 CFR part 147 relating to the adju- (16) Challenges and competitions. Ap-
dication and final denial of access to proving any challenge or competition
10
administered by any office or Oper- (2) OST-sponsored interagency com-

ating Administration of the Depart- mittees.
ment. (f) Approve the designation of:
(17) Committees. Approving the estab- (1) Departmental representatives and
lishment, modification, extension, or the chairman for interagency commit-
termination of all advisory committees tees sponsored by the Office of the Sec-
(including industry advisory commit- retary.
tees) subject to the Federal Advisory (2) Departmental members for inter-
Committee Act (Pub. L. 92–463; 5 U.S.C. national committees.
App.), and the designation of Depart- (g) Serve as the representative of the
mental representatives to those com- Secretary on the board of directors of
mittees. the National Railroad Passenger Cor-
(18) Credit assistance approval. Grant- poration and carry out the functions
ing final approval of applications for vested in the Secretary as a member of
credit assistance under the Transpor- the board by 49 U.S.C. 24302.
tation Infrastructure Finance and In- (h) Approve the initiation of regu-
novation Act (TIFIA), 23 U.S.C. 601–609. latory action, as defined in Executive
Order 12866, by Secretarial offices and
§ 1.22 Deputy Secretary. Operating Administrations.
Along with the Secretary, the Dep- § 1.24 Under Secretary of Transpor-
uty Secretary exercises oversight of all tation for Policy.
of the OST components, as well as each
of the Operating Administrations, and The Under Secretary provides leader-
overall planning, direction, and control ship in the Department’s development
of the Department’s agenda. The Dep- of policies and programs to protect and
uty Secretary: enhance the safety, adequacy, and effi-
ciency of the transportation system
(a) May exercise the authority of the
and services. The Office of the Under
Secretary, except where specifically
Secretary serves as the focal point
limited by law, order, regulation, or in-
within the Federal Government for co-
structions of the Secretary;
ordination of intermodal transpor-
(b) Serves as the Chief Operating Of-
tation policy, which brings together
ficer; and
departmental intermodal perspectives,
(c) Serves as the Chief Acquisition advocates intermodal interests, and
Officer. provides secretarial leadership and vis-
§ 1.23 Delegations to the Deputy Sec- ibility on issues that involve or affect
retary. more than one Operating Administra-
tion.
The Deputy Secretary may exercise
the authority of the Secretary, except § 1.25 Delegations to the Under Sec-
where specifically limited by law, retary of Transportation for Policy.
order, regulations, or instructions of The Under Secretary is delegated the
the Secretary. In addition, the Deputy following authorities:
Secretary is delegated authority to: (a) Lead the development of transpor-
(a) Exercise executive control over tation policy and serve as the principal
Departmental Budgeting and Program adviser to the Secretary on all trans-
Evaluation. portation policy matters.
(b) Serve as Chairman of the Depart- (b) Establish policy and ensure uni-
mental Executive Resources Board and form departmental implementation of
its Executive Committee. the National Environmental Policy Act
(c) Serve as the Chair of the Depart- of 1969, Pub. L. 91–190, as amended (42
ment’s Safety Council. U.S.C. 4321–4347) within the Depart-
(d) Serve as the Chair of the Depart- ment of Transportation.
ment’s Credit Council. (c) Oversee the implementation of 49
(e) Approve the establishment, modi- U.S.C. 303 (Policy on lands, wildlife and
fication, extension, or termination of: waterfowl refuges, and historic sites).
(1) Department-wide (intra-depart- (d) Represent the Secretary of Trans-
ment) committees affecting more than portation on various interagency

one program. boards, committees, and commissions
11
to include the Architectural and Trans- 40113(a) and (c); 40114(a) (relating to re-
portation Barriers Compliance Board ports and records); 40115 (relating to
and the Advisory Council on Historic the withholding of information from
Preservation and the Trade Policy Re- public disclosure) of Chapter 401 of 49
view Group and the Trade Policy Staff U.S.C.; and 40116 (relating to the Anti-
Committee. Head Tax Act);
(e) Serve as the Department’s des- (2) The following chapters of title 49,
ignated principal conservation officer U.S.C., except as related to depart-
pursuant to section 656 of the Depart- mental regulation of airline consumer
ment of Energy Organization Act, Pub. protection and civil rights which is del-
L. 94–91 [42 U.S.C. 7266], and carry out egated to the General Counsel at § 1.27:
the functions vested in the Secretary (i) Chapter 411 of title 49, U.S.C., re-
by section 656 of the Act, which per- lating to air carrier certification;
tains to planning and implementing en- (ii) Chapter 413 of title 49, U.S.C., re-
ergy conservation matters with the De- lating to foreign air transportation;
partment of Energy. (iii) Chapter 415 of title 49, U.S.C., re-
(f) Carry out the functions of the Sec- lating to pricing;
retary pertaining to aircraft with re- (iv) Chapter 417 of title 49, U.S.C., re-
spect to Transportation Order T–1 (44 lating to the operations of air carriers,
CFR chapter IV) under the Defense except sections 41721–41723;
Production Act of 1950, as amended,
(v) Chapter 419 of title 49, U.S.C. and
Pub. L. 81–774, 64 Stat. 798 [50 U.S.C.
39 U.S.C. 5402, relating to the transpor-
App. 2061 et seq.] and Executive Order
tation of mail; and
10480, as amended (see also Executive
(vi) Section 42303 of 49 U.S.C., relat-
Order 10773 and 12919).
ing to the management of the Web site
(g) Serve as Department of Transpor-
regarding the use of insecticides in pas-
tation member of the Interagency
senger aircraft.
Group on International Aviation, and
pursuant to Executive Order 11382, as (3) Section 42111 of title 49, U.S.C.
amended, serve as Chair of the Group. with respect to mutual aid agreements
(h) Serve as second alternate rep- as it relates to foreign air transpor-
resenting the Secretary of Transpor- tation;
tation to the Trade Policy Committee (4) Chapters 461 and 463 of title 49,
as mandated by Reorganization Plan U.S.C., relating to aviation investiga-
No. 3 of 1979 (5 U.S.C. App. at 1381), as tions, proceedings, and penalties under
amended, and Executive Order 12188, as Part A of Subtitle VII of title 49, U.S.C.
amended. except for those sections delegated to
(i) As supplemented by 14 CFR part the General Counsel under § 1.27, and to
385, and except as provided in §§ 1.99(j) the Federal Aviation Administrator
(RITA), and 1.27 (General Counsel) of under § 1.83;
this part, carry out the functions (5) Chapter 473 of title 49, U.S.C., re-
transferred to the Department from lating to international airport facili-
the Civil Aeronautics Board and other ties.
related functions and authority vested (6) Section 11 of the Clayton Act,
in the Secretary under the following: Pub. L. 63–212 [15 U.S.C. 21], relating to
(1) Sections 40103(a)(2) (relating to air carriers and foreign air carriers.
the consultation with the Architec- (7) Section 3 of An Act to Encourage
tural and Transportation Barriers Travel in the United States, and for
Compliance Board before prescribing other purposes, Pub. L. 76–755, 54 Stat.
regulations or procedures that will 773 [16 U.S.C. 18b].
have a significant impact on accessi- (8) Sections 108(a)(4), 621(b)(5),
bility of commercial airports for handi- 704(a)(5), and 814(b)(5) of the Consumer
capped individuals), and (c) (relating to Credit Protection Act, Pub. L. 90–321
foreign aircrafts); 40105 (relating to [15 U.S.C. 1607(a)(4), 1681s(b)(5),
international negotiations, agree- 1691c(a)(5), and 1692l(b)(5)].
ments, and obligations); 40109(a), (c), (j) Carry out the functions vested in
(g), 46301(b) (smoke alarm penalty), (d), the Secretary by 49 U.S.C. 44907(b)(1),
(f), (g) (relating to the authority to ex- (c), and (e) related to the security of
empt certain air carriers) and (h); foreign airports in coordination with
12
Office of the Secretary of Transportation § 1.25a
the General Counsel, the Federal Avia- U.S.C. 4321–4347) within the Depart-
tion Administrator, and the Assistant ment of Transportation.
Secretary for Administration. (3) Oversee the implementation of 49
(k) Carry out section 101(a)(2) of the U.S.C. 303 (Policy on lands, wildlife and
Air Transportation Safety and System waterfowl refuges, and historic sites).
Stabilization Act, Pub. L. 107–42 [49 (4) Represent the Secretary of Trans-
U.S.C. 40101 note], as delegated to the portation on various interagency
Secretary of Transportation by the boards, committees, and commissions
President pursuant to the Presidential to include the Architectural and Trans-
Memorandum dated September 25, 2001, portation Barriers Compliance Board
3 CFR, 2001 Comp., p. 911. and the Advisory Council on Historic
(l) Exercise the authority vested in Preservation and the Trade Policy Re-
the Secretary by section 11143 of the view Group and the Trade Policy Staff
Safe, Accountable, Flexible, Efficient Committee.
Transportation Equity Act: A Legacy (5) Serve as the Department’s des-
for Users, Pub. L. 109–59, 119 Stat. 1144 ignated principal conservation officer
(SAFETEA–LU), to manage the day-to- pursuant to section 656 of the Depart-
day activities associated with implement of Energy Organization Act, Pub.
mentation of section 11143 regarding L. 94–91 [ 42 U.S.C. 7266], and carry out
private activity bonds and tax-exempt the functions vested in the Secretary
financing of highway projects and rail- by section 656 of the Act, which per-
truck facilities. tains to planning and implementing en-
(m) In coordination with the General ergy conservation matters with the De-
Counsel, carry out the duties of the partment of Energy.
Secretary under Executive Orders 12866 (6) Carry out the functions of section
and 13563 to establish the values of 42303 of 49 U.S.C., relating to the man-
time and statistical life in connection agement of the Web site regarding the
with assessing the costs and benefits of use of insecticides in passenger air-
Departmental regulatory action. craft.
(n) Carry out the functions vested in (7) In coordination with the General
the Secretary by 49 U.S.C. 47129, relat- Counsel, carry out the duties of the
ing to resolution of disputes over the Secretary under Executive Orders 12866
reasonableness of fees imposed upon air and 13563 to establish the value of sta-
carriers. tistical life in connection with assess-
(o) Carry out the functions and exer- ing the costs and benefits of Depart-
cise the authority vested in the Sec- mental regulatory action.
retary by 23 U.S.C. 167(f) (National (8) Carry out the duties of the Sec-
Freight Strategic Plan). retary under Executive Orders 12866
and 13563 to establish the value of time
§ 1.25a Redelegations by the Under in connection with assessing the costs
Secretary of Transportation for Pol- and benefits of Departmental regu-
icy. latory action.
(a) The Assistant Secretary for (b) The Assistant Secretary for Avia-
Transportation Policy is redelegated tion and International Affairs is redele-
authority to: gated authority to:
(1)(i) Redelegate and authorize suc- (1)(i) Redelegate and authorize suc-
cessive redelegation of authority cessive redelegation of authority
granted in this paragraph (a) to offi- granted in this paragraph (b) to offi-
cials within the Office of the Assistant cials within the Office of the Assistant
Secretary for Transportation Policy, Secretary for Aviation and Inter-
except as limited by law or specific ad- national Affairs, except as limited by
ministrative reservation. law or specific administrative reserva-
(ii) Publish, in appendix A of this tion.
part, redelegations made under para- (ii) Publish, in appendix A of this
graph (a)(1)(i) of this section. part, redelegations made under para-
(2) Establish policy and maintain graph (b)(1)(i) of this section.
oversight of implementation of the Na- (2) Carry out the functions of the
tional Environmental Policy Act of Secretary pertaining to aircraft with

1969, Pub. L. 91–190, as amended (42 respect to Transportation Order T–1 (44
13
CFR chapter IV) under the Defense (B) Chapter 413, relating to foreign
Production Act of 1950, as amended, air transportation;
Pub. L. 81–774, 64 Stat. 798 [50 U.S.C. (C) Chapter 415, relating to pricing;
App. 2061 et seq.] and Executive Order (D) Chapter 417, relating to the oper-
10480, as amended (see also Executive ations of air carriers, except section
Order 10773 and 12919). 41721–41723;
(3) Serve as Department of Transpor- (E) Chapter 419, and 39 U.S.C. 5402, re-
tation member of the Interagency lating to the transportation of mail;
Group on International Aviation, and (iii) Section 42111 of title 49, U.S.C.
pursuant to Executive Order 11382, with respect to mutual aid agreements
serve as Chair of the Group. as it relates to foreign air transpor-
(4) Serve as second alternate rep- tation;
resenting the Secretary of Transpor- (iv) Chapters 461 and 463 of title 49,
tation to the Trade Policy Committee U.S.C., relating to aviation investiga-
as mandated by Reorganization Plan tions, proceedings, and penalties under
No. 3 of 1979 (5 U.S.C. App. at 1381), as Part A of 49 U.S.C. Subtitle VII except
amended, and Executive Order 12188. for those sections delegated to the Gen-
(5) Represent the Department of eral Counsel under § 1.27, and to the
Transportation at the Trade Policy Federal Aviation Administrator under
Committee Review Group and the § 1.83;
Trade Policy Staff Committee, which (v) Chapter 473 of title 49, U.S.C., re-
were established at 15 CFR part 2002 as lating to international airport facili-
subordinate bodies of the Trade Policy ties.
Committee. (vi) Section 11 of the Clayton Act,
(6) As supplemented by 14 CFR part Pub. L. 63–212 [15 U.S.C. 21], relating to
385, and except as provided in §§ 1.99 air carriers and foreign air carriers.
(RITA), and 1.27 (General Counsel), (vii) Section 3 of An Act to Encour-
carry out the functions transferred to age Travel in the United States, and
the Department from the Civil Aero- for other purposes, Pub. L. 76–755, 54
nautics Board and other related func- Stat. 773 [16 U.S.C. 18b].
tions and authority vested in the Sec- (viii) Sections 108(a)(4), 621(b)(5),
retary under the following provisions 704(a)(5), and 814(b)(5) of the Consumer
of Title 49, U.S.C.: Credit Protection Act, Pub. L. 90–321
(i) Sections 40103(a)(2) (relating to [15 U.S.C. 1607(a)(4), 1681s(b)(5),
the consultation with the Architec- 1691c(a)(5), and 1692l(b)(5)].
tural and Transportation Barriers (7) Carry out the functions vested in
Compliance Board before prescribing the Secretary by 49 U.S.C. 44907(b)(1),
regulations or procedures that will (c), and (e) related to the security of
have a significant impact on accessi- foreign airports in coordination with
bility of commercial airports for handi- the General Counsel, the Federal Avia-
capped individuals), and (c) (relating to tion Administrator, and the Assistant
foreign aircrafts); 40105 (relating to Secretary for Administration.
international negotiations, agree- (8) Carry out section 101(a)(2) of the
ments, and obligations); 40109(a), (c), Air Transportation Safety and System
(g), 46301(b) (smoke alarm penalty), (d), Stabilization Act, Pub. L. 107–42 [49
(f), (g) (relating to the authority to ex- U.S.C. 40101 note], as delegated to the
empt certain air carriers) and (h); Secretary of Transportation by the
40113(a) and (c); 40114(a) (relating to re- President pursuant to the Presidential
ports and records); 40115 (relating to Memorandum dated September 25, 2001,
the withholding of information from 3 CFR, 2001 Comp., p. 911.
public disclosure; and 40116 (relating to (9) Carry out the functions vested in
the Anti-Head Tax Act); the Secretary by 49 U.S.C. 47129, relat-
(ii) The following chapters of title 49, ing to resolution of disputes over the
U.S.C., except as related to depart- reasonableness of fees imposed upon air
mental regulation of airline consumer carriers.
protection and civil rights which is del-
egated to the General Counsel at § 1.27: § 1.26 General Counsel.
(A) Chapter 411, relating to air car- The General Counsel is the chief
rier certification; legal officer of the Department, legal
14
advisor to the Secretary, and final au- or procedure prescribed by the regula-
thority within the Department on tions of the Office of the Secretary (49
questions of law. The Office of the Gen- CFR part 9) with respect to the testi-
eral Counsel provides legal advice to mony of OST employees as witnesses in
the Secretary and secretarial offices, legal proceedings, the serving of legal
and supervision, coordination, and re- process and pleadings in legal pro-
view of the legal work of the Chief ceedings involving the Secretary or his
Counsel Offices in the Department. The Office, and the production of records of
General Counsel participates with each that Office pursuant to subpoena.
Operating Administrator in the per- (e) Respond to petitions for rule-
formance reviews of Chief Counsel. The making or petitions for exemptions in
General Counsel is responsible for re- accordance with 49 CFR 5.13(c) (Proc-
tention of outside counsel, and for the essing of petitions), and notify peti-
approval of the hiring and promotion of tioners of decisions in accordance with
departmental attorneys (other than in 49 CFR 5.13(d).
the Federal Aviation Administration). (f) Provide counsel to employees on
The General Counsel is also responsible questions of conflict of interest cov-
for departmental regulation under ered by departmental regulations on
statutes including the Air Carrier Ac- employee responsibility and conduct.
cess Act, statutes prohibiting unfair (g) Coordinate the issuance of pro-
and deceptive practices in air transpor- posed Executive Orders and proclama-
tation, the Americans with Disabilities tions for transmittal to the Office of
Act, the Disadvantaged Business En- Management and Budget for action by
terprise program, and the Uniform the White House.
Time Act. The General Counsel coordi- (h) Except with respect to pro-
nates all international legal matters, ceedings relating to safety fitness of an
and departmental participation in pro- applicant (49 U.S.C. 307), decide on re-
ceedings before other federal and state quests to intervene or appear before
agencies. The General Counsel provides courts (with the consent of the Depart-
oversight of departmental litigation, ment of Justice) or agencies to present
regulation, legislation, Freedom of In- the views of the Department, subject to
formation Act compliance, and admin- the concurrence of the Secretary.
istrative enforcement. (i) Exercise the authority delegated
to the Department by the Assistant At-
§ 1.27 Delegations to the General torney General, Land and Natural Re-
Counsel. sources Division, in his order of Octo-
The General Counsel is delegated au- ber 2, 1970, to approve the sufficiency of
thority to: the title to land being acquired by pur-
(a) Conduct all rulemaking pro- chase or condemnation by the United
ceedings under the Americans with States for the use of the Department.
Disabilities Act, the Disadvantaged (See also Appendix 1 relating to delega-
Business Enterprise program, and the tions to Operating Administration
Uniform Time Act, as amended (15 Chief Counsel).
U.S.C. 260 et seq.). (j) Exercise the Secretary’s authority
(b) Determine the practicability of under 28 U.S.C. 2672 and 28 CFR part 14,
applying the standard time of any related to the administrative disposi-
standard time zone to the movements tion of federal tort claims, for claims
of any common carrier engaged in involving the Office of the Secretary.
interstate or foreign commerce and (k) Compromise, suspend collection
issue operating exceptions in any case action on, or terminate claims of the
in which the General Counsel deter- United States that are referred to, or
mines that it is impractical to apply arise out of the activities of the Office
the standard time (49 CFR 71.1). of the Secretary of Transportation.
(c) Issue regulations making edi- (l) Conduct coordination with foreign
torial changes or corrections to the governments under section 118 of the
regulations of the Office of the Sec- Deep Seabed Hard Mineral Resources
retary. Act (30 U.S.C. 1428).
(d) Grant permission, under specific (m) Exercise review authority under
circumstances, to deviate from a policy 49 U.S.C. 41307 (related actions about
15
§ 1.27a 49 CFR Subtitle A (10–1–19 Edition)
foreign air transportation) delegated to (Pub. L. 98–443) [15 U.S.C. 1607(a)(4),

the Secretary by the President in Exec- 1681s(b)(5), 1691c(a)(5) and 1692l(b)(5)].
utive Order 12597. (r) Administer 5 U.S.C. 552 (FOIA)
(n) Assist and protect consumers in and 49 CFR part 7 (Public Availability
their dealings with the air transpor- of Information) in connection with the
tation industry and conduct all depart- records of the Office of the Secretary
mental regulation of airline consumer and issue procedures to ensure uniform
protection and civil rights pursuant to departmental implementation of stat-
chapters 401 (General Provisions), 411 utes and regulations regarding public
(Air Carrier Certificates), 413 (Foreign access to records.
Air Transportation), 417 (Operations of (s) Prepare reports by carriers on in-
Carriers), and 423 (Passenger Air Serv- cidents involving animals during air
ice Improvements) of title 49 U.S.C. transport pursuant to 49 U.S.C. 41721.
(o) Carry out the functions vested in (t) Exercise authority vested in the
the Secretary by 49 U.S.C. 40119(b) (Se- Secretary by the Federal Civil Pen-
curity and research and development alties Inflation Adjustment Act of 1990
activities), as implemented by 49 CFR (Pub. L. 101–410, 104 Stat. 890), as
part 15 (Protection of Sensitive Secu- amended by the Debt Collection Im-
rity Information), in consultation and provement Act of 1996 (Pub. L. 104–134,
coordination with the Office of Intel- 110 Stat. 1321), to promulgate rules that
ligence, Security and Emergency Re- adjust civil penalties with respect to
sponse. aviation enforcement.
(p) Appear on behalf of the Depart- (u) In coordination with the Under
ment on the record in hearing cases, Secretary, to carry out the duties of
and initiate and carry out enforcement the Secretary under Executive Orders
actions on behalf of the Department, 12866 and 13563 to establish the value of
under the authority transferred to the statistical life in connection with as-
Department from the Civil Aeronautics sessing the costs and benefits of De-
Board as described in §§ 1.25 and 1.25a partmental regulatory action.
(delegations to and redelegations by (v) Approve the initiation of regu-
the Under Secretary), and 1.99 (RITA). latory action, as defined in Executive
This includes the authority to com- Order 12866, by Secretarial offices and
promise penalties under 49 U.S.C. 46301 Operating Administrations in the event
(civil penalties); to issue appropriate that the Deputy Secretary is absent or
orders, including cease and desist or- otherwise unavailable to exercise such
ders, under 49 U.S.C. 46101 (complaints authority (see § 1.23(h)).
and investigations); and to require the (w) Approve requests to reclassify
production of information, under 49 rulemakings as non-significant under
U.S.C. 41708, enter carrier property and DOT procedures.
inspect records, under 49 U.S.C. 41709,
and inquire into the management of § 1.27a Delegations to the Career Dep-
the business of a carrier under 49 uty General Counsel.
U.S.C. 41711 (Air carrier management The career Deputy General Counsel is
inquiry and cooperation with other au- delegated authority to:
thorities), as appropriate to the en- (a) Serve as the Department’s Des-
forcement responsibilities. In the event ignated Agency Ethics Official in ac-
that such an enforcement matter cordance with 5 CFR 2638.202;
comes before the Secretary of Trans- (b) Serve as the Department’s Dis-
portation for adjudication, the Deputy pute Resolution Specialist pursuant to
General Counsel shall advise the Sec- section 3(b) of the Alternative Dispute
retary. Resolution Act of 1996, Pub. L. 104–320,
(q) Initiate and carry out enforce- 5 U.S.C. App.; and
ment actions relating to: (c) Serve as the Department’s Chief
(1) Foreign airport security on behalf FOIA Officer under 5 U.S.C. 552(j).
of the Department under 49 U.S.C.
44907; and § 1.27b Delegations to the Assistant
(2) The Consumer Credit Protection General Counsel for General Law.
Act under section 4(a)(5) of the Civil The Assistant General Counsel for
Aeronautics Board Sunset Act of 1984 General Law is delegated authority to
16
serve as the Department’s Alternate energy, environmental, disability, and

Agency Ethics Official in accordance safety policy and program development
with 5 CFR 2638.202. and review; and transportation infra-
structure assessment and review. For
§ 1.30 Assistant Secretaries. delegations to the Assistant Secretary
(a) In performing their functions, the for Transportation Policy, see
Assistant Secretaries are responsible § 1.25a(a).
for continuing liaison and coordination
among themselves and with the Oper- § 1.32 Assistant Secretary for Aviation
ating Administrations to: and International Affairs.
(1) Avoid unnecessary duplication of The Office of the Assistant Secretary
effort by or in conflict with the per- for Aviation and International Affairs
formance of similar activities by the
is responsible for policy development,
Operating Administrations and the
coordination, and evaluation of issues
other Assistant Secretaries pursuant
involving aviation, as well as inter-
to their Secretarial delegations of au-
thority or other legal authorities; and national issues involving all areas of
(2) Assure that the views of the Oper- transportation; private sector evalua-
ating Administrations are considered tion; international transportation and
in developing departmental policies, transport-related trade policy and
plans, and proposals. The Assistant issues; regulatory and legislative ini-
Secretaries are also available to assist, tiatives and review of maritime/ship-
as appropriate, the Operating Adminis- building policies and programs; trans-
trations in implementing departmental port-related trade promotion; coordi-
policy and programs. As primary staff nation of land transport relations with
advisors to the Secretary, the Assist- Canada and Mexico; economic regula-
ant Secretaries are concerned with tion of the airline industry while plac-
transportation matters of the broadest ing maximum reliance on market
scope, including modal, intermodal, forces and on actual and potential com-
and other matters of Secretarial inter- petition; the essential air service pro-
est. gram and other rural air service pro-
(b) There are exceptions to the nor- grams; and, in coordination with the
mal staff role described in paragraph FAA, promotion of the aerospace in-
(a) of this section. In selected industry. For delegations to the Assist-
stances, the Secretary has specifically ant Secretary for Aviation and Inter-
delegated to Assistant Secretaries au- national Affairs, see § 1.25a(b).
thority which they may exercise on the
Secretary’s behalf. § 1.33 Chief Financial Officer and As-
sistant Secretary for Budget and
§ 1.31 Assistant Secretary for Trans- Programs.
portation Policy.
(a) The Chief Financial Officer (CFO)
The Assistant Secretary for Trans- is the principal budget and financial
portation Policy provides policy advice
advisor to the Secretary and serves as
to the Secretary, the Deputy Sec-
Assistant Secretary for Budget and
retary, and the Under Secretary. The
Programs. The CFO and Assistant Sec-
Office of the Assistant Secretary for
retary for Budget and Programs pro-
Transportation Policy is responsible
for: Public policy development, coordi- vides oversight and policy guidance for
nation, and evaluation for all aspects all budget, financial management, pro-
of transportation, except in the areas gram performance, and internal con-
of aviation and international affairs, trol activities of the Department and
with the goal of making the Nation’s its Operating Administrations.
transportation resources function as an (b) The CFO and Assistant Secretary
integrated national system; evaluation for Budget and Programs concurs in
of private transportation sector oper- the appointment and promotion of
ating and economic issues; evaluation Chief Financial Officers, Budget Offi-
of public transportation sector oper- cers, and Directors of Finance of the
ating and economic issues; regulatory Department and its Operating Admin-
and legislative initiatives and review; istrations, and participates with each
17
Administrator in the performance re- Office of Budget and Program Perform-

views of Chief Financial Officers, Budg- ance, the Office of the OST Chief Fi-
et Officers, and Directors of Finance in nancial Officer, the Office of Financial
each of the Operating Administrations. Management, and the Office of Credit
(c) The CFO and Assistant Secretary Oversight and Risk Management.
for Budget and Programs, in consulta- (c) Direct and manage the Depart-
tion with the Chief Information Offi- mental planning, evaluation, budget,
cer, may designate any information financial management, and internal
technology system as a financial man- control activities.
agement system under the CFO’s pol- (d) Exercise oversight and provide ex-
icy and oversight area of responsi- clusive policy guidance to the Enter-
bility. prise Services Center (ESC) regarding
(d) The CFO and Assistant Secretary all financial management activities
for Budget and Programs serves as the conducted by ESC and financial sys-
Vice Chair of the Department’s Credit tems operated by ESC. This authority
Council. The Office of the Assistant includes concurrence with any organi-
Secretary supports the Department’s zational changes within the Federal
Credit Council by analyzing applica- Aviation Administration that may af-
tions for the Department’s various fect financial management operations
credit programs. The CFO also oversees of the ESC.
the TIFIA program and the TIFIA (e) Request apportionment or re-
Joint Program Office on behalf of the apportionment of funds by the Office of
Secretary, including the evaluation of Management and Budget, provided that
individual projects, and provides over- no request for apportionment or re-
all policy direction and program deci- apportionment which anticipates the
sions for the TIFIA program. need for a supplemental appropriation
(e) The CFO and Assistant Secretary shall be submitted to the Office of
for Budget and Programs is responsible Management and Budget without ap-
for preparation, review, and presen- propriate certification by the Sec-
tation of Department budget esti- retary.
mates; liaison with the Office of Man- (f) Issue allotments or allocations of
agement and Budget and Congressional funds to components of the Depart-
Budget and Appropriations Commit- ment.
tees; preparation of the Department’s (g) Authorize and approve official
annual financial statements; depart- travel and transportation for staff
mental financial plans, apportion- members of the Immediate Office of
ments, reapportionments, the Secretary including authority to
reprogrammings, and allotments; pro- sign and approve related travel orders
gram and systems evaluation and anal- and travel vouchers, but not including
ysis; program evaluation criteria; pro- requests for overseas travel.
gram resource plans; analysis and re- (h) Issue monetary authorizations for
view of legislative proposals and one- use of reception and representation
time reports and studies required by funds.
Congress; and budget and financial (i) Except as otherwise delegated, es-
management relating to the Office of tablish or operate or both, any special
the Secretary. funds that are required by statute or
administrative determination.
§ 1.34 Delegations to the Chief Finan- (j) Exercise the Secretary’s authority
cial Officer and Assistant Secretary under 31 U.S.C. 3711 to collect, com-
for Budget and Programs. promise, suspend collection action on,
The Chief Financial Officer and As- or terminate claims of the United
sistant Secretary for Budget and Pro- States which are referred to, or arise
grams is delegated authority to: out of the activities of, the Office of
(a) Serve as the Department’s Chief the Secretary (excluding claims per-
Financial Officer pursuant to 31 U.S.C. taining to the Working Capital Fund),
901 (Establishment of Agency Chief Fi- subject to the limits on that authority
nancial Officers). imposed by 31 U.S.C. 3711 and the Fed-
(b) Exercise day-to-day operating eral Claims Collection Standards, 31

management responsibility over the CFR chapter IX.
18
(k) Exercise the Secretary’s author- fully implemented by the Department;

ity under the Improper Payments and works with the White House, other
Elimination and Recovery Act of 2010 Federal agencies, and Congress to ful-
(Pub. L. 111–204) (33 U.S.C. 3301 note). fill the Department’s legislative prior-
(l) Exercise the Secretary’s authority ities. The Assistant Secretary coordi-
under the Improper Payments Informa- nates congressional and intergovern-
tion Act of 2002 (Pub. L. 107–300) (31 mental activities with governmental
U.S.C. 3321 note). affairs offices in the Operating Admin-
(m) Exercise the Secretary’s author- istrations and is the final authority on
ity under the Recovery Auditing Act governmental affairs issues within the
(Section 831, Defense Authorization Department. The Assistant Secretary
Act for FY 2002 (Pub. L. 107–107)).
participates with each Administrator
(n) Exercise the Secretary’s author-
in the hiring decisions (other than in
ity under the Federal Financial Man-
agement Improvement Act of 1996 (31 the Federal Aviation Administration)
U.S.C. 3512 note). and performance reviews of all of the
(o) Exercise the Secretary’s author- Operating Administrations’ Directors
ity under Federal Managers’ Financial of Governmental Affairs. The Assistant
Integrity Act of 1982 (FMFIA) (31 Secretary supervises the Deputy As-
U.S.C. 3512 note). sistant Secretary for Tribal Govern-
(p) Exercise the Secretary’s author- ment Affairs who plans and coordinates
ity under the Accounting and Auditing the Department’s policies and pro-
Act of 1950 (31 U.S.C. 3512), as amended grams with respect to Indian tribes and
by FMFIA. tribal organizations.
(q) Exercise the Secretary’s author-
[82 FR 19192, Apr. 26, 2017]
ity under the Government Performance
and Results Act (GPRA) (Pub. L. 103– § 1.36 Delegations to the Assistant Sec-
623). retary for Governmental Affairs.
(r) Exercise the Secretary’s authority
under the Accountability of Tax Dol- The Assistant Secretary for Govern-
lars Act of 2002, 31 U.S.C. 3515. mental Affairs is delegated authority
(s) Exercise the Secretary’s authority to:
under the Government Management (a) Establish procedures for respond-
Reform Act of 1994 (GMRA) (Pub. L. ing to Congressional correspondence;
103–356). and
(t) Exercise the Secretary’s authority (b) Supervise the Deputy Assistant
under 5 U.S.C. 5584 and the OMB memo- Secretary for Tribal Government Af-
randum, ‘‘Determination with Respect fairs.
to Transfer of Functions Pursuant to
Public Law 104–316’’ (December 17, 1996) § 1.37 Assistant Secretary for Adminis-
to waive claims of the United States tration.
arising out of an erroneous payment to The Assistant Secretary for Adminis-
an employee of pay or allowances, or tration is the principal advisor to the
travel, transportation, or relocation
Secretary and Deputy Secretary on De-
expenses and allowances, and deny re-
partment-wide administrative matters
quests for waiver of such claims.
(u) Serve as the Department’s Per- and is the final authority on these
formance Improvement Officer under 31 matters within the Department. The
U.S.C. 1124. Assistant Secretary for Administration
serves as the Designated Agency Safety
§ 1.35 Assistant Secretary for Govern- and Health Official. The Office of the
mental Affairs. Assistant Secretary for Administra-
The Assistant Secretary for Govern- tion’s responsibilities include: Stra-
mental Affairs serves as the Depart- tegic management of human capital;
ment’s primary point of contact for monitoring the progress of depart-
Congressional offices, as well as State mental offices related to sustainability
and locally elected officials; works goals; controls and standards to ensure
with other departmental offices to en- that procurement and financial assist-
sure that Congressional mandates are ance programs are in accord with good
19
business practice; follow-up and resolu- (6) Serve as Deputy Chief Acquisition
tion of Government Accountability Of- Officer.
fice and Inspector General audit re- (7) Provide departmental guidance on
views; information resource manage- grants, cooperative agreements, and
ment; property management informa- other financial assistance transactions,
tion; facilities; and security. The As- but not including loans, loan guaran-
sistant Secretary for Administration is tees, interest subsidies, or insurance.
responsible for recommending perform- (8) Issue departmental procurement
ance objectives for the Operating Ad- regulations, subject to coordination
ministrations’ Directors of Human Re- with the General Counsel and inter-
sources. The Assistant Secretary for ested Operating Administrations. In
Administration participates with each commenting upon proposed provisions
Administrator in the hiring decisions for the procurement regulations, the
(other than in the Federal Aviation Ad- Operating Administrations will indi-
ministration) and performance reviews cate the nature and purpose of any ad-
of all of the Operating Administra- ditional implementing or
tions’ Associate Administrators for Ad- supplementing policy guidance which
ministration. they propose to issue at the Operating
Administration level.
[82 FR 19192, Apr. 26, 2017]
(b) Personnel. (1) Conduct a personnel
§ 1.38 Delegations to the Assistant Sec- management program for the Office of
retary for Administration. the Secretary of Transportation, with
authority to take, direct others to
The Assistant Secretary for Adminis- take, recommend or approve any per-
tration is delegated authority for the sonnel action with respect to such au-
following: thority.
(a) Acquisition. (1) Exercise procure- (2) Serve as Vice Chair of the Depart-
ment authority with respect to re- mental Executive Resources Board.
quirements of the Office of the Sec- (3) Exercise emergency authority to
retary or an Operating Administration, hire without the prior approval of the
if requested under an agreement with Deputy Secretary normally required by
that Operating Administration. departmental procedures implementing
(2) Make the required determinations general employment limitations when
with respect to mistakes in bids rel- in the judgment of the Assistant Sec-
ative to sales of personal property con- retary immediate action is necessary
ducted by the Office of the Secretary to effect the hire and avoid the loss of
without power of redelegation. a well-qualified job applicant, and for
(3) Except as delegated to the Na- similar reasons.
tional Highway Traffic Safety Admin- (4) Review proposals of the Office of
istrator by § 1.95, carry out the func- the Secretary for each new appoint-
tions vested in the Secretary by sec- ment or transfer to verify the essen-
tion 3 of Executive Order 11912 (‘‘Dele- tiality of the position.
gation of Authorities Relating to En- (5) Approve employment of experts
ergy Policy and Conservation’’), as and consultants in accordance with 5
amended. U.S.C. 3109.
(4) Carry out the functions delegated (6) Provide policy and overall direc-
to the Secretary from time to time by tion in the execution of the DOT
the Administrator of General Services Labor-Management Relations Pro-
to lease real property for Department gram.
use. (7) Develop and operate the Federal
(5) Carry out the duties and respon- Employee Workplace Drug and Alcohol
sibilities of agency head for depart- Testing Program in accordance with
mental procurement within the mean- Executive Order 12564 and The Omnibus
ing of the Federal Acquisition Regula- Transportation Employee Testing Act
tion. This authority as agency head for of 1991, Public Law 102–143, Title V.
departmental procurement excludes (8) Serve as the Chief Human Capital
duties, responsibilities, and powers ex- Officer:
pressly reserved for the Secretary of (i) Oversee, direct, and execute all
Transportation. authorities included in the Chief
20
Human Capital Officers Act of 2002 (5 security, technical security, and classi-
U.S.C. 1401 et seq.); and fied and sensitive information manage-
(ii) Advise the Secretary on the De- ment.
partment’s human capital needs and (4) Issues identification media as di-
obligations, and implement all related rected by Homeland Security Presi-
rules and regulations of the President dential Directive 12, ‘‘Policy for Com-
and the Office of Personnel Manage- mon Identification Standard for Fed-
ment, and all laws governing human eral Employees and Contractors’’ and
resource management. other identification media (including
(9) Serve as the Telework Managing credentials, passports and visas) by di-
Officer under 5 U.S.C. 6505. rection of the Secretary.
(c) Sustainability. (1) Responsible for (5) Manages the Department’s classi-
ensuring that the Department meets fied information program as directed
its sustainability goals pursuant to the by Executive Order 13526 (‘‘Classified
Energy Independence and Security Act National Security Information’’).
(EISA) of 2007 (Pub. L. 110–140); the En- (6) Takes certain classified actions
ergy Policy Act of 2005 (Pub. L. 109–58); on behalf of the Department in connec-
and Executive Order 13693 (‘‘Planning tion with technical counter-surveil-
for Federal Sustainability in the Next lance programs as required by Execu-
Decade’’). tive Order 13526 (‘‘Classified National
(2) Serve as the Chief Sustainability Security Information’’).
Officer under Executive Order 13693. (7) In conjunction with the Office of
(d) Finance. (1) Settle and pay claims Security, Intelligence and Emergency
by employees of the Office of the Sec- Response, and the Office of the General
retary for personal property losses as Counsel, carries out the functions vest-
provided by 31 U.S.C. 3721. ed in the Secretary by 49 U.S.C.
(2) Oversee the Working Capital Fund 40119(b), as implemented by 49 CFR
for the Office of the Secretary, estab- part 15, related to the protection of in-
lished by 49 U.S.C. 327. formation designated as Sensitive Se-
(3) Exercise the Secretary’s authority curity Information.
under 31 U.S.C. 3711 to collect, com- (8) Ensure Department-wide compli-
promise, suspend collection action on, ance with Executive Orders 12968 as
or terminate claims of the United amended, 13467, 13488, 13526, 13556, and
States which are referred to, or arise related regulations and issuances.
out of the activities of the Working (f) Printing. Request approval of the
Capital Fund, subject to the limits on Joint Committee on Printing, Congress
that authority imposed by 31 U.S.C. of the United States, for any procure-
3711 and the Federal Claims Collection ment or other action requiring Com-
Standards, 31 CFR chapter IX. mittee approval.
(e) Security. (1) Serves as the agency (g) Hearings. Provide logistical and
representative appointed by the Sec- administrative support to the Depart-
retary of Transportation to participate ment’s Office of Hearings.
on the Interagency Security Com- (h) Federal real property management.
mittee in accordance with Executive Carry out the functions assigned to the
Order 12977, to establish policies for the Secretary with respect to Executive
security in and protection of Federal Order 13327, as amended.
facilities. (i) The Uniform Act. Carry out the
(2) Represents the department on the functions vested in the Secretary to
White House Communications Agency implement the Uniform Relocation As-
Principal Communications Working sistance and Real Property Acquisition
Group and the Department of State Act of 1970 (Uniform Act), 42 U.S.C.
Overseas Security Policy Board. Chapter 61, with respect to programs
(3) Conducts an internal security administered by the Office of the Sec-
management program for the Depart- retary. The Assistant Secretary may
ment of Transportation with authority prescribe additional Uniform Act guid-
to take, direct others to take, rec- ance that is appropriate to those par-
ommend, or approve security actions ticular programs, provided that such
with respect to such authorities re- additional guidance must be consistent

lated to personnel security, physical with the Uniform Act and 49 CFR part
21
24. The lead agency for Uniform Act mentation, and management. The na-
matters is the Federal Highway Ad- ture and frequency of interactions with
ministration (see § 1.85 and 49 CFR part the CAO will be determined mutually
24). between the SPE and the CAO.
(j) Designated Agency Safety and (3) Procure and authorize payment
Health Official. Serve as the Designated for property and services for the Office
Agency Safety and Health Official of the Secretary, with power to re-dele-
under 29 CFR 1960.6(a) to represent the gate and authorize successive re-dele-
interest of, and support, the Depart- gations.
ment’s occupational safety and health (b) The Director of Human Resources
program. Management is redelegated the author-
(k) Senior Real Property Officer. Serve ity to:
as the Senior Real Property Officer for (1) Develop departmental human cap-
the Department pursuant to Executive ital policies and objectives, and mon-
Order 13327 (‘‘Federal Real Property itor and oversee the implementation of
Asset Management’’) (as amended), and those policies.
chair the Departmental Real Property (2) Establish departmental human
Planning Council. capital performance objectives and
(l) Transportation fringe benefits. (1) metrics.
Oversee the Department’s transpor- (3) Conduct a personnel management
tation fringe benefit program under 5 program for the Office of the Secretary
U.S.C. 7905 and 26 U.S.C. 132(f). with authority to take, direct others to
(2) Consult with and provide guidance take, recommend or approve any per-
to other Federal agencies on transpor- sonnel action with respect to such au-
tation fringe benefit programs under 5 thority.
U.S.C. 7905 and 26 U.S.C. 132(f).
(4) Concur in the appointment and
(3) Establish and maintain uniform
promotion of all Human Resources
Federal Government standards for de-
(HR) Directors in each Operating Ad-
veloping and supporting Federal agen-
ministration and participate in the
cies’ transportation fringe benefit pro-
performance reviews of HR Directors.
grams under 5 U.S.C. 7905 and 26 U.S.C.
(5) Provide policy and overall direc-
132(f).
tion in the execution of the DOT
§ 1.38a Redelegations by the Assistant Labor-Management Relations Pro-
Secretary for Administration. gram.
(a) The Director, Office of the Senior (6) Develop and operate the Federal
Procurement Executive is redelegated Employee Workplace Drug and Alcohol
the authority to: Testing Program in accordance with
(1) Carry out the duties and respon- Executive Order 12564 and The Omnibus
sibilities of agency head for depart- Transportation Employee Testing Act
mental procurement within the mean- of 1991, Public Law 102–143, Title V.
ing of the Federal Acquisition Regula- (7) Develop, coordinate, and issue
tion except for those duties expressly wage schedules for Department em-
reserved for the Secretary of Transpor- ployees under the Federal Wage Sys-
tation. tem.
(2) Carry out the functions of the (c) The Director of Financial Man-
Chief Acquisition Officer (CAO) except agement within the Office of the As-
for those functions specifically resistant Secretary for Administration is
served for the Deputy Secretary. In redelegated the authority to:
carrying out these functions and in (1) Settle and pay claims by Working
support of requirements under Services Capital Fund employees for personal
Acquisition Reform Act (SARA), en- property losses as provided by 31 U.S.C.
acted as part of the National Defense 3721 if the amount of the payment does
Authorization Act for 2004—Public Law not exceed $500.
108–136, the Senior Procurement Execu- (d) The Director, Transit Benefit Pro-
tive (SPE) is expected to interact di- gram is redelegated the authority to:
rectly, and without intervening au- (1) Oversee the Department’s trans-
thority, with the CAO on issues related portation fringe benefit program under
to strategic acquisition policy, imple- 5 U.S.C. 7905 and 26 U.S.C. 132(f).
22
(2) Consult with and provide guidance § 1.41 Delegations to the Director of
to other Federal agencies on transpor- the Departmental Office of Civil
tation fringe benefit programs under 5 Rights.
U.S.C. 7905 and 26 U.S.C. 132(f). The Director of the Departmental Of-
(3) Establish and maintain uniform fice of Civil Rights is delegated author-
Federal Government standards for de- ity to conduct all stages of the formal
veloping and supporting Federal agen- employment discrimination complaints
cies’ transportation fringe benefit pro- process (including acceptance/dis-
grams under 5 U.S.C. 7905 and 26 U.S.C. missal, investigation, and final adju-
132(f). dication); to provide guidance to the
Operating Administrations and Secre-
§ 1.39 Executive Secretariat. tarial officers concerning the imple-
The Executive Secretariat provides mentation and enforcement of all civil
organized staff services to the Sec- rights laws, regulations and Executive
retary and Deputy Secretary to assist Orders for which the Department is re-
sponsible; to otherwise perform activi-
them in carrying out their manage-
ties to ensure compliance with external
ment functions and their responsibil-
civil rights programs; and to review
ities for formulating, coordinating and
and evaluate the Operating Adminis-
communicating major policy decisions. trations’ enforcement of these authori-
The Office controls and coordinates in- ties. These authorities include:
ternal and external material directed (a) Title VI and VII of the Civil
to the Secretary and Deputy Secretary Rights Act of 1964, 42 U.S.C. 2000d et
and ensures that their decisions and in- seq. and 2000e et seq.
structions are implemented. (b) Sections 501 and 504 of the Reha-
bilitation Act of 1973, 29 U.S.C. 791 and
§ 1.40 Departmental Office of Civil
Rights. 794–794a.
(c) Age Discrimination in Employ-
The Departmental Office of Civil ment Act of 1967, 29 U.S.C. 621 et seq.
Rights serves as the Department’s (d) Age Discrimination Act of 1975, 42
Equal Employment Opportunity (EEO) U.S.C. 6101 et seq.
Officer and Title VI Coordinator. The (e) Americans with Disabilities Act
Director also serves as principal advi- of 1990, 42 U.S.C. 12101–121213.
sor to the Secretary and the Deputy (f) ADA Amendments Act of 2008
Secretary on the civil rights and non- (Pub. L. 110–325) [42 U.S.C. 12101 Note].
discrimination statutes, regulations, (g) Genetic Information Non-
and Executive Orders applicable to the discrimination Act of 2008, 42 U.S.C.
Department, including titles VI and 2000ff et seq.
VII of the Civil Rights Act of 1964, as (h) Equal Pay Act of 1963, 29 U.S.C.
amended, the Age Discrimination in 206(d).
Employment Act of 1967, as amended, (i) Alcohol, Drug Abuse, and Mental
the Age Discrimination Act of 1975, as Health Administration Reorganization
amended, section 504 of the Rehabilita- Act (Pub. L. 102–321)
tion Act of 1973, as amended, the Amer- (j) Chapter XIV of subtitle B, of title
icans with Disabilities Act of 1990, the 29 of the CFR (Equal Employment Op-
Equal Pay Act of 1963, the ADA Amend- portunity Commission Regulations).
ments Act of 2008, and the Genetic In- (k) Title VIII of the Civil Rights Act
formation Nondiscrimination Act of of 1968 (Pub. L. 90–284) [42 U.S.C. 3601 et
2008. The Departmental Office of Civil seq.].
Rights provides guidance to the Oper- (l) 40 U.S.C. 476 (prohibition on sex
ating Administrations and Secretarial discrimination).
officers on these matters. The Office (m) Title IX of the Education Amend-
periodically reviews and evaluates the ments of 1972, 20 U.S.C. 1681.
civil rights programs of the Operating (n) In coordination with the Assist-
Administrations to ensure that recipi- ant Secretary for Transportation Pol-
ents of financial assistance meet appli- icy, Executive Order 12898 (‘‘Federal
cable Federal civil rights require- Actions to Address Environmental Jus-

ments. tice in Minority Populations and Low-
23
Income Populations’’) (See also Execu- rity requirements with the safety, mo-
tive Order 12948). bility and economic needs of the Na-
(o) 49 U.S.C. 306 (prohibition on dis- tion through effective intelligence, se-
crimination in programs receiving fi- curity, preparedness and emergency re-
nancial assistance), 5310 (transpor- sponse programs. The Director is the
tation for elderly persons and persons Department’s principal Emergency Co-
with disabilities), 5332 (nondiscrimina- ordinator for the implementation of
tion in mass transportation), 41705 (dis- these programs.
crimination by air carriers against
handicapped persons), 47113 (minority § 1.45 Delegations to the Director of
and disadvantaged business participa- the Office of Intelligence, Security
tion), and 47123 (nondiscrimination in and Emergency Response.
airport improvement programs). The Director of Intelligence, Secu-
(p) 23 U.S.C. 324 and 402(b)(1)(D) (non- rity, and Emergency Response is dele-
discrimination in highway programs). gated authority to:
(q) The Intermodal Surface Transpor- (a) Carry out the functions related to
tation Efficiency Act of 1991, Public emergency preparedness and response
Law 102–240, 105 Stat. 1919, section 1003. vested in the Secretary by the fol-
§ 1.42 Office of Small and Disadvan- lowing authorities: 49 U.S.C. 101 and
taged Business Utilization. 301; Executive Order 12148, as amended
(‘‘Federal Emergency Management’’);
The Director of the Office of Small Executive Order 12656 (‘‘Assignment of
and Disadvantaged Business Utiliza- Emergency Preparedness Responsibil-
tion ensures that the Department’s ities’’) (as amended; see Executive
small and disadvantaged business poli- Order 13286); Executive Order 12742
cies and programs are developed in a (‘‘National Security Industrial Respon-
fair, efficient, and effective manner.
siveness’’); Executive Order 13434 (‘‘Na-
The Office is responsible for the De-
tional Security Professional Develop-
partment’s implementation and execu-
ment’’); Reorganization Plan No. 3 of
tion of the functions and duties under
1978 (5 U.S.C. app at 235 (2012); and such
the Small Business Act, and providing
other statutes, executive orders, and
opportunities, technical assistance,
other directives as may pertain to
and financial services to the small and
emergency preparedness and response.
disadvantaged business community.
(b) Serve as the Department’s Con-
§ 1.43 Delegations to the Director of tinuity Coordinator in accordance with
the Office of Small and Disadvan- National Security Presidential Direc-
taged Business Utilization. tive 51/Homeland Security Presidential
The Director of Small and Disadvan- Directive 20, National Continuity Policy,
taged Business Utilization is delegated and Federal Continuity Directives
authority to: (FCD) 1 Federal Executive Branch Na-
(a) Exercise departmental responsi- tional Continuity Program and Require-
bility for the implementation and exe- ments and FCD 2 Federal Executive
cution of functions and duties under Branch Mission Essential Function and
sections 2[8] and 2[15] of the Small Primary Mission Essential Function Iden-
Business Act (Pub. L. 85–836) [15 U.S.C. tification and Submission Process. Pro-
637 and 644]. vide leadership for departmental pro-
(b) Carry out the functions vested in grams pertaining to intelligence re-
the Secretary by 49 U.S.C. 332 (Minor- lated to the transportation sector,
ity Resource Center). transportation security policy, and
civil transportation emergency pre-
§ 1.44 Office of Intelligence, Security paredness and response activities.
and Emergency Response. (c) Lead departmental collaboration
The Director of the Office of Intel- efforts with the Department of Home-
ligence, Security and Emergency Re- land Security and other Departments
sponse is responsible for the develop- and Agencies related to transportation
ment, coordination, and execution of security and transportation infrastruc-
plans and procedures for the Depart- ture protection as required by Home-
ment to balance transportation secu- land Security Presidential Directive 7,
24
Critical Infrastructure Identification, (n) Lead departmental efforts for all

Prioritization, and Protection. interaction with the Program Manager,
(d) Together with the Assistant Sec- Information Sharing Environment to
retary for Administration, carry out include appointing the Associate Direc-
oversight and management of the du- tor for Intelligence as the DOT Infor-
ties pertaining to national security mation Sharing Program Manager to
professional development assigned to coordinate day-to-day Information
the Secretary under Executive Order Sharing Environment matters.
13434 (‘‘National Security Professional (o) Carry out departmental respon-
Development’’). sibilities under Executive Order 13587
(e) Together with the Office of the (‘‘Structural Reforms to Improve the
Assistant Secretary for Aviation and Security of Classified Networks and
International Affairs, coordinate the the Responsible Sharing and Safe-
Department’s responsibilities under guarding of Classified Information’’)
National Security Presidential Direc- including overseeing classified infor-
tive 44, Management of Interagency Ef- mation sharing and safeguarding ef-
forts Concerning Reconstruction and Sta- forts for DOT. Oversee the day-to-day
bilization, and Presidential Decision Di- activities for monitoring the Top Se-
rective 56, Managing Complex Contin- cret and Secret classified network used
gency Operations, pertaining to inter- by DOT and function as the Senior Of-
agency reconstruction and stabiliza- ficial principally responsible for estab-
tion assistance. lishing and implementing the DOT In-
(f) Lead departmental efforts per- sider Threat Program.
taining to transportation-related inter- (p) Serve as the department’s pro-
national civil emergency preparedness gram manager responsible for over-
activities, including coordinating DOT sight of all intelligence programs, to
representation on North Atlantic Trea- include the DOT Counterintelligence
ty Organization committees, as di-
effort as it pertains to the DOT classi-
rected under Executive Order 12656 (as
fied networks, and coordinate intel-
amended; see Executive Order 13286).
ligence matters throughout the depart-
(g) Carry out the functions vested in
ment. Nothing in this provision is in-
the Secretary by 49 U.S.C. 40119(b), as
tended to prohibit or limit a compo-
implemented by 49 CFR part 15, in con-
nent’s ability to conduct intelligence
sultation and coordination with the
activities authorized by law.
General Counsel.
(h) Oversee the Department’s protec- (q) Carry out the functions under the
tive service program. Defense Production Act of 1950, Public
(i) Serve as the Secretary’s rep- Law 81–774, 64 Stat. 798, as amended (50
resentative to the Transportation Se- U.S.C. app. 2061 et seq.), that were vest-
curity Oversight Board, in accordance ed in the Secretary by Executive Order
with 49 U.S.C. 115, when so designated. 13603 (‘‘National Defense Resources
(j) Lead Departmental participation Preparedness’’).
in internal and interagency planning
§ 1.46 Office of Public Affairs.
efforts related to preparedness in ac-
cordance with Presidential Policy Di- The Director of Public Affairs is the
rective 8, National Preparedness, in co- principal advisor to the Secretary and
ordination with the Under Secretary. Secretarial Officers on public affairs
(k) Serve as the Secretary’s senior issues and the final authority on public
advisor on matters pertaining to public affairs issues within the Department.
health, biological, and medical mat- The Office of Public Affairs prepares
ters. news releases and supporting media
(l) Develop departmental plans to materials, and maintains a new media
support the Department of Defense presence. The Office also provides in-
Civil Reserve Air Fleet (CRAF) pro- formation to the Secretary on opinions
gram and allocate civil air carrier air- and reactions of the public and news
craft to CRAF based on Department of media on programs and transportation
Defense requirements. issues. The Office of Public Affairs is
(m) Oversee operation of the Depart- responsible for the supervision, coordi-
ment’s Crisis Management Center. nation, and review of the activities of
25
the public affairs offices within the Op- of 1996 (40 U.S.C. 11312 to 11314, and
erating Administrations. The Director 11317);
of Public Affairs participates with each (c) Carry out all functions and re-
Administrator in the hiring decisions sponsibilities assigned to the Secretary
(other than in the Federal Aviation Ad- with respect to the E-Government Act
ministration) and performance reviews of 2002, Public Law 107–347;
of all of the Operating Administra- (d) Carry out all functions and re-
tions’ Directors of Public Affairs. sponsibilities necessary to ensure com-
pliance with the Federal Information
[82 FR 19193, Apr. 26, 2017]
Security Management Act of 2002 (44
§ 1.47 Delegations to the Assistant to U.S.C. 3534 and 3544);
the Secretary and Director of Pub- (e) Serve as the Chief Privacy Officer,
lic Affairs. 42 U.S.C. 2000ee–2, and administer the
The Assistant to the Secretary and Privacy Act of 1974, 5 U.S.C. 552a, and
Director of Public Affairs is delegated 49 CFR part 10 (Maintenance of and Ac-
authority to: cess to Records Pertaining to Individ-
(a) Monitor the overall public infor- uals) in connection with the records of
mation program and review and ap- the Office of the Secretary;
prove departmental informational ma- (f) Carry out all functions and re-
terials having policy-making ramifica- sponsibilities necessary to issue no-
tions before they are printed and dis- tices of Department of Transportation
seminated. systems of records as required by the
Privacy Act;
(b) Carry out the functions to pro-
(g) Carry out all functions and re-
mote carpooling and vanpooling trans-
sponsibilities assigned to the Secretary
ferred to the Department of Transpor-
with respect to the Federal Records
tation by section 310 of the Department
Act (44 U.S.C. 3101–3102) and necessary
of Energy Organization Act of 1977
to ensure compliance with the regula-
(Pub. L. 95–91) [42 U.S.C. 7159].
tions of the National Archives and
§ 1.48 Office of the Chief Information Records Administration (36 CFR parts
Officer. 1220 through 1299; 44 U.S.C. Chapters 21,
29, 31, and 33), in coordination with the
The Chief Information Officer (CIO)
General Counsel; and
is the principal information technology
(h) Serve as the Senior Agency Offi-
(IT), cyber security, privacy, and
cial for Geospatial Information under
records management advisor to the
Office of Management and Budget
Secretary, and is the final authority on
Memorandum M–06–07, ‘‘Designation of
these matters within the Department.
a Senior Agency Official for Geospatial
The Office of the CIO supports the Or-
Information’’ (March 3, 2006).
ganizational Excellence Strategic Goal
by providing leadership on all matters § 1.50 Office of Drug & Alcohol Policy
associated with the Department’s IT & Compliance.
portfolio. The CIO participates with
The Office of Drug & Alcohol Policy
each Administrator in the hiring deci-
& Compliance advises the Secretary on
sions and performance reviews of the
national and international drug testing
Operating Administrations’ CIOs.
and control issues and is the principal
[82 FR 19193, Apr. 26, 2017] advisor to the Secretary on rules re-
lated to the drug and alcohol testing of
§ 1.49 Delegations to the Chief Infor- safety-sensitive transportation em-
mation Officer. ployees in aviation, trucking, rail-
The Chief Information Officer is dele- roads, mass transit, pipelines, and
gated authority to: other transportation industries. The
(a) Carry out all functions and re- Office, in coordination with the Office
sponsibilities assigned to the Secretary of the General Counsel, publishes and
with respect to the Paperwork Reduc- provides interpretations of rules re-
tion Act of 1995 (44 U.S.C. 3506); lated to 49 CFR part 40 on the conduct
(b) Carry out all functions and re- of drug and alcohol tests, including
sponsibilities assigned to the Secretary how to conduct tests, and which proce-
with respect to the Clinger-Cohen Act dures to use when testing. The Office
26
coordinates with Federal Agencies and (3) Establish ad hoc committees for
assists foreign governments in devel- specific tasks within their assigned
oping drug and alcohol testing pro- staff area.
grams and implementing the Presi- (4) Establish, modify, extend, or ter-
dent’s National Drug Control Strategy. minate standing committees within
their specific areas of responsibility
§ 1.60 General Authorizations and Del- when directed or authorized to do so by
egations to Secretarial Officers. the Secretary.
(a) Acting in his or her own name and (5) Designate members of interagency
title, the Under Secretary, the General committees when such committees are
Counsel, and each Assistant Secretary, specifically concerned with responsibil-
within his or her sphere of responsi- ities of direct interest to their office.
(6) Exercise the following authorities
bility, is authorized to identify and de-
with respect to positions in the Senior
fine the requirements for, and to rec-
Executive Service and Senior Level
ommend to the Secretary, new or re-
within their respective areas of respon-
vised departmental policies, plans, and sibility:
proposals. Each of these officers is au- (i) Determine how executive level po-
thorized to issue departmental stand- sitions will be filled; i.e., by reassign-
ards, criteria, systems and procedures ment, promotion, or appointment.
that are consistent with applicable (ii) Establish selection criteria to be
laws, Executive Orders, Government- used in identifying eligible candidates.
wide regulations and policies estab- (iii) Confer with the Administrators
lished by the Secretary, and to inspect, on selection criteria and candidates for
review, and evaluate departmental pro- an executive level position that is a
gram performance and effectiveness counterpart of an activity or position
and advise the Secretary regarding the in the Office of the Secretary.
adequacy thereof. (iv) Recommend final selection for
(b) Except for nondelegable statutory executive level positions, subject to re-
duties including those that transfer as view by the Executive Committee of
a result of succession to act as Sec- the Departmental Executive Resources
retary of Transportation, each Deputy Board and approval by the Secretary
Assistant Secretary and Deputy Gen- and the Office of Personnel Manage-
eral Counsel is authorized to act for ment.
and perform the duties of his or her (7) Enter into inter- and intra-depart-
principal in the absence or disability of mental reimbursable agreements other
the principal and as otherwise directed than with the head of another depart-
by the principal. ment or agency (31 U.S.C. 686). This au-
(c) The Deputy Secretary, the Under thority may be redelegated only to of-
fice directors or other comparable lev-
Secretary, the General Counsel, and
els and to contracting officers.
the Assistant Secretaries for Adminis-
(8) Administer and perform the func-
tration, Budget and Programs, and
tions described in their respective
Governmental Affairs are delegated au-
functional statements.
thority to: (9) Exercise the authority of the Sec-
(1) Redelegate and authorize succes- retary to make certifications, findings
sive redelegations of authority granted and determinations under the Regu-
by the Secretary within their respec- latory Flexibility Act (Pub. L. 96–354)
tive organizations, except as limited by with regard to any rulemaking docu-
law or specific administrative reserva- ment for which issuance authority is
tion, including authority to publish delegated by other sections in this
those redelegations in appendix A of part. This authority may be redele-
this part. gated to those officials to whom docu-
(2) Authorize and approve official ment issuance authority has been re-
travel (except foreign travel) and delegated.
transportation for themselves, their (10) Exercise the authority of the
subordinates, and others performing Secretary to resolve informal allega-
services for, or in cooperation with, the tions of discrimination arising in or re-

Office of the Secretary. lating to their respective organizations
27
through Equal Employment Oppor- (a) The Office of the Deputy Inspec-
tunity counseling or the Alternative tor General;
Dispute Resolution process and to de- (b) The Office of the Principal Assist-
velop and implement affirmative ac- ant Inspector General for Investiga-
tion and diversity plans within their tions;
respective organizations. (c) The Office of the Principal Assist-
(11) Exercise the authority vested in ant Inspector General for Auditing and
the Secretary by 49 U.S.C. 326(a) and 31 Evaluation;
U.S.C. 1353 to accept, subject to the (d) The Office of the Assistant Inspec-
concurrence of the Designated Agency tor General for Administration; and
Ethics Official, the following: Gifts of (e) The Office of the Assistant Inspec-
property (other than real property) not tor General for Legal, Legislative and
exceeding $1,000 in value, gifts of serv- External Affairs.
ices (in carrying out aviation duties
and powers) not exceeding $1,000 in § 1.73 Authority of Inspector General.
value, and reimbursement of travel ex- The Inspector General shall report to
penses from non-federal sources not ex- and be under the general supervision of
ceeding $3,000 in value. Acceptance of the Secretary and Deputy Secretary.
gifts or travel reimbursement that ex- The Inspector General has such author-
ceed these limits in value or are other- ity as is provided by the Inspector Gen-
wise significant may only take place eral Act of 1978, as amended, and as is
with the additional concurrence of the otherwise provided by law. Authorities
General Counsel. This delegation ex- provided to the Inspector General by
tends only to the acceptance of gifts or law are reserved to the Inspector Gen-
travel expenses and does not authorize eral. In accordance with the statutory
the solicitation of gifts, which is re- intent of the Inspector General Act to
served to the Secretary at § 1.21. create an independent and objective
unit, the Inspector General is author-
Subpart C—Office of Inspector ized to make such investigations and
General reports relating to the administration
of the programs and operations of the
§ 1.70 Overview. Department as are, in the judgment of
This subpart describes the key re- the Inspector General, necessary and
sponsibilities of the Office of Inspector desirable. Neither the Secretary nor
General, the structure of the office, the Deputy Secretary shall prevent or
and the authority of the Inspector Gen- prohibit the Inspector General from
eral. initiating, carrying out, or completing
any audit or investigation, or from
§ 1.71 Key responsibilities. issuing any subpoena during the course
The Inspector General conducts, su- of any audit or investigation.
pervises, and coordinates audits and in-
vestigations; reviews existing and pro- § 1.74 Delegations to Inspector Gen-
posed legislation and makes rec- eral.
ommendations to the Secretary and The Inspector General is delegated
Congress concerning their effect on the authority to:
economy and efficiency of program ad- (a) Redelegate and authorize succes-
ministration, or the prevention and de- sive redelegations of authority granted
tection of fraud and abuse; rec- by the Secretary within the Office of
ommends policies for and conducts, su- Inspector General, except as limited by
pervises, or coordinates other activi- law or specific administrative reserva-
ties of the Department for the purpose tion.
of promoting economy and efficiency (b) Authorize and approve official
in program administration, or pre- travel, including foreign travel and
venting and detecting fraud and abuse; transportation for themselves, their
and keeps the Secretary and the Con- subordinates, and others performing
gress fully and currently informed. services for, or in cooperation with, the
Office of Inspector General.
§ 1.72 Structure. (c) Exercise the authority of the Sec-

This Office is composed of: retary to resolve informal allegations
28
of discrimination arising in or relating ment or such officials’ principal assist-

to the Office of Inspector General ants.
through Equal Employment Oppor- (i) Settle and pay claims by employ-
tunity counseling or the Alternative ees of the Office of Inspector General
Dispute Resolution process and to defor personal property losses as provided
velop and implement affirmative ac- by 31 U.S.C. 3721 (Claims of personnel
tion and diversity plans. of agencies and the District of Colum-
(d) Exercise the authority vested in bia government for personal property
the Secretary by 49 U.S.C. 326(a) to ac- damage or loss).
cept gifts of property (other than real (j) Review and approve for payment
property) or services (in carrying out any voucher for $25 or less the author-
aviation duties and powers), and the ity for payment of which is questioned
authority to accept travel reimburse- by a certifying or disbursing officer.
ments from non-federal sources under (k) [Reserved]
31 U.S.C. 1353. (l) Exercise the Secretary’s authority
(e) Exercise the implied authority to under 31 U.S.C. 3711 to collect, com-
solicit gifts associated with 49 U.S.C. promise, suspend collection action on,
326(a), notwithstanding the reservation or terminate claims of the United
of authority to the Secretary in § 1.21. States which are referred to, or arise
(f) Carry out the emergency pre- out of the activities of, the Office of In-
spector General, subject to the limits
paredness functions assigned to the
on that authority imposed by 31 U.S.C.
Secretary by Executive Order 12656 (as
3711 and the Federal Claims Collection
amended; see Executive Order 13286)
Standards, 31 CFR chapter IX.
and by the Federal Emergency Manage-
(m) Exercise the Secretary’s author-
ment Agency and General Services Ad-
ity under 28 U.S.C. 2672 and 28 CFR part
ministration (FEMA and GSA) as they
14, related to the administrative dis-
pertain to the Office of Inspector Gen-
position of federal tort claims, for
eral, including those relating to con-
claims involving the Office of Inspector
tinuity of operations, emergency re-
General. The Inspector General may re-
source management, and training.
quest the approval of the Attorney
(g) Determine the existence and General to adjust, compromise, and
amount of indebtedness and the meth- settle any such claim if the amount of
od of collecting repayments from em- the adjustment, compromise, or award
ployees and members within the Office exceeds $100,000, but only after the
of Inspector General and collect repay- General Counsel concurs with the re-
ments accordingly, as provided by 5 quest. If the Inspector General believes
U.S.C. 5514. that a pending claim presents a novel
(h) Waive claims of the United States question of law or of policy, he or she
arising out of an erroneous payment to shall coordinate with the General
an employee of the Office of Inspector Counsel to obtain the advice of the As-
General of pay or allowances, or travel, sistant Attorney General in charge of
transportation, or relocation expenses the Civil Division. If the Inspector Gen-
and allowances, and deny requests for eral settles a claim for an amount
waiver of such claims, as authorized by greater than $50,000, the Inspector Gen-
5 U.S.C. 5584 and the OMB memo- eral shall prepare a memorandum fully
randum, ‘‘Determination with Respect explaining the basis for the action
to Transfer of Functions Pursuant to taken and coordinate with the General
Public Law 104–316’’ (December 17, Counsel before sending a copy of the
1996). But for claims arising from erro- memorandum to the Director, Federal
neous payments to current employees, Torts Claims Act Staff, Torts Branch
this delegation of authority is limited of the Civil Division, U.S. Department
to claims greater than $500. For claims of Justice.
arising from erroneous payments to (n) Make written requests under sub-
former employees, this delegation of section (b)(7) of the Privacy Act of 1974,
authority is not limited by claim 5 U.S.C. 552a(b)(7), for records main-
amount. Redelegation of this authority tained by other agencies that are nec-
may be made only to the principal offi- essary to carry out an authorized law
cials responsible for financial manage- enforcement activity.
29
(o) Administer the Freedom of Infor- uges, and historic sites) and 23 U.S.C.
mation Act, 5 U.S.C. 552, and 49 CFR 138 as they relate to matters within the
part 7 (Public Availability of Informa- primary responsibility of each Oper-
tion) in connection with the records of ating Administration.
the Office of the Inspector General. (5) Carry out the functions of the
(p) Administer the Privacy Act of Secretary under the National Environ-
1974, 5 U.S.C. 552a, and 49 CFR part 10 mental Policy Act of 1969 (42 U.S.C.
(Maintenance of and Access to Records 4321 et seq.), section 176(c) of the Clean
Pertaining to Individuals) in connec- Air Act (42 U.S.C. 7506(c)), and related
tion with the records of the Office of
environmental laws as they relate to
the Inspector General.
matters within the primary responsi-
(q) Exercise the authority of the Sec-
retary over and with respect to any bility of each Operating Administra-
personnel within the Office of Inspector tion.
General, except as prescribed by the (6) Carry out the functions of the
Secretary or limited by law. Secretary under section 106 of the His-
(r) Approve payment of recruitment, toric Preservation Act of 1966, 16 U.S.C.
relocation, and retention incentives 470f, as they relate to matters within
under 5 U.S.C. 5753 and 5754. the primary responsibility of each Op-
(s) Administer 49 CFR part 9 (Testi- erating Administration.
mony of Employees of the Department (7) Administer FOIA and 49 CFR part
and Production of Records in Legal 7 (Public Availability of Information)
Proceedings) in connection with the in connection with the records of the
records of the Office of Inspector Gen- Operating Administration.
eral and testimony of current and (8) Administer the Privacy Act of
former employees of the Office of In- 1974, 5 U.S.C. 552a, and 49 CFR part 10
spector General. (Maintenance of and Access to Records
Pertaining to Individuals) in connec-
Subpart D—Operating tion with the records of the Operating
Administrations Administration.
(9) Make written requests under sub-
§ 1.80 Overview.
section (b)(7) of the Privacy Act for
This subpart sets forth the key re- records maintained by other agencies
sponsibilities of the Operating Admin- that are necessary to carry out an au-
istrations, and the delegations of authorized law enforcement activity.
thority from the Secretary of Trans- (10) Carry out the emergency pre-
portation to the Administrators. paredness functions assigned to the
§ 1.81 Delegations to all Administra- Secretary by Executive Order 12656, (as
tors. amended; see Executive Order 13286)
and by the Federal Emergency Manage-
(a) Except as prescribed by the Sec-
ment Agency and General Services Ad-
retary of Transportation, each Admin-
ministration (FEMA and GSA) as they
istrator is authorized to:
pertain to his or her administration,
(1) Exercise the authority of the Sec-
retary over and with respect to any including those relating to continuity
personnel within their respective orga- of operations, emergency resource
nizations. management, associated Federal
(2) [Reserved] claimant procedures, facilities protec-
(3) Exercise the authority vested in tion and warfare effects monitoring
the Secretary to prescribe regulations and reporting, research, stockpiling, fi-
under 49 U.S.C. 322(a) with respect to nancial aid, and training.
statutory provisions for which author- (11) Enter into inter- and
ity is delegated by other sections in intradepartmental reimbursable agree-
this part. ments other than with the head of an-
(4) Carry out the functions of the other department or agency. This au-
Secretary concerning environmental thority may be redelegated only to Of-
enhancement by 49 U.S.C. 303 (Duties of fice Directors, Regional Directors, Dis-
the Secretary of Transportation: Pol- trict Commanders or other comparable

icy on lands, wildlife and waterfowl ref- levels and Contracting Officers.
30
(12) Determine the existence and under the guidance of the Director of
amount of indebtedness and the meth- the Departmental Office of Civil
od of collecting repayments from em- Rights, including conducting compli-
ployees within their respective admin- ance reviews and other activities relat-
istrations and collect repayments ac- ing to the enforcement of these stat-
cordingly, as provided by 5 U.S.C. 5514. utes, regulations, and Executive Or-
Redelegation of this authority may be ders.
made only to the principal officials re- (16) Review and approve for payment
sponsible for financial management or any voucher for $25 or less the author-
such officials’ principal assistants. ity for payment of which is questioned
(13) Waive claims of the United by a certifying or disbursing officer.
States arising out of an erroneous pay- (17) Authorize and approve official
ment to an employee of the Operating non-foreign travel and transportation
Administration of pay or allowances, for themselves, their subordinates, and
or travel, transportation, or relocation others performing services for, or in co-
expenses and allowances, and deny re- operation with, their Operating Admin-
quests for waiver of such claims, as au- istrations.
thorized by 5 U.S.C. 5584 and the OMB (18) Exercise the authority of the
memorandum, ‘‘Determination with Secretary to make certifications, find-
Respect to Transfer of Functions Pur- ings and determinations under the Reg-
suant to Public Law 104–316’’ (Decem- ulatory Flexibility Act (5 U.S.C. 601, et
ber 17, 1996). But for claims arising seq.) with regard to any rulemaking
from erroneous payments to current document for which issuance authority
employees, this delegation of authority is delegated by other sections in this
is limited to claims greater than $500. part. This authority may be redele-
For claims arising from erroneous pay- gated to those officials to whom docu-
ments to former employees, this dele- ment issuance authority has been dele-
gation of authority is not limited by gated.
claim amount. Redelegation of this au- (19) Carry out the functions vested in
thority may be made only to the prin- the Secretary by 15 U.S.C. 3710(a),
cipal officials responsible for financial which authorizes agencies to permit
management or such officials’ prin- their laboratories to enter into cooper-
cipal assistants. ative research and development agree-
(14) Settle and pay claims by employ- ments.
ees of the Operating Administration for (20) [Reserved]
personal property losses as provided by (21) Exercise the Secretary’s author-
31 U.S.C. 3721 (Claims of personnel of ity under 31 U.S.C. 3711 to collect, com-
agencies and the District of Columbia promise, suspend collection action on,
government for personal property dam- or terminate claims of the United
age or loss). This authority may be re- States which are referred to, or arise
delegated only to Office Directors, Re- out of the activities of, the Operating
gional Directors, or other comparable Administration, subject to the limits
levels and to those individuals that re- on that authority imposed by 31 U.S.C.
port to the above officials. 3711 and the Federal Claims Collection
(15) Exercise the authority of the Standards, 31 CFR chapter IX.
Secretary to resolve informal allega- (22) Exercise the Secretary’s author-
tions of discrimination arising in or re- ity under 28 U.S.C. 2672 and 28 CFR part
lating to their respective organizations 14, related to the administrative dis-
through Equal Employment Oppor- position of federal tort claims, for
tunity counseling or the Alternative claims involving the Operating Admin-
Dispute Resolution process and to de- istration. The Administrator may re-
velop and implement affirmative ac- quest the approval of the Attorney
tion and diversity plans within their General to adjust, compromise, and
respective organizations. With regard settle any such claim if the amount of
to external civil rights programs, each the adjustment, compromise, or award
Administrator exercises authority pur- exceeds $100,000, but only after the
suant to statutes, regulations, Execu- General Counsel concurs with the re-
tive Orders, or delegations in this sub- quest. If the Administrator believes

part to carry out these programs, that a pending claim presents a novel
31
question of law or of policy, he or she ordination with the Office of the Gen-
shall coordinate with the General eral Counsel and the Office of Intel-
Counsel to obtain the advice of the As- ligence, Security and Emergency Re-
sistant Attorney General in charge of sponse, relating to the determination
the Civil Division. If the Administrator that information is Sensitive Security
settles a claim for an amount greater Information within their respective or-
than $50,000, the Administrator shall ganizations.
prepare a memorandum fully explain- (27) Exercise the authority vested in
ing the basis for the action taken and the Secretary by 49 U.S.C. 326(a) and 31
coordinate with the General Counsel U.S.C. 1353 to accept, subject to the
before sending a copy of the memo- concurrence of the Operating Adminis-
randum to the Director, Federal Torts tration’s Deputy Ethics Official, the
Claims Act Staff, Torts Branch of the following: Gifts of property (other than
Civil Division, U.S. Department of Jus- real property) not exceeding $1,000 in
tice. value, gifts of services (in carrying out
(23) Enter into memoranda of agree- aviation duties and powers) not exceed-
ment with the Occupational Safety and ing $1,000 in value, and reimbursement
Health Administration (OSHA) in re- of travel expenses from non-federal
gard to setting and enforcing occupa- sources not exceeding $3,000. Accept-
tional safety or health standards and ance of gifts or travel reimbursement
whistleblower protection for employees that exceed these limits in value or are
in DOT-regulated industries. The Gen- otherwise significant may only take
eral Counsel shall concur in each place with the additional concurrence
memorandum of understanding with of the General Counsel. This delegation
OSHA prior to its execution by the Ad- extends only to the acceptance of gifts
ministrator of the Operating Adminis- or travel expenses and does not author-
tration concerned. ize the solicitation of gifts, which is re-
(24) Enter into memoranda of agree- served to the Secretary at § 1.21.
ment with the Mine Safety Health Ad-
(28) Exercise the authority vested in
ministration (MSHA) in regard to set-
the Secretary by the Federal Civil Pen-
ting and enforcing safety standards for
alties Inflation Adjustment Act of 1990
employees in DOT-regulated industries
(Pub. L. 101–410, 104 Stat. 890), as
while on mine property. The General
amended by the Debt Collection Im-
Counsel shall concur in each memo-
provement Act of 1996 (Pub. L. 104–134,
randum of agreement with MSHA prior
110 Stat. 1321), to promulgate rules that
to its execution by the Administrator
adjust civil penalties.
of the Operating Administration con-
cerned. (29) Carry out the functions vested in
(25) Exercise the authority vested in the Secretary to implement the Uni-
the Secretary by Section 329A of the form Relocation Assistance and Real
Department of Transportation and Re- Property Acquisition Act of 1970 (Uni-
lated Agencies Appropriations Act, form Act), 42 U.S.C. Chapter 61, with
1995, Public Law 103–331, 329A, 108 Stat. respect to programs administered by
2471, 2493 (September 30, 1994), to enter their respective Operating Administra-
into grants, cooperative agreements, tions. Each Operating Administration
and other transactions with any per- may prescribe additional Uniform Act
son, agency, or instrumentality of the guidance that is appropriate to those
United States, any unit of state or particular programs, provided that
local government, any educational in- such additional guidance must be con-
stitution, and any other entity in exe- sistent with the Uniform Act and 49
cution of the Technology Reinvestment CFR part 24. The lead agency for Uni-
Project authorized under the Defense form Act matters is the Federal High-
Conversion, Reinvestment, and Transi- way Administration (see § 1.85 and 49
tion Assistance Act of 1992, Public Law CFR part 24).
102–484, 106 Stat. 2658 (October 23, 1992),
and related legislation. § 1.81a Redelegation by all Administra-
(26) Carry out the functions vested in tors.
the Secretary by 49 U.S.C. 40119(b), as Except as otherwise specifically pro-

implemented by 49 CFR part 15, in co- vided in this part, each Administrator
32
may redelegate and authorize succes- forts to increase the environmental

sive redelegations of authority within sustainability of the Nation’s air trans-
the organization under that official’s portation systems;
jurisdiction. (m) Conducting an effective airport
technology research program to im-
§ 1.82 The Federal Aviation Adminis- prove airport safety, efficiency, and
tration.
sustainability;
Is responsible for: (n) Exercising the final authority for
(a) Promulgating and enforcing regu- carrying out all functions, powers, and
lations on all safety matters relating duties of the Administration in accord-
to the operation of airports, the manu- ance with 49 U.S.C. 106(f) and adjudica-
facture, operation, and maintenance of
tion in accordance with 49 U.S.C.
aircraft, and the efficiency of the Na-
40110(d) and that such authorities su-
tional Airspace System;
persede any conflicting provisions else-
(b) Planning and supporting the de-
velopment of an integrated national where in this part.
system of airports, with due consider- (o) Promoting and encouraging U.S.
ation of safety, capacity, efficiency, leadership in commercial space activi-
environmental compatibility and sus- ties, and promulgating and enforcing
tainability; regulations on safety matters relating
(c) Administering federal financial to commercial space transportation.
assistance programs for airports in-
cluding airport grants-in-aid; § 1.83 Delegations to the Federal Avia-
(d) Preserving and enhancing the tion Administrator.
safety and efficiency of the Nation’s air The Federal Aviation Administrator
transportation system by imple- is delegated authority to:
menting NextGen and other tech- (a) Carry out the following functions
nologies, as appropriate; vested in the Secretary by 49 U.S.C.
(e) Registering aircraft and recording Subtitle VII (Aviation Programs):
rights in aircraft; (1) Sections 40103(a)(2), relating to
(f) Developing, modifying, testing, the consultation with the Architec-
and evaluating systems, procedures, fa- tural and Transportation Barriers
cilities, and devices needed for the safe Compliance Board before prescribing
and efficient navigation and traffic regulations or procedures that will
control of aircraft;
have a significant impact on accessi-
(h) Locating, constructing or install-
bility of commercial airports or com-
ing, maintaining and operating Federal
mercial air transportation for individ-
aids to air navigation, wherever nec-
essary; uals with disabilities; 40109(c), but only
(i) Developing air traffic regulations, as it relates to the regulation of 49
and administering air navigation serv- U.S.C. 46301(b) (smoke alarm device
ices for control of civil and military air penalties), and 40109(e), relating to
operations within U.S. airspace, as well maximum flying hours 40113(a) as it re-
as administering such air navigation lates to the functions vested in the
services as the FAA has accepted re- Secretary and delegated in this sec-
sponsibility for providing in inter- tion; 40114, relating to reports and
national airspace and the airspace of records requirements; 40115, relating to
foreign countries; withholding information from public
(j) Promoting aviation safety and ef- disclosure; 40116, relating to the prohi-
ficiency through technical aviation as- bition on State taxation as the prohibi-
sistance to foreign aviation authori- tion may affect an airport sponsor’s
ties; grant assurances; 40117, relating to pas-
(k) Developing strategies to improve senger facility charges; 40119(b), relat-
runway safety at all commercial serving to the issuance of regulations on
ice airports; disclosure of information obtained or
(l) Administering the Continuous developed in ensuring security; and
Lower Energy, Emissions and Noise 40127(b) of chapter 401, relating to pro-
program, improving connections to hibition on discrimination by private

surface transportation, and other ef- airports;
33
(2) Section 41723 of subchapter I of (2) Carry out the functions vested in
chapter 417, relating to notice con- the Secretary by 49 U.S.C. 5114, relat-
cerning aircraft assembly; ing to the establishment of procedures
(3) Section 44102(b) of chapter 441, re- for monitoring and enforcing regula-
lating to defining the term ‘‘based and tions with respect to the transpor-
primarily used in the United States’’; tation of radioactive materials on pas-
(4) Chapter 443, relating to insurance; senger-carrying aircraft.
(5) Chapter 445, relating to facilities, (3) Participate, with the Adminis-
personnel, and research, except section trator of the Pipeline and Hazardous
44502(a)(3) as it relates to authorizing a Materials Safety Administration, in
department, agency, or instrumen- the Dangerous Goods Panel at the
tality of the United States Government International Civil Aviation Organiza-
to carry out any duty or power under tion, under the authority vested in the
subsection 44502(a) with the consent of Secretary by 49 U.S.C. 5120.
the head of the department, agency, or (e) Serve, or designate a representa-
instrumentality; tive to serve, as Vice Chairman and al-
(6) Chapter 447, relating to safety reg- ternate Department of Transportation
ulation; member of the Interagency Group on
(7) Chapter 451, relating to alcohol International Aviation (IGIA) pursuant
and controlled substances testing; to the interagency agreement of De-
(8) Subpart IV of Part A of 49 U.S.C. cember 9, 1960, and Executive Order
Subtitle VII (chapters 461–465) relating 11382, and provide for the administra-
to the Secretary’s authority to enforce tive operation of the IGIA Secretariat.
and impose penalties under sections of (f) Carry out the functions assigned
Subtitle VII that have been delegated to the Secretary by Executive Order
to the Federal Aviation Administrator 12465 relating to commercial expend-
in this section; able launch vehicle activities.
(9) Part B of 49 U.S.C. Subtitle VII (g) Carry out the functions vested in
(chapters 471–475) relating to airport the Secretary by the National Aero-
development and noise, except 49 nautics and Space Administration Au-
U.S.C. 47129(a); thorization Act, Fiscal Year 1993 (Pub.
(10) Part C of 49 U.S.C. Subtitle VII L. 102–588, 106 Stat 5119, November 4,
(chapters 481–483) relating to financing; 1992).
and
(11) Part E of 49 U.S.C. Subtitle VII § 1.84 The Federal Highway Adminis-
(chapter 501) relating to Buy-American tration.
Preferences. Is responsible for:
(b) Carry out the functions vested in (a) Improving mobility on our Na-
the Secretary by chapters 509 and 511 tion’s highways through national lead-
(commercial space) of title 51, U.S.C. ership, innovation, and program deliv-
and coordinate with the Assistant Sec- ery.
retary for Aviation and International (b) Developing safety strategies using
Affairs regarding those functions re- a data-driven, systematic approach to
lated to the promotion of the aerospace address safety for motorists, bicyclists,
industry. and pedestrians from engineering, edu-
(c) Carry out the functions vested in cation, enforcement, and emergency
the Secretary by part B of title II of medical services perspectives and co-
the Clean Air Act, as amended (Pub. L. ordinating with FMCSA and NHTSA as
91–604, sec. 11, 84 Stat. 1703), and by 40 appropriate.
CFR part 87 as it relates to exemptions (c) Planning, in cooperation with the
from aircraft air pollution standards. States, the nation’s highway system.
(d)(1) Except as delegated to the (d) Improving, in cooperation with
Under Secretary of Transportation for the States (via the provision of grants),
Policy by § 1.25, carry out the functions infrastructure condition, safety, mobil-
vested in the Secretary by 49 U.S.C. ity and freight movement roads on the
5121(a), (b), (c), and (d), 5122, 5123, and National Highway System, including
5124, relating to the transportation or the Interstate System and to other fed-
shipment of hazardous materials by eral-aid roads and other surface trans-

air. portation infrastructure.
34
(e) Identifying and deploying innova- (iii) Section 167(f) (National Freight
tion aimed at shortening project deliv- Strategic Plan).
ery, enhancing the safety of our road- (2) Chapter 2, Other Highways, except
ways, and protecting the environment. for section 205.
(f) Surveying and constructing Fed- (3) Chapter 3, General Provisions (as
eral lands transportation facilities, it relates to matters within the pri-
Federal lands access transportation fa- mary responsibility of the Federal
cilities, tribal transportation facilities, Highway Administration), except for
defense highways and access roads, and section 322.
parkways and roads in national parks (4) Section 409 of chapter 4, Highway
and other federally-administered areas. Safety.
(g) Developing and administering (5) Chapter 5, Research, Technology,
uniform State standards for highway and Education, except for section 508.
safety programs with respect to identi- (6) Chapter 6, Infrastructure Finance,
fication and surveillance of crash loca- subject to the limitations set forth in
tions; highway design, construction, §§ 1.33 (Assistant Secretary for Budget
and maintenance, including context and Programs) and 1.21 (reservation to
sensitive solutions, highway-related as- the Secretary of final approval of
pects of pedestrian safety, and traffic TIFIA credit assistance applications).
control devices. (b) The Federal Highway Adminis-
(h) Administering the Department’s trator is delegated authority to admin-
National Bridge Inspection Standards ister the following provisions of title
and the National Tunnel Inspection 49, U.S.C. (Transportation):
Standards to ensure the Nation has (1) Section 20134(a) with respect to
safe, well-maintained bridges and tun- the laws administered by the Federal
nels for use by the traveling public. Highway Administrator pertaining to
(i) In coordination with NHTSA, highway safety and highway construc-
RITA, and FMCSA, conducting vehicle- tion; and
to-vehicle and vehicle-to-infrastruc- (2) Sections 31111 and 31112 (as it re-
ture research. lates to matters within the primary re-
(j) Managing TIFIA funds, 23 U.S.C. sponsibility of the Federal Highway
601–609, in conjunction with the TIFIA Administration).
Joint Program Office, including man- (3) Section 31314 (as it relates to mat-
aging accounting and budgeting activi- ters within the primary responsibility
ties, and procuring any necessary fi- of the Federal Highway Administra-
nancial or technical support services tion).
for the TIFIA program. (c) The Federal Highway Adminis-
(k) Maximizing the positive impacts trator is delegated authority to admin-
on the U.S. economy by encouraging ister the following laws relating gen-
domestic manufacturing on highway erally to highways:
projects through the enforcement of (1) Section 502(c) of the General
Buy America provisions. Bridge Act of 1946, as amended, Public
Law 79–601, tit. V, 60 Stat. 847, [33
§ 1.85 Delegations to the Federal High- U.S.C. 525(c)].
way Administrator. (2) Reorganization Plan No. 7 of 1949
(a) The Federal Highway Adminis- (63 Stat. 1070).
trator is delegated authority to admin- (3) The Federal-Aid Highway Act of
ister the following provisions of title 1954, as amended (Pub. L. 83–350, 68
23, U.S.C. (Highways): Stat. 70).
(1) Chapter 1, Federal-Aid Highways, (4) The Federal-Aid Highway Act of
except for: 1956, as amended (Pub. L. 84–627, tit. I,
(i) Section 142 (as it relates to mat- 70 Stat. 374).
ters within the primary responsibility (5) The Highway Revenue Act of 1956,
of the Federal Transit Administrator); as amended (Pub. L. 84–627, tit. II, 70
(ii) The following sections as they re- Stat. 374, 387).
late to matters within the primary re- (6) The Alaska Omnibus Act, as
sponsibility of the National Highway amended (Pub. L. 86–70, 73 Stat. 141).
Traffic Safety Administration: 153, 154, (7) The Act of September 26, 1961, as
158, 161, 163, and 164; and amended (Pub. L. 87–307, 75 Stat. 670).
35
(8) The Act of April 27, 1962 (Pub. L. 138(c), 142, 144, 147 through 154, 167, and
87–441, 76 Stat. 59). 171, Title IV, as amended (as it relates
(9) The Federal-Aid Highway Act of to matters within the primary respon-
1962, as amended (Pub. L. 87–866, 76 sibility of the Federal Highway Admin-
Stat. 1145). istrator), and sections 502–504 of Title
(10) The Joint Resolution of August V of the Surface Transportation Assist-
28, 1965, as amended (Pub. L. 89–139, 79 ance Act of 1978 (Pub. L. 95–599, 92 Stat.
Stat. 578). 2689).
(11) The Federal-Aid Highway Act of (21) Sections 201 through 205, 327
1966, as amended (Pub. L. 889–574, 80 through 336, 339, 340, 349, 352, 353, and
Stat. 766). 408 of the National Highway System
(12) The Federal-Aid Highway Act of Designation Act of 1995 (Pub. L. 104–59,
1968, as amended (Pub. L. 90–495, 82
109 Stat. 568).
Stat. 815).
(22) Sections 1002(e), 1006(h), 1009(c),
(13) The Federal-Aid Highway Act of
1970, as amended (except section 118) 1012(b) and (d) through (f), 1015, 1016(g),
(Pub. L. 91–605, 84 Stat. 1713). 1017(c), 1021(c) and (d), 1022(c), 1023(f)
(14) Sections 103, 104, 111(b), 128(b), through (g), 1032(d), 1038 through 1041,
131, 135, 136, 141, 147, 149, 154, 158 1044, 1046(d), 1047, 1051, 1057 through
through 161, 163, 203, 206, 401, and 402 of 1060, 1072, 1073, 1105, and 6016 of the
the Federal-Aid Highway Act of 1973, as Intermodal Surface Transportation Ef-
amended (Pub. L. 93–87, 87 Stat. 250; ficiency Act of 1991 (Pub. L. 102–240, 105
Pub. L. 93–643, 88 Stat. 2281). Stat. 1914).
(15) Sections 102(b) (except subpara- (23) Sections 1108(f) and (g) and 1224
graph (2)) and (c); 105 (b)(1) and (c); 141; of the Transportation Equity Act for
146; 147; and 152 of the Federal-Aid the 21st Century (Pub. L. 105–178, 112
Highway Act of 1976 (Pub. L. 94–280, 90 Stat. 107).
Stat. 425). (24) Sections 1101(a), 1102, 1109(f),
(16) The Highway Beautification Act 1111(b)(4), 1112, 1115(c), 1116(a) and (b),
of 1965, as amended (Pub. L. 89–285, 79 1117, 1119(n), 1120(c), 1201, 1301, 1302,
Stat. 1028, 23 U.S.C. 131 et seq., notes). 1303, 1304, 1305, 1306, 1308, 1310, 1404, 1408,
(17) The Federal-Aid Highway Act of 1409(a) and (b), 1410, 1411, 1502, 1604,
1982 (Pub. L. 97–327, 96 Stat. 1611), ex- 1803, 1907, 1908, 1910, 1911, 1916, 1917, 1918,
cept section 6 as it relates to matters 1923, 1928, 1934, 1935, 1937, 1939, 1940, 1941,
within the primary responsibility of 1943, 1944, 1945, 1948, 1949, 1950, 1952, 1957,
the Federal Transit Administrator. 1959, 1962, 1964, 4404 (as it relates to
(18) The Surface Transportation As- matters within the primary responsi-
sistance Act of 1982, as amended, (Pub. bility of the Federal Highway Adminis-
L. 97–424, 96 Stat. 2097) except:
trator), 5101(b), 5202(b)(3)(B), (c), and
(i) Sections 165 and 531 as they relate
(d), 5203(e) and (f), 5204(g) and (i), 5304,
to matters within the primary respon-
5305, 5306, 5307, 5308, 5309, 5502, 5504, 5508,
sibility of the Federal Transit Admin-
istrator; 5511, 5512, 5513(b), (f), (k), and (m) (as
(ii) Sections 105(f), 413; 414(b)(2); 421, (m) relates to (b), (f), and (k)), 5514,
426, and Title III; and 6009(b) (as they relate to matters with-
(iii) Section 414(b)(1), unless with the in the primary responsibility of the
concurrence of the National Highway Federal Highway Administrator), 6017,
Traffic Safety Administrator. 6018, 10210, and 10212 of the Safe, Ac-
(19) Sections 103(e), 105(a) through countable, Flexible, Efficient Trans-
(g), 106(a), and (b), 110(b), 114(d), 117(f), portation Equity Act: A Legacy for
120(c) and (d), 123(g) and (i), 133(f), 134, Users (Pub. L. 109–59, 119 Stat. 1144).
136, 137, 139 through 145, 146(b), 147(c), (25) Sections 1101(a), 1102, 1106(b),
149(a) through (f), (h), (i), (k), 151 1112(b), 1113(c), 1116, 1123, 1201(b), 1315
through 157, 164, and 208 of the Surface (as it relates to matters within the pri-
Transportation and Uniform Reloca- mary responsibility of the Federal
tion Assistance Act of 1987 (Pub. L. 100– Highway Administration), 1316 (as it
17, 101 Stat. 132). relates to matters within the primary
(20) Sections 105, 107(c) through (e), responsibility of the Federal Highway
123(a) and (b), 124(c), 126(d) through (g), Administration), 1317 (as it relates to
36
matters within the primary responsi- (7) Prescribe regulations, as nec-

bility of the Federal Highway Adminis- essary, at part 24 of this title, to imple-
tration), 1318(a) and (b) (as it relates to ment the Uniform Act, 42 U.S.C. Chap-
matters within the primary responsi- ter 61, and to act as the lead agency in
bility of the Federal Highway Adminis- carrying out all other functions vested
tration), 1323 (a) and (b), 1401(b), (c) and in the Secretary by the Uniform Act,
(d), 1405, 1503(c), 1512(b), 1519(a), 1520, in coordination with the Under Sec-
1522, 1523, 1524, 1525, 1526, 1527 (as it re- retary.
lates to matters within the primary re- (8) Exercise the authority vested in
sponsibility of the Federal Highway the Secretary by sections 101, 118,
Administration), 1528, 1529, 1530 (as it 120(b), 123 and 124 of the Federal-Aid
relates to matters within the primary Highway Amendments of 1974 (Pub. L.
responsibility of the Federal Highway 93–643, January 4, 1975, 88 Stat. 2281).
Administration), 1533, 1534, 1535, 32801, (9) Carry out the functions vested in
32802, and 51001 of the Moving Ahead for the Secretary of Transportation by sec-
Progress in the 21st Century Act (Pub. tion 114 of Part C of the Paperwork Re-
L. 112–141, 126 Stat. 405). duction Reauthorization Act of 1986
(d) The Federal Highway Adminis- (contained in the Act Making Con-
trator is delegated authority to: tinuing Appropriations for Fiscal Year
(1) Carry out the functions vested in 1987 and for Other Purposes, Public
the Secretary of Transportation by sec- Law 99–591, 100 Stat. 3341, 2241–349), re-
tion 601 of the Pipeline Safety Act of lating to construction of Interstate
1992 (Pub. L. 102–508, 106 Stat. 3289) re- Highway H–3 in Hawaii.
lating to construction of the Page Ave- (10) Carry out the functions vested in
nue Extension Project in Missouri. the Secretary by Public Law 98–229, 98
Stat. 55, insofar as it relates to appor-
(2) Carry out the functions of the
tioning certain funds for construction
Secretary under the Appalachian Re-
of the Interstate Highway System in
gional Development Act of 1965, 40
Fiscal Year 1985, apportioning certain
U.S.C. Subtitle IV.
funds for Interstate substitute highway
(3) Carry out the Act of September projects, and increasing amounts avail-
21, 1966, Public Law 89–599, relating to able for emergency highway relief.
certain approvals concerned with a (11) Carry out all of the functions
compact between the States of Mis- vested in the Secretary under section
souri and Kansas. 324 of the Fiscal Year 1986 Department
(4) Carry out the functions vested in of Transportation Appropriations Act
the Secretary by section 5 (as it relates (Pub. L. 99–190, 99 Stat. 1288), notwith-
to bridges, other than railroad bridges, standing the reservation of authority
not over navigable waters), and section under § 1.21.
8(a) (as it relates to all bridges other (12) Carry out the functions vested in
than railroad bridges) of the Inter- the Secretary of Transportation by sec-
national Bridge Act of 1972 (Pub. L. 92– tion 505 of the Railroad Revitalization
434, 86 Stat. 731) [33 U.S.C. 535c and and Regulatory Reform Act of 1976, as
535e(a)]. amended, (Pub. L. 94–210, 90 Stat. 31)
(5) Carry out the Highway Safety Act relating to the Alameda Corridor
of 1966, as amended (Pub. L. 89–564, 80 Project in consultation with the Fed-
Stat. 731) for highway safety programs, eral Railroad Administrator.
research, and development relating to (13) Act as the lead DOT agency in
highway design, construction and matters relating to the National Envi-
maintenance, traffic control devices, ronmental Policy Act of 1969, Public
identification and surveillance of crash Law 91–190, 83 Stat. 852 [42 U.S.C. 4321 et
locations, and highway-related aspects seq.] pertinent to the authority vested
of pedestrian safety. in the Secretary to establish, operate,
(6) Exercise the authority vested in and manage the Nationwide Differen-
the Secretary by 49 U.S.C. 20134(a) with tial Global Positioning System
respect to the laws administered by the (NDGPS) by section 346 of the Depart-
Federal Highway Administrator per- ment of Transportation and Related
taining to highway safety and highway Agencies Appropriations Act, 1998

construction (Pub. L. 105–66, 111 Stat. 1425).
37
(14) Exercise the responsibilities of (4) Sections 13704 and 13707 of chapter
the Secretary under 49 U.S.C. 309 (high 137, relating to rates, routes, and serv-
speed ground transportation). ices;
(15) Carry out the functions vested in (5) Chapter 139, relating to registra-
the Secretary by section 201(4)(d) and tion and financial responsibility re-
(e) of the Alaska National Interest quirements, except section 13907(d)(2);
Lands Conservation Act, as amended (6) Chapter 141, relating to operations
(Pub. L. 96–487, 94 Stat. 2377) [16 U.S.C. of motor carriers;
410hh(4)(d) and (e)]. (7) Sections 14501, 14502, and 14504a re-
lating to Federal-State relations, and
§ 1.86 The Federal Motor Carrier Safe- section 14506 relating to identification
ty Administration. of vehicles.
Is responsible for: (8) Sections 14701 through 14705, 14707,
(a) Managing program and regulatory 14708, 14710, and 14711 of chapter 147, re-
activities, including administering lating to enforcement remedies, inves-
laws and promulgating and enforcing tigations and motor carrier liability;
regulations on safety matters relating and
to motor carrier safety; (9) Sections 14901 through 14913, 14915,
(b) Carrying out motor carrier reg- and 14916 of chapter 149 relating to civil
istration and authority to regulate and criminal penalties for violations of
household goods transportation; 49 U.S.C. subtitle IV, part B.
(b) Carry out the functions vested in
(c) Developing strategies for improv-
the Secretary by sections 104 and 204 of
ing commercial motor vehicle, oper-
the ICC Termination Act of 1995, Public
ator, and carrier safety and admin-
Law 104–88, 109 Stat. 803, relating to
istering grants to implement these
self-insurance rules and a savings
strategies;
clause.
(d) Inspecting records and equipment
(c) Carry out the functions vested in
of commercial motor carriers, and in-
the Secretary by 42 U.S.C. 4917, relat-
vestigating accidents and reporting
ing to procedures for the inspection,
violations of motor carrier safety regu-
surveillance and measurement of com-
lations;
mercial motor vehicles for compliance
(e) Carrying out research, develop- with interstate motor carrier noise
ment, and technology transfer activi- emission standards and related enforce-
ties to promote safety of operation and ment activities including the promul-
equipment of motor vehicles for the gation of necessary regulations.
motor carrier transportation program; (d) Carry out the following functions
and and exercise the authority vested in
(f) Carrying out an effective commu- the Secretary by chapter 51 of title 49,
nications and outreach program which U.S.C.:
includes providing relevant safety data (1) Except as delegated to the Under
to the public. Secretary of Transportation for Policy
by § 1.25, carry out the functions vested
§ 1.87 Delegations to the Federal in the Secretary by 49 U.S.C. 5121(a),
Motor Carrier Safety Adminis-
trator. (b), (c), and (d), 5122, 5123, and 5124, re-
lating to the transportation or ship-
The Federal Motor Carrier Safety ment of hazardous materials by high-
Administrator is delegated authority way.
to: (2) Carry out the functions vested in
(a) Carry out the following functions the Secretary by 49 U.S.C. 5105(e), re-
and exercise the authority vested in lating to inspections of motor vehicles
the Secretary by 49 U.S.C., Subtitle IV, carrying hazardous material; 49 U.S.C.
part B: 5109, relating to motor carrier safety
(1) Chapter 131, relating to general permits, except subsection (f); 49 U.S.C.
provisions on transportation policy; 5112, relating to highway routing of
(2) Chapter 133, relating to adminis- hazardous materials; 49 U.S.C. 5113, re-
trative provisions; lating to unsatisfactory safety ratings
(3) Chapter 135, relating to jurisdic- of motor carriers; 49 U.S.C. 5119, relat-
tion; ing to uniform forms and procedures;
38
and 49 U.S.C. 5125(a) and (c)–(f), relat- of migrant workers, motor private car-
ing to preemption determinations or riers, or freight forwarders; and 49
waivers of preemption of hazardous U.S.C. 505, 508, 521(b), and 525.
materials highway routing require- (k) Carry out the functions and exer-
ments. cise the authority vested in the Sec-
(e) Carry out the functions vested in retary by 23 U.S.C. 502(a)(1)(A).
the Secretary by: (l) Carry out the functions vested in
(1) Chapter 313 of 49, U.S.C., relating the Secretary by the following sections
to commercial motor vehicle opera- of SAFETEA–LU:
tors; and (1) Section 4105(b)(1) relating to the
(2) Section 4123(c), (d) and (e) of study concerning predatory tow truck
SAFETEA–LU relating to grants, fund- operations;
ing, and contract authority and avail- (2) Section 4126, relating to the com-
ability, respectively, for commercial mercial vehicle information systems
driver’s license information system and networks deployment program;
modernization. (3) Section 4127, relating to outreach
(f) Carry out the functions vested in and education;
the Secretary by subchapters I, III, and (4) Section 4128, relating to grants
IV of chapter 311, title 49, U.S.C., and 49 under the safety data improvement
U.S.C. 31111, relating to commercial program;
motor vehicle programs, safety regula- (5) Section 4130–4133, amending sec-
tion, and international activities, ex- tion 229 of the Motor Carrier Safety
cept that the authority to promulgate Improvement Act of 1999 (49 U.S.C.
safety standards for commercial motor 31136 note) relating to the operators of
vehicles and equipment subsequent to vehicles transporting agricultural com-
initial manufacture is limited to stand- modities and farm supplies, and hours
ards that are not based upon and simi- of service for miscellaneous vehicle op-
lar to a Federal Motor Vehicle Safety erators;
Standard promulgated under chapter (6) Section 4134 (49 U.S.C. 31301 note),
301 of title 49, U.S.C. relating to the grant program for per-
(g) Carry out the functions vested in sons to train operators of commercial
the Secretary by 49 U.S.C. 5701 relating motor vehicles;
to food transportation inspections of (7) [Reserved]
commercial motor vehicles. (8) Section 4136 relating to interstate
(h) Carry out the functions and exer- vans;
cise the authority delegated to the Sec- (9) Section 4138 relating to high risk
retary in section 2(d)(2) of Executive carrier compliance (49 U.S.C. 31144
Order 12777, as amended, with respect note);
to highway transportation, relating to (10) Section 4139(a)(1), relating to the
the approval of means to ensure the training of and outreach to State per-
availability of private personnel and sonnel; section (b)(1) relating to a re-
equipment to remove, to the maximum view of Canadian and Mexican compli-
extent practicable, a worst case dis- ance with Federal motor vehicles safe-
charge, the review and approval of re- ty standards; and the first sentence of
sponse plans, and the authorization of section (b)(2) relating to the report
motor carriers, subject to the Federal concerning the findings and conclu-
Water Pollution Control Act, Pub. L. sions of the review required by section
87–88, as amended [33 U.S.C. 1321], to (b)(1) (see 49 U.S.C. 31100 note);
operate without approved response (11) Section 4143, granting authority
plans. to stop commercial motor vehicles, 18
(i) Carry out chapter 315 of title 49, U.S.C. 3064;
U.S.C., relating to motor carrier safe- (12) Section 4144, relating to a motor
ty. carrier safety advisory committee;
(j) Carry out 49 U.S.C. 502, 503, 504, (13) [Reserved]
506, and 523 to the extent they relate to (14) Section 4147, relating to emer-
motor carriers, motor carriers of mi- gency conditions requiring immediate
grant workers, and motor private car- response (amending section 229 of the
riers; 49 U.S.C. 507 to the extent it re- Motor Carrier Safety Improvement Act
lates to motor carriers, motor carries of 1999 (49 U.S.C. 31136 note);
39
(15) Section 4213, relating to the es- (13) Section 32918(b) relating to
tablishment of a working group for the broker and forwarder financial respon-
development of practices and proce- sibility rulemaking requirement (49
dures to enhance Federal-State rela- U.S.C. 13906 note).
tions (49 U.S.C. 14710 note); (14) Section 32934 related to exemp-
(16) Section 4214, relating to the es- tions from requirements for covered
tablishment of a system for collecting farm vehicles (49 U.S.C. 31136 note).
consumer complaint information and
issuing regulations related to reporting § 1.88 The Federal Railroad Adminis-
requirements under the system (49 tration.
U.S.C. 14701 note); and Is responsible for:
(17) Section 4308, granting authority (a) Regulating safety functions per-
to adopt regulations to carry out taining to railroads;
SAFETEA–LU, Title IV, subtitle C (49
(b) Conducting research and develop-
U.S.C. 13902 note).
ment activity in support of safer and
(m) Carry out the functions vested in more efficient rail transportation;
the Secretary by the following sections
(c) Investigating and issuing reports
of the Moving Ahead for Progress in
concerning collisions, derailments, and
the 21st Century Act (Pub. L. 112–141,
126 Stat. 405): other railroad accidents resulting in
serious injury to persons or to the
(1) Section 32101(b) concerning pro-
property of a railroad;
ficiency examination (49 U.S.C. 13902
note). (d) Developing safety strategies to
(2) Section 32101(c) concerning con- combat the causes of collisions,
forming amendments to proficiency ex- derailments, and other railroad acci-
aminations (49 U.S.C. 31144 note). dents, as well as to reduce overall risk
(3) Section 32101(d) concerning agri- in the Nation’s rail systems;
cultural and farm transportation ex- (e) Promoting and strengthening the
emption (49 U.S.C. 31136 note). national rail system, including freight
(4) Section 32104 concerning a study rail and high speed and higher per-
of financial responsibility require- forming intercity passenger rail.
ments (49 U.S.C. 13903 note). (f) Providing financial assistance, in-
(5) Section 32206 concerning a rental cluding grants, loans and loan guaran-
truck accident study. tees, for rail freight and intermodal de-
(6) Section 32301(a) requiring an velopment, as well as high-speed and
hours of service study. intercity passenger rail development;
(7) Section 32302(c)(2) regarding the (g) Maximizing the positive impacts
establishment of state licensing agency on the U.S. economy by encouraging
oversight (49 U.S.C. 31149 note). domestic manufacturing on rail
(8) Section 32303(b) relating to the es- projects through the enforcement of
tablishment of a driver record notifica- Buy America provisions; and
tion system (49 U.S.C. 31304 note). (h) Strengthening local communities
(9) Section 32303(c) relating to a plan by supporting station-area develop-
for national notification system. ment and strong connections among
(10) Section 32308 regarding a study, rail passenger service, intercity bus,
plan, report and implementation of ac- local transit, bicycle/pedestrian, and
celerated veteran’s licensing proce- airport facilities.
dures (49 U.S.C. 31301 note).
(11) Section 32603(i) relating to the § 1.89 Delegations to the Federal Rail-
road Administrator.
administration of grant programs (49
U.S.C. 31100). The Federal Railroad Administrator
(12) Section 32605 related to a report is delegated authority to:
on the commercial vehicle information (a) Carry out the functions and exer-
system and networks. cise the authority vested in the Sec-
(12) Sections 32702, 32707(b), 32708, retary by 49 U.S.C. Subtitle V, Part A
32709, 32710, and 32711 related to the Mo- (Safety, chapter 201 et seq.), Part B (As-
torcoach Enhanced Safety Act of 2012 sistance, chapter 221 et seq.), Part C
(49 U.S.C. 31136 note). (Passenger Transportation, chapter 241
40
et seq.), Part D (High-speed Rail, chap- by § 1.25, carry out the functions vested
ter 261), and section 28101 of Part E, rein the Secretary by 49 U.S.C. 5121–5124
lating to the law enforcement author- relating to the transportation or ship-
ity of railroad police officers; except 49 ment of hazardous materials by rail-
U.S.C. 20134 with respect to highway, road.
traffic, and motor vehicle safety and (k) Carry out the functions vested in
highway construction. the Secretary by section 7 of Executive
(b) Carry out the functions and exer- Order 12580 (delegating sections 108 and
cise the authority vested in the Sec- 109, respectively, of the Comprehensive
retary by the Rail Safety Improvement Environmental Response, Compensa-
Act of 2008 (Pub. L. 110–432, Div. A, 122 tion, and Liability Act of 1980 as
Stat. 4848). amended (49 U.S.C. 9615 et seq.), insofar
(c) Carry out the functions and exer- as they relate to rolling stock.
cise the authority vested in the Sec- (l) Carry out the functions vested in
retary by the Passenger Rail Invest- the Secretary by 33 U.S.C. 493, relating
ment and Improvement Act of 2008 to disputes over the terms and com-
(Pub. L. 110–432, Div. B, 122 Stat. 4907), pensation for use of railroad bridges
except Title VI (122 Stat. 4968) as it rebuilt under that statute.
lates to capital and preventive mainte- (m) Carry out the functions vested in
nance projects for the Washington Met- the Secretary by 49 U.S.C. 5701 with re-
ropolitan Area Transit Authority. spect to transportation of food and
(d) Carry out the functions vested in other products by railroad.
the Secretary by section 5 (as it relates (n) Carry out the functions vested in
to railroad bridges not over navigable the Secretary by 23 U.S.C. 322 (Mag-
waterways) and section 8(a) (as it re- netic Levitation Transportation Tech-
lates to railroad bridges) of the Inter- nology Deployment Program).
national Bridge Act of 1972 (Pub. L. 92– (o) Carry out the functions vested in
434, 86 Stat. 731) (33 U.S.C. 535c and the Secretary by sections 1307 (see note
535e(a)). to 23 U.S.C. 322), and 1946 of SAFETEA–
(e) Exercise the administrative pow- LU as they relate to deployment of
ers vested in the Secretary by 49 U.S.C. magnetic levitation transportation
Subtitle I, Chapter 5 (section 501 et seq.) projects and a study of rail transpor-
pertaining to railroad safety and 49 tation and regulation.
U.S.C. 103 (Federal Railroad Adminis- (p) Carry out the function vested in
tration). the Secretary by the Bankruptcy Code
(f) Promote and undertake research (11 U.S.C. 1163), which relates to the
and development relating to rail mat- nomination of trustees for rail carriers
ters generally (49 U.S.C. Chapter 3 (sec- in reorganization, with the concur-
tion 301 et seq). and 49 U.S.C. 102). rence of the Office of the General Coun-
(g) Carry out the functions vested in sel.
the Secretary by 45 U.S.C. Ch. 15 (sec- (q) Carry out the functions vested in
tion 601 et seq.) with respect to emer- the Secretary by 23 U.S.C. 327, as it re-
gency rail services, except the author- lates to railroad projects.
ity to make findings required by 45 (r) Carry out the functions vested in
U.S.C. 662(a) and the authority to sign the Secretary by the sections 1318(d)
guarantees of certificates issued by and 1534 of Moving Ahead for Progress
trustees. in the 21st Century Act (Pub. L. 112–
(h) Carry out the functions vested in 141, 126 Stat. 405), as they relate to rail-
the Secretary by 45 U.S.C. chapter 17 roads.
(section 801 et seq.) with respect to rail- (s) Carry out the functions vested in
road revitalization and regulatory re- the Secretary by section 2(d)(2) of Ex-
form and the Railroad Rehabilitation ecutive Order 12777, with respect to rail
and Improvement Financing program. transportation, relating to the ap-
(i) Carry out the functions vested in proval of means to ensure the avail-
the Secretary by 45 U.S.C. chapter 21 ability of private personnel and equip-
(section 1201 et seq.) related to the Alas- ment to remove, to the maximum ex-
ka Railroad transfer. tent practicable, a worst case dis-
(j) Except as delegated to the Under charge, the review and approval of re-
Secretary of Transportation for Policy sponse plans, and the authorization of
41
railroads to operate without approved use of historic resources for public

response plans. transportation projects.
(d) Section 303 of title 49, United
§ 1.90 The Federal Transit Administra- States Code, as it involves public
tion.
transportation projects.
Is responsible for: (e) The following sections of Moving
(a) Providing grants that support the Ahead for Progress in the 21st Century
development of safe, comprehensive Act (Pub. L. 112–141, 126 Stat. 405):
and coordinated public transportation
(1) Sections 1315 [23 U.S.C. 109 note],
systems;
1316 [23 U.S.C. 109 note], 1317 [23 U.S.C.
(b) Creating and implementing a na-
tional public transportation safety pro- 109 note], 1318 [23 U.S.C. 109 note], and
gram that includes the development of 1321, as they relate to public transit
safety practices and standards; projects; and
(c) Assisting public transportation (2) Sections 20005(b) [49 U.S.C. 5303
systems to achieve and maintain their note], 20008(b) [49 U.S.C. 5309 note],
infrastructure, equipment and vehicles 20013(b) [49 U.S.C. 5315 note], 20017(b) [49
in a state of good repair; U.S.C. 5324 note], 20021(b), and 20025(b)
(d) Promoting the environmental [49 U.S.C. 5335 note].
benefits of public transportation (f) Section 601 of the Passenger Rail
through continuing, cooperative, and Investment and Improvement Act of
comprehensive planning that improves 2008 (Pub. L. 110–432, Div. B).
the performance of the intermodal
transportation system. § 1.92 The Maritime Administration.
(e) Supporting research, develop- Is responsible for:
ment, demonstration, and deployment
(a) Fostering the development and
projects dedicated to assisting in the
maintenance of a United States mer-
delivery of safe, efficient and effective
public transportation service; chant marine sufficient to meet the
(f) Supporting, in coordination with needs of the national security and of
FHWA and FRA, strong connections the domestic and foreign commerce of
between public transportation and the United States;
other modes of transportation, includ- (b) Operating the U.S. Merchant Ma-
ing bicycle/pedestrian facilities and rine Academy in order to train officers
station-area development that for the Nation’s merchant marine;
strengthen local communities; and (c) Promoting development of ports
(g) Maximizing the positive impacts and intermodal transportation systems
on the U.S. economy by encouraging through investments in port infra-
domestic manufacturing on transit structure via grant programs and
projects through the enforcement of America’s Marine Highway program;
Buy America provisions. (d) Promoting the growth and mod-
ernization of the U.S. merchant marine
§ 1.91 Delegations to the Federal Tran-
sit Administrator. and U.S. shipyards by administering
loan and guarantee programs;
The Federal Transit Administrator is
(e) Overseeing the administration of
delegated authority to carry out the
cargo preference statutes;
following:
(a) Chapter 53 of title 49, United (f) Maintaining custody of, operating,
States Code, and notes thereto. and preserving ships in the National
(b) Sections 3 and 9 through 15 of the Defense Reserve Fleet as well as other
National Capital Transportation Act of vessels under the custody of MARAD
1969 (Pub. L. 91–143, 83 Stat. 320), as and managing, maintaining and oper-
amended (DC Code, section 9–1101.01 et ating its Ready Reserve Force compo-
seq.). nent;
(c) Sections of title 23, United States (g) Conducting research and develop-
Code, and notes thereto that involve ment to improve and promote the wa-
public transportation projects, includ- terborne commerce of the United
ing those provisions that pertain to States.

planning, environmental reviews and
42
§ 1.93 Delegations to the Maritime Ad- (h) Carry out the following powers
ministrator. and duties and exercise the authorities
The Maritime Administrator is dele- vested in the Secretary by the Deep-
gated authority to: water Port Act of 1974, Public Law 93–
627, as amended (33 U.S.C. 1501 et seq.):
(a) Carry out the functions and exer-
(1) Section 4: The authority to issue,
cise the authorities vested in the Sec-
transfer, amend, or reinstate a license
retary under Subtitle V of title 46,
for the construction and operation of a
U.S.C., except for 46 U.S.C. 51303 and
deepwater port (33 U.S.C. 1503(b));
55601(c) and (d);
(2) Section 4: The authority to proc-
(b) Carry out the functions and exer- ess applications for the issuance, trans-
cise the authorities vested in the Sec- fer, amendment, or reinstatement of a
retary under Subtitle III of title 46, license for the construction and oper-
U.S.C.; ation of a deepwater port (33 U.S.C.
(c) Carry out the functions and exer- 1503(b)), in coordination with the Com-
cise the authorities vested in the Sec- mandant of the Coast Guard;
retary under the Merchant Ship Sales (3) Section 5(h)(2): Approval of fees
Act of 1946, as amended (50 U.S.C. App. charged by adjacent coastal States for
1735 et seq.); use of a deepwater port and directly re-
(d) Carry out the functions and exer- lated land-based facilities (33 U.S.C.
cise the authorities vested in the Sec- 1504(h)(2));
retary under 50 U.S.C. App 1744 with re- (4) Section 4: Make Adjacent Coastal
spect to the National Shipping Author- State designations pursuant to 33
ity; U.S.C. 1508(a)(2);
(e) Exercise the authority vested in (5) Section 11: In collaboration with
the Administrator of General Services the Assistant Secretary for Aviation
by the Act of June 1, 1948, Public Law and International Affairs and the As-
80–566, 62 Stat. 281, 40 U.S.C. 318–318c sistant Secretary for Transportation
and the Federal Property and Adminis- Policy, consultation with the Sec-
trative Services Act of 1949, as amend- retary of State relating to inter-
ed, Public Law 81–152, 63 Stat. 377, and national actions and cooperation in the
delegated to the Secretary of Transpor- economic, trade and general transpor-
tation by the Administrator of General tation policy aspects of the ownership
Services on March 23, 2000, relating to and operation of deepwater ports (33
the enforcement of laws for the protec- U.S.C. 1510);
tion of property and persons at the (6) Section 16(b): Submission of no-
United States Merchant Marine Acad- tice of the commencement of a civil
emy, located in Kings Point, New suit (33 U.S.C. 1515(b));
York. This may be accomplished (7) Section 16(c): Intervention in any
through appointment of uniformed per- civil action to which the Secretary is
sonnel as special police, establishment not a party (33 U.S.C. 1515(c));
of rules and regulations governing con- (8) Sections 8(b), 12: Authority to re-
duct on the affected property, and exe- quest the Attorney General to seek the
cution of agreements with other Fed- suspension or termination of a deep-
eral, State, or local authorities. water port license and to initiate a pro-
(f) Carry out the functions and exer- ceeding before the Surface Transpor-
cise the authorities vested in the Sec- tation Board (33 U.S.C. 1507, 1511);
retary by section 3(d) of the Act to Pre- (i) Carry out the functions and exer-
vent Pollution from Ships (33 U.S.C. cise the authority vested in the Sec-
1902(d)) as it relates to ships owned or retary by section 109 of the Maritime
operated by the Maritime Administra- Transportation Security Act of 2002,
tion when engaged in noncommercial Public Law 107–295, 116 Stat. 2064, 46
service; U.S.C. 70101 note, to provide training
(g) Carry out the functions vested in for maritime security professionals;
the Secretary by 40 U.S.C. 554 relating (j) Exercise all the powers of the Sec-
to authority to convey surplus real retary under 49 U.S.C. 336 with respect
property to public entities for use in to civil penalties;
the development or operation of port (k) Carry out all of the duties, au-
facilities; thorities and powers of the Secretary
43
under the Reefs for Marine Life Con- of property under 41 CFR 102–72.30, Del-
servation law, 16 U.S.C. 1220 et seq.; egations of Authority;
(l) In consultation and coordination (q) Carry out all of the duties, au-
with the Office of Intelligence, Secu- thorities and powers vested in the Sec-
rity and Emergency Response, carry retary by 46 U.S.C. 70101 note, to pro-
out the functions under the Defense vide training for maritime security
Production Act of 1950, Public Law 81– professionals;
774, 64 Stat. 798, as amended (50 U.S.C. (r) Carry out the duties, authorities
app. 2061 et seq.), that were vested in and powers of the Secretary under the
the Secretary by Executive Order 13603 following statutes:
(‘‘National Defense Resources Pre- (1) Title XV, Subtitle B of the Food,
paredness’’) as such authorities relate Agriculture, Conservation, and Trade
to the use of sealift support and port Act of 1990, Public Law 101–624 (104
facilities, and other maritime industry Stat. 3359, 3665), 7 U.S.C. 1421 and Chap-
related facilities and services, and mar-
ter 553 of Title 46, U.S.C., authorizing
itime-related voluntary agreements
the Secretary to designate ‘‘American
pursuant to Section 708 of the Act;
Great Lakes’’ vessels that are exempt
(m) Carry out the functions related from the restrictions relating to the
to the National Defense Reserve Fleet
carriage of preference cargoes;
vested in the Secretary pursuant to 50
(2) 46 U.S.C. 2302(e) (determination of
U.S.C. App. 1744;
substandard vessels);
(n) Carry out all of the duties, au-
thorities and powers of the Secretary (3) Section 304(a) of Coast Guard and
under the following statutes: Maritime Transportation Act of 2006, 33
U.S.C. 1503(i), a program to promote
(1) 10 U.S.C. 2218, the National De-
fense Sealift Fund; liquefied natural gas tanker transpor-
tation;
(2) 40 U.S.C. 3134, Bond waiver au-
thority for certain contracts; (4) Section 306 of Public Law 111–281,
concerning the phaseout of vessels sup-
(3) 46 U.S.C. 501(b), Waiver of naviga-
tion and vessel-inspection laws and de- porting oil and gas development;
termination of non-availability of (s) Carry out the functions and exer-
qualified U.S. flag vessels; cise the authorities vested in the Presi-
(4) 46 U.S.C. 3316, granting authority dent by Section 1019 of John Warner
to appoint a representative to Execu- National Defense Authorization Act for
tive Board of the American Bureau of Fiscal Year 2007 (Pub. L. 109–364) and
Shipping (ABS); delegated to the Secretary by the
(5) 46 U.S.C. 12119(a)(5), authority to President;
waive or reduce the qualified propri- (t) Lead efforts pertaining to civil
etary cargo requirements and deter- emergency planning for sealift support
mine citizenship; for North Atlantic Treaty Organization
(6) 50 U.S.C. 196, Emergency foreign (NATO) operations, including coordi-
vessel acquisition; purchase and req- nating DOT representation on sealift-
uisition of vessels lying idle in United related committees, in coordination
States waters; with the Office of Intelligence, Secu-
(7) 50 U.S.C. 197, Voluntary purchase rity and Emergency Response;
or charter agreement; (u) Carry out the duties, functions,
(8) 50 U.S.C. 198, granting authority authorities, and powers of the Sec-
over requisitioned vessels; retary under 49 U.S.C. 109(e), (f), (h),
(o) Carry out all of the duties, au- (j)(3);
thorities and powers of the Secretary (v) Carry out all of the duties, au-
with respect to 16 U.S.C. 1220 et seq. thorities, and powers of the Secretary
(use of obsolete ships as reefs for ma- of Transportation, with respect to mat-
rine life conservation); ters involving the Clarification Act,
(p) Carry out all of the duties, powers Public Law 78–17, 57 Stat. 45, as amend-
and authorities delegated to the Sec- ed (50 U.S.C. App. 1291);
retary of Transportation by the Ad- (w) Carry out all of the duties, au-
ministrator of General Services with thorities, and powers of the Secretary

respect to the leasing and management under 46 U.S.C. 12102(d).
44
§ 1.94 The National Highway Traffic § 1.95 Delegations to the National

Safety Administration. Highway Traffic Safety Adminis-
trator.
Is responsible for:
(a) In highway safety, setting uniform The National Highway Traffic Safety
guidelines for a coordinated national Administrator is delegated authority
highway safety formula grant program to:
carried out by the States and local (a) Exercise the authority vested in
communities; conducting research and the Secretary under chapters 301, 303,
development activities, including dem- 321, 323, 325, 327, 329, and 331, of Title 49,
onstration projects and the collection U.S.C., except for 49 U.S.C. 32916(b).
and analysis of highway and motor ve- (b) Exercise the authority vested in
hicle safety data and related informa- the Secretary by 49 U.S.C. 20134(a) with
tion; administering highway safety respect to laws administered by the
grant programs to encourage State ef- National Highway Traffic Safety Ad-
forts in such areas as occupant protec- ministration pertaining to highway,
tion, impaired and distracted driving, traffic and motor vehicle safety.
traffic safety data information system (c) Carry out, in coordination with
improvements, motorcyclist safety, the Federal Motor Carrier Safety Ad-
child safety restraints, and graduated ministrator, the authority vested in
driver’s licensing; determining State the Secretary by subchapter III of
compliance with highway traffic safety chapter 311 of title 49, U.S.C., to pro-
law requirements; administering a na- mulgate safety standards for commer-
tionwide high visibility enforcement cial motor vehicles and equipment sub-
program; administering the National sequent to initial manufacture when
Driver Register; and leading and co- the standards are based upon and simi-
ordinating efforts to establish, expand, lar to a Federal Motor Vehicle Safety
and improve State, local, tribal, and Standard promulgated, either simulta-
regional emergency medical services neously or previously, under chapter
and 9–1–1 systems. 301 of title 49, U.S.C.
(b) In motor vehicle safety, estab- (d) Carry out the Highway Safety Act
lishing and enforcing safety standards of 1966, as amended (Pub. L. 89–564, 80
and regulations for the manufacture Stat. 731), for highway safety pro-
and importation of motor vehicles and grams, research, and development ex-
motor vehicle equipment; conducting cept those relating to highway design,
research, development, and testing construction and maintenance, traffic
concerning motor vehicle safety, in- control devices, identification and sur-
cluding vehicle-to-vehicle and vehicle- veillance of crash locations, and high-
to-infrastructure technologies and way-related aspects of pedestrian safe-
other new or advanced vehicle tech- ty.
nologies; and investigating safety-re- (e) Exercise the authority vested in
lated defects and non-compliance in the Secretary under chapter 4 of title
motor vehicles and motor vehicle 23, U.S.C., except for 23 U.S.C. 409.
equipment and administering related (f) Carry out the functions and exer-
recalls. cise the authority vested in the Sec-
(c) In automobile fuel economy, estab- retary for the following provisions of
lishing automobile fuel economy stand- title 23, U.S.C. (with respect to matters
ards for passenger and non-passenger within the primary responsibility of
automobiles and fuel efficiency stand- the National Highway Traffic Safety
ards for medium and heavy vehicles. Administration): 153, 154, 158, 161, 163,
(d) In consumer protection and informa- 164, and 313 (Buy America).
tion, establishing requirements and (g) Carry out the consultation func-
carrying out programs for passenger tions vested in the Secretary by Execu-
motor vehicle information, such as the tive Order 11912, as amended (‘‘Delega-
New Car Assessment Program; bumper tion of Authorities Relating to Energy
standards for passenger motor vehicles; Policy and Conservation’’) relating to
odometer requirements; and passenger automobiles.
motor vehicle theft prevention stand- (h) Exercise the authority vested in
ards. the Secretary by section 210(2) of the
45
Clean Air Act, Public Law 90–148, as (9) Section 242 [42 U.S.C. 17051], relat-
amended [42 U.S.C. 7544(2)]. ing to renewable fuel dispenser require-
(i) Carry out the functions and exer- ments; and
cise the authority vested in the Sec- (10) Section 248(a) [42 U.S.C. 17054(a)],
retary by the following sections of the relating to biofuels distribution and
Safe, Accountable, Flexible, Efficient advanced biofuels infrastructure.
Transportation Equity Act: A Legacy (k) Carry out the functions and exer-
for Users, Public Law 109–59: cise the motor vehicle safety authority
(1) Section 1906 [23 U.S.C. 402 note], vested in the Secretary under section
relating to the grant program to pro- 7103 of the Transportation Equity Act
hibit racial profiling; for the 21st Century, Public Law 105–
(2) Section 2010 [23 U.S.C. 402 note], 178.
relating to motorcyclist safety; (l) Carry out the functions and exer-
(3) Section 2011 [23 U.S.C. 405 note], cise the motor vehicle safety authority
relating to child safety and child boost- vested in the Secretary under sections
er seat incentive grants; 3(d), 10, 11 and 13 through 17 [uncodified
(4) Section 10202 [42 U.S.C. 300d–4], re- provisions] of the Transportation Re-
lating to emergency medical services, call Enhancement, Accountability, and
as amended by section 31108 of the Documentation (TREAD) Act, Public
Moving Ahead for Progress in the 21st Law 106–414.
Century Act, Public Law 112–141; (m) Carry out the functions and exer-
(5) Section 10305(b) [49 U.S.C. 30101 cise the motor vehicle safety authority
note], relating to the publication of vested in the Secretary under Anton’s
non-traffic incident data collection; Law, Public Law 107–318.
and (n) Carry out the functions and exer-
(6) Section 10309(a), relating to the cise the motor vehicle safety authority
testing of 15-passenger van safety. vested in the Secretary under the Cam-
(j) Carry out the following functions eron Gulbransen Kids Transportation
and exercise the authority vested in Safety Act of 2007 or the K.T. Safety
the Secretary under the Energy Inde- Act of 2007, Public Law 110–189.
pendence and Security Act of 2007 (Pub. (o) Carry out the functions and exer-
L. 110–140): cise the motor vehicle safety authority
(1) Section 106 [49 U.S.C. 32902 note], vested in the Secretary under the Pe-
relating to the continued applicability destrian Safety Enhancement Act of
of existing standards; 2010, Public Law 111–373.
(2) Section 107 [49 U.S.C. 32902 note], (p) Carry out the functions and exer-
relating to the National Academy of cise the authority vested in the Sec-
Sciences studies; retary by the following sections of the
(3) Section 108, relating to the Na- Moving Ahead for Progress in the 21st
tional Academy of Sciences study of Century Act, Public Law 112–141:
medium-duty and heavy-duty truck (1) Sections 31101(d) and (f) (23 U.S.C.
fuel economy; 402 note), Authorization of Appropria-
(4) Section 110 [49 U.S.C. 32908 note], tions;
relating to the periodic review of accu- (2) Sections 31203(b), Civil Penalty
racy of fuel economy labeling; Criteria Rule, 31301, Public Availability
(5) Section 113 [49 U.S.C. 32904 note], of Recall Information, 31302, NHTSA
relating to the exemption from sepa- Outreach to Manufacturer, Dealer, and
rate calculation requirement; Mechanic Personnel, 31309(a), Study of
(6) Section 131(b)(2) and (c)(1) [42 Crash Data Collection, 31401, NHTSA
U.S.C. 17011(b)(2), (c)(1)], relating to the Electronics, Software, and Engineering
Plug-in Electric Drive Vehicle Pro- Expertise, 31402, Electronics Systems
gram; Performance, 31501, Child Safety Seats,
(7) Section 225(a), relating to the 31502, Child Restraint Anchorage Sys-
study of optimization of flexible fueled tems, 31503, Rear Seat Belt Reminders,
vehicles to use E–85 fuel; 31504, Unattended Passenger Remind-
(8) Section 227(a), relating to the ers, 31505, New Deadline, and 31601,
study of optimization of biogas used in Rulemaking on Visibility of Agricul-

natural gas vehicles; tural Equipment;
46
(3) Section 32201, Crashworthiness § 1.97 Delegations to the Pipeline and

Standards; and Hazardous Materials Safety Admin-
(4) Sections 32703, Regulations for istrator.
Improved Occupant Protection, Pas- The Pipeline and Hazardous Mate-
senger Evacuation, and Crash Avoid- rials Safety Administrator is delegated
ance, 32704, Fire Prevention and Miti- responsibility to:
gation, 32705, Occupant Protection, (a) Pipelines. (1) Exercise the author-
Collision Avoidance, Fire Causation, ity vested in the Secretary under chap-
and Fire Extinguisher Research and ter 601 of title 49, U.S.C.
Testing, and 32706, Concurrence of Re- (2) Exercise the authority vested in
search and Rulemaking. the Secretary under section 28 of the
(q) Carry out the functions and exer- Mineral Leasing Act, as amended (30
cise the authority vested in the Sec- U.S.C. 185(a) and 30 U.S.C. 185(w)(3)).
retary to implement section 3(g)–(h) of (3) Exercise the authority vested in
the Automobile Information Disclosure the Secretary under section 21 of the
Act (Pub. L. 85–506, 72 Stat. 325), as Deepwater Port Act of 1974, as amended
amended (15 U.S.C. 1232(g)–(h)). (33 U.S.C. 1520) relating to the estab-
lishment, enforcement and review of
§ 1.96 The Pipeline and Hazardous Ma- regulations concerning the safe con-
terials Safety Administration. struction, operation or maintenance of
Is responsible for: oil or natural gas pipelines on Federal
(a) Pipelines. (1) Administering a na- lands and the Outer Continental Shelf.
tional program of safety in natural gas (4) Carry out the functions vested in
and hazardous liquid pipeline transpor- the Secretary by section 5 (as it relates
tation including identifying pipeline to pipelines not over navigable water-
safety concerns, developing uniform ways) and section 8(a) (as it relates to
safety standards, and promulgating pipelines) of the International Bridge
and enforcing safety regulations; Act of 1972 (Pub. L. 92–434, 86 Stat. 731)
(33 U.S.C. 535c and 535e(a)).
(2) Increasing the gas and liquid pipe-
(5) Exercise the authority vested in
line industry’s focus on safety beyond
the Secretary under the Outer Conti-
compliance with minimum standards,
nental Shelf Lands Act, as amended (43
with particular attention to developing
U.S.C. 1331 et seq.) with respect to the
strong safety cultures in regulated en-
establishment, enforcement and review
tities;
of regulations concerning pipeline safe-
(3) Enhancing information awareness ty.
systems at the State and local levels to (6) Carry out the functions vested in
reduce pipeline damage from exca- the Secretary by section 7 of Executive
vation and providing grants to support Order 12580 (delegating sections 108 and
these systems; and 109, respectively, of the Comprehensive
(4) Encouraging the timely replace- Environmental Response, Compensa-
ment of aging and deteriorating pipe- tion, and Liability Act of 1980 as
lines in distribution systems, espe- amended (49 U.S.C. 9615 et seq.), insofar
cially in areas with high potential neg- as they relate to pipelines.
ative consequences to public safety and (7) Exercise the authority vested in
the environment. the Secretary by 49 U.S.C. 60301 as it
(b) Hazardous materials. (1) Admin- relates to pipeline safety user fees.
istering a national program of safety, (8) Exercise the authority vested in
including security, in multi-modal haz- the Secretary by 49 U.S.C. 6101 et seq. as
ardous materials transportation in- it relates to pipeline damage preven-
cluding identifying hazardous mate- tion One Call programs.
rials safety concerns, developing uni- (9) Exercise the authority vested in
form safety standards, and promul- the Secretary by the Pipeline Safety
gating and enforcing safety and secu- Improvement Act of 2002 (Pub. L. 107–
rity regulations; and 355, 116 Stat. 2985).
(2) Conducting outreach and provide (10) Exercise the authority vested in
available grants assistance to increase the Secretary by the Pipeline Safety,
awareness and emergency prepared- Regulatory Certainty, and Job Cre-

ness. ation Act of 2011 (Pub. L. 112–90).
47
(b) Hazardous materials. Except as del- (2) Section 2(d)(2) relating to the
egated to the Under Secretary of issuance of regulations requiring the
Transportation for Policy by § 1.25: owners or operators of pipelines, motor
(1) Carry out the functions vested in carriers, and railroads, subject to the
the Secretary by 49 U.S.C. 5121(a), (b), Federal Water Pollution Control Act
(c), (d) and (e), 5122, 5123, and 5124, with (33 U.S.C. 1321 et seq.), to prepare and
particular emphasis on the shipment of submit response plans. For pipelines
hazardous materials and the manufac- subject to the Federal Water Pollution
ture, fabrication, marking, mainte- Control Act, this authority includes
nance, reconditioning, repair or test of the approval of means to ensure the
multi-modal containers that are rep- availability of private personnel and
resented, marked, certified, or sold for
equipment to remove, to the maximum
use in the transportation of hazardous
extent practicable, a worst case dis-
materials; and
(2) Participate, with the Adminis- charge, the review and approval of re-
trator of the Federal Aviation Admin- sponse plans, and the authorization of
istration, in the Dangerous Goods pipelines to operate without approved
Panel at the International Civil Avia- response plans.
tion Organization, under the authority
vested in the Secretary by 49 U.S.C. § 1.98 The Research and Innovative
Technology Administration.
5120; and
(3) Carry out, in coordination with Is responsible for:
the Administrators of the Federal (a) Coordinating, facilitating, and re-
Aviation Administration (for matters viewing the Department’s research and
relating to the transport of hazardous development programs and activities,
materials by aircraft), the Federal except as related to NHTSA;
Motor Carrier Safety Administration (b) After consultation with Operating
(for matters relating to the transport Administration and OST offices, mak-
of hazardous materials by public high- ing recommendations to the Secretary
way), and the Federal Railroad Admin- on all Operating Administration and
istration (for matters relating to the OST research budgets;
transport of hazardous materials by
(c) Providing leadership on technical,
rail), the functions vested in the Sec-
retary by all other provisions of the navigation, communication, and sys-
Federal hazardous material transpor- tems engineering activities, and spec-
tation law (49 U.S.C. 5101 et seq.) except trum management on behalf of the
as delegated by §§ 1.83(d)(2) and (3) civil and civilian PNT communities;
(FAA) and 1.87(d)(2) (FMCSA) and by (d) Directing and administering uni-
paragraph 2(99) of Department of versity transportation research grants;
Homeland Security Delegation No. (e) In coordination with FHWA,
0170. NHTSA, and FMCSA, conducting vehi-
(4) Exercise the authority vested in cle-to-vehicle and vehicle-to-infra-
the Secretary by sections 33005 (49 structure research;
U.S.C. 5121 note), 33006, 33008 (49 U.S.C. (f) Advancing Intelligent Transpor-
5121 note), 33009(b)(2) (49 U.S.C. 5121 tation Systems (ITS) research and de-
note), and 33012 (49 U.S.C. 5117 note) of ployment of real-time multi-modal
the Moving Ahead for Progress in the travel information for travelers, car-
21st Century Act (Pub. L. 112–141, 126 riers, and public agencies;
Stat. 405). (g) Providing oversight of the activi-
(c) Exercise the authority delegated ties of the Volpe National Transpor-
to the Secretary in the following sec-
tation Systems Center, the ITS Joint
tions of Executive Order 12777:
Program Office, the Bureau of Trans-
(1) Section 2(b)(2) relating to the es-
tablishment of procedures, methods, portation Statistics, and the Transpor-
equipment and other requirements to tation Safety Institute; and
prevent discharges from, and to con- (h) Providing technical support to ad-
tain oil and hazardous substances in, vance the mission of the Secretary’s
pipelines, motor carriers, and rail- Safety Council.

roads; and
48
§ 1.99 Delegations to the Research and (5) Advocate Department of Trans-

Innovative Technology Adminis- portation policy and program coordina-
trator. tion efforts associated with transpor-
The Research and Innovative Tech- tation research.
nology Administrator is delegated au- (6) Represent the Department of
thority for the following: Transportation on departmental, na-
(a) Coordination of departmental re- tional and international committees
search and development programs and ac- and meetings dealing with transpor-
tivities. (1) Coordinate, facilitate, and tation research and development (R &
review all departmental research and D).
development programs and activities, (7) Manage the strategic planning
except those carried out by the Na- process for transportation R & D across
tional Highway Traffic Safety Admin- the Department of Transportation and,
istration, as described in section 4(b) of through the National Science and
the Norman Y. Mineta Research and Technology Council, across the Federal
Special Programs Improvement Act Government.
(Pub. L. 108–426, 118 Stat. 2423). (8) Carry out the transportation re-
(2) After consultation with Operating search and development strategic plan-
Administration and OST offices, RITA ning function vested in the Secretary
shall make recommendations to the by 23 U.S.C. 508.
Secretary on all Operating Administra- (9) Conduct transportation system-
tion and OST research budgets. level assessments and policy research.
(b) Science and technology. (1) With re- (10) Facilitate the creation of trans-
spect to scientific and technological portation public/private partnerships.
matters, serve as principal advisor to (11) Foster innovation in the trans-
the Secretary and representative of the portation sector.
Department to the academic commu- (12) Disseminate information on de-
nity, the private sector, professional partmental, national, and inter-
organizations, and other federal, state national transportation R & D activi-
and local government agencies. ties.
(2) Serve as principal liaison official (13) Provide legal support for Depart-
for the Department of Transportation mental intellectual property and pat-
with the Office of Science and Tech- ent issues.
nology Policy in the Executive Office (14) Manage department- and govern-
of the President, the National Science ment-wide (inter/multimodal) trans-
and Technology Council, and the Presi- portation R & D programs.
dent’s Committee of Advisors on (15) Oversee such advisory boards
Science and Technology. that deal with transportation system-
(3) Serve as primary official respon- level R & D assessments and issues,
sible for coordination and oversight of such as the Transportation Research
the Department’s implementation of Board Committee on the Federal
section 2 of the Federal Technology Transportation R & D Strategic Plan-
Transfer Act of 1986 (15 U.S.C. 3710a), ning Process.
relating to the transfer of Federal (c) Advanced vehicle technology. Carry
technology to the marketplace; and out the functions vested in the Sec-
section 12(d) of the National Tech- retary by section 5111 of the Transpor-
nology Transfer and Advancement Act tation Equity Act for the 21st Century
of 1996 (Pub. L. 104–113), as imple- (49 U.S.C. 5506), as extended by the Sur-
mented by OMB Circular A–119: Federal face Transportation Extension Act of
Participation in the Development and 2004, Part V, Public Law 108–310, Sep-
Use of Voluntary Consensus Standards tember 30, 2004, 118 Stat. 1144, and sec-
and in Conformity Assessment Activi- tion 5513(j) of SAFETEA–LU.
ties. (d) Remote sensing technology. Carry
(4) Serve as Chair and Executive Sec- out the functions vested in the Sec-
retary of the Department of Transpor- retary by section 5113 of the Transpor-
tation’s Research, Development and tation Equity Act for the 21st Century
Technology Planning Council and (23 U.S.C. 502 Note), as extended by the
Planning Team. Surface Transportation Extension Act
49
of 2004, Part V, Public Law 108–310, Sep- U.S.C. 41701 (relating to establishing
tember 30, 2004, 118 Stat. 1144, and sec- just and reasonable classifications of
tion 5506 of SAFETEA–LU. carriers and rules to be followed by
(e) University transportation research. each) as appropriate to carry out the
Carry out the functions vested in the responsibilities under this paragraph in
Secretary by section 5110 of the Trans- conjunction with the General Counsel
portation Equity Act for the 21st Cen- and the Assistant Secretary for Avia-
tury (49 U.S.C. 5505), as extended by the tion and International Affairs.
Surface Transportation Extension Act (k) Hazardous materials information. In
of 2004, Part V, Public Law 108–310, Sep- coordination with the Under Secretary,
tember 30, 2004, 118 Stat. 1144, and sec- work with the Operating Administra-
tions 5401 and 5402 of SAFETEA–LU. tions to determine data needs, collec-
(f) Volpe National Transportation Sys- tion strategies, and analytical tech-
tems Center. Exercise the authority niques appropriate for implementing 49
vested in the Secretary with respect to U.S.C. 5101 et seq.
the activities of the Volpe National (l) Carry out the functions vested in
Transportation Systems Center as de- the Secretary by section 1801(e) of
scribed in 49 U.S.C. 112(d)(1)(E) and SAFETEA–LU (establishing and main-
carry out the functions vested in the taining a national ferry database).
Secretary by 49 U.S.C. 328 with respect (m) Carry out the functions vested in
to the working capital fund for financ-
the Secretary by section 5513(c), (d),
ing the activities of the Volpe National
(g), (h), (i), (l), and (m) of SAFETEA–
Transportation Systems Center.
LU (establishing various research
(g) Exercise authority over the
grants).
Transportation Safety Institute.
(n) Carry out the functions vested in
(h) Carry out the functions vested in
the Secretary by section 5201(m) of
the Secretary by 49 U.S.C. 111 relating
SAFETEA–LU (biobased transpor-
to transportation statistics, analysis,
tation research program).
and reporting.
(i) Carry out the functions vested in (o) Carry out the functions vested in
the Secretary by 49 U.S.C. 5503(d) (Of- the Secretary by 23 U.S.C. 509 (estab-
fice of Intermodalism). lishing and supporting a national coop-
(j) Aviation information. (1) Carry out erative freight transportation research
the functions vested in the Secretary program).
by 49 U.S.C. 329(b)(1) relating to the (p) Positioning, navigation and timing
collection and dissemination of infor- (PNT) and spectrum management. Carry
mation on civil aeronautics. out the functions described in the Sec-
(2) Carry out the functions vested in retarial memo of August 1, 2007, ‘‘Posi-
the Secretary by section 4(a)(7) of the tioning, Navigation and Timing (PNT)
Civil Aeronautics Board Sunset Act of and Spectrum Management Realign-
1984 (Pub. L. 98–443) relating to the re- ment under the Research and Innova-
porting of the extension of unsecured tive Technology Administration
credit to political candidates (section (RITA).’’
401, Federal Election Campaign Act of (q) Carry out the Secretary’s author-
1971; 2 U.S.C. 451), in conjunction with ity to establish, operate and manage
the General Counsel and the Assistant the Nationwide Differential Global Po-
Secretary for Aviation and Inter- sitioning System (NDGPS) as described
national Affairs. in Section 346 of Public Law 105–66 (De-
(3) Carry out the functions vested in partment of Transportation and Re-
the Secretary by: 49 U.S.C. 40113 (relat- lated Agencies Appropriations Act of
ing to taking such actions and issuing 1998).
such regulations as may be necessary
to carry out its air commerce and safe- § 1.100 The Saint Lawrence Seaway
ty responsibilities), 49 U.S.C. 41702 (re- Development Corporation.
lating to the duty of carriers to provide Is responsible for the development,
safe and adequate service), 49 U.S.C. operation, and maintenance of that
41708 and 41709 (relating to the require- part of the Saint Lawrence Seaway
ment to keep information and the within the territorial limits of the
forms in which it is to be kept), and 49 United States.
50
Office of the Secretary of Transportation Pt. 1, App. A
§ 1.101 Delegations to the Saint Law- other Federal departments and agencies (28
rence Seaway Development Cor- CFR 0.66). The Assistant Attorney General,
poration Administrator. Land and Natural Resources Division, has
further delegated certain responsibilities in
The Administrator of the Saint Law- connection with the approval of the suffi-
rence Seaway Development Corpora- ciency of the title to land to the Department
tion is delegated authority to: of Transportation as follows:
(a) Carry out the functions vested in
Delegation to the Department of Transportation
the Secretary by sections 4, 5, 6, 7, 8, 12 for the Approval of the Title to Lands Being
and 13 of section 2 of the Port and Acquired for Federal Public Purposes
Tanker Safety Act of 1978 (Pub. L. 95–
Pursuant to the provision of Public Law
474, 92 Stat. 1471) [33 U.S.C. 1223–1225,
91–393, approved September 1, 1970, 84 Stat.
1227, and 1231–1232] as they relate to the 835, amending R.S. 355 (40 U.S.C. 255), and
operation of the Saint Lawrence Sea- acting under the provisions of Order No. 440–
way. 70 of the Attorney General, dated October 2,
(b) Carry out the functions vested in 1970, the responsibility for the approval of
the Secretary by section 5 and section the sufficiency of the title to land for the
8(a) of the International Bridge Act of purpose for which the property is being ac-
1972 (Pub. L. 92–434, 86 Stat. 731) [33 quired by purchase or condemnation by the
United States for the use of your Depart-
U.S.C. 535c and 535e(a)] as it relates to ment is, subject to the general supervision of
the Saint Lawrence River. the Attorney General and to the following
(c) Carry out the functions vested in conditions, hereby delegated to your Depart-
the Secretary by section 3(d) of the Act ment.
to Prevent Pollution from Ships [33 This delegation of authority is further sub-
U.S.C. 1902e] as it relates to ships ject to:
owned or operated by the Corporation 1. Compliance with the regulations issued
by the Assistant Attorney General on Octo-
when engaged in noncommercial serv- ber 2, 1970, a copy of which is enclosed.
ice. 2. This delegation is limited to:
(a) The acquisition of land for which the
APPENDIX A TO PART 1—DELEGATIONS title evidence, prepared in compliance with
AND REDELEGATIONS BY SECRE- these regulations, consists of a certificate of
TARIAL OFFICERS title, title insurance policy, or an owner’s
duplicate Torrens certificate of title.
1. Director of Budget. The Assistant Sec- (b) The acquisition of lands valued at
retary for Budget and Programs and CFO has $100,000 or less, for which the title evidence
redelegated to the Director of Budget au- consists of abstracts of title or other types of
thority to— title evidence prepared in compliance with
(a) Request apportionment and reappor- said regulations.
tionment of funds by the Office of Manage- As stated in the above-mentioned Act, any
ment and Budget, provided that no request Federal department or agency which has
for apportionment or reapportionment which been delegated the responsibility to approve
anticipates the need for a supplemental ap- land titles under the Act may request the
propriation shall be submitted to the Office Attorney General to render his opinion as to
of Management and Budget without appro- the validity of the title to any real property
priate certification by the Secretary. or interest therein, or may request the ad-
(b) Issue allotments or allocations of funds vice or assistance of the Attorney General in
to components of the Department. connection with determinations as to the
2. Chief Counsels. The General Counsel has sufficiency of titles.
delegated to the Chief Counsels the author- The Chief Counsels of the Federal Aviation
ity delegated to the General Counsel by Administration, Federal Highway Adminis-
Amendment 1–41 to part 1 of title 49, Code of tration, Federal Railroad Administration,
Federal Regulations, 35 FR 17658, November National Highway Traffic Safety Adminis-
17, 1970, as follows: tration, Federal Transit Administration, the
Section 855 of the Revised Statutes, as Saint Lawrence Seaway Development Cor-
amended by Public Law 91–393, 84 Stat. 835 poration, Maritime Administration, and Re-
(40 U.S.C. 255) authorizes the Attorney Gen- search and Innovative Technology Adminis-
eral to delegate to other departments and tration are hereby authorized to approve the
agencies his authority to give written ap- sufficiency of the title to land being acquired
proval of the sufficiency to the title to land by purchase or condemnation by the United
being acquired by the United States. The At- States for the use of their respective organi-
torney General has delegated to the Assist- zations. This delegation is subject to the
ant Attorney General in charge of the Land limitations imposed by the Assistant Attor-
and Natural Resources Division the author- ney General, Land and Natural Resources Di-
ity to make delegations under that law to vision, in his delegation to the Department
51
Pt. 3 49 CFR Subtitle A (10–1–19 Edition)
of Transportation. Redelegation of this au- PART 5—RULEMAKING
thority may only be made by the Chief Coun-
sels to attorneys within their respective or- PROCEDURES
ganizations.
If the organization does not have an attor- Subpart A—General
ney experienced and capable in the examina-
Sec.
tion of title evidence, a Chief Counsel may,
5.1 Applicability.
with the concurrence of the General Counsel,
5.3 Initiation of rulemaking.
request the Attorney General to (1) furnish
5.5 Participation by interested persons.
an opinion as to the validity of a title to real
5.7 Regulatory docket.
property or interest therein, or (2) provide
advice or assistance in connection with de-
termining the sufficiency of the title.
Subpart B—Petitions for Rulemaking or
Exemptions
PART 3—OFFICIAL SEAL 5.11 Filing of petitions.
5.13 Processing of petitions.
AUTHORITY: 49 U.S.C. 102(e). Subpart C—Procedures

SOURCE: Amdt. 3–3, 45 FR 75666, Nov. 17, 5.21 General.
1980, unless otherwise noted. 5.23 Contents of notices.
5.25 Petitions for extension of time to com-
§ 3.1 Description. ment.
5.27 Consideration of comments received.
The official seal of the Department of
5.29 Additional rulemaking proceedings.
Transportation is described as follows: 5.31 Hearings.
A white abstract triskelion figure sig- 5.33 Adoption of final rules.
nifying motion appears within a cir- 5.35 Procedures for direct final rulemaking.
cular blue field. The figure is symmet- APPENDIX A TO PART 5
rical. The three branches of the figure
AUTHORITY: Sec. 9, 80 Stat. 944 (49 U.S.C.
curve outward in a counter-clockwise
1657).
direction, each tapering almost to a
point at the edge of the field. Sur- SOURCE: 32 FR 10363, July 14, 1967, unless
rounding the blue circle is a circular otherwise noted.
ring of letters. The upper half of the
ring shows the words ‘‘Department of Subpart A—General
Transportation’’. The lower half of the
ring shows the words ‘‘United States of § 5.1 Applicability.
America’’. The letters may be shown in (a) This part prescribes general rule-
either black or medium gray. The offi- making procedures that apply to the
cial seal of the Department is modified issuance, amendment, and repeal of
when embossed. It appears below in rules of the Office of the Secretary of
black and white. Transportation. It does not apply to
rules issued by the Federal Aviation
Administration, Federal Highway Ad-
ministration, Federal Railroad Admin-
istration, Federal Transit Administra-
tion, Maritime Administration, Na-
tional Highway Traffic Safety Admin-
istration, Research and Special Pro-
grams Administration, St. Lawrence
Seaway Development Corporation, or
Federal Motor Carrier Safety Adminis-
tration.
(b) For the purposes of this part, Sec-
retary means the Secretary of Trans-
portation or the Under Secretary of
Transportation, or any of the following
to whom the Secretary has delegated
authority to conduct rulemaking pro-
ceedings:
(1) Any Assistant Secretary.
52
EC02FE91.096</GPH>
(2) The General Counsel. or for a permanent or temporary ex-

Any of these officers may redelegate emption from any rule.
that authority to the head of any office (b) Each petition filed under this sec-
who reports to him. tion must:
(c) Records relating to rulemaking (1) Be submitted in duplicate to the
proceedings are available for inspec- Docket Clerk, Office of the General
tion as provided in part 7 of this sub- Counsel, Department of Transpor-
title. tation, Washington, DC 20590;
(2) Set forth the text or substance of
[32 FR 10363, July 14, 1967, as amended by the rule or amendment proposed, or of
Amdt. 5–2, 35 FR 5331, Mar. 31, 1970; Amdt. 5–
3, 36 FR 430, Jan. 13, 1971; 69 FR 4457, Jan. 30,
the rule from which the exemption is
2004] sought, or specify the rule that the pe-
titioner seeks to have repealed, as the
§ 5.3 Initiation of rulemaking. case may be;
(3) Explain the interest of the peti-
The Secretary initiates rulemaking
tioner in the action requested includ-
on his own motion. However, in doing
ing, in the case of a petition for an ex-
so, he may, in his discretion, consider
emption, the nature and extent of the
the recommendations of other agencies
relief sought and a description of the
of the United States and of other inter-
persons to be covered by the exemp-
ested persons.
tion;
§ 5.5 Participation by interested per- (4) Contain any information and ar-
sons. guments available to the petitioner to
support the action sought; and
Any person may participate in rule-
(5) In the case of a petition for ex-
making proceedings by submitting
emption, unless good cause is shown in
written information or views. The Sec-
that petition, be submitted at least 60
retary may also allow any person to
days before the proposed effective date
participate in additional rulemaking
of the exemption.
proceedings, such as informal appear-
ances or hearings, held with respect to § 5.13 Processing of petitions.
any rule.
(a) General. Each petition received
§ 5.7 Regulatory docket. under § 5.11 of this part is referred to
the head of the office responsible for
(a) Records of the Office of the Sec-
the subject matter of that petition. No
retary of Transportation concerning
public hearing, argument, or other pro-
rulemaking actions, including notices
ceeding is held directly on a petition
of proposed rule making, comments re-
before its disposition under this sec-
ceived in response to those notices, pe-
tion.
titions for rulemaking or exemption,
petitions for rehearing or reconsider- (b) Grants. If the Secretary deter-
ation, grants and denials of exemp- mines that the petition contains ade-
tions, denials of petitions for rule mak- quate justification, he initiates rule-
ing, and final rules are maintained in making action under subpart C of this
current docket form in the Office of part or grants the exemption, as the
the General Counsel. case may be.
(b) Any person may examine any (c) Denials. If the Secretary deter-
docketed material at that office and mines that the petition does not justify
may obtain a copy of any docketed ma- initiating rule-making action or grant-
terial upon payment of the prescribed ing the exemption, he denies the peti-
fee. tion.
(d) Notification. Whenever the Sec-
retary determines that a petition
Subpart B—Petitions for should be granted or denied, the office
Rulemaking or Exemptions concerned and the Office of the General
Counsel prepare a notice of that grant
§ 5.11 Filing of petitions. or denial for issuance to the petitioner,
(a) Any person may petition the Sec- and the Secretary issues it to the peti-
retary to issue, amend, or repeal a rule, tioner.
53
Subpart C—Procedures § 5.25 Petitions for extension of time to

comment.
§ 5.21 General. (a) Any person may petition the Sec-
(a) Unless the Secretary finds, for retary for an extension of time to sub-
good cause, that notice is impractical, mit comments in response to a notice
unnecessary, or contrary to the public of proposed rulemaking. The petition
interest, a notice of proposed rule mak- must be submitted in duplicate not
ing is issued and interested persons are later than 3 days before expiration of
invited to participate in the rule- the time stated in the notice. The fil-
making proceedings with respect to ing of the petition does not automati-
each substantive rule. cally extend the time for petitioner’s
(b) Unless the Secretary determines comments.
that notice and public rulemaking pro- (b) The Secretary grants the petition
ceedings are necessary or desirable, in- only if the petitioner shows a sub-
terpretive rules, general statements of stantive interest in the proposed rule
policy, and rules relating to organiza- and good cause for the extension, and if
tion, procedure, or practice are pre- the extension is in the public interest.
scribed as final without notice or other If an extension is granted, it is granted
public rulemaking proceedings. as to all persons and is published in the
(c) In his discretion, the Secretary FEDERAL REGISTER.
may invite interested persons to par-
ticipate in the rulemaking proceedings § 5.27 Consideration of comments re-
ceived.
described in § 5.29 of this subpart.
(d) For rules for which the Secretary All timely comments are considered
determines that notice is unnecessary before final action is taken on a rule-
because no adverse public comment is making proposal. Late filed comments
anticipated, the direct final rule- may be considered so far as possible
making procedure described in § 5.35 of without incurring additional expense
this subpart may be followed. or delay.
[32 FR 10363, July 14, 1967, as amended at 69 § 5.29 Additional rulemaking pro-
FR 4458, Jan. 30, 2004] ceedings.
§ 5.23 Contents of notices. The Secretary may initiate any fur-
ther rulemaking proceedings that he
(a) Each notice of proposed rule- finds necessary or desirable. For exam-
making is published in the FEDERAL ple, he may invite interested persons to
REGISTER, unless all persons subject to present oral arguments, participate in
it are named and are personally served conferences, appear at informal hear-
with a copy of it. ings, or participate in any other pro-
(b) Each notice, whether published in ceeding.
the FEDERAL REGISTER or personally
served, includes: § 5.31 Hearings.
(1) A statement of the time, place, (a) Sections 556 and 557 of title 5,
and nature of the proposed rule-making United States Code, do not apply to
proceeding; hearings held under this part. As a
(2) A reference to the authority under fact-finding proceeding, each hearing is
which it is issued; nonadversary and there are no formal
(3) A description of the subjects or pleadings or adverse parties. Any rule
issues involved or the substance or issued in a case in which a hearing is
terms of the proposed rule; held is not necessarily based exclu-
(4) A statement of the time within sively on the record of the hearing.
which written comments must be sub- (b) The Secretary designates a rep-
mitted and the required number of cop- resentative to conduct any hearing
ies; and held under this part. The General
(5) A statement of how and to what Counsel designates a member of his
extent interested persons may partici- staff to serve as legal officer at the
pate in the proceeding. hearing.
54
Office of the Secretary of Transportation Pt. 6
§ 5.33 Adoption of final rules. verse comment within the specified

Final rules are prepared by rep- time of publication in the FEDERAL
resentatives of the office concerned REGISTER, a notice withdrawing the di-
and the Office of the General Counsel. rect final rule will be published in the
The rule is then submitted to the Sec- final rule section of the FEDERAL REG-
ISTER and, if the Office of the Secretary
retary for his consideration. If the Sec-
retary adopts the rule, it is published decides a rulemaking is warranted, a
in the FEDERAL REGISTER, unless all notice of proposed rulemaking will be
persons subject to it are named and are published in the proposed rule section
personally served with a copy of it. of the FEDERAL REGISTER.
(e) An ‘‘adverse’’ comment for the
§ 5.35 Procedures for direct final rule- purpose of this subpart means any
making. comment that the Office of the Sec-
(a) Rules that the Secretary judges retary determines is critical of the
to be noncontroversial and unlikely to rule, suggests that the rule should not
result in adverse public comment may be adopted, or suggests a change that
be published as direct final rules. These should be made in the rule. A comment
include noncontroversial rules that: suggesting that the policy or require-
(1) Affect internal procedures of the ments of the rule should or should not
Office of the Secretary, such as filing also be extended to other Departmental
requirements and rules governing in- programs outside the scope of the rule
spection and copying of documents, is not adverse.
(2) Are nonsubstantive clarifications [69 FR 4458, Jan. 30, 2004]49V1(17096): Appen-
or corrections to existing rules, dix A to Part 99
(3) Update existing forms,
(4) Make minor changes in the sub- APPENDIX A TO PART 5
stantive rules regarding statistics and
Pursuant to § 5.1(b), the following officials
reporting requirements, of the Office of the Secretary of Transpor-
(5) Make changes to the rules imple- tation are authorized to conduct rulemaking
menting the Privacy Act, and proceedings under this part, as specified in
(6) Adopt technical standards set by this appendix:
outside organizations. (1) The General Counsel is authorized to
(b) The FEDERAL REGISTER document conduct all rule-making proceedings, except
will state that any adverse comment or the issuance of final rules, under the Act of
notice of intent to submit adverse com- March 19, 1918, ch. 24, as amended (15 U.S.C.
261–264); the Uniform Time Act of 1966 (80
ment must be received in writing by Stat. 107, 15 U.S.C. 260–267); and section
the Office of the Secretary within the 6(e)(5) of the Department of Transportation
specified time after the date of publica- Act (80 Stat. 939, 49 U.S.C. 1655 (e)(5)).
tion and that, if no written adverse (2) The General Counsel is authorized to
comment or written notice of intent to determine the practicability of applying the
submit adverse comment is received, standard time of any standard time zone to
the rule will become effective a speci- the movements of any common carrier en-
gaged in interstate or foreign commerce,
fied number of days after the date of
and, under section 2 of the Act of March 19,
publication. 1918, ch. 24, as amended (15 U.S.C. 262), to
(c) If no written adverse comment or issue operating exceptions in any case in
written notice of intent to submit ad- which he determines that it is impractical to
verse comment is received by the Of- apply the standard time.
fice of the Secretary within the speci- [Amdt. 5–1, 32 FR 11473, Aug. 9, 1967]
fied time of publication in the FEDERAL
REGISTER, the Office of the Secretary
will publish a notice in the FEDERAL PART 6—IMPLEMENTATION OF
REGISTER indicating that no adverse EQUAL ACCESS TO JUSTICE ACT
comment was received and confirming IN AGENCY PROCEEDINGS
that the rule will become effective on
the date that was indicated in the di- Subpart A—General Provisions
rect final rule. Sec.
(d) If the Office of the Secretary re-
6.1 Purpose of these rules.

ceives any written adverse comment or 6.3 Applicability.
written notice of intent to submit ad- 6.5 Proceedings covered.
55
6.7 Eligibility of applications. § 6.3 Applicability.
6.9 Standards for awards.
6.11 Allowable fees and expenses. Section 6.9(a) applies to any adver-
6.13 Delegations of authority. sary adjudication pending before the
Department on or after October 1, 1981.
Subpart B—Information Required from In addition, applicants for awards must
Applicants also meet the standards of § 6.9(b) for
any adversary adjudication commenced
6.17 Contents of application.
on or after March 29, 1996.
6.19 Net worth exhibit.
6.21 Documentation of fees and expenses. [62 FR 19233, Apr. 21, 1997]
Subpart C—Procedures for Considering § 6.5 Proceedings covered.

Applications (a) The Act applies to adversarial ad-
6.23 Filing and service of documents. judications conducted by the Depart-
6.25 Answer to application. ment of Transportation. These are ad-
6.27 Comments by other parties. judications under 5 U.S.C. 554 in which
6.29 Settlement. the position of the Department is rep-
6.31 Further proceedings. resented by an attorney or other rep-
6.33 Decision. resentative who enters an appearance
6.35 Agency review. and participates in the proceeding.
6.37 Judicial review. Coverage of the Act begins at designa-
6.39 Payment of award. tion of a proceeding or issuance of a
AUTHORITY: 5 U.S.C. 504; 28 U.S.C. 2412. charge sheet. Any proceeding in which
the Department may prescribe or es-
SOURCE: 48 FR 1070, Jan. 10, 1983, unless
tablish a lawful present or future rate
otherwise noted.
is not covered by the Act. Proceedings
to grant or renew licenses are also ex-
Subpart A—General Provisions cluded, but proceedings to modify, sus-
pend, or revoke licenses are covered if
§ 6.1 Purpose of these rules.
they are otherwise ‘‘adversary adju-
The Equal Access to Justice Act, 5 dications.’’ For the Department of
U.S.C. 504 (called ‘‘the Act’’ in this Transportation, the types of pro-
part), provides for the award of attor- ceedings covered include, but may not
ney fees and other expenses to eligible be limited to: National Highway Traf-
individuals and entities who are parties fic Safety Administration (NHTSA)
to certain administrative proceedings automotive fuel economy enforcement
(called ‘‘adversary adjudications’’) be- under 49 CFR part 511; Federal Motor
fore government agencies, such as the Carrier Safety Administration
Department of Transportation or any (FMCSA) enforcement of motor carrier
of its operating administrations. The safety regulations under 49 CFR 386;
rules in this part describe the parties and the Department’s aviation eco-
eligible for awards and the proceedings nomic enforcement proceedings con-
that are covered. They also explain ducted by its Office of Aviation En-
how to apply for awards, and the proce- forcement and Proceedings pursuant to
dures and standards that this agency 14 CFR Chapter II. Also covered is any
will use to make them. The use of the hearing conducted under Chapter 38 of
term ‘‘Department’’, in this rule, will title 31 of the U.S. Code or the Reli-
be understood to mean the Department gious Freedom Restoration Act of 1993
of Transportation or any of its oper- (42 U.S.C. 2000bb et seq.).
ating administrations, unless other- (b) If a proceeding includes both mat-
wise specified. The term ‘‘agency counters covered by the Act and matters
sel’’ will be understood to mean coun- specifically excluded from coverage,
sel for the Department of Transpor- any award made will include only fees
tation or any of its operating adminis- and expenses related to covered issues.
trations.
[48 FR 1070, Jan. 10, 1983, as amended at 62

[48 FR 1070, Jan. 10, 1983, as amended at 62 FR 19233, Apr. 21, 1997; 81 FR 71385, Oct. 17,
FR 19233, Apr. 21, 1997] 2016]
56
§ 6.7 Eligibility of applications. (f) The net worth and number of em-
(a) To be eligible for an award of at- ployees of the applicant and all of its
torney fees and other expenses under affiliates shall be aggregated to deter-
the Act, the applicant must be a party mine eligibility. Any individual, cor-
to an adversary adjudication for which poration or other entity that directly
it seeks an award. The term ‘‘party’’ is or indirectly controls or owns a major-
defined in 5 U.S.C. 504(b)(1)(B). The ap- ity of the voting shares or other inter-
plicant must show that it meets all est of the applicant, or any corporation
conditions of eligibility set out in this or other entity of which the applicant
subpart and in paragraph (b) of this directly or indirectly owns or controls
section. a majority of the voting shares or
(b) The types of eligible applicants other interest, will be considered an af-
are as follows: filiate for purposes of this part, unless
(1) An individual with a net worth of the administrative law judge deter-
not more than $2 million; mines that such treatment would be
(2) The sole owner of an unincor- unjust and contrary to the purposes of
porated business who has a net worth the Act in light of the actual relation-
of not more than $7 million, including ship between the affiliated entities. In
both personal and business interests, addition, the administrative law judge
and not more than 500 employees. may determine that financial relation-
(3) A charitable or other tax-exempt ships of the applicant other than those
organization as described in section described in this paragraph constitute
501(c)(3) of the Internal Revenue Code special circumstances that would make
(26 U.S.C. 501(c)(3)) with not more than an award unjust.
500 employees; (g) An applicant that participates in
(4) A cooperative association as de- a proceeding primarily on behalf of one
fined in section 15(a) of the Agricul- or more other persons or entities that
tural Marketing Act (12 U.S.C. 1141j(a)) would be ineligible is not itself eligible
with a net worth of not more than $5 for an award.
(h) An applicant who appears pro se
million and not more than 500 employ-
in a proceeding is ineligible for award
ees.
of attorney fees. However, eligibility
(5) Any other partnership, corpora-
for other expenses is not affected by
tion, association, or public or private
pro se representation.
organization with a net worth of not
more than $7 million and not more [48 FR 1070, Jan. 10, 1983, as amended at 62
than 500 employees. FR 19234, Apr. 21, 1997]
(6) For the purposes of § 6.9(b), eligi-
ble applicants include small entities as § 6.9 Standards for awards.
defined in 5 U.S.C. 601. (a) An eligible applicant may receive
(c) For the purpose of eligibility, the an award for fees and expenses incurred
net worth and number of employees of by that party in connection with a de-
an applicant shall be determined as of cision in favor of the applicant in a
the date the proceeding was des- proceeding covered by this Part, unless
ignated. the position of the Department over
(d) An applicant who owns an unin- which the applicant has prevailed was
corporated business will be considered substantially justified or special cir-
an ‘‘individual’’ rather than a ‘‘sole cumstances make the award sought un-
owner of an unincorporated business’’ just. The burden of proof that an award
if the issues on which the applicant should not be made to an eligible appli-
prevails are related primarily to per- cant is on the Department where it has
sonal interests rather than to business initiated the proceeding. No presump-
interests. tion arises that the Department’s posi-
(e) The number of employees of an tion was not substantially justified
applicant includes all persons who reg- simply because the Department did not
ularly perform services for remunera- prevail. Whether or not the position of
tion for the applicant, under the appli- the Department was substantially jus-
cant’s direction and control. Part-time tified shall be determined on the basis
employees shall be included on a proof the administrative record, as a

portional basis. whole, in the adversary adjudication
57
for which fees and other expenses are compensate an expert witness may ex-
sought. The ‘‘position of the Depart- ceed the highest market rate at which
ment’’ means, in addition to the posi- the Department pays expert witnesses,
tion taken by the agency in the adver- or $24.09 per hour, whichever is less.
sary adjudication, the action or failure (c) In determining the reasonableness
to act by the Department upon which of the fee sought for an attorney, agent
the adversary adjudication may be or expert witness, the administrative
based. law judge shall consider the following:
(b) In the context of a Departmental (1) If the attorney, agent or witness
proceeding to enforce a party’s compli- is in private practice, his or her cus-
ance with a statutory or regulatory re- tomary fee for similar services, or, if
quirement, if the demand by the De- an employee of the applicant, the fully
partment is substantially in excess of allocated cost of the services;
the amount awarded to the government (2) The prevailing rate for similar
pursuant to the decision of the adju- services in the community in which the
dicative officer and is unreasonable attorney, agent or witness ordinarily
when compared with such decision, performs services;
under the facts and circumstances of (3) The time actually spent in the
the case, the adjudicative officer shall representation of the applicant;
award to an eligible applicant party (4) The time reasonably spent in light
the fees and expenses related to defend- of the difficulty or complexity of the
ing against the excessive demand, un- issues in the proceeding; and
less the applicant party has committed (5) Such other factors as may bear on
a willful violation of law or otherwise the value of the services provided.
acted in bad faith, or special cir- (d) The reasonable cost of any study,
cumstances make an award unjust. analysis, engineering report, test,
Fees and expenses awarded under this project or similar matter prepared on
paragraph shall be paid only as a con- behalf of a party may be awarded, to
sequence of appropriations provided in the extent that the charge for the serv-
advance. As used in this section, ‘‘de- ice does not exceed the prevailing rate
mand’’ means the express demand of for similar services, and the study or
the Department which led to the adver- other matter was necessary for prepa-
sary adjudication, but does not include ration of the applicant’s case.
a recitation by the Department of the
(e) Fees may be awarded only for
maximum statutory penalty
work performed after designation of a
(i) In the administrative complaint,
proceeding.
or
(ii) Elsewhere when accompanied by [48 FR 1070, Jan. 10, 1983, as amended at 62
an express demand for a lesser amount. FR 19234, Apr. 21, 1997]
(c) The decision of the Department
on the application for fees and other § 6.13 Delegations of authority.
expenses shall be the final administra- The Secretary of Transportation del-
tive decision under this section. egates to the head of each operating
(d) An award will be reduced or de- administration of this Department the
nied if the applicant has unduly or un- authority to take final action, other
reasonably protracted the proceeding. than rulemaking, on matters per-
[62 FR 19234, Apr. 21, 1997]
taining to the Act in actions that re-
quire section 554 proceedings. The head
§ 6.11 Allowable fees and expenses. of each operating administration may
redelegate this authority.
(a) Awards will be based on rates cus-
tomarily charged by persons engaged
in the business of acting as attorneys, Subpart B—Information Required
agents or expert witnesses. from Applicants
(b) No award for the fee of an attor-
ney or agent under these rules may ex- § 6.17 Contents of application.
ceed $125.00 per hour. This amount (a) An application for an award of
shall include all other expenses in- fees and expenses under the Act shall
curred by the attorney or agent in con- identify the applicant and the pro-
nection with the case. No award to ceeding for which an award is sought.
58
The application shall show that the ap- type and purpose of its organization or
plicant has prevailed and identify the business.
position of an agency or agencies in the
proceeding that the applicant alleges § 6.19 Net worth exhibit.
was not substantially justified. Unless (a) Each applicant except a qualified
the applicant is an individual, the ap- tax-exempt organization or cooperative
plication shall also state that it did association must provide with its ap-
not have more than 500 employees at plication a detailed exhibit showing
the time the proceeding was initiated, the net worth of the applicant and any
giving the number of employees of the affiliates (as defined in this part) when
applicant and describing briefly the the proceeding was designated. If any
type and purpose of its organization or individual, corporation, or other entity
business. directly or indirectly controls or owns
(b) The application shall also include a majority of the voting shares or
a statement that the applicant’s net other interest of the applicant, or if
worth does not exceed $1 million (if an the applicant directly or indirectly
individual) or $5 million (for all other owns or controls a majority of the vot-
applicants, including their affiliates). ing shares or other interest of any cor-
However, an applicant may omit this poration or other entity, the exhibit
statement if: must include a showing of the net
(1) It attaches a copy of a ruling by worth of all such affiliates or of the ap-
the Internal Revenue Service that it plicant including the affiliates. The ex-
qualifies as an organization described hibit may be in any form convenient to
in section 501(c)(3) of the Internal Rev- the applicant that provides full disclo-
enue Code (26 U.S.C. 501(c)(3)) or, in the sure of the applicant’s and its affili-
case of a tax-exempt organization not ates’ assets and liabilities and is suffi-
required to obtain a ruling from the In- cient to determine whether the appli-
ternal Revenue Service on its exempt cant qualifies under the standards in
status, a statement that describes the this subpart. The administrative law
basis for the applicant’s belief that it judge may require an applicant to file
qualifies under such section; or additional information to determine
(2) It states that it is a cooperative its eligibility for an award.
association as defined in section 15(a) (b) The net worth exhibit shall de-
of the Agricultural Marketing Act (12 scribe any transfers of assets from, or
U.S.C. 114j(a)). obligations incurred by, the applicant
(c) The application shall state the or any affiliate, occurring in the one-
amount of fees and expenses for which year period prior to the date on which
an award is sought. the proceeding was initiated, that re-
(d) The application may also include duced the net worth of the applicant
any other matters that the applicant and its affiliates below the applicable
wishes this agency to consider in deter- net worth ceiling. If there were no such
mining whether and in what amount an transactions, the applicant shall so
award should be made. state.
(e) The application shall be signed by (c) The net worth exhibit shall be in-
the applicant or an authorized officer cluded in the public record of the pro-
or attorney of the applicant. It shall ceeding.
also contain or be accompanied by a
written verification under oath or § 6.21 Documentation of fees and ex-
under penalty of perjury that the infor- penses.
mation provided in the application is (a) The application shall be accom-
true and correct. panied by full documentation of the
(f) If the applicant is a partnership, fees and expenses, including the cost of
corporation, association, or organiza- any study, analysis, engineering re-
tion, or a sole owner of an unincor- port, test, project or similar matter,
porated business, the application shall for which an award is sought.
state that it did not have more than 500 (b) The documentation shall include
employees at the time the proceeding an affidavit from any attorney, agent,
was initiated, giving the number of its or expert witness representing or ap-
employees and describing briefly the pearing in behalf of the party, stating
59
the actual time expended and the rate (b) If agency counsel and applicant
at which fees and other expenses were believe that they can reach a settle-
computed and describing the specific ment concerning the award, the agency
services performed. counsel may file a statement of intent
(1) The affidavit shall state the serv- to negotiate. The filing of such a state-
ices performed. In order to establish ment shall extend the time for filing an
the hourly rate, the affidavit shall answer an additional 30 days.
state the hourly rate which is billed (c) The answer shall explain in detail
and paid by the majority of clients dur- any objections to the award requested
ing the relevant time periods. and identify the facts relied on in sup-
(2) If no hourly rate is paid by the port of the Department’s position. If
majority of clients because, for in-
the answer is based on any alleged
stance, the attorney or agent rep-
facts not already in the record of the
resents most clients on a contingency
proceeding, the Department shall in-
basis, the attorney or agent shall pro-
clude with the answer either sup-
vide information about two attorneys
or agents with similar experience, who porting affidavits or a request for fur-
perform similar work, stating their ther proceedings under § 6.3.
hourly rate. [48 FR 1070, Jan. 10, 1983, as amended at 62
(c) The documentation shall also in- FR 19234, Apr. 21, 1997]
clude a description of any expenses for
which reimbursement is sought and a § 6.27 Comments by other parties.
statement of the amounts paid and Any party to a proceeding, other
payable by the applicant or by any than the applicant and the Department
other person or entity for the services may file comments on an application
provided. within 30 days after it is served or on
(d) The administrative law judge may
an answer within 15 days after it is
require the applicant to provide vouch-
served. A commenting party may not
ers, receipts, or other substantiation
participate further in proceedings on
for any expenses claimed.
(e) The administrative law judge the application.
may, within his or her discretion, § 6.29 Settlement.
make a determination as to whether a
study, conducted by the applicant, was The applicant and agency counsel
necessary to the preparation of the ap- may agree on a proposed settlement of
plicant’s case. the award before final action on the ap-
plication, either in connection with a
Subpart C—Procedures for settlement of the underlying pro-
Considering Applications ceeding, or after the underlying pro-
ceeding has been concluded, in accord-
§ 6.23 Filing and service of documents. ance with the agency’s standard settle-
Any application for an award or ment procedure. If a prevailing party
other pleading or document related to and the agency counsel agree on a pro-
an application shall be filed and served posed settlement of an award before an
on all parties to the proceeding in the application has been filed the applica-
same manner as other pleadings in the tion shall be filed with the proposed
proceeding. settlement.
§ 6.25 Answer to application. § 6.31 Further proceedings.

(a) Within 30 calendar days after (a) Ordinarily, the determination of
service of an application, the agency an award will be made on the basis of
counsel may file an answer to the ap- the written record. However, on re-
plication. Unless the agency counsel quest of either the applicant or agency
requests an extension of time for filing counsel, or on his or her own initiative,
or files a statement of intent to nego- the administrative law judge may
tiate under paragraph (b) of this sec- order further proceedings, such as an
tion, failure to file an answer within informal conference, oral argument,
the 30-day period may be treated as a additional written submissions or an

consent to the award request. evidentiary hearing.
60
Such further proceedings shall be held States courts. The copy of the decision
only when necessary for full and fair and the statement should be submitted
resolution of the issues arising from to the head of the affected operating
the application, and shall be conducted administration or the Secretary of
as promptly as possible. Transportation, where the Department
(b) A request that the administrative of Transportation, Office of the Sec-
law judge order further proceedings retary, has initiated the proceedings.
under this section shall specifically
identify the information sought or the PART 7—PUBLIC AVAILABILITY OF
disputed issues and shall explain why INFORMATION
the additional proceedings are nec-
essary to resolve the issues. Subpart A—General Provisions
§ 6.33 Decision. Sec.
The administrative law judge shall 7.1 General.
issue an initial decision on the applica- 7.2 Definitions.
tion as soon as possible after comple-
Subpart B—Information Required To Be
tion of proceedings on the application.
Made Public by DOT
The decision shall also include, if at
issue, findings on whether the Depart- 7.11 What records are published in the Fed-
ment’s position was substantially jus- eral Register, and how are they accessed?
tified, whether the applicant unduly 7.12 What records are available in reading
protracted the proceedings, or whether rooms, and how are they accessed?
special circumstances make an award 7.13 How are copies of publicly available
records obtained?
unjust. If the applicant has sought an 7.14 Redaction of Information That is Ex-
award against more than one agency, empt from Disclosure.
the decision shall allocate responsi- 7.15 Protection of Records.
bility for payment or any award made
among the agencies, and shall explain Subpart C—Availability of Reasonably
the reasons for the allocation made. Described Records
§ 6.35 Agency review. UNDER THE FREEDOM OF INFORMATION ACT
Where Department review of the un- 7.21 What does this subpart cover?
derlying decision is permitted, either 7.22 Who administers this subpart?
7.23 What limitations apply to disclosure?
the applicant or agency counsel, may 7.24 How do I submit a FOIA request?
seek review of the initial decision on 7.25 How does DOT handle first-party re-
the fee application, or the Department quests?
may decide to review the decision on 7.26 To what extent and in what format are
its own initiative. If neither the appli- records searched and made available?
cant nor the agency counsel seeks re- 7.27 What are the designated DOT FOIA Re-
view within 30 days after the decision quester Service Centers?
7.28 How does DOT handle requests that
is issued, it shall become final.
concern more than one Government
agency?
§ 6.37 Judicial review.
7.29 When and how does DOT consult with
Judicial review of final agency deci- submitters of commercial information?
sions on awards may be sought as pro-
vided in 5 U.S.C. 504(c)(2). Subpart D—Time Limits
§ 6.39 Payment of award. 7.31 What time limits apply to DOT with re-
spect to initial determinations?
An applicant seeking payment of an 7.32 What time limits apply to a requester
award from the Department of Trans- when appealing DOT’s initial or final de-
portation or any of its operating ad- termination?
ministrations under this part shall sub- 7.33 What time limits apply to DOT with re-
mit a copy of the Department of Trans- spect to administrative appeals (final de-
terminations)?
portation’s or any of its operating ad-
7.34 When and how are time limits applica-
ministration’s final decisions granting ble to DOT extended?
the award, accompanied by a state-
7.35 When and how is the twenty day time

ment that the applicant will not seek limit for rendering an initial determina-
review of the decision in the United tion tolled?
61
Subpart E—Fees Web pages instead of submitting a

FOIA request, if the Web pages contain
7.41 When and how are processing fees im-
posed for records that are made available
records that meet their needs.
under subpart B or processed under sub- (d) Subpart D of this part contains
part C of this part? the DOT regulations concerning time
7.42 What is DOT’s fee schedule for records limits applicable to processing requests
requested under subpart C of this part? for records under subpart C.
7.43 When are fees waived or reduced for (e) Subpart E of this part contains
records requested under subpart C of this the DOT regulations concerning proc-
part?
7.44 How can I pay a processing fee for
essing fees applicable to records made
records requested under subpart B or available under subpart B or requested
subpart C of this part? under subpart C.
7.45 When are pre-payments required for
records requested under subpart C of this § 7.2 Definitions.
part, and how are they handled? Unless the context requires other-
7.46 How are late payments handled?
wise, the following definitions apply in
AUTHORITY: 5 U.S.C. 552; 31 U.S.C. 9701; 49 this part:
U.S.C. 322; E.O. 12600; E.O. 13392. Act and FOIA mean the Freedom of
SOURCE: 79 FR 16209, Mar. 25, 2014, unless Information Act, 5 U.S.C. 552, as
otherwise noted. amended.
Administrator means the head of each
Subpart A—General Provisions Operating Administration.
Components—see the definition of De-
§ 7.1 General. partment in this section.
(a) This part implements the Free- Concurrence means that the approval
dom of Information Act, 5 U.S.C. 552, as of the individual being consulted is re-
amended, and prescribes rules gov- quired in order for the subject action
erning the public availability of De- to be taken.
partment of Transportation (DOT) Confidential commercial information
records. means trade secrets and confidential,
(b) Subpart B of this part contains privileged, and/or proprietary business
the DOT regulations concerning the or financial information submitted to
public availability of: DOT by any person.
(1) Records and indices that DOT is Consultation has its ordinary mean-
required to publish in the FEDERAL ing; the approval of the individual
REGISTER pursuant to 5 U.S.C. 552(a)(1) being consulted is not required in order
(described in § 7.11(a)); and for the subject action to be taken.
(2) Records and indices that DOT is Department or DOT means the De-
required to make available to the pub- partment of Transportation, including
lic in a reading room without need for the Office of the Secretary, the Office
a specific request, pursuant to 5 U.S.C. of Inspector General, and all DOT Oper-
552(a)(2) (described in § 7.12(a)). ating Administrations, any of which
(c) Subpart C of this Part contains may be referred to as a DOT compo-
the DOT regulations concerning nent.
records that may be requested from First-party request means a request by
DOT under the FOIA, namely, records an individual for records pertaining to
that DOT is not required to publish in that individual.
the FEDERAL REGISTER or make pub- Hourly rate means the actual hourly
licly available in a reading room under base pay for a civilian employee.
5 U.S.C. 552(a)(2)(A), (B), (C), and (E) Operating Administration means one of
and frequently requested records even the following components of the De-
if DOT has made them publicly avail- partment:
able as required under 5 U.S.C. (1) Federal Aviation Administration;
552(a)(2)(D). Because DOT and its com- (2) Federal Highway Administration;
ponents make many of these records (3) Federal Motor Carrier Safety Ad-
available on their Web pages (http:// ministration;
www.dot.gov or http://www.dot.gov/foia), (4) Federal Railroad Administration;
requesters may find it preferable to ob- (5) Federal Transit Administration;

tain such records directly from the (6) Maritime Administration;
62
(7) National Highway Traffic Safety fected by the material is considered to

Administration; be published in the FEDERAL REGISTER
(8) Pipeline and Hazardous Materials when the material is incorporated by
Safety Administration; and reference with the approval of the Di-
(9) Saint Lawrence Seaway Develop- rector of the Federal Register.
ment Corporation. (1) Descriptions of DOT’s organiza-
Reading room records are those tion and the established places at
records required to be made available which, the officers from whom, and the
to the public without a specific request methods by which, the public may se-
under 5 U.S.C. 552(a)(2), as described in cure information and make submittals
§ 7.12. or obtain decisions;
Record includes any writing, drawing, (2) Statements of the general course
map, recording, diskette, DVD, CD– and methods by which DOT’s functions
ROM, tape, film, photograph, or other are channeled and determined, includ-
documentary material, regardless of ing the nature and requirements of all
medium, by which information is pre- formal and informal procedures avail-
served. The term also includes any able;
such documentary material stored (3) Rules of procedure, descriptions of
electronically by computer. forms available or the places at which
Redact means delete or mark over. forms may be obtained, and instruc-
Representative of the news media tions as to the scope and contents of
means any person or entity that gath- all papers, reports, or examinations;
ers information of potential interest to (4) Substantive rules of general appli-
a segment of the public, uses its edi- cability adopted as authorized by law
torial skills to turn the raw materials and statements of general policy or in-
into a distinct work, and distributes terpretations of general applicability
that work to an audience. ‘‘News’’ formulated and adopted by DOT; and
means information that is about cur- (5) Each amendment, revision, or re-
rent events or that would be of current peal of any material listed in para-
interest to the public. graphs (a)(1) through (4) of this section.
Responsible DOT official means the
(b) Federal Register locations. DOT
head of the DOT Operating Administra-
makes its FEDERAL REGISTER publica-
tion concerned, or the General Counsel
tions and indices publicly available at
or the Inspector General, as the case
the physical locations identified in
may be, or the designee of any of them
§ 7.12(b). The publications and indices
authorized to take an action under this
can be accessed online at http://
Part.
www.federalregister.gov.
Secretary means the Secretary of
Transportation or any individual to § 7.12 What records are available in
whom the Secretary has delegated au- reading rooms, and how are they
thority in the matter concerned. accessed?
Toll means temporarily stop the run- (a) General. Pursuant to 5 U.S.C.
ning of a time limit. 552(a)(2), unless the following records
[79 FR 16209, Mar. 25, 2014, as amended at 82 are promptly published and offered for
FR 21139, May 5, 2017] sale or published in the FEDERAL REG-
ISTER, DOT and its components make
Subpart B—Information Required the following records, and an index to
To Be Made Public by DOT the records, available in a reading
room, including an electronic reading
§ 7.11 What records are published in room if the records were created by
the Federal Register, and how are DOT on or after November 1, 1996:
they accessed? (1) Final opinions, including concur-
(a) General. Pursuant to 5 U.S.C. ring and dissenting opinions, as well as
552(a)(1), DOT publishes the following orders, made in the adjudication of
records in the FEDERAL REGISTER and cases;
makes an index of the records publicly (2) Statements of policy and interpre-
available. For purposes of this para- tations that have been adopted by DOT
graph, material that is reasonably and are not published in the FEDERAL
available to the class of persons af- REGISTER;
63
(3) Administrative staff manuals and (2) Per copy prepared by any other
instructions to staff that affect a mem- method of duplication—actual direct
ber of the public; and cost of production.
(4) Copies of all records, regardless of (3) Copies are certified upon request
form or format, that have been re- by contacting the applicable FOIA Re-
leased to any person under subpart C of quester Service Center listed in § 7.27
this part and that: and paying the fee prescribed in
(i) Because of the nature of their sub- § 7.41(e).
ject matter, DOT determines have be-
§ 7.14 Redaction of information that is
come or are likely to become the sub- exempt from disclosure.
ject of subsequent requests for substan-
tially the same records; or Whenever DOT determines it to be
(ii) Have been requested three or necessary to prevent the disclosure of
more times. information required or authorized to
be withheld by FOIA or another Fed-
(5) A general index of the records list-
eral statute (such as, to prevent a
ed in paragraph (a)(4) of this section.
clearly unwarranted invasion of per-
(b) Reading room locations. DOT sonal privacy), DOT redacts such infor-
makes its reading room records and in- mation from any record covered by this
dices (in the form of lists or links) subpart that is published or made
available at https:// available. A full explanation of the jus-
www.transportation.gov/foia. To the ex- tification for the deletion accompanies
tent that DOT continues to make read- the record published or made available.
ing rooms available at a physical loca-
tion, those locations are listed on the § 7.15 Protection of records.
DOT FOIA Web site at https:// Records made available to the public
www.transportation.gov/foia. under this subpart may not be re-
[79 FR 16209, Mar. 25, 2014, as amended at 82 moved, altered, destroyed, or mutilated
FR 21139, May 5, 2017] (this excludes duplicate copies that are
provided to a member of the public to
§ 7.13 How are copies of publicly avail- take and keep). 18 U.S.C. 641 provides
able records obtained? for criminal penalties for embezzle-
(a) Copies of materials covered by this ment or theft of Government records.
subpart that are published and offered for 18 U.S.C. 2071 provides for criminal pen-
sale. Records that are ordinarily made alties for the willful and unlawful con-
available to the public as a part of an cealment, mutilation or destruction of,
information program of the Govern- or the attempt to conceal, mutilate, or
ment, such as news releases and pam- destroy, Government records.
phlets, may be obtained upon request
by contacting the appropriate DOT lo- Subpart C—Availability of Reason-
cation identified in § 7.12(b) or the ably Described Records
sources identified in § 7.41(g), and pay- Under the Freedom of Infor-
ing the applicable duplication fee or mation Act
purchase price. Whenever practicable,
DOT also makes the publications avail- § 7.21 What does this subpart cover?
able at the appropriate physical loca- (a) Except as otherwise provided in
tions identified in § 7.12(b). paragraph (b) of this section, this sub-
(b) Copies of materials covered by this part applies to reasonably described
subpart that are not published and of- records that are made available in re-
fered for sale. Such records may be or- sponse to written requests under FOIA.
dered, upon payment of the appropriate (b) This subpart does not apply to:
fee (if any fee applies), through the ap- (1) Records published in the FEDERAL
plicable FOIA Requester Service Cen- REGISTER.
ter or through the DOT Dockets Office (2) Records published and offered for
identified in § 7.12(b): sale.
(1) Per copy of each page (not larger (3) Records (other than frequently re-
than 8.5 × 14 inches) reproduced by pho- quested records) made available in a

tocopy or similar means—US $0.10. reading room.
64
(4) Records or information compiled determinations of appeals of initial de-

for law enforcement purposes and cov- nials to that official’s deputy or to not
ered by the disclosure exemption de- more than one other officer who re-
scribed in § 7.23(c)(7)(A) if— ports directly to the official and who is
(i) The investigation or proceeding located at the headquarters of that
involves a possible violation of crimi- DOT component.
nal law; and (5) Any such final determination by
(ii) There is reason to believe that— an Administrator or an Administra-
(A) The subject of the investigation tor’s designee (following an appeal of
or proceeding is not aware of its pend- an initial denial) is subject to concur-
ency; and rence by the General Counsel or the
(B) Disclosure of the existence of the General Counsel’s designee, if the final
records could reasonably be expected to determination is not to disclose a
interfere with enforcement pro- record or portion of a record under this
ceedings. part, or not to grant a request for a fee
(5) Informant records maintained by waiver or reduction.
any criminal law enforcement compo- (6) The Inspector General or the In-
nent of DOT under an informant’s spector General’s designee must con-
name or personal identifier, if result with the General Counsel or the
quested by a third party according to General Counsel’s designee before
the informant’s name or personal iden- issuing a final determination following
tifier, unless the informant’s status as an appeal of an initial denial, if the
an informant has been officially con- final determination is not to disclose a
firmed. record or portion of a record under this
part, or not to grant a request for a fee
§ 7.22 Who administers this subpart? waiver or reduction.
(a) A Chief FOIA Officer is appointed
by the Secretary to oversee DOT’s § 7.23 What limitations apply to disclo-
compliance with the Act pursuant to 5 sure?
U.S.C. 552(k). The DOT Chief FOIA Offi- (a) Policy. It is DOT policy to make
cer is designated at 49 CFR 1.27a as the its records available to the public to
Career Deputy General Counsel. the greatest extent possible, in keeping
(b) Each DOT FOIA Requester Serv- with the spirit of FOIA. This includes
ice Center listed in § 7.27 is the initial releasing reasonably segregable and
point of contact for providing informa- meaningful nonexempt information in
tion about its processing of requests. a document from which exempt infor-
(c) One or more Public Liaisons are mation is withheld.
designated by the Chief FOIA Officer (b) Statutory disclosure requirement. As
for each DOT FOIA Requester Service provided in 5 U.S.C. 552(a)(3)(A), DOT
Center listed in § 7.27. Public Liaisons makes reasonably described records
assist requesters in reducing delays available upon request from a member
and resolving disputes, as described in of the public, when the request is sub-
5 U.S.C. 552(k)(6). mitted in accordance with this subpart,
(d) Authority to administer this sub- except to the extent that the records
part and to issue determinations with contain information exempt from
respect to initial requests and appeals FOIA’s mandate of disclosure as pro-
of initial denials has been delegated as vided in 5 U.S.C. 552(b).
follows: (c) Statutory exemptions. Exempted
(1) To the General Counsel for the from FOIA’s statutory disclosure re-
records of the Office of the Secretary quirement are matters that are:
by 49 CFR 1.27. (1) Specifically authorized under cri-
(2) To the Inspector General for teria established by an Executive Order
records of the Office of Inspector Gen- to be kept secret in the interest of na-
eral by 49 CFR 1.74. tional defense or foreign policy, and
(3) To the Administrator of each DOT are in fact properly classified pursuant
Operating Administration for records to such Executive Order;
of that component by 49 CFR 1.81. (2) Related solely to the internal per-
(4) Each responsible DOT official may sonnel rules and practices of an agen-
redelegate the authority to issue final cy;
65
(3) Specifically exempted from disclo- close guidelines for law enforcement
sure by statute (other than the Privacy investigations or prosecutions, if such
Act, 5 U.S.C. 552a, or Open Meetings disclosure could reasonably be ex-
Act, 5 U.S.C. 552b, as amended), in that pected to risk circumvention of the
the statute: law; or
(i) Requires that the matters be with- (vi) Could reasonably be expected to
held from the public in such a manner endanger the life or physical safety of
as to leave no discretion on the issue, any individual;
establishes particular criteria for with- (8) Contained in or related to exam-
holding, or refers to particular types of ination, operating, or condition reports
matters to be withheld; or prepared by, on behalf of, or for the use
(ii) Specifically allows withholding of an agency responsible for the regula-
from release under FOIA by citation to tion or supervision of financial institu-
5 U.S.C. 552; tions; or
(4) Trade secrets and commercial or
(9) Geological and geophysical infor-
financial information obtained from a
mation and data, including maps, con-
person and privileged or confidential;
cerning wells.
(5) Inter-agency or intra-agency
memorandums or letters that would (d) Application of exemptions. DOT
not be available by law to a party shall withhold information pursuant to
other than an agency in litigation with a statutory exemption only if:
the agency, provided that the delibera- (1) DOT reasonably foresees that dis-
tive process privilege shall not apply to closure would harm an interest pro-
records created 25 years or more before tected by an exemption under para-
the date on which the records were re- graph (c) of this section; or
quested; (2) Disclosure is prohibited by law or
(6) Personnel and medical files and otherwise exempted from disclosure
similar files the disclosure of which under paragraph (c)(3) of this section.
would constitute a clearly unwarranted (e) Redacted information. DOT indi-
invasion of personal privacy; cates the amount of information re-
(7) Records or information compiled dacted from records released under the
for law enforcement purposes, but only FOIA and the exemption(s) relied upon
to the extent that the production of in redacting the information, at the
such law enforcement records or infor- place in the record where the redaction
mation— is made, when technically feasible and
(i) Could reasonably be expected to when doing so does not harm an inter-
interfere with enforcement pro- est protected by the exemption con-
ceedings; cerned.
(ii) Would deprive a person of a right (f) Non-confidentiality of requests. DOT
to a fair or an impartial adjudication; releases the names of FOIA requesters
(iii) Could reasonably be expected to and descriptions of the records they
constitute an unwarranted invasion of have sought, as shown on DOT FOIA
personal privacy; logs, except to the extent that a statu-
(iv) Could reasonably be expected to tory exemption authorizes or requires
disclose the identity of a confidential withholding of the log information.
source, including a State, local, tribal,
or foreign agency or authority or any [79 FR 16209, Mar. 25, 2014, as amended at 82
private institution which furnished in- FR 21139, May 5, 2017; 82 FR 25740, June 5,
formation on a confidential basis, and, 2017]
in the case of a record or information
§ 7.24 How do I submit a FOIA re-
compiled by a criminal law enforce- quest?
ment authority in the course of a
criminal investigation or by an agency (a) Each person desiring access to or
conducting a lawful national security a copy of a record covered by this sub-
intelligence investigation, information part must make a written request (via
furnished by a confidential source; paper, facsimile or electronic mail) for
(v) Would disclose techniques and the record. The request should—
procedures for law enforcement inves- (1) Indicate that it is being made
tigations or prosecutions or would dis- under FOIA;
66
(2) Display the word ‘‘FOIA’’ promi- such that DOT is unable to respond as
nently on the envelope or on the sub- required by FOIA. The twenty Federal
ject line of the email or facsimile; working day limit for responding to re-
(3) Be addressed to the appropriate quests, described in § 7.31(a)(2), will not
FOIA Requester Service Center as set start to run until the request is deter-
forth in § 7.27; mined by DOT to be sufficiently under-
(4) State the format (e.g., paper, com- stood to enable DOT to respond as con-
pact disc) in which the information is templated under FOIA (or would have
sought, if the requester has a pref- been so determined with the exercise of
erence (see § 7.26(c)); and due diligence by an employee of DOT)
(5) Describe the record or records and is considered received (see para-
sought to the fullest extent possible. In graph (e)); and
this regard, the request should describe
(e) Provided the request is considered
the subject matter of the record and, if
to be a FOIA request (see paragraph
known, indicate the date when it was
(d)), the request is considered received
made, the place where it was made, and
when it is first received by the FOIA
the individual or office that made it. If
the description does not enable the of- office to which it should have been
fice handling the request to identify or originally sent, as shown in § 7.27, but
locate the record sought, that office in any event not later than ten Federal
will contact the requester for addi- working days after it is first received
tional information. So that the office by any DOT FOIA Requester Service
may contact the requester for addi- Center identified in § 7.27.
tional information, the request should (f) As provided in § 7.35, DOT’s time
provide the requester’s complete con- limit for responding to a FOIA request
tact information, including name, ad- as set forth in subpart D may be tolled
dress, telephone number, and email ad- one time to seek additional informa-
dress, if any. tion needed to clarify the request and
(b) With respect to fees, the request as often as necessary to clarify fee
must— issues with the requester.
(1) Specify the fee category (commer-
cial use, news media, educational insti- § 7.25 How does DOT handle first-
tution, noncommercial scientific insti- party requests?
tution, or other; see § 7.42(g)) in which (a) DOT processes FOIA requests
the requester claims the request falls from first-party requesters in accord-
and the basis of this claim (see subpart ance with this regulation. DOT also
E of this Part for fees and fee waiver processes such requests in accordance
requirements); with the Privacy Act (5 U.S.C. 552a) if
(2) Support any request for fee waiver the records reside in a Privacy Act sys-
by addressing, to the fullest extent pos-
tem of records (defined in 5 U.S.C.
sible, how the criteria set out in
552a(a)(5) as a system from which infor-
§ 7.43(c) for establishing that the re-
mation is retrieved by the individual’s
quest is in the public interest have
been met, if relevant; name or some other personal identi-
(3) State the maximum amount of fier). Whichever statute provides great-
fees that the requester is willing to pay er access is controlling.
and/or include a request for a fee waiv- (b) First party requesters must estab-
er or reduction (if a maximum amount lish their identity to DOT’s satisfac-
is not stated by the requester, DOT tion before DOT will process the re-
will assume the requester is willing to quest under the Privacy Act. DOT may
pay up to US $25); request that first party requesters au-
(c) If the requester seeks expedited thenticate their identity to assist with
processing at the time of the initial re- our evaluation of the application of
quest, the request must include a FOIA exemptions, such as FOIA Ex-
statement supporting expedited proc- emption 6, 5 U.S.C. 552(b)(6), to the re-
essing, as set forth in § 7.31(c); quested records. Acceptable methods of
(d) A request is not considered to be authenticating the requester’s identity
a FOIA request if the record or records include those outlined in DOT’s Pri-
sought are insufficiently described vacy Act regulations at 49 CFR 10.37.
67
§ 7.26 To what extent and in what for- never created or was disposed of), DOT
mat are records searched and made so notifies the requester.
available?
(a) Existing records. A request may § 7.27 What are the designated DOT
FOIA Requester Service Centers?
seek only records that are in existence
at the time of the request. In deter- (a) A request for a record under this
mining which records are responsive to subpart may be submitted via paper,
a request, DOT ordinarily will include facsimile, or electronic mail to the
only records in its possession as of the FOIA Requester Service Center des-
date it begins its search for them. If ignated for the DOT component where
any other date is used, DOT will inform the records are located, at the elec-
the requester of that date. DOT con- tronic mail addresses or facsimile num-
siders records created after the begin- bers identified at https://
ning of the search to be non-responsive www.transportation.gov/foia or the mail-
to a request. A request made under this ing addresses indicated below (unless a
subpart may not require that new more up-to-date mailing address has
records be created in response to the been designated at https://
request by, for example, combining or www.transportation.gov/foia):
compiling selected items from manual (1) FOIA Requester Service Centers
files, preparing a new computer pro- at 1200 New Jersey Avenue SE., Wash-
gram, or calculating proportions, per- ington, DC 20590:
centages, frequency distributions, (i) FOIA Requester Service Center at
trends, or comparisons. DOT may, in Federal Highway Administration,
its discretion, create a new record as Room E64–302 (unless a more specific
an alternative to disclosing existing address has been designated by FHWA
records, if DOT determines that cre- at http://www.fhwa.dot.gov/foia);
ating a new record will be less burden- (ii) FOIA Requester Service Center at
some than disclosing large volumes of Federal Motor Carrier Safety Adminis-
unassembled material and if the re- tration, Room W66–458;
quester consents to accept the newly- (iii) FOIA Requester Service Center
created record in lieu of the existing at Federal Railroad Administration,
records. Room W33–437;
(b) Electronic records. DOT makes a (iv) FOIA Requester Service Center
reasonable effort to search electronic at Federal Transit Administration,
records without significantly inter- Room E42–315;
fering with the operation of the af- (v) FOIA Requester Service Center at
fected information system. Maritime Administration, Room W24–
(c) Format of production. DOT pro- 233;
vides records in the form or format (vi) FOIA Requester Service Center
sought by the requester, if the records at National Highway Traffic Safety Ad-
are readily reproducible in that form or ministration, Room W41–311;
format. (vii) FOIA Requester Service Center
(d) Photocopying of records. Original at Office of the Secretary of Transpor-
records ordinarily are copied except tation, Room W94–122;
where, in DOT’s judgment, copying (viii) FOIA Requester Service Center
would endanger the quality of the at Office of Inspector General, Room
original or raise the reasonable possi- W70–329;
bility of irreparable harm to the (ix) FOIA Requester Service Center
record. Original records are not re- at Pipeline and Hazardous Materials
leased from DOT custody. DOT may Safety Administration, Room E23–306;
make records requested under this sub- and
part available for inspection and copy- (2) FOIA Requester Service Center at
ing during regular business hours at Federal Aviation Administration, 800
the place where the records are lo- Independence Avenue SW., Room 306,
cated. Washington, DC 20591 (unless a more
(e) If no responsive record is located. If specific address has been designated by
DOT cannot locate a requested record FAA at http://www.faa.dot.gov/foia).
in agency files after a reasonable (3) FOIA Requester Service Center at

search (e.g., because the record was Associate Administrator’s Office, Saint
68
Lawrence Seaway Development Cor- that the Federal agency to which DOT
poration, 180 Andrews Street, P.O. Box referred the request will respond to the
520, Massena, NY 13662–0520. request, unless DOT is precluded from
(b) If the person making the request attributing the record in question to
does not know where in DOT the that agency.
records are located, the person may (d) DOT components will handle all
submit the request to the FOIA Re- consultations and referrals they re-
quester Service Center at Office of the ceive from other agencies or DOT com-
Secretary of Transportation, 1200 New ponents according to the date the FOIA
Jersey Avenue SE., Room W94–122, request initially was received by the
Washington, DC 20590 or by facsimile: first agency or DOT component, not
202–366–8536. Requesters also may con- any later date.
tact the FOIA Requester Service Cen-
ter at the Office of the Secretary of § 7.29 When and how does DOT consult
Transportation at 202–366–4542 with with submitters of commercial in-
questions about how to submit a FOIA formation?
request or to confirm the mailing ad-
(a) If DOT receives a request for a
dresses indicated in this part.
record that includes information des-
(c) Requests for records under this
part, and FOIA inquiries generally, ignated by the submitter of the infor-
may be made by accessing the DOT mation as confidential commercial in-
Home Page on the Internet (https:// formation, or that DOT has some other
www.transportation.gov) and clicking on reason to believe may contain informa-
the Freedom of Information Act link tion of that type (see § 7.23(c)(4)), DOT
(https://www.transportation.gov/foia). notifies the submitter expeditiously
and asks the submitter to submit any
[79 FR 16209, Mar. 25, 2014, as amended at 82 written objections to release (unless
FR 21139, May 5, 2017] paragraphs (c) and (d) of this section
§ 7.28 How does DOT handle requests apply). At the same time, DOT notifies
that concern more than one Gov- the requester that notice and an oppor-
ernment agency? tunity to comment are being provided
(a) If the release of a DOT-created to the submitter. To the extent per-
record covered by this subpart would mitted by law, DOT affords the sub-
be of concern to DOT and one or more mitter a reasonable period of time to
other Federal agencies, the determina- provide a detailed statement of any
tion as to release is made by DOT, but such objections. The submitter’s state-
only after consultation with the other ment must specify all grounds for with-
concerned agency. holding any of the information. The
(b) If the release of a DOT-created burden is on the submitter to identify
record covered by this subpart would with specificity all information for
be of concern to DOT and a State, which exempt treatment is sought and
local, or tribal Government, a territory to persuade the agency that the infor-
or possession of the United States, or a mation should not be disclosed.
foreign Government, the determination (b) The responsible DOT component,
as to release is made by DOT, but only to the extent permitted by law, con-
after consultation with the other considers carefully a submitter’s objec-
cerned Governmental jurisdiction. tions and specific grounds for non-
(c) DOT refers a request for a nondisclosure prior to determining wheth-
DOT-created record covered by this er to disclose commercial information.
subpart (or the relevant portion there- Whenever DOT decides to disclose such
of) for decision by the Federal agency information over the objection of a
that is best able to determine the submitter, the office responsible for
record’s exemption status (usually, the decision provides the submitter
this is the agency that originated the with a written notice of intent to dis-
record), but only if that agency is sub- close, which is sent to the submitter a
ject to FOIA. DOT makes such refer- reasonable number of days prior to the
rals expeditiously and notifies the re- specified date upon which disclosure is
quester in writing that a referral has intended. The written notice to the
been made. DOT informs the requester submitter includes:
69
(1) A statement of the reasons for longer, in accordance with § 7.34. In ad-
which the submitter’s disclosure objec- dition, DOT may toll this time limit
tions were not accepted; one time to seek additional informa-
(2) A description of the commercial tion needed to clarify the request and
information to be disclosed; and as often as necessary to clarify fee
(3) A specific disclosure date. issues with the requester (see § 7.35).
(c) The notice requirements of this (3) DOT notifies the requester of
section do not apply if:
DOT’s initial determination. If DOT de-
(1) DOT determines that the informa-
cides to grant the request in full or in
tion should not be disclosed;
(2) The information lawfully has been part, DOT makes the record (or the
published or otherwise made available granted part) available as promptly as
to the public; or possible and provides the requester
(3) Disclosure of the information is with written notification of DOT’s de-
required by law (other than 5 U.S.C. termination, the reasons for the deter-
552). mination, and the right of the re-
(d) The procedures established in this quester to seek assistance from the
section do not apply in the case of: FOIA Public Liaison. If DOT denies the
(1) Information submitted to the Na- request in full or in part, because the
tional Highway Traffic Safety Admin- record (or the denied part) is subject to
istration and addressed in 49 CFR part an exemption, is not within DOT’s cus-
512. tody and control, or was not located
(2) Information contained in a docu- following a reasonable search, DOT no-
ment to be filed or in oral testimony tifies the requester of the denial in
that is sought to be withheld pursuant writing and includes in the notice the
to Rule 12 of the Rules of Practice in reason for the determination, the right
Aviation Economic Proceedings (14 of the requester to appeal the deter-
CFR 302.12).
mination, the name and title of each
(3) Information submitted to the Fed-
individual responsible for the initial
eral Motor Carrier Safety Administra-
tion and addressed in 49 CFR 389.9. determination to deny the request, and
(e) Whenever a requester brings suit the requester’s right to seek dispute
seeking to compel disclosure of con- resolution services from the FOIA Pub-
fidential commercial information, the lic Liaison or the Office of Government
responsible DOT component promptly Information Services. The denial letter
notifies the submitter. The submitter includes an estimate of the volume of
may be joined as a necessary party in records or information withheld, in
any suit brought against DOT or a DOT number of pages or other reasonable
component for nondisclosure. form of estimation. This estimate does
[79 FR 16209, Mar. 25, 2014, as amended at 82
not need to be provided if the volume is
FR 21139, May 5, 2017] otherwise indicated through deletions
on records disclosed in part, or if pro-
Subpart D—Time Limits viding an estimate would harm an in-
terest protected by an applicable ex-
§ 7.31 What time limits apply to DOT emption. DOT marks or annotates
with respect to initial determina- records disclosed in part to show both
tions? the amount and location of the infor-
(a) In general. (1) DOT ordinarily re- mation deleted whenever practicable
sponds to requests according to their (see § 7.23(d)).
order of receipt. (b) Multi-track processing of initial re-
(2) DOT makes an initial determina- quests. (1) A DOT component may use
tion whether to release a record re- two or more processing tracks by dis-
quested pursuant to subpart C of this tinguishing between simple and more
Part within twenty Federal working complex requests based on the amount
days after the request is received by of work and/or time needed to process
the appropriate FOIA Requester Serv- the request, or based on the number of
ice Center designated in § 7.27, except
pages involved.
that DOT may extend this time limit
by up to ten Federal working days, or
70
(2) A DOT component using multi- essing, the proper component decides
track processing may provide request- whether to grant it and notifies the re-
ers in its slower track(s) with an oppor- quester of the decision. If DOT grants a
tunity to limit the scope of their re- request for expedited treatment, the
quests in order to qualify for faster request is given priority and is proc-
processing within the specified limits essed as soon as practicable. If DOT de-
of the component’s faster track(s). In nies a request for expedited processing,
that event, the component contacts the any appeal of that denial is acted on
requester either by telephone, letter, expeditiously.
facsimile, or electronic mail, which- [79 FR 16209, Mar. 25, 2014, as amended at 82
ever is most efficient in each case. FR 21139, May 5, 2017]
(3) Upon receipt of a request that will
take longer than ten days to process, a § 7.32 What time limits apply to a re-
DOT component shall assign an indi- quester when appealing DOT’s ini-
vidualized tracking number to the re- tial or final determination?
quest and notify the requester of the (a) Denial of records request. When the
assigned number. Requesters may con- responsible DOT official determines
tact the appropriate DOT component that a record request will be denied, in
FOIA Requester Service Center to de- whole or in part, because the record is
termine the status of the request. subject to an exemption, is not in
(c) Expedited processing of initial re- DOT’s custody and control, or was not
quests. (1) Requests are processed out of located following a reasonable search,
order and given expedited treatment DOT provides the requester with the
whenever a compelling need is dem- written statement described in
onstrated and DOT determines that the § 7.31(a)(3).
compelling need involves: (b) Denial of fee waiver. When the re-
(i) Circumstances in which the lack sponsible DOT official denies, in whole
of expedited treatment could reason- or in part, a request for a waiver of fees
ably be expected to pose an imminent made pursuant to § 7.24(b) or § 7.43(c),
threat to the life or physical safety of DOT provides the requester with writ-
an individual; or ten notification of that determination,
(ii) A request made by a person pri- the reasons for the determination, the
marily engaged in disseminating infor- right of the requester to appeal the de-
mation, with a time urgency to inform termination within DOT, and the re-
the public of actual or alleged Federal quester’s right to seek assistance in
Government activity. resolution of disputes from the FOIA
(2) A request for expedited processing Public Liaison or Office of Government
may be made at the time of the initial Information Services.
request for records or at any later (c) Denial of expedited processing.
time. For a prompt determination, the When the responsible DOT official de-
request for expedited processing must nies a request for expedited processing
be received by the FOIA office for the made pursuant to § 7.31(c), DOT pro-
component that maintains the records vides the requester with written notice
requested, as identified in § 7.27. of that determination, the reasons for
(3) A requester who seeks expedited the determination, the right to appeal
processing must submit a statement, the determination within DOT, and the
certified to be true and correct to the requester’s right to seek dispute reso-
best of that individual’s knowledge and lution services from the FOIA Public
belief, explaining in detail the basis for Liaison or Office of Government Infor-
requesting expedited processing. A re- mation Services.
quester within the category in para- (d) Right to administrative appeal. Any
graph (c)(1)(ii) of this section must es- requester to whom a record has not
tablish a particular urgency to inform been made available within the time
the public about the Government activ- limits established by § 7.31 and any re-
ity involved in the request, beyond the quester who has been provided a writ-
public’s right to know about Govern- ten determination pursuant to para-
ment activity generally. graphs (a), (b), or (c) of this section
(4) Within ten calendar days of re- may appeal to the responsible DOT of-
ceipt of a request for expedited proc- ficial.
71
(1) Each appeal must be made in writ- in which the requester resides or has
ing to the appropriate DOT appeal offi- his or her principal place of business,
cial and postmarked or, in the case of the judicial district in which the re-
electronic or facsimile transmissions quested records are located, or the Dis-
transmitted, within ninety calendar trict of Columbia.
days from the date the initial deter- (e) Right to judicial review. Any re-
mination is signed and should include quester who has not received an initial
the DOT file or reference number as- determination on his or her request
signed to the request and all informa- within the time limits established by
tion and arguments relied upon by the § 7.31 can seek immediate judicial re-
person making the request. The con- view, which may be sought without the
tact information for all DOT compo- need to first submit an administrative
nent appeal officials is identified in the appeal. Any requester who has received
DOT FOIA Reference Guide available a written determination denying his or
at https://www.transportation.gov/foia. her administrative appeal or who has
The envelope in which a mailed appeal not received a written determination of
is sent or the subject line of an appeal his or her administrative appeal within
sent electronically or by facsimile the time limits established by § 7.33 can
should be prominently marked: ‘‘FOIA seek judicial review. A determination
Appeal.’’ The twenty Federal working that a record request is denied, that a
day limit described in § 7.33(a) will not request for a fee waiver or reduction is
begin to run until the appeal has been denied, and/or that a request for expe-
received by the appropriate office and dited processing is denied does not con-
identified as an appeal under FOIA, or stitute final agency action for the pur-
would have been so identified with the pose of judicial review unless it is
exercise of due diligence, by a DOT em- made by the responsible DOT official.
ployee. Judicial review may be sought in the
(2) Whenever the responsible DOT of- United States District Court for the ju-
ficial determines it is necessary, the dicial district in which the requester
official may require the requester to resides or has his or her principal place
furnish additional information, or of business, the judicial district in
proof of factual allegations, and may which the requested records are lo-
order other proceedings appropriate in cated, or the District of Columbia.
the circumstances. DOT’s time limit [79 FR 16209, Mar. 25, 2014, as amended at 82
for responding to an appeal may be ex- FR 21139, May 5, 2017]
tended as provided in § 7.34. The deci-
sion of the responsible DOT official as § 7.33 What time limits apply to DOT
to the availability of the record, the with respect to administrative ap-
appropriateness of a fee waiver or re- peals (final determinations)?
duction, or the appropriateness of expe- (a) In general. (1) DOT ordinarily
dited processing, constitutes final processes appeals according to their
agency action for the purpose of judi- order of receipt.
cial review. (2) DOT issues a determination with
(3) The decision of the responsible respect to any appeal made pursuant to
DOT official to deny a record request, § 7.32(d) within twenty Federal working
to deny a request for a fee waiver or re- days after receipt of such appeal, ex-
duction, or to deny a request for expe- cept that in unusual circumstances
dited processing is considered to be a DOT may extend this time limit by up
denial by the Secretary for the purpose to ten Federal working days in accord-
of 5 U.S.C. 552(a)(4)(B). ance with § 7.34(a) or for more than ten
(4) When the responsible DOT official Federal working days in accordance
denies an appeal, the requester is in- with § 7.34(b). DOT notifies the re-
formed in writing of the reasons for the quester making the appeal imme-
denial of the request and the names diately, in writing, if the agency takes
and titles or positions of each person an extension of time. DOT may inform
responsible for the determination, and the requester making the appeal, at
that judicial review of the determina- any time, of exceptional circumstances
tion is available in the United States delaying the processing of the appeal
District Court for the judicial district (see § 7.34(c)).
72
(b) Multi-track processing of appeals. (4) Within ten calendar days of re-
(1) A DOT component may use two or ceipt of a request for expedited proc-
more processing tracks by distin- essing, the proper component will de-
guishing between simple and more cide whether to grant it and will notify
complex appeals based on the amount the requester of the decision. If a re-
of work and/or time needed to process quest for expedited treatment is grant-
the appeal, or based on the amount of ed, the appeal will be given priority
information involved. and will be processed as soon as prac-
(2) A DOT component using multi- ticable. If a request for expedited proc-
track processing may provide persons essing of an appeal is denied, no further
making appeals in its slower track(s) administrative recourse is available.
with an opportunity to limit the scope
of their appeals in order to qualify for § 7.34 When and how are time limits
faster processing within the specified applicable to DOT extended?
limits of the component’s faster (a) In unusual circumstances as spec-
track(s). A component doing so will ified in this section, DOT may extend
contact the person making the appeal the time limits prescribed in §§ 7.31 and
either by telephone, letter, facsimile, 7.33 by written notice to the person
or electronic mail, whichever is most making the request or appeal, setting
efficient in each case. forth the reasons for the extension and
(c) Expedited processing of appeals. (1) the date on which a determination is
An appeal is processed out of order and expected to be issued. Such notice may
given expedited treatment whenever a not specify a date that would result in
compelling need is demonstrated and a cumulative extension of more than
DOT determines that the compelling ten Federal working days without pro-
need involves: viding the requester an opportunity to
(i) Circumstances in which the lack modify the request as noted in this sec-
of expedited treatment could reason- tion. As used in this paragraph, ‘‘un-
ably be expected to pose an imminent usual circumstances’’ means, but only
threat to the life or physical safety of to the extent reasonably necessary to
an individual; or the proper processing of the particular
(ii) A request made by a person pri- request:
marily engaged in disseminating infor- (1) The need to search for and collect
mation, with a time urgency to inform the requested records from field facili-
the public of actual or alleged Federal ties or other establishments that are
Government activity. separate from the office processing the
(2) A request for expedited processing request;
may be made at the time of the appeal (2) The need to search for, collect,
or at a later time. For a prompt deter- and appropriately examine a volumi-
mination, a request for expedited proc- nous amount of separate and distinct
essing must be received by the compo- records that are demanded in a single
nent that is processing the appeal for request; and/or
the records requested. (3) The need for consultation, which
(3) A requester who seeks expedited will be conducted with all practicable
processing must submit a statement, speed, with any other agency having a
certified to be true and correct to the substantial interest in the determina-
best of that individual’s knowledge and tion of the request or among two or
belief, explaining in detail the basis for more DOT components having substan-
requesting expedited processing. A re- tial interest therein.
quester within the category in para- (b) When the extension is for more
graph (c)(1)(ii) of this section must es- than ten Federal working days, the
tablish a particular time urgency to in- written notice provides the requester
form the public about the Government with an opportunity to either modify
activity involved in the request, be- the request (e.g., by narrowing the
yond the public’s right to know about record types or date ranges) so that it
Government activity generally. A per- may be processed within the extended
son granted expedited processing under time limit, or arrange an alternative
§ 7.31(c) need merely certify that the time period with the DOT component
same circumstances apply. for processing the request (e.g., by
73
prioritizing portions of the request). (1) When the requester has not suffi-
The written notice also will notify the ciently identified the fee category ap-
requester of the right to seek dispute plicable to the request;
resolution services from the Office of (2) When the requester has not stated
Government Information Services. a willingness to pay fees as high as an-
(c) The DOT component may inform ticipated by DOT; or
the requester, at any time, of excep- (3) When a fee waiver request is de-
tional circumstances that apply to the nied and the requester has not included
processing of the request or appeal an alternative statement of willingness
(e.g., if the component is reducing a to pay fees as high as anticipated by
backlog of requests or appeals in addi- DOT.
tion to processing current requests, or
is experiencing an unexpected deluge of Subpart E—Fees
requests or appeals), as provided in 5
U.S.C. 552(a)(6)(C). § 7.41 When and how are processing
fees imposed for records that are
(d) When a DOT component reason- made available under subpart B or
ably believes that multiple requests processed under subpart C of this
submitted by a requester, or by a group part?
of requesters acting in concert, con- (a) DOT imposes fees for services that
stitute a single request that would oth- DOT performs for the public under sub-
erwise involve unusual circumstances, parts B and C of this part. Fees apply
and the requests involve clearly related to all required and special services per-
matters, DOT may aggregate the re- formed by DOT employees, including
quests for the purposes of fees and employees of non-appropriated fund ac-
processing activities, which may result tivities, and contractors, if utilized.
in an extension of the processing time. (b) DOT may assess a fee for time
Multiple requests involving unrelated spent searching for records requested
matters are not aggregated. under subpart C even if the search fails
[79 FR 16209, Mar. 25, 2014, as amended at 82 to locate records or the records located
FR 21140, May 5, 2017] are determined to be exempt from dis-
closure. In addition, if records are re-
§ 7.35 When and how is the twenty day quested for commercial use, DOT may
time limit for rendering an initial assess a fee for time spent reviewing
determination tolled? any responsive records located to de-
The twenty Federal working day termine whether they are exempt from
time period in which to render an ini- disclosure.
tial determination will proceed with- (c) When a request is made under sub-
out interruption except as provided in part C by a first-party requester and
the following circumstances: DOT processes the request under both
FOIA and the Privacy Act, DOT deter-
(a) DOT may toll the initial twenty
mines the fees for records in DOT Pri-
Federal working day time period one
vacy Act systems of record in accord-
time for the purpose of seeking addi-
ance with the Privacy Act (as imple-
tional information needed to clarify
mented by DOT regulations at 49 CFR
the request. Examples of such in- part 10) rather than the FOIA.
stances include but are not limited to: (d) When DOT aggregates requests
(1) When clarification is needed with made under subpart C (see § 7.34(d)),
regard to the scope of a request; or DOT apportions fees as set forth in
(2) When the description of the § 7.43(b).
record(s) being sought does not enable (e) As a special service, DOT may cer-
the component handling the request to tify copies of records made available
identify or locate the record(s). under subpart B or released under sub-
(b) DOT may toll the initial twenty part C, upon request and payment of
Federal working day time period as the applicable fee: with the DOT seal
often as necessary to clarify fee issues (where authorized)—US $10; or true
with the requester. Examples of such copy, without seal—US $5. Certified
instances include but are not limited copies can be requested by contacting
to: the applicable FOIA Requester Service
74
Center (see § 7.27) or the DOT Dockets er’s hourly rate as set forth in para-
Office identified in § 7.12(b)(1). graph (a) of this section by the time
(f) DOT makes transcripts of hear- spent conducting the search.
ings or oral arguments available for in- (c) DOT’s standard fee for review of
spection only. If transcripts are pre- records is the reviewer’s rate set forth
pared by a nongovernmental con- in paragraph (a) of this section, multi-
tractor and the contract permits DOT plied by the time the reviewer spent
to handle the reproduction of further determining whether the located
copies, DOT assesses duplication fees records are responsive to the request
as set forth in § 7.42(d). If the contract and whether the responsive records or
for transcription services reserves the segregable portions are exempt from
sales privilege to the reporting service, disclosure, as explained in paragraphs
any duplicate copies must be purchased (h), (i), and (j) of this section.
directly from the reporting service. (d) DOT determines the standard fee
(g) In the interest of making docu- for duplication of records as follows:
ments of general interest publicly (1) Per copy of each page (not larger
available at as low a cost as possible, than 8.5 × 14 inches) reproduced by pho-
DOT arranges alternative sources tocopy or similar means (includes costs
whenever possible. In appropriate in- of personnel and equipment)—US $0.10.
stances, material that is published and (2) Per copy prepared by any other
offered for sale may be purchased from method of duplication—actual direct
the Superintendent of Documents, U.S. cost of production.
Government Printing Office, Wash- (e) If DOT utilizes a contractor to
ington, DC 20402–0001; U.S. Department perform any services described in this
of Commerce’s National Technical In- section, the standard fee is based on
formation Service (NTIS), Springfield, the equivalent hourly rate(s). DOT does
VA 22151; or National Audio-Visual not utilize contractors to discharge re-
Center, National Archives and Records sponsibilities that only DOT may dis-
Administration, Capital Heights, MD charge under the FOIA.
20743–3701. (f) In some cases, depending upon the
category of requester and the use for
§ 7.42 What is DOT’s fee schedule for which the records are requested, the
records requested under subpart C fees computed in accordance with the
of this part? standard fee schedule in paragraphs (a)
(a) DOT calculates the hourly rates through (e) of this section are either
for manual searching, computer oper- reduced or not charged, as prescribed
ator/programmer time, and time spent by other provisions of this subpart.
reviewing records, when performed by (g) For purposes of fees only, there
employees, based on the grades and are four categories of FOIA requests:
rates in the General Schedule Locality (1) Requests submitted by a commer-
Pay Table for the Locality of Wash- cial entity and/or for a commercial use;
ington-Baltimore-Northern Virginia, (2) Requests submitted by an edu-
DC-MD-VA-WV-PA, or equivalent cational or noncommercial scientific
grades, plus 16% to cover fringe bene- institution whose purpose is scholarly
fits, as follows: or scientific research (and not for a
(1) GS–1 through GS–8 (or equiva- commercial use);
lent)—Hourly rate of GS–5 step 7 plus (3) Requests submitted by a rep-
16%; resentative of the news media; and
(2) GS–9 through GS–12 (or equiva- (4) All other requests.
lent)—Hourly rate of GS–10 step 7 plus (h) When records are requested by a
16%; commercial requester and/or for a com-
(3) GS–13 through GS–14 (or equiva- mercial use, the fees assessed are rea-
lent)—Hourly rate of GS–13 step 7 plus sonable standard charges for document
16%; and search, duplication, and review.
(4) GS–15 and above (or equivalent)— (i) When records are requested by an
Hourly rate of GS–15 step 7 plus 16%. educational or noncommercial sci-
(b) DOT determines the standard fee entific institution whose purpose is
for a manual or electronic search to lo- scholarly or scientific research or by a

cate records by multiplying the search- representative of the news media (i.e.,
75
for a non-commercial use), fees are exemptions not previously considered,

limited to reasonable standard charges this is considered an initial review for
for document duplication. purposes of assessing a review charge.
(j) For any request not described in (b) When DOT aggregates requests as
paragraph (h) or (i) of this section, fees provided in § 7.34(d), DOT charges each
are limited to reasonable standard requester a ratable portion of the fees
charges for document search and dupli- charged for combined services rendered
cation. on behalf of all requesters.
(k) Fees under this subpart do not (c) DOT waives or reduces the fees de-
apply to any special study, special sta- scribed in § 7.42(i) and (j) when the re-
tistical compilation, table, or other quester makes a fee waiver or reduc-
record requested under 49 U.S.C. 329(c). tion request as provided in § 7.24(b) and
The fee for the performance of such a establishes that disclosure of the infor-
service is the actual cost of the work mation is in the public interest as pro-
involved in compiling the record. All vided in 5 U.S.C. 552 and this para-
such fees received by DOT in payment graph, and the DOT official having ini-
of the cost of such work are deposited tial denial authority determines that
in a separate account administered disclosure of the information is in the
under the direction of the Secretary, public interest and is not primarily in
and may be used for the ordinary ex- the commercial interest of the re-
penses incidental to providing the in- quester. The requester must establish
formation. all of the following factors to DOT’s
satisfaction to show that the request is
§ 7.43 When are fees waived or rein the public interest:
duced for records requested under (1) That the subject matter of the re-
subpart C of this part? quested records concerns the oper-
(a) DOT does not charge fees to any ations or activities of the Federal Gov-
requester making a request under sub- ernment;
part C of this part for the following (2) That the disclosure is likely to
services: contribute to an understanding of Fed-
(1) Services for which the total eral Government operations or activi-
amount of fees that could be charged ties;
for the particular request (or aggrega- (3) That disclosure of the requested
tion of requests) is less than US $20, information will contribute to the un-
after taking into account all services derstanding of the public at large, as
that must be provided free of charge or opposed to the understanding of the in-
at a reduced charge. dividual requester or a narrow segment
(2) The first two hours of search of interested persons (to establish this
time, unless the records are requested factor, the requester must show an in-
for commercial use. tent and ability to disseminate the re-
(3) Duplication of the first 100 pages quested information to a reasonably
(standard paper, not larger than 8.5 × 14 broad audience of persons interested in
inches) of records, unless the records the subject);
are requested for commercial use. (4) That the contribution to public
(4) Review time spent determining understanding of Federal Government
whether a record is exempt from dis- operations or activities will be signifi-
closure, unless the record is requested cant; and
for commercial use. DOT does not (5) That the requester does not have
charge for review time except with re- a commercial interest that would be
spect to an initial review to determine furthered by the requested disclosure
the applicability of a particular exemp- or that the magnitude of any identified
tion to a particular record or portion of commercial interest to the requester is
a record. DOT does not charge for re- not sufficiently large in comparison
view at the administrative appeal with the public interest in disclosure
level. However, when records or por- to render the disclosure one that is pri-
tions of records withheld under an ex- marily in the commercial interest of
emption that is subsequently deter- the requester.
mined not to apply are reviewed again (d) DOT furnishes documents without
to determine the applicability of other charge or at a reduced charge when the
76
official having initial denial authority § 7.44 How can I pay a processing fee
determines that the request concerns for records requested under sub-
records related to the death of an im- part B or subpart C of this part?
mediate family member who was, at Fees typically should be paid online,
the time of death, a DOT employee. using a credit card, debit card, or elec-
(e) DOT furnishes documents without tronic check. The DOT FOIA page
charge or at a reduced charge when the (http://www.dot.gov/foia) has direct links
official having initial denial authority to the electronic payment site. Any
determines that the request is by the fees paid with a paper check, draft, or
victim of a crime who seeks the record money order must be made payable to
of the trial at which the requester tes- the U.S. Treasury and delivered as di-
tified. rected by the applicable FOIA Re-
(f) Except as provided in paragraphs quester Service Center identified in
(f)(1) through (3) of this section, DOT § 7.27 (if the fees are for records made
does not assess search fees otherwise available under subpart C) or the DOT
chargeable under § 7.42(h) and (j) or du- Dockets Office identified in § 7.12(b)(1)
plication fees otherwise chargeable (if the fees are for records made avail-
under § 7.42(i) when DOT fails to com- able under subpart B).
ply with the time limits under § 7.31 or
§ 7.33. § 7.45 When are pre-payments required
for records requested under sub-
(1) If DOT has determined that un- part C of this part, and how are
usual circumstances apply (as defined they handled?
in § 7.34(a)), 5,000 pages or less are nec-
essary to respond to the request, and (a) When DOT estimates that the
DOT has provided a timely written no- search charges, review charges, dupli-
tice to the requester in accordance cation fees, or any combination of fees
with § 7.34(a), a failure to comply with that could be charged to the requester
the time limits under § 7.31 or § 7.33 is will likely exceed US $25, DOT notifies
excused for an additional 10 days. If the requester of the estimated amount
DOT does not comply with the ex- of the fees, unless the requester has
tended time limit, DOT does not assess previously indicated a willingness to
search fees otherwise chargeable under pay fees as high as those anticipated.
§ 7.42(h) and (j) or duplication fees oth- In cases where DOT notifies the re-
erwise chargeable under § 7.24(i); quester that actual or estimated fees
may amount to more than US $25, the
(2) If DOT has determined that un-
time limit for responding to the re-
usual circumstances apply (as defined
quest is tolled until the requester has
under § 7.34(a)) and more than 5,000
agreed to pay the anticipated total fee
pages are necessary to respond to the
(see § 7.35). The notice also informs the
request, DOT may charge search fees
requester how to consult with the ap-
under § 7.42(h) and (j) or duplication
propriate DOT officials with the object
fees under § 7.42(j) if DOT has provided
of reformulating the request to meet
timely written notice to the requester
his or her needs at a lower cost.
in accordance with § 7.34(a) and (b), and
(b) DOT may require payment of fees
DOT has discussed with the requester
prior to actual duplication or delivery
via written mail, electronic mail, or
of any releasable records to a re-
telephone (or made not less than three
quester. However, advance payment,
good faith attempts to do so) how the
i.e., before work is commenced or con-
requester could effectively limit the
tinued on a request, is not required un-
scope of the request.
less:
(3) If a court determines that excep- (1) Allowable charges that a re-
tional circumstances exist (as that quester may be required to pay are
term is defined in 5 U.S.C. 552(a)(6)(C)), likely to exceed US $250; or
failure to comply with time limits (2) The requester has failed to pay
under § 7.31 or § 7.33 shall be excused for within 30 days of the billing date fees
the length of time provided by the charged for a previous request to any
court order. part of the U.S. Government.
[79 FR 16209, Mar. 25, 2014, as amended at 82 (c) When paragraph (b)(1) of this sec-
FR 21140, May 5, 2017] tion applies, DOT notifies the requester
77
of the estimated cost. If the requester ing agencies and use of collection agen-
has a history of prompt payment of cies, to encourage payment of amounts
FOIA fees, the requester must furnish overdue.
satisfactory assurance of full payment
of the estimated charges. Otherwise, PART 8—CLASSIFIED INFORMA-
the requester may be required to make TION: CLASSIFICATION/DECLAS-
advance payment of any amount up to
the full estimated charges.
SIFICATION/ACCESS
(d) When paragraph (b)(2) of this sec-
Subpart A—General
tion applies, DOT requires the re-
quester to either demonstrate that the Sec.
fee has been paid or pay the full 8.1 Scope.
amount owed, including any applicable 8.3 Applicability.
interest, late handling charges, and 8.5 Definitions.
penalty charges as discussed in § 7.46. 8.7 Spheres of responsibility.
DOT also requires such a requester to Subpart B—Classification/Declassification
make an advance payment of the full of Information
amount of the estimated fee before
DOT begins processing a new request or 8.9 Information Security Review Com-
continues processing a pending request. mittee.
(e) In the event that a DOT compo- 8.11 Authority to classify information.
nent is required to refund a prepay- 8.13 Authority to downgrade or declassify.
8.15 Mandatory review for classification.
ment, the processing of the refund may
8.17 Classification challenges.
necessitate collection of the request- 8.19 [Reserved]
er’s Taxpayer Identification Number or 8.21 Burden of proof.
Social Security Number and direct de- 8.23 Classified information transferred to
posit information (bank routing num- the Department of Transportation.
ber and bank account number) under 31
U.S.C. 3325, 31 U.S.C. 3332, and 31 CFR Subpart C—Access to Information
Part 208. 8.25 Personnel Security Review Board.
8.27 Public availability of declassified infor-
§ 7.46 How are late payments handled? mation.
(a) DOT assesses interest on an un- 8.29 Access by historical researchers and
paid bill starting on the 31st day fol- former Presidential appointees.
lowing the day on which the notice of 8.31 Industrial security.
the amount due is first mailed to the AUTHORITY: E.O. 10450, 18 FR 2489, 3 CFR,
requester. Interest accrues from the 1949–1953 Comp., p. 936, amended by E.O.
date of the notice of amount due at the 10491, 18 FR 6583, 3 CFR, 1949–1953 Comp., p.
rate prescribed in 31 U.S.C. 3717. Re- 973, E.O. 10531, 19 FR 3069, 3 CFR, 1949–1953
ceipt by DOT of a payment for the full Comp., p. 973, E.O. 10548, 19 FR 4871, 3 CFR,
1954–1958 Comp., p. 200, E.O. 10550, 19 FR 4981,
amount of the fees owed within 30 cal- 3 CFR, 1954–1958 Comp., p. 200, E.O. 11605, 20
endar days after the date of the initial FR 2747, 3 CFR, 1971–1975 Comp., p. 580, E.O.
billing stops the accrual of interest, 11785, 39 FR 20053, 3 CFR, 1971–1975 Comp., p.
even if the payment has not been proc- 874, E.O. 12107, 44 FR 1055, 3 CFR, 1978 Comp.,
essed. p. 266; E.O. 12829, 58 FR 3479, 3 CFR, 1993
(b) If DOT does not receive payment Comp., p. 570, amended by E.O. 12885, 58 FR
of the fees charged within 30 calendar 65863, 3 CFR, 1993 Comp., p. 684; E.O. 13526, 75
days after the date the initial notice of FR 707, 3 CFR, 2010 Comp., p. 298; E.O. 12968,
3 CFR, 1995 Comp., p. 391, amended by E.O.
the amount due is first mailed to the
13467, 73 FR 38103, 3 CFR, 2009 Comp., p. 196.
requester, DOT assesses an administra-
tive charge to cover the cost of proc- SOURCE: 62 FR 23661, May 1, 1997, unless
essing and handling the delinquent otherwise noted.
claim. In addition, DOT applies a pen-
alty charge with respect to any prin- Subpart A—General
cipal amount of a debt that is more
than 90 days past due. Where appro- § 8.1 Scope.
priate, DOT uses other steps permitted This part sets forth procedures for
by Federal debt collection statutes, in- the classification, declassification, and

cluding disclosure to consumer report- availability of information that must
78
be protected in the interest of national Classified information or ‘‘classified

security, in implementation of Execu- national security information’’ means
tive Order 13526 of December 29, 2010, information that has been determined
‘‘Classified National Security Informa- under Executive Order 13526, or any
tion;’’ and for the review of decisions predecessor or successor order, to re-
to revoke, or not to issue, national se- quire protection against unauthorized
curity information clearances, or to disclosure, and is marked to indicate
deny access to classified information, its classified status when in documen-
under Executive Order 12968 of August tary form.
2, 1995, ‘‘Access to National Security Clearance means that an individual is
Information,’’ as amended by Execu- eligible, under the standards of Execu-
tive Order 13467 of June 30, 2008, ‘‘Re- tive Orders 10450, 12968, 13467, and ap-
forming Processes Related to Suit- propriate DOT regulations, for access
ability for Government Employment, to classified information.
Fitness for Contractor Employees, and Damage to the national security means
Eligibility for Access to Classified Na- harm to the national defense or foreign
tional Security Information.’’ relations of the United States from the
[81 FR 45980, July 15, 2016] unauthorized disclosure of information,
taking into consideration such aspects
§ 8.3 Applicability. of the information as the sensitivity,
This part applies to all elements of value, utility, and provenance of that
the Department of Transportation. information.
Declassification means the authorized
§ 8.5 Definitions. change in the status of information
As used in this part: from classified information to unclassi-
Authorized holder is any individual fied information.
who has been granted access to specific Downgrading means a determination
classified information in accordance by a declassification authority that in-
with Executive Order 13526 or any suc- formation classified and safeguarded at
cessor order. a specific level shall be classified and
Classification means the act or proc- safeguarded at a lower level.
ess by which information is determined Information means any knowledge
to be classified information. that can be communicated, or docu-
Classification levels means the fol- mentary material, regardless of its
lowing three levels at which informa- physical form or characteristics, that
tion may be classified: is owned by, produced by or for, or is
(a) Top secret. Information that re- under the control of the United States
quires the highest degree of protection, Government. ‘‘Control’’ means the au-
and the unauthorized disclosure of thority of the agency that originates
which could reasonably be expected to information, or its successor in func-
cause exceptionally grave damage to tion, to regulate access to the informa-
the national security that the original tion.
classification authority is able to iden- Mandatory declassification review
tify or describe. means the review for declassification
(b) Secret. Information that requires of classified information in response to
a substantial degree of protection, and a request for declassification that
the unauthorized disclosure of which meets the requirements of section 3.5
could reasonably be expected to cause of Executive Order 13526.
serious damage to the national secu- Original classification means an initial
rity that the original classification au- determination that information re-
thority is able to identify or describe. quires, in the interest of national secu-
(c) Confidential. Information that re- rity, protection against unauthorized
quires protection and the unauthorized disclosure.
disclosure of which could reasonably be Original classification authority means
expected to cause damage to the na- an individual authorized in writing, ei-
tional security that the original classi- ther by the President, the Vice Presi-
fication authority is able to identify or dent, or by agency heads or other offi-

describe. cials designated by the President, to
79
classify information in the first in- (2) Act on appeals of requests for
stance. classification reviews, and appeals of
[62 FR 23661, May 1, 1997, as amended at 81
requests for records under 5 U.S.C. 552
FR 45980, July 15, 2016] (Freedom of Information Act) when the
initial, and proposed final, denials are
§ 8.7 Spheres of responsibility. based on continued classification of the
(a) Pursuant to section 5.4(d) of Exec- record; and
utive Order 13526, and to section 6.1 of (3) Recommend to the Secretary,
Executive Order 12968, the Assistant when necessary, appropriate adminis-
Secretary for Administration is hereby trative action to correct abuse or vio-
designated as the senior agency official lation of any provision of Executive
of the Department of Transportation Order 12598 and implementing direc-
with assigned responsibilities to assure tives.
effective compliance with and imple- (b) The Information Security Review
mentation of Executive Order 13526, Committee will be composed of the As-
Executive Order 12968, Office of Man- sistant Secretary for Administration,
agement and Budget Directives, the who will serve as Chair; the General
regulations in this part, and related Counsel; and the Director of Security.
issuances. When matters affecting a particular
(b) In the discharge of these respon- Departmental component are at issue,
sibilities, the Assistant Secretary for the Associate Administrator for Ad-
Administration will be assisted by the ministration for that component (or
Director of Security , who, in addition for the Federal Aviation Administra-
to other actions directed by this part, tion, the Associate Administrator for
will evaluate the overall application of Security and Hazardous Materials
and adherence to the security policies Safety) will participate as an ad hoc
and requirements prescribed in this member, together with the Chief Coun-
part and who will report his/her find- sel of that component. Any regular
ings and recommendations to the As- member may designate a representa-
sistant Secretary for Administration, tive with full power to serve in his/her
heads of Departmental elements, and, place.
as appropriate, to the Secretary. (c) In carrying out its responsibilities
(c) Secretarial Officers and heads of to review decisions to revoke or not to
Departmental elements will assure issue clearances, or to deny access to
that the provisions in this part are ef- classified information, the Committee
fectively administered, that adequate will establish whatever procedures it
personnel and funding are provided for deems fit.
this purpose, and that corrective ac- [62 FR 23661, May 1, 1997, as amended at 81
tions that may be warranted are taken FR 45981, July 15, 2016]
promptly.
[62 FR 23661, May 1, 1997, as amended at 81 § 8.11 Authority to classify informa-
FR 45980, July 15, 2016] tion.
(a) Presidential Order of December
Subpart B—Classification/ 29, 2009, ‘‘Original Classification Au-
Declassification of Information thority’’ confers upon the Secretary of
Transportation the authority to origi-
§ 8.9 Information Security Review nally classify information as SECRET
Committee. or CONFIDENTIAL with further au-
(a) The Department of Transpor- thorization to delegate this authority.
tation Information Security Review (b) The following delegations of au-
Committee has the authority to: thority originally to classify informa-
(1) Act on all suggestions and com- tion as ‘‘Secret’’ or ‘‘Confidential’’,
plaints not otherwise resolved with re- which may not be redelegated, are
spect to the Department’s administra- hereby made:
tion of Executive Order 13526 and im- (1) Office of the Secretary of Transpor-
plementing directives, including those tation. The Deputy Secretary; Assist-
regarding overclassification, failure to ant Secretary for Administration; Di-

declassify, or delay in declassifying; rector of Intelligence, Security and
80
Emergency Response; Director of Secu- (1) The request for review describes
rity. the information with sufficient speci-
(2) Federal Aviation Administration. ficity to enable its location with a rea-
Administrator; Associate Adminis- sonable amount of effort;
trator for Security and Hazardous Ma- (2) The information has not been re-
terials Safety. viewed for declassification within the
(3) Maritime Administration. Adminis- prior two years. If the information has
trator. been reviewed within the prior two
(c) Although the delegations of au- years, or the information is the subject
thority set out in paragraph (b) of this of pending litigation, the requestor will
section are expressed in terms of posi- be informed of this fact, and of the De-
tions, the authority is personal and is partment’s decision not to declassify
invested only in the individual occu- the information and of his/her right to
pying the position. The authority may appeal the Department’s decision not
not be exercised ‘‘by direction of’’ a to declassify the information to the
designated official. The formal ap- Interagency Security Classification
pointment or assignment of an indi- Appeals Panel (ISCAP);
vidual to one of the identified positions (3) The document or material con-
or a designation in writing to act in taining the information responsive to
the absence of one of these officials, the request is not contained within an
however, conveys the authority to operational file exempted from search
originally classify information as SE- and review, publication, and disclosure
CRET or CONFIDENTIAL. under 5 U.S.C. 552 in accordance with
(d) Previous delegations and redele- law; and
gations of authority within the Depart- (4) The information is not the subject
ment of Transportation originally to of pending litigation.
classify information are hereby re- (c) All information reviewed for de-
scinded. classification because of a mandatory
[62 FR 23661, May 1, 1997, as amended at 76 review will be declassified if it does not
FR 19708, Apr. 8, 2011; 81 FR 45981, July 15, meet the standards for classification in
2016] Executive Order 13526. The information
will then be released unless with-
§ 8.13 Authority to downgrade or de- holding is otherwise authorized and
classify.
warranted under applicable law.
Information originally classified by (d) Mandatory declassification review
the Department may be specifically requests for information that has been
downgraded or declassified by either classified by the Department of Trans-
the official authorizing the original portation may be addressed to the Di-
classification, if that official is still rector of Security, U.S. Department of
serving in the same position, the origi- Transportation, 1200 New Jersey Ave-
nator’s current successor in function, a nue, Washington, DC 20590. The Direc-
supervisory official of either, officials tor will forward the request to the ap-
delegated declassification authority in propriate Departmental Original Clas-
writing by the Secretary, or by the De- sification Authority for processing.
partmental Information Security Re- (e) Denied requests may be appealed
view Committee. to the DOT Information Security Re-
view Committee (DISRC) through the
§ 8.15 Mandatory review for classifica-
tion. Director of Security within 60 days of
receipt of the denial. If the DISRC up-
(a) Mandatory declassification review holds the denial, it will inform the re-
requests will be processed in accord- questor of his or her final appeal rights
ance with 32 CFR 2001.33. to the ISCAP.
(b) Except as provided in paragraph b
of section 3.5 of Executive Order 13526, [81 FR 45981, July 15, 2016]
all information classified by the De-
partment of Transportation under Ex- § 8.17 Classification challenges.
ecutive Order 13526 or predecessor or- (a) Authorized holders of information
ders shall be subject to a review for declassified by the Department of Trans-
classification if: portation who, in good faith, believe
81
that its classification status is im- rity Review Committee, which will
proper are encouraged and expected to consult with its counterpart com-
challenge the classification status of mittee for the other agency.
the information before the Original (c) Classified information transferred
Classification Authority (OCA) having to the National Archives and Records
jurisdiction over the information. A Administration (NARA) will be declas-
formal challenge must be in writing, sified or downgraded by the Archivist
but need not be any more specific than of the United States in accordance
to question why information is or is with Executive Order 13526, directives
not classified, or is classified at a cer- issued pursuant to Executive Order
tain level. 13526, Departmental classification
(b) Classification challenges to DOT guides, and any existing procedural
information must be addressed to the agreement between NARA and the De-
DOT Original Classification Authority partment. The Department will take
(OCA) who is responsible for the infor- all reasonable steps to declassify infor-
mation. If unsure of the OCA, address mation contained in records deter-
the challenge to the DOT Director of mined to have permanent historical
Security. value before they are accessioned into
(c) Classification challenges will be the National Archives .
processed according to 32 CFR 2001.14. (d) To the extent practicable, the De-
[81 FR 45981, July 15, 2016] partment will adopt a system of
records management that will facili-
§ 8.19 [Reserved] tate the public release of documents at
the time such documents are declas-
§ 8.21 Burden of proof. sified under the provisions for auto-
For the purpose of determinations to matic declassification in section 3.3 of
be made under §§ 8.15 and 8.17, the bur- Executive Order 13526 and its imple-
den of proof is on the originating De- menting directives. To the maximum
partmental component to show that extent possible without destroying the
continued classification is warranted. integrity of the Department’s files, all
[62 FR 23661, May 1, 1997, as amended at 81 such material will be segregated or set
FR 45981, July 15, 2016] aside for public release upon request.
The Department will cooperate with
§ 8.23 Classified information trans- the Archivist in efforts to establish a
ferred to the Department of Trans- Government-wide database of informa-
portation. tion that has been declassified.
(a) Classified information officially
transferred to the Department in con- FR 45981, July 15, 2016]
junction with a transfer of functions,
and not merely for storage purposes,
will be considered to have been origi- Subpart C—Access to Information
nated by the Department.
(b) Classified information in the cus- § 8.25 Personnel Security Review
Board.
tody of the Department originated by
another department or agency that has (a) The Department of Transpor-
ceased to exist and for whom there is tation Personnel Security Review
no successor agency will be deemed to Board will, on behalf of the Secretary
have been originated by the Depart- of Transportation (except in any case
ment. This information may be declas- in which the Secretary personally
sified or downgraded by the Depart- makes the decision), make the admin-
ment after consultation with any other istratively final decision on an appeal
agency that has an interest in the sub- arising in any part of the Department
ject matter of the information. Such from:
agency will be allowed 30 calendar days (1) A decision not to grant access to
in which to express an objection, if it classified information;
so desires, before action is taken. A dif- (2) A decision to revoke access to
ference of opinion that cannot be re- classified information; or
solved at a lower level will be referred (3) A decision under § 8.29 to deny ac-
to the Departmental Information Secu- cess to classified information.
82
(b) The Personnel Security Review prior to the end of each calendar year
Board will be composed of: for the purpose of making the material
(1) Two persons appointed by the As- publicly available. To the maximum
sistant Secretary for Administration: extent possible without destroying the
One from the Office of Human Resource integrity of the Department’s files, all
Management, and one, familiar with such material will be segregated or set
personnel security adjudication, from aside for public release upon request.
the Office of Security, who will serve
as Chair; § 8.29 Access by historical researchers
(2) One person appointed by the Gen- and former Presidential appointees.
eral Counsel, who, in addition to serv-
Access to classified information may
ing as a member of the Board, will pro-
be granted to historical researchers
vide to the Board whatever legal serv-
and former Presidents and Vice-Presi-
ices it may require;
(3) One person appointed by the Ad- dents and their appointees as outlined
ministrator of the Federal Aviation in Executive Order 13526 or its suc-
Administration; and cessor order. The general guidelines for
(4) One person appointed by the Ad- access to classified information are
ministrator of the Federal Highway contained in Executive Order 12968.
Administration. [81 FR 45982, July 15, 2016]
(5) Any member may designate a rep-
resentative, meeting the same criteria § 8.31 Industrial security.
as the member, with full power to serve
(a) Background. The National Indus-
in his/her place.
(c) In carrying out its responsibilities trial Security Program was established
to review final decisions to revoke or by Executive Order 12829 of January 6,
deny access to classified information, 1993 for the protection of information
the Board will establish whatever pro- classified pursuant to Executive Order
cedures it deems fit. 12356 of April 2, 1982, National Security
Information, or its predecessor or suc-
[62 FR 23661, May 1, 1997, as amended at 81 cessor orders, and the Atomic Energy
FR 45981, July 15, 2016]
Act of 1954, as amended. The Secretary
§ 8.27 Public availability of declas- of Defense serves as the Executive
sified information. Agent for inspecting and monitoring
contractors, licensees, grantees, and
(a) It is a fundamental policy of the
certificate holders that require or will
Department to make information
available to the public to the max- require access to, or that store or will
imum extent permitted by law. Infor- store, classified information, and for
mation that is declassified for any rea- determining the eligibility for access
son loses its status as material pro- to classified information of contrac-
tected in the interest of national secu- tors, licensees, certificate holders, and
rity. Accordingly, declassified informa- grantees, and their respective employ-
tion will be handled in every respect on ees.
the same basis as all other unclassified (b) Implementing regulations. The Sec-
information. Declassified information retary of Transportation has entered
is subject to the Departmental public into an agreement for the Secretary of
information policies and procedures, Defense to render industrial security
with particular reference to the Free- services for the Department of Trans-
dom of Information Act (5 U.S.C. 552) portation. Regulations prescribed by
and implementing Departmental regu- the Secretary of Defense to fulfill the
lations (49 CFR Part 7). provisions of Executive Order 12829
(b) In furtherance of this policy, all have been extended to protect release
classified material produced after June of classified information for which the
1, 1972 that is of sufficient historical or Secretary of Transportation is respon-
other value to warrant preservation as sible. Specifically, this regulation is
permanent records in accordance with DOD 5220.22–M, National Industrial Se-
appropriate records administrative curity Program Operating Manual, and
standards, and that becomes declas- is effective within the Department of

sified, will be systematically reviewed Transportation. Appropriate security
83
staff, project personnel, and con- (1) Conserve the time of employees
tracting officers must assure that ac- for conducting official business;
tions required by the regulation are (2) Minimize the possibility of involv-
taken. ing the Department in controversial
[62 FR 23661, May 1, 1997, as amended at 81 issues not related to its mission;
FR 45982, July 15, 2016] (3) Maintain the impartiality of the
Department among private litigants;
PART 9—TESTIMONY OF EMPLOY- (4) Avoid spending the time and
EES OF THE DEPARTMENT AND money of the United States for private
purposes; and
PRODUCTION OF RECORDS IN (5) To protect confidential, sensitive
LEGAL PROCEEDINGS information and the deliberative proc-
esses of the Department.
Sec.
9.1 Purpose.
(c) Agency counsel, in his or her dis-
9.2 Applicability. cretion, may permit an exception from
9.3 Definitions. any requirement in this part. The ex-
9.5 General prohibition of production or dis- ception may be granted only when the
closure in legal proceedings. deviation will not interfere with mat-
9.7 Testimony by employees before the De- ters of operational or military neces-
partment or in other legal proceedings in sity, and when agency counsel deter-
which the United States is a party.
mines that:
9.9 Legal proceedings between private liti-
gants: General rules. (1) It is necessary to prevent a mis-
9.11 Legal proceedings between private liti- carriage of justice;
gants: Demands. (2) The Department has an interest in
9.13 Legal proceedings between private liti- the decision that may be rendered in
gants: Procedures to request records. the legal proceeding; or
9.15 Legal proceedings between private liti-
(3) The exception is in the best inter-
gants: Procedures to request testimony.
9.17 Legal proceedings between private liti- est of the Department or the United
gants: Procedures for taking testimony. States.
9.19 Acceptance of service on behalf of Sec- For Office of Inspector General em-
retary. ployees and documents, the Inspector
AUTHORITY: 5 U.S.C. 301; 45 U.S.C. 41–42; 49 General, in conjunction with the Gen-
U.S.C. 322; 49 U.S.C. 504(f); 23 U.S.C. 409. eral Counsel of the Department, may
SOURCE: 58 FR 6724, Feb. 2, 1993, unless oth- permit an exception from any require-
erwise noted. ment of this part if the Inspector Gen-
eral determines, based on the Inspector
§ 9.1 Purpose. General Act of 1978, as amended, that
(a) This part sets forth procedures application of the requirement would
governing the testimony of an em- be inappropriate.
ployee in legal proceedings in which
the United States is a party. It also § 9.2 Applicability.
sets forth procedures to be followed This part applies to the testimony of
when an employee is issued a subpoena, an employee in legal proceedings in
order or other demand (collectively re- which the United States is a party. It
ferred to in this part as a ‘‘demand’’) also applies in legal proceedings be-
by a court or other competent author- tween private litigants to requests or
ity, or is requested by a private liti- demands for testimony or records con-
gant, to provide testimony or produce cerning information acquired in the
records concerning information ac- course of an employee performing offi-
quired in the course of performing official duties or because of the employee’s
cial duties or because of the employee’s official status. This part does not apply
official status. It also prescribes the to any legal proceeding in which an
policies and procedures of the Depart- employee is to testify as to facts or
ment with respect to the acceptance of events that are in no way related to
service of legal process and pleadings the employee’s official duties or the
in legal proceedings involving the De- functions of the Department. Nor does
partment. it apply to Congressional demands for

(b) The purposes of this part are to: testimony or documents.
84
§ 9.3 Definitions. resent the Department in a specific

For purposes of this part: legal proceeding.
Department means the Department of Testimony means any written or oral
Transportation (DOT), including the statement by a witness, including
Office of the Secretary (which encom- depositions, answers to interrogatories,
passes the Office of the Inspector Gen- affidavits, declarations, and state-
eral) and the following operating ad- ments at a hearing or trial.
ministrations while they are part of
DOT: § 9.5 General prohibition of production
(a) The U.S. Coast Guard. or disclosure in legal proceedings.
(b) The Federal Aviation Administra- No employee of the Department may
tion. provide testimony or produce any ma-
(c) The Federal Highway Administra- terial contained in the files of the De-
tion. partment, or disclose any information
(d) The Federal Railroad Administra- relating to, or based upon, material
tion. contained in the files of the Depart-
(e) The Federal Transit Administra- ment, or disclose any information or
tion. produce any material acquired as part
(f) The St. Lawrence Seaway Devel- of the performance of that employee’s
opment Corporation. official duties or because of that em-
(g) The National Highway Traffic ployee’s official status unless author-
Safety Administration. ized in accordance with this part, or by
(h) The Maritime Administration. other applicable law.
(i) The Research and Special Pro-
grams Administration. § 9.7 Testimony by employees before
(j) Any DOT operating administra- the Department or in other legal
tion established after the effective date proceedings in which the United
of this part. States is a party.
Legal proceeding means any case or
In any legal proceeding before the
controversy pending before any federal,
Department or in which the United
state, or local court (including grand
States (including any federal agency or
jury proceedings), any administrative
officer of the United States) is a party:
proceeding pending before any federal,
state, or local agency, or any legisla- (a) Agency counsel shall arrange for
tive proceeding pending before any an employee to testify as a witness for
state or local agency. the United States whenever the attor-
Legal proceeding between private liti- ney representing the United States re-
gants means any legal proceeding in quests it.
which neither the Department of (b) An employee may testify for the
Transportation nor the United States United States both as to facts within
(including any federal agency or officer the employee’s personal knowledge and
of the United States in his or her offi- as an expert or opinion witness. Except
cial capacity) is a party. as provided in paragraph (c) of this sec-
Employee of the Department or Em- tion, an employee may not testify as
ployee means any current or former of- an expert or opinion witness, with re-
ficer or employee of the Department; gard to any matter arising out of the
any active duty, retired, or former offi- employee’s official duties or the func-
cer or enlisted member of the Coast tions of the Department, for any party
Guard; or any current or former con- other than the United States in any
tractor (including any corporation or legal proceeding in which the United
other entity and any employee or sub- States is a party. An employee who re-
contractor). ceives a demand to testify on behalf of
Agency counsel means the General a party other than the United States
Counsel of the Department or the Chief may testify as to facts within the em-
Counsel of any operating administra- ployee’s personal knowledge, provided
tion of the Department concerned, any that the testimony be subject to the
person to whom the General Counsel or prior approval of agency counsel and to
Chief Counsel has delegated authority, the Federal Rules of Civil Procedure
or any person who is authorized to rep- and any applicable claims of privilege.
85
(c) An employee may testify as an ex- employee’s official duties or the func-
pert or opinion witness on behalf of an tions of the Department. An employee
officer or enlisted member of the Coast who is asked questions that call for ex-
Guard in any legal proceeding con- pert or opinion testimony shall decline
ducted by the Coast Guard. to answer on the grounds that it is for-
bidden by this part. Agency counsel
§ 9.9 Legal proceedings between pri- shall advise the employee on how to
vate litigants: General rules. proceed if the presiding officer directs
In legal proceedings between private the employee to provide expert or opin-
litigants: ion testimony.
(a) The proper method for obtaining (d) An employee shall not provide
testimony or records from an employee testimony at a trial or hearing. An em-
is to submit a request to agency coun- ployee’s testimony shall be limited to
sel as provided in §§ 9.13 and 9.15 of this a single deposition, affidavit, or set of
part, not to serve a demand on the em- interrogatories, concerning the cir-
ployee. Whenever, in a legal proceeding cumstances (e.g. an accident) from
between private litigants, an employee which the proceeding arose. Where
is served with a demand, or receives a multiple legal proceedings concerning
request, to testify in that employee’s those circumstances are pending, or
official capacity or produce records, can occur, it shall be the duty of the
the employee shall immediately notify private litigant seeking the testimony
agency counsel. to ascertain, to the extent feasible, the
(b) If authorized to testify pursuant identities of all parties, or potential
to these rules, an employee may testify parties, to those proceedings and notify
only as to facts within that employee’s them that a deposition has been grant-
personal knowledge with regard to ed and that they have the opportunity
matters arising out of his or her offi- to participate. The private litigant
cial duties. shall submit an affidavit or certifi-
(1) When the proceeding arises from cation describing the extent of the
an accident, an employee may testify search for parties and potential parties
only as to personally known facts, not and listing the names of the parties
reasonably available from other and potential parties notified.
sources, observed by the employee or (e) Where an employee has already
uncovered during the employee’s inves- provided testimony, any party wishing
tigation of the accident or observed by to obtain further testimony from that
the employee even if he or she did not employee concerning the same matter
investigate the accident. The employee or occurrence, whether in the same or
shall decline to testify regarding facts a different private legal proceeding,
beyond the scope of his or her official may submit a request to agency coun-
duties. sel to waive the restrictions of para-
(2) The employee shall not testify to graph (d) of this section. The request
facts that are contained in a report, or shall, in addition to meeting the re-
any part of a report, unless the em- quirements of § 9.15 of this part, state
ployee has obtained permission from why the requester should be permitted
agency counsel to disclose the informa- to gather additional information de-
tion. spite not having previously requested
(3) The employee shall not disclose the information when it had an oppor-
confidential or privileged information tunity to do so, and why the additional
unless the employee has obtained per- testimony is now required and the
mission from agency counsel to dis- prior testimony or previously supplied
close the information. documents are insufficient.
(4) The employee shall not testify as
to facts when agency counsel deter- § 9.11 Legal proceedings between pri-
mines that the testimony would not be vate litigants: Demands.
in the best interest of the Department (a) If an employee receives a demand
or the United States if disclosed. that has not been validly issued or
(c) An employee shall not testify as served, agency counsel may instruct
an expert or opinion witness with re- the employee not to comply with the
gard to any matter arising out of the demand.
86
(b) If an employee receives a demand of the records to the proceeding. The

(validly issued and served) to testify or request should be resolved before any
produce records, agency counsel, in his request for testimony under § 9.15 is
or her discretion, may grant the em- submitted. Where a request for testi-
ployee permission to testify or produce mony includes a request for additional
records only if the purposes of this part records, it shall indicate precisely how
are met or agency counsel determines this new request differs in scope from
that an exception is appropriate. any previous request in order to avoid
(c) If a demand is issued to an em- agency duplication of effort. Agency
ployee, agency counsel shall contact counsel shall notify the requester of
the requester of the demand, inform the approval or denial of the request.
that person of the requirements of this (b) [Reserved]
part, and may, in agency counsel’s dis-
cretion, ask that the demand be with- § 9.15 Legal proceedings between pri-
drawn. vate litigants: Procedures to re-
quest testimony.
(d) If the requester of the demand re-
fuses to have it withdrawn or fails to (a) Any party seeking the testimony
comply with this part, the Department of an employee in a legal proceeding
may seek to quash the demand. between private litigants, concerning
(e) If the court or other competent facts within the employee’s personal
authority declines to grant the Depart- knowledge with regard to matters aris-
ment’s motion to quash, agency coun- ing out of the employee’s official du-
sel shall instruct the employee whether ties, shall, rather than serving a de-
to testify or produce documents pursu- mand for the testimony, request the
ant to the demand. Agency counsel testimony at least 30 days before it is
may permit the testimony under § 9.1(c) intended to be taken or received. The
of this part. If response to a demand is request must be submitted to agency
required before the court or other com- counsel and must include:
petent authority rules on the motion (1) The title of the case, docket num-
to quash and the court fails to stay the ber, and the court, or otherwise clearly
demand, the employee must appear at identify the legal proceeding involved;
the stated time and place, produce a (2) A statement setting forth the
copy of this part, and respectfully basic facts in the proceeding, such as
refuse to provide any testimony or the type, date, and location of an acci-
produce any documents. Agency coun- dent;
sel shall take steps to arrange for legal (3) A summary of the unresolved
representation for the employee. Agen- issues applicable to the testimony
cy counsel shall advise the employee sought;
how to respond, including not to tes- (4) A summary of the testimony
tify, if the court or other competent sought and its relevant to the pro-
authority rules that the demand must ceeding;
be complied with irrespective of these (5) A certification with support, that
regulations. the information desired is not reason-
ably available from other sources, in-
§ 9.13 Legal proceedings between pri- cluding Departmental documents;
vate litigants: Procedures to re- (6) Pursuant to § 9.9(d) of this part, an
quest records. affidavit or certification describing the
(a) In a legal proceeding between pri- extent of a search of parties and poten-
vate litigants, a party who wishes to tial parties and listing the names of
obtain records from the Department the parties and potential parties noti-
shall submit to agency counsel a re- fied; and
quest for the records. The request will (7) A declaration that the party will
ordinarily be handled in accordance not seek expert or opinion testimony
with the Department’s procedures con- from the witness or seek the testimony
cerning requests for records found at 49 of the witness at a hearing or trial in
CFR part 7. If the party does not follow the proceeding.
the procedures specified in that part, The request shall specify which form of
the request must be accompanied by a testimony (deposition, affidavit, dec-

statement setting forth the relevance laration, or answers to interrogatories)
87
is desired and the date by which it is the service and take appropriate ac-
desired; however, only one form, the tion. This section does not in any way
one least burdensome to the Depart- abrogate or modify the requirements of
ment that will provide the needed in- Rule 4(d)(4) and 4(d)(5) of the Federal
formation, will be permitted for each Rules of Civil Procedure regarding
witness. service of summons and complaint.
(b) The party seeking the testimony
shall include with its request for testi- PART 10—MAINTENANCE OF AND
mony a copy of any prior request(s) ACCESS TO RECORDS PER-
made by the same requester to the De-
partment or other agency of the United
TAINING TO INDIVIDUALS
States for records pertaining to the
Subpart A—Applicability and Policy
matter being litigated and of the re-
sponse (not including the records them- Sec.
selves) to the request(s). The party 10.1 Applicability.
seeking the testimony shall also com- 10.3 Policy.
ply with any agency counsel request 10.5 Definitions.
that copies of the records previously
disclosed by the Department, or a list Subpart B—General
of those records, be furnished. 10.11 Administration of part.
(c) In accordance with the require- 10.13 Privacy Officer.
ment of this section and the general 10.15 Protection of records.
provisions of this part, agency counsel
shall notify the requester of the ap- Subpart C—Maintenance of Records
proval or denial of the request. Agency
counsel may attach special conditions 10.21 General.
to its approval. 10.23 Accounting of disclosures.
10.25 Mailing lists.
§ 9.17 Legal proceedings between pri- 10.27 Government contractors.
vate litigants: Procedures for tak- 10.29 Social Security numbers.
ing testimony.
Subpart D—Availability of Records
(a) Testimony of an employee of the
Department may be taken only at the 10.31 Requests for records.
office to which the employee is as- 10.33 Acknowledgment and access.
signed, or any other place designated 10.35 Conditions of disclosure.
by agency counsel. Additional condi- 10.37 Identification of individual making re-
tions may be specified under § 9.15(c) of quest.
this part. The time shall be reasonably 10.39 Location of records.
fixed to avoid substantial interference
Subpart E—Correction of Records
with the performance of the employee’s
or agency counsel’s official duties. 10.41 Requests for correction of records.
(b) Upon completion of the testimony 10.43 Time limits.
of an employee of the Department, a 10.45 Statement of disagreement.
copy of the transcript of the testimony
shall be furnished, at the expense of Subpart F—Procedures for Reconsidering
the party requesting the testimony, to Decisions Not To Grant Access to or
agency counsel for the Department’s Amend Records
files. 10.51 General.
§ 9.19 Acceptance of service on behalf
of Secretary. Subpart G—Exemptions
In any legal proceeding, at the option 10.61 General exemptions.
of the server, process or pleadings may 10.63 Specific exemptions.
be served on agency counsel, with the
same effect as if served upon the Sec- Subpart H—Fees
retary or the head of the operating ad- 10.71 General.
ministration concerned, as the case
10.73 Payment of fees.

may be. The official accepting service 10.75 Fee schedule.
under this section shall acknowledge 10.77 Services performed without charge.
88
Subpart I—Criminal Penalties vacy Act regulations (49 CFR Part

1007), except to the extent that any sys-
10.81 Improper disclosure.
tem of records notice provides other-
10.83 Improper maintenance of records.
10.85 Wrongfully obtaining records. wise.
APPENDIX A TO PART 10—EXEMPTIONS
(1) Federal Aviation Administration.
(2) Federal Highway Administration.
AUTHORITY: 5 U.S.C. 552a; 49 U.S.C. 322. (3) Federal Motor Carrier Safety Ad-
SOURCE: 45 FR 8993, Feb. 11, 1980, unless ministration.
otherwise noted. (4) Federal Railroad Administration.
(5) Federal Transit Administration.
Subpart A—Applicability and (6) National Highway Traffic Safety
Policy Administration.
(7) St. Lawrence Seaway Develop-
§ 10.1 Applicability. ment Corporation.
This part implements section 552a of (8) Pipeline and Hazardous Materials
title 5, United States Code, as well as Safety Administration.
other provisions of the Privacy Act of (9) Research and Innovative Tech-
1974, and prescribes rules governing the nology Administration.
availability of those records of the De- (10) Maritime Administration.
partment of Transportation which re- General Counsel means the General
late to citizens of the United States Counsel of the Department.
and aliens lawfully admitted for per- Includes means ‘‘includes but is not
manent residence. limited to;’’
[45 FR 8993, Feb. 11, 1980, as amended at 62 Individual means a citizen of the
FR 23666, May 1, 1997] United States or an alien lawfully ad-
mitted;
§ 10.3 Policy. Maintain includes maintain, collect,
It is the policy of the Department of use, or disseminate;
Transportation to comply with the let- May is used in a permissive sense to
ter and the spirit of the Privacy Act state authority or permission to do the
(the Act). Therefore, personal data con- act prescribed;
tained in each system of records is af- Record means any item, collection, or
forded adequate protection against un- grouping of information about an indi-
authorized access, is as accurate as is vidual that is maintained by the De-
feasible, and is limited to that nec- partment including, but not limited to,
essary to accomplish the stated use or education, financial transactions, med-
uses of the system. Further, no system ical history, and criminal or employ-
of records is exempted from the re- ment history and that contains the
quirements of the Act unless it is de- name of, or an identifying number,
termined that to do so is in the best in- symbol, or other identifying particular
terest of the government with due con- assigned to, the individual, such as a
cern for individual rights. finger or voice print or a photograph;
§ 10.5 Definitions. Transportation or any person to whom
Unless the context requires other- has been delegated authority in the
wise, the following definitions apply in matter concerned;
this part: System of records means a group of
Administrator means the head of an any records under the control of the
operating administration and includes Department from which information is
the Under Secretary for Security and retrieved by the name of the individual
the Commandant of the Coast Guard. or by some identifying number, sym-
Department means the Department of bol, or other identifying particular as-
Transportation, including the Office of signed to the individual;
the Secretary, the Office of Inspector Statistical record means a record in a
General, and the following operating system of records maintained for sta-
administrations: This definition spe- tistical research or reporting purposes
cifically excludes the Surface Trans- only and not in whole or in part in
portation Board, which has its own Pri- making any determination about an
89
identifiable individual, except as pro- ministrations to assist them in admin-

vided by section 8 of title 13, United istering the Act.
States Code; and
[73 FR 33329, June 12, 2008]
Routine use means, with respect to
the disclosure of a record, the use of § 10.15 Protection of records.
such record for a purpose which is com-
patible with the purpose for which it (a) No person may, without permis-
was collected. sion, remove any record made available
for inspection or copying under this
[45 FR 8993, Feb. 11, 1980, as amended at 62
part from the place where it is made
FR 23667, May 1, 1997; 65 FR 48184, Aug. 7,
2000; 67 FR 54746, Aug. 26, 2002; 73 FR 33329, available. In addition, no person may
June 12, 2008] steal, alter, mutilate, obliterate, or de-
stroy, in whole or in part, such a
Subpart B—General record.
(b) Section 641 of title 18 of the
§ 10.11 Administration of part. United States Code provides, in perti-
Authority to administer this part in nent part, as follows:
connection with the records of the Of- Whoever * * * steals, purloins, or know-
fice of the Secretary is delegated to the ingly converts to his use or the use of an-
Chief Information Officer. Authority to other, or without authority, sells, conveys or
administer this part in connection with disposes of any record * * * or thing of value
records in each operating administra- of the United States or of any department or
tion is delegated to the Administrator agency thereof * * * shall be fined not more
than $10,000 or imprisoned not more than 10
concerned. An Administrator may re-
years or both; but if the value of such prop-
delegate to officers of that administra- erty does not exceed the sum of $100, he shall
tion the authority to administer this be fined not more than $1,000 or imprisoned
part in connection with defined sys- not more than one year or both * * *.
tems of records. An Administrator,
however, may redelegate his or her du- (c) Section 2071 of title 18 of the
ties under subparts F and G of this part United States Code provides, in perti-
only to his or her deputy and to not nent part, as follows:
more than one other officer who re- Whoever willfully and unlawfully conceals,
ports directly to the Administrator and removes, mutilates, obliterates, or destroys,
who is located at the headquarters of or attempts to do so, or with intent to do so
that administration or at the same lo- takes and carries away any record, pro-
cation as the majority of that adminis- ceeding, map, book, paper, document, or
tration’s systems of records. other thing, filed or deposited * * * in any
public office, or with any * * * public officer
[45 FR 8993, Feb. 11, 1980, as amended at 62 of the United States, shall be fined not more
FR 23667, May 1, 1997; 73 FR 33329, June 12, than $2,000 or imprisoned not more than 3
2008] years, or both.
§ 10.13 Privacy Officer.

Subpart C—Maintenance of
(a) To assist with implementation,
evaluation, and administration issues,
Records
the Chief Information Officer appoints § 10.21 General.
a principal coordinating official with
the title Privacy Officer, and one Pri- Except to the extent that a system of
vacy Act Coordinator from his/her records is exempt in accordance with
staff. subpart G of this part, the Department,
(b) Inquiries concerning Privacy Act with respect to each system of records:
matters, or requests for assistance, (a) Maintains in its records only such
may be addressed to the Privacy Act information about an individual as is
Officer (S–80), Department of Transpor- relevant and necessary to accomplish a
tation, 1200 New Jersey Avenue, SE., purpose of the Department required to
Washington, DC 20590. be accomplished by statute or by exec-
(c) Administrators may designate utive order of the President;
Privacy Officers or Coordinators to act (b) Collects information to the great-

as central coordinators within their ad- est extent practicable directly from
90
the subject individual when the infor- (9) The categories of sources of
mation may result in adverse deter- records in the system;
minations about an individual’s rights, (e) Maintains all records which are
benefits, or privileges under Federal used in making any determination
programs; about any individual with such accu-
(c) Informs each individual whom it racy, relevancy, timeliness, and com-
asks to supply information, on the pleteness as is reasonably necessary to
form which it uses to collect the infor- assure fairness to the individual in the
mation or on a separate form that can determination;
be retained by the individual of: (f) Prior to disseminating any record
(1) The authority (whether granted about an individual to any person
by statute, or by executive order of the other than an agency, unless the dis-
President) which authorizes the solici- semination is made pursuant to
tation of the information and whether § 10.35(a)(2), makes reasonable efforts to
disclosure of such information is man- assure that such records are accurate,
datory or voluntary; complete, timely, and relevant for the
(2) The principal purpose or purposes Department’s purposes;
for which the information is intended (g) Maintains no record describing
to be used; how any individual exercises rights
(3) The routine uses, as published guaranteed by the First Amendment
pursuant to paragraph (d)(4) of this sec- unless:
tion, which may be made of the infor- (1) Expressly authorized by the Gen-
mation; and eral Counsel; and
(4) The effects, if any, on the indi-
(2) Expressly authorized by statute or
vidual of not providing all or any part
by the individual about whom the
of the requested information;
record is maintained or unless perti-
(d) Publishes in the FEDERAL REG- nent to and within the scope of an au-
ISTER at least annually a notice of the
thorized law enforcement activity;
existence and character of the system
(h) Makes reasonable efforts to serve
of records, including:
notice on an individual when any
(1) The name and location of the sys-
record on such individual is made
tem;
available to any person under compul-
(2) The categories of individuals on
sory legal process when such process
whom records are maintained in the
becomes a matter of public record.
system;
(3) The categories of records main- § 10.23 Accounting of disclosures.
tained in the system;
(4) Each routine use of the records Each operating administration, the
contained in the system, including the Office of Inspector General, and the Of-
categories of users and the purpose of fice of the Secretary, with respect to
such use; each system of records under its con-
(5) The policies and practices regard- trol:
ing storage, retrievability, access con- (a) Except for disclosures made under
trols, retention, and disposal of the § 10.35(a) (1) or (2) of this part, keep an
records; accurate accounting of:
(6) The title and business address of (1) The date, nature, and purpose of
the official responsible for the system each disclosure of a record to any per-
of records; son or to another agency made under
(7) The procedures whereby an indi- § 10.33; and
vidual can be notified upon request if (2) The name and address of the per-
the system of records contains a record son or agency to whom the disclosure
pertaining to that individual; is made;
(8) The procedures whereby an indi- (b) Retains the accounting made
vidual can be notified upon request under paragraph (a) of this section for
how to gain access to any record per- at least five years or the life of the
taining to that individual contained in record, whichever is longer, after the
the system of records, and how to con- disclosure for which the accounting is
test its content; and made;
91
(c) Except for disclosures made under or other authority such number is so-
§ 10.33(a)(7) of this part, makes the ac- licited, what uses are made of it, and
counting made under paragraph (a)(1) what detriments, including delay in
of this section available to the indi- the location of records, are incurred if
vidual named in the record at his re- the number is not provided.
quest; and
(d) Informs any person or other agen- Subpart D—Availability of Records
cy about any correction or notation of
dispute made by the agency in accord- § 10.31 Requests for records.
ance with § 10.45 of any record that has
(a) Ordinarily, each person desiring
been disclosed to the person or agency
if an accounting of the disclosure was to determine whether a record per-
made. taining to him/her is contained in a
system of records covered by this part
[45 FR 8993, Feb. 11, 1980, as amended at 62 or desiring access to a record covered
FR 23667, May 1, 1997] by this part, or to obtain a copy of such
a record, shall make a request in writ-
§ 10.25 Mailing lists.
ing addressed to the system manager.
An individual’s name and address is The ‘‘Privacy Act Issuances’’ published
not sold or rented unless such action is by the Office of the Federal Register,
specifically authorized by law. This National Archives and Records Admin-
provision shall not be construed to re- istration, describes the systems of
quire the withholding of names and ad- records maintained by all Federal
dresses otherwise permitted to be made agencies, including the Department
public. and its components. In exceptional
cases oral requests are accepted. A de-
§ 10.27 Government contractors.
scription of DOT Privacy Act systems
When the Department provides by a notices is available through the Inter-
contract for the operation by or on be- net free of charge at http://
half of the Department of a system of www.access.gpo.gov/suldocs/aces/
records to accomplish a function of the PrivacyAct.shtml?desc015.html. See
Department, the requirements of this § 10.13(b) regarding inquiries concerning
part are applied to such system. For Privacy Act matters or requests for as-
purposes of subpart I, Criminal Pen- sistance.
alties, any such contractor and any (b) Each request shall specify the
employee of the contractor are consid- name of the requesting individual and
ered, in accordance with section 3(m) of the system of records in which the sub-
the Privacy Act, to be employees of the ject record is located or thought to be
Department. located. If assistance is required to de-
§ 10.29 Social Security numbers. termine the system of records identi-
fication number assigned in the sys-
(a) No individual is denied any right, tems notices, such assistance may be
benefit, or privilege provided by law obtained from the appropriate Privacy
because of such individual’s refusal to Act officer or his assistant. Refer to
disclose his Social Security account § 10.13 for procedures for requesting as-
number. sistance.
(b) The provisions of paragraph (a) of
this section do not apply to: [45 FR 8993, Feb. 11, 1980, as amended at 62
(1) Any disclosure which is required FR 23667, May 1, 1997]
by Federal statute; or
(2) The disclosure of a Social Secu- § 10.33 Acknowledgment and access.
rity number when such disclosure was (a) Requests by an individual to de-
required under statute or regulation termine whether he or she is the sub-
adopted prior to January 1, 1975, to ject of a record in a system of records,
verify the identity of an individual. or requesting access to a record in a
(c) When an individual is requested to system of records, should be acknowl-
disclose his or her Social Security ac- edged within 10 working days, where
count number, that individual is in- the request is by mail. For requests in
formed whether that disclosure is man- person, an immediate response is given,

datory or voluntary, by what statutory either granting access or informing
92
such individual when notification or has made a written request to the

access may be expected. agency which maintains the record
(b) If the response granting access or specifying the particular portion de-
copies of the record is made within 10 sired and the law enforcement activity
working days, separate acknowledg- for which the record is sought;
ment is not required. (8) To a person pursuant to a showing
(c) Although requests for access to a of compelling circumstances affecting
record are normally in writing, e.g., by the health or safety of an individual if
filing a written form or letter, it is the upon such disclosure notification is
option of the individual to mail or transmitted to the last known address
present the request form in person. of such individual;
(9) To either House of the Congress,
§ 10.35 Conditions of disclosure. or to the extent of matters within its
(a) No record that is contained with- jurisdiction, any committee or sub-
in a system of records of the Depart- committee thereof, any joint com-
ment is disclosed by any means of committee of the Congress or sub-
munication to any person, or to an- committee of any such joint com-
other agency, except pursuant to a mittee;
written request by, or with the prior (10) To the Comptroller General, or
written consent of, the individual to any authorized representatives, in the
whom the record pertains, unless dis- course of the performance of the duties
closure of the record would be: of the General Accounting Office; or
(1) To those officers and employees of (11) Pursuant to the order of a court
the Department who have a need for of competent jurisdiction.
the record in the performance of their (12) To a consumer reporting agency
duties; in accordance with 31 U.S.C. 3711(f).
(2) Required under part 7 of this title (b) Any individual requesting access
which implements the Freedom of In- to his or her record or to any informa-
formation Act; tion pertaining to that individual
(3) For a routine use as defined in which is contained within a system of
§ 10.5 and described pursuant to records within the Department has ac-
§ 10.21(d)(4); cess to that record or information un-
(4) To the Bureau of the Census for less the system of records within which
purposes of planning or carrying out a the record or information is contained
census or survey or related activity is exempted from disclosure in accord-
pursuant to the provisions of title 13, ance with subpart G, provided, how-
United States Code; ever, that nothing in this part is
(5) To a recipient who has provided deemed to require that an individual be
the Department with advance adequate given access to any information com-
written assurance that the record will piled in reasonable anticipation of a
be used solely as a statistical research civil action or proceeding. No exemp-
or reporting record, and the record is tion contained in subpart G of part 7 of
to be transferred in a form that is not the regulations of the Office of the Sec-
individually identifiable; retary is relied upon to withhold from
(6) To the National Archives of the an individual any record which is oth-
United States as a record which has erwise accessible to such individual
sufficient historical or other value to under the provisions of this part. Any
warrant its continued preservation by individual who is given access to a
the U.S. Government, or for evaluation record or information pertaining to
by the Administrator of General Serv- him is permitted to have a person of
ices or his designee to determine his or her own choosing accompany
whether the record has such value; him and to have a copy made of all or
(7) To another agency or to an instru- any portion of the record or informa-
mentality of any governmental juris- tion in a form comprehensible to the
diction within or under the control of individual. When deemed appropriate,
the United States for a civil or crimi- the individual may be required to fur-
nal law enforcement activity if the ac- nish a written statement authorizing
tivity is authorized by law, and if the discussion of his record in the accom-
head of the agency or instrumentality panying person’s presence.
93
(c) Medical records. Where requests § 10.39 Location of records.

are for access to medical records, in-
Each record made available under
cluding psychological records, the deci-
this subpart is available for inspection
sion to release directly to the indi-
and copying during regular working
vidual, or to withhold direct release,
hours at the place where it is located,
shall be made by a medical practi-
tioner. Where the medical practitioner or, upon reasonable notice, at the docu-
has ruled that direct release will do ment inspection facilities of the Office
harm to the individual who is request- of the Secretary or each administra-
ing access, normal release through the tion. Original records may be copied
individual’s chosen medical practi- but may not be released from custody.
tioner will be recommended. Final re- Upon payment of the appropriate fee,
view and decision on appeals of dis- copies are mailed to the requester.
approvals of direct release will rest [62 FR 23667, May 1, 1997]
with the General Counsel.
(d) Any person requesting access to Subpart E—Correction of Records
records or to any information per-
taining to other individuals is not § 10.41 Requests for correction of
granted such access unless that person records.
can show that he or she has obtained
Any person who desires to have a
permission for such access from the in-
dividual to whom the record pertains, record pertaining to that person cor-
unless the request comes within one of rected shall submit a written request
the exceptions of paragraph (a) of this detailing the correction and the rea-
section. sons the record should be so corrected.
Requests for correction of records shall
[45 FR 8993, Feb. 11, 1980, as amended at 62 be submitted to the System Manager.
FR 23667, May 1, 1997]
[62 FR 23667, May 1, 1997]
§ 10.37 Identification of individual
making request. § 10.43 Time limits.
No record or information contained Within ten days (excluding Saturday,
in a system of records is disclosed to an Sunday, and legal holidays) of the re-
individual nor is any correction of a ceipt in accordance with § 10.41 of a re-
record in accordance with subpart E quest by an individual to amend a
made at the request of an individual record pertaining to him, the receipt of
unless that individual demonstrates the request is acknowledged in writing.
that he or she is who he or she claims If a determination is made to correct
to be. Normally, identity can be proven the record as requested, the correction
for individuals who appear in person by is promptly made. If a determination is
the presentation of an identifying doc- made not to correct a record the indi-
ument issued by a recognized organiza- vidual is informed promptly of the
tion (e.g., a driver’s license or a credit right to appeal in accordance with sub-
card) and which contains a means of part F. If an appeal of a refusal to cor-
verification such as a photograph or a rect a record is in accordance with sub-
signature. For requests by mail, the part F, a determination whether to
unique identifier used in the system correct the record is made within thir-
should be included if known. Responses ty days (excluding Saturday, Sunday,
to mail requests are normally sent and legal holidays) of the receipt of the
only to the name and address listed in appeal unless, for good cause shown the
the system of records. In the case of
Administrator concerned, or in the
particularly sensitive records, addi-
case of the Office of the Secretary, the
tional identification requirements may
General Counsel, extends such period.
be imposed. In such cases, these addi-
tional requirements are listed in the Where an extension is taken, the party
public notice for the system. taking the appeal is promptly notified
of such fact.
FR 23667, May 1, 1997]
94
§ 10.45 Statement of disagreement. her delegee, or the General Counsel or

If a determination is made not to his or her delegee, as the case may be.
amend a record, the requester is in- Upon a determination that an appeal
formed of the right to file a concise will be denied, the requester is in-
statement setting forth the reasons for formed in writing of the reasons for the
disagreement with the refusal to determination, and the names and ti-
amend. In any disclosure containing in- tles or positions of each person respon-
formation about which an individual sible for the determination, and that
has filed such a statement of disagree- the determination may be appealed to
ment, the portions of the record which the District Court of the United States
are disputed are noted clearly and cop- in the district in which the complain-
ies of the statement of disagreement ant resides, or has his or her principal
provided. If the Administrator con- place of business, or in which the
cerned or his or her delegee, or in the records are located, or in the District
case of the Office of the Secretary, the of Columbia.
General Counsel or his or her delegee, (c) Each application for review must
deems it appropriate, copies of a con- be made in writing and must include
cise statement of the reasons for not all information and arguments relied
making the amendments requested upon by the person making the re-
may be provided along with the state- quest, and be submitted within 30 days
ment of disagreement. of the date of the initial denial; excep-
tions to this time period are permitted
Subpart F—Procedures for Recon- for good reason.
sidering Decisions Not To (d) Upon a determination that a re-
Grant Access to or Amend quest for the correction of a record will
Records be denied, the requester is informed
that he may file a concise statement in
§ 10.51 General. accordance with § 10.45.
(a) Each officer or employee of the (e) Each application for review must
Department who, upon a request by a indicate that it is an appeal from a de-
member of the public for a record nial of a request made under the Pri-
under this part, makes a determination vacy Act. The envelope in which the
that access is not to be granted or who application is sent should be marked
determines not to amend a record in a prominently with the words ‘‘Privacy
requested manner, gives a written Act.’’ If these requirements are not
statement of the reasons for that de- met, the time limits described in § 10.43
termination to the person making the do not begin to run until the applica-
request and indicates the name and tion has been identified by an employee
title or position of each person respon- of the Department as an application
sible for the denial of such request and under the Privacy Act and has been re-
the procedure for appeal within the De-
ceived by the appropriate office.
partment.
(b) Any person: (f) The Administrator concerned, or
(1) Who has been given a determina- the General Counsel, as the case may
tion pursuant to paragraph (a) of this be, may require the person making the
section, that access will not be grant- request to furnish additional informa-
ed; or tion, or proof of factual allegations,
(2) Who has been informed that an and may order other proceedings ap-
amendment to a requested record will propriate in the circumstances. The de-
not be made; may apply to the Admin- cision of the Administrator concerned,
istrator concerned, or in the case of the or the General Counsel, as the case
Office of the Secretary, to the General may be, as to the availability of the
Counsel for review of that decision. A record or whether to amend the record
determination that access will not be is administratively final.
granted or a record amended is not ad- (g) The decision by the Adminis-
ministratively final for the purposes of trator concerned, or the General Coun-
judicial review unless it was made by sel, as the case may be, not to disclose
the Administrator concerned or his or a record under this part is considered a
95
determination for the purposes of sec- (c) Any decision to exempt a system
tion 552a(g) of title 5, United States of records under this section is subject
Code, ‘‘Civil Remedies.’’ to concurrence by the General Counsel.
(h) Any final decision by an Adminis- (d) Any person may petition the Sec-
trator or his/her delegate not to grant retary in accordance with the provi-
access to or amend a record under this sions of part 5 of this title, to institute
part is subject to concurrence by the a rulemaking proceeding for the
General Counsel or his or her delegate. amendment or repeal of any exemp-
tions established under this section.
FR 23667, May 1, 1997] [45 FR 8993, Feb. 11, 1980, as amended at 58
FR 67697, Dec. 22, 1993; 73 FR 33329, June 12,
2008]
Subpart G—Exemptions
§ 10.63 Specific exemptions.
§ 10.61 General exemptions.
The Secretary or his or her delegee,
(a) The Assistant Secretary for Ad-
in the case of the Office of the Sec-
ministration, with regard to the Inves-
retary; or the Administrator or his or
tigations Division; and the Federal
delegee, in the case of an operating ad-
Aviation Administrator, with regard to
ministration; or the Inspector General
the FAA’s Investigative Record System
or his or her delegee, in the case of the
(DOT/FAA 815) may exempt from any
Office of Inspector General, may ex-
part of the Act and this part except
empt any system of records that is
subsections (b), (c)(1) and (2), (e)(4)(A)
maintained by the Office of the Sec-
through (F), (e)(6), (7), (9), (10), and (11),
retary, an operating administration, or
and (i) of the Act, and implementing
the Office of Inspector General, as the
§§ 10.35, 10.23(a) and (b), 10.21(d)(1) case may be, from subsections (c)(3),
through (6), 10.81, 10.83, and 10.85 of this (d), (e)(1), (e)(4)(G), (H), and (I), and (f)
chapter, any systems of records, or por- of the Act and implementing §§ 10.23(c);
tions thereof, which they maintain 10.35(b); 10.41; 10.43; 10.45; 10.21(a) and
which consist wholly of; 10.21(d)(6), (7), and (8) of this chapter,
(1) Information compiled for the pur- under the following conditions:
pose of identifying individual criminal (a) The system of records must con-
offenders and alleged offenders and sist of:
consisting only of identifying data and
(1) Records subject to the provisions
notations of arrests, the nature and of section 552(b)(1) of title 5, United
disposition of criminal charges, sen- States Code;
tencing, confinement, release, and pa-
(2) Investigatory material compiled
role and probation status;
for law enforcement purposes, other
(2) Information compiled for the pur- than material within the scope of
pose of a criminal investigation, in- § 10.61(a)(2): Provided, however, That if
cluding reports of informants and in- any individual is denied any right,
vestigators, and associated with an privilege, or benefit to which that indi-
identifiable individual; or vidual would otherwise be entitled by
(3) Reports identifiable to an indi- Federal law, or for which that indi-
vidual compiled at any stage of the vidual would otherwise be eligible, as a
process of enforcement of the criminal result of the maintenance of such ma-
laws from arrest or indictment through terial, such material is provided to
release from supervision. such individual, except to the extent
(b) The requirements (including gen- that the disclosure of such material
eral notice) of sections 553(b)(1), (2) and would reveal the identity of a source
(3), and (c) and (e) of title 5, United who furnished information to the Gov-
States Code, will be met by publication ernment under an express promise that
in appendix A to this part, which must, the identity of the source would be
at a minimum, specify: held in confidence, or, prior to Sep-
(1) The name of the system; and tember 27, 1975, the effective date of
(2) The specific provisions of the Act the Privacy Act of 1974, under an im-
from which the system is to be exempt- plied promise that the identity of the
ed and the reasons therefor. source would be held in confidence;
96
(3) Records maintained in connection (d) Any person may petition the Sec-
with providing protective services to retary in accordance with the provi-
the President of the United States or sions of 49 CFR part 5, to institute a
other individuals pursuant to section rulemaking for the amendment or re-
3056 of title 18, United States Code; peal of any exemptions established
(4) Records required by statute to be under this section.
maintained and used solely as statis- [45 FR 8993, Feb. 11, 1980, as amended at 62
tical records; FR 23667, May 1, 1997; 73 FR 33329, June 12,
(5) Investigatory material compiled 2008]
solely for the purpose of determining
suitability, eligibility, or qualifica- Subpart H—Fees
tions for Federal civilian employment,
military service, Federal contracts, or § 10.71 General.
access to classified information, but This subpart prescribes fees for serv-
only to the extent that the disclosure ices performed for the public under this
of such material would reveal the iden- part by the Department.
tity of a source who furnished informa-
tion to the Government under an ex- § 10.73 Payment of fees.
press promise that the identity of the The fees prescribed in this subpart
source would be held in confidence, or, may be paid by check, draft, or postal
prior to September 27, 1975, the effec- money order payable to the Treasury
tive date of the Privacy Act of 1974, of the United States.
under an implied promise that the
identity of the source would be held in § 10.75 Fee schedule.
confidence; (a) Copies of documents by photocopy or similar
method:
(6) Testing or examination material Each page not larger than 11 × 17 inches:
used solely to determine individual First page .................................................... $.25
qualifications for appointment or pro- Each page ................................................... .05
(b) Copies of documents by typewriter: Each page .. 2.00
motion in the Federal service the dis- (c) Certified copies of documents:
closure of which would compromise the (1) With Department of Transportation seal ....... 3.00
objectivity or fairness of the testing or (2) True copy, without seal ................................. 1.00
examination process; or (d) Photographs:
(1) Black and white print (from negative) ........... 1.25
(7) Evaluation material used to deter- (2) Black and white print (from print) ................. 3.15
mine potential for promotion in the (3) Color print (from negative) ............................ 3.50
armed services, but only to the extent (4) Color print (from print) .................................. 6.25
(e) Duplicate data tapes—each reel of tape or frac-
that the disclosure of such material tion thereof ............................................................. 36.00
would reveal the identity of a source
who furnished information to the Gov- The applicant must furnish the nec-
ernment under an express promise that essary number of blank magnetic
the identity of the source would be tapes. The tapes must be compatible
held in confidence, or, prior to the ef- for use in the supplier’s computer sys-
fective date of this section, under an tem, 1⁄2 inch wide and 2,400 feet long,
implied promise that the identity of and must be capable of recording data
the source would be held in confidence. at a density of 556 or 800 characters per
(b) The requirements (including gen- inch. Unless otherwise designated, the
eral notice) of sections 553 (b) (1), (2) tapes will be recorded at 556 CPI den-
and (3), and (c) and (e) of title 5, United sity. The Department of Transpor-
States Code, will be met by publication tation is not responsible for damaged
in appendix A to this part, which must, tape. However, if the applicant fur-
at a minimum, specify: nishes a replacement for a damaged
(1) The name of the systems; and tape, the duplication process is com-
(2) The specific provisions of the Act pleted at no additional charge.
(f) Microreproduction fees are as follows:
from which the system is to be exempt- (1) Microfilm copies, each 100 foot roll or less .. $3.75
ed and the reasons therefor. (2) Microfiche copies, each standard size sheet
(c) Any decision to exempt a system (4″ × 6″ containing up to 65 frames) .............. .15
of records under this section is subject (3) Apertune card to hard copy, each copy ....... .50
(4) 16mm microfilm to hard copy:

to the concurrence of the General First .............................................................. .25
Counsel. Additional ..................................................... .07
97
(g) Computerline printer output, each 1,000 lines or specific material is so prohibited, will-
fraction thereof ....................................................... 1.00
fully discloses the material in any
§ 10.77 Services performed without manner to any person or agency not
charge. entitled to receive it, is guilty of a
misdemeanor and fined not more than
(a) No fee is charged for time spent in
searching for records or reviewing or $5,000 in accordance with 5 U.S.C.
preparing correspondence related to 552a(i)(1).
records subject to this part.
§ 10.83 Improper maintenance of
(b) No fee is charged for documents records.
furnished in response to:
(1) A request from an employee or Any officer or employee of the De-
former employee of the Department for partment who willfully maintains a
copies of personnel records of the em- system of records without meeting the
ployee; notice requirements of § 10.21(d) of this
(2) A request from a Member of Con- part is guilty of a misdemeanor and
gress for official use; fined not more than $5,000 in accord-
(3) A request from a State, territory, ance with 5 U.S.C. 552a(i)(2).
U.S. possession, county or municipal
government, or an agency thereof; § 10.85 Wrongfully obtaining records.
(4) A request from a court that will
Any person who knowingly and will-
serve as a substitute for the personal
fully requests or obtains any record
court appearance of an officer or em-
concerning an individual from the De-
ployee of the Department;
(5) A request from a foreign govern- partment under false pretenses is
ment or an agency thereof, or an inter- guilty of a misdemeanor and fined not
national organization. more than $5,000 in accordance with 5
(c) Documents are furnished without U.S.C. 552a(i)(3).
charge or at a reduced charge, if the
Chief Information Officer or the Ad- APPENDIX A TO PART 10—EXEMPTIONS
ministrator concerned, as the case may Part I. General Exemptions
be, determines that waiver or reduc-
tion of the fee is in the public interest, Those portions of the following systems of
because furnishing the information can records that consist of (a) Information com-
piled for the purpose of identifying indi-
be considered as primarily benefiting
vidual criminal offenders and alleged offend-
the general public. ers and consisting only of identifying data
(d) When records are maintained in and notations of arrests, the nature and dis-
computer-readable form rather than position of criminal charges, sentencing,
human-readable form, one printed copy confinement, release, and parole and proba-
is made available which has been trans- tion status; (b) information compiled for the
lated to human-readable form without purpose of a criminal investigation, includ-
a charge for translation but in according reports of informants and investigators,
ance with § 10.75(g), regarding computer and associated with an identifiable indi-
line-printed charges. vidual; or (c) reports identifiable to an indi-
vidual compiled at any stage of the process
[45 FR 8993, Feb. 11, 1980, as amended at 73 of enforcement of the criminal laws from ar-
FR 33329, June 12, 2008; 75 FR 5244, Feb. 2, rest or indictment through release from su-
2010] pervision, are exempt from all parts of 5
U.S.C. 552a except subsections (b) (Condi-
Subpart I—Criminal Penalties tions of disclosure); (c) (1) and (2) (Account-
ing of certain disclosures); (e)(4) (A) through
§ 10.81 Improper disclosure. (F) (Publication of existence and character
of system); (e)(6) (Ensure records are accu-
Any officer or employee of the De- rate, relevant, timely, and complete before
partment who by virtue of his or her disclosure to person other than an agency
employment or official position, has and other than pursuant to a Freedom of In-
possession of, or access to, agency formation Act request), (7) (Restrict record-
records which contain individually keeping on First Amendment rights), (9)
identifiable information the disclosure
(Rules of conduct), (10) (Safeguards), and (11)

of which is prohibited by this part and (Routine use publication); and (i) (Criminal
who knowing that disclosure of the penalties):
98
Office of the Secretary of Transportation Pt. 10, App.
A. The Investigative Records System 4. From subsection (e)(2), because in a law
maintained by the Assistant Inspector Gen- enforcement investigation it is usually coun-
eral for Investigations, Office of the Inspec- terproductive to collect information to the
tor General, Office of the Secretary (DOT/ greatest extent practicable directly from the
OST 100). subject of the information. It is not always
B. Police Warrant Files and Central Files feasible to rely upon the subject of an inves-
maintained by the Federal Aviation Admin- tigation as a source for information that
istration (DOT/FAA 807). may implicate him/her in illegal activities.
C. The Investigative Records System main- In addition, collecting information directly
tained by the Federal Aviation Administra- from the subject could seriously compromise
tion regarding criminal investigations con- an investigation by prematurely revealing
ducted by offices of Investigations and Secu- its nature and scope, or could provide the
rity at headquarters and FAA Regional and subject with an opportunity to conceal
Center Security Divisions (DOT/FAA 815). criminal activities, or intimidate potential
D. General Investigations Record System, sources, in order to avoid apprehension.
maintained by the Office of Investigations 5. From subsection (e)(3), because pro-
and Security, Office of the Secretary (DOT/ viding such notice to the subject of an inves-
OST 016). tigation, or to other individual sources,
These exemptions are justified for the fol- could seriously compromise the investiga-
lowing reasons: tion by prematurely revealing its nature and
1. From subsection (c)(3), because making scope, or could inhibit cooperation, permit
available to a record subject the accounting the subject to evade apprehension, or cause
of disclosures from records concerning him/ interference with undercover activities.
her would reveal investigative interest by
not only DOT but also the recipient agency, Part II. Specific Exemptions
thereby permitting the record subject to A. The following systems of records are ex-
take appropriate measures to impede the in- empt from subsection (c)(3) (Accounting of
vestigation, as by destroying evidence, in- Certain Disclosures), (d) (Access to Records),
timidating potential witnesses, fleeing the (e)(4)(G), (H), and (I) (Agency Requirements),
area to avoid the thrust of the investigation, and (f) (Agency Rules) of 5 U.S.C. 552a, to the
etc. extent that they contain investigatory mate-
2. From subsections (d), (e)(4) (G) and (H), rial compiled for law enforcement purposes,
(f), and (g), because granting an individual in accordance 5 U.S.C. 552a(k)(2):
access to investigative records, and granting 1. Investigative Record System (DOT/FAA
him/her rights to amend/contest that infor- 815) maintained by the Federal Aviation Ad-
mation, interfere with the overall law en- ministration at the Office of Civil Aviation
forcement process by revealing a pending Security in Washington, DC; the FAA re-
sensitive investigation, possibly identify a gional Civil Aviation Security Divisions; the
confidential source, disclose information Civil Aviation Security Division at the Mike
that would constitute an unwarranted inva- Monroney Aeronautical Center in Oklahoma
sion of another individual’s personal privacy, City, Oklahoma; the FAA Civil Aviation Se-
reveal a sensitive investigative technique, or curity Staff at the FAA Technical Center in
constitute a potential danger to the health Atlantic City, New Jersey; and the various
or safety of law enforcement personnel. Federal Records Centers located throughout
3. From subsection (e)(1), because it is the country.
often impossible to determine relevancy or 2. FHWA Investigations Case File System,
necessity of information in the early stages maintained by the Office of Program Review
of an investigation. The value of such infor- and Investigations, Federal Highway Admin-
mation is a question of judgement and tim- istration (DOT/FHWA 214).
ing: what appears relevant and necessary 3. Federal Motor Carrier Safety Adminis-
when collected may ultimately be evaluated tration (FMCSA) Enforcement Management
and viewed as irrelevant and unnecessary to Information System, maintained by the
an investigation. In addition, DOT may ob- Chief Counsel, FMCSA (DOT/FMCSA 002).
tain information concerning the violation of 4. DOT/NHTSA Investigations of Alleged
laws other than those within the scope of its Misconduct or Conflict of Interest, main-
jurisdiction. In the interest of effective law tained by the Associate Administrator for
enforcement, DOT should retain this infor- Administration, National Highway Traffic
mation because it may aid in establishing Safety Administration (DOT/NHTSA 458).
patterns of unlawful activity and provide 5. Civil Aviation Security System (DOT/
leads for other law enforcement agencies. FAA 813), maintained by the Office of Civil
Further, in obtaining evidence during an in- Aviation Security Policy and Planning, Fed-
vestigation, information may be provided to eral Aviation Administration.
DOT that relates to matters incidental to 6. Suspected Unapproved Parts (SUP) Pro-
the main purpose of the investigation but gram, maintained by the Federal Aviation
that may be pertinent to the investigative Administration (DOT/FAA 852).

jurisdiction of another agency. Such infor- 7. Motor Carrier Management Information
mation cannot readily be identified. System (MCMIS), maintained by the Federal
99
Pt. 10, App. 49 CFR Subtitle A (10–1–19 Edition)
Motor Carrier Safety Administration (DOT/ 2. From subsection (d), because granting an
FMCSA 001). individual access to investigative records
8. Suspicious Activity Reporting (SAR) could interfere with the overall law enforce-
database, maintained by the Office of Intel- ment process by revealing a pending sen-
ligence, Security, and Emergency Response, sitive investigation, possibly identify a con-
Office of the Secretary. fidential source, disclose information that
9. Departmental Office of Civil Rights Sys- would constitute an unwarranted invasion of
tem (DOCRS). another individual’s personal privacy, reveal
10. Insider Threat Program (DOT/ALL 26). a sensitive investigative technique, or con-
These exemptions are justified for the fol- stitute a potential danger to the health or
lowing reasons: safety of law enforcement personnel.
1. From subsection (c)(3), because making C. The system of records known as the
available to a record subject the accounting Alaska Railroad Examination of Operating
of disclosures from records concerning him/ Personnel, maintained by the Alaska Rail-
her would reveal investigative interest by road, Federal Railroad Administration (DOT/
not only DOT but also the recipient agency, FRA 100), is exempt from the provisions of
thereby permitting the record subject to subsection (d) of 5 U.S.C. 552a. The release of
take appropriate measures to impede the in- these records would compromise their value
vestigation, as by destroying evidence, in- as impartial measurement standards for ap-
timidating potential witnesses, fleeing the pointment and promotion within the Federal
area to avoid the thrust of the investigation, Service.
etc. D. Those portions of the following systems
2. From subsections (d), (e)(4)(G), (H), and of records consisting of investigatory mate-
(I), and (f), because granting an individual rial compiled for the purpose of determining
access to investigative records, and granting suitability, eligibility, or qualifications for
him/her access to investigative records with Federal civilian employment, military serv-
that information, could interfere with the ice, or access to classified information or
overall law enforcement process by revealing used to determine potential for promotion in
a pending sensitive investigation, possibly the armed services, are exempt from sections
identify a confidential source, disclose infor- (c)(3) (Accounting of Certain Disclosures), (d)
mation that would constitute an unwar- (Access to Records), (e)(4) (G), (H), and (I)
ranted invasion of another individual’s per- (Agency Requirements), and (f) (Agency
sonal privacy, reveal a sensitive investiga- Rules) of 5 U.S.C. 552a to the extent that dis-
tive technique, or constitute a potential dan- closure of such material would reveal the
ger to the health or safety of law enforce- identity of a source who provided informa-
ment personnel. tion to the Government under an express or,
B. The following systems of records are ex- prior to September 27, 1975, an implied prom-
empt from subsections (c)(3) (Accounting of ise of confidentiality (5 U.S.C. 552a(k) (5) and
Certain Disclosures) and (d) (Access to (7)):
Records) of 5 U.S.C. 552a, in accordance with 1. Investigative Records System, main-
5 U.S.C. 552a(k)(2): tained by the Assistant Inspector General for
1. General Air Transportation Records on Investigations in the Office of the Inspector
Individuals, maintained by various offices in General (DOT/OST 100).
the Federal Aviation Administration (DOT/ 2. Investigative Record System, main-
FAA 847). tained by the Federal Aviation Administra-
2. Investigative Records System, main- tion at FAA Regional and Center Air Trans-
tained by the Assistant Inspector General for portation Security Divisions; the Investiga-
Investigations in the Office of the Inspector tions and Security Division, Aeronautical
General (DOT/OST 100). Center; and Office of Investigations and Se-
3. General Investigations Record System, curity, Headquarters, Washington, D.C.
maintained by the Office of Investigations (DOT/FAA 815).
and Security, Office of the Secretary (DOT/ 3. Files pursuant to suitability for employ-
OST 016). ment with National Highway Traffic Safety
4. Insider Threat Program (DOT/ALL 26). Administration (DOT/NHTSA–457) con-
These exemptions are justified for the fol- taining confidential investigatory reports.
lowing reasons: 4. Personnel Security Records System,
1. From subsection (c)(3), because making maintained by the Office of Investigations
available to a record subject the accounting and Security, Office of the Secretary (DOT/
of disclosures from records concerning him/ OST 035).
her would reveal investigative interest by The purpose of these exemptions is to pre-
not only DOT but also the recipient agency, vent disclosure of the identities of sources
thereby permitting the record subject to who provide information to the government
take appropriate measures to impede the in- concerning the suitability, eligibility, or
vestigation, as by destroying evidence, in- qualifications of individuals for Federal ci-
timidating potential witnesses, fleeing the vilian employment, contracts, access to clas-
area to avoid the thrust of the investigation, sified information, or appointment or pro-
etc. motion in the armed services, and who are
100
expressly or, prior to September 27, 1975, im- Atlantic City, New Jersey; and the various
plied promised confidentiality (5 U.S.C. Federal Records Centers located throughout
552a(k) (5) and (7)). the country.
E. Those portions of the following systems 2. Insider Threat Program (DOT/ALL 26).
of records consisting of testing or examina- The purpose of these exemptions is to pre-
tion material used solely to determine indi- vent the disclosure of material authorized to
vidual qualifications for appointment or pro- be kept secret in the interest of national de-
motion in the Federal Service are exempt fense or foreign policy, in accordance with 5
from subsections (c)(3) (Accounting of Cer- U.S.C. 552(b)(1) and 552a(k)(1).
tain Disclosures), (d) (Access to Records),
(e)(4) (G), (H) and (I) (Agency Requirements), [45 FR 8993, Feb. 11, 1980, as amended at 58
and (f) (Agency Rules) of 5 U.S.C. 552a: FR 67697, Dec. 22, 1993; 59 FR 13662, Mar. 23,
1. Reference Files (DOT/NHTSA 457), main- 1994; 60 FR 43983, Aug. 24, 1995. Redesignated
tained by the National Highway Traffic Safe- at 62 FR 23667, May 1, 1997, as amended at 63
ty Administration personnel offices to deter- FR 2172, Jan. 14, 1998; 63 FR 4197, Jan. 28,
mine fitness for employment prior to hiring. 1998; 66 FR 20407, Apr. 23, 2001; 73 FR 33329,
The purpose of these exemptions is to pre- June 12, 2008; 75 FR 5244, Feb. 2, 2010; 76 FR
serve the value of these records as impartial 79114, Dec. 21, 2011; 77 FR 19944, Apr. 3, 2012;
measurement standards for appointment and 84 FR 23729, May 23, 2019]
promotion within the Federal service.
F. Those portions of the following systems PART 11—PROTECTION OF HUMAN
of records which consist of information prop-
erly classified in the interest of national de- SUBJECTS
fense or foreign policy in accordance with 5
U.S.C. 552(b)(1) are exempt from sections Sec.
(c)(3) (Accounting of Certain Disclosures), (d) 11.101 To what does this policy apply?
(Access to Records), (e)(4) (G), (H) and (I) 11.102 Definitions for purposes of this pol-
(Agency Requirements), and (f) (Agency icy.
Rules) of 5 U.S.C. 552a: 11.103 Assuring compliance with this pol-
1. Investigative Record System maintained icy—research conducted or supported by
by the Assistant Inspector General for Inves- any Federal department or agency.
tigations in the Office of the Inspector Gen- 11.104 Exempt research.
eral (DOT/OST 100). 11.105 [Reserved]
2. Personnel Security Records System, 11.106 [Reserved]
maintained by the Office of Investigations 11.107 IRB membership.
and Security, Office of the Secretary (DOT/ 11.108 IRB functions and operations.
OST 035). 11.109 IRB review of research.
3. Civil Aviation Security System (DOT/ 11.110 Expedited review procedures for cer-
FAA 813), maintained by the Office of Civil tain kinds of research involving no more
Aviation Security, Federal Aviation Admin- than minimal risk, and for minor
istration. changes in approved research.
4. General Investigations Record System, 11.111 Criteria for IRB approval of research.
maintained by the Office of Investigations 11.112 Review by institution.
and Security, Office of the Secretary (DOT/ 11.113 Suspension or termination of IRB ap-
OST 016). proval of research.
5. Insider Threat Program (DOT/ALL 26). 11.114 Cooperative research.
The purpose of these exemptions is to pre- 11.115 IRB records.
vent the disclosure of material authorized to 11.116 General requirements for informed
be kept secret in the interest of national de- consent.
fense or foreign policy, in accordance with 5 11.117 Documentation of informed consent.
U.S.C. 552(b)(1) and 552a(k)(1). 11.118 Applications and proposals lacking
G. Those portions of the following systems definite plans for involvement of human
of records which consist of information prop- subjects.
erly classified in the interest of national de- 11.119 Research undertaken without the in-
fense or foreign policy in accordance with 5 tention of involving human subjects.
U.S.C. 552a(b)(1) are exempt from subsections 11.120 Evaluation and disposition of applica-
(c)(3) (Accounting of Certain Disclosures) tions and proposals for research to be
and (d) (Access to Records) of 5 U.S.C. 552a: conducted or supported by a Federal de-
1. Investigative Record System (DOT/FAA partment or agency.
815) maintained by the Federal Aviation Ad-
11.121 [Reserved]
ministration at the Office of Civil Aviation
11.122 Use of Federal funds.
Security in Washington, DC; the FAA re-
11.123 Early termination of research sup-
gional Civil Aviation Security Divisions; the
port: Evaluation of applications and pro-
Civil Aviation Security Division at the Mike
posals.
Monroney Aeronautical Center in Oklahoma

11.124 Conditions.
City, Oklahoma; the FAA Civil Aviation Se-
curity Staff at the FAA Technical Center in AUTHORITY: 5 U.S.C. 301; 42 U.S.C. 300v–1(b).
101
SOURCE: 82 FR 7274, Jan. 19, 2017, unless erwise be applicable and that provide
otherwise noted. additional protections for human sub-
jects.
§ 11.101 To what does this policy
apply? (g) This policy does not affect any
foreign laws or regulations that may
(a) Except as detailed in § 11.104, this
otherwise be applicable and that pro-
policy applies to all research involving
human subjects conducted, supported, vide additional protections to human
or otherwise subject to regulation by subjects of research.
any Federal department or agency that (h) When research covered by this
takes appropriate administrative ac- policy takes place in foreign countries,
tion to make the policy applicable to procedures normally followed in the
such research. This includes research foreign countries to protect human
conducted by Federal civilian employ- subjects may differ from those set
ees or military personnel, except that forth in this policy. In these cir-
each department or agency head may cumstances, if a department or agency
adopt such procedural modifications as head determines that the procedures
may be appropriate from an adminis- prescribed by the institution afford
trative standpoint. It also includes re- protections that are at least equivalent
search conducted, supported, or other- to those provided in this policy, the de-
wise subject to regulation by the Fed- partment or agency head may approve
eral Government outside the United the substitution of the foreign proce-
States. Institutions that are engaged dures in lieu of the procedural require-
in research described in this paragraph ments provided in this policy. Except
and institutional review boards (IRBs) when otherwise required by statute,
reviewing research that is subject to Executive Order, or the department or
this policy must comply with this pol-
agency head, notices of these actions
icy.
as they occur will be published in the
(b) [Reserved]
(c) Department or agency heads re- FEDERAL REGISTER or will be otherwise
tain final judgment as to whether a published as provided in department or
particular activity is covered by this agency procedures.
policy and this judgment shall be exer- (i) Unless otherwise required by law,
cised consistent with the ethical prin- department or agency heads may waive
ciples of the Belmont Report.62 the applicability of some or all of the
(d) Department or agency heads may provisions of this policy to specific re-
require that specific research activities search activities or classes of research
or classes of research activities con- activities otherwise covered by this
ducted, supported, or otherwise subject policy, provided the alternative proce-
to regulation by the Federal depart- dures to be followed are consistent
ment or agency but not otherwise cov- with the principles of the Belmont Re-
ered by this policy comply with some port.63 Except when otherwise required
or all of the requirements of this pol- by statute or Executive Order, the de-
icy. partment or agency head shall forward
(e) Compliance with this policy re- advance notices of these actions to the
quires compliance with pertinent fed- Office for Human Research Protec-
eral laws or regulations that provide tions, Department of Health and
additional protections for human sub- Human Services (HHS), or any suc-
jects. cessor office, or to the equivalent office
(f) This policy does not affect any within the appropriate Federal depart-
state or local laws or regulations (in- ment or agency, and shall also publish
cluding tribal law passed by the official them in the FEDERAL REGISTER or in
governing body of an American Indian such other manner as provided in de-
or Alaska Native tribe) that may oth- partment or agency procedures. The
waiver notice must include a state-
62 The National Commission for the Protec-
ment that identifies the conditions
tion of Human Subjects of Biomedical and under which the waiver will be applied
Behavioral Research.– Belmont Report.

Washington, DC: U.S. Department of Health
and Human Services. 1979. 63 Id.
102
and a justification as to why the waiv- (i) If the determination to transition

er is appropriate for the research, in- is documented between July 19, 2018,
cluding how the decision is consistent and January 20, 2019, the research
with the principles of the Belmont Re- shall:
port. (A) Beginning on the date of such
(j) Federal guidance on the require- documentation through January 20,
ments of this policy shall be issued 2019, comply with the pre-2018 Require-
only after consultation, for the purpose ments, except that the research shall
of harmonization (to the extent appro- comply with the following:
priate), with other Federal depart- (1) Section 11.102(l) of the 2018 Re-
ments and agencies that have adopted quirements (definition of research) (in-
this policy, unless such consultation is stead of § 11.102(d) of the pre-2018 Re-
not feasible. quirements);
(k) [Reserved] (2) Section 11.103(d) of the 2018 Re-
(l) Compliance dates and transition quirements (revised certification re-
provisions: quirement that eliminates IRB review
(1) Pre-2018 Requirements. For pur- of application or proposal) (instead of
poses of this section, the pre-2018 Re- § 11.103(f) of the pre-2018 Requirements);
quirements means this subpart as pub-
and
lished in the 2016 edition of the Code of
Federal Regulations. (3) Section 11.109(f)(1)(i) and (iii) of
the 2018 Requirements (exceptions to
(2) 2018 Requirements. For purposes of
this section, the 2018 Requirements mandated continuing review) (instead
means the Federal Policy for the Pro- of § 11.103(b), as related to the require-
tection of Human Subjects requirement for continuing review, and in ad-
ments contained in this part. The gen- dition to § 11.109, of the pre-2018 Re-
eral compliance date for the 2018 Re- quirements); and
quirements is January 21, 2019. The (B) Beginning on January 21, 2019,
compliance date for § 11.114(b) (coopera- comply with the 2018 Requirements.
tive research) of the 2018 Requirements (ii) If the determination to transition
is January 20, 2020. is documented on or after January 21,
(3) Research subject to pre-2018 require- 2019, the research shall, beginning on
ments. The pre-2018 Requirements shall the date of such documentation, com-
apply to the following research, unless ply with the 2018 Requirements.
the research is transitioning to comply (5) Research subject to 2018 Require-
with the 2018 Requirements in accord- ments. The 2018 Requirements shall
ance with paragraph (l)(4) of this sec- apply to the following research:
tion: (i) Research initially approved by an
(i) Research initially approved by an IRB on or after January 21, 2019;
IRB under the pre-2018 Requirements (ii) Research for which IRB review is
before January 21, 2019; waived pursuant to paragraph (i) of
(ii) Research for which IRB review this section on or after January 21,
was waived pursuant to § 11.101(i) of the 2019; and
pre-2018 Requirements before January
(iii) Research for which a determina-
21, 2019; and
tion is made that the research is ex-
(iii) Research for which a determina-
empt on or after January 21, 2019.
tion was made that the research was
exempt under § 11.101(b) of the pre-2018 (m) Severability: Any provision of
Requirements before January 21, 2019. this part held to be invalid or unen-
(4) Transitioning research. If, on or forceable by its terms, or as applied to
after July 19, 2018, an institution plan- any person or circumstance, shall be
ning or engaged in research otherwise construed so as to continue to give
covered by paragraph (l)(3) of this sec- maximum effect to the provision per-
tion determines that such research in- mitted by law, unless such holding
stead will transition to comply with shall be one of utter invalidity or unen-
the 2018 Requirements, the institution forceability, in which event the provi-
or an IRB must document and date sion shall be severable from this part
such determination. and shall not affect the remainder
103
thereof or the application of the provi- (2) Intervention includes both physical
sion to other persons not similarly sit- procedures by which information or
uated or to other dissimilar cir- biospecimens are gathered (e.g.,
cumstances. venipuncture) and manipulations of the
[82 FR 7274, Jan. 19, 2017, as amended at 83 subject or the subject’s environment
FR 2894, Jan. 22, 2018; 83 FR 28519, June 19, that are performed for research pur-
2018] poses.
(3) Interaction includes communica-
§ 11.102 Definitions for purposes of
this policy. tion or interpersonal contact between
investigator and subject.
(a) Certification means the official no- (4) Private information includes infor-
tification by the institution to the sup-
mation about behavior that occurs in a
porting Federal department or agency
context in which an individual can rea-
component, in accordance with the re-
quirements of this policy, that a re- sonably expect that no observation or
search project or activity involving recording is taking place, and informa-
human subjects has been reviewed and tion that has been provided for specific
approved by an IRB in accordance with purposes by an individual and that the
an approved assurance. individual can reasonably expect will
(b) Clinical trial means a research not be made public (e.g., a medical
study in which one or more human sub- record).
jects are prospectively assigned to one (5) Identifiable private information is
or more interventions (which may in- private information for which the iden-
clude placebo or other control) to tity of the subject is or may readily be
evaluate the effects of the interven- ascertained by the investigator or asso-
tions on biomedical or behavioral ciated with the information.
health-related outcomes. (6) An identifiable biospecimen is a bio-
(c) Department or agency head means specimen for which the identity of the
the head of any Federal department or subject is or may readily be
agency, for example, the Secretary of ascertained by the investigator or asso-
HHS, and any other officer or employee ciated with the biospecimen.
of any Federal department or agency
(7) Federal departments or agencies
to whom the authority provided by
implementing this policy shall:
these regulations to the department or
agency head has been delegated. (i) Upon consultation with appro-
(d) Federal department or agency refers priate experts (including experts in
to a federal department or agency (the data matching and re-identification),
department or agency itself rather reexamine the meaning of ‘‘identifiable
than its bureaus, offices or divisions) private information,’’ as defined in
that takes appropriate administrative paragraph (e)(5) of this section, and
action to make this policy applicable ‘‘identifiable biospecimen,’’ as defined
to the research involving human sub- in paragraph (e)(6) of this section. This
jects it conducts, supports, or other- reexamination shall take place within
wise regulates (e.g., the U.S. Depart- 1 year and regularly thereafter (at
ment of Health and Human Services, least every 4 years). This process will
the U.S. Department of Defense, or the be conducted by collaboration among
Central Intelligence Agency). the Federal departments and agencies
(e)(1) Human subject means a living implementing this policy. If appro-
individual about whom an investigator priate and permitted by law, such Fed-
(whether professional or student) con- eral departments and agencies may
ducting research: alter the interpretation of these terms,
(i) Obtains information or biospeci- including through the use of guidance.
mens through intervention or inter-
(ii) Upon consultation with appro-
action with the individual, and uses,
studies, or analyzes the information or priate experts, assess whether there are
biospecimens; or (ii) Obtains, uses, analytic technologies or techniques
studies, analyzes, or generates identifi- that should be considered by investiga-
able private information or identifiable tors to generate ‘‘identifiable private

biospecimens. information,’’ as defined in paragraph
104
(e)(5) of this section, or an ‘‘identifi- subdivision of a state or territory, an

able biospecimen,’’ as defined in para- Indian tribe, or a foreign government,
graph (e)(6) of this section. This assess- or a person or entity acting under a
ment shall take place within 1 year and grant of authority from or contract
regularly thereafter (at least every 4 with such public agency, including the
years). This process will be conducted employees or agents of such public
by collaboration among the Federal de- agency or its contractors or persons or
partments and agencies implementing entities to whom it has granted au-
this policy. Any such technologies or thority, that is responsible for public
techniques will be included on a list of health matters as part of its official
technologies or techniques that mandate.
produce identifiable private informa- (l) Research means a systematic in-
tion or identifiable biospecimens. This vestigation, including research devel-
list will be published in the FEDERAL opment, testing, and evaluation, de-
REGISTER after notice and an oppor- signed to develop or contribute to gen-
tunity for public comment. The Sec- eralizable knowledge. Activities that
retary, HHS, shall maintain the list on meet this definition constitute re-
a publicly accessible Web site. search for purposes of this policy,
(f) Institution means any public or whether or not they are conducted or
private entity, or department or agen- supported under a program that is con-
cy (including federal, state, and other sidered research for other purposes.
agencies). For example, some demonstration and
(g) IRB means an institutional review service programs may include research
board established in accord with and activities. For purposes of this part,
for the purposes expressed in this pol- the following activities are deemed not
icy. to be research:
(h) IRB approval means the deter- (1) Scholarly and journalistic activi-
mination of the IRB that the research ties (e.g., oral history, journalism, bi-
has been reviewed and may be con- ography, literary criticism, legal re-
ducted at an institution within the search, and historical scholarship), in-
constraints set forth by the IRB and by cluding the collection and use of infor-
other institutional and federal require- mation, that focus directly on the spe-
ments. cific individuals about whom the infor-
(i) Legally authorized representative mation is collected.
means an individual or judicial or (2) Public health surveillance activi-
other body authorized under applicable ties, including the collection and test-
law to consent on behalf of a prospec- ing of information or biospecimens,
tive subject to the subject’s participa- conducted, supported, requested, or-
tion in the procedure(s) involved in the dered, required, or authorized by a pub-
research. If there is no applicable law lic health authority. Such activities
addressing this issue, legally authorized are limited to those necessary to allow
representative means an individual rec- a public health authority to identify,
ognized by institutional policy as ac- monitor, assess, or investigate poten-
ceptable for providing consent in the tial public health signals, onsets of dis-
nonresearch context on behalf of the ease outbreaks, or conditions of public
prospective subject to the subject’s health importance (including trends,
participation in the procedure(s) in- signals, risk factors, patterns in dis-
volved in the research. eases, or increases in injuries from
(j) Minimal risk means that the prob- using consumer products). Such activi-
ability and magnitude of harm or dis- ties include those associated with pro-
comfort anticipated in the research are viding timely situational awareness
not greater in and of themselves than and priority setting during the course
those ordinarily encountered in daily of an event or crisis that threatens
life or during the performance of rou- public health (including natural or
tine physical or psychological exami- man-made disasters).
nations or tests. (3) Collection and analysis of infor-
(k) Public health authority means an mation, biospecimens, or records by or
agency or authority of the United for a criminal justice agency for activi-
States, a state, a territory, a political ties authorized by law or court order
105
solely for criminal justice or criminal in such form and manner as the depart-
investigative purposes. ment or agency head prescribes.
(4) Authorized operational activities (c) The department or agency head
(as determined by each agency) in sup- may limit the period during which any
port of intelligence, homeland secu- assurance shall remain effective or
rity, defense, or other national secu- otherwise condition or restrict the as-
rity missions. surance.
(m) Written, or in writing, for purposes (d) Certification is required when the
of this part, refers to writing on a tan- research is supported by a Federal de-
gible medium (e.g., paper) or in an elec- partment or agency and not otherwise
tronic format. waived under § 11.101(i) or exempted
under § 11.104. For such research, insti-
§ 11.103 Assuring compliance with this tutions shall certify that each proposed
policy—research conducted or sup- research study covered by the assur-
ported by any Federal department ance and this section has been reviewed
or agency. and approved by the IRB. Such certifi-
(a) Each institution engaged in re- cation must be submitted as prescribed
search that is covered by this policy, by the Federal department or agency
with the exception of research eligible component supporting the research.
for exemption under § 11.104, and that is Under no condition shall research cov-
conducted or supported by a Federal ered by this section be initiated prior
department or agency, shall provide to receipt of the certification that the
written assurance satisfactory to the research has been reviewed and ap-
department or agency head that it will proved by the IRB.
comply with the requirements of this (e) For nonexempt research involving
policy. In lieu of requiring submission human subjects covered by this policy
of an assurance, individual department (or exempt research for which limited
or agency heads shall accept the exist- IRB review takes place pursuant to
ence of a current assurance, appro- § 11.104(d)(2)(iii), (d)(3)(i)(C), or (d)(7) or
priate for the research in question, on (8)) that takes place at an institution
file with the Office for Human Re- in which IRB oversight is conducted by
search Protections, HHS, or any suc- an IRB that is not operated by the in-
cessor office, and approved for Federal- stitution, the institution and the orga-
wide use by that office. When the exist- nization operating the IRB shall docu-
ence of an HHS-approved assurance is ment the institution’s reliance on the
accepted in lieu of requiring submis- IRB for oversight of the research and
sion of an assurance, reports (except the responsibilities that each entity
certification) required by this policy to will undertake to ensure compliance
be made to department and agency with the requirements of this policy
heads shall also be made to the Office (e.g., in a written agreement between
for Human Research Protections, HHS, the institution and the IRB, by imple-
mentation of an institution-wide policy
or any successor office. Federal depart-
directive providing the allocation of re-
ments and agencies will conduct or
sponsibilities between the institution
support research covered by this policy
and an IRB that is not affiliated with
only if the institution has provided an
the institution, or as set forth in a re-
assurance that it will comply with the
search protocol).
requirements of this policy, as provided
in this section, and only if the institu- (Approved by the Office of Management and
tion has certified to the department or Budget under Control Number 0990–0260)
agency head that the research has been
reviewed and approved by an IRB (if § 11.104 Exempt research.
such certification is required by (a) Unless otherwise required by law
§ 11.103(d)). or by department or agency heads, re-
(b) The assurance shall be executed search activities in which the only in-
by an individual authorized to act for volvement of human subjects will be in
the institution and to assume on behalf one or more of the categories in para-
of the institution the obligations im- graph (d) of this section are exempt
posed by this policy and shall be filed from the requirements of this policy,
106
except that such activities must com- ditory recording) if at least one of the
ply with the requirements of this sec- following criteria is met:
tion and as specified in each category. (i) The information obtained is re-
(b) Use of the exemption categories corded by the investigator in such a
for research subject to the require- manner that the identity of the human
ments of subparts B, C, and D: Applica- subjects cannot readily be ascertained,
tion of the exemption categories to re- directly or through identifiers linked
search subject to the requirements of to the subjects;
45 CFR part 46, subparts B, C, and D, is (ii) Any disclosure of the human sub-
as follows: jects’ responses outside the research
(1) Subpart B. Each of the exemptions would not reasonably place the sub-
at this section may be applied to rejects at risk of criminal or civil liabil-
search subject to subpart B if the con- ity or be damaging to the subjects’ fi-
ditions of the exemption are met. nancial standing, employability, edu-
(2) Subpart C. The exemptions at this cational advancement, or reputation;
section do not apply to research sub- or
ject to subpart C, except for research (iii) The information obtained is re-
aimed at involving a broader subject corded by the investigator in such a
population that only incidentally in- manner that the identity of the human
cludes prisoners. subjects can readily be ascertained, di-
(3) Subpart D. The exemptions at rectly or through identifiers linked to
paragraphs (d)(1), (4), (5), (6), (7), and (8) the subjects, and an IRB conducts a
of this section may be applied to re- limited IRB review to make the deter-
search subject to subpart D if the con- mination required by § 11.111(a)(7).
ditions of the exemption are met. Para- (3)(i) Research involving benign be-
graphs (d)(2)(i) and (ii) of this section havioral interventions in conjunction
only may apply to research subject to with the collection of information from
subpart D involving educational tests an adult subject through verbal or
or the observation of public behavior written responses (including data
when the investigator(s) do not partici- entry) or audiovisual recording if the
pate in the activities being observed. subject prospectively agrees to the
Paragraph (d)(2)(iii) of this section intervention and information collec-
may not be applied to research subject tion and at least one of the following
to subpart D. criteria is met:
(c) [Reserved] (A) The information obtained is re-
(d) Except as described in paragraph corded by the investigator in such a
(a) of this section, the following cat- manner that the identity of the human
egories of human subjects research are subjects cannot readily be ascertained,
exempt from this policy: directly or through identifiers linked
(1) Research, conducted in estab- to the subjects;
lished or commonly accepted edu- (B) Any disclosure of the human sub-
cational settings, that specifically in- jects’ responses outside the research
volves normal educational practices would not reasonably place the sub-
that are not likely to adversely impact jects at risk of criminal or civil liabil-
students’ opportunity to learn required ity or be damaging to the subjects’ fi-
educational content or the assessment nancial standing, employability, edu-
of educators who provide instruction. cational advancement, or reputation;
This includes most research on regular or
and special education instructional (C) The information obtained is re-
strategies, and research on the effec- corded by the investigator in such a
tiveness of or the comparison among manner that the identity of the human
instructional techniques, curricula, or subjects can readily be ascertained, di-
classroom management methods. rectly or through identifiers linked to
(2) Research that only includes inter- the subjects, and an IRB conducts a
actions involving educational tests limited IRB review to make the deter-
(cognitive, diagnostic, aptitude, mination required by § 11.111(a)(7).
achievement), survey procedures, (ii) For the purpose of this provision,
interview procedures, or observation of benign behavioral interventions are

public behavior (including visual or au- brief in duration, harmless, painless,
107
not physically invasive, not likely to research generates identifiable private

have a significant adverse lasting im- information that is or will be main-
pact on the subjects, and the investi- tained on information technology that
gator has no reason to think the sub- is subject to and in compliance with
jects will find the interventions offen- section 208(b) of the E-Government Act
sive or embarrassing. Provided all such of 2002, 44 U.S.C. 3501 note, if all of the
criteria are met, examples of such be- identifiable private information col-
nign behavioral interventions would in- lected, used, or generated as part of the
clude having the subjects play an on- activity will be maintained in systems
line game, having them solve puzzles of records subject to the Privacy Act of
under various noise conditions, or hav- 1974, 5 U.S.C. 552a, and, if applicable,
ing them decide how to allocate a the information used in the research
nominal amount of received cash be- was collected subject to the Paperwork
tween themselves and someone else. Reduction Act of 1995, 44 U.S.C. 3501 et
(iii) If the research involves deceiv- seq.
ing the subjects regarding the nature (5) Research and demonstration
or purposes of the research, this ex- projects that are conducted or sup-
emption is not applicable unless the ported by a Federal department or
subject authorizes the deception agency, or otherwise subject to the ap-
through a prospective agreement to proval of department or agency heads
participate in research in cir- (or the approval of the heads of bureaus
cumstances in which the subject is in- or other subordinate agencies that
formed that he or she will be unaware
have been delegated authority to con-
of or misled regarding the nature or
duct the research and demonstration
purposes of the research.
projects), and that are designed to
(4) Secondary research for which con-
study, evaluate, improve, or otherwise
sent is not required: Secondary re-
examine public benefit or service pro-
search uses of identifiable private in-
grams, including procedures for obtain-
formation or identifiable biospecimens,
ing benefits or services under those
if at least one of the following criteria
programs, possible changes in or alter-
is met:
natives to those programs or proce-
(i) The identifiable private informa-
tion or identifiable biospecimens are dures, or possible changes in methods
publicly available; or levels of payment for benefits or
(ii) Information, which may include services under those programs. Such
information about biospecimens, is re- projects include, but are not limited to,
corded by the investigator in such a internal studies by Federal employees,
manner that the identity of the human and studies under contracts or con-
subjects cannot readily be ascertained sulting arrangements, cooperative
directly or through identifiers linked agreements, or grants. Exempt projects
to the subjects, the investigator does also include waivers of otherwise man-
not contact the subjects, and the inves- datory requirements using authorities
tigator will not re-identify subjects; such as sections 1115 and 1115A of the
(iii) The research involves only infor- Social Security Act, as amended.
mation collection and analysis involv- (i) Each Federal department or agen-
ing the investigator’s use of identifi- cy conducting or supporting the re-
able health information when that use search and demonstration projects
is regulated under 45 CFR parts 160 and must establish, on a publicly accessible
164, subparts A and E, for the purposes Federal Web site or in such other man-
of ‘‘health care operations’’ or ‘‘re- ner as the department or agency head
search’’ as those terms are defined at may determine, a list of the research
45 CFR 164.501 or for ‘‘public health ac- and demonstration projects that the
tivities and purposes’’ as described Federal department or agency conducts
under 45 CFR 164.512(b); or or supports under this provision. The
(iv) The research is conducted by, or research or demonstration project
on behalf of, a Federal department or must be published on this list prior to
agency using government-generated or commencing the research involving
government-collected information ob- human subjects.

tained for nonresearch activities, if the (ii) [Reserved]
108
(6) Taste and food quality evaluation §§ 11.105–11.106 [Reserved]

and consumer acceptance studies:
(i) If wholesome foods without addi- § 11.107 IRB membership.
tives are consumed, or (a) Each IRB shall have at least five
(ii) If a food is consumed that con- members, with varying backgrounds to
tains a food ingredient at or below the promote complete and adequate review
level and for a use found to be safe, or of research activities commonly con-
agricultural chemical or environ- ducted by the institution. The IRB
mental contaminant at or below the shall be sufficiently qualified through
level found to be safe, by the Food and the experience and expertise of its
Drug Administration or approved by members (professional competence),
and the diversity of its members, in-
the Environmental Protection Agency
cluding race, gender, and cultural
or the Food Safety and Inspection
backgrounds and sensitivity to such
Service of the U.S. Department of Agri- issues as community attitudes, to pro-
culture. mote respect for its advice and counsel
(7) Storage or maintenance for sec- in safeguarding the rights and welfare
ondary research for which broad con- of human subjects. The IRB shall be
sent is required: Storage or mainte- able to ascertain the acceptability of
nance of identifiable private informa- proposed research in terms of institu-
tion or identifiable biospecimens for tional commitments (including policies
potential secondary research use if an and resources) and regulations, appli-
IRB conducts a limited IRB review and cable law, and standards of professional
makes the determinations required by conduct and practice. The IRB shall
§ 11.111(a)(8). therefore include persons knowledge-
(8) Secondary research for which able in these areas. If an IRB regularly
broad consent is required: Research in- reviews research that involves a cat-
volving the use of identifiable private egory of subjects that is vulnerable to
information or identifiable biospeci- coercion or undue influence, such as
mens for secondary research use, if the children, prisoners, individuals with
following criteria are met: impaired decision-making capacity, or
economically or educationally dis-
(i) Broad consent for the storage,
advantaged persons, consideration
maintenance, and secondary research
shall be given to the inclusion of one or
use of the identifiable private informa- more individuals who are knowledge-
tion or identifiable biospecimens was able about and experienced in working
obtained in accordance with with these categories of subjects.
§ 11.116(a)(1) through (4), (a)(6), and (d); (b) Each IRB shall include at least
(ii) Documentation of informed con- one member whose primary concerns
sent or waiver of documentation of are in scientific areas and at least one
consent was obtained in accordance member whose primary concerns are in
with § 11.117; nonscientific areas.
(iii) An IRB conducts a limited IRB (c) Each IRB shall include at least
review and makes the determination one member who is not otherwise affili-
required by § 11.111(a)(7) and makes the ated with the institution and who is
determination that the research to be not part of the immediate family of a
conducted is within the scope of the person who is affiliated with the insti-
broad consent referenced in paragraph tution.
(d)(8)(i) of this section; and (iv) The in- (d) No IRB may have a member par-
vestigator does not include returning ticipate in the IRB’s initial or con-
individual research results to subjects tinuing review of any project in which
the member has a conflicting interest,
as part of the study plan. This provi-
except to provide information re-
sion does not prevent an investigator
quested by the IRB.
from abiding by any legal requirements (e) An IRB may, in its discretion, in-
to return individual research results. vite individuals with competence in
special areas to assist in the review of
(Approved by the Office of Management and

Budget under Control Number 0990–0260) issues that require expertise beyond or
in addition to that available on the
109
IRB. These individuals may not vote ments or determinations of the IRB;
with the IRB. and
(ii) Any suspension or termination of
§ 11.108 IRB functions and operations. IRB approval.
(a) In order to fulfill the require- (b) Except when an expedited review
ments of this policy each IRB shall: procedure is used (as described in
§ 11.110), an IRB must review proposed
(1) Have access to meeting space and
research at convened meetings at
sufficient staff to support the IRB’s re-
which a majority of the members of the
view and recordkeeping duties;
IRB are present, including at least one
(2) Prepare and maintain a current member whose primary concerns are in
list of the IRB members identified by nonscientific areas. In order for the re-
name; earned degrees; representative search to be approved, it shall receive
capacity; indications of experience the approval of a majority of those
such as board certifications or licenses members present at the meeting.
sufficient to describe each member’s
chief anticipated contributions to IRB (Approved by the Office of Management and
deliberations; and any employment or Budget under Control Number 0990–0260)
other relationship between each mem- § 11.109 IRB review of research.
ber and the institution, for example,
full-time employee, part-time em- (a) An IRB shall review and have au-
ployee, member of governing panel or thority to approve, require modifica-
board, stockholder, paid or unpaid con- tions in (to secure approval), or dis-
sultant; approve all research activities covered
(3) Establish and follow written pro- by this policy, including exempt re-
cedures for: search activities under § 11.104 for
which limited IRB review is a condi-
(i) Conducting its initial and con-
tion of exemption (under
tinuing review of research and for re-
§ 11.104(d)(2)(iii), (d)(3)(i)(C), and (d)(7),
porting its findings and actions to the and (8)).
investigator and the institution; (b) An IRB shall require that infor-
(ii) Determining which projects re- mation given to subjects (or legally au-
quire review more often than annually thorized representatives, when appro-
and which projects need verification priate) as part of informed consent is
from sources other than the investiga- in accordance with § 11.116. The IRB
tors that no material changes have oc- may require that information, in addi-
curred since previous IRB review; and tion to that specifically mentioned in
(iii) Ensuring prompt reporting to § 11.116, be given to the subjects when
the IRB of proposed changes in a rein the IRB’s judgment the information
search activity, and for ensuring that would meaningfully add to the protec-
investigators will conduct the research tion of the rights and welfare of sub-
activity in accordance with the terms jects.
of the IRB approval until any proposed (c) An IRB shall require documenta-
changes have been reviewed and ap- tion of informed consent or may waive
proved by the IRB, except when nec- documentation in accordance with
essary to eliminate apparent imme- § 11.117.
diate hazards to the subject. (d) An IRB shall notify investigators
(4) Establish and follow written pro- and the institution in writing of its de-
cedures for ensuring prompt reporting cision to approve or disapprove the pro-
to the IRB; appropriate institutional posed research activity, or of modifica-
officials; the department or agency tions required to secure IRB approval
head; and the Office for Human Re- of the research activity. If the IRB de-
search Protections, HHS, or any suc- cides to disapprove a research activity,
cessor office, or the equivalent office it shall include in its written notifica-
within the appropriate Federal depart- tion a statement of the reasons for its
ment or agency of decision and give the investigator an
(i) Any unanticipated problems in- opportunity to respond in person or in
volving risks to subjects or others or writing.
any serious or continuing noncompli- (e) An IRB shall conduct continuing

ance with this policy or the require- review of research requiring review by
110
the convened IRB at intervals appro- (ii) Minor changes in previously ap-
priate to the degree of risk, not less proved research during the period for
than once per year, except as described which approval is authorized; or
in § 11.109(f). (iii) Research for which limited IRB
(f)(1) Unless an IRB determines oth- review is a condition of exemption
erwise, continuing review of research is under § 11.104(d)(2)(iii), (d)(3)(i)(C), and
not required in the following cir- (d)(7) and (8).
cumstances: (2) Under an expedited review proce-
(i) Research eligible for expedited re- dure, the review may be carried out by
view in accordance with § 11.110; the IRB chairperson or by one or more
(ii) Research reviewed by the IRB in experienced reviewers designated by
accordance with the limited IRB re- the chairperson from among members
view described in § 11.104(d)(2)(iii), of the IRB. In reviewing the research,
(d)(3)(i)(C), or (d)(7) or (8); the reviewers may exercise all of the
(iii) Research that has progressed to authorities of the IRB except that the
the point that it involves only one or reviewers may not disapprove the re-
both of the following, which are part of search. A research activity may be dis-
the IRB-approved study: approved only after review in accord-
(A) Data analysis, including analysis ance with the nonexpedited procedure
of identifiable private information or set forth in § 11.108(b).
identifiable biospecimens, or (c) Each IRB that uses an expedited
(B) Accessing follow-up clinical data review procedure shall adopt a method
from procedures that subjects would for keeping all members advised of re-
undergo as part of clinical care. search proposals that have been ap-
(2) [Reserved.] proved under the procedure.
(g) An IRB shall have authority to (d) The department or agency head
observe or have a third party observe may restrict, suspend, terminate, or
the consent process and the research. choose not to authorize an institu-
tion’s or IRB’s use of the expedited re-
Budget under Control Number 0990–0260) view procedure.
§ 11.110 Expedited review procedures § 11.111 Criteria for IRB approval of

for certain kinds of research involv- research.
ing no more than minimal risk, and (a) In order to approve research cov-
for minor changes in approved re- ered by this policy the IRB shall deter-
search. mine that all of the following require-
(a) The Secretary of HHS has estab- ments are satisfied:
lished, and published as a Notice in the (1) Risks to subjects are minimized:
FEDERAL REGISTER, a list of categories (i) By using procedures that are con-
of research that may be reviewed by sistent with sound research design and
the IRB through an expedited review that do not unnecessarily expose sub-
procedure. The Secretary will evaluate jects to risk, and
the list at least every 8 years and (ii) Whenever appropriate, by using
amend it, as appropriate, after con- procedures already being performed on
sultation with other federal depart- the subjects for diagnostic or treat-
ments and agencies and after publica- ment purposes.
tion in the FEDERAL REGISTER for pub- (2) Risks to subjects are reasonable
lic comment. A copy of the list is in relation to anticipated benefits, if
available from the Office for Human any, to subjects, and the importance of
Research Protections, HHS, or any suc- the knowledge that may reasonably be
cessor office. expected to result. In evaluating risks
(b)(1) An IRB may use the expedited and benefits, the IRB should consider
review procedure to review the fol- only those risks and benefits that may
lowing: result from the research (as distin-
(i) Some or all of the research ap- guished from risks and benefits of
pearing on the list described in para- therapies subjects would receive even if
graph (a) of this section, unless the re- not participating in the research). The
viewer determines that the study in- IRB should not consider possible long-
volves more than minimal risk; range effects of applying knowledge
111
gained in the research (e.g., the pos- tion is appropriate, in accordance with
sible effects of the research on public § 11.117; and
policy) as among those research risks (iii) If there is a change made for re-
that fall within the purview of its research purposes in the way the identifi-
sponsibility. able private information or identifiable
(3) Selection of subjects is equitable. biospecimens are stored or maintained,
In making this assessment the IRB there are adequate provisions to pro-
should take into account the purposes tect the privacy of subjects and to
of the research and the setting in maintain the confidentiality of data.
which the research will be conducted. (b) When some or all of the subjects
The IRB should be particularly cog- are likely to be vulnerable to coercion
nizant of the special problems of re- or undue influence, such as children,
search that involves a category of sub- prisoners, individuals with impaired
jects who are vulnerable to coercion or decision-making capacity, or economi-
undue influence, such as children, pris- cally or educationally disadvantaged
oners, individuals with impaired deci- persons, additional safeguards have
sion-making capacity, or economically been included in the study to protect
or educationally disadvantaged per- the rights and welfare of these sub-
sons. jects.
(4) Informed consent will be sought
§ 11.112 Review by Institution
from each prospective subject or the
subject’s legally authorized representa- Research covered by this policy that
tive, in accordance with, and to the ex- has been approved by an IRB may be
tent required by, § 11.116. subject to further appropriate review
(5) Informed consent will be appro- and approval or disapproval by officials
priately documented or appropriately of the institution. However, those offi-
waived in accordance with § 11.117. cials may not approve the research if it
(6) When appropriate, the research has not been approved by an IRB.
plan makes adequate provision for
§ 11.113 Suspension or Termination of
monitoring the data collected to en- IRB Approval of Research.
sure the safety of subjects.
(7) When appropriate, there are ade- An IRB shall have authority to sus-
quate provisions to protect the privacy pend or terminate approval of research
of subjects and to maintain the con- that is not being conducted in accord-
fidentiality of data. ance with the IRB’s requirements or
(i) The Secretary of HHS will, after that has been associated with unex-
consultation with the Office of Man- pected serious harm to subjects. Any
agement and Budget’s privacy office suspension or termination of approval
and other Federal departments and shall include a statement of the rea-
agencies that have adopted this policy, sons for the IRB’s action and shall be
issue guidance to assist IRBs in assess- reported promptly to the investigator,
ing what provisions are adequate to appropriate institutional officials, and
protect the privacy of subjects and to the department or agency head.
maintain the confidentiality of data. (Approved by the Office of Management and
(ii) [Reserved] Budget under Control Number 0990–0260)
(8) For purposes of conducting the
limited IRB review required by § 11.114 Cooperative Research.
§ 11.104(d)(7)), the IRB need not make (a) Cooperative research projects are
the determinations at paragraphs (a)(1) those projects covered by this policy
through (7) of this section, and shall that involve more than one institution.
make the following determinations: In the conduct of cooperative research
(i) Broad consent for storage, mainte- projects, each institution is responsible
nance, and secondary research use of for safeguarding the rights and welfare
identifiable private information or of human subjects and for complying
identifiable biospecimens is obtained in with this policy.
accordance with the requirements of (b)(1) Any institution located in the
§ 11.116(a)(1)–(4), (a)(6), and (d); United States that is engaged in coop-
(ii) Broad consent is appropriately erative research must rely upon ap-
documented or waiver of documenta- proval by a single IRB for that portion
112
of the research that is conducted in the (5) A list of IRB members in the same
United States. The reviewing IRB will detail as described in § 11.108(a)(2).
be identified by the Federal depart- (6) Written procedures for the IRB in
ment or agency supporting or con- the same detail as described in
ducting the research or proposed by the § 11.108(a)(3) and (4).
lead institution subject to the accept- (7) Statements of significant new
ance of the Federal department or findings provided to subjects, as re-
agency supporting the research. quired by § 11.116(c)(5).
(2) The following research is not sub- (8) The rationale for an expedited re-
ject to this provision: viewer’s determination under
(i) Cooperative research for which § 11.110(b)(1)(i) that research appearing
more than single IRB review is re-
on the expedited review list described
quired by law (including tribal law
in § 11.110(a) is more than minimal risk.
passed by the official governing body of
an American Indian or Alaska Native (9) Documentation specifying the re-
tribe); or sponsibilities that an institution and
(ii) Research for which any Federal an organization operating an IRB each
department or agency supporting or will undertake to ensure compliance
conducting the research determines with the requirements of this policy, as
and documents that the use of a single described in § 11.103(e).
IRB is not appropriate for the par- (b) The records required by this pol-
ticular context. icy shall be retained for at least 3
(c) For research not subject to para- years, and records relating to research
graph (b) of this section, an institution that is conducted shall be retained for
participating in a cooperative project at least 3 years after completion of the
may enter into a joint review arrange- research. The institution or IRB may
ment, rely on the review of another maintain the records in printed form,
IRB, or make similar arrangements for or electronically. All records shall be
avoiding duplication of effort. accessible for inspection and copying
by authorized representatives of the
§ 11.115 IRB Records. Federal department or agency at rea-
(a) An institution, or when appro- sonable times and in a reasonable man-
priate an IRB, shall prepare and main- ner.
tain adequate documentation of IRB
activities, including the following: Budget under Control Number 0990–0260)
(1) Copies of all research proposals re-
viewed, scientific evaluations, if any, § 11.116 General Requirements for In-
that accompany the proposals, ap- formed Consent.
proved sample consent forms, progress
reports submitted by investigators, and (a) General. General requirements for
reports of injuries to subjects. informed consent, whether written or
(2) Minutes of IRB meetings, which oral, are set forth in this paragraph
shall be in sufficient detail to show at- and apply to consent obtained in ac-
tendance at the meetings; actions cordance with the requirements set
taken by the IRB; the vote on these ac- forth in paragraphs (b) through (d) of
tions including the number of members this section. Broad consent may be ob-
voting for, against, and abstaining; the tained in lieu of informed consent ob-
basis for requiring changes in or dis- tained in accordance with paragraphs
approving research; and a written sum- (b) and (c) of this section only with re-
mary of the discussion of controverted spect to the storage, maintenance, and
issues and their resolution. secondary research uses of identifiable
(3) Records of continuing review ac- private information and identifiable
tivities, including the rationale for biospecimens. Waiver or alteration of
conducting continuing review of re- consent in research involving public
search that otherwise would not re- benefit and service programs conducted
quire continuing review as described in by or subject to the approval of state
§ 11.109(f)(1). or local officials is described in para-
(4) Copies of all correspondence be- graph (e) of this section. General waiv-
tween the IRB and the investigators. er or alteration of informed consent is
113
described in paragraph (f) of this sec- waive or appear to waive any of the
tion. Except as provided elsewhere in subject’s legal rights, or releases or ap-
this policy: pears to release the investigator, the
(1) Before involving a human subject sponsor, the institution, or its agents
in research covered by this policy, an from liability for negligence.
investigator shall obtain the legally ef- (b) Basic elements of informed consent.
fective informed consent of the subject Except as provided in paragraph (d),
or the subject’s legally authorized rep- (e), or (f) of this section, in seeking in-
resentative. formed consent the following informa-
(2) An investigator shall seek in- tion shall be provided to each subject
formed consent only under cir- or the legally authorized representa-
cumstances that provide the prospective:
tive subject or the legally authorized (1) A statement that the study in-
representative sufficient opportunity volves research, an explanation of the
to discuss and consider whether or not purposes of the research and the ex-
to participate and that minimize the pected duration of the subject’s partici-
possibility of coercion or undue influ- pation, a description of the procedures
ence. to be followed, and identification of
(3) The information that is given to any procedures that are experimental;
the subject or the legally authorized (2) A description of any reasonably
representative shall be in language un- foreseeable risks or discomforts to the
derstandable to the subject or the le- subject;
gally authorized representative. (3) A description of any benefits to
(4) The prospective subject or the le- the subject or to others that may rea-
gally authorized representative must sonably be expected from the research;
be provided with the information that (4) A disclosure of appropriate alter-
a reasonable person would want to native procedures or courses of treat-
have in order to make an informed de- ment, if any, that might be advan-
cision about whether to participate, tageous to the subject;
and an opportunity to discuss that in- (5) A statement describing the ex-
formation. tent, if any, to which confidentiality of
(5) Except for broad consent obtained records identifying the subject will be
in accordance with paragraph (d) of maintained;
this section: (6) For research involving more than
(i) Informed consent must begin with minimal risk, an explanation as to
a concise and focused presentation of whether any compensation and an ex-
the key information that is most likely planation as to whether any medical
to assist a prospective subject or le- treatments are available if injury oc-
gally authorized representative in un- curs and, if so, what they consist of, or
derstanding the reasons why one might where further information may be ob-
or might not want to participate in the tained;
research. This part of the informed (7) An explanation of whom to con-
consent must be organized and pre- tact for answers to pertinent questions
sented in a way that facilitates com- about the research and research sub-
prehension. jects’ rights, and whom to contact in
(ii) Informed consent as a whole must the event of a research-related injury
present information in sufficient detail to the subject;
relating to the research, and must be (8) A statement that participation is
organized and presented in a way that voluntary, refusal to participate will
does not merely provide lists of iso- involve no penalty or loss of benefits to
lated facts, but rather facilitates the which the subject is otherwise entitled,
prospective subject’s or legally author- and the subject may discontinue par-
ized representative’s understanding of ticipation at any time without penalty
the reasons why one might or might or loss of benefits to which the subject
not want to participate. is otherwise entitled; and
(6) No informed consent may include (9) One of the following statements
any exculpatory language through about any research that involves the
which the subject or the legally au- collection of identifiable private infor-
thorized representative is made to mation or identifiable biospecimens:
114
(i) A statement that identifiers cluding individual research results,

might be removed from the identifiable will be disclosed to subjects, and if so,
private information or identifiable bio- under what conditions; and
specimens and that, after such re- (9) For research involving biospeci-
moval, the information or biospecimens, whether the research will (if
mens could be used for future research known) or might include whole genome
studies or distributed to another inves- sequencing (i.e., sequencing of a human
tigator for future research studies germline or somatic specimen with the
without additional informed consent intent to generate the genome or
from the subject or the legally author- exome sequence of that specimen).
ized representative, if this might be a (d) Elements of broad consent for the
possibility; or storage, maintenance, and secondary re-
(ii) A statement that the subject’s in- search use of identifiable private informa-
formation or biospecimens collected as tion or identifiable biospecimens. Broad
part of the research, even if identifiers consent for the storage, maintenance,
are removed, will not be used or dis- and secondary research use of identifi-
tributed for future research studies. able private information or identifiable
(c) Additional elements of informed con- biospecimens (collected for either re-
sent. Except as provided in paragraph search studies other than the proposed
(d), (e), or (f) of this section, one or research or nonresearch purposes) is
more of the following elements of in- permitted as an alternative to the in-
formation, when appropriate, shall also formed consent requirements in para-
be provided to each subject or the le- graphs (b) and (c) of this section. If the
gally authorized representative: subject or the legally authorized rep-
(1) A statement that the particular resentative is asked to provide broad
treatment or procedure may involve consent, the following shall be provided
risks to the subject (or to the embryo to each subject or the subject’s legally
or fetus, if the subject is or may be- authorized representative:
come pregnant) that are currently un- (1) The information required in para-
foreseeable; graphs (b)(2), (b)(3), (b)(5), and (b)(8)
(2) Anticipated circumstances under and, when appropriate, (c)(7) and (9) of
which the subject’s participation may this section;
be terminated by the investigator (2) A general description of the types
without regard to the subject’s or the of research that may be conducted with
legally authorized representative’s the identifiable private information or
consent; identifiable biospecimens. This descrip-
(3) Any additional costs to the sub- tion must include sufficient informa-
ject that may result from participation tion such that a reasonable person
in the research; would expect that the broad consent
(4) The consequences of a subject’s would permit the types of research con-
decision to withdraw from the research ducted;
and procedures for orderly termination (3) A description of the identifiable
of participation by the subject; private information or identifiable bio-
(5) A statement that significant new specimens that might be used in re-
findings developed during the course of search, whether sharing of identifiable
the research that may relate to the private information or identifiable bio-
subject’s willingness to continue par- specimens might occur, and the types
ticipation will be provided to the sub- of institutions or researchers that
ject; might conduct research with the iden-
(6) The approximate number of sub- tifiable private information or identifi-
jects involved in the study; able biospecimens;
(7) A statement that the subject’s (4) A description of the period of time
biospecimens (even if identifiers are re- that the identifiable private informa-
moved) may be used for commercial tion or identifiable biospecimens may
profit and whether the subject will or be stored and maintained (which period
will not share in this commercial prof- of time could be indefinite), and a de-
it; scription of the period of time that the
(8) A statement regarding whether identifiable private information or

clinically relevant research results, in- identifiable biospecimens may be used
115
for research purposes (which period of sent procedure is used, an IRB may not
time could be indefinite); omit or alter any of the elements re-
(5) Unless the subject or legally au- quired under paragraph (d) of this sec-
thorized representative will be pro- tion.
vided details about specific research (3) Requirements for waiver and alter-
studies, a statement that they will not ation. In order for an IRB to waive or
be informed of the details of any spe- alter consent as described in this sub-
cific research studies that might be section, the IRB must find and docu-
conducted using the subject’s identifi- ment that:
able private information or identifiable (i) The research or demonstration
biospecimens, including the purposes of project is to be conducted by or subject
the research, and that they might have to the approval of state or local gov-
chosen not to consent to some of those ernment officials and is designed to
specific research studies; study, evaluate, or otherwise examine:
(6) Unless it is known that clinically (A) Public benefit or service pro-
relevant research results, including in- grams;
dividual research results, will be dis- (B) Procedures for obtaining benefits
closed to the subject in all cir- or services under those programs;
cumstances, a statement that such re- (C) Possible changes in or alter-
sults may not be disclosed to the sub- natives to those programs or proce-
ject; and dures; or
(7) An explanation of whom to con- (D) Possible changes in methods or
tact for answers to questions about the levels of payment for benefits or serv-
subject’s rights and about storage and ices under those programs; and
use of the subject’s identifiable private (ii) The research could not prac-
information or identifiable biospeci- ticably be carried out without the
mens, and whom to contact in the waiver or alteration.
event of a research-related harm. (f) General waiver or alteration of con-
(e) Waiver or alteration of consent in sent—(1) Waiver. An IRB may waive the
research involving public benefit and serv- requirement to obtain informed con-
ice programs conducted by or subject to sent for research under paragraphs (a)
the approval of state or local officials—(1) through (c) of this section, provided
Waiver. An IRB may waive the require- the IRB satisfies the requirements of
ment to obtain informed consent for paragraph (f)(3) of this section. If an in-
research under paragraphs (a) through dividual was asked to provide broad
(c) of this section, provided the IRB consent for the storage, maintenance,
satisfies the requirements of paragraph and secondary research use of identifi-
(e)(3) of this section. If an individual able private information or identifiable
was asked to provide broad consent for biospecimens in accordance with the
the storage, maintenance, and sec- requirements at paragraph (d) of this
ondary research use of identifiable pri- section, and refused to consent, an IRB
vate information or identifiable bio- cannot waive consent for the storage,
specimens in accordance with the re- maintenance, or secondary research
quirements at paragraph (d) of this sec- use of the identifiable private informa-
tion, and refused to consent, an IRB tion or identifiable biospecimens.
cannot waive consent for the storage, (2) Alteration. An IRB may approve a
maintenance, or secondary research consent procedure that omits some, or
use of the identifiable private informa- alters some or all, of the elements of
tion or identifiable biospecimens. informed consent set forth in para-
(2) Alteration. An IRB may approve a graphs (b) and (c) of this section pro-
consent procedure that omits some, or vided the IRB satisfies the require-
alters some or all, of the elements of ments of paragraph (f)(3) of this sec-
informed consent set forth in para- tion. An IRB may not omit or alter any
graphs (b) and (c) of this section proof the requirements described in para-
vided the IRB satisfies the require- graph (a) of this section. If a broad con-
ments of paragraph (e)(3) of this sec- sent procedure is used, an IRB may not
tion. An IRB may not omit or alter any omit or alter any of the elements re-
of the requirements described in para- quired under paragraph (d) of this sec-
graph (a) of this section. If a broad con- tion.
116
(3) Requirements for waiver and alter- available on a Federal Web site (e.g.
ation. In order for an IRB to waive or confidential commercial information),
alter consent as described in this sub- such Federal department or agency
section, the IRB must find and docu- may permit or require redactions to
ment that: the information posted.
(i) The research involves no more (3) The informed consent form must
than minimal risk to the subjects; be posted on the Federal Web site after
(ii) The research could not prac- the clinical trial is closed to recruit-
ticably be carried out without the re- ment, and no later than 60 days after
quested waiver or alteration; the last study visit by any subject, as
(iii) If the research involves using required by the protocol.
identifiable private information or (i) Preemption. The informed consent
identifiable biospecimens, the research requirements in this policy are not in-
could not practicably be carried out tended to preempt any applicable Fed-
without using such information or bio- eral, state, or local laws (including
specimens in an identifiable format; tribal laws passed by the official gov-
(iv) The waiver or alteration will not erning body of an American Indian or
adversely affect the rights and welfare Alaska Native tribe) that require addi-
of the subjects; and tional information to be disclosed in
(v) Whenever appropriate, the sub- order for informed consent to be le-
jects or legally authorized representa- gally effective.
tives will be provided with additional (j) Emergency medical care. Nothing in
pertinent information after participa- this policy is intended to limit the au-
tion. thority of a physician to provide emer-
(g) Screening, recruiting, or determining gency medical care, to the extent the
eligibility. An IRB may approve a re- physician is permitted to do so under
search proposal in which an investi- applicable Federal, state, or local law
gator will obtain information or bio- (including tribal law passed by the offi-
specimens for the purpose of screening, cial governing body of an American In-
recruiting, or determining the eligi- dian or Alaska Native tribe).
bility of prospective subjects without (Approved by the Office of Management and
the informed consent of the prospective Budget under Control Number 0990–0260)
subject or the subject’s legally author-
ized representative, if either of the fol- § 11.117 Documentation of informed
lowing conditions are met: consent.
(1) The investigator will obtain infor- (a) Except as provided in paragraph
mation through oral or written com- (c) of this section, informed consent
munication with the prospective sub- shall be documented by the use of a
ject or legally authorized representa- written informed consent form ap-
tive, or proved by the IRB and signed (includ-
(2) The investigator will obtain iden- ing in an electronic format) by the sub-
tifiable private information or identifi- ject or the subject’s legally authorized
able biospecimens by accessing records representative. A written copy shall be
or stored identifiable biospecimens. given to the person signing the in-
(h) Posting of clinical trial consent formed consent form.
form. (1) For each clinical trial con- (b) Except as provided in paragraph
ducted or supported by a Federal de- (c) of this section, the informed con-
partment or agency, one IRB-approved sent form may be either of the fol-
informed consent form used to enroll lowing:
subjects must be posted by the awardee (1) A written informed consent form
or the Federal department or agency that meets the requirements of § 11.116.
component conducting the trial on a The investigator shall give either the
publicly available Federal Web site subject or the subject’s legally author-
that will be established as a repository ized representative adequate oppor-
for such informed consent forms. tunity to read the informed consent
(2) If the Federal department or agen- form before it is signed; alternatively,
cy supporting or conducting the clin- this form may be read to the subject or
ical trial determines that certain infor- the subject’s legally authorized rep-
mation should not be made publicly resentative.
117
(2) A short form written informed subjects or legally authorized rep-

consent form stating that the elements resentatives with a written statement
of informed consent required by § 11.116 regarding the research.
have been presented orally to the sub-
ject or the subject’s legally authorized (Approved by the Office of Management and
Budget under Control Number 0990–0260)
representative, and that the key infor-
mation required by § 11.116(a)(5)(i) was § 11.118 Applications and proposals
presented first to the subject, before lacking definite plans for involve-
other information, if any, was pro- ment of human subjects.
vided. The IRB shall approve a written
summary of what is to be said to the Certain types of applications for
subject or the legally authorized rep- grants, cooperative agreements, or con-
resentative. When this method is used, tracts are submitted to Federal depart-
there shall be a witness to the oral ments or agencies with the knowledge
presentation. Only the short form itself that subjects may be involved within
is to be signed by the subject or the the period of support, but definite
subject’s legally authorized representa- plans would not normally be set forth
tive. However, the witness shall sign in the application or proposal. These
both the short form and a copy of the include activities such as institutional
summary, and the person actually ob- type grants when selection of specific
taining consent shall sign a copy of the projects is the institution’s responsi-
summary. A copy of the summary shall bility; research training grants in
be given to the subject or the subject’s which the activities involving subjects
legally authorized representative, in remain to be selected; and projects in
addition to a copy of the short form. which human subjects’ involvement
(c)(1) An IRB may waive the require- will depend upon completion of instru-
ment for the investigator to obtain a ments, prior animal studies, or purifi-
signed informed consent form for some
cation of compounds. Except for re-
or all subjects if it finds any of the fol-
search waived under § 11.101(i) or ex-
lowing:
empted under § 11.104, no human sub-
(i) That the only record linking the
subject and the research would be the jects may be involved in any project
informed consent form and the prin- supported by these awards until the
cipal risk would be potential harm re- project has been reviewed and approved
sulting from a breach of confiden- by the IRB, as provided in this policy,
tiality. Each subject (or legally author- and certification submitted, by the in-
ized representative) will be asked stitution, to the Federal department or
whether the subject wants documenta- agency component supporting the re-
tion linking the subject with the research.
search, and the subject’s wishes will
govern; § 11.119 Research undertaken without
(ii) That the research presents no the intention of involving human
more than minimal risk of harm to subjects.
subjects and involves no procedures for Except for research waived under
which written consent is normally re- § 11.101(i) or exempted under § 11.104, in
quired outside of the research context; the event research is undertaken with-
or out the intention of involving human
(iii) If the subjects or legally author- subjects, but it is later proposed to in-
ized representatives are members of a volve human subjects in the research,
distinct cultural group or community the research shall first be reviewed and
in which signing forms is not the norm, approved by an IRB, as provided in this
that the research presents no more policy, a certification submitted by the
than minimal risk of harm to subjects
institution to the Federal department
and provided there is an appropriate al-
or agency component supporting the
ternative mechanism for documenting
research, and final approval given to
that informed consent was obtained.
(2) In cases in which the documenta- the proposed change by the Federal de-
tion requirement is waived, the IRB partment or agency component.

may require the investigator to provide
118
§ 11.120 Evaluation and disposition of would direct or has/have directed the

applications and proposals for re- scientific and technical aspects of an
search to be conducted or sup- activity has/have, in the judgment of
ported by a Federal department or the department or agency head, mate-
agency. rially failed to discharge responsibility
(a) The department or agency head for the protection of the rights and
will evaluate all applications and pro- welfare of human subjects (whether or
posals involving human subjects sub- not the research was subject to federal
mitted to the Federal department or regulation).
agency through such officers and em-
ployees of the Federal department or § 11.124 Conditions.
agency and such experts and consult- With respect to any research project
ants as the department or agency head or any class of research projects the de-
determines to be appropriate. This partment or agency head of either the
evaluation will take into consideration conducting or the supporting Federal
the risks to the subjects, the adequacy department or agency may impose ad-
of protection against these risks, the ditional conditions prior to or at the
potential benefits of the research to time of approval when in the judgment
the subjects and others, and the impor- of the department or agency head addi-
tance of the knowledge gained or to be tional conditions are necessary for the
gained. protection of human subjects.
(b) On the basis of this evaluation,
the department or agency head may PART 15—PROTECTION OF
approve or disapprove the application SENSITIVE SECURITY INFORMATION
or proposal, or enter into negotiations
to develop an approvable one. Sec.
15.1 Scope.
§ 11.121 [Reserved] 15.3 Terms used in this part.
15.5 Sensitive security information.
§ 11.122 Use of Federal funds. 15.7 Covered persons.
Federal funds administered by a Fed- 15.9 Restrictions on the disclosure of SSI.
eral department or agency may not be 15.11 Persons with a need to know.
expended for research involving human 15.13 Marking SSI.
subjects unless the requirements of 15.15 SSI disclosed by DOT.
15.17 Consequences of unauthorized disclo-
this policy have been satisfied. sure of SSI.
15.19 Destruction of SSI.
§ 11.123 Early termination of research
support: Evaluation of applications AUTHORITY: 49 U.S.C. 40119.
and proposals. SOURCE: 69 FR 28078, May 18, 2004, unless
(a) The department or agency head otherwise noted.
may require that Federal department
or agency support for any project be § 15.1 Scope.
terminated or suspended in the manner (a) Applicability. This part governs
prescribed in applicable program re- the maintenance, safeguarding, and
quirements, when the department or disclosure of records and information
agency head finds an institution has that the Secretary of DOT has deter-
materially failed to comply with the mined to be Sensitive Security Infor-
terms of this policy. mation, as defined in § 15.5. This part
(b) In making decisions about sup- does not apply to the maintenance,
porting or approving applications or safeguarding, or disclosure of classified
proposals covered by this policy the de- national security information, as de-
partment or agency head may take fined by Executive Order 12968, or to
into account, in addition to all other other sensitive unclassified informa-
eligibility requirements and program tion that is not SSI, but that nonethe-
criteria, factors such as whether the less may be exempt from public disclo-
applicant has been subject to a termi- sure under the Freedom of Information
nation or suspension under paragraph Act. In addition, in the case of infor-
(a) of this section and whether the ap- mation that has been designated as
plicant or the person or persons who critical infrastructure information
119
under section 214 of the Homeland Se- electronic format. The term record also
curity Act, the receipt, maintenance, includes any draft, proposed, or rec-
or disclosure of such information by a ommended change to any record.
Federal agency or employee is gov- Security contingency plan means a
erned by section 214 and any imple- plan detailing response procedures to
menting regulations, not by this part. address a transportation security inci-
(b) Delegation. The authority of the dent, threat assessment, or specific
Secretary under this part may be fur- threat against transportation, includ-
ther delegated within DOT. ing details of preparation, response,
mitigation, recovery, and reconstitu-
§ 15.3 Terms used in this part. tion procedures, continuity of govern-
In addition to the terms in § 15.3 of ment, continuity of transportation op-
this chapter, the following terms apply erations, and crisis management.
in this part: Security program means a program or
Administrator means the Under Sec- plan and any amendments developed
retary of Transportation for Security for the security of the following, in-
referred to in 49 U.S.C. 114(b), or his or cluding any comments, instructions, or
her designee. implementing guidance:
Coast Guard means the United States (1) An airport, aircraft, or aviation
Coast Guard. cargo operation;
Covered person means any organiza- (2) A maritime facility, vessel, or
tion, entity, individual, or other person port area; or
described in § 15.7. In the case of an in- (3) A transportation-related auto-
dividual, covered person includes any in- mated system or network for informa-
dividual applying for employment in a tion processing, control, and commu-
position that would be a covered per- nications.
son, or in training for such a position, Security screening means evaluating a
regardless of whether that individual is person or property to determine wheth-
receiving a wage, salary, or other form er either poses a threat to security.
of payment. Covered person includes a SSI means sensitive security infor-
person applying for certification or mation, as described in § 15.5.
other form of approval that, if granted, Threat image projection system means
would make the person a covered per- an evaluation tool that involves peri-
son described in § 15.7. odic presentation of fictional threat
DHS means the Department of Home- images to operators and is used in con-
land Security and any directorate, bu- nection with x-ray or explosives detec-
reau, or other component within the tion systems equipment.
Department of Homeland Security, in- TSA means the Transportation Secu-
cluding the United States Coast Guard. rity Administration.
DOT means the Department of Trans- Vulnerability assessment means any re-
portation and any operating adminis- view, audit, or other examination of
tration, entity, or office within the De- the security of a transportation infra-
partment of Transportation, including structure asset; airport; maritime fa-
the Saint Lawrence Seaway Develop- cility, port area, vessel, aircraft, train,
ment Corporation and the Bureau of commercial motor vehicle, or pipeline,
Transportation Statistics. or a transportation-related automated
Federal Flight Deck Officer means a system or network, to determine its
pilot participating in the Federal vulnerability to unlawful interference,
Flight Deck Officer Program under 49 whether during the conception, plan-
U.S.C. 44921 and implementing regula- ning, design, construction, operation,
tions. or decommissioning phase. A vulner-
Maritime facility means any facility as ability assessment may include proposed,
defined in 33 CFR part 101. recommended, or directed actions or
Record includes any means by which countermeasures to address security
information is preserved, irrespective concerns.
of format, including a book, paper,
drawing, map, recording, tape, film, § 15.5 Sensitive security information.
photograph, machine-readable mate- (a) In general. In accordance with 49

rial, and any information stored in an U.S.C. 40119(b)(1), SSI is information
120
obtained or developed in the conduct of scription of a test object or test proce-

security activities, including research dure, for—
and development, the disclosure of (i) Any device used by the Federal
which the Secretary of DOT has deter- government or any other person pursu-
mined would— ant to any aviation or maritime trans-
(1) Constitute an unwarranted inva- portation security requirements of
sion of privacy (including, but not lim- Federal law for the detection of any
ited to, information contained in any weapon, explosive, incendiary, or de-
personnel, medical, or similar file); structive device or substance; and
(2) Reveal trade secrets or privileged (ii) Any communications equipment
or confidential information obtained used by the Federal government or any
from any person; or other person in carrying out or com-
(3) Be detrimental to transportation plying with any aviation or maritime
safety. transportation security requirements
(b) Information constituting SSI. Ex- of Federal law.
cept as otherwise provided in writing (5) Vulnerability assessments. Any vul-
by the Secretary of DOT in the interest nerability assessment directed, cre-
of public safety or in furtherance of ated, held, funded, or approved by the
transportation security, the following DOT, DHS, or that will be provided to
information, and records containing DOT or DHS in support of a Federal se-
such information, constitute SSI: curity program.
(1) Security programs and contingency (6) Security inspection or investigative
plans. Any security program or secu- information. (i) Details of any security
rity contingency plan issued, estab- inspection or investigation of an al-
lished, required, received, or approved leged violation of aviation or maritime
by DOT or DHS, including— transportation security requirements
(i) Any aircraft operator or airport of Federal law that could reveal a secu-
operator security program or security rity vulnerability, including the iden-
contingency plan under this chapter; tity of the Federal special agent or
(ii) Any vessel, maritime facility, or other Federal employee who conducted
port area security plan required or di- the inspection or audit.
rected under Federal law; (ii) In the case of inspections or in-
(iii) Any national or area security vestigations performed by TSA, this in-
plan prepared under 46 U.S.C. 70103; and cludes the following information as to
(iv) Any security incident response events that occurred within 12 months
plan established under 46 U.S.C. 70104. of the date of release of the informa-
(2) Security Directives. Any Security tion: the name of the airport where a
Directive or order— violation occurred, the airport identi-
(i) Issued by TSA under 49 CFR fier in the case number, a description
1542.303, 1544.305, or other authority; of the violation, the regulation alleg-
(ii) Issued by the Coast Guard under edly violated, and the identity of any
the Maritime Transportation Security aircraft operator in connection with
Act, 33 CFR part 6, or 33 U.S.C. 1221 et specific locations or specific security
seq. related to maritime security; or procedures. Such information will be
(iii) Any comments, instructions, and released after the relevant 12-month
implementing guidance pertaining period, except that TSA will not re-
thereto. lease the specific gate or other location
(3) Information Circulars. Any notice on an airport where an event occurred,
issued by DHS or DOT regarding a regardless of the amount of time that
threat to aviation or maritime trans- has passed since its occurrence. During
portation, including any— the period within 12 months of the date
(i) Information Circular issued by of release of the information, TSA may
TSA under 49 CFR 1542.303 or 1544.305, release summaries of an aircraft opera-
or other authority; and tor’s, but not an airport operator’s,
(ii) Navigation or Vessel Inspection total security violations in a specified
Circular issued by the Coast Guard re- time range without identifying specific
lated to maritime security. violations or locations. Summaries
(4) Performance specifications. Any may include total enforcement actions,

performance specification and any de- total proposed civil penalty amounts,
121
number of cases opened, number of (vi) Any electronic image shown on

cases referred to TSA or FAA counsel any screening equipment monitor, in-
for legal enforcement action, and num- cluding threat images and descriptions
ber of cases closed. of threat images for threat image pro-
(7) Threat information. Any informa- jection systems.
tion held by the Federal government (10) Security training materials.
concerning threats against transpor- Records created or obtained for the
tation or transportation systems and purpose of training persons employed
sources and methods used to gather or by, contracted with, or acting for the
develop threat information, including Federal government or another person
threats against cyber infrastructure. to carry out any aviation or maritime
(8) Security measures. Specific details transportation security measures re-
of aviation or maritime transportation quired or recommended by DHS or
security measures, both operational DOT.
and technical, whether applied directly (11) Identifying information of certain
by the Federal government or another transportation security personnel. (i)
person, including— Lists of the names or other identifying
(i) Security measures or protocols information that identify persons as—
recommended by the Federal govern- (A) Having unescorted access to a se-
ment; cure area of an airport or a secure or
(ii) Information concerning the de- restricted area of a maritime facility,
ployments, numbers, and operations of port area, or vessel or;
Coast Guard personnel engaged in mar- (B) Holding a position as a security
itime security duties and Federal Air screener employed by or under con-
Marshals, to the extent it is not classi- tract with the Federal government pur-
fied national security information; and suant to aviation or maritime trans-
portation security requirements of
(iii) Information concerning the de-
Federal law, where such lists are aggre-
ployments and operations of Federal
gated by airport;
Flight Deck Officers, and numbers of
(C) Holding a position with the Coast
Federal Flight Deck Officers aggre-
Guard responsible for conducting vul-
gated by aircraft operator.
nerability assessments, security
(9) Security screening information. The
boardings, or engaged in operations to
following information regarding secu-
enforce maritime security require-
rity screening under aviation or mari-
ments or conduct force protection;
time transportation security require-
(D) Holding a position as a Federal
ments of Federal law:
Air Marshal; or
(i) Any procedures, including selec- (ii) The name or other identifying in-
tion criteria and any comments, information that identifies a person as a
structions, and implementing guidance current, former, or applicant for Fed-
pertaining thereto, for screening of eral Flight Deck Officer.
persons, accessible property, checked (12) Critical aviation or maritime infra-
baggage, U.S. mail, stores, and cargo, structure asset information. Any list
that is conducted by the Federal gov- identifying systems or assets, whether
ernment or any other authorized per- physical or virtual, so vital to the avia-
son. tion or maritime transportation sys-
(ii) Information and sources of infor- tem that the incapacity or destruction
mation used by a passenger or property of such assets would have a debili-
screening program or system, including tating impact on transportation secu-
an automated screening system. rity, if the list is—
(iii) Detailed information about the (i) Prepared by DHS or DOT; or
locations at which particular screening (ii) Prepared by a State or local gov-
methods or equipment are used, only if ernment agency and submitted by the
determined by TSA to be SSI. agency to DHS or DOT.
(iv) Any security screener test and (13) Systems security information. Any
scores of such tests. information involving the security of
(v) Performance or testing data from operational or administrative data sys-
security equipment or screening systems operated by the Federal govern-

tems. ment that have been identified by the
122
DOT or DHS as critical to aviation or (a) Each airport operator and aircraft
maritime transportation safety or se- operator subject to the requirements of
curity, including automated informa- Subchapter C of this title.
tion security procedures and systems, (b) Each indirect air carrier, as de-
security inspections, and vulnerability fined in 49 CFR 1540.5.
information concerning those systems. (c) Each owner, charterer, or oper-
(14) Confidential business information. ator of a vessel, including foreign ves-
(i) Solicited or unsolicited proposals sel owners, charterers, and operators,
received by DHS or DOT, and negotia- required to have a security plan under
tions arising therefrom, to perform Federal or International law.
work pursuant to a grant, contract, co- (d) Each owner or operator of a mari-
operative agreement, or other trans- time facility required to have a secu-
action, but only to the extent that the rity plan under the Maritime Transpor-
subject matter of the proposal relates tation Security Act, (Pub. L. 107–295),
to aviation or maritime transportation 46 U.S.C. 70101 et seq., 33 CFR part 6, or
security measures; 33 U.S.C. 1221 et seq.
(ii) Trade secret information, includ- (e) Each person performing the func-
ing information required or requested tion of a computer reservation system
by regulation or Security Directive, or global distribution system for air-
obtained by DHS or DOT in carrying line passenger information.
out aviation or maritime transpor- (f) Each person participating in a na-
tation security responsibilities; and tional or area security committee es-
(iii) Commercial or financial infor- tablished under 46 U.S.C. 70112, or a
mation, including information required port security committee.
or requested by regulation or Security
(g) Each industry trade association
Directive, obtained by DHS or DOT in
that represents covered persons and
carrying out aviation or maritime
has entered into a non-disclosure
transportation security responsibil-
agreement with the DHS or DOT.
ities, but only if the source of the in-
(h) DHS and DOT.
formation does not customarily dis-
close it to the public. (i) Each person conducting research
(15) Research and development. Infor- and development activities that relate
mation obtained or developed in the to aviation or maritime transportation
conduct of research related to aviation security and are approved, accepted,
or maritime transportation security funded, recommended, or directed by
activities, where such research is ap- DHS or DOT.
proved, accepted, funded, rec- (j) Each person who has access to
ommended, or directed by the DHS or SSI, as specified in § 15.11.
DOT, including research results. (k) Each person employed by, con-
(16) Other information. Any informa- tracted to, or acting for a covered per-
tion not otherwise described in this son, including a grantee of DHS or
section that TSA determines is SSI DOT, and including a person formerly
under 49 U.S.C. 114(s) or that the Sec- in such position.
retary of DOT determines is SSI under (l) Each person for which a vulner-
49 U.S.C. 40119. Upon the request of an- ability assessment has been directed,
other Federal agency, the Secretary of created, held, funded, or approved by
DOT may designate as SSI information the DOT, DHS, or that has prepared a
not otherwise described in this section. vulnerability assessment that will be
(c) Loss of SSI designation. The Sec- provided to DOT or DHS in support of
retary of DOT may determine in writ- a Federal security program.
ing that information or records de- (m) Each person receiving SSI under
scribed in paragraph (b) of this section § 1520.15(d) or (e).
do not constitute SSI because they no
longer meet the criteria set forth in § 15.9 Restrictions on the disclosure of
paragraph (a) of this section. SSI.
(a) Duty to protect information. A cov-
§ 15.7 Covered persons. ered person must—
Persons subject to the requirements (1) Take reasonable steps to safe-

of part 15 are: guard SSI in that person’s possession
123
or control from unauthorized disclo- recommended, or directed by DHS or

sure. When a person is not in physical DOT.
possession of SSI, the person must (3) When the information is necessary
store it a secure container, such as a for the person to supervise or otherwise
locked desk or file cabinet or in a manage individuals carrying out trans-
locked room. portation security activities approved,
(2) Disclose, or otherwise provide ac- accepted, funded, recommended, or di-
cess to, SSI only to covered persons rected by the DHS or DOT.
who have a need to know, unless other- (4) When the person needs the infor-
wise authorized in writing by TSA, the mation to provide technical or legal
Coast Guard, or the Secretary of DOT. advice to a covered person regarding
(3) Refer requests by other persons transportation security requirements
for SSI to TSA or the applicable com- of Federal law.
ponent or agency within DOT or DHS. (5) When the person needs the infor-
(4) Mark SSI as specified in § 15.13. mation to represent a covered person
in connection with any judicial or ad-
(5) Dispose of SSI as specified in
ministrative proceeding regarding
§ 15.19.
those requirements.
(b) Unmarked SSI. If a covered person (b) Federal employees, contractors, and
receives a record containing SSI that is grantees. (1) A Federal employee has a
not marked as specified in § 1520.13, the need to know SSI if access to the infor-
covered person must— mation is necessary for performance of
(1) Mark the record as specified in the employee’s official duties.
§ 15.13; and (2) A person acting in the perform-
(2) Inform the sender of the record ance of a contract with or grant from
that the record must be marked as DHS or DOT has a need to know SSI if
specified in § 15.13. access to the information is necessary
(c) Duty to report unauthorized disclo- to performance of the contract or
sure. When a covered person becomes grant.
aware that SSI has been released to un- (c) Background check. The Secretary
authorized persons, the covered person of DOT may make an individual’s ac-
must promptly inform TSA or the ap- cess to the SSI contingent upon satis-
plicable DOT or DHS component or factory completion of a security back-
agency. ground check and the imposition of
(d) Additional requirements for critical procedures and requirements for safe-
infrastructure information. In the case of guarding SSI that are satisfactory to
information that is both SSI and has the Secretary.
been designated as critical infrastruc- (d) Need to know further limited by the
ture information under section 214 of DHS or DOT. For some specific SSI,
the Homeland Security Act, any cov- DHS or DOT may make a finding that
ered person who is a Federal employee only specific persons or classes of per-
in possession of such information must sons have a need to know.
comply with the disclosure restrictions
and other requirements applicable to FR 1381, Jan. 7, 2005]
such information under section 214 and
any implementing regulations. § 15.13 Marking SSI.
§ 15.11 Persons with a need to know. (a) Marking of paper records. In the
case of paper records containing SSI, a
(a) In general. A person has a need to covered person must mark the record
know SSI in each of the following cir- by placing the protective marking con-
cumstances: spicuously on the top, and the distribu-
(1) When the person requires access tion limitation statement on the bot-
to specific SSI to carry out transpor- tom, of—
tation security activities approved, ac- (1) The outside of any front and back
cepted, funded, recommended, or di- cover, including a binder cover or fold-
rected by DHS or DOT. er, if the document has a front and
(2) When the person is in training to back cover;
carry out transportation security ac- (2) Any title page; and
tivities approved, accepted, funded, (3) Each page of the document.
124
(b) Protective marking. The protective (d) Disclosure in enforcement pro-

marking is: SENSITIVE SECURITY ceedings—(1) In general. The Secretary
INFORMATION. of DOT may provide SSI to a person in
(c) Distribution limitation statement. the context of an administrative en-
The distribution limitation statement forcement proceeding when, in the sole
is: discretion of the Secretary, access to
WARNING: This record contains Sensitive the SSI is necessary for the person to
Security Information that is controlled prepare a response to allegations con-
under 49 CFR parts 15 and 1520. No part of tained in a legal enforcement action
this record may be disclosed to persons with- document issued by DOT.
out a ‘‘need to know’’, as defined in 49 CFR (2) Security background check. Prior to
parts 15 and 1520, except with the written providing SSI to a person under para-
permission of the Administrator of the graph (d)(1) of this section, the Sec-
Transportation Security Administration or
the Secretary of Transportation. Unauthor- retary of DOT may require the indi-
ized release may result in civil penalty or vidual or, in the case of an entity, the
other action. For U.S. government agencies, individuals representing the entity,
public disclosure is governed by 5 U.S.C. 552 and their counsel, to undergo and sat-
and 49 CFR parts 15 and 1520. isfy, in the judgment of the Secretary
(d) Other types of records. In the case of DOT, a security background check.
of non-paper records that contain SSI, (e) Other conditional disclosure. The
including motion picture films, video- Secretary of DOT may authorize a con-
tape recordings, audio recording, and ditional disclosure of specific records
electronic and magnetic records, a cov- or information that constitute SSI
ered person must clearly and conspicu- upon the written determination by the
ously mark the records with the pro- Secretary that disclosure of such
tective marking and the distribution records or information, subject to such
limitation statement such that the limitations and restrictions as the Sec-
viewer or listener is reasonably likely retary may prescribe, would not be det-
to see or hear them when obtaining ac- rimental to transportation safety.
cess to the contents of the record. (f) Obligation to protect information.
When an individual receives SSI pursu-
§ 15.15 SSI disclosed by DOT. ant to paragraph (d) or (e) of this sec-
(a) In general. Except as otherwise tion that individual becomes a covered
provided in this section, and notwith- person under § 15.7 and is subject to the
standing the Freedom of Information obligations of a covered person under
Act (5 U.S.C. 552), the Privacy Act (5 this part.
U.S.C. 552a), and other laws, records (g) No release under FOIA. When DOT
containing SSI are not available for discloses SSI pursuant to paragraphs
public inspection or copying, nor does (b) through (e) of this section, DOT
DOT release such records to persons makes the disclosure for the sole pur-
without a need to know. pose described in that paragraph. Such
(b) Disclosure under the Freedom of In- disclosure is not a public release of in-
formation Act and the Privacy Act. If a formation under the Freedom of Infor-
record contains both SSI and informa- mation Act.
tion that is not SSI, DOT, on a proper (h) Disclosure of Critical Infrastructure
Freedom of Information Act or Privacy Information. Disclosure of information
Act request, may disclose the record that is both SSI and has been des-
with the SSI redacted, provided the ignated as critical infrastructure infor-
record is not otherwise exempt from mation under section 214 of the Home-
disclosure under the Freedom of Infor- land Security Act is governed solely by
mation Act or Privacy Act. the requirements of section 214 and any
(c) Disclosures to committees of Con- implementing regulations.
gress and the General Accounting Office.
Nothing in this part precludes DOT § 15.17 Consequences of unauthorized
from disclosing SSI to a committee of disclosure of SSI.
Congress authorized to have the infor- Violation of this part is grounds for a
mation or to the Comptroller General, civil penalty and other enforcement or
or to any authorized representative of corrective action by DOT, and appro-

the Comptroller General. priate personnel actions for Federal
125
employees. Corrective action may in- 17.11 What are the Secretary’s obligations
clude issuance of an order requiring rein interstate situations?
trieval of SSI to remedy unauthorized 17.12 How may a state simplify, consolidate,
disclosure or an order to cease future or substitute federally required state
plans?
unauthorized disclosure.
17.13 May the Secretary waive any provi-
§ 15.19 Destruction of SSI. sion of these regulations?
(a) DOT. Subject to the requirements AUTHORITY: Executive Order 12372, July 14,
of the Federal Records Act (5 U.S.C. 1982 (47 FR 30959), as amended April 8, 1983 (48
FR 15887): sec. 401 of the Intergovernmental
105), including the duty to preserve
Cooperation Act of 1968, as amended (31
records containing documentation of a U.S.C. 6506); sec. 204 of the Demonstration
Federal agency’s policies, decisions, Cities and Metropolitan Development Act of
and essential transactions, DOT de- 1966, as amended (42 U.S.C. 3334).
stroys SSI when no longer needed to
carry out the agency’s function. SOURCE: 48 FR 29272, June 24, 1983, unless
otherwise noted.
(b) Other covered persons—(1) In gen-
eral. A covered person must destroy § 17.1 What is the purpose of these reg-
SSI completely to preclude recognition ulations?
or reconstruction of the information
when the covered person no longer (a) The regulations in this part im-
needs the SSI to carry out transpor- plement Executive Order 12372, ‘‘Inter-
tation security measures. governmental Review of Federal Pro-
(2) Exception. Paragraph (b)(1) of this grams,’’ issued July 14, 1982, and
section does not require a State or amended on April 8, 1983. These regula-
local government agency to destroy in- tions also implement applicable provi-
formation that the agency is required sions of section 401 of the Intergovern-
to preserve under State or local law. mental Cooperation Act of 1968 and sec-
tion 204 of the Demonstration Cities
PART 17—INTERGOVERNMENTAL and Metropolitan Development Act of
REVIEW OF DEPARTMENT OF 1966.
(b) These regulations are intended to
TRANSPORTATION PROGRAMS
foster an intergovernmental partner-
AND ACTIVITIES ship and a strengthened Federalism by
relying on state processes and on state,
Sec.
17.1 What is the purpose of these regula-
areawide, regional and local coordina-
tions? tion for review of proposed Federal fi-
17.2 What definitions apply to these regula- nancial assistance and direct Federal
tions? development.
17.3 What programs and activities of the (c) These regulations are intended to
Department are subject to these regula- aid the internal management of the De-
tions?
partment, and are not intended to cre-
17.4 [Reserved]
17.5 What is the Secretary’s obligation with ate any right or benefit enforceable at
respect to Federal interagency coordina- law by a party against the Department
tion? or its officers.
17.6 What procedures apply to the selection
of programs and activities under these § 17.2 What definitions apply to these
regulations? regulations?
17.7 How does the Secretary communicate
with state and local officials concerning
Department means the U.S. Depart-
the Department’s programs and activi- ment of Transportation.
ties? Order means Executive Order 12372,
17.8 How does the secretary provide states issued July 14, 1982, and amended April
an opportunity to comment on proposed 8, 1983, and titled ‘‘Intergovernmental
Federal financial assistance and direct Review of Federal Programs.’’
Federal development?
Secretary means the Secretary of the
17.9 How does the Secretary receive and re-
spond to comments? U.S. Department of Transportation or
an official or employee of the Depart-
17.10 How does the Secretary make efforts

to accommodate intergovernmental con- ment acting for the Secretary under a
cerns? delegation of authority.
126
State means any of the 50 states, the (d) The Secretary uses a state’s proc-
District of Columbia, the Common- ess as soon as feasible, depending on in-
wealth of Puerto Rico, the Common- dividual programs, and activities, after
wealth of the Northern Mariana Is- the Secretary is notified of its selec-
lands, Guam, American Samoa, the tions.
U.S. Virgin Islands, or the Trust Terri-
tory of the Pacific Islands. § 17.7 How does the Secretary commu-
nicate with state and local officials
§ 17.3 What programs and activities of concerning the Department’s pro-
the Department are subject to these grams and activities?
regulations? (a) For those programs and activities
The Secretary publishes in the FED- covered by a state process under § 17.6,
ERAL REGISTER a list of the Depart- the Secretary, to the extent permitted
ment’s programs and activities that by law:
are subject to these regulations and (1) Uses the state process to deter-
identifies which of these are subject to mine views of state and local elected
the requirements of section 204 of the officials; and,
Demonstration Cities and Metropolitan (2) Communicates with state and
Development Act. local elected officials, through the
state process, as early in a program
§ 17.4 [Reserved] planning cycle as is reasonably feasible
to explain specific plans and actions.
§ 17.5 What is the Secretary’s obliga- (b) The Secretary provides notice to
tion with respect to Federal inter- directly affected state, areawide, re-
agency coordination? gional, and local entities in a state of
The Secretary, to the extent prac- proposed Federal financial assistance
ticable, consults with and seeks advice or direct Federal development if:
from all other substantially affected (1) The state has not adopted a proc-
Federal departments and agencies in ess under the Order; or
an effort to assure full coordination be- (2) The assistance or development in-
tween such agencies and the Depart- volves a program or activity not se-
ment regarding programs and activi- lected for the state process.
ties covered under these regulations. This notice may be made by publica-
§ 17.6 What procedures apply to the se- tion in the FEDERAL REGISTER or other
lection of programs and activities appropriate means, which the Depart-
under these regulations? ment in its discretion deems appro-
priate.
(a) A state may select any program
or activity published in the FEDERAL § 17.8 How does the Secretary provide
REGISTER in accordance with § 17.3 of states an opportunity to comment
this part for intergovernmental review on proposed Federal financial as-
under these regulations. Each state, sistance and direct Federal devel-
before selecting programs and activi- opment?
ties shall consult with local elected of- (a) Except in unusual circumstances,
ficials. the Secretary gives state processes or
(b) Each state that adopts a process state, areawide, regional and local offi-
shall notify the Secretary of the De- cials and entities at least:
partment’s programs and activities se- (1) [Reserved]
lected for that process. (2) 60 days from the date established
(c) A state may notify the Secretary by the Secretary to comment on pro-
of changes in its selections at any posed direct Federal development or
time. For each change, the state shall Federal financial assistance.
submit to the Secretary an assurance (b) This section also applies to com-
that the state has consulted with elect- ments in cases in which the review, co-
ed local elected officials regarding the ordination, and communication with
change. The Department may establish the Department have been delegated.
deadlines by which states are required (c) Applicants for programs and ac-
to inform the Secretary of changes in tivities subject to section 204 of the

their program selections. Demonstration Cities and Metropolitan
127
Act shall allow areawide agencies a 60- § 17.10 How does the Secretary make
day opportunity for review and com- efforts to accommodate intergov-
ment. ernmental concerns?
(a) If a state process provides a state
§ 17.9 How does the Secretary receive process recommendation to the Depart-
and respond to comments? ment through its single point of con-
(a) The Secretary follows the proce- tact, the Secretary either:
dures in § 17.10 if: (1) Accepts the recommendation;
(1) A state office or official is des- (2) Reaches a mutually agreeable so-
ignated to act as a single point of con- lution with the state process; or
tact between a state process and all (3) Provides the single point of con-
tact with a written explanation of the
federal agencies, and
decision, in such form as the Secretary
(2) That office or official transmits a
in his or her discretion deems appro-
state process recommendation for a priate. The Secretary may also supple-
program selected under § 17.6. ment the written explanation by pro-
(b)(1) The single point of contact is viding the explanation to the single
not obligated to transmit comments point of contact by telephone, other
from state, areawide, regional or local telecommunication, or other means.
officials and entities where there is no (b) In any explanation under para-
state process recommendation. graph (a)(3) of this section, the Sec-
(2) If a state process recommendation retary informs the single point of con-
is transmitted by a single point of contact that:
tact, all comments from state, (1) The Department will not imple-
areawide, regional, and local officials ment its decision for at least ten days
and entities that differ from it must after the single point of contact re-
also be transmitted. ceives the explanation; or
(c) If a state has not established a (2) The Secretary has reviewed the
process, or is unable to submit a state decision and determined that, because
process recommendation, state, of unusual circumstances, the waiting
period of at least ten days is not fea-
areawide, regional and local officials
sible.
and entities may submit comments ei-
(c) For purposes of computing the
ther to the applicant or to the Depart- waiting period under paragraph (b)(1)
ment. of this section, a single point of con-
(d) If a program or activity is not se- tact is presumed to have received writ-
lected for a state process, state, ten notification 5 days after the date of
areawide, regional and local officials mailing of such notification.
and entities may submit comments ei-
ther to the applicant or to the Depart- § 17.11 What are the Secretary’s obliga-
ment. In addition, if a state process tions in interstate situations?
recommendation for a nonselected pro- (a) The Secretary is responsible for:
gram or activity is transmitted to the (1) Identifying proposed federal finan-
Department by the single point of con- cial assistance and direct federal devel-
tact, the Secretary follows the proce- opment that have an impact on inter-
dures of § 17.10 of this part. state areas;
(e) The Secretary considers com- (2) Notifying appropriate officials
ments which do not constitute a state and entities in states which have
process recommendation submitted adopted a process and which select the
under these regulations and for which Department’s program or activity.
(3) Making efforts to identify and no-
the Secretary is not required to apply
tify the affected state, areawide, re-
the procedures of § 17.10 of this part,
gional, and local officials and entities
when such comments are provided by a in those states that have not adopted a
single point of contact, by the appli- process under the Order or do not se-
cant, or directly to the Department by lect the Department’s program or ac-
a commenting party. tivity;
(4) Responding pursuant to § 17.10 of

this part if the Secretary receives a
128
recommendation from a designated Subpart B—Activities by Own Employees

areawide agency transmitted by a sin-
20.200 Agency and legislative liaison.
gle point of contact, in cases in which
20.205 Professional and technical services.
the review, coordination, and commu- 20.210 Reporting.
nication with the Department have
been delegated. Subpart C—Activities by Other Than Own
(b) The Secretary uses the procedures Employees
in § 17.10 if a state process provides a
state process recommendation to the 20.300 Professional and technical services.
Department through a single point of Subpart D—Penalties and Enforcement
contact.
20.400 Penalties.
§ 17.12 How may a state simplify, con- 20.405 Penalty procedures.
solidate, or substitute federally re- 20.410 Enforcement.
quired state plans?
(a) As used in this section: Subpart E—Exemptions
(1) Simplify means that a state may 20.500 Secretary of Defense.
develop its own format, choose its own
submission date, and select the plan- Subpart F—Agency Reports
ning period for a state plan.
20.600 Semi-annual compilation.
(2) Consolidate means that a state 20.605 Inspector General report.
may meet statutory and regulatory re-
APPENDIX A TO PART 20—CERTIFICATION RE-
quirements by combining two or more GARDING LOBBYING
plans into one document and that the APPENDIX B TO PART 20—DISCLOSURE FORM
state can select the format, submission TO REPORT LOBBYING
date, and planning period for the con- AUTHORITY: Sec. 319, Public Law 101–121 (31
solidated plan. U.S.C. 1352); 49 U.S.C. 322(a).
(3) Substitute means that a state may
use a plan or other document that it SOURCE: 55 FR 6737, 6756, Feb. 26, 1990, un-
less otherwise noted.
has developed for its own purposes to
meet Federal requirements. CROSS REFERENCE: See also Office of Man-
(b) If not inconsistent with law, a agement and Budget notice published at 54
state may decide to try to simplify, FR 52306, December 20, 1989.
consolidate, or substitute federally re-
quired state plans without prior ap- Subpart A—General
proval by the Secretary.
(c) The Secretary reviews each state § 20.100 Conditions on use of funds.
plan that a state has simplified, con- (a) No appropriated funds may be ex-
solidated, or substituted and accepts pended by the recipient of a Federal
the plan only if its contents meet fed- contract, grant, loan, or cooperative
eral requirements. ageement to pay any person for influ-
encing or attempting to influence an
§ 17.13 May the Secretary waive any officer or employee of any agency, a
provision of these regulations? Member of Congress, an officer or em-
In an emergency, the Secretary may ployee of Congress, or an employee of a
waive any provision of these regula- Member of Congress in connection with
tions. any of the following covered Federal
actions: the awarding of any Federal
PARTS 18–19 [RESERVED] contract, the making of any Federal
grant, the making of any Federal loan,
the entering into of any cooperative
PART 20—NEW RESTRICTIONS ON agreement, and the extension, continu-
LOBBYING ation, renewal, amendment, or modi-
fication of any Federal contract, grant,
Subpart A—General loan, or cooperative agreement.
Sec. (b) Each person who requests or re-
ceives from an agency a Federal con-
20.100 Conditions on use of funds.

20.105 Definitions. tract, grant, loan, or cooperative
20.110 Certification and disclosure. agreement shall file with that agency a
129
certification, set forth in appendix A, (4) The entering into of any coopera-
that the person has not made, and will tive agreement; and,
not make, any payment prohibited by (5) The extension, continuation, re-
paragraph (a) of this section. newal, amendment, or modification of
(c) Each person who requests or re- any Federal contract, grant, loan, or
ceives from an agency a Federal con- cooperative agreement.
tract, grant, loan, or a cooperative Covered Federal action does not in-
agreement shall file with that agency a clude receiving from an agency a com-
disclosure form, set forth in appendix mitment providing for the United
B, if such person has made or has States to insure or guarantee a loan.
agreed to make any payment using Loan guarantees and loan insurance
nonappropriated funds (to include prof- are addressed independently within
its from any covered Federal action), this part.
which would be prohibited under para- (c) Federal contract means an acquisi-
graph (a) of this section if paid for with tion contract awarded by an agency,
appropriated funds. including those subject to the Federal
(d) Each person who requests or re- Acquisition Regulation (FAR), and any
ceives from an agency a commitment other acquisition contract for real or
providing for the United States to in- personal property or services not sub-
sure or guarantee a loan shall file with ject to the FAR.
that agency a statement, set forth in (d) Federal cooperative agreement
appendix A, whether that person has means a cooperative agreement en-
made or has agreed to make any pay- tered into by an agency.
ment to influence or attempt to influ-
(e) Federal grant means an award of
ence an officer or employee of any
financial assistance in the form of
agency, a Member of Congress, an offi-
money, or property in lieu of money,
cer or employee of Congress, or an em-
by the Federal Government or a direct
ployee of a Member of Congress in con-
appropriation made by law to any per-
nection with that loan insurance or
son. The term does not include tech-
guarantee.
nical assistance which provides serv-
(e) Each person who requests or re- ices instead of money, or other assist-
ceives from an agency a commitment ance in the form of revenue sharing,
providing for the United States to in- loans, loan guarantees, loan insurance,
sure or guarantee a loan shall file with interest subsidies, insurance, or direct
that agency a disclosure form, set forth United States cash assistance to an in-
in appendix B, if that person has made dividual.
or has agreed to make any payment to
(f) Federal loan means a loan made by
influence or attempt to influence an of-
an agency. The term does not include
ficer or employee of any agency, a
loan guarantee or loan insurance.
Member of Congress, an officer or em-
ployee of Congress, or an employee of a (g) Indian tribe and tribal organization
Member of Congress in connection with have the meaning provided in section 4
that loan insurance or guarantee. of the Indian Self-Determination and
Education Assistance Act (25 U.S.C.
§ 20.105 Definitions. 450B). Alaskan Natives are included
under the definitions of Indian tribes in
For purposes of this part: that Act.
(a) Agency, as defined in 5 U.S.C. (h) Influencing or attempting to influ-
552(f), includes Federal executive de- ence means making, with the intent to
partments and agencies as well as inde- influence, any communication to or ap-
pendent regulatory commissions and pearance before an officer or employee
Government corporations, as defined in or any agency, a Member of Congress,
31 U.S.C. 9101(1). an officer or employee of Congress, or
(b) Covered Federal action means any an employee of a Member of Congress
of the following Federal actions: in connection with any covered Federal
(1) The awarding of any Federal con- action.
tract; (i) Loan guarantee and loan insurance
(2) The making of any Federal grant; means an agency’s guarantee or insur-
(3) The making of any Federal loan; ance of a loan made by a person.
130
(j) Local government means a unit of erative agreement. The term excludes
government in a State and, if char- an Indian tribe, tribal organization, or
tered, established, or otherwise recog- any other Indian organization with re-
nized by a State for the performance of spect to expenditures specifically per-
a governmental duty, including a local mitted by other Federal law.
public authority, a special district, an (p) Regularly employed means, with
intrastate district, a council of govern- respect to an officer or employee of a
ments, a sponsor group representative person requesting or receiving a Fed-
organization, and any other instrumen- eral contract, grant, loan, or coopera-
tality of a local government. tive agreement or a commitment pro-
(k) Officer or employee of an agency in- viding for the United States to insure
cludes the following individuals who or guarantee a loan, an officer or em-
are employed by an agency:
ployee who is employed by such person
(1) An individual who is appointed to
for at least 130 working days within
a position in the Government under
one year immediately preceding the
title 5, U.S. Code, including a position
date of the submission that initiates
under a temporary appointment;
agency consideration of such person for
(2) A member of the uniformed serv-
ices as defined in section 101(3), title 37, receipt of such contract, grant, loan,
U.S. Code; cooperative agreement, loan insurance
(3) A special Government employee commitment, or loan guarantee com-
as defined in section 202, title 18, U.S. mitment. An officer or employee who is
Code; and, employed by such person for less than
(4) An individual who is a member of 130 working days within one year im-
a Federal advisory committee, as de- mediately preceding the date of the
fined by the Federal Advisory Com- submission that initiates agency con-
mittee Act, title 5, U.S. Code appendix sideration of such person shall be con-
2. sidered to be regularly employed as
(l) Person means an individual, cor- soon as he or she is employed by such
poration, company, association, au- person for 130 working days.
thority, firm, partnership, society, (q) State means a State of the United
State, and local government, regard- States, the District of Columbia, the
less of whether such entity is operated Commonwealth of Puerto Rico, a terri-
for profit or not for profit. This term tory or possession of the United States,
excludes an Indian tribe, tribal organi- an agency or instrumentality of a
zation, or any other Indian organiza- State, and a multi-State, regional, or
tion with respect to expenditures spe- interstate entity having governmental
cifically permitted by other Federal duties and powers.
law.
(m) Reasonable compensation means, § 20.110 Certification and disclosure.
with respect to a regularly employed (a) Each person shall file a certifi-
officer or employee of any person, com- cation, and a disclosure form, if re-
pensation that is consistent with the quired, with each submission that ini-
normal compensation for such officer tiates agency consideration of such
or employee for work that is not fur- person for:
nished to, not funded by, or not fur-
(1) Award of a Federal contract,
nished in cooperation with the Federal
grant, or cooperative agreement ex-
Government.
(n) Reasonable payment means, with ceeding $100,000; or
respect to perfessional and other tech- (2) An award of a Federal loan or a
nical services, a payment in an amount commitment providing for the United
that is consistent with the amount nor- States to insure or guarantee a loan
mally paid for such services in the pri- exceeding $150,000.
vate sector. (b) Each person shall file a certifi-
(o) Recipient includes all contractors, cation, and a disclosure form, if re-
subcontractors at any tier, and sub- quired, upon receipt by such person of:
grantees at any tier of the recipient of (1) A Federal contract, grant, or co-
funds received in connection with a operative agreement exceeding $100,000;

Federal contract, grant, loan, or coop- or
131
(2) A Federal loan or a commitment arising from an erroneous representa-

providing for the United States to in- tion shall be borne solely by the tier
sure or guarantee a loan exceeding filing that representation and shall not
$150,000, be shared by any tier to which the er-
Unless such person previously filed a roneous representation is forwarded.
certification, and a disclosure form, if Submitting an erroneous certification
required, under paragraph (a) of this or disclosure constitutes a failure to
section. file the required certification or disclo-
(c) Each person shall file a disclosure sure, respectively. If a person fails to
form at the end of each calendar quar- file a required certification or disclo-
ter in which there occurs any event sure, the United States may pursue all
that requires disclosure or that materi- available remedies, including those au-
ally affects the accuracy of the infor- thorized by section 1352, title 31, U.S.
mation contained in any disclosure Code.
form previously filed by such person (g) For awards and commitments in
under paragraphs (a) or (b) of this sec- process prior to December 23, 1989, but
tion. An event that materially affects not made before that date, certifi-
the accuracy of the information re- cations shall be required at award or
ported includes: commitment, covering activities oc-
(1) A cumulative increase of $25,000 or curring between December 23, 1989, and
more in the amount paid or expected to the date of award or commitment.
be paid for influencing or attempting However, for awards and commitments
to influence a covered Federal action; in process prior to the December 23,
or 1989 effective date of these provisions,
(2) A change in the person(s) or indi- but not made before December 23, 1989,
vidual(s) influencing or attempting to disclosure forms shall not be required
influence a covered Federal action; or, at time of award or commitment but
(3) A change in the officer(s), em- shall be filed within 30 days.
ployee(s), or Member(s) contacted to (h) No reporting is required for an ac-
influence or attempt to influence a tivity paid for with appropriated funds
covered Federal action. if that activity is allowable under ei-
(d) Any person who requests or re- ther subpart B or C.
ceives from a person referred to in
paragraphs (a) or (b) of this section: Subpart B—Activities by Own
(1) A subcontract exceeding $100,000 Employees
at any tier under a Federal contract;
(2) A subgrant, contract, or sub- § 20.200 Agency and legislative liaison.
contract exceeding $100,000 at any tier (a) The prohibition on the use of ap-
under a Federal grant; propriated funds, in § 20.100 (a), does
(3) A contract or subcontract exceed- not apply in the case of a payment of
ing $100,000 at any tier under a Federal reasonable compensation made to an
loan exceeding $150,000; or, officer or employee of a person request-
(4) A contract or subcontract exceeding or receiving a Federal contract,
ing $100,000 at any tier under a Federal grant, loan, or cooperative agreement
cooperative agreement, if the payment is for agency and legis-
Shall file a certification, and a disclo- lative liaison activities not directly re-
sure form, if required, to the next tier lated to a covered Federal action.
above. (b) For purposes of paragraph (a) of
(e) All disclosure forms, but not cer- this section, providing any information
tifications, shall be forwarded from specifically requested by an agency or
tier to tier until received by the person Congress is allowable at any time.
referred to in paragraphs (a) or (b) of (c) For purposes of paragraph (a) of
this section. That person shall forward this section, the following agency and
all disclosure forms to the agency. legislative liaison activities are allow-
(f) Any certification or disclosure able at any time only where they are
form filed under paragraph (e) of this not related to a specific solicitation for
section shall be treated as a material any covered Federal action:
representation of fact upon which all (1) Discussing with an agency (in-
receiving tiers shall rely. All liability cluding individual demonstrations) the
132
qualities and characteristics of the per- vice and analysis directly applying any
son’s products or services, conditions professional or technical discipline.
or terms of sale, and service capabili- For example, drafting of a legal docu-
ties; and, ment accompanying a bid or proposal
(2) Technical discussions and other by a lawyer is allowable. Similarly,
activities regarding the application or technical advice provided by an engi-
adaptation of the person’s products or neer on the performance or operational
services for an agency’s use. capability of a piece of equipment ren-
(d) For purposes of paragraph (a) of dered directly in the negotiation of a
this section, the following agencies and contract is allowable. However, com-
legislative liaison activities are allow- munications with the intent to influ-
able only where they are prior to for- ence made by a professional (such as a
mal solicitation of any covered Federal licensed lawyer) or a technical person
action: (such as a licensed accountant) are not
(1) Providing any information not allowable under this section unless
specifically requested but necessary for they provide advice and analysis di-
an agency to make an informed deci- rectly applying their professional or
sion about initiation of a covered Fed- technical expertise and unless the ad-
eral action; vice or analysis is rendered directly
(2) Technical discussions regarding and solely in the preparation, submis-
the preparation of an unsolicited pro- sion or negotiation of a covered Fed-
posal prior to its official submission; eral action. Thus, for example, commu-
and, nications with the intent to influence
(3) Capability presentations by per- made by a lawyer that do not provide
sons seeking awards from an agency legal advice or analysis directly and
pursuant to the provisions of the Small solely related to the legal aspects of
Business Act, as amended by Public his or her client’s proposal, but gen-
Law 95–507 and other subsequent erally advocate one proposal over an-
amendments. other are not allowable under this sec-
(e) Only those activities expressly au- tion because the lawyer is not pro-
thorized by this section are allowable viding professional legal services.
under this section. Similarly, communications with the
§ 20.205 Professional and technical intent to influence made by an engi-
services. neer providing an engineering analysis
prior to the preparation or submission
(a) The prohibition on the use of ap- of a bid or proposal are not allowable
propriated funds, in § 20.100 (a), does under this section since the engineer is
not apply in the case of a payment of providing technical services but not di-
reasonable compensation made to an rectly in the preparation, submission
officer or employee of a person request- or negotiation of a covered Federal ac-
ing or receiving a Federal contract,
tion.
grant, loan, or cooperative agreement
(c) Requirements imposed by or pur-
or an extension, continuation, renewal,
suant to law as a condition for receiv-
amendment, or modification of a Fed-
eral contract, grant, loan, or coopera- ing a covered Federal award include
tive agreement if payment is for pro- those required by law or regulation, or
fessional or technical services rendered reasonably expected to be required by
directly in the preparation, submis- law or regulation, and any other re-
sion, or negotiation of any bid, pro- quirements in the actual award docu-
posal, or application for that Federal ments.
contract, grant, loan, or cooperative (d) Only those services expressly au-
agreement or for meeting requirements thorized by this section are allowable
imposed by or pursuant to law as a under this section.
condition for receiving that Federal
contract, grant, loan, or cooperative § 20.210 Reporting.
agreement. No reporting is required with respect
(b) For purposes of paragraph (a) of to payments of reasonable compensa-
this section, ‘‘professional and tech- tion made to regularly employed offi-
nical services’’ shall be limited to ad- cers or employees of a person.
133
Subpart C—Activities by Other his or her client’s proposal, but gen-

Than Own Employees erally advocate one proposal over an-
other are not allowable under this sec-
§ 20.300 Professional and technical tion because the lawyer is not pro-
services. viding professional legal services.
(a) The prohibition on the use of ap- Similarly, communications with the
propriated funds, in § 20.100 (a), does intent to influence made by an engi-
not apply in the case of any reasonable neer providing an engineering analysis
payment to a person, other than an of- prior to the preparation or submission
ficer or employee of a person request- of a bid or proposal are not allowable
ing or receiving a covered Federal ac- under this section since the engineer is
tion, if the payment is for professional providing technical services but not di-
or technical services rendered directly rectly in the preparation, submission
in the preparation, submission, or ne- or negotiation of a covered Federal ac-
gotiation of any bid, proposal, or appli- tion.
cation for that Federal contract, grant, (d) Requirements imposed by or pur-
loan, or cooperative agreement or for suant to law as a condition for receiv-
meeting requirements imposed by or ing a covered Federal award include
pursuant to law as a condition for re- those required by law or regulation, or
ceiving that Federal contract, grant, reasonably expected to be required by
loan, or cooperative agreement. law or regulation, and any other re-
(b) The reporting requirements in quirements in the actual award docu-
§ 20.110 (a) and (b) regarding filing a dis- ments.
closure form by each person, if re- (e) Persons other than officers or em-
quired, shall not apply with respect to ployees of a person requesting or re-
professional or technical services ren- ceiving a covered Federal action in-
dered directly in the preparation, sub- clude consultants and trade associa-
mission, or negotiation of any commit- tions.
ment providing for the United States (f) Only those services expressly au-
to insure or guarantee a loan. thorized by this section are allowable
(c) For purposes of paragraph (a) of under this section.
this section, ‘‘professional and tech-
nical services’’ shall be limited to ad- Subpart D—Penalties and
vice and analysis directly applying any Enforcement
professional or technical discipline.
For example, drafting or a legal docu- § 20.400 Penalties.
ment accompanying a bid or proposal (a) Any person who makes an expend-
by a lawyer is allowable. Similarly, iture prohibited herein shall be subject
technical advice provided by an engi- to a civil penalty of not less than
neer on the performance or operational $10,000 and not more than $100,000 for
capability of a piece of equipment ren- each such expenditure.
dered directly in the negotiation of a (b) Any person who fails to file or
contract is allowable. However, com- amend the disclosure form (see appen-
munications with the intent to influ- dix B) to be filed or amended if re-
ence made by a professional (such as a quired herein, shall be subject to a civil
licensed lawyer) or a technical person penalty of not less than $10,000 and not
(such as a licensed accountant) are not more than $100,000 for each such fail-
allowable under this section unless ure.
they provide advice and analysis di- (c) A filing or amended filing on or
rectly applying their professional or after the date on which an administra-
technical expertise and unless the ad- tive action for the imposition of a civil
vice or analysis is rendered directly penalty is commenced does not prevent
and solely in the preparation, submis- the imposition of such civil penalty for
sion or negotiation of a covered Fed- a failure occurring before that date. An
eral action. Thus, for example, commu- administrative action is commenced
nications with the intent to influence with respect to a failure when an inves-
made by a lawyer that do not provide tigating official determines in writing
legal advice or analysis directly and to commence an investigation of an al-

solely related to the legal aspects of legation of such failure.
134
(d) In determining whether to impose (b) The Department of Defense may

a civil penalty, and the amount of any issue supplemental regulations to im-
such penalty, by reason of a violation plement paragraph (a) of this section.
by any person, the agency shall con-
sider the nature, circumstances, ex- Subpart F—Agency Reports
tent, and gravity of the violation, the
effect on the ability of such person to § 20.600 Semi-annual compilation.
continue in business, any prior viola- (a) The head of each agency shall col-
tions by such person, the degree of cul- lect and compile the disclosure reports
pability of such person, the ability of (see appendix B) and, on May 31 and
the person to pay the penalty, and such November 30 of each year, submit to
other matters as may be appropriate. the Secretary of the Senate and the
(e) First offenders under paragraphs Clerk of the House of Representatives a
(a) or (b) of this section shall be subject report containing a compilation of the
to a civil penalty of $10,000, absent ag- information contained in the disclo-
gravating circumstances. Second and sure reports received during the six-
subsequent offenses by persons shall be month period ending on March 31 or
subject to an appropriate civil penalty September 30, respectively, of that
between $10,000 and $100,000, as deter- year.
mined by the agency head or his or her (b) The report, including the com-
designee. pilation, shall be available for public
(f) An imposition of a civil penalty inspection 30 days after receipt of the
under this section does not prevent the report by the Secretary and the Clerk.
United States from seeking any other (c) Information that involves intel-
remedy that may apply to the same ligence matters shall be reported only
conduct that is the basis for the impo- to the Select Committee on Intel-
sition of such civil penalty. ligence of the Senate, the Permanent
Select Committee on Intelligence of
§ 20.405 Penalty procedures. the House of Representatives, and the
Agencies shall impose and collect Committees on Appropriations of the
civil penalties pursuant to the provi- Senate and the House of Representa-
sions of the Program Fraud and Civil tives in accordance with procedures
Remedies Act, 31 U.S.C. sections 3803 agreed to by such committees. Such in-
(except subsection (c)), 3804, 3805, 3806, formation shall not be available for
3807, 3808, and 3812, insofar as these pro- public inspection.
visions are not inconsistent with the (d) Information that is classified
requirements herein. under Executive Order 12356 or any suc-
cessor order shall be reported only to
§ 20.410 Enforcement. the Committee on Foreign Relations of
the Senate and the Committee on For-
The head of each agency shall take
eign Affairs of the House of Represent-
such actions as are necessary to ensure
atives or the Committees on Armed
that the provisions herein are vigor-
Services of the Senate and the House of
ously implemented and enforced in
Representatives (whichever such com-
that agency.
mittees have jurisdiction of matters
involving such information) and to the
Subpart E—Exemptions Committees on Appropriations of the
Senate and the House of Representa-
§ 20.500 Secretary of Defense. tives in accordance with procedures
(a) The Secretary of Defense may ex- agreed to by such committees. Such in-
empt, on a case-by-case basis, a cov- formation shall not be available for
ered Federal action from the prohibi- public inspection.
tion whenever the Secretary deter- (e) The first semi-annual compilation
mines, in writing, that such an exemp- shall be submitted on May 31, 1990, and
tion is in the national interest. The shall contain a compilation of the dis-
Secretary shall transmit a copy of each closure reports received from Decem-
such written exemption to Congress ber 23, 1989 to March 31, 1990.
immediately after making such a de- (f) Major agencies, designated by the
termination. Office of Management and Budget
135
(OMB), are required to provide ma- APPENDIX A TO PART 20—CERTIFICATION

chine-readable compilations to the REGARDING LOBBYING
Secretary of the Senate and the Clerk Certification for Contracts, Grants, Loans, and
of the House of Representatives no Cooperative Agreements
later than with the compilations due
The undersigned certifies, to the best of his
on May 31, 1991. OMB shall provide de- or her knowledge and belief, that:
tailed specifications in a memorandum (1) No Federal appropriated funds have
to these agencies. been paid or will be paid, by or on behalf of
(g) Non-major agencies are requested the undersigned, to any person for influ-
to provide machine-readable compila- encing or attempting to influence an officer
or employee of an agency, a Member of Con-
tions to the Secretary of the Senate gress, an officer or employee of Congress, or
and the Clerk of the House of Rep- an employee of a Member of Congress in con-
resentatives. nection with the awarding of any Federal
(h) Agencies shall keep the originals contract, the making of any Federal grant,
of all disclosure reports in the official the making of any Federal loan, the entering
into of any cooperative agreement, and the
files of the agency. extension, continuation, renewal, amend-
ment, or modification of any Federal con-
§ 20.605 Inspector General report. tract, grant, loan, or cooperative agreement.
(a) The Inspector General, or other (2) If any funds other than Federal appro-
priated funds have been paid or will be paid
official as specified in paragraph (b) of
to any person for influencing or attempting
this section, of each agency shall pre- to influence an officer or employee of any
pare and submit to Congress each year, agency, a Member of Congress, an officer or
commencing with submission of the employee of Congress, or an employee of a
President’s Budget in 1991, an evalua- Member of Congress in connection with this
tion of the compliance of that agency Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete
with, and the effectiveness of, the re- and submit Standard Form-LLL, ‘‘Disclosure
quirements herein. The evaluation may Form to Report Lobbying,’’ in accordance
include any recommended changes that with its instructions.
may be necessary to strengthen or im- (3) The undersigned shall require that the
prove the requirements. language of this certification be included in
the award documents for all subawards at all
(b) In the case of an agency that does
tiers (including subcontracts, subgrants, and
not have an Inspector General, the contracts under grants, loans, and coopera-
agency official comparable to an In- tive agreements) and that all subrecipients
spector General shall prepare and sub- shall certify and disclose accordingly.
mit the annual report, or, if there is no This certification is a material representa-
such comparable official, the head of tion of fact upon which reliance was placed
when this transaction was made or entered
the agency shall prepare and submit into. Submission of this certification is a
the annual report. prerequisite for making or entering into this
(c) The annual report shall be sub- transaction imposed by section 1352, title 31,
mitted at the same time the agency U.S. Code. Any person who fails to file the
submits its annual budget justifica- required certification shall be subject to a
civil penalty of not less than $10,000 and not
tions to Congress.
more than $100,000 for each such failure.
(d) The annual report shall include
the following: All alleged violations re- Statement for Loan Guarantees and Loan
lating to the agency’s covered Federal Insurance
actions during the year covered by the The undersigned states, to the best of his
report, the actions taken by the head or her knowledge and belief, that:
of the agency in the year covered by If any funds have been paid or will be paid
to any person for influencing or attempting
the report with respect to those alleged to influence an officer or employee of any
violations and alleged violations in agency, a Member of Congress, an officer or
previous years, and the amounts of employee of Congress, or an employee of a
civil penalties imposed by the agency Member of Congress in connection with this
in the year covered by the report. commitment providing for the United States
to insure or guarantee a loan, the under-
signed shall complete and submit Standard

Form-LLL, ‘‘Disclosure Form to Report Lob-
bying,’’ in accordance with its instructions.
136
Submission of this statement is a pre- required statement shall be subject to a civil
requisite for making or entering into this penalty of not less than $10,000 and not more
transaction imposed by section 1352, title 31, than $100,000 for each such failure.
U.S. Code. Any person who fails to file the
137
Pt. 20, App. B 49 CFR Subtitle A (10–1–19 Edition)
APPENDIX B TO PART 20—DISCLOSURE FORM TO REPORT LOBBYING

138
EC02FE91.097</GPH>
Office of the Secretary of Transportation Pt. 20, App. B
139
EC02FE91.098</GPH>
140
EC02FE91.099</GPH>
PART 21—NONDISCRIMINATION IN proved before that effective date. This

FEDERALLY-ASSISTED PROGRAMS part does not apply to:
OF THE DEPARTMENT OF TRANS- (1) Any Federal financial assistance
by way of insurance or guaranty con-
PORTATION—EFFECTUATION OF
tracts;
TITLE VI OF THE CIVIL RIGHTS ACT (2) Money paid, property transferred,
OF 1964 or other assistance extended before the
effective date of this part, except
Sec.
21.1 Purpose.
where such assistance was subject to
21.3 Application of this part. the title VI regulations of any agency
21.5 Discrimination prohibited. whose responsibilities are now exer-
21.7 Assurances required. cised by this Department;
21.9 Compliance information. (3) Any assistance to any individual
21.11 Conduct of investigations. who is the ultimate beneficiary; or
21.13 Procedure for effecting compliance.
21.15 Hearings. (4) Any employment practice, under
21.17 Decisions and notices. any such program, of any employer,
21.19 Judicial review. employment agency, or labor organiza-
21.21 Effect on other regulations, forms, and tion, except to the extent described in
instructions. § 21.5(c).
21.23 Definitions.
The fact that a type of Federal finan-
APPENDIX A TO PART 21—ACTIVITIES TO WHICH
THIS PART APPLIES cial assistance is not listed in appendix
APPENDIX B TO PART 21—ACTIVITIES TO WHICH A to this part shall not mean, if title
THIS PART APPLIES WHEN A PRIMARY OB- VI of the Act is otherwise applicable,
JECTIVE OF THE FEDERAL FINANCIAL AS- that a program is not covered. Other
SISTANCE IS TO PROVIDE EMPLOYMENT types of Federal financial assistance
APPENDIX C TO PART 21—APPLICATION OF under statutes now in force or herein-
PART 21 TO CERTAIN FEDERAL FINANCIAL
after enacted may be added to appendix
ASSISTANCE OF THE DEPARTMENT OF
TRANSPORTATION A to this part.
(b) In any program receiving Federal
AUTHORITY: 42 U.S.C. 2000d–2000d–6.
financial assistance in the form, or for
SOURCE: 35 FR 10080, June 18, 1970, unless the acquisition, of real property or an
otherwise noted. interest in real property, to the extent
that rights to space on, over, or under
§ 21.1 Purpose.
any such property are included as part
The purpose of this part is to effec- of the program receiving that assist-
tuate the provisions of title VI of the ance, the nondiscrimination require-
Civil Rights Act of 1964 (hereafter re- ment of this part shall extend to any
ferred to as the Act) to the end that no facility located wholly or in part in
person in the United States shall, on that space.
the grounds of race, color, or national
origin, be excluded from participation [35 FR 10080, June 18, 1970, as amended at 68
in, be denied the benefits of, or be oth- FR 51389, Aug. 26, 2003]
erwise subjected to discrimination
§ 21.5 Discrimination prohibited.
under any program or activity receiv-
ing Federal financial assistance from (a) General. No person in the United
the Department of Transportation. States shall, on the grounds of race,
color, or national origin be excluded
§ 21.3 Application of this part. from participation in, be denied the
(a) This part applies to any program benefits of, or be otherwise subjected
for which Federal financial assistance to discrimination under, any program
is authorized under a law administered to which this part applies.
by the Department, including the types (b) Specific discriminatory actions
of Federal financial assistance listed in prohibited:
appendix A to this part. It also applies (1) A recipient to which this part ap-
to money paid, property transferred, or plies may not, directly or through con-
other Federal financial assistance ex- tractual or other arrangements, on the
tended after the effective date of this grounds of race, color, or national ori-
part pursuant to an application ap- gin.
141
(i) Deny a person any service, finan- cant may not make selections with the
cial aid, or other benefit provided purpose or effect of excluding persons
under the program; from, denying them the benefits of, or
(ii) Provide any service, financial aid, subjecting them to discrimination
or other benefit to a person which is under any program to which this regu-
different, or is provided in a different lation applies, on the grounds of race,
manner, from that provided to others color, or national origin; or with the
under the program; purpose or effect of defeating or sub-
(iii) Subject a person to segregation stantially impairing the accomplish-
or separate treatment in any matter ment of the objectives of the Act or
related to his receipt of any service, fi- this part.
nancial aid, or other benefit under the (4) As used in this section the serv-
program; ices, financial aid, or other benefits
(iv) Restrict a person in any way in provided under a program receiving
the enjoyment of any advantage or Federal financial assistance include
privilege enjoyed by others receiving any service, financial aid, or other ben-
any service, financial aid, or other benefit provided in or through a facility
efit under the program; provided with the aid of Federal finan-
(v) Treat a person differently from cial assistance.
others in determining whether he satis- (5) The enumeration of specific forms
fies any admission, enrollment, quota, of prohibited discrimination in this
eligibility, membership, or other re- paragraph does not limit the generality
quirement or condition which persons
of the prohibition in paragraph (a) of
must meet in order to be provided any
this section.
service, financial aid, or other benefit
(6) Examples demonstrating the ap-
provided under the program;
(vi) Deny a person an opportunity to plication of the provisions of this sec-
participate in the program through the tion to certain types of Federal finan-
provision of services or otherwise or af- cial assistance administered by the De-
ford him an opportunity to do so which partment of Transportation are con-
is different from that afforded others tained in appendix C of this part.
under the program; or (7) This part does not prohibit the
(vii) Deny a person the opportunity consideration of race, color, or na-
to participate as a member of a plan- tional origin if the purpose and effect
ning, advisory, or similar body which is are to remove or overcome the con-
an integral part of the program. sequences of practices or impediments
(2) A recipient, in determining the which have restricted the availability
types of services, financial aid, or other of, or participation in, the program or
benefits, or facilities which will be pro- activity receiving Federal financial as-
vided under any such program, or the sistance, on the grounds of race, color,
class of person to whom, or the situa- or national origin. Where prior dis-
tions in which, such services, financial criminatory practice or usage tends, on
aid, other benefits, or facilities will be the grounds of race, color, or national
provided under any such program, or origin to exclude individuals from par-
the class of persons to be afforded an ticipation in, to deny them the benefits
opportunity to participate in any such of, or to subject them to discrimina-
program; may not, directly or through tion under any program or activity to
contractual or other arrangements, which this part applies, the applicant
utilize criteria or methods of adminis- or recipient must take affirmative ac-
tration which have the effect of sub- tion to remove or overcome the effects
jecting persons to discrimination be- of the prior discriminatory practice or
cause of their race, color, or national usage. Even in the absence of prior dis-
origin, or have the effect of defeating criminatory practice or usage, a recipi-
or substantially impairing accomplish- ent in administering a program or ac-
ment of the objectives of the program tivity to which this part applies, is ex-
with respect to individuals of a par- pected to take affirmative action to as-
ticular race, color, or national origin. sure that no person is excluded from
(3) In determining the site or loca- participation in or denied the benefits

tion of facilities, a recipient or appli- of the program or activity on the
142
grounds of race, color, or national ori- (d) A recipient may not make a selec-
gin. tion of a site or location of a facility if
(c) Employment practices: the purpose of that selection, or its ef-
(1) Where a primary objective of the fect when made, is to exclude individ-
Federal financial assistance to a pro- uals from participation in, to deny
gram to which this part applies is to them the benefits of, or to subject
provide employment, a recipient or them to discrimination under any pro-
other party subject to this part shall gram or activity to which this rule ap-
not, directly or through contractual or plies, on the grounds of race, color, or
other arrangements, subject a person national origin; or if the purpose is to,
to discrimination on the ground of or its effect when made will, substan-
tially impair the accomplishment of
race, color, or national origin in its
the objectives of this part.
employment practices under such pro-
gram (including recruitment or re- [35 FR 10080, June 18, 1970, as amended by
cruitment advertising, hiring, firing, Amdt. 72–2, 38 FR 17997, July 5, 1973; 68 FR
upgrading, promotion, demotion, trans- 51389, Aug. 26, 2003]
fer, layoff, termination, rates of pay or § 21.7 Assurances required.
other forms of compensation or bene-
fits, selection for training or appren- (a) General. (1) Every application for
ticeship, use of facilities, and treat- Federal financial assistance to which
ment of employees). Such recipient this part applies, except an application
shall take affirmative action to insure to which paragraph (b) of this section
that applicants are employed, and em- applies, and every application for Fed-
ployees are treated during employ- eral financial assistance to provide a
ment, without regard to their race, facility shall, as a condition to its ap-
proval and the extension of any Fed-
color, or national origin. The require-
eral financial assistance pursuant to
ments applicable to construction em-
the application, contain or be accom-
ployment under any such program
panied by, an assurance that the pro-
shall be those specified in or pursuant
gram will be conducted or the facility
to Part III of Executive Order 11246 or
operated in compliance with all re-
any Executive order which supersedes
quirements imposed by or pursuant to
it. this part. Every awardof Federal finan-
(2) Federal financial assistance to cial assistance shall require the sub-
programs under laws funded or admin- mission of such an assurance. In the
istered by the Department which have case where the Federal financial assist-
as a primary objective the providing of ance is to provide or is in the form of
employment include those set forth in personal property, or real property or
appendix B to this part. interest therein or structures thereon,
(3) Where a primary objective of the the assurance shall obligate the recipi-
Federal financial assistance is not to ent, or, in the case of a subsequent
provide employment, but discrimina- transfer, the transferee, for the period
tion on the grounds of race, color, or during which the property is used for a
national origin in the employment purpose for which the Federal financial
practices of the recipient or other per- assistance is extended or for another
sons subject to the regulation tends, on purpose involving the provision of
the grounds of race, color, or national similar services or benefits, or for as
origin, to exclude individuals from par- long as the recipient retains ownership
ticipation in, to deny them the benefits or possession of the property, which-
of, or to subject them to discrimina- ever is longer. In all other cases the as-
tion under any program to which this surance shall obligate the recipient for
regulation applies, the provisions of the period during which Federal finan-
paragraph (c)(1) of this section shall cial assistance is extended to the pro-
apply to the employment practices of gram. The Secretary shall specify the
the recipient or other persons subject form of the foregoing assurances, and
to the regulation, to the extent nec- the extent to which like assurances
essary to assure equality of oppor- will be required of subgrantees, con-
tunity to, and nondiscriminatory tractors and subcontractors, trans-

treatment of, beneficiaries. ferees, successors in interest, and other
143
participants. Any such assurance shall to the application: (1) Contain or be ac-
include provisions which give the companied by a statement that the
United States a right to seek its judi- program is (or, in the case of a new
cial enforcement. program, will be) conducted in compli-
(2) In the case where Federal finan- ance with all requirements imposed by
cial assistance is provided in the form or pursuant to this part, and (2) provide
of a transfer of real property, struc- or be accompanied by provision for
tures, or improvements thereon, or in- such methods of administration for the
terest therein, from the Federal Gov- program as are found by the Secretary
ernment, the instrument effecting or to give reasonable guarantee that the
recording the transfer shall contain a applicant and all recipients of Federal
covenant running with the land assur- financial assistance under such pro-
ing nondiscrimination for the period gram will comply with all require-
during which the real property is used ments imposed by or pursuant to this
for a purpose for which the Federal fi- part.
nancial assistance is extended or for
another purpose involving the provi- [35 FR 10080, June 18, 1970, as amended at 68
FR 51389, Aug. 26, 2003]
sion of similar services or benefits.
Where no transfer of property or inter- § 21.9 Compliance information.
est therein from the Federal Govern-
ment is involved, but property is ac- (a) Cooperation and assistance. The
quired or improved with Federal finan- Secretary shall to the fullest extent
cial assistance, the recipient shall practicable seek the cooperation of re-
agree to include such covenant in any cipients in obtaining compliance with
subsequent transfer of such property. this part and shall provide assistance
When the property is obtained from the and guidance to recipients to help
Federal Government, such covenant them comply voluntarily with this
may also include a condition coupled part.
with a right to be reserved by the De- (b) Compliance reports. Each recipient
partment to revert title to the prop- shall keep such records and submit to
erty in the event of a breach of the cov- the Secretary timely, complete, and
enant where, in the discretion of the accurate compliance reports at such
Secretary, such a condition and right times, and in such form and containing
of reverter is appropriate to the stat- such information, as the Secretary
ute under which the real property is may determine to be necessary to en-
obtained and to the nature of the grant able him to ascertain whether the re-
and the grantee. In such event if a cipient has complied or is complying
transferee of real property proposes to with this part. In the case in which a
mortgage or otherwise encumber the primary recipient extends Federal fi-
real property as security for financing nancial assistance to any other recipi-
construction of new, or improvement of ent, such other recipient shall also sub-
existing, facilities on such property for mit such compliance reports to the pri-
the purposes for which the property mary recipient as may be necessary to
was transferred, the Secretary may enable the primary recipient to carry
agree, upon request of the transferee out its obligations under this part. In
and if necessary to accomplish such fi- general recipients should have avail-
nancing, and upon such conditions as able for the Secretary racial and ethnic
he deems appropriate, to subordinate data showing the extent to which mem-
such right of reversion to the lien of bers of minority groups are bene-
such mortgage or other encumbrance. ficiaries of programs receiving Federal
(b) Continuing Federal financial assist- financial assistance.
ance. Every application by a State or a (c) Access to sources of information.
State agency for continuing Federal fi- Each recipient shall permit access by
nancial assistance to which this part the Secretary during normal business
applies (including the types of Federal hours to such of its books, records, ac-
financial assistance listed in appendix counts, and other sources of informa-
A to this part) shall as a condition to tion, and its facilities as may be perti-
its approval and the extension of any nent to ascertain compliance with this
Federal financial assistance pursuant part. Where any information required
144
of a recipient is in the exclusive posses- comply with this part, the Secretary
sion of any other agency, institution, will so inform the recipient and the
or person and this agency, institution, matter will be resolved by informal
or person fails or refuses to furnish this means whenever possible. If it has been
information, the recipient shall so cer- determined that the matter cannot be
tify in its report and shall set forth resolved by informal means, action will
what efforts it has made to obtain the be taken as provided for in § 21.13.
information. (2) If an investigation does not war-
(d) Information to beneficiaries and rant action pursuant to paragraph
participants. Each recipient shall make (d)(1) of this section the Secretary will
available to participants, beneficiaries, so inform the recipient and the com-
and other interested persons such in- plainant, if any, in writing.
formation regarding the provisions of (e) Intimidatory or retaliatory acts pro-
this part and its applicability to the hibited. No recipient or other person
program for which the recipient re- shall intimidate, threaten, coerce, or
ceives Federal financial assistance, and discriminate against any individual for
make such information available to the purpose of interfering with any
them in such manner, as the Secretary right or privilege secured by section 601
finds necessary to apprise such persons of the Act or this part, or because he
of the protections against discrimina- has made a complaint, testified, as-
tion assured them by the Act and this sisted, or participated in any manner
part. in an investigation, proceeding, or
hearing under this part. The identity of
[35 FR 10080, June 18, 1970, as amended by
Amdt. 72–2, 38 FR 17997, July 5, 1973; 68 FR complainants shall be kept confiden-
51389, Aug. 26, 2003] tial except to the extent necessary to
carry out the purposes of this part, in-
§ 21.11 Conduct of investigations. cluding the conduct of any investiga-
(a) Periodic compliance reviews. The tion, hearing, or judicial proceeding
Secretary shall from time to time re- arising thereunder.
view the practices of recipients to de- [35 FR 10080, June 18, 1970, as amended by
termine whether they are complying Amdt. 72–2, 38 FR 17997, July 5, 1973]
with this part.
(b) Complaints. Any person who be- § 21.13 Procedure for effecting compli-
lieves himself or any specific class of ance.
persons to be subjected to discrimina- (a) General. If there appears to be a
tion prohibited by this part may by failure or threatened failure to comply
himself or by a representative file with with this part, and if the noncompli-
the Secretary a written complaint. A ance or threatened noncompliance can-
complaint must be filed not later than not be corrected by informal means,
180 days after the date of the alleged compliance with this part may be ef-
discrimination, unless the time for fil- fected by the suspension or termi-
ing is extended by the Secretary. nation of or refusal to grant or to con-
(c) Investigations. The Secretary will tinue Federal financial assistance or by
make a prompt investigation whenever any other means authorized by law.
a compliance review, report, com- Such other means may include, but are
plaint, or any other information indi- not limited to: (1) A reference to the
cates a possible failure to comply with Department of Justice with a rec-
this part. The investigation will in- ommendation that appropriate pro-
clude, where appropriate, a review of ceedings be brought to enforce any
the pertinent practices and policies of rights of the United States under any
the recipient, the circumstances under law of the United States (including
which the possible noncompliance with other titles of the Act), or any assur-
this part occurred, and other factors ance or other contractual undertaking,
relevant to a determination as to and (2) any applicable proceeding under
whether the recipient has failed to State or local law.
comply with this part. (b) Noncompliance with § 21.7. If an ap-
(d) Resolution of matters. (1) If an in- plicant fails or refuses to furnish an as-
vestigation pursuant to paragraph (c) surance required under § 21.7 or other-

of this section indicates a failure to wise fails or refuses to comply with a
145
requirement imposed by or pursuant to (2) The recipient or other person has

that section, Federal financial assist- been notified of its failure to comply
ance may be refused in accordance with and of the action to be taken to effect
the procedures of paragraph (c) of this compliance; and
section. The Department shall not be (3) The expiration of at least 10 days
required to provide assistance in such a from the mailing of such notice to the
case during the pendency of the admin- recipient or other person. During this
istrative proceedings under such para- period of at least 10 days, additional ef-
graph. However, subject to § 21.21, the forts shall be made to persuade the re-
Department shall continue assistance cipient or other person to comply with
during the pendency of such pro- the regulation and to take such correc-
ceedings where such assistance is due tive action as may be appropriate.
and payable pursuant to an application
approved prior to the effective date of § 21.15 Hearings.
this part. (a) Opportunity for hearing. Whenever
(c) Termination of or refusal to grant or an opportunity for a hearing is re-
to continue Federal financial assistance. quired by § 21.13(c), reasonable notice
No order suspending, terminating, or shall be given by registered or certified
refusing to grant or continue Federal mail, return receipt requested, to the
financial assistance shall become effec- affected applicant or recipient. This
tive until: notice shall advise the applicant or re-
(1) The Secretary has advised the ap- cipient of the action proposed to be
plicant or recipient of his failure to taken, the specific provision under
comply and has determined that com- which the proposed action against it is
pliance cannot be secured by voluntary to be taken, and the matters of fact or
means; law asserted as the basis for this ac-
(2) There has been an express finding tion, and either: (1) Fix a date not less
on the record, after opportunity for than 20 days after the date of such no-
hearing, of a failure by the applicant or tice within which the applicant or re-
recipient to comply with a requirement cipient may request of the Secretary
imposed by or pursuant to this part; that the matter be scheduled for hear-
(3) The action has been approved by ing or (2) advise the applicant or recipi-
the Secretary pursuant to § 21.17(e); and ent that the matter in question has
been set down for hearing at a stated
(4) The expiration of 30 days after the
place and time. The time and place so
Secretary has filed with the committee
fixed shall be reasonable and shall be
of the House and the committee of the
subject to change for cause. The com-
Senate having legislative jurisdiction
plainant, if any, shall be advised of the
over the program involved, a full writ-
time and place of the hearing. An ap-
ten report of the circumstances and the
plicant or recipient may waive a hear-
grounds for such action.
ing and submit written information
Any action to suspend or terminate or and argument for the record. The fail-
to refuse to grant or to continue Fed- ure of an applicant or recipient to re-
eral financial assistance shall be lim- quest a hearing under this paragraph
ited to the particular political entity, or to appear at a hearing for which a
or part thereof, or other applicant or date has been set shall be deemed to be
recipient as to whom such a finding has a waiver of the right to a hearing under
been made and shall be limited in its section 602 of the Act and § 21.13(c) and
effect to the particular program, or consent to the making of a decision on
part thereof, in which such noncompli- the basis of such information as is
ance has been so found. available.
(d) Other means authorized by law. No (b) Time and place of hearing. Hear-
action to effect compliance with title ings shall be held at the offices of the
VI of the Act by any other means au- Department in Washington, D.C., at a
thorized by law shall be taken by this time fixed by the Secretary unless he
Department until: determines that the convenience of the
(1) The Secretary has determined applicant or recipient or of the Depart-
that compliance cannot be secured by ment requires that another place be se-
voluntary means; lected. Hearings shall be held before
146
the Secretary, or at his discretion, be- Federal financial assistance is ex-

fore a hearing examiner appointed in tended and to which this part applies,
accordance with section 3105 of title 5, or noncompliance with this part and
United States Code, or detailed under the regulations of one or more other
section 3344 of title 5, United States Federal departments or agencies issued
Code. under title VI of the Act, the Secretary
(c) Right to counsel. In all proceedings may, by agreement with such other de-
under this section, the applicant or re- partments or agencies, where applica-
cipient and the Department shall have ble, provide for the conduct of consoli-
the right to be represented by counsel. dated or joint hearings, and for the ap-
(d) Procedures, evidence, and record. (1) plication to such hearings of rules or
The hearing, decision, and any admin- procedures not inconsistent with this
istrative review thereof shall be con- part. Final decisions in such cases, in-
ducted in conformity with sections 554 sofar as this regulation is concerned,
through 557 of title 5, United States shall be made in accordance with
Code, and in accordance with such § 21.17.
rules of procedure as are proper (and
not inconsistent with this section) re- [35 FR 10080, June 18, 1970, as amended at 68
FR 51389, Aug. 26, 2003]
lating to the conduct of the hearing,
giving of notices subsequent to those
§ 21.17 Decisions and notices.
provided for in paragraph (a) of this
section, taking of testimony, exhibits, (a) Procedure on decisions by hearing
arguments and briefs, requests for find- examiner. If the hearing is held by a
ings, and other related matters. Both hearing examiner, the hearing exam-
the Department and the applicant or iner shall either make an initial deci-
recipient shall be entitled to introduce sion, if so authorized, or certify the en-
all relevant evidence on the issues as tire record including his recommended
stated in the notice for hearing or as findings and proposed decision to the
determined by the officer conducting Secretary for a final decision, and a
the hearing at the outset of or during copy of such initial decision or certifi-
the hearing. cation shall be mailed to the applicant
(2) Technical rules of evidence do not or recipient. Where the initial decision
apply to hearings conducted pursuant is made by the hearing examiner the
to this part, but rules or principles de- applicant or recipient may, within 30
signed to assure production of the most days after the mailing of such notice of
credible evidence available and to sub- initial decision, file with the Secretary
ject testimony to test by cross-exam- his exceptions to the initial decision,
ination shall be applied where reason- with his reasons therefor. In the ab-
ably necessary by the officer con- sence of exceptions, the Secretary may,
ducting the hearing. The hearing offi- on his own motion, within 45 days after
cer may exclude irrelevant, immate- the initial decision, serve on the appli-
rial, or unduly repetitious evidence. All cant or recipient a notice that he will
documents and other evidence offered review the decision. Upon the filing of
or taken for the record shall be open to such exceptions or of notice of review,
examination by the parties and oppor- the Secretary shall review the initial
tunity shall be given to refute facts decision and issue his own decision
and arguments advanced on either side thereon including the reasons therefor.
of the issues. A transcript shall be In the absence of either exceptions or a
made of the oral evidence except to the notice of review the initial decision
extent the substance thereof is stipu- shall, subject to paragraph (e) of this
lated for the record. All decisions shall section, constitute the final decision of
be based upon the hearing record and the Secretary.
written findings shall be made. (b) Decisions on record or review by the
(e) Consolidated or joint hearings. In Secretary. Whenever a record is cer-
cases in which the same or related tified to the Secretary for decision or
facts are asserted to constitute non- he reviews the decision of a hearing ex-
compliance with this part with respect aminer pursuant to paragraph (a) of
to two or more Federal statutes, au- this section, or whenever the Secretary
thorities, or other means by which conducts the hearing, the applicant or
147
recipient shall be given reasonable op- fected by an order issued under para-
portunity to file with him briefs or graph (f) of this section shall be re-
other written statements of its conten- stored to full eligibility to receive Fed-
tions, and a written copy of the final eral financial assistance if it satisfies
decision of the Secretary shall be sent the terms and conditions of that order
to the applicant or recipient and to the for such eligibility or if it brings itself
complainant, if any. into compliance with this part and pro-
(c) Decisions on record where a hearing vides reasonable assurance that it will
is waived. Whenever a hearing is waived fully comply with this part.
pursuant to § 21.15, a decision shall be (2) Any applicant or recipient ad-
made by the Secretary on the record versely affected by an order entered
and a written copy of such decision pursuant to paragraph (f) of this sec-
shall be sent to the applicant or recipi- tion may at any time request the Sec-
ent, and to the complainant, if any. retary to restore fully its eligibility to
(d) Rulings required. Each decision of receive Federal financial assistance.
a hearing examiner or the Secretary Any such request shall be supported by
shall set forth his ruling on each find- information showing that the applicant
ing, conclusion, or exception presented, or recipient has met the requirements
and shall identify the requirement or of paragraph (g)(1) of this section. If
requirements imposed by or pursuant the Secretary determines that those
to this part with which it is found that requirements have been satisfied, he
the applicant or recipient has failed to shall restore such eligibility.
comply. (3) If the Secretary denies any such
(e) Approval by Secretary. Any final request, the applicant or recipient may
decision by an official of the Depart- submit a request for a hearing in writ-
ment, other than the Secretary person- ing, specifying who it believes such of-
ally, which provides for the suspension ficial to have been in error. It shall
or termination of, or the refusal to thereupon be given an expeditious
grant or continue Federal financial as- hearing, with a decision on the record
sistance, or the imposition of any other in accordance with rules or procedures
sanction available under this part or issued by the Secretary. The applicant
the Act, shall promptly be transmitted or recipient will be restored to such eli-
to the Secretary personally, who may gibility if it proves at such a hearing
approve such decision, may vacate it, that it satisfied the requirements of
or remit or mitigate any sanction im- paragraph (g)(1) of this section.
posed. While proceedings under this paragraph
(f) Content of orders. The final deci- are pending, the sanctions imposed by
sion may provide for suspension or ter- the order issued under paragraph (f) of
mination of, or refusal to grant or con- this section shall remain in effect.
tinue Federal financial assistance, in
whole or in part, to which this regula- [35 FR 10080, June 18, 1970, as amended at 68
tion applies, and may contain such FR 51389, Aug. 26, 2003]
terms, conditions, and other provisions
§ 21.19 Judicial review.
as are consistent with and will effec-
tuate the purposes of the Act and this Action taken pursuant to section 602
part, including provisions designed to of the Act is subject to judicial review
assure that no Federal financial assist- as provided in section 603 of the Act.
ance to which this regulation applies
will thereafter be extended to the ap- § 21.21 Effect on other regulations,
plicant or recipient determined by such forms, and instructions.
decision to be in default in its perform- (a) Effect on other regulations. All reg-
ance of an assurance given by it pursu- ulations, orders, or like directions
ant to this part, or to have otherwise issued before the effective date of this
failed to comply with this part, unless part by any officer of the Department
and until it corrects its noncompliance which impose requirements designed to
and satisfies the Secretary that it will prohibit any discrimination against in-
fully comply with this part. dividuals on the grounds of race, color,
(g) Post termination proceedings. (1) An or national origin under any program
applicant or recipient adversely af- to which this part applies, and which
148
authorize the suspension or termi- tion had been taken by the Secretary
nation of or refusal to grant or to con- of this Department.
tinue Federal financial assistance to
[35 FR 10080, June 18, 1970, as amended at 68
any applicant for a recipient of such FR 51389, Aug. 26, 2003]
assistance for failure to comply with
such requirements, are hereby super- § 21.23 Definitions.
seded to the extent that such discrimi-
Unless the context requires other-
nation is prohibited by this part, ex-
wise, as used in this part:
cept that nothing in this part may be
(a) Applicant means a person who sub-
considered to relieve any person of any
mits an application, request, or plan
obligation assumed or imposed under
required to be approved by the Sec-
any such superseded regulation, order,
retary, or by a primary recipient, as a
instruction, or like direction before the
condition to eligibility for Federal fi-
effective date of this part. Nothing in nancial assistance, and ‘‘application’’
this part, however, supersedes any of means such an application, request, or
the following (including future amend- plan.
ments thereof): (1) Executive Order (b) Facility includes all or any part of
11246 (3 CFR, 1965 Supp., p. 167) and reg- structures, equipment, or other real or
ulations issued thereunder or (2) any personal property or interests therein,
other orders, regulations, or instruc- and the provision of facilities includes
tions, insofar as such orders, regula- the construction, expansion, renova-
tions, or instructions prohibit discrimi- tion, remodeling, alteration or acquisi-
nation on the ground of race, color, or tion of facilities.
national origin in any program or situ- (c) Federal financial assistance in-
ation to which this part is inapplicable, cludes:
or prohibit discrimination on any other (1) Grants and loans of Federal funds;
ground.
(2) The grant or donation of Federal
(b) Forms and instructions. The Sec- property and interests in property;
retary shall issue and promptly make (3) The detail of Federal personnel;
available to all interested persons
(4) The sale and lease of, and the per-
forms and detailed instructions and
mission to use (on other than a casual
procedures for effectuating this part as or transient basis), Federal property or
applied to programs to which this part any interest in such property without
applies and for which he is responsible. consideration or at a nominal consider-
(c) Supervision and coordination. The ation, or at a consideration which is re-
Secretary may from time to time as- duced for the purpose of assisting the
sign to officials of the Department, or recipient, or in recognition of the pub-
to officials of other departments or lic interest to be served by such sale or
agencies of the Government with the lease to the recipient; and
consent of such departments or agen- (5) Any Federal agreement, arrange-
cies, responsibilities in connection ment, or other contract which has as
with the effectuation of the purposes of one of its purposes the provision of as-
title VI of the Act and this part (other sistance.
than responsibility for final decision as (d) Primary recipient means any re-
provided in § 21.17), including the cipient that is authorized or required
achievement of effective coordination to extend Federal financial assistance
and maximum uniformity within the to another recipient.
Department and within the Executive (e) Program or activity and program
Branch of the Government in the appli- mean all of the operations of any enti-
cation of title VI and this part to simi- ty described in paragraphs (e)(1)
lar programs and in similar situations. through (4) of this section, any part of
Any action taken, determination made which is extended Federal financial as-
or requirement imposed by an official sistance:
of another department or agency act- (1)(i) A department, agency, special
ing pursuant to an assignment of re- purpose district, or other instrumen-
sponsibility under this paragraph shall tality of a State or of a local govern-

have the same effect as though such ac- ment; or
149
Pt. 21, App. A 49 CFR Subtitle A (10–1–19 Edition)
(ii) The entity of such State or local APPENDIX A TO PART 21—ACTIVITIES TO

government that distributes such as- WHICH THIS PART APPLIES
sistance and each such department or
1. Use of grants made in connection with
agency (and each other State or local
Federal-aid highway systems (23 U.S.C. 101 et
government entity) to which the as- seq.).
sistance is extended, in the case of as- 2. Use of grants made in connection with
sistance to a State or local govern- the Highway Safety Act of 1966 (23 U.S.C. 401
ment; et seq.).
(2)(i) A college, university, or other 3. Use of grants in connection with the Na-
postsecondary institution, or a public tional Traffic and Motor Vehicle Safety Act
system of higher education; or of 1966 (15 U.S.C. 1391–1409, 1421–1425).
(ii) A local educational agency (as de- 4. Lease of real property and the grant of
fined in 20 U.S.C. 7801), system of voca- permits, licenses, easements and rights-of-
way covering real property under control of
tional education, or other school sys- the Coast Guard (14 U.S.C. 93 (n) and (o)).
tem; 5. Utilization of Coast Guard personnel and
(3)(i) An entire corporation, partner- facilities by any State, territory, possession,
ship, or other private organization, or or political subdivision thereof (14 U.S.C.
an entire sole proprietorship— 141(a)).
(A) If assistance is extended to such 6. Use of Coast Guard personnel for duty in
corporation, partnership, private orga- connection with maritime instruction and
nization, or sole proprietorship as a training by the States, territories, and Puer-
to Rico (14 U.S.C. 148).
whole; or
7. Use of obsolete and other Coast Guard
(B) Which is principally engaged in material by sea scout service of Boy Scouts
the business of providing education, of America, any incorporated unit of the
health care, housing, social services, or Coast Guard auxiliary, and public body or
parks and recreation; or private organization not organized for profit
(ii) The entire plant or other com- (14 U.S.C. 641(a)).
parable, geographically separate facil- 8. U.S. Coast Guard Auxiliary Program (14
ity to which Federal financial assist- U.S.C. 821–832).
ance is extended, in the case of any 9. Use of grants for the support of basic sci-
entific research by nonprofit institutions of
other corporation, partnership, private higher education and nonprofit organizations
organization, or sole proprietorship; or whose primary purpose is conduct of sci-
(4) Any other entity which is estab- entific research (42 U.S.C. 1891).
lished by two or more of the entities 10. Use of grants made in connection with
described in paragraph (e)(1), (2), or (3) the Federal-aid Airport Program (secs. 1–15
of this section. and 17–20 of the Federal Airport Act, 49
(f) Recipient may mean any State, U.S.C. 1101–1114, 1116–1120).
territory, possession, the District of 11. Use of U.S. land acquired for public air-
Columbia, or Puerto Rico, or any polit- ports under:
a. Section 16 of the Federal Airport Act, 49
ical subdivision thereof, or instrumen-
U.S.C. 1115; and
tality thereof, any public or private
b. Surplus Property Act (sec. 13(g) of the
agency, institution, or organization, or Surplus Property Act of 1944, 50 U.S.C. App.
other entity, or any individual, in any 1622(g), and sec. 3 of the Act of Oct. 1, 1949,
State, territory, possession, the Dis- 50 U.S.C. App. 1622b).
trict of Columbia, or Puerto Rico, to 12. Activities carried out in connection
whom Federal financial assistance is with the Aviation Education Program of the
extended, directly or through another Federal Aviation Administration under sec-
recipient, including any successor, as- tions 305, 311, and 313(a) of the Federal Avia-
signee, or transferee thereof, but such tion Act of 1958, as amended (49 U.S.C. 1346,
term does not include any ultimate 1352, and 1354(a)).
13. Use of grants and loans made in connec-
beneficiary.
tion with public transportation programs (49
(g) Secretary means the Secretary of U.S.C. chapter 53).
Transportation or, except in § 21.17 (e), 14. Use of grants made in connection with
any person to whom he has delegated the High Speed Ground Transportation Act,
his authority in the matter concerned. as amended (49 U.S.C. 631–642).
[35 FR 10080, June 18, 1970, as amended at 68 [35 FR 10080, June 18, 1970, as amended at 79
FR 51389, Aug. 26, 2003] FR 21405, Apr. 16, 2014]
150
Office of the Secretary of Transportation Pt. 21, App. C
APPENDIX B TO PART 21—ACTIVITIES TO operator’s services may not be restricted on

WHICH THIS PART APPLIES WHEN A the basis of race, color, or national origin.
PRIMARY OBJECTIVE OF THE FED- (vii) Passengers and crewmembers seeking
ERAL FINANCIAL ASSISTANCE IS TO
ground transportation from the airport may
not be assigned to different vehicles, or de-
PROVIDE EMPLOYMENT layed or embarrassed in assignment to vehi-
1. Appalachia Regional Development Act of cles, by the airport sponsor or his lessees,
1965 (40 U.S.C. App. 1 et seq.). concessionaires, or contractors, because of
race, color, or national origin.
APPENDIX C TO PART 21—APPLICATION (viii) Where there are two or more sites
OF PART 21 TO CERTAIN FEDERAL FI- having equal potential to serve the aero-
NANCIAL ASSISTANCE OF THE DE- nautical needs of the area, the airport spon-
sor shall select the site least likely to ad-
PARTMENT OF TRANSPORTATION
versely affect existing communities. Such
NONDISCRIMINATION ON FEDERALLY ASSISTED site selection shall not be made on the basis
PROJECTS of race, color, or national origin.
(ix) Employment at obligated airports, in-
(a) Examples. The following examples, with- cluding employment by tenants and conces-
out being exhaustive, illustrate the applica- sionaires shall be available to all regardless
tion of the nondiscrimination provisions of of race, creed, color, sex, or national origin.
this part on projects receiving Federal finan- The sponsor shall coordinate his airport plan
cial assistance under the programs of certain with his local transit authority and the Fed-
Department of Transportation operating ad- eral Transit Administration to assure public
ministrations:
transportation, convenient to the disadvan-
(1) Federal Aviation Administration. (i) The
taged areas of nearby communities to en-
airport sponsor or any of his lessees, conces-
hance employment opportunities for the dis-
sionaires, or contractors may not differen-
advantaged and minority population.
tiate between members of the public because
of race, color, or national origin in fur- (x) The sponsor shall assure that the mi-
nishing, or admitting to, waiting rooms, pas- nority business community in his area is ad-
senger holding areas, aircraft tiedown areas, vised of the opportunities offered by airport
restaurant facilities, restrooms, or facilities concessions, and that bids are solicited from
operated under the compatible land use con- such qualified minority firms, and awards
cept. made without regard to race, color, or na-
(ii) The airport sponsor and any of his les- tional origin.
sees, concessionaires, or contractors must (2) Federal Highway Administration. (i) The
offer to all members of the public the same State, acting through its highway depart-
degree and type of service without regard to ment, may not discriminate in its selection
race, color, or national origin. This rule ap- and retention of contractors, including with-
plies to fixed base operators, restaurants, out limitation, those whose services are re-
snack bars, gift shops, ticket counters, bag- tained for, or incidental to, construction,
gage handlers, car rental agencies, lim- planning, research, highway safety, engi-
ousines and taxis franchised by the airport neering, property management, and fee con-
sponsor, insurance underwriters, and other tracts and other commitments with person
businesses catering to the public at the air- for services and expenses incidental to the
port. acquisition of right-of-way.
(iii) An aircraft operator may not be re- (ii) The State may not discriminate
quired to park his aircraft at a location that against eligible persons in making relocation
is less protected, or less accessible from the payments and in providing relocation advi-
terminal facilities, than locations offered to sory assistance where relocation is neces-
others, because of his race, color, or national sitated by highway right-of-way acquisi-
origin. tions.
(iv) The pilot of an aircraft may not be re- (iii) Federal-aid contractors may not dis-
quired to help more extensively in fueling criminate in their selection and retention of
operations, and may not be offered less inci- first-tier subcontractors, and first-tier sub-
dental service (such as windshield wiping), contractors may not discriminate in their
than other pilots, because of his race, color, selection and retention of second-tier sub-
or national origin. contractors, who participate in Federal-aid
(v) No pilot or crewmember eligible for ac- highway construction, acquisition of right-
cess to a pilot’s lounge or to unofficial com- of-way and related projects, including those
munication facilities such as a UNICOM fre- who supply materials and lease equipment.
quency may be restricted in that access be- (iv) The State may not discriminate
cause of his race, color, or national origin. against the traveling public and business
(vi) Access to facilities maintained at the users of the federally assisted highway in
airport by air carriers or commercial opera- their access to and use of the facilities and
tors for holders of first-class transportation services provided for public accommodations
tickets or frequent users of the carrier’s or (such as eating, sleeping, rest, recreation,
151
and vehicle servicing) constructed on, over for it, and (ii) conspicuously display a sign,
or under the right-of-way of such highways. or signs, furnished by the FAA, in the main
(v) Neither the State, any other persons public area or areas of the airport, stating
subject to this part, nor its contractors and that discrimination based on race, color, or
subcontractors may discriminate in their national origin is prohibited on the airport.
employment practices in connection with (3) Reports. Each airport owner subject to
highway construction projects or other this part shall, within 15 days after he re-
projects assisted by the Federal Highway Ad- ceives it, forward to the Area Manager of the
ministration. FAA Area in which the airport is located a
(vi) The State shall not locate or design a copy of each written complaint charging dis-
highway in such a manner as to require, on crimination because of race, color, or na-
the basis of race, color, or national origin, tional origin by any person subject to this
the relocation of any persons. part, together with a statement describing
(vii) The State shall not locate, design, or all actions taken to resolve the matter, and
construct a highway in such a manner as to the results thereof. Each airport operator
deny reasonable access to, and use thereof, shall submit to the area manager of the FAA
to any persons on the basis of race, color, or area in which the airport is located a report
national origin. for the preceding year on the date and in a
(3) Federal Transit Administration. (i) Any form prescribed by the Federal Aviation Ad-
person who is, or seeks to be, a patron of any ministrator.
public vehicle which is operated as a part of,
or in conjunction with, a project shall be [35 FR 10080, June 18, 1970, as amended by
given the same access, seating, and other Amdt. 21–1, 38 FR 5875, Mar. 5, 1973; Amdt. 21–
treatment with regard to the use of such ve- 3, 40 FR 14318, Mar. 31, 1975; 79 FR 21405, Apr.
hicle as other persons without regard to 16, 2014]
their race, color, or national origin.
(ii) No person who is, or seeks to be, an em-
ployee of the project sponsor or lessees, con- PART 22—SHORT-TERM LENDING
cessionaires, contractors, licensees, or any PROGRAM (STLP)
organization furnishing public transpor-
tation service as a part of, or in conjunction Subpart A—General
with, the project shall be treated less favor-
ably than any other employee or applicant Sec.
with regard to hiring, dismissal, advance- 22.1 Purpose.
ment, wages, or any other conditions and 22.3 Definitions.
benefits of employment, on the basis of race,
color, or national origin. Subpart B—Policies applying to STLP loans
(iii) No person or group of persons shall be
discriminated against with regard to the 22.11 Eligibility criteria.
routing, scheduling, or quality of service of 22.13 Loan terms and conditions.
transportation service furnished as a part of 22.15 Delinquency on Federal, State, and
the project on the basis of race, color, or na- Municipal debt.
tional origin. Frequency of service, age and
22.17 Compliance with child support obliga-
quality of vehicles assigned to routes, qual-
tions.
ity of stations serving different routes, and
22.19 Credit criteria.
location of routes may not be determined on
the basis of race, color, or national origin.
(iv) The location of projects requiring land Subpart C—Participating Lenders
acquisition and the displacement of persons
22.21 Participation criteria.
from their residences and businesses may not
22.23 Agreements.
be determined on the basis of race, color, or
national origin. 22.25 Lender deliverables and delivery
(b) Obligations of the airport operator—(1) schedule.
Tenants, contractors, and concessionaires. Each 22.27 Eligible reimbursements to partici-
airport operator shall require each tenant, pating lenders.
contractor, and concessionaire who provides 22.29 DOT access to participating lender
any activity, service, or facility at the air- files.
port under lease, contract with, or franchise 22.31 Suspension or revocation of eligibility
from the airport, to covenant in a form spec- to participate.
ified by the Administrator, Federal Aviation 22.33 Termination of participation in the
Administration, that he will comply with STLP.
the nondiscrimination requirements of this
part. Subpart D—Loan Application Process
(2) Notification of beneficiaries. The airport
operator shall: (i) Make a copy of this part 22.41 Application procedures.
available at his office for inspection during 22.43 Approvals and denials.
normal working hours by any person asking 22.45 Allowable fees to borrowers.
152
Subpart E—Loan Administration ative agreement further outlines the

responsibilities and requirements of
22.51 Loan closings.
22.53 Loan monitoring & Servicing require-
the lender in order to participate in the
ments. STLP.
22.57 Loan reporting requirements. Director means Director, Office of
22.59 Loan modifications. Small and Disadvantaged Business Uti-
22.61 Loan guarantee extensions. lization, U.S. Department of Transpor-
22.63 Loan close outs. tation.
22.65 Subordination. Disadvantaged business enterprise or
22.67 Delinquent loans and loan defaults.
22.69 Claims process. DBE means a business that is certified
as such by a recipient of DOT financial
AUTHORITY: 49 U.S.C. 332. assistance as provided in 49 CFR part
SOURCE: 75 FR 19290, Apr. 14, 2010, unless 23 or 49 CFR part 26.
otherwise noted. Guarantee agreement means DOT
OSDBU’s written agreement with a
Subpart A—General Participating Lender that provides the
terms and conditions under which DOT
§ 22.1 Purpose. OSDBU will guarantee a STLP loan. It
The purpose of the DOT OSDBU is not a contract to make a direct loan
STLP is to provide financial assistance to the borrower.
in the form of short-term loans from Loan guarantee means the agreement
Participating Lenders that are guaran- of DOT OSDBU to issue a guarantee of
teed by DOT OSDBU, to DBEs and payment of a specified portion of an ap-
SDBs for the execution of DOT funded proved STLP loan to the Participating
and supported transportation-related Lender, under DOT OSDBU stated
contracts. terms and conditions, in the event that
the borrower defaults on the loan.
§ 22.3 Definitions. Loan purpose means the approved
As used in this part: uses for STLP loan proceeds. That is,
Accounts receivable means monies only for short-term working capital
that are due to the borrower for work needs related to the direct costs of an
performed or services rendered under a eligible transportation-related con-
contract, subcontract, or purchase tract.
order. Other eligible certifications mean the
Activation date means the date that following certifications obtained by a
the STLP loan is established on the borrower through the U.S. Small Busi-
Participating Lender’s books and re- ness Administration (SBA): Small Dis-
corded as an open loan. It is also the advantaged Business (SDB); Section
date that the borrower can begin to 8(a) Program participant; HUBZONE
drawn funds from the line of credit. Ac- Empowerment Contracting Program;
tivation date is also the date in which and Service-Disabled Veteran Program
the DOT OSDBU guarantee becomes ef- (SDV).
fective. Participating Lender (PL) is a bank or
Assigned contract means the transpor- other lending institution that has
tation-related contract(s), sub- agreed to the terms of a cooperative
contract(s), and/or purchase order(s) agreement and has been formally ac-
that has been pledged as collateral to a cepted into the STLP by DOT OSDBU.
STLP loan and perfected through an Small and disadvantaged business
assignment form executed by all appro- (SDB) includes 8(a); small disadvan-
priate parties. taged business; women-owned business,
Borrower is the obligor of a DOT HubZone, and service-disabled veteran-
OSDBU guaranteed loan. owned business.
Cooperative agreement is the written Socially and economically disadvan-
agreement between DOT OSDBU and a taged individual has the same meaning
Participating Lender that outlines the as stated in 49 CFR 26.5.
terms and conditions under which the Technical assistance means service
lender may submit eligible loan re- provided by the Participating Lender
quests to DOT OSDBU for consider- to the DBE or SDB that will enable the
ation of its loan guarantee. The cooper- DBE or SDB to become more capable of
153
managing its transportation-related receiving federal funding from DOT for

contracts. Technical assistance can be the maintenance, rehabilitation, re-
provided by collaborating with agen- structuring, improvement or revital-
cies that offer small business manage- ization of any of the nation’s modes of
ment counseling such as the SBA, the transportation shall be considered an
U. S. Department of Commerce’s Mi- eligible contract.
nority Business Development Centers (c) Eligibility Period. A borrower is eli-
(MBDCs), the Service Corps of Retired gible for participation in the STLP for
Executives (SCORE), Procurement a period up to a total of five (5) years.
Technical Assistance Centers (PTACs), The STLP renewal is not automatic.
and Small Business Development Cen- The borrower has to demonstrate its
ters (SBDCs). continued eligibility and creditworthi-
Transportation-related contract means ness for STLP and must submit a com-
a contract, subcontract, or purchase plete application package.
order, at any tier, for the maintenance, (1) The continued eligibility of any
rehabilitation, restructuring, improve- borrower who would exceed the period
ment, or revitalization of any of the limit in paragraph (c) of this section
nation’s modes of transportation that will be determined on a case-by-case
receive DOT funding. basis by the OSDBU Director and is
Work-out means a plan that offers op- subject to the following provisions:
tions to avoid loan default or collateral
(i) The STLP loan guarantee may be
foreclosure and/or liquidation that is
reduced; and
intended to resolve delinquent loans or
loans in imminent default, which may (ii) The STLP loan interest rate may
include, but not limited to: deferring or be increased.
forgiving principal or interest, reduc- (2) Should any borrower currently in
ing the borrower’s interest rate, ex- the STLP become ineligible per para-
tending the loan maturity and the gov- graph (a) of this section during the
ernment guarantee to the Partici- term of a STLP loan, the failure to
pating Lender, or postponing collection comply with a specific requirement
action. must be brought to the immediate at-
tention of all remaining parties.
(3) Borrower ineligibility may result
Subpart B—Policies Applying to in a termination of the current guar-
STLP Loans antee.
§ 22.11 Eligibility criteria.
§ 22.13 Loan terms and conditions.
(a) Eligible Borrower. To be eligible to
apply for a STLP loan guarantee, a (a) Amount. The maximum face
borrower must meet the following re- amount for an individual STLP loan
quirements: may not exceed seven hundred and fifty
(1) Be a for-profit entity; thousand ($750,000) dollars, unless the
(2) Have an eligible transportation- requested increased amount is author-
related contract; ized by the OSDBU Director.
(3) Demonstrate an eligible use for (b) Interest Rates. All STLP loans
the desired credit; shall have a variable interest rate.
(4) Be an established business with (1) Initial Interest Rate. The base rate
experience in the transportation indus- guideline for STLP loans is the prime
try and trade for which the STLP loan rate in effect on the first business day
is sought; of the month in which the STLP loan
(5) Be certified as a DBE or have an- guarantee is approved by DOT OSDBU.
other eligible certification issued by The prime rate is the rate printed in a
the SBA; and national financial newspaper published
(6) Be current on all federal, state, each business day. The Participating
and local tax liabilities. Lender may increase the base rate by
(b) Eligible Transportation-Related the maximum allowable percentage
Contract. Any fully-executed transpor- points currently allowed by STLP poli-
tation-related contract, subcontract, cies and procedures and as commu-
or purchase order held directly with nicated in subsequent DOT OSDBU no-
DOT or with grantees and recipients tices.
154
(2) Frequency of Change. The first amounts due for completed work on
change may occur on the first calendar the contract. The Participating Lender
day of the month following the initial must verify the accuracy of the invoice
loan disbursement, using the above with the paying transportation govern-
base rate in effect on the first business ment agency, if the borrower is a prime
day of the month. Subsequent interest contractor, and/or with the prime con-
rate changes may occur no more than tractor, if the borrower is a subcon-
monthly. tractor. This verification must be ob-
(c) Loan Structure and Term. A STLP tained by the Participating Lender
loan shall be set up as a revolving line prior to advancing funds. No more than
of credit. The line permits the bor- 85% of an approved accounts receivable
rower to request principal advances, invoice shall be advanced to the bor-
pay them back, and then re-borrow, rower by the Participating Lender.
not to exceed the face value of the line (1) Processing time. Disbursement of
of credit. Participating Lenders are re- STLP funds to the borrower should be
quired to provide DOT OSDBU written accomplished within three (3) business
notification of the activation date of days of an accounts receivable invoice
each line of credit under the STLP. approval by the paying agency and/or
The term of the Federal guarantee of prime contractor.
the line of credit commences on the ac- (2) Electronic funds transfer. If the
tivation date. disbursement of STLP funds is being
(d) Repayment. Interest payments sent to the borrower through a local
must be made monthly. The principal Participating Lender, the disbursement
of the loan is repaid as payment from should be made by electronic funds
approved accounts receivable are re- transfer with the preferred method of
ceived by the Participating Lender payment being the Automated Clearing
through a joint payee check system. House (ACH) system.
The assigned contract supporting the
(3) Wire transfers. Wire transfers can
STLP loan is the primary source of re-
be used if the ACH system is not avail-
payment.
able or if a same day disbursement is
(e) Use of Loan Proceeds. STLP loans
must be used to finance short-term required.
working capital needs, specifically di- (4) Joint payee check system. A two-
rect costs generated by the assigned party payee check system is required
contract. Proceeds may not be used for in which the Participating Lender and
the following purposes: the borrower will be the co-payees of
(1) For long term working capital; any checks paid to the borrower for
(2) To repay delinquent State or Fed- performance under the assigned con-
eral withholding taxes, local taxes, tract. Alternative payment methods
sales taxes or similar funds that should must have prior written approval by
be held in trust or escrow; and/or DOT OSDBU.
(3) To provide funds for the distribu- (h) Personal Guarantees. Individuals
tion or payment to the owners, part- who own at least a 20% ownership in-
ners or shareholders of the business; terest in the borrower shall personally
and/or guarantee the STLP loan. DOT
(4) To retire short or long-term debt. OSDBU, in its discretion and in con-
(f) Non-compliance by the DBE in sulting with the Participating Lender,
using the STLP loan for purposes not may require other appropriate guaran-
consistent with these regulations will tees for the loan as well.
result in a non-renewal of the STLP (i) Collateral. All advances under the
loan and in forfeiture of the STLP loan STLP loan must be secured, at a min-
guarantee to the PL on any ineligible imum, by the assignment of the pro-
principal advances requested by the ceeds due under the transportation-re-
borrower and made by the PL. lated contract(s) being funded with
(g) Disbursements. STLP funds may loan proceeds (the Assigned Contract).
only be released to an eligible borrower The Participating Lender must have
upon the submission and verification of first lien position on the Accounts Re-
a valid written accounts receivable in- ceivable generated by the Assigned

voice, showing labor and/or materials Contract. The Participating Lender
155
and/or DOT OSDBU may request addi- (d) A repayment agreement between
tional collateral on any loan request or the holder and a State agency pro-
loan guarantee request in order to viding child support enforcement serv-
mitigate the credit risk and reduce po- ices.
tential defaults and loan losses.
(j) Key Person Life Insurance. The as- § 22.19 Credit criteria.
signment of existing life insurance An applicant for a STLP loan must
policies of personal guarantors or other be creditworthy and demonstrate an
individuals critical to the borrower’s ability to repay the loan as well as sat-
operations may be required by the Par- isfactory handling of the repayment of
ticipating Lender and/or DOT OSDBU past and current debts. The Partici-
in certain instances; and it is encour- pating Lender and DOT OSDBU shall
aged for those business applicants that consider:
do not have a management succession (a) Character, reputation, and credit
plan clearly in place or where a per- history of the applicant, its principals
sonal guarantee provides nominal fi- and owners, and all other guarantors;
nancial strength to the credit. (b) Experience and depth of key man-
agement in the industry;
§ 22.15 Delinquency on Federal, State, (c) Financial strength of the busi-
or Municipality Debt. ness;
(d) Past earnings, projected earnings
(a) The borrower must not be delin- and cash flow, and work in progress;
quent on any Federal, State, or mu- (e) Ability to repay the loan;
nicipality debt, including tax debts. (f) Sufficient equity to operate on a
Further, none of the principals and/or sound financial basis; and
owners of the borrower can be delin- (g) Capacity to perform under the
quent on any Federal, State, or mu- transportation-related contract(s).
nicipality debt, including personal tax
debt. The borrower must acknowledge
its status in writing as part of any
Subpart C—Participating Lenders
STLP loan guarantee application. Par- § 22.21 Participation criteria.
ticipating Lenders and the DOT
OSDBU must verify the borrower’s sta- A lender who participates in the
tus through the use of business and STLP must meet the following cri-
personal credit reports, as well as other teria:
appropriate Federal and State data- (a) It must operate as a lending insti-
bases. tution certified by the Federal Deposit
Insurance Corporation (FDIC), Federal
(b) If any delinquencies are deter-
Reserve Board, Office of the Comp-
mined during the application process,
troller of the Currency, Office of Thrift
consideration of the request must be
Supervision, Community Development
suspended until the delinquency is sat-
Corporation (CDC), or Community De-
isfactorily resolved, as determined and
velopment Financial Institution
approved by the Director. If the delin-
(CDFI), for at least five (5) years;
quency cannot be resolved within a
(b) It must demonstrate a philosophy
reasonable amount of time, the loan re-
and history of lending to small, dis-
quest must be declined.
advantaged and women-owned busi-
§ 22.17 Compliance with child support nesses in their communities. Informa-
obligations. tion will be requested by the Director
on the number of short-term loans
Any holder of 50% or more of the made to companies listed in paragraph
ownership interest in the recipient of a (a)(5) of § 22.11. The Participating Lend-
STLP Loan must certify that he or she er shall submit information showing
is not more than 60 days delinquent on its efforts in relationship to its overall
any obligation to pay child support portfolio;
arising under: (c) It must demonstrate experience in
(a) An administrative order; administering monitored lines of cred-
(b) A court order; it, such as construction loans, accounts
(c) A repayment agreement between receivable financing, and/or contract

the holder and a custodial parent; or financing for at least two years. Such
156
experience should be held by any Par- http://www.osdbu.dot.gov/financial/docs/

ticipating Lender representative man- CertlLobbyinglDOTlFl2308-1.pdf.
aging, reviewing or authorizing STLP
loan portfolios; § 22.23 Agreements.
(d) It must have at least two (2) years (a) DOT OSDBU may enter into a co-
experience with other federal govern- operative agreement with a lender that
ment lending programs such as U.S. meets the criteria defined in § 22.21 in
Small Business Administration (SBA), order for the lender to become a Par-
Agriculture Rural Development, Bu-
ticipating Lender in the STLP. Such
reau of Indian Affairs (BIA), Economic
an agreement does not obligate DOT
Development Administration (EDA),
OSDBU to participate in any specific
Department of Housing and Urban De-
proposed loan that a lender may sub-
velopment (HUD), Export Import Bank
of the United States and/or state loan mit. The existence of a cooperative
programs. agreement does not limit the rights of
(e) It must have at least a satisfac- DOT OSDBU to deny a specific loan or
tory or better Community Reinvest- establish general policies. The current
ment Act (CRA) rating; cooperative agreement is available at
(f) It must designate a Participating http://www.osdbu.dot.gov/financial/docs/
Lender representative to effectively CooplAgreement.pdf.
administer the STLP loan portfolio; (b) The cooperative agreement is gen-
(g) It must have the ability to evalu- erally for a minimum period of twenty-
ate, process, close, disburse, service four (24) months. DOT OSDBU will con-
and liquidate STLP loans; sider the cooperative agreement for re-
(h) It must demonstrate the ability newal at the end of the designated
to implement, monitor and manage a term. If a cooperative agreement has
two-party payee check system, in expired, no further applications for the
which the Participating Lender and STLP shall be submitted to DOT
borrower are joint payees of any OSDBU by the Participating Lender
checks paid to the borrower for per- until a new cooperative agreement is
formance under the assigned con- executed by both parties.
tract(s); (c) Unless instructed otherwise by
(i) It must not currently be debarred DOT OSDBU, after the expiration of
or suspended from participation in a the cooperative agreement, the Par-
government contract or delinquent on ticipating Lender will complete the
a government debt. The Participating documentation of any loans which have
lender must submit a current form been given final DOT OSDBU approval
DOT F 2309–1 Certification Regarding prior to expiration of the cooperative
Debarment, Suspension. The certifi- agreement.
cation form is available at http://
(d) Following the expiration of the
www.osdbu.dot.gov/financial/docs/
cooperative agreement, the Partici-
CertlDebarmentlDOTlFl2309-1.pdf.
pating Lender may, subject to the writ-
(j) It must be a drug-free workplace.
ten concurrence of DOT OSDBU, sell
The Participating Lender must execute
current form DOT F 2307–1 Drug-Free its STLP loans to another bank or to
Workplace Act Certification For A another Participating Lender that as-
Grantee Other Than An Individual. The sumes the original rights and respon-
certification form is available at http:// sibilities to fund, service and collect
www.osdbu.dot.gov/financial/docs/ the loan or loans.
CertlDrug-FreelDOTlFl2307-1.pdf.;
§ 22.25 Lender deliverables and deliv-
and ery schedule.
(k) It must certify that no Federal
funds will be utilized for lobbying by All Participating Lenders must ad-
executing a current form DOT F 2308–1 here to certain required periodic re-
Certificate Regarding Lobbying For ports, submissions, and other actions
Contracts, Grants, Loans, and Coopera- that are outlined in the cooperative
tive Agreements in compliance with agreement and the loan guarantee
section 1352, title 21, of the U.S. Code. agreements, as well as to the required
The certification form is available at due dates to DOT OSDBU.
157
§ 22.27 Eligible reimbursements to par- § 22.29 DOT access to participating

ticipating lenders. lenders files.
Participating Lenders will be reim- A Participating Lender must allow
bursed by DOT OSDBU for reasonable the authorized representatives of DOT
expenses and costs that are incurred in OSDBU, as well as representatives of
the processing, administration, and the Office of Inspector General (OIG)
monitoring of a STLP loan. The Par- and General Accountability Office
(GAO), access to its STLP loan files to
ticipating Lender will be reimbursed as
review, inspect, and copy all records
follows:
and documents pertaining to DOT
(a) Processing/Underwriting Fee. A fee, OSDBU guaranteed loans. Record re-
as specified in the cooperative agree- tention of all relevant documents and
ment will be reimbursed by DOT other materials is specified in the co-
OSDBU, with a minimum fee of not operative agreement between DOT
less than one thousand ($1,000), per ap- OSDBU and the Participating Lender.
proved STLP loan guarantee, provided
that DOT OSDBU receives proper noti- § 22.31 Suspension or revocation of eli-
fication of the activation date of the gibility to participate.
STLP loan. (a) DOT OSDBU may suspend or re-
(b) Additional Administrative Fee: For voke the eligibility of a Participating
total loan amounts of $150,000.00 or Lender to participate in the STLP by
less, the Participating Lender can re- giving written notice in accordance
quest an additional one-half (1⁄2) per- with the terms and conditions cited in
cent administrative fee for the in- the cooperative agreement. Such no-
creased loan monitoring and adminis- tice may be given because of a viola-
tion of DOT OSDBU regulations; a
trative assistance required to process
breach of any agreement with DOT
the loan. The request must be sup-
OSDBU; a change of circumstance re-
ported with the information specified
sulting in the Participating Lender’s
in the cooperative agreement. inability to meet operational require-
(c) Travel Expenses. For any pre-ap- ments; or a failure to engage in pru-
proved travel expenses, the Partici- dent lending practices. A suspension or
pating Lender will be reimbursed for revocation will not invalidate a loan
certain costs, provided that paragraphs guarantee previously approved by DOT
(c)(1) and (2) of this section are met: OSDBU, providing that the specific
(1) A written request for travel, along loan was handled in accordance with
with a statement of the purpose of the its guarantee agreement, the coopera-
travel and proposed cost estimate, is tive agreement and/or these regula-
submitted for DOT OSDBU for its ap- tions.
proval no less than ten (10) business (b) The written notice to suspend or
days prior to travel; and revoke participation in the STLP will
(2) A travel invoice accompanied by a specify the corrective actions that the
written report explaining the findings Participating Lender must take, as
of the travel is submitted to DOT well as the time period allowed for
OSDBU no later than thirty (30) days cure, prior to DOT OSDBU considering
a termination of the cooperative agree-
following the approved travel. Pay-
ment.
ment or reimbursement for travel shall
be in accordance with the Joint Travel § 22.33 Termination of participation in
Regulations, Federal Travel Regula- the STLP.
tions and DOD FAR 31.205.46. (a) DOT OSDBU Termination for Con-
(d) Attorney Fees. Legal fees incurred venience. DOT OSDBU may terminate a
by the PL may be eligible for reim- cooperative agreement for the conven-
bursement. Prior written approval ience of the government, and without
from DOT OSDBU is required. Attor- cause, upon prior written notice of
ney fees will be reimbursed on a pro- thirty (30) days of its intent to termi-
rata basis in proportion to the percent- nate. Upon termination, DOT OSDBU
age of the government loan guarantee shall remain liable on the pro-rata
in relation to the total loan amount. share of the loan guarantee(s) received
158
by the PL which received the Direc- (b) Supporting documentation may

tor’s final approval, prior to the effec- include, but is not limited to, the fol-
tive date of termination. lowing items: Business, trade or job
(b) Participating Lender’s Termination. performance reference letters; current
The Participating Lender may termi- DBE or SDB eligibility certification
nate a cooperative agreement with letters and/or affidavit; signed and
written notice of sixty (60) days to DOT dated borrower certification that all
OSDBU of its intent to terminate. federal, state and local taxes are cur-
Upon termination, DOT OSDBU shall rent; business tax returns; business fi-
remain liable on the pro-rata share of nancial statements; personal income
the loan guarantee(s) received by the tax returns; personal financial state-
Participating Lender which received ments; schedule of work in progress;
the Director’s final approval, prior to signed and dated copy of transpor-
the effective date of termination of the tation-related contracts; business debt
cooperative agreement. schedule; income and cash flow projec-
(c) DOT OSDBU Termination for tions; and evidence of bonding and in-
Cause. DOT OSDBU may terminate a surance. It also includes, from the Par-
cooperative agreement, in whole or in ticipating Lender, the lender’s internal
part, at any time before the expiration
credit approval memo and analysis and
of the term of the cooperative agree-
other third-party credit verifications
ment or the expiration of any renewal
obtained.
term of the cooperative agreement, and
without allowing any cure period as de- (c) Application packages are sub-
scribed in this section, if it determines mitted directly to a Participating
that the Participating Lender failed to Lender, which will perform its own
comply with any terms and conditions credit review. The Participating Lend-
of its cooperative agreement and such er must initially approve or decline the
failure cannot be reasonably addressed. loan based upon its internal analysis of
DOT OSDBU shall promptly notify the the request. Loans approved by the
Participating Lender in writing of this Participating Lender are then for-
determination and the reasons for the warded to DOT OSDBU for its STLP
termination, together with the effec- eligibility review, independent credit
tive date of termination. review, and for presentation to the
(d) DOT OSDBU may also terminate DOT OSDBU Loan Committee. All loan
for cause any cooperative agreement approvals shall require the final ap-
with a Participating Lender that fails proval of the Director, or the Direc-
to comply with the corrective actions tor’s designee, for the issuance of a
requested in a written notice of suspen- Government Loan Guarantee.
sion of revocation within the specified
cure period, in accordance with the § 22.43 Approval or denial.
terms and conditions further described If a loan guarantee is approved by
in the cooperative agreement. DOT OSDBU, a Guarantee Agreement,
form DOT F 2314–1, will be issued to the
Subpart D—Loan Application Participating Lender. If a loan guar-
Process antee is declined by the Participating
Lender, the Participating Lender is re-
§ 22.41 Application procedures. sponsible for communicating the rea-
(a) A STLP loan guarantee request sons for the decline to the applicant.
application package shall consist of The Participating Lender must notify
the DOT OSDBU Application for Loan the applicant, in writing, of the rea-
Guarantee and supporting documenta- sons for the decline; and a copy of this
tion as outlined below at paragraph (b) notification must be sent to DOT
of this section. The application may be OSDBU. If a loan guarantee is declined
obtained directly from the office of by the DOT OSDBU, DOT OSDBU will
DOT OSDBU, from a current Partici- be responsible for communicating the
pating Lender, or online from the agen- reasons for the decline to the appli-
cy’s Web site, currently at http:// cant. The form is available at http://
osdbu.dot.gov/documents/pdf/stlp/ www.osdbu.dot.gov/financial/docs/
stlpapp.pdf. LoanlGuaranteelDOTlFl2314-1.pdf.
159
§ 22.45 Allowable fees to borrowers. terial adverse change in the financial

condition or business operations of the
(a) Application Fees. The Partici-
pating Lender may charge the appli- borrower to DOT OSDBU.
cant a non-refundable loan application
§ 22.57 Loan reporting requirements.
fee, as determined from time to time
by DOT OSDBU, for each STLP loan The STLP is subject to the require-
application processed, whether a new ments of the Federal Credit Reform
loan request or a renewal request. Act of 1990 (FCRA) that includes cer-
(b) Reasonable Closing Expenses. Pro- tain budgeting and accounting require-
vided the Participating Lender charges ments for Federal credit programs. To
similar fees to its non-STLP borrowers, fulfill the requirements of FCRA, the
the Participating Lender may collect Participating Lender must provide
reasonable closing expenses from the DOT OSDBU prompt written notifica-
borrower, provided that full disclosure tion of the activation date by the time
of such fees is made to the borrower period specified in the cooperative
prior to the loan closing date. These agreement. The Participating Lender
expenses include necessary out-of- must submit to OSDBU a form DOT F
pocket expenses to third parties such 2303–1 Bank Verification Loan Activa-
as filing and recordation fees, as well tion Form that indicates the date in
as loan closing document preparation which the loan has been activated/fund-
fees. ed. The form is available at http://
www.osdbu.dot.gov/financial/docs/
Subpart E—Loan Administration LoanlActivationlDOTlFl2303-1.pdf.
The Participating Lender must also
§ 22.51 Loan closings. provide DOT OSDBU prompt written
(a) The Participating Lender must notification of the date the loan is re-
promptly close all STLP loans in ac- paid and closed. The Participating
cordance with the terms and conditions Lender must submit to OSDBU a form
approved by DOT OSDBU in its Guar- DOT F 2304–1 Bank Acknowledgement
antee Agreement. The Participating Loan Close-Out Form upon full repay-
Lender must report circumstances con- ment of the STLP loan, or upon expira-
cerning any STLP loans not closed tion of the loan guarantee. The form is
within a reasonable time period after available at http://www.osdbu.dot.gov/fi-
DOT OSDBU approval. nancial/docs/LoanlClose-
(b) The Participating Lender uses its OutlDOTlFl2304-1.pdf. To fulfill this
own internal loan closing documents requirement, the Participating Lender
and must use standard banking prac- must also submit a monthly report to
tices and procedures to ensure proper the DOT OSDBU detailing the previous
execution of the debt and perfection of month’s activity for their STLP loans.
the collateral. The Participating Lend- The Participating Lender must submit
er must forward copies of all executed
form DOT F 2306–1 Pending Loan Sta-
closing documents and filings to DOT
tus Report and form DOT F 2305–1
OSDBU within the time period speci-
Guaranty Loan Status Report. These
fied in the cooperative agreement.
forms are available at http://
§ 22.53 Loan monitoring and servicing www.osdbu.dot.gov/financial/docs/Pend-
requirements. inglLoanlDOTlFl2306-1.xls and
http://www.osdbu.dot.gov/financial/docs/
The Participating Lender must re-
view STLP principal advance requests, GuarantylLoanlDOTlFl2305-1.xls re-
process loan disbursements, and pay- spectively.
ments, and maintain contact with the
§ 22.59 Loan modifications.
borrower during the term of the loan.
The Participating Lender must mon- Any modification to the terms of the
itor the progress of the project being fi- DOT OSDBU guarantee agreement
nanced and the borrower’s continued must have prior written approval of
compliance with the terms and condi- the Director, and executed in writing
tions of the loan. The Participating as an Addendum to the original guar-

Lender must promptly report any ma- antee agreement.
160
§ 22.61 Loan guarantee extensions. than the costs of loan default and/or
foreclosure.
An extension of the original loan
guarantee may be requested, in writ- (b) In an appropriate situation, DOT
ing, by the Participating Lender. The OSDBU may authorize the Partici-
Participating lender must submit to pating Lender to undertake legal ac-
OSDBU a form DOT F 2310–1 to request tion deemed necessary to collect delin-
an extension of the original loan guar- quent loans and DOT will reimburse
antee for a maximum period of ninety the Participating Lender on a pro rata
(90) days. The form is available at basis in proportion to the loan guar-
http://www.osdbu.dot.gov/financial/docs/ antee percentage for the associated
LoanlExtensionlDOTlFl2310-1.pdf. fees and costs, with prior authorization
The request must comply with the from the Director. Penalties and late
terms and conditions described in the fees are not eligible for reimbursement.
guarantee agreement and with the Any legal action undertaken by the
STLP policies and procedures. All ex- Participating Lender without OSDBU
tension requests must be approved by authorization will not be eligible for a
the Director. pro rata basis reimbursement of the as-
sociated fees and costs. Net recoveries
§ 22.63 Loan close outs. applicable to accrued interest must be
applied on a pro rata basis in propor-
Upon full repayment of the STLP tion to the formula used during the
loan, or upon expiration of the loan term of the loan.
guarantee, the Participating Lender
must submit to OSDBU a form DOT F § 22.69 Claim process.
2304–1 Bank Acknowledgement Loan
Close-Out Form. The form is available After reasonable efforts have been ex-
at http://www.osdbu.dot.gov/financial/ hausted to collect on a delinquent debt,
docs/LoanlClose-OutlDOTlFl2304- the Participating Lender may demand
1.pdf. in writing that DOT OSDBU honor its
loan guarantee, provided however that
§ 22.65 Subordination. the maximum liability of DOT OSDBU
shall not at any time exceed the guar-
DOT OSDBU must not be placed in a
anteed amount. The borrower must be
subordinate position to any other debt.
in default for no less than thirty (30)
§ 22.67 Delinquent loans and loan de- days, and the Participating Lender
faults. must have made written demand for
payment from the borrower, in accord-
(a) The Participating Lender must
ance with the guarantee agreement.
bring to the immediate attention of
the Director any delinquent STLP
loans. The Participating Lender and PART 23—PARTICIPATION OF DIS-
DOT OSDBU are jointly responsible for ADVANTAGED BUSINESS ENTER-
establishing collection procedures and PRISE IN AIRPORT CONCES-
must exercise due diligence with re- SIONS
spect to collection of delinquent debt.
The Participating Lender is responsible Subpart A—General
for initiating actions to recover such
debt. DOT OSDBU must approve any Sec.
compromise of a claim, resolution of a 23.1 What are the objectives of this part?
dispute, suspension or termination of 23.3 What do the terms used in this part
collection action, or referral for litiga- mean?
tion. A work-out solution will only be 23.5 To whom does this part apply?
considered if it is expected to minimize 23.7 Program reviews.
23.9 What are the nondiscrimination and as-
the cost to the federal government in
surance requirements of this part for re-
resolving repayment delinquencies and/ cipients?
or loan default. They must only be 23.11 What compliance and enforcement
used when the borrower is likely to be provisions are used under this part?
able to repay the loan under the terms
23.13 How does the Department issue guid-

of the work-out, and if the cost of es- ance, interpretations, exemptions, and
tablishing the work-out plan is less waivers pertaining to this part?
161
Subpart B—ACDBE programs 23.75 Can recipients enter into long-term,

exclusive agreements with conces-
23.21 Who must submit an ACDBE program sionaires?
to FAA, and when? 23.77 Does this part preempt local require-
23.23 What administrative provisions must ments?
be in a recipient’s ACDBE program? 23.79 Does this part permit recipients to use
23.25 What measures must recipients in- local geographic preferences?
clude in their ACDBE programs to ensure
APPENDIX A TO PART 23—UNIFORM REPORT OF
nondiscriminatory participation of
ACDBE PARTICIPATION
ACDBEs in concessions?
23.27 What information does a recipient AUTHORITY: 49 U.S.C. 47107; 42 U.S.C. 2000d;
have to retain and report about imple- 49 U.S.C. 322; Executive Order 12138.
mentation of its ACDBE program?
SOURCE: 70 FR 14508, Mar. 22, 2005, unless
23.29 What monitoring and compliance pro-
otherwise noted.
cedures must recipients follow?
Subpart C—Certification of ACDBEs Subpart A—General

23.31 What certification standards and pro- § 23.1 What are the objectives of this
cedures do recipients use to certify part?
ACDBEs?
23.33 What size standards do recipients use This part seeks to achieve several ob-
to determine the eligibility of ACDBEs? jectives:
23.35 What is the personal net worth stand- (a) To ensure nondiscrimination in
ard for disadvantaged owners of the award and administration of oppor-
ACDBEs? tunities for concessions by airports re-
23.37 Are firms certified under 49 CFR part ceiving DOT financial assistance;
26 eligible to participate as ACDBEs?
23.39 What other certification requirements (b) To create a level playing field on
apply in the case of ACDBEs? which ACDBEs can compete fairly for
opportunities for concessions;
Subpart D—Goals, Good Faith Efforts, and (c) To ensure that the Department’s
Counting ACDBE program is narrowly tailored
in accordance with applicable law;
23.41 What is the basic overall goal require-
(d) To ensure that only firms that
ment for recipients?
23.43 What are the consultation require- fully meet this part’s eligibility stand-
ments in the development of recipients’ ards are permitted to participate as
overall goals? ACDBEs;
23.45 What are the requirements for submit- (e) To help remove barriers to the
ting overall goal information to the participation of ACDBEs in opportuni-
FAA? ties for concessions at airports receiv-
23.47 What is the base for a recipient’s goals ing DOT financial assistance; and
for concessions other than car rentals?
(f) To provide appropriate flexibility
23.49 What is the base for a recipient’s goals
for car rentals? to airports receiving DOT financial as-
23.51 How are a recipient’s overall goals ex- sistance in establishing and providing
pressed and calculated? opportunities for ACDBEs.
23.53 How do car rental companies count
ACDBE participation toward their goals? § 23.3 What do the terms used in this
23.55 How do recipients count ACDBE par- part mean?
ticipation toward goals for items other Administrator means the Adminis-
than car rentals?
trator of the Federal Aviation Admin-
23.57 What happens if a recipient falls short
of meeting its overall goals?
istration (FAA).
23.59 What is the role of the statutory 10 Affiliation has the same meaning the
percent goal in the ACDBE program? term has in the Small Business Admin-
23.61 Can recipients use quotas or set-asides istration (SBA) regulations, 13 CFR
as part of their ACDBE programs? part 121, except that the provisions of
SBA regulations concerning affiliation
Subpart E—Other Provisions in the context of joint ventures (13
23.71 Does a recipient have to change exist- CFR § 121.103(f)) do not apply to this
part.
ing concession agreements?

23.73 What requirements apply to privately- (1) Except as otherwise provided in 13
owned or leased terminal buildings? CFR part 121, concerns are affiliates of
162
each other when, either directly or in- (1) A business, located on an airport
directly: subject to this part, that is engaged in
(i) One concern controls or has the the sale of consumer goods or services
power to control the other; or to the public under an agreement with
(ii) A third party or parties controls the recipient, another concessionaire,
or has the power to control both; or or the owner or lessee of a terminal, if
(iii) An identity of interest between other than the recipient.
or among parties exists such that af- (2) A business conducting one or
filiation may be found. more of the following covered activi-
(2) In determining whether affiliation ties, even if it does not maintain an of-
exists, it is necessary to consider all fice, store, or other business location
appropriate factors, including common on an airport subject to this part, as
long as the activities take place on the
ownership, common management, and
airport: Management contracts and
contractual relationships. Affiliates
subcontracts, a web-based or other
must be considered together in deter-
electronic business in a terminal or
mining whether a concern meets small
which passengers can access at the ter-
business size criteria and the statutory
minal, an advertising business that
cap on the participation of firms in the
provides advertising displays or mes-
ACDBE program.
sages to the public on the airport, or a
Airport Concession Disadvantaged Busi- business that provides goods and serv-
ness Enterprise (ACDBE) means a con- ices to concessionaires.
cession that is a for-profit small busi-
ness concern— Example to paragraph (2): A supplier of
(1) That is at least 51 percent owned goods or a management contractor main-
tains its office or primary place of business
by one or more individuals who are
off the airport. However the supplier pro-
both socially and economically dis- vides goods to a retail establishment in the
advantaged or, in the case of a corpora- airport; or the management contractor oper-
tion, in which 51 percent of the stock is ates the parking facility on the airport.
owned by one or more such individuals; These businesses are considered concessions
and for purposes of this part.
(2) Whose management and daily (3) For purposes of this subpart, a
business operations are controlled by business is not considered to be ‘‘lo-
one or more of the socially and eco- cated on the airport’’ solely because it
nomically disadvantaged individuals picks up and/or delivers customers
who own it. under a permit, license, or other agree-
Alaska Native Corporation (ANC) ment. For example, providers of taxi,
means any Regional Corporation, Vil- limousine, car rental, or hotel services
lage Corporation, Urban Corporation, are not considered to be located on the
or Group Corporation organized under airport just because they send shuttles
the laws of the State of Alaska in ac- onto airport grounds to pick up pas-
cordance with the Alaska Native sengers or drop them off. A business is
Claims Settlement Act (43 U.S.C. 1601 considered to be ‘‘located on the air-
et seq.) port,’’ however, if it has an on-airport
Car dealership means an establish- facility. Such facilities include in the
ment primarily engaged in the retail case of a taxi operator, a dispatcher; in
sale of new and/or used automobiles. the case of a limousine, a booth selling
Car dealerships frequently maintain re- tickets to the public; in the case of a
pair departments and carry stocks of car rental company, a counter at which
replacement parts, tires, batteries, and its services are sold to the public or a
automotive accessories. Such estab- ready return facility; and in the case of
lishments also frequently sell pickup a hotel operator, a hotel located any-
trucks and vans at retail. In the stand- where on airport property.
ard industrial classification system, (4) Any business meeting the defini-
car dealerships are categorized in tion of concession is covered by this
NAICS code 441110. subpart, regardless of the name given
Concession means one or more of the to the agreement with the recipient,
types of for-profit businesses listed in concessionaire, or airport terminal

paragraph (1) or (2) of this definition: owner or lessee. A concession may be
163
operated under various types of agree- Indian tribe means any Indian tribe,
ments, including but not limited to the band, nation, or other organized group
following: or community of Indians, including
(i) Leases. any ANC, which is recognized as eligi-
(ii) Subleases. ble for the special programs and serv-
(iii) Permits. ices provided by the United States to
(iv) Contracts or subcontracts. Indians because of their status as Indi-
(v) Other instruments or arrange- ans, or is recognized as such by the
ments. State in which the tribe, band, nation,
(5) The conduct of an aeronautical group, or community resides. See defi-
activity is not considered a concession nition of ‘‘tribally-owned concern’’ in
for purposes of this subpart. Aero- this section.
nautical activities include scheduled Joint venture means an association of
and non-scheduled air carriers, air an ACDBE firm and one or more other
taxis, air charters, and air couriers, in firms to carry out a single, for-profit
their normal passenger or freight car- business enterprise, for which the par-
rying capacities; fixed base operators; ties combine their property, capital, ef-
flight schools; recreational service pro- forts, skills and knowledge, and in
viders (e.g., sky-diving, parachute- which the ACDBE is responsible for a
jumping, flying guides); and air tour distinct, clearly defined portion of the
services. work of the contract and whose shares
(6) Other examples of entities that do in the capital contribution, control,
not meet the definition of a concession management, risks, and profits of the
include flight kitchens and in-flight ca- joint venture are commensurate with
terers servicing air carriers, govern- its ownership interest. Joint venture
ment agencies, industrial plants, farm entities are not certified as ACDBEs.
leases, individuals leasing hangar Large hub primary airport means a
space, custodial and security contracts, commercial service airport that has a
telephone and electric service to the number of passenger boardings equal to
airport facility, holding companies, at least one percent of all passenger
and skycap services under contract boardings in the United States.
with an air carrier or airport. Management contract or subcontract
Concessionaire means a firm that means an agreement with a recipient
owns and controls a concession or a or another management contractor
portion of a concession. under which a firm directs or operates
Department (DOT) means the U.S. De- one or more business activities, the as-
partment of Transportation, including sets of which are owned, leased, or oth-
the Office of the Secretary and the erwise controlled by the recipient. The
Federal Aviation Administration managing agent generally receives, as
(FAA). compensation, a flat fee or a percent-
Direct ownership arrangement means a age of the gross receipts or profit from
joint venture, partnership, sublease, li- the business activity. For purposes of
censee, franchise, or other arrange- this subpart, the business activity op-
ment in which a firm owns and con- erated or directed by the managing
trols a concession. agent must be other than an aero-
Good faith efforts means efforts to nautical activity, be located at an air-
achieve an ACDBE goal or other report subject to this subpart, and be en-
quirement of this part that, by their gaged in the sale of consumer goods or
scope, intensity, and appropriateness provision of services to the public.
to the objective, can reasonably be ex- Material amendment means a signifi-
pected to meet the program require- cant change to the basic rights or obli-
ment. gations of the parties to a concession
Immediate family member means fa- agreement. Examples of material
ther, mother, husband, wife, son, amendments include an extension to
daughter, brother, sister, grandmother, the term not provided for in the origi-
grandfather, grandson, granddaughter, nal agreement or a substantial increase
mother-in-law, father-in-law, brother- in the scope of the concession privi-
in-law, sister-in-law, or registered do- lege. Examples of nonmaterial amend-

mestic partner. ments include a change in the name of
164
the concessionaire or a change to the Primary airport means a commercial

payment due dates. service airport that the Secretary de-
Medium hub primary airport means a termines to have more than 10,000 pas-
commercial service airport that has a sengers enplaned annually.
number of passenger boardings equal to Primary industry classification means
at least 0.25 percent of all passenger the North American Industrial Classi-
boardings in the United States but less fication System (NAICS) code designa-
than one percent of such passenger tion that best describes the primary
boardings. business of a firm. The NAICS Manual
Native Hawaiian means any indi- is available through the National Tech-
vidual whose ancestors were natives, nical Information Service (NTIS) of the
prior to 1778, of the area that now com- U.S. Department of Commerce (Spring-
prises the State of Hawaii. field, VA, 22261). NTIS also makes ma-
Native Hawaiian Organization means terials available through its Web site
any community service organization (http://www.ntis.gov/naics).
serving Native Hawaiians in the State Primary recipient means a recipient to
of Hawaii that is a not-for-profit orga- which DOT financial assistance is ex-
nization chartered by the State of Ha- tended through the programs of the
waii, and is controlled by Native Ha- FAA and which passes some or all of it
waiians on to another recipient.
Noncompliance means that a recipient Principal place of business means the
has not correctly implemented the re- business location where the individuals
quirements of this part. who manage the firm’s day-to-day op-
Nonhub primary airport means a com- erations spend most working hours and
mercial service airport that has more where top management’s business
than 10,000 passenger boardings each records are kept. If the offices from
year but less than 0.05 percent of all which management is directed and
passenger boardings in the United where business records are kept are in
States. different locations, the recipient will
Part 26 means 49 CFR part 26, the De- determine the principal place of busi-
partment of Transportation’s disadvan- ness for ACDBE program purposes.
taged business enterprise regulation Race-conscious means a measure or
for DOT-assisted contracts. program that is focused specifically on
assisting only ACDBEs, including
Personal net worth means the net
women-owned ACDBEs. For the pur-
value of the assets of an individual re-
poses of this part, race-conscious meas-
maining after total liabilities are de-
ures include gender-conscious meas-
ducted. An individual’s personal net
ures.
worth (PNW) does not include the fol-
lowing: Race-neutral means a measure or pro-
gram that is, or can be, used to assist
(1) The individual’s ownership inter-
all small businesses, without making
est in an ACDBE firm or a firm that is
distinctions or classifications on the
applying for ACDBE certification; (2)
basis of race or gender.
The individual’s equity in his or her
primary place of residence; and (3) Secretary means the Secretary of
Other assets that the individual can Transportation or his/her designee.
document are necessary to obtain fi- Set-aside means a contracting prac-
nancing or a franchise agreement for tice restricting eligibility for the com-
the initiation or expansion of his or her petitive award of a contract solely to
ACDBE firm (or have in fact been en- ACDBE firms.
cumbered to support existing financing Small Business Administration or SBA
for the individual’s ACDBE business) to means the United States Small Busi-
a maximum of $3 million. The effec- ness Administration.
tiveness of this paragraph (3) of this Small business concern means a for
definition is suspended with respect to profit business that does not exceed the
any application for ACDBE certifi- size standards of § 23.33 of this part.
cation made or any financing or fran- Small hub airport means a publicly
chise agreement obtained after June 20, owned commercial service airport that
2012. has a number of passenger boardings
165
equal to at least 0.05 percent of all pas- Tribally-owned concern means any
senger boardings in the United States concern at least 51 percent owned by an
but less than 0.25 percent of such pas- Indian tribe as defined in this section.
senger boardings. You refers to a recipient, unless a
Socially and economically disadvan- statement in the text of this part or
taged individual means any individual the context requires otherwise (i.e.,
who is a citizen (or lawfully admitted ‘‘You must do XYZ’’ means that recipi-
permanent resident) of the United ents must do XYZ).
States and who is—
(1) Any individual determined by a FR 15616, Apr. 2, 2007; 77 FR 36931, June 20,
recipient to be a socially and economi- 2012]
cally disadvantaged individual on a
case-by-case basis. § 23.5 To whom does this part apply?
(2) Any individual in the following If you are a recipient that has re-
groups, members of which are ceived a grant for airport development
rebuttably presumed to be socially and at any time after January 1988 that
economically disadvantaged: was authorized under Title 49 of the
(i) ‘‘Black Americans,’’ which in- United States Code, this part applies to
cludes persons having origins in any of you.
the Black racial groups of Africa;
(ii) ‘‘Hispanic Americans,’’ which in- § 23.7 Program reviews.
cludes persons of Mexican, Puerto
Rican, Cuban, Dominican, Central or In 2010, and thereafter at the discre-
South American, or other Spanish or tion of the Secretary, the Department
Portuguese culture or origin, regard- will initiate a review of the ACDBE
less of race; program to determine what, if any,
(iii) ‘‘Native Americans,’’ which in- modifications should be made to this
cludes persons who are American Indi- part.
ans, Eskimos, Aleuts, or Native Hawai- [75 FR 16358, Apr. 1, 2010]
ians;
(iv) ‘‘Asian-Pacific Americans,’’ § 23.9 What are the nondiscrimination
which includes persons whose origins and assurance requirements of this
are from Japan, China, Taiwan, Korea, part for recipients?
Burma (Myanmar), Vietnam, Laos, (a) As a recipient, you must meet the
Cambodia (Kampuchea), Thailand, Ma- non-discrimination requirements pro-
laysia, Indonesia, the Philippines, vided in part 26, § 26.7 with respect to
Brunei, Samoa, Guam, the U.S. Trust the award and performance of any con-
Territories of the Pacific Islands (Re- cession agreement, management con-
public of Palau), the Commonwealth of tract or subcontract, purchase or lease
the Northern Marianas Islands, Macao, agreement, or other agreement covered
Fiji, Tonga, Kiribati, Juvalu, Nauru, by this subpart.
Federated States of Micronesia, or (b) You must also take all necessary
Hong Kong; and reasonable steps to ensure non-
(v) ‘‘Subcontinent Asian Americans,’’ discrimination in the award and ad-
which includes persons whose origins ministration of contracts and agree-
are from India, Pakistan, Bangladesh, ments covered by this part.
Bhutan, the Maldives Islands, Nepal or (c) You must include the following
Sri Lanka; assurances in all concession agree-
(vi) Women; ments and management contracts you
(vii) Any additional groups whose execute with any firm after April 21,
members are designated as socially and 2005:
economically disadvantaged by the (1) ‘‘This agreement is subject to the
SBA, at such time as the SBA designa- requirements of the U.S. Department
tion becomes effective. of Transportation’s regulations, 49 CFR
Recipient means any entity, public or part 23. The concessionaire or con-
private, to which DOT financial assist- tractor agrees that it will not discrimi-
ance is extended, whether directly or nate against any business owner be-
through another recipient, through the cause of the owner’s race, color, na-
programs of the FAA. tional origin, or sex in connection with
166
the award or performance of any con- tional circumstances, not likely to be

cession agreement, management con- generally applicable, and not con-
tract, or subcontract, purchase or lease templated in connection with the rule-
agreement, or other agreement covered making that established this part, that
by 49 CFR part 23. make your compliance with a specific
(2) ‘‘The concessionaire or contractor provision of this part impractical. You
agrees to include the above statements must agree to take any steps that the
in any subsequent concession agree- Department specifies to comply with
ment or contract covered by 49 CFR the intent of the provision from which
part 23, that it enters and cause those an exemption is granted. The Secretary
businesses to similarly include the will issue a written response to all ex-
statements in further agreements.’’ emption requests.
(d) You can apply for a waiver of any
§ 23.11 What compliance and enforce- provision of subpart B or D of this part
ment provisions are used under this
part? including, but not limited to, any pro-
visions regarding administrative re-
The compliance and enforcement pro- quirements, overall goals, contract
visions of part 26 (§§ 26.101 and 26.105 goals or good faith efforts. Program
through 26.109) apply to this part in the waivers are for the purpose of author-
same way that they apply to FAA re- izing you to operate an ACDBE pro-
cipients and programs under part 26. gram that achieves the objectives of
[70 FR 14508, Mar. 22, 2005, as amended at 72 this part by means that may differ
FR 15616, Apr. 2, 2007] from one or more of the requirements
of subpart B or D of this part. To re-
§ 23.13 How does the Department issue ceive a program waiver, you must fol-
guidance, interpretations, exemp- low these procedures:
tions, and waivers pertaining to
this part? (1) You must apply through the FAA.
The application must include a specific
(a) Only guidance and interpretations program proposal and address how you
(including interpretations set forth in will meet the criteria of paragraph
certification appeal decisions) con- (d)(2) of this section. Before submitting
sistent with this part 23 and issued your application, you must have had
after April 21, 2005, express the official public participation in developing your
positions and views of the Department proposal, including consultation with
of Transportation or the Federal Avia- the ACDBE community and at least
tion Administration. one public hearing. Your application
(b) The Secretary of Transportation,
must include a summary of the public
Office of the Secretary of Transpor-
participation process and the informa-
tation, and the FAA may issue written
tion gathered through it.
interpretations of or written guidance
(2) Your application must show
concerning this part. Written interpre-
that—
tations and guidance are valid, and ex-
(i) There is a reasonable basis to con-
press the official positions and views of
clude that you could achieve a level of
the Department of Transportation or
ACDBE participation consistent with
the FAA, only if they are issued over
the objectives of this part using dif-
the signature of the Secretary of
ferent or innovative means other than
Transportation or if they contain the
those that are provided in subpart B or
following statement:
D of this part;
The General Counsel of the Department of (ii) Conditions at your airport are ap-
Transportation has reviewed this document propriate for implementing the pro-
and approved it as consistent with the lan- posal;
guage and intent of 49 CFR part 23.
(iii) Your proposal would prevent dis-
(c) You may apply for an exemption crimination against any individual or
from any provision of this part. To group in access to concession opportu-
apply, you must request the exemption nities or other benefits of the program;
in writing from the Office of the Sec- and
retary of Transportation or the FAA. (iv) Your proposal is consistent with
The Secretary will grant the request applicable law and FAA program re-
only if it documents special or excep- quirements.
167
(3) The FAA Administrator has the part 23, except with respect to any pro-
authority to approve your application. vision that is contrary to this part.
If the Administrator grants your appli- (b) If you are a primary airport that
cation, you may administer your does not now have a DBE concessions
ACDBE program as provided in your program, and you apply for a grant of
proposal, subject to the following con- FAA funds for airport planning and de-
ditions: velopment under 49 U.S.C. 47107 et seq.,
(i) ACDBE eligibility is determined you must submit an ACDBE program
as provided in subpart C of this part, to the FAA at the time of your applica-
and ACDBE participation is counted as tion. Timely submission and FAA ap-
provided in §§ 23.53 through 23.55. proval of your ACDBE program are
(ii) Your level of ACDBE participa- conditions of eligibility for FAA finan-
tion continues to be consistent with cial assistance.
the objectives of this part;
(c) If you are the owner of more than
(iii) There is a reasonable limitation
one airport that is required to have an
on the duration of the your modified
ACDBE program, you may implement
program; and
(iv) Any other conditions the Admin- one plan for all your locations. If you
istrator makes on the grant of the do so, you must establish a separate
waiver. ACDBE goal for each location.
(4) The Administrator may end a pro- (d) If you make any significant
gram waiver at any time and require changes to your ACDBE program at
you to comply with this part’s provi- any time, you must provide the amend-
sions. The Administrator may also ex- ed program to the FAA for approval be-
tend the waiver, if he or she determines fore implementing the changes.
that all requirements of this section (e) If you are a non-primary airport,
continue to be met. Any such extension non-commercial service airport, a gen-
shall be for no longer than period origi- eral aviation airport, reliever airport,
nally set for the duration of the pro- or any other airport that does not have
gram waiver. scheduled commercial service, you are
not required to have an ACDBE pro-
FR 15616, Apr. 2, 2007] gram. However, you must take appro-
priate outreach steps to encourage
available ACDBEs to participate as
Subpart B—ACDBE Programs concessionaires whenever there is a
§ 23.21 Who must submit an ACDBE concession opportunity.
program to FAA, and when?
§ 23.23 What administrative provisions
(a) Except as provided in paragraph must be in a recipient’s ACDBE pro-
(e) of this section, if you are a primary gram?
airport that has or was required to
have a concessions DBE program prior (a) If, as a recipient that must have
to April 21, 2005, you must submit a an ACDBE program, the program must
revisesd ACDBE program meeting the include provisions for a policy state-
requirements of this part to the appro- ment, liaison officer, and directory, as
priate FAA regional office for ap- provided in part 26, §§ 26.23, 26.25, and
proval. 26.31, as well as certification of
(1) You must submit this revised pro- ACDBEs as provided by Subpart C of
gram on the same schedule provided for this part. You must include a state-
your first submission of overall goals ment in your program committing you
in § 23.45(a) of this part. to operating your ACDBE program in a
(2) Timely submission and FAA ap- nondiscriminatory manner.
proval of your revised ACDBE program (b) You may combine your provisions
is a condition of eligibility for FAA fi- for implementing these requirements
nancial assistance. under this part and part 26 (e.g., a sin-
(3) Until your new ACDBE program is gle policy statement can cover both
submitted and approved, you must con- Federally-assisted airport contracts
tinue to implement your concessions and concessions; the same individual
DBE program that was in effect before can act as the liaison officer for both
the effective date of this amendment to part 23 and part 26 matters).
168
§ 23.25 What measures must recipients (7) Establishing a business develop-

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

ing ACDBE participation; and rangements with DBEs.
169
(g) As provided in § 23.61 of this part, Subpart C—Certification and

you must not use set-asides and quotas Eligibility of ACDBEs
as means of obtaining ACDBE partici-
pation. § 23.31 What certification standards
and procedures do recipients use to
§ 23.27 What information does a recipi- certify ACDBEs?
ent have to retain and report about (a) As a recipient, you must use, ex-
implementation of its ACDBE pro- cept as provided in this subpart, the
gram? procedures and standards of part 26,
(a) As a recipient, you must retain §§ 26.61–91 for certification of ACDBEs
sufficient basic information about your to participate in your concessions pro-
program implementation, your certifi- gram. Your ACDBE program must in-
cation of ACDBEs, and the award and corporate the use of these standards
performance of agreements and con- and procedures and must provide that
tracts to enable the FAA to determine certification decisions for ACDBEs will
your compliance with this part. You be made by the Unified Certification
must retain this data for a minimum of Program (UCP) in your state (see part
three years following the end of the 26, § 26.81).
concession agreement or other covered (b) The UCP’s directory of eligible
DBEs must specify whether a firm is
contract.
certified as a DBE for purposes of part
(b) Beginning March 1, 2006, you must 26, an ACDBE for purposes of part 23, or
submit an annual report on ACDBE both.
participation using the form found in (c) As an airport or UCP, you must
appendix A to this part. You must sub- review the eligibility of currently cer-
mit the report to the appropriate FAA tified ACDBE firms to make sure that
Regional Civil Rights Office. they meet the eligibility standards of
this part.
§ 23.29 What monitoring and compli- (1) You must complete these reviews
ance procedures must recipients as soon as possible, but in no case later
follow?
than April 21, 2006 or three years from
As a recipient, you must implement the anniversary date of each firm’s
appropriate mechanisms to ensure most recent certification, whichever is
compliance with the requirements of later.
this part by all participants in the pro- (2) You must direct all currently cer-
gram. You must include in your con- tified ACDBEs to submit to you by
cession program the specific provisions April 21, 2006, a personal net worth
to be inserted into concession agree- statement, a certification of disadvan-
ments and management contracts set- tage, and an affidavit of no change.
ting forth the enforcement mechanisms § 23.33 What size standards do recipi-
and other means you use to ensure ents use to determine the eligibility
compliance. These provisions must in- of ACDBEs?
clude a monitoring and enforcement (a) As a recipient, you must, except
mechanism to verify that the work as provided in paragraph (b) of this sec-
committed to ACDBEs is actually per- tion, treat a firm as a small business
formed by the ACDBEs. This mecha- eligible to be certified as an ACDBE if
nism must include a written certifi- its gross receipts, averaged over the
cation that you have reviewed records firm’s previous three fiscal years, do
of all contracts, leases, joint venture not exceed $56.42 million.
agreements, or other concession-re- (b) The following types of businesses
lated agreements and monitored the have size standards that differ from the
work on-site at your airport for this standard set forth in paragraph (a) of
purpose. The monitoring to which this this section:
paragraph refers may be conducted in (1) Banks and financial institutions: $1
conjunction with monitoring of conces- billion in assets;
(2) Car rental companies: $75.23 million
sion performance for other purposes.

average annual gross receipts over the
[77 FR 36931, June 20, 2012] firm’s three previous fiscal years, as
170
adjusted by the Department for infla- stead, in determining whether a firm is

tion every two years from April 3, 2009. an eligible ACDBE, you must take the
(3) Pay telephones: 1,500 employees; following steps:
(4) Automobile dealers: 350 employees. (1) Obtain the resumes or work his-
(c) The Department adjusts the num- tories of the principal owners of the
bers in paragraphs (a) and (b)(2) of this firm and personally interview these in-
section using the Department of Com- dividuals;
merce price deflators for purchases by (2) Analyze the ownership of stock of
State and local governments as the the firm, if it is a corporation;
basis for this adjustment. The Depart- (3) Analyze the bonding and financial
ment publishes a FEDERAL REGISTER capacity of the firm;
document informing the public of each (4) Determine the work history of the
adjustment. firm, including any concession con-
[77 FR 36931, June 20, 2012] tracts or other contracts it may have
received;
§ 23.35 What is the personal net worth (5) Obtain or compile a list of the li-
standard for disadvantaged owners censes of the firm and its key per-
of ACDBEs? sonnel to perform the concession con-
The personal net worth standard used tracts or other contracts it wishes to
in determining eligibility for purposes receive;
of this part is $1.32 million. Any indi- (6) Obtain a statement from the firm
vidual who has a personal net worth of the type(s) of concession(s) it prefers
exceeding this amount is not a socially to operate or the type(s) of other con-
and economically disadvantaged indi- tract(s) it prefers to perform.
vidual for purposes of this part, even if (b) In reviewing the affidavit re-
the individual is a member of a group quired by part 26, § 26.83(j), you must
otherwise presumed to be disadvan- ensure that the ACDBE firm meets the
taged. applicable size standard in § 23.33.
(c) For purposes of this part, the
FR 36931, June 20, 2012] term prime contractor in part 26,
§ 26.87(i) includes a firm holding a
§ 23.37 Are firms certified under 49 prime contract with an airport conces-
CFR part 26 eligible to participate sionaire to provide goods or services to
as ACDBEs? the concessionaire or a firm holding a
(a) You must presume that a firm prime concession agreement with a re-
that is certified as a DBE under part 26 cipient.
is eligible to participate as an ACDBE. (d) With respect to firms owned by
By meeting the size, disadvantage (in- Alaska Native Corporations (ANCs),
cluding personal net worth), ownership the provisions of part 26, § 26.73(i) do
and control standards of part 26, the not apply under this part. The eligi-
firm will have also met the eligibility bility of ANC-owned firms for purposes
standards for part 23. of this part is governed by § 26.73(h).
(b) However, before certifying such a (e) When you remove a conces-
firm, you must ensure that the dis- sionaire’s eligibility after the conces-
advantaged owners of a DBE certified sionaire has entered a concession
under part 26 are able to control the agreement, because the firm exceeded
firm with respect to its activity in the the small business size standard or be-
concessions program. In addition, you cause an owner has exceeded the per-
are not required to certify a part 26 sonal net worth standard, and the firm
DBE as a part 23 ACDBE if the firm in all other respects remains an eligi-
does not do work relevant to the air- ble DBE, you may continue to count
port’s concessions program. the concessionaire’s participation to-
ward DBE goals during the remainder
§ 23.39 What other certification re- of the current concession agreement.
quirements apply in the case of However, you must not count the con-
ACDBEs? cessionaire’s participation toward DBE
(a) The provisions of part 26, §§ 26.83 goals beyond the termination date for
(c)(2) through (c)(6) do not apply to cer- the concession agreement in effect at
tifications for purposes of this part. In- the time of the decertification (e.g., in
171
a case where the agreement is renewed (b) If your annual car rental conces-
or extended, or an option for continued sion revenues, averaged over the three-
participation beyond the current term years preceding the date on which you
of the agreement is exercised). are required to submit overall goals, do
(f) When UCPs are established in a not exceed $200,000, you are not re-
state (see part 26, § 26.81), the UCP, quired to submit a car rental overall
rather than individual recipients, cer- goal. If your annual revenues for con-
tifies firms for the ACDBE concession cessions other than car rentals, aver-
program. aged over the three years preceding the
(g) You must use the Uniform Appli- date on which you are required to sub-
cation Form found in appendix F to
mit overall goals, do not exceed
part 26. However, you must instruct ap-
$200,000, you are not required to submit
plicants to take the following addi-
tional steps: a non-car rental overall goal.
(1) In the space available in section (c) Each overall goal must cover a
2(B)(7) of the form, the applicant must three-year period. You must review
state that it is applying for certifi- your goals annually to make sure they
cation as an ACDBE. continue to fit your circumstances ap-
(2) With respect to section 4(C) of the propriately. You must report to the
form, the applicant must provide infor- FAA any significant adjustments that
mation on an attached page concerning you make to your goal in the time be-
the address/location, ownership/lease fore your next scheduled submission.
status, current value of property or (d) Your goals established under this
lease, and fees/lease payments paid to part must provide for participation by
the airport. all certified ACDBEs and may not be
(3) The applicant need not complete subdivided into group-specific goals.
section 4(I) and (J). However, the appli- (e) If you fail to establish and imple-
cant must provide information on an ment goals as provided in this section,
attached page concerning any other you are not in compliance with this
airport concession businesses the appli- part. If you establish and implement
cant firm or any affiliate owns and/or goals in a way different from that pro-
operates, including name, location, vided in this part, you are not in com-
type of concession, and start date of pliance with this part. If you fail to
concession.
comply with this requirement, you are
(h) Car rental companies and private
not eligible to receive FAA financial
terminal owners or lessees are not au-
assistance.
thorized to certify firms as ACDBEs.
As a car rental company or private ter- § 23.43 What are the consultation re-
minal owner or lessee, you must obtain quirements in the development of
ACDBE participation from firms which recipients’ overall goals?
a recipient or UCPs have certified as
ACDBEs. (a) As a recipient, you must consult
(i) You must use the certification with stakeholders before submitting
standards of this part to determine the your overall goals to FAA.
ACDBE eligibility of firms that provide (b) Stakeholders with whom you
goods and services to concessionaires. must consult include, but are not lim-
ited to, minority and women’s business
Subpart D—Goals, Good Faith groups, community organizations,
Efforts, and Counting trade associations representing conces-
sionaires currently located at the air-
§ 23.41 What is the basic overall goal port, as well as existing conces-
requirement for recipients? sionaires themselves, and other offi-
(a) If you are a recipient who must cials or organizations which could be
implement an ACDBE program, you expected to have information con-
must, except as provided in paragraph cerning the availability of disadvan-
(b) of this section, establish two sepa- taged businesses, the effects of dis-
rate overall ACDBE goals. The first is crimination on opportunities for
for car rentals; the second is for con- ACDBEs, and the recipient’s efforts to
cessions other than car rentals. increase participation of ACDBEs.
172
§ 23.45 What are the requirements for (h) If the FAA determines that your
submitting overall goal information goals have not been correctly cal-
to the FAA? culated or the justification is inad-
(a) You must submit your overall equate, the FAA may, after consulting
goals to the appropriate FAA Regional with you, adjust your overall goal or
Civil Rights Office for approval. Your race-conscious/race-neutral ‘‘split.’’
first set of overall goals meeting the The adjusted goal represents the FAA’s
requirements of this subpart are due on determination of an appropriate over-
the following schedule: all goal for ACDBE participation in the
(1) If you are a large or medium hub recipient’s concession program, based
primary airport on April 21, 2005, by on relevant data and analysis. The ad-
January 1, 2006. You must make your justed goal is binding on you.
next submissions by October 1, 2008. (i) If a new concession opportunity,
(2) If you are a small hub primary the estimated average annual gross
airport on April 21, 2005, by October 1, revenues of which are anticipated to be
2006. $200,000 or greater, arises at a time that
(3) If you are a nonhub primary air- falls between normal submission dates
port on April 21, 2005, by October 1, for overall goals, you must submit an
2007. appropriate adjustment to your overall
(b) You must then submit new goals goal to the FAA for approval no later
every three years after the date that than 90 days before issuing the solicita-
applies to you. tion for the new concession oppor-
(c) Timely submission and FAA ap- tunity.
proval of your overall goals is a condi-
tion of eligibility for FAA financial as- [70 FR 14508, Mar. 22, 2005, as amended at 77
sistance. FR 36931, June 20, 2012]
(d) In the time before you make your
first submission under paragraph (a) of § 23.47 What is the base for a recipi-
ent’s goal for concessions other
this section, you must continue to use
than car rentals?
the overall goals that have been ap-
proved by the FAA before the effective (a) As a recipient, the base for your
date of this part. goal includes the total gross receipts of
(e) Your overall goal submission concessions, except as otherwise pro-
must include a description of the meth- vided in this section.
od used to calculate your goals and the (b) This base does not include the
data you relied on. You must ‘‘show gross receipts of car rental operations.
your work’’ to enable the FAA to un- (c) The dollar amount of a manage-
derstand how you concluded your goals ment contract or subcontract with a
were appropriate. This means that you non-ACDBE and the gross receipts of
must provide to the FAA the data, cal- business activities to which a manage-
culations, assumptions, and reasoning ment or subcontract with a non-
used in establishing your goals. ACDBE pertains are not added to this
(f) Your submission must include base.
your projection of the portions of your (d) This base does not include any
overall goals you propose to meet
portion of a firm’s estimated gross re-
through use of race-neutral and race-
ceipts that will not be generated from
conscious means, respectively, and the
basis for making this projection (see a concession.
§ 23.51(d)(5)) Example to paragraph (d): A firm operates a
(g) FAA may approve or disapprove restaurant in the airport terminal which
the way you calculated your goal, in- serves the traveling public and under the
cluding your race-neutral/race-con- same lease agreement, provides in-flight ca-
scious ‘‘split,’’ as part of its review of tering service to air carriers. The projected
your plan or goal submission. Except gross receipts from the restaurant are in-
as provided in paragraph (h) of this sec- cluded in the overall goal calculation, while
the gross receipts to be earned by the in-
tion, the FAA does not approve or dis-
flight catering services are not.

approve the goal itself (i.e., the num-
ber).
173
§ 23.49 What is the base for a recipi- (c) Step 1. You must begin your goal
ent’s goal for car rentals? setting process by determining a base
Except in the case where you use the figure for the relative availability of
alternative goal approach of ACDBEs. The following are examples of
§ 23.51(c)(5)(ii), the base for your goal is approaches that you may take toward
the total gross receipts of car rental determining a base figure. These exam-
operations at your airport. You do not ples are provided as a starting point for
include gross receipts of other conces- your goal setting process. Any percent-
sions in this base. age figure derived from one of these ex-
amples should be considered a basis
§ 23.51 How are a recipient’s overall from which you begin when examining
goals expressed and calculated?
the evidence available to you. These
(a) Your objective in setting a goal is examples are not intended as an ex-
to estimate the percentage of the base haustive list. Other methods or com-
calculated under §§ 23.47–23.49 that binations of methods to determine a
would be performed by ACDBEs in the base figure may be used, subject to ap-
absence of discrimination and its ef- proval by the FAA.
fects.
(1) Use DBE Directories and Census Bu-
(1) This percentage is the estimated
reau Data. Determine the number of
ACDBE participation that would occur
if there were a ‘‘level playing field’’ for ready, willing and able ACDBEs in
firms to work as concessionaires for your market area from your ACDBE di-
your airport. rectory. Using the Census Bureau’s
(2) In conducting this goal setting County Business Pattern (CBP) data
process, you are determining the ex- base, determine the number of all
tent, if any, to which the firms in your ready, willing and able businesses
market area have suffered discrimina- available in your market area that per-
tion or its effects in connection with form work in the same NAICS codes.
concession opportunities or related (Information about the CBP data base
business opportunities. may be obtained from the Census Bu-
(3) You must complete the goal-set- reau at their Web site, http://
ting process separately for each of the www.census.gov/epcd/cbp/view/
two overall goals identified in § 23.41 of cbpview.html.) Divide the number of
this part. ACDBEs by the number of all busi-
(b)(1) Each overall concessions goal nesses to derive a base figure for the
must be based on demonstrable evi- relative availability of ACDBEs in your
dence of the availability of ready, will- market area.
ing and able ACDBEs relative to all (2) Use an Active Participants List. De-
businesses ready, willing and able to termine the number of ACDBEs that
participate in your ACDBE program have participated or attempted to par-
(hereafter, the ‘‘relative availability of ticipate in your airport concessions
ACDBEs’’). program in previous years. Determine
(2) You cannot simply rely on the 10
the number of all businesses that have
percent national aspirational goal,
participated or attempted to partici-
your previous overall goal, or past
pate in your airport concession pro-
ACDBE participation rates in your pro-
gram without reference to the relative gram in previous years. Divide the
availability of ACDBEs in your mar- number of ACDBEs who have partici-
ket. pated or attempted to participate by
(3) Your market area is defined by the number for all businesses to derive
the geographical area in which the sub- a base figure for the relative avail-
stantial majority of firms which seek ability of ACDBEs in your market
to do concessions business with the air- area.
port are located and the geographical (3) Use data from a disparity study. Use
area in which the firms which receive a percentage figure derived from data
the substantial majority of conces- in a valid, applicable disparity study.
sions-related revenues are located. (4) Use the goal of another recipient. If
Your market area may be different for another airport or other DOT recipient
different types of concessions. in the same, or substantially similar,
174
market has set an overall goal in com- (ii) Data on employment, self-em-
pliance with this rule, you may use ployment, education, training and
that goal as a base figure for your goal. union apprenticeship programs, to the
(5) Alternative methods. (i) You may extent you can relate it to the opportu-
use other methods to determine a base nities for ACDBEs to perform in your
figure for your overall goal. Any meth- program.
odology you choose must be based on (4) If you attempt to make an adjust-
demonstrable evidence of local market ment to your base figure to account for
conditions and be designed to ulti- the continuing effects of past discrimi-
mately attain a goal that is rationally nation, or the effects of an ongoing
related to the relative availability of ACDBE program, the adjustment must
ACDBEs in your market area. be based on demonstrable evidence that
(ii) In the case of a car rental goal, is logically and directly related to the
where it appears that all or most of the effect for which the adjustment is
goal is likely to be met through the sought.
purchases by car rental companies of (5) Among the information you sub-
vehicles or other goods or services from mit with your overall goal (see 23.45(e)),
ACDBEs, one permissible alternative is you must include description of the
to structure the goal entirely in terms methodology you used to establish the
of purchases of goods and services. In goal, including your base figure and
this case, you would calculate your car the evidence with which it was cal-
rental overall goal by dividing the esti- culated, as well as the adjustments you
mated dollar value of such purchases made to the base figure and the evi-
from ACDBEs by the total estimated dence relied on for the adjustments.
dollar value of all purchases to be made You should also include a summary
by car rental companies. listing of the relevant available evi-
(d) Step 2. Once you have calculated a dence in your jurisdiction and an ex-
base figure, you must examine all rel-
planation of how you used that evi-
evant evidence reasonably available in
dence to adjust your base figure. You
your jurisdiction to determine what
must also include your projection of
adjustment, if any, is needed to the
the portions of the overall goal you ex-
base figure in order to arrive at your
pect to meet through race-neutral and
overall goal.
race-conscious measures, respectively
(1) There are many types of evidence
(see §§ 26.51(c)).
that must be considered when adjust-
ing the base figure. These include, but (e) You are not required to obtain
are not limited to: prior FAA concurrence with your over-
(i) The current capacity of ACDBEs all goal (i.e., with the number itself).
to perform work in your concessions However, if the FAA’s review suggests
program, as measured by the volume of that your overall goal has not been
work ACDBEs have performed in re- correctly calculated, or that your
cent years; and method for calculating goals is inad-
(ii) Evidence from disparity studies equate, the FAA may, after consulting
conducted anywhere within your juris- with you, adjust your overall goal or
diction, to the extent it is not already require that you do so. The adjusted
accounted for in your base figure. overall goal is binding on you.
(2) If your base figure is the goal of (f) If you need additional time to col-
another recipient, you must adjust it lect data or take other steps to develop
for differences in your market area and an approach to setting overall goals,
your concessions program. you may request the approval of the
(3) If available, you must consider FAA Administrator for an interim goal
evidence from related fields that affect and/or goal-setting mechanism. Such a
the opportunities for ACDBEs to form, mechanism must:
grow and compete. These include, but (1) Reflect the relative availability of
are not limited to: ACDBEs in your local market area to
(i) Statistical disparities in the abil- the maximum extent feasible given the
ity of ACDBEs to get the financing, data available to you; and
bonding and insurance required to par- (2) Avoid imposing undue burdens on
ticipate in your program; non-ACDBEs.
175
§ 23.53 How do car rental companies Example to paragraph (f): Car Rental Com-
count ACDBE participation toward pany X signs a regional contract with an
their goals? ACDBE car dealer to supply cars to all five
airports in a state. The five airports each ac-
(a) As a car rental company, you count for 20 percent of X’s gross receipts in
may, in meeting the goal the airport the state. Twenty percent of the value of the
has set for you, include purchases or cars purchased through the ACDBE car deal-
leases of vehicles from any vendor that er would count toward the goal of each air-
is a certified ACDBE. port.
(b) As a car rental company, if you
choose to meet the goal the airport has § 23.55 How do recipients count
set for you by including purchases or ACDBE participation toward goals
leases of vehicles from an ACDBE ven- for items other than car rentals?
dor, you must also submit to the re- (a) You count only ACDBE participa-
cipient documentation of the good tion that results from a commercially
faith efforts you have made to obtain useful function. For purposes of this
ACDBE participation from other part, the term commercially useful
ACDBE providers of goods and services. function has the same meaning as in
(c) While this part does not require part 26, § 26.55(c), except that the re-
you to obtain ACDBE participation quirements of § 26.55(c)(3) do not apply
through direct ownership arrange- to concessions.
ments, you may count such participa- (b) Count the total dollar value of
tion toward the goal the airport has set gross receipts an ACDBE earns under a
for you. concession agreement and the total
(d) The following special rules apply dollar value of a management contract
to counting participation related to car or subcontract with an ACDBE toward
rental operations: the goal. However, if the ACDBE enters
(1) Count the entire amount of the into a subconcession agreement or sub-
cost charged by an ACDBE for repair- contract with a non-ACDBE, do not
ing vehicles, provided that it is reason- count any of the gross receipts earned
able and not excessive as compared by the non-ACDBE.
with fees customarily allowed for simi- (c) When an ACDBE performs as a
lar services.
subconcessionaire or subcontractor for
(2) Count the entire amount of the
a non-ACDBE, count only the portion
fee or commission charged by a ACDBE
of the gross receipts earned by the
to manage a car rental concession
ACDBE under its subagreement.
under an agreement with the conces-
sionaire toward ACDBE goals, provided (d) When an ACDBE performs as a
that it is reasonable and not excessive participant in a joint venture, count a
as compared with fees customarily al- portion of the gross receipts equal to
lowed for similar services. the distinct, clearly defined portion of
(3) Do not count any portion of a fee the work of the concession that the
paid by a manufacturer to a car dealer- ACDBE performs with its own forces
ship for reimbursement of work per- toward ACDBE goals.
formed under the manufacturer’s war- (e) Count the entire amount of fees or
ranty. commissions charged by an ACDBE
(e) For other goods and services, firm for a bona fide service, provided
count participation toward ACDBE that, as the recipient, you determine
goals as provided in part 26, § 26.55 and this amount to be reasonable and not
§ 23.55 of this part. In the event of any excessive as compared with fees cus-
conflict between these two sections, tomarily allowed for similar services.
§ 23.55 controls. Such services may include, but are not
(f) If you have a national or regional limited to, professional, technical, con-
contract, count a pro-rated share of the sultant, legal, security systems, adver-
amount of that contract toward the tising, building cleaning and mainte-
goals of each airport covered by the nance, computer programming, or
contract. Use the proportion of your managerial.
applicable gross receipts as the basis (f) Count 100 percent of the cost of
for making this pro-rated assignment goods obtained from an ACDBE manu-
of ACDBE participation. facturer. For purposes of this part, the
176
term manufacturer has the same mean- § 23.57 What happens if a recipient
ing as in part 26, § 26.55(e)(1)(ii). falls short of meeting its overall
(g) Count 100 percent of the cost of goals?
goods purchased or leased from a (a) You cannot be penalized, or treat-
ACDBE regular dealer. For purposes of ed by the Department as being in non-
this part, the term ‘‘regular dealer’’ compliance with this part, simply be-
has the same meaning as in part 26, cause your ACDBE participation falls
§ 26.55(e)(2)(ii). short of your overall goals. You can be
(h) Count credit toward ACDBE goals penalized or treated as being in non-
for goods purchased from an ACDBE compliance only if you have failed to
which is neither a manufacturer nor a administer your ACDBE program in
regular dealer as follows: good faith.
(1) Count the entire amount of fees or (b) If the awards and commitments
commissions charged for assistance in shown on your Uniform Report of
the procurement of the goods, provided ACDBE Participation (found in Appen-
that this amount is reasonable and not dix A to this Part) at the end of any
excessive as compared with fees cus- fiscal year are less than the overall
tomarily allowed for similar services. goal applicable to that fiscal year, you
Do not count any portion of the cost of must do the following in order to be re-
the goods themselves. garded by the Department as imple-
(2) Count the entire amount of fees or menting your ACDBE program in good
transportation charges for the delivery faith:
of goods required for a concession, pro- (1) Analyze in detail the reasons for
vided that this amount is reasonable the difference between the overall goal
and not excessive as compared with and your awards and commitments in
fees customarily allowed for similar that fiscal year;
services. Do not count any portion of (2) Establish specific steps and mile-
the cost of goods themselves. stones to correct the problems you
(i) If a firm has not been certified as have identified in your analysis and to
an ACDBE in accordance with the enable you to meet fully your goal for
standards in this part, do not count the the new fiscal year;
firm’s participation toward ACDBE (3) (i) If you are a CORE 30 airport or
goals. other airport designated by the FAA,
(j) Do not count the work performed you must submit, within 90 days of the
or gross receipts earned by a firm after end of the fiscal year, the analysis and
its eligibility has been removed toward corrective actions developed under
ACDBE goals. However, if an ACDBE paragraphs (b)(1) and (2) of this section
firm certified on April 21, 2005 is decer- to the FAA for approval. If the FAA ap-
tified because one or more of its dis- proves the report, you will be regarded
advantaged owners do not meet the as complying with the requirements of
personal net worth criterion or the this section for the remainder of the
firm exceeds business size standards of fiscal year.
this part during the performance of a (ii) As an airport not meeting the cri-
contract or other agreement, the firm’s teria of paragraph (b)(3)(i) of this sec-
participation may continue to be tion, you must retain analysis and cor-
counted toward ACDBE goals for the rective actions in your records for
remainder of the term of the contract three years and make it available to
or other agreement (but not extensions the FAA, on request, for their review.
or renewals of such contracts or agree- (4) The FAA may impose conditions
ments). on the recipient as part of its approval
(k) Do not count costs incurred in of the recipient’s analysis and correc-
connection with the renovation, repair, tive actions including, but not limited
or construction of a concession facility to, modifications to your overall goal
(sometimes referred to as the ‘‘build- methodology, changes in your race-
out’’). conscious/race-neutral split, or the in-
(l) Do not count the ACDBE partici- troduction of additional race-neutral
pation of car rental companies toward or race-conscious measures.
your ACDBE achievements toward this (5) You may be regarded as being in
goal. noncompliance with this part, and
177
therefore subject to the remedies in § 23.61 Can recipients use quotas or

§ 23.11 of this part and other applicable set-asides as part of their ACDBE
regulations, for failing to implement programs?
your ACDBE program in good faith if You must not use quotas or set-
any of the following things occur: asides for ACDBE participation in your
(i) You do not submit your analysis program.
and corrective actions to FAA in a
timely manner as required under para-
graph (b)(3) of this section;
Subpart E—Other Provisions
(ii) FAA disapproves your analysis or § 23.71 Does a recipient have to change
corrective actions; or existing concession agreements?
(iii) You do not fully implement:
Nothing in this part requires you to
(A) The corrective actions to which modify or abrogate an existing conces-
you have committed, or sion agreement (one executed before
(B) Conditions that FAA has imposed April 21, 2005) during its term. When an
following review of your analysis and extension or option to renew such an
corrective actions. agreement is exercised, or when a ma-
(c) If information coming to the at- terial amendment is made, you must
tention of FAA demonstrates that cur- assess potential for ACDBE participa-
rent trends make it unlikely that you, tion and may, if permitted by the
as an airport, will achieve ACDBE agreement, use any means authorized
awards and commitments that would by this part to obtain a modified
be necessary to allow you to meet your amount of ACDBE participation in the
overall goal at the end of the fiscal renewed or amended agreement.
year, FAA may require you to make
further good faith efforts, such as § 23.73 What requirements apply to
modifying your race-conscious/race- privately-owned or leased terminal
neutral split or introducing additional buildings?
race-neutral or race-conscious meas- (a) If you are a recipient who is re-
ures for the remainder of the fiscal quired to implement an ACDBE pro-
year. gram on whose airport there is a pri-
[70 FR 14508, Mar. 22, 2005, as amended at 77 vately-owned or leased terminal build-
FR 36931, June 20, 2012] ing that has concessions, or any por-
tion of such a building, this section ap-
§ 23.59 What is the role of the statu- plies to you.
tory 10 percent goal in the ACDBE (b) You must pass through the appli-
program? cable requirements of this part to the
(a) The statute authorizing the private terminal owner or lessee via
ACDBE program provides that, except your agreement with the owner or les-
to the extent the Secretary determines see or by other means. You must en-
otherwise, not less than 10 percent of sure that the terminal owner or lessee
concession businesses are to be complies with the requirements of this
ACDBEs. part.
(b) This 10 percent goal is an aspira- (c) If your airport is a primary air-
tional goal at the national level, which port, you must obtain from the ter-
the Department uses as a tool in evalu- minal owner or lessee the goals and
ating and monitoring DBEs’ opportuni- other elements of the ACDBE program
ties to participate in airport conces- required under this part. You must in-
sions. corporate this information into your
(c) The national 10 percent aspira- concession plan and submit it to the
tional goal does not authorize or re- FAA in accordance with this part.
quire recipients to set overall or con- (d) If the terminal building is at a
cession-specific goals at the 10 percent non-primary commercial service air-
level, or any other particular level, or port or general aviation airport or re-
to take any special administrative liever airport, you must ensure that
steps if their goals are above or below the owner complies with the require-
10 percent. ments in § 23.21(e).
178
§ 23.75 Can recipients enter into long- services to be made by the conces-
term, exclusive agreements with sionaire.
concessionaires? (3) Assurances that any ACDBE par-
(a) Except as provided in paragraph ticipant will be in an acceptable form,
(b) of this section, you must not enter such as a sublease, joint venture, or
into long-term, exclusive agreements partnership.
for concessions. For purposes of this (4) Documentation that ACDBE par-
section, a long-term agreement is one ticipants are properly certified.
having a term longer than five years. (5) A description of the type of busi-
(b) You may enter into a long-term, ness or businesses to be operated (e.g.,
exclusive concession agreement only location, storage and delivery space,
under the following conditions: ‘‘back-of-the-house facilities’’ such as
kitchens, window display space, adver-
(1) Special local circumstances exist
tising space, and other amenities that
that make it important to enter such
will increase the ACDBE’s chance to
agreement, and
succeed).
(2) The responsible FAA regional of-
(6) Information on the investment re-
fice approves your plan for meeting the
quired on the part of the ACDBE and
standards of paragraph (c) of this sec-
any unusual management or financial
tion.
arrangements between the prime con-
(c) In order to obtain FAA approval cessionaire and ACDBE.
of a long-term-exclusive concession (7) Information on the estimated
agreement, you must submit the fol- gross receipts and net profit to be
lowing information to the FAA re- earned by the ACDBE.
gional office:
(1) A description of the special local § 23.77 Does this part preempt local re-
circumstances that warrant a long- quirements?
term, exclusive agreement. (a) In the event that a State or local
(2) A copy of the draft and final leas- law, regulation, or policy differs from
ing and subleasing or other agree- the requirements of this part, the re-
ments. This long-term, exclusive agree- cipient must, as a condition of remain-
ment must provide that: ing eligible to receive Federal financial
(i) A number of ACDBEs that reason- assistance from the DOT, take such
ably reflects their availability in your steps as may be necessary to comply
market area, in the absence of dis- with the requirements of this part.
crimination, to do the types of work (b) You must clearly identify any
required will participate as conces- State or local law, regulation, or policy
sionaires throughout the term of the pertaining to minority, women’s, or
agreement and account for at a per- disadvantaged business enterprise con-
centage of the estimated annual gross cerning airport concessions that adds
receipts equivalent to a level set in ac- to, goes beyond, or imposes more strin-
cordance with §§ 23.47 through 23.49 of gent requirements than the provisions
this part. of this part. FAA will determine
(ii) You will review the extent of whether such a law, regulation, or pol-
ACDBE participation before the exer- icy conflicts with this part, in which
cise of each renewal option to consider case the requirements of this part will
whether an increase or decrease in govern.
ACDBE participation is warranted. (c) If not deemed in conflict by the
(iii) An ACDBE concessionaire that is FAA, you must write and administer
unable to perform successfully will be such a State or local law, policy, or
replaced by another ACDBE conces- regulation separately from the ACDBE
sionaire, if the remaining term of the program.
agreement makes this feasible. In the (d) You must provide copies of any
event that such action is not feasible, such provisions and the legal authority
you will require the concessionaire to supporting them to the FAA with your
make good faith efforts during the re- ACDBE program submission. FAA will
maining term of the agreement to en- not approve an ACDBE program if
courage ACDBEs to compete for the there are such provisions that conflict
purchases and/or leases of goods and with the provisions of this part.
179
(e) However, nothing in this part pre- ations (e.g., manage the parking facilities).
empts any State or local law, regula- ‘‘Goods/services’’ refers to those goods and
tion, or policy enacted by the gov- services purchased by the airport itself or by
concessionaires and management contrac-
erning body of a recipient, or the au-
tors from certified DBEs.
thority of any State or local govern-
Block 5 concerns all non-car rental conces-
ment or recipient to adopt or enforce sion activity covered by 49 CFR part 23 dur-
any law, regulation, or policy relating ing the reporting period, both new or con-
to ACDBEs, as long as the law, regula- tinuing.
tion, or policy does not conflict with In Column A, enter the total concession
this part. gross revenues for concessionaires (prime
and sub) and purchases of goods and services
§ 23.79 Does this part permit recipi- (ACDBE and non-ACDBE combined) at the
ents to use local geographic pref- airport. In Column B, enter the number of
erences? lease agreements, contracts, etc. in effect or
No. As a recipient you must not use taking place during the reporting period in
each participation category for all conces-
a local geographic preference. For pur-
sionaires and purchases of goods and services
poses of this section, a local geographic (ACDBE and non-ACDBE combined).
preference is any requirement that Because, by statute, non-ACDBE manage-
gives an ACDBE located in one place ment contracts do not count as part of the
(e.g., your local area) an advantage base for ACDBE goals, the cells for total
over ACDBEs from other places in ob- management contract participation and
taining business as, or with, a conces- ACDBE participation as a percentage of
sion at your airport. total management contracting dollars are
not intended to be filled in blocks 5, 6, 8, and
9.
In Column C, enter the total gross reve-
nues in each participation category
APPENDIX A TO PART 23—UNIFORM
(ACDBEs) only. In Column D, enter the num-
REPORT OF ACDBE PARTICIPATION ber of lease agreements, contracts, etc., in
INSTRUCTIONS FOR UNIFORM REPORT OF effect or entered into during the reporting
ACDBE PARTICIPATION period in each participation category for all
concessionaires and purchases of goods and
1. Insert name of airport receiving FAA fi- services (ACDBEs only).
nancial assistance and AIP number. Columns E and F are subsets of Column C:
2. Provide the name and contact informa-
break out the total gross revenues listed in
tion (phone, fax, e-mail) for the person FAA
Column C into the portions that are attrib-
should contact with questions about the re-
utable to race-conscious and race-neutral
port.
measures, respectively. Column G is a per-
3a. Provide the annual reporting period to
centage calculation. It answers the question,
which the report pertains (e.g., October 2005–
what percentage of the numbers in Column A
September 2006).
is represented by the corresponding numbers
3b. Provide the date on which the report is
submitted to FAA. in Column C?
4. This block and blocks 5 and 6 concern 6. The numbers in this Block concern only
non-car rental goals and participation only. new non-car rental concession opportunities
In this block, provide the overall non-car that arose during the current reporting pe-
rental percentage goal and the race-con- riod. In other words, the information re-
scious (RC) and race-neutral (RN) compo- quested in Block 6 is a subset of that re-
nents of it. The RC and RN percentages quested in Block 5. Otherwise, this Block is
should add up to the overall percentage goal. filled out in the same way as Block 5.
5. For purposes of this block and blocks 6, 7. Blocks 7–9 concern car rental goals and
8, and 9, the participation categories listed participation. In Block 7, provide the overall
at the left of the block are the following: car rental percentage goal and the race-con-
‘‘Prime Concessions’’ are concessions who scious (RC) and race-neutral (RN) compo-
have a direct relationship with the airport nents of it. The RC and RN percentages
(e.g., a company who has a lease agreement should add up to the overall percentage goal.
directly with the airport to operate a conces- 8. Block 8 is parallel to Block 5, except
sion). A ‘‘subconcession’’ is a firm that has a that it is for car rentals. The instructions for
sublease or other agreement with a prime filling it out are the same as for Block 5.
concessionaire, rather than with the airport 9. Block 9 is parallel to Block 6, except
itself, to operate a concession at the airport. that it is for car rentals. The information re-
A ‘‘management contract’’ is an agreement quested in Block 9 is a subset of that re-

between the airport and a firm to manage a quested in Block 8. The instructions for fill-
portion of the airport’s facilities or oper- ing it out are the same as for Block 6.
180
10. Block 10 instructs recipients to bring firm participating in its program during the
forward the cumulative ACDBE participa- reporting period. If the firm’s participation
tion figures from Blocks 5 and 8, breaking numbers are reflected in Blocks 5–6 and/or 8–
down these figures by race and gender cat- 9, the requested information about that firm
egories. Participation by non-minority should be attached in response to this item.
women-owned firms should be listed in the
‘‘non-minority women’’ column. Participa- UNIFORM REPORT OF ACDBE PARTICIPATION
tion by firms owned by minority women
should be listed in the appropriate minority 1. Name of Recipient and AIP Number:
group column. The ‘‘other’’ column should be 2. Contact Information:
used to reflect participation by individuals 3a. Reporting Period:
who are not a member of a presumptively 3b. Date of Report:
disadvantaged group who have been found 4. Current Non-Car Rental ACDBE Goal:
disadvantaged on a case-by-case basis. Race Conscious Goal ll% Race Neutral
11. This block instructs recipients to at- Goal ll% Overall Goal ll%
tach five information items for each ACDBE
5. Non-car rental A B C D E F G
Cumulative ACDBE participation Total Total Total to Total to RC to RN to % of
dollars number ACDBEs ACDBEs ACDBEs ACDBEs dollars to
(everyone) (everyone) (dollars) (number) (dollars) (dollars) ACDBEs
Prime Concessions.
Subconcessions.
Management Contracts ............... XXXXXXX XXXXXXX .................. .................. .................. .................. XXXXXX
Goods/Services.
Totals.
6. Non-Car rental A B C D E F G
New ACDBE participation Total Total Total to Total to RC to RN to % of
this period dollars number ACDBEs ACDBEs ACDBEs ACDBEs dollars to
Prime Concessions.
Subconcessions.
Management Contracts ............... XXXXXXX XXXXXXX .................. .................. .................. XXXXXX ..................
Goods/Services.
Totals.
7. Current Car Rental ACDBE Goal: Race

Conscious Goal ll% Race Neutral Goal
ll% Overall Goal ll%
8. Car rental A B C D E F G
Cumulative ACDBE participation Total Total Total to Total to RC to RN to % of
dollars number ACDBEs ACDBEs ACDBEs ACDBEs dollars to
Prime Concessions.
Subconcessions.
Goods/Services.
Totals.
9. Car rental A B C D E F G
New ACDBE participation this Total Total Total to Total to RC to RN to % of
period dollars number ACDBEs ACDBEs ACDBEs ACDBEs dollars to
Prime Concessions.
Subconcessions.
Goods/Services.
Totals.
10. Cumulative A B C D E F G H
ACDBE participa- Black Hispanic Asian-Pa- Asian-In- Native Non-minor- Other Totals
tion by race/gender Americans Americans cific Ameri- dian Amer- Americans ity Women
cans icans
Car Rental.
Non-Car Rental.
Totals.
181
11. On an attachment, list the following in- Subpart D—Payments for Moving and
formation for each ACDBE firm partici- Related Expenses
pating in your program during the period of
this report: (1) Firm name; (2) Type of busi- 24.301 Payment for actual reasonable mov-
ness; (3) Beginning and expiration dates of ing and related expenses.
agreement, including options to renew; (4) 24.302 Fixed payment for moving expenses—
Dates that material amendments have been residential moves.
or will be made to agreement (if known); (5) 24.303 Related nonresidential eligible ex-
Estimated gross receipts for the firm during penses.
this reporting period. 24.304 Reestablishment expenses—nonresi-
dential moves.
24.305 Fixed payment for moving expenses—
PART 24—UNIFORM RELOCATION nonresidential moves.
ASSISTANCE AND REAL PROP- 24.306 Discretionary utility relocation pay-
ERTY ACQUISITION FOR FEDERAL ments.
AND FEDERALLY-ASSISTED PRO- Subpart E—Replacement Housing
GRAMS Payments
Subpart A—General 24.401 Replacement housing payment for
180-day homeowner-occupants.
Sec. 24.402 Replacement housing payment for 90-
24.1 Purpose. day occupants.
24.2 Definitions and acronyms. 24.403 Additional rules governing replace-
24.3 No duplication of payments. ment housing payments.
24.4 Assurances, monitoring and corrective 24.404 Replacement housing of last resort.
action.
24.5 Manner of notices. Subpart F—Mobile Homes
24.6 Administration of jointly-funded
projects. 24.501 Applicability.
24.7 Federal Agency waiver of regulations. 24.502 Replacement housing payment for
24.8 Compliance with other laws and regula- 180-day mobile homeowner displaced
tions. from a mobile home, and/or from the ac-
24.9 Recordkeeping and reports. quired mobile home site.
24.10 Appeals. 24.503 Replacement housing payment for 90-
day mobile home occupants.
Subpart B—Real Property Acquisition
Subpart G—Certification
24.101 Applicability of acquisition require-
ments. 24.601 Purpose.
24.102 Basic acquisition policies. 24.602 Certification application.
24.103 Criteria for appraisals. 24.603 Monitoring and corrective action.
24.104 Review of appraisals. APPENDIX A TO PART 24—ADDITIONAL INFOR-
24.105 Acquisition of tenant-owned improve- MATION
ments. APPENDIX B TO PART 24—STATISTICAL REPORT
24.106 Expenses incidental to transfer of FORM
title to the Agency. AUTHORITY: 42 U.S.C. 4601 et seq.; 49 CFR
24.107 Certain litigation expenses. 1.48(cc).
24.108 Donations.
SOURCE: 70 FR 611, Jan. 4, 2005, unless oth-
Subpart C—General Relocation erwise noted.
Requirements
24.201 Purpose.
Subpart A—General
24.202 Applicability. § 24.1 Purpose.
24.203 Relocation notices.
24.204 Availability of comparable replace- The purpose of this part is to promul-
ment dwelling before displacement. gate rules to implement the Uniform
24.205 Relocation planning, advisory serv- Relocation Assistance and Real Prop-
ices, and coordination. erty Acquisition Policies Act of 1970, as
24.206 Eviction for cause. amended (42 U.S.C. 4601 et seq.) (Uni-
24.207 General requirements claims for relo-
cation payments.
form Act), in accordance with the fol-
24.208 Aliens not lawfully present in the lowing objectives:
(a) To ensure that owners of real
United States.
24.209 Relocation payments not considered property to be acquired for Federal and
as income. federally-assisted projects are treated
182
fairly and consistently, to encourage of two or more States or of two or

and expedite acquisition by agreements more political subdivisions of a State
with such owners, to minimize litiga- or States, and any person who has the
tion and relieve congestion in the authority to acquire property by emi-
courts, and to promote public con- nent domain under State law.
fidence in Federal and federally-as- (2) Alien not lawfully present in the
sisted land acquisition programs; United States. The phrase ‘‘alien not
(b) To ensure that persons displaced lawfully present in the United States’’
as a direct result of Federal or feder- means an alien who is not ‘‘lawfully
ally-assisted projects are treated fair- present’’ in the United States as de-
ly, consistently, and equitably so that fined in 8 CFR 103.12 and includes:
such displaced persons will not suffer
(i) An alien present in the United
disproportionate injuries as a result of
States who has not been admitted or
projects designed for the benefit of the
paroled into the United States pursu-
public as a whole; and
(c) To ensure that Agencies imple- ant to the Immigration and Nation-
ment these regulations in a manner ality Act (8 U.S.C. 1101 et seq.) and
that is efficient and cost effective. whose stay in the United States has
not been authorized by the United
§ 24.2 Definitions and acronyms. States Attorney General; and,
(a) Definitions. Unless otherwise (ii) An alien who is present in the
noted, the following terms used in this United States after the expiration of
part shall be understood as defined in the period of stay authorized by the
this section: United States Attorney General or who
(1) Agency. The term Agency means otherwise violates the terms and condi-
the Federal Agency, State, State Agen- tions of admission, parole or authoriza-
cy, or person that acquires real prop- tion to stay in the United States.
erty or displaces a person. (3) Appraisal. The term appraisal
(i) Acquiring Agency. The term acquir- means a written statement independ-
ing Agency means a State Agency, as ently and impartially prepared by a
defined in paragraph (a)(1)(iv) of this qualified appraiser setting forth an
section, which has the authority to ac- opinion of defined value of an ade-
quire property by eminent domain quately described property as of a spe-
under State law, and a State Agency or cific date, supported by the presen-
person which does not have such au- tation and analysis of relevant market
thority. information.
(ii) Displacing Agency. The term dis- (4) Business. The term business means
placing Agency means any Federal any lawful activity, except a farm op-
Agency carrying out a program or eration, that is conducted:
project, and any State, State Agency, (i) Primarily for the purchase, sale,
or person carrying out a program or lease and/or rental of personal and/or
project with Federal financial assist- real property, and/or for the manufac-
ance, which causes a person to be a dis- ture, processing, and/or marketing of
placed person. products, commodities, and/or any
(iii) Federal Agency. The term Federal other personal property;
Agency means any department, Agency,
(ii) Primarily for the sale of services
or instrumentality in the executive
to the public;
branch of the government, any wholly
owned government corporation, the Ar- (iii) Primarily for outdoor adver-
chitect of the Capitol, the Federal Re- tising display purposes, when the dis-
serve Banks and branches thereof, and play must be moved as a result of the
any person who has the authority to project; or
acquire property by eminent domain (iv) By a nonprofit organization that
under Federal law. has established its nonprofit status
(iv) State Agency. The term State under applicable Federal or State law.
Agency means any department, Agency (5) Citizen. The term citizen for pur-
or instrumentality of a State or of a poses of this part includes both citizens
political subdivision of a State, any de- of the United States and noncitizen na-
partment, Agency, or instrumentality tionals.
183
(6) Comparable replacement dwelling. financial means if the homeowner will

The term comparable replacement dwell- receive the full price differential as de-
ing means a dwelling which is: scribed in § 24.401(c), all increased
(i) Decent, safe and sanitary as de- mortgage interest costs as described at
scribed in paragraph 24.2(a)(8) of this § 24.401(d) and all incidental expenses as
section; described at § 24.401(e), plus any addi-
(ii) Functionally equivalent to the tional amount required to be paid
displacement dwelling. The term func- under § 24.404, Replacement housing of
tionally equivalent means that it per- last resort.
forms the same function, and provides (B) A replacement dwelling rented by
the same utility. While a comparable an eligible displaced person is consid-
replacement dwelling need not possess ered to be within his or her financial
every feature of the displacement means if, after receiving rental assist-
dwelling, the principal features must ance under this part, the person’s
be present. Generally, functional monthly rent and estimated average
equivalency is an objective standard, monthly utility costs for the replace-
reflecting the range of purposes for ment dwelling do not exceed the per-
which the various physical features of son’s base monthly rental for the dis-
a dwelling may be used. However, in placement dwelling as described at
determining whether a replacement § 24.402(b)(2).
dwelling is functionally equivalent to (C) For a displaced person who is not
the displacement dwelling, the Agency eligible to receive a replacement hous-
may consider reasonable trade-offs for ing payment because of the person’s
specific features when the replacement failure to meet length-of-occupancy re-
unit is equal to or better than the dis- quirements, comparable replacement
placement dwelling (See appendix A, rental housing is considered to be with-
§ 24.2(a)(6)); in the person’s financial means if an
(iii) Adequate in size to accommo-
Agency pays that portion of the
date the occupants;
monthly housing costs of a replace-
(iv) In an area not subject to unrea-
ment dwelling which exceeds the per-
sonable adverse environmental condi-
son’s base monthly rent for the dis-
tions;
placement dwelling as described in
(v) In a location generally not less
§ 24.402(b)(2). Such rental assistance
desirable than the location of the dis-
must be paid under § 24.404, Replace-
placed person’s dwelling with respect
ment housing of last resort.
to public utilities and commercial and
public facilities, and reasonably acces- (ix) For a person receiving govern-
sible to the person’s place of employment housing assistance before dis-
ment; placement, a dwelling that may reflect
(vi) On a site that is typical in size similar government housing assistance.
for residential development with nor- In such cases any requirements of the
mal site improvements, including cus- government housing assistance pro-
tomary landscaping. The site need not gram relating to the size of the re-
include special improvements such as placement dwelling shall apply. (See
outbuildings, swimming pools, or appendix A, § 24.2(a)(6)(ix).)
greenhouses. (See also § 24.403(a)(2)); (7) Contribute materially. The term
(vii) Currently available to the dis- contribute materially means that during
placed person on the private market the 2 taxable years prior to the taxable
except as provided in paragraph year in which displacement occurs, or
(a)(6)(ix) of this section (See appendix during such other period as the Agency
A, § 24.2(a)(6)(vii)); and determines to be more equitable, a
(viii) Within the financial means of business or farm operation:
the displaced person: (i) Had average annual gross receipts
(A) A replacement dwelling pur- of at least $5,000; or
chased by a homeowner in occupancy (ii) Had average annual net earnings
at the displacement dwelling for at of at least $1,000; or
least 180 days prior to initiation of ne- (iii) Contributed at least 331⁄3 percent
gotiations (180-day homeowner) is con- of the owner’s or operator’s average an-

sidered to be within the homeowner’s nual gross income from all sources.
184
(iv) If the application of the above would preclude reasonable ingress,

criteria creates an inequity or hardship egress, or use of the dwelling by such
in any given case, the Agency may ap- displaced person. (See appendix A,
prove the use of other criteria as deter- § 24.2(a)(8)(vii).)
mined appropriate. (9) Displaced person. (i) General. The
(8) Decent, safe, and sanitary dwelling. term displaced person means, except as
The term decent, safe, and sanitary provided in paragraph (a)(9)(ii) of this
dwelling means a dwelling which meets section, any person who moves from
local housing and occupancy codes. the real property or moves his or her
However, any of the following stand- personal property from the real prop-
ards which are not met by the local erty. (This includes a person who occu-
code shall apply unless waived for good pies the real property prior to its ac-
cause by the Federal Agency funding quisition, but who does not meet the
the project. The dwelling shall: length of occupancy requirements of
(i) Be structurally sound, weather the Uniform Act as described at
tight, and in good repair; § 24.401(a) and § 24.402(a)):
(ii) Contain a safe electrical wiring (A) As a direct result of a written no-
system adequate for lighting and other tice of intent to acquire (see § 24.203(d)),
devices; the initiation of negotiations for, or
(iii) Contain a heating system capa- the acquisition of, such real property
ble of sustaining a healthful tempera- in whole or in part for a project;
ture (of approximately 70 degrees) for a
(B) As a direct result of rehabilita-
displaced person, except in those areas
tion or demolition for a project; or
where local climatic conditions do not
(C) As a direct result of a written no-
require such a system;
tice of intent to acquire, or the acquisi-
(iv) Be adequate in size with respect
tion, rehabilitation or demolition of, in
to the number of rooms and area of liv-
whole or in part, other real property on
ing space needed to accommodate the
which the person conducts a business
displaced person. The number of per-
or farm operation, for a project. How-
sons occupying each habitable room
ever, eligibility for such person under
used for sleeping purposes shall not ex-
this paragraph applies only for pur-
ceed that permitted by local housing
poses of obtaining relocation assist-
codes or, in the absence of local codes,
ance advisory services under § 24.205(c),
the policies of the displacing Agency.
and moving expenses under § 24.301,
In addition, the displacing Agency
§ 24.302 or § 24.303.
shall follow the requirements for sepa-
rate bedrooms for children of the oppo- (ii) Persons not displaced. The fol-
site gender included in local housing lowing is a nonexclusive listing of per-
codes or in the absence of local codes, sons who do not qualify as displaced
the policies of such Agencies; persons under this part:
(v) There shall be a separate, well (A) A person who moves before the
lighted and ventilated bathroom that initiation of negotiations (see
provides privacy to the user and con- § 24.403(d)), unless the Agency deter-
tains a sink, bathtub or shower stall, mines that the person was displaced as
and a toilet, all in good working order a direct result of the program or
and properly connected to appropriate project;
sources of water and to a sewage drain- (B) A person who initially enters into
age system. In the case of a house- occupancy of the property after the
keeping dwelling, there shall be a date of its acquisition for the project;
kitchen area that contains a fully usa- (C) A person who has occupied the
ble sink, properly connected to potable property for the purpose of obtaining
hot and cold water and to a sewage assistance under the Uniform Act;
drainage system, and adequate space (D) A person who is not required to
and utility service connections for a relocate permanently as a direct result
stove and refrigerator; of a project. Such determination shall
(vi) Contains unobstructed egress to be made by the Agency in accordance
safe, open space at ground level; and with any guidelines established by the
(vii) For a displaced person with a Federal Agency funding the project
disability, be free of any barriers which (See appendix A, § 24.2(a)(9)(ii)(D));
185
(E) An owner-occupant who moves as (L) A person who is not lawfully

a result of an acquisition of real prop- present in the United States and who
erty as described in §§ 24.101(a)(2) or has been determined to be ineligible for
24.101(b)(1) or (2), or as a result of the relocation assistance in accordance
rehabilitation or demolition of the real with § 24.208; or
property. (However, the displacement (M) Tenants required to move as a re-
of a tenant as a direct result of any ac- sult of the sale of their dwelling to a
quisition, rehabilitation or demolition person using downpayment assistance
for a Federal or federally-assisted provided under the American Dream
project is subject to this part.); Downpayment Initiative (ADDI) au-
(F) A person whom the Agency deter- thorized by section 102 of the American
mines is not displaced as a direct result Dream Downpayment Act (Pub. L. 108–
of a partial acquisition; 186; codified at 42 U.S.C. 12821).
(G) A person who, after receiving a (10) Dwelling. The term dwelling
notice of relocation eligibility (de- means the place of permanent or cus-
scribed at § 24.203(b)), is notified in tomary and usual residence of a person,
writing that he or she will not be dis- according to local custom or law, in-
placed for a project. Such written noti- cluding a single family house; a single
fication shall not be issued unless the family unit in a two-family, multi-fam-
person has not moved and the Agency ily, or multi-purpose property; a unit
agrees to reimburse the person for any of a condominium or cooperative hous-
expenses incurred to satisfy any binding project; a non-housekeeping unit; a
ing contractual relocation obligations mobile home; or any other residential
entered into after the effective date of unit.
the notice of relocation eligibility; (11) Dwelling site. The term dwelling
site means a land area that is typical in
(H) An owner-occupant who conveys
size for similar dwellings located in the
his or her property, as described in
same neighborhood or rural area. (See
§§ 24.101(a)(2) or 24.101(b)(1) or (2), after
appendix A, § 24.2(a)(11).)
being informed in writing that if a mu-
(12) Farm operation. The term farm op-
tually satisfactory agreement on terms
eration means any activity conducted
of the conveyance cannot be reached, solely or primarily for the production
the Agency will not acquire the prop- of one or more agricultural products or
erty. In such cases, however, any re- commodities, including timber, for sale
sulting displacement of a tenant is sub- or home use, and customarily pro-
ject to the regulations in this part; ducing such products or commodities
(I) A person who retains the right of in sufficient quantity to be capable of
use and occupancy of the real property contributing materially to the opera-
for life following its acquisition by the tor’s support.
Agency; (13) Federal financial assistance. The
(J) An owner who retains the right of term Federal financial assistance means
use and occupancy of the real property a grant, loan, or contribution provided
for a fixed term after its acquisition by by the United States, except any Fed-
the Department of the Interior under eral guarantee or insurance and any in-
Pub. L. 93–477, Appropriations for Na- terest reduction payment to an indi-
tional Park System, or Pub. L. 93–303, vidual in connection with the purchase
Land and Water Conservation Fund, and occupancy of a residence by that
except that such owner remains a dis- individual.
placed person for purposes of subpart D (14) Household income. The term
of this part; household income means total gross in-
(K) A person who is determined to be come received for a 12 month period
in unlawful occupancy prior to or after from all sources (earned and unearned)
the initiation of negotiations, or a per- including, but not limited to wages,
son who has been evicted for cause, salary, child support, alimony, unem-
under applicable law, as provided for in ployment benefits, workers compensa-
§ 24.206. However, advisory assistance tion, social security, or the net income
may be provided to unlawful occupants from a business. It does not include in-
at the option of the Agency in order to come received or earned by dependent

facilitate the project; children and full time students under
186
18 years of age. (See appendix A, agreement between the Agency and the
§ 24.2(a)(14) for examples of exclusions owner to purchase the real property.
to income.) (See appendix A, § 24.2(a)(15)(iv)).
(15) Initiation of negotiations. Unless a (16) Lead Agency. The term Lead
different action is specified in applica- Agency means the Department of
ble Federal program regulations, the Transportation acting through the
term initiation of negotiations means the Federal Highway Administration.
following: (17) Mobile home. The term mobile
(i) Whenever the displacement re- home includes manufactured homes and
sults from the acquisition of the real recreational vehicles used as resi-
property by a Federal Agency or State dences. (See appendix A, § 24.2(a)(17)).
Agency, the initiation of negotiations (18) Mortgage. The term mortgage
means the delivery of the initial writ- means such classes of liens as are com-
ten offer of just compensation by the monly given to secure advances on, or
Agency to the owner or the owner’s the unpaid purchase price of, real prop-
representative to purchase the real erty, under the laws of the State in
property for the project. However, if which the real property is located, to-
the Federal Agency or State Agency gether with the credit instruments, if
issues a notice of its intent to acquire any, secured thereby.
the real property, and a person moves (19) Nonprofit organization. The term
after that notice, but before delivery of nonprofit organization means an organi-
the initial written purchase offer, the zation that is incorporated under the
initiation of negotiations means the ac- applicable laws of a State as a non-
tual move of the person from the prop- profit organization, and exempt from
erty. paying Federal income taxes under sec-
(ii) Whenever the displacement is tion 501 of the Internal Revenue Code
caused by rehabilitation, demolition or (26 U.S.C. 501).
privately undertaken acquisition of the (20) Owner of a dwelling. The term
real property (and there is no related owner of a dwelling means a person who
acquisition by a Federal Agency or a is considered to have met the require-
State Agency), the initiation of negotia- ment to own a dwelling if the person
tions means the notice to the person purchases or holds any of the following
that he or she will be displaced by the interests in real property:
project or, if there is no notice, the ac- (i) Fee title, a life estate, a land con-
tual move of the person from the prop- tract, a 99 year lease, or a lease includ-
erty. ing any options for extension with at
(iii) In the case of a permanent relo- least 50 years to run from the date of
cation to protect the public health and acquisition; or
welfare, under the Comprehensive En- (ii) An interest in a cooperative hous-
vironmental Response Compensation ing project which includes the right to
and Liability Act of 1980 (Pub. L. 96– occupy a dwelling; or
510, or Superfund) (CERCLA) the initi- (iii) A contract to purchase any of
ation of negotiations means the formal the interests or estates described in
announcement of such relocation or § 24.2(a)(1)(i) or (ii) of this section; or
the Federal or federally-coordinated (iv) Any other interest, including a
health advisory where the Federal Gov- partial interest, which in the judgment
ernment later decides to conduct a per- of the Agency warrants consideration
manent relocation. as ownership.
(iv) In the case of permanent reloca- (21) Person. The term person means
tion of a tenant as a result of an acqui- any individual, family, partnership,
sition of real property described in corporation, or association.
§ 24.101(b)(1) through (5), the initiation (22) Program or project. The phrase
of negotiations means the actions de- program or project means any activity
scribed in § 24.2(a)(15)(i) and (ii), except or series of activities undertaken by a
that such initiation of negotiations Federal Agency or with Federal finan-
does not become effective, for purposes cial assistance received or anticipated
of establishing eligibility for reloca- in any phase of an undertaking in ac-
tion assistance for such tenants under cordance with the Federal funding
this part, until there is a written Agency guidelines.
187
(23) Salvage value. The term salvage transportation system; any commu-
value means the probable sale price of nications system, including cable tele-
an item offered for sale to knowledge- vision; and any fixtures, equipment, or
able buyers with the requirement that other property associated with the op-
it be removed from the property at a eration, maintenance, or repair of any
buyer’s expense (i.e., not eligible for re- such system. A utility facility may be
location assistance). This includes publicly, privately, or cooperatively
items for re-use as well as items with owned.
components that can be re-used or re- (32) Utility relocation. The term utility
cycled when there is no reasonable relocation means the adjustment of a
prospect for sale except on this basis. utility facility required by the program
(24) Small business. A small business is or project undertaken by the displacing
a business having not more than 500 Agency. It includes removing and re-
employees working at the site being installing the facility, including nec-
acquired or displaced by a program or essary temporary facilities; acquiring
project, which site is the location of necessary right-of-way on a new loca-
economic activity. Sites occupied sole- tion; moving, rearranging or changing
ly by outdoor advertising signs, dis- the type of existing facilities; and tak-
plays, or devices do not qualify as a ing any necessary safety and protective
business for purposes of § 24.304. measures. It shall also mean con-
(25) State. Any of the several States structing a replacement facility that
of the United States or the District of has the functional equivalency of the
Columbia, the Commonwealth of Puer- existing facility and is necessary for
to Rico, any territory or possession of the continued operation of the utility
the United States, or a political sub- service, the project economy, or se-
division of any of these jurisdictions. quence of project construction.
(26) Tenant. The term tenant means a (33) Waiver valuation. The term waiver
person who has the temporary use and valuation means the valuation process
occupancy of real property owned by used and the product produced when
another. the Agency determines that an ap-
(27) Uneconomic remnant. The term praisal is not required, pursuant to
uneconomic remnant means a parcel of § 24.102(c)(2) appraisal waiver provi-
real property in which the owner is left sions.
with an interest after the partial ac- (b) Acronyms. The following acronyms
quisition of the owner’s property, and are commonly used in the implementa-
which the Agency has determined has tion of programs subject to this regula-
little or no value or utility to the tion:
owner. (1) BCIS. Bureau of Citizenship and
(28) Uniform Act. The term Uniform Immigration Service.
Act means the Uniform Relocation As- (2) FEMA. Federal Emergency Man-
sistance and Real Property Acquisition agement Agency.
Policies Act of 1970 (Pub. L. 91–646, 84
(3) FHA. Federal Housing Adminis-
Stat. 1894; 42 U.S.C. 4601 et seq.), and
tration.
amendments thereto.
(4) FHWA. Federal Highway Adminis-
(29) Unlawful occupant. A person who
tration.
occupies without property right, title
or payment of rent or a person legally (5) FIRREA. Financial Institutions
evicted, with no legal rights to occupy Reform, Recovery, and Enforcement
a property under State law. An Agency, Act of 1989.
at its discretion, may consider such (6) HLR. Housing of last resort.
person to be in lawful occupancy. (7) HUD. U.S. Department of Housing
(30) Utility costs. The term utility costs and Urban Development.
means expenses for electricity, gas, (8) MIDP. Mortgage interest differen-
other heating and cooking fuels, water tial payment.
and sewer. (9) RHP. Replacement housing pay-
(31) Utility facility. The term utility fa- ment.
cility means any electric, gas, water, (10) STURAA. Surface Transpor-
steam power, or materials trans- tation and Uniform Relocation Act

mission or distribution system; any Amendments of 1987.
188
(11) URA. Uniform Relocation Assist- (3) As an alternative to the assurance

ance and Real Property Acquisition requirement described in paragraph
Policies Act of 1970. (a)(1) of this section, a Federal Agency
(12) USDOT. U.S. Department of may provide Federal financial assist-
Transportation. ance to a State Agency after it has ac-
(13) USPAP. Uniform Standards of cepted a certification by such State
Professional Appraisal Practice. Agency in accordance with the require-
ments in subpart G of this part.
§ 24.3 No duplication of payments. (b) Monitoring and corrective action.
The Federal Agency will monitor com-
No person shall receive any payment
pliance with this part, and the State
under this part if that person receives
Agency shall take whatever corrective
a payment under Federal, State, local
action is necessary to comply with the
law, or insurance proceeds which is de- Uniform Act and this part. The Federal
termined by the Agency to have the Agency may also apply sanctions in ac-
same purpose and effect as such pay- cordance with applicable program reg-
ment under this part. (See appendix A, ulations. (Also see § 24.603, of this part).
§ 24.3). (c) Prevention of fraud, waste, and mis-
management. The Agency shall take ap-
§ 24.4 Assurances, monitoring and cor-
rective action. propriate measures to carry out this
part in a manner that minimizes fraud,
(a) Assurances. (1) Before a Federal waste, and mismanagement.
Agency may approve any grant to, or
contract, or agreement with, a State § 24.5 Manner of notices.
Agency under which Federal financial Each notice which the Agency is re-
assistance will be made available for a quired to provide to a property owner
project which results in real property or occupant under this part, except the
acquisition or displacement that is notice described at § 24.102(b), shall be
subject to the Uniform Act, the State personally served or sent by certified
Agency must provide appropriate as- or registered first-class mail, return re-
surances that it will comply with the ceipt requested, and documented in
Uniform Act and this part. A dis- Agency files. Each notice shall be writ-
placing Agency’s assurances shall be in ten in plain, understandable language.
accordance with section 210 of the Uni- Persons who are unable to read and un-
form Act. An acquiring Agency’s assur- derstand the notice must be provided
ances shall be in accordance with sec- with appropriate translation and coun-
tion 305 of the Uniform Act and must seling. Each notice shall indicate the
contain specific reference to any State name and telephone number of a person
law which the Agency believes provides who may be contacted for answers to
an exception to §§ 301 or 302 of the Uni- questions or other needed help.
form Act. If, in the judgment of the
Federal Agency, Uniform Act compli- § 24.6 Administration of jointly-funded
ance will be served, a State Agency projects.
may provide these assurances at one Whenever two or more Federal Agen-
time to cover all subsequent federally- cies provide financial assistance to an
assisted programs or projects. An Agency or Agencies, other than a Fed-
Agency, which both acquires real prop- eral Agency, to carry out functionally
erty and displaces persons, may com- or geographically related activities,
bine its section 210 and section 305 as- which will result in the acquisition of
surances in one document. property or the displacement of a per-
(2) If a Federal Agency or State son, the Federal Agencies may by
Agency provides Federal financial as- agreement designate one such Agency
sistance to a ‘‘person’’ causing dis- as the cognizant Federal Agency. In
placement, such Federal or State Agen- the unlikely event that agreement
cy is responsible for ensuring compli- among the Agencies cannot be reached
ance with the requirements of this as to which Agency shall be the cog-
part, notwithstanding the person’s con- nizant Federal Agency, then the Lead
tractual obligation to the grantee to Agency shall designate one of such

comply. Agencies to assume the cognizant role.
189
At a minimum, the agreement shall set (l) Executive Order 12250—Leadership

forth the federally-assisted activities and Coordination of Non-Discrimina-
which are subject to its terms and cite tion Laws.
any policies and procedures, in addi- (m) Executive Order 12630—Govern-
tion to this part, that are applicable to mental Actions and Interference with
the activities under the agreement. Constitutionally Protected Property
Under the agreement, the cognizant Rights.
Federal Agency shall assure that the (n) Robert T. Stafford Disaster Relief
project is in compliance with the provi- and Emergency Assistance Act, as
sions of the Uniform Act and this part. amended (42 U.S.C. 5121 et seq.).
All federally-assisted activities under (o) Executive Order 12892—Leadership
the agreement shall be deemed a and Coordination of Fair Housing in
project for the purposes of this part. Federal Programs: Affirmatively Fur-
thering Fair Housing (January 17, 1994).
§ 24.7 Federal Agency waiver of regu-
lations. § 24.9 Recordkeeping and reports.
The Federal Agency funding the (a) Records. The Agency shall main-
project may waive any requirement in tain adequate records of its acquisition
this part not required by law if it de- and displacement activities in suffi-
termines that the waiver does not re- cient detail to demonstrate compliance
duce any assistance or protection pro- with this part. These records shall be
vided to an owner or displaced person retained for at least 3 years after each
under this part. Any request for a waiv- owner of a property and each person
er shall be justified on a case-by-case displaced from the property receives
basis. the final payment to which he or she is
entitled under this part, or in accord-
§ 24.8 Compliance with other laws and ance with the applicable regulations of
regulations. the Federal funding Agency, whichever
The implementation of this part is later.
must be in compliance with other ap- (b) Confidentiality of records. Records
plicable Federal laws and imple- maintained by an Agency in accord-
menting regulations, including, but not ance with this part are confidential re-
limited to, the following: garding their use as public informa-
(a) Section I of the Civil Rights Act tion, unless applicable law provides
of 1866 (42 U.S.C. 1982 et seq.). otherwise.
(b) Title VI of the Civil Rights Act of (c) Reports. The Agency shall submit
1964 (42 U.S.C. 2000d et seq.). a report of its real property acquisition
and displacement activities under this
(c) Title VIII of the Civil Rights Act
part if required by the Federal Agency
of 1968 (42 U.S.C. 3601 et seq.), as amend-
funding the project. A report will not
ed.
be required more frequently than every
(d) The National Environmental Pol- 3 years, or as the Uniform Act pro-
icy Act of 1969 (42 U.S.C. 4321 et seq.). vides, unless the Federal funding Agen-
(e) Section 504 of the Rehabilitation cy shows good cause. The report shall
Act of 1973 (29 U.S.C. 790 et seq.). be prepared and submitted using the
(f) The Flood Disaster Protection Act format contained in appendix B of this
of 1973 (Pub. L. 93–234). part.
(g) The Age Discrimination Act of
1975 (42 U.S.C. 6101 et seq.). § 24.10 Appeals.
(h) Executive Order 11063—Equal Op- (a) General. The Agency shall prompt-
portunity and Housing, as amended by ly review appeals in accordance with
Executive Order 12892. the requirements of applicable law and
(i) Executive Order 11246—Equal Em- this part.
ployment Opportunity, as amended. (b) Actions which may be appealed.
(j) Executive Order 11625—Minority Any aggrieved person may file a writ-
Business Enterprise. ten appeal with the Agency in any case
(k) Executive Orders 11988—Flood- in which the person believes that the
plain Management, and 11990—Protec- Agency has failed to properly consider

tion of Wetlands. the person’s application for assistance
190
under this part. Such assistance may Subpart B—Real Property

include, but is not limited to, the per- Acquisition
son’s eligibility for, or the amount of,
a payment required under § 24.106 or § 24.101 Applicability of acquisition re-
§ 24.107, or a relocation payment requirements.
quired under this part. The Agency (a) Direct Federal program or project.
shall consider a written appeal regard- (1) The requirements of this subpart
less of form. apply to any acquisition of real prop-
(c) Time limit for initiating appeal. The erty for a direct Federal program or
Agency may set a reasonable time project, except acquisition for a pro-
limit for a person to file an appeal. The gram or project that is undertaken by
time limit shall not be less than 60 the Tennessee Valley Authority or the
days after the person receives written Rural Utilities Service. (See appendix
notification of the Agency’s determina- A, § 24.101(a).)
tion on the person’s claim. (2) If a Federal Agency (except for
(d) Right to representation. A person the Tennessee Valley Authority or the
has a right to be represented by legal Rural Utilities Service) will not ac-
counsel or other representative in con- quire a property because negotiations
nection with his or her appeal, but fail to result in an agreement, the
solely at the person’s own expense. owner of the property shall be so in-
(e) Review of files by person making ap- formed in writing. Owners of such prop-
peal. The Agency shall permit a person erties are not displaced persons, (see
to inspect and copy all materials perti- §§ 24.2(a)(9)(ii)(E) or (H)), and as such,
nent to his or her appeal, except mate- are not entitled to relocation assist-
rials which are classified as confiden- ance benefits. However, tenants on
tial by the Agency. The Agency may, such properties may be eligible for re-
however, impose reasonable conditions location assistance benefits. (See
on the person’s right to inspect, con- § 24.2(a)(9)).
sistent with applicable laws. (b) Programs and projects receiving
(f) Scope of review of appeal. In decid- Federal financial assistance. The re-
ing an appeal, the Agency shall con- quirements of this subpart apply to
sider all pertinent justification and any acquisition of real property for
other material submitted by the per- programs and projects where there is
son, and all other available informa- Federal financial assistance in any
tion that is needed to ensure a fair and part of project costs except for the ac-
full review of the appeal. quisitions described in paragraphs
(g) Determination and notification after (b)(1) through (5) of this section. The
appeal. Promptly after receipt of all in- relocation assistance provisions in this
part are applicable to any tenants that
formation submitted by a person in
must move as a result of an acquisition
support of an appeal, the Agency shall
described in paragraphs (b)(1) through
make a written determination on the
(5) of this section. Such tenants are
appeal, including an explanation of the
considered displaced persons. (See
basis on which the decision was made,
§ 24.2(a)(9).)
and furnish the person a copy. If the
(1) The requirements of Subpart B do
full relief requested is not granted, the
not apply to acquisitions that meet all
Agency shall advise the person of his or
of the following conditions in para-
her right to seek judicial review of the
graphs (b)(1)(i) through (iv):
Agency decision.
(i) No specific site or property needs
(h) Agency official to review appeal. to be acquired, although the Agency
The Agency official conducting the re- may limit its search for alternative
view of the appeal shall be either the sites to a general geographic area.
head of the Agency or his or her au- Where an Agency wishes to purchase
thorized designee. However, the official more than one site within a general ge-
shall not have been directly involved in ographic area on this basis, all owners
the action appealed. are to be treated similarly. (See appen-

dix A, § 24.101(b)(1)(i).)
191
(ii) The property to be acquired is not than-full-fee acquisition that, in its

part of an intended, planned, or des- judgment, should be covered.
ignated project area where all or sub- (2) The provisions of this subpart do
stantially all of the property within not apply to temporary easements or
the area is to be acquired within spe- permits needed solely to perform work
cific time limits. intended exclusively for the benefit of
(iii) The Agency will not acquire the the property owner, which work may
property if negotiations fail to result not be done if agreement cannot be
in an amicable agreement, and the reached.
owner is so informed in writing. (d) Federally-assisted projects. For
(iv) The Agency will inform the projects receiving Federal financial as-
owner in writing of what it believes to sistance, the provisions of §§ 24.102,
be the market value of the property. 24.103, 24.104, and 24.105 apply to the
(See appendix A, § 24.101(b)(1)(iv) and greatest extent practicable under State
(2)(ii).) law. (See § 24.4(a).)
(2) Acquisitions for programs or
projects undertaken by an Agency or § 24.102 Basic acquisition policies.
person that receives Federal financial (a) Expeditious acquisition. The Agen-
assistance but does not have authority cy shall make every reasonable effort
to acquire property by eminent do- to acquire the real property expedi-
main, provided that such Agency or tiously by negotiation.
person shall: (b) Notice to owner. As soon as fea-
(i) Prior to making an offer for the sible, the Agency shall notify the
property, clearly advise the owner that owner in writing of the Agency’s inter-
it is unable to acquire the property if est in acquiring the real property and
negotiations fail to result in an agree- the basic protections provided to the
ment; and owner by law and this part. (See
(ii) Inform the owner in writing of § 24.203.)
what it believes to be the market value (c) Appraisal, waiver thereof, and invi-
of the property. (See appendix A, tation to owner. (1) Before the initiation
§ 24.101(b)(1)(iv) and (2)(ii).) of negotiations the real property to be
(3) The acquisition of real property acquired shall be appraised, except as
from a Federal Agency, State, or State provided in § 24.102 (c)(2), and the
Agency, if the Agency desiring to make owner, or the owner’s designated rep-
the purchase does not have authority resentative, shall be given an oppor-
to acquire the property through con- tunity to accompany the appraiser dur-
demnation. ing the appraiser’s inspection of the
(4) The acquisition of real property property.
by a cooperative from a person who, as (2) An appraisal is not required if:
a condition of membership in the coop- (i) The owner is donating the prop-
erative, has agreed to provide without erty and releases the Agency from its
charge any real property that is needed obligation to appraise the property; or
by the cooperative. (ii) The Agency determines that an
(5) Acquisition for a program or appraisal is unnecessary because the
project that receives Federal financial valuation problem is uncomplicated
assistance from the Tennessee Valley and the anticipated value of the pro-
Authority or the Rural Utilities Serv- posed acquisition is estimated at
ice. $10,000 or less, based on a review of
(c) Less-than-full-fee interest in real available data.
property. (1) The provisions of this sub- (A) When an appraisal is determined
part apply when acquiring fee title sub- to be unnecessary, the Agency shall
ject to retention of a life estate or a prepare a waiver valuation.
life use; to acquisition by leasing where (B) The person performing the waiver
the lease term, including option(s) for valuation must have sufficient under-
extension, is 50 years or more; and to standing of the local real estate mar-
the acquisition of permanent and/or ket to be qualified to make the waiver
temporary easements necessary for the valuation.
project. However, the Agency may (C) The Federal Agency funding the
apply these regulations to any less- project may approve exceeding the
192
$10,000 threshold, up to a maximum of to purchase the property, including the

$25,000, if the Agency acquiring the real basis for the offer of just compensation
property offers the property owner the and explain its acquisition policies and
option of having the Agency appraise procedures, including its payment of
the property. If the property owner incidental expenses in accordance with
elects to have the Agency appraise the § 24.106. The owner shall be given rea-
property, the Agency shall obtain an sonable opportunity to consider the
appraisal and not use procedures de- offer and present material which the
scribed in this paragraph. (See appen- owner believes is relevant to deter-
dix A, § 24.102(c)(2).) mining the value of the property and to
(d) Establishment and offer of just com- suggest modification in the proposed
pensation. Before the initiation of nego- terms and conditions of the purchase.
tiations, the Agency shall establish an The Agency shall consider the owner’s
amount which it believes is just com- presentation. (See appendix A,
pensation for the real property. The § 24.102(f).)
amount shall not be less than the ap- (g) Updating offer of just compensation.
proved appraisal of the fair market If the information presented by the
value of the property, taking into ac- owner, or a material change in the
count the value of allowable damages character or condition of the property,
or benefits to any remaining property. indicates the need for new appraisal in-
An Agency official must establish the formation, or if a significant delay has
amount believed to be just compensa- occurred since the time of the ap-
tion. (See § 24.104.) Promptly thereafter, praisal(s) of the property, the Agency
the Agency shall make a written offer shall have the appraisal(s) updated or
to the owner to acquire the property obtain a new appraisal(s). If the latest
for the full amount believed to be just appraisal information indicates that a
compensation. (See appendix A, change in the purchase offer is war-
§ 24.102(d).) ranted, the Agency shall promptly re-
(e) Summary statement. Along with the establish just compensation and offer
initial written purchase offer, the that amount to the owner in writing.
owner shall be given a written state- (h) Coercive action. The Agency shall
ment of the basis for the offer of just not advance the time of condemnation,
compensation, which shall include: or defer negotiations or condemnation
(1) A statement of the amount offered or the deposit of funds with the court,
as just compensation. In the case of a or take any other coercive action in
partial acquisition, the compensation order to induce an agreement on the
for the real property to be acquired and price to be paid for the property.
the compensation for damages, if any, (i) Administrative settlement. The pur-
to the remaining real property shall be chase price for the property may ex-
separately stated. ceed the amount offered as just com-
(2) A description and location identi- pensation when reasonable efforts to
fication of the real property and the in- negotiate an agreement at that
terest in the real property to be ac- amount have failed and an authorized
quired. Agency official approves such adminis-
(3) An identification of the buildings, trative settlement as being reasonable,
structures, and other improvements prudent, and in the public interest.
(including removable building equip- When Federal funds pay for or partici-
ment and trade fixtures) which are in- pate in acquisition costs, a written jus-
cluded as part of the offer of just com- tification shall be prepared, which
pensation. Where appropriate, the states what available information, in-
statement shall identify any other sep- cluding trial risks, supports such a set-
arately held ownership interest in the tlement. (See appendix A, § 24.102(i).)
property, e.g., a tenant-owned improve- (j) Payment before taking possession.
ment, and indicate that such interest Before requiring the owner to sur-
is not covered by this offer. render possession of the real property,
(f) Basic negotiation procedures. The the Agency shall pay the agreed pur-
Agency shall make all reasonable ef- chase price to the owner, or in the case
forts to contact the owner or the own- of a condemnation, deposit with the
er’s representative and discuss its offer court, for the benefit of the owner, an
193
amount not less than the Agency’s ap- mines it would create a hardship for
proved appraisal of the fair market the Agency.
value of such property, or the court (3) An appraiser, review appraiser, or
award of compensation in the con- waiver valuation preparer making an
demnation proceeding for the property. appraisal, appraisal review or waiver
In exceptional circumstances, with the valuation may be authorized by the
prior approval of the owner, the Agen- Agency to act as a negotiator for real
cy may obtain a right-of-entry for con- property for which that person has
struction purposes before making pay- made an appraisal, appraisal review or
ment available to an owner. (See appen- waiver valuation only if the offer to ac-
dix A, § 24.102(j).) quire the property is $10,000, or less.
(k) Uneconomic remnant. If the acqui- (See appendix A, § 24.102(n).)
sition of only a portion of a property [70 FR 611, Jan. 4, 2005, as amended at 70 FR
would leave the owner with an uneco- 22611, May 2, 2005]
nomic remnant, the Agency shall offer
to acquire the uneconomic remnant § 24.103 Criteria for appraisals.
along with the portion of the property (a) Appraisal requirements. This sec-
needed for the project. (See § 24.2(a)(27).) tion sets forth the requirements for
(l) Inverse condemnation. If the Agen- real property acquisition appraisals for
cy intends to acquire any interest in Federal and federally-assisted pro-
real property by exercise of the power grams. Appraisals are to be prepared
of eminent domain, it shall institute according to these requirements, which
formal condemnation proceedings and are intended to be consistent with the
not intentionally make it necessary for Uniform Standards of Professional Ap-
the owner to institute legal pro- praisal Practice (USPAP). 1 (See appen-
ceedings to prove the fact of the taking dix A, § 24.103(a).) The Agency may
of the real property. have appraisal requirements that sup-
(m) Fair rental. If the Agency permits plement these requirements, including,
a former owner or tenant to occupy the to the extent appropriate, the Uniform
real property after acquisition for a Appraisal Standards for Federal Land
short term, or a period subject to ter- Acquisition (UASFLA). 2
mination by the Agency on short no- (1) The Agency acquiring real prop-
tice, the rent shall not exceed the fair erty has a legitimate role in contrib-
market rent for such occupancy. (See uting to the appraisal process, espe-
appendix A, § 24.102(m).) cially in developing the scope of work
(n) Conflict of interest. (1) The ap- and defining the appraisal problem.
praiser, review appraiser or person per- The scope of work and development of
forming the waiver valuation shall not an appraisal under these requirements
have any interest, direct or indirect, in depends on the complexity of the ap-
the real property being valued for the praisal problem.
Agency.
Compensation for making an ap- 1 Uniform Standards of Professional Ap-
praisal or waiver valuation shall not be praisal Practice (USPAP). Published by The
based on the amount of the valuation Appraisal Foundation, a nonprofit edu-
estimate. cational organization. Copies may be ordered
(2) No person shall attempt to unduly from The Appraisal Foundation at the fol-
lowing URL: http://
influence or coerce an appraiser, re-
www.appraisalfoundation.org/htm/USPAP2004/
view appraiser, or waiver valuation toc.htm.
preparer regarding any valuation or 2 The ‘‘Uniform Appraisal Standards for
other aspect of an appraisal, review or Federal Land Acquisitions’’ is published by
waiver valuation. Persons functioning the Interagency Land Acquisition Con-
as negotiators may not supervise or ference. It is a compendium of Federal emi-
formally evaluate the performance of nent domain appraisal law, both case and
any appraiser or review appraiser per- statute, regulations and practices. It is
available at http://www.usdoj.gov/enrd/land-
forming appraisal or appraisal review ack/toc.htm or in soft cover format from the
work, except that, for a program or Appraisal Institute at http://
project receiving Federal financial as-
www.appraisalinstitute.org/econom/publications/
sistance, the Federal funding Agency Default.asp and select ‘‘Legal/Regulatory’’ or
may waive this requirement if it deter- call 888–570–4545.
194
(2) The Agency has the responsibility within the reasonable control of the
to assure that the appraisals it obtains owner. (See appendix A, § 24.103(b).)
are relevant to its program needs, re- (c) Owner retention of improvements. If
flect established and commonly accept- the owner of a real property improve-
ed Federal and federally-assisted pro- ment is permitted to retain it for re-
gram appraisal practice, and as a min- moval from the project site, the
imum, complies with the definition of amount to be offered for the interest in
appraisal in § 24.2(a)(3) and the five fol- the real property to be acquired shall
lowing requirements: (See appendix A, be not less than the difference between
§§ 24.103 and 24.103(a).) the amount determined to be just com-
(i) An adequate description of the pensation for the owner’s entire inter-
physical characteristics of the property est in the real property and the salvage
being appraised (and, in the case of a value (defined at § 24.2(a)(24)) of the re-
partial acquisition, an adequate de- tained improvement.
scription of the remaining property), (d) Qualifications of appraisers and re-
including items identified as personal view appraisers. (1) The Agency shall es-
property, a statement of the known tablish criteria for determining the
and observed encumbrances, if any, minimum qualifications and com-
title information, location, zoning, petency of appraisers and review ap-
present use, an analysis of highest and praisers. Qualifications shall be con-
best use, and at least a 5-year sales his- sistent with the scope of work for the
tory of the property. (See appendix A, assignment. The Agency shall review
§ 24.103(a)(1).) the experience, education, training,
(ii) All relevant and reliable ap- certification/licensing, designation(s)
proaches to value consistent with es- and other qualifications of appraisers,
tablished Federal and federally-as- and review appraisers, and use only
sisted program appraisal practices. If those determined by the Agency to be
the appraiser uses more than one ap- qualified. (See appendix A,
proach, there shall be an analysis and § 24.103(d)(1).)
reconciliation of approaches to value (2) If the Agency uses a contract (fee)
used that is sufficient to support the appraiser to perform the appraisal,
appraiser’s opinion of value. (See ap- such appraiser shall be State licensed
pendix A, § 24.103(a).) or certified in accordance with title XI
(iii) A description of comparable of the Financial Institutions Reform,
sales, including a description of all rel- Recovery, and Enforcement Act of 1989
evant physical, legal, and economic (FIRREA) (12 U.S.C. 3331 et seq.).
factors such as parties to the trans-
action, source and method of financing, [70 FR 611, Jan. 4, 2005, as amended at 70 FR
and verification by a party involved in 22611, May 2, 2005]
the transaction.
§ 24.104 Review of appraisals.
(iv) A statement of the value of the
real property to be acquired and, for a The Agency shall have an appraisal
partial acquisition, a statement of the review process and, at a minimum:
value of the damages and benefits, if (a) A qualified review appraiser (see
any, to the remaining real property, § 24.103(d)(1) and appendix A, § 24.104)
where appropriate. shall examine the presentation and
(v) The effective date of valuation, analysis of market information in all
date of appraisal, signature, and cer- appraisals to assure that they meet the
tification of the appraiser. definition of appraisal found in 49 CFR
(b) Influence of the project on just com- 24.2(a)(3), appraisal requirements found
pensation. The appraiser shall disregard in 49 CFR 24.103 and other applicable
any decrease or increase in the fair requirements, including, to the extent
market value of the real property appropriate, the UASFLA, and support
caused by the project for which the the appraiser’s opinion of value. The
property is to be acquired, or by the level of review analysis depends on the
likelihood that the property would be complexity of the appraisal problem.
acquired for the project, other than As needed, the review appraiser shall,
that due to physical deterioration prior to acceptance, seek necessary
195
corrections or revisions. The review ap- tenant-owner who has the right or obli-
praiser shall identify each appraisal re- gation to remove the improvement at
port as recommended (as the basis for the expiration of the lease term.
the establishment of the amount be- (b) Improvements considered to be real
lieved to be just compensation), ac- property. Any building, structure, or
cepted (meets all requirements, but not other improvement, which would be
selected as recommended or approved), considered to be real property if owned
or not accepted. If authorized by the by the owner of the real property on
Agency to do so, the staff review ap- which it is located, shall be considered
praiser shall also approve the appraisal to be real property for purposes of this
(as the basis for the establishment of subpart.
the amount believed to be just com- (c) Appraisal and Establishment of Just
pensation), and, if also authorized to do Compensation for a Tenant-Owned Im-
so, develop and report the amount be- provement. Just compensation for a ten-
lieved to be just compensation. (See ap- ant-owned improvement is the amount
pendix A, § 24.104(a).) which the improvement contributes to
(b) If the review appraiser is unable the fair market value of the whole
to recommend (or approve) an ap- property, or its salvage value, which-
praisal as an adequate basis for the es- ever is greater. (Salvage value is de-
tablishment of the offer of just com- fined at § 24.2(a)(23).)
pensation, and it is determined by the (d) Special conditions for tenant-owned
acquiring Agency that it is not prac- improvements. No payment shall be
tical to obtain an additional appraisal, made to a tenant-owner for any real
the review appraiser may, as part of property improvement unless:
the review, present and analyze market (1) The tenant-owner, in consider-
information in conformance with ation for the payment, assigns, trans-
§ 24.103 to support a recommended (or fers, and releases to the Agency all of
approved) value. (See appendix A, the tenant-owner’s right, title, and in-
§ 24.104(b).) terest in the improvement;
(c) The review appraiser shall prepare (2) The owner of the real property on
a written report that identifies the ap- which the improvement is located dis-
praisal reports reviewed and documents claims all interest in the improvement;
the findings and conclusions arrived at and
during the review of the appraisal(s). (3) The payment does not result in
Any damages or benefits to any re- the duplication of any compensation
maining property shall be identified in otherwise authorized by law.
the review appraiser’s report. The re- (e) Alternative compensation. Nothing
view appraiser shall also prepare a in this subpart shall be construed to
signed certification that states the pa- deprive the tenant-owner of any right
rameters of the review. The certifi- to reject payment under this subpart
cation shall state the approved value, and to obtain payment for such prop-
and, if the review appraiser is author- erty interests in accordance with other
ized to do so, the amount believed to be applicable law.
just compensation for the acquisition. [70 FR 611, Jan. 4, 2005, as amended at 70 FR
(See appendix A, § 24.104(c).) 22611, May 2, 2005]
§ 24.105 Acquisition of tenant-owned § 24.106 Expenses incidental to trans-

improvements. fer of title to the Agency.
(a) Acquisition of improvements. When (a) The owner of the real property
acquiring any interest in real property, shall be reimbursed for all reasonable
the Agency shall offer to acquire at expenses the owner necessarily in-
least an equal interest in all buildings, curred for:
structures, or other improvements lo- (1) Recording fees, transfer taxes,
cated upon the real property to be ac- documentary stamps, evidence of title,
quired, which it requires to be removed boundary surveys, legal descriptions of
or which it determines will be ad- the real property, and similar expenses
versely affected by the use to which incidental to conveying the real prop-
such real property will be put. This erty to the Agency. However, the Agen-
shall include any improvement of a cy is not required to pay costs solely
196
required to perfect the owner’s title to relocation payments and other reloca-
the real property; tion assistance in this part.
(2) Penalty costs and other charges
for prepayment of any preexisting re- § 24.202 Applicability.
corded mortgage entered into in good These requirements apply to the relo-
faith encumbering the real property; cation of any displaced person as de-
and fined at § 24.2(a)(9). Any person who
(3) The pro rata portion of any pre- qualifies as a displaced person must be
paid real property taxes which are allo- fully informed of his or her rights and
cable to the period after the Agency entitlements to relocation assistance
obtains title to the property or effec- and payments provided by the Uniform
tive possession of it, whichever is ear- Act and this regulation. (See appendix
lier. A, § 24.202.)
(b) Whenever feasible, the Agency
shall pay these costs directly to the § 24.203 Relocation notices.
billing agent so that the owner will not (a) General information notice. As soon
have to pay such costs and then seek as feasible, a person scheduled to be
reimbursement from the Agency. displaced shall be furnished with a gen-
§ 24.107 Certain litigation expenses. eral written description of the dis-
placing Agency’s relocation program
The owner of the real property shall which does at least the following:
be reimbursed for any reasonable ex- (1) Informs the person that he or she
penses, including reasonable attorney, may be displaced for the project and
appraisal, and engineering fees, which generally describes the relocation pay-
the owner actually incurred because of ment(s) for which the person may be el-
a condemnation proceeding, if: igible, the basic conditions of eligi-
(a) The final judgment of the court is bility, and the procedures for obtaining
that the Agency cannot acquire the the payment(s);
real property by condemnation; (2) Informs the displaced person that
(b) The condemnation proceeding is he or she will be given reasonable relo-
abandoned by the Agency other than cation advisory services, including re-
under an agreed-upon settlement; or ferrals to replacement properties, help
(c) The court having jurisdiction ren- in filing payment claims, and other
ders a judgment in favor of the owner necessary assistance to help the dis-
in an inverse condemnation proceeding placed person successfully relocate;
or the Agency effects a settlement of (3) Informs the displaced person that
such proceeding. he or she will not be required to move
§ 24.108 Donations. without at least 90 days advance writ-
ten notice (see paragraph (c) of this
An owner whose real property is section), and informs any person to be
being acquired may, after being fully displaced from a dwelling that he or
informed by the Agency of the right to she cannot be required to move perma-
receive just compensation for such nently unless at least one comparable
property, donate such property or any replacement dwelling has been made
part thereof, any interest therein, or available;
any compensation paid therefore, to (4) Informs the displaced person that
the Agency as such owner shall deter- any person who is an alien not lawfully
mine. The Agency is responsible for en- present in the United States is ineli-
suring that an appraisal of the real gible for relocation advisory services
property is obtained unless the owner and relocation payments, unless such
releases the Agency from such obliga- ineligibility would result in excep-
tion, except as provided in § 24.102(c)(2). tional and extremely unusual hardship
to a qualifying spouse, parent, or child,
Subpart C—General Relocation as defined in § 24.208(h); and
Requirements (5) Describes the displaced person’s
right to appeal the Agency’s deter-
§ 24.201 Purpose. mination as to a person’s application
This subpart prescribes general re- for assistance for which a person may
quirements governing the provision of be eligible under this part.
197
(b) Notice of relocation eligibility. Eligi- sistance prior to the initiation of nego-
bility for relocation assistance shall tiations and/or prior to the commit-
begin on the date of a notice of intent ment of Federal financial assistance.
to acquire (described in § 24.203(d)), the (See § 24.2(a)(9)(i)(A).)
initiation of negotiations (defined in
§ 24.2(a)(15)), or actual acquisition, § 24.204 Availability of comparable re-
whichever occurs first. When this oc- placement dwelling before displace-
curs, the Agency shall promptly notify ment.
all occupants in writing of their eligi- (a) General. No person to be displaced
bility for applicable relocation assist- shall be required to move from his or
ance. her dwelling unless at least one com-
(c) Ninety-day notice—(1) General. No parable replacement dwelling (defined
lawful occupant shall be required to at § 24.2 (a)(6)) has been made available
move unless he or she has received at to the person. When possible, three or
least 90 days advance written notice of more comparable replacement dwell-
the earliest date by which he or she
ings shall be made available. A com-
may be required to move.
parable replacement dwelling will be
(2) Timing of notice. The displacing
considered to have been made available
Agency may issue the notice 90 days or
earlier before it expects the person to to a person, if:
be displaced. (1) The person is informed of its loca-
(3) Content of notice. The 90-day no- tion;
tice shall either state a specific date as (2) The person has sufficient time to
the earliest date by which the occupant negotiate and enter into a purchase
may be required to move, or state that agreement or lease for the property;
the occupant will receive a further no- and
tice indicating, at least 30 days in ad- (3) Subject to reasonable safeguards,
vance, the specific date by which he or the person is assured of receiving the
she must move. If the 90-day notice is relocation assistance and acquisition
issued before a comparable replace- payment to which the person is enti-
ment dwelling is made available, the tled in sufficient time to complete the
notice must state clearly that the oc- purchase or lease of the property.
cupant will not have to move earlier (b) Circumstances permitting waiver.
than 90 days after such a dwelling is The Federal Agency funding the
made available. (See § 24.204(a).) project may grant a waiver of the pol-
(4) Urgent need. In unusual cir- icy in paragraph (a) of this section in
cumstances, an occupant may be re- any case where it is demonstrated that
quired to vacate the property on less a person must move because of:
than 90 days advance written notice if (1) A major disaster as defined in sec-
the displacing Agency determines that tion 102 of the Robert T. Stafford Dis-
a 90-day notice is impracticable, such aster Relief and Emergency Assistance
as when the person’s continued occu- Act, as amended (42 U.S.C. 5122);
pancy of the property would constitute
(2) A presidentially declared national
a substantial danger to health or safe-
emergency; or
ty. A copy of the Agency’s determina-
tion shall be included in the applicable (3) Another emergency which re-
case file. quires immediate vacation of the real
(d) Notice of intent to acquire. A notice property, such as when continued occu-
of intent to acquire is a displacing pancy of the displacement dwelling
Agency’s written communication that constitutes a substantial danger to the
is provided to a person to be displaced, health or safety of the occupants or the
including those to be displaced by reha- public.
bilitation or demolition activities from (c) Basic conditions of emergency move.
property acquired prior to the commit- Whenever a person to be displaced is
ment of Federal financial assistance to required to relocate from the displace-
the activity, which clearly sets forth ment dwelling for a temporary period
that the Agency intends to acquire the because of an emergency as described
property. A notice of intent to acquire in paragraph (b) of this section, the

establishes eligibility for relocation as- Agency shall:
198
(1) Take whatever steps are necessary (3) An estimate of the number, type
to assure that the person is tempo- and size of the businesses, farms, and
rarily relocated to a decent, safe, and nonprofit organizations to be displaced
sanitary dwelling; and the approximate number of em-
(2) Pay the actual reasonable out-of- ployees that may be affected.
pocket moving expenses and any rea- (4) An estimate of the availability of
sonable increase in rent and utility replacement business sites. When an
costs incurred in connection with the adequate supply of replacement busi-
temporary relocation; and ness sites is not expected to be avail-
(3) Make available to the displaced able, the impacts of displacing the
person as soon as feasible, at least one businesses should be considered and ad-
comparable replacement dwelling. (For dressed. Planning for displaced busi-
purposes of filing a claim and meeting
nesses which are reasonably expected
the eligibility requirements for a relo-
to involve complex or lengthy moving
cation payment, the date of displace-
processes or small businesses with lim-
ment is the date the person moves from
ited financial resources and/or few al-
the temporarily occupied dwelling.)
ternative relocation sites should in-
§ 24.205 Relocation planning, advisory clude an analysis of business moving
services, and coordination. problems.
(a) Relocation planning. During the (5) Consideration of any special relo-
early stages of development, an Agency cation advisory services that may be
shall plan Federal and federally-as- necessary from the displacing Agency
sisted programs or projects in such a and other cooperating Agencies.
manner that recognizes the problems (b) Loans for planning and preliminary
associated with the displacement of in- expenses. In the event that an Agency
dividuals, families, businesses, farms, elects to consider using the duplicative
and nonprofit organizations and de- provision in section 215 of the Uniform
velop solutions to minimize the ad- Act which permits the use of project
verse impacts of displacement. Such funds for loans to cover planning and
planning, where appropriate, shall pre- other preliminary expenses for the de-
cede any action by an Agency which velopment of additional housing, the
will cause displacement, and should be Lead Agency will establish criteria and
scoped to the complexity and nature of procedures for such use upon the re-
the anticipated displacing activity in- quest of the Federal Agency funding
cluding an evaluation of program re- the program or project.
sources available to carry out timely (c) Relocation assistance advisory serv-
and orderly relocations. Planning may ices—(1) General. The Agency shall
involve a relocation survey or study,
carry out a relocation assistance advi-
which may include the following:
sory program which satisfies the re-
(1) An estimate of the number of
quirements of Title VI of the Civil
households to be displaced including
information such as owner/tenant sta- Rights Act of 1964 (42 U.S.C. 2000d et
tus, estimated value and rental rates of seq.), Title VIII of the Civil Rights Act
properties to be acquired, family char- of 1968 (42 U.S.C. 3601 et seq.), and Exec-
acteristics, and special consideration utive Order 11063 (27 FR 11527, Novem-
of the impacts on minorities, the elder- ber 24, 1962), and offer the services de-
ly, large families, and persons with dis- scribed in paragraph (c)(2) of this sec-
abilities when applicable. tion. If the Agency determines that a
(2) An estimate of the number of person occupying property adjacent to
comparable replacement dwellings in the real property acquired for the
the area (including price ranges and project is caused substantial economic
rental rates) that are expected to be injury because of such acquisition, it
available to fulfill the needs of those may offer advisory services to such
households displaced. When an ade- person.
quate supply of comparable housing is (2) Services to be provided. The advi-
not expected to be available, the Agen- sory program shall include such meas-
cy should consider housing of last re- ures, facilities, and services as may be
sort actions. necessary or appropriate in order to:
199
(i) Determine, for nonresidential parable replacement dwelling is made

(businesses, farm and nonprofit organi- available as set forth in § 24.204(a).
zations) displacements, the relocation (B) As soon as feasible, the Agency
needs and preferences of each business shall inform the person in writing of
(farm and nonprofit organization) to be the specific comparable replacement
displaced and explain the relocation dwelling and the price or rent used for
payments and other assistance for establishing the upper limit of the re-
which the business may be eligible, the placement housing payment (see § 24.403
related eligibility requirements, and (a) and (b)) and the basis for the deter-
the procedures for obtaining such as- mination, so that the person is aware
sistance. This shall include a personal of the maximum replacement housing
interview with each business. At a min- payment for which he or she may qual-
imum, interviews with displaced busi- ify.
ness owners and operators should in- (C) Where feasible, housing shall be
clude the following items: inspected prior to being made available
(A) The business’s replacement site to assure that it meets applicable
requirements, current lease terms and standards. (See § 24.2(a)(8).) If such an
other contractual obligations and the inspection is not made, the Agency
financial capacity of the business to shall notify the person to be displaced
accomplish the move. that a replacement housing payment
(B) Determination of the need for may not be made unless the replace-
outside specialists in accordance with ment dwelling is subsequently in-
§ 24.301(g)(12) that will be required to spected and determined to be decent,
assist in planning the move, assistance safe, and sanitary.
in the actual move, and in the re- (D) Whenever possible, minority per-
installation of machinery and/or other sons shall be given reasonable opportu-
personal property. nities to relocate to decent, safe, and
sanitary replacement dwellings, not lo-
(C) For businesses, an identification
cated in an area of minority concentra-
and resolution of personalty/realty
tion, that are within their financial
issues. Every effort must be made to
means. This policy, however, does not
identify and resolve realty/personalty
require an Agency to provide a person
issues prior to, or at the time of, the
a larger payment than is necessary to
appraisal of the property.
enable a person to relocate to a com-
(D) An estimate of the time required parable replacement dwelling. (See ap-
for the business to vacate the site. pendix A, § 24.205(c)(2)(ii)(D).)
(E) An estimate of the anticipated (E) The Agency shall offer all persons
difficulty in locating a replacement transportation to inspect housing to
property. which they are referred.
(F) An identification of any advance (F) Any displaced person that may be
relocation payments required for the eligible for government housing assist-
move, and the Agency’s legal capacity ance at the replacement dwelling shall
to provide them. be advised of any requirements of such
(ii) Determine, for residential dis- government housing assistance pro-
placements, the relocation needs and gram that would limit the size of the
preferences of each person to be dis- replacement dwelling (see
placed and explain the relocation pay- § 24.2(a)(6)(ix)), as well as of the long
ments and other assistance for which term nature of such rent subsidy, and
the person may be eligible, the related the limited (42 month) duration of the
eligibility requirements, and the proce- relocation rental assistance payment.
dures for obtaining such assistance. (iii) Provide, for nonresidential
This shall include a personal interview moves, current and continuing infor-
with each residential displaced person. mation on the availability, purchase
(A) Provide current and continuing prices, and rental costs of suitable
information on the availability, pur- commercial and farm properties and lo-
chase prices, and rental costs of com- cations. Assist any person displaced
parable replacement dwellings, and ex- from a business or farm operation to
plain that the person cannot be re- obtain and become established in a
quired to move unless at least one com- suitable replacement location.
200
(iv) Minimize hardships to persons in date of displacement is the date the

adjusting to relocation by providing person moves, or if later, the date a
counseling, advice as to other sources comparable replacement dwelling is
of assistance that may be available, made available. This section applies
and such other help as may be appro- only to persons who would otherwise
priate. have been displaced by the project. (See
(v) Supply persons to be displaced appendix A, § 24.206.)
with appropriate information con-
cerning Federal and State housing pro- § 24.207 General requirements—claims
grams, disaster loan and other pro- for relocation payments.
grams administered by the Small Busi- (a) Documentation. Any claim for a re-
ness Administration, and other Federal location payment shall be supported by
and State programs offering assistance such documentation as may be reason-
to displaced persons, and technical help ably required to support expenses in-
to persons applying for such assistance. curred, such as bills, certified prices,
(d) Coordination of relocation activities. appraisals, or other evidence of such
Relocation activities shall be coordi- expenses. A displaced person must be
nated with project work and other dis- provided reasonable assistance nec-
placement-causing activities to ensure essary to complete and file any re-
that, to the extent feasible, persons quired claim for payment.
displaced receive consistent treatment
(b) Expeditious payments. The Agency
and the duplication of functions is
shall review claims in an expeditious
minimized. (See § 24.6.)
manner. The claimant shall be prompt-
(e) Any person who occupies property
ly notified as to any additional docu-
acquired by an Agency, when such oc-
mentation that is required to support
cupancy began subsequent to the ac-
the claim. Payment for a claim shall
quisition of the property, and the occu-
be made as soon as feasible following
pancy is permitted by a short term
receipt of sufficient documentation to
rental agreement or an agreement sub-
support the claim.
ject to termination when the property
is needed for a program or project, (c) Advanced payments. If a person
shall be eligible for advisory services, demonstrates the need for an advanced
as determined by the Agency. relocation payment in order to avoid or
reduce a hardship, the Agency shall
§ 24.206 Eviction for cause. issue the payment, subject to such
safeguards as are appropriate to ensure
(a) Eviction for cause must conform
that the objective of the payment is ac-
to applicable State and local law. Any
complished.
person who occupies the real property
and is not in unlawful occupancy on (d) Time for filing. (1) All claims for a
the date of the initiation of negotia- relocation payment shall be filed with
tions, is presumed to be entitled to re- the Agency no later than 18 months
location payments and other assistance after:
set forth in this part unless the Agency (i) For tenants, the date of displace-
determines that: ment.
(1) The person received an eviction (ii) For owners, the date of displace-
notice prior to the initiation of nego- ment or the date of the final payment
tiations and, as a result of that notice for the acquisition of the real property,
is later evicted; or whichever is later.
(2) The person is evicted after the ini- (2) The Agency shall waive this time
tiation of negotiations for serious or period for good cause.
repeated violation of material terms of (e) Notice of denial of claim. If the
the lease or occupancy agreement; and Agency disapproves all or part of a
(3) In either case the eviction was not payment claimed or refuses to consider
undertaken for the purpose of evading the claim on its merits because of un-
the obligation to make available the timely filing or other grounds, it shall
payments and other assistance set promptly notify the claimant in writ-
forth in this part. ing of its determination, the basis for
(b) For purposes of determining eligi- its determination, and the procedures
bility for relocation payments, the for appealing that determination.
201
(f) No waiver of relocation assistance. A rameters, that of the displacing Agen-

displacing Agency shall not propose or cy.
request that a displaced person waive (c) In computing relocation pay-
his or her rights or entitlements to re- ments under the Uniform Act, if any
location assistance and benefits pro- member(s) of a household or owner(s)
vided by the Uniform Act and this reg- of an unincorporated business, farm, or
ulation. nonprofit organization is (are) deter-
(g) Expenditure of payments. Pay- mined to be ineligible because of a fail-
ments, provided pursuant to this part, ure to be legally present in the United
shall not be considered to constitute States, no relocation payments may be
Federal financial assistance. Accord- made to him or her. Any payment(s)
ingly, this part does not apply to the for which such household, unincor-
expenditure of such payments by, or porated business, farm, or nonprofit or-
for, a displaced person. ganization would otherwise be eligible
shall be computed for the household,
§ 24.208 Aliens not lawfully present in based on the number of eligible house-
the United States. hold members and for the unincor-
(a) Each person seeking relocation porated business, farm, or nonprofit or-
payments or relocation advisory assist- ganization, based on the ratio of own-
ance shall, as a condition of eligibility, ership between eligible and ineligible
certify: owners.
(1) In the case of an individual, that (d) The displacing Agency shall con-
he or she is either a citizen or national sider the certification provided pursu-
of the United States, or an alien who is ant to paragraph (a) of this section to
lawfully present in the United States. be valid, unless the displacing Agency
(2) In the case of a family, that each determines in accordance with para-
family member is either a citizen or graph (f) of this section that it is in-
national of the United States, or an valid based on a review of an alien’s
alien who is lawfully present in the documentation or other information
United States. The certification may that the Agency considers reliable and
be made by the head of the household appropriate.
on behalf of other family members. (e) Any review by the displacing
(3) In the case of an unincorporated Agency of the certifications provided
business, farm, or nonprofit organiza- pursuant to paragraph (a) of this sec-
tion, that each owner is either a citizen tion shall be conducted in a non-
or national of the United States, or an discriminatory fashion. Each dis-
alien who is lawfully present in the placing Agency will apply the same
United States. The certification may standard of review to all such certifi-
be made by the principal owner, man- cations it receives, except that such
ager, or operating officer on behalf of standard may be revised periodically.
other persons with an ownership inter- (f) If, based on a review of an alien’s
est. documentation or other credible evi-
(4) In the case of an incorporated dence, a displacing Agency has reason
business, farm, or nonprofit organiza- to believe that a person’s certification
tion, that the corporation is authorized is invalid (for example a document re-
to conduct business within the United viewed does not on its face reasonably
States. appear to be genuine), and that, as a
(b) The certification provided pursu- result, such person may be an alien not
ant to paragraphs (a)(1), (a)(2), and lawfully present in the United States,
(a)(3) of this section shall indicate it shall obtain the following informa-
whether such person is either a citizen tion before making a final determina-
or national of the United States, or an tion:
alien who is lawfully present in the (1) If the Agency has reason to be-
United States. Requirements con- lieve that the certification of a person
cerning the certification in addition to who has certified that he or she is an
those contained in this rule shall be alien lawfully present in the United
within the discretion of the Federal States is invalid, the displacing Agency
funding Agency and, within those pa- shall obtain verification of the alien’s
202
status from the local Bureau of Citi- (i) The certification referred to in
zenship and Immigration Service paragraph (a) of this section may be in-
(BCIS) Office. A list of local BCIS of- cluded as part of the claim for reloca-
fices is available at http:// tion payments described in § 24.207 of
www.uscis.gov/graphics/fieldoffices/ this part.
alphaa.htm. Any request for BCIS (Approved by the Office of Management and
verification shall include the alien’s Budget under control number 2105–0508)
full name, date of birth and alien num-
ber, and a copy of the alien’s docu- § 24.209 Relocation payments not con-
mentation. (If an Agency is unable to sidered as income.
contact the BCIS, it may contact the No relocation payment received by a
FHWA in Washington, DC, Office of displaced person under this part shall
Real Estate Services or Office of Chief be considered as income for the purpose
Counsel for a referral to the BCIS.) of the Internal Revenue Code of 1954,
(2) If the Agency has reason to be- which has been redesignated as the In-
lieve that the certification of a person ternal Revenue Code of 1986 (Title 26,
who has certified that he or she is a U.S. Code), or for the purpose of deter-
citizen or national is invalid, the dis- mining the eligibility or the extent of
placing Agency shall request evidence eligibility of any person for assistance
of United States citizenship or nation- under the Social Security Act (42 U.S.
ality from such person and, if consid- Code 301 et seq.) or any other Federal
ered necessary, verify the accuracy of law, except for any Federal law pro-
such evidence with the issuer. viding low-income housing assistance.
(g) No relocation payments or reloca-
tion advisory assistance shall be pro- Subpart D—Payments for Moving
vided to a person who has not provided and Related Expenses
the certification described in this sec-
tion or who has been determined to be § 24.301 Payment for actual reasonable
not lawfully present in the United moving and related expenses.
States, unless such person can dem- (a) General. (1) Any owner-occupant
onstrate to the displacing Agency’s or tenant who qualifies as a displaced
satisfaction that the denial of reloca- person (defined at § 24.2(a)(9)) and who
tion assistance will result in an excep- moves from a dwelling (including a mo-
tional and extremely unusual hardship bile home) or who moves from a busi-
to such person’s spouse, parent, or ness, farm or nonprofit organization is
child who is a citizen of the United entitled to payment of his or her ac-
States, or is an alien lawfully admitted tual moving and related expenses, as
for permanent residence in the United the Agency determines to be reason-
States. able and necessary.
(h) For purposes of paragraph (g) of (2) A non-occupant owner of a rented
this section, ‘‘exceptional and ex- mobile home is eligible for actual cost
tremely unusual hardship’’ to such reimbursement under § 24.301 to relo-
spouse, parent, or child of the person cate the mobile home. If the mobile
not lawfully present in the United home is not acquired as real estate, but
States means that the denial of reloca- the homeowner-occupant obtains a re-
tion payments and advisory assistance placement housing payment under one
to such person will directly result in: of the circumstances described at
(1) A significant and demonstrable § 24.502(a)(3), the home-owner occupant
adverse impact on the health or safety is not eligible for payment for moving
of such spouse, parent, or child; the mobile home, but may be eligible
(2) A significant and demonstrable for a payment for moving personal
adverse impact on the continued exist- property from the mobile home.
ence of the family unit of which such (b) Moves from a dwelling. A displaced
spouse, parent, or child is a member; or person’s actual, reasonable and nec-
(3) Any other impact that the dis- essary moving expenses for moving per-
placing Agency determines will have a sonal property from a dwelling may be
significant and demonstrable adverse determined based on the cost of one, or
impact on such spouse, parent, or a combination of the following meth-

child. ods: (Eligible expenses for moves from
203
a dwelling include the expenses de- (d) Moves from a business, farm or non-
scribed in paragraphs (g)(1) through profit organization. Personal property as
(g)(7) of this section. Self-moves based determined by an inventory from a
on the lower of two bids or estimates business, farm or nonprofit organiza-
are not eligible for reimbursement tion may be moved by one or a com-
under this section.) bination of the following methods: (Eli-
(1) Commercial move—moves per- gible expenses for moves from a busi-
formed by a professional mover. ness, farm or nonprofit organization in-
(2) Self-move—moves that may be per- clude those expenses described in para-
formed by the displaced person in one graphs (g)(1) through (g)(7) of this sec-
or a combination of the following tion and paragraphs (g)(11) through
methods: (g)(18) of this section and § 24.303.)
(i) Fixed Residential Moving Cost (1) Commercial move. Based on the
Schedule. (Described in § 24.302.) lower of two bids or estimates prepared
(ii) Actual cost move. Supported by by a commercial mover. At the Agen-
receipted bills for labor and equipment. cy’s discretion, payment for a low cost
Hourly labor rates should not exceed or uncomplicated move may be based
the cost paid by a commercial mover. on a single bid or estimate.
Equipment rental fees should be based (2) Self-move. A self-move payment
on the actual cost of renting the equip- may be based on one or a combination
ment but not exceed the cost paid by a of the following:
commercial mover. (i) The lower of two bids or estimates
(c) Moves from a mobile home. A dis- prepared by a commercial mover or
placed person’s actual, reasonable and qualified Agency staff person. At the
necessary moving expenses for moving Agency’s discretion, payment for a low
personal property from a mobile home cost or uncomplicated move may be
may be determined based on the cost of based on a single bid or estimate; or
one, or a combination of the following (ii) Supported by receipted bills for
methods: (self-moves based on the labor and equipment. Hourly labor
lower of two bids or estimates are not rates should not exceed the rates paid
eligible for reimbursement under this by a commercial mover to employees
section. Eligible expenses for moves performing the same activity and,
from a mobile home include those ex- equipment rental fees should be based
penses described in paragraphs (g)(1) on the actual rental cost of the equip-
through (g)(7) of this section. In addi- ment but not to exceed the cost paid by
tion to the items in paragraph (a) of a commercial mover.
this section, the owner-occupant of a (e) Personal property only. Eligible ex-
mobile home that is moved as personal penses for a person who is required to
property and used as the person’s remove personal property from real prop-
placement dwelling, is also eligible for erty but is not required to move from
the moving expenses described in para- a dwelling (including a mobile home),
graphs (g)(8) through (g)(10) of this sec- business, farm or nonprofit organiza-
tion.) tion include those expenses described
(1) Commercial move—moves per- in paragraphs (g)(1) through (g)(7) and
formed by a professional mover. (g)(18) of this section. (See appendix A,
(2) Self-move—moves that may be per- § 24.301(e).)
formed by the displaced person in one (f) Advertising signs. The amount of a
or a combination of the following payment for direct loss of an adver-
methods: tising sign, which is personal property
(i) Fixed Residential Moving Cost shall be the lesser of:
Schedule. (Described in § 24.302.) (1) The depreciated reproduction cost
(ii) Actual cost move. Supported by of the sign, as determined by the Agen-
receipted bills for labor and equipment. cy, less the proceeds from its sale; or
Hourly labor rates should not exceed (2) The estimated cost of moving the
the cost paid by a commercial mover. sign, but with no allowance for storage.
Equipment rental fees should be based (g) Eligible actual moving expenses. (1)
on the actual cost of renting the equip- Transportation of the displaced person
ment but not exceed the cost paid by a and personal property. Transportation
commercial mover. costs for a distance beyond 50 miles are
204
not eligible, unless the Agency deter- payment of the fee is necessary to ef-
mines that relocation beyond 50 miles fect relocation.
is justified. (11) Any license, permit, fees or cer-
(2) Packing, crating, unpacking, and tification required of the displaced per-
uncrating of the personal property. son at the replacement location. How-
(3) Disconnecting, dismantling, re- ever, the payment may be based on the
moving, reassembling, and reinstalling remaining useful life of the existing li-
relocated household appliances and cense, permit, fees or certification.
other personal property. For busi- (12) Professional services as the
nesses, farms or nonprofit organiza- Agency determines to be actual, rea-
tions this includes machinery, equip- sonable and necessary for:
ment, substitute personal property, (i) Planning the move of the personal
and connections to utilities available property;
within the building; it also includes (ii) Moving the personal property;
modifications to the personal property, and
including those mandated by Federal, (iii) Installing the relocated personal
State or local law, code or ordinance, property at the replacement location.
necessary to adapt it to the replace-
(13) Relettering signs and replacing
ment structure, the replacement site,
stationery on hand at the time of dis-
or the utilities at the replacement site,
placement that are made obsolete as a
and modifications necessary to adapt
result of the move.
the utilities at the replacement site to
the personal property. (14) Actual direct loss of tangible per-
sonal property incurred as a result of
(4) Storage of the personal property
moving or discontinuing the business
for a period not to exceed 12 months,
or farm operation. The payment shall
unless the Agency determines that a
longer period is necessary. consist of the lesser of:
(5) Insurance for the replacement (i) The fair market value in place of
value of the property in connection the item, as is for continued use, less
with the move and necessary storage. the proceeds from its sale. (To be eligi-
ble for payment, the claimant must
(6) The replacement value of property
lost, stolen, or damaged in the process make a good faith effort to sell the per-
of moving (not through the fault or sonal property, unless the Agency de-
negligence of the displaced person, his termines that such effort is not nec-
or her agent, or employee) where insur- essary. When payment for property loss
ance covering such loss, theft, or dam- is claimed for goods held for sale, the
age is not reasonably available. fair market value shall be based on the
(7) Other moving-related expenses cost of the goods to the business, not
that are not listed as ineligible under the potential selling prices.); or
§ 24.301(h), as the Agency determines to (ii) The estimated cost of moving the
be reasonable and necessary. item as is, but not including any allow-
(8) The reasonable cost of disassem- ance for storage; or for reconnecting a
bling, moving, and reassembling any piece of equipment if the equipment is
appurtenances attached to a mobile in storage or not being used at the ac-
home, such as porches, decks, skirting, quired site. (See appendix A,
and awnings, which were not acquired, § 24.301(g)(14)(i) and (ii).) If the business
anchoring of the unit, and utility or farm operation is discontinued, the
‘‘hookup’’ charges. estimated cost of moving the item
(9) The reasonable cost of repairs and/ shall be based on a moving distance of
or modifications so that a mobile home 50 miles.
can be moved and/or made decent, safe, (15) The reasonable cost incurred in
and sanitary. attempting to sell an item that is not
(10) The cost of a nonrefundable mo- to be relocated.
bile home park entrance fee, to the ex- (16) Purchase of substitute personal
tent it does not exceed the fee at a property. If an item of personal prop-
comparable mobile home park, if the erty, which is used as part of a business
person is displaced from a mobile home or farm operation is not moved but is
park or the Agency determines that promptly replaced with a substitute
205
item that performs a comparable func- ownership. (However, this part does not
tion at the replacement site, the dis- preclude the computation under
placed person is entitled to payment of § 24.401(c)(2)(iii));
the lesser of: (2) Interest on a loan to cover moving
(i) The cost of the substitute item, expenses;
including installation costs of the re- (3) Loss of goodwill;
placement site, minus any proceeds (4) Loss of profits;
from the sale or trade-in of the re- (5) Loss of trained employees;
placed item; or (6) Any additional operating expenses
(ii) The estimated cost of moving and of a business or farm operation in-
reinstalling the replaced item but with curred because of operating in a new
no allowance for storage. At the Agen- location except as provided in
cy’s discretion, the estimated cost for a § 24.304(a)(6);
low cost or uncomplicated move may (7) Personal injury;
be based on a single bid or estimate.
(8) Any legal fee or other cost for pre-
(17) Searching for a replacement lo-
paring a claim for a relocation pay-
cation. A business or farm operation is
ment or for representing the claimant
entitled to reimbursement for actual
before the Agency;
expenses, not to exceed $2,500, as the
(9) Expenses for searching for a re-
Agency determines to be reasonable,
placement dwelling;
which are incurred in searching for a
replacement location, including: (10) Physical changes to the real
(i) Transportation; property at the replacement location of
(ii) Meals and lodging away from a business or farm operation except as
home; provided in §§ 24.301(g)(3) and 24.304(a);
(iii) Time spent searching, based on (11) Costs for storage of personal
reasonable salary or earnings; property on real property already
(iv) Fees paid to a real estate agent owned or leased by the displaced per-
or broker to locate a replacement site, son, and
exclusive of any fees or commissions (12) Refundable security and utility
related to the purchase of such sites; deposits.
(v) Time spent in obtaining permits (i) Notification and inspection (nonresi-
and attending zoning hearings; and dential). The Agency shall inform the
(vi) Time spent negotiating the pur- displaced person, in writing, of the re-
chase of a replacement site based on a quirements of this section as soon as
reasonable salary or earnings. possible after the initiation of negotia-
(18) Low value/high bulk. When the tions. This information may be in-
personal property to be moved is of low cluded in the relocation information
value and high bulk, and the cost of provided the displaced person as set
moving the property would be dis- forth in § 24.203. To be eligible for pay-
proportionate to its value in the judgments under this section the displaced
ment of the displacing Agency, the al- person must:
lowable moving cost payment shall not (1) Provide the Agency reasonable ad-
exceed the lesser of: The amount which vance notice of the approximate date
would be received if the property were of the start of the move or disposition
sold at the site or the replacement cost of the personal property and an inven-
of a comparable quantity delivered to tory of the items to be moved. How-
the new business location. Examples of ever, the Agency may waive this notice
personal property covered by this pro- requirement after documenting its file
vision include, but are not limited to, accordingly.
stockpiled sand, gravel, minerals, met- (2) Permit the Agency to make rea-
als and other similar items of personal sonable and timely inspections of the
property as determined by the Agency. personal property at both the displace-
(h) Ineligible moving and related ex- ment and replacement sites and to
penses. A displaced person is not enti- monitor the move.
tled to payment for: (j) Transfer of ownership (nonresiden-
(1) The cost of moving any structure tial). Upon request and in accordance
or other real property improvement in with applicable law, the claimant shall
which the displaced person reserved transfer to the Agency ownership of
206
any personal property that has not usage, as determined necessary by the
been moved, sold, or traded in. Agency.
[70 FR 611, Jan. 4, 2005, as amended at 70 FR § 24.304 Reestablishment expenses—
22611, May 2, 2005] nonresidential moves.
§ 24.302 Fixed payment for moving ex- In addition to the payments available
penses—residential moves. under §§ 24.301 and 24.303 of this sub-
Any person displaced from a dwelling part, a small business, as defined in
or a seasonal residence or a dormitory § 24.2(a)(24), farm or nonprofit organiza-
style room is entitled to receive a fixed tion is entitled to receive a payment,
moving cost payment as an alternative not to exceed $10,000, for expenses actu-
to a payment for actual moving and really incurred in relocating and reestab-
lated expenses under § 24.301. This pay- lishing such small business, farm or
ment shall be determined according to nonprofit organization at a replace-
the Fixed Residential Moving Cost ment site.
Schedule 3 approved by the Federal (a) Eligible expenses. Reestablishment
Highway Administration and published expenses must be reasonable and nec-
in the FEDERAL REGISTER on a periodic essary, as determined by the Agency.
basis. The payment to a person with They include, but are not limited to,
minimal personal possessions who is in the following:
occupancy of a dormitory style room (1) Repairs or improvements to the
or a person whose residential move is replacement real property as required
performed by an Agency at no cost to by Federal, State or local law, code or
the person shall be limited to the ordinance.
amount stated in the most recent edi- (2) Modifications to the replacement
tion of the Fixed Residential Moving property to accommodate the business
Cost Schedule. operation or make replacement struc-
tures suitable for conducting the busi-
§ 24.303 Related nonresidential eligible ness.
expenses.
(3) Construction and installation
The following expenses, in addition costs for exterior signing to advertise
to those provided by § 24.301 for moving the business.
personal property, shall be provided if (4) Redecoration or replacement of
the Agency determines that they are soiled or worn surfaces at the replace-
actual, reasonable and necessary: ment site, such as paint, paneling, or
(a) Connection to available nearby carpeting.
utilities from the right-of-way to im- (5) Advertisement of replacement lo-
provements at the replacement site. cation.
(b) Professional services performed (6) Estimated increased costs of oper-
prior to the purchase or lease of a re- ation during the first 2 years at the re-
placement site to determine its suit- placement site for such items as:
ability for the displaced person’s busi- (i) Lease or rental charges;
ness operation including but not lim- (ii) Personal or real property taxes;
ited to, soil testing, feasibility and
(iii) Insurance premiums; and
marketing studies (excluding any fees
or commissions directly related to the (iv) Utility charges, excluding impact
purchase or lease of such site). At the fees.
discretion of the Agency a reasonable (7) Other items that the Agency con-
pre-approved hourly rate may be estab- siders essential to the reestablishment
lished. (See appendix A, § 24.303(b).) of the business.
(c) Impact fees or one time assess- (b) Ineligible expenses. The following
ments for anticipated heavy utility is a nonexclusive listing of reestablish-
ment expenditures not considered to be
3 The
reasonable, necessary, or otherwise eli-
Fixed Residential Moving Cost
Schedule is available at the following URL:
gible:
(1) Purchase of capital assets, such
http://www.fhwa.dot.gov//////realestate/
fixsch96.htm. Agencies are cautioned to en- as, office furniture, filing cabinets, ma-
sure they are using the most recent edition. chinery, or trade fixtures.
207
(2) Purchase of manufacturing mate- (6) The business contributed materi-

rials, production supplies, product in- ally to the income of the displaced per-
ventory, or other items used in the son during the 2 taxable years prior to
normal course of the business oper- displacement. (See § 24.2(a)(7).)
ation. (b) Determining the number of busi-
(3) Interest on money borrowed to nesses. In determining whether two or
make the move or purchase the re- more displaced legal entities con-
placement property. stitute a single business, which is enti-
(4) Payment to a part-time business tled to only one fixed payment, all per-
in the home which does not contribute tinent factors shall be considered, in-
materially (defined at § 24.2(a)(7)) to cluding the extent to which:
the household income. (1) The same premises and equipment
are shared;
§ 24.305 Fixed payment for moving ex- (2) Substantially identical or inter-
penses—nonresidential moves. related business functions are carried
out and business and financial affairs
(a) Business. A displaced business
are commingled;
may be eligible to choose a fixed pay-
(3) The entities are held out to the
ment in lieu of the payments for actual
public, and to those customarily deal-
moving and related expenses, and ac-
ing with them, as one business; and
tual reasonable reestablishment ex-
(4) The same person or closely related
penses provided by §§ 24.301, 24.303 and
persons own, control, or manage the af-
24.304. Such fixed payment, except for
fairs of the entities.
payment to a nonprofit organization,
(c) Farm operation. A displaced farm
shall equal the average annual net
operation (defined at § 24.2(a)(12)) may
earnings of the business, as computed
choose a fixed payment, in lieu of the
in accordance with paragraph (e) of
payments for actual moving and re-
this section, but not less than $1,000
lated expenses and actual reasonable
nor more than $20,000. The displaced
reestablishment expenses, in an
business is eligible for the payment if
amount equal to its average annual net
the Agency determines that:
earnings as computed in accordance
(1) The business owns or rents per- with paragraph (e) of this section, but
sonal property which must be moved in not less than $1,000 nor more than
connection with such displacement and $20,000. In the case of a partial acquisi-
for which an expense would be incurred tion of land, which was a farm oper-
in such move and, the business vacates ation before the acquisition, the fixed
or relocates from its displacement site; payment shall be made only if the
(2) The business cannot be relocated Agency determines that:
without a substantial loss of its exist- (1) The acquisition of part of the land
ing patronage (clientele or net earn- caused the operator to be displaced
ings). A business is assumed to meet from the farm operation on the remain-
this test unless the Agency determines ing land; or
that it will not suffer a substantial loss (2) The partial acquisition caused a
of its existing patronage; substantial change in the nature of the
(3) The business is not part of a com- farm operation.
mercial enterprise having more than (d) Nonprofit organization. A displaced
three other entities which are not nonprofit organization may choose a
being acquired by the Agency, and fixed payment of $1,000 to $20,000, in
which are under the same ownership lieu of the payments for actual moving
and engaged in the same or similar and related expenses and actual reason-
business activities. able reestablishment expenses, if the
(4) The business is not operated at a Agency determines that it cannot be
displacement dwelling solely for the relocated without a substantial loss of
purpose of renting such dwelling to existing patronage (membership or cli-
others; entele). A nonprofit organization is as-
(5) The business is not operated at sumed to meet this test, unless the
the displacement site solely for the Agency demonstrates otherwise. Any
purpose of renting the site to others; payment in excess of $1,000 must be

and supported with financial statements
208
for the two 12-month periods prior to (3) Relocation of the utility facility
the acquisition. The amount to be used is required by and is incidental to the
for the payment is the average of 2 primary purpose of the project or pro-
years annual gross revenues less ad- gram undertaken by the displacing
ministrative expenses. (See appendix Agency;
A, § 24.305(d).) (4) There is no Federal law, other
(e) Average annual net earnings of a than the Uniform Act, which clearly
business or farm operation. The average establishes a policy for the payment of
annual net earnings of a business or utility moving costs that is applicable
farm operation are one-half of its net to the displacing Agency’s program or
earnings before Federal, State, and project; and
local income taxes during the 2 taxable (5) State or local government reim-
years immediately prior to the taxable bursement for utility moving costs or
year in which it was displaced. If the payment of such costs by the dis-
business or farm was not in operation placing Agency is in accordance with
for the full 2 taxable years prior to dis- State law.
placement, net earnings shall be based (b) For the purposes of this section,
on the actual period of operation at the the term extraordinary expenses means
displacement site during the 2 taxable those expenses which, in the opinion of
years prior to displacement, projected the displacing Agency, are not routine
to an annual rate. Average annual net or predictable expenses relating to the
earnings may be based upon a different utility’s occupancy of rights-of-way,
period of time when the Agency deter- and are not ordinarily budgeted as op-
mines it to be more equitable. Net erating expenses, unless the owner of
earnings include any compensation ob- the utility facility has explicitly and
tained from the business or farm oper- knowingly agreed to bear such ex-
ation by its owner, the owner’s spouse, penses as a condition for use of the
and dependents. The displaced person property, or has voluntarily agreed to
shall furnish the Agency proof of net be responsible for such expenses.
earnings through income tax returns, (c) A relocation payment to a utility
certified financial statements, or other facility owner for moving costs under
reasonable evidence, which the Agency this section may not exceed the cost to
determines is satisfactory. (See appen- functionally restore the service dis-
dix A, § 24.305(e).) rupted by the federally-assisted pro-
§ 24.306 Discretionary utility reloca- gram or project, less any increase in
tion payments. value of the new facility and salvage
value of the old facility. The displacing
(a) Whenever a program or project Agency and the utility facility owner
undertaken by a displacing Agency shall reach prior agreement on the na-
causes the relocation of a utility facil- ture of the utility relocation work to
ity (see § 24.2(a)(31)) and the relocation be accomplished, the eligibility of the
of the facility creates extraordinary work for reimbursement, the respon-
expenses for its owner, the displacing sibilities for financing and accom-
Agency may, at its option, make a re- plishing the work, and the method of
location payment to the owner for all accumulating costs and making pay-
or part of such expenses, if the fol- ment. (See appendix A, § 24.306.)
lowing criteria are met:
(1) The utility facility legally occu-
pies State or local government prop- Subpart E—Replacement Housing
erty, or property over which the State Payments
or local government has an easement
or right-of-way; § 24.401 Replacement housing payment
for 180-day homeowner-occupants.
(2) The utility facility’s right of oc-
cupancy thereon is pursuant to State (a) Eligibility. A displaced person is el-
law or local ordinance specifically au- igible for the replacement housing pay-
thorizing such use, or where such use ment for a 180-day homeowner-occu-
and occupancy has been granted pant if the person:
through a franchise, use and occupancy (1) Has actually owned and occupied
permit, or other similar agreement; the displacement dwelling for not less
209
than 180 days immediately prior to the ing actually purchased and occupied by
initiation of negotiations; and the displaced person.
(2) Purchases and occupies a decent, (2) Owner retention of displacement
safe, and sanitary replacement dwell- dwelling. If the owner retains owner-
ing within one year after the later of ship of his or her dwelling, moves it
the following dates (except that the from the displacement site, and reoccu-
Agency may extend such one year pe- pies it on a replacement site, the pur-
riod for good cause): chase price of the replacement dwelling
(i) The date the displaced person re- shall be the sum of:
ceives final payment for the displace- (i) The cost of moving and restoring
ment dwelling or, in the case of con- the dwelling to a condition comparable
demnation, the date the full amount of to that prior to the move;
the estimate of just compensation is (ii) The cost of making the unit a de-
deposited in the court; or cent, safe, and sanitary replacement
(ii) The date the displacing Agency’s dwelling (defined at § 24.2(a)(8)); and
obligation under § 24.204 is met. (iii) The current fair market value
(b) Amount of payment. The replace- for residential use of the replacement
ment housing payment for an eligible dwelling site (see appendix A,
180-day homeowner-occupant may not § 24.401(c)(2)(iii)), unless the claimant
exceed $22,500. (See also § 24.404.) The rented the displacement site and there
payment under this subpart is limited is a reasonable opportunity for the
to the amount necessary to relocate to claimant to rent a suitable replace-
a comparable replacement dwelling ment site; and
within one year from the date the dis- (iv) The retention value of the dwell-
placed homeowner-occupant is paid for ing, if such retention value is reflected
the displacement dwelling, or the date in the ‘‘acquisition cost’’ used when
a comparable replacement dwelling is computing the replacement housing
made available to such person, which- payment.
ever is later. The payment shall be the (d) Increased mortgage interest costs.
sum of: The displacing Agency shall determine
(1) The amount by which the cost of the factors to be used in computing the
a replacement dwelling exceeds the ac- amount to be paid to a displaced person
quisition cost of the displacement under paragraph (b)(2) of this section.
dwelling, as determined in accordance The payment for increased mortgage
with paragraph (c) of this section; interest cost shall be the amount
(2) The increased interest costs and which will reduce the mortgage bal-
other debt service costs which are in- ance on a new mortgage to an amount
curred in connection with the mort- which could be amortized with the
gage(s) on the replacement dwelling, as same monthly payment for principal
determined in accordance with para- and interest as that for the mort-
graph (d) of this section; and gage(s) on the displacement dwelling.
(3) The reasonable expenses inci- In addition, payments shall include
dental to the purchase of the replace- other debt service costs, if not paid as
ment dwelling, as determined in ac- incidental costs, and shall be based
cordance with paragraph (e) of this sec- only on bona fide mortgages that were
tion. valid liens on the displacement dwell-
(c) Price differential—(1) Basic coming for at least 180 days prior to the
putation. The price differential to be initiation of negotiations. Paragraphs
paid under paragraph (b)(1) of this sec- (d)(1) through (d)(5) of this section
tion is the amount which must be shall apply to the computation of the
added to the acquisition cost of the dis- increased mortgage interest costs pay-
placement dwelling and site (see ment, which payment shall be contin-
§ 24.2(a)(11)) to provide a total amount gent upon a mortgage being placed on
equal to the lesser of: the replacement dwelling.
(i) The reasonable cost of a com- (1) The payment shall be based on the
parable replacement dwelling as deter- unpaid mortgage balance(s) on the dis-
mined in accordance with § 24.403(a); or placement dwelling; however, in the
(ii) The purchase price of the decent, event the displaced person obtains a
safe, and sanitary replacement dwell- smaller mortgage than the mortgage
210
balance(s) computed in the buydown fees, preparing surveys and plats, and
determination, the payment will be recording fees.
prorated and reduced accordingly. (See (2) Lender, FHA, or VA application
appendix A, § 24.401(d).) In the case of a and appraisal fees.
home equity loan the unpaid balance (3) Loan origination or assumption
shall be that balance which existed 180 fees that do not represent prepaid in-
days prior to the initiation of negotia- terest.
tions or the balance on the date of ac- (4) Professional home inspection, cer-
quisition, whichever is less. tification of structural soundness, and
(2) The payment shall be based on the termite inspection.
remaining term of the mortgage(s) on
(5) Credit report.
the displacement dwelling or the term
of the new mortgage, whichever is (6) Owner’s and mortgagee’s evidence
shorter. of title, e.g., title insurance, not to ex-
(3) The interest rate on the new ceed the costs for a comparable re-
mortgage used in determining the placement dwelling.
amount of the payment shall not ex- (7) Escrow agent’s fee.
ceed the prevailing fixed interest rate (8) State revenue or documentary
for conventional mortgages currently stamps, sales or transfer taxes (not to
charged by mortgage lending institu- exceed the costs for a comparable re-
tions in the area in which the replace- placement dwelling).
ment dwelling is located. (9) Such other costs as the Agency
(4) Purchaser’s points and loan origi- determine to be incidental to the pur-
nation or assumption fees, but not sell- chase.
er’s points, shall be paid to the extent: (f) Rental assistance payment for 180-
(i) They are not paid as incidental ex- day homeowner. A 180-day homeowner-
penses; occupant, who could be eligible for a
(ii) They do not exceed rates normal replacement housing payment under
to similar real estate transactions in paragraph (a) of this section but elects
the area; to rent a replacement dwelling, is eligi-
(iii) The Agency determines them to ble for a rental assistance payment.
be necessary; and The amount of the rental assistance
(iv) The computation of such points payment is based on a determination of
and fees shall be based on the unpaid market rent for the acquired dwelling
mortgage balance on the displacement compared to a comparable rental
dwelling, less the amount determined dwelling available on the market. The
for the reduction of the mortgage bal- difference, if any, is computed in ac-
ance under this section. cordance with § 24.402(b)(1), except that
(5) The displaced person shall be ad- the limit of $5,250 does not apply, and
vised of the approximate amount of disbursed in accordance with
this payment and the conditions that § 24.402(b)(3). Under no circumstances
must be met to receive the payment as would the rental assistance payment
soon as the facts relative to the per- exceed the amount that could have
son’s current mortgage(s) are known been received under § 24.401(b)(1) had
and the payment shall be made avail- the 180-day homeowner elected to pur-
able at or near the time of closing on chase and occupy a comparable re-
the replacement dwelling in order to placement dwelling.
reduce the new mortgage as intended.
(e) Incidental expenses. The incidental [70 FR 611, Jan. 4, 2005, as amended at 70 FR
expenses to be paid under paragraph 22611, May 2, 2005]
(b)(3) of this section or § 24.402(c)(1) are
those necessary and reasonable costs § 24.402 Replacement housing payment
for 90-day occupants.
actually incurred by the displaced per-
son incident to the purchase of a re- (a) Eligibility. A tenant or owner-oc-
placement dwelling, and customarily cupant displaced from a dwelling is en-
paid by the buyer, including: titled to a payment not to exceed $5,250
(1) Legal, closing, and related costs, for rental assistance, as computed in
including those for title search, pre- accordance with paragraph (b) of this
paring conveyance instruments, notary section, or downpayment assistance, as
211
computed in accordance with para- (ii) Thirty (30) percent of the dis-
graph (c) of this section, if such displaced person’s average monthly gross
placed person: household income if the amount is
(1) Has actually and lawfully occu- classified as ‘‘low income’’ by the U.S.
pied the displacement dwelling for at Department of Housing and Urban De-
least 90 days immediately prior to the velopment’s Annual Survey of Income
initiation of negotiations; and Limits for the Public Housing and Sec-
(2) Has rented, or purchased, and oc- tion 8 Programs 4. The base monthly
cupied a decent, safe, and sanitary re- rental shall be established solely on
placement dwelling within 1 year (un- the criteria in paragraph (b)(2)(i) of
less the Agency extends this period for this section for persons with income
good cause) after: exceeding the survey’s ‘‘low income’’
(i) For a tenant, the date he or she limits, for persons refusing to provide
moves from the displacement dwelling; appropriate evidence of income, and for
or persons who are dependents. A full
(ii) For an owner-occupant, the later time student or resident of an institu-
of: tion may be assumed to be a depend-
(A) The date he or she receives final ent, unless the person demonstrates
payment for the displacement dwell- otherwise; or,
ing, or in the case of condemnation, (iii) The total of the amounts des-
the date the full amount of the esti- ignated for shelter and utilities if the
mate of just compensation is deposited displaced person is receiving a welfare
with the court; or assistance payment from a program
(B) The date he or she moves from that designates the amounts for shelter
the displacement dwelling. and utilities.
(b) Rental assistance payment—(1) (3) Manner of disbursement. A rental
Amount of payment. An eligible dis- assistance payment may, at the Agen-
placed person who rents a replacement cy’s discretion, be disbursed in either a
dwelling is entitled to a payment not lump sum or in installments. However,
to exceed $5,250 for rental assistance. except as limited by § 24.403(f), the full
(See § 24.404.) Such payment shall be 42 amount vests immediately, whether or
times the amount obtained by sub- not there is any later change in the
tracting the base monthly rental for person’s income or rent, or in the con-
the displacement dwelling from the dition or location of the person’s hous-
lesser of: ing.
(i) The monthly rent and estimated (c) Downpayment assistance payment—
average monthly cost of utilities for a (1) Amount of payment. An eligible dis-
placed person who purchases a replace-
comparable replacement dwelling; or
ment dwelling is entitled to a down-
(ii) The monthly rent and estimated
payment assistance payment in the
average monthly cost of utilities for
amount the person would receive under
the decent, safe, and sanitary replace-
paragraph (b) of this section if the per-
ment dwelling actually occupied by the
son rented a comparable replacement
displaced person.
dwelling. At the Agency’s discretion, a
(2) Base monthly rental for displace-
downpayment assistance payment that
ment dwelling. The base monthly rental
is less than $5,250 may be increased to
for the displacement dwelling is the
any amount not to exceed $5,250. How-
lesser of: ever, the payment to a displaced home-
(i) The average monthly cost for rent owner shall not exceed the amount the
and utilities at the displacement dwell- owner would receive under § 24.401(b) if
ing for a reasonable period prior to dis- he or she met the 180-day occupancy re-
placement, as determined by the Agen- quirement. If the Agency elects to pro-
cy (for an owner-occupant, use the fair vide the maximum payment of $5,250 as
market rent for the displacement
dwelling. For a tenant who paid little 4 The U.S. Department of Housing and
or no rent for the displacement dwell- Urban Development’s Public Housing and
ing, use the fair market rent, unless its Section 8 Program Income Limits are up-
use would result in a hardship because
dated annually and are available on FHWA’s

of the person’s income or other cir- Web site at http://www.fhwa.dot.gov/realestate/
cumstances); ua/ualic.htm.
212
a downpayment, the Agency shall similar neighborhoods where housing

apply this discretion in a uniform and costs are generally the same or higher.
consistent manner, so that eligible dis- (5) Multiple occupants of one dis-
placed persons in like circumstances placement dwelling. If two or more oc-
are treated equally. A displaced person cupants of the displacement dwelling
eligible to receive a payment as a 180- move to separate replacement dwell-
day owner-occupant under § 24.401(a) is ings, each occupant is entitled to a rea-
not eligible for this payment. (See ap- sonable prorated share, as determined
pendix A, § 24.402(c).) by the Agency, of any relocation pay-
(2) Application of payment. The full ments that would have been made if
amount of the replacement housing the occupants moved together to a
payment for downpayment assistance comparable replacement dwelling.
must be applied to the purchase price However, if the Agency determines
of the replacement dwelling and re- that two or more occupants main-
lated incidental expenses. tained separate households within the
same dwelling, such occupants have
§ 24.403 Additional rules governing re- separate entitlements to relocation
placement housing payments. payments.
(a) Determining cost of comparable re- (6) Deductions from relocation pay-
placement dwelling. The upper limit of a ments. An Agency shall deduct the
replacement housing payment shall be amount of any advance relocation pay-
ment from the relocation payment(s)
based on the cost of a comparable re-
to which a displaced person is other-
placement dwelling (defined at
wise entitled. The Agency shall not
§ 24.2(a)(6)).
withhold any part of a relocation pay-
(1) If available, at least three comment to a displaced person to satisfy
parable replacement dwellings shall be an obligation to any other creditor.
examined and the payment computed (7) Mixed-use and multifamily prop-
on the basis of the dwelling most near- erties. If the displacement dwelling
ly representative of, and equal to, or was part of a property that contained
better than, the displacement dwelling. another dwelling unit and/or space used
(2) If the site of the comparable re- for nonresidential purposes, and/or is
placement dwelling lacks a major exte- located on a lot larger than typical for
rior attribute of the displacement residential purposes, only that portion
dwelling site, (e.g., the site is signifi- of the acquisition payment which is ac-
cantly smaller or does not contain a tually attributable to the displacement
swimming pool), the value of such at- dwelling shall be considered the acqui-
tribute shall be subtracted from the ac- sition cost when computing the re-
quisition cost of the displacement placement housing payment.
dwelling for purposes of computing the (b) Inspection of replacement dwelling.
payment. Before making a replacement housing
(3) If the acquisition of a portion of a payment or releasing the initial pay-
typical residential property causes the ment from escrow, the Agency or its
displacement of the owner from the designated representative shall inspect
dwelling and the remainder is a the replacement dwelling and deter-
buildable residential lot, the Agency mine whether it is a decent, safe, and
may offer to purchase the entire prop- sanitary dwelling as defined at
erty. If the owner refuses to sell the re- § 24.2(a)(8).
mainder to the Agency, the fair market (c) Purchase of replacement dwelling. A
value of the remainder may be added to displaced person is considered to have
the acquisition cost of the displace- met the requirement to purchase a re-
ment dwelling for purposes of com- placement dwelling, if the person:
puting the replacement housing pay- (1) Purchases a dwelling;
ment. (2) Purchases and rehabilitates a sub-
(4) To the extent feasible, comparable standard dwelling;
replacement dwellings shall be selected (3) Relocates a dwelling which he or
from the neighborhood in which the she owns or purchases;
displacement dwelling was located or, (4) Constructs a dwelling on a site he

if that is not possible, in nearby or or she owns or purchases;
213
(5) Contracts for the purchase or con- ceased person shall be disbursed to the
struction of a dwelling on a site pro- estate.
vided by a builder or on a site the per- (g) Insurance proceeds. To the extent
son owns or purchases; or necessary to avoid duplicate compensa-
(6) Currently owns a previously pur- tion, the amount of any insurance pro-
chased dwelling and site, valuation of ceeds received by a person in connec-
which shall be on the basis of current tion with a loss to the displacement
fair market value. dwelling due to a catastrophic occur-
(d) Occupancy requirements for dis- rence (fire, flood, etc.) shall be included
placement or replacement dwelling. No in the acquisition cost of the displace-
person shall be denied eligibility for a ment dwelling when computing the
replacement housing payment solely price differential. (See § 24.3.)
because the person is unable to meet [70 FR 611, Jan. 4, 2005, as amended at 70 FR
the occupancy requirements set forth 22611, May 2, 2005]
in these regulations for a reason be-
yond his or her control, including: § 24.404 Replacement housing of last
resort.
(1) A disaster, an emergency, or an
imminent threat to the public health (a) Determination to provide replace-
or welfare, as determined by the Presi- ment housing of last resort. Whenever a
dent, the Federal Agency funding the program or project cannot proceed on a
project, or the displacing Agency; or timely basis because comparable re-
(2) Another reason, such as a delay in placement dwellings are not available
the construction of the replacement within the monetary limits for owners
dwelling, military duty, or hospital or tenants, as specified in § 24.401 or
stay, as determined by the Agency. § 24.402, as appropriate, the Agency
(e) Conversion of payment. A displaced shall provide additional or alternative
person who initially rents a replace- assistance under the provisions of this
ment dwelling and receives a rental as- subpart. Any decision to provide last
sistance payment under § 24.402(b) is el- resort housing assistance must be ade-
igible to receive a payment under quately justified either:
(1) On a case-by-case basis, for good
§ 24.401 or § 24.402(c) if he or she meets
cause, which means that appropriate
the eligibility criteria for such pay-
consideration has been given to:
ments, including purchase and occu-
(i) The availability of comparable re-
pancy within the prescribed 1-year pe-
placement housing in the program or
riod. Any portion of the rental assist-
project area;
ance payment that has been disbursed
(ii) The resources available to pro-
shall be deducted from the payment
vide comparable replacement housing;
computed under § 24.401 or § 24.402(c).
and
(f) Payment after death. A replace- (iii) The individual circumstances of
ment housing payment is personal to the displaced person, or
the displaced person and upon his or (2) By a determination that:
her death the undisbursed portion of (i) There is little, if any, comparable
any such payment shall not be paid to replacement housing available to dis-
the heirs or assigns, except that: placed persons within an entire pro-
(1) The amount attributable to the gram or project area; and, therefore,
displaced person’s period of actual oc- last resort housing assistance is nec-
cupancy of the replacement housing essary for the area as a whole;
shall be paid. (ii) A program or project cannot be
(2) Any remaining payment shall be advanced to completion in a timely
disbursed to the remaining family manner without last resort housing as-
members of the displaced household in sistance; and
any case in which a member of a dis- (iii) The method selected for pro-
placed family dies. viding last resort housing assistance is
(3) Any portion of a replacement cost effective, considering all elements,
housing payment necessary to satisfy which contribute to total program or
the legal obligation of an estate in con- project costs.
nection with the selection of a replace- (b) Basic rights of persons to be dis-
ment dwelling by or on behalf of a de- placed. Notwithstanding any provision
214
of this subpart, no person shall be re- cluding upgraded, but smaller replace-
quired to move from a displacement ment housing that is decent, safe, and
dwelling unless comparable replace- sanitary and adequate to accommodate
ment housing is available to such per- individuals or families displaced from
son. No person may be deprived of any marginal or substandard housing with
rights the person may have under the probable functional obsolescence. In no
Uniform Act or this part. The Agency event, however, shall a displaced per-
shall not require any displaced person son be required to move into a dwelling
to accept a dwelling provided by the that is not functionally equivalent in
Agency under these procedures (unless accordance with § 24.2(a)(6)(ii) of this
the Agency and the displaced person part.
have entered into a contract to do so) (3) The Agency shall provide assist-
in lieu of any acquisition payment or ance under this subpart to a displaced
any relocation payment for which the person who is not eligible to receive a
person may otherwise be eligible. replacement housing payment under
(c) Methods of providing comparable re- §§ 24.401 and 24.402 because of failure to
placement housing. Agencies shall have meet the length of occupancy require-
broad latitude in implementing this ment when comparable replacement
subpart, but implementation shall be rental housing is not available at rent-
for reasonable cost, on a case-by-case al rates within the displaced person’s
basis unless an exception to case-by- financial means. (See
case analysis is justified for an entire § 24.2(a)(6)(viii)(C).) Such assistance
project. shall cover a period of 42 months.
(1) The methods of providing replace-
ment housing of last resort include, Subpart F—Mobile Homes
but are not limited to:
(i) A replacement housing payment § 24.501 Applicability.
in excess of the limits set forth in (a) General. This subpart describes
§ 24.401 or § 24.402. A replacement hous- the requirements governing the provi-
ing payment under this section may be sion of replacement housing payments
provided in installments or in a lump to a person displaced from a mobile
sum at the Agency’s discretion. home and/or mobile home site who
(ii) Rehabilitation of and/or additions meets the basic eligibility require-
to an existing replacement dwelling. ments of this part. Except as modified
(iii) The construction of a new re- by this subpart, such a displaced per-
placement dwelling. son is entitled to a moving expense
(iv) The provision of a direct loan, payment in accordance with subpart D
which requires regular amortization or of this part and a replacement housing
deferred repayment. The loan may be payment in accordance with subpart E
unsecured or secured by the real prop- of this part to the same extent and sub-
erty. The loan may bear interest or be ject to the same requirements as per-
interest-free. sons displaced from conventional
(v) The relocation and, if necessary, dwellings. Moving cost payments to
rehabilitation of a dwelling. persons occupying mobile homes are
(vi) The purchase of land and/or a re- covered in § 24.301(g)(1) through (g)(10).
placement dwelling by the displacing (b) Partial acquisition of mobile home
Agency and subsequent sale or lease to, park. The acquisition of a portion of a
or exchange with a displaced person. mobile home park property may leave
(vii) The removal of barriers for per- a remaining part of the property that
sons with disabilities. is not adequate to continue the oper-
(2) Under special circumstances, con- ation of the park. If the Agency deter-
sistent with the definition of a com- mines that a mobile home located in
parable replacement dwelling, modified the remaining part of the property
methods of providing replacement must be moved as a direct result of the
housing of last resort permit consider- project, the occupant of the mobile
ation of replacement housing based on home shall be considered to be a dis-
space and physical characteristics dif- placed person who is entitled to reloca-
ferent from those in the displacement tion payments and other assistance
dwelling (see appendix A, § 24.404(c)), in- under this part.
215
§ 24.502 Replacement housing payment as just compensation for the acquisi-

for 180-day mobile homeowner dis- tion of the mobile home, and/or site, if
placed from a mobile home, and/or owned by the displaced mobile home-
from the acquired mobile home site. owner.
(a) Eligibility. An owner-occupant dis- (2) If the Agency does not purchase
placed from a mobile home or site is the mobile home as real estate but the
entitled to a replacement housing pay- owner is determined to be displaced
ment, not to exceed $22,500, under from the mobile home and eligible for
§ 24.401 if: a replacement housing payment based
(1) The person occupied the mobile on paragraph (a)(1)(iii) of this section,
home on the displacement site for at the eligible price differential payment
least 180 days immediately before: for the purchase of a comparable re-
(i) The initiation of negotiations to placement mobile home, is the lesser of
acquire the mobile home, if the person the displaced mobile homeowner’s net
owned the mobile home and the mobile cost to purchase a replacement mobile
home is real property; home (i.e., purchase price of the re-
(ii) The initiation of negotiations to placement mobile home less trade-in or
acquire the mobile home site if the mo- sale proceeds of the displacement mo-
bile home is personal property, but the bile home); or, the cost of the Agency’s
person owns the mobile home site; or selected comparable mobile home less
(iii) The date of the Agency’s written the Agency’s estimate of the salvage or
notification to the owner-occupant trade-in value for the mobile home
that the owner is determined to be dis- from which the person is displaced.
placed from the mobile home as de- (3) If a comparable replacement mo-
scribed in paragraphs (a)(3)(i) through bile home site is not available, the
(iv) of this section. price differential payment shall be
(2) The person meets the other basic computed on the basis of the reason-
eligibility requirements at § 24.401(a)(2); able cost of a conventional comparable
and replacement dwelling.
(3) The Agency acquires the mobile (c) Rental assistance payment for a 180-
home as real estate, or acquires the day owner-occupant that is displaced
mobile home site from the displaced from a leased or rented mobile home site.
owner, or the mobile home is personal If the displacement mobile home site is
property but the owner is displaced leased or rented, a displaced 180-day
from the mobile home because the owner-occupant is entitled to a rental
Agency determines that the mobile assistance payment computed as de-
home: scribed in § 24.402(b). This rental assist-
(i) Is not, and cannot economically be ance payment may be used to lease a
made decent, safe, and sanitary; replacement site; may be applied to the
(ii) Cannot be relocated without sub- purchase price of a replacement site; or
stantial damage or unreasonable cost; may be applied, with any replacement
(iii) Cannot be relocated because housing payment attributable to the
there is no available comparable re- mobile home, to the purchase of a re-
placement site; or placement mobile home or conven-
(iv) Cannot be relocated because it tional decent, safe and sanitary dwell-
does not meet mobile home park ening.
trance requirements. (d) Owner-occupant not displaced from
(b) Replacement housing payment com- the mobile home. If the Agency deter-
putation for a 180-day owner that is dis- mines that a mobile home is personal
placed from a mobile home. The replace- property and may be relocated to a
ment housing payment for an eligible comparable replacement site, but the
displaced 180-day owner is computed as owner-occupant elects not to do so, the
described at § 24.401(b) incorporating owner is not entitled to a replacement
the following, as applicable: housing payment for the purchase of a
(1) If the Agency acquires the mobile replacement mobile home. However,
home as real estate and/or acquires the the owner is eligible for moving costs
owned site, the acquisition cost used to described at § 24.301 and any replace-
compute the price differential payment ment housing payment for the pur-
is the actual amount paid to the owner chase or rental of a comparable site as
216
described in this section or § 24.503 as § 24.603 Monitoring and corrective ac-

applicable. tion.
(a) The Federal Lead Agency shall, in
§ 24.503 Replacement housing payment coordination with other Federal Agen-
for 90-day mobile home occupants.
cies, monitor from time to time State
A displaced tenant or owner-occu- Agency implementation of programs or
pant of a mobile home and/or site is el- projects conducted under the certifi-
igible for a replacement housing pay- cation process and the State Agency
ment, not to exceed $5,250, under shall make available any information
§ 24.402 if: required for this purpose.
(a) The person actually occupied the (b) The Lead Agency may require
displacement mobile home on the dis- periodic information or data from af-
placement site for at least 90 days im- fected Federal or State Agencies.
mediately prior to the initiation of ne- (c) A Federal Agency may, after con-
gotiations; sultation with the Lead Agency, and
(b) The person meets the other basic notice to and consultation with the
governor, or his or her designee, re-
eligibility requirements at § 24.402(a);
scind any previous approval provided
and
under this subpart if the certifying
(c) The Agency acquires the mobile State Agency fails to comply with its
home and/or mobile home site, or the certification or with applicable State
mobile home is not acquired by the law and regulations. The Federal Agen-
Agency but the Agency determines cy shall initiate consultation with the
that the occupant is displaced from the Lead Agency at least 30 days prior to
mobile home because of one of the cir- any decision to rescind approval of a
cumstances described at § 24.502(a)(3). certification under this subpart. The
Lead Agency will also inform other
Subpart G—Certification Federal Agencies, which have accepted
a certification under this subpart from
§ 24.601 Purpose. the same State Agency, and will take
whatever other action that may be ap-
This subpart permits a State Agency
propriate.
to fulfill its responsibilities under the
(d) Section 103(b)(2) of the Uniform
Uniform Act by certifying that it shall Act, as amended, requires that the
operate in accordance with State laws head of the Lead Agency report bienni-
and regulations which shall accomplish ally to the Congress on State Agency
the purpose and effect of the Uniform implementation of section 103. To en-
Act, in lieu of providing the assurances able adequate preparation of the pre-
required by § 24.4 of this part. scribed biennial report, the Lead Agen-
cy may require periodic information or
§ 24.602 Certification application. data from affected Federal or State
An Agency wishing to proceed on the Agencies.
basis of a certification may request an
application for certification from the
Lead Agency Director, Office of Real
Estate Services, HEPR–1, Federal APPENDIX A TO PART 24—ADDITIONAL
Highway Administration, 1200 New Jer- INFORMATION
sey Avenue, SE., Washington, DC 20590. This appendix provides additional informa-
The completed application for certifi- tion to explain the intent of certain provi-
cation must be approved by the gov- sions of this part.
ernor of the State, or the governor’s
SUBPART A—GENERAL
designee, and must be coordinated with
the Federal funding Agency, in accord- Section 24.2 Definitions and Acronyms
Section 24.2(a)(6) Definition of comparable re-
ance with application procedures.
placement dwelling. The requirement in
[70 FR 611, Jan. 4, 2005, as amended at 73 FR § 24.2(a)(6)(ii) that a comparable replacement
33329, June 12, 2008] dwelling be ‘‘functionally equivalent’’ to the

displacement dwelling means that it must
perform the same function, and provide the
217
same utility. While it need not possess every rental assistance payment under § 24.402
feature of the displacement dwelling, the would be computed on the basis of the per-
principal features must be present. son’s actual out-of-pocket cost for the re-
For example, if the displacement dwelling placement housing.)
contains a pantry and a similar dwelling is Section 24.2(a)(8)(ii) Decent, Safe and Sani-
not available, a replacement dwelling with tary. Many local housing and occupancy
ample kitchen cupboards may be acceptable. codes require the abatement of deteriorating
Insulated and heated space in a garage might paint, including lead-based paint and lead-
prove an adequate substitute for basement based paint dust, in protecting the public
workshop space. A dining area may sub- health and safety. Where such standards
stitute for a separate dining room. Under exist, they must be honored. Even where
some circumstances, attic space could sub- local law does not mandate adherence to
stitute for basement space for storage pur- such standards, it is strongly recommended
poses, and vice versa. that they be considered as a matter of public
Only in unusual circumstances may a com- policy.
parable replacement dwelling contain fewer Section 24.2(a)(8)(vii) Persons with a dis-
rooms or, consequentially, less living space ability. Reasonable accommodation of a dis-
than the displacement dwelling. Such may placed person with a disability at the re-
be the case when a decent, safe, and sanitary placement dwelling means the Agency is re-
replacement dwelling (which by definition is quired to address persons with a physical im-
‘‘adequate to accommodate’’ the displaced pairment that substantially limits one or
person) may be found to be ‘‘functionally more of the major life activities. In these
equivalent’’ to a larger but very run-down situations, reasonable accommodation
substandard displacement dwelling. Another should include the following at a minimum:
example is when a displaced person accepts Doors of adequate width; ramps or other as-
an offer of government housing assistance sistance devices to traverse stairs and access
and the applicable requirements of such bathtubs, shower stalls, toilets and sinks;
housing assistance program require that the storage cabinets, vanities, sink and mirrors
displaced person occupy a dwelling that has at appropriate heights. Kitchen accommoda-
fewer rooms or less living space than the dis- tions will include sinks and storage cabinets
placement dwelling. built at appropriate heights for access. The
Section 24.2(a)(6)(vii). The definition of com- Agency shall also consider other items that
parable replacement dwelling requires that a may be necessary, such as physical modifica-
comparable replacement dwelling for a per- tion to a unit, based on the displaced per-
son who is not receiving assistance under son’s needs.
any government housing program before dis- Section 24.2(a)(9)(ii)(D) Persons not displaced.
placement must be currently available on Paragraph (a)(9)(ii)(D) of this section recog-
the private market without any subsidy nizes that there are circumstances where the
under a government housing program. acquisition, rehabilitation or demolition of
Section 24.2(a)(6)(ix). A public housing unit real property takes place without the intent
may qualify as a comparable replacement or necessity that an occupant of the prop-
dwelling only for a person displaced from a erty be permanently displaced. Because such
public housing unit. A privately owned occupants are not considered ‘‘displaced per-
dwelling with a housing program subsidy sons’’ under this part, great care must be ex-
tied to the unit may qualify as a comparable ercised to ensure that they are treated fairly
replacement dwelling only for a person dis- and equitably. For example, if the tenant-oc-
placed from a similarly subsidized unit or cupant of a dwelling will not be displaced,
public housing. but is required to relocate temporarily in
A housing program subsidy that is paid to connection with the project, the temporarily
a person (not tied to the building), such as a occupied housing must be decent, safe, and
HUD Section 8 Housing Voucher Program, sanitary and the tenant must be reimbursed
may be reflected in an offer of a comparable for all reasonable out-of-pocket expenses in-
replacement dwelling to a person receiving a curred in connection with the temporary re-
similar subsidy or occupying a privately location. These expenses may include mov-
owned subsidized unit or public housing unit ing expenses and increased housing costs
before displacement. during the temporary relocation. Temporary
However, nothing in this part prohibits an relocation should not extend beyond one
Agency from offering, or precludes a person year before the person is returned to his or
from accepting, assistance under a govern- her previous unit or location. The Agency
ment housing program, even if the person did must contact any residential tenant who has
not receive similar assistance before dis- been temporarily relocated for a period be-
placement. However, the Agency is obligated yond one year and offer all permanent relo-
to inform the person of his or her options cation assistance. This assistance would be
under this part. (If a person accepts assist- in addition to any assistance the person has
ance under a government housing assistance already received for temporary relocation,
program, the rules of that program gov- and may not be reduced by the amount of
erning the size of the dwelling apply, and the any temporary relocation assistance.
218
Similarly, if a business will be shut-down cludes notifying such tenants of their poten-
for any length of time due to rehabilitation tial eligibility when negotiations are initi-
of a site, it may be temporarily relocated ated, notifying them if they become fully eli-
and reimbursed for all reasonable out of gible, and, in the event the purchase of the
pocket expenses or must be determined to be property will not occur, notifying them that
displaced at the Agency’s option. they are no longer eligible for relocation
Any person who disagrees with the Agen- benefits. If a tenant is not readily accessible,
cy’s determination that he or she is not a as the result of a disaster or emergency, the
displaced person under this part may file an Agency must make a good faith effort to pro-
appeal in accordance with 49 CFR part 24.10
vide these notifications and document its ef-
of this regulation.
forts in writing.
Section 24.2(a)(11) Dwelling Site. This defini-
tion ensures that the computation of re- Section 24.2(a)(17) Mobile home. The fol-
placement housing payments are accurate lowing examples provide additional guidance
and realistic (a) when the dwelling is located on the types of mobile homes and manufac-
on a larger than normal site, (b) when mixed- tured housing that can be found acceptable
use properties are acquired, (c) when more as comparable replacement dwellings for per-
than one dwelling is located on the acquired sons displaced from mobile homes. A rec-
property, or (d) when the replacement dwell- reational vehicle that is capable of providing
ing is retained by an owner and moved to an- living accommodations may be considered a
other site. replacement dwelling if the following cri-
Section 24.2(a)(14) Household income (exclu- teria are met: the recreational vehicle is
sions). Household income for purposes of this purchased and occupied as the ‘‘primary’’
regulation does not include program benefits place of residence; it is located on a pur-
that are not considered income by Federal chased or leased site and connected to or
law such as food stamps and the Women In- have available all necessary utilities for
fants and Children (WIC) program. For a functioning as a housing unit on the date of
more detailed list of income exclusions see the displacing Agency’s inspection; and, the
Federal Highway Administration, Office of
dwelling, as sited, meets all local, State, and
Real Estate Services Web site: http://
Federal requirements for a decent, safe and
www.fhwa.dot.gov/realestate/. (FR 4644–N–16
page 20319 Updated.) If there is a question on sanitary dwelling. (The regulations of some
whether or not to include income from a spe- local jurisdictions will not permit the con-
cific program contact the Federal Agency sideration of these vehicles as decent, safe
administering the program. and sanitary dwellings. In those cases, the
Section 24(a)(15) Initiation of negotiations. recreational vehicle will not qualify as a re-
This section provides a special definition for placement dwelling.)
acquisition and displacements under Pub. L. For HUD programs, mobile home is defined
96–510 or Superfund. The order of activities as ‘‘a structure, transportable in one or more
under Superfund may differ slightly in that sections, which, in the traveling mode, is
temporary relocation may precede acquisi- eight body feet or more in width or forty
tion. Superfund is a program designed to body feet or more in length, or, when erected
clean up hazardous waste sites. When such a on site, is three hundred or more square feet,
site is discovered, it may be necessary, in and which is built on a permanent chassis
certain limited circumstances, to alert indi- and designed to be used as a dwelling with or
vidual owners and tenants to potential without a permanent foundation when con-
health or safety threats and to offer to tem- nected to the required utilities and includes
porarily relocate them while additional in- the plumbing, heating, air-conditioning, and
formation is gathered. If a decision is later
electrical systems contained therein; except
made to permanently relocate such persons,
that such terms shall include any structure
those who had been temporarily relocated
which meets all the requirements of this
under Superfund authority would no longer
paragraph except the size requirements and
be on site when a formal, written offer to ac-
quire the property was made, and thus would with respect to which the manufacturer vol-
lose their eligibility for a replacement hous- untarily files a certification required by the
ing payment. In order to prevent this unfair Secretary of HUD and complies with the
outcome, we have provided a definition of standards established under the National
initiation of negotiation, which is based on Manufactured Housing Construction and
the date the Federal Government offers to Safety Standards Act, provided by Congress
temporarily relocate an owner or tenant in the original 1974 Manufactured Housing
from the subject property. Act.’’ In 1979 the term ‘‘mobile home’’ was
Section 24.2(a)(15)(iv) Initiation of negotia- changed to ‘‘manufactured home.’’ For pur-
tions (Tenants.) Tenants who occupy property poses of this regulation, the terms mobile
that may be acquired amicably, without re- home and manufactured home are synony-
course to the use of the power of eminent do- mous.

main, must be fully informed as to their eli- When assembled, manufactured homes
gibility for relocation assistance. This in- built after 1976 contain no less than 320
219
square feet. They may be single or multi-sec- the property and has notified the owner of
tioned units when installed. Their designa- this amount in writing, an Agency may ne-
tion as personalty or realty will be deter- gotiate freely with the owner in order to
mined by State law. When determined to be reach agreement. Since these transactions
realty, most are eligible for conventional are voluntary, accomplished by a willing
mortgage financing. buyer and a willing seller, negotiations may
The 1976 HUD standards distinguish manu- result in agreement for the amount of the
factured homes from factory-built ‘‘modular original estimate, an amount exceeding it,
homes’’ as well as conventional or ‘‘stick- or for a lesser amount. Although not re-
built’’ homes. Both of these types of housing quired by the regulations, it would be en-
are required to meet State and local con- tirely appropriate for Agencies to apply the
struction codes. administrative settlement concept and pro-
Section 24.3 No Duplication of Payments. cedures in § 24.102(i) to negotiate amounts
This section prohibits an Agency from mak- that exceed the original estimate of market
ing a payment to a person under these regu- value. Agencies shall not take any coercive
lations that would duplicate another pay- action in order to reach agreement on the
ment the person receives under Federal, price to be paid for the property.
State, or local law. The Agency is not re- Section 24.101(c) Less-than-full-fee interest in
quired to conduct an exhaustive search for real property. This provision provides a
such other payments; it is only required to benchmark beyond which the requirements
avoid creating a duplication based on the of the subpart clearly apply to leases.
Agency’s knowledge at the time a payment Section 24.102(c)(2) Appraisal, waiver thereof,
is computed. and invitation to owner. The purpose of the
appraisal waiver provision is to provide
SUBPART B—REAL PROPERTY ACQUISITION Agencies a technique to avoid the costs and
Federal Agencies may find that, for Fed- time delay associated with appraisal require-
eral eminent domain purposes, the terms ments for low-value, non-complex acquisi-
‘‘fair market value’’ (as used throughout this tions. The intent is that non-appraisers
subpart) and ‘‘market value,’’ which may be make the waiver valuations, freeing apprais-
the more typical term in private trans- ers to do more sophisticated work.
actions, may be synonymous. The Agency employee making the deter-
Section 24.101(a) Direct Federal program or mination to use the appraisal waiver process
project. All 49 CFR Part 24 Subpart B (real must have enough understanding of ap-
property acquisition) requirements apply to praisal principles to be able to determine
all direct acquisitions for Federal programs whether or not the proposed acquisition is
and projects by Federal Agencies, except for low value and uncomplicated.
acquisitions undertaken by the Tennessee Waiver valuations are not appraisals as de-
Valley Authority or the Rural Utilities Serv- fined by the Uniform Act and these regula-
ice. There are no exceptions for ‘‘voluntary tions; therefore, appraisal performance re-
transactions.’’ quirements or standards, regardless of their
Section 24.101(b)(1)(i). The term ‘‘general ge- source, are not required for waiver valu-
ographic area’’ is used to clarify that the ations by this rule. Since waiver valuations
‘‘geographic area’’ is not to be construed to are not appraisals, neither is there a require-
be a small, limited area. ment for an appraisal review. However, the
Sections 24.101(b)(1)(iv) and (2)(ii). These sec- Agency must have a reasonable basis for the
tions provide that, for programs and projects waiver valuation and an Agency official
receiving Federal financial assistance de- must still establish an amount believed to be
scribed in §§ 24.101(b)(1) and (2), Agencies are just compensation to offer the property
to inform the owner(s) in writing of the owner(s).
Agency’s estimate of the fair market value The definition of ‘‘appraisal’’ in the Uni-
for the property to be acquired. form Act and appraisal waiver provisions of
While this part does not require an ap- the Uniform Act and these regulations are
praisal for these transactions, Agencies may Federal law and public policy and should be
still decide that an appraisal is necessary to considered as such when determining the im-
support their determination of the market pact of appraisal requirements levied by oth-
value of these properties, and, in any event, ers.
Agencies must have some reasonable basis Section 24.102(d) Establishment of offer of just
for their determination of market value. In compensation. The initial offer to the prop-
addition, some of the concepts inherent in erty owner may not be less than the amount
Federal Program appraisal practice are ap- of the Agency’s approved appraisal, but may
propriate for these estimates. It would be ap- exceed that amount if the Agency deter-
propriate for Agencies to adhere to project mines that a greater amount reflects just
influence restrictions, as well as guard compensation for the property.
against discredited ‘‘public interest value’’ Section 24.102(f) Basic negotiation procedures.
valuation concepts. An offer should be adequately presented to

After an Agency has established an an owner, and the owner should be properly
amount it believes to be the market value of informed. Personal, face-to-face contact
220
should take place, if feasible, but this sec- cy’s right to terminate occupancy on short
tion does not require such contact in all notice (whether or not the renter also has
cases. that right) supports the establishment of a
This section also provides that the prop- lesser rental than might be found in a
erty owner be given a reasonable oppor- longer, fixed-term situation.
tunity to consider the Agency’s offer and to Section 24.102(n) Conflict of interest. The
present relevant material to the Agency. In overall objective is to minimize the risk of
order to satisfy this requirement, Agencies fraud while allowing Agencies to operate as
must allow owners time for analysis, re- efficiently as possible. There are three parts
search and development, and compilation of to this provision.
a response, including perhaps getting an ap- The first provision is the prohibition
praisal. The needed time can vary signifi- against having any interest in the real prop-
cantly, depending on the circumstances, but erty being valued by the appraiser (for an ap-
thirty (30) days would seem to be the min- praisal), the valuer (for a waiver estimate) or
imum time these actions can be reasonably the review appraiser (for an appraisal re-
expected to require. Regardless of project view.)
time pressures, property owners must be af- The second provision is that no person
forded this opportunity. functioning as a negotiator for a project or
In some jurisdictions, there is pressure to
program can supervise or formally evaluate
initiate formal eminent domain procedures
the performance of any appraiser or review
at the earliest opportunity because com-
appraiser performing appraisal or appraisal
pleting the eminent domain process, includ-
review work for that project or program. The
ing gaining possession of the needed real
intent of this provision is to ensure ap-
property, is very time consuming. These pro-
praisal/valuation independence and to pre-
visions are not intended to restrict this prac-
vent inappropriate influence. It is not in-
tice, so long as it does not interfere with the
tended to prevent Agencies from providing
reasonable time that must be provided for
appraisers/valuers with appropriate project
negotiations, described above, and the Agen-
cies adhere to the Uniform Act ban on coer- information and participating in deter-
cive action (section 301(7) of the Uniform mining the scope of work for the appraisal or
Act). valuation. For a program or project receiv-
If the owner expresses intent to provide an ing Federal financial assistance, the Federal
appraisal report, Agencies are encouraged to funding Agency may waive this requirement
provide the owner and/or his/her appraiser a if it would create a hardship for the Agency.
copy of Agency appraisal requirements and The intent is to accommodate Federal-aid
inform them that their appraisal should be recipients that have a small staff where this
based on those requirements. provision would be unworkable.
Section 24.102(i) Administrative settlement. The third provision is to minimize situa-
This section provides guidance on adminis- tions where administrative costs exceed ac-
trative settlement as an alternative to judi- quisition costs. Section 24.102(n) also pro-
cial resolution of a difference of opinion on vides that the same person may prepare a
the value of a property, in order to avoid un- valuation estimate (including an appraisal)
necessary litigation and congestion in the and negotiate that acquisition, if the valu-
courts. ation estimate amount is $10,000 or less.
All relevant facts and circumstances However, it should be noted that this excep-
should be considered by an Agency official tion for properties valued at $10,000 or less is
delegated this authority. Appraisers, includ- not mandatory, e.g., Agencies are not re-
ing review appraisers, must not be pressured quired to use those who prepare a waiver
to adjust their estimate of value for the pur- valuation or appraisal of $10,000 or less to ne-
pose of justifying such settlements. Such ac- gotiate the acquisition, and, all appraisals
tion would invalidate the appraisal process. must be reviewed in accordance with § 24.104.
Section 24.102(j) Payment before taking pos- This includes appraisals of real property val-
session. It is intended that a right-of-entry ued at $10,000 or less.
for construction purposes be obtained only in Section 24.103 Criteria for Appraisals. The
the exceptional case, such as an emergency term ‘‘requirements’’ is used throughout this
project, when there is no time to make an section to avoid confusion with The Ap-
appraisal and purchase offer and the prop- praisal Foundation’s Uniform Standards of
erty owner is agreeable to the process. Professional Appraisal Practice (USPAP)
Section 24.102(m) Fair rental. Section 301(6) ‘‘standards.’’ Although this section discusses
of the Uniform Act limits what an Agency appraisal requirements, the definition of
may charge when a former owner or previous ‘‘appraisal’’ itself at § 24.2(a)(3) includes ap-
occupant of a property is permitted to rent praisal performance requirements that are
the property for a short term or when occu- an inherent part of this section.
pancy is subject to termination by the Agen- The term ‘‘Federal and federally-assisted
cy on short notice. Such rent may not exceed program or project’’ is used to better iden-
‘‘the fair rental value of the property to a tify the type of appraisal practices that are
short-term occupier.’’ Generally, the Agen- to be referenced and to differentiate them
221
from the private sector, especially mortgage sales comparison approach will be adequate
lending, appraisal practice. by itself and yield credible appraisal results
Section 24.103(a) Appraisal requirements. The because of the type of property being ap-
first sentence instructs readers that require- praised and the availability of sales data, it
ments for appraisals for Federal and feder- may limit the appraisal assignment to the
ally-assisted programs or projects are lo- sales comparison approach. This should be
cated in 49 CFR part 24. These are the basic reflected in the scope of work.
appraisal requirements for Federal and fed- Section 24.103(b) Influence of the project on
erally-assisted programs or projects. How- just compensation. As used in this section, the
ever, Agencies may enhance and expand on term ‘‘project’’ means an undertaking which
them, and there may be specific project or is planned, designed, and intended to operate
program legislation that references other ap- as a unit.
praisal requirements. When the public is aware of the proposed
These appraisal requirements are nec- project, project area property values may be
essarily designed to comply with the Uni- affected. Therefore, property owners should
form Act and other Federal eminent domain not be penalized because of a decrease in
based appraisal requirements. They are also value caused by the proposed project nor
considered to be consistent with Standards reap a windfall at public expense because of
Rules 1, 2, and 3 of the 2004 edition of the increased value created by the proposed
USPAP. Consistency with USPAP has been a project.
feature of these appraisal requirements since
Section 24.103(d)(1). The appraiser and re-
the beginning of USPAP. This ‘‘consistent’’
view appraiser must each be qualified and
relationship was more formally recognized in
competent to perform the appraisal and ap-
OMB Bulletin 92–06. While these require-
praisal review assignments, respectively.
ments are considered consistent with
Among other qualifications, State licensing
USPAP, neither can supplant the other;
or certification and professional society des-
their provisions are neither identical, nor
ignations can help provide an indication of
interchangeable. Appraisals performed for
Federal and federally-assisted real property an appraiser’s abilities.
acquisition must follow the requirements in Section 24.104 Review of appraisals. The term
this regulation. Compliance with any other ‘‘review appraiser’’ is used rather than ‘‘re-
appraisal requirements is not the purview of viewing appraiser,’’ to emphasize that ‘‘re-
this regulation. An appraiser who is com- view appraiser’’ is a separate specialty and
mitted to working within the bounds of not just an appraiser who happens to be re-
USPAP should recognize that compliance viewing an appraisal. Federal Agencies have
with both USPAP and these requirements long held the perspective that appraisal re-
may be achieved by using the Supplemental view is a unique skill that, while it certainly
Standards Rule and the Jurisdictional Ex- builds on appraisal skills, requires more. The
ception Rule of USPAP, where applicable. review appraiser should possess both ap-
The term ‘‘scope of work’’ defines the gen- praisal technical abilities and the ability to
eral parameters of the appraisal. It reflects be the two-way bridge between the Agency’s
the needs of the Agency and the require- real property valuation needs and the ap-
ments of Federal and federally-assisted pro- praiser.
gram appraisal practice. It should be devel- Agency review appraisers typically per-
oped cooperatively by the assigned appraiser form a role greater than technical appraisal
and an Agency official who is competent to review. They are often involved in early
both represent the Agency’s needs and re- project development. Later they may be in-
spect valid appraisal practice. The scope of volved in devising the scope of work state-
work statement should include the purpose ments and participate in making appraisal
and/or function of the appraisal, a definition assignments to fee and/or staff appraisers.
of the estate being appraised, and if it is fair They are also mentors and technical advi-
market value, its applicable definition, and sors, especially on Agency policy and re-
the assumptions and limiting conditions af- quirements, to appraisers, both staff and fee.
fecting the appraisal. It may include param- Additionally, review appraisers are fre-
eters for the data search and identification quently technical advisors to other Agency
of the technology, including approaches to officials.
value, to be used to analyze the data. The Section 24.104(a). This paragraph states that
scope of work should consider the specific re- the review appraiser is to review the apprais-
quirements in 49 CFR 24.103(a)(2)(i) through er’s presentation and analysis of market in-
(v) and address them as appropriate. formation and that it is to be reviewed
Section 24.103(a)(1). The appraisal report against § 24.103 and other applicable require-
should identify the items considered in the ments, including, to the extent appropriate,
appraisal to be real property, as well as the Uniform Appraisal Standards for Federal
those identified as personal property. Land Acquisition. The appraisal review is to
Section 24.103(a)(2). All relevant and reli- be a technical review by an appropriately

able approaches to value are to be used. How- qualified review appraiser. The qualifica-
ever, where an Agency determines that the tions of the review appraiser and the level of
222
explanation of the basis for the review ap- Section 24.106(b). Expenses incidental to
praiser’s recommended (or approved) value transfer of title to the agency. Generally, the
depend on the complexity of the appraisal Agency is able to pay such incidental costs
problem. If the initial appraisal submitted directly and, where feasible, is required to do
for review is not acceptable, the review ap- so. In order to prevent the property owner
praiser is to communicate and work with the from making unnecessary out-of-pocket ex-
appraiser to the greatest extent possible to penditures and to avoid duplication of ex-
facilitate the appraiser’s development of an penses, the property owner should be in-
acceptable appraisal. formed early in the acquisition process of
In doing this, the review appraiser is to re- the Agency’s intent to make such arrange-
main in an advisory role, not directing the ments. Such expenses must be reasonable
appraisal, and retaining objectivity and op- and necessary.
tions for the appraisal review itself.
SUBPART C—GENERAL RELOCATION
If the Agency intends that the staff review REQUIREMENTS
appraiser approve the appraisal (as the basis
for the establishment of the amount believed Section 24.202 Applicability and Section
to be just compensation), or establish the 205(c) Services to be provided. In extraordinary
amount the Agency believes is just com- circumstances, when a displaced person is
pensation, she/he must be specifically au- not readily accessible, the Agency must
thorized by the Agency to do so. If the re- make a good faith effort to comply with
view appraiser is not specifically authorized these sections and document its efforts in
to approve the appraisal (as the basis for the writing.
establishment of the amount believed to be Section 24.204 Availability of comparable re-
just compensation), or establish the amount placement dwelling before displacement.
believed to be just compensation, that au- Section 24.204(a) General. This provision re-
thority remains with another Agency offi- quires that no one may be required to move
cial. from a dwelling without a comparable re-
Section 24.104(b). In developing an inde- placement dwelling having been made avail-
pendent approved or recommended value, the able. In addition, § 24.204(a) requires that,
review appraiser may reference any accept- ‘‘where possible, three or more comparable
able resource, including acceptable parts of replacement dwellings shall be made avail-
any appraisal, including an otherwise unac- able.’’ Thus, the basic standard for the num-
ceptable appraisal. When a review appraiser ber of referrals required under this section is
develops an independent value, while retain- three. Only in situations where three com-
parable replacement dwellings are not avail-
ing the appraisal review, that independent
able (e.g., when the local housing market
value also becomes the approved appraisal of
does not contain three comparable dwell-
the fair market value for Uniform Act Sec-
ings) may the Agency make fewer than three
tion 301(3) purposes. It is within Agency dis-
referrals.
cretion to decide whether a second review is
Section 24.205 Relocation assistance advisory
needed if the first review appraiser estab-
services. Section 24.205(c)(2)(ii)(D) emphasizes
lishes a value different from that in the ap-
that if the comparable replacement dwell-
praisal report or reports on the property.
ings are located in areas of minority con-
Section 24.104(c). Before acceptance of an centration, minority persons should, if pos-
appraisal, the review appraiser must deter- sible, also be given opportunities to relocate
mine that the appraiser’s documentation, in- to replacement dwellings not located in such
cluding valuation data and analysis of that areas.
data, demonstrates the soundness of the ap- Section 24.206 Eviction for cause. An evic-
praiser’s opinion of value. For the purposes tion related to non-compliance with a re-
of this part, an acceptable appraisal is any quirement related to carrying out a project
appraisal that, on its own, meets the require- (e.g., failure to move or relocate when in-
ments of § 24.103. An approved appraisal is structed, or to cooperate in the relocation
the one acceptable appraisal that is deter- process) shall not negate a person’s entitle-
mined to best fulfill the requirement to be ment to relocation payments and other as-
the basis for the amount believed to be just sistance set forth in this part.
compensation. Recognizing that appraisal is Section 24.207 General Requirements–Claims
not an exact science, there may be more for relocation payments. Section 24.207(a) al-
than one acceptable appraisal of a property, lows an Agency to make a payment for low
but for the purposes of this part, there can be cost or uncomplicated nonresidential moves
only one approved appraisal. without additional documentation, as long
At the Agency’s discretion, for a low value as the payment is limited to the amount of
property requiring only a simple appraisal the lowest acceptable bid or estimate, as pro-
process, the review appraiser’s recommenda- vided for in § 24.301(d)(1).
tion (or approval), endorsing the appraiser’s While § 24.207(f) prohibits an Agency from
report, may be determined to satisfy the re- proposing or requesting that a displaced per-
quirement for the review appraiser’s signed son waive his or her rights or entitlements
report and certification. to relocation assistance and payments, an
223
Agency may accept a written statement changes, and attendance at zoning hearings.
from the displaced person that states that Necessary attorney fees required to obtain
they have chosen not to accept some or all of such licenses or permits are also reimburs-
the payments or assistance to which they able. Time spent in negotiating the purchase
are entitled. Any such written statement of a replacement business site is also reim-
must clearly show that the individual knows bursable based on a reasonable salary or
what they are entitled to receive (a copy of earnings rate. In those instances when such
the Notice of Eligibility which was provided additional costs to investigate and acquire
may serve as documentation) and their the site exceed $2,500, the displacing Agency
statement must specifically identify which may consider waiver of the cost limitation
assistance or payments they have chosen not under the § 24.7, waiver provision. Such a
to accept. The statement must be signed and waiver should be subject to the approval of
dated and may not be coerced by the Agency. the Federal-funding Agency in accordance
with existing delegation authority.
SUBPART D—PAYMENT FOR MOVING AND Section 24.303(b) Professional Services. If a
RELATED EXPENSES question should arise as to what is a ‘‘rea-
Section 24.301. Payment for Actual Reason- sonable hourly rate,’’ the Agency should
able Moving and Related Expenses. compare the rates of other similar profes-
Section 24.301(e) Personal property only. Ex- sional providers in that area.
amples of personal property only moves Section 24.305 Fixed Payment for Moving Ex-
might be: personal property that is located penses—Nonresidential Moves.
on a portion of property that is being ac- Section 24.305(d) Nonprofit organization.
quired, but the business or residence will not Gross revenues may include membership
be taken and can still operate after the ac- fees, class fees, cash donations, tithes, re-
quisition; personal property that is located ceipts from sales or other forms of fund col-
in a mini-storage facility that will be ac- lection that enables the nonprofit organiza-
quired or relocated; personal property that is tion to operate. Administrative expenses are
stored on vacant land that is to be acquired. those for administrative support such as
For a nonresidential personal property rent, utilities, salaries, advertising, and
only move, the owner of the personal prop- other like items as well as fundraising ex-
erty has the options of moving the personal penses. Operating expenses for carrying out
property by using a commercial mover or a the purposes of the nonprofit organization
self-move. are not included in administrative expenses.
If a question arises concerning the reason- The monetary receipts and expense amounts
ableness of an actual cost move, the acquir- may be verified with certified financial
ing Agency may obtain estimates from quali- statements or financial documents required
fied movers to use as the standard in deter- by public Agencies.
mining the payment. Section 24.305(e) Average annual net earnings
Section 24.301 (g)(14)(i) and (ii). If the piece of a business or farm operation. If the average
of equipment is operational at the acquired annual net earnings of the displaced busi-
site, the estimated cost to reconnect the ness, farm, or nonprofit organization are de-
equipment shall be based on the cost to in- termined to be less than $1,000, even $0 or a
stall the equipment as it currently exists, negative amount, the minimum payment of
and shall not include the cost of code-re- $1,000 shall be provided.
quired betterments or upgrades that may Section 24.306 Discretionary Utility Reloca-
apply at the replacement site. As prescribed tion Payments. Section 24.306(c) describes the
in the regulation, the allowable in-place issues that the Agency and the utility facil-
value estimate (§ 24.301(g)(14)(i)) and moving ity owner must agree to in determining the
cost estimate (§ 24.301(g)(14)(ii)) must reflect amount of the relocation payment. To facili-
only the ‘‘as is’’ condition and installation of tate and aid in reaching such agreement, the
the item at the displacement site. The in- practices in the Federal Highway Adminis-
place value estimate may not include costs tration regulation, 23 CFR part 645, subpart
that reflect code or other requirements that A, Utility Relocations, Adjustments and Re-
were not in effect at the displacement site; imbursement, should be followed.
or include installation costs for machinery
SUBPART E—REPLACEMENT HOUSING
or equipment that is not operable or not in-
PAYMENTS
stalled at the displacement site.
Section 24.301(g)(17) Searching expenses. In Section 24.401 Replacement Housing Pay-
special cases where the displacing Agency ment for 180-day Homeowner-Occupants.
determines it to be reasonable and nec- Section 24.401(a)(2). An extension of eligi-
essary, certain additional categories of bility may be granted if some event beyond
searching costs may be considered for reim- the control of the displaced person such as
bursement. These include those costs in- acute or life threatening illness, bad weather
volved in investigating potential replace- preventing the completion of construction,
ment sites and the time of the business or physical modifications required for rea-
owner, based on salary or earnings, required sonable accommodation of a replacement
to apply for licenses or permits, zoning dwelling, or other like circumstances causes
224
a delay in occupying a decent, safe, and sani- Total buydown necessary to main-
tary replacement dwelling. tain payments at $458.22/month 9,250.13
Section 24.401(c)(2)(iii) Price differential. The
provision in § 24.401(c)(2)(iii) to use the cur- If the new mortgage actually obtained is
rent fair market value for residential use less than the computed amount for a new
does not mean the Agency must have the mortgage ($42,010.18), the buydown shall be
property appraised. Any reasonable method prorated accordingly. If the actual mortgage
for arriving at the fair market value may be obtained in our example were $35,000, the
used. buydown payment would be $7,706.57 ($35,000
Section 24.401(d) Increased mortgage interest divided by $42,010.18 = .8331; $9,250.13 multi-
costs. The provision in § 24.401(d) sets forth plied by .83 = $7,706.57).
the factors to be used in computing the pay- The Agency is obligated to inform the dis-
ment that will be required to reduce a per- placed person of the approximate amount of
son’s replacement mortgage (added to the this payment and that the displaced person
downpayment) to an amount which can be must obtain a mortgage of at least the same
amortized at the same monthly payment for amount as the old mortgage and for at least
principal and interest over the same period the same term in order to receive the full
of time as the remaining term on the dis- amount of this payment. The Agency must
placement mortgages. This payment is com- advise the displaced person of the interest
monly known as the ‘‘buydown.’’ rate and points used to calculate the pay-
The Agency must know the remaining ment.
principal balance, the interest rate, and Section 24.402 Replacement Housing Pay-
monthly principal and interest payments for ment for 90-day Occupants
the old mortgage as well as the interest rate, Section 24.402(b)(2) Low income calculation
points and term for the new mortgage to example. The Uniform Act requires that an
compute the increased mortgage interest eligible displaced person who rents a replace-
costs. If the combination of interest and ment dwelling is entitled to a rental assist-
points for the new mortgage exceeds the cur- ance payment calculated in accordance with
rent prevailing fixed interest rate and points § 24.402(b). One factor in this calculation is to
for conventional mortgages and there is no determine if a displaced person is ‘‘low in-
justification for the excessive rate, then the come,’’ as defined by the U.S. Department of
current prevailing fixed interest rate and Housing and Urban Development’s annual
points shall be used in the computations. survey of income limits for the Public Hous-
Justification may be the unavailability of ing and Section 8 Programs. To make such a
the current prevailing rate due to the determination, the Agency must: (1) Deter-
amount of the new mortgage, credit difficul- mine the total number of members in the
ties, or other similar reasons. household (including all adults and chil-
dren); (2) locate the appropriate table for in-
SAMPLE COMPUTATION come limits applicable to the Uniform Act
for the state in which the displaced residence
Old Mortgage: is located (found at: http://www.fhwa.dot.gov/
Remaining Principal Balance .......... $50,000 realestate/ua/ualic.htm); (3) from the list of
Monthly Payment (principal and in- local jurisdictions shown, identify the appro-
terest) ........................................... $458.22
priate county, Metropolitan Statistical Area
Interest rate (percent) ..................... 7
New Mortgage: (MSA)*, or Primary Metropolitan Statistical
Interest rate (percent) ..................... 10 Area (PMSA)* in which the displacement
Points .............................................. 3 property is located; and (4) locate the appro-
Term (years) .................................... 15 priate income limit in that jurisdiction for
the size of this displaced person/family. The
Remaining term of the old mortgage is de- income limit must then be compared to the
termined to be 174 months. Determining, or household income (§ 24.2(a)(15)) which is the
computing, the actual remaining term is gross annual income received by the dis-
more reliable than using the data supplied placed family, excluding income from any
by the mortgagee. However, if it is shorter, dependent children and full-time students
use the term of the new mortgage and com- under the age of 18. If the household income
pute the needed monthly payment. for the eligible displaced person/family is
Amount to be financed to maintain month- less than or equal to the income limit, the
ly payments of $458.22 at 10% = $42,010.18. family is considered ‘‘low income.’’ For ex-
ample:
Calculation: Tom and Mary Smith and their three chil-
Remaining Principal Balance .......... $50,000.00 dren are being displaced. The information
Minus Monthly Payment (principal obtained from the family and verified by the
and interest) ................................. ¥42,010.18 Agency is as follows:
Increased mortgage interest costs .. 7,989.82 Tom Smith, employed, earns $21,000/yr.
3 points on $42,010.18 ................... 1,260.31 Mary Smith, receives disability payments
of $6,000/yr.
225
Tom Smith Jr., 21, employed, earns $10,000/ Section 24.404(c) Methods of providing com-
yr. parable replacement housing. This Section em-
Mary Jane Smith, 17, student, has a paper phasizes the use of cost effective means of
route, earns $3,000/yr. (Income is not in- providing comparable replacement housing.
cluded because she is a dependent child and The term ‘‘reasonable cost’’ is used to high-
a full-time student under 18) light the fact that while innovative means to
Sammie Smith, 10, full-time student, no provide housing are encouraged, they should
income. be cost-effective. Section 24.404(c)(2) permits
Total family income for 5 persons is: the use of last resort housing, in special
$21,000 + $6,000 + $10,000 = $37,000 cases, which may involve variations from the
The displacement residence is located in usual methods of obtaining comparability.
the State of Maryland, Caroline County. The However, such variation should never result
low income limit for a 5 person household is: in a lowering of housing standards nor
$47,450. (2004 Income Limits) should it ever result in a lower quality of liv-
This household is considered ‘‘low in- ing style for the displaced person. The phys-
come.’’ ical characteristics of the comparable re-
* A complete list of counties and towns in- placement dwelling may be dissimilar to
cluded in the identified MSAs and PMSAs those of the displacement dwelling but they
can be found under the bulleted item ‘‘In- may never be inferior.
come Limit Area Definition’’ posted on the One example might be the use of a new mo-
FHWA’s Web site at: http://www.fhwa.dot.gov/ bile home to replace a very substandard con-
realestate/ua/ualic.htm. ventional dwelling in an area where com-
Section 24.402(c) Downpayment assistance. parable conventional dwellings are not avail-
The downpayment assistance provisions in able.
§ 24.402(c) limit such assistance to the Another example could be the use of a su-
amount of the computed rental assistance perior, but smaller, decent, safe and sanitary
payment for a tenant or an eligible home- dwelling to replace a large, old substandard
owner. It does, however, provide the latitude dwelling, only a portion of which is being
for Agency discretion in offering downpay- used as living quarters by the occupants and
ment assistance that exceeds the computed no other large comparable dwellings are
rental assistance payment, up to the $5,250 available in the area.
statutory maximum. This does not mean,
[70 FR 611, Jan. 4, 2005, as amended at 70 FR
however, that such Agency discretion may
22611, May 2, 2005]
be exercised in a selective or discriminatory
fashion. The displacing Agency should de-
velop a policy that affords equal treatment APPENDIX B TO PART 24—STATISTICAL
for displaced persons in like circumstances REPORT FORM
and this policy should be applied uniformly
throughout the Agency’s programs or This Appendix sets forth the statistical in-
projects. formation collected from Agencies in accord-
For the purpose of this section, should the ance with § 24.9(c).
amount of the rental assistance payment ex- General
ceed the purchase price of the replacement 1. Report coverage. This report covers all re-
dwelling, the payment would be limited to location and real property acquisition activi-
the cost of the dwelling. ties under a Federal or a federally-assisted
Section 24.404 Replacement Housing of Last project or program subject to the provisions
Resort. of the Uniform Act. If the exact numbers are
Section 24.404(b) Basic rights of persons to be not easily available, an Agency may provide
displaced. This paragraph affirms the right of what it believes to be a reasonable estimate.
a 180-day homeowner-occupant, who is eligi- 2. Report period. Activities shall be reported
ble for a replacement housing payment under on a Federal fiscal year basis, i.e., October 1
§ 24.401, to a reasonable opportunity to pur- through September 30.
chase a comparable replacement dwelling. 3. Where and when to submit report. Submit
However, it should be read in conjunction a copy of this report to the lead Agency as
with the definition of ‘‘owner of a dwelling’’ soon as possible after September 30, but NOT
at § 24.2(a)(20). The Agency is not required to LATER THAN NOVEMBER 15. Lead Agency
provide persons owning only a fractional in- address: Federal Highway Administration,
terest in the displacement dwelling a greater Office of Real Estate Services (HEPR), 1200
level of assistance to purchase a replacement New Jersey Avenue, SE., Washington, DC
dwelling than the Agency would be required 20590.
to provide such persons if they owned fee 4. How to report relocation payments. The
simple title to the displacement dwelling. If full amount of a relocation payment shall be
such assistance is not sufficient to buy a re- reported as if disbursed in the year during
placement dwelling, the Agency may provide which the claim was approved, regardless of
additional purchase assistance or rental as- whether the payment is to be paid in install-
sistance. ments.
226
5. How to report dollar amounts. Round off and individuals. A family shall be reported
all money entries in Parts of this section A, as ‘‘one’’ household, not by the number of
B and C to the nearest dollar. people in the family unit.
6. Regulatory references. The references in Line 6. Report the total amount paid for
Parts A, B, C and D of this section indicate residential moving expenses (actual expense
the subpart of the regulations pertaining to and fixed payment).
the requested information. Line 7. Report the total amount paid for
residential replacement housing payments
Part A. Real property acquisition under The including payments for replacement housing
Uniform Act of last resort provided pursuant to § 24.404 of
Line 1. Report all parcels acquired during this part.
the report year where title or possession was Line 8. Report the number of households in
vested in the Agency during the reporting Line 5 who were permanently displaced dur-
period. The parcel count reported should re- ing the fiscal year by project or program ac-
late to ownerships and not to the number of tivities and moved to their replacement
parcels of different property interests (such dwelling as part of last resort housing assist-
as fee, perpetual easement, temporary ease- ance.
ment, etc.) that may have been part of an ac- Line 9. Report the number of tenant house-
quisition from one owner. For example, an holds in Line 5 who were permanently dis-
acquisition from a property that includes a placed during the fiscal year by project or
fee simple parcel, a perpetual easement par- program activities, and who purchased and
cel, and a temporary easement parcel should moved to their replacement dwelling using a
be reported as 1 parcel not 3 parcels. (Include downpayment assistance payment under this
parcels acquired without Federal financial part.
assistance, if there was or will be Federal fi- Line 10. Report the total sum costs of resi-
nancial assistance in other phases of the dential relocation expenses and payments
project or program.) (excluding Agency administrative expenses)
Line 2. Report the number of parcels rein Lines 6 and 7.
ported on Line 1 that were acquired by con-
Part C. Nonresidential Relocation Under the
demnation. Include those parcels where com-
Uniform Act
pensation for the property was paid, depos-
ited in court, or otherwise made available to Line 11. Report the number of businesses,
a property owner pursuant to applicable law nonprofit organizations, and farms who were
in order to vest title or possession in the permanently displaced during the fiscal year
Agency through condemnation authority. by project or program activities and moved
Line 3. Report the number of parcels in to their replacement location. This includes
Line 1 acquired through administrative set- businesses, nonprofit organizations, and
tlement where the purchase price for the farms, that upon displacement, discontinued
property exceeded the amount offered as just operations.
compensation and efforts to negotiate an Line 12. Report the total amount paid for
agreement at that amount have failed. nonresidential moving expenses (actual ex-
Line 4. Report the total of the amounts pense and fixed payment.)
paid, deposited in court, or otherwise made Line 13. Report the total amount paid for
available to a property owner pursuant to nonresidential reestablishment expenses.
applicable law in order to vest title or pos- Line 14. Report the total sum costs of non-
session in the Agency in Line 1. residential relocation expenses and pay-
ments (excluding Agency administrative ex-
Part B. Residential Relocation Under the penses) in Lines 12 and 13.
Uniform Act
Part D. Relocation Appeals
Line 5. Report the number of households
who were permanently displaced during the Line 15. Report the total number of reloca-
fiscal year by project or program activities tion appeals filed during the fiscal year by
and moved to their replacement dwelling. aggrieved persons (residential and nonresi-
The term ‘‘households’’ includes all families dential).
227
228
ER04JA05.004</GPH>
[70 FR 611, Jan. 4, 2005, as amended at 73 FR 25.455 Textbooks and curricular material.
33329, June 12, 2008]
Subpart E—Discrimination on the Basis of
PART 25—NONDISCRIMINATION Sex in Employment in Education Pro-
grams or Activities Prohibited
ON THE BASIS OF SEX IN EDU-
CATION PROGRAMS OR ACTIVI- 25.500 Employment.
TIES RECEIVING FEDERAL FINAN- 25.505 Employment criteria.
25.510 Recruitment.
CIAL ASSISTANCE 25.515 Compensation.
25.520 Job classification and structure.
Subpart A—Introduction 25.525 Fringe benefits.
25.530 Marital or parental status.
Sec.
25.535 Effect of state or local law or other
25.100 Purpose and effective date.
requirements.
25.105 Definitions.
25.540 Advertising.
25.110 Remedial and affirmative action and 25.545 Pre-employment inquiries.
self-evaluation. 25.550 Sex as a bona fide occupational quali-
25.115 Assurance required. fication.
25.120 Transfers of property.
25.125 Effect of other requirements. Subpart F—Procedures
25.130 Effect of employment opportunities.
25.135 Designation of responsible employee 25.600 Notice of covered programs.
and adoption of grievance procedures. 25.605 Enforcement procedures.
25.140 Dissemination of policy.
AUTHORITY: 20 U.S.C. 1681, 1682, 1683, 1685,
Subpart B—Coverage 1686, 1687, 1688.
SOURCE: 65 FR 52865, 52894, Aug. 30, 2000, un-
25.200 Application. less otherwise noted.
25.205 Educational institutions and other
entities controlled by religious organiza-
tions. Subpart A—Introduction
25.210 Military and merchant marine edu-
cational institutions. § 25.100 Purpose and effective date.
25.215 Membership practices of certain orga- The purpose of these Title IX regula-
nizations.
tions is to effectuate Title IX of the
25.220 Admissions.
25.225 Educational institutions eligible to Education Amendments of 1972, as
submit transition plans. amended (except sections 904 and 906 of
25.230 Transition plans. those Amendments) (20 U.S.C. 1681,
25.235 Statutory amendments. 1682, 1683, 1685, 1686, 1687, 1688), which is
designed to eliminate (with certain ex-
Subpart C—Discrimination on the Basis of ceptions) discrimination on the basis of
Sex in Admission and Recruitment Pro- sex in any education program or activ-
hibited ity receiving Federal financial assist-
25.300 Admission. ance, whether or not such program or
25.305 Preference in admission. activity is offered or sponsored by an
25.310 Recruitment. educational institution as defined in
these Title IX regulations. The effec-
Subpart D—Discrimination on the Basis of tive date of these Title IX regulations
Sex in Education Programs or Activities shall be September 29, 2000.
Prohibited
§ 25.105 Definitions.
25.400 Education programs or activities.
25.405 Housing. As used in these Title IX regulations,
25.410 Comparable facilities. the term:
25.415 Access to course offerings. Administratively separate unit means a
25.420 Access to schools operated by LEAs. school, department, or college of an
25.425 Counseling and use of appraisal and educational institution (other than a
counseling materials. local educational agency) admission to
25.430 Financial assistance.
which is independent of admission to
25.435 Employment assistance to students.
25.440 Health and insurance benefits and any other component of such institu-
tion.
services.
25.445 Marital or parental status. Admission means selection for part-
25.450 Athletics. time, full-time, special, associate,
229
transfer, exchange, or any other enroll- use Federal property or any interest
ment, membership, or matriculation in therein without consideration.
or at an education program or activity (5) Any other contract, agreement, or
operated by a recipient. arrangement that has as one of its pur-
Applicant means one who submits an poses the provision of assistance to any
application, request, or plan required education program or activity, except
to be approved by an official of the a contract of insurance or guaranty.
Federal agency that awards Federal fi- Institution of graduate higher edu-
nancial assistance, or by a recipient, as cation means an institution that:
a condition to becoming a recipient. (1) Offers academic study beyond the
Designated agency official means Di- bachelor of arts or bachelor of science
rector, Departmental Office of Civil degree, whether or not leading to a cer-
Rights. tificate of any higher degree in the lib-
Educational institution means a local eral arts and sciences;
educational agency (LEA) as defined by (2) Awards any degree in a profes-
20 U.S.C. 8801(18), a preschool, a private sional field beyond the first profes-
elementary or secondary school, or an sional degree (regardless of whether
applicant or recipient that is an insti- the first professional degree in such
tution of graduate higher education, an field is awarded by an institution of
institution of undergraduate higher undergraduate higher education or pro-
education, an institution of profes- fessional education); or
sional education, or an institution of (3) Awards no degree and offers no
vocational education, as defined in this further academic study, but operates
section. ordinarily for the purpose of facili-
Federal financial assistance means any tating research by persons who have
of the following, when authorized or received the highest graduate degree in
extended under a law administered by any field of study.
the Federal agency that awards such Institution of professional education
assistance: means an institution (except any insti-
(1) A grant or loan of Federal finan- tution of undergraduate higher edu-
cial assistance, including funds made cation) that offers a program of aca-
available for: demic study that leads to a first profes-
(i) The acquisition, construction, ren- sional degree in a field for which there
ovation, restoration, or repair of a is a national specialized accrediting
building or facility or any portion agency recognized by the Secretary of
thereof; and Education.
(ii) Scholarships, loans, grants, Institution of undergraduate higher
wages, or other funds extended to any education means:
entity for payment to or on behalf of (1) An institution offering at least
students admitted to that entity, or two but less than four years of college-
extended directly to such students for level study beyond the high school
payment to that entity. level, leading to a diploma or an asso-
(2) A grant of Federal real or per- ciate degree, or wholly or principally
sonal property or any interest therein, creditable toward a baccalaureate de-
including surplus property, and the gree; or
proceeds of the sale or transfer of such (2) An institution offering academic
property, if the Federal share of the study leading to a baccalaureate de-
fair market value of the property is gree; or
not, upon such sale or transfer, prop- (3) An agency or body that certifies
erly accounted for to the Federal Gov- credentials or offers degrees, but that
ernment. may or may not offer academic study.
(3) Provision of the services of Fed- Institution of vocational education
eral personnel. means a school or institution (except
(4) Sale or lease of Federal property an institution of professional or grad-
or any interest therein at nominal con- uate or undergraduate higher edu-
sideration, or at consideration reduced cation) that has as its primary purpose
for the purpose of assisting the recipi- preparation of students to pursue a
ent or in recognition of public interest technical, skilled, or semiskilled occu-

to be served thereby, or permission to pation or trade, or to pursue study in a
230
technical field, whether or not the activity, a recipient may take affirma-
school or institution offers certificates, tive action consistent with law to over-
diplomas, or degrees and whether or come the effects of conditions that re-
not it offers full-time study. sulted in limited participation therein
Recipient means any State or polit- by persons of a particular sex. Nothing
ical subdivision thereof, or any instru- in these Title IX regulations shall be
mentality of a State or political sub- interpreted to alter any affirmative ac-
division thereof, any public or private tion obligations that a recipient may
agency, institution, or organization, or have under Executive Order 11246, 3
other entity, or any person, to whom CFR, 1964–1965 Comp., p. 339; as amend-
Federal financial assistance is ex- ed by Executive Order 11375, 3 CFR,
tended directly or through another re- 1966–1970 Comp., p. 684; as amended by
cipient and that operates an education Executive Order 11478, 3 CFR, 1966–1970
program or activity that receives such Comp., p. 803; as amended by Executive
assistance, including any subunit, suc- Order 12086, 3 CFR, 1978 Comp., p. 230;
cessor, assignee, or transferee thereof. as amended by Executive Order 12107, 3
Student means a person who has CFR, 1978 Comp., p. 264.
gained admission. (c) Self-evaluation. Each recipient
Title IX means Title IX of the Edu- education institution shall, within one
cation Amendments of 1972, Public Law year of September 29, 2000:
92–318, 86 Stat. 235, 373 (codified as (1) Evaluate, in terms of the require-
amended at 20 U.S.C. 1681–1688) (except ments of these Title IX regulations, its
sections 904 and 906 thereof), as amend- current policies and practices and the
ed by section 3 of Public Law 93–568, 88 effects thereof concerning admission of
Stat. 1855, by section 412 of the Edu- students, treatment of students, and
cation Amendments of 1976, Public Law employment of both academic and non-
94–482, 90 Stat. 2234, and by Section 3 of academic personnel working in connec-
Public Law 100–259, 102 Stat. 28, 28–29 tion with the recipient’s education pro-
(20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, gram or activity;
1688). (2) Modify any of these policies and
Title IX regulations means the provi- practices that do not or may not meet
sions set forth at §§ 25.100 through the requirements of these Title IX reg-
25.605. ulations; and
Transition plan means a plan subject (3) Take appropriate remedial steps
to the approval of the Secretary of to eliminate the effects of any dis-
Education pursuant to section 901(a)(2) crimination that resulted or may have
of the Education Amendments of 1972, resulted from adherence to these poli-
20 U.S.C. 1681(a)(2), under which an edu- cies and practices.
cational institution operates in mak- (d) Availability of self-evaluation and
ing the transition from being an edu- related materials. Recipients shall main-
cational institution that admits only tain on file for at least three years fol-
students of one sex to being one that lowing completion of the evaluation re-
admits students of both sexes without quired under paragraph (c) of this sec-
discrimination. tion, and shall provide to the des-
ignated agency official upon request, a
§ 25.110 Remedial and affirmative ac- description of any modifications made
tion and self-evaluation. pursuant to paragraph (c)(2) of this sec-
(a) Remedial action. If the designated tion and of any remedial steps taken
agency official finds that a recipient pursuant to paragraph (c)(3) of this sec-
has discriminated against persons on tion.
the basis of sex in an education pro-
gram or activity, such recipient shall § 25.115 Assurance required.
take such remedial action as the des- (a) General. Either at the application
ignated agency official deems nec- stage or the award stage, Federal agen-
essary to overcome the effects of such cies must ensure that applications for
discrimination. Federal financial assistance or awards
(b) Affirmative action. In the absence of Federal financial assistance contain,
of a finding of discrimination on the be accompanied by, or be covered by a

basis of sex in an education program or specifically identified assurance from
231
the applicant or recipient, satisfactory § 25.120 Transfers of property.

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

ferees, or successors in interest. assistance.
232
§ 25.130 Effect of employment opportu- the protections against discrimination

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

necessary to apprise such persons of policy.
233
Subpart B—Coverage the Young Women’s Christian Associa-

tion (YWCA), the Girl Scouts, the Boy
§ 25.200 Application. Scouts, and Camp Fire Girls.
Except as provided in §§ 25.205 (c) Voluntary youth service organiza-
through 25.235(a), these Title IX regulations. These Title IX regulations do not
tions apply to every recipient and to apply to the membership practices of a
each education program or activity op- voluntary youth service organization
erated by such recipient that receives that is exempt from taxation under
Federal financial assistance. section 501(a) of the Internal Revenue
Code of 1954, 26 U.S.C. 501(a), and the
§ 25.205 Educational institutions and membership of which has been tradi-
other entities controlled by reli-
gious organizations. tionally limited to members of one sex
and principally to persons of less than
(a) Exemption. These Title IX regula- nineteen years of age.
tions do not apply to any operation of
an educational institution or other en- § 25.220 Admissions.
tity that is controlled by a religious
organization to the extent that appli- (a) Admissions to educational insti-
cation of these Title IX regulations tutions prior to June 24, 1973, are not
would not be consistent with the reli- covered by these Title IX regulations.
gious tenets of such organization. (b) Administratively separate units. For
(b) Exemption claims. An educational the purposes only of this section,
institution or other entity that wishes §§ 25.225 and 25.230, and §§ 25.300 through
to claim the exemption set forth in 25.310, each administratively separate
paragraph (a) of this section shall do so unit shall be deemed to be an edu-
by submitting in writing to the des- cational institution.
ignated agency official a statement by (c) Application of §§ 25.300 through .310.
the highest-ranking official of the in- Except as provided in paragraphs (d)
stitution, identifying the provisions of and (e) of this section, §§ 25.300 through
these Title IX regulations that conflict 25.310 apply to each recipient. A recipi-
with a specific tenet of the religious or- ent to which §§ 25.300 through 25.310
ganization. apply shall not discriminate on the
basis of sex in admission or recruit-
§ 25.210 Military and merchant marine ment in violation of §§ 25.300 through
educational institutions.
25.310.
These Title IX regulations do not (d) Educational institutions. Except as
apply to an educational institution provided in paragraph (e) of this sec-
whose primary purpose is the training tion as to recipients that are edu-
of individuals for a military service of cational institutions, §§ 25.300 through
the United States or for the merchant 25.310 apply only to institutions of vo-
marine. cational education, professional edu-
§ 25.215 Membership practices of cer- cation, graduate higher education, and
tain organizations. public institutions of undergraduate
higher education.
(a) Social fraternities and sororities.
These Title IX regulations do not apply (e) Public institutions of undergraduate
to the membership practices of social higher education. §§ 25.300 through 25.310
fraternities and sororities that are ex- do not apply to any public institution
empt from taxation under section of undergraduate higher education that
501(a) of the Internal Revenue Code of traditionally and continually from its
1954, 26 U.S.C. 501(a), the active mem- establishment has had a policy of ad-
bership of which consists primarily of mitting students of only one sex.
students in attendance at institutions
of higher education. § 25.225 Educational institutions eligi-
ble to submit transition plans.
(b) YMCA, YWCA, Girl Scouts, Boy
Scouts, and Camp Fire Girls. These Title (a) Application. This section applies
IX regulations do not apply to the to each educational institution to
membership practices of the Young which §§ 25.300 through 25.310 apply

Men’s Christian Association (YMCA), that:
234
(1) Admitted students of only one sex class during the period covered by the
as regular students as of June 23, 1972; plan.
or (c) Nondiscrimination. No policy or
(2) Admitted students of only one sex practice of a recipient to which § 25.225
as regular students as of June 23, 1965, applies shall result in treatment of ap-
but thereafter admitted, as regular stu- plicants to or students of such recipi-
dents, students of the sex not admitted ent in violation of §§ 25.300 through
prior to June 23, 1965. 25.310 unless such treatment is neces-
(b) Provision for transition plans. An sitated by an obstacle identified in
educational institution to which this paragraph (b)(3) of this section and a
section applies shall not discriminate schedule for eliminating that obstacle
on the basis of sex in admission or re- has been provided as required by para-
cruitment in violation of §§ 25.300 graph (b)(4) of this section.
through 25.310. (d) Effects of past exclusion. To over-
come the effects of past exclusion of
§ 25.230 Transition plans. students on the basis of sex, each edu-
(a) Submission of plans. An institution cational institution to which § 25.225
to which § 25.225 applies and that is applies shall include in its transition
composed of more than one administra- plan, and shall implement, specific
tively separate unit may submit either steps designed to encourage individuals
a single transition plan applicable to of the previously excluded sex to apply
all such units, or a separate transition for admission to such institution. Such
plan applicable to each such unit. steps shall include instituting recruit-
(b) Content of plans. In order to be ap- ment programs that emphasize the in-
proved by the Secretary of Education, stitution’s commitment to enrolling
a transition plan shall: students of the sex previously ex-
(1) State the name, address, and Fed- cluded.
eral Interagency Committee on Edu-
cation Code of the educational institu- § 25.235 Statutory amendments.
tion submitting such plan, the admin- (a) This section, which applies to all
istratively separate units to which the provisions of these Title IX regula-
plan is applicable, and the name, ad- tions, addresses statutory amendments
dress, and telephone number of the per- to Title IX.
son to whom questions concerning the
(b) These Title IX regulations shall
plan may be addressed. The person who
not apply to or preclude:
submits the plan shall be the chief ad-
ministrator or president of the institu- (1) Any program or activity of the
tion, or another individual legally au- American Legion undertaken in con-
thorized to bind the institution to all nection with the organization or oper-
actions set forth in the plan. ation of any Boys State conference,
(2) State whether the educational in- Boys Nation conference, Girls State
stitution or administratively separate conference, or Girls Nation conference;
unit admits students of both sexes as (2) Any program or activity of a sec-
regular students and, if so, when it ondary school or educational institu-
began to do so. tion specifically for:
(3) Identify and describe with respect (i) The promotion of any Boys State
to the educational institution or ad- conference, Boys Nation conference,
ministratively separate unit any obsta- Girls State conference, or Girls Nation
cles to admitting students without dis- conference; or
crimination on the basis of sex. (ii) The selection of students to at-
(4) Describe in detail the steps nec- tend any such conference;
essary to eliminate as soon as prac- (3) Father-son or mother-daughter
ticable each obstacle so identified and activities at an educational institution
indicate the schedule for taking these or in an education program or activity,
steps and the individual directly re- but if such activities are provided for
sponsible for their implementation. students of one sex, opportunities for
(5) Include estimates of the number reasonably comparable activities shall
of students, by sex, expected to apply be provided to students of the other

for, be admitted to, and enter each sex;
235
(4) Any scholarship or other financial (2)(i) Program or activity does not in-
assistance awarded by an institution of clude any operation of an entity that is
higher education to an individual be- controlled by a religious organization
cause such individual has received such if the application of 20 U.S.C. 1681 to
award in a single-sex pageant based such operation would not be consistent
upon a combination of factors related with the religious tenets of such orga-
to the individual’s personal appear- nization.
ance, poise, and talent. The pageant, (ii) For example, all of the operations
however, must comply with other non- of a college, university, or other post-
discrimination provisions of Federal secondary institution, including but
law. not limited to traditional educational
(c) Program or activity or program operations, faculty and student hous-
means: ing, campus shuttle bus service, cam-
(1) All of the operations of any entity pus restaurants, the bookstore, and
described in paragraphs (c)(1)(i) other commercial activities are part of
through (iv) of this section, any part of a ‘‘program or activity’’ subject to
which is extended Federal financial as- these Title IX regulations if the col-
sistance: lege, university, or other institution
(i)(A) A department, agency, special receives Federal financial assistance.
purpose district, or other instrumen- (d)(1) Nothing in these Title IX regu-
tality of a State or of a local govern- lations shall be construed to require or
ment; or prohibit any person, or public or pri-
(B) The entity of such State or local vate entity, to provide or pay for any
government that distributes such as- benefit or service, including the use of
sistance and each such department or facilities, related to an abortion. Med-
agency (and each other State or local ical procedures, benefits, services, and
government entity) to which the as- the use of facilities, necessary to save
sistance is extended, in the case of as- the life of a pregnant woman or to ad-
sistance to a State or local govern- dress complications related to an abor-
ment; tion are not subject to this section.
(ii)(A) A college, university, or other (2) Nothing in this section shall be
postsecondary institution, or a public construed to permit a penalty to be im-
system of higher education; or posed on any person or individual be-
(B) A local educational agency (as de- cause such person or individual is seek-
fined in section 8801 of title 20), system ing or has received any benefit or serv-
of vocational education, or other ice related to a legal abortion. Accord-
school system; ingly, subject to paragraph (d)(1) of
(iii)(A) An entire corporation, part- this section, no person shall be ex-
nership, or other private organization, cluded from participation in, be denied
or an entire sole proprietorship— the benefits of, or be subjected to dis-
crimination under any academic, ex-
(1) If assistance is extended to such
tracurricular, research, occupational
corporation, partnership, private orga-
training, employment, or other edu-
nization, or sole proprietorship as a
cational program or activity operated
whole; or
by a recipient that receives Federal fi-
(2) Which is principally engaged in nancial assistance because such indi-
the business of providing education, vidual has sought or received, or is
health care, housing, social services, or seeking, a legal abortion, or any ben-
parks and recreation; or efit or service related to a legal abor-
(B) The entire plant or other com- tion.
parable, geographically separate facil-
ity to which Federal financial assist-
ance is extended, in the case of any Subpart C—Discrimination on the
other corporation, partnership, private Basis of Sex in Admission and
organization, or sole proprietorship; or Recruitment Prohibited
(iv) Any other entity that is estab-
lished by two or more of the entities § 25.300 Admission.
described in paragraphs (c)(1)(i), (ii), or (a) General. No person shall, on the

(iii) of this section. basis of sex, be denied admission, or be
236
subjected to discrimination in admis- A recipient may make pre-admission

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

er such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ or activity operated by a recipient that
237
receives Federal financial assistance. tration of such scholarships, fellow-

Sections 25.400 through 25.455 do not ships, or other awards that are re-
apply to actions of a recipient in con- stricted to members of one sex pro-
nection with admission of its students vides, or otherwise makes available,
to an education program or activity of reasonable opportunities for similar
a recipient to which §§ 25.300 through studies for members of the other sex.
25.310 do not apply, or an entity, not a Such opportunities may be derived
recipient, to which §§ 25.300 through from either domestic or foreign
25.310 would not apply if the entity sources.
were a recipient. (d) Aids, benefits or services not pro-
(b) Specific prohibitions. Except as provided by recipient. (1) This paragraph (d)
vided in §§ 25.400 through 25.455, in pro- applies to any recipient that requires
viding any aid, benefit, or service to a participation by any applicant, stu-
student, a recipient shall not, on the dent, or employee in any education
basis of sex: program or activity not operated whol-
(1) Treat one person differently from ly by such recipient, or that facilitates,
another in determining whether such permits, or considers such participa-
person satisfies any requirement or tion as part of or equivalent to an edu-
condition for the provision of such aid,
cation program or activity operated by
benefit, or service;
such recipient, including participation
(2) Provide different aid, benefits, or
in educational consortia and coopera-
services or provide aid, benefits, or
tive employment and student-teaching
services in a different manner;
assignments.
(3) Deny any person any such aid,
benefit, or service; (2) Such recipient:
(4) Subject any person to separate or (i) Shall develop and implement a
different rules of behavior, sanctions, procedure designed to assure itself that
or other treatment; the operator or sponsor of such other
(5) Apply any rule concerning the education program or activity takes no
domicile or residence of a student or action affecting any applicant, student,
applicant, including eligibility for in- or employee of such recipient that
state fees and tuition; these Title IX regulations would pro-
(6) Aid or perpetuate discrimination hibit such recipient from taking; and
against any person by providing sig- (ii) Shall not facilitate, require, per-
nificant assistance to any agency, or- mit, or consider such participation if
ganization, or person that discrimi- such action occurs.
nates on the basis of sex in providing
any aid, benefit, or service to students § 25.405 Housing.
or employees; (a) Generally. A recipient shall not,
(7) Otherwise limit any person in the on the basis of sex, apply different
enjoyment of any right, privilege, ad- rules or regulations, impose different
vantage, or opportunity. fees or requirements, or offer different
(c) Assistance administered by a recipi- services or benefits related to housing,
ent educational institution to study at a except as provided in this section (in-
foreign institution. A recipient edu- cluding housing provided only to mar-
cational institution may administer or
ried students).
assist in the administration of scholar-
(b) Housing provided by recipient. (1) A
ships, fellowships, or other awards es-
tablished by foreign or domestic wills, recipient may provide separate housing
trusts, or similar legal instruments, or on the basis of sex.
by acts of foreign governments and re- (2) Housing provided by a recipient to
stricted to members of one sex, that students of one sex, when compared to
are designed to provide opportunities that provided to students of the other
to study abroad, and that are awarded sex, shall be as a whole:
to students who are already matricu- (i) Proportionate in quantity to the
lating at or who are graduates of the number of students of that sex apply-
recipient institution; Provided, that a ing for such housing; and
recipient educational institution that (ii) Comparable in quality and cost to

administers or assists in the adminis- the student.
238
(c) Other housing. (1) A recipient shall (2) This section does not prohibit
not, on the basis of sex, administer dif- grouping of students in physical edu-
ferent policies or practices concerning cation classes and activities by ability
occupancy by its students of housing as assessed by objective standards of
other than that provided by such re- individual performance developed and
cipient. applied without regard to sex.
(2)(i) A recipient which, through so- (3) This section does not prohibit sep-
licitation, listing, approval of housing, aration of students by sex within phys-
or otherwise, assists any agency, orga- ical education classes or activities dur-
nization, or person in making housing ing participation in wrestling, boxing,
available to any of its students, shall rugby, ice hockey, football, basketball,
take such reasonable action as may be and other sports the purpose or major
necessary to assure itself that such activity of which involves bodily con-
housing as is provided to students of tact.
one sex, when compared to that pro- (4) Where use of a single standard of
vided to students of the other sex, is as measuring skill or progress in a phys-
a whole: ical education class has an adverse ef-
(A) Proportionate in quantity; and fect on members of one sex, the recipi-
(B) Comparable in quality and cost to ent shall use appropriate standards
the student. that do not have such effect.
(ii) A recipient may render such as- (5) Portions of classes in elementary
sistance to any agency, organization, and secondary schools, or portions of
or person that provides all or part of education programs or activities, that
such housing to students of only one deal exclusively with human sexuality
sex. may be conducted in separate sessions
for boys and girls.
§ 25.410 Comparable facilities. (6) Recipients may make require-
A recipient may provide separate toi- ments based on vocal range or quality
let, locker room, and shower facilities that may result in a chorus or choruses
on the basis of sex, but such facilities of one or predominantly one sex.
provided for students of one sex shall
be comparable to such facilities pro- § 25.420 Access to schools operated by
LEAs.
vided for students of the other sex.
A recipient that is a local edu-
§ 25.415 Access to course offerings. cational agency shall not, on the basis
(a) A recipient shall not provide any of sex, exclude any person from admis-
course or otherwise carry out any of its sion to:
education program or activity sepa- (a) Any institution of vocational edu-
rately on the basis of sex, or require or cation operated by such recipient; or
refuse participation therein by any of (b) Any other school or educational
its students on such basis, including unit operated by such recipient, unless
health, physical education, industrial, such recipient otherwise makes avail-
business, vocational, technical, home able to such person, pursuant to the
economics, music, and adult education same policies and criteria of admission,
courses. courses, services, and facilities com-
(b)(1) With respect to classes and ac- parable to each course, service, and fa-
tivities in physical education at the el- cility offered in or through such
ementary school level, the recipient schools.
shall comply fully with this section as
expeditiously as possible but in no § 25.425 Counseling and use of ap-
praisal and counseling materials.
event later than one year from Sep-
tember 29, 2000. With respect to phys- (a) Counseling. A recipient shall not
ical education classes and activities at discriminate against any person on the
the secondary and post-secondary lev- basis of sex in the counseling or guid-
els, the recipient shall comply fully ance of students or applicants for ad-
with this section as expeditiously as mission.
possible but in no event later than (b) Use of appraisal and counseling ma-
three years from September 29, 2000. terials. A recipient that uses testing or
239
other materials for appraising or coun- persons of one sex differently from per-
seling students shall not use different sons of the other sex with regard to
materials for students on the basis of marital or parental status.
their sex or use materials that permit (b) Financial aid established by certain
or require different treatment of stu- legal instruments. (1) A recipient may
dents on such basis unless such dif- administer or assist in the administra-
ferent materials cover the same occu- tion of scholarships, fellowships, or
pations and interest areas and the use other forms of financial assistance es-
of such different materials is shown to tablished pursuant to domestic or for-
be essential to eliminate sex bias. Re- eign wills, trusts, bequests, or similar
cipients shall develop and use internal legal instruments or by acts of a for-
procedures for ensuring that such ma- eign government that require that
terials do not discriminate on the basis awards be made to members of a par-
of sex. Where the use of a counseling ticular sex specified therein; Provided,
test or other instrument results in a that the overall effect of the award of
substantially disproportionate number such sex-restricted scholarships, fel-
of members of one sex in any particular lowships, and other forms of financial
course of study or classification, the assistance does not discriminate on the
recipient shall take such action as is basis of sex.
necessary to assure itself that such dis- (2) To ensure nondiscriminatory
proportion is not the result of discrimi- awards of assistance as required in
nation in the instrument or its applica- paragraph (b)(1) of this section, recipi-
tion. ents shall develop and use procedures
(c) Disproportion in classes. Where a under which:
recipient finds that a particular class (i) Students are selected for award of
contains a substantially dispropor- financial assistance on the basis of
tionate number of individuals of one nondiscriminatory criteria and not on
sex, the recipient shall take such ac- the basis of availability of funds re-
tion as is necessary to assure itself stricted to members of a particular sex;
that such disproportion is not the re- (ii) An appropriate sex-restricted
sult of discrimination on the basis of scholarship, fellowship, or other form
sex in counseling or appraisal mate- of financial assistance is allocated to
rials or by counselors. each student selected under paragraph
(b)(2)(i) of this section; and
§ 25.430 Financial assistance. (iii) No student is denied the award
(a) General. Except as provided in for which he or she was selected under
paragraphs (b) and (c) of this section, paragraph (b)(2)(i) of this section be-
in providing financial assistance to any cause of the absence of a scholarship,
of its students, a recipient shall not: fellowship, or other form of financial
(1) On the basis of sex, provide dif- assistance designated for a member of
ferent amounts or types of such assist- that student’s sex.
ance, limit eligibility for such assist- (c) Athletic scholarships. (1) To the ex-
ance that is of any particular type or tent that a recipient awards athletic
source, apply different criteria, or oth- scholarships or grants-in-aid, it must
erwise discriminate; provide reasonable opportunities for
(2) Through solicitation, listing, ap- such awards for members of each sex in
proval, provision of facilities, or other proportion to the number of students
services, assist any foundation, trust, of each sex participating in inter-
agency, organization, or person that scholastic or intercollegiate athletics.
provides assistance to any of such re- (2) A recipient may provide separate
cipient’s students in a manner that dis- athletic scholarships or grants-in-aid
criminates on the basis of sex; or for members of each sex as part of sep-
(3) Apply any rule or assist in appli- arate athletic teams for members of
cation of any rule concerning eligi- each sex to the extent consistent with
bility for such assistance that treats this paragraph (c) and § 25.450.
240
§ 25.435 Employment assistance to stu- physician that the student is phys-

dents. ically and emotionally able to continue
(a) Assistance by recipient in making participation as long as such a certifi-
available outside employment. A recipi- cation is required of all students for
ent that assists any agency, organiza- other physical or emotional conditions
tion, or person in making employment requiring the attention of a physician.
available to any of its students: (3) A recipient that operates a por-
(1) Shall assure itself that such em- tion of its education program or activ-
ployment is made available without ity separately for pregnant students,
discrimination on the basis of sex; and admittance to which is completely vol-
(2) Shall not render such services to untary on the part of the student as
any agency, organization, or person provided in paragraph (b)(1) of this sec-
that discriminates on the basis of sex tion, shall ensure that the separate
in its employment practices. portion is comparable to that offered
(b) Employment of students by recipi- to non-pregnant students.
ents. A recipient that employs any of (4) Subject to § 25.235(d), a recipient
its students shall not do so in a manner shall treat pregnancy, childbirth, false
that violates §§ 25.500 through 25.550. pregnancy, termination of pregnancy
and recovery therefrom in the same
§ 25.440 Health and insurance benefits manner and under the same policies as
and services. any other temporary disability with re-
Subject to § 25.235(d), in providing a spect to any medical or hospital ben-
medical, hospital, accident, or life in- efit, service, plan, or policy that such
surance benefit, service, policy, or plan recipient administers, operates, offers,
to any of its students, a recipient shall or participates in with respect to stu-
not discriminate on the basis of sex, or dents admitted to the recipient’s edu-
provide such benefit, service, policy, or cational program or activity.
plan in a manner that would violate (5) In the case of a recipient that does
§§ 25.500 through 25.550 if it were pro- not maintain a leave policy for its stu-
vided to employees of the recipient. dents, or in the case of a student who
This section shall not prohibit a recipi- does not otherwise qualify for leave
ent from providing any benefit or serv- under such a policy, a recipient shall
ice that may be used by a different pro- treat pregnancy, childbirth, false preg-
portion of students of one sex than of nancy, termination of pregnancy, and
the other, including family planning recovery therefrom as a justification
services. However, any recipient that for a leave of absence for as long a pe-
provides full coverage health service riod of time as is deemed medically
shall provide gynecological care. necessary by the student’s physician,
at the conclusion of which the student
§ 25.445 Marital or parental status. shall be reinstated to the status that
(a) Status generally. A recipient shall she held when the leave began.
not apply any rule concerning a stu-
dent’s actual or potential parental, § 25.450 Athletics.
family, or marital status that treats (a) General. No person shall, on the
students differently on the basis of sex. basis of sex, be excluded from partici-
(b) Pregnancy and related conditions. pation in, be denied the benefits of, be
(1) A recipient shall not discriminate treated differently from another per-
against any student, or exclude any son, or otherwise be discriminated
student from its education program or against in any interscholastic, inter-
activity, including any class or extra- collegiate, club, or intramural ath-
curricular activity, on the basis of such letics offered by a recipient, and no re-
student’s pregnancy, childbirth, false cipient shall provide any such athletics
pregnancy, termination of pregnancy, separately on such basis.
or recovery therefrom, unless the stu- (b) Separate teams. Notwithstanding
dent requests voluntarily to partici- the requirements of paragraph (a) of
pate in a separate portion of the pro- this section, a recipient may operate or
gram or activity of the recipient. sponsor separate teams for members of
(2) A recipient may require such a each sex where selection for such
student to obtain the certification of a teams is based upon competitive skill
241
or the activity involved is a contact (d) Adjustment period. A recipient that

sport. However, where a recipient oper- operates or sponsors interscholastic,
ates or sponsors a team in a particular intercollegiate, club, or intramural
sport for members of one sex but oper- athletics at the elementary school
ates or sponsors no such team for mem- level shall comply fully with this sec-
bers of the other sex, and athletic option as expeditiously as possible but in
portunities for members of that sex no event later than one year from Sep-
have previously been limited, members tember 29, 2000. A recipient that oper-
of the excluded sex must be allowed to ates or sponsors interscholastic, inter-
try out for the team offered unless the collegiate, club, or intramural ath-
sport involved is a contact sport. For letics at the secondary or postsec-
the purposes of these Title IX regula- ondary school level shall comply fully
tions, contact sports include boxing, with this section as expeditiously as
wrestling, rugby, ice hockey, football, possible but in no event later than
basketball, and other sports the pur- three years from September 29, 2000.
pose or major activity of which in-
volves bodily contact. § 25.455 Textbooks and curricular ma-
(c) Equal opportunity. (1) A recipient terial.
that operates or sponsors inter- Nothing in these Title IX regulations
scholastic, intercollegiate, club, or in- shall be interpreted as requiring or pro-
tramural athletics shall provide equal
hibiting or abridging in any way the
athletic opportunity for members of
use of particular textbooks or cur-
both sexes. In determining whether
ricular materials.
equal opportunities are available, the
designated agency official will con-
sider, among other factors: Subpart E—Discrimination on the
(i) Whether the selection of sports Basis of Sex in Employment in
and levels of competition effectively Education Programs or Activi-
accommodate the interests and abilities Prohibited
ties of members of both sexes;
(ii) The provision of equipment and § 25.500 Employment.
supplies; (a) General. (1) No person shall, on
(iii) Scheduling of games and prac- the basis of sex, be excluded from par-
tice time; ticipation in, be denied the benefits of,
(iv) Travel and per diem allowance; or be subjected to discrimination in
(v) Opportunity to receive coaching employment, or recruitment, consider-
and academic tutoring; ation, or selection therefor, whether
(vi) Assignment and compensation of full-time or part-time, under any edu-
coaches and tutors; cation program or activity operated by
(vii) Provision of locker rooms, prac- a recipient that receives Federal finan-
tice, and competitive facilities; cial assistance.
(viii) Provision of medical and train- (2) A recipient shall make all em-
ing facilities and services; ployment decisions in any education
(ix) Provision of housing and dining program or activity operated by such
facilities and services; recipient in a nondiscriminatory man-
(x) Publicity. ner and shall not limit, segregate, or
(2) For purposes of paragraph (c)(1) of classify applicants or employees in any
this section, unequal aggregate expend- way that could adversely affect any ap-
itures for members of each sex or un- plicant’s or employee’s employment
equal expenditures for male and female opportunities or status because of sex.
teams if a recipient operates or spon- (3) A recipient shall not enter into
sors separate teams will not constitute any contractual or other relationship
noncompliance with this section, but which directly or indirectly has the ef-
the designated agency official may fect of subjecting employees or stu-
consider the failure to provide nec- dents to discrimination prohibited by
essary funds for teams for one sex in §§ 25.500 through 25.550, including rela-
assessing equality of opportunity for tionships with employment and refer-

members of each sex. ral agencies, with labor unions, and
242
with organizations providing or admin- (a) Use of such test or other criterion
istering fringe benefits to employees of is shown to predict validly successful
the recipient. performance in the position in ques-
(4) A recipient shall not grant pref- tion; and
erences to applicants for employment (b) Alternative tests or criteria for
on the basis of attendance at any edu- such purpose, which do not have such
cational institution or entity that ad- disproportionately adverse effect, are
mits as students only or predominantly shown to be unavailable.
members of one sex, if the giving of
such preferences has the effect of dis- § 25.510 Recruitment.
criminating on the basis of sex in vio- (a) Nondiscriminatory recruitment and
lation of these Title IX regulations. hiring. A recipient shall not discrimi-
(b) Application. The provisions of nate on the basis of sex in the recruit-
§§ 25.500 through 25.550 apply to: ment and hiring of employees. Where a
(1) Recruitment, advertising, and the recipient has been found to be pres-
process of application for employment; ently discriminating on the basis of sex
(2) Hiring, upgrading, promotion, in the recruitment or hiring of employ-
consideration for and award of tenure, ees, or has been found to have so dis-
demotion, transfer, layoff, termi- criminated in the past, the recipient
nation, application of nepotism poli- shall recruit members of the sex so dis-
cies, right of return from layoff, and criminated against so as to overcome
rehiring; the effects of such past or present dis-
(3) Rates of pay or any other form of crimination.
compensation, and changes in com- (b) Recruitment patterns. A recipient
pensation; shall not recruit primarily or exclu-
(4) Job assignments, classifications, sively at entities that furnish as appli-
and structure, including position de- cants only or predominantly members
scriptions, lines of progression, and se- of one sex if such actions have the ef-
niority lists; fect of discriminating on the basis of
(5) The terms of any collective bar- sex in violation of §§ 25.500 through
gaining agreement; 25.550.
(6) Granting and return from leaves
of absence, leave for pregnancy, child- § 25.515 Compensation.
birth, false pregnancy, termination of A recipient shall not make or enforce
pregnancy, leave for persons of either any policy or practice that, on the
sex to care for children or dependents, basis of sex:
or any other leave; (a) Makes distinctions in rates of pay
(7) Fringe benefits available by vir- or other compensation;
tue of employment, whether or not ad- (b) Results in the payment of wages
ministered by the recipient; to employees of one sex at a rate less
(8) Selection and financial support than that paid to employees of the op-
for training, including apprenticeship, posite sex for equal work on jobs the
professional meetings, conferences, and performance of which requires equal
other related activities, selection for skill, effort, and responsibility, and
tuition assistance, selection for that are performed under similar work-
sabbaticals and leaves of absence to ing conditions.
pursue training;
(9) Employer-sponsored activities, in- § 25.520 Job classification and struc-
cluding social or recreational pro- ture.
grams; and A recipient shall not:
(10) Any other term, condition, or (a) Classify a job as being for males
privilege of employment. or for females;
(b) Maintain or establish separate
§ 25.505 Employment criteria. lines of progression, seniority lists, ca-
A recipient shall not administer or reer ladders, or tenure systems based
operate any test or other criterion for on sex; or
any employment opportunity that has (c) Maintain or establish separate
a disproportionately adverse effect on lines of progression, seniority systems,

persons on the basis of sex unless: career ladders, or tenure systems for
243
similar jobs, position descriptions, or (c) Pregnancy as a temporary disability.

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

therefrom. tion for the particular job in question.
244
§ 25.545 Pre-employment inquiries. Title VI of the Civil Rights Act of 1964

(42 U.S.C. 2000d) (‘‘Title VI’’) are hereby
(a) Marital status. A recipient shall
adopted and applied to these Title IX
not make pre-employment inquiry as
regulations. These procedures may be
to the marital status of an applicant
found at 49 CFR part 21.
for employment, including whether
such applicant is ‘‘Miss’’ or ‘‘Mrs.’’ [65 FR 52895, Aug. 30, 2000]
(b) Sex. A recipient may make pre-
employment inquiry as to the sex of an PART 26—PARTICIPATION BY DIS-
applicant for employment, but only if ADVANTAGED BUSINESS ENTER-
such inquiry is made equally of such
applicants of both sexes and if the re-
PRISES IN DEPARTMENT OF
sults of such inquiry are not used in TRANSPORTATION FINANCIAL
connection with discrimination prohib- ASSISTANCE PROGRAMS
ited by these Title IX regulations.
Subpart A—General
§ 25.550 Sex as a bona fide occupa-
tional qualification. Sec.
26.1 What are the objectives of this part?
A recipient may take action other- 26.3 To whom does this part apply?
wise prohibited by §§ 25.500 through 26.5 What do the terms used in this part
25.550 provided it is shown that sex is a mean?
bona fide occupational qualification for 26.7 What discriminatory actions are forbid-
that action, such that consideration of den?
sex with regard to such action is essen- 26.9 How does the Department issue guid-
ance and interpretations under this part?
tial to successful operation of the em-
26.11 What records do recipients keep and
ployment function concerned. A recipi- report?
ent shall not take action pursuant to 26.13 What assurances must recipients and
this section that is based upon alleged contractors make?
comparative employment characteris- 26.15 How can recipients apply for exemp-
tics or stereotyped characterizations of tions or waivers?
one or the other sex, or upon pref-
erence based on sex of the recipient, Subpart B—Administrative Requirements
employees, students, or other persons, for DBE Programs for Federally-Assisted
but nothing contained in this section Contracting
shall prevent a recipient from consid- 26.21 Who must have a DBE program?
ering an employee’s sex in relation to 26.23 What is the requirement for a policy
employment in a locker room or toilet statement?
facility used only by members of one 26.25 What is the requirement for a liaison
sex. officer?
26.27 What efforts must recipients make
concerning DBE financial institutions?
Subpart F—Procedures 26.29 What prompt payment mechanisms
must recipients have?
§ 25.600 Notice of covered programs.
26.31 What information must you include in
Within 60 days of September 29, 2000, your DBE directory?
each Federal agency that awards Fed- 26.33 What steps must a recipient take to
eral financial assistance shall publish address overconcentration of DBEs in
in the FEDERAL REGISTER a notice of certain types of work?
26.35 What role do business development
the programs covered by these Title IX
and mentor-protégé programs have in the
regulations. Each such Federal agency DBE program?
shall periodically republish the notice 26.37 What are a recipient’s responsibilities
of covered programs to reflect changes for monitoring the performance of other
in covered programs. Copies of this no- program participants?
tice also shall be made available upon 26.39 Fostering small business participa-
request to the Federal agency’s office tion.
that enforces Title IX.
Subpart C—Goals, Good Faith Efforts, and
§ 25.605 Enforcement procedures. Counting
The investigative, compliance, and 26.41 What is the role of the statutory 10
enforcement procedural provisions of percent goal in this program?
245
26.43 Can recipients use set-asides or quotas APPENDIX B TO PART 26— UNIFORM REPORT OF
as part of this program? DBE AWARDS OR COMMITMENTS AND PAY-
26.45 How do recipients set overall goals? MENTS FORM
26.47 Can recipients be penalized for failing APPENDIX C TO PART 26—DBE BUSINESS DE-
to meet overall goals? VELOPMENT PROGRAM GUIDELINES
26.49 How are overall goals established for APPENDIX D TO PART 26—MENTOR-PROTÉGÉ
transit vehicle manufacturers? PROGRAM GUIDELINES
26.51 What means do recipients use to meet APPENDIX E TO PART 26—INDIVIDUAL DETER-
overall goals? MINATIONS OF SOCIAL AND ECONOMIC DIS-
26.53 What are the good faith efforts proce- ADVANTAGE
dures recipients follow in situations APPENDIX F TO PART 26—UNIFORM CERTIFI-
where there are contract goals? CATION APPLICATION FORM
26.55 How is DBE participation counted to- APPENDIX G TO PART 26—PERSONAL NET
ward goals? WORTH STATEMENT
Subpart D—Certification Standards AUTHORITY: 23 U.S.C. 304 and 324; 42 U.S.C.

2000d, et seq. ; 49 U.S.C. 47107, 47113, 47123; Sec.
26.61 How are burdens of proof allocated in 1101(b), Pub. L. 105–178, 112 Stat. 107, 113.
the certification process?
26.63 What rules govern group membership SOURCE: 64 FR 5126, Feb. 2, 1999, unless oth-
determinations? erwise noted.
26.65 What rules govern business size deter-
minations? Subpart A—General
26.67 What rules determine social and eco-
nomic disadvantage? § 26.1 What are the objectives of this
26.69 What rules govern determinations of part?
ownership?
26.71 What rules govern determinations con- This part seeks to achieve several ob-
cerning control? jectives:
26.73 What are other rules affecting certifi- (a) To ensure nondiscrimination in
cation? the award and administration of DOT-
assisted contracts in the Department’s
Subpart E—Certification Procedures highway, transit, and airport financial
26.81 What are the requirements for Unified assistance programs;
Certification Programs? (b) To create a level playing field on
26.83 What procedures do recipients follow which DBEs can compete fairly for
in making certification decisions? DOT-assisted contracts;
26.85 Interstate certification.
(c) To ensure that the Department’s
26.86 What rules govern recipients’ denials
of initial requests for certification? DBE program is narrowly tailored in
26.87 What procedures does a recipient use accordance with applicable law;
to remove a DBE’s eligibility? (d) To ensure that only firms that
26.88 Summary suspension of certification. fully meet this part’s eligibility stand-
26.89 What is the process for certification ards are permitted to participate as
appeals to the Department of Transpor- DBEs;
tation?
(e) To help remove barriers to the
26.91 What actions do recipients take fol-
lowing DOT certification appeal deci-
participation of DBEs in DOT-assisted
sions? contracts;
(f) To promote the use of DBEs in all
Subpart F—Compliance and Enforcement types of federally-assisted contracts
and procurement activities conducted
26.101 What compliance procedures apply to
by recipients.
recipients?
26.103 What enforcement actions apply in (g) To assist the development of
FHWA and FTA programs? firms that can compete successfully in
26.105 What enforcement actions apply in the marketplace outside the DBE pro-
FAA programs? gram; and
26.107 What enforcement actions apply to (h) To provide appropriate flexibility
firms participating in the DBE program? to recipients of Federal financial as-
26.109 What are the rules governing infor- sistance in establishing and providing
mation, confidentiality, cooperation, and
intimidation or retaliation?
opportunities for DBEs.
APPENDIX A TO PART 26—GUIDANCE CON- [64 FR 5126, Feb. 2, 1999, as amended at 79 FR

CERNING GOOD FAITH EFFORTS 59592, Oct. 2, 2014]
246
§ 26.3 To whom does this part apply? each other when, either directly or in-
directly:
(a) If you are a recipient of any of the
following types of funds, this part ap- (i) One concern controls or has the
plies to you: power to control the other; or
(1) Federal-aid highway funds author- (ii) A third party or parties controls
ized under Titles I (other than Part B) or has the power to control both; or
and V of the Intermodal Surface Trans- (iii) An identity of interest between
portation Efficiency Act of 1991 or among parties exists such that af-
(ISTEA), Pub. L. 102–240, 105 Stat. 1914, filiation may be found.
or Titles I, III, and V of the Transpor- (2) In determining whether affiliation
tation Equity Act for the 21st Century exists, it is necessary to consider all
(TEA–21), Pub. L. 105–178, 112 Stat. 107. appropriate factors, including common
Titles I, III, and V of the Safe, Ac- ownership, common management, and
countable, Flexible, Efficient Trans- contractual relationships. Affiliates
portation Equity Act: A Legacy for must be considered together in deter-
Users (SAFETEA–LU), Pub. L. 109–59, mining whether a concern meets small
119 Stat. 1144; and Divisions A and B of business size criteria and the statutory
the Moving Ahead for Progress in the cap on the participation of firms in the
21st Century Act (MAP–21), Pub. L. 112– DBE program.
141, 126 Stat. 405. Alaska Native means a citizen of the
(2) Federal transit funds authorized United States who is a person of one-
by Titles I, III, V and VI of ISTEA, fourth degree or more Alaskan Indian
Pub. L. 102–240 or by Federal transit (including Tsimshian Indians not en-
laws in Title 49, U.S. Code, or Titles I, rolled in the Metlaktla Indian Commu-
III, and V of the TEA–21, Pub. L. 105– nity), Eskimo, or Aleut blood, or a
178. Titles I, III, and V of the Safe, Ac- combination of those bloodlines. The
countable, Flexible, Efficient Trans- term includes, in the absence of proof
portation Equity Act: A Legacy for of a minimum blood quantum, any cit-
Users (SAFETEA–LU), Pub. L. 109–59, izen whom a Native village or Native
119 Stat. 1144; and Divisions A and B of group regards as an Alaska Native if
the Moving Ahead for Progress in the their father or mother is regarded as
21st Century Act (MAP–21), Pub. L. 112– an Alaska Native.
141, 126 Stat. 405. Alaska Native Corporation (ANC)
(3) Airport funds authorized by 49 means any Regional Corporation, Vil-
U.S.C. 47101, et seq. lage Corporation, Urban Corporation,
(b) [Reserved] or Group Corporation organized under
(c) If you are letting a contract, and the laws of the State of Alaska in ac-
that contract is to be performed en- cordance with the Alaska Native
tirely outside the United States, its Claims Settlement Act, as amended (43
territories and possessions, Puerto U.S.C. 1601, et seq.).
Rico, Guam, or the Northern Marianas Assets mean all the property of a per-
Islands, this part does not apply to the son available for paying debts or for
contract. distribution, including one’s respective
(d) If you are letting a contract in share of jointly held assets. This in-
which DOT financial assistance does cludes, but is not limited to, cash on
not participate, this part does not hand and in banks, savings accounts,
apply to the contract. IRA or other retirement accounts, ac-
[64 FR 5126, Feb. 2, 1999, as amended at 79 FR counts receivable, life insurance,
59592, Oct. 2, 2014] stocks and bonds, real estate, and per-
sonal property.
§ 26.5 What do the terms used in this Business, business concern or business
part mean? enterprise means an entity organized
Affiliation has the same meaning the for profit with a place of business lo-
term has in the Small Business Admin- cated in the United States, and which
istration (SBA) regulations, 13 CFR operates primarily within the United
part 121. States or which makes a significant
(1) Except as otherwise provided in 13 contribution to the United States econ-

CFR part 121, concerns are affiliates of omy through payment of taxes or use
247
of American products, materials, or DOT-assisted contract means any con-

labor. tract between a recipient and a con-
Compliance means that a recipient tractor (at any tier) funded in whole or
has correctly implemented the require- in part with DOT financial assistance,
ments of this part. including letters of credit or loan guar-
Contingent Liability means a liability antees, except a contract solely for the
that depends on the occurrence of a fu- purchase of land.
ture and uncertain event. This in- Good faith efforts means efforts to
cludes, but is not limited to, guaranty achieve a DBE goal or other require-
for debts owed by the applicant con- ment of this part which, by their scope,
cern, legal claims and judgments, and intensity, and appropriateness to the
provisions for federal income tax. objective, can reasonably be expected
Contract means a legally binding re- to fulfill the program requirement.
lationship obligating a seller to furnish Home state means the state in which
supplies or services (including, but not a DBE firm or applicant for DBE cer-
limited to, construction and profes- tification maintains its principal place
sional services) and the buyer to pay of business.
for them. For purposes of this part, a Immediate family member means fa-
lease is considered to be a contract. ther, mother, husband, wife, son,
Contractor means one who partici- daughter, brother, sister, grandfather,
pates, through a contract or sub- grandmother, father-in-law, mother-in-
contract (at any tier), in a DOT-as- law, sister-in-law, brother-in-law, and
sisted highway, transit, or airport pro- domestic partner and civil unions rec-
gram. ognized under State law.
Days mean calendar days. In com- Indian tribe means any Indian tribe,
puting any period of time described in band, nation, or other organized group
this part, the day from which the pe- or community of Indians, including
riod begins to run is not counted, and any ANC, which is recognized as eligi-
when the last day of the period is a ble for the special programs and serv-
Saturday, Sunday, or Federal holiday, ices provided by the United States to
the period extends to the next day that Indians because of their status as Indi-
is not a Saturday, Sunday, or Federal ans, or is recognized as such by the
holiday. Similarly, in circumstances State in which the tribe, band, nation,
where the recipient’s offices are closed group, or community resides. See defi-
for all or part of the last day, the pe- nition of ‘‘tribally-owned concern’’ in
riod extends to the next day on which this section.
the agency is open. Joint venture means an association of
Department or DOT means the U.S. a DBE firm and one or more other
Department of Transportation, includ- firms to carry out a single, for-profit
ing the Office of the Secretary, the business enterprise, for which the par-
Federal Highway Administration ties combine their property, capital, ef-
(FHWA), the Federal Transit Adminis- forts, skills and knowledge, and in
tration (FTA), and the Federal Avia- which the DBE is responsible for a dis-
tion Administration (FAA). tinct, clearly defined portion of the
Disadvantaged business enterprise or work of the contract and whose share
DBE means a for-profit small business in the capital contribution, control,
concern— management, risks, and profits of the
(1) That is at least 51 percent owned joint venture are commensurate with
by one or more individuals who are its ownership interest.
both socially and economically dis- Liabilities mean financial or pecu-
advantaged or, in the case of a corpora- niary obligations. This includes, but is
tion, in which 51 percent of the stock is not limited to, accounts payable, notes
owned by one or more such individuals; payable to bank or others, installment
and accounts, mortgages on real estate,
(2) Whose management and daily and unpaid taxes.
business operations are controlled by Native Hawaiian means any indi-
one or more of the socially and eco- vidual whose ancestors were natives,
nomically disadvantaged individuals prior to 1778, of the area which now

who own it. comprises the State of Hawaii.
248
Native Hawaiian Organization means assistance, authorized by the laws to

any community service organization which this part applies.
serving Native Hawaiians in the State Race-conscious measure or program is
of Hawaii which is a not-for-profit or- one that is focused specifically on as-
ganization chartered by the State of sisting only DBEs, including women-
Hawaii, is controlled by Native Hawai- owned DBEs.
ians, and whose business activities will Race-neutral measure or program is
principally benefit such Native Hawai- one that is, or can be, used to assist all
ians. small businesses. For the purposes of
Noncompliance means that a recipient
this part, race-neutral includes gender-
has not correctly implemented the re-
neutrality.
quirements of this part.
Operating Administration or OA means Recipient is any entity, public or pri-
any of the following parts of DOT: the vate, to which DOT financial assist-
Federal Aviation Administration ance is extended, whether directly or
(FAA), Federal Highway Administra- through another recipient, through the
tion (FHWA), and Federal Transit Ad- programs of the FAA, FHWA, or FTA,
ministration (FTA). The ‘‘Adminis- or who has applied for such assistance.
trator’’ of an operating administration Secretary means the Secretary of
includes his or her designees. Transportation or his/her designee.
Personal net worth means the net Set-aside means a contracting prac-
value of the assets of an individual re- tice restricting eligibility for the com-
maining after total liabilities are de- petitive award of a contract solely to
ducted. An individual’s personal net DBE firms.
worth does not include: The individ- Small Business Administration or SBA
ual’s ownership interest in an appli- means the United States Small Busi-
cant or participating DBE firm; or the ness Administration.
individual’s equity in his or her pri-
SBA certified firm refers to firms that
mary place of residence. An individ-
have a current, valid certification from
ual’s personal net worth includes only
his or her own share of assets held or recognized by the SBA under the
jointly or as community property with 8(a) BD or SDB programs.
the individual’s spouse. Small business concern means, with re-
Primary industry classification means spect to firms seeking to participate as
the most current North American In- DBEs in DOT-assisted contracts, a
dustry Classification System (NAICS) small business concern as defined pur-
designation which best describes the suant to section 3 of the Small Busi-
primary business of a firm. The NAICS ness Act and Small Business Adminis-
is described in the North American In- tration regulations implementing it (13
dustry Classification Manual—United CFR part 121) that also does not exceed
States, which is available on the Inter- the cap on average annual gross re-
net at the U.S. Census Bureau Web ceipts specified in § 26.65(b).
site: http://www.census.gov/eos/www/ Socially and economically disadvan-
naics/. taged individual means any individual
Primary recipient means a recipient who is a citizen (or lawfully admitted
which receives DOT financial assist- permanent resident) of the United
ance and passes some or all of it on to States and who has been subjected to
another recipient. racial or ethnic prejudice or cultural
Principal place of business means the bias within American society because
business location where the individuals
of his or her identity as a members of
who manage the firm’s day-to-day op-
groups and without regard to his or her
erations spend most working hours. If
the offices from which management is individual qualities. The social dis-
directed and where the business records advantage must stem from cir-
are kept are in different locations, the cumstances beyond the individual’s
recipient will determine the principal control.
place of business. (1) Any individual who a recipient
Program means any undertaking on a finds to be a socially and economically

recipient’s part to use DOT financial disadvantaged individual on a case-by-
249
case basis. An individual must dem- are not limited to: Buses, rail cars,
onstrate that he or she has held him- trolleys, ferries, and vehicles manufac-
self or herself out, as a member of a tured specifically for paratransit pur-
designated group if you require it. poses. Producers of vehicles that re-
(2) Any individual in the following ceive post-production alterations or
groups, members of which are retrofitting to be used for public trans-
rebuttably presumed to be socially and portation purposes (e.g., so-called cut-
economically disadvantaged: away vehicles, vans customized for
(i) ‘‘Black Americans,’’ which in- service to people with disabilities) are
cludes persons having origins in any of also considered transit vehicle manu-
the Black racial groups of Africa; facturers. Businesses that manufac-
(ii) ‘‘Hispanic Americans,’’ which in- ture, mass-produce, or distribute vehi-
cludes persons of Mexican, Puerto cles solely for personal use and for sale
Rican, Cuban, Dominican, Central or ‘‘off the lot’’ are not considered transit
South American, or other Spanish or vehicle manufacturers.
Portuguese culture or origin, regard- Tribally-owned concern means any
less of race; concern at least 51 percent owned by an
(iii) ‘‘Native Americans,’’ which in- Indian tribe as defined in this section.
cludes persons who are enrolled mem- You refers to a recipient, unless a
bers of a federally or State recognized statement in the text of this part or
Indian tribe, Alaska Natives, or Native the context requires otherwise (i.e.,
Hawaiians; ‘You must do XYZ’ means that recipi-
(iv) ‘‘Asian-Pacific Americans,’’ ents must do XYZ).
which includes persons whose origins
are from Japan, China, Taiwan, Korea, [64 FR 5126, Feb. 2, 1999, as amended at 64 FR
Burma (Myanmar), Vietnam, Laos, 34570, June 28, 1999; 68 FR 35553, June 16, 2003;
Cambodia (Kampuchea), Thailand, Ma- 76 FR 5096, Jan. 28, 2011; 79 FR 59592, Oct. 2,
laysia, Indonesia, the Philippines, 2014]
Brunei, Samoa, Guam, the U.S. Trust
§ 26.7 What discriminatory actions are
Territories of the Pacific Islands (Re- forbidden?
public of Palau), Republic of the North-
ern Marianas Islands, Samoa, Macao, (a) You must never exclude any per-
Fiji, Tonga, Kirbati, Tuvalu, Nauru, son from participation in, deny any
Federated States of Micronesia, or person the benefits of, or otherwise dis-
Hong Kong; criminate against anyone in connec-
(v) ‘‘Subcontinent Asian Americans,’’ tion with the award and performance of
which includes persons whose origins any contract covered by this part on
are from India, Pakistan, Bangladesh, the basis of race, color, sex, or national
Bhutan, the Maldives Islands, Nepal or origin.
Sri Lanka; (b) In administering your DBE pro-
(vi) Women; gram, you must not, directly or
(vii) Any additional groups whose through contractual or other arrange-
members are designated as socially and ments, use criteria or methods of ad-
economically disadvantaged by the ministration that have the effect of de-
SBA, at such time as the SBA designa- feating or substantially impairing ac-
tion becomes effective. complishment of the objectives of the
(3) Being born in a particular country program with respect to individuals of
does not, standing alone, mean that a a particular race, color, sex, or na-
person is necessarily a member of one tional origin.
of the groups listed in this definition.
Spouse means a married person, in- § 26.9 How does the Department issue
cluding a person in a domestic partner- guidance and interpretations under
ship or a civil union recognized under this part?
State law. (a) Only guidance and interpretations
Transit vehicle manufacturer means (including interpretations set forth in
any manufacturer whose primary busi- certification appeal decisions) con-
ness purpose is to manufacture vehicles sistent with this part 26 and issued
specifically built for public mass trans- after March 4, 1999 express the official
portation. Such vehicles include, but positions and views of the Department
250
of Transportation or any of its oper- (3) You may acquire the information
ating administrations. for your bidders list in a variety of
(b) The Secretary of Transportation, ways. For example, you can collect the
Office of the Secretary of Transpor- data from all bidders, before or after
tation, FHWA, FTA, and FAA may the bid due date. You can conduct a
issue written interpretations of or survey that will result in statistically
written guidance concerning this part. sound estimate of the universe of DBE
Written interpretations and guidance and non-DBE contractors and sub-
are valid, and express the official posi- contractors who seek to work on your
tions and views of the Department of Federally-assisted contracts. You may
Transportation or any of its operating combine different data collection ap-
administrations, only if they are issued proaches (e.g., collect name and address
over the signature of the Secretary of information from all bidders, while
Transportation or if they contain the conducting a survey with respect to
following statement: age and gross receipts information).
The General Counsel of the Department of (d) You must maintain records docu-
Transportation has reviewed this document menting a firm’s compliance with the
and approved it as consistent with the lan- requirements of this part. At a min-
guage and intent of 49 CFR part 26. imum, you must keep a complete appli-
[72 FR 15617, Apr. 2, 2007] cation package for each certified firm
and all affidavits of no-change, change
§ 26.11 What records do recipients notices, and on-site reviews. These
keep and report? records must be retained in accordance
(a) You must transmit the Uniform with applicable record retention re-
Report of DBE Awards or Commit- quirements for the recipient’s financial
ments and Payments, found in Appen- assistance agreement. Other certifi-
dix B to this part, at the intervals stat- cation or compliance related records
ed on the form. must be retained for a minimum of
(b) You must continue to provide three (3) years unless otherwise pro-
data about your DBE program to the vided by applicable record retention re-
Department as directed by DOT oper- quirements for the recipient’s financial
ating administrations. assistance agreement, whichever is
(c) You must create and maintain a longer.
bidders list. (e) The State department of transpor-
(1) The purpose of this list is to pro- tation in each UCP established pursu-
vide you as accurate data as possible ant to § 26.81 of this part must report to
about the universe of DBE and non- the Department of Transportation’s Of-
DBE contractors and subcontractors fice of Civil Rights, by January 1, 2015,
who seek to work on your Federally-as- and each year thereafter, the percent-
sisted contracts for use in helping you age and location in the State of cer-
set your overall goals. tified DBE firms in the UCP Directory
(2) You must obtain the following in- controlled by the following:
formation about DBE and non-DBE (1) Women;
contractors and subcontractors who (2) Socially and economically dis-
seek to work on your Federally-as- advantaged individuals (other than
sisted contracts: women); and
(i) Firm name; (3) Individuals who are women and
(ii) Firm address; are otherwise socially and economi-
(iii) Firm’s status as a DBE or non- cally disadvantaged individuals.
DBE; [64 FR 5126, Feb. 2, 1999, as amended at 65 FR
(iv) Age of the firm; and 68951, Nov. 15, 2000; 76 FR 5096, Jan. 28, 2011;
(v) The annual gross receipts of the 79 FR 59593, Oct. 2, 2014]
firm. You may obtain this information
by asking each firm to indicate into § 26.13 What assurances must recipi-
what gross receipts bracket they fit ents and contractors make?
(e.g., less than $500,000; $500,000–$1 mil- (a) Each financial assistance agree-
lion; $1–2 million; $2–5 million; etc.) ment you sign with a DOT operating
rather than requesting an exact figure administration (or a primary recipient)

from the firm. must include the following assurance:
251
The recipient shall not discriminate on in writing from the Office of the Sec-
the basis of race, color, national origin, retary of Transportation, FHWA, FTA,
or sex in the award and performance of or FAA. The Secretary will grant the
any DOT-assisted contract or in the ad- request only if it documents special or
ministration of its DBE program or the exceptional circumstances, not likely
requirements 49 CFR part 26. The re- to be generally applicable, and not con-
cipient shall take all necessary and templated in connection with the rule-
reasonable steps under 49 CFR part 26 making that established this part, that
to ensure nondiscrimination in the make your compliance with a specific
award and administration of DOT-as- provision of this part impractical. You
sisted contracts. The recipient’s DBE must agree to take any steps that the
program, as required by 49 CFR part 26 Department specifies to comply with
and as approved by DOT, is incor- the intent of the provision from which
porated by reference in this agreement. an exemption is granted. The Secretary
Implementation of this program is a will issue a written response to all ex-
legal obligation and failure to carry emption requests.
out its terms shall be treated as a vio- (b) You can apply for a waiver of any
lation of this agreement. Upon notifi-
provision of Subpart B or C of this part
cation to the recipient of its failure to
including, but not limited to, any pro-
carry out its approved program, the
visions regarding administrative re-
Department may impose sanctions as
quirements, overall goals, contract
provided for under 49 CFR part 26 and
goals or good faith efforts. Program
may, in appropriate cases, refer the
matter for enforcement under 18 U.S.C. waivers are for the purpose of author-
1001 and/or the Program Fraud Civil izing you to operate a DBE program
Remedies Act of 1986 (31 U.S.C. 3801 et that achieves the objectives of this
seq.). part by means that may differ from one
(b) Each contract you sign with a or more of the requirements of Subpart
contractor (and each subcontract the B or C of this part. To receive a pro-
prime contractor signs with a subcon- gram waiver, you must follow these
tractor) must include the following as- procedures:
surance: The contractor, sub recipient (1) You must apply through the con-
or subcontractor shall not discriminate cerned operating administration. The
on the basis of race, color, national ori- application must include a specific pro-
gin, or sex in the performance of this gram proposal and address how you
contract. The contractor shall carry will meet the criteria of paragraph
out applicable requirements of 49 CFR (b)(2) of this section. Before submitting
part 26 in the award and administra- your application, you must have had
tion of DOT-assisted contracts. Failure public participation in developing your
by the contractor to carry out these re- proposal, including consultation with
quirements is a material breach of this the DBE community and at least one
contract, which may result in the ter- public hearing. Your application must
mination of this contract or such other include a summary of the public par-
remedy as the recipient deems appro- ticipation process and the information
priate, which may include, but is not gathered through it.
limited to: (2) Your application must show
(1) Withholding monthly progress that—
payments; (i) There is a reasonable basis to con-
(2) Assessing sanctions; clude that you could achieve a level of
(3) Liquidated damages; and/or DBE participation consistent with the
(4) Disqualifying the contractor from objectives of this part using different
future bidding as non-responsible. or innovative means other than those
[79 FR 59593, Oct. 2, 2014] that are provided in subpart B or C of
this part;
§ 26.15 How can recipients apply for (ii) Conditions in your jurisdiction
exemptions or waivers? are appropriate for implementing the
(a) You can apply for an exemption proposal;
from any provision of this part. To (iii) Your proposal would prevent dis-
apply, you must request the exemption crimination against any individual or
252
group in access to contracting opportu- (3) FAA recipients receiving grants

nities or other benefits of the program; for airport planning or development
and who will award prime contracts the cu-
(iv) Your proposal is consistent with mulative total value of which exceeds
applicable law and program require- $250,000 in FAA funds in a Federal fis-
ments of the concerned operating ad- cal year.
ministration’s financial assistance pro- (b)(1) You must submit a DBE pro-
gram. gram conforming to this part by Au-
(3) The Secretary has the authority gust 31, 1999 to the concerned operating
to approve your application. If the Sec- administration (OA). Once the OA has
retary grants your application, you
approved your program, the approval
may administer your DBE program as
counts for all of your DOT-assisted pro-
provided in your proposal, subject to
grams (except that goals are reviewed
the following conditions:
(i) DBE eligibility is determined as by the particular operating administra-
provided in subparts D and E of this tion that provides funding for your
part, and DBE participation is counted DOT-assisted contracts).
as provided in § 26.49; (2) You do not have to submit regular
(ii) Your level of DBE participation updates of your DBE programs, as long
continues to be consistent with the ob- as you remain in compliance. However,
jectives of this part; you must submit significant changes in
(iii) There is a reasonable limitation the program for approval.
on the duration of your modified pro- (c) You are not eligible to receive
gram; and DOT financial assistance unless DOT
(iv) Any other conditions the Sec- has approved your DBE program and
retary makes on the grant of the waiv- you are in compliance with it and this
er. part. You must continue to carry out
(4) The Secretary may end a program your program until all funds from DOT
waiver at any time and require you to financial assistance have been ex-
comply with this part’s provisions. The pended.
Secretary may also extend the waiver,
if he or she determines that all require- [64 FR 5126, Feb. 2, 1999, as amended at 64 FR
ments of paragraphs (b)(2) and (3) of 34570, June 28, 1999; 65 FR 68951, Nov. 15, 2000;
this section continue to be met. Any 79 FR 59593, Oct. 2, 2014]
such extension shall be for no longer
§ 26.23 What is the requirement for a
than period originally set for the dura- policy statement?
tion of the program.
You must issue a signed and dated
Subpart B—Administrative Re- policy statement that expresses your
quirements for DBE Programs commitment to your DBE program,
states its objectives, and outlines re-
for Federally-Assisted Con- sponsibilities for its implementation.
tracting You must circulate the statement
§ 26.21 Who must have a DBE pro- throughout your organization and to
gram? the DBE and non-DBE business com-
(a) If you are in one of these cat- munities that perform work on your
egories and let DOT-assisted contracts, DOT-assisted contracts.
you must have a DBE program meeting
§ 26.25 What is the requirement for a
the requirements of this part: liaison officer?
(1) All FHWA primary recipients re-
ceiving funds authorized by a statute You must have a DBE liaison officer,
to which this part applies; who shall have direct, independent ac-
(2) FTA recipients receiving plan- cess to your Chief Executive Officer
ning, capital and/or operating assist- concerning DBE program matters. The
ance who will award prime contracts liaison officer shall be responsible for
(excluding transit vehicle purchases) implementing all aspects of your DBE
the cumulative total value of which ex- program. You must also have adequate
ceeds $250,000 in FTA funds in a Federal staff to administer the program in

fiscal year; compliance with this part.
253
§ 26.27 What efforts must recipients the recipient. When a recipient has
make concerning DBE financial in- made an incremental acceptance of a
stitutions? portion of a prime contract, the work
You must thoroughly investigate the of a subcontractor covered by that ac-
full extent of services offered by finan- ceptance is deemed to be satisfactorily
cial institutions owned and controlled completed.
by socially and economically disadvan- (d) Your DBE program must provide
taged individuals in your community appropriate means to enforce the re-
and make reasonable efforts to use quirements of this section. These
these institutions. You must also en- means may include appropriate pen-
courage prime contractors to use such alties for failure to comply, the terms
institutions. and conditions of which you set. Your
program may also provide that any
§ 26.29 What prompt payment mecha- delay or postponement of payment
nisms must recipients have? among the parties may take place only
(a) You must establish, as part of for good cause, with your prior written
your DBE program, a contract clause approval.
to require prime contractors to pay (e) You may also establish, as part of
subcontractors for satisfactory per- your DBE program, any of the fol-
formance of their contracts no later lowing additional mechanisms to en-
than 30 days from receipt of each pay- sure prompt payment:
ment you make to the prime con- (1) A contract clause that requires
tractor. prime contractors to include in their
(b) You must ensure prompt and full subcontracts language providing that
payment of retainage from the prime prime contractors and subcontractors
contractor to the subcontractor within will use appropriate alternative dis-
30 days after the subcontractor’s work pute resolution mechanisms to resolve
is satisfactorily completed. You must payment disputes. You may specify the
use one of the following methods to nature of such mechanisms.
comply with this requirement: (2) A contract clause providing that
(1) You may decline to hold retainage the prime contractor will not be reim-
from prime contractors and prohibit bursed for work performed by sub-
prime contractors from holding contractors unless and until the prime
retainage from subcontractors. contractor ensures that the sub-
(2) You may decline to hold retainage contractors are promptly paid for the
from prime contractors and require a work they have performed.
contract clause obligating prime con- (3) Other mechanisms, consistent
tractors to make prompt and full pay- with this part and applicable state and
ment of any retainage kept by prime local law, to ensure that DBEs and
contractor to the subcontractor within other contractors are fully and prompt-
30 days after the subcontractor’s work ly paid.
is satisfactorily completed.
(3) You may hold retainage from [68 FR 35553, June 16, 2003]
prime contractors and provide for
prompt and regular incremental ac- § 26.31 What information must you in-
clude in your DBE directory?
ceptances of portions of the prime con-
tract, pay retainage to prime contrac- (a) In the directory required under
tors based on these acceptances, and § 26.81(g) of this Part, you must list all
require a contract clause obligating firms eligible to participate as DBEs in
the prime contractor to pay all your program. In the listing for each
retainage owed to the subcontractor firm, you must include its address,
for satisfactory completion of the ac- phone number, and the types of work
cepted work within 30 days after your the firm has been certified to perform
payment to the prime contractor. as a DBE.
(c) For purposes of this section, a (b) You must list each type of work
subcontractor’s work is satisfactorily for which a firm is eligible to be cer-
completed when all the tasks called for tified by using the most specific NAICS
in the subcontract have been accom- code available to describe each type of
plished and documented as required by work. You must make any changes to
254
your current directory entries nec- business development assistance to a

essary to meet the requirement of this DBE firm.
paragraph (a) by August 26, 2011. (1) Only firms you have certified as
DBEs before they are proposed for par-
[76 FR 5096, Jan. 28, 2011]
ticipation in a mentor-protégé program
§ 26.33 What steps must a recipient are eligible to participate in the men-
take to address overconcentration tor-protégé program.
of DBEs in certain types of work? (2) During the course of the mentor-
protégé relationship, you must:
(a) If you determine that DBE firms (i) Not award DBE credit to a non-
are so overconcentrated in a certain DBE mentor firm for using its own
type of work as to unduly burden the protégé firm for more than one half of
opportunity of non-DBE firms to par- its goal on any contract let by the re-
ticipate in this type of work, you must cipient; and
devise appropriate measures to address
(ii) Not award DBE credit to a non-
this overconcentration.
DBE mentor firm for using its own
(b) These measures may include the protégé firm for more than every other
use of incentives, technical assistance, contract performed by the protégé
business development programs, men- firm.
tor-protégé programs, and other appro- (3) For purposes of making deter-
priate measures designed to assist minations of business size under this
DBEs in performing work outside of part, you must not treat protégé firms
the specific field in which you have de- as affiliates of mentor firms, when both
termined that non-DBEs are unduly firms are participating under an ap-
burdened. You may also consider vary- proved mentor-protégé program. See
ing your use of contract goals, to the Appendix D of this part for guidance
extent consistent with § 26.51, to unsure concerning the operation of mentor-
that non-DBEs are not unfairly pre- protégé programs.
vented from competing for sub- (c) Your BDPs and mentor-protégé
contracts. programs must be approved by the con-
(c) You must obtain the approval of cerned operating administration before
the concerned DOT operating adminis- you implement them. Once approved,
tration for your determination of over- they become part of your DBE pro-
concentration and the measures you gram.
devise to address it. Once approved, the
measures become part of your DBE § 26.37 What are a recipient’s respon-
program. sibilities for monitoring the per-
formance of other program partici-
§ 26.35 What role do business develop- pants?
ment and mentor-protégé programs (a) You must implement appropriate
have in the DBE program?
mechanisms to ensure compliance with
(a) You may or, if an operating ad- the part’s requirements by all program
ministration directs you to, you must participants (e.g., applying legal and
establish a DBE business development contract remedies available under Fed-
program (BDP) to assist firms in gain- eral, state and local law). You must set
ing the ability to compete successfully forth these mechanisms in your DBE
in the marketplace outside the DBE program.
program. You may require a DBE firm, (b) Your DBE program must also in-
as a condition of receiving assistance clude a monitoring and enforcement
through the BDP, to agree to termi- mechanism to ensure that work com-
nate its participation in the DBE pro- mitted to DBEs at contract award or
gram after a certain time has passed or subsequently (e.g., as the result of
certain objectives have been reached. modification to the contract) is actu-
See Appendix C of this part for guid- ally performed by the DBEs to which
ance on administering BDP programs. the work was committed. This mecha-
(b) As part of a BDP or separately, nism must include a written certifi-
you may establish a ‘‘mentor-protégé’’ cation that you have reviewed con-
program, in which another DBE or non- tracting records and monitored work
DBE firm is the principal source of sites in your state for this purpose. The
255
monitoring to which this paragraph re- curements to facilitate the ability of

fers may be conducted in conjunction consortia or joint ventures consisting
with monitoring of contract perform- of small businesses, including DBEs, to
ance for other purposes (e.g., close-out compete for and perform prime con-
reviews for a contract). tracts.
(c) This mechanism must provide for (5) To meet the portion of your over-
a running tally of actual DBE attain- all goal you project to meet through
ments (e.g., payments actually made to race-neutral measures, ensuring that a
DBE firms), including a means of com- reasonable number of prime contracts
paring these attainments to commit- are of a size that small businesses, in-
ments. In your reports of DBE partici- cluding DBEs, can reasonably perform.
pation to the Department, you must (c) You must actively implement
display both commitments and attain- your program elements to foster small
ments. business participation. Doing so is a re-
[64 FR 5126, Feb. 2, 1999, as amended at 65 FR quirement of good faith implementa-
68951, Nov. 15, 2000; 68 FR 35554, June 16, 2003; tion of your DBE program.
76 FR 5097, Jan. 28, 2011]
[76 FR 5097, Jan. 28, 2011]
§ 26.39 Fostering small business par-
ticipation. Subpart C—Goals, Good Faith
(a) Your DBE program must include Efforts, and Counting
an element to structure contracting re-
quirements to facilitate competition § 26.41 What is the role of the statu-
by small business concerns, taking all tory 10 percent goal in this pro-
reasonable steps to eliminate obstacles gram?
to their participation, including unnec- (a) The statutes authorizing this pro-
essary and unjustified bundling of con- gram provide that, except to the extent
tract requirements that may preclude the Secretary determines otherwise,
small business participation in pro- not less than 10 percent of the author-
curements as prime contractors or sub- ized funds are to be expended with
contractors. DBEs.
(b) This element must be submitted (b) This 10 percent goal is an aspira-
to the appropriate DOT operating ad- tional goal at the national level, which
ministration for approval as a part of
the Department uses as a tool in evalu-
your DBE program by February 28,
ating and monitoring DBEs’ opportuni-
2012. As part of this program element
ties to participate in DOT-assisted con-
you may include, but are not limited
tracts.
to, the following strategies:
(1) Establishing a race-neutral small (c) The national 10 percent goal does
business set-aside for prime contracts not authorize or require recipients to
under a stated amount (e.g., $1 mil- set overall or contract goals at the 10
lion). percent level, or any other particular
(2) In multi-year design-build con- level, or to take any special adminis-
tracts or other large contracts (e.g., for trative steps if their goals are above or
‘‘megaprojects’’) requiring bidders on below 10 percent.
the prime contract to specify elements
§ 26.43 Can recipients use set-asides or
of the contract or specific subcontracts quotas as part of this program?
that are of a size that small businesses,
including DBEs, can reasonably per- (a) You are not permitted to use
form. quotas for DBEs on DOT-assisted con-
(3) On prime contracts not having tracts subject to this part.
DBE contract goals, requiring the (b) You may not set-aside contracts
prime contractor to provide subcon- for DBEs on DOT-assisted contracts
tracting opportunities of a size that subject to this part, except that, in
small businesses, including DBEs, can limited and extreme circumstances,
reasonably perform, rather than self- you may use set-asides when no other
performing all the work involved. method could be reasonably expected
(4) Identifying alternative acquisi- to redress egregious instances of dis-

tion strategies and structuring pro- crimination.
256
§ 26.45 How do recipients set overall ing and able businesses available in
goals? your market that perform work in the
(a)(1) Except as provided in para- same NAICS codes. (Information about
graph (a)(2) of this section, you must the CBP data base may be obtained
set an overall goal for DBE participa- from the Census Bureau at their web
tion in your DOT-assisted contracts. site, www.census.gov/epcd/cbp/view/
(2) If you are a FTA or FAA recipient cbpview.html.) Divide the number of
who reasonably anticipates awarding DBEs by the number of all businesses
(excluding transit vehicle purchases) to derive a base figure for the relative
$250,000 or less in FTA or FAA funds in availability of DBEs in your market.
prime contracts in a Federal fiscal (2) Use a bidders list. Determine the
year, you are not required to develop number of DBEs that have bid or
overall goals for FTA or FAA respec- quoted (successful and unsuccessful) on
tively for that fiscal year. However, if your DOT-assisted prime contracts or
you have an existing DBE program, it subcontracts in the past three years.
must remain in effect and you must Determine the number of all businesses
seek to fulfill the objectives outlined that have bid or quoted (successful and
in § 26.1. unsuccessful) on prime or subcontracts
(b) Your overall goal must be based in the same time period. Divide the
on demonstrable evidence of the avail- number of DBE bidders and quoters by
ability of ready, willing and able DBEs the number of all businesses to derive a
relative to all businesses ready, willing base figure for the relative availability
and able to participate on your DOT- of DBEs in your market. When using
assisted contracts (hereafter, the ‘‘rel- this approach, you must establish a
ative availability of DBEs’’). The goal mechanism (documented in your goal
must reflect your determination of the submission) to directly capture data on
level of DBE participation you would DBE and non-DBE prime and sub-
expect absent the effects of discrimina- contractors that submitted bids or
tion. You cannot simply rely on either quotes on your DOT-assisted contracts.
the 10 percent national goal, your pre- (3) Use data from a disparity study. Use
vious overall goal or past DBE partici- a percentage figure derived from data
pation rates in your program without
in a valid, applicable disparity study.
reference to the relative availability of
(4) Use the goal of another DOT recipi-
DBEs in your market.
(c) Step 1. You must begin your goal ent. If another DOT recipient in the
setting process by determining a base same, or substantially similar, market
figure for the relative availability of has set an overall goal in compliance
DBEs. The following are examples of with this rule, you may use that goal
approaches that you may take toward as a base figure for your goal.
determining a base figure. These exam- (5) Alternative methods. Except as oth-
ples are provided as a starting point for erwise provided in this paragraph, you
your goal setting process. Any percent- may use other methods to determine a
age figure derived from one of these ex- base figure for your overall goal. Any
amples should be considered a basis methodology you choose must be based
from which you begin when examining on demonstrable evidence of local mar-
all evidence available in your jurisdic- ket conditions and be designed to ulti-
tion. These examples are not intended mately attain a goal that is rationally
as an exhaustive list. Other methods or related to the relative availability of
combinations of methods to determine DBEs in your market. The exclusive
a base figure may be used, subject to use of a list of prequalified contractors
approval by the concerned operating or plan holders, or a bidders list that
administration. does not comply with the requirements
(1) Use DBE Directories and Census Bu- of paragraph (c)(2) of this section, is
reau Data. Determine the number of not an acceptable alternative means of
ready, willing and able DBEs in your determining the availability of DBEs.
market from your DBE directory. (d) Step 2. Once you have calculated a
Using the Census Bureau’s County base figure, you must examine all of
Business Pattern (CBP) data base, de- the evidence available in your jurisdic-
termine the number of all ready, will- tion to determine what adjustment, if
257
any, is needed to the base figure to ar- cles) that you will expend in FTA or
rive at your overall goal. If the evi- FAA-assisted contracts in the three
dence does not suggest an adjustment forthcoming fiscal years.
is necessary, then no adjustment shall (3) In appropriate cases, the FHWA,
be made. FTA or FAA Administrator may per-
(1) There are many types of evidence mit or require you to express your
that must be considered when adjust- overall goal as a percentage of funds
ing the base figure. These include: for a particular grant or project or
(i) The current capacity of DBEs to group of grants and/or projects, includ-
perform work in your DOT-assisted ing entire projects. Like other overall
contracting program, as measured by goals, a project goal may be adjusted
the volume of work DBEs have per- to reflect changed circumstances, with
formed in recent years; the concurrence of the appropriate op-
(ii) Evidence from disparity studies erating administration.
conducted anywhere within your juris- (i) A project goal is an overall goal,
diction, to the extent it is not already and must meet all the substantive and
accounted for in your base figure; and procedural requirements of this section
(iii) If your base figure is the goal of pertaining to overall goals.
another recipient, you must adjust it (ii) A project goal covers the entire
for differences in your local market length of the project to which it ap-
and your contracting program. plies.
(2) If available, you must consider (iii) The project goal should include a
evidence from related fields that affect projection of the DBE participation an-
the opportunities for DBEs to form, ticipated to be obtained during each
grow and compete. These include, but fiscal year covered by the project goal.
are not limited to: (iv) The funds for the project to
(i) Statistical disparities in the abil- which the project goal pertains are sep-
ity of DBEs to get the financing, bond- arated from the base from which your
ing and insurance required to partici- regular overall goal, applicable to con-
pate in your program; tracts not part of the project covered
(ii) Data on employment, self-em- by a project goal, is calculated.
ployment, education, training and (f)(1)(i) If you set your overall goal on
union apprenticeship programs, to the a fiscal year basis, you must submit it
extent you can relate it to the opportu- to the applicable DOT operating ad-
nities for DBEs to perform in your pro- ministration by August 1 at three-year
gram. intervals, based on a schedule estab-
(3) If you attempt to make an adjust- lished by the FHWA, FTA, or FAA, as
ment to your base figure to account for applicable, and posted on that agency’s
the continuing effects of past discrimi- Web site.
nation (often called the ‘‘but for’’ fac- (ii) You may adjust your three-year
tor) or the effects of an ongoing DBE overall goal during the three-year pe-
program, the adjustment must be based riod to which it applies, in order to re-
on demonstrable evidence that is logi- flect changed circumstances. You must
cally and directly related to the effect submit such an adjustment to the con-
for which the adjustment is sought. cerned operating administration for re-
(e) Once you have determined a per- view and approval.
centage figure in accordance with para- (iii) The operating administration
graphs (c) and (d) of this section, you may direct you to undertake a review
should express your overall goal as fol- of your goal if necessary to ensure that
lows: the goal continues to fit your cir-
(1) If you are an FHWA recipient, as cumstances appropriately.
a percentage of all Federal-aid highway (iv) While you are required to submit
funds you will expend in FHWA-as- an overall goal to FHWA, FTA, or FAA
sisted contracts in the forthcoming only every three years, the overall goal
three fiscal years. and the provisions of Sec. 26.47(c) apply
(2) If you are an FTA or FAA recipi- to each year during that three-year pe-
ent, as a percentage of all FT or FAA riod.
funds (exclusive of FTA funds to be (v) You may make, for informational
used for the purchase of transit vehi- purposes, projections of your expected
258
DBE achievements during each of the imum extent feasible given the data
three years covered by your overall available to you; and
goal. However, it is the overall goal (ii) Avoid imposing undue burdens on
itself, and not these informational pro- non-DBEs.
jections, to which the provisions of sec- (6) Timely submission and operating
tion 26.47(c) of this part apply. administration approval of your over-
(2) If you are a recipient and set your all goal is a condition of eligibility for
overall goal on a project or grant basis DOT financial assistance.
as provided in paragraph (e)(3) of this (7) If you fail to establish and imple-
section, you must submit the goal for ment goals as provided in this section,
review at a time determined by the you are not in compliance with this
FHWA, FTA or FAA Administrator, as part. If you establish and implement
applicable. goals in a way different from that pro-
(3) You must include with your over- vided in this part, you are not in com-
all goal submission a description of the pliance with this part. If you fail to
methodology you used to establish the comply with this requirement, you are
goal, incuding your base figure and the not eligible to receive DOT financial
evidence with which it was calculated, assistance.
and the adjustments you made to the (g)(1) In establishing an overall goal,
base figure and the evidence you relied you must provide for consultation and
on for the adjustments. You should publication. This includes:
also include a summary listing of the (i) Consultation with minority, wom-
relevant available evidence in your ju- en’s and general contractor groups,
risdiction and, where applicable, an ex- community organizations, and other
planation of why you did not use that officials or organizations which could
evidence to adjust your base figure. be expected to have information con-
You must also include your projection cerning the availability of disadvan-
taged and non-disadvantaged busi-
of the portions of the overall goal you
nesses, the effects of discrimination on
expect to meet through race-neutral
opportunities for DBEs, and your ef-
and race-consioous measures, respec-
forts to establish a level playing field
tively (see 26.51(c)).
for the participation of DBEs. The con-
(4) You are not required to obtain sultation must include a scheduled, di-
prior operating administration concur- rect, interactive exchange (e.g., a face-
rence with your overall goal. However, to-face meeting, video conference, tele-
if the operating administration’s re- conference) with as many interested
view suggests that your overall goal stakeholders as possible focused on ob-
has not been correctly calculated or taining information relevant to the
that your method for calculating goals goal setting process, and it must occur
is inadequate, the operating adminis- before you are required to submit your
tration may, after consulting with you, methodology to the operating adminis-
adjust your overall goal or require that tration for review pursuant to para-
you do so. The adjusted overall goal is graph (f) of this section. You must doc-
binding on you. In evaluating the ade- ument in your goal submission the con-
quacy or soundness of the methodology sultation process you engaged in. Not-
used to derive the overall goal, the op- withstanding paragraph (f)(4) of this
erating administration will be guided section, you may not implement your
by goal setting principles and best proposed goal until you have complied
practices identified by the Department with this requirement.
in guidance issued pursuant to § 26.9. (ii) A published notice announcing
(5) If you need additional time to col- your proposed overall goal before sub-
lect data or take other steps to develop mission to the operating administra-
an approach to setting overall goals, tion on August 1st. The notice must be
you may request the approval of the posted on your official Internet Web
concerned operating administration for site and may be posted in any other
an interim goal and/or goal-setting sources (e.g., minority-focused media,
mechanism. Such a mechanism must: trade association publications). If the
(i) Reflect the relative availability of proposed goal changes following review
DBEs in your local market to the max- by the operating administration, the
259
revised goal must be posted on your of- Plan airport or other airport des-
ficial Internet Web site. ignated by the FAA, you must submit,
(2) At your discretion, you may in- within 90 days of the end of the fiscal
form the public that the proposed over- year, the analysis and corrective ac-
all goal and its rationale are available tions developed under paragraphs (c)(1)
for inspection during normal business and (2) of this section to the appro-
hours at your principal office and for a priate operating administration for ap-
30-day comment period. Notice of the proval. If the operating administration
comment period must include address- approves the report, you will be re-
es to which comments may be sent. garded as complying with the require-
The public comment period will not ex- ments of this section for the remainder
tend the August 1st deadline set in of the fiscal year.
paragraph (f) of this section. (ii) As a transit authority or airport
(h) Your overall goals must provide not meeting the criteria of paragraph
for participation by all certified DBEs (c)(3)(i) of this section, you must retain
and must not be subdivided into group- analysis and corrective actions in your
specific goals. records for three years and make it
available to FTA or FAA on request for
[64 FR 5126, Feb. 2, 1999, as amended at 64 FR
34570, June 28, 1999; 65 FR 68951, Nov. 15, 2000; their review.
68 FR 35553, June 16, 2003; 75 FR 5536, Feb. 3, (4) FHWA, FTA, or FAA may impose
2010; 76 FR 5097, Jan. 28, 2011; 79 FR 59593, conditions on the recipient as part of
Oct. 2, 2014] its approval of the recipient’s analysis
and corrective actions including, but
§ 26.47 Can recipients be penalized for not limited to, modifications to your
failing to meet overall goals? overall goal methodology, changes in
(a) You cannot be penalized, or treat- your race-conscious/race-neutral split,
ed by the Department as being in non- or the introduction of additional race-
compliance with this rule, because neutral or race-conscious measures.
your DBE participation falls short of (5) You may be regarded as being in
your overall goal, unless you have noncompliance with this Part, and
failed to administer your program in therefore subject to the remedies in
good faith. § 26.103 or § 26.105 of this part and other
(b) If you do not have an approved applicable regulations, for failing to
DBE program or overall goal, or if you implement your DBE program in good
fail to implement your program in faith if any of the following things
good faith, you are in noncompliance occur:
with this part. (i) You do not submit your analysis
(c) If the awards and commitments and corrective actions to FHWA, FTA,
shown on your Uniform Report of or FAA in a timely manner as required
Awards or Commitments and Pay- under paragraph (c)(3) of this section;
ments at the end of any fiscal year are (ii) FHWA, FTA, or FAA disapproves
less than the overall goal applicable to your analysis or corrective actions; or
that fiscal year, you must do the fol- (iii) You do not fully implement the
lowing in order to be regarded by the corrective actions to which you have
Department as implementing your committed or conditions that FHWA,
DBE program in good faith: FTA, or FAA has imposed following re-
(1) Analyze in detail the reasons for view of your analysis and corrective
the difference between the overall goal actions.
and your awards and commitments in (d) If, as recipient, your Uniform Re-
that fiscal year; port of DBE Awards or Commitments
(2) Establish specific steps and mile- and Payments or other information
stones to correct the problems you coming to the attention of FTA,
have identified in your analysis and to FHWA, or FAA, demonstrates that cur-
enable you to meet fully your goal for rent trends make it unlikely that you
the new fiscal year; will achieve DBE awards and commit-
(3)(i) If you are a state highway agen- ments that would be necessary to allow
cy; one of the 50 largest transit au- you to meet your overall goal at the
thorities as determined by the FTA; or end of the fiscal year, FHWA, FTA, or
an Operational Evolution Partnership FAA, as applicable, may require you to
260
make further good faith efforts, such The base from which you calculate this
as by modifying your race-conscious/ goal is the amount of FTA financial as-
race-neutral split or introducing addi- sistance included in transit vehicle
tional race-neutral or race-conscious contracts you will bid on during the
measures for the remainder of the fis- fiscal year in question, less the por-
cal year. tion(s) attributable to the manufac-
turing process performed entirely by
5098, Jan. 28, 2011] the transit vehicle manufacturer’s own
forces.
§ 26.49 How are overall goals estab- (i) You must consider and include in
lished for transit vehicle manufac- your base figure all domestic con-
turers? tracting opportunities made available
(a) If you are an FTA recipient, you to non-DBE firms; and
must require in your DBE program (ii) You must exclude from this base
that each transit vehicle manufac- figure funds attributable to work per-
turer, as a condition of being author- formed outside the United States and
ized to bid or propose on FTA-assisted its territories, possessions, and com-
transit vehicle procurements, certify monwealths.
that it has complied with the require- (iii) In establishing an overall goal,
ments of this section. You do not in- the transit vehicle manufacturer must
clude FTA assistance used in transit provide for public participation. This
vehicle procurements in the base includes consultation with interested
amount from which your overall goal is parties consistent with § 26.45(g).
calculated. (2) The requirements of this part
(1) Only those transit vehicle manu- with respect to submission and ap-
facturers listed on FTA’s certified list proval of overall goals apply to you as
of Transit Vehicle Manufacturers, or they do to recipients.
that have submitted a goal method- (c) Transit vehicle manufacturers
ology to FTA that has been approved awarded must comply with the report-
or has not been disapproved, at the ing requirements of § 26.11 of this part
time of solicitation are eligible to bid. including the requirement to submit
(2) A TVM’s failure to implement the the Uniform Report of Awards or Com-
DBE Program in the manner as pre- mitments and Payments, in order to
scribed in this section and throughout remain eligible to bid on FTA assisted
49 CFR part 26 will be deemed as non- transit vehicle procurements.
compliance, which will result in re- (d) Transit vehicle manufacturers
moval from FTA’s certified TVMs list, must implement all other applicable
resulting in that manufacturer becom- requirements of this part, except those
ing ineligible to bid. relating to UCPs and DBE certification
(3) FTA recipient’s failure to comply procedures.
with the requirements set forth in (e) If you are an FHWA or FAA re-
paragraph (a) of this section may recipient, you may, with FHWA or FAA
sult in formal enforcement action or approval, use the procedures of this
appropriate sanction as determined by section with respect to procurements
FTA (e.g., FTA declining to participate of vehicles or specialized equipment. If
in the vehicle procurement). you choose to do so, then the manufac-
(4) FTA recipients are required to turers of this equipment must meet the
submit within 30 days of making an same requirements (including goal ap-
award, the name of the successful bid- proval by FHWA or FAA) as transit ve-
der, and the total dollar value of the hicle manufacturers must meet in
contract in the manner prescribed in FTA-assisted procurements.
the grant agreement.
(f) As a recipient you may, with FTA
(b) If you are a transit vehicle manu-
approval, establish project-specific
facturer, you must establish and sub-
goals for DBE participation in the pro-
mit for FTA’s approval an annual over-
curement of transit vehicles in lieu of
all percentage goal.
complying through the procedures of
(1) In setting your overall goal, you
this section.
should be guided, to the extent applica-
ble, by the principles underlying § 26.45. [79 FR 59594, Oct. 2, 2014]
261
§ 26.51 What means do recipients use (7) Establishing a program to assist

to meet overall goals? new, start-up firms, particularly in
(a) You must meet the maximum fea- fields in which DBE participation has
sible portion of your overall goal by historically been low;
using race-neutral means of facili- (8) Ensuring distribution of your DBE
tating race-neutral DBE participation. directory, through print and electronic
Race-neutral DBE participation in- means, to the widest feasible universe
cludes any time a DBE wins a prime of potential prime contractors; and
contract through customary competi- (9) Assisting DBEs, and other small
tive procurement procedures or is businesses, to develop their capability
awarded a subcontract on a prime con- to utilize emerging technology and
tract that does not carry a DBE con- conduct business through electronic
tract goal. media.
(b) Race-neutral means include, but (c) Each time you submit your over-
are not limited to, the following: all goal for review by the concerned op-
(1) Arranging solicitations, times for erating administration, you must also
the presentation of bids, quantities, submit your projection of the portion
specifications, and delivery schedules of the goal that you expect to meet
in ways that facilitate participation by through race-neutral means and your
DBEs and other small businesses and basis for that projection. This projec-
by making contracts more accessible tion is subject to approval by the con-
to small businesses, by means such as cerned operating administration, in
those provided under § 26.39 of this part. conjunction with its review of your
(2) Providing assistance in over- overall goal.
coming limitations such as inability to (d) You must establish contract goals
obtain bonding or financing (e.g., by to meet any portion of your overall
such means as simplifying the bonding goal you do not project being able to
process, reducing bonding require- meet using race-neutral means.
ments, eliminating the impact of sur- (e) The following provisions apply to
ety costs from bids, and providing serv- the use of contract goals:
ices to help DBEs, and other small (1) You may use contract goals only
businesses, obtain bonding and financ- on those DOT-assisted contracts that
ing); have subcontracting possibilities.
(3) Providing technical assistance (2) You are not required to set a con-
and other services; tract goal on every DOT-assisted con-
(4) Carrying out information and tract. You are not required to set each
communications programs on con- contract goal at the same percentage
tracting procedures and specific con- level as the overall goal. The goal for a
tract opportunities (e.g., ensuring the specific contract may be higher or
inclusion of DBEs, and other small lower than that percentage level of the
businesses, on recipient mailing lists overall goal, depending on such factors
for bidders; ensuring the dissemination as the type of work involved, the loca-
to bidders on prime contracts of lists of tion of the work, and the availability
potential subcontractors; provision of of DBEs for the work of the particular
information in languages other than contract. However, over the period cov-
English, where appropriate); ered by your overall goal, you must set
(5) Implementing a supportive serv- contract goals so that they will cumu-
ices program to develop and improve latively result in meeting any portion
immediate and long-term business of your overall goal you do not project
management, record keeping, and fi- being able to meet through the use of
nancial and accounting capability for race-neutral means.
DBEs and other small businesses; (3) Operating administration ap-
(6) Providing services to help DBEs, proval of each contract goal is not nec-
and other small businesses, improve essarily required. However, operating
long-term development, increase op- administrations may review and ap-
portunities to participate in a variety prove or disapprove any contract goal
of kinds of work, handle increasingly you establish.
significant projects, and achieve even- (4) Your contract goals must provide
tual self-sufficiency; for participation by all certified DBEs
262
and must not be subdivided into group- scious means during the remainder of the
specific goals. year in order to achieve your overall goal.
(f) To ensure that your DBE program (3) If the DBE participation you have
continues to be narrowly tailored to obtained by race-neutral means alone
overcome the effects of discrimination, meets or exceeds your overall goals for
you must adjust your use of contract two consecutive years, you are not re-
goals as follows: quired to make a projection of the
(1) If your approved projection under amount of your goal you can meet
paragraph (c) of this section estimates using such means in the next year. You
that you can meet your entire overall do not set contract goals on any con-
goal for a given year through race-neu- tracts in the next year. You continue
tral means, you must implement your using only race-neutral means to meet
program without setting contract goals your overall goals unless and until you
during that year, unless it becomes do not meet your overall goal for a
necessary in order meet your overall year.
goal.
Example to paragraph (f)(3): Your overall
Example to paragraph (f)(1): Your overall goal for Years I and Year II is 10 percent. The
goal for Year 1 is 12 percent. You estimate DBE participation you obtain through race-
that you can obtain 12 percent or more DBE neutral measures alone is 10 percent or more
participation through the use of race-neutral in each year. (For this purpose, it does not
measures, without any use of contract goals. matter whether you obtained additional DBE
In this case, you do not set any contract participation through using contract goals
goals for the contracts that will be per- in these years.) In Year III and following
formed in Year 1. However, if part way years, you do not need to make a projection
through Year 1, your DBE awards or commit- under paragraph (c) of this section of the
ments are not at a level that would permit portion of your overall goal you expect to
you to achieve your overall goal for Year 1, meet using race-neutral means. You simply
you could begin setting race-conscious DBE use race-neutral means to achieve your over-
contract goals during the remainder of the all goals. However, if in Year VI your DBE
year as part of your obligation to implement participation falls short of your overall goal,
your program in good faith. then you must make a paragraph (c) projec-
tion for Year VII and, if necessary, resume
(2) If, during the course of any year use of contract goals in that year.
in which you are using contract goals,
you determine that you will exceed (4) If you obtain DBE participation
your overall goal, you must reduce or that exceeds your overall goal in two
eliminate the use of contract goals to consecutive years through the use of
the extent necessary to ensure that the contract goals (i.e., not through the use
use of contract goals does not result in of race-neutral means alone), you must
exceeding the overall goal. If you de- reduce your use of contract goals pro-
termine that you will fall short of your portionately in the following year.
overall goal, then you must make ap- Example to paragraph (f)(4): In Years I and
propriate modifications in your use of II, your overall goal is 12 percent, and you
race-neutral and/or race-conscious obtain 14 and 16 percent DBE participation,
measures to allow you to meet the respectively. You have exceeded your goals
overall goal. over the two-year period by an average of 25
percent. In Year III, your overall goal is
Example to paragraph (f)(2): In Year II, your again 12 percent, and your paragraph (c) pro-
overall goal is 12 percent. You have esti- jection estimates that you will obtain 4 per-
mated that you can obtain 5 percent DBE cent DBE participation through race-neutral
participation through use of race-neutral means and 8 percent through contract goals.
measures. You therefore plan to obtain the You then reduce the contract goal projection
remaining 7 percent participation through by 25 percent (i.e., from 8 to 6 percent) and
use of DBE goals. By September, you have set contract goals accordingly during the
already obtained 11 percent DBE participa- year. If in Year III you obtain 11 percent par-
tion for the year. For contracts let during ticipation, you do not use this contract goal
the remainder of the year, you use contract adjustment mechanism for Year IV, because
goals only to the extent necessary to obtain there have not been two consecutive years of
an additional one percent DBE participation. exceeding overall goals.
However, if you determine in September that
(g) In any year in which you project
your participation for the year is likely to be

only 8 percent total, then you would increase meeting part of your goal through
your use of race-neutral and/or race-con- race-neutral means and the remainder
263
through contract goals, you must (iii) The dollar amount of the partici-
maintain data separately on DBE pation of each DBE firm participating;
achievements in those contracts with (iv) Written documentation of the
and without contract goals, respec- bidder/offeror’s commitment to use a
tively. You must report this data to DBE subcontractor whose participation
the concerned operating administra- it submits to meet a contract goal; and
tion as provided in § 26.11. (v) Written confirmation from each
[64 FR 5126, Feb. 2, 1999, as amended at 76 FR listed DBE firm that it is participating
5098, Jan. 28, 2011; 79 FR 59595, Oct. 2, 2014] in the contract in the kind and amount
of work provided in the prime contrac-
§ 26.53 What are the good faith efforts tor’s commitment.
procedures recipients follow in situ-
ations where there are contract (vi) If the contract goal is not met,
goals? evidence of good faith efforts (see Ap-
pendix A of this part). The documenta-
(a) When you have established a DBE tion of good faith efforts must include
contract goal, you must award the con- copies of each DBE and non-DBE sub-
tract only to a bidder/offeror who
contractor quote submitted to the bid-
makes good faith efforts to meet it.
der when a non-DBE subcontractor was
You must determine that a bidder/of-
feror has made good faith efforts if the selected over a DBE for work on the
bidder/offeror does either of the fol- contract; and
lowing things: (3)(i) At your discretion, the bidder/
(1) Documents that it has obtained offeror must present the information
enough DBE participation to meet the required by paragraph (b)(2) of this sec-
goal; or tion—
(2) Documents that it made adequate (A) Under sealed bid procedures, as a
good faith efforts to meet the goal, matter of responsiveness, or with ini-
even though it did not succeed in ob- tial proposals, under contract negotia-
taining enough DBE participation to tion procedures; or
do so. If the bidder/offeror does docu- (B) No later than 7 days after bid
ment adequate good faith efforts, you opening as a matter of responsibility.
must not deny award of the contract on The 7 days shall be reduced to 5 days
the basis that the bidder/offeror failed beginning January 1, 2017.
to meet the goal. See Appendix A of (ii) Provided that, in a negotiated
this part for guidance in determining procurement, including a design-build
the adequacy of a bidder/offeror’s good procurement, the bidder/offeror may
faith efforts. make a contractually binding commit-
(b) In your solicitations for DOT-as- ment to meet the goal at the time of
sisted contracts for which a contract bid submission or the presentation of
goal has been established, you must re- initial proposals but provide the infor-
quire the following: mation required by paragraph (b)(2) of
(1) Award of the contract will be con- this section before the final selection
ditioned on meeting the requirements for the contract is made by the recipi-
of this section; ent.
(2) All bidders or offerors will be re- (c) You must make sure all informa-
quired to submit the following infor-
tion is complete and accurate and ade-
mation to the recipient, at the time
quately documents the bidder/offeror’s
provided in paragraph (b)(3) of this sec-
tion: good faith efforts before committing
yourself to the performance of the con-
(i) The names and addresses of DBE
firms that will participate in the contract by the bidder/offeror.
tract; (d) If you determine that the appar-
(ii) A description of the work that ent successful bidder/offeror has failed
each DBE will perform. To count to- to meet the requirements of paragraph
ward meeting a goal, each DBE firm (a) of this section, you must, before
must be certified in a NAICS code ap- awarding the contract, provide the bid-
plicable to the kind of work the firm der/offeror an opportunity for adminis-
would perform on the contract; trative reconsideration.
264
(1) As part of this reconsideration, which each is listed unless the con-
the bidder/offeror must have the oppor- tractor obtains your written consent as
tunity to provide written documenta- provided in this paragraph (f); and
tion or argument concerning the issue (B) That, unless your consent is pro-
of whether it met the goal or made ade- vided under this paragraph (f), the con-
quate good faith efforts to do so. tractor shall not be entitled to any
(2) Your decision on reconsideration payment for work or material unless it
must be made by an official who did is performed or supplied by the listed
not take part in the original deter- DBE.
mination that the bidder/offeror failed (2) You may provide such written
to meet the goal or make adequate consent only if you agree, for reasons
good faith efforts to do so. stated in your concurrence document,
(3) The bidder/offeror must have the that the prime contractor has good
opportunity to meet in person with cause to terminate the DBE firm.
your reconsideration official to discuss
(3) For purposes of this paragraph,
the issue of whether it met the goal or
good cause includes the following cir-
made adequate good faith efforts to do
cumstances:
so.
(4) You must send the bidder/offeror a (i) The listed DBE subcontractor fails
written decision on reconsideration, or refuses to execute a written con-
explaining the basis for finding that tract;
the bidder did or did not meet the goal (ii) The listed DBE subcontractor
or make adequate good faith efforts to fails or refuses to perform the work of
do so. its subcontract in a way consistent
(5) The result of the reconsideration with normal industry standards. Pro-
process is not administratively appeal- vided, however, that good cause does
able to the Department of Transpor- not exist if the failure or refusal of the
tation. DBE subcontractor to perform its work
(e) In a ‘‘design-build’’ or ‘‘turnkey’’ on the subcontract results from the
contracting situation, in which the re- bad faith or discriminatory action of
cipient lets a master contract to a con- the prime contracor;
tractor, who in turn lets subsequent (iii) The listed DBE subcontractor
subcontracts for the work of the fails or refuses to meet the prime con-
project, a recipient may establish a tractor’s reasonable, nondiscrim-
goal for the project. The master con- inatory bond requirements.
tractor then establishes contract goals, (iv) The listed DBE subcontractor be-
as appropriate, for the subcontracts it comes bankrupt, insolvent, or exhibits
lets. Recipients must maintain over- credit unworthiness;
sight of the master contractor’s activi- (v) The listed DBE subcontractor is
ties to ensure that they are conducted ineligible to work on public works
consistent with the requirements of projects because of suspension and de-
this part. barment proceedings pursuant 2 CFR
(f)(1)(i) You must require that a Parts 180, 215 and 1,200 or applicable
prime contractor not terminate a DBE
state law;
subcontractor listed in response to
(vii) You have determined that the
paragraph (b)(2) of this section (or an
approved substitute DBE firm) without listed DBE subcontractor is not a re-
your prior written consent. This in- sponsible contractor;
cludes, but is not limited to, instances (vi) The listed DBE subcontractor
in which a prime contractor seeks to voluntarily withdraws from the project
perform work originally designated for and provides to you written notice of
a DBE subcontractor with its own its withdrawal;
forces or those of an affiliate, a non- (vii) The listed DBE is ineligible to
DBE firm, or with another DBE firm. receive DBE credit for the type of work
(ii) You must include in each prime required;
contract a provision stating: (viii) A DBE owner dies or becomes
(A) That the contractor shall utilize disabled with the result that the listed
the specific DBEs listed to perform the DBE contractor is unable to complete
work and supply the materials for its work on the contract;
265
(ix) Other documented good cause tion to the contractor stating whether
that you determine compels the termi- or not good faith efforts have been
nation of the DBE subcontractor. Pro- demonstrated.
vided, that good cause does not exist if (h) You must include in each prime
the prime contractor seeks to termi- contract the contract clause required
nate a DBE it relied upon to obtain the by § 26.13(b) stating that failure by the
contract so that the prime contractor contractor to carry out the require-
can self-perform the work for which ments of this part is a material breach
the DBE contractor was engaged or so of the contract and may result in the
that the prime contractor can sub- termination of the contract or such
stitute another DBE or non-DBE con- other remedies set forth in that section
tractor after contract award. you deem appropriate if the prime con-
(4) Before transmitting to you its re- tractor fails to comply with the re-
quest to terminate and/or substitute a quirements of this section.
DBE subcontractor, the prime con- (i) You must apply the requirements
tractor must give notice in writing to of this section to DBE bidders/offerors
the DBE subcontractor, with a copy to for prime contracts. In determining
you, of its intent to request to termi- whether a DBE bidder/offeror for a
nate and/or substitute, and the reason prime contract has met a contract
for the request. goal, you count the work the DBE has
(5) The prime contractor must give committed to performing with its own
the DBE five days to respond to the forces as well as the work that it has
prime contractor’s notice and advise committed to be performed by DBE
you and the contractor of the reasons, subcontractors and DBE suppliers.
if any, why it objects to the proposed (j) You must require the contractor
termination of its subcontract and why awarded the contract to make avail-
you should not approve the prime con- able upon request a copy of all DBE
tractor’s action. If required in a par- subcontracts. The subcontractor shall
ticular case as a matter of public ne- ensure that all subcontracts or an
cessity (e.g., safety), you may provide a agreement with DBEs to supply labor
response period shorter than five days. or materials require that the sub-
(6) In addition to post-award termi- contract and all lower tier subcontrac-
nations, the provisions of this section tors be performed in accordance with
apply to preaward deletions of or sub- this part’s provisions.
stitutions for DBE firms put forward [64 FR 5126, Feb. 2, 1999, as amended at 76 FR
by offerors in negotiated procurements. 5098, Jan. 28, 2011; 79 FR 59595, Oct. 2, 2014]
(g) When a DBE subcontractor is ter-
minated as provided in paragraph (f) of § 26.55 How is DBE participation
this section, or fails to complete its counted toward goals?
work on the contract for any reason, (a) When a DBE participates in a con-
you must require the prime contractor tract, you count only the value of the
to make good faith efforts to find an- work actually performed by the DBE
other DBE subcontractor to substitute toward DBE goals.
for the original DBE. These good faith (1) Count the entire amount of that
efforts shall be directed at finding an- portion of a construction contract (or
other DBE to perform at least the same other contract not covered by para-
amount of work under the contract as graph (a)(2) of this section) that is per-
the DBE that was terminated, to the formed by the DBE’s own forces. In-
extent needed to meet the contract clude the cost of supplies and materials
goal you established for the procure- obtained by the DBE for the work of
ment. The good faith efforts shall be the contract, including supplies pur-
documented by the contractor. If the chased or equipment leased by the DBE
recipient requests documentation (except supplies and equipment the
under this provision, the contractor DBE subcontractor purchases or leases
shall submit the documentation within from the prime contractor or its affil-
7 days, which may be extended for an iate).
additional 7 days if necessary at the re- (2) Count the entire amount of fees or
quest of the contractor, and the recipi- commissions charged by a DBE firm for
ent shall provide a written determina- providing a bona fide service, such as
266
professional, technical, consultant, or must examine similar transactions,

managerial services, or for providing particularly those in which DBEs do
bonds or insurance specifically re- not participate.
quired for the performance of a DOT- (3) If a DBE does not perform or exer-
assisted contract, toward DBE goals, cise responsibility for at least 30 per-
provided you determine the fee to be cent of the total cost of its contract
reasonable and not excessive as com- with its own work force, or the DBE
pared with fees customarily allowed for subcontracts a greater portion of the
similar services. work of a contract than would be ex-
(3) When a DBE subcontracts part of pected on the basis of normal industry
the work of its contract to another practice for the type of work involved,
firm, the value of the subcontracted you must presume that it is not per-
work may be counted toward DBE forming a commercially useful func-
goals only if the DBE’s subcontractor tion.
is itself a DBE. Work that a DBE sub- (4) When a DBE is presumed not to be
contracts to a non-DBE firm does not performing a commercially useful func-
count toward DBE goals. tion as provided in paragraph (c)(3) of
(b) When a DBE performs as a partic- this section, the DBE may present evi-
ipant in a joint venture, count a por- dence to rebut this presumption. You
tion of the total dollar value of the may determine that the firm is per-
contract equal to the distinct, clearly forming a commercially useful func-
defined portion of the work of the con- tion given the type of work involved
tract that the DBE performs with its and normal industry practices.
own forces toward DBE goals. (5) Your decisions on commercially
(c) Count expenditures to a DBE con- useful function matters are subject to
tractor toward DBE goals only if the review by the concerned operating ad-
DBE is performing a commercially use- ministration, but are not administra-
ful function on that contract. tively appealable to DOT.
(1) A DBE performs a commercially (d) Use the following factors in deter-
useful function when it is responsible mining whether a DBE trucking com-
for execution of the work of the con- pany is performing a commercially
tract and is carrying out its respon- useful function:
sibilities by actually performing, man- (1) The DBE must be responsible for
aging, and supervising the work in- the management and supervision of the
volved. To perform a commercially entire trucking operation for which it
useful function, the DBE must also be is responsible on a particular contract,
responsible, with respect to materials and there cannot be a contrived ar-
and supplies used on the contract, for rangement for the purpose of meeting
negotiating price, determining quality DBE goals.
and quantity, ordering the material, (2) The DBE must itself own and op-
and installing (where applicable) and erate at least one fully licensed, in-
paying for the material itself. To de- sured, and operational truck used on
termine whether a DBE is performing a the contract.
commercially useful function, you (3) The DBE receives credit for the
must evaluate the amount of work sub- total value of the transportation serv-
contracted, industry practices, whether ices it provides on the contract using
the amount the firm is to be paid under trucks it owns, insures, and operates
the contract is commensurate with the using drivers it employs.
work it is actually performing and the (4) The DBE may lease trucks from
DBE credit claimed for its performance another DBE firm, including an owner-
of the work, and other relevant factors. operator who is certified as a DBE. The
(2) A DBE does not perform a com- DBE who leases trucks from another
mercially useful function if its role is DBE receives credit for the total value
limited to that of an extra participant of the transportation services the les-
in a transaction, contract, or project see DBE provides on the contract.
through which funds are passed in (5) The DBE may also lease trucks
order to obtain the appearance of DBE from a non-DBE firm, including from
participation. In determining whether an owner-operator. The DBE that

a DBE is such an extra participant, you leases trucks equipped with drivers
267
from a non-DBE is entitled to credit (1)(i) If the materials or supplies are

for the total value of transportation obtained from a DBE manufacturer,
services provided by non-DBE leased count 100 percent of the cost of the ma-
trucks equipped with drivers not to ex- terials or supplies toward DBE goals.
ceed the value of transportation serv- (ii) For purposes of this paragraph
ices on the contract provided by DBE- (e)(1), a manufacturer is a firm that op-
owned trucks or leased trucks with erates or maintains a factory or estab-
DBE employee drivers. Additional par- lishment that produces, on the prem-
ticipation by non-DBE owned trucks ises, the materials, supplies, articles,
equipped with drivers receives credit or equipment required under the con-
only for the fee or commission it retract and of the general character de-
ceives as a result of the lease arrange- scribed by the specifications.
ment. If a recipient chooses this ap- (2)(i) If the materials or supplies are
proach, it must obtain written consent purchased from a DBE regular dealer,
from the appropriate DOT operating count 60 percent of the cost of the ma-
administration. terials or supplies toward DBE goals.
Example to paragraph (d)(5): DBE Firm X (ii) For purposes of this section, a
uses two of its own trucks on a contract. It regular dealer is a firm that owns, op-
leases two trucks from DBE Firm Y and six erates, or maintains a store, ware-
trucks equipped with drivers from non-DBE house, or other establishment in which
Firm Z. DBE credit would be awarded for the the materials, supplies, articles or
total value of transportation services pro- equipment of the general character de-
vided by Firm X and Firm Y, and may also
be awarded for the total value of transpor-
scribed by the specifications and re-
tation services provided by four of the six quired under the contract are bought,
trucks provided by Firm Z. In all, full credit kept in stock, and regularly sold or
would be allowed for the participation of leased to the public in the usual course
eight trucks. DBE credit could be awarded of business.
only for the fees or commissions pertaining (A) To be a regular dealer, the firm
to the remaining trucks Firm X receives as must be an established, regular busi-
a result of the lease with Firm Z.
ness that engages, as its principal busi-
(6) The DBE may lease trucks with- ness and under its own name, in the
out drivers from a non-DBE truck leas- purchase and sale or lease of the prod-
ing company. If the DBE leases trucks ucts in question.
from a non-DBE truck leasing company (B) A person may be a regular dealer
and uses its own employees as drivers, in such bulk items as petroleum prod-
it is entitled to credit for the total ucts, steel, cement, gravel, stone, or
value of these hauling services. asphalt without owning, operating, or
Example to paragraph (d)(6): DBE Firm X maintaining a place of business as pro-
uses two of its own trucks on a contract. It vided in this paragraph (e)(2)(ii) if the
leases two additional trucks from non-DBE person both owns and operates dis-
Firm Z. Firm X uses its own employees to tribution equipment for the products.
drive the trucks leased from Firm Z. DBE Any supplementing of regular dealers’
credit would be awarded for the total value own distribution equipment shall be by
of the transportation services provided by all a long-term lease agreement and not
four trucks.
on an ad hoc or contract-by-contract
(7) For purposes of this paragraph (d), basis.
a lease must indicate that the DBE has (C) Packagers, brokers, manufactur-
exclusive use of and control over the ers’ representatives, or other persons
truck. This does not preclude the who arrange or expedite transactions
leased truck from working for others are not regular dealers within the
during the term of the lease with the meaning of this paragraph (e)(2).
consent of the DBE, so long as the (3) With respect to materials or sup-
lease gives the DBE absolute priority plies purchased from a DBE which is
for use of the leased truck. Leased neither a manufacturer nor a regular
trucks must display the name and dealer, count the entire amount of fees
identification number of the DBE. or commissions charged for assistance
(e) Count expenditures with DBEs for in the procurement of the materials
materials or supplies toward DBE goals and supplies, or fees or transportation

as provided in the following: charges for the delivery of materials or
268
supplies required on a job site, toward submit a signed, notarized statement

DBE goals, provided you determine the that they are a member of one of the
fees to be reasonable and not excessive groups in § 26.67(a). Applicants do have
as compared with fees customarily al- the obligation to provide you informa-
lowed for similar services. Do not tion concerning their economic dis-
count any portion of the cost of the advantage (see § 26.67).
materials and supplies themselves to- (d) Individuals who are not presumed
ward DBE goals, however. to be socially and economically dis-
(4) You must determine the amount advantaged, and individuals concerning
of credit awarded to a firm for the pro- whom the presumption of disadvantage
visions of materials and supplies (e.g., has been rebutted, have the burden of
whether a firm is acting as a regular proving to you, by a preponderance of
dealer or a transaction expediter) on a the evidence, that they are socially and
contract-by-contract basis. economically disadvantaged. (See Ap-
(f) If a firm is not currently certified pendix E of this part.)
as a DBE in accordance with the stand- (e) You must make determinations
ards of subpart D of this part at the concerning whether individuals and
time of the execution of the contract, firms have met their burden of dem-
do not count the firm’s participation onstrating group membership, owner-
toward any DBE goals, except as pro- ship, control, and social and economic
vided for in § 26.87(i)). disadvantage (where disadvantage
(g) Do not count the dollar value of must be demonstrated on an individual
work performed under a contract with basis) by considering all the facts in
a firm after it has ceased to be cer- the record, viewed as a whole.
tified toward your overall goal.
(h) Do not count the participation of 35554, June 16, 2003]
a DBE subcontractor toward a contrac-
tor’s final compliance with its DBE ob- § 26.63 What rules govern group mem-
ligations on a contract until the bership determinations?
amount being counted has actually (a)(1) If, after reviewing the signed
been paid to the DBE. notarized statement of membership in
[64 FR 5126, Feb. 2, 1999, as amended at 65 FR a presumptively disadvantaged group
68951, Nov. 15, 2000; 68 FR 35554, June 16, 2003; (see § 26.61(c)), you have a well founded
79 FR 59595, Oct. 2, 2014] reason to question the individual’s
claim of membership in that group,
Subpart D—Certification Standards you must require the individual to
present additional evidence that he or
§ 26.61 How are burdens of proof allo- she is a member of the group.
cated in the certification process? (2) You must provide the individual a
(a) In determining whether to certify written explanation of your reasons for
a firm as eligible to participate as a questioning his or her group member-
DBE, you must apply the standards of ship and a written request for addi-
this subpart. tional evidence as outlined in para-
(b) The firm seeking certification has graph (b) of this section.
the burden of demonstrating to you, by (3) In implementing this section, you
a preponderance of the evidence, that must take special care to ensure that
it meets the requirements of this sub- you do not impose a disproportionate
part concerning group membership or burden on members of any particular
individual disadvantage, business size, designated group. Imposing a dis-
ownership, and control. proportionate burden on members of a
(c) You must rebuttably presume particular group could violate § 26.7(b)
that members of the designated groups and/or Title VI of the Civil Rights Act
identified in § 26.67(a) are socially and of 1964 and 49 CFR part 21.
economically disadvantaged. This (b) In making such a determination,
means they do not have the burden of you must consider whether the person
proving to you that they are socially has held himself out to be a member of
and economically disadvantaged. In the group over a long period of time
order to obtain the benefit of the re- prior to application for certification
buttable presumption, individuals must and whether the person is regarded as a
269
member of the group by the relevant found to be disadvantaged by the SBA,

community. You may require the ap- are socially and economically dis-
plicant to produce appropriate docu- advantaged individuals. You must re-
mentation of group membership. quire applicants to submit a signed, no-
(1) If you determine that an indi- tarized certification that each pre-
vidual claiming to be a member of a sumptively disadvantaged owner is, in
group presumed to be disadvantaged is fact, socially and economically dis-
not a member of a designated disadvan- advantaged.
taged group, the individual must dem- (2)(i) You must require each indi-
onstrate social and economic disadvan- vidual owner of a firm applying to par-
tage on an individual basis. ticipate as a DBE, whose ownership
(2) Your decisions concerning mem- and control are relied upon for DBE
bership in a designated group are sub- certification, to certify that he or she
ject to the certification appeals proce- has a personal net worth that does not
dure of § 26.89. exceed $1.32 million.
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR (ii) You must require each individual
35554, June 16, 2003] who makes this certification to sup-
port it with a signed, notarized state-
§ 26.65 What rules govern business size ment of personal net worth, with ap-
determinations? propriate supporting documentation.
(a) To be an eligible DBE, a firm (in- To meet this requirement, you must
cluding its affiliates) must be an exist- use the DOT personal net worth form
ing small business, as defined by Small provided in appendix G to this part
Business Administration (SBA) stand- without change or revision. Where nec-
ards. As a recipient, you must apply essary to accurately determine an indi-
current SBA business size standard(s) vidual’s personal net worth, you may,
found in 13 CFR part 121 appropriate to on a case-by-case basis, require addi-
the type(s) of work the firm seeks to tional financial information from the
perform in DOT-assisted contracts, in- owner of an applicant firm (e.g., infor-
cluding the primary industry classi- mation concerning the assets of the
fication of the applicant. owner’s spouse, where needed to clarify
(b) Even if it meets the requirements whether assets have been transferred
of paragraph (a) of this section, a firm to the spouse or when the owner’s
is not an eligible DBE in any Federal spouse is involved in the operation of
fiscal year if the firm (including its af- the company). Requests for additional
filiates) has had average annual gross information shall not be unduly bur-
receipts, as defined by SBA regulations densome or intrusive.
(see 13 CFR 121.402), over the firm’s pre- (iii) In determining an individual’s
vious three fiscal years, in excess of net worth, you must observe the fol-
$23.98 million. lowing requirements:
(c) The Department adjusts the num- (A) Exclude an individual’s ownership
ber in paragraph (b) of this section an- interest in the applicant firm;
nually using the Department of Com- (B) Exclude the individual’s equity in
merce price deflators for purchases by his or her primary residence (except
State and local governments as the any portion of such equity that is at-
basis for this adjustment. tributable to excessive withdrawals
[74 FR 15224, Apr. 3, 2009, as amended at 79 from the applicant firm). The equity is
FR 59596, Oct. 2, 2014] the market value of the residence less
any mortgages and home equity loan
§ 26.67 What rules determine social balances. Recipients must ensure that
and economic disadvantage? home equity loan balances are included
(a) Presumption of disadvantage. (1) in the equity calculation and not as a
You must rebuttably presume that separate liability on the individual’s
citizens of the United States (or law- personal net worth form. Exclusions
fully admitted permanent residents) for net worth purposes are not exclu-
who are women, Black Americans, His- sions for asset valuation or access to
panic Americans, Native Americans, capital and credit purposes.
Asian-Pacific Americans, Subcontinent (C) Do not use a contingent liability

Asian Americans, or other minorities to reduce an individual’s net worth.
270
(D) With respect to assets held in accumulate substantial wealth, the in-
vested pension plans, Individual Retire- dividual’s presumption of economic
ment Accounts, 401(k) accounts, or disadvantage is rebutted. In making
other retirement savings or investment this determination, as a certifying
programs in which the assets cannot be agency, you may consider factors that
distributed to the individual at the include, but are not limited to, the fol-
present time without significant ad- lowing:
verse tax or interest consequences, in- (1) Whether the average adjusted
clude only the present value of such as- gross income of the owner over the
sets, less the tax and interest penalties most recent three year period exceeds
that would accrue if the asset were dis- $350,000;
tributed at the present time. (2) Whether the income was unusual
(iv) Notwithstanding any provision of and not likely to occur in the future;
Federal or State law, you must not re-
(3) Whether the earnings were offset
lease an individual’s personal net
by losses;
worth statement nor any documents
pertaining to it to any third party (4) Whether the income was rein-
without the written consent of the sub- vested in the firm or used to pay taxes
mitter. Provided, that you must trans- arising in the normal course of oper-
mit this information to DOT in any ations by the firm;
certification appeal proceeding under (5) Other evidence that income is not
§ 26.89 of this part or to any other State indicative of lack of economic dis-
to which the individual’s firm has ap- advantage; and
plied for certification under § 26.85 of (6) Whether the total fair market
this part. value of the owner’s assets exceed $6
(b) Rebuttal of presumption of dis- million.
advantage. (1) An individual’s presump- (B) You must have a proceeding
tion of economic disadvantage may be under paragraph (b)(2) of this section in
rebutted in two ways. order to rebut the presumption of eco-
(i) If the statement of personal net nomic disadvantage in this case.
worth and supporting documentation (2) If you have a reasonable basis to
that an individual submits under para- believe that an individual who is a
graph (a)(2) of this section shows that member of one of the designated groups
the individual’s personal net worth ex- is not, in fact, socially and/or economi-
ceeds $1.32 million, the individual’s cally disadvantaged you may, at any
presumption of economic disadvantage time, start a proceeding to determine
is rebutted. You are not required to whether the presumption should be re-
have a proceeding under paragraph garded as rebutted with respect to that
(b)(2) of this section in order to rebut individual. Your proceeding must fol-
the presumption of economic disadvan- low the procedures of § 26.87.
tage in this case. (3) In such a proceeding, you have the
Example to paragraph (b)(1)(i): An individual burden of demonstrating, by a prepon-
with very high assets and significant liabil- derance of the evidence, that the indi-
ities may, in accounting terms, have a PNW vidual is not socially and economically
of less than $1.32 million. However, the per- disadvantaged. You may require the in-
son’s assets collectively (e.g., high income dividual to produce information rel-
level, a very expensive house, a yacht, exten-
evant to the determination of his or
sive real or personal property holdings) may
lead a reasonable person to conclude that he her disadvantage.
or she is not economically disadvantaged. (4) When an individual’s presumption
The recipient may rebut the individual’s pre- of social and/or economic disadvantage
sumption of economic disadvantage under has been rebutted, his or her ownership
these circumstances, as provided in this sec- and control of the firm in question can-
tion, even though the individual’s PNW is not be used for purposes of DBE eligi-
less than $1.32 million.
bility under this subpart unless and
(ii)(A) If the statement of personal until he or she makes an individual
net worth and supporting documenta- showing of social and/or economic dis-
tion that an individual submits under advantage. If the basis for rebutting
paragraph (a)(2) of this section dem- the presumption is a determination

onstrates that the individual is able to that the individual’s personal net
271
worth exceeds $1.32 million, the indi- quire that applicants provide sufficient
vidual is no longer eligible for partici- information to permit determinations
pation in the program and cannot re- under the guidance of appendix E of
gain eligibility by making an indi- this part.
vidual showing of disadvantage, so long
[79 FR 59596, Oct. 2, 2014]
as his or her PNW remains above that
amount. § 26.69 What rules govern determina-
(c) Transfers within two years. (1) Ex- tions of ownership?
cept as set forth in paragraph (c)(2) of
this section, recipients must attribute (a) In determining whether the so-
to an individual claiming disadvan- cially and economically disadvantaged
taged status any assets which that in- participants in a firm own the firm,
dividual has transferred to an imme- you must consider all the facts in the
diate family member, to a trust a bene- record viewed as a whole, including the
ficiary of which is an immediate family origin of all assets and how and when
member, or to the applicant firm for they were used in obtaining the firm.
less than fair market value, within two All transactions for the establishment
years prior to a concern’s application and ownership (or transfer of owner-
for participation in the DBE program ship) must be in the normal course of
or within two years of recipient’s re- business, reflecting commercial and
view of the firm’s annual affidavit, un- arms-length practices.
less the individual claiming disadvan- (b) To be an eligible DBE, a firm
taged status can demonstrate that the must be at least 51 percent owned by
transfer is to or on behalf of an imme- socially and economically disadvan-
diate family member for that individ- taged individuals.
ual’s education, medical expenses, or (1) In the case of a corporation, such
some other form of essential support. individuals must own at least 51 per-
(2) Recipients must not attribute to cent of the each class of voting stock
an individual claiming disadvantaged outstanding and 51 percent of the ag-
status any assets transferred by that gregate of all stock outstanding.
individual to an immediate family (2) In the case of a partnership, 51
member that are consistent with the percent of each class of partnership in-
customary recognition of special occa- terest must be owned by socially and
sions, such as birthdays, graduations, economically disadvantaged individ-
anniversaries, and retirements. uals. Such ownership must be reflected
(d) Individual determinations of social in the firm’s partnership agreement.
and economic disadvantage. Firms (3) In the case of a limited liability
owned and controlled by individuals company, at least 51 percent of each
who are not presumed to be socially class of member interest must be
and economically disadvantaged (in- owned by socially and economically
cluding individuals whose presumed disadvantaged individuals.
disadvantage has been rebutted) may
(c)(1) The firm’s ownership by so-
apply for DBE certification. You must
cially and economically disadvantaged
make a case-by-case determination of
individuals, including their contribu-
whether each individual whose owner-
tion of capital or expertise to acquire
ship and control are relied upon for
their ownership interests, must be real,
DBE certification is socially and eco-
substantial, and continuing, going be-
nomically disadvantaged. In such a
yond pro forma ownership of the firm
proceeding, the applicant firm has the
as reflected in ownership documents.
burden of demonstrating to you, by a
Proof of contribution of capital should
preponderance of the evidence, that the
be submitted at the time of the appli-
individuals who own and control it are
cation. When the contribution of cap-
socially and economically disadvan-
ital is through a loan, there must be
taged. An individual whose personal
documentation of the value of assets
net worth exceeds $1.32 million shall
used as collateral for the loan.
not be deemed to be economically dis-
advantaged. In making these deter- (2) Insufficient contributions include
minations, use the guidance found in a promise to contribute capital, an un-

Appendix E of this part. You must re- secured note payable to the firm or an
272
owner who is not a disadvantaged indi- making, and daily operational activi-
vidual, mere participation in a firm’s ties of the firm. Assets held in a rev-
activities as an employee, or capital- ocable living trust may be counted
ization not commensurate with the only in the situation where the same
value for the firm. disadvantaged individual is the sole
(3) The disadvantaged owners must grantor, beneficiary, and trustee.
enjoy the customary incidents of own- (e) The contributions of capital or ex-
ership, and share in the risks and be pertise by the socially and economi-
entitled to the profits and loss com- cally disadvantaged owners to acquire
mensurate with their ownership inter- their ownership interests must be real
ests, as demonstrated by the substance, and substantial. Examples of insuffi-
not merely the form, of arrangements. cient contributions include a promise
Any terms or practices that give a non- to contribute capital, an unsecured
disadvantaged individual or firm a pri- note payable to the firm or an owner
ority or superior right to a firm’s prof- who is not a disadvantaged individual,
its, compared to the disadvantaged or mere participation in a firm’s ac-
owner(s), are grounds for denial. tivities as an employee. Debt instru-
(4) Debt instruments from financial ments from financial institutions or
institutions or other organizations other organizations that lend funds in
that lend funds in the normal course of the normal course of their business do
their business do not render a firm in- not render a firm ineligible, even if the
eligible, even if the debtor’s ownership debtor’s ownership interest is security
interest is security for the loan. for the loan.
Examples to paragraph (c): (i) An individual (f) The following requirements apply
pays $100 to acquire a majority interest in a to situations in which expertise is re-
firm worth $1 million. The individual’s con- lied upon as part of a disadvantaged
tribution to capital would not be viewed as owner’s contribution to acquire owner-
substantial. ship:
(ii) A 51% disadvantaged owner and a non- (1) The owner’s expertise must be—
disadvantaged 49% owner contribute $100 and (i) In a specialized field;
$10,000, respectively, to acquire a firm
(ii) Of outstanding quality;
grossing $1 million. This may be indicative
of a pro forma arrangement that does not (iii) In areas critical to the firm’s op-
meet the requirements of (c)(1). erations;
(iii) The disadvantaged owner of a DBE ap- (iv) Indispensable to the firm’s poten-
plicant firm spends $250 to file articles of in- tial success;
corporation and obtains a $100,000 loan, but (v) Specific to the type of work the
makes only nominal or sporadic payments to firm performs; and
repay the loan. This type of contribution is (vi) Documented in the records of the
not of a continuing nature.
firm. These records must clearly show
(d) All securities that constitute the contribution of expertise and its
ownership of a firm shall be held di- value to the firm.
rectly by disadvantaged persons. Ex- (2) The individual whose expertise is
cept as provided in this paragraph (d), relied upon must have a significant fi-
no securities or assets held in trust, or nancial investment in the firm.
by any guardian for a minor, are con- (g) You must always deem as held by
sidered as held by disadvantaged per- a socially and economically disadvan-
sons in determining the ownership of a taged individual, for purposes of deter-
firm. However, securities or assets held mining ownership, all interests in a
in trust are regarded as held by a dis- business or other assets obtained by
advantaged individual for purposes of the individual—
determining ownership of the firm, if— (1) As the result of a final property
(1) The beneficial owner of securities settlement or court order in a divorce
or assets held in trust is a disadvan- or legal separation, provided that no
taged individual, and the trustee is the term or condition of the agreement or
same or another such individual; or divorce decree is inconsistent with this
(2) The beneficial owner of a trust is section; or
a disadvantaged individual who, rather (2) Through inheritance, or otherwise
than the trustee, exercises effective because of the death of the former
control over the management, policy- owner.
273
(h)(1) You must presume as not being spouse’s rights in the jointly owned or
held by a socially and economically community assets used to acquire an
disadvantaged individual, for purposes ownership interest in the firm must be
of determining ownership, all interests included as part of the firm’s applica-
in a business or other assets obtained tion for DBE certification.
by the individual as the result of a gift, (j) You may consider the following
or transfer without adequate consider- factors in determining the ownership of
ation, from any non-disadvantaged in- a firm. However, you must not regard a
dividual or non-DBE firm who is— contribution of capital as failing to be
(i) Involved in the same firm for real and substantial, or find a firm in-
which the individual is seeking certifi- eligible, solely because—
cation, or an affiliate of that firm; (1) A socially and economically dis-
(ii) Involved in the same or a similar advantaged individual acquired his or
line of business; or her ownership interest as the result of
(iii) Engaged in an ongoing business a gift, or transfer without adequate
relationship with the firm, or an affil- consideration, other than the types set
iate of the firm, for which the indi- forth in paragraph (h) of this section;
vidual is seeking certification. (2) There is a provision for the co-sig-
(2) To overcome this presumption and nature of a spouse who is not a socially
permit the interests or assets to be and economically disadvantaged indi-
counted, the disadvantaged individual vidual on financing agreements, con-
must demonstrate to you, by clear and tracts for the purchase or sale of real
convincing evidence, that— or personal property, bank signature
(i) The gift or transfer to the dis- cards, or other documents; or
advantaged individual was made for (3) Ownership of the firm in question
reasons other than obtaining certifi- or its assets is transferred for adequate
cation as a DBE; and consideration from a spouse who is not
(ii) The disadvantaged individual ac- a socially and economically disadvan-
tually controls the management, pol- taged individual to a spouse who is
icy, and operations of the firm, not- such an individual. In this case, you
withstanding the continuing participa- must give particularly close and care-
tion of a non-disadvantaged individual ful scrutiny to the ownership and con-
who provided the gift or transfer. trol of a firm to ensure that it is owned
(i) You must apply the following and controlled, in substance as well as
rules in situations in which marital as- in form, by a socially and economically
sets form a basis for ownership of a disadvantaged individual.
firm:
(1) When marital assets (other than [64 FR 5126, Feb. 2, 1999, as amended at 79 FR
the assets of the business in question), 59597, Oct. 2, 2014]
held jointly or as community property
by both spouses, are used to acquire § 26.71 What rules govern determina-
tions concerning control?
the ownership interest asserted by one
spouse, you must deem the ownership (a) In determining whether socially
interest in the firm to have been ac- and economically disadvantaged own-
quired by that spouse with his or her ers control a firm, you must consider
own individual resources, provided that all the facts in the record, viewed as a
the other spouse irrevocably renounces whole.
and transfers all rights in the owner- (b) Only an independent business may
ship interest in the manner sanctioned be certified as a DBE. An independent
by the laws of the state in which either business is one the viability of which
spouse or the firm is domiciled. You do does not depend on its relationship
not count a greater portion of joint or with another firm or firms.
community property assets toward (1) In determining whether a poten-
ownership than state law would recog- tial DBE is an independent business,
nize as belonging to the socially and you must scrutinize relationships with
economically disadvantaged owner of non-DBE firms, in such areas as per-
the applicant firm. sonnel, facilities, equipment, financial
(2) A copy of the document legally and/or bonding support, and other re-
transferring and renouncing the other sources.
274
(2) You must consider whether (3) In a partnership, one or more dis-
present or recent employer/employee advantaged owners must serve as gen-
relationships between the disadvan- eral partners, with control over all
taged owner(s) of the potential DBE partnership decisions.
and non-DBE firms or persons associ- (e) Individuals who are not socially
ated with non-DBE firms compromise and economically disadvantaged or im-
the independence of the potential DBE mediate family members may be in-
firm. volved in a DBE firm as owners, man-
(3) You must examine the firm’s rela- agers, employees, stockholders, offi-
tionships with prime contractors to de- cers, and/or directors. Such individuals
termine whether a pattern of exclusive must not, however possess or exercise
or primary dealings with a prime con- the power to control the firm, or be
tractor compromises the independence disproportionately responsible for the
of the potential DBE firm. operation of the firm.
(4) In considering factors related to (f) The socially and economically dis-
the independence of a potential DBE advantaged owners of the firm may del-
firm, you must consider the consist- egate various areas of the manage-
ency of relationships between the po- ment, policymaking, or daily oper-
tential DBE and non-DBE firms with ations of the firm to other participants
normal industry practice. in the firm, regardless of whether these
(c) A DBE firm must not be subject participants are socially and economi-
to any formal or informal restrictions cally disadvantaged individuals. Such
which limit the customary discretion delegations of authority must be rev-
of the socially and economically dis- ocable, and the socially and economi-
advantaged owners. There can be no re- cally disadvantaged owners must re-
strictions through corporate charter tain the power to hire and fire any per-
provisions, by-law provisions, con- son to whom such authority is dele-
tracts or any other formal or informal gated. The managerial role of the so-
devices (e.g., cumulative voting rights, cially and economically disadvantaged
voting powers attached to different owners in the firm’s overall affairs
classes of stock, employment con- must be such that the recipient can
tracts, requirements for concurrence reasonably conclude that the socially
by non-disadvantaged partners, condi- and economically disadvantaged own-
tions precedent or subsequent, execu- ers actually exercise control over the
tory agreements, voting trusts, restric- firm’s operations, management, and
tions on or assignments of voting policy.
rights) that prevent the socially and (g) The socially and economically
economically disadvantaged owners, disadvantaged owners must have an
without the cooperation or vote of any overall understanding of, and manage-
non-disadvantaged individual, from rial and technical competence and ex-
making any business decision of the perience directly related to, the type of
firm. This paragraph does not preclude business in which the firm is engaged
a spousal co-signature on documents as and the firm’s operations. The socially
provided for in § 26.69(j)(2). and economically disadvantaged own-
(d) The socially and economically ers are not required to have experience
disadvantaged owners must possess the or expertise in every critical area of
power to direct or cause the direction the firm’s operations, or to have great-
of the management and policies of the er experience or expertise in a given
firm and to make day-to-day as well as field than managers or key employees.
long-term decisions on matters of man- The socially and economically dis-
agement, policy and operations. advantaged owners must have the abil-
(1) A disadvantaged owner must hold ity to intelligently and critically
the highest officer position in the com- evaluate information presented by
pany (e.g., chief executive officer or other participants in the firm’s activi-
president). ties and to use this information to
(2) In a corporation, disadvantaged make independent decisions concerning
owners must control the board of direc- the firm’s daily operations, manage-
tors. ment, and policymaking. Generally,
275
expertise limited to office manage- gage in outside employment or other

ment, administration, or bookkeeping business interests that conflict with
functions unrelated to the principal the management of the firm or prevent
business activities of the firm is insuf- the individual from devoting sufficient
ficient to demonstrate control. time and attention to the affairs of the
(h) If state or local law requires the firm to control its activities. For ex-
persons to have a particular license or ample, absentee ownership of a busi-
other credential in order to own and/or ness and part-time work in a full-time
control a certain type of firm, then the firm are not viewed as constituting
socially and economically disadvan- control. However, an individual could
taged persons who own and control a be viewed as controlling a part-time
potential DBE firm of that type must business that operates only on eve-
possess the required license or creden- nings and/or weekends, if the indi-
tial. If state or local law does not re- vidual controls it all the time it is op-
quire such a person to have such a li- erating.
cense or credential to own and/or con- (k)(1) A socially and economically
trol a firm, you must not deny certifi- disadvantaged individual may control
cation solely on the ground that the a firm even though one or more of the
person lacks the license or credential. individual’s immediate family mem-
However, you may take into account bers (who themselves are not socially
the absence of the license or credential and economically disadvantaged indi-
as one factor in determining whether viduals) participate in the firm as a
the socially and economically dis- manager, employee, owner, or in an-
advantaged owners actually control other capacity. Except as otherwise
the firm. provided in this paragraph, you must
(i)(1) You may consider differences in make a judgment about the control the
remuneration between the socially and socially and economically disadvan-
economically disadvantaged owners taged owner exercises vis-a-vis other
and other participants in the firm in persons involved in the business as you
determining whether to certify a firm do in other situations, without regard
as a DBE. Such consideration shall be to whether or not the other persons are
in the context of the duties of the per- immediate family members.
sons involved, normal industry prac- (2) If you cannot determine that the
tices, the firm’s policy and practice socially and economically disadvan-
concerning reinvestment of income, taged owners—as distinct from the
and any other explanations for the dif- family as a whole—control the firm,
ferences proffered by the firm. You then the socially and economically dis-
may determine that a firm is con- advantaged owners have failed to carry
trolled by its socially and economi- their burden of proof concerning con-
cally disadvantaged owner although trol, even though they may participate
that owner’s remuneration is lower significantly in the firm’s activities.
than that of some other participants in (l) Where a firm was formerly owned
the firm. and/or controlled by a non-disadvan-
(2) In a case where a non-disadvantaged individual (whether or not an im-
taged individual formerly controlled mediate family member), ownership
the firm, and a socially and economi- and/or control were transferred to a so-
cally disadvantaged individual now cially and economically disadvantaged
controls it, you may consider a dif- individual, and the nondisadvantaged
ference between the remuneration of individual remains involved with the
the former and current controller of firm in any capacity, there is a rebut-
the firm as a factor in determining who table presumption of control by the
controls the firm, particularly when non-disadvantaged individual unless
the non-disadvantaged individual re- the disadvantaged individual now own-
mains involved with the firm and con- ing the firm demonstrates to you, by
tinues to receive greater compensation clear and convincing evidence, that:
than the disadvantaged individual. (1) The transfer of ownership and/or
(j) In order to be viewed as control- control to the disadvantaged individual
ling a firm, a socially and economi- was made for reasons other than ob-
cally disadvantaged owner cannot en- taining certification as a DBE; and
276
(2) The disadvantaged individual ac- in a manner consistent with this para-
tually controls the management, pol- graph (a)(1), you must update the Di-
icy, and operations of the firm, not- rectory entry for that firm to meet the
withstanding the continuing participa- requirements of this paragraph (a)(1)
tion of a nondisadvantaged individual by August 28, 2011.
who formerly owned and/or controlled (2) Firms and recipients must check
the firm. carefully to make sure that the NAICS
(m) In determining whether a firm is codes cited in a certification are kept
controlled by its socially and economi- up-to-date and accurately reflect work
cally disadvantaged owners, you may which the UCP has determined the
consider whether the firm owns equip- firm’s owners can control. The firm
ment necessary to perform its work. bears the burden of providing detailed
However, you must not determine that company information the certifying
a firm is not controlled by socially and agency needs to make an appropriate
economically disadvantaged individ- NAICS code designation.
uals solely because the firm leases, (3) If a firm believes that there is not
rather than owns, such equipment, a NAICS code that fully or clearly de-
where leasing equipment is a normal scribes the type(s) of work in which it
industry practice and the lease does is seeking to be certified as a DBE, the
not involve a relationship with a prime firm may request that the certifying
contractor or other party that com- agency, in its certification documenta-
promises the independence of the firm. tion, supplement the assigned NAICS
(n) You must grant certification to a code(s) with a clear, specific, and de-
firm only for specific types of work in tailed narrative description of the type
which the socially and economically of work in which the firm is certified.
disadvantaged owners have the ability A vague, general, or confusing descrip-
to control the firm. To become cer- tion is not sufficient for this purpose,
tified in an additional type of work, and recipients should not rely on such
the firm need demonstrate to you only a description in determining whether a
that its socially and economically dis- firm’s participation can be counted to-
advantaged owners are able to control ward DBE goals.
the firm with respect to that type of (4) A certifier is not precluded from
work. You must not require that the changing a certification classification
firm be recertified or submit a new ap- or description if there is a factual basis
plication for certification, but you in the record. However, certifiers must
must verify the disadvantaged owner’s not make after-the-fact statements
control of the firm in the additional about the scope of a certification, not
type of work. supported by evidence in the record of
(1) The types of work a firm can per- the certification action.
form (whether on initial certification (o) A business operating under a fran-
or when a new type of work is added) chise or license agreement may be cer-
must be described in terms of the most tified if it meets the standards in this
specific available NAICS code for that subpart and the franchiser or licenser
type of work. If you choose, you may is not affiliated with the franchisee or
also, in addition to applying the appro- licensee. In determining whether affili-
priate NAICS code, apply a descriptor ation exists, you should generally not
from a classification scheme of equiva- consider the restraints relating to
lent detail and specificity. A correct standardized quality, advertising, ac-
NAICS code is one that describes, as counting format, and other provisions
specifically as possible, the principal imposed on the franchisee or licensee
goods or services which the firm would by the franchise agreement or license,
provide to DOT recipients. Multiple provided that the franchisee or licensee
NAICS codes may be assigned where has the right to profit from its efforts
appropriate. Program participants and bears the risk of loss commensu-
must rely on, and not depart from, the rate with ownership. Alternatively,
plain meaning of NAICS code descrip- even though a franchisee or licensee
tions in determining the scope of a may not be controlled by virtue of such
firm’s certification. If your Directory provisions in the franchise agreement

does not list types of work for any firm or license, affiliation could arise
277
through other means, such as common viduals at some time in the past, if the
management or excessive restrictions firm currently meets the ownership
on the sale or transfer of the franchise and control standards of this part.
interest or license. (2) You must not refuse to certify a
(p) In order for a partnership to be firm solely on the basis that it is a
controlled by socially and economi- newly formed firm, has not completed
cally disadvantaged individuals, any projects or contracts at the time of its
non-disadvantaged partners must not application, has not yet realized profits
have the power, without the specific from its activities, or has not dem-
written concurrence of the socially and onstrated a potential for success. If the
economically disadvantaged partner(s), firm meets disadvantaged, size, owner-
to contractually bind the partnership ship, and control requirements of this
or subject the partnership to contract Part, the firm is eligible for certifi-
or tort liability. cation.
(q) The socially and economically (c) DBE firms and firms seeking DBE
disadvantaged individuals controlling a certification shall cooperate fully with
firm may use an employee leasing com- your requests (and DOT requests) for
pany. The use of such a company does information relevant to the certifi-
not preclude the socially and economi- cation process. Failure or refusal to
cally disadvantaged individuals from provide such information is a ground
controlling their firm if they continue for a denial or removal of certification.
to maintain an employer-employee re- (d) Only firms organized for profit
lationship with the leased employees. may be eligible DBEs. Not-for-profit
This includes being responsible for hir- organizations, even though controlled
ing, firing, training, assigning, and by socially and economically disadvan-
otherwise controlling the on-the-job taged individuals, are not eligible to be
activities of the employees, as well as certified as DBEs.
ultimate responsibility for wage and (e) An eligible DBE firm must be
tax obligations related to the employ- owned by individuals who are socially
ees. and economically disadvantaged. Ex-
cept as provided in this paragraph, a
5099, Jan. 28, 2011; 79 FR 59597, Oct. 2, 2014] firm that is not owned by such individ-
uals, but instead is owned by another
§ 26.73 What are other rules affecting firm—even a DBE firm—cannot be an
certification? eligible DBE.
(a)(1) Consideration of whether a firm (1) If socially and economically dis-
performs a commercially useful func- advantaged individuals own and con-
tion or is a regular dealer pertains trol a firm through a parent or holding
solely to counting toward DBE goals company, established for tax, capital-
the participation of firms that have al- ization or other purposes consistent
ready been certified as DBEs. Except as with industry practice, and the parent
provided in paragraph (a)(2) of this sec- or holding company in turn owns and
tion, you must not consider commer- controls an operating subsidiary, you
cially useful function issues in any way may certify the subsidiary if it other-
in making decisions about whether to wise meets all requirements of this
certify a firm as a DBE. subpart. In this situation, the indi-
(2) You may consider, in making cer- vidual owners and controllers of the
tification decisions, whether a firm has parent or holding company are deemed
exhibited a pattern of conduct indi- to control the subsidiary through the
cating its involvement in attempts to parent or holding company.
evade or subvert the intent or require- (2) You may certify such a subsidiary
ments of the DBE program. only if there is cumulatively 51 percent
(b)(1) You must evaluate the eligi- ownership of the subsidiary by socially
bility of a firm on the basis of present and economically disadvantaged indi-
circumstances. You must not refuse to viduals. The following examples illus-
certify a firm based solely on historical trate how this cumulative ownership
information indicating a lack of owner- provision works:
ship or control of the firm by socially Example 1: Socially and economically dis-
and economically disadvantaged indi- advantaged individuals own 100 percent of a
278
holding company, which has a wholly-owned (1) Notwithstanding any other provi-
subsidiary. The subsidiary may be certified, sions of this subpart, a direct or indi-
if it meets all other requirements.
Example 2: Disadvantaged individuals own
rect subsidiary corporation, joint ven-
100 percent of the holding company, which ture, or partnership entity of an ANC is
owns 51 percent of a subsidiary. The sub- eligible for certification as a DBE if it
sidiary may be certified, if all other require- meets all of the following require-
ments are met. ments:
Example 3: Disadvantaged individuals own
80 percent of the holding company, which in
(i) The Settlement Common Stock of
turn owns 70 percent of a subsidiary. In this the underlying ANC and other stock of
case, the cumulative ownership of the sub- the ANC held by holders of the Settle-
sidiary by disadvantaged individuals is 56 ment Common Stock and by Natives
percent (80 percent of the 70 percent). This is and descendents of Natives represents a
more than 51 percent, so you may certify the
majority of both the total equity of the
subsidiary, if all other requirements are met.
Example 4: Same as Example 2 or 3, but ANC and the total voting power of the
someone other than the socially and eco- corporation for purposes of electing di-
nomically disadvantaged owners of the par- rectors;
ent or holding company controls the sub- (ii) The shares of stock or other units
sidiary. Even though the subsidiary is owned
of common ownership interest in the
by disadvantaged individuals, through the
holding or parent company, you cannot cer- subsidiary, joint venture, or partner-
tify it because it fails to meet control re- ship entity held by the ANC and by
quirements. holders of its Settlement Common
Example 5: Disadvantaged individuals own Stock represent a majority of both the
60 percent of the holding company, which in
total equity of the entity and the total
turn owns 51 percent of a subsidiary. In this
case, the cumulative ownership of the sub- voting power of the entity for the pur-
sidiary by disadvantaged individuals is about pose of electing directors, the general
31 percent. This is less than 51 percent, so partner, or principal officers; and
you cannot certify the subsidiary. (iii) The subsidiary, joint venture, or
Example 6: The holding company, in addi-
partnership entity has been certified
tion to the subsidiary seeking certification,
owns several other companies. The combined by the Small Business Administration
gross receipts of the holding companies and under the 8(a) or small disadvantaged
its subsidiaries are greater than the size business program.
standard for the subsidiary seeking certifi- (2) As a recipient to whom an ANC-
cation and/or the gross receipts cap of
related entity applies for certification,
§ 26.65(b). Under the rules concerning affili-
ation, the subsidiary fails to meet the size you do not use the DOT uniform appli-
standard and cannot be certified. cation form (see Appendix F of this
part). You must obtain from the firm
(f) Recognition of a business as a sep-
documentation sufficient to dem-
arate entity for tax or corporate pur-
poses is not necessarily sufficient to onstrate that entity meets the require-
demonstrate that a firm is an inde- ments of paragraph (i)(1) of this sec-
pendent business, owned and controlled tion. You must also obtain sufficient
by socially and economically disadvan- information about the firm to allow
taged individuals. you to administer your program (e.g.,
(g) You must not require a DBE firm information that would appear in your
to be prequalified as a condition for DBE Directory).
certification. (3) If an ANC-related firm does not
(h) A firm that is owned by an Indian meet all the conditions of paragraph
tribe or Native Hawaiian organization, (i)(1) of this section, then it must meet
rather than by Indians or Native Ha- the requirements of paragraph (h) of
waiians as individuals, may be eligible this section in order to be certified, on
for certification. Such a firm must the same basis as firms owned by In-
meet the size standards of § 26.65. Such dian Tribes or Native Hawaiian Organi-
a firm must be controlled by socially zations.
and economically disadvantaged indi-
viduals, as provided in § 26.71. [64 FR 5126, Feb. 2, 1999, as amended at 68 FR
(i) The following special rules apply 35555, June 16, 2003; 76 FR 5099, Jan. 28, 2011;
to the certification of firms related to 79 FR 59598, Oct. 2, 2014]

Alaska Native Corporations (ANCs).
279
Subpart E—Certification planation, or the explanation does not

Procedures justify the failure to meet the dead-
line, the Secretary shall direct you to
§ 26.81 What are the requirements for complete the required action by a date
Unified Certification Programs? certain. If you and the other recipients
(a) You and all other DOT recipients fail to carry out this direction in a
in your state must participate in a timely manner, you are collectively in
Unified Certification Program (UCP). noncompliance with this part.
(1) Within three years of March 4, (b) The UCP shall make all certifi-
1999, you and the other recipients in cation decisions on behalf of all DOT
your state must sign an agreement es- recipients in the state with respect to
tablishing the UCP for that state and participation in the DOT DBE Pro-
submit the agreement to the Secretary gram.
for approval. The Secretary may, on (1) Certification decisions by the UCP
the basis of extenuating circumstances shall be binding on all DOT recipients
shown by the recipients in the state, within the state.
extend this deadline for no more than (2) The UCP shall provide ‘‘one-stop
one additional year. shopping’’ to applicants for certifi-
(2) The agreement must provide for cation, such that an applicant is re-
the establishment of a UCP meeting all quired to apply only once for a DBE
the requirements of this section. The certification that will be honored by
agreement must specify that the UCP all recipients in the state.
will follow all certification procedures
(3) All obligations of recipients with
and standards of this part, on the same
respect to certification and non-
basis as recipients; that the UCP shall
discrimination must be carried out by
cooperate fully with oversight, review,
UCPs, and recipients may use only
and monitoring activities of DOT and
UCPs that comply with the certifi-
its operating administrations; and that
cation and nondiscrimination require-
the UCP shall implement DOT direc-
ments of this part.
tives and guidance concerning certifi-
cation matters. The agreement shall (c) All certifications by UCPs shall
also commit recipients to ensuring be pre-certifications; i.e., certifications
that the UCP has sufficient resources that have been made final before the
and expertise to carry out the require- due date for bids or offers on a contract
ments of this part. The agreement on which a firm seeks to participate as
shall include an implementation sched- a DBE.
ule ensuring that the UCP is fully oper- (d) A UCP is not required to process
ational no later than 18 months fol- an application for certification from a
lowing the approval of the agreement firm having its principal place of busi-
by the Secretary. ness outside the state if the firm is not
(3) Subject to approval by the Sec- certified by the UCP in the state in
retary, the UCP in each state may take which it maintains its principal place
any form acceptable to the recipients of business. The ‘‘home state’’ UCP
in that state. shall share its information and docu-
(4) The Secretary shall review the ments concerning the firm with other
UCP and approve it, disapprove it, or UCPs that are considering the firm’s
remand it to the recipients in the state application.
for revisions. A complete agreement (e) Subject to DOT approval as pro-
which is not disapproved or remanded vided in this section, the recipients in
within 180 days of its receipt is deemed two or more states may form a re-
to be accepted. gional UCP. UCPs may also enter into
(5) If you and the other recipients in written reciprocity agreements with
your state fail to meet the deadlines other UCPs. Such an agreement shall
set forth in this paragraph (a), you outline the specific responsibilities of
shall have the opportunity to make an each participant. A UCP may accept
explanation to the Secretary why a the certification of any other UCP or
deadline could not be met and why DOT recipient.
meeting the deadline was beyond your (f) Pending the establishment of
control. If you fail to make such an ex- UCPs meeting the requirements of this
280
section, you may enter into agree- rely upon the site visit report of any
ments with other recipients, on a re- other recipient with respect to a firm
gional or inter-jurisdictional basis, to applying for certification;
perform certification functions re- (ii) Analyze documentation related to
quired by this part. You may also grant the legal structure, ownership, and
reciprocity to other recipient’s certifi- control of the applicant firm. This in-
cation decisions. cludes, but is not limited to, Articles of
(g) Each UCP shall maintain a uni- Incorporation/Organization; corporate
fied DBE directory containing, for all by-laws or operating agreements; orga-
firms certified by the UCP (including nizational, annual and board/member
those from other states certified under meeting records; stock ledgers and cer-
the provisions of this part), the infor- tificates; and State-issued Certificates
mation required by § 26.31. The UCP of Good Standing
shall make the directory available to (iii) Analyze the bonding and finan-
the public electronically, on the inter- cial capacity of the firm; lease and
net, as well as in print. The UCP shall loan agreements; bank account signa-
update the electronic version of the di- ture cards;
rectory by including additions, dele- (iv) Determine the work history of
tions, and other changes as soon as the firm, including contracts it has re-
they are made and shall revise the ceived, work it has completed; and pay-
print version of the Directory at least roll records;
once a year. (v) Obtain a statement from the firm
(h) Except as otherwise specified in of the type of work it prefers to per-
this section, all provisions of this sub- form as part of the DBE program and
part and subpart D of this part per- its preferred locations for performing
taining to recipients also apply to the work, if any.
UCPs. (vi) Obtain or compile a list of the
[64 FR 5126, Feb. 2, 1999, as amended at 76 FR equipment owned by or available to the
5100, Jan. 28, 2011] firm and the licenses the firm and its
key personnel possess to perform the
§ 26.83 What procedures do recipients work it seeks to do as part of the DBE
follow in making certification deci- program;
sions? (vii) Obtain complete Federal income
(a) You must ensure that only firms tax returns (or requests for extensions)
certified as eligible DBEs under this filed by the firm, its affiliates, and the
section participate as DBEs in your socially and economically disadvan-
program. taged owners for the last 3 years. A
(b) You must determine the eligi- complete return includes all forms,
bility of firms as DBEs consistent with schedules, and statements filed with
the standards of subpart D of this part. the Internal Revenue Service.
When a UCP is formed, the UCP must (viii) Require potential DBEs to com-
meet all the requirements of subpart D plete and submit an appropriate appli-
of this part and this subpart that re- cation form, except as otherwise pro-
cipients are required to meet. vided in § 26.85 of this part.
(c)(1) You must take all the following (2) You must use the application
steps in determining whether a DBE form provided in Appendix F to this
firm meets the standards of subpart D part without change or revision. How-
of this part: ever, you may provide in your DBE
(i) Perform an on-site visit to the program, with the written approval of
firm’s principal place of business. You the concerned operating administra-
must interview the principal officers tion, for supplementing the form by re-
and review their résumés and/or work questing specified additional informa-
histories. You may interview key per- tion not inconsistent with this part.
sonnel of the firm if necessary. You (3) You must make sure that the ap-
must also perform an on-site visit to plicant attests to the accuracy and
job sites if there are such sites on truthfulness of the information on the
which the firm is working at the time application form. This shall be done ei-
of the eligibility investigation in your ther in the form of an affidavit sworn

jurisdiction or local area. You may to by the applicant before a person who
281
is authorized by State law to admin- (i) If you are a DBE, you must inform
ister oaths or in the form of an the recipient or UCP in writing of any
unsworn declaration executed under change in circumstances affecting your
penalty of perjury of the laws of the ability to meet size, disadvantaged sta-
United States. tus, ownership, or control require-
(4) You must review all information ments of this part or any material
on the form prior to making a decision change in the information provided in
about the eligibility of the firm. You your application form.
may request clarification of informa- (1) Changes in management responsi-
tion contained in the application at bility among members of a limited li-
any time in the application process. ability company are covered by this re-
(d) When another recipient, in con- quirement.
nection with its consideration of the (2) You must attach supporting docu-
eligibility of a firm, makes a written mentation describing in detail the na-
request for certification information ture of such changes.
you have obtained about that firm
(3) The notice must take the form of
(e.g., including application materials
an affidavit sworn to by the applicant
or the report of a site visit, if you have
before a person who is authorized by
made one to the firm), you must
state law to administer oaths or of an
promptly make the information avail-
unsworn declaration executed under
able to the other recipient.
penalty of perjury of the laws of the
(e) [Reserved]
United States. You must provide the
(f) Subject to the approval of the con-
written notification within 30 days of
cerned operating administration as
the occurrence of the change. If you
part of your DBE program, you may
fail to make timely notification of
impose a reasonable application fee for
certification. Fee waivers shall be such a change, you will be deemed to
made in appropriate cases. have failed to cooperate under
(g) You must safeguard from disclo- § 26.109(c).
sure to unauthorized persons informa- (j) If you are a DBE, you must pro-
tion gathered as part of the certifi- vide to the recipient, every year on the
cation process that may reasonably be anniversary of the date of your certifi-
regarded as proprietary or other con- cation, an affidavit sworn to by the
fidential business information, confirm’s owners before a person who is
sistent with applicable Federal, state, authorized by State law to administer
and local law. oaths or an unsworn declaration exe-
(h)(1) Once you have certified a DBE, cuted under penalty of perjury of the
it shall remain certified until and un- laws of the United States. This affi-
less you have removed its certification, davit must affirm that there have been
in whole or in part, through the proce- no changes in the firm’s circumstances
dures of § 26.87 of this part, except as affecting its ability to meet size, dis-
provided in § 26.67(b)(1) of this part. advantaged status, ownership, or con-
(2) You may not require DBEs to re- trol requirements of this part or any
apply for certification or undergo a re- material changes in the information
certification process. However, you provided in its application form, except
may conduct a certification review of a for changes about which you have noti-
certified DBE firm, including a new on- fied the recipient under paragraph (i)
site review, if appropriate in light of of this section. The affidavit shall spe-
changed circumstances (e.g., of the cifically affirm that your firm con-
kind requiring notice under paragraph tinues to meet SBA business size cri-
(i) of this section or relating to suspen- teria and the overall gross receipts cap
sion of certification under § 26.88), a of this part, documenting this affirma-
complaint, or other information con- tion with supporting documentation of
cerning the firm’s eligibility. If infor- your firm’s size and gross receipts (e.g.,
mation comes to your attention that submission of Federal tax returns). If
leads you to question the firm’s eligi- you fail to provide this affidavit in a
bility, you may conduct an on-site re- timely manner, you will be deemed to
view on an unannounced basis, at the have failed to cooperate under

firm’s offices and job sites. § 26.109(c).
282
(k) If you are a recipient, you must tion, accept State A’s certification and
make decisions on applications for cer- certify the firm, without further proce-
tification within 90 days of receiving dures.
from the applicant firm all information (1) To obtain certification in this
required under this part. You may ex- manner, the firm must provide to State
tend this time period once, for no more B a copy of its certification notice
than an additional 60 days, upon writ- from State A.
ten notice to the firm, explaining fully (2) Before certifying the firm, State B
and specifically the reasons for the ex- must confirm that the firm has a cur-
tension. You may establish a different rent valid certification from State A.
time frame in your DBE program, upon State B can do so by reviewing State
a showing that this time frame is not A’s electronic directory or obtaining
feasible, and subject to the approval of written confirmation from State A.
the concerned operating administra- (c) In any situation in which State B
tion. Your failure to make a decision chooses not to accept State A’s certifi-
by the applicable deadline under this cation of a firm as provided in para-
paragraph is deemed a constructive de- graph (b) of this section, as the appli-
nial of the application, on the basis of cant firm you must provide the infor-
which the firm may appeal to DOT mation in paragraphs (c)(1) through (4)
under § 26.89. of this section to State B.
(l) As a recipient or UCP, you must (1) You must provide to State B a
advise each applicant within 30 days complete copy of the application form,
from your receipt of the application all supporting documents, and any
whether the application is complete other information you have submitted
and suitable for evaluation and, if not, to State A or any other state related to
what additional information or action your firm’s certification. This includes
is required. affidavits of no change (see § 26.83(j))
(m) Except as otherwise provided in and any notices of changes (see
this paragraph, if an applicant for DBE § 26.83(i)) that you have submitted to
certification withdraws its application State A, as well as any correspondence
before you have issued a decision on you have had with State A’s UCP or
the application, the applicant can re- any other recipient concerning your
submit the application at any time. As application or status as a DBE firm.
a recipient or UCP, you may not apply (2) You must also provide to State B
the waiting period provided under any notices or correspondence from
§ 26.86(c) of this part before allowing states other than State A relating to
the applicant to resubmit its applica- your status as an applicant or certified
tion. However, you may place the re- DBE in those states. For example, if
application at the ‘‘end of the line,’’ be- you have been denied certification or
hind other applications that have been decertified in State C, or subject to a
made since the firm’s previous applica- decertification action there, you must
tion was withdrawn. You may also inform State B of this fact and provide
apply the waiting period provided all documentation concerning this ac-
under § 26.86(c) of this part to a firm tion to State B.
that has established a pattern of fre- (3) If you have filed a certification
quently withdrawing applications be- appeal with DOT (see § 26.89), you must
fore you make a decision. inform State B of the fact and provide
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR your letter of appeal and DOT’s re-
35555, June 16, 2003; 76 FR 5100, Jan. 28, 2011; sponse to State B.
79 FR 59598, Oct. 2, 2014] (4) You must submit an affidavit
sworn to by the firm’s owners before a
§ 26.85 Interstate certification. person who is authorized by State law
(a) This section applies with respect to administer oaths or an unsworn dec-
to any firm that is currently certified laration executed under penalty of per-
in its home state. jury of the laws of the United States.
(b) When a firm currently certified in (i) This affidavit must affirm that
its home state (‘‘State A’’) applies to you have submitted all the information
another State (‘‘State B’’) for DBE cer- required by 49 CFR 26.85(c) and the in-
tification, State B may, at its discre- formation is complete and, in the case
283
of the information required by this section, send to the applicant firm

§ 26.85(c)(1), is an identical copy of the a notice that it is certified and place
information submitted to State A. the firm on your directory of certified
(ii) If the on-site report from State A firms.
supporting your certification in State (4) If, as State B, you have deter-
A is more than three years old, as of mined that there is good cause to be-
the date of your application to State B, lieve that State A’s certification is er-
State B may require that your affi- roneous or should not apply in your
davit also affirm that the facts in the State, you must, no later than 60 days
on-site report remain true and correct. from the date on which you received
(d) As State B, when you receive from the applicant firm all the infor-
from an applicant firm all the informa- mation required by paragraph (c) of
tion required by paragraph (c) of this this section, send to the applicant firm
section, you must take the following a notice stating the reasons for your
actions: determination.
(1) Within seven days contact State A (i) This notice must state with par-
and request a copy of the site visit re- ticularity the specific reasons why
view report for the firm (see State B believes that the firm does not
§ 26.83(c)(1)), any updates to the site meet the requirements of this Part for
visit review, and any evaluation of the DBE eligibility and must offer the firm
firm based on the site visit. As State A, an opportunity to respond to State B
you must transmit this information to with respect to these reasons.
State B within seven days of receiving (ii) The firm may elect to respond in
the request. A pattern by State B of writing, to request an in-person meet-
not making such requests in a timely ing with State B’s decision maker to
manner or by ‘‘State A’’ or any other discuss State B’s objections to the
State of not complying with such re- firm’s eligibility, or both. If the firm
quests in a timely manner is non- requests a meeting, as State B you
compliance with this Part. must schedule the meeting to take
(2) Determine whether there is good place within 30 days of receiving the
cause to believe that State A’s certifi- firm’s request.
cation of the firm is erroneous or (iii) The firm bears the burden of
should not apply in your State. Rea- demonstrating, by a preponderance of
sons for making such a determination evidence, that it meets the require-
may include the following: ments of this Part with respect to the
(i) Evidence that State A’s certifi- particularized issues raised by State
cation was obtained by fraud; B’s notice. The firm is not otherwise
(ii) New information, not available to responsible for further demonstrating
State A at the time of its certification, its eligibility to State B.
showing that the firm does not meet (iv) The decision maker for State B
all eligibility criteria; must be an individual who is thor-
(iii) State A’s certification was factu- oughly familiar with the provisions of
ally erroneous or was inconsistent with this Part concerning certification.
the requirements of this part; (v) State B must issue a written deci-
(iv) The State law of State B requires sion within 30 days of the receipt of the
a result different from that of the written response from the firm or the
State law of State A. meeting with the decision maker,
(v) The information provided by the whichever is later.
applicant firm did not meet the re- (vi) The firm’s application for certifi-
quirements of paragraph (c) of this sec- cation is stayed pending the outcome
tion. of this process.
(3) If, as State B, unless you have de- (vii) A decision under this paragraph
termined that there is good cause to (d)(4) may be appealed to the Depart-
believe that State A’s certification is mental Office of Civil Rights under
erroneous or should not apply in your s§ 26.89 of this part.
State, you must, no later than 60 days (e) As State B, if you have not re-
from the date on which you received ceived from State A a copy of the site
from the applicant firm all the infor- visit review report by a date 14 days
mation required by paragraph (c) of after you have made a timely request
284
for it, you may hold action required by nation of the reasons for the denial,
paragraphs (d)(2) through (4) of this specifically referencing the evidence in
section in abeyance pending receipt of the record that supports each reason
the site visit review report. In this for the denial. All documents and other
event, you must, no later than 30 days information on which the denial is
from the date on which you received based must be made available to the
from an applicant firm all the informa- applicant, on request.
tion required by paragraph (c) of this (b) [Reserved]
section, notify the firm in writing of (c) When a firm is denied certifi-
the delay in the process and the reason cation, you must establish a time pe-
for it. riod of no more than twelve months
(f)(1) As a UCP, when you deny a that must elapse before the firm may
firm’s application, reject the applica- reapply to the recipient for certifi-
tion of a firm certified in State A or cation. You may provide, in your DBE
any other State in which the firm is program, subject to approval by the
certified, through the procedures of concerned operating administration, a
paragraph (d)(4) of this section, or de- shorter waiting period for reapplica-
certify a firm, in whole or in part, you tion. The time period for reapplication
must make an entry in the Department begins to run on the date the expla-
of Transportation Office of Civil nation required by paragraph (a) of this
Rights’ (DOCR’s) Ineligibility Deter- section is received by the firm. An ap-
mination Online Database. You must plicant’s appeal of your decision to the
enter the following information: Department pursuant to § 26.89 does not
(i) The name of the firm; extend this period.
(ii) The name(s) of the firm’s (d) When you make an administra-
owner(s); tively final denial of certification con-
(iii) The type and date of the action; cerning a firm, the firm may appeal the
(iv) The reason for the action. denial to the Department under § 26.89.
(2) As a UCP, you must check the
[64 FR 5126, Feb. 2, 1999. Redesignated and
DOCR Web site at least once every
amended at 68 FR 35555, June 16, 2003; 79 FR
month to determine whether any firm 59598, Oct. 2, 2014]
that is applying to you for certification
or that you have already certified is on § 26.87 What procedures does a recipi-
the list. ent use to remove a DBE’s eligi-
(3) For any such firm that is on the bility?
list, you must promptly request a copy (a) Ineligibility complaints. (1) Any per-
of the listed decision from the UCP son may file with you a written com-
that made it. As the UCP receiving plaint alleging that a currently-cer-
such a request, you must provide a tified firm is ineligible and specifying
copy of the decision to the requesting the alleged reasons why the firm is in-
UCP within 7 days of receiving the re- eligible. You are not required to accept
quest. As the UCP receiving the deci- a general allegation that a firm is in-
sion, you must then consider the infor- eligible or an anonymous complaint.
mation in the decision in determining The complaint may include any infor-
what, if any, action to take with re- mation or arguments supporting the
spect to the certified DBE firm or ap- complainant’s assertion that the firm
plicant. is ineligible and should not continue to
(g) You must implement the require- be certified. Confidentiality of com-
ments of this section beginning Janu- plainants’ identities must be protected
ary 1, 2012. as provided in § 26.109(b).
[76 FR 5100, Jan. 28, 2011] (2) You must review your records
concerning the firm, any material pro-
§ 26.86 What rules govern recipients’ vided by the firm and the complainant,
denials of initial requests for cer- and other available information. You
tification? may request additional information
(a) When you deny a request by a from the firm or conduct any other in-
firm, which is not currently certified vestigation that you deem necessary.
with you, to be certified as a DBE, you (3) If you determine, based on this re-
must provide the firm a written expla- view, that there is reasonable cause to
285
believe that the firm is ineligible, you guments concerning why it should re-
must provide written notice to the firm main certified.
that you propose to find the firm ineli- (1) In such a proceeding, you bear the
gible, setting forth the reasons for the burden of proving, by a preponderance
proposed determination. If you deter- of the evidence, that the firm does not
mine that such reasonable cause does meet the certification standards of this
not exist, you must notify the compart.
plainant and the firm in writing of this (2) You must maintain a complete
determination and the reasons for it. record of the hearing, by any means ac-
All statements of reasons for findings ceptable under state law for the reten-
on the issue of reasonable cause must tion of a verbatim record of an admin-
specifically reference the evidence in istrative hearing. If there is an appeal
the record on which each reason is to DOT under § 26.89, you must provide
based. a transcript of the hearing to DOT and,
(b) Recipient-initiated proceedings. If, on request, to the firm. You must re-
based on notification by the firm of a tain the original record of the hearing.
change in its circumstances or other You may charge the firm only for the
information that comes to your atten- cost of copying the record.
tion, you determine that there is rea- (3) The firm may elect to present in-
sonable cause to believe that a cur- formation and arguments in writing,
rently certified firm is ineligible, you
without going to a hearing. In such a
must provide written notice to the firm
situation, you bear the same burden of
that you propose to find the firm ineli-
proving, by a preponderance of the evi-
gible, setting forth the reasons for the
dence, that the firm does not meet the
proposed determination. The statement
certification standards, as you would
of reasons for the finding of reasonable
during a hearing.
cause must specifically reference the
(e) Separation of functions. You must
evidence in the record on which each
ensure that the decision in a pro-
reason is based.
ceeding to remove a firm’s eligibility is
(c) DOT directive to initiate proceeding.
made by an office and personnel that
(1) If the concerned operating adminis-
did not take part in actions leading to
tration determines that information in
or seeking to implement the proposal
your certification records, or other in-
to remove the firm’s eligibility and are
formation available to the concerned
not subject, with respect to the matter,
operating administration, provides rea-
to direction from the office or per-
sonable cause to believe that a firm
sonnel who did take part in these ac-
you certified does not meet the eligi-
tions.
bility criteria of this part, the con-
cerned operating administration may (1) Your method of implementing this
direct you to initiate a proceeding to requirement must be made part of your
remove the firm’s certification. DBE program.
(2) The concerned operating adminis- (2) The decisionmaker must be an in-
tration must provide you and the firm dividual who is knowledgeable about
a notice setting forth the reasons for the certification requirements of your
the directive, including any relevant DBE program and this part.
documentation or other information. (3) Before a UCP is operational in its
(3) You must immediately commence state, a small airport or small transit
and prosecute a proceeding to remove authority (i.e., an airport or transit au-
eligibility as provided by paragraph (b) thority serving an area with less than
of this section. 250,000 population) is required to meet
(d) Hearing. When you notify a firm this requirement only to the extent
that there is reasonable cause to re- feasible.
move its eligibility, as provided in (f) Grounds for decision. You may base
paragraph (a), (b), or (c) of this section, a decision to remove a firm’s eligibility
you must give the firm an opportunity only on one or more of the following
for an informal hearing, at which the grounds:
firm may respond to the reasons for (1) Changes in the firm’s cir-
the proposal to remove its eligibility in cumstances since the certification of

person and provide information and ar- the firm by the recipient that render
286
the firm unable to meet the eligibility provided for in paragraph (g) of this
standards of this part; section.
(2) Information or evidence not avail- (j) Effects of removal of eligibility.
able to you at the time the firm was When you remove a firm’s eligibility,
certified; you must take the following action:
(3) Information relevant to eligibility (1) When a prime contractor has
that has been concealed or misrepre- made a commitment to using the ineli-
sented by the firm; gible firm, or you have made a commit-
(4) A change in the certification ment to using a DBE prime contractor,
standards or requirements of the De- but a subcontract or contract has not
partment since you certified the firm; been executed before you issue the de-
(5) Your decision to certify the firm certification notice provided for in
was clearly erroneous; paragraph (g) of this section, the ineli-
(6) The firm has failed to cooperate gible firm does not count toward the
with you (see § 26.109(c)); contract goal or overall goal. You must
(7) The firm has exhibited a pattern direct the prime contractor to meet
of conduct indicating its involvement the contract goal with an eligible DBE
in attempts to subvert the intent or re- firm or demonstrate to you that it has
quirements of the DBE program (see made a good faith effort to do so.
§ 26.73(a)(2)); or (2) If a prime contractor has executed
(8) The firm has been suspended or a subcontract with the firm before you
debarred for conduct related to the have notified the firm of its ineligi-
DBE program. The notice required by bility, the prime contractor may con-
paragraph (g) of this section must in- tinue to use the firm on the contract
clude a copy of the suspension or de- and may continue to receive credit to-
barment action. A decision to remove a ward its DBE goal for the firm’s work.
firm for this reason shall not be subject In this case, or in a case where you
to the hearing procedures in paragraph have let a prime contract to the DBE
(d) of this section. that was later ruled ineligible, the por-
(g) Notice of decision. Following your tion of the ineligible firm’s perform-
decision, you must provide the firm ance of the contract remaining after
written notice of the decision and the you issued the notice of its ineligi-
reasons for it, including specific ref- bility shall not count toward your
erences to the evidence in the record overall goal, but may count toward the
that supports each reason for the deci- contract goal.
sion. The notice must inform the firm (3) Exception: If the DBE’s ineligi-
of the consequences of your decision bility is caused solely by its having ex-
and of the availability of an appeal to ceeded the size standard during the
the Department of Transportation performance of the contract, you may
under § 26.89. You must send copies of continue to count its participation on
the notice to the complainant in an in- that contract toward overall and con-
eligibility complaint or the concerned tract goals.
operating administration that had di- (k) Availability of appeal. When you
rected you to initiate the proceeding. make an administratively final re-
Provided that, when sending such a no- moval of a firm’s eligibility under this
tice to a complainant other than a section, the firm may appeal the re-
DOT operating administration, you moval to the Department under § 26.89.
must not include information reason- [64 FR 5126, Feb. 2, 1999, as amended at 68 FR
ably construed as confidential business 35556, June 16, 2003; 76 FR 5101, Jan. 28, 2011;
information without the written con- 79 FR 59599, Oct. 2, 2014]
sent of the firm that submitted the in-
formation. § 26.88 Summary suspension of certifi-
(h) [Reserved] cation.
(i) Status of firm during proceeding. (1) (a) A recipient shall immediately
A firm remains an eligible DBE during suspend a DBE’s certification without
the pendancy of your proceeding to re- adhering to the requirements in
move its eligibility. § 26.87(d) of this part when an indi-
(2) The firm does not become ineli- vidual owner whose ownership and con-
gible until the issuance of the notice trol of the firm are necessary to the
287
firm’s certification dies or is incarcer- and may be counted toward the con-
ated. tract goal during the period of suspen-
(b)(1) A recipient may immediately sion as long as the DBE is performing
suspend a DBE’s certification without a commercially useful function under
adhering to the requirements in the existing contract.
§ 26.87(d) when there is adequate evi- (g) Following receipt of the Notice of
dence to believe that there has been a Suspension, if the DBE believes it is no
material change in circumstances that longer eligible, it may voluntarily
may affect the eligibility of the DBE withdraw from the program, in which
firm to remain certified, or when the case no further action is required. If
DBE fails to notify the recipient or the DBE believes that its eligibility
UCP in writing of any material change should be reinstated, it must provide to
in circumstances as required by the recipient information dem-
§ 26.83(i) of this part or fails to timely onstrating that the firm is eligible not-
file an affidavit of no change under withstanding its changed cir-
§ 26.83(j). cumstances. Within 30 days of receiv-
(2) In determining the adequacy of
ing this information, the recipient
the evidence to issue a suspension
must either lift the suspension and re-
under paragraph (b)(1) of this section,
instate the firm’s certification or com-
the recipient shall consider all relevant
mence a decertification action under
factors, including how much informa-
§ 26.87 of this part. If the recipient com-
tion is available, the credibility of the
information and allegations given the mences a decertification proceeding,
circumstances, whether or not impor- the suspension remains in effect during
tant allegations are corroborated, and the proceeding.
what inferences can reasonably be (h) The decision to immediately sus-
drawn as a result. pend a DBE under paragraph (a) or (b)
(c) The concerned operating adminis- of this section is not appealable to the
tration may direct the recipient to US Department of Transportation. The
take action pursuant to paragraph (a) failure of a recipient to either lift the
or (b) this section if it determines that suspension and reinstate the firm or
information available to it is sufficient commence a decertification pro-
to warrant immediate suspension. ceeding, as required by paragraph (g) of
(d) When a firm is suspended pursu- this section, is appealable to the U.S.
ant to paragraph (a) or (b) of this sec- Department of Transportation under
tion, the recipient shall immediately § 26.89 of this part, as a constructive de-
notify the DBE of the suspension by certification.
certified mail, return receipt re-
[79 FR 59599, Oct. 2, 2014]
quested, to the last known address of
the owner(s) of the DBE. § 26.89 What is the process for certifi-
(e) Suspension is a temporary status cation appeals to the Department of
of ineligibility pending an expedited Transportation?
show cause hearing/proceeding under
§ 26.87 of this part to determine wheth- (a)(1) If you are a firm that is denied
er the DBE is eligible to participate in certification or whose eligibility is re-
the program and consequently should moved by a recipient, including SBA-
be removed. The suspension takes ef- certified firms, you may make an ad-
fect when the DBE receives, or is ministrative appeal to the Department.
deemed to have received, the Notice of (2) If you are a complainant in an in-
Suspension. eligibility complaint to a recipient (in-
(f) While suspended, the DBE may cluding the concerned operating ad-
not be considered to meet a contract ministration in the circumstances pro-
goal on a new contract, and any work vided in § 26.87(c)), you may appeal to
it does on a contract received during the Department if the recipient does
the suspension shall not be counted to- not find reasonable cause to propose re-
ward a recipient’s overall goal. The moving the firm’s eligibility or, fol-
DBE may continue to perform under an lowing a removal of eligibility pro-
existing contract executed before the ceeding, determines that the firm is el-
DBE received a Notice of Suspension igible.
288
(3) Send appeals to the following administrative record by adding relevant
dress: U.S. Department of Transpor- information made available by the
tation, Departmental Office of Civil DOT Office of Inspector General; Fed-
Rights, 1200 New Jersey Avenue SE., eral, State, or local law enforcement
Washington, DC 20590–0001. authorities; officials of a DOT oper-
(b) Pending the Department’s deci- ating administration or other appro-
sion in the matter, the recipient’s deci- priate DOT office; a recipient; or a firm
sion remains in effect. The Department or other private party.
does not stay the effect of the recipi- (f) As a recipient, when you provide
ent’s decision while it is considering an supplementary information to the De-
appeal. partment, you shall also make this in-
(c) If you want to file an appeal, you formation available to the firm and
must send a letter to the Department any third-party complainant involved,
within 90 days of the date of the recipi- consistent with Federal or applicable
ent’s final decision, including informa- state laws concerning freedom of infor-
tion and setting forth a full and spe- mation and privacy. The Department
cific statement as to why the decision makes available, on request by the
is erroneous, what significant fact that firm and any third-party complainant
the recipient failed to consider, or involved, any supplementary informa-
what provisions of this Part the recipi- tion it receives from any source.
ent did not properly apply. The Depart- (1) The Department affirms your de-
ment may accept an appeal filed later cision unless it determines, based on
than 90 days after the date of the deci- the entire administrative record, that
sion if the Department determines that your decision is unsupported by sub-
there was good cause for the late filing stantial evidence or inconsistent with
of the appeal or in the interest of jus- the substantive or procedural provi-
tice. sions of this part concerning certifi-
(d) When it receives an appeal, the cation.
Department requests a copy of the re- (2) If the Department determines,
cipient’s complete administrative after reviewing the entire administra-
record in the matter. If you are the re- tive record, that your decision was un-
cipient, you must provide the adminis- supported by substantial evidence or
trative record, including a hearing inconsistent with the substantive or
transcript, within 20 days of the De- procedural provisions of this part con-
partment’s request. The Department cerning certification, the Department
may extend this time period on the reverses your decision and directs you
basis of a recipient’s showing of good to certify the firm or remove its eligi-
cause. To facilitate the Department’s bility, as appropriate. You must take
review of a recipient’s decision, you the action directed by the Depart-
must ensure that such administrative ment’s decision immediately upon re-
records are well organized, indexed, ceiving written notice of it.
and paginated. Records that do not (3) The Department is not required to
comport with these requirements are reverse your decision if the Depart-
not acceptable and will be returned to ment determines that a procedural
you to be corrected immediately. If an error did not result in fundamental un-
appeal is brought concerning one re- fairness to the appellant or substan-
cipient’s certification decision con- tially prejudice the opportunity of the
cerning a firm, and that recipient re- appellant to present its case.
lied on the decision and/or administra- (4) If it appears that the record is in-
tive record of another recipient, this complete or unclear with respect to
requirement applies to both recipients matters likely to have a significant
involved. impact on the outcome of the case, the
(e) The Department makes its deci- Department may remand the record to
sion based solely on the entire adminis- you with instructions seeking clarifica-
trative record as supplemented by the tion or augmentation of the record be-
appeal. The Department does not make fore making a finding. The Department
a de novo review of the matter and may also remand a case to you for fur-
does not conduct a hearing. The De- ther proceedings consistent with De-
partment may also supplement the ad- partment instructions concerning the
289
proper application of the provisions of on receipt of the determination, with-

this part. out further proceedings on your part.
(5) The Department does not uphold Effective on the date of your receipt of
your decision based on grounds not the Department’s determination, the
specified in your decision. consequences of a removal of eligibility
(6) The Department’s decision is set forth in § 26.87(i) take effect.
based on the status and circumstances (2) If the Department determines
of the firm as of the date of the deci- that you erroneously failed to find rea-
sion being appealed. sonable cause to remove the firm’s eli-
(7) The Department provides written gibility, you must expeditiously com-
notice of its decision to you, the firm, mence a proceeding to determine
and the complainant in an ineligibility whether the firm’s eligibility should be
complaint. A copy of the notice is also removed, as provided in § 26.87.
sent to any other recipient whose ad- (3) If the Department determines
ministrative record or decision has that you erroneously declined to cer-
been involved in the proceeding (see tify or removed the eligibility of the
paragraph (d) of this section). The De- firm, you must certify the firm, effec-
partment will also notify the SBA in tive on the date of your receipt of the
writing when DOT takes an action on written notice of Department’s deter-
an appeal that results in or confirms a mination.
loss of eligibility to any SBA-certified (4) If the Department determines
firm. The notice includes the reasons that you erroneously determined that
for the Department’s decision, includ- the presumption of social and eco-
ing specific references to the evidence nomic disadvantage either should or
in the record that supports each reason should not be deemed rebutted, you
for the decision. must take appropriate corrective ac-
(8) The Department’s policy is to tion as determined by the Department.
make its decision within 180 days of re- (5) If the Department affirms your
ceiving the complete administrative determination, no further action is
record. If the Department does not necessary.
make its decision within this period, (c) Where DOT has upheld your de-
the Department provides written no- nial of certification to or removal of
tice to concerned parties, including a eligibility from a firm, or directed the
statement of the reason for the delay removal of a firm’s eligibility, other
and a date by which the appeal decision recipients with whom the firm is cer-
will be made. tified may commence a proceeding to
(g) All decisions under this section remove the firm’s eligibility under
are administratively final, and are not § 26.87. Such recipients must not re-
subject to petitions for reconsider- move the firm’s eligibility absent such
ation. a proceeding. Where DOT has reversed
your denial of certification to or re-
[64 FR 5126, Feb. 2, 1999, as amended at 65 FR moval of eligibility from a firm, other
68951, Nov. 15, 2000; 68 FR 35556, June 16, 2003;
recipients must take the DOT action
73 FR 33329, June 12, 2008; 79 FR 59599, Oct. 2,
2014] into account in any certification ac-
tion involving the firm. However, other
§ 26.91 What actions do recipients take recipients are not required to certify
following DOT certification appeal the firm based on the DOT decision.
decisions?
(a) If you are the recipient from Subpart F—Compliance and
whose action an appeal under § 26.89 is Enforcement
taken, the decision is binding. It is not
binding on other recipients. § 26.101 What compliance procedures
(b) If you are a recipient to which a apply to recipients?
DOT determination under § 26.89 is ap- (a) If you fail to comply with any re-
plicable, you must take the following quirement of this part, you may be
action: subject to formal enforcement action
(1) If the Department determines under § 26.103 or § 26.105 or appropriate
that you erroneously certified a firm, program sanctions by the concerned

you must remove the firm’s eligibility operating administration, such as the
290
suspension or termination of Federal plaint or the results of a compliance

funds, or refusal to approve projects, review, that you, as a recipient, are in
grants or contracts until deficiencies noncompliance with this part, the ap-
are remedied. Program sanctions may propriate DOT office promptly sends
include, in the case of the FHWA pro- you, return receipt requested, a writ-
gram, actions provided for under 23 ten notice advising you that there is
CFR 1.36; in the case of the FAA pro- reasonable cause to find you in non-
gram, actions consistent with 49 U.S.C. compliance. The notice states the rea-
47106(d), 47111(d), and 47122; and in the sons for this finding and directs you to
case of the FTA program, any actions reply within 30 days concerning wheth-
permitted under 49 U.S.C. chapter 53 or er you wish to begin conciliation.
applicable FTA program requirements. (d) Conciliation. (1) If you request con-
(b) As provided in statute, you will ciliation, the appropriate DOT office
not be subject to compliance actions or shall pursue conciliation for at least 30,
sanctions for failing to carry out any but not more than 120, days from the
requirement of this part because you date of your request. The appropriate
have been prevented from complying DOT office may extend the conciliation
because a Federal court has issued a period for up to 30 days for good cause,
final order in which the court found consistent with applicable statutes.
that the requirement is unconstitu- (2) If you and the appropriate DOT of-
tional. fice sign a conciliation agreement,
§ 26.103 What enforcement actions then the matter is regarded as closed
apply in FHWA and FTA programs? and you are regarded as being in com-
pliance. The conciliation agreement
The provisions of this section apply sets forth the measures you have taken
to enforcement actions under FHWA or will take to ensure compliance.
and FTA programs: While a conciliation agreement is in ef-
(a) Noncompliance complaints. Any
fect, you remain eligible for FHWA or
person who believes that a recipient
FTA financial assistance.
has failed to comply with its obliga-
(3) The concerned operating adminis-
tions under this part may file a written
tration shall monitor your implemen-
complaint with the concerned oper-
tation of the conciliation agreement
ating administration’s Office of Civil
and ensure that its terms are complied
Rights. If you want to file a complaint,
with. If you fail to carry out the terms
you must do so no later than 180 days
of a conciliation agreement, you are in
after the date of the alleged violation
noncompliance.
or the date on which you learned of a
continuing course of conduct in viola- (4) If you do not request conciliation,
tion of this part. In response to your or a conciliation agreement is not
written request, the Office of Civil signed within the time provided in
Rights may extend the time for filing paragraph (d)(1) of this section, then
in the interest of justice, specifying in enforcement proceedings begin.
writing the reason for so doing. The Of- (e) Enforcement actions. (1) Enforce-
fice of Civil Rights may protect the ment actions are taken as provided in
confidentiality of your identity as pro- this subpart.
vided in § 26.109(b). Complaints under (2) Applicable findings in enforce-
this part are limited to allegations of ment proceedings are binding on all
violation of the provisions of this part. DOT offices.
(b) Compliance reviews. The concerned
operating administration may review § 26.105 What enforcement actions
the recipient’s compliance with this apply in FAA programs?
part at any time, including reviews of (a) Compliance with all requirements
paperwork and on-site reviews, as ap- of this part by airport sponsors and
propriate. The Office of Civil Rights other recipients of FAA financial as-
may direct the operating administra- sistance is enforced through the proce-
tion to initiate a compliance review dures of Title 49 of the United States
based on complaints received. Code, including 49 U.S.C. 47106(d),
(c) Reasonable cause notice. If it ap- 47111(d), and 47122, and regulations im-
pears, from the investigation of a com- plementing them.
291
(b) The provisions of § 26.103(b) and makes a false or fraudulent statement

this section apply to enforcement ac- in connection with participation of a
tions in FAA programs. DBE in any DOT-assisted program or
(c) Any person who knows of a viola- otherwise violates applicable Federal
tion of this part by a recipient of FAA statutes.
funds may file a complaint under 14
CFR part 16 with the Federal Aviation
5101, Jan. 28, 2011]
Administration Office of Chief Counsel.
§ 26.109 What are the rules governing
§ 26.107 What enforcement actions information, confidentiality, co-
apply to firms participating in the operation, and intimidation or re-
DBE program?
taliation?
(a) If you are a firm that does not
(a) Availability of records. (1) In re-
meet the eligibility criteria of subpart
sponding to requests for information
D of this part and that attempts to par-
concerning any aspect of the DBE pro-
ticipate in a DOT-assisted program as a
gram, the Department complies with
DBE on the basis of false, fraudulent,
provisions of the Federal Freedom of
or deceitful statements or representa-
tions or under circumstances indi- Information and Privacy Acts (5 U.S.C.
cating a serious lack of business integ- 552 and 552a). The Department may
rity or honesty, the Department may make available to the public any infor-
initiate suspension or debarment pro- mation concerning the DBE program
ceedings against you under 2 CFR parts release of which is not prohibited by
180 and 1200. Federal law.
(b) If you are a firm that, in order to (2) Notwithstanding any provision of
meet DBE contract goals or other DBE Federal or state law, you must not re-
program requirements, uses or at- lease any information that may rea-
tempts to use, on the basis of false, sonably be construed as confidential
fraudulent or deceitful statements or business information to any third
representations or under circumstances party without the written consent of
indicating a serious lack of business in- the firm that submitted the informa-
tegrity or honesty, another firm that tion. This includes applications for
does not meet the eligibility criteria of DBE certification and supporting infor-
subpart D of this part, the Department mation. However, you must transmit
may initiate suspension or debarment this information to DOT in any certifi-
proceedings against you under 2 CFR cation appeal proceeding under § 26.89
parts 180 and 1200. of this part or to any other state to
(c) In a suspension or debarment pro- which the individual’s firm has applied
ceeding brought under paragraph (a) or for certification under § 26.85 of this
(b) of this section, the concerned oper- part.
ating administration may consider the (b) Confidentiality of information on
fact that a purported DBE has been complainants. Notwithstanding the pro-
certified by a recipient. Such certifi- visions of paragraph (a) of this section,
cation does not preclude the Depart- the identity of complainants shall be
ment from determining that the pur- kept confidential, at their election. If
ported DBE, or another firm that has such confidentiality will hinder the in-
used or attempted to use it to meet vestigation, proceeding or hearing, or
DBE goals, should be suspended or result in a denial of appropriate admin-
debarred. istrative due process to other parties,
(d) The Department may take en- the complainant must be advised for
forcement action under 49 CFR Part 31, the purpose of waiving the privilege.
Program Fraud and Civil Remedies, Complainants are advised that, in some
against any participant in the DBE circumstances, failure to waive the
program whose conduct is subject to privilege may result in the closure of
such action under 49 CFR part 31. the investigation or dismissal of the
(e) The Department may refer to the proceeding or hearing. FAA follows the
Department of Justice, for prosecution procedures of 14 CFR part 16 with re-
under 18 U.S.C. 1001 or other applicable spect to confidentiality of information

provisions of law, any person who in complaints.
292
(c) Cooperation. All participants in other requirement of this part which, by

the Department’s DBE program (in- their scope, intensity, and appropriateness
cluding, but not limited to, recipients, to the objective, could reasonably be ex-
pected to obtain sufficient DBE participa-
DBE firms and applicants for DBE cer- tion, even if they were not fully successful.
tification, complainants and appel- II. In any situation in which you have es-
lants, and contractors using DBE firms tablished a contract goal, Part 26 requires
to meet contract goals) are required to you to use the good faith efforts mechanism
cooperate fully and promptly with DOT of this part. As a recipient, you have the re-
and recipient compliance reviews, cer- sponsibility to make a fair and reasonable
tification reviews, investigations, and judgment whether a bidder that did not meet
other requests for information. Failure the goal made adequate good faith efforts. It
is important for you to consider the quality,
to do so shall be a ground for appro- quantity, and intensity of the different kinds
priate action against the party in- of efforts that the bidder has made, based on
volved (e.g., with respect to recipients, the regulations and the guidance in this Ap-
a finding of noncompliance; with re- pendix.
spect to DBE firms, denial of certifi- The efforts employed by the bidder should
cation or removal of eligibility and/or be those that one could reasonably expect a
suspension and debarment; with re- bidder to take if the bidder were actively and
spect to a complainant or appellant, aggressively trying to obtain DBE participa-
tion sufficient to meet the DBE contract
dismissal of the complaint or appeal; goal. Mere pro forma efforts are not good
with respect to a contractor which uses faith efforts to meet the DBE contract re-
DBE firms to meet goals, findings of quirements. We emphasize, however, that
non-responsibility for future contracts your determination concerning the suffi-
and/or suspension and debarment). ciency of the firm’s good faith efforts is a
(d) Intimidation and retaliation. If you judgment call. Determinations should not be
are a recipient, contractor, or any made using quantitative formulas.
III. The Department also strongly cautions
other participant in the program, you you against requiring that a bidder meet a
must not intimidate, threaten, coerce, contract goal (i.e., obtain a specified amount
or discriminate against any individual of DBE participation) in order to be awarded
or firm for the purpose of interfering a contract, even though the bidder makes an
with any right or privilege secured by adequate good faith efforts showing. This
this part or because the individual or rule specifically prohibits you from ignoring
firm has made a complaint, testified, bona fide good faith efforts.
IV. The following is a list of types of ac-
assisted, or participated in any manner
tions which you should consider as part of
in an investigation, proceeding, or the bidder’s good faith efforts to obtain DBE
hearing under this part. If you violate participation. It is not intended to be a man-
this prohibition, you are in noncompli- datory checklist, nor is it intended to be ex-
ance with this part. clusive or exhaustive. Other factors or types
of efforts may be relevant in appropriate
[64 FR 5126, Feb. 2, 1999, as amended at 68 FR cases.
35556, June 16, 2003; 76 FR 5101, Jan. 28, 2011] A. (1) Conducing market research to iden-
tify small business contractors and suppliers
and soliciting through all reasonable and
available means the interest of all certified
APPENDIX A TO PART 26—GUIDANCE DBEs that have the capability to perform
CONCERNING GOOD FAITH EFFORTS the work of the contract. This may include
attendance at pre-bid and business match-
I. When, as a recipient, you establish a making meetings and events, advertising
contract goal on a DOT-assisted contract for and/or written notices, posting of Notices of
procuring construction, equipment, services, Sources Sought and/or Requests for Pro-
or any other purpose, a bidder must, in order posals, written notices or emails to all DBEs
to be responsible and/or responsive, make listed in the State’s directory of transpor-
sufficient good faith efforts to meet the goal. tation firms that specialize in the areas of
The bidder can meet this requirement in ei- work desired (as noted in the DBE directory)
ther of two ways. First, the bidder can meet and which are located in the area or sur-
the goal, documenting commitments for par- rounding areas of the project.
ticipation by DBE firms sufficient for this (2) The bidder should solicit this interest
purpose. Second, even if it doesn’t meet the as early in the acquisition process as prac-
goal, the bidder can document adequate good ticable to allow the DBEs to respond to the
faith efforts. This means that the bidder solicitation and submit a timely offer for the
must show that it took all necessary and subcontract. The bidder should determine
reasonable steps to achieve a DBE goal or with certainty if the DBEs are interested by
293
taking appropriate steps to follow up initial good faith effort is the rejection of the DBE
solicitations. because its quotation for the work was not
B. Selecting portions of the work to be per- the lowest received. However, nothing in this
formed by DBEs in order to increase the paragraph shall be construed to require the
likelihood that the DBE goals will be bidder or prime contractor to accept unrea-
achieved. This includes, where appropriate, sonable quotes in order to satisfy contract
breaking out contract work items into eco- goals.
nomically feasible units (for example, small- (2) A prime contractor’s inability to find a
er tasks or quantities) to facilitate DBE par- replacement DBE at the original price is not
ticipation, even when the prime contractor alone sufficient to support a finding that
might otherwise prefer to perform these good faith efforts have been made to replace
work items with its own forces. This may in- the original DBE. The fact that the con-
clude, where possible, establishing flexible tractor has the ability and/or desire to per-
timeframes for performance and delivery form the contract work with its own forces
schedules in a manner that encourages and does not relieve the contractor of the obliga-
facilitates DBE participation. tion to make good faith efforts to find a re-
C. Providing interested DBEs with ade- placement DBE, and it is not a sound basis
quate information about the plans, specifica- for rejecting a prospective replacement
tions, and requirements of the contract in a DBE’s reasonable quote.
timely manner to assist them in responding F. Making efforts to assist interested DBEs
to a solicitation with their offer for the sub- in obtaining bonding, lines of credit, or in-
contract. surance as required by the recipient or con-
D. (1) Negotiating in good faith with inter-
tractor.
ested DBEs. It is the bidder’s responsibility
G. Making efforts to assist interested
to make a portion of the work available to
DBEs in obtaining necessary equipment, sup-
DBE subcontractors and suppliers and to se-
plies, materials, or related assistance or
lect those portions of the work or material
needs consistent with the available DBE sub- services.
contractors and suppliers, so as to facilitate H. Effectively using the services of avail-
DBE participation. Evidence of such negotia- able minority/women community organiza-
tion includes the names, addresses, and tele- tions; minority/women contractors’ groups;
phone numbers of DBEs that were consid- local, State, and Federal minority/women
ered; a description of the information pro- business assistance offices; and other organi-
vided regarding the plans and specifications zations as allowed on a case-by-case basis to
for the work selected for subcontracting; and provide assistance in the recruitment and
evidence as to why additional Agreements placement of DBEs.
could not be reached for DBEs to perform the V. In determining whether a bidder has
work. made good faith efforts, it is essential to
(2) A bidder using good business judgment scrutinize its documented efforts. At a min-
would consider a number of factors in negoti- imum, you must review the performance of
ating with subcontractors, including DBE other bidders in meeting the contract goal.
subcontractors, and would take a firm’s For example, when the apparent successful
price and capabilities as well as contract bidder fails to meet the contract goal, but
goals into consideration. However, the fact others meet it, you may reasonably raise the
that there may be some additional costs in- question of whether, with additional efforts,
volved in finding and using DBEs is not in the apparent successful bidder could have
itself sufficient reason for a bidder’s failure met the goal. If the apparent successful bid-
to meet the contract DBE goal, as long as der fails to meet the goal, but meets or ex-
such costs are reasonable. Also, the ability ceeds the average DBE participation ob-
or desire of a prime contractor to perform tained by other bidders, you may view this,
the work of a contract with its own organiza- in conjunction with other factors, as evi-
tion does not relieve the bidder of the re- dence of the apparent successful bidder hav-
sponsibility to make good faith efforts. ing made good faith efforts. As provided in
Prime contractors are not, however, required § 26.53(b)(2)((vi), you must also require the
to accept higher quotes from DBEs if the contractor to submit copies of each DBE and
price difference is excessive or unreasonable. non-DBE subcontractor quote submitted to
E. (1) Not rejecting DBEs as being unquali- the bidder when a non-DBE subcontractor
fied without sound reasons based on a thor- was selected over a DBE for work on the con-
ough investigation of their capabilities. The tract to review whether DBE prices were
contractor’s standing within its industry, substantially higher; and contact the DBEs
membership in specific groups, organiza- listed on a contractor’s solicitation to in-
tions, or associations and political or social quire as to whether they were contacted by
affiliations (for example union vs. non-union the prime. Pro forma mailings to DBEs re-
status) are not legitimate causes for the requesting bids are not alone sufficient to sat-
jection or non-solicitation of bids in the con- isfy good faith efforts under the rule.
tractor’s efforts to meet the project goal. VI. A promise to use DBEs after contract
Another practice considered an insufficient award is not considered to be responsive to
294
the contract solicitation or to constitute on DBE firms. For example, a small business
good faith efforts. outreach program, technical assistance, and
prompt payment clauses can assist a wide
[79 FR 59600, Oct. 2, 2014]
variety of businesses in addition to helping
DBE firms.
APPENDIX B TO PART 26—UNIFORM RE-
PORT OF DBE AWARDS OR COMMIT- Section A: Awards and Commitments Made
MENTS AND PAYMENTS FORM During This Period
INSTRUCTIONS FOR COMPLETING THE The amounts in items 8(A)–10(I) should in-
UNIFORM REPORT OF DBE AWARDS/ clude all types of prime contracts awarded
COMMITMENTS AND PAYMENTS and all types of subcontracts awarded or
committed, including: professional or con-
Recipients of Department of Transpor- sultant services, construction, purchase of
tation (DOT) funds are expected to keep ac- materials or supplies, lease or purchase of
curate data regarding the contracting oppor- equipment and any other types of services.
tunities available to firms paid for with DOT All dollar amounts are to reflect only the
dollars. Failure to submit contracting data Federal share of such contracts and should
relative to the DBE program will result in be rounded to the nearest dollar.
noncompliance with Part 26. All dollar val- Line 8: Prime contracts awarded this pe-
ues listed on this form should represent the riod: The items on this line should cor-
DOT share attributable to the Operating Ad- respond to the contracts directly between
ministration (OA): Federal Highway Admin- the recipient and a supply or service con-
istration (FHWA), Federal Aviation Admin- tractor, with no intermediaries between the
istration (FAA) or Federal Transit Adminis- two.
tration (FTA) to which this report will be 8(A). Provide the total dollar amount for all
submitted. prime contracts assisted with DOT funds and
1. Indicate the DOT (OA) that provides awarded during this reporting period. This
your Federal financial assistance. If assist- value should include the entire Federal share
ance comes from more than one OA, use sep- of the contracts without removing any
arate reporting forms for each OA. If you are amounts associated with resulting sub-
an FTA recipient, indicate your Vendor contracts.
Number in the space provided. 8(B). Provide the total number of all prime
2. If you are an FAA recipient, indicate the contracts assisted with DOT funds and
relevant AIP Numbers covered by this re- awarded during this reporting period.
port. If you are an FTA recipient, indicate 8(C). From the total dollar amount award-
the Grant/Project numbers covered by this ed in item 8(A), provide the dollar amount
report. If more than ten attach a separate awarded in prime contracts to certified DBE
sheet. firms during this reporting period. This
3. Specify the Federal fiscal year (i.e., Oc- amount should not include the amounts sub
tober 1–September 30) in which the covered contracted to other firms.
reporting period falls. 8(D). From the total number of prime con-
4. State the date of submission of this re- tracts awarded in item 8(B), specify the num-
port. ber of prime contracts awarded to certified
5. Check the appropriate box that indicates DBE firms during this reporting period.
the reporting period that the data provided 8(E&F). This field is closed for data entry.
in this report covers. For FHWA and FTA re- Except for the very rare case of DBE-set
cipients, if this report is due June 1, data asides permitted under 49 CFR part 26, all
should cover October 1–March 31. If this re- prime contracts awarded to DBES are re-
port is due December 1, data should cover garded as race-neutral.
April 1–September 30. If the report is due to 8(G). From the total dollar amount award-
the FAA, data should cover the entire year. ed in item 8(C), provide the dollar amount
6. Provide the name and address of the re- awarded to certified DBEs through the use of
cipient. Race Neutral methods. See the definition of
7. State your overall DBE goal(s) estab- Race Neutral in item 7 and the explanation
lished for the Federal fiscal year of the rein item 8 of project types to include.
port being submitted to and approved by the 8(H). From the total number of prime con-
relevant OA. Your overall goal is to be re- tracts awarded in 8(D), specify the number
ported as well as the breakdown for specific awarded to DBEs through Race Neutral
Race Conscious and Race Neutral projections methods.
(both of which include gender-conscious/neu- 8(I). Of all prime contracts awarded this re-
tral projections). The Race Conscious projec- porting period, calculate the percentage going
tion should be based on measures that focus to DBEs. Divide the dollar amount in item
on and provide benefits only for DBEs. The 8(C) by the dollar amount in item 8(A) to de-
use of contract goals is a primary example of rive this percentage. Round percentage to
a race conscious measure. The Race Neutral the nearest tenth.

projection should include measures that, Line 9: Subcontracts awarded/committed
while benefiting DBEs, are not solely focused this period: Items 9(A)–9(I) are derived in the
295
same way as items 8(A)–8(I), except that 10(A)–10(B). These fields are unavailable for
these calculations should be based on sub- data entry.
contracts rather than prime contracts. Un- 10(C–H). Combine the total values listed on
like prime contracts, which may only be the prime contracts line (Line 8) with the
awarded, subcontracts may be either award- corresponding values on the subcontracts
ed or committed. line (Line 9).
9(A). If filling out the form for general re- 10(I). Of all contracts awarded this report-
porting, provide the total dollar amount of ing period, calculate the percentage going to
subcontracts assisted with DOT funds award- DBEs. Divide the total dollars awarded to
ed or committed during this period. This DBEs in item 10(C) by the dollar amount in
value should be a subset of the total dollars item 8(A) to derive this percentage. Round
awarded in prime contracts in 8(A), and percentage to the nearest tenth.
therefore should never be greater than the
amount awarded in prime contracts. If filling Section B: Breakdown by Ethnicity & Gender of
out the form for project reporting, provide Contracts Awarded to DBEs This Period
the total dollar amount of subcontracts as-
11–17. Further breakdown the contracting
sisted with DOT funds awarded or committed
activity with DBE involvement. The Total
during this period. This value should be a
Dollar Amount to DBEs in 17(C) should equal
subset of the total dollars awarded or pre-
the Total Dollar Amount to DBEs in 10(C).
viously in prime contracts in 8(A). The sum
Likewise the total number of contracts to
of all subcontract amounts in consecutive
DBEs in 17(F) should equal the Total Number
periods should never exceed the sum of all
of Contracts to DBEs in 10(D).
prime contract amounts awarded in those pe-
riods. Line 16: The ‘‘Non-Minority’’ category is
reserved for any firms whose owners are not
9(B). Provide the total number of all sub
members of the presumptively disadvantaged
contracts assisted with DOT funds that were
groups already listed, but who are either
awarded or committed during this reporting
‘‘women’’ OR eligible for the DBE program
period.
on an individual basis. All DBE firms must
9(C). From the total dollar amount of sub
be certified by the Unified Certification Pro-
contracts awarded/committed this period in
gram to be counted in this report.
item 9(A), provide the total dollar amount
awarded in sub contracts to DBEs. Section C: Payments on Ongoing Contracts
9(D). From the total number of sub con-
tracts awarded or committed in item 9(B), Line 18(A–E). Submit information on con-
specify the number of sub contracts awarded tracts that are currently in progress. All dol-
or committed to DBEs. lar amounts are to reflect only the Federal
9(E). From the total dollar amount of sub share of such contracts, and should be round-
contracts awarded or committed to DBEs ed to the nearest dollar.
this period, provide the amount in dollars to 18(A). Provide the total dollar amount paid
DBEs using Race Conscious measures. to all firms performing work on contracts.
9(F). From the total number of sub con- 18(B). Provide the total number of con-
tracts awarded orcommitted to DBEs this tracts where work was performed during the
period, provide the number of sub contracts reporting period.
awarded or committed to DBEs using Race 18(C). From the total number of contracts
Conscious measures. provided in 18(A) provide the total number of
9(G). From the total dollar amount of sub contracts that are currently being performed
contracts awarded/committed to DBEs this by DBE firms for which payments have been
period, provide the amount in dollars to made.
DBEs using Race Neutral measures. 18(D). From the total dollar amount paid
9(H). From the total number of sub con- to all firms in 18(A), provide the total dollar
tracts awarded/committed to DBEs this pe- value paid to DBE firms currently per-
riod, provide the number of sub contracts forming work during this period.
awarded to DBEs using Race Neutral meas- 18(E). Provide the total number of DBE
ures. firms that received payment during this re-
9(I). Of all subcontracts awarded this reporting period. For example, while 3 con-
porting period, calculate the percentage going tracts may be active during this period, one
to DBEs. Divide the dollar amount in item DBE firm may be providing supplies or serv-
9(C) by the dollar amount in item 9(A) to de- ices on all three contracts. This field should
rive this percentage. Round percentage to only list the number of DBE firms per-
the nearest tenth. forming work.
Line 10: Total contracts awarded or com- 18(F). Of all payments made during this pe-
mitted this period. These fields should be riod, calculate the percentage going to
used to show the total dollar value and num- DBEs. Divide the total dollar value to DBEs
ber of contracts awarded to DBEs and to cal- in item 18(D) by the total dollars of all pay-
culate the overall percentage of dollars ments in 18(B). Round percentage to the
awarded to DBEs. nearest tenth.
296
Section D: Actual Payments on Contracts ticipation. Divide the total dollar amount to
Completed This Reporting Period DBEs in item 19(D) by the total dollar value
provided in 19(B) to derive this percentage.
This section should provide information
Round to the nearest tenth.
only on contracts that are closed during this
period. All dollar amounts are to reflect the 20(A)–20(E). Items 21(A)–21(E) are derived in
entire Federal share of such contracts, and the same manner as items 19(A)–19(E), except
should be rounded to the nearest dollar. these figures should be based on contracts
19(A). Provide the total number of con- completed using Race Neutral measures.
tracts completed during this reporting pe- 20(C). This field is closed.
riod that used Race Conscious measures. 21(A)–21(D). Calculate the totals for each
Race Conscious contracts are those with con- column by adding the race conscious and
tract goals or another race conscious meas- neutral figures provided in each row above.
ure. 21(C). This field is closed.
19(B). Provide the total dollar value of 21(E). Calculate the overall percentage of
prime contracts completed this reporting pe- dollars to DBEs on completed contracts. Di-
riod that had race conscious measures. vide the Total DBE participation dollar
19(C). From the total dollar value of prime value in 21(D) by the Total Dollar Value of
contracts completed this period in 19(B), pro- Contracts Completed in 21(B) to derive this
vide the total dollar amount of dollars
percentage. Round to the nearest tenth.
awarded or committed to DBE firms in order
to meet the contract goals. This applies only 23. Name of the Authorized Representative
to Race Conscious contracts. preparing this form.
19(D). Provide the actual total DBE par- 24. Signature of the Authorized Represent-
ticipation in dollars on the race conscious ative.
contracts completed this reporting period. 25. Phone number of the Authorized Rep-
19(E). Of all the contracts completed this resentative.
reporting period using Race Conscious meas- **Submit your completed report to your
ures, calculate the percentage of DBE par- Regional or Division Office.
297
Pt. 26, App. C 49 CFR Subtitle A (10–1–19 Edition)
[79 FR 59601, Oct. 2, 2014]
APPENDIX C TO PART 26—DBE BUSINESS but not limited to assisting them to move
DEVELOPMENT PROGRAM GUIDELINES into non-traditional areas of work and/or
compete in the marketplace outside the DBE
The purpose of this program element is to program, via the provision of training and
further the development of DBEs, including assistance from the recipient.
298
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Office of the Secretary of Transportation Pt. 26, App. C
(A) Each firm that participates in a recipi- its business plan conducted under paragraph
ent’s business development program (BDP) (E) of this appendix. Such forecast should be
program is subject to a program term deter- included in the participant’s business plan.
mined by the recipient. The term should con- The forecast should include:
sist of two stages; a developmental stage and (1) The aggregate dollar value of contracts
a transitional stage. to be sought under the DBE program, reflect-
(B) In order for a firm to remain eligible ing compliance with the business plan;
for program participation, it must continue (2) The aggregate dollar value of contracts
to meet all eligibility criteria contained in to be sought in areas other than traditional
part 26. areas of DBE participation;
(C) By no later than 6 months of program (3) The types of contract opportunities
entry, the participant should develop and being sought, based on the firm’s primary
submit to the recipient a comprehensive line of business; and
business plan setting forth the participant’s (4) Such other information as may be re-
business targets, objectives and goals. The quested by the recipient to aid in providing
participant will not be eligible for program effective business development assistance to
benefits until such business plan is sub- the participant.
mitted and approved by the recipient. The
(G) Program participation is divided into
approved business plan will constitute the
two stages; (1) a developmental stage and (2)
participant’s short and long term goals and
a transitional stage. The developmental
the strategy for developmental growth to the
stage is designed to assist participants to
point of economic viability in non-tradi-
overcome their social and economic dis-
tional areas of work and/or work outside the
DBE program. advantage by providing such assistance as
(D) The business plan should contain at may be necessary and appropriate to enable
least the following: them to access relevant markets and
(1) An analysis of market potential, com- strengthen their financial and managerial
petitive environment and other business skills. The transitional stage of program par-
analyses estimating the program partici- ticipation follows the developmental stage
pant’s prospects for profitable operation dur- and is designed to assist participants to
ing the term of program participation and overcome, insofar as practical, their social
after graduation from the program. and economic disadvantage and to prepare
(2) An analysis of the firm’s strengths and the participant for leaving the program.
weaknesses, with particular attention paid (H) The length of service in the program
to the means of correcting any financial, term should not be a pre-set time frame for
managerial, technical, or labor conditions either the developmental or transitional
which could impede the participant from re- stages but should be figured on the number
ceiving contracts other than those in tradi- of years considered necessary in normal pro-
tional areas of DBE participation. gression of achieving the firm’s established
(3) Specific targets, objectives, and goals goals and objectives. The setting of such
for the business development of the partici- time could be factored on such items as, but
pant during the next two years, utilizing the not limited to, the number of contracts, ag-
results of the analysis conducted pursuant to gregate amount of the contract received,
paragraphs (C) and (D)(1) of this appendix; years in business, growth potential, etc.
(4) Estimates of contract awards from the (I) Beginning in the first year of the transi-
DBE program and from other sources which tional stage of program participation, each
are needed to meet the objectives and goals participant should annually submit for in-
for the years covered by the business plan; clusion in its business plan a transition man-
and agement plan outlining specific steps to pro-
(5) Such other information as the recipient mote profitable business operations in areas
may require. other than traditional areas of DBE partici-
(E) Each participant should annually re- pation after graduation from the program.
view its currently approved business plan The transition management plan should be
with the recipient and modify the plan as submitted to the recipient at the same time
may be appropriate to account for any other modifications are submitted pursuant
changes in the firm’s structure and redefined to the annual review under paragraph (E) of
needs. The currently approved plan should be this section. The plan should set forth the
considered the applicable plan for all pro- same information as required under para-
gram purposes until the recipient approves graph (F) of steps the participant will take
in writing a modified plan. The recipient to continue its business development after
should establish an anniversary date for re- the expiration of its program term.
view of the participant’s business plan and (J) When a participant is recognized as suc-
contract forecasts. cessfully completing the program by sub-
(F) Each participant should annually fore- stantially achieving the targets, objectives
cast in writing its need for contract awards and goals set forth in its program term, and
for the next program year and the suc- has demonstrated the ability to compete in
ceeding program year during the review of the marketplace, its further participation
299
Pt. 26, App. D 49 CFR Subtitle A (10–1–19 Edition)
within the program may be determined by obtain the approval of the concerned oper-
the recipient. ating administration.
(K) In determining whether a concern has (B)(1) Any mentor-protégé relationship
substantially achieved the goals and objec- shall be based on a written development
tives of its business plan, the following fac- plan, approved by the recipient, which clear-
tors, among others, should be considered by ly sets forth the objectives of the parties and
the recipient: their respective roles, the duration of the ar-
(1) Profitability; rangement and the services and resources to
(2) Sales, including improved ratio of non- be provided by the mentor to the protégé.
traditional contracts to traditional-type The formal mentor-protégé agreement may
contracts; set a fee schedule to cover the direct and in-
(3) Net worth, financial ratios, working direct cost for such services rendered by the
capital, capitalization, access to credit and mentor for specific training and assistance
capital; to the protégé through the life of the agree-
(4) Ability to obtain bonding; ment. Services provided by the mentor may
(5) A positive comparison of the DBE’s be reimbursable under the FTA, FHWA, and
business and financial profile with profiles of FAA programs.
non-DBE businesses in the same area or (2) To be eligible for reimbursement, the
similar business category; and mentor’s services provided and associated
(6) Good management capacity and capa- costs must be directly attributable and prop-
bility. erly allowable to specific individual con-
(L) Upon determination by the recipient tracts. The recipient may establish a line
that the participant should be graduated item for the mentor to quote the portion of
from the developmental program, the recipi-
the fee schedule expected to be provided dur-
ent should notify the participant in writing
ing the life of the contract. The amount
of its intent to graduate the firm in a letter
claimed shall be verified by the recipient and
of notification. The letter of notification
paid on an incremental basis representing
should set forth findings, based on the facts,
the time the protégé is working on the con-
for every material issue relating to the basis
tract. The total individual contract figures
of the program graduation with specific rea-
accumulated over the life of the agreement
sons for each finding. The letter of notifica-
shall not exceed the amount stipulated in
tion should also provide the participant 45
the original mentor/protégé agreement.
days from the date of service of the letter to
(C) DBEs involved in a mentor-protégé
submit in writing information that would ex-
agreement must be independent business en-
plain why the proposed basis of graduation is
tities which meet the requirements for cer-
not warranted.
tification as defined in subpart D of this
(M) Participation of a DBE firm in the pro-
part. A protégé firm must be certified before
gram may be discontinued by the recipient
it begins participation in a mentor-protégé
prior to expiration of the firm’s program
arrangement. If the recipient chooses to rec-
term for good cause due to the failure of the
ognize mentor/protégé agreements, it should
firm to engage in business practices that will
establish formal general program guidelines.
promote its competitiveness within a reason-
These guidelines must be submitted to the
able period of time as evidenced by, among
operating administration for approval prior
other indicators, a pattern of inadequate per-
to the recipient executing an individual
formance or unjustified delinquent perform-
contractor/ subcontractor mentor-protégé
ance. Also, the recipient can discontinue the
agreement.
participation of a firm that does not actively
pursue and bid on contracts, and a firm that,
without justification, regularly fails to re-
APPENDIX E TO PART 26—INDIVIDUAL
spond to solicitations in the type of work it DETERMINATIONS OF SOCIAL AND
is qualified for and in the geographical areas ECONOMIC DISADVANTAGE
where it has indicated availability under its
The following guidance is adapted, with
approved business plan. The recipient should
minor modifications, from SBA regulations
take such action if over a 2-year period a
concerning social and economic disadvan-
DBE firm exhibits such a pattern.
tage determinations (see 13 CFR 124.103(c)
APPENDIX D TO PART 26—MENTOR- and 124.104).
PROTÉGÉ PROGRAM GUIDELINES SOCIAL DISADVANTAGE
(A) The purpose of this program element is I. Socially disadvantaged individuals are
to further the development of DBEs, includ- those who have been subjected to racial or
ing but not limited to assisting them to ethnic prejudice or cultural bias within
move into non-traditional areas of work and/ American society because of their identities
or compete in the marketplace outside the as members of groups and without regard to
DBE program, via the provision of training their individual qualities. Social disadvan-
and assistance from other firms. To operate tage must stem from circumstances beyond
a mentor-protégé program, a recipient must their control. Evidence of individual social
300
Office of the Secretary of Transportation Pt. 26, App. E
disadvantage must include the following ele- pairments)—may be socially and economi-
ments: cally disadvantaged.
(A) At least one objective distinguishing III. Under the laws concerning social and
feature that has contributed to social dis- economic disadvantage, people with disabil-
advantage, such as race, ethnic origin, gen- ities are not a group presumed to be dis-
der, disability, long-term residence in an en- advantaged. Nevertheless, recipients should
vironment isolated from the mainstream of look carefully at individual showings of dis-
American society, or other similar causes advantage by individuals with disabilities,
not common to individuals who are not so- making a case-by-case judgment about
cially disadvantaged; whether such an individual meets the cri-
(B) Personal experiences of substantial and teria of this appendix. As public entities sub-
chronic social disadvantage in American so- ject to Title II of the ADA, recipients must
ciety, not in other countries; and also ensure their DBE programs are acces-
(C) Negative impact on entry into or ad- sible to individuals with disabilities. For ex-
vancement in the business world because of ample, physical barriers or the lack of appli-
the disadvantage. Recipients will consider cation and information materials in acces-
any relevant evidence in assessing this ele- sible formats cannot be permitted to thwart
ment. In every case, however, recipients will the access of potential applicants to the cer-
consider education, employment and busi- tification process or other services made
ness history, where applicable, to see if the available to DBEs and applicants.
totality of circumstances shows disadvan- ECONOMIC DISADVANTAGE
tage in entering into or advancing in the
business world. (A) General. Economically disadvantaged
(1) Education. Recipients will consider such individuals are socially disadvantaged indi-
factors as denial of equal access to institu- viduals whose ability to compete in the free
tions of higher education and vocational enterprise system has been impaired due to
training, exclusion from social and profes- diminished capital and credit opportunities
sional association with students or teachers, as compared to others in the same or similar
denial of educational honors rightfully line of business who are not socially dis-
earned, and social patterns or pressures advantaged.
which discouraged the individual from pur- (B) Submission of narrative and financial in-
suing a professional or business education. formation. (1) Each individual claiming eco-
nomic disadvantage must describe the condi-
(2) Employment. Recipients will consider
tions which are the basis for the claim in a
such factors as unequal treatment in hiring,
narrative statement, and must submit per-
promotions and other aspects of professional
sonal financial information.
advancement, pay and fringe benefits, and
(2) [Reserved]
other terms and conditions of employment;
(C) Factors to be considered. In considering
retaliatory or discriminatory behavior by an diminished capital and credit opportunities,
employer or labor union; and social patterns recipients will examine factors relating to
or pressures which have channeled the indi- the personal financial condition of any indi-
vidual into non-professional or non-business vidual claiming disadvantaged status, in-
fields. cluding personal income for the past two
(3) Business history. The recipient will con- years (including bonuses and the value of
sider such factors as unequal access to credit company stock given in lieu of cash), per-
or capital, acquisition of credit or capital sonal net worth, and the fair market value of
under commercially unfavorable cir- all assets, whether encumbered or not. Re-
cumstances, unequal treatment in opportu- cipients will also consider the financial con-
nities for government contracts or other dition of the applicant compared to the fi-
work, unequal treatment by potential cus- nancial profiles of small businesses in the
tomers and business associates, and exclu- same primary industry classification, or, if
sion from business or professional organiza- not available, in similar lines of business,
tions. which are not owned and controlled by so-
II. With respect to paragraph I.(A) of this cially and economically disadvantaged indi-
appendix, the Department notes that people viduals in evaluating the individual’s access
with disabilities have disproportionately low to credit and capital. The financial profiles
incomes and high rates of unemployment. that recipients will compare include total
Many physical and attitudinal barriers re- assets, net sales, pre-tax profit, sales/work-
main to their full participation in education, ing capital ratio, and net worth.
employment, and business opportunities (D) Transfers within two years. (1) Except as
available to the general public. The Ameri- set forth in paragraph (D)(2) of this appendix,
cans with Disabilities Act (ADA) was passed recipients will attribute to an individual
in recognition of the discrimination faced by claiming disadvantaged status any assets
people with disabilities. It is plausible that which that individual has transferred to an
many individuals with disabilities—espe- immediate family member, or to a trust, a

cially persons with severe disabilities (e.g., beneficiary of which is an immediate family
significant mobility, vision, or hearing im- member, for less than fair market value,
301
Pt. 26, App. E 49 CFR Subtitle A (10–1–19 Edition)
within two years prior to a concern’s appli- occasions, such as birthdays, graduations,
cation for participation in the DBE program, anniversaries, and retirements.
unless the individual claiming disadvantaged (3) In determining an individual’s access to
status can demonstrate that the transfer is capital and credit, recipients may consider
to or on behalf of an immediate family mem- any assets that the individual transferred
ber for that individual’s education, medical within such two-year period described by
expenses, or some other form of essential paragraph (D)(1) of this appendix that are
support. not considered in evaluating the individual’s
(2) Recipients will not attribute to an indi- assets and net worth (e.g., transfers to char-
vidual claiming disadvantaged status any as- ities).
sets transferred by that individual to an im-
mediate family member that are consistent [64 FR 5126, Feb. 2, 1999, as amended at 68 FR
with the customary recognition of special 35559, June 16, 2003]
302
Office of the Secretary of Transportation Pt. 26, App. F
APPENDIX F TO PART 26—UNIFORM CERTIFICATION APPLICATION FORM

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Pt. 26, App. F 49 CFR Subtitle A (10–1–19 Edition)
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[79 FR 59603, Oct. 2, 2014]

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Office of the Secretary of Transportation Pt. 26, App. G
APPENDIX G TO PART 26—PERSONAL NET WORTH STATEMENT

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Pt. 26, App. G 49 CFR Subtitle A (10–1–19 Edition)
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Pt. 26, App. G 49 CFR Subtitle A (10–1–19 Edition)
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[79 FR 59617, Oct. 2, 2014]

321
ER02OC14.019</GPH>
PART 27—NONDISCRIMINATION or activity receiving Federal financial

ON THE BASIS OF DISABILITY IN assistance.
PROGRAMS OR ACTIVITIES RE- § 27.3 Applicability.
CEIVING FEDERAL FINANCIAL
ASSISTANCE (a) This part applies to each recipient
of Federal financial assistance from
Subpart A—General the Department of Transportation and
to each program or activity that re-
Sec. ceives such assistance.
27.1 Purpose. (b) Design, construction, or alter-
27.3 Applicability. ation of buildings or other fixed facili-
27.5 Definitions. ties by public entities subject to part
27.7 Discrimination prohibited.
37 of this title shall be in conformance
27.9 Assurance required.
27.11 Remedial action, voluntary action, with appendices B and D of 36 CFR part
and compliance planning. 1191, as modified by appendix A to part
27.13 Designation of responsible employee 37 of this title. All other entities sub-
and adoption of complaint procedures. ject to section 504 shall design, con-
27.15 Notice. struct, or alter buildings, or other fixed
27.17 Effect of State or local law. facilities, in conformance with appen-
27.19 Compliance with Americans with Dis- dices B and D of 36 CFR part 1191, as
abilities Act requirements and FTA pol- modified by appendix A to part 37 of
icy.
this title.
Subpart B—Accessibility Requirements in [44 FR 31468, May 31, 1979, as amended at 56
Specific Operating Administration Pro- FR 45621, Sept. 6, 1991; 68 FR 51390, Aug. 26,
grams: Airports, Railroads, and High- 2003; 80 FR 46513, Aug. 5, 2015]
ways
27.71 Airport facilities.
27.72 Boarding assistance for aircraft. As used in this part:
27.75 Federal Highway Administration— Act means the Rehabilitation Act of
highways. 1973, Public Law 93–112, as amended.
27.77 Recipients of Essential Air Service Applicant means one who submits an
subsidies. application, request, or plan to be ap-
proved by a Departmental official or by
Subpart C—Enforcement
a primary recipient as a condition to
27.121 Compliance information. eligibility for Federal financial assist-
27.123 Conduct of investigations. ance, and application means such an ap-
27.125 Compliance procedure. plication, request, or plan.
27.127 Hearings. Commercial service airport means an
27.129 Decisions and notices.
airport that is defined as a commercial
AUTHORITY: Section 504 of the Rehabilita- service airport for purposes of the Fed-
tion Act of 1973, as amended (29 U.S.C. 794); eral Aviation Administration’s Airport
49 U.S.C. 5332. Improvement Program and that en-
SOURCE: 44 FR 31468, May 31, 1979, unless planes annually 2500 or more pas-
otherwise noted. sengers and receives scheduled pas-
senger service of aircraft.
Subpart A—General Department means the Department of
Transportation.
§ 27.1 Purpose. Discrimination means denying persons
The purpose of this part is to carry with a disability the opportunity to
out the intent of section 504 of the Re- participate in or benefit from any pro-
habilitation Act of 1973 (29 U.S.C. 794) gram or activity receiving Federal fi-
as amended, to the end that no other- nancial assistance.
wise qualified individual with a dis- Facility means all or any portion of
ability in the United States shall, sole- buildings, structures, vehicles, equip-
ly by reason of his or her disability, be ment, roads, walks, parking lots, or
excluded from the participation in, be other real or personal property or in-
denied the benefits of, or be subjected terest in such property.
to discrimination under any program
322
Federal financial assistance means any mental or physical impairment that

grant, loan, contract (other than a pro- substantially limits one or more major
curement contract or a contract of in- life activities.
surance or guaranty), or any other ar- (d) Is regarded as having an impairment
rangement by which the Department means:
provides or otherwise makes available (1) Has a physical or mental impair-
assistance in the form of: ment that does not substantially limit
(a) Funds; major life activities but that is treated
(b) Services of Federal personnel; or by a recipient as constituting such a
(c) Real or personal property or any limitation;
interest in, or use of such property, in- (2) Has a physical or mental impair-
cluding: ment that substantially limits major
(1) Transfers or leases of such prop- life activity only as a result of the atti-
erty for less than fair market value or tudes of others toward such an impair-
for reduced consideration; and ment; or
(2) Proceeds from a subsequent trans- (3) Has none of the impairments set
fer or lease of such property if the Fed- forth in paragraph (1) of this definition,
eral share of its fair market value is but is treated by a recipient as having
not returned to the Federal Govern- such an impairment.
ment. Head of Operating Administration
Person with a disability means (1) any means the head of an operating admin-
person who (a) has a physical or mental istration within the Department (U.S.
impairment that substantially limits Coast Guard, Federal Highway Admin-
one or more major life activities, (b) istration, Federal Aviation Adminis-
has a record of such an impairment, or tration, Federal Railroad Administra-
(c) is regarded as having such an im- tion, National Highway Traffic Safety
pairment. (2) As used in this definition, Administration, Federal Transit Ad-
the phrase: ministration, and Research and Special
(a) Physical or mental impairment Programs Administration) providing
means (i) any physiological disorder or Federal financial assistance to the re-
condition, cosmetic disfigurement, or cipient.
anatomical loss affecting one or more Primary recipient means any recipient
of the following body systems: neuro- that is authorized or required to extend
logical; musculoskeletal; special sense Federal financial assistance from the
organs; respiratory, including speech Department to another recipient.
organs; cardiovascular, reproductive; Program or activity means all of the
digestive; genito-urinary; hemic and operations of any entity described in
lymphatic; skin; and endocrine; or (ii) paragraphs (1) through (4) of this defi-
any mental or psychological disorder, nition, any part of which is extended
such as mental retardation, organic Federal financial assistance:
brain syndrome, emotional or mental (1)(i) A department, agency, special
illness, and specific learning disabil- purpose district, or other instrumen-
ities. The term physical or mental im- tality of a State or of a local govern-
pairment includes, but is not limited to, ment; or
such diseases and conditions as ortho- (ii) The entity of such State or local
pedic, visual, speech, and hearing im- government that distributes such as-
pairments; cerebral palsy; epilepsy; sistance and each such department or
muscular dystrophy; multiple sclerosis; agency (and each other State or local
cancer; heart disease; mental retarda- government entity) to which the as-
tion; emotional illness; drug addiction; sistance is extended, in the case of as-
and alcoholism. sistance to a State or local govern-
(b) Major life activities means func- ment;
tions such as caring for one’s self, per- (2)(i) A college, university, or other
forming manual tasks, walking, seeing, postsecondary institution, or a public
hearing, speaking, breathing, learning, system of higher education; or
and working. (ii) A local educational agency (as de-
(c) Has a record of such an impairment fined in 20 U.S.C. 7801), system of voca-
means has a history of, or has been tional education, or other school sys-
classified, or misclassified, as having a tem;
323
(3)(i) An entire corporation, partner- Section 504 means section 504 of the
ship, or other private organization, or Act.
an entire sole proprietorship— Special service system means a trans-
(A) If assistance is extended to such portation system specifically designed
corporation, partnership, private orga- to serve the needs of persons who, by
nization, or sole proprietorship as a reason of disability, are physically un-
whole; or able to use bus systems designed for
(B) Which is principally engaged in use by the general public. Special serv-
the business of providing education, ice is characterized by the use of vehi-
health care, housing, social services, or cles smaller than a standard transit
parks and recreation; or bus which are usable by persons with a
(ii) The entire plant or other com- disability, demand-responsive service,
parable, geographically separate facil- point of origin to point of destination
ity to which Federal financial assist- service, and flexible routing and sched-
ance is extended, in the case of any uling.
other corporation, partnership, private [44 FR 31468, May 31, 1979, as amended by
organization, or sole proprietorship; or Amdt. 1, 46 FR 37492, July 20, 1981; Amdt. 27–
(4) Any other entity which is estab- 3, 51 FR 19017, May 23, 1986; 56 FR 45621, Sept.
lished by two or more of the entities 6, 1991; 61 FR 32354, June 24, 1996; 61 FR 56424,
described in paragraph (1), (2), or (3) of Nov. 1, 1996; 68 FR 51390, Aug. 26, 2003; 79 FR
this definition. 21405, Apr. 16, 2014]
Qualified person with a disability
means: § 27.7 Discrimination prohibited.
(1) With respect to employment, a (a) General. No qualified person with
person with a disability who, with rea- a disability shall, solely by reason of
sonable accommodation and within his disability, be excluded from partici-
normal safety requirements, can per- pation in, be denied the benefits of, or
form the essential functions of the job otherwise be subjected to discrimina-
in question, but the term does not in- tion under any program or activity
clude any individual who is an alco- that receives Federal financial assist-
holic or drug abuser whose current use ance administered by the Department
of alcohol or drugs prevents such per- of Transportation.
son from performing the duties of the (b) Discriminatory actions prohibited.
job in question or whose employment, (1) A recipient, in providing any aid,
by reason of such current alcohol or benefit, or service, may not, directly or
drug abuse, would constitute a direct through contractual, licensing, or
threat to property or the safety of oth- other arrangements, on the basis of
ers; and disability:
(2) With respect to other services, a (i) Deny a qualified person with a dis-
person with a disability who meets the ability the opportunity to participate
essential eligibility requirements for in or benefit from the aid, benefit, or
the receipt of such services. service;
Recipient means any State, territory, (ii) Afford a qualified person with a
possession, the District of Columbia, or disability an opportunity to partici-
Puerto Rico, or any political subdivi- pate in or benefit from the aid, benefit,
sion thereof, or instrumentality there- or service that is not substantially
of, any public or private agency, insti- equal to that afforded persons who are
tution, organization, or other entity, not disabled;
or any individual in any State, terri- (iii) Provide a qualified person with a
tory, possession, the District of Colum- disability with an aid, benefit, or serv-
bia, or Puerto Rico, to whom Federal ice that is not as effective in affording
financial assistance from the Depart- equal opportunity to obtain the same
ment is extended directly or through result, to gain the same benefit, or to
another recipient, including any suc- reach the same level of achievement as
cessor, assignee, or transferee thereof, persons who are not disabled;
but such term does not include any ul- (iv) Provide different or separate aid,
timate beneficiary. benefits, or services to persons with a
Secretary means the Secretary of disability or to any class of persons

Transportation. with a disability unless such action is
324
necessary to provide qualified persons (5) In determining the site or loca-

with a disability with aid, benefits or tion of a facility, an applicant or a re-
services that are as effective as those cipient may not make selections:
provided to persons who are not dis- (i) That have the effect of excluding
abled; persons with a disability from, denying
(v) Aid or perpetuate discrimination them the benefits of, or otherwise sub-
against a qualified person with a dis- jecting them to discrimination under
ability by providing financial or other any program or activity that receives
assistance to an agency, organization, Federal financial assistance, or
or person that discriminates on the (ii) That have the purpose or effect of
basis of disability in providing any aid, defeating or substantially impairing
benefit, or service to beneficiaries of the accomplishment of the objectives
the recipient’s program or activity; of the program or activity with respect
(vi) Deny a qualified person with a to persons with a disability.
disability the opportunity to partici- (6) As used in this section, the aid
pate in conferences, in planning or ad- benefit, or service provided under a
vising recipients, applicants or would- program or activity receiving Federal
be applicants, or financial assistance includes any aid,
(vii) Otherwise limit a qualified per- benefit, or service provided in or
son with a disability in the enjoyment through a facility that has been con-
of any right, privilege, advantage, or structed, expanded, altered, leased or
opportunity enjoyed by others receiv- rented, or otherwise acquired, in whole
ing an aid, benefit, or service. or in part, with Federal financial as-
(2) For purposes of this part, aids, sistance.
benefits, and services, to be equally ef- (c) Communications. Recipients shall
fective, are not required to produce the take appropriate steps to ensure that
identical result or level of achievement communications with their applicants,
for persons with and without a dis- employees, and beneficiaries are avail-
ability, but must afford persons with a able to persons with impaired vision
disability equal opportunity to obtain and hearing.
the same result, to gain the same ben- (d) Aid, benefits, or services limited by
efit, or to reach the same level of Federal law. For aid, benefits, or serv-
achievement, in the most integrated ices authorized by Federal statute or
setting that is reasonably achievable. executive order that are designed espe-
(3) Even if separate or different aid, cially for persons with a disability, or
benefits, or services are available to for a particular class of persons with a
persons with a disability, a recipient disability, the exclusion of persons
may not deny a qualified person with a without a disability or other classes of
disability the opportunity to partici- persons with a disability is not prohib-
pate in the programs or activities that ited by this part.
are not separate or different. (e) Reasonable accommodations. A re-
(4) A recipient may not, directly or cipient shall make reasonable accom-
through contractual or other arrange- modations in policies, practices, or
ments, utilize criteria or methods of procedures when such accommodations
administration: are necessary to avoid discrimination
(i) That have the effect of subjecting on the basis of disability unless the re-
qualified persons with a disability to cipient can demonstrate that making
discrimination on the basis of dis- the accommodations would fundamen-
ability, tally alter the nature of the service,
(ii) That have the purpose or effect of program, or activity or result in an
defeating or substantially reducing the undue financial and administrative
likelihood that persons with a dis- burden. For the purposes of this sec-
ability can benefit by the objectives of tion, the term reasonable accommoda-
the recipient’s program or activity, or tion shall be interpreted in a manner
(iii) That yield or perpetuate dis- consistent with the term ‘‘reasonable
crimination against another recipient modifications’’ as set forth in the
if both recipients are subject to com- Americans with Disabilities Act title II
mon administrative control or are regulations at 28 CFR 35.130(b)(7), and

agencies of the same State. not as it is defined or interpreted for
325
the purposes of employment discrimi- the property is used for the purpose for
nation under title I of the ADA (42 which Federal financial assistance was
U.S.C. 12111–12112) and its imple- provided or for a similar purpose.
menting regulations at 29 CFR part (3) When Federal financial assistance
1630. is provided to the recipient in the form
[44 FR 31468, May 31, 1979, as amended at 68 of, or is used by the recipient to obtain,
FR 51390, Aug. 26, 2003; 79 FR 21405, Apr. 16, personal property, the assurance pro-
2014; 80 FR 13260, Mar. 13, 2015] vided by the recipient shall obligate
the recipient to comply with the re-
§ 27.9 Assurance required. quirements of this part for the period
(a) General. Each application for Fed- it retains ownership or possession of
eral financial assistance to which this the property or the property is used by
part applies, and each application to a transferee for purposes directly re-
provide a facility, shall, as a condition lated to the operations of the recipient.
to approval or extension of any Federal (4) When Federal financial assistance
financial assistance pursuant to the ap- is used by a recipient for purposes
plication, contain, or be accompanied other than to obtain property, the as-
by, written assurance that the program surance provided shall obligate the re-
or activity will be conducted or the fa- cipient to comply with the require-
cility operated in compliance with all
ments of this part for the period during
the requirements imposed by or pursu-
which the Federal financial assistance
ant to this part. An applicant may in-
is extended to the program or activity.
corporate these assurances by ref-
erence in subsequent applications to [44 FR 31468, May 31, 1979, as amended at 68
the Department. FR 51390, Aug. 26, 2003]
(b) Future effect of assurances. Recipi-
ents of Federal financial assistance, § 27.11 Remedial action, voluntary ac-
and transferees of property obtained by tion and compliance planning.
a recipient with the participation of (a) Remedial action. (1) If the respon-
Federal financial assistance, are bound sible Departmental official finds that a
by the recipient’s assurance under the qualified person with a disability has
following circumstances: been excluded from participation in,
(1) When Federal financial assistance denied the benefits of, or otherwise
is provided in the form of a conveyance subjected to discrimination under, any
of real property or an interest in real program or activity in violation of this
property from the Department of part, the recipient shall take such re-
Transportation to a recipient, the in- medial action as the responsible De-
strument of conveyance shall include a partmental official deems necessary to
convenant running with the land bind- overcome the effects of the violation.
ing the recipient and subsequent trans-
(2) Where a recipient is found to have
ferees to comply with the requirements
violated this part, and where another
of this part for so long as the property
is used for the purpose for which the recipient exercises control over the re-
Federal financial assistance was pro- cipient that has violated this part, the
vided or for a similar purpose. responsible Departmental official,
(2) When Federal financial assistance where appropriate, may require either
is used by a recipient to purchase or or both recipients to take remedial ac-
improve real property, the assurance tion.
provided by the recipient shall obligate (3) The responsible Departmental of-
the recipient to comply with the re- ficial may, where necessary to over-
quirements of this part and require any come the effects of a violation of this
subsequent transferee of the property, part, require a recipient to take reme-
who is using the property for the pur- dial action:
pose for which the Federal financial as- (i) With respect to persons with a dis-
sistance was provided, to agree in writ- ability who are no longer participants
ing to comply with the requirements of in the recipient’s program or activity
this part. The obligations of the recipi- but who were participants in the pro-
ent and transferees under this part gram or activity when such discrimina-
shall continue in effect for as long as tion occurred, and
326
(ii) With respect to persons with a (i) A list of the interested persons
disability who would have been partici- consulted;
pants in the program or activity had (ii) A description of areas examined
the discrimination not occurred. and any problems indentified; and
(b) Voluntary action. A recipient may (iii) A description of any modifica-
take steps, in addition to any action tions made and of any remedial steps
that is required by this part, to assure taken.
the full participation in the recipient’s [44 FR 31468, May 31, 1979, as amended at 68
program or activity by qualified per- FR 51390, Aug. 26, 2003; 79 FR 21405, Apr. 16,
sons with a disability. 2014]
(c) Compliance planning. (1) A recipi-
ent shall, within 90 days from the effec- § 27.13 Designation of responsible em-
tive date of this part, designate and ployee and adoption of complaint
forward to the head of any operating procedures.
administration providing financial as- (a) Designation of responsible employee.
sistance, with a copy to the responsible Each recipient shall designate at least
Departmental official the names, ad- one person to coordinate its efforts to
dresses, and telephone numbers of the comply with this part.
persons responsible for evaluating the (b) Adoption of complaint procedures. A
recipient’s compliance with this part. recipient shall adopt procedures that
(2) A recipient shall, within 180 days incorporate appropriate due process
from the effective date of this part, standards and provide for the prompt
after consultation at each step in para- and equitable resolution of complaints
graphs (c)(2) (i)–(iii) of this section alleging any action prohibited by this
with interested persons, including per- part and 49 CFR parts 37, 38, and 39.
sons with a disability and organiza- The procedures shall meet the fol-
tions representing persons with a dis- lowing requirements:
ability: (1) The process for filing a complaint,
(i) Evaluate its current policies and including the name, address, telephone
practices for implementing these regu- number, and email address of the em-
lations, and notify the head of the op- ployee designated under paragraph (a)
erating administration of the comple- of this section, must be sufficiently ad-
tion of this evaluation; vertised to the public, such as on the
(ii) Identify shortcomings in compli- recipient’s Web site;
ance and describe the methods used to (2) The procedures must be accessible
remedy them; to and usable by individuals with dis-
(iii) Begin to modify, with official ap- abilities;
proval of recipient’s management, any (3) The recipient must promptly com-
policies or practices that do not meet municate its response to the complaint
the requirements of this part according allegations, including its reasons for
to a schedule or sequence that includes the response, to the complainant by a
milestones or measures of achieve- means that will result in documenta-
ment. These modifications shall be tion of the response.
completed within one year from the ef- [80 FR 13260, Mar. 13, 2015]
fective date of this part;
(iv) Take appropriate remedial steps § 27.15 Notice.
to eliminate the effects of any dis- (a) A recipient shall take appropriate
crimination that resulted from pre- initial and continuing steps to notify
vious policies and practices; and participants, beneficiaries, applicants,
(v) Establish a system for periodi- and employees, including those with
cally reviewing and updating the eval- impaired vision or hearing, and unions
uation. or professional organizations holding
(3) A recipient shall, for at least collective bargaining or professional
three years following completion of the agreements with the recipient, that it
evaluation required under paragraph does not discriminate on the basis of
(c)(2) of this section, maintain on file, disability. The notification shall state,
make available for public inspection, where appropriate, that the recipient
and furnish upon request to the head of does not discriminate in admission or
the operating administration: access to, or treatment or employment
327
in, its programs or activities. The noti- own right. Compliance with all these
fication shall also include an identi- regulations is a condition of receiving
fication of the responsible employee Federal financial assistance from the
designated pursuant to § 27.13(a). A re- Department of Transportation. Any re-
cipient shall make the initial notifica- cipient not in compliance with this re-
tion required by this section within 90 quirement shall be subject to enforce-
days of the effective date of this part. ment action under subpart C of this
Methods of initial and continuing noti- part.
fication may include the posting of no- (b) Consistent with FTA policy, any
tices, publication in newspapers and recipient of Federal financial assist-
magazines, placement of notices in re- ance from the Federal Transit Admin-
cipients’ publications and distribution istration whose solicitation was made
of memoranda or other written com- before August 26, 1990, and is for one or
munications. more inaccessible vehicles, shall pro-
(b) If a recipient publishes or uses re- vide written notice to the Secretary
cruitment materials or publications (e.g., in the case of a solicitation made
containing general information that it in the past under which the recipient
makes available to participants, bene- can order additional new buses after
ficiaries, applicants, or employees, it the effective date of this section). The
shall include in those materials or pub- Secretary shall review each case indi-
lications a statement of the policy de- vidually, and determine whether the
scribed in paragraph (a) of this section. Department will continue to partici-
A recipient may meet the requirement pate in the Federal grant, consistent
of this paragraph either by including with the provisions in the grant agree-
appropriate inserts in existing mate- ment between the Department and the
rials and publications or by revising recipient.
and reprinting the materials and publi- [55 FR 40763, Oct. 4, 1990, as amended at 56 FR
cations. In either case, the addition or 45621, Sept. 6, 1991; 61 FR 32354, June 24, 1996;
revision must be specially noted. 79 FR 21405, Apr. 16, 2014]
§ 27.17 Effect of State or local law.
Subpart B—Accessibility Require-
The obligation to comply with this ments in Specific Operating
part is not obviated or affected by any
State or local law. Administration Programs: Air-
ports, Railroads, and High-
§ 27.19 Compliance with Americans ways
with Disabilities Act requirements
and FTA policy. § 27.71 Airport facilities.
(a) Recipients subject to this part (a) This section applies to all ter-
(whether public or private entities as minal facilities and services owned,
defined in 49 CFR part 37) shall comply leased, or operated on any basis by a
with all applicable requirements of the recipient of DOT financial assistance
Americans with Disabilities Act (ADA) at a commercial service airport, in-
of 1990 (42 U.S.C. 12101–12213) including cluding parking and ground transpor-
the Department’s ADA regulations (49 tation facilities.
CFR parts 37 and 38), the regulations of (b) Airport operators shall ensure
the Department of Justice imple- that the terminal facilities and serv-
menting titles II and III of the ADA (28 ices subject to this section shall be
CFR parts 35 and 36), and the regula- readily accessible to and usable by in-
tions of the Equal Employment Oppor- dividuals with disabilities, including
tunity Commission (EEOC) imple- individuals who use wheelchairs. Air-
menting title I of the ADA (29 CFR port operators shall be deemed to com-
part 1630). Compliance with the EEOC ply with this section 504 obligation if
title I regulations is required as a con- they meet requirements applying to
dition of compliance with section 504 state and local government programs
for DOT recipients even for organiza- or activities and facilities under De-
tions which, because they have fewer partment of Justice (DOJ) regulations
than 25 or 15 employees, would not be implementing Title II of the Americans

subject to the EEOC regulation in its with Disabilities Act (ADA).
328
(c) The airport shall ensure that locating a relief area in the sterile
there is an accessible path between the area, or
gate and the area from which aircraft (ii) A service animal training organi-
are boarded. zation, the airport, and the carriers in
(d) Systems of inter-terminal trans- the terminal in which the relief area
portation, including, but not limited will be located agree that a relief area
to, shuttle vehicles and people movers, would be better placed outside the ter-
shall comply with applicable require- minal’s sterile area. In that event, the
ments of the Department of Transpor- airport must retain documentation evi-
tation’s ADA rules. dencing the recommendation that the
(e) The Americans with Disabilities relief area be located outside of the
Act Accessibility Guidelines sterile area; and
(ADAAGs), including section 10.4 con- (4) To the extent airports have estab-
cerning airport facilities, shall be the lished service animal relief areas prior
standard for accessibility under this to the effective date of this paragraph:
section. (i) Airports that have not consulted
(f) Contracts or leases between car- with a service animal training organi-
riers and airport operators concerning zation shall consult with one or more
the use of airport facilities shall set such organizations regarding the suffi-
forth the respective responsibilities of ciency of all existing service animal re-
the parties for the provision of acces-
lief areas,
sible facilities and services to individ-
(ii) Airports shall meet the require-
uals with disabilities as required by
ments of this section August 4, 2016.
this part and applicable ADA rules of
the Department of Transportation and (i) High-contrast captioning (captioning
Department of Justice for airport oper- that is at least as easy to read as white
ators and applicable Air Carrier Access letters on a consistent black background)
Act rules (49 CFR part 382) for carriers. on television and audio-visual displays.
(g) If an airport operator who re- This paragraph applies to airports with
ceives Federal financial assistance for 10,000 or more annual enplanements.
an existing airport facility has not al- (1) Airport operators must enable or
ready done so, the recipient shall sub- ensure high-contrast captioning at all
mit a transition plan meeting the re- times on all televisions and other
quirements of § 27.65(d) of this part to audio-visual displays that are capable
the FAA no later than March 3, 1997. of displaying captions and that are lo-
(h) Service animal relief areas. Each cated in any gate area, ticketing area,
airport with 10,000 or more annual first-class or other passenger lounge
enplanements shall cooperate with air- provided by a U.S. or foreign carrier, or
lines that own, lease, or control ter- any common area of the terminal to
minal facilities at that airport to pro- which any passengers have access and
vide wheelchair accessible animal re- that are owned, leased, or controlled by
lief areas for service animals that ac- the airport.
company passengers departing, con- (2) With respect to any televisions
necting, or arriving at the airport sub- and other audio-visual displays located
ject to the following requirements: in any gate area, ticketing area, first-
(1) Airports must consult with one or class or other passenger lounge pro-
more service animal training organiza- vided by a U.S. or foreign carrier, or
tions regarding the design, dimensions, any common area of the terminal to
materials and maintenance of service which any passengers have access that
animal relief areas; provide passengers with safety brief-
(2) Airports must establish at least ings, information, or entertainment
one relief area in each airport ter- that do not have high-contrast cap-
minal; tioning capability, an airport operator
(3) Airports must establish the relief must replace or ensure the replacement
area required by paragrah (h)(2) of this of these devices with equipment that
section in the sterile area of each air- does have such capability whenever
port terminal unless: such equipment is replaced in the nor-
(i) The Transportation Security Ad- mal course of operations and/or when-
ministration prohibits the airport from ever areas of the terminal in which
329
such equipment is located undergo sub- to the following technical accessibility

stantial renovation or expansion. standards with respect to their phys-
(3) If an airport installs new tele- ical design and the functions they per-
visions and other audio-visual displays form:
for passenger safety briefings, informa- (1) Self contained. Except for personal
tion, or entertainment on or after Oc- headsets and audio loops, automated
tober 5, 2015, such equipment must kiosks must be operable without re-
have high-contrast captioning capa- quiring the user to attach assistive
bility. technology.
(j) Shared-use automated airport ki- (2) Clear floor or ground space. A clear
osks. This paragraph applies to U.S. floor or ground space complying with
airports with 10,000 or more annual section 305 of the U.S. Department of
enplanements. Justice’s 2010 ADA Standards for Ac-
(1) Airport operators that jointly cessible Design, 28 CFR 35.104 (defining
own, lease, or control automated air- the ‘‘2010 Standards’’ for title II as the
port kiosks with carriers at U.S. air- requirements set forth in appendices B
ports must ensure that all shared-use and D to 36 CFR part 1191 and the re-
automated kiosks installed on or after quirements contained in 28 CFR 35.151)
December 12, 2016 meet the design spec- (hereinafter 2010 ADA Standards) must
ifications set forth in paragraph (k) of be provided.
this section until at least 25 percent of (3) Operable parts. Operable parts
kiosks provided in each location at the must comply with section 309 of the
airport (i.e., each cluster of kiosks and 2010 ADA Standards, and the following
all stand-alone kiosks at the airport) requirements:
meet this specification.
(i) Identification. Operable parts must
(2) Airport operators must ensure
be tactilely discernible without activa-
that at least 25 percent of shared-use
tion;
automated airport kiosks they jointly
(ii) Timing. Where a timed response is
own, lease, or control with carriers in
required, the user must be alerted vis-
each location at the airport meet the
ually and by touch or sound and must
design specifications in paragraph (k)
be given the opportunity to indicate
of this section by December 12, 2022.
that more time is required;
(3) When shared-use kiosks provided
in a location at the airport perform (iii) Status indicators. Status indica-
more than one function (e.g., print tors, including all locking or toggle
boarding passes/bag tags, accept pay- controls or keys (e.g., Caps Lock and
ment for flight amenities such as seat- Num Lock keys), must be discernible
ing upgrades/meals/WiFi access, rebook visually and by touch or sound; and
tickets, etc.), the accessible kiosks (iv) Color. Color coding must not be
must provide all the same functions as used as the only means of conveying
the inaccessible kiosks in that loca- information, indicating an action,
tion. prompting a response, or distin-
(4) Each shared-use automated kiosk guishing a visual element.
that meets the design specifications in (4) Privacy. Automated airport kiosks
paragraph (k) of this section must be must provide the opportunity for the
visually and tactilely identifiable to same degree of privacy of input and
users as accessible (e.g., an inter- output available to all individuals.
national symbol of accessibility affixed However, if an option is provided to
to the front of the device) and main- blank the screen in the speech output
tained in proper working condition. mode, the screen must blank when ac-
(5) Airport operators are jointly and tivated by the user, not automatically.
severally liable with carriers for ensur- (5) Output. Automated airport kiosks
ing that shared-use automated airport must comply with paragraphs (k)(5)(i)
kiosks are compliant with the require- through (iv) of this section.
ments of paragraphs (j) and (k) of this (i) Speech output enabled. Automated
section. airport kiosks must provide an option
(k) Shared-use automated airport ki- for speech output. Operating instruc-
osks provided in accordance with para- tions and orientation, visible trans-
graph (j) of this section must conform action prompts, user input verification,
330
error messages, and all other visual in- (A) Private listening. Where speech re-
formation for full use must be acces- quired by paragraph (k)(5)(i) is deliv-
sible to and independently usable by ered through a mechanism for private
individuals with vision impairments. listening, the automated kiosk must
Speech output must be delivered provide a means for the user to control
through a mechanism that is readily the volume. A function must be pro-
available to all users, including but not vided to automatically reset the vol-
limited to, an industry standard con- ume to the default level after every
nector or a telephone handset. Speech use.
output must be recorded or digitized (B) Speaker volume. Where sound is
human, or synthesized. Speech output delivered through speakers on the
must be coordinated with information automated kiosk, incremental volume
displayed on the screen. Speech output control must be provided with output
must comply with paragraphs amplification up to a level of at least
(k)(5)(i)(A) through (D) of this section. 65 dB SPL. Where the ambient noise
(A) When asterisks or other masking level of the environment is above 45 dB
characters are used to represent per- SPL, a volume gain of at least 20 dB
sonal identification numbers or other above the ambient level must be user
visual output that is not displayed for selectable. A function must be provided
security purposes, the masking char- to automatically reset the volume to
acters must be spoken (‘‘*’’ spoken as the default level after every use.
‘‘asterisk’’) rather than presented as (iii) Captioning. Multimedia content
beep tones or speech representing the that contains speech or other audio in-
concealed information. formation necessary for the com-
(B) Advertisements and other similar prehension of the content must be open
information are not required to be au- or closed captioned.
dible unless they convey information Advertisements and other similar in-
that can be used in the transaction formation are not required to be cap-
being conducted. tioned unless they convey information
(C) Speech for any single function that can be used in the transaction
must be automatically interrupted being conducted.
when a transaction is selected or navi- (iv) Tickets and boarding passes. Where
gation controls are used. Speech must tickets or boarding passes are provided,
be capable of being repeated and tickets and boarding passes must have
paused by the user. an orientation that is tactilely discern-
(D) Where receipts, tickets, or other ible if orientation is important to fur-
outputs are provided as a result of a ther use of the ticket or boarding pass.
transaction, speech output must in- (6) Input. Input devices must comply
clude all information necessary to with paragraphs (k)(6)(i) through (iv) of
complete or verify the transaction, ex- this section.
cept that - (i) Input controls. At least one input
(1) Automated airport kiosk location, control that is tactilely discernible
date and time of transaction, customer without activation must be provided
account numbers, and the kiosk identi- for each function. Where provided, key
fier are not required to be audible; surfaces not on active areas of display
(2) Information that duplicates infor- screens, must be raised above sur-
mation available on-screen and already rounding surfaces. Where touch or
presented audibly is not required to be membrane keys are the only method of
repeated; and input, each must be tactilely discern-
(3) Printed copies of a carrier’s con- ible from surrounding surfaces and ad-
tract of carriage, applicable fare rules, jacent keys.
itineraries and other similar supple- (ii) Alphabetic keys. Alphabetic keys
mental information that may be in- must be arranged in a QWERTY key-
cluded with a boarding pass are not re- board layout. The ‘‘F’’ and ‘‘J’’ keys
quired to be audible. must be tactilely distinct from the
(ii) Volume control. Automated kiosks other keys.
must provide volume control com- (iii) Numeric keys. Numeric keys must
plying with paragraphs (k)(5)(ii)(A) and be arranged in a 12-key ascending or

(B) of this section. descending keypad layout or must be
331
arranged in a row above the alphabetic (b) Airports shall, in cooperation

keys on a QWERTY keyboard. The ‘‘5’’ with carriers serving the airports, pro-
key must be tactilely distinct from the vide boarding assistance to individuals
other keys. with disabilities using mechanical
(iv) Function keys. Function keys lifts, ramps, or other devices that do
must comply with paragraphs not require employees to lift or carry
(k)(6)(iv)(A) and (B) of this section. passengers up stairs. This section ap-
(A) Contrast. Function keys must plies to all aircraft with a passenger
contrast visually from background sur- capacity of 19 or more passenger seats,
faces. Characters and symbols on key except as provided in paragraph (e) of
surfaces must contrast visually from this section. Paragraph (c) of this sec-
key surfaces. Visual contrast must be tion applies to U.S. carriers and para-
either light-on-dark or dark-on-light. graph (d) of this section applies to for-
However, tactile symbols required by eign carriers.
(k)(6)(iv)(B) are not required to comply (c) Each airport operator shall nego-
with paragraph (k)(6)(iv)(A) of this sec- tiate in good faith with each U.S. car-
tion. rier serving the airport concerning the
(B) Tactile symbols. Function key sur- acquisition and use of boarding assist-
faces must have tactile symbols as fol- ance devices to ensure the provision of
lows: Enter or Proceed key: raised cir- mechanical lifts, ramps, or other de-
cle; Clear or Correct key: raised left vices for boarding and deplaning where
arrow; Cancel key: raised letter ex; Add level-entry loading bridges are not
Value key: raised plus sign; Decrease available. The airport operator must
Value key: raised minus sign. have a written, signed agreement with
(7) Display screen. The display screen each U.S. carrier allocating responsi-
must comply with paragraphs (k)(7)(i) bility for meeting the boarding and
and (ii) of this section. deplaning assistance requirements of
(i) Visibility. The display screen must this section between or among the par-
be visible from a point located 40 ties. The agreement shall be made
inches (1015 mm) above the center of available, on request, to representa-
the clear floor space in front of the tives of the Department of Transpor-
automated kiosk. tation.
(ii) Characters. Characters displayed (1) All airport operators and U.S. car-
on the screen must be in a sans serif riers involved are jointly and severally
font. Characters must be 3/16 inch (4.8 responsible for the timely and com-
mm) high minimum based on the up- plete implementation of the agree-
percase letter ‘‘I.’’ Characters must ment.
contrast with their background with a (2) The agreement shall ensure that
minimum luminosity contrast ratio of all lifts and other accessibility equip-
3:1. ment are maintained in proper working
(8) Braille instructions. Braille instruc- condition.
tions for initiating the speech mode (d) Each airport operator shall nego-
must be provided. Braille must comply tiate in good faith with each foreign
with section 703.3 of the 2010 ADA carrier serving the airport concerning
Standards. the acquisition and use of boarding as-
(9) Biometrics. Biometrics must not be sistance devices to ensure the provision
the only means for user identification of mechanical lifts, ramps, or other de-
or control, unless at least two biomet- vices for boarding and deplaning where
ric options that use different biological level-entry loading bridges are not
characteristics are provided. available. The airport operator shall,
[61 FR 56424, Nov. 1, 1996, as amended at 68 by no later than November 3, 2015, sign
FR 51391, Aug. 26, 2003; 78 FR 67917, Nov. 12, a written agreement with the foreign
2013; 80 FR 46513, Aug. 5, 2015] carrier allocating responsibility for
meeting the boarding and deplaning as-
§ 27.72 Boarding assistance for air- sistance requirements of this section
craft. between or among the parties. The
(a) This section applies to airports agreement shall be made available, on
with 10,000 or more annual request, to representatives of the De-

enplanements. partment of Transportation.
332
(1) The agreement shall provide that only way of evacuating the individual
all actions necessary to ensure acces- in the event of an emergency.
sible boarding and deplaning for pas- (g) In the event that airport per-
sengers with disabilities are completed sonnel are involved in providing board-
as soon as practicable, but no later ing assistance, the airport shall ensure
than December 3, 2015. that they are trained to proficiency in
(2) All airport operators and foreign the use of the boarding assistance
carriers involved are jointly and sever- equipment used at the airport and ap-
ally responsible for the timely and propriate boarding assistance proce-
complete implementation of the agree- dures that safeguard the safety and
ment.
dignity of passengers.
(3) The agreement shall ensure that
all lifts and other accessibility equip- [80 FR 46514, Aug. 5, 2015]
ment are maintained in proper working
condition. § 27.75 Federal Highway Administra-
(e) Boarding assistance agreements tion—highways.
required in paragraphs (c) and (d) of (a) New facilities—(1) Highway rest
this section are not required to apply area facilities. All such facilities that
to the following situations: will be constructed with Federal finan-
(1) Access to float planes; cial assistance shall be designed and
(2) Access to the following 19-seat ca- constructed in accordance with the ac-
pacity aircraft models: The Fairchild
cessibility standards referenced in
Metro, the Jetstream 31 and 32, the
§ 27.3(b) of this part.
Beech 1900 (C and D models), and the
Embraer EMB–120; (2) Curb cuts. All pedestrian cross-
(3) Access to any other aircraft model walks constructed with Federal finan-
determined by the Department of cial assistance shall have curb cuts or
Transportation to be unsuitable for ramps to accommodate persons in
boarding and deplaning assistance by wheelchairs, pursuant to section 228 of
lift, ramp, or other suitable device. The the Federal-Aid Highway Act of 1973 (23
Department will make such a deter- U.S.C. 402(b)(1)(F)).
mination if it concludes that— (3) Pedestrian over-passes, under-passes
(i) No existing boarding and and ramps. Pedestrian over-passes,
deplaning assistance device on the under-passes and ramps, constructed
market will accommodate the aircraft with Federal financial assistance, shall
without significant risk of serious be accessible to persons with a dis-
damage to the aircraft or injury to pas- ability, including having gradients no
sengers or employees, or steeper than 10 percent, unless:
(ii) Internal barriers are present in (i) Alternate safe means are provided
the aircraft that would preclude pas- to enable mobility-limited persons to
sengers who use a boarding or aisle cross the roadway at that location; or
chair from reaching a non-exit row (ii) It would be infeasible for mobil-
seat.
ity-limited persons to reach the over-
(f) When level-entry boarding and
passes, under-passes or ramps because
deplaning assistance is not required to
of unusual topographical or architec-
be provided under paragraph (e) of this
tural obstacles unrelated to the feder-
section, or cannot be provided as re-
quired by paragraphs (b), (c), and (d) of ally assisted facility.
this section (e.g., because of mechan- (b) Existing facilities—Rest area facili-
ical problems with a lift), boarding as- ties. Rest area facilities on Interstate
sistance shall be provided by any avail- highways shall be made accessible to
able means to which the passenger con- persons with a disability, including
sents. However, hand-carrying (i.e., di- wheelchair users, within a three-year
rectly picking up the passenger’s body period after the effective date of this
in the arms of one or more carrier per- part. Other rest area facilities shall be
sonnel to effect a level change the pas- made accessible when Federal financial
senger needs to enter or leave the air- assistance is used to improve the rest
craft) must never be used, even if the area, or when the roadway adjacent to
passenger consents, unless this is the or in the near vicinity of the rest area
333
is constructed, reconstructed or other- the responsible Departmental official

wise altered with Federal financial as- or his/her designee during normal busi-
sistance. ness hours to books, records, accounts,
and other sources of information, and
[44 FR 31468, May 31, 1979, as amended by
Amdt. 27–3, 51 FR 19017, May 23, 1986. Redes-
to facilities that are pertinent to com-
ignated at 56 FR 45621, Sept. 6, 1991, as pliance with this part. Where required
amended at 79 FR 21405, Apr. 16, 2014] information is in the exclusive posses-
sion of another agency or person who
§ 27.77 Recipients of Essential Air fails or refuses to furnish the informa-
Service subsidies. tion, the recipient shall so certify in
Any air carrier receiving Federal fi- its report and describe the efforts made
nancial assistance from the Depart- to obtain the information. Consider-
ment of Transportation under the Es- ations of privacy or confidentiality do
sential Air Service Program shall, as a not bar the Department from evalu-
condition of receiving such assistance, ating or seeking to enforce compliance
comply with applicable requirements with this part. Information of a con-
of this part and applicable section 504 fidential nature obtained in connection
and ACAA rules of the Department of with compliance evaluation or enforce-
Transportation. ment is not disclosed by the Depart-
ment, except in formal enforcement
[61 FR 56425, Nov. 1, 1996, as amended at 68 proceedings, where necessary, or where
FR 51391, Aug. 26, 2003] otherwise required by law.
(d) Information to beneficiaries and
Subpart C—Enforcement participants. Each recipient shall make
available to participants, beneficiaries,
SOURCE: 44 FR 31468, May 31, 1979, unless and other interested persons such in-
otherwise noted. Redesignated at 56 FR 45621, formation regarding the provisions of
Sept. 6, 1991. this regulation and its application to
the program or activity for which the
§ 27.121 Compliance information. recipient receives Federal financial as-
(a) Cooperation and assistance. The resistance, and make such information
sponsible Departmental official, to the available to them in such manner, as
fullest extent practicable, seeks the co- the responsible Departmental official
operation of recipients in securing finds necessary to apprise them of the
compliance with this part and provides protections against discrimination pro-
assistance and guidance to recipients vided by the Act and this part.
to help them comply with this part. [44 FR 31468, May 31, 1979. Redesignated at 56
(b) Compliance reports. Each recipient FR 45621, Sept. 6, 1991. 68 FR 51391, Aug. 26,
shall keep on file for one year all com- 2003]
plaints of noncompliance received. A
record of all such complaints, which § 27.123 Conduct of investigations.
may be in summary form, shall be kept (a) Periodic compliance reviews. The re-
for five years. Each recipient shall sponsible Departmental official or his/
keep such other records and submit to her designee, from time to time, re-
the responsible Departmental official views the practices of recipients to de-
or his/her designee timely, complete, termine whether they are complying
and accurate compliance reports at with this part.
such times, and in such form, and con- (b) Complaints. Any person who be-
taining such information as the respon- lieves himself/herself or any specific
sible Department official may pre- class of individuals to be harmed by
scribe. In the case in which a primary failure to comply with this part may,
recipient extends Federal financial as- personally or through a representative,
sistance to any other recipient, the file a written complaint with the re-
other recipient shall also submit com- sponsible Departmental official. A
pliance reports to the primary recipi- Complaint must be filed not later than
ent so as to enable the primary recipi- 180 days from the date of the alleged
ent to prepare its report. discrimination, unless the time for fil-
(c) Access to sources of information. ing is extended by the responsible De-

Each recipient shall permit access by partmental official or his/her designee.
334
(c) Investigations. The responsible De- partmental official may recommend

partmental official or his/her designee suspension or termination of, or refusal
makes a prompt investigation when- to grant or to continue Federal finan-
ever a compliance review, report, com- cial assistance, or take any other steps
plaint, or any other information indi- authorized by law. Such other steps
cates a possible failure to comply with may include, but are not limited to:
this part. The investigation includes, (1) A referral to the Department of
where appropriate, a review of the per- Justice with a recommendation that
tinent practices and policies of the re- appropriate proceedings be brought to
cipient, and the circumstances under enforce any rights of the United States
which the possible noncompliance with
under any law of the United States (in-
this part occurred.
cluding other titles of the Act), or any
(d) Resolution of matters. (1) If, after
an investigation pursuant to paragraph assurance or other contractural under-
(c) of this section, the responsible De- taking; and
partmental official finds reasonable (2) Any applicable proceeding under
cause to believe that there is a failure State or local law.
to comply with this part, the respon- (b) Refusal of Federal financial assist-
sible Departmental official will inform ance. (1) No order suspending, termi-
the recipient. The matter is resolved nating, or refusing to grant or continue
by informal means whenever possible. Federal financial assistance becomes
If the responsible Departmental official effective until:
determines that the matter cannot be (i) The responsible Departmental of-
resolved by informal means, action is ficial has advised the applicant or re-
taken as provided in § 27.125. cipient of its failure to comply and has
(2) If an investigation does not war- determined that compliance cannot be
rant action pursuant to paragraph secured by voluntary means; and
(d)(1) of this section, the responsible (ii) There has been an express finding
Departmental official or his/her des-
by the Secretary on the record, after
ignee so informs the recipient and the
opportunity for hearing, of a failure by
complainant, if any, in writing.
(e) Intimidating and retaliatory acts the applicant or recipient to comply
prohibited. No employee or contractor with a requirement imposed by or pur-
of a recipient shall intimidate, threat- suant to this part.
en, coerce, or discriminate against any (2) Any action to suspend, terminate,
individual for the purpose of inter- or refuse to grant or to continue Fed-
fering with any right or privilege se- eral financial assistance is limited to
cured by section 504 of the Act or this the particular recipient who has failed
part, or because the individual has to comply, and is limited in its effect
made a complaint, testified, assisted, to the particular program or activity,
or participated in any manner in an in- or part thereof, in which noncompli-
vestigation, hearing, or proceeding, ance has been found.
under this part. The identity of com- (c) Other means authorized by law. No
plainants is kept confidential at their other action is taken until:
election during the conduct of any in- (1) The responsible Departmental of-
vestigation, hearing or proceeding ficial has determined that compliance
under this part. However, when such cannot be secured by voluntary means;
confidentiality is likely to hinder the
(2) The recipient or other person has
investigation, the complainant will be
been notified by the responsible De-
advised for the purpose of waiving the
partmental official of its failure to
privilege.
comply and of the proposed action;
§ 27.125 Compliance procedure. (3) The expiration of at least 10 days
(a) General. If there is reasonable from the mailing of such notice to the
cause for the responsible Departmental recipient or other person. During this
official to believe that there is a fail- period, additional efforts are made to
ure to comply with any provision of persuade the recipient or other person
this part that cannot be corrected by to comply with the regulations and to
informal means, the responsible De-
335
take such corrective action as may be cipient or of the Department requires

appropriate. that another place be selected. Hear-
[44 FR 31468, May 31, 1979. Redesignated at 56
ings are held before an Administrative
FR 45621, Sept. 6, 1991. 68 FR 51391, Aug. 26, Law Judge designated in accordance
2003] with 5 U.S.C. 3105 and 3344 (section 11 of
the Administrative Procedure Act).
§ 27.127 Hearings. (d) Right to counsel. In all proceedings
(a) Opportunity for hearing. Whenever under this section, the applicant or re-
an opportunity for a hearing is recipient and the responsible Depart-
quired by § 27.125(b), reasonable notice mental official have the right to be
is given by the responsible Depart- represented by counsel.
mental official by registered or cer- (e) Procedures, evidence and record. (1)
tified mail, return receipt requested, to The hearing, decision, and any admin-
the affected applicant or recipient. istrative review thereof are conducted
This notice advises the applicant or rein conformity with sections 554
cipient of the action proposed to be through 557 of title 5 of the United
taken, the specific provision under States Code, and in accordance with
which the proposed action is to be such rules of procedure as are proper
taken, and the matters of fact or law (and not inconsistent with this section)
asserted as the basis for this action, relating to the conduct of the hearing,
and either: giving notice subsequent to those pro-
(1) Fixes a date not less than 20 days vided for in paragraph (a) of this sec-
after the date of such notice within tion, taking testimony, exhibits, argu-
which the applicant or recipient may ments and briefs, requests for findings,
request a hearing; or and other related matters. The respon-
(2) Advises the applicant or recipient sible Departmental official and the ap-
that the matter in question has been plicant or recipient are entitled to in-
set for hearing at a stated place and troduce all relevant evidence on the
time. issues as stated in the notice for hear-
The time and place shall be reasonable ing or as determined by the officer con-
and subject to change for cause. The ducting the hearing. Any person (other
complainant, if any, also is advised of than a government employee consid-
the time and place of the hearing. An ered to be on official business) who,
applicant or recipient may waive a having been invited or requested to ap-
hearing and submit written informa- pear and testify as a witness on the
tion and argument for the record. The government’s behalf, attends at a time
failure of an applicant or recipient to and place scheduled for a hearing pro-
request a hearing constitutes a waiver vided for by this part may be reim-
of the right to a hearing under section bursed for his/her travel and actual ex-
504 of the Act and § 27.125(b), and con- penses in an amount not to exceed the
sent to the making of a decision on the amount payable under the standardized
basis of such information as may be travel regulations applicable to a gov-
part of the record. ernment employee traveling on official
(b) If the applicant or recipient business.
waives its opportunity for a hearing, (2) Technical rules of evidence do not
the responsible Departmental official apply to hearings conducted pursuant
shall notify the applicant or recipient to this part, but rules or principles de-
that it has the opportunity to submit signed to assure production of the most
written information and argument for credible evidence available and to sub-
the record. The responsible Depart- ject testimony to cross examination
mental official may also place written are applied where reasonably necessary
information and argument into the by the Administrative Law Judge con-
record. ducting the hearing. The Administra-
(c) Time and place of hearing. Hearings tive Law Judge may exclude irrelevant,
are held at the office of the Depart- immaterial, or unduly repetitious evi-
ment in Washington, DC, at a time dence. All documents and other evi-
fixed by the responsible Departmental dence offered or taken for the record
official unless he/she determines that are open to examination by the parties
the convenience of the applicant or re- and opportunity is given to refute facts
336
and arguments advanced by either side. (d) Rulings required. Each decision of
A transcript is made of the oral evi- the Administrative Law Judge or the
dence except to the extent the sub- Secretary contains a ruling on each
stance thereof is stipulated for the finding or conclusion presented and
record. All decisions are based on the specifies any failures to comply with
hearing record and written findings this part.
shall be made. (e) Content of orders. The final deci-
(f) Consolidation or joint hearings. In sion may provide for suspension or ter-
cases in which the same or related mination, or refusal to grant or con-
facts are asserted to constitute non- tinue Federal financial assistance, in
compliance with this regulation with whole or in part, to which this first
respect to two or more Federal stat- regulation applies. The decision may
utes, authorities, or other means by contain such terms, conditions, and
which Federal financial assistance is other provisions as are consistent with
extended and to which this part ap- and will effectuate the purposes of the
plies, or noncompliance with this part Act and this part, including provisions
and the regulations of one or more designed to assure that no Federal fi-
other Federal departments or agencies nancial assistance to which this regu-
issued under section 504 of the Act, the lation applies will thereafter be ex-
responsible Departmental official may, tended unless and until the recipient
in agreement with such other depart- corrects its noncompliance and satis-
ments or agencies, where applicable, fies the Secretary that it will fully
provide for consolidated or joint hear- comply with this part.
ings. Final decisions in such cases, in- (f) Subsequent proceedings. (1) An ap-
sofar as this regulation is concerned, plicant or recipient adversely affected
are made in accordance with § 27.129. by an order issued under paragraph (e)
[44 FR 31468, May 31, 1979. Redesignated at 56 of this section is restored to full eligi-
FR 45621, Sept. 6, 1991. 68 FR 51391, Aug. 26, bility to receive Federal financial as-
2003] sistance if it satisfies the terms and
conditions of that order or if it brings
§ 27.129 Decisions and notices. itself into compliance with this part
(a) Decisions by Administrative Law and provides reasonable assurance that
Judge. After the hearing, the Adminis- it will fully comply with this part.
trative Law Judge certifies the entire (2) Any applicant or recipient ad-
record including his recommended find- versely affected by an order entered
ings and proposed decision to the Sec- pursuant to paragraph (e) of this sec-
retary for a final decision. A copy of tion may, at any time, request the re-
the certification is mailed to the appli- sponsible Departmental official to re-
cant or recipient and to the complain- store its eligibility, to receive Federal
ant, if any. The responsible Depart- financial assistance. Any request must
mental official and the applicant or re- be supported by information showing
cipient may submit written arguments that the applicant or recipient has met
to the Secretary concerning the Ad- the requirements of paragraph (f)(1) of
ministrative Law Judge’s rec- this section. If the responsible Depart-
ommended findings and proposed deci- mental official determines that those
sion. requirements have been satisfied, he/
(b) Final decision by the Secretary. she may restore such eligibility, sub-
When the record is certified to the Sec- ject to the approval of the Secretary.
retary by the Administrative Law (3) If the responsible Departmental
Judge, the Secretary reviews the official denies any such request, the ap-
record and accepts, rejects, or modifies plicant or recipient may submit a re-
the Administrative Law Judge’s rec- quest, in writing, for a hearing speci-
ommended findings and proposed deci- fying why it believes the responsible
sion, stating the reasons therefor. Departmental official should restore it
(c) Decisions if hearing is waived. to full eligibility. It is thereupon given
Whenever a hearing pursuant to a prompt hearing, with a decision on
§ 27.125(b) is waived, the Secretary the record. The applicant or recipient
makes his/her final decision on the is restored to eligibility if it dem-

record, stating the reasons therefor. onstrates to the satisfaction of the
337
Secretary at the hearing that it satis- discrimination on the basis of handicap

fied the requirements of paragraph in programs or activities conducted by
(f)(1) of this section. Executive agencies, including this De-
(4) The hearing procedures of partment, or the United States Postal
§ 27.127(b) through (c) and paragraphs Service. 49 CFR part 27 implements
(a) through (d) of this section apply to section 504 in the Department’s finan-
hearings held under paragraph (f)(3) of cial assistance programs.
this section.
(5) While proceedings under this para- § 28.102 Application.
graph are pending, the sanctions im- This part applies to all programs or
posed by the order issued under para- activities conducted by the Depart-
graph (e) of this section shall remain in ment except for programs and activi-
effect. ties conducted outside the United
[44 FR 31468, May 31, 1979. Redesignated at 56 States that do not involve individuals
FR 45621, Sept. 6, 1991. 68 FR 51391, Aug. 26, with handicaps in the United States.
2003]
PART 28—ENFORCEMENT OF NON- For purposes of this part, the term—
DISCRIMINATION ON THE BASIS Assistant Attorney General means the
OF HANDICAP IN PROGRAMS Assistant Attorney General, Civil
OR ACTIVITIES CONDUCTED BY Rights Division, United States Depart-
THE DEPARTMENT OF TRANSPOR- ment of Justice.
TATION Auxiliary aids means services or de-
vices that enable persons with im-
Sec. paired sensory, manual, or speaking
28.101 Purpose. skills to have an equal opportunity to
28.102 Application. participate in, and enjoy the benefits
28.103 Definitions. of, programs or activities conducted by
28.104–28.109 [Reserved] the Department. For example, auxil-
28.110 Self-evaluation. iary aids useful for persons with im-
28.111 Notice.
28.112–28.129 [Reserved]
paired vision include readers, Brailled
28.130 General prohibition against discrimi- materials, audio recordings, and other
nation. similar services and devices. Auxiliary
28.131 Illegal use of drugs. aids useful for persons with impaired
28.132–28.139 [Reserved] hearing include telephone handset am-
28.140 Employment. plifiers, telephones compatible with
28.141–28.148 [Reserved] hearing aids, telecommunication de-
28.149 Program accessibility: Discrimina- vices for deaf persons (TDD’s), inter-
tion prohibited.
28.150 Program accessibility: Existing fa-
preters, notetakers, written materials,
cilities. and other similar services and devices.
28.151 Program accessibility: New construc- Complete complaint means a written
tion and alterations. statement that contains the complain-
28.152–28.159 [Reserved] ant’s name and address and describes
28.160 Communications. the Department’s alleged discrimina-
28.161–28.169 [Reserved] tory actions in sufficient detail to in-
28.170 Compliance procedures.
28.171–28.999 [Reserved]
form the Department of the nature and
date of the alleged violation of section
AUTHORITY: 29 U.S.C. 794 504. It shall be signed by the complain-
SOURCE: 56 FR 37296, Aug. 6, 1991, unless ant or by someone authorized to do so
otherwise noted. on his or her behalf. Complaints filed
on behalf of classes or third parties
§ 28.101 Purpose. shall describe or identify (by name, if
The purpose of this part is to carry possible) the alleged victims of dis-
out section 119 of the Rehabilitation, crimination.
Comprehensive Services, and Develop- Current illegal use of drugs means ille-
mental Disabilities Amendments of gal use of drugs that occurred recently
1978, which amended section 504 of the enough to justify a reasonable belief
Rehabilitation Act of 1973 to prohibit that a person’s drug use is current or
338
that continuing use is a real and ongo- or more of the following body systems:
ing problem. Neurological; muscular; skeletal; spe-
Drug means a controlled substance, cial sense organs; respiratory, includ-
as defined in schedules I through V of ing speech organs; cardiovascular; re-
section 202 of the Controlled Sub- productive; digestive; genitourinary;
stances Act (21 U.S.C. 812). hemic and lymphatic; skin; and endo-
Department or DOT means the U.S. crine;
Department of Transportation, includ- (ii) Includes any mental or psycho-
ing the Office of the Secretary and all logical disorder, such as mental retar-
operating administrations. dation, organic brain syndrome, emo-
Departmental Element (or ‘‘DOT ele- tional or mental illness, and specific
ment’’) means any one of the following learning disabilities; and
organizations within the Department: (iii) Includes, but is not limited to,
(a) Office of the Secretary (OST). such diseases or conditions as ortho-
(b) United States Coast Guard pedic, visual, speech, and hearing im-
(USCG). pairments, cerebral palsy, epilepsy,
(c) Federal Aviation Administration muscular dystrophy, multiple sclerosis,
(FAA). cancer, heart disease, diabetes, mental
(d) Federal Highway Administration retardation, emotional illness, drug ad-
(FHWA). diction, and alcoholism.
(e) Federal Railroad Administration (2) Major life activities includes func-
(FRA). tions such as caring for one’s self, per-
(f) National Highway Traffic Safety forming manual tasks, walking, seeing,
Administration (NHTSA). hearing, speaking, breathing, learning,
(g) Federal Transit Administration and working.
(FTA). (3) Has a record of such an impairment
(h) Research and Special Programs means has a history of, or has been
Administration (RSPA). misclassified as having, a mental or
(i) Maritime Administration physical impairment that substantially
(MARAD). limits one or more major life activi-
(j) St. Lawrence Seaway Develop- ties.
ment Corporation (SLSDC). (4) Is regarded as having an impairment
Facility means all or any portion of means—
buildings, structures, equipment, (i) Has a physical or mental impair-
roads, walks, parking lots, rolling ment that does not substantially limit
stock or other conveyances, or other major life activities but is treated by
real or personal property. the Department as constituting such a
Illegal use of drugs means the use of limitation;
one or more drugs, the possession or (ii) Has a physical or mental impair-
distribution of which is unlawful under ment that substantially limits major
the Controlled Substances Act (21 life activities only as a result of the at-
U.S.C. 812) The term ‘‘illegal use of titudes of others toward such impair-
drugs’’ does not include the use of a ment; or
drug taken under supervision by a li- (iii) Has none of the impairments de-
censed health care professional, or fined in paragraph (1) of this definition
other uses authorized by the Controlled but is treated by the Department as
Substances Act or other provisions of having such an impairment.
Federal law. Qualified individual with handicaps
Individual with handicaps means any means—
person who has a physical or mental (1) With respect to education services
impairment that substantially limits provided by the U.S. Merchant Marine
one or more major life activities, has a Academy or the U.S. Coast Guard
record of such an impairment, or is re- Academy, an individual with handicaps
garded as having such an impairment. who meets the essential eligibility re-
As used in this definition, the phrase: quirements for participation in and re-
(1) Physical or mental impairment— ceipt of such services, including the
(i) Includes any physiological dis- physical standards applicable to the
order or condition, cosmetic disfigure- U.S. Naval Reserve or the U.S. Coast
ment, or anatomical loss affecting one Guard.
339
§§ 28.104–28.109 49 CFR Subtitle A (10–1–19 Edition)
(2) With respect to any other Depart- ceed to make the necessary modifica-
ment program or activity under which tions.
a person is required to perform services (b) The Department shall provide an
or to achieve a level of accomplish- opportunity to interested persons, in-
ment, an individual with handicaps cluding individuals with handicaps,
who meets the essential eligibility re- agency employees with handicaps, and
quirements and who can achieve the organizations representing individuals
purpose of the program or activity with handicaps, to participate in the
without modifications in the program self-evaluation process by submitting
or activity that the Department can comments (both oral and written).
demonstrate would result in a funda- (c) The Department shall, until at
mental alteration in its nature. The es- least three years following completion
sential eligibility requirements include of the evaluation required under para-
the ability to participate without en- graph (a) of this section, or until such
dangering the safety of the individual time as all modifications identified by
or others. the self-evaluation to be necessary to
(3) With respect to any other pro- comply with section 504 have been com-
gram or activity, an individual with pleted, whichever occurs later, main-
handicaps who meets the essential eli- tain on file and make available for pub-
gibility requirements for participation
lic inspection—
in, or receipt of benefits from, that pro-
(1) A description of areas examined,
gram or activity and
(4) Qualified handicapped person as regulations and nonregulatory criteria
that term is defined for purposes of em- reviewed, and any problems identified;
ployment in 29 CFR 1613.702(f), which is and
made applicable to this part by § 28.140. (2) A description of any modifications
Section 504 means section 504 of the made.
Rehabilitation Act of 1973 (Pub. L. 93–
112, 87 Stat. 394 (29 U.S.C. 794)), as § 28.111 Notice.
amended by the Rehabilitation Act The Department shall make avail-
Amendments of 1974 (Pub. L. 93–516, 88 able to employees, applicants, partici-
Stat. 1617), the Rehabilitation, Com- pants, beneficiaries, and other inter-
prehensive Services, and Develop- ested persons such information regard-
mental Disabilities Amendments of ing the provisions of this part and its
1978 (Pub. L. 95–602, 92 Stat. 2955); the applicability to the programs or activi-
Rehabilitation Act Amendments of 1986 ties conducted by the Department, and
(Pub. L. 99–506, 100 Stat. 1810); the Civil make such information available to
Rights Restoration Act of 1987 (Pub. L. them in such manner as the Depart-
100–259, 102 Stat. 28), and Handicapped ment finds necessary to apprise such
Program Technical Amendments Act of persons of the protections against dis-
1988 (Pub. L. 100–630, 102 Stat. 3312). As crimination assured them by section
used in this part, section 504 applies 504 and this regulation.
only to programs or activities con-
ducted by Executive agencies and not §§ 28.112–28.129 [Reserved]
to federally assisted programs.
§ 28.130 General prohibition against
[56 FR 37296, Aug. 6, 1991, as amended at 61 discrimination.
FR 32354, June 24, 1996]
(a) No qualified individual with
§§ 28.104–28.109 [Reserved] handicaps shall, on the basis of handi-
cap, be excluded from participation in,
§ 28.110 Self-evaluation. be denied the benefits of, or otherwise
(a) The Department shall, by one be subjected to discrimination under
year of the effective date of this part, any program or activity conducted by
evaluate its current policies and prac- the Department.
tices, and effects thereof, that do not (b)(1) The Department, in providing
or may not meet the requirements of any aid, benefit, or service, may not,
this part, and, to the extent modifica- directly or through contractual, licens-
tion of any such policies and practices ing, or other arrangement, on the basis
is required, the Department shall proof handicap—
340
(i) Deny a qualified individual with or otherwise subject them to discrimi-

handicaps the opportunity to partici- nation under any program or activity
pate in or benefit from the aid, benefit, conducted by the Department; or
or service; (ii) Defeat or substantially impair
(ii) Afford a qualified individual with the accomplishment of the objectives
handicaps an opportunity to partici- of a program or activity with respect
pate in or benefit from the aid, benefit, to individuals with handicaps.
or service that is not equal to that af- (5) The Department, in the selection
forded others; of procurement contractors, may not
(iii) Provide a qualified individual use criteria that subject qualified indi-
with handicaps with an aid, benefit, or viduals with handicaps to discrimina-
service that is not as effective in af- tion on the basis of handicap.
fording equal opportunity to obtain the (6) The Department may not admin-
same result, to gain the same benefit, ister a licensing or certification pro-
or to reach the same level of achieve- gram in a manner that subjects quali-
ment as that provided to others; fied individuals with handicaps to dis-
(iv) Provide different or separate aid, crimination on the basis of handicap,
benefits, or services to individuals with nor may the Department establish re-
handicaps or to any class of individuals quirements for the programs or activi-
with handicaps than is provided to oth- ties of licensees or certified entities
ers unless such action is necessary to that subject qualified individuals with
provide qualified individuals with handicaps to discrimination on the
handicaps with aid, benefits, or serv- basis of handicap. However, the pro-
ices that are as effective as those programs or activities of entities that are
vided to others; licensed or certified by the Department
(v) Deny a qualified individual with are not, themselves, covered by this
handicaps the opportunity to partici- part. The Department may limit the
pate as a member of planning or advi- programs or activities of a licensee or
sory boards; or certificate holder, who is a qualified in-
(vi) Otherwise limit a qualified indi- dividual with handicaps, to the extent
vidual with handicaps in the enjoy- necessary to ensure the safety of that
ment of any right, privilege, advan- person or the safety of others.
tage, or opportunity enjoyed by others (c) The exclusion of individuals with-
receiving the aid, benefit, or service. out handicaps from the benefits of a
(2) The Department may not deny a program limited by Federal statute or
qualified individual with handicaps the Executive Order to individuals with
opportunity to participate in programs handicaps or the exclusion of a specific
or activities that are not separate or class of individuals with handicaps
different, despite the existence of per- from a program limited by Federal
missibly separate or different programs statute or Executive Order to a dif-
or activities. ferent class of individuals with handi-
(3) The Department may not, directly caps is not prohibited by this part.
or through contractual or other ar- (d) The Department shall administer
rangements, utilize criteria or methods programs and activities in the most in-
of administration the purpose or effect tegrated setting appropriate to the
of which would— needs of qualified individuals with
(i) Subject qualified individuals with handicaps.
handicaps to discrimination on the
basis of handicap; or § 28.131 Illegal use of drugs.
(ii) Defeat or substantially impair ac- (a) General. (1) Except as provided in
complishment of the objectives of a paragraph (b) of this section, this part
program or activity with respect to in- does not prohibit discrimination
dividuals with handicaps. against an individual based on that in-
(4) The Department may not, in de- dividual’s current illegal use of drugs.
termining the site or location of a fa- (2) The agency shall not discriminate
cility, make selections the purpose or on the basis of illegal use of drugs
effect of which would— against an individual who is not engag-
(i) Exclude individuals with handi- ing in current illegal use of drugs and
caps from, deny them the benefits of, who—
341
(i) Has successfully completed a su- wise be subjected to discrimination

pervised drug rehabilitation program under any program or activity con-
or has otherwise been rehabilitated ducted by the Department.
successfully;
(ii) Is participating in a supervised § 28.150 Program accessibility: Exist-
rehabilitation program; or ing facilities.
(iii) Is erroneously regarded as engag- (a) General. The Department shall op-
ing in such use. erate each program or activity so that
(b) Health and rehabilitation services. the program or activity, when viewed
The agency shall not deny health serv- in its entirety, is readily accessible to
ices or services provided under titles I, and usable by individuals with handi-
II, and III of the Rehabilitation Act to caps. This paragraph does not—
an individual on the basis of that indi- (1) Necessarily require the Depart-
vidual’s current illegal use of drugs, if ment to make each of its existing fa-
the individual is otherwise entitled to cilities accessible to and usable by in-
such services. dividuals with handicaps;
(c) Drug testing. (1) This part does not (2) [Reserved]
prohibit the agency from adopting or (3) Require the Department to take
administering reasonable policies or any action that it can demonstrate
procedures, including but not limited would result in a fundamental alter-
to drug testing, designed to ensure that ation in the nature of a program or ac-
an individual who formerly engaged in tivity or in undue financial and admin-
the illegal use of drugs is not engaging istrative burdens. In those cir-
in current illegal use of drugs. cumstances where personnel of a DOT
(2) Nothing in paragraph (c) of this element believe that the proposed ac-
section shall be construed to encour- tion would fundamentally alter the
age, prohibit, restrict, or authorize the program or activity or would result in
conduct of testing for the illegal use of undue financial and administrative
drugs. burdens, the DOT element has the bur-
§§ 28.132–28.139 [Reserved] den of proving that compliance with
§ 28.150(a) would result in such alter-
§ 28.140 Employment. ation or burdens. The decision that
compliance would result in such alter-
(a) No qualified individual with
ation or burdens must be made by the
handicaps shall, on the basis of handi-
cap, be subjected to discrimination in Secretary or his or her designee, after
employment under any program or ac- considering all resources available for
tivity conducted by the Department. use in the funding and operation of the
(b) The definitions, requirements, program or activity, and must be ac-
and procedures of section 501 of the Re- companied by a written statement of
habilitation Act of 1973 (29 U.S.C. 791), the reasons for reaching that conclu-
as established by the Equal Employ- sion. If an action would result in such
ment Opportunity Commission in 29 an alteration or such burdens, the De-
CFR part 1613, shall apply to employ- partment shall take any other action
ment in federally conducted programs that would not result in such an alter-
or activities. The provisions of this sec- ation or such burdens but would never-
tion do not apply to military personnel theless ensure that individuals with
of the U.S. Coast Guard. handicaps receive the benefits and
services of the program or activity.
§§ 28.141–28.148 [Reserved] (b) Methods. The Department may
comply with the requirements of this
§ 28.149 Program accessibility: Dis- section through such means as redesign
crimination prohibited. of equipment, reassignment of services
Except as otherwise provided in to accessible buildings, assignment of
§ 28.150, no qualified individual with aides to beneficiaries, home visits, de-
handicaps shall, because the Depart- livery of services at alternate acces-
ment’s facilities are inaccessible to or sible sites, alteration of existing facili-
unusable by individuals with handi- ties and construction of new facilities,
caps, be denied the benefits of, be ex- use of accessible rolling stock, or any
cluded from participation in, or other- other methods that result in making
342
its programs or activities readily ac- shall be made available for public in-
cessible to and usable by individuals spection. The plan shall, at a min-
with handicaps. The Department is not imum—
required to make structural changes in (1) Identify physical obstacles in the
existing facilities where other methods Department’s facilities that limit the
are effective in achieving compliance accessibility of its programs or activi-
with this section. The Department, in ties to individuals with handicaps;
making alterations to existing build- (2) Describe in detail the methods
ings, shall meet accessibility require- that will be used to make the facilities
ments to the extent compelled by the accessible;
Architectural Barriers Act of 1968, as (3) Specify the schedule for taking
amended (42 U.S.C. 4151–4157), and any the steps necessary to achieve compli-
regulations implementing it. In choos- ance with this section and, if the time
ing among available methods for meet- period of the transition plan is longer
ing the requirements of this section, than one year, identify steps that will
the Department shall give priority to be taken during each year of the tran-
those methods that offer programs and sition period; and
activities to qualified individuals with (4) Indicate the official responsible
handicaps in the most integrated set- for implementation of the plan.
ting appropriate.
(c) Time period for compliance. The De- § 28.151 Program accessibility: New
partment shall comply with the obliga- construction and alterations.
tions established under this section
within sixty days of the effective date Each building or part of a building
of this part except that where struc- that is constructed or altered by, on
tural changes in facilities are under- behalf of, or for the use of the Depart-
taken, such changes shall be made ment shall be designed, constructed, or
within three years of the effective date altered so as to be readily accessible to
of this part, but in any event as expedi- and usable by individuals with handi-
tiously as possible. Provided that, caps. The definitions, requirements and
where major restructuring of fixed fa- standards of the Architectural Barriers
cilities to accommodate technological Act (42 U.S.C. 4151–4157), as established
changes is planned to occur within five in 41 CFR 101–19.600–607, apply to build-
years from the effective date of this ings covered by this section, except for
part, changes needed to comply with military facilities of the Coast Guard,
this section are not required to be which are covered by 32 CFR part 56.
made until the planned restructuring §§ 28.152–28.159 [Reserved]
takes place. However, alternative
means for participation by individuals § 28.160 Communications.
with handicaps in DOT programs and
activities in the most integrated set- (a) The Department shall take appro-
ting possible during this interim wait- priate steps to ensure effective commu-
ing period shall be available. nication with applicants, participants,
(d) Transition plan. In the event that personnel of other Federal entities, and
structural changes to facilities will be members of the public.
undertaken to achieve program acces- (1) The Department shall furnish ap-
sibility, the Department shall develop, propriate auxiliary aids where nec-
within six months of the effective date essary to afford an individual with
of this part, a transition plan setting handicaps an equal opportunity to par-
forth the steps necessary to complete ticipate in, and enjoy the benefits of, a
such changes. The agency shall provide program or activity conducted by the
an opportunity to interested persons, Department.
including individuals with handicaps, (i) In determining what type of auxil-
agency employees with handicaps, or iary aid is necessary, the Department
organizations representing individuals shall give primary consideration to the
with handicaps, to participate in the requests of the individual with handi-
development of the transition plan by caps.
submitting comments (both oral and (ii) The Department need not provide
written). A copy of the transition plan individually prescribed devices, readers
343
for personal use or study, or other de- §§ 28.161–28.169 [Reserved]

vices of a personal nature to applicants
or participants in programs. § 28.170 Compliance procedures.
(2) Where the Department commu- (a) Except as provided in paragraph
nicates with applicants and bene- (b) of this section, paragraphs (c)–(k) of
ficiaries by telephone, telecommuni- this section apply to all allegations of
cations devices for deaf persons (TDDs) discrimination on the basis of handicap
or equally effective telecommunication in programs of activities conducted by
systems, shall be used to communicate the Department;
with persons with impaired hearing.
(b)(1) The Department shall process
(b) The Department shall ensure that complaints alleging violations of sec-
interested persons, including persons
tion 504 with respect to employment
with impaired vision or hearing, can
according to the procedures established
obtain information as to the existence
by the Equal Employment Opportunity
and location of accessible services, ac-
tivities, and facilities. Commission in 29 CFR part 1613 pursu-
ant to section 501 of the Rehabilitation
(c) The Department shall provide
Act of 1973 (29 U.S.C. 791).
signs at each primary entrance to each
of its inaccessible facilities, directing (2) The Department shall process
users to a location at which they can complaints alleging violations of sec-
obtain information as to the location tion 504 with respect to requirements
of accessible facilities. The inter- of any Department safety regulation,
national symbol for accessibility shall concerning an individual’s qualifica-
be used at each primary entrance of an tions to perform a function or to re-
accessible facility. ceive a certificate or license, according
(d) This section does not require the to the procedures for a petition for an
Department to take any action that it individual waiver or request for review
can demonstrate would result in a fun- of a standard for possible amendment
damental alteration in the nature of a or recession. The Departmental ele-
program or activity or in undue finan- ment shall inform the complainant, in
cial and administrative burdens. In writing, or the decision on the request.
those circumstances where personnel of The complainant may request reconsid-
a DOT element believe that the pro- eration by the Departmental element
posed action would fundamentally of the decision. The decision on the pe-
alter the program or activity or would tition or request shall constitute the
result in an undue financial and admin- Department’s final action in the mat-
istrative burden, the DOT element has ter.
the burden of proving that compliance (c) Responsibility for implementa-
with § 28.160 would result in such alter- tion and operation of this section shall
ation or burden. The decision that be vested in the Director, Depart-
compliance would result in such alter- mental Office of Civil Rights.
ation or burden must be made by the (d)(1) The Department shall accept
Secretary or his or her designee, after and investigate all complete com-
considering all resources available for
plaints for which it has jurisdiction.
use in the funding and operation of the
All complete complaints must be filed
program or activity, and must be ac-
within 180 days of the alleged act of
companied by a written statement of
discrimination. The Department may
the reasons for reaching that conclu-
sion. If an action required to comply extend this time period for good cause.
with this section would result in such (2) If the subject matter of a com-
an alteration or such burdens, the De- plete complaint concerns a decision by
partment shall take any other action a Departmental element, under a safe-
that would not result in such an alter- ty regulation, concerning an individ-
ation or such a burden but would nev- ual’s qualifications to perform a func-
ertheless ensure that, to the maximum tion or to receive a certificate or li-
extent possible, individuals with handi- cense, and the complainant has avail-
caps receive the benefits and services able within the Departmental element
of the program or activity. a formal review or appeal mechanism
344
concerning that decision, the Depart- (l) The Department may delegate its
ment shall not take action on the com- authority for conducting complaint in-
plaint until the Departmental ele- vestigations to other Federal agencies,
ment’s review or appeal process has except that the authority for making
been completed. the final determination may not be
(e) If the Department receives a com- delegated to another agency.
plaint over which it does not have ju- [56 FR 37296, Aug. 6, 1991, as amended at 59
risdiction, it shall promptly notify the FR 10061, Mar. 3, 1994]
complainant and shall make reason-
able efforts to refer the complaint to §§ 28.171–28.999 [Reserved]
the appropriate Government entity.
(f) The Department shall notify the PART 30—DENIAL OF PUBLIC
Architectural and Transportation Bar- WORKS CONTRACTS TO SUP-
riers Compliance Board upon receipt of PLIERS OF GOODS AND SERV-
any complaint alleging that a building ICES OF COUNTRIES THAT DENY
or facility that is subject to the Archi-
tectural Barriers Act of 1968, as amend-
PROCUREMENT MARKET ACCESS
ed (42 U.S.C. 4151–4157), is not readily TO U.S. CONTRACTORS
accessible to and usable by individuals
with handicaps. Sec.
30.1 Purpose.
(g) Within 180 days of the receipt of a 30.3 Applicability.
complete complaint for which it has ju- 30.5 Effective dates.
risdiction, the Department shall notify 30.7 Definitions.
the complainant of the results of the 30.9 Citizenship: Direct or indirect control.
investigation in a letter containing— 30.11 Use of solicitation provisions and con-
(1) Findings of fact and conclusions tract clauses.
of law; 30.13 Restrictions on Federal public works
projects: Certification.
(2) A description of a remedy for each 30.15 Restrictions on Federal public works
violation found; and projects.
(3) A notice of the right to appeal. 30.17 Waivers.
(h) Appeals of the findings of fact and 30.19 Buy American Act.
conclusions of law or remedies must be AUTHORITY: 49 U.S.C. 322(a); Containing
filed by the complainant within 90 days Resolution on the Fiscal Year 1988 Budget
of receipt from the Department of the 109(a), Pub. L. 100–202; Airport and Airways
letter required by § 28.170(g). The De- Safety and Capacity Expansion Act of 1987,
partment may extend this time for 115, Pub. L. 100–223.
good cause. SOURCE: 53 FR 19916, June 1, 1988, unless
(i) Timely appeals shall be accepted otherwise noted.
and processed by the Assistant Sec-
retary for Transportation Policy. The § 30.1 Purpose.
appeal will not be heard by the same The rules in this part implement sec-
person who made the initial determination 109(a) of the Continuing Resolu-
tion on the request. The decision on tion on the Fiscal Year 1988 Budget,
the appeal shall constitute the Depart- Public Law No. 100–202 (signed Decem-
ment’s final action in the matter. ber 22, 1987) [the Continuing Resolu-
(j) The Department shall notify the tion], and section 115 of the Airport
complainant of the results of the ap- and Airways Safety and Capacity Ex-
peal within 60 days of the receipt of the pansion Act of 1987, Public Law No.
request. If the Department determines 100–223 (signed December 30, 1987) [the
that it needs additional information Airport Safety Act]. These rules are in-
from the complainant, it shall have 60 tended to give uniform implementation
days from the date it receives the addi- to these statutes throughout DOT pro-
tional information to make its deter- curement and grant programs.
mination on the appeal.
(k) The time limits cited in para- § 30.3 Applicability.
graphs (g) and (j) of this section may be (a) The restrictions imposed by sec-
extended with the permission of the tion 109(a) of the Continuing Resolu-
Assistant Attorney General. tion extend to all DOT agencies as well
345
as all recipients of DOT funds. The reject to the restriction) entered into
strictions apply to all projects for after December 22, 1987, its date of en-
which funds are obligated or contracts actment, and before October 1, 1988.
or subcontracts are awarded during fis- The provisions of section 115 of the Air-
cal year 1988, including projects and port Safety Act apply to contracts
contracts under all DOT financial as- funded by the Act and entered into
sistance programs. The prohibition ap- after December 30, 1987, its date of en-
plies to public buildings and public actment; the restrictions remain effec-
works projects everywhere in the tive so long as money provided by the
United States or any territory or pos- Airport Safety Act is used. Accord-
session of the United States. U.S. over- ingly, any contracts or subcontracts
seas bases, installations, and embassies subject to the restrictions of this part
are not subject to this part. entered into with contractors or sub-
(b) The restrictions imposed by sec- contractors owned or controlled by
tion 115 of the Airport Safety Act ex- citizens of subject countries, as defined
tend to all projects for which funds are by §§ 30.7 and 30.9 of this part, since De-
made available by that Act, whether or cember 22, 1987 shall be canceled at no
not the contracts are awarded during cost to the Government, subject to the
fiscal year 1988. The restrictions apply waiver provisions of § 30.17 of this part.
to all contracts entered into under All public works or public buildings
grants authorized by the Airport Safe- contracts entered into after December
ty Act. 22, 1987, shall include, or be modified to
(c) This part applies to projects cov- include, a provision prohibiting sub-
ered by section 109(a) of the Continuing contracting with citizens of subject
Resolution, section 115 of the Airport countries, as defined by §§ 30.7 and 30.9
Safety Act, or both. Whether one or of this part.
the other statute or both apply, the ef-
fect on the project shall be the same, § 30.7 Definitions.
subject to paragraph (e) of this section. (a) Funds appropriated for FY 1988 by
(d) In addition to construction, alter- this resolution or any other law, as used
ation, and repair contracts, the restric- in this part with reference to section
tions of this part cover all architect, 109(a) of the Continuing Resolution,
engineering, and other services related means all appropriated and trust funds
to the preparation and performance of available to DOT, its modal adminis-
construction, alteration, and repair of tration, or their grantees for expendi-
public projects and public works. ture or obligation in fiscal year 1988,
(e) The restrictions of this part also regardless of the fiscal year in which
apply to all products used in the con- the funds were appropriated.
struction, alteration, or repair of pub- (b) Funds made available by this Act,
lic projects and public works; Provided, as used in this part with reference to
however, That section 115(a) of the Airport Safety
(1) The restrictions of this part do Act, means all funds, including trust
not apply to construction equipment or funds, made available to DOT, its
vehicles that do not become part of a modal administrations, or their grant-
delivered structure, product, or project ees by that Act, whether or not the
and contracts to be funded are awarded
(2) Notwithstanding paragraph (c) of during fiscal year 1988.
this section, the restrictions of section (c) Contractor and subcontractor
109(a) of the Continuing Resolution do means any person, other than a sup-
not apply to vehicles to be used by the plier of products, performing any archi-
project, including, but not limited to, tectural, engineering, or other service
buses, trucks, automobiles, rail rolling directly related to the preparation for
stock, and aircraft. or performance of the construction, al-
teration, or repair of any public build-
§ 30.5 Effective dates. ing or public work in the United States
The provisions of section 109(a) of the or any territory or possession of the
Continuing Resolution apply to con- United States.
tracts (or new subcontracts under ex- (d) Contractor or subcontractor of a for-
isting contracts, whether or not sub- eign country means any contractor or
346
subcontractor that is a citizen or na- country or any subdivision, territory,

tional of a foreign country, or is con- or possession thereof; or
trolled directly or indirectly by one or (f) In the case of a contractor or sub-
more citizens or nationals of a foreign contractor that is a joint venture, if
country. any participant meets any of the cri-
(e) Service of a foreign country means teria in paragraphs (a) through (e) of
any service provided by a person that this section.
is a citizen or national of a foreign
country, or is controlled by one or § 30.11 Use of solicitation provisions
and contract clauses.
more citizens or nationals of a foreign
country. (a) Unless the President or the Sec-
(f) Product of a foreign country means retary waives the restrictions imposed
construction materials, i.e., articles, by section 109(a) of the Continuing Res-
materials, and supplies brought to the olution in accordance with § 30.17 of
construction site for incorporation into this part, the contracting officer shall
the public works project. A product is insert a clause similar to the clause at
considered to have been produced in a § 30.15, Restrictions on Federal Public
foreign country if more than fifty per- Works Projects, in contractions and so-
cent of the total cost of the product is licitations, if—
allocable to production or manufacture (1) The contract is awarded on or
in the foreign country. after December 22, 1987, and before Oc-
(g) Foreign country means a country tober 1, 1988; and
included in the list of countries that (2) The contract obligates funds ap-
discriminate against U.S. firms pub- propriated for use in FY 1988 by the
lished by the U.S.T.R. Continuing Resolution or any other
law; and
§ 30.9 Citizenship: Direct or indirect (3) The contract is for the acquisition
control. of construction, alteration and repair,
architectural, engineering, or other
A contractor, subcontractor, or per- services directly related to the prepa-
son providing a service shall be consid- ration for, or performance of, construc-
ered to be a citizen or national of a for- tion, alteration, and repair for Federal
eign country, or controlled directly or public works projects inside the United
indirectly by citizens or nationals of a States, U.S. territories, or U.S. posses-
foreign country, within the meaning of sions.
this part. (b) Unless the Secretary waives the
(a) If 50 percent or more of the con- restrictions imposed by section 115 of
tractor or subcontractor is owned by the Airport Safety Act in accordance
one or more citizens or nationals of the with § 30.17 of this part, the contracting
foreign country; officer shall insert a clause similar to
(b) If the title to 50 percent or more the clause at § 30.15, Restrictions on
of the stock of the contractor or sub- Federal Public Works Projects, in con-
contractor is held subject to trust or fi- tracts and solicitations relating to any
duciary obligation in favor of one or project for which funds, including
more citizens or nationals of the for- grant funds, are made available by that
eign country; Act, whether or not the contract is
(c) If 50 percent or more of the voting awarded during fiscal year 1988.
power in the contractor or subcon- (c) Any contract already awarded
tractor is vested in or exercisable on that should have contained the clause
behalf of one or more citizens or na- prescribed in paragraph (a) or (b) of
tionals of the foreign country; this section, but did not, shall be modi-
(d) In the case of a partnership, if any fied to include the clause. In the event
general partner is a citizen or national that the contracting officer is unable
of the foreign country; to modify such contract, the contract
(e) In the case of a corporation, if the shall be canceled at no cost to the Gov-
number of its directors necessary to ernment, unless a waiver is granted in
constitute a quorum are citizens of the accordance with § 30.17 of this part.
foreign country or the corporation is (d) Contracting officers shall insert a

organized under the laws of the foreign provision similar to the solicitation
347
provision at § 30.13 of this part, Restric- (e) Restrictions on contract award. No con-
tions on Public Works Projects—Cer- tract will be awarded to an offeror (1) who is
tification, in solicitations containing owned or controlled by one or more citizens
or nationals of a foreign country included on
the clause at § 30.15 of this part, Re-
the list of countries that discriminate
strictions on Federal Public Works against U.S. firms published by the U.S.T.R.
Projects. or (2) whose subcontractors are owned or
(e) Any solicitation issued before De- controlled by one or more citizens or nation-
cember 22, 1987, that will result in the als of a foreign country on such U.S.T.R. list
award of a contract covered by para- or (3) who incorporates in the public works
graph (a) of this section after Decem- project any product of a foreign country on
ber 22, 1987, and before October 1, 1988, such U.S.T.R. list; unless a waiver to these
and that should have contained a pro- restrictions is granted by the President of
the United States or the Secretary of Trans-
vision similar to that § 30.13 of this
portation. (Notice of the granting of a waiver
part, but did not, shall be amended to will be published in the FEDERAL REGISTER.)
include the provision if the contract (f) System. Nothing contained in the fore-
has not yet been awarded. going shall be construed to require establish-
ment of a system of records in order to
§ 30.13 Restrictions on Federal public render, in good faith, the certification re-
works projects: Certification. quired by paragraph (b) of this provision.
As prescribed in § 30.11(c) of this part, The knowledge and information of an Offeror
the contracting officer shall insert the is not required to exceed that which is nor-
following provision in solicitations mally possessed by a prudent person in the
ordinary course of business dealings.
containing the clause at § 30.15, Restric-
(g) Subcontracts. The Offeror agrees that,
tions on Federal Public Works Projects: if awarded a contract resulting from this so-
RESTRICTIONS ON FEDERAL PUBLIC WORKS licitation, it will incorporate this solicita-
PROJECTS—CERTIFICATION tion provision, including this paragraph (g),
in each solicitation issued under such con-
(a) Definitions. The definitions pertaining tract.
to this provision are those that are set forth
in 49 CFR 30.7–30.9. (End of provision)
(b) Certification. By signing this solicita-
tion, the Offeror certifies that with respect § 30.15 Restrictions on Federal public
to this solicitation, and any resultant con- works projects.
tract, the Offeror—
(1) Is [ ] is not [ ] a contractor of a for- The contracting officer shall insert
eign country included on the list of countries the following clause in solicitations
that discriminated against U.S. firms pub- and contracts as prescribed at § 30.11(a)
lished by the Office of the United States through (b) of this part:
Trade Representative (U.S.T.R.);
(2) Has [ ] has not [ ] entered into any RESTRICTIONS ON FEDERAL PUBLIC WORKS
contract or subcontract with a subcon- PROJECTS
tractor of a foreign country included on the
list of countries that discriminate against (a) Definitions. The definitions pertaining
U.S. firms published by the U.S.T.R.; and to this clause are those that are set forth in
(3) Has [ ] has not [ ] entered into any 49 CFR 30.7–30.9
subcontract for any product to be used on (b) General. This clause implements the
the Federal public works project that is pro- procurement provisions contained in the
duced in a foreign country included on the Continuing Resolution on the Fiscal Year
list of countries that discriminate against 1988 Budget, Public Law No. 100–202, and the
U.S. firms published by the U.S.T.R. Airport and Airway Safety and Capacity Ex-
(c) Applicability of 18 U.S.C. 1001. This cer- pansion Act of 1987, Public Law No. 100–223.
tification in this solicitation provision con- (c) Restrictions. The Contractor shall not
cerns a matter within the jurisdiction of an knowingly enter into any subcontract under
agency of the United States and the making this contract: (1) With a subcontractor of a
of a false, fictitious, or fraudulent certifi- foreign country included on the list of coun-
cation may render the maker subject to tries that discriminate against U.S. firms
prosecution under Title 18, United States published by the United States Trade Rep-
Code, Section 1001. resentative (U.S.T.R.); or (2) for the supply
(d) Notice. The Offeror shall provide imme- of any product for use on the Federal Public
diate written notice to the Contracting Offi- works project under this contract that is
cer if, at any time prior to contract award, produced or manufactured in a foreign coun-
the Offeror learns that its certification was try included on the list of countries that dis-
erroneous when submitted or has become er- criminate against U.S. firms published by
roneous by reason of changed circumstances. the U.S.T.R.
348
(d) Certification. The Contractor may rely THIS CERTIFICATION CONCERNS A
upon the certification of a prospective sub- MATTER WITHIN THE JURISDIC-
contractor that it is not a subcontractor of a TION OF AN AGENCY OF THE
foreign country included on the list of coun-
UNITED STATES AND THE MAK-
tries that discriminates against U.S. firms
published by the U.S.T.R. and that products ING OF A FALSE FICTITIOUS, OR
supplied by such subcontractor for use on FRAUDULENT CERTIFICATION
the Federal public works project under this MAY RENDER THE MAKER SUB-
contract are not products of a foreign coun- JECT TO PROSECUTION UNDER
try included on the list of countries that dis- TITLE 18, UNITED STATES CODE,
criminate against U.S. firms published by SECTION 1001
the U.S.T.R., unless the contractor has
knowledge that the certification is erro- (2) The Offeror shall provide immediate
neous. written notice to the Contractor if, at any
(e) Erroneous certification. The certifi- time, the Offeror learns that its certification
cation in paragraph (b) of the provision enti- was erroneous by reason of changed cir-
tled ‘‘Restriction on Federal Public Works cumstances.
Projects—Certification,’’ is a material rep- (3) The Contractor shall not knowingly
resentation of fact upon which reliance was enter into any subcontract under this con-
placed when making the award. If it is later tract: (i) with a subcontractor of a foreign
determined that the Contractor knowingly country included on the list of countries
rendered an erroneous certification, in addi- that discriminate against U.S. firms pub-
tion to other remedies available to the Gov- lished by the U.S.T.R.; or (ii) for the supply
ernment, the Contracting Officer may cancel of any product for use on the Federal public
this contract for default at no cost to the works project under this contract that is
Government. produced or manufactured in a foreign coun-
try included on the list of countries that dis-
(f) Cancellation. Unless the restrictions of
criminate against U.S. firms published by
this clause are waived as provided in para-
the U.S.T.R. The contractor may rely upon
graph (e) of the provision entitled ‘‘Restric-
the certification in paragraph (g)(1) of this
tion on Federal Public Works Projects—Cer-
clause unless it has knowledge that the cer-
tification,’’ if the Contractor knowingly en-
tification is erroneous.
ters into a subcontract with a subcontractor (4) Unless the restrictions of this clause
that is a subcontractor of a foreign country have been waived under the contract for the
included on the list of countries that dis- Federal public works project, if a contractor
criminate against U.S. firms published by knowingly enters into a subcontract with a
the U.S.T.R. or that supplies any product for subcontractor that is a subcontractor of a
use on the Federal public works project foreign country included on the list of coun-
under this contract of a foreign country in- tries that discriminate against U.S. firms
cluded on the list of countries that discrimi- published by the U.S.T.R. or that supplies
nate against U.S. firms published by the any product for use on the Federal public
U.S.T.R., the Contracting Officer may cancel works project under this contract that is
this contract for default, at no cost to the produced or manufactured in a foreign coun-
Government. try included on the list of countries that dis-
(g) Subcontracts. The Contractor shall in- criminate against U.S. firms published by
corporate this clause, without modification, the U.S.T.R., the Government Contracting
including this paragraph (g) in all solicita- Officer may direct, through higher-tier con-
tions and subcontracts under this contract: tractors, cancellation of this contract at no
cost to the Government.
CERTIFICATION REGARDING RESTRIC- (5) Definitions. The definitions pertaining
TIONS ON FEDERAL PUBLIC WORKS to this clause are those that are set forth in
PROJECTS—SUBCONTRACTORS 49 CFR 30.7–30.9.
(6) The certification in paragraph (g)(1) of
(1) The Offeror/Contractor, by submission this clause is a material representation of
of an offer and/or execution of a contract cer- fact upon which reliance was placed when
tifies that the Offeror/Contractor is (i) not making the award. If it is later determined
an Offeror/Contractor owned or controlled by that the Contractor knowingly rendered an
one or more citizens or nationals of a foreign erroneous certification, in addition to other
country included on the list of countries remedies available to the Government, the
that discriminate against U.S. firms pub- Government Contracting Officer may direct,
lished by the United States Trade Represent- through higher-tier Contractors, cancella-
ative (U.S.T.R.) or (2) not supplying any tion of this subcontract at no cost to the
product for use on the Federal public works Government.
project that is produced or manufactured in (7) The Contractor agrees to insert this
a foreign country included on the list of for- clause, without modification, including this
eign countries that discriminate against U.S. paragraph, in all solicitations and sub-
firms published by the U.S.T.R. contracts under this clause.
349
(End of clause) igible for award on the basis of applica-

tion of the provisions in this part.
§ 30.17 Waivers.
(a) The Secretary may waive the re- PART 31—PROGRAM FRAUD CIVIL
strictions imposed by section 115 of the REMEDIES
Airport Safety Act on the use of a
product or service in a project if the Sec.
Secretary determines that: 31.1 Basis and purpose.
(1) Application of the restriction to 31.2 Definitions.
such product, service, or project would 31.3 Basis for civil penalties and assess-
not be in the public interest; ments.
(2) Products or services of the same 31.4 Investigation.
class or kind are not produced or of- 31.5 Review by the reviewing official.
fered in the United States, or in any 31.6 Prerequisites for issuing a complaint.
31.7 Complaint.
foreign country that is not listed by
31.8 Service of complaint.
the U.S.T.R. in sufficient and reason- 31.9 Answer.
able available quantities and of a satis- 31.10 Default upon failure to answer.
factory quality; or 31.11 Referral of complaint and answer to
(3) Exclusion of such product or serv- the ALJ.
ice from the project would increase the 31.12 Notice of hearing.
cost of the overall project contract by 31.13 Parties to the hearing.
more than 20 percent. 31.14 Separation of functions.
31.15 Ex parte contacts.
(b) The President or the Secretary
31.16 Disqualification of reviewing official
may waive the restrictions imposed by or ALJ.
section 109(a) of the Continuing Resolu- 31.17 Rights of parties.
tion with respect to an individual con- 31.18 Authority of the ALJ.
tract if the President or the Secretary 31.19 Prehearing conferences.
determines that such action is nec- 31.20 Disclosure of documents.
essary in the public interest, on a con- 31.21 Discovery.
tract-by-contract basis. The Secretary 31.22 Exchange of witness lists, statements,
and exhibits.
may apply the factors listed in para-
31.23 Subpoenas for attendance at hearing.
graphs (a)(2) and (a)(3) of this section 31.24 Protective order.
in determining whether a waiver is in 31.25 Fees.
the public interest. 31.26 Filing, form, and service of papers.
(c) The authority of the President or 31.27 Computation of time.
the Secretary to issue waivers may not 31.28 Motions.
be delegated. The Department shall 31.29 Sanctions.
publish notice of any waiver granted 31.30 The hearing and burden of proof.
pursuant to this part by the President 31.31 Determining the amount of penalties
and assessments.
or the Secretary in the FEDERAL REG- 31.32 Location of hearing.
ISTER within ten days. The notice shall 31.33 Witnesses.
describe in detail the contract in- 31.34 Evidence.
volved, the specific reasons for grant- 31.35 The record.
ing the waiver, and how the waiver 31.36 Post-hearing briefs.
meets the criteria of this section. 31.37 Initial decision.
31.38 Reconsideration of initial decision.
§ 30.19 Buy American Act. 31.39 Appeal to authority head.
31.40 Stays ordered by the Department of
The restrictions of this part are in Justice.
addition to any other restrictions con- 31.41 Stay pending appeal.
tained in Federal law, including the 31.42 Judicial review.
Buy American Act, 41 U.S.C. 10a–10d, 31.43 Collection of civil penalties and as-
and Buy American provisions in legis- sessments.
lation governing DOT provisions. Nor- 31.44 Right to administrative offset.
mal evaluation methods for imple- 31.45 Deposit in Treasury of United States.
31.46 Compromise or settlement.
menting the provisions of the Buy
31.47 Limitations.
American Act in contracts for the con-
struction, alteration, or repair of pub- AUTHORITY: 31 U.S.C. 3801–3812.
lic buildings or public works will be ap- SOURCE: 53 FR 881, Jan. 14, 1988, unless oth-
plied after determining the offeror’s el- erwise noted.
350
§ 31.1 Basis and purpose. (iii) Will reimburse such recipient or

party for the purchase of such property
(a) Basis. This part implements the
or services; or
Program Fraud Civil Remedies Act of
(2) For the payment of money (in-
1986, Public Law No. 99–509, sections
cluding money representing grants,
6101–6104, 100 Stat. 1874 (October 21, loans, insurance, or benefits) if the
1986), to be codified at 31 U.S.C. 3801– United States—
3812. 31 U.S.C. 3809 of the statute re- (i) Provided any portion of the money
quires each authority head to promul- requested or demanded; or
gate regulations necessary to imple- (ii) Will reimburse such recipient or
ment the provisions of the statute. party for any portion of the money
(b) Purpose. This part (1) establishes paid on such request or demand; or
administrative procedures for imposing (c) Made to the authority which has
civil penalties and assessments against the effect of decreasing an obligation
persons who make, submit, or present, to pay or account for property, serv-
or cause to be made, submitted, or pre- ices, or money.
sented, false, fictitious, or fraudulent Complaint means the administrative
claims or written statements to the au- complaint served by the reviewing offi-
thority or to certain others, and (2) cial on the defendant under § 31.7.
specifies the hearing and appeal rights Defendant means any person alleged
of persons subject to allegations of li- in a complaint under § 31.7 to be liable
ability for such penalties and assess- for a civil penalty or assessment under
ments. § 31.3.
Government means the United States
§ 31.2 Definitions. Government.
ALJ means an Administrative Law Individual means a natural person.
Judge in the authority appointed pur- Initial decision means the written de-
suant to 5 U.S.C. 3105 or detailed to the cision of the ALJ required by §§ 31.10 or
authority pursuant to 5 U.S.C. 3344. 31.37 and includes a revised initial deci-
Authority means the Department of sion issued following a remand or a mo-
Transportation. tion for reconsideration.
Authority head means the Assistant Investigating official means the In-
Secretary or Deputy Assistant Sec- spector General of the Department of
retary for Budget and Programs, De- Transportation or an officer or em-
partment of Transportation. ployee of the Office of Inspector Gen-
eral designated by the Inspector Gen-
Benefit means, in the context of
eral and serving in a position for which
‘‘statement,’’ anything of value, in-
the rate of basic pay is not less than
cluding but not limited to any advan-
the minimum rate of basic pay for
tage, preference, privilege, license, per-
grade GS–16 under the General Sched-
mit, favorable decision, ruling, status,
ule.
or loan guarantee.
Knows or has reason to know, means
Claim means any request, demand, or
that a person, with respect to a claim
submission—
or statement—
(a) Made to the authority for prop- (a) Has actual knowledge that the
erty, services, or money (including claim or statement is false, fictitious,
money representing grants, loans, in- or fraudulent;
surance, or benefits); (b) Acts in deliberate ignorance of
(b) Made to a recipient of property, the truth or falsity of the claim or
services, or money from the authority statement; or
or to a party to a contract with the au- (c) Acts in reckless disregard of the
thority— truth or falsity of the claim or state-
(1) For property or services if the ment.
United States— Makes, wherever it appears, shall in-
(i) Provided such property or serv- clude the terms presents, submits, and
ices; causes to be made, presented, or sub-
(ii) Provided any portion of the funds mitted. As the context requires, making
for the purchase of such property or or made, shall likewise include the cor-
services; or responding forms of such terms.
351
Person means any individual, part- (iii) Includes or is supported by any

nership, corporation, association, or written statement that—
private organization, and includes the (A) Omits a material fact;
plural of that term. (B) Is false, fictitious, or fraudulent
Representative means an attorney who as a result of such omission; and
is a member in good standing of the bar (C) Is a statement in which the per-
of any State, Territory, or possession son making such statement has a duty
of the United States or of the District to include such material fact; or
of Columbia or the Commonwealth of (iv) Is for payment for the provision
Puerto Rico. This definition is not in- of property or services which the per-
tended to foreclose pro se appearances. son has not provided as claimed, shall
An individual may appear for himself be subject, in addition to any other
or herself, and a corporation or other remedy that may be prescribed by law,
entity may appear by an owner, officer, to a civil penalty of not more than
or employee of the corporation or enti- $5,500 for each such claim. 1
ty. (2) Each voucher, invoice, claim
Reviewing official means the Deputy form, or other individual request or de-
General Counsel of the Department of mand for property, services, or money
Transportation, or other officer or em- constitutes a separate claim.
ployee of the Department who is des- (3) A claim shall be considered made
ignated by the Deputy General Counsel to the authority, recipient, or party
and eligible under 31 U.S.C. 3801(a)(8). when such claim is actually made to an
Statement means any representation, agent, fiscal intermediary, or other en-
certification, affirmation, document, tity, including any State or political
record, or accounting or bookkeeping subdivision thereof, acting for or on be-
entry made— half of the authority, recipient, or
(a) With respect to a claim or to ob- party.
tain the approval or payment of a (4) Each claim for property, services,
claim (including relating to eligibility or money is subject to a civil penalty
to make a claim); or regardless of whether such property,
(b) With respect to (including relat- services, or money is actually delivered
ing to eligibility for)— or paid.
(1) A contract with, or bid or pro- (5) If the Government has made any
posal for a contract with; or payment (including transferred prop-
(2) A grant, loan, or benefit from, erty or provided services) on a claim, a
person subject to a civil penalty under
the authority, or any State, political paragraph (a)(1) of this section shall
subdivision of a State, or other party, also be subject to an assessment of not
if the United States Government pro- more than twice the amount of such
vides any portion of the money or prop- claim or that portion thereof that is
erty under such contract or for such determined to be in violation of para-
grant, loan, or benefit, or if the Gov- graph (a)(1) of this section. Such as-
ernment will reimburse such State, po- sessment shall be in lieu of damages
litical subdivision, or party for any sustained by the Government because
portion of the money or property under of such claim.
such contract or for such grant, loan, (b) Statements. (1) Except as provided
or benefit. in paragraph (c) of this section, any
person who makes a written statement
§ 31.3 Basis for civil penalties and as-
sessments. that—
(i) The person knows or has reason to
(a) Claims. (1) Except as provided in know—
paragraph (c) of this section, any per- (A) Asserts a material fact which is
son who makes a claim that the person false, fictitious, or fraudulent; or
knows or has reason to know—
(i) Is false, fictitious, or fraudulent; 1 As adjusted in accordance with the Fed-
(ii) Includes or is supported by any eral Civil Penalties Inflation Adjustment
written statement which asserts a ma-
Act of 1990 (Pub. L. 101–140), as amended by

terial fact which is false, fictitious, or the Debt Collection Improvement Act of 1996
fraudulent; (Pub. L. 104–143, section 31001).
352
(B) Is false, fictitious, or fraudulent (2) The investigating official may

because it omits a material fact that designate a person to act on his or her
the person making the statement has a behalf to receive the documents
duty to include in such statement; and sought; and
(ii) Contains, or is accompanied by, (3) The person receiving such sub-
an express certification or affirmation poena shall be required to tender to the
of the truthfulness and accuracy of the investigating official or the person des-
contents of the statement, shall be sub- ignated to receive the documents a cer-
ject, in addition to any other remedy tification that the documents sought
that may be prescribed by law, to a
have been produced, or that such docu-
civil penalty of not more than $5,500. 2
ments are not available and the rea-
(2) Each written representation, cer-
tification, or affirmation constitutes a sons therefor, or that such documents,
separate statement. suitably identified, have been withheld
(3) A statement shall be considered based upon the assertion of an identi-
made to the authority when such state- fied privilege.
ment is actually made to an agent, fis- (b) If the investigating official con-
cal intermediary, or other entity, includes that an action under the Pro-
cluding any State or political subdivi- gram Fraud Civil Remedies Act may be
sion thereof, acting for or on behalf of warranted, the investigating official
the authority. shall submit a report containing the
(c) No proof of specific intent to de- findings and conclusions of such inves-
fraud is required to establish liability tigation to the reviewing official.
under this section. (c) Nothing in this section shall pre-
(d) In any case in which it is deter- clude or limit an investigating offi-
mined that more than one person is lia- cial’s discretion to refer allegations di-
ble for making a claim or statement rectly to the Department of Justice for
under this section, each such person suit under the False Claims Act or
may be held liable for a civil penalty other civil relief, or to defer or post-
under this section.
pone a report or referral to the review-
(e) In any case in which it is deter-
ing official to avoid interference with a
mined that more than one person is lia-
ble for making a claim under this sec- criminal investigation or prosecution.
tion on which the Government has (d) Nothing in this section modifies
made payment (including transferred any responsibility of an investigating
property or provided services), an as- official to report violations of criminal
sessment may be imposed against any law to the Attorney General.
such person or jointly and severally
against any combination of such per- § 31.5 Review by the reviewing official.
sons. (a) If, based on the report of the in-
[53 FR 881, Jan. 14, 1988, as amended at 62 FR vestigating official under § 31.4(b), the
6720, Feb. 13, 1997] reviewing official determines that
there is adequate evidence to believe
§ 31.4 Investigation. that a person is liable under § 31.3 of
(a) If an investigating official con- this part, the reviewing official shall
cludes that a subpoena pursuant to the transmit to the Attorney General a
authority conferred by 31 U.S.C. 3804(a) written notice of the reviewing offi-
is warranted— cial’s intention to issue a complaint
(1) The subpoena so issued shall no- under § 31.7.
tify the person to whom it is addressed (b) Such notice shall include—
of the authority under which the sub- (1) A statement of the reviewing offi-
poena is issued and shall identify the cial’s reasons for issuing a complaint;
records or documents sought; (2) A statement specifying the evi-
dence that supports the allegations of
2 As adjusted in accordance with the Fed-
liability;
eral Civil Penalties Inflation Adjustment
(3) A description of the claims or
Act of 1990 (Pub. L. 101–140), as amended by

the Debt Collection Improvement Act of 1996 statements upon which the allegations
(Pub. L. 104–143, section 31001). of liability are based;
353
(4) An estimate of the amount of (b) The complaint shall state—

money or the value of property, serv- (1) The allegations of liability
ices, or other benefits requested or de- against the defendant, including the
manded in violation of § 31.3 of this statutory basis for liability, an identi-
part; fication of the claims or statements
(5) A statement of any exculpatory or that are the basis for the alleged liabil-
mitigating circumstances that may re- ity, and the reasons why liability alleg-
late to the claims or statements known edly arises from such claims or state-
by the reviewing official or the inves- ments;
tigating official; and (2) The maximum amount of pen-
(6) A statement that there is a rea- alties and assessments for which the
sonable prospect of collecting an ap- defendant may be held liable;
propriate amount of penalties and as- (3) Instructions for filing an answer
sessments. to request a hearing, including a spe-
cific statement of the defendant’s right
§ 31.6 Prerequisites for issuing a com-
plaint. to request a hearing by filing an an-
swer and to be represented by a rep-
(a) The reviewing official may issue a resentative; and
complaint under § 31.7 only if— (4) That failure to file an answer
(1) The Department of Justice ap- within 30 days of service of the com-
proves the issuance of a complaint in a plaint will result in the imposition of
written statement described in 31 the maximum amount of penalties and
U.S.C. 3803(b)(1), and assessments without right to appeal, as
(2) In the case of allegations of liabil- provided in § 31.10.
ity under § 31.3(a) with respect to a (c) At the same time the reviewing
claim, the reviewing official deter- official serves the complaint, he or she
mines that, with respect to such claim shall serve the defendant with a copy
or a group of related claims submitted of these regulations.
at the same time such claim is sub-
mitted (as defined in paragraph (b) of § 31.8 Service of complaint.
this section), the amount of money or
the value of property or services de- (a) Service of a complaint must be
manded or requested in violation of made by certified or registered mail or
§ 31.3(a) does not exceed $150,000. by delivery in any manner authorized
(b) For the purposes of this section, a by Rule 4(d) of the Federal Rules of
related group of claims submitted at Civil Procedure. Service of a complaint
the same time shall include only those is complete upon receipt.
claims arising from the same trans- (b) Proof of service, stating the name
action (e.g., grant, loan, application, or and address of the person on whom the
contract) that are submitted simulta- complaint was served, and the manner
neously as part of a single request, de- and date of service, may be made by—
mand, or submission. (1) Affidavit of the individual serving
(c) Nothing in this section shall be the complaint by delivery;
construed to limit the reviewing offi- (2) A United States Postal Service re-
cial’s authority to join in a single com- turn receipt card acknowledging re-
plaint against a person’s claims that ceipt; or
are unrelated or were not submitted si- (3) Written acknowledgment of re-
multaneously, regardless of the ceipt by the defendant or his or her
amount of money, or the value of prop- representative.
erty or services, demanded or re-
quested. § 31.9 Answer.
(a) The defendant may request a
§ 31.7 Complaint. hearing by serving an answer on the re-
(a) On or after the date the Depart- viewing official within 30 days of serv-
ment of Justice approves the issuance ice of the complaint. Service of an an-
of a complaint in accordance with 31 swer shall be made by delivering a copy
U.S.C. 3803(b)(1), the reviewing official to the reviewing official or by placing a
may serve a complaint on the defend- copy in the United States mail, postage
ant, as provided in § 31.8. prepaid and addressed to the reviewing
354
official. Service of an answer is com- (d) Except as otherwise provided in

plete upon such delivery or mailing. An this section, by failing to answer on
answer shall be deemed to be a request time, the defendant waives any right to
for hearing. further review of the penalties and as-
(b) In the answer, the defendant— sessments imposed under paragraph (c)
(1) Shall admit or deny each of the of this section, and the initial decision
allegations of liability made in the shall become final and binding upon
complaint; the parties 30 days after it is issued.
(2) Shall state any defense on which (e) If, before such an initial decision
the defendant intends to rely; becomes final, the defendant files a
(3) May state any reasons why the demotion seeking to reopen on the
fendant contends that the penalties grounds that extraordinary cir-
and assessments should be less than cumstances prevented the defendant
the statutory maximum; and from answering, the initial decision
(4) Shall state the name, address, and shall be stayed pending the ALJ’s deci-
telephone number of the person author- sion on the motion.
ized by the defendant to act as defend- (f) If, on such motion, the defendant
ant’s representative, if any. can demonstrate extraordinary cir-
(c) If the defendant is unable to file cumstances excusing the failure to an-
an answer meeting the requirements of swer on time, the ALJ shall withdraw
paragraph (b) of this section within the the initial decision in paragraph (c) of
time provided, the defendant may, be- this section, if such a decision has been
fore the expiration of 30 days from issued, and shall grant the defendant
service of the complaint, serve on the an opportunity to answer the com-
reviewing official a general answer de- plaint.
nying liability and requesting a hear- (g) A decision of the ALJ denying a
ing, and a request for an extension of defendant’s motion under paragraph (e)
time within which to serve an answer of this section is not subject to recon-
meeting the requirements of paragraph sideration under § 31.38.
(b) of this section. The reviewing offi- (h) The defendant may appeal to the
cial shall file promptly the complaint, authority head the decision denying a
the general answer denying liability, motion to reopen by filing a notice of
and the request for an extension of appeal in accordance with § 31.26 within
time as provided in § 31.11. For good 15 days after the ALJ denies the mo-
cause shown, the ALJ may grant the tion. The timely filing of a notice of
defendant up to 30 additional days from appeal shall stay the initial decision
the original due date within which to until the authority head decides the
serve an answer meeting the require- issue.
ments of paragraph (b) of this section. (i) If the defendant files a timely no-
tice of appeal, the Docket Clerk shall
§ 31.10 Default upon failure to answer. forward two copies of the notice of ap-
(a) If the defendant does not answer peal to the authority head, and shall
within the time prescribed in § 31.9(a), forward or make available the record
the reviewing official may refer the of the proceeding to the authority
complaint to an ALJ by filing the com- head.
plaint and a statement that defendant (j) The authority head shall decide
has failed to answer on time. expeditiously whether extraordinary
(b) Upon the referral of the com- circumstances excuse the defendant’s
plaint, the ALJ shall promptly serve failure to answer on time based solely
on defendant in the manner prescribed on the record before the ALJ.
in § 31.8, a notice that an initial deci- (k) If the authority head decides that
sion will be issued under this section. extraordinary circumstances excused
(c) In addition, the ALJ shall assume the defendant’s failure to answer on
the facts alleged in the complaint to be time, the authority head shall remand
true, and, if such facts establish liabil- the case to the ALJ with instructions
ity under § 31.3, the ALJ shall issue an to grant the defendant an opportunity
initial decision imposing the maximum to answer.
amount of penalties and assessments (l) If the authority head decides that
allowed under the statute. the defendant’s failure to answer on
355
time is not excused, the authority head (2) Participate or advise in the initial
shall reinstate the initial decision of decision or the review of the initial de-
the ALJ, which shall become final and cision by the authority head, except as
binding upon the parties 30 days after a witness or a representative in public
the authority head issues such deci- proceedings; or
sion. (3) Make the collection of penalties
and assessments under 31 U.S.C. 3806.
§ 31.11 Referral of complaint and an- (b) The ALJ shall not be responsible
swer to the ALJ.
to, or subject to the supervision or di-
Upon receipt of an answer, the re- rection of, the investigating official or
viewing official shall refer the matter the reviewing official.
to an ALJ by filing the complaint and (c) Except as provided in paragraph
answer in accordance with § 31.26. (a) of this section, the representative
for the Government may be employed
§ 31.12 Notice of hearing. anywhere in the authority, including
(a) When the ALJ receives the com- in the offices of either the inves-
plaint and answer, the ALJ shall tigating official or the reviewing offi-
promptly serve a notice of hearing cial.
upon the defendant in the manner pre-
scribed by § 31.8. At the time, the ALJ § 31.15 Ex parte contacts.
shall send a copy of such notice to the No party or person (except employees
representative for the Government and of the ALJ’s office) shall communicate
shall file a copy with the Docket Clerk. in any way with the ALJ on any mat-
(b) Such notice shall include— ter at issue in a case, unless on notice
(1) The tentative time and place, and and opportunity for all parties to par-
the nature of the hearing; ticipate. This provision does not pro-
(2) The legal authority and jurisdic- hibit a person or party from inquiring
tion under which the hearing is to be about the status of a case or asking
held; routine questions concerning adminis-
(3) The matters of fact and law to be trative functions or procedures.
asserted;
(4) A description of the procedures for § 31.16 Disqualification of reviewing
the conduct of the hearing; official or ALJ.
(5) The name, address, and telephone (a) A reviewing official or ALJ in a
number of the representative of the particular case may disqualify himself
Government and of the defendant, if or herself at any time.
any; and (b) A party may file a motion for dis-
(6) Such other matters as the ALJ qualification of a reviewing official or
deems appropriate. an ALJ. Such motion shall be accom-
panied by an affidavit alleging personal
§ 31.13 Parties to the hearing. bias or other reason for disqualifica-
(a) The parties to the hearing shall tion.
be the defendant and the authority. (c) Such motion and affidavit shall be
(b) Pursuant to 31 U.S.C. 3730(c)(5), a filed promptly upon the party’s dis-
private plaintiff under the False covery of reasons requiring disquali-
Claims Act may participate in these fication, or such objections shall be
proceedings to the extent authorized deemed waived.
by the provisions of that Act. (d) Such affidavit shall state specific
facts that support the party’s belief
§ 31.14 Separation of functions. that personal bias or other reason for
(a) The investigating official, the re- disqualification exists and the time
viewing official, and any employee or and circumstances of the party’s dis-
agent of the authority who takes part covery of such facts. It shall be accom-
in investigating, preparing, or pre- panied by a certificate of the rep-
senting a particular case may not, in resentative of record that it is made in
such case or a factually related case— good faith.
(1) Participate in the hearing as the (e)(1) If the ALJ determines that a
ALJ; reviewing official is disqualified, the
356
ALJ shall dismiss the complaint with- (8) Regulate the course of the hearing
out prejudice. and the conduct of representatives and
(2) If the ALJ disqualifies himself or parties;
herself, the case shall be reassigned (9) Examine witnesses;
promptly to another ALJ. (10) Receive, rule on, exclude, or
(3) If the ALJ denies a motion to dis- limit evidence;
qualify, the authority head may deter- (11) Upon motion of a party, take of-
mine the matter only as part of his or ficial notice of facts;
her review of the initial decision upon (12) Upon motion of a party, decide
appeal, if any. cases, in whole or in part, by summary
judgment where there is no disputed
§ 31.17 Rights of parties. issue of material fact;
Except as otherwise limited by this (13) Conduct any conference, argu-
part, all parties may— ment, or hearing on motions in person
(a) Be accompanied, represented, and or by telephone; and
advised by a representative; (14) Exercise such other authority as
(b) Participate in any conference is necessary to carry out the respon-
held by the ALJ; sibilities of the ALJ under this part.
(c) Conduct discovery; (c) The ALJ does not have the au-
(d) Agree to stipulations of fact or thority to find Federal statutes or reg-
law, which shall be made part of the ulations invalid.
record;
(e) Present evidence relevant to the § 31.19 Prehearing conferences.
issues at the hearing; (a) The ALJ may schedule prehearing
(f) Present and cross-examine wit- conferences as appropriate.
nesses; (b) Upon the motion of any party, the
(g) Present oral arguments at the ALJ shall schedule at least one pre-
hearing as permitted by the ALJ; and hearing conference at a reasonable
(h) Submit written briefs and pro- time in advance of the hearing.
posed findings of fact and conclusions (c) The ALJ may use prehearing con-
of law after the hearing. ferences to discuss the following:
(1) Simplification of the issues;
§ 31.18 Authority of the ALJ. (2) The necessity or desirability of
(a) The ALJ shall conduct a fair and amendments to the pleadings, includ-
impartial hearing, avoid delay, maining the need for a more definite state-
tain order, and assure that a record of ment;
the proceeding is made. (3) Stipulations and admissions of
(b) The ALJ has the authority to— fact or as to the contents and authen-
(1) Set and change the date, time, ticity of documents;
and place of the hearing upon reason- (4) Whether the parties can agree to
able notice to the parties; submission of the case on a stipulated
(2) Continue or recess the hearing in record;
whole or in part for a reasonable period (5) Whether a party chooses to waive
of time; appearance at an oral hearing and to
(3) Hold conferences to identify or submit only documentary evidence
simplify the issues, or to consider (subject to the objection of other par-
other matters that may aid in the ex- ties) and written argument;
peditious disposition of the proceeding; (6) Limitation of the number of wit-
(4) Administer oaths and affirma- nesses;
tions; (7) Scheduling dates for the exchange
(5) Issue subpoenas requiring the at- of witness lists and of proposed exhib-
tendance of witnesses and the produc- its;
tion of documents at depositions or at (8) Discovery;
hearings; (9) The time and place for the hear-
(6) Rule on motions and other proce- ing; and
dural matters; (10) Such other matters as may tend
(7) Regulate the scope and timing of to expedite the fair and just disposition
discovery; of the proceedings.
357
(d) The ALJ may issue an order con- herein shall be interpreted to require
taining all matters agreed upon by the the creation of a document.
parties or ordered by the ALJ at a pre- (c) Unless mutually agreed to by the
hearing conference. parties, discovery is available only as
ordered by the ALJ. The ALJ shall reg-
§ 31.20 Disclosure of documents. ulate the timing of discovery.
(a) Upon written request to the re- (d) Motions for discovery. (1) A party
viewing official, the defendant may re- seeking discovery may file a motion.
view any relevant and material docu- Such a motion shall be accompanied by
ments, transcripts, records, and other a copy of the request for production of
materials that relate to the allegations documents, request for admissions, or
set out in the complaint and upon interrogatories, or in the case of depo-
which the findings and conclusions of sitions, a summary of the scope of the
the investigating official under § 31.4(b) proposed deposition.
are based, unless such documents are (2) Within ten days of service, a party
subject to a privilege under Federal may file an opposition to the motion
law. Upon payment of fees for duplica- and/or a motion for protective order as
tion, the defendant may obtain copies provided in § 31.24.
of such documents. (3) The ALJ may grant a motion for
(b) Upon written request to the re- discovery only if he or she finds that
viewing official, the defendant also the discovery sought—
may obtain a copy of all exculpatory (i) Is necessary for the expeditious,
information in the possession of the re- fair, and reasonable consideration of
viewing official or investigating offi- the issues;
cial relating to the allegations in the (ii) Is not unduly costly or burden-
complaint, even if it is contained in a some;
document that would otherwise be (iii) Will not unduly delay the pro-
privileged. If the document would oth- ceeding; and
erwise be privileged, only that portion (iv) Does not seek privileged informa-
containing exculpatory information tion.
must be disclosed. (4) The burden of showing that dis-
(c) The notice sent to the Attorney covery should be allowed is on the
General from the reviewing official as party seeking discovery.
described in § 31.5 is not discoverable (5) The ALJ may grant discovery sub-
under any circumstances. ject to a protective order under § 31.24.
(d) The defendant may file a motion (e) Depositions. (1) If a motion for dep-
to compel disclosure of the documents osition is granted, the ALJ shall issue
subject to the provisions of this sec- a subpoena for the deponent, which
tion. Such a motion may only be filed may require the deponent to produce
following the serving of an answer pur- documents. The subpoena shall specify
suant to § 31.9. the time and place at which the deposi-
tion will be held.
§ 31.21 Discovery. (2) The party seeking to depose shall
serve the subpoena in the manner pre-
(a) The following types of discovery scribed in § 31.8.
are authorized: (3) The deponent may file a motion to
(1) Requests for production of docu- quash the subpoena or a motion for a
ments for inspection and copying; protective order within ten days of
(2) Requests for admissions of the au- service. If the ALJ has not acted on
thenticity of any relevant document or such a motion by the return date, such
of the truth of any relevant fact; date shall be suspended pending the
(3) Written interrogatories; and ALJ’s final action on the motion.
(4) Depositions. (4) The party seeking to depose shall
(b) For the purpose of this section provide for the taking of a verbatim
and §§ 31.22 and 31.23, the term ‘‘docu- transcript of the deposition, which it
ments’’ includes information, docu- shall make available to all other par-
ments, reports, answers, records, ac- ties for inspection and copying.
counts, papers, and other data and doc- (f) Each party shall bear its own
umentary evidence. Nothing contained costs of discovery.
358
§ 31.22 Exchange of witness lists, state- to appear and any documents the wit-
ments, and exhibits. ness is to produce.
(a) At least 15 days before the hear- (e) The party seeking the subpoena
ing or at such other time as may be or- shall serve it in the manner prescribed
dered by the ALJ, the parties shall ex- in § 31.8. A subpoena on a party or upon
change witness lists, copies of prior an individual under the control of
statements of proposed witnesses, and party may be served by first class mail.
copies of proposed hearing exhibits, in- (f) A party or the individual to whom
cluding copies of any written state- the subpoena is directed may file a mo-
ments that the party intends to offer tion to quash the subpoena within ten
in lieu of live testimony in accordance days after service or on or before the
with § 31.33(b). At the time the above time specified in the subpoena for com-
documents are exchanged, any party pliance if it is less than ten days after
that intends to rely on the transcript service. If the ALJ has not acted on
of deposition testimony in lieu of live such a motion by the return date, such
testimony at the hearing, if permitted date shall be suspended pending the
by the ALJ, shall provide each party ALJ’s final action on the motion.
with a copy of the specific pages of the
transcript it intends to introduce into § 31.24 Protective order.
evidence. (a) A party or a prospective witness
(b) If a party objects, the ALJ shall or deponent may file a motion for a
not admit into evidence the testimony protective order with respect to dis-
of any witness whose name does not ap- covery sought by an opposing party or
pear on the witness list of any exhibit with respect to the hearing, seeking to
not provided to the opposing party as limit the availability or disclosure of
provided above unless the ALJ finds evidence.
good cause for the failure or that there (b) In issuing a protective order, the
is no prejudice to the objecting party. ALJ may make any order which justice
(c) Unless another party objects requires to protect a party or person
within the time set by the ALJ, docu- from annoyance, embarrassment, op-
ments exchanged in accordance with pression, or undue burden or expense,
paragraph (a) of this section shall be including one or more of the following:
deemed to be authentic for the purpose (1) That the discovery not be had;
of admissibility at the hearing.
(2) That the discovery may be had
§ 31.23 Subpoenas for attendance at only on specified terms and conditions,
hearing. including a designation of the time or
place;
(a) A party wishing to procure the
appearance and testimony of any indi- (3) That the discovery may be had
vidual at the hearing may request that only through a method of discovery
the ALJ issue a subpoena. other than that requested;
(b) A subpoena requiring the attend- (4) That certain matters not be in-
ance and testimony of an individual quired into, or that the scope of dis-
may also require the individual to covery be limited to certain matters;
produce documents at the hearing. (5) That discovery be conducted with
(c) A party seeking a subpoena shall no one present except persons des-
file a written request therefor not less ignated by the ALJ;
than 15 days before the date fixed for (6) That the contents of discovery or
the hearing unless otherwise allowed evidence be sealed;
by the ALJ for good cause shown. Such (7) That a deposition after being
request shall be accompanied by a pro- sealed be opened only by order of the
posed subpoena, which shall specify ALJ;
and documents to be produced and (8) That a trade secret or other con-
shall designate the witnesses and de- fidential research, development, com-
scribe the address and location thereof mercial information, or facts per-
with sufficient particularity to permit taining to any criminal investigation,
such witnesses to be found. proceeding, or other administrative in-
(d) The subpoena shall specify the vestigation not be disclosed or be dis-
time and place at which the witness is closed only in a designated way; or
359
(9) That the parties simultaneously ing a copy of the document in the
submit to the ALJ specified documents United States mail, postage prepaid
or information enclosed in sealed enve- and addressed, to the party’s last
lopes to be opened as directed by the known address. When a party is rep-
ALJ. resented by a representative, service
shall be made upon such representative
§ 31.25 Fees. in lieu of the actual party.
The party requesting a subpoena (c) Proof of service. A certificate of
shall pay the cost of the fees and mile- the individual serving the document by
age of any witness subpoenaed in the personal delivery or by mail, setting
amounts that would be payable to a forth the manner of service, shall be
witness in a proceeding in United proof of service.
States District Court. A check for wit-
ness fees and mileage shall accompany [53 FR 881, Jan. 14, 1988, as amended at 73 FR
33329, June 12, 2008]
the subpoena when served, except that
when a subpoena is issued on behalf of § 31.27 Computation of time.
the authority, a check for witness fees
and mileage need not accompany the (a) In computing any period of time
subpoena. under this part or in an order issued
thereunder, the time begins with the
§ 31.26 Filing, form, and service of pa- day following the act, event, or default,
pers. and includes the last day of the period,
(a) Filing and form. (1) A party filing unless it is a Saturday, Sunday, or
any document under this part shall legal holiday observed by the Federal
submit (i) the original and two copies government, in which event it includes
to the Docket Operation Services, De- the next business day.
partment of Transportation, 1200 New (b) When the period of time allowed
Jersey Avenue, SE., Washington, DC is less than seven days, intermediate
20590; and (ii) two copies simulta- Saturdays, Sundays, and legal holidays
neously to the ALJ or, if on appeal, to observed by the Federal government
the authority head. The requirements shall be excluded from the computa-
of this paragraph apply to all filings tion.
under this part, regardless of whether (c) Where a document has been served
there is a cross-reference to § 31.26. or issued by placing it in the United
(2) Every pleading and paper filed in States mail, an additional five days
the proceeding shall contain a caption will be added to the time permitted for
setting forth the title of the action, the any responses.
case number assigned by the Docket
Clerk, and a designation of the paper § 31.28 Motions.
(e.g., motion to quash subpoena).
(3) Every pleading and paper shall be (a) Any application to the ALJ for an
signed by, and shall contain the ad- order or ruling shall be by motion. Mo-
dress and telephone nunber of, the tions shall state the relief sought, the
party or the person on whose behalf the authority relied upon, and the facts al-
paper was filed, or his or her represent- leged, and shall be filed and served on
ative. all other parties.
(4) Papers are considered filed when (b) Except for motions made during a
they are mailed. Date of mailing may prehearing conference or at the hear-
be established by a certificate from the ing, all motions shall be in writing.
party or its representative or by proof The ALJ may require that oral mo-
that the document was sent by cer- tions be reduced to writing.
tified or registered mail. (c) Within 15 days after a written mo-
(b) Service. A party filing a document tion is served, or such other time as
shall, at the time of filing, serve a copy may be fixed by the ALJ, any party
of such document on every other party. may file a response to such motion.
Service upon any party of any docu- (d) The ALJ may not grant a written
ment other than those required to be motion before the time for filing re-
served as prescribed in § 31.8 shall be sponse thereto has expired, except upon
made by delivering a copy, or by plac- consent of the parties or following a
360
hearing on the motion, but may over- other document which is not filed in a
rule or deny such motion without timely fashion.
awaiting a response.
(e) The ALJ shall make a reasonable § 31.30 The hearing and burden of
effort to dispose of all outstanding mo- proof.
tions prior to the beginning of the (a) The ALJ shall conduct a hearing
hearing. on the record in order to determine
(f) Except as provided by §§ 31.21(e)(3) whether the defendant is liable for a
and 31.23(f), which concern subpoenas, civil penalty or assessment under § 31.3
the filing or pendency of a motion shall and, if so, the appropriate amount of
not automatically alter or extend a any such civil penalty or assessment
deadline or return date. considering any aggravating or miti-
gating factors.
§ 31.29 Sanctions. (b) The authority shall prove
(a) The ALJ may sanction a person, defendent’s liability and any aggra-
including any party or representative, vating factors by a preponderance of
for— the evidence.
(1) Failing to comply with an order, (c) The defendant shall prove any af-
rule, or procedure governing the pro- firmative defenses and any mitigating
ceeding; factors by a preponderance of the evi-
(2) Failing to prosecute or defend an dence.
action; or (d) The hearing shall be open to the
(3) Engaging in other misconduct public unless otherwise ordered by the
that interferes with the speedy, or- ALJ for good cause shown.
derly, or fair conduct of the hearing.
(b) Sanctions include but are not lim- § 31.31 Determining the amount of
ited to those specifically set forth in penalties and assessments.
paragraph (c), (d), and (e) of this sec- (a) In determining an appropriate
tion. Any such sanction shall reason- amount of civil penalties and assess-
ably relate to the severity and nature ments, the ALJ and the authority
of the failure or misconduct. head, upon appeal, should evaluate any
(c) When a party fails to comply with circumstances that mitigate or aggra-
an order, including an order for taking vate the violation and should articu-
a deposition, the production of evi- late in their opinions the reasons that
dence within the party’s control, or a support the penalties and assessments
request for admission, the ALJ may— they impose. Because of the intangible
(1) Draw an inference in favor of the costs of fraud, the expense of inves-
requesting party with regard to the in- tigating such conduct, and the need to
formation sought; deter others who might be similarly
(2) In the case of requests for admis- tempted, ordinarily double damages
sion, deem each matter of which an ad- and a significant civil penalty should
mission is requested to be admitted; be imposed.
(3) Prohibit the party failing to com- (b) Although not exhaustive, the fol-
ply with such order from introducing lowing factors are among those that
evidence concerning, or otherwise rely- may influence the ALJ and the author-
ing upon, testimony relating to the in- ity head in determining the amount of
formation sought; and penalties and assessments to impose
(4) Strike any part of the pleadings with respect to the misconduct (i.e.,
or other submissions of the party fail- the false fictitious, of fraudulent
ing to comply with such request. claims or statements) charged in the
(d) If a party fails to prosecute or de- complaint:
fend an action under this part com- (1) The number of false, fictitious, or
menced by service of a notice of hear- fraudulent claims or statements;
ing, the ALJ may dismiss the action or (2) The time period over which such
may issue an initial decision imposi- claims or statements were made;
tion penalties and assessments. (3) The degree of the defendant’s cul-
(e) The ALJ may refuse to consider pability with respect to the mis-
any motion, request, response, brief or conduct;
361
(4) The amount of money or the value § 31.32 Location of hearing.

of the property, services, or benefit
(a) The hearing may be held—
falsely claimed;
(5) The value of the Government’s ac- (1) In any judicial district of the
tual loss as a result of the misconduct, United States in which the defendant
including foreseeable consequential resides or transacts business;
damages and the costs of investigation; (2) In any judicial district of the
(6) The relationship of the amount United States in which the claim or
imposed as civil penalties to the statement in issue was made; or
amount of the Government’s loss; (3) In such other place as may be
(7) The potential or actual impact of agreed upon by the defendant and the
the misconduct upon national defense, ALJ.
public health or safety, or public con- (b) Each party shall have the oppor-
fidence in the management of Govern- tunity to present written and oral ar-
ment programs and operations, includ- gument with respect to the location of
ing particularly the impact on the in- the hearing.
tended beneficiaries of such programs; (c) The hearing shall be held at the
(8) Whether the defendant has en- place and at the time ordered by the
gaged in a pattern of the same or simi- ALJ.
lar misconduct;
(9) Whether the defendant attempted § 31.33 Witnesses.
to conceal the misconduct;
(10) The degree to which the defend- (a) Except as provided in paragraph
ant has involved others in the mis- (b) of this section, testimony at the
conduct or in concealing it; hearing shall be given orally by wit-
(11) Where the misconduct of employ- nesses under oath or affirmation.
ees or agents is imputed to the defend- (b) At the discretion of the ALJ, tes-
ant, the extent to which the defend- timony may be admitted in the form of
ant’s practices fostered or attempted a written statement or deposition. Any
to preclude such misconduct; such written statement must be pro-
(12) Whether the defendant cooper- vided to all other parties along with
ated in or obstructed an investigation the last known address of such witness,
of the misconduct; in a manner which allows sufficient
(13) Whether the defendant assisted time for other parties to subpoena such
in identifying and prosecuting other witness for cross-examination at the
wrongdoers; hearing. Prior written statements of
(14) The complexity of the program witnesses proposed to testify at the
or transaction, and the degree of the hearing and deposition transcripts
defendant’s sophistication with respect shall be exchanged as provided in
to it, including the extent of the de- § 31.22(a).
fendant’s prior participation in the (c) The ALJ shall exercise reasonable
program or in similar transactions; control over the mode and order of in-
(15) Whether the defendant has been terrogating witnesses and presenting
found, in any criminal, civil, or admin-
evidence so as to (1) make the interro-
istrative proceeding to have engaged in
gation and presentation effective for
similar misconduct or to have dealt
the ascertainment of the truth, (2)
dishonestly with the Government of
avoid needless consumption of time,
the United States or of a State, di-
rectly or indirectly; and and (3) protect witnesses from harass-
(16) The need to deter the defendant ment or undue embarrassment.
and others from engaging in the same (d) The ALJ shall permit the parties
or similar misconduct. to conduct such cross-examination as
(c) Nothing in this section shall be may be required for a full and true dis-
construed to limit the ALJ or the au- closure of the facts.
thority head from considering any (e) At the discretion of the ALJ, a
other factors that in any given case witness may be cross-examined on mat-
may mitigate or aggravate the offense ters relevant to the proceeding without
for which penalties and assessments regard to the scope of his or her direct
are imposed. examination. To the extent permitted
362
by the ALJ, cross-examination on mat- § 31.35 The record.

ters outside the scope of direct exam-
(a) The hearing will be recorded and
ination shall be conducted in the man-
transcribed. Transcripts may be ob-
ner of direct examination and may pro-
tained following the hearing from the
ceed by leading questions only if the
ALJ at a cost not to exceed the actual
witness is a hostile witness, an adverse
cost of duplication.
party, or a witness identified with an
(b) The transcript of testimony, ex-
adverse party.
hibits and other evidence admitted at
(f) Upon motion of any party, the
the hearing, and all papers and re-
ALJ shall order witnesses excluded so
quests filed in the proceeding con-
that they cannot hear the testimony of
stitute the record for the decision by
other witnesses. This rule does not au-
the ALJ and the authority head.
thorize exclusion of—
(1) A party who is an individual; (c) The record may be inspected at
(2) In the case of a party that is not the offices of the Docket Clerk (see
an individual, an officer or employee of § 31.26(a)(1) for address) and copied
the party (i) appearing for the entity (upon payment of a reasonable fee) by
pro se or (ii) designated by the party’s anyone, unless otherwise ordered by
representative; or the ALJ pursuant to § 31.24.
(3) An individual whose presence is § 31.36 Post-hearing briefs.
shown by a party to be essential to the
presentation of its case, including an The ALJ may require the parties to
individual employed by the Govern- file post-hearing briefs. In any event,
ment engaged in assisting the rep- any party may file a post-hearing brief.
resentative for the Government. The ALJ shall fix the time for filing
such briefs. Such briefs may be accom-
§ 31.34 Evidence. panied by proposed findings of fact and
(a) The ALJ shall determine the ad- conclusions of law. The ALJ may per-
missibility of evidence. mit the parties to file reply briefs.
(b) Except as provided in this part,
§ 31.37 Initial decision.
the ALJ shall not be bound by the Fed-
eral Rules of Evidence. However, the (a) The ALJ shall issue an initial de-
ALJ may apply the Federal Rules of cision based only on the record, which
Evidence where appropriate, e.g., to ex- shall contain findings of fact, conclu-
clude unreliable evidence. sions of law, and the amount of any
(c) The ALJ shall exclude irrelevant penalties and assessments imposed.
and immaterial evidence. (b) The findings of fact shall include
(d) Although relevant, evidence may a finding on each of the following
be excluded if its probative value is issues:
substantially outweighed by the danger (1) Whether the claims or statements
of unfair prejudice, confusion of the identified in the complaint, or any por-
issues, or by considerations of undue tions thereof, violate § 31.3;
delay or needless presentation of cumu- (2) If the person is liable for penalties
lative evidence. or assessments, the appropriate
(e) Although relevant, evidence may amount of any such penalties or assess-
be excluded if it is privileged under ments considering any mitigating or
Federal law. aggravating factors that he or she finds
(f) Evidence concerning offers of com- in the case, such as those described in
promise or settlement shall be inad- § 31.31.
missible to the extent provided in Rule (c) The ALJ shall promptly serve the
408 of the Federal Rules of Evidence. intitial decision on all parties within 90
(g) The ALJ shall permit the parties days after the time for submission of
to introduce rebuttal witnesses and post-hearing briefs and reply briefs (if
evidence. permitted) has expired. The ALJ shall
(h) All documents and other evidence at the same time serve all parties with
offered or taken for the record shall be a statement describing the right of any
open to examination by all parties, un- defendant determined to be liable for a
less otherwise ordered by the ALJ pur- civil penalty or assessment to file a
suant to § 31.24. motion for reconsideration with the
363
ALJ or a notice of appeal with the au- § 31.39 Appeal to authority head.
thority head. If the ALJ fails to meet (a) Any defendant who has served a
the deadline contained in this para- timely answer and who is determined
graph, he or she shall notify the parties in an initial decision to be liable for a
of the reason for the delay and shall set civil penalty or assessment may appeal
a new deadline. such decision to the authority head by
(d) Unless the initial decision of the filing a notice of appeal in accordance
ALJ is timely appealed to the author- with this section and § 31.26.
ity head, or a motion for reconsider- (b)(1) A notice of appeal may be filed
ation of the intitial decision is timely at any time within 30 days after the
filed, the initial decision shall con- ALJ issues an initial decision. How-
stitute the final decision of the author- ever, if another party files a motion for
ity head and shall be final and binding reconsideration under § 31.38, consider-
on the parties 30 days after it is issued ation of the appeal shall be stayed
by the ALJ. automatically pending resolution of
the motion for reconsideration.
§ 31.38 Reconsideration of initial deci- (2) If a motion for reconsideration is
sion. timely filed, a notice of appeal may be
filed within 30 days after the ALJ de-
(a) Except as provided in paragraph
nies the motion or issues a revised ini-
(d) of this section, any party may file a tial decision, whichever applies.
motion for reconsideration of the ini- (3) The authority head may extend
tial decision within 20 days of receipt the initial 30-day period for an addi-
of the initial decision. If service was tional 30 days if the defendant files
made by mail, receipt will be presumed with the authority head a request for
to be five days from the date of mailing an extension within the initial 30-day
in the absence of contrary proof. period and shows good cause.
(b) Every such motion must set forth (c) If the defendant files a timely no-
the matters claimed to have been erro- tice of appeal and the time for filing
neously decided and the nature of the motions for reconsideration under
alleged errors. Such motion shall be § 31.38 has expired, the Docket Clerk
accompanied by a supporting brief. shall forward two copies of the notice
(c) Responses to such motions shall of appeal to the authority head, and
be allowed only upon request of the shall forward or make available the
ALJ. record of the proceeding to the author-
(d) No party may file a motion for re- ity head.
consideration of an initial decision (d) A notice of appeal shall be accom-
that has been revised in response to a panied by a written brief specifying ex-
previous motion for reconsideration. ceptions to the initial decision and rea-
(e) The ALJ may dispose of a motion sons supporting the exceptions.
for reconsideration by denying it or by (e) The representative for the Gov-
issuing a revised initial decision. ernment may file a brief in opposition
to exceptions within 30 days of receiv-
(f) If the ALJ denies a motion for re-
ing the notice of appeal and accom-
consideration, the initial decision shall
panying brief.
constitute the final decision of the au- (f) There is no right to appear person-
thority head and shall be final and ally before the authority head.
binding on the parties 30 days after the (g) There is no right to appeal any in-
ALJ denies the motion, unless the ini- terlocutory ruling by the ALJ.
tial decision is timely appealed to the (h) In reviewing the initial decision,
authority head in accordance with the authority head shall not consider
§ 31.39. any objection that was not raised be-
(g) If the ALJ issues a revised initial fore the ALJ unless a demonstration is
decision, that decision shall constitute made of extraordinary circumstances
the final decision of the authority head causing the failure to raise the objec-
and shall be final and binding on the tion.
parties 30 days after it is issued, unless (i) If any party demonstrates to the
it is timely appealed to the authority satisfaction of the authority head that

head in accordance with § 31.39. additional evidence not presented at
364
such hearing is material and that there appropriate United States District
were reasonable grounds for the failure Court of a final decision of the author-
to present such evidence at such hear- ity head imposing penalties or assess-
ing, the authority head shall remand ments under this part and specifies the
the matter to the ALJ for consider- procedures for such review.
ation of such additional evidence.
(j) The authority head may affirm, § 31.43 Collection of civil penalties and
reduce, reverse, compromise, remand, assessments.
or settle any penalty or assessment de- Sections 3806 and 3808(b) of title 31,
termined by the ALJ in any initial de- United States Code, authorize actions
cision. for collection of civil penalties and as-
(k) The authority head shall prompt- sessments imposed under this part and
ly serve each party to the appeal with specify the procedures for such actions.
a copy of the decision of the authority
head and with a statement describing § 31.44 Right to administrative offset.
the right of any person determined to
The amount of any penalty or assess-
be liable for a penalty or assessment to
ment which has become final, or for
seek judicial review.
which a judgment has been entered
(l) Unless a petition for review is
under § 31.42 or § 31.43, or any amount
filed as provided in 31 U.S.C. 3805 after
agreed upon in a compromise or settle-
a defendant has exhausted all adminis-
ment under § 31.46, may be collected by
trative remedies under this part and
administrative offset under 31 U.S.C.
within 60 days after the date on which
3716, except that an administrative off-
the authority head serves the defend-
set may not be made under this sub-
ant with a copy of the authority head’s
section against a refund of an overpay-
decision, a determination that a de-
ment of Federal taxes, then or later
fendant is liable under § 31.3 is final and
owing by the United States to the de-
is not subject to judicial review.
fendant.
§ 31.40 Stays ordered by the Depart-
ment of Justice. § 31.45 Deposit in Treasury of United
States.
If at any time the Attorney General
or an Assistant Attorney General des- All amounts collected pursuant to
ignated by the Attorney General trans- this part shall be deposited as miscella-
mits to the authority head a written neous receipts in the Treasury of the
finding that continuation of the admin- United States, except as provided in 31
istrative process described in this part U.S.C. 3806(g).
with respect to a claim or statement
§ 31.46 Compromise or settlement.
may adversely affect any pending or
potential criminal or civil action re- (a) Parties may make offers of com-
lated to such claim or statement, the promise or settlement at any time.
authority head shall stay the process (b) The reviewing official has the ex-
immediately. The authority head may clusive authority to compromise or
order the process resumed only upon settle a case under this part at any
receipt of the written authorization of time after the date on which the re-
the Attorney General. viewing official is permitted to issue a
complaint and before the date on which
§ 31.41 Stay pending appeal. the ALJ issues an initial decision.
(a) An initial decision is stayed auto- (c) The authority head has exclusive
matically pending disposition of a mo- authority to compromise or settle a
tion for reconsideration or of an appeal case under this part at any time after
to the authority head. the date on which the ALJ issues an
(b) No administrative stay is avail- initial decision, except during the
able following a final decision of the pendency of any review under § 31.42 or
authority head. during the pendency of any action to
collect penalties and assessments
§ 31.42 Judicial review. under § 31.43.
Section 3805 of title 31, United States (d) The Attorney General has exclu-
Code, authorizes judicial review by an sive authority to compromise or settle
365
a case under this part during the pend- Subpart C—Requirements for Recipients
ency of any review under § 31.42 or of Who Are Individuals
any action to recover penalties and as-
32.300 What must I do to comply with this
sessments under 31 U.S.C. 3806.
part if I am an individual recipient?
(e) The investigating official may 32.301 [Reserved]
recommend settlement terms to the re-
viewing official, the authority head, or Subpart D—Responsibilities of DOT
the Attorney General, as appropriate. Awarding Officials
The reviewing official may recommend
settlement terms to the authority 32.400 What are my responsibilities as a
head, or the Attorney General, as ap- DOT awarding official?
propriate. Subpart E—Violations of This Part and
(f) Any compromise or settlement Consequences
must be in writing.
32.500 How are violations of this part deter-
§ 31.47 Limitations. mined for recipients other than individ-
(a) The notice of hearing with respect uals?
32.505 How are violations of this part deter-
to a claim or statement must be served
mined for recipients who are individuals?
in the manner specified in § 31.8 within 32.510 What actions will the Federal Gov-
6 years after the date on which such ernment take against a recipient deter-
claim or statement is made. mined to have violated this part?
(b) If the defendant fails to serve a 32.515 Are there any exceptions to those ac-
timely answer, service of a notice tions?
under § 31.10(b) shall be deemed a notice
of hearing for purposes of this section. Subpart F—Definitions
(c) The statute of limitations may be 32.605 Award.
extended by agreement of the parties. 32.610 Controlled substance.
32.615 Conviction.
PART 32—GOVERNMENTWIDE RE- 32.620 Cooperative agreement.
32.625 Criminal drug statute.
QUIREMENTS FOR DRUG-FREE 32.630 Debarment.
WORKPLACE (FINANCIAL ASSIST- 32.635 Drug-free workplace.
ANCE) 32.640 Employee.
32.645 Federal agency or agency.
Subpart A—Purpose and Coverage 32.650 Grant.
32.655 Individual.
Sec. 32.660 Recipient.
32.100 What does this part do? 32.665 State.
32.105 Does this part apply to me? 32.670 Suspension.
32.110 Are any of my Federal assistance
AUTHORITY: 41 U.S.C. 701 et seq.
awards exempt from this part?
32.115 Does this part affect the Federal con- SOURCE: 68 FR 66645, Nov. 26, 2003, unless
tracts that I receive? otherwise noted.
Subpart B—Requirements for Recipients

Other Than Individuals
Subpart A—Purpose and
Coverage
32.200 What must I do to comply with this
part? § 32.100 What does this part do?
32.205 What must I include in my drug-free
This part carries out the portion of
workplace statement?
32.210 To whom must I distribute my drug- the Drug-Free Workplace Act of 1988
free workplace statement? (41 U.S.C. 701 et seq., as amended) that
32.215 What must I include in my drug-free applies to grants. It also applies the
awareness program? provisions of the Act to cooperative
32.220 By when must I publish my drug-free agreements and other financial assist-
workplace statement and establish my ance awards, as a matter of Federal
drug-free awareness program? Government policy.
32.225 What actions must I take concerning
employees who are convicted of drug vio- § 32.105 Does this part apply to me?
lations in the workplace?

32.230 How and when must I identify work- (a) Portions of this part apply to you
places? if you are either—
366
(1) A recipient of an assistance award (1) Publish a drug-free workplace

from the Department of Transpor- statement and establish a drug-free
tation; or awareness program for your employees
(2) A(n) DOT awarding official. (See (see §§ 32.205 through 32.220); and
definitions of award and recipient in (2) Take actions concerning employ-
§§ 32.605 and 32.660, respectively.) ees who are convicted of violating drug
(b) The following table shows the statutes in the workplace (see § 32.225).
subparts that apply to you: (b) Second, you must identify all
If you are . . . see subparts . . . known workplaces under your Federal
awards (see § 32.230).
(1) A recipient who is not an individual A, B and E.
(2) A recipient who is an individual ....... A, C and E.
(3) A(n) DOT awarding official ............... A, D and E. § 32.205 What must I include in my
drug-free workplace statement?
§ 32.110 Are any of my Federal assist- You must publish a statement that—
ance awards exempt from this part? (a) Tells your employees that the un-
This part does not apply to any lawful manufacture, distribution, dis-
award that the Secretary of Transpor- pensing, possession, or use of a con-
tation determines that the application trolled substance is prohibited in your
of this part would be inconsistent with workplace;
the international obligations of the (b) Specifies the actions that you will
United States or the laws or regula- take against employees for violating
tions of a foreign government. that prohibition; and
(c) Lets each employee know that, as
§ 32.115 Does this part affect the Fed- a condition of employment under any
eral contracts that I receive?
award, he or she:
It will affect future contract awards (1) Will abide by the terms of the
indirectly if you are debarred or sus- statement; and
pended for a violation of the require- (2) Must notify you in writing if he or
ments of this part, as described in she is convicted for a violation of a
§ 32.510(c). However, this part does not criminal drug statute occurring in the
apply directly to procurement con- workplace and must do so no more
tracts. The portion of the Drug-Free than five calendar days after the con-
Workplace Act of 1988 that applies to viction.
Federal procurement contracts is car-
ried out through the Federal Acquisi- § 32.210 To whom must I distribute my
tion Regulation in chapter 1 of Title 48 drug-free workplace statement?
of the Code of Federal Regulations (the
drug-free workplace coverage currently You must require that a copy of the
is in 48 CFR part 23, subpart 23.5). statement described in § 32.205 be given
to each employee who will be engaged
in the performance of any Federal
Subpart B—Requirements for award.
Recipients Other Than Individuals
§ 32.215 What must I include in my
§ 32.200 What must I do to comply with drug-free awareness program?
this part?
There are two general requirements You must establish an ongoing drug-
if you are a recipient other than an in- free awareness program to inform em-
dividual. ployees about—
(a) First, you must make a good faith (a) The dangers of drug abuse in the
effort, on a continuing basis, to main- workplace;
tain a drug-free workplace. You must (b) Your policy of maintaining a
agree to do so as a condition for receiv- drug-free workplace;
ing any award covered by this part. (c) Any available drug counseling, re-
The specific measures that you must habilitation, and employee assistance
take in this regard are described in programs; and
more detail in subsequent sections of (d) The penalties that you may im-
this subpart. Briefly, those measures pose upon them for drug abuse viola-
are to— tions occurring in the workplace.
367
§ 32.220 By when must I publish my (1) Take appropriate personnel action

drug-free workplace statement and against the employee, up to and includ-
establish my drug-free awareness ing termination, consistent with the
program? requirements of the Rehabilitation Act
If you are a new recipient that does of 1973 (29 U.S.C. 794), as amended; or
not already have a policy statement as (2) Require the employee to partici-
described in § 32.205 and an ongoing pate satisfactorily in a drug abuse as-
awareness program as described in sistance or rehabilitation program ap-
§ 32.215, you must publish the state- proved for these purposes by a Federal,
ment and establish the program by the State or local health, law enforcement,
time given in the following table: or other appropriate agency.
If . . . then you . . . § 32.230 How and when must I identify
workplaces?
(a) The performance period must have the policy state-
of the award is less than ment and program in place (a) You must identify all known
30 days. as soon as possible, but workplaces under each DOT award. A
before the date on which
performance is expected to failure to do so is a violation of your
be completed. drug-free workplace requirements. You
(b) The performance period must have the policy state- may identify the workplaces—
of the award is 30 days or ment and program in place
more. within 30 days after award.
(1) To the DOT official that is mak-
(c) You believe there are ex- may ask the DOT awarding ing the award, either at the time of ap-
traordinary circumstances official to give you more plication or upon award; or
that will require more than time to do so. The amount
30 days for you to publish of additional time, if any, to
(2) In documents that you keep on
the policy statement and be given is at the discretion file in your offices during the perform-
establish the awareness of the awarding official. ance of the award, in which case you
program. must make the information available
for inspection upon request by DOT of-
§ 32.225 What actions must I take con- ficials or their designated representa-
cerning employees who are con- tives.
victed of drug violations in the (b) Your workplace identification for
workplace? an award must include the actual ad-
There are two actions you must take dress of buildings (or parts of build-
if an employee is convicted of a drug ings) or other sites where work under
violation in the workplace: the award takes place. Categorical de-
(a) First, you must notify Federal scriptions may be used (e.g., all vehi-
agencies if an employee who is engaged cles of a mass transit authority or
in the performance of an award informs State highway department while in op-
you about a conviction, as required by eration, State employees in each local
§ 32.205(c)(2), or you otherwise learn of unemployment office, performers in
the conviction. Your notification to concert halls or radio studios).
the Federal agencies must— (c) If you identified workplaces to
(1) Be in writing; the DOT awarding official at the time
(2) Include the employee’s position of application or award, as described in
title; paragraph (a)(1) of this section, and
(3) Include the identification num- any workplace that you identified
ber(s) of each affected award; changes during the performance of the
(4) Be sent within ten calendar days award, you must inform the DOT
after you learn of the conviction; and awarding official.
(5) Be sent to every Federal agency
on whose award the convicted em- Subpart C—Requirements for
ployee was working. It must be sent to Recipients Who Are Individuals
every awarding official or his or her of-
ficial designee, unless the Federal § 32.300 What must I do to comply with
agency has specified a central point for this part if I am an individual re-
the receipt of the notices. cipient?
(b) Second, within 30 calendar days of As a condition of receiving a(n) DOT
learning about an employee’s convic- award, if you are an individual recipi-

tion, you must either— ent, you must agree that—
368
(a) You will not engage in the unlaw- § 32.505 How are violations of this part
ful manufacture, distribution, dis- determined for recipients who are
pensing, possession, or use of a con- individuals?
trolled substance in conducting any ac- An individual recipient is in viola-
tivity related to the award; and tion of the requirements of this part if
(b) If you are convicted of a criminal the Secretary of Transportation deter-
drug offense resulting from a violation mines, in writing, that—
occurring during the conduct of any (a) The recipient has violated the re-
award activity, you will report the con- quirements of subpart C of this part; or
viction: (b) The recipient is convicted of a
(1) In writing. criminal drug offense resulting from a
(2) Within 10 calendar days of the violation occurring during the conduct
conviction. of any award activity.
(3) To the DOT awarding official or
§ 32.510 What actions will the Federal
other designee for each award that you Government take against a recipi-
currently have, unless § 32.301 or the ent determined to have violated
award document designates a central this part?
point for the receipt of the notices. If a recipient is determined to have
When notice is made to a central point, violated this part, as described in
it must include the identification num- § 32.500 or § 32.505, the Department of
ber(s) of each affected award. Transportation may take one or more
of the following actions—
§ 32.301 [Reserved]
(a) Suspension of payments under the
award;
Subpart D—Responsibilities of DOT (b) Suspension or termination of the
Awarding Officials award; and
(c) Suspension or debarment of the
§ 32.400 What are my responsibilities recipient under 49 CFR part 29, for a
as a(n) DOT awarding official? period not to exceed five years.
As a(n) DOT awarding official, you
§ 32.515 Are there any exceptions to
must obtain each recipient’s agree- those actions?
ment, as a condition of the award, to
comply with the requirements in— The Secretary of Transportation may
(a) Subpart B of this part, if the re- waive with respect to a particular
cipient is not an individual; or award, in writing, a suspension of pay-
ments under an award, suspension or
(b) Subpart C of this part, if the re-
termination of an award, or suspension
cipient is an individual.
or debarment of a recipient if the Sec-
retary of Transportation determines
Subpart E—Violations of this Part that such a waiver would be in the pub-
and Consequences lic interest. This exception authority
cannot be delegated to any other offi-
§ 32.500 How are violations of this part cial.
determined for recipients other
than individuals?
Subpart F—Definitions
A recipient other than an individual
is in violation of the requirements of § 32.605 Award.
this part if the Secretary of Transpor- Award means an award of financial
tation determines, in writing, that— assistance by the Department of Trans-
(a) The recipient has violated the re- portation or other Federal agency di-
quirements of subpart B of this part; or rectly to a recipient.
(b) The number of convictions of the (a) The term award includes:
recipient’s employees for violating (1) A Federal grant or cooperative
criminal drug statutes in the work- agreement, in the form of money or
place is large enough to indicate that property in lieu of money.
the recipient has failed to make a good (2) A block grant or a grant in an en-
faith effort to provide a drug-free titlement program, whether or not the

workplace. grant is exempted from coverage under
369
the Governmentwide rule 49 CFR part § 32.630 Debarment.

18 that implements OMB Circular A–102
Debarment means an action taken by
(for availability, see 5 CFR 1310.3) and
a Federal agency to prohibit a recipi-
specifies uniform administrative re-
quirements. ent from participating in Federal Gov-
ernment procurement contracts and
(b) The term award does not include:
covered nonprocurement transactions.
(1) Technical assistance that provides
A recipient so prohibited is debarred,
services instead of money.
in accordance with the Federal Acqui-
(2) Loans.
sition Regulation for procurement con-
(3) Loan guarantees. tracts (48 CFR part 9, subpart 9.4) and
(4) Interest subsidies. the common rule, Government-wide
(5) Insurance. Debarment and Suspension (Non-
(6) Direct appropriations. procurement), that implements Execu-
(7) Veterans’ benefits to individuals tive Order 12549 and Executive Order
(i.e., any benefit to veterans, their fam- 12689.
ilies, or survivors by virtue of the serv-
ice of a veteran in the Armed Forces of § 32.635 Drug-free workplace.
the United States).
Drug-free workplace means a site for
§ 32.610 Controlled substance. the performance of work done in con-
nection with a specific award at which
Controlled substance means a con- employees of the recipient are prohib-
trolled substance in schedules I ited from engaging in the unlawful
through V of the Controlled Substances manufacture, distribution, dispensing,
Act (21 U.S.C. 812), and as further de- possession, or use of a controlled sub-
fined by regulation at 21 CFR 1308.11 stance.
through 1308.15.
§ 32.640 Employee.
§ 32.615 Conviction.
(a) Employee means the employee of a
Conviction means a finding of guilt recipient directly engaged in the per-
(including a plea of nolo contendere) or formance of work under the award, in-
imposition of sentence, or both, by any
cluding—
judicial body charged with the respon-
(1) All direct charge employees;
sibility to determine violations of the
Federal or State criminal drug stat- (2) All indirect charge employees, un-
utes. less their impact or involvement in the
performance of work under the award
§ 32.620 Cooperative agreement. is insignificant to the performance of
the award; and
Cooperative agreement means an award
of financial assistance that, consistent (3) Temporary personnel and consult-
with 31 U.S.C. 6305, is used to enter into ants who are directly engaged in the
the same kind of relationship as a performance of work under the award
grant (see definition of grant in and who are on the recipient’s payroll.
§ 32.650), except that substantial in- (b) This definition does not include
volvement is expected between the workers not on the payroll of the re-
Federal agency and the recipient when cipient (e.g., volunteers, even if used to
carrying out the activity contemplated meet a matching requirement; consult-
by the award. The term does not in- ants or independent contractors not on
clude cooperative research and devel- the payroll; or employees of subrecipi-
opment agreements as defined in 15 ents or subcontractors in covered
U.S.C. 3710a. workplaces).
§ 32.625 Criminal drug statute. § 32.645 Federal agency or agency.

Criminal drug statute means a Federal Federal agency or agency means any
or non-Federal criminal statute involv- United States executive department,
ing the manufacture, distribution, dis- military department, government cor-
pensing, use, or possession of any con- poration, government controlled cor-

trolled substance. poration, any other establishment in
370
the executive branch (including the Ex- 12689. Suspension of a recipient is a dis-
ecutive Office of the President), or any tinct and separate action from suspen-
independent regulatory agency. sion of an award or suspension of pay-
ments under an award.
§ 32.650 Grant.
Grant means an award of financial as- PART 33—TRANSPORTATION PRIOR-
sistance that, consistent with 31 U.S.C. ITIES AND ALLOCATION SYSTEM
6304, is used to enter into a relation-
ship— Subpart A—General
(a) The principal purpose of which is
to transfer a thing of value to the re- Sec.
cipient to carry out a public purpose of 33.1 Purpose of this part.
support or stimulation authorized by a 33.2 Priorities and allocations authority.
33.3 Program eligibility.
law of the United States, rather than
to acquire property or services for the Subpart B—Definitions
Federal Government’s direct benefit or
use; and 33.20 Definitions.
(b) In which substantial involvement
is not expected between the Federal Subpart C—Placement of Rated Orders
agency and the recipient when carrying 33.30 Delegation of authority.
out the activity contemplated by the 33.31 Priority ratings.
award. 33.32 Elements of a rated order.
33.33 Acceptance and rejection of rated or-
§ 32.655 Individual. ders.
33.34 Preferential scheduling.
Individual means a natural person.
33.35 Extension of priority ratings.
33.36 Changes or cancellations of priority
§ 32.660 Recipient.
ratings and rated orders.
Recipient means any individual, cor- 33.37 Use of rated orders.
poration, partnership, association, unit 33.38 Limitations on placing rated orders.
of government (except a Federal agen-
cy) or legal entity, however organized, Subpart D—Special Priorities Assistance
that receives an award directly from a 33.40 General provisions.
Federal agency. 33.41 Requests for priority rating authority.
33.42 Examples of assistance.
§ 32.665 State. 33.43 Criteria for assistance.
State means any of the States of the 33.44 Instances where assistance may not be
United States, the District of Colum- provided.
33.45 Assistance programs with other na-
bia, the Commonwealth of Puerto Rico, tions. [Reserved]
or any territory or possession of the
United States. Subpart E—Allocation Actions
§ 32.670 Suspension. 33.50 Policy.
33.51 General procedures.
Suspension means an action taken by
33.52 Controlling the general distribution of
a Federal agency that immediately a material in the civilian market.
prohibits a recipient from partici- 33.53 Types of allocation orders.
pating in Federal Government procure- 33.54 Elements of an allocation order.
ment contracts and covered non- 33.55 Mandatory acceptance of an allocation
procurement transactions for a tem- order.
porary period, pending completion of 33.56 Changes or cancellations of an alloca-
an investigation and any judicial or ad- tion order.
ministrative proceedings that may Subpart F—Official Actions
ensue. A recipient so prohibited is sus-
pended, in accordance with the Federal 33.60 General provisions.
Acquisition Regulation for procure- 33.61 Rating Authorizations.
ment contracts (48 CFR part 9, subpart 33.62 Directives.
9.4) and the common rule, Government- 33.63 Memoranda of Understanding.
wide Debarment and Suspension (Non-
Subpart G—Compliance
procurement), that implements Execu-
tive Order 12549 and Executive Order 33.70 General provisions.
371
33.71 Audits and investigations. facilities, livestock resources, veteri-
33.72 Compulsory process. nary resources, plant health resources,
33.73 Notification of failure to comply.
and the domestic distribution of farm
33.74 Violations, penalties, and remedies.
33.75 Compliance conflicts. equipment and commercial fertilizer;
(2) The Secretary of Energy with re-
Subpart H—Adjustments, Exceptions, and spect to all forms of energy;
Appeals (3) The Secretary of Health and
33.80 Adjustments or exceptions. Human Services with respect to health
33.81 Appeals. resources;
(4) The Secretary of Transportation
Subpart I—Miscellaneous Provisions with respect to all forms of civil trans-
33.90 Protection against claims. portation;
33.91 Records and reports. (5) The Secretary of Defense with re-
33.92 Applicability of this part and official spect to water resources; and
actions. (6) The Secretary of Commerce for all
33.93 Communications. other materials, services, and facili-
APPENDIX I TO PART 33—SAMPLE FORM OST F ties, including construction materials.
1254
SCHEDULE 1 TO PART 33—APPROVED PRO- (b) Section 202 of Executive Order
GRAMS 13603 states that the priorities and allo-
cations authority delegated in section
AUTHORITY: Defense Production Act of 1950,
as amended, 50 U.S.C. 82; 50 U.S.C. App. 201 of the order may be used only to
§§ 2061–2171; 50 U.S.C. App § 468; Executive support programs that have been deter-
Order 12742, (56 FR 1079, January 8, 1991); Ex- mined in writing as necessary or appro-
ecutive Order 13603, (77 FR 16651, March 16, priate to promote the national defense:
2012). (1) By the Secretary of Defense with
SOURCE: 77 FR 59801, Oct. 1, 2012, unless respect to military production and con-
otherwise noted. struction, military assistance to for-
eign nations, military use of civil
Subpart A—General transportation, stockpiles, managed by
the Department of Defense, space, and
§ 33.1 Purpose of this part. directly related activities;
This part provides guidance and pro- (2) By the Secretary of Energy with
cedures for use of the Defense Produc- respect to energy production and con-
tion Act priorities and allocations au- struction, distribution and use, and di-
thority with respect to all forms of rectly related activities; and
civil transportation. The guidance and (3) By the Secretary of Homeland Se-
procedures in this part are generally curity with respect to all other na-
consistent with the guidance and pro- tional defense programs, including
cedures provided in other regulations civil defense and continuity of Govern-
issued under EO 13603 authority. ment.
§ 33.2 Priorities and allocations au-
thority. § 33.3 Program eligibility.
(a) Section 201 of Executive Order Certain programs to promote the na-
13603 (77 FR 16651, March 16, 2012) dele- tional defense are eligible for priorities
gates the President’s authority under and allocations support. These include
section 101 of the Defense Production programs for military and energy pro-
Act to require acceptance and priority duction or construction, military or
performance of contracts and orders critical infrastructure assistance to
(other than contracts of employment) any foreign nation, homeland security,
to promote the national defense over stockpiling, space, and any directly re-
performance of any other contracts or lated activity. Other eligible programs
orders, and to allocate materials, serv- include emergency preparedness activi-
ices, and facilities as deemed necessary ties conducted pursuant to title VI of
or appropriate to promote the national the Robert T. Stafford Disaster Relief
defense to: and Emergency Assistance Act (42
(1) The Secretary of Agriculture with U.S.C. 5195 et seq.) and critical infra-
respect to food resources, food resource structure protection and restoration.
372
Subpart B—Definitions building, structure, or project. Con-

struction does not include maintenance
§ 33.20 Definitions. and repair.
The following definitions pertain to Critical infrastructure means any sys-
all sections of this part: tems and assets, whether physical or
Allocation means the control of the cyber-based, so vital to the United
distribution of materials, services, or States that the degradation or destruc-
facilities for a purpose deemed nection of such systems and assets would
essary or appropriate to promote the have a debilitating impact on national
national defense. security, including, but not limited to,
Allocation authority means the au- national economic security and na-
thority of the Department of Transpor- tional public health or safety.
tation, pursuant to section 101 of the Defense Production Act means the De-
Defense Production Act, to allocate fense Production Act of 1950, as amend-
materials, services, and facilities for ed (50 U.S.C. App. § 2061 et seq.).
use in approved programs. Delegate Agency means a government
Allocation order means an official ac- agency authorized by delegation from
tion to control the distribution of ma- the Department of Transportation to
terials, services, or facilities for a pur- place priority ratings on contracts or
pose deemed necessary or appropriate orders needed to support approved pro-
to promote the national defense. grams.
Allotment means an official action
Directive means an official action
that specifies the maximum quantity
that requires a person to take or re-
of a material, service, or facility au-
frain from taking certain actions in ac-
thorized for a specific use to promote
cordance with its provisions.
the national defense.
Approved program means a program Emergency preparedness means all
determined by the Secretary of De- those activities and measures designed
fense, the Secretary of Energy, or the or undertaken to prepare for or mini-
Secretary of Homeland Security to be mize the effects of a hazard upon the
necessary or appropriate to promote civilian population, to deal with the
the national defense, in accordance immediate emergency conditions
with section 202 of Executive Order which would be created by the hazard,
13603. and to effectuate emergency repairs to,
Civil transportation includes move- or the emergency restoration of, vital
ment of persons and property by all utilities and facilities destroyed or
modes of transportation in interstate, damaged by the hazard. Such term in-
intrastate, or foreign commerce within cludes the following:
the United States, its territories and (1) Measures to be undertaken in
possessions, and the District of Colum- preparation for anticipated hazards (in-
bia, and related public storage and cluding the establishment of appro-
warehousing, ports, services, equip- priate organizations, operational plans,
ment and facilities, such as transpor- and supporting agreements, the re-
tation carrier shop and repair facili- cruitment and training of personnel,
ties. ‘‘Civil transportation’’ also shall the conduct of research, the procure-
include direction, control, and coordi- ment and stockpiling of necessary ma-
nation of civil transportation capacity terials and supplies, the provision of
regardless of ownership. ‘‘Civil trans- suitable warning systems, the con-
portation’’ shall not include transpor- struction or preparation of shelters,
tation owned or controlled by the De- shelter areas, and control centers, and,
partment of Defense, use of petroleum when appropriate, the non-military
and gas pipelines, and coal slurry pipe- evacuation of the civilian population).
lines used only to supply energy pro- (2) Measures to be undertaken during
duction facilities directly. a hazard (including the enforcement of
Construction means the erection, ad- passive defense regulations prescribed
dition, extension, or alteration of any by duly established military or civil
building, structure, or project, using authorities, the evacuation of per-
materials or products which are to be sonnel to shelter areas, the control of

an integral and permanent part of the traffic and panic, and the control and
373
use of lighting and civil communica- material after it loses its identity as
tions). an agricultural commodity or agricul-
(3) Measures to be undertaken fol- tural product.
lowing a hazard (including activities Food resource facilities means plants,
for fire fighting, rescue, emergency machinery, vehicles (including on
medical, health and sanitation serv- farm), and other facilities required for
ices, monitoring for specific dangers of the production, processing, distribu-
special weapons, unexploded bomb re- tion, and storage (including cold stor-
connaissance, essential debris clear- age) of food resources, and for the do-
ance, emergency welfare measures, and mestic distribution of farm equipment
immediately essential emergency re- and fertilizer (excluding transportation
pair or restoration of damaged vital fa- thereof).
cilities). Hazard means an emergency or dis-
Energy means all forms of energy in- aster resulting from—
cluding petroleum, gas (both natural
(1) A natural disaster; or
and manufactured), electricity, solid
fuels (including all forms of coal, coke, (2) An accidental or man-caused
coal chemicals, coal liquification, and event.
coal gasification), solar, wind, other Health resources means drugs, biologi-
types of renewable energy, atomic en- cal products, medical devices, mate-
ergy, and the production, conservation, rials, facilities, health supplies, serv-
use, control, and distribution (includ- ices and equipment required to diag-
ing pipelines) of all of these forms of nose, mitigate or prevent the impair-
energy. ment of, improve, treat, cure, or re-
Facilities includes all types of build- store the physical or mental health
ings, structures, or other improve- conditions of the population.
ments to real property (but excluding Homeland security includes efforts—
farms, churches or other places of wor- (1) To prevent terrorist attacks with-
ship, and private dwelling houses), and in the United States;
services relating to the use of any such (2) To reduce the vulnerability of the
building, structure, or other improve- United States to terrorism;
ment. (3) To minimize damage from a ter-
Farm equipment means equipment, rorist attack in the United States; and
machinery, and repair parts manufac- (4) To recover from a terrorist attack
tured for use on farms in connection in the United States.
with the production or preparation for
Item means any raw, in process, or
market use of food resources.
manufactured material, article, com-
Fertilizer means any product or com-
modity, supply, equipment, component,
bination of products that contain one
accessory, part, assembly, or product
or more of the elements nitrogen, phos-
phorus, and potassium for use as a of any kind, technical information,
plant nutrient. process, or service.
Food resources means all commodities Local government means a county,
and products, (simple, mixed, or com- municipality, city, town, township,
pound), or complements to such com- local public authority (including any
modities or products, that are capable public and Indian housing agency
of being ingested by either human under the United States Housing Act of
beings or animals, irrespective of other 1937) school district, special district,
uses to which such commodities or intrastate district, council of govern-
products may be put, at all stages of ments (whether or not incorporated as
processing from the raw commodity to a nonprofit corporation under state
the products thereof in vendible form law), any other regional or interstate
for human or animal consumption. government entity, or any agency or
‘‘Food resources’’ also means potable instrumentality of a local government.
water packaged in commercially mar- Maintenance and repair and operating
ketable containers, all starches, sug- supplies or MRO—
ars, vegetable and animal or marine (1) ‘‘Maintenance’’ is the upkeep nec-
fats and oils, seed, cotton, hemp, and essary to continue any plant, facility,
flax fiber, but does not mean any such or equipment in working condition.
374
(2) ‘‘Repair’’ is the restoration of any Allotments, Planning Orders, Memo-

plant, facility, or equipment to work- randa of Understanding, Demands for
ing condition when it has been ren- Information, Inspection Authoriza-
dered unsafe or unfit for service by tions, and Administrative Subpoenas.
wear and tear, damage, or failure of Person includes an individual, cor-
parts. poration, partnership, association, or
(3) ‘‘Operating supplies’’ are any re- any other organized group of persons,
sources carried as operating supplies or legal successor or representative
according to a person’s established ac- thereof, or any State or local govern-
counting practice. Operating supplies ment or agency thereof.
may include hand tools and expendable Planning order means notification of
tools, jigs, dies, fixtures used on pro- tentative arrangements to meet na-
duction equipment, lubricants, clean- tional defense requirements issued in
ers, chemicals and other expendable priority order or allocation order for-
items. mat, for planning purposes only.
(4) MRO does not include items pro- Rated order means a prime contract, a
duced or obtained for sale to other per- subcontract, or a purchase order in
sons or for installation upon or attach- support of an approved program issued
ment to the property of another per- in accordance with the provisions of
son, or items required for the produc- this part.
tion of such items; items needed for the Resource agency means any agency
replacement of any plant, facility, or delegated priorities and allocations au-
equipment; or items for the improve- thority as specified in § 33.2.
ment of any plant, facility, or equip- Secretary means the Secretary of
ment by replacing items which are still Transportation.
in working condition with items of a
Selective Service Act refers to Section
new or different kind, quality, or de-
18 of the Selective Service Act of 1948
sign.
(50 U.S.C. App. § 468).
Materials includes—
Services includes any effort that is
(1) Any raw materials (including min-
needed for or incidental to—
erals, metals, and advanced processed
materials), commodities, articles, com- (1) The development, production,
ponents (including critical compo- processing, distribution, delivery, or
nents), products, and items of supply; use of an industrial resource or a crit-
and ical technology item;
(2) Any technical information or (2) The construction of facilities;
services ancillary to the use of any (3) The movement of individuals and
such materials, commodities, articles, property by all modes of civil transpor-
components, products, or items. tation; or
National defense means programs for (4) Other national defense programs
military and energy production or con- and activities.
struction, military or critical infra- Set-aside means an official action
structure assistance to any foreign na- that requires a person to reserve mate-
tion, homeland security, stockpiling, rials, services, or facilities capacity in
space, and any directly related activ- anticipation of the receipt of rated or-
ity. Such term includes emergency pre- ders.
paredness activities conducted pursu- Stafford Act means title VI (Emer-
ant to title VI of the Robert T. Staf- gency Preparedness) of the Robert T.
ford Disaster Relief and Emergency As- Stafford Disaster Relief and Emer-
sistance Act and critical infrastructure gency Assistance Act, as amended (42
protection and restoration. U.S.C. 5195–5197g).
Official action means an action taken State means any of the several States
by the Department of Transportation of the United States, the District of
or another resource agency under the Columbia, the Commonwealth of Puer-
authority of the Defense Production to Rico, any territory or possession of
Act, Executive Order 13603, and this the United States, or any agency or in-
part. Such actions include, but are not strumentality of a State exclusive of
limited to, the issuance of Rating Au- local governments. The term does not
thorizations, Directives, Set-Asides, include any public and Indian housing
375
agency under United States Housing (c) Priority ratings. A priority rating
Act of 1937. consists of the rating symbol—DO and
Water resources means all usable DX—and the program identification
water, from all sources, within the ju- symbol, such as DO–T1 or DX–T1 for a
risdiction of the United States, that priority rating under TPAS.
can be managed, controlled, and allo-
cated to meet emergency require- § 33.32 Elements of a rated order.
ments, except ‘‘water resources’’ does Each rated order must include:
not include usable water that qualifies (a) The appropriate priority rating
as ‘‘food resources.’’ (e.g. DO–T1 or DX–T1);
(b) A required delivery date or dates.
Subpart C—Placement of Rated The words ‘‘immediately’’ or ‘‘as soon
as possible’’ do not constitute a deliv-
Orders ery date. A ‘‘requirements contract,’’
§ 33.30 Delegation of authority. ‘‘basic ordering agreement,’’ ‘‘prime
vendor contract,’’ or similar procure-
The priorities and allocations au- ment document bearing a priority rat-
thorities of the President under title I ing may contain no specific delivery
of the Defense Production Act with re- date or dates and may provide for the
spect to all forms of civil transpor- furnishing of items or service from
tation have been delegated to the Sec- time-to-time or within a stated period
retary of Transportation under section against specific purchase orders, such
201(a)(4) of Executive Order 13603 of as ‘‘calls,’’ ‘‘requisitions,’’ and ‘‘deliv-
March 16, 2012 (77 FR 16651). ery orders.’’ These purchase orders
must specify a required delivery date
§ 33.31 Priority ratings.
or dates and are to be considered as
(a) Levels of priority. (1) There are two rated as of the date of their receipt by
levels of priority established by the the supplier and not as of the date of
Transportation Priorities and Alloca- the original procurement document;
tions System regulations, identified by (c) The written signature on a manu-
the rating symbols ‘‘DO’’ and ‘‘DX’’. ally placed order, or the digital signa-
(2) All DO-rated orders have equal ture or name on an electronically
priority with each other and take prec- placed order, of an individual author-
edence over unrated orders. All DX- ized to sign rated orders for the person
rated orders have equal priority with placing the order. The signature or use
each other and take precedence over of the name certifies that the rated
DO-rated orders and unrated orders. order is authorized under this part and
(For resolution of conflicts among that the requirements of this part are
rated orders of equal priority, see being followed; and
§ 33.34(c).) (d)(1) A statement that reads in sub-
(3) In addition, a Directive regarding stance:
priority treatment for a given item This is a rated order certified for na-
issued by the resource agency with pri- tional defense use, and you are re-
orities jurisdiction for that item takes quired to follow all the provisions of
precedence over any DX-rated order, the Transportation Priorities and Allo-
DO-rated order, or unrated order, as cations System regulation at 49 CFR
stipulated in the Directive. (For a full Part 33.
discussion of Directives, see § 33.62.) (2) If the rated order is placed in sup-
(b) Program identification symbols. Pro- port of emergency preparedness re-
gram identification symbols indicate quirements and expedited action is
which approved program is being sup- necessary and appropriate to meet
ported by a rated order. DOT will use these requirements, the following sen-
the letter ‘‘T’’ followed by a number tences should be added following the
for all transportation-related approved statement set forth in paragraph (d)(1)
programs. Programs may be approved above:
under the procedures of Executive This rated order is placed for the purpose
Order 13603 at any time. Program iden-
of emergency preparedness. It must be ac-

tification symbols, in themselves, do cepted or rejected within [INSERT NUMBER
not connote any priority. OF HOURS REQUIRED IN § 33.33] hours from
376
receipt of the order, in accordance with However, the person must offer to ac-
§ 33.33(e) of the Transportation Priorities and cept the rejected orders based on the
Allocations System regulation at 49 CFR earliest delivery dates otherwise pos-
Part 33.
sible.
§ 33.33 Acceptance and rejection of (5) A person shall not accept a rated
rated orders. order if the person is prohibited by
Federal law from meeting the terms of
(a) Mandatory acceptance. (1) Except
the order.
as otherwise specified in this section, a
(c) Optional rejection. Unless other-
person shall accept every rated order
received and must fill such orders re- wise directed by the Department of
gardless of any other rated or unrated Transportation for a rated order in-
orders that have been accepted. volving all forms of civil transpor-
(2) A person shall not discriminate tation, rated orders may be rejected in
against rated orders in any manner any of the following cases as long as a
such as by charging higher prices or by supplier does not discriminate among
imposing different terms and condi- customers:
tions than for comparable unrated or- (1) If the person placing the order is
ders. unwilling or unable to meet regularly
(b) Mandatory rejection. Unless other- established terms of sale or payment;
wise directed by the Department of (2) If the order is for an item not sup-
Transportation for a rated order in- plied or for a service not capable of
volving all forms of civil transpor- being performed;
tation: (3) If the order is for an item or serv-
(1) A person shall not accept a rated ice produced, acquired, or provided
order for delivery on a specific date if only for the supplier’s own use for
unable to fill the order by that date. which no orders have been filled for
However, the person must inform the two years prior to the date of receipt of
customer of the earliest date on which the rated order. If, however, a supplier
delivery can be made and offer to ac- has sold some of these items or pro-
cept the order on the basis of that date. vided similar services, the supplier is
Scheduling conflicts with previously obligated to accept rated orders up to
accepted lower rated or unrated orders that quantity or portion of production
are not sufficient reason for rejection or service, whichever is greater, sold or
under this section. provided within the past two years;
(2) A person shall not accept a DO- (4) If the person placing the rated
rated order for delivery on a date order, other than the U.S. Government,
which would interfere with delivery of makes the item or performs the service
any previously accepted DO- or DX- being ordered;
rated orders. However, the person must (5) If acceptance of a rated order or
offer to accept the order based on the performance against a rated order
earliest delivery date otherwise pos- would violate any other regulation, of-
sible. ficial action, or order of the Depart-
(3) A person shall not accept a DX- ment of Transportation, issued under
rated order for delivery on a date the authority of the Defense Produc-
which would interfere with delivery of tion Act or another relevant statute.
any previously accepted DX-rated or- (d) Customer notification requirements.
ders, but must offer to accept the order (1) Except as provided in paragraph (e)
based on the earliest delivery date oth- of this section, a person must accept or
erwise possible. reject a rated order in writing or elec-
(4) If a person is unable to fill all of tronically within fifteen (15) working
the rated orders of equal priority sta- days after receipt of a DO rated order
tus received on the same day, the per- and within ten (10) working days after
son must accept, based upon the ear- receipt of a DX rated order. If the order
liest delivery dates, only those orders is rejected, the person must give rea-
which can be filled, and reject the sons in writing or electronically for the
other orders. For example, a person rejection.
must accept order A requiring delivery (2) If a person has accepted a rated
on December 15 before accepting order order and subsequently finds that ship-
B requiring delivery on December 31. ment or performance will be delayed,
377
the person must notify the customer additional preference to the DX-rated
immediately, give the reasons for the order.)
delay, and advise of a new shipment or (c) Conflicting rated orders. (1) If a per-
performance date. If notification is son finds that delivery or performance
given verbally, written or electronic against any accepted rated orders con-
confirmation must be provided within flicts with the delivery or performance
five (5) working days. against other accepted rated orders of
(e) Exception for emergency prepared- equal priority status, the person shall
ness conditions. If a rated order is give precedence to the conflicting or-
placed for the purpose of emergency ders in the sequence in which they are
preparedness and includes the addi- to be delivered or performed (not to the
tional statement set forth in receipt dates). If the conflicting orders
§ 33.32(d)(2), a person must accept or re- are scheduled to be delivered or per-
ject the rated order and transmit the formed on the same day, the person
acceptance or rejection in writing or in shall give precedence to those orders
an electronic format: that have the earliest receipt dates.
(1) Within six (6) hours after receipt (2) If a person is unable to resolve
of the order if the order is issued in re- rated order delivery or performance
sponse to a hazard that has occurred; conflicts under this section, the person
or should promptly seek special priorities
(2) Within the greater of twelve (12) assistance as provided in §§ 33.40
hours from receipt of the order or the through 33.44. If the person’s customer
time specified in the order, if the order objects to the rescheduling of delivery
is issued to prepare for an imminent or performance of a rated order, the
hazard. customer should promptly seek special
priorities assistance as provided in
§ 33.34 Preferential scheduling. §§ 33.40 through 33.44. For any rated
(a) A person must schedule oper- order against which delivery or per-
ations, including the acquisition of all formance will be delayed, the person
needed production items or services, in must notify the customer as provided
a timely manner to satisfy the delivery in § 33.33.
requirements of each rated order. (d) If a person is unable to purchase
Modifying production or delivery needed production items in time to fill
schedules is necessary only when re- a rated order by its required delivery
quired delivery dates for rated orders date, the person must fill the rated
cannot otherwise be met. order by using inventoried production
(b) DO-rated orders must be given items. A person who uses inventoried
production or performance preference items to fill a rated order may replace
over unrated orders, if necessary to those items with the use of a rated
meet required delivery dates, even if order as provided in § 33.37(b).
this requires the diversion of items
§ 33.35 Extension of priority ratings.
being processed or ready for delivery or
services being performed against (a) A person must use rated orders
unrated orders. Similarly, DX-rated or- with suppliers to obtain items or serv-
ders must be given preference over DO- ices needed to fill a rated order. The
rated orders and unrated orders. (Ex- person must use the priority rating in-
amples: If a person receives a DO-rated dicated on the customer’s rated order,
order with a delivery date of June 3 except as otherwise provided in this
and if meeting that date would mean part or as directed by the Department
delaying production or delivery of an of Transportation. For example, if a
item for an unrated order, the unrated person is in receipt of a DO–T1 priority
order must be delayed. If a DX-rated rating for a bus and has several buses
order is received calling for delivery on in inventory that are in need of repair,
July 15 and a person has a DO-rated that person must use a DO–T1 rated
order requiring delivery on June 2 and order to obtain the needed bus repairs.
operations can be scheduled to meet (b) The priority rating must be in-
both deliveries, there is no need to cluded on each successive order placed

alter production schedules to give any to obtain items or services needed to
378
fill a customer’s rated order. This con- (2) Containers or other packaging
tinues from contractor to subcon- materials required to make delivery of
tractor to supplier throughout the en- the finished items against rated orders;
tire procurement chain. (3) Services, other than contracts of
employment, needed to fill rated or-
§ 33.36 Changes or cancellations of pri- ders; and
ority ratings and rated orders. (4) MRO needed to produce the fin-
(a) The priority rating on a rated ished items to fill rated orders.
order may be changed or canceled by: (b) A person may use a rated order to
(1) An official action of the Depart- replace inventoried items (including
ment of Transportation; or finished items) if such items were used
(2) Written notification from the per- to fill rated orders, as follows:
son who placed the rated order. (1) The order must be placed within
(b) If an unrated order is amended so 90 days of the date of use of the inven-
as to make it a rated order, or a DO tory.
rating is changed to a DX rating, the (2) A DO rating and the program
supplier must give the appropriate identification symbol indicated on the
preferential treatment to the order as customer’s rated order must be used on
of the date the change is received by the order. A DX rating may not be used
the supplier. even if the inventory was used to fill a
(c) An amendment to a rated order DX-rated order.
that significantly alters a supplier’s (3) If the priority ratings on rated or-
original production or delivery sched- ders from one customer or several cus-
ule shall constitute a new rated order tomers contain different program iden-
as of the date of its receipt. The sup- tification symbols, the rated orders
plier must accept or reject the amend- may be combined. In this case, the pro-
ed order according to the provisions of gram identification symbol ‘‘T9’’ must
§ 33.33. be used (i.e., DO–T9).
(c) A person may combine DX- and
(d) The following amendments do not
DO-rated orders from one customer or
constitute a new rated order: a change
several customers if the items or serv-
in shipping destination; a reduction in
ices covered by each level of priority
the total amount of the order; an in-
are identified separately and clearly. If
crease in the total amount of the order
different program identification sym-
which has negligible impact upon de- bols are indicated on those rated orders
liveries; a minor variation in size or de- of equal priority, the person must use
sign; or a change which is agreed upon the program identification symbol
between the supplier and the customer. ‘‘T9’’ (i.e., DO–T9 or DX–T9).
(e) If a person no longer needs items (d) Combining rated and unrated or-
or services to fill a rated order, any ders.
rated orders placed with suppliers for (1) A person may combine rated and
the items or services, or the priority unrated order quantities on one pur-
rating on those orders, must be can- chase order provided that:
celed. (i) The rated quantities are sepa-
(f) When a priority rating is added to rately and clearly identified; and
an unrated order, or is changed or can- (ii) The four elements of a rated
celed, all suppliers must be promptly order, as required by § 33.32, are in-
notified in writing. cluded on the order with the statement
required in § 33.32(d) modified to read in
§ 33.37 Use of rated orders.
substance:
(a) A person must use rated orders to This purchase order contains rated
obtain: order quantities certified for national
(1) Items which will be physically in- defense use, and you are required to
corporated into other items to fill follow all the provisions of the Trans-
rated orders, including that portion of portation Priorities and Allocations
such items normally consumed or con- System regulations at 49 CFR Part 33
verted into scrap or by-products in the only as it pertains to the rated quan-
course of processing; tities.
379
(2) A supplier must accept or reject ization for a priority rating in advance
the rated portion of the purchase order of a rated order);
as provided in § 33.33 and give pref- (iv) Items that are not needed to fill
erential treatment only to the rated a rated order, except as specifically au-
quantities as required by this part. thorized by the Department of Trans-
This part may not be used to require portation, or as otherwise permitted by
preferential treatment for the unrated this part;
portion of the order. (v) Any of the following items unless
(3) Any supplier who believes that specific priority rating authority has
rated and unrated orders are being been obtained from the Department of
combined in a manner contrary to the Transportation, a Delegate Agency, or
intent of this part or in a fashion that the Department of Commerce, as ap-
causes undue or exceptional hardship propriate:
may submit a request for adjustment (A) Items for plant improvement, ex-
or exception under § 33.80. pansion, or construction, unless they
(e) A person may place a rated order will be physically incorporated into a
for the minimum commercially pro- construction project covered by a rated
curable quantity even if the quantity order; and
needed to fill a rated order is less than (B) Production or construction equip-
that minimum. However, a person ment or items to be used for the manu-
must combine rated orders as provided facture of production equipment (For
in paragraph (c) of this section, if pos- information on requesting priority rat-
sible, to obtain minimum procurable ing authority, see § 33.41); or
quantities. (vi) Any items related to the develop-
ment of chemical or biological warfare
(f) A person is not required to place a
capabilities or the production of chem-
priority rating on an order for less
ical or biological weapons, unless such
than $75,000, or one-half of the Sim-
development or production has been
plified Acquisition Threshold (as estab-
authorized by the President or the Sec-
lished in the Federal Acquisition Regu-
retary of Defense.
lations (FAR) (see FAR section 2.101)
(b) Jurisdictional limitations. (1) Unless
or in other authorized acquisition regu-
authorized by the resource agency with
latory or management systems),
jurisdiction, the provisions of this part
whichever amount is greater, provided
are not applicable to the following re-
that delivery can be obtained in a
sources:
timely fashion without the use of the
(i) Food resources, food resource fa-
priority rating.
cilities, livestock resources, veterinary
§ 33.38 Limitations on placing rated resources, plant health resources, and
orders. the domestic distribution of farm
equipment and commercial fertilizer
(a) General limitations. (1) A person (Resource agency with jurisdiction—
may not place a DO- or DX-rated order Department of Agriculture);
unless entitled to do so under this part. (ii) All forms of energy (Resource
(2) Rated orders may not be used to agency with jurisdiction—Department
obtain: of Energy);
(i) Delivery or performance on a date (iii) Health resources (Resource agen-
earlier than needed; cy with jurisdiction—Department of
(ii) A greater quantity of the item or Health and Human Services);
services than needed, except to obtain (iv) Water resources (Resource agen-
a minimum procurable quantity. Sepa- cy with jurisdiction—Department of
rate rated orders may not be placed Defense/U.S. Army Corps of Engineers);
solely for the purpose of obtaining min- and
imum procurable quantities on each (v) All materials, services, and facili-
order; ties, including construction materials
(iii) Items or services in advance of the authority for which has not been
the receipt of a rated order, except as delegated to other agencies under Ex-
specifically authorized by the Depart- ecutive Order 13603. (Resource Agency
ment of Transportation (see § 33.41(c) with jurisdiction—Department of Com-

for information on obtaining author- merce);
380
(vi) Communications services (Re- tained from the Department of Trans-

source agency with jurisdiction—Na- portation or a Delegate Agency. A sam-
tional Communications System under ple Form OST F 1254 is attached at Ap-
Executive Order 12472 of April 3, 1984). pendix I to this part.
(2) [Reserved]
§ 33.41 Requests for priority rating au-
thority.
Subpart D—Special Priorities
Assistance (a) If a rated order is likely to be de-
layed because a person is unable to ob-
§ 33.40 General provisions. tain items or services not normally
(a) TPAS is designed to be largely rated under this part, the person may
self-executing. However, from time-to- request the authority to use a priority
time production or delivery problems rating in ordering the needed items or
will arise. In this event, a person services.
should immediately contact DOT’s De- (b) Rating authority for production or
fense Production Act Activities Coordi- construction equipment. (1) A request for
nator, Office of Intelligence, Security, priority rating authority for produc-
and Emergency Response, 1200 New tion or construction equipment must
Jersey Avenue SE., Washington, DC be submitted to the U.S. Department of
20590, for guidance or assistance. If the Commerce on FORM BIS–999. (See 15
problem(s) cannot otherwise be re- CFR 700.51).
solved, special priorities assistance (2) When the use of a priority rating
should be sought from the Department is authorized for the procurement of
of Transportation through the Direc- production or construction equipment,
tor, Office of Intelligence, Security, a rated order may be used either to
and Emergency Response, 1200 New purchase or to lease such equipment.
Jersey Avenue SE., Washington, DC However, in the latter case, the equip-
20590. If the Department of Transpor- ment may be leased only from a person
tation is unable to resolve the problem engaged in the business of leasing such
or to authorize the use of a priority equipment or from a person willing to
rating and believes additional assist- lease rather than sell.
ance is warranted, the Department of (c) Rating authority in advance of a
Transportation may forward the re- rated prime contract. (1) In certain cases
quest to another resource agency, as and upon specific request, the Depart-
appropriate, for action. Special prior- ment of Transportation, in order to
ities assistance is a service provided to promote the national defense, may au-
alleviate problems that do arise. thorize a person to place a priority rat-
(b) Special priorities assistance is ing on an order to a supplier in advance
available for any reason consistent of the issuance of a rated prime con-
with this part. Generally, special prior- tract. In these instances, the person re-
ities assistance is provided to expedite questing advance rating authority
deliveries, resolve delivery conflicts, must obtain sponsorship of the request
place rated orders, locate suppliers, or from the Department of Transpor-
to verify information supplied by cus- tation or the appropriate Delegate
tomers and vendors. Special priorities Agency. The person shall also assume
assistance may also be used to request any business risk associated with the
rating authority for items that are not placing of rated orders if these orders
normally eligible for priority treat- have to be cancelled in the event the
ment. rated prime contract is not issued.
(c) A request for special priorities as- (2) The person must state the fol-
sistance or priority rating authority lowing in the request:
must be submitted on Form OST F 1254 It is understood that the authoriza-
(OMB control number to be inserted in tion of a priority rating in advance of
the subsequent final rule) to the De- our receiving a rated prime contract
fense Production Act Activities Coordi- from the Department of Transpor-
nator, Office of Intelligence, Security, tation and our use of that priority rat-
and Emergency Response, 1200 New ing with our suppliers in no way com-
Jersey Avenue SE., Washington, DC mits the Department of Transportation

20590. Form OST F 1254 may be ob- or any other government agency to
381
enter into a contract or order or to ex- (5) Determining the validity of rated
pend funds. Further, we understand orders.
that the Federal Government shall not
be liable for any cancellation charges, § 33.43 Criteria for assistance.
termination costs, or other damages Requests for special priorities assist-
that may accrue if a rated prime con- ance should be timely, e.g., the request
tract is not eventually placed and, as a has been submitted promptly and
result, we must subsequently cancel or-
enough time exists for the Department
ders placed with the use of the priority
of Transportation or the Delegate
rating authorized as a result of this re-
Agency to effect a meaningful resolu-
quest.
(3) In reviewing requests for rating tion to the problem, and must establish
authority in advance of a rated prime that:
contract, the Department of Transpor- (a) There is an urgent need for the
tation will consider, among other item; and
things, the following criteria: (b) The applicant has made a reason-
(i) The probability that the prime able effort to resolve the problem.
contract will be awarded;
(ii) The impact of the resulting rated § 33.44 Instances where assistance may
orders on suppliers and on other au- not be provided.
thorized programs; Special priorities assistance is pro-
(iii) Whether the contractor is the vided at the discretion of the Depart-
sole source; ment of Transportation or the Delegate
(iv) Whether the item being produced Agencies, when it is determined that
has a long lead time; and such assistance is warranted to meet
(v) The time period for which the rat- the objectives of this part. Examples
ing is being requested.
where assistance may not be provided
(4) The Department of Transpor-
include situations when a person is at-
tation may require periodic reports on
the use of the rating authority granted tempting to:
under paragraph (c) of this section. (a) Secure a price advantage;
(5) If a rated prime contract is not (b) Obtain delivery prior to the time
issued, the person shall promptly no- required to fill a rated order;
tify all suppliers who have received (c) Gain competitive advantage;
rated orders pursuant to the advanced (d) Disrupt an industry apportion-
rating authority that the priority rat- ment program in a manner designed to
ing on those orders is cancelled. provide a person with an unwarranted
share of scarce items; or
§ 33.42 Examples of assistance. (e) Overcome a supplier’s regularly
(a) While special priorities assistance established terms of sale or conditions
may be provided for any reason in sup- of doing business.
port of this part, it is usually provided
in situations where: § 33.45 Assistance programs with other
(1) A person is experiencing difficulty nations. [Reserved]
in obtaining delivery against a rated
order by the required delivery date; or Subpart E—Allocation Actions
(2) A person cannot locate a supplier
for an item or service needed to fill a § 33.50 Policy.
rated order.
(b) Other examples of special prior- (a) It is the policy of the Federal
ities assistance include: Government that the allocations au-
(1) Ensuring that rated orders receive thority under title I of the Defense
preferential treatment by suppliers; Production Act may:
(2) Resolving production or delivery (1) Only be used when there is insuffi-
conflicts between various rated orders; cient supply of a material, service, or
(3) Assisting in placing rated orders facility to satisfy national defense sup-
with suppliers; ply requirements through the use of
(4) Verifying the urgency of rated or- the priorities authority or when the
ders; and use of the priorities authority would
382
cause a severe and prolonged disrup- control the general distribution of a

tion in the supply of materials, serv- material in the civilian market, unless
ices, or facilities available to support the Secretary of the Department of
normal U.S. economic activities; and Transportation has:
(2) Not be used to ration materials or (a) Made a written finding that:
services at the retail level. (1) Such material is a scarce and crit-
(b) Allocation orders, when used, will ical material essential to the national
be distributed equitably among the defense, and
suppliers of the materials, services, or (2) The requirements of the national
facilities being allocated and not re- defense for such material cannot other-
quire any person to relinquish a dis- wise be met without creating a signifi-
proportionate share of the civilian cant dislocation of the normal distribu-
market. tion of such material in the civilian
market to such a degree as to create
§ 33.51 General procedures. appreciable hardship;
When the Department of Transpor- (b) Submitted the finding for the
tation plans to execute its allocations President’s approval through the As-
authority to address a supply problem sistant to the President and National
within its resource jurisdiction, the Security Advisor and the Assistant to
Department shall develop a plan that the President for Homeland Security
includes the following information: and Counterterrorism; and
(a) A copy of the written determina- (c) The President has approved the
tion made in accordance with section finding.
202 of Executive Order 13603, that the
program or programs that would be § 33.53 Types of allocation orders.
supported by the allocation action are There are three types of allocation
necessary or appropriate to promote orders available for communicating al-
the national defense; location actions. These are:
(b) A detailed description of the situ- (a) Set-aside: An official action that
ation to include any unusual events or requires a person to reserve materials,
circumstances that have created the services, or facilities capacity in an-
requirement for an allocation action; ticipation of the receipt of rated or-
(c) A statement of the specific objec- ders;
tive(s) of the allocation action; (b) Directive: An official action that
(d) A list of the materials, services, requires a person to take or refrain
or facilities to be allocated; from taking certain actions in accord-
(e) A list of the sources of the mate- ance with its provisions. For example,
rials, services, or facilities that will be a directive can require a person to:
subject to the allocation action; stop or reduce production of an item;
(f) A detailed description of the pro- prohibit the use of selected materials,
visions that will be included in the al- services, or facilities; or divert the use
location orders, including the type(s) of of materials, services, or facilities from
allocation orders, the percentages or one purpose to another; and
quantity of capacity or output to be al- (c) Allotment: An official action that
located for each purpose, and the dura- specifies the maximum quantity of a
tion of the allocation action (e.g., an- material, service, or facility authorized
ticipated start and end dates); for a specific use.
(g) An evaluation of the impact of
the proposed allocation action on the § 33.54 Elements of an allocation
order.
civilian market; and
(h) Proposed actions, if any, to miti- Each allocation order must include:
gate disruptions to civilian market op- (a) A detailed description of the re-
erations. quired allocation action(s);
(b) Specific start and end calendar
§ 33.52 Controlling the general dis- dates for each required allocation ac-
tribution of a material in the civil- tion;
ian market. (c) The written signature on a manu-
No allocation action by the Depart- ally placed order, or the digital signa-
ment of Transportation may be used to ture or name on an electronically
383
placed order, of the Secretary. The sig- § 33.56 Changes or cancellations of an

nature or use of the name certifies that allocation order.
the order is authorized under this part An allocation order may be changed
and that the requirements of this part or canceled by an official action of the
are being followed; Department of Transportation.
(d) A statement that reads in sub-
stance: ‘‘This is an allocation order
Subpart F—Official Actions
certified for national defense use. [In-
sert the legal name of the person re- § 33.60 General provisions.
ceiving the order] is required to com-
ply with this order, in accordance with (a) The Department of Transpor-
the provisions of the Transportation tation may take specific official ac-
tions to implement the provisions of
Priorities and Allocations System reg-
this part.
ulation (49 CFR Part 33)’’; and
(b) These official actions include, but
(e) A current copy of the Transpor-
are not limited to, Rating Authoriza-
tation Priorities and Allocations Sys-
tions, Directives, Planning Orders, and
tem regulation (49 CFR Part 33) as of
Memoranda of Understanding.
the date of the allocation order.
§ 33.61 Rating authorizations.
§ 33.55 Mandatory acceptance of an al-
location order. (a) A Rating Authorization is an offi-
cial action granting specific priority
(a) Except as otherwise specified in
rating authority that:
this section, a person shall accept and
comply with every allocation order re- (1) Permits a person to place a pri-
ority rating on an order for an item or
ceived.
service not normally ratable under this
(b) A person shall not discriminate
part; or
against an allocation order in any
(2) Authorizes a person to modify a
manner such as by charging higher
priority rating on a specific order or
prices for materials, services, or facili-
series of contracts or orders.
ties covered by the order or by impos-
(b) To request priority rating author-
ing terms and conditions for contracts
ity, see § 33.41.
and orders involving allocated mate-
rials, services, or facilities that differ § 33.62 Directives.
from the person’s terms and conditions
for contracts and orders for the mate- (a) A Directive is an official action
rials, services, or facilities prior to re- that requires a person to take or re-
ceiving the allocation order. frain from taking certain actions in ac-
cordance with its provisions.
(c) If a person is unable to comply
fully with the required action(s) speci- (b) A person must comply with each
Directive issued. However, a person
fied in an allocation order, the person
may not use or extend a Directive to
must notify the Department of Trans-
obtain any items from a supplier, un-
portation immediately, explain the ex-
less expressly authorized to do so in
tent to which compliance is possible,
the Directive.
and give the reasons why full compli-
(c) A Priorities Directive takes prec-
ance is not possible. If notification is
edence over all DX-rated orders, DO-
given verbally, written or electronic
rated orders, and unrated orders pre-
confirmation must be provided within
viously or subsequently received, un-
five (5) working days. Such notification
less a contrary instruction appears in
does not release the person from com-
the Directive.
plying with the order to the fullest ex-
(d) An Allocations Directive takes
tent possible, until the person is noti-
precedence over all Priorities Direc-
fied by the Department of Transpor-
tives, DX-rated orders, DO-rated or-
tation that the order has been changed ders, and unrated orders previously or
or cancelled. subsequently received, unless a con-
trary instruction appears in the Direc-

tive.
384
§ 33.63 Memoranda of Understanding. interviews and a systems evaluation to

(a) A Memorandum of Understanding detect problems or failures in the im-
is an official action that may be issued plementation of this part.
in resolving special priorities assist- (b) When undertaking an audit, in-
ance cases to reflect an agreement vestigation, or other inquiry, the De-
reached by all parties (the Department partment of Transportation shall:
of Transportation, the Department of (1) Define the scope and purpose in
Commerce (if applicable), a Delegate the official action given to the person
Agency (if applicable), the supplier, under investigation; and
and the customer). (2) Have ascertained that the infor-
(b) A Memorandum of Understanding mation sought or other adequate and
is not used to alter scheduling between authoritative data are not available
rated orders, authorize the use of pri- from any Federal or other responsible
ority ratings, impose restrictions agency.
under this part, or take other official (c) In administering this part, the
actions. Rather, Memoranda of Under- Department of Transportation may
standing are used to confirm produc- issue the following documents that
tion or shipping schedules that do not
constitute official actions:
require modifications to other rated or-
(1) Administrative Subpoenas. An Ad-
ders.
ministrative Subpoena requires a per-
son to appear as a witness before an of-
Subpart G—Compliance ficial designated by the Department of
§ 33.70 General provisions. Transportation to testify under oath
on matters of which that person has
(a) The Department of Transpor-
knowledge relating to the enforcement
tation may take specific official ac-
or the administration of the Defense
tions for any reason necessary or ap-
Production Act and other applicable
propriate to the enforcement or the ad-
ministration of the Defense Production statutes, this part, or official actions.
Act and other applicable statutes or An Administrative Subpoena may also
this part. Such actions include Admin- require the production of books, pa-
istrative Subpoenas, Demands for In- pers, records, documents and physical
formation, and Inspection Authoriza- objects or property.
tions. (2) Demands for Information. A De-
(b) Any person who places or receives mand for Information requires a person
a rated order or an allocation order to furnish to a duly authorized rep-
must comply with the provisions of resentative of the Department of
this part. Transportation any information nec-
(c) Willful violation of the provisions essary or appropriate to the enforce-
of title I or Section 705 of the Defense ment or the administration of the De-
Production Act and other applicable fense Production Act and other appli-
statutes, this part, or an official action cable statutes, this part, or official ac-
of the Department of Transportation, tions.
is a criminal act, punishable as pro- (3) Inspection Authorizations. An In-
vided in the Defense Production Act spection Authorization requires a per-
and other applicable statutes, and as son to permit a duly authorized rep-
set forth in section 33.74 of this part.
resentative of the Department of
§ 33.71 Audits and investigations. Transportation to interview the per-
son’s employees or agents, to inspect
(a) Audits and investigations are offi-
books, records, documents, other
cial actions involving the examination
writings, and information, including
of books, records, documents, other
electronically-stored information, in
writings and information to ensure
that the provisions of the Defense Pro- the person’s possession or control at
duction Act and other applicable stat- the place where that person usually
utes, this part, and official actions keeps them or otherwise, and to in-
have been properly followed. An audit spect a person’s property when such
or investigation may also include
385
interviews and inspections are nec- (3) Any individual 18 years of age or
essary or appropriate to the enforce- over may serve an Administrative Sub-
ment or the administration of the De- poena, Demand for Information, or In-
fense Production Act and related stat- spection Authorization. When personal
utes, this part, or official actions. service is made, the individual making
(d) The production of books, records, the service shall prepare an affidavit as
documents, other writings, and infor- to the manner in which service was
mation will not be required at any made and the identity of the person
place other than where they are usu- served, and return the affidavit, and in
ally kept if, prior to the return date the case of subpoenas, the original doc-
specified in the Administrative Sub- ument, to the issuing officer. In case of
poena or Demand for Information, a failure to make service, the reasons for
duly authorized official of the Depart- the failure shall be stated on the origi-
ment of Transportation is furnished nal document.
with copies of such material that are (g) This section is neither intended to
certified under oath to be true copies. limit the authority of the Inspector
As an alternative, a person may enter General of the Department of Trans-
into a stipulation with a duly author- portation to initiate and conduct au-
ized official of the Department of dits and investigations nor confer addi-
Transportation as to the content of the tional authority beyond that provided
material. by the Inspector General Act.
(e) An Administrative Subpoena, De-
mand for Information, or Inspection § 33.72 Compulsory process.
Authorization, shall include the name,
title, or official position of the person (a) If a person refuses to permit a
issuing the document and of the person duly authorized representative of the
to be served, the evidence sought to be Department of Transportation to have
adduced, and its general relevance to access to any premises or source of in-
the scope and purpose of the audit, information necessary to the administra-
vestigation, or other inquiry. If em- tion or the enforcement of the Defense
ployees or agents are to be interviewed; Production Act and other applicable
if books, records, documents, other statutes, or this part, the Department
writings, or information are to be proof Transportation representative may
duced; or if property is to be inspected; seek compulsory process. Compulsory
the Administrative Subpoena, Demand process means the institution of appro-
for Information, or Inspection Author- priate legal action, including ex parte
ization will describe them with par- application for an inspection warrant
ticularity. or its equivalent, in any forum of ap-
(f) Service of documents shall be propriate jurisdiction.
made in the following manner: (b) Compulsory process may be
(1) Service of a Demand for Informa- sought in advance of an audit, inves-
tion or Inspection Authorization shall tigation, or other inquiry, if, in the
be made personally, or by Certified judgment of the Department of Trans-
Mail-Return Receipt Requested at the portation there is reason to believe
person’s last known address. Service of that a person will refuse to permit an
an Administrative Subpoena shall be audit, investigation, or other inquiry,
made personally. Personal service may or that other circumstances exist
also be made by leaving a copy of the which make such process desirable or
document with someone at least 18 necessary.
years old at the person’s last known
dwelling or place of business. § 33.73 Notification of failure to com-
(2) Service upon other than an indi- ply.
vidual may be made by serving a part- (a) At the conclusion of an audit, in-
ner, corporate officer, or a managing or vestigation, or other inquiry, or at any
general agent authorized by appoint- other time, the Department of Trans-
ment or by law to accept service of portation may inform the person in
process. If an agent is served, a copy of writing where compliance with the re-
the document shall be mailed to the quirements of the Defense Production

person named in the document. Act and other applicable statutes, this
386
part, or an official action were not knows or has reason to believe that the
met. item will be accepted, redelivered,
(b) In cases where the Department of held, or used in violation of the De-
Transportation determines that failure fense Production Act and other appli-
to comply with the provisions of the cable statutes, this part, or an official
Defense Production Act and other ap- action. In such instances, the person
plicable statutes, this part, or an offi- must immediately notify the Depart-
cial action was inadvertent, the person ment of Transportation that, in ac-
may be informed in writing of the par- cordance with this provision, delivery
ticulars involved and the corrective ac- of the item or performance of the serv-
tion to be taken. Failure to take cor- ice has not been made.
rective action may then be construed
as a willful violation of the Defense § 33.75 Compliance conflicts.
Production Act and other applicable If compliance with any provision of
statutes, this part, or an official ac- the Defense Production Act and other
tion. applicable statutes, this part, or an of-
ficial action would prevent a person
§ 33.74 Violations, penalties, and rem- from filling a rated order or from com-
edies. plying with another provision of the
(a) Willful violation of the provisions Defense Production Act and other ap-
of title 1 or section 705 or 707 of the De- plicable statutes, this part, or an offi-
fense Production Act, the priorities cial action, the person must imme-
provisions of the Selective Service Act, diately notify the Department of
this part, or an official action, is a Transportation for resolution of the
crime and upon conviction, a person conflict.
may be punished by fine or imprison-
ment, or both. The maximum penalty Subpart H—Adjustments,
currently provided by the Defense Pro- Exceptions, and Appeals
duction Act is a $10,000 fine, or one
year in prison, or both. The maximum § 33.80 Adjustments or exceptions.
penalty currently provided by the Se- (a) A person may submit a request to
lective Service Act is a $50,000 fine, or the Defense Production Act Activities
three years in prison, or both. Coordinator, Office of Intelligence Se-
(b) The Government may also seek an curity, and Emergency Response, 1200
injunction from a court of appropriate New Jersey Avenue SE., Washington,
jurisdiction to prohibit the continu- DC 20590, for an adjustment or excep-
ance of any violation of, or to enforce tion on the ground that:
compliance with, the Defense Produc- (1) A provision of this part or an offi-
tion Act, this part, or an official ac- cial action results in an undue or ex-
tion. ceptional hardship on that person not
(c) In order to secure the effective en- suffered generally by others in similar
forcement of the Defense Production situations and circumstances; or
Act and other applicable statutes, this (2) The consequences of following a
part, and official actions, the following provision of this part or an official ac-
are prohibited: tion are contrary to the intent of the
(1) No person may solicit, influence Defense Production Act and other ap-
or permit another person to perform plicable statutes, or this part.
any act prohibited by, or to omit any (b) Each request for adjustment or
act required by, the Defense Produc- exception must be in writing and con-
tion Act and other applicable statutes, tain a complete statement of all the
this part, or an official action. facts and circumstances related to the
(2) No person may conspire or act in provision of this part or official action
concert with any other person to per- from which adjustment or exception is
form any act prohibited by, or to omit sought and a full and precise statement
any act required by, the Defense Pro- of the reasons why relief should be pro-
duction Act and other applicable stat- vided.
utes, this part, or an official action. (c) The submission of a request for
(3) No person shall deliver any item adjustment or exception shall not re-
or perform any service if the person lieve any person from the obligation of
387
complying with the provision of this nied at the discretion of the Assistant
part or official action in question while Secretary for Administration.
the request is being considered unless (e) When a hearing is granted, the As-
such interim relief is granted in writ- sistant Secretary for Administration
ing by the Office of Intelligence, Secu- may designate an employee of the Of-
rity, and Emergency Response. fice of the Senior Procurement Execu-
(d) A decision of the Defense Produc- tive to conduct the hearing and to pre-
tion Act Activities Coordinator under pare a report. The hearing officer shall
this section may be appealed to the As- determine all procedural questions and
sistant Secretary for Administration. impose such time or other limitations
(For information on the appeal proce- deemed reasonable. In the event that
dure, see § 33.81.) the hearing officer decides that a print-
ed transcript is necessary, all expenses
§ 33.81 Appeals.
shall be borne by the appellant.
(a) Any person who has had a request (f) When determining an appeal, the
for adjustment or exception denied by Assistant Secretary for Administration
the Defense Production Act Activities may consider all information sub-
Coordinator under § 33.80, may appeal mitted during the appeal as well as any
to the Department of Transportation’s recommendations, reports, or other rel-
Assistant Secretary for Administra- evant information and documents
tion, who shall review and reconsider available to the Department of Trans-
the denial. portation, or consult with any other
(b)(1) Except as provided in para- persons or groups.
graph (b)(2) of this section, an appeal (g) The submission of an appeal under
must be received by the Assistant Sec-
this section shall not relieve any per-
retary for Administration no later
son from the obligation of complying
than 45 days after receipt of a written
with the provision of this part or offi-
notice of denial from the Defense Pro-
cial action in question while the appeal
duction Act Activities Coordinator.
After this 45-day period, an appeal may is being considered unless such relief is
be accepted at the discretion of the As- granted in writing by the Assistant
sistant Secretary for Administration Secretary for Administration.
for good cause shown. (h) The decision of the Assistant Sec-
(2) For requests for adjustment or ex- retary for Administration shall be
ception involving rated orders placed made within five (5) working days after
for the purpose of emergency prepared- receipt of the appeal, or within one (1)
ness, an appeal must be received by the working day for appeals pertaining to
Assistant Secretary for Administra- emergency preparedness and shall be
tion, no later than five (5) days after the final administrative action. It shall
receipt of a written notice of denial be issued to the appellant in writing
from the Defense Production Act Ac- with a statement of the reasons for the
tivities Coordinator. Contract perform- decision.
ance under the order shall not be
stayed pending resolution of the ap- Subpart I—Miscellaneous
peal. Provisions
(c) Each appeal must be in writing
and contain a complete statement of § 33.90 Protection against claims.
all the facts and circumstances related
A person shall not be held liable for
to the action appealed from, all nec-
essary documents, and a full and pre- damages or penalties for any act or
cise statement of the reasons the deci- failure to act resulting directly or indi-
sion should be modified or reversed. rectly from compliance with any provi-
(d) In addition to the written mate- sion of this part, or an official action,
rials submitted in support of an appeal, notwithstanding that such provision or
an appellant may request, in writing, action shall subsequently be declared
an opportunity for an informal hear- invalid by judicial or other competent

ing. This request may be granted or de- authority.
388
Office of the Secretary of Transportation Pt. 33, App. 1
§ 33.91 Records and reports. duction Act and shall be handled in ac-
cordance with applicable Federal law.
(a) Persons are required to make and
preserve for at least three years, accu- § 33.92 Applicability of this part and
rate and complete records of any trans- official actions.
action covered by this part or an offi-
(a) This part and all official actions,
cial action.
unless specifically stated otherwise,
(b) Records must be maintained in apply to transactions in any State, ter-
sufficient detail to permit the deter- ritory, or possession of the United
mination, upon examination, of wheth- States and the District of Columbia.
er each transaction complies with the (b) This part and all official actions
provisions of this part or any official apply not only to deliveries to other
action. However, this part does not persons but also include deliveries to
specify any particular method or sys- affiliates and subsidiaries of a person
tem to be used. and deliveries from one branch, divi-
(c) Records required to be maintained sion, or section of a single entity to an-
by this part must be made available for other branch, division, or section under
examination on demand by duly au- common ownership or control.
thorized representatives of the Depart- (c) This part and its schedules shall
ment of Transportation as provided in not be construed to affect any adminis-
§ 33.71. trative actions taken by the Depart-
(d) In addition, persons must develop, ment of Transportation, or any out-
maintain, and submit any other standing contracts or orders placed
records and reports to the Department pursuant to any of the parts, orders,
of Transportation that may be required schedules or delegations of authority
for the administration of the Defense previously issued by the Department of
Production Act and other applicable Transportation pursuant to authority
statutes, and this part. granted by the President to the De-
(e) Section 705(d) of the Defense Pro- partment under in the Defense Produc-
duction Act, as implemented by Execu- tion Act. Such actions, contracts, or
tive Order 13603, provides that informa- orders shall continue in full force and
tion obtained under this section which effect under this part unless modified
the Secretary deems confidential, or or terminated by proper authority.
with reference to which a request for
confidential treatment is made by the § 33.93 Communications.
person furnishing such information, All communications concerning this
shall not be published or disclosed un- part, including requests for copies of
less the Secretary determines that the the part and explanatory information,
withholding of this information is con- requests for guidance or clarification,
trary to the interest of the national de- and requests for adjustment or excep-
fense. Information required to be sub- tion shall be addressed to the Defense
mitted to the Department of Transpor- Production Act Activities Coordinator,
tation in connection with the enforce- Office of Intelligence, Security and
ment or administration of the Defense Emergency Response, 1200 New Jersey
Production Act, this part, or an official Avenue SE., Washington, DC 20590.
action, is deemed to be confidential
under section 705(d) of the Defense Pro-
389
Pt. 33, App. 1 49 CFR Subtitle A (10–1–19 Edition)
390
ER01OC12.000</GPH>
391
ER01OC12.001</GPH>
392
ER01OC12.002</GPH>
393
ER01OC12.003</GPH>
394
ER01OC12.004</GPH>
Office of the Secretary of Transportation Pt. 33, Sched. 1
SCHEDULE 1 TO PART 33—APPROVED DHS, in accordance with section 203 of Exec-

PROGRAMS utive Order 13603. They have equal pref-
erential status.
The programs listed in this schedule have Approved Program [Reserved]
been approved for priorities and allocations Program Identification Symbol [Reserved]
support under this part by DoD, DOE, or
395
ER01OC12.005</GPH>
PART 37—TRANSPORTATION SERV- Subpart D—Acquisition of Accessible

ICES FOR INDIVIDUALS WITH DIS- Vehicles by Public Entities
ABILITIES (ADA) 37.71 Purchase or lease of new non-rail vehi-
cles by public entities operating fixed
Subpart A—General route systems.
37.73 Purchase or lease of used non-rail ve-
Sec. hicles by public entities operating fixed
37.1 Purpose. route systems.
37.3 Definitions. 37.75 Remanufacture of non-rail vehicles
37.5 Nondiscrimination. and purchase or lease of remanufactured
37.7 Standards for accessible vehicles. non-rail vehicles by public entities oper-
37.9 Standards for accessible transportation ating fixed route systems.
facilities. 37.77 Purchase or lease of new non-rail vehi-
37.11 Administrative enforcement. cles by public entities operating a de-
37.13 Effective date for certain vehicle spec- mand responsive system for the general
ifications. public.
37.15 Interpretations and guidance. 37.79 Purchase or lease of new rail vehicles
37.16 [Reserved] by public entities operating rapid or
37.17 Designation of responsible employee light rail systems.
and adoption of complaint procedures. 37.81 Purchase or lease of used rail vehicles
37.18–37.19 [Reserved] by public entities operating rapid or
light rail systems.
Subpart B—Applicability 37.83 Remanufacture of rail vehicles and
purchase or lease of remanufactured rail
37.21 Applicability: General. vehicles by public entities operating
37.23 Service under contract. rapid or light rail systems.
37.25 University transportation systems. 37.85 Purchase or lease of new intercity and
37.27 Transportation for elementary and commuter rail cars.
secondary education systems. 37.87 Purchase or lease of used intercity and
37.29 Private entities providing taxi service. commuter rail cars.
37.31 Vanpools. 37.89 Remanufacture of intercity and com-
37.33 Airport transportation systems. muter rail cars and purchase or lease of
37.35 Supplemental service for other trans- remanufactured intercity and commuter
portation modes. rail cars.
37.91 Wheelchair locations and food service
37.37 Other applications.
on intercity rail trains.
37.39 [Reserved]
37.93 One car per train rule.
37.95 Ferries and other passenger vessels op-
Subpart C—Transportation Facilities erated by public entities. [Reserved]
37.41 Construction of transportation facili- 37.97–37.99 [Reserved]
ties by public entities.
37.42 Service in an Integrated Setting to Subpart E—Acquisition of Accessible
Passengers at Intercity, Commuter, and Vehicles by Private Entities
High-Speed Rail Station Platforms Con-
37.101 Purchase or lease of vehicles by pri-
structed or Altered After February 1,
vate entities not primarily engaged in
2012.
the business of transporting people.
37.43 Alteration of transportation facilities
37.103 Purchase or lease of new non-rail ve-
by public entities.
hicles by private entities primarily en-
37.45 Construction and alteration of trans-
gaged in the business of transporting
portation facilities by private entities.
people.
37.47 Key stations in light and rapid rail 37.105 Equivalent service standard.
systems. 37.107 Acquisition of passenger rail cars by
37.49 Designation of responsible person(s) private entities primarily engaged in the
for intercity and commuter rail stations. business of transporting people.
37.51 Key stations in commuter rail sys- 37.109 Ferries and other passenger vessels
tems. operated by private entities. [Reserved]
37.53 Exception for New York and Philadel- 37.111–37.119 [Reserved]
phia.
37.55 Intercity rail station accessibility. Subpart F—Paratransit as a Complement to
37.57 Required cooperation. Fixed Route Service
37.59 Differences in accessibility completion
dates. 37.121 Requirement for comparable com-
37.61 Public transportation programs and plementary paratransit service.

activities in existing facilities. 37.123 ADA paratransit eligibility: Stand-
37.63–37.69 [Reserved] ards.
396
37.125 ADA paratransit eligibility: Process. 37.213 Information collection requirements.
37.127 Complementary paratransit service 37.215 Review of requirements.
for visitors. APPENDIX A TO SUBPART H OF PART 37—SERV-
37.129 Types of service. ICE REQUEST FORM
37.131 Service criteria for complementary APPENDIX A TO PART 37—MODIFICATIONS TO
paratransit. STANDARDS FOR ACCESSIBLE TRANSPOR-
37.133 Subscription service. TATION FACILITIES
37.135 Submission of paratransit plan. APPENDIX B TO PART 37—FTA REGIONAL OF-
37.137 Paratransit plan development. FICES
37.139 Plan contents. APPENDIX C TO PART 37—CERTIFICATIONS
37.141 Requirements for a joint paratransit APPENDIX D TO PART 37—CONSTRUCTION AND
plan. INTERPRETATION OF PROVISIONS OF 49 CFR
37.143 Paratransit plan implementation. PART 37
37.145 State comment on plans. APPENDIX E TO PART 37—REASONABLE MODI-
37.147 Considerations during FTA review. FICATION REQUESTS
37.149 Disapproved plans.
37.151 Waiver for undue financial burden. AUTHORITY: 42 U.S.C. 12101–12213; 49 U.S.C.
37.153 FTA waiver determination. 322.
37.155 Factors in decision to grant an undue SOURCE: 56 FR 45621, Sept. 6, 1991, unless
financial burden waiver. otherwise noted.
37.157–37.159 [Reserved]
Subpart G—Provision of Service Subpart A—General

37.161 Maintenance of accessible features: § 37.1 Purpose.
General. The purpose of this part is to imple-
37.163 Keeping vehicle lifts in operative con- ment the transportation and related
dition: Public entities.
37.165 Lift and securement use.
provisions of titles II and III of the
37.167 Other service requirements. Americans with Disabilities Act of
37.169 Process to be used by public entities 1990.
providing designated public transpor-
tation service in considering requests for § 37.3 Definitions.
reasonable modification. As used in this part:
37.171 Equivalency requirement for demand Accessible means, with respect to ve-
responsive service operated by private
hicles and facilities, complying with
entities not primarily engaged in the
business of transporting people. the accessibility requirements of parts
37.173 Training requirements. 37 and 38 of this title.
The Act or ADA means the Americans
Subpart H—Over-the-Road Buses (OTRBs) with Disabilities Act of 1990 (Pub. L.
101–336, 104 Stat. 327, 42 U.S.C. 12101–
37.181 Applicability dates.
12213 and 47 U.S.C. 225 and 611), as it
37.183 Purchase or lease of new OTRBs by
operators of fixed-route systems. may be amended from time to time.
37.185 Fleet accessibility requirement for Administrator means Administrator of
OTRB fixed-route systems of large opera- the Federal Transit Administration, or
tors. his or her designee.
37.187 Interline service. Alteration means a change to an ex-
37.189 Service requirement for OTRB de- isting facility, including, but not lim-
mand-responsive systems. ited to, remodeling, renovation, reha-
37.191 Special provision for small mixed- bilitation, reconstruction, historic res-
service operators.
37.193 Interim service requirements.
toration, changes or rearrangement in
37.195 Purchase or lease of OTRBs by pri- structural parts or elements, and
vate entities not primarily in the busi- changes or rearrangement in the plan
ness of transporting people. configuration of walls and full-height
37.197 Remanufactured OTRBs. partitions. Normal maintenance, re-
37.199 [Reserved] roofing, painting or wallpapering, as-
37.201 Intermediate and rest stops. bestos removal, or changes to mechan-
37.203 Lift maintenance. ical or electrical systems are not alter-
37.205 Additional passengers who use wheel-
chairs.
ations unless they affect the usability
37.207 Discriminatory practices. of the building or facility.
Automated guideway transit system or
37.209 Training and other requirements.

37.211 Effect of NHTSA and FHWA safety AGT means a fixed-guideway transit
rules. system which operates with automated
397
(driverless) individual vehicles or tation, the Maryland Department of

multi-car trains. Service may be on a Transportation, the Southeastern
fixed schedule or in response to a pas- Pennsylvania Transportation Author-
senger-activated call button. ity, the New Jersey Transit Corpora-
Auxiliary aids and services includes: tion, the Massachusetts Bay Transpor-
(1) Qualified interpreters, notetakers, tation Authority, the Port Authority
transcription services, written mate- Trans-Hudson Corporation, and any
rials, telephone headset amplifiers, as- successor agencies) and any entity cre-
sistive listening devices, assistive lis- ated by one or more such agencies for
tening systems, telephones compatible the purposes of operating, or con-
with hearing aids, closed caption de- tracting for the operation of, com-
coders, closed and open captioning, muter rail transportation.
text telephones (also known as tele- Commuter bus service means fixed
phone devices for the deaf, or TDDs), route bus service, characterized by
videotext displays, or other effective service predominantly in one direction
methods of making aurally delivered during peak periods, limited stops, use
materials available to individuals with of multi-ride tickets, and routes of ex-
hearing impairments; tended length, usually between the
(2) Qualified readers, taped texts, central business district and outlying
audio recordings, Brailled materials, suburbs. Commuter bus service may
large print materials, or other effective also include other service, character-
methods of making visually delivered ized by a limited route structure, lim-
materials available to individuals with ited stops, and a coordinated relation-
visual impairments; ship to another mode of transpor-
(3) Acquisition or modification of tation.
equipment or devices; or Commuter rail car means a rail pas-
(4) Other similar services or actions. senger car obtained by a commuter au-
Bus means any of several types of thority for use in commuter rail trans-
self-propelled vehicles, generally rub- portation.
ber-tired, intended for use on city Commuter rail transportation means
streets, highways, and busways, includ- short-haul rail passenger service oper-
ing but not limited to minibuses, forty- ating in metropolitan and suburban
and thirty-foot buses, articulated areas, whether within or across the
buses, double-deck buses, and elec- geographical boundaries of a state,
trically powered trolley buses, used by usually characterized by reduced fare,
public entities to provide designated multiple ride, and commutation tick-
public transportation service and by ets and by morning and evening peak
private entities to provide transpor- period operations. This term does not
tation service including, but not lim- include light or rapid rail transpor-
ited to, specified public transportation tation.
services. Self-propelled, rubber-tired Demand responsive system means any
vehicles designed to look like antique system of transporting individuals, in-
or vintage trolleys are considered cluding the provision of designated
buses. public transportation service by public
Commerce means travel, trade, trans- entities and the provision of transpor-
portation, or communication among tation service by private entities, in-
the several states, between any foreign cluding but not limited to specified
country or any territory or possession public transportation service, which is
and any state, or between points in the not a fixed route system.
same state but through another state Designated public transportation means
or foreign country. transportation provided by a public en-
Commuter authority means any state, tity (other than public school transpor-
local, regional authority, corporation, tation) by bus, rail, or other convey-
or other entity established for purposes ance (other than transportation by air-
of providing commuter rail transpor- craft or intercity or commuter rail
tation (including, but not necessarily transportation) that provides the gen-
limited to, the New York Metropolitan eral public with general or special serv-
Transportation Authority, the Con- ice, including charter service, on a reg-

necticut Department of Transpor- ular and continuing basis.
398
Direct threat means a significant risk major life activities, but which is
to the health or safety of others that treated by a public or private entity as
cannot be eliminated by a modification constituting such a limitation;
of policies, practices, procedures, or by (ii) Has a physical or mental impair-
the provision of auxiliary aids or serv- ment that substantially limits a major
ices. life activity only as a result of the atti-
Disability means, with respect to an tudes of others toward such an impair-
individual, a physical or mental im- ment; or
pairment that substantially limits one (iii) Has none of the impairments de-
or more of the major life activities of fined in paragraph (1) of this definition
such individual; a record of such an im- but is treated by a public or private en-
pairment; or being regarded as having tity as having such an impairment.
such an impairment. (5) The term disability does not in-
(1) The phrase physical or mental im- clude—
pairment means— (i) Transvestism, transsexualism,
(i) Any physiological disorder or con- pedophilia, exhibitionism, voyeurism,
dition, cosmetic disfigurement, or ana- gender identity disorders not resulting
tomical loss affecting one or more of from physical impairments, or other
the following body systems: neuro- sexual behavior disorders;
logical, musculoskeletal, special sense (ii) Compulsive gambling, klep-
organs, respiratory including speech tomania, or pyromania;
organs, cardiovascular, reproductive, (iii) Psychoactive substance abuse
digestive, genito-urinary, hemic and disorders resulting from the current il-
lymphatic, skin, and endocrine; legal use of drugs.
(ii) Any mental or psychological dis- Facility means all or any portion of
order, such as mental retardation, or- buildings, structures, sites, complexes,
ganic brain syndrome, emotional or equipment, roads, walks, passageways,
mental illness, and specific learning parking lots, or other real or personal
disabilities; property, including the site where the
(iii) The term physical or mental im- building, property, structure, or equip-
pairment includes, but is not limited to, ment is located.
such contagious or noncontagious dis- Fixed route system means a system of
eases and conditions as orthopedic, vis- transporting individuals (other than by
ual, speech, and hearing impairments; aircraft), including the provision of
cerebral palsy, epilepsy, muscular dys- designated public transportation serv-
trophy, multiple sclerosis, cancer, ice by public entities and the provision
heart disease, diabetes, mental retar- of transportation service by private en-
dation, emotional illness, specific tities, including, but not limited to,
learning disabilities, HIV disease, tu- specified public transportation service,
berculosis, drug addiction and alco- on which a vehicle is operated along a
holism; prescribed route according to a fixed
(iv) The phrase physical or mental im- schedule.
pairment does not include homosex- FT Act means the Federal Transit
uality or bisexuality. Act of 1964, as amended (49 U.S.C. App.
(2) The phrase major life activities 1601 et seq.).
means functions such as caring for High speed rail means a rail service
one’s self, performing manual tasks, having the characteristics of intercity
walking, seeing, hearing, speaking, rail service which operates primarily
breathing, learning, and work. on a dedicated guideway or track not
(3) The phrase has a record of such an used, for the most part, by freight, in-
impairment means has a history of, or cluding, but not limited to, trains on
has been misclassified as having, a welded rail, magnetically levitated
mental or physical impairment that (maglev) vehicles on a special guide-
substantially limits one or more major way, or other advanced technology ve-
life activities. hicles, designed to travel at speeds in
(4) The phrase is regarded as having excess of those possible on other types
such an impairment means— of railroads.
(i) Has a physical or mental impair- Individual with a disability means a

ment that does not substantially limit person who has a disability, but does
399
not include an individual who is cur- (3) The National Railroad Passenger
rently engaging in the illegal use of Corporation (Amtrak) and any com-
drugs, when a public or private entity muter authority.
acts on the basis of such use. Purchase or lease, with respect to ve-
Intercity rail passenger car means a hicles, means the time at which an en-
rail car, intended for use by revenue tity is legally obligated to obtain the
passengers, obtained by the National vehicles, such as the time of contract
Railroad Passenger Corporation (Am- execution.
trak) for use in intercity rail transpor- Public school transportation means
tation. transportation by schoolbus vehicles of
Intercity rail transportation means schoolchildren, personnel, and equip-
transportation provided by Amtrak. ment to and from a public elementary
Light rail means a streetcar-type ve- or secondary school and school-related
hicle operated on city streets, semi-ex- activities.
clusive rights of way, or exclusive Rapid rail means a subway-type tran-
rights of way. Service may be provided sit vehicle railway operated on exclu-
by step-entry vehicles or by level sive private rights of way with high
boarding. level platform stations. Rapid rail also
New vehicle means a vehicle which is may operate on elevated or at grade
offered for sale or lease after manufac- level track separated from other traf-
ture without any prior use. fic.
Remanufactured vehicle means a vehi-
Operates includes, with respect to a
cle which has been structurally re-
fixed route or demand responsive sys-
stored and has had new or rebuilt
tem, the provision of transportation
major components installed to extend
service by a public or private entity
its service life.
itself or by a person under a contrac-
tual or other arrangement or relation-
Transportation or his/her designee.
ship with the entity.
Section 504 means section 504 of the
Origin-to-destination service means
Rehabilitation Act of 1973 (Pub. L. 93–
providing service from a passenger’s or-
112, 87 Stat. 394, 29 U.S.C. 794), as
igin to the passenger’s destination. A
amended.
provider may provide ADA complemen-
Service animal means any guide dog,
tary paratransit in a curb-to-curb or
signal dog, or other animal individ-
door-to-door mode. When an ADA para-
ually trained to work or perform tasks
transit operator chooses curb-to-curb
for an individual with a disability, in-
as its primary means of providing serv-
cluding, but not limited to, guiding in-
ice, it must provide assistance to those
dividuals with impaired vision, alert-
passengers who need assistance beyond
ing individuals with impaired hearing
the curb in order to use the service un-
to intruders or sounds, providing mini-
less such assistance would result in in
mal protection or rescue work, pulling
a fundamental alteration or direct
a wheelchair, or fetching dropped
threat.
items.
Over-the-road bus means a bus charac- Small operator means, in the context
terized by an elevated passenger deck of over-the-road buses (OTRBs), a pri-
located over a baggage compartment. vate entity primarily in the business of
Paratransit means comparable trans- transporting people that is not a Class
portation service required by the ADA I motor carrier. To determine whether
for individuals with disabilities who an operator has sufficient average an-
are unable to use fixed route transpor- nual gross transportation operating
tation systems. revenues to be a Class I motor carrier,
Private entity means any entity other its revenues are combined with those of
than a public entity. any other OTRB operator with which it
Public entity means: is affiliated.
(1) Any state or local government; Solicitation means the closing date for
(2) Any department, agency, special the submission of bids or offers in a
purpose district, or other instrumen- procurement.
tality of one or more state or local gov- Specified public transportation means
ernments; and transportation by bus, rail, or any
400
other conveyance (other than aircraft) § 37.5 Nondiscrimination.

provided by a private entity to the gen-
(a) No entity shall discriminate
eral public, with general or special
against an individual with a disability
service (including charter service) on a
regular and continuing basis. in connection with the provision of
Station means, with respect to inter- transportation service.
city and commuter rail transportation, (b) Notwithstanding the provision of
the portion of a property located ap- any special transportation service to
purtenant to a right of way on which individuals with disabilities, an entity
intercity or commuter rail transpor- shall not, on the basis of disability,
tation is operated, where such portion deny to any individual with a dis-
is used by the general public and is re- ability the opportunity to use the enti-
lated to the provision of such transpor- ty’s transportation service for the gen-
tation, including passenger platforms, eral public, if the individual is capable
designated waiting areas, restrooms, of using that service.
and, where a public entity providing (c) An entity shall not require an in-
rail transportation owns the property, dividual with a disability to use des-
concession areas, to the extent that ignated priority seats, if the individual
such public entity exercises control does not choose to use these seats.
over the selection, design, construc- (d) An entity shall not impose special
tion, or alteration of the property, but charges, not authorized by this part, on
this term does not include flag stops individuals with disabilities, including
(i.e., stations which are not regularly individuals who use wheelchairs, for
scheduled stops but at which trains providing services required by this part
will stop to board or detrain passengers or otherwise necessary to accommo-
only on signal or advance notice). date them.
Used vehicle means a vehicle with (e) An entity shall not require that
prior use. an individual with disabilities be ac-
Vanpool means a voluntary com- companied by an attendant.
muter ridesharing arrangement, using
(f) Private entities that are primarily
vans with a seating capacity greater
engaged in the business of transporting
than 7 persons (including the driver) or
people and whose operations affect
buses, which provides transportation to
commerce shall not discriminate
a group of individuals traveling di-
against any individual on the basis of
rectly from their homes to their reg-
ular places of work within the same disability in the full and equal enjoy-
geographical area, and in which the ment of specified transportation serv-
commuter/driver does not receive com- ices. This obligation includes, with re-
pensation beyond reimbursement for spect to the provision of transportation
his or her costs of providing the serv- services, compliance with the require-
ice. ments of the rules of the Department
Vehicle, as the term is applied to pri- of Justice concerning eligibility cri-
vate entities, does not include a rail teria, making reasonable modifica-
passenger car, railroad locomotive, tions, providing auxiliary aids and
railroad freight car, or railroad ca- services, and removing barriers (28 CFR
boose, or other rail rolling stock de- 36.301–36.306).
scribed in section 242 of title III of the (g) An entity shall not refuse to serve
Act. an individual with a disability or re-
Wheelchair means a mobility aid be- quire anything contrary to this part
longing to any class of three- or more- because its insurance company condi-
wheeled devices, usable indoors, de- tions coverage or rates on the absence
signed or modified for and used by indi- of individuals with disabilities or re-
viduals with mobility impairments, quirements contrary to this part.
whether operated manually or powered. (h) It is not discrimination under this
part for an entity to refuse to provide
[56 FR 45621, Sept. 6, 1991, as amended at 58
FR 63101, Nov. 30, 1993; 61 FR 25415, May 21, service to an individual with disabil-
ities because that individual engages in
1996; 63 FR 51690, Sept. 28, 1998; 76 FR 57935,

Sept. 19, 2011; 79 FR 21405, Apr. 16, 2014; 80 FR violent, seriously disruptive, or illegal
13260, Mar. 13, 2015] conduct, or represents a direct threat
401
to the health or safety of others. How- ties shall give priority to those meth-
ever, an entity shall not refuse to pro- ods that offer services, programs, and
vide service to an individual with dis- activities to qualified individuals with
abilities solely because the individual’s disabilities in the most integrated set-
disability results in appearance or in- ting appropriate to the needs of indi-
voluntary behavior that may offend, viduals with disabilities.
annoy, or inconvenience employees of
the entity or other persons. [56 FR 45621, Sept. 6, 1991, as amended at 80
FR 13260, Mar. 13, 2015]
(i) Public and private entity distinc-
tions.— (1) Private entity–private trans- § 37.7 Standards for accessible vehi-
port. Private entities that are pri- cles.
marily engaged in the business of
transporting people and whose oper- (a) For purposes of this part, a vehi-
ations affect commerce shall not dis- cle shall be considered to be readily ac-
criminate against any individual on cessible to and usable by individuals
the basis of disability in the full and with disabilities if it meets the re-
equal enjoyment of specified transpor- quirements of this part and the stand-
tation services. This obligation in- ards set forth in part 38 of this title.
cludes, with respect to the provision of (b)(1) For purposes of implementing
transportation services, compliance the equivalent facilitation provision in
with the requirements of the rules of § 38.2 of this subtitle, the following par-
the Department of Justice concerning ties may submit to the Administrator
eligibility criteria, making reasonable of the applicable operating administra-
modifications, providing auxiliary aids tion a request for a determination of
and services, and removing barriers (28 equivalent facilitation:
CFR 36.301–36.306). (i) A public or private entity that
(2) Private entity–public transport. Pri- provides transportation services and is
vate entities that provide specified subject to the provisions of subpart D
public transportation shall make rea- or subpart E this part; or
sonable modifications in policies, prac- (ii) The manufacturer of a vehicle or
tices, or procedures, when the modi- a vehicle component or subsystem to
fications are necessary to afford goods, be used by such entity to comply with
services, facilities, privileges, advan- this part.
tages, or accommodations to individ- (2) The requesting party shall provide
uals with disabilities, unless the entity the following information with its re-
can demonstrate that making the quest:
modifications would fundamentally (i) Entity name, address, contact per-
alter the nature of the goods, services, son and telephone;
facilities, privileges, advantages, or ac-
(ii) Specific provision of part 38 of
commodations.
this title concerning which the entity
(3) Public entity–public transport. Pub-
is seeking a determination of equiva-
lic entities that provide designated
lent facilitation.
public transportation shall make rea-
sonable modifications in policies, prac- (iii) [Reserved]
tices, or procedures when the modifica- (iv) Alternative method of compli-
tions are necessary to avoid discrimi- ance, with demonstration of how the
nation on the basis of disability or to alternative meets or exceeds the level
provide program accessibility to their of accessibility or usability of the vehi-
services, subject to the limitations of cle provided in part 38 of this subtitle;
§ 37.169(c)(1)–(3). This requirement ap- and
plies to the means public entities use (v) Documentation of the public par-
to meet their obligations under all pro- ticipation used in developing an alter-
visions of this part. native method of compliance.
(4) In choosing among alternatives (3) In the case of a request by a pub-
for meeting nondiscrimination and ac- lic entity that provides transportation
cessibility requirements with respect services subject to the provisions of
to new, altered, or existing facilities, subpart D of this part, the required
or designated or specified transpor- public participation shall include the

tation services, public and private enti- following:
402
(i) The entity shall contact individ- tation, or any of its operating adminis-
uals with disabilities and groups rep- trations.
resenting them in the community. Con- (c) Over-the-road buses acquired by
sultation with these individuals and public entities (or by a contractor to a
groups shall take place at all stages of public entity as provided in § 37.23 of
the development of the request for this part) shall comply with § 38.23 and
equivalent facilitation. All documents subpart G of part 38 of this title.
and other information concerning the [56 FR 45621, Sept. 6, 1991, as amended at 58
request shall be available, upon re- FR 63101, Nov. 30, 1993; 61 FR 25416, May 21,
quest, to members of the public. 1996]
(ii) The entity shall make its pro-
posed request available for public com- § 37.9 Standards for accessible trans-
ment before the request is made final portation facilities.
or transmitted to DOT. In making the (a) For purposes of this part, a trans-
request available for public review, the portation facility shall be considered
entity shall ensure that it is available, to be readily accessible to and usable
upon request, in accessible formats. by individuals with disabilities if it
(iii) The entity shall sponsor at least meets the requirements of this part
one public hearing on the request and and the requirements set forth in Ap-
shall provide adequate notice of the pendices B and D to 36 CFR part 1191,
hearing, including advertisement in ap- which apply to buildings and facilities
propriate media, such as newspapers of covered by the Americans with Disabil-
general and special interest circulation ities Act, as modified by Appendix A to
and radio announcements. this part.
(4) In the case of a request by a pri- (b) Facility alterations begun before
vate entity that provides transpor- January 26, 1992, in a good faith effort
tation services subject to the provi- to make a facility accessible to indi-
sions of subpart E of this part or a viduals with disabilities may be used to
manufacturer, the private entity or meet the key station requirements set
manufacturer shall consult, in person, forth in §§ 37.47 and 37.51 of this part,
in writing, or by other appropriate even if these alterations are not con-
means, with representatives of na- sistent with the requirements set forth
tional and local organizations rep- in Appendices B and D to 36 CFR part
resenting people with those disabilities 1191 and Appendix A to this part, if the
who would be affected by the request. modifications complied with the Uni-
(5) A determination of compliance form Federal Accessibility Standards
will be made by the Administrator of (UFAS) or ANSI A117.1(1980) (American
the concerned operating administra- National Standards Specification for
tion on a case-by-case basis, with the Making Buildings and Facilities Acces-
concurrence of the Assistant Secretary sible to and Usable by the Physically
for Policy and International Affairs. Handicapped). This paragraph applies
(6) Determinations of equivalent fa- only to alterations of individual ele-
cilitation are made only with respect ments and spaces and only to the ex-
to vehicles or vehicle components used tent that provisions covering those ele-
in the provision of transportation serv- ments or spaces are contained in UFAS
ices covered by subpart D or subpart E or ANSI A117.1, as applicable.
of this part, and pertain only to the (c) (1) New construction or alter-
specific situation concerning which the ations of buildings or facilities on
determination is made. Entities shall which construction has begun, or all
not cite these determinations as indi- approvals for final design have been re-
cating that a product or method con- ceived, before November 29, 2006, are
stitute equivalent facilitations in situ- not required to be consistent with the
ations other than those to which the requirements set forth in Appendices B
determinations specifically pertain. and D to 36 CFR part 1191 and Appendix
Entities shall not claim that a deter- A to this part, if the construction or
mination of equivalent facilitation in- alterations comply with the former Ap-
dicates approval or endorsement of any pendix A to this part, as codified in the
product or method by the Federal gov- October 1, 2006, edition of the Code of
ernment, the Department of Transpor- Federal Regulations.
403
(2) Existing buildings and facilities required public participation shall in-
that are not altered after November 29, clude the following:
2006, and which comply with the former (i) The entity shall contact individ-
Appendix A to this part, are not re- uals with disabilities and groups rep-
quired to be retrofitted to comply with resenting them in the community. Con-
the requirements set forth in Appen- sultation with these individuals and
dices B and D to 36 CFR part 1191 and groups shall take place at all stages of
Appendix A to this part. the development of the request for
(d)(1) For purposes of implementing equivalent facilitation. All documents
the equivalent facilitation provision in and other information concerning the
ADA Chapter 1, Section 103, of Appen- request shall be available, upon re-
dix B to 36 CFR part 1191, the following quest, to Department of Transpor-
parties may submit to the Adminis- tation officials and members of the
trator of the applicable operating ad- public.
ministration a request for a determina- (ii) The entity shall make its pro-
tion of equivalent facilitation: posed request available for public com-
(i)(A) A public or private entity that ment before the request is made final
provides transportation facilities sub- or transmitted to DOT. In making the
ject to the provisions of subpart C of request available for public review, the
this part, or other appropriate party entity shall ensure that it is available,
with the concurrence of the Adminis- upon request, in accessible formats.
trator. (iii) The entity shall sponsor at least
(B) With respect to airport facilities, one public hearing on the request and
an entity that is an airport operator shall provide adequate notice of the
subject to the requirements of 49 CFR hearing, including advertisement in ap-
part 27 or regulations implementing propriate media, such as newspapers of
the Americans with Disabilities Act, general and special interest circulation
an air carrier subject to the require- and radio announcements.
ments of 14 CFR part 382, or other ap- (4) In the case of a request by a man-
propriate party with the concurrence ufacturer or a private entity other
of the Administrator. than an air carrier, the manufacturer
(ii) The manufacturer of a product or or private entity shall consult, in per-
accessibility feature to be used in a son, in writing, or by other appropriate
transportation facility or facilities. means, with representatives of na-
(2) The requesting party shall provide tional and local organizations rep-
the following information with its re- resenting people with those disabilities
quest: who would be affected by the request.
(i) Entity name, address, contact per- (5) A determination of compliance
son and telephone; will be made by the Administrator of
(ii) Specific provision(s) of Appen- the concerned operating administra-
dices B and D to 36 CFR part 1191 or tion on a case-by-case basis, with the
Appendix A to this part concerning concurrence of the Assistant Secretary
which the entity is seeking a deter- for Transportation Policy.
mination of equivalent facilitation. (6)(i) Determinations of equivalent
(iii) [Reserved] facilitation are made only with respect
(iv) Alternative method of compli- to transportation facilities, and per-
ance, with demonstration of how the tain only to the specific situation con-
alternative meets or exceeds the level cerning which the determination is
of accessibility or usability provided in made. Provided, however, that with re-
Appendices B and D to 36 CFR part 1191 spect to a product or accessibility fea-
or Appendix A to this part; and ture that the Administrator deter-
(v) Documentation of the public par- mines can provide an equivalent facili-
ticipation used in developing an alter- tation in a class of situations, the Ad-
native method of compliance. ministrator may make an equivalent
(3) In the case of a request by a pub- facilitation determination applying to
lic entity that provides transportation that class of situations.
facilities (including an airport oper- (ii) Entities shall not cite these de-
ator), or a request by an air carrier terminations as indicating that a prod-

with respect to airport facilities, the uct or method constitutes equivalent
404
facilitation in situations, or classes of disability matters, the Disability Law

situations, other than those to which Coordinating Council. Written inter-
the determinations specifically per- pretations and guidance constitute the
tain. official position of the Department of
(iii) Entities shall not claim that a Transportation, or any of its operating
determination of equivalent facilita- administrations, only if they are issued
tion indicates approval or endorsement over the signature of the Secretary of
of any product or method by the Fed- Transportation or if they contain the
eral government, the Department of following statement: ‘‘The General
Transportation, or any of its operating Counsel of the Department of Trans-
administrations. portation has reviewed this document
[71 FR 63265, Oct. 30, 2006]
and approved it as consistent with the
language and intent of 49 CFR parts 27,
§ 37.11 Administrative enforcement. 37, 38, and/or 39, as applicable.’’
(a) Recipients of Federal financial as- [76 FR 57935, Sept. 19, 2011]
sistance from the Department of
Transportation are subject to adminis- § 37.16 [Reserved]
trative enforcement of the require-
§ 37.17 Designation of responsible em-
ments of this part under the provisions ployee and adoption of complaint
of 49 CFR part 27, subpart C. procedures.
(b) Public entities, whether or not
they receive Federal financial assist- (a) Designation of responsible employee.
Each public or private entity subject to
ance, also are subject to enforcement
this part shall designate at least one
action as provided by the Department
person to coordinate its efforts to com-
of Justice.
ply with this part. (b) Adoption of com-
(c) Private entities, whether or not
plaint procedures. An entity shall adopt
they receive Federal financial assist-
procedures that incorporate appro-
ance, are also subject to enforcement
priate due process standards and pro-
action as provided in the regulations of
vide for the prompt and equitable reso-
the Department of Justice imple-
lution of complaints alleging any ac-
menting title III of the ADA (28 CFR
tion prohibited by this part and 49 CFR
part 36).
parts 27, 38 and 39. The procedures shall
[56 FR 45621, Sept. 6, 1991, as amended at 61 meet the following requirements:
FR 25416, May 21, 1996] (1) The process for filing a complaint,
including the name, address, telephone
§ 37.13 Effective date for certain vehi- number, and email address of the em-
cle specifications.
ployee designated under paragraph (a)
(a) The vehicle lift specifications of this section, must be sufficiently ad-
identified in §§ 38.23(b)(6), 38.83(b)(6), vertised to the public, such as on the
38.95(b)(6), and 38.125(b)(6) of this title entity’s Web site;
apply to solicitations for vehicles (2) The procedures must be accessible
under this part after January 25, 1992. to and usable by individuals with dis-
(b) The vehicle door height require- abilities;
ments for vehicles over 22 feet identi- (3) The entity must promptly com-
fied in § 38.25(c) of this title apply to so- municate its response to the complaint
licitations for vehicles under this part allegations, including its reasons for
after January 25, 1992. the response, to the complainant and
[56 FR 64215, Dec. 9, 1991] must ensure that it has documented its
response.
§ 37.15 Interpretations and guidance. [80 FR 13261, Mar. 13, 2015]
The Secretary of Transportation, Of-
fice of the Secretary of Transportation, §§ 37.18–37.19 [Reserved]
and Operating Administrations may
issue written interpretations of or Subpart B—Applicability
written guidance concerning this part.
Written interpretations and guidance § 37.21 Applicability: General.
shall be developed through the Depart- (a) This part applies to the following
ment’s coordinating mechanism for entities, whether or not they receive
405
Federal financial assistance from the provide fixed route service shall ensure
Department of Transportation: that the percentage of accessible vehi-
(1) Any public entity that provides cles operated by the public entity in its
designated public transportation or overall fixed route or demand respon-
intercity or commuter rail transpor- sive fleet is not diminished as a result.
tation; (d) A private entity that provides
(2) Any private entity that provides fixed route or demand responsive trans-
specified public transportation; and portation service under contract or
(3) Any private entity that is not pri- other arrangement (including, but not
marily engaged in the business of limited to, a grant, subgrant, or coop-
transporting people but operates a de- erative agreement) with another pri-
mand responsive or fixed route system. vate entity shall be governed, for pur-
(b) For entities receiving Federal fi- poses of the transportation service in-
nancial assistance from the Depart- volved, by the provisions of this part
ment of Transportation, compliance applicable to the other entity.
with applicable requirements of this [56 FR 45621, Sept. 6, 1991, as amended at 76
part is a condition of compliance with FR 57935, Sept. 19, 2011]
section 504 of the Rehabilitation Act of
1973 and of receiving financial assist- § 37.25 University transportation sys-
ance. tems.
(c) Entities to which this part applies (a) Transportation services operated
also may be subject to ADA regula- by private institutions of higher edu-
tions of the Department of Justice (28 cation are subject to the provisions of
CFR parts 35 or 36, as applicable). The this part governing private entities not
provisions of this part shall be inter- primarily engaged in the business of
preted in a manner that will make transporting people.
them consistent with applicable De- (b) Transportation systems operated
partment of Justice regulations. In any by public institutions of higher edu-
case of apparent inconsistency, the cation are subject to the provisions of
provisions of this part shall prevail. this part governing public entities. If a
public institution of higher education
§ 37.23 Service under contract. operates a fixed route system, the re-
(a) When a public entity enters into a quirements of this part governing com-
contractual or other arrangement (in- muter bus service apply to that sys-
cluding, but not limited to, a grant, tem.
subgrant, or cooperative agreement) or
relationship with a private entity to § 37.27 Transportation for elementary
and secondary education systems.
operate fixed route or demand respon-
sive service, the public entity shall en- (a) The requirements of this part do
sure that the private entity meets the not apply to public school transpor-
requirements of this part that would tation.
apply to the public entity if the public (b) The requirements of this part do
entity itself provided the service. not apply to the transportation of
(b) A private entity which purchases school children to and from a private
or leases new, used, or remanufactured elementary or secondary school, and
vehicles, or remanufactures vehicles, its school-related activities, if the
for use, or in contemplation of use, in school is providing transportation serv-
fixed route or demand responsive service to students with disabilities equiva-
ice under contract or other arrange- lent to that provided to students with-
ment or relationship with a public en- out disabilities. The test of equivalence
tity, shall acquire accessible vehicles is the same as that provided in § 37.105.
in all situations in which the public en- If the school does not meet the require-
tity itself would be required to do so by ment of this paragraph for exemption
this part. from the requirements of this part, it
(c) A public entity which enters into is subject to the requirements of this
a contractual or other arrangement part for private entities not primarily
(including, but not limited to, a grant, engaged in transporting people.
subgrant, or cooperative agreement) or [56 FR 45621, Sept. 6, 1991, as amended at 61

relationship with a private entity to FR 25415, May 21, 1996]
406
§ 37.29 Private entities providing taxi tation systems are subject to the re-
service. quirements of this part for commuter
(a) Providers of taxi service are sub- bus service operated by public entities.
ject to the requirements of this part The provision by an airport of addi-
for private entities primarily engaged tional accommodations (e.g., parking
in the business of transporting people spaces in a close-in lot) is not a sub-
which provide demand responsive serv- stitute for meeting the requirements of
ice. this part.
(b) Providers of taxi service are not (b) Fixed-route transportation sys-
required to purchase or lease accessible tems operated by public airport opera-
automobiles. When a provider of taxi tors between the airport and a limited
service purchases or leases a vehicle number of destinations in the area it
other than an automobile, the vehicle serves are subject to the provisions of
is required to be accessible unless the this part for commuter bus systems op-
provider demonstrates equivalency as erated by public entities.
provided in § 37.105 of this part. A pro-
(c) Private jitney or shuttle services
vider of taxi service is not required to
that provide transportation between an
purchase vehicles other than auto-
mobiles in order to have a number of airport and destinations in the area it
accessible vehicles in its fleet. serves in a route-deviation or other
(c) Private entities providing taxi variable mode are subject to the re-
service shall not discriminate against quirements of this part for private en-
individuals with disabilities by actions tities primarily engaged in the busi-
including, but not limited to, refusing ness of transporting people which pro-
to provide service to individuals with vide demand responsive service. They
disabilities who can use taxi vehicles, may meet equivalency requirements by
refusing to assist with the stowing of such means as sharing or pooling ac-
mobility devices, and charging higher cessible vehicles among operators, in a
fares or fees for carrying individuals way that ensures the provision of
with disabilities and their equipment equivalent service.
than are charged to other persons.
§ 37.35 Supplemental service for other
§ 37.31 Vanpools. transportation modes.
Vanpool systems which are operated (a) Transportation service provided
by public entities, or in which public by bus or other vehicle by an intercity
entities own or purchase or lease the commuter or rail operator, as an exten-
vehicles, are subject to the require- sion of or supplement to its rail serv-
ments of this part for demand respon- ice, and which connects an intercity
sive service for the general public oper- rail station and limited other points, is
ated by public entities. A vanpool sys- subject to the requirements of this part
tem in this category is deemed to be for fixed route commuter bus service
providing equivalent service to individ- operated by a public entity.
uals with disabilities if a vehicle that
(b) Dedicated bus service to com-
an individual with disabilities can use
muter rail systems, with through
is made available to and used by a van-
ticketing arrangements and which is
pool in which such an individual choos-
es to participate. available only to users of the com-
muter rail system, is subject to the re-
§ 37.33 Airport transportation systems. quirements of this part for fixed route
(a) Transportation systems operated commuter bus service operated by a
by public airport operators, which pro- public entity.
vide designated public transportation
§ 37.37 Other applications.
and connect parking lots and terminals
or provide transportation among ter- (a) A private entity does not become
minals, are subject to the requirements subject to the requirements of this part
of this part for fixed route or demand for public entities, because it receives
responsive systems, as applicable, oper- an operating subsidy from, is regulated
ated by public entities. Public airports by, or is granted a franchise or permit

which operate fixed route transpor- to operate by a public entity.
407
(b) Shuttle systems and other trans- quirements of this part governing
portation services operated by pri- intercity rail systems.
vately-owned hotels, car rental agen- (h) Private rail systems providing
cies, historical or theme parks, and fixed route or specified public transpor-
other public accommodations are sub- tation service are subject to the re-
ject to the requirements of this part quirements of § 37.107 with respect to
for private entities not primarily en- the acquisition of rail passenger cars.
gaged in the business of transporting Such systems are subject to the re-
people. Either the requirements for de- quirements of the regulations of the
mand responsive or fixed route service Department of Justice implementing
may apply, depending upon the charac- title III of the ADA (28 CFR part 36)
teristics of each individual system of with respect to stations and other fa-
transportation. cilities.
(c) Conveyances used by members of
the public primarily for recreational § 37.39 [Reserved]
purposes rather than for transpor-
tation (e.g., amusement park rides, ski Subpart C—Transportation
lifts, or historic rail cars or trolleys Facilities
operated in museum settings) are not
subject to the requirements of this § 37.41 Construction of transportation
part. Such conveyances are subject to facilities by public entities.
Department of Justice regulations im- (a) A public entity shall construct
plementing title II or title III of the any new facility to be used in providing
ADA (28 CFR part 35 or 36), as applica- designated public transportation serv-
ble. ices so that the facility is readily ac-
(d) Transportation services provided cessible to and usable by individuals
by an employer solely for its own em- with disabilities, including individuals
ployees are not subject to the require- who use wheelchairs. This requirement
ments of this part. Such services are also applies to the construction of a
subject to the regulations of the Equal new station for use in intercity or com-
Employment Opportunity Commission muter rail transportation. For pur-
under title I of the ADA (29 CFR part poses of this section, a facility or sta-
1630) and, with respect to public enti- tion is ‘‘new’’ if its construction begins
ties, the regulations of the Department (i.e., issuance of notice to proceed)
of Justice under title II of the ADA (28 after January 25, 1992, or, in the case of
CFR part 35). intercity or commuter rail stations,
(e) Transportation systems operated after October 7, 1991.
by private clubs or establishments ex- (b) (1) Full compliance with the re-
empted from coverage under title II of quirements of this section is not re-
the Civil Rights Act of 1964 (42 U.S.C. quired where an entity can dem-
2000–a(e)) or religious organizations or onstrate that it is structurally imprac-
entities controlled by religious organi- ticable to meet the requirements. Full
zations are not subject to the require- compliance will be considered struc-
ments of this part. turally impracticable only in those
(f) If a parent private company is not rare circumstances when the unique
primarily engaged in the business of characteristics of terrain prevent the
transporting people, or is not a place of incorporation of accessibility features.
public accommodation, but a sub- (2) If full compliance with this sec-
sidiary company or an operationally tion would be structurally impracti-
distinct segment of the company is pri- cable, compliance with this section is
marily engaged in the business of required to the extent that it is not
transporting people, the transportation structurally impracticable. In that
service provided by the subsidiary or case, any portion of the facility that
segment is subject to the requirements can be made accessible shall be made
of this part for private entities pri- accessible to the extent that it is not
marily engaged in the business of structurally impracticable.
transporting people. (3) If providing accessibility in con-
(g) High-speed rail systems operated formance with this section to individ-
by public entities are subject to the re- uals with certain disabilities (e.g.,
408
those who use wheelchairs) would be (5) Station-based lifts;

structurally impracticable, accessi- (d) Before constructing or altering a
bility shall nonetheless be ensured to platform at a station covered by para-
persons with other types of disabilities graph (c) of this section, at which a
(e.g., those who use crutches or who railroad proposes to use a means other
have sight, hearing, or mental impair- than level-entry boarding, the railroad
ments) in accordance with this section. must meet the following requirements:
(1) If the railroad operator not using
FR 63266, Oct. 30, 2006] level-entry boarding chooses a means
of meeting the performance standard
§ 37.42 Service in an Integrated Set- other than using car-borne lifts, it
ting to Passengers at Intercity, must perform a comparison of the costs
Commuter, and High-Speed Rail (capital, operating, and life-cycle
Station Platforms Constructed or costs) of car-borne lifts and the means
Altered After February 1, 2012. chosen by the railroad operator, as well
(a) In addition to meeting the re- as a comparison of the relative ability
quirements of sections 37.9 and 37.41, an of each of these alternatives to provide
operator of a commuter, intercity, or service to individuals with disabilities
high-speed rail system must ensure, at in an integrated, safe, timely, and reli-
stations that are approved for entry able manner. The railroad operator
into final design or that begin con- must submit a copy of this analysis to
struction or alteration of platforms on FTA or FRA at the time it submits the
or after February 1, 2012, that the fol- plan required by paragraph (d)(2) of
lowing performance standard is met: this section.
individuals with disabilities, including (2) The railroad operator must sub-
individuals who use wheelchairs, must mit a plan to FRA and/or FTA, describ-
have access to all accessible cars avail- ing its proposed means to meet the per-
able to passengers without disabilities formance standard of paragraph (a) of
in each train using the station. this section at that station. The plan
(b) For new or altered stations serv- must demonstrate how boarding equip-
ing commuter, intercity, or high-speed ment or platforms would be deployed,
rail lines or systems, in which no track maintained, and operated; and how per-
passing through the station and adja- sonnel would be trained and deployed
cent to platforms is shared with exist- to ensure that service to individuals
ing freight rail operations, the per- with disabilities is provided in an inte-
formance standard of paragraph (a) of grated, safe, timely, and reliable man-
this section must be met by providing ner.
level-entry boarding to all accessible (3) Before proceeding with con-
cars in each train that serves the sta- structing or modifying a station plat-
tion. form covered by paragraphs (c) and (d)
(c) For new or altered stations serv- of this section, the railroad must ob-
ing commuter, intercity, or high-speed tain approval from the FTA (for com-
rail lines or systems, in which track muter rail systems) or the FRA (for
passing through the station and adja- intercity rail systems). The agencies
cent to platforms is shared with exist- will evaluate the proposed plan and
ing freight rail operations, the railroad may approve, disapprove, or modify it.
operator may comply with the per- The FTA and the FRA may make this
formance standard of paragraph (a) by determination jointly in any situation
use of one or more of the following in which both a commuter rail system
means: and an intercity or high-speed rail sys-
(1) Level-entry boarding; tem use the tracks serving the plat-
(2) Car-borne lifts; form. FTA and FRA will respond to the
(3) Bridge plates, ramps or other ap- railroad’s plan in a timely manner, in
propriate devices; accordance with the timetable set
(4) Mini-high platforms, with mul- forth in paragraphs (d)(3)(i) through
tiple mini-high platforms or multiple (d)(3)(iii) of this paragraph.
train stops, as needed, to permit access (i) FTA/FRA will provide an initial
to all accessible cars available at that written response within 30 days of re-
station; or ceiving a railroad’s written proposal.
409
This response will say either that the form design in which the horizontal
submission is complete or that addi- gap between a car at rest and the plat-
tional information is needed. form is no more than 10 inches on tan-
(ii) Once a complete package, includ- gent track and 13 inches on curves and
ing any requested additional informa- the vertical height of the car floor is
tion, is received, as acknowledged by no more than 5.5 inches above the
FRA/FTA in writing, FRA/FTA will boarding platform. Where the hori-
provide a substantive response accept- zontal gap is more than 3 inches and/or
ing, rejecting, or modifying the pro- the vertical gap is more than 5⁄8 inch,
posal within 120 days. measured when the vehicle is at rest,
(iii) If FTA/FRA needs additional the horizontal and vertical gaps be-
time to consider the railroad’s pro- tween the car floor and the boarding
posal, FRA/FTA will provide a written platform must be mitigated by a bridge
communication to the railroad setting plate, ramp, or other appropriate de-
forth the reasons for the delay and an vice consistent with 49 CFR 38.95(c) and
estimate of the additional time (not to 38.125(c).
exceed an additional 60 days) that FRA/ [76 FR 57935, Sept. 19, 2011]
FTA expect to take to finalize a sub-
stantive response to the proposal. § 37.43 Alteration of transportation fa-
(iv) In reviewing the plan, FRA and cilities by public entities.
FTA will consider factors including, (a)(1) When a public entity alters an
but not limited to, how the proposal existing facility or a part of an existing
maximizes accessibility to individuals facility used in providing designated
with disabilities, any obstacles to the public transportation services in a way
use of a method that could provide bet- that affects or could affect the
ter service to individuals with disabil- usability of the facility or part of the
ities, the safety and reliability of the facility, the entity shall make the al-
approach and related technology pro- terations (or ensure that the alter-
posed to be used, the suitability of the ations are made) in such a manner, to
means proposed to the station and line the maximum extent feasible, that the
and/or system on which it would be altered portions of the facility are
used, and the adequacy of equipment readily accessible to and usable by in-
and maintenance and staff training and dividuals with disabilities, including
deployment. individuals who use wheelchairs, upon
(e) In any situation using a combina- the completion of such alterations.
tion of high and low platforms, a com- (2) When a public entity undertakes
muter or intercity rail operator shall an alteration that affects or could af-
not employ a solution that has the effect the usability of or access to an
fect of channeling passengers into a area of a facility containing a primary
narrow space between the face of the function, the entity shall make the al-
higher-level platform and the edge of teration in such a manner that, to the
the lower platform. maximum extent feasible, the path of
(1) Except as provided in paragraph travel to the altered area and the bath-
(e)(2) of this paragraph, any obstruc- rooms, telephones, and drinking foun-
tions on a platform (mini-high plat- tains serving the altered area are read-
forms, stairwells, elevator shafts, seats ily accessible to and usable by individ-
etc.) shall be set at least six feet back uals with disabilities, including indi-
from the edge of a platform. viduals who use wheelchairs, upon
(2) If the six-foot clearance is not fea- completion of the alterations. Provided,
sible (e.g., where such a clearance that alterations to the path of travel,
would create an insurmountable gap on drinking fountains, telephones and
a mini-high platform or where the bathrooms are not required to be made
physical structure of an existing sta- readily accessible to and usable by in-
tion does not allow such clearance), dividuals with disabilities, including
barriers must be used to prevent the individuals who use wheelchairs, if the
flow of pedestrian traffic through these cost and scope of doing so would be dis-
narrower areas. proportionate.
(f) For purposes of this part, level- (3) The requirements of this para-
entry boarding means a boarding plat- graph also apply to the alteration of
410
existing intercity or commuter rail area. An accessible path of travel may

stations by the responsible person for, include walks and sidewalks, curb
owner of, or person in control of the ramps and other interior or exterior
station. pedestrian ramps, clear floor paths
(4) The requirements of this section through corridors, waiting areas, con-
apply to any alteration which begins courses, and other improved areas,
(i.e., issuance of notice to proceed or parking access aisles, elevators and
work order, as applicable) after Janu- lifts, bridges, tunnels, or other passage-
ary 25, 1992, or, in the case of intercity ways between platforms, or a combina-
and commuter rail stations, after Octo- tion of these and other elements.
ber 7, 1991. (e)(1) Alterations made to provide an
(b) As used in this section, the phrase accessible path of travel to the altered
to the maximum extent feasible applies to area will be deemed disproportionate
the occasional case where the nature of to the overall alteration when the cost
an existing facility makes it impos- exceeds 20 percent of the cost of the al-
sible to comply fully with applicable teration to the primary function area
accessibility standards through a (without regard to the costs of accessi-
planned alteration. In these cir- bility modifications).
cumstances, the entity shall provide
(2) Costs that may be counted as ex-
the maximum physical accessibility
penditures required to provide an ac-
feasible. Any altered features of the fa-
cility or portion of the facility that cessible path of travel include:
can be made accessible shall be made (i) Costs associated with providing an
accessible. If providing accessibility to accessible entrance and an accessible
certain individuals with disabilities route to the altered area (e.g., wid-
(e.g., those who use wheelchairs) would ening doorways and installing ramps);
not be feasible, the facility shall be (ii) Costs associated with making
made accessible to individuals with restrooms accessible (e.g., grab bars,
other types of disabilities (e.g., those enlarged toilet stalls, accessible faucet
who use crutches, those who have im- controls);
paired vision or hearing, or those who (iii) Costs associated with providing
have other impairments). accessible telephones (e.g., relocation
(c) As used in this section, a primary of phones to an accessible height, in-
function is a major activity for which stallation of amplification devices or
the facility is intended. Areas of trans- TDDs);
portation facilities that involve pri- (iv) Costs associated with relocating
mary functions include, but are not an inaccessible drinking fountain.
necessarily limited to, ticket purchase (f)(1) When the cost of alterations
and collection areas, passenger waiting necessary to make a path of travel to
areas, train or bus platforms, baggage the altered area fully accessible is dis-
checking and return areas and employ- proportionate to the cost of the overall
ment areas (except those involving alteration, then such areas shall be
non-occupiable spaces accessed only by made accessible to the maximum ex-
ladders, catwalks, crawl spaces, very tent without resulting in dispropor-
narrow passageways, or freight (non- tionate costs;
passenger) elevators which are fre-
(2) In this situation, the public entity
quented only by repair personnel).
should give priority to accessible ele-
(d) As used in this section, a ‘‘path of
ments that will provide the greatest
travel’’ includes a continuous, unob-
access, in the following order:
structed way of pedestrian passage by
means of which the altered area may (i) An accessible entrance;
be approached, entered, and exited, and (ii) An accessible route to the altered
which connects the altered area with area;
an exterior approach (including side- (iii) At least one accessible restroom
walks, parking areas, and streets), an for each sex or a single unisex restroom
entrance to the facility, and other (where there are one or more rest-
parts of the facility. The term also in- rooms);
cludes the restrooms, telephones, and (iv) Accessible telephones;

drinking fountains serving the altered (v) Accessible drinking fountains;
411
(vi) When possible, other accessible dition to requirements set forth in

elements (e.g., parking, storage, § 37.43 of this part.
alarms). (b) Each public entity shall deter-
(g) If a public entity performs a se- mine which stations on its system are
ries of small alterations to the area key stations. The entity shall identify
served by a single path of travel rather key stations, using the planning and
than making the alterations as part of public participation process set forth
a single undertaking, it shall nonethe- in paragraph (d) of this section, and
less be responsible for providing an ac- taking into consideration the following
cessible path of travel. criteria:
(h)(1) If an area containing a primary (1) Stations where passenger
function has been altered without pro- boardings exceed average station pas-
viding an accessible path of travel to senger boardings on the rail system by
that area, and subsequent alterations at least fifteen percent, unless such a
of that area, or a different area on the station is close to another accessible
same path of travel, are undertaken station;
within three years of the original alter- (2) Transfer stations on a rail line or
ation, the total cost of alteration to between rail lines;
the primary function areas on that (3) Major interchange points with
path of travel during the preceding other transportation modes, including
three year period shall be considered in stations connecting with major park-
determining whether the cost of making facilities, bus terminals, intercity
ing that path of travel is dispropor- or commuter rail stations, passenger
tionate; vessel terminals, or airports;
(4) End stations, unless an end sta-
(2) For the first three years after
tion is close to another accessible sta-
January 26, 1992, only alterations un-
tion; and
dertaken between that date and the
(5) Stations serving major activity
date of the alteration at issue shall be
centers, such as employment or gov-
considered in determining if the cost of
ernment centers, institutions of higher
providing accessible features is dis-
education, hospitals or other major
proportionate to the overall cost of the health care facilities, or other facili-
alteration. ties that are major trip generators for
(3) Only alterations undertaken after individuals with disabilities.
January 26, 1992, shall be considered in (c)(1) Unless an entity receives an ex-
determining if the cost of providing an tension under paragraph (c)(2) of this
accessible path of travel is dispropor- section, the public entity shall achieve
tionate to the overall cost of the alter- accessibility of key stations as soon as
ation. possible, but in no case later than July
26, 1994.
§ 37.45 Construction and alteration of (2) The FTA Administrator may
transportation facilities by private
entities. grant an extension of this completion
date for key station accessibility for a
In constructing and altering transit period up to July 26, 2020, provided that
facilities, private entities shall comply two-thirds of key stations are made ac-
with the regulations of the Department cessible by July 26, 2010. Extensions
of Justice implementing Title III of the may be granted as provided in para-
ADA (28 CFR part 36). graph (e) of this section.
(d) The public entity shall develop a
§ 37.47 Key stations in light and rapid plan for compliance for this section.
rail systems. The plan shall be submitted to the ap-
(a) Each public entity that provides propriate FTA regional office by July
designated public transportation by 26, 1992. (See appendix B to this part for
means of a light or rapid rail system list.)
shall make key stations on its system (1) The public entity shall consult
readily accessible to and usable by in- with individuals with disabilities af-
dividuals with disabilities, including fected by the plan. The public entity
individuals who use wheelchairs. This also shall hold at least one public hear-
requirement is separate from and in ad- ing on the plan and solicit comments
412
on it. The plan submitted to FTA shall tion attributable to the service of each,
document this public participation, in- over the entire period during which the
cluding summaries of the consultation station is made accessible.
with individuals with disabilities and (d) In the case of a station of which
the comments received at the hearing no entity owns more than fifty percent,
and during the comment period. The the owners of the station (other than
plan also shall summarize the public private entity owners) and persons pro-
entity’s responses to the comments and viding intercity or commuter rail serv-
consultation. ice to the station are the responsible
(2) The plan shall establish mile- persons.
stones for the achievement of required (1) Half the responsibility for the sta-
accessibility of key stations, con- tion shall be assumed by the owner(s)
sistent with the requirements of this of the station. The owners shall share
section. this responsibility in proportion to
(e) A public entity wishing to apply their ownership interest in the station,
for an extension of the July 26, 1993, over the period during which the sta-
deadline for key station accessibility tion is made accessible.
shall include a request for an extension (2) The person(s) providing commuter
with its plan submitted to FTA under or intercity rail service to the station
paragraph (d) of this section. Exten- shall assume the other half of the re-
sions may be granted only with respect sponsibility. These persons shall share
to key stations which need extraor- this responsibility. These persons shall
dinarily expensive structural changes share this responsibility for the station
to, or replacement of, existing facili- in a proportion equal to the percentage
ties (e.g., installations of elevators, of all passenger boardings at the sta-
raising the entire passenger platform, tion attributable to the service of each,
or alterations of similar magnitude and over the period during which the sta-
cost). Requests for extensions shall tion is made accessible.
provide for completion of key station (e) Persons who must share responsi-
accessibility within the time limits set bility for station accessibility under
forth in paragraph (c) of this section. paragraphs (c) and (d) of this section
The FTA Administrator may approve, may, by agreement, allocate their re-
approve with conditions, modify, or sponsibility in a manner different from
disapprove any request for an exten- that provided in this section.
sion.
§ 37.51 Key stations in commuter rail
[56 FR 45621, Sept. 6, 1991, as amended at 58 systems.
FR 63102, Nov. 30, 1993; 79 FR 21405, Apr. 16,
2014] (a) The responsible person(s) shall
make key stations on its system read-
§ 37.49 Designation of responsible per- ily accessible to and usable by individ-
son(s) for intercity and commuter uals with disabilities, including indi-
rail stations. viduals who use wheelchairs. This re-
(a) The responsible person(s) des- quirement is separate from and in addi-
ignated in accordance with this section tion to requirements set forth in § 37.43
shall bear the legal and financial re- of this part.
sponsibility for making a key station (b) Each commuter authority shall
accessible in the same proportion as determine which stations on its system
determined under this section. are key stations. The commuter au-
(b) In the case of a station more than thority shall identify key stations,
fifty percent of which is owned by a using the planning and public partici-
public entity, the public entity is the pation process set forth in paragraph
responsible party. (d) of this section, and taking into con-
(c) In the case of a station more than sideration the following criteria:
fifty percent of which is owned by a (1) Stations where passenger
private entity the persons providing boardings exceed average station pas-
commuter or intercity rail service to senger boardings on the rail system by
the station are the responsible parties, at least fifteen percent, unless such a
in a proportion equal to the percentage station is close to another accessible

of all passenger boardings at the sta- station;
413
(2) Transfer stations on a rail line or ager for the purpose of undertaking the
between rail lines; work of making the key station acces-
(3) Major interchange points with sible.
other transportation modes, including (e) Any commuter authority and/or
stations connecting with major park- responsible person(s) wishing to apply
ing facilities, bus terminals, intercity for an extension of the July 26, 1993,
or commuter rail stations, passenger deadline for key station accessibility
vessel terminals, or airports; shall include a request for extension
(4) End stations, unless an end sta- with its plan submitted to under para-
tion is close to another accessible sta- graph (d) of this section. Extensions
tion; and may be granted only in a case where
(5) Stations serving major activity raising the entire passenger platform is
centers, such as employment or gov- the only means available of attaining
ernment centers, institutions of higher accessibility or where other extraor-
education, hospitals or other major dinarily expensive structural changes
health care facilities, or other facili- (e.g., installations of elevators, or al-
ties that are major trip generators for terations of magnitude and cost simi-
individuals with disabilities. lar to installing an elevator or raising
(c)(1) Except as provided in this para- the entire passenger platform) are nec-
graph, the responsible person(s) shall essary to attain accessibility. Requests
achieve accessibility of key stations as for extensions shall provide for comple-
soon as possible, but in no case later tion of key station accessibility within
than July 26, 1994. the time limits set forth in paragraph
(2) The FTA Administrator may (c) of this section. The FTA Adminis-
grant an extension of this deadline for trator may approve, approve with con-
key station accessibility for a period ditions, modify, or disapprove any re-
up to July 26, 2010. Extensions may be quest for an extension.
granted as provided in paragraph (e) of [56 FR 45621, Sept. 6, 1991, as amended at 58
this section. FR 63102, Nov. 30, 1993; 79 FR 21405, Apr. 16,
(d) The commuter authority and re- 2014]
sponsible person(s) for stations in-
volved shall develop a plan for compli- § 37.53 Exception for New York and
ance for this section. This plan shall be Philadelphia.
completed and submitted to FTA by (a) The following agreements entered
July 26, 1992. into in New York, New York, and
(1) The commuter authority and re- Philadelphia, Pennsylvania, contain
sponsible person(s) shall consult with lists of key stations for the public enti-
individuals with disabilities affected by ties that are a party to those agree-
the plan. The commuter authority and ments for those service lines identified
responsible person(s) also shall hold at in the agreements. The identification
least one public hearing on the plan of key stations under these agreements
and solicit comments on it. The plan is deemed to be in compliance with the
shall document this public participa- requirements of this Subpart.
tion, including summaries of the con- (1) Settlement Agreement by and
sultation with individuals with disabil- among Eastern Paralyzed Veterans As-
ities and the comments received at the sociation, Inc., James J. Peters,
hearing and during the comment pe- Terrance Moakley, and Denise
riod. The plan also shall summarize the Figueroa, individually and as rep-
responsible person(s) responses to the resentatives of the class of all persons
comments and consultation. similarly situated (collectively, ‘‘the
(2) The plan shall establish mile- EPVA class representatives’’); and
stones for the achievement of required Metropolitan Transportation Author-
accessibility of key stations, con- ity, New York City Transit Authority,
sistent with the requirements of this and Manhattan and Bronx Surface
section. Transit Operating Authority (October
(3) The commuter authority and re- 4, 1984).
sponsible person(s) of each key station (2) Settlement Agreement by and be-
identified in the plan shall, by mutual tween Eastern Paralyzed Veterans As-
agreement, designate a project man- sociation of Pennsylvania, Inc., and
414
James J. Peters, individually; and Dud- (b) Portions of the facility directly
ley R. Sykes, as Commissioner of the serving the rail system with the earlier
Philadelphia Department of Public completion date; and
Property, and his successors in office (c) An accessible path from common
and the City of Philadelphia (collec- elements of the station to portions of
tively ‘‘the City’’) and Southeastern the facility directly serving the rail
Pennsylvania Transportation Author- system with the earlier completion
ity (June 28, 1989). date.
(b) To comply with §§ 37.47 (b) and (d)
or 37.51 (b) and (d) of this part, the en- § 37.61 Public transportation programs
tities named in the agreements are re- and activities in existing facilities.
quired to use their public participation (a) A public entity shall operate a
and planning processes only to develop designated public transportation pro-
and submit to the FTA Administrator gram or activity conducted in an exist-
plans for timely completion of key sta- ing facility so that, when viewed in its
tion accessibilty, as provided in this entirety, the program or activity is
subpart. readily accessible to and usable by in-
(c) In making accessible the key sta- dividuals with disabilities.
tions identified under the agreements (b) This section does not require a
cited in this section, the entities public entity to make structural
named in the agreements are subject to changes to existing facilities in order
the requirements of § 37.9 of this part. to make the facilities accessible by in-
dividuals who use wheelchairs, unless
§ 37.55 Intercity rail station accessi-
bility. and to the extent required by § 37.43
(with respect to alterations) or §§ 37.47
All intercity rail stations shall be or 37.51 of this part (with respect to
made readily accessible to and usable key stations). Entities shall comply
by individuals with disabilities, includ- with other applicable accessibility re-
ing individuals who use wheelchairs, as quirements for such facilities.
soon as practicable, but in no event
(c) Public entities, with respect to fa-
later than July 26, 2010. This require-
cilities that, as provided in paragraph
ment is separate from and in addition
(b) of this section, are not required to
to requirements set forth in § 37.43 of
be made accessible to individuals who
this part.
use wheelchairs, are not required to
§ 37.57 Required cooperation. provide to such individuals services
made available to the general public at
An owner or person in control of an such facilities when the individuals
intercity or commuter rail station could not utilize or benefit from the
shall provide reasonable cooperation to services.
the responsible person(s) for that sta-
tion with respect to the efforts of the §§ 37.63–37.69 [Reserved]
responsible person to comply with the
requirements of this subpart.
Subpart D—Acquisition of Acces-
§ 37.59 Differences in accessibility sible Vehicles By Public Enti-
completion dates. ties
Where different completion dates for
§ 37.71 Purchase or lease of new non-
accessible stations are established rail vehicles by public entities oper-
under this part for a station or por- ating fixed route systems.
tions of a station (e.g., extensions of
different periods of time for a station (a) Each public entity operating a
which serves both rapid and commuter fixed route system making a solicita-
rail systems), accessibility to the fol- tion after August 25, 1990, to purchase
lowing elements of the station shall be or lease a new bus or other new vehicle
achieved by the earlier of the comple- for use on the system, shall ensure that
tion dates involved: the vehicle is readily accessible to and

(a) Common elements of the station; usable by individuals with disabilities,
415
including individuals who use wheel- which takes one of the following ac-
chairs. tions:
(1) After August 25, 1990, remanufac-
FR 57936, Sept. 19, 2011] tures a bus or other vehicle so as to ex-
tend its useful life for five years or
§ 37.73 Purchase or lease of used non- more or makes a solicitation for such
rail vehicles by public entities oper- remanufacturing; or
ating fixed route systems. (2) Purchases or leases a bus or other
(a) Except as provided elsewhere in vehicle which has been remanufactured
this section, each public entity oper- so as to extend its useful life for five
ating a fixed route system purchasing years or more, where the purchase or
or leasing, after August 25, 1990, a used lease occurs after August 25, 1990, and
bus or other used vehicle for use on the during the period in which the useful
system, shall ensure that the vehicle is life of the vehicle is extended.
readily accessible to and usable by in- (b) Vehicles acquired through the ac-
dividuals with disabilities, including tions listed in paragraph (a) of this sec-
individuals who use wheelchairs. tion shall, to the maximum extent fea-
(b) A public entity may purchase or sible, be readily accessible to and usa-
lease a used vehicle for use on its fixed ble by individuals with disabilities, in-
route system that is not readily acces- cluding individuals who use wheel-
sible to and usable by individuals with chairs.
disabilities if, after making dem- (c) For purposes of this section, it
onstrated good faith efforts to obtain shall be considered feasible to remanu-
an accessible vehicle, it is unable to do facture a bus or other motor vehicle so
so. as to be readily accessible to and usa-
(c) Good faith efforts shall include at ble by individuals with disabilities, in-
least the following steps: cluding individuals who use wheel-
(1) An initial solicitation for used ve- chairs, unless an engineering analysis
hicles specifying that all used vehicles demonstrates that including accessi-
are to be lift-equipped and otherwise bility features required by this part
accessible to and usable by individuals would have a significant adverse effect
with disabilities, or, if an initial solici- on the structural integrity of the vehi-
tation is not used, a documented com- cle.
munication so stating;
(d) If a public entity operates a fixed
(2) A nationwide search for accessible route system, any segment of which is
vehicles, involving specific inquiries to
included on the National Register of
used vehicle dealers and other transit
Historic Places, and if making a vehi-
providers; and
cle of historic character used solely on
(3) Advertising in trade publications
such segment readily accessible to and
and contacting trade associations.
usable by individuals with disabilities
(d) Each public entity purchasing or would significantly alter the historic
leasing used vehicles that are not read-
character of such vehicle, the public
ily accessible to and usable by individ-
entity has only to make (or purchase
uals with disabilities shall retain docu-
or lease a remanufactured vehicle
mentation of the specific good faith ef-
with) those modifications to make the
forts it made for three years from the
vehicle accessible which do not alter
date the vehicles were purchased.
These records shall be made available, the historic character of such vehicle,
on request, to the FTA Administrator in consultation with the National Reg-
and the public. ister of Historic Places.
(e) A public entity operating a fixed
§ 37.75 Remanufacture of non-rail ve- route system as described in paragraph
hicles and purchase or lease of re- (d) of this section may apply in writing
manufactured non-rail vehicles by to the FTA Administrator for a deter-
public entities operating fixed mination of the historic character of
route systems. the vehicle. The FTA Administrator
(a) This section applies to any public shall refer such requests to the Na-
entity operating a fixed route system tional Register of Historic Places, and
416
shall rely on its advice in making de- state program office a certificate that
terminations of the historic character it provides equivalent service meeting
of the vehicle. the standards of paragraph (c) of this
section. Public entities operating de-
§ 37.77 Purchase or lease of new non- mand responsive service receiving
rail vehicles by public entities oper- funds under any other section of the
ating a demand responsive system
for the general public. FT Act shall file the certificate with
the appropriate FTA regional office. A
(a) Except as provided in this section, public entity which does not receive
a public entity operating a demand re- FTA funds shall make such a certifi-
sponsive system for the general public cate and retain it in its files, subject to
making a solicitation after August 25, inspection on request of FTA. All cer-
1990, to purchase or lease a new bus or tificates under this paragraph may be
other new vehicle for use on the sys- made and filed in connection with a
tem, shall ensure that the vehicle is particular procurement or in advance
readily accessible to and usable by in- of a procurement; however, no certifi-
dividuals with disabilities, including cate shall be valid for more than one
individuals who use wheelchairs. year. A copy of the required certificate
(b) If the system, when viewed in its is found in appendix C to this part.
entirety, provides a level of service to (e) The waiver mechanism set forth
individuals with disabilities, including in § 37.71(b)–(g) (unavailability of lifts)
individuals who use wheelchairs, equiv-
of this subpart shall also be available
alent to the level of service it provides
to public entities operating a demand
to individuals without disabilities, it
responsive system for the general pub-
may purchase new vehicles that are
lic.
not readily accessible to and usable by
individuals with disabilities. [56 FR 45621, Sept. 6, 1991, as amended at 79
(c) For purposes of this section, a de- FR 21406, Apr. 16, 2014]
mand responsive system, when viewed
in its entirety, shall be deemed to pro- § 37.79 Purchase or lease of new rail
vehicles by public entities oper-
vide equivalent service if the service ating rapid or light rail systems.
available to individuals with disabil-
ities, including individuals who use Each public entity operating a rapid
wheelchairs, is provided in the most in- or light rail system making a solicita-
tegrated setting appropriate to the tion after August 25, 1990, to purchase
needs of the individual and is equiva- or lease a new rapid or light rail vehi-
lent to the service provided other indi- cle for use on the system shall ensure
viduals with respect to the following that the vehicle is readily accessible to
service characteristics: and usable by individuals with disabil-
(1) Response time; ities, including individuals who use
(2) Fares; wheelchairs.
(3) Geographic area of service;
(4) Hours and days of service; § 37.81 Purchase or lease of used rail
(5) Restrictions or priorities based on vehicles by public entities oper-
ating rapid or light rail systems.
trip purpose;
(6) Availability of information and (a) Except as provided elsewhere in
reservations capability; and this section, each public entity oper-
(7) Any constraints on capacity or ating a rapid or light rail system
service availability. which, after August 25, 1990, purchases
(d) A public entity receiving FTA or leases a used rapid or light rail vehi-
funds under 49 U.S.C. 5311 or a public cle for use on the system shall ensure
entity in a small urbanized area which that the vehicle is readily accessible to
receives FTA funds under 49 U.S.C. 5307 and usable by individuals with disabil-
from a state administering agency ities, including individuals who use
rather than directly from FTA, which wheelchairs.
determines that its service to individ- (b) A public entity may purchase or
uals with disabilities is equivalent to lease a used rapid or light rail vehicle
that provided other persons shall, be- for use on its rapid or light rail system
fore any procurement of an inacces- that is not readily accessible to and us-
sible vehicle, file with the appropriate able by individuals if, after making
417
demonstrated good faith efforts to ob- facture a rapid or light rail vehicle so
tain an accessible vehicle, it is unable as to be readily accessible to and usa-
to do so. ble by individuals with disabilities, in-
(c) Good faith efforts shall include at cluding individuals who use wheel-
least the following steps: chairs, unless an engineering analysis
(1) The initial solicitation for used demonstrates that doing so would have
vehicles made by the public entity a significant adverse effect on the
specifying that all used vehicles were structural integrity of the vehicle.
to be accessible to and usable by indi- (d) If a public entity operates a rapid
viduals with disabilities, or, if a solici-
or light rail system any segment of
tation is not used, a documented com-
which is included on the National Reg-
munication so stating;
(2) A nationwide search for accessible ister of Historic Places and if making a
vehicles, involving specific inquiries to rapid or light rail vehicle of historic
manufacturers and other transit pro- character used solely on such segment
viders; and readily accessible to and usable by in-
(3) Advertising in trade publications dividuals with disabilities would sig-
and contacting trade associations. nificantly alter the historic character
(d) Each public entity purchasing or of such vehicle, the public entity need
leasing used rapid or light rail vehicles only make (or purchase or lease a re-
that are not readily accessible to and manufactured vehicle with) those
usable by individuals with disabilities modifications that do not alter the his-
shall retain documentation of the spe- toric character of such vehicle.
cific good faith efforts it made for (e) A public entity operating a fixed
three years from the date the vehicles route system as described in paragraph
were purchased. These records shall be (d) of this section may apply in writing
made available, on request, to the FTA to the FTA Administrator for a deter-
Administrator and the public. mination of the historic character of
§ 37.83 Remanufacture of rail vehicles the vehicle. The FTA Administrator
and purchase or lease of remanu- shall refer such requests to the Na-
factured rail vehicles by public en- tional Register of Historic Places and
tities operating rapid or light rail shall rely on its advice in making a de-
systems. termination of the historic character
(a) This section applies to any public of the vehicle.
entity operating a rapid or light rail
system which takes one of the fol- § 37.85 Purchase or lease of new inter-
lowing actions: city and commuter rail cars.
(1) After August 25, 1990, remanufac- Amtrak or a commuter authority
tures a light or rapid rail vehicle so as making a solicitation after August 25,
to extend its useful life for five years 1990, to purchase or lease a new inter-
or more or makes a solicitation for city or commuter rail car for use on
such remanufacturing; the system shall ensure that the vehi-
(2) Purchases or leases a light or cle is readily accessible to and usable
rapid rail vehicle which has been re- by individuals with disabilities, includ-
manufactured so as to extend its useful
ing individuals who use wheelchairs.
life for five years or more, where the
purchase or lease occurs after August § 37.87 Purchase or lease of used inter-
25, 1990, and during the period in which city and commuter rail cars.
the useful life of the vehicle is ex-
tended. (a) Except as provided elsewhere in
(b) Vehicles acquired through the ac- this section, Amtrak or a commuter
tions listed in paragraph (a) of this sec- authority purchasing or leasing a used
tion shall, to the maximum extent fea- intercity or commuter rail car after
sible, be readily accessible to and usa- August 25, 1990, shall ensure that the
ble by individuals with disabilities, in- car is readily accessible to and usable
cluding individuals who use wheel- by individuals with disabilities, includ-
chairs. ing individuals who use wheelchairs.
(c) For purposes of this section, it (b) Amtrak or a commuter authority

shall be considered feasible to remanu- may purchase or lease a used intercity
418
or commuter rail car that is not read- § 37.89 Remanufacture of intercity and
ily accessible to and usable by individ- commuter rail cars and purchase or
uals if, after making demonstrated lease of remanufactured intercity
good faith efforts to obtain an acces- and commuter rail cars.
sible vehicle, it is unable to do so. (a) This section applies to Amtrak or
(c) Good faith efforts shall include at a commuter authority which takes one
least the following steps: of the following actions:
(1) An initial solicitation for used ve- (1) Remanufactures an intercity or
hicles specifying that all used vehicles commuter rail car so as to extend its
accessible to and usable by individuals useful life for ten years or more;
with disabilities; (2) Purchases or leases an intercity
(2) A nationwide search for accessible or commuter rail car which has been
vehicles, involving specific inquiries to remanufactured so as to extend its use-
used vehicle dealers and other transit ful life for ten years or more.
providers; and (b) Intercity and commuter rail cars
(3) Advertising in trade publications listed in paragraph (a) of this section
and contacting trade associations. shall, to the maximum extent feasible,
(d) When Amtrak or a commuter au- be readily accessible to and usable by
thority leases a used intercity or com- individuals with disabilities, including
muter rail car for a period of seven individuals who use wheelchairs.
days or less, Amtrak or the commuter (c) For purposes of this section, it
authority may make and document shall be considered feasible to remanu-
good faith efforts as provided in this facture an intercity or commuter rail
paragraph instead of in the ways pro- car so as to be readily accessible to and
vided in paragraph (c) of this section: usable by individuals with disabilities,
(1) By having and implementing, in including individuals who use wheel-
its agreement with any intercity rail- chairs, unless an engineering analysis
road or commuter authority that demonstrates that remanufacturing
serves as a source of used intercity or the car to be accessible would have a
commuter rail cars for a lease of seven significant adverse effect on the struc-
days or less, a provision requiring that tural integrity of the car.
the lessor provide all available acces- § 37.91 Wheelchair locations and food
sible rail cars before providing any in- service on intercity rail trains.
accessible rail cars.
(a) As soon as practicable, but in no
(2) By documenting that, when there
event later than July 26, 1995, each per-
is more than one source of intercity or
son providing intercity rail service
commuter rail cars for a lease of seven
shall provide on each train a number of
days or less, the lessee has obtained all
spaces—
available accessible intercity or com-
(1) To park wheelchairs (to accommo-
muter rail cars from all sources before
date individuals who wish to remain in
obtaining inaccessible intercity or
their wheelchairs) equal to not less
commuter rail cars from any source.
than one half of the number of single
(e) Amtrak and commuter authori- level rail passenger coaches in the
ties purchasing or leasing used inter- train; and
city or commuter rail cars that are not (2) To fold and store wheelchairs (to
readily accessible to and usable by in- accommodate individuals who wish to
dividuals with disabilities shall retain transfer to coach seats) equal to not
documentation of the specific good less than one half the number of single
faith efforts that were made for three level rail passenger coaches in the
years from the date the cars were pur- train.
chased. These records shall be made (b) As soon as practicable, but in no
available, on request, to the Federal event later than July 26, 2000, each per-
Railroad Administration or FTA Ad- son providing intercity rail service
ministrator, as applicable. These shall provide on each train a number of
records shall be made available to the spaces—
public, on request. (1) To park wheelchairs (to accommo-
[56 FR 45621, Sept. 6, 1991, as amended at 58 date individuals who wish to remain in
FR 63102, Nov. 30, 1993] their wheelchairs) equal to not less
419
than the total number of single level individuals who use wheelchairs, as
rail passenger coaches in the train; and soon as practicable but in no case later
(2) To fold and store wheelchairs (to than July 25, 1995.
accommodate individuals who wish to
transfer to coach seats) equal to not § 37.95 Ferries and other passenger
less than the total number of single vessels operated by public entities.
level rail passenger coaches in the [Reserved]
train.
(c) In complying with paragraphs (a) §§ 37.97–37.99 [Reserved]
and (b) of this section, a person pro-
viding intercity rail service may not Subpart E—Acquisition of Acces-
provide more than two spaces to park sible Vehicles by Private Enti-
wheelchairs nor more than two spaces ties
to fold and store wheelchairs in any
one coach or food service car. § 37.101 Purchase or lease of vehicles
(d) Unless not practicable, a person by private entities not primarily en-
providing intercity rail transportation gaged in the business of trans-
shall place an accessible car adjacent porting people.
to the end of a single level dining car (a) Application. This section applies
through which an individual who uses a to all purchases or leases of vehicles by
wheelchair may enter. private entities which are not pri-
(e) On any train in which either a marily engaged in the business of
single level or bi-level dining car is transporting people, in which a solici-
used to provide food service, a person tation for the vehicle is made after Au-
providing intercity rail service shall gust 25, 1990.
provide appropriate aids and services
(b) Fixed Route System. Vehicle Capac-
to ensure that equivalent food service
ity Over 16. If the entity operates a
is available to individuals with disabil-
fixed route system and purchases or
ities, including individuals who use
leases a vehicle with a seating capacity
wheelchairs, and to passengers trav-
eling with such individuals. Appro- of over 16 passengers (including the
priate auxiliary aids and services in- driver) for use on the system, it shall
clude providing a hard surface on ensure that the vehicle is readily ac-
which to eat. cessible to and usable by individuals
(f) This section does not require the with disabilities, including individuals
provision of securement devices on who use wheelchairs.
intercity rail cars. (c) Fixed Route System. Vehicle Capac-
ity of 16 or Fewer. If the entity operates
§ 37.93 One car per train rule. a fixed route system and purchases or
(a) The definition of accessible for leases a vehicle with a seating capacity
purposes of meeting the one car per of 16 or fewer passengers (including the
train rule is spelled out in the applica- driver) for use on the system, it shall
ble subpart for each transportation ensure that the vehicle is readily ac-
system type in part 38 of this title. cessible to and usable by individuals
(b) Each person providing intercity with disabilities, including individuals
rail service and each commuter rail au- who use wheelchairs, unless the sys-
thority shall ensure that, as soon as tem, when viewed in its entirety, meets
practicable, but in no event later than the standard for equivalent service of
July 26, 1995, that each train has one § 37.105 of this part.
car that is readily accessible to and us- (d) Demand Responsive System, Vehicle
able by individuals with disabilities, Capacity Over 16. If the entity operates
including individuals who use wheel- a demand responsive system, and pur-
chairs. chases or leases a vehicle with a seat-
(c) Each public entity providing light ing capacity of over 16 passengers (in-
or rapid rail service shall ensure that cluding the driver) for use on the sys-
each train, consisting of two or more tem, it shall ensure that the vehicle is
vehicles, includes at least one car that readily accessible to and usable by in-
is readily accessible to and usable by dividuals with disabilities, including

individuals with disabilities, including individuals who use wheelchairs, unless
420
the system, when viewed in its en- tem, and purchases or leases a new van
tirety, meets the standard for equiva- with a seating capacity of fewer than
lent service of § 37.105 of this part. eight persons including the driver (the
(e) Demand Responsive System, Vehicle solicitation for the vehicle being made
Capacity of 16 or Fewer. Entities pro- after February 25, 1992), the entity
viding demand responsive transpor- shall ensure that the vehicle is readily
tation covered under this section are accessible to and usable by individuals
not specifically required to ensure that with disabilities, including individuals
new vehicles with seating capacity of who use wheelchairs, unless the sys-
16 or fewer are accessible to individuals tem, when viewed in its entirety, meets
with wheelchairs. These entities are re- the standard for equivalent service of
quired to ensure that their systems, § 37.105 of this part.
when viewed in their entirety, meet
the equivalent service requirements of FR 57936, Sept. 19, 2011]
§§ 37.171 and 37.105, regardless of wheth-
er or not the entities purchase a new § 37.105 Equivalent service standard.
vehicle.
For purposes of §§ 37.101 and 37.103 of
[56 FR 45621, Sept. 6, 1991, as amended at 61 this part, a fixed route system or de-
FR 25416, May 21, 1996] mand responsive system, when viewed
§ 37.103 Purchase or lease of new non- in its entirety, shall be deemed to pro-
rail vehicles by private entities pri- vide equivalent service if the service
marily engaged in the business of available to individuals with disabil-
transporting people. ities, including individuals who use
(a) Application. This section applies wheelchairs, is provided in the most in-
to all acquisitions of new vehicles by tegrated setting appropriate to the
private entities which are primarily needs of the individual and is equiva-
engaged in the business of transporting lent to the service provided other indi-
people and whose operations affect viduals with respect to the following
commerce, in which a solicitation for service characteristics:
the vehicle is made (except as provided (a) (1) Schedules/headways (if the sys-
in paragraph (d) of this section) after tem is fixed route);
August 25, 1990. (2) Response time (if the system is
(b) Fixed route systems. If the entity demand responsive);
operates a fixed route system, and pur- (b) Fares;
chases or leases a new vehicle other (c) Geographic area of service;
than an automobile, a van with a seat- (d) Hours and days of service;
ing capacity of less than eight persons (e) Availability of information;
(including the driver), it shall ensure (f) Reservations capability (if the
that the vehicle is readily accessible to system is demand responsive);
and usable by individuals with disabil- (g) Any constraints on capacity or
ities, including individuals who use service availability;
wheelchairs. (h) Restrictions priorities based on
(c) Demand responsive systems. If the trip purpose (if the system is demand
entity operates a demand responsive responsive).
system, and purchases or leases a new
vehicle other than an automobile, a § 37.107 Acquisition of passenger rail
van with a seating capacity of less cars by private entities primarily
than eight persons (including the driv- engaged in the business of trans-
er), it shall ensure that the vehicle is porting people.
readily accessible to and usable by in- (a) A private entity which is pri-
dividuals with disabilities, including marily engaged in the business of
individuals who use wheelchairs, unless transporting people and whose oper-
the system, when viewed in its en- ations affect commerce, which makes a
tirety, meets the standard for equiva- solicitation after February 25, 1992, to
lent service of § 37.105 of this part. purchase or lease a new rail passenger
(d) Vans with a capacity of fewer than car to be used in providing specified
8 persons. If the entity operates either public transportation, shall ensure

a fixed route or demand responsive sys- that the car is readily accessible to,
421
and usable by, individuals with disabil- § 37.109 Ferries and other passenger
ities, including individuals who use vessels operated by private entities.
wheelchairs. The accessibility stand- [Reserved]
ards in part 38 of this title which apply
depend upon the type of service in §§ 37.111–37.119 [Reserved]
which the car will be used.
(b) Except as provided in paragraph Subpart F—Paratransit as a Com-
(c) of this section, a private entity plement to Fixed Route Serv-
which is primarily engaged in trans-
porting people and whose operations af-
ice
fect commerce, which remanufactures § 37.121 Requirement for comparable
a rail passenger car to be used in pro- complementary paratransit service.
viding specified public transportation
to extend its useful life for ten years or (a) Except as provided in paragraph
more, or purchases or leases such a re- (c) of this section, each public entity
manufactured rail car, shall ensure operating a fixed route system shall
that the rail car, to the maximum ex- provide paratransit or other special
tent feasible, is made readily accessible service to individuals with disabilities
to and usable by individuals with dis- that is comparable to the level of serv-
abilities, including individuals who use ice provided to individuals without dis-
wheelchairs. For purposes of this para- abilities who use the fixed route sys-
graph, it shall be considered feasible to tem.
remanufacture a rail passenger car to (b) To be deemed comparable to fixed
be readily accessible to and usable by route service, a complementary para-
individuals with disabilities, including transit system shall meet the require-
individuals who use wheelchairs, unless ments of §§ 37.123–37.133 of this subpart.
an engineering analysis demonstrates The requirement to comply with
that doing so would have a significant § 37.131 may be modified in accordance
adverse effect on the structural integ- with the provisions of this subpart re-
rity of the car.
lating to undue financial burden.
(c) Compliance with paragraph (b) of
(c) Requirements for complementary
this section is not required to the ex-
tent that it would significantly alter paratransit do not apply to commuter
the historic or antiquated character of bus, commuter rail, or intercity rail
a historic or antiquated rail passenger systems.
car, or a rail station served exclusively
§ 37.123 ADA paratransit eligibility:
by such cars, or would result in the
Standards.
violation of any rule, regulation,
standard or order issued by the Sec- (a) Public entities required by § 37.121
retary under the Federal Railroad of this subpart to provide complemen-
Safety Act of 1970. For purposes of this tary paratransit service shall provide
section, a historic or antiquated rail the service to the ADA paratransit eli-
passenger car means a rail passenger gible individuals described in para-
car— graph (e) of this section.
(1) Which is not less than 30 years old (b) If an individual meets the eligi-
at the time of its use for transporting bility criteria of this section with re-
individuals; spect to some trips but not others, the
(2) The manufacturer of which is no individual shall be ADA paratransit el-
longer in the business of manufac- igible only for those trips for which he
turing rail passenger cars; and or she meets the criteria.
(3) Which—
(c) Individuals may be ADA para-
(i) Has a consequential association
transit eligible on the basis of a perma-
with events or persons significant to
the past; or nent or temporary disability.
(ii) Embodies, or is being restored to (d) Public entities may provide com-
embody, the distinctive characteristics plementary paratransit service to per-
of a type of rail passenger car used in sons other than ADA paratransit eligi-
the past, or to represent a time period ble individuals. However, only the cost
which has passed. of service to ADA paratransit eligible
422
individuals may be considered in a pub- (3) Any individual with a disability

lic entity’s request for an undue finan- who has a specific impairment-related
cial burden waiver under §§ 37.151–37.155 condition which prevents such indi-
of this part. vidual from traveling to a boarding lo-
(e) The following individuals are ADA cation or from a disembarking location
paratransit eligible: on such system.
(1) Any individual with a disability (i) Only a specific impairment-re-
who is unable, as the result of a phys- lated condition which prevents the in-
ical or mental impairment (including a dividual from traveling to a boarding
vision impairment), and without the location or from a disembarking loca-
assistance of another individual (ex- tion is a basis for eligibility under this
cept the operator of a wheelchair lift or paragraph. A condition which makes
other boarding assistance device), to traveling to boarding location or from
board, ride, or disembark from any ve- a disembarking location more difficult
hicle on the system which is readily ac- for a person with a specific impair-
cessible to and usable individuals with ment-related condition than for an in-
disabilities. dividual who does not have the condi-
(2) Any individual with a disability tion, but does not prevent the travel, is
who needs the assistance of a wheel- not a basis for eligibility under this
chair lift or other boarding assistance paragraph.
device and is able, with such assist- (ii) Architectural barriers not under
ance, to board, ride and disembark the control of the public entity pro-
from any vehicle which is readily ac- viding fixed route service and environ-
cessible to and usable by individuals mental barriers (e.g., distance, terrain,
with disabilities if the individual wants weather) do not, standing alone, form a
to travel on a route on the system dur- basis for eligibility under this para-
ing the hours of operation of the sys-
graph. The interaction of such barriers
tem at a time, or within a reasonable
with an individual’s specific impair-
period of such time, when such a vehi-
ment-related condition may form a
cle is not being used to provide des-
basis for eligibility under this para-
ignated public transportation on the
graph, if the effect is to prevent the in-
route.
dividual from traveling to a boarding
(i) An individual is eligible under this
location or from a disembarking loca-
paragraph with respect to travel on an
tion.
otherwise accessible route on which
the boarding or disembarking location (f) Individuals accompanying an ADA
which the individual would use is one paratransit eligible individual shall be
at which boarding or disembarking provided service as follows:
from the vehicle is precluded as pro- (1) One other individual accom-
vided in § 37.167(g) of this part. panying the ADA paratransit eligible
(ii) An individual using a common individual shall be provided service—
wheelchair is eligible under this para- (i) If the ADA paratransit eligible in-
graph if the individual’s wheelchair dividual is traveling with a personal
cannot be accommodated on an exist- care attendant, the entity shall provide
ing vehicle (e.g., because the vehicle’s service to one other individual in addi-
lift does not meet the standards of part tion to the attendant who is accom-
38 of this title), even if that vehicle is panying the eligible individual;
accessible to other individuals with (ii) A family member or friend is re-
disabilities and their mobility wheel- garded as a person accompanying the
chairs. eligible individual, and not as a per-
(iii) With respect to rail systems, an sonal care attendant, unless the family
individual is eligible under this para- member or friend registered is acting
graph if the individual could use an ac- in the capacity of a personal care at-
cessible rail system, but— tendant;
(A) There is not yet one accessible (2) Additional individuals accom-
car per train on the system; or panying the ADA paratransit eligible
(B) Key stations have not yet been individual shall be provided service,
made accessible. provided that space is available for
423
them on the paratransit vehicle car- which individuals who are denied eligi-
rying the ADA paratransit eligible in- bility can obtain review of the denial.
dividual and that transportation of the (1) The entity may require that an
additional individuals will not result in appeal be filed within 60 days of the de-
a denial of service to ADA paratransit nial of an individual’s application.
eligible individuals; (2) The process shall include an op-
(3) In order to be considered as ‘‘ac- portunity to be heard and to present
companying’’ the eligible individual for information and arguments, separation
purposes of this paragraph (f), the of functions (i.e., a decision by a person
other individual(s) shall have the same not involved with the initial decision
origin and destination as the eligible to deny eligibility), and written notifi-
individual. cation of the decision, and the reasons
for it.
§ 37.125 ADA paratransit eligibility: (3) The entity is not required to pro-
Process. vide paratransit service to the indi-
Each public entity required to pro- vidual pending the determination on
vide complementary paratransit serv- appeal. However, if the entity has not
ice by § 37.121 of this part shall estab- made a decision within 30 days of the
lish a process for determining ADA completion of the appeal process, the
paratransit eligibility. entity shall provide paratransit service
(a) The process shall strictly limit from that time until and unless a deci-
ADA paratransit eligibility to individ- sion to deny the appeal is issued.
uals specified in § 37.123 of this part. (h) The entity may establish an ad-
(b) All information about the process, ministrative process to suspend, for a
materials necessary to apply for eligi- reasonable period of time, the provi-
bility, and notices and determinations sion of complementary paratransit
concerning eligibility shall be made service to ADA eligible individuals who
available in accessible formats, upon establish a pattern or practice of miss-
request. ing scheduled trips.
(c) If, by a date 21 days following the (1) Trips missed by the individual for
submission of a complete application, reasons beyond his or her control (in-
the entity has not made a determina- cluding, but not limited to, trips which
tion of eligibility, the applicant shall are missed due to operator error) shall
be treated as eligible and provided not be a basis for determining that
service until and unless the entity de- such a pattern or practice exists.
nies the application. (2) Before suspending service, the en-
(d) The entity’s determination con- tity shall take the following steps:
cerning eligibility shall be in writing. (i) Notify the individual in writing
If the determination is that the indi- that the entity proposes to suspend
vidual is ineligible, the determination service, citing with specificity the
shall state the reasons for the finding. basis of the proposed suspension and
(e) The public entity shall provide setting forth the proposed sanction.
documentation to each eligible indi- (ii) Provide the individual an oppor-
vidual stating that he or she is ‘‘ADA tunity to be heard and to present infor-
Paratransit Eligible.’’ The documenta- mation and arguments;
tion shall include the name of the eli- (iii) Provide the individual with writ-
gible individual, the name of the tran- ten notification of the decision and the
sit provider, the telephone number of reasons for it.
the entity’s paratransit coordinator, (3) The appeals process of paragraph
an expiration date for eligibility, and (g) of this section is available to an in-
any conditions or limitations on the dividual on whom sanctions have been
individual’s eligibility including the imposed under this paragraph. The
use of a personal care attendant. sanction is stayed pending the outcome
(f) The entity may require recertifi- of the appeal.
cation of the eligibility of ADA para- (i) In applications for ADA para-
transit eligible individuals at reason- transit eligibility, the entity may re-
able intervals. quire the applicant to indicate whether
(g) The entity shall establish an ad- or not he or she travels with a personal
ministrative appeal process through care attendant.
424
§ 37.127 Complementary paratransit bus service or paratransit feeder serv-

service for visitors. ice to an accessible fixed route, where
(a) Each public entity required to such service enables the individual to
provide complementary paratransit use the fixed route bus system for his
service under § 37.121 of this part shall or her trip.
make the service available to visitors (c) Complementary paratransit serv-
as provided in this section. ice for ADA eligible persons described
(b) For purposes of this section, a vis- in § 37.123(e)(3) of this part also may be
itor is an individual with disabilities provided by paratransit feeder service
who does not reside in the jurisdic- to and/or from an accessible fixed
tion(s) served by the public entity or route.
other entities with which the public
entity provides coordinated com- § 37.131 Service criteria for com-
plementary paratransit.
plementary paratransit service within
a region. The following service criteria apply
(c) Each public entity shall treat as to complementary paratransit required
eligible for its complementary para- by § 37.121 of this part.
transit service all visitors who present (a) Service Area—(1) Bus. (i) The enti-
documentation that they are ADA ty shall provide complementary para-
paratransit eligible, under the criteria transit service to origins and destina-
of § 37.125 of this part, in the jurisdictions within corridors with a width of
tion in which they reside. three-fourths of a mile on each side of
(d) With respect to visitors with dis- each fixed route. The corridor shall in-
abilities who do not present such docu- clude an area with a three-fourths of a
mentation, the public entity may re- mile radius at the ends of each fixed
quire the documentation of the individ- route.
ual’s place of residence and, if the indi- (ii) Within the core service area, the
vidual’s disability is not apparent, of entity also shall provide service to
his or her disability. The entity shall small areas not inside any of the cor-
provide paratransit service to individ- ridors but which are surrounded by cor-
uals with disabilities who qualify as ridors.
visitors under paragraph (b) of this sec- (iii) Outside the core service area,
tion. The entity shall accept a certifi- the entity may designate corridors
cation by such individuals that they with widths from three-fourths of a
are unable to use fixed route transit. mile up to one and one half miles on
(e) A public entity shall make the each side of a fixed route, based on
service to a visitor required by this local circumstances.
section available for any combination (iv) For purposes of this paragraph,
of 21 days during any 365-day period be- the core service area is that area in
ginning with the visitor’s first use of which corridors with a width of three-
the service during such 365-day period. fourths of a mile on each side of each
In no case shall the public entity re- fixed route merge together such that,
quire a visitor to apply for or receive with few and small exceptions, all ori-
eligibility certification from the public gins and destinations within the area
entity before receiving the service re- would be served.
quired by this section. (2) Rail. (i) For rail systems, the serv-
[56 FR 45621, Sept. 6, 1991, as amended at 61 ice area shall consist of a circle with a
FR 25416, May 21, 1996] radius of 3⁄4 of a mile around each sta-
tion.
§ 37.129 Types of service. (ii) At end stations and other sta-
(a) Except as provided in this section, tions in outlying areas, the entity may
complementary paratransit service for designate circles with radii of up to 11⁄2
ADA paratransit eligible persons shall miles as part of its service area, based
be origin-to-destination service. on local circumstances.
(b) Complementary paratransit serv- (3) Jurisdictional boundaries. Notwith-
ice for ADA paratransit eligible per- standing any other provision of this
sons described in § 37.123(e)(2) of this paragraph, an entity is not required to

part may also be provided by on-call provide paratransit service in an area
425
outside the boundaries of the jurisdic- (2) The fares for individuals accom-
tion(s) in which it operates, if the enti- panying ADA paratransit eligible indi-
ty does not have legal authority to op- viduals, who are provided service under
erate in that area. The entity shall § 37.123 (f) of this part, shall be the
take all practicable steps to provide same as for the ADA paratransit eligi-
paratransit service to any part of its ble individuals they are accompanying.
service area. (3) A personal care attendant shall
(b) Response time. The entity shall not be charged for complementary
schedule and provide paratransit serv- paratransit service.
ice to any ADA paratransit eligible (4) The entity may charge a fare
person at any requested time on a par- higher than otherwise permitted by
ticular day in response to a request for this paragraph to a social service agen-
service made the previous day. Res- cy or other organization for agency
ervations may be taken by reservation
trips (i.e., trips guaranteed to the orga-
agents or by mechanical means.
nization).
(1) The entity shall make reservation
(d) Trip purpose restrictions. The enti-
service available during at least all
ty shall not impose restrictions or pri-
normal business hours of the entity’s
orities based on trip purpose.
administrative offices, as well as dur-
ing times, comparable to normal busi- (e) Hours and days of service. The com-
ness hours, on a day when the entity’s plementary paratransit service shall be
offices are not open before a service available throughout the same hours
day. and days as the entity’s fixed route
(2) The entity may negotiate pickup service.
times with the individual, but the enti- (f) Capacity constraints. The entity
ty shall not require an ADA para- shall not limit the availability of com-
transit eligible individual to schedule a plementary paratransit service to ADA
trip to begin more than one hour before paratransit eligible individuals by any
or after the individual’s desired depar- of the following:
ture time. (1) Restrictions on the number of
(3) The entity may use real-time trips an individual will be provided;
scheduling in providing complemen- (2) Waiting lists for access to the
tary paratransit service. service; or
(4) The entity may permit advance (3) Any operational pattern or prac-
reservations to be made up to 14 days tice that significantly limits the avail-
in advance of an ADA paratransit eligi- ability of service to ADA paratransit
ble individual’s desired trips. When an eligible persons.
entity proposes to change its reserva- (i) Such patterns or practices in-
tions system, it shall comply with the clude, but are not limited to, the fol-
public participation requirements lowing:
equivalent to those of § 37.137 (b) and (A) Substantial numbers of signifi-
(c). cantly untimely pickups for initial or
(c) Fares. The fare for a trip charged return trips;
to an ADA paratransit eligible user of
(B) Substantial numbers of trip deni-
the complementary paratransit service
als or missed trips;
shall not exceed twice the fare that
would be charged to an individual pay- (C) Substantial numbers of trips with
ing full fare (i.e., without regard to dis- excessive trip lengths.
counts) for a trip of similar length, at (ii) Operational problems attrib-
a similar time of day, on the entity’s utable to causes beyond the control of
fixed route system. the entity (including, but not limited
(1) In calculating the full fare that to, weather or traffic conditions affect-
would be paid by an individual using ing all vehicular traffic that were not
the fixed route system, the entity may anticipated at the time a trip was
include transfer and premium charges scheduled) shall not be a basis for de-
applicable to a trip of similar length, termining that such a pattern or prac-
at a similar time of day, on the fixed tice exists.

route system.
426
(g) Additional service. Public entities joint certification under this para-
may provide complementary paragraph. The requirements of §§ 37.137 (a)
transit service to ADA paratransit eli- and (b), 37.138 and 37.139 do not apply
gible individuals exceeding that pro- when a certification is submitted under
vided for in this section. However, only this paragraph.
the cost of service provided for in this (2) In the event of any change in cir-
section may be considered in a public cumstances that results in an entity
entity’s request for an undue financial which has submitted a certification of
burden waiver under §§ 37.151–37.155 of continued compliance falling short of
this part. compliance with §§ 37.121–37.133, the en-
[56 FR 45621, Sept. 6, 1991, as amended at 61 tity shall immediately notify FTA in
FR 25416, May 21, 1996; 71 FR 63266, Oct. 30, writing of the problem. In this case,
2006] the entity shall also file a plan update
meeting the requirements of §§ 37.137–
§ 37.133 Subscription service. 37.139 of this part on the next following
(a) This part does not prohibit the January 26 and in each succeeding year
use of subscription service by public until the entity returns to full compli-
entities as part of a complementary ance.
paratransit system, subject to the limi- (3) An entity that has demonstrated
tations in this section. undue financial burden to the FTA
(b) Subscription service may not ab- shall file a plan update meeting the re-
sorb more than fifty percent of the quirements of §§ 37.137–37.139 of this
number of trips available at a given part on each January 26 until full com-
time of day, unless there is non-sub- pliance with §§ 37.121–37.133 is attained.
scription capacity. (4) If FTA reasonably believes that
(c) Notwithstanding any other provi- an entity may not be fully complying
sion of this part, the entity may estab- with all service criteria, FTA may re-
lish waiting lists or other capacity con- quire the entity to provide an annual
straints and trip purpose restrictions update to its plan.
or priorities for participation in the (d) Phase-in of implementation. Each
subscription service only. plan shall provide full compliance by
no later than January 26, 1997, unless
§ 37.135 Submission of paratransit
plan. the entity has received a waiver based
on undue financial burden. If the date
(a) General. Each public entity oper- for full compliance specified in the
ating fixed route transportation serv- plan is after January 26, 1993, the plan
ice, which is required by § 37.121 to pro- shall include milestones, providing for
vide complementary paratransit serv- measured, proportional progress to-
ice, shall develop a paratransit plan. ward full compliance.
(b) Initial submission. Except as pro- (e) Plan implementation. Each entity
vided in § 37.141 of this part, each entity shall begin implementation of its plan
shall submit its initial plan for compli- on January 26, 1992.
ance with the complementary para-
(f) Submission locations. An entity
transit service provision by January 26,
shall submit its plan to one of the fol-
1992, to the appropriate location identi-
lowing offices, as appropriate:
fied in paragraph (f) of this section.
(c) Annual Updates. Except as pro- (1) The individual state admin-
vided in this paragraph, each entity istering agency, if it is—
shall submit an annual update to its (i) A recipient of funding under 49
plan on January 26 of each succeeding U.S.C. 5311;
year. (ii) A small urbanized area recipient
(1) If an entity has met and is con- of funding under 49 U.S.C. 5307 adminis-
tinuing to meet all requirements for tered by the State;
complementary paratransit in §§ 37.121– (iii) A participant in a coordinated
37.133 of this part, the entity may sub- plan, in which all of the participating
mit to FTA an annual certification of entities are eligible to submit their
continued compliance in lieu of a plan plans to the State; or
update. Entities that have submitted a (2) The FTA Regional Office (as listed
joint plan under § 37.141 may submit a in appendix B to this part) for all other
427
entities required to submit a para- of the hearing, including advertisement

transit plan. This includes an FTA rein appropriate media, such as news-
cipient under 49 U.S.C. 5307; entities papers of general and special interest
submitting a joint plan (unless they circulation and radio announcements;
meet the requirements of paragraph and
(f)(1)(iii) of this section), and a public (5) Special requirements. If the entity
entity not an FTA recipient. intends to phase-in its paratransit
[56 FR 45621, Sept. 6, 1991, as amended at 61 service over a multi-year period, or re-
FR 25416, May 21, 1996; 61 FR 26468, May 28, quest a waiver based on undue finan-
1996; 79 FR 21406, Apr. 16, 2014] cial burden, the public hearing shall af-
ford the opportunity for interested citi-
§ 37.137 Paratransit plan development. zens to express their views concerning
(a) Survey of existing services. Each the phase-in, the request, and which
submitting entity shall survey the area service criteria may be delayed in im-
to be covered by the plan to identify plementation.
any person or entity (public or private) (c) Ongoing requirement. The entity
which provides a paratransit or other shall create an ongoing mechanism for
special transportation service for ADA the participation of individuals with
paratransit eligible individuals in the disabilities in the continued develop-
service area to which the plan applies. ment and assessment of services to per-
(b) Public participation. Each submit- sons with disabilities. This includes,
ting entity shall ensure public partici- but is not limited to, the development
pation in the development of its para- of the initial plan, any request for an
transit plan, including at least the fol- undue financial burden waiver, and
lowing: each annual submission.
(1) Outreach. Each submitting entity
shall solicit participation in the devel- § 37.139 Plan contents.
opment of its plan by the widest range Each plan shall contain the following
of persons anticipated to use its para- information:
transit service. Each entity shall de- (a) Identification of the entity or en-
velop contacts, mailing lists and other tities submitting the plan, specifying
appropriate means for notification of for each—
opportunities to participate in the de- (1) Name and address; and
velopment of the paratransit plan; (2) Contact person for the plan, with
(2) Consultation with individuals with telephone number and facsimile tele-
disabilities. Each entity shall contact phone number (FAX), if applicable.
individuals with disabilities and groups (b) A description of the fixed route
representing them in the community. system as of January 26, 1992 (or subse-
Consultation shall begin at an early quent year for annual updates), includ-
stage in the plan development and ing—
should involve persons with disabilities (1) A description of the service area,
in all phases of plan development. All route structure, days and hours of serv-
documents and other information con- ice, fare structure, and population
cerning the planning procedure and the served. This includes maps and tables,
provision of service shall be available, if appropriate;
upon request, to members of the public, (2) The total number of vehicles (bus,
except where disclosure would be an van, or rail) operated in fixed route
unwarranted invasion of personal pri- service (including contracted service),
vacy; and percentage of accessible vehicles
(3) Opportunity for public comment. and percentage of routes accessible to
The submitting entity shall make its and usable by persons with disabilities,
plan available for review before the including persons who use wheelchairs;
plan is finalized. In making the plan (3) Any other information about the
available for public review, the entity fixed route service that is relevant to
shall ensure that the plan is available establishing the basis for com-
upon request in accessible formats; parability of fixed route and para-
(4) Public hearing. The entity shall transit service.
sponsor at a minimum one public hear- (c) A description of existing para-

ing and shall provide adequate notice transit services, including:
428
(1) An inventory of service provided (6) A budget for comparable para-

by the public entity submitting the transit service, including capital and
plan; operating expenditures over five years.
(2) An inventory of service provided (e) A description of the process used
by other agencies or organizations, to certify individuals with disabilities
which may in whole or in part be used as ADA paratransit eligible. At a min-
to meet the requirement for com- imum, this must include—
plementary paratransit service; and (1) A description of the application
(3) A description of the available and certification process, including—
paratransit services in paragraphs (i) The availability of information
(c)(2) and (c)(3) of this section as they about the process and application ma-
relate to the service criteria described terials inaccessible formats;
in § 37.131 of this part of service area, (ii) The process for determining eligi-
response time, fares, restrictions on bility according to the provisions of
trip purpose, hours and days of service, §§ 37.123–37.125 of this part and notifying
and capacity constraints; and to the re- individuals of the determination made;
quirements of ADA paratransit eligi- (iii) The entity’s system and time-
bility. table for processing applications and
(d) A description of the plan to pro- allowing presumptive eligibility; and
vide comparable paratransit, including: (iv) The documentation given to eli-
(1) An estimate of demand for com- gible individuals.
parable paratransit service by ADA eli-
(2) A description of the administra-
gible individuals and a brief descrip-
tive appeals process for individuals de-
tion of the demand estimation method-
nied eligibility.
ology used;
(3) A policy for visitors, consistent
(2) An analysis of differences between
with § 37.127 of this part.
the paratransit service currently pro-
vided and what is required under this (f) Description of the public partici-
part by the entity(ies) submitting the pation process including—
plan and other entities, as described in (1) Notice given of opportunity for
paragraph (c) of this section; public comment, the date(s) of com-
(3) A brief description of planned pleted public hearing(s), availability of
modifications to existing paratransit the plan in accessible formats, out-
and fixed route service and the new reach efforts, and consultation with
paratransit service planned to comply persons with disabilities.
with the ADA paratransit service cri- (2) A summary of significant issues
teria; raised during the public comment pe-
(4) A description of the planned com- riod, along with a response to signifi-
parable paratransit service as it relates cant comments and discussion of how
to each of the service criteria described the issues were resolved.
in § 37.131 of this part—service area, ab- (g) Efforts to coordinate service with
sence of restrictions or priorities based other entities subject to the com-
on trip purpose, response time, fares, plementary paratransit requirements
hours and days of service, and lack of of this part which have overlapping or
capacity constraints. If the paratransit contiguous service areas or jurisdic-
plan is to be phased in, this paragraph tions.
shall be coordinated with the informa- (h) The following endorsements or
tion being provided in paragraphs (d)(5) certifications:
and (d)(6) of this paragraph; (1) A resolution adopted by the board
(5) A timetable for implementing of the entity authorizing the plan, as
comparable paratransit service, with a submitted. If more than one entity is
specific date indicating when the submitting the plan there must be an
planned service will be completely authorizing resolution from each
operational. In no case may full imple- board. If the entity does not function
mentation be completed later than with a board, a statement shall be sub-
January 26, 1997. The plan shall include mitted by the entity’s chief executive;
milestones for implementing phases of (2) In urbanized areas, certification
the plan, with progress that can be ob- by the Metropolitan Planning Organi-
jectively measured yearly; zation (MPO) that it has reviewed the
429
plan and that the plan is in conform- (3) The annual plan must describe
ance with the transportation plan de- specifically the means used to comply
veloped under the Federal Transit/Fed- with the public participation require-
eral Highway Administration joint ments, as described in § 37.137 of this
planning regulation (49 CFR part 613 part.
and 23 CFR part 450). In a service area
which is covered by more than one § 37.141 Requirements for a joint para-
MPO, each applicable MPO shall cer- transit plan.
tify conformity of the entity’s plan. (a) Two or more entities with over-
The provisions of this paragraph do not lapping or contiguous service areas or
apply to non-FTA recipients; jurisdictions may develop and submit a
(3) A certification that the survey of joint plan providing for coordinated
existing paratransit service was con- paratransit service. Joint plans shall
ducted as required in § 37.137(a) of this identify the participating entities and
part; indicate their commitment to partici-
(4) To the extent service provided by pate in the plan.
other entities is included in the enti- (b) To the maximum extent feasible,
ty’s plan for comparable paratransit all elements of the coordinated plan
service, the entity must certify that: shall be submitted on January 26, 1992.
(i) ADA paratransit eligible individ- If a coordinated plan is not completed
by January 26, 1992, those entities in-
uals have access to the service;
tending to coordinate paratransit serv-
(ii) The service is provided in the
ice must submit a general statement
manner represented; and
declaring their intention to provide co-
(iii) Efforts will be made to coordi- ordinated service and each element of
nate the provision of paratransit serv- the plan specified in § 37.139 to the ex-
ice by other providers. tent practicable. In addition, the plan
(i) A request for a waiver based on must include the following certifi-
undue financial burden, if applicable. cations from each entity involved in
The waiver request should include in- the coordination effort:
formation sufficient for FTA to con- (1) A certification that the entity is
sider the factors in § 37.155 of this part. committed to providing ADA para-
If a request for an undue financial bur- transit service as part of a coordinated
den waiver is made, the plan must in- plan.
clude a description of additional para- (2) A certification from each public
transit services that would be provided entity participating in the plan that it
to achieve full compliance with the re- will maintain current levels of para-
quirement for comparable paratransit transit service until the coordinated
in the event the waiver is not granted, plan goes into effect.
and the timetable for the implementa- (c) Entities submitting the above cer-
tion of these additional services. tifications and plan elements in lieu of
(j) Annual plan updates. (1) The an- a completed plan on January 26, 1992,
nual plan updates submitted January must submit a complete plan by July
26, 1993, and annually thereafter, shall 26, 1992.
include information necessary to up- (d) Filing of an individual plan does
date the information requirements of not preclude an entity from cooper-
this section. Information submitted an- ating with other entities in the devel-
nually must include all significant opment or implementation of a joint
changes and revisions to the timetable plan. An entity wishing to join with
for implementation; other entities after its initial submis-
(2) If the paratransit service is being sion may do so by meeting the filing
phased in over more than one year, the requirements of this section.
entity must demonstrate that the
milestones identified in the current § 37.143 Paratransit plan implementa-
paratransit plans have been achieved. tion.
If the milestones have not been (a) Each entity shall begin imple-
achieved, the plan must explain any mentation of its complementary para-
slippage and what actions are being transit plan, pending notice from FTA.
taken to compensate for the slippage. The implementation of the plan shall
430
be consistent with the terms of the (f) The extent to which efforts were
plan, including any specified phase-in made to coordinate with other public
period. entities with overlapping or contiguous
(b) If the plan contains a request for service areas or jurisdictions.
a wavier based on undue financial bur-
den, the entity shall begin implemen- § 37.149 Disapproved plans.
tation of its plan, pending a determina- (a) If a plan is disapproved in whole
tion on its waiver request. or in part, FTA will specify which pro-
visions are disapproved. Each entity
§ 37.145 State comment on plans. shall amend its plan consistent with
Each state required to receive plans this information and resubmit the plan
under § 37.135 of this part shall: to the appropriate FTA Regional Office
(a) Ensure that all applicable recipi- within 90 days of receipt of the dis-
ents of funding under 49 U.S.C. 5307 or approval letter.
49 U.S.C. 5311 have submitted plans. (b) Each entity revising its plan shall
(b) Certify to FTA that all plans have continue to comply with the public
been received. participation requirements applicable
(c) Forward the required certification to the initial development of the plan
with comments on each plan to FTA. (set out in § 37.137 of this part).
The plans, with comments, shall be
§ 37.151 Waiver for undue financial
submitted to FTA no later than April burden.
1, 1992, for the first year and April 1 an-
nually thereafter. If compliance with the service cri-
(d) The State shall develop comments teria of § 37.131 of this part creates an
to on each plan, responding to the fol- undue financial burden, an entity may
lowing points: request a waiver from all or some of
(1) Was the plan filed on time? the provisions if the entity has com-
(2) Does the plan appear reasonable? plied with the public participation re-
quirements in § 37.137 of this part and if
(3) Are there circumstances that bear
the following conditions apply:
on the ability of the grantee to carry
(a) At the time of submission of the
out the plan as represented? If yes,
initial plan on January 26, 1992—
please elaborate.
(1) The entity determines that it can-
(4) Is the plan consistent with state-
not meet all of the service criteria by
wide planning activities?
January 26, 1997; or
(5) Are the necessary anticipated fi- (2) The entity determines that it can-
nancial and capital resources identified not make measured progress toward
in the plan accurately estimated? compliance in any year before full
[56 FR 45621, Sept. 6, 1991, as amended at 79 compliance is required. For purposes of
FR 21406, Apr. 16, 2014] this part, measured progress means im-
plementing milestones as scheduled,
§ 37.147 Considerations during FTA re- such as incorporating an additional
view. paratransit service criterion or im-
In reviewing each plan, at a min- proving an aspect of a specific service
imum FTA will consider the following: criterion.
(a) Whether the plan was filed on (b) At the time of its annual plan up-
time; date submission, if the entity believes
(b) Comments submitted by the that circumstances have changed since
state, if applicable; its last submission, and it is no longer
(c) Whether the plan contains respon- able to comply by January 26, 1997, or
sive elements for each component re- make measured progress in any year
quired under § 37.139 of this part; before 1997, as described in paragraph
(d) Whether the plan, when viewed in (a)(2) of this section.
its entirety, provides for paratransit
service comparable to the entity’s § 37.153 FTA waiver determination.
fixed route service; (a) The Administrator will determine
(e) Whether the entity complied with whether to grant a waiver for undue fi-
the public participation efforts re- nancial burden on a case-by-case basis,

quired by this part; and after considering the factors identified
431
in § 37.155 of this part and the informa- paratransit eligible individuals to the
tion accompanying the request. If nec- maximum extent feasible.
essary, the Administrator will return
the application with a request for addi- § 37.155 Factors in decision to grant an
tional information. undue financial burden waiver.
(b) Any waiver granted will be for a (a) In making an undue financial bur-
limited and specified period of time. den determination, the FTA Adminis-
(c) If the Administrator grants the trator will consider the following fac-
applicant a waiver, the Administrator tors:
will do one of the following: (1) Effects on current fixed route
(1) Require the public entity to pro- service, including reallocation of acces-
vide complementary paratransit to the sible fixed route vehicles and potential
extent it can do so without incurring reduction in service, measured by serv-
an undue financial burden. The entity ice miles;
shall make changes in its plan that the (2) Average number of trips made by
Administrator determines are appro- the entity’s general population, on a
priate to maximize the complementary per capita basis, compared with the av-
paratransit service that is provided to erage number of trips to be made by
ADA paratransit eligible individuals. registered ADA paratransit eligible
When making changes to its plan, the persons, on a per capita basis;
(3) Reductions in other services, in-
entity shall use the public participa-
cluding other special services;
tion process specified for plan develop-
(4) Increases in fares;
ment and shall consider first a reduc-
(5) Resources available to implement
tion in number of trips provided to
complementary paratransit service
each ADA paratransit eligible person
over the period covered by the plan;
per month, while attempting to meet
(6) Percentage of budget needed to
all other service criteria.
implement the plan, both as a percent-
(2) Require the public entity to pro- age of operating budget and a percent-
vide basic complementary paratransit age of entire budget;
services to all ADA paratransit eligible (7) The current level of accessible
individuals, even if doing so would service, both fixed route and para-
cause the public entity to incur an transit;
undue financial burden. Basic com- (8) Cooperation/coordination among
plementary paratransit service in cor- area transportation providers;
ridors defined as provided in § 37.131(a) (9) Evidence of increased efficiencies,
along the public entity’s key routes that have been or could be effectuated,
during core service hours. that would benefit the level and qual-
(i) For purposes of this section, key ity of available resources for com-
routes are defined as routes along plementary paratransit service; and
which there is service at least hourly (10) Unique circumstances in the sub-
throughout the day. mitting entity’s area that affect the
(ii) For purposes of this section, core ability of the entity to provide para-
service hours encompass at least peak transit, that militate against the need
periods, as these periods are defined lo- to provide paratransit, or in some
cally for fixed route service, consistent other respect create a circumstance
with industry practice. considered exceptional by the submit-
(3) If the Administrator determines ting entity.
that the public entity will incur an (b)(1) Costs attributable to com-
undue financial burden as the result of plementary paratransit shall be lim-
providing basic complementary para- ited to costs of providing service spe-
transit service, such that it is infeasi- cifically required by this part to ADA
ble for the entity to provide basic com- paratransit eligible individuals, by en-
plementary paratransit service, the tities responsible under this part for
Administrator shall require the public providing such service.
entity to coordinate with other avail- (2) If the entity determines that it is
able providers of demand responsive impracticable to distinguish between
service in the area served by the public trips mandated by the ADA and other
entity to maximize the service to ADA trips on a trip-by-trip basis, the entity
432
shall attribute to ADA complementary § 37.163 Keeping vehicle lifts in opera-

paratransit requirements a percentage tive condition: Public entities.
of its overall paratransit costs. This (a) This section applies only to public
percentage shall be determined by a entities with respect to lifts in non-rail
statistically valid methodology that vehicles.
determines the percentage of trips that (b) The entity shall establish a sys-
are required by this part. The entity tem of regular and frequent mainte-
shall submit information concerning nance checks of lifts sufficient to de-
its methodology and the data on which termine if they are operative.
its percentage is based with its request (c) The entity shall ensure that vehi-
for a waiver. Only costs attributable to cle operators report to the entity, by
ADA-mandated trips may be considered the most immediate means available,
with respect to a request for an undue any failure of a lift to operate in serv-
financial burden waiver. ice.
(d) Except as provided in paragraph
(3) Funds to which the entity would
(e) of this section, when a lift is discov-
be legally entitled, but which, as a ered to be inoperative, the entity shall
matter of state or local funding ar- take the vehicle out of service before
rangements, are provided to another the beginning of the vehicle’s next
entity and used by that entity to pro- service day and ensure that the lift is
vide paratransit service which is part repaired before the vehicle returns to
of a coordinated system of paratransit service.
meeting the requirements of this part, (e) If there is no spare vehicle avail-
may be counted in determining the able to take the place of a vehicle with
burden associated with the waiver re- an inoperable lift, such that taking the
quest. vehicle out of service will reduce the
transportation service the entity is
§§ 37.157–37.159 [Reserved] able to provide, the public entity may
keep the vehicle in service with an in-
Subpart G—Provision of Service operable lift for no more than five days
(if the entity serves an area of 50,000 or
§ 37.161 Maintenance of accessible fea- less population) or three days (if the
tures: General. entity serves an area of over 50,000 pop-
ulation) from the day on which the lift
(a) Public and private entities pro-
is discovered to be inoperative.
viding transportation services shall (f) In any case in which a vehicle is
maintain in operative condition those operating on a fixed route with an in-
features of facilities and vehicles that operative lift, and the headway to the
are required to make the vehicles and next accessible vehicle on the route ex-
facilities readily accessible to and usa- ceeds 30 minutes, the entity shall
ble by individuals with disabilities. promptly provide alternative transpor-
These features include, but are not lim- tation to individuals with disabilities
ited to, lifts and other means of access who are unable to use the vehicle be-
to vehicles, securement devices, ele- cause its lift does not work.
vators, signage and systems to facili-
tate communications with persons § 37.165 Lift and securement use.
with impaired vision or hearing. (a) This section applies to public and
(b) Accessibility features shall be re- private entities.
paired promptly if they are damaged or (b) Except as provided in this section,
out of order. When an accessibility fea- individuals using wheelchairs shall be
ture is out of order, the entity shall transported in the entity’s vehicles or
take reasonable steps to accommodate other conveyances.
individuals with disabilities who would (1) With respect to wheelchair/occu-
otherwise use the feature. pant combinations that are larger or
heavier than those to which the design
(c) This section does not prohibit iso-
standards for vehicles and equipment
lated or temporary interruptions in
of 49 CFR part 38 refer, the entity must
service or access due to maintenance or carry the wheelchair and occupant if

repairs. the lift and vehicle can accommodate
433
the wheelchair and occupant. The enti- § 37.167 Other service requirements.
ty may decline to carry a wheelchair/
(a) This section applies to public and
occupant if the combined weight ex-
private entities.
ceeds that of the lift specifications or
if carriage of the wheelchair is dem- (b) On fixed route systems, the entity
onstrated to be inconsistent with le- shall announce stops as follows:
gitimate safety requirements. (1) The entity shall announce at least
(2) The entity is not required to per- at transfer points with other fixed
mit wheelchairs to ride in places other routes, other major intersections and
than designated securement locations destination points, and intervals along
in the vehicle, where such locations a route sufficient to permit individuals
exist. with visual impairments or other dis-
(c)(1) For vehicles complying with abilities to be oriented to their loca-
part 38 of this title, the entity shall use tion.
the securement system to secure (2) The entity shall announce any
wheelchairs as provided in that Part. stop on request of an individual with a
(2) For other vehicles transporting disability.
individuals who use wheelchairs, the (c) Where vehicles or other convey-
entity shall provide and use a secure- ances for more than one route serve
ment system to ensure that the wheel- the same stop, the entity shall provide
chair remains within the securement a means by which an individual with a
area. visual impairment or other disability
(3) The entity may require that an can identify the proper vehicle to enter
individual permit his or her wheelchair or be identified to the vehicle operator
to be secured. as a person seeking a ride on a par-
(d) The entity may not deny trans- ticular route.
portation to a wheelchair or its user on (d) The entity shall permit service
the ground that the device cannot be animals to accompany individuals with
secured or restrained satisfactorily by disabilities in vehicles and facilities.
the vehicle’s securement system. (e) The entity shall ensure that vehi-
(e) The entity may recommend to a cle operators and other personnel make
user of a wheelchair that the individual use of accessibility-related equipment
transfer to a vehicle seat. The entity or features required by part 38 of this
may not require the individual to title.
transfer. (f) The entity shall make available to
(f) Where necessary or upon request, individuals with disabilities adequate
the entity’s personnel shall assist indi- information concerning transportation
viduals with disabilities with the use of services. This obligation includes mak-
securement systems, ramps and lifts. If ing adequate communications capacity
it is necessary for the personnel to available, through accessible formats
leave their seats to provide this assist- and technology, to enable users to ob-
ance, they shall do so. tain information and schedule service.
(g) The entity shall permit individ- (g) The entity shall not refuse to per-
uals with disabilities who do not use mit a passenger who uses a lift to dis-
wheelchairs, including standees, to use embark from a vehicle at any des-
a vehicle’s lift or ramp to enter the ve- ignated stop, unless the lift cannot be
hicle. Provided, that an entity is not re- deployed, the lift will be damaged if it
quired to permit such individuals to is deployed, or temporary conditions at
use a lift Model 141 manufactured by the stop, not under the control of the
EEC, Inc. If the entity chooses not to entity, preclude the safe use of the stop
allow such individuals to use such a by all passengers.
lift, it shall clearly notify consumers (h) The entity shall not prohibit an
of this fact by signage on the exterior individual with a disability from trav-
of the vehicle (adjacent to and of eling with a respirator or portable oxy-
equivalent size with the accessibility gen supply, consistent with applicable
symbol). Department of Transportation rules on
the transportation of hazardous mate-

FR 63103, Nov. 30, 1993; 76 FR 57936, Sept. 19, rials (49 CFR subtitle B, chapter 1, sub-
2011] chapter C).
434
(i) The entity shall ensure that ade- shall respond to requests for reasonable
quate time is provided to allow individ- modification to policies and practices
uals with disabilities to complete consistent with this section.
boarding or disembarking from the ve- (2) The public entity shall make in-
hicle. formation about how to contact the
(j)(1) When an individual with a dis- public entity to make requests for rea-
ability enters a vehicle, and because of sonable modifications readily available
a disability, the individual needs to sit to the public through the same means
in a seat or occupy a wheelchair se- it uses to inform the public about its
curement location, the entity shall ask policies and practices.
the following persons to move in order (3) This process shall be in operation
to allow the individual with a dis- no later than July 13, 2015.
ability to occupy the seat or secure- (b) The process shall provide a
ment location: means, accessible to and usable by in-
(i) Individuals, except other individ- dividuals with disabilities, to request a
uals with a disability or elderly per- modification in the entity’s policies
sons, sitting in a location designated as and practices applicable to its trans-
priority seating for elderly and handi- portation services.
capped persons (or other seat as nec- (1) Individuals requesting modifica-
essary); tions shall describe what they need in
(ii) Individuals sitting in or a fold- order to use the service.
down or other movable seat in a wheel- (2) Individuals requesting modifica-
chair securement location. tions are not required to use the term
(2) This requirement applies to light ‘‘reasonable modification’’ when mak-
rail, rapid rail, and commuter rail sys- ing a request.
tems only to the extent practicable. (3) Whenever feasible, requests for
(3) The entity is not required to en- modifications shall be made and deter-
force the request that other passengers mined in advance, before the transpor-
move from priority seating areas or tation provider is expected to provide
wheelchair securement locations. the modified service, for example, dur-
(4) In all signage designating priority ing the paratransit eligibility process,
seating areas for elderly persons and through customer service inquiries, or
persons with disabilities, or desig- through the entity’s complaint process.
nating wheelchair securement areas, (4) Where a request for modification
the entity shall include language in- cannot practicably be made and deter-
forming persons sitting in these loca- mined in advance (e.g., because of a
tions that they should comply with re- condition or barrier at the destination
quests by transit provider personnel to of a paratransit or fixed route trip of
vacate their seats to make room for an which the individual with a disability
individual with a disability. This re- was unaware until arriving), operating
quirement applies to all fixed route ve- personnel of the entity shall make a
hicles when they are acquired by the determination of whether the modifica-
entity or to new or replacement sign- tion should be provided at the time of
age in the entity’s existing fixed route the request. Operating personnel may
vehicles. consult with the entity’s management
before making a determination to
FR 63103, Nov. 30, 1993] grant or deny the request.
(c) Requests for modification of a
§ 37.169 Process to be used by public public entity’s policies and practices
entities providing designated public may be denied only on one or more of
transportation service in consid- the following grounds:
ering requests for reasonable modi- (1) Granting the request would fun-
fication. damentally alter the nature of the en-
(a)(1) A public entity providing des- tity’s services, programs, or activities;
ignated public transportation, in meet- (2) Granting the request would create
ing the reasonable modification re- a direct threat to the health or safety
quirement of § 37.5(i)(3) with respect to of others;
its fixed route, demand responsive, and (3) Without the requested modifica-
complementary paratransit services, tion, the individual with a disability is
435
able to fully use the entity’s services, Subpart H—Over-the-Road Buses

programs, or activities for their in- (OTRBs)
tended purpose.
(d) In determining whether to grant a
SOURCE: 63 FR 51690, Sept. 28, 1998, unless
requested modification, public entities otherwise noted.
shall be guided by the provisions of Ap-
pendix E to this Part. § 37.181 Applicability dates.
(e) In any case in which a public enti- This subpart applies to all private en-
ty denies a request for a reasonable tities that operate OTRBs. The require-
modification, the entity shall take, to ments of the subpart begin to apply to
the maximum extent possible, any large operators beginning October 30,
other actions (that would not result in 2000 and to small operators beginning
a direct threat or fundamental alter- October 29, 2001.
ation) to ensure that the individual
with a disability receives the services § 37.183 Purchase or lease of new
or benefit provided by the entity. OTRBs by operators of fixed-route
(f)(1) Public entities are not required systems.
to obtain prior approval from the De- The following requirements apply to
partment of Transportation for the private entities that are primarily in
process required by this section. the business of transporting people,
(2) DOT agencies retain the authority whose operations affect commerce, and
to review an entity’s process as part of that operate a fixed-route system, with
normal program oversight. respect to OTRBs delivered to them on
or after the date on which this subpart
applies to them:
FR 26196, May 7, 2015]
(a) Large operators. If a large entity
§ 37.171 Equivalency requirement for operates a fixed-route system, and pur-
demand responsive service oper- chases or leases a new OTRB for or in
ated by private entities not pri- contemplation of use in that system, it
marily engaged in the business of shall ensure that the vehicle is readily
transporting people. accessible to and usable by individuals
A private entity not primarily en- with disabilities, including individuals
gaged in the business of transporting who use wheelchairs.
people which operates a demand re- (b) Small operators. If a small entity
sponsive system shall ensure that its operates a fixed-route system, and pur-
system, when viewed in its entirety, chases or leases a new OTRB for or in
provides equivalent service to individ- contemplation of use in that system, it
must do one of the following two
uals with disabilities, including indi-
things:
viduals who use wheelchairs, as it does
(1) Ensure that the vehicle is readily
to individuals without disabilities. The
accessible to and usable by individuals
standards of § 37.105 shall be used to de-
with disabilities, including individuals
termine if the entity is providing
who use wheelchairs; or
equivalent service.
(2) Ensure that equivalent service, as
§ 37.173 Training requirements. defined in § 37.105, is provided to indi-
viduals with disabilities, including in-
Each public or private entity which dividuals who use wheelchairs. To meet
operates a fixed route or demand re- this equivalent service standard, the
sponsive system shall ensure that per- service provided by the operator must
sonnel are trained to proficiency, as permit a wheelchair user to travel in
appropriate to their duties, so that his or her own mobility aid.
they operate vehicles and equipment
safely and properly assist and treat in- § 37.185 Fleet accessibility require-
dividuals with disabilities who use the ment for OTRB fixed-route systems
service in a respectful and courteous of large operators.
way, with appropriate attention to the Each large operator subject to the re-
difference among individuals with dis- quirements of § 37.183 shall ensure

abilities. that—
436
(a) By October 30, 2006 no less than 50 Y to ensure that Y knows that a passenger
percent of the buses in its fleet with needing accessible transportation or equiva-
which it provides fixed-route service lent service, as applicable, is traveling from
Point B to Point C. By immediate commu-
are readily accessible to and usable by nication, we mean that the ticket or reserva-
individuals with disabilities, including tion agent for Operator X, by phone, fax,
individuals who use wheelchairs. computer, or other instantaneous means,
(b) By October 29, 2012, 100 percent of contacts Operator Y the minute the reserva-
the buses in its fleet with which it pro- tion or ticketing transaction with the pas-
vides fixed-route service are readily ac- senger, as applicable, has been completed. It
cessible to and usable by individuals is the responsibility of each carrier to know
how to contact carriers with which it
with disabilities, including individuals interlines (e.g., Operator X must know Oper-
who use wheelchairs. ator Y’s phone number).
(c) Request for time extension. An oper- Example 2. Operator X fails to provide the
ator may apply to the Secretary for a required information in a timely manner to
time extension of the fleet accessi- Operator Y. Operator X is responsible for
bility deadlines of this section. If he or compensating the passenger for the con-
she grants the request, the Secretary sequent unavailability of an accessible bus
or equivalent service, as applicable, on the
sets a specific date by which the oper- B-C leg of the interline trip.
ator must meet the fleet accessibility
requirement. In determining whether (b) Each operator retains the respon-
to grant such a request, the Secretary sibility for providing the transpor-
considers the following factors: tation required by this subpart to the
(1) Whether the operator has pur- passenger for its portion of an interline
chased or leased, since October 30, 2000, trip. The following examples illustrate
enough new OTRBs to replace 50 per- the provisions of this paragraph (b):
cent of the OTRBs with which it pro- Example 1. In Example 1 to paragraph (a) of
vides fixed-route service by October 30, this section, Operator X provides the re-
2006 or 100 percent of such OTRBs by quired information to Operator Y in a timely
October 29, 2012; fashion. However, Operator Y fails to provide
(2) Whether the operator has pur- an accessible bus or equivalent service to the
passenger at Point B as the rules require.
chased or leased, between October 28, Operator Y is responsible for compensating
1998 and October 30, 2000, a number of the passenger as provided in § 37.199.
new inaccessible OTRBs significantly Example 2. Operator X provides the re-
exceeding the number of buses it would quired information to Operator Y in a timely
normally obtain in such a period; fashion. However, the rules require Operator
(3) The compliance with all require- Y to provide an accessible bus on 48 hours’
ments of this part by the operator over advance notice (i.e., as a matter of interim
service under § 37.193(a) or service by a small
the period between October 28, 1998 and mixed-service operator under § 37.191), and
the request for time extension. the passenger has purchased the ticket or
made the reservation for the interline trip
§ 37.187 Interline service. only 8 hours before Operator Y’s bus leaves
(a) When the general public can pur- from Point B to go to Point C. In this situa-
chase a ticket or make a reservation tion, Operator Y is not responsible for pro-
with one operator for a fixed-route trip viding an accessible bus to the passenger at
Point B, any more than that it would be had
of two or more stages in which another the passenger directly contacted Operator Y
operator provides service, the first op- to travel from Point B to Point C.
erator must arrange for an accessible
bus, or equivalent service, as applica- (c) All fixed-route operators involved
ble, to be provided for each stage of the in interline service shall ensure that
trip to a passenger with a disability. they have the capacity to receive com-
The following examples illustrate the munications at all times concerning
provisions of this paragraph (a): interline service for passengers with
disabilities. The following examples il-
Example 1. By going to Operator X’s ticket lustrate the provisions of this para-
office or calling X for a reservation, a pas- graph (c):
senger can buy or reserve a ticket from
Point A through to Point C, transferring at Example 1. Operator Y’s office is staffed
intermediate Point B to a bus operated by only during normal weekday business hours.
Operator Y. Operator X is responsible for Operator Y must have a means of receiving
communicating immediately with Operator communications from carriers with which it
437
interlines (e.g., telephone answering ma- cessible bus at the time he or she made his
chine, fax, computer) when no one is in the reservation, at least three months before the
office. trip date. If the individual passenger with a
Example 2. Operator Y has the responsi- disability makes a request for space on the
bility to monitor its communications de- trip and an accessible OTRB 48 hours before
vices at reasonable intervals to ensure that the trip date, the operator could refuse the
it can act promptly on the basis of messages request because all passengers were required
received. If Operator Y receives a message to make reservations three months before
from Operator X on its answering machine the trip date.
on Friday night, notifying Y of the need for
Example 2. A group makes a reservation to
an accessible bus on Monday morning, it has
charter a bus for a trip four weeks in ad-
the responsibility of making sure that the
accessible bus is there on Monday morning. vance. A week before the trip date, the group
Operator Y is not excused from its obligation discovers that someone who signed up for the
because no one checked the answering ma- trip is a wheelchair user who needs an acces-
chine over the weekend. sible bus, or someone who later buys a seat
in the block of seats the group has reserved
§ 37.189 Service requirement for OTRB needs an accessible bus. A group representa-
demand-responsive systems. tive or the passenger with a disability in-
forms the bus company of this need more
(a) This section applies to private en-
than 48 hours before the trip date. The bus
tities primarily in the business of company must provide an accessible bus.
transporting people, whose operations Example 3. While the operator’s normal
affect commerce, and that provide de- deadline for reserving space on a charter or
mand-responsive OTRB service. Except tour trip has passed, a number of seats for a
as needed to meet the other require- trip are unfilled. The operator permits mem-
ments of this section, these entities are bers of the public to make late reservations
not required to purchase or lease acces- for the unfilled seats. If a passenger with a
sible buses in connection with pro- disability calls 48 hours before the trip is
viding demand-responsive service. scheduled to leave and requests a seat and
(b) Demand-responsive operators the provision of an accessible OTRB, the op-
shall ensure that, beginning one year erator must meet this request, as long as it
from the date on which the require- does not displace another passenger with a
ments of this subpart begin to apply to reservation.
Example 4. A tour bus trip is nearly sold
the entity, any individual with a dis-
out three weeks in advance of the trip date.
ability who requests service in an ac-
A passenger with a disability calls 48 hours
cessible OTRB receives such service. before the trip is scheduled to leave and re-
This requirement applies to both large quests a seat and the provision of an acces-
and small operators. sible OTRB. The operator need not meet this
(c) The operator may require up to 48 request if it will have the effect of displacing
hours’ advance notice to provide this a passenger with an existing reservation. If
service. other passengers would not be displaced, the
(d) If the individual with a disability operator must meet this request.
does not provide the advance notice the
operator requires under paragraph (a) § 37.191 Special provision for small
of this section, the operator shall nev- mixed-service operators.
ertheless provide the service if it can (a) For purposes of this section, a
do so by making a reasonable effort. small mixed-service operator is a small
(e) To meet this requirement, an op- operator that provides both fixed-route
erator is not required to fundamentally and demand-responsive service and
alter its normal reservation policies or does not use more than 25 percent of its
to displace another passenger who has buses for fixed-route service.
reserved a seat on the bus. The fol-
(b) An operator meeting the criteria
lowing examples illustrate the provi-
of paragraph (a) of this section may
sions of this paragraph (e):
conduct all its trips, including fixed-
Example 1. A tour bus operator requires all route trips, on an advance-reservation
passengers to reserve space on the bus three basis as provided for demand-respon-
months before the trip date. This require-
ment applies to passengers with disabilities
sive trips in § 37.189. Such an operator
is not required to comply with the ac-
on the same basis as other passengers. Con-

sequently, an individual passenger who is a cessible bus acquisition/equivalent
wheelchair user would have to request an ac- service obligations of § 37.183(b).
438
§ 37.193 Interim service requirements. shall meet the requirements of § 37.183

(a) Until 100 percent of the fleet of a (a) or (b), as applicable.
large or small operator uses to provide (b) Demand-responsive systems. The re-
fixed-route service is composed of ac- quirements of § 37.189 apply to demand-
cessible OTRBs, the operator shall responsive systems operated by private
meet the following interim service re- entities not primarily in the business
quirements: of transporting people. If such an enti-
(1) Beginning one year from the date ty operates a demand-responsive sys-
on which the requirements of this sub- tem, and purchases or leases an OTRB
part begin to apply to the operator, it for or in contemplation of use on the
shall ensure that any individual with a system, it is not required to purchase
disability that requests service in an or lease an accessible bus except as
accessible OTRB receives such service. needed to meet the requirements of
(i) The operator may require up to 48 § 37.189.
hours’ advance notice to provide this
service. § 37.197 Remanufactured OTRBs.
(ii) If the individual with a disability
does not provide the advance notice the (a) This section applies to any pri-
operator requires, the operator shall vate entity operating OTRBs that
nevertheless provide the service if it takes one of the following actions:
can do so by making a reasonable ef- (1) On or after the date on which this
fort. subpart applies to the entity, it re-
(iii) If the trip on which the person manufactures an OTRB so as to extend
with a disability wishes to travel is al- its useful life for five years or more or
ready provided by an accessible bus, makes a solicitation for such remanu-
the operator has met this requirement. facturing; or
(2) Interim service under this para- (2) Purchases or leases an OTRB
graph (a) is not required to be provided which has been remanufactured so as
by a small operator who is providing to extend its useful life for five years
equivalent service to its fixed-route
or more, where the purchase or lease
service as provided in § 37.183(b)(2).
occurs after the date on which this sub-
(b) Some small fixed-route operators
may never have a fleet 100 percent of part applies to the entity and during
which consists of accessible buses (e.g., the period in which the useful life of
a small fixed-route operator who exclu- the vehicle is extended.
sively or primarily purchases or leases (b) In any situation in which this
used buses). Such an operator must subpart requires an entity purchasing
continue to comply with the require- or leasing a new OTRB to purchase or
ments of this section with respect to lease an accessible OTRB, OTRBs ac-
any service that is not provided en- quired through the actions listed in
tirely with accessible buses. paragraph (a) of this section shall, to
(c) [Reserved] the maximum extent feasible, be read-
[56 FR 45621, Sept. 6, 1991, as amended at 76 ily accessible to and usable by individ-
FR 57936, Sept. 19, 2011] uals with disabilities, including indi-
viduals who use wheelchairs.
§ 37.195 Purchase or lease of OTRBs by (c) For purposes of this section, it
private entities not primarily in the
business of transporting people. shall be considered feasible to remanu-
facture an OTRB so as to be readily ac-
This section applies to all purchases cessible to and usable by individuals
or leases of new vehicles by private en- with disabilities, including individuals
tities which are not primarily engaged
who use wheelchairs, unless an engi-
in the business of transporting people,
neering analysis demonstrates that in-
with respect to buses delivered to them
on or after the date on which this sub- cluding accessibility features required
part begins to apply to them. by this part would have a significant
(a) Fixed-route systems. If the entity adverse effect on the structural integ-
operates a fixed-route system and pur- rity of the vehicle.
chases or leases an OTRB for or in con-

templation of use on the system, it
439
§ 37.199 [Reserved] the beginning of the vehicle’s next trip

and ensure that the lift is repaired be-
§ 37.201 Intermediate and rest stops. fore the vehicle returns to service.
(a) Whenever an OTRB makes an in- (d) If there is no other vehicle avail-
termediate or rest stop, a passenger able to take the place of an OTRB with
with a disability, including an indian inoperable lift, such that taking the
vidual using a wheelchair, shall be per- vehicle out of service before its next
mitted to leave and return to the bus trip will reduce the transportation
on the same basis as other passengers. service the entity is able to provide,
The operator shall ensure that assist- the entity may keep the vehicle in
ance is provided to passengers with dis- service with an inoperable lift for no
abilities as needed to enable the pas- more than five days from the day on
senger to get on and off the bus at the which the lift is discovered to be inop-
stop (e.g., operate the lift and provide erative.
assistance with securement; provide
other boarding assistance if needed, as § 37.205 Additional passengers who
in the case of a wheelchair user who use wheelchairs.
has transferred to a vehicle seat be- If a number of wheelchair users ex-
cause other wheelchair users occupied ceeding the number of securement lo-
all securement locations). cations on the bus seek to travel on a
(b) If an OTRB operator owns, leases, trip, the operator shall assign the se-
or controls the facility at which a rest curement locations on a first come-
or intermediate stop is made, or if an first served basis. The operator shall
OTRB operator contracts with the per- offer boarding assistance and the op-
son who owns, leases, or controls such portunity to sit in a vehicle seat to
a facility to provide rest stop services, passengers who are not assigned a se-
the OTRB operator shall ensure the fa- curement location. If the passengers
cility complies fully with applicable re- who are not assigned securement loca-
quirements of the Americans with Dis- tions are unable or unwilling to accept
abilities Act. this offer, the operator is not required
(c) If an OTRB equipped with an inac- to provide transportation to them on
cessible restroom is making an express the bus.
run of three hours or more without a
rest stop, and a passenger with a dis- § 37.207 Discriminatory practices.
ability who is unable to use the inac- It shall be considered discrimination
cessible restroom requests an unsched- for any operator to—
uled rest stop, the operator shall make (a) Deny transportation to pas-
a good faith effort to accommodate the sengers with disabilities, except as pro-
request. The operator is not required to vided in § 37.5(h);
make the stop. However, if the oper- (b) Use or request the use of persons
ator does not make the stop, the oper- other than the operator’s employees
ator shall explain to the passenger (e.g., family members or traveling
making the request the reason for its companions of a passenger with a dis-
decision not to do so. ability, medical or public safety per-
sonnel) for routine boarding or other
§ 37.203 Lift maintenance. assistance to passengers with disabil-
(a) The entity shall establish a sys- ities, unless the passenger requests or
tem of regular and frequent mainte- consents to assistance from such per-
nance checks of lifts sufficient to de- sons;
termine if they are operative. (c) Require or request a passenger
(b) The entity shall ensure that vehi- with a disability to reschedule his or
cle operators report to the entity, by her trip, or travel at a time other than
the most immediate means available, the time the passenger has requested,
any failure of a lift to operate in serv- in order to receive transportation as
ice. required by this subpart;
(c) Except as provided in paragraph (d) Fail to provide reservation serv-
(d) of this section, when a lift is discov- ices to passengers with disabilities
ered to be inoperative, the entity shall equivalent to those provided other pas-
take the vehicle out of service before sengers; or
440
(e) Fail or refuse to comply with any all legs of the requested trip (e.g., in
applicable provision of this part. the case of a round trip, both the out-
going and return legs of the trip; in the
§ 37.209 Training and other require- case of a multi-leg trip, all connecting
ments. legs). The operator shall transmit a
OTRB operators shall comply with copy of the form to the passenger in
the requirements of §§ 37.161, 37.165– one of the following ways:
37.167, and 37.173. For purposes of (i) By first-class United States mail.
§ 37.173, ‘‘training to proficiency’’ is The operator shall transmit the form
deemed to include, as appropriate to no later than the end of the next busi-
the duties of particular employees, ness day following the request;
training in proper operation and main- (ii) By telephone or email. If the pas-
tenance of accessibility features and senger can receive the confirmation by
equipment, boarding assistance, se- this method, then the operator shall
curement of mobility aids, sensitive provide a unique confirmation number
and appropriate interaction with pas- to the passenger when the request is
sengers with disabilities, handling and made and provide a paper copy of the
storage of mobility devices, and famili- form when the passenger arrives for
arity with the requirements of this the requested trip; or
subpart. OTRB operators shall provide (iii) By facsimile transmission. If the
refresher training to personnel as need- passenger can receive the confirmation
ed to maintain proficiency. by this method, then the operator shall
transmit the form within twenty-four
§ 37.211 Effect of NHTSA and FHWA hours of the request for transportation.
safety rules. (3) The operator shall retain its copy
OTRB operators are not required to of the completed form for five years.
take any action under this subpart The operator shall make these forms
that would violate an applicable Na- available to Department of Transpor-
tional Highway Traffic Safety Admin- tation or Department of Justice offi-
istration or Federal Highway Adminis- cials at their request.
tration safety rule. (4) Beginning October 29, 2001, for
large operators, and October 28, 2002,
§ 37.213 Information collection re- for small operators, and on the last
quirements. Monday in October in each year there-
(a) This paragraph (a) applies to de- after, each operator shall submit a
mand-responsive operators under summary of its forms to the Depart-
§ 37.189 and fixed-route operators under ment of Transportation. The summary
§ 37.193(a)(1) that are required to, and shall state the number of requests for
small mixed-service operators under accessible bus service and the number
§ 37.191 that choose to, provide acces- of times these requests were met. It
sible OTRB service on 48 hours’ ad- shall also include the name, address,
vance notice. telephone number, and contact person
(1) When the operator receives a re- name for the operator.
quest for an accessible bus or equiva- (b) This paragraph (b) applies to
lent service, the operator shall com- small fixed route operators who choose
plete lines 1–9 of the Service Request to provide equivalent service to pas-
Form in Appendix A to this subpart. sengers with disabilities under
The operator shall transmit a copy of § 37.183(b)(2).
the form to the passenger no later than (1) The operator shall complete the
the end of the next business day fol- Service Request Form in Appendix A to
lowing the receipt of the request. The this subpart on every occasion on
passenger shall be required to make which a passenger with a disability
only one request, which covers all legs needs equivalent service in order to be
of the requested trip (e.g., in the case provided transportation.
of a round trip, both the outgoing and (2) The passenger shall be required to
return legs of the trip; in the case of a make only one request, which covers
multi-leg trip, all connecting legs). all legs of the requested trip (e.g., in
(2) The passenger shall be required to the case of a round trip, both the out-
make only one request, which covers going and return legs of the trip; in the
441
case of a multi-leg trip, all connecting (d) This paragraph (d) applies to each
legs). The operator shall transmit a over the road bus operator.
copy of the form to the passenger, and (1) On March 26, 2001, each operator
whenever the equivalent service is not shall submit to the Department, a sum-
provided, in one of the following ways: mary report listing the number of new
(i) By first-class United States mail. buses and used buses it has purchased
The operator shall transmit the form or leased for the period of October 1998
no later than the end of the next busi- through October 2000, and how many
ness day following the request for buses in each category are accessible.
equivalent service; It shall also include the total number
(ii) By telephone or email. If the pas- of buses in the operator’s fleet and the
senger can receive the confirmation by name, address, telephone number, and
this method, then the operator shall contact person name for the operator.
provide a unique confirmation number (2) Beginning on October 29, 2001 and
to the passenger when the request for on the last Monday in October in each
equivalent service is made and provide year thereafter, each operator shall
a paper copy of the form when the pas- submit to the Department, a summary
senger arrives for the requested trip; or report listing the number of new buses
(iii) By facsimile transmission. If the and used buses it has purchased or
passenger can receive the confirmation leased during the preceding year, and
by this method, then the operator shall how many buses in each category are
transmit the form within twenty-four accessible. It shall also include the
hours of the request for equivalent total number of buses in the operator’s
service. fleet and the name, address, telephone
number, and contact person name for
(3) Beginning on October 28, 2002 and
the operator.
on the last Monday in October in each
year therafter, each operator shall sub- (e) The information required to be
mit a summary of its forms to the De- submitted to the Department shall be
sent to the following address: Federal
partment of Transportation. The sum-
Motor Carrier Safety Administration,
mary shall state the number of situa-
Office of Data Analysis & Information
tions in which equivalent service was
System 1200 New Jersey Avenue, SE.,
needed and the number of times such
Washington, D.C. 20590.
service was provided. It shall also in-
clude the name, address, telephone [66 FR 9053, Feb. 6, 2001, as amended at 69 FR
number, and contact person name for 40796, July 7, 2004; 73 FR 33329, June 12, 2008]
the operator.
(c) This paragraph (c) applies to § 37.215 Review of requirements.
fixed-route operators. (a) Beginning October 28, 2005, the
(1) On March 26, 2001, each fixed-route Department will review the require-
large operator shall submit to the De- ments of § 37.189 and their implementa-
partment a report on how many pas- tion. The Department will complete
sengers with disabilities used the lift this review by October 30, 2006.
to board accessible buses for the period (1) As part of this review, the Depart-
of October 1999 to October 2000. For ment will consider factors including,
fixed-route operators, the report shall but not necessarily limited to, the fol-
reflect separately the data pertaining lowing:
to 48-hour advance reservation service (i) The percentage of accessible buses
and other service. in the demand-responsive fleets of
(2) Beginning on October 29, 2001 and large and small demand-responsive op-
on the last Monday in October in each erators.
year thereafter, each fixed-route oper- (ii) The success of small and large de-
ator shall submit to the Department, a mand-responsive operators’ service at
report on how many passengers with meeting the requests of passengers
disabilities used the lift to board acces- with disabilities for accessible buses in
sible buses. For fixed-route operators, a timely manner.
the report shall reflect separately the (iii) The ridership of small and large
data pertaining to 48-hour advance res- operators’ demand-responsive service

ervation service and other service. by passengers with disabilities.
442
(iv) The volume of complaints by pas- 7. Scheduled date(s) and time(s) of trip(s): l
sengers with disabilities. llllllllllllllllllllllll
(v) Cost and service impacts of imple- 8. Date and time of request: lllllllll
mentation of the requirements of 9. Location(s) of need for accessible bus or
§ 37.189. equivalent service, as applicable: lllll
(2) The Department will make one of 10. Was accessible bus or equivalent service,
the following decisions on the basis of as applicable, provided for trip(s)? Yes
llll no llll
the review:
11. Was there a basis recognized by U.S. De-
(i) Retain § 37.189 without change; or partment of transportation regulations for
(ii) Modify the requirements of not providing an accessible bus or equiva-
§ 37.189 for large and/or small demand- lent service, as applicable, for the trip(s)?
responsive operators. Yes llll no llll
(b) Beginning October 30, 2006, the If yes, explain llllllllllllllll
Department will review the require- llllllllllllllllllllllll
ments of §§ 37.183, 37.185, 37.187, 37.191
[66 FR 9054, Feb. 6, 2001]
and 37.193(a) and their implementation.
The Department will complete this re-
view by October 29, 2007.
(1) As part of this review, the Depart-
ment will consider factors including, APPENDIX A TO PART 37—MODIFICATIONS
but not necessarily limited to, the fol- TO STANDARDS FOR ACCESSIBLE
lowing: TRANSPORTATION FACILITIES
(i) The percentage of accessible buses The Department of Transportation, in § 37.9
in the fixed-route fleets of large and of this part, adopts as its regulatory stand-
small fixed-route operators. ards for accessible transportation facilities
(ii) The success of small and large the revised Americans with Disabilities Act
fixed-route operators’ interim or equiv- Guidelines (ADAGG) issued by the Access
alent service at meeting the requests of Board on July 23, 2004. The ADAGG is codi-
passengers with disabilities for acces- fied in the Code of Federal Regulations in
sible buses in a timely manner. Appendices B and D of 36 CFR part 1191. Note
(iii) The ridership of small and large the ADAAG may also be found via a
hyperlink on the Internet at the following
operators’ fixed-route service by pas- address: http://www.access-board.gov/ada-aba/
sengers with disabilities. final.htm. Like all regulations, the ADAAG
(iv) The volume of complaints by pas- also can be found by using the electronic
sengers with disabilities. Code of Federal Regulations at http://
(v) Cost and service impacts of imple- www.gpoaccess.gov/ecfr. Because the ADAAG
mentation of the requirements of these has been established as a Federal consensus
sections. standard by the Access Board, the Depart-
(2) The Department will make one of ment is not republishing the regulations in
their entirety, but is adopting them by
the following decisions on the basis of
cross-reference as permitted under 1 CFR
the review: 21.21(c)(4). In a few instances, the Depart-
(i) Retain §§ 37.183, 37.185, 37.187, ment has modified the language of the
37.191, 37.193(a) without change; or ADAAG as it applies to entities subject to 49
(ii) Modify the requirements of CFR part 37. These entities must comply
§§ 37.183, 37.185, 37.187, 37.191, 37.193(a) with the modified language in this Appendix
for large and/or small fixed-route oper- rather than the language of Appendices B
ators. and D to 36 CFR part 1191.
APPENDIX A TO SUBPART H OF PART 37— 206.3 LOCATION—MODIFICATION TO 206.3 OF

APPENDIX B TO 36 CFR PART 1191
SERVICE REQUEST FORM
Accessible routes shall coincide with, or be
Form for Advance Notice Requests and located in the same area as general circula-
Provision of Equivalent Service tion paths. Where circulation paths are inte-
1. Operator’s name lllllllllllll rior, required accessible routes shall also be
2. Address llllllllllllllllll interior. Elements such as ramps, elevators,
llllllllllllllllllllllll or other circulation devices, fare vending or
3. Phone number: llllllllllllll other ticketing areas, and fare collection
4. Passenger’s name: llllllllllll areas shall be placed to minimize the dis-
5. Address: llllllllllllllllll tance which wheelchair users and other per-

llllllllllllllllllllllll sons who cannot negotiate steps may have to
6. Phone number: llllllllllllll travel compared to the general public.
443
406.8—MODIFICATION TO 406 OF APPENDIX D TO Region 5, Federal Transit Administration,
36 CFR PART 1191 200 West Adams Street, Suite 320, Chicago,
IL 60606
A curb ramp shall have a detectable warn-
Region 6, Federal Transit Administration,
ing complying with 705. The detectable warn- 819 Taylor Street, Room 8A36, Fort Worth,
ing shall extend the full width of the curb TX 76102
ramp (exclusive of flared sides) and shall ex-
tend either the full depth of the curb ramp or
901 Locust Street, Suite 404, Kansas City,
24 inches (610 mm) deep minimum measured MO 64106
from the back of the curb on the ramp sur-
face.
12300 West Dakota Avenue, Suite 310, Lake-
810.2.2 DIMENSIONS—MODIFICATION TO 810.2.2 wood, CO 80228
OF APPENDIX D TO 36 CFR PART 1191 Region 9, Federal Transit Administration,
201 Mission Street, Suite 1650, San Fran-
Bus boarding and alighting areas shall pro- cisco, CA 94105
vide a clear length of 96 inches (2440 mm), Region 10, Federal Transit Administration,
measured perpendicular to the curb or vehi- Jackson Federal Building, 915 Second Ave-
cle roadway edge, and a clear width of 60 nue, Suite 3142, Seattle, WA 98174
inches (1525 mm), measured parallel to the
vehicle roadway. Public entities shall ensure [79 FR 21406, Apr. 16, 2014]
that the construction of bus boarding and
alighting areas comply with 810.2.2, to the APPENDIX C TO PART 37—
extent the construction specifications are CERTIFICATIONS
within their control.
Certification of Equivalent Service
810.5.3PLATFORM AND VEHICLE FLOOR CO- The (name of agency) certifies that its de-
ORDINATION—MODIFICATION TO 810.5.3 OF AP- mand responsive service offered to individ-
PENDIX D TO 36 CFR PART 1191 uals with disabilities, including individuals
Station platforms shall be positioned to who use wheelchairs, is equivalent to the
coordinate with vehicles in accordance with level and quality of service offered to indi-
the applicable requirements of 36 CFR part viduals without disabilities. Such service,
1192. Low-level platforms shall be 8 inches when viewed in its entirety, is provided in
the most integrated setting feasible and is
(205 mm) minimum above top of rail. In light
equivalent with respect to:
rail, commuter rail, and intercity rail sys-
tems where it is not operationally or struc- (1) Response time;
turally feasible to meet the horizontal gap or (2) Fares;
vertical difference requirements of part 1192 (3) Geographic service area;
or 49 CFR part 38, mini-high platforms, car- (4) Hours and days of service;
borne or platform-mounted lifts, ramps or (5) Restrictions on trip purpose;
bridge plates or similarly manually deployed (6) Availability of information and reserva-
devices, meeting the requirements of 49 CFR tion capability; and
part 38, shall suffice. (7) Constraints on capacity or service
EXCEPTION: Where vehicles are boarded availability.
from sidewalks or street-level, low-level In accordance with 49 CFR 37.77, public en-
platforms shall be permitted to be less than tities operating demand responsive systems
8 inches (205 mm). for the general public which receive financial
assistance under 49 U.S.C. 5311 must file this
[71 FR 63266, Oct. 30, 2006] certification with the appropriate state pro-
gram office before procuring any inaccessible
APPENDIX B TO PART 37—FTA REGIONAL vehicle. Such public entities not receiving
OFFICES FTA funds shall also file the certification
with the appropriate state program office.
Region 1, Federal Transit Administration, Such public entities receiving FTA funds
Transportation Systems Center, Kendall under any other section of the FT Act must
Square, 55 Broadway, Suite 920, Cambridge, file the certification with the appropriate
MA 02142 FTA regional office. This certification is
Region 2, Federal Transit Administration, valid for no longer than one year from its
One Bowling Green, Room 429, New York, date of filing.
NY 10004 llllllllllllllllllllllll
Region 3, Federal Transit Administration, (name of authorized official)
1760 Market Street, Suite 500, Philadelphia,
PA 19103 llllllllllllllllllllllll
(title)

230 Peachtree NW., Suite 800, Atlanta, GA llllllllllllllllllllllll
30303 (signature)
444
Office of the Secretary of Transportation Pt. 37, App. D
MPO Certification of Paratransit Plan llllllllllllllllllllllll
The (name of Metropolitan Planning Orga- name of authorized official
nization) hereby certifies that it has re- llllllllllllllllllllllll
viewed the ADA paratransit plan prepared by title
(name of submitting entity (ies)) as required llllllllllllllllllllllll
under 49 CFR part 37. 139(h) and finds it to be
date
in conformance with the transportation plan
developed under 49 CFR part 613 and 23 CFR
Joint Plan Certification II
part 450 (the FTA/FHWA joint planning regu-
lation). This certification is valid for one This is to certify that (name of entity cov-
year. ered by joint plan) will, in accordance with
llllllllllllllllllllllll 49 CFR 37.141, maintain current levels of
signature paratransit service until the coordinated
llllllllllllllllllllllll plan goes into effect.
name of authorized official llllllllllllllllllllllll
llllllllllllllllllllllll signature
title llllllllllllllllllllllll
llllllllllllllllllllllll name of authorized official
date llllllllllllllllllllllll
title
Existing Paratransit Service Survey
llllllllllllllllllllllll
This is to certify that (name of public enti- date
ty (ies)) has conducted a survey of existing
paratransit services as required by 49 CFR State Certification that Plans have been
37.137 (a). Received
signature This is to certify that all ADA paratransit
plans required under 49 CFR 37.139 have been
received by (state DOT)
name of authorized official
llllllllllllllllllllllll llllllllllllllllllllllll
title signature
llllllllllllllllllllllll llllllllllllllllllllllll
date name of authorized official
Included Service Certification llllllllllllllllllllllll
title
This is to certify that service provided by
other entities but included in the ADA para- llllllllllllllllllllllll
transit plan submitted by (name of submit- date
ting entity (ies)) meets the requirements of [56 FR 45621, Sept. 6, 1991, as amended at 79
49 CFR part 37, subpart F providing that FR 21406, Apr. 16, 2014]
ADA eligible individuals have access to the
service; the service is provided in the manner APPENDIX D TO PART 37—CONSTRUCTION
represented; and, that efforts will be made to
AND INTERPRETATION OF PROVISIONS
coordinate the provision of paratransit serv-
OF 49 CFR PART 37
ice offered by other providers.
llllllllllllllllllllllll This appendix explains the Department’s
signature construction and interpretation of provisions
llllllllllllllllllllllll of 49 CFR part 37. It is intended to be used as
name of authorized official definitive guidance concerning the meaning
llllllllllllllllllllllll and implementation of these provisions. The
title appendix is organized on a section-by-section
basis. Some sections of the rule are not dis-
date cussed in the appendix, because they are self-
explanatory or we do not currently have in-
Joint Plan Certification I terpretive material to provide concerning
them.
This is to certify that (name of entity cov- The Department also provides guidance by
ered by joint plan) is committed to providing other means, such as manuals and letters.
ADA paratransit service as part of this co- The Department intends to update this Ap-
ordinated plan and in conformance with the pendix periodically to include guidance, pro-
requirements of 49 CFR part 37, subpart F.
vided in response to inquiries about specific

llllllllllllllllllllllll situations, that is of general relevance or in-
signature terest.
445
AMENDMENTS TO 49 CFR PART 27 that may be inferred for the statutory ex-
emption for this kind of service concerns its
Section 27.67(d) has been revised to ref-
typical characteristics (e.g., no attempt to
erence the Access Board facility guidelines
comprehensively cover a service area, lim-
(found in appendix A to part 37) as well as
ited route structure, limited origins and des-
the Uniform Federal Accessibility Standard
tinations, interface with another mode of
(UFAS). This change was made to ensure
transportation, limited purposes of travel).
consistency between requirements under sec-
These characteristics can be found in some
tion 504 and the ADA. Several caveats relat- transportation systems other than bus sys-
ing to the application of UFAS (e.g., that tems oriented toward work trips. For exam-
spaces not used by the public or likely to re- ple, bus service that is used as a dedicated
sult in the employment of individuals with connecter to commuter or intercity rail
disabilities would not have to meet the service, certain airport shuttles, and univer-
standards) have been deleted. It is the De- sity bus systems share many or all of these
partment’s understanding that provisions of characteristics. As explained further in the
the Access Board standards and part 37 make discussion of subpart B, the Department has
them unnecessary. determined that it is appropriate to cover
The Department is aware that there is a these services with the requirements appli-
transition period between the publication of cable to commuter bus systems.
this rule and the effective date of many of its The definitions of ‘‘designated public
provisions (e.g., concerning facilities and transportation’’ and ‘‘specified public trans-
paratransit services) during which section portation’’ exclude transportation by air-
504 remains the basic authority for accessi- craft. Persons interested in matters con-
bility modifications. In this interval, the De- cerning access to air travel for individuals
partment expects recipients’ compliance with disabilities should refer to 14 CFR part
with section 504 to look forward to compli- 382, the Department’s regulation imple-
ance with the ADA provisions. That is, if a menting the Air Carrier Access Act. Since
recipient is making a decision about the the facility requirements of this part refer to
shape of its paratransit service between the facilities involved in the provision of des-
publication of this rule and January 26, 1992, ignated or specified public transportation,
the decision should be in the direction of airport facilities are not covered by this
service that will help to comply with post- part. DOJ makes clear that public and pri-
January 1992 requirements. A recipient that vate airport facilities are covered under its
severely curtailed its present paratransit title II and title III regulations, respectively.
service in October, and then asked for a The examples given in the definition of
three- or five-year phase-in of service under ‘‘facility’’ all relate to ground transpor-
its paratransit plan, would not be acting tation. We would point out that, since trans-
consistent with this policy. portation by passenger vessels is covered by
Likewise, the Department would view with this rule and by DOJ rules, such vessel-re-
disfavor any attempt by a recipient to accel- lated facilities as docks, wharfs, vessel ter-
erate the beginning of the construction, in- minals, etc. fall under this definition. It is
stallation or alteration of a facility to before intended that specific requirements for ves-
January 26, 1992, to ‘‘beat the clock’’ and sels and related facilities will be set forth in
avoid the application of this rule’s facility future rulemaking.
standards. The Department would be very re- The definitions of ‘‘fixed route system’’
luctant to approve grants, contracts, exemp- and ‘‘demand responsive system’’ derive di-
tion requests etc., that appear to have this rectly from the ADA’s definitions of these
effect. The purpose of the Department’s ad- terms. Some systems, like a typical city bus
ministration of section 504 is to ensure com- system or a dial-a-ride van system, fit clear-
pliance with the national policy stated in ly into one category or the other. Other sys-
the ADA, not to permit avoidance of it. tems may not so clearly fall into one of the
categories. Nevertheless, because how a sys-
SUBPART A—GENERAL tem is categorized has consequences for the
requirements it must meet, entities must de-
Section 37.3 Definitions
termine, on a case-by-case basis, into which
The definition of ‘‘commuter authority’’ category their systems fall.
includes a list of commuter rail operators In making this determination, one of the
drawn from a statutory reference in the key factors to be considered is whether the
ADA. It should be noted that this list is not individual, in order to use the service, must
exhaustive. Other commuter rail operators request the service, typically by making a
(e.g., in Chicago or San Francisco) would call.
also be encompassed by this definition. With fixed route service, no action by the
The definition of ‘‘commuter bus service’’ individual is needed to initiate public trans-
is important because the ADA does not re- portation. If an individual is at a bus stop at
quire complementary paratransit to be pro- the time the bus is scheduled to appear, then
vided with respect to commuter bus service that individual will be able to access the
operated by public entities. The rationale transportation system. With demand-
446
reponsive service, an additional step must be sion impairment is ADA paratransit eligible,
taken by the individual before he or she can but is caught possessing or using cocaine or
ride the bus, i.e., the individual must make marijuana on a paratransit vehicle, the tran-
a telephone call. sit provider can deny the individual further
eligibility. If the individual has successfully
(S. Rept. 101–116 at 54). undergone rehabilitation or is no longer
using drugs, as explained in the preamble to
Other factors, such as the presence or ab-
the DOJ rules, the transit provider could not
sence of published schedules, or the variation
continue to deny eligibility on the basis that
of vehicle intervals in anticipation of dif-
the individual was a former drug user or still
ferences in usage, are less important in mak- was diagnosed as a person with a substance
ing the distinction between the two types of abuse problem.
service. If a service is provided along a given We defined ‘‘paratransit’’ in order to note
route, and a vehicle will arrive at certain its specialized usage in the rule. Part 37 uses
times regardless of whether a passenger ac- this term to refer to the complementary
tively requests the vehicle, the service in paratransit service comparable to public
most cases should be regarded as fixed route fixed route systems which must be provided.
rather than demand responsive. Typically, paratransit is provided in a de-
At the same time, the fact that there is an mand responsive mode. Obviously, the rule
interaction between a passenger and trans- refers to a wide variety of demand responsive
portation service does not necessarily make services that are not ‘‘paratransit,’’ in this
the service demand responsive. For many specialized sense.
types of service (e.g., intercity bus, intercity The ADA’s definition of ‘‘over-the-road
rail) which are clearly fixed route, a pas- bus’’ may also be somewhat narrower than
senger has to interact with an agent to buy the common understanding of the term. The
a ticket. Some services (e.g., certain com- ADA definition focuses on a bus with an ele-
muter bus or commuter rail operations) may vated passenger deck over a baggage com-
use flag stops, in which a vehicle along the partment (i.e., a ‘‘Greyhound-type’’ bus).
route does not stop unless a passenger flags Other types of buses commonly referred to as
the vehicle down. A traveler staying at a ‘‘over-the-road buses,’’ which are sometimes
hotel usually makes a room reservation be- used for commuter bus or other service, do
fore hopping on the hotel shuttle. This kind not come within this definition. Only buses
of interaction does not make an otherwise that do come within the definition are sub-
fixed route service demand responsive. ject to the over-the-road bus exception to ac-
On the other hand, we would regard a sys- cessibility requirements in Title III of the
tem that permits user-initiated deviations ADA.
from routes or schedules as demand-respon- For terminological clarity, we want to
sive. For example, if a rural public transit point out that two different words are used
system (e.g., a recipient of funds under 49 in ADA regulations to refer to devices on
U.S.C. 5311) has a few fixed routes, the fixed which individuals with hearing impairments
route portion of its system would be subject communicate over telephone lines. DOJ uses
to the requirements of subpart F for com- the more traditional term ‘‘telecommuni-
plementary paratransit service. If the entity cations device for the deaf’’ (TDD). The Ac-
changed its system so that it operated as a cess Board uses a newer term, ‘‘text tele-
route-deviation system, we would regard it phone.’’ The DOT rule uses the terms
as a demand responsive system. Such a sys- interchangably.
tem would not be subject to complementary A ‘‘used vehicle’’ means a vehicle which
paratransit requirements. has prior use; prior, that is, to its acquisition
The definition of ‘‘individual with a dis- by its present owner or lessee. The definition
ability’’ excludes someone who is currently is not relevant to existing vehicles in one’s
engaging in the illegal use of drugs, when a own fleet, which were obtained before the
covered entity is acting on the basis of such ADA vehicle accessibility requirements took
use. This concept is more important in em- effect.
ployment and public accommodations con- A ‘‘vanpool’’ is a voluntary commuter ride-
texts than it is in transportation, and is dis- sharing arrangement using a van with a
cussed at greater length in the DOJ and seating capacity of more than seven persons,
EEOC rules. Essentially, the definition says including the driver. Carpools are not in-
that, although drug addiction (i.e., the status cluded in the definition. There are some sys-
or a diagnosis of being a drug abuser) is a tems using larger vehicles (e.g., buses) that
disability, no one is regarded as being an in- operate, in effect, as vanpools. This defini-
dividual with a disability on the basis of cur- tion encompasses such systems. Vanpools
rent illegal drug use. are used for daily work trips, between com-
Moreover, even if an individual has a dis- muters’ homes (or collection points near
ability, a covered entity can take action them) and work sites (or drop points near
against the individual if that individual is them). Drivers are themselves commuters
currently engaging in illegal drug use. For who are either volunteers who receive no
example, if a person with a mobility or vi- compensation for their efforts or persons
447
who are reimbursed by other riders for the quire a public entity to permit an individual
vehicle, operating, and driving costs. to participate in or benefit from the services,
The definition of ‘‘wheelchair’’ includes a programs, or activities of that public entity
wide variety of mobility devices. This inclu- when that individual poses a direct threat to
siveness is consistent with the legislative the health or safety of others. In deter-
history of the ADA (See S. Rept. 101–116 at mining whether an individual poses a direct
48). While some mobility devices may not threat to the health or safety of others, a
look like many persons’ traditional idea of a public entity must make an individualized
wheelchair, three- and more-wheeled devices, assessment, based on reasonable judgment
of many varied designs, are used by individ- that relies on current medical knowledge or
uals with disabilities and must be trans- on the best available objective evidence, to
ported. ‘‘Wheelchair’’ is defined in this rule ascertain: the nature, duration, and severity
as a mobility aid belonging to any class of of the risk; the probability that the poten-
three-or more-wheeled devices, usable in- tial injury will actually occur; and whether
doors, designed or modified for and used by reasonable modifications of policies, prac-
individuals with mobility impairments, tices, or procedures or the provision of auxil-
whether operated manually or powered. The iary aids or services will mitigate the risk.
‘‘three- or-more-wheeled’’ language in the
definition is intended to encompass wheel- Section 37.5 Nondiscrimination
chairs that may have additional wheels (e.g., This section states the general non-
two extra guide wheels in addition to the discrimination obligation for entities pro-
more traditional four wheels). viding transportation service. It should be
Persons with mobility disabilities may use noted that virtually all public and private
devices other than wheelchairs to assist with entities covered by this regulation are also
locomotion. Canes, crutches, and walkers, covered by DOJ regulations, which have
for example, are often used by people whose more detailed statements of general non-
mobility disabilities do not require use of a discrimination obligations.
wheelchair. These devices must be accommo- Under the ADA, an entity may not consign
dated on the same basis as wheelchairs. How- an individual with disabilities to a separate,
ever, the Department does not interpret its ‘‘segregated,’’ service for such persons, if the
rules to require transportation providers to individual can in fact use the service for the
accommodate devices that are not primarily general public. This is true even if the indi-
designed or intended to assist persons with vidual takes longer, or has more difficulty,
mobility disabilities (e.g., skateboards, bicy- than other persons in using the service for
cles, shopping carts), apart from general the general public.
policies applicable to all passengers who One instance in which this principal ap-
might seek to bring such devices into a vehi- plies concerns the use of designated priority
cle. Similarly, the Department does not in- seats (e.g., the so-called ‘‘elderly and handi-
terpret its rules to require transportation capped’’ seats near the entrances to buses). A
providers to permit an assistive device to be person with a disability (e.g., a visual im-
used in a way that departs from or exceeds pairment) may choose to take advantage of
the intended purpose of the device (e.g., to this accommodation or not. If not, it is con-
use a walker, even one with a seat intended trary to rule for the entity to insist that the
to allow temporary rest intervals, as a individual must sit in the priority seats.
wheelchair in which a passenger sits for the The prohibition on special charges applies
duration of a ride on a transit vehicle). to charges for service to individuals with dis-
The definition of wheelchair is not in- abilities that are higher than charges for the
tended to include a class of devices known as same or comparable services to other per-
‘‘other power-driven mobility devices’’ sons. For example, if a shuttle service
(OPMDs). OPMDs are defined in Department charges $20.00 for a ride from a given loca-
of Justice ADA rules as ‘‘any mobility device tion to the airport for most people, it could
powered by batteries, fuel, or other engines— not charge $40.00 because the passenger had a
whether or not designed primarily for use by disability or needed to use the shuttle serv-
individuals with mobility disabilities—that ice’s lift-equipped van. Higher mileage
is used by individuals with mobility disabil- charges for using an accessible vehicle would
ities for the purpose of locomotion, including likewise be inconsistent with the rule. So
golf carts * * * Segway[s]®, or any mobility would charging extra to carry a service ani-
device designed to operate in areas without mal accompanying an individual with a dis-
defined pedestrian routes, but that is not a ability.
wheelchair * * * .’’ DOT is placing guidance If a taxi company charges $1.00 to stow lug-
on its Web site concerning the use of gage in the trunk, it cannot charge $2.00 to
Segways in transportation vehicles and fa- stow a folding wheelchair there. This provi-
cilities. sion does not mean, however, that a trans-
The definition of ‘‘direct threat’’ is in- portation provider cannot charge non-
tended to be interpreted consistently with discriminatory fees to passengers with dis-

the parallel definition in Department of Jus- abilities. The taxi company in the above ex-
tice regulations. That is, part 37 does not re- ample can charge a passenger $1.00 to stow a
448
wheelchair in the trunk; it is not required to 38 with respect to vehicles. The entity would
waive the charge. This section does not pro- have to describe how its alternative mode of
hibit the fares for paratransit service which compliance would meet or exceed the level of
transit providers are allowed to charge under access to or usability of the vehicle that
§ 37.131(d). compliance with part 38 would otherwise pro-
A requirement for an attendant is incon- vide.
sistent with the general nondiscrimination It should be noted that equivalent facilita-
principle that prohibits policies that unnec- tion does not provide a means to get a waiv-
essarily impose requirements on individuals er of accessibility requirements. Rather, it is
with disabilities that are not imposed on a way in which comparable (not a lesser de-
others. Consequently, such requirements are gree of) accessibility can be provided by
prohibited. An entity is not required to pro- other means. The entity must consult with
vide attendant services (e.g., assistance in the public through some means of public par-
toileting, feeding, dressing), etc. ticipation in devising its alternative form of
This provision must also be considered in compliance, and the public input must be re-
light of the fact that an entity may refuse flected in the submission to the Adminis-
service to someone who engages in violent, trator (or the Federal Railroad Adminis-
seriously disruptive, or illegal conduct. If an trator in appropriate cases, such as a request
entity may legitimately refuse service to concerning Amtrak). The Administrator will
someone, it may condition service to him on make a case-by-case decision about whether
actions that would mitigate the problem. compliance with part 38 was achievable and,
The entity could require an attendant as a if not, whether the proffered alternative
condition of providing service it otherwise complies with the equivalent facilitation
had the right to refuse. standard. DOT intends to consult with the
The rule also points out that involuntary Access Board in making these determina-
conduct related to a disability that may of- tions.
fend or annoy other persons, but which does This equivalent facilitation provision can
not pose a direct threat, is not a basis for reapply to buses or other motor vehicles as
fusal of transportation. For example, some
well as to rail cars and vehicles. An example
persons with Tourette’s syndrome may make
of what could be an equivalent facilitation
involuntary profane exclamations. These
would concern rail cars which would leave
may be very annoying or offensive to others,
too wide a horizontal gap between the door
but would not be a ground for denial of serv-
and the platform. If the operator used a com-
ice. Nor would it be consistent with the non-
bination of bridgeplates and personnel to
discrimination requirements of this part to
bridge the gap, it might be regarded as an
deny service based on fear or misinformation
equivalent facilitation in appropriate cir-
about the disability. For example, a transit
cumstances.
provider could not deny service to a person
with HIV disease because its personnel or Section 37.7(c) clarifies which specifica-
other passengers are afraid of being near peo- tions must be complied with for over-the-
ple with that condition. road buses purchased by public entities
This section also prohibits denials of serv- (under subpart D of part 37) or private enti-
ice or the placing on services of conditions ties standing in the shoes of the public enti-
inconsistent with this part on individuals ty (as described in § 37.23 of part 37). This sec-
with disabilities because of insurance com- tion is necessary to make clear that over-
pany policies or requirements. If an insur- the-road coaches must be accessible, when
ance company told a transit provider that it they are purchased by or in furtherance of a
would withdraw coverage, or raise rates, un- contract with a public entity. While the Oc-
less a transit provider refused to carry per- tober 4, 1990 rule specified that over-the-road
sons with disabilities, or unless the provider coaches must be accessible under these cir-
refused to carry three-wheeled scooters, this cumstances, we had not previously specified
would not excuse the provider from pro- what constitutes accessibility.
viding the service as mandate by this part. Accordingly, this paragraph specifies that
This is not a regulatory requirement on in- an over-the-road bus must have a lift which
surance companies, but simply says that meets the performance requirements of a
covered entities must comply with this part, regular bus lift (see § 38.23) and must meet
even in the face of difficulties with their in- the interim accessibility features specified
surance companies. for all over-the-road buses in part 3, subpart
G.
Section 37.7 Standards for Accessible Vehicles
Section 37.9 Standards for Transportation
This section makes clear that, in order to Facilities
meet accessibility requirements of this rule,
vehicles must comply with Access Board This section makes clear that, in order to
standards, incorporated in DOT rules as 49 meet accessibility requirements of this rule,
CFR part 38. Paragraph (b) of § 37.7 spells out vehicles must comply with appendix A to
a procedure by which an entity (public or part 37, which incorporates the Access Board
private) can deviate from provisions of part facility guidelines.
449
Paragraph (b) of § 37.9 provides that, under cerning TDDs). However, because appendix A
certain circumstances, existing accessibility does contain TDD requirements, the key sta-
modifications to key station facilities do not tion must now be altered in accordance with
need to be modified further in order to con- the standards for TDDs. Similarly, earlier al-
form to appendix A. This is true even if the teration of an entire station in accordance
standards under which the facility was modi- with UFAS or the ANSI standard would not
fied differ from the Access Board guidelines relieve an entity from compliance with any
or provide a lesser standard of accessibility. applicable provision concerning the gap be-
To qualify for this ‘‘grandfathering,’’ alter- tween the platform between the platform
ations must have been before January 26, and the vehicle in a key station, because nei-
1992. As in other facility sections of the rule, ther of these two standards addresses the
an alteration is deemed to begin with the interface between vehicle and platform.
issuance of a notice to proceed or work One further clarification concerning the
order. The existing modifications must con- implication of this provision deals with a bus
form to ANSI A–117.1, Specifications for loading island at which buses pull up on both
Making Buildings and Facilities Accessible sides of the island. It would be possible to
to and Usable by the Physically Handicapped read the bus pad specification to require the
1980, or the Uniform Federal Accessibility island to be a minimum of 84 inches wide
Standard. (UFAS). (two widths of a bus stop pad), so that a lift
For example, if an entity used a Federal could be deployed from buses on both sides of
grant or loan or money to make changes to the island at the same time. A double-wide
a building, it would already have had to com- bus pad, however, is likely to exceed avail-
ply with the Uniform Federal Accessibility able space in most instances.
Standards. Likewise, if a private entity, act- Where there is space, of course, building a
ing without any Federal money in the double-wide pad is one acceptable option
project, may have complied with the ANSI under this rule. However, the combination of
A117.1 standard. So long as the work was a pad of normal width and standard oper-
done in conformity with the standard that ational practices may also suffice. (Such
was in effect when the work was done, the al- practices could be offered as an equivalent
teration will be considered accessible.
facilitation.) For example, buses on either
However, because one modification was
side of the island could stop at staggered lo-
made to a facility under one of these stand-
cations (i.e., the bus on the left side could
ards, the entity still has a responsibility to
stop several feet ahead of the bus on the
make other modifications needed to comply
right side), so that even when buses were on
with applicable accessibility requirements.
both sides of the island at once, their lifts
For example, if an entity has made some
could be deployed without conflict. Where it
modifications to a key station according to
is possible, building the pad a little longer
one of these older standards, but the modi-
fications do not make the key station en- than normal size could facilitate such an ap-
tirely accessible as this rule requires, then proach. In a situation where staggered stop
additional modifications would have to be areas are not feasible, an operational prac-
made according to the standards of appendix tice of having one bus wait until the other’s
A. Suppose this entity has put an elevator lift cycle had been completed could do the
into the station to make it accessible to in- job. Finally, the specification does not re-
dividuals who use wheelchairs. If the eleva- quire that a pad be built at all. If there is
tor does not fully meet appendix A stand- nothing that can be done to permit lift de-
ards, but met the applicable ANSI standard ployment on both sides of an island, the
when it was installed, it would not need fur- buses can stop on the street, or some other
ther modifications now. But if it had not allocation, so long as the lift is deployable.
ready done so, the entity would have to in- Like § 37.7, this section contains a provi-
stall a tactile strip along the platform edge sion allowing an entity to request approval
in order to make the key station fully acces- for providing accessibility through an equiv-
sible as provided in this rule. The tactile alent facilitation.
strip would have to meet appendix A require-
Section 37.11 Administrative Enforcement
ments.
The rule specifically provides that This section spells out administrative
‘‘grandfathering’’ applies only to alterations means of enforcing the requirements of the
of individual elements and spaces and only ADA. Recipients of Federal financial assist-
to the extent that provisions covering those ance from DOT (whether public or private
elements or spaces are found in UFAS or entities) are subject to DOT’s section 504 en-
AHSI A117.1. For example, alterations to the forcement procedures. The existing proce-
telephones in a key station may have been dures, including administrative complaints
carried out in order to lower them to meet to the DOT Office of Civil Rights, investiga-
the requirements of UFAS, but tele- tion, attempts at conciliation, and final re-
communications devices for the deaf (TDDs) sort to proceedings to cut off funds to a non-
were not installed. (Neither UFAS nor the complying recipient, will continue to be
ANSI standard include requirements con- used.
450
In considering enforcement matters, the refuse to pick up a person based on that per-
Department is guided by a policy that em- son’s disability. Such a refusal may also be a
phasizes compliance. The aim of enforcement violation of a county’s taxi rules, subjecting
action, as we see it, is to make sure that en- the violator to a fine or suspension of oper-
tities meet their obligations, not to impose ating privileges. Both ADA and local rem-
sanctions for their own sake. The Depart- edies could proceed in such a case.
ment’s enforcement priority is on failures to Labor-management agreements cannot
comply with basic requirements and ‘‘pat- stand in conflict with the requirements of
tern or practice’’ kinds of problems, rather the ADA and this rule. For example, if a
than on isolated operational errors. labor-management agreement provides that
Under the DOJ rules implementing title II vehicle drivers are not required to provide
of the ADA (28 CFR part 35), DOT is a ‘‘des- assistance to persons with disabilities in a
ignated agency’’ for enforcement of com- situation in which this rule requires such as-
plaints relating to transportation programs sistance, then the assistance must be pro-
of public entities, even if they do not receive vided notwithstanding the agreement. Labor
Federal financial assistance. When it re- and management do not have the authority
ceives such a complaint, the Department to agree to violate requirements of Federal
will investigate the complaint, attempt con- law.
ciliation and, if conciliation is not possible,
take action under section 504 and/or refer the Section 37.13 Effective Date for Certain Vehicle
matter to the DOJ for possible further ac- Lift Specifications.
tion. This section contains an explicit state-
Title III of the ADA does not give DOT any ment of the effective date for vehicle lift
administrative enforcement authority with platform specifications. The Department has
respect to private entities whose transpor- decided to apply the new part 38 lift platform
tation services are subject to part 37. In its specifications to solicitations after January
title III rule (28 CFR part 36), DOJ assumes 25, 1992. As in the October 4, 1990, rule imple-
enforcement responsibility for all title III menting the acquisition requirements; the
matters. If the Department of Transpor- date of a solicitation is deemed to be the
tation receives complaints of violations of closing date for the submission of bids or of-
part 37 by private entities, it will refer the fers in a procurement.
matters to the DOJ.
It should be pointed out that the ADA in- SUBPART B—APPLICABILITY
cludes other enforcement options. Individ-
uals have a private right of action against Section 37.21 Applicability—General
entities who violate the ADA and its imple- This section emphasizes the broad applica-
menting regulations. The DOJ can take vio- bility of part 37. Unlike section 504, the ADA
lators to court. These approaches are not and its implementing rules apply to entities
mutually exclusive with the administrative whether or not they receive Federal finan-
enforcement mechanisms described in this cial assistance. They apply to private and
section. An aggrieved individual can com- public entities alike. For entities which do
plain to DOT about an alleged transpor- receive Federal funds, compliance with the
tation violation and go to court at the same ADA and part 37 is a condition of compliance
time. Use of administrative enforcement pro- with section 504 and 49 CFR part 27, DOT’s
cedures is not, under titles II and III, an ad- section 504 rule.
ministrative remedy that individuals must Virtually all entities covered by this rule
exhaust before taking legal action. also are covered by DOJ rules, either under
We also would point out that the ADA does 28 CFR part 36 as state and local program
not assert any blanket preemptive authority providers or under 28 CFR part 35 as opera-
over state or local nondiscrimination laws tors of places of public accommodation. Both
and enforcement mechanisms. While require- sets of rules apply; one does not override the
ments of the ADA and this regulation would other. The DOT rules apply only to the enti-
preempt conflicting state or local provisions ty’s transportation facilities, vehicles, or
(e.g., a building code or zoning ordinance services; the DOJ rules may cover the enti-
that prevents compliance with appendix A or ty’s activities more broadly. For example, if
other facility accessibility requirements, a a public entity operates a transit system and
provision of local law that said bus drivers a zoo, DOT’s coverage would stop at the
could not leave their seats to help secure transit system’s edge, while DOJ’s rule
wheelchair users), the ADA and this rule do would cover the zoo as well.
not prohibit states and localities from legis- DOT and DOJ have coordinated their rules,
lating in areas relating to disability. For ex- and the rules have been drafted to be con-
ample, if a state law requires a higher degree sistent with one another. Should, in the con-
of service than the ADA, that requirement text of some future situation, there be an ap-
could still be enforced. Also, states and lo- parent inconsistency between the two rules,
calities may continue to enforce their own the DOT rule would control within the
parallel requirements. For example, it would sphere of transportation services, facilities
be a violation of this rule for a taxi driver to and vehicles.
451
Section 37.23 Service Under Contract contemplation of use on the contract, as is
acquiring a vehicle obstensibly for other
This section requires private entities to
‘‘stand in the shoes’’ of public entities with service provided by the entity and then regu-
whom they contract to provide transpor- larly rotating it into service under the con-
tation services. It ensures that, while a pub- tract.
lic entity may contract out its service, it The ‘‘stand in the shoes’’ requirement is
may not contract away its ADA responsibil- applicable only to the vehicles and service
ities. The requirement applies primarily to (public entity service requirements, like
vehicle acquisition requirements and to serv- § 37.163, apply to a private entity in these sit-
ice provision requirements. uations) provided under contract to a public
If a public entity wishes to acquire vehi- entity. Public entity requirements clearly do
cles for use on a commuter route, for exam- not apply to all phases of a private entity’s
ple, it must acquire accessible vehicles. It operations, just because it has a contract
may acquire accessible over-the-road buses, with a public entity. For example, a private
it may acquire accessible full-size transit bus company, if purchasing buses for service
buses, it may acquire accessible smaller under contract to a public entity, must pur-
buses, or it may acquire accessible vans. It chase accessible buses. The same company,
does not matter what kind of vehicles it ac- to the extent permitted by the private entity
quires, so long as they are accessible. On the provisions of this part, may purchase inac-
other hand, if the public entity wants to use cessible vehicles for its tour bus operations.
inaccessible buses in its existing fleet for the The Department also notes that the
commuter service, it may do so. All replace- ‘‘stands in the shoes’’ requirement may dif-
ment vehicles acquired in the future must, of fer depending on the kind of service in-
course, be accessible. volved. The public entity’s ‘‘shoes’’ are
Under this provision, a private entity shaped differently, for example, depending
which contracts to provide this commuter on whether the public entity is providing
service stands in the shoes of the public enti- fixed route or demand responsive service to
ty and is subject to precisely the same re- the general public. In the case of demand re-
quirements (it is not required to do more sponsive service, a public entity is not re-
than the public entity). If the private entity quired to buy an accessible vehicle if its de-
acquires vehicles used to provide the service,
mand responsive system, when viewed in its
the vehicles must be accessible. If it cannot,
entirety, provides service to individuals with
or chooses not to, acquire an accessible vehi-
disabilities equivalent to its service to other
cle of one type, it can acquire an accessible
persons. A private contractor providing a
vehicle of another type. Like the public enti-
portion of this paratransit service would not
ty, it can provide the service with inacces-
necessarily have to acquire an accessible ve-
sible vehicles in its existing fleet.
hicle if this equivalency test is being met by
The import of the provision is that it re-
the system as a whole. Similarly, a public
quires a private entity contracting to pro-
entity can, after going through a ‘‘good faith
vide transportation service to a public entity
to follow the rules applicable to the public efforts’’ search, acquire inaccessible buses. A
entity. For the time being, a private entity private entity under contract to the public
operating in its own right can purchase a can do the same. ‘‘Stand in the shoes’’ may
new over-the-road bus inaccessible to indi- also mean that, under some circumstances, a
viduals who use wheelchairs. When that pri- private contractor need not acquire acces-
vate entity operates service under contract sible vehicles. If a private company con-
to the public entity, however, it is just as ob- tracts with a public school district to pro-
ligated as the public entity itself to purchase vide school bus service, it is covered, for that
an accessible bus for use in that service, purpose, by the exemption for public school
whether or not it is an over-the-road bus. transportation.
The ‘‘stand in the shoes’’ requirement ap- In addition, the requirement that a private
plies not only to vehicles acquired by private entity play by the rules applicable to a pub-
entities explicitly under terms of an exe- lic entity can apply in situations involving
cuted contract to provide service to a public an ‘‘arrangement or other relationship’’ with
entity, but also to vehicles acquired ‘‘in con- a public entity other than the traditional
templation of use’’ for service under such a contract for service. For example, a private
contract. This language is included to ensure utility company that operates what is, in es-
good faith compliance with accessibility re- sence, a regular fixed route public transpor-
quirements for vehicles acquired before the tation system for a city, and which receives
execution of a contract. Whether a par- funding under 49 U.S.C. 5307 or 49 U.S.C. 5309
ticular acquisition is in contemplation of use via an agreement with a state or local gov-
on a contract will be determined on a case- ernment agency, would fall under the provi-
by-case basis. However, acquiring a vehicle a sions of this section. The provider would
short time before a contract is executed and have to comply with the vehicle acquisition,
then using it for the contracted service is an paratransit, and service requirements that
indication that the vehicle was acquired in would apply to the public entity through
452
which it receives the FTA funds, if that pub- not require the provision of complementary
lic entity operated the system itself. The De- paratransit or submitting a paratransit plan.
partment would not, however, construe this As a result, private and public universities
section to apply to situations in which the will have very similar obligations under the
degree of FTA funding and state and local rule.
agency involvement is considerably less, or
in which the system of transportation in- Section 37.27 Transportation for Elementary
volved is not a de facto surrogate for a tradi- and Secondary Education Systems
tional public entity fixed route transit sys- This section restates the statutory exemp-
tem serving a city (e.g., a private non-profit tion from public entity requirements given
social service agency which receives funds to public school transportation. This exten-
under 49 U.S.C. 5310 to purchase a vehicle). sion also applies to transportation of pre-
This section also requires that a public en- school children to Head Start or special edu-
tity not diminish the percentage of acces- cation programs which receive Federal as-
sible vehicles in its fleet through con- sistance. It also applies to arrangements per-
tracting. For example, suppose a public enti- mitting pre-school children of school bus
ty has 100 buses in its fleet, of which 20 are drivers to ride a school bus or allowing teen-
accessible, meaning that 20 percent of its age mothers to be transported to day care fa-
fleet is accessible. The entity decides to add
cilities at a school or along a school bus
a fixed route, for which a contractor is en-
route so that their mothers may continue to
gaged. The contractor is supplying ten of its
attend school (See H. Rept. 101–485, pt. 1 at
existing inaccessible buses for the fixed
27). The situation for private schools is more
route. To maintain the 20 percent accessi-
complex. According to the provision, a pri-
bility ratio, there would have to be 22 acces-
vate elementary or secondary school’s trans-
sible buses out of the 110 buses now in oper-
portation system is exempt from coverage
ation in carrying out the public entity’s
under this rule if all three of the following
service. The public entity could maintain its
conditions are met: (1) The school receives
20 percent level of accessibility through any
one or more of a number of means, such as Federal financial assistance; (2) the school is
having the contractor to provide two acces- subject to section 504; and (3) the school’s
sible buses, retrofitting two if its own exist- transportation system provides transpor-
ing buses, or accelerating replacement of tation services to individuals with disabil-
two of its own inaccessible buses with acces- ities, including wheelchair users, equivalent
sible buses. to those provided to individuals without dis-
This rule applies the ‘‘stand in the shoes’’ abilities. The test of equivalency is the same
principle to transactions wholly among pri- as that for other private entities, and is de-
vate entities as well. For example, suppose a scribed under § 37.105. If the school does not
taxi company (a private entity primarily en- meet all these criteria, then it is subject to
gaged in the business of transporting people) the requirements of Part 37 for private enti-
contracts with a hotel to provide airport ties not primarily engaged in the business of
shuttle van service. With respect to that transporting people.
service, the taxi company would be subject The Department notes that, given the con-
to the requirements for private entities not stitutional law on church-state separation,
primarily in the business of transporting it is likely that church-affiliated private
people, since it would be ‘‘standing in the schools do not receive Federal financial as-
shoes’’ of the hotel for that purpose. sistance. To the extent that these schools’
transportation systems are operated by reli-
Section 37.25 University Transportation gious entities or entities controlled by reli-
Systems gious organizations, they are not subject to
Private university-operated transportation the ADA at all, so this section does not apply
systems are subject to the requirements of to them.
this rule for private entities not primarily Section 37.29 Private Providers of Taxi Service
engaged in the business of transporting peo-
ple. With one important exception, public This section first recites that providers of
university-operated transportation systems taxi service are private entities primarily
are subject to the requirements of the rule engaged in the business of transporting peo-
for public entities. The nature of the systems ple which provide demand responsive service.
involved—demand-responsive or fixed For purposes of this section, other transpor-
route—determines the precise requirements tation services that involve calling for a car
involved. and a driver to take one places (e.g., lim-
For public university fixed route systems, ousine services, of the kind that provide lux-
public entity requirements apply. In the case ury cars and chauffeurs for senior proms and
of fixed route systems, the requirements for analogous adult events) are regarded as taxi
commuter bus service would govern. This services.
has the effect of requiring the acquisition of Under the ADA, no private entity is re-
accessible vehicles and compliance with quired to purchase an accessible automobile.
most other provisions of the rule, but does If a taxi company purchases a larger vehicle,
453
like a van, it is subject to the same rules as The requirement for a public vanpool sys-
any other private entity primarily engaged tem is that it purchase or lease an accessible
in the business of transporting people which vehicle unless it can demonstrate that it
operates a demand responsive service. That provides equivalent service to individuals
is, unless it is already providing equivalent with disabilities, including individuals who
service, any van it acquires must be acces- use wheelchairs, as it provides to individuals
sible. Equivalent service is measured accord- without disabilities. For a public vanpool
ing to the criteria of § 37.105. Taxi companies system, the equivalency requirement would
are not required to acquire vehicles other be met if an accessible vehicle is made avail-
than automobiles to add accessible vehicles able to and used by a vanpool when an indi-
to their fleets. vidual with a disability needs such a vehicle
Taxi companies are subject to non- to participate. Public vanpool systems may
discrimination obligations. These obliga- meet this requirement through obtaining a
tions mean, first, that a taxi service may not percentage of accessible vehicles that is rea-
deny a ride to an individual with a disability sonable in light of demand for them by par-
who is capable of using the taxi vehicles. It ticipants, but this is not required, so long as
would be discrimination to pass up a pas- the entity can respond promptly to requests
senger because he or she was blind or used a for participation in a vanpool with the provi-
wheelchair, if the wheelchair was one that sion of an accessible van when needed.
could be stowed in the cab and the passenger There is no requirement for private van-
could transfer to a vehicle seat. Nor could a pools, defined as a voluntary arrangement in
taxi company insist that a wheelchair user which the driver is compensated only for ex-
wait for a lift-equipped van if the person penses.
could use an automobile.
It would be discrimination for a driver to Section 37.33 Airport Transportation Systems
refuse to assist with stowing a wheelchair in Fixed route transportation systems oper-
the trunk (since taxi drivers routinely assist ated by public airports are regarded by this
passengers with stowing luggage). It would section as fixed route commuter bus sys-
be discrimination to charge a higher fee or tems. As such, shuttles among terminals and
fare for carrying a person with a disability parking lots, connector systems among the
than for carrying a non-disabled passenger, airport and a limited number of other local
or a higher fee for stowing a wheelchair than destinations must acquire accessible buses,
for stowing a suitcase. (Charging the same but are not subject to complementary para-
fee for stowing a wheelchair as for stowing a transit requirements. (If a public airport op-
suitcase would be proper, however.) The fact erates a demand responsive system for the
that it may take somewhat more time and general public, it would be subject to the
effort to serve a person with a disability rules for demand responsive systems for the
than another passenger does not justify dis- general public.)
criminatory conduct with respect to pas- It should be noted that this section applies
sengers with disabilities. only to transportation services that are op-
State or local governments may run user- erated by public airports themselves (or by
side subsidy arrangements for the general private contractors who stand in their
public (e.g., taxi voucher systems for senior shoes). When a regular urban mass transit
citizens or low-income persons). Under the system serves the airport, the airport is sim-
DOJ title II rule, these programs would have ply one portion of its service area, treated
to meet ‘‘program accessibility’’ require- for purposes of this rule like the rest of its
ments, which probably would require that service area.
accessible transportation be made available Virtually all airports are served by taxi
to senior citizens or low-income persons with companies, who are subject to § 37.29 at air-
disabilities. This would not directly require ports as elsewhere. In addition, many air-
private taxi providers who accept the vouch- ports are served by jitney or shuttle sys-
ers to purchase accessible vehicles beyond tems. Typically, these systems operate in a
the requirements of this rule, however. route-deviation or similar variable mode in
which there are passenger-initiated decisions
Section 37.31 Vanpools
concerning destinations. We view such sys-
This provision applies to public vanpool tems as demand responsive transportation
systems the requirements for public entities operated by private entities primarily en-
operating demand responsive systems for the gaged in the business of transporting people.
general public. A public vanpool system is Since many of these operators are small
one operated by a public entity, or in which businesses, it may be difficult for them to
a public entity owns or purchases or leases meet equivalency requirements on their own
the vehicles. Lesser degrees of public in- without eventually having all or nearly all
volvement with an otherwise private ride- accessible vehicles, which could pose eco-
sharing arrangement (e.g., provision of park- nomic problems. One suggested solution to
ing spaces, HOV lanes, coordination or clear- this problem is for the operators serving a
inghouse services) do not convert a private given airport to form a pool or consortium
into a public system. arrangement, in which a number of shared
454
accessible vehicles would meet the transpor- The service that the carrier provides in
tations of individuals with disabilities. As in this situation is essentially a continuation
other forms of transportation, such an ar- by other means of its primary service. We
rangement would have to provide service in view the obligation of the rail operator as
a nondiscriminatory way (e.g., in an inte- being to ensure that all passengers, includ-
grated setting, no higher fares for accessible ing individuals with disabilities, are pro-
service). vided service to the destination in a non-
discriminatory manner. This includes, for in-
Section 37.35 Supplemental Service for Other stance, providing service in the most inte-
Transportation Modes grated setting appropriate to the needs of
This section applies to a number of situa- the individual and service that gets a pas-
tions in which an operator of another trans- senger with a disability to the destination as
portation mode uses bus or other service to soon as other passengers.
connect its service with limited other points.
Section 37.37 Other Applications
One instance is when an intercity railroad
route is set up such that the train stops out- The ADA specifically defines ‘‘public enti-
side the major urban center which is the ac- ty.’’ Anything else is a ‘‘private entity.’’ The
tual destination for many passengers. Exam- statute does not include in this definition a
ples mentioned to us include bus service run private entity that receives a subsidy or
by Amtrak from a stop in Columbus, Wis- franchise from a state or local government
consin, to downtown Madison, or from San or is regulated by a public entity. Only
Jose to San Francisco. Such service is fixed through the definition of ‘‘operates’’ (see dis-
route, from the train station to a few points cussion of § 37.23) do private entities’ rela-
in the metropolitan area, with a schedule tionships to public entities subject private
keyed to the train schedule. It would be re- entities to the requirements for public enti-
garded as commuter bus service, meaning ties. Consequently, in deciding which provi-
that accessible vehicles would have to be ac- sions of the rule to apply to an entity in
quired but complementary paratransit was other than situations covered by § 37.23, the
not required. nature of the entity—public or private—is
Another instance is one in which a com- determinative.
muter rail operator uses fixed route bus serv- Transportation service provided by public
ice as a dedicated connection to, or exten- accommodations is viewed as being provided
sion of, its rail service. The service may go by private entities not primarily engaged in
to park and ride lots or other destinations the business of transporting people. Either
beyond the vicinity of the rail line. Again, the provisions of this part applicable to de-
this service shares the characteristics of mand responsive or fixed route systems
commuter bus service that might be used apply, depending on the nature of a specific
even if the rail line were not present, and system at a specific location. The distinction
does not attempt to be a comprehensive between fixed route and demand responsive
mass transit bus service for the area. systems is discussed in connection with the
Of course, there may be instances in which definitions section above. It is the responsi-
a rail operator uses demand responsive in- bility of each private entity, in the first in-
stead of fixed route service for a purpose of stance, to assess the nature of each transpor-
this kind. In that case, the demand respon- tation system on a case-by-case basis and de-
sive system requirements of the rule would termine the applicable rules.
apply. On the other hand, conveyances used for
Private entities (i.e., those operating recreational purposes, such as amusement
places of public accommodation) may oper- park rides, ski lifts, or historic rail cars or
ate similar systems, as when a cruise ship trolleys operated in museum settings, are
operator provides a shuttle or connector be- not viewed as transportation under this rule
tween an airport and the dock. This service at all. Other conveyances may fit into this
is covered by the rules governing private en- category as well.
tities not primarily engaged in the business The criterion for determining what re-
of transporting people. Fixed route or de- quirements apply is whether the convey-
mand responsive rules apply, depending on ances are primarily an aspect of the rec-
the characteristics of the system involved. reational experience itself or a means of get-
One situation not explicitly covered in this ting from Point A to Point B. At a theme
section concerns ad hoc transportation ar- park, for instance, a large roller coaster
ranged, for instance, by a rail operator when (though a ‘‘train’’ of cars on a track) is a
the train does not wind up at its intended public accommodation not subject to this
destination. For example, an Amtrak train rule; the tram that transports the paying
bound for Philadelphia may be halted at Wil- customers around the park, with a stop at
mington by a track blockage between the the roller coaster, is a transportation system
two cities. Usually, the carrier responds by subject to the ‘‘private, not primarily’’ pro-
providing bus service to the scheduled des- visions of this part.

tination or to the next point where rail serv- Employer-provided transportation for em-
ice can resume. ployees is not covered by this part, but by
455
EEOC rules under title I of the ADA. (Public 1992. There are Federal requirements that
entities are also subject to DOJ’s title II apply to all recipients of federal money, de-
rules with respect to employment.) This ex- pending on the circumstances.
clusion from part 37 applies to transpor- First, if an entity is a Federal recipient
tation services provided by an employer and uses Federal dollars to construct the fa-
(whether access to motor pool vehicles, cility, regulations implementing section 504
parking shuttles, employer-sponsored van of the Rehabilitation Act of 1973 (29 U.S.C.
pools) that is made available solely to its 794), require the recipient to comply with the
own employees. If an employer provides serv- Uniform Federal Accessibility Standards.
ice to its own employees and other persons, Second, since the Civil Rights Restoration
such as workers of other employers or cus- Act of 1987 (Pub. L. 100–259), an operation of
tomers, it would be subject to the require- a recipient of federal funds would also have
ments of this part from private entities not to comply with section 504, even though the
primarily engaged in the business of trans- activity was not paid for with Federal funds.
porting people or public entities, as applica- Thus, the Uniform Federal Accessibility
ble. Standards would apply to this construction
The rule looks to the private entity actu- as well.
ally providing the transportation service in As mentioned above, the Department in-
question in determining whether the ‘‘pri- tends, in the period before January 26, 1991,
vate, primarily’’ or ‘‘private, not primarily’’ to view compliance with section 504 in light
rules apply. For example, Conglomerate, of compliance with ADA requirements (this
Inc., owns a variety of agribusiness, petro- point applies to alterations as well as new
chemical, weapons system production, and construction). Consequently, in reviewing re-
fast food corporations. One of its many sub- quests for grants, contract approvals, exemp-
sidiaries, Green Tours, Inc., provides charter tions, etc., (whether with respect to ongoing
bus service for people who want to view na- projects or new, experimental, or one-time
tional parks, old-growth forests, and other efforts), the Department will, as a policy
environmentally significant places. It is matter, seek to ensure compliance with ADA
probably impossible to say in what business standards.
Conglomerate, Inc. is primarily engaged, but
it clearly is not transporting people. Green Section 37.42
Tours, Inc., on the other hand, is clearly pri- Service in an integrated setting to pas-
marily engaged in the business of trans- sengers at intercity, commuter, and high-
porting people, and the rule treats it as such. speed rail station platforms constructed or
On the other hand, when operating a trans- altered after February 1, 2012.
portation service off to the side of to the Individuals with disabilities, including in-
main business of a public accommodation dividuals who use wheelchairs, must have ac-
(e.g., a hotel shuttle), the entity as a whole cess to all accessible cars in each train using
would be considered. Even if some dedicated a new or altered station. This performance
employees are used to provide the service, standard will apply at stations where con-
shuttles and other systems provided as a struction or alteration of platforms begins
means of getting to, from, or around a public 135 days or more after the rule is published.
accommodation remain solidly in the ‘‘pri- The performance standard does not require
vate, not primarily’’ category. rail operators to retrofit existing station
platforms or cars. The requirement is pro-
SUBPART C—TRANSPORTATION FACILITIES spective, and section 37.42 does not require
Section 37.41 Construction of Transportation retrofit of existing stations (though compli-
Facilities by Public Entities ance with existing disability nondiscrimina-
tion requirements not being altered is still
Section 37.41 contains the general require- required). To meet this performance stand-
ment that all new facilities constructed ard on lines or systems where track passing
after January 25, 1992, be accessible to and through stations and adjacent to platforms
usable by individuals with disabilities. This is shared with existing freight rail oper-
provision tracks the statute closely, and is ations, passenger railroads that do not
analogous to a provision in the DOJ regula- choose to provide level-entry boarding may,
tions for private entities. Section 226 of the after obtaining FRA and/or FTA approval,
ADA provides little discretion in this re- use car-borne lifts, ramps or other devices,
quirement. mini-high platforms (making multiple stops
The requirement is keyed to construction where necessary to accommodate passengers
which ‘‘begins’’ after January 25, 1992. The wishing to use different cars of the train), or
regulation defines ‘‘begin’’ to mean when a movable station-based lifts.
notice to proceed order has been issued. This On commuter, intercity, or high-speed rail
term has a standard meaning in the con- lines or systems in which track passing
struction industry, as an instruction to the through stations and adjacent to platforms
contractor to proceed with the work. is not shared with existing freight rail oper-
Questions have been raised concerning ations, the performance standard must be
which standards apply before January 26, met by providing level-entry boarding to all
456
accessible cars in each train that serves new people with disabilities are trying to access
or altered stations on the line or system. For at a given station. If a train has eight acces-
example, if a new commuter or high-speed sible cars, and wheelchair users want to
rail line or system is being built, and the enter only cars 2 and 7 (see discussion below
track adjacent to platforms is not shared of passenger notification), then railroad per-
with freight traffic (e.g., it is a passenger sonnel need to deploy lifts or bridge plates
rail-only system, or a passing or gauntlet only at cars 2 and 7, not at the other cars.
track exists for freight traffic), then the sta- Similarly, the rule requires operators to pro-
tions would have to provide level-entry vide access only to available cars at a sta-
boarding. Other options would not be per- tion. If a train has eight accessible cars, but
mitted. the platform only serves cars 1 through 6,
If a platform being constructed or altered then railroad personnel need to deploy lifts
is not adjacent to track used for freight, but or bridge plates only at cars that people with
the track and platform are used by more disabilities are trying to access and that are
than one passenger railroad (e.g., Amtrak available to all passengers. We would also
and a commuter railroad), the possibility of point out that wheelchair positions on rail
the platform serving cars with different door passenger cars are intended to serve wheel-
heights exists. In this situation, the level- chair users, and railroad operators should
entry boarding requirement continues to take steps to ensure that these spaces are
exist. Generally, the platform should be level available for wheelchair users and not for
with respect to the system that has the other uses. For example, it would be con-
lower boarding height. This is because it is trary to the rule for a wheelchair user to be
not good safety practice to make passengers told that he or she could not use car 7 be-
step down (or be lifted down or use ramps to cause the wheelchair spaces were filled with
get down) to board a train. For example, if other passengers’ luggage from a previous
Amtrak operates through a station with cars stop.
that are 15 inches ATR, and a commuter rail- In order to ensure that access was pro-
road uses the same platform with cars that vided, passengers would have to notify rail-
are 25 inches ATR, the platform would be road personnel. For example, if a passenger
level with respect to the Amtrak cars. The at a station wanted to use a station-based
commuter railroad would have to provide an- lift to access car 6, the passenger would re-
other means of access, such as lifts. In all quest the use of car 6 and railroad personnel
such cases where mixed rail equipment will would deploy the lift at that car. Likewise,
be used, the rule requires that both FRA and at a station using a mini-high platform, a
FTA be consulted by the railroads involved. passenger on this platform would inform
As in other cases where level-entry boarding train personnel that he or she wanted to
is not used, the railroad must obtain FTA enter car 5, whereupon the train would pull
and/or FRA approval for the means the rail- forward so that car 5 was opposite the mini-
road wants to use to meet the performance high platform. We contemplate that these re-
standard. quests would be made when the train arrives,
The details of the ‘‘track passing through and railroads could not insist on advance no-
stations and adjacent to platforms is shared tice (e.g., the railroad could not require a
with existing freight rail operations’’ lan- passenger to call a certain time in advance
guage are important. There may be stations to make a ‘‘reservation’’ to use a lift to get
that serve lines that are shared, at some on a particular car). As part of its submis-
points, by passenger and freight traffic, but sion to FTA or FRA, the railroad would de-
where the freight traffic does not go through scribe the procedure it would use to receive
the particular station (e.g., because freight and fulfill these requests.
traffic bypasses the station), level-entry Where a railroad operator wishes to pro-
boarding is required. There could also be sit- vide access to its rail cars through a means
uations on which multiple tracks pass other than level-entry boarding, it is essen-
through a station, and freight traffic uses tial that it provide an integrated, safe, time-
only a center track, not a track which is ad- ly, reliable, and effective means of access for
jacent to a platform. In such cases, the new people with disabilities. A railroad is not re-
or altered platform would have to provide quired to choose what might be regarded as
level-entry boarding. It is important to note a more desirable or convenient method over
that this language refers to ‘‘existing’’ a less desirable or convenient method, or to
freight rail traffic, as opposed to the possi- choose a more costly option over a less cost-
bility that freight traffic might use the ly option. What a railroad must do is to en-
track in question at some future time. Like- sure that whatever option it chooses works.
wise, if freight trains have not used a track However, to assist railroads in choosing the
passing through a station in a significant pe- most suitable option, the rule requires that
riod of time (e.g., the past 10 years), the De- a railroad not using level-entry boarding, if
partment does not view this as constituting it chooses an approach other than the use of
‘‘existing freight rail traffic.’’ car-borne lifts, must perform a comparison

Passenger rail operators must provide ac- of the costs (capital, operating, and life-
cess only to accessible, available cars that cycle costs) of car-borne lifts versus the
457
means preferred by the railroad operator, as to describe to FTA or FRA how it would en-
well as a comparison of the relative ability sure that the lifts remained in safe and reli-
of each of the two alternatives (i.e., car- able operating condition (such as by cycling
borne lifts and the railroad’s preferred ap- the lift daily or other regular maintenance)
proach) to provide service to people with dis- and how it would ensure that personnel to
abilities in an integrated, safe, reliable, and operate the lift were available in a timely
timely manner. The railroad must submit manner to assist passengers in boarding a
this comparison to FTA and FRA at the train. This demonstration must clearly state
same time as it submits its plan to FRA and/ how the railroad expects that their oper-
or FTA, as described below, although the ations will provide safe and dignified service
comparison is not part of the basis on which to the users of such lifts.
the agencies would determine whether the In existing stations where it is possible to
plan meets the performance standard. The provide access to every car without station
Department believes that, in creating this or rail car retrofits, rail providers that re-
plan, railroads should consult with inter- ceive DOT financial assistance should be
ested individuals and groups and should mindful of the requirement of 49 CFR
make the plan readily available to the pub- 27.7(b)(2), which requires that service be pro-
lic, including individuals with disabilities. vided ‘‘in the most integrated setting that is
To ensure that the railroad’s chosen option reasonably achievable.’’ For example, if a set
works, the railroad must provide to FRA or of rail cars has car-borne lifts that enable
FTA (or both), as applicable, a plan explain- the railroad to comply with section 37.42 at
ing how its preferred method will provide the new or altered station platforms, it is likely
required integrated, safe, reliable, timely that deployment of this lift at existing sta-
and effective means of access for people with tions will be reasonably achievable. Simi-
disabilities. The plan would have to explain larly, it is likely that, in a system using
how boarding equipment (e.g., bridge plates, mini-high platforms, making multiple stops
lifts, ramps, or other appropriate devices) at existing stations would be reasonable
and/or platforms will be deployed, main- achievable. The use of a station-based lift at
tained, and operated, as well as how per- an existing station to serve more than one
sonnel will be trained and deployed to ensure car of a train may well also be reasonably
that service to individuals with disabilities achievable (e.g., with movement of the lift or
was provided in an integrated, safe, timely, multiple stops, as needed). Such actions
effective, and reliable manner. would serve the objective of providing serv-
FTA and/or FRA will evaluate the pro- ice in an integrated setting. In addition, in
posed plan with respect to whether it will situations where a railroad and the Depart-
achieve the objectives of the performance ment have negotiated access to every acces-
standard and may approve, disapprove, or sible car in an existing system (e.g., with
modify it. It should be emphasized that the car-borne lifts and mini-high platforms as a
purpose of FTA/FRA review of this plan is to back-up), the Department expects the rail-
make sure that whatever approach a railroad roads to continue to provide access to every
chooses will in fact work; that is, it will accessible car for people with disabilities.
really result in an integrated, safe, reliable, Section 37.42(e) provides a safety require-
timely and effective means of access for peo- ment concerning the setback of structures
ple with disabilities. If a plan, in the view of and obstacles (e.g., mini-high platforms, ele-
FRA or FTA, fails to meet this test, then vators, escalators, and stairwells) from the
FTA or FRA can reject it or require the rail- platform edge. This provision is based on
road to modify it to meet the objectives of long-standing FRA recommendations and
this provision. the expertise of the Department’s staff. The
In considering railroads’ plans, the agen- Department believes that it is inadvisable,
cies will consider factors including, but not with the exception of boarding and alighting
limited to, how the proposal maximizes inte- a train, to ever have a wheelchair operate
gration of and accessibility to individuals over the two-foot wide tactile strips that are
with disabilities, any obstacles to the use of parallel to the edge of the platform. This
a method that could provide better service to leaves a four-foot distance for a person in a
individuals with disabilities, the safety and typical wheelchair to maneuver safely past
reliability of the approach and related tech- stair wells, elevator shafts, etc. It also is im-
nology proposed to be used, the suitability of portant because a wheelchair user exiting a
the means proposed to the station and line train at a door where there is not a six-foot
and/or system on which it would be used, and clearance would likely have difficulty
the adequacy of equipment and maintenance exiting and making the turn out of the rail
and staff training and deployment. car door. The requirement would also avoid
For example, some commenters have ex- channeling pedestrians through a relatively
pressed significant concerns about the use of narrow space where, in crowded platform
station-based lifts, noting instances in which conditions, there would be an increased
such lifts have not been maintained in a safe chance of someone falling off the edge of the
and reliable working order. A railroad pro- platform. Since the rule concerns only new
posing to use station-based lifts would have and altered platforms, the Department does
458
not believe the cost or difficulty of designing make changes to the maximum extent fea-
the platforms to eliminate this hazard will sible derives from clear legislative history.
be significant. The Senate Report states—
Section 37.42(f) provides the maximum gap The phrase ‘‘to the maximum extent fea-
allowable for a platform to be considered sible’’ has been included to allow for the oc-
‘‘level.’’ However, this maximum is not in- casional case in which the nature of an exist-
tended to be the norm for new or altered ing facility is such as to make it virtually
platforms. The Department expects transpor- impossible to renovate the building in a
tation providers to minimize platform gaps manner that results in its being entirely ac-
to the greatest extent possible by building cessible to and usable by individuals with
stations on tangent track and using gap-fill- disabilities. In all such cases, however, the
ing technologies, such as moveable platform alteration should provide the maximum
edges, threshold plates, platform end boards, amount of physical accessibility feasible.
and flexible rubber fingers on the ends of Thus, for example the term ‘‘to the max-
platforms. The Department encourages the imum extent feasible’’ should be construed
use of Gap Management Plans and consulta- as not requiring entities to make building al-
tion with FRA and/or FTA for guidance on terations that have little likelihood of being
gap safety issues. accomplished without removing or altering a
Even where level-entry boarding is pro- load-bearing structural member unless the
vided, it is likely that, in many instances, load-bearing structural member is otherwise
bridge plates would have to be used to enable being removed or altered as part of the alter-
passengers with disabilities to enter cars, be- ation. (S. Rept. 101–116, at 68).
cause of the horizontal gaps involved. Sec- Fifth, primary function means a major ac-
tion 38.95(c)(5), referred to in the regulatory tivity for which the facility is intended. Pri-
text, permits various ramp slopes for bridge mary function areas include waiting areas,
plates, depending on the vertical gap in ticket purchase and collection areas, train or
given situation. In order to maximize the op- bus platforms, baggage checking and return
portunity of passengers to board independ- areas, and employment areas (with some ex-
ently, the Department urges railroads to use ceptions stated in the rule, for areas used by
the least steep ramp slope feasible at a given service personnel that are very difficult to
platform. access).
Sixth, ‘‘path of travel’’ means a contin-
Section 37.43 Alteration of Transportation uous, unobstructed way of pedestrian pas-
Facilities by Public Entities sage by means of which the altered area may
This section sets out the accessibility re- be approached, entered, and exited, and
quirements that apply when a public entity which connects the altered area with an ex-
undertakes an alteration of an existing facil- terior approach and includes restrooms, tele-
ity. In general, the section requires that any phones, and drinking fountains serving the
alteration, to the maximum extent feasible, altered area. If changes to the path of travel
results in the altered area being accessible to are disproportionate, then only those
and usable by individuals with disabilities, changes which are not disproportionate are
including persons who use wheelchairs. The to be completed.
provisions follow closely those adopted by Seven, the final rule specifies that costs
the DOJ, in its regulations implementing exceeding 20 percent would be dispropor-
title III of the ADA. tionate. This is consistent with the DOJ. In
The section requires specific activities determining costs, the Department intends
whenever an alteration of an existing facil- costs to be based on changes to the passenger
ity is undertaken. service area that is scheduled for alteration.
First, if the alteration is made to a pri- Finally, the Department has defined the
mary function area, (or access to an area term ‘‘begin’’, in the context of begin an al-
containing a primary function), the entity teration that is subject to the alteration pro-
shall make the alteration in such a way as to vision to mean when a notice to proceed or
ensure that the path of travel to the altered work order is issued. Two terms are used (in-
area and the restrooms, telephones and stead of only notice to proceed in the con-
drinking fountains servicing the altered area text of new construction) because many al-
are readily accessible to and usable by indi- terations may be carried out by the entity
viduals with disabilities, including individ- itself, in which case the only triggering
uals who use wheelchairs. event would be a work order or similar au-
Second, alterations to drinking fountains, thorization to begin.
telephones, and restrooms do not have to be In looking at facility concepts like
completed if the cost and scope of making ‘‘disproportionality’’ and ‘‘to the maximum
them accessible is disproportionate. extent feasible,’’ the Department will con-
Third, the requirement goes into effect for sider any expenses related to accessibility
alterations begun after January 25, 1992. for passengers. It is not relevant to consider
Fourth, the term ‘‘maximum extent fea- non-passenger related improvements (e.g.,
sible’’ means that all changes that are pos- installing a new track bed) or to permit
sible must be made. The requirement to ‘‘gold-plating’’ (attributing to accessibility
459
costs the expense of non-related improve- This language is intended to emphasize
ments, such as charging to accessibility that as circumstances change, the parties in-
costs the price of a whole new door, when volved have the responsibility to adjust their
only adding a new handle to the old door was arrangements for cost sharing. For example,
needed for accessibility). suppose Railroad A has 30 percent of the pas-
senger boardings in year 1, but by year 10 has
Section 37.47 Key Stations in Light and Rapid 60 percent of the boardings. It would not be
Rail Systems fair for Railroad A to pay only 30 percent of
Section 37.49 Designation of Responsible Per- the costs of station modifications occurring
son(s) for Intercity and Commuter Rail Sta- in later years. Ultimately, the total cost
tions burden for modifying the station over (for
example) 20 years would be allocated on the
This section sets forth a mechanism for de- share of the total number or boardings at-
termining who bears the legal and financial tributable to each railroad over the whole 20
responsibility for accessibility modifications year period, in order to avoid such unfair-
to a commuter and/or intercity rail station. ness.
The final provision of the section is the most The third, and most complicated, situation
important. It authorizes all concerned par- is one in which no party owns 50 percent of
ties to come to their own agreement con- the station. For example, consider the fol-
cerning the allocation of responsibility. lowing hypothetical situation:
Such an agreement can allocate responsi-
bility in any way acceptable to the parties. Ownership Boardings
Party
The Department strongly encourages parties percentage percentage
to come to such an agreement.
In the absence of such an agreement, a Private freight RR ...................... 40 0
statutory/regulatory scheme allocates re- City ............................................ 30 0
Amtrak ....................................... 0 25
sponsibility. In the first, and simplest, situa-
Commuter A .............................. 30 50
tion posed by the statute, a single public en-
Commuter B .............................. 0 25
tity owns more than 50 percent of the sta-
tion. In this case, the public entity is the re-
sponsible person and nobody else is required The private freight railroad drops out of the
to bear any of the responsibility. calculation of who is responsible. All of the
In the second situation, a private entity responsibility would be allocated among four
owns more than 50 percent of the station. public entities: the city (a public entity who
The private entity need not bear any of the does not operate railroad service), Amtrak,
responsibility for making the station acces- and the two commuter railroads. Half the re-
sible. A public entity owner of the station, sponsibility would go to public entity owners
who does not operate passenger railroad of the station (whether or not they are rail-
service through the station, is not required roads who run passenger service through the
to bear any of the responsibility for making station). The other half of the responsibility
the station accessible. The total responsi- would go to railroads who run passenger
bility is divided between passenger railroads service through the station (whether or not
operating service through the station, on the they are station owners).
basis of respective passenger boardings. If On the ownership side of the equation, the
there is only one railroad operating service city and Commuter A each own half of that
through the station, it bears the total re- portion of the station that is not owned by
sponsibility. the private freight railroad. Therefore, the
The Department believes that reference to two parties divide up the ownership half of
passenger boardings is the most equitable the responsibility equally. Based on their
way of dividing responsibility among rail- ownership interest, each of these two parties
roads, since the number of people drawn to bears 25 percent of the responsibility for the
the station by each is likely to reflect ‘‘cost entire station. Note that, should ownership
causation’’ quite closely. The Department percentages or owners change over the pe-
notes, however, that, as passenger boarding riod during which the station is to be made
percentages change over time, the portion of accessible, these percentages may change. It
responsibility assigned to each party also is ownership percentage over this entire pe-
may change. Station modifications may in- riod that ultimately determines the percent-
volve long-term capital investment and plan- age of responsibility.
ning, while passenger boarding percentages On the passenger rail operations side of the
are more volatile. Some railroads may stop equation, 50 percent of passenger boardings
serving a station, while others may begin are attributable to Commuter A and 25 per-
service, during the period of time before cent each to Commuter B and Amtrak.
modifications to the station are complete. Therefore, half of this portion of the respon-
To help accommodate such situations, the sibility belongs to Commuter A, while a
rule refers to passenger boardings ‘‘over the quarter share each goes to the other rail-
entire period during which the station is roads. This means that, based on passenger
made accessible.’’ boardings, 25 percent of the responsibility
460
goes to Commuter A, 12.5 percent to Com- Given the wide discretion permitted to rail
muter B, and 12.5 percent to Amtrak. Again, operators in identifying key stations, there
it is the proportion of passenger boardings would be no objection to identifying as a key
over the entire length of the period during station a new (presumably accessible) sta-
which the station is made accessible that ul- tion now under construction. Doing so would
timately determines the percentage of re- involve consideration of the key station cri-
sponsibility. teria and would be subject to the planning/
In this hypothetical, Commuter A is republic participation process.
sponsible for a total of 50 percent of the re- If an extension to a rail system (e.g., a
sponsibility for the station. Commuter A is commuter system) is made, such that the
responsible for 25 percent of the responsi- system comes to include existing inacces-
bility because of its role as a station owner sible stations that have not previously been
and another 25 percent because of its oper- part of the system, the Department con-
ation of passenger rail service through the strues the ADA to require application of key
station. station accessibility in such a situation. The
The Department recognizes that there will same would be true for a new start com-
be situations in which application of this muter rail system that began operations
scheme will be difficult (e.g., involving prob- using existing stations. Key station plan-
lems with multiple owners of a station whose ning, designation of key stations, and with
ownership percentages may be difficult to being consistent with the ADA would be re-
ascertain). The Department again empha- quired. The Department would work with the
sizes that agreement among the parties is commuter authority involved on a case-by-
the best way of resolving these problems, but case basis to determine applicable time lim-
we are willing to work with the parties to its for accessibility, consistent with the time
ensure a solution consistent with this rule. frames of the ADA.
The entity must develop a compliance
Section 37.51 Key Stations in Commuter Rail plan, subject to the public participation and
Systems planning process set forth in paragraph (d) of
each of these sections. Note that this plan
These sections require that key stations in must be completed by July 26, 1992, not Jan-
light, rapid, and commuter rail systems be uary 26, 1992, as in the case of paratransit
made accessible as soon as practicable, but plans. The key station plans must be sub-
no later than July 26, 1993. Being made ac- mitted to FTA at that time. (The statute
cessible, for this purpose, means complying does not require FTA approval of the plans,
with the applicable provisions of appendix A however.).
to this part. ‘‘As soon as practicable’’ means A rail operator may request an extension
that, if modification can be made before July of the July 1993 completion deadline for ac-
26, 1993, they must be. A rail operator that cessibility modifications to one or more key
failed to make a station accessible by July stations. The extension for light and rapid
1993 would be in noncompliance with the rail stations can be up to July 2020, though
ADA and this rule, except in a case where an two thirds of the key stations (per the legis-
extension of time had been granted. lative history of the statute, selected in a
What is a key station? A key station is one way to maximize accessibility to the whole
designated as such by the commuter author- system) must be accessible by July 2010.
ity or light/rapid rail operator, through the Commuter rail stations can be extended up
planning process and public participation to July 2010.
process set forth in this section. The five cri- Requests for extension of time must be
teria listed in the regulation are intended to submitted by July 26, 1992. FTA will review
guide the selection process but, while the en- the requests on a station-by-station basis ac-
tity must take these criteria into account cording to the statutory criterion, which is
(and this consideration must be reflected in whether making the station accessible re-
the planning process and documents), they quires extraordinarily expensive alterations.
are not mandatory selection standards. That An extraordinarily expensive alteration is
is, it is not required that every station that raising the entire platform, installing an ele-
meets one of the criteria be designated as a vator, or making another alteration of simi-
key station. Since the criteria are not man- lar cost and magnitude. If another means of
datory selection standards, the under- making a station accessible (e.g., installa-
standing of their terms is also a matter ap- tion of a mini-high platform in a station
propriately left to the planning process. A where it is not necessary to install an eleva-
tight, legalistic definition is not necessary tor or to provide access to the platform for
in the context of factors intended for consid- wheelchair users), then an extension can be
eration. For instance, what constitutes a granted only if the rail operator shows that
major activity center or how close a station the cost and magnitude of the alteration is
needs to be to another station to not be des- similar to that of an elevator installation or
ignated as key depend largely on local fac- platform raising.

tors that it would not be reasonable to speci- The rule does not include a specific dead-
fy in this rule. line for FTA consideration of an extension
461
request. However, since we are aware that, in meet the requirements of appendix A to this
the absence of an extension request, accessi- part.
bility must be completed by July 1993, we This is an exception only for the two speci-
will endeavor to complete review of plans as fied agreements. There are no situations in
soon as possible, to give as much lead time which other cities can take advantage of this
as possible to local planning and implemen- provision. Nor are the provisions of the two
tation efforts. agreements normative for other cities. Other
Once an extension is granted, the exten- cities must do their own planning, with in-
sion applies to all accessibility modifications volvement from local citizens, and cannot
in the station. However, the rail operator rely on agreements unique to New York and
should not delay non-extraordinarily expen- Philadelphia to determine the appropriate
sive modifications to the station. The key number of percentage of key stations or
station plan and any extension request other matters.
should include a schedule for phasing in non-
Section 37.57 Required Cooperation
extraordinarily expensive modifications to
the station. For example, even if a key sta- This section implements § 242(e)(2)(C) of
tion is not going to be accessible to wheel- the ADA, which treats as discrimination a
chair users for 15 years, pending the installa- failure, by an owner or person in control of
tion of an elevator, the rail operator can im- an intercity rail station, to provide reason-
prove its accessibility to persons with visual able cooperation to the responsible persons’
impairments by installing tactile strips. efforts to comply with accessibility require-
An extension cannot be granted except for ments. For example, the imposition by the
a particular station which needs an extraor- owner of an unreasonable insurance bond
dinarily expensive modification. An exten- from the responsible person as a condition of
sion cannot be granted non-extraordinarily making accessibility modifications would
expensive changes to Station B because the violate this requirement. See H. Rept. 101–485
extraordinarily expensive changes to Station at 53.
A will absorb many resources. Non-extraor- The statute also provides that failure of
dinarily expensive changes, however costly the owner or person in control to cooperate
considered collectively for a system, are not, does not create a defense to a discrimination
under the statute, grounds for granting an suit against the responsible person, but the
extension to one or more stations or the responsible person would have a third party
whole system. Only particular stations action against the uncooperative owner or
where an extraordinarily expensive modifica- person in control. The rule does not restate
tion must be made qualify for extensions. this portion of the statute in the regulation,
The FTA Administrator can approve, mod- since it would be implemented by the courts
ify, or disapprove any request for an exten- if such an action is brought. Since coopera-
sion. For example, it is not a forgone conclu- tion is also a regulatory requirement, how-
sion that a situation for which an extension ever, the Department could entertain a sec-
is granted will have the maximum possible tion 504 complaint against a recipient of Fed-
extension granted. If it appears that the rail eral funds who failed to cooperate.
operator can make some stations accessible The House Energy and Commerce Com-
sooner, FTA can grant an extension for a mittee provided as an example of an action
shorter period (e.g., 2005 for a particular sta- under this provision a situation in which a
tion rather than 2010). failure to cooperate leads to a construction
delay, which in turn leads to a lawsuit by an
Section 37.53 Exception for New York and individual with disabilities against the re-
Philadelphia sponsible person for missing an accessibility
deadline. The responsible person could not
Consistent with the legislative history of use the lack of cooperation as a defense in
the ADA, this section formally recognizes the lawsuit, but the uncooperative party
the selection of key stations in two identi- could be made to indemnify the responsible
fied litigation settlement agreements in New person for damages awarded the plaintiff.
York and Philadelphia as in compliance with Also, a responsible person could obtain an in-
the ADA. Consequently, the entities involved junction to force the recalcitrant owner or
can limit their key station planning process controller of the station to permit accessi-
to issues concerning the timing of key sta- bility work to proceed. (Id.)
tion accessibility. The section references This provision does not appear to be in-
also § 37.9, which provides that key station tended to permit a responsible person to seek
accessibility alterations which have already contribution for a portion of the cost of ac-
been made, or which are begun before Janu- cessibility work from a party involved with
ary 26, 1992, and which conform to specified the station whom the statute and § 37.49 do
prior standards, do not have to be re-modi- not identify as a responsible person. It sim-
fied. On the other hand, alterations begun ply provides a remedy for a situation in
after January 25, 1992 (including forthcoming which someone impedes the responsible per-
key station modifications under the New son’s efforts to comply with accessibility ob-
York and Philadelphia agreements), must ligations.
462
Section 37.59 Differences in Accessibility The Department did not prescribe one list
Completion Date Requirements of things that would be appropriate for all
stations. For example, we believe that tac-
Portions of the same station may have dif- tile strips are a valuable addition to plat-
ferent accessibility completion date require- forms which have drop-offs. We also believe
ments, both as the result of different statu- that most larger systems, to the extent they
tory time frames for different kinds of sta- publish schedules, should make those sched-
tions and individual decisions made on re- ules readily available in alternative formats.
quests for extension. The principle at work We encourage entities to find this another
in responding to such situations is that if area which benefits from its commitment to
part of a station may be made accessible far-reaching public participation efforts.
after another part, the ‘‘late’’ part of the
work should not get in the way of people’s SUBPART D—ACQUISITION OF ACCESSIBLE
use of modifications resulting from the VEHICLES BY PUBLIC ENTITIES
‘‘early’’ part.
Section 37.71 Purchase or Lease of New Non-
For example, the commuter part of a sta-
Rail Vehicles by Public Entities Operating
tion may have to be made accessible by July
Fixed Route Systems
1993 (e.g., there is no need to install an eleva-
tor, and platform accessibility can be This section generally sets out the basic
achieved by use of a relatively inexpensive acquisition requirements for a public entity
mini-high platform). The Amtrak portion of purchasing a new vehicle. The section re-
the same station, by statute, is required to quires any public entity that purchases or
be accessible as soon as practicable, but no leases a new vehicle to acquire an accessible
later than July 2010. If there is a common en- vehicle.
trance to the station, that commuter rail In addition, the waiver request must in-
passengers and Amtrak passengers both use, clude copies of advertisements in trade pub-
or a common ticket counter, it would have lications and inquiries to trade associations
to be accessible by July 1993. If there were a seeking lifts for the buses. The public entity
waiting room used by Amtrak passengers but also must include a full justification for the
not commuter passengers (who typically assertion that a delay in the bus procure-
stand and wait on the platform at this sta- ment sufficient to obtain a lift-equipped bus
tion), it would not have to be accessible by would significantly impair transportation
July 1993, but if the path from the common services in the community. There is no
entrance to the commuter platform went length of time that would be a per se delay
through the waiting room, the path would constituting a ‘‘significant impairment’’. It
have to be an accessible path by July 1993. will be more difficult to obtain a waiver if a
relatively short rather than relatively
Section 37.61 Public Transportation Programs lengthy delay is involved. A showing of time-
and Activities in Existing Facilities tables, absent a showing of significant im-
pairment of actual transit services, would
This section implements section 228(a) of not form a basis for granting a waiver.
the ADA and establishes the general require- Any waiver granted by the Department
ment for entities to operate their transpor- under this provision will be a conditional
tation facilities in a manner that, when waiver. The conditions are intended to en-
viewed in its entirety, is accessible to and sure that the waiver provision does not cre-
usable by individuals with disabilities. The ate a loophole in the accessible vehicle ac-
section clearly excludes from this require- quisition requirement that Congress in-
ment access by persons in wheelchairs, un- tended to impose. The ADA requires a waiver
less these changes would be necessitated by to be limited in duration and the rule re-
the alterations or key station provisions. quires a termination date to be included. The
This provision is intended to cover activi- date will be established on the basis of the
ties and programs of an entity that do not information the Department receives con-
rise to the level of alteration. Even if an en- cerning the availability of lifts in the waiver
tity is not making alterations to a facility, request and elsewhere. In addition, so that a
it has a responsibility to conduct its pro- waiver does not become open-ended, it will
gram in an accessible manner. Examples of apply only to a particular procurement. If a
possible activities include user friendly transit agency wants a waiver for a subse-
farecards, schedules, of edge detection on quent delivery of buses in the procurement,
rail platforms, adequate lighting, tele- or another procurement entirely, it will have
communication display devices (TDDs) or to make a separate waiver request.
text telephones, and other accommodations For example, if a particular order of buses
for use by persons with speech and hearing is delivered over a period of time, each deliv-
impairments, signage for people with visual ery would be the potential subject of a waiv-
impairments, continuous pathways for per- er request. First, the entity would request a
sons with visual and ambulatory impair- waiver for the first shipment of buses. If all
ments, and public address systems and of the conditions are met, the waiver would
clocks. be granted, with a date specified to coincide
463
with the due date of the lifts. When the lifts accessible buses in preference to more inac-
become available those buses would have to cessible buses.
be retrofitted with the lifts. A subsequent The public participation requirements in-
delivery of buses—on the same order—would volved in the development of the paratransit
have to receive its own waiver, subject to the plans for all fixed route operators requires
same conditions and specifications of the an ongoing relationship, including extensive
first waiver. outreach, to the community likely to be
The purpose of the waiver, as the Depart- using its accessible service. We believe that
ment construes it, is to address a situation it will be difficult to comply with the public
in which (because of a sudden increase in the participation requirements and not involve
number of lift-equipped buses requested) lift the affected community in the decisions con-
manufacturers are unable to produce enough cerning the purchase or lease of used acces-
lifts to meet the demand in a timely fashion. sible vehicles.
There is an exception to these require-
Section 37.73 Purchase or Lease of Used Non- ments for donated vehicles. Not all ‘‘zero
Rail Vehicles by Public Entities Operating a dollar’’ transfers are donations, however.
Fixed Route System The legislative history to this provision pro-
vides insight.
The basic rule is that an acquisition of a It is not the Committee’s intent to make
used vehicle would have to be for an acces- the vehicle accessibility provisions of this
sible vehicle. title applicable to vehicles donated to a pub-
There is an exception, however, for situa- lic entity. The Committee understands that
tions in which the transit provider makes a it is not usual to donate vehicles to a public
good faith effort to obtain accessible used entity. However, there could be instances
vehicles but does not succeed in finding where someone could conceivably donate a
them. The ADA requires transit agencies to bus to a public transit operator in a will. In
purchase accessible used vehicles, providing such a case, the transit operators should not
a ‘‘demonstrated good faith efforts’’ excep- be prevented from accepting a gift.
tion to the requirement. The reports of the The Committee does not intend that this
Senate Committee on Labor and Human Re- limited exemption for donated vehicles be
sources and the House Committee on Edu- used to circumvent the intent of the ADA.
cation and Labor offered the following guid- For example, a local transit authority could
ance on what ‘‘good faith efforts’’ involve: not arrange to be the recipient of donated in-
The phrase ‘‘demonstrated good faith ef- accessible buses. This would be a violation of
forts’’ is intended to require a nationwide the ADA. S. Rpt. 101–116, at 46; H. Rpt. 101–
search and not a search limited to a par- 486, at 87.
ticular region. For instance, it would not be Entities interested in accepting donated
enough for a transit operator to contact only vehicles must submit a request to FTA to
the manufacturer where the transit author- verify that the transaction is a donation.
ity usually does business to see if there are There is one situation, in which a vehicle
accessible used buses. It involves the transit has prior use is not treated as a used vehicle.
authority advertising in a trade magazine, If a vehicle has been remanufactured, and it
i.e., Passenger Transport, or contacting the is within the period of the extension of its
transit trade association, American Public useful life, it is not viewed as a used vehicle
Transit Association (APTA), to determine (see H. Rept. 101–485, Pt 1 at 27). During this
whether accessible used vehicles are avail- period, such a vehicle may be acquired by an-
able. It is the Committee’s expectation that other entity without going through the good
as the number of buses with lifts increases, faith efforts process. This is because, at the
the burden on the transit authority to dem- time of its remanufacture, the bus would
onstrate its inability to purchase accessible have been made as accessible if feasible.
vehicles despite good faith efforts will be- When the vehicle has completed its extended
come more and more difficult to satisfy. S. useful life (e.g., the beginning of year six
Rept. 101–116 at 49; H. Rept. 101–485 at 90. when its useful life has extended five years),
Consistent with this guidance, this section it becomes subject to used bus requirements.
requires that good faith efforts include speci-
fying accessible vehicles in bid solicitations. Section 37.75 Remanufacture of Non-Rail Vehi-
The section also requires that the entity re- cles and Purchase or Lease of Remanufac-
tain for two years documentation of that ef- tured Non-rail Vehicles by Public Entities Op-
fort, and that the information be available erating Fixed Route Systems
to FTA and the public. This section tracks the statute closely,
It does not meet the good faith efforts re- and contains the following provisions. First,
quirement to purchase inaccessible, rather it requires any public entity operating a
than accessible, used buses, just because the fixed route system to purchase an accessible
former are less expensive, particularly if the vehicle if the acquisition occurs after August
difference is a difference attributable to the 25, 1990, if the vehicle is remanufactured

presence of a lift. There may be situations in after August 25, 1990, or the entity contracts
which good faith efforts involve buying fewer or undertakes the remanufacture of a vehicle
464
after August 25, 1990. The ADA legislative lyzed, equal opportunities for each indi-
history makes it clear that remanufacture is vidual with a disability to use the transpor-
to include changes to the structure of the ve- tation system must exist. (H. Rept. 101–184,
hicle which extend the useful life of the vehi- Pt. 2, at 95; S. Rept. 101–116 at 54). For exam-
cle for five years. It clearly is not intended ple, both reports said that ‘‘the time delay
to capture things such as engine overhauls between a phone call to access the demand
and the like. responsive system and pick up the individual
The term remanufacture, as used in the
is not greater because the individual needs a
ADA context, is different from the use of the
lift or ramp or other accommodation to ac-
term in previously issued FTA guidance. The
term has a specific meaning under the ADA: cess the vehicle.’’ (Id.)
there must be structural work done to the Consistent with this, the Department has
vehicle and the work must extend the vehi- specified certain service criteria that are to
cle’s useful life by five years. be used when determining if the service is
The ADA imposes no requirements on what equivalent. As in previous rulemakings on
FTA traditionally considers bus rehabilita- this provision, the standards (which include
tion. Such work involves rebuilding a bus to service area, response time, fares, hours and
original specifications and focuses on me- days of service, trip purpose restrictions, in-
chanical systems and interiors. Often this formation and reservations capability, and
work includes replacing components. It is other capacity constraints) are not absolute
less extensive than remanufacture. standards. They do not say, for example,
The statute, and the rule, includes an ex- that a person with a disability must be
ception for the remanufacture of historical picked up in a specified number of hours. The
vehicles. This exception applies to the re-
requirement is that there must be equivalent
manufacture of or purchase of a remanufac-
service for all passengers, whether or not
tured vehicle that (1) is of historic character;
(2) operates solely on a segment of a fixed they have a disability. If the system provides
route system which is on the National Reg- service to persons without disabilities within
ister of Historic Places; and (3) making the four hours of a call for service, then pas-
vehicle accessible would significantly alter sengers with disabilities must be afforded
the historic character of the vehicle. The ex- the same service.
ception only extends to the remanufacture The Department has been asked specifi-
that would alter the historic character of the cally where an entity should send its
vehicle. All modifications that can be made ‘‘equivalent level of service’’ certifications.
without altering the historic character (such We provide the following: Equivalent level of
as slip resistant flooring) must be done. service certifications should be submitted to
the state program office if you are a public
Section 37.77 Purchase or Lease of New Non-
Rail Vehicles by Public Entities Operating a entity receiving FTA funds through the
Demand Responsive System for the General state. All other entities should submit their
Public equivalent level of service certifications to
the FTA regional office (listed in appendix B
Section 224 of the ADA requires that a pub- of this part). Certifications must be sub-
lic entity operating a demand responsive sys- mitted before the acquisition of the vehicles.
tem purchase or lease accessible new vehi-
Paragraph (e) of this section authorizes a
cles, for which a solicitation is made after
August 25, 1990, unless the system, when waiver for the unavailability of lifts. Since
viewed in its entirety, provides a level of demand responsive systems need not pur-
service to individuals with disabilities, in- chase accessible vehicles if they can certify
cluding individuals who use wheelchairs, equivalent service, the Department has been
equivalent to the level of service provided to asked what this provision is doing in this
individuals without disabilities. This section section.
is the same as the October 4, 1990 final rule Paragraph (e) applies in the case in which
which promulgated the immediately effec- an entity operates a demand responsive sys-
tive acquisition requirements of the ADA. tem, which is not equivalent, and the entity
The Department has been asked to clarify cannot find accessible vehicles to acquire. In
what ‘‘accessible when viewed in its en- this case, the waiver provisions applicable to
tirety’’ means in the context of a demand re- a fixed route entity purchasing or leasing in-
sponsive system being allowed to purchase accessible new vehicles applies to the de-
an inaccessible vehicle. First, it is important
mand responsive operator as well.
to note that this exception applies only to
demand responsive systems (and not fixed Section 37.79 Purchase or Lease of New Rail
route systems). The term ‘‘equivalent serv- Vehicles by Public Entities Operating Rapid
ice’’ was discussed during the passage of the
or Light Rail Systems
ADA. Material from the legislative history
indicates that ‘‘when viewed in its entirety/ This section echoes the requirement of
equivalent service’’ means that ‘‘when all as- § 37.71—all new rail cars must be accessible.
pects of a transportation system are ana-
465
Section 37.81 Purchase or Lease of Used Rail Section 37.87 Purchase or Lease of Used
Vehicles by Public Entities Operating Rapid Intercity and Commuter Rail Cars
or Light Rail Systems
The section also parallels closely the re-
This section lays out the requirements for quirements in the ADA for the purchase or
a public entity acquiring a used rail vehicle. lease of accessible used rail vehicles. We ac-
The requirements and standards are the knowledge that, in some situations, the stat-
same as those specified for non-rail vehicles utory requirement for to make good faith ef-
in § 37.73. While we recognize it may create forts to acquire accessible used vehicles may
difficulties for entities in some situations, create difficulties for rail operators attempt-
the statute does not include any extension or ing to lease rail cars quickly for a short time
short-term leases. The Department will con- (e.g., as fill-ins for cars which need repairs).
sider, in a case-by-case basis, how the good In some cases, it may be possible to mitigate
faith efforts requirement would apply in the these difficulties through means such as
case of an agreement between rail carriers to making good faith efforts with respect to an
permit quick-response, short-term leases of overall agreement between two rail opera-
cars over a period of time. tors to make cars available to one another
when needed, rather than each time a car is
Section 37.83 Remanufacture of Rail Vehicles provided under such an agreement.
and Purchase or Lease of Remanufactured
Rail Vehicles by Public Entities Operating Section 37.89 Remanufacture of Intercity and
Rapid or Light Rail System Commuter Rail Cars
This section parallels the remanufacturing This section requires generally that re-
section for buses, including the exception for manufactured cars be made accessible, to the
historical vehicles. With respect to an entity maximum extent feasible. Feasible is defined
having a class of historic vehicles that may in paragraph (c) of the section to be ‘‘unless
meet the standards for the historic vehicle an engineering analysis demonstrates that
exception (e.g., San Francisco cable cars), remanufacturing the car to be accessible
the Department would not object to a re- would have a significant adverse effect on
quest for application of the exception on a the structural integrity of the car.’’ In-
system-wide, as approved to car-by-car, creased cost is not a reason for viewing other
basis. sections of this subpart concerning remanu-
factured vehicles.
Section 37.85 Purchase or Lease of New In addition, this section differs from the
Intercity and Commuter Rail Cars counterpart sections for non-rail vehicles
This section incorporates the statutory re- and light and rapid rail vehicles in two ways.
quirement that new intercity and commuter First, the extension of useful life needed to
rail cars be accessible. The specific accessi- trigger the section is ten rather than five
bility provisions of the statute (for example, years. Second, there is no historic vehicle ex-
there are slightly different requirements for ception. Both of these differences are statu-
intercity rail cars versus commuter rail tory.
cars) are specified in part 38 of this regula- Remanufacture of vehicles implies work
tion. These standards are adopted from the that extends their expected useful life of the
voluntary guidelines issues by the Access vehicle. A mid-life overhaul, not extending
Board. The section basically parallels the ac- the total useful life of the vehicle, would not
quisition requirements for buses and other be viewed as a remanufacture of the vehicle.
vehicles. It should be noted that the defini-
Section 37.93 One Car Per Train Rule
tion of commuter rail operator clearly al-
lows for additional operators to qualify as This section implements the statutory di-
commuter, since the definition describes the rective that all rail operators (light, rapid,
functional characteristics of an operator, as commuter and intercity) have at least one
well as listing existing commuter rail opera- car per train accessible to persons with dis-
tors. abilities, including individuals who use
We would point out that the ADA applies wheelchairs by July 26, 1995. (See ADA sec-
this requirement to all new vehicles. This in- tions 242(a)(1), 242(b)(1), 228(b)(1).) Section
cludes not only vehicles and systems that 37.93 contains this general requirement. In
currently are being operated in the U.S., but some cases, entities will meet the one-car-
new, experimental, or imported vehicles and per train rule through the purchase of new
systems. The ADA does not stand in the way cars. In this case, since all new rail vehicles
of new technology, but it does require that have to be accessible, compliance with this
new technology, and the benefits it brings, provision is straightforward.
be accessible to all persons, including those However, certain entities may not be pur-
with disabilities. This point applies to all ve- chasing any new vehicles by July 26, 1995, or
hicle acquisition provisions of this regula- may not be purchasing enough vehicles to
tion, whether for rail or non-rail, private or ensure that one car per train is accessible. In
public, fixed route or demand responsive ve- these cases, these entities will have to ret-
hicles and systems. rofit existing cars to meet this requirement.
466
What a retrofitted car must look like to PRIVATE ENTITIES ‘‘PRIMARILY ENGAGED’’
meet the requirement has been decided by
the Access Board. These standards are con- Vehicle type/ca-
System type Requirement
pacity
tained in part 38 of this rule.
We would point that, consistent with the Fixed route ........... All new vehicles Acquire accessible
Access Board standards, a rail system using except auto, van vehicle.
mini-high platforms or wayside lifts is not with less than 8
capacity, or over
required, in most circumstances, to ‘‘double- the road bus.
stop’’ in order to give passengers a chance to Demand respon- Same as above .... Acquire accessible
board the second or subsequent car in a train sive. vehicle, or
at the mini-high platform or way-side lift. equivalency.
The only exception to this would be a situa- Either fixed route New vans with a Same as above.
or demand re- capacity of less
tion in which all the wheelchair positions
sponsive. than 8.
spaces in the first car were occupied. In this
case, the train would have to double-stop to Equivalency, for purposes of these require-
allow a wheelchair user to board, rather than ments, is spelled out in § 37.105. It is impor-
passing the person by when there was space tant to note that some portions of this sec-
available in other than the first car, except tion (referring to response time, reservations
where doing is necessary to comply with the capacity, and restrictions on trip purpose)
provisions of section 37.42 of this part. apply only to demand responsive systems.
Another provision (schedules/headways) ap-
Section 37.95 Ferries and Other Passenger plies only to fixed route systems. This is be-
Vessels cause these points of comparison apply only
Although at this time there are no specific to one or the other type system. The remain-
ing provisions apply to both kinds of sys-
requirements for vessels, ferries and other
tems.
passenger vessels operated by public entities
In applying the provisions this section, it
are subject to the requirements of § 37.5 of is important to note that they are only
this part and applicable requirements of 28 points of comparison, not substantive cri-
CFR part 35, the DOJ rule under title II of teria. For example, unlike the response time
the ADA. criterion of § 37.131, this section does not re-
quire that a system provide any particular
SUBPART E—ACQUISITION OF ACCESSIBLE response time. All it says is that, in order for
VEHICLES BY PRIVATE ENTITIES there to be equivalency, if the demand re-
sponsive system gets a van to a non-disabled
Section 37.101 Purchase or Lease of Non-Rail
person in 2 hours, or 8 hours, or a week and
Vehicles by Private Entities Not Primarily En- a half after a call for service, the system
gaged in the Business of Transporting Peo- must get an accessible van to a person with
ple a disability in 2 hours, or 8 hours, or a week
and a half.
Section 37.103 Purchase or Lease of New Non- The vehicle acquisition and equivalency
Rail Vehicles by Private Entities Primarily provisions work together in the following
Engaged in the Business of Transporting Peo- way. A private entity is about to acquire a
ple vehicle for a transportation service in one of
the categories to which equivalency is rel-
Section 37.105 Equivalent Service Standard evant. The entity looks at its present service
The first two sections spell out the distinc- (considered without regard to the vehicle it
tions among the different types of service plans to acquire). Does the present service
elaborated in the ADA and requirements meet the equivalency standard? (In answer-
that apply to them. For clarity, we provide ing this question, the point of reference is
the following chart. the next potential customer who needs an
accessible vehicle. The fact that such per-
sons have not called in the past is irrele-
PRIVATE ENTITIES ‘‘NOT PRIMARILY ENGAGED’’ vant). If not, the entity is required to ac-
System type Vehicle capacity Requirement
quire an accessible vehicle. If so, the entity
may acquire an accessible or an inaccessible
Fixed Route .......... Over 16 ................ Acquire accessible vehicle. This process must be followed every
vehicle. time the entity purchases or leases a vehicle.
Fixed Route .......... 16 or less ............. Acquire accessible Given changes in the mixes of both cus-
vehicle, or tomers and vehicles, the answer to the ques-
equivalency. tion about equivalency will probably not be
Demand Respon- Over 16 ................ Acquire accessible the same for an entity every time it is asked.
sive. vehicle, or One difference between the requirements
equivalency.
for ‘‘private, not primarily’’ and ‘‘private,

Demand Respon- 16 or less ............. Equivalency—see
primarily’’ entities is that the requirements
sive. § 37.171.
apply to all vehicles purchased or leased for
467
the former, but only to new vehicles for the when rail and bus systems share all or part
latter. This means that entities in the latter of the same service area. Commuter bus,
category are not required to acquire acces- commuter rail and intercity rail systems do
sible vehicles when they purchase or lease not have to provide paratransit, however.
used vehicles. Another oddity in the statute The remaining provisions of subpart F set
which entities should note is that the re- forth the details of the eligibility require-
quirement for ‘‘private, primarily’’ entities ments for paratransit, the service criteria
to acquire accessible vans with less than that paratransit systems must meet, the
eight passenger capacity (or provide equiva- planning process involved, and the proce-
lent service) does not become effective until dures for applying for waivers based on
after February 25, 1992 (This also date also undue financial burden.
applies no private entities ‘‘primarily en- Paratransit may be provided by a variety
gaged’’ which purchase passenger rail cars). of modes. Publicly operated dial-a-ride vans,
All other vehicle acquisition requirements service contracted out to a private para-
became effective after August 25, 1990. transit provider, user-side subsidy programs,
The Department views the line between or any combination of these and other ap-
‘‘private, primarily’’ and ‘‘private, not pri- proaches is acceptable. Entities who feel it
marily’’ entities as being drawn with respect necessary to apply for an undue financial
to the bus, van, or other service which the burden waiver should be aware that one of
entity is providing. For example, there is an the factors FTA will examine in evaluating
obvious sense in which an airline or car rent- waiver requests is efficiencies the provider
al company is primarily engaged in the busi- could realize in its paratransit service.
ness of transporting people. If the airline or Therefore, it is important for entities in this
car rental agency runs a shuttle bus from the situation to use the most economical and ef-
airport terminal to a downtown location or a ficient methods of providing paratransit
rental car lot, however, the Department they can devise.
views that shuttle service as covered by the It is also important for them to establish
‘‘private, not primarily’’ requirements of the and consistently implement strong controls
rule (see discussion of the Applicability sec- against fraud, waste and abuse in the para-
tions above). This is because the airline or transit system. Fraud, waste and abuse can
car rental agency is not primarily engaged in drain significant resources from a system
the business of providing transportation by and control of these problems is an impor-
bus or van. The relationship of the bus or tant ‘‘efficiency for any paratransit system.
van service to an airline’s main business is It will be difficult for the Department to
analogous to that of a shuttle to a hotel. For grant an undue financial burden waiver to
this purpose, it is of only incidental interest entities which do not have a good means of
that the main business of the airline is fly- determining if fraud, waste and abuse are
ing people around the country instead of put- problems and adequate methods of com-
ting them up for the night. bating these problems, where they are found
to exist.
Section 37.109 Ferries and Other Passenger
Vessels Section 37.123 ADA Paratransit Eligibility—
Standards
Although at this time there are no specific
requirements for vessels, ferries and other General Provisions
passenger vessels operated by private enti-
ties are subject to the requirements of § 37.5 This section sets forth the minimum re-
of this part and applicable requirements of 28 quirements for eligibility for complementary
CFR part 36, the DOJ rule under title III of paratransit service. All fixed route operators
the ADA. providing complementary paratransit must
make service available at least to individ-
SUBPART F—PARATRANSIT AS A COMPLEMENT uals meeting these standards. The ADA does
TO FIXED ROUTE SERVICE not prohibit providing paratransit service to
anyone. Entities may provide service to ad-
Section 37.121 Requirement for Comparable ditional persons as well. Since only service
Complementary Paratransit Service to ADA eligible persons is required by the
This section sets forth the basic require- rule, however, only the costs of this service
ment that all public entities who operate a can be counted in the context of a request
fixed route system have to provide para- for an undue financial burden waiver.
transit service that is both comparable and When the rule says that ADA paratransit
complementary to the fixed route service. By eligibility shall be strictly limited to per-
‘‘complementary,’’ we mean service that acts sons in the eligible categories, then, it is not
as a ‘‘safety net’’ for individuals with dis- saying that entities are in any way pre-
abilities who cannot use the fixed route sys- cluded from serving other people. It is saying
tem. By ‘‘comparable,’’ we mean service that that the persons who must be provided serv-
meets the service criteria of this subpart. ice, and counting the costs of providing them
This requirement applies to light and rapid service, in context of an undue burden waiv-
rail systems as well as to bus systems, even er, are limited to the regulatory categories.
468
TEMPORARY DISABILITIES or her eligibility documentation. Likewise,
someone with a variable condition (e.g., mul-
Eligibility may be based on a temporary as
well as a permanent disability. The indi- tiple sclerosis, HIV disease, need for kidney
vidual must meet one of the three eligibility dialysis) could have their eligibility based on
criteria in any case, but can do so for a lim- the underlying condition, with paratransit
ited period of time. For example, if an indi- need for a particular trip dependent on self-
vidual breaks both legs and is in two casts assessment or a set of medical standards
for several weeks, becomes a wheelchair user (e.g., trip within a certain amount of time
for the duration, and the bus route that after a dialysis session). On the other hand,
would normally take him to work is not ac- persons in the second eligibility category
cessible, the individual could be eligible (people who can use accessible fixed route
under the second eligibility category. In service where it exists) would be given serv-
granting eligibility to such a person, the en- ice on the basis of the particular route they
tity should establish an expiration date for would use for a given trip.
eligibility consistent with the expected end Because entities are not precluded from
of the period disability. providing service beyond that required by
the rule, an entity that believes it is too dif-
TRIP-BY-TRIP ELIGIBILITY ficult to administer a program of trip-by-trip
A person may be ADA paratransit eligible eligibility is not required to do so. Nothing
for some trips but not others. Eligibility prevents an entity from providing all re-
does not inhere in the individual or his or quested trips to a person whom the ADA re-
her disability, as such, but in meeting the quires to receive service for only some trips.
functional criteria of inability to use the In this case, if the entity intends to request
fixed route system established by the ADA. an undue financial burden waiver, the entity,
This inability is likely to change with dif- as provided in the undue burden provisions of
fering circumstances. this rule, must estimate, by a statistically
For example, someone whose impairment- valid technique, the percentage of its para-
related condition is a severe sensitivity to transit trips that are mandated by the ADA.
temperatures below 20 degrees is not pre- Only that percentage of its total costs will
vented from using fixed route transit when be counted in considering the undue burden
the temperature is 75 degrees. Someone waiver request.
whose impairment-related condition is an in-
ability to maneuver a wheelchair through CATEGORY 1 ELIGIBILITY
snow is not prevented from using fixed route
The first eligibility category includes,
transit when there is no snow on the ground.
among others, persons with mental or visual
Someone with a cognitive disability may
impairments who, as a result, cannot ‘‘navi-
have learned to take the same bus route to
gate the system.’’ This eligibility category
a supported employment job every day. This
includes people who cannot board, ride, or
individual is able to navigate the system for
work purposes and therefore would not be el- disembark from an accessible vehicle ‘‘with-
igible for paratransit for work trips. But the out the assistance of another individual.’’
individual may be unable to get to other des- This means that, if an individual needs an
tinations on the bus system without getting attendant to board, ride, or disembark from
lost, and would be eligible for paratransit for an accessible fixed route vehicles (including
non-work trips. Someone who normally ‘‘navigating the system’’), the individual is
drives his own car to a rail system park and eligible for paratransit. One implication of
ride lot may have a specific impairment re- this language is that an individual does not
lated condition preventing him from getting lose paratransit eligibility based on ‘‘inabil-
to the station when his car is in the shop. A ity to navigate the system’’ because the indi-
person who can use accessible fixed route vidual chooses to travel with a friend on the
service can go to one destination on an ac- paratransit system (even if the friend could
cessible route; another destination would re- help the person navigate the fixed route sys-
quire the use of an inaccessible route. The tem). Eligibility in this category is based on
individual would be eligible for the latter ability to board, ride, and disembark inde-
but not the former. pendently.
In many cases, though the person is eligi- Mobility training (e.g., of persons with
ble for some trips but not others, eligibility mental or visual impairments) may help to
determinations would not have to be made improve the ability of persons to navigate
literally on a trip-by-trip basis. It may often the system or to get to a bus stop. Someone
be possible to establish the conditions on eli- who is successfully mobility trained to use
gibility as part of the initial eligibility de- the fixed route system for all or some trips
termination process. Someone with a tem- need not be provided paratransit service for
perature sensitivity might be granted sea- those trips. The Department encourages en-
sonal eligibility. Somebody who is able to tities to sponsor such training as a means of
navigate the system for work but not non- assisting individuals to use fixed route rath-
work trips could have this fact noted in his er than paratransit.
469
CATEGORY 2 ELIGIBILITY If on otherwise accessible route 1, an indi-
vidual wants to travel from Point A to Point
The second eligibility criterion is the
E, and the lift cannot be deployed at E, the
broadest, with respect to persons with mobil-
individual is eligible for paratransit for the
ity impairments, but its impact should be re-
trip. (On-call bus would not work as a mode
duced over time as transit systems become
of providing this trip, since a bus lift will not
more accessible. This category applies to
deploy at the stop.) This is true even though
persons who could use accessible fixed route
service from Point A to all other points on
transportation, but accessible transportation the line is fully accessible. In this cir-
is not being used at the time, and on the cumstance, the entity should probably think
route, the persons would travel. This concept seriously about working with the local gov-
is route based, not system based. ernment involved to have the stop moved or
Speaking first of bus systems, if a person is made accessible.
traveling from Point A to Point B on route When we say that a lift cannot be de-
1, and route 1 is accessible, the person is not ployed, we mean literally that the mecha-
eligible for paratransit for the trip. This is nism will not work at the location to permit
true even though other portions of the sys- a wheelchair user or other person with a dis-
tem are still inaccessible. If the person is ability to disembark or that the lift will be
traveling from Point A to Point C on route damaged if it is used there. It is not con-
2, which is not accessible, the person is eligi- sistent with the rule for a transit provider to
ble for that trip. If the person is traveling declare a stop off-limits to someone who uses
from Point A to Point B on accessible route the lift while allowing other passengers to
1, with a transfer at B to go on inaccessible use the stop. However, if temporary condi-
route 3 to Point D, then the person is eligible tions not under the operator’s control (e.g.,
for the second leg of the trip. (The entity construction, an accident, a landslide) make
could choose to provide a paratransit trip it so hazardous for anyone to disembark that
from A to D or a paratransit or on-call bus the stop is temporarily out of service for all
trip from B to D.) passengers may the operator refuse to allow
For purposes of this standard, we view a a passenger to disembark using the lift.
route as accessible when all buses scheduled
on the route are accessible. Otherwise, it is CATEGORY 3 ELIGIBILITY
unlikely that an accessible vehicle could be The third eligibility criterion concerns in-
provided ‘‘within a reasonable period of [a] dividuals who have a specific impairment-re-
time’’ when the individual wants to travel, lated condition which prevents them from
as the provision requires. We recognize that getting to or from a stop or station. As noted
some systems’ operations may not be orga- in the legislative history of the ADA, this is
nized in a way that permits determining intended to be a ‘‘very narrow exception’’ to
whether a given route is accessible, even the general rule that difficulty in traveling
though a route-by-route determination ap- to or from boarding or disembarking loca-
pears to be contemplated by the statute. In tions is not a basis for eligibility.
such cases, it may be that category 2 eligi- What is a specific impairment-related con-
bility would persist until the entire system dition? The legislative history mentions four
was eligible. examples: Chronic fatigue, blindness, a lack
With respect to a rail system, an indi- of cognitive ability to remember and follow
vidual is eligible under this standard if, on directions, or a special sensitivity to tem-
the route or line he or she wants to use, perature. Impaired mobility, severe commu-
there is not yet one car per train accessible nications disabilities (e.g., a combination of
or if key stations are not yet accessible. This serious vision and hearing impairments),
eligibility remains even if bus systems cov- cardiopulmonary conditions, or various
ering the area served by the rail system have other serious health problems may have
become 100 percent accessible. This is nec- similar effects. The Department does not be-
essary because people use rail systems for lieve that it is appropriate, or even possible,
different kinds of trips than bus systems. It to create an exhaustive list.
would often take much more in the way of What the rule uses as an eligibility cri-
time, trouble, and transfers for a person to terion is not just the existence of a specific
go on the buses of one or more transit au- impairment-related condition. To be a basis
thorities than to have a direct trip provided for eligibility, the condition must prevent
by the rail operator. Since bus route systems the individual from traveling to a boarding
are often designed to feed rail systems rather location or from a disembarking location.
than duplicate them, it may often be true The word ‘‘prevent’’ is very important. For
that ‘‘you can’t get there from here’’ relying anyone, going to a bus stop and waiting for
entirely on bus routes or the paratransit a bus is more difficult and less comfortable
service area that parallels them. than waiting for a vehicle at one’s home.
If the lift on a vehicle cannot be deployed This is likely to be all the more true for an
at a particular stop, an individual is eligible individual with a disability. But for many
for paratransit under this category with re- persons with disabilities, in many cir-
spect to the service to the inaccessible stop. cumstances, getting to a bus stop is possible.
470
If an impairment related condition only quire that the eligible individual reserve a
makes the job of accessing transit more dif- space for the companion when the individual
ficult than it might otherwise be, but does reserves his or her own ride. This one indi-
not prevent the travel, then the person is not vidual rides even if this means that there is
eligible. less room for other eligible individuals. Ad-
For example, in many areas, there are not ditional individuals beyond the first com-
yet curb cuts. A wheelchair user can often panion are carried only on a space available
get around this problem by taking a less di- basis; that is, they do not displace other
rect route to a destination than an ambula- ADA paratransit eligible individuals.
tory person would take. That involves more A personal care attendant (i.e., someone
time, trouble, and effort than for someone designated or employed specifically to help
without a mobility impairment. But the per- the eligible individual meet his or her per-
son can still get to the bus stop. On the basis sonal needs) always may ride with the eligi-
of these architectural barriers, the person ble individual. If there is a personal care at-
would not be eligible. tendant on the trip, the eligible individual
Entities are cautioned that, particularly in may still bring a companion, plus additional
cases involving lack of curb cuts and other companions on a space available basis. The
architectural barrier problems, assertions of entity may require that, in reserving the
eligibility should be given tight scrutiny. trip, the eligible individual reserve the space
Only if it is apparent from the facts of a par- for the attendant.
ticular case that an individual cannot find a To prevent potential abuse of this provi-
reasonable alternative path to a location sion, the rule provides that a companion
should eligibility be granted. (e.g., friend or family member) does not
If we add a foot of snow to the scenario, count as a personal care attendant unless
then the same person taking the same route the eligible individual regularly makes use
may be unable to get to the bus stop. It is of a personal care attendant and the com-
not the snow alone that stops him; it is the panion is actually acting in that capacity.
interaction of the snow and the fact that the As noted under § 37.125, a provider may re-
individual has a specific-impairment related quire that, as part of the initial eligibility
condition that requires him to push a wheel- certification process, an individual indicate
chair through the snow that prevents the whether he or she travels with a personal
travel. care attendant. If someone does not indicate
Inevitably, some judgment is required to the use of an attendant, then any individual
distinguish between situations in which accompanying him or her would be regarded
travel is prevented and situations in which it simply as a companion.
is merely made more difficult. In the Depart- To be viewed as ‘‘accompanying’’ the eligi-
ment’s view, a case of ‘‘prevented travel’’ ble individual, a companion must have the
can be made not only where travel is lit- same origin and destination points as the eli-
erally impossible (e.g., someone cannot find gible individual. In appropriate cir-
the bus stop, someone cannot push a wheel- cumstances, entities may also wish to pro-
chair through the foot of snow or up a steep vide service to a companion who has either
hill) but also where the difficulties are so an origin or destination, but not both, with
substantial that a reasonable person with the eligible individual (e.g., the individual’s
the impairment-related condition in ques- date is dropped off at her own residence on
tion would be deterred from making the trip. the return trip from a concert).
The regulation makes the interaction be-
tween an impairment-related condition and Section 37.125 ADA Paratransit Eligibility—
the environmental barrier (whether distance, Process
weather, terrain, or architectural barriers) This section requires an eligibilty process
the key to eligibility determinations. This is to be established by each operator of com-
an individual determination. Depending on plementary paratransit. The details of the
the specifics of their impairment-related process are to be devised through the plan-
condition, one individual may be able to get ning and public participation process of this
from his home to a bus stop under a given subpart. The process may not impose unrea-
set of conditions, while his next-door neigh- sonable administrative burdens on appli-
bor may not. cants, and, since it is part of the entity’s
nondiscrimination obligations, may not in-
COMPANIONS
volve ‘‘user fees’’ or application fees to the
The ADA requires entities to provide para- applicant.
transit to one person accompanying the eli- The process may include functional cri-
gible individual, with others served on a teria related to the substantive eligibility
space-available basis. The one individual criteria of § 37.123 and, where appropriate,
who is guaranteed space on the vehicle can functional evaluation or testing of appli-
be anyone—family member, business asso- cants. The substantive eligibility process is
ciate, friend, date, etc. The provider cannot not aimed at making a medical or diagnostic
limit the eligible individual’s choice of type determination. While evaluation by a physi-
of companion. The transit authority may re- cian (or professionals in rehabilitation or
471
other relevant fields) may be used as part of For people granted eligibility, the docu-
the process, a diagnosis of a disability is not mentation of eligibility shall include at least
dispositive. What is needed is a determina- the following information:
tion of whether, as a practical matter, the —The individual’s name
individual can use fixed route transit in his —The name of the transit provider
or her own circumstances. That is a trans- —The telephone number of the entity’s para-
portation decision primarily, not a medical transit coordinator
decision. —An expiration date for eligibility
The goal of the process is to ensure that —Any conditions or limitations on the indi-
only people who meet the regulatory cri- vidual’s eligibility, including the use of a
teria, strictly applied, are regarded as ADA personal care attendant.
paratransit eligible. The Department recog- The last point refers to the situation in
nizes that transit entities may wish to pro- which a person is eligible for some trips but
vide service to other persons, which is not not others. Or if the traveler is authorized to
prohibited by this rule. However, the eligi- have a personal care attendant ride free of
bility process should clearly distinguish charge. For example, the documentation
those persons who are ADA eligible from may say that the individual is eligible only
those who are provided service on other when the temperature falls below a certain
grounds. For example, eligibility documenta- point, or when the individual is going to a
tion must clearly state whether someone is destination not on an accessible bus route,
ADA paratransit eligible or eligible on some or for non-work trips, etc.
other basis. As the mention of an expiration date im-
Often, people tend to think of paratransit plies, certification is not forever. The entity
exclusively in terms of people with mobility may recertify eligibility at reasonable inter-
impairments. Under the ADA, this is not ac- vals to make sure that changed cir-
curate. Persons with visual impairments cumstances have not invalidated or changed
may be eligible under either the first or the individual’s eligibility. In the Depart-
third eligibility categories. To accommodate ment’s view, a reasonable interval for recer-
them, all documents concerning eligibility tification is probably between one and three
must be made available in one or more ac- years. Less than one year would probably be
cessible formats, on request. Accessible for- too burdensome for consumers; over three
mats include computer disks, braille docu- years would begin to lose the point of doing
ments, audio cassettes, and large print docu- recertifications. The recertification interval
ments. A document does not necessarily need should be stated in the entity’s plan. Of
to be made available in the format a recourse, a user of the service can apply to
quester prefers, but it does have to be made modify conditions on his or her eligibility at
available in a format the person can use. any time.
There is no use giving a computer disk to The administrative appeal process is in-
someone who does not have a computer, for tended to give applicants who have been de-
instance, or a braille document to a person nied eligibility the opportunity to have their
who does not read braille. cases heard by some official other than the
When a person applies for eligibility, the one who turned them down in the first place.
entity will provide all the needed forms and In order to have appropriate separation of
instructions. These forms and instructions functions—a key element of administrative
may include a declaration of whether the in- due process—not only must the same person
dividual travels with a personal care attend- not decide the case on appeal, but that per-
ant. The entity may make further inquiries son, to the extent practicable, should not
concerning such a declaration (e.g., with re- have been involved in the first decision (e.g.,
spect to the individual’s actual need for a as a member of the same office, or a super-
personal care attendant). visor or subordinate of the original decision-
When the application process is complete— maker). When, as in the case of a small tran-
all necessary actions by the applicant sit operator, this degree of separation is not
taken—the entity should process the applica- feasible, the second decisionmaker should at
tion in 21 days. If it is unable to do so, it least be ‘‘bubbled’’ with respect to the origi-
must begin to provide service to the appli- nal decision (i.e., not have participated in
cant on the 22nd day, as if the application the original decision or discussed it with the
had been granted. Service may be termi- original decisionmaker). In addition, there
nated only if and when the entity denies the must be an opportunity to be heard in person
application. All determinations shall be in as well as the chance to present written evi-
writing; in the case of a denial, reasons must dence and arguments. All appeals decisions
be specified. The reasons must specifically must be in writing, stating the reasons for
relate the evidence in the matter to the eli- the decision.
gibility criteria of this rule and of the enti- To prevent the filing of stale claims, the
ty’s process. A mere recital that the appli- entity may establish a 60 day ‘‘statute of
cant can use fixed route transit is not suffi- limitations’’ on filing of appeals, the time
cient. starting to run on the date the individual is
472
notified on the negative initial decision. gibility is removed, one may lose the job.
After the appeals process has been completed The same can be said for access to medical
(i.e., the hearing and/or written submission care or other important services.) Con-
completed), the entity should make a deci- sequently, before eligibility may be removed
sion within 30 days. If it does not, the indi- ‘‘for cause’’ under this provision, the entity
vidual must be provided service beginning must provide administrative due process to
the 31st day, until and unless an adverse de- the individual.
cision is rendered on his or her appeal. If the entity proposes to impose sanctions
Under the eligibility criteria of the rule, on someone, it must first notify the indi-
an individual has a right to paratransit if he vidual in writing (using accessible formats
or she meets the eligibility criteria. As noted where necessary). The notice must specify
in the discussion of the nondiscrimination the basis of the proposed action (e.g., Mr.
section, an entity may refuse service to Smith scheduled trips for 8 a.m. on May 15,
anindividual with a disability who engages 2 p.m. on June 3, 9 a.m. on June 21, and 9:20
in violent, seriously disruptive, or illegal p.m. on July 10, and on each occasion the ve-
conduct, using the same standards for exclu- hicle appeared at the scheduled time and Mr.
sion that would apply to any other person Smith was nowhere to be found) and set
who acted in such an inappropriate way. forth the proposed sanction (e.g., Mr. Smith
The rule also allows an entity to establish would not receive service for 15 days).
a process to suspend, for a reasonable period The entity would provide the individual an
of time, the provision of paratransit service opportunity to be heard (i.e., an in-person in-
to an ADA eligible person who establishes a formal hearing before a decisionmaker) as
pattern or practice of missing scheduled well as to present written and oral informa-
trips. The purpose of this process would be to tion and arguments. All relevant entity
deter or deal with chronic ‘‘no-shows.’’ The records and personnel would be made avail-
sanction system—articulated criteria for the able to the individual, and other persons
imposition of sanctions, length of suspension could testify. It is likely that, in many
periods, details of the administrative proc- cases, an important factual issue would be
ess, etc.—would be developed through the whether a missed trip was the responsibility
public planning and participation process for of the provider or the passenger, and the tes-
the entity’s paratransit plan, and the result timony of other persons and the provider’s
reflected in the plan submission to FTA. records or personnel are likely to be relevant
It is very important to note that sanctions in deciding this issue. While the hearing is
could be imposed only for a ‘‘pattern or prac- intended to be informal, the individual could
tice’’ of missed trips. A pattern or practice bring a representative (e.g., someone from an
involves intentional, repeated or regular ac- advocacy organization, an attorney).
tions, not isolated, accidental, or singular The individual may waive the hearing and
incidents. Moreover, only actions within the proceed on the basis of written presen-
control of the individual count as part of a tations. If the individual does not respond to
pattern or practice. Missed trips due to oper- the notice within a reasonable time, the en-
ator error are not attributable to the indi- tity may make, in effect, a default finding
vidual passenger for this purpose. If the vehi- and impose sanctions. If there is a hearing,
cle arrives substantially after the scheduled and the individual needs paratransit service
pickup time, and the passenger has given up to attend the hearing, the entity must pro-
on the vehicle and taken a taxi or gone down vide it. We would emphasize that, prior to a
the street to talk to a neighbor, that is not finding against the individual after this due
a missed trip attributable to the passenger. process procedure, the individual must con-
If the vehicle does not arrive at all, or is sent tinue to receive service. The entity cannot
to the wrong address, or to the wrong en- suspend service while the matter is pending.
trance to a building, that is not a missed trip The entity must notify the individual in
attributable to the passenger. There may be writing about the decision, the reasons for
other circumstances beyond the individual’s it, and the sanctions imposed, if any. Again,
control (e.g., a sudden turn for the worse in this information would be made available in
someone with a variable condition, a sudden accessible formats. In the case of a decision
family emergency) that make it impracti- adverse to the individual, the administrative
cable for the individual to travel at the appeals process of this section would apply.
scheduled time and also for the individual to The sanction would be stayed pending an ap-
notify the entity in time to cancel the trip peal.
before the vehicle comes. Such cir- There are means other than sanctions,
cumstances also would not form part of a however, by which a transit provider can
sanctionable pattern or practice. deal with a ‘‘no-show’’ problem in its system.
Once an entity has certified someone as el- Providers who use ‘‘real time scheduling’’ re-
igible, the individual’s eligibility takes on port that this technique is very effective in
the coloration of a property right. (This is reducing no-shows and cancellations, and in-
not merely a theoretical statement. If one creasing the mix of real time scheduling in a
depends on transportation one has been system can probably be of benefit in this
found eligible for to get to a job, and the eli- area. Calling the customer to reconfirm a
473
reasonable time before pickup can head off for a service of requested visits totaling 21
some problems, as can educating consumers days or more in a relating compact period of
to call with cancellations ahead of time. time. Preferably, this application process
Training of dispatch and operator personnel should be arranged before the visitor arrives,
can help to avoid miscommunications that by letter, telephone or fax, so that a com-
lead to missed trips. plete application can be processed expedi-
tiously.
Section 37.127 Complementary Paratransit for
Visitors Section 37.129 Types of Service
This section requires each entity having a The basic mode of service for complemen-
complementary paratransit system to pro- tary paratransit is demand responsive, ori-
vide service to visitors from out of town on gin-to-destination service. This service may
the same basis as it is provided to local resi- be provided for persons in any one of the
dents. By ‘‘on the same basis,’’ we mean three eligibility categories, and must always
under all the same conditions, service cri- be provided to persons in the first category
teria, etc., without distinction. For the pe- (e.g., people who cannot navigate the sys-
riod of a visit, the visitor is treated exactly tem). The local planning process should de-
like an eligible local user, without any high- cide whether, or in what circumstances, this
er priority being given to either. service is to be provided as door-to-door or
A visitor is defined as someone who does curb-to-curb service.
not reside in the jurisdiction or jurisdictions For persons in the second eligibility cat-
served by the public entity or other public egory (e.g., persons who can use accessible
entities with which it coordinates para- buses, but do not have an accessible bus
transit service. For example, suppose a five- route available to take them to their des-
county metropolitan area provides coordi- tination), origin-to-destination service can
nated paratransit service under a joint plan. be used. Alternatively, the entity can pro-
A resident of any of the five counties would vide either of two other forms of service. One
not be regarded as a visitor in any of them.
is on-call bus, in which the individual calls
Note that the rule talks in terms of ‘‘juris-
the provider and arranges for one or more ac-
diction’’ rather than ‘‘service area.’’ If an in-
cessible buses to arrive on the routes he
dividual lives in XYZ County, but outside
needs to use at the appropriate time. On-call
the fixed route service area of that county’s
bus service must meet all the service criteria
transit provider, the individual is still not a
of § 37.131, except that on-call buses run only
visitor for purposes of paratransit in PQR
on fixed routes and the fare charged can be
County, if PQR is one of the counties with
only the fixed route fare that anyone pays on
which XYZ provides coordinated paratransit
the bus (including discounts).
service.
A visitor can become eligible in one of two The second option is ‘‘feeder paratransit’’
ways. The first is to present documentation to an accessible fixed route that will take
from his or her ‘‘home’’ jurisdiction’s para- the individual to his or her destination.
transit system. The local provider will give Feeder paratransit, again, would have to
‘‘full faith and credit’’ to the ID card or meet all the criteria of § 37.131. With respect
other documentation from the other entity. to fares, the paratransit fare could be
If the individual has no such documentation, charged, but the individual would not be
the local provider may require the provision double charged for the trip. That is, having
of proof of visitor status (i.e., proof of resi- paid the paratransit fare, the transfer to the
dence somewhere else) and, if the individ- fixed route would be free.
ual’s disability is not apparent, proof of the For persons in the third eligibility cat-
disability (e.g., a letter from a doctor or re- egory (e.g., persons who can use fixed route
habilitation professional). Once this docu- transit but who, because of a specific impair-
mentation is presented and is satisfactory, ment-related condition, cannot get to or
the local provider will make service avail- from a stop), the ‘‘feeder paratransit’’ op-
able on the basis of the individual’s state- tion, under the conditions outlined above, is
ment that he or she is unable to use the fixed available. For some trips, it might be nec-
route transit system. essary to arrange for feeder service at both
The local provider need serve someone ends of the fixed route trip. Given the more
based on visitor eligibility for no more than complicated logistics of such arrangements,
21 days. After that, the individual is treated and the potential for a mistake that would
the same as a local person for eligibility pur- seriously inconvenience the passenger, the
poses. This is true whether the 21 days are transit provider should consider carefully
consecutive or parceled out over several whether such a ‘‘double feeder’’ system,
shorter visits. The local provider may re- while permissible, is truly workable in its
quire the erstwhile visitor to apply for eligi- system (as opposed to a simpler system that
bility in the usual local manner. A visitor used feeder service only at one end of a trip
who expects to be around longer than 21 days when the bus let the person off at a place
should apply for regular eligibility as soon as from which he or she could independently
he arrives. The same approach may be used get to the destination). There may be some
474
situations in which origin to destination of each fixed route. At the end of a route,
service is easier and less expensive. there is a semicircular ‘‘cap’’ on the cor-
ridor, consisting of a three-quarter mile ra-
Section 37.131 Service Criteria for
dius from the end point of the route to the
Complementary Paratransit Service Area
parallel sides of the corridor.
The basic bus system service area is a cor-
ridor with a width of 3⁄4 of a mile on each side
Complementary paratransit must provide service area and the entity does not have to
service to any origin or destination point serve origins and destinations there. How-
within a corridor fitting this description ever, if, through the planning process, the
around any route in the bus system. Note entity wants to enlarge the width of one or
that this does not say that an eligible user more of the blue corridors from the 3⁄4 of a
must live within a corridor in order to be eli- mile width, it can do so, to a maximum of 11⁄2
gible. If an individual lives outside the cor- miles on each side of a route. The cost of
ridor, and can find a way of getting to a service provided within such an expanded
pickup point within the corridor, the service
corridor can be counted in connection with
must pick him up there. The same holds true
at the destination end of the trip. an undue financial burden waiver request.
Another concept involved in this service There may be a part of the service area
criterion is the core service area. Imagine a where part of one of the corridors overlaps a
bus route map of a typical city. Color the political boundary, resulting in a require-
bus routes and their corridors blue, against ment to serve origins and destinations in a
the white outline map. In the densely popu- neighboring jurisdiction which the entity
lated areas of the city, the routes (which, lacks legal authority to service. The entity
with their corridors attached, cut 11⁄2 mile is not required to serve such origins and des-
swaths) merge together into a solid blue tinations, even though the area on the other
mass. There are few, if any, white spots left side of the political boundary is within a cor-
uncovered, and they are likely to be very ridor. This exception to the service area cri-
small. Paratransit would serve all origins terion does not automatically apply when-
and destinations in the solid blue mass. ever there is a political boundary, only when
But what of the little white spots sur- there is a legal bar to the entity providing
rounded by various bus corridors? Because it service on the other side of the boundary.
would make sense to avoid providing service
The rule requires, in this situation, that
to such small isolated areas, the rule re-
the entity take all practicable steps to get
quires paratransit service there as well. So
around the problem so that it can provide
color them in too.
Outside the core area, though, as bus service throughout its service area. The enti-
routes follow radial arteries into the suburbs ty should work with the state or local gov-
and exurbs (we know real bus route maps are ernments involved, via coordination plans,
more complicated than this, but we simplify reciprocity agreements, memoranda of un-
for purposes of illustration), there are in- derstanding or other means to prevent polit-
creasingly wide white areas between the blue ical boundaries from becoming barriers to
corridors, which may have corridors on ei- the travel of individuals with disabilities.
ther side of them but are not small areas The definition of the service area for rail
completely surrounded by corridors. These systems is somewhat different, though many
white spaces are not part of the paratransit of the same concepts apply.
475
EC02FE91.191</GPH>
Around each station on the line (whether are not yet accessible, or because they can-
or not a key station), the entity would draw not access stations from points within the
a circle with a radius of 3⁄4 mile. Some circles circles because of a specific impairment-re-
may touch or overlap. The series of circles is lated condition. For individuals who are eli-
the rail system’s service area. (We recognize gible in category 2 because they need an ac-
that, in systems where stations are close to- cessible key station to use the system, the
gether, this could result in a service area paratransit obligation extends only to trans-
that approached being a corridor like that of portation among ‘‘circles’’ centered on des-
a bus line.) The rail system would provide ignated key stations (since, even when the
paratransit service from any point in one key station plan is fully implemented, these
circle to any point in any other circle. The individuals will be unable to use non-key
entity would not have to provide service to stations).
two points within the same circle, since a It is not sufficient for a rail operator to
trip between two points in the vicinity of the refer persons with disabilities to an acces-
same station is not a trip that typically sible bus system in the area. The obligation
would be taken by train. Nor would the enti- to provide paratransit for a rail system is
ty have to provide service to spaces between independent of the operations of any bus sys-
the circles. For example, a train trip would tem serving the same area, whether operated
not get close to point x; one would have to by the same entity that operates the rail
take a bus or other mode of transportation system or a different entity. Obviously, it
to get from station E or F to point x. A para- will be advantageous for bus and rail sys-
transit system comparable to the rail service tems to coordinate their paratransit efforts,
area would not be required to take someone but a coordinated system would have to en-
there either. sure coverage of trips comparable to rail
Rail systems typically provide trips that trips that could not conveniently be taken
are not made, or cannot be made conven- on the fixed route bus system.
iently, on bus systems. For example, many
rail systems cross jurisdictional boundaries RESPONSE TIME
that bus systems often do not. One can trav- Under this provision, an entity must make
el from Station A to a relatively distant Sta- its reservation service available during the
tion E on a rail system in a single trip, while hours its administrative offices are open. If
a bus trip between the same points, if pos- those offices are open 9 to 5, those are the
sible at all, may involve a number of indirect hours during which the reservations service
routings and transfers, on two bus systems must be open, even if the entity’s transit
that may not interface especially well. service operated 6 a.m. to midnight. On days
Rail operators have an obligation to pro- prior to a service day on which the adminis-
vide paratransit equivalents of trips between trative offices are not open at all (e.g., a
circles to persons who cannot use fixed route Sunday prior to a Monday service day), the
rail systems because they cannot navigate reservation service would also be open 9 to 5.
the system, because key stations or trains Note that the reservation service on any day
476
EC02FE91.192</GPH>
does not have to be provided directly by a same provider (or where the same bus pro-
‘‘real person.’’ An answering machine or vider runs parallel local and express buses
other technology can suffice. along the same route), the comparison would
Any caller reaching the reservation service be made to the mode on which a typical fixed
during the 9 to 5 period, in this example, route user would make the particular trip,
could reserve service for any time during the based on schedule, length, convenience,
next 6 a.m. to 12 midnight service day. This avoidance of transfers, etc.
is the difference between ‘‘next day sched- Companions are charged the same fare as
uling’’ and a system involving a 24-hour the eligible individual they are accom-
prior reservation requirement, in which a panying. Personal care attendants ride free.
caller would have to reserve a trip at 7 a.m. One exception to the fare requirement is
today if he or she wanted to travel at 7 a.m. made for social service agency (or other or-
tomorrow. The latter approach is not ade- ganization-sponsored) trips. This exception,
quate under this rule. which allows the transit provider to nego-
The entity may use real time scheduling tiate a price with the agency that is more
for all or part of its service. Like the Moliere than twice the relevant fixed route fare, ap-
character who spoke prose all his life with- plies to ‘‘agency trips,’’ by which we mean
out knowing it, many entities may already trips which are guaranteed to the agency for
be using some real time scheduling (e.g., for its use. That is, if an agency wants 12 slots
return trips which are scheduled on a when- for a trip to the mall on Saturday for clients
needed basis, as opposed to in advance). A with disabilities, the agency makes the res-
number of transit providers who have used ervation for the trips in its name, the agency
real time scheduling believe that it is more will be paying for the transportation, and
efficient on a per-trip basis and reduces can- the trips are reserved to the agency, for
cellations and no-shows significantly. We en- whichever 12 people the agency designates,
courage entities to consider this form of the provider may then negotiate any price it
service. can with the agency for the trips. We distin-
Sometimes users want to schedule service guish this situation from one in which an
well in advance, to be sure of traveling when agency employee, as a service, calls and
they want to. The rule tells providers to per- makes an individual reservation in the name
mit reservations to be made as much as 14 of a client, where the client will be paying
days in advance. In addition, though an enti- for the transportation.
ty may negotiate with a user to adjust pick-
up and return trip times to make scheduling RESTRICTIONS AND PRIORITIES BASED ON TRIP
more efficient, the entity cannot insist on PURPOSE
scheduling a trip more than one hour earlier
or later than the individual desires to travel. This is a simple and straightforward re-
Any greater deviation from desired trip quirement. There can be no restrictions or
would exceed the bounds of comparability. priorities based on trip purpose in a com-
parable complementary paratransit system.
FARES When a user reserves a trip, the entity will
need to know the origin, destination, time of
To calculate the proper paratransit fare,
travel, and how many people are traveling.
the entity would determine the route(s) that
The entity does not need to know why the
an individual would take to get from his or
person is traveling, and should not even ask.
her origin to his or her destination on the
fixed route system. At the time of day the HOURS AND DAYS OF SERVICE
person was traveling, what is the fare for
that trip on those routes? Applicable charges This criterion says simply that if a person
like transfer fees or premium service charges can travel to a given destination using a
may be added to the amount, but discounts given fixed route at a given time of day, an
(e.g., the half-fare discount for off-peak fixed ADA paratransit eligible person must be able
route travel by elderly and handicapped per- to travel to that same destination on para-
sons) would not be subtracted. The transit transit at that time of day. This criterion
provider could charge up to twice the result- recognizes that the shape of the service area
ing amount for the paratransit trip. can change. Late at night, for example, it is
The mode through which paratransit is common for certain routes not to be run.
provided does not change the method of cal- Those routes, and their paratransit cor-
culation. For example, if paratransit is pro- ridors, do not need to be served with para-
vided via user side subsidy taxi service rath- transit when the fixed route system is not
er than publicly operated dial-a-ride van running on them. One couldn’t get to des-
service, the cost to the user could still be tinations in that corridor by fixed route at
only twice the applicable fixed route fare. those times, so paratransit service is not
The system operates the same regardless of necessary either.
whether the paratransit trip is being pro- It should be pointed out that service dur-
vided in place of a bus or a rail trip the user ing low-demand times need not be by the
cannot make on the fixed route system. same paratransit mode as during higher
Where bus and rail systems are run by the usage periods. For example, if a provider
477
uses its own paratransit vans during high de- traffic jams), resulting in frequent late ar-
mand periods, it could use a private con- rivals.
tractor or user-side subsidy provider during The rule mentions three specific examples
low demand periods. This would presumably of operational patterns or practices that
be a more efficient way of providing late would violate this provision. The first is a
night service. A call-forwarding device for pattern or practice of substantial numbers of
communication with the auxiliary carrier significantly untimely pickups (either for
during these low demand times would be per- initial or return trips). To violate this provi-
fectly acceptable, and could reduce adminis- sion, there must be both a substantial num-
trative costs. ber of late arrivals and the late arrivals in
question must be significant in length. For
CAPACITY CONSTRAINTS example, a DOT Inspector General’s (IG) re-
port on one city’s paratransit system dis-
This provision specifically prohibits two
closed that around 30 percent of trips were
common mechanisms that limit use of a
between one and five hours late. Such a situ-
paratransit system so as to constrain de-
ation would trigger this provision. On the
mand on its capacity. The first is a waiting
other hand, only a few instances of trips one
list. Tyically, a waiting list involves a deter-
to five hours late, or many instances of trips
mination by a provider that it can provide
a few minutes late, would not trigger this
service only to a given number of eligible
provision.
persons. Other eligible persons are not able The second example is substantial numbers
to receive service until one of the people of trip denials or missed trips. For example,
being served moves away or otherwise no if on a regular basis the reservation phone
longer uses the service. Then the persons on lines open at 5 a.m. and callers after 7 a.m.
the waiting list can move up. The process is are all told that they cannot travel, or the
analogous to the wait that persons in some phone lines shut down after 7 a.m. and a re-
cities have to endure to be able to buy sea- corded message says to call back the next
son tickets to a sold-out slate of professional day, or the phone lines are always so busy
football games. that no one can get through, this provision
The second mechanism specifically men- would be triggered. (Practices of this kind
tioned is a number limit on the trips a pas- would probably violate the response time
senger can take in a given period of time. It criterion as well.) Also, if, on a regular basis,
is a kind of rationing in which, for example, the entity misses a substantial number of
if one has taken his quota of 30 trips this trips (e.g., a trip is scheduled, the passenger
month, he cannot take further trips for the is waiting, but the vehicle never comes, goes
rest of the month. to the wrong address, is extremely late, etc.),
In addition, this paragraph prohibits any it would violate this provision.
operational pattern or practice that signifi- The third example is substantial numbers
cantly limits the availability of service of of trips with excessive trip lengths. Since
ADA paratransit eligible persons. As dis- paratransit is a shared ride service, para-
cussed under § 37.125 in the context of missed transit rides between Point A and Point B
trips by passengers, a ‘‘pattern or practice’’ will usually take longer, and involve more
involves, regular, or repeated actions, not intermediate stops, than a taxi ride between
isolated, accidental, or singular incidents. A the same two points. However, when the
missed trip, late arrival, or trip denial now number of intermediate stops and the total
and then does not trigger this provision. trip time for a given passenger grows so
Operational problems outside the control large as to make use of the system prohibi-
of the entity do not count as part of a pat- tively inconvenient, then this provision
tern or practice under this provision. For ex- would be triggered. For example, the IG re-
ample, if the vehicle has an accident on the port referred to above mentioned a situation
way to pick up a passenger, the late arrival in which 9 percent of riders had one way
would not count as part of a pattern or prac- trips averaging between two and four hours,
tice. If something that could not have been with an average of 16 intermediate stops.
anticipated at the time the trip was sched- Such a situation would probably trigger this
uled (e.g., a snowstorm, an accident or haz- provision.
ardous materials incident that traps the Though these three examples probably
paratransit vehicle, like all traffic on a cer- cover the most frequently cited problems in
tain highway, for hours), the resulting paratransit operations that directly or indi-
missed trip would not count as part of a pat- rectly limit the provision of service that is
tern or practice. On the other hand, if the en- theoretically available to eligible persons,
tity regularly does not maintain its vehicles the list is not exhaustive. Other patterns or
well, such that frequent mechanical break- practices could trigger this provision. For
downs result in missed trips or late arrivals, example, the Department has heard about a
a pattern or practice may exist. This is also situation in which an entity’s paratransit
true in a situation in which scheduling prac- contractor was paid on a per-trip basis, re-
tices fail to take into account regularly oc- gardless of the length of the trip. The con-
curring traffic conditions (e.g., rush hour tractor therefore had an economic incentive
478
to provide as many trips as possible. As a re- ice at 8 a.m. for work trips; the same person
sult, the contractor accepted short trips and could not be wait-listed for access to para-
routinely denied longer trips. This would be transit service in general.
a pattern or practice contrary to this provi-
sion (and contrary to the service area provi- Section 37.135 Submission of Paratransit Plans
sion as well). This section contains the general require-
ments concerning the submission of para-
ADDITIONAL SERVICE
transit plans. Each public entity operating
This provision emphasizes that entities fixed route service is required to develop and
may go beyond the requirements of this sec- submit a plan for paratransit service. Where
tion in providing service to ADA paratransit you send your plans depends on the type of
individuals. For example, no one is precluded entity you are. There are two categories of
from offering service in a larger service area, entities which should submit their plans to
during greater hours than the fixed route states—(1) FTA recipients and (2) entities
system, or without charge. However, costs of who are administered by the state on behalf
such additional service do not count with re- of FTA.
spect to undue financial burden waiver re- These FTA grantees submit their plans to
quests. Where a service criterion itself incor- the states because the agency would like the
porates a range of actions the entity may benefit of the states’ expertise before final
take (e.g., providing wide corridors outside review. The states’ role is as a commenter,
the urban core, using real time scheduling), not as a reviewer.
however, costs of providing that optional This section also specifies annual progress
service may be counted for undue financial reports concerning the meeting of previously
burden waiver request purposes. approved milestones, any slippage (with the
reasons for it and plans to catch up), and any
Section 37.133 Subscription Service significant changes in the operator’s envi-
As part of its paratransit service, an entity ronment, such as the withdrawal from the
may include a subscription service compo- marketplace of a private paratransit pro-
nent. However, at any given time of day, this vider or whose service the entity has relied
component may not absorb more than 50 per- upon to provide part of its paratransit serv-
cent of available capacity on the total sys- ice.
tem. For example, if, at 8 a.m., the system Paragraph (d) of this section specifies a
can provide 400 trips, no more than 200 of maximum time period for the phase-in of the
these can be subscription trips. implementation of paratransit plans. The
The one exception to this rule would occur Department recognizes that it is not reason-
in a situation in which there is excess non- able to expect paratransit systems to spring
subscription capacity available. For exam- into existence fully formed, like Athena
ple, if over a long enough period of time to from the head of Zeus. Under this paragraph,
establish a pattern, there were only 150 non- all entities must be in full compliance with
subscription trips requested at 8 a.m., the all paratransit provisions by January 26,
provider could begin to provide 250 subscrip- 1997, unless the entity has received a waiver
tion trips at that time. Subsequently, if non- from FTA based on undue financial burden
subscription demand increased over a period (which applies only to the service criteria of
of time, such that the 50 trips were needed to § 37.131, not to eligibility requirements or
satisfy a regular non-subscription demand at other paratransit provisions).
that time, and overall system capacity had While the rule assumes that most entities
not increased, the 50 trips would have to be will take a year to fully implement these
returned to the non-subscription category. provisions, longer than a year requires the
During times of high subscription demand, paratransit plans to submit milestones that
entities could use the trip time negotiation are susceptible to objective verification. Not
discretion of § 37.131(c)(2) to shift some trips all plans will be approved with a five-year
to other times. lead-in period. Consistent with the proposed
Because subscription service is a limited rule, the Department intends to look at each
subcomponent of paratransit service, the plan individually to see what is required for
rule permits restrictions to be imposed on its implementation in each case. DOT may ap-
use that could not be imposed elsewhere. prove only a shorter phase-in period in a
There may be a waiting list for provision of given case.
subscription service or the use of other ca-
Section 37.137 Paratransit Plan Development
pacity constraints. Also, there may be re-
strictions or priorities based on trip purpose. Section 35.137 establishes three principal
For example, subscription service under requirements in the development of para-
peak work trip times could be limited to transit plans.
work trips. We emphasize that these limita- First is the requirement to survey existing
tions apply only to subscription service. It is paratransit services within the service area.
acceptable for a provider to put a person on This is required by section 223(c)(8) of the
a waiting list for access to subscription serv- ADA. While the ADA falls short of explicitly
479
requiring coordination, clearly this is one of makes possible. This opportunity is not
the goals. The purpose of the survey is to de- without tremendous challenges to the tran-
termine what is being provided already, so sit providers. It is only through dialogue,
that a transit provider can accurately assess over the long term, that usable, possible
what additional service is needed to meet the plans can be developed and implemented.
service criteria for comparable paratransit
service. The plan does not have to discuss Section 37.139 Plan Contents
private paratransit providers whose services This section contains substantive cat-
will not be used to help meet paratransit re- egories of information to be contained in the
quirements under this rule. However, the paratransit plan: Information on current and
public entity will need to know specifically changing fixed route service; inventory of
what services are being provided by whom if existing paratransit service; discussion of
the entity is to count the transportation to- the discrepancies between existing para-
ward the overall need. transit and what is required under this regu-
Since the public entity is required to pro- lation; a discussion of the public participa-
vide paratransit to all ADA paratransit eligi- tion requirements and how they have been
ble individuals, there is some concern that met; the plan for paratransit service; the
currently provided service may be cut back budget for paratransit services; efforts to co-
or eliminated. It is possible that this may ordinate with other transportation pro-
happen and such action would have a nega- viders; a description of the process in place
tive effect on transportation provided to per- or to be used to register ADA paratransit eli-
sons with disabilities in general. The Depart- gible individuals; a description of the docu-
ment urges each entity required to submit a mentation provided to each individual
plan to work with current providers of trans- verifying eligibility; and a request for a
portation, not only to determine what trans- waiver based on undue financial burden, if
portation services they provide, but also to applicable. The final rule contains a reorga-
continue to provide service into the foresee- nized and slightly expanded section on plan
able future. contents, reflecting requests to be more ex-
Second, § 37.137 specifies requirements for plicit, rather than less explicit.
public participation. First, the entity must The list of required elements is the same
perform outreach, to ensure that a wide for all entities required to submit para-
range of persons anticipated to use the paratransit plans. There is no document length
transit service know about and have the op- requirement, however. Each entity (or group
portunity to participate in the development plan) is unique and we expect the plans to re-
of the plan. Not only must the entity iden- flect this. While we would like the plan ele-
tify who these individuals or groups are, the ments presented in the order listed in this
entity also must contact the people at an section, the contents most likely will vary
early stage in the development process. greatly, depending on the size, geographic
The other public participation require- area, budget, complexity of issues, etc. of the
ments are straightforward. There must be a particular submitting agency.
public hearing and an opportunity to com- This section and § 37.139 provide for a max-
ment. The hearing must be accessible to imum phase-in period of five years, with an
those with disabilities, and notice of the assumed one-year phase-in for all para-
hearing must be accessible as well. There is transit programs. (The required budget has
a special efforts test identified in this para- been changed to five years as well.) The De-
graph for comments concerning a multi-year partment has established a maximum five-
phase-in of a paratransit plan. year phase-in in the belief that not all sys-
The final general requirement of the sec- tems will require that long, but that some,
tion specifies that efforts at public participa- particularly those which had chosen to meet
tion must be made permanent through some compliance with section 504 requirements
mechanism that provides for participation in with accessible fixed route service, may in-
all phases of paratransit plan development deed need five years.
and submission. The Department is not re- We are confident that, through the public
quiring that there be an advisory committee participation process, entities can develop a
established, although this is one method of realistic plan for full compliance with the
institutionalizing participation. The Depart- ADA. To help ensure this, the paratransit
ment is not as interested in the specific plan contents section now requires that any
structure used to ensure public participation plan which projects full compliance after
as we are interested in the effectiveness of January 26, 1993 must include milestones
the effort. which can be measured and which result in
The Department believes that public par- steady progress toward full compliance. For
ticipation is a key element in the effective example, it is possible that the first part of
implementation of the ADA. The ADA is an year one is used to ensure comprehensive
opportunity to develop programs that will registration of all eligible persons with dis-
ensure the integration of all persons into not abilities, training of transit provider staffs
just the transportation system of America, and the development and dissemination of
but all of the opportunities transportation information to users and potential users in
480
accessible formats and some modest increase by January 26, 1992. At a minimum, this doc-
in paratransit service is provided. A plan ument must include the following:
would not be permitted to indicate that no (1) A general statement that the partici-
activity was possible in the first year, but pating entities intend to file a joint coordi-
proportionately more progress could be nated plan;
planned for later years than for the first (2) A certification from each participating
year. Implementation must begin in January entity that it is committed to providing
1992. paratransit as a part of a coordinated plan;
Each plan, including its proposed phase-in (3) A certification from each participating
period, will be the subject of examination by entity that it will maintain at least current
FTA. Not all providers who request a five- levels of paratransit service until the coordi-
year phase-in will receive approval for a five- nated paratransit service called for by the
year phase-in. The plan must be careful, joint plan is implemented;
therefore, to explain what current services (4) As many elements of the plan as pos-
are, what the projections are, and what sible.
methods are in place to determine and pro- These provisions ensure that significant
vide accountability for progress toward full planning will precede, and plan implementa-
compliance. tion will begin by, January 26, 1992, without
We have been asked for assistance in as- precluding entities from cooperating because
sessing what the demand for paratransit it was not possible to complete coordinating
service will be. FTA’s ADA Paratransit Man- different public entities by that date. The
ual provides detailed assistance in this and entities involved in a joint plan are required
many other areas of the plan development to submit all elements of their plan by July
process. 26, 1992.
The ADA itself contained a figure of 43 The final provision in the section notes
million persons with disabilities. It should that an entity may later join a coordinated
be pointed out that many of these may not plan, even if it has filed its own plan on Jan-
necessarily be eligible for ADA paratransit uary 26, 1992. An entity must submit its own
service. The Department’s regulatory impact plan by January 26, 1992, if it has not pro-
analysis discussing the probable costs in- vided a certification of participation in a
volved in implementing this rule places the joint plan.). In this case, the entity must
possible percentage of population who would provide the assurances and certifications re-
be eligible for paratransit service at between quired of all of the other participating enti-
1.4 and 1.9 percent. This figure can vary de- ties.
pending on the type and variety of services The Department fully expects that many
you have available, or on such things as cli- jurisdictions filing joint plans will be able to
mate, proximity to medical care, family, etc. do so by January 26, 1992. For those who can-
that a person with a disability may need. not, the regulatory provision ensures that
Clearly estimating demand is one of the there will be no decrease in paratransit serv-
most critical elements in the plan, since it ice. Further, since we anticipate coordinated
will be used to make decisions about all of service areas to provide more effective serv-
the various service criteria. ice, complete implementation of a joint plan
Section 37.139 contains a new paragraph (j), could be more rapid than if each entity was
spelling out in more detail requirements re- providing service on its own.
lated to the annual submission of plans. Entities submitting a joint plan do not
Since there is now the possibility for five- have any longer than any other entities to
year phase-ins, the annual plan dem- fully implement complementary paratransit
onstrates the progress made to date, and ex- service. In any case, all plans (joint or sin-
plains any delays. gle) must be fully implemented by January
26, 1997, absent a waiver for undue financial
Section 37.141 Requirements If a Joint Plan is burden (which would, in the case of a joint
Submitted plan, be considered on a joint basis).
The Department believes that, particularly
Section 37.143 Paratransit Plan
in large, multi-provider regions, a coordi-
Implementation
nated regional paratransit plan and system
are extremely important. Such coordination As already discussed under § 37.135, the
can do much to ensure that the most com- states will receive FTA recipient plans for
prehensive transportation can be provided recipients of funding under 49 U.S.C. 5311 ad-
with the most efficient use of available re- ministered by the State or any small urban-
sources. We recognize that the effort of put- ized area recipient of funds under 49 U.S.C.
ting together such a coordinated system can 5307 administered by a state. Public entities
be a lengthy one. This section is intended to who do not receive FTA funds will submit
facilitate the process of forming such a co- their plans directly to the applicable Re-
ordinated system. gional Office (listed in appendix B to the
If a number of entities wish to submit a rule).

joint plan for a coordinated system, they The role of the state is to accept the plans
must, like other entities, submit a document on behalf of FTA, to ensure that all plans are
481
submitted to it and forward the plans, with cant progress in implementing a plan in
any comments on the plans, to FTA. This years four and five, but no progress in years
comment is very important for FTA to re- one and two. Similarly, the progress must be
ceive, since states administer these pro- susceptible to objective verification. An en-
grams on behalf of FTA. Each state’s specific tity cannot merely ‘‘work toward’’ devel-
knowledge of FTA grantees it administers oping a particular aspect of a plan.
will provide helpful information to FTA in The Department intends that undue bur-
making its decisions. den waiver requests will be given close scru-
The rule lists five questions the states tiny, and waiver will not be granted highly.
must answer when they forward the plans. In reviewing requests, however, as the legis-
These questions are gauged to capitalize on lative history indicates, FTA will look at the
the working knowledge the states possess on individual financial constraints within
the grantees. FTA will send a more specific which each public entity operates its fixed
letter of instruction to each state explaining route system. ‘‘Any determination of undue
its role. financial burden cannot have assumed the
collection of additional revenues, such as
Section 37.147 FTA Review of Plans those received through increases in local
This provision spells out factors FTA will taxes or legislative appropriations, which
consider in reviewing each plan, including would not have otherwise been made avail-
whether the submission is complete, whether able to the fixed route operator.’’ (H. Rept.
the plan complies with the substance of the 101–485, Pt. 1, at 31)
ADA regulation, whether the entity com-
Section 37.153 FTA Waiver Determination
plied with the public participation require-
ments in developing the plan, efforts by the If the FTA Administrator grants a waiver
entity to coordinate with other entities in a for undue financial burden, the waiver will
plan submission, and any comments sub- be for a specified period of time and the Ad-
mitted by the states. ministrator will determine what the entity
These elements are not the only items that must do to meet its responsibilities under
will be reviewed by FTA. Every portion of the ADA. Each determination will involve a
the plan will be reviewed and assessed for judgment of what is appropriate on a case-
compliance with the regulation. This section by-case basis. Since each waiver will be
merely highlights those provisions thought granted based on individual circumstances,
most important by the Department. the Department does not deem it appropriate
to specify a generally applicable duration for
Section 37.151 Waiver for Undue Financial a waiver.
Burden When a waiver is granted, the rule calls for
The Department has adopted a five-year entities to look first at limiting the number
phase-in for paratransit service. Under this of trips provided to each individual as a
scheme, each entity required to provide means of providing service that does not cre-
paratransit service will be able to design a ate an undue burden. This capacity con-
phase-in of its service specifically geared to straint, unlike manipulations of other serv-
local circumstances. While all jurisdictions ice criteria, will not result in a degradation
will not receive approval for plans with a of the quality of service. An entity intending
five year phase-in, each entity will be able to to submit an undue burden waiver request
request what it needs based on local cir- should take this approach into account in its
cumstances. Generally, the section allows an planning process.
entity to request a wavier at any time it de- It should be noted that requiring an entity
termines that it will not be able to meet a to provide paratransit service at least during
five-year phase-in or make measured core hours along key routes is one option
progress toward its full compliance date that the Administrator has available in
specified in its original plan. making a decision about the service to be
A waiver for undue financial burden should provided. This requirement stems from the
be requested if one of the following cir- statutory provision that the Administrator
cumstances applies. First, when the entity can require the entity to provide a minimum
submits its first plan on January 26, 1992, if level of service, even if to do so would be an
the entity knows it will not be able to reach undue financial burden. Certainly part of a
full compliance within five years, or if the request for a waiver could be a locally en-
entity cannot make measured progress the dorsed alternative to this description of
first year it may submit a waiver request. basic service. The rule states explicitly the
The entity also should apply for a waiver, if, Administrator’s discretion to return the ap-
during plan implementation, there are plication for more information if necessary.
changed circumstances which make it un-
Section 37.155 Factors in Decision To Grant an
likely that compliance will be possible.
Undue Financial Burden Waiver
The concept of measured progress should

be given its plain meaning. It is not accept- Factors the Administrator will consider in
able to submit a plan which shows signifi- making a decision whether to grant an
482
undue financial burden waiver request in- and Human Services grant or private con-
clude effects on current fixed route service, tributions to be counted toward the entity’s
reductions in other services, increases in financial commitment to paratransit.
fares, resources available to implement com-
plementary paratransit over the period of SUBPART G—PROVISION OF SERVICE
the plan, current level of accessible service
(fixed route and paratransit), cooperation Section 37.161 Maintenance of Accessible
among transit providers, evidence of in- Features—General
creased efficiencies that have been or could
This section applies to all entities pro-
be used, any unique circumstances that may
affect the entity’s ability to provide para- viding transportation services, public and
transit service, the level of per capita service private. It requires those entities to main-
being provided, both to the population as a tain in operative condition those features or
whole and what is being or anticipated to be facilities and equipment that make facilities
provided to persons who are eligible and reg- and vehicles accessible to and usable by indi-
istered to receive ADA paratransit service. viduals with disabilities.
This final element allows some measure of The ADA requires that, to the maximum
comparability, regardless of the specific extent feasible, facilities be accessible to and
service criteria and should assist in a general usable by individuals with disabilities. This
assessment of level of effort. section recognizes that it is not sufficient to
It is only the costs associated with pro- provide features such as lift-equipped vehi-
viding paratransit service to ADA-para- cles, elevators, communications systems to
transit eligible persons that can be counted provide information to people with vision or
in assessing whether or not there is an undue hearing impairments, etc. if these features
financial burden. Two cost factors are in- are not maintained in a manner that enables
cluded in the considerations which enhance individuals with disabilities to use them. In-
the Administrator’s ability to assess real
operative lifts or elevators, locked accessible
commitment to these paratransit provisions.
doors, accessible paths of travel that are
First, the Department will allow a statis-
tically valid methodology for estimating blocked by equipment or boxes of materials
number of trips mandated by the ADA. While are not accessible to or usable by individuals
the regulation calls for a trip-by-trip deter- with disabilities.
mination of eligibility, this provision recog- The rule points out that temporary ob-
nizes that this is not possible for some sys- structions or isolated instances of mechan-
tems, particularly the large systems. Since ical failure would not be considered viola-
only those trips provided to a person when he tions of the ADA or this rule. Repairs must
or she is ADA eligible may be counted in de- be made ‘‘promptly.’’ The rule does not, and
termining an undue financial burden, this probably could not, state a time limit for
provision is necessary. making particular repairs, given the variety
Second, in determining costs to be counted of circumstances involved. However, repair-
toward providing paratransit service, para- ing accessible features must be made a high
graph (b)(3) allows an entity to include in its priority. Allowing obstructions or out of
paratransit budget dollars to which it is le- order accessibility equipment to persist be-
gally entitled, but which, as a matter of yond a reasonable period of time would vio-
state or local funding arrangements, are pro- late this Part, as would mechanical failures
vided to another entity that is actually pro- due to improper or inadequate maintenance.
viding the paratransit service. Failure of the entity to ensure that acces-
For example, a state government may pro-
sible routes are free of obstruction and prop-
vide a certain formula allocation of the rev-
erly maintained, or failure to arrange
enue from a certain tax to each jurisdiction
prompt repair of inoperative elevators, lifts,
for use in providing transportation service at
or other accessibility-related equipment,
the local level. The funds, depending on local
arrangements, may flow either to a transit would also violate this part.
authority—a regulated entity under this The rule also requires that accommoda-
rule—or to a city or county government. If tions be made to individuals with disabilities
the funds go to the transit authority, they who would otherwise use an inoperative ac-
clearly may be counted in an undue burden cessibility feature. For example, when a rail
calculation. In addition, however, this provi- system discovers that an elevator is out of
sion also allows funds that flow through the order, blocking access to one of its stations,
city or county government to be counted in it could accommodate users of the station by
the undue burden calculation, since they are announcing the problem at other stations to
basically the same funds and should not be alert passengers and offer accessible shuttle
treated differently based on the accident of bus service around the temporarily inacces-
previously-determined local arrangements. sible station. If a public address system were
On the other hand, this provision does not out of order, the entity could designate per-
allow funds of a private non-profit or other sonnel to provide information to customers
organization who uses Department of Health with visual impairments.
483
Section 37.163 Keeping Vehicle Lifts in opportunity (e.g., from a phone booth during
Operative Condition—Public Entities the turnaround time at the end of the run).
It is not sufficient to wait until the end of
This section applies only to public entities.
the day and report the problem when the ve-
Of course, like vehicle acquisition require-
hicle returns to the barn.
ments and other provisions applying to pub-
When a lift is discovered to be inoperative,
lic entities, these requirements also apply
either because of an in-service failure or as
when private entities ‘‘stand in the shoes’’ of the result of a maintenance check, the enti-
public entities in contracting situations, as ty must take the vehicle out of service be-
provided in § 37.23. fore the beginning of its next service day
This section’s first requirement is that the (with the exception discussed below) and re-
entity establish a system of regular and fre- pair the lift before the vehicle is put back
quent maintenance checks of lifts sufficient into service. In the case of an in-service fail-
to determine if they are operative. ure, this means that the vehicle can con-
Vehicle and equipment maintenance is an tinue its runs on that day, but cannot start
important component of successful acces- a new service day before the lift is repaired.
sible service. In particular, an aggressive If a maintenance check in the evening after
preventive maintenance program for lifts is completion of a day’s run or in the morning
essential. Lifts remain rather delicate pieces before a day’s runs discloses the problem,
of machinery, with many moving parts, then the bus would not go into service until
which often must operate in a harsh environ- the repair had taken place.
ment of potholes, dust and gravel, variations The Department realizes that, in the years
in temperature, snow, slush, and deicing before bus fleets are completely accessible,
compounds. It is not surprising that they taking buses with lifts out of service for re-
sometimes break down. pairs in this way would probably result in an
The point of a preventive maintenance pro- inaccessible spare bus being used on the
gram is to prevent breakdowns, of course. route, but at least attention would have to
But it is also important to catch broken lifts be paid quickly to the lift repair, resulting in
as soon as possible, so that they can be re- a quicker return to service of a working ac-
paired promptly. Especially in a bus system cessible bus.
with relatively low lift usage, it is possible The rule provides an exception for those
that a vehicle could go for a number of days situations in which there is no spare vehicle
without carrying a passenger who uses the (either accessible or inaccessible) available
lift. It is highly undesirable for the next pas- to take the place of the vehicle with an oper-
senger who needs a lift to be the person who ative lift, such that putting the latter vehi-
discovers that the lift is broken, when a cle into the shop would result in a reduction
maintenance check by the operator could of service to the public (e.g., a scheduled run
have discovered the problem days earlier, re- on a route could not be made). The Depart-
sulting in its repair. ment would emphasize that the exception
Therefore, the entity must have a system does not apply when there is any spare vehi-
for regular and frequent checks, sufficient to cle available.
determine if lifts are actually operative. Where the exception does apply, the pro-
This is not a requirement for the lift daily. vider may keep the vehicle with the inoper-
(Indeed, it is not, as such, a requirement for ative lift in service for a maximum of three
lift cycling at all. If there is another means days (for providers operating in an area of
available of checking the lift, it may be over 50,000 population) or five days (for pro-
used.) If alternate day checks, for example, viders operating in an area of 50,000 popu-
are sufficient to determine that lifts are ac- lation or less). After these times have
tually working, then they are permitted. If a elapsed, the vehicle must go into the shop,
lift is used in service on a given day, that not to return until the lift is repaired. Even
may be sufficient to determine that the lift during the three- or five-day period, if an ac-
is operative with respect to the next day. It cessible spare bus becomes available at any
would be a violation of this part, however, time, it must be used in place of the bus with
for the entity to neglect to check lifts regu- the inoperative lift or an inaccessible spare
larly and frequently, or to exhibit a pattern that is being used in its place.
of lift breakdowns in service resulting in In a fixed route system, if a bus is oper-
stranded passengers when the lifts had not ating without a working lift (either on the
been checked before the vehicle failed to pro- day when the lift fails in service or as the re-
vide required accessibility to passengers that sult of the exception discussed above) and
day. headways between accessible buses on the
When a lift breaks down in service, the route on which the vehicle is operating ex-
driver must let the entity know about the ceed 30 minutes, the entity must accommo-
problem by the most immediate means avail- date passengers who would otherwise be in-
able. If the vehicle is equipped with a radio convenienced by the lack of an accessible
or telephone, the driver must call in the bus. This accommodation would be by a
problem on the spot. If not, then the driver paratransit or other special vehicle that
would have to make a phone call at the first would pick up passengers with disabilities
484
who cannot use the regular bus because its curement systems, that can successfully re-
lift is inoperative. Passengers who need lifts strain a wide variety of wheelchairs. It is our
in this situation would, in effect, be ADA understanding that the cost of doing so is
paratransit eligible under the second eligi- not enormous.
bility category. However, since they would An entity may not, in any case, deny
have no way of knowing that the bus they transportation to a wheelchair and its user
sought to catch would not be accessible that because the wheelchair cannot be secured or
day, the transit authority must actively pro- restrained by a vehicle’s securement system,
vide alternative service to them. This could to the entity’s satisfaction. The same point
be done, for example, by having a ‘‘shadow’’ applies to an OPMD and its user, subject to
accessible service available along the route legitimate safety requirements.
or having the bus driver call in the minute Entities have often recommended or re-
he saw an accessible passenger he could not quired that a wheelchair user transfer out of
pick up (including the original passenger his or her own device into a vehicle seat.
stranded by an in-service lift failure), with a Under this rule, it is no longer permissible to
short (i.e., less than 30-minute) response require such a transfer. The entity may pro-
from an accessible vehicle dispatched to pick vide information on risks and make a rec-
up the stranded passenger. To minimize ommendation with respect to transfer, but
problems in providing such service, when a the final decision on whether to transfer is
transit authority is using the ‘‘no spare vehi- up to the passenger.
cles’’ exception, the entity could place the The entity’s personnel have an obligation
vehicle with the inoperative lift on a route to ensure that a passenger with a disability
with headways between accessible buses is able to take advantage of the accessibility
shorter than 30 minutes. and safety features on vehicles. Con-
sequently, the driver or other personnel
Section 37.165 Lift and Securement Use must provide assistance with the use of lifts,
This provision applies to both public and ramps, and securement devices. For example,
private entities. the driver must deploy the lift properly and
All people using wheelchairs, as defined in safely. If the passenger cannot do so inde-
the rule, and other powered mobility devices, pendently, the driver must assist the pas-
under the circumstances provided in the senger with using the securement device. On
rule, are to be allowed to ride the entity’s a vehicle which uses a ramp for entry, the
vehicles. driver may have to assist in pushing a man-
Entities may require wheelchair users to ual wheelchair up the ramp (particularly
ride in designated securement locations. where the ramp slope is relatively steep). All
That is, the entity is not required to carry these actions may involve a driver leaving
wheelchair users whose wheelchairs would his seat. Even in entities whose drivers tra-
have to park in an aisle or other location ditionally do not leave their seats (e.g., be-
where they could obstruct other persons’ cause of labor-management agreements or
passage or where they could not be secured company rules), this assistance must be pro-
or restrained. An entity’s vehicle is not re- vided. This rule overrides any requirements
quired to pick up a wheelchair user when the to the contrary.
securement locations are full, just as the ve- Wheelchair users, especially those using
hicle may pass by other passengers waiting electric wheelchairs, often have a preference
at the stop if the bus is full. for entering a lift platform and vehicle in a
The entity may require that wheelchair particular direction (e.g., backing on or
users make use of securement systems for going on frontwards). Except where the only
their mobility devices. The entity, in other way of successfully maneuvering a device
words, can require wheelchair users to onto a vehicle or into its securement area or
‘‘buckle up’’ their mobility devices. The en- an overriding safety concern (i.e., a direct
tity is required, on a vehicle meeting part 38 threat) requires one way of doing this or an-
standards, to use the securement system to other, the transit provider should respect the
secure wheelchairs as provided in that part. passenger’s preference. We note that most
On other vehicles (e.g., existing vehicles with electric wheelchairs are usually not equipped
securement systems which do not comply with rearview mirrors, and that many per-
with part 38 standards), the entity must pro- sons who use them are not able to rotate
vide and use a securement system to ensure their heads sufficiently to see behind. People
that the mobility device remains within the using canes or walkers and other standees
securement area. This latter requirement is with disabilities who do not use wheelchairs
a mandate to use best efforts to restrain or but have difficulty using steps (e.g., an elder-
confine the wheelchair to the securement ly person who can walk on a level surface
area. The entity does the best it can, given without use of a mobility aid but cannot
its securement technology and the nature of raise his or her legs sufficiently to climb bus
the wheelchair. The Department encourages steps) must also be permitted to use the lift,
entities with relatively less adequate secure- on request.

ment systems on their vehicles, where fea- A lift conforming to Access Board require-
sible, to retrofit the vehicles with better se- ments has a platform measuring at least 30″
485
× 48″, with a design load of at least 600 heard without a P.A. system, it is not nec-
pounds (i.e., capable of lifting a wheelchair/ essary to use the system.
occupant combination of up to 600 pounds). Announcements also must be made at
Working parts upon which the lift depends major intersections or destination points.
for support of the load, such as cables, pul- The rule does not define what major inter-
leys, and shafts, must have a safety factor of sections or destination points are. This is a
at least six times the design load; non- judgmental matter best left to the local
working parts such as the platform, frame, planning process. In addition, the entity
and attachment hardware, which would not must make announcements at sufficient in-
be expected to wear, must have a safety fac- tervals along a route to orient a visually im-
tor of at least three times the design load. paired passenger to his or her location. The
If a transportation provider has a vehicle other required announcements may serve
and equipment that meets or exceeds stand- this function in many instances, but if there
ards based on Access Board guidelines, and is a long distance between other announce-
the vehicle and equipment can in fact safely ments, fill-in orientation announcements
accommodate a given wheelchair, then it is would be called for. The entity must an-
not appropriate, under disability non- nounce any stop requested by a passenger
discrimination law, for the transportation with a disability, even if it does not meet
provider to refuse to transport the device any of the other criteria for announcement.
and its user. Transportation providers must When vehicles from more than one route
carry a wheelchair and its user, as long as serve a given stop or station, the entity must
the lift can accommodate the size and weight provide a means to assist an individual with
of the wheelchair and its user and there is a visual impairment or other disability in
space for the wheelchair on the vehicle. How- determining which is the proper vehicle to
ever, if in fact a lift or vehicle is unable to enter. Some entities have used external
accommodate the wheelchair and its user, speakers. FTA is undertaking a study to de-
the transportation provider is not required termine what is the best available tech-
to carry it. nology in this area. Some transit properties
For example, suppose that a bus or para- have used colored mitts, or numbered cards,
transit vehicle lift will safely accommodate to allow passengers to inform drivers of what
an 800-pound wheelchair/passenger combina- route they wanted to use. The idea is to pre-
tion, but not a combination exceeding 800 vent, at a stop where vehicles from a number
pounds (i.e., a design load of 800 lbs.). The lift of routes arrive, a person with a visual im-
is one that exceeds the part 38 design stand- pairment from having to ask every driver
ard, which requires lifts to be able to accom- whether the bus is the right one. The rule
modate a 600-pound wheelchair/passenger does not prescribe what means is to be used,
combination. The transportation provider only that some effective means be provided.
could limit use of that lift to a combination Service animals shall always be permitted
of 800 pounds or less. Likewise, if a wheel- to accompany their users in any private or
chair or its attachments extends beyond the public transportation vehicle or facility. One
30 × 48 inch footprint found in part 38’s de- of the most common misunderstandings
sign standards but fits onto the lift and into about service animals is that they are lim-
the wheelchair securement area of the vehi- ited to being guide dogs for persons with vis-
cle, the transportation provider would have ual impairments. Dogs are trained to assist
to accommodate the wheelchair. However, if people with a wide variety of disabilities, in-
such a wheelchair was of a size that would cluding individuals with hearing and mobil-
block an aisle and interfere with the safe ity impairments. Other animals (e.g., mon-
evacuation of passengers in an emergency, keys) are sometimes used as service animals
the operator could deny carriage of that as well. In any of these situations, the entity
wheelchair based on a legitimate safety re- must permit the service animal to accom-
quirement. pany its user.
Part 38 requires a variety of accessibility
Section 37.167 Other Service Requirements equipment. This section requires that the en-
The requirements in this section apply to tity use the equipment it has. For example,
both public and private entities. it would be contrary to this provision for a
On fixed route systems, the entity must transit authority to bolt its bus lifts shut be-
announce stops. These stops include transfer cause transit authority had difficulty main-
points with other fixed routes. This means taining the lifts. It does little good to have
that any time a vehicle is to stop where a a public address system on a vehicle if the
passenger can get off and transfer to another operator does not use it to make announce-
bus or rail line (or to another form of trans- ments (except, as noted above, in the situa-
portation, such as commuter rail or ferry), tion where the driver can make himself or
the stop would be announced. The announce- herself heard without recourse to amplifi-
ment can be made personally by the vehicle cation.)
operator or can be made by a recording sys- Entities must make communications and
tem. If the vehicle is small enough so that information available, using accessible for-
the operator can make himself or herself mats and technology (e.g., Braille, large
486
print, TDDs) to obtain information about boarding assistance devices at this time.
transportation services. Someone cannot Each operator may decide what mode of
adequately use the bus system if schedule boarding assistance is appropriate for its op-
and route information is not available in a eration. We agree with the discussion in the
form he or she can use. If there is only one DOJ Title II rule’s preamble that carrying is
phone line on which ADA paratransit eligible a disfavored method of providing assistance
individuals can reserve trips, and the line is to an individual with a disability. However,
chronically busy, individuals cannot sched- since accessible private OTRBs cannot be re-
ule service. Such obstacles to the use of quired by this rule, there may be times when
transportation service are contrary to this carrying is the only available means of pro-
section. (The latter could, in some cir- viding access to an OTRB, if the entity does
cumstances, be viewed as a capacity con- not exercise its discretion to provide an al-
straint.)
ternative means. It is required by the rule
It is inconsistent with this section for a
that any employee who provides boarding as-
transit provider to refuse to let a passenger
sistance—above all, who may carry or other-
use a lift at any designated stop, unless the
lift is physically unable to deploy or the lift wise directly physically assist a passenger—
would be damaged if it did deploy (see dis- must be trained to provide this assistance
cussion under § 37.123). In addition, if a tem- appropriately and safely.
porary situation at the stop (e.g., construc- The baggage priority provision for wheel-
tion, an accident, a landslide) made the stop chairs and other assistive devices involves a
unsafe for anyone to use, the provider could similar procedure to that established in the
decline to operate the lift there (just as it re- Department’s Air Carrier Access Act rule (14
fused to open the door for other passengers CFR part 382). In brief, it provides that, at
at the same point). The provider could not, any given stop, a person with a wheelchair or
however, declare a stop ‘‘off limits’’ to per- other assistive device would have the device
sons with disabilities that is used for other loaded before other items at this stop. An in-
persons. If the transit authority has con- dividual traveling with a wheelchair is not
cerns about barriers or safety hazards that similarly situated to a person traveling with
peculiarly affect individuals with disabilities luggage. For the wheelchair user, the wheel-
that would use the stop, it should consider chair is an essential mobility device, with-
making efforts to move the stop. out which travel is impossible. The rationale
Under DOT hazardous materials rules, a of this provision is that, while no one wants
passenger may bring a portable medical oxy- his or her items left behind, carrying the
gen supply on board a vehicle. Since the haz- wheelchair is more important to its user
ardous materials rules permit this, transit than ordinary luggage to a traveler. If it
providers cannot prohibit it. For further incomes to an either/or choice (the wheelchair
formation on hazardous materials rules, as user’s luggage would not have any priority
they may affect transportation of assistive
over other luggage, however). There would be
devices, entities may contact the Depart-
no requirement, under this provision, for
ment’s Research and Special Programs Ad-
‘‘bumping’’ baggage already on the bus from
ministration, Office of Hazardous Materials
previous stops in order to make room for the
Transportation (202–366–0656).
One concern that has been expressed is wheelchair.
that transportation systems (particularly The entity could require advance notice
some rail systems) may make it difficult for from a passenger in only one circumstance.
persons with disabilities to board or dis- If a passenger needed boarding assistance,
embark from vehicles by very rapidly closing the entity could require up to 48 hours’ ad-
doors on the vehicles before individuals with vance notice for the purpose of providing
disabilities (who may move more slowly needed assistance. While advance notice re-
through crowds in the vehicle or platform quirements are generally undesirable, this
than other persons) have a chance to get on appears to be a case in which a needed ac-
or off the vehicle. Doing so is contrary to the commodation may be able to be provided
rule; operators must make appropriate provi- successfully only if the transportation pro-
sion to give individuals with disabilities ade- vider knows in advance that some extra
quate time to board or disembark. staffing is needed to accomplish it. While the
primary need for advance notice appears to
Section 37.169 Interim Requirements for Over- be in the situation of an unstaffed station,
the-Road Bus Service Operated by Private En- there could be other situations in which ad-
tities vance notice was needed in order to ensure
Private over-the-road bus (OTRB) service that the accommodation could be made. En-
is, first of all, subject to all the other private tities should not ask for advance notice in
entity requirements of the rule. The require- all cases, but just in those cases in which it
ments of this section are in addition to the is really needed for this purpose. Even if ad-
other applicable provisions. vance notice is not provided, the entity has
Boarding assistance is required. The De- the obligation to provide boarding assistance
partment cannot require any particular if it can be provided with available staff.
487
Section 37.171 Equivalency Requirement for dividuals with disabilities, does not meet the
Demand Responsive Service Operated by Pri- standard of being trained to proficiency.
vate Entities Not Primarily in the Business of Third, training must be appropriate to the
Transporting People duties of each employee. A paratransit dis-
This provision is a service requirement patcher probably must know how to use a
closely related to the private entity require- TDD and enough about various disabilities
ments for §§ 37.101–37.105 of this part. Entities to know what sort of vehicle to dispatch. A
in this category are always required to pro- bus driver must know how to operate lifts
vide equivalent service, regardless of what and securement devices properly. A me-
they are doing with respect to the acquisi- chanic who works on lifts must know how to
tion of vehicles. The effect of this provision maintain them. Cross-training, while useful
may be to require some entities to arrange, in some instances, is not required, so long as
either through acquiring their own acces- each employee is trained to proficiency in
sible vehicles or coordinating with other pro- what he or she does with respect to service
viders, to have accessible vehicles available to individuals with disabilities.
to meet the equivalency standards of § 37.105 Fourth, the training requirement goes
or otherwise to comply with those standards. both to technical tasks and human relations.
Employees obviously need to know how to
Section 37.173 Training
run equipment the right way. If an employee
A well-trained workforce is essential in en- will be assisting wheelchair users in trans-
suring that the accessibility-related equip- ferring from a wheelchair to a vehicle seat,
ment and accommodations required by the the employee needs training in how to do
ADA actually result in the delivery of good this safely. But every public contact em-
transportation service to individuals with ployee also has to understand the necessity
disabilities. The utility of training was rec- of treating individuals with disabilities cour-
ognized by Congress as well. (See S. Rept. teously and respectfully, and the details of
100–116 at 48.) At the same time, we believe what that involves.
that training should be conducted in an effi- One of the best sources of information on
cient and effective manner, with appropriate
how best to train personnel to interact ap-
flexibility allowed to the organizations that
propriately with individuals with disabilities
must carry it out. Each transportation pro-
vider is to design a training program which is the disability community itself. Con-
suits the needs of its particular operation. sequently, the Department urges entities to
While we are confident of this approach, we consult with disability organizations con-
are mindful that the apparent lack of train- cerning how to train their personnel. Involv-
ing has been a source of complaint to FTA ing these groups in the process of estab-
and transit providers. Good training is dif- lishing training programs, in addition to pro-
ficult and it is essential. viding useful information, should help to es-
Several points of this section deserve em- tablish or improve working relationships
phasis. First, the requirements for training among transit providers and disability
apply to private as well as to public pro- groups that, necessarily, will be of long dura-
viders, of demand responsive as well as of tion. We note that several transit providers
fixed route service. Training is just as nec- use persons with disabilities to provide the
essary for the driver of a taxicab, a hotel actual training. Others have reported that
shuttle, or a tour bus as it is for a driver in role playing is an effective method to instill
an FTA-funded city bus system. an appreciation of the particular perspective
Second, training must be to proficiency. of one traveling with a disability.
The Department is not requiring a specific Finally, one of the important points in
course of training or the submission of a training concerns differences among individ-
training plan for DOT approval. However, uals with disabilities. All individuals with
every employee of a transportation provider disabilities, of course, are not alike. The ap-
who is involved with service to persons with propriate ways one deals with persons with
disabilities must have been trained so that
various kinds of disabilities (e.g., mobility,
he or she knows what needs to be done to
vision, hearing, or mental impairments) are
provide the service in the right way. When it
comes to providing service to individuals likely to differ and, while no one expects bus
with disabilities, ignorance is no excuse for drivers to be trained as disability specialists,
failure. recognizing relevant differences and respond-
While there is no specific requirement for ing to them appropriately is extremely sig-
recurrent or refresher training, there is an nificant. Public entities who contract with
obligation to ensure that, at any given time, private entities to have service provided—
employees are trained to proficiency. An em- above all, complementary paratransit—are
responsible for ensuring that contractor per-
ployee who has forgotten what he was told in

past training sessions, so that he or she does sonnel receive the appropriate training.
not know what needs to be done to serve in-
488
Appendix A to Part 37—Standards for Accessible the distance which wheelchair users and
Transportation Facilities other persons who cannot negotiate steps
may have to travel compared to the general
Sections 504(a) and (b) of the Americans
public.’’ This concept, in our view, is im-
with Disabilities Act (ADA) require the Ac-
plicit in the language of § 206.3. However, we
cess Board to adopt accessibility guidelines;
believe it is useful to make explicit the con-
sections 204(c) and 306(c) of the ADA require
cept that, in transportation facilities such as
the Department of Transportation to adopt
rail stations, important facility elements are
regulatory standards ‘‘consistent with the
placed so as to minimize the distance per-
minimum guidelines and requirements’’
sons with disabilities must travel to use
issued by the Access Board. In the original
them. This requirement is intended to affect
1991 publication of part 37, the Department
decisions about where to locate entrances,
complied with this requirement by reproduc-
boarding locations (e.g., where a mini-high
ing the Access Board’s Americans with Dis-
platform is used for boarding), and other key
abilities Act Accessibility Guidelines
elements of a facility.
(ADAAG) in their entirety as Appendix A.
The Access Board revised ADAAG in July Section 406.8
2004. ADAAG, including technical amend-
ments issued in July 2005, is codified in Ap- To maintain the status quo with respect to
pendices B and D to 36 CFR part 1191. In detectable warnings in pedestrian facilities,
order to avoid duplication of material that the Department is adding a provision (not
the Access Board has already included in the found in the current version of the new
CFR, and which is now readily available on ADAAG) requiring curb ramps to have de-
the Internet, the Department has adopted tectable warnings.
ADAAG by cross-reference in part 37, rather
Section 810.2.2
than reproducing the lengthy Access Board
publication. However, there are certain pro- The Department recognizes that there will
visions of ADAAG that the Department is be some situations in which the full dimen-
modifying for clarity or to preserve require- sions of a bus boarding and alighting area
ments that have been in effect under the ex- complying with the § 810.2.2 may not be able
isting standards. Under the ADA, the Depart- to be achieved (e.g., there is less than 96
ment, in adopting standards, has the discre- inches of perpendicular space available from
tion to depart from the language of ADAAG the curb or roadway edge, because of build-
as long as the Department’s standards re- ings or terrain features). The Department is
main consistent with the Access Board’s adding language from former § 37.9 (c) of this
minimum guidelines. In addition, this appen- part, which provides that ‘‘Public entities
dix provides additional guidance concerning shall ensure the construction of bus boarding
some sections of the DOT standards as they and alighting areas comply with 810.2.2, to
apply to transportation facilities. the extent the construction specifications
are within their control.’’ Where it is not
Section 201.1
feasible to fully comply with § 810.2.2, the De-
The basic scoping requirement requires all partment expects compliance to the greatest
areas of newly designed and newly con- extent feasible.
structed buildings and facilities to be acces- We note that there may be some instances
sible. Former § 4.1.1(5) provided a ‘‘structural in which it will be necessary to make oper-
impracticability’’ exception to the require- ational adjustments where sufficient clear-
ments for new buildings and facilities. The ance is not available to permit the deploy-
Access Board deleted this exception to avoid ment of lifts or ramps on vehicles. For exam-
duplication with an existing requirement to ple, a bus driver could position the bus at a
the same effect in Department of Justice nearby point—even if not the precise loca-
regulations (see 28 CFR § 36.401(c)). For con- tion of the designated stop—so that a pas-
sistency with the approach taken by the Ac- senger needing a lift or ramp to get on or off
cess Board and Department of Justice, and the bus can do so. To avoid the need for such
to ensure consistency between facilities sub- operational adjustments, it is important to
ject to Titles II and III of the ADA under place bus shelters, signs, etc. so that they do
part 37, the Department has added the lan- not intrude into the required clearances.
guage of the Department of Justice regula-
tion to § 37.41 of this part. Section 810.5.3
This section concerns coordination be-
Section 206.3
tween rail platforms and rail vehicles. The
This section concerns the location of ac- Department is adding language from the
cessible paths. The Department is retaining former § 10.3.1 (9) (Exception 2), which pro-
language from former § 10.3.1(1), which provides that ‘‘In light rail, commuter rail, and
vides that ‘‘Elements such as ramps, ele- intercity rail systems where it is not oper-
vators, or other circulation devices, fare ationally or structurally feasible to meet the
vending or other ticketing areas, and fare horizontal gap or vertical difference require-
collection areas shall be placed to minimize ments, mini-high platforms, car-borne or
489
platform-mounted lifts, ramps or bridge level platforms are prohibited or that low-
plates or similarly manually deployed de- level platforms are the only design con-
vices, meeting the requirements of 49 CFR sistent with the rules. It simply means that
Part 38 shall be permitted.’’ where low-level platforms are otherwise per-
In September 2005, the Department issued mitted, such platforms must be at least 8
guidance concerning the relationship of its inches above the top of rail, except where ve-
ADA and 504 rules in the context of rail plat- hicles are boarded from the street or a side-
form accessibility This guidance emphasized walk.
that access to all cars of a train is signifi-
cant because, if passengers with disabilities [56 FR 45621, Sept. 6, 1991, as amended at 61
are unable to enter all cars from the plat- FR 25416, May 21, 1996; 71 FR 63266, Oct. 30,
form, the passengers will have access only to 2006; 76 FR 57936, Sept. 19, 2011; 79 FR 21406,
segregated service. This would be incon- Apr. 16, 2014]
sistent with the nondiscrimination mandate
of the ADA. It would also, in the case of Fed- APPENDIX E TO PART 37—REASONABLE
eral Transit Administration (FTA) and Fed- MODIFICATION REQUESTS
eral Railroad Administration (FRA)-assisted
projects (including Amtrak), be inconsistent A. This appendix explains the Depart-
with the requirement of the Department’s ment’s interpretation of §§ 37.5(i) and 37.169.
section 504 regulation (49 CFR § 27.7), which It is intended to be used as the official posi-
requires service in the most integrated set- tion of the Department concerning the
ting reasonably achievable. This guidance meaning and implementation of these provi-
states the Department’s views of the mean- sions. The Department also issues guidance
ing of its existing rules, and the Department by other means, as provided in § 37.15. The
will continue to use this guidance in apply- Department also may update this appendix
ing the provisions of this rule. periodically, provided in response to inquir-
The Department notes that a related sec- ies about specific situations that are of gen-
tion of 49 CFR part 38 has been the source of eral relevance or interest.
some misunderstanding. Section 38.71(b)(2) B. The Department’s ADA regulations con-
provides that ‘‘Vehicles designed for, and op- tain numerous requirements concerning
erated on, pedestrian malls, city streets, or fixed route, complementary paratransit, and
other areas where level-entry boarding is not other types of transportation service. Trans-
practicable shall provide wayside or car- portation entities necessarily formulate
borne lifts, mini-high platforms, or other policies and practices to meet these require-
means of access in compliance with § 38.83 (b) ments (e.g., providing fixed route bus service
or (c) of this part.’’ The Department has re- that people with disabilities can use to move
ceived some suggestions that this provision among stops on the system, providing com-
should be interpreted to mean that, if there plementary paratransit service that gets eli-
is any portion of a system in which level- gible riders from their point of origin to
entry boarding is not practicable, then the their point of destination). There may be
entire system can use some method other certain situations, however, in which the
than level-entry boarding. Such an interpre- otherwise reasonable policies and practices
tation is incorrect. The authority to use al- of entities do not suffice to achieve the regu-
ternatives to level-entry boarding pertains lation’s objectives. Implementing a fixed
only to those portions of a system in which route bus policy in the normal way may not
rail vehicles are ‘‘operated on’’ an area allow a passenger with a disability to access
where level-entry boarding is not prac- and use the system at a particular location.
ticable. Implementing a paratransit policy in the
For example, suppose a light rail system’s usual way may not allow a rider to get from
first three stops are on a pedestrian/transit his or her origin to his or her destination. In
mall where it is infeasible to provide level- these situations, subject to the limitations
entry boarding. The transit system could use discussed below, the transportation provider
car-borne lifts, mini-high platforms, etc. to must make reasonable modifications of its
provide access at those three stops. The sys- service in order to comply with the under-
tem’s next ten stops are part of a right-of- lying requirements of the rule. These under-
way in which level-entry boarding is prac- lying provisions tell entities the end they
ticable. In such a case, level-entry boarding must achieve; the reasonable modification
would have to be provided at those ten stops. provision tells entities how to achieve that
There is nothing inappropriate about the end in situations in which normal policies
same system having different means of and practices do not succeed in doing so.
boarding in different locations, in such a C. As noted above, the responsibility of en-
case. tities to make requested reasonable modi-
We also caution against a potential mis- fications is not without some limitations.
understanding of the sentence in § 810.5.3 There are four classes of situations in which
that provides that ‘‘Low-level platforms a request may legitimately be denied. The
shall be 8 inches minimum (205 mm) above first is where granting the request would
top of rail.’’ This does not mean that high- fundamentally alter the entity’s services,
490
programs, or activities. The second is where parking lot, mobile home community, busi-
granting the request would create a direct ness or government facility where vehicle
threat to the health or safety of others. The access requires authorized passage through a
third is where without the requested modi- security barrier). Even if the paratransit op-
fication, the individual with a disability is erator does not generally have a policy of
able to fully use the entity’s services, pro- picking up passengers on such private prop-
grams, or activities for their intended pur- erty, the paratransit operator should make
pose. The fourth, which applies only to re- every reasonable effort to gain access to
cipients of Federal financial assistance, is such an area (e.g., work with the passenger
where granting the request would cause an to get the permission of the property owner
undue financial and administrative burden. to permit access for the paratransit vehicle).
In the examples that follow, these limita- The paratransit operator is not required to
tions are taken into account. violate the law or lawful access restrictions
D. The examples included in this appendix to meet the passenger’s requests. A public or
are neither exhaustive nor exclusive. Trans- private entity that unreasonably denies ac-
portation entities may need to make deter- cess to a paratransit vehicle may be subject
minations about requests for reasonable to a complaint to the U.S. Department of
modification that are not described in this Justice or U.S. Department of Housing and
appendix. Importantly, reasonable modifica- Urban Development for discriminating
tion applies to an entities’ own policies and against services for persons with disabilities.
practices, and not regulatory requirements 4. Obstructions. For fixed route services, a
contained in 49 CFR parts 27, 37, 38, and 39, passenger’s request for a driver to position
such as complementary paratransit service the vehicle to avoid obstructions to the pas-
going beyond 3⁄4 mile of the fixed route, pro- senger’s ability to enter or leave the vehicle
viding same day complementary paratransit at a designated stop location, such as parked
service, etc. cars, snow banks, and construction, should
be granted so long as positioning the vehicle
EXAMPLES to avoid the obstruction does not pose a di-
1. Snow and Ice. Except in extreme condi- rect threat. To be granted, such a request
tions that rise to the level of a direct threat should result in the vehicle stopping in rea-
to the driver or others, a passenger’s request sonably close proximity to the designated
for a paratransit driver to walk over a path- stop location. Transportation entities are
way that has not been fully cleared of snow not required to pick up passengers with dis-
and ice should be granted so that the driver abilities at nondesignated locations. Fixed
can help the passenger with a disability route operators would not have to establish
navigate the pathway. For example, ambula- flag stop or route-deviation policies, as these
tory blind passengers often have difficulty in would be fundamental alterations to a fixed
icy conditions, and allowing the passenger to route system rather than reasonable modi-
take the driver’s arm will increase both the fications of a system. Likewise, subject to
speed and safety of the passenger’s walk the limitations discussed in the introduction
from the door to the vehicle. Likewise, if to this appendix, paratransit operators
snow or icy conditions at a bus stop make it should be flexible in establishing pick up and
difficult or impossible for a fixed route pas- drop off points to avoid obstructions.
senger with a disability to get to a lift, or for 5. Fare Handling. A passenger’s request for
the lift to deploy, the driver should move the transit personnel (e.g., the driver, station at-
bus to a cleared area for boarding, if such is tendant) to handle the fare media when the
available within reasonable proximity to the passenger with a disability cannot pay the
stop (see Example 4 below). fare by the generally established means
2. Pick Up and Drop Off Locations with Mul- should be granted on fixed route or para-
tiple Entrances. A paratransit rider’s request transit service (e.g., in a situation where a
to be picked up at home, but not at the front bus passenger cannot reach or insert a fare
door of his or her home, should be granted, into the farebox). Transit personnel are not
as long as the requested pick-up location required to reach into pockets or backpacks
does not pose a direct threat. Similarly, in in order to extract the fare media.
the case of frequently visited public places 6. Eating and Drinking. If a passenger with
with multiple entrances (e.g., shopping diabetes or another medical condition re-
malls, employment centers, schools, hos- quests to eat or drink aboard a vehicle or in
pitals, airports), the paratransit operator a transit facility in order to avoid adverse
should pick up and drop off the passenger at health consequences, the request should be
the entrance requested by the passenger, granted, even if the transportation provider
rather than meet them in a location that has has a policy that prohibits eating or drink-
been predetermined by the transportation ing. For example, a person with diabetes
agency, again assuming that doing so does may need to consume a small amount of or-
not involve a direct threat. ange juice in a closed container or a candy
3. Private Property. Paratransit passengers bar in order to maintain blood sugar levels.
may sometimes seek to be picked up on pri- 7. Medicine. A passenger’s request to take
vate property (e.g., in a gated community or medication while aboard a fixed route or
491
paratransit vehicle or in a transit facility 13. Intermediate Stops. The Department
should be granted. For example, transit views granting a paratransit passenger’s re-
agencies should modify their policies to quest for a driver to make an intermediate
allow individuals to administer insulin injec- stop, where the driver would be required to
tions and conduct finger stick blood glucose wait, as optional. For example, a passenger
testing. Transit staff need not provide med- with a disability arranges to be picked up at
ical assistance, however, as this would be a a medical facility and dropped off at home.
fundamental alteration of their function. On the way, the passenger with a disability
8. Boarding Separately From Wheelchair. A wishes to stop by a pharmacy and requests
wheelchair user’s request to board a fixed that the driver park outside of the phar-
route or paratransit vehicle separately from macy, wait for the passenger to return, and
his or her device when the occupied weight of then continue the ride home. While this can
the device exceeds the design load of the ve- be a very useful service to the rider, and in
hicle lift should generally be granted. (Note, some cases can save the provider’s time and
however, that under § 37.165(b), entities are money (by scheduling and providing a sepa-
required to accommodate device/user loads rate trip to and from the drug store), such a
and dimensions that exceed the former stop in the context of a shared ride system is
‘‘common wheelchair’’ standard, as long as not required. Since paratransit is, by its na-
the vehicle and lift will accommodate them.) ture, a shared ride system, requests that
9. Dedicated vehicles or special equipment in a could disrupt schedules and inconvenience
vehicle. A paratransit passenger’s request for other passengers could rise to the level of a
special equipment (e.g., the installation of fundamental alteration.
specific hand rails or a front seat in a vehicle 14. Payment. A passenger’s request for a
for the passenger to avoid nausea or back fixed route or paratransit driver to provide
pain) can be denied so long as the requested the transit service when the passenger with
equipment is not required by the Americans a disability cannot or refuses to pay the fare
with Disabilities Act or the Department’s may be denied. If the transportation agency
rules. Likewise, a request for a dedicated ve- requires payment to ride, then to provide a
hicle (e.g., to avoid residual chemical odors) free service would constitute a fundamental
or a specific type or appearance of vehicle alteration of the entity’s service.
(e.g., a sedan rather than a van, in order to 15. Caring for Service Animals. A paratransit
provide more comfortable service) can be de- or fixed route passenger’s request that the
nied. In all of these cases, the Department driver take charge of a service animal may
views meeting the request as involving a fun-
be denied. Caring for a service animal is the
damental alteration of the provider’s serv-
responsibility of the passenger or a PCA.
ice.
16. Opening Building Doors. For paratransit
10. Exclusive or Reduced Capacity Paratransit
services, a passenger’s request for the driver
Trips. A passenger’s request for an exclusive
to open an exterior entry door to a building
paratransit trip may be denied as a funda-
to provide boarding and/or alighting assist-
mental alteration of the entity’s services.
ance to a passenger with a disability should
Paratransit is by nature a shared-ride serv-
generally be granted as long as providing
ice.
11. Outside of the Service Area or Operating this assistance would not pose a direct
Hours. A person’s request for fixed route or threat, or leave the vehicle unattended or
paratransit service may be denied when hon- out of visual observation for a lengthy period
oring the request would require the transpor- of time.1 Note that a request for ‘‘door-
tation provider to travel outside of its serv- through-door’’ service (i.e., assisting the pas-
ice area or to operate outside of its operating senger past the door to the building) gen-
hours. This request would not be a reason- erally would not need to be granted because
able modification because it would con- it could rise to the level of a fundamental al-
stitute a fundamental alteration of the enti- teration.
ty’s service. 17. Exposing Vehicle to Hazards. If the pas-
12. Personal Care Attendant (PCA). While senger requests that a vehicle follow a path
PCAs may travel with a passenger with a
disability, transportation agencies are not 1 Please see guidance issued on this topic.
required to provide a personal care attendant U.S. Department of Transportation, Origin-

or personal care attendant services to meet to-Destination Service, September 1, 2005,
the needs of passengers with disabilities on available at http://www.fta.dot.gov/
paratransit or fixed route trips. For example, 12325l3891.html (explaining that, ‘‘the De-
a passenger’s request for a transportation partment does not view transit providers’ ob-
entity’s driver to remain with the passenger ligations as extending to the provision of
who, due to his or her disability, cannot be personal services. . . . Nor would drivers, for
left alone without an attendant upon reach- lengthy periods of time, have to leave their
ing his or her destination may be denied. It vehicles unattended or lose the ability to
would be a fundamental alteration of the keep their vehicles under visual observation,
driver’s function to provide PCA services of or take actions that would be clearly unsafe
this kind. . . .’’).
492
to a pick up or drop off point that would ex- example, in extreme weather (e.g., very
pose the vehicle and its occupants to haz- windy or stormy conditions), a person who is
ards, such as running off the road, getting blind or vision-impaired or a frail elderly
stuck, striking overhead objects, or revers- person may have difficulty safely moving to
ing the vehicle down a narrow alley, the re- and from a building.
quest can be denied as creating a direct 24. Unattended Passengers. Where a pas-
threat. senger’s request for assistance means that
18. Hard-to-Maneuver Stops. A passenger
the driver will need to leave passengers
may request that a paratransit vehicle navi-
gate to a pick-up point to which it is dif- aboard a vehicle unattended, transportation
ficult to maneuver a vehicle. A passenger’s agencies should generally grant the request
request to be picked up in a location that is as long as accommodating the request would
difficult, but not impossible or impracti- not leave the vehicle unattended or out of
cable, to access should generally be granted visual observation for a lengthy period of
as long as picking up the passenger does not time, both of which could involve direct
expose the vehicle to hazards that pose a di- threats to the health or safety of the unat-
rect threat (e.g., it is unsafe for the vehicle tended passengers. It is important to keep in
and its occupants to get to the pick-up point mind that, just as a driver is not required to
without getting stuck or running off the act as a PCA for a passenger making a re-
road). quest for assistance, so a driver is not in-
19. Specific Drivers. A passenger’s request tended to act as a PCA for other passengers
for a specific driver may be denied. Having a in the vehicle, such that he or she must re-
specific driver is not necessary to afford the main in their physical presence at all times.
passenger the service provided by the transit
25. Need for Return Trip Assistance. A pas-
operator.
20. Luggage and Packages. A passenger’s re- senger with a disability may need assistance
quest for a fixed route or paratransit driver for a return trip when he or she did not need
to assist with luggage or packages may be that assistance on the initial trip. For exam-
denied in those instances where it is not the ple, a dialysis patient may have no problem
normal policy or practice of the transpor- waiting at the curb for a ride to go to the di-
tation agency to assist with luggage or pack- alysis center, but may well require assist-
ages. Such assistance is a matter for the pas- ance to the door on his or her return trip be-
senger or PCA, and providing this assistance cause of physical weakness or fatigue. To the
would be a fundamental alteration of the extent that this need is predictable, it should
driver’s function. be handled in advance, either as part of the
21. Request to Avoid Specific Passengers. A eligibility process or the provider’s reserva-
paratransit passenger’s request not to ride tions process. If the need arises unexpect-
with certain passengers may be denied. Para- edly, then it would need to be handled on an
transit is a shared-ride service. As a result, ad hoc basis. The paratransit operator
one passenger may need to share the vehicle
should generally provide such assistance, un-
with people that he or she would rather not.
22. Navigating an Incline, or Around Obsta- less doing so would create a direct threat, or
cles. A paratransit passenger’s request for a leave the vehicle unattended or out of visual
driver to help him or her navigate an incline observation for a lengthy period of time.
(e.g., a driveway or sidewalk) with the pas- 26. Five-Minute Warning or Notification of
senger’s wheeled device should generally be Arrival Calls. A passenger’s request for a tele-
granted. Likewise, assistance in traversing a phone call 5 minutes (or another reasonable
difficult sidewalk (e.g., one where tree roots interval) in advance or at time of vehicle ar-
have made the sidewalk impassible for a rival generally should be granted. As a mat-
wheelchair) should generally be granted, as ter of courtesy, such calls are encouraged as
should assistance around obstacles (e.g., a good customer service model and can pre-
snowdrifts, construction areas) between the vent ‘‘no shows.’’ Oftentimes, these calls can
vehicle and a door to a passenger’s house or be generated through an automated system.
destination should generally be granted. In those situations where automated sys-
These modifications would be granted sub- tems are not available and paratransit driv-
ject, of course, to the proviso that such as- ers continue to rely on hand-held commu-
sistance would not cause a direct threat, or nication devices (e.g., cellular telephones)
leave the vehicle unattended or out of visual
drivers should comply with any State or
observation for a lengthy period of time.
Federal laws related to distracted driving.
23. Extreme Weather Assistance. A pas-
senger’s request to be assisted from his or 27. Hand-Carrying. Except in emergency
her door to a vehicle during extreme weather situations, a passenger’s request for a driver
conditions should generally be granted so to lift the passenger out of his or her mobil-
long as the driver leaving the vehicle to as- ity device should generally be denied because
of the safety, dignity, and privacy issues im-
sist would not pose a direct threat, or leave

the vehicle unattended or out of visual ob- plicated by hand-carrying a passenger. Hand-
servation for a lengthy period of time. For
493
carrying a passenger is also a PCA-type serv- 38.99 Floors, steps and thresholds.
ice which is outside the scope of driver du- 38.101 Lighting.
ties, and hence a fundamental alteration. 38.103 Public information system.
38.105 Priority seating signs.
[80 FR 13261, Mar. 13, 2015, as amended at 80 38.107 Restrooms.
FR 26196, May 7, 2015] 38.109 Between-car barriers.
PART 38—AMERICANS WITH DIS- Subpart F—Intercity Rail Cars and Systems
ABILITIES ACT (ADA) ACCESSI- 38.111 General.
BILITY SPECIFICATIONS FOR 38.113 Doorways.
TRANSPORTATION VEHICLES 38.115 Interior circulation, handrails and
stanchions.
Subpart A—General 38.117 Floors, steps and thresholds.
38.119 Lighting.
Sec. 38.121 Public information system.
38.1 Purpose. 38.123 Restrooms.
38.2 Equivalent facilitation. 38.125 Mobility aid accessibility.
38.3 Definitions. 38.127 Sleeping compartments.
38.4 Miscellaneous instructions.
Subpart G—Over-the-Road Buses and
Subpart B—Buses, Vans and Systems Systems
38.21 General. 38.151 General.
38.23 Mobility aid accessibility. 38.153 Doors, steps and thresholds.
38.25 Doors, steps and thresholds. 38.155 Interior circulation, handrails and
38.27 Priority seating signs. stanchions.
38.29 Interior circulation, handrails and 38.157 Lighting.
stanchions. 38.159 Mobility aid accessibility.
38.31 Lighting. 38.161 Moveable aisle armrests.
38.33 Fare box.
38.35 Public information system. Subpart H—Other Vehicles and Systems
38.37 Stop request.
38.39 Destination and route signs. 38.171 General.
38.173 Automated guideway transit vehicles
Subpart C—Rapid Rail Vehicles and and systems.
38.175 High-speed rail cars, monorails and
Systems systems.
38.51 General. 38.177 Ferries, excursion boats and other
38.53 Doorways. vessels. [Reserved]
38.55 Priority seating signs. 38.179 Trams, and similar vehicles, and sys-
38.57 Interior circulation, handrails and tems.
stanchions. FIGURES TO PART 38
38.59 Floor surfaces. APPENDIX TO PART 38—GUIDANCE MATERIAL
38.61 Public information system.
AUTHORITY: 42 U.S.C. 12101–12213; 49 U.S.C.
38.63 Between-car barriers.
322.
Subpart D—Light Rail Vehicles and Systems SOURCE: 56 FR 45756, Sept. 6, 1991, unless
otherwise noted.
38.71 General.
38.73 Doorways.
38.75 Priority seating signs. Subpart A—General
38.77 Interior circulation, handrails and
stanchions. § 38.1 Purpose.
38.79 Floors, steps and thresholds. This part provides minimum guide-
38.81 Lighting. lines and requirements for accessibility
38.83 Mobility aid accessibility.
38.85 Between-car barriers. standards in part 37 of this title for
38.87 Public information system. transportation vehicles required to be
accessible by the Americans With Dis-
Subpart E—Commuter Rail Cars and abilities Act (ADA) of 1990 (42 U.S.C.
Systems 1201 et seq.).
38.91 General. § 38.2 Equivalent facilitation.
38.93 Doorways.
Departures from particular technical
38.95 Mobility aid accessibility.

38.97 Interior circulation, handrails and and scoping requirements of these
stanchions. guidelines by use of other designs and
494
technologies are permitted where the fitted with lifts, ramps or other board-
alternative designs and technologies ing devices.
used will provide substantially equiva-
lent or greater access to and usability § 38.23 Mobility aid accessibility.
of the vehicle. Departures are to be (a) General. All vehicles covered by
considered on a case-by-case basis this subpart shall provide a level-
under procedures set forth in § 37.7 of change mechanism or boarding device
this title. (e.g., lift or ramp) complying with
§ 38.3 Definitions. paragraph (b) or (c) of this section and
sufficient clearances to permit a wheel-
See § 37.3 of this title. chair or other mobility aid user to
§ 38.4 Miscellaneous instructions. reach a securement location. At least
two securement locations and devices,
(a) Dimensional conventions. Dimen- complying with paragraph (d) of this
sions that are not noted as minimum section, shall be provided on vehicles
or maximum are absolute. in excess of 22 feet in length; at least
(b) Dimensional tolerances. All dimen- one securement location and device,
sions are subject to conventional engi- complying with paragraph (d) of this
neering tolerances for material prop-
section, shall be provided on vehicles 22
erties and field conditions, including
feet in length or less.
normal anticipated wear not exceeding
accepted industry-wide standards and (b) Vehicle lift—(1) Design load. The
practices. design load of the lift shall be at least
(c) Notes. The text of these guidelines 600 pounds. Working parts, such as ca-
does not contain notes or footnotes. bles, pulleys, and shafts, which can be
Additional information, explanations, expected to wear, and upon which the
and advisory materials are located in lift depends for support of the load,
the Appendix. shall have a safety factor of at least
(d) General terminology. (1) Comply six, based on the ultimate strength of
with means meet one or more specifica- the material. Nonworking parts, such
tion of these guidelines. as platform, frame, and attachment
(2) If or if * * * then denotes a speci- hardware which would not be expected
fication that applies only when the to wear, shall have a safety factor of at
conditions described are present. least three, based on the ultimate
(3) May denotes an option or alter- strength of the material.
native. (2) Controls—(i) Requirements. The
(4) Shall denotes a mandatory speci- controls shall be interlocked with the
fication or requirement. vehicle brakes, transmission, or door,
(5) Should denotes an advisory speci- or shall provide other appropriate
fication or recommendation. mechanisms or systems, to ensure that
the vehicle cannot be moved when the
Subpart B—Buses, Vans and lift is not stowed and so the lift cannot
Systems be deployed unless the interlocks or
systems are engaged. The lift shall de-
§ 38.21 General. ploy to all levels (i.e., ground, curb,
(a) New, used or remanufactured and intermediate positions) normally
buses and vans (except over-the-road encountered in the operating environ-
buses covered by subpart G of this ment. Where provided, each control for
part), to be considered accessible by deploying, lowering, raising, and stow-
regulations in part 37 of this title shall ing the lift and lowering the roll-off
comply with the applicable provisions barrier shall be of a momentary con-
of this subpart. tact type requiring continuous manual
(b) If portions of the vehicle are pressure by the operator and shall not
modified in a way that affects or could allow improper lift sequencing when
affect accessibility, each such portion the lift platform is occupied. The con-
shall comply, to the extent practicable, trols shall allow reversal of the lift op-
with the applicable provisions of this eration sequence, such as raising or
subpart. This provision does not re- lowering a platform that is part way
quire that inaccessible buses be retro- down, without allowing an occupied
495
platform to fold or retract into the ing it. The outer barrier of the lift
stowed position. shall automatically raise or close, or a
(ii) Exception. Where the lift is de- supplementary system shall automati-
signed to deploy with its long dimen- cally engage, and remain raised,
sion parallel to the vehicle axis and closed, or engaged at all times that the
which pivots into or out of the vehicle platform is more than 3 inches above
while occupied (i.e., ‘‘rotary lift’’), the the roadway or sidewalk and the plat-
requirements of this paragraph prohib- form is occupied. Alternatively, a bar-
iting the lift from being stowed while rier or system may be raised, lowered,
occupied shall not apply if the stowed opened, closed, engaged, or disengaged
position is within the passenger com- by the lift operator, provided an inter-
partment and the lift is intended to be lock or inherent design feature pre-
stowed while occupied. vents the lift from rising unless the
(3) Emergency operation. The lift shall barrier is raised or closed or the sup-
incorporate an emergency method of plementary system is engaged.
deploying, lowering to ground level (6) Platform surface. The platform sur-
with a lift occupant, and raising and face shall be free of any protrusions
stowing the empty lift if the power to over 1⁄4 inch high and shall be slip re-
the lift fails. No emergency method, sistant. The platform shall have a min-
manual or otherwise, shall be capable imum clear width of 281⁄2 inches at the
of being operated in a manner that platform, a minimum clear width of 30
could be hazardous to the lift occupant inches measured from 2 inches above
or to the operator when operated ac- the platform surface to 30 inches above
cording to manufacturer’s instructions, the platform, and a minimum clear
and shall not permit the platform to be length of 48 inches measured from 2
stowed or folded when occupied, unless inches above the surface of the plat-
the lift is a rotary lift and is intended form to 30 inches above the surface of
to be stowed while occupied. the platform. (See Fig. 1)
(4) Power or equipment failure. Plat- (7) Platform gaps. Any openings be-
forms stowed in a vertical position, and tween the platform surface and the
deployed platforms when occupied, raised barriers shall not exceed 5⁄8 inch
shall have provisions to prevent their in width. When the platform is at vehi-
deploying, falling, or folding any faster cle floor height with the inner barrier
than 12 inches/second or their dropping (if applicable) down or retracted, gaps
of an occupant in the event of a single between the forward lift platform edge
failure of any load carrying compo- and the vehicle floor shall not exceed 1⁄2
nent. inch horizontally and 5⁄8 inch
(5) Platform barriers. The lift platform vertically. Platforms on semi-auto-
shall be equipped with barriers to pre- matic lifts may have a hand hold not
vent any of the wheels of a wheelchair exceeding 11⁄2 inches by 41⁄2 inches lo-
or mobility aid from rolling off the cated between the edge barriers.
platform during its operation. A mov- (8) Platform entrance ramp. The en-
able barrier or inherent design feature trance ramp, or loading-edge barrier
shall prevent a wheelchair or mobility used as a ramp, shall not exceed a slope
aid from rolling off the edge closest to of 1:8, measured on level ground, for a
the vehicle until the platform is in its maximum rise of 3 inches, and the
fully raised position. Each side of the transition from roadway or sidewalk to
lift platform which extends beyond the ramp may be vertical without edge
vehicle in its raised position shall have treatment up to 1⁄4 inch. Thresholds be-
a barrier a minimum 11⁄2 inches high. tween 1⁄4 inch and 1⁄2 inch high shall be
Such barriers shall not interfere with beveled with a slope no greater than
maneuvering into or out of the aisle. 1:2.
The loading-edge barrier (outer bar- (9) Platform deflection. The lift plat-
rier) which functions as a loading ramp form (not including the entrance ramp)
when the lift is at ground level, shall shall not deflect more than 3 degrees
be sufficient when raised or closed, or a (exclusive of vehicle roll or pitch) in
supplementary system shall be pro- any direction between its unloaded po-
vided, to prevent a power wheelchair or sition and its position when loaded
mobility aid from riding over or defeat- with 600 pounds applied through a 26
496
inch by 26 inch test pallet at the cen- (2) Ramp surface. The ramp surface
troid of the platform. shall be continuous and slip resistant;
(10) Platform movement. No part of the shall not have protrusions from the
platform shall move at a rate exceed- surface greater than 1⁄4 inch high; shall
ing 6 inches/second during lowering and have a clear width of 30 inches; and
lifting an occupant, and shall not ex- shall accommodate both four-wheel
ceed 12 inches/second during deploying and three-wheel mobility aids.
or stowing. This requirement does not (3) Ramp threshold. The transition
apply to the deployment or stowage cy- from roadway or sidewalk and the
cles of lifts that are manually deployed transition from vehicle floor to the
or stowed. The maximum platform hor- ramp may be vertical without edge
izontal and vertical acceleration when treatment up to 1⁄4 inch. Changes in
occupied shall be 0.3g. level between 1⁄4 inch and 1⁄2 inch shall
(11) Boarding direction. The lift shall be beveled with a slope no greater than
permit both inboard and outboard fac- 1:2.
ing of wheelchair and mobility aid (4) Ramp barriers. Each side of the
users. ramp shall have barriers at least 2
(12) Use by standees. Lifts shall ac- inches high to prevent mobility aid
commodate persons using walkers, wheels from slipping off.
crutches, canes or braces or who other- (5) Slope. Ramps shall have the least
wise have difficulty using steps. The
slope practicable and shall not exceed
platform may be marked to indicate a
1:4 when deployed to ground level. If
preferred standing position.
the height of the vehicle floor from
(13) Handrails. Platforms on lifts
which the ramp is deployed is 3 inches
shall be equipped with handrails on two
or less above a 6-inch curb, a maximum
sides, which move in tandem with the
slope of 1:4 is permitted; if the height
lift, and which shall be graspable and
of the vehicle floor from which the
provide support to standees throughout
ramp is deployed is 6 inches or less, but
the entire lift operation. Handrails
greater than 3 inches, above a 6-inch
shall have a usable component at least
curb, a maximum slope of 1:6 is per-
8 inches long with the lowest portion a
minimum 30 inches above the platform mitted; if the height of the vehicle
and the highest portion a maximum 38 floor from which the ramp is deployed
inches above the platform. The hand- is 9 inches or less, but greater than 6
rails shall be capable of withstanding a inches, above a 6-inch curb, a max-
force of 100 pounds concentrated at any imum slope of 1:8 is permitted; if the
point on the handrail without perma- height of the vehicle floor from which
nent deformation of the rail or its sup- the ramp is deployed is greater than 9
porting structure. The handrail shall inches above a 6-inch curb, a slope of
have a cross-sectional diameter be- 1:12 shall be achieved. Folding or tele-
tween 11⁄4 inches and 11⁄2 inches or shall scoping ramps are permitted provided
provide an equivalent grasping surface, they meet all structural requirements
and have eased edges with corner radii of this section.
of not less than 1⁄8 inch. Handrails shall (6) Attachment. When in use for board-
be placed to provide a minimum 11⁄2 ing or alighting, the ramp shall be
inches knuckle clearance from the firmly attached to the vehicle so that
nearest adjacent surface. Handrails it is not subject to displacement when
shall not interfere with wheelchair or loading or unloading a heavy power
mobility aid maneuverability when en- mobility aid and that no gap between
tering or leaving the vehicle. vehicle and ramp exceeds 5⁄8 inch.
(c) Vehicle ramp—(1) Design load. (7) Stowage. A compartment, secure-
Ramps 30 inches or longer shall support ment system, or other appropriate
a load of 600 pounds, placed at the cen- method shall be provided to ensure
troid of the ramp distributed over an that stowed ramps, including portable
area of 26 inches by 26 inches, with a ramps stowed in the passenger area, do
safety factor of at least 3 based on the not impinge on a passenger’s wheel-
ultimate strength of the material. chair or mobility aid or pose any haz-
Ramps shorter than 30 inches shall sup- ard to passengers in the event of a sud-
port a load of 300 pounds. den stop or maneuver.
497
(8) Handrails. If provided, handrails mon wheelchairs and mobility aids and
shall allow persons with disabilities to shall either be automatic or easily at-
grasp them from outside the vehicle tached by a person familiar with the
while starting to board, and to con- system and mobility aid and having av-
tinue to use them throughout the erage dexterity.
boarding process, and shall have the (4) Orientation. In vehicles in excess
top between 30 inches and 38 inches of 22 feet in length, at least one secure-
above the ramp surface. The handrails ment device or system required by
shall be capable of withstanding a force paragraph (a) of this section shall se-
of 100 pounds concentrated at any point cure the wheelchair or mobility aid
on the handrail without permanent de- facing toward the front of the vehicle.
formation of the rail or its supporting Additional securement devices or sys-
structure. The handrail shall have a tems shall secure the wheelchair or
cross-sectional diameter between 11⁄4 mobility aid facing forward, or rear-
inches and 11⁄2 inches or shall provide ward with a padded barrier, extending
an equivalent grasping surface, and from a height of 38 inches from the ve-
have eased edges with corner radii of hicle floor to a height of 56 inches from
not less than 1⁄8 inch. Handrails shall the vehicle floor with a width of 18
not interfere with wheelchair or mobil- inches, laterally centered immediately
ity aid maneuverability when entering in back of the seated individual. In ve-
or leaving the vehicle. hicles 22 feet in length or less, the re-
(d) Securement devices—(1) Design load. quired securement device may secure
Securement systems on vehicles with the wheelchair or mobility aid either
GVWRs of 30,000 pounds or above, and facing toward the front of the vehicle
their attachments to such vehicles, or facing rearward, with a padded bar-
shall restrain a force in the forward rier as described. Additional secure-
longitudinal direction of up to 2,000 ment locations shall be either forward
pounds per securement leg or clamping or rearward facing with a padded bar-
mechanism and a minimum of 4,000 rier. Such barriers need not be solid
pounds for each mobility aid. Secure- provided equivalent protection is af-
ment systems on vehicles with GVWRs forded.
of up to 30,000 pounds, and their attach- (5) Movement. When the wheelchair or
ments to such vehicles, shall restrain a mobility aid is secured in accordance
force in the forward longitudinal direc- with manufacturer’s instructions, the
tion of up to 2,500 pounds per secure- securement system shall limit the
ment leg or clamping mechanism and a movement of an occupied wheelchair or
minimum of 5,000 pounds for each mo- mobility aid to no more than 2 inches
bility aid. in any direction under normal vehicle
(2) Location and size. The securement operating conditions.
system shall be placed as near to the (6) Stowage. When not being used for
accessible entrance as practicable and securement, or when the securement
shall have a clear floor area of 30 area can be used by standees, the se-
inches by 48 inches. Such space shall curement system shall not interfere
adjoin, and may overlap, an access with passenger movement, shall not
path. Not more than 6 inches of the represent any hazardous condition, shall
quired clear floor space may be accom- be reasonably protected from van-
modated for footrests under another dalism, and shall be readily accessed
seat provided there is a minimum of 9 when needed for use.
inches from the floor to the lowest part (7) Seat belt and shoulder harness. For
of the seat overhanging the space. Se- each wheelchair or mobility aid secure-
curement areas may have fold-down ment device provided, a passenger seat
seats to accommodate other passengers belt and shoulder harness, complying
when a wheelchair or mobility aid is with all applicable provisions of part
not occupying the area, provided the 571 of this title, shall also be provided
seats, when folded up, do not obstruct for use by wheelchair or mobility aid
the clear floor space required. (See Fig. users. Such seat belts and shoulder
2) harnesses shall not be used in lieu of a
(3) Mobility aids accommodated. The device which secures the wheelchair or
securement system shall secure com- mobility aid itself.
498
§ 38.25 Doors, steps and thresholds. with disabilities to grasp such assists
(a) Slip resistance. All aisles, steps, from outside the vehicle while starting
floor areas where people walk and to board, and to continue using such
floors in securement locations shall assists throughout the boarding and
have slip-resistant surfaces. fare collection process. Handrails shall
(b) Contrast. All step edges, thresh- have a cross-sectional diameter be-
olds and the boarding edge of ramps or tween 11⁄4 inches and 11⁄2 inches or shall
lift platforms shall have a band of provide an equivalent grasping surface,
color(s) running the full width of the and have eased edges with corner radii
step or edge which contrasts from the of not less than 1⁄8 inch. Handrails shall
step tread and riser, or lift or ramp be placed to provide a minimum 11⁄2
surface, either light-on-dark or dark- inches knuckle clearance from the
on-light. nearest adjacent surface. Where on-
(c) Door height. For vehicles in excess board fare collection devices are used
of 22 feet in length, the overhead clear- on vehicles in excess of 22 feet in
ance between the top of the door open- length, a horizontal passenger assist
ing and the raised lift platform, or shall be located across the front of the
highest point of a ramp, shall be a min- vehicle and shall prevent passengers
imum of 68 inches. For vehicles of 22 from sustaining injuries on the fare
feet in length or less, the overhead collection device or windshield in the
clearance between the top of the door event of a sudden deceleration. With-
opening and the raised lift platform, or out restricting the vestibule space, the
highest point of a ramp, shall be a min- assist shall provide support for a board-
imum of 56 inches. ing passenger from the front door
through the boarding procedure. Pas-
§ 38.27 Priority seating signs. sengers shall be able to lean against
(a) Each vehicle shall contain sign(s) the assist for security while paying
which indicate that seats in the front fares.
of the vehicle are priority seats for per- (c) For vehicles in excess of 22 feet in
sons with disabilities, and that other length, overhead handrail(s) shall be
passengers should make such seats provided which shall be continuous ex-
available to those who wish to use cept for a gap at the rear doorway.
them. At least one set of forward-fac- (d) Handrails and stanchions shall be
ing seats shall be so designated. sufficient to permit safe boarding, on-
(b) Each securement location shall board circulation, seating and standing
have a sign designating it as such. assistance, and alighting by persons
(c) Characters on signs required by with disabilities.
paragraphs (a) and (b) of this section (e) For vehicles in excess of 22 feet in
shall have a width-to-height ratio be- length with front-door lifts or ramps,
tween 3:5 and 1:1 and a stroke width-to- vertical stanchions immediately be-
height ratio between 1:5 and 1:10, with hind the driver shall either terminate
a minimum character height (using an at the lower edge of the aisle-facing
upper case ‘‘X’’) of 5⁄8 inch, with ‘‘wide’’ seats, if applicable, or be ‘‘dog-legged’’
spacing (generally, the space between so that the floor attachment does not
letters shall be 1⁄16 the height of upper impede or interfere with wheelchair
case letters), and shall contrast with footrests. If the driver seat platform
the background either light-on-dark or must be passed by a wheelchair or mo-
dark-on-light. bility aid user entering the vehicle, the
platform, to the maximum extent prac-
§ 38.29 Interior circulation, handrails ticable, shall not extend into the aisle
and stanchions. or vestibule beyond the wheel housing.
(a) Interior handrails and stanchions (f) For vehicles in excess of 22 feet in
shall permit sufficient turning and ma- length, the minimum interior height
neuvering space for wheelchairs and along the path from the lift to the se-
other mobility aids to reach a secure- curement location shall be 68 inches.
ment location from the lift or ramp. For vehicles of 22 feet in length or less,
(b) Handrails and stanchions shall be the minimum interior height from lift
provided in the entrance to the vehicle to securement location shall be 56

in a configuration which allows persons inches.
499
§ 38.31 Lighting. higher than 48 inches and no lower

than 15 inches above the floor, shall be
(a) Any stepwell or doorway imme-
operable with one hand and shall not
diately adjacent to the driver shall
require tight grasping, pinching, or
have, when the door is open, at least 2
twisting of the wrist. The force re-
foot-candles of illumination measured
quired to activate controls shall be no
on the step tread or lift platform.
greater than 5 lbf (22.2 N).
(b) Other stepwells and doorways, in-
cluding doorways in which lifts or § 38.39 Destination and route signs.
ramps are installed, shall have, at all
times, at least 2 foot-candles of illu- (a) Where destination or route infor-
mination measured on the step tread, mation is displayed on the exterior of a
or lift or ramp, when deployed at the vehicle, each vehicle shall have illumi-
nated signs on the front and boarding
vehicle floor level.
side of the vehicle.
(c) The vehicle doorways, including
(b) Characters on signs required by
doorways in which lifts or ramps are
paragraph (a) of this section shall have
installed, shall have outside light(s)
a width-to-height ratio between 3:5 and
which, when the door is open, provide
1:1 and a stroke width-to-height ratio
at least 1 foot-candle of illumination
between 1:5 and 1:10, with a minimum
on the street surface for a distance 3
character height (using an upper case
feet (915 mm) perpendicular to the bot-
‘‘X’’) of 1 inch for signs on the boarding
tom step tread or lift outer edge. Such
side and a minimum character height
light(s) shall be shielded to protect the of 2 inches for front ‘‘headsigns’’, with
eyes of entering and exiting pas- ‘‘wide’’ spacing (generally, the space
sengers. between letters shall be 1⁄16 the height
[56 FR 45756, Sept. 6, 1991, as amended at 63 of upper case letters), and shall con-
FR 51697, 51702, Sept. 28, 1998] trast with the background, either dark-
on-light or light-on-dark.
§ 38.33 Fare box.
Where provided, the farebox shall be Subpart C—Rapid Rail Vehicles
located as far forward as practicable and Systems
and shall not obstruct traffic in the
vestibule, especially wheelchairs or § 38.51 General.
mobility aids. (a) New, used and remanufactured
rapid rail vehicles, to be considered ac-
§ 38.35 Public information system.
cessible by regulations in part 37 of
(a) Vehicles in excess of 22 feet in this title, shall comply with this sub-
length, used in multiple-stop, fixed- part.
route service, shall be equipped with a (b) If portions of the vehicle are
public address system permitting the modified in a way that affects or could
driver, or recorded or digitized human affect accessibility, each such portion
speech messages, to announce stops shall comply, to the extent practicable,
and provide other passenger informa- with the applicable provisions of this
tion within the vehicle. subpart. This provision does not re-
(b) [Reserved] quire that inaccessible vehicles be ret-
rofitted with lifts, ramps or other
§ 38.37 Stop request. boarding devices.
(a) Where passengers may board or (c) Existing vehicles which are retro-
alight at multiple stops at their op- fitted to comply with the ‘‘one-car-per-
tion, vehicles in excess of 22 feet in train rule’’ of § 37.93 of this title shall
length shall provide controls adjacent comply with §§ 38.55, 38.57(b), 38.59 of
to the securement location for request- this part and shall have, in new and
ing stops and which alerts the driver key stations, at least one door com-
that a mobility aid user wishes to dis- plying with §§ 38.53 (a)(1), (b) and (d) of
embark. Such a system shall provide this part. Removal of seats is not re-
auditory and visual indications that quired. Vehicles previously designed
the request has been made. and manufactured in accordance with
(b) Controls required by paragraph the accessibility requirements of part

(a) of this section shall be mounted no 609 of this title or the Secretary of
500
Transportation regulations imple- (3) Exception. Retrofitted vehicles

menting section 504 of the Rehabilita- shall be coordinated with the platform
tion Act of 1973 that were in effect be- in new and key stations such that the
fore October 7, 1991, and which can be horizontal gap shall be no greater than
entered and used from stations in 4 inches and the height of the vehicle
which they are to be operated, may be floor, under 50% passenger load, shall
used to satisfy the requirements of be within plus or minus 2 inches of the
§ 37.93 of this title. platform height.
§ 38.53 Doorways. § 38.55 Priority seating signs.

(a) Clear width. (1) Passenger door- (a) Each vehicle shall contain sign(s)
ways on vehicle sides shall have clear which indicate that certain seats are
openings at least 32 inches wide when priority seats for persons with disabil-
open. ities, and that other passengers should
(2) If doorways connecting adjoining make such seats available to those who
cars in a multi-car train are provided, wish to use them.
(b) Characters on signs required by
and if such doorway is connected by an
paragraph (a) of this section shall have
aisle with a minimum clear width of 30
a width-to-height ratio between 3:5 and
inches to one or more spaces where
1:1 and a stroke width-to-height ratio
wheelchair or mobility aid users can be
between 1:5 and 1:10, with a minimum
accommodated, then such doorway
character height (using an upper case
shall have a minimum clear opening of
‘‘X’’) of 5⁄8 inch, with ‘‘wide’’ spacing
30 inches to permit wheelchair and mo-
(generally, the space between letters
bility aid users to be evacuated to an
shall be 1⁄16 the height of upper case let-
adjoining vehicle in an emergency.
ters), and shall contrast with the back-
(b) Signage. The International Sym- ground, either light-on-dark or dark-
bol of Accessibility shall be displayed on-light.
on the exterior of accessible vehicles
operating on an accessible rapid rail § 38.57 Interior circulation, handrails
system unless all vehicles are acces- and stanchions.
sible and are not marked by the access (a) Handrails and stanchions shall be
symbol. (See Fig. 6.) provided to assist safe boarding, on-
(c) Signals. Auditory and visual warn- board circulation, seating and standing
ing signals shall be provided to alert assistance, and alighting by persons
passengers of closing doors. with disabilities.
(d) Coordination with boarding plat- (b) Handrails, stanchions, and seats
form—(1) Requirements. Where new vehi- shall allow a route at least 32 inches
cles will operate in new stations, the wide so that at least two wheelchair or
design of vehicles shall be coordinated mobility aid users can enter the vehi-
with the boarding platform design such cle and position the wheelchairs or mo-
that the horizontal gap between each bility aids in areas, each having a min-
vehicle door at rest and the platform imum clear space of 48 inches by 30
shall be no greater than 3 inches and inches, which do not unduly restrict
the height of the vehicle floor shall be movement of other passengers. Space
within plus or minus 5⁄8 inch of the to accommodate wheelchairs and mo-
platform height under all normal pas- bility aids may be provided within the
senger load conditions. Vertical align- normal area used by standees and des-
ment may be accomplished by vehicle ignation of specific spaces is not re-
air suspension or other suitable means quired. Particular attention shall be
of meeting the requirement. given to ensuring maximum maneuver-
(2) Exception. New vehicles operating ability immediately inside doors.
in existing stations may have a floor Ample vertical stanchions from ceiling
height within plus or minus 11⁄2 inches to seat-back rails shall be provided.
of the platform height. At key sta- Vertical stanchions from ceiling to
tions, the horizontal gap between at floor shall not interfere with wheel-
least one door of each such vehicle and chair or mobility aid user circulation
the platform shall be no greater than 3 and shall be kept to a minimum in the
inches. vicinity of doors.
501
(c) The diameter or width of the grip- Subpart D—Light Rail Vehicles and
ping surface of handrails and stan- Systems
chions shall be 11⁄4 inches to 11⁄2 inches
or provide an equivalent gripping sur- § 38.71 General.
face and shall provide a minimum 11⁄2 (a) New, used and remanufactured
inches knuckle clearance from the light rail vehicles, to be considered ac-
nearest adjacent surface. cessible by regulations in part 37 of
this title shall comply with this sub-
§ 38.59 Floor surfaces. part.
Floor surfaces on aisles, places for (b)(1) Vehicles intended to be oper-
standees, and areas where wheelchair ated solely in light rail systems con-
and mobility aid users are to be accom- fined entirely to a dedicated right-of-
modated shall be slip-resistant. way, and for which all stations or stops
are designed and constructed for rev-
§ 38.61 Public information system. enue service after the effective date of
standards for design and construction
(a)(1) Requirements. Each vehicle shall in §§ 37.21 and 37.23 of this title shall
be equipped with a public address sys- provide level boarding and shall com-
tem permitting transportation system ply with §§ 38.73(d)(1) and 38.85 of this
personnel, or recorded or digitized part.
human speech messages, to announce (2) Vehicles designed for, and oper-
stations and provide other passenger ated on, pedestrian malls, city streets,
information. Alternative systems or or other areas where level boarding is
devices which provide equivalent ac- not practicable shall provide wayside
cess are also permitted. Each vehicle or car-borne lifts, mini-high platforms,
operating in stations having more than or other means of access in compliance
one line or route shall have an external with § 38.83 (b) or (c) of this part.
public address system to permit trans- (c) If portions of the vehicle are
portation system personnel, or re- modified in a way that affects or could
affect accessibility, each such portion
corded or digitized human speech mes-
shall comply, to the extent practicable,
sages, to announce train, route, or line
with the applicable provisions of this
identification information. subpart. This provision does not re-
(2) Exception. Where station an- quire that inaccessible vehicles be ret-
nouncement systems provide informa- rofitted with lifts, ramps or other
tion on arriving trains, an external boarding devices.
train speaker is not required. (d) Existing vehicles retrofitted to
(b) [Reserved] comply with the ‘‘one-car-per-train
rule’’ at § 37.93 of this title shall com-
§ 38.63 Between-car barriers. ply with § 38.75, § 38.77(c), § 38.79(a) and
(a) Requirement. Suitable devices or § 38.83(a) of this part and shall have, in
systems shall be provided to prevent, new and key stations, at least one door
deter or warn individuals from inad- which complies with §§ 38.73 (a)(1), (b)
and (d) of this part. Vehicles previously
vertently stepping off the platform be-
designed and manufactured in accord-
tween cars. Acceptable solutions in-
ance with the accessibility require-
clude, but are not limited to, panto-
ments of part 609 of this title or the
graph gates, chains, motion detectors Secretary of Transportation regula-
or similar devices. tions implementing section 504 of the
(b) Exception. Between-car barriers Rehabilitation Act of 1973 that were in
are not required where platform effect before October 7, 1991, and which
screens are provided which close off the can be entered and used from stations
platform edge and open only when in which they are to be operated, may
trains are correctly aligned with the be used to satisfy the requirements of
doors. § 37.93 of this title.
§ 38.73 Doorways.
(a) Clear width—(1) All passenger

doorways on vehicle sides shall have
502
minimum clear openings of 32 inches form or vehicle mounted ramps or

when open. bridge plates complying with § 38.83(c)
(2) If doorways connecting adjoining shall be provided.
cars in a multi-car train are provided,
and if such doorway is connected by an § 38.75 Priority seating signs.
aisle with a minimum clear width of 30 (a) Each vehicle shall contain sign(s)
inches to one or more spaces where which indicate that certain seats are
wheelchair or mobility aid users can be priority seats for persons with disabil-
accommodated, then such doorway ities, and that other passengers should
shall have a minimum clear opening of make such seats available to those who
30 inches to permit wheelchair and mo- wish to use them.
bility aid users to be evacuated to an (b) Where designated wheelchair or
adjoining vehicle in an emergency. mobility aid seating locations are pro-
(b) Signage. The International Sym- vided, signs shall indicate the location
bol of Accessibility shall be displayed and advise other passengers of the need
on the exterior of each vehicle oper- to permit wheelchair and mobility aid
ating on an accessible light rail system users to occupy them.
unless all vehicles are accessible and (c) Characters on signs required by
are not marked by the access symbol paragraphs (a) or (b) of this section
(see fig. 6). shall have a width-to-height ratio be-
(c) Signals. Auditory and visual warn- tween 3:5 and 1:1 and a stroke width-to-
ing signals shall be provided to alert height ratio between 1:5 and 1:10, with
passengers of closing doors. a minimum character height (using an
(d) Coordination with boarding plat- upper case ‘‘X’’) of 5⁄8 inch, with ‘‘wide’’
form—(1) Requirements. The design of spacing (generally, the space between
level-entry vehicles shall be coordi- letters shall be 1⁄16 the height of upper
nated with the boarding platform or case letters), and shall contrast with
mini-high platform design so that the the background, either light-on-dark or
horizontal gap between a vehicle at dark-on-light.
rest and the platform shall be no great-
er than 3 inches and the height of the § 38.77 Interior circulation, handrails
vehicle floor shall be within plus or and stanchions.
minus 5⁄8 inch of the platform height. (a) Handrails and stanchions shall be
Vertical alignment may be accom- sufficient to permit safe boarding, on-
plished by vehicle air suspension, auto- board circulation, seating and standing
matic ramps or lifts, or any combina- assistance, and alighting by persons
tion. with disabilities.
(2) Exception. New vehicles operating (b) At entrances equipped with steps,
in existing stations may have a floor handrails and stanchions shall be pro-
height within plus or minus 11⁄2 inches vided in the entrance to the vehicle in
of the platform height. At key sta- a configuration which allows pas-
tions, the horizontal gap between at sengers to grasp such assists from out-
least one door of each such vehicle and side the vehicle while starting to
the platform shall be no greater than 3 board, and to continue using such
inches. handrails or stanchions throughout the
(3) Exception. Retrofitted vehicles boarding process. Handrails shall have
shall be coordinated with the platform a cross-sectional diameter between 11⁄4
in new and key stations such that the inches and 11⁄2 inches or shall provide
horizontal gap shall be no greater than an equivalent grasping surface, and
4 inches and the height of the vehicle have eased edges with corner radii of
floor, under 50% passenger load, shall not less than 1⁄8 inch. Handrails shall be
be within plus or minus 2 inches of the placed to provide a minimum 11⁄2 inches
platform height. knuckle clearance from the nearest ad-
(4) Exception. Where it is not oper- jacent surface. Where on-board fare
ationally or structurally practicable to collection devices are used, a hori-
meet the horizontal or vertical require- zontal passenger assist shall be located
ments of paragraphs (d) (1), (2) or (3) of between boarding passengers and the
this section, platform or vehicle de- fare collection device and shall prevent
vices complying with § 38.83(b) or plat- passengers from sustaining injuries on
503
the fare collection device or windshield (b) Other stepwells, and doorways
in the event of a sudden deceleration. with lifts, ramps or bridge plates, shall
Without restricting the vestibule have, at all times, at least 2 foot-can-
space, the assist shall provide support dles of illumination measured on the
for a boarding passenger from the door step tread or lift or ramp, when de-
through the boarding procedure. Pas- ployed at the vehicle floor level.
sengers shall be able to lean against (c) The doorways of vehicles not op-
the assist for security while paying erating at lighted station platforms
fares. shall have outside lights which provide
(c) At all doors on level-entry vehi- at least 1 foot-candle of illumination
cles, and at each entrance accessible by on the station platform or street sur-
lift, ramp, bridge plate or other suit- face for a distance of 3 feet perpen-
able means, handrails, stanchions, pas- dicular to all points on the bottom step
senger seats, vehicle driver seat plat- tread. Such lights shall be located
forms, and fare boxes, if applicable, below window level and shielded to pro-
shall be located so as to allow a route tect the eyes of entering and exiting
at least 32 inches wide so that at least passengers.
two wheelchair or mobility aid users
§ 38.83 Mobility aid accessibility.
can enter the vehicle and position the
wheelchairs or mobility aids in areas, (a)(1) General. All new light rail vehi-
each having a minimum clear space of cles, other than level entry vehicles,
48 inches by 30 inches, which do not uncovered by this subpart shall provide a
duly restrict movement of other pas- level-change mechanism or boarding
sengers. Space to accommodate wheel- device (e.g., lift, ramp or bridge plate)
chairs and mobility aids may be pro- complying with either paragraph (b) or
vided within the normal area used by (c) of this section and sufficient clear-
standees and designation of specific ances to permit at least two wheelchair
spaces is not required. Particular at- or mobility aid users to reach areas,
tention shall be given to ensuring max- each with a minimum clear floor space
imum maneuverability immediately of 48 inches by 30 inches, which do not
inside doors. Ample vertical stanchions unduly restrict passenger flow. Space
from ceiling to seat-back rails shall be to accommodate wheelchairs and mo-
provided. Vertical stanchions from bility aids may be provided within the
ceiling to floor shall not interfere with normal area used by standees and des-
wheelchair or mobility aid circulation ignation of specific spaces is not re-
and shall be kept to a minimum in the quired.
vicinity of accessible doors. (2) Exception. If lifts, ramps or bridge
plates meeting the requirements of this
§ 38.79 Floors, steps and thresholds. section are provided on station plat-
forms or other stops required to be ac-
(a) Floor surfaces on aisles, step cessible, or mini-high platforms com-
treads, places for standees, and areas plying with § 38.73(d) of this part are
where wheelchair and mobility aid provided, the vehicle is not required to
users are to be accommodated shall be be equipped with a car-borne device.
slip-resistant. Where each new vehicle is compatible
(b) All thresholds and step edges with a single platform-mounted access
shall have a band of color(s) running system or device, additional systems or
the full width of the step or threshold devices are not required for each vehi-
which contrasts from the step tread cle provided that the single device
and riser or adjacent floor, either light- could be used to provide access to each
on-dark or dark-on-light. new vehicle if passengers using wheel-
chairs or mobility aids could not be ac-
§ 38.81 Lighting.
commodated on a single vehicle.
(a) Any stepwell or doorway with a (b) Vehicle lift—(1) Design load. The
lift, ramp or bridge plate immediately design load of the lift shall be at least
adjacent to the driver shall have, when 600 pounds. Working parts, such as ca-
the door is open, at least 2 foot-candles bles, pulleys, and shafts, which can be
of illumination measured on the step expected to wear, and upon which the
tread or lift platform. lift depends for support of the load,
504
shall have a safety factor of at least (3) Emergency operation. The lift shall
six, based on the ultimate strength of incorporate an emergency method of
the material. Nonworking parts, such deploying, lowering to ground level
as platform, frame, and attachment with a lift occupant, and raising and
hardware which would not be expected stowing the empty lift if the power to
to wear, shall have a safety factor of at the lift fails. No emergency method,
least three, based on the ultimate manual or otherwise, shall be capable
strength of the material. of being operated in a manner that
(2) Controls—(i) Requirements. The could be hazardous to the lift occupant
controls shall be interlocked with the or to the operator when operated ac-
vehicle brakes, propulsion system, or cording to manufacturer’s instructions,
door, or shall provide other appropriate and shall not permit the platform to be
mechanisms or systems, to ensure that stowed or folded when occupied, unless
the vehicle cannot be moved when the the lift is a rotary lift intended to be
lift is not stowed and so the lift cannot stowed while occupied.
be deployed unless the interlocks or (4) Power or equipment failure. Lift
systems are engaged. The lift shall de- platforms stowed in a vertical position,
ploy to all levels (i.e., ground, curb, and deployed platforms when occupied,
and intermediate positions) normally shall have provisions to prevent their
encountered in the operating environ- deploying, falling, or folding any faster
ment. Where provided, each control for than 12 inches/second or their dropping
deploying, lowering, raising, and stow- of an occupant in the event of a single
failure of any load carrying compo-
ing the lift and lowering the roll-off
nent.
barrier shall be of a momentary con-
(5) Platform barriers. The lift platform
tact type requiring continuous manual
shall be equipped with barriers to pre-
pressure by the operator and shall not
vent any of the wheels of a wheelchair
allow improper lift sequencing when
or mobility aid from rolling off the lift
the lift platform is occupied. The con-
during its operation. A movable barrier
trols shall allow reversal of the lift op-
or inherent design feature shall pre-
eration sequence, such as raising or
vent a wheelchair or mobility aid from
lowering a platform that is part way
rolling off the edge closest to the vehi-
down, without allowing an occupied
cle until the lift is in its fully raised
platform to fold or retract into the position. Each side of the lift platform
stowed position. which extends beyond the vehicle in its
(ii) Exception. Where physical or safe- raised position shall have a barrier a
ty constraints prevent the deployment minimum 11⁄2 inches high. Such bar-
at some stops of a lift having its long riers shall not interfere with maneu-
dimension perpendicular to the vehicle vering into or out of the aisle. The
axis, the transportation entity may loading-edge barrier (outer barrier)
specify a lift which is designed to de- which functions as a loading ramp
ploy with its long dimension parallel to when the lift is at ground level, shall
the vehicle axis and which pivots into be sufficient when raised or closed, or a
or out of the vehicle while occupied supplementary system shall be pro-
(i.e., ‘‘rotary lift’’). The requirements vided, to prevent a power wheelchair or
of paragraph (b)(2)(i) of this section mobility aid from riding over or defeat-
prohibiting the lift from being stowed ing it. The outer barrier on the out-
while occupied shall not apply to a lift board of the lift shall automatically
design of this type if the stowed posi- rise or close, or a supplementary sys-
tion is within the passenger compart- tem shall automatically engage, and
ment and the lift is intended to be remain raised, closed, or engaged at all
stowed while occupied. times that the lift is more than 3
(iii) Exception. The brake or propul- inches above the station platform or
sion system interlocks requirement roadway and the lift is occupied. Alter-
does not apply to a station platform natively, a barrier or system may be
mounted lift provided that a mechan- raised, lowered, opened, closed, en-
ical, electrical or other system oper- gaged or disengaged by the lift oper-
ates to ensure that vehicles do not ator provided an interlock or inherent

move when the lift is in use. design feature prevents the lift from
505
rising unless the barrier is raised or izontal and vertical acceleration when
closed or the supplementary system is occupied shall be 0.3g.
engaged. (11) Boarding direction. The lift shall
(6) Platform surface. The lift platform permit both inboard and outboard fac-
surface shall be free of any protrusions ing of wheelchairs and mobility aids.
over 1⁄4 inch high and shall be slip re- (12) Use by standees. Lifts shall ac-
sistant. The lift platform shall have a commodate persons using walkers,
minimum clear width of 281⁄2 inches at crutches, canes or braces or who other-
the platform, a minimum clear width wise have difficulty using steps. The
of 30 inches measured from 2 inches lift may be marked to indicate a pre-
above the lift platform surface to 30 ferred standing position.
inches above the surface, and a min- (13) Handrails. Platforms on lifts
imum clear length of 48 inches meas- shall be equipped with handrails, on
ured from 2 inches above the surface of two sides, which move in tandem with
the platform to 30 inches above the sur- the lift which shall be graspable and
face. (See Fig. 1) provide support to standees throughout
(7) Platform gaps. Any openings be- the entire lift operation. Handrails
tween the lift platform surface and the shall have a usable component at least
raised barriers shall not exceed 5⁄8 inch 8 inches long with the lowest portion a
wide. When the lift is at vehicle floor minimum 30 inches above the platform
height with the inner barrier (if appli- and the highest portion a maximum 38
cable) down or retracted, gaps between inches above the platform. The hand-
the forward lift platform edge and ve- rails shall be capable of withstanding a
hicle floor shall not exceed 1⁄2 inch force of 100 pounds concentrated at any
horizontally and 5⁄8 inch vertically. point on the handrail without perma-
Platforms on semi-automatic lifts may nent deformation of the rail or its sup-
porting structure. Handrails shall have
have a hand hold not exceeding 11⁄2
a cross-sectional diameter between 11⁄4
inches by 41⁄2 inches located between
inches and 11⁄2 inches or shall provide
the edge barriers.
an equivalent grasping surface, and
(8) Platform entrance ramp. The en- have eased edges with corner radii of
trance ramp, or loading-edge barrier not less than 1⁄8 inch. Handrails shall be
used as a ramp, shall not exceed a slope placed to provide a minimum 11⁄2 inches
of 1:8 measured on level ground, for a knuckle clearance from the nearest ad-
maximum rise of 3 inches, and the jacent surface. Handrails shall not
transition from the station platform or interfere with wheelchair or mobility
roadway to ramp may be vertical with- aid maneuverability when entering or
out edge treatment up to 1⁄4 inch. leaving the vehicle.
Thresholds between 1⁄4 inch and 1⁄2 inch (c) Vehicle ramp or bridge plate—(1) De-
high shall be beveled with a slope no sign load. Ramps or bridge plates 30
greater than 1:2. inches or longer shall support a load of
(9) Platform deflection. The lift plat- 600 pounds, placed at the centroid of
form (not including the entrance ramp) the ramp or bridge plate distributed
shall not deflect more than 3 degrees over an area of 26 inches, with a safety
(exclusive of vehicle roll) in any direc- factor of at least 3 based on the ulti-
tion between its unloaded position and mate strength of the material. Ramps
its position when loaded with 600 or bridge plates shorter than 30 inches
pounds applied through a 26 inch by 26 shall support a load of 300 pounds.
inch test pallet at the centroid of the (2) Ramp surface. The ramp or bridge
lift platform. plate surface shall be continuous and
(10) Platform movement. No part of the slip resistant, shall not have protru-
platform shall move at a rate exceed- sions from the surface greater then 1⁄4
ing 6 inches/second during lowering and inch, shall have a clear width of 30
lifting an occupant, and shall not ex- inches, and shall accommodate both
ceed 12 inches/second during deploying four-wheel and three-wheel mobility
or stowing. This requirement does not aids.
apply to the deployment or stowage cy- (3) Ramp threshold. The transition
cles of lifts that are manually deployed from roadway or station platform and
or stowed. The maximum platform hor- the transition from vehicle floor to the
506
ramp or bridge plate may be vertical ard to passengers in the event of a sud-
without edge treatment up to 1⁄4 inch. den stop.
Changes in level between 1⁄4 inch and 1⁄2 (8) Handrails. If provided, handrails
inch shall be beveled with a slope no shall allow persons with disabilities to
greater than 1:2. grasp them from outside the vehicle
(4) Ramp barriers. Each side of the while starting to board, and to con-
ramp or bridge plate shall have bar- tinue to use them throughout the
riers at least 2 inches high to prevent boarding process, and shall have the
mobility aid wheels from slipping off. top between 30 inches and 38 inches
(5) Slope. Ramps or bridge plates shall above the ramp surface. The handrails
have the least slope practicable. If the shall be capable of withstanding a force
height of the vehicle floor, under 50% of 100 pounds concentrated at any point
passenger load, from which the ramp is on the handrail without permanent de-
deployed is 3 inches or less above the formation of the rail or its supporting
station platform a maximum slope of structure. The handrail shall have a
1:4 is permitted; if the height of the ve- cross- sectional diameter between 11⁄4
hicle floor, under 50% passenger load, inches and 11⁄2 inches or shall provide
from which the ramp is deployed is 6 an equivalent grasping surface, and
inches or less, but more than 3 inches, have ‘‘eased’’ edges with corner radii of
above the station platform a maximum not less than 1⁄8 inch. Handrails shall
slope of 1:6 is permitted; if the height not interfere with wheelchair or mobil-
of the vehicle floor, under 50% pas- ity aid maneuverability when entering
senger load, from which the ramp is de- or leaving the vehicle.
ployed is 9 inches or less, but more
§ 38.85 Between-car barriers.
than 6 inches, above the station plat-
form a maximum slope of 1:8 is per- Where vehicles operate in a high-
mitted; if the height of the vehicle platform, level-boarding mode, devices
floor, under 50% passenger load, from or systems shall be provided to pre-
which the ramp is deployed is greater vent, deter or warn individuals from in-
than 9 inches above the station plat- advertently stepping off the platform
form a slope of 1:12 shall be achieved. between cars. Appropriate devices in-
Folding or telescoping ramps are per- clude, but are not limited to, panto-
mitted provided they meet all struc- graph gates, chains, motion detectors
tural requirements of this section. or other suitable devices.
(6) Attachment—(i) Requirement. When
§ 38.87 Public information system.
in use for boarding or alighting, the
ramp or bridge plate shall be attached (a) Each vehicle shall be equipped
to the vehicle, or otherwise prevented with an interior public address system
from moving such that it is not subject permitting transportation system per-
to displacement when loading or un- sonnel, or recorded or digitized human
loading a heavy power mobility aid and speech messages, to announce stations
that any gaps between vehicle and and provide other passenger informa-
ramp or bridge plate, and station plat- tion. Alternative systems or devices
form and ramp or bridge plate, shall which provide equivalent access are
not exceed 5⁄8 inch. also permitted.
(ii) Exception. Ramps or bridge plates (b) [Reserved]
which are attached to, and deployed
from, station platforms are permitted Subpart E—Commuter Rail Cars
in lieu of vehicle devices provided they and Systems
meet the displacement requirements of
paragraph (c)(6)(i) of this section. § 38.91 General.
(7) Stowage. A compartment, secure- (a) New, used and remanufactured
ment system, or other appropriate commuter rail cars, to be considered
method shall be provided to ensure accessible by regulations in part 37 of
that stowed ramps or bridge plates, in- this title, shall comply with this sub-
cluding portable ramps or bridges part.
plates stowed in the passenger area, do (b) If portions of the car are modified
not impinge on a passenger’s wheel- in such a way that it affects or could

chair or mobility aid or pose any haz- affect accessibility, each such portion
507
shall comply, to the extent practicable, doors required to be accessible by para-

with the applicable provisions of this graph (a)(1) of this section to seating
subpart. This provision does not relocations complying with § 38.95(d) of
quire that inaccessible cars be retro- this part. In cars where such doorways
fitted with lifts, ramps or other board- require passage through a vestibule,
ing devices. such vestibule shall have a minimum
(c)(1) Commuter rail cars shall com- width of 42 inches. (See Fig. 3.)
ply with §§ 38.93(d) and 38.109 of this (c) Signals. If doors to the platform
part for level boarding unless struc- close automatically or from a remote
turally or operationally impracticable. location, auditory and visual warning
(2) Where level boarding is struc- signals shall be provided to alert pas-
turally or operationally impracticable, sengers or closing doors.
commuter rail cars shall comply § 38.95 (d) Coordination with boarding plat-
of this part.
form—(1) Requirements. Cars operating
(d) Existing vehicles retrofitted to
in stations with high platforms, or
comply with the ‘‘one-car-per-train
mini-high platforms, shall be coordi-
rule’’ at § 37.93 of this title shall com-
nated with the boarding platform de-
ply with §§ 38.93(e), 38.95(a) and 38.107 of
this part and shall have, in new and sign such that the horizontal gap be-
key stations at least one door on each tween a car at rest and the platform
side from which passengers board shall be no greater than 3 inches and
which complies with § 38.93(d) of this the height of the car floor shall be
part. Vehicles previously designed and within plus or minus 5⁄8 inch of the
manufactured in accordance with the platform height. Vertical alignment
program accessibility requirements of may be accomplished by car air suspen-
section 504 of the Rehabilitation Act of sion, platform lifts or other devices, or
1973, or implementing regulations of any combination.
the Secretary of Transportation that (2) Exception. New vehicles operating
were in effect before October 7, 1991; in existing stations may have a floor
and which can be entered and used height within plus or minus 11⁄2 inches
from stations in which they are to be of the platform height. At key sta-
operated, may be used to satisfy the re- tions, the horizontal gap between at
quirements of § 37.93 of this title. least one accessible door of each such
vehicle and the platform shall be no
FR 57939, Sept. 19, 2011] greater than 3 inches.
(3) Exception. Where platform set-
§ 38.93 Doorways. backs do not allow the horizontal gap
(a) Clear width. (1) At least one door or vertical alignment specified in para-
on each side of the car from which pas- graph (d)(1) or (d)(2) of this section,
sengers board opening onto station car, platform or portable lifts com-
platforms and at least one adjacent plying with § 38.95(b) of this part, or car
doorway into the passenger coach com- or platform ramps or bridge plates,
partment, if provided, shall have a complying with § 38.95(c) of this part,
minimum clear opening of 32 inches. shall be provided,ensuring compliance
(2) If doorways connecting adjoining with section 37.42, where applicable.
cars in a multi-car train are provided, (4) Exception. Retrofitted vehicles
and if such doorway is connected by an shall be coordinated with the platform
aisle with a minimum clear width of 30 in new and key stations such that the
inches to one or more spaces where horizontal gap shall be no greater than
wheelchair or mobility aid users can be 4 inches and the height of the vehicle
accommodated, then such doorway floor, under 50% passenger load, shall
shall have, to the maximum extent be within plus or minus 2 inches of the
practicable in accordance with the reg- platform height.
ulations issued under the Federal Rail- (e) Signage. The International Sym-
road Safety Act of 1970 (49 CFR parts bol of Accessibility shall be displaced
229 and 231), a clear opening of 30 on the exterior of all doors complying
inches. with this section unless all cars are ac-
(b) Passageways. A route at least 32 cessible and are not marked by the ac-
inches wide shall be provided from cess symbol (see Fig. 6). Appropriate
508
signage shall also indicate which acces- the lift and lowering the roll-off bar-
sible doors are adjacent to an acces- rier shall be of a monetary contact
sible restroom, if applicable. type requiring continuous manual pres-
[56 FR 45756, Sept. 6, 1991, as amended at 76 sure by the operator and shall not
FR 57939, Sept. 19, 2011] allow improper lift sequencing when
the lift platform is occupied. The con-
§ 38.95 Mobility aid accessibility. trols shall allow reversal of the lift op-
(a)(1) General. All new commuter rail eration sequence, such as raising or
cars, other than level entry cars, cov- lowering a platform that is part way
ered by this subpart shall provide a down, without allowing an occupied
level-change mechanism or boarding platform to fold or retract into the
device (e.g., lift, ramp or bridge plate) stowed position.
complying with either paragraph (b) or (ii) Exception. Where physical or safe-
(c) of this section; sufficient clearances ty constraints prevent the deployment
to permit a wheelchair or mobility aid at some stops of a lift having its long
user to reach a seating location; and at dimension perpendicular to the car
least two wheelchair or mobility aid axis, the transportation entity may
seating locations complying with para- specify a lift which is designed to de-
graph (d) of this section. ploy with its long dimension parallel to
(2) Exception. If level-entry boarding, the car axis and which pivots into or
portable or platform lifts, ramps or out of the car while occupied (i.e., ‘‘ro-
bridge plates meeting the applicable tary lift’’). The requirements of para-
requirements of this section are pro- graph (b)(2)(i) of this section prohib-
vided on station platforms or other iting the lift from being stowed while
stops required to be accessible, or occupied shall not apply to a lift design
mini-high platforms complying with of this type if the stowed position is
§ 38.93(d) are provided, the car is not re- within the passenger compartment and
quired to be equipped with a car-borne the lift is intended to be stowed while
device. The access systems or devices occupied.
used at a station to which section 37.42 (iii) Exception. The brake or propul-
applies must permit compliance with
sion system interlock requirement does
that section.
not apply to a platform mounted or
(b) Car Lift—(1) Design load. The de-
portable lift provided that a mechan-
sign load of the lift shall be at least 600
ical, electrical or other system oper-
pounds. Working parts, such as cables,
pulleys, and shafts, which can be ex- ates to ensure that cars do not move
pected to wear, and upon which the lift when the lift is in use.
depends for support of the load, shall (3) Emergency operation. The lift shall
have a safety factor of at least six, incorporate an emergency method of
based on the ultimate strength of the deploying, lowering to ground or plat-
material. Nonworking parts, such as form level with a lift occupant, and
platform, frame, and attachment hard- raising and stowing the empty lift if
ware which would not be expected to the power to the lift fails. No emer-
wear, shall have a safety factor of at gency method, manual or otherwise,
least three, based on the ultimate shall be capable of being operated in a
strength of the material. manner that could be hazardous to the
(2) Controls—(i) Requirements. The lift occupant or to the operator when
controls shall be interlocked with the operated according to manufacturer’s
car brakes, propulsion system, or door, instructions, and shall not permit the
or shall provide other appropriate platform to be stowed or folded when
mechanisms or systems, to ensure that occupied, unless the lift is a rotary lift
the car cannot be moved when the lift intended to be stowed while occupied.
is not stowed and so the lift cannot be (4) Power or equipment failure. Plat-
deployed unless the interlocks or sys- forms stowed in a vertical position, and
tems are engaged. The lift shall deploy deployed platforms when occupied,
to all platform levels normally encoun- shall have provisions to prevent their
tered in the operating environment. deploying, falling, or folding any faster
Where provided, each control for de- than 12 inches/second or their dropping
ploying, lowering, raising, and stowing of an occupant in the event of a single
509
failure of any load carrying compo- floor shall not exceed 1⁄2 inch hori-
nent. zontally and 5⁄8 inch vertically.
(5) Platform barriers. The lift platform (8) Platform entrance ramp. The en-
shall be equipped with barriers to pre- trance ramp, or loading-edge barrier
vent any of the wheels of a wheelchair used as a ramp, shall not exceed a slope
or mobility aid from rolling off the lift of 1:8, when measured on level ground,
during its operation. A movable barrier for a maximum rise of 3 inches, and the
or inherent design feature shall pre- transition from station platform to
vent a wheelchair or mobility aid from ramp may be vertical without edge
rolling off the edge closest to the car treatment up to 1⁄4 inch. Thresholds be-
until the lift is in its fully raised posi- tween 1⁄4 inch and 1⁄2 inch high shall be
tion. Each side of the lift platform beveled with a slope no greater than
which, in its raised position, extends 1:2.
beyond the car shall have a barrier a (9) Platform deflection. The lift plat-
minimum 11⁄2 inches high. Such bar- form (not including the entrance ramp)
riers shall not interfere with maneu- shall not deflect more than 3 degrees
vering into or out of the car. The load- (exclusive of vehicle roll) in any direc-
ing-edge barrier (outer barrier) which tion between its unloaded position and
functions as a loading ramp when the its position when loaded with 600
lift is at ground or station platform pounds applied through a 26 inch by 26
level, shall be sufficient when raised or inch test pallet at the centroid of the
closed, or a supplementary system lift platform.
shall be provided, to prevent a power
(10) Platform movement. No part of the
wheelchair or mobility aid from riding
platform shall move at a rate exceed-
over or defeating it. The outer barrier
ing 6 inches/second during lowering and
of the lift shall automatically rise or
lifting an occupant, and shall not ex-
close, or a supplementary system shall
ceed 12 inches/second during deploying
automatically engage, and remain
or stowing. This requirement does not
raised, closed, or engaged at all times
apply to the deployment or stowage cy-
that the lift platform is more than 3
cles of lifts that are manually deployed
inches above the station platform and
the lift is occupied. Alternatively, a or stowed. The maximum platform hor-
barrier or system may be raised, low- izontal and vertical acceleration when
ered, opened, closed, engaged or dis- occupied shall be 0.3g.
engaged by the lift operator provided (11) Boarding direction. The lift shall
an interlock or inherent design feature permit both inboard and outboard fac-
prevents the lift from rising unless the ing of wheelchairs and mobility aids.
barrier is raised or closed or the sup- (12) Use by standees. Lifts shall ac-
plementary system is engaged. commodate persons using walkers,
(6) Platform surface. The lift platform crutches, canes or braces or who other-
surface shall be free of any protrusions wise have difficulty using steps. The
over 1⁄4 inch high and shall be slip re- lift may be marked to indicate a pre-
sistant. The lift platform shall have a ferred standing position.
minimum clear width of 281⁄2 inches at (13) Handrails. Platforms on lifts
the platform, a minimum clear width shall be equipped with handrails, on
of 30 inches measured from 2 inches two sides, which move in tandem with
above the lift platform surface to 30 the lift which shall be graspable and
inches above the surface, and a min- provide support to standees throughout
imum clear length of 48 inches meas- the entire lift operation. Handrails
ured from 2 inches above the surface of shall have a usable component at least
the platform to 30 inches above the sur- 8 inches long with the lowest portion a
face. (See Fig. 1) minimum 30 inches above the platform
(7) Platform gaps. Any openings be- and the highest portion a maximum 38
tween the lift platform surface and the inches above the platform. The hand-
raised barriers shall not exceed 5⁄8 inch rails shall be capable of withstanding a
wide. When the lift is at car floor force of 100 pounds concentrated at any
height with the inner barrier down (if point on the handrail without perma-
applicable) or retracted, gaps between nent deformation of the rail or its sup-
the forward lift platform edge and car porting structure. The handrail shall
510
have a cross-sectional diameter be- mitted; if the height of the vehicle

tween 11⁄4 inches and 11⁄2 inches or shall floor, under 50% passenger load, from
provide an equivalent grasping surface, which the ramp is deployed is greater
and have eased edges with corner radii than 9 inches above the station plat-
of not less than 1⁄8 inch. Handrails shall form a slope of 1:12 shall be achieved.
be placed to provide a minimum 11⁄2 Folding or telescoping ramps are per-
inches knuckle clearance from the mitted provided they meet all struc-
nearest adjacent surface. Handrails tural requirements of this section.
shall not interfere with wheelchair or (6) Attachment—(i) Requirement. When
mobility aid maneuverability when en- in use for boarding or alighting, the
tering or leaving the car. ramp or bridge plate shall be attached
(c) Car ramp or bridge plate—(1) Design to the vehicle, or otherwise prevented
load. Ramps or bridge plates 30 inches from moving such that it is not subject
or longer shall support a load of 600 to displacement when loading or un-
pounds, placed at the centroid of the loading a heavy power mobility aid and
ramp or bridge plate distributed over that any gaps between vehicle and
an area of 26 inches by 26 inches, with ramp or bridge plate, and station plat-
a safety factor of at least 3 based on form and ramp or bridge plate, shall
the ultimate strength of the material. not exceed 5⁄8 inch.
Ramps or bridge plates shorter than 30 (ii) Exception. Ramps or bridge plates
inches shall support a load of 300 which are attached to, and deployed
pounds. from, station platforms are permitted
(2) Ramp surface. The ramp or bridge in lieu of car devices provided they
plate surface shall be continuous and meet the displacement requirements of
slip resistant, shall not have protru- paragraph (c)(6)(i) of this section.
sions from the surface greater than 1⁄4 (7) Stowage. A compartment, secure-
inch high, shall have a clear width of 30 ment system, or other appropriate
inches and shall accommodate both method shall be provided to ensure
four-wheel and three-wheel mobility that stowed ramps or bridge plates, in-
aids. cluding portable ramps or bridge plates
(3) Ramp threshold. The transition stowed in the passenger area, do not
from station platform to the ramp or impinge on a passenger’s wheelchair or
bridge plate and the transition from mobility aid or pose any hazard to pas-
car floor to the ramp or bridge plate sengers in the event of a sudden stop.
may be vertical without edge treat- (8) Handrails. If provided, handrails
ment up to 1⁄4 inch. Changes in level be- shall allow persons with disabilities to
tween 1⁄4 inch and 1⁄2 inch shall be bev- grasp them from outside the car while
eled with a slope no greater than 1:2. starting to board, and to continue to
(4) Ramp barriers. Each side of the use them throughout the boarding
ramp or bridge plate shall have bar- process, and shall have the top between
riers at least 2 inches high to prevent 30 inches and 38 inches above the ramp
mobility aid wheels from slipping off. surface. The handrails shall be capable
(5) Slope. Ramps or bridge plates shall of withstanding a force of 100 pounds
have the least slope practicable. If the concentrated at any point on the hand-
height of the vehicle floor, under 50% rail without permanent deformation of
passenger load, from which the ramp is the rail or its supporting structure.
deployed is 3 inches or less above the The handrail shall have a cross-sec-
station platform a maximum slope of tional diameter between 11⁄4 inches and
1:4 is permitted; if the height of the ve- 11⁄2 inches or shall provide an equiva-
hicle floor, under 50% passenger load, lent grasping surface, and have eased
from which the ramp is deployed is 6 edges with corner radii of not less than
inches or less, but more than 3 inches, 1⁄8 inch. Handrails shall not interfere
above the station platform a maximum with wheelchair or mobility aid ma-
slope of 1:6 is permitted; if the height neuverability when entering or leaving
of the vehicle floor, under 50% pas- the car.
senger load, from which the ramp is de- (d) Mobility aid seating location.
ployed is 9 inches or less, but more Spaces for persons who wish to remain
than 6 inches, above the station plat- in their wheelchairs or mobility aids
form a maximum slope of 1:8 is per- shall have a minimum clear floor space
511
48 inches by 30 inches. Such spaces which contrasts from the step tread
shall adjoin, and may overlap, an ac- and riser or adjacent floor, either light-
cessible path. Not more than 6 inches on-dark or dark-on-light.
of the required clear floor space may be
accommodated for footrests under an- § 38.101 Lighting.
other seat provided there is a minimum (a) Any stepwell or doorway with a
of 9 inches from the floor to the lowest lift, ramp or bridge plate shall have,
part of the seat overhanging the space. when the door is open, at least 2 foot-
Seating spaces may have fold-down or candles of illumination measured on
removable seats to accommodate other the step tread, ramp, bridge plate, or
passengers when a wheelchair or mobil- lift platform.
ity aid user is not occupying the area, (b) The doorways of cars not oper-
provided the seats, when folded up, do ating at lighted station platforms shall
not obstruct the clear floor space re- have outside lights which, when the
quired. (See Fig. 2.) door is open, provide at least 1 foot-
[56 FR 45756, Sept. 6, 1991, as amended at 76 candle of illumination on the station
FR 57939, Sept. 19, 2011] platform surface for a distance of 3 feet
perpendicular to all points on the bot-
§ 38.97 Interior circulation, handrails tom step tread edge. Such lights shall
and stanchions.
be shielded to protect the eyes of enter-
(a) Where provided, handrails or stan- ing and exiting passengers.
chions within the passenger compart-
ment shall be placed to permit suffi- § 38.103 Public information system.
cient turning and maneuvering space (a) Each car shall be equipped with
for wheelchairs and other mobility aids
an interior public address system per-
to reach a seating location, complying
mitting transportation system per-
with § 38.95(d) of this part, from an ac-
sonnel, or recorded or digitized human
cessible entrance. The diameter or
speech messages, to announce stations
width of the gripping surface of inte-
and provide other passenger informa-
rior handrails and stanchions shall be
tion. Alternative systems or devices
11⁄4 inches to 11⁄2 inches or shall provide
which provide equivalent access are
an equivalent gripping surface. Hand-
also permitted.
rails shall be placed to provide a min-
(b) [Reserved]
imum 11⁄2 inches knuckle clearance
from the nearest adjacent surface. § 38.105 Priority seating signs.
(b) Where provided, handrails or stan-
chions shall be sufficient to permit safe (a) Each car shall contain sign(s)
boarding, on-board circulation, seating which indicate that certain seats are
and standing assistance, and alighting priority seats for persons with disabil-
by persons with disabilities. ities and that other passengers should
(c) At entrances equipped with steps, make such seats available to those who
handrails or stanchions shall be pro- wish to use them.
vided in the entrance to the car in a (b) Characters on signs required by
configuration which allows passengers paragraph (a) shall have a width-to-
to grasp such assists from outside the height ratio between 3:5 and 1:1 and a
car while starting to board, and to con- stroke width-to-height ratio between
tinue using such assists throughout the 1:5 and 1:10, with a minimum character
boarding process, to the extent per- height (using an upper case ‘‘X’’) of 5⁄8
mitted by part 231 of this title. inch, with ‘‘wide’’ spacing (generally,
the space between letters shall be 1⁄16
§ 38.99 Floors, steps and thresholds. the height of upper case letters), and
(a) Floor surfaces on aisles, step shall contrast with the background ei-
treads, places for standees, and areas ther light-on-dark or dark-on-light.
where wheelchair and mobility aid
users are to be accommodated shall be § 38.107 Restrooms.
slip-resistant. (a) If a restroom is provided for the
(b) All thresholds and step edges general public, it shall be designed so
shall have a band of color(s) running as to allow a person using a wheelchair

the full width of the step or threshold or mobility aid to enter and use such
512
restroom as specified in paragraphs (a) vided, devices or systems shall be pro-

(1) through (5) of this section. vided to prevent, deter or warn individ-
(1) The minimum clear floor area uals from inadvertently stepping off
shall be 35 inches by 60 inches. Perma- the platform between cars. Appropriate
nently installed fixtures may overlap devices include, but are not limited to,
this area a maximum of 6 inches, if the pantograph gates, chains, motion de-
lowest portion of the fixture is a min- tectors or other suitable devices.
imum of 9 inches above the floor, and
may overlap a maximum of 19 inches, if Subpart F—Intercity Rail Cars and
the lowest portion of the fixture is a Systems
minimum of 29 inches above the floor,
provided such fixtures do not interfere § 38.111 General.
with access to the water closet. Fold- (a) New, used and remanufactured
down or retractable seats or shelves intercity rail cars, to be considered ac-
may overlap the clear floor space at a cessible by regulations in part 37 of
lower height provided they can be eas- this title shall comply with this sub-
ily folded up or moved out of the way. part to the extent required for each
(2) The height of the water closet type of car as specified below.
shall be 17 inches to 19 inches measured (1) Single-level rail passenger coach-
to the top of the toilet seat. Seats shall es and food service cars (other than
not be sprung to return to a lifted posi- single-level dining cars) shall comply
tion. with §§ 38.113 through 38.123 of this part.
(3) A grab bar at least 24 inches long Compliance with § 38.125 of this part
shall be mounted behind the water shall be required only to the extent
closet, and a horizontal grab bar at necessary to meet the requirements of
least 40 inches long shall be mounted paragraph (d) of this section.
on at least one side wall, with one end (2) Single-level dining and lounge
not more than 12 inches from the back cars shall have at least one connecting
wall, at a height between 33 inches and doorway complying with § 38.113(a)(2) of
36 inches above the floor. this part connected to a car accessible
(4) Faucets and flush controls shall to persons using wheelchairs or mobil-
be operable with one hand and shall ity aids, and at least one space com-
not require tight grasping, pinching, or plying with §§ 38.125(d) (2) and (3) of this
twisting of the wrist. The force re- part, to provide table service to a per-
quired to activate controls shall be no son who wishes to remain in his or her
greater than 5 lbf (22.2 N). Controls for wheelchair, and space to fold and store
flush valves shall be mounted no more a wheelchair for a person who wishes to
than 44 inches above the floor. transfer to an existing seat.
(5) Doorways on the end of the enclo- (3) Bi-level dining cars shall comply
sure, opposite the water closet, shall with §§ 38.113(a)(2), 38.115(b), 38.117(a),
have a minimum clear opening width and 38.121 of this part.
of 32 inches. Doorways on the side wall (4) Bi-level lounge cars shall have
shall have a minimum clear opening doors on the lower level, on each side
width of 39 inches. Door latches and of the car from which passengers board,
hardware shall be operable with one complying with § 38.113, a restroom
hand and shall not require tight grasp- complying with § 38.123, and at least
ing, pinching, or twisting of the wrist. one space complying with § 38.125(d) (2)
(b) Restrooms required to be acces- and (3) to provide table service to a
sible shall be in close proximity to at person who wishes to remain in his or
least one seating location for persons her wheelchair and space to fold and
using mobility aids and shall be con- store a wheelchair for a person who
nected to such a space by an unob- wishes to transfer to an existing seat.
structed path having a minimum width (5) Restrooms, complying with § 38.123
of 32 inches. shall be provided in single-level rail
passenger coaches and food services
§ 38.109 Between-car barriers. cars adjacent to the accessible seating
Where vehicles operate in a high- locations required by paragraph (d) of
platform, level-boarding mode, and this section. Accessible restrooms are

where between-car bellows are not pro- required in dining and lounge cars only
513
if restrooms are provided for other pas- (2) Doorways at ends of cars con-
sengers. necting two adjacent cars, to the max-
(6) Sleeper cars shall comply with imum extent practicable in accordance
§§ 38.113 (b) through (d), 38.115 through with regulations issued under the Fed-
38.121, and 38.125, of this part, and have eral Railroad Safety Act of 1970 (49
at least one compartment which can be CFR parts 229 and 231), shall have a
entered and used by a person using a clear opening width of 32 inches to per-
wheelchair or mobility aid and commit wheelchair and mobility aid users
plying with § 38.127 of this part. to enter into a single-level dining car,
(b)(1) Unless structurally or oper- if available.
ationally impracticable, intercity rail (b) Passageway. Doorways required to
cars shall comply with § 38.113(d) of this be accessible by paragraph (a) of this
part for level boarding. section shall permit access by persons
(2) Where level boarding is struc- using mobility aids and shall have an
turally or operationally impracticable, unobstructed passageway at least 32
intercity rail cars shall comply with inches wide leading to an accessible
§ 38.125. sleeping compartment complying with
(c) If portions of the car are modified § 38.127 of this part or seating locations
in a way that it affects or could affect complying with § 38.125(d) of this part.
accessibility, each such portion shall In cars where such doorways require
comply, to the extent practicable, with passage through a vestibule, such ves-
the applicable provisions of this sub- tibule shall have a minimum width of
part. This provision does not require 42 inches. (see Fig. 4)
that inaccessible cars be retrofitted (c) Signals. If doors to the platform
with lifts, ramps or other boarding de- close automatically or from a remote
vices. location, auditory and visual warning
(d) Passenger coaches or food service signals shall be provided to alert pas-
cars shall have the number of spaces sengers of closing doors.
complying with § 38.125(d)(2) of this (d) Coordination with boarding plat-
part and the number of spaces com- forms—(1) Requirements. Cars which pro-
plying with § 38.125(d)(3) of this part, as vide level-boarding in stations with
required by § 37.91 of this title. high platforms shall be coordinated
(e) Existing cars retrofitted to meet with the boarding platform or mini-
the seating requirements of § 37.91 of high platform design such that the hor-
this title shall comply with § 38.113(e), izontal gap between a car at rest and
§ 38.123, § 38.125(d) of this part and shall the platform shall be no greater than 3
have at least one door on each side inches and the height of the car floor
from which passengers board com- shall be within plus or minus 5⁄8 inch of
plying with § 38.113(d) of this part. Ex- the platform height. Vertical align-
isting cars designed and manufactured ment may be accomplished by car air
to be accessible in accordance with the suspension, platform lifts or other de-
Secretary of Transportation regula- vices, or any combination.
tions implementing section 504 of the (2) Exception. New cars operating in
Rehabilitation Act of 1973 that were in existing stations may have a floor
effect before October 7, 1991, shall com- height within plus or minus 11⁄2 inches
ply with § 38.125(a) of this part. of the platform height.
[56 FR 45756, Sept. 6, 1991, as amended at 76 (3) Exception. Where platform set-
FR 57939, Sept. 19, 2011] backs do not allow the horizontal gap
or vertical alignment specified in para-
§ 38.113 Doorways. graph (d) (1) or (2), platform or portable
(a) Clear width. (1) At least one door- lifts complying with § 38.125(b) of this
way, on each side of the car from which part, or car or platform bridge plates,
passengers board, of each car required complying with § 38.125(c) of this part,
to be accessible by § 38.111(a) and where may be provided ensuring compliance
the spaces required by § 38.111(d) of this with section 37.42, where applicable.
part are located, and at least one adja- (4) Exception. Retrofitted vehicles
cent doorway into coach passenger shall be coordinated with the platform
compartments shall have a minimum in existing stations such that the hori-
clear opening width of 32 inches. zontal gap shall be no greater than 4
514
inches and the height of the vehicle and riser or adjacent floor, either light-
floor, under 50% passenger load, shall on-dark or dark-on-light.
be within plus or minus 2 inches of the
platform height. § 38.119 Lighting.
(e) Signage. The International Sym- (a) Any stepwell, or doorway with a
bol of Accessibility shall be displayed lift, ramp or bridge plate, shall have,
on the exterior of all doors complying when the door is open, at least 2 foot-
with this section unless all cars and candles of illumination measured on
doors are accessible and are not the step tread, ramp, bridge plate or
marked by the access symbol (see fig. lift platform.
6). Appropriate signage shall also indi- (b) The doorways of cars not oper-
cate which accessible doors are adja- ating at lighted station platforms shall
cent to an accessible restroom, if appli- have outside lights which, when the
cable. door is open, provide at least 1 foot-
[56 FR 45756, Sept. 6, 1991, as amended at 58 candle of illumination on the station
FR 63103, Nov. 30, 1993; 76 FR 57939, Sept. 19, platform surface for a distance of 3 feet
2011] perpendicular to all points on the bot-
tom step tread edge. Such lights shall
§ 38.115 Interior circulation, handrails be shielded to protect the eyes of enter-
and stanchions. ing and exiting passengers.
(a) Where provided, handrails or stan-
chions within the passenger compart- § 38.121 Public information system.
ment shall be placed to permit suffi- (a) Each car shall be equipped with a
cient turning and maneuvering space public address system permitting
for wheelchairs and other mobility aids transportation system personnel, or re-
to reach a seating location, complying corded or digitized human speech mes-
with § 38.125(d) of this part, from an ac- sages, to announce stations and pro-
cessible entrance. The diameter or vide other passenger information. Al-
width of the gripping surface of inte- ternative systems or devices which pro-
rior handrails and stanchions shall be vide equivalent access are also per-
11⁄4 inches to 11⁄2 inches or shall provide mitted.
an equivalent gripping surface. Hand- (b) [Reserved]
rails shall be placed to provide a min-
imum 11⁄2 inches knuckle clearance § 38.123 Restrooms.
from the nearest adjacent surface. (a) If a restroom is provided for the
(b) Where provided, handrails and general public, and an accessible rest-
stanchions shall be sufficient to permit room is required by § 38.111 (a) and (e)
safe boarding, on-board circulation, of this part, it shall be designed so as
seating and standing assistance, and to allow a person using a wheelchair or
alighting by persons with disabilities. mobility aid to enter and use such rest-
(c) At entrances equipped with steps, room as specified in paragraphs (a) (1)
handrails or stanchions shall be pro- through (5) of this section.
vided in the entrance to the car in a (1) The minimum clear floor area
configuration which allows passengers shall be 35 inches by 60 inches. Perma-
to grasp such assists from outside the nently installed fixtures may overlap
car while starting to board, and to con- this area a maximum of 6 inches, if the
tinue using such assists throughout the lowest portion of the fixture is a min-
boarding process, to the extent per- imum of 9 inches above the floor, and
mitted by part 231 of this title. may overlap a maximum of 19 inches, if
the lowest portion of the fixture is a
§ 38.117 Floors, steps and thresholds. minimum of 29 inches above the floor.
(a) Floor surfaces on aisles, step Fixtures shall not interfere with access
treads and areas where wheelchair and to and use of the water closet. Fold-
mobility aid users are to be accommo- down or retractable seats or shelves
dated shall be slip-resistant. may overlap the clear floor space at a
(b) All step edges and thresholds lower height provided they can be eas-
shall have a band of color(s) running ily folded up or moved out of the way.
the full width of the step or threshold (2) The height of the water closet
which contrasts from the step tread shall be 17 inches to 19 inches measured
515
to the top of the toilet seat. Seats shall borne device. The access systems or de-
not be sprung to return to a lifted posi- vices used at a station to which section
tion. 37.42 applies must permit compliance
(3) A grab bar at least 24 inches long with that section.
shall be mounted behind the water (b) Car Lift—(1) Design load. The de-
closet, and a horizontal grab bar at sign load of the lift shall be at least 600
least 40 inches long shall be mounted pounds. Working parts, such as cables,
on at least one side wall, with one end pulleys, and shafts, which can be ex-
not more than 12 inches from the back pected to wear, and upon which the lift
wall, at a height between 33 inches and depends for support of the load, shall
36 inches above the floor. have a safety factor of at least six,
(4) Faucets and flush controls shall based on the ultimate strength of the
be operable with one hand and shall material. Nonworking parts, such as
not require tight grasping, pinching, or platform, frame, and attachment hard-
twisting of the wrist. The force re- ware which would not be expected to
quired to activate controls shall be no wear, shall have a safety factor of at
greater than 5 lbf (22.2 N). Controls for least three, based on the ultimate
flush valves shall be mounted no more strength of the material.
than 44 inches above the floor.
(2) Controls—(i) Requirements. The
(5) Doorways on the end of the enclo-
sure, opposite the water closet, shall controls shall be interlocked with the
have a minimum clear opening width car brakes, propulsion system, or door,
of 32 inches. Doorways on the side wall or shall provide other appropriate
shall have a minimum clear opening mechanisms or systems, to ensure that
width of 39 inches. Door latches and the car cannot be moved when the lift
hardware shall be operable with one is not stowed and so the lift cannot be
hand and shall not require tight grasp- deployed unless the interlocks or sys-
ing, pinching, or twisting of the wrist. tems are engaged. The lift shall deploy
(b) Restrooms required to be acces- to all platform levels normally encoun-
sible shall be in close proximity to at tered in the operating environment.
least one seating location for persons Where provided, each control for de-
using mobility aids complying with ploying, lowering, raising, and stowing
§ 38.125(d) of this part and shall be con- the lift and lowering the roll-off bar-
nected to such a space by an unob- rier shall be of a monetary contact
structed path having a minimum width type requiring continuous manual pres-
of 32 inches. sure by the operator and shall not
allow improper lift sequencing when
§ 38.125 Mobility aid accessibility. the lift platform is occupied. The con-
(a)(1) General. All intercity rail cars, trols shall allow reversal of the lift op-
other than level entry cars, required to eration sequence, such as raising or
be accessible by §§ 38.111 (a) and (e) of lowering a platform that is part way
this subpart shall provide a level- down, without allowing an occupied
change mechanism or boarding device platform to fold or retract into the
(e.g., lift, ramp or bridge plate) com- stowed position.
plying with either paragraph (b) or (c) (ii) Exception. Where physical or safe-
of this section and sufficient clear- ty constraints prevent the deployment
ances to permit a wheelchair or other at some stops of a lift having its long
mobility aid user to reach a seating lo- dimension perpendicular to the car
cation complying with paragraph (d) of axis, the transportation entity may
this section. specify a lift which is designed to de-
(2) Exception. If level-entry boarding, ploy with its long dimension parallel to
portable or platform lifts, ramps or the car axis and which pivots into or
bridge plates meeting the applicable out of the car while occupied (i.e., ‘‘ro-
requirements of this section are pro- tary lift’’). The requirements of para-
vided on station platforms or other graph (b)(2)(i) of this section prohib-
stops required to be accessible, or iting the lift from being stowed while
mini-high platforms complying with occupied shall not apply to a lift design
§ 38.113(d) are provided, the car is not of this type if the stowed position is
required to be equipped with a car- within the passenger compartment and
516
the lift is intended to be stowed while automatically engage, and remain

occupied. raised, closed, or engaged at all times
(iii) Exception. The brake or propul- that the lift platform is more than 3
sion system interlocks requirement inches above the station platform and
does not apply to platform mounted or the lift is occupied. Alternatively, a
portable lifts provided that a mechan- barrier or system may be raised, low-
ical, electrical or other system oper- ered, opened, closed, engaged or dis-
ates to ensure that cars do not move engaged by the lift operator provided
when the lift is in use. an interlock or inherent design feature
(3) Emergency operation. The lift shall prevents the lift from rising unless the
incorporate an emergency method of barrier is raised or closed or the sup-
deploying, lowering to ground or sta- plementary system is engaged.
tion platform level with a lift occu- (6) Platform surface. The lift platform
pant, and raising and stowing the surface shall be free of any protrusions
empty lift if the power to the lift fails. over 1⁄4 inch high and shall be slip re-
No emergency method, manual or oth- sistant. The lift platform shall have a
erwise, shall be capable of being oper- minimum clear width of 281⁄2 inches at
ated in a manner that could be haz- the platform, a minimum clear width
ardous to the lift occupant or to the of 30 inches measured from 2 inches
operator when operated according to above the lift platform surface to 30
manufacturer’s instructions, and shall inches above the surface, and a min-
not permit the platform to be stowed imum clear length of 48 inches meas-
or folded when occupied, unless the lift ured from 2 inches above the surface of
is a rotary lift and is intended to be the platform to 30 inches above the sur-
stowed while occupied. face. (See Fig. 1.)
(4) Power or equipment failure. Plat- (7) Platform gaps. Any openings be-
forms stowed in a vertical position, and tween the lift platform surface and the
deployed platforms when occupied, raised barriers shall not exceed 5⁄8 inch
shall have provisions to prevent their wide. When the lift is at car floor
deploying, falling, or folding any faster height with the inner barrier (if appli-
than 12 inches/second or their dropping cable) down or retracted, gaps between
of an occupant in the event of a single the forward lift platform edge and car
failure of any load carrying compo- floor shall not exceed 1⁄2 inch hori-
nent. zontally and 5⁄8 inch vertically.
(5) Platform barriers. The lift platform (8) Platform entrance ramp. The en-
shall be equipped with barriers to pre- trance ramp, or loading-edge barrier
vent any of the wheels of a wheelchair used as a ramp, shall not exceed a slope
or mobility aid from rolling off the lift of 1:8, when measured on level ground,
during its operation. A movable barrier for a maximum rise of 3 inches, and the
or inherent design feature shall pre- transition from station platform to
vent a wheelchair or mobility aid from ramp may be vertical without edge
rolling off the edge closest to the car treatment up to 1⁄4 inch. Thresholds be-
until the lift is in its fully raised posi- tween 1⁄4 inch and 1⁄2 inch high shall be
tion. Each side of the lift platform beveled with a slope no greater than
which, in its raised position, extends 1:2.
beyond the car shall have a barrier a (9) Platform deflection. The lift plat-
minimum 11⁄2 inches high. Such bar- form (not including the entrance ramp)
riers shall not interfere with maneu- shall not deflect more than 3 degrees
vering into or out of the car. The load- (exclusive of car roll) in any direction
ing-edge barrier (outer barrier) which between its unloaded position and its
functions as a loading ramp when the position when loaded with 600 pounds
lift is at ground or station platform applied through a 26 inch by 26 inch
level, shall be sufficient when raised or test pallet at the centroid of the lift
closed, or a supplementary system platform.
shall be provided, to prevent a power (10) Platform movement. No part of the
wheelchair or mobility aid from riding platform shall move at a rate exceed-
over or defeating it. The outer barrier ing 6 inches/second during lowering and
of the lift shall automatically rise or lifting an occupant, and shall not ex-
close, or a supplementary system shall ceed 12 inches/second during deploying
517
or stowing. This requirement does not inches and shall accommodate both
apply to the deployment or stowage cy- four-wheel and three-wheel mobility
cles of lifts that are manually deployed aids.
or stowed. The maximum platform hor- (3) Ramp threshold. The transition
izontal and vertical acceleration when from station platform to the ramp or
occupied shall be 0.3g. bridge plate and the transition from
(11) Boarding direction. The lift shall car floor to the ramp or bridge plate
permit both inboard and outboard fac- may be vertical without edge treat-
ing of wheelchairs and mobility aids. ment up to 1⁄4 inch. Changes in level be-
(12) Use by standees. Lifts shall ac- tween 1⁄4 inch and 1⁄2 inch shall be bev-
commodate persons using walkers, eled with a slope no greater than 1:2.
crutches, canes or braces or who other- (4) Ramp barriers. Each side of the
wise have difficulty using steps. The ramp or bridge plate shall have bar-
lift may be marked to indicate a pre- riers at least 2 inches high to prevent
ferred standing position. mobility aid wheels from slipping off.
(13) Handrails. Platforms on lifts (5) Slope. Ramps or bridge plates shall
shall be equipped with handrails, on have the least slope practicable. If the
two sides, which move in tandem with height of the vehicle floor, under 50%
the lift, and which shall be graspable passenger load, from which the ramp is
and provide support to standees deployed is 3 inches or less above the
throughout the entire lift operation. station platform a maximum slope of
Handrails shall have a usable compo- 1:4 is permitted; if the height of the ve-
nent at least 8 inches long with the hicle floor, under 50% passenger load,
lowest portion a minimum 30 inches from which the ramp is deployed is 6
above the platform and the highest inches or less, but more than 3 inches,
portion a maximum 38 inches above the above the station platform a maximum
platform. The handrails shall be capa- slope of 1:6 is permitted; if the height
ble of withstanding a force of 100 of the vehicle floor, under 50% pas-
pounds concentrated at any point on senger load, from which the ramp is de-
the handrail without permanent defor- ployed is 9 inches or less, but more
mation of the rail or its supporting than 6 inches, above the station plat-
structure. The handrail shall have a form a maximum slope of 1:8 is per-
cross-sectional diameter between 11⁄4 mitted; if the height of the vehicle
inches and 11⁄2 inches or shall provide floor, under 50% passenger load, from
an equivalent grasping surface, and which the ramp is deployed is greater
have eased edges with corner radii of than 9 inches above the station plat-
not less than 1⁄8 inch. Handrails shall be form a slope of 1:12 shall be achieved.
placed to provide a minimum 11⁄2 inches Folding or telescoping ramps are per-
knuckle clearance from the nearest admitted provided they meet all struc-
jacent surface. Handrails shall not tural requirements of this section.
interfere with wheelchair or mobility (6) Attachment—(i) Requirement. When
aid maneuverability when entering or in use for boarding or alighting, the
leaving the car. ramp or bridge plate shall be attached
(c) Car ramp or bridge plate—(1) Design to the vehicle, or otherwise prevented
load. Ramps or bridge plates 30 inches from moving such that it is not subject
or longer shall support a load of 600 to displacement when loading or un-
pounds, placed at the centroid of the loading a heavy power mobility aid and
ramp or bridge plate distributed over that any gaps between vehicle and
an area of 26 inches by 26 inches, with ramp or bridge plate, and station plat-
a safety factor of at least 3 based on form and ramp or bridge plate, shall
the ultimate strength of the material. not exceed 5⁄8 inch.
Ramps or bridge plates shorter than 30 (ii) Exception. Ramps or bridge plates
inches shall support a load of 300 which are attached to, and deployed
pounds. from, station platforms are permitted
(2) Ramp surface. The ramp or bridge in lieu of car devices provided they
plate surface shall be continuous and meet the displacement requirements of
slip resistant, shall not have protru- paragraph (c)(6)(i) of this section.
sions from the surface greater than 1⁄4 (7) Stowage. A compartment, secure-
inch high, shall have a clear width of 30 ment system, or other appropriate
518
method shall be provided to ensure (3) Other spaces. Spaces for individ-
that stowed ramps or bridge plates, in- uals who wish to transfer shall include
cluding portable ramps or bridge plates a regular coach seat or dining car
stowed in the passenger area, do not booth or table seat and space to fold
impinge on a passenger’s wheelchair or and store the passenger’s wheelchair.
mobility aid or pose any hazard to pas-
sengers in the event of a sudden stop.
FR 63103, Nov. 30, 1993; 76 FR 57939, Sept. 19,
(8) Handrails. If provided, handrails 2011]
shall allow persons with disabilities to
grasp them from outside the car while § 38.127 Sleeping compartments.
starting to board, and to continue to
use them throughout the boarding (a) Sleeping compartments required
process, and shall have the top between to be accessible shall be designed so as
30 inches and 38 inches above the ramp to allow a person using a wheelchair or
surface. The handrails shall be capable mobility aid to enter, maneuver within
of withstanding a force of 100 pounds and approach and use each element
concentrated at any point on the hand- within such compartment. (See Fig. 5.)
rail without permanent deformation of (b) Each accessible compartment
the rail or its supporting structure. shall contain a restroom complying
The handrail shall have a cross-sec- with § 38.123(a) which can be entered di-
tional diameter between 11⁄4 inches and rectly from such compartment.
11⁄2 inches or shall provide an equiva- (c) Controls and operating mecha-
lent grasping surface, and have eased nisms (e.g., heating and air condi-
edges with corner radii of not less than tioning controls, lighting controls, call
1⁄8 inch. Handrails shall not interfere buttons, electrical outlets, etc.) shall
with wheelchair or mobility aid ma- be mounted no more than 48 inches,
neuverability when entering or leaving and no less than 15 inches, above the
the car. floor and shall have a clear floor area
(d) Seating—(1) Requirements. All directly in front a minimum of 30
intercity rail cars required to be acces- inches by 48 inches. Controls and oper-
sible by §§ 38.111 (a) and (e) of this sub- ating mechanisms shall be operable
part shall provide at least one, but not with one hand and shall not require
more than two, mobility aid seating lo- tight grasping, pinching, or twisting of
cation(s) complying with paragraph the wrist.
(d)(2) of this section; and at least one,
but not more than two, seating loca- Subpart G—Over-the-Road Buses
tion(s) complying with paragraph (d)(3) and Systems
of this section which adjoin or overlap
an accessible route with a minimum § 38.151 General.
clear width of 32 inches.
(a) New, used and remanufactured
(2) Wheelchair or mobility aid spaces.
over-the-road buses, to be considered
Spaces for persons who wish to remain
accessible by regulations in part 37 of
in their wheelchairs or mobility aids
this title, shall comply with this sub-
shall have a minimum clear floor space
part.
48 inches by 30 inches. Such spaces
shall adjoin, and may overlap, an ac- (b) Over-the-road buses covered by
cessible path. Not more than 6 inches § 37.7 (c) of this title shall comply with
of the required clear floor space may be § 38.23 and this subpart.
accommodated for footrests under an-
§ 38.153 Doors, steps and thresholds.
other seat provided there is a minimum
of 9 inches from the floor to the lowest (a) Floor surfaces on aisles, step
part of the seat overhanging the space. treads and areas where wheelchair and
Seating spaces may have fold-down or mobility aid users are to be accommo-
removable seats to accommodate other dated shall be slip-resistant.
passengers when a wheelchair or mobil- (b) All step edges shall have a band of
ity aid user is not occupying the area, color(s) running the full width of the
provided the seats, when folded up, do step which contrasts from the step
not obstruct the clear floor space pro- tread and riser, either dark-on-light or
vided (See Fig. 2). light-on-dark.
519
(c)(1) Doors shall have a minimum assistance, and alighting by persons

clear width when open of 30 inches (760 with disabilities.
mm), measured from the lowest step to
a height of at least 48 inches (1220 mm), § 38.157 Lighting.
from which point they may taper to a (a) Any stepwell or doorway imme-
minimum width of 18 inches (457 mm). diately adjacent to the driver shall
The clear width may be reduced by a have, when the door is open, at least 2
maximum of 4 inches (100 mm) by pro- foot-candles of illumination measured
trusions of hinges or other operating on the step tread.
mechanisms. (b) The vehicle doorway shall have
(2) Exception. Where compliance with outside light(s) which, when the door is
the door width requirement of para- open, provide at least 1 foot-candle of
graph (c)(1) of this section is not fea- illumination on the pathway to the
sible, the minimum door width shall be door for a distance of 3 feet (915 mm) to
27 in (685 mm). the bottom step tread or lift outer
(d) The overhead clearance between edge. Such light(s) shall be shielded to
the top of the lift door opening and the protect the eyes of entering and exiting
sill shall be the maximum practicable passengers.
but not less than 65 inches (1651 mm). [56 FR 45756, Sept. 6, 1991, as amended at 63
FR 51698, 51702, Sept. 28, 1998]
FR 51698, 51702, Sept. 28, 1998] § 38.159 Mobility aid accessibility.
§ 38.155 Interior circulation, handrails (a)(1) General. All vehicles covered by
and stanchions. this subpart shall provide a level-
change mechanism or boarding device
(a) Handrails and stanchions shall be (e.g., lift or ramp) complying with
provided in the entrance to the vehicle paragraph (b) or (c) of this section and
in a configuration which allows pas- sufficient clearances to permit a wheel-
sengers to grasp such assists from out- chair or other mobility aid user to
side the vehicle while starting to reach a securement location. At least
board, and to continue using such two securement locations and devices,
handrails or stanchions throughout the complying with paragraph (d) of this
boarding process. Handrails shall have section, shall be provided.
a cross-sectional diameter between 11⁄4 (2) Exception. If portable or station-
inches and 11⁄2 inches or shall provide based lifts, ramps or bridge plates
an equivalent grasping surface, and meeting the applicable requirements of
have eased edges with corner radii of this section are provided at stations or
not less than 1⁄8 inch. Handrails shall be other stops required to be accessible
placed to provide a minimum 11⁄2 inches under regulations issued by the Depart-
knuckle clearance from the nearest ad- ment of Transportation, the bus is not
jacent surface. Where on-board fare required to be equipped with a vehicle-
collection devices are used, a hori- borne device.
zontal passenger assist shall be located (b) Vehicle lift—(1) Design load. The
between boarding passengers and the design load of the lift shall be at least
fare collection device and shall prevent 600 pounds (2665 N). Working parts,
passengers from sustaining injuries on such as cables, pulleys, and shafts,
the fare collection device or windshield which can be expected to wear, and
in the event of a sudden deceleration. upon which the lift depends for support
Without restricting the vestibule of the load, shall have a safety factor
space, the assist shall provide support of at least six, based on the ultimate
for a boarding passenger from the door strength of the material. Nonworking
through the boarding procedure. Pas- parts, such as platform, frame and at-
sengers shall be able to lean against tachment hardware which would not be
the assist for security while paying expected to wear, shall have a safety
fares. factor of at least three, based on the
(b) Where provided within passenger ultimate strength of the material.
compartments, handrails or stanchions (2) Controls—(i) Requirements. The
shall be sufficient to permit safe on- controls shall be interlocked with the
board circulation, seating and standing vehicle brakes, transmission, or door,
520
or shall provide other appropriate (5) Platform barriers. The lift platform
mechanisms or systems, to ensure that shall be equipped with barriers to pre-
the vehicle cannot be moved when the vent any of the wheels of a wheelchair
lift is not stowed and so the lift cannot or mobility aid from rolling off the
be deployed unless the interlocks or platform during its operation. A mov-
systems are engaged. The lift shall de- able barrier or inherent design feature
ploy to all levels (i.e., ground, curb, shall prevent a wheelchair or mobility
and intermediate positions) normally aid from rolling off the edge closest to
encountered in the operating environ- the vehicle until the platform is in its
ment. Where provided, each control for fully raised position. Each side of the
deploying, lowering, raising, and stow- lift platform which extends beyond the
ing the lift and lowering the roll-off vehicle in its raised position shall have
barrier shall be of a momentary con- a barrier a minimum 11⁄2 inches (13 mm)
tact type requiring continuous manual high. Such barriers shall not interfere
pressure by the operator and shall not with maneuvering into or out of the
allow improper lift sequencing when aisle. The loading-edge barrier (outer
the lift platform is occupied. The con- barrier) which functions as a loading
trols shall allow reversal of the lift op- ramp when the lift is at ground level,
eration sequence, such as raising or shall be sufficient when raised or
lowering a platform that is part way closed, or a supplementary system
down, without allowing an occupied shall be provided, to prevent a power
platform to fold or retract into the wheelchair or mobility aid from riding
stowed position. over or defeating it. The outer barrier
(ii) Exception. Where the lift is de- of the lift shall automatically raise or
signed to deploy with its long dimen- close, or a supplementary system shall
sion parallel to the vehicle axis and automatically engage, and remain
which pivots into or out of the vehicle raised, closed, or engaged at all times
while occupied (i.e., ‘‘rotary lift’’), the that the platform is more than 3 inches
requirements of this paragraph (b)(2) (75 mm) above the roadway or sidewalk
prohibiting the lift from being stowed and the platform is occupied. Alter-
while occupied shall not apply if the natively, a barrier or system may be
stowed position is within the passenger raised, lowered, opened, closed, en-
compartment and the lift is intended gaged, or disengaged by the lift oper-
to be stowed while occupied. ator, provided an interlock or inherent
(3) Emergency operation. The lift shall design feature prevents the lift from
incorporate an emergency method of rising unless the barrier is raised or
deploying, lowering to ground level closed or the supplementary system is
with a lift occupant, and raising and engaged.
stowing the empty lift if the power to (6) Platform surface. The platform sur-
the lift fails. No emergency method, face shall be free of any protrusions of
manual or otherwise, shall be capable 1⁄4 inch (6.5 mm) high and shall be slip
of being operated in a manner that resistant. The platform shall have a

could be hazardous to the lift occupant minimum clear width of 281⁄2 inches (725
or to the operator when operated ac- mm) at the platform, a minimum clear
cording to manufacturer’s instructions, width of 30 inches (760 mm) measured
and shall not permit the platform to be from 2 inches (50 mm) above the plat-
stowed or folded when occupied, unless form surface to 30 inches (760 mm)
the lift is a rotary lift and is intended above the platform, and a minimum
to be stowed while occupied. clear length of 48 inches (1220 mm)
(4) Power or equipment failure. Plat- measured from 2 inches (50 mm) above
forms stowed in a vertical position, and the surface of the platform to 30 inches
deployed platforms when occupied, (760 mm) above the surface of the plat-
shall have provisions to prevent their form. (See Figure 1 to this part.)
deploying, falling, or folding any faster (7) Platform gaps. Any openings be-
than 12 inches/second (305 mm/sec) or tween the platform surface and the
their dropping of an occupant in the raised barriers shall not exceed 5⁄8 inch
event of a single failure of any load (16 mm) in width. When the platform is
carrying component. at vehicle floor height with the inner
521
barrier (if applicable) down or re- 8 inches (200 mm) long with the lowest
tracted, gaps between the forward lift portion a minimum 30 inches (760 mm)
platform edge and the vehicle floor above the platform and the highest
shall not exceed 1⁄2 inch (13 mm) hori- portion a maximum 38 inches (965 mm)
zontally and 5⁄8 inch (16 mm) vertically. above the platform. The handrails shall
Platforms on semi-automatic lifts may be capable of withstanding a force of
have a hand hold not exceeding 11⁄2 100 pounds (445 N) concentrated at any
inches (28 mm) by 41⁄2 inches (113 mm) point on the handrail without perma-
located between the edge barriers. nent deformation of the rail or its sup-
(8) Platform entrance ramp. The en- porting structure. The handrail shall
trance ramp, or loading-edge barrier have a cross-sectional diameter be-
used as a ramp, shall not exceed a slope tween 11⁄4 inches (32 mm) and 11⁄2 inches
of 1:8, measured on level ground, for a (38 mm) or shall provide an equivalent

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CFR 2019 Title49 Vol1

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Title 49

Revised as of October 1, 2019

Containing a codification of documents

Published by the Office of the Federal Register

Legal Status and Use of Seals and Logos

Use of ISBN Prefix

U.S. GOVERNMENT PUBLISHING OFFICE

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

Phone: toll-free (866) 512-1800; DC area (202) 512-1800

SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPORTATION ....... 3

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

Alphabetical List of Agencies Appearing in the CFR ......................... 721

List of CFR Sections Affected ............................................................. 731

To cite the regulations in

lishing in the CFR are also included in this volume.

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

SUBTITLE A—OFFICE OF THE SECRETARY OF TRANSPOR-

assistance programs ............................................. 245

ards, procedures, and limitations as ‘‘Administrator of the National High-

(h) ‘‘Pipeline and Hazardous Mate- (9) Providing effective management

(8) Overseeing the Department’s Transportation for Policy. This Office is

(2) The Office of Human Resource Highway Traffic Safety Administra-

(17) Administrator of the Research with the Secretary of Housing and

Professional Positions (ST) (5 U.S.C. classified information to industry per-

administered by any office or Oper- (2) OST-sponsored interagency com-

ment) committees affecting more than portation on various interagency

tional Environmental Policy Act of Secretary pertaining to aircraft with

foreign air transportation) delegated to (Pub. L. 98–443) [15 U.S.C. 1607(a)(4),

serve as the Department’s Alternate energy, environmental, disability, and

Administrator in the performance re- Office of Budget and Program Perform-

(b) Exercise day-to-day operating eral Claims Collection Standards, 31

(k) Exercise the Secretary’s author- fully implemented by the Department;

with respect to such authorities re- additional guidance must be consistent

cable Federal civil rights require- Actions to Address Environmental Jus-

Critical Infrastructure Identification, (n) Lead departmental efforts for all

services for, or in cooperation with, the tions of discrimination arising in or re-

§ 1.72 Structure. (c) Exercise the authority of the Sec-

of discrimination arising in or relating ment or such officials’ principal assist-

the Secretary of Transportation: Pol- trict Commanders or other comparable

tive Orders, or delegations in this sub- quest. If the Administrator believes

the Secretary by 49 U.S.C. 40119(b), as Except as otherwise specifically pro-

may redelegate and authorize succes- forts to increase the environmental

program, improving connections to hibition on discrimination by private

shipment of hazardous materials by eral-aid roads and other surface trans-

matters within the primary responsi- (7) Prescribe regulations, as nec-

taining to highway safety and highway Agencies Appropriations Act, 1998

railroads to operate without approved use of historic resources for public

ing those provisions that pertain to States.

ministrator of General Services with thorities, and powers of the Secretary

§ 1.94 The National Highway Traffic § 1.95 Delegations to the National

study of optimization of biogas used in Rulemaking on Visibility of Agricul-

(3) Section 32201, Crashworthiness § 1.97 Delegations to the Pipeline and

awareness and emergency prepared- Regulatory Certainty, and Job Cre-

pipelines, motor carriers, and rail- Safety Council.

§ 1.99 Delegations to the Research and (5) Advocate Department of Trans-

AUTHORITY: 49 U.S.C. 102(e). Subpart C—Procedures

(2) The General Counsel. or for a permanent or temporary ex-

Subpart C—Procedures § 5.25 Petitions for extension of time to

§ 5.33 Adoption of final rules. verse comment within the specified

6.1 Purpose of these rules.

Subpart C—Procedures for Considering § 6.5 Proceedings covered.

[48 FR 1070, Jan. 10, 1983, as amended at 62

employees shall be included on a pro- of the administrative record, as a

§ 6.25 Answer to application. § 6.31 Further proceedings.