Last updated on May 3rd, 2024 at 01:22 am
Title 36—Parks, Forests, and Public Property–Volume 3
CHAPTER III—CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY
PARTS 300-311 [RESERVED]
PART 312—PROHIBITION OF DISCRIMINATORY PRACTICES IN WATER RESOURCE DEVELOPMENT PROJECTS
§ 312.1 Areas covered.
The regulation covered in this part shall be applicable to all water resource project lands under the supervision of the Secretary of the Army not covered in parts 311 and 326, of this title.
§ 312.2 Discriminatory practices prohibited.
All project land and water areas which are open to the public shall be available for use and enjoyment by the public without regard to race, creed, color or national origin. Each lessee or licensee of a project area under lease or license providing for a public or quasi-public use, including group camp activities, and each concessionaire of a lessee or licensee providing a service to the public including facilities and accommodations, shall not discriminate against any person or persons because of race, creed, color or national origin in the conduct of its operations under the lease, license or concession agreement.
PART 327—RULES AND REGULATIONS GOVERNING PUBLIC USE OF WATER RESOURCE DEVELOPMENT PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS
§ 327.0 Applicability.
The regulations covered in this part 327 shall be applicable to water resources development projects, completed or under construction, administered by the Chief of Engineers, and to those portions of jointly administered water resources development projects which are under the administrative jurisdiction of the Chief of Engineers. All other Federal, state and local laws and regulations remain in full force and effect where applicable to those water resources development projects.
§ 327.1 Policy.
(a) It is the policy of the Secretary of the Army, acting through the Chief of Engineers, to manage the natural, cultural and developed resources of each project in the public interest, providing the public with safe and healthful recreational opportunities while protecting and enhancing these resources.
(b) Unless otherwise indicated in this part, the term “District Commander” shall include the authorized representatives of the District Commander.
(c) The term “project” or “water resources development project” refers to the water areas of any water resources development project administered by the Chief of Engineers, without regard to ownership of underlying land, to all lands owned in fee by the Federal Government and to all facilities therein or thereon of any such water resources development project.
(d) All water resources development projects open for public use shall be available to the public without regard to sex, race, color, creed, age, nationality or place of origin. No lessee, licensee, or concessionaire providing a service to the public shall discriminate against any person because of sex, race, creed, color, age, nationality or place of origin in the conduct of the operations under the lease, license or concession contract.
(e) In addition to the regulations in this part 327, all applicable Federal, state and local laws and regulations remain in full force and effect on project lands or waters which are outgranted by the District Commander by lease, license or other written agreement.
(f) The regulations in this part 327 shall be deemed to apply to those lands and waters which are subject to treaties and Federal laws and regulations concerning the rights of Indian Nations and which lands and waters are incorporated, in whole or in part, within water resources development projects administered by the Chief of Engineers, to the extent that the regulations in this part 327 are not inconsistent with such treaties and Federal laws and regulations.
(g) Any violation of any section of this part 327 shall constitute a separate violation for each calendar day in which it occurs.
(h) For the purposes of this part 327, the operator of any vehicle, vessel or aircraft as described in this part, shall be presumed to be responsible for its use on project property. In the event where an operator cannot be determined, the owner of the vehicle, vessel, or aircraft, whether attended or unattended, will be presumed responsible. Unless proven otherwise, such presumption will be sufficient to issue a citation for the violation of regulations applicable to the use of such vehicle, vessel or aircraft as provided for in § 327.25.
(i) For the purposes of this part 327, the registered user of a campsite, picnic area, or other facility shall be presumed to be responsible for its use. Unless proven otherwise, such presumption will be sufficient to issue a citation for the violation of regulations applicable to the use of such facilities as provided for in § 327.25.
§ 327.2 Vehicles.
(a) This section pertains to all vehicles, including, but not limited to, automobiles, trucks, motorcycles, mini-bikes, snowmobiles, dune buggies, all-terrain vehicles, and trailers, campers, bicycles, or any other such equipment.
(b) Vehicles shall not be parked in violation of posted restrictions and regulations, or in such a manner as to obstruct or impede normal or emergency traffic movement or the parking of other vehicles, create a safety hazard, or endanger any person, property or environmental feature. Vehicles so parked are subject to removal and impoundment at the owner’s expense.
(c) The operation and/or parking of a vehicle off authorized roadways is prohibited except at locations and times designated by the District Commander. Taking any vehicle through, around or beyond a restrictive sign, recognizable barricade, fence, or traffic control barrier is prohibited.
(d) Vehicles shall be operated in accordance with posted restrictions and regulations.
(e) No person shall operate any vehicle in a careless, negligent or reckless manner so as to endanger any person, property or environmental feature.
(f) At designated recreation areas, vehicles shall be used only to enter or leave the area or individual sites or facilities unless otherwise posted.
(g) Except as authorized by the District Commander, no person shall operate any motorized vehicle without a proper and effective exhaust muffler as defined by state and local laws, or with an exhaust muffler cutout open, or in any other manner which renders the exhaust muffler ineffective in muffling the sound of engine exhaust.
(h) Vehicles shall be operated in accordance with applicable Federal, state and local laws, which shall be regulated by authorized enforcement officials as prescribed in § 327.26.
§ 327.3 Vessels.
(a) This section pertains to all vessels or watercraft, including, but not limited to, powerboats, cruisers, houseboats, sailboats, rowboats, canoes, kayaks, personal watercraft, and any other such equipment capable of navigation on water or ice, whether in motion or at rest.
(b) The placement and/or operation of any vessel or watercraft for a fee or profit upon project waters or lands is prohibited except as authorized by permit, lease, license, or concession contract with the Department of the Army. This paragraph shall not apply to the operation of commercial tows or passenger carrying vessels not based at a Corps project which utilize project waters as a link in continuous transit over navigable waters of the United States.
(c) Vessels or other watercraft may be operated on the project waters, except in prohibited or restricted areas, in accordance with posted regulations and restrictions, including buoys. All vessels or watercraft so required by applicable Federal, state and local laws shall display an appropriate registration on board whenever the vessel is on project waters.
(d) No person shall operate any vessel or other watercraft in a careless, negligent, or reckless manner so as to endanger any person, property, or environmental feature.
(e) All vessels, when on project waters, shall have safety equipment, including personal flotation devices, on board in compliance with U.S. Coast Guard boating safety requirements and in compliance with boating safety laws issued and enforced by the state in which the vessel is located. Owners or operators of vessels not in compliance with this section may be requested to remove the vessel immediately from project waters until such time as items of non-compliance are corrected.
(f) Unless otherwise permitted by Federal, state or local law, vessels or other watercraft, while moored in commercial facilities, community or corporate docks, or at any fixed or permanent mooring point, may only be used for overnight occupancy when such use is incidental to recreational boating. Vessels or other watercraft are not to be used as a place of habitation or residence.
(g) Water skis, parasails, ski-kites and similar devices are permitted in nonrestricted areas except that they may not be used in a careless, negligent, or reckless manner so as to endanger any person, property or environmental feature.
(h) Vessels shall not be attached or anchored to structures such as locks, dams, buoys or other structures unless authorized by the District Commander. All vessels when not in actual use shall be removed from project lands and waters unless securely moored or stored at designated areas approved by the District Commander. The placing of floating or stationary mooring facilities on, adjacent to, or interfering with a buoy, channel marker or other navigational aid is prohibited.
(i) The use at a project of any vessel not constructed or maintained in compliance with the standards and requirements established by the Federal Safe Boating Act of 1971 (Pub. L. 92-75, 85 Stat. 213), or promulgated pursuant to such act, is prohibited.
(j) Except as authorized by the District Commander, no person shall operate any vessel or watercraft without a proper and effective exhaust muffler as defined by state and local laws, or with an exhaust muffler cutout open, or in any other manner which renders the exhaust muffler ineffective in muffling the sound of engine exhaust.
(k) All vessels or other watercraft shall be operated in accordance with applicable Federal, state and local laws, which shall be regulated by authorized enforcement officials as prescribed in § 327.26.
§ 327.4 Aircraft.
(a) This section pertains to all aircraft including, but not limited to, airplanes, seaplanes, helicopters, ultra-light aircraft, motorized hang gliders, hot air balloons, any non-powered flight devices or any other such equipment.
(b) The operation of aircraft on project lands at locations other than those designated by the District Commander is prohibited. This provision shall not be applicable to aircraft engaged on official business of Federal, state or local governments or law enforcement agencies, aircraft used in emergency rescue in accordance with the directions of the District Commander or aircraft forced to land due to circumstances beyond the control of the operator.
(c) No person shall operate any aircraft while on or above project waters or project lands in a careless, negligent or reckless manner so as to endanger any person, property or environmental feature.
(d) Nothing in this section bestows authority to deviate from rules and regulations or prescribed standards of the appropriate State Aeronautical Agency, or the Federal Aviation Administration, including, but not limited to, regulations and standards concerning pilot certifications or ratings, and airspace requirements.
(e) Except in extreme emergencies threatening human life or serious property loss, the air delivery or retrieval of any person, material or equipment by parachute, balloon, helicopter or other means onto or from project lands or waters without written permission of the District Commander is prohibited.
(f) In addition to the provisions in paragraphs (a) through (e) of this section, seaplanes are subject to the following restrictions:
(1) Such use is limited to aircraft utilized for water landings and takeoff, in this part called seaplanes, at the risk of owner, operator and passenger(s).
(2) Seaplane operations contrary to the prohibitions or restrictions established by the District Commander (pursuant to part 328 of this title) are prohibited. The responsibility to ascertain whether seaplane operations are prohibited or restricted is incumbent upon the person(s) contemplating the use of, or using, such waters.
(3) All operations of seaplanes while upon project waters shall be in accordance with U.S. Coast Guard navigation rules for powerboats or vessels and § 327.3.
(4) Seaplanes on project waters and lands in excess of 24 hours shall be securely moored at mooring facilities and at locations permitted by the District Commander. Seaplanes may be temporarily moored on project waters and lands, except in areas prohibited by the District Commander, for periods less than 24 hours providing:
(i) The mooring is safe, secure, and accomplished so as not to damage the rights of the Government or members of the public, and
(ii) The operator remains in the vicinity of the seaplane and reasonably available to relocate the seaplane if necessary.
(5) Commercial operation of seaplanes from project waters is prohibited without written approval of the District Commander following consultation with and necessary clearance from the Federal Aviation Administration (FAA) and other appropriate public authorities and affected interests.
(6) Seaplanes may not be operated at Corps projects between sunset and sunrise unless approved by the District Commander.
§ 327.5 Swimming.
(a) Swimming, wading, snorkeling or scuba diving at one’s own risk is permitted, except at launching sites, designated mooring points and public docks, or other areas so designated by the District Commander.
(b) An international diver down, or inland diving flag must be displayed during underwater activities.
(c) Diving, jumping or swinging from trees, bridges or other structures which cross or are adjacent to project waters is prohibited.
§ 327.6 Picnicking.
Picnicking and related day-use activities are permitted, except in those areas where prohibited by the District Commander.
§ 327.7 Camping.
(a) Camping is permitted only at sites and/or areas designated by the District Commander.
(b) Camping at one or more campsites at any one water resource project for a period longer than 14 days during any 30-consecutive-day period is prohibited without the written permission of the District Commander.
(c) The unauthorized placement of camping equipment or other items on a campsite and/or personal appearance at a campsite without daily occupancy for the purpose of reserving that campsite for future occupancy is prohibited.
(d) The digging or leveling of any ground or the construction of any structure without written permission of the District Commander is prohibited.
(e) Occupying or placement of any camping equipment at a campsite which is posted or otherwise marked or indicated as “reserved” without an authorized reservation for that site is prohibited.
§ 327.8 Hunting, fishing, and trapping.
(a) Hunting is permitted except in areas and during periods where prohibited by the District Commander.
(b) Trapping is permitted except in areas and during periods where prohibited by the District Commander.
(c) Fishing is permitted except in swimming areas, on boat ramps or other areas designated by the District Commander.
(d) Additional restrictions pertaining to these activities may be established by the District Commander.
(e) All applicable Federal, State and local laws regulating these activities apply on project lands and waters, and shall be regulated by authorized enforcement officials as prescribed in § 327.26.
§ 327.9 Sanitation.
(a) Garbage, trash, rubbish, litter, gray water, or any other waste material or waste liquid generated on the project and incidental to authorized recreational activities shall be either removed from the project or deposited in receptacles provided for that purpose. The improper disposal of such wastes, human and animal waste included, on the project is prohibited.
(b) It is a violation to bring onto a project any household or commercial garbage, trash, rubbish, debris, dead animals or litter of any kind for disposal or dumping without the written permission of the District Commander. For the purposes of this section, the owner of any garbage, trash, rubbish, debris, dead animals or litter of any kind shall be presumed to be responsible for proper disposal. Such presumption will be sufficient to issue a citation for violation.
(c) The spilling, pumping, discharge or disposal of contaminants, pollutants or other wastes, including, but not limited to, human or animal waste, petroleum, industrial and commercial products and by-products, on project lands or into project waters is prohibited.
(d) Campers, picnickers, and all other persons using a water resources development project shall keep their sites free of trash and litter during the period of occupancy and shall remove all personal equipment and clean their sites upon departure.
(e) The discharge or placing of sewage, galley waste, garbage, refuse, or pollutants into the project waters from any vessel or watercraft is prohibited.
§ 327.10 Fires.
(a) Gasoline and other fuels, except that which is contained in storage tanks of vehicles, vessels, camping equipment, or hand portable containers designed for such purpose, shall not be carried onto or stored on the project without written permission of the District Commander.
(b) Fires shall be confined to those areas designated by the District Commander, and shall be contained in fireplaces, grills, or other facilities designated for this purpose. Fires shall not be left unattended and must be completely extinguished prior to departure. The burning of materials that produce toxic fumes, including, but not limited to, tires, plastic and other floatation materials or treated wood products is prohibited. The District Commander may prohibit open burning of any type for environmental considerations.
(c) Improper disposal of lighted smoking materials, matches or other burning material is prohibited.
§ 327.11 Control of animals.
(a) No person shall bring or allow dogs, cats, or other pets into developed recreation areas or adjacent waters unless penned, caged, on a leash under six feet in length, or otherwise physically restrained. No person shall allow animals to impede or restrict otherwise full and free use of project lands and waters by the public. No person shall allow animals to bark or emit other noise which unreasonably disturbs other people. Animals and pets, except properly trained animals assisting those with disabilities (such as seeing-eye dogs), are prohibited in sanitary facilities, playgrounds, swimming beaches and any other areas so designated by the District Commander. Abandonment of any animal on project lands or waters is prohibited. Unclaimed or unattended animals are subject to immediate impoundment and removal in accordance with state and local laws.
(b) Persons bringing or allowing pets in designated public use areas shall be responsible for proper removal and disposal of any waste produced by these animals.
(c) No person shall bring or allow horses, cattle, or other livestock in camping, picnicking, swimming or other recreation areas or on trails except in areas designated by the District Commander.
(d) Ranging, grazing, watering or allowing livestock on project lands and waters is prohibited except when authorized by lease, license or other written agreement with the District Commander.
(e) Unauthorized livestock are subject to impoundment and removal in accordance with Federal, state and local laws.
(f) Any animal impounded under the provisions of this section may be confined at a location designated by the District Commander, who may assess a reasonable impoundment fee. This fee shall be paid before the impounded animal is returned to its owner(s).
(g) Wild or exotic pets and animals (including but not limited to cougars, lions, bears, bobcats, wolves, and snakes), or any pets or animals displaying vicious or aggressive behavior or otherwise posing a threat to public safety or deemed a public nuisance, are prohibited from project lands and waters unless authorized by the District Commander, and are subject to removal in accordance with Federal, state and local laws.
§ 327.12 Restrictions.
(a) The District Commander may establish and post a schedule of visiting hours and/or restrictions on the public use of a project or portion of a project. The District Commander may close or restrict the use of a project or portion of a project when necessitated by reason of public health, public safety, maintenance, resource protection or other reasons in the public interest. Entering or using a project in a manner which is contrary to the schedule of visiting hours, closures or restrictions is prohibited.
(b) Quiet shall be maintained in all public use areas between the hours of 10 p.m. and 6 a.m., or those hours designated by the District Commander. Excessive noise during such times which unreasonably disturbs persons is prohibited.
(c) Any act or conduct by any person which interferes with, impedes or disrupts the use of the project or impairs the safety of any person is prohibited. Individuals who are boisterous, rowdy, disorderly, or otherwise disturb the peace on project lands or waters may be requested to leave the project.
(d) The operation or use of any sound producing or motorized equipment, including but not limited to generators, vessels or vehicles, in such a manner as to unreasonably annoy or endanger persons at any time or exceed state or local laws governing noise levels from motorized equipment is prohibited.
(e) The possession and/or consumption of alcoholic beverages on any portion of the project land or waters, or the entire project, may be prohibited when designated and posted by the District Commander.
(f) Unless authorized by the District Commander, smoking is prohibited in Visitor Centers, enclosed park buildings and in areas posted to restrict smoking.
§ 327.13 Explosives, firearms, other weapons and fireworks.
(a) The possession of loaded firearms, ammunition, loaded projectile firing devices, bows and arrows, crossbows, or other weapons is prohibited unless:
(1) In the possession of a Federal, state or local law enforcement officer;
(2) Being used for hunting or fishing as permitted under § 327.8, with devices being unloaded when transported to, from or between hunting and fishing sites;
(3) Being used at authorized shooting ranges; or
(4) Written permission has been received from the District Commander.
(b) Possession of explosives or explosive devices of any kind, including fireworks or other pyrotechnics, is prohibited unless written permission has been received from the District Commander.
§ 327.14 Public property.
(a) Destruction, injury, defacement, removal or any alteration of public property including, but not limited to, developed facilities, natural formations, mineral deposits, historical and archaeological features, paleontological resources, boundary monumentation or markers and vegetative growth, is prohibited except when in accordance with written permission of the District Commander.
(b) Cutting or gathering of trees or parts of trees and/or the removal of wood from project lands is prohibited without written permission of the District Commander.
(c) Gathering of dead wood on the ground for use in designated recreation areas as firewood is permitted, unless prohibited and posted by the District Commander.
(d) The use of metal detectors is permitted on designated beaches or other previously disturbed areas unless prohibited by the District Commander for reasons of protection of archaeological, historical or paleontological resources. Specific information regarding metal detector policy and designated use areas is available at the Manager’s Office. Items found must be handled in accordance with §§ 327.15 and 327.16 except for non-identifiable items such as coins of value less than $25.
§ 327.15 Abandonment and impoundment of personal property.
(a) Personal property of any kind shall not be abandoned, stored or left unattended upon project lands or waters. After a period of 24 hours, or at any time after a posted closure hour in a public use area or for the purpose of providing public safety or resource protection, unattended personal property shall be presumed to be abandoned and may be impounded and stored at a storage point designated by the District Commander, who may assess a reasonable impoundment fee. Such fee shall be paid before the impounded property is returned to its owner.
(b) Personal property placed on Federal lands or waters adjacent to a private residence, facility and/or developments of any private nature for more than 24 hours without permission of the District Commander shall be presumed to have been abandoned and, unless proven otherwise, such presumption will be sufficient to impound the property and/or issue a citation as provided for in § 327.25.
(c) The District Commander shall, by public or private sale or otherwise, dispose of all lost, abandoned or unclaimed personal property that comes into Government custody or control. However, property may not be disposed of until diligent effort has been made to find the owner, heirs, next of kin or legal representative(s). If the owner, heirs, next of kin or legal representative(s) are determined but not found, the property may not be disposed of until the expiration of 120 days after the date when notice, giving the time and place of the intended sale or other disposition, has been sent by certified or registered mail to that person at the last known address. When diligent efforts to determine the owner, heirs, next of kin or legal representative(s) are unsuccessful, the property may be disposed of without delay except that if it has a fair market value of $100 or more the property may not be disposed of until 90 days after the date it is received at the storage point designated by the District Commander. The net proceeds from the sale of property shall be conveyed into the Treasury of the United States as miscellaneous receipts.
§ 327.16 Lost and found articles.
All articles found shall be deposited by the finder at the Manager’s office or with a ranger. All such articles shall be disposed of in accordance with the procedures set forth in § 327.15.
§ 327.17 Advertisement.
(a) Advertising and the distribution of printed matter is allowed within project land and waters provided that a permit to do so has been issued by the District Commander and provided that this activity is not solely commercial advertising.
(b) An application for such a permit shall set forth the name of the applicant, the name of the organization (if any), the date, time, duration, and location of the proposed advertising or the distribution of printed matter, the number of participants, and any other information required by the permit application form. Permit conditions and procedures are available from the District Commander.
(c) Vessels and vehicles with semipermanent or permanent painted or installed signs are exempt as long as they are used for authorized recreational activities and comply with all other rules and regulations pertaining to vessels and vehicles.
(d) The District Commander shall, without unreasonable delay, issue a permit on proper application unless:
(1) A prior application for a permit for the same time and location has been made that has been or will be granted and the activities authorized by that permit do not reasonably allow multiple occupancy of the particular area; or
(2) It reasonably appears that the advertising or the distribution of printed matter will present a clear and present danger to the public health and safety; or
(3) The number of persons engaged in the advertising or the distribution of printed matter exceeds the number that can reasonably be accommodated in the particular location applied for, considering such things as damage to project resources or facilities, impairment of a protected area’s atmosphere of peace and tranquility, interference with program activities, or impairment of public use facilities; or
(4) The location applied for has not been designated as available for the advertising or the distribution of printed matter; or
(5) The activity would constitute a violation of an applicable law or regulation.
(e) If a permit is denied, the applicant shall be so informed in writing, with the reason(s) for the denial set forth.
(f) The District Commander shall designate on a map, which shall be available for inspection in the applicable project office, the locations within the project that are available for the advertising or the distribution of printed matter. Locations may be designated as not available only if the advertising or the distribution of printed matter would:
(1) Cause injury or damage to project resources; or
(2) Unreasonably impair the atmosphere of the peace and tranquility maintained in natural, historic, or commemorative zones; or
(3) Unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the Corps of Engineers; or
(4) Substantially impair the operation of public use facilities or services of Corps of Engineers concessioners or contractors.
(5) Present a clear and present danger to the public health and safety.
(g) The permit may contain such conditions as are reasonably consistent with protection and use of the project area for the purposes for which it is established.
(h) No permit shall be issued for a period in excess of 14 consecutive days, provided that permits may be extended for like periods, upon a new application, unless another applicant has requested use of the same location and multiple occupancy of that location is not reasonably possible.
(i) It is prohibited for persons engaged in the activity under this section to obstruct or impede pedestrians or vehicles, harass project visitors with physical contact or persistent demands, misrepresent the purposes or affiliations of those engaged in the advertising or the distribution of printed matter, or misrepresent whether the printed matter is available without cost or donation.
(j) A permit may be revoked under any of those conditions, as listed in paragraph (d) of this section, that constitute grounds for denial of a permit, or for violation of the terms and conditions of the permit. Such a revocation shall be made in writing, with the reason(s) for revocation clearly set forth, except under emergency circumstances, when an immediate verbal revocation or suspension may be made, to be followed by written confirmation within 72 hours.
(k) Violation of the terms and conditions of a permit issued in accordance with this section may result in the suspension or revocation of the permit.
§ 327.18 Commercial activities.
(a) The engaging in or solicitation of business on project land or waters without the express written permission of the District Commander is prohibited.
(b) It shall be a violation of this part to refuse to or fail to comply with any terms, clauses or conditions of any lease, license or agreements issued by the District Commander.
§ 327.19 Permits.
(a) It shall be a violation of this part to refuse to or fail to comply with the fee requirements or other terms or conditions of any permit issued under the provisions of this part 327.
(b) Permits for floating structures (issued under the authority of § 327.30) of any kind on/in waters of water resources development projects, whether or not such waters are deemed navigable waters of the United States but where such waters are under the management of the Corps of Engineers, shall be issued at the discretion of the District Commander under the authority of this section. District Commanders will delineate those portions of the navigable waters of the United States where this provision is applicable and post notices of this designation in the vicinity of the appropriate Manager’s office.
(c) Permits for non-floating structures (issued under the authority of § 327.30) of any kind constructed, placed in or affecting waters of water resources development projects where such waters are deemed navigable waters of the U.S. shall be issued under the provisions of section 10 of the Rivers and Harbors Act approved March 3, 1899 (33 U.S.C. 403). If a discharge of dredged or fill material in these waters is involved, a permit is required under section 404 of the Clean Water Act (33 U.S.C. 1344). (See 33 CFR parts 320 through 330.)
(d) Permits for non-floating structures (issued under the authority of § 327.30) of any kind in waters of water resources development projects, where such waters are under the management of the Corps of Engineers and where such waters are not deemed navigable waters of the United States, shall be issued as set forth in paragraph (b) of this section. If a discharge of dredged or fill material into any water of the United States is involved, a permit is required under section 404 of the Clean Water Act (33 U.S.C. 1344) (See 33 CFR parts 320 through 330). Water quality certification may be required pursuant to Section 401 of the Clean Water Act (33 U.S.C. 1341).
(e) Shoreline Use Permits to authorize private shoreline use facilities, activities or development (issued under the authority of § 327.30) may be issued in accordance with the project Shoreline Management Plan. Failure to comply with the permit conditions issued under § 327.30 is prohibited.
The construction, placement, or existence of any structure (including, but not limited to, roads, trails, signs, non-portable hunting stands or blinds, buoys, docks, or landscape features) of any kind under, upon, in or over the project lands, or waters is prohibited unless a permit, lease, license or other appropriate written authorization has been issued by the District Commander. The design, construction, placement, existence or use of structures in violation of the terms of the permit, lease, license, or other written authorization is prohibited. The government shall not be liable for the loss of, or damage to, any private structures, whether authorized or not, placed on project lands or waters. Unauthorized structures are subject to summary removal or impoundment by the District Commander. Portable hunting stands, climbing devices, steps, or blinds, that are not nailed or screwed into trees and are removed at the end of a day’s hunt may be used.
§ 327.21 Special events.
(a) Special events including, but not limited to, water carnivals, boat regattas, fishing tournaments, music festivals, dramatic presentations or other special recreation programs are prohibited unless written permission has been granted by the District Commander. Where appropriate, District Commanders can provide the state a blanket letter of permission to permit fishing tournaments while coordinating the scheduling and details of tournaments with individual projects. An appropriate fee may be charged under the authority of § 327.23.
(b) The public shall not be charged any fee by the sponsor of such event unless the District Commander has approved in writing (and the sponsor has properly posted) the proposed schedule of fees. The District Commander shall have authority to revoke permission, require removal of any equipment, and require restoration of an area to pre-event condition, upon failure of the sponsor to comply with terms and conditions of the permit/permission or the regulations in this part 327.
(a) Occupying any lands, buildings, vessels or other facilities within water resource development projects for the purpose of maintaining the same as a full-or part-time residence without the written permission of the District Commander is prohibited. The provisions of this section shall not apply to the occupation of lands for the purpose of camping, in accordance with the provisions of § 327.7.
(b) Use of project lands or waters for agricultural purposes is prohibited except when in compliance with terms and conditions authorized by lease, license or other written agreement issued by the District Commander.
§ 327.23 Recreation use fees.
(a) In accordance with the Land and Water Conservation Fund Act of 1965 (16 U.S.C. 460l) and the Omnibus Budget Reconciliation Act of 1993, Pub. L. 103-66, the Corps of Engineers collects day use fees, special recreation use fees and/or special permit fees for the use of specialized sites, facilities, equipment or services related to outdoor recreation furnished at Federal expense.
(b) Where such fees are charged, the District Commander shall insure that clear notice of fee requirements is prominently posted at each area, and at appropriate locations therein and that the notice be included in publications distributed at such areas. Failure to pay authorized recreation use fees as established pursuant to Pub. L. 88-578, 78 Stat. 897, as amended (16 U.S.C. 460l-6a), is prohibited and is punishable by a fine of not more than $100.
(c) Failure to pay authorized day use fees, and/or properly display applicable receipt, permit or pass is prohibited.
(d) Any Golden Age or Golden Access Passport permittee shall be entitled, upon presentation of such a permit, to utilize special recreation facilities at a rate of 50 percent off the established use fee at Federally operated areas. Fraudulent use of a Golden Age or Golden Access Passport is prohibited.
§ 327.24 Interference with Government employees.
(a) It is a Federal crime pursuant to the provisions of sections 111 and 1114 of Title 18, United States Code, to forcibly assault, resist, oppose, impede, intimidate, or interfere with, attempt to kill or kill any civilian official or employee for the U.S. Army Corps of Engineers engaged in the performance of his or her official duties, or on account of the performance of his or her official duties. Such actions or interference directed against a Federal employee while carrying out the regulations in this part are violation of such regulations and may be a state crime pursuant to the laws of the state where they occur.
(b) Failure to comply with a lawful order issued by a Federal employee acting pursuant to the regulations in this part shall be considered as interference with that employee while engaged in the performance of their official duties. Such interference with a Federal employee includes failure to provide a correct name, address or other information deemed necessary for identification upon request of the Federal employee, when that employee is authorized by the District Commander to issue citations in the performance of the employee’s official duties.
§ 327.25 Violations of rules and regulations.
(a) Any person who violates the provisions of the regulations in this part, other than for a failure to pay authorized recreation use fees as separately provided for in § 327.23, may be punished by a fine of not more than $5,000 or imprisonment for not more than six months or both and may be tried and sentenced in accordance with the provisions of section 3401 of Title 18, United States Code. Persons designated by the District Commander shall have the authority to issue a citation for violation of the regulations in this part, requiring any person charged with the violation to appear before the United States Magistrate within whose jurisdiction the affected water resources development project is located (16 U.S.C. 460d).
(b) Any person who commits an act against any official or employee of the U.S. Army Corps of Engineers that is a crime under the provisions of section 111 or section 1114 of Title 18, United States Code or under provisions of pertinent state law may be tried and sentenced as further provided under Federal or state law, as the case may be.
§ 327.26 State and local laws.
(a) Except as otherwise provided in this part or by Federal law or regulation, state and local laws and ordinances shall apply on project lands and waters. This includes, but is not limited to, state and local laws and ordinances governing:
(1) Operation and use of motor vehicles, vessels, and aircraft;
(2) Hunting, fishing and trapping;
(3) Use or possession of firearms or other weapons;
(4) Civil disobedience and criminal acts;
(5) Littering, sanitation and pollution; and
(6) Alcohol or other controlled substances.
(b) These state and local laws and ordinances are enforced by those state and local enforcement agencies established and authorized for that purpose.
§§ 327.27-327.29 [Reserved]
§ 327.30 Shoreline Management on Civil Works Projects.
(a) Purpose. The purpose of this regulation is to provide policy and guidance on management of shorelines of Civil Works projects where 36 CFR part 327 is applicable.
(b) Applicability. This regulation is applicable to all field operating agencies with Civil Works responsibilities except when such application would result in an impingement upon existing Indian rights.
(c) References. (1) Section 4, 1944 Flood Control Act, as amended (16 U.S.C. 460d).
(2) The Rivers and Harbors Act of 1894, as amended and supplemented (33 U.S.C. 1)
(3) Section 10, River and Harbor Act of 1899 (33 U.S.C. 403).
(4) National Historic Preservation Act of 1966 (Pub. L. 89-665; 80 Stat. 915) as amended (16 U.S.C. 470 et seq.).
(5) The National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq.).
(6) The Clean Water Act (33 U.S.C. 1344, et seq.).
(7) The Water Resources Development Act of 1986 (Pub. L. 99-662).
(8) Title 36, chapter III, part 327, Code of Federal Regulations, “Rules and Regulations Governing Public Use of Water Resource Development Projects Administered by the Chief of Engineers.”
(9) Executive Order 12088 (13 Oct. 78).
(10) 33 CFR parts 320-330, “Regulatory Programs of the Corps of Engineers.”
(11) ER 1130-2-400, “Management of Natural Resources and Outdoor Recreation at Civil Works Water Resource Projects.”
(12) EM 385-1-1, “Safety and Health Requirements Manual.”
(d) Policy. (1) It is the policy of the Chief of Engineers to protect and manage shorelines of all Civil Works water resource development projects under Corps jurisdiction in a manner which will promote the safe and healthful use of these shorelines by the public while maintaining environmental safeguards to ensure a quality resource for use by the public. The objectives of all management actions will be to achieve a balance between permitted private uses and resource protection for general public use. Public pedestrian access to and exit from these shorelines shall be preserved. For projects or portions of projects where Federal real estate interest is limited to easement title only, management actions will be appropriate within the limits of the estate acquired.
(2) Private shoreline uses may be authorized in designated areas consistent with approved use allocations specified in Shoreline Management Plans. Except to honor written commitments made prior to publication of this regulation, private shoreline uses are not allowed on water resource projects where construction was initiated after December 13, 1974, or on water resource projects where no private shoreline uses existed as of that date. Any existing permitted facilities on these projects will be grandfathered until the facilities fail to meet the criteria set forth in § 327.30(h).
(3) A Shoreline Management Plan, as described in § 327.30(e), will be prepared for each Corps project where private shoreline use is allowed. This plan will honor past written commitments. The plan will be reviewed at least once every five years and revised as necessary. Shoreline uses that do not interfere with authorized project purposes, public safety concerns, violate local norms or result in significant environmental effects should be allowed unless the public participation process identifies problems in these areas. If sufficient demand exists, consideration should be given to revising the shoreline allocations (e.g. increases/decreases). Maximum public participation will be encouraged as set forth in § 327.30(e)(6). Except to honor written commitments made prior to the publication of this regulation, shoreline management plans are not required for those projects where construction was initiated after December 13, 1974, or on projects not having private shoreline use as of that date. In that case, a statement of policy will be developed by the district commander to present the shoreline management policy. This policy statement will be subject to the approval of the division commander. For projects where two or more agencies have jurisdiction, the plan will be cooperatively prepared with the Corps as coordinator.
(4) Where commercial or other public launching and/or moorage facilities are not available within a reasonable distance, group owned mooring facilities may be allowed in Limited Development Areas to limit the proliferation of individual facilities. Generally only one permit will be necessary for a group owned mooring facility with that entity, if incorporated, or with one person from the organization designated as the permittee and responsible for all moorage spaces within the facility. No charge may be made for use of any permitted facility by others nor shall any commercial activity be engaged in thereon.
(5) The issuance of a private shoreline use permit does not convey any real estate or personal property rights or exclusive use rights to the permit holder. The public’s right of access and use of the permit area must be maintained and preserved. Owners of permitted facilities may take necessary precautions to protect their property from theft, vandalism or trespass, but may in no way preclude the public right of pedestrian or vessel access to the water surface or public land adjacent to the facility.
(6) Shoreline Use Permits will only be issued to individuals or groups with legal right of access to public lands.
(e) Shoreline Management Plan—(1) General. The policies outlined in § 327.30(d) will be implemented through preparation of Shoreline Management Plans, where private shoreline use is allowed.
(2) Preparation. A Shoreline Management Plan is prepared as part of the Operational Management Plan. A moratorium on accepting applications for new permits may be placed in effect from the time an announcement of creation of a plan or formal revision of a plan is made until the action is completed.
(3) Approval. Approval of Shoreline Management Plans rests with division commanders. After approval, one copy of each project Shoreline Management Plan will be forwarded to HQUSACE (CECW-ON) WASH DC 20314-1000. Copies of the approved plan will also be made available to the public.
(4) Scope and Format. The Shoreline Management Plan will consist of a map showing the shoreline allocated to the uses listed in § 327.30(e)(6), related rules and regulations, a discussion of what areas are open or closed to specific activities and facilities, how to apply for permits and other information pertinent to the Corps management of the shoreline. The plan will be prepared in sufficient detail to ensure that it is clear to the public what uses are and are not allowed on the shoreline of the project and why. A process will be developed and presented in the Shoreline Management Plan that prescribes a procedure for review of activities requested but not specifically addressed by the Shoreline Management Plan.
(5) Shoreline Allocation. The entire shoreline will be allocated within the classifications below and delineated on a map. Any action, within the context of this rule, which gives a special privilege to an individual or group of individuals on land or water at a Corps project, that precludes use of those lands and waters by the general public, is considered to be private shoreline use. Shoreline allocations cover that land and/or water extending from the edge of the water and waterward with the exception of allocations for the purpose of vegetation modification which extends landward to the project boundary. These allocations should complement, but certainly not contradict, the land classifications in the project master plan. A map of sufficient size and scale to clearly display the shoreline allocations will be conspicuously displayed or readily available for viewing in the project administration office and will serve as the authoritative reference. Reduced or smaller scale maps may be developed for public dissemination but the information contained on these must be identical to that contained on the display map in the project administration office. No changes will be made to these maps except through the formal update process. District commanders may add specific constraints and identify areas having unique characteristics during the plan preparation, review, or updating process in addition to the allocation classifications described below.
(i) Limited Development Areas. Limited Development Areas are those areas in which private facilities and/or activities may be allowed consistent with § 327.30(h) and appendix A. Modification of vegetation by individuals may be allowed only following the issuance of a permit in accordance with appendix A. Potential low and high water conditions and underwater topography should be carefully evaluated before shoreline is allocated as Limited Development Area.
(ii) Public Recreation Areas. Public Recreation Areas are those areas designated for commercial concessionaire facilities, Federal, state or other similar public use. No private shoreline use facilities and/or activities will be permitted within or near designated or developed public recreation areas. The term “near” depends on the terrain, road system, and other local conditions, so actual distances must be established on a case by case basis in each project Shoreline Management Plan. No modification of land forms or vegetation by private individuals or groups of individuals is permitted in public recreation areas.
(iii) Protected Shoreline Areas. Protected Shoreline Areas are those areas designated to maintain or restore aesthetic, fish and wildlife, cultural, or other environmental values. Shoreline may also be so designated to prevent development in areas that are subject to excessive siltation, erosion, rapid dewatering, or exposure to high wind, wave, or current action and/or in areas in which development would interfere with navigation. No Shoreline Use Permits for floating or fixed recreation facilities will be allowed in protected areas. Some modification of vegetation by private individuals, such as clearing a narrow meandering path to the water, or limited mowing, may be allowed only following the issuance of a permit if the resource manager determines that the activity will not adversely impact the environment or physical characteristics for which the area was designated as protected. In making this determination the effect on water quality will also be considered.
(iv) Prohibited Access Areas. Prohibited Access Areas are those in which public access is not allowed or is restricted for health, safety or security reasons. These could include hazardous areas near dams, spillways, hydro-electric power stations, work areas, water intake structures, etc. No shoreline use permits will be issued in Prohibited Access Areas.
(6) Public Participation. District commanders will ensure public participation to the maximum practicable extent in Shoreline Management Plan formulation, preparation and subsequent revisions. This may be accomplished by public meetings, group workshops, open houses or other public involvement techniques. When master plan updates and preparation of the Shoreline Management Plans are concurrent, public participation may be combined and should consider all aspects of both plans, including shoreline allocation classifications. Public participation will begin during the initial formulation stage and must be broad-based to cover all aspects of public interest. The key to successful implementation is an early and continual public relations program. Projects with significant numbers of permits should consider developing computerized programs to facilitate exchange of information with permittees and to improve program efficiency. Special care will be taken to advise citizen and conservation organizations; Federal, state and local natural resource management agencies; Indian Tribes; the media; commercial concessionaires; congressional liaisons; adjacent landowners and other concerned entities during the formulation of Shoreline Management Plans and subsequent revisions. Notices shall be published prior to public meetings to assure maximum public awareness. Public notices shall be issued by the district commander allowing for a minimum of 30 days for receipt of written public comment in regard to the proposed Shoreline Management Plan or any major revision thereto.
(7) Periodic Review. Shoreline Management Plans will be reviewed periodically, but no less often than every five years, by the district commander to determine the need for update. If sufficient controversy or demand exists, consideration should be given, consistent with other factors, to a process of reevaluation of the shoreline allocations and the plan. When changes to the Shoreline Management Plan are needed, the plan will be formally updated through the public participation process. Cumulative environmental impacts of permit actions and the possibility of preparing or revising project NEPA documentation will be considered. District commanders may make minor revisions to the Shoreline Management Plan when the revisions are consistent with policy and funds for a complete plan update are not available. The amount and type of public involvement needed for such revision is at the discretion of the district commander.
(f) Instruments for Shoreline Use. Instruments used to authorize private shoreline use facilities, activities or development are as follows:
(1) Shoreline Use Permits. (i) Shoreline Use Permits are issued and enforced in accordance with provisions of 36 CFR 327.19.
(ii) Shoreline Use Permits are required for private structures/activities of any kind (except boats) in waters of Civil Works projects whether or not such waters are deemed navigable and where such waters are under the primary jurisdiction of the Secretary of the Army and under the management of the Corps of Engineers.
(iii) Shoreline Use Permits are required for non-floating structures on waters deemed commercially non-navigable, when such waters are under management of the Corps of Engineers.
(iv) Shoreline Use Permits are also required for land vegetation modification activities which do not involve disruption to land form.
(v) Permits should be issued for a term of five years. To reduce administration costs, one year permits should be issued only when the location or nature of the activity requires annual reissuance.
(vi) Shoreline Use Permits for erosion control may be issued for the life or period of continual ownership of the structure by the permittee and his/her legal spouse.
(2) Department of the Army Permits. Dredging, construction of fixed structures, including fills and combination fixed-floating structures and the discharge of dredged or fill material in waters of the United States will be evaluated under authority of section 10, River and Harbor Act of 1899 (33 U.S.C. 403) and section 404 of the Clean Water Act (33 U.S.C. 1344). Permits will be issued where appropriate.
(3) Real Estate Instruments. Commercial development activities and activities which involve grading, cuts, fills, or other changes in land form, or establishment of appropriate land-based support facilities required for private floating facilities, will continue to be covered by a lease, license or other legal grant issued through the appropriate real estate element. Shoreline Management Plans should identify the types of activities that require real estate instruments and indicate the general process for obtaining same. Shoreline Use Permits are not required for facilities or activities covered by a real estate instrument.
(g) Transfer of Permits. Shoreline Use Permits are non-transferable. They become null and void upon sale or transfer of the permitted facility or the death of the permittee and his/her legal spouse.
(h) Existing Facilities Now Under Permit. Implementation of a Shoreline Management Plan shall consider existing permitted facilities and prior written Corps commitments implicit in their issuance. Facilities or activities permitted under special provisions should be identified in a way that will set them apart from other facilities or activities.
(1) Section 6 of Pub. L. 97-140 provides that no lawfully installed dock or appurtenant structures shall be required to be removed prior to December 31, 1989, from any Federal water resources reservoir or lake project administered by the Secretary of the Army, acting through the Chief of Engineers, on which it was located on December 29, 1981, if such property is maintained in usable condition, and does not occasion a threat to life or property.
(2) In accordance with section 1134(d) of Pub. L. 99-662, any houseboat, boathouse, floating cabin or lawfully installed dock or appurtenant structures in place under a valid shoreline use permit as of November 17, 1986, cannot be forced to be removed from any Federal water resources project or lake administered by the Secretary of the Army on or after December 31, 1989, if it meets the three conditions below except where necessary for immediate use for public purposes or higher public use or for a navigation or flood control project.
(i) Such property is maintained in a usable and safe condition,
(ii) Such property does not occasion a threat to life or property, and
(iii) The holder of the permit is in substantial compliance with the existing permit.
(3) All such floating facilities and appurtenances will be formally recognized in an appropriate Shoreline Management Plan. New permits for these permitted facilities will be issued to new owners. If the holder of the permit fails to comply with the terms of the permit, it may be revoked and the holder required to remove the structure, in accordance with the terms of the permit as to notice, time, and appeal.
(i) Facility Maintenance. Permitted facilities must be operated, used and maintained by the permittee in a safe, healthful condition at all times. If determined to be unsafe, the resource manager will establish together with the permittee a schedule, based on the seriousness of the safety deficiency, for correcting the deficiency or having it removed, at the permittee’s expense. The applicable safety and health prescriptions in EM 385-1-1 should be used as a guide.
(j) Density of Development. The density of private floating and fixed recreation facilities will be established in the Shoreline Management Plan for all portions of Limited Development areas consistent with ecological and aesthetic characteristics and prior written commitments. The facility density in Limited Development Areas should, if feasible, be determined prior to the development of adjacent private property. The density of facilities will not be more than 50 per cent of the Limited Development Area in which they are located. Density will be measured by determining the linear feet of shoreline as compared to the width of the facilities in the water plus associated moorage arrangements which restrict the full unobstructed use of that portion of the shoreline. When a Limited Development Area or a portion of a Limited Development area reaches maximum density, notice should be given to the public and facility owners in that area that no additional facilities will be allowed. In all cases, sufficient open area will be maintained for safe maneuvering of watercraft. Docks should not extend out from the shore more than one-third of the width of a cove at normal recreation or multipurpose pool. In those cases where current density of development exceeds the density level established in the Shoreline Management Plan, the density will be reduced to the prescribed level through attrition.
(k) Permit Fees. Fees associated with the Shoreline Use Permits shall be paid prior to issuing the permit in accordance with the provisions of § 327.30(c)(1). The fee schedule will be published separately.
a. Decisions regarding permits for private floating recreation facilities will consider the operating objectives and physical characteristics of each project. In developing Shoreline Management Plans, district commanders will give consideration to the effects of added private boat storage facilities on commercial concessions for that purpose. Consistent with established policies, new commercial concessions may be alternatives to additional limited development shoreline.
b. Permits for individually or group owned shoreline use facilities may be granted only in Limited Development Areas when the sites are not near commercial marine services and such use will not despoil the shoreline nor inhibit public use or enjoyment thereof. The installation and use of such facilities will not be in conflict with the preservation of the natural characteristics of the shoreline nor will they result in significant environmental damage. Charges will be made for Shoreline Use Permits in accordance with the separately published fee schedule.
c. Permits may be granted within Limited Development Areas for ski jumps, floats, boat moorage facilities, duck blinds, and other private floating recreation facilities when they will not create a safety hazard and inhibit public use or enjoyment of project waters or shoreline. A Corps permit is not required for temporary ice fishing shelters or duck blinds when they are regulated by a state program. When the facility or activity is authorized by a shoreline use permit, a separate real estate instrument is generally not required.
d. Group owned boat mooring facilities may be permitted in Limited Development Areas where practicable (e.g. where physically feasible in terms of access, water depths, wind protection, etc.).
a. Applications for private Shoreline Use Permits will be reviewed with full consideration of the policies set forth in this and referenced regulations, and the Shoreline Management Plan. Fees associated with the Shoreline Use Permit shall be paid prior to issuing the permit. Plans and specifications of the proposed facility shall be submitted and approved prior to the start of construction. Submissions should include engineering details, structural design, anchorage method, and construction materials; the type, size, location and ownership of the facility; expected duration of use; and an indication of willingness to abide by the applicable regulations and terms and conditions of the permit. Permit applications shall also identify and locate any land-based support facilities and any specific safety considerations.
b. Permits will be issued by the district commander or his/her authorized representative on ENG Form 4264-R (Application for Shoreline Use Permit) (appendix B). Computer generated forms may be substituted for ENG Form 4264-R provided all information is included. The computer generated form will be designated, “ENG Form 4264-R-E, Oct 87 (Electronic generation approved by USACE, Oct 87)”.
c. The following are guides to issuance of Shoreline Use Permits:
(1) Use of boat mooring facilities, including piers and boat (shelters) houses, will be limited to vessel or watercraft mooring and storage of gear essential to vessel or watercraft operation.
(2) Private floating recreation facilities, including boat mooring facilities shall not be constructed or used for human habitation or in a manner which gives the appearance of converting Federal public property on which the facility is located to private, exclusive use. New docks with enclosed sides (i.e. boathouses) are prohibited.
(3) No private floating facility will exceed the minimum size required to moor the owner’s boat or boats plus the minimum size required for an enclosed storage locker of oars, life preservers and other items essential to watercraft operation. Specific size limitations may be established in the project Shoreline Management Plan.
(4) All private floating recreation facilities including boat mooring facilities will be constructed in accordance with plans and specifications, approved by the resource manager, or a written certification from a licensed engineer, stating the facility is structurally safe will accompany the initial submission of the plans and specifications.
(5) Procedures regarding permits for individual facilities shall also apply to permits for non-commercial group mooring facilities.
(6) Facilities attached to the shore shall be securely anchored by means of moorings which do not obstruct the free use of the shoreline, nor damage vegetation or other natural features. Anchoring to vegetation is prohibited.
(7) Electrical service and equipment leading to or on private mooring facilities must not pose a safety hazard nor conflict with other recreational use. Electrical installations must be weatherproof and meet all current applicable electrical codes and regulations. The facility must be equipped with quick disconnect fittings mounted above the flood pool elevation. All electrical installations must conform to the National Electric Code and all state, and local codes and regulations. In those states where electricians are licensed, registered, or otherwise certified, a copy of the electrical certification must be provided to the resource manager before a Shoreline Use Permit can be issued or renewed. The resource manager will require immediate removal or disconnection of any electrical service or equipment that is not certified (if appropriate), does not meet code, or is not safely maintained. All new electrical lines will be installed underground. This will require a separate real estate instrument for the service right-of-way. Existing overhead lines will be allowed, as long as they meet all applicable electrical codes, regulations and above guidelines, to include compatibility and safety related to fluctuating water levels.
(8) Private floating recreation facilities will not be placed so as to interfere with any authorized project purposes, including navigation, or create a safety or health hazard.
(9) The district commander or his/her authorized representative may place special conditions on the permit when deemed necessary. Requests for waivers of shoreline management plan permit conditions based on health conditions will be reviewed on a case by case basis by the Operations Manager. Efforts will be made to reduce onerous requirements when a limiting health condition is obvious or when an applicant provides a doctor’s certification of need for conditions which are not obvious.
(10) Vegetation modification, including but not limited to, cutting, pruning, chemical manipulation, removal or seeding by private individuals is allowed only in those areas designated as Limited Development Areas or Protected Shoreline Areas. An existing (as of July 1, 1987) vegetation modification permit, within a shoreline allocation which normally would not allow vegetation modification, should be grandfathered. Permittees will not create the appearance of private ownership of public lands.
(11) The term of a permit for vegetation modification will be for five years. Where possible, such permits will be consolidated with other shoreline management permits into a single permit. The district commander is authorized to issue vegetation modification permits of less than five years for one-time requests or to aid in the consolidation of shoreline management permits.
(12) When issued a permit for vegetative modification, the permittee will delineate the government property line, as surveyed and marked by the government, in a clear but unobtrusive manner approved by the district commander and in accordance with the project Shoreline Management Plan and the conditions of the permit. Other adjoining owners may also delineate the common boundary subject to these same conditions. This delineation may include, but is not limited to, boundary plantings and fencing. The delineation will be accomplished at no cost to the government.
(13) No permit will be issued for vegetation modification in Protected Shoreline Areas until the environmental impacts of the proposed modification are assesed by the resource manager and it has been determined that no significant adverse impacts will result. The effects of the proposed modification on water quality will also be considered in making this determination.
(14) The original of the completed permit application is to be retained by the permittee. A duplicate will be retained in the resource manager’s office.
Permits may be revoked by the district commander when it is determined that the public interest requires such revocation or when the permittee fails to comply with terms and conditions of the permit, the Shoreline Management Plan, or of this regulation. Permits for duck blinds and ice fishing shelters will be issued to cover a period not to exceed 30 days prior to and 30 days after the season.
Facilities not removed when specified in the permit or when requested after termination or revocation of the permit will be treated as unauthorized structures pursuant to 36 CFR 327.20.
Each district will procure 5″ × 8″ or larger printed permit tags of light metal or plastic for posting. The permit display tag shall be posted on the facility and/or on the land area covered by the permit, so that it can be visually checked, with ease in accordance with instructions provided by the resource manager. Facilities or activities permitted under special provisions should be identified in a way that will set apart from other facilities or activities.
1. This permit is granted solely to the applicant for the purpose described on the attached permit.
2. The permittee agrees to and does hereby release and agree to save and hold the Government harmless from any and all causes of action, suits at law or equity, or claims or demands or from any liability of any nature whatsoever for or on account of any damages to persons or property, including a permitted facility, growing out of the ownership, construction, operation or maintenance by the permittee of the permitted facilities and/or activities.
3. Ownership, construction, operation, use and maintenance of a permitted facility are subject to the Government’s navigation servitude.
4. No attempt shall be made by the permittee to forbid the full and free use by the public of all public waters and/or lands at or adjacent to the permitted facility or to unreasonably interfere with any authorized project purposes, including navigation in connection with the ownership, construction, operation or maintenance of a permitted facility and/or activity.
5. The permittee agrees that if subsequent operations by the Government require an alteration in the location of a permitted facility and/or activity or if in the opinion of the district commander a permitted facility and/or activity shall cause unreasonable obstruction to navigation or that the public interest so requires, the permittee shall be required, upon written notice from the district commander to remove, alter, or relocate the permitted facility, without expense to the Government.
6. The Government shall in no case be liable for any damage or injury to a permitted facility which may be caused by or result from subsequent operations undertaken by the Government for the improvement of navigation or for other lawful purposes, and no claims or right to compensation shall accrue from any such damage. This includes any damage that may occur to private property if a facility is removed for noncompliance with the conditions of the permit.
7. Ownership, construction, operation, use and maintenance of a permitted facility and/or activity are subject to all applicable Federal, state and local laws and regulations. Failure to abide by these applicable laws and regulations may be cause for revocation of the permit.
8. This permit does not convey any property rights either in real estate or material; and does not authorize any injury to private property or invasion of private rights or any infringement of Federal, state or local laws or regulations, nor does it obviate the necessity of obtaining state or local assent required by law for the construction, operation, use or maintenance of a permitted facility and/or activity.
9. The permittee agrees to construct the facility within the time limit agreed to on the permit issuance date. The permit shall become null and void if construction is not completed within that period. Further, the permittee agrees to operate and maintain any permitted facility and/or activity in a manner so as to provide safety, minimize any adverse impact on fish and wildlife habitat, natural, environmental, or cultural resources values and in a manner so as to minimize the degradation of water quality.
10. The permittee shall remove a permitted facility within 30 days, at his/her expense, and restore the waterway and lands to a condition accepted by the resource manager upon termination or revocation of this permit or if the permittee ceases to use, operate or maintain a permitted facility and/or activity. If the permittee fails to comply to the satisfaction of the resource manager, the district commander may remove the facility by contract or otherwise and the permittee agrees to pay all costs incurred thereof.
11. The use of a permitted boat dock facility shall be limited to the mooring of the permittee’s vessel or watercraft and the storage, in enclosed locker facilities, of his/her gear essential to the operation of such vessel or watercraft.
12. Neither a permitted facility nor any houseboat, cabin cruiser, or other vessel moored thereto shall be used as a place of habitation or as a full or part-time residence or in any manner which gives the appearance of converting the public property, on which the facility is located, to private use.
13. Facilities granted under this permit will not be leased, rented, sub-let or provided to others by any means of engaging in commercial activity(s) by the permittee or his/her agent for monetary gain. This does not preclude the permittee from selling total ownership to the facility.
14. Floats and the flotation material for all docks and boat mooring buoys shall be fabricated of materials manufactured for marine use. The float and its flotation material shall be 100% warranted for a minimum of 8 years against sinking, becoming waterlogged, cracking, peeling, fragmenting, or losing beads. All floats shall resist puncture and penetration and shall not be subject to damage by animals under normal conditions for the area. All floats and the flotation material used in them shall be fire resistant. Any float which is within 40 feet of a line carrying fuel shall be 100% impervious to water and fuel. The use of new or recycled plastic or metal drums or non-compartmentalized air containers for encasement or floats is prohibited. Existing floats are authorized until it or its flotation material is no longer serviceable, at which time it shall be replaced with a float that meets the conditions listed above. For any floats installed after the effective date of this specification, repair or replacement shall be required when it or its flotation material no longer performs its designated function or it fails to meet the specifications for which it was originally warranted.
15. Permitted facilities and activities are subject to periodic inspection by authorized Corps representatives. The resource manager will notify the permittee of any deficiencies and together establish a schedule for their correction. No deviation or changes from approved plans will be allowed without prior written approval of the resource manager.
16. Floating facilities shall be securely attached to the shore in accordance with the approved plans by means of moorings which do not obstruct general public use of the shoreline or adversely affect the natural terrain or vegetation. Anchoring to vegetation is prohibited.
17. The permit display tag shall be posted on the permitted facility and/or on the land areas covered by the permit so that it can be visually checked with ease in accordance with instructions provided by the resource manager.
18. No vegetation other than that prescribed in the permit will be damaged, destroyed or removed. No vegetation of any kind will be planted, other than that specifically prescribed in the permit.
19. No change in land form such as grading, excavation or filling is authorized by this permit.
20. This permit is non-transferable. Upon the sale or other transfer of the permitted facility or the death of the permittee and his/her legal spouse, this permit is null and void.
21. By 30 days written notice, mailed to the permittee by certified letter, the district commander may revoke this permit whenever the public interest necessitates such revocation or when the permittee fails to comply with any permit condition or term. The revocation notice shall specify the reasons for such action. If the permittee requests a hearing in writing to the district commander through the resource manager within the 30-day period, the district commander shall grant such hearing at the earliest opportunity. In no event shall the hearing date be more than 60 days from the date of the hearing request. Following the hearing, a written decision will be rendered and a copy mailed to the permittee by certified letter.
22. Notwithstanding the conditions cited in condition 21 above, if in the opinion of the district commander, emergency circumstances dictate otherwise, the district commander may summarily revoke the permit.
23. When vegetation modification on these lands is accomplished by chemical means, the program will be in accordance with appropriate Federal, state and local laws, rules and regulations.
24. The resource manager or his/her authorized representative shall be allowed to cross the permittee’s property, as necessary to inspect facilities and/or activities under permit.
25. When vegetation modification is allowed, the permittee will delineate the government property line in a clear, but unobtrusive manner approved by the resource manager and in accordance with the project Shoreline Management Plan.
26. If the ownership of a permitted facility is sold or transferred, the permittee or new owner will notify the Resource Manager of the action prior to finalization. The new owner must apply for a Shoreline Use Permit within 14 days or remove the facility and restore the use area within 30 days from the date of ownership transfer.
27. If permitted facilities are removed for storage or extensive maintenance, the resource manager may require all portions of the facility be removed from public property.
§ 327.30 Shoreline Management on Civil Works Projects.
(k) * * * The Fee Schedule is published in § 327.31.
§ 327.31 Shoreline management fee schedule.
A charge will be made for Shoreline Use Permits to help defray expenses associated with issuance and administration of the permits. As permits become eligible for renewal after July 1, 1976, a charge of $10 for each new permit and a $5 annual fee for inspection of floating facilities will be made. There will be no annual inspection fee for permits for vegetative modification on Shoreline areas. In all cases the total administrative charge will be collected initially at the time of permit issuance rather than on a piecemeal annual basis.
PART 328—REGULATION OF SEAPLANE OPERATIONS AT CIVIL WORKS WATER RESOURCE DEVELOPMENT PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS
§ 328.1 Purpose.
This regulation, in connection with the modification of the present prohibition of seaplane operations by the amendment to § 327.4 of title 36 of the Code of Federal Regulations, is designed to provide uniform policies and criteria for designating Corps projects, or portions thereof, at which seaplane operations are prohibited or restricted; and to continue to protect the integrity and all authorized uses of such projects and the safety of users of such projects. As used in this regulation, projects or Corps projects means water resources development projects administered by the Chief of Engineers.
§ 328.2 Applicability.
This regulation is applicable to all Field Operating Agencies having Civil Works responsibilities.
§ 328.3 References.
(a) Title 36 CFR, part 327, Rules and Regulations Governing Public Use of Water Resource Development Projects Administered by the Chief of Engineers (38 FR 7552, March 23, 1973).
(b) ER 1105-2-507.
(c) ER 1130-2-400.
(d) ER 1145-2-301.
(e) ER 1145-2-303.
(f) ER 1165-2-400.
(g) ER 405-2-800 Series.
§ 328.4 Policy.
(a) The objective of Corps of Engineers resources management is to maximize public enjoyment and use of the lands, waters, forests, and associated recreational resources, consistent with their aesthetic and biological values. Such management includes efforts to preserve and enhance the environmental amenities that are the source of the recreational value associated with the project and to allow such other new and innovative uses of the projects that are not detrimental thereto.
(b) Seaplane operations at water resource development projects administered by the Chief of Engineers may involve hazards including, but not limited to, conflicting recreational activities, floating debris, and underwater hazards, which may be accentuated by the normal fluctutations of water levels.
(c) Seaplane operations may be prohibited or restricted at such water resource development projects, or portions thereof, for a variety of management reasons. Prohibiting or restricting seaplane operations in certain portions within a project in no way implies that safety hazards to seaplane operations or to other recreation users may not exist in other portions of such project.
(d) The operation of a seaplane at Corps projects is at the risk of the plane’s owner, operator, and passenger(s). The responsibility to ascertain whether seaplane operations are permitted, prohibited or restricted at such projects, and portions thereof, is incumbent upon the person(s) contemplating the use of, or using, such waters.
§ 328.5 Guidelines for seaplane use of project waters.
(a) All operations of the aircraft while upon the water shall be in accordance with the marine rules of the road for power boats or vessels.
(b) Seaplanes on project waters and lands in excess of 24 hours shall be securely moored at mooring facilities and at locations permitted by the District Engineer. Seaplanes may be temporarily moored on project waters and lands, except in areas prohibited by the District Engineer, for periods less than 24 hours providing that—
(1) The mooring is safe, secure, and accomplished so as not to damage the rights of the government or members of the public and
(2) The operator remains in the vicinity of the seaplane and reasonably available to relocate the seaplane if necessary.
(c) No commercial operation of seaplanes from project waters will be allowed without written approval of the District Engineer following consultation with and the necessary clearance from the Federal Aviation Administration (FAA) and other appropriate public authorities and affected interests.
(d) Seaplanes may not be operated at Corps projects between sunset and sunrise unless adequate lighting and supervision are available.
(e) Requests for public commercial facilities in support of seaplanes will be handled under normal concession policies.
(f) Permits for floating and nonfloating structures of any kind, in, on, or affecting project waters, under the management of the Resource Manager, including waters under lease, license or other outgrant agreement, shall be handled in accordance with the lakeshore management plan or policy statement for the project involved, § 327.19 of title 36, Code of Federal Regulations and, where required by statute or regulation, section 10 of the River and Harbor Act (approved March 3, 1899) and section 404 of the Federal Water Pollution Control Act of 1972 (Pub. L. 92-500).
(g) Appropriate signs should be employed to inform users of projects, or portions thereof, where seaplane operations are permitted.
§ 328.6 Procedures.
(a) In order to protect the integrity and all authorized uses of Corps projects and the safety of all users of the lake projects, the District Engineer shall:
(1) Examine and investigate each Corps project within his district which a seaplane operator could conceivably attempt to use for seaplane operations, and determine those projects, or portions thereof, in which seaplane operations should be prohibited.
(2) Establish such restrictions on seaplane operations as he deems necessary or desirable in accordance with these regulations for other areas. Seaplane takeoff and landing maneuvers within specified distances of the shoreline, bridges, causeways, water utility crossings, dams, and similar structures should be prohibited.
(3) Prior to concluding any such examination and investigation, consult with the FAA, appropriate State aeronautical agency, lessee or licensee of outgranted lands, the Coast Guard, and state boating law administrators, and use his best efforts to consult with other interested or affected public authorities and private interests for their guidance, particularly for those projects which are regularly used by the public for recreational purposes or are located in the vicinity of actively used airports, air fields, or densely populated areas. News releases, public notice, and congressional liaison should be used. Public hearings are encouraged.
(4) In making his investigation, examination, and determination, consider environmental factors in accordance with the National Environmental Policy Act of 1969 (NEPA), Pub. L. 91-190—particularly should he consider the impact that seaplane operations may have on the safety at the project, aquatic, fish and wildlife, noise levels, recreation, and air and water quality. Prior to concluding such investigation and examination, he shall prepare an environmental impact assessment (EIA) and, if necessary, an environmental impact statement (EIS) assessing the environmental impacts of permitting seaplanes to operate at the projects, or portions thereof, in his district.
(5) Place on Corps maps, brochures and otherwise adequately apprise the public and interested agencies of projects, or portions thereof, where seaplane operations are prohibited or restricted. Each map, brochure, or other notice should clearly indicate that operation of a seaplane at Corps projects is at the risk of the plane’s owner, operator, and/or passenger(s).
(6) Notify the FAA by letter of projects, or portions thereof, where seaplane operations are prohibited or restricted. The letter should use the words “seaplane operations prohibited,” or “seaplane operations restricted,” describe the geographical location of such areas as precisely as possible, describe any restrictions, include a telephone number for FAA to contact the District, and be sent to: Federal Aviation Administration, Area Traffic Service, Flight Services Division (AAT-432), 800 Independence Avenue SW., Washington, DC 20591.
(b) The removal of the present prohibition on seaplane operations will be effective one year from the date of publication of these regulations. The District Engineer should complete the examination, investigation, determination and notification to the FAA of projects, or portions thereof, where seaplane operations are prohibited or restricted, within one year from the date of this regulation. The District Engineer may extend the present prohibition for up to one additional year if he cannot complete his examination, investigation, determination, and notification within one year. In such event, he should notify the FAA by letter and publish other appropriate notices. Any further extension of time will require the approval of the Chief of Engineers.
(c) After he has completed his examination, investigation, determination and notification of the FAA of projects, or portions thereof where seaplane operations will be prohibited or restricted, The District Engineer should periodically reevaluate his determination as additional operational data becomes available. He may modify, delete, or add projects, or portions thereof, where seaplane operations are prohibited or restricted. Except where immediate action is required, he should consult with appropriate public authorities and private interests for their guidance with regard to such actions. Notification of these actions shall be forwarded to the FAA as indicated in paragraph (a)(6) of this section.
Nothing in the preceding provisions bestows authority to deviate from rules and regulations or prescribed standards of the State Aeronautical Agency, Federal Aviation Administration, Coast Guard, or other appropriate Federal, state, or local authority.
PART 330—REGULATION OF LAW ENFORCEMENT SERVICES CONTRACTS AT CIVIL WORKS WATER RESOURCE PROJECTS ADMINISTERED BY THE CHIEF OF ENGINEERS
§ 330.1 Purpose.
This regulation provides policy and guidance for the establishment and management of the contract law enforcement program including preparation of and management of contracts ensuing from this program.
§ 330.2 Applicability.
This regulation is applicable to all field operating agencies having responsibilities for Civil Works water resource development projects.
§ 330.3 References.
(a) Section 4 of the Flood Control Act of 1944, as amended (16 U.S.C. 460d).
(b) Section 234 of the River and Harbor and Flood Control Act of 1970 (Pub. L. 91-611, 84 Stat. 1818).
(c) Section 120 of the Water Resource Development Act of 1976 (Pub. L. 94-587, 90 Stat. 2917).
(d) 36 CFR chapter III.
(e) ER 190-2-3.
(f) ER 190-3-4.
§ 330.4 General.
(a) Section 120(a) of reference § 330.3(c) authorizes the Secretary of the Army, acting through the Chief of Engineers, to contract with States and their political subdivisions for the purpose of obtaining increased law enforcement services at water resource development projects under the jurisdiction of the Secretary of the Army to meet needs during peak visitation periods.
(b) Further, section 120(b) of the Act authorizes a maximum appropriation of up to $6,000,000 per fiscal year for the fiscal years ending 30 September 1978 and 30 September 1979, to carry out section 120(a).
§ 330.5 Policy.
(a) It is the policy of the Corps of Engineers to provide, to the extent of its authorities, a safe and healthful environment for public use of lands and waters at Civil Works water resource development projects. To insure this safe and healthful environment, and to augment the citation authorities granted to the Corps of Engineers by reference § 330.3(b), District Engineers, subject to the authority of the Division Engineers, as set out below, are hereby delegated the authority to contract with States or their political subdivisions to obtain increased law enforcement services at Civil Works water resource development projects. Division Engineers are hereby delegated the authority to approve any minor deviations from this regulation except that any substantial deviations from the policies expressed within this regulation will require the prior approval of the Chief of Engineers or his authorized representative. Any required approval for deviation shall be made prior to the execution of the contract. When fiscal year 1978 and fiscal year 1979 work allowances are issued, instructions will be furnished on reporting requirements and the control of expenditures.
(b) Contracts for law enforcement services, as authorized in § 330.5(a), shall be subject to the terms and conditions as provided for within this regulation and in accordance with standard contracting and accounting procedures applicable to the Corps of Engineers.
(c) This regulation is not intended to diminish or otherwise limit the existing law enforcement responsibilities of the State or local law enforcement agencies.
(d) Contract law enforcement personnel shall not be given Federal citation authority for enforcement of regulations contained in title 36 of the Code of Federal Regulations, Chapter III nor shall they be empowered to enforce such regulations. These regulations shall remain the responsibility of the Corps of Engineers.
(e) Contracts for increased law enforcement shall be for those projects or portions of projects that are operated and maintained by the Corps of Engineers. Law enforcement services will not be provided under this program to those outgrant areas operated and maintained by a non-Federal sponsor.
§ 330.6 Criteria.
(a) In order to provide reimbursement for law enforcement services supplied by a State or local law enforcement agency, a contract must be executed and approved in accordance with this regulation prior to the provisions of such services.
(b) The authorized contract law enforcement program extends only to 30 September 1979. Law enforcement services acquired by contract under this program shall be limited to those increased law enforcement services required to meet the needs of the public during peak visitation periods. Accordingly, the contract period shall not extend beyond the dates of 1 April through 30 September inclusive, and in no event shall the contract be written for more than 120 days within that time period. The contract may provide for an option to renew for a similar, additional period not to exceed 120-day period in Fiscal Year 1979. Any exceptions to this criteria must be approved by the Chief of Engineers or his authorized representative.
(c) Contracts shall be consummated only with those public law enforcement agencies legally empowered to enforce State and local criminal and civil laws within their respective political jurisdictions. In light of this requirement and the authority cited in § 330.3(c), it is recognized that sole source negotiations may necessarily be utilized in the procurement of these services. In negotiating law enforcement contracts with these agencies the District Engineer must determine the reasonableness of the price for the law enforcement services offered under the contract. Such a determination shall be made prior to execution of the contract, in accordance with the applicable Contract Cost Principles and Procedures as set out in ASPR, section 15, part 7, and as subject to the policies contained in this regulation. Such a determination shall be contained in the official contract file and must accompany any requests for deviations from the Division Engineer or Chief of Engineers as provided for in § 330.5(a) of this regulation. Contract law enforcement personnel must meet all the qualifications, including minimal law enforcement training, required by State and local laws and regulations.
(d) The contractor shall provide all personnel, equipment and supplies which are required to provide the increased law enforcement services contracted for by the District Engineer. The Corps of Engineers shall not reimburse the contractor for the purchase of any equipment or supplies desired by the contractor for use under this program. However, the Corps of Engineers shall reimburse the contractor for the reasonable costs incurred by him in the rental or use of such equipment which is allocated to the work performed by him under the contract. Such use shall include:
(1) A depreciation or use allowance for such equipment as determined by the service life evaluation system used by the contractor, and (2) the costs of necessary maintenance, repair, and upkeep of the property which neither adds to the permanent value of the property nor appreciably prolongs its intended life, but keeps it at an efficient operating condition.
(e) Reimbursement for law enforcement services shall be considered only for increased law enforcement services to meet needs during peak visitation periods. Each District Engineer shall evaluate and establish a normal law enforcement service standard for each contract situation and include such standard in the plan of operation to be developed in accordance with § 330.6(h). Each District Engineer shall evaluate the existing law enforcement services now being provided by State or local law enforcement agencies at those water resources projects or recreation areas where it is anticipated that law enforcement service contracts may be executed, and determine the scope including the type and amount, of law enforcement service which exceeds the normal law enforcement standard, and which will become eligible for reimbursement under the contract. Normally, requests by the District Engineer or his authorized representative for emergency or unanticipated law enforcement assistance will be considered nonreimbursable. Increased law enforcement services, eligible for reimbursement under the terms of the contract, shall be those regularly scheduled patrols or surveillance in excess of the normal law enforcement standard presently being provided by the contractor.
(f) An appropriate orientation program will be given by Corps personnel to all contract law enforcement personnel assigned to Corps projects. The purpose of this orientation will be to familiarize the contract law enforcement personnel with the policies and procedures of the Corps of Engineers, and to familiarize Corps personnel with the functions and duties of the State or local law enforcement agency. The Corps of Engineers shall reimburse the contractor for the cost per man hour as set out in § 330.6(h)(4) for attending the orientation program.
(g) The contractor shall be required to keep a record of the services provided to the District under the terms and conditions of the contract in accordance with the criteria established in the plan of operation required in § 330.6(h).
(h) The District Engineer, in cooperation with the Contractor, shall prepare a Plan of Operation for the Provision of law enforcement services as an attachment to the contract. The Plan of Operation shall contain, but not necessarily be limited to, the following information:
(1) Identify, by name and location, the project or projects and specific areas (recreation and others) that require law enforcement services.
(2) Describe the normal law enforcement services to be provided by the Contractor without reimbursement by the Government (see § 330.6(e)). Identify time of day, number of hours-per-day number of days-per-week, and the number of patrols.
(3) Describe the increased law enforcement services to be provided by the Contractor under the contract. Identify the time-of-day, number of hours-per-day, number of days-per-week, number of patrols, manpower per patrol, and effective starting and ending dates.
(4) Identify the cost-per-man-hour for the provision of reimbursable law enforcement services, and identify the costs for utilization and operation, maintenance and repair of such equipment as allocated for use under the contract. (See § 330.6(d).)
(5) The District Engineer and the Contractor should designate specific individuals to issue or receive requests for reimbursable law enforcement services under the contract.
(6) Describe the billing procedures to be utilized for the increased law enforcement services. The Contractor shall provide, at a minimum, the total charges, the number of hours involved, and starting and ending dates of the billing period.
(7) The Contractor shall prepare a Daily Law Enforcement Log (see § 330.6(g) for the law enforcement services rendered as specified in § 330.6(h)(3)). These logs shall be compiled by the Contractor and submitted to the District Engineer or his designated representative on a regular basis throughout the life of the contract. It is intended by this reporting requirement to minimize the paperwork burden on behalf of the Contractor while, at the same time, providing assurance to the Government with an adequate information base on which to administer the law enforcement services being provided under the contract. Any requirement for additional information to be contained in these reports due to unique or special circumstances encountered in negotiating a Plan of Operation with a particular law enforcement jurisdiction must receive the prior approval of the Division Engineer.
§ 330.7 Funding.
(a) Section 330.3(c) sets forth the maximum authorized funds for law enforcement contracting in FY 1978 and FY 1979. The Division funding levels for FY 1978 are based on information as previously submitted.
(b) The FY 1979 funding request for law enforcement contracting will be submitted as part of the FY 1979 budget submittal.
§ 330.8 Annual report.
(RCS-DAEN-CWO-53) The Division Engineer will submit a consolidated annual report to reach HQDA (DAEN-CWO-R) WASH DC 20314 not later than 30 October. This requirement expires 30 October 1979. The report will contain the following:
(a) Districts reporting.
(b) Number assigned each contract.
(c) Name of projects covered under each contract.
(d) Number of man-hours of increased law enforcement services provided under each contract.
(e) Total contract cost.
(f) Cost per man-hour for each contract.
(g) Corps of Engineers administrative or overhead costs associated with each contract.
(h) Number of arrests and type of offense committed, i.e., assault, burglary, auto theft, etc.
(i) The Division Engineers assessment of the effects of the contract law enforcement program and recommendation.
PART 331—REGULATIONS GOVERNING THE PROTECTION, USE AND MANAGEMENT OF THE FALLS OF THE OHIO NATIONAL WILDLIFE CONSERVATION AREA, KENTUCKY AND INDIANA
§ 331.1 Applicability and scope.
(a) The regulations contained in this part apply to those lands and waters within the established boundary of the Falls of the Ohio National Wildlife Conservation Area (WCA). Included in this boundary, which was published in the
(b) The WCA boundary encompasses an existing hydroelectric generating station and the McAlpine Locks and Dam, operating navigation structures which are part of the authorized Ohio River Navigation System. The continued operation and maintenance of this system take precedence over the purposes of the WCA, except that such operation and maintenance will be consistent with the basic purpose of the WCA as regards prohibition of hunting, vandalism, and dumping of refuse. Management of the WCA to achieve its intended purposes will, to the extent practicable, be accomplished in a manner consistent and compatible with continued generation of electricity and navigation on the Ohio River, including operation and maintenance of the McAlpine Locks and Dam and the Louisville Repair Station and material storage areas located on Shippingport Island.
§ 331.2 Policy.
(a) It is the policy of the Secretary of the Army, acting through the Chief of Engineers, to manage the natural and cultural resources of the WCA in the public interest, providing the public with safe and healthful recreational opportunities while protecting and enhancing these resources.
(b) Unless otherwise indicated herein, the term District Engineer shall include the authorized representatives of the District Engineer.
(c) The WCA shall be available to the public without regard to sex, race, color, creed or national origin. No lessee, licensee or concessionaire providing a service to the public shall discriminate against any person because of sex, race, creed, color, or national origin in the conduct of the operations under the lease, license, or concession contract.
§ 331.3 Hunting and trapping.
Unless authorized in writing by the District Engineer:
(a) The hunting, trapping, catching, molesting, killing, or having in possession any wild animal or bird, or taking the eggs of any such bird, is prohibited.
(b) Possession of equipment (including, but not limited to, firearms, ammunition, traps, projectile firing devices including bow and arrow) which could be used for hunting, trapping, or the taking of wildlife, is prohibited.
§ 331.4 Fishing.
Unless otherwise authorized in writing by the District Engineer:
(a) Fishing is only permitted in accordance with the laws and regulations of the State within whose exterior boundaries that portion of the WCA is located, and such laws and regulations which are now or may hereafter be in effect are hereby adopted as part of these regulations.
(b) Fishing by means of the use of drugs, poisons, explosives, bow and arrow or electricity is prohibited.
(c) Commercial fishing and fishing with gill nets, trammel nets, hoop nets, bow and arrow or trot lines is prohibited.
§ 331.5 Explosives and fireworks.
Unless otherwise authorized in writing by the District Engineer.
(a) The possession or use of fireworks is prohibited.
(b) The possession or use of explosives is prohibited.
§ 331.6 Public property.
Unless otherwise authorized in writing by the District Engineer, the destruction, injury, defacement, removal, or any alteration of public property including, but not limited to natural formations, paleontological features, historical and archaeological features and vegetative growth is prohibited. Any such destruction, removal, or alteration of public property shall be in accordance with the conditions of any permission granted.
§ 331.7 Sanitation.
(a) Garbage, trash, rubbish, litter, or any other waste material or waste liquid generated on the WCA shall be removed from the area or deposited in receptacles provided for that purpose. The improper disposal of such wastes within the boundaries of the WCA is prohibited.
(b) The use of refuse containers for the disposal of refuse not generated on the WCA is prohibited.
(c) It is a violation to bring any material onto the WCA for the purpose of disposal.
(d) The discharge or placing of sewage, galley waste, garbage, refuse or pollutants into the WCA waters from any vessel or watercraft is prohibited.
§ 331.8 Picnicking.
(a) Picnicking is permitted only in designated areas.
(b) Picnickers shall remove all personal equipment and clean their sites upon departure.
§ 331.9 Camping.
Camping is not permitted within the WCA.
§ 331.10 Swimming.
Swimming is prohibited unless authorized in writing by the District Engineer.
§ 331.11 Special events.
(a) Special events including, but not limited to, water carnivals, boat regattas, music festivals, dramatic presentations, or other special recreation programs are prohibited unless written permission has been granted by the District Engineer.
(b) The public shall not be charged any fee by the sponsor of such permitted event unless the District Engineer has approved in writing the proposed schedule of fees. The District Engineer shall have authority to revoke permission and require removal of any equipment upon failure of the sponsor to comply with terms and conditions of the permit/permission. Any violation shall constitute a separate violation for each calendar day in which it occurs.
§ 331.12 Vehicles.
(a) The use of a vehicle off roadways is prohibited except as may be authorized by the District Engineer.
(b) Vehicles shall not be parked in violation of any posted restriction, or in such a manner as to endanger any Federal property to include natural features. The owner of any vehicle parked in violation of this section shall be presumed to have parked it, and unless rebutted such presumption will be sufficient to sustain a conviction as provided for in § 331.25.
(c) Vehicles shall be operated in accordance with all posted regulations.
(d) Driving or operating any vehicle in a careless, negligent, or reckless manner, heedlessly or in willful disregard for the safety of other persons, or in such manner as to endanger any property or environmental feature, or without due care or at a speed greater than is reasonable and prudent under prevailing conditions with regard to traffic, weather, road, light and surface conditions, is prohibited.
(e) This section pertains to all vehicles, including, but not limited to, automobiles, trucks, motorcycles, minibikes, trail bikes, snowmobiles, dune buggies, all terrain vehicles, bicycles, trailers, campers, or any other such equipment.
(f) Except as authorized by the District Engineer, no person shall operate any motorized vehicle without a proper and effective exhaust muffler, or with an exhaust muffler cutout open, or in any other manner which renders the exhaust muffler ineffective in muffling the sound of engine exhaust.
§ 331.13 Vessels.
(a) Vessels or other watercraft may be operated in the WCA waters except in prohibited or restricted areas in accordance with posted regulations and applicable Federal, State and local laws.
(b) All vessels when not in actual use shall be removed from the WCA unless securely moored at mooring facilities approved by the District Engineer. The placing of floating or stationary mooring facilities to, or interfering with, a buoy, channel marker, or other navigational aid is prohibited.
(c) The operation of vessels or other watercraft in a careless, negligent, or reckless manner so as to endanger any property (including the operator and/or user(s) of the vessel or watercraft) is prohibited.
§ 331.14 Aircraft.
(a) The operation of aircraft on WCA lands and waters is prohibited, unless authorized in writing by the District Engineer.
(b) Except in extreme emergencies threatening human life or serious property loss, the air delivery of any person or thing by parachute, helicopter, or other means onto project lands or waters without written permission of the District Engineer is prohibited.
(c) The provisions of this section shall not be applicable to aircraft engaged on official business of the Federal Government or used in emergency rescue in accordance with the directions of the District Engineer.
§ 331.15 Fires.
Open fires are prohibited unless confined to fireplaces, grills, or other facilities designed for this purpose as designated by the District Engineer. Fires shall not be left unattended and must be completely extinguished prior to departure.
§ 331.16 Interference with government employees.
Interference with any Government employee in the conduct of his or her official duties pertaining to the administration of these regulations is prohibited. It is a violation to fail to comply with a lawful order directed by any Government employee or to knowingly give any false, fictitious, or fraudulent report or other information to any government employee in the performance of his or her official duties pertaining to the administration of these regulations.
§ 331.17 Minerals.
All activities in connection with prospecting, exploration, development, mining or other removal or the processing of mineral resources and all uses reasonably incident thereto are prohibited.
§ 331.18 Restrictions.
The District Engineer may establish and post a schedule of visiting hours and/or restrictions on the public use of a portion or portions of the WCA. The District Engineer may close or restrict the use of the WCA or portion of the WCA when necessitated by reason of public health, public safety, security, maintenance, or other reasons in the public interest. Entering or using the project in a manner which is contrary to the schedule of visiting hours, closure or restrictions is prohibited.
§ 331.19 Commercial activities.
Unless otherwise authorized in writing by the District Engineer, the engaging in or solicitation of business or money is prohibited.
§ 331.20 Advertisement.
Unless otherwise authorized in writing by the District Engineer, advertising by the use of billboards, signs, markers, audio devices, or any other means whatsoever including handbills, circulars, and posters is prohibited. Vessels or vehicles with semipermanent or permanently installed signs are exempt if being used for authorized recreational activities or special events and in compliance with all other rules and regulations pertaining to vessels and vehicles.
The construction, placing, or continued existence of any structure of any kind under, upon, in, or over WCA lands or waters is prohibited unless a permit, lease, license, or other appropriate written agreement therefor has been issued by the District Engineer. Structures not so authorized are subject to summary removal or impoundment by the District Engineer. The design, construction, placing, existence, or use of structures in violation of the terms of the permit, lease, license, or other written agreement therefor is prohibited.
§ 331.22 Abandonment of personal property.
(a) Personal property of any kind left unattended upon WCA lands or waters for a period of 24 hours shall be considered abandoned and may be impounded and stored at a storage point designated by the District Engineer who may assess a reasonable impoundment fee. Such fee shall be paid before the impounded property is returned to its owner.
(b) If abandoned property is not claimed by its owner within 3 months after the date it is received at the storage point designated by the District Engineer, it may be disposed of by public or private sale or by other means determined by the District Engineer. Any net proceeds from the sale of property shall be conveyed unto the Treasury of the United States as miscellaneous receipts.
§ 331.23 Control of animals.
(a) No person shall bring or allow horses, cattle, or other livestock in the WCA.
(b) No person shall bring dogs, cats, or other pets into the WCA unless penned, caged, or on a leash under 6 feet in length, or otherwise under physical restraint at all times. Unclaimed or unattended animals are subject to immediate impoundment and removal in accordance with State and local laws.
§ 331.24 Permits.
It shall be a violation of these regulations to refuse to or fail to comply with the terms or conditions of any permit isued by the District Engineer.
§ 331.25 Violation of regulations.
Anyone violating the provisions of this regulation shall be subject to a fine of not more than $500 or imprisonment for not more than 6 months, or both. All persons designated by the Chief of Engineers, U.S. Army Corps of Engineers, for that purpose shall have the authority to issue a citation for the violation of these regulations, requiring the appearance of any person charged with violation to appear before the U.S. Magistrate within whose jurisdiction the violation occurred.
PARTS 332-399 [RESERVED]
CHAPTER IV—AMERICAN BATTLE MONUMENTS COMMISSION
PART 400—EMPLOYEE RESPONSIBILITIES AND CONDUCT
§ 400.1 Cross-references to employees’ ethical conduct standards, financial disclosure regulations and other conduct rules.
Employees of the American Battle Monuments Commission are subject to the executive branch-wide standards of ethical conduct and financial disclosure regulations at 5 CFR parts 2634 and 2635 as well as the executive branch-wide employee responsibilities and conduct regulations at 5 CFR part 735.
PART 401—MONUMENTS AND MEMORIALS
§ 401.1 Purpose.
This part provides guidance on the execution of the responsibilities given by Congress to the American Battle Monuments Commission (Commission) regarding memorials and monuments commemorating the service of American Armed Forces at locations outside the United States.
§ 401.2 Applicability and scope.
This part applies to all agencies of the United States Government, State and local governments of the United States and all American citizens, and private and public American organizations that have established or plan to establish any permanent memorial commemorating the service of American Armed Forces at a location outside the United States. This chapter does not address temporary monuments, plaques and other elements that deployed American Armed Forces wish to erect at a facility occupied by them outside the United States. Approval of any such temporary monument, plaque or other element is a matter to be determined by the concerned component of the Department of Defense consistent with host nation law and any other constraints applicable to the presence of American Armed Forces at the overseas location.
§ 401.3 Background.
Following World War I many American individuals, organizations and governmental entities sought to create memorials in Europe commemorating the service of American Armed Forces that participated in that war. Frequently such well-intended efforts were undertaken without adequate regard for many issues including host nation approvals, design adequacy, and funding for perpetual maintenance. As a result, in 1923 Congress created the American Battle Monuments Commission to generally oversee all memorials created by Americans or American entities to commemorate the service of American Armed Forces at locations outside the United States.
§ 401.4 Responsibility.
The Commission is responsible for building and maintaining appropriate memorials commemorating the service of American Armed Forces at any place outside the United States where Armed Forces have served since April 6, 1917.
§ 401.5 Control and supervision of materials, design, and building.
The Commission controls the design and prescribes regulations for the building of all memorial monuments and buildings commemorating the service of American Armed Forces that are built in a foreign country or political division of the foreign country that authorizes the Commission to carry out those duties and powers.
§ 401.6 Approval by National Commission of Fine Arts.
A design for a memorial to be constructed at the expense of the United States Government must be approved by the National Commission of Fine Arts before the Commission can accept it.
§ 401.7 Cooperation with other than Government entities.
The Commission has the discretion to cooperate with citizens of the United States, States, municipalities, or associations desiring to build war memorials outside the United States.
§ 401.8 Requirement for Commission approval.
No administrative agency of the United States Government may give assistance to build a memorial unless the plan for the memorial has been approved by the Commission. In deciding whether to approve a memorial request the Commission will apply the criteria set forth in § 401.9.
§ 401.9 Evaluation criteria.
Commission consideration of a request to approve a memorial will include, but not be limited to, evaluation of following criteria:
| Criteria | Discussion |
|---|---|
| (a) How long has it been since the events to be honored took place? | Requests made during or immediately after an event are not generally subject to approval. The Commission will not approve a memorial until at least 10 years after the officially designated end of the event. It should be noted that this is the same period of time made applicable to the establishment of memorials in the District of Columbia and its environs by the Commemorative Works Act. |
| (b) How will the perpetual maintenance of the memorial be funded? | Available adequate funding or other specific arrangements addressing perpetual care are a prerequisite to any approval. |
| (c) Has the host nation consented? | Host nation approval is required. |
| (d) Is an overseas site appropriate for the proposed permanent memorial? | In many circumstances a memorial located within the United States will be more appropriate. |
| (e) Is the proposed memorial intended to honor an individual or small unit? | Memorials to elements smaller than a division or comparable unit or to an individual will not be approved unless the services of such unit or individual clearly were of such distinguished character as to warrant a separate memorial. |
| (f) Is the memorial historically accurate? | Representations should be supported by objective authorities. |
| (g) Is the proposed memorial intended to honor an organizational element of the American Armed Forces rather than soldiers from a geographical area of the United States? | As a general rule, memorials should be erected to organizations rather than to troops from a particular locality of the United States. |
| (h) Does the contribution of the element to be honored warrant a separate memorial? | The commemoration should normally be through a memorial that would have the affect of honoring all of the American Armed Forces personnel who participated rather than a select segment of the organizational participants. |
§ 401.10 Monument Trust Fund Program.
Pursuant to the provisions of 36 U.S.C. 2106(d), the Commission operates a Monument Trust Fund Program (MTFP) in countries where there is a Commission presence. Under the MTFP, the Commission may assume both the sponsor’s legal interests in the monument and responsibility for its maintenance. To be accepted in the Monument Trust Fund Program, an organization must develop an acceptable maintenance plan and transfer sufficient monies to the Commission to fully fund the maintenance plan for at least 30 years. to The Commission will put this money into a trust fund of United States Treasury instruments that earn interest. Prior to acceptance into the MTFP, the sponsor must perform any deferred maintenance necessary to bring the monument up to a mutually agreeable standard. At that time, the Commission may assume the sponsoring organization’s interest in the property and responsibility for all maintenance and other decisions concerning the monument. Once accepted into the program, the Commission will provide for all necessary maintenance of the monument and charge the cost to the trust fund. to The sponsoring organization or others interested in the monument may add to the trust fund at any time to insure that adequate funds remain available. to The Commission will maintain the monument for as long a period as the trust fund account permits.
§ 401.11 Demolition criteria.
As authorized by the provisions of 36 U.S.C. 2106(e), the Commission may take necessary action to demolish any war memorial built outside the United States by a citizen of the United States, a State, a political subdivision of a State, a governmental authority (except a department, agency, or instrumentality of the United States Government), a foreign agency, or a private association and to dispose of the site of the memorial in a way the Commission decides is proper, if—
(a) The appropriate foreign authorities agree to the demolition; and
(b)(1) The sponsor of the memorial consents to the demolition; or
(2) The memorial has fallen into disrepair and a reasonable effort by the Commission has failed—
(i) To persuade the sponsor to maintain the memorial at a standard acceptable to the Commission; or
(ii) To locate the sponsor.
PARTS 402-403 [RESERVED]
PART 404—PROCEDURES AND GUIDELINES FOR COMPLIANCE WITH THE FREEDOM OF INFORMATION ACT
§ 404.1 General.
The information in this part is furnished for the guidance of the public and in compliance with the requirements of the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. Nothing in this part shall be construed to entitle any person to any service or to the disclosure of any record to which such person is not entitled under the FOIA. The rules in this part should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”).
§ 404.2 Authority and functions.
The general functions of the American Battle Monuments Commission (ABMC or Commission), as provided by statute, 36 U.S.C. 2101 et seq., are to build and maintain suitable memorials commemorating the service of American Armed Forces and to maintain permanent American military cemeteries in foreign countries.
§ 404.3 Organization.
(a) Personnel. (1) The Commission is composed of not more than 11 members appointed by the President.
(2) The day to day operation of the Commission is under the direction of a Secretary appointed by the President.
(3) Principal officials subordinate to the Secretary include the Deputy Secretary, Chief Operating Officer, Chief of Staff, Executive Officer, Chief Financial Officer, Chief of Human Resources and Administration, Chief Information Officer, Director of Cemetery Operations, Executive Engineer, General Counsel, and Public Affairs Officer.
(4) The Commission also creates temporary offices when tasked with major additional responsibilities not of a permanent nature.
(b) Locations. (1) The principal office of the American Battle Monuments Commission is located at 2300 Clarendon Boulevard, Suite 500, Arlington, VA 22201, (703) 696-6900.
(2) The American Battle Monuments Commission maintains an overseas field office in Paris, France, and cemetery offices at 25 locations in Belgium, France, Italy, Luxembourg, Mexico, the Netherlands, Panama, the Philippines, Tunisia, and the United Kingdom.
§ 404.4 Access to information.
(a) Contact information. (1) Individuals wishing to file a request under the Freedom of Information Act (FOIA) should address their request in writing to the FOIA Office, American Battle Monuments Commission, 2300 Clarendon Boulevard, Suite 500, Arlington, VA 22201, or to [email protected], or via https://www.foia.gov.
(2) The American Battle Monuments Commission makes available information pertaining to Commission matters within the scope of 5 U.S.C. 552(a)(2), including records that have been requested three or more times, by publishing them electronically at the ABMC home page at https://www.abmc.gov/foia. Additional information may be found on the National FOIA Portal at https://www.foia.gov. Note: The ABMC.gov site provides all of the information the Commission has regarding burials at its cemeteries. ABMC does not have service records, casualty lists, or information on burials within the United States.
(b) Requests. (1) Requesters must provide contact information, such as their phone number, email address, and/or mailing address, to assist ABMC in communicating with them and providing released records.
(2)(i) Requests for records must reasonably describe the records sought. Requesters must describe the records sought in sufficient detail to enable agency personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include specific information that may help ABMC identify the requested records, such as the date, title or name, author, recipient, subject matter, case number, file designation, or reference number. Before submitting their requests, requesters may contact the ABMC FOIA Assistant or FOIA Public Liaison to discuss the records they seek and to receive assistance in describing the records.
(ii) If a request does not reasonably describe the records sought, response to the request may be delayed. If, after receiving a request, ABMC determines that the request does not reasonably describe the records sought, ABMC must inform the requester what additional information is needed or why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with the FOIA Assistant or FOIA Public Liaison.
(3) Requests may specify the preferred form or format (including electronic formats) for the records sought. ABMC will accommodate the request if the record is readily reproducible in that form or format.
(c) Responses to requests. (1) The ABMC FOIA Office is responsible for responding to FOIA requests. Upon receipt of any perfected request for records, the FOIA Office will determine within 20 days (excepting Saturdays, Sundays, and legal public holidays) of the date the request is received in the FOIA Office whether it is appropriate to grant the request and will immediately provide written notification to the person making the request.
(2) ABMC responds to requests in the order of receipt, using multitrack processing. Tracks include simple, and complex, based on whether unusual circumstances apply (see paragraph (d) of this section), the volume of potential records, the need for consultation or referral, and the amount of work or time needed to process the request.
(3) ABMC will acknowledge requests with a tracking number, summary of the request, estimated completion dates, track information, the opportunity to narrow or modify the scope, and contact information for the FOIA Public Liaison.
(4) In determining which records are responsive to a request, ABMC ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, ABMC must inform the requester of that date.
(d) Extending time limits. If the ABMC FOIA Office determines that unusual circumstances apply to the processing of a request, and provides timely written notice to the requester, ABMC may extend the time limits prescribed in paragraphs (c) and (h) of this section for not more than 10 days (excepting Saturdays, Sundays, or legal public holidays). Where unusual circumstances merit an extension of more than 10 working days, ABMC will provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request.
(1) As used in this paragraph (d), but only to the extent reasonably necessary to the proper processing of the particular request, the term unusual circumstances means:
(i) The need to search for and collect the requested records from establishments that are separated from the office processing the request;
(ii) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(ii) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency which have a substantial subject matter interest therein.
(2) Extensions will be by written notice to the persons making the request. The notice of extension will set forth the reasons for the extension and the date the determination is expected, and will notify the requester of the right to seek assistance from ABMC’s FOIA Public Liaison to resolve any disputes between the requester and ABMC, or to seek dispute resolution services from the Office of Government Information Services.
(3) Before issuing a written notice extending time limits, the agency shall provide the person an opportunity to limit the scope of the request so that it may be processed within that time limit or an opportunity to arrange with the agency an alternative time frame for processing the request or a modified request.
(4) When ABMC reasonably believes that a requester, or a group of requestors acting in concert, has submitted requests that constitute a single request, involving clearly related matters, ABMC may aggregate those requests for purposes of this paragraph (d). One element to be considered in determining whether a belief would be reasonable is the time period over which the requests have occurred.
(5) If ABMC fails to comply with the extended time limit, it may not charge search fees (or for requesters with preferred fee status, may not charge duplication fees), except if unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, ABMC may charge search fees (or, for requesters in preferred fee status, may charge duplication fees) if timely written notice has been made to the requester and ABMC has discussed with the requester (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request.
(6) If a court determines that exceptional circumstances exist, ABMC’s failure to comply with a time limit shall be excused for the length of time provided by the court order. Refusal by the person to reasonably modify the request or arrange such an alternative time frame shall be considered as a factor in determining whether exceptional circumstances exist.
(e) Consultation, referral, and classified information. When reviewing records located in response to a request, ABMC will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, the ABMC must proceed in one of the following ways:
(1) Consultation. When ABMC records contain within them information of interest to another agency, ABMC should typically consult with that other agency prior to making a release determination.
(2) Referral. When an ABMC record originated with a different agency or contains significant information that originated with a different agency, or when ABMC believes that a different agency is best able to determine whether to disclose a record, ABMC typically should refer the responsibility for responding to the request regarding that record to that agency. When ABMC refers any part of the responsibility for responding to a request to another agency, it must document and maintain a copy of the record, and notify the requester of the referral, informing the requester of the name of the agency and FOIA contact information.
(3) Classified information. On receipt of any request involving classified information, ABMC must determine whether the information is currently and properly classified in accordance with applicable classification rules. ABMC must refer the responsibility for responding to the request regarding that information to the agency that classified the information, or that should consider the information for classification.
(f) Expedited processing. (1) Requests and appeals will be taken out of order and given expedited treatment whenever it is determined that they involve:
(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged Federal Government activity, beyond the public’s right to know about Government activity generally, if made by a person primarily engaged in disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the Government’s integrity which affect public confidence.
(2) A request for expedited processing may be made at the time of the initial request for records or at any later time. A request must include a statement, certified to be true and correct to the best of that person’s knowledge and belief, explaining in detail the basis for requesting expedited processing.
(3) Within 10 days of receipt of a request for expedited processing, ABMC will decide whether to grant it and will notify the requester of the decision. If a request for expedited treatment is granted, the request will be given priority and will be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously.
(g) Grants and denials of requests. (1) Once ABMC determines it will grant a request in full or in part, it shall notify the requester in writing. ABMC must also inform the requester of any fees charged under § 404.10 and must disclose the requested records to the requester promptly upon payment of any applicable fees. ABMC must inform the requester of the availability of its FOIA Public Liaison to offer assistance.
(2) ABMC may provide interim releases for voluminous requests.
(3) If ABMC determines that a full disclosure of a requested record is not possible, it will consider whether partial disclosure of information is possible. Records disclosed in part will be marked clearly to show the amount of information deleted and the exemption under which the deletion was made, unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted will also be indicated on the record, if technically feasible.
(4) If the request is denied, in part or in full, the written notification to the requester shall include the reasons for the denial and the estimated volume withheld (unless indicated via markings, or if providing such an estimate would harm an interest protected by an exemption). The notification must inform the requester of:
(i) The requester’s right to seek assistance from ABMC’s FOIA Public Liaison;
(ii) The requester’s right to lodge an appeal with ABMC within 90 days after the date of the denial; and
(iii) The requester’s right to seek dispute resolution services from the Office of Government Information Services (OGIS).
(h) Appeals. Appeals shall be set forth in writing within 90 days of receipt of a denial and addressed to the FOIA Office at the address specified in paragraph (a) of this section. The appeal should clearly identify the agency determination that is being appealed and the assigned request number. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, “Freedom of Information Act Appeal.” The appeal shall include a statement explaining the basis for the appeal. Appeals will be adjudicated by the ABMC Secretary, or his designee, and the adjudication will be set forth in writing within 20 days of receipt of the appeal in the ABMC FOIA Office (excepting Saturdays, Sundays, and legal public holidays). If, on appeal, the denial is upheld in whole or in part, the written determination will also contain a notification of the provisions for judicial review and contact information for OGIS dispute resolution services. An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.
§ 404.5 Inspection and copying.
When a request for information has been approved pursuant to § 404.4, the person making the request may make an appointment to inspect or copy the materials requested during regular business hours by writing or telephoning the FOIA Officer at the address or telephone number listed in § 404.4(b). Such materials may be copied and reasonable facilities will be made available for that purpose. Copies of individual pages of such materials will be made available at the price per page specified in § 404.7(d); however, the right is reserved to limit to a reasonable quantity the copies of such materials which may be made available in this manner when copies also are offered for sale by the Superintendent of Documents.
§ 404.6 Definitions.
For the purpose of this part:
(a) All the terms defined in the Freedom of Information Act apply.
(b) The term direct costs means those expenditures that ABMC actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting the facility in which the records are stored.
(c) The term search means the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of information within records and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. ABMC employees should ensure that searching for material is done in the most efficient and least expensive manner so as to minimize costs for both the agency and the requester. For example, employees should not engage in line-by-line search when merely duplicating an entire document would prove the less expensive and quicker method of complying with a request. Search should be distinguished, moreover, from review of material in order to determine whether the material is exempt from disclosure (see paragraph (f) of this section).
(d) The term duplication means the making of a copy of a document, or of the information contained in it, necessary to respond to a FOIA request. Such copies can take the form of paper, microform, audio-visual materials, or electronic records (e.g., magnetic tape or disk), among others. The requester’s specified preference of form or format of disclosure will be honored if the record is readily reproducible in that format.
(e) The term review refers to the process of examining documents located in response to a request to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(f) The term commercial use request refers to a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, ABMC must determine the use to which a requester will put the documents requested. Moreover, where an ABMC employee has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the employee should seek additional clarification before assigning the request to a specific category.
(g) The term educational institution refers to a school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with his or her role at the educational institution. Agencies may seek verification from the requester that the request is in furtherance of scholarly research and agencies will advise requesters of their placement in this category.
(h) The term non-commercial scientific institution refers to an institution that is not operated on a commercial basis (as that term is referenced in paragraph (g) of this section), and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry.
(i) The term representative of the news media refers to any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast news to the public at large, and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the internet. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity will be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, agencies can also consider a requester’s past publication record in making this determination. Agencies will advise requesters of their placement in this category. A request for records supporting the news-dissemination function of the requester will not be considered to be for a commercial use.
§ 404.7 Fees to be charged—general.
ABMC shall charge fees that recoup the full allowable direct costs it incurs. ABMC will collect all applicable fees before sending copies of records to the requester. Moreover, it shall use the most efficient and least costly methods to comply with requests for documents made under the FOIA. ABMC may recover the cost of searching for and reviewing records even if there is ultimately no disclosure of records.
(a) Manual searches for records. ABMC will charge at the salary rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the search.
(b) Computer searches for records. ABMC will charge at the salary rate(s) (i.e., basic pay plus 16 percent) of the employee(s) making the search. Before assessing fees associated with creating a new computer program, ABMC will ensure that requester is first notified and agrees to pay such fees, pursuant to paragraph (g)(3) of this section.
(c) Review of records. Only requesters who are seeking documents for commercial use may be charged for time spent reviewing records to determine whether they are exempt from mandatory disclosure. Charges may be assessed only for the initial review; i.e., the review undertaken the first time ABMC analyzes the applicability of a specific exemption to a particular record or portion of a record. Records or portions of records withheld in full under an exemption that is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered. The costs for such a subsequent review is assessable.
(d) Duplication of records. Records will be duplicated at a rate of $.10 per page. For copies prepared by computer, such as tapes or printouts, ABMC shall charge the actual cost, including operator time, of production of the tape or printout. For other methods of reproduction or duplication, ABMC will charge the actual direct costs of producing the document(s). If ABMC estimates that duplication charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.
(e) Other charges. (1) When it elects to charge them, ABMC will recover the full costs of providing services such as certifying that records are true copies or sending records by special methods such as express mail.
(2) For requests that require the retrieval of records stored by an agency at a Federal records center operated by the National Archives and Records Administration (NARA), ABMC will charge additional costs in accordance with the Transactional Billing Rate Schedule established by NARA.
(f) Payment of fees. Remittances shall be in the form either of a personal check or bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made payable to the order of the Treasury of the United States and mailed to the FOIA Officer, American Battle Monuments Commission, 2300 Clarendon Blvd., Suite 500, Arlington, VA 22201. A receipt for fees paid will be given upon request.
(g) Restrictions on assessing fees. With the exception of requesters seeking documents for a commercial use, ABMC will provide the first 100 pages of duplication and the first 2 hours of search time without charge. Moreover, ABMC will not charge fees to any requester, including commercial use requesters, if the cost of collecting a fee would be equal to or greater than the fee itself.
(1) The elements to be considered in determining the cost of collecting a fee are the administrative costs of receiving and recording a requester’s remittance, and processing the fee for deposit in the Treasury Department’s special account.
(2) For purposes of the restrictions on assessment of fees in this paragraph (g), the word pages refers to paper copies of 8
(3) Similarly, the term search time in this paragraph (g) has as its basis, manual search. To apply this term to searches made by computer, ABMC will determine the hourly cost of operating the central processing unit and the operator’s hourly salary plus 16 percent. When the cost of search equals the equivalent dollar amount of two hours of the salary of the person performing the search, i.e., the operator, ABMC will begin assessing charges.
§ 404.8 Fees to be charged—categories of requesters.
For purposes of assessing fees, the FOIA establishes four categories of requesters: Commercial use requesters, educational and non-commercial scientific institution requesters; news media requesters, and all other requesters.
(a) Commercial use requesters. When ABMC receives a request for documents for commercial use, it will assess charges that recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Commercial use requesters are not entitled to 2 hours of free search time nor 100 free pages of reproduction of documents.
(b) Educational and noncommercial scientific institution requesters. Requesters in this category who meet the criteria in § 404.6(g) or (h) are entitled to two free hours of search time and the first 100 pages of duplication without charge. To be eligible for inclusion in this category, a requester must show that the request is authorized by and under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a non-commercial scientific institution) research.
(c) Requesters who are representatives of the news media. Requesters in this category who meet the criteria in § 404.6(i) are entitled to two free hours of search time and the first 100 pages of duplication without charge. To be eligible for inclusion in this category, a requester must show that the records are not sought for a commercial use, but are sought in furtherance of the news dissemination function of the requester.
(d) All other requesters. ABMC shall charge requesters who do not fit into any of the categories in paragraphs (a) through (c) of this section fees that recover the full reasonable direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first 2 hours of search time shall be furnished without charge.
§ 404.9 Miscellaneous fee provisions.
(a) Charging interest—notice and rate. ABMC may begin assessing interest charges on an unpaid bill starting on the 31st day following the day on which the billing was sent. The fact that the fee has been received by ABMC within the 30-day grace period, even if not processed, will suffice to stay the accrual of interest. Interest will be at the rate prescribed in 31 U.S.C. 3717 and will accrue from the date of the billing.
(b) Charges for unsuccessful search. ABMC may assess charges for time spent searching, even if it fails to locate the records or if records located are determined to be exempt from disclosure. If ABMC estimates that search charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his or her willingness to pay fees as high as those anticipated. Such a notice shall offer the requester the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.
(c) Aggregating requests. A requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When ABMC reasonably believes that a requester, or a group of requestors acting in concert, has submitted requests that constitute a single request, involving clearly related matters, ABMC may aggregate those requests and charge accordingly. One element to be considered in determining whether a belief would be reasonable is the time period over which the requests have occurred.
(d) Advance payments. ABMC may not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request, unless:
(1) ABMC estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250. Then, ABMC will notify the requester of the likely cost and obtain satisfactory assurance of full payment where the requester has a history of prompt payment of FOIA fees, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment; or
(2) A requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 days of the date of the billing). Then, ABMC may require the requester to pay the full amount owed plus any applicable interest as provided in paragraph (a) of this seciton or demonstrate that he or she has, in fact, paid the fee, and to make an advance payment of the full amount of the estimated fee before the agency begins to process a new request or a pending request from that requester.
(3) When ABMC acts under paragraph (d)(1) or (2) of this section, the administrative time limits prescribed in the FOIA, 5 U.S.C. 552(a)(6) (i.e., 20 working days from receipt of initial requests and 20 working days from receipt of appeals from initial denial, plus permissible extensions of these time limits), will begin only after ABMC has received fee payments described in paragraphs (d)(1) and (2) of this section.
(e) Effect of the Debt Collection Act. ABMC will comply with provisions of the Debt Collection Act of 1982 (Pub. L. 97-365), including disclosure to consumer reporting agencies and use of collection agencies, where appropriate, to encourage repayment.
(f) Tolling. If the requester has indicated a willingness to pay some designated amount of fees, but the ABMC estimates that the total fee will exceed that amount, ABMC will toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The agency will inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.
(g) Reducing costs. At any time a request may contact the ABMC FOIA Public Liaison or other FOIA professional to assist in reformulating a request to meet the requester’s needs at a lower cost.
§ 404.10 Waiver or reduction of charges.
Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the Government and is not primarily in the commercial interest of the requester.
(a) ABMC will waive its fees in whole or in part when it determines, based on all available information, that the following factors are satisfied:
(1) Disclosure of the requested information will shed light on identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated.
(2) The disclosure will contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. ABMC will consider the requester’s expertise in the subject area as well as the requester’s ability and intention to effectively convey information to the public. ABMC will presume that a representative of the news media satisfies this consideration.
(3) The disclosure is not primarily in the commercial interest of the requester. Requesters will be given an opportunity to provide explanatory information regarding this consideration. ABMC ordinarily will presume that when a news media requester has satisfied factors in paragraphs (a)(1) and (2) of this section, the request is not primarily in the commercial interest of the requester.
(b) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver must be granted for those records.
(c) Requests for a waiver or reduction of fees should be made when the request is first submitted to the agency and should address the criteria referenced in paragraph (a) of this section. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester must pay any costs incurred up to the date the fee waiver request was received.
PART 406—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY AMERICAN BATTLE MONUMENTS COMMISSION
§ 406.101 Purpose.
This part effectuates section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
§ 406.102 Application.
This part applies to all programs or activities conducted by the agency.
§ 406.103 Definitions.
For purposes of this part, the term—
Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with impaired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency. For example, auxiliary aids useful for persons with impaired vision include readers, Brailled materials, audio recordings, telecommunications devices and other similar services and devices. Auxiliary aids useful for persons with impaired hearing include telephone handset amplifiers, telephones compatible with hearing aids, telecommunication devices for deaf persons (TDD’s), interpreters, notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the complainant’s name and address and describes the agency’s alleged discriminatory action in sufficient detail to inform the agency of the nature and date of the alleged violation of section 504. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination.
Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.
Handicapped person means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes—
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one of more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addition and alcholism.
(2) Major life activities includes functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
(4) Is regarded as having an impairment means—
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this definition but is treated by the agency as having such an impairment.
Qualified handicapped person means—
(1) With respect to any agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature; or
(2) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity.
(3) Qualified handicapped person is defined for purposes of employment in 29 CFR 1613.702(f), which is made applicable to this part by § 406.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), and the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used in this part, section 504 applies only to programs or activities conducted by Executive agencies and not to federally assisted programs.
§§ 406.104-406.109 [Reserved]
§ 406.110 Self-evaluation.
(a) The agency shall, by April 9, 1987, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, until three years following the completion of the self-evaluation, maintain on file and make available for public inspections:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
§ 406.111 Notice.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.
§§ 406.112-406.129 [Reserved]
§ 406.130 General prohibitions against discrimination.
(a) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualfied handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) The agency may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified handicapped persons to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified handicapped persons to discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
§§ 406.131-406.139 [Reserved]
§ 406.140 Employment.
No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.
§§ 406.141-406.148 [Reserved]
§ 406.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in § 406.150, no qualified handicapped person shall, because the agency’s facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
§ 406.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by handicapped persons. This paragraph does not—
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by handicapped persons; or
(2) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 406.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that handicapped persons receive the benefits and services of the program or activity.
(b) Methods. The agency may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock, or any other methods that result in making its programs or activities readily accessible to and usable by handicapped persons. The agency is nor required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. The agency, in making alterations to existing buildings, shall meet accessibility requirements to the extent compelled by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any regulations implementing it. In choosing among available methods for meeting the requirements of this section, the agency shall give priority to those methods that offer programs and activities to qualified handicapped persons in the most integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the obligations established under this section by June 6, 1986, except that where structural changes in facilities are undertaken, such changes shall be made by April 7, 1989, but in any event as expeditiously as possible.
(d) Transition plan. In the event that structural changes to facilities will be undertaken to achieve program accessibility, the agency shall develop, by October 7, 1986, a transition plan setting forth the steps necessary to complete such changes. The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the development of the transition plan by submitting comments (both oral and written). A copy of the transition plan shall be made available for public inspection. The plan shall, at a minimum—
(1) Identify physical obstacles in the agency’s facilities that limit the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
§ 406.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by handicapped persons. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.
§§ 406.152-406.159 [Reserved]
§ 406.160 Communications.
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf persons (TDD’s) or equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 406.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, handicapped persons receive the benefits and services of the program or activity.
§§ 406.161-406.169 [Reserved]
§ 406.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) The Director, Personnel and Administration shall be responsible for coordinating implementation of this section. Complaints may be sent to the Director, Personnel and Administration, American Battle Monuments Commission, Room 5127, Pulaski Building, 20 Massachusetts Ave., NW., Washington, DC 20314.
(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found;
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 406.170(g). The agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the agency.
(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.
§§ 406.171-406.999 [Reserved]
PART 407—PROCEDURES AND GUIDELINES FOR COMPLIANCE WITH THE PRIVACY ACT OF 1974
§ 407.1 Purpose and scope of the regulations in this part.
The regulations in this part set forth ABMC’s procedures under the Privacy Act, as required by 5 U.S.C. 552a(f), with respect to systems of records maintained by ABMC. The rules in this part apply to all records maintained by ABMC that are retrieved by an individual’s name or by some identifying number, symbol, or other identifying particular assigned to the individual. These regulations establish procedures by which an individual may exercise the rights granted by the Privacy Act to determine whether an ABMC system of records contains a record pertaining to him or her; to gain access to such records; and to request correction or amendment of such records. These rules should be read together with the Privacy Act, which provides additional information about records maintained on individuals.
§ 407.2 Definitions.
The definitions in subsection (a) of the Privacy Act (5 U.S.C. 552a(a)) apply to this part. In addition, as used in this part:
ABMC means the American Battle Monuments Commission.
ABMC system means a system of records maintained by ABMC.
Business day means a calendar day, excluding Saturdays, Sundays, and legal public holidays.
General Counsel means the General Counsel of ABMC or his or her designee.
Individual means a citizen of the United States or an alien lawfully admitted for permanent residence.
Privacy Act or Act means the Privacy Act of 1974, as amended (5 U.S.C. 552a).
Secretary means the Secretary of ABMC or his or her designee.
You, your, or other references to the reader of the regulations in this part are meant to apply to the individual to whom a record pertains.
§ 407.3 Inquiries about ABMC’s systems of records or implementation of the Privacy Act.
Inquiries about ABMC’s systems of records or implementation of the Privacy Act should be sent to the following address: American Battle Monuments Commission, Office of the General Counsel, 2300 Clarendon Boulevard, Suite 500, Arlington VA 22201.
§ 407.4 Procedures for acquiring access to ABMC records pertaining to an individual.
The following procedures apply to records that are contained in an ABMC system:
(a) You may request to be notified if a system of records that you name contains records pertaining to you, and to review any such records, by writing to the Office of the General Counsel (see § 407.3). You also may call the Office of the General Counsel at (703) 696-6902 on business days, between the hours of 9 a.m. and 5 p.m., to schedule an appointment to make such a request in person. A request for records should be presented in writing and should identify specifically the ABMC system(s) involved. Your request to access records pertaining to you will be treated as a request under both the Privacy Act, as implemented by this part, and the Freedom of Information Act (5 U.S.C. 552), as implemented by part 404 of this title (36 CFR 404.1 through 404.10).
(b) Access to the records, or to any other information pertaining to you that is contained in the system, shall be provided if the identification requirements of § 407.5 are satisfied and the records are determined otherwise to be releasable under the Privacy Act and these regulations. ABMC shall provide you an opportunity to have a copy made of any such records about you. Only one copy of each requested record will be supplied, based on the fee schedule in § 407.8.
(c) ABMC will comply promptly with requests made in person at scheduled appointments, if the requirements of this section are met and the records sought are immediately available. ABMC will acknowledge, within 10 business days, mailed requests or personal requests for records that are not immediately available, and the information requested will be provided promptly thereafter.
(d) If you make your request in person at a scheduled appointment, you may, upon your request, be accompanied by a person of your choice to review your records. ABMC may require that you furnish a written statement authorizing discussion of your records in the accompanying person’s presence. A record may be disclosed to a representative chosen by you upon your proper written consent.
(e) Medical or psychological records pertaining to you shall be disclosed to you unless, in the judgment of ABMC, access to such records might have an adverse effect upon you. When such a determination has been made, ABMC may refuse to disclose such information directly to you. ABMC will, however, disclose this information to you through a licensed physician designated by you in writing.
(f) If you are unsatisfied with an adverse determination on your request to access records pertaining to you, you may appeal that determination using the procedures set forth in § 407.7(a).
§ 407.5 Identification required when requesting access to ABMC records pertaining to an individual.
ABMC will require reasonable identification of all individuals who request access to records in an ABMC system to ensure that records are disclosed to the proper person.
(a) The amount of personal identification required will of necessity vary with the sensitivity of the record involved. In general, if you request disclosure in person, you will be required to show an identification card, such as a driver’s license, containing your photograph and sample signature. However, with regard to records in ABMC systems that contain particularly sensitive and/or detailed personal information, ABMC reserves the right to require additional means of identification as are appropriate under the circumstances. These means include, but are not limited to, requiring you to sign a statement under oath as to your identity, acknowledging that you are aware of the criminal penalties for requesting or obtaining records under false pretenses or falsifying information (see 5 U.S.C. 552a(i)(3); 18 U.S.C. 1001).
(b) If you request disclosure by mail, ABMC will request such information as may be necessary to ensure that you are properly identified and for a response to be sent. Authorized means to achieve this goal include, but are not limited to, requiring that a mail request include a signed, notarized statement asserting your identity or a statement signed under oath as described in paragraph (a) of this section.
§ 407.6 Procedures for amending or correcting an individual’s ABMC record.
(a) You are entitled to request amendments to or corrections of records pertaining to you that you believe are not accurate, relevant, timely, or complete, pursuant to the provisions of the Privacy Act, including 5 U.S.C. 552a(d)(2). Such a request should be made in writing and addressed to the Office of the General Counsel (see § 407.3).
(b) Your request for amendments or corrections should specify the following:
(1) The particular record that you are seeking to amend or correct;
(2) The ABMC system from which the record was retrieved;
(3) The precise correction or amendment you desire, preferably in the form of an edited copy of the record reflecting the desired modification; and
(4) Your reasons for requesting amendment or correction of the record.
(c) ABMC will acknowledge a request for amendment or correction of a record within 10 business days of its receipt, unless the request can be processed and the individual informed of the General Counsel’s decision on the request within that 10-day period.
(d) If after receiving and investigating your request, the General Counsel agrees that the record is not accurate, timely, or complete, based on a preponderance of the evidence, then the record will be corrected or amended promptly. The record will be deleted without regard to its accuracy, if the record is not relevant or necessary to accomplish the ABMC function for which the record was provided or is maintained. In either case, you will be informed in writing of the amendment, correction, or deletion. In addition, if accounting was made of prior disclosures of the record, all previous recipients of the record will be informed of the corrective action taken.
(e) If after receiving and investigating your request, the General Counsel does not agree that the record should be amended or corrected, you will be informed promptly in writing of the refusal to amend or correct the record and the reason for this decision. You also will be informed that you may appeal this refusal in accordance with § 407.7.
(f) Requests to amend or correct a record governed by the regulations of another agency will be forwarded to such agency for processing, and you will be informed in writing of this referral.
§ 407.7 Procedures for appealing a refusal to amend or correct an ABMC record.
(a) You may appeal a refusal to amend or correct a record to the Secretary of ABMC. Such appeal must be made in writing within 30 business days of your receipt of the initial refusal to amend or correct your record. Your appeal should be sent to the Office of the General Counsel (see § 407.3), should indicate that it is an appeal, and should include the basis for the appeal.
(b) The Secretary will review your request to amend or correct the record, the General Counsel’s refusal, and any other pertinent material relating to the appeal. No hearing will be held.
(c) The Secretary shall render his or her decision on your appeal within 30 business days of its receipt by ABMC, unless the Secretary, for good cause shown, extends the 30-day period. Should the Secretary extend the appeal period, you will be informed in writing of the extension and the circumstances of the delay.
(d) If the Secretary determines that the record that is the subject of the appeal should be amended or corrected, the record will be so modified, and you will be informed in writing of the amendment or correction. Where an accounting was made of prior disclosures of the record, all previous recipients of the record will be informed of the corrective action taken.
(e) If your appeal is denied, you will be informed in writing of the following:
(1) The denial and the reasons for the denial;
(2) That you may submit to ABMC a concise statement setting forth the reasons for your disagreement as to the disputed record. Under the procedures set forth in paragraph (f) of this section, your statement will be disclosed whenever the disputed record is disclosed; and
(3) That you may seek judicial review of the Secretary’s determination under 5 U.S.C. 552a(g)(1).
(f) Whenever you submit a statement of disagreement to ABMC in accordance with paragraph (e)(2) of this section, the record will be annotated to indicate that it is disputed. In any subsequent disclosure, a copy of your statement of disagreement will be disclosed with the record. If ABMC deems it appropriate, a concise statement of the Secretary’s reasons for denying your appeal also may be disclosed with the record. While you will have access to this statement of the Secretary’s reasons for denying your appeal, such statement will not be subject to correction or amendment. Where an accounting was made of prior disclosures of the record, all previous recipients of the record will be provided a copy of your statement of disagreement, as well as any statement of the Secretary’s reasons for denying your appeal deemed appropriate.
§ 407.8 Fees charged to locate, review, or copy records.
(a) ABMC will charge no fees for search time or for any other time expended by ABMC to review a record. However, ABMC may charge fees where you request that a copy be made of a record to which you have been granted access. Where a copy of the record must be made in order to provide access to the record (e.g., computer printout where no screen reading is available), the copy will be made available to you without cost.
(b) Copies of records made by photocopy or similar process will be charged to you at the rate of $0.15 per page. Where records are not susceptible to photocopying (e.g., punch cards, magnetic tapes, or oversize materials), you will be charged actual cost as determined on a case-by-case basis. Copying fees will not be charged if the cost of collecting a fee would be equal to or greater than the fee itself. Copying fees for contemporaneous requests by the same individual shall be aggregated to determine the total fee.
(c) Special and additional services provided at your request, such as certification or authentication, postal insurance, and special mailing arrangement costs, will be charged to you at the rates set forth in § 404.7(e) of this chapter.
(d) You may request that a copying fee not be charged or, alternatively, be reduced, by submitting a written petition to ABMC’s General Counsel (see § 407.3) asserting that you are indigent. If the General Counsel determines, based on the petition, that you are indigent and that ABMC’s resources permit a waiver of all or part of the fee, the General Counsel may, in his or her discretion, waive or reduce the copying fee.
(e) All fees shall be paid before any copying request is undertaken. Payments shall be made by check or money order payable to “American Battle Monuments Commission.”
§ 407.9 Procedures for maintaining accounts of disclosures made by ABMC from its systems of records.
(a) The Office of the General Counsel shall maintain a log containing the date, nature, and purpose of each disclosure of a record to any person or to another agency. Such accounting also shall contain the name and address of the person or agency to whom each disclosure was made. This log need not include disclosures made to ABMC employees in the course of their official duties, or pursuant to the provisions of the Freedom of Information Act (5 U.S.C. 552).
(b) ABMC will retain the accounting of each disclosure for at least five years after the disclosure for which the accounting is made or for the life of the record that was disclosed, whichever is longer.
(c) ABMC will make the accounting of disclosures of a record pertaining to you available to you at your request. Such a request should be made in accordance with the procedures set forth in § 407.4. This paragraph (c) does not apply to disclosures made for law enforcement purposes under 5 U.S.C. 552a(b)(7).
PARTS 408-499 [RESERVED]
CHAPTER V—SMITHSONIAN INSTITUTION
PARTS 500-503 [RESERVED]
PART 504—RULES AND REGULATIONS GOVERNING SMITHSONIAN INSTITUTION BUILDINGS AND GROUNDS
§ 504.1 General.
These rules and regulations apply to all buildings and grounds of the Smithsonian Institution, as defined in section 3, 78 Stat. 366; 40 U.S.C. 193v(1) (A) and (C), and to all persons entering in or on such buildings and grounds, hereinafter referred to as the premises
§ 504.2 Recording presence.
Except as otherwise ordered, Smithsonian buildings shall be closed to the public after normal visiting hours. Such buildings, or portions thereof, shall also be closed to the public in emergency situations and at such other times as may be necessary for the orderly conduct of business. Whenever the buildings are closed to the public for any reason, visitors will immediately leave the premises upon being requested by a guard or other authorized individuals. Admission to such premises during periods when closed to the public will be limited to authorized individuals who will be required to register and identify themselves when requested by guards or other authorized individuals.
§ 504.3 Preservation of property.
It is unlawful willfully to destroy, damage, or remove property or any part thereof. Any parcels, portfolios, bags, or containers of any kind may be required to be opened and the contents identified prior to removal from the premises. In order to remove any property from the premises, a properly completed property pass signed by an authorized official of the Smithsonian Institution may be required prior to removal.
§ 504.4 Conformity with signs and emergency directions.
Persons in or on the premises shall comply with official signs of a prohibitory or directory nature and with the directions of authorized individuals.
§ 504.5 Nuisances.
The use of loud, abusive, or otherwise improper language; unwarranted loitering, sleeping or assembly; the creation of any hazard to persons or things; improper disposal of rubbish; spitting, prurient prying; the commission of any obscene or indecent act, or any other unseemly or disorderly conduct on the premises; throwing articles of any kind from or within a building; or climbing upon any part of a building is prohibited.
§ 504.6 Gambling.
Participating in games for money or other personal property or the operation of gambling devices, the conduct of a lottery or pool, or the selling or purchasing of numbers tickets in or on the premises is prohibited.
§ 504.7 Intoxicating beverages and narcotics.
Entering the premises or the operating of a motor vehicle thereon by a person under the influence of any intoxicating beverage or narcotic drug or the use of such drug in or on the premises is prohibited. Consumption of intoxicating beverages on the premises is prohibited unless officially authorized.
§ 504.8 Soliciting, vending, debt collection, and distribution of handbills.
The soliciting of alms and contributions, commercial soliciting and vending of all kinds, the display or distribution of commercial advertising, or the collecting of private debts, in or on the premises is prohibited. This rule does not apply to national or local drives for funds for welfare, health, and other purposes sponsored or approved by the Smithsonian Institution concessions, or personal notices posted by employees on authorized bulletin boards. Distribution of material such as pamphlets, handbills, and flyers is prohibited without prior approval of authorized individuals.
The displaying or carrying of placards, signs, banners, or flags is prohibited unless officially authorized.
§ 504.10 Dogs and other animals.
Dogs and other animals, except seeing-eye dogs, shall not be brought upon the premises for other than official purposes.
§ 504.11 Photographs for news, advertising, or commercial purposes.
No photographs for advertising or any other commercial purpose may be taken on the premises unless officially authorized.
§ 504.12 Items to be checked.
Umbrellas, canes (not needed to assist in walking), or other objects capable of inflicting damage to property or exhibits may be required to be checked in buildings where checking facilities are provided.
§ 504.13 Vehicular and pedestrian traffic.
(a) Drivers of all vehicles in or on the premises shall drive in a careful and safe manner at all times and shall comply with the signals and directions of the guards and all posted traffic signs.
(b) The blocking of entrances, driveways, walks, loading platforms, or fire hydrants in or on property is prohibited. Parking without authority, or parking in unauthorized locations or in locations reserved for other persons or contrary to the direction of posted signs, is prohibited. This paragraph may be supplemented from time to time by the issuance and posting of such additional traffic and parking directives as may be required, and such directives shall have the same force and effect as if made a part thereof.
§ 504.14 Weapons and explosives.
No person while on the premises shall carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, except for official purposes.
§ 504.15 Nondiscrimination.
There shall be no discrimination by segregation or otherwise against any person or persons because of race, religion, color, or national origin in furnishing or by refusing to furnish to such person or persons the use of any facility of a public nature, including all services, privileges, accommodations, and activities provided thereby on the premises.
§ 504.16 Penalties.
Section 6 of the Smithsonian Institution Special Policing Statute, Act of October 24, 1951, 65 Stat. 635, 40 U.S.C. 193(s) states that:
Whoever violates any provision of sections 193o-193q of this Title, or any regulation prescribed under section 193r of this Title, shall be fined not more than $100 or imprisoned not more than sixty days, or both, prosecution for such offenses to be had in the District of Columbia Court of General Sessions, upon information by the U.S. attorney or any of his assistants: Provided, That in any case where, in the commission of such offense, property is damaged in an amount exceeding $100, the amount of the fine for the offense may be not more than $5,000, the period of imprisonment for the offense may be not more than 5 years and prosecution shall be had in the U.S. District Court for the District of Columbia by indictment, or if the defendant, after he has been advised of the nature of the charge and of his rights, waives in open court prosecution by indictment, by information by the U.S. attorney or any of his assistants.
PART 520—RULES AND REGULATIONS GOVERNING THE BUILDINGS AND GROUNDS OF THE NATIONAL ZOOLOGICAL PARK OF THE SMITHSONIAN INSTITUTION
§ 520.1 General.
The rules and regulations in this part apply to all buildings and grounds of the National Zoological Park of the Smithsonian Institution, as defined in sec. 3, 78 Stat. 366; 40 U.S.C. 193v(1)(B), and to all persons entering in or on such buildings and grounds, hereinafter referred to as the premises.
§ 520.2 Recording presence.
Except as otherwise ordered, National Zoological Park buildings and grounds shall be closed to the public after posted visiting hours. Such buildings and grounds, or portions thereof, shall be also closed to the public in emergency situations and at such other times as may be necessary for the orderly conduct of business. Whenever the buildings and grounds or portions thereof are closed to the public for any reason, visitors will immediately leave the premises upon being requested by a police officer or other authorized individual. Admission to such premises during periods when closed to the public will be limited to authorized individuals who will be required to register and identify themselves when requested by police officers or other authorized individuals.
§ 520.3 Preservation of property.
It is unlawful willfully to destroy, damage, or remove property or any part thereof. Any parcels, portfolios, bags, or containers of any kind may be required to be opened and the contents identified prior to removal from the premises. In order to remove any property from the premises, a properly completed property pass signed by an authorized official of the National Zoological Park may be required prior to removal.
§ 520.4 Protection of zoo animals.
Except for official purposes, no person shall:
(a) Kill, injure, or disturb any exhibit or research animal by any means except to secure personal safety;
(b) Pet, attempt to pet, handle, move, or remove exhibit or research animals;
(c) Feed exhibit or research animals, except in strict accordance with authorized signs;
(d) Catch, attempt to catch, trap, remove, or kill any free roaming animals inhabiting the premises;
(e) Go over, under, between, or otherwise cross any guardrail, fence, moat, wall, or any other safety barrier; or to seat, stand, or hold children over any of the above-mentioned barriers;
(f) Throw or toss rocks, or any other missiles into, from, or while on premises;
(g) Bring strollers, baby carriages, or other conveyances, except wheel chairs, into exhibit buildings and public restrooms;
(h) Engage in ball games, or any athletic activity, except in places as may be officially designated for such purposes;
(i) Smoke or carry lighted cigarettes, cigars, or pipes into exhibit buildings, or to have a fire of any kind on the premises; or
(j) Damage, deface, pick, or remove any herb, shrub, bush, tree, or turf, or portion thereof, on the premises.
§ 520.5 Conformity with signs and emergency directions.
Persons in or on the premises shall comply with official signs of a prohibitory or directory nature and with the directions of authorized individuals.
§ 520.6 Nuisances.
The use of loud, abusive, or otherwise improper language; unwarranted loitering, sleeping or assembly; the creation of any hazard to persons or things; improper disposal of rubbish; spitting; prurient prying; the commission of any obscene or indecent act, or any other unseemly or disorderly conduct on the premises; throwing articles of any kind on the premises, or climbing upon any part of the building is prohibited.
§ 520.7 Gambling.
Participating in games for money or other personal property or the operation of gambling devices, the conduct of a lottery or pool, or the selling or purchasing of numbers tickets in or on the premises is prohibited.
§ 520.8 Intoxicating beverages and narcotics.
Entering the premises or the operating of a motor vehicle thereon by a person under the influence of any intoxicating beverage or narcotic drug or the use of such drug in or on the premises is prohibited. Consumption of intoxicating beverages on the premises is prohibited, unless officially authorized.
§ 520.9 Soliciting, vending, debt collection, and distribution of handbills.
The soliciting of alms and contributions, commercial soliciting and vending of all kinds, the display or distribution of commercial advertising or the collecting of private debts, in or on the premises is prohibited. This rule does not apply to national or local drives for funds for welfare, health, and other purposes sponsored or approved by the National Zoological Park, concessions, or personal notices posted by employees on authorized bulletin boards. Distribution of material such as pamphlets, handbills, and flyers is prohibited without prior approval of authorized individuals.
The displaying or carrying of placards, signs, banners, or flags is prohibited unless officially authorized.
§ 520.11 Dogs and other animals.
Dogs and other animals, except seeing-eye dogs, shall not be brought upon the premises for other than official purposes unless confined to automobiles.
§ 520.12 Photographs for news, advertising, or commercial purposes.
No photographs for advertising or any other commercial purpose may be taken on the premises unless officially authorized.
§ 520.13 Items to be checked.
Umbrellas, canes (not needed to assist in walking), or other objects capable of inflicting damage to property or exhibits may be required to be checked at the police station where checking facilities are provided.
§ 520.14 Vehicular and pedestrian traffic.
(a) Drivers of all vehicles in or on the premises shall drive in a careful and safe manner at all times and shall comply with the signals and directions of the police and all posted traffic signs.
(b) The blocking of entrances, driveways, walks, loading platforms, or fire hydrants in or on property is prohibited. Parking without authority, or parking in unauthorized locations or in locations reserved for other persons or contrary to the direction of posted signs, is prohibited. This paragraph may be supplemented from time to time by the issuance and posting of such additional traffic and parking directives as may be required, and such directives shall have the same force and effect as if made a part thereof.
§ 520.15 Weapons and explosives.
No person while on the premises shall carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, except for official purposes, nor shall any person discharge or set off any firework or explosive of any nature on the premises.
§ 520.16 Nondiscrimination.
There shall be no discrimination by segregation or otherwise against any person or persons because of race, religion, color, or national origin in furnishing or by refusing to furnish to such person or persons the use of any facility of a public nature, including all services, privileges, accommodations, and activities provided thereby on the premises.
§ 520.17 Lost and found.
(a) Lost articles or money which are found in areas covered by this part shall be immediately referred to the police station. Proper records shall be kept at Police Headquarters of the receipt and disposition of such articles. If an article or money found on park areas and referred to Zoo Police Headquarters is not claimed by the owner within a period of 60 days, it shall be returned to the finder and appropriate receipt obtained; except that in the case of National Zoological Park employees, articles or money turned in which are not claimed by the owner within 60 days shall be considered as abandoned to the Smithsonian Institution. Such articles or money shall be transferred to the Treasurer of the Smithsonian Institution, who shall make suitable disposition of articles and remit all proceeds of such disposition and all unclaimed money into the unrestricted funds of the Smithsonian Institution.
(b) The abandonment of any personal property in any of the park areas is prohibited.
§ 520.18 Penalties.
Section 6 of the Smithsonian Institution Special Policing Statute, Act of October 24, 1951, 65 Stat. 635, 40 U.S.C. 193 (s) states that:
Whoever violates any provision of sections 193o-193q of this title, or any regulation prescribed under section 193r of this Title, shall be fined not more than $100 or imprisoned not more than 60 days, or both, prosecution for such offenses to be had in the District of Columbia Court of General Sessions, upon information by the United States attorney or any of his assistants: Provided, That in any case where, in the commission of such offense, property is damaged in an amount exceeding $100, the amount of the fine for the offense may be not more than $5,000, the period of imprisonment for the offense may be not more than 5 years and prosecution shall be had in the U.S. District Court for the District of Columbia by indictment, or if the defendant, after he has been advised of the nature of the charge and of his rights, waives in open court prosecution by indictment, by information by the U.S. attorney or any of his assistants.
PART 530—CLAIMS AGAINST THE SMITHSONIAN INSTITUTION INCLUDING THE NATIONAL GALLERY OF ART, THE JOHN F. KENNEDY CENTER FOR THE PERFORMING ARTS AND THE WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS
§ 530.1 Tort claims.
The Smithsonian Institution (which encompasses the National Gallery of Art, the John F. Kennedy Center for the Performing Arts and the Woodrow Wilson International Center for Scholars) falls within the purview of the Federal Tort Claims Act. Internal procedures for implementing the Act follow the current general guidance issued by the U.S. Department of Justice in 28 CFR part 14. Information on specific claims procedures can be obtained as follows:
(a) Smithsonian Institution: Office of the General Counsel, Smithsonian Institution, Washington, DC 20560.
(b) National Gallery of Art: Administrator, National Gallery of Art, Washington, DC 20565.
(c) John F. Kennedy Center for the Performing Arts: Director of Operations, John F. Kennedy Center for the Performing Arts, Washington, DC 20566.
(d) Woodrow Wilson International Center for Scholars: Assistant Director for Administration, Woodrow Wilson International Center for Scholars, Smithsonian Institution, Washington, DC 20560.
PARTS 531-599 [RESERVED]
CHAPTER VI [RESERVED]
CHAPTER VII—LIBRARY OF CONGRESS
PART 700 [RESERVED]
PART 701—PROCEDURES AND SERVICES
§ 701.1 Information about the Library.
(a) Information about the Library. It is the Library’s policy to furnish freely information about the Library to the media. All requests from the media, for other than generally published information and Library records, should be referred to the Public Affairs Office. For information about access to, service of, and employment with the Library of Congress, go to http://www.loc.gov.
(b) Public Affairs Office. The Public Affairs Office shall have the principal responsibility for responding to requests for information about the Library from representatives of the media; giving advice to Library officers and staff members on public-relations and public-information matters; keeping the Librarian and other officers informed of important developments in this field; and promoting the resources and activities of the Library.
(1) During regular office hours (8:30 a.m. to 5 p.m.) telephone operators shall refer requests for information, from the media only, about the Library to the Public Affairs Office. All other requests for information shall be referred to the National Reference Service or other appropriate offices of the Library.
(2) All other Library offices and staff members who receive inquiries directly from representatives of the media for information about the Library, other than generally published information, shall refer such inquiries to the Public Affairs Office.
(3) The Public Affairs Office shall respond directly to inquiries concerning the Library, calling upon other offices to supply information to it as necessary, or shall arrange for other offices or staff members, as appropriate, to supply such information directly and report back to Public Affairs after the contact has been made. Requests for Library of Congress records, however, shall be made in accordance with 36 CFR part 703.
(4) When the Public Affairs Office is closed (evenings, Saturdays, Sundays, and holidays), requests from the media for information about the Library shall be referred to the Public Affairs Officer at his/her home. In the event that person is not available, inquiries shall be referred to the Acting Public Affairs Officer, or, in turn, a designated public affairs specialist.
(c) Other Library Units and Staff Members. All Other Library Units and Staff Members shall be responsible for keeping the Public Affairs Office fully and promptly informed of contacts with the press, except in those instances of routine reference inquiries; supplying the Public Affairs Office with any data it requires in order to respond to inquiries from representatives of the media; and reporting promptly to the Public Affairs Office substantive contacts with media representatives about the Library and its policies or activities.
§ 701.2 Acquisition of Library material by non-purchase means.
(a) Gifts. It is the policy of the Library of Congress to foster the enrichment of its collections through gifts of materials within the terms of the Library’s acquisitions policies. In implementing this policy, division chiefs and other authorized officers of the Library may undertake, as representatives of the Library, preliminary negotiations for gifts to the Library. However, responsibility for formal acceptance of gifts of material and for approval of conditions of such gifts rests with The Librarian of Congress or his designee. The Chief, African/Asian Acquisitions and Overseas Operations Division, Chief, Anglo-American Acquisitions Division, and Chief, European and Latin American Acquisitions Division are responsible for routine gifts in the geographic areas covered by their divisions.
(b) Deposits. (1) The Anglo-American Acquisitions Division is the only division in the Library authorized to make technical arrangements, formally negotiate for the transportation of materials and conditions of use at the Library, and prepare written Agreements of Deposit to formalize these negotiations. The term “deposit” is used to mean materials which are placed in the custody of the Library for general use on its premises, but which remain the property of their owners during the time of deposit and until such time as title in them may pass to the Library of Congress. A deposit becomes the permanent property of the Library when title to it is conveyed by gift or bequest. A deposit may be withdrawn by the owner rather than conveyed to the Library. A deposit shall be accompanied by a signed Agreement of Deposit.
(2) It is the policy of the Library of Congress to accept certain individual items or special collections as deposits when: permanent acquisition of such materials cannot be effected immediately; the depositors give reasonable assurance of their intention to donate the materials deposited to the United States of America for the benefit of the Library of Congress; the Library of Congress determines that such ultimate transfer of title will enrich its collections; and the depositors agree that the materials so deposited may be available for unrestricted use or use in the Library under reasonable restrictions.
(c) Conditional Gifts of Material to the Library. In cases where donors wish to attach conditions of use, negotiating officers cannot commit the Library to acceptance of such conditions. The Librarian of Congress or designee will consult the appropriate division and service unit officers and the General Counsel to ascertain whether the conditions are generally acceptable.
§ 701.3 Methods of disposition of surplus and/or duplicate materials.
(a) Exchange. All libraries may make selections on an exchange basis from the materials available in the “Exchange/Transfer” category. The policy governing these selections is that exchange be made only when materials of approximately equal value are expected to be furnished in return within a reasonable period. Dealers also may negotiate exchanges of this type for items selected from available exchange materials, but surplus copyright deposit copies of works published after 1977 shall not knowingly be exchanged with dealers. Offers of exchange submitted by libraries shall be submitted to the Chief of the African/Asian Acquisitions and Overseas Operations Division, Anglo-American Acquisitions Division, or European/Latin American Acquisitions Division, or their designees, as appropriate, who shall establish the value of the material concerned. Offers from dealers shall be referred to the Chief of the Anglo-American Acquisitions Division. Exchange offers involving materials valued at $1,000 or more must be approved by the Acquisitions Division Chief; offers of $10,000 or more must be approved by the Director for Acquisitions and Support Services; and offers of $50,000 or more must be approved by the Associate Librarian for Library Services. The Library also explicitly reserves the right to suspend, for any period of time it deems appropriate, the selection privileges of any book dealer who fails to comply fully with any rules prescribed for the disposal of library materials under this section or any other pertinent regulations or statutes.
(b) Transfer of materials to Government Agencies. Library materials no longer needed by the Library of Congress, including the exchange use mentioned above, shall be available for transfer to Federal agency libraries or to the District of Columbia Public Library, upon the request of appropriate officers of such entities, and may be selected from both the “Exchange/Transfer” and “Donation” categories. Existing arrangements for the transfer of materials, such as the automatic transfer of certain classes of books, etc., to specified Government libraries, shall be continued unless modified by the Library.
(c) Donations of Library materials to educational institutions, public bodies, and nonprofit tax-exempt organizations in the United States. It is the Library’s policy, in keeping with the Federal Property and Administrative Services Act of 1949, 40 U.S.C. 471 et seq., which does not cover the Library of Congress, to use materials no longer needed for any of the purposes mentioned above to strengthen the educational resources of the Nation by enriching the book collections of educational institutions (full-time, tax-supported or nonprofit schools, school systems, colleges, universities, museums, and public libraries), public bodies (agencies of local, State, or Federal Government), and nonprofit tax-exempt organizations (section 501 of the Internal Revenue Code of 1954, 26 U.S.C. 501, by authorizing the Anglo-American Acquisitions Division to donate to such groups in the United States any materials selected by their representatives. Eligibility to participate in the donation program shall be limited as defined by procedures established by the Anglo-American Acquisitions Division.
(d) Disposition of residue. Library materials not needed for the collections of the Library, for its exchange and transfer programs, for sale, or for donation, and which, in the opinion of the Chief, Anglo-American Acquisitions Division, have no commercial value, may be turned over to the General Services Administration (GSA) to be disposed of in accordance with standard Government practice.
§ 701.4 Contracting Officers.
While the Librarian of Congress may sign any agreement, certain other offices of the Library have been delegated authority to contract for materials and services on behalf of the Library of Congress. Contact the Office of the General Counsel of the Library at 202-707-6316 for information on specific delegations.
(a) Purpose. The purpose of this part is three-fold:
(1) To assure that the Library of Congress is properly and appropriately identified and credited as a source of materials in publications.
(2) To assure that the name or logo of the Library of Congress, or any unit thereof, is used only with the prior approval of the Librarian of Congress or his designee; and
(3) To assure that the seal of the Library of Congress is used only on official documents or publications of the Library.
(b) Definitions. (1) For the purposes of this part, publication means any tangible expression of words or thoughts in any form or format, including print, sound recording, television, optical disc, software, online delivery, or other technology now known or hereinafter created. It includes the whole range of tangible products from simple signs, posters, pamphlets, and brochures to books, television productions, and movies.
(2) Internal Library publication means a publication over which any unit of the Library has complete or substantial control or responsibility.
(3) Cooperative publications are those in which the Library is a partner with the publisher by terms of a cooperative publishing agreement.
(4) Commercial publications are those known or likely to involve subsequent mass distribution, whether by a for-profit or not-for-profit organization or individual, which involve a cooperative agreement. A commercial publication can also include a significant number of LC references and is also approved by the LC office that entered into a formal agreement. Noncommercial publications are those which are produced by non-commercial entities.
(5) Internet sites are those on-line entities, both commercial and non-commercial, that have links to the Library’s site.
(6) Library logo refers to any official symbol of the Library or any entity thereof and includes any design officially approved by the Librarian of Congress for use by Library officials.
(7) Seal refers to any statutorily recognized seal.
(c) Credit and recognition policy. (1) The name “Library of Congress,” or any abbreviation or subset such as “Copyright Office” or “Congressional Research Service,” thereof, is used officially to represent the Library of Congress and its programs, projects, functions, activities, or elements thereof. The use of the Library’s name, explicitly or implicitly to endorse a product or service, or materials in any publication is prohibited, except as provided for in this part.
(2) The Library of Congress seal symbolizes the Library’s authority and standing as an official agency of the U.S. Government. As such, it shall be displayed only on official documents or publications of the Library. The seal of the Library of Congress Trust Fund Board shall be affixed to documents of that body as prescribed by the Librarian of Congress. The seal of the National Film Preservation Board shall be affixed to documents of that body as prescribed by the Librarian of Congress. Procedures governing the use of any Library of Congress logo or symbol are set out below. Any person or organization that uses the Library Seal or the Seal of the Library of Congress Trust Fund Board in a manner other than as authorized by the provisions of this section shall be subject to the criminal provisions of 18 U.S.C. 1017.
(3) Questions regarding the appropriateness of the use of any Library logos or symbols, or the use of the Library’s name, shall be referred to the Public Affairs Officer.
(4) Cooperative Ventures. (i) Individual, commercial enterprises or non-commercial entities with whom the Library has a cooperative agreement to engage in cooperative efforts shall be instructed regarding Library policy on credit, recognition, and endorsement by the officer or manager with whom they are dealing.
(ii) Ordinarily, the Library logo should appear in an appropriate and suitable location on all cooperative publications. The Library requires that a credit line accompany reproductions of images from its collections and reflect the nature of the relationship such as “published in association with * * *.”
(iii) The size, location, and other attributes of the logo and credit line should be positioned in such a way that they do not imply Library endorsement of the publication unless such endorsement is expressly intended by the Library, as would be the case in cooperative activities. Use of the Library name or logo in any context suggesting an explicit or implicit endorsement may be approved in only those instances where the Library has sufficient control over the publication to make changes necessary to reflect Library expertise.
(iv) Library officers working on cooperative projects shall notify all collaborators of Library policy in writing if the collaboration is arranged through an exchange of correspondence. All uses of the Library of Congress’s name, seal or logo on promotional materials must be approved by the Public Affairs Officer, in consultation with the Office of the General Counsel, in advance. A statement of Library policy shall be incorporated into the agreement if the terms of the collaboration are embodied in any written instrument, such as a contract or letter of understanding. The statement could read as follows:
Name of partner recognizes the great value, prestige and goodwill associated with the name, “Library of Congress” and any logo pertaining thereto. Name of partner agrees not to knowingly harm, misuse, or bring into disrepute the name or logo of the Library of Congress, and further to assist the Library, as it may reasonably request, in preserving all rights, integrity and dignity associated with its name. Subject to the Library’s prior written approval over all aspects of the use and presentation of the Library’s name and logo, the Name of Partner may use the name of the Library of Congress in connection with publication, distribution, packaging, advertising, publicity and promotion of the ____________, produced as a result of this Agreement. The Library will have fifteen (15) business days from receipt of Name of partner’s written request to approve or deny with comment such requests for use of its name or logo.
(d) Noncommercial Users. Library officers assisting individuals who are noncommercial users of Library resources shall encourage them to extend the customary professional courtesy of acknowledging their sources in publications, including films, television, and radio, and to use approved credit lines.
(1) Each product acquired for resale by the Library that involves new labeling or packaging shall bear a Library logo and shall contain information describing the relevance of the item to the Library or its collections. Items not involving new packaging shall be accompanied by a printed description of the Library and its mission, with Library logo, as well as the rationale for operating a gift shop program in a statement such as, “Proceeds from gift shop sales are used to support the Library collections and to further the Library’s educational mission.”
(2) Electronic Users. Links to other sites from the Library of Congress’s site should adhere to the Appropriate Use Policy for External Linking in the Internet Policies and Procedures Handbook. Requests for such linkage must be submitted to the Public Affairs Office for review and approval.
(3) Office Systems Services shall make available copies of the Library seal or logo in a variety of sizes and formats, including digital versions, if use has been approved by the Public Affairs Officer, in consultation with the Office of General Counsel.
(4) Each service unit head shall be responsible for devising the most appropriate way to carry out and enforce this policy in consultation with the General Counsel and the Public Affairs Officer.
(e) Prohibitions and Enforcement. (1) All violations, or suspected violations, of this part, shall be reported to the Office of the General Counsel as soon as they become known. Whoever, except as permitted by laws of the U.S., or with the written permission of the Librarian of Congress or his designee, falsely advertises or otherwise represents by any device whatsoever that his or its business, product, or service has been in any way endorsed, authorized, or approved by the Library of Congress shall be subject to criminal penalties pursuant to law.
(2) Whenever the General Counsel has determined that any person or organization is engaged in or about to engage in an act or practice that constitutes or will constitute conduct prohibited by this part or a violation of any requirement of this part, the General Counsel shall take whatever steps are necessary, including seeking the assistance of the U.S. Department of Justice, to enforce the provisions of the applicable statutes and to seek all means of redress authorized by law, including both civil and criminal penalties.
§ 701.6 Loans of library materials for blind and other print-disabled persons.
(a) Program. Under the Act of March 3, 1931 (46 Stat. 1487), as amended (2 U.S.C. 135a), the Library of Congress’s National Library Service for the Blind and Print Disabled (NLS) provides accessible reading material for the use of blind and other print-disabled residents of the United States, including the several States, Insular Possessions, and the District of Columbia, and United States citizens domiciled abroad. NLS loans literary works and specialized music materials in raised characters (braille), on sound reproduction recordings, or in any other accessible format. NLS also loans devices necessary to reproduce accessible formats, including sound reproducers and refreshable braille displays, and makes audio and braille reading material available for electronic download.
(b) Eligibility. (1) Individuals who meet the definition of “eligible person” in 17 U.S.C. 121 are eligible for NLS’s loan services. An “eligible person” thus means an individual who, regardless of any other disability—
(i) Is blind;
(ii) Has a visual impairment or perceptual or reading disability that cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or
(iii) Is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading.
(2) Eligibility must be certified by one of the following: doctor of medicine, doctor of osteopathy, ophthalmologist, optometrist, psychologist, registered nurse, therapist, and professional staff of hospitals, institutions, and public or welfare agencies (such as an educator, a social worker, case worker, counselor, rehabilitation teacher, certified reading specialist, school psychologist, superintendent, or librarian).
(c) Application. Individuals seeking to receive service from NLS shall submit a fully and properly completed application form, available on NLS’s website and from network libraries. Eligible persons whose applications for NLS service are approved are referred to in this section as “NLS patrons.”
(d) Lending preference. In the lending of items under paragraph (a) of this section, the Librarian shall at all times give preference to:
(1) The needs of the blind and visually disabled; and
(2) The needs of eligible persons who have been honorably discharged from the Armed Forces of the United States.
(e) Loans to institutions. NLS’s accessible reading materials and devices may be loaned to institutions such as nursing homes and hospitals; to schools for the blind and print-disabled; and to public or private schools. However, these materials and devices may only be used by eligible persons.
(f) Loans through network libraries. Libraries designated by the Librarian of Congress serve as state, local or regional centers for the direct loan of accessible reading materials and the loan and repair of devices to NLS patrons in specific geographic areas. These network libraries also publicize the program to NLS patrons and prospective patrons and process applications for service.
(g) Loans of musical materials. NLS maintains a special collection of accessible musical scores, instructional texts, and other specialized materials for patrons in furthering their educational, vocational, and cultural opportunities in the field of music. These materials are not housed in network libraries but are loaned directly by NLS to patrons.
(h) International service. The Librarian of Congress is authorized by Public Law 116-94, Title XIV, the Library of Congress Technical Corrections Act of 2019, to provide literary works published in raised characters, on sound-reproduction recordings, or in any other accessible format, and musical scores, instructional texts, and other specialized materials used in furthering educational, vocational, and cultural opportunities in the field of music published in any accessible format, to authorized entities located in a country that is a party to the Marrakesh Treaty, if any such items are delivered to authorized entities through online, not physical, means. This authorization is codified at 2 U.S.C. 135a. In implementing this authority, the Librarian shall comply with section 121A of title 17, United States Code, and shall contractually require that the recipient authorized entity likewise administer all materials received from NLS in compliance with section 121A of title 17.
(i) Contact information. For more information, contact the Director, National Library Service for the Blind and Print Disabled, Library of Congress, Washington, DC 20542, or visit the NLS website at http://www.loc.gov/nls.
§ 701.7 Certain terms in license agreements.
(a) Definitions. (1) Computer software has the meaning provided in 48 CFR 2.101.
(2) License agreement means any license agreement, subscription agreement, end user license agreement (EULA), terms of service (TOS), or similar legal instrument or agreement.
(b) Purpose. The purpose of this part is to accommodate the Library of Congress’ legal status as a Federal agency of the United States and assure that the Library of Congress, when entering into license agreements, follows applicable Federal laws and regulations, including those related to fiscal law constraints, governing law, venue, and legal representation; to preserve the Library’s rights under U.S., foreign, and international copyright law; and to preserve the Library’s ability to make use of computer software and other materials it licenses.
(c) Applicability. (1) The clauses set forth in paragraph (d) of this section are deemed to be inserted into each license agreement to which the Library of Congress is a party with the same force and effect as if set forth therein, notwithstanding any provision thereof to the contrary. In addition, the clauses in paragraph (e) of this section are deemed to be inserted into each license agreement to which the Library of Congress is a party, other than license agreements for the license of computer software to the Library of Congress, with the same force and effect as if set forth therein, notwithstanding any provision thereof to the contrary. If any term of a license agreement (at the time the license agreement is executed or as it may be amended in the future) conflicts with or imposes any additional obligations on the Library of Congress with respect to a matter addressed by any of the clauses that are deemed to have been inserted into the license agreement as described above, the following shall apply:
(i) Such term is unenforceable against the Library of Congress unless otherwise expressly authorized by Federal law and specifically authorized under applicable Library of Congress regulations and procedures;
(ii) Neither the Library of Congress nor its employees shall be deemed to have agreed to such term by virtue of the term appearing in any license agreement;
(iii) Such term is stricken from the license agreement; and
(iv) The terms of the clauses of this section incorporated in the license agreement shall control.
(2) The Library of Congress is not bound by a license agreement unless it is entered into on behalf of the Library of Congress by a person having the authority to contract referred to in § 701.4.
(3) The Library of Congress is bound only by terms that are in writing and included in license agreements (including hard copy and electronic license agreements) entered into on behalf of the Library of Congress by a person having the authority to contract referred to in § 701.4.
(4) If any provisions are invoked through an “I agree” click box or other comparable mechanism (e.g., “click-wrap” or “browse-wrap” agreements), such provisions do not bind the Library of Congress or any Library of Congress authorized end user to such provisions, unless agreed to on behalf of the Library of Congress by a person having the authority to contract referred to in § 701.4.
(d) Provisions applicable to all license agreements. The following clauses are deemed to be inserted into each license agreement to which the Library of Congress is a party:
The Library of Congress shall not be bound by any provision that may or will cause the Library of Congress or its employees to make or authorize an expenditure from, or create or authorize an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund, that would create an Anti-Deficiency Act (31 U.S.C. 1341) violation. Such provisions include, for example, automatic renewal of the agreement, penalty payments by the Library of Congress, indemnification by the Library of Congress, and payment by the Library of Congress of taxes or surcharges not specifically included in the price for the license.
The liability of the Library of Congress and its obligations resulting from any breach of this agreement, or any claim arising from this agreement, shall be determined exclusively under 28 U.S.C. 1346, 28 U.S.C. 1491, or other governing Federal authority.
The conduct of, and representation of the Library of Congress in, any litigation in which the Library of Congress is a party, or is interested, are reserved exclusively to the United States Department of Justice as provided for in 28 U.S.C. 516.
This agreement shall be governed for all purposes by and construed in accordance with the Federal laws of the United States of America.
Venue for any claim under this agreement shall lie exclusively in the Federal courts of the United States, as provided in 28 U.S.C. 1346 and 28 U.S.C. 1491. Any action commenced in a State court that is against or directed to the Library of Congress may be removed by the United States Government to Federal district court in accordance with 28 U.S.C. 1442.
The Library of Congress does not agree to submit to any form of binding alternative dispute resolution, including, without limitation, arbitration.
Notwithstanding any provision of this agreement (including any addendum, schedule, appendix, exhibit, or other attachment to or order issued under this agreement), in the event of any conflict between the provisions of this agreement and the provisions of the clauses incorporated into this agreement pursuant to 36 CFR 701.7, the provisions of the clauses incorporated pursuant to 36 CFR 701.7 shall control.
As used in this clause, “commercial computer software” has the meaning provided in 48 CFR 2.101.
The provisions of the clause regarding the license of commercial computer software set forth in 48 CFR 52.227-19 are incorporated into this agreement with the same force and effect as if set forth herein, with all necessary changes deemed to have been made, such as replacing references to the Government with references to the Library of Congress.
(e) Additional provisions applicable to license agreements other than for license of computer software. In addition to the clauses deemed to be incorporated into license agreements pursuant to paragraph (d) of this section, the following clauses are deemed to be inserted into each license agreement to which the Library of Congress is a party, other than for the license of computer software to the Library of Congress:
The Library of Congress shall not be liable for any unauthorized uses of materials licensed by the Library of Congress under this agreement by Library of Congress patrons or by unauthorized users of such materials, and any such unauthorized use shall not be deemed a material breach of this agreement.
The Library of Congress does not agree to any limitations on its rights (e.g., fair use, reproduction, interlibrary loan, and archiving) under the copyright laws of the United States (17 U.S.C. 101 et seq.), and related intellectual property rights under foreign law, international law, treaties, conventions, and other international agreements.
PART 702—CONDUCT ON LIBRARY PREMISES
§ 702.1 Applicability.
The rules and regulations in this part apply to all Federal property under the charge and control of the Librarian of Congress and to all persons entering in or on such property.
§ 702.2 Conduct on Library premises.
(a) All persons using the premises shall conduct themselves in such manner as not to affect detrimentally the peace, tranquility, and good order of the Library. Such persons shall:
(1) Use areas that are open to them only at the times those areas are open to them and only for the purposes for which those areas are intended;
(2) Comply with any lawful order of the police or of other authorized individuals; and
(3) Comply with official signs of a restrictive or directory nature.
(b) All persons using the premises shall refrain from:
(1) Creating any hazard to oneself or another person or property, such as by tampering with fire detection and/or security equipment and devices, by fighting, by starting fires, or by throwing or deliberately dropping any breakable article, such as glass, pottery, or any sharp article, or stones or other missiles;
(2) Using Library facilities for living accommodation purposes, such as unauthorized bathing, sleeping, or storage of personal belongings, regardless of the specific intent of the individual;
(3) Engaging in inordinately loud or noisy activities;
(4) Disposing of rubbish other than in receptacles provided for that purpose;
(5) Throwing articles of any kind from or at a Library building or appurtenance;
(6) Committing any obscene or indecent act such as prurient prying, indecent exposure, and soliciting for illegal purposes;
(7) Removing, defacing, damaging, or in any other way so misusing a statue, seat, wall, fountain, or other architectural feature or any tree, shrub, plant, or turf;
(8) Stepping upon or climbing upon any statue, fountain, or other ornamental architectural feature or any tree, shrub, or plant;
(9) Bathing, wading, or swimming in any fountain;
(10) Painting, marking or writing on, or posting or otherwise affixing any handbill or sign upon any part of a Library building or appurtenance, except on bulletin boards installed for that purpose and with the appropriate authorization;
(11) Bringing any animal onto Library buildings and turf other than dogs trained to assist hearing or visually impaired persons;
(12) Threatening the physical well-being of an individual; and
(13) Unreasonably obstructing reading rooms, food service facilities, entrances, foyers, lobbies, corridors, offices, elevators, stairways, or parking lots in such manner as to impede or disrupt the performance of official duties by the Library staff or to prevent Library patrons from using or viewing the collections.
(c) Public reading rooms, research facilities, and catalog rooms are designated as nonpublic forums. As such, they shall be used only for quiet scholarly research or educational purposes requiring use of Library materials. All persons using these areas shall comply with the rules in effect in the various public reading rooms, shall avoid disturbing other readers, and shall refrain from engaging in disruptive behavior, including but not limited to (1) Eating, drinking, or smoking in areas where these activities are expressly prohibited;
(2) Using loud language or making disruptive noises;
(3) Using any musical instrument or device, loudspeaker, sound amplifier, or other similar machine or device for the production or reproduction of sound, except for devices to assist hearing or visually impaired persons, without authorization;
(4) Interfering by offensive personal hygiene with the use of the area by other persons;
(5) Spitting, defecating, urinating, or similar disruptive activities;
(6) Intentionally abusing the furniture or furnishings in the area;
(7) Intentionally damaging any item from the collections of the Library of Congress or any item of Library property;
(8) Using computing terminals for purposes other than searching or training persons to search the Library’s data bases or those under contract to the Library, or misusing the terminals by intentional improper or obstructive searching; and
(9) Using the Library’s photocopy machines or microfilm reader-printers for purposes other than copying Library materials, for copying that violates the copyright law (Title 17 U.S.C.), or for copying in violation of posted usage restrictions, e.g., “staff only.”
(10) Performing any other inappropriate or illegal act, such as accessing or showing child pornography, online or otherwise on Library premises; and
(11) failing to wear appropriate clothing in Library facilities, including, but not limited to, footwear (shoes or sandals) and shirts.
(12) any behavior or interaction by a member of the public that unnecessarily hinders staff from performing the Library’s public service functions.
§ 702.3 Demonstrations.
(a) Library buildings and grounds are designated as limited public forums, except for those areas designated as nonpublic forums. However, only Library grounds (defined in 2 U.S.C. 167j), not buildings, may be utilized for demonstrations, including assembling, marching, picketing, or rallying. In addition, as the need for the determination of other matters arises, the Librarian will determine what additional First Amendment activities may not be permitted in a limited public forum. In making such determination, The Librarian will consider only whether the intended activity is incompatible with the primary purpose and intended use of that area.
(b) The Director, Integrated Support Services, shall designate certain Library grounds as available for demonstrations. Persons seeking to use such designated areas for the purpose of demonstrations shall first secure written permission from the Director, Integrated Support Services. An application for such permission shall be filed with Facility Services no later than four business days before the time of the proposed demonstration and shall include:
(1) The name of the organization(s) or sponsor(s) of the demonstration;
(2) The contact person’s name and telephone number;
(3) The proposed purpose of the demonstration;
(4) The proposed location of the demonstration;
(5) The date and hour(s) planned for the demonstration;
(6) The anticipated number of demonstrators;
(7) A concise statement detailing arrangements for the prompt cleanup of the site after the demonstration;
(8) Any request for permission to use loudspeakers, microphones, or other amplifying devices, hand held or otherwise; and
(9) A signed agreement by the applicant(s) to comply with Library regulations and terms and conditions established for the demonstration.
(c) Upon receipt of an application, Facility Services shall forward the application, along with any comments and recommendations, to the Director, Integrated Support Services, within one business day of the office’s receipt of said application. The Director, Integrated Support Services, shall respond to the request within three business days of his or her receipt of said application. The Director, Integrated Support Services, shall request advice from the Office of the General Counsel on any legal questions arising from said application.
(d) Permission to demonstrate shall be based upon:
(1) The availability of the requested location;
(2) The likelihood that the demonstration will not interfere with Library operations or exceed city noise limitations as defined by District of Columbia regulations; and
(3) The likelihood that the demonstration will proceed peacefully in the event that a volatile situation in the United States or abroad might lead to a potentially harmful threat toward the Capitol complex, including Library buildings and grounds.
§ 702.4 Photographs.
(a) The policy set out herein applies to all individuals who are photographing Library of Congress buildings.
(b) Special permission is not required for photographing public areas, if no tripods, lights or other specialized equipment is used. Public areas do not include reading rooms, exhibition areas or other areas where photographing is prohibited by signage.
(c) For all other photographing, requests for permission must be made at least one week prior to the photographing. The Director of Communications, or his/her designee, is authorized to grant or deny permission, in writing, to photograph the interior of Library buildings and may set the conditions under which the photographing may take place. Such conditions may include provision for a fee for services rendered consistent with the Library’s policies and procedures for the revolving fund under 2 U.S.C. 182b.
§ 702.5 Gambling.
Participation in any illegal gambling, such as the operation of gambling devices, the conduct of an illegal pool or lottery, or the unauthorized sale or purchase of numbers or lottery tickets, on the premises is prohibited.
§ 702.6 Alcoholic beverages and controlled substances.
(a) The use of alcoholic beverages on the premises is prohibited except on official occasions for which advance written approval has been given and except for concessionaires to whom Library management has granted permission to sell alcoholic beverages on the premises.
(b) The illegal use or possession of controlled substances on the premises is prohibited.
§ 702.7 Weapons and explosives.
Except where duly authorized by law, and in the performance of law enforcement functions, no person shall carry firearms, other dangerous or deadly weapons, or explosives, either openly or concealed, while on the premises.
§ 702.8 Use and carrying of food and beverages in Library buildings.
Consumption of food and beverages in Library buildings is prohibited except at point of purchase or other authorized eating places. Under no circumstances may food or beverages be carried to the bookstacks or other areas where there exists significant risk to Library materials or property or where there may result a detraction from the dignity or efficiency of public service.
§ 702.9 Inspection of property.
(a) Individuals entering Library buildings do so with the understanding that all property in their possession including, but not limited to, suitcases, briefcases, large envelopes, packages, and office equipment may be inspected.
(b) Upon entering the Library buildings privately owned office machines including but not limited to typewriters, computing machines, stenotype machines, and dictating machines, shall be registered with the police officer at the entrance to buildings for the purpose of controlling such equipment.
(c) In the discharge of official duties, Library officials are authorized to inspect Government-owned or furnished property assigned to readers and the general public for their use, such as cabinets, lockers, and desks. Unauthorized property or contraband found in the possession of members of the Library staff, readers, or the general public as a result of such inspections will be subject to confiscation by Library officials.
§ 702.10 Protection of property.
(a) Any person who shall steal, wrongfully deface, injure, mutilate, tear, or destroy library materials, or any portion thereof, shall be punished by a fine of not more than $1,000 or imprisoned not more than 3 years, or both (18 U.S.C. 641; 18 U.S.C. 1361; 18 U.S.C. 2071).
(b) Any person who embezzles, steals, purloins, or, without authority, disposes of anything of value of the United States, or willfully injures or commits any depredation against any Government property shall be punished by a fine of not more than $10,000 or imprisoned not more than 10 years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than 1 year, or both. (18 U.S.C. 641; 18 U.S.C. 1361.)
§ 702.11 Smoking in Library buildings.
Smoking in Library areas is prohibited except in those areas specifically designated for this purpose.
§ 702.12 Space for meetings and special events.
Information about the use of space for meeting and special events at the Library can be found at http://www.loc.gov/about/facilities/index.html, or by accessing the Library’s home page at http://www.loc.gov and following the link “About the Library” to “Event Facilities.”
§ 702.13 Soliciting, vending, debt collection, and distribution of handbills.
(a) The soliciting of alms and contributions, commercial soliciting and vending of all kinds, the display or distribution of commercial advertising, the offering or exposing of any article for sale, or the collecting of private debts on the grounds or within the buildings of the Library is prohibited. This rule does not apply to national or local drives for funds for welfare, health, or other purposes sponsored or approved by The Librarian of Congress, nor does it apply to authorized concessions, vending devices in approved areas, or as specifically approved by the Librarian or designee.
(b) Distribution of material such as pamphlets, handbills, and flyers is prohibited without prior approval.
(c) Peddlers and solicitors will not be permitted to enter Library buildings unless they have a specific appointment, and they will not be permitted to canvass Library buildings.
§ 702.14 Penalties.
(a) Persons violating provisions of 2 U.S.C. 167a to 167e, inclusive, regulations promulgated pursuant to 2 U.S.C. 167f, this part 702, or other applicable Federal laws relating to the Library’s property, including its collections, are subject to removal from the premises, to arrest, and to any additional penalties prescribed by law.
(b) Upon written notification by the Director of Security, disruptive persons may be denied further access to the premises and may be prohibited from further use of the Library’s facilities.
(1) Within three workdays of receipt of such notification, an affected individual may make a written request, including the reasons for such a request, to the Director of Security for a reconsideration of said notification.
(2) The Director of Security shall respond within three workdays of receipt of such request for reconsideration and may, at his or her option, rescind, modify, or reaffirm said notification.
(c) Readers who violate established conditions and/or procedures for using material are subject to penalties to be determined by or in consultation with the unit head responsible for the custody of the material used.
(1) When a reader violates a condition and/or procedure for using material, the division chief or head of the unit where the infraction occurred may, upon written notification, deny further access to the material, or to the unit in which it is housed, to be determined by the nature of the infraction and the material involved.
(2) Within five workdays of receipt of such notification, the reader may make a written request, including the reasons for such request to the Associate Librarian for that service unit, or his/her designee, for a reconsideration of said notification.
(3) The Associate Librarian for that service unit, or his/her designee, shall respond within five workdays of receipt of such request for reconsideration and may rescind, modify, or reaffirm said notification, as appropriate.
(4) Repeated violations of established conditions and/or procedures for using material may result in denial of further access to the premises and further use of the Library’s facilities or revocation of the reader’s User Card, in accordance with established access regulations.
(5) Mutilation or theft of Library property also may result in criminal prosecution, as set forth in 18 U.S.C. 641, 1361, and 2071; and 22 D.C. Code 3106.
(6) In certain emergency situations requiring prompt action, the division chief or head of the unit where the infraction occurred may immediately deny further access to the material or unit prior to formally taking written action. In such cases, the reader shall be notified, in writing, within three days of the action taken and the reasons therefor. The reader then may request reconsideration.
(7) A copy of any written notification delivered pursuant to this part shall be forwarded to the Captain, Library Police, the service unit, and the Director, Integrated Support Services, for retention.
PART 703—DISCLOSURE OR PRODUCTION OF RECORDS OR INFORMATION
Subpart A—Availability of Library of Congress Records
§ 703.1 Purpose and scope of this subpart.
(a) This subpart implements the policy of the Library with respect to the public availability of Library of Congress records. Although the Library is not subject to the Freedom of Information Act, as amended (5 U.S.C. 552), this subpart follows the spirit of that Act consistent with the Library’s duties, functions, and responsibilities to the Congress. The application of that Act to the Library is not to be inferred, nor should this subpart be considered as conferring on any member of the public a right under that Act of access to or information from the records of the Library. Nothing in this subpart modifies current instructions and practices in the Library with respect to handling Congressional correspondence.
(b) The Copyright Office, although a service unit of the Library, is by law (17 U.S.C. 701) subject to the provisions of the Freedom of Information Act, as amended, only for purposes of actions taken under the copyright law. The Copyright Office has published its own regulation with respect to the general availability of information (see 37 CFR 201.2) and requests for copyright records made pursuant to the Freedom of Information Act (see 37 CFR 203.1 et seq.) and the Privacy Act (see 37 CFR 204.1 et seq.).
§ 703.2 Policy.
(a) Subject to limitations set out in this part, Library of Congress records shall be available as hereinafter provided and shall be furnished as promptly as possible within the Library to any member of the public at appropriate places and times and for an appropriate fee, if any.
(b) The Library shall not provide records from its files that originate in another federal agency or non-federal organization to persons who may not be entitled to obtain the records from the originator. In such instances, the Library shall refer requesters to the agency or organization that originated the records.
(c) In order to avoid disruption of work in progress, and in the interests of fairness to those who might be adversely affected by the release of information which has not been fully reviewed to assure its accuracy and completeness, it is the policy of the Library not to provide records which are part of on-going reviews or other current projects. In response to such requests, the Library will inform the requester of the estimated completion date of the review or project so that the requester may then ask for the records. At that time, the Library may release the records unless the same are exempt from disclosure as identified in § 703.5.
§ 703.3 Administration responsibilities.
The administration of this part shall be the responsibility of the Chief, Office Systems Services (OSS), Library of Congress, 101 Independence Avenue, SE., Washington, DC 20540-9440, and to that end, the Chief may promulgate such supplemental rules or guidelines as may be necessary.
§ 703.4 Definitions.
(a) Records includes all books, papers, maps, photographs, reports, and other documentary materials, exclusive of materials in the Library’s collections, regardless of physical form or characteristics, made or received and under the control of the Library in pursuance of law or in connection with the transaction of public business, and retained, or appropriate for retention, by the Library as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the government or because of the informational value of data contained therein. The term refers only to such items in being and under the control of the Library. It does not include the compiling or procuring of a record, nor does the term include objects or articles, such as furniture, paintings, sculpture, three-dimensional models, structures, vehicles, and equipment.
(b) Identifiable means a reasonably specific description of a particular record sought, such as the date of the record, subject matter, agency or person involved, etc. which will permit location or retrieval of the record.
(c) Records available to the public means records which may be examined or copied or of which copies may be obtained, in accordance with this part, by the public or representatives of the press regardless of interest and without specific justification.
(d) Disclose or disclosure means making available for examination or copying, or furnishing a copy.
(e) Person includes an individual, partnership, corporation, association, or public or private organization other than a federal agency.
§ 703.5 Records exempt from disclosure.
(a) The public disclosure of Library records provided for by this part does not apply to records, or any parts thereof, within any of the categories set out below. Unless precluded by law, the Chief, OSS, nevertheless may release records within these categories, except for Congressional correspondence and other materials identified in § 703.5(b)(1), after first consulting with the General Counsel.
(b) Records exempt from disclosure under this part are the following:
(1) Congressional correspondence and other materials relating to work performed in response to or in anticipation of Congressional requests, unless authorized for release by officials of the Congress.
(2) Materials specifically authorized under criteria established by Executive Order to be withheld from public disclosure in the interest of national defense or foreign policy and that are properly classified pursuant to Executive Orders.
(3) Records related solely to the internal personnel rules and practices of the Library. This category includes, in addition to internal matters of personnel administration, internal rules and practices which cannot be disclosed without prejudice to the effective performance of a Library function, such as guidelines and procedures used by auditors, investigators, or examiners in the Office of the Inspector General.
(4) Records specifically exempted from disclosure by statute, provided that such statute:
(i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld.
(5) Records containing trade secrets and commercial or financial information obtained from a person as privileged or confidential. This exemption may include, but is not limited to, business sales statistics, inventories, customer lists, scientific or manufacturing processes or development information.
(6) Personnel and medical files and similar files the disclosure of which could constitute a clearly unwarranted invasion of personal privacy. This exemption includes all private or personal information contained in files compiled to evaluate candidates for security clearances.
(7) Materials and information contained in investigative or other records compiled for law enforcement purposes.
(8) Materials and information contained in files prepared in connection with government litigation and adjudicative proceedings, except for those portions of such files which are available by law to persons in litigation with the Library.
(9) Records having information contained in or related to examination, operation, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.
(10) Inter-agency or intra-agency memoranda, letters or other materials that are part of the deliberative process, the premature disclosure of which would inhibit internal communications or be detrimental to a Library function (e.g., case files in the Manuscript Division).
(11) Records containing information customarily subject to protection as privileged in a court or other proceedings such as information protected by the doctor-patient, attorney work product, or attorney-client privilege.
(12) Information submitted by a person to the Library in confidence or which the Library has obligated itself not to disclose such as information received by the Office of the Inspector General through its hotline.
(13) Materials related to specific patron use of the Library’s collections, resources, or facilities either on site or off site. This exemption includes:
(i) Reader Records. Library records which identify readers by name, such as registration records, reading room logs or registers, telephone inquiry logs, and charge slips, if retained for administrative purposes.
(ii) Use Records. Users of the Library are entitled to privacy with respect to their presence and use of the Library’s facilities and resources. Records pertaining to the use of the Library and of Library collections and subjects of inquiry are confidential and are not to be disclosed either to other readers, to members of the staff who are not authorized, or to other inquirers including officials of law enforcement, intelligence, or investigative agencies, except pursuant to court order or administratively by order of the Librarian of Congress.
(c) Any reasonably segregable portion of a record shall be provided to anyone requesting such records after deletion of the portions which are exempt under this section. A portion of a record shall be considered reasonably segregable when segregation can produce an intelligible record which is not distorted out of context, does not contradict the record being withheld, and can reasonably provide all relevant information.
§ 703.6 Procedure for access to and copying of records.
(a) A request to inspect or obtain a copy of an identifiable record of the Library of Congress shall be submitted in writing to the Chief, OSS, Library of Congress, 101 Independence Avenue, SE., Washington, DC 20540-9440, who shall promptly record and process the request.
(b) Requests for records shall be specific and shall identify the precise records or materials that are desired by name, date, number, or other identifying data sufficient to allow the OSS staff to locate, retrieve, and prepare the record for inspection or copying and to delete exempted matter where appropriate to do so. Blanket or generalized requests (such as “all matters relating to” a general subject) shall not be honored and shall be returned to the requester.
(c) Records shall be available for inspection and copying in person during business hours.
(d) Records in media other than print (e.g., microforms and machine-readable media) shall be available for inspection in the medium in which they exist. Copies of records in machine-readable media shall be made in media determined by the Chief, OSS.
(e) Library staff shall respond to requests with reasonable dispatch. Use of a record by the Library or Library employees, however, shall take precedence over any request. Under no circumstances shall official records be removed from Library control without the written authorization of the Librarian.
(f) The Chief, OSS, shall make the initial determination on whether:
(1) The record described in a request can be identified and located pursuant to a reasonable search, and
(2) The record (or portions thereof) may be made available or withheld from disclosure under the provisions of this part. In making the initial determinations, the Chief shall consult with any unit in the Library having a continuing substantial interest in the record requested. Where the Chief finds no valid objection or doubt as to the propriety of making the requested record available, the Chief shall honor the request upon payment of prescribed fees, if any are required by § 703.8.
(g) If the Chief, OSS, determines that a requested record should be withheld, the Chief shall inform the requester in writing that the request has been denied; shall identify the material withheld; and shall explain the basis for the denial. The Chief shall inform the requester that further consideration of the denied request may be obtained by a letter to the General Counsel setting out the basis for the belief that the denial of the request was unwarranted.
(h) The General Counsel shall make the final determination on any request for reconsideration and shall notify the requester in writing of that determination. The decision of the General Counsel shall be the final administrative review within the Library.
(1) If the General Counsel’s decision reverses in whole or in part the initial determination by the Chief, OSS, the Chief shall make the requested record, or parts thereof, available to the requester, subject to the provisions of § 703.8.
(2) If the General Counsel’s decision sustains in whole or in part the initial determination by the Chief, OSS, the General Counsel shall explain the basis on which the record, or portions thereof, will not be made available.
§ 703.7 Public Reading Facility.
(a) The Chief, OSS, shall maintain a reading facility for the public inspection and copying of Library records. This facility shall be open to the public from 8:30 a.m. to 4:30 p.m., except Saturdays, Sundays, holidays, and such other times as the Library shall be closed to the public.
(b) The General Counsel shall advise the Chief, OSS, of the records to be available in the public reading facility following consultation with the Library managers who may be concerned.
§ 703.8 Fees and charges.
(a) The Library will charge no fees for:
(1) Access to or copies of records under the provisions of this part when the direct search and reproduction costs are less than $10.
(2) Records requested which are not found or which are determined to be exempt under the provisions of this part.
(3) Staff time spent in resolving any legal or policy questions pertaining to a request.
(4) Copies of records, including those certified as true copies, that are furnished for official use to any officer or employee of the federal government.
(5) Copies of pertinent records furnished to a party having a direct and immediate interest in a matter pending before the Library, when furnishing such copies is necessary or desirable to the performance of a Library function.
(b) When the costs for services are $10 or more, the Chief, OSS, shall assess and collect the fees and charges set out in appendix A to this part for the direct costs of search and reproduction of records available to the public.
(c) The Chief, OSS, is authorized to waive fees and charges, in whole or in part, where it is determined that the public interest is best served to do so, because waiver is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Persons seeking a waiver or reduction of fees may be required to submit a written statement setting forth the intended purpose for which the records are requested or otherwise indicate how disclosure will primarily benefit the public and, in appropriate cases, explain why the volume of records requested is necessary. Determinations made pursuant to the authority set out herein are solely within the discretion of the Chief, OSS.
(d) Fees and charges for services identified in the appendix to this part shall be paid in full by the requester before the records are delivered. Payment shall be made in U.S. funds by personal check, money order, or bank draft made payable to the Library of Congress. The Chief, OSS, shall remit all fees collected to the Director, Financial Services, who shall cause the same to be credited to appropriate accounts or deposited with the U.S. Treasury as miscellaneous receipts.
(e) The Chief, OSS, shall notify a requester and may require an advance deposit where the anticipated fees will exceed $50.
Appendix A to Subpart A of Part 703—Fees and Charges for Services Provided to Requesters of Records
(a) Searches.
(1) There is no charge for searches of less than one hour.
(2) Fees charged for searches of one hour or more are based on prevailing rates. Currently, those charges are:
(i) Personnel searches (clerical): $15 per hour.
(ii) Personnel searches (professional): $25 per hour.
(iii) Reproduction costs: $.50 per page.
(iv) Shipping and mailing fees: variable.
(3) In situations involving the use of computers to locate and extract the requested information, charges will be based on the direct cost to the Library, including labor, material, and computer time.
(b) Duplication of Records. Fees charged for the duplication of records shall be according to the prevailing rates established by the Library’s Photoduplication Service, or in the case of machine media duplication, by the Resources Management Staff, Information Technology Services.
(c) Certifications. The fee charges for certification of a record as authentic or a true copy shall be $10.00 for each certificate.
(d) Other Charges. When no specific fee has been established for a service required to meet the request for records, the Chief, OSS, shall establish an appropriate fee based on direct costs in accordance with the Office of Management and Budget Circular No. A-25.
Subpart B—Testimony by Employees and Production of Documents in Certain Legal Proceedings Where the Library Is Not a Party
§ 703.15 Purpose and scope of this subpart.
This subpart sets forth the policy and procedures of the Library of Congress regarding, first, the testimony, as witnesses in legal proceedings where the Library is not a party, of employees and former employees concerning information acquired in the course of performing official duties or because of the employee’s official relationship with the Library of Congress, and second, the production or disclosure of information contained in Library of Congress documents for use in legal proceedings where the Library is not a party, pursuant to a request, order, or subpoena (collectively referred to in this subpart as a “demand”).
(a) This subpart applies to:
(1) State court proceedings (including grand jury proceedings);
(2) Federal court proceedings; and
(3) State and local legislative and administrative proceedings.
(b) This subpart does not apply to:
(1) Matters that are not related to the Library of Congress but relate solely to an employee’s personal dealings;
(2) Congressional demands for testimony or documents;
(3) Any demand relating to activity within the scope of Title 17 of the United States Code (the Copyright Act and related laws). These are governed by Copyright Office regulations, which provide for different procedures and for service on the General Counsel of the Copyright Office. See 37 CFR 201.1, sec. 203, sec. 204, and sec. 205.
(c) The purpose of this subpart is to ensure that employees’ official time is used only for official purposes, to maintain the impartiality of the Library of Congress among private litigants, to ensure that public funds are not used for private purposes, to ensure the protection of Congress’ interests, and to establish centralized procedures for deciding whether or not to approve testimony or the production of documents.
§ 703.16 Policy on presentation of testimony and production of documents.
No Library of Congress employee may provide testimony or produce documents in any proceeding to which this part applies concerning information acquired in the course of performing official duties or because of the employee’s official relationship with the Library of Congress, unless authorized by the General Counsel or his/her designee, or the Director of the Congressional Research Service (CRS) with respect to records and testimony relating to CRS’s work for Congress, or the Law Librarian for records and testimony relating to the Law Library’s work for Congress or materials prepared for other federal agencies covered by evidentiary privileges. The aforementioned officials (hereinafter “deciding officials”) will consider and act upon demands under this part with due regard for the interests of Congress, where appropriate, statutory requirements, the Library’s interests, and the public interest, taking into account factors such as applicable privileges and immunities, including the deliberative process privilege and the speech or debate clause, the need to conserve the time of employees for conducting official business, the need to avoid spending the time and money of the United States for private purposes, the need to maintain impartiality among private litigants in cases where a substantial government interest is not involved, the established legal standards for determining whether or not justification exists for the disclosure of confidential information and records, and any other purpose that the deciding official deems to be in the interest of Congress or the Library of Congress.
§ 703.17 Procedures when testimony and/or documents are demanded.
A demand for testimony and/or documents by a Library employee must be in writing, must state the nature of the requested testimony and/or specify documents, and must meet the requirements of § 703.15. A demand must also show that the desired testimony or document is not reasonably available from any other source and must show that no document could be provided and used in lieu of testimony. When an employee of the Library receives such a request the employee will immediately forward it, with the recommendation of the employee’s supervisors, to the appropriate deciding official under § 703.22 of this part. The deciding official, in consultation with the appropriate offices of the Library or congressional offices, will determine whether or not compliance with the request would be appropriate and will respond as soon as practicable.
§ 703.18 Procedures when an employee’s appearance is demanded or documents are demanded.
(a) If the deciding official has not acted by the return date on a subpoena, the employee must appear at the stated time and place (unless advised by the deciding official that the subpoena was not validly issued or served or that the subpoena has been withdrawn) and inform the court (or other interested parties) that the demand has been or is being, as the case may be, referred for the prompt consideration of the appropriate Library or congressional officials and shall respectfully request the court (or other authority) to stay the demand pending receipt of the requested instructions.
(b) If the deciding official has denied approval to comply with the subpoena, and the court or authority rules that the demand must be complied with irrespective of such a denial, the employee upon whom such a demand has been made shall produce a copy of this Part and shall respectfully refuse to provide any testimony or produce any documents. United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
(c) The deciding official, as appropriate, will request the assistance of the Department of Justice or the U.S. Attorney’s Office or congressional officials where necessary to represent the interests of the Library, the Congress, and the employee in any of the foregoing proceedings.
§ 703.19 Requests for authenticated copies of Library documents.
Requests for authenticated copies of Library documents for purposes of admissibility under 28 U.S.C. 1733 and Rule 44 of the Federal Rules of Civil Procedure will be granted for documents that would otherwise be released pursuant to the Library’s Regulations governing the release of information. The advice of the appropriate deciding official should be obtained concerning the proper form of authentication and information as to the proper person having custody of the record.
§ 703.20 File copies.
The Office of the General Counsel will maintain the official file of copies of all demands served on the Library and deciding officials’ responses.
§ 703.21 Effect of this part.
This part is intended only to provide guidance for the internal operations of the Library of Congress and is not intended to, and does not, and may not, be relied upon to create any right or benefit, substantive or procedural, enforceable at law by a party against the Library of Congress or the United States.
§ 703.22 Where to serve demands.
Requesting parties must serve subpoenas:
(a) For Congressional Research Service matters: Director, Congressional Research Service, LM 203, Library of Congress, Washington, DC 20540.
(b) For Law Library matters: Law Librarian, LM 240, Library of Congress, Washington, DC 20540.
(c) For all other matters: General Counsel, LM 601, Library of Congress, Washington, DC 20540.
PART 704—NATIONAL FILM REGISTRY OF THE LIBRARY OF CONGRESS
§ 704.1 Films selected for inclusion in the National Film Registry.
After the reauthorization of the National Film Registry Act, only the list of films selected for the year of publication will be printed. For a complete list of films included in the National Film Registry, see http://lcweb.loc.gov/film/nfrchron.html.
PART 705—REPRODUCTION, COMPILATION, AND DISTRIBUTION OF NEWS TRANSMISSIONS UNDER THE PROVISIONS OF THE AMERICAN TELEVISION AND RADIO ARCHIVES ACT
§ 705.1 Scope and purpose of this part.
The purpose of this part is to implement certain provisions of the American Television and Radio Archives Act, 2 U.S.C. 170. Specifically, this part prescribes rules pertaining to the reproduction, compilation, and distribution by the Library of Congress, under section 170(b) of title 2 of the United States Code, of television and radio transmission programs consisting of regularly scheduled newscasts or on-the-spot coverage of news events.
§ 705.2 Authority.
Section 170(b) of Title 2 authorizes the Librarian, with respect to a transmission program which consists of a regularly scheduled newscast or on-the-spot coverage of news events, to prescribe by regulation standards and conditions to reproduce, compile, and distribute such a program as more particularly specified in the statute.
§ 705.3 Definitions.
For purposes of this part:
(a) The terms copies, fixed, phonorecords and transmission program, and their variant forms, have the meanings given to them in section 101 of title 17 of the United States Code. For the purpose of this part, the term transmission includes transmission via the Internet, cable, broadcasting, and satellite systems, and via any other existing or future devices or processes for the communication of a performance or display whereby images or sounds are received beyond the place from which they are sent. 17 U.S.C. 101; H.R. Rep. No. 94-1476, at 64 (1976).
(b) The term regularly scheduled newscasts means transmission programs in any format that report on current events, regardless of quality, subject matter, or significance, and that air on a periodic basis, (including but not limited to daily, weekly, or quarterly), or on an occasional basis, but not on a special, one-time basis. The term on-the-spot coverage of news events refers to transmission programs in any format that report on reasonably recent current events, regardless of quality, subject matter, or significance, and that are aired in a timely manner but not necessarily contemporaneously with the recording of the events.
(c) The term staff for the purpose of this part includes both Library employees and contractors.
§ 705.4 Reproduction.
(a) Library of Congress staff acting under the general authority of the Librarian of Congress may reproduce fixations of television and radio transmission programs consisting of regularly scheduled newscasts or on-the-spot coverage of news events directly from transmissions to the public in the United States in accordance with section 170(b) of title 2 of the United States Code. Recording may be accomplished in the same or another tangible form as the original transmission. The choice of programs selected for recording will be made consistent with the purpose of, and based on the criteria set forth in, the American Television and Radio Archives Act at 2 U.S.C. 170(a), and on Library of Congress acquisition policies in effect at the time of recording.
(b) Specific notice of an intent to copy a transmission program will ordinarily not be given. In general, the Library of Congress will seek to copy off-the-air selected portions of the programming transmitted by both noncommercial educational broadcast stations as defined in section 397 of title 47 of the United States Code, and by commercial broadcast stations. Upon written request addressed to the Chief, Motion Picture, Broadcasting and Recorded Sound Division by a broadcast station or other owner of the right of transmission, the Library of Congress will inform the requestor whether a particular transmission program has been copied by the Library.
§ 705.5 Disposition and use of copies and phonorecords by the Library of Congress.
(a) All copies and phonorecords acquired under this part will be maintained by the Motion Picture, Broadcasting and Recorded Sound Division of the Library of Congress. The Library may make such copies or phonorecords of a program as are necessary for purposes of preservation, security, and, as specified in § 705.7, distribution.
(b) To the extent that the Library of Congress’s use of copies and phonorecords acquired under this part is not subject to the provisions of the American Television and Radio Archives Act (section 170 of title 2 of the United States Code) and this part, such use shall be subject to the restrictions concerning copying and access found in Library of Congress Regulation 818-17, “Policies Governing the Use and Availability of Motion Pictures and Other Audiovisual Works in the Collections of the Library of Congress,” and Library of Congress Regulation 818-18.1, “Recorded Sound Listening and Duplication Services” available from the Office of the General Counsel, Library of Congress, Washington, DC 20540-1050. Such use shall also be governed by the Copyright Act of 1976, as amended.
§ 705.6 Compilation.
(a) Library of Congress staff acting under the general authority of the Librarian of Congress may compile, without abridgement or any other editing, portions of recordings created pursuant to § 705.4 according to subject matter, and may reproduce such compilations for purposes of preservation, security, or distribution as permitted under § 705.7 below.
(b) Compilations shall be organized, to the greatest extent possible, in chronological order, and shall include the entirety of any particular news segment.
(c) No compilation by the Librarian shall be deemed for any purpose or proceeding to be an official determination of the subject matter covered by such compilation.
§ 705.7 Distribution.
(a) Library staff acting under the general authority of the Librarian of Congress may distribute a reproduction of a transmission program or a compilation of transmission programs made under this part, by loan to a researcher, provided that the researcher indicates the particular segments of the news broadcasts or compilations that he or she wishes to review, on the basis of an index or other finding aid prepared by the Librarian; and for deposit in a library or archives which meets the requirements of section 108(a) of title 17 of the United States Code.
(b) Library staff will advise all recipients of such reproductions that such distribution shall be only for the purposes of research and not for further reproduction or performance, and that any use in excess of that permitted by the American Television and Radio Archives Act (section 170 of title 2 of the United States Code), title 17 of the United States Code, and this part may violate copyrights or other rights.
§ 705.8 Agreements modifying the terms of this part.
(a) The Library of Congress may, at its sole discretion, enter into an agreement whereby the provision of copies or phonorecords of transmission programs of regularly scheduled newscasts or on-the-spot coverage of news events on terms different from those contained in this part is authorized.
(b) Any such agreement may be terminated without notice by the Library of Congress.
PARTS 706-799 [RESERVED]
CHAPTER VIII—ADVISORY COUNCIL ON HISTORIC PRESERVATION
PART 800—PROTECTION OF HISTORIC PROPERTIES
Subpart A—Purposes and Participants
§ 800.1 Purposes.
(a) Purposes of the section 106 process. Section 106 of the National Historic Preservation Act requires Federal agencies to take into account the effects of their undertakings on historic properties and afford the Council a reasonable opportunity to comment on such undertakings. The procedures in this part define how Federal agencies meet these statutory responsibilities. The section 106 process seeks to accommodate historic preservation concerns with the needs of Federal undertakings through consultation among the agency official and other parties with an interest in the effects of the undertaking on historic properties, commencing at the early stages of project planning. The goal of consultation is to identify historic properties potentially affected by the undertaking, assess its effects and seek ways to avoid, minimize or mitigate any adverse effects on historic properties.
(b) Relation to other provisions of the act. Section 106 is related to other provisions of the act designed to further the national policy of historic preservation. References to those provisions are included in this part to identify circumstances where they may affect actions taken to meet section 106 requirements. Such provisions may have their own implementing regulations or guidelines and are not intended to be implemented by the procedures in this part except insofar as they relate to the section 106 process. Guidelines, policies, and procedures issued by other agencies, including the Secretary, have been cited in this part for ease of access and are not incorporated by reference.
(c) Timing. The agency official must complete the section 106 process “prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the issuance of any license.” This does not prohibit agency official from conducting or authorizing nondestructive project planning activities before completing compliance with section 106, provided that such actions do not restrict the subsequent consideration of alternatives to avoid, minimize or mitigate the undertaking’s adverse effects on historic properties. The agency official shall ensure that the section 106 process is initiated early in the undertaking’s planning, so that a broad range of alternatives may be considered during the planning process for the undertaking.
§ 800.2 Participants in the Section 106 process.
(a) Agency official. It is the statutory obligation of the Federal agency to fulfill the requirements of section 106 and to ensure that an agency official with jurisdiction over an undertaking takes legal and financial responsibility for section 106 compliance in accordance with subpart B of this part. The agency official has approval authority for the undertaking and can commit the Federal agency to take appropriate action for a specific undertaking as a result of section 106 compliance. For the purposes of subpart C of this part, the agency official has the authority to commit the Federal agency to any obligation it may assume in the implementation of a program alternative. The agency official may be a State, local, or tribal government official who has been delegated legal responsibility for compliance with section 106 in accordance with Federal law.
(1) Professional standards. Section 112(a)(1)(A) of the act requires each Federal agency responsible for the protection of historic resources, including archeological resources, to ensure that all actions taken by employees or contractors of the agency shall meet professional standards under regulations developed by the Secretary.
(2) Lead Federal agency. If more than one Federal agency is involved in an undertaking, some or all the agencies may designate a lead Federal agency, which shall identify the appropriate official to serve as the agency official who shall act on their behalf, fulfilling their collective responsibilities under section 106. Those Federal agencies that do not designate a lead Federal agency remain individually responsible for their compliance with this part.
(3) Use of contractors. Consistent with applicable conflict of interest laws, the agency official may use the services of applicants, consultants, or designees to prepare information, analyses and recommendations under this part. The agency official remains legally responsible for all required findings and determinations. If a document or study is prepared by a non-Federal party, the agency official is responsible for ensuring that its content meets applicable standards and guidelines.
(4) Consultation. The agency official shall involve the consulting parties described in paragraph (c) of this section in findings and determinations made during the section 106 process. The agency official should plan consultations appropriate to the scale of the undertaking and the scope of Federal involvement and coordinated with other requirements of other statutes, as applicable, such as the National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act, and agency-specific legislation. The Council encourages the agency official to use to the extent possible existing agency procedures and mechanisms to fulfill the consultation requirements of this part.
(b) Council. The Council issues regulations to implement section 106, provides guidance and advice on the application of the procedures in this part, and generally oversees the operation of the section 106 process. The Council also consults with and comments to agency officials on individual undertakings and programs that affect historic properties.
(1) Council entry into the section 106 process. When the Council determines that its involvement is necessary to ensure that the purposes of section 106 and the act are met, the Council may enter the section 106 process. Criteria guiding Council decisions to enter the section 106 process are found in appendix A to this part. The Council will document that the criteria have been met and notify the parties to the section 106 process as required by this part.
(2) Council assistance. Participants in the section 106 process may seek advice, guidance and assistance from the Council on the application of this part to specific undertakings, including the resolution of disagreements, whether or not the Council is formally involved in the review of the undertaking. If questions arise regarding the conduct of the section 106 process, participants are encouraged to obtain the Council’s advice on completing the process.
(c) Consulting parties. The following parties have consultative roles in the section 106 process.
(1) State historic preservation officer. (i) The State historic preservation officer (SHPO) reflects the interests of the State and its citizens in the preservation of their cultural heritage. In accordance with section 101(b)(3) of the act, the SHPO advises and assists Federal agencies in carrying out their section 106 responsibilities and cooperates with such agencies, local governments and organizations and individuals to ensure that historic properties are taking into consideration at all levels of planning and development.
(ii) If an Indian tribe has assumed the functions of the SHPO in the section 106 process for undertakings on tribal lands, the SHPO shall participate as a consulting party if the undertaking takes place on tribal lands but affects historic properties off tribal lands, if requested in accordance with § 800.3(c)(1), or if the Indian tribe agrees to include the SHPO pursuant to § 800.3(f)(3).
(2) Indian tribes and Native Hawaiian organizations. (i) Consultation on tribal lands. (A) Tribal historic preservation officer. For a tribe that has assumed the responsibilities of the SHPO for section 106 on tribal lands under section 101(d)(2) of the act, the tribal historic preservation officer (THPO) appointed or designated in accordance with the act is the official representative for the purposes of section 106. The agency official shall consult with the THPO in lieu of the SHPO regarding undertakings occurring on or affecting historic properties on tribal lands.
(B) Tribes that have not assumed SHPO functions. When an Indian tribe has not assumed the responsibilities of the SHPO for section 106 on tribal lands under section 101(d)(2) of the act, the agency official shall consult with a representative designated by such Indian tribe in addition to the SHPO regarding undertakings occurring on or affecting historic properties on its tribal lands. Such Indian tribes have the same rights of consultation and concurrence that the THPOs are given throughout subpart B of this part, except that such consultations shall be in addition to and on the same basis as consultation with the SHPO.
(ii) Consultation on historic properties of significance to Indian tribes and Native Hawaiian organizations. Section 101(d)(6)(B) of the act requires the agency official to consult with any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to historic properties that may be affected by an undertaking. This requirement applies regardless of the location of the historic property. Such Indian tribe or Native Hawaiian organization shall be a consulting party.
(A) The agency official shall ensure that consultation in the section 106 process provides the Indian tribe or Native Hawaiian organization a reasonable opportunity to identify its concerns about historic properties, advise on the identification and evaluation of historic properties, including those of traditional religious and cultural importance, articulate its views on the undertaking’s effects on such properties, and participate in the resolution of adverse effects. It is the responsibility of the agency official to make a reasonable and good faith effort to identify Indian tribes and Native Hawaiian organizations that shall be consulted in the section 106 process. Consultation should commence early in the planning process, in order to identify and discuss relevant preservation issues and resolve concerns about the confidentiality of information on historic properties.
(B) The Federal Government has a unique legal relationship with Indian tribes set forth in the Constitution of the United States, treaties, statutes, and court decisions. Consultation with Indian tribes should be conducted in a sensitive manner respectful of tribal sovereignty. Nothing in this part alters, amends, repeals, interprets, or modifies tribal sovereignty, any treaty rights, or other rights of an Indian tribe, or preempts, modifies, or limits the exercise of any such rights.
(C) Consultation with an Indian tribe must recognize the government-to-government relationship between the Federal Government and Indian tribes. The agency official shall consult with representatives designated or identified by the tribal government or the governing body of a Native Hawaiian organization. Consultation with Indian tribes and Native Hawaiian organizations should be conducted in a manner sensitive to the concerns and needs of the Indian tribe or Native Hawaiian organization.
(D) When Indian tribes and Native Hawaiian organizations attach religious and cultural significance to historic properties off tribal lands, section 101(d)(6)(B) of the act requires Federal agencies to consult with such Indian tribes and Native Hawaiian organizations in the section 106 process. Federal agencies should be aware that frequently historic properties of religious and cultural significance are located on ancestral, aboriginal, or ceded lands of Indian tribes and Native Hawaiian organizations and should consider that when complying with the procedures in this part.
(E) An Indian tribe or a Native Hawaiian organization may enter into an agreement with an agency official that specifies how they will carry out responsibilities under this part, including concerns over the confidentiality of information. An agreement may cover all aspects of tribal participation in the section 106 process, provided that no modification may be made in the roles of other parties to the section 106 process without their consent. An agreement may grant the Indian tribe or Native Hawaiian organization additional rights to participate or concur in agency decisions in the section 106 process beyond those specified in subpart B of this part. The agency official shall provide a copy of any such agreement to the Council and the appropriate SHPOs.
(F) An Indian tribe that has not assumed the responsibilities of the SHPO for section 106 on tribal lands under section 101(d)(2) of the act may notify the agency official in writing that it is waiving its rights under § 800.6(c)(1) to execute a memorandum of agreement.
(3) Representatives of local governments. A representative of a local government with jurisdiction over the area in which the effects of an undertaking may occur is entitled to participate as a consulting party. Under other provisions of Federal law, the local government may be authorized to act as the agency official for purposes of section 106.
(4) Applicants for Federal assistance, permits, licenses, and other approvals. An applicant for Federal assistance or for a Federal permit, license, or other approval is entitled to participate as a consulting party as defined in this part. The agency official may authorize an applicant or group of applicants to initiate consultation with the SHPO/THPO and others, but remains legally responsible for all findings and determinations charged to the agency official. The agency official shall notify the SHPO/THPO when an applicant or group of applicants is so authorized. A Federal agency may authorize all applicants in a specific program pursuant to this section by providing notice to all SHPO/THPOs. Federal agencies that provide authorizations to applicants remain responsible for their government-to-government relationships with Indian tribes.
(5) Additional consulting parties. Certain individuals and organizations with a demonstrated interest in the undertaking may participate as consulting parties due to the nature of their legal or economic relation to the undertaking or affected properties, or their concern with the undertaking’s effects on historic properties.
(d) The public—(1) Nature of involvement. The views of the public are essential to informed Federal decisionmaking in the section 106 process. The agency official shall seek and consider the views of the public in a manner that reflects the nature and complexity of the undertaking and its effects on historic properties, the likely interest of the public in the effects on historic properties, confidentiality concerns of private individuals and businesses, and the relationship of the Federal involvement to the undertaking.
(2) Providing notice and information. The agency official must, except where appropriate to protect confidentiality concerns of affected parties, provide the public with information about an undertaking and its effects on historic properties and seek public comment and input. Members of the public may also provide views on their own initiative for the agency official to consider in decisionmaking.
(3) Use of agency procedures. The agency official may use the agency’s procedures for public involvement under the National Environmental Policy Act or other program requirements in lieu of public involvement requirements in subpart B of this part, if they provide adequate opportunities for public involvement consistent with this subpart.
Subpart B—The section 106 Process
§ 800.3 Initiation of the section 106 process.
(a) Establish undertaking. The agency official shall determine whether the proposed Federal action is an undertaking as defined in § 800.16(y) and, if so, whether it is a type of activity that has the potential to cause effects on historic properties.
(1) No potential to cause effects. If the undertaking is a type of activity that does not have the potential to cause effects on historic properties, assuming such historic properties were present, the agency official has no further obligations under section 106 or this part.
(2) Program alternatives. If the review of the undertaking is governed by a Federal agency program alternative established under § 800.14 or a programmatic agreement in existence before January 11, 2001, the agency official shall follow the program alternative.
(b) Coordinate with other reviews. The agency official should coordinate the steps of the section 106 process, as appropriate, with the overall planning schedule for the undertaking and with any reviews required under other authorities such as the National Environmental Policy Act, the Native American Graves Protection and Repatriation Act, the American Indian Religious Freedom Act, the Archeological Resources Protection Act, and agency-specific legislation, such as section 4(f) of the Department of Transportation Act. Where consistent with the procedures in this subpart, the agency official may use information developed for other reviews under Federal, State, or tribal law to meet the requirements of section 106.
(c) Identify the appropriate SHPO and/or THPO. As part of its initial planning, the agency official shall determine the appropriate SHPO or SHPOs to be involved in the section 106 process. The agency official shall also determine whether the undertaking may occur on or affect historic properties on any tribal lands and, if so, whether a THPO has assumed the duties of the SHPO. The agency official shall then initiate consultation with the appropriate officer or officers.
(1) Tribal assumption of SHPO responsibilities. Where an Indian tribe has assumed the section 106 responsibilities of the SHPO on tribal lands pursuant to section 101(d)(2) of the act, consultation for undertakings occurring on tribal land or for effects on tribal land is with the THPO for the Indian tribe in lieu of the SHPO. Section 101(d)(2)(D)(iii) of the act authorizes owners of properties on tribal lands which are neither owned by a member of the tribe nor held in trust by the Secretary for the benefit of the tribe to request the SHPO to participate in the section 106 process in addition to the THPO.
(2) Undertakings involving more than one State. If more than one State is involved in an undertaking, the involved SHPOs may agree to designate a lead SHPO to act on their behalf in the section 106 process, including taking actions that would conclude the section 106 process under this subpart.
(3) Conducting consultation. The agency official should consult with the SHPO/THPO in a manner appropriate to the agency planning process for the undertaking and to the nature of the undertaking and its effects on historic properties.
(4) Failure of the SHPO/THPO to respond. If the SHPO/THPO fails to respond within 30 days of receipt of a request for review of a finding or determination, the agency official may either proceed to the next step in the process based on the finding or determination or consult with the Council in lieu of the SHPO/THPO. If the SHPO/THPO re-enters the Section 106 process, the agency official shall continue the consultation without being required to reconsider previous findings or determinations.
(d) Consultation on tribal lands. Where the Indian tribe has not assumed the responsibilities of the SHPO on tribal lands, consultation with the Indian tribe regarding undertakings occurring on such tribe’s lands or effects on such tribal lands shall be in addition to and on the same basis as consultation with the SHPO. If the SHPO has withdrawn from the process, the agency official may complete the section 106 process with the Indian tribe and the Council, as appropriate. An Indian tribe may enter into an agreement with a SHPO or SHPOs specifying the SHPO’s participation in the section 106 process for undertakings occurring on or affecting historic properties on tribal lands.
(e) Plan to involve the public. In consultation with the SHPO/THPO, the agency official shall plan for involving the public in the section 106 process. The agency official shall identify the appropriate points for seeking public input and for notifying the public of proposed actions, consistent with § 800.2(d).
(f) Identify other consulting parties. In consultation with the SHPO/THPO, the agency official shall identify any other parties entitled to be consulting parties and invite them to participate as such in the section 106 process. The agency official may invite others to participate as consulting parties as the section 106 process moves forward.
(1) Involving local governments and applicants. The agency official shall invite any local governments or applicants that are entitled to be consulting parties under § 800.2(c).
(2) Involving Indian tribes and Native Hawaiian organizations. The agency official shall make a reasonable and good faith effort to identify any Indian tribes or Native Hawaiian organizations that might attach religious and cultural significance to historic properties in the area of potential effects and invite them to be consulting parties. Such Indian tribe or Native Hawaiian organization that requests in writing to be a consulting party shall be one.
(3) Requests to be consulting parties. The agency official shall consider all written requests of individuals and organizations to participate as consulting parties and, in consultation with the SHPO/THPO and any Indian tribe upon whose tribal lands an undertaking occurs or affects historic properties, determine which should be consulting parties.
(g) Expediting consultation. A consultation by the agency official with the SHPO/THPO and other consulting parties may address multiple steps in §§ 800.3 through 800.6 where the agency official and the SHPO/THPO agree it is appropriate as long as the consulting parties and the public have an adequate opportunity to express their views as provided in § 800.2(d).
§ 800.4 Identification of historic properties.
(a) Determine scope of identification efforts. In consultation with the SHPO/THPO, the agency official shall:
(1) Determine and document the area of potential effects, as defined in § 800.16(d);
(2) Review existing information on historic properties within the area of potential effects, including any data concerning possible historic properties not yet identified;
(3) Seek information, as appropriate, from consulting parties, and other individuals and organizations likely to have knowledge of, or concerns with, historic properties in the area, and identify issues relating to the undertaking’s potential effects on historic properties; and
(4) Gather information from any Indian tribe or Native Hawaiian organization identified pursuant to § 800.3(f) to assist in identifying properties, including those located off tribal lands, which may be of religious and cultural significance to them and may be eligible for the National Register, recognizing that an Indian tribe or Native Hawaiian organization may be reluctant to divulge specific information regarding the location, nature, and activities associated with such sites. The agency official should address concerns raised about confidentiality pursuant to § 800.11(c).
(b) Identify historic properties. Based on the information gathered under paragraph (a) of this section, and in consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to properties within the area of potential effects, the agency official shall take the steps necessary to identify historic properties within the area of potential effects.
(1) Level of effort. The agency official shall make a reasonable and good faith effort to carry out appropriate identification efforts, which may include background research, consultation, oral history interviews, sample field investigation, and field survey. The agency official shall take into account past planning, research and studies, the magnitude and nature of the undertaking and the degree of Federal involvement, the nature and extent of potential effects on historic properties, and the likely nature and location of historic properties within the area of potential effects. The Secretary’s standards and guidelines for identification provide guidance on this subject. The agency official should also consider other applicable professional, State, tribal, and local laws, standards, and guidelines. The agency official shall take into account any confidentiality concerns raised by Indian tribes or Native Hawaiian organizations during the identification process.
(2) Phased identification and evaluation. Where alternatives under consideration consist of corridors or large land areas, or where access to properties is restricted, the agency official may use a phased process to conduct identification and evaluation efforts. The agency official may also defer final identification and evaluation of historic properties if it is specifically provided for in a memorandum of agreement executed pursuant to § 800.6, a programmatic agreement executed pursuant to § 800.14(b), or the documents used by an agency official to comply with the National Environmental Policy Act pursuant to § 800.8. The process should establish the likely presence of historic properties within the area of potential effects for each alternative or inaccessible area through background research, consultation and an appropriate level of field investigation, taking into account the number of alternatives under consideration, the magnitude of the undertaking and its likely effects, and the views of the SHPO/THPO and any other consulting parties. As specific aspects or locations of an alternative are refined or access is gained, the agency official shall proceed with the identification and evaluation of historic properties in accordance with paragraphs (b)(1) and (c) of this section.
(c) Evaluate historic significance—(1) Apply National Register criteria. In consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to identified properties and guided by the Secretary’s standards and guidelines for evaluation, the agency official shall apply the National Register criteria (36 CFR part 63) to properties identified within the area of potential effects that have not been previously evaluated for National Register eligibility. The passage of time, changing perceptions of significance, or incomplete prior evaluations may require the agency official to reevaluate properties previously determined eligible or ineligible. The agency official shall acknowledge that Indian tribes and Native Hawaiian organizations possess special expertise in assessing the eligibility of historic properties that may possess religious and cultural significance to them.
(2) Determine whether a property is eligible. If the agency official determines any of the National Register criteria are met and the SHPO/THPO agrees, the property shall be considered eligible for the National Register for section 106 purposes. If the agency official determines the criteria are not met and the SHPO/THPO agrees, the property shall be considered not eligible. If the agency official and the SHPO/THPO do not agree, or if the Council or the Secretary so request, the agency official shall obtain a determination of eligibility from the Secretary pursuant to 36 CFR part 63. If an Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to a property off tribal lands does not agree, it may ask the Council to request the agency official to obtain a determination of eligibility.
(d) Results of identification and evaluation—(1) No historic properties affected. If the agency official finds that either there are no historic properties present or there are historic properties present but the undertaking will have no effect upon them as defined in § 800.16(i), the agency official shall provide documentation of this finding, as set forth in § 800.11(d), to the SHPO/THPO. The agency official shall notify all consulting parties, including Indian tribes and Native Hawaiian organizations, and make the documentation available for public inspection prior to approving the undertaking.
(i) If the SHPO/THPO, or the Council if it has entered the section 106 process, does not object within 30 days of receipt of an adequately documented finding, the agency official’s responsibilities under section 106 are fulfilled.
(ii) If the SHPO/THPO objects within 30 days of receipt of an adequately documented finding, the agency official shall either consult with the objecting party to resolve the disagreement, or forward the finding and supporting documentation to the Council and request that the Council review the finding pursuant to paragraphs (d)(1)(iv)(A) through (d)(1)(iv)(C) of this section. When an agency official forwards such requests for review to the Council, the agency official shall concurrently notify all consulting parties that such a request has been made and make the request documentation available to the public.
(iii) During the SHPO/THPO 30 day review period, the Council may object to the finding and provide its opinion regarding the finding to the agency official and, if the Council determines the issue warrants it, the head of the agency. A Council decision to provide its opinion to the head of an agency shall be guided by the criteria in appendix A to this part. The agency shall then proceed according to paragraphs (d)(1)(iv)(B) and (d)(1)(iv)(C) of this section.
(iv) (A) Upon receipt of the request under paragraph (d)(1)(ii) of this section, the Council will have 30 days in which to review the finding and provide the agency official and, if the Council determines the issue warrants it, the head of the agency with the Council’s opinion regarding the finding. A Council decision to provide its opinion to the head of an agency shall be guided by the criteria in appendix A to this part. If the Council does not respond within 30 days of receipt of the request, the agency official’s responsibilities under section 106 are fulfilled.
(B) The person to whom the Council addresses its opinion (the agency official or the head of the agency) shall take into account the Council’s opinion before the agency reaches a final decision on the finding.
(C) The person to whom the Council addresses its opinion (the agency official or the head of the agency) shall then prepare a summary of the decision that contains the rationale for the decision and evidence of consideration of the Council’s opinion, and provide it to the Council, the SHPO/THPO, and the consulting parties. The head of the agency may delegate his or her duties under this paragraph to the agency’s senior policy official. If the agency official’s initial finding will be revised, the agency official shall proceed in accordance with the revised finding. If the final decision of the agency is to affirm the initial agency finding of no historic properties affected, once the summary of the decision has been sent to the Council, the SHPO/THPO, and the consulting parties, the agency official’s responsibilities under section 106 are fulfilled.
(D) The Council shall retain a record of agency responses to Council opinions on their findings of no historic properties affected. The Council shall make this information available to the public.
(2) Historic properties affected. If the agency official finds that there are historic properties which may be affected by the undertaking, the agency official shall notify all consulting parties, including Indian tribes or Native Hawaiian organizations, invite their views on the effects and assess adverse effects, if any, in accordance with § 800.5.
§ 800.5 Assessment of adverse effects.
(a) Apply criteria of adverse effect. In consultation with the SHPO/THPO and any Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to identified historic properties, the agency official shall apply the criteria of adverse effect to historic properties within the area of potential effects. The agency official shall consider any views concerning such effects which have been provided by consulting parties and the public.
(1) Criteria of adverse effect. An adverse effect is found when an undertaking may alter, directly or indirectly, any of the characteristics of a historic property that qualify the property for inclusion in the National Register in a manner that would diminish the integrity of the property’s location, design, setting, materials, workmanship, feeling, or association. Consideration shall be given to all qualifying characteristics of a historic property, including those that may have been identified subsequent to the original evaluation of the property’s eligibility for the National Register. Adverse effects may include reasonably foreseeable effects caused by the undertaking that may occur later in time, be farther removed in distance or be cumulative.
(2) Examples of adverse effects. Adverse effects on historic properties include, but are not limited to:
(i) Physical destruction of or damage to all or part of the property;
(ii) Alteration of a property, including restoration, rehabilitation, repair, maintenance, stabilization, hazardous material remediation, and provision of handicapped access, that is not consistent with the Secretary’s standards for the treatment of historic properties (36 CFR part 68) and applicable guidelines;
(iii) Removal of the property from its historic location;
(iv) Change of the character of the property’s use or of physical features within the property’s setting that contribute to its historic significance;
(v) Introduction of visual, atmospheric or audible elements that diminish the integrity of the property’s significant historic features;
(vi) Neglect of a property which causes its deterioration, except where such neglect and deterioration are recognized qualities of a property of religious and cultural significance to an Indian tribe or Native Hawaiian organization; and
(vii) Transfer, lease, or sale of property out of Federal ownership or control without adequate and legally enforceable restrictions or conditions to ensure long-term preservation of the property’s historic significance.
(3) Phased application of criteria. Where alternatives under consideration consist of corridors or large land areas, or where access to properties is restricted, the agency official may use a phased process in applying the criteria of adverse effect consistent with phased identification and evaluation efforts conducted pursuant to § 800.4(b)(2).
(b) Finding of no adverse effect. The agency official, in consultation with the SHPO/THPO, may propose a finding of no adverse effect when the undertaking’s effects do not meet the criteria of paragraph (a)(1) of this section or the undertaking is modified or conditions are imposed, such as the subsequent review of plans for rehabilitation by the SHPO/THPO to ensure consistency with the Secretary’s standards for the treatment of historic properties (36 CFR part 68) and applicable guidelines, to avoid adverse effects.
(c) Consulting party review. If the agency official proposes a finding of no adverse effect, the agency official shall notify all consulting parties of the finding and provide them with the documentation specified in § 800.11(e). The SHPO/THPO shall have 30 days from receipt to review the finding.
(1) Agreement with, or no objection to, finding. Unless the Council is reviewing the finding pursuant to papagraph (c)(3) of this section, the agency official may proceed after the close of the 30 day review period if the SHPO/THPO has agreed with the finding or has not provided a response, and no consulting party has objected. The agency official shall then carry out the undertaking in accordance with paragraph (d)(1) of this section.
(2) Disagreement with finding. (i) If within the 30 day review period the SHPO/THPO or any consulting party notifies the agency official in writing that it disagrees with the finding and specifies the reasons for the disagreement in the notification, the agency official shall either consult with the party to resolve the disagreement, or request the Council to review the finding pursuant to paragraphs (c)(3)(i) and (c)(3)(ii) of this section. The agency official shall include with such request the documentation specified in § 800.11(e). The agency official shall also concurrently notify all consulting parties that such a submission has been made and make the submission documentation available to the public.
(ii) If within the 30 day review period the Council provides the agency official and, if the Council determines the issue warrants it, the head of the agency, with a written opinion objecting to the finding, the agency shall then proceed according to paragraph (c)(3)(ii) of this section. A Council decision to provide its opinion to the head of an agency shall be guided by the criteria in appendix A to this part.
(iii) The agency official should seek the concurrence of any Indian tribe or Native Hawaiian organization that has made known to the agency official that it attaches religious and cultural significance to a historic property subject to the finding. If such Indian tribe or Native Hawaiian organization disagrees with the finding, it may within the 30 day review period specify the reasons for disagreeing with the finding and request the Council to review and object to the finding pursuant to paragraph (c)(2)(ii) of this section.
(3) Council review of findings. (i) When a finding is submitted to the Council pursuant to paragraph (c)(2)(i) of this section, the Council shall review the finding and provide the agency official and, if the Council determines the issue warrants it, the head of the agency with its opinion as to whether the adverse effect criteria have been correctly applied. A Council decision to provide its opinion to the head of an agency shall be guided by the criteria in appendix A to this part. The Council will provide its opinion within 15 days of receiving the documented finding from the agency official. The Council at its discretion may extend that time period for 15 days, in which case it shall notify the agency of such extension prior to the end of the initial 15 day period. If the Council does not respond within the applicable time period, the agency official’s responsibilities under section 106 are fulfilled.
(ii)(A) The person to whom the Council addresses its opinion (the agency official or the head of the agency) shall take into account the Council’s opinion in reaching a final decision on the finding.
(B) The person to whom the Council addresses its opinion (the agency official or the head of the agency) shall prepare a summary of the decision that contains the rationale for the decision and evidence of consideration of the Council’s opinion, and provide it to the Council, the SHPO/THPO, and the consulting parties. The head of the agency may delegate his or her duties under this paragraph to the agency’s senior policy official. If the agency official’s initial finding will be revised, the agency official shall proceed in accordance with the revised finding. If the final decision of the agency is to affirm the initial finding of no adverse effect, once the summary of the decision has been sent to the Council, the SHPO/THPO, and the consulting parties, the agency official’s responsibilities under section 106 are fulfilled.
(C) The Council shall retain a record of agency responses to Council opinions on their findings of no adverse effects. The Council shall make this information available to the public.
(d) Results of assessment—(1) No adverse effect. The agency official shall maintain a record of the finding and provide information on the finding to the public on request, consistent with the confidentiality provisions of § 800.11(c). Implementation of the undertaking in accordance with the finding as documented fulfills the agency official’s responsibilities under section 106 and this part. If the agency official will not conduct the undertaking as proposed in the finding, the agency official shall reopen consultation under paragraph (a) of this section.
(2) Adverse effect. If an adverse effect is found, the agency official shall consult further to resolve the adverse effect pursuant to § 800.6.
§ 800.6 Resolution of adverse effects.
(a) Continue consultation. The agency official shall consult with the SHPO/THPO and other consulting parties, including Indian tribes and Native Hawaiian organizations, to develop and evaluate alternatives or modifications to the undertaking that could avoid, minimize, or mitigate adverse effects on historic properties.
(1) Notify the Council and determine Council participation. The agency official shall notify the Council of the adverse effect finding by providing the documentation specified in § 800.11(e).
(i) The notice shall invite the Council to participate in the consultation when:
(A) The agency official wants the Council to participate;
(B) The undertaking has an adverse effect upon a National Historic Landmark; or
(C) A programmatic agreement under § 800.14(b) will be prepared;
(ii) The SHPO/THPO, an Indian tribe or Native Hawaiian organization, or any other consulting party may at any time independently request the Council to participate in the consultation.
(iii) The Council shall advise the agency official and all consulting parties whether it will participate within 15 days of receipt of notice or other request. Prior to entering the process, the Council shall provide written notice to the agency official and the consulting parties that its decision to participate meets the criteria set forth in appendix A to this part. The Council shall also advise the head of the agency of its decision to enter the process. Consultation with Council participation is conducted in accordance with paragraph (b)(2) of this section.
(iv) If the Council does not join the consultation, the agency official shall proceed with consultation in accordance with paragraph (b)(1) of this section.
(2) Involve consulting parties. In addition to the consulting parties identified under § 800.3(f), the agency official, the SHPO/THPO and the Council, if participating, may agree to invite other individuals or organizations to become consulting parties. The agency official shall invite any individual or organization that will assume a specific role or responsibility in a memorandum of agreement to participate as a consulting party.
(3) Provide documentation. The agency official shall provide to all consulting parties the documentation specified in § 800.11(e), subject to the confidentiality provisions of § 800.11(c), and such other documentation as may be developed during the consultation to resolve adverse effects.
(4) Involve the public. The agency official shall make information available to the public, including the documentation specified in § 800.11(e), subject to the confidentiality provisions of § 800.11(c). The agency official shall provide an opportunity for members of the public to express their views on resolving adverse effects of the undertaking. The agency official should use appropriate mechanisms, taking into account the magnitude of the undertaking and the nature of its effects upon historic properties, the likely effects on historic properties, and the relationship of the Federal involvement to the undertaking to ensure that the public’s views are considered in the consultation. The agency official should also consider the extent of notice and information concerning historic preservation issues afforded the public at earlier steps in the section 106 process to determine the appropriate level of public involvement when resolving adverse effects so that the standards of § 800.2(d) are met.
(5) Restrictions on disclosure of information. Section 304 of the act and other authorities may limit the disclosure of information under paragraphs (a)(3) and (a)(4) of this section. If an Indian tribe or Native Hawaiian organization objects to the disclosure of information or if the agency official believes that there are other reasons to withhold information, the agency official shall comply with § 800.11(c) regarding the disclosure of such information.
(b) Resolve adverse effects—(1) Resolution without the Council. (i) The agency official shall consult with the SHPO/THPO and other consulting parties to seek ways to avoid, minimize or mitigate the adverse effects.
(ii) The agency official may use standard treatments established by the Council under § 800.14(d) as a basis for a memorandum of agreement.
(iii) If the Council decides to join the consultation, the agency official shall follow paragraph (b)(2) of this section.
(iv) If the agency official and the SHPO/THPO agree on how the adverse effects will be resolved, they shall execute a memorandum of agreement. The agency official must submit a copy of the executed memorandum of agreement, along with the documentation specified in § 800.11(f), to the Council prior to approving the undertaking in order to meet the requirements of section 106 and this subpart.
(v) If the agency official, and the SHPO/THPO fail to agree on the terms of a memorandum of agreement, the agency official shall request the Council to join the consultation and provide the Council with the documentation set forth in § 800.11(g). If the Council decides to join the consultation, the agency official shall proceed in accordance with paragraph (b)(2) of this section. If the Council decides not to join the consultation, the Council will notify the agency and proceed to comment in accordance with § 800.7(c).
(2) Resolution with Council participation. If the Council decides to participate in the consultation, the agency official shall consult with the SHPO/THPO, the Council, and other consulting parties, including Indian tribes and Native Hawaiian organizations under § 800.2(c)(3), to seek ways to avoid, minimize or mitigate the adverse effects. If the agency official, the SHPO/THPO, and the Council agree on how the adverse effects will be resolved, they shall execute a memorandum of agreement.
(c) Memorandum of agreement. A memorandum of agreement executed and implemented pursuant to this section evidences the agency official’s compliance with section 106 and this part and shall govern the undertaking and all of its parts. The agency official shall ensure that the undertaking is carried out in accordance with the memorandum of agreement.
(1) Signatories. The signatories have sole authority to execute, amend or terminate the agreement in accordance with this subpart.
(i) The agency official and the SHPO/THPO are the signatories to a memorandum of agreement executed pursuant to paragraph (b)(1) of this section.
(ii) The agency official, the SHPO/THPO, and the Council are the signatories to a memorandum of agreement executed pursuant to paragraph (b)(2) of this section.
(iii) The agency official and the Council are signatories to a memorandum of agreement executed pursuant to § 800.7(a)(2).
(2) Invited signatories. (i) The agency official may invite additional parties to be signatories to a memorandum of agreement. Any such party that signs the memorandum of agreement shall have the same rights with regard to seeking amendment or termination of the memorandum of agreement as other signatories.
(ii) The agency official may invite an Indian tribe or Native Hawaiian organization that attaches religious and cultural significance to historic properties located off tribal lands to be a signatory to a memorandum of agreement concerning such properties.
(iii) The agency official should invite any party that assumes a responsibility under a memorandum of agreement to be a signatory.
(iv) The refusal of any party invited to become a signatory to a memorandum of agreement pursuant to paragraph (c)(2) of this section does not invalidate the memorandum of agreement.
(3) Concurrence by others. The agency official may invite all consulting parties to concur in the memorandum of agreement. The signatories may agree to invite others to concur. The refusal of any party invited to concur in the memorandum of agreement does not invalidate the memorandum of agreement.
(4) Reports on implementation. Where the signatories agree it is appropriate, a memorandum of agreement shall include a provision for monitoring and reporting on its implementation.
(5) Duration. A memorandum of agreement shall include provisions for termination and for reconsideration of terms if the undertaking has not been implemented within a specified time.
(6) Discoveries. Where the signatories agree it is appropriate, a memorandum of agreement shall include provisions to deal with the subsequent discovery or identification of additional historic properties affected by the undertaking.
(7) Amendments. The signatories to a memorandum of agreement may amend it. If the Council was not a signatory to the original agreement and the signatories execute an amended agreement, the agency official shall file it with the Council.
(8) Termination. If any signatory determines that the terms of a memorandum of agreement cannot be or are not being carried out, the signatories shall consult to seek amendment of the agreement. If the agreement is not amended, any signatory may terminate it. The agency official shall either execute a memorandum of agreement with signatories under paragraph (c)(1) of this section or request the comments of the Council under § 800.7(a).
(9) Copies. The agency official shall provide each consulting party with a copy of any memorandum of agreement executed pursuant to this subpart.
§ 800.7 Failure to resolve adverse effects.
(a) Termination of consultation. After consulting to resolve adverse effects pursuant to § 800.6(b)(2), the agency official, the SHPO/THPO, or the Council may determine that further consultation will not be productive and terminate consultation. Any party that terminates consultation shall notify the other consulting parties and provide them the reasons for terminating in writing.
(1) If the agency official terminates consultation, the head of the agency or an Assistant Secretary or other officer with major department-wide or agency-wide responsibilities shall request that the Council comment pursuant to paragraph (c) of this section and shall notify all consulting parties of the request.
(2) If the SHPO terminates consultation, the agency official and the Council may execute a memorandum of agreement without the SHPO’s involvement.
(3) If a THPO terminates consultation regarding an undertaking occurring on or affecting historic properties on its tribal lands, the Council shall comment pursuant to paragraph (c) of this section.
(4) If the Council terminates consultation, the Council shall notify the agency official, the agency’s Federal preservation officer and all consulting parties of the termination and comment under paragraph (c) of this section. The Council may consult with the agency’s Federal preservation officer prior to terminating consultation to seek to resolve issues concerning the undertaking and its effects on historic properties.
(b) Comments without termination. The Council may determine that it is appropriate to provide additional advisory comments upon an undertaking for which a memorandum of agreement will be executed. The Council shall provide them to the agency official when it executes the memorandum of agreement.
(c) Comments by the Council—(1) Preparation. The Council shall provide an opportunity for the agency official, all consulting parties, and the public to provide their views within the time frame for developing its comments. Upon request of the Council, the agency official shall provide additional existing information concerning the undertaking and assist the Council in arranging an onsite inspection and an opportunity for public participation.
(2) Timing. The Council shall transmit its comments within 45 days of receipt of a request under paragraph (a)(1) or (a)(3) of this section or § 800.8(c)(3), or termination by the Council under § 800.6(b)(1)(v) or paragraph (a)(4) of this section, unless otherwise agreed to by the agency official.
(3) Transmittal. The Council shall provide its comments to the head of the agency requesting comment with copies to the agency official, the agency’s Federal preservation officer, all consulting parties, and others as appropriate.
(4) Response to Council comment. The head of the agency shall take into account the Council’s comments in reaching a final decision on the undertaking. Section 110(l) of the act directs that the head of the agency shall document this decision and may not delegate his or her responsibilities pursuant to section 106. Documenting the agency head’s decision shall include:
(i) Preparing a summary of the decision that contains the rationale for the decision and evidence of consideration of the Council’s comments and providing it to the Council prior to approval of the undertaking;
(ii) Providing a copy of the summary to all consulting parties; and
(iii) Notifying the public and making the record available for public inspection.
§ 800.8 Coordination With the National Environmental Policy Act.
(a) General principles—(1) Early coordination. Federal agencies are encouraged to coordinate compliance with section 106 and the procedures in this part with any steps taken to meet the requirements of the National Environmental Policy Act (NEPA). Agencies should consider their section 106 responsibilities as early as possible in the NEPA process, and plan their public participation, analysis, and review in such a way that they can meet the purposes and requirements of both statutes in a timely and efficient manner. The determination of whether an undertaking is a “major Federal action significantly affecting the quality of the human environment,” and therefore requires preparation of an environmental impact statement (EIS) under NEPA, should include consideration of the undertaking’s likely effects on historic properties. A finding of adverse effect on a historic property does not necessarily require an EIS under NEPA.
(2) Consulting party roles. SHPO/THPOs, Indian tribes, and Native Hawaiian organizations, other consulting parties, and organizations and individuals who may be concerned with the possible effects of an agency action on historic properties should be prepared to consult with agencies early in the NEPA process, when the purpose of and need for the proposed action as well as the widest possible range of alternatives are under consideration.
(3) Inclusion of historic preservation issues. Agency officials should ensure that preparation of an environmental assessment (EA) and finding of no significant impact (FONSI) or an EIS and record of decision (ROD) includes appropriate scoping, identification of historic properties, assessment of effects upon them, and consultation leading to resolution of any adverse effects.
(b) Actions categorically excluded under NEPA. If a project, activity or program is categorically excluded from NEPA review under an agency’s NEPA procedures, the agency official shall determine if it still qualifies as an undertaking requiring review under section 106 pursuant to § 800.3(a). If so, the agency official shall proceed with section 106 review in accordance with the procedures in this subpart.
(c) Use of the NEPA process for section 106 purposes. An agency official may use the process and documentation required for the preparation of an EA/FONSI or an EIS/ROD to comply with section 106 in lieu of the procedures set forth in §§ 800.3 through 800.6 if the agency official has notified in advance the SHPO/THPO and the Council that it intends to do so and the following standards are met.
(1) Standards for developing environmental documents to comply with Section 106. During preparation of the EA or draft EIS (DEIS) the agency official shall:
(i) Identify consulting parties either pursuant to § 800.3(f) or through the NEPA scoping process with results consistent with § 800.3(f);
(ii) Identify historic properties and assess the effects of the undertaking on such properties in a manner consistent with the standards and criteria of §§ 800.4 through 800.5, provided that the scope and timing of these steps may be phased to reflect the agency official’s consideration of project alternatives in the NEPA process and the effort is commensurate with the assessment of other environmental factors;
(iii) Consult regarding the effects of the undertaking on historic properties with the SHPO/THPO, Indian tribes, and Native Hawaiian organizations that might attach religious and cultural significance to affected historic properties, other consulting parties, and the Council, where appropriate, during NEPA scoping, environmental analysis, and the preparation of NEPA documents;
(iv) Involve the public in accordance with the agency’s published NEPA procedures; and (v) Develop in consultation with identified consulting parties alternatives and proposed measures that might avoid, minimize or mitigate any adverse effects of the undertaking on historic properties and describe them in the EA or DEIS.
(2) Review of environmental documents. (i) The agency official shall submit the EA, DEIS, or EIS to the SHPO/THPO, Indian tribes, and Native Hawaiian organizations that might attach religious and cultural significance to affected historic properties, and other consulting parties prior to or when making the document available for public comment. If the document being prepared is a DEIS or EIS, the agency official shall also submit it to the Council.
(ii) Prior to or within the time allowed for public comment on the document, a SHPO/THPO, an Indian tribe or Native Hawaiian organization, another consulting party or the Council may object to the agency official that preparation of the EA, DEIS, or EIS has not met the standards set forth in paragraph (c)(1) of this section or that the substantive resolution of the effects on historic properties proposed in an EA, DEIS, or EIS is inadequate. If the agency official receives such an objection, the agency official shall refer the matter to the Council.
(3) Resolution of objections. Within 30 days of the agency official’s referral of an objection under paragraph (c)(2)(ii) of this section, the Council shall review the objection and notify the agency as to its opinion on the objection.
(i) If the Council agrees with the objection:
(A) The Council shall provide the agency official and, if the Council determines the issue warrants it, the head of the agency with the Council’s opinion regarding the objection. A Council decision to provide its opinion to the head of an agency shall be guided by the criteria in appendix A to this part. The person to whom the Council addresses its opinion (the agency official or the head of the agency) shall take into account the Council’s opinion in reaching a final decision on the issue of the objection.
(B) The person to whom the Council addresses its opinion (the agency official or the head of the agency) shall prepare a summary of the decision that contains the rationale for the decision and evidence of consideration of the Council’s opinion, and provide it to the Council. The head of the agency may delegate his or her duties under this paragraph to the agency’s senior Policy Official. If the agency official’s initial decision regarding the matter that is the subject of the objection will be revised, the agency official shall proceed in accordance with the revised decision. If the final decision of the agency is to affirm the initial agency decision, once the summary of the final decision has been sent to the Council, the agency official shall continue its compliance with this section.
(ii) If the Council disagrees with the objection, the Council shall so notify the agency official, in which case the agency official shall continue its compliance with this section.
(iii) If the Council fails to respond to the objection within the 30 day period, the agency official shall continue its compliance with this section.
(4) Approval of the undertaking. If the agency official has found, during the preparation of an EA or EIS that the effects of an undertaking on historic properties are adverse, the agency official shall develop measures in the EA, DEIS, or EIS to avoid, minimize, or mitigate such effects in accordance with paragraph (c)(1)(v) of this section. The agency official’s responsibilities under section 106 and the procedures in this subpart shall then be satisfied when either:
(i) A binding commitment to such proposed measures is incorporated in:
(A) The ROD, if such measures were proposed in a DEIS or EIS; or
(B) An MOA drafted in compliance with § 800.6(c); or
(ii) The Council has commented under § 800.7 and received the agency’s response to such comments.
(5) Modification of the undertaking. If the undertaking is modified after approval of the FONSI or the ROD in a manner that changes the undertaking or alters its effects on historic properties, or if the agency official fails to ensure that the measures to avoid, minimize or mitigate adverse effects (as specified in either the FONSI or the ROD, or in the binding commitment adopted pursuant to paragraph (c)(4) of this section) are carried out, the agency official shall notify the Council and all consulting parties that supplemental environmental documents will be prepared in compliance with NEPA or that the procedures in §§ 800.3 through 800.6 will be followed as necessary.
§ 800.9 Council review of section 106 compliance.
(a) Assessment of agency official compliance for individual undertakings. The Council may provide to the agency official its advisory opinion regarding the substance of any finding, determination or decision or regarding the adequacy of the agency official’s compliance with the procedures under this part. The Council may provide such advice at any time at the request of any individual, agency or organization or on its own initiative. The agency official shall consider the views of the Council in reaching a decision on the matter in question.
(b) Agency foreclosure of the Council’s opportunity to comment. Where an agency official has failed to complete the requirements of section 106 in accordance with the procedures in this part prior to the approval of an undertaking, the Council’s opportunity to comment may be foreclosed. The Council may review a case to determine whether a foreclosure has occurred. The Council shall notify the agency official and the agency’s Federal preservation officer and allow 30 days for the agency official to provide information as to whether foreclosure has occurred. If the Council determines foreclosure has occurred, the Council shall transmit the determination to the agency official and the head of the agency. The Council shall also make the determination available to the public and any parties known to be interested in the undertaking and its effects upon historic properties.
(c) Intentional adverse effects by applicants—(1) Agency responsibility. Section 110(k) of the act prohibits a Federal agency from granting a loan, loan guarantee, permit, license or other assistance to an applicant who, with intent to avoid the requirements of section 106, has intentionally significantly adversely affected a historic property to which the grant would relate, or having legal power to prevent it, has allowed such significant adverse effect to occur, unless the agency, after consultation with the Council, determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant. Guidance issued by the Secretary pursuant to section 110 of the act governs its implementation.
(2) Consultation with the Council. When an agency official determines, based on the actions of an applicant, that section 110(k) is applicable and that circumstances may justify granting the assistance, the agency official shall notify the Council and provide documentation specifying the circumstances under which the adverse effects to the historic property occurred and the degree of damage to the integrity of the property. This documentation shall include any views obtained from the applicant, SHPO/THPO, an Indian tribe if the undertaking occurs on or affects historic properties on tribal lands, and other parties known to be interested in the undertaking.
(i) Within thirty days of receiving the agency official’s notification, unless otherwise agreed to by the agency official, the Council shall provide the agency official with its opinion as to whether circumstances justify granting assistance to the applicant and any possible mitigation of the adverse effects.
(ii) The agency official shall consider the Council’s opinion in making a decision on whether to grant assistance to the applicant, and shall notify the Council, the SHPO/THPO, and other parties known to be interested in the undertaking prior to granting the assistance.
(3) Compliance with Section 106. If an agency official, after consulting with the Council, determines to grant the assistance, the agency official shall comply with §§ 800.3 through 800.6 to take into account the effects of the undertaking on any historic properties.
(d) Evaluation of Section 106 operations. The Council may evaluate the operation of the section 106 process by periodic reviews of how participants have fulfilled their legal responsibilities and how effectively the outcomes reached advance the purposes of the act.
(1) Information from participants. Section 203 of the act authorizes the Council to obtain information from Federal agencies necessary to conduct evaluation of the section 106 process. The agency official shall make documentation of agency policies, operating procedures and actions taken to comply with section 106 available to the Council upon request. The Council may request available information and documentation from other participants in the section 106 process.
(2) Improving the operation of section 106. Based upon any evaluation of the section 106 process, the Council may make recommendations to participants, the heads of Federal agencies, and the Secretary of actions to improve the efficiency and effectiveness of the process. Where the Council determines that an agency official or a SHPO/THPO has failed to properly carry out the responsibilities assigned under the process in this part, the Council may participate in individual case reviews conducted under such process in addition to the SHPO/THPO for such period that it determines is necessary to improve performance or correct deficiencies. If the Council finds a pattern of failure by a Federal agency in carrying out its responsibilities under section 106, the Council may review the policies and programs of the agency related to historic preservation pursuant to section 202(a)(6) of the act and recommend methods to improve the effectiveness, coordination, and consistency of those policies and programs with section 106.
§ 800.10 Special requirements for protecting National Historic Landmarks.
(a) Statutory requirement. Section 110(f) of the act requires that the agency official, to the maximum extent possible, undertake such planning and actions as may be necessary to minimize harm to any National Historic Landmark that may be directly and adversely affected by an undertaking. When commenting on such undertakings, the Council shall use the process set forth in §§ 800.6 through 800.7 and give special consideration to protecting National Historic Landmarks as specified in this section.
(b) Resolution of adverse effects. The agency official shall request the Council to participate in any consultation to resolve adverse effects on National Historic Landmarks conducted under § 800.6.
(c) Involvement of the Secretary. The agency official shall notify the Secretary of any consultation involving a National Historic Landmark and invite the Secretary to participate in the consultation where there may be an adverse effect. The Council may request a report from the Secretary under section 213 of the act to assist in the consultation.
(d) Report of outcome. When the Council participates in consultation under this section, it shall report the outcome of the section 106 process, providing its written comments or any memoranda of agreement to which it is a signatory, to the Secretary and the head of the agency responsible for the undertaking.
§ 800.11 Documentation standards.
(a) Adequacy of documentation. The agency official shall ensure that a determination, finding, or agreement under the procedures in this subpart is supported by sufficient documentation to enable any reviewing parties to understand its basis. The agency official shall provide such documentation to the extent permitted by law and within available funds. When an agency official is conducting phased identification or evaluation under this subpart, the documentation standards regarding description of historic properties may be applied flexibly. If the Council, or the SHPO/THPO when the Council is not involved, determines the applicable documentation standards are not met, the Council or the SHPO/THPO, as appropriate, shall notify the agency official and specify the information needed to meet the standard. At the request of the agency official or any of the consulting parties, the Council shall review any disputes over whether documentation standards are met and provide its views to the agency official and the consulting parties.
(b) Format. The agency official may use documentation prepared to comply with other laws to fulfill the requirements of the procedures in this subpart, if that documentation meets the standards of this section.
(c) Confidentiality—(1) Authority to withhold information. Section 304 of the act provides that the head of a Federal agency or other public official receiving grant assistance pursuant to the act, after consultation with the Secretary, shall withhold from public disclosure information about the location, character, or ownership of a historic property when disclosure may cause a significant invasion of privacy; risk harm to the historic property; or impede the use of a traditional religious site by practitioners. When the head of a Federal agency or other public official has determined that information should be withheld from the public pursuant to these criteria, the Secretary, in consultation with such Federal agency head or official, shall determine who may have access to the information for the purposes of carrying out the act.
(2) Consultation with the Council. When the information in question has been developed in the course of an agency’s compliance with this part, the Secretary shall consult with the Council in reaching determinations on the withholding and release of information. The Federal agency shall provide the Council with available information, including views of the SHPO/THPO, Indian tribes and Native Hawaiian organizations, related to the confidentiality concern. The Council shall advise the Secretary and the Federal agency within 30 days of receipt of adequate documentation.
(3) Other authorities affecting confidentiality. Other Federal laws and program requirements may limit public access to information concerning an undertaking and its effects on historic properties. Where applicable, those authorities shall govern public access to information developed in the section 106 process and may authorize the agency official to protect the privacy of non-governmental applicants.
(d) Finding of no historic properties affected. Documentation shall include:
(1) A description of the undertaking, specifying the Federal involvement, and its area of potential effects, including photographs, maps, drawings, as necessary;
(2) A description of the steps taken to identify historic properties, including, as appropriate, efforts to seek information pursuant to § 800.4(b); and
(3) The basis for determining that no historic properties are present or affected.
(e) Finding of no adverse effect or adverse effect. Documentation shall include:
(1) A description of the undertaking, specifying the Federal involvement, and its area of potential effects, including photographs, maps, and drawings, as necessary;
(2) A description of the steps taken to identify historic properties;
(3) A description of the affected historic properties, including information on the characteristics that qualify them for the National Register;
(4) A description of the undertaking’s effects on historic properties;
(5) An explanation of why the criteria of adverse effect were found applicable or inapplicable, including any conditions or future actions to avoid, minimize or mitigate adverse effects; and
(6) Copies or summaries of any views provided by consulting parties and the public.
(f) Memorandum of agreement. When a memorandum of agreement is filed with the Council, the documentation shall include, any substantive revisions or additions to the documentation provided the Council pursuant to § 800.6(a)(1), an evaluation of any measures considered to avoid or minimize the undertaking’s adverse effects and a summary of the views of consulting parties and the public.
(g) Requests for comment without a memorandum of agreement. Documentation shall include:
(1) A description and evaluation of any alternatives or mitigation measures that the agency official proposes to resolve the undertaking’s adverse effects;
(2) A description of any reasonable alternatives or mitigation measures that were considered but not chosen, and the reasons for their rejection;
(3) Copies or summaries of any views submitted to the agency official concerning the adverse effects of the undertaking on historic properties and alternatives to reduce or avoid those effects; and
(4) Any substantive revisions or additions to the documentation provided the Council pursuant to § 800.6(a)(1).
§ 800.12 Emergency situations.
(a) Agency procedures. The agency official, in consultation with the appropriate SHPOs/THPOs, affected Indian tribes and Native Hawaiian organizations, and the Council, is encouraged to develop procedures for taking historic properties into account during operations which respond to a disaster or emergency declared by the President, a tribal government, or the Governor of a State or which respond to other immediate threats to life or property. If approved by the Council, the procedures shall govern the agency’s historic preservation responsibilities during any disaster or emergency in lieu of §§ 800.3 through 800.6.
(b) Alternatives to agency procedures. In the event an agency official proposes an emergency undertaking as an essential and immediate response to a disaster or emergency declared by the President, a tribal government, or the Governor of a State or another immediate threat to life or property, and the agency has not developed procedures pursuant to paragraph (a) of this section, the agency official may comply with section 106 by:
(1) Following a programmatic agreement developed pursuant to § 800.14(b) that contains specific provisions for dealing with historic properties in emergency situations; or
(2) Notifying the Council, the appropriate SHPO/THPO and any Indian tribe or Native Hawaiian organization that may attach religious and cultural significance to historic properties likely to be affected prior to the undertaking and affording them an opportunity to comment within seven days of notification. If the agency official determines that circumstances do not permit seven days for comment, the agency official shall notify the Council, the SHPO/THPO and the Indian tribe or Native Hawaiian organization and invite any comments within the time available.
(c) Local governments responsible for section 106 compliance. When a local government official serves as the agency official for section 106 compliance, paragraphs (a) and (b) of this section also apply to an imminent threat to public health or safety as a result of a natural disaster or emergency declared by a local government’s chief executive officer or legislative body, provided that if the Council or SHPO/THPO objects to the proposed action within seven days, the agency official shall comply with §§ 800.3 through 800.6.
(d) Applicability. This section applies only to undertakings that will be implemented within 30 days after the disaster or emergency has been formally declared by the appropriate authority. An agency may request an extension of the period of applicability from the Council prior to the expiration of the 30 days. Immediate rescue and salvage operations conducted to preserve life or property are exempt from the provisions of section 106 and this part.
§ 800.13 Post-review discoveries.
(a) Planning for subsequent discoveries—(1) Using a programmatic agreement. An agency official may develop a programmatic agreement pursuant to § 800.14(b) to govern the actions to be taken when historic properties are discovered during the implementation of an undertaking.
(2) Using agreement documents. When the agency official’s identification efforts in accordance with § 800.4 indicate that historic properties are likely to be discovered during implementation of an undertaking and no programmatic agreement has been developed pursuant to paragraph (a)(1) of this section, the agency official shall include in any finding of no adverse effect or memorandum of agreement a process to resolve any adverse effects upon such properties. Actions in conformance with the process satisfy the agency official’s responsibilities under section 106 and this part.
(b) Discoveries without prior planning. If historic properties are discovered or unanticipated effects on historic properties found after the agency official has completed the section 106 process without establishing a process under paragraph (a) of this section, the agency official shall make reasonable efforts to avoid, minimize or mitigate adverse effects to such properties and:
(1) If the agency official has not approved the undertaking or if construction on an approved undertaking has not commenced, consult to resolve adverse effects pursuant to § 800.6; or
(2) If the agency official, the SHPO/THPO and any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to the affected property agree that such property is of value solely for its scientific, prehistoric, historic or archeological data, the agency official may comply with the Archeological and Historic Preservation Act instead of the procedures in this part and provide the Council, the SHPO/THPO, and the Indian tribe or Native Hawaiian organization with a report on the actions within a reasonable time after they are completed; or
(3) If the agency official has approved the undertaking and construction has commenced, determine actions that the agency official can take to resolve adverse effects, and notify the SHPO/THPO, any Indian tribe or Native Hawaiian organization that might attach religious and cultural significance to the affected property, and the Council within 48 hours of the discovery. The notification shall describe the agency official’s assessment of National Register eligibility of the property and proposed actions to resolve the adverse effects. The SHPO/THPO, the Indian tribe or Native Hawaiian organization and the Council shall respond within 48 hours of the notification. The agency official shall take into account their recommendations regarding National Register eligibility and proposed actions, and then carry out appropriate actions. The agency official shall provide the SHPO/THPO, the Indian tribe or Native Hawaiian organization and the Council a report of the actions when they are completed.
(c) Eligibility of properties. The agency official, in consultation with the SHPO/THPO, may assume a newly-discovered property to be eligible for the National Register for purposes of section 106. The agency official shall specify the National Register criteria used to assume the property’s eligibility so that information can be used in the resolution of adverse effects.
(d) Discoveries on tribal lands. If historic properties are discovered on tribal lands, or there are unanticipated effects on historic properties found on tribal lands, after the agency official has completed the section 106 process without establishing a process under paragraph (a) of this section and construction has commenced, the agency official shall comply with applicable tribal regulations and procedures and obtain the concurrence of the Indian tribe on the proposed action.
Subpart C—Program Alternatives
§ 800.14 Federal agency program alternatives.
(a) Alternate procedures. An agency official may develop procedures to implement section 106 and substitute them for all or part of subpart B of this part if they are consistent with the Council’s regulations pursuant to section 110(a)(2)(E) of the act.
(1) Development of procedures. The agency official shall consult with the Council, the National Conference of State Historic Preservation Officers, or individual SHPO/THPOs, as appropriate, and Indian tribes and Native Hawaiian organizations, as specified in paragraph (f) of this section, in the development of alternate procedures, publish notice of the availability of proposed alternate procedures in the
(2) Council review. The agency official shall submit the proposed alternate procedures to the Council for a 60-day review period. If the Council finds the procedures to be consistent with this part, it shall notify the agency official and the agency official may adopt them as final alternate procedures.
(3) Notice. The agency official shall notify the parties with which it has consulted and publish notice of final alternate procedures in the
(4) Legal effect. Alternate procedures adopted pursuant to this subpart substitute for the Council’s regulations for the purposes of the agency’s compliance with section 106, except that where an Indian tribe has entered into an agreement with the Council to substitute tribal historic preservation regulations for the Council’s regulations under section 101(d)(5) of the act, the agency shall follow those regulations in lieu of the agency’s procedures regarding undertakings on tribal lands. Prior to the Council entering into such agreements, the Council will provide Federal agencies notice and opportunity to comment on the proposed substitute tribal regulations.
(b) Programmatic agreements. The Council and the agency official may negotiate a programmatic agreement to govern the implementation of a particular program or the resolution of adverse effects from certain complex project situations or multiple undertakings.
(1) Use of programmatic agreements. A programmatic agreement may be used:
(i) When effects on historic properties are similar and repetitive or are multi-State or regional in scope;
(ii) When effects on historic properties cannot be fully determined prior to approval of an undertaking;
(iii) When nonfederal parties are delegated major decisionmaking responsibilities;
(iv) Where routine management activities are undertaken at Federal installations, facilities, or other land-management units; or
(v) Where other circumstances warrant a departure from the normal section 106 process.
(2) Developing programmatic agreements for agency programs. (i) The consultation shall involve, as appropriate, SHPO/THPOs, the National Conference of State Historic Preservation Officers (NCSHPO), Indian tribes and Native Hawaiian organizations, other Federal agencies, and members of the public. If the programmatic agreement has the potential to affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe or Native Hawaiian organization, the agency official shall also follow paragraph (f) of this section.
(ii) Public participation. The agency official shall arrange for public participation appropriate to the subject matter and the scope of the program and in accordance with subpart A of this part. The agency official shall consider the nature of the program and its likely effects on historic properties and take steps to involve the individuals, organizations and entities likely to be interested.
(iii) Effect. The programmatic agreement shall take effect when executed by the Council, the agency official and the appropriate SHPOs/THPOs when the programmatic agreement concerns a specific region or the president of NCSHPO when NCSHPO has participated in the consultation. A programmatic agreement shall take effect on tribal lands only when the THPO, Indian tribe, or a designated representative of the tribe is a signatory to the agreement. Compliance with the procedures established by an approved programmatic agreement satisfies the agency’s section 106 responsibilities for all individual undertakings of the program covered by the agreement until it expires or is terminated by the agency, the president of NCSHPO when a signatory, or the Council. Termination by an individual SHPO/THPO shall only terminate the application of a regional programmatic agreement within the jurisdiction of the SHPO/THPO. If a THPO assumes the responsibilities of a SHPO pursuant to section 101(d)(2) of the act and the SHPO is signatory to programmatic agreement, the THPO assumes the role of a signatory, including the right to terminate a regional programmatic agreement on lands under the jurisdiction of the tribe.
(iv) Notice. The agency official shall notify the parties with which it has consulted that a programmatic agreement has been executed under paragraph (b) of this section, provide appropriate public notice before it takes effect, and make any internal agency procedures implementing the agreement readily available to the Council, SHPO/THPOs, and the public.
(v) If the Council determines that the terms of a programmatic agreement are not being carried out, or if such an agreement is terminated, the agency official shall comply with subpart B of this part with regard to individual undertakings of the program covered by the agreement.
(3) Developing programmatic agreements for complex or multiple undertakings. Consultation to develop a programmatic agreement for dealing with the potential adverse effects of complex projects or multiple undertakings shall follow § 800.6. If consultation pertains to an activity involving multiple undertakings and the parties fail to reach agreement, then the agency official shall comply with the provisions of subpart B of this part for each individual undertaking.
(4) Prototype programmatic agreements. The Council may designate an agreement document as a prototype programmatic agreement that may be used for the same type of program or undertaking in more than one case or area. When an agency official uses such a prototype programmatic agreement, the agency official may develop and execute the agreement with the appropriate SHPO/THPO and the agreement shall become final without need for Council participation in consultation or Council signature.
(c) Exempted categories—(1) Criteria for establishing. The Council or an agency official may propose a program or category of undertakings that may be exempted from review under the provisions of subpart B of this part, if the program or category meets the following criteria:
(i) The actions within the program or category would otherwise qualify as “undertakings” as defined in § 800.16;
(ii) The potential effects of the undertakings within the program or category upon historic properties are foreseeable and likely to be minimal or not adverse; and
(iii) Exemption of the program or category is consistent with the purposes of the act.
(2) Public participation. The proponent of the exemption shall arrange for public participation appropriate to the subject matter and the scope of the exemption and in accordance with the standards in subpart A of this part. The proponent of the exemption shall consider the nature of the exemption and its likely effects on historic properties and take steps to involve individuals, organizations and entities likely to be interested.
(3) Consultation with SHPOs/THPOs. The proponent of the exemption shall notify and consider the views of the SHPOs/THPOs on the exemption.
(4) Consultation with Indian tribes and Native Hawaiian organizations. If the exempted program or category of undertakings has the potential to affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe or Native Hawaiian organization, the Council shall follow the requirements for the agency official set forth in paragraph (f) of this section.
(5) Council review of proposed exemptions. The Council shall review an exemption proposal that is supported by documentation describing the program or category for which the exemption is sought, demonstrating that the criteria of paragraph (c)(1) of this section have been met, describing the methods used to seek the views of the public, and summarizing any views submitted by the SHPO/THPOs, the public, and any others consulted. Unless it requests further information, the Council shall approve or reject the proposed exemption within 30 days of receipt, and thereafter notify the relevant agency official and SHPO/THPOs of the decision. The decision shall be based on the consistency of the exemption with the purposes of the act, taking into consideration the magnitude of the exempted undertaking or program and the likelihood of impairment of historic properties in accordance with section 214 of the act.
(6) Legal consequences. Any undertaking that falls within an approved exempted program or category shall require no further review pursuant to subpart B of this part, unless the agency official or the Council determines that there are circumstances under which the normally excluded undertaking should be reviewed under subpart B of this part.
(7) Termination. The Council may terminate an exemption at the request of the agency official or when the Council determines that the exemption no longer meets the criteria of paragraph (c)(1) of this section. The Council shall notify the agency official 30 days before termination becomes effective.
(8) Notice. The proponent of the exemption shall publish notice of any approved exemption in the
(d) Standard treatments—(1) Establishment. The Council, on its own initiative or at the request of another party, may establish standard methods for the treatment of a category of historic properties, a category of undertakings, or a category of effects on historic properties to assist Federal agencies in satisfying the requirements of subpart B of this part. The Council shall publish notice of standard treatments in the
(2) Public participation. The Council shall arrange for public participation appropriate to the subject matter and the scope of the standard treatment and consistent with subpart A of this part. The Council shall consider the nature of the standard treatment and its likely effects on historic properties and the individuals, organizations and entities likely to be interested. Where an agency official has proposed a standard treatment, the Council may request the agency official to arrange for public involvement.
(3) Consultation with SHPOs/THPOs. The Council shall notify and consider the views of SHPOs/THPOs on the proposed standard treatment.
(4) Consultation with Indian tribes and Native Hawaiian organizations. If the proposed standard treatment has the potential to affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe or Native Hawaiian organization, the Council shall follow the requirements for the agency official set forth in paragraph (f) of this section.
(5) Termination. The Council may terminate a standard treatment by publication of a notice in the
(e) Program comments. An agency official may request the Council to comment on a category of undertakings in lieu of conducting individual reviews under §§ 800.4 through 800.6. The Council may provide program comments at its own initiative.
(1) Agency request. The agency official shall identify the category of undertakings, specify the likely effects on historic properties, specify the steps the agency official will take to ensure that the effects are taken into account, identify the time period for which the comment is requested and summarize any views submitted by the public.
(2) Public participation. The agency official shall arrange for public participation appropriate to the subject matter and the scope of the category and in accordance with the standards in subpart A of this part. The agency official shall consider the nature of the undertakings and their likely effects on historic properties and the individuals, organizations and entities likely to be interested.
(3) Consultation with SHPOs/THPOs. The Council shall notify and consider the views of SHPOs/THPOs on the proposed program comment.
(4) Consultation with Indian tribes and Native Hawaiian organizations. If the program comment has the potential to affect historic properties on tribal lands or historic properties of religious and cultural significance to an Indian tribe or Native Hawaiian organization, the Council shall follow the requirements for the agency official set forth in paragraph (f) of this section.
(5) Council action. Unless the Council requests additional documentation, notifies the agency official that it will decline to comment, or obtains the consent of the agency official to extend the period for providing comment, the Council shall comment to the agency official within 45 days of the request.
(i) If the Council comments, the agency official shall take into account the comments of the Council in carrying out the undertakings within the category and publish notice in the
(ii) If the Council declines to comment, the agency official shall continue to comply with the requirements of §§ 800.3 through 800.6 for the individual undertakings.
(6) Withdrawal of comment. If the Council determines that the consideration of historic properties is not being carried out in a manner consistent with the program comment, the Council may withdraw the comment and the agency official shall comply with the requirements of §§ 800.3 through 800.6 for the individual undertakings.
(f) Consultation with Indian tribes and Native Hawaiian organizations when developing program alternatives. Whenever an agency official proposes a program alternative pursuant to paragraphs (a) through (e) of this section, the agency official shall ensure that development of the program alternative includes appropriate government-to-government consultation with affected Indian tribes and consultation with affected Native Hawaiian organizations.
(1) Identifying affected Indian tribes and Native Hawaiian organizations. If any undertaking covered by a proposed program alternative has the potential to affect historic properties on tribal lands, the agency official shall identify and consult with the Indian tribes having jurisdiction over such lands. If a proposed program alternative has the potential to affect historic properties of religious and cultural significance to an Indian tribe or a Native Hawaiian organization which are located off tribal lands, the agency official shall identify those Indian tribes and Native Hawaiian organizations that might attach religious and cultural significance to such properties and consult with them. When a proposed program alternative has nationwide applicability, the agency official shall identify an appropriate government to government consultation with Indian tribes and consult with Native Hawaiian organizations in accordance with existing Executive orders, Presidential memoranda, and applicable provisions of law.
(2) Results of consultation. The agency official shall provide summaries of the views, along with copies of any written comments, provided by affected Indian tribes and Native Hawaiian organizations to the Council as part of the documentation for the proposed program alternative. The agency official and the Council shall take those views into account in reaching a final decision on the proposed program alternative.
§ 800.15 Tribal, State, and local program alternatives. [Reserved]
§ 800.16 Definitions.
(a) Act means the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470-470w-6.
(b) Agency means agency as defined in 5 U.S.C. 551.
(c) Approval of the expenditure of funds means any final agency decision authorizing or permitting the expenditure of Federal funds or financial assistance on an undertaking, including any agency decision that may be subject to an administrative appeal.
(d) Area of potential effects means the geographic area or areas within which an undertaking may directly or indirectly cause alterations in the character or use of historic properties, if any such properties exist. The area of potential effects is influenced by the scale and nature of an undertaking and may be different for different kinds of effects caused by the undertaking.
(e) Comment means the findings and recommendations of the Council formally provided in writing to the head of a Federal agency under section 106.
(f) Consultation means the process of seeking, discussing, and considering the views of other participants, and, where feasible, seeking agreement with them regarding matters arising in the section 106 process. The Secretary’s “Standards and Guidelines for Federal Agency Preservation Programs pursuant to the National Historic Preservation Act” provide further guidance on consultation.
(g) Council means the Advisory Council on Historic Preservation or a Council member or employee designated to act for the Council.
(h) Day or days means calendar days.
(i) Effect means alteration to the characteristics of a historic property qualifying it for inclusion in or eligibility for the National Register.
(j) Foreclosure means an action taken by an agency official that effectively precludes the Council from providing comments which the agency official can meaningfully consider prior to the approval of the undertaking.
(k) Head of the agency means the chief official of the Federal agency responsible for all aspects of the agency’s actions. If a State, local, or tribal government has assumed or has been delegated responsibility for section 106 compliance, the head of that unit of government shall be considered the head of the agency.
(l)(1) Historic property means any prehistoric or historic district, site, building, structure, or object included in, or eligible for inclusion in, the National Register of Historic Places maintained by the Secretary of the Interior. This term includes artifacts, records, and remains that are related to and located within such properties. The term includes properties of traditional religious and cultural importance to an Indian tribe or Native Hawaiian organization and that meet the National Register criteria.
(2) The term eligible for inclusion in the National Register includes both properties formally determined as such in accordance with regulations of the Secretary of the Interior and all other properties that meet the National Register criteria.
(m) Indian tribe means an Indian tribe, band, nation, or other organized group or community, including a native village, regional corporation, or village corporation, as those terms are defined in section 3 of the Alaska Native Claims Settlement Act (43 U.S.C. 1602), which is recognized as eligible for the special programs and services provided by the United States to Indians because of their status as Indians.
(n) Local government means a city, county, parish, township, municipality, borough, or other general purpose political subdivision of a State.
(o) Memorandum of agreement means the document that records the terms and conditions agreed upon to resolve the adverse effects of an undertaking upon historic properties.
(p) National Historic Landmark means a historic property that the Secretary of the Interior has designated a National Historic Landmark.
(q) National Register means the National Register of Historic Places maintained by the Secretary of the Interior.
(r) National Register criteria means the criteria established by the Secretary of the Interior for use in evaluating the eligibility of properties for the National Register (36 CFR part 60).
(s)(1) Native Hawaiian organization means any organization which serves and represents the interests of Native Hawaiians; has as a primary and stated purpose the provision of services to Native Hawaiians; and has demonstrated expertise in aspects of historic preservation that are significant to Native Hawaiians.
(2) Native Hawaiian means any individual who is a descendant of the aboriginal people who, prior to 1778, occupied and exercised sovereignty in the area that now constitutes the State of Hawaii.
(t) Programmatic agreement means a document that records the terms and conditions agreed upon to resolve the potential adverse effects of a Federal agency program, complex undertaking or other situations in accordance with § 800.14(b).
(u) Secretary means the Secretary of the Interior acting through the Director of the National Park Service except where otherwise specified.
(v) State Historic Preservation Officer (SHPO) means the official appointed or designated pursuant to section 101(b)(1) of the act to administer the State historic preservation program or a representative designated to act for the State historic preservation officer.
(w) Tribal Historic Preservation Officer (THPO) means the tribal official appointed by the tribe’s chief governing authority or designated by a tribal ordinance or preservation program who has assumed the responsibilities of the SHPO for purposes of section 106 compliance on tribal lands in accordance with section 101(d)(2) of the act.
(x) Tribal lands means all lands within the exterior boundaries of any Indian reservation and all dependent Indian communities.
(y) Undertaking means a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency, including those carried out by or on behalf of a Federal agency; those carried out with Federal financial assistance; and those requiring a Federal permit, license or approval.
(z) Senior policy official means the senior policy level official designated by the head of the agency pursuant to section 3(e) of Executive Order 13287.
Appendix A to Part 800—Criteria for Council Involvement in Reviewing Individual section 106 Cases
(a) Introduction. This appendix sets forth the criteria that will be used by the Council to determine whether to enter an individual section 106 review that it normally would not be involved in.
(b) General policy. The Council may choose to exercise its authorities under the section 106 regulations to participate in an individual project pursuant to the following criteria. However, the Council will not always elect to participate even though one or more of the criteria may be met.
(c) Specific criteria. The Council is likely to enter the section 106 process at the steps specified in the regulations in this part when an undertaking:
(1) Has substantial impacts on important historic properties. This may include adverse effects on properties that possess a national level of significance or on properties that are of unusual or noteworthy importance or are a rare property type; or adverse effects to large numbers of historic properties, such as impacts to multiple properties within a historic district.
(2) Presents important questions of policy or interpretation. This may include questions about how the Council’s regulations are being applied or interpreted, including possible foreclosure or anticipatory demolition situations; situations where the outcome will set a precedent affecting Council policies or program goals; or the development of programmatic agreements that alter the way the section 106 process is applied to a group or type of undertakings.
(3) Has the potential for presenting procedural problems. This may include cases with substantial public controversy that is related to historic preservation issues; with disputes among or about consulting parties which the Council’s involvement could help resolve; that are involved or likely to be involved in litigation on the basis of section 106; or carried out by a Federal agency, in a State or locality, or on tribal lands where the Council has previously identified problems with section 106 compliance pursuant to § 800.9(d)(2).
(4) Presents issues of concern to Indian tribes or Native Hawaiian organizations. This may include cases where there have been concerns raised about the identification of, evaluation of or assessment of effects on historic properties to which an Indian tribe or Native Hawaiian organization attaches religious and cultural significance; where an Indian tribe or Native Hawaiian organization has requested Council involvement to assist in the resolution of adverse effects; or where there are questions relating to policy, interpretation or precedent under section 106 or its relation to other authorities, such as the Native American Graves Protection and Repatriation Act.
PART 801—HISTORIC PRESERVATION REQUIREMENTS OF THE URBAN DEVELOPMENT ACTION GRANT PROGRAM
(a) These regulations are required by section 110(c) of the Housing and Community Development Act of 1980 (HCDA) (42 U.S.C. 5320) and apply only to projects proposed to be funded by the Department of Housing and Urban Development (HUD) under the Urban Development Action Grant (UDAG) Program authorized by title I of the Housing and Community Development Act of 1974, as amended (42 U.S.C. 5301). These regulations establish an expedited process for obtaining the comments of the Council specifically for the UDAG program and, except as specifically provided, substitute for the Council’s regulations for the “Protection of Historic and Cultural Properties” (36 CFR part 800).
(b) Section 110(c) of the HCDA of 1980 requires UDAG applicants to: (1) Identify all properties, if any, which are included in the National Register of Historic Places and which will be affected by the project for which the application is made; (2) identify all other properties, if any, which will be affected by such project and which, as determined by the applicant, may meet the Criteria established by the Secretary of the Interior for inclusion in the National Register (36 CFR 60.6); and (3) provide a description of the effect, as determined by the applicant, of the project on properties identified pursuant to (1) and (2). If the applicant determines that such properties are affected, the Act requires that the information developed by the applicant must be forwarded to the appropriate State Historic Preservation Officer (SHPO) for review and to the Secretary of the Interior for a determination as to whether the affected properties are eligible for inclusion in the National Register.
(c) Section 106 of the National Historic Preservation Act of 1966, as amended (16 U.S.C. 470), requires the head of any Federal agency with jurisdiction over a Federal, federally assisted or federally licensed undertaking that affects a property included in or eligible for inclusion in the National Register of Historic Places to take into account the effect of the undertaking on such property and afford the Council a reasonable opportunity to comment. Under the UDAG program, applicants assume the status of a Federal agency for purposes of complying with section 106.
§ 801.2 Definitions.
The terms defined in 36 CFR 800.2 shall be used in conjunction with this regulation. Furthermore, as used in these regulations:
(a) Urban Development Action Grant (UDAG) Program means the program of the Department of Housing and Urban Development (HUD) authorized by title I of the Housing and Community Development Act (HCDA) of 1977 (42 U.S.C. 5318) to assist revitalization efforts in distressed cities and urban counties which require increased public and private investment.
(b) Applicant means cities and urban counties or Pocket of Poverty Communities which meet the criteria at 24 CFR 570.453. Except as specifically provided below, applicants, rather than the Secretary of HUD, must comply with these regulations.
(c) Project means a commercial, industrial, and/or neighborhood project supported by the UDAG program of the Department of HUD, as defined in 24 CFR 570.451(g). A project includes the group of integrally related public and private activities described in the grant application which are to be carried out to meet the objectives of the action grant program and consists of all action grant funded activities together with all non-action grant funded activities. A project is an undertaking as defined in 36 CFR 800.2(c).
(d) State Historic Preservation Officer Review Period is a 45 day period provided to the appropriate State Historic Preservation Officer by section 110(c) of the Housing and Community Development Act (HCDA) of 1980 for comment on the formal submission by the applicant of data on properties listed in the National Register or which may meet the Criteria and which will be affected by the proposed UDAG project. This period does not include any period during which the applicant seeks information from the State Historic Preservation Officer to assist the applicant in identifying properties, determining whether a property meets the Criteria for listing in the National Register of Historic Places and determining whether such property is affected by the project.
(e) Secretary of the Interior Determination Period is a 45 day period provided by section 110(c) of the HCDA of 1980 for a determination as to whether the identified properties are eligible for inclusion in the National Register.
§ 801.3 Applicant responsibilities.
As early as possible before the applicant makes a final decision concerning a project and in any event prior to taking any action that would foreclose alternatives or the Council’s ability to comment, the applicant should take the following steps to comply with the requirements of section 106 of the National Historic Preservation Act and section 110 of the HCDA of 1980.
(a) Information required. It is the primary responsibility of the applicant requesting Council comments to conduct the appropriate studies and to provide the information necessary for a review of the effect a proposed project may have on a National Register property or a property which meets the Criteria, as well as the information necessary for adequate consideration of modifications or alterations to the proposed project that could avoid, mitigate, or minimize any adverse effects. It is the responsibility of the applicant to provide the information specified in § 801.7, to make an informed and reasonable evaluation of whether a property meets the National Register Criteria (36 CFR 60.6) and to determine the effect of a proposed undertaking on a National Register property or property which meets the Criteria.
(b) Identification of properties. Section 110 of the HCDA of 1980 makes UDAG applicants responsible for the identification of National Register properties and properties which may meet the Criteria for listing in the National Register that may be affected by the project. An appendix to these regulations sets forth guidance to applicants in meeting their identification responsibilities but does not set a fixed or inflexible standard for such efforts. Meeting this responsibility requires the applicant to make an earnest effort to identify and evaluate potentially affected historic properties by:
(1) Consulting the National Register of Historic Places to determine whether the project’s impact area includes such properties;
(2) Obtaining, prior to initiating the State Historic Preservation Officer Review Period, relevant information that the State Historic Preservation Officer may have available concerning historic properties, if any are known, in the project’s impact area;
(3) Utilizing local plans, surveys, and inventories of historic properties prepared by the locality or a recognized State or local historic authority;
(4) Utilizing other sources of information or advice the applicant deems appropriate;
(5) Conducting an on-the-ground inspection of the project’s impact area by qualified personnel to identify properties which may meet the Criteria for evaluation taking into consideration the views of the State Historic Preservation Officer as to the need for and methodology of such inspections;
(6) Applying the Department of the Interior Criteria for Evaluation (36 CFR 60.6) to properties within the project’s impact area.
(c) Evaluation of effect. Applicants are required by section 110(a) of the HCDA of 1980 to include in their applications a description of the effect of a proposed UDAG project on any National Register property and or any property which may meet the Criteria.
(1) Criteria of Effect and Adverse Effect. The following criteria, similar to those set forth in 36 CFR 800.3, shall be used to determine whether a project has an effect or an adverse effect.
(i) Criteria of effect. The effect of a project on a National Register or eligible property is evaluated in the context of the historical, architectural, archeological, or cultural significance possessed by the property. A project shall be considered to have an effect whenever any condition of the project causes or may cause any change, beneficial or adverse, in the quality of the historical, architectural, archeological, or cultural characteristics that qualify the property to meet the Criteria of the National Register. An effect occurs when a project changes the integrity of location, design, setting, materials, workmanship, feeling or association of the property that contributes to its significance in accordance with the National Register Criteria. An effect may be direct or indirect. Direct effects are caused by the project and occur at the same time and place. Indirect effects include those caused by the undertaking that are later in time or farther removed in distance, but are still reasonably foreseeable. Such effects involve development of the project site around historic properties so as to affect the access to, use of, or significance of those properties.
(ii) Criteria of adverse effect. Adverse effects on National Register properties or properties which meet the Criteria may occur under conditions which include but are not limited to:
(A) Destruction or alteration of all or part of a property;
(B) Isolation from or alteration of the property’s surrounding environment;
(C) Introduction of visual, audible, or atmospheric elements that are out of character with the property or alter its setting;
(D) Neglect of a property resulting in its deterioration or destruction;
(iii) Special considerations. If rehabilitation is a project activity, such components of the project may be considered to have no adverse effect and need not be referred to the Council if they are undertaken in accordance with the Secretary of the Interior’s Standards for Historic Preservation Projects (U.S. Department of the Interior, Heritage Conservation and Recreation Service, Washington, DC, 1979) and the State Historic Preservation Officer concurs in the proposed activity. Additionally, the following types of project components or elements will be considered to not normally adversely affect properties listed in the National Register or which meet the Criteria.
(A) Insulation (except for the use of granular or liquid injected foam insulation in exterior walls or other vertical surfaces);
(B) Caulking;
(C) Weatherstripping;
(D) Replacement of Heating, Ventilating and Air Conditioning (HVAC) equipment, provided that such equipment is not historic and that replacement equipment is screened from public view and that the State Historic Preservation Officer and the applicant agree the equipment will not affect those qualities of the property which qualify it to meet the 36 CFR 60.6 Criteria;
(E) In-kind refenestration (for example, replacement of deteriorated windows of a similar configuration, color and material);
(F) Lowering of ceilings, provided the ceilings will not be visible from outside of the building or from an interior public space and that the State Historic Preservation Officer and the applicant agree it will not affect a quality which qualified the building to meet the 36 CFR 60.6 Criteria;
(G) Replacement in-kind of substantially deteriorated material, provided that the State Historic Preservation Officer and the applicant agree;
(H) Installation of machinery, equipment, furnishings, fixtures, etc., in the interior of existing buildings, provided that the State Historic Preservation Officer and the applicant agree such installations will not affect a quality which qualified the building to meet the 36 CFR 60.6 Criteria.
(I) Site improvements such as sidewalk paving and landscaping, provided that the State Historic Preservation Officer and the applicant agree that the site improvement will not affect those qualities of the property which qualify it to meet the 36 CFR 60.6 Criteria.
(iv) Special considerations for archeological sites. Under certain conditions, alteration of land containing archeological resources in the project area may have no adverse effect on those resources. Procedures for determining whether such conditions exist were published by the Council in the
(2) Determinations of Effect. Prior to submitting an application to HUD, the applicant shall apply the Criteria of Effect and Adverse Effect to all properties which are listed in the National Register or which may meet the Criteria in the area of the project’s potential environmental impact. The determination of the Secretary of the Interior shall be final with respect to properties which are eligible for listing in the National Register. The Council will not comment on affected properties which are not either listed in or eligible for listing in the National Register. In order to facilitate the process, information to be requested from the State Historic Preservation Officer under § 801.3(b)(2) should include advice on applying the Criteria of Effect and Adverse Effect provided that this period shall not be included in the 45 day State Historic Preservation Officer Review Period. Special attention should be paid to indirect effects, such as changes in land use, traffic patterns, street activity, population density and growth rate. While some aspects of a project may have little potential to adversely affect the significant qualities of a historic property, other project components may meet the Criteria of Effect and Adverse Effect. If any aspect of the project results in an effect determination, further evaluation of the effect shall be undertaken in accordance with these regulations. The resulting determination regarding the effect shall be included in the application.
(i) No effect. If the applicant determines that the project will have no effect on any National Register property and/or property which meets the Criteria, the project requires no further review by the Council unless a timely objection is made by the Executive Director. An objection may be made by the Executive Director at any time during the UDAG application process prior to the expiration of the period for receiving objections to HUD’s release of funds as specified in 24 CFR 58.31. The manner in which the Executive Director shall make an objection is set forth in § 801.4(a).
(ii) Determinations of no adverse effect. If the applicant finds there is an effect on the property but it is not adverse, the applicant after receiving the comments of the State Historic Preservation Officer during the State Historic Preservation Officer Review Period shall forward adequate documentation (see § 801.7(a)) of the Determination, including the written comments of the State Historic Preservation Officer, if available, to the Executive Director for review in accordance with § 801.4.
(iii) Adverse effect determination. If the applicant finds the effect to be adverse or if the Executive Director objects to an applicant’s no adverse effect determination pursuant to § 801.4(a), the applicant shall proceed with the consultation process in accordance with § 801.4(b).
§ 801.4 Council comments.
The following subsections specify how the Council will respond to an applicant’s request for the Council’s comments required to satisfy the applicant’s responsibilities under section 106 of the Act and section 110 of the HCDA of 1980. When appropriate, an applicant may waive the Council time periods specified in these regulations.
(a) Executive Director’s Objection to No Effect Determination. If the Executive Director has reason to question an applicant’s determination of no effect, he shall notify the applicant and HUD. If the Executive Director does not object within 15 days of such notification, the project may proceed. If the Executive Director objects, he shall specify whether or not the project will have an adverse effect on National Register property and/or property which meets the Criteria. Normally, the Executive Director will object to a determination of no effect when the record does not support the applicant’s determination (see § 801.7(a)). The applicant must then comply with the provisions of subsection (b) if the Executive Director determines that the project will have no adverse effect or subsection (c) if the Executive Director has determined that the project will have an adverse effect.
(b) Response to Determinations of No Adverse Effect. (1) Upon receipt of a Determination of No Adverse Effect from an applicant, the Executive Director will review the Determination and supporting documentation required by § 801.7(a). Failure to provide the required information at the time the applicant requests Council comments will delay the process. The Executive Director will respond to the applicant within 15 days after receipt of the information required in § 801.7(a). Unless the Executive Director objects to the Determination within 15 days after receipt, the applicant will be considered to have satisfied its responsibilities under section 106 of the Act and these regulations and no further Council review is required.
(2) If the Executive Director objects to a Determination of No Adverse Effect, the consultation process pursuant to § 801.4(c) shall be initiated.
(c) Consultation process. If any aspect of the project is found to have adverse effects on National Register property or property which has been determined by the applicant or the Secretary of the Interior to meet the Criteria, the applicant, the State Historic Preservation Officer and the Executive Director shall consult to consider feasible and prudent alternatives to the project that could avoid, mitigate, or minimize the adverse effect on the affected property.
(1) Parties. The applicant, the State Historic Preservation Officer and the Executive Director shall be the consulting parties. The Department of HUD, other representatives of national, State, or local units of government, other parties in interest, and public and private organizations, may be invited by the consulting parties to participate in the consultation process.
(2) Timing. The consulting parties shall have a total of 45 days from the receipt by the Executive Director of the information required in § 801.7(a) to agree upon feasible and prudent alternatives to avoid, mitigate, or minimize any adverse effects of the project. Failure of an applicant to provide the information required in § 801.7(b) will delay the beginning of the time period specified above.
(3) Information requirements. The applicant shall provide copies of the information required in § 801.7(b) to the consulting parties at the initiation of the consultation process and make it readily available for public inspection.
(4) Public meeting. An onsite inspection and a Public Information Meeting may be held in accordance with the provisions of 36 CFR 800.6(b). Public hearings or meetings conducted by the applicant in the preparation of the application may, as specified below, substitute for such Public Information Meetings. Upon request of the applicant, the Executive Director may find that such public meetings have been adequate to consider the effect of the project on National Register properties or properties which meet the Criteria, and no further Public Information Meeting is required.
(5) Consideration of alternatives. During the consultation period, the consulting parties shall, in accordance with the policies set forth in 36 CFR 800.6(b) (4) and (5), review the proposed project to determine whether there are prudent and feasible alternatives to avoid or satisfactorily mitigate adverse effect. If they agree on such alternatives, they shall execute a Memorandum of Agreement in accordance with § 801.4(c) specifying how the undertaking will proceed to avoid or mitigate the adverse effect.
(6) Acceptance of adverse effect. If the consulting parties determine that there are no feasible and prudent alternatives that could avoid or satisfactorily mitigate the adverse effects and agree that it is in the public interest to proceed with the proposed project they shall execute a Memorandum of Agreement in accordance with § 801.4(c) acknowledging this determination and specifying any recording, salvage, or other measures associated with acceptance of the adverse effects that shall be taken before the project proceeds.
(7) Failure to agree. Upon the failure of the consulting parties to agree upon the terms for a Memorandum of Agreement within the specified time period, or upon notice of a failure to agree by any consulting party to the Executive Director, the Executive Director within 15 days shall recommend to the Chairman whether the matter should be scheduled for consideration at a Council meeting. If the Executive Director recommends that the Council not consider the matter, he shall simultaneously notify all Council members and provide them copies of the preliminary case report and the recommendation to the Chairman. The applicant and the State Historic Preservation Officer shall be notified in writing of the Executive Director’s recommendation.
(d) Memorandum of Agreement—(1) Preparation of Memorandum of Agreement. It shall be the responsibility of the Executive Director to prepare each Memorandum of Agreement required under this part. As appropriate, other parties may be invited by the consulting parties to be signatories to the Agreement or otherwise indicate their concurrence with the Agreement. In order to facilitate the process, the applicant may provide the Executive Director a draft for a Memorandum of Agreement. At the applicant’s option, such draft may be prepared at the time the applicant makes its determinations that properties listed in the National Register or which may meet the Criteria for listing in the National Register may be adversely affected. The applicant must provide the State Historic Preservation Officer an opportunity to concur in or comment on its draft Agreement.
(2) Review of Memorandum of Agreement. Upon receipt of an executed Memorandum of Agreement, the Chairman shall institute a 15 day review period. Unless the Chairman notifies the applicant that the matter has been placed on the agenda for consideration at a Council meeting, the Agreement shall become final when ratified by the Chairman or upon the expiration of the 15 day review period with no action taken. Copies will be provided to signatories. A copy of the Memorandum of Agreement should be included in any Environmental Assessment or Environmental Impact Statement prepared pursuant to the National Environmental Policy Act.
(3) Effect of Memorandum of Agreement. (i) Agreements duly executed in accordance with these regulations shall constitute the comments of the Council and shall evidence satisfaction of the applicant’s responsibilities for the proposed project under section 106 of the Act and these regulations.
(ii) If the Council has commented on an application that is not approved by HUD and a subsequent UDAG application is made for the same project, the project need not be referred to the Council again unless there is a significant amendment to the project which would alter the effect of the project on previously considered properties or result in effects on additional National Register properties or properties which meet the Criteria.
(iii) Failure to carry out the terms of a Memorandum of Agreement requires that the applicant again request the Council’s comments in accordance with these regulations. In such instances, until the Council issues its comments under these regulations the applicant shall not take or sanction any action or make any irreversible or irretrievable commitment that could result in an adverse effect with respect to National Register properties or properties which are eligible for inclusion in the National Register covered by the Agreement or that would foreclose the Council’s consideration of modifications or alternatives to the proposed project that could avoid or mitigate the adverse effect.
(4) Amendment of a Memorandum of Agreement. Amendments to the Agreement may be made as specified in 36 CFR 800.6(c)(4).
(5) Report on Memorandum of Agreement. Within 90 days after carrying out the terms of the Agreement, the applicant shall report to all signatories on the actions taken.
(e) Council Meetings. Council meetings to consider a project will be conducted in accordance with the policies set forth in 36 CFR 800.6(d).
(1) Response to recommendation concerning consideration at Council meeting. Upon receipt of a recommendation from the Executive Director concerning consideration of a proposed project at a Council meeting, the Chairman shall determine whether or not the project will be considered. The Chairman shall make a decision within 15 days of receipt of the recommendation of the Executive Director. In reaching a decision the Chairman shall consider any comments from Council members. If three members of the Council object within the 15 day period to the Executive Director’s recommendation, the project shall be scheduled for consideration at a Council or panel meeting. Unless the matter is scheduled for consideration by the Council the Chairman shall notify the applicant, the Department of HUD, the State Historic Preservation Officer and other parties known to be interested of the decision not to consider the matter. Such notice shall be evidence of satisfaction of the applicant’s responsibilities for the proposed project under section 106 of the Act and these regulations.
(2) Decision to consider the project. When the Council will consider a proposed project at a meeting, the Chairman shall either designate five members as a panel to hear the matter on behalf of the full Council or schedule the matter for consideration by the full Council. In either case, the meeting shall take place within 30 days of the Chairman’s decision to consider the project, unless the applicant agrees to a longer time.
(i) A panel shall consist of three non-Federal members, one as Chairman, and two Federal members. The Department of HUD may not be a member of such panel.
(ii) Prior to any panel or full Council consideration of a matter, the Chairman will notify the applicant and the State Historic Preservation Officer and other interested parties of the date on which the project will be considered. The Executive Director, the applicant, the Department of HUD, and the State Historic Preservation Officer shall prepare reports in accordance with § 801.7(b). Reports from the applicant and the State Historic Preservation Officer must be received by the Executive Director at least 7 days before any meeting.
(3) Notice of Council meetings. At least 7 days notice of all meetings held pursuant to this section shall be given by publication in the
(4) Statements to the Council. An agenda shall provide for oral statements from the Executive Director; the applicant; the Department of HUD; parties in interest; the Secretary of the Interior; the State Historic Preservation Officer; representatives of national, State, or local units of government; and interested public and private organizations and individuals. Parties wishing to make oral remarks should notify the Executive Director at least two days in advance of the meeting. Parties wishing to have their written statements distributed to Council members prior to the meeting should send copies of the statements to the Executive Director at least 5 days in advance.
(5) Comments of the Council. The written comments of the Council will be issued within 7 days after a meeting. Comments by a panel shall be considered the comments of the full Council. Comments shall be made to the applicant requesting comment and to the Department of HUD. Immediately after the comments are made to the applicant and the Department of HUD, the comments of the Council will be forwarded to the President and the Congress as a special report under authority of section 202(b) of the Act and a notice of availability will be published in the
(6) Action in response to Council comments. The comments of the Council shall be taken into account in reaching a final decision on the proposed project. When a final decision regarding the proposed project is reached by the applicant and the Department of HUD, they shall submit written reports to the Council describing the actions taken by them and other parties in response to the Council’s comments and the impact that such actions will have on the affected National Register properties or properties eligible for inclusion in the National Register. Receipt of this report by the Chairman shall be evidence that the applicant has satisfied its responsibilities for the proposed project under section 106 of the Act and these regulations. The Council may issue a final report to the President and the Congress under authority of section 202(b) of the Act describing the actions taken in response to the Council’s comments including recommendations for changes in Federal policy and programs, as appropriate.
(f) Suspense of Action. Until the Council issues its comments under these regulations and during the State Historic Preservation Officer Review Period and the determination period of the Secretary of the Interior, good faith consultation shall preclude the applicant from taking or sanctioning any action or making any irreversible or irretrievable commitment that could result in an adverse effect on a National Register property or property which may meet the Criteria or that would foreclose the consideration of modifications or alternatives to the proposed project that could avoid, mitigate, or minimize such adverse effects. In no case shall UDAG funds be used for physical activities on the project site until the Council comments have been completed. Normal planning and processing of applications short of actual commitment of funds to the project may proceed.
(g) Lead Agency. If the project proposed by the applicant involves one or more Federal agencies, they may agree on a single lead agency to meet the requirements of section 106 of the National Historic Preservation Act and section 110 of the Housing and Community Development Act of 1980 and notify the Executive Director. If the applicant is the designated lead agency, these regulations shall be followed. If a Federal agency is designated lead agency, the process in 36 CFR part 800 shall be used.
(h) Compliance by a Federal Agency. An applicant may make a finding that it proposes to accept a Federal agency’s compliance with section 106 of the Act and 36 CFR 800 where its review of the Federal agency’s findings indicate that:
(1) The project is identical with an undertaking reviewed by the Council under 36 CFR part 800; and
(2) The project and its impacts are included within the area of potential environmental impact described by the Federal agency;
§ 801.5 State Historic Preservation Officer responsibilities.
(a) The State Historic Preservation Officer shall have standing to participate in the review process established by section 110(c) of the HCDA of 1980 whenever it concerns a project located within the State Historic Preservation Officer’s jurisdiction by the following means: providing, within 30 days, information requested by an applicant under § 801.3(b); responding, within 45 days, to submittal of a determination by the applicant under section 110 of the HCDA of 1980 that National Register property or property which meets the Criteria may be affected by the proposed project; participating in a Memorandum of Agreement that the applicant or the Executive Director may prepare under this part; and participating in a panel or full Council meeting that may be held pursuant to these regulations. Pursuant to section 110(c) of the HCDA of 1980, the State Historic Preservation Officer has a maximum period of 45 days in which to formally comment on an applicant’s determination that the project may affect a property that is listed in the National Register or which may meet the Criteria for listing in the National Register. This period does not include the time during which the applicant seeks information from the State Historic Preservation Officer for determining whether a property meets the Criteria for listing in the National Register and whether such property is affected by the project.
(b) The failure of a State Historic Preservation Officer to participate in any required steps of the process set forth in this part shall not prohibit the Executive Director and the applicant from concluding the section 106 process, including the execution of a Memorandum of Agreement.
§ 801.6 Coordination with requirements under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ).
The National Historic Preservation Act and the National Environmental Policy Act create separate and distinct responsibilities. The National Historic Preservation Act applies to those aspects of a project which may affect National Register properties and those which are eligible for listing in the National Register. The requirements for the National Environmental Policy Act apply to the effect that the project will have on the human environment. To the extent that the applicant finds it practicable to do so, the requirements of these two statutes should be integrated. Some projects, for reasons other than the effects on historic properties, may require an Environmental Impact Statement (EIS) subject to the time requirements for a draft and final EIS, in which case the applicant may choose to separately relate to the State Historic Preservation Officer, the Department of the Interior, and the Council for purposes of section 110(c) of the HCDA of 1980. In that event, information in the draft EIS should indicate that compliance with section 106 and these regulations is underway and the final EIS should reflect the results of this process. Applicants are directed to 36 CFR 800.9, which describes in detail the manner in which the requirements of these two acts should be integrated and applies to all UDAG applicants under these regulations.
§ 801.7 Information requirements.
(a) Information To Be Retained by Applicants Determining No Effect. (1) Recommended Documentation for a Determination of No Effect. Adequate documentation of a Determination of No Effect pursuant to § 801.3(c)(2)(i) should include the following:
(i) A general discussion and chronology of the proposed project;
(ii) A description of the proposed project including, as appropriate, photographs, maps, drawings, and specifications;
(iii) A statement that no National Register property or property which meets the Criteria exist in the project area, or a brief statement explaining why the Criteria of Effect (See § 801.3(c)) was found inapplicable;
(iv) Evidence of consultation with the State Historic Preservation Officer concerning the Determination of No Effect; and
(v) Evidence of efforts to inform the public concerning the Determination of No Effect.
(2) The information requirements set forth in this section are meant to serve as guidance for applicants in preparing No Effect Determinations. The information should be retained by the applicant, incorporated into any environmental reports or documents prepared concerning the project, and provided to the Executive Director only in the event of an objection to the applicant’s determination.
(b) Reports to the Council. In order to adequately assess the impact of a proposed project on National Register and eligible properties, it is necessary for the Council to be provided certain information. For the purposes of developing Council comments on UDAG projects the following information is required. Generally, to the extent that relevant portions of a UDAG application meet the requirements set forth below it will be sufficient for the purposes of Council review and comment.
(1) Documentation for Determination of No Adverse Effect. Adequate documentation of a Determination of No Adverse Effect pursuant to § 801.3(c)(1) should include the following:
(i) A general discussion and chronology of the proposed project;
(ii) A description of the proposed project including, as appropriate, photographs, maps, drawings and specifications;
(iii) A copy of the National Register form or a copy of the Determination of Eligibility documentation for each property that will be affected by the project including a description of each property’s physical appearance and significance;
(iv) A brief statement explaining why each of the Criteria of Adverse Effect (See § 801.3(c)(1)) was found inapplicable;
(v) Written views of the State Historic Preservation Officer concerning the Determination of No Adverse Effect, if available; and,
(vi) An estimate of the cost of the project including the amount of the UDAG grant and a description of any other Federal involvement.
(2) Preliminary Case Reports. Preliminary Case Reports should be submitted with a request for comments pursuant to § 801.4(b) and should include the following information:
(i) A general discussion and chronology of the proposed project;
(ii) The status of the project in the HUD approval process:
(iii) The status of the project in the National Environmental Policy Act compliance process and the target date for completion of all the applicant’s environmental responsibilities;
(iv) A description of the proposed project including as appropriate, photographs, maps, drawings and specifications;
(v) A copy of the National Register form or a copy of the Determination of Eligibility documentation for each property that will be affected by the project including a description of each property’s physical appearance and significance;
(vi) A brief statement explaining why any of the Criteria of Adverse Effect (See § 801.3(c)(1)(b)) apply;
(vii) Written views of the State Historic Preservation Officer concerning the effect on the property, if available;
(viii) The views of Federal agencies, State and local governments, and other groups or individuals when known as obtained through the OMB Circular A-95 process or the environmental review process, public hearings or other applicant processes;
(ix) A description and analysis of alternatives that would avoid the adverse effects;
(x) A description and analysis of alternatives that would mitigate the adverse effects; and,
(xi) An estimate of the cost of the project including the amount of the UDAG grant and a description of any other Federal involvement.
(c) Reports for Council Meetings. Consideration of a proposed project by the full Council or a panel pursuant to § 801.4(b) is based upon reports from the Executive Director, the State Historic Preservation Officer and Secretary of the Interior. Requirements for these reports are specified in 36 CFR 800.13(c). Additionally, reports from the applicant and the Department of HUD are required by these regulations. The requirements for these reports consist of the following:
(1) Report of the Applicant. The report from the applicant requesting comments shall include a copy of the relevant portions of the UDAG application; a general discussion and chronology of the proposed project; an account of the steps taken to comply with the National Environmental Policy Act (NEPA); any relevant supporting documentation in studies that the applicant has completed; an evaluation of the effect of the project upon the property or properties, with particular reference to the impact on the historical, architectural, archeological, and cultural values; steps taken or proposed by the applicant to avoid or mitigate adverse effects of the project; a thorough discussion of alternate courses of action; and an analysis comparing the advantages resulting from the project with the disadvantages resulting from the adverse effects on National Register or eligible properties.
(2) Report of the Secretary of Housing and Urban Development. The report from the Secretary shall include the status of the application in the UDAG approval process, past involvement of the Department with the applicant and the proposed project or land area for the proposed project, and information on how the applicant has met other requirements of the Department for the proposed project.
§ 801.8 Public participation.
(a) The Council encourages maximum public participation in the process established by these regulations. Particularly important, with respect to the UDAG program, is participation by the citizens of neighborhoods directly or indirectly affected by projects, and by groups concerned with historic and cultural preservation.
(b) The applicant, in preparing and following its citizen participation plan called for by 24 CFR 570.456(c)(11)(i)(A), should ensure that adequate provision is made for participation by citizens and organizations having interests in historic preservation and in the historic and cultural values represented in affected neighborhoods. 24 CFR 570.431(c) sets forth criteria for citizen participation plans. These should be carefully considered with specific reference to ensuring that local concerns relevant to historic preservation are fully identified, and that citizens are provided with full and accurate information about each project and its effects on historic properties. The applicant should ensure that potentially concerned citizens and organizations are fully involved in the identification of properties which may meet the National Register Criteria, and that they are fully informed, in a timely manner, of determinations of No Effect, No Adverse Effect, and Adverse Effect, and of the progress of the consultation process. Applicants are referred to 36 CFR 800.15 for Council guidelines for public participation.
(c) The Council welcomes the views of the public, especially those groups which may be affected by the proposed project, during its evaluation of the applicant’s determination of effect, and will solicit the participation of the public in Council and panel meetings held to consider projects.
Appendix 1 to Part 801—Identification of Properties: General
Because of the high probability of locating properties which are listed in the National Register or which meet the Criteria for listing in many older city downtowns, this appendix is designed to serve as guidance for UDAG applicants in identifying such properties. This appendix sets forth guidance for applicants and does not set a fixed or inflexible standard for identification efforts.
In any effort to locate National Register properties or properties which meet the Criteria, the State Historic Preservation Officer is a key source of information and advice. The State Historic Preservation Officer will be of vital assistance to the applicant. The State Historic Preservation Officer can provide information on known properties and on studies which have taken place in and around the project area. Early contact should be made with the State Historic Preservation Officer for recommendations about how to identify historic properties. For UDAG projects, identification of National Register properties and properties which meet the Criteria is the responsibility of the applicant. The extent of the identification effort should be made with the advice of the State Historic Preservation Officer. The State Historic Preservation Officer can be a knowledgeable source of information regarding cases wherein the need for a survey of historic properties is appropriate, recommended type and method of a survey and the boundaries of any such survey. Due consideration should be given to the nature of the project and its impacts, the likelihood of historic properties being affected and the state of existing knowledge regarding historic properties in the area of the project’s potential environmental impact.
1. The area of the project’s potential environmental impact consists of two distinct subareas: that which will be disturbed directly (generally the construction site and its immediate environs) and that which will experience indirect effects. Within the area of indirect impact, impacts will be induced as a result of carrying the project out. Historic and cultural properties subject to effect must be identified in both subareas, and the level of effort necessary in each may vary. The level of effort needed is also affected by the stage of planning and the quality of pre-existing information. Obviously, if the area of potential environmental impact has already been fully and intensively studied before project planning begins, there is no need to duplicate this effort. The State Historic Preservation Officer should be contacted for information on previous studies. If the area has not been previously intensively studied, identification efforts generally fall into three levels:
a. Overview Study: This level of study is normally conducted as a part of general planning and is useful at an early stage in project formulation. It is designed to obtain a general understanding of an area’s historic and cultural properties in consultation with the State Historic Preservation Officer, by:
(1) Assessing the extent to which the area has been previously subjected to study;
(2) Locating properties previously recorded;
(3) Assessing the probability that properties eligible for the National Register will be found if the area is closely inspected, and
(4) Determining the need, if any, for further investigation.
b. Identification Study: An identification study attempts to specifically identify and record all properties in an area that may meet the criteria for listing in the National Register. In conducting the study, the applicant should seek the advice of the State Historic Preservation Officer regarding pertinent background data. A thorough on-the-ground inspection of the subject area by qualified personnel should be undertaken. For very large areas, or areas with uncertain boundaries, such a study may focus on representative sample areas, from which generalizations may be made about the whole.
c. Definition and Evaluation Study: If an overview and/or an identification study have indicated the presence or probable presence of properties that may meet the National Register Criteria but has not documented them sufficiently to allow a determination to be made about their eligibility, a definition and evaluation study is necessary. Such a study is directed at specific potentially eligible properties or at areas known or suspected to contain such properties. It includes an intensive on-the-ground inspection and related studies as necessary, conducted by qualified personnel, and provides sufficient information to apply the National Register’s “Criteria for Evaluation” (36 CFR 60.6).
2. An overview study will normally be needed to provide basic information for planning in the area of potential environmental impact. Unless this study indicates clearly that no further identification efforts are needed (e.g., by demonstrating that the entire area has already been intensively inspected with negative results, or by demonstrating that no potentially significant buildings have ever been built there and there is virtually no potential for archeological resources), and identification study will probably be needed within the area of potential environmental impact. This study may show that there are no potentially eligible properties within the area, or may show that only a few such properties exist and document them sufficiently to permit a determination of eligibility to be made in accordance with 36 CFR part 60. Alternatively, the study may indicate that potentially eligible properties exist in the area, but may not document them to the standards of 36 CFR part 60. Should this occur, a definition and evaluation study is necessary for those properties falling within the project’s area of direct effect and for those properties subject to indirect effects. If a property falls within the general area of indirect effect, but no indirect effects are actually anticipated on the property in question, a definition and evaluation study will normally be superfluous.
Appendix 2 to Part 801—Special Procedures for Identification and Consideration of Archeological Properties in an Urban Context
A. Archeological sites in urban contexts are often difficult to identify and evaluate in advance of construction because they are sealed beneath modern buildings and structures. Prehistoric and historic sites within cities may be important both to science and to an understanding of each city’s history, however, and should be considered in project planning. Special methods can be used to ensure effective and efficient consideration and treatment of archeological sites in UDAG projects.
1. If it is not practical to physically determine the existence or nonexistence of archeological sites in the project area, the probability or improbability of their existence can be determined, in most cases, through study of:
a. Information on the pre-urban natural environment, which would have had an effect on the location of prehistoric sites;
b. Information from surrounding areas and general literature concerning the location of prehistoric sites;
c. State and local historic property registers or inventories;
d. Archeological survey reports;
e. Historic maps, atlases, tax records, photographs, and other sources of information on the locations of earlier structures;
f. Information on discoveries of prehistoric or historic material during previous construction, land levelling, or excavation, and
g. Some minor on-the-ground inspection.
2. Should the study of sources such as those listed in section (1)(a) above reveal that the following conditions exist, it should be concluded that a significant likelihood exists that archeological sites which meet the National Register Criteria exist on the project site:
a. Discoveries of prehistoric or historic material remains have been reliably reported on or immediately adjacent to the project site, and these are determined by the State Historic Preservation Officer or other archeological authority to meet the Criteria for the National Register because of their potential value for public interpretation or the study of significant scientific or historical research problems; or
b. Historical or ethnographic data, or discoveries of material, indicate that a property of potential cultural value to the community or some segment of the community (e.g., a cemetery) lies or lay within the project site; or
c. The pre-urbanization environment of the project site would have been conducive to prehistoric occupation, or historic buildings or occupation sites are documented to have existed within the project site in earlier times, and such sites or buildings are determined by the State Historic Preservation Officer or other archeological authority to meet the Criteria of the National Register because of their potential value for public interpretation or the study of significant scientific or historical research questions, and
d. The recent history of the project site has not included extensive and intensive ground disturbance (grading, blasting, cellar digging, etc.) in the location, or extending to the depth at which the remains of significant sites, buildings, or other features would be expected.
B. Where review of sources of information such as those listed in section (1)(a) above reveals no significant likelihood that archeological resources which meet the National Register Criteria exist on the project site, no further review is required with respect to archeology provided the State Historic Preservation Officer concurs.
C. Where review of sources of information such as those listed in section (1)(a) above, reveals that archeological resources which meet the National Register Criteria are likely to exist on the project site, but these resources are so deeply buried that the project will not intrude upon them, or they are in a portion of the project site that will not be disturbed, a determination of “No Effect” is appropriate in accordance with § 801.3(c)(2)(i).
D. Where review of sources of information such as those listed in section (1)(a) above, reveals that archeological resources which meet the Criteria exist or are likely to exist on the project site, and that the project is likely to disturb them, a determination of “No Adverse Effect” may be made in accordance with § 801.3(c)(2)(ii) if:
1. The applicant and/or developer is committed to fund a professionally supervised and planned pre-construction testing program, and to modification of the project in consultation with the State Historic Preservation Officer to protect or incorporate within the project the archeological resources discovered with a minimum of damage to them, or if:
2. The applicant and/or developer is committed to fund a professionally supervised and planned archeological salvage program, coordinated with site clearing and construction, following the standards of the Secretary of the Interior issued pursuant to the Archeological and Historic Preservation Act (16 U.S.C. 469) and the applicant finds that this program negates the adverse effect, in accordance with the standards set forth in section X of the Council’s “Supplementary Guidance for Review of Proposals for Treatment of Archeological Properties” (45 FR 78808).
E. When archeological sites included in the National Register or which meet the Criteria are found to exist on the project site or in the area of the project’s environmental impact, and where the project is likely to disturb such resources, and where the adverse effect of such disturbance cannot be negated by archeological salvage, a determination of “Adverse Effect” is appropriate in accordance with § 801.3(a)(2)(iii).
PART 805—PROCEDURES FOR IMPLEMENTATION OF NATIONAL ENVIRONMENTAL POLICY ACT
§ 805.1 Background.
(a) The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.) establishes national policies and goals for the protection of the environment. Section 102(2) of NEPA contains certain procedural requirements directed toward the attainment of such goals. In particular, all Federal agencies are required to give appropriate consideration to the environmental effects of their proposed actions in their decisionmaking and to prepare detailed environmental statements on recommendations or reports on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment.
(b) Executive Order 11991 of May 24, 1977, directed the Council on Environmental Quality (CEQ) to issue regulations to implement the procedural provisions of NEPA. Accordingly, CEQ issued final NEPA regulations (40 CFR parts 1500-1508) on November 29, 1978, which are binding on all Federal agencies as of July 30, 1979. These regulations provide that each Federal agency shall as necessary adopt implementing procedures to supplement the regulations. Section 1507.3(b) of the NEPA regulations identifies those sections of the regulations which must be addressed in agency procedures.
§ 805.2 Purpose.
The purpose of this part is to establish Council procedures that supplement the NEPA regulations and provide for the implementation of those provisions identified in § 1507.3(b) of the regulations (40 CFR 1507.3(b)).
§ 805.3 Applicability.
(a) These procedures apply to actions of the full Council and the Council staff acting on behalf of the full Council.
(b) The following actions are covered by these procedures:
(1) Recommendations for legislation.
(2) Regulations implementing section 106 of the National Historic Preservation Act (NHPA).
(3) Procedures implementing other authorities.
(4) Policy recommendations that do not require implementation by another Federal agency.
(c) In accordance with § 1508.4 of the NEPA regulations (40 CFR 1508.4), Council comments on Federal, federally assisted and federally licensed undertakings provided pursuant to section 106 of the NHPA and 36 CFR part 800 are categorically excluded from these procedures. This exclusion is justified because Federal agencies seeking the Council’s comments under section 106 have the responsibility for complying with NEPA on the action they propose. The Council’s role is advisory and its comments are to be considered in the agency decisionmaking process. Coordination between the section 106 and the NEPA processes is set forth in 36 CFR 800.9.
§ 805.4 Ensuring environmental documents are actually considered in Council decisionmaking.
(a) Section 1505.1 of the NEPA regulations (40 CFR 1505.1) contains requirements to ensure adequate consideration of environmental documents in agency decisionmaking. To implement these requirements the Council shall:
(1) Consider all relevant environmental documents in evaluating proposals for action;
(2) Ensure that all relevant environmental documents, comments, and responses accompany the proposal through internal Council review processes;
(3) Consider only those alternatives encompassed by the range of alternatives discussed in the relevant environmental documents when evaluating proposals for the Council action; and,
(4) Where an environmental impact statement (EIS) has been prepared consider the specific alternative analyzed in the EIS when evaluating the proposal which is the subject of the EIS.
(b) For each of the Council’s principal activities covered by NEPA, the following chart identifies the point at which the NEPA process begins, the point at which it ends, and the key officials required to consider environmental documents in their decisionmaking.
| Activity | Start of NEPA process | Completion of NEPA process | Key officials required to consider environmental documents |
|---|---|---|---|
| Recommendations for legislation | During staff formulation of proposal | Prior to submission to Congress or OMB | Executive Director and full Council, as appropriate. |
| Regulations and procedures | Prior to publication of draft regulations in | Prior to publication of final regulations in | Executive Director and full Council as appropriate. |
| Policy recommendations | During staff formulation of proposal | Prior to adoption by full Council or Executive Director | Executive Director and full Council, as appropriate. |
§ 805.5 Typical classes of action.
(a) Section 1507.3(c)(2) (40 CFR 1507.3(c)(2)) in conjunction with § 1508.4 requires agencies to establish three typical classes of action for similar treatment under NEPA: actions normally requiring EIS; actions normally requiring assessments but not necessarily EISs; and actions normally not requiring assessments or EISs. Each of the covered categories of Council actions generally falls within the second category, normally requiring an assessment but not necessarily an EIS.
(b) The Council shall independently determine whether an EIS or an environmental assessment is required where:
(1) A proposal for Council action is not covered by one of the typical classes of action above; or
(2) For actions which are covered, the presence of extraordinary circumstances indicates that some other level of environmental review may be appropriate.
§ 805.6 Interagency cooperation.
The Council shall consult with appropriate Federal and non-Federal agencies and with interested private persons and organizations when it is considering actions involving such parties and requiring environmental assessments. Where other Federal agencies are involved in the proposed action, the Council shall cooperate in the required environmental assessment and the preparation of necessary environmental documents. Where appropriate as determined by the nature and extent of Council involvement in the proposed action, the Council shall assume the status of lead agency.
§ 805.7 Environmental information.
Interested persons may contact the Executive Director for information regarding the Council’s compliance with NEPA.
PART 810—FREEDOM OF INFORMATION ACT REGULATIONS
§ 810.1 Purpose and scope.
This subpart contains the regulations of the Advisory Council on Historic Preservation implementing the Freedom of Information Act (5 U.S.C. 552). Procedures for obtaining the records covered by the Act are established in these regulations. Persons seeking information or records of the Council are encouraged to consult first with the staff of the Council before filing a formal request under the Act pursuant to these regulations. The informal exchange of information is encouraged wherever possible.
§ 810.2 Procedure for requesting information.
(a) Requests for information or records not available through informal channels shall be directed to the Administrative Officer, Advisory Council on Historic Preservation, 1522 K Street NW., Washington, DC 20005. All such requests should be clearly marked “FREEDOM OF INFORMATION REQUEST” in order to ensure timely processing. Requests that are not so marked will be honored, but will be deemed not to have been received by the Council, for purposes of computing the response time, until the date on which they are identified by a member of the Council staff as being a request pursuant to the Freedom of Information Act.
(b) Requests should describe the records sought in sufficient detail to allow Council staff to locate them with a reasonable amount of effort. Thus, where possible, specific information, including dates, geographic location of cases, and parties involved, should be supplied.
(c) A request for all records falling within a reasonably specific category shall be regarded as conforming to the statutory requirement that records be reasonably described if the records can be identified by any process that is not unreasonably burdensome or disruptive of Council operations.
(d) If a request is denied on the ground that it does not reasonably describe the records sought, the denial shall specify the reasons why the request was denied and shall extend to the requester an opportunity to confer with Council staff in order to reformulate the request in sufficient detail to allow the records to be produced.
§ 810.3 Action on requests.
(a) Once a requested record has been identified, the Administrative Officer shall notify the requester of a date and location where the records may be examined or of the fact that copies are available. The notification shall also advise the requester of any applicable fees under § 810.5.
(b) A reply denying a request shall be in writing, signed by the Administrative Officer and shall include:
(1) Reference to the specific exemption under the Act which authorizes the denial of the record, a brief explanation of how the exemption applies to the record requested, and a brief statement of why a discretionary release is not appropriate; and,
(2) A statement that the denial may be appealed under § 810.4 within 30 days by writing to the Executive Director, Advisory Council on Historic Preservation, 1522 K Street NW., Washington, DC 20005.
(c) The requirements of § 810.3 (b)(1) and (2) do not apply to requests denied on the ground that they are not described with reasonable specificity and consequently cannot be identified.
(d) Within 10 working days from receipt of a request, the Administrative Officer shall determine whether to grant or deny the request and shall promptly notify the requester of the decision. In certain unusual circumstances specified below, the time for determinations on requests may be extended up to a total of 10 additional working days. The requester shall be notified in writing of any extension and of the reason for it, as well as of the data on which a determination will be made. Unusual circumstances include:
(1) The need to search for and collect records from field offices or other establishments that are separate from the Washington office of the Council;
(2) The need to search for, collect, and examine a voluminous amount of material which is sought in a request; or,
(3) The need for consultation with another agency having substantial interest in the subject matter of the request.
§ 810.4 Appeals.
(a) When a request has been denied, the requester may, within 30 days of receipt of the denial, appeal the denial to the Executive Director of the Council. Appeals to the Executive Director shall be in writing, shall be addressed to the Executive Director, Advisory Council on Historic Preservation, 1522 K Street NW., Washington, DC 20005, and shall be clearly marked “FREEDOM OF INFORMATION APPEAL.” Requests that are not so marked will be honored, but will be deemed not to have been received by the Council, for purposes of computing the response time, until the date on which they are identified by a member of the Council staff as being an appeal pursuant to the Freedom of Information Act.
(b) The appeal will be acted on within 20 working days of receipt. A written decision shall be issued. Where the decision upholds an initial denial of information, the decision shall include a reference to the specific exemption in the Freedom of Information Act which authorizes withholding the information, a brief explanation of how the exemption applies to the record withheld, and a brief statement of why a discretionary release is not appropriate. The decision shall also inform the requester of the right to seek judicial review in the U.S. District Court where the requester resides or has his principal place of business, or in which the agency records are situated, or in the District of Columbia.
(c) If no decision has been issued within 20 working days, the requester is deemed to have exhausted his administrative remedies.
§ 810.5 Fees.
(a) Fees shall be charged according to the schedules contained in paragraph (b) of this section unless it is determined that the requested information will be of primary benefit to the general public rather than to the requester. In that case, fees may be waived. Fees shall not be charged where they would amount to less than $3.00.
(b) The following charges shall be assessed:
(1) Copies of documents—$0.10 per page.
(2) Clerical searches—$1.00 for each one quarter hour in excess of the first quarter hour spent by clerical personnel in searching for requested records.
(3) Professional searches—$2.00 for each one quarter hour in excess of the first quarter hour spent by professional or managerial personnel in determining which records are covered by a request or other tasks that cannot be performed by clerical personnel.
(c) Where it is anticipated that fees may amount to more than $25.00, the requester shall be advised of the anticipated amount of the fee and his consent obtained before the request is processed. The time limits for processing the request under § 810.3 shall not begin to run until the requester’s written agreement to pay the fees has been received. In the discretion of the Administrative Officer, advance payment of fees may be required before requested records are made available.
(d) Payment should be made by check or money order payable to the Advisory Council on Historic Preservation.
§ 810.6 Exemptions.
(a) The Freedom of Information Act exempts from disclosure nine categories of records which are described in 5 U.S.C. 552(b).
(b) When a request encompasses records which would be of concern to or which have been created primarily by another Federal agency, the record will be made available by the Council only if the document was created primarily to meet the requirements of the Council’s regulations implementing section 106 of the National Historic Preservation Act or other provisions of law administered primarily by the Council. If the record consists primarily of materials submitted by State or local governments, private individuals, organizations, or corporations, to another Federal agency in fulfillment of requirements for receiving assistance, permits, licenses, or approvals from the agency, the Council may refer the request to that agency. The requester shall be notified in writing of the referral.
PART 811—EMPLOYEE RESPONSIBILITIES AND CONDUCT
§ 811.1 Cross-references to employees’ ethical conduct standards, financial disclosure and financial interests regulations and other conduct rules.
Employees of the Advisory Council on Historic Preservation are subject to the executive branch-wide standards of ethical conduct, financial disclosure and financial interests regulations at 5 CFR Parts 2634, 2635 and 2640, as well as the executive branch-wide employee responsibilities and conduct regulations at 5 CFR Part 735.
PART 812—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE ADVISORY COUNCIL ON HISTORIC PRESERVATION
§ 812.101 Purpose.
This part effectuates section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
§ 812.102 Application.
This part applies to all programs or activities conducted by the agency.
§ 812.103 Definitions.
For purposes of this part, the term—
Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with impaired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency. For example, auxiliary aids useful for persons with impaired vision include readers, brailled materials, audio recordings, telecommunications devices and other similar services and devices. Auxiliary aids useful for persons with impaired hearing include telephone handset amplifiers, telephones compatible with hearing aids, telecommunication devices for deaf persons (TDD’s), interpreters, notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the complainant’s name and address and describes the agency’s alleged discriminatory action in sufficient detail to inform the agency of the nature and date of the alleged violation of section 504. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination.
Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.
Handicapped person means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes—
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alocoholism.
(2) Major life activities includes functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
(4) Is regarded as having an impairment means—
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.
Historic preservation programs means programs conducted by the agency that have preservation of historic properties as a primary purpose.
Historic properties means those properties that are listed or eligible for listing in the National Register of Historic Places or properties designated as historic under a statute of the appropriate State or local government body.
Qualified handicapped person means—
(1) With respect to preschool, elementary, or secondary education services provided by the agency, a handicapped person who is a member of a class of persons otherwise entitled by statute, regulation, or agency policy to receive education services from the agency.
(2) With respect to any other agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility requirements and who can acheive the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
(3) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
(4) Qualified handicapped person is defined for purposes of employment in 29 CFR 1613.702(f), which is made applicable to this part by § 812.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), and the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used in this part, section 504 applies only to programs or activities conducted by Executive agencies and not to federally assisted programs.
Substantial impairment means a significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration.
§§ 812.104-812.109 [Reserved]
§ 812.110 Self-evaluation.
(a) The agency shall, by August 24, 1987, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, until three years following the completion of the self-evaluation, maintain on file and make available for public inspection:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
§ 812.111 Notice.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.
§§ 812.112-812.129 [Reserved]
§ 812.130 General prohibitions against discrimination.
(a) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) The agency may not, directly or through contractual or other arrangments, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified handicapped persons to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified handicapped persons to discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification program in a manner that subjects qualified handicapped persons to discrimination on the basis of handicap, nor may the agency establish requirements for the programs or activites of licensees or certified entities that subject qualified handicapped persons to discrimination on the basis of handicap. However, the programs or activities of entities that are licensed or certified by the agency are not, themselves, covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
§§ 812.131-812.139 [Reserved]
§ 812.140 Employment.
No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.
§§ 812.141-812.148 [Reserved]
§ 812.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in § 812.150, no qualified handicapped person shall, because the agency’s facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
§ 812.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by handicapped persons. This paragraph does not—
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by handicapped persons;
(2) In the case of historic preservation programs, require the agency to take any action that would result in a substantial impairment of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 812.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that handicapped persons receive the benefits and services of the program or activity.
(b) Methods—(1) General. The agency may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock, or any other methods that result in making its programs or activities readily accessible to and usable by handicapped persons. The agency is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. The agency, in making alterations to existing buildings, shall meet accessibility requirements to the extent compelled by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any regulations implementing it. In choosing among available methods for meeting the requirements of this section, the agency shall give priority to those methods that offer programs and activities to qualified handicapped persons in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of § 812.150(a) in historic preservation programs, the agency shall give priority to methods that provide physical access to handicapped persons. In cases where a physical alteration to an historic property is not required because of § 812.150(a)(2) or (a)(3), alternative methods of achieving program accessibility include—
(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide handicapped persons into or through portions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the obligations established under this section by October 21, 1986, except that where structural changes in facilities are undertaken, such changes shall be made by August 22, 1989, but in any event as expeditiously as possible.
(d) Transition plan. In the event that structural changes to facilities will be undertaken to achieve program accessibility, the agency shall develop, by February 23, 1987, a transition plan setting forth the steps necessary to complete such changes. The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the development of the transition plan by submitting comments (both oral and written). A copy of the transition plan shall be made available for public inspection. The plan shall, at a minimum—
(1) Identify physical obstacles in the agency’s facilities that limit the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
§ 812.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by handicapped persons. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.
§§ 812.152-812.159 [Reserved]
§ 812.160 Communications.
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf person (TDD’s) or equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and adminstrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 812.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, handicapped persons receive the benefits and services of the program or activity.
§§ 812.161-812.169 [Reserved]
§ 812.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) The General Counsel shall be responsible for coordinating implementation of this section. Complaints may be sent to the General Counsel, Advisory Council on Historic Preservation, 1100 Pennsylvania Avenue, NW., Washington, DC 20004.
(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 812.170(g). The agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the agency.
(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.
§§ 812.171-812.999 [Reserved]
PARTS 813-899 [RESERVED]
CHAPTER IX—PENNSYLVANIA AVENUE DEVELOPMENT CORPORATION
PART 900 [RESERVED]
PART 901—BYLAWS OF THE CORPORATION
§ 901.1 Title and office.
(a) Title. The name of the Corporation is the Pennsylvania Avenue Development Corporation.
(b) Office. The office of the Corporation shall be in the city of Washington, District of Columbia.
§ 901.2 Establishment.
(a) Creation. The Corporation, a wholly owned instrumentality of the United States subject to the Government Corporation Control Act (31 U.S.C. 841 et seq.), was established by the Pennsylvania Avenue Development Corporation Act of 1972 (Pub. L. 92-578, 86 Stat. 1266 (40 U.S.C. 871 et seq.)), as amended, hereinafter referred to as the Act.
(b) Purposes. The purposes for which this Corporation was established are those stated and promulgated by Congress in the Act.
§ 901.3 Board of directors.
(a) Powers and responsibilities. The business, property and affairs of the Corporation shall be managed and controlled by the Board of Directors, and all powers specified in the Act are vested in them. The Board may, at its discretion and as hereinafter provided, delegate authority necessary to carry on the ordinary operations of the Corporation to officers and staff of the Corporation.
(b) Composition; number; selection; terms of office. The Board of Directors shall be comprised of fifteen voting members and eight nonvoting members. The powers and management of the Corporation shall reside with the fifteen voting members, and the procedures of the Board shall be determined by them.
(1) The fifteen voting members shall include the seven government agency representatives specified in subsection 3(c) of the Act (or, their designees), and eight individuals meeting the qualifications of that subsection, appointed by the President of the United States from private life, at least four of whom shall be residents and registered voters of the District of Columbia.
(2) The Chairman and Vice Chairman shall be designated by the President of the United States from among those members appointed from private life.
(3) Upon his appointment, the Chairman shall invite the eight representatives designated in subsection 3(g) of the Act to serve as non-voting members of the Board of Directors.
(4) Each member of the Board of Directors appointed from private life shall serve a term of six years from the expiration of his predecessor’s term; except that the terms of the Directors first taking office shall begin on October 27, 1972 and shall expire as designated at the time of appointment. A Director may continue to serve until his successor has qualified.
(5) A Director appointed from private life wishing to resign shall submit a letter of resignation to the President of the United States, and his resignation shall become effective upon the date of the President’s acceptance thereof.
(6) A Director, appointed to fill a vacancy occurring prior to the expiration of the term for which his predecessor was appointed, shall serve for the remainder of such term.
(c) Meetings. (1) The Board of Directors shall meet and keep its records at the office of the Corporation.
(2) Meetings of the Board of Directors shall be held at the call of the Chairman, but not less often than once every three months. The Chairman shall also call a meeting at the written request of any five voting members.
(3) The Chairman shall direct the Secretary to give the members of the Board notice of each meeting, either personally, or by mail, or by telegram, stating the time, the place and the agenda for the meeting. Notice by telephone shall be personal notice. Any Director may waive, in writing, notice as to himself, whether before or after the time of the meeting, and the presence of a Director at any meeting shall constitute a waiver of notice of that meeting. Notice, in whatever form, shall be given so that a Director will have received it five working days prior to the time of the meeting.
(4) Unless otherwise limited by the notice thereof, any and all Corporation business may be transacted at any meeting.
(5) The Chairman shall preside at meetings of the Board of Directors, or the Vice Chairman in the absence of the Chairman. In the event of the absence of both the Chairman and the Vice Chairman, the Directors present at the meeting shall designate a Presiding Officer.
(d) Quorum. The presence of a majority of the number of voting Directors serving at the time of a meeting of the Board shall constitute a quorum for the transaction of business at such meeting of the Board. The act of a majority of the voting Directors at any meeting at which there is a quorum shall be an act of the Board of Directors. If there shall be less than a quorum at any meeting, a majority of the voting Directors present may adjourn the meeting until such time as a quorum can practically and reasonably be obtained.
(e) Directors serving in stead. Each member of the Board of Directors specified in paragraphs (1) through (7) of subsection 3(c) of the Act, if unable to serve in person, may designate up to two officials from his agency or department to serve on the Board in his stead. Such designation shall be effected by a letter of appointment, from the Director specified in the Act, received by the Chairman prior to or at a meeting of the Board of Directors. If two officials are so designated, then the Director specified in the Act shall identify one as the First Designee and the other as the Second Designee. The Second Designee may only serve as a Director if the First Designee is not in attendance at a meeting of the Board of Directors. An official designated to serve in stead shall serve as the voting Director of the represented agency until the Chairman receives written notice from the Director specified in the Act, or his successor, that the designation is rescinded.
(f) Vote by proxy. Voting members of the Board of Directors unable to attend a meeting may vote by proxy on resolutions which have been printed in the agenda in advance for the meeting.
(1) A Director unable to attend a meeting of the Board may submit a vote to be cast by the Presiding Officer by means of a written signed statement of his vote and the resolution to which it pertains together with any statement bearing on the matter the Director wishes to have read. The proxy vote shall be submitted to the Chairman with a separate signed copy to the Secretary, to be received not later than the close of business of the day prior to the date fixed for the meeting.
(2) The Presiding Officer shall cast proxy votes received by the Chairman in the following manner:
(i) Upon the close of discussion on a resolution for which there has been submitted one or more valid proxy votes, the Presiding Officer shall announce that he holds proxy vote(s) from named Director(s), and shall read any explanatory statements submitted by the Director(s) voting by proxy;
(ii) The Presiding Officer shall take the vote of the Directors present and then declare the proxy votes in hand;
(iii) The Secretary shall orally verify the validity of the votes submitted to be cast by proxy, and shall record them with the votes cast by the Directors present on the resolution.
(3) Proxy votes shall not be utilized to effect the presence of a quorum.
(g) Compensation of Directors. Members of the Board of Directors shall be compensated in the manner provided in section 3 of the Act.
(h) Approval of annual budget. Upon completion by the staff of a draft annual budget request, the Chairman shall call a meeting of the Board of Directors for its review and consideration. Upon approval by the Board of the draft budget request, it may be submitted to the Office of Management and Budget.
§ 901.4 Officers.
(a) General provisions. The corporate officers of the Corporation shall consist of a President, an Executive Director, two Assistant Directors, a Secretary (who shall be appointed by the Chairman from among the staff of the Corporation), and such other officers as the Board of Directors may from time-to-time appoint. Any corporate officer elected or appointed by the Board of Directors may be removed at any time, with or without cause, by the affirmative vote of a majority of the Board of Directors.
(b)(1) Powers and duties of the President. The Chairman of the Board of Directors shall be the President and chief executive officer of the Corporation and shall have the general powers and duties of supervision and management usually vested in the office of a president of a corporation. The President shall see that all resolutions and policies of the Board are carried into effect, and shall have power to execute contracts, leases, agreements, and other documents necessary for the operation of the Corporation.
(2) Assumption of powers and duties by Vice Chairman. In the event that the position of Chairman becomes vacant, the Vice Chairman shall promptly notify the President of the United States in writing to that effect and upon giving such notice, shall assume the Chairman’s powers and duties as President and Chief Executive Officer of the Corporation, including specific powers and duties delegated to the Chairman by the Board of Directors. Such assumption of the Chairman’s powers and duties shall cease upon the appointment or designation of a new Chairman or Acting Chairman by the President of the United States. The Vice Chairman shall also assume the powers and duties of the Chairman in the event of the latter’s incapacity, if the Chairman so requests in writing, or if a majority of the voting members of the Board of Directors finds by resolution that the Chairman is unable to exercise the powers and duties of his office. Such assumption of the Chairman’s powers and duties shall cease upon the Vice Chairman’s receipt of a letter from the Chairman stating that he or she is able to resume the exercise of the powers and duties of his office.
(c) Appointment of certain officers. The Board of Directors shall appoint an Executive Director and two Assistant Directors, who may be appointed and compensated without regard to the provisions of title 5 U.S.C. governing appointments in the competitive service and chapter 51 and subchapter IV of chapter 53 of title 5 U.S.C. Between meetings of the Board of Directors the Chairman may make appointments to the foregoing positions, when they become vacant by resignation or otherwise. However, the Chairman shall move to have such interim appointments confirmed at the next meeting of the Board. The Chairman shall have power to increase or decrease the salaries of the officers appointed under this section.
(d) Powers and duties of the Executive Director. The Executive Director shall be the chief of the Corporation’s staff and shall have general powers of supervision and management over the administration of the Corporation. The Executive Director shall have power to:
(1) Execute contracts, agreements, and other documents necessary for planning and design work and for ordinary operations of the Corporation.
(2) Hire staff (including temporary or intermittent experts and consultants).
(3) Procure space, equipment, supplies, and obtain interagency and commercial support services.
(4) Direct and manage the day-to-day operations and work of the Corporation.
(5) Supervise planning and development activities of the Corporation in accordance with the development plan and resolutions of the Board of Directors.
(6) Perform such other duties and exercise such powers as the President and Board of Directors may prescribe.
(e) Powers and duties of the Assistant Director/Legal. The Assistant Director/Legal shall be the General Counsel of the Corporation, advising the Board of Directors and the staff on all legal matters affecting the functioning of the Corporation. He shall:
(1) Coordinate with the Department of Justice in assuring that the interests of the Corporation are represented in any litigation arising from its authorities or actions.
(2) Advise the Board of Directors and the staff of statutory or regulatory requirements, and assure compliance therewith.
(3) Prepare or review all contracts, agreements or other documents of a legal nature.
(4) Prepare or review all draft legislation, regulations, official notices and other legal publications.
(5) Perform such other duties as may be prescribed by the Board of Directors, the President, or the Executive Director.
(f) Powers and duties of the Assistant Director/Development. The Assistant Director/Development shall advise the Board of Directors, officers and staff of the Corporation on all development activities to accomplish the goals of the development plan. He shall:
(1) Manage development activities in accordance with the development plan.
(2) Function as a key management official performing a wide range of duties required to accomplish the rebuilding of Pennsylvania Avenue.
(3) Provide managerial responsibility for the work of all project managers and consultants relating to development projects.
(4) Coordinate the tasks of other staff professionals as required for accomplishment of projects.
(5) Be liaison between the Corporation and other governmental agencies that review projects in the development area.
(6) Perform such other duties as may be prescribed by the Board of Directors, the President, or the Executive Director.
(g) Powers and Duties of the Secretary. The Secretary, to be appointed by the Chairman from among the Corporation’s staff, shall give notice of all meetings of the Board of Directors and record and keep the minutes thereof, keep in safe custody the seal of the Corporation, and shall affix the same to any instrument requiring it. When so affixed, the seal shall be attested by the signature of the Secretary. The Secretary shall also perform such other duties as may be prescribed by the Board of Directors, the President, or the Executive Director.
§ 901.5 Annual report.
The Executive Director shall prepare annually a comprehensive and detailed report of the Corporation’s operations, activities, and accomplishments for the review of the Board of Directors. Upon approval by the Board, the Chairman shall transmit the report in January of each year to the President of the United States and to the Congress.
§ 901.6 Seal.
The Corporation may adopt a corporate seal which shall have the name of the Corporation and year of incorporation printed upon it. The seal may be used by causing it or a facsimile thereof to be impressed, affixed, or reproduced.
§ 901.7 Amendments.
These bylaws may be altered, amended, or repealed by the Board of Directors at any meeting, if notice of the proposed alteration, amendment, or repeal is contained in the notice of the meeting.
PART 902—FREEDOM OF INFORMATION ACT
Subpart A—Applicability and Policy
§ 902.01 Purpose and applicability.
This part contains regulations of the Corporation implementing 5 U.S.C. 552, as amended. It informs the public about where and how the Corporation’s records may be obtained. The following provisions are applicable to all records of the Corporation in existence at the time a request for records is made. The regulations establish fee schedules applicable to the search and copying of requested records. This part identifies the officials having authority to act on requests and prescribes the procedures to appeal decisions which initially deny disclosure. Indexes maintained to reflect all records subject to this part are available for public inspection and copying as provided herein.
§ 902.02 Statement of policy.
In keeping with the spirit of the Freedom of Information Act, 5 U.S.C. 552, the policy of the Corporation is one of full and responsible disclosure of its records to the public. Therefore, all records of the Corporation, unless otherwise exempted under subpart F of this part, are declared to be available for public inspection and copying. Each officer and employee of the Corporation is directed to cooperate to this end and shall make records available to the public with reasonable promptness. A record may not be withheld from the public solely because its release might suggest administrative error or embarrass an officer or employee of the Corporation.
§ 902.03 Definitions.
As used in this part—
(a) Act means section 552 of title 5 U.S.C., as amended, Pub. L. 90-23, 81 Stat. 54, June 5, 1967; as amended, Pub. L. 93-502, 88 Stat. 1561, November 11, 1974. Pub. L. 90-23 repealed and superseded Pub. L. 89-487, 80 Stat. 250. July 4, 1966, sometimes referred to as the Freedom of Information Act or Public Information Act.
(b) Chairman means the Chairman of the Corporation’s Board of Directors and President of the Corporation.
(c) Corporation means the Pennsylvania Avenue Development Corporation, including the Board of Directors, Executive Officers, Corporation staff, and any subordinate organizational units operating under the Pennsylvania Avenue Development Corporation Act of 1972, Pub. L. 92-578, 86 Stat. 1266 (40 U.S.C. 871 et seq.), as amended.
(d) Person means person as defined in 5 U.S.C. 551(2).
(e) Records means any and all writing, drawings, maps, recordings, tapes, films, slides, photographs, or other documentary materials by which information is preserved.
(f) Submitter means any person or entity that provides or has provided information to the Corporation or about which the Corporation possess records subject to Exemption 4 of the Freedom of Information Act.
(g) Workday means a calendar day excluding Saturday, Sunday and Federal holidays, office hours being 9 a.m. to 5 p.m.
Subpart B—General Administration
§ 902.10 Delegation of administration of this part.
Except as provided in subpart H of this part, authority to administer this part is delegated to the Administrative Officer, who shall act upon all requests for access to records which are received by the Corporation from any person citing the Act.
§ 902.11 How records may be requested.
In accordance with § 902.41 of subpart E of this part all requests for records shall be made to the Administrative Officer, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW, Suite 1220 North, Washington, DC 20004.
§ 902.12 Maintenance of statistics; annual report to Congress.
(a) The Administrative Officer shall maintain records of:
(1) The fees collected by the Corporation for making records available under this part;
(2) The number of denials of requests for records made under this part, and the reasons for each denial;
(3) The number of appeals arising from denials, the result of each appeal, and the reasons for the action upon each appeal that results in a denial of information;
(4) The names and titles or positions of each person responsible for each denial of records requested under this part, and the number of instances of participation for each person;
(5) The results of each proceeding conducted pursuant to subsection 552(a)(4)(f) of title 5, U.S.C., including a report of the disciplinary action against the official or employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken;
(6) Every rule made by the Corporation affecting or implementing the Act;
(7) The fee schedule listing fees for search and duplication of records pursuant to request under the Act; and
(8) All other information which indicates efforts to administer fully the letter and spirit of the Act.
(b) The Administrative Officer shall annually prepare a report accounting for each item in paragraph (a) of this section for the prior calendar year. On or before March 1st of each year, the report shall be submitted to the Speaker of the House of Representatives and the President of the Senate for referral to the appropriate committees of Congress.
§ 902.13 Indexes of Corporation records.
(a) The Administrative Officer shall be responsible for maintenance, publication, distribution and availability for inspection and copying of the current indexes and supplements which are required by 5 U.S.C. (a)(2). Such indexes shall be published promptly on a quarterly basis unless the Chairman determines by order published in the
(b) The index of materials under this subpart covers all materials issued, adopted, or promulgated after July 4, 1967 by the Corporation. However, earlier materials may be included in the index to the extent practicable. Each index contains instruction for its use.
§ 902.14 Deletion of nondiscloseable information from requested records.
Whenever a requested record contains information which falls within one of the exempted categories of subpart F of this part, identifying details shall be deleted from the record before it is made available for public inspection and copying. When a requested record contains both discloseable and nondiscloseable information, only that portion which is reasonably segregable after deletion of the nondiscloseable portions, will be released. If the information in the discloseable portion is readily available from another source and that source is made known to the person making the request, the Corporation need not disclose the requested record. In all cases where a deletion is made, an explanation of the deletion shall be attached to the record made available for inspection, distribution, or copying. Appeal of deletions shall be made in accordance with subpart H of this part.
§ 902.15 Protection of records.
(a) No person may, without permission of the Administrative Officer, remove from the Corporation’s offices any record made available to him for inspection or copying. In addition, no person may steal, alter, multilate, obliterate, or destroy, in whole or in part, such a record.
(b) Section 641 of title 18 U.S.C. provides, in pertinent part, as follows:
(1) Whoever * * * steals, purloins, knowingly converts to his use or the use of any other or without authority sells, conveys or disposes of any record * * * or thing of value shall be fined not more than $10,000 or imprisoned not more than 10 years or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year or both. * * *
(c) Section 2071 of title 18 U.S.C. provides, in pertinent part, as follows:
(1) Whoever willfully and unlawfully conceals, removes, multilates, obliterates, or destroys, or attempts to do so, or with intent to do so takes and carries away any record, proceeding, map, book, paper document, or other thing, filed or deposited * * * in any public office, or with any * * * public officer of the United States, shall be fined not more than $2,000 or imprisoned not more than 3 years, or both.
Subpart C—Publication in the Federal Register
§ 902.20 Applicability.
Subject to the exemptions in subpart F of this part, the Corporation, for the guidance of the public, shall submit to the Director of the Federal Register for publication—
(a) Descriptions of the Corporation’s organization and functional responsibilities and the designation of places at which the public may secure information, obtain forms and applications, make submittals or requests, or obtain decisions:
(b) Statements of the general course and method by which the Corporation’s functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(c) Rules of procedure, descriptions of forms available, and instructions as to the scope and contents of all papers, reports, or examinations;
(d) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability; and,
(e) Each amendment, revision, or repeal of the foregoing.
§ 902.21 Publication in the Federal Register shall be constructive notice of information that affects the public.
(a) All material described in § 902.20 shall be published in the
(b) Publication in the
Subpart D—Availability of Records Not Published in the Federal Register
§ 902.30 Applicability.
(a) This subpart implements section 552(a)(2) of title 5 U.S.C., as amended by 88 Stat. 1561 (1974). It prescribes the rules governing the availability for public inspection and copying of the following:
(1) Final opinions or orders (including concurring and dissenting opinions, if any) made in the adjudication of cases;
(2) Statements of policy or interpretations which have been adopted under the authority of the Corporation’s enabling act, including statements of policy or interpretation concerning a particular factual situation. If they can reasonably be expected to have precedential value in any case involving a member of the public in a similar situation, and have not been published in the
(3) Administrative staff manuals or instructions to the staff of the Corporation which affects any member of the public. Included within this category are manuals or instructions which prescribe the manner or performance of any activity by any person. Excepted from this category are staff manuals or instructions to staff concerning internal operating rules, practices, guidelines and procedures for Corporation negotiators and inspectors, the release of which would substantially impair the effective performance of their duties.
(4) Documents and materials offered for sale under the auspices of the Corporation.
(5) Any index of materials which is required to be maintained by the Corporation under § 902.13.
(b) Records listed in paragraph (a) of this section, which the Corporation does not make available for public inspection and copying, or that are not indexed as required by § 902.13, may not be cited, relied upon, or used as a precedent by the Corporation to adversely affect any person, unless the person against whom it is cited, relied upon, or used, has had actual and timely notice of that material.
(c) This subpart shall not apply to information published in the
§ 902.31 Access, inspection and copying.
(a) Records listed in § 902.30(a), are available for inspection and copying by any person at the Corporation’s office, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004. Facilities for inspection and copying shall be open to the public every workday.
(b) Records listed in § 902.30(a), that are published and offered for sale, shall be indexed as required under § 902.13, and shall be available for public inspection. Records offered for sale will not be copied by the Corporation for the requester without the approval of the Administrative Officer.
(c) Records listed in § 902.30(a) are subject to subpart F of this part and access may be restricted by the Corporation in accordance with that subpart. A refusal to disclose may be appealed by the requester under the provisions of subpart H of this part.
Subpart E—Availability of Reasonably Described Records
§ 902.40 Applicability.
This subpart implements section 552(a)(3) of title 5 U.S.C., as amended, and prescribes regulations governing public inspection and copying of reasonably described records in the Corporation’s custody. This subpart shall not apply to material which is covered by subparts C and D of this part, and records exempted under subpart F of this part.
§ 902.41 Public access to reasonably described records.
(a) Any person desiring access to a record covered by this subpart may make request for records and copies either in person on any workday at the Corporation’s office, or by written request. In either instance, the requester must comply with the following provisions;
(1) A written request must be made for the record;
(2) The request must indicate that it is being made under the Freedom of Information Act (section 552 of title 5 U.S.C.); and
(3) The request must be addressed to the attention of the Administrative Officer, as provided in § 902.11.
(b) Each request for a record should reasonably describe the particular record sought. The request should specify, to the extent possible, the subject matter of the record, the date when it was made, the place where it was made and the person who made it. If the description is insufficient to process the request, the Public Information offices shall promptly notify the person making the request and solicit further information. The Administrative Officer may assist the person in perfecting the request.
(c) Requests made in person at the Corporation’s office during regular working hours (9 a.m. to 5 p.m., Monday through Friday, except Federal holidays) shall be processed as provided in subpart G of this part. The Corporation shall provide adequate inspection and copying facilities. Original records may be copied, but may not be released from the custody of the Corporation. Upon payment of the appropriate fee, copies will be provided to the requester by mail or in person.
(d) Every effort will be made to make a record in use by the staff of the Corporation available when requested, and availability may be deferred only to the extent necessary to avoid serious interference with the business of the Corporation.
(e) Notwithstanding paragraphs (a) through (d) of this section, informational materials and services, such as press releases, and similar materials prepared by the Corporation, shall be made available upon written or oral request. These services are considered as part of any informational program of the Government and are readily made available to the public. There is no fee for individual copies of such materials as long as they are in supply. In addition, the Corporation will continue to respond, without charge, to routine oral or written inquiries that do not involve direct access to records of the Corporation.
§ 902.42 Request for records of concern to more than one government organization.
(a) If the release of a record covered by this subpart would be of concern to both the Corporation and another Federal agency, the record will be made available only after consultation with the other agency concerned. Records of another agency in the Corporation’s possession will not be disclosed without the approval of the other agency.
(b) If the release of a record covered by this subpart would be of concern to both the Corporation and to a foreign, state or local government, the record will be made available by the Corporation only after consultation with the other interested foreign state or local government. Records of a foreign, state or local government will not be disclosed without the approval of the government concerned.
Subpart F—Exemptions From Public Access to Corporation Records
§ 902.50 Applicability.
(a) This subpart implements section 552(b) of title 5 U.S.C., which exempts certain records from public inspection under section 552(a). This subpart applies to records requested under subparts D and E of this part. The Corporation may, however, release a record authorized to be withheld under §§ 902.52 through 902.59 unless it determines that the release of that record would be inconsistent with a purpose of the aforementioned sections. Examples given in §§ 902.52 through 902.59 of records included within a particular statutory exemption are not necessarily illustrative of all types of records covered by the exemption. Any reasonably segregable portion of a record withheld under this subpart shall be provided to a requester, after deletion of the portions which are exempt under this subpart.
(b) This subpart does not authorize withholding of information or limit the availability of records to the public, except as specifically stated. This subpart is not authority to withhold information from Congress.
§ 902.51 Records relating to matters that are required by Executive order to be kept secret.
Records relating to matters that are specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy, include those within the scope of the following, and any further amendment of any of them, but only to the extent that the records are in fact properly classified pursuant to such Executive order:
(a) Executive Order 11652 of March 8, 1972 (3 CFR 1974 Comp. p. 339);
(b) Executive Order 10865 of February 20, 1960 (3 CFR 1959-1963 Comp. p. 398); and
(c) Executive Order 10104 of February 1, 1950 (3 CFR 1949-1953 Comp., p. 298).
(a) Records related solely to internal personnel rules and practices that are within the statutory exemption include memoranda pertaining to personnel matters such as staffing policies, and policies and procedures for the hiring, training, promotion, demotion, and discharge of employees, and management plans, records, or proposals related to labor-management relationships.
(b) The purpose of this section is to authorize the protection of any record related to internal personnel rules and practices dealing with the relations between the Corporation and its employees.
§ 902.53 Records exempted from disclosure by statute.
(a) Records relating to matters that are specifically exempted by statute from disclosure may not be made available for public inspection. For example: section 1905 of title 18 U.S.C., protecting trade secrets, processes, and certain economic and other data obtained by examination or investigation, or from reports.
(b) The purpose of this section is to preserve the effectiveness of statutes of the kind cited as an example, in accordance with their terms.
§ 902.54 Trade secrets and commercial or financial information that is privileged or confidential.
(a) Trade secrets and commercial or financial information that are privileged and for which confidentiality is requested by the person possessing such privilege are within the statutory exemption. This includes the following:
(1) Commercial or financial information not customarily released to the public, furnished and accepted in confidence or disclosure of which could reasonably be expected to cause substantial competitive harm, or both;
(2) Statements of financial interest furnished by officers and employees of the Corporation;
(3) Commercial, technical, and financial information furnished by any person in connection with an application for a loan or a loan guarantee;
(4) Commercial or financial information customarily subjected to an attorney-client or similar evidentiary privilege; or,
(5) Materials in which the Corporation has a property right such as designs, drawings, and other data and reports acquired in connection with any research project, inside or outside of the Corporation, or any grant or contract.
(b) The purpose of this section is to authorize the protection of trade secrets and commercial or financial records that are customarily privileged or are appropriately given to the Corporation in confidence. It assures the confidentiality of trade secrets and commercial or financial information obtained by the Corporation through questionnaires and required reports to the extent that the information would not customarily be made public by the person from whom it was obtained. In any case in which the Corporation has obligated itself not to disclose trade secrets and commercial or financial information it receives, this section indicates the Corporation’s intention to honor that obligation to the extent permitted by law. In addition, this section recognizes that certain materials, such as research data and materials, formulae, designs, and architectural drawings, have significance not as records but as items of property acquired, in many cases at public expense. In any case in which similar proprietary material in private hands would be held in confidence, material covered in this section may be held in confidence.
(c)(1) In general. For commercial or financial information furnished to the Corporation on or after March 30, 1988, the Corporation shall require the submitter to designate, at the time the information is furnished or within a reasonable time thereafter, any information the submitter considers confidential or privileged. Commercial or financial information provided to the Corporation shall not be disclosed pursuant to a Freedom of Information Act request except in accordance with this paragraph.
(2) Notice to submitters. The Corporation shall provide a submitter with prompt written notice of a request encompassing its commercial or financial information whenever required under paragraph (c)(3) of this section, and except as is provided in paragraph (c)(7) of this section. Such written notice shall either describe the exact nature of the information requested or provide copies of the records or portions thereof containing the information. Concurrently with its notice to a submitter, the Corporation shall inform a requestor in writing that the submitter is afforded a reasonable period within which to object to disclosure and that the 10 workday initial determination period provided for in 36 CFR 902.60 may therefore be extended.
(3) When notice is required. (i) For information submitted to the Corporation prior to March 30, 1988, the Corporation shall provide a submitter with notice of a request whenever:
(A) The information is less than ten years old;
(B) The information is subject to prior express commitment of confidentiality given by the Corporation to the submitter; or
(C) The Corporation has reason to believe that disclosure of the information may result in substantial competitive harm to the submitter.
(ii) For information submitted to the Corporation on or after March 30, 1988, the Corporation shall provide a submitter with notice of a request whenever:
(A) The submitter has in good faith designated the information as confidential, or
(B) The Corporation has reason to believe that disclosure of the information may result in substantial competitive harm to the submitter.
(4) Opportunity to object to disclosure. Through the notice described in paragraph (c)(2) of this section, the Corporation shall afford a submitter a reasonable period within which to provide the Corporation with a detailed statement of any objection to disclosure. Such statement shall specify all grounds for withholding any of the information under any exemption of the Freedom of Information Act and, in the case of Exemption 4, shall demonstrate why the information is contended to be privileged or confidential. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the Freedom of Information Act.
(5) Notice of intent to disclose. The Corporation shall consider carefully a submitter’s objections and specific grounds for nondisclosure prior to determining whether to disclose information. Whenever the Corporation decides to disclose information over the objection of a submitter, the Corporation shall forward to the submitter a written notice which shall include:
(i) A statement of the reasons for which the submitter’s disclosure objections were not sustained;
(ii) A description of the information to be disclosed; and
(iii) A specified disclosure date.
(6) Notice of lawsuit. Whenever a requester brings suit seeking to compel disclosure of information covered by paragraph (c) of this section, the Corporation shall promptly notify the submitter.
(7) Exceptions to notice requirements. The notice requirements of this section shall not apply if:
(i) The Corporation determines that the information should not be disclosed;
(ii) The information lawfully has been published or otherwise made available to the public;
(iii) Disclosure of the information is required by law (other than 5 U.S.C. 552); or
(iv) The designation made by the submitter in accordance with paragraphs (c)(1) and (c)(3)(ii) of this section appears obviously frivolous; except that, in such case, the Corporation shall provide the submitter with written notice of any final decision to disclose information within a reasonable number of days prior to a specified disclosure date.
§ 902.55 Intragovernmental exchanges.
(a) Any record prepared by a Government officer or employee (including those prepared by a consultant or advisory body) for internal Government use is within the statutory exemption to the extent that it contains—
(1) Opinions, advice, deliberations, or recommendations made in the course of developing official action by the Government, but not actually made a part of that official action, or
(2) Information concerning any pending proceeding or similar matter including any claim or other dispute to be resolved before a court of law, administrative board, hearing officer, or contracting officer.
(b) This section has two distinct purposes. One is to protect the full and frank exchange of ideas, views, and opinions necessary for the effective functioning of the Government and to afford this protection both before and after any action is taken. This judicially recognized privilege of protection against disclosure in litigation or elsewhere is intended to assure that these resources will be fully and readily available to those officials upon whom the responsibility rests to take official and final Corporation action. However, the action itself, any memoranda made part of that action, and the facts on which it is based are not within this protection. The other purpose is to protect against the premature disclosure of material that is in the development stage if premature disclosure would be detrimental to the authorized and appropriate purposes for which the material is being used, or if, because of its tentative nature, the material is likely to be revised or modified before it is officially presented to the public.
(c) Examples of records covered by this section include minutes to the extent they contain matter described in paragraph (a) of this section; staff papers containing advice, opinions, suggestions, or exchanges of views, preliminary to final agency decision or action; budgetary planning and programming information; advance information on such things as proposed plans to procure, lease, or otherwise hire and dispose of materials, real estate, or facilities, documents exchanged preparatory to anticipated legal proceedings; material intended for public release at a specified future time, if premature disclosure would be detrimental to orderly processes of the Corporation; records of inspection, investigations, and surveys pertaining to internal management of the Department; and matters that would not be routinely disclosed under disclosure procedures in litigation and which are likely to be the subject of litigation. However, if such a record also contains factual information, that information must be made available under subpart E of this part unless the facts are so inextricably intertwined with deliverative or policymaking processes, that they cannot be separated without disclosing those processes.
§ 902.56 Protection of personal privacy.
(a) Any of the following personnel, medical, or similar records is within the statutory exemption if its disclosure would harm the individual concerned or be a clearly unwarranted invasion of his personal privacy:
(1) Personnel and background records personal to any officer or employee of the Corporation, or other person, including his home address;
(2) Medical histories and medical records concerning individuals, including applicants for licenses; or
(3) Any other detailed record containing personal information identifiable with a particular person.
(b) The purpose of this section is to provide a proper balance between the protection of personal privacy and the preservation of the public’s rights to Corporation information by authorizing the protection of information that, if released, might unjustifiably invade an individual’s personal privacy.
§ 902.57 Investigatory files compiled for law enforcement purposes.
(a) Files compiled by the Corporation for law enforcement purposes, including the enforcement of the regulations of the Corporation, are within the statutory exemption to the extent that production of such records would:
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to a fair trial or an impartial adjudication;
(3) Constitute an unwarranted invasion of personal privacy;
(4) Disclose the identity of a confidential source and in the case of a record compiled by a criminal law enforcement authority in the courts of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source;
(5) Disclose investigative techniques and procedures; or,
(6) Endanger the life or physical safety of law enforcement personnel.
(b) The purpose of this section is to protect from disclosure the law enforcement files of the Corporation including files prepared in connection with related litigation and adjudicative proceedings. It includes the enforcement not only of criminal statutes but all kinds of laws.
§ 902.58 Reports of financial institutions.
Any material contained in or related to any examination, operating, or condition report prepared by, on behalf of, or for the use of, any agency responsible for the regulation or supervision of financial institutions is within the statutory exemption.
§ 902.59 Geological and geophysical information.
Any geological or geophysical information and data (including maps) concerning wells is within the statutory exemption.
Subpart G—Time Limitations
§ 902.60 Initial determination.
(a) An initial determination whether or not to release a record requested under subparts D and E of this part shall be made by the Public Information Offices within 10 workdays after the receipt of a request which complies with § 902.21. Failure of the requester to comply with those provisions may toll the running of the 10 day period until the request is identified as one being made under the Act. This time limit may be extended by up to 10 workdays in accordance with § 902.62.
(b) Upon making initial determination, the Administrative Officer shall immediately notify the person making the request as to its disposition. If the determination is made to release the requested record, the Administrative Officer shall make the record promptly available. If the determination is to deny the release of the requested record, the Public Information Officer shall immediately notify the requester of the denial and shall provide the following information.
(1) The reason for the determination, including a reference to the appropriate exemption provided in subpart F of this part;
(2) The right of the request or to appeal the determination as provided in subpart H of this part; and
(3) The name and position of each person responsible for the denial of the request.
§ 902.61 Final determination.
A determination with respect to any appeal made pursuant to subpart H of this part will be made within twenty work days after the date of receipt of the appeal. The time limit provided may be extended by up to 10 workdays in accordance with § 902.62.
§ 902.62 Extension of time limits.
(a) In unusual circumstances, the time limits prescribed in §§ 902.60 and 902.61 may be extended by written notice to the person making the request. The notice shall set forth the reasons for the extension and the date on which a determination is expected to be dispatched. Under no circumstances shall the notice specify a date that would result in an extension for more than 10 workdays.
(b) As used in this section, unusual circumstances means (but only to the extent reasonably necessary to the proper processing of the particular request):
(1) The need to search for, collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request;
(2) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; or
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein.
(c) Any person having made a request for records under this part shall have exhausted his administrative remedies with respect to such request, if the Corporation fails to comply with the applicable time limitations set forth in this subject.
Subpart H—Procedures for Administrative Appeal of Decisions Not To Disclose Records
§ 902.70 General.
Within the time limitations of subpart G of this part, if the Administrative Officer makes a determination not to disclose a record requested under subparts D and E of this part, he shall furnish a written statement of the reasons for that determination to the person making the request. The statement shall indicate the name(s) and title(s) of each person responsible for the denial of the request, and the availability of an appeal with the Corporation. Any person whose request for a record has been denied may submit a written appeal to the Corporation requesting reconsideration of the decision.
§ 902.71 Forms for appeal.
Although no particular written form is prescribed for on appeal, the letter or similar written statement appealing a denial of a record shall contain a description of the record requested, the name and position of the official who denied the request, the reason(s) given for the denial, and other pertinent facts and statements deemed appropriate by the appellant. The Corporation may request additional details if the information submitted is insufficient to support an appeal.
§ 902.72 Time limitations on filing an appeal.
An appeal must be submitted in writing within thirty days from the date of receipt of the initial written denial and must contain the information requested in § 902.71.
§ 902.73 Where to appeal.
An appeal shall be addressed to the Chairman of the Board of Directors, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004.
§ 902.74 Agency decision.
(a) The Chairman shall have sole authority to act on an appeal, which seeks to reverse an initial decision denying disclosure of a record. He shall review each appeal and provide the appellant and other interested parties with a written notice of his decision. The decision of the Chairman as to the availability of the record is administratively final.
(b) If the decision of the Chairman sustains the refusal to disclose, the notice of decision shall set forth the reasons for the refusal, including the specific exemptions from disclosure under the Act that are the bases of the decision not to disclose. The notice shall further advise the appellant that judicial review is available on complaint to the appropriate District Court of the United States, as provided in section 552(a)(4)(B) of title 5 U.S.C.
(c) As set out in § 902.61, the final decision on appeal shall be made within 20 workdays after the receipt of the appeal. An extension of this limitation is authorized as prescribed under § 902.62.
Subpart I—Fees
§ 902.80 General.
(a) This subpart prescribes fees for services performed by the Corporation under subparts D and E of this part. This subpart shall only apply to the services described herein. The fees for the service listed reflect the actual cost of the work involved in compiling requested record and copying, if necessary.
(b) A fee shall not be charged for time spent in resolving legal or policy issues.
§ 902.81 Payment of fees.
The fees prescribed in this part may be paid in cash or by check, draft, or postal money order made payable to the Pennsylvania Avenue Development Corporation.
§ 902.82 Fee schedule.
(a) Definitions. For purposes of this section—
(1) A commercial use request is a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, the Corporation will determine the use to which the requester will put the records sought. Where the Corporation has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the Corporation will seek additional clarification before assigning the request to a specific category.
(2) Direct costs means those expenditures the Corporation actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) records to respond to an FOIA request. Direct costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting the facility in which the records are stored.
(3) Duplication means the process of making a copy of a record necessary to respond to an FOIA request. Such copies can take the form of paper copy, microform, audio-visual materials, or machine-readable documentation (e.g., magnetic tape or disk), among others. The copy provided must be in a form that is reasonably usable by requesters.
(4) Educational institution means a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research.
(5) Non-commercial scientific institution means an institution that is not operated on a commercial basis, within the meaning of paragraph (a)(1) of this section and that is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.
(6) Representative of the new media means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term news means information that is about current events or that would be of current interest to the public. Examples of new media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of news) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. Freelance journalists may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but the Corporation may also look to the past publication record of a requester in making this determination.
(7) Review means the process of examining records located in response to a request that is for a commercial use (see paragraph (a)(1) of this section) to determine whether any portion of any record located is permitted to be withheld. It also includes processing any records for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(8) Search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within records. A line-by-line search will not be conducted when merely duplicating an entire record would be the less expensive and quicker method of complying with the request. Search does not include review of material to determine whether the material is exempt from disclosure (see paragraph (a)(7) of this section). Searches may be done manually or by computer using existing programming.
(b) The following provisions shall apply with respect to services rendered to the public in processing requests for disclosure of the Corporation’s records under this part:
(1) Fee for duplication of records: $0.25 per page. When the Corporation estimates that duplication charges are likely to exceed $25.00, it will notify the requester of the estimated amount of fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. The Corporation will offer the requester the opportunity to confer with the Corporation’s staff in order to reformulate the request to meet the requester’s needs at a lower cost.
(2) Search and review fees. (i) Searches for records by clerical personnel: $7.00 per hour, including the time spent searching for and copying any records.
(ii) Search for and review of records by professional and supervisory personnel: $11.50 per hour spent searching for any record or reviewing any record to determine whether it may be disclosed, including time spent in copying any record.
(iii) Except for requests seeking records for a commercial use, the Corporation will provide the first 100 pages of duplication and the first two hours of search time without charge. The word pages means paper copies of a standard size, either 8
(3) Duplication of architectural drawings, maps, and similar materials: (per copy) $10.00.
(4) Reproduction of 35 mm slides: (per copy) $1.00.
(5) Reproduction of enlarged, black and white photographs: (per copy) $10.00.
(6) Reproduction of enlarged color photographs: (per copy) $17.00.
(7) Certification and validation fee: $1.75 for each certification or validation of a copy of any record.
(8) Categories of FOIA requesters and fees to be charged—(i) Commercial use requesters. When the Corporation receives a request for records for commercial use, it will assess charges to recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Requesters must reasonably describe the records sought.
(ii) Educational and non-commercial scientific institution requesters. The Corporation shall provide copies of records to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that the request is being made as authorized by and under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a non-commercial scientific institution) research. Requesters must reasonably describe the records sought.
(iii) Requesters who are representatives of the news media. The Corporation shall provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must meet the criteria in the definition of representative of the news media in paragraph (a)(6) of this section, and his or her request must not be made for a commercial use. In reference to this class of requester, a request for records supporting the news dissemination function of the requester shall not be considered to be a request that is for a commercial use. Requestors must reasonably describe the records sought.
(iv) All other requesters. The Corporation will charge requesters who do not fit into any of the categories above fees which recover the full reasonable direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first two hours of search time shall be furnished without charge. Requests from record subjects for records about themselves filed in the Corporation’s systems of records will be treated under the fee provisions of the Privacy Act of 1974 which permit fees only for reproduction. Requesters must reasonably describe the records sought.
(9) Interest. In the event a requester fails to remit payment of fees charged for processing a request under this part within 30 days from the date such fees were billed, interest on such fees may be assessed beginning on the 31st day after the billing date at the rate prescribed in section 3717 of title 31 U.S.C., and will accrue from the date of the billing.
(10) Unsuccessful searches. Except as provided in paragraph (b)(8)(iv) of this section, the cost of searching for a requested record shall be charged even if the search fails to locate such record or it is determined that the record is exempt from disclosure.
(11) Aggregating requests. A requester must not file multiple requests at the same time, each seeking portions of a record or records, solely in order to avoid payment of fees. When the Corporation reasonably believes that a requester, or a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the Corporation may aggregate any such requests and charge accordingly.
(12) Advance payments. The Corporation will not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request unless:
(i) The Corporation estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250; or
(ii) If a requester has previously failed to make timely payments (i.e., within 30 days of billing date) of fees charged under this part, the requester may be required to pay the full amount owed plus any applicable interest accrued thereon or demonstrate that he has, in fact, paid the fee, and to make an advance payment of the full amount of the estimated fee before the Corporation begins to process a new request or a pending request from this requester.
(iii) With regard to any request coming within paragraphs (b)(12) (i) and (ii) of this section, the administrative time limits set forth in §§ 902.60, 902.61, and 902.62 of this part will begin to run only after the Corporation has received the requisite fee payments.
(iv) Non-payment. In the event of nonpayment of billed charges for disclosure of records, the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365), including disclosure to consumer credit reporting agencies and referral to collection agencies, where appropriate, may be utilized to obtain payment.
§ 902.83 Waiver or reduction of fees.
Fees otherwise chargeable in connection with a request for disclosure of a record shall be waived or reduced where:
(a) Disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester; or
(b) The costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee.
PART 903—PRIVACY ACT
§ 903.1 Purpose and scope.
The purpose of this part is to enable the Pennsylvania Avenue Development Corporation to implement the Privacy Act of 1974, and in particular the provisions of 5 U.S.C. 552a, as added by the Act. The Act was designed to insure that personal information about individuals collected by Federal agencies be limited to that which is legally authorized and necessary, and that the information is maintained in a manner which precludes unwarranted intrusions upon individual privacy. The regulations in this part establish, and make public, procedures whereby an individual can:
(a) Request notification of whether or not the Corporation maintains or has disclosed a record pertaining to him or her,
(b) Request access to such a record or an accounting of its disclosure,
(c) Request that the record be amended, and
(d) Appeal any initial adverse determination of a request to amend a record.
§ 903.2 Definitions.
As used in this part:
(a) Agency means agency as defined in 5 U.S.C. 552(e).
(b) Corporation means the Pennsylvania Avenue Development Corporation.
(c) Workday shall be a day excluding a Saturday, Sunday or legal holiday.
(d) Individual means a citizen of the United States or an alien lawfully admitted for permanent residence.
(e) Maintain includes maintain, collect, use, or disseminate.
(f) Record means any items, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his or her education, financial transactions, medical history, and criminal or employment history and that contains his or her name, or the identifying number, symbol or other identifying particular assigned to the individual, such as a finger or voice print or a photograph.
(g) The term system of records means a group of records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.
(h) The term statistical record means a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual except as provided by section 8 of title 13 U.S.C.
(i) The term routine use means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.
§ 903.3 Procedures for notification of records pertaining to individuals.
(a) An individual making a written or oral request under the Privacy Act (5 U.S.C. 522a) shall be informed of any Corporation systems of records which pertain to the individual, if the request contains a reasonable identification of the appropriate systems of records as described in the notice published in the
(b) Requests may be made in person between the hours of 9:00 a.m. and 5:00 p.m. Monday through Friday, (except legal holidays). The request should be addressed to the Privacy Protection Officer, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004. The Privacy Protection Officer of the Corporation will require adequate personal identification before processing the request. If a request is made in writing it must be under the signature of the requesting individual and include the individual’s address, date of birth, and an additional proof of identification, such as a photocopy of a driver’s license or similar document bearing the individual’s signature. A notarized, signed statement is acceptable to verify the identity of the individual involved without additional proof.
§ 903.4 Requests for access to records.
(a) Except as otherwise provided by law or regulation, an individual, upon request made in person or delivered in writing may gain access to his or her record or to any information pertaining to him or her which is contained in a system of records maintained by the Corporation, and to review the record and have a copy made of all or any portion thereof in a form comprehensible to him or her. An individual seeking access to a Corporation record may be accompanied by a person of his or her choosing. However, the Corporation will require a written statement from the individual authorizing discussion of his or her record in the accompanying person’s presence.
(b) A request under paragraph (a) of this section shall be directed to the Privacy Protection Officer at the place, times and in the manner prescribed in § 903.3(a) and (b). The request should include the following information:
(1) The name of the individual;
(2) If made in writing, the information required under § 903.3(b);
(3) A description of system or systems of records which contain the record to which access is requested;
(4) The approximate dates covered by the record; and,
(5) A suggested date and time when the individual would like to view the record.
(c) Requests which do not contain information sufficient to identify the record requested will be returned promptly to the requester, with a notice indicating that information is lacking. Individuals making requests in person will be informed of any deficiency in the specification of records or identification at the time that the request is made. The Privacy Protection Officer of the Corporation will require adequate personal identification before processing a request made in person.
§ 903.5 Response to request for access.
(a) Within 10 days of receipt of a request made under § 903.4 the Privacy Protection Officer shall determine whether access to the record is available under the Privacy Act and shall notify the requesting individual in person or in writing of that determination.
(b) Notices granting access shall inform the individual when and where the requested record may be seen, how copies may be obtained, and of any anticipated fees or charges which may be incurred under § 903.11. Access shall be provided within 30 days of receipt of the request unless the Corporation, for good cause shown, is unable to provide prompt access, in which case the individual shall be informed in writing within the 30 days as to the cause for delay and when it is anticipated that access will be granted.
(c) Notices denying access shall state the reasons for the denial, and advise the individual that the decision may be appealed in accordance with the procedures set forth in § 903.6.
§ 903.6 Appeal of initial denial of access.
(a) After receiving notification of an initial denial of access to a record, an individual may request a review and reconsideration of the request by the Executive Director of the Corporation, or an officer of the Corporation designated by him, but other than the Privacy Protection Officer. Appeals for review shall be in writing, addressed to the Executive Director, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004. The appeal shall identify the record as in the original request, shall indicate the date of the original request and the date of the initial denial, and shall indicate the expressed basis for the denial.
(b) Not later than 30 days after receipt of an appeal, the Executive Director, or an officer of the Corporation designated by him, will complete review of the appeal and the initial denial and either:
(1) Determine that the appeal should be granted, and notify the individual in writing to that effect; or,
(2) Determine that the appeal should be denied because the information requested is exempt from disclosure. If the reviewing official denies the appeal, he or she shall advise the individual in writing of the decision and the reasons for reaching it, and that the denial of the appeal is a final agency action entitling the individual to seek judicial review in the appropriate district court of the United States as provided in 5 U.S.C. 552a(g).
§ 903.7 Requests for amendment of record.
(a) An individual may request amendment of a Corporation record pertaining to him or to her, if the individual believes that the record contains information which is not accurate, relevant, timely, or complete. The request shall be in writing, whether presented in person or by mail, shall state with specificity the record sought to be amended, and shall propose wording of the correction or amendment sought. The request shall be directed to the Privacy Protection Officer at the place, times, and in the manner specified in § 903.3 (a) and (b). Assistance in preparing a request to amend a record, or to appeal an initial adverse determination under § 903.3(a), may be obtained from the Privacy Officer, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004.
(b) Not later than 10 days after the date of receipt of a request the Privacy Protection Officer will acknowledge it in writing. The acknowledgement will clearly describe the request, and if a determination has not already been made, will advise the individual when he or she may expect to be advised of action taken on the request. For requests presented in person, written acknowledgement will be provided at the time when the request is presented. No separate acknowledgement of receipt will be issued if the request can be reviewed and the individual advised of the results of the review within the 10 day period.
§ 903.8 Review of request for amendment of record.
(a) Upon receipt of a request for amendment of a record the Privacy Protection Officer will promptly review the record and: Either:
(1) Amend any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or
(2) Inform the individual of refusal to amend the record in accordance with the request. In reviewing a record pursuant to a request to amend it, the Corporation will assess the accuracy, relevance, timeliness and completeness of the record in terms of the criteria established in 5 U.S.C. 522a(e)(5). In reviewing a record in response to a request to amend it by deleting information, the Corporation will ascertain whether or not the information is relevant and necessary to accomplish a purpose of the Corporation required to be accomplished by statute or by executive order of the President, as prescribed by 5 U.S.C. 522a(e)(1).
(b) The Corporation shall take the action specified in paragraph (a) of this section within 30 days of receipt of a request for amendment of a record, unless unusual circumstances preclude completion of the action within that time. If the expected completion date for the action, as indicated in the acknowledgement provided pursuant to § 903.5 cannot be met, the individual shall be advised of the delay and of a revised date when action is expected to be completed. If necessary for an accurate review of the record, the Corporation will seek, and the individual will supply, additional information in support of his or her request for amending the record.
(c) If the Corporation agrees with all or any portion of an individual’s request to amend a record, the Corporation will so advise the individual in writing, and amend the record to the extent agreed to by the Corporation. Where an accounting of disclosures has been kept, the Corporation will advise all previous recipients of the record of the fact that the amendment was made and the substance of the amendment.
(d) If the Corporation disagrees with all or any portion of an individual’s request to amend a record, the Corporation shall:
(1) Advise the individual of its adverse determination and the reasons therefor, including the criteria used by the Corporation in conducting the review;
(2) Inform the individual that he or she may request a review of the adverse determination by the Executive Director of the Corporation, or by an officer of the Corporation designated by the Executive Director; and,
(3) Advise the individual of the procedures for requesting such a review including the name and address of the official to whom the request should be directed.
(e) If the Corporation is apprised by another agency of any corrections or other amendments made to a record contained in the Corporation’s system of records, the Corporation will promptly amend its record and advise in writing all previous recipients of the record of the fact that the amendment was made and the substance of the amendment.
§ 903.9 Appeal of initial adverse determination of request for amendment of record.
(a) After receipt by an individual of notice of an adverse determination by the Privacy Protection Officer concerning a request to amend a record, the individual may, within 60 working days after the date of receipt of the notice, appeal the determination by seeking a review by the Executive Director of the Corporation, or by an officer of the Corporation designated by him. The appeal shall be in writing, mailed or delivered to the Executive Director, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW, Suite 1220 North, Washington, DC 20004. The appeal shall identify the record in the same manner as it was identified in the original request, shall indicate the dates of the original request and of the adverse determination and shall indicate the expressed basis for that determination. In addition, the appeal shall state briefly the reasons why the adverse determination should be reversed.
(b) Not later than 30 days after receipt of an appeal, the Executive Director, or an officer of the Corporation designated by him, will complete a review of the appeal and the initial determination, and either: (1) Determine that the appeal should be granted, take the appropriate action with respect to the record in question, and notify the individual accordingly; or, (2) determine that the appeal should be denied.
(c) The reviewing official may, at his or her option, request from the individual such additional information as is deemed necessary to properly conduct the review. If additional time is required, the Executive Director may, for good cause shown, extend the period for action beyond the 30 days specified above. The individual will then be informed in writing of the delay and the reasons therefor, and of the approximate date on which action is expected to be completed.
(d) If the reviewing official denies the appeal, he or she shall advise the individual in writing:
(1) Of the decision and the reasons for reaching it;
(2) That the denial of the appeal is a final agency action entitling the individual to seek judicial review in the appropriate district court of the United States, as provided in 5 U.S.C. 552a(g); and,
(3) That the individual may file with the Corporation a concise statement setting forth the reasons for his or her disagreement with the refusal of the Corporation to amend the record in question.
(e) Any individual having received notices of a denial of an appeal to amend a record may file a statement of disagreement with the Executive Director not later than 60 working days from the date of receipt of the notice. Such statements shall ordinarily not exceed one page in length, and the Corporation reserves the right to reject statements of excessive length. Upon receipt of a proper and timely statement of disagrement, the Corporation will clearly annotate the record in question to indicate the portion of the record which is in dispute. In any subsequent disclosure containing information about which the individual has filed a statement of disagreement, the Corporation will provide a copy of the statement together with the record to which it pertains. In addition, prior recipients of the disputed record will be provided with a copy of statements of disagreement to the extent that an accounting of disclosures was maintained. If the Corporation deems it apropriate, it may also include in any disclosure its own concise statement of the reasons for not making the amendments requested.
§ 903.10 Disclosure of records to persons or agencies.
(a) The Corporation will not disclose any record which is contained in a system of records, by any means of communication to any person or to another agency except:
(1) Pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains;
(2) To those officers and employees of the Corporation who have a need for the record in the performance of their duties;
(3) When required under 5 U.S.C. 522 (The Freedom of Information Act); or
(4) Pursuant to the conditions of disclosure contained in 5 U.S.C. 552a(b)(3) through 5 U.S.C. 522a(b)(11).
(b) The Privacy Protection Officer of the Corporation shall keep an accounting of each disclosure made pursuant to paragraph (a)(4) of this section, in accordance with 5 U.S.C. 552a(c). Except for disclosures made pursuant to 5 U.S.C. 552a(b)(7), the Privacy Protection Officer shall make the accounting kept under this paragraph available to an individual to whom the record pertains, upon his or her request. An individual requesting an accounting of disclosures should do so at the place, times and in the manner specified in § 903.3 (a) and (b).
§ 903.11 Routine uses of records maintained in the system of records.
(a) It shall be a routine use of the records in this system of records to disclose them to the Department of Justice when:
(1) The Corporation, or any component thereof; or
(2) Any employee of the Corporation in his or her official capacity; or
(3) Any employee of the Corporation in his or her individual capacity where the Department of Justice has agreed to represent the employee; or
(4) The United States, where the Corporation determines that litigation is likely to affect the Corporation or any of its components, is a party to litigation or an interest in such litigation, and the use of such records by the Department of Justice is deemed by the Corporation to be relevant and necessary to the litigation, provided, however, that in each case, the Corporation determines that disclosure of the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which the records were collected.
(b) It shall be a routine use of records maintained by the Corporation to disclose them in a proceeding before a court or adjudicative body before which the Corporation is authorized to appear, when:
(1) The Corporation, or any component thereof; or
(2) Any employee of the Corporation is his or her individual capacity;
(3) Any employee of the agency in his or her individual capacity where the Department of Justice has agreed to represent the employee; or
(4) The United States, where the Corporation determines that litigation is likely to affect the Corporation or any of its components is a party to litigation or has an interest in such litigation and the Corporation determines that use of such records is relevant and necessary to the litigation, provided, however, that, in each case, the Corporation determines that disclosure of the records to the Department of Justice is a use of the information contained in the records that is compatible with the purpose for which the records were collected.
§ 903.12 Fees for furnishing and reproducing records.
(a) Individuals will not be charged a fee for:
(1) The search and review of the record;
(2) Any copies of the record produced as a necessary part of the process of making the record available for access;
(3) Any copies of the requested record when it has been determined that access can only be accomplished by providing a copy of the record through the mail. The Privacy Protection Officer may provide additional copies of any record without charge when it is determined that it is in the interest of the Government to do so.
(b) Except as provided in paragraph (a) of this section, fees will be charged for the duplication of records at a rate of 10¢ per page. If it is anticipated that the total fee chargeable to an individual under this subpart will exceed $25, the Corporation shall promptly notify the requester of the anticipated cost. An advance deposit equal to 50% of the anticipated total fee will be required unless waived by the Privacy Protection Officer. In notifying the requester of the anticipated fee, the Privacy Protection Officer shall extend an offer to the requester to consult so that the request might be reformulated in a manner which will reduce the fee, yet still meet the needs of the requester.
(c) Fees must be paid in full prior to delivery of the requested copies. Remittances may be in the form of cash, personal check, bank draft or a postal money order. Remittances, other than cash shall be made payable to the Treasurer of the United States.
§ 903.13 Penalties.
The provision of 5 U.S.C. 552a(i), as added by section 3 of the Privacy Act, make it a misdemeanor subject to a maximum fine of $5,000, to knowingly and willfully request or obtain any record concerning an individual from an agency under false pretenses. Similar penalties attach for violations by agency officers and employees of the Privacy Act or regulations established thereunder.
PART 904—UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS
§ 904.1 Uniform relocation assistance and real property acquisition.
Regulations and procedures for complying with the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 91-646, 84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface Transportation and Uniform Relocation Assistance Act of 1987 (title IV of Pub. L. 100-17, 101 Stat. 246-255, 42 U.S.C. 4601 note) are set forth in 49 CFR part 24.
PART 905—STANDARDS OF CONDUCT
Subpart A—General Provisions
§ 905.735-101 Principles and purpose.
In order to assure that the business of the Pennsylvania Avenue Development Corporation is conducted effectively, objectively, and without improper influence or appearance thereof, all employees and special Government employees must observe unquestionable standards of integrity and conduct. Employees and special Government employees shall not engage in criminal, infamous, dishonest, immoral, or disgraceful conduct or other conduct prejudicial to the Government. All employees and special Government employees must avoid conflicts of private interest with their public duties and responsibilities. They must consider the propriety of any action in relation to general ethical standards of the highest order, so that public confidence in the integrity of the Government will not be impaired. Certain standards are set by law. Others are set by regulation and by policy. This part incorporates by reference applicable general standards of conduct and prescribes additional necessary elements. Taken together, this part constitutes the Corporation’s regulations on this subject. Failure to observe any of the regulations in this part is cause for remedial action.
§ 905.735-102 Adoption of regulations.
Under the authority of 5 CFR 735.104(f), the Corporation adopts the following sections of the Civil Service Commission regulations on “Employee Responsibilities and Conduct” found in part 735 of title 5, Code of Federal Regulations: §§ 735.202 (a), (d), (e), (f) through 735.210; 735.302; 735.303(a); 735.304; 735.305(a); 735.306; 735.404 through 735.411; and 735.412 (b) and (d).
§ 905.735-103 Definitions.
As used in this part:
(a) Board Member means any member of the Board of Directors of the Pennsylvania Avenue Development Corporation, appointed or serving under section 3, Pub. L. 92-578, 86 Stat. 1267 (40 U.S.C. 872).
(b) Chairman means the Chairman of the Board of Directors and President of the Corporation.
(c) Conflict means the subordination of public responsibilities to private interests, and includes the appearance of such subordination.
(d) Consultant means an individual who serves as an advisor to an officer or division of the Corporation, as distinguished from an officer or employee who carries out the agency’s duties and responsibilities. He gives his views or opinions on problems or questions presented him by the Corporation, but he neither performs nor supervises performance of operating functions. Ordinarily, he is expert in the field in which he advises, but he need not be a specialist. His expertness may lie in his possession of a high order of broad administrative, professional, or technical experience indicating that his ability and knowledge make his advice distinctively valuable to the agency. (Chapter 304, Federal Personnel Manual).
(e) Corporation means the Pennsylvania Avenue Development Corporation, created by the Pennsylvania Avenue Development Corporation Act of 1972, Pub. L. 92-578, 86 Stat. 1266 (40 U.S.C. 871).
(f) Employee means an officer or employee of the Corporation, but does not include a special Government employee as defined herein. The term includes those Board Members who are determined to be officers or employees of the executive or legislative branches of the United States or of the District of Columbia. The term does not include elected officials.
(g) Executive order means Executive Order 11222 of May 8, 1965.
(h) Expert means a person with excellent qualifications and a high degree of attainment in a professional, scientific, technical, or other field. His knowledge and mastery of the principles, practices, problems, methods, and techniques of his field of activity, or of a specialized area in the field, are clearly superior to those usually possessed by ordinarily competent individuals in that activity. His attainment is such that he usually is regarded as an authority or as a practitioner of unusual competence and skill by other persons in the profession, occupation, or activity. (Chapter 304, Federal Personnel Manual.)
(i) Head of the agency means the Chairman.
(j) Person means an individual, a corporation, a company, an association, a firm, a partnership, a society, a joint stock company, or any other institution or organization.
(k) Special Government Employee means an officer or employee of the Corporation who is retained, designated, appointed or employed to perform, with or without compensation, for not more than 130 days during any period of 365 consecutive days, temporary duties either on a full time or intermittent basis (18 U.S.C. 202(a)). The term includes those Board Members who are appointed from private life and required to file a statement of financial interests with the Chairman of the Civil Service Commission pursuant to part IV of the Executive order, or who are determined to be special government employees of the executive or legislative branches of the United States or the District of Columbia.
§ 905.735-104 Applicability.
This part applies to each employee and to each special Government employee of the Corporation as defined herein and supplements the Executive order and part 735 of title 5, Code of Federal Regulations, promulgated by the Civil Service Commission on employee responsibilities and conduct.
§ 905.735-105 Designation of counselor.
In accordance with 5 CFR 735.105(a), the General Counsel of the Corporation is designated to be Ethics Counselor and shall serve as the Corporation’s liaison with the Civil Service Commission for matters covered in this part.
§ 905.735-106 Notification to employees and special Government employees.
(a) At the time these regulations are published, or amended, and not less often than once annually thereafter, the Corporation shall furnish each employee and special Government employees with a copy of the regulations. The Administrative Officer shall insure that each newly hired employee and special Government employee is given a copy of these regulations prior to or at the time of entry on duty.
(b) All employees and special Government employees will be advised by the Corporation of the availability of counseling regarding the provisions of this part.
§ 905.735-107 Review of statements of employment and financial interests.
The Ethics Counselor of the Corporation shall review each statement of employment and financial interests submitted under § 905.735-402 or § 905.735-403, except his own and those statements of special Government employees who file with the Chairman of the Civil Service Commission. When review discloses a conflict between the interests of an employee or special Government employee of the Corporation and the performance of his services for the Corporation, the Ethics Counselor shall bring the conflict to the attention of the employee or special Government employee, grant the individual an opportunity to explain the conflict, and attempt to resolve it. If the conflict cannot be resolved, the Ethics Counselor shall forward a written report on the conflict to the Chairman, recommending appropriate action. The Chairman shall review the report, solicit an explanation from the individual, and seek resolution of the conflict.
§ 905.735-108 Remedial and disciplinary action.
(a) In addition to any penalties prescribed by law, the Chairman, after review and consideration of any explanation given by an employee or special Government employee concerning a conflict of interest, may institute appropriate remedial action to resolve or otherwise eliminate the conflict. Appropriate remedial action may include, but is not limited to:
(1) Divestment by the employee or the special Government employee of the conflicting interest;
(2) Disqualification of the individual from a particular assignment;
(3) Changes in the assigned duties of the individual; or
(4) Disciplinary action.
(b) Where the situation warrants some form of disciplinary action, the Chairman may choose from a wide range including a warning or reprimand, suspension, reduction in grade or pay, or termination of employment. The disciplinary action selected should reflect the character and degree of the offense which demands such action and should be reasonable in light of that offense.
(c) Remedial action, whether disciplinary or otherwise, shall be effected in accordance with applicable laws, Executive orders, and regulations.
Subpart B—Conduct and Responsibilities of Employees
§ 905.735-201 General standards of conduct.
(a) All employees shall conduct themselves on the job so as to efficiently discharge the work of the Corporation. Courtesy, consideration, and promptness are to be observed in dealing with the public, Congress, and other governmental agencies.
(b) All employees shall conduct themselves off the job so as not to reflect adversely upon the Corporation or the Federal service.
(c) Employee conduct shall exemplify the highest standards of integrity. Employees shall avoid any action, whether or not specifically prohibited by this part, which might result in, or create the appearance of:
(1) Using public office for private gain;
(2) Giving preferential treatment to any person;
(3) Impeding Government efficiency or economy;
(4) Losing complete independence or impartiality;
(5) Making a Government decision outside official channels; or
(6) Affecting adversely the confidence of the public in the integrity of the Government.
§ 905.735-202 Gifts, entertainment, and favors.
Pursuant to paragraph (b) of 5 CFR 735.202, the following exceptions to the restriction of paragraph (a) of that section are authorized. Employees may:
(a) Accept gifts and other things of value under circumstances which arise from an obvious family or personal relationship(s) (such as between the parents, children, or spouse of the employee and the employee), when the circumstances make it clear that it is those relationships rather than the business of the persons concerned which are the motivating factors;
(b) Accept food and refreshments of nominal value on infrequent occasions in the ordinary course of a luncheon, dinner, or other meeting, or on an inspection tour where an employee may properly be in attendance;
(c) Accept loans from banks or other financial institutions on customary terms to finance proper and usual activities of employees, such as home purchase;
(d) Accept unsolicited advertising or promotional materials, such as pens, pencils, note pads, calendars and other items of nominal intrinsic value;
(e) Participating without payment in privately funded activities in the Washington metropolitan area if: (1) An invitation is addressed to the Chairman or Executive Director of the Corporation and approved by either of them; (2) no provision for individual payment is readily available; and (3) the activities are limited to ceremonies of interest to both the local community and the Corporation (such as ground breakings or openings), or are sponsored or encouraged by the Federal or District Government as a matter of policy; and,
(f) Participate in widely attended lunches, dinners, and similar gatherings sponsored by industrial, commercial, technical and professional associations, or groups, for discussion of matters of interest both to the Corporation and the public. Participation by an employee at the host’s expense is appropriate if the host is an association or group and not an individual.
§ 905.735-203 Outside employment and other activity.
As provided in 5 CFR 735.203, an employee of the Corporation may engage in outside employment or other outside activity not incompatible with the full and proper discharge of the duties and responsibilities of his Government employment. An employee who proposes to engage in outside employment shall report that fact in writing to his supervisor prior to undertaking such employment.
§ 905.735-204 Disclosure of information.
(a) Every employee who is involved in the development, maintenance or use of Corporation records containing information about individuals shall familiarize himself with the requirements and penalties of the Privacy Act of 1974 (5 U.S.C. 552a) and Corporation regulations (36 CFR part 903) promulgated thereunder concerning the utilization of and access to such records.
(b) Every employee is directed to cooperate to the fullest extent possible in discharging the requirement of the Freedom of Information Act (5 U.S.C. 522) and Corporation regulations promulgated thereunder (36 CFR part 902). Every effort should be made to furnish service with reasonable promptness to persons who seek access to Corporation records and information.
§ 905.735-205 Purchase of Government-owned property.
Employees of the Corporation and members of their immediate families may purchase Government-owned personal property when it is offered for sale by the General Services Administration or any Federal agency other than the Corporation (41 CFR 101-45.302).
Subpart C—Conduct and Responsibilities of Special Government Employees
§ 905.735-301 General standards of conduct.
(a) Special Government employees of the Corporation shall adhere to applicable regulations adopted under § 904.735-102, except 5 CFR 735.203(b). In addition, the standards of conduct set forth in §§ 905.735-201, 905.735-204, and 905.735-205 shall apply to special Government employees.
(b) Special Government employees of the Corporation may teach, lecture, or write consistent with the provisions of 5 CFR 735.203(c).
(c) Pursuant to 5 CFR 735.305(b), the provisions concerning gifts, entertainment, and favors set forth in § 905.735-202 are hereby made applicable to special Government employees.
Subpart D—Special Standards Applicable to Certain Board Members
§ 905.735-401 Standards.
Section 3(c)(8) of the Pennsylvania Avenue Development Corporation Act of 1972, Pub. L. 92-578, 86 Stat. 1267 (40 U.S.C. 872(c)(8)) specifies that the eight members appointed to the Board by the President from private life, at least four of whom shall be residents of the District of Columbia, “shall have knowledge and experience in one or more fields of history, architecture, city planning, retailing, real estate, construction or government.” As a result of these prerequisites for appointment of a private member to the Board of Directors, conflicts could arise for these Board Members as the Corporation proceeds with various development activities. Accordingly, Board Members should perform their responsibilities for the operation and management of the Corporation consistent with these regulations, and other applicable Federal laws and regulations, and consistent with the highest level of fiduciary responsibility.
§ 905.735-402 Advice and determination.
The Corporation’s Ethics Counselor is readily available for consultation when a Board Member seeks advice as to the appropriateness of his actions in light of this part, the Executive order, or title 18 U.S.C., chapter 11. A Board Member has an affirmative duty to advise the Ethics Counselor of any potential conflict of interest which may arise with the individual’s participation in any particular matter before the Corporation. If advised to do so, the Board Member should submit to the Chairman for determination the question of whether or not the conflict will disqualify the Board Member from participating in the action to be taken by the Corporation. Under the authority delegated to the Chairman pursuant to 18 U.S.C. 208(b), the Chairman may find that the Board Member need not be disqualified from participating in the particular matter, if:
(a) The Board Member makes a full disclosure of the financial interest; and
(b) The Chairman furnishes him with a written determination in advance of the action that the interest is not so substantial as to be deemed likely to affect the integrity of the services which the Government may expect from the Board Member. Requests for similar determinations for conflicts posed by the financial interests of the Chairman himself shall be submitted to the Chairman of the Civil Service Commission.
Subpart E—Statements of Employment and Financial Interests
§ 905.735-501 Form and content of statements.
Statements of employment and financial interests required to be submitted under this subpart by employees and special Government employees shall contain the information required in the formats prescribed by the Civil Service Commission in the Federal Personnel Manual.
§ 905.735-502 Statements of employment and financial interests by employees.
(a) Employees of the Corporation in the following named positions shall prepare and submit statements of employment and financial interests:
(1) Executive Director;
(2) Assistant Director Legal—General Counsel;
(3) Assistant Director/Finance;
(4) Development Director;
(5) Secretary of the Corporation Administrative Officer;
(6) Construction Manager;
(7) Senior Architect/Planner;
(8) Chief, Real Estate Operations;
(9) Any Contracting Officer of the Corporation; and
(10) Any employee classified as a GS-13 or above whose duties and responsibilities are such that the ethics counselor determines a statement should be filed.
(b) Each statement of employment and financial interests required by this section, except that of the General Counsel, shall be submitted to the Ethics Counselor, Office of the General Counsel, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004. The General Counsel, as Ethics Counselor, shall submit his statement directly to the Chairman for review.
(c) An employee who believes that his position has been improperly included in this section as one requiring the submission of a statement of employment and financial interests may obtain a review of this determination upon a written request to the Chairman.
§ 905.735-503 Statements of employment and financial interests by special Government employees.
All special Government employees shall submit a statement of employment and financial interest prior to beginning employment or service with the Corporation. Each statement shall be submitted to the Ethics Counselor, Office of the General Counsel, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, D.C. 20004, except that the statements of Board Members appointed from private life shall be filed with the U.S. Civil Service Commission.
§ 905.735-504 Procedures for obtaining statements.
(a) Upon the adopting of the regulations of this part, the Ethics Counselor shall deliver to the incumbent of each position named in § 905.735-402 and to each special Government employee, two copies of the appropriate form for filing a statement of employment and financial interests. An enclosure with the forms shall advise that:
(1) The original of the completed form must be returned in a sealed envelope, marked “Personal—In Confidence,” to the Ethics Counselor within the time specified by the Ethics Counselor;
(2) The services of the ethics counselor are available to advise and assist in preparation of the statement;
(3) Any additions or deletions to the information furnished must be reported in a supplementary statement at the end of the calendar quarter in which the change occurs; or in the case of a special Government employee, at the time the change occurs; and
(4) No later than June 30 of each year, all special Government employees and employees required to file under § 905.735-402(a) shall file an annual supplementary statement to update the information previously filed.
(b) The Administrative Officer shall be responsible for assuring that a completed statement of employment and financial interests is obtained from each special Government employee prior to the beginning of employment or service with the Corporation. The Administrative Officer shall promptly forward the statements to the Ethics Counselor for review.
§ 905.735-505 Confidentiality of statements.
The Ethics Counselor shall hold in confidence each statement of employment and financial interests, and each supplementary statement within his control. Access to or disclosure of information contained in these statements shall not be allowed, except as the Commission or the Ethics Counselor determine for good cause shown, consistent with the Privacy Act of 1974 (5 U.S.C. 552a), and the regulations and pertinent notices of systems of records prepared by the Civil Service Commission and the Corporation in accordance with that Act.
Subpart F—Conduct and Responsibilities of Former Employees—Enforcement
§ 905.737-101 Applicable provisions of law.
Former employees of the Corporation must abide by the provisions of 18 U.S.C. 207 and 5 CFR 737.1 through 737.25, which bar certain acts by former Government employees that may reasonably give the appearance of making unfair use of prior Government employment and affiliations. Violation of those provisions will give rise to Corporation enforcement proceedings as provided in § 905.737-102, and may also result in criminal sanctions, as provided in 18 U.S.C. 207.
§ 905.737-102 Enforcement proceedings.
(a) Delegation. The Chairman of the Corporation may delegate his or her authority under this subpart.
(b) Initiation of disciplinary hearing. (1) Information regarding a possible violation of 18 U.S.C. 207 or 5 CFR part 737 should be communicated to the Chairman. The Chairman shall promptly initiate an investigation to determine whether there is reasonable cause to believe that a violation has occurred.
(2) On receipt of information regarding a possible violation of 18 U.S.C. 207, and after determining that such information appears substantiated, the Chairman of the Corporation shall expeditiously provide such information, along with any comments or regulations of the Corporation, to the Director of the Office of Government Ethics and to the Criminal Division, Department of Justice. The Corporation shall coordinate any investigation with the Department of Justice to avoid prejudicing criminal proceedings, unless the Department of Justice communicates to the Corporation that it does not intend to initiate criminal prosecution.
(3) Whenever the Corporation has determined after appropriate review, that there is reasonable cause to believe that a former employee has violated 18 U.S.C. 207 or 5 CFR part 737, it shall initiate a disciplinary proceeding by providing the former employee with notice as defined in paragraph (c) of this section.
(4) At each stage of any investigation or proceeding under this section, the Chairman shall take whatever steps are necessary to protect the privacy of the former employee. Only those individuals participating in an investigation or hearing shall have access to information collected by the Corporation pursuant to its investigation of the alleged violation.
(c) Adequate notice. (1) The Corporation shall provide the former employee with adequate notice of its intention to institute a proceeding and an opportunity for a hearing.
(2) Notice to the former employee must include:
(i) A statement of the allegations (and the basis thereof) sufficiently detailed to enable the former employee to prepare an adequate defense;
(ii) Notification of the right to a hearing;
(iii) An explanation of the method by which a hearing may be requested; and
(iv) Notification that if a hearing is not requested within thirty days of receipt of notice, the Corporation will issue a final decision finding the alleged violations to have occurred.
(3) Failure to request a hearing within thirty days of the receipt of notice will be deemed an admission of the allegations contained in the notice and will entitle the Corporation to issue a final decision finding the alleged violations to have occurred.
(d) Presiding official. (1) The presiding official at proceedings under this subpart shall be the Chairman, or an individual to whom the Chairman has delegated authority to make an initial decision (hereinafter referred to as examiner).
(2) An examiner shall be an employee of the Corporation who is familiar with the relevant provisions of law and who is otherwise qualified to carry out the duties of that position. He or she shall be impartial. No individual who has participated in any manner in the decision to initiate the proceedings may serve as an examiner.
(e) Time, date and place. (1) The hearing shall be conducted at a reasonable time, date, and place.
(2) On setting a hearing date, the presiding official shall give due regard to the former employee’s need for:
(i) Adequate time to prepare a defense properly; and
(ii) An expeditious resolution of allegations that may be damaging to his or her reputation.
(f) Hearing rights. A hearing shall include the following rights:
(1) To represent oneself or to be represented by counsel;
(2) To introduce and examine witnesses and to submit physical evidence;
(3) To confront and cross-examine adverse witnesses;
(4) To present oral argument; and
(5) To receive a transcript or recording of the proceedings, on request.
(g) Burden of proof. In any hearing under this subpart, the Corporation has the burden of proof and must establish substantial evidence of a violation.
(h) Hearing decision. (1) The presiding official shall make a determination exclusively on matters of record in the proceeding, and shall set forth in the decision all findings of fact and conclusions of law relevant to the matters at issue. If the hearing is conducted by the Chairman, the resulting written determination shall be an initial decision.
(2) Within thirty days of the date of an initial decision, either party may appeal the decision to the Chairman. The Chairman shall base his or her decision on such appeal solely on the record of the proceedings on those portions thereof cited by the parties to limit the issues.
(3) If the Chairman modifies or reverses the initial decision, he or she shall specify such findings of fact and conclusions of law as are different from those of the examiner.
(4) If no appeal is taken from an initial decision within thirty days, the initial decision shall become a final decision.
(i) Sanctions. The Chairman shall take appropriate action in the case of any individual who is found to be in violation of 18 U.S.C. 207 or 5 CFR part 737 after a final decision by:
(1) Prohibiting the individual from making, on behalf of any other person except the United States, any formal or informal appearance before, or, with the intent to influence, any oral or written communication to, the Corporation on any matter of business for a period not to exceed five years, which may be accomplished by directing employees of the Corporation to refuse to participate in any such appearance or to accept any such communication; or
(2) Taking other appropriate disciplinary action.
(j) Judicial review. Any person found by the Corporation to have participated in a violation of 18 U.S.C. 207 or 5 CFR part 737 may seek judicial review of the determination in an appropriate United States District Court.
PART 906—AFFIRMATIVE ACTION POLICY AND PROCEDURE
Subpart A—Development Program
§ 906.1 Purpose and policy.
(a) One of the objectives stated in the Congressionally approved Pennsylvania Avenue Plan—1974 is insuring that minority businesses, investors, and workers have an opportunity to share in the benefits that will occur as a result of redevelopment. Accordingly, the Corporation will take affirmative action to assure full minority participation in activities and benefits that result from implementation of The Pennsylvania Avenue Plan—1974.
(b) It is the policy of the Pennsylvania Avenue Development Corporation to foster a progessive Affirmative Action Program that affords minorities, women, handicapped persons, and Vietnam era veterans a fair and meaningful share in the opportunities generated by the development activities of the Corporation.
(c) It is mandatory for developers who respond to a solicitation for proposals made by the Corporation to comply with the rules stated in subpart A of part 906.
(d) It is mandatory for developers who receive property interests of ten percent (10%) or more of the area of a development parcel from the Corporation to comply with the rules stated in subpart A of part 906.
(e) The Corporation will encourage any entity not described in paragraphs (c) and (d) of this section to comply with the requirements set forth in this subpart A of part 906.
§ 906.2 Definitions.
As used in this part:
(a) Affirmative Action Plan means a plan which at a minimum includes:
(1) A statement of the affirmative action policy of the development team and a list of the names of the members of the development team including equity investors, and identification of minority owned businesses and investors;
(2) A contracting and purchasing plan;
(3) A leasing plan;
(4) A personnel plan;
(5) An equity investment plan;
(6) The goals, timetables and strategy for achieving the goals of the developer;
(7) A list of specific, quantifiable committed opportunities; and
(8) Designation of an Affirmative Action Officer.
(b) Committed Opportunity means an opportunity set aside and committed for the sole involvement of a woman, minority group member, Vietnam era veteran, handicapped person, or minority owned business, including opportunities for training and equity investment.
(c) Contracting and purchasing plan means a plan for the subject project which at a minimun includes the following:
(1) A list of all minority enterprises and minority owned businesses that are involved in the development proposal or its implementation;
(2) An analysis of the types of contracts and purchases that will be required by the development team in order to implement the development through and including operation of the completed development;
(3) A list of goals and timetables by category of purchase or contract for involvement of minority owned businesses in the development process;
(4) Strategy for achieving the goals established; and
(5) A list of committed opportunities for the involvement of minority owned businesses in the development process.
(d) Developer means a person partnership, company, corporation, association, or other entity that develops a new structure on a site or substantially renovates a structure on a site within the Corporation’s development area where the site either: (1) Has been offered to the public by the Corporation for development, or (2) the Corporation has transferred real property rights that equal or exceed ten percent (10%) of the area of the development parcel.
(e) Development parcel is an area of land established by the Corporation to be a minimum developable site under The Pennsylvania Avenue Plan—1974, as amended, and The Planning and Design Objectives, Controls, and Standards of the Corporation (36 CFR part 920 et seq.).
(f) Development team means the group that submits a proposal to develop a parcel including developers, architects, engineers, lawyers, financial institutions, insurance companies, and others who help formulate, develop, and otherwise make a proposal to the Corporation.
(g) Equity Investment Plan means a plan for the subject project which at a minimum includes the following:
(1) A statement as to whether or not equity investment has been or will be solicited to implement the subject project;
(2) A statement as to whether or not a joint venture has been or will be formed to implement the subject project;
(3) If equity investment has been solicited or if a joint venture has been formed, a statement of the efforts made to involve members of minority groups and women when these opportunities were offered;
(4) If equity investment will be solicited, or a joint venture will be formed, a plan to involve members of minority groups and women when these opportunities are offered, including a list of committed opportunities;
(5) A list of goals and a timetable for securing participation of members of minority groups and women in equity investment and joint venture.
(h) Handicapped person means any person who: (1) Has a physical or mental impairment that substantially limits one or more of the person’s major life activities, (2) has a record of such impairment.
(i) Leasing plan means a plan for the subject project which at a minimum includes the following:
(1) A retail plan showing the types of retail businesses to be included in the project and a plan for the types of uses for the balance of the development;
(2) Goals and methods for inclusion of minority enterprises as tenants in the project;
(3) Committed opportunities for leasing to minority enterprises.
(j) Minority Enterprise means any enterprise that is either a minority owned business or a not for profit or non-profit organization (as defined in 26 U.S.C. 501(c)(3) or (c)(6)) and also fulfills one or more of the following criteria:
(1) The Board of Directors or equivalent policy making body is comprised of members, a majority of whom are minorities or women and the chief executive officer of the organization is a minority group member or a woman; or
(2) The objectives of the organization as described in its charter are substantially directed toward the betterment of minorities or women.
(k) Minority group member means any person residing in the United States who is Negro, Hispanic, Oriental, Native American, Eskimo, or Aleut, as defined below:
(1) Negro—is an individual of the Negro race of African origin;
(2) Hispanic—is an individual who is descended from and was raised in or participates in the culture of Spain, Portugal, or Latin America, or who has at least one parent who speaks Spanish or Portuguese as part of their native culture;
(3) Oriental—is an individual of a culture, origin, or parentage traceable to the areas south of the Soviet Union, East of Iran, inclusive of the islands adjacent thereto, located in the Pacific including, but limited to, Taiwan, Indonesia, Japan, Hawaii, and the Philippines, together with the islands of Polynesia;
(4) Native American—is an individual having origins in any of the original people of North America, who is recognized as an Indian by either a tribe, tribal organization, or suitable authority in the community. For purposes of this section a suitable authority in the community may be an educational institution, a religious organization, or a state or Federal agency.
(5) Eskimo—is an individual having origins in any of the original peoples of Alaska;
(6) Aleut—is an individual having origins in any of the original peoples of the Aleutian Islands.
(l) Minority owned business means a business that is:
(1) A sole proprietorship owned by a minority group member or a woman;
(2) A business entity at least 50 percent of which is owned by minority group members or women;
(3) A publicly owned business at least 51 percent of the stock of which is owned by minority group members or women;
(4) A certified minority owned business as evidenced by a certificate satisfactory to the Corporation’s Affirmative Action Officer, and signed by the owner or the executive officer of the minority owned business.
(m) Personnel plan means a plan for the subject project which at a minimum includes the following:
(1) An analysis of participation of minority group members, women, Vietnam era veterans, and handicapped persons in the development project including an evaluation by category of employment, i.e., professional and managerial, skilled, semi-skilled, trainee, and other, and the number of employees in each category;
(2) An analysis of the salaries of minority group members, women, handicapped persons, and Vietnam era veterans showing the relative position of these employees with those not covered by the Affirmative Action Plan;
(3) Goals and timetables for employment by category and salary level of minorities, women, Vietnam era veterans, and handicapped persons employed for the development parcel;
(4) Strategy for achieving the goals established (see Exhibit B);
(5) A list of committed opportunities for the employment of minority group members, women, Vietnam era veterans, and handicapped persons.
(n) Vietnam era veteran means a person who:
(1) Served on active duty for a period of more than 180 days, any part of which occurred during the Vietnam era, and was discharged or released therefrom with other than a dishonorable discharge; or
(2) Was discharged or released from active duty for a service-connected disability if any part of such active duty was performed during the Vietnam era.
§ 906.3 Procedures.
(a) Affirmative Action Plans must be submitted to the Corporation at the following times:
(1) At the time a response is submitted to the Corporation’s solicitation for proposals, the response must include an Affirmative Action Plan;
(2) If a property right exceeding 10 percent of the area of the development parcel is made available by the Corporation, but without the Corporation having made a solicitation for proposals, the developer must submit an Affirmative Action Plan within 30 days after the start of negotiations with the Corporation.
(b) Affirmative Action Plans will be reviewed as follows:
(1) Each Affirmative Action Plan submitted to the Corporation will be reviewed by the Corporation’s Affirmative Action Officer, or his designee.
(2) In the case of a developer who responds to a solicitation for proposals, the Affirmative Action Plan will be reviewed by the Affirmative Action Officer, and if the Plan is in substantial compliance with the goals set forth in Exhibit A, the Plan and the recommendation of the Affirmative Action Officer will be submitted to the Chairman of the Board for approval prior to the Board’s final selection.
(3) In the case of a developer who receives 10 percent or more of the area of a development parcel from the Corporation, the Affirmative Action Plan will be reviewed by the Corporation’s Affirmative Action Officer, and if the Plan is in substantial compliance with the goals set forth in Exhibit A, the Plan and the recommendation of the Affirmative Action Officer will be submitted to the Chairman of the Board for approval within 15 days of submission.
(4) The Chairman may approve any Affirmative Action Plan that is not in substantial compliance with the goals set forth in Exhibit A, but for which the developer has documented a genuine effort to meet the goals of the regulations and complied with the spirit of the Corporation’s policy.
(5) The Chairman may, in his discretion, submit any Affirmative Action Plan to the Board of Directors for approval, if there is not substantial compliance with the goals set forth in Exhibit A.
(6) The review of the Affirmative Action Plan will determine conformity with The Pennsylvania Avenue Plan—1974, the policy of the Corporation’s Board of Directors, and the regulations and guidelines set forth in this subpart A, part 906.
(c) Revisions: (1) The Corporation may require a developer at any time prior to approval of the Affirmative Action Plan to revise the Plan for compliance with the requirements of this subpart.
(2) Each developer required to comply with this subpart must submit for approval an up-dated Affirmative Action Plan at the commencement of construction, at the commencement of occupancy, and at the commencement of operation or management of any portion of the facility by the developer or a related entity. Each revision of the Affirmative Action Plan must address all the requirements set forth in § 906.4.
(3) The Corporation’s Affirmative Action Officer will review all revisions submitted to the Corporation. If the revision is a substantial change from the originally approved Plan, the review procedures set forth in paragraph (b) of this section will be applicable. If the revision submitted is not a substantial change from the originally approved Plan, the Corporation’s Affirmative Action Officer may approve the revision.
§ 906.4 Formulation of affirmative action plan.
(a) The developer, in formulating the Affirmative Action Plan, should consider all phases of development from establishment of the development team to operation and management of the development project including each component of the project (e.g., hotel, retail, office, residential). The developer should also consider the personnel profile of project contractors, subcontractors.
(b) For each phase and each component, the developer should give consideration to creating business and employment opportunities and committed opportunities in the following:
(1) Equity participation;
(2) Professional and technical services such as legal, architectural, engineering, and financial;
(3) Purchasing materials and supplies in connection with construction and operation;
(4) Contracting for construction, operation, and maintenance; and,
(5) Financing, including construction and permanent financing, and other financial and banking services.
§ 906.5 Administration of affirmative action plan.
(a) The developer shall appoint an Affirmative Action Officer, and for projects exceeding $10 million in cost, the person appointed must have affirmative action as a primary responsibility.
(b) The developer shall report to the Corporation periodically its progress in meeting the goals and timetables in its Affirmative Action Plan with respect to its contracting and purchasing plan, leasing plan, and committed opportunities. In meeting the reporting requirements the developer shall:
(1) Count an individual only once for reporting purposes;
(2) Count an individual in the first appropriate category as follows:
(i) Minority Group Member;
(ii) Handicapped Person;
(iii) Woman;
(iv) Vietnam Era Veteran;
(3) Report the dollar amount of contracts and purchases from minority owned businesses including subcontracts;
(4) In the event 10 percent or more of the dollar amount of a contract, subcontract, or purchase from a minority owned business is performed by other than a minority owned business, the developer shall report only the dollar amount performed by the minority owned business.
§ 906.6 Implementation.
(a) Each developer’s Affirmative Action Plan will be incorporated into the real estate agreement between the developer and the Corporation.
(b) Each developer shall include a clause requiring a contracting and purchasing plan and a personnel plan in any contract exceeding $500,000.
(c) Each developer should consider including a clause requiring a contracting and purchasing plan and a personnel plan in any contract less than $500,000.
(d) In order that the Corporation may be of assistance, and to the extent practical, the developer shall notify the Corporation’s Affirmative Action Officer of any failure to meet the approved Affirmative Action Plan.
(e) The Corporation, at the request of the developer, shall provide the developer with assistance for meeting the goals set forth in the Affirmative Action Plan. Such assistance may be provided in the form of lists of minority enterprises, sources for recruiting and advertising, as well as other available information.
§ 906.7 Incentives.
(a) At the request of the developer, the Corporation may agree to deferral of a portion of rental, not to exceed 50 percent, during construction and during the first year of operation following construction of any phase of the development project. Allowable rent deferral during the construction phase will be two percent of the total base rent for each one percent of the value of all construction contracts which have been awarded to Minority Owned Businesses, not to exceed 50 percent. Rent deferral during the first year of operation following construction of any phase of the development project will be four percent for each one percent of total equity owned by minority group members, minority owned businesses, and women.
(b) Following review of Affirmative Action reports submitted to the Corporation pursuant to § 906.5(b), the Corporation will determine the developer’s compliance with the goals set forth in the approved Affirmative Action Plan. Compliance with the goals established in the Plan will be measured by adding the percentages reported including overages in each category and dividing that by the number of categories covered in the Plan.
(c) If 75 percent compliance is not achieved during any rent deferral period, the Corporation will afford the developer 120 days to achieve at least that level of compliance. If, at the end of that 120 day period, 75 percent compliance is not achieved, all rental deferral, together with interest, will be due and payable to the Corporation on the 10th day following receipt of written notice that payment of the deferred rent has been accelerated.
§ 906.8 Review and monitoring.
The Corporation, either by its employees, consultants, or other government agency, shall analyze and monitor compliance with the developer’s approved Affirmative Action Plan. The Corporation shall rely on the reports submitted by the developer. However:
(a) Further investigation by the Corporation may be undertaken if problems are brought to the attention of the Corporation through any reliable source, or if any formal complaints are filed against the developer that relate to performance of the Affirmative Action Plan; and
(b) The Corporation reserves the right to audit the records of the developer that pertain to any report submitted to the Corporation.
§ 906.9 Voluntary compliance.
The Corporation will encourage any individual or entity not described in § 906.1(c) or (d) to submit and adopt an Affirmative Action Plan on any development project for which the Corporation’s review and approval is required to determine conformity of the development project with The Pennsylvania Avenue Plan—1974. Any such Affirmative Action Plan should accompany the development plans.
§ 906.10 Confidentiality.
All information submitted to the Corporation pursuant to this subpart A will be kept confidential, except as availability to the public may be required by the Freedom of Information Act.
Subpart B [Reserved]
Exhibit A to Part 906—Suggested Minimum Guidelines and Goals
The following are suggested for consideration by developers in formulation of minimum affirmative action goals for the development parcel:
(a) Equity participation—10 percent participation by minority group members, women, and minority owned businesses as investors in ownership of the development parcel.
(b) Contracts for professional and technical services—20 percent of the dollar value of the contracts to minority owned businesses.
(c) Persons providing professional or technical services—20 percent should be minority group members, women, handicapped persons, or Vietnam era veterans.
(d) Construction contracting—15 percent of the total dollar value to minority owned businesses. (In order to accomplish this goal, the developer must require that any prime contractor show at least 15 percent minority subcontractors unless the prime contractor is a minority contractor.)
(e) Construction employment should comply with the Washington Plan as a minimum.
(f) Purchasing—20 percent of the dollar value of all purchases of materials and supplies to minority owned businesses.
(g) Hotel employment—20 percent of all hotel employees, 15 percent of all personnel earning an excess of $2,000 a month (in 1978 dollars), and 60 percent of trainees for hotel positions should be minority group members, women, handicapped persons, or Vietnam era veterans.
(h) Leasing of space—15 percent of the retail space should be targeted for minority enterprises.
(i) Committed opportunities—should be created for professional, technical, construction, hotel, or other type operations where the representation of minority group members, women, or handicapped persons in a field is inconsistent with the demographic profile of the Washington metropolitan area.
Exhibit B to Part 906—Guidelines for Establishing Strategy To Implement Affirmative Action Personnel Plan
The following are suggested as the types of activities to be considered in the development of strategies for the affirmative action personnel plan:
(1) “Vigorous” searching for qualified minority and women applicants for job openings in professional and managerial positions, often including recruitment visits to educational institutions with large minority or female enrollments.
(2) Wide dissemination of affirmative action policy in advertisements and employment literature.
(3) Utilization of minority media in recruitment advertisements.
(4) Notification of job openings to minority community organizations and associations.
(5) Listing of all employment openings with compensation of under $20,000 per year at a local office of the State Employment Service (or union hiring hall when union labor is required).
(6) Periodic review of minority, female, Vietnam era veteran, and handcapped employees to identify underutilized and unutilized skills and knowledge as well as opportunities for reassignment.
(7) Utilization of merit promotion and on-the-job training programs to create career ladders or otherwise qualify minority, female, Vietnam era veteran, and handicapped employees for advancement.
PART 907—ENVIRONMENTAL QUALITY
§ 907.1 Policy.
The Pennsylvania Avenue Development Corporation’s policy is to:
(a) Use all practical means, consistent with the Corporation’s statutory authority, available resources, and national policy, to protect and enhance the quality of the human environment;
(b) Ensure that environmental factors and concerns are given appropriate consideration in decisions and actions by the Corporation;
(c) Use systematic and timely approaches which will ensure the integrated use of the natural and social sciences and environmental design arts in planning and decision making which may have an impact on the human environment;
(d) Develop and utilize ecological and other environmental information in the planning and development of projects implementing the Plan;
(e) Invite the cooperation and encourage the participation, where appropriate, of Federal, District of Columbia, and regional authorities and the public in Corporation planning and decision-making processes, which affect the quality of the human environment; and
(f) Minimize any possible adverse effects of Corporation decisions and actions upon the quality of the human environment.
§ 907.2 Purpose.
These regulations are prepared to supplement Council on Environmental Quality Regulations for implementing the procedural provisions of the National Environmental Policy Act of 1969, as amended, and describe how the Pennsylvania Avenue Development Corporation intends to consider environmental factors and concerns in the Corporation’s decision making process.
§ 907.3 Definitions.
(a) CEQ Regulations means the regulations for implementing the procedural provisions of the National Environmental Policy Act of 1969 as promulgated by the Council on Environmental Quality, Executive Office of the President, appearing at 40 CFR parts 1500-1509 (43 FR 55978-56007) and to which this part is a supplement.
(b) The Act of October 27, 1972 or Act means the Pennsylvania Avenue Development Corporation Act of 1972, Pub. L. 92-578, October 27, 1972, 86 Stat. 1266 (40 U.S.C. 871).
(c) The Plan means The Pennsylvania Avenue Plan—1974, prepared by the Pennsylvania Avenue Development Corporation pursuant to the Act of October 27, 1972.
(d) The Corporation means the Pennsylvania Avenue Development Corporation, a wholly owned government corporation of the United States created by the Act of October 27, 1972.
(e) Board of Directors means the governing body of the Corporation in which the powers and management of the Corporation are vested by the Act of October 27, 1972.
(f) EIS means an environmental impact statement as defined in § 1508.11 of the CEQ Regulations.
(g) Final EIS means The Final Environmental Impact Statement, dated September 1974, prepared by the Corporation on The Pennsylvania Avenue Plan—1974.
(h) Development Area means the area under the Corporation’s jurisdiction as specified in section 2(f) of the Act of October 27, 1972 and for which The Plan has been prepared and will be implemented by the Corporation.
(i) Decision Maker means the Board of Directors, unless a delegation to the Chairman, a member or committee of the Board of Directors, or the Executive Director has been made by the Bylaws of the Corporation, a resolution of the Board of Directors, or an appropriate written delegation of authority.
(j) Private Developer means an individual, firm, joint venture, or other entity other than the Corporation which seeks to construct, reconstruct, rehabilitate, or restore real property within the development area.
(k) Other terms used in this part are defined in 40 CFR part 1508 of the CEQ Regulations.
§ 907.4 Designation of responsible Corporation official.
The Development Director is the Corporation official responsible for implementation and operation of the Corporation’s policies and procedures on environmental quality and control.
§ 907.5 Specific responsibilities of designated Corporation official.
(a) Coordinate the formulation and revision of Corporation policies and procedures on matters pertaining to environmental protection and enhancement.
(b) Establish and maintain working relationships with relevant government agencies concerned with environmental matters.
(c) Develop procedures within the Corporation’s planning and decision-making processes to ensure that environmental factors are properly considered in all proposals and decisions in accordance with this part.
(d) Develop, monitor, and review the Corporation’s implementation of standards, procedures, and working relationships for protection and enhancement of environmental quality and compliance with applicable laws and regulations.
(e) Monitor processes to ensure that the Corporation’s procedures regarding consideration of environmental quality are achieving their intended purposes.
(f) Advise the Board of Directors, officers, and employees of the Corporation of technical and management requirements of environmental analysis, of appropriate expertise available, and, with the assistance of the Office of the General Counsel, of relevant legal developments.
(g) Monitor the consideration and documentation of the environmental aspects of the Corporation’s planning and decisionmaking processes by appropriate officers and employees of the Corporation.
(h) Ensure that all environmental assessments and, where required, all EIS’s are prepared in accordance with the appropriate regulations adopted by the Council on Environmental Quality and the Corporation, and are submitted with all proposed legislation.
(i) Consolidate and transmit to appropriate parties the Corporation’s comments on EIS’s and other environmental reports prepared by other agencies.
(j) Acquire information and prepare appropriate reports on environmental matters required of the Corporation. Information collection activities will be conducted in accordance with the Paperwork Reduction Act of 1980 and approval of OMB will be obtained prior to commencing such activities.
(k) Coordinate Corporation efforts to make available to other parties information and advice on the Corporation’s policies for protecting and enhancing the quality of the environment.
§ 907.6 Major decision points.
(a) The possible environmental effects of a proposed action or project must be considered along with technical, economic, and other factors throughout the decisionmaking process. For most Corporation projects there are three distinct stages in the decision making process:
(1) Conceptual or preliminary stage;
(2) Detailed planning or final approval stage;
(3) Implementation stage.
(b) Environmental review will be integrated into the decision making process of the Corporation as follows:
(1) During the conceptual or preliminary approval study stage, the responsible Corporation official shall determine whether the proposed action or project is one which is categorically excluded, requires an environmental assessment or an EIS.
(2) Prior to proceeding from the conceptual or preliminary approval stage to the detailed planning or final approval stage, an environmental assessment and the determination as to whether an EIS is required must be completed.
(3) An EIS, if determined necessary, must be completed and circulated prior to the decision to proceed from the detailed planning stage to implementation.
§ 907.7 Determination of requirement for EIS.
Determining whether to prepare an environmental impact statement is the first step in applying the NEPA process. In deciding whether to prepare an environmental impact statement, the responsible Corporation official will determine whether the proposal is one that:
(a) Normally requires an environmental impact statement.
(b) Normally does not require either an environmental impact statement or an environmental assessment (categorical exclusion).
(c) Normally requires an environmental assessment, but not necessarily an environmental impact statement.
§ 907.8 Actions that normally require an EIS.
PADC shall perform or have performed an environmental assessment to determine if a proposal requires an environmental impact statement. However, it may be readily apparent that a proposed action will have a significant impact on the environment; in such cases, an environmental assessment is not required and PADC will immediately begin to prepare or have prepared the environmental impact statement. To assist in determining if a proposal or action normally requires the preparation of an environmental impact statement, the following criteria and categories of action are provided.
(a) Criteria. Criteria used to determine whether or not actions or proposals may significantly affect the environment and therefore require an environmental impact statement are described in 40 CFR 1508.27 of the CEQ Regulations and as follows:
(1) Buildings or facades designated for retention in the Plan will be adversely affected by the proposal or action.
(2) Traffic generated by the proposal or action would represent a substantial increase over the traffic projections assessed in the Final EIS in the average daily traffic volume on avenues and streets within the Development Area or its environs;
(3) Air quality in the Development Area and its environs would be substantially affected by the proposal or action based upon the District of Columbia’s adopted standard for hydrocarbons and carbon monoxide;
(4) Solid waste disposal generated by a project of the Corporation or of a developer who is constructing, reconstructing, or rehabilitating that project, would have an adverse effect on the capacity of the relevant solid waste disposal facility and compliance with “Solid Waste Management Guidelines” of the U.S. Environmental Protection Agency and related local and regional controls;
(5) Public utilities have insufficient capacity to provide reliable service to a project within the Development Area; and
(6) A project will be inconsistent with major elements of the Zoning Regulations of the District of Columbia as they are applicable to the Development Area.
(b) Categories of action. The following categories of action normally require an environmental impact statement:
(1) Amendments or supplements to the Plan that constitute a “substantial change” to the Plan as defined in 40 U.S.C. 874(c) of the Act.
(2) Acquisition or disposal of real property by the Corporation not related to any specific decision, plan, or program adopted by the Board of Directors of the Corporation for which an environmental assessment or an assessment and an EIS has been prepared.
(3) Legislative proposals made to Congress.
(4) Funding and/or construction by the Corporation or its agents or representatives of any building, if that activity is not consistent with the Plan and the Final EIS.
§ 907.9 Preparation of an EIS.
(a) Notice of intent. When PADC decides to prepare an environmental impact statement, it shall publish a notice of intent in the
(b) Preparation. After determining that an environmental impact statement will be prepared and publishing the notice of intent, PADC will begin to prepare or have prepared the environmental impact statement. Procedures for preparing the environmental impact statement are set forth in 40 CFR part 1502, CEQ Regulations.
(c) Supplemental environmental impact statements. PADC may supplement a draft or final environmental impact statement at any time. PADC shall prepare a supplement to either the draft or final environmental impact statement when (1) substantial changes are proposed to an action contained in the draft or final EIS that are relevant to environmental concerns or there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts; or (2) actions are proposed which relate or are similar to other action(s) taken or proposed and that together will have a cumulatively significantly impact on the environment.
§ 907.10 Categorical exclusion.
The CEQ Regulations provide for the categorical exclusion (40 CFR 1508.4) of actions that do not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required for such actions.
(a) Criteria. Criteria used to determine those categories of action that normally do not require either an environmental impact statement or an environmental assessment include:
(1) The action or proposal is consistent with the Plan or the Act, and the environmental effects have been previously analyzed in the Final EIS, a supplement thereto, or in an environmental assessment or an EIS previously prepared; or
(2) The total estimated cost directly attributable to the action or proposal does not exceed $500,000; or
(3) The action or proposal is related solely to internal administrative operations of the Corporation.
(b) List of categorical exclusions. Categories of action, identified in appendix A (attached) have been determined by PADC to have no significant effect on the human environment and are therefore categorically excluded from the preparation of environmental impact statements and environmental assessments.
(c) Changes to the list of categorical exclusion. (1) The PADC List of Categorical Exclusion will be continually reviewed and refined as additional categories are identified and as experience is gained in the categorical exclusion process.
(2) Additional categories of exclusion identified will be submitted to the Chairman of the Board of Directors for review and approval, and for amendments to this part, following public comment and review by the Council on Environmental Quality.
§ 907.11 Actions that normally require an environmental assessment.
If a proposal or action is not one that normally requires an environmental impact statement, and does not qualify for categorical exclusion, PADC will prepare or have prepared an environmental assessment.
(a) Criteria. Criteria used to determine those categories of action that normally require an environmental assessment, but not necessarily an environmental impact statement, include:
(1) Potential for minor degradation of environmental quality;
(2) Potential for cumulative impact on environmental quality; and
(3) Potential for impact on protected resources.
(b) Categories of action. The following categories of action normally require the preparation of an environmental assessment.
(1) Amendments to the Plan that do not constitute a “substantial change” to the Plan.
(2) Regulations promulgated by the Corporation that have significant environmental impact on the public or persons residing in the development area including businesses.
(3) Development proposals submitted to the Corporation by private developers that are consistent with the Plan and General Guidelines prepared by the Corporation.
(4) Activities related to the Public Improvements Program of the Corporation for which no previous environmental assessment or EIS has been prepared.
(5) Contracts, work authorizations, and master agreements related to and implementing programs, policies, and proposals not categorically excluded and for which no environmental assessments or for which no environmental assessment and EIS have been previously prepared.
(6) Street closures and other rearrangements of public space which were not covered in the Plan or the Final EIS.
(7) Acquisition/disposal of personal property by the Corporation not related to any specific decision, plan, or program adopted by the Board of Directors of the Corporation for which an environmental assessment or an environmental assessment and an EIS is required to be prepared.
(8) Proposed construction of any public building within the development area by any executive agency of the United States Government, any agency or department of the District of Columbia Government, or any other public or quasi-public entity.
§ 907.12 Preparation of an environmental assessment.
(a) When to prepare. PADC will begin the preparation of an environmental assessment as early as possible after it is determined by the responsible corporation official to be required. PADC may prepare an environmental assessment at any time to assist planning and decision-making.
(b) Content and format. An environmental assessment is a concise public document used to determine whether to prepare an environmental impact statement. An environmental assessment aids in complying with the Act when no environmental impact statement is necessary, and it facilitates the preparation of an environmental impact statement, if one is necessary. The environmental assessment shall contain brief discussions of the following topics:
(1) Purpose and need for the proposed action.
(2) Description of the proposed action.
(3) Alternatives considered, including the No Action alternative.
(4) Environmental effects of the proposed action and alternative actions.
(5) Listing of agencies, organizations or persons consulted.
(6) In preparation of the environmental assessment, the most important or significant environmental consequences and effects on the areas listed below should be addressed. Only those areas which are specifically relevant to the particular proposal should be addressed. Those areas should be addressed in as much detail as is necessary to allow an analysis of the alternatives and the proposal. The areas to be considered are the following:
(i) Natural/ecological features (such as floodplain, wetlands, coastal zones, wildlife refuges, and endangered species);
(ii) Air quality;
(iii) Sound levels;
(iv) Water supply, wastewater treatment and water runoff;
(v) Energy requirements and conservation;
(vi) Solid waste;
(vii) Transportation;
(viii) Community facilities and services;
(ix) Social and economic;
(x) Historic and aesthetic; and
(xi) Other relevant factors.
(c) Finding of no significant impact. If PADC completes an environmental assessment and determines that an environmental impact statement is not required, then PADC shall prepare a finding of no significant impact. The finding of no significant impact shall be made available to the public by PADC as specified in 40 CFR 1506.6 of the CEQ Regulations.
§ 907.13 Public involvement.
Interested persons may obtain information concerning any pending EIS or any other element of the environmental review process of the Corporation by contacting the Public Information Officer of the Corporation, 1331 Pennsylvania Avenue, NW, Suite 1220 North, Washington, DC 20004, telephone (202) 566-1218.
§ 907.14 Corporation decision making procedures.
To ensure that at major decision making points all relevant environmental concerns are considered by the Decision Maker, the following procedures are established.
(a) An environmental document, i.e., the EIS, Environmental Assessment, Finding of No Signficant Impact, or Notice of Intent, in addition to being prepared at the earliest point in the decision making process, shall accompany the relevant proposal or action through the Corporation’s decision making process to ensure adequate consideration of environmental factors.
(b) The decision maker shall consider in its decision making process only those decision alternatives discussed in the relevant environmental documents. Also, where an EIS has been prepared, the decision maker shall consider all alternatives described in the EIS. A written record of the consideration of alternatives during the decision making process shall be maintained.
(c) Any environmental document prepared for a proposal or action shall be made part of the record of any formal rulemaking by the Corporation.
§ 907.15 Approval of private development proposals.
(a) Each development proposal submitted by a private developer to the Corporation for its approval, unless categorically excluded, shall require, at a minimum, an environmental assessment.
(b) The Board of Directors may not take any approval action on a submitted development proposal of a private developer until such time as the appropriate environmental review has been prepared and submitted to the Board of Directors.
(c) At a minimum, and as part of any submission made by a private developer to the Board of Directors for its approval, a private developer shall make available data and materials concerning the development proposal sufficient to permit the Corporation to carry out its responsibilities on environmental review. When requested, the developer shall provide additional information that the Corporation believes is necessary to permit it to satisfy its environmental review functions.
(d) As part of a development proposal submission, a private developer may submit an environmental assessment on its development proposal.
(e) Where the responsible Corporation official determines that the preparation of an EIS is required, the EIS shall be prepared in accordance with part 1502 of the CEQ Regulations. The responsible Corporation official may set time limits for environmental review appropriate to each development proposal, consistent with CEQ Regulations 40 CFR 1601.8 and 1506.10.
(f) The responsible Corporation official shall at the earliest possible time ensure that the Corporation commences its environmental review on a proposed development project and shall provide to a private developer any policies or information deemed appropriate in order to permit effective and timely review by the Corporation of a development proposal once it is submitted to the Board of Directors for approval. The official shall designate, for the benefit of the developer, staff members of the Corporation to advise the developer with regard to information that may be required in order to accomplish the Corporation’s environmental review.
§ 907.16 Actions where lead Agency designation is necessary.
(a) Consistent with CEQ Regulations, § 1501.5, where a proposed action by the Corporation involves one or more other Federal agencies, or where a group of actions by the Corporation and one or more other Federal agencies are directly related to each other because of their functional interdependence or geographical proximity, the Corporation will seek designation as lead agency for those actions that directly relate to implementation of the Plan and those actions that relate solely to the Development Area.
(b) For an action that qualifies as one for which the Corporation will seek designation as lead agency, the Corporation will promptly consult with the appropriate Federal agencies such as the National Capital Planning Commission, the Department of the Interior, and the General Services Administration to establish lead agency and cooperating agency designations.
Appendix A to Part 907
(a) Specific Corporation actions categorically excluded from the requirements for environmental assessment and an EIS are:
(i) Personnel actions;
(ii) Administrative actions and operations directly related to the operation of the Corporation (e.g., purchase of furnishings, services, and space acquisition for the Corporation offices);
(iii) Property management actions related to routine maintenance, operation, upkeep, etc., of real property owned by the Corporation;
(iv) Review of permit applications relating to minor development activities in the Development Area (sign approval, interior renovations, minor exterior changes to facade, etc.);
(v) Promulgation of development general and square guidelines that implement the Plan as covered by the Final EIS;
(vi) Contracts, work authorizations, procurement actions directly related to and implementing proposals, programs, and master agreements for which an environmental assessment or an environmental assessment and an EIS have been prepared, or which are related to administrative operation of the agency;
(vii) Acquisition/disposal by lease, easement, or sale of real and personal property owned by the Corporation subsequent to and implementing a prior decision of the Board of Directors for which an environmental assessment or an assessment and an EIS were prepared;
(viii) Activities directly related to and implementing the Public Improvements Program of the Corporation approved by the Board of Directors, and which are covered by a previously prepared environmental assessment or an environmental assessment and an EIS;
(ix) Demolition actions preparatory for development by the Corporation, other public agencies, or private developers subsequent to approval of development proposals made by the Board of Directors;
(x) Development proposal identical to the requirements of the Plan and which was included in an EIS previously prepared.
(b) An action which falls into one of the above categories may still require the preparation of an EIS or environmental assessment if the designated corporation official determines it meets the criteria stated in § 907.8(a) or involves extraordinary circumstances that may have a significant environmental effect.
PART 908—POLICY AND PROCEDURES TO FACILITATE THE RETENTION OF DISPLACED BUSINESSES AND RESIDENTS IN THE PENNSYLVANIA AVENUE DEVELOPMENT AREA
Subpart A—General
§ 908.1 Policy.
One of the goals of The Pennsylvania Avenue Plan—1974, as amended, (The Plan) is the reduction of hardships experienced by businesses and residents within the development area of the Pennsylvania Avenue Development Corporation (the Corporation) when they are displaced as a result of implementation of The Plan. It is the policy of the Corporation to provide displaced businesses and residents with a preferential opportunity to relocate within the development area so that they may share in the benefits brought to the area by the implementation of The Plan. This rule shall not be construed to affect the eligibility, rights or responsibilities of persons who may be entitled to benefits provided under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 as implemented by the Corporation (36 CFR part 904).
§ 908.2 Purpose.
The purpose of this rule is to:
(a) Provide a meaningful opportunity to businesses displaced by the Corporation’s program to return to, or remain in, the Development Area;
(b) Establish procedures and requirements for displaced occupants by which they may establish and later exercise their preferential right to return to the Development Area;
(c) Establish procedures which the Corporation and private Developers must follow in providing Qualified Persons with the opportunity to obtain their preferential right to return to the Development Area.
§ 908.3 Definitions.
The following definitions shall apply to this part:
(a) Developer means a Person or team of Persons that has received preliminary approval for a development proposal or has been designated by the Corporation as Developer pursuant to a development competition.
(b) Development Area means the area described in section 2 (f) of Pub. L. 92-578, October 27, 1972, as amended (40 U.S.C. 871 (f)), and for which the Plan has been prepared and will be implemented by the Corporation.
(c) List means the List of Qualified Persons maintained by the Corporation as provided in § 908.11(a) of this rule.
(d) Newly developed space means any leaseable part of a new building in the Development Area upon which construction was commenced after October 27, 1972 or an existing building in the Development Area which after October 27, 1972 underwent substantial remodeling, renovation, conversion, rebuilding, enlargement, extension or major structural improvement, but not including ordinary maintenance or remodeling or changes necessary to continue occupancy.
(e) Person means a partnership, company, corporation, or association as well as an individual or family, but does not include a department, agency, or instrumentality of any Federal, state, or local government.
(f) Previous location means the space from which the Eligible Person was or is being displaced as a result of the Corporation’s or Developer’s acquisition of real property, or as a result of receiving a written order to vacate from the Corporation.
Subpart B—Preferential Right To Relocate
§ 908.10 Criteria of Qualified Person.
Qualified Person is either
(a) A Person whose place of business or residence was located in the Development Area and was displaced from its location by:
(1) The Corporation in connection with the acquisition of fee title, or a lesser interest, in the real property containing such business or residence; or
(2) A Developer in implementing a development project in accordance with the Plan; or
(b) A Person whose place of business or residence is located in the Development Area and who has received notice of initiation of negotiations by the Corporation for purchase of the real property containing such business or residence.
§ 908.11 List of Qualified Persons.
(a) The Corporation shall develop and maintain a List of Qualified Persons who meet the criteria of Qualified Person as defined in § 908.10 and who ask to be placed on that list.
(b) The Corporation shall notify each occupant displaced by development provided an address is available to the Corporation, of this policy and the procedures to be followed for placement on the List.
(c) A person who wishes to be included on the List shall notify the Corporation in writing to that effect. The notice to the Corporation shall include:
(1) The address of the Previous Location;
(2) A short statement indicating the nature of the Qualified Person’s occupancy;
(3) The amounts and type of space occupied prior to displacement;
(4) A description of any specialized equipment or unusual requirements for occupancy; and
(5) A copy of the notice to vacate from the Developer or notice of initiation of negotiations from the Corporation if either of these was received by the Qualified Person.
(d) The Corporation shall:
(1) Review the information furnished by the Person including any notice;
(2) Request additional information, if necessary to make a determination of the Person’s qualifications;
(3) Determine whether the Person is qualified to be listed, and if so place the Person on the list; and
(4) Notify the Person of its determination.
(e) The Corporation urges that any Person who wishes to be placed on the List request such placement as soon as the Person meets the criteria for Qualified Person established in § 908.10, and all Persons are encouraged to do so no later than one year of the time the Person is displaced in order to increase the opportunity to obtain Newly Developed Space. However, no Person shall be denied placement on the List because such placement was not requested within one year of displacement.
§ 908.12 Retention on the List of Qualified Persons.
(a) Once placed on the List, the Corporation shall keep a Person on the List until:
(1) The Corporation receives a written request from the Qualified Person to be removed from the List;
(2) The Qualified Person is relocated into or has a binding lease commitment for Newly Developed Space;
(3) The Qualified Person sells, transfers, or merges its interest in the displaced business, unless after such change in ownership Qualified Persons have at least fifty-one percent of the interest in the resulting business; or
(4) The Corporation receives a mailing returned from the Post Office that the Person is not located at the known address and left no forwarding address, provided that the Corporation shall reinstate any such removed name if the Person provides the Corporation with a current address; or
(5) The Corporation ceases operations upon completion of the Plan.
(b) A Qualified person relocated into newly developed space, may only again be placed on the List:
(1) If another branch of its business is subsequently displaced from space within the Development Area which is not Newly Developed Space; and
(2) If all requirements of § 908.10 of the rule are met with regard to the subsequent displacement.
§ 908.13 Rights of Qualified Persons.
(a) As provided in §§ 908.14(c) and 908.15(b), each Qualified Person on the List shall receive notices of opportunities to occupy Newly Developed Space as opportunities become available.
(b) As provided in §§ 908.14(d) and 908.15(c), each Qualified Person on the List shall be notified of any subsequent changes in the leasing plan which are, in the Corporation’s opinion, major.
(c) Each Qualified Person on the List, who is interested in negotiating for occupancy of Newly Developed Space shall, within two weeks after receiving notice of a tenanting opportunity, provide written notice of its interest in the tenanting opportunity to the Developer, and furnish a copy of the written notice to the Corporation.
(d) Each Qualified Person on the List who provides a written notice of interest shall have ninety days following the Developer’s receipt of the notice of interest for exclusive negotiations with the Developer for occupancy of the Developer’s Newly Developed Space. During the ninety day period the Developer, subject to §§ 908.14 and 908.15 of this rule, shall not negotiate tenanting opportunities for the same Newly Developed Space requested by the Qualified Person with other than Qualified Persons.
(e) A Qualified Person’s opportunity to occupy Newly Developed Space shall not be limited to the square on which its previous location was situated but extends throughout the Development Area. Similarly, no Qualified Person has an absolute right to return to the square where previous location was situated.
(f) A Qualified Person’s opportunity to occupy space may be exercised in the Development Area at any time during the Corporation’s existence, but such opportunity may only be exercised within Newly Developed Space.
(g) A Qualified Person has one opportunity to occupy Newly Developed Space for each location in the Development Area from which it is displaced.
(h) The Corporation cannot assure any Qualified Person that it will be relocated to Newly Developed Space.
§ 908.14 Requirements placed on developers that have acquired or leased real property from the Corporation.
Developers who have acquired or leased real property from the Corporation shall:
(a) Notify the Corporation, within six months of the approval of the Developer’s building permit, of its leasing plan and when it intends to begin seeking tenants. The Developer shall include at least the following in its leasing plan:
(1) The mix of uses and estimated square footage for each use;
(2) The rentals to be charged by type of use and location;
(3) The terms and conditions to be included in the leases, including financial participation;
(4) The selection criteria to be used by either the Developer or its agents; and
(5) The projected completion and occupancy dates.
(b) Notify the Corporation of any changes in the Developer’s leasing plan.
(c) Send registered letters to all Qualified Persons on the List notifying them that the developer is seeking tenants and advising them that they have two weeks to provide the developer with written notice of their interest and ninety days thereafter for exclusive negotiations. This letter shall include a description of the mix of uses in the project, the rentals to be charged by type of use and location, the terms and conditions to be included in leases, the projected completion and occupancy dates, and the selection criteria to be used to choose tenants. The Developer will furnish the Corporation with an enumeration of the Qualified Persons it has notified and a copy of the letter and any attachments sent.
(d) Notify in writing each Qualified Person whom the Developer has previously contacted of changes in the Developer’s leasing plan which the Corporation determines are major.
(e) Provide a ninety day period for exclusive negotiations with Qualified Persons, said period to commence with the timely receipt by the Developer of the written notice of interest from the Qualified Person. During this period the Developers shall:
(1) Negotiate tenanting opportunities only with Qualified Persons who have notified the Developer of their interest in the opportunity;
(2) Not seek other potential tenants or negotiate agreements to occupy the Newly Developed Space requested by Qualified Persons with anyone other than those Qualified Persons who have timely notified the Developer of their interest in the opportunity, except that a Developer may negotiate agreements with equity partners in the project who will become tenants or with prime tenants; and
(3) Negotiate in good faith with interested Qualified Persons and seek to accommodate them as tenants.
(f) Report to the Corporation at the conclusion of the ninety day period of exclusive negotiations concerning the results of its efforts. In particular the developer shall:
(1) State the number of responses which it received from Qualified Persons;
(2) State the number of Qualified Persons with whom it has reached agreement and the name of each;
(3) State the number of Qualified Persons with whom it is still negotiating and the name of each; and
(4) Describe the Developer’s negotiations with each Qualified Person including a summary of each communication between the Developer and each Qualified Person with whom agreement has not been reached, the Developer’s best offer to each Qualified Person, the best offer of each Qualified Person to the Developer, and the specific reasons why any Qualified Persons did not meet the selection criteria.
(g) Report to the Corporation quarterly thereafter until the project is fully leased or there are no more Qualified Persons interested in leasing space, whichever first occurs, concerning the results of its nogotiations with Qualified Persons. In particular the Developer shall state:
(1) The number of Qualified Persons with whom it has reached agreement and the name of each;
(2) The percentage of square feet of total leasable space which it has leased to Qualified Persons; and
(3) A description of the Developer’s negotiations with each Qualified Person including a summary of each communication between the Developer and each Qualified Person with whom agreement has not been reached, the Developer’s best offer to each Qualified Person, the best offer of each Qualified Person to the Developer, and the specific reason why the Developer determines any Qualified Person did not meet its selection criteria.
§ 908.15 Requirements placed on developers that have not acquired or leased real property from the Corporation.
The Corporation shall encourage Developers that do not acquire or lease real property from the Corporation to lease to Qualified Persons.
(a) While reviewing the Developer’s preliminary or final plans, the Corporation shall explore the tenanting opportunities proposed by the Developer and furnish the Developer with the List.
(b) The Corporation shall notify those Qualified Persons on the List who appear to be prospective tenants for the available tenanting opportunities of this tenanting opportunity. To the extent that such information is available to the Corporation, these notices shall specify the mix of uses in the project, the rentals to be charged by type of use and location, the terms and conditions to be included in the leases, the projected completion and occupancy dates and the selection criteria to be used in choosing tenants.
(c) The Corporation shall notify in writing each Qualified Person whom it has previously contacted of changes in the Developer’s plan provided the Corporation is informed of the changes and determines the changes are major.
(d) The Corporation shall request that the Developer make every effort to lease space to Persons on the List and to report to the Corporation the names of those Qualified Persons who have reached an agreement with the Developer.
Subpart C [Reserved]
Subpart D—Review Procedure
§ 908.30 Request for review.
(a) Any Person aggrieved by a determination concerning placement or retention on the List or any other right under subpart B of this rule, may request that the determination be reviewed.
(b) The applicant’s request for review, shall be in writing, shall state the reasons for requesting review, and shall describe the relief sought (including all information the aggrieved person believes to be relevant). The applicant’s written request shall be sent to the Director of Real Estate, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004.
§ 908.31 Time for filing request for review.
Any person who files a request for review must do so within one year of the date of the determination for which review is sought.
§ 908.32 Review procedures.
(a) Upon receipt of a request for review, the Director of Real Estate shall compile all pertinent records maintained on the aggrieved person’s application, including the following:
(1) Information on which the original determination was based, including applicable regulations;
(2) Information submitted by the applicant including the request for review and any information submitted in support of the application;
(3) Any additional information the Director of Real Estate considers relevant to a full and fair review of the application and which he obtains by request, investigation or research.
(b) The Director of Real Estate shall submit the complete file together with a summary of the facts and issues involved in the application to the Chairman of the Board of Directors of the Corporation or his or her designee (Chairman or designee) within 30 days of receipt of the request for review.
(c) The Chairman may either review the application or designate one or more persons from the Board of Directors or from outside the Corporation to review the claim. During review the Chairman or designee(s) may consult with the Corporation’s Office of General Counsel to obtain advice on legal issues arising from the claim.
§ 908.33 Final determination.
(a) The Chairman or designee(s) shall make a final determination on the claim within 45 days of receipt of the file from the Director of Real Estate. The final determination shall be in the form of Findings of Fact and Conclusions of Law and shall be sent to the aggrieved person and to the Director of Real Estate.
(b) If the applicant is determined to have been aggrieved, the Director of Real Estate shall promptly take appropriate action in accordance with the final determination.
(c) A notice of the right to judicial review shall be sent to the aggrieved person with the final determination.
PART 909—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE PENNSYLVANIA AVENUE DEVELOPMENT CORPORATION
§ 909.101 Purpose.
This part effectuates section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
§ 909.102 Application.
This part applies to all programs or activities conducted by the agency.
§ 909.103 Definitions.
For purposes of this part, the term—
Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.
Auxiliary aids means services or devices that enable persons with impaired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency. For example, auxiliary aids useful for persons with impaired vision include readers, brailled materials, audio recordings, telecommunications devices and other similar services and devices. Auxiliary aids useful for persons with impaired hearing include telephone handset amplifiers, telephones compatible with hearing aids, telecommunication devices for deaf persons (TDD’s), interpreters, notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the complainant’s name and address and describes the agency’s alleged discriminatory action in sufficient detail to inform the agency of the nature and date of the alleged violation of section 504. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination.
Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.
Handicapped person means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes—
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alocoholism.
(2) Major life activities includes functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
(4) Is regarded as having an impairment means—
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in paragraph (1) of this definition but is treated by the agency as having such an impairment.
Historic preservation programs means programs conducted by the agency that have preservation of historic properties as a primary purpose.
Historic properties means those properties that are listed or eligible for listing in the National Register of Historic Places or properties designated as historic under a statute of the appropriate State or local government body.
Qualified handicapped person means—
(1) With respect to preschool, elementary, or secondary education services provided by the agency, a handicapped person who is a member of a class of persons otherwise entitled by statute, regulation, or agency policy to receive education services from the agency.
(2) With respect to any other agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility requirements and who can acheive the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
(3) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
(4) Qualified handicapped person is defined for purposes of employment in 29 CFR 1613.702(f), which is made applicable to this part by § 909.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), and the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used in this part, section 504 applies only to programs or activities conducted by Executive agencies and not to federally assisted programs.
Substantial impairment means a significant loss of the integrity of finished materials, design quality, or special character resulting from a permanent alteration.
§§ 909.104-909.109 [Reserved]
§ 909.110 Self-evaluation.
(a) The agency shall, by August 24, 1987, evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, until three years following the completion of the self-evaluation, maintain on file and make available for public inspection:
(1) A description of areas examined and any problems identified, and
(2) A description of any modifications made.
§ 909.111 Notice.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this regulation.
§§ 909.112-909.129 [Reserved]
§ 909.130 General prohibitions against discrimination.
(a) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate or different programs or activities.
(3) The agency may not, directly or through contractual or other arrangments, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified handicapped persons to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified handicapped persons to discrimination on the basis of handicap.
(6) The agency may not administer a licensing or certification program in a manner that subjects qualified handicapped persons to discrimination on the basis of handicap, nor may the agency establish requirements for the programs or activites of licensees or certified entities that subject qualified handicapped persons to discrimination on the basis of handicap. However, the programs or activities of entities that are licensed or certified by the agency are not, themselves, covered by this part.
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
§§ 909.131-909.139 [Reserved]
§ 909.140 Employment.
No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally conducted programs or activities.
§§ 909.141-909.148 [Reserved]
§ 909.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in § 909.150, no qualified handicapped person shall, because the agency’s facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
§ 909.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by handicapped persons. This paragraph does not—
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by handicapped persons;
(2) In the case of historic preservation programs, require the agency to take any action that would result in a substantial impairment of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 909.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that handicapped persons receive the benefits and services of the program or activity.
(b) Methods—(1) General. The agency may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock, or any other methods that result in making its programs or activities readily accessible to and usable by handicapped persons. The agency is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. The agency, in making alterations to existing buildings, shall meet accessibility requirements to the extent compelled by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any regulations implementing it. In choosing among available methods for meeting the requirements of this section, the agency shall give priority to those methods that offer programs and activities to qualified handicapped persons in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of § 909.150(a) in historic preservation programs, the agency shall give priority to methods that provide physical access to handicapped persons. In cases where a physical alteration to an historic property is not required because of § 909.150(a)(2) or (a)(3), alternative methods of achieving program accessibility include—
(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide handicapped persons into or through portions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.
(c) Time period for compliance. The agency shall comply with the obligations established under this section by October 21, 1986, except that where structural changes in facilities are undertaken, such changes shall be made by August 22, 1989, but in any event as expeditiously as possible.
(d) Transition plan. In the event that structural changes to facilities will be undertaken to achieve program accessibility, the agency shall develop, by February 23, 1987, a transition plan setting forth the steps necessary to complete such changes. The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the development of the transition plan by submitting comments (both oral and written). A copy of the transition plan shall be made available for public inspection. The plan shall, at a minimum—
(1) Identify physical obstacles in the agency’s facilities that limit the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the official responsible for implementation of the plan.
§ 909.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by handicapped persons. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.
§§ 909.152-909.159 [Reserved]
§ 909.160 Communications.
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants and beneficiaries by telephone, telecommunication devices for deaf person (TDD’s) or equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and adminstrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 909.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, handicapped persons receive the benefits and services of the program or activity.
§§ 909.161-909.169 [Reserved]
§ 909.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) The Executive Director shall be responsible for coordinating implementation of this section. Complaints may be sent to the General Counsel, Pennsylvania Avenue Development Corporation, 1331 Pennsylvania Avenue, NW., Suite 1220 North, Washington, DC 20004-1730.
(d) The agency shall accept and investigate all complete complaints for which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(f) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792), is not readily accessible to and usable by handicapped persons.
(g) Within 180 days of the receipt of a complete complaint for which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(h) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 909.170(g). The agency may extend this time for good cause.
(i) Timely appeals shall be accepted and processed by the head of the agency.
(j) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he or she shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(k) The time limits cited in paragraphs (g) and (j) of this section may be extended with the permission of the Assistant Attorney General.
(l) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.
§§ 909.171-909.999 [Reserved]
PART 910—GENERAL GUIDELINES AND UNIFORM STANDARDS FOR URBAN PLANNING AND DESIGN OF DEVELOPMENT WITHIN THE PENNSYLVANIA AVENUE DEVELOPMENT AREA
Subpart A—General
§ 910.1 Policy.
(a) The Pennsylvania Avenue Development Corporation Act of 1972, Pub. L. 92-578, October 27, 1972, (the Act), (40 U.S.C. 871 et seq.) established the Pennsylvania Avenue Development Corporation (the Corporation) with jurisdiction over the Pennsylvania Avenue Development Area (Development Area). The Development Area is generally described as an area in Washington DC, bounded by Pennsylvania Avenue, NW., on the south, East Executive Drive on the west, 3rd Street, NW., on the east, and E and F Streets, NW., on the north.
(b) Prior to creation of the Corporation, the deterioration of the Development Area had an adverse impact upon the physical, economic, and social life of Washington, DC. The Corporation was created as the vehicle to develop, maintain, and use the Development Area in a manner suitable to its ceremonial, physical, and historic relationship to the legislative and executive branches of the Federal government, to the governmental buildings, monuments, memorials, and parks in and adjacent to that area, and to the downtown commercial core of Washington, DC. The Corporation was directed to prepare a development plan for the Development Area and to submit that plan to the United States Congress. Congress accepted that plan and directed its implementation by the Corporation. The Corporation through a broad range of statutory powers has begun this implementation process.
(c) The Pennsylvania Avenue Plan—1974, as amended (the Plan) is a blueprint for social, economic, and architectural rejuvenation of the Development Area. Its goal is to make the Development Area once again a relevant and contributing element of Washington, DC. With the implementation of the Plan, the Development Area will become a showpiece of the Nation’s Capital, proudly displaying the successful joint efforts of the Corporation, other Federal and District of Columbia government agencies, and private entrepreneurs.
(d) The Plan, containing the goals and objectives for development, is supplemented by various adopted policies and programs of the Corporation. The Plan, in conjunction with these policies and programs, represents the basis upon which the development and rejuvenation of the Development Area will proceed, whether publicly or privately inspired and accomplished. These policies and programs amplify, elaborate, and refine the planning and urban design concepts expressed in the Plan.
§ 910.2 Purpose.
(a) Implementation of the Plan occurs through two component actions: public improvements construction and square development. Public improvements construction consists of implementation by the Corporation of the Public Improvements Program which is a comprehensive plan for the design and construction of public amenities in public spaces and selected thoroughfares within the Development Area. This program outlines the details of roadway and sidewalk improvements, public space configuration, and pedestrian amenities. Square development consists of design and construction of development projects primarily on city blocks, known as squares, within the Development Area. These development projects are generally pursued by private entrepreneurs with varying degrees of participation and involvement by the Corporation, through such means as land assemblage and leasing.
(b) This part 910, together with the Square Guidelines applicable to the coordinated planning area, pertains solely to square development and specifies the controlling mechanism for implementation of the Plan required by Chapter Six of the Plan.
§ 910.3 Program administration.
(a) This part 910, together with Square Guidelines, described below, provides interested parties with the urban planning and design information sufficient to understand and participate in the process of square development within the Development Area.
(1) This part 910, General Guidelines and Uniform Standards for Urban Planning and Design of Development, sets forth the general planning and design goals and objectives which govern the implementation of the Plan, specifies standards which are uniformly applicable to all developments throughout the Development Area, and provides a glossary of defined terms applicable to this part as well as Square Guidelines.
(2) Square Guidelines specifies detailed urban planning and design requirements and recommendations which are applicable to each particular coordinated planning area, a coordinated planning area being a square, a portion of a square, or a combination of squares. These requirements and recommendations set forth intentions and refinements of the Plan in light of the identified Planning and Design Concerns specified in subpart B of this part 910. Each set of Square Guidelines is adopted by the Board of Directors, issued by the Chairman, and is available, upon request, at the Corporation’s office.
(3) Square Guidelines are developed in the context of the existing environment. Several provisions in the Square Guidelines are, therefore, established on the basis of certain assumptions in terms of existing buildings, a particular traffic pattern and roadway configuration, a market condition for a particular land use, etc. In the event of a major change or casualty which would render it impossible or impracticable to meet certain requirements of Square Guidelines, the Corporation would expect to develop and issue up-to-date Square Guidelines. This statement does not, of course, preclude the Corporation from issuing amendments to Square Guidelines from time to time on any other basis.
(b) Pursuant to section 7(b) of the Act, each proposal for development within the Development Area must be submitted to the Corporation to determine its consistency with the Plan. The Corporation’s adopted development policy, entitled “Development Policies and Procedures,” sets forth the process for this determination. In determining whether a development proposal is consistent with the Plan, the Corporation shall review the proposal against all adopted Corporation programs, policies, and regulations, including:
(1) This part 910.
(2) Square Guidelines.
(3) Development Policies and Procedures.
(4) Historic Preservation Plan.
(5) Energy Guidelines.
(6) Side Street Improvements Program.
(7) Policy on Environmental Quality and Control (36 CFR part 907).
(8) Pennsylvania Avenue Lighting Plan.
(9) Public Improvements Program.
(10) Affirmative Action Policy and Procedure (36 CFR part 906).
(11) Policy and Procedures to Facilitate Successful Relocation of Businesses and Residents within the Pennsylvania Avenue Development Area.
(12) All other programs, policies, and regulations that may be approved and adopted by the Board of Directors from time to time.
(c) Pursuant to the Act, Federal and District of Columbia agencies and departments may exercise such existing authority and lawful powers over urban planning and design features of development as are consistent with the Plan. No department or agency may release, modify, or depart from any feature of the Plan without the prior approval of the Corporation.
Subpart B—Urban Planning and Design Concerns
§ 910.10 General.
To facilitate review of each development proposal in light of the identified urban planning and design goals of the Plan, the following urban planning and design concerns will be the basis upon which the evaluation of such proposals will be made. These concerns are also more specifically reflected in subpart C of this Rule, and in the requirements and recommendations in Square Guidelines.
(a) Comprehensive planning and design;
(b) Development density;
(c) Urban design of Washington, DC;
(d) Historic preservation;
(e) New development design;
(f) Land use;
(g) Pedestrian circulation sytems; and
(h) Vehicular circulation and storage systems.
§ 910.11 Comprehensive urban planning and design.
(a) All new development is conceived as an integral part of its surroundings, which include the remainder of the Development Area, the Mall, the Federal Triangle, and the District’s downtown, and should support Pennsylvania Avenue’s function as a bridge between the monumental Federal core to the south and the District’s downtown to the north.
(b) All development shall be planned and designed to accommodate the requirements and needs of historic preservation, affirmative action, business relocation, and other concerns which will affect the overall planning and design of a development.
(c) The design of any development shall take into account the Plan’s proposed future treatment of buildings, squares, and pedestrian spaces in the immediate surrounding area.
(d) The design of any development shall be coordinated with the massing, architectural design, servicing, pedestrian amenities, and uses of nearby development as prescribed under the Plan.
(e) Any development adjacent to F Street, NW. shall be accomplished in a manner that will strengthen F Street as a retail core of Washington, DC.
(f) Any development along Pennsylvania Avenue shall be designed so as to support the transformation of the Avenue into an attractive and pleasant place for residents and visitors alike, offering pleasant places to stroll, rest, sit and talk, eat, and shop.
(g) All development within a coordinated planning area shall, to the maximum extent possible, be integrated with regard to the off-street loading and servicing, pedestrian features.
§ 910.12 Development density.
(a) Land would be developed to the fullest extent appropriate in terms of uses, economics, and design so that the city’s economic life and tax base can be enhanced.
(b) New development shall be designed to achieve maximum development density within the building envelope delineated by specific height restrictions, but shall also establish a compatible and appropriate scale for historic preservation, residential and other uses, and other urban design elements.
(c) Development density is limited by the Zoning Regulations of the District of Columbia and may be further restricted by the Corporation in specific coordinated planning areas, provided that any lower density would be economically feasible. Generally, the Plan is structured to create high density development west of the FBI and lower density development east of the FBI.
(d) The density of new development should bring new economic life—jobs, shopping, and business opportunities—to Pennsylvania Avenue, while also reinforcing existing activity both on the Avenue and in the adjacent downtown, both within and beyond the Development Area.
§ 910.13 Urban design of Washington, DC.
(a) Pennsylvania Avenue’s unique role as the physical and symbolic link between the White House and the U.S. Capitol should be reinforced by new development along it.
(b) To reinforce and enrich the legacy of the L’Enfant Plan, the primary function of new development in the Development Area is to define open spaces and plazas, or to reinforce vistas along major streets and thoroughfares.
§ 910.14 Historic preservation.
(a) The Development Area is located almost entirely within the Pennsylvania Avenue National Historic Site, which was established to preserve the exceptional values of Pennsylvania Avenue and its environs in commemorating or illustrating the history of the United States. The Pennsylvania Avenue Area achieves national historic significance because of both its ceremonial role in the life of the nation and its social and economic role in the life of the residents of Washington for more than a century.
(b) The Historic Preservation Plan of the Corporation sets forth the adopted policy of the Corporation on historic preservation and development within the Development Area must be consistent with this policy.
(c) New construction adjacent to historic structures will be required to take into account the qualities of the adjacent structures (with regard to height, scale, proportion, rhythm, texture, materials, architectural detail, and the amount of variety among the structures with respect to these qualities as well as style and date of erection) to ensure that these structures maintain their historic or architectural integrity, but will not necessarily be required to conform to them.
(d) Wholly new construction and new construction in conjunction with preservation will, where appropriate, take into account the historic buildings to remain, aiming for the highest quality of contemporary design, consistent with the goals and objectives of the Historic Preservation Plan.
§ 910.15 New development design.
(a) All new development shall represent the best contemporary architectural and urban planning concepts.
(b) Where new development includes or relates to historic or architecturally meritorious buildings which are to be preserved, the design of the new development should be aimed at retaining as much of the significant fabric of the Development Area as is possible consistent with the goals of the Plan.
§ 910.16 Land use.
(a) Development within the Development Area shall provide, and stimulate in neighboring areas, more lively and varied shopping, cultural, entertainment, and residential opportunities, as well as high quality office uses.
(b) That portion of the Development Area west of the FBI Building is designated for commercial development, primarily office and hotel uses with attendant retail and service uses. That portion of the Development Area east of the FBI Building is designated for development with residential uses, office, institutional and entertainment uses supported by service and retail uses.
(c) The kinds of uses and their location within the Development Area shall be directly related to creating a lively atmosphere and to promoting an active street life throughout the day, evening, and weekend.
(d) Introduction or expansion of retail uses shall be encouraged as both reinforcement of existing retail uses and creation of new retail activities.
(e) While recognized as important to the commercial life of any inner city, uses that do not generate lively activities are discouraged from locating along those street fronts within the Development Area which are considered major pedestrian thoroughfares.
§ 910.17 Pedestrian circulation system.
(a) An efficient, pleasant, and stimulating pedestrian circulation system shall be developed to link the components of the Development Area with the Mall and the city’s downtown.
(b) Pedestrian circulation systems shall be designed to provide pedestrian comfort and convenience, to create more linear footage of storefront, to encourage recognition of the location of various METRO stops or other mass transit locations, and to link various historic and architecturally significant buildings, sites, and monuments which are scattered throughout and beyond the Historic Site.
(c) Curb cuts across the north sidewalk areas of Pennsylvania Avenue shall be prohibited in order to reinforce its importance as the major pedestrian thoroughfare of the Development Area.
§ 910.18 Vehicular circulation and storage systems.
(a) Improvement of the existing vehicular storage and circulation system is necessary in order to create the balanced transportation system called for in the Plan, which recognizes the need to maintain air quality, to encourage the use of mass transit, and to provide sufficient off-street parking and loading to make development economically viable.
(b) The general policies of the Corporation are as follows:
(1) To reduce impedance to traffic movement created by service vehicles by requiring well-integrated off-street loading facilities in terms of location of loading berths and access points on a block-by-block basis;
(2) To control the number of vehicles in the Development Area by limiting the number of parking spaces per development; and
(3) To encourage the use of public transportation by linking new development to transit stops through the system of pedestrian ways.
Subpart C—Standards Uniformly Applicable to the Development Area
§ 910.30 General.
In addition to the specific requirements and recommendations contained in Square Guidelines for the applicable coordinated planning area, the Standards set forth in this subpart C are uniformly applicable to any development within the Development Area.
§ 910.31 High architectural quality.
Development must maintain a uniformly high standard of architecture, representative of the best contemporary design and planning concepts. Great care and sensitivity must be shown in the architectural treatment of new buildings, particularly in terms of massing, facade design (including materials, composition, and detailing), the ground floor and sidewalk pedestrian environment, interior public spaces, and provisions for pedestrian and vehicular access. Special design considerations for each coordinated planning area are set forth in Square Guidelines.
§ 910.32 Historic preservation.
Rehabilitation of buildings within the Development Area, which, according to the Plan and the Historic Preservation Plan of the Corporation, are specified for preservation, shall be acomplished (a) in accordance with the Secretary of the Interior’s “Standards for Historic Preservation Projects”: (36 CFR part 68), and (b) consultation with the State Historic Preservation Officer for the District of Columbia.
§ 910.33 Off-street parking.
(a) Off-street parking as a principal use is prohibited, although off-street parking as an accessory use in a development (such as a below-grade parking garage) is permitted.
(b) All parking spaces shall be located below grade level.
(c) The minimum number of parking spaces shall be provided in accordance with DC Zoning Regulations.
(d) The maximum number of parking spaces permitted by PADC for a development may not exceed the aggregate of the number of spaces allowed for each use within the development. The schedule of limitations for parking spaces is as follows:
(1) Hotel: One parking space for each four sleeping rooms or suites;
(2) Places of public assemblage other than hotels: (i.e., arena, armory, theater, auditorium, community center, convention center, concert hall, etc.) one parking space for each ten seats of occupancy capacity for the first 10,000 seats plus one for each 20 seats above 10,000: Provided, that where seats are not fixed, each seven square feet of gross floor area usable for seating shall be considered one seat;
(3) Retail, trade, and service establishments: one parking space for each 750 square feet of gross floor area;
(4) Residential: One parking space for each 1.2 units;
(5) Offices: One parking space for each 1,800 square feet of gross floor area.
§ 910.34 Accommodations for the physically handicapped.
(a) Every development shall incorporate features which will make the development accessible by the physically handicapped. The standards in the “American Standard Specifications for Making Buildings and Facilities Accessible to, and Usable by the Physically Handicapped,” published by the American National Standards Institute, Inc. (ANSI A 117.1-1961 (1971)), are recommended.
(b) Where a development includes a historic structure, the Advisory Council on Historic Preservation’s policy, “Supplementary Guidance—Handicapped Access to Historic Properties,” (45 FR 9757, Feb. 13, 1980), should be observed.
§ 910.35 Fine arts.
Fine arts, including sculpture, paintings, decorative windows, bas-reliefs, ornamental fountains, murals, tapestries, and the like, should be included in each development. PADC encourages commissions for original works of art which are appropriate for the development. For information and guidance, a reasonable expenditure for fine arts is deemed to be one half of one percent of the total construction cost of the development.
§ 910.36 Energy conservation.
All new development shall be designed to be economical in energy consumption. The Energy Guidelines of the Corporation, and the District of Columbia Energy Conservation Code Act of 1979 and its implementing regulations set forth the appropriate standards to be observed.
§ 910.37 Fire and life safety.
As a complementary action to satisfying required District of Columbia codes related to fire safety, it is highly recommended that all new development be guided by standards of the NFPA Codes for fire and life safety and that all buildings be equipped with an approved sprinkler system.
§ 910.38 Building exterior illumination.
Exterior illumination of a building shall be in conformance with the standards specified in the Pennsylvania Avenue Lighting Plan of the Corporation.
Subpart D—Glossary of Terms
§ 910.50 General.
The definitions appearing in this Glossary of Terms are applicable to this part 910 and to the Square Guidelines. In addition, definitions appearing in section 1201 of the Zoning Regulations of the District of Columbia are also applicable. Where a conflict between this subpart and section 1201 of the Zoning Regulations arises in terminology or interpretation, this subpart shall be controlling.
§ 910.51 Access.
Access, when used in reference to parking or loading, means both ingress and egress.
§ 910.52 Buildable area.
Buildable area means that portion of the established development parcel which can be devoted to buildings and structures. Generally, this area is bounded by any applicable building restriction lines, right-of-way lines and development parcel lines. It shall be the buildable area of a development parcel rather than “lot,” as it is established in the DC Zoning Regulations, that will be utilized to establish the maximum gross floor area of a development within specified portions of the Development Area.
§ 910.53 Building restriction line.
Building restriction line means a line beyond which an exterior wall of any building of a development may not be constructed or project, except that architectural articulation, minor architectural embellishments, and subsurface projections are permitted.
§ 910.54 Build-to height.
Build-to height means a specified minimum height of development to which the exterior wall of a building in a development must rise. Minor deviations from the build-to height for architectural embellishments and articulations of the cornice and roof level are permitted, unless otherwise prohibited by the applicable Square Guidelines or the District of Columbia’s codes and regulations.
§ 910.55 Build-to line.
Build-to line means a line with which the exterior wall of a building in a development is required to coincide. Minor deviations from the build-to line for such architectural features as weather protection, recesses, niches, ornamental projections, entrance bays, or other articulations of the facade are permitted, unless otherwise prohibited by the applicable Square Guidelines or the District of Columbia’s codes and regulations.
§ 910.56 Coordinated planning area.
Coordinated planning area means a Square, portion of a Square, or group of Squares that is composed of one or more development parcels and is treated as a unit under Square Guidelines in order to achieve comprehensive planning and design.
§ 910.57 Curb-cut.
Curb-cut means that portion of the curb and sidewalk over which vehicular access is allowed. The number of access lanes for each curb-cut shall be specified in each set of Square Guidelines.
§ 910.58 Development.
Development means a structure, including a building, planned unit development, or project resulting from the process of planning, land acquisition, demolition, construction, or rehabilitation consistent with the objectives and goals of the Plan.
§ 910.59 Development parcel.
Development parcel means an area of land established by the Corporation to be a minimum site on which a development may occur under the Plan and any applicable Square Guidelines adopted by the Corporation. A development parcel does not need to be under the ownership of a single individual or entity. A proposal for a development parcel may be formulated by any number of individuals or entities, so long as it accommodates the needs and requirements of affirmative action, historic preservation and other policies of the Corporation, and at the same time responds to the goals of comprehensive planning and design for that particular coordinated planning area.
§ 910.60 Gross floor area.
Gross floor area is defined in section 1201, Zoning Regulations of the District of Columbia and generally means the sum of the gross horizontal areas of the several floors from the ground floor up of all buildings of a development occurring on a lot. Gross floor area shall be measured from the exterior faces of exterior walls and from the center line of walls separating two buildings.
§ 910.61 Height of development.
Height of development means the vertical distance measured from a specified point at the curb level to the highest point of the roof or parapet of the development, whichever is higher, exclusive of all roof structures except as otherwise specified.
§ 910.62 The Plan.
The Plan means The Pennsylvania Avenue Plan—1974, as amended, and prepared pursuant to Pub. L. 92-578, 86 Stat. 1266 (40 U.S.C. 871), and the document which sets forth the development concepts upon which this part 910 and Square Guidelines are based.
§ 910.63 Rehabilitation.
Rehabilitation means the process of adapting improvements on real property to make possible an efficient contemporary use achieved by means of a combination of construction, repair, or alteration, as well as restoration and replication of those portions and features of the property that are significant to its historic, architectural, and cultural values, consistent with the goals and objectives of the Plan.
§ 910.64 Replication.
Replication means the process of using modern methods and materials to reproduce the exact form and details of a vanished building, structure, object, or portion thereof, as it appeared at a particular period of time, and consistent with the objectives and goals of the Plan.
§ 910.65 Restoration.
Restoration means the process of accurately recovering the form and details of a property as they appeared at a particular period of time by means of removal of later work and the replacement of missing original work, consistent with the objectives and goals of the Plan.
§ 910.66 Sidewalk setback.
Sidewalk setback means that area between a building restriction line and the right-of-way of a street into which projections except architectural articulations, minor architectural embellishments, and subsurface structures, are prohibited. The area is to be dedicated to open space activities related to the public improvements program of the Pennsylvania Avenue Development Corporation. Subsurface structures may intrude into the area if they are in compliance with the Square Guidelines.
§ 910.67 Square guidelines.
Square Guidelines establish the Corporation’s specific intent with regard to design and development objectives relative to each individual coordinated planning area.
§ 910.68 Storefront.
Storefront means the street level frontage relating to a single establishment.
§ 910.69 Structural bay.
Structural bay means the distance or span from one vertical structural member fronting on a street to the immediately adjacent vertical structural member fronting on the same street.
§ 910.70 Vault.
A vault means an enclosure of space beneath the surface of the public space or sidewalk setback, except that the term vault shall not include public utility structures.
§ 910.71 Weather protection.
Weather protection means a seasonal or permanent shelter to protect pedestrians from sun or precipitation, consisting of arcades, canopies, awnings, or other coverings.
PARTS 911-999 [RESERVED]
CHAPTER X—PRESIDIO TRUST
PART 1000 [RESERVED]
PART 1001—GENERAL PROVISIONS
§ 1001.1 Purpose.
(a) The regulations in this chapter provide for the proper use, management, government and protection of persons, property and natural and cultural resources within the area under the jurisdiction of the Presidio Trust.
(b) The regulations in this chapter will be utilized to fulfill the statutory purposes of the Presidio Trust Act.
§ 1001.2 Applicability and scope.
(a) The regulations contained in this chapter apply to all persons entering, using, visiting, or otherwise within the boundaries of federally owned lands and waters administered by the Presidio Trust.
(b) The regulations contained in Parts 1002, 1004 and 1005 of this chapter shall not be construed to prohibit administrative activities conducted by the Presidio Trust, or its agents, in accordance with approved policies of the Presidio Trust, or in emergency operations involving threats to life, property, or resources of the area administered by the Presidio Trust.
(c) The regulations in this chapter are intended to treat a mobility-impaired person using a manual or motorized wheelchair as a pedestrian and are not intended to restrict the activities of such a person beyond the degree that the activities of a pedestrian are restricted by the same regulations.
§ 1001.3 Penalties.
A person convicted of violating a provision of the regulations contained in Parts 1001, 1002, 1004 and 1005 of this chapter, within the area administered by the Presidio Trust, shall be punished by a fine as provided by law, or by imprisonment not exceeding 6 months, or both, and shall be adjudged to pay all costs of the proceedings.
§ 1001.4 Definitions.
The following definitions shall apply to this chapter, unless modified by the definitions for a specific part or regulation:
Abandonment means the voluntary relinquishment of property with no intent to retain possession.
Administrative activities means those activities conducted under the authority of the Presidio Trust for the purpose of safeguarding persons or property, implementing management plans and policies developed in accordance and consistent with the regulations in this chapter, or repairing or maintaining government facilities.
Airboat means a vessel that is supported by the buoyancy of its hull and powered by a propeller or fan above the waterline. This definition should not be construed to mean a “hovercraft,” that is supported by a fan-generated air cushion.
Aircraft means a device that is used or intended to be used for human flight in the air, including powerless flight.
Archeological resource means material remains of past human life or activities that are of archeological interest and are at least 50 years of age. This term includes, but shall not be limited to, objects made or used by humans, such as pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, pit houses, rock paintings, rock carvings, intaglios, or any portion or piece of the foregoing items, and the physical site, location or context in which they are found, or human skeletal materials or graves.
Authorized emergency vehicle means a vehicle in official use for emergency purposes by a Federal agency or an emergency vehicle as defined by State law.
Authorized person means an employee or agent of the Presidio Trust with delegated authority to enforce the provisions of this chapter.
Bicycle means every device propelled solely by human power upon which a person or persons may ride on land, having one, two, or more wheels, except a manual wheelchair.
Board means the Board of Directors of the Presidio Trust or its designee.
Boundary means the limits of lands or waters administered by the Presidio Trust as specified by Congress, or denoted by presidential proclamation, or recorded in the records of a state or political subdivision in accordance with applicable law, or published pursuant to law, or otherwise published or posted by the Presidio Trust.
Camping means the erecting of a tent or shelter of natural or synthetic material, preparing a sleeping bag or other bedding material for use, parking of a motor vehicle, motor home or trailer, or mooring of a vessel for the apparent purpose of overnight occupancy.
Carry means to wear, bear, or have on or about the person.
Controlled substance means a drug or other substance, or immediate precursor, included in schedules I, II, III, IV, or V of part B of the Controlled Substance Act (21 U.S.C. 812) or a drug or substance added to these schedules pursuant to the terms of the Act.
Cultural resource means material remains of past human life or activities that are of significant cultural interest and are less than 50 years of age. This term includes, but shall not be limited to, objects made or used by humans, such as pottery, basketry, bottles, weapons, weapon projectiles, tools, structures or portions of structures, or any portion or piece of the foregoing items, and the physical site, location, or context in which they are found, or human skeletal materials or graves.
Developed area means roads, parking areas, picnic areas, campgrounds, or other structures, facilities or lands located within development and historic zones depicted on the land management and use map for the area administered by the Presidio Trust.
Downed aircraft means an aircraft that cannot become airborne as a result of mechanical failure, fire, or accident.
Executive Director means the Executive Director of the Presidio Trust or his or her designee.
Firearm means a loaded or unloaded pistol, rifle, shotgun or other weapon which is designed to, or may be readily converted to, expel a projectile by the ignition of a propellant.
Fish means any member of the subclasses Agnatha, Chondrichthyes, or Osteichthyes, or any mollusk or crustacean found in salt water.
Fishing means taking or attempting to take fish.
Hunting means taking or attempting to take wildlife, except trapping.
Legislative jurisdiction means lands and waters under the exclusive or concurrent jurisdiction of the United States.
Manual wheelchair means a device that is propelled by human power, designed for and used by a mobility-impaired person.
Motor vehicle means every vehicle that is self-propelled and every vehicle that is propelled by electric power, but not operated on rails or upon water, except a snowmobile and a motorized wheelchair.
Motorcycle means every motor vehicle having a seat for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor.
Motorized wheelchair means a self-propelled wheeled device, designed solely for and used by a mobility-impaired person for locomotion, that is both capable of and suitable for use in indoor pedestrian areas.
Net means a seine, weir, net wire, fish trap, or other implement designed to entrap fish, except a hand-held landing net used to retrieve fish taken by hook and line.
Nondeveloped area means all lands and waters within the area administered by the Presidio Trust other than developed areas.
Operator means a person who operates, drives, controls, otherwise has charge of or is in actual physical control of a mechanical mode of transportation or any other mechanical equipment.
Pack animal means horses, burros, mules or other hoofed mammals when designated as pack animals by the Executive Director.
Permit means a written authorization to engage in uses or activities that are otherwise prohibited, restricted, or regulated.
Person means an individual, firm, corporation, society, association, partnership, or private or public body.
Pet means a dog, cat or any animal that has been domesticated.
Possession means exercising direct physical control or dominion, with or without ownership, over property, or archeological, cultural or natural resources.
Practitioner means a physician, dentist, veterinarian, scientific investigator, pharmacy, hospital or other person licensed, registered or otherwise permitted by the United States or the jurisdiction in which such person practices to distribute or possess a controlled substance in the course of professional practice.
Presidio Trust and Trust mean the wholly-owned federal government corporation created by the Presidio Trust Act.
Presidio Trust Act means Title I of Public Law 104-333, 110 Stat. 4097, as the same may be amended.
Presidio Trust road means the main-traveled surface of a roadway open to motor vehicles, owned, controlled or otherwise administered by the Presidio Trust.
Printed matter means message-bearing textual printed material such as books, pamphlets, magazines and leaflets and does not include other forms of merchandise, such as posters, coffee mugs, sunglasses, audio or videotapes, T-shirts, hats, ties, shorts and other clothing articles.
Public use limit means the number of persons; number and type of animals; amount, size and type of equipment, vessels, mechanical modes of conveyance, or food/beverage containers allowed to enter, be brought into, remain in, or be used within a designated geographic area or facility; or the length of time a designated geographic area or facility may be occupied.
Refuse means trash, garbage, rubbish, waste papers, bottles or cans, debris, litter, oil, solvents, liquid waste, or other discarded materials.
Services means, but is not limited to, meals and lodging, labor, professional services, transportation, admission to exhibits, use of telephone or other utilities, or any act for which payment is customarily received.
Smoking means the carrying of lighted cigarettes, cigars or pipes, or the intentional and direct inhalation of smoke from these objects.
Snowmobile means a self-propelled vehicle intended for travel primarily on snow, having a curb weight of not more than 1000 pounds (450 kg), driven by a track or tracks in contact with the snow, and steered by a ski or skis in contact with the snow.
State means a State, territory, or possession of the United States.
State law means the applicable and nonconflicting laws, statutes, regulations, ordinances, infractions and codes of the State(s) and political subdivision(s) within whose exterior boundaries the area administered by the Presidio Trust or a portion thereof is located.
Take or taking means to pursue, hunt, harass, harm, shoot, trap, net, capture, collect, kill, wound, or attempt to do any of the aforementioned.
Traffic means pedestrians, ridden or herded animals, vehicles and other conveyances, either singly or together while using any road, trail, street or other thoroughfare for purpose of travel.
Traffic control device means a sign, signal, marking or other device placed or erected by, or with the concurrence of, the Executive Director for the purpose of regulating, warning, guiding or otherwise controlling traffic or regulating the parking of vehicles.
Trap means a snare, trap, mesh, wire or other implement, object or mechanical device designed to entrap or kill animals other than fish.
Trapping means taking or attempting to take wildlife with a trap.
Underway means when a vessel is not at anchor, moored, made fast to the shore or docking facility, or aground.
Unloaded, as applied to weapons and firearms, means that:
(1) There is no unexpended shell, cartridge, or projectile in any chamber or cylinder of a firearm or in a clip or magazine inserted in or attached to a firearm;
(2) A muzzle-loading weapon does not contain gun powder in the pan, or the percussion cap is not in place; and
(3) Bows, crossbows, spear guns or any implement capable of discharging a missile or similar device by means of a loading or discharging mechanism, when that loading or discharging mechanism is not charged or drawn.
Vehicle means every device in, upon, or by which a person or property is or may be transported or drawn on land, except snowmobiles and devices moved by human power or used exclusively upon stationary rails or track.
Vessel means every type or description of craft, other than a seaplane on the water, used or capable of being used as a means of transportation on water, including a buoyant device permitting or capable of free flotation.
Weapon means a firearm, compressed gas or spring-powered pistol or rifle, bow and arrow, crossbow, blowgun, speargun, hand-thrown spear, slingshot, irritant gas device, explosive device, or any other implement designed to discharge missiles, and includes a weapon the possession of which is prohibited under the laws of the State in which the area administered by the Presidio Trust or portion thereof is located.
Wildlife means any member of the animal kingdom and includes a part, product, egg or offspring thereof, or the dead body or part thereof, except fish.
§ 1001.5 Closures and public use limits.
(a) Consistent with applicable legislation and Federal administrative policies, and based upon a determination that such action is necessary for the maintenance of public health and safety, protection of environmental or scenic values, protection of natural or cultural resources, aid to scientific research, implementation of management responsibilities, equitable allocation and use of facilities, or the avoidance of conflict among visitor use activities, the Board may:
(1) Establish, for all or a portion of the area administered by the Presidio Trust, a reasonable schedule of visiting hours, impose public use limits, or close all or a portion of the area administered by the Presidio Trust to all public use or to a specific use or activity.
(2) Designate areas for a specific use or activity, or impose conditions or restrictions on a use or activity.
(3) Terminate a restriction, limit, closure, designation, condition, or visiting hour restriction imposed under paragraph (a)(1) or (2) of this section.
(b) Except in emergency situations, a closure, designation, use or activity restriction or condition, or the termination or relaxation of such, which is of a nature, magnitude and duration that will result in a significant alteration in the public use pattern of the area administered by the Presidio Trust, adversely affect the natural, aesthetic, scenic or cultural values of the area administered by the Presidio Trust, require a long-term or significant modification in the resource management objectives of the area administered by the Presidio Trust, or is of a highly controversial nature, shall be published as rulemaking in the
(c) Except in emergency situations, prior to implementing or terminating a restriction, condition, public use limit or closure, the Board shall prepare a written determination justifying the action. That determination shall set forth the reason(s) the restriction, condition, public use limit or closure authorized by paragraph (a) of this section has been established, and an explanation of why less restrictive measures will not suffice, or in the case of a termination of a restriction, condition, public use limit or closure previously established under paragraph (a) of this section, a determination as to why the restriction is no longer necessary and a finding that the termination will not adversely impact resources of the area administered by the Presidio Trust. This determination shall be available to the public upon request.
(d) To implement a public use limit, the Board may establish a permit, registration, or reservation system. Permits shall be issued in accordance with the criteria and procedures of § 1001.6.
(e) Except in emergency situations, the public will be informed of closures, designations, and use or activity restrictions or conditions, visiting hours, public use limits, public use limit procedures, and the termination or relaxation of such, in accordance with § 1001.7.
(f) Violating a closure, designation, use or activity restriction or condition, schedule of visiting hours, or public use limit is prohibited.
§ 1001.6 Permits.
(a) When authorized by regulations set forth in this chapter, the Executive Director may issue a permit to authorize an otherwise prohibited or restricted activity or impose a public use limit. The activity authorized by a permit shall be consistent with applicable legislation, Federal regulations and administrative policies, and based upon a determination that public health and safety, environmental or scenic values, natural or cultural resources, scientific research, implementation of management responsibilities, proper allocation and use of facilities, or the avoidance of conflict among visitor use activities will not be adversely impacted.
(b) Except as otherwise provided, application for a permit shall be submitted to the Executive Director during normal business hours.
(c) The public will be informed of the existence of a permit requirement in accordance with § 1001.7.
(d) Unless otherwise provided for by the regulations in this chapter, the Executive Director shall deny a permit that has been properly applied for only upon a determination that the designated capacity for an area or facility would be exceeded; or that one or more of the factors set forth in paragraph (a) of this section would be adversely impacted. The basis for denial shall be provided to the applicant upon request.
(e) The Executive Director shall include in a permit the terms and conditions that the Executive Director deems necessary to protect resources of the area administered by the Presidio Trust or public safety and may also include terms or conditions established pursuant to the authority of any other section of this chapter.
(f) A compilation of those activities requiring a permit shall be maintained by the Executive Director and available to the public upon request.
(g) The following are prohibited:
(1) Engaging in an activity subject to a permit requirement imposed pursuant to this section without obtaining a permit; or
(2) Violating a term or condition of a permit issued pursuant to this section.
(h) Violating a term or condition of a permit issued pursuant to this section may also result in the suspension or revocation of the permit by the Executive Director.
§ 1001.7 Public notice.
(a) Whenever the authority of § 1001.5(a) is invoked to restrict or control a public use or activity, to relax or revoke an existing restriction or control, to designate all or a portion of the area administered by the Presidio Trust as open or closed, or to require a permit to implement a public use limit, the public shall be notified by one or more of the following methods:
(1) Signs posted at conspicuous locations, such as normal points of entry and reasonable intervals along the boundary of the affected locale.
(2) Maps available in the office of the Presidio Trust and other places convenient to the public.
(3) Publication in a newspaper of general circulation in the affected area.
(4) Other appropriate methods, such as the removal of closure signs, use of electronic media, brochures, maps and handouts.
(b) In addition to the above-described notification procedures, the Board shall compile in writing all the designations, closures, permit requirements and other restrictions imposed under discretionary authority. This compilation shall be updated annually and made available to the public upon request.
§ 1001.8 Information collection.
The information collection requirements contained in 36 CFR 1001.5, 1002.5, 1002.10, 1002.12, 1002.17, 1002.33, 1002.38, 1002.50, 1002.51, 1002.52, 1002.60, 1002.61, 1002.62, 1004.4 and 1004.11 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq., and assigned clearance number 1024-0026. This information is being collected to provide the Executive Director data necessary to issue permits for special uses of the area administered by the Presidio Trust and to obtain notification of accidents that occur within the area administered by the Presidio Trust. This information will be used to grant administrative benefits and to facilitate prompt emergency response to accidents. In 36 CFR 1002.33 and 1004.4, the obligation to respond is mandatory; in all other sections the obligation to respond is required in order to obtain a benefit.
§ 1001.10 Symbolic signs.
(a) The signs pictured in 36 CFR 1.10 provide general information and regulatory guidance in the area administered by the Presidio Trust. Certain of the signs designate activities that are either allowed or prohibited. Activities symbolized by a sign bearing a slash mark are prohibited.
(b) The use of other types of signs not herein depicted is not precluded.
PART 1002—RESOURCE PROTECTION, PUBLIC USE AND RECREATION
§ 1002.1 Preservation of natural, cultural and archeological resources.
(a) Except as otherwise provided in this chapter, the following is prohibited:
(1) Possessing, destroying, injuring, defacing, removing, digging, or disturbing from its natural state:
(i) Living or dead wildlife or fish, or the parts or products thereof, such as antlers or nests.
(ii) Plants or the parts or products thereof.
(iii) Nonfossilized and fossilized paleontological specimens, cultural or archeological resources, or the parts thereof.
(iv) A mineral resource or cave formation or the parts thereof.
(2) Introducing wildlife, fish or plants, including their reproductive bodies, into an ecosystem within the area administered by the Presidio Trust.
(3) Tossing, throwing or rolling rocks or other items inside caves or caverns, into valleys, canyons, or caverns, down hillsides or mountainsides, or into thermal features.
(4) Using or possessing wood gathered from within the area administered by the Presidio Trust: Provided, however, that the Board may designate areas where dead wood on the ground may be collected for use as fuel for campfires within the area administered by the Presidio Trust.
(5) Walking on, climbing, entering, ascending, descending, or traversing an archeological or cultural resource, monument, or statue, except in designated areas and under conditions established by the Board.
(6) Possessing, destroying, injuring, defacing, removing, digging, or disturbing a structure or its furnishing or fixtures, or other cultural or archeological resources.
(7) Possessing or using a mineral or metal detector, magnetometer, side scan sonar, other metal detecting device, or subbottom profiler. This paragraph does not apply to:
(i) A device broken down and stored or packed to prevent its use while in the area administered by the Presidio Trust.
(ii) Electronic equipment used primarily for the navigation and safe operation of boats and aircraft.
(iii) Mineral or metal detectors, magnetometers, or subbottom profilers used for authorized scientific, mining, or administrative activities.
(b) The Board may restrict hiking or pedestrian use to a designated trail or walkway system pursuant to §§ 1001.5 and 1001.7 of this chapter. Leaving a trail or walkway to shortcut between portions of the same trail or walkway, or to shortcut to an adjacent trail or walkway in violation of designated restrictions is prohibited.
(c)(1) The Board may designate certain fruits, berries, nuts, or unoccupied seashells which may be gathered by hand for personal use or consumption upon a written determination that the gathering or consumption will not adversely affect wildlife, the reproductive potential of a plant species, or otherwise adversely affect the resources of the area administered by the Presidio Trust.
(2) The Board may:
(i) Limit the size and quantity of the natural products that may be gathered or possessed for this purpose; or
(ii) Limit the location where natural products may be gathered; or
(iii) Restrict the possession and consumption of natural products to the area administered by the Presidio Trust.
(3) The following are prohibited:
(i) Gathering or possessing undesignated natural products.
(ii) Gathering or possessing natural products in violation of the size or quantity limits designated by the Board.
(iii) Unauthorized removal of natural products from the area administered by the Presidio Trust.
(iv) Gathering natural products outside of designated areas.
(v) Sale or commercial use of natural products.
(d) This section shall not be construed as authorizing the taking, use or possession of fish, wildlife or plants for ceremonial or religious purposes, except where specifically authorized by Federal statutory law, treaty rights, or in accordance with § 1002.2 or § 1002.3.
§ 1002.2 Wildlife protection.
(a) The following are prohibited:
(1) The taking of wildlife.
(2) The feeding, touching, teasing, frightening or intentional disturbing of wildlife nesting, breeding or other activities.
(3) Possessing unlawfully taken wildlife or portions thereof.
(b) Hunting and trapping. Hunting and trapping are prohibited within the area administered by the Presidio Trust.
(c) The Board may establish conditions and procedures for transporting lawfully taken wildlife through the area administered by the Presidio Trust. Violation of these conditions and procedures is prohibited.
(d) The Board may designate all or portions of the area administered by the Presidio Trust as closed to the viewing of wildlife with an artificial light. Use of an artificial light for purposes of viewing wildlife in closed areas is prohibited.
(e) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
§ 1002.3 Fishing.
Fishing is prohibited within the area administered by the Presidio Trust.
§ 1002.4 Weapons, traps and nets.
(a)(1) Except as otherwise provided in this section, the following are prohibited:
(i) Possessing a weapon, trap or net.
(ii) Carrying a weapon, trap or net.
(iii) Using a weapon, trap or net.
(2) Weapons, traps or nets may be carried, possessed or used:
(i) At designated times and locations in the area administered by the Presidio Trust where:
(A) The taking of wildlife is authorized by law in accordance with § 1002.2;
(B) The taking of fish is authorized by law in accordance with § 1002.3.
(ii) Within a residential dwelling. For purposes of this paragraph only, the term “residential dwelling” means a fixed housing structure which is either the principal residence of its occupants, or is occupied on a regular and recurring basis by its occupants as an alternate residence or vacation home.
(3) Traps, nets and unloaded weapons may be possessed within a temporary lodging or mechanical mode of conveyance when such implements are rendered temporarily inoperable or are packed, cased or stored in a manner that will prevent their ready use.
(b) Carrying or possessing a loaded weapon in a motor vehicle, vessel or other mode of transportation is prohibited, except that carrying or possessing a loaded weapon in a vessel is allowed when such vessel is not being propelled by machinery and is used as a shooting platform in accordance with Federal and State law.
(c) The use of a weapon, trap or net in a manner that endangers persons or property is prohibited.
(d) Authorized Federal, State and local law enforcement officers may carry firearms in the performance of their official duties.
(e) The carrying or possessing of a weapon, trap or net in violation of applicable Federal and State laws is prohibited.
(f) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
§ 1002.5 Research specimens.
(a) Taking plants, fish, wildlife, rocks or minerals except in accordance with other regulations of this chapter or pursuant to the terms and conditions of a specimen collection permit, is prohibited.
(b) A specimen collection permit may be issued only to an official representative of a reputable scientific or educational institution or a State or Federal agency for the purpose of research, baseline inventories, monitoring, impact analysis, group study, or museum display when the Executive Director determines that the collection is necessary to the stated scientific or resource management goals of the institution or agency and that all applicable Federal and State permits have been acquired, and that the intended use of the specimens and their final disposal is in accordance with applicable law and Federal administrative policies. A permit shall not be issued if removal of the specimen would result in damage to other natural or cultural resources, affect adversely environmental or scenic values, or if the specimen is readily available outside of the area administered by the Presidio Trust.
(c) A permit to take an endangered or threatened species listed pursuant to the Endangered Species Act, or similarly identified by the States, shall not be issued unless the species cannot be obtained outside of the area administered by the Presidio Trust and the primary purpose of the collection is to enhance the protection or management of the species.
(d) A permit authorizing the killing of plants, fish or wildlife may be issued only when the Executive Director approves a written research proposal and determines that the collection will not be inconsistent with the purposes of the Presidio Trust Act and has the potential for conserving and perpetuating the species subject to collection.
(e) Specimen collection permits shall contain the following conditions:
(1) Specimens placed in displays or collections will bear official National Park Service museum labels and their catalog numbers will be registered in the National Park Service National Catalog.
(2) Specimens and data derived from consumed specimens will be made available to the public and reports and publications resulting from a research specimen collection permit shall be filed with the Executive Director.
(f) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
§ 1002.6 Commercial dog walking.
(a) The walking of more than six dogs at one time by any one person for consideration (commercial dog walking) is prohibited within the area administered by the Presidio Trust.
(b) The walking of more than three dogs, with a limit of six dogs, at one time by any one person for consideration (commercial dog walking) within the area administered by the Presidio Trust, where dog walking is otherwise allowed, is hereby authorized provided that:
(1) That person has a valid commercial dog walking permit issued by the Golden Gate National Recreation Area (GGNRA);
(2) The walking of more than three dogs, with a limit of six dogs, is done pursuant to the conditions of that permit; and
(3) The commercial dog walker badge issued to the permittee by the GGNRA shall be visibly displayed at all times as directed in the permit while the permittee is engaging in commercial dog walking activities, and shall be provided upon request to any person authorized to enforce this provision.
§ 1002.10 Camping and food storage.
(a) The Board may require permits, designate sites or areas, and establish conditions for camping.
(b) The following are prohibited:
(1) Digging or leveling the ground at a campsite.
(2) Leaving camping equipment, site alterations, or refuse after departing from the campsite.
(3) Camping within 25 feet of a water hydrant or main road, or within 100 feet of a flowing stream, river or body of water, except as designated.
(4) Creating or sustaining unreasonable noise between the hours of 10:00 p.m. and 6:00 a.m., considering the nature and purpose of the actor’s conduct, impact on visitors or tenants, location, and other factors which would govern the conduct of a reasonably prudent person under the circumstances.
(5) The installation of permanent camping facilities.
(6) Displaying wildlife carcasses or other remains or parts thereof.
(7) Connecting to a utility system, except as designated.
(8) Failing to obtain a permit, where required.
(9) Violating conditions which may be established by the Board.
(10) Camping outside of designated sites or areas.
(c) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
(d) Food storage. The Board may designate all or a portion of the area administered by the Presidio Trust where food, lawfully taken fish or wildlife, garbage, and equipment used to cook or store food must be kept sealed in a vehicle, or in a camping unit that is constructed of solid, non-pliable material, or suspended at least 10 feet above the ground and 4 feet horizontally from a post, tree trunk, or other object, or shall be stored as otherwise designated. Violation of this restriction is prohibited. This restriction does not apply to food that is being transported, consumed, or prepared for consumption.
§ 1002.11 Picnicking.
Picnicking is allowed, except in designated areas closed in accordance with § 1001.5 of this chapter. The Board may establish conditions for picnicking in areas where picnicking is allowed. Picnicking in violation of established conditions is prohibited.
§ 1002.12 Audio disturbances.
(a) The following are prohibited:
(1) Operating motorized equipment or machinery such as an electric generating plant, motor vehicle, motorized toy, or an audio device, such as a radio, television set, tape deck or musical instrument, in a manner that exceeds a noise level of 60 decibels measured on the A-weighted scale at 50 feet; or that, if below that level, nevertheless makes noise which is unreasonable, considering the nature and purpose of the actor’s conduct, location, time of day or night, purposes of the Presidio Trust Act, impact on visitors or tenants, and other factors that would govern the conduct of a reasonably prudent person under the circumstances.
(2) In developed areas, operating a power saw, except pursuant to the terms and conditions of a permit.
(3) In nondeveloped areas, operating any type of portable motor or engine, or device powered by a portable motor or engine, except pursuant to the terms and conditions of a permit.
(4) Operating a public address system, except in connection with a public gathering or special event for which a permit has been issued pursuant to § 1002.50 or § 1002.51.
(b) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
§ 1002.13 Fires.
(a) The following are prohibited:
(1) Lighting or maintaining a fire, except in designated areas or receptacles and under conditions that may be established by the Board.
(2) Using stoves or lanterns in violation of established restrictions.
(3) Lighting, tending, or using a fire, stove or lantern in a manner that threatens, causes damage to, or results in the burning of property, real property or resources of the area administered by the Presidio Trust, or creates a public safety hazard.
(4) Leaving a fire unattended.
(5) Throwing or discarding lighted or smoldering material in a manner that threatens, causes damage to, or results in the burning of property or resources of the area administered by the Presidio Trust, or creates a public safety hazard.
(b) Fires shall be extinguished upon termination of use and in accordance with such conditions as may be established by the Board. Violation of these conditions is prohibited.
(c) During periods of high fire danger, the Executive Director may close all or a portion of the area administered by the Presidio Trust to the lighting or maintaining of a fire.
(d) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
§ 1002.14 Sanitation and refuse.
(a) The following are prohibited:
(1) Disposing of refuse in other than refuse receptacles.
(2) Using government refuse receptacles or other refuse facilities for dumping household, commercial, or industrial refuse, brought as such from private or municipal property, except in accordance with conditions established by the Executive Director.
(3) Depositing refuse in the plumbing fixtures or vaults of a toilet facility.
(4) Draining refuse from a trailer or other vehicle, except in facilities provided for such purpose.
(5) Bathing, or washing food, clothing, dishes, or other property at public water outlets, fixtures or pools, except at those designated for such purpose.
(6) Polluting or contaminating waters or water courses within the area administered by the Presidio Trust.
(7) Disposing of fish remains on land, or in waters within 200 feet of boat docks or designated swimming beaches, or within developed areas, except as otherwise designated.
(8) In developed areas, the disposal of human body waste, except at designated locations or in fixtures provided for that purpose.
(9) In nondeveloped areas, the disposal of human body waste within 100 feet of a water source, high water mark of a body of water, or a campsite, or within sight of a trail, except as otherwise designated.
(b) The Board may establish conditions concerning the disposal, containerization, or carryout of human body waste. Violation of these conditions is prohibited.
§ 1002.15 Pets.
(a) The following are prohibited:
(1) Possessing a pet in a public building, public transportation vehicle, or location designated as a swimming beach, or any structure or area closed to the possession of pets by the Board. This paragraph shall not apply to guide dogs accompanying visually impaired persons or hearing ear dogs accompanying hearing-impaired persons.
(2) Failing to crate, cage, restrain on a leash which shall not exceed six feet in length, or otherwise physically confine a pet at all times.
(3) Leaving a pet unattended and tied to an object, except in designated areas or under conditions which may be established by the Board.
(4) Allowing a pet to make noise that is unreasonable considering location, time of day or night, impact on visitors or tenants, and other relevant factors, or that frightens wildlife by barking, howling, or making other noise.
(5) Failing to comply with pet excrement disposal conditions which may be established by the Board.
(b) Pets or feral animals that are running-at-large and observed by an authorized person in the act of killing, injuring or molesting humans, livestock, or wildlife may be destroyed if necessary for public safety or protection of wildlife, livestock, or other resources of the area administered by the Presidio Trust.
(c) Pets running-at-large may be impounded, and the owner may be charged reasonable fees for kennel or boarding costs, feed, veterinarian fees, transportation costs, and disposal. An impounded pet may be put up for adoption or otherwise disposed of after being held for 72 hours from the time the owner was notified of capture or 72 hours from the time of capture if the owner is unknown.
(d) Pets may be kept by residents of the area administered by the Presidio Trust consistent with the provisions of this section and in accordance with conditions which may be established by the Board. Violation of these conditions is prohibited.
(e) This section does not apply to dogs used by authorized Federal, State and local law enforcement officers in the performance of their official duties.
§ 1002.16 Horses and pack animals.
The following are prohibited:
(a) The use of animals other than those designated as “pack animals” for purposes of transporting equipment.
(b) The use of horses or pack animals outside of trails, routes or areas designated for their use.
(c) The use of horses or pack animals on a Presidio Trust road, except where such travel is necessary to cross to or from designated trails, or areas, or privately owned property, and no alternative trails or routes have been designated; or when the road has been closed to motor vehicles.
(d) Free-trailing or loose-herding of horses or pack animals on trails, except as designated.
(e) Allowing horses or pack animals to proceed in excess of a slow walk when passing in the immediate vicinity of persons on foot or bicycle.
(f) Obstructing a trail, or making an unreasonable noise or gesture, considering the nature and purpose of the actor’s conduct, and other factors that would govern the conduct of a reasonably prudent person, while horses or pack animals are passing.
(g) Violation of conditions which may be established by the Board concerning the use of horses or pack animals.
§ 1002.17 Aircraft and air delivery.
(a) Delivering or retrieving a person or object by parachute, helicopter, or other airborne means, except in emergencies involving public safety or serious property loss, or pursuant to the terms and conditions of a permit, is prohibited.
(b) The provisions of this section, other than paragraph (c) of this section, shall not be applicable to official business of the Federal government, or emergency rescues in accordance with the directions of the Executive Director, or to landings due to circumstances beyond the control of the operator.
(c)(1) Except as provided in paragraph (c)(3) of this section, the owners of a downed aircraft shall remove the aircraft and all component parts thereof in accordance with procedures established by the Executive Director. In establishing removal procedures, the Executive Director is authorized to establish a reasonable date by which aircraft removal operations must be complete; determine times and means of access to and from the downed aircraft; and specify the manner or method of removal.
(2) Failure to comply with procedures and conditions established under paragraph (c)(1) of this section is prohibited.
(3) The Executive Director may waive the requirements of paragraph (c)(1) of this section or prohibit the removal of downed aircraft, upon a determination that the removal of downed aircraft would constitute an unacceptable risk to human life; the removal of a downed aircraft would result in extensive resource damage; or the removal of a downed aircraft is impracticable or impossible.
(d) The use of aircraft shall be in accordance with regulations of the Federal Aviation Administration as found in 14 CFR chapter I.
(e) The operation or use of hovercraft is prohibited.
(f) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
(g) The use of devices designed to carry persons through the air in powerless flight is allowed at times and locations designated by the Board, pursuant to the terms and conditions of a permit.
§ 1002.18 Snowmobiles.
The use of snowmobiles is prohibited.
§ 1002.19 Winter activities.
(a) Skiing, snowshoeing, ice skating, sledding, innertubing, tobogganing and similar winter sports are prohibited on Presidio Trust roads and in parking areas open to motor vehicle traffic, except as otherwise designated.
(b) The towing of persons on skis, sleds, or other sliding devices by motor vehicle or snowmobile is prohibited, except in designated areas or routes.
(c) Failure to abide by area designations or activity restrictions established under this section is prohibited.
§ 1002.20 Skating, skateboards and similar devices.
Using roller skates, skateboards, roller skis, coasting vehicles, or similar devices is prohibited, except in designated areas.
§ 1002.21 Smoking.
(a) The Board may designate a portion of the area administered by the Presidio Trust, or all or a portion of a building, structure or facility as closed to smoking when necessary to protect resources, reduce the risk of fire, or prevent conflicts among visitor use activities. Smoking in an area or location so designated is prohibited.
(b) Smoking is prohibited within all caves and caverns.
§ 1002.22 Property.
(a) The following are prohibited:
(1) Abandoning property.
(2) Leaving property unattended for longer than 24 hours, except in locations where longer time periods have been designated or in accordance with conditions established by the Board.
(3) Failing to turn in found property to the Executive Director as soon as practicable.
(b) Impoundment of property. (1) Property determined to be left unattended in excess of an allowed period of time may be impounded by the Executive Director.
(2) Unattended property that interferes with visitor safety or orderly management of the area administered by the Presidio Trust, or that presents a threat to resources of the area administered by the Presidio Trust may be impounded by the Executive Director at any time.
(3) Found or impounded property shall be inventoried to determine ownership and safeguard personal property.
(4) The owner of record is responsible and liable for charges to the person who has removed, stored, or otherwise disposed of property impounded pursuant to this section; or the Executive Director may assess the owner reasonable fees for the impoundment and storage of property impounded pursuant to this section.
(c) Disposition of property. (1) Unattended property impounded pursuant to this section shall be deemed to be abandoned unless claimed by the owner or an authorized representative thereof within 60 days. The 60-day period shall begin when the rightful owner of the property has been notified, if the owner can be identified, or from the time the property was placed in the Executive Director’s custody, if the owner cannot be identified.
(2) Unclaimed, found property shall be stored for a minimum period of 60 days and, unless claimed by the owner or an authorized representative thereof, may be claimed by the finder, provided that the finder is not an employee of the Presidio Trust. Found property not claimed by the owner or an authorized representative or the finder shall be deemed abandoned.
(3) Abandoned property shall be disposed of in accordance with law.
(4) Property, including real property, located within the area administered by the Presidio Trust and owned by a deceased person, shall be disposed of in accordance with the laws of the State within whose exterior boundaries the property is located.
(d) The regulations contained in paragraphs (a)(2), (b) and (c) of this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
§ 1002.23 Recreation fees.
(a) Recreation fees shall be charged in the area administered by the Presidio Trust to the same extent that recreation fees have been established for the Golden Gate National Recreation Area in accordance with 36 CFR part 71.
(b) Entering designated entrance fee areas or using specialized sites, facilities, equipment or services, or participating in group activities, recreation events, or other specialized recreation uses for which recreation fees have been established without paying the required fees and possessing the applicable permits is prohibited. Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
(c) The Executive Director may, when in the public interest, prescribe periods during which the collection of recreation fees shall be suspended.
§ 1002.30 Misappropriation of property and services.
(a) The following are prohibited:
(1) Obtaining or exercising unlawful possession over the property of another with the purpose to deprive the owner of the property.
(2) Obtaining property or services offered for sale or compensation without making payment or offering to pay.
(3) Obtaining property or services offered for sale or compensation by means of deception or a statement of past, present or future fact that is instrumental in causing the wrongful transfer of property or services, or using stolen, forged, expired, revoked or fraudulently obtained credit cards or paying with negotiable paper on which payment is refused.
(4) Concealing unpurchased merchandise on or about the person without the knowledge or consent of the seller or paying less than purchase price by deception.
(5) Acquiring or possessing the property of another, with knowledge or reason to believe that the property is stolen.
(b) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
§ 1002.31 Trespassing, tampering and vandalism.
(a) The following are prohibited:
(1) Trespassing. Trespassing, entering or remaining in or upon property or real property not open to the public, except with the express invitation or consent of the person having lawful control of the property or real property.
(2) Tampering. Tampering or attempting to tamper with property or real property, or moving, manipulating or setting in motion any of the parts thereof, except when such property is under one’s lawful control or possession.
(3) Vandalism. Destroying, injuring, defacing, or damaging property or real property.
(b) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
§ 1002.32 Interfering with agency functions.
(a) The following are prohibited:
(1) Interference. Threatening, resisting, intimidating, or intentionally interfering with a government employee or agent engaged in an official duty, or on account of the performance of an official duty.
(2) Lawful order. Violating the lawful order of a government employee or agent authorized to maintain order and control public access and movement during fire fighting operations, search and rescue operations, wildlife management operations involving animals that pose a threat to public safety, law enforcement actions, and emergency operations that involve a threat to public safety or resources of the area administered by the Presidio Trust, or other activities where the control of public movement and activities is necessary to maintain order and public safety.
(3) False information. Knowingly giving a false or fictitious report or other false information to an authorized person investigating an accident or violation of law or regulation, or on an application for a permit.
(4) False Report. Knowingly giving a false report for the purpose of misleading a government employee or agent in the conduct of official duties, or making a false report that causes a response by the United States to a fictitious event.
(b) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
§ 1002.33 Report of injury or damage.
(a) A person involved in an incident resulting in personal injury or property damage exceeding $300, other than an accident reportable under § 1004.4 of this chapter, shall report the incident to the Executive Director as soon as possible. This notification does not satisfy reporting requirements imposed by applicable State law.
(b) Failure to report an incident in accordance with paragraph (a) of this section is prohibited.
§ 1002.34 Disorderly conduct.
(a) A person commits disorderly conduct when, with intent to cause public alarm, nuisance, jeopardy or violence, or knowingly or recklessly creating a risk thereof, such person commits any of the following prohibited acts:
(1) Engages in fighting or threatening, or in violent behavior.
(2) Uses language, an utterance, or gesture, or engages in a display or act that is obscene, physically threatening or menacing, or done in a manner that is likely to inflict injury or incite an immediate breach of the peace.
(3) Makes noise that is unreasonable, considering the nature and purpose of the actor’s conduct, location, time of day or night, and other factors that would govern the conduct of a reasonably prudent person under the circumstances.
(4) Creates or maintains a hazardous or physically offensive condition.
(b) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
§ 1002.35 Alcoholic beverages and controlled substances.
(a) Alcoholic beverages. (1) The use and possession of alcoholic beverages within the area administered by the Presidio Trust is allowed in accordance with the provisions of this section.
(2) The following are prohibited:
(i) The sale or gift of an alcoholic beverage to a person under 21 years of age, except where allowed by State law. In a State where a lower minimum age is established, that age limit will apply for purposes of this paragraph.
(ii) The possession of an alcoholic beverage by a person under 21 years of age, except where allowed by State law. In a State where a lower minimum age is established, that age will apply for purposes of this paragraph.
(3)(i) The Board may close all or a portion of a public use area or public facility within the area administered by the Presidio Trust to the consumption of alcoholic beverages and/or to the possession of a bottle, can or other receptacle containing an alcoholic beverage that is open, or that has been opened, or whose seal is broken or the contents of which have been partially removed. Provided however, that such a closure may only be implemented following a determination made by the Board that:
(A) The consumption of an alcoholic beverage or the possession of an open container of an alcoholic beverage would be inappropriate considering other uses of the location and the purpose for which it is maintained or established; or
(B) Incidents of aberrant behavior related to the consumption of alcoholic beverages are of such magnitude that the diligent application of the authorities in this section and §§ 1001.5 and 1002.34 of this chapter, over a reasonable time period, does not alleviate the problem.
(ii) A closure imposed by the Board does not apply to an open container of an alcoholic beverage that is stored in compliance with the provisions of § 1004.14 of this chapter.
(iii) Violating a closure imposed pursuant to this section is prohibited.
(b) Controlled substances. The following are prohibited:
(1) The delivery of a controlled substance, except when distribution is made by a practitioner in accordance with applicable law. For the purposes of this paragraph, delivery means the actual, attempted or constructive transfer of a controlled substance whether or not there exists an agency relationship.
(2) The possession of a controlled substance, unless such substance was obtained by the possessor directly, or pursuant to a valid prescription or order, from a practitioner acting in the course of professional practice or otherwise allowed by Federal or State law.
(c) Presence within the area administered by the Presidio Trust when under the influence of alcohol or a controlled substance to a degree that may endanger oneself or another person, or damage property or resources of the area administered by the Presidio Trust, is prohibited.
§ 1002.36 Gambling.
(a) Gambling in any form, or the operation of gambling devices, is prohibited.
(b) This regulation applies, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
§ 1002.37 Noncommercial soliciting.
Soliciting or demanding gifts, money, goods or services is prohibited, except pursuant to the terms and conditions of a permit that has been issued under § 1002.50, § 1002.51 or § 1002.52.
§ 1002.38 Explosives.
(a) Using, possessing, storing, or transporting explosives, blasting agents or explosive materials is prohibited, except pursuant to the terms and conditions of a permit. When permitted, the use, possession, storage and transportation shall be in accordance with applicable Federal and State laws.
(b) Using or possessing fireworks and firecrackers is prohibited, except pursuant to the terms and conditions of a permit or in designated areas under such conditions as the Board may establish, and in accordance with applicable State law.
(c) Violation of the conditions established by the Board or of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
§ 1002.50 Special events.
(a) Sports events, pageants, regattas, public spectator attractions, entertainments, ceremonies, and similar events are allowed: Provided, however, There is a meaningful association between the area administered by the Presidio Trust and the events, and the observance contributes to visitor understanding of the significance of the area administered by the Presidio Trust, and a permit therefor has been issued by the Executive Director. A permit shall be denied if such activities would:
(1) Cause injury or damage to resources of the area administered by the Presidio Trust; or
(2) Be contrary to the purposes of the Presidio Trust Act; or
(3) Unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the Presidio Trust or the National Park Service; or
(4) Substantially impair the operation of public use facilities or services of Presidio Trust concessioners or contractors; or
(5) Present a clear and present danger to the public health and safety; or
(6) Result in significant conflict with other existing uses.
(b) An application for such a permit shall set forth the name of the applicant, the date, time, duration, nature and place of the proposed event, an estimate of the number of persons expected to attend, a statement of equipment and facilities to be used, and any other information required by the Executive Director. The application shall be submitted so as to reach the Executive Director at least 72 hours in advance of the proposed event.
(c) As a condition of permit issuance, the Executive Director may require:
(1) The filing of a bond payable to the Presidio Trust, in an amount adequate to cover costs such as restoration, rehabilitation, and cleanup of the area used, and other costs resulting from the special event. In lieu of a bond, a permittee may elect to deposit cash equal to the amount of the required bond.
(2) In addition to the requirements of paragraph (c)(1) of this section, the acquisition of liability insurance in which the United States is named as co-insured in an amount sufficient to protect the United States.
(d) The permit may contain such conditions as are reasonably consistent with protection and use of the area administered by the Presidio Trust for the purposes of the Presidio Trust Act. It may also contain reasonable limitations on the equipment used and the time and area within which the event is allowed.
(e) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
§ 1002.51 Public assemblies, meetings.
(a) Public assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views are allowed within the area administered by the Presidio Trust, provided a permit therefor has been issued by the Executive Director.
(b) An application for such a permit shall set forth the name of the applicant; the date, time, duration, nature and place of the proposed event; an estimate of the number of persons expected to attend; a statement of equipment and facilities to be used and any other information required by the permit application form.
(c) The Executive Director shall, without unreasonable delay, issue a permit on proper application unless:
(1) A prior application for a permit for the same time and place has been made that has been or will be granted and the activities authorized by that permit do not reasonably allow multiple occupancy of that particular area; or
(2) It reasonably appears that the event will present a clear and present danger to the public health or safety; or
(3) The event is of such nature or duration that it cannot reasonably be accommodated in the particular location applied for, considering such things as damage to resources or facilities of the area administered by the Presidio Trust, impairment of a protected area’s atmosphere of peace and tranquillity, interference with program activities, or impairment of public use facilities.
(d) If a permit is denied, the applicant shall be so informed in writing, with the reason(s) for the denial set forth.
(e) The Board shall designate on a map, that shall be available in the office of the Presidio Trust, the locations available for public assemblies. Locations may be designated as not available only if such activities would:
(1) Cause injury or damage to resources of the area administered by the Presidio Trust; or
(2) Unreasonably impair the atmosphere of peace and tranquillity maintained in wilderness, natural, historic or commemorative zones; or
(3) Unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the Presidio Trust or the National Park Service; or
(4) Substantially impair the operation of public use facilities or services of Presidio Trust concessioners or contractors; or
(5) Present a clear and present danger to the public health and safety.
(f) The permit may contain such conditions as are reasonably consistent with protection and use of the area administered by the Presidio Trust for the purposes of the Presidio Trust Act. It may also contain reasonable limitations on the equipment used and the time and area within which the event is allowed.
(g) No permit shall be issued for a period in excess of 7 days, provided that permits may be extended for like periods, upon a new application, unless another applicant has requested use of the same location and multiple occupancy of that location is not reasonably possible.
(h) It is prohibited for persons engaged in activities covered under this section to obstruct or impede pedestrians or vehicles, or harass visitors with physical contact.
(i) A permit may be revoked under any of those conditions, as listed in paragraph (c) of this section, that constitute grounds for denial of a permit, or for violation of the terms and conditions of the permit. Such a revocation shall be made in writing, with the reason(s) for revocation clearly set forth, except under emergency circumstances, when an immediate verbal revocation or suspension may be made to be followed by written confirmation within 72 hours.
(j) Violation of the terms and conditions of a permit issued in accordance with this section may result in the suspension or revocation of the permit.
§ 1002.52 Sale or distribution of printed matter.
(a) The sale or distribution of printed matter is allowed within the area administered by the Presidio Trust, provided that a permit to do so has been issued by the Executive Director, and provided further that the printed matter is not solely commercial advertising.
(b) An application for such a permit shall set forth the name of the applicant; the name of the organization (if any); the date, time, duration, and location of the proposed sale or distribution; the number of participants; and any other information required by the permit application form.
(c) The Executive Director shall, without unreasonable delay, issue a permit on proper application unless:
(1) A prior application for a permit for the same time and location has been made that has been or will be granted and the activities authorized by that permit do not reasonably allow multiple occupancy of the particular area; or
(2) It reasonably appears that the sale or distribution will present a clear and present danger to the public health and safety; or
(3) The number of persons engaged in the sale or distribution exceeds the number that can reasonably be accommodated in the particular location applied for, considering such things as damage to resources or facilities of the area administered by the Presidio Trust, impairment of a protected area’s atmosphere of peace and tranquillity, interference with program activities, or impairment of public use facilities; or
(4) The location applied for has not been designated as available for the sale or distribution of printed matter; or
(5) The activity would constitute a violation of an applicable law or regulation.
(d) If a permit is denied, the applicant shall be so informed in writing, with the reason(s) for the denial set forth.
(e) The Board shall designate on a map, which shall be available for inspection in the office of the Presidio Trust, the locations within the area administered by the Presidio Trust that are available for the sale or distribution of printed matter. Locations may be designated as not available only if the sale or distribution of printed matter would:
(1) Cause injury or damage to resources of the area administered by the Presidio Trust; or
(2) Unreasonably impair the atmosphere of peace and tranquillity maintained in wilderness, natural, historic, or commemorative zones; or
(3) Unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the Presidio Trust or the National Park Service; or
(4) Substantially impair the operation of public use facilities or services of Presidio Trust concessioners or contractors; or
(5) Present a clear and present damage to the public health and safety.
(f) The permit may contain such conditions as are reasonably consistent with protection and use of the area administered by the Presidio Trust for the purposes of the Presidio Trust Act.
(g) No permit shall be issued for a period in excess of 14 consecutive days, provided that permits may be extended for like periods, upon a new application, unless another applicant has requested use of the same location and multiple occupancy of that location is not reasonably possible.
(h) It is prohibited for persons engaged in the sale or distribution of printed matter under this section to obstruct or impede pedestrians or vehicles, harass visitors with physical contact or persistent demands, misrepresent the purposes or affiliations of those engaged in the sale or distribution, or misrepresent whether the printed matter is available without cost or donation.
(i) A permit may be revoked under any of those conditions, as listed in paragraph (c) of this section, that constitute grounds for denial of a permit, or for violation of the terms and conditions of the permit. Such a revocation shall be made in writing, with the reason(s) for revocation clearly set forth, except under emergency circumstances, when an immediate verbal revocation or suspension may be made, to be followed by written confirmation within 72 hours.
(j) Violation of the terms and conditions of a permit issued in accordance with this section may result in the suspension or revocation of the permit.
§ 1002.60 Livestock use and agriculture.
(a) The running-at-large, herding, driving across, allowing on, pasturing or grazing of livestock of any kind within the area administered by the Presidio Trust or the use of such area for agricultural purposes is prohibited, except:
(1) As specifically authorized by Federal statutory law; or
(2) As required under a reservation of use rights arising from acquisition of a tract of land; or
(3) As designated, when conducted as a necessary and integral part of a recreational activity or required in order to maintain a historic scene.
(b) Activities authorized pursuant to any of the exceptions provided for in paragraph (a) of this section shall be allowed only pursuant to the terms and conditions of a license, permit or lease. Violation of the terms and conditions of a license, permit or lease issued in accordance with this paragraph is prohibited and may result in the suspension or revocation of the license, permit, or lease.
(c) Impounding of livestock. (1) Livestock trespassing within the area administered by the Presidio Trust may be impounded by the Executive Director and, if not claimed by the owner within the periods specified in this paragraph, shall be disposed of in accordance with applicable Federal and State law.
(2) In the absence of applicable Federal or State law, the livestock shall be disposed of in the following manner:
(i) If the owner is known, prompt written notice of impoundment will be served, and in the event of the owner’s failure to remove the impounded livestock within five (5) days from delivery of such notice, it will be disposed of in accordance with this paragraph.
(ii) If the owner is unknown, disposal of the livestock shall not be made until at least fifteen (15) days have elapsed from the date that a notice of impoundment is originally published in a newspaper of general circulation in the county in which the trespass occurs or, if no such newspaper exists, notification is provided by other appropriate means.
(iii) The owner may redeem the livestock by submitting proof of ownership and paying all expenses of the United States for capturing, advertising, pasturing, feeding, impounding, and the amount of damage to public property injured or destroyed as a result of the trespass.
(iv) In determining the claim of the government in a livestock trespass, the value of forage consumed shall be computed at the commercial rates prevailing in the locality for the class of livestock found in trespass. The claim shall include the pro rata salary of employees for the time spent and the expenses incurred as a result of the investigation, reporting, and settlement or prosecution of the claim.
(v) If livestock impounded under this paragraph is offered at public sale and no bid is received, or if the highest bid received is less than the amount of the claim of the United States or of the officer’s appraised value of the livestock, whichever is the lesser amount, such livestock, may be sold at private sale for the highest amount obtainable, condemned and destroyed, or converted to the use of the United States.
§ 1002.61 Residing on Federal lands.
(a) Residing within the area administered by the Presidio Trust, other than on privately owned lands, except pursuant to the terms and conditions of a permit, lease or contract, is prohibited.
(b) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
§ 1002.62 Memorialization.
(a) The installation of a monument, memorial, tablet, structure, or other commemorative installation within the area administered by the Presidio Trust without the authorization of the Board is prohibited.
(b) The scattering of human ashes from cremation is prohibited, except pursuant to the terms and conditions of a permit, or in designated areas according to conditions which may be established by the Board.
(c) Failure to abide by area designations and established conditions is prohibited.
(d) Violation of the terms and conditions of a permit issued in accordance with this section is prohibited and may result in the suspension or revocation of the permit.
§ 1002.63 Boating and water use activities.
Swimming, boating and the use of any water vessel are prohibited within the area administered by the Presidio Trust.
PART 1004—VEHICLES AND TRAFFIC SAFETY
§ 1004.1 Applicability and scope.
The applicability of the regulations in this part is described in § 1001.2 of this chapter. The regulations in this part also apply, regardless of land ownership, on all roadways and parking areas within the boundaries of the area administered by the Presidio Trust that are open to public traffic and that are under the legislative jurisdiction of the United States.
§ 1004.2 State law applicable.
(a) Unless specifically addressed by regulations in this chapter, traffic and the use of vehicles within the boundaries of the area administered by the Presidio Trust are governed by State law. State law that is now or may later be in effect is adopted and made a part of the regulations in this part.
(b) Violating a provision of State law is prohibited.
§ 1004.3 Authorized emergency vehicles.
(a) The operator of an authorized emergency vehicle, when responding to an emergency or when pursuing or apprehending an actual or suspected violator of the law, may:
(1) Disregard traffic control devices;
(2) Exceed the speed limit; and
(3) Obstruct traffic.
(b) The provisions of paragraph (a) of this section do not relieve the operator from the duty to operate with due regard for the safety of persons and property.
§ 1004.4 Report of motor vehicle accident.
(a) The operator of a motor vehicle involved in an accident resulting in property damage, personal injury or death shall report the accident to the Executive Director as soon as practicable, but within 24 hours of the accident. If the operator is physically incapable of reporting the accident, an occupant of the vehicle shall report the accident to the Executive Director.
(b) A person shall not tow or move a vehicle that has been involved in an accident without first notifying the Executive Director unless the position of the vehicle constitutes a hazard or prior notification is not practicable, in which case notification shall be made before the vehicle is removed from the area administered by the Presidio Trust.
(c) Failure to comply with a reporting requirement specified in paragraph (a) or (b) of this section is prohibited.
(d) The notification requirements imposed by this section do not relieve the operator and occupants of a motor vehicle involved in an accident of the responsibility to satisfy reporting requirements imposed by State law.
§ 1004.10 Travel on Presidio Trust roads and designated routes.
(a) Operating a motor vehicle is prohibited except on Presidio Trust roads and in parking areas.
(b) The following are prohibited:
(1) Operating a motor vehicle not equipped with pneumatic tires, except that a track-laying motor vehicle or a motor vehicle equipped with a similar traction device may be operated on a route designated for these vehicles by the Board.
(2) Operating a motor vehicle in a manner that causes unreasonable damage to the surface of a Presidio Trust road or route.
§ 1004.11 Load, weight and size limits.
(a) Vehicle load, weight and size limits established by State law apply to a vehicle operated on a Presidio Trust road. However, the Board may designate more restrictive limits when appropriate for traffic safety or protection of the road surface. The Board may require a permit and establish conditions for the operation of a vehicle exceeding designated limits.
(b) The following are prohibited:
(1) Operating a vehicle that exceeds a load, weight or size limit designated by the Board.
(2) Failing to obtain a permit when required.
(3) Violating a term or condition of a permit.
(4) Operating a motor vehicle with an auxiliary detachable side mirror that extends more than 10 inches beyond the side fender line except when the motor vehicle is towing a second vehicle.
(c) Violating a term or condition of a permit may also result in the suspension or revocation of the permit by the Executive Director.
§ 1004.12 Traffic control devices.
Failure to comply with the directions of a traffic control device is prohibited unless otherwise directed by the Executive Director.
§ 1004.13 Obstructing traffic.
The following are prohibited:
(a) Stopping or parking a vehicle upon a Presidio Trust road, except as authorized by the Executive Director, or in the event of an accident or other condition beyond the control of the operator.
(b) Operating a vehicle so slowly as to interfere with the normal flow of traffic.
§ 1004.14 Open container of alcoholic beverage.
(a) Each person within a motor vehicle is responsible for complying with the provisions of this section that pertain to carrying an open container. The operator of a motor vehicle is the person responsible for complying with the provisions of this section that pertain to the storage of an open container.
(b) Carrying or storing a bottle, can or other receptacle containing an alcoholic beverage that is open, or has been opened, or whose seal is broken or the contents of which have been partially removed, within a motor vehicle in the area administered by the Presidio Trust is prohibited.
(c) This section does not apply to:
(1) An open container stored in the trunk of a motor vehicle or, if a motor vehicle is not equipped with a trunk, to an open container stored in some other portion of the motor vehicle designed for the storage of luggage and not normally occupied by or readily accessible to the operator or passengers; or
(2) An open container stored in the living quarters of a motor home or camper; or
(3) Unless otherwise prohibited, an open container carried or stored in a motor vehicle parked at an authorized campsite where the motor vehicle’s occupant(s) are camping.
(d) For the purpose of paragraph (c)(1) of this section, a utility compartment or glove compartment is deemed to be readily accessible to the operator and passengers of a motor vehicle.
§ 1004.15 Safety belts.
(a) Each operator and passenger occupying any seating position of a motor vehicle in the area administered by the Presidio Trust will have the safety belt or child restraint system properly fastened at all times when the vehicle is in motion. The safety belt and child restraint system will conform to applicable United States Department of Transportation standards.
(b) This section does not apply to an occupant in a seat that was not originally equipped by the manufacturer with a safety belt nor does it apply to a person who can demonstrate that a medical condition prevents restraint by a safety belt or other occupant restraining device.
§ 1004.20 Right of way.
An operator of a motor vehicle shall yield the right of way to pedestrians, saddle and pack animals and vehicles drawn by animals. Failure to yield the right of way is prohibited.
§ 1004.21 Speed limits.
(a) Speed limits in the area administered by the Presidio Trust are as follows:
(1) 15 miles per hour: within all school zones, campgrounds, picnic areas, parking areas, utility areas, business or residential areas, other places of public assemblage and at emergency scenes.
(2) 25 miles per hour: upon sections of Presidio Trust road under repair or construction.
(3) 45 miles per hour: upon all other Presidio Trust roads.
(b) The Board may designate a different speed limit upon any Presidio Trust road when a speed limit set forth in paragraph (a) of this section is determined to be unreasonable, unsafe or inconsistent with the purposes of the Presidio Trust Act. Speed limits shall be posted by using standard traffic control devices.
(c) Operating a vehicle at a speed in excess of the speed limit is prohibited.
(d) An authorized person may utilize radiomicrowaves or other electrical devices to determine the speed of a vehicle on a Presidio Trust road. Signs indicating that vehicle speed is determined by the use of radiomicrowaves or other electrical devices are not required.
§ 1004.22 Unsafe operation.
(a) The elements of this section constitute offenses that are less serious than reckless driving. The offense of reckless driving is defined by State law and violations are prosecuted pursuant to the provisions of § 1004.2.
(b) The following are prohibited:
(1) Operating a motor vehicle without due care or at a speed greater than that which is reasonable and prudent considering wildlife, traffic, weather, road and light conditions and road character.
(2) Operating a motor vehicle in a manner which unnecessarily causes its tires to squeal, skid or break free of the road surface.
(3) Failing to maintain that degree of control of a motor vehicle necessary to avoid danger to persons, property or wildlife.
(4) Operating a motor vehicle while allowing a person to ride:
(i) On or within any vehicle, trailer or other mode of conveyance towed behind the motor vehicle unless specifically designed for carrying passengers while being towed; or
(ii) On any exterior portion of the motor vehicle not designed or intended for the use of a passenger. This restriction does not apply to a person seated on the floor of a truck bed equipped with sides, unless prohibited by State law.
§ 1004.23 Operating under the influence of alcohol or drugs.
(a) Operating or being in actual physical control of a motor vehicle is prohibited while:
(1) Under the influence of alcohol, or a drug, or drugs, or any combination thereof, to a degree that renders the operator incapable of safe operation; or
(2) The alcohol concentration in the operator’s blood or breath is 0.10 grams or more of alcohol per 100 milliliters of blood or 0.10 grams or more of alcohol per 210 liters of breath. Provided however, that if State law that applies to operating a motor vehicle while under the influence of alcohol establishes more restrictive limits of alcohol concentration in the operator’s blood or breath, those limits supersede the limits specified in this paragraph.
(b) The provisions of paragraph (a) of this section also apply to an operator who is or has been legally entitled to use alcohol or another drug.
(c) Tests. (1) At the request or direction of an authorized person who has probable cause to believe that an operator of a motor vehicle within the area administered by the Presidio Trust has violated a provision of paragraph (a) of this section, the operator shall submit to one or more tests of the blood, breath, saliva or urine for the purpose of determining blood alcohol and drug content.
(2) Refusal by an operator to submit to a test is prohibited and proof of refusal may be admissible in any related judicial proceeding.
(3) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.
(4) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.
(d) Presumptive levels. (1) The results of chemical or other quantitative tests are intended to supplement the elements of probable cause used as the basis for the arrest of an operator charged with a violation of paragraph (a)(1) of this section. If the alcohol concentration in the operator’s blood or breath at the time of testing is less than alcohol concentrations specified in paragraph (a)(2) of this section, this fact does not give rise to any presumption that the operator is or is not under the influence of alcohol.
(2) The provisions of paragraph (d)(1) of this section are not intended to limit the introduction of any other competent evidence bearing upon the question of whether the operator, at the time of the alleged violation, was under the influence of alcohol, or a drug, or drugs, or any combination thereof.
§ 1004.30 Bicycles.
(a) The use of a bicycle is prohibited except on Presidio Trust roads, in parking areas and on routes designated for bicycle use; provided, however, that the Board may close any Presidio Trust road or parking area to bicycle use pursuant to the criteria and procedures of §§ 1001.5 and 1001.7 of this chapter. Routes may only be designated for bicycle use based on a written determination that such use is consistent with the protection of natural, scenic and aesthetic values, safety considerations and management objectives and will not disturb wildlife or the resources of the area administered by the Presidio Trust.
(b) Designated bicycle routes. The use of a bicycle is permitted in non-developed areas, as follows:
(1) Bicycle use is permitted on routes which have been designated by the Board as bicycle routes by the posting of signs, and as designated on maps which are available in the office of the Presidio Trust and other places convenient to the public.
(2) Bicycle speed limits are as follows:
(i) 15 miles per hour: Upon all designated routes within the area administered by the Presidio Trust.
(ii) 5 miles per hour: On blind curves and when passing other trail users.
(3) The following are prohibited:
(i) The possession of a bicycle on routes not designated as open to bicycle use.
(ii) Operating a bicycle on designated bicycle routes between sunset and sunrise without exhibiting on the bicycle or on the operator an activated white light that is visible from a distance of at least 500 feet to the front and with a red light or reflector visible from at least 200 feet to the rear.
(c) A person operating a bicycle is subject to all sections of this part that apply to an operator of a motor vehicle, except §§ 1004.4, 1004.10, 1004.11 and 1004.14.
(d) The following are prohibited:
(1) Possessing a bicycle in a wilderness area established by Federal statute.
(2) Operating a bicycle during periods of low visibility, or while traveling through a tunnel, or between sunset and sunrise, without exhibiting on the operator or bicycle a white light or reflector that is visible from a distance of at least 500 feet to the front and with a red light or reflector visible from at least 200 feet to the rear.
(3) Operating a bicycle abreast of another bicycle except where authorized by the Executive Director.
(4) Operating a bicycle while consuming an alcoholic beverage or carrying in hand an open container of an alcoholic beverage.
§ 1004.31 Hitchhiking.
Hitchhiking or soliciting transportation is prohibited except in designated areas and under conditions established by the Board.
PART 1005—COMMERCIAL AND PRIVATE OPERATIONS
§ 1005.1 Advertisements.
Commercial notices or advertisements shall not be displayed, posted, or distributed within the area administered by the Presidio Trust unless prior written permission has been given by the Executive Director. Such permission may be granted only if the notice or advertisement is of goods, services, or facilities available within the area administered by the Presidio Trust and such notices and advertisements are found by the Executive Director to be desirable and necessary for the convenience and guidance of the public.
§ 1005.2 Alcoholic beverages; sale of intoxicants.
The sale of alcoholic, spirituous, vinous, or fermented liquor, containing more than 1 percent of alcohol by weight, shall conform with all applicable Federal, State, and local laws and regulations. (See also § 1002.35 of this chapter.)
§ 1005.3 Business operations.
Engaging in or soliciting any business in the area administered by the Presidio Trust, except in accordance with the provisions of a permit, contract, or other written agreement with the United States, is prohibited.
§ 1005.4 Commercial passenger-carrying motor vehicles.
Passenger-carrying motor vehicles that are so large as to require special escort in order to proceed safely over Presidio Trust roads, or which in the judgment of the Executive Director are beyond the carrying capacity or safety factor of the roads, will not be permitted in the area administered by the Presidio Trust, except that, where they may satisfactorily enter and travel to the Presidio Trust headquarters they may be parked there during the period of stay.
§ 1005.5 Commercial photography.
(a) Motion pictures, television. Before any motion picture may be filmed or any television production or sound track may be made, which involves the use of professional casts, settings, or crews, by any person other than bona fide newsreel or news television personnel, written permission must first be obtained from the Executive Director, in accordance with the following:
(1) Permit required. No picture may be filmed, and no television production or sound track made on any area administered by the Presidio Trust, by any person other than amateur or bona fide newsreel and news television photographers and soundmen, unless written permission has been obtained from the Presidio Trust. Applications for permission should be submitted to the Executive Director.
(2) Fees; bonds. (i) No fees will be charged for the making of motion pictures, television productions or sound tracks on areas administered by the Presidio Trust. The regular general admission and other fees currently in effect in any area under the jurisdiction of the Presidio Trust are not affected by this paragraph.
(ii) A bond shall be furnished, or deposit made in cash or by certified check, in an amount to be set by the official in charge of the area to insure full compliance with all of the conditions prescribed in paragraph (a)(4) of this section.
(3) Approval of application. Permission to make a motion picture, television production or sound track on areas administered by the Presidio Trust will be granted by the Executive Director in his discretion and on acceptance by the applicant of the conditions set forth in paragraph (a)(4) of this section.
(4) Form of application. The following form is prescribed for an application for permission to make a motion picture, television production, or sound track on areas administered by the Presidio Trust:
To the Executive Director of the Presidio Trust:
Permission is requested to make, in the area administered by the Presidio Trust, a
The scope of the filming (or production or recording) and the manner and extent thereof will be as follows:
Weather conditions permitting, work will commence on approximately ______________ and will be completed on approximately ______________. (An additional sheet should be used if necessary.)
The undersigned accepts and will comply with the following conditions:
Utmost care will be exercised to see that no natural features are injured, and after completion of the work the area will, as required by the official in charge, either be cleaned up and restored to its prior condition or left, after clean-up, in a condition satisfactory to the official in charge.
Credit will be given to the Presidio Trust through the use of an appropriate title or announcement, unless there is issued by the official in charge of the area a written statement that no such courtesy credit is desired.
Pictures will be taken of wildlife only when such wildlife will be shown in its natural state or under approved management conditions if such wildlife is confined.
Any special instructions received from the official in charge of the area will be complied with.
Any additional information relating to the privilege applied for by this application will be furnished upon request of the official in charge.
Approved:
(b) Still photography. The taking of photographs of any vehicle, or other articles of commerce or models for the purpose of commercial advertising without a written permit from the Executive Director is prohibited.
§ 1005.6 Commercial vehicles.
(a) The term “Commercial vehicle” as used in this section shall include, but not be limited to trucks, station wagons, pickups, passenger cars or other vehicles when used in transporting movable property for a fee or profit, either as a direct charge to another person, or otherwise, or used as an incident to providing services to another person, or used in connection with any business.
(b) The use of government roads within the area administered by the Presidio Trust by commercial vehicles, when such use is in no way connected with the operation of the area administered by the Presidio Trust, is prohibited, except that in emergencies the Executive Director may grant permission to use Presidio Trust roads.
(c) The Executive Director shall issue permits for commercial vehicles used on Presidio Trust roads when such use is necessary for access to private lands situated within or adjacent to the area administered by the Presidio Trust, to which access is otherwise not available.
§ 1005.7 Construction of buildings or other facilities.
Constructing or attempting to construct a building, or other structure, boat dock, road, trail, path, or other way, telephone line, telegraph line, power line, or any other private or public utility, upon, across, over, through, or under any area administered by the Presidio Trust, except in accordance with the provisions of a valid permit, contract, or other written agreement with the United States, is prohibited.
§ 1005.8 Discrimination in employment practices.
(a) The proprietor, owner, or operator of any hotel, inn, lodge or other facility or accommodation offered to or enjoyed by the general public within the area administered by the Presidio Trust is prohibited from discriminating against any employee or maintaining any employment practice which discriminates because of race, creed, color, ancestry, sex, age, disabling condition, or national origin in connection with any activity provided for or permitted by contract with or permit from the Government or by derivative subcontract or sublease. As used in this section, the term “employment” includes, but is not limited to, employment, upgrading, demotion, or transfer; recruitment, or recruitment advertising; layoffs or termination; rates of pay or other forms of compensation; and selection for training including apprenticeship.
(b) Each such proprietor, owner or operator shall post either the following notice or notices supplied in accordance with Executive Order 11246 at such locations as will ensure that the notice and its contents will be conspicuous to any person seeking employment:
This is a facility operated in an area under the jurisdiction of the Presidio Trust. No discrimination in employment practices on the basis of race, creed, color, ancestry, sex, age, disabling condition, or national origin is permitted in this facility. Violations of this prohibition are punishable by fine, imprisonment, or both. Complaints or violations of this prohibition should be addressed to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(c) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
§ 1005.9 Discrimination in furnishing public accommodations and transportation services.
(a) The proprietor, owner or operator and the employees of any hotel, inn, lodge, or other facility or accommodation offered to or enjoyed by the general public within the area administered by the Presidio Trust and, while using such area, any commercial passenger-carrying motor vehicle service and its employees, are prohibited from:
(1) Publicizing the facilities, accommodations or any activity conducted therein in any manner that would directly or inferentially reflect upon or question the acceptability of any person or persons because of race, creed, color, ancestry, sex, age, disabling condition, or national origin; or
(2) Discriminating by segregation or otherwise against any person or persons because of race, creed, color, ancestry, sex, age, disabling condition, or national origin in furnishing or refusing to furnish such person or persons any accommodation, facility, service, or privilege offered to or enjoyed by the general public.
(b) Each such proprietor, owner, or operator shall post the following notice at such locations as will insure that the notice and its contents will be conspicuous to any person seeking accommodations, facilities, services, or privileges:
This is a facility operated in an area under the jurisdiction of the Presidio Trust. No discrimination by segregation or other means in the furnishing of accommodations, facilities, services, or privileges on the basis of race, creed, color, ancestry, sex, age, disabling condition or national origin is permitted in the use of this facility. Violations of this prohibition are punishable by fine, imprisonment, or both. Complaints of violations of this prohibition should be addressed to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(c) The regulations contained in this section apply, regardless of land ownership, on all lands and waters within the boundaries of the area administered by the Presidio Trust that are under the legislative jurisdiction of the United States.
§§ 1005.10-1005.12 [Reserved]
§ 1005.13 Nuisances.
The creation or maintenance of a nuisance upon the federally owned lands of the area administered by the Presidio Trust or upon any private lands within the boundaries of the area administered by the Presidio Trust under the exclusive legislative jurisdiction of the United States is prohibited.
§ 1005.14 Prospecting, mining, and mineral leasing.
Prospecting, mining, and the location of mining claims under the general mining laws and leasing under the mineral leasing laws are prohibited in the area administered by the Presidio Trust except as authorized by law.
PART 1007—REQUESTS UNDER THE FREEDOM OF INFORMATION ACT
§ 1007.1 Purpose and scope.
(a) This part contains the procedures for submission to and consideration by the Presidio Trust of requests for records under the FOIA. As used in this part, the term “FOIA” means the Freedom of Information Act, 5 U.S.C. 552. The regulations in this part should be read in conjunction with the text of the FOIA. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with the Presidio Trust’s Privacy Act regulations as well as under this subpart.
(b) Before invoking the formal procedures set out below, persons seeking records from the Presidio Trust may find it useful to consult with the Presidio Trust’s FOIA Officer, who can be reached at The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052, Telephone: (415) 561-5300. As used in this part, the term “FOIA Officer” means the employee designated by the Executive Director to process FOIA requests and otherwise supervise the Presidio Trust’s compliance with the FOIA, or the alternate employee so designated to perform these duties in the absence of the FOIA Officer.
(c) The procedures in this part do not apply to:
(1) Records published in the
(2) Records or information compiled for law enforcement purposes and covered by the disclosure exemption described in § 1007.2(c)(7) if:
(i) The investigation or proceeding involves a possible violation of criminal law; and
(ii) There is reason to believe that:
(A) The subject of the investigation or proceeding is not aware of its pendency; and
(B) Disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings.
(3) Informant records maintained by the United States Park Police under an informant’s name or personal identifier, if requested by a third party according to the informant’s name or personal identifier, unless the informant’s status as an informant has been officially confirmed.
§ 1007.2 Records available.
(a) Policy. It is the policy of the Presidio Trust to make its records available to the public to the greatest extent possible consistent with the purposes of the Presidio Trust Act and the FOIA. The Presidio Trust administers the FOIA with a presumption of openness. As a matter of policy, the Presidio Trust may make discretionary disclosures of records or information exempt from disclosure under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption. This policy does not create any right enforceable in court.
(b) Statutory disclosure requirement. The FOIA requires that the Presidio Trust, on a request from a member of the public submitted in accordance with the procedures in this part, make requested records available for inspection and copying.
(c) Statutory exemptions. Exempted from the FOIA’s statutory disclosure requirement are matters that are:
(1)(i) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy; and
(ii) Are in fact properly classified pursuant to such Executive order.
(2) Related solely to the internal personnel rules and practices of an agency;
(3) Specifically exempted from disclosure by statute (other than the Privacy Act), provided that such statute:
(i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld.
(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:
(i) Could reasonably be expected to interfere with enforcement proceedings;
(ii) Would deprive a person of a right to a fair or an impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical safety of any individual.
(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(9) Geological and geophysical information and data, including maps, concerning wells.
(d) Decisions on requests. It is the policy of the Presidio Trust to withhold information falling within an exemption only if:
(1) Disclosure is prohibited by statute or Executive order; or
(2) Sound grounds exist for invocation of the exemption.
(e) Disclosure of reasonably segregable nonexempt material. If a requested record contains material covered by an exemption and material that is not exempt, and it is determined under the procedures in this part to withhold the exempt material, any reasonably segregable nonexempt material shall be separated from the exempt material and released. In such circumstances, the records disclosed in part shall be marked or annotated to show both the amount and the location of the information deleted wherever practicable.
§ 1007.3 Requests for records.
(a) Submission of requests. A request to inspect or copy records shall be submitted to the Presidio Trust’s FOIA Officer at P.O. Box 29052, San Francisco, CA 94129-0052.
(b) Form of perfected requests. (1) Requests under this part shall be in writing and should specifically invoke the FOIA.
(2) A request must reasonably describe the records requested. A request reasonably describes the records requested if it will enable an employee of the Presidio Trust familiar with the subject area of the request to locate the record with a reasonable amount of effort. If such information is available, the request should identify the subject matter of the record, the date when it was made, the place where it was made, the person or office that made it, the present custodian of the record, and any other information that will assist in locating the requested record. If the request involves a matter known by the requester to be in litigation, the request should also state the case name and court hearing the case. If after receiving a request the FOIA Officer determines that the request does not reasonably describe the records sought, the FOIA Officer will inform the requester what additional information is needed or why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with the FOIA Officer. If a request does not reasonably describe the records sought, the Presidio Trust’s response to the request may be delayed or an adverse determination under § 1007.5(e).
(3)(i) A perfected request shall:
(A) Specify the fee category (commercial use, educational institution, noncommercial scientific institution, news media, or other, as defined in § 1007.9) in which the requester claims the request falls and the basis of this claim;
(B) State the maximum amount of fees that the requester is willing to pay or include a request for a fee waiver; and
(C) Provide contact information for the requester, such as phone number, email address and/or mailing address, to assist the Presidio Trust in communicating with them and providing released records.
(ii) Requesters who make requests for records about themselves must verify their identity.
(iii) Where a request for records pertains to another individual, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (e.g., a copy of a death certificate or an obituary). As an exercise of administrative discretion, the Presidio Trust may require a requester to supply additional information if necessary in order to verify that a particular individual has consented to disclosure.
(iv) Requesters are advised that, under § 1007.9 (f), (g) and (h), the time for responding to requests may be delayed:
(A) If a requester has not sufficiently identified the fee category applicable to the request;
(B) If a requester has not stated a willingness to pay fees as high as anticipated by the Presidio Trust; or
(C) If a fee waiver request is denied and the requester has not included an alternative statement of willingness to pay fees as high as anticipated by the Presidio Trust.
(4) A request seeking a fee waiver shall, to the extent possible, address why the requester believes that the criteria for fee waivers set out in § 1007.10 are met.
(5) To facilitate handling, both the envelope containing a request and the face of the request should bear the legend “FREEDOM OF INFORMATION REQUEST.”
(c) Creation of records. A request may seek only records that are in existence at the time the request is received. A request may not seek records that come into existence after the date on which it is received and may not require that new records be created in response to the request by, for example, combining or compiling selected items from manual files, preparing a new computer program, or calculating proportions, percentages, frequency distributions, trends or comparisons. In those instances where the Presidio Trust determines that creating a new record will be less burdensome than disclosing large volumes of unassembled material, the Presidio Trust may, in its discretion, agree to creation of a new record as an alternative to disclosing existing records.
§ 1007.4 Preliminary processing of requests.
(a) Scope of requests. Unless a request clearly specifies otherwise, requests to the Presidio Trust may be presumed to seek only records of the Presidio Trust in possession of the Presidio Trust at the time the Presidio Trust begins its search. If any other date is used, the Presidio Trust will inform the requester of that date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c) is not considered responsive to a request.
(b) Records of other departments and agencies. (1) When reviewing records in response to a request, the Presidio Trust will determine whether another Federal department or agency is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, the Presidio Trust will proceed in one of the following ways:
(i) Consultation. When records originating with the Presidio Trust, but contain within them information of interest to another Federal department or agency, the Presidio Trust will consult with that other entity prior to making a release determination; or
(ii) Referral. (A) When the Presidio Trust believes that another department or agency is best able to determine whether to disclose the record, the Presidio Trust will refer the responsibility for responding to the request regarding the record to that department or agency. Ordinarily, the department or agency that originated the record is presumed to be the best entity to make the disclosure determination. However, if the Presidio Trust and the originating department or agency jointly agree that the Presidio Trust is in the best position to respond to the request, then the record may be handled as a consultation.
(B) If the Presidio Trust refers any part of the responsibility for responding to a request to another department or agency, the Presidio Trust will document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the department or agency to which the record was referred, including that entity’s FOIA contact information.
(2) Timing of responses to consultations and referrals. All consultations and referrals received by the Presidio Trust will be handled according to the date that the Presidio Trust received the perfected FOIA request.
(3) A request for documents that were classified by another agency shall be referred to that agency.
(c) Consultation with submitters of commercial and financial information. (1) If a request seeks a record containing trade secrets or commercial or financial information submitted by any person or entity, including a corporation, State, Native American tribe or nation, or foreign government, but not including another Federal Government entity, the Presidio Trust shall provide the submitter with notice of the request whenever:
(i) The submitter has made a good faith designation of the information as commercially or financially sensitive; or
(ii) The Presidio Trust has reason to believe that disclosure of the information may result in commercial or financial injury to the submitter.
(2) Where notification of a voluminous number of submitters is required, such notification may be accomplished by posting or publishing the notice in a place reasonably calculated to accomplish notification.
(3) The notice to the submitter shall afford the submitter a reasonable period within which to provide a detailed statement of any objection to disclosure. The submitter’s statement shall explain the basis on which the information is claimed to be exempt under the FOIA, including a specification of any claim of competitive or other business harm that would result from disclosure. The statement shall also include a certification that the information is confidential, has not been disclosed to the public by the submitter, and is not routinely available to the public from other sources.
(4) A submitter who fails to respond within the time period specified in the notice will be deemed to have no objection to disclosure of the information. The Presidio Trust shall not be required to consider any information received from the submitter after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.
(5) The Presidio Trust will notify the requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.
(6) If a submitter’s statement cannot be obtained within the time limit for processing the request under § 1007.6, the requester shall be notified of the delay as provided in § 1007.6(f).
(7) Notification to a submitter is not required if:
(i) The Presidio Trust determines, prior to giving notice, that the request for the record should be denied;
(ii) The information has previously been lawfully published or officially made available to the public;
(iii) Disclosure is required by a statute (other than the FOIA) or regulation (other than this part);
(iv) Disclosure is clearly prohibited by a statute, as described in § 1007.2(c)(3);
(v) The information was not designated by the submitter as confidential when it was submitted, or a reasonable time thereafter, if the submitter was specifically afforded an opportunity to make such a designation; however, a submitter will be notified of a request for information that was not designated as confidential at the time of submission, or a reasonable time thereafter, if there is substantial reason to believe that disclosure of the information would result in competitive harm;
(vi) The designation of confidentiality made by the submitter is obviously frivolous; or
(vii) The information was submitted to the Presidio Trust more than ten years prior to the date of the request, unless the Presidio Trust has reason to believe that it continues to be confidential.
(8) If a requester brings suit to compel disclosure of information, the submitter of the information will be promptly notified.
§ 1007.5 Action on initial requests.
(a) Authority. (1) Requests shall be decided by the FOIA Officer.
(2) A decision to withhold a requested record, to release a record that is exempt from disclosure, or to deny a fee waiver shall be made only after consultation with the General Counsel.
(b) Acknowledgement of requests. (1) The Presidio Trust shall send the requester a written acknowledgement of the receipt of the request, provide the requester with an individualized tracking number, and provide the requester with contact information for the FOIA Officer.
(2) Requesters must include the individualized tracking number in all communications with the Presidio Trust regarding the request.
(c) Estimated dates of completion and interim responses. Upon request, the Presidio Trust will provide an estimated date by which the Presidio Trust expects to provide a response to the requester. If a request involves a voluminous amount of material, or searches in multiple locations, the Presidio Trust may provide interim responses, releasing records on a rolling basis.
(d) Form of grant. (1) When a requested record has been determined to be available, the FOIA Officer shall notify the requester as to when and where the record is available for inspection or, as the case may be, when and how copies will be provided. If fees are due, the FOIA Officer shall state the amount of fees due and the procedures for payment, as described in § 1007.9.
(2) The FOIA Officer shall honor a requester’s specified preference of form or format of disclosure (e.g., paper, microform, audiovisual materials, or electronic records) if the record is readily available to the Presidio Trust in the requested form or format or if the record is reproducible by the Presidio Trust with reasonable efforts in the requested form or format.
(3) If a requested record (or portion thereof) is being made available over the objections of a submitter made in accordance with § 1007.4(c), both the requester and the submitter shall be notified of the decision. The notice to the submitter (a copy of which shall be made available to the requester) shall be forwarded a reasonable number of days prior to the date on which disclosure is to be made and shall include:
(i) A statement of the reasons why the submitter’s objections were not sustained;
(ii) A specification of the portions of the record to be disclosed, if the submitter’s objections were sustained in part; and
(iii) A specified disclosure date.
(4) If a claim of confidentiality has been found frivolous in accordance with § 1007.4(c)(7)(vi) and a determination is made to release the information without consultation with the submitter, the submitter of the information shall be notified of the decision and the reasons therefor a reasonable number of days prior to the date on which disclosure is to be made.
(e) Adverse determinations of requests. Adverse determinations, or denials of requests, include decisions that:
(1) The requester has not submitted a perfected request;
(2) The requested record is exempt, in whole or in part;
(3) The request does not reasonably describe the records sought;
(4) The information is not a record subject to the FOIA;
(5) The requested record does not exist, cannot be located, or has been destroyed; or
(6) The requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waivers or denials of requests for expedited processing.
(f) Form of denial. (1) A decision withholding a requested record shall be in writing and shall include:
(i) A list of the names and titles or positions of each person responsible for the denial;
(ii) A reference to the specific exemption or exemptions authorizing the withholding;
(iii) An estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation. This estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption;
(iv) A statement that the denial may be appealed and a reference to the procedures in § 1007.7 for appeal; and
(v) A statement notifying the requester of the dispute resolution services offered by the Office of Government Information Services.
(2) A decision denying a request for failure to reasonably describe requested records or for other procedural deficiency or because requested records cannot be located shall be in writing and shall include:
(i) A description of the basis of the decision;
(ii) A list of the names and titles or positions of each person responsible;
(iii) A statement that the matter may be appealed and a reference to the procedures in § 1007.7 for appeal; and
(iv) A statement notifying the requester of the dispute resolution services offered by the Office of Government Information Services.
(g) Expedited processing. (1) Requests and appeals will be taken out of order and given expedited treatment whenever it is determined by the FOIA Officer that they involve:
(i) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged Federal government activity, if made by a person primarily engaged in disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity that affect public confidence.
(2) A request for expedited processing may be made at the time of the initial request for records or at any later time.
(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person’s knowledge and belief, explaining in detail the basis for requesting expedited processing.
(4) Within ten calendar days of receiving of a request for expedited processing, the FOIA Officer shall decide whether to grant the request for expedited processing and shall notify the requester of the decision. If a request for expedited processing is granted, the underlying FOIA request shall be given priority and shall be processed as soon as practicable. If a request for expedited processing is denied, any appeal of that decision shall be acted on expeditiously.
§ 1007.6 Time limits for processing initial requests.
(a) Basic limit. Requests for records shall be processed promptly. A determination whether to grant or deny a request shall be made within 20 working days after receipt of a request. This determination shall be communicated immediately to the requester.
(b) Running of basic time limit. (1) The 20 working day time limit begins to run when a perfected request meeting the requirements of § 1007.3(b) is received at the Presidio Trust.
(2) The running of the basic time limit may be delayed or tolled as explained in § 1007.9(f), (g) and (h) if a requester:
(i) Has not stated a willingness to pay fees as high as are anticipated and has not sought and been granted a full fee waiver; or
(ii) Has not made a required advance payment.
(c) Extensions of time. In the following unusual circumstances, the time limit for acting on an initial request may be extended to the extent reasonably necessary to the proper processing of the request, but in no case may the time limit be extended by more than 20 working days:
(1) The need to search for and collect the requested records from facilities or other establishments that are separate from the main office of the Presidio Trust;
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records demanded in a single request; or
(3) The need for consultation, which shall be conducted with all practicable speed, with another department or agency having a substantial interest in the determination of the request.
(d) Notice of extension. A requester shall be notified in writing of an extension under paragraph (c) of this section. The notice shall state the reason for the extension and the date on which a determination on the request is expected to be made. When the extension exceeds ten working days, the requester shall be provided with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request. The requester shall also be notified of the dispute resolution services offered by the Office of Government Information Services.
(e) Treatment of delay as denial. If no determination has been reached at the end of the 20 working day period for deciding an initial request, or an extension thereof under paragraph (c) of this section, the requester may deem the request denied and may exercise a right of appeal in accordance with § 1007.7.
(f) Notice of delay. When a determination cannot be reached within the time limit, or extension thereof, the requester shall be notified of the reason for the delay, of the date on which a determination may be expected, and of the right to treat the delay as a denial for purposes of appeal, including a reference to the procedures for filing an appeal in § 1007.7.
§ 1007.7 Appeals.
(a) Right of appeal. A requester may appeal to the Executive Director when:
(1) Records have been withheld;
(2) A request has been denied for failure to describe requested records or for other procedural deficiency or because requested records cannot be located;
(3) A fee waiver has been denied;
(4) A request has not been decided within the time limits provided in § 1007.6; or
(5) A request for expedited processing under § 1007.5(g) has been denied.
(b) Time for appeal. An appeal must be received at the office of the Presidio Trust no later than 90 calendar days after the date of the initial denial, in the case of a denial of an entire request, or 90 calendar days after records have been made available, in the case of a partial denial.
(c) Form of appeal. (1) An appeal shall be initiated by filing a written notice of appeal. The notice shall be accompanied by copies of the original request and the initial denial and should, in order to expedite the appellate process and give the requester an opportunity to present his or her arguments, contain a brief statement of the reasons why the requester believes the initial denial to have been in error.
(2) The appeal shall be addressed to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(3) To facilitate handling, both the envelope containing a notice of appeal and the face of the notice should bear the legend “FREEDOM OF INFORMATION APPEAL.”
(d) Appeal required. Before seeking review by a court of an adverse determination by the Presidio Trust, a requester must first submit a timely administrative appeal.
§ 1007.8 Action on appeals.
(a) Authority. Appeals shall be decided by the Executive Director after consultation with the FOIA Officer and the General Counsel.
(b) Time limit. A final determination shall be made within 20 working days after receipt of an appeal meeting the requirements of § 1007.7(c).
(c) Extensions of time. (1) If the time limit for responding to the initial request for a record was not extended under the provisions of § 1007.6(c) or was extended for fewer than ten working days, the time for processing of the appeal may be extended to the extent reasonably necessary to the proper processing of the appeal, but in no event may the extension, when taken together with any extension made during processing of the initial request, result in an aggregate extension with respect to any one request of more than ten working days. The time for processing of an appeal may be extended only if one or more of the unusual circumstances listed in § 1007.6(c) requires an extension.
(2) The appellant shall be advised in writing of the reasons for the extension and the date on which a final determination on the appeal is expected to be dispatched.
(3) If no determination on the appeal has been reached at the end of the 20 working day period, or the extension thereof, the requester is deemed to have exhausted administrative remedies, giving rise to a right of review in the United States District Court for the Northern District of California, as specified in 5 U.S.C. 552(a)(4).
(4) When no determination can be reached within the applicable time limit, the appeal will nevertheless continue to be processed. On expiration of the time limit, the requester shall be informed of the reason for the delay, of the date on which a determination may be reached to be dispatched, of the dispute resolution services offered by the Office of Government Information Services, and of the right to seek judicial review.
(5) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.
(d) Form of decision. (1) The final determination on an appeal shall be in writing and shall state the basis for the determination. If the determination is to release the requested records or portions thereof, the FOIA Officer shall immediately make the records available. If the determination upholds in whole or part the initial denial of a request for records, the determination shall advise the requester of the right to obtain judicial review in the U.S. District Court for the Northern District of California and shall set forth the names and titles or positions of each person responsible for the denial. The determination shall also inform the requester of the dispute resolution services offered by the Office of Government Information Services. Dispute resolution is a voluntary process. If the Presidio Trust agrees to participate in the dispute resolution services offered by the Office of Government Information Services, it will actively engage as a partner to the process in an attempt to resolve the dispute.
(2) If a requested record (or portion thereof) is being made available over the objections of a submitter made in accordance with § 1007.4(c), the submitter shall be provided notice as described in § 1007.5(b)(3).
§ 1007.9 Fees.
(a) Policy. (1) Unless waived pursuant to the provisions of § 1007.10, fees for responding to FOIA requests shall be charged in accordance with the provisions of this section and the current schedule of charges determined by the Executive Director and published on the Presidio Trust’s website. Such charges shall be set at the level necessary to recoup the full allowable direct costs to the Presidio Trust.
(2) Fees shall not be charged if the total amount chargeable does not exceed the costs of routine collection and processing of the fee. The Presidio Trust shall periodically determine the cost of routine collection and processing of a fee and publish such amount on its website.
(3) Where there is a reasonable basis to conclude that a requester or group of requesters acting in concert has divided a request into a series of requests on a single subject or related subjects to avoid assessment of fees, the requests may be aggregated and fees charged accordingly.
(4) Fees shall be charged to recover the full costs of providing such services as certifying that records are true copies or sending records by a method other than regular mail, when the Presidio Trust elects to provide such services.
(5) The following definitions shall apply to this part:
(i) A commercial use request is a request from or on behalf of a person who seeks information for a use or purpose that furthers the commercial, trade or profit interests of the requester or the person on whose behalf the request is made, which can include furthering those interest through litigation. The intended use of records may be determined on the basis of information submitted by a requester and from reasonable inferences based on the identity of the requester and any other available information.
(ii) The term direct costs refers to those expenses the Presidio Trust incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (i.e., the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space, and of heating or lighting a facility.
(iii) The term duplication refers to the process of making a copy of a record necessary to respond to a FOIA request. Such copies can take the form of paper copy, microform, audio-visual materials, or machine-readable documentation (e.g., magnetic tape or disk), among others. The copy provided shall be in a form that is reasonably usable by requesters.
(iv) An educational institution is a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education, which operates a program or programs of scholarly research.
(v) A noncommercial scientific institution is an institution that is not operated for commerce, trade or profit and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry.
(vi) A representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Non-exhaustive examples of news media entities include television or radio stations that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the internet. A request for records supporting the news-dissemination function of the requester will not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity will be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, the Presidio Trust can also consider a requester’s past publication record in making this determination. The Presidio Trust will advise requesters of their placement in this category.
(vii) The term review refers to the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure under § 1007.4(c) made by a submitter of confidential commercial information, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(viii) The term search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents, databases and information in other electronic records. Searches shall be undertaken in the most efficient and least expensive manner possible, consistent with the Presidio Trust’s obligations under the FOIA and other applicable laws.
(b) Commercial use requests. (1) A requester seeking records for commercial use shall be charged fees for direct costs incurred in document search and review (even if the search and review fails to locate records that are not exempt from disclosure) and duplication.
(2) A commercial use requester may not be charged fees for time spent resolving legal and policy issues affecting access to requested records.
(c) Educational and noncommercial scientific institution requests. (1) A requester seeking records under the auspices of an educational institution in furtherance of scholarly research or a noncommercial scientific institution in furtherance of scientific research shall be charged for document duplication, except that the first 100 pages of paper copies (or the equivalent cost thereof if the records are in some other form) shall be provided without charge.
(2) Such requesters may not be charged fees for costs incurred in:
(i) Searching for requested records;
(ii) Examining requested records to determine whether they are exempt from mandatory disclosure;
(iii) Deleting reasonably segregable exempt matter;
(iv) Monitoring the requester’s inspection of agency records; or
(v) Resolving legal and policy issues affecting access to requested records.
(d) News media requests. (1) A representative of the news media shall be charged for document duplication, except that the first 100 pages of paper copies (or the equivalent cost thereof if the records are in some other form) shall be provided without charge.
(2) Representatives of the news media may not be charged fees for costs incurred in:
(i) Searching for requested records;
(ii) Examining requested records to determine whether they are exempt from mandatory disclosure;
(iii) Deleting reasonably segregable exempt matter;
(iv) Monitoring the requester’s inspection of agency records; or
(v) Resolving legal and policy issues affecting access to requested records.
(e) Other requests. (1) A requester not covered by paragraphs (b), (c), or (d) of this section shall be charged fees for the direct costs for document search (even if the search fails to locate records that are not exempt from disclosure) and duplication, except that the first two hours of search time and the first 100 pages of paper copies (or the equivalent cost thereof if the records are in some other form) shall be provided without charge.
(2) Such requesters may not be charged for costs incurred in:
(i) Examining requested records to determine whether they are exempt from disclosure;
(ii) Deleting reasonably segregable exempt matter;
(iii) Monitoring the requester’s inspection of agency records; or
(iv) Resolving legal and policy issues affecting access to requested records.
(f) Requests for clarification. Where a request does not provide sufficient information to determine whether it is covered by paragraph (b), (c), (d), or (e) of this section, the requester should be asked to provide additional clarification. If it is necessary to seek such clarification, the request may be deemed to have not been received for purposes of the time limits established in § 1007.6 until the clarification is received. Requests to requesters for clarification shall be made promptly.
(g) Notice of anticipated fees. Where a request does not state a willingness to pay fees as high as anticipated by the Presidio Trust, and the requester has not sought and been granted a full waiver of fees under § 1007.10, the request may be deemed to have not been received for purposes of the time limits established in § 1007.6 until the requester has been notified of and agrees to pay the anticipated fee. Advice to requesters with respect to anticipated fees shall be provided promptly.
(h) Advance payment. (1) Where it is anticipated that allowable fees are likely to exceed $250.00, the requester may be required to make an advance payment of the entire fee before processing of his or her request.
(2) Where a requester has previously failed to pay a fee within 30 days of the date of billing, processing of any request from that requester shall ordinarily be suspended until the requester pays any amount still owed, including applicable interest, and makes advance payment of allowable fees anticipated in connection with the request.
(3) Advance payment of fees may not be required except as described in paragraphs (h) (1) and (2) of this section.
(4) Issuance of a notice requiring payment of overdue fees or advance payment shall toll the time limit in § 1007.6 until receipt of payment.
(i) Form of payment. Payment of fees should be made by check or money order payable to the Presidio Trust. Where appropriate, the official responsible for handling a request may require that payment by check be made in the form of a certified check.
(j) Billing procedures. A bill for collection shall be prepared for each request that requires collection of fees.
(k) Collection of fees. The bill for collection or an accompanying letter to the requester shall include a statement that interest will be charged in accordance with the Debt Collection Act of 1982, 31 U.S.C. 3717, and implementing regulations, 4 CFR 102.13, if the fees are not paid within 30 days of the date of the bill for collection is mailed or hand-delivered to the requester. This requirement does not apply if the requester is a unit of State or local government. Other authorities of the Debt Collection Act of 1982 shall be used, as appropriate, to collect the fees.
§ 1007.10 Waiver of fees.
(a) Statutory fee waiver. Documents shall be furnished without charge or at a charge reduced below the fees chargeable under § 1007.9 if disclosure of the information is in the public interest because it:
(1) Is likely to contribute significantly to public understanding of the operations or activities of the government and
(2) Is not primarily in the commercial interest of the requester.
(b) Elimination or reduction of fees. Ordinarily, in the circumstances where the criteria of paragraph (a) of this section are met, fees will be reduced by twenty-five percent from the fees otherwise chargeable to the requester. In exceptional circumstances, and with the approval of the Executive Director, fees may be reduced below this level or waived entirely.
(c) Notice of denial. If a requested statutory fee waiver or reduction is denied, the requester shall be notified in writing. The notice shall include:
(1) A statement of the basis on which the waiver or reduction has been denied;
(2) A listing of the names and titles or positions of each person responsible for the denial; and
(3) A statement that the denial may be appealed to the Executive Director and a description of the procedures in § 1007.7 for appeal.
PART 1008—REQUESTS UNDER THE PRIVACY ACT
§ 1008.1 Purpose and scope.
This part contains the regulations of the Presidio Trust implementing section 3 of the Privacy Act. Sections 1008.3 through 1008.10 describe the procedures and policies of the Presidio Trust concerning maintenance of records which are subject to the Privacy Act. Sections 1008.11 through 1008.17 describe the procedure under which individuals may determine whether systems of records subject to the Privacy Act contain records relating to them and the procedure under which they may seek access to existing records. Sections 1008.18 through 1008.24 describe the procedure under which individuals may petition for amendment of records subject to the Privacy Act relating to them.
§ 1008.2 Definitions.
The following terms have the following meanings as used in this part:
Individual means a citizen of the United States or an alien who is currently lawfully admitted for permanent residence.
Maintain means maintain, collect, use or disseminate.
Privacy Act means 5 U.S.C. 552a.
Privacy Act Officer means the Presidio Trust official charged with responsibility for carrying out the functions assigned in this part.
Record means any item, collection, or grouping of information about an individual that is maintained by the Presidio Trust, including, but not limited to, education, financial transactions, medical history, and criminal or employment history and that contains the individual’s name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print, or a photograph. Related definitions include:
(1) System of records means a group of any records under the control of the Presidio Trust from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.
(2) Medical records means records which relate to the identification, prevention, cure or alleviation of any disease, illness or injury including psychological disorders, alcoholism and drug addiction.
(3) Personnel records means records used for personnel management programs or processes such as staffing, employee development, retirement, and grievances and appeals.
(4) Statistical records means records in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual.
Routine use means a use of a record for a purpose which is compatible with the purpose for which it was collected.
System manager means the official designated in a system notice as having administrative responsibility for a system of records.
System notice means the notice describing a system of records required by 5 U.S.C. 552a(e)(4) to be published in the
§ 1008.3 Records subject to the Privacy Act.
The Privacy Act applies to all records which the Presidio Trust maintains in a system of records.
§ 1008.4 Standards for maintenance of records subject to the Privacy Act.
(a) Content of records. Records subject to the Privacy Act shall contain only such information about an individual as is relevant and necessary to accomplish a purpose of the Presidio Trust required to be accomplished by statute or Executive Order of the President.
(b) Standards of accuracy. Records subject to the Privacy Act which are used in making any determination about any individual shall be maintained with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in making the determination.
(c) Collection of information. (1) Information which may be used in making determinations about an individual’s rights, benefits, and privileges under Federal programs shall, to the greatest extent practicable, be collected directly from that individual.
(2) In deciding whether collection of information from an individual, as opposed to a third party source, is practicable, the following factors, among others, may be considered:
(i) Whether the nature of the information sought is such that it can only be obtained from a third party;
(ii) Whether the cost of collecting the information from the individual is unreasonable when compared with the cost of collecting it from a third party;
(iii) Whether there is a risk that information collected from third parties, if inaccurate, could result in an adverse determination to the individual concerned;
(iv) Whether the information, if supplied by the individual, would have to be verified by a third party; or (v) Whether provisions can be made for verification, by the individual, of information collected from third parties.
(d) Advice to individuals concerning uses of information. (1) Each individual who is asked to supply information about him or herself which will be added to a system of records shall be informed of the basis for requesting the information, how it may be used, and what the consequences, if any, are of not supplying the information.
(2) At a minimum, the notice to the individual must state:
(i) The authority (whether granted by statute or Executive Order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary;
(ii) The principal purpose or purposes for which the information is intended to be used;
(iii) The routine uses which may be made of the information; and
(iv) The effects on the individual, if any, of not providing all or any part of the requested information.
(3)(i) When information is collected on a standard form, the notice to the individual shall be provided on the form, on a tear-off sheet attached to the form, or on a separate sheet, whichever is most practical.
(ii) When information is collected by an interviewer, the interviewer shall provide the individual with a written notice which the individual may retain. If the interview is conducted by telephone, however, the interviewer may summarize the notice for the individual and need not provide a copy to the individual unless the individual requests a copy.
(iii) An individual may be asked to acknowledge, in writing, that the notice required by this section has been provided.
(e) Records concerning activity protected by the First Amendment. No record may be maintained describing how any individual exercises rights guaranteed by the First Amendment to the Constitution unless the maintenance of the record is:
(1) Expressly authorized by statute or by the individual about whom the record is maintained; or
(2) Pertinent to and within the scope of an authorized law enforcement activity.
§ 1008.5 Federal Register notices describing systems of records.
The Privacy Act requires publication of a notice in the
§ 1008.6 Assuring integrity of records.
(a) Statutory requirement. The Privacy Act requires that records subject to the Privacy Act be maintained with appropriate administrative, technical and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained, 5 U.S.C. 552a(e)(10).
(b) Records security. Whether maintained in physical or electronic form, records subject to the Privacy Act shall be maintained in a secure manner commensurate with the sensitivity of the information contained in the system of records. The Privacy Act Officer will periodically review these security measures to ensure their adequacy.
§ 1008.7 Conduct of employees.
(a) Handling of records subject to the Privacy Act. Employees whose duties require handling of records subject to the Privacy Act shall, at all times, take care to protect the integrity, security and confidentiality of these records.
(b) Disclosure of records. No employee of the Presidio Trust may disclose records subject to the Privacy Act unless disclosure is permitted under § 1008.9 or is to the individual to whom the record pertains.
(c) Alteration of records. No employee of the Presidio Trust may alter or destroy a record subject to the Privacy Act unless such alteration or destruction is:
(1) Properly undertaken in the course of the employee’s regular duties; or
(2) Required by a decision under §§ 1008.18 through 1008.23 or the decision of a court of competent jurisdiction.
§ 1008.8 Government contracts.
(a) Required contract provisions. When a contract provides for the operation by or on behalf of the Presidio Trust of a system of records to accomplish a Presidio Trust function, the contract shall, consistent with the Presidio Trust’s authority, cause the requirements of 5 U.S.C. 552a and the regulations contained in this part to be applied to such system.
(b) System manager. A regular employee of the Presidio Trust will be the manager for a system of records operated by a contractor.
§ 1008.9 Disclosure of records.
(a) Prohibition of disclosure. No record contained in a system of records may be disclosed by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains.
(b) General exceptions. The prohibition contained in paragraph (a) of this section does not apply where disclosure of the record would be:
(1) To those officers or employees of the Presidio Trust who have a need for the record in the performance of their duties; or
(2) Required by the Freedom of Information Act, 5 U.S.C. 552.
(c) Specific exceptions. The prohibition contained in paragraph (a) of this section does not apply where disclosure of the record would be:
(1) For a routine use which has been described in a system notice published in the
(2) To the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of Title 13, U.S. Code;
(3) To a recipient who has provided the system manager responsible for the system in which the record is maintained with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
(4) To the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the U.S. Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;
(5) To another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the Presidio Trust specifying the particular portion desired and the law enforcement activity for which the record is sought;
(6) To a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;
(7) To either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;
(8) To the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the General Accounting Office;
(9) Pursuant to the order of a court of competent jurisdiction; or
(10) To a consumer reporting agency in accordance with section 3(d) of the Federal Claims Collection Act of 1966, as amended (31 U.S.C. 3711(e)).
(d) Reviewing records prior to disclosure. (1) Prior to any disclosure of a record about an individual, unless disclosure is required by the Freedom of Information Act, reasonable efforts shall be made to ensure that the records are accurate, complete, timely and relevant for agency purposes.
(2) When a record is disclosed in connection with a Freedom of Information Act request made under this part and it is appropriate and administratively feasible to do so, the requester shall be informed of any information known to the Presidio Trust indicating that the record may not be fully accurate, complete, or timely.
(e) Notice of court-ordered and emergency disclosures. (1) Court-ordered disclosures. When a record pertaining to an individual is required to be disclosed by a court order, the Presidio Trust will make reasonable efforts to provide notice of this to the individual. Notice will be given within a reasonable time after the Presidio Trust’s receipt of the order—except that in a case in which the order is not a matter of public record, the notice will be given only after the order becomes public. This notice will be mailed to the individual’s last known address and will contain a copy of the order and a description of the information disclosed. Notice will not be given if disclosure is made from a criminal law enforcement system of records that has been exempted from the notice requirement.
(2) Emergency disclosures. Upon disclosing a record pertaining to an individual made under compelling circumstances affecting health or safety, the Presidio Trust will notify that individual of the disclosure. This notice will be mailed to the individual’s last known address and will state the nature of the information disclosed, the person, organization or agency to which it was disclosed, the date of the disclosure, and the compelling circumstances justifying the disclosure.
§ 1008.10 Accounting for disclosures.
(a) Maintenance of an accounting. (1) Where a record is disclosed to any person, or to another agency, under any of the specific exceptions provided by § 1008.9(c), an accounting shall be made.
(2) The accounting shall record:
(i) The date, nature, and purpose of each disclosure of a record to any person or to another agency; and
(ii) The name and address of the person or agency to whom the disclosure was made.
(3) Accountings prepared under this section shall be maintained for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made.
(b) Access to accountings. (1) Except for accountings of disclosures made under § 1008.9(b) or 1008.9(c)(5), accountings of all disclosures of a record shall be made available to the individual to whom the record relates at the individual’s request.
(2) An individual desiring access to an accounting of disclosures of a record pertaining to the individual shall submit a request by following the procedures of § 1008.13.
(c) Notification of disclosure. When a record is disclosed pursuant to § 1008.9(c)(9) as the result of the order of a court of competent jurisdiction, reasonable efforts shall be made to notify the individual to whom the record pertains as soon as the order becomes a matter of public record.
§ 1008.11 Request for notification of existence of records: Submission.
(a) Submission of requests. (1) Individuals desiring to determine under the Privacy Act whether a system of records contains records pertaining to them shall address inquiries to the Privacy Act Officer, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052, unless the system notice describing the system prescribes or permits submission to some other official or officials.
(2) Individuals desiring to determine whether records pertaining to them are maintained in two or more systems shall make a separate inquiry concerning each system.
(b) Form of request. (1) An inquiry to determine whether a system of records contains records pertaining to an individual shall be in writing.
(2) To expedite processing, both the envelope containing a request and the face of the request should bear the legend “PRIVACY ACT INQUIRY.”
(3) The request shall state that the individual is seeking information concerning records pertaining to him or herself and shall supply such additional identifying information, if any, as is called for in the system notice describing the system.
(4) The request must include verification of the requester’s identity, including the requester’s full name, current address, and date and place of birth. The request must be signed by the requester, and the signature must be notarized or submitted under 28 U.S.C. 1746, which permits statements to be made under penalty of perjury as a substitute for notarization.
(5) If the request is made on behalf of a minor or someone determined by a court to be incompetent, for access to records about that individual, the requester must establish:
(i) The identity of the individual who is the subject of the record, by stating the name, current address, date and place of birth, and, at the requester’s option, the Social Security number of the individual;
(ii) The requester’s identity, as required in paragraph 4 above of this section;
(iii) That the requester is the parent or guardian of that individual, which the requester may prove by providing a copy of the individual’s birth certificate showing the requester’s parentage or by providing a court order establishing the requester’s guardianship; and
(iv) That the requester is acting on behalf of that individual in making the request.
(6) Individuals who have reason to believe that information pertaining to them may be filed under a name other than the name they are currently using (e.g., maiden name), shall include such information in the request.
§ 1008.12 Requests for notification of existence of records: Action on.
(a) Decisions on request. (1) Individuals inquiring to determine whether a system of records contains records pertaining to them shall be promptly advised whether the system contains records pertaining to them unless:
(i) The records were compiled in reasonable anticipation of a civil action or proceeding; or
(ii) The system of records is one which has been excepted from the notification provisions of the Privacy Act by rulemaking.
(2) If the records were compiled in reasonable anticipation of a civil action or proceeding or the system of records is one which has been excepted from the notification provisions of the Privacy Act by rulemaking, the individuals will be promptly notified that they are not entitled to notification of whether the system contains records pertaining to them.
(b) Authority to deny requests. A decision to deny a request for notification of the existence of records shall be made by the Privacy Act officer in consultation with the General Counsel.
(c) Form of decision. (1) No particular form is required for a decision informing individuals whether a system of records contains records pertaining to them.
(2) A decision declining to inform an individual whether or not a system of records contains records pertaining to him or her shall be in writing and shall:
(i) State the basis for denial of the request;
(ii) Advise the individual that an appeal of the declination may be made to the Executive Director pursuant to § 1008.16 by writing to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052; and
(iii) State that the appeal must be received by the foregoing official within 20 working days of the date of the decision.
(3) If the decision declining a request for notification of the existence of records involves records which fall under the jurisdiction of another agency, the individual shall be informed in a written response which shall:
(i) State the reasons for the denial;
(ii) Include the name, position title, and address of the official responsible for the denial; and (iii) Advise the individual that an appeal of the declination may be made only to the appropriate official of the relevant agency, and include that official’s name, position title, and address.
(4) Copies of decisions declining a request for notification of the existence of records made pursuant to paragraphs (c)(2) and (c)(3) of this section shall be provided to the Privacy Act Officer.
§ 1008.13 Requests for access to records.
The Privacy Act permits individuals, upon request, to gain access to their records or to any information pertaining to them which is contained in a system and to review the records and have a copy made of all or any portion thereof in a form comprehensive to them. 5 U.S.C. 552a(d)(1). A request for access shall be submitted in accordance with the procedures in this part.
§ 1008.14 Requests for access to records: Submission.
(a) Submission of requests. (1) Requests for access to records shall be submitted to the Privacy Act Officer unless the system notice describing the system prescribes or permits submission to some other official or officials.
(2) Individuals desiring access to records maintained in two or more separate systems shall submit a separate request for access to the records in each system.
(b) Form of request. (1) A request for access to records subject to the Privacy Act shall be in writing and addressed to Privacy Act Officer, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(2) To expedite processing, both the envelope containing a request and the face of the request should bear the legend “PRIVACY ACT REQUEST FOR ACCESS.”
(3) Requesters shall specify whether they seek all of the records contained in the system which relate to them or only some portion thereof. If only a portion of the records which relate to the individual are sought, the request shall reasonably describe the specific record or records sought.
(4) If the requester seeks to have copies of the requested records made, the request shall state the maximum amount of copying fees which the requester is willing to pay. A request which does not state the amount of fees the requester is willing to pay will be treated as a request to inspect the requested records. Requesters are further notified that under § 1008.15(d) the failure to state willingness to pay fees as high as are anticipated by the Presidio Trust will delay processing of a request.
(5) The request shall supply such identifying information, if any, as is called for in the system notice describing the system.
(6) The request must include verification of the requester’s identity, including the requester’s full name, current address, and date and place of birth. The request must be signed by the requester, and the signature must be notarized or submitted under 28 U.S.C. 1746, which permits statements to be made under penalty of perjury as a substitute for notarization.
(7) If the request is made on behalf of a minor or someone determined by a court to be incompetent, for access to records about that individual, the requester must establish:
(i) The identity of the individual who is the subject of the record, by stating the name, current address, date and place of birth, and, at the requester’s option, the Social Security number of the individual;
(ii) The requester’s identity, as required in paragraph 6 above of this section;
(iii) That the requester is the parent or guardian of that individual, which the requester may prove by providing a copy of the individual’s birth certificate showing the requester’s parentage or by providing a court order establishing the requester’s guardianship; and
(iv) That the requester is acting on behalf of that individual in making the request.
(8) Requests failing to meet the requirements of this paragraph shall be returned to the requester with a written notice advising the requester of the deficiency in the request.
§ 1008.15 Requests for access to records: Initial decision.
(a) Acknowledgements of requests. Upon receipt of a request, the Presidio Trust ordinarily will send an acknowledgement letter to the requester which will confirm the requester’s agreement to pay fees and will provide an assigned request number for further reference.
(b) Decisions on requests. A request made under this part for access to a record shall be granted promptly unless the record:
(1) Was compiled in reasonable anticipation of a civil action or proceeding; or
(2) Is contained in a system of records which has been excepted from the access provisions of the Privacy Act by rulemaking.
(c) Authority to deny requests. A decision to deny a request for access under this part shall be made by the Privacy Act Officer in consultation with the General Counsel.
(d) Form of decision. (1) No particular form is required for a decision granting access to a record. The decision shall, however, advise the individual requesting the record as to where and when the record is available for inspection or, as the case may be, where and when copies will be available. If fees are due under § 1008.15(e), the individual requesting the record shall also be notified of the amount of fees due or, if the exact amount has not been determined, the approximate amount of fees due.
(2) A decision denying a request for access, in whole or part, shall be in writing and shall:
(i) State the basis for denial of the request;
(ii) Contain a statement that the denial may be appealed to the Executive Director pursuant to § 1008.16 by writing to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052; and
(iii) State that the appeal must be received by the foregoing official within 20 working days of the date of the decision.
(3) If the decision denying a request for access involves records which fall under the jurisdiction of another agency, the individual shall be informed in a written response which shall:
(i) State the reasons for the denial;
(ii) Include the name, position title, and address of the official responsible for the denial; and
(iii) Advise the individual that an appeal of the declination may be made only to the appropriate official of the relevant agency, and include that official’s name, position title, and address.
(4) Copies of decisions denying requests for access made pursuant to paragraphs (d)(2) and (d)(3) of this section will be provided to the Privacy Act Officer.
(e) Fees. (1) No fees may be charged for the cost of searching for or reviewing a record in response to a request made under § 1008.14.
(2) Unless the Privacy Act Officer determines that reduction or waiver of fees is appropriate, fees for copying a record in response to a request made under § 1008.14 shall be charged in accordance with the provisions of this section and the current schedule of charges determined by the Executive Director and published on the Trust’s website. Such charges shall be set at the level necessary to recoup the full allowable direct costs to the Trust.
(3) Where it is anticipated that fees chargeable in connection with a request will exceed the amount the person submitting the request has indicated a willingness to pay, the Privacy Act Officer shall notify the requester and shall not complete processing of the request until the requester has agreed, in writing, to pay fees as high as are anticipated.
§ 1008.16 Requests for notification of existence of records and for access to records: Appeals.
(a) Right of appeal. Except for appeals pertaining to records under the jurisdiction of another agency, individuals who have been notified that they are not entitled to notification of whether a system of records contains records pertaining to them or have been denied access, in whole or part, to a requested record may appeal to the Executive Director.
(b) Time for appeal. (1) An appeal must be received by the Executive Director no later than 20 working days after the date of the initial decision on a request.
(2) The Executive Director may, for good cause shown, extend the time for submission of an appeal if a written request for additional time is received within 20 working days of the date of the initial decision on the request.
(c) Form of appeal. (1) An appeal shall be in writing and shall attach copies of the initial request and the decision on the request.
(2) The appeal shall contain a brief statement of the reasons why the appellant believes the decision on the initial request to have been in error.
(3) The appeal shall be addressed to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(d) Action on appeals. (1) Appeals from decisions on initial requests made pursuant to §§ 1008.11 and 1008.14 shall be decided for the Presidio Trust by the Executive Director after consultation with the General Counsel.
(2) The decision on an appeal shall be in writing and shall state the basis for the decision.
§ 1008.17 Requests for access to records: Special situations.
(a) Medical records. (1) Medical records shall be disclosed to the individual to whom they pertain unless it is determined, in consultation with a medical doctor, that disclosure should be made to a medical doctor of the individual’s choosing.
(2) If it is determined that disclosure of medical records directly to the individual to whom they pertain could have an adverse effect on that individual, the individual may designate a medical doctor to receive the records and the records will be disclosed to that doctor.
(b) Inspection in presence of third party. (1) Individuals wishing to inspect records pertaining to them which have been opened for their inspection may, during the inspection, be accompanied by a person of their own choosing.
(2) When such a procedure is deemed appropriate, individuals to whom the records pertain may be required to furnish a written statement authorizing discussion of their records in the accompanying person’s presence.
§ 1008.18 Amendment of records.
The Privacy Act permits individuals to request amendment of records pertaining to them contained in a system of records if they believe the records are not accurate, relevant, timely or complete. 5 U.S.C. 552a(d)(2). A request for amendment of a record shall be submitted in accordance with the procedures in this part.
§ 1008.19 Petitions for amendment: Submission and form.
(a) Submission of petitions for amendment. (1) A request for amendment of a record shall be submitted to the Privacy Act Officer unless the system notice describing the system prescribes or permits submission to a different official or officials. If an individual wishes to request amendment of records located in more than one system, a separate petition must be submitted with respect to each system.
(2) A petition for amendment of a record may be submitted only if the individual submitting the petition has previously requested and been granted access to the record and has inspected or been given a copy of the record.
(b) Form of petition. (1) A petition for amendment shall be in writing, shall specifically identify the record for which amendment is sought, and shall be addressed to the Privacy Act Officer, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
(2) To expedite processing, both the envelope containing a petition and the face of the petition should bear the legend “PRIVACY ACT PETITION FOR AMENDMENT.”
(3) The petition shall state, in detail, the reasons why the petitioner believes the record, or the objectionable portion thereof, is not accurate, relevant, timely or complete. Copies of documents or evidence relied upon in support of these reasons shall be submitted with the petition.
(4) The petition shall state, specifically and in detail, the changes sought in the record. If the changes involve rewriting the record or portions thereof or involve adding new language to the record, the petition shall propose specific language to implement the changes.
(5) The petition must include verification of the petitioner’s identity, including the petitioner’s full name, current address, and date and place of birth. The petition must be signed by the petitioner, and the signature must be notarized or submitted under 28 U.S.C. 1746, which permits statements to be made under penalty of perjury as a substitute for notarization.
(6) If the petition is made on behalf of a minor or someone determined by a court to be incompetent, for access to records about that individual, the petitioner must establish:
(i) The identity of the individual who is the subject of the record, by stating the name, current address, date and place of birth, and, at the petitioner’s option, the Social Security number of the individual;
(ii) The petitioner’s identity, as required in paragraph 5 above of this section;
(iii) That the petitioner is the parent or guardian of that individual, which the petitioner may prove by providing a copy of the individual’s birth certificate showing the petitioner’s parentage or by providing a court order establishing the petitioner’s guardianship; and
(iv) That the petitioner is acting on behalf of that individual in making the request.
(7) Petitions failing to meet the requirements of this paragraph shall be returned to the petitioner with a written notice advising the petitioner of the deficiency in the petition.
§ 1008.20 Petitions for amendment: Processing and initial decision.
(a) Decisions on petitions. In reviewing a record in response to a petition for amendment, the accuracy, relevance, timeliness and completeness of the record shall be assessed against the criteria set out in § 1008.4.
(b) Authority to decide. A decision on a petition for amendment shall be made by the Privacy Act Officer in consultation with the General Counsel.
(c) Acknowledgment of receipt. Unless processing of a petition is completed within ten working days, the receipt of the petition for amendment shall be acknowledged in writing by the Privacy Act Officer.
(d) Inadequate petitions. (1) If a petition does not meet the requirements of § 1008.19, the petitioner shall be so advised and shall be told what additional information must be submitted to meet the requirements of § 1008.19.
(2) If the petitioner fails to submit the additional information within a reasonable time, the petition may be rejected. The rejection shall be in writing and shall meet the requirements of paragraph (e) of this section.
(e) Form of decision. (1) A decision on a petition for amendment shall be in writing and shall state concisely the basis for the decision.
(2) If the petition for amendment is rejected, in whole or part, the petitioner shall be informed in a written response which shall:
(i) State concisely the basis for the decision;
(ii) Advise the petitioner that the rejection may be appealed to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052; and
(iii) State that the appeal must be received by the foregoing official within 20 working days of the decision.
(3) If the petition for amendment involves records which fall under the jurisdiction of another agency and is rejected, in whole or part, the petitioner shall be informed in a written response which shall:
(i) State concisely the basis for the decision;
(ii) Include the name, position title, and address of the official responsible for the denial; and
(iii) Advise the individual that an appeal of the rejection may be made only to the appropriate official of the relevant agency, and include that official’s name, position title, and address.
(4) Copies of rejections of petitions for amendment made pursuant to paragraphs (e)(2) and (e)(3) of this section will be provided to the Privacy Act Officer.
(f) Implementation of initial decision. If a petition for amendment is accepted, in whole or part, the system manager maintaining the record shall:
(1) Correct the record accordingly and,
(2) Where an accounting of disclosures has been made pursuant to § 1008.10, advise all previous recipients of the record that the correction was made and the substance of the correction.
§ 1008.21 Petitions for amendment: Time limits for processing.
(a) Acknowledgment of receipt. The acknowledgment of receipt of a petition required by § 1008.20(c) shall be dispatched not later than ten working days after receipt of the petition by the Privacy Act Officer, unless a decision on the petition has been previously dispatched.
(b) Decision on petition. A petition for amendment shall be processed promptly. A determination whether to accept or reject the petition for amendment shall be made within 30 working days after receipt of the petition by the system manager responsible for the system containing the challenged record.
(c) Suspension of time limit. The 30 working day time limit for a decision on a petition shall be suspended if it is necessary to notify the petitioner, pursuant to § 1008.20(d), that additional information in support of the petition is required. Running of the 30 working day time limit shall resume on receipt of the additional information by the system manager responsible for the system containing the challenged record.
(d) Extensions of time. (1) The 30 working day time limit for a decision on a petition may be extended if the Privacy Act Officer determines that an extension is necessary for one of the following reasons:
(i) A decision on the petition requires analysis of voluminous record or records;
(ii) Some or all of the challenged records must be collected from facilities other than the facility at which the Privacy Act Officer is located; or
(iii) Some or all of the challenged records are of concern to another agency of the Federal Government whose assistance and views are being sought in processing the request.
(2) If the official responsible for making a decision on the petition determines that an extension is necessary, the official shall promptly inform the petitioner of the extension and the date on which a decision is expected to be dispatched.
§ 1008.22 Petitions for amendment: Appeals.
(a) Right of appeal. Except for appeals pertaining to records under the jurisdiction of another agency, where a petition for amendment has been rejected in whole or in part, the individual submitting the petition may appeal the denial to the Executive Director.
(b) Time for appeal. (1) An appeal must be received no later than 20 working days after the date of the decision on a petition.
(2) The Executive Director may, for good cause shown, extend the time for submission of an appeal if a written request for additional time is received within 20 working days of the date of the decision on a petition.
(c) Form of appeal. (1) An appeal shall be in writing and shall attach copies of the initial petition and the decision on that petition.
(2) The appeal shall contain a brief statement of the reasons why the appellant believes the decision on the petition to have been in error.
(3) The appeal shall be addressed to the Executive Director, The Presidio Trust, P.O. Box 29052, San Francisco, CA 94129-0052.
§ 1008.23 Petitions for amendment: Action on appeals.
(a) Authority. Appeals from decisions on initial petitions for amendment shall be decided by the Executive Director, in consultation with the General Counsel.
(b) Time limit. (1) A final determination on any appeal shall be made within 30 working days after receipt of the appeal.
(2) The 30 working day period for decision on an appeal may be extended, for good cause shown, by the Executive Director. If the 30 working day period is extended, the individual submitting the appeal shall be notified of the extension and of the date on which a determination on the appeal is expected to be dispatched.
(c) Form of decision. (1) The final determination on an appeal shall be in writing and shall state the basis for the determination.
(2) If the determination upholds, in whole or part, the initial decision rejecting the petition for amendment, the determination shall also advise the individual submitting the appeal:
(i) Of his or her right to file a concise statement of the reasons for disagreeing with the decision of the Presidio Trust;
(ii) Of the procedure established by § 1008.24 for the filing of the statement of disagreement;
(iii) That the statement which is filed will be made available to anyone to whom the record is subsequently disclosed together with, at the discretion of the Presidio Trust, a brief statement by the Presidio Trust summarizing its reasons for refusing to amend the record;
(iv) That prior recipients of the challenged record will be provided a copy of any statement of dispute to the extent that an accounting of disclosure was maintained; and
(v) Of his or her right to seek judicial review of the Presidio Trust’s refusal to amend the record.
(3) If the determination reverses, in whole or in part, the initial decision rejecting the petition for amendment, the system manager responsible for the system containing the challenged record shall be directed to:
(i) Amend the challenged record accordingly; and
(ii) If an accounting of disclosures has been made, advise all previous recipients of the record of the amendment and its substance.
§ 1008.24 Statements of disagreement.
(a) Filing of statement. If the determination of the Executive Director under § 1008.23 rejects in whole or part, a petition for amendment, the individual submitting the petition may file with the Privacy Act Officer a concise written statement setting forth the reasons for disagreement with the determination of the Presidio Trust.
(b) Disclosure of statements. In any disclosure of a record containing information about which an individual has filed a statement of disagreement under this section which occurs after the filing of the statement, the disputed portion of the record will be clearly noted and the recipient shall be provided copies of the statement of disagreement. If appropriate, a concise statement of the reasons of the Presidio Trust for not making the requested amendments may also be provided to the recipient.
(c) Maintenance of statements. System managers shall develop procedures to assure that statements of disagreement filed with them shall be maintained in such a way as to assure dissemination of the statements to recipients of the records to which the statements pertain.
PART 1009—ADMINISTRATIVE CLAIMS UNDER THE FEDERAL TORT CLAIMS ACT
§ 1009.1 Purpose.
The purpose of this part is to establish procedures for the filing and settlement of claims under the Federal Tort Claims Act (in part, 28 U.S.C. secs. 2401(b), 2671-2680, as amended). The officers to whom authority is delegated to settle tort claims shall follow and be guided by the regulations issued by the Attorney General prescribing standards and procedures for settlement of tort claims (28 CFR part 14).
§ 1009.2 Procedure for filing claims.
(a) The procedure for filing and the contents of claims shall be pursuant to 28 CFR 14.2, 14.3 and 14.4.
(b) Claims shall be filed directly with the Presidio Trust.
(c) Upon receipt of a claim, the time and date of receipt shall be recorded. The claim shall be forwarded with the investigative file immediately to the General Counsel for determination.
§ 1009.3 Denial of claims.
Denial of a claim shall be communicated as provided by 28 CFR 14.9.
§ 1009.4 Payment of claims.
(a) In making an award from proceeds or revenues of the Presidio Trust, the Presidio Trust will process payment using an agreement signed by the claimant and the Executive Director, or his or her designee. In making an award from proceeds or revenues not provided for by the Presidio Trust, the Presidio Trust will process payment as prescribed by 28 CFR 14.10.
(b) Prior to payment, appropriate releases shall be obtained as provided in 28 CFR 14.10.
(c) Any award, compromise, or settlement in excess of $25,000 shall be effected only with the prior written approval of the Attorney General or his or her designee.
§ 1009.5 Indemnification of Presidio Trust directors and employees.
(a) The Presidio Trust may indemnify a Presidio Trust director or employee who is personally named as a defendant in any civil suit in state or federal court or an arbitration proceeding or other proceeding seeking damages against a Presidio Trust director or employee personally, for any verdict, judgment, or other monetary award which is rendered against such director or employee, provided that the conduct giving rise to the verdict, judgment, or award was taken within the scope of his or her duties or employment and that such indemnification is in the interest of the Presidio Trust as determined by
(1) The Board, with respect to claims against an employee; or
(2) A majority of the Board, exclusive of the director against whom claims have been made, with respect to claims against a director.
(b) The Presidio Trust may settle or compromise a personal damage claim against a Presidio Trust director or employee by the payment of available funds, at any time, provided the alleged conduct giving rise to the personal damage claim was taken within the scope of the duties or employment of the director or employee and that such settlement or compromise is in the interest of the Presidio Trust as determined by:
(1) the Board, with respect to claims against an employee; or
(2) a majority of the Board, exclusive of the director against whom claims have been made, with respect to claims against a director.
(c) The Presidio Trust will not entertain a request either to agree to indemnify or to settle a personal damage claim before entry of an adverse verdict, judgment, or award, unless exceptional circumstances exist as determined by:
(1) the Board, with respect to claims against an employee; or
(2) a majority of the Board, exclusive of the director against whom claims have been made, with respect to claims against a director.
(d) A Presidio Trust director or employee may request indemnification to satisfy a verdict, judgment, or award entered against the director or employee. The director or employee shall submit a written request, with appropriate documentation including copies of the verdict, judgment, award, or settlement proposal, in a timely manner to the General Counsel, who shall make a recommended disposition of the request. Where appropriate, the Presidio Trust shall seek the views of the Department of Justice. The General Counsel shall forward the request, the accompanying documentation, and the General Counsel’s recommendation to the Board for decision. In the event that a claim is made against the General Counsel, the Chair shall designate a director or employee of the Trust to fulfill the duties otherwise assigned to the General Counsel under this section.
(e) Any payment under this section either to indemnify a Presidio Trust director or employee or to settle a personal damage claim shall be contingent upon the availability of funds.
PART 1010—ENVIRONMENTAL QUALITY
§ 1010.1 Policy.
The Presidio Trust’s policy is to:
(a) Use all practical means, consistent with the Trust’s statutory authority, available resources, and national policy, to protect and enhance the quality of the human environment;
(b) Ensure that environmental factors and concerns are given appropriate consideration in decisions and actions by the Trust;
(c) Use systematic and timely approaches which will ensure the integrated use of the natural and social sciences and environmental design arts in planning and decision-making which may have an impact on the human environment;
(d) Develop and utilize ecological, cultural, and other environmental information in the management of the Presidio Trust Area and its natural, historic, scenic, cultural, and recreational resources pursuant to the Trust Act;
(e) Invite the cooperation and encourage the participation, where appropriate, of Federal, State, and local authorities and the public in Trust planning and decision-making processes that affect the quality of the human environment; and
(f) Minimize any possible adverse effects of Trust decisions and actions upon the quality of the human environment.
§ 1010.2 Purpose.
The regulations in this part incorporate and supplement the Council on Environmental Quality’s (CEQ) regulations at 40 CFR parts 1500 through 1508 for implementing the procedural provisions of the National Environmental Policy Act of 1969, as amended (NEPA), and otherwise to describe how the Trust intends to consider environmental factors and concerns in the Trust’s decision-making process within the requirements set forth in NEPA and CEQ regulations.
§ 1010.3 Definitions.
(a) The following terms have the following meanings as used in this part:
Decision-maker means the Board or its designee.
EA means an environmental assessment, as defined at 40 CFR 1508.9.
EIS means an environmental impact statement, as defined at 40 CFR 1508.11.
Project applicant means an individual, firm, partnership, corporation, joint venture, or other public or private entity other than the Trust (including a combination of more than one such entities) which seeks to demolish, construct, reconstruct, develop, preserve, rehabilitate, or restore real property within the Presidio Trust Area.
(b) If not defined in this part or in this chapter, other terms used in this part have the same meanings as those provided in 40 CFR part 1508.
§ 1010.4 NEPA Compliance Coordinator.
(a) The NEPA Compliance Coordinator, as designated by the Executive Director, shall be the Trust official responsible for implementation and operation of the Trust’s policies and procedures on environmental quality and control. The delegation of this responsibility shall not abrogate the responsibility of the Executive Director and the Board to ensure that NEPA and other applicable laws are followed, or the right of the Executive Director and the Board to overrule or alter decisions of the NEPA Compliance Coordinator in accordance with the Trust’s regulations and procedures.
(b) The NEPA Compliance Coordinator shall:
(1) Coordinate the formulation and revision of Trust policies and procedures on matters pertaining to environmental protection and enhancement;
(2) Establish and maintain working relationships with relevant government agencies concerned with environmental matters;
(3) Develop procedures within the Trust’s planning and decision-making processes to ensure that environmental factors are properly considered in all proposals and decisions in accordance with this part;
(4) Develop, monitor, and review the Trust’s implementation of standards, procedures, and working relationships for protection and enhancement of environmental quality and compliance with applicable laws and regulations;
(5) Monitor processes to ensure that the Trust’s procedures regarding consideration of environmental quality are achieving their intended purposes;
(6) Advise the Board, officers, and employees of the Trust of technical and management requirements of environmental analysis, of appropriate expertise available, and, in consultation with the Trust’s General Counsel, of relevant legal developments;
(7) Monitor the consideration and documentation of the environmental aspects of the Trust’s planning and decision-making processes by appropriate officers and employees of the Trust;
(8) Ensure that all EA’s and EIS’s are prepared in accordance with the appropriate regulations adopted by the CEQ and the Trust;
(9) Consolidate and transmit to appropriate parties the Trust’s comments on EIS’s and other environmental reports prepared by other agencies;
(10) Acquire information and prepare appropriate reports on environmental matters required of the Trust;
(11) Coordinate Trust efforts to make available to other parties information and advice on the Trust’s policies for protecting and enhancing the quality of the environment; and
(12) Designate other Trust employees to execute these duties under the supervision of the NEPA Compliance Coordinator, where necessary for administrative convenience and efficiency. As used in this chapter, the term “NEPA Compliance Coordinator” includes any such designee.
§ 1010.5 Major decision points.
(a) The possible environmental effects of a proposed action or project within the Presidio Trust Area must be considered along with technical, financial, and other factors throughout the decision-making process. Most Trust projects have three distinct stages in the decision-making process:
(1) Conceptual or preliminary study stage;
(2) Detailed planning or final decision stage;
(3) Implementation stage.
(b) Environmental review will be integrated into the decision-making process of the Trust as follows:
(1) During the conceptual or preliminary study stage, the NEPA Compliance Coordinator shall determine whether the proposed action or project is one which is categorically excluded under § 1010.7, has been adequately reviewed in a previously prepared EA and/or EIS, or requires further NEPA review (i.e., an EA or an EIS).
(2) If the proposed action or project is not categorically excluded and has not been adequately reviewed in a previously prepared EA and/or EIS, then prior to the Trust’s proceeding beyond the conceptual or preliminary study stage, the NEPA Compliance Coordinator must determine whether an EIS is required. When appropriate, prior to the determination as to whether an EIS is required, the NEPA Compliance Coordinator may initiate a public scoping process in order to inform such a determination.
(3) If an EIS is determined to be necessary, the Trust shall initiate a public scoping process in accordance with 40 CFR 1501.7. An EIS, if determined necessary, must be completed and circulated at the earliest point at which meaningful analysis can be developed for the proposed action or project and prior to the Trust’s final approval of the proposed action or project.
§ 1010.6 Determination of requirement for EA or EIS.
In deciding whether to require the preparation of an EA or an EIS, the NEPA Compliance Coordinator will determine whether the proposal is one that:
(a) Normally does not require either an EA or an EIS;
(b) Normally requires an EIS; or
(c) Normally requires an EA, but not necessarily an EIS.
§ 1010.7 Actions that do not require an EA or EIS.
(a) Categorical Exclusions. Pursuant to 40 CFR 1508.4, the Trust has determined that the categories of action identified in this paragraph have no significant effect, either individually or cumulatively, on the human environment and are therefore categorically excluded. Such actions (whether approved by the Trust or undertaken by the Trust directly or indirectly) do not require the preparation of an EA or an EIS:
(1) Personnel actions and investigations and personal services contracts;
(2) Administrative actions and operations directly related to the operation of the Trust (e.g., purchase of furnishings, services, and equipment) provided such actions and operations are consistent with applicable Executive Orders;
(3) Internal organizational changes and facility and office expansions, reductions, and closings;
(4) Routine financial transactions, including such things as salaries and expenses, procurement, guarantees, financial assistance, income transfers, audits, fees, bonds and royalties;
(5) Management, formulation, allocation, transfer and reprogramming of the Trust’s budget;
(6) Routine and continuing government business, including such things as supervision, administration, operations, maintenance, and replacement activities having limited context and intensity (limited size and magnitude or short-term effects);
(7) Preparation, issuance, and submittal of publications and routine reports;
(8) Activities which are educational, informational, or advisory (including interpretive programs), or otherwise in consultation with or providing technical assistance to other agencies, public and private entities, visitors, individuals, or the general public;
(9) Legislative proposals of an administrative or technical nature, including such things as changes in authorizations for appropriations or financing authority, minor boundary changes and land transactions; or having primarily economic, social, individual or institutional effects, as well as comments and reports on legislative proposals;
(10) Proposal, adoption, revision, and termination of policies, directives, regulations, and guidelines:
(i) That are of an administrative, financial, legal, technical, or procedural nature, the environmental effects of which are too broad, speculative, or conjectural to lend themselves to environmental analysis and the implementation of which will be subject to the NEPA process either collectively or on a case-by-case basis; or
(ii) Where such actions will not potentially:
(A) Increase public use to the extent of compromising the nature and character of the area or of causing significant physical damage to it;
(B) Introduce non-compatible uses that might compromise the nature and characteristics of the area or cause significant physical damage to it;
(C) Conflict with adjacent ownerships or land uses; or
(D) Cause a significant nuisance to adjacent owners or occupants;
(11) Preparation, approval, coordination, and implementation of plans, including priorities, justifications, and strategies, for research, monitoring, inventorying, and information gathering that is not or is only minimally manipulative and causes no or only minimal physical damage;
(12) Identification, nomination, certification, and determination of eligibility of properties for listing in the National Register of Historic Places and the National Historic Landmark and National Natural Landmark Programs;
(13) Minor or temporary changes in amounts or types of visitor use for the purpose of ensuring visitor safety or resource protection, minor changes in programs or regulations pertaining to visitor activities, and approval of permits or other use and occupancy agreements for special events or public assemblies and meetings, provided such events, assemblies, and meetings entail only short-term or readily mitigated environmental impacts;
(14) Designation of environmental study areas and research areas, including those closed temporarily or permanently to the public, provided such designation would cause no or only minimal environmental impact;
(15) Land and boundary surveys and minor boundary adjustments or transfers of administrative jurisdiction resulting in no significant change in land use;
(16) Archaeological surveys and permits involving only surface collection or small-scale test excavations;
(17) Changes or amendments to an approved plan or action when such changes or amendments would cause no or only minimal environmental impact;
(18) Contracts, work authorizations, or procurement actions related to proposals, programs, and master agreements related to administrative operation of the Trust;
(19) The leasing, permitting, sale, or financing of, or granting of non-fee interests regarding, real or personal property in the Presidio Trust Area, provided that such actions would have no or only minimal environmental impact;
(20) Extension, reissuance, renewal, minor modification, or conversion in form of agreements for use of real property (including but not limited to leases, permits, licenses, concession contracts, use and occupancy agreements, easements, and rights-of-way), so long as such agreements were previously subject to NEPA and do not involve new construction or new or substantially greater environmental impacts, and so long as no new information is known or no changed circumstances have occurred that would give rise to new or substantially greater environmental impacts.
(21) Rehabilitation, modification, or improvement of historic properties that have been determined to be in conformance with the Secretary of the Interior’s “Standards for the Treatment of Historic Properties” at 36 CFR part 68 and that would have no or only minimal environmental impact;
(22) Rehabilitation, maintenance, modification or improvement of non-historic properties that is consistent with applicable Executive Orders, provided there is no potential for significant environmental impacts, including impacts to cultural landscapes or archaeological resources;
(23) Removal, reduction, or restraint of resident individuals of species that are not threatened or endangered which pose dangers to visitors, residents, or neighbors or immediate threats to resources of the Presidio Trust Area;
(24) Removal of non-historic materials and structures in order to restore natural conditions when such removal has no potential for significant environmental impacts, including impacts to cultural landscapes or archaeological resources and is consistent with applicable Executive Orders;
(25) Installation of signs, displays, and kiosks, etc.;
(26) Replacement of minor structures and facilities (e.g., signs, kiosks, fences, comfort stations, and parking lots) with little or no change in location, capacity, or appearance;
(27) Repair, resurfacing, striping, installation of traffic control devices, and repair/replacement of guardrails, culverts, signs, and other minor features, on existing roads and parking facilities, provided there is no potential for significant environmental impact;
(28) Minor trail relocation, development of compatible trail networks on roads or other formally established routes, and trail maintenance and repair;
(29) Construction or rehabilitation in previously disturbed or developed areas required to meet health or safety regulations, or to meet requirements for making facilities accessible to the handicapped provided such construction or rehabilitation is implemented in a manner consistent with applicable Executive Orders;
(30) Landscaping and landscape maintenance in previously disturbed or developed areas;
(31) Minor changes in programs and regulations pertaining to visitor activities;
(32) Routine maintenance, property management, and resource management, with no potential for significant environmental impact and that are consistent with the Secretary of the Interior’s “Standards for the Treatment of Historic Properties” at 36 CFR part 68, as applicable, and with applicable Executive Orders;
(33) Upgrading or adding new utility facilities to existing poles, or replacement poles which do not change existing pole line configurations.
(34) Issuance of rights-of-way for overhead utility lines to an individual building or well from an existing line where installation will not result in significant visual intrusion or non-conformance with the Secretary’s “Standards for the Treatment of Historic Properties” at 36 CFR part 68, as applicable, and will involve no clearance of vegetation other than for placement of poles;
(35) Issuance of rights-of-way for minor overhead utility lines not involving placement of poles or towers and not involving vegetation management or significant visual intrusion in an area administered by NPS or the Trust or non-conformance with the Secretary’s “Standards for the Treatment of Historic Properties” at 36 CFR part 68, as applicable;
(36) Installation of underground utilities in previously disturbed areas having stable soils, or in an existing utility right-of-way; and
(37) Experimental testing of no longer than 180 days of mass transit systems, and changes in operation of existing systems with no potential for significant environmental impact.
(b) Extraordinary circumstances. An action that falls into one or more of the categories in paragraph (a) of this section may still require the preparation of an EIS or an EA if the NEPA Compliance Coordinator determines that it meets the criteria stated in § 1010.8(b) or § 1010.10(b), respectively, or involves extraordinary circumstances that may have a significant environmental effect. At its discretion, the Trust may require the preparation of an EA or an EIS for a proposal or action that otherwise qualifies for a categorical exclusion. Criteria used in determining whether to prepare an EA or EIS for an action that otherwise qualifies for a categorical exclusion include whether an action may:
(1) Have significant adverse effects on public health or safety;
(2) Have significant adverse effects on such unique geographic characteristics as historic or cultural resources, park, recreation or refuge lands, sole or principal drinking water aquifers, wetlands, floodplains, or ecologically significant or critical areas;
(3) Have highly controversial environmental effects;
(4) Have highly uncertain and potentially significant environmental effects or involve unique or unknown environmental risks;
(5) Establish a precedent for future action or represent a decision in principle about future actions with potentially significant environmental effects;
(6) Be directly related to other actions with individually insignificant but cumulatively significant environmental effects;
(7) Have significant adverse effects on properties listed or eligible for listing on the National Register of Historic Places;
(8) Have significant adverse effects on species listed or proposed to be listed on the List of Endangered or Threatened Species, or have adverse effects on designated Critical Habitat for these species;
(9) Require compliance with Executive Order 11988 (Floodplain Management), Executive Order 11990 (Protection of Wetlands), Executive Order 13007 (Indian Sacred Sites), or the Fish and Wildlife Coordination Act; and/or
(10) Threaten to violate a Federal, State, local or tribal law or requirement imposed for the protection of the environment.
§ 1010.8 Actions that normally require an EIS.
(a) General procedure. So long as a proposed action or project is not categorically excluded under § 1010.7, the Trust shall require the preparation of an EA to determine if the proposed action or project requires an EIS. Nevertheless, if it is readily apparent to the NEPA Compliance Coordinator that the proposed action or project will have a significant impact on the environment, an EA is not required, and the Trust will prepare or direct the preparation of an EIS without preparing or completing the preparation of an EA. To assist the NEPA Compliance Coordinator in determining if a proposal or action normally requires the preparation of an EIS, the following criteria and categories of action are provided.
(b) Criteria. Criteria used to determine whether proposals or actions may significantly affect the environment and therefore require an EIS are described in 40 CFR 1508.27.
(c) Categories of action. The following categories of action normally require an EIS:
(1) Legislative proposals made by the Trust to the United States Congress, other than those described in § 1010.7(b)(9);
(2) Approval, funding, construction, and/or demolition in preparation for construction of any new building, if that activity has a significant effect on the human environment;
(3) Proposals that would significantly alter the kind and amount of natural, recreational, historical, scenic, or cultural resources of the Presidio Trust Area or the integrity of the setting; and
(4) Approval or amendment of a general land use or resource management plan for the entire Presidio Trust Area.
§ 1010.9 Preparation of an EIS.
(a) Notice of intent. When the Trust decides to prepare an EIS, it shall publish a notice of intent in the
(b) Preparation. After having determined that an EIS will be prepared and having published the notice of intent, the Trust will begin to prepare or to direct the preparation of the EIS. The EIS shall be formatted in accordance with 40 CFR 1502.10.
(c) Supplemental environmental impact statements. The Trust may supplement a draft or final EIS at any time. The Trust shall prepare a supplement to either a draft or final EIS when:
(1) Substantial changes are proposed to an action analyzed in the draft or final EIS that are relevant to environmental concerns;
(2) There are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts; or
(3) Actions are proposed which relate to or are similar to other actions taken or proposed and that together will have a cumulatively significant impact on the human environment.
§ 1010.10 Actions that normally require an EA.
(a) General procedure. If a proposal or action is not one that normally requires an EIS, and does not qualify for a categorical exclusion under § 1010.7, the Trust will require, prepare, or direct the preparation of an EA. An EA should be prepared when the Trust has insufficient information on which to determine whether a proposal may have significant impacts. An EA assists the Trust in complying with NEPA when no EIS is necessary, and it facilitates the preparation of an EIS, if one is necessary.
(b) Criteria. Criteria used to determine those categories of action that normally require an EA, but not necessarily an EIS, include:
(1) Potential for degradation of environmental quality;
(2) Potential for cumulative adverse impact on environmental quality; and
(3) Potential for adverse impact on protected resources (e.g., natural, scenic, recreational, historical, and cultural resources).
(c) Categories of action. The following categories of action normally require the preparation of an EA:
(1) Promulgation of regulations and requirements that are not categorically excluded;
(2) Proposals submitted by project applicants to the Trust for its review, as described in § 1010.14;
(3) Proposals to add or alter access between the Presidio Trust Area and surrounding neighborhoods; and
(4) Contracts, work authorizations, and master agreements related to and implementing programs, policies, and proposals which are not categorically excluded and for which there is no previously prepared EA and/or EIS.
§ 1010.11 Preparation of an EA.
(a) When to prepare. The Trust will begin the preparation of an EA (or require it to be begun) as early as possible after it is determined by the NEPA Compliance Coordinator to be required. The Trust will provide notice of such determinations in accordance with § 1010.12. The Trust may prepare or require an EA at any time to assist planning and decision-making.
(b) Content and format. An EA is a concise public document used to determine whether to prepare an EIS. An EA should address impacts, including cumulative impacts, on those resources that are specifically relevant to the particular proposal. Those impacts should be addressed in as much detail as is necessary to allow an analysis of the alternatives and the proposal. The EA shall contain brief discussions of the following topics:
(1) Purpose and need for the proposed action.
(2) Description of the proposed action.
(3) Alternatives considered, including a No Action alternative.
(4) Environmental effects of the proposed action and the alternatives, including mitigation measures.
(5) Listing of agencies, organizations, and/or persons consulted.
(c) Finding of no significant impact (FONSI). If an EA is completed and the NEPA Compliance Coordinator determines that an EIS is not required, then the NEPA Compliance Coordinator shall prepare a finding of no significant impact. The finding of no significant impact shall be made available to the public by the Trust as specified in 40 CFR 1506.6.
(d) Mitigated FONSI. If an EA is completed and the NEPA Compliance Coordinator determines that an EIS is required, then prior to preparation of an EIS, the proposal may be revised in order to mitigate the impacts identified in the EA through adherence to legal requirements, inclusion of mitigation as an integral part of the proposal, and/or fundamental changes to the proposal. A supplemental EA will be prepared on the revised proposal and will result in a Mitigated Finding of No Significant Impact, preparation of an EIS, or additional revision of the proposal and a supplemental EA.
§ 1010.12 Public involvement.
The Trust will make public involvement an essential part of its environmental review process. Public notice of anticipated Trust actions that may have a significant environmental impact, opportunities for involvement, and availability of environmental documents will be provided through announcements in the Trust’s monthly newsletter, postings on its web site (www.presidiotrust.gov), placement of public notices in newspapers, direct mailings, and other means appropriate for involving the public in a meaningful way. The Trust will conduct scoping with interested federal, state and local agencies and Indian tribes, will solicit and accept written scoping comments and will hold public scoping meetings to gather early input whenever it determines an EIS to be necessary and otherwise as appropriate. Notice of all public scoping meetings will be given in a timely manner. Interested persons may also obtain information concerning any pending EIS or any other element of the environmental review process of the Trust by contacting the NEPA Compliance Coordinator at the following address: Presidio Trust, P.O. Box 29052, San Francisco, California 94129-0052.
§ 1010.13 Trust decision-making procedures.
To ensure that at major decision-making points all relevant environmental concerns are considered by the decision-maker, the following procedures are established.
(a) An environmental document (i.e., the EA, finding of no significant impact, EIS, or notice of intent), in addition to being prepared at the earliest point in the decision-making process, shall accompany the relevant proposal or action through the Trust’s decision-making process to ensure adequate consideration of environmental factors.
(b) The Trust shall consider in its decision-making process only decision alternatives encompassed by the range of alternatives discussed in the relevant environmental documents. Also, where an EIS has been prepared, the Trust shall consider all alternatives described in the EIS, a written record of the consideration of alternatives during the decision-making process shall be maintained, and a monitoring and enforcement program shall be adopted and summarized where applicable for any mitigation.
(c) Any environmental document prepared for a proposal or action shall be made part of the record of any formal rulemaking by the Trust.
§ 1010.14 Review of proposals by project applicants.
(a) An EA shall be required for each proposal for demolition, construction, reconstruction, development, preservation, rehabilitation, or restoration of real property submitted by a project applicant to the Trust for its review, and which the decision-maker agrees to consider, unless categorically excluded or covered by a previously prepared EA and/or EIS.
(b) The decision-maker may not take any approval action on such a proposal submitted by a project applicant until such time as the appropriate environmental review documents have been prepared and submitted to the decision-maker.
(c) At a minimum, and as part of any submission made by a project applicant to the decision-maker for its approval, such project applicant shall make available data and materials concerning the proposal sufficient to permit the Trust to carry out its environmental review responsibilities. When requested, the project applicant shall provide additional information that the NEPA Compliance Coordinator believes is necessary to permit it to satisfy its environmental review functions.
(d) With respect to each project proposed for consideration for which the NEPA Compliance Coordinator determines that an EA shall be prepared, the decision-maker may require a project applicant to submit a draft EA regarding its proposal for the Trust’s evaluation and revision. In accordance with 40 CFR 1506.5(b), the Trust shall make its own evaluation of the environmental issues and shall take responsibility for the scope and content of the final EA.
(e) With respect to each project proposed for consideration for which the NEPA Compliance Coordinator determines an EIS shall be prepared, the decision-maker may require a project applicant to pay a non-refundable fee to the Trust sufficient to cover a portion or all of the Trust’s anticipated costs associated with preparation and review of the EIS, including costs associated with review under other applicable laws. Such fee shall be paid to the Trust in full prior to commencement of the preparation of the EIS or any amendment or supplement thereto.
(f) In accordance with 40 CFR 1506.5(c), the EIS shall be prepared by the Trust and/or by contractors who are selected by the Trust and who certify that they have no financial or other interest in the outcome of the project, and the Trust shall independently evaluate the EIS prior to its approval and take responsibility for ensuring its adequacy. The EIS shall be prepared in accordance with 40 CFR part 1502.
(g) The NEPA Compliance Coordinator may set time limits for environmental review appropriate to each proposal, consistent with 40 CFR 1501.8 and 1506.10.
(h) The NEPA Compliance Coordinator shall at the earliest possible time ensure that the Trust commences its environmental review on a proposed project and shall provide the project applicant with any policies or information deemed appropriate in order to permit effective and timely review by the Trust of a proposal once it is submitted to the decision-maker for approval.
§ 1010.15 Actions where lead agency designation is necessary.
(a) Consistent with 40 CFR 1501.5, where a proposed action by the Trust involves one or more other Federal agencies, or where actions by the Trust and one or more Federal agencies are directly related to each other because of their functional interdependence or geographical proximity, the Trust will seek designation as lead agency for those actions that relate solely to the Presidio Trust Area.
(b) For an action that qualifies as one for which the Trust will seek designation as lead agency, the Trust will promptly consult with the appropriate Federal agencies to establish lead agency, joint lead agency, and/or cooperating agency designations.
(c) For an action as to which the Trust undertakes lead, joint lead, or cooperating agency status, the Trust is authorized to enter into a memorandum of understanding or agreement to define the rights and responsibilities of the relevant agencies.
§ 1010.16 Actions to encourage agency cooperation early in the NEPA process.
Consistent with 40 CFR 1501.6, the Trust may request the NPS to be a cooperating agency for actions or projects significantly affecting the quality of the Presidio. In addition, upon request of the Trust, any other Federal, State, local, or tribal agency that has jurisdiction by law or special expertise with respect to any environmental issue that should be addressed in the analysis may be a cooperating agency. The Trust shall use the environmental analysis and proposals of cooperating agencies with jurisdiction by law or special expertise to the maximum extent possible consistent with its responsibility as lead or joint lead agency.
§ 1010.17 Actions to eliminate duplication with State and local procedures.
Consistent with 40 CFR 1506.2, the Trust shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and State and local requirements. Such cooperation shall to the fullest extent possible include:
(a) Joint planning processes;
(b) Joint environmental research and studies;
(c) Joint public hearings (except where otherwise provided by statute); and
(d) Joint environmental assessments and/or Environmental Impact Statements/Environmental Impact Reports.
PART 1011—DEBT COLLECTION
Subpart A—General Provisions
§ 1011.1 What definitions apply to the regulations in this part?
As used in this part:
Administrative offset or offset means withholding funds payable by the United States (including funds payable by the United States on behalf of a State Government) to, or held by the United States for, a person to satisfy a debt owed by the person. The term “administrative offset” includes, without limitation, the offset of federal salary, vendor, retirement, and Social Security benefit payments. The terms “centralized administrative offset” and “centralized offset” refer to the process by which the Treasury Department’s Financial Management Service offsets federal payments through the Treasury Offset Program.
Administrative wage garnishment means the process by which a Federal agency may, without first obtaining a court order, order a non-Federal employer to withhold amounts from a debtor’s wages to satisfy a delinquent debt.
Agency or Federal agency means a department, agency, court, court administrative office, or instrumentality in the executive, judicial or legislative branch of the federal government, including government corporations.
Certification means a written statement received by a paying agency or disbursing official that requests the paying agency or disbursing official to offset the salary of an employee and specifies that required procedural protections have been afforded the employee.
Compromise means the settlement or forgiveness of all or a portion of a debt.
Creditor agency means any Federal agency that is owed a debt and includes a debt collection center when it is acting on behalf of the Presidio Trust.
Debt means any amount of money, funds or property that has been determined by an appropriate agency official to be owed to the United States by a person. As used in this part, the term “debt” does not include debts arising under the Internal Revenue Code.
Debt collection center means the Treasury Department or any agency or division designated by the Secretary of the Treasury with authority to collect debts on behalf of creditor agencies.
Debtor means a person who owes a debt to the United States.
Delinquent debt means a debt that has not been paid by the date specified in the Presidio Trust’s initial written demand for payment or applicable agreement or instrument (including a post-delinquency payment agreement) unless other satisfactory payment arrangements have been made.
Disposable pay means that part of an employee’s pay that remains after deductions that are required by law to be withheld have been made.
Employee or Federal employee means a current employee of the Presidio Trust or other Federal agency, including a current member of the Armed Forces, Reserve of the Armed Forces of the United States or of the National Guard.
FCCS means the Federal Claims Collection Standards, which were jointly published by the Departments of the Treasury and Justice and codified at 31 CFR parts 900-904.
FMS means the Financial Management Service, a bureau of the Treasury Department, which is responsible for the centralized collection of delinquent debts through the offset of Federal payments and other means.
IRS means the Internal Revenue Service.
Paying agency means any agency that is making payments of any kind to a debtor. In some cases, the Presidio Trust may be both the paying agency and the creditor agency.
Person means an individual, corporation, partnership, association, organization, state or local government, or any other type of entity other than a Federal agency.
Private collection contractor means a private debt collector under contract with an agency to collect a non-tax debt owed to the Presidio Trust.
Salary offset means a type of administrative offset to collect a debt owed by a Federal employee from the current pay account of the employee.
Tax refund offset means the reduction of a tax refund by the amount of a delinquent debt owed to the Presidio Trust.
Treasury Department means the United States Department of the Treasury.
Treasury Offset Program means the Treasury Department’s program for withholding funds payable by the United States to a person to satisfy a debt owed by the person utilizing the Financial Management Service’s system that compares information about payments with information about debts.
§ 1011.2 Why is the Presidio Trust issuing these regulations and what do they cover?
(a) Scope. The Presidio Trust is issuing these regulations to provide procedures for the collection of debts owed to the Presidio Trust. This part also provides procedures for collection of other debts owed to the United States when a request for offset of a Treasury payment is received by the Treasury Department from another agency (for example, when a Presidio Trust employee owes a debt to the United States Department of Education).
(b) Applicability. (1) This part applies to the Presidio Trust when collecting a debt and to persons who owe a debt to the Presidio Trust, or to Federal agencies requesting offset of a payment issued by the Presidio Trust as a paying agency (including salary payments to Presidio Trust employees).
(2) This part does not apply to tax debts.
(3) Nothing in this part precludes collection or disposition of any debt under statutes and regulations other than those described in this part.
(c) Additional policies, guidelines and procedures. The Presidio Trust may adopt additional policies, guidelines and procedures consistent with this part and other applicable law.
(d) Duplication not required. Nothing in this part requires the Presidio Trust to duplicate notices or administrative proceedings required by contract, this part or other laws or regulations.
(e) Use of multiple collection remedies allowed. The Presidio Trust may simultaneously use multiple collection remedies to collect a debt, except as prohibited by law. This part is intended to promote aggressive debt collection, using for each debt all available collection remedies. These remedies are not listed in any prescribed order to provide the Presidio Trust with flexibility in determining which remedies will be most efficient in collecting the particular debt.
(f) Cross-servicing with the Treasury Department. These regulations authorize the Presidio Trust to enter a cross-servicing agreement with the Treasury Department under which the Treasury Department will take authorized action to collect debts owed to the Presidio Trust.
§ 1011.3 Do these regulations adopt the Federal Claims Collections Standards?
This part adopts and incorporates all provisions of the FCCS. This part also supplements the FCCS by prescribing procedures consistent with the FCCS, as necessary and appropriate for Presidio Trust operations.
Subpart B—Procedures To Collect Presidio Trust Debts
§ 1011.4 What notice will the Presidio Trust send to a debtor when collecting a debt?
(a) Notice requirements. The Presidio Trust will aggressively collect debts. The Presidio Trust will send at least one written notice to a debtor informing the debtor of the consequences of failing to pay or otherwise resolve a debt. The notice(s) will be sent to the debtor’s most current address for the debtor in the records of the Presidio Trust. Except as otherwise provided in paragraph (b) of this section, the written notice(s) will explain to the debtor:
(1) The amount, nature and basis of the debt;
(2) How interest, penalty charges and administrative costs are added to the debt, the date by which payment should be made to avoid such charges, and that such assessments must be made unless waived (see § 1011.5 of this part);
(3) The date by which payment is due and that the debt will be considered delinquent if payment is not received by the Presidio Trust by the due date, which date will not be less than 30 days after the date of the notice, and the date by which payment must be received by the Presidio Trust to avoid the enforced collection actions described in paragraph (a)(6) of this section, which date will not be less than 60 days after the date of the notice;
(4) How the debtor may enter into a written agreement to repay the debt voluntarily under terms acceptable to the Presidio Trust (see § 1011.6 of this part);
(5) The name, address and telephone number of a contact person within the Presidio Trust;
(6) The Presidio Trust’s intention to enforce collection if the debtor fails to pay or otherwise resolve the debt, by taking one or more of the following actions:
(i) Use administrative offset or other offset to offset the debtor’s federal payments, including, without limitation, income tax refunds, salary, certain benefit payments (such as Social Security), retirement, vendor, travel reimbursements and advances, and other federal payments (see § 1011.10 through 1011.12 of this part);
(ii) Refer the debt to a private collection agency (see § 1011.15 of this part);
(iii) Report the debt to a credit bureau (see § 1011.14 of this part);
(iv) Garnish the debtor’s wages through administrative wage garnishment (see § 1011.13 of this part);
(v) Refer the debt to the Department of Justice to initiate litigation to collect the debt (see § 1011.16 of this part);
(vi) Refer the debt to the FMS for collection (see § 1011.9 of this part);
(7) The following timelines for the referral of a delinquent debt to the FMS:
(i) That debts over 120 days delinquent and eligible for the centralized administrative offset collection actions described in paragraph (a)(6)(i) of this section must be referred to the FMS for collection (see §§ 1011.10 through 1011.12);
(ii) That debts over 180 days delinquent not previously referred to the FMS under paragraph (a)(7)(i) of this section must be referred to the FMS for cross servicing debt collection (see § 1011.9).
(8) How the debtor may inspect and obtain copies of disclosable records related to the debt;
(9) How the debtor may request a review of the Presidio Trust’s determination that the debtor owes a debt.
(10) How a debtor may request a hearing if the Presidio Trust intends to garnish the debtor’s non-Federal wages (see § 1011.13(a) of this part), including:
(i) The method and time period for requesting a hearing;
(ii) That the timely filing of a request for a hearing on or before the 15th business day following the date of the notice will stay the commencement of administrative wage garnishment, but not necessarily other collection procedures; and
(iii) The name and address of the office to which the request for a hearing should be sent.
(11) How a debtor who is a Federal employee subject to Federal salary offset may request a hearing (see § 1011.12(e) of this part), including:
(i) The method and time period for requesting a hearing;
(ii) That the timely filing of a request for a hearing on or before the 15th business day following the date of the notice will stay the commencement of salary offset, but not necessarily other collection procedures;
(iii) The name and address of the office to which the request for a hearing should be sent;
(iv) That the Presidio Trust will refer the debt to the debtor’s employing agency or to the FMS to implement salary offset, unless the employee files a timely request for a hearing;
(v) That a final decision on the hearing, if requested, will be issued at the earliest practical date, but not later than 60 days after the filing of the request for a hearing, unless the employee requests and the hearing official grants a delay in the proceedings;
(vi) That any knowingly false or frivolous statements, representations or evidence may subject the Federal employee to penalties under the False Claims Act (31 U.S.C. 3729-3731) or other applicable statutory authority, and criminal penalties under 18 U.S.C. 286, 287, 1001, and 1002, or other applicable statutory authority;
(vii) That unless prohibited by contract or statute, amounts paid on or deducted for the debt which are later waived or found not owed to the United States will be promptly refunded to the employee; and
(viii) That proceedings with respect to such debt are governed by 5 U.S.C. 5514 and 31 U.S.C. 3716;
(12) That the debtor may request a waiver of the debt;
(13) That the debtor’s spouse may claim the spouse’s share of a joint income tax refund by filing Form 8379 with the IRS;
(14) That the debtor may exercise other statutory or regulatory rights and remedies available to the debtor;
(15) That the Presidio Trust may suspend or revoke any licenses, permits, leases, privileges or services for failure to pay a debt (see § 1011.17 of this part); and
(16) That the debtor should advise the Presidio Trust of a bankruptcy proceeding of the debtor or another person liable for the debt being collected.
(b) Exceptions to notice requirements. The Presidio Trust may omit from a notice to a debtor one or more of the provisions contained in paragraphs (a)(6) through (a)(16) of this section if the Presidio Trust, in consultation with its General Counsel, determines that any provision is not legally required given the collection remedies to be applied to a particular debt.
(c) Respond to debtors. The Presidio Trust will respond promptly to communications from debtors.
§ 1011.5 What interest, penalty charges and administrative costs will the Presidio Trust add to a debt?
(a) Interest. (1) The Presidio Trust will assess interest on all delinquent debts unless prohibited by statute, regulation or contract.
(2) Interest begins to accrue on all debts from the date the debt becomes delinquent. The Presidio Trust will waive collection of interest on that portion of the debt that is paid within 30 days after the date on which interest begins to accrue. The Presidio Trust will assess interest at the rate established by the Treasury Department under 31 U.S.C. 3717, unless a different rate is established by a contract, repayment agreement or statute. The Presidio Trust will notify the debtor of the basis for the interest rate assessed.
(b) Penalty. The Presidio Trust will assess a penalty of not more than 6% a year, or such other higher rate as authorized by law, on any portion of a debt that is delinquent for more than 90 days.
(c) Administrative costs. The Presidio Trust will assess charges to cover administrative costs incurred as a result of the debtor’s failure to pay a debt. The Presidio Trust will waive collection of administrative costs on that portion of the debt that is paid within 30 days after the date on which the administrative costs begin to accrue. Administrative costs include the costs of processing and handling a debt, obtaining a credit report, using a private collection contractor, costs of a hearing including, the costs of a hearing officer, and service fees charged by a Federal agency for collection activities undertaken on behalf of the Presidio Trust.
(d) Allocation of payments. A partial or installment payment by a debtor will be applied first to outstanding penalty assessments, second to administrative costs, third to accrued interest, and fourth to outstanding debt principal.
(e) Additional authority. The Presidio Trust may have additional policies, guidelines and procedures regarding how interest, penalties and administrative costs are assessed on particular types of debts. The Presidio Trust will explain in the notice to the debtor described in § 1011.4 of this part how interest, penalties, administrative costs and other charges are assessed, unless the requirements are included in a contract or repayment agreement.
(f) Waiver. (1) The Presidio Trust may waive collection of all or part of accrued interest, penalties and administrative costs when it would be against equity and good conscience or not in the Presidio Trust’s best interest to collect such charges.
(2) A decision to waive interest, penalties or administrative costs may be made at any time before a debt is paid. However, unless otherwise provided in these regulations, when these charges have been collected before the waiver decision, they will not be refunded.
(g) Accrual during suspension of debt collection. In most cases, interest, penalties and administrative costs will continue to accrue during any period when collection has been suspended for any reason (for example, when the debtor has requested a hearing). The Presidio Trust may suspend accrual of any or all of these charges when accrual would be against equity and good conscience or not in the Presidio Trust’s best interest.
§ 1011.6 When will the Presidio Trust allow a debtor to enter into a repayment agreement?
(a) Voluntary repayment. In response to a notice of a debt, the debtor may propose to the Presidio Trust the voluntary repayment of the debt in lieu of the Presidio Trust taking other collection actions under this part.
(b) Debtor’s request. The request from the debtor must:
(1) Be in writing;
(2) Admit the existence of the entire debt; and
(3) Either propose payment of the debt (together with interest, penalties and administrative costs) in a lump sum, or set forth a proposed repayment schedule.
(c) Repayment schedule. The Presidio Trust will collect debts in one lump sum whenever feasible. The Presidio Trust may accept payment in regular installments that bear a reasonable relationship to the size of the debt.
(d) Repayment agreement. The Presidio Trust will consider a request to enter into a voluntary repayment agreement in accordance with the FCCS. The Presidio Trust may request additional information from the debtor, including, without limitation, financial statements, in order to determine whether to enter into a voluntary repayment agreement. The Presidio Trust will set the necessary terms of any repayment agreement. No repayment agreement will be binding on the Presidio Trust unless it is in writing and signed by both the debtor and an authorized Presidio Trust representative. The Presidio Trust is not required to enter into a repayment agreement.
§ 1011.7 When will the Presidio Trust compromise a debt?
(a) Authority. The Presidio Trust may compromise a debt in accordance with the FCCS and such procedures as the Presidio Trust may adopt. (See § 1011.16 of this subpart).
(b) Report to IRS. The uncollected portion of a debt owed to the Presidio Trust that is not recovered as the result of a compromise will be reported to the IRS as income to the debtor in accordance with IRS and Presidio Trust procedures.
§ 1011.8 When will the Presidio Trust suspend or terminate debt collection on a debt?
If, after pursuing all appropriate means of collection, the Presidio Trust determines that a debt is uncollectible, the Presidio Trust may suspend or terminate debt collection activity in accordance with the FCCS and the Presidio Trust’s procedures.
§ 1011.9 When will the Presidio Trust transfer a debt to the Financial Management Service for collection?
(a) Cross-servicing. Unless a delinquent debt has previously been transferred to the FMS for administrative offset in accordance with § 1011.10, the Presidio Trust will transfer any eligible debt that is more than 180 days delinquent to the FMS for debt collection services, a process known as “cross-servicing.” The Presidio Trust may transfer debts delinquent 180 days or less to the FMS in accordance with the procedures described in 31 CFR 285.12. The FMS takes appropriate action to collect or compromise the transferred debt, or to suspend or terminate collection action thereon, in accordance with the statutory and regulatory requirements and authorities applicable to the debt and the collection action to be taken. Appropriate action includes, without limitation, contact with the debtor, referral of the debt to the Treasury Offset Program, private collection agencies or the Department of Justice, reporting of the debt to credit bureaus, and administrative wage garnishment.
(b) Notice; certification. At least 60 days prior to transferring a debt to the FMS, the Presidio Trust will send notice to the debtor as required by § 1011.4 of this part. The Presidio Trust will certify to the FMS, in writing, that the debt is valid, delinquent, legally enforceable and that there are no legal bars to collection. In addition, the Presidio Trust will certify its compliance with all applicable due process and other requirements as described in this part and other Federal laws.
(c) Treasury Offset Program. As part of its debt collection process, the FMS uses the Treasury Offset Program to collect debts by administrative and tax refund offset. The Treasury Offset Program is a centralized offset program administered by the FMS to collect delinquent debts owed to Federal agencies and states (including past-due child support). Under the Treasury Offset Program, before a federal payment is disbursed, the FMS compares the name and taxpayer identification number (TIN) of the payee with the names and TINs of debtors that have been submitted by Federal agencies and states to the Treasury Offset Program database. If there is a match, the FMS (or, in some cases, another Federal disbursing agency) offsets all or a portion of the federal payment, disburses any remaining payment to the payee, and pays the offset amount to the creditor agency. Federal payments eligible for offset include, without limitation, income tax refunds, salary, travel advances and reimbursements, retirement and vendor payments, and Social Security and other benefit payments.
§ 1011.10 How will the Presidio Trust use administrative offset (offset of non-tax federal payments) to collect a debt?
(a) Centralized administrative offset through the Treasury Offset Program. (1) The Presidio Trust will refer any eligible debt over 120 days delinquent to the Treasury Offset Program for collection by centralized administrative offset. The Presidio Trust may refer any eligible debt less than 120 days delinquent to the Treasury Offset Program for offset.
(2) At least 60 days prior to referring a debt to the Treasury Offset Program, in accordance with paragraph (a)(1) of this section, the Presidio Trust will send notice to the debtor in accordance with the requirements of § 1011.4 of this part. The Presidio Trust will certify to the FMS, in writing, that the debt is valid, delinquent, legally enforceable and that there are no legal bars to collection by offset. In addition, the Presidio Trust will certify its compliance with the due process requirements under 31 U.S.C. 3716(a) and with the requirements described in this part.
(b) Non-centralized administrative offset for a debt. (1) When centralized administrative offset through the Treasury Offset Program is not available or appropriate, the Presidio Trust may collect delinquent, legally enforceable debts through non-centralized administrative offset. In these cases, the Presidio Trust may offset a payment internally or make an offset request directly to a federal paying agency.
(2) At least 30 days prior to offsetting a payment internally or requesting a federal paying agency to offset a payment, the Presidio Trust will send notice to the debtor in accordance with the requirements of § 1011.4 of this part. When referring a debt for offset under this paragraph (b), the Presidio Trust will certify, in writing, that the debt is valid, delinquent, legally enforceable and that there are no legal bars to collection by offset. In addition, the Presidio Trust will certify its compliance with the due process requirements under 31 U.S.C. 3716(a) and with these regulations concerning administrative offset.
(c) Administrative review. The notice described in § 1011.4 of this part will explain to the debtor how to request an administrative review of the Presidio Trust determination that the debtor owes a debt and how to present evidence that the debt is not delinquent or legally enforceable. In addition to challenging the existence and amount of the debt, the debtor may seek a review of the terms of repayment. In most cases, the Presidio Trust will provide the debtor with a “paper hearing” based upon a review of the written record, including documentation provided by the debtor. The Presidio Trust will provide the debtor with a reasonable opportunity for an oral hearing when the debtor requests reconsideration of the debt and the Presidio Trust determines that the question of the indebtedness cannot be resolved by review of the documentary evidence, for example, when the validity of the debt turns on an issue of credibility or veracity. Unless otherwise required by law, an oral hearing under this section is not required to be a formal evidentiary hearing, although the Presidio Trust will document all significant matters presented at the hearing. The Presidio Trust may suspend collection through administrative offset and/or other collection actions pending the resolution of a debtor’s dispute. The Presidio Trust may establish policies, guidelines and procedures concerning the administrative review process consistent with the FCCS and the regulations in this section.
(d) Procedures for expedited offset. Under the circumstances described by the FCCS, the Presidio Trust may effect an offset against a payment to be made to the debtor prior to sending a notice to the debtor, as described in § 1011.4 of this part, or completing the procedures described in paragraph (b)(2) and (c) of this section. The Presidio Trust will give the debtor notice and an opportunity for review as soon as practicable and promptly refund any money ultimately found not to have been owed to the Government.
§ 1011.11 How will the Presidio Trust use tax refund offset to collect a debt?
(a) Tax refund offset. In most cases, the FMS uses the Treasury Offset Program to collect debts by the offset of tax refunds and other federal payments. See § 1011.9(c) of this part. If not already transferred to the FMS under § 1011.9 of this part, the Presidio Trust will refer to the Treasury Offset Program any delinquent, legally enforceable debt for collection by tax refund offset.
(b) Notice; certification. At least 60 days prior to referring a debt to the Treasury Offset Program, the Presidio Trust will send notice to the debtor in accordance with the requirements of § 1011.4 of this part. The Presidio Trust will certify to the FMS’s Treasury Offset Program, in writing, that the debt is delinquent and legally enforceable in the amount submitted and that the Presidio Trust has made reasonable efforts to obtain payment of the debt. In addition, the Presidio Trust will certify its compliance with all applicable due process and other requirements described in this part and other applicable law.
(c) Administrative review. The notice described in § 1011.4 of this part will provide the debtor with at least 60 days prior to the initiation of tax refund offset to request an administrative review as described in § 1011.10(c) of this part. The Presidio Trust may suspend collection through tax refund offset and/or other collection actions pending the resolution of the debtor’s dispute.
§ 1011.12 How will the Presidio Trust offset a Federal employee’s salary to collect a debt?
(a) Federal salary offset. (1) Salary offset is used to collect debts owed to the United States by Federal employees. If a Presidio Trust employee owes a debt, the Presidio Trust may offset the employee’s federal salary to collect the debt in the manner described in this section. For information on how a Federal agency other than the Presidio Trust may collect a debt from the salary of a Presidio Trust employee, see § 1011.21 and 1011.22, subpart C, of this part.
(2) Nothing in this part requires the Presidio Trust to collect a debt in accordance with the provisions of this section if Federal law allows otherwise.
(b) Centralized salary offset through the Treasury Offset Program. As described in § 1011.9(a) of this part, the Presidio Trust will refer debts to the FMS for collection by administrative offset, including salary offset, through the Treasury Offset Program.
(c) Non-centralized salary offset for Treasury debts. The Presidio Trust may collect delinquent debts through non-centralized salary offset. In these cases, the Presidio Trust may offset a payment internally or make a request directly to a paying agency to offset a salary payment to collect a delinquent debt owed by a Federal employee. At least 30 days prior to offsetting internally or requesting a Federal agency to offset a salary payment, the Presidio Trust will send notice to the debtor in accordance with the requirements of § 1011.4 of this part. When referring a debt for offset, the Presidio Trust will certify to the paying agency, in writing, that the debt is valid, delinquent and legally enforceable in the amount stated, and there are no legal bars to collection by salary offset. In addition, the Presidio Trust will certify that all due process and other prerequisites to salary offset have been met. See 5 U.S.C. 5514, 31 U.S.C. 3716(a), and this section for a description of the process for salary offset.
(d) When prior notice not required. The Presidio Trust is not required to provide prior notice to a Presidio Trust employee when the following adjustments are made:
(1) Any adjustment to pay arising out of a Presidio Trust employee’s election of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay, if the amount to be recovered was accumulated over four pay periods or fewer;
(2) A routine intra-agency adjustment of pay that is made to correct an overpayment of pay attributable to clerical or administrative errors or delays in processing pay documents, if the overpayment occurred within the four pay periods preceding the adjustment, and, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and point of contact for contesting such adjustment; or
(3) Any adjustment to collect a debt amounting to $50 or less, if, at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and a point of contact for contesting such adjustment.
(e) Hearing procedures. (1) Request for a hearing. A Presidio Trust employee who has received a notice that a debt will be collected by means of salary offset may request a hearing concerning the existence or amount of the debt. The employee also may request a hearing concerning the amount proposed to be deducted from the employee’s pay each pay period. The employee must send any request for hearing, in writing, to the office designated in the notice described in § 1011.4(a)(11). The request must be received by the designated office on or before the 15th business day following the employee’s receipt of the notice. The employee must sign the request and specify whether an oral or paper hearing is requested. If an oral hearing is requested, the employee must explain why the matter cannot be resolved by review of the documentary evidence alone.
(2) Failure to submit timely request for hearing. If the employee fails to submit a request for hearing within the time period described in paragraph (e)(1) of this section, the employee will have waived the right to a hearing, and salary offset may be initiated. However, the Presidio Trust may accept a late request for hearing if the employee can show that the late request was the result of circumstances beyond the employee’s control or because of a failure to receive actual notice of the filing deadline.
(3) Hearing official. The Presidio Trust hearing must be conducted by a hearing official who is not under the supervision or control of the Board of Directors of the Presidio Trust. The hearing official need not be an employee of the Federal Government.
(4) Notice of hearing. After the employee requests a hearing, a designated hearing official will inform the employee of the form of the hearing to be provided. For oral hearings, the notice will set forth the date, time and location of the hearing. For paper hearings, the notice will notify the employee of the date by which the employee should submit written arguments to the designated hearing official. The hearing official will give the employee reasonable time to submit documentation in support of the employee’s position. The hearing official will schedule a new hearing date if requested by both parties. The hearing official will give both parties reasonable notice of the time and place of a rescheduled hearing.
(5) Oral hearing. The hearing official will conduct an oral hearing if the official determines that the matter cannot be resolved by review of documentary evidence alone (for example, when an issue of credibility or veracity is involved). The hearing official will determine the procedure for the oral hearing, determining, for example, the hearing length.
(6) Paper hearing. If the hearing official determines that an oral hearing is not necessary, the official will make the determination based upon a review of the available written record, including any documentation submitted by the employee in support of the employee’s position.
(7) Date of decision. The hearing official will issue a written opinion setting forth the decision, based upon documentary evidence and information developed at the hearing, as soon as practicable after the hearing.
(8) Final agency action. The hearing official’s decision will be final.
(f) Salary offset process. (1) Determination of disposable pay. The Presidio Trust payroll office will determine the amount of the employee’s disposable pay (as defined in § 1011.1 of this part) and will implement salary offset.
(2) When salary offset begins. Deductions will begin within three official pay periods.
(3) Amount of salary offset. The amount to be offset from each salary payment will be up to 15% of the employee’s disposable pay, as follows:
(i) If the amount of the debt is equal to or less than 15% of the disposable pay, such debt generally will be collected in one lump sum payment;
(ii) Installment deductions will be made over a period of no greater than the anticipated period of employment. An installment deduction will not exceed 15% of the disposable pay from which the deduction is made unless the employee has agreed in writing to the deduction of a greater amount.
(4) Final salary payment. After the employee’s employment with the Presidio Trust ends, the Presidio Trust may make a lump sum deduction exceeding 15% of disposable pay from any final salary or other payments in order to satisfy a debt.
§ 1011.13 How will the Presidio Trust use administrative wage garnishment to collect a debt from a debtor’s wages?
(a) Authority and process. The Presidio Trust is authorized to collect debts from a debtor’s wages by means of administrative wage garnishment in accordance with the requirements of the FCCS and other applicable law. This part adopts and incorporates all of the provisions of 31 CFR 285.11 concerning administrative wage garnishment, including the hearing procedures described therein. The Presidio Trust may use administrative wage garnishment to collect a delinquent debt unless the debtor is making timely payments under an agreement to pay the debt in installments (see § 1011.6 of this part). At least 30 days prior to initiating an administrative wage garnishment, the Presidio Trust will send notice to the debtor in accordance with the requirements of § 1011.4 of this part, including the requirements of § 1011.4(a)(10) of this part. For debts referred to the FMS under § 1011.9 of this part, the Presidio Trust may authorize the FMS to send a notice informing the debtor that administrative wage garnishment will be initiated and how the debtor may request a hearing as described in § 1011.4(a)(10) of this part. If a debtor makes a timely request for a hearing, administrative wage garnishment will not begin until a hearing is held and a decision is sent to the debtor. If a debtor’s hearing request is not timely, the Presidio Trust may suspend collection by administrative wage garnishment. All travel expenses incurred by the debtor in connection with an in-person hearing will be borne by the debtor.
(b) Not applicable to federal salary offset. This section does not apply to federal salary offset, the process by which the Presidio Trust collects debts from the salaries of Federal employees (see § 1011.12 of this part).
§ 1011.14 How will the Presidio Trust report debts to credit bureaus?
The Presidio Trust will report delinquent debts to credit bureaus in accordance with the provisions of 31 U.S.C. 3711(e) and the FCCS. At least 60 days prior to reporting a delinquent debt to a consumer reporting agency, the Presidio Trust will send notice to the debtor in accordance with the requirements of § 1011.4 of this part. The Presidio Trust may authorize the FMS to report to credit bureaus those delinquent debts that have been transferred to the FMS under § 1011.9 of this part.
§ 1011.15 How will the Presidio Trust refer debts to private collection contractors?
The Presidio Trust will transfer delinquent debts to the FMS to obtain debt collection services provided by private collection contractors. See § 1011.9 of this part.
§ 1011.16 When will the Presidio Trust refer debts to the Department of Justice?
(a) Compromise or suspension or termination of collection activity. The Presidio Trust will refer debts having a principal balance over $100,000, or such higher amount as authorized by the Attorney General, to the Department of Justice for approval of any compromise of a debt or suspension or termination of collection activity. See the FCCS and § 1011.7 and 1011.8 of this part.
(b) Litigation. The Presidio Trust will promptly refer to the Department of Justice for litigation delinquent debts on which aggressive collection activity has been taken in accordance with this part that the Presidio Trust determines should not be compromised, and on which collection activity should not be suspended or terminated. The Presidio Trust may authorize the FMS to refer to the Department of Justice for litigation those delinquent debts that have been transferred to the FMS under § 1011.9 of this part.
§ 1011.17 Will a debtor who owes a debt be ineligible for Presidio Trust licenses, permits, leases, privileges or services?
Unless prohibited by law, the Presidio Trust may terminate, suspend or revoke licenses, permits, leases (subject to the terms of the leases), or other privileges or services for any inexcusable or willful failure of a debtor to pay a debt. The Presidio Trust may establish guidelines and procedures governing termination, suspension and revocation for delinquent debtors. If applicable, the Presidio Trust will advise the debtor in the notice required by § 1011.4 of this part of the Presidio Trust’s ability to suspend or revoke licenses, permits, leases, or privileges or services.
§ 1011.18 How does a debtor request a special review based on a change in circumstances such as catastrophic illness, divorce, death or disability?
(a) Material change in circumstances. A debtor who owes a debt may, at any time, request a special review by the Presidio Trust of the amount of any offset, administrative wage garnishment or voluntary payment, based on materially changed circumstances beyond the control of the debtor such as, without limitation, catastrophic illness, divorce, death or disability.
(b) Inability to pay. For purposes of this section, in determining whether an involuntary or voluntary payment would prevent the debtor from meeting essential subsistence expenses (costs incurred for food, housing, clothing, transportation and medical care), the debtor must submit a detailed statement and supporting documents for the debtor, the debtor’s, and dependents, indicating:
(1) Income from all sources;
(2) Assets;
(3) Liabilities;
(4) Number of dependents;
(5) Expenses for food, housing, clothing and transportation;
(6) Medical expenses; and
(7) Exceptional expenses, if any.
(c) Alternative payment arrangement. If the debtor requests a special review under this section, the debtor must submit an alternative proposed payment schedule and a statement to the Presidio Trust, with supporting documents, showing why the current offset, garnishment or repayment schedule imposes an extreme financial hardship on the debtor. The Presidio Trust will evaluate the statement and documentation and determine whether the current offset, garnishment or repayment schedule imposes extreme financial hardship on the debtor. The Presidio Trust will notify the debtor in writing of such determination, including, if appropriate, a revised offset, garnishment or payment schedule. If the special review results in a revised offset, garnishment or repayment schedule, the Presidio Trust will notify the appropriate agency or other persons about the new terms.
§ 1011.19 Will the Presidio Trust issue a refund if money is erroneously collected on a debt?
The Presidio Trust will promptly refund to a debtor any amount collected on a debt when the debt is waived or otherwise found not to be owed to the United States, or as otherwise required by law. Refunds under this part will not bear interest unless required by law.
§ 1011.20 Will the Presidio Trust’s failure to comply with these regulations be a defense to a debt?
No, the failure of the Presidio Trust to comply with any standard in the FCCS, these regulations or such other procedures of the Presidio Trust will not be available to any debtor as a defense.
Subpart C—Procedures for Offset of Presidio Trust Payments To Collect Debts Owed To Other Federal Agencies
§ 1011.21 How do other Federal agencies use the offset process to collect debts from payments issued by the Presidio Trust?
(a) Offset of Presidio Trust payments to collect debts owed to other Federal agencies. (1) In most cases, Federal agencies submit eligible debts to the Treasury Offset Program to collect delinquent debts from payments issued by other Federal agencies, a process known as “centralized offset.” When centralized offset is not available or appropriate, any Federal agency may ask the Presidio Trust (when acting as a paying agency) to collect a debt owed to such agency by offsetting funds payable to a debtor by the Presidio Trust, including salary payments issued to the Presidio Trust employees. This section and § 1011.22 of this subpart C apply when a Federal agency asks the Presidio Trust to offset a payment issued by the Presidio Trust to a person who owes a debt to the United States.
(2) This subpart C does not apply to the collection of debts through tax refund offset.
(b) Administrative offset (including salary offset); certification. The Presidio Trust will initiate a requested offset only upon receipt of written certification from the creditor agency that the debtor owes the delinquent, legally enforceable debt in the amount stated, and that the creditor agency has fully complied with all applicable due process and other requirements, and the creditor agency’s regulations, as applicable. Offsets will continue until the debt is paid in full or otherwise resolved to the satisfaction of the creditor agency.
(c) Where a creditor agency makes requests for offset. Requests for offset under this section must be sent to the Presidio Trust, ATTN: Chief Financial Officer, P.O. Box 29052, San Francisco, CA 94129-0052.
(d) Incomplete certification. The Presidio Trust will return an incomplete debt certification to the creditor agency with notice that the creditor agency must comply with paragraph (b) of this section before action will be taken to collect a debt from a payment issued by the Presidio Trust.
(e) Review. The Presidio Trust is not authorized to review the merits of the creditor agency’s determination with respect to the amount or validity of the debt certified by the creditor agency.
(f) When the Presidio Trust will not comply with offset request. The Presidio Trust will comply with the offset request of another agency unless the Presidio Trust determines that the offset would not be in the best interests of the United States, or would otherwise be contrary to law.
(g) Multiple debts. When two or more creditor agencies are seeking offsets from payments made to the same person, or when two or more debts are owed to a single creditor agency, the Presidio Trust may determine the order in which the debts will be collected or whether one or more debts should be collected by offset simultaneously.
(h) Priority of debts owed to the Presidio Trust. For purposes of this section, debts owed to the Presidio Trust generally take precedence over debts owed to other agencies. The Presidio Trust may determine whether to pay debts owed to other agencies before paying a debt owed to the Presidio Trust. The Presidio Trust will determine the order in which the debts will be collected based on the best interests of the United States.
§ 1011.22 What does the Presidio Trust do upon receipt of a request to offset the salary of a Presidio Trust employee to collect a debt owed by the employee to another Federal agency?
(a) Notice to the Presidio Trust employee. When the Presidio Trust receives proper certification of a debt owed by one of its employees, the Presidio Trust will begin deductions from the employee’s pay at the next officially established pay interval. The Presidio Trust will send a written notice to the employee indicating that a certified debt claim has been received from the creditor agency, the amount of the debt claimed to be owed to the creditor agency, the date deductions from salary will begin, and the amount of such deductions.
(b) Amount of deductions from a Presidio Trust employee’s salary. The amount deducted under § 1011.21(b) of this part will be the lesser of the amount of the debt certified by the creditor agency or an amount up to 15% of the debtor’s disposable pay. Deductions will continue until the Presidio Trust knows that the debt is paid in full or until otherwise instructed by the creditor agency. Alternatively, the amount offset may be an amount agreed upon, in writing, by the debtor and the creditor agency. See § 1011.12(g) (salary offset process).
(c) When the debtor is no longer employed by the Presidio Trust—(1) Offset of final and subsequent payments. If the Presidio Trust employee retires or resigns or if his or her employment ends before collection of the debt is complete, the Presidio Trust will continue to offset up to 100% of an employee’s subsequent payments until the debt is paid or otherwise resolved. Such payments include a debtor’s final salary payment, lump-sum leave payment, and other payments payable to the debtor by the Presidio Trust.
(2) Notice to the creditor agency. If the employee’s employment with the Presidio Trust terminates before the debt is paid in full, the Presidio Trust will certify to the creditor agency the total amount of its collection. If the Presidio Trust is aware that the employee is entitled to payments from the Civil Service Retirement and Disability Fund, Federal Employee Retirement System, or other similar payments, the Presidio Trust will provide written notice to the agency making such payments that the debtor owes a debt (including the amount) and that the provisions of 5 CFR 550.1109 have been fully complied with. The creditor agency is responsible for submitting a certified claim to the agency responsible for making such payments before collection may begin. Generally, creditor agencies will collect such monies through the Treasury Offset Program as described in § 1011.9(c) of this part.
(3) Notice to the debtor. The Presidio Trust will provide to the debtor a copy of any notices sent to the creditor agency under paragraph (c)(2) of this section.
(d) When the debtor transfers to another Federal agency—(1) Notice to the creditor agency. If the debtor transfers to another Federal agency before the debt is paid in full, the Presidio Trust will notify the creditor agency and will certify the total amount of its collection on the debt. The Presidio Trust will provide a copy of the certification to the creditor agency. The creditor agency is responsible for submitting a certified claim to the debtor’s new employing agency before collection may begin.
(2) Notice to the debtor. The Presidio Trust will provide to the debtor a copy of any notices and certifications sent to the creditor agency under paragraph (d)(1) of this section.
(e) Request for hearing official. The Presidio Trust will provide a hearing official upon the creditor agency’s request with respect to the Presidio Trust employee.
PART 1012—LEGAL PROCESS: TESTIMONY BY EMPLOYEES AND PRODUCTION OF RECORDS
General Information
§ 1012.1 What does this part cover?
(a) This part describes how the Presidio Trust responds to requests or subpoenas for:
(1) Testimony by employees in State, territorial or Tribal judicial, legislative or administrative proceedings concerning information acquired while performing official duties or because of an employee’s official status;
(2) Testimony by employees in Federal court civil proceedings in which the United States or the Presidio Trust is not a party concerning information acquired while performing official duties or because of an employee’s official status;
(3) Testimony by employees in any judicial or administrative proceeding in which the United States or the Presidio Trust, while not a party, has a direct and substantial interest;
(4) Official records or certification of such records for use in Federal, State, territorial or Tribal judicial, legislative or administrative proceedings.
(b) In this part, “employee” means a current or former Presidio Trust employee, or Board member, including a contractor or special government employee, except as the Presidio Trust may otherwise determine in a particular case.
(c) This part does not apply to:
(1) Congressional requests or subpoenas for testimony or records;
(2) Federal court civil proceedings in which the United States or the Presidio Trust is a party;
(3) Federal administrative proceedings;
(4) Federal, State and Tribal criminal court proceedings;
(5) Employees who voluntarily testify, while on their own time or in approved leave status, as private citizens as to facts or events that are not related to the official business of the Presidio Trust. The employee must state for the record that the testimony represents the employee’s own views and is not necessarily the official position of the Presidio Trust. See 5 CFR 2635.702(b), 2635.807(b).
(6) Testimony by employees as expert witnesses on subjects outside their official duties, except that they must obtain prior approval if required by § 1012.11.
(d) This part does not affect the rights of any individual or the procedures for obtaining records under the Freedom of Information Act (FOIA), Privacy Act, or statutes governing the certification of official records. The Presidio Trust FOIA and Privacy Act regulations are found at parts 1007 and 1008 of this chapter.
(e) Nothing in this part is intended to impede the appropriate disclosure under applicable laws of Presidio Trust information to Federal, State, territorial, Tribal, or foreign law enforcement, prosecutorial, or regulatory agencies.
(f) This part only provides guidance for the internal operations of the Presidio Trust, and neither creates nor is intended to create any enforceable right or benefit against the United States or the Presidio Trust.
§ 1012.2 What is the Presidio Trust’s policy on granting requests for employee testimony or Presidio Trust records?
(a) Except for proceedings covered by § 1012.1(c) and (d), it is the Presidio Trust’s general policy not to allow its employees to testify or to produce Presidio Trust records either upon request or by subpoena. However, if the party seeking such testimony or records requests in writing, the Presidio Trust will consider whether to allow testimony or production of records under this part. The Presidio Trust’s policy ensures the orderly execution of its mission and programs while not impeding any proceeding inappropriately.
(b) No Presidio Trust employee may testify or produce records in any proceeding to which this part applies unless authorized by the Presidio Trust under §§ 1012.1 through 1012.11. United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Responsibilities of Requesters
§ 1012.3 How can I obtain employee testimony or Presidio Trust records?
(a) To obtain employee testimony, you must submit:
(1) A written request (hereafter a “Touhy Request;” see § 1012.5 and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)); and
(2) A statement that you will submit a valid check for costs to the Presidio Trust, in accordance with § 1012.6, if your Touhy Request is granted.
(b) To obtain official Presidio Trust records, you must submit:
(1) A Touhy Request; and
(2) A statement that you agree to pay the costs of search and/or duplication in accordance with the provisions governing requests under the Freedom of Information Act in part 1007 of this chapter, if your Touhy Request is granted.
(c) You must send your Touhy Request to both:
(1) The employee; and
(2) The General Counsel of the Presidio Trust.
(d) The address of Presidio Trust employees and the General Counsel is: Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA 94129-0052.
§ 1012.4 If I serve a subpoena duces tecum, must I also submit a Touhy request?
Yes. If you serve a subpoena for employee testimony or if you serve a subpoena duces tecum for records in the possession of the Presidio Trust, you also must submit a Touhy Request.
§ 1012.5 What information must I put in my Touhy Request?
Your Touhy Request must:
(a) Identify the employee or record;
(b) Describe the relevance of the desired testimony or records to your proceeding and provide a copy of the pleadings underlying your request;
(c) Identify the parties to your proceeding and any known relationships they have with the Presidio Trust or to its mission or programs;
(d) Show that the desired testimony or records are not reasonably available from any other source;
(e) Show that no record could be provided and used in lieu of employee testimony;
(f) Provide the substance of the testimony expected of the employee; and
(g) Explain why you believe your Touhy Request meets the criteria specified in § 1012.9.
§ 1012.6 How much will I be charged?
We will charge you the costs, including travel expenses, for employees to testify under the relevant substantive and procedural laws and regulations. You must pay costs for record production in accordance with the provisions governing requests under the Freedom of Information Act in part 1007 of this chapter. Estimated Costs must be paid in advance by check or money order payable to the Presidio Trust. Upon determination of the precise costs, the Presidio Trust will either reimburse you for any overpayment, or charge you for any underpayment, which charges must be paid within 10 business days by check or money order payable to the Presidio Trust.
§ 1012.7 Can I get an authenticated copy of a Presidio Trust record?
Yes. We may provide an authenticated copy of a Presidio Trust record, for purposes of admissibility under Federal, State or Tribal law. We will do this only if the record has been officially released or would otherwise be released under parts 1007 or 1008 of this chapter, or this part.
Responsibilities of the Presidio Trust
§ 1012.8 How will the Presidio Trust process my Touhy Request?
(a) The Executive Director will decide whether to grant or deny your Touhy Request. The Presidio Trust’s General Counsel, or his or her agent, may negotiate with you or your attorney to refine or limit both the timing and content of your Touhy Request. When necessary, the General Counsel also will coordinate with the Department of Justice to file appropriate motions, including motions to remove the matter to Federal court, to quash, or to obtain a protective order.
(b) We will limit the Presidio Trust’s decision to allow employee testimony to the scope of your Touhy Request.
(c) If you fail to follow the requirements of this part, we will not allow the testimony or produce the records.
(d) If your Touhy Request is complete, we will consider the request under § 1012.9.
§ 1012.9 What criteria will the Presidio Trust consider in responding to my Touhy Request?
In deciding whether to grant your Touhy Request, the Executive Director will consider:
(a) Your ability to obtain the testimony or records from another source;
(b) The appropriateness of the employee testimony and record production under the relevant regulations of procedure and substantive law, including the FOIA or the Privacy Act; and
(c) The Presidio Trust’s ability to:
(1) Conduct its official business unimpeded;
(2) Maintain impartiality in conducting its business;
(3) Minimize the possibility that the Presidio Trust will become involved in issues that are not related to its mission or programs;
(4) Avoid spending public employees’ time for private purposes;
(5) Avoid any negative cumulative effect of granting similar requests;
(6) Ensure that privileged or protected matters remain confidential; and
(7) Avoid undue burden on the Presidio Trust.
Responsibilities of Employees
§ 1012.10 What must I, as an employee, do upon receiving a request?
(a) If you receive a request or subpoena that does not include a Touhy Request, you must immediately notify your supervisor and the Presidio Trust’s General Counsel for assistance in issuing the proper response.
(b) If you receive a Touhy Request, you must promptly notify your supervisor and forward the request to the General Counsel. After consulting with the General Counsel, the Executive Director will decide whether to grant the Touhy Request under § 1012.9.
(c) All decisions granting or denying a Touhy Request must be in writing. The Executive Director must ask the General Counsel for advice when preparing the decision.
(d) Under 28 U.S.C. 1733, Federal Rule of Civil Procedure 44(a)(1), or comparable State or Tribal law, a request for an authenticated copy of a Presidio Trust record may be granted by the person having the legal custody of the record. If you believe that you have custody of a record:
(1) Consult the General Counsel to determine if you can grant a request for authentication of records; and
(2) Consult the General Counsel concerning the proper form of the authentication (as authentication requirements may vary by jurisdiction).
§ 1012.11 Must I get approval before testifying as an expert witness other than on behalf of the United States in a Federal proceeding in which the United States is a party or has a direct and substantial interest?
(a) You must comply with 5 CFR 2635.805(c), which details the authorization procedure for an employee to testify as an expert witness, not on behalf of the United States, in any proceeding before a court or agency of the United States in which the United States is a party or has a direct and substantial interest. This procedure means:
(1) You must obtain the written approval of the Presidio Trust’s General Counsel;
(2) You must be in an approved leave status if you testify during duty hours; and
(3) You must state for the record that you are appearing as a private individual and that your testimony does not represent the official views of the Presidio Trust.
(b) If you testify as an expert witness on a matter outside the scope of your official duties, and which is not covered by paragraph (a) of this section, you must comply with 5 CFR 2635.802.
PARTS 1013-1099 [RESERVED]
CHAPTER XI—ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD
PARTS 1100-1119 [RESERVED]
PART 1120—PUBLIC AVAILABILITY OF INFORMATION
Subpart A—General
§ 1120.1 Purpose and scope of this part.
This part contains the general rules of the Architectural and Transportation Barriers Compliance Board for public access to Board records. These regulations implement 5 U.S.C. 552, the Freedom of Information Act, as amended, and the policy of the Board. It is the Board’s policy to disseminate information on matters of interest to the public and to disclose on request all information contained in records in its custody insofar as is compatible with the discharge of its responsibilities and consistent with the law. This part sets forth generally the categories of records accessible to the public, the types of records subject to prohibitions or restrictions on disclosure, and the places and procedures to obtain information from records in the custody of the A&TBCB.
§ 1120.2 Definitions.
For the purposes of this part:
(a) A&TBCB or Board means the Architectural and Transportation Barriers Compliance Board.
(b) A&TBCB record or record means any document, writing, photograph, sound or magnetic recording, drawing or other similar thing by which information has been preserved, from which the information can be retrieved and copied, and which is, was, or is alleged to be under the control of the A&TBCB.
(1) The term includes—
(i) Informal writings such as handwritten notes and drafts;
(ii) Information preserved in a form which must be translated or deciphered by machine in order to be intelligible to humans;
(iii) Records which were created or acquired by the A&TBCB, its members, its employees, its members’ employees, or persons acting on behalf of its members, by use of A&TBCB funds or in the course of transacting official business for the A&TBCB.
(2) The term does not include—
(i) Materials which are legally owned by an A&TBCB member, employee, or member’s employee or representative in his or her purely personal capacity; and
(ii) Materials published by non-Federal organizations which are readily available to the public, such as books, journals, standards, and periodicals available through reference libraries, even if such materials are in the A&TBCB’s possession.
(c) The terms agency, person, party, rule, rulemaking, order, and adjudication have the meanings given in 5 U.S.C. 551, except where the context demonstrates that a different meaning is intended, and except that for purposes of the Freedom of Information Act the term agency as defined in 5 U.S.C. 551 includes any executive department, military department, Government corporation, Government controlled corporation, the United States Postal Service, or other establishment in the executive branch of the Government (including the Executive Office of the President) or any independent regulatory agency.
(d) A government record under the control of the A&TBCB means that the record is subject to the free disposition of the A&TBCB. This includes keeping the record available for governmental use as required and protecting, preserving, and exercising such control over it as may be necessary for that purpose. Control of a record is not synonymous with, and does not require, actual physical possession of the record.
(e) Request means a request to inspect or obtain a copy of one or more records.
(f) Requestor means any person who submits a request to the A&TBCB.
(g) Public member means a member appointed by the President from among members of the general public.
(h) Direct Costs means those expenditures which an agency actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting the facility in which the records are stored.
(i) Search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents. Agencies should ensure that searching for material is done in the most efficient and least expensive manner so as to minimize costs for both the agency and the requester. For example, agencies should not engage in line-by-line search when merely duplicating an entire document would prove the less expensive and quicker method of complying with a request. Search should be distinguished, moreover, from review of material in order to determine whether the material is exempt from disclosure (see paragraph (k) of this section). Searches may be done manually or by computer using existing programming.
(j) Duplication refers to the process of making a copy of a document necessary to respond to an FOIA request. Such copies can take the form of paper copy, microform, audio-visual materials, or machine readable documentation (e.g., magnetic tape or disk), among others. The copy provided must be in a form that is reasonably usable by requesters.
(k) Review refers to the process of examining documents located in response to a request that is for a commercial use (see paragraph (l) of this section) to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(l) Commercial Use Request refers to a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, agencies must determine the use to which a requester will put the documents requested. Moreover, where an agency has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, agencies should seek additional clarification before assigning the request to a specific category.
(m) Educational Institution refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research.
(n) Non-Commercial Scientific Institution refers to an institution that is not operated on a commercial basis as that term is referenced in paragraph (l) of this section, and which is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry.
(o) Representative of the News Media refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term news means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of news) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive.
§ 1120.3 Existing records.
All existing A&TBCB records are subject to routine destruction according to standard record retention schedules.
Subpart B—Published Information
§ 1120.5 Information published in the Federal Register.
(a) General. In accordance with the provisions of 5 U.S.C. 552(a)(1), basic information concerning the organization, operations, functions, substantive and procedural rules and regulations, officials, office locations, and allocation of responsibilities for functions and programs of the A&TBCB is published in the
(1) Description of the A&TBCB’s organization and the established places at which, the employees from whom, and the methods whereby the public may obtain information, make submittals or requests, or obtain decisions;
(2) Statements of the general course and method by which the A&TBCB’s functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(3) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations;
(4) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the A&TBCB, and
(5) Each amendment, revision, or repeal of the foregoing. Indexes to the
(b) Code of Federal Regulations. Title 36 of the Code of Federal Regulations, which is republished and updated annually, contains a compilation of documents published by the A&TBCB in the
(c) Effect of nonpublication. Except to the extent that a person has actual and timely notice of its terms, no person may in any manner be required to resort to, or be adversely affected by, any procedure or matter required to be published in the
§ 1120.6 Information in A&TBCB publications.
(a) General. Copies of information material shall be available upon oral or written request so long as an adequate supply exists. These informational materials include press releases, pamphlets, and other materials ordinarily made available to the public without cost as part of a public information program, and reprints of individual parts of the Code of Federal Regulations or
(b) Published indexes. The informational publications available from the A&TBCB may include indexes to materials published or contained in its records. They will include the current indexes required by the Freedom of Information Act to be maintained and made available for inspecting and copying, except as otherwise provided by published order, as noted below. These indexes provide identifying information for the public as to—
(1) Final opinions and orders made in the adjudication of cases;
(2) Statements of policy and interpretations adopted but not published in the
(3) Administrative staff manuals and instructions to staff that affect a member of the public.
Subpart C—Records Available for Public Inspection and Copying, Documents Published and Indexed
§ 1120.11 Records available for inspection.
Except for those categories of materials listed in paragraph (a) of this section, paragraphs (a) (1) through (9) of § 1120.41 the following materials are available for public inspection and copying during normal business hours at the Washington office of the A&TBCB:
(a) Final opinions and orders made in the adjudication of cases;
(b) Statements of policy and interpretations which have been adopted under the authority of the A&TBCB and are not published in the
(c) Administrative staff manuals and instructions to staff that affect a member of the public;
(d) A record of the final votes of each member of the Board in every Board proceeding;
(e) Current indexes providing identifying information for the public as to the materials made available under paragraphs (a) through (d) of this section.
(f) All papers and documents made a part of the official record in administrative proceedings conducted by the A&TBCB in connection with the issuance, amendment, or revocation of rules and regulations or determinations having general applicability or legal effect with respect to members of the public or a class of the public.
(g) After a final order is issued in any adjudicative proceeding conducted by the A&TBCB, all papers and documents made a part of the official record of the proceeding. (The official docket is kept in the office of the administrative law judge hearing the case until a final order is issued.)
§ 1120.12 Indexes to certain records.
Current indexes are normally available to the public in published form as provided in § 1120.11. These indexes, whether or not published, are made available for inspection and copying on request. If published copies of a particular index are at any time not available or if publication of the index has been determined to be unnecessary and impracticable by order published in the
Any material listed in paragraph (a) of this section that is not indexed as required by § 1120.11(e) and § 1120.12, may not be cited, relied on, or used as precedent by the Board to adversely affect any member of the public unless the person against whom it is cited, relied on, or used has had actual and timely notice of the material.
Subpart D—Information Available Upon Request
§ 1120.21 Policy on disclosure of records.
(a) It is the policy of the A&TBCB to make information available to the public to the greatest extent possible in keeping with the spirit of the Freedom of Information Act. Therefore, all records of the A&TBCB, except those that the A&TBCB specifically determines must not be disclosed in the national interest, for the protection of private rights, or for the efficient conduct of public business to the extent permitted by the Freedom of Information Act, are declared to be available for public inspection and copying as provided in this part. Each member and employee of the A&TBCB is directed to cooperate to this end and to make records available to the public promptly and to the fullest extent consistent with this policy. A record may not be withheld from the public solely because its release might suggest administrative error or embarrass a member or employee of the A&TBCB.
(b) Subject to § 1120.51, any nonexempt A&TBCB record is available to the public upon request regardless of whether the requestor shows any justification or need for the record.
(c) An A&TBCB office may waive the procedures on this subpart in favor of the requestor, for reasons of the public interest, simplicity, or speed.
(d) If a requested record contains both exempt and nonexempt material, the nonexempt material shall be disclosed, after the exempt material has been deleted in accordance with § 1120.42.
§ 1120.22 Requests to which this subpart applies.
(a) This subpart applies to any written request (other than a request made by another Federal agency) received by the A&TBCB, whether or not the request cites the Freedom of Information Act, 5 U.S.C. 552, except with respect to records for which a less formal disclosure procedure is provided specifically in this part.
(b) Any written request to the A&TBCB for existing records prepared by the A&TBCB for routine public distribution, e.g., pamphlets, copies of speeches, press releases, and educational materials, shall be honored. No individual determination under § 1120.32 is necessary in these cases, since preparation of the materials for routine public distribution itself constitutes that a determination that the records are available to the public.
(c) This subpart applies only to records that exist at the time the request for information is made. (See § 1120.3, Existing records.)
§ 1120.23 Where requests for agency records must be filed.
A written request for records must be filed with the A&TBCB Freedom of Information Officer, Suite 501, 1111 18th Street NW., Washington, DC 20036. Requests may be mailed to that address or filed in person at that address during the A&TBCB’s normal business hours.
§ 1120.24 Misdirected written requests; oral requests.
(a) The A&TBCB cannot assure that a timely for satisfactory response under this subpart will be given to written requests that are addressed to A&TBCB offices, members, or employees other than the Freedom of Information Officer listed in § 1120.23. Any A&TBCB member or employee who receives a written request for inspection or disclosure of A&TBCB records must promptly forward a copy of the request to the Freedom of Information Officer, by the fastest practicable means, and must, if appropriate, commence action under § 1120.32.
(b) While A&TBCB members and employees will attempt in good faith to comply with oral requests for inspection or disclosure of A&TBCB records, by telephone or otherwise, these requests are not required to be processed in accordance with this subpart.
§ 1120.25 Form of requests.
A request must be in writing, must reasonably describe the records sought in a way that will permit their identification and location, and must be addressed to the address set forth in § 1120.23, but otherwise need not be in any particular form. Each request under the Freedom of Information Act should be clearly and prominently identified by a legend on the first page, such as “Freedom of Information Act Request.” The envelope in which the request is sent should be prominently marked with the letters “FOIA.” It is helpful, but not necessary, for the requestor to include his or her phone number and the reason for the request. A request may state the maximum amount of fees which the requester is willing to pay. Under § 1120.33(d), the failure to state willingness to pay fees as high as are anticipated by the A&TBCB will delay running of the time limit and delay processing of the request, if the responsible official anticipates that the fees chargeable may exceed $250.00.
§ 1120.26 Deficient descriptions.
(a) If the description of the records sought in the request is not sufficient to allow the A&TBCB to identify and locate the requested records, the office taking action under § 1120.32 must notify the requestor (by telephone when practicable) that the request cannot be further processed until additional information is furnished.
(b) The A&TBCB must make every reasonable effort to assist the requestor in formulating his or her request. If a request is described in general terms (e.g., all records having to do with a certain area), the A&TBCB office taking action under § 1120.32 may communicate with the requestor (by telephone when practicable) with a view toward reducing the administrative burden of processing a broad request and minimizing the fee payable by the requestor. Such attempts must not be used as a means to discourage requests, but rather as a means to help identify with more specificity the records actually sought.
§ 1120.31 A&TBCB receipt of requests; responsibilities of Freedom of Information Officer.
(a) Upon receipt of a written request, the Freedom of Information Officer must mark the request with the date of receipt and must attach to the request a control slip indicating the Request Identification Number and other pertinent administrative information. The Freedom of Information Officer must immediately forward the request and control slip to the A&TBCB office which the FOIA Officer believes to be responsible for maintaining the records requested. The Freedom of Information Officer must retain a full copy of the request and control slip and must monitor the handling of the request to ensure a timely response.
(b) The Freedom of Information Officer must maintain a file concerning each request received. The file must contain a copy of the request, initial and appeal determinations, and other pertinent correspondence and records.
(c) The Freedom of Information Officer must collect and maintain the information necessary to compile the reports required by 5 U.S.C. 552(d).
§ 1120.32 A&TBCB action on requests.
(a) The FOIA Officer is delegated the authority to issue initial determinations concerning records which he or she believes are in the custody of a Board member, an employee of a member’s agency, or an employee of a public member. When the FOIA Officer receives such a request, he or she shall forward it to the member, employee of a member agency, or employee of a public member whom the FOIA Officer believes to have custody of the records, requesting the records. The person to whom the request is forwarded shall, within three days of receipt of the FOIA Officer’s request, either furnish the records requested to the FOIA Officer or inform the FOIA Officer of the time when they will be furnished. The FOIA Officer shall then determine whether or not to disclose the documents. For purposes of such requests and their processing under this subpart, the FOIA Officer is considered the office handling the requests.
(b) Heads of staff offices are delegated the authority to issue initial determinations, other records which are in their respective custody.
(c) Whenever an A&TBCB office receives a request forwarded by the FOIA Officer, the office should:
(1) Take action under § 1120.26, if required, to obtain a better description of the records requested;
(2) Locate the records as promptly as possible, or determine that:
(i) The records are not known to exist; or
(ii) They are located at another A&TBCB office; or
(iii) They are located at another Federal agency and not possessed by the A&TBCB.
(3) When appropriate, take action under § 1120.53(b) to obtain payment or assurance of payment;
(4) Determine which of the requested records legally must be withheld, and why (see § 1120.42(b), Release of exempt documents);
(5) Of the requested records which are exempt from mandatory disclosure but which legally may be disclosed (see § 1120.42(a)), determine which records will be withheld, and why;
(6) Issue an initial determination within the allowed period (see § 1120.31), specifying (individually or by category) which records will be disclosed and which will be withheld, and signed by a person authorized to issue the determination under paragraph (a) of this section (see § 1120.33, Initial denials of requests);
(7) Furnish the Freedom of Information Officer a copy of the determination; and
(8) If the determination denies a request, furnish the Freedom of Information Officer the name of the A&TBCB member(s) or employee(s) having custody of the records and maintain the records in a manner permitting their prompt forwarding to the General Counsel upon request if an appeal from the initial denial is filed. (See also § 1120.34.)
(d) If it appears that some or all of the requested records are not in the possession of the A&TBCB office which has been assigned responsibility for responding to the request but may be in the possession of some A&TBCB office, the responding office must so inform the Freedom of Information officer immediately.
(e) An initial determination to disclose documents must provide the requested documents or provide the opportunity to inspect and/or obtain copies of the documents.
§ 1120.33 Time allowed for initial action on requests.
(a) Except as otherwise provided in this section, as soon as possible and not later than the tenth working day after the day on which the Freedom of Information Officer receives a request for records, the A&TBCB office responsible for responding to the request must issue a written determination to the requestor stating which of the requested records, will, and which will not, be released and the reason for any denial of a request.
(b) The period of 10 working days is measured from the date the request is first received and logged in by the Freedom of Information Officer.
(c) There is excluded from the period of 10 working days (or any extension) any time which elapses between the date that a requestor is notified by the A&TBCB under § 1120.26 that his or her request does not reasonably identify the records sought, and the date that the requestor furnishes a reasonable identification.
(d) There is excluded from the period of 10 working days (or any extension) any time which elapses between the date that a requestor is notified by an A&TBCB office under § 1120.53(b) that prepayment of fees is required, and the date that the requestor pays (or makes suitable arrangements to pay) the charges.
(e) The A&TBCB office taking action under § 1120.31 may extend the basic 10-day period established under paragraph (a) of this section by a period not to exceed 10 additional working days if—
(1) The office notifies the Freedom of Information Officer;
(2) The office notifies the requestor in writing within the basic 10-day period stating the reasons for the extension and the date by which the office expects to be able to issue a determination;
(3) The extension is reasonably necessary to properly process the particular request; and
(4) One or more of the following unusual circumstances require the extension:
(i) There is a need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(ii) There is a need to search for, collect, and/or appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(iii) There is need for consultation with another agency having a substantial interest in the determination of the request or among two or more components of the A&TBCB. The office must conduct the consultation with all practicable speed.
(f) Should the A&TBCB fail to issue a determination within the 10-day period or any authorized extension as to an initial request, or during the period for consideration of an appeal, the requestor shall be deemed to have exhausted his or her administrative remedies with respect to such.
§ 1120.34 Initial denials of requests.
(a) An initial denial of a request may be issued only for the following reasons:
(1) The record is not under the A&TBCB’s control;
(2) The record has been published in the
(3) A statutory provision, provision of this part, or court order requires that the information not be disclosed;
(4) The record is exempt from mandatory disclosure under 5 U.S.C. 552(b) and the responding office has decided not to disclose it under §§ 1120.41 and 1120.42;
(5) The record is believed to be in the A&TBCB’s custody but has not yet been located. (See paragraph (f) of this section.)
(b) Each initial denial of a request shall—
(1) Be written, signed, and dated;
(2) Contain a reference to the Request Identification Number;
(3) Identify the records that are being withheld (individually or, if the denial covers a large number of similar records, by described category); and
(4) State the basis for denial of each record of category of records or any reasonably segregable portion(s) thereof being withheld.
(c) If the issuance of the determination to deny a request was directed by some A&TBCB officer or employee other than the person signing the determination letter, that other person’s identity and position must be stated in the determination letter.
(d) Each initial determination which denies, in whole or in part, a request for one or more existing, located A&TBCB records must state that the requestor may appeal the initial denial by sending a written appeal to the address shown in § 1120.23 within 30 days of receipt of the determination. (See § 1120.36.)
(e) A determination is deemed issued on the date the determination letter is placed in A&TBCB mailing channels for first class mailing to the requestor, delivered to the U.S. Postal Service for mailing, or personally delivered to the requestor, whichever date first occurs.
(f) When a request must be denied because the record has not yet been located (although it is believed to be in the A&TBCB’s possession), the A&TBCB office responsible for maintaining the record must continue to search diligently until it is located or it appears that the record does not exist or is not in the A&TBCB’s possession, and must periodically inform the requestor of the office’s progress.
§ 1120.36 Appeals from initial denials.
(a) Any person whose request has been denied in whole or in part by an initial determination may appeal that denial by addressing a written appeal to the address shown in § 1120.23.
(b) Any appeal must be mailed or filed in person at the address shown in § 1120.23—
(1) In the case of a denial of an entire request, generally not later than 30 calendar days after the date the requestor received the initial determination on the request; or
(2) In the case of a partial denial, generally not later than 30 calendar days after the requestor receives all records being made available pursuant to the initial determination.
(c) The appeal letter must contain—
(1) A reference to the Request Identification Number (RIN);
(2) The date of the initial determination;
(3) The name and address of the person who issued the initial denial;
(4) A statement of which of the records to which access was denied are the subjects of the appeal; and
(5) If the applicant wishes, such facts and legal or other authorities as he or she considers appropriate.
§ 1120.37 A&TBCB action on appeals.
(a) The General Counsel must make one of the following legal determinations in connection with every appeal from the initial denial of a request for an existing, located record:
(1) The record must be disclosed;
(2) The record must not be disclosed because a statute or a provision of this part so requires; or
(3) The record is exempt from mandatory disclosure but legally may be disclosed as a matter of agency discretion.
(b) Whenever the General Counsel has determined under paragraph (a)(3) of this section that a record is exempt from mandatory disclosure but legally may be disclosed, the matter must be referred to the Executive Director. If the Executive Director determines that an important purpose would be served by withholding the record, the General Counsel shall issue a determination denying the appeal. If the Executive Director determines that no important purpose would be served by withholding the record, the General Counsel must disclose the record.
(c) The General Counsel may delegate his or her authority under this section to any other attorney employed by the A&TBCB in connection with any cateogory of appeals or any individual appeals.
(d) A determination denying an appeal from an initial denial must—
(1) Be in writing;
(2) State which of the exemptions in 5 U.S.C. 552(b) apply to each requested existing record;
(3) State the reason(s) for denial of the appeal;
(4) State the name and position of each A&TBCB officer or employee who directed that the appeal be denied; and
(5) State that the person whose request was denied may obtain de novo judicial review of the denial by complaint filed with the district court of the United States in the district in which the complainant resides, or in which the agency records are situated, or in the District of Columbia, pursuant to 5 U.S.C. 552(a)(4).
§ 1120.38 Time allowed for action on appeals.
(a) Except as otherwise provided in this section, as soon as possible and not later than the twentieth working day after the day on which the Freedom of Information Officer receives an appeal from an initial denial of a request for records, the General Counsel shall issue a written determination stating which of the requested records (as to which appeal was made) will and which will not be disclosed.
(b) The period of 20 working days shall be measured from the date an appeal is first received by the Freedom of Information Officer.
(c) The General Counsel may extend the basic 20-day period established under paragraph (a) of this section by a period not to exceed 10 additional working days if—
(1) He or she notifies the Freedom of Information Officer;
(2) He or she notifies the requestor in writing within the basic 20-day period stating the reasons for the extension and the date by which he or she expects to be able to issue a determination;
(3) The extension is reasonably necessary to properly process the particular request; and
(4) One or more of the following unusual circumstances require the extension:
(i) There is a need to search for and collect the records from field facilities or other establishments that are separated from the office processing the appeal;
(ii) There is a need to search for, collect, and/or appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(iii) There is a need for consultation with another agency or among two or more components of the A&TBCB. The General Counsel must conduct the consultation with all practicable speed.
(d) No extension of the 20-day period may be issued under paragraph (c) of this section which would cause the total of all such extensions and of any extensions issued under § 1120.33(c) to exceed 10 working days.
§ 1120.41 Exempt documents.
(a) Generally, 5 U.S.C. 552(b) establishes nine exclusive categories of matters which are exempt from the mandatory disclosure requirements of 5 U.S.C. 552(a). No request under 5 U.S.C. 552 for an existing, located, unpublished record in the A&TBCB’s control may be denied by any A&TBCB office or employee unless the record contains (or its disclosure would reveal) matters that are—
(1) Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and which are in fact properly classified pursuant to the Executive order;
(2) Related solely to the internal personnel rules and practices of an agency;
(3) Specifically exempted from disclosure by statute;
(4) Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(5) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) Investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would—
(i) Interfere with enforcement proceedings;
(ii) Deprive a person of a right to a fair trial or an impartial adjudication;
(iii) Constitute an unwarranted invasion of personal privacy;
(iv) Disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source;
(v) Disclose investigative techniques and procedures; or
(vi) Endanger the life or physical safety of law enforcement personnel;
(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(9) Geological and geophysical information and data, including maps, concerning wells.
(b) The fact that the applicability of an exemption permits the withholding of a requested record (or portion of a record) does not necessarily mean that the record must or should be withheld. (See § 1120.42 Release of exempt documents.)
§ 1120.42 Release of exempt documents.
(a) An A&TBCB office may, in its discretion, release requested records despite the applicability of one or more of the exemptions listed in § 1120.41 (a)(2), (5), or (7). Disclosure of such records is encouraged if no important purpose would be served by withholding the records.
(b) Though the policy of the A&TBCB is to honor all requests, as indicated in § 1120.21(a), there are circumstances when the A&TBCB will not disclose a record if one or more of the FOIA exemptions applies to the record. The exemptions usually in such circumstances are exemptions (2), (3), (4), (6), (8) and (9). In these cases, where the A&TBCB has withheld a requested record, or portions thereof, the A&TBCB will disclose the exempted record when ordered to do so by a Federal court or in exceptional circumstances under appropriate restrictions with the approval of the Office of General Counsel.
Subpart E—Copies of Records and Fees for Services
§ 1120.51 Charges for services, generally.
(a) It shall be the policy of the ATBCB to comply with requests for documents made under the FOIA using the most efficient and least costly methods available. Requesters will be charged fees, in accordance with the administrative provisions and fee schedule set forth below, for searching for, reviewing (in the case of commercial use requesters only), and duplicating requested records.
(b) Categories of requesters. For the purpose of standard FOIA fee assessment, the four categories of requesters are: Commercial use requesters; educational and non-commercial scientific institution requesters; requesters who are representatives of the news media; and, all other requesters (see § 1120.2 (l) through (o), Definitions).
(c) Levels of fees. Levels of fees prescribed for each category of requester are as follows:
(1) Commercial Use Requesters—When the ATBCB receives a request for documents which appears to be a request for commercial use, the Board may assess charges in accordance with the fee schedule set forth below, which recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Costs for time spent reviewing records to determine whether they are exempt from mandatory disclosure applies to the initial review only. No fees will be assessed for reviewing records, at the administrative appeal level, of the exemptions already applied.
(2) Educational and Non-Commercial Scientific Institution Requesters—The ATBCB shall provide documents to requesters in this category for the cost of reproduction alone, in accordance with the fee schedule set forth below, excluding charges for the first 100 pages of reproduced documents.
(i) To be eligible for inclusion in this category, requesters must demonstrate the request is being made under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (it the request is from a non-commercial scientific institution) research.
(ii) Requesters eligible for free search must reasonably describe the records sought.
(3) Requesters Who Are Representatives of the News Media—The ATBCB shall provide documents to requesters in this category for the cost of reproduction alone, in accordance with the fee schedule set forth below, excluding charges for the first 100 pages of reproduced documents.
(4) All Other Requestors—The ATBCB shall charge requestors who do not fit into any of the categories described above, fees which recover the full direct cost of searching for and reproducing records that are responsive to the request, except that the first two hours of search time and the first 100 pages of reproduction shall be furnished without charge.
(d) Schedule of FOIA fees.
(1) Record search (ATBCB employees)—$14.00 per hour
(2) Document review (ATBCB employees)—$20.00 per hour
(3) Duplication of documents (paper copy of paper original)—$.20 per page
(e) No charge shall be made:
(1) If the costs of routine collection and processing of the fee are likely to equal or exceed the amount of the fee;
(2) For any request made by an individual or group of individuals falling into the categories listed at paragraph (b) of this section, and described in paragraph (c) of this section, (excepting commercial use requests) the first two hours of search time and first 100 pages of duplication;
(3) For the cost of preparing or reviewing letters of response to a request or appeal;
(4) For responding to a request for one copy of the official personnel record of the requestor;
(5) For furnishing records requested by either House of Congress, or by duly authorized committee or subcommittee or Congress, unless the records are requested for the benefit of an individual Member of Congress or for a constituent;
(6) For furnishing records requested by and for the official use of other Federal agencies; or
(7) For furnishing records needed by an A&TBCB contractor or grantee to perform the work required by the A&TBCB contract or grant.
(f) Requestors may be charged for unsuccessful or unproductive searches or for searches when records located are determined to be exempt from disclosure.
(g) Where the ATBCB reasonably believes that a requestor or group of requestors is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the ATBCB shall aggregate any such requests and charge accordingly.
§ 1120.52 Computerized records.
(a) Information available in whole or in part in computerized form which is disclosable under the Freedom of Information Act is available to the public as follows:
(1) When there is an existing printout from the computer which permits copying the printout, the material will be made available at the per page rate stated in § 1120.51(a) for each 8
(2) When there is not an existing printout of information disclosable under the Freedom of Information Act, a printout shall be made if the applicant pays the cost to the A&TBCB as stated in paragraph (a)(3) of this section.
(3) Obtaining information from computerized records frequently involves a minimum computer time cost of approximately $100 per request. Multiple requests involving the same subject may cost less per request. Services of personnel in the nature of a search shall be charged for at rates prescribed in § 1120.51(a). A charge shall be made for the computer time involved based upon the prevailing level of costs to Government organizations and upon the particular types of computer and associated equipment and the amounts of time on such equipment that are utilized. A charge shall also be made for any substantial amounts of special supplies or materials used to contain, present, or make available the output of computers based upon the prevailing levels of costs to Government organizations and upon the type and amount of the supplies and materials that are used.
(b) Information in the Board’s computerized records which could be produced only by additional programming of the computer, thus producing information not previously in being, is not required to be furnished under the Freedom of Information Act. In view of the usually heavy workloads of the computers used by the Board, such a service cannot ordinarily be offered to the public.
§ 1120.53 Payment of fees.
(a) Method of payment. All fee payments shall be in the form of a check or money order payable to the order of the “U.S. Architectural and Transportation Barriers Compliance Board” and shall be sent (accompanied by a reference to the pertinent Request Indentification Number(s)) to the address in § 1120.23.
(b) Charging interest. The ATBCB may charge interest to those requestors failing to pay fees assessed in accordance with the procedures described in § 1120.51. Interest charges, computed at the rate prescribed in section 3717 of title 31 U.S.C.A., will be assessed on the full amount billed starting on the 31st day following the day on which the bill was sent.
(c) Advance payment or assurance of payment. (1) When an ATBCB office determines or estimates that the allowable charges a requestor may be required to pay are likely to exceed $250.00, the ATBCB may require the requestor to make an advance payment or arrangements to pay the entire fee before continuing to process the request. The ATBCB shall promptly inform the requestor (by telephone, if practicable) of the need to make an advance payment or arrangements to pay the fee. That office need not search for, review, duplicate, or disclose records in response to any request by that requestor until he or she pays, or makes acceptable arrangements to pay, the total amount of fees due (or estimated to become due) under this subpart.
(2) Where a requestor has previously failed to pay a fee charged in a timely fashion, the ATBCB may require the requestor to pay the full amount owed, plus any applicable interest, as provided in paragraph (b) of this section, and to make an advance payment of the full amount of the estimated fee before any new or pending requests will be processed from that requestor.
(3) In those instances described in paragraphs (c)(1) and (2) of this section, the administrative time limits prescribed in § 1120.33(d) will begin only after the ATBCB has received all fee payments due or acceptable arrangements have been made to pay all fee payments due.
(d) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). Requestors are advised that the ATBCB shall use the authorities of the Debt Collection Act of 1982, including disclosure to consumer reporting agencies and use of collection agencies, where appropriate, to encourage repayment of debts arising from freedom of information act requests.
(e) Waiver or reduction of fees. (1) Records responsive to a request under 5 U.S.C. 552 shall be furnished without charge or at a charge reduced below that establsihed under paragraph (d) of § 1120.51 where the Freedom of Information Officer determines, based upon information provided by a requestor in support of a fee waiver request or otherwise made known to the Freedom of Information Officer, that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor. Requests for a waiver or reduction of fees shall be considered on a case-by-case basis.
(2) In order to determine whether the first fee waiver requirement is met—i.e., that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government—Freedom of Information Officer shall consider the following four factors in sequence:
(i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the government.” The subject matter of the requested records, in the context of the request, must specifically concern identifiable operations or activities of the federal government—with a connection that is direct and clear, not remote or attenuated. Furthermore, the records must be sought for their informative value with respect to those government operations or activities; a request for access to records for their intrinsic informational content alone will not satisfy this threshold consideration.
(ii) The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute” to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative on specific government operations or activities in order to hold potential for contributing to increase public understanding of those operations and activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be likely to contribute to such understanding, as nothing new would be added to the public record.
(iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” The disclosure must contribute to the understanding of the public at large, as opposed to the individual understanding of the requestor or a narrow segment of interested persons. A requestor’s identity and qualifications—e.g., expertise in the subject area and ability and intention to effectively convey information to the general public—should be considered. It reasonably may be presumed that a representative of the news media (as defined in § 1120.2(o)) who has access to the means of public dissemination readily will be able to satisfy this consideration. Requests from libraries or other record repositories (or requestors who intend merely to disseminate information to such institutions) shall be analyzed, like those of other requestors to identify a particular person who represents that he actually will use the requested information in scholarly or other analytic work and then disseminate it to the general public.
(iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to public understanding of government operations or activities. The public’s understanding of the subject matter in question, as compared to the level of public understanding existing prior to the disclosure, must be likely to be enhanced by the disclosure to a significant extent. Freedom of Information Officer shall not make separate value judgments as to whether information, even though it in fact would contribute significantly to public understanding of the operations or activities of the government, is “important” enough to be made public.
(3) In order to determine whether the second fee waiver requirement is met—i.e., that disclosure of the requested information is not primarily in the commercial interest of the requestor—the Freedom of Information Officer shall consider the following two factors in sequence:
(i) The existence and magnitude of a commercial interest: Whether the requestor has a commercial interest that would be furthered by the requested disclosure. The Freedom of Information Officer shall consider all commercial interests of the requester (with reference to the definition of “commercial use” in § 1120.2(l)) or any person on whose behalf the requestor may be acting, but shall consider only those interests which would be furthered by the requested disclosure. In assessing the magnitude of identified commercial interests, consideration shall be given to the role that such FOIA-disclosed information plays with respect to those commercial interests, as well as to the extent to which FOIA disclosures serve those interests overall. Requestors shall be given a reasonable opportunity in the administrative process to provide information bearing upon this consideration.
(ii) The primary interest in disclosure: Whether the magnitude of the identified commercial interest of the requestor is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requestor.” A fee waiver or reduction is warranted only where, once the “public interest” standard set out in paragraph (e)(2) of this section is satisfied, that public interest can fairly be regarded as greater in magnitude than that of the requestor’s commercial interest in disclosure. The Freedom of Information Officer shall ordinarily presume that where a news media requestor has satisfied the “public interest” standard, that will be the interest primarily served by disclosure to that requestor. Disclosure to data brokers or others who compile and market government information for direct economic return shall not be presumed to primarily serve “public interest.”
(4) Where only a portion of the requested records satisfies both of the requirements for a waiver or reduction of fees under this paragraph, a waiver or reduction shall be granted only as to that portion.
(5) Requests for the waiver or reduction of fees shall address each of the factors listed in paragraphs (e) (2) and (3) of this section, as they apply to each record request. One hundred pages of reproduction shall be furnished without charge.
(6) A request for reduction or waiver of fees shall be addressed to the Freedom of Information Officer at the address shown in § 1120.23. The ATBCB office which is responding to the request for records shall initially determine whether the fee shall be reduced or waived and shall so inform the requestor. The initial determination may be appealed by letter addressed to the address shown in § 1120.23. The General Counsel or his or her designee shall decide such appeals.
PART 1121—PRIVACY ACT IMPLEMENTATION
§ 1121.1 Purpose and scope.
The purposes of these regulations are to:
(a) Establish a procedure by which an individual can determine if the Architectural and Transportation Barriers Compliance Board, hereafter known as the Board or ATBCB, maintains a system of records which includes a record pertaining to the individual; and
(b) Establish a procedure by which an individual can gain access to a record pertaining to him or her for the purpose of review, amendment and/or correction.
§ 1121.2 Definitions.
For the purpose of these regulations—
(a) The term individual means a citizen of the United States or an alien lawfully admitted for permanent residence.
(b) The term maintain includes maintain, collect, use or disseminate.
(c) The term record means any item, collection or grouping of information about an individual that is maintained by the Board, including, but not limited to, his or her employment history, payroll information, and financial transactions and that contains his or her name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as social security number.
(d) The term system of records means a group of any records under control of the Board from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.
(e) The term routine use means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.
(f) The term authorized representative means a person who acts on an individual’s behalf for purposes of these regulations, pursuant to written, signed instructions from the individual.
§ 1121.3 Procedures for requests pertaining to individuals’ records in a records system.
An individual or authorized representative shall submit a written request to the Administrative Officer to determine if a system of records named by the individual contains a record pertaining to the individual. The individual or authorized representative shall submit a written request to the Executive Director of the ATBCB which states the individual’s desire to review his or her record.
§ 1121.4 Times, places, and requirements for the identification of the individual making a request.
An individual or authorized representative making a request to the Administrative Officer of the ATBCB pursuant to § 1121.3 shall present the request at the ATBCB offices, 330 C Street, SW., Room 1010, Washington, DC 20202, on any business day between the hours of 9 a.m. and 5:30 p.m. The individual or authorized representative submitting the request should present himself or herself at the ATBCB’s offices with a form of identification which will permit the ATBCB to verify that the individual is the same individual as contained in the record requested. An authorized representative shall present a written document authorizing access. The document must be signed by the individual.
§ 1121.5 Access to requested information to the individual.
Upon verification of identity the Board shall disclose to the individual or authorized representative the information contained in the record which pertains to that individual. Nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.
§ 1121.6 Request for correction or amendment to the record.
The individual or authorized representative should submit a request to the Administrative Officer which states the individual’s desire to correct or to amend his or her record. This request is to be made in accord with provisions of § 1121.4.
§ 1121.7 Agency review of request for correction or amendment of the record.
Within ten working days of the receipt of the request to correct or to amend the record, the Administrative Officer will acknowledge in writing such receipt and promptly either—
(a) Make any correction or amendment of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or
(b) Inform the individual or authorized representative of his or her refusal to correct or to amend the record in accordance with the request, the reason for the refusal and the procedures established by the Board for the individual to request a review of that refusal.
§ 1121.8 Appeal of an initial adverse agency determination on correction or amendment of the record.
An individual who disagrees with the refusal of the Administrative Officer to correct or to amend his or her record may submit a request for a review of such refusal to the Executive Director, ATBCB, 330 C Street, SW., Room 1010, Washington, DC 20202. The Executive Director will, not later than thirty (30) working days from the date on which the individual requests such review, complete such review and make final determination, unless, for good cause shown, the Executive Director extends such thirty-day period. If, after his or her review, the Executive Director also refuses to correct or to amend the record in accordance with the request, the Board shall permit the individual or authorized representative to file with the Executive Director a concise statement setting forth the reasons for his or her disagreement with the refusal of the Executive Director and shall notify the individual or authorized representative that he or she may seek judicial review of the Executive Director’s determination under 5 U.S.C. 552a(g)(1)(A).
§ 1121.9 Notification of dispute.
In any disclosure pursuant to § 1121.10 containing information about which the individual has previously filed a statement of disagreement under § 1121.8, the Board shall clearly note any portion of the record which is disputed and provide copies of the statement and, if the Executive Director deems it appropriate, copies of a concise statement of the reasons of the Executive Director for not making the amendments requested.
§ 1121.10 Disclosure of record to a person other than the individual to whom the record pertains.
The Board will not disclose a record to any individual or agency other than the individual to whom the record pertains, except to an authorized representative, unless the disclosure has been listed as a “routine use” in the Board’s notices of its systems of records, or falls within one of the special disclosure situations listed in the Privacy Act of 1974 (5 U.S.C. 552a(b)).
§ 1121.11 Accounting of disclosures.
(a) The Board shall, except for disclosure made under sections (b)(1) and (b)(2) of the Privacy Act of 1974 (5 U.S.C. 552a) keep an accurate accounting of—
(1) The date, nature and purpose of each disclosure of a record to any person or another agency made pursuant to § 1121.10; and
(2) The name and address of the person or agency to whom the disclosure is made.
(b) This accounting shall be retained for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made;
(c) The Board shall make this accounting available to the individual named in the record at his or her request, except for disclosures made under section (b)(7) of the Privacy Act of 1974 (5 U.S.C. 552a).
(d) The Board shall inform any person or other agency to whom disclosure has been made pursuant to § 1121.10 about any correction or notation of dispute made by the Board.
§ 1121.12 Fees.
If an individual or authorized representative requests copies of his or her record, he or she shall be charged ten cents per page, excluding the cost of any search for review of the record, in advance of receipt of the pages.
PART 1150—PRACTICE AND PROCEDURES FOR COMPLIANCE HEARINGS
Subpart A—General Information
§ 1150.1 Purpose.
Purpose. The purpose of the regulations in this part is to implement section 502(b)(1) of the Rehabilitation Act of 1973, Pub. L. 93-112, 29 U.S.C. 792, as amended by the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, Pub. L. 95-602, section 118, 92 Stat. 2979, by establishing rules of procedure for public hearings which ensure compliance with standards issued under the Architectural Barriers Act of 1968, Pub. L. 90-480, as amended, 42 U.S.C. 4151 et seq. (including standards of the U.S. Postal Service).
§ 1150.2 Applicability: Buildings and facilities subject to guidelines and standards.
(a) Definitions. As used in this section, the term:
Constructed or altered on behalf of the United States means acquired by the United States through lease-purchase arrangement, constructed or altered for purchase by the United States, or constructed or altered for the use of the United States.
Primarily for use by able-bodied military personnel means expected to be occupied, used, or visited principally by military service personnel. Examples of buildings so intended are barracks, officers’ quarters, and closed messes.
Privately owned residential structure means a single or multi-family dwelling not owned by a unit or subunit of Federal, state, or local government.
(b) Buildings and facilities covered. Except as provided in paragraph (c) of this section, the standards issued under the Architectural Barriers Act of 1968, Pub. L. 90-480, as amended, 42 U.S.C. 4151 et seq. (including standards of the United States Postal Service) apply to any building or facility—
(1) The intended use for which either—
(i) Will require that such building or facility be accessible to the public, or
(ii) May result in employment or residence therein of physically handicapped persons; and
(2) Which is—
(i) To be constructed or altered by or on behalf of the United States;
(ii) To be leased in whole or in part by the United States—
(A) After August 12, 1968, and before January 1, 1977, after construction or alteration in accordance with plans and specifications of the United States; or
(B) On or after January 1, 1977, including any renewal of a lease entered into before January 1, 1977, which renewal is on or after such date;
(iii) To be financed in whole or in part by a grant or loan made by the United States after August 12, 1968, if the building or facility may be subject to standards for design, construction, or alteration issued under the law authorizing the grant or loan; or
(iv) To be constructed under the authority of the National Capital Transportation Act of 1960, the National Capital Transportation Act of 1965, or title III of the Washington Metropolitan Area Transit Regulation Compact.
(c) Buildings and facilities not covered. The standards do not apply to—
(1) Any privately owned residential structure, unless it is leased by the Federal government on or after January 1, 1977, for subsidized housing programs; or
(2) Any building or facility on a military installation designed and constructed primarily for use by military personnel.
(d) Any covered building or facility, as provided in this section, which is designed, constructed, or altered after the effective date of a standard issued which is applicable to the building or facility, shall be designed, constructed, altered, or leased in accordance with the standard. For purposes of this section, any design, construction, alteration or lease for which bids or offers are received before the effective date of an applicable standard, in response to an invitation for bids or request for proposals, is not subject to that standard.
§ 1150.3 Policy of amicable resolution.
The policy of the Architectural and Transportation Barriers Compliance Board is to maximize the accessibility and usability of buildings, and facilities through amicable means. To this end, the Architectural and Transportation Barriers Compliance Board encourages voluntary and informal resolution of all complaints.
§ 1150.4 Definitions.
A&TBCB means the Architectural and Transportation Barriers Compliance Board.
Agency means Federal department, agency, or instrumentality as defined in sections 551(1) and 701(b)(1) of title 5 U.S.C., or an agency official authorized to represent the agency. It includes any executive department or independent establishment in the Executive Branch of the government, including wholly owned government corporations, and any establishment in the legislative or judicial branch of the government, except the Senate, the House of Representatives, and the Architect of the Capitol and any activities under his direction.
Alteration means any change in a building or facility or its permanent fixtures or equipment. It includes, but is not limited to, remodeling, renovation, rehabilitation, reconstruction, changes or rearrangement in structural parts, and extraordinary repairs. It does not include normal maintenance, reroofing, interior decoration, or changes to mechanical systems.
Architectural Barriers Act means the Architectural Barriers Act of 1968, Pub. L. 90-480, as amended, 42 U.S.C. 4151 et seq.
Building or facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, parks, sites, or other real property or interest in such property.
Chair means the Chair of the A&TBCB.
Complaint means any written notice of an alleged violation, whether from an individual or organization, or other written information reasonably indicating to the Executive Director a violation of the standard.
Construction means any section of a new building or an addition to an existing building.
Day means calendar day.
Executive Director means the A&TBCB Executive Director.
Extraordinary repair means the replacement or renewal of any element of an existing building or facility for purposes other than normal maintenance.
Judge means an Administrative Law Judge appointed by the A&TBCB and assigned to the case in accordance with either section 3105 or 3314 of title 5 U.S.C.
PER means Provisional Expedited Relief.
Respondent means a party answering the citation, including PER Citation.
Section 502 of the Rehabilitation Act means section 502 of the Rehabilitation Act of 1973, Pub. L. 93-112, 29 U.S.C. 792, as amended.
Standard means any standard for accessibility and usability prescribed under the Architectural Barriers Act.
§ 1150.5 Scope and interpretation of rules.
(a) These rules shall govern all compliance proceedings held before a judge and all alleged violations coming to the Executive Director as a complaint.
(b) In the absence of a specific provision in these rules, procedure shall be in accordance with the Administrative Procedure Act, subchapter II of chapter 5 and chapter 7, of title 5 U.S.C., and the Federal Rules of Civil Procedure, in that order.
(c) These rules and regulations shall be liberally construed to effectuate the purposes and provisions of the Architectural Barriers Act and section 502 of the Rehabilitation Act.
(d) The rules shall be applied to secure fairness in administration and elimination of unjustifiable expense and delay and to ascertain the truth.
(e) Words importing the singular number may extend and be applied to a plural and vice versa.
§ 1150.6 Suspension of rules.
Upon notice to all parties, the judge, with respect to matters pending before him/her, may modify or waive any rule in these regulations upon determination that no party will be unduly prejudiced and that the end of justice will be served.
Subpart B—Parties, Complainants, Participants
§ 1150.11 Parties.
(a) The term parties includes (1) any agency, state or local body, or other person named as a respondent in a notice of hearing or opportunity for hearing, (2) the Executive Director and (3) any person named as a party by order of the judge.
(b) The Executive Director has the sole authority to initiate proceedings by issuing a citation under § 1150.42, on the basis of (1) a complaint from any person or (2) alleged violations coming to his/her attention through any means.
§ 1150.12 Complainants.
(a) Any person may submit a complaint to the A&TBCB alleging that a building or facility does not comply with applicable standards issued under the Architectural Barriers Act. Complaints must be in writing and should be sent to: Executive Director, Architectural and Transportation Barriers Compliance Board, 1111 18th Street, Suite 501, Washington, DC 20036-3894.
(b) The A&TBCB shall hold in confidence the identity of all persons submitting complaints unless the person submits a written authorization otherwise.
(c) The A&TBCB shall give or mail to the complainant a copy of these regulations.
(d) A complainant is not a party to the proceedings as a matter of course, but may petition the judge to participate under § 1150.13.
(e) The A&TBCB shall send the complainant a copy of the final order issued by the judge. The complainant has standing to obtain judicial review of that order.
§ 1150.13 Participation on petition.
(a) By petitioning the judge, any person may be permitted to participate in the proceedings when he/she claims an interest in the proceedings and may contribute materially to their proper disposition. A complainant shall be permitted to participate in the proceeding when he/she petitions the judge.
(b) The judge may, in his/her discretion, determine the extent of participation of petitioners, including as an intervening party or participant. The judge may, in his/her discretion, limit participation to submitting documents and briefs, or permit the introduction of evidence and questioning of witnesses.
§ 1150.14 Appearance.
(a) A party may appear in person or by counsel or other representative and participate fully in any proceedings. An agency, state or local body, corporation or other association, may appear by any of its officers or by any employee it authorizes to appear on its behalf.
(b) A representative of a party or participant shall be deemed to control all matters respecting the interest of such party or participant in the proceedings.
(c) This section shall not be construed to require any representative to be an attorney-at-law.
(d) Withdrawal of appearance of any representative is effective when a written notice of withdrawal is filed and served on all parties and participants.
Subpart C—Form, Execution, Service and Filing of Documents for Proceedings on Citations
§ 1150.21 Form of documents to be filed.
Documents to be filed under the rules in this part shall be dated, the original signed in ink, shall show the docket number and title of the proceeding and shall show the title, if any, and address of the signatory. Copies need not be signed; however, the name of the person signing the original, but not necessarily his/her signature, shall be reproduced. Documents shall be legible and shall not be more than 8
§ 1150.22 Signature of documents.
The signature of a party, authorized officer, employee or attorney constitutes a certification that he/she has read the document, that to the best of his/her knowledge, information, and belief there is a good ground to support it, and that it is not interposed for delay. If a document is not signed or is signed with intent to defeat the purpose of this section, it may be stricken as sham and false and the proceeding may proceed as though the document had not been filed.
§ 1150.23 Filing and service.
(a) General. All notices, written motions, requests, petitions, memoranda, pleadings, briefs, decisions, and correspondence to the judge, from a party or a participant or vice versa, relating to a proceeding after its commencement shall be filed and served on all parties and participants.
(b) Filing. Parties shall submit for filing the original and two copies of documents, exhibits, and transcripts of testimony. Filings shall be made in person or by mail, with the hearing clerk at the address stated in the notice of hearing or notice of opportunity for hearing, during regular business hours. Regular business hours are every Monday through Friday (Federal legal holidays excepted) from 9 a.m. to 5:30 p.m. Standard or Daylight Savings Time, whichever is effective in the city where the office of the judge is located at the time.
(c) Service. Service of one copy shall be made on each party and participant by personal delivery or by certified mail, return receipt requested, properly addressed with postage prepaid. When a party or participant has appeared by attorney or other representative, service upon the attorney or representative is deemed service upon the party or participant.
§ 1150.24 [Reserved]
§ 1150.25 Date of service.
The date of service shall be the day when the matter is deposited in United States mail or is delivered in person, except that the date of service of the initial notice of hearing or opportunity for hearing shall be the date of its delivery, or the date that its attempted delivery is refused.
§ 1150.26 Certificate of service.
The original of every document filed and required to be served upon parties to a proceeding shall be endorsed with a certificate of service signed by the party making service or by his/her attorney or representative, stating that such service has been made, the date of service, and the manner of service, whether by mail or personal delivery.
Subpart D—Time
§ 1150.31 Computation.
In computing any period of time under these rules or in any order issued under them, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or Federal legal holiday, in which event it includes the next following business day. When the period of time prescribed or allowed is less than seven (7) days, intermediate Saturdays, Sundays, and Federal legal holidays shall be excluded from the computation.
§ 1150.32 Extension of time or postponement.
(a) Requests for extension of time shall be addressed to the judge and served on all parties and participants. Requests should set forth the reasons for the application.
(b) If made promptly, answers to requests for extension of time are permitted.
(c) The judge may grant the extension upon a showing of good cause by the applicant.
Subpart E—Proceedings Prior to Hearings; Pleadings and Motions
§ 1150.41 Informal resolution.
(a) The A&TBCB immediately shall send copies of complaints to all interested agencies and persons. In addition, the A&TBCB shall apprise any person who might become a party to compliance proceedings of the alleged instances of noncompliance and afford him/her a reasonable opportunity to respond or submit pertinent documents.
(b) The Executive Director or his/her designee shall seek the cooperation of persons and agencies in obtaining compliance and shall provide assistance and guidance to help them comply voluntarily.
(c) Upon request of the Executive Director, interested agencies or persons, including, but not limited to, occupant agencies, recipients of assistance, and lessors, shall submit to the Executive Director or his/her designee timely, complete, and accurate reports concerning the particular complaint. Reports shall be completed at such times, and in such form containing all information as the Executive Director or his/her designee may prescribe.
(d) The Executive Director, or his/her designee, shall have access during normal business hours to books, records, accounts and other sources of information and facilities as may be pertinent to ascertain compliance. Considerations of privacy or confidentiality asserted by an agency or person may not bar the Executive Director from evaluating such materials or seeking to enforce compliance. The Executive Director may seek a protective order authorizing the use of allegedly confidential materials on terms and conditions specified by the judge.
(e) Complaints should be resolved informally and expeditiously, by the interested persons or agencies. If compliance with the applicable standards is not achieved informally or an impasse concerning the allegations of compliance or noncompliance is reached, the Executive Director will review the matter, including previous attempts by agencies to resolve the complaint, and take actions including, but not limited to, surveying and investigating buildings, monitoring compliance programs of agencies, furnishing technical assistance, such as standard interpretation, to agencies, and obtaining assurances, certifications, and plans of action as may be necessary to ensure compliance.
(f) All actions to informally resolve complaints under paragraphs (a) through (e) of this section shall be completed within one hundred eighty (180) days after receipt of the complaint by all affected agencies and persons. A complaint shall be deemed informally resolved if the person or agencies responsible for the alleged violation either:
(1) Demonstrates to the Executive Director that no violation has occurred, or
(2) Corrects the violation, or
(3) Agrees in writing to implement specific compliance action within a definite time agreed to by the Executive Director, or
(4) Are timely implementing a plan for compliance agreed to by the Executive Director.
(g) A determination not to issue a citation shall be served in accordance with § 1150.23 on all interested agencies and persons upon whom a citation would have been served if it had been issued. Except as otherwise provided in paragraph (i) of this section, the failure of the Executive Director to take action within the ten (10) day period after termination of the one hundred eighty (180) day informal resolution period shall not preclude the Executive Director from taking action thereafter.
(h) Nothing in paragraphs (a) through (g) of this section shall be construed as precluding the Executive Director before the termination of the one hundred eighty (180) day informal resolution period from:
(1) Issuing a citation if it is reasonably clear that informal resolution cannot be achieved within that time, or
(2) Determining not to issue a citation if it is reasonably clear that compliance can be achieved or that issuance of a citation is not otherwise warranted.
(i) At any time after the expiration of one hundred ninety (190) days after receipt of the complaint by all affected agencies and persons, any person or agency receiving a copy of the complaint, or the complainant, may serve a written request on the Executive Director to issue a citation or determination not to proceed within thirty (30) days. If the Executive Director fails to serve a written response within thirty (30) days of receipt of such a request, the complaint shall be deemed closed.
§ 1150.42 Citations.
(a) If there appears to be a failure or threatened failure to comply with a relevant standard, and the noncompliance or threatened noncompliance cannot be corrected or resolved by informal means under § 1150.41, the Executive Director on behalf of the A&TBCB may issue a written citation, requesting the ordering of relief necessary to ensure compliance with the standards or guidelines and requirements. The relief may include the suspension or withholding of funds and/or specific corrective action.
(b) The citation shall be served upon all interested parties, as appropriate, including but not limited to the complainant, the agency having custody, control, or use of the building or facility, and the agency funding by contract, grant, or loan, the allegedly noncomplying building or facility.
(c) The citation shall contain:
(1) A concise jurisdictional statement reciting the provisions of section 502 of the Rehabilitation Act and Architectural Barriers Act under which the requested action may be taken, (2) a short and plain basis for requesting the imposition of the sanctions, (3) a statement either that within fifteen (15) days a hearing date will be set or that the agency or affected parties may request a hearing within fifteen (15) days from service of the citation, and (4) a list of all pertinent documents necessary for the judge to make a decision on the alleged noncompliance, including but not limited to, contracts, invitations for bids, specifications, contract or grant drawings, and correspondence.
(d) The Executive Director shall file copies of all pertinent documents listed in the citation simultaneously with filing the citation.
§ 1150.43 Answers.
(a) Answers shall be filed by respondents within fifteen (15) days after receipt of a citation.
(b) The answer shall admit or deny specifically and in detail, matters set forth in each allegation of the citation. If the respondent is without knowledge, the answer shall so state and such statement shall be deemed a denial. Matters not specifically denied shall be deemed admitted. Failure to file a timely answer shall constitute an admission of all facts recited in the citation.
(c) Answers shall contain a list of additional pertinent documents not listed in the citation when respondent reasonably believes these documents are necessary for the judge to make a decision. Copies of the listed documents shall be filed with the answer.
(d) Answers may also contain a request for a hearing under § 1150.45.
§ 1150.44 Amendments.
(a) The Executive Director may amend the citation as a matter of course before an answer is filed. A respondent may amend its answer once as a matter of course, but not later than five (5) days after the filing of the original answer. Other amendments of the citation or the answer shall be made only by leave of judge.
(b) An amended citation shall be answered within five (5) days of its service, or within the time for filing an answer to the original citation, whichever is longer.
§ 1150.45 Request for hearing.
When a citation does not state that a hearing will be scheduled, the respondent, either in a separate paragraph of the answer, or in a separate document, may request a hearing. Failure of a respondent to request a hearing within fifteen (15) days from service of the citation shall be deemed a waiver of the right to a hearing and shall constitute consent to the making of a decision on the basis of available information.
§ 1150.46 Motions.
(a) Motions and petitions shall state the relief sought, the authority relied upon, and the facts alleged.
(b) If made before or after the hearing, these matters shall be in writing. If made at the hearing, they may be stated orally or the judge may require that they be reduced to writing and filed and served on all parties.
(c) Except as otherwise ordered by judge, responses to a written motion or petition shall be filed within ten (10) days after the motion or petition is served. An immediate oral response may be made to an oral motion. All oral arguments on motions will be at the discretion of the judge.
(d) A reply to a response may be filed within within five (5) days after the response is served. The reply shall address only the contents of the response.
§ 1150.47 Disposition of motions and petitions.
The judge may not sustain or grant a written motion or petition prior to expiration of the time for filing responses, but may overrule or deny such motion or petition without awaiting response, Providing however, That prehearing conferences, hearings, and decisions need not be delayed pending disposition of motions or petitions. All motions and petitions may be ruled upon immediately after reply. Motions and petitions not disposed of in separate rulings or in decisions will be deemed denied.
§ 1150.48 PER: Citation, answer, amendment.
(a) Unless otherwise specified, other relevant sections shall apply to PER proceedings.
(b) In addition to all other forms of relief requested, the citation shall request PER when it appears to the Executive Director that immediate and irreparable harm from noncompliance with the standard is occurring or is about to occur. Citations requesting PER shall recite specific facts and include the affidavit or the notarized complaint upon which the PER request is based. Citations requesting PER shall recite that a hearing regarding PER has been scheduled to take place eight (8) days after receipt of the citation. Citations requesting PER may be filed without prejudice to proceedings in which PER is not requested and without prejudice to further proceedings if PER is denied. The time and place of hearing fixed in the citation shall be reasonable and shall be subject to change for cause.
(c) Answers to citations requesting PER shall be in the form of all answers, as set forth in § 1150.43, and must be filed within four (4) days after receipt of the citation. Answers shall recite in detail, by affidavit or by notarized answer, why the PER requested should not be granted.
(d) When a citation contains both a request for relief to ensure compliance with a standard and a request for PER, an answer to the PER request shall be filed in accordance with paragraph (c) of this section and an answer to a request for other relief shall be filed in accordance with § 1150.43.
(e) Citations and answers in PER proceedings may not be amended prior to hearing. Citations and answers in PER proceedings may be amended at the hearing with the permission of the judge.
Subpart F—Responsibilities and Duties of Judge
§ 1150.51 Who presides.
(a) A judge assigned to the case under section 3105 or 3344 of title 5 U.S.C. (formerly section 11 of the Administrative Procedure Act), shall preside over the taking of evidence in any hearing to which these rules of procedure apply.
(b) The A&TBCB shall, in writing, promptly notify all parties and participants of the assignment of the judge. This notice may fix the time and place of hearing.
(c) Pending his/her assignment, the responsibilities, duties, and authorities of the judge under these regulations shall be executed by the A&TBCB, through the Chair or another member of the A&TBCB designated by the Chair. A Board member shall not serve in this capacity in any proceeding relating to the member, his/her Federal agency, or organization of which he/she is otherwise interested.
§ 1150.52 Authority of judge.
The judge shall have the duty to conduct a fair hearing, to take all necessary action to avoid delay, and maintain order. He/she shall have all powers necessary to effect these ends, including (but not limited to) the power to:
(a) Arrange and issue notice of the date, time, and place of hearings previously set.
(b) Hold conferences to settle, simplify, or fix the issues in proceedings, or to consider other matters that may aid in the expeditious disposition of the proceedings.
(c) Require parties and participants to state their position with respect to the various issues in the proceedings.
(d) Administer oaths and affirmations.
(e) Rule on motions, and other procedural items on matters pending before him/her.
(f) Regulate the course of the hearing and conduct of counsel.
(g) Examine witnesses and direct witnesses to testify.
(h) Receive, rule on, exclude or limit evidence.
(i) Fix time for filing motions, petitions, briefs, or other items in matters pending before him/her.
(j) Issue decisions.
(k) Take any action authorized by the rules in this part or the provisions of sections 551 through 559 of title 5 U.S.C. (the Administrative Procedure Act).
§ 1150.53 Disqualification of judge.
(a) A judge shall disqualify himself/herself whenever in his/her opinion it is improper for him/her to preside at the proceedings.
(b) At any time following appointment of the judge and before the filing of the decision, any party may request the judge to withdraw on grounds of personal bias or prejudice either against it or in favor of any adverse party, by promptly filing with him/her an affidavit setting forth in detail the alleged grounds for disqualification.
(c) If, in the opinion of the judge, the affidavit referred to in paragraph (b) of this section is filed with due diligence and is sufficient on its face, the judge shall promptly disqualify himself/herself.
(d) If the judge does not disqualify himself/herself, he/she shall so rule upon the record, stating the grounds for his/her ruling. Then, he/she shall proceed with the hearing, or, if the hearing has closed, he/she shall proceed with the issuance of the decision.
Subpart G—Prehearing Conferences and Discovery
§ 1150.61 Prehearing conference.
(a) At any time before a hearing, the judge on his/her own motion or on motion of a party, may direct the parties or their representative to exchange information or to participate in a prehearing conference for the purpose of considering matters which tend to simplify the issues or expedite the proceedings.
(b) The judge may issue a prehearing order which includes the agreements reached by the parties. Such order shall be served upon all parties and participants and shall be a part of the record.
§ 1150.62 Exhibits.
(a) Proposed exhibits shall be exhanged at the prehearing conference, or otherwise prior to the hearing if the judge so requires. Proposed exhibits not so exchanged may be denied admission as evidence.
(b) The authenticity of all proposed exhibits will be deemed admitted unless written objection to them is filed prior to the hearing or unless good cause is shown at the hearing for failure to file such written objection.
§ 1150.63 Discovery.
(a) Parties are encouraged to engage in voluntary discovery procedures. For good cause shown under appropriate circumstances, but not as a matter of course, the judge may entertain motions for permission for discovery and issue orders including orders—(1) to submit testimony upon oral examination or written interrogatories before an officer authorized to administer oaths, (2) to permit service of written interrogatories upon the opposing party, (3) to produce and permit inspection of designated documents, and (4) to permit service upon the opposing parties of a request for the admission of specified facts.
(b) Motions for discovery shall be granted only to the extent and upon such terms as the judge in his/her discretion considers to be consistent with and essential to the objective of securing a just and inexpensive determination of the merits of the citation without unnecessary delay.
(c) In connection with any discovery procedure, the judge may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense, including limitations on the scope, method, time and place for discovery, and provisions for protecting the secrecy of confidential information or documents. If any party fails to comply with a discovery order of the judge, without an excuse or explanation satisfactory to the judge, the judge may decide the fact or issue relating to the material requested to be produced, or the subject matter of the probable testimony, in accordance with claims of the other party in interest or in accordance with the other evidence available to the judge, or make such other ruling as he/she determines just and proper.
Subpart H—Hearing Procedures
§ 1150.71 Briefs.
The judge may require parties and participants to file written statements of position before the hearing begins. The judge may also require the parties to submit trial briefs.
§ 1150.72 Purpose of hearing.
Hearings for the receipt of evidence will be held only in cases where issues of fact must be resolved. Where it appears from the citation, the answer, stipulations, or other documents in the record, that there are no matters of material fact in dispute, the judge may enter an order so finding, vacating the hearing date, if one has been set, and fixing the time for filing briefs.
§ 1150.73 Testimony.
(a) Formal rules of evidence shall not apply, but rules or principles designed to assure production of the most probative evidence available do apply. Testimony shall be given orally under oath or affirmation; but the judge, in his/her discretion, may require or permit the direct testimony of any witness to be prepared in writing and served on all parties in advance of the hearing. Such testimony may be adopted by the witness at the hearing and filed as part of the record.
(b) All witnesses shall be available for cross-examination and, at the discretion of the judge, may be cross-examined without regard to the scope of direct examination as to any matter which is relevant and material to the proceeding.
(c) When testimony is taken by deposition, an opportunity shall be given, with appropriate notice, for all parties to cross-examine the witness. Objections to any testimony or evidence presented shall be deemed waived unless raised at the time of the deposition.
(d) Witnesses appearing before the judge shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. Witnesses whose depositions are taken and the persons taking the same shall be entitled to the same fees as are paid for like services in the courts of the United States. Witness fees and mileage shall be paid by the party requesting the witness to appear, and the person taking a deposition shall be paid by the party requesting the taking of the deposition.
§ 1150.74 Exclusion of evidence.
The judge may exclude evidence which is immaterial, irrelevant, unreliable, or unduly repetitious.
§ 1150.75 Objections.
Objections to evidence or testimony shall be timely and may briefly state the grounds.
§ 1150.76 Exceptions.
Exceptions to rulings of the judge are unnecessary. It is sufficient that a party at the time the ruling of the judge is sought, makes known the action which he/she desires the judge to take, or his/her objection to an action taken, and his/her grounds for it.
§ 1150.77 Official notice.
Where official notice is taken or is to be taken of a material fact not appearing in the evidence of record, any party on timely request, shall be afforded an opportunity to question the propriety of taking notice or to rebut the fact noticed.
§ 1150.78 Public documents.
When a party or paticipant offers, in whole or in part, a public document, such as an official report, decision, opinion, or published scientific or economic statistical data issued by any of the executive departments, or their subdivisions, legislative agencies or committees or administrative agencies of the Federal government (including government-owned corporations), or a similar document issued by a State or local government or their agencies, and such document (or part thereof) has been shown by the offeror to be reasonably available to the public, such document need not be produced or marked for identification, but may be offered for official notice, as a public document by specifying the document or its relevant part.
§ 1150.79 Offer of proof.
An offer of proof made in connection with an objection taken to a ruling of the judge rejecting or excluding proffered oral testimony shall consist of a statement of the substance of the evidence which counsel contends would be adduced by such testimony. If the excluded evidence consists of evidence in documentary or written form or refers to documents or records, a copy of the evidence shall be marked for identification and shall accompany the record as the offer of proof.
§ 1150.80 Affidavits.
An affidavit is not inadmissible as such. Unless the judge fixes other time periods, affidavits shall be filed and served on the parties not later than fifteen (15) days prior to the hearing. Not less than seven (7) days prior to hearing, a party may file and serve written objections to any affidavit on the ground that he/she believes it necessary to test the truth of its assertions at hearing. In such event the assertions objected to will not be received in evidence unless the affiant is made available for cross-examination, or the judge determines that cross-examination is not necessary for the full and true disclosure of facts referred to in such assertions. Not withstanding any objection, however, affidavits may be considered in the case of any respondent who waives a hearing.
§ 1150.81 Consolidated or joint hearing.
In cases in which the same or related facts are asserted to constitute noncompliance with standards or guidelines and requirements, the judge may order all related cases consolidated and may make other orders concerning the proceedings as will be consistent with the objective of securing a just and inexpensive determination of the case without unnecessary delay.
§ 1150.82 PER proceedings.
(a) In proceedings in which a citation, or part of one, seeking PER has been filed, the judge shall make necessary rulings with respect to time for filing of pleadings, the conduct of the hearing, and to all other matters. He/she shall do all other things necessary to complete the proceeding in the minimum time consistent with the objective of securing an expeditious, just and inexpensive determination of the case. The times for actions set forth in these rules shall be followed unless otherwise ordered by the judge.
(b) The judge shall determine the terms and conditions for orders of PER. These orders must be consistent with preserving the rights of all parties so as to permit the timely processing of the citation, or part of it, not requesting PER, as well as consistent with the provisions and objectives of the Architectural Barriers Act and section 502 of the Rehabilitation Act. In issuing an order for PER, the judge shall make the following specific findings of fact and conclusions of law—
(1) The Executive Director is likely to succeed on the merits of the proceedings;
(2) The threatened injury or violation outweighs the threatened harm to the respondent if PER is granted; and
(3) Granting PER is in the public interest.
(c) The judge may dismiss any citation or part of a citation seeking PER when the judge finds that the timely processing of a citation not requesting PER will adequately ensure the objectives of section 502 of the Rehabilitation Act and that immediate and irreparable harm caused by noncompliance with the standards or guidelines and requirements is not occurring or about to occur.
Subpart I—The Record
§ 1150.91 Record for decision.
The transcript of testimony, exhibits and all papers, documents and requests filed in the proceeding, including briefs and proposed findings and conclusions, shall constitute the record for decision.
§ 1150.92 Official transcript.
The official transcripts of testimony, and any exhibits, briefs, or memoranda of law filed with them, shall be filed with the judge. Transcripts of testimony in hearings may be obtained from the official reporter by the parties and the public at rates not to exceed the maximum rates fixed by the contract between the A&TBCB and the reporter. Upon notice to all parties, the judge may authorize corrections to the transcript as are necessary to reflect accurately the testimony.
Subpart J—Posthearing Procedures; Decisions
§ 1150.101 Posthearing briefs; proposed findings.
The judge shall fix the terms, including time, for filing post-hearing statements of position or briefs, which may contain proposed findings of fact and conclusions of law. The judge may fix a reasonable time for such filing, but this period shall not exceed thirty (30) days from the receipt by the parties of the transcript of the hearing.
§ 1150.102 Decision.
(a) The judge shall issue a decision within thirty (30) days after the hearing ends or, when the parties submit posthearing briefs, within thirty (30) days after the filing of the briefs.
(b) The decision shall contain (1) all findings of fact and conclusions of law regarding all material issues of fact and law presented in the record, (2) the reasons for each finding of fact and conclusion of law, and (3) other provisions which effectuate the purposes of the Architectural Barriers Act and section 502 of the Rehabilitation Act. The decision may direct the parties to take specific action or may order the suspension or withholding of Federal funds.
(c) The decision shall be served on all parties and participants to the proceedings.
§ 1150.103 Posthearing briefs, decision.
(a) No briefs or posthearing statements of position shall be required in proceedings seeking PER unless specifically ordered by the judge.
(b) In proceedings seeking PER the decision may be given orally at the close of the hearing and shall be made in writing within three (3) days after the hearing.
§ 1150.104 Judicial review.
Any complainant or participant in a proceeding may obtain judicial review of a final order issued in a compliance proceeding.
§ 1150.105 Court enforcement.
The Executive Director, at the direction of the Board, shall bring a civil action in any appropriate United States district court to enforce, in whole or in part, any final compliance order. No member of the A&TBCB shall participate in any decision of the A&TBCB concerning a proceeding relating to the member, his/her Federal agency, or organization to which he/she is a member or in which he/she is otherwise interested.
Subpart K—Miscellaneous Provisions
§ 1150.111 Ex parte communications.
(a) No party, participant or other person having an interest in the case shall make or cause to be made an ex parte communication to the judge with respect to the case.
(b) A request for information directed to the judge which merely inquiries about the status of a proceeding without discussing issues or expressing points of view is not deemed an ex parte communication. Communications with respect to minor procedural matters or inquires or emergency requests for extensions of time are not deemed ex parte communications prohibited by paragraph (a) of this section. Where feasible, however, such communications should be by letter, with copies delivered to all parties. Ex parte communications between a party or participant and the Executive Director with respect to securing compliance are not prohibited.
(c) In the event an ex parte communication occurs, the judge shall issue orders and take action as fairness requires. A prohibited communication in writing received by the judge shall be made public by placing it in the correspondence file of the docket in the case and will not be considered as part of the record for decision. If the prohibited communication is received orally, a memorandum setting forth its substance shall be made and filed in the correspondence section of the docket in the case. A person referred to in this memorandum may file a comment for inclusion in the docket if he/she considers the memorandum to be incorrect.
§ 1150.112 Post-order proceedings.
(a) Any party adversely affected by the compliance order issued by a judge may make a motion to the judge to have such order vacated upon a showing that the building or facility complies with the order.
(b) Notice of motions and copies of all pleadings shall be served on all parties and participants to the original proceeding. Responses to the motion to vacate shall be filed within ten (10) days after receipt of the motion unless the judge for good cause shown grants additional time to respond.
(c) Oral arguments on the motion may be ordered by the judge. The judge shall fix the terms of the argument so that they are consistent with the objective of securing a prompt, just, and inexpensive determination of the motion.
(d) Within ten (10) days after receipt of all answers to the motion, the judge shall issue his/her decision in accordance with § 1150.102 (b) and (c).
§ 1150.113 Amicable resolution.
(a) Amicable resolution is encouraged at any stage of proceedings where such resolution is consistent with the provisions and objectives of the Architectural Barriers Act and section 502 of the Rehabilitation Act.
(b) Agreements to amicably resolve pending proceedings shall be submitted by the parties and shall be accompanied by an appropriate proposed order.
(c) The Executive Director is authorized to resolve any proceeding on behalf of the A&TBCB unless otherwise specifically directed by the A&TBCB and afterwards may file appropriate stipulations or notice that the proceeding is discontinued.
§ 1150.114 Effect of partial invalidity.
If any section, subsection, paragraph, sentence, clause or phrase of these regulations is declared invalid for any reason, the remaining portions of these regulations that are severable from the invalid part shall remain in full force and effect. If a part of these regulations is invalid in one or more of its applications, the part shall remain in effect in all valid applications that are severable from the invalid applications.
PART 1151—BYLAWS
§ 1151.1 Establishment.
The Architectural and Transportation Barriers Compliance Board was established pursuant to section 502 of the Rehabilitation Act of 1973, as amended. The agency is also known and often referred to as the “Access Board” or simply the “Board.”
§ 1151.2 Authority.
The Board is the governing body of the agency. The Board shall have the authority and responsibilities as set forth in section 502 of the Rehabilitation Act of 1973 (29 U.S.C. 792); section 504 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12204); and section 225(e) of the Telecommunications Act of 1996 (47 U.S.C. 255(e)).
§ 1151.3 Membership.
(a) Public Members. (1) The Board shall have thirteen members appointed by the President from among members of the general public, at least a majority of whom shall have disabilities.
(2) Members shall be appointed for a term of four years, may be reappointed to one successive term, and thereafter may not be reappointed unless they have not served on the Access board for at least two years prior to their reappointment. Each year, the terms of at least three members of the Board shall expire. A public member may continue to serve following expiration of the member’s term if a successor has not been appointed.
(b) Federal Members. The remaining members of the Board shall be the heads of the following agencies or their designees whose positions are Executive Level IV or higher:
(1) The Department of health and Human Services;
(2) The Department of Transportation;
(3) The Department of Housing and Urban Development;
(4) The Department of Labor;
(5) The Department of the Interior;
(6) The Department of Defense;
(7) The Department of Justice;
(8) The General Services Administration;
(9) The Department of Veterans Affairs;
(10) The United States Postal Service;
(11) The Department of Education; and
(12) The Department of Commerce.
(c) Designation of Federal Board Members and Liaisons. (1) Designation of a Federal Board member other than an agency head shall be made in writing by the agency head or by anyone authorized to provide such designation on behalf of the agency head. The designation may either be of a particular position, an individual, or both. If only a specific person is designated and not the position, a new designation will be required where appointment of another person to fill the position is subsequently made. The designation shall remain in effect for as long as provided for under applicable agency rules, regulations, or policies.
(2) An individual serving in an acting capacity, or who is otherwise temporarily serving, in a position at Executive Level IV or higher may be designated to serve on the Board, subject to any time limitations under applicable law, or under agency rules, regulations, or policies.
(3) Any newly-appointed Federal Board member shall designate in writing a liaison to the Board. A newly appointed Federal Board member may allow an individual previously serving as a liaison to the Board to continue to do so, but must provide a new designation in writing.
(4) Written designation of a Federal Board member or liaison may be in any form (including from a verifiable email address) indicating the identity of the person making the designation and that the person is authorized to do so.
§ 1151.4 Officers.
(a) Chair; Vice Chair. (1) The head of the agency is the Chair of the Board and, in his or her absence or disqualification, the Vice-Chair of the Board. As head of the agency, the Chair represents the Board whenever an applicable Federal statute or regulation imposes a duty or grants a right or authority to the head of the agency and has the authority to act in all matters relating to the operation of the Board. The Chair may delegate any such duties and responsibilities by written delegation of authority. The Chair supervises the Executive Director and evaluates his or her performance and approves performance evaluations of employees who report directly to the Executive Director. The authority to supervise, evaluate, and approve performance evaluations of the Executive Director and those employees who report directly to the Executive Director may only be delegated to the Vice-Chair of the Board.
(2) The Chair and the Vice-Chair of the Board shall be elected by a majority of the membership of the Board (as fixed by statute) and serve for terms of one year. Elections shall be held as soon as possible upon completion of the one year term of the Chair and Vice-Chair, ordinarily at the April meeting of the Board. If no new Chair or Vice-Chair has been elected at the end of the one-year term, the incumbents shall continue to serve in that capacity until a successor Chair or Vice-Chair has been elected. When the Chair is a public member, the Vice-Chair shall be a Federal member; and when the Chair is a Federal member, the Vice-Chair shall be a public member. Upon the expiration of the term as Chair of a Federal member, the subsequent Chair shall be a public member; and vice versa.
(b) Executive Director. The Executive Director is nominated by the Chair and confirmed by the Board. The Executive Director provides administrative leadership and supervision and management of staff activities in carrying out the policies and decisions of the Board under the direction and supervision of the Chair. The Executive Director has the authority to execute contracts, agreements, and other documents necessary for the operation of the Board; hire, fire and promote staff (including temporary or intermittent experts and consultants); procure space, equipment, and supplies; and obtain interagency and commercial support services. The Executive Director directs compliance and enforcement activities in accordance with the procedures set forth in 36 CFR part 1150, including issuing citations and determinations not to proceed, conducting negotiations for compliance, entering into agreements for voluntary compliance, and performing all other actions authorized by law pertaining to compliance and enforcement not otherwise reserved to the Board.
(c) General Counsel. The General Counsel is nominated by the Chair and confirmed by the Board. The General Counsel is responsible to the Board under the supervision of the Executive Director.
§ 1151.5 Delegations.
(a) Delegations to the Executive Committee. The Board may delegate to the Executive Committee (provided for in § 1151.7(a)) authority to implement its decisions by a majority vote of the members present at a meeting and any proxies.
To the extent permitted by law, the Board may delegate to the Executive Committee any other of its authorities by two-thirds vote of the members present at a meeting and any proxies. A separate delegation is necessary for each action the Board desires the Executive Committee to implement.
(b) Other. To the extent permitted by law, the Board may delegate other duties to its officers or committees by a vote of two-thirds of the members present at a meeting and any proxies.
(c) Redelegation. Unless expressly prohibited in the original delegation, an officer or committee may redelegate authority.
§ 1151.6 Board meetings.
(a) Number. The Chair shall schedule four meetings of the Board each year starting January 2023, one of which may be a Board sponsored public event outside the Washington, DC area.
(b) Timing. Regular meetings of the Board shall ordinarily be held in January, April, July, and October of each calendar year. The Chair may reschedule a regular meeting of the Board to another date during the month preceding or following the month in which the regularly scheduled meeting was to occur.
(c) Manner of conducting meetings. Two regular Board meetings will be in person, but allow for participation by the Board, liaisons, and members of the public remotely, and two meetings may be entirely remote. The Board shall comply with all legal requirements concerning the manner of conducting meetings, including the requirement to provide reasonable accommodations for Board members, employees, members of the public, and other participants.
(d) Agenda. The Chair establishes the agenda for the meetings, in consultation with the Executive Director as necessary and appropriate. Members or committees may forward submissions for agenda items to the Chair and/or to the Executive Director. Except for items concerning the adoption, amendment, or rescission of the bylaws in this part, an item may be placed before the Board for consideration without the approval of the Chair upon a two-thirds vote of the members present at a Board meeting and any proxies to suspend the rules of order. Items concerning the adoption, amendment, or rescission of the bylaws in this part may be placed on a future Board agenda without the approval of the Chair upon a vote of two-thirds of the membership of the Board (as fixed by statute).
(e) Notice. (1) The Chair shall provide a schedule in writing of Board meetings for the upcoming year at least thirty (30) days prior to the January Board meeting and shall provide to each Board member the agenda and supporting materials for each meeting at least ten (10) work days prior to each meeting. The ten (10) days notice requirement may be waived upon a two-thirds vote by the members present at the Board meeting and any proxies to suspend the rules of order.
(2) The public shall receive notice of the dates of meetings for the upcoming year at least thirty (30) days prior to the January Board meeting. Notice may be by publication of the schedule of meetings on the agency’s website and/or through any other means by which interested members of the public are likely to access it. The notice shall include a statement that the Board will provide reasonable accommodations, absent an undue burden, that will enable members of the public to participate in meetings.
(f) Cancellation. The Chair may cancel a regular meeting of the Board by giving written notice of the cancellation at least ten (10) work days prior to the meeting where practical. If the canceled meeting is a public meeting, members of the public will be given notice of its cancelation at the same time as Board members.
(g) Special meetings. The Chair may call special meetings of the Board to deal with important matters arising between regular meetings which require action by the Board prior to the next regular meeting. Voting and discussion shall be limited to the subject matter which necessitated the call of the special meeting. All Board members shall receive reasonable advance notice of the time, place, and purpose of the special meeting. If the special meeting is also a public meeting, members of the public shall be given notice of its occurrence at the same time as Board members, and such notice shall indicate that the Board will provide reasonable accommodations for members of the public to participate in the meeting, absent undue burden.
(h) Record. The Executive Director shall maintain a permanent record of the minutes of all meetings and attendance. The Board shall approve the final minutes after all corrections and additions have been incorporated.
(i) Rules for Board meetings. Meetings of the Board shall be held in accordance with Robert’s Rules of Order, except as otherwise prescribed in the bylaws in this part.
(j) Quorum. (1) A quorum shall be the majority of the membership of the Board (as fixed by statute). A majority of the members required for a quorum shall be public members.
(2) Proxies shall not be counted for purposes of establishing a quorum.
(3) If a quorum is not present, a meeting shall be held only for the purpose of discussion and no vote may be taken.
(k) Voting. (1) Only Board members may vote.
(2) Except as otherwise prescribed in the bylaws in this part, a majority vote of the members present and any proxies is necessary for action by the Board.
(3) The presiding officer shall have the same right to vote as any other member.
(4) Any member may give his or her directed or undirected proxy to any other Board member present at the meeting. Proxies shall be given in writing and submitted to the Chair prior to or at the meeting. A directed proxy shall be voided as to a specific issue if the question on which the vote is eventually taken differs from the question to which the proxy is directed.
(5) The Board may act on items of business between meetings by notational voting. At the request of the Chair, the Executive Director shall send a written ballot (which may be in the form of electronic mail) to each Board member describing each item submitted for notational voting. If any Board member requests discussion on an item, the ballots shall not be counted and the Chair shall place the item on the next Board meeting agenda for discussion and voting. Notational votes shall ordinarily occur over a period of five (5) business days, but may be extended, at the Chair’s discretion, if, at the conclusion of the voting period, an insufficient number of votes have been cast to approve or disapprove an action.
(l) Telecommunications. A member of the Board shall be considered present at a meeting when he or she participates in person or by conference telephone or similar communication equipment that enables all persons participating in the meeting to communicate with each other.
§ 1151.7 Committees.
(a) Executive Committee—(1) Establishment. The Board shall have an Executive Committee to serve as a leadership and coordinating committee. The Executive Committee acts on behalf of the Board in between regularly scheduled Board meetings as necessary and as authorized by delegation of the Board. In addition, the Executive Committee may perform one or more of the following duties:
(i) Review and consider recommendations and proposals from the various subject matter committees;
(ii) Review and make recommendations to the Board to amend or approve the Board’s bylaws; and
(iii) Request and review all committee charters.
(2) Chair. The Vice-Chair of the Board shall serve as Chair of the Executive Committee.
(3) Membership. The Executive Committee shall be composed of a minimum of six members, three Federal and three public members, which shall include the Chair and the Vice-Chair of the Board, the chairs of each of the subject matter committees, and two at large members. The two at large members shall balance the number of Federal and public members and shall be elected by the Board after the election of the Chair and Vice-Chair of the Board and the chairs of the subject matter committees. In the event that the Board should establish three or more subject matter committees, additional at-large members shall be elected as necessary to balance the Federal and public membership of the committee.
(4) Quorum. A quorum in the Executive Committee shall be a majority of the membership, present at the meeting. In the absence of their Federal member, the liaison may count toward a quorum. If a quorum is not present, a meeting can be held only for the purpose of discussion and no vote may be taken.
(5) Voting. (i) The presiding officer shall have the same right to vote as any other member.
(ii) On matters subject to Board review, liaisons are permitted to vote in the absence of their Federal member. A majority vote of the members (or liaisons) present at the meeting and any directed or undirected proxies is necessary for action by the committee.
(iii) On matters of final action, not subject to Board review, a majority vote of the membership of the committee, present at the meeting or by directed proxy, is necessary for action by the committee. In the absence of their Federal member, liaisons are permitted to cast a directed proxy only.
(b) Subject matter committees—(1) Establishment. The Board may establish or dissolve subject matter committees by a two-thirds vote of the members present and any proxies.
(2) Chair. The Chair of a subject matter committee shall be elected by the Board after the election of the Chair and Vice-Chair of the Board. The Chair of a subject matter committee shall serve as a member of the Board’s Executive Committee.
(3) Membership. Each subject matter committee shall be comprised of a minimum of five (5), and a maximum of seven (7), members. Except for the Chair of the committee who is elected by the Board, the members of the committee shall be appointed by the Chair of the Board. Members shall serve a term of one year corresponding to that of the Chair of the Board, and continue their duties until their successors have been appointed.
(4) Quorum. A quorum shall be a majority of the actual membership of the committee. A liaison may represent the Federal member for purposes of a quorum. If a quorum is not present, a meeting shall be held only for the purpose of discussion and no vote may be taken.
(5) Voting. Directed or undirected proxies are permitted. In the absence of their Federal member, liaisons are permitted to vote on all matters which are subject to review by the full Board. The presiding officer shall have the same right to vote as any other member. A majority vote of the members (or liaisons) present at the meeting and any directed or undirected proxies is necessary for action by the committee.
(c) Special committees. The Chair, the Board, the Executive Committee or a subject matter committee may appoint a special committee to carry out a specific task. A special committee shall dissolve upon completion of its task or when dissolved by its creator. A special committee shall be governed by the same rules and procedures applicable to subject matter committees unless other rules or procedures are approved by the creator of the committee.
(d) Telecommunications. A member of a committee shall be considered present at a meeting when he or she participates in person or by conference telephone or similar communication equipment which enables all persons participating in the meeting to communicate with each other.
(e) Charter. With the exception of a Committee of the Whole, each committee shall establish a charter and may establish any additional procedures provided that they do not conflict with the provisions of the bylaws in this part.
(f) Procedure. Committee meetings shall be held in accordance with Robert’s Rules of Order, except as otherwise prescribed in the bylaws in this part or committee charters.
(g) Records. Committees shall maintain written records of the meetings.
§ 1151.8 Amendments to the bylaws.
In order to amend the bylaws in this part, a vote of two-thirds of the membership of the Board (as fixed by statute) at the time the vote is taken shall be required. The Board shall not suspend the rules in taking any action concerning adoption, amendment or recision of the bylaws in this part except that by vote of two-thirds of the membership of the Board (as fixed by statute), an item concerning the adoption, amendment or recision of the bylaws in this part may be placed on an agenda for Board consideration at a future meeting.
PART 1154—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD
§ 1154.101 Purpose.
The purpose of this part is to effectuate section 119 of the Rehabilitation, Comprehensive Service, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of handicap in programs or activities conducted by Executive agencies or the United States Postal Service.
§ 1154.102 Application.
This part applies to all programs or activities conducted by the agency.
§ 1154.103 Definitions.
For purposes of this part, the term—
Agency means the Architectural and Transportation Barriers Compliance Board.
Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.
Auxiliary aids means service or devices that enable persons with impaired sensory, manual, and/or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency. For example, auxiliary aids useful for persons with impaired vision include readers, Brailled materials, audio recordings, telecommunications devices and other similar services and devices. Auxiliary aids useful for persons with impaired hearing include telephones handset amplifiers, telephone compatible with hearing aids, telecommunication devices for deaf persons (TDD’s), interpreters, notetakers, written materials, and other similar services and devices.
Complete complaint means a written statement that contains the complainant’s name and address and describes the agency’s alleged discriminatory action in sufficient detail to inform the agency of the nature and date of the alleged violation of section 504. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discriminations.
Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.
Handicapped person means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
As used in this definition, the phrase:
(1) Physical or mental impairment includes—
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The term physical or mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism.
(2) Major life activities includes functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
(4) Is regarded as having an impairment means—
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in subparagraph (1) of this definition but is treated by the agency as having such an impairment.
Qualified handicapped person means—
(1) With respect to any agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, a handicapped person who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamantal alteration in its nature; and
(2) With respect to any other program or activity, a handicapped person who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity.
(3) Qualified Handicapped Person is defined for purposes of employment in 29 CFR 1613.702(f) which is made applicable to this part by § 1154.140.
Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617), and the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955). As used in this part, section 504 applies only to programs or activities conducted by Executive agencies and not to federally assisted programs.
§§ 1154.104-1154.109 [Reserved]
§ 1154.110 Self-evaluation.
(a) By July 6, 1988, the agency shall evaluate its current policies and practices, and the effects thereof, that do not or may not meet the requirements of this part, and, to the extent modification of any such policies and practices is required, the agency shall proceed to make the necessary modifications.
(b) The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the self-evaluation process by submitting comments (both oral and written).
(c) The agency shall, for all least three years following completion of the evaluation required under paragraph (a) of this section, maintain on file and make available for public inspection—
(1) A description of areas examined and any problems identified; and
(2) A description of any modifications made.
§ 1154.111 Notice.
The agency shall make available to employees, applicants, participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and made such information available to them in such manner as the agency head finds necessary to apprise effectively such persons of the protections against discrimination assured them by section 504 and this regulation.
§§ 1154.112-1154.129 [Reserved]
§ 1154.130 General prohibitions against discrimination.
(a) No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap—
(i) Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified handicapped person with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or servcies to handicapped persons or to any class of handicapped persons than is provided to others unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vi) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) The agency may not deny a qualified handicapped person the opportunity to participate in programs or activities that are not separate or different, despite the existence of permissibly separate of different programs or activities.
(3) The agency may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would—
(i) Subject qualified handicapped persons to discrimination on the basis of handicap; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to handicapped persons.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would—
(i) Exclude handicapped persons from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency; or
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to handicapped persons.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified handicapped persons to discrimination on the basis of handicap.
(c) The exclusion of nonhandicapped persons from the benefits of a program limited by Federal statute or Executive order to handicapped persons or the exclusion of a specific class of handicapped persons from a program limited by Federal statute or Executive order to a different class of handicapped persons is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
§§ 1154.131-1154.139 [Reserved]
§ 1154.140 Employment.
No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1613, shall apply to employment in federally-conducted programs or activities.
§§ 1154.141-1154.148 [Reserved]
§ 1154.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in § 1154.150, no qualified handicapped person shall, because the agency’s facilities are inaccessible to or unusable by handicapped persons, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
§ 1154.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by handicapped persons. This paragraph does not—
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by handicapped persons; or
(2) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 1154.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his/her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that handicapped persons receive the benefits and services of the program or activity.
(b) Methods. The agency may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock, or any other methods that result in making its programs or activities readily accessible to and usable by handicapped persons. The agency is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. The agency, in making alterations to existing buildings, shall meet accessibility requirements to the extent compelled by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any regulations implementing it. In choosing among available methods for meeting the requirements of this section, the agency shall give priority to those methods that offer programs and activities to qualfied handicapped persons in the most integrated setting appropriate.
(c) Time period for compliance. The agency shall comply with the obligations established under this section by September 4, 1987 except that where structural changes in facilities are undertaken, such changes shall be made by July 6, 1990, but in any event as expeditiously as possible.
(d) Transition plan. In the event that structural changes to facilities will be undertaken to achieve program accessibility, the agency shall develop by January 6, 1988, a transition plan setting forth the steps necessary to complete such changes. The agency shall provide an opportunity to interested persons, including handicapped persons or organizations representing handicapped persons, to participate in the development of the transition plan by submitting comments (both oral and written). A copy of the transition plan shall be made available for public inspection. The plan shall, at a minimum—
(1) Identify physical obstacles in the agency’s facilities that limit the accessibility of its programs or activities to handicapped persons;
(2) Describe in detail the methods that will be used to make the facilities accessible;
(3) Specify the schedule for taking the steps necessary to achieve compliance with this section and, if the time period of the transition plan is longer than one year, identify steps that will be taken during each year of the transition period; and
(4) Indicate the official responsible for implementatin of the plan.
§ 1154.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by handicapped persons. The definitions, requirements and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.
§§ 1154.152-1154.159 [Reserved]
§ 1154.160 Communications.
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary to afford a handicapped person an equal opportunity to participate in, and enjoy the benefits of, the program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the handicapped person.
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with applicants, beneficiaries, and members of the public by telephone, telecommunications devices for deaf persons (TDD’s) or equally effective telecommunication systems shall be used.
(b) The agency shall ensure that interested person, including persons with impaired vision, speech or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens.
§§ 1154.161-1154.169 [Reserved]
§ 1154.170 Compliance procedures.
(a) Except as provided in paragraph (b) of this section, this section applies to all allegations of discrimination on the basis of handicap in programs or activities conducted by the agency.
(b) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1613 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(c) Responsiblity for implementation and operation of this section shall be vested in the Equal Employment Opportunity Director.
(d) Complaints may be delivered or mailed to the Equal Employment Opportunity Director, ATBCB, 330 C Street, SW., Rm. 1010, Washington, DC 20202.
(e) The agency shall accept and investigate all complete complaints over which it has jurisdiction. All complete complaints must be filed within 180 days of the alleged act of discrimination. The agency may extend this time period for good cause.
(f) If the Equal Employment Opportunity Director receives a complaint that is not complete, he or she shall notify the complainant, within 30 days of receipt of the incomplete complaint, that additional information is needed. If the complainant fails to complete the complaint within 30 days of receipt of this notice, the Equal Employment Opportunity Director shall dismiss the complaint without prejudice, and shall notify the complainant of such dismissal.
(g) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate government entity.
(h) The agency shall notify the Director of the Compliance and Enforcement Division of any complaint alleging that a building or facility is not readily accessible to and usable by handicapped persons. The Director of the Compliance and Enforcement Division shall determine whether or not the building or facility is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), or section 502 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 792).
(i) Within 180 days of the receipt of a complete complaint over which it has jurisdiction, the agency shall notify the complainant of the results of the investigation in a letter containing—
(1) Findings of fact and conclusions of law;
(2) A description of a remedy for each violation found; and
(3) A notice of the right to appeal.
(j) Appeals of the findings of fact and conclusions of law or remedies must be filed by the complainant within 90 days of receipt from the agency of the letter required by § 1154.170(g). The agency may extend this time for good cause.
(k) Timely appeals shall be accepted and processed by the head of the agency.
(l) The head of the agency shall notify the complainant of the results of the appeal within 60 days of the receipt of the request. If the head of the agency determines that additional information is needed from the complainant, he/she shall have 60 days from the date of receipt of the additional information to make his/her determination on the appeal.
(m) The time limits cited in paragraphs (i) and (l) of this section may be extended with the permission of the Assistant Attorney General.
(n) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.
PART 1155 [RESERVED]
PART 1190—ACCESSIBILITY GUIDELINES FOR PEDESTRIAN FACILITIES IN THE PUBLIC RIGHT-OF-WAY
§ 1190.1 Accessibility Guidelines.
The accessibility guidelines for pedestrian facilities in the public right-of-way are set forth in the appendix to this part. When the guidelines are adopted, with or without additions and modifications, as accessibility standards in regulations issued by other Federal agencies implementing the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Architectural Barriers Act, compliance with the accessibility standards is mandatory.
Appendix to Part 1190—Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way
R101.1 Purpose. These guidelines contain scoping and technical requirements to ensure that pedestrian facilities located in the public right-of-way (including a public right-of-way that forms the boundary of a site or that lies within a site bounded by a property line), are readily accessible to and usable by pedestrians with disabilities.
R101.2 Application to ADA-Covered Facilities. These guidelines apply to pedestrian facilities in public rights-of-way to the extent required by regulations issued by Federal agencies under the Americans with Disabilities Act of 1990, as amended (42 U.S.C. 12101 et seq.) (ADA).
R101.3 Application to ABA-Covered Facilities. These guidelines apply to pedestrian facilities in public rights-of-way to the extent required by regulations issued by Federal agencies under the Architectural Barriers Act of 1968 (42 U.S.C. 4151 et seq.) (ABA).
R101.4 Effect on Existing Pedestrian Facilities. These guidelines do not address existing pedestrian facilities unless the pedestrian facilities are altered at the discretion of a covered entity. The Department of Justice has authority over existing facilities that are subject to the requirement for program access under title II of the ADA. Any determination that this document applies to existing facilities subject to the program access requirement is solely within the discretion of the Department of Justice and is effective only to the extent required by regulations issued by the Department of Justice.
R102.1 ADA-Covered Facilities and Equivalent Facilitation. The use of alternative designs, products, or technologies that result in substantially equivalent or greater accessibility and usability than the requirements in these guidelines shall be permitted for pedestrian facilities in the public right-of-way subject to the ADA.
R102.2 ABA-Covered Facilities and Waivers or Modifications. Equivalent facilitation is not permitted for pedestrian facilities in the public right-of-way subject to the ABA. The ABA authorizes the Administrator of the General Services Administration, the Secretary of the Department of Housing and Urban Development, the Secretary of the Department of Defense, and the United States Postal Service to modify or waive the accessibility standards for buildings and facilities covered by the ABA on a case-by-case basis, upon application made by the head of the department, agency, or instrumentality of the United States concerned and upon a determination that the waiver is clearly necessary. Pursuant to Section 502(b)(1) of the Rehabilitation Act of 1973, 29 U.S.C. 792(b), the Access Board shall ensure that modifications and waivers are based on findings of fact and are not inconsistent with the ABA.
R103.1 Conventional Industry Tolerances. All dimensions are subject to conventional industry tolerances except where requirements are stated as a range with specific minimum or maximum endpoints.
R103.2 Calculation of Percentages. Where the required number of elements or facilities to be provided is determined by calculations of ratios or percentages and remainders or fractions result, the next greater whole number of such elements or facilities shall be provided.
R103.3 Units of Measurement. Measurements are stated in U.S. customary units and metric units. The values stated in each system (U.S. customary units and metric units) may not be exact equivalents, and each system shall be used independently of the other. Slopes are expressed in terms of both ratios and percentages. Ratios and percentages may not be exact equivalents, and each shall be used independently of the other.
R104.1 Undefined Terms. Terms that are not defined in R104.3 or in regulations issued by the Department of Justice and the Department of Transportation under the ADA, the four standard setting agencies under the ABA or other Federal agencies that adopt these guidelines as accessibility standards shall be given their ordinarily accepted meaning in the sense that the context implies.
R104.2 Interchangeability. Words, terms, and phrases used in the singular include the plural and those used in the plural include the singular.
R104.3 Defined Terms. For the purpose of these guidelines, the following terms have the indicated meaning:
Accessible. A pedestrian facility or element in the public right-of-way that complies with these guidelines.
Accessible Pedestrian Signal. A device that communicates information about pedestrian signal timing in non-visual formats such as audible tones or speech messages, and vibrating surfaces.
Alteration or altered. A change to or an addition of a pedestrian facility in an existing, developed public right-of-way that affects or could affect pedestrian access, circulation, or usability.
Blended Transition. A wraparound connection at a corner, or a flush connection where there is no curb to cut through, other than a curb ramp.
Block Perimeter. The near side of the streets surrounding a block. For example, on a square block bounded by Main Street to the south, Pine Street to the north, 1st Street to the east, and 2nd Street to the west, the block perimeter includes the north side of Main Street, the south side of Pine Street, the west side of 1st Street, and the east side of 2nd Street.
Boarding Platform. A platform raised above standard curb height used for transit vehicle boarding and alighting.
Building. Any structure used or intended for supporting or sheltering any use or occupancy.
Crosswalk. That part of a roadway that is located at an intersection included within the connections of the lateral lines of the pedestrian circulation paths on opposite sides of the highway measured from the curbs, or in the absence of curbs, from the edges of the traversable roadway, and in the absence of a pedestrian circulation path on one side of the roadway, the part of a roadway included within the extension of the lateral lines of the pedestrian circulation path at right angles to the center line; or at any portion of a roadway at an intersection or elsewhere distinctly indicated as a pedestrian crossing by pavement marking lines on the surface. Crosswalks at intersections may be marked or unmarked.
Cross Slope. The slope that is perpendicular to the direction of pedestrian travel.
Curb. A raised feature along the side of a street that delineates the edge of the roadway or pedestrian circulation path.
Curb Line. A line at the face of the curb that marks the transition between the curb and the gutter or street.
Curb Ramp. A sloped connection that is cut through or built up to a curb. Curb ramps may be perpendicular or parallel to the curb or to the street they serve or be a combination thereof.
Detectable Warning Surface. A standardized surface feature built in or applied to pedestrian circulation paths and other pedestrian facilities to warn of hazards.
Developed. Containing buildings, pedestrian facilities, roadways, utilities, or elements.
Element. An architectural or mechanical component of a building, pedestrian facility, space, site, or public right-of-way.
Grade. See Running slope.
Grade Break. The line where two surface planes with different running slopes meet.
Highway. A general term denoting a public way for purposes of vehicular travel, including the entire area within the public right-of-way.
Median. The area between two roadways of a divided highway measured from edge of traveled way to edge of traveled way. The median excludes turn lanes. The median width might be different between intersections, interchanges, and at opposite approaches of the same intersection.
Operable Part. A component of an element used to insert or withdraw objects, or to activate, deactivate, or adjust the element, or to interact with the element.
Parallel Curb Ramp. A curb ramp with a running slope that is parallel to the curb or street it serves.
Passenger Loading Zone. An area that is specifically designed or designated for loading and unloading passengers, but that does not primarily serve vehicles on a fixed or scheduled route.
Pedestrian. A person on foot, travelling by wheelchair or other mobility device, on skates, or on a skateboard.
Pedestrian Access Route. An accessible, continuous, and unobstructed path of travel for use by pedestrians with disabilities within a pedestrian circulation path.
Pedestrian Activated Warning Devices. Devices that are installed in conjunction with a warning sign and are activated to alert vehicle operators to the presence of a pedestrian, such as rectangular rapid flashing beacons.
Pedestrian Change Interval. An interval during which the flashing upraised hand (symbolizing “don’t walk”) signal indication is displayed.
Pedestrian Circulation Path. A prepared exterior or interior surface provided for pedestrian use in the public right-of-way.
Pedestrian Facility. A structure, route, or space for pedestrian circulation or use located in the public right-of-way.
Pedestrian Hybrid Beacon. A special type of hybrid beacon used to warn and control traffic at an unsignalized location to assist pedestrians in crossing a street at a marked crosswalk.
Pedestrian Refuge Island. A defined area 72 inches (1828 mm) long minimum in the direction of pedestrian travel located between traffic lanes for pedestrian refuge within a median, splitter island, or channelizing island.
Pedestrian Signal Head. A device containing the walking person symbol (symbolizing “walk”) and the upraised hand symbol (symbolizing “don’t walk”), that is installed to direct pedestrian traffic at a crosswalk.
Perpendicular Curb Ramp. A curb ramp with a running slope that is perpendicular to the curb or the street it serves.
Public Right-of-Way. Public land acquired for or dedicated to transportation purposes, or other land where there is a legally established right for use by the public for transportation purposes.
Push Button. A button to activate a device or signal timing for pedestrians, bicyclists, or others crossing a roadway.
Push Button Locator Tone. A repeating sound that informs approaching pedestrians that a push button exists to actuate pedestrian timing or receive additional information and that enables pedestrians who are blind or have low vision to locate the push button.
Qualified Historic Building or Facility. A building or facility that is listed in or eligible for listing in the National Register of Historic Places or designated as historic under an appropriate state or local law.
Ramp. A sloped walking surface with a running slope steeper than 1:20 (5.0%) that accomplishes a change in level and is not part of a pedestrian circulation path that follows the roadway grade. A curb ramp is not a ramp.
Roadway. That portion of a highway improved, designed, or ordinarily used for vehicular travel and parking lanes, but exclusive of the sidewalk, berm, or shoulder.
Roundabout. A circular intersection with yield control at entry, which permits a vehicle on a circular roadway to proceed, and with deflection of the approaching vehicle counterclockwise around a central island.
Running Slope. The slope that is parallel to the direction of pedestrian travel.
Shared Use Path. A multi-use path designed primarily for use by bicyclists, pedestrians, and other authorized motorized and non-motorized users, for transportation purposes, and that may also be used for recreation. Shared use paths are physically separated from motor vehicle traffic by an open space or barrier and are either within the highway or other public right-of-way.
Sidewalk. That portion of a highway between the curb line, or the lateral line of a roadway, and the adjacent property line, or on easements of private property, that is paved or improved and intended for use by pedestrians.
Splitter Island. A median island used to separate opposing directions of traffic entering and exiting a roundabout.
Stair. A change in elevation comprised of at least one tread and riser. A curb is not a stair.
Standard Curb Height. The typical height of a curb according to local standards for a given road type, but usually between 3 inches (75 mm) and 9 inches (230 mm) high relative to the surface of the roadway or gutter.
Street. See Roadway.
Transit Shelter. A structure provided at a transit stop to provide passengers protection from the weather.
Transit Stop. An area that is designated for passengers to board or alight from buses, rail cars, and other transportation vehicles that operate on a fixed route or scheduled route, including bus stops and boarding platforms. This definition does not include intercity rail except where a stop is located in the public right-of-way.
Transitional Segment. The portion of a pedestrian circulation path that connects adjacent surfaces with different slopes or dimensions to provide a smooth transition.
Traveled Way. The portion of the roadway for the movement of vehicles, exclusive of the shoulder, berm, sidewalk, and parking lane.
Vibrotactile. A method of communicating information by touch using a vibrating surface.
Walk Interval. An interval during which the walking person (symbolizing “walk”) signal indication is displayed.
R201.1 Scope. All newly constructed pedestrian facilities and altered portions of existing pedestrian facilities for pedestrian circulation and use located in the public right-of-way shall comply with these guidelines.
Exception: Pedestrian facilities within vaults, tunnels, and other spaces used only by service personnel for maintenance, repair, or monitoring of equipment are not required to comply with these guidelines.
R201.2 Temporary and Permanent Pedestrian Facilities. The requirements in these guidelines shall apply to temporary and permanent pedestrian facilities and elements in the public right-of-way. Where a pedestrian circulation path or transit stop is temporarily closed by construction, maintenance operations, or similar conditions, an alternate pedestrian access route or transit stop shall be provided in accordance with R204.
R201.3 Buildings, Structures, and Elements. Buildings, structures, and elements in the public right-of-way that are not covered by the requirements in these guidelines shall comply with the applicable requirements in 36 CFR part 1191 (ADA & ABA Accessibility Guidelines). Examples include, but are not limited to, buildings, structures, and elements at safety rest areas or park and ride lots, temporary performance stages and reviewing stands.
R202.1 General. Alterations to pedestrian facilities shall comply with R202.
R202.2 Connection to Pedestrian Circulation Path. Where pedestrian facilities are altered, they shall be connected by a pedestrian access route complying with R302 to an existing pedestrian circulation path. A transitional segment may be used in the connection.
R202.3 Existing Physical Constraints. In alterations, where existing physical constraints make compliance with applicable requirements technically infeasible, compliance with these requirements is required to the maximum extent feasible. Existing physical constraints include, but are not limited to, underlying terrain, underground structures, adjacent developed facilities, drainage, or the presence of a significant natural or historic feature.
R202.4 Reduction in Access Prohibited. An alteration to pedestrian facilities or elements shall not decrease the accessibility of an existing pedestrian facility or element or an accessible connection to an adjacent building or site below the requirements in these guidelines.
R202.5 Alterations to Qualified Historic Facilities. Where the State Historic Preservation Officer or Advisory Council on Historic Preservation determines that compliance with an applicable requirement of these guidelines would threaten or destroy the historic significance of a qualified historic building or facility, compliance with that requirement is required to the maximum extent feasible without threatening or destroying the historic significance of the qualified historic building or facility.
R203.1 General. Where provided, the pedestrian facilities addressed in R203 shall contain or connect a pedestrian access route, and shall comply with these guidelines.
R203.2 Connection to Accessible Facilities. Pedestrian access routes shall connect accessible elements, spaces, and pedestrian facilities in accordance with R203.2.
R203.2.1 Connection to Accessible Facilities subject to the ADA. Pedestrian access routes subject to the ADA shall connect accessible elements, spaces, and pedestrian facilities required to be accessible and connect to accessible routes required by section 206.2.1 of appendix B to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines) that connect building and facility entrances to public streets and sidewalks.
Exception: Where elements are altered, on or adjacent to an existing pedestrian circulation path, the existing pedestrian circulation path need not be altered to provide a pedestrian access route complying with R202.2.
R203.2.2 Connection to Accessible Facilities subject to the ABA. Pedestrian access routes subject to the ABA shall connect accessible elements, spaces, and pedestrian facilities required to be accessible and connect to accessible routes required by section F206.2.1 of appendix C to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines) that connect building and facility entrances to public streets and sidewalks.
Exception: Where elements are altered, on or adjacent to an existing pedestrian circulation path, the existing pedestrian circulation path need not be altered to provide a pedestrian access route complying with R202.2.
R203.3 Pedestrian Circulation Paths. Pedestrian access routes complying with R302 shall be provided within pedestrian circulation paths, including sidewalks and shared use paths. Transitional segments may be used to connect new or altered pedestrian access routes to existing pedestrian circulation paths, and the differences between adjacent surface characteristics shall be minimized to provide a smooth transition.
R203.4 Crosswalks. A pedestrian access route complying with R302 shall be provided within and for the full length of a crosswalk, including medians and pedestrian refuge islands. Crosswalks shall comply with R306.
R203.5 Pedestrian At-Grade Rail Crossing. Where a pedestrian circulation path crosses at-grade rail tracks, a pedestrian access route complying with R302 shall be included within the pedestrian at-grade rail crossing. Pedestrian at-grade rail crossings shall comply with R306.
R203.6 Curb Ramps and Blended Transitions. A curb ramp, blended transition, or a combination of curb ramps and blended transitions shall be provided in accordance with R203.6 and shall comply with R304.
R203.6.1 Placement. Placement of curb ramps and blended transitions shall comply with R203.6.1.
R203.6.1.1 Crosswalks at an Intersection. At an intersection corner, one curb ramp or blended transition shall be provided for each crosswalk, or a single blended transition that spans all crosswalks at the intersection corner may be provided. Where pedestrian crossing is prohibited, curb ramps or blended transitions shall not be provided, and the pedestrian circulation path shall be either (a) separated from the roadway with landscaping or other non-prepared surface or (b) separated from the roadway by a detectable vertical edge treatment with a bottom edge 15 inches maximum above the pedestrian circulation path.
Exception: In alterations, where existing physical constraints make compliance with R203.6.1.1 technically infeasible, a single curb ramp complying with R304 shall be permitted at the apex of the intersection corner.
R203.6.1.2 Mid-Block and Roundabout Crosswalks. At a mid-block or roundabout crosswalk, curb ramps or blended transitions shall be provided on both ends of the crosswalk. Where pedestrian crossing is not intended, curb ramps or blended transitions shall not be provided, and the pedestrian circulation path shall be either (a) separated from the roadway with landscaping or other non-prepared surface or (b) separated from the roadway by a detectable vertical edge treatment with a bottom edge 15 inches maximum above the pedestrian circulation path.
R203.6.1.3 Parallel On-Street Parking. At parallel on-street parking spaces complying with the dimensions specified in R310.2.1, a curb ramp or blended transition shall be provided at either end of the parking space if needed to connect the parking space to a pedestrian access route.
R203.6.1.4 Perpendicular and Angled On-Street Parking and Passenger Loading Zones. At perpendicular and angled on-street parking spaces, and at passenger loading zones, a curb ramp or blended transition shall be provided if needed to connect the access aisle to a pedestrian access route.
R203.6.2 Alterations to Crosswalks. When alterations are made to crosswalks, curb ramps or blended transitions shall be provided on both ends of the crosswalk where the pedestrian access route crosses a curb.
R203.7 Pedestrian Overpasses and Underpasses. Pedestrian overpasses and underpasses shall contain a pedestrian access route complying with R302. Where an overpass, underpass, bridge, or similar structure is designed for pedestrian use only, or pedestrian and bicycle use only, and the approach slope to the structure exceeds 1:20 (5.0%), a ramp complying with R407, or an elevator or limited use/limited application elevator complying with sections 407 or 408 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines), shall be provided. Elevators and limited use/limited application elevators shall be unlocked and independently usable during the operating hours of the pedestrian facility served.
Exception: In alterations, where existing physical constraints make compliance with R203.7 technically infeasible, a platform lift complying with section 410 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines) shall be permitted.
R203.8 Ramps. Where provided, ramps shall comply with R407.
R203.9. Elevators and Limited Use/Limited Application Elevators. Where provided, elevators and limited use/limited application elevators shall comply with sections 407 or 408 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines).
R203.10 Platform Lifts. In alterations, where the use of elevators or limited use elevators is not technically feasible, platform lifts may be used and shall comply with section 410 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines).
R203.11 Doors, Doorways, and Gates. Doors, doorways, and gates that are part of a pedestrian access route shall comply with section 404 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines).
R204.1 Alternate Pedestrian Access Route. When a pedestrian circulation path is temporarily not accessible due to construction, maintenance operations, closure, or other similar conditions, an alternate pedestrian access route must be provided and comply with R303 and R402.
Exception: If establishing or maintaining an alternate pedestrian access route is technically infeasible due to site conditions or existing physical constraints, an alternate means of providing access for pedestrians with disabilities shall be permitted.
R204.2 Alternate Transit Stops. Where accessible transit stops are temporarily not accessible due to construction, maintenance operations, or other similar conditions, alternate transit stops complying with R309 shall be provided.
R204.3 Alternate Passenger Loading Zones. Where a permanently designated passenger loading zone is temporarily not accessible due to construction, maintenance operations, or other similar conditions, and a temporary passenger loading zone is provided, it must comply with R311.
R205.1 General. Detectable warning surfaces shall be provided in accordance with R205.
R205.2 Curb Ramps and Blended Transitions. Curb ramps shall have detectable warning surfaces complying with R205.2.1. Blended transitions shall have detectable warning surfaces complying with R205.2.2.
Exception: Detectable warning surfaces are not required on curb ramps and blended transitions used exclusively to connect passenger loading zones, accessible parallel on-street parking spaces, and access aisles for perpendicular and angled parking spaces to pedestrian access routes.
R205.2.1 Curb Ramps. Curb ramps located at crosswalks shall have detectable warning surfaces complying with R305.1 and either R305.2.1 or R305.2.2.
R205.2.2 Blended Transitions. Blended transitions located at crosswalks shall have detectable warning surfaces complying with R305.1 and R305.2.3.
R205.3 Pedestrian Refuge Islands. Cut-through pedestrian refuge islands shall have detectable warning surfaces complying with R305.1 and R305.2.4.
R205.4 Pedestrian At-Grade Rail Crossings. Pedestrian at-grade rail crossings not located within a street shall have detectable warning surfaces complying with R305.1 and R305.2.5. Pedestrian at-grade rail crossings located within a street at a crosswalk shall not have detectable warning surfaces adjacent to the railway.
R205.5 Boarding Platforms. Boarding platforms at transit stops that are not protected by screens or guards along the sides of the boarding and alighting areas facing the transit vehicles shall have detectable warning surfaces complying with R305.1 and R305.2.6.
R205.6 Sidewalk and Street-Level Rail Boarding and Alighting Areas. Boarding and alighting areas at sidewalk or street-level transit stops for rail vehicles that are not protected by screens or guards along the side of the boarding and alighting areas facing the rail vehicles shall have detectable warning surfaces complying with R305.1 and R305.2.7.
R205.7 Driveways. Pedestrian circulation paths at driveways controlled with yield or stop control devices or traffic signals shall have detectable warning surfaces complying with R305.2.8.
R206.1 General. Where provided, pedestrian signal heads and pedestrian activated warning devices shall comply with R206. The accessible features required by these guidelines shall be available at all times.
R206.2 Traffic Control Signals and Hybrid Beacons with Pedestrian Signal Heads. Where pedestrian signal heads are provided at crosswalks, the walk indication shall comply with R308. Pedestrian signal heads must have a pedestrian push button complying with R307, except for R307.7, or passive detection or pretimed operation that activates audible and vibrotactile indications complying with R308.
R206.3 Pedestrian Activated Warning Devices. Pedestrian activated warning devices shall have pedestrian push buttons complying with R307, except for R307.2 and R307.6, or passive detection that operates audible indications complying with R307.7.
R207.1 General. Protruding objects and vertical clearance along any portion of a pedestrian circulation path shall comply with R402.
R208.1 General. Where provided, signs intended solely for pedestrians, including transit signs, and all signs serving shared use paths, shall comply with R410.
Exceptions: 1. Transit schedules, timetables, and maps are not required to comply with R410.
2. Signs mounted immediately above or incorporated into a push button detector unit are not required to comply with R410.
R209.1 General. Where provided, street furniture shall comply with the applicable requirements in R209.
R209.2 Drinking Fountains. Drinking fountains shall comply with sections 602.1 through 602.6 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines).
R209.3 Public Street Toilets. Public street toilets shall be provided in accordance with R209.3.
R209.3.1 Permanent Public Street Toilets. Permanent public street toilets shall comply with sections 603 through 610 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines).
R209.3.2 Portable Toilet Units. Portable toilet units shall comply with section 603 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines). Where multiple single user portable toilet units are clustered at a single location, at least 5 percent, but no fewer than one of each type of the toilet units at each cluster shall be required to comply with 603 Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines). Portable toilet units complying with section 603 shall be identified by the International Symbol of Accessibility complying with R411.
R209.4 Tables. At least 5 percent of tables at each group of adjacent tables, but no fewer than one, shall comply with section 902 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines).
R209.5 Sales or Service Counters. Sales or service counters shall comply with section 904.4 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines).
Exception 1: Sales or service counters that are located in a building subject to the ADA that is not itself in the public right-of-way but that directly serve the public right-of-way, such as at a service window accessed from the sidewalk, may comply with section 227.3 of Appendix B to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines).
Exception 2: Sales or service counters that are located in a building subject to the ABA that is not itself in the public right-of-way but that directly serve the public right-of-way, such as at a service window accessed from the sidewalk, may comply with section F227.3 of Appendix C to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines).
R209.6 Benches. Benches, other than those that are part of tables complying with R209.4, shall comply with R209.6.
R209.6.1 Benches at Transit Stops and Shelters. Benches provided at transit stops shall have clear space complying with R404 next to either end of the bench, or if the bench has no end, such as a circular bench, the clear space shall either be integral to the bench or no more than 18 inches (455 mm) from the front of the bench. Benches provided within transit shelters shall have clear space complying with R309.2.2.
R209.6.2 Benches Not at Transit Stops and Shelters. At least 50 percent, but no less than one, of benches at each group of adjacent benches shall provide clear space complying with R404. The clear space shall be located next to either end of the bench, or if the bench has no end, such as a circular bench, the clear space shall either be integral to the bench or no more than 18 inches (455 mm) from the front of the bench.
R209.7 Operable Parts of Other Fixed Elements. Operable parts of other fixed elements to be used by pedestrians shall comply with R403.
R210.1 General. Where provided, transit stops and transit shelters shall comply with R309.
R210.2 Fare Vending Machines. Where provided at transit stops and transit shelters, fare vending machines shall comply with R403 and section 707 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines), except for 707.2 and 707.3.
R210.3. Operable Parts of Other Fixed Elements. Operable parts of other fixed elements at transit stops and shelters intended to be used by pedestrians shall comply with R403.
R211.1 General. Where on-street parking is provided and is metered or designated by signs or pavement markings, accessible parking spaces complying with R310 shall be provided in accordance with R211 and Table R211.
Exceptions: 1. On-street parking spaces designated exclusively as residential parking shall not be required to comply with R211 and shall not be counted for purposes of Table R211.
2. On-street parking spaces designated exclusively for commercial or law enforcement vehicles shall not be required to comply with R211 and shall not be counted for purposes of Table R211.
3. Where on-street parking spaces are altered, the requirements of R211 shall apply only to the affected parking spaces until the minimum number of accessible on-street parking spaces as specified in Table R211 are provided.
R211.2 Parking on Block Perimeter. Where parking spaces are provided on a block perimeter and are metered or designated by signs or pavement markings, accessible parking spaces complying with R310 shall be provided in accordance with Table R211. Where parking is metered or designated by signs or pavement markings, but individual spaces are not marked, each 20 feet (6.1 m) of block perimeter where parking is designated shall be counted as one parking space.
R211.3 Parking not on Block Perimeter. Where parking spaces are provided on a section of a street that is not part of a block perimeter, accessible parking spaces complying with R310 shall be provided in accordance with Table R211. Where parking is metered or designated by signs or pavement markings, but individual spaces are not marked, each 20 feet (6.1 m) of street where parking is designated shall be counted as one parking space.
Table R211 On-Street Parking Spaces
| Total number of
metered or designated parking spaces | Minimum required number of |
|---|---|
| 1 to 25 | 1. |
| 26 to 50 | 2. |
| 51 to 75 | 3. |
| 76 to 100 | 4. |
| 101 to 150 | 5. |
| 151 to 200 | 6. |
| 201 and over | 4 percent of total. |
R212.1 General. Where permanently designated passenger loading zones other than transit stops are provided, at least one accessible passenger loading zone complying with R311 shall be provided in every continuous 100 feet (30 m) of loading zone space, or fraction thereof.
R213.1 General. Where provided on pedestrian circulation paths, stairs shall comply with R408 and escalators shall comply with section 810.9 of Appendix D to 36 CFR part 1191 (ADA & ABA Accessibility Guidelines). Stairs and escalators shall not be part of pedestrian access routes.
R214.1 General. Where provided on pedestrian circulation paths, handrails shall comply with R409.
R301.1 Scope. The technical requirements in Chapter 3 shall apply where required by Chapter 2 or where referenced by a requirement in these guidelines.
R302.1 General. Pedestrian access routes shall comply with R302.
R302.2 Continuous Clear Width. Except as provided in R302.2.1 and R302.2.2, the continuous clear width of pedestrian access routes shall be 48 inches (1220 mm) minimum, exclusive of the width of any curb.
R302.2.1 Medians and Pedestrian Refuge Islands. The clear width of pedestrian access routes crossing medians and pedestrian refuge islands shall be 60 inches (1525 mm) minimum, except that where shared use paths cross medians and pedestrian refuge islands the clear width of the pedestrian access route shall be 60 inches (1525 mm) minimum or at least as wide as the crosswalk, whichever is greater.
R302.2.2 Shared Use Paths. On shared use paths, the clear width of the pedestrian access route shall extend the full width provided for pedestrian circulation on the path. Obstructions, such as bollards, shall not reduce the clear width of the pedestrian access route to less than 48 inches (1220 mm) measured from the edge of the obstruction.
R302.3 Passing Spaces. Where the clear width of pedestrian access routes is less than 60 inches (1525 mm), passing spaces shall be provided at intervals of 200 feet (61 m) maximum. Passing spaces shall be 60 inches (1525 mm) minimum by 60 inches (1525 mm) minimum. Passing spaces and pedestrian access routes are permitted to overlap.
R302.4 Grade. The grade of pedestrian access routes shall comply with R302.4, except the grade of curb ramps and blended transitions shall comply with R304 and the grade of ramps shall comply with R407.
R302.4.1 Within Highway Right-of-Way. Except as provided in R302.4.3, where a pedestrian access route is contained within a highway right-of-way, the grade of the pedestrian access route shall not exceed 1:20 (5.0%).
Exception: Where the grade established for the adjacent street exceeds 1:20 (5.0%), the grade of the pedestrian access route shall not exceed the grade established for the adjacent street.
R302.4.2 Not Within Highway Right-of-Way. Where a pedestrian access route is not contained within a highway right-of-way, the grade of the pedestrian access route shall not exceed 1:20 (5.0%).
R302.4.3 Within a Crosswalk. Where a pedestrian access route is contained within a crosswalk, the grade of the pedestrian access route shall be 1:20 (5.0%) maximum.
Exception: Where roadway design requires superelevation greater than 1:20 (5.0%) at the location of a crosswalk, the grade of the pedestrian access route within the crosswalk may be the same as the superelevation.
R302.5 Cross Slope. The cross slope of a pedestrian access route shall comply with R302.5.
R302.5.1 Not Contained Within a Crosswalk. The cross slope of a pedestrian access route not contained within a crosswalk shall be 1:48 (2.1%) maximum.
Exception: The portion of a pedestrian access route within a street that connects an accessible parallel on-street parking space to the nearest crosswalk at the end of the block face or the nearest midblock crosswalk is not required to comply with R302.5.
R302.5.2 Contained Within a Crosswalk. The cross slope of a pedestrian access route contained within a crosswalk shall comply with R302.5.2.
R302.5.2.1 Crosswalk with Yield or Stop Control Devices. Where a pedestrian access route is contained within a crosswalk at an intersection approach with yield or stop control devices, the cross slope of the pedestrian access route shall be 1:48 (2.1%) maximum.
R302.5.2.2 Crosswalk at Uncontrolled Approach. Where a pedestrian access route is contained within a crosswalk at an uncontrolled approach, the cross slope of the pedestrian access route shall be 1:20 (5.0%) maximum.
R302.5.2.3 Crosswalk with Traffic Control Signal or Pedestrian Hybrid Beacon. Where a pedestrian access route is contained within a crosswalk at an intersection approach controlled by a traffic control signal or pedestrian hybrid beacon, the cross slope of the pedestrian access route shall be 1:20 (5.0%) maximum.
R302.5.2.4 Midblock and Roundabout Crosswalks. The cross slope of a pedestrian access route within a midblock crosswalk or a crosswalk at a roundabout shall not exceed the street grade.
R302.6 Surfaces. The walking surfaces of pedestrian access routes, elements, and spaces that are required to be accessible shall be stable, firm, and slip resistant and shall comply with R302.6.
R302.6.1 Grade Breaks. Grade breaks shall be flush.
R302.6.2 Changes in Level. Changes in level of
R302.6.3 Horizontal Openings. Horizontal openings in ground surfaces, such as those in gratings and joints, other than flangeway gaps (see R302.6.4), shall not allow passage of a sphere larger than
R302.6.4 Surfaces at Pedestrian At-Grade Rail Crossings. Surfaces at pedestrian at-grade rail crossings shall comply with R302.6.4.
R302.6.4.1 Surface Alignment. Where a pedestrian access route crosses rails at grade, the pedestrian access route surface shall be level and flush with the top of rail at the outer edges of the rails, and the surface between the rails shall be aligned with the top of rail.
R302.6.4.2 Flangeway Gaps. Flangeway gaps shall comply with R302.6.4.2.
R302.6.4.2.1 Flangeway Gaps at Tracks Subject to FRA Safety Regulations. At pedestrian at-grade rail crossings that cross tracks that are subject to safety regulations at 49 CFR part 213, issued by the Federal Railroad Administration, flangeway gaps shall be 3 inches (75 mm) wide maximum.
R302.6.4.2.2 Flangeway Gaps at Tracks Not Subject to FRA Safety Regulations. At pedestrian at-grade rail crossings that cross tracks that are not subject to safety regulations at 49 CFR part 213, issued by the Federal Railroad Administration, flangeway gaps shall be 2
R303.1 General. Alternate pedestrian access routes shall comply with R303.
R303.2 Signs. Signs identifying alternate pedestrian access routes shall be provided in advance of decision points and shall comply with R410. Proximity actuated audible signs or other non-visual means within the public right-of-way of conveying the information that identifies the alternate pedestrian access route shall also be provided.
R303.3 Surface. Alternate pedestrian access route surfaces shall comply with R302.6 or shall not be less accessible than the surface of the temporarily closed pedestrian circulation path.
R303.4 Continuous Clear Width. The minimum continuous clear width of alternate pedestrian access routes shall be 48 inches (1220 mm) exclusive of the width of any curb.
Exception: Where the alternate pedestrian access route utilizes an existing pedestrian circulation path, the width shall not be less than the width of the temporarily closed pedestrian circulation path.
R303.5 Curb Ramp or Blended Transition. Where an alternate pedestrian access route crosses a curb, a curb ramp or blended transition complying with R304 shall be provided.
R303.6 Detectable Edging of Channelizing Devices. Where a channelizing device is used to delineate an alternate pedestrian access route, continuous detectable edging complying with R303.6 shall be provided throughout the length of the route.
Exception: Where pedestrians or vehicles turn or cross, gaps in the detectable edging are permitted.
R303.6.1 Top. The top of the top detectable edging shall be no lower than 32 inches (815 mm) above the walking surface and be free of sharp or abrasive surfaces.
R303.6.2 Bottom. The bottom of the bottom detectable edging shall be 2 inches (51 mm) maximum above the walking surface.
R303.7 Pedestrian Signal Heads. Where temporary pedestrian signal heads are provided at a crosswalk that is part of an alternate pedestrian access route, pedestrian pushbuttons or passive detection devices shall be provided and shall comply with R307.
R304.1 General. Curb ramps and blended transitions shall comply with R304 and have detectable warning surfaces in accordance with R205.
R304.2 Perpendicular Curb Ramps. Perpendicular curb ramps shall comply with R304.2 and R304.5.
R304.2.1 Running Slope. The running slope of a curb ramp shall be perpendicular to the curb or gutter grade break. The running slope of the curb ramp shall be 1:12 (8.3%) maximum.
Exception: Where the curb ramp length must exceed 15 feet (4.6 m) to achieve a 1:12 (8.3%) running slope, the curb ramp length shall extend at least 15 feet (4.6 m) and may have a running slope greater than 1:12 (8.3%).
R304.2.2 Cross Slope. The cross slope of a curb ramp run shall be 1:48 (2.1) maximum.
Exception: At crosswalks, the cross slope of the curb ramp run shall be permitted to be equal to or less than the cross slope of the crosswalk as specified by R302.5.
R304.2.3 Grade Breaks. Grade breaks at the top and bottom of a curb ramp run shall be perpendicular to the direction of the curb ramp run. Grade breaks shall not be permitted on the surfaces of curb ramp runs and landings. Surface slopes that meet at grade breaks shall be flush.
R304.2.4 Clear Area. A clear area 48 inches (1220 mm) wide minimum by 48 inches long (1220 mm) minimum shall be provided beyond the bottom grade break of the perpendicular curb ramp run and within the width of the crosswalk. At shared use paths, the clear area shall be as wide as the shared use path. The clear area shall be located wholly outside the vehicle travel lanes, including bicycle lanes, that run parallel to the crosswalk. The running slope of the clear area shall be 1:20 (5.0%) maximum. The cross slope of the clear area shall be as specified by R302.5.
R304.2.5 Landing. When a change in direction is necessary to access a curb ramp from a pedestrian access route, a landing shall be provided at the top of the curb ramp. The landing shall be 48 inches (1220 mm) wide minimum by 48 inches (1220 mm) long minimum. At shared use paths, the landing shall be as wide as the shared use path. Where a landing serves only one curb ramp, the landing slope measured perpendicular to the curb ramp run shall be equal to or less than the cross slope of the curb ramp run, and the landing slope measured parallel to the curb ramp run shall be 1:48 (2.1%) maximum. Where a landing serves two curb ramps, the landing slope in either direction of travel shall not exceed the cross slope of the crosswalk parallel to the direction of travel as specified by R302.5.
R304.2.6 Side Treatments. Where a pedestrian circulation path crosses the side of a curb ramp, the side of the curb ramp shall be flared. The slope of the flared side shall be 1:10 (10.0%) maximum, measured parallel to the adjacent curb line.
R304.2.7 Connection to Pedestrian Facilities. Perpendicular curb ramps or their landings shall be connected to adjacent pedestrian facilities by pedestrian access routes complying with R302. A transitional segment may be used in the connection.
R304.3 Parallel Curb Ramps. Parallel curb ramps shall comply with R304.3 and R304.5.
R304.3.1 Running Slope. The running slope of the curb ramp run shall be parallel to the curb and shall be 1:12 (8.3%) maximum.
Exception: Where the curb ramp run length must exceed 15 feet (4.6 m) to achieve a 1:12 (8.3%) running slope, the curb ramp run length shall extend at least 15 feet (4.6 m) and may have a running slope greater than 1:12 (8.3%).
R304.3.2 Cross Slope. The cross slope of the curb ramp run shall be 1:48 (2.1%) maximum.
R304.3.3 Grade Breaks. Grade breaks at the top and bottom of a curb ramp run shall be perpendicular to the direction of the curb ramp run. Grade breaks shall not be permitted on the surfaces of curb ramp runs or landings. Surface slopes that meet at grade breaks shall be flush.
R304.3.4 Landings. Landings shall be provided at the bottom of parallel curb ramps. Landings shall be 48 inches (1220 mm) wide minimum by 48 inches (1220 mm) long minimum. The slope of the landing, measured parallel to the direction of travel on the curb ramp run, shall be permitted to be equal to or less than the slope of the roadway or the cross slope of the crosswalk as specified by R302.5. The cross slope of the landing shall be 1:48 (2.1%) maximum measured perpendicular to the direction of travel on the curb ramp run.
R304.4 Blended Transitions. Blended transitions shall comply with R304.4 and R304.5.
R304.4.1 Running Slope. The running slope of blended transitions shall be 1:20 (5.0%) maximum.
R304.4.2 Cross Slope. The cross slope of blended transitions shall be equal to or less than the cross slope of the crosswalk as specified by R302.5.
R304.4.3 Bypass. Where a blended transition serving more than one pedestrian circulation path has a running slope greater than 1:48 (2.1%), a pedestrian access route shall be provided so that a pedestrian not crossing the street may bypass the blended transition.
R304.5 Common Requirements. Curb ramps and blended transitions shall comply with R304.5.
R304.5.1 Width. The width of curb ramp runs (excluding any flared sides) and blended transitions shall comply with R304.5.1.1 or R304.5.1.2, as applicable.
R304.5.1.1 Curb Ramps and Blended Transitions Not on Shared Use Paths. The clear width of curb ramp runs (excluding any flared sides) and blended transitions not on shared use paths shall be 48 inches (1220 mm) minimum.
R304.5.1.2 Curb Ramps and Blended Transitions on Shared Use Paths. On shared use paths, the width of curb ramp runs (excluding any flared sides) and blended transitions shall be equal to the width of the shared use path.
R304.5.2 Change of Grade. At gutters and streets where a change of grade occurs adjacent to curb ramps and blended transitions, the change of grade shall comply with the requirements contained in (A) or (B) below:
A. The change of grade shall not exceed 13.3 percent, or
B. A transitional space shall be provided at the bottom of the running slope of the curb ramp run or blended transition. The transitional space shall extend 24 inches (610 mm) minimum in the direction of pedestrian travel and the full width of the curb ramp run or blended transition. Transitional spaces shall have running slopes of 1:48 (2.1%) maximum and cross slopes no greater than the cross slope of the crosswalk as specified by R302.5.
R304.5.3 Crosswalks. Perpendicular curb ramp runs, parallel curb ramp landings, and 48 inches (1220 mm) minimum width of blended transitions, except those at shared use paths, shall be contained wholly within the width of the crosswalks they serve. At shared use paths, the full width of a perpendicular curb ramp run, parallel curb ramp landing, or the blended transition shall be contained wholly within the width of the crosswalk it serves.
R304.5.4 Surfaces. Surfaces of curb ramps and blended transitions shall comply with R302.6 except that changes in level are not permitted.
R305.1 General. Detectable warning surfaces shall consist of truncated domes in a square or radial grid pattern and shall comply with R305.
R305.1.1 Dome Size. The truncated domes shall have a base diameter of 0.9 inches (23 mm) minimum and 1.4 inches (36 mm) maximum, a top diameter of 50 percent of the base diameter minimum and 65 percent of the base diameter maximum, and a height of 0.2 inches (5.1 mm). When detectable warning surface tiles are cut to fit, partial domes are permitted along the cut edges.
R305.1.2 Dome Spacing. The truncated domes shall have a center-to-center spacing of 1.6 inches (41 mm) minimum and 2.4 inches (61 mm) maximum, and a base-to-base spacing of 0.65 inches (17 mm) minimum, measured between the most adjacent domes.
Exceptions: 1. When detectable warning surfaces are cut to fit, center-to-center spacing measured between domes adjacent to cut edges shall not exceed twice the normal spacing between domes not adjacent to cut edges.
2. Dome spacing requirements do not apply at a gap in a detectable warning surface at an expansion joint provided that the detectable warning surface aligns with both edges of the expansion joint.
R305.1.3 Contrast. Detectable warning surfaces shall contrast visually with adjacent walking surfaces, either light-on-dark or dark-on-light.
R305.1.4 Surface Size. Detectable warning surfaces shall extend 24 inches (610 mm) minimum in the direction of pedestrian travel. The width of detectable warning surfaces shall be as follows:
A. At curb ramps and blended transitions, detectable warning surfaces shall extend the full width of the curb ramp run (excluding any flared sides), blended transition, or landing.
B. At cut-through pedestrian refuge islands, detectable warning surfaces shall extend the full width of the pedestrian circulation path opening.
C. At pedestrian at-grade rail crossings not located within a street, detectable warning surfaces shall extend the full width of the pedestrian circulation path.
D. Where required at boarding platforms, detectable warning surfaces shall extend the full length of the unprotected areas of the platform.
E. At boarding and alighting areas at sidewalk or street level transit stops for rail vehicles, detectable warning surfaces shall extend the full length of the unprotected area of the transit stop.
R305.2 Location. The location of detectable warning surfaces shall comply with R305.2. Where a concrete border is required for proper installation of a detectable warning surface, a concrete border not exceeding 2 inches (51 mm) shall be permitted on all sides of the detectable warning surface except between the detectable warning surface and the edge of pavement where a setback is already permitted.
R305.2.1 Perpendicular Curb Ramps. On perpendicular curb ramps, detectable warning surfaces shall be located as follows:
A. Where the ends of the bottom grade break are in front of the back of curb or at the edge of pavement where there is no curb, the detectable warning surface shall be placed at the back of curb or no greater than 6 inches (150 mm) from the edge of pavement where there is no curb.
B. Where the ends of the bottom grade break are behind the back of curb or edge of pavement where there is no curb and the distance from both ends of the bottom grade break to the back of curb or edge of pavement where there is no curb is 60 inches (1525 mm) or less, the detectable warning surface shall be placed on the ramp run at the bottom grade break.
C. Where the ends of the bottom grade break are behind the back of curb or edge of pavement where there is no curb and the distance from either end of the bottom grade break to the back of curb or edge of pavement where there is no curb is more than 60 inches (1525 mm), the detectable warning surface shall be placed on the clear area so that both front corners of the detectable warning surfaces are at the back of curb or no greater than 6 inches (150 mm) from the edge of pavement where there is no curb.
R305.2.2 Parallel Curb Ramps. On parallel curb ramps, detectable warning surfaces shall be located on the landing at either the back of curb or the edge of pavement where there is no curb.
R305.2.3 Blended Transitions. On blended transitions, detectable warning surfaces shall be located on the blended transition so that both front corners of the detectable warning surfaces are at the back of curb or no greater than 6 inches (150 mm) from the edge pavement where there is no curb.
R305.2.4 Pedestrian Refuge Islands. At cut-through pedestrian refuge islands, detectable warning surfaces shall be located no greater than 6 inches (150 mm) from the edges of the pedestrian refuge island or at back of curb and shall be separated by a 24 inch (610 mm) minimum length of surface in the direction of travel without detectable warning surfaces.
R305.2.5 Pedestrian At-Grade Rail Crossings. At pedestrian at-grade rail crossings not located within a street, detectable warning surfaces shall be located on each side of the rail crossing. The edge of the detectable warning surface nearest the rail crossing shall be 6 feet (1.8 m) minimum and 15 feet (4.6 m) maximum from the centerline of the nearest rail. Where pedestrian gates are provided, detectable warning surfaces shall be located on the side of the gate opposite the rail. Pedestrian gates shall not overlap detectable warning surfaces.
R305.2.6 Boarding Platforms. At boarding platforms for transit vehicles, detectable warning surfaces shall be located at the boarding edge of the platform.
Exception: Where a curb is present at the boarding edge of the platform, the detectable warning surface may be placed at the back of curb.
R305.2.7 Sidewalk and Street-Level Rail Boarding and Alighting Areas. At boarding and alighting areas at sidewalk or street-level transit stops for rail vehicles, detectable warning surfaces shall be located at the edge of the boarding and alighting area closest to the rail vehicles.
R305.2.8 Driveways. Where driveways are controlled with yield or stop control devices or traffic signals, detectable warning surfaces shall be provided on the pedestrian circulation path where the pedestrian circulation path meets the driveway.
R306.1 General. Crosswalks shall comply with R306.
R306.2 Pedestrian Signal Phase Timing. Where a traffic control signal with pedestrian signal indications is provided at a crosswalk, pedestrian signal phase timing shall be based on a pedestrian clearance time that is calculated using a pedestrian walking speed of 3.5 ft/s (1.1 m/s) or less from the location of the pedestrian push button to a pedestrian refuge island or the far side of the traveled way. The walk interval shall be 7 seconds minimum. Where the pedestrian clearance time is calculated to a pedestrian refuge island, an additional pedestrian push button or passive detection device shall be provided on the pedestrian refuge island.
Exception: If a passive pedestrian detection device is used to automatically adjust the pedestrian clearance time based on the pedestrian’s actual clearance of the crosswalk, a faster walking speed may be used.
R306.3 Accessible Walk Indication. An accessible walk indication complying with R308.2 shall have the same duration as the walk interval.
Exception: Where the pedestrian signal rests in walk, the accessible walk indication may be limited to the first 7 seconds of the walk interval. If the pedestrian signal is resting in walk and there is sufficient time remaining to provide an accessible walk interval before the beginning of the pedestrian change interval, the accessible walk indication may be recalled by a button press.
R306.4 Roundabouts. Where pedestrian circulation paths are provided at roundabouts, they shall comply with R306.4.
R306.4.1 Edge Detection. The street side edge of the pedestrian circulation path at the approach and along the circulatory roadway of the roundabout shall comply with R306.4.1.1 where not attached to the curb, or R306.4.1.2 where attached to the curb. Detectable warning surfaces shall not be used for roundabout edge detection.
R306.4.1.1 Separation. Where pedestrian crossing is not intended, the pedestrian circulation path shall be separated from the curb, crosswalk to crosswalk, with landscaping or other nonprepared surface 24 inches (610 mm) wide minimum.
R306.4.1.2 Vertical Edge Treatment. Where pedestrian crossing is not intended, a curb-attached pedestrian circulation path shall have a continuous and detectable vertical edge treatment along the street side of the pedestrian circulation path, from crosswalk to crosswalk. The bottom edge of the vertical edge treatment shall be 15 inches (380 mm) maximum above the pedestrian circulation path.
R306.4.2 Crosswalk Treatments. Each multi-lane segment of the roundabout containing a crosswalk shall provide a crosswalk treatment consisting of one or more of the following: a traffic control signal with a pedestrian signal head; a pedestrian hybrid beacon; a pedestrian actuated rectangular rapid flashing beacon; or a raised crossing.
R306.5 Channelized Turn Lanes. Crosswalks at multi-lane channelized turn lanes shall provide treatments consisting of one or more of the following: a traffic control signal with a pedestrian signal head; a pedestrian hybrid beacon; a pedestrian actuated rectangular rapid flashing beacon; or a raised crossing.
R307.1 General. Pedestrian push buttons and passive pedestrian detection devices shall comply with R307. Operable parts of pedestrian push buttons shall comply with R403.
R307.2 Activation. Pedestrian push buttons and passive detection devices shall activate the accessible pedestrian signals and, where applicable, the walk interval.
R307.3 Extended Push Button Press. Where an extended push button press is used to provide any additional features, a push button press of less than one second shall actuate only the pedestrian timing and any associated accessible walk indication, and a push button press of one second or more shall actuate the pedestrian timing, any associated accessible walk indication, and any additional features. If additional crossing time is provided by means of an extended pushbutton press, a sign so indicating shall be mounted adjacent to or integral with the pedestrian push button.
R307.4 Location. Pedestrian push buttons shall be located no greater than 5 feet from the side of a curb ramp run or the edge of the farthest associated crosswalk line from the center of the intersection. Pedestrian push buttons shall be located between 1.5 and 10 feet from the edge of the curb or pavement.
R307.4.1 Two Pedestrian Push Buttons on Same Corner. Where two pedestrian push buttons are provided on the same corner, they shall be 10 feet or more apart.
Exception: In alterations, where technically infeasible to provide 10 feet separation between pedestrian push buttons on the same corner, a pedestrian push button information message complying with R308.3.2 shall be provided.
R307.5 Push Button Orientation. The face of the push button shall be parallel to its associated crosswalk.
R307.6 Audible and Vibrotactile Walk Indications for Pedestrian Signal Heads. Pedestrian push buttons or passive detection devices shall activate audible and vibrotactile walk indications complying with R308.
R307.7 Audible and Vibrotactile Indication for Pedestrian Activated Warning Devices Without a Walk Indication. Where a pedestrian push button or a passive detection device is provided for pedestrian activated warning devices, such as rectangular rapid flashing beacons, the pedestrian push button or passive detection device shall activate a speech message that indicates the status of the beacon in lieu of an audible walk indication. The speech message volume shall comply with R308.4. Where a pedestrian push button is provided, it shall not include vibrotactile features indicating a walk interval.
R307.8 Locator Tone. Pedestrian push buttons shall incorporate a locator tone complying with R307.8.
R307.8.1 Duration. Locator tones shall have a duration of 0.15 seconds or less and repeat at one-second intervals except when another audible indication from the same device is active. When another audible indication from the same device is active, the locator tone shall be silenced.
Exception: A locator tone may be silenced if a passive detection system activates the locator tone when a pedestrian is within a 12-foot radius of the pedestrian push button.
R307.8.2 Locator Tone in Response to Ambient Sound. Pedestrian push button locator tones shall be intensity responsive to ambient sound and shall be audible 6 to 12 feet from the push button, or to the building line, whichever is less. The push button locator tone shall be louder than ambient sound up to a maximum volume of 5 dBA louder than ambient sound. Automatic volume adjustment in response to ambient traffic sound level shall be a maximum volume of 100 dBA.
R307.8.3 Locator Tone and Audible Beaconing. Where audible beaconing is used, the volume of the push button locator tone during the pedestrian change interval of the called pedestrian phase shall be increased and operated in one of the following ways:
A. The louder audible walk indication and louder locator tone comes from the far end of the crosswalk, as pedestrians cross the street;
B. The louder locator tone comes from both ends of the crosswalk; or
C. The louder locator tone comes from an additional speaker that is aimed at the center of the crosswalk and that is mounted on a pedestrian signal head.
R307.8.4 Locator Tone and Traffic Control Signal in Flashing Mode. When the traffic control signal is operating in a flashing mode, pedestrian push button locator tones shall remain active, and the pedestrian push button shall activate a speech message that communicates the operating mode of the traffic control signal. Where traffic control signals or pedestrian hybrid beacons are activated from a flashing or dark mode to a stop-and-go mode by pedestrian actuations, a speech message communicating the operating status of the traffic control signal is not required.
R307.9 Tactile Arrow. Pedestrian push buttons shall have a tactile arrow with high visual contrast that is aligned parallel to the direction of travel on their associated crosswalks.
R308.1 General. Accessible pedestrian signal walk indications shall comply with R308.
R308.2 Audible and Vibrotactile Walk Indications. Accessible pedestrian signals shall have an audible and vibrotactile walk indication during the walk interval only. The audible walk indication shall be audible from the beginning of the associated crosswalk. Following the audible and vibrotactile walk indication and during the pedestrian change interval, accessible pedestrian signals shall revert to the pedestrian push button locator tone.
R308.3 Audible Walk Indications. Audible walk indications shall comply with R308.3.
R308.3.1 Percussive Tone. Where an accessible pedestrian signal is provided at a single crossing or where two accessible pedestrian signals are 10 feet or greater from each other at a corner, the audible walk indication shall be a percussive tone and repeat eight to ten ticks per second with multiple frequencies and a dominant component at 880 Hz.
R308.3.2 Speech Walk Message. In alterations, where it is technically infeasible to provide 10 feet separation between pedestrian push buttons on the same corner, the audible walk indication for each signal shall be a speech walk message that complies with R308.3.2.
R308.3.2.1 Speech Information Message when Walk Interval is Not Timing. Where speech push button information messages are made available at a pretimed signal or by actuating the accessible pedestrian push button or passive detection device, they shall only be actuated when the walk interval is not timing. They shall begin with the term “Wait,” followed by intersection identification information modeled after: “Wait to cross Broadway at Grand.” If information on intersection signalization or geometry is also given, it shall follow the intersection identification information.
R308.3.2.2 Speech Walk Message during Pedestrian Phasing Concurrent with Vehicular Phasing. Speech walk messages that are used at intersections having pedestrian phasing that is concurrent with vehicular phasing shall be patterned after the model: “Broadway. Walk sign is on to cross Broadway.”
R308.3.2.3 Speech Walk Message during Exclusive Pedestrian Phasing. Speech walk messages that are used at intersections having exclusive pedestrian phasing shall be patterned after the model: “Walk sign is on for all crossings.”
R308.3.2.4 Speech Walk Message and Pilot Light. If a pilot light is used at an accessible pedestrian signal location, each actuation shall be accompanied by the speech message, “Wait.”
R308.4 Volume. Audible walk indications shall be louder than ambient sound up to a maximum volume of 5 dBA louder than ambient sound. Automatic volume adjustment in response to ambient traffic sound level shall be a maximum volume of 100 dBA.
Exception: Where audible beaconing is provided in response to an extended push button press, the beaconing can exceed 5 dBA louder than ambient sound.
R308.5 Vibrotactile Walk Indication. The pedestrian push button shall vibrate during the walk interval.
R309.1 Transit Stops. Transit stops shall comply with R309.1.
R309.1.1 Boarding and Alighting Areas. Boarding and alighting areas at sidewalk or street-level transit stops must serve each accessible vehicle entry and exit and shall comply with R309.1.1 and R309.1.3.
R309.1.1.1 Dimensions. Boarding and alighting areas shall have a clear length of 96 inches (2440 mm) minimum, measured perpendicular to the face of the curb or street edge, and a clear width of 60 inches (1525 mm) minimum, measured parallel to the street.
R309.1.1.2 Slope. The slope of boarding and alighting areas measured parallel to the street shall be the same as the grade of the street. The slope of boarding and alighting areas measured perpendicular to the street shall be 1:48 (2.1%) maximum.
R309.1.2 Boarding Platforms. Boarding platforms at transit stops shall comply with R309.1.2 and R309.1.3.
R309.1.2.1 Platform and Vehicle Floor Coordination. Boarding platforms shall be positioned to coordinate with vehicles in accordance with the applicable requirements in 49 CFR parts 37 and 38.
R309.1.2.2 Slope. The slope of the boarding platform measured parallel to the track or street shall be the same as the grade of the track or street. The slope of the boarding platform measured perpendicular to the track or street shall be 1:48 (2.1%) maximum.
R309.1.3 Common Requirements. Boarding and alighting areas and boarding platforms shall comply with R309.1.3.
R309.1.3.1 Surfaces. The surfaces of boarding and alighting areas and boarding platforms shall comply with R302.6.
R309.1.3.2 Connection to Existing Pedestrian Circulation Paths. In alterations, boarding and alighting areas and boarding platforms shall be connected to existing pedestrian circulation paths by pedestrian access routes complying with R302.
R309.2 Transit Shelters. Transit shelters shall comply with R309.2.
R309.2.1 Connection to Boarding and Alighting Areas. Transit shelters shall be connected by pedestrian access routes complying with R302 to boarding and alighting areas complying with R309.1.1 or boarding platforms complying with R309.1.2.
R309.2.2 Clear Space. Transit shelters shall provide a minimum clear space complying with R404 entirely within the shelter. Where seating is provided within transit shelters, the clear space shall be located either at one end of a seat or so as to not overlap the area within 18 inches (455 mm) from the front edge of the seat.
R309.2.3 Environmental Controls. Where provided, environmental controls within transit shelters shall be proximity-actuated.
R309.2.4 Protruding Objects. Protruding objects within transit shelters shall comply with R402.
R310.1 General. On-street parking spaces shall comply with R310.
R310.2 Parallel On-Street Parking Spaces. Parallel on-street parking spaces shall comply with R310.2.
R310.2.1 Dimensions. Parallel on-street parking spaces shall be 24 feet (7.3 m) long minimum and 13 feet (4.0 m) wide minimum. Parallel on-street parking spaces shall not encroach on the traveled way.
Exceptions: 1. Where parallel on-street parking spaces are altered but the adjacent pedestrian circulation path is not, any accessible parallel on-street parking spaces provided may have the same dimensions as the adjacent parallel on-street parking spaces if they are provided nearest the crosswalk at the end of the block face or nearest a midblock crosswalk, and a curb ramp or blended transition is provided serving the crosswalk.
2. In alterations, where providing parallel on-street parking spaces with the dimensions specified in R310.2.1 would result in an available right-of-way width less than or equal to 9 feet (2.7 m), measured from the curb line to the right-of-way line, the accessible parallel on-street parking spaces may have the same dimensions as the adjacent parallel on-street parking spaces if they are provided nearest the crosswalk at the end of the block face or nearest a midblock crosswalk, and a curb ramp or blended transition is provided serving the crosswalk.
R310.2.2 Pedestrian Access Route Connection. Parallel on-street parking spaces shall connect to pedestrian access routes. Where curb ramps and blended transitions are used, they shall not reduce the required width or length of the parking spaces and shall be located at either end of the parking space. Where two or more accessible parallel on-street parking spaces complying with the dimensions specified in R310.2.1 are contiguous on a block face, each accessible parallel on-street parking space shall have an independent connection to the pedestrian access route. Curb ramps and blended transitions shall be provided in accordance with R203.6.1.3 and shall comply with R304. Detectable warning surfaces are not required on curb ramps and blended transitions used exclusively to connect accessible on-street parallel parking spaces to pedestrian access routes.
Exception: In alterations, where parallel on-street parking spaces are provided in accordance with Exception 1 or 2 to R310.2.1, the parallel on-street parking space shall be connected to the curb ramp or blended transition serving the crosswalk by a pedestrian circulation path complying with R302.6, except that changes in level are not permitted.
R310.2.3 Surfaces. Surfaces of parking spaces shall comply with R302.6, except that changes in level are not permitted.
R310.2.4 Clearance Adjacent to Parking Spaces. The center 50 percent of the length of the sidewalk, or other surface, adjacent to an accessible parallel parking space shall be free of obstructions, including parking identification signs, parking pay meters, and parking pay stations, and shall comply with R302.6.
R310.2.5 Identification. Parallel on-street parking spaces shall be identified by signs displaying the International Symbol of Accessibility complying with R411. Signs shall be 60 inches (1525 mm) minimum above the ground surface measured to the bottom of the sign.
R310.3 Perpendicular Parking Spaces. Perpendicular parking spaces shall comply with R310.3.
R310.3.1 Access Aisles. Perpendicular on-street parking spaces shall have adjacent access aisles 96 inches (2440 mm) wide minimum extending the full length of the parking space. One access aisle shall be permitted to serve two parking spaces where front and rear entry parking are both permitted. Where an access aisle serves only one parking space and parking is restricted to either front entry or rear entry orientation, the access aisle shall be located on the passenger side of the vehicle.
R310.4 Angled Parking Spaces. Accessible angled parking spaces shall comply with R310.4.
R310.4.1 Width. The width of an angled parking space shall be 132 inches (3350 mm).
R310.4.2 Access Aisles. Each angled on-street parking space shall have an adjacent access aisle 60 inches (1525 mm) wide minimum extending the full length of the parking space on the passenger side.
R310.5 Common Requirements for Perpendicular and Angled Parking Spaces. Perpendicular and angled parking spaces shall comply with R310.5.
R310.5.1 Access Aisle Markings. The access aisle surface shall be marked to discourage parking in the access aisle.
R310.5.2 Access Aisle Location. Access aisles shall be located at the same level as the parking space they serve and shall not encroach on the traveled way.
R310.5.3 Pedestrian Access Route Connection. Access aisles shall connect to pedestrian access routes. Where curb ramps and blended transitions are used, they shall not reduce the required width or length of access aisles and parking spaces. Curb ramps and blended transitions shall be provided in accordance with R203.6.1.4 and shall comply with R304. A detectable warning surface is not required on a curb ramp or blended transition used exclusively to connect on-street parking access aisles to pedestrian access routes.
Exception: In alterations, the access aisle may connect to an existing pedestrian circulation path in accordance with R202.2.
R310.5.4 Surfaces. Surfaces of parking spaces and access aisles serving them shall comply with R302.6, except that changes in level are not permitted.
R310.5.5 Identification. Perpendicular or angled on-street parking spaces shall be identified by signs displaying the International Symbol of Accessibility complying with R411. The signs shall be located at the head of the parking space. Signs shall be 60 inches (1525 mm) minimum above the ground surface measured to the bottom of the sign.
R310.6 Parking Meters and Parking Pay Stations. Parking meters and parking pay stations that serve accessible parking spaces shall provide operable parts complying with R403. The clear space required by R403.2 shall be located so that displays and information on parking meters and pay stations are visible from a point located 40 inches (1015 mm) maximum above the center of the clear space in front of the parking meter or parking pay station.
R311.1 General. Accessible passenger loading zones shall comply with R311.
R311.2 Vehicle Pull-Up Space. Accessible passenger loading zones shall provide a vehicular pull-up space that is 96 inches (2440 mm) wide minimum and 20 feet (6.1 m) long minimum.
R311.3 Access Aisle. Vehicle pull-up spaces shall have adjacent access aisles complying with R311.3 that are 60 inches (1525 mm) wide minimum extending the full length of the vehicle pull-up space. Access aisles shall be at the same level as the vehicle pull-up space they serve and shall not encroach on the traveled way.
R311.3.1 Clearance Adjacent to Passenger Loading Zone. The center 50 percent of the length of the sidewalk, or other surface, adjacent to an accessible passenger loading zone shall be free of obstructions and comply with R302.6.
R311.3.2 Marking. Access aisle surfaces shall be marked to discourage parking in them.
R311.4 Surfaces. Surfaces of vehicle pull-up spaces and the access aisles serving them shall comply with R302.6, except that changes in level are not permitted.
R311.5 Pedestrian Access Route Connection. Access aisles shall connect to pedestrian access routes. Where curb ramps and blended transitions are used, they shall be provided in accordance with R203.6.1.4 and comply with R304, and shall not reduce the required width or length of access aisles. Detectable warning surfaces are not required on curb ramps and blended transitions used exclusively to connect access aisles to pedestrian access routes.
Exception: In alterations, the access aisle may connect to an existing pedestrian circulation path in accordance with R202.2.
R401.1 Scope. The supplemental technical requirements in Chapter 4 shall apply where required by Chapter 2 or where referenced by a requirement in these guidelines.
R402.1 General. Protruding objects and vertical clearance shall comply with R402.
R402.2 Protrusion Limits. Objects with leading edges more than 27 inches (685 mm) and less than 80 inches (2030 mm) above the walking surface shall not protrude horizontally more than 4 inches (100 mm) into pedestrian circulation paths.
Exception: Handrails shall be permitted to protrude 4
R402.3 Post-Mounted Objects. Where objects are mounted on posts or pylons, they shall comply with R402.3.
Exception: The sloping portions of handrails serving stairs and ramps shall not be required to comply with R402.3.
R402.3.1 Objects Mounted on Single Post or Pylon. Where objects are mounted on a single post or pylon and the objects are more than 27 inches (685 mm) and less than 80 inches (2030 mm) above the walking surface, the objects shall not protrude into the pedestrian circulation path more than 4 inches (100 mm) measured horizontally from the post or pylon or more than 4 inches (100mm) measured horizontally from the outside edge of the base where the base height is 2
R402.3.2 Objects Mounted Between Posts or Pylons. Where objects are mounted between posts or pylons and the clear distance between the posts or pylons is greater than 12 inches (305 mm), the lowest edge of the object shall be 27 inches (685 mm) maximum or 80 inches (2030 mm) minimum above the walking surface.
Exception: Objects mounted with the lowest edge greater than 27 inches (685 mm) and less than 80 inches (2030 mm) above the walking surface are permitted if a barrier with its lowest edge at 27 inches (685 mm) maximum above the walking surface is provided between the posts or pylons.
R402.4 Vertical Clearance. Vertical clearance shall be 80 inches (2030 mm) high minimum. Guards or other barriers to prohibit pedestrian travel shall be provided where the vertical clearance is less than 80 inches (2030 mm) high above the walking surface. The lowest edge of the guard or barrier shall be located 27 inches (685 mm) maximum above the walking surface.
R402.5 Required Clear Width. Protruding objects shall not reduce the clear width required for pedestrian access routes.
R403.1 General. Operable parts shall comply with R403.
R403.2 Clear Space. A clear space complying with R404 shall be provided at operable parts.
R403.3 Height. Operable parts shall be placed within one or more of the reach ranges specified in R406.
R403.4 Operation. Operable parts shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist. The force required to activate operable parts shall be 5 pounds (22.2 N) maximum.
R404.1 General. Clear spaces shall comply with R404.
R404.2 Surfaces. Surfaces of clear spaces shall comply with R302.6. The slope of the clear space shall be 1:48 (2.1%) maximum in both directions.
Exception: Where the slope of the clear space would exceed 1:48 (2.1%) in either or both directions due to the grade of an adjacent pedestrian access route conforming to the requirements of R302.4, the slope of the clear space may be consistent with the slope of the pedestrian access route.
R404.3 Size. Clear spaces shall be 30 inches (760 mm) minimum by 48 inches (1220 mm) minimum.
R404.4 Knee and Toe Clearance. Unless otherwise specified, clear spaces shall be permitted to include knee and toe clearance complying with R405.
R404.5 Position. Clear spaces shall be positioned either for forward approach where the 30-inch side is nearest to the element, or for parallel approach where the 48-inch side is nearest to the element. Clear spaces shall not be located on curb ramp runs or flares.
R404.6 Approach. One full unobstructed side of a clear space shall adjoin a pedestrian access route or adjoin another clear space.
R404.7 Maneuvering Clearance. Where a clear space is confined on all or part of three sides, additional maneuvering clearance shall be provided in accordance with R404.7.1 and R404.7.2.
R404.7.1 Forward Approach. The clear space and additional maneuvering clearance shall be 36 inches (915 mm) wide minimum where the depth of the confined space exceeds 24 inches (610 mm) measured perpendicular to the element.
R404.7.2 Parallel Approach. The clear space and additional maneuvering clearance shall be 60 inches (1525 mm) wide minimum where the depth of the confined space exceeds 15 inches (380 mm) measured perpendicular to the element.
R405.1 General. Where space beneath an element is included as part of a clear space, the space shall comply with R405. Additional space shall not be prohibited beneath an element but shall not be considered as part of the clear space.
R405.2 Toe Clearance. Toe clearance shall comply with R405.2.
R405.2.1 General. Space under an element between the ground surface and 9 inches (230 mm) above the ground surface shall be considered toe clearance and shall comply with R405.2.
R405.2.2 Maximum Depth. Toe clearance shall extend 25 inches (635 mm) maximum under an element.
R405.2.3 Minimum Required Depth. Where toe clearance is required at an element as part of a clear space, the toe clearance shall extend 17 inches (430 mm) minimum under the element.
R405.2.4 Additional Clearance. Space extending greater than 6 inches (150 mm) beyond the available knee clearance at 9 inches above the ground surface shall not be considered toe clearance.
R405.2.5 Width. Toe clearance shall be 30 inches (760 mm) wide minimum.
R405.3 Knee Clearance. Knee clearance shall comply with R405.3.
R405.3.1 General. Space under an element between 9 inches (230 mm) and 27 inches (685 mm) above the ground surface shall be considered knee clearance and shall comply with R405.3.
R405.3.2 Maximum Depth. Knee clearance shall extend 25 inches (635 mm) maximum under an element at 9 inches (230 mm) above the ground surface.
R405.3.3 Minimum Required Depth. Where knee clearance is required under an element as part of a clear space, the knee clearance shall be 11 inches (280 mm) deep minimum at 9 inches (230 mm) above the ground surface, and 8 inches (205 mm) deep minimum at 27 inches (685 mm) above the ground surface.
R405.3.4 Clearance Reduction. Between 9 inches (230 mm) and 27 inches (685mm) above the ground surface, the knee clearance shall be permitted to reduce at a rate of 1 inch (25 mm) in depth for each 6 inches (150 mm) in height.
R405.3.5 Width. Knee clearance shall be 30 inches (760 mm) wide minimum.
R406.1 General. Reach ranges shall comply with R406.
R406.2 Reach Range Limits. For forward and parallel approaches, the high reach shall be 48 inches (1220 mm) maximum and the low reach shall be 15 inches (380 mm) minimum above the ground surface.
R406.3 Obstructions. Obstructed reach shall comply with R406.3.
R406.3.1 Forward Reach. Where the clear space is configured solely for a forward approach to an element, obstructions shall not be permitted between the clear space and the element for a forward reach.
R406.3.2 Side Reach. Where a clear space is configured for a parallel approach to an element, an obstruction shall be permitted between the clear space and the element where the depth of the obstruction is 10 inches (255 mm) maximum and the height of the obstruction is 34 inches (865 mm) maximum.
R407.1 General. Ramps shall comply with R407. R407 does not apply to curb ramps or pedestrian access routes following the grade established for the adjacent street consistent with the requirements of R302.4.1.
R407.2 Running Slope. The running slope of each ramp run shall be 1:12 (8.3%) maximum.
R407.3 Cross Slope. The cross slope of ramp runs shall be 1:48 (2.1%) maximum.
R407.4 Clear Width. The clear width of a ramp run shall be 48 inches (1220 mm) minimum. Where handrails are provided, the clear width between handrails shall be 48 inches (1220 mm) minimum.
Exception: Where a ramp only serves a building entrance, the clear width of the ramp run shall be permitted to be 36 inches (915 mm) minimum. Where handrails are provided, the clear width between handrails shall be permitted to be 36 inches (915 mm) minimum.
R407.5 Rise. The rise for any ramp run shall be 30 inches (760 mm) maximum.
R407.6 Landings. Ramps shall have landings at the top and the bottom of each ramp run. Landings shall comply with R407.6.
R407.6.1 Slope. Landing slopes shall be 1:48 (2.1%) maximum parallel and perpendicular to the ramp running slope.
R407.6.2 Width. The landing clear width shall be at least as wide as the widest ramp run leading to the landing.
R407.6.3 Length. The landing clear length shall be 60 inches (1525 mm) long minimum.
R407.6.4 Change in Direction. Ramps that change direction between runs at landings shall have a clear landing 60 inches (1525 mm) minimum by 60 inches (1525 mm) minimum.
R407.7 Surfaces. Surfaces of ramp runs and landings shall comply with R302.6, except that changes in level are not permitted.
R407.8 Handrails. Ramp runs with a rise greater than 6 inches (150 mm) shall have handrails complying with R409.
R407.9 Edge Protection. Edge protection complying with R407.9.1 or R407.9.2 shall be provided on each side of ramp runs and each side of ramp landings except those serving an adjoining ramp run, stairway, or other pedestrian circulation path.
R407.9.1 Extended Ramp Surface. The surface of the ramp run or landing shall extend 12 inches (305 mm) minimum beyond the inside face of a handrail complying with R409.
R407.9.2 Curb or Barrier. A curb that is 4 inches (100 mm) high minimum, or a barrier that prevents the passage of a 4-inch (100 mm) diameter sphere, where any portion of the sphere is within 4 inches (100 mm) of the surface of the ramp run or landing, shall be provided.
R408.1 General. Stairs shall comply with R408.
R408.2 Treads and Risers. All steps on a flight of stairs shall have uniform riser heights and uniform tread depths. Risers shall be 4 inches (100 mm) high minimum and 7 inches (180 mm) high maximum. Treads shall be 11 inches (280 mm) deep minimum.
R408.3 Open Risers. Open risers are not permitted.
R408.4 Tread Surface. Stair treads shall comply with R302.6, except that changes in level are not permitted.
Exception: Treads shall be permitted to have a slope not steeper than 1:48 (2.1%).
R408.5 Nosings. The radius of curvature at the leading edge of the tread shall be
R408.6 Visual Contrast. The leading edge of each step tread and top landing shall be marked by a stripe. The stripe shall be 1 inch (25 mm) wide minimum and shall contrast visually with the rest of the step tread or circulation path surface either light-on-dark or dark-on-light.
R408.7 Handrails. Stairs shall have handrails complying with R409.
R409.1 General. Handrails required at ramps and stairs, and handrails provided on pedestrian circulation paths shall comply with R409. R409 does not apply to curb ramps.
R409.2 Where Required. Handrails shall be provided on both sides of ramps and stairs.
R409.3 Continuity. Handrails shall be continuous within the full length of each ramp run or stair flight. Inside handrails on switchback or dogleg ramps and stairs shall be continuous between ramp runs or stair flights.
R409.4 Height. The top of gripping surfaces of handrails shall be 34 inches (865 mm) minimum and 38 inches (965 mm) maximum vertically above walking surfaces, ramp surfaces, and stair nosings. Handrails shall be at a consistent height above walking surfaces, ramp surfaces, and stair nosings.
R409.5 Clearance. Clearance between handrail gripping surfaces and adjacent surfaces shall be 1
R409.6 Gripping Surface. Handrail gripping surfaces shall be continuous along their length and shall not be obstructed along their tops or sides. The bottoms of handrail gripping surfaces shall not be obstructed for more than 20 percent of their length. Where provided, horizontal projections shall occur 1
R409.7 Cross Section. Handrail gripping surfaces shall have a cross section complying with R409.7.1 or R409.7.2. Where expansion joints are necessary for large spans of handrails, the expansion joint cross section is permitted to be smaller than the specified cross section diameters for 1 inch (25 mm) maximum in length.
R409.7.1 Circular Cross Section. Handrail gripping surfaces with a circular cross section shall have an outside diameter of 1
R409.7.2 Non-Circular Cross Section. Handrail gripping surfaces with a non-circular cross section shall have a perimeter dimension of 4 inches (100 mm) minimum and 6
R409.8 Surfaces. Handrail gripping surfaces and any surfaces adjacent to them shall be free of sharp or abrasive elements and shall have rounded edges.
R409.9 Fittings. Handrails shall not rotate within their fittings. Where expansion joints are necessary for large spans of handrails, the expansion joint is permitted to rotate in its fitting.
R409.10 Handrail Extensions. Handrail gripping surfaces shall extend beyond and in the same direction of ramp runs and stair flights in accordance with R409.10. Handrail extensions shall not extend into the roadway or pedestrian circulation path. In alterations, if handrail extensions complying with R409.10 would reduce the clear width of a pedestrian access route, they shall extend as far as possible without reducing the clear width of the pedestrian access route.
Exception: Extensions shall not be required for continuous handrails at the inside turn of switchback or dogleg ramps and stairs.
R409.10.1 Top and Bottom Extension at Ramps. Ramp handrails shall extend horizontally above the landing for 12 inches (305 mm) minimum beyond the top and bottom of ramp runs. Extensions shall return to a wall, guard, or the landing surface, or shall be continuous to the handrail of an adjacent ramp run.
R409.10.2 Top Extension at Stairs. At the top of a stair flight, handrails shall extend horizontally above the landing for 12 inches (305 mm) minimum beginning directly above the first riser nosing. Extensions shall return to a wall, guard, or the landing surface, or shall be continuous to the handrail of an adjacent stair flight.
R409.10.3 Bottom Extension at Stairs. At the bottom of a stair flight, handrails shall extend at the slope of the stair flight for a horizontal distance at least equal to one tread depth beyond the last riser nosing. Extensions shall return to a wall, guard, or the landing surface, or shall be continuous to the handrail of an adjacent stair flight.
R410.1 General. Visual characters on signs shall comply with R410.
R410.2 Finish and Contrast. Characters and their background shall have a non-glare finish. Characters shall contrast with their background with either light characters on a dark background or dark characters on a light background.
R410.3 Case. Characters shall be uppercase or lowercase or a combination of both.
R410.4 Style. Characters shall be conventional in form. Characters shall not be italic, oblique, script, highly decorative, or of other unusual forms.
R410.5 Character Proportions. Characters shall be selected from fonts where the width of the uppercase letter “O” is 55 percent minimum and 110 percent maximum of the height of the uppercase letter “I”.
R410.6 Character Height. Minimum character height shall comply with Table R410.6. Viewing distance shall be measured as the horizontal distance between the character and an obstruction preventing further approach towards the sign. Character height shall be based on the uppercase letter “I”.
R410.6 Visual Character Height
| Height to finish surface from
baseline of character | Horizontal viewing
distance | Minimum character height |
|---|---|---|
| 40 inches (1015 mm) to less than or equal to 70 inches (1780 mm) | Less than 72 inches (1830 mm) | 5/8 inch (16 mm). |
| 40 inches (1015 mm) to less than or equal to 70 inches (1780 mm) | 72 inches (1830 mm) and greater | 5/8 inch (16 mm), plus |
| Greater than 70 inches (1780 mm) to less than or equal to 120 inches (3050 mm) | Less than 180 inches (4570 mm) | 2 inches (51 mm). |
| Greater than 70 inches (1780 mm) to less than or equal to 120 inches (3050 mm) | 180 inches (4570 mm) and greater | 2 inches (51 mm), plus |
| Greater than 120 inches (3050 mm) | Less than 21 feet (6400 mm) | 3 inches (75 mm). |
| Greater than 120 inches (3050 mm) | 21 feet (6400 mm) and greater | 3 inches (75 mm), plus |
R410.7 Stroke Thickness. Stroke thickness of the uppercase letter “I” shall be 10 percent minimum and 30 percent maximum of the height of the character.
R410.8 Character Spacing. Character spacing shall be measured between the two closest points of adjacent characters, excluding word spaces. Spacing between individual characters shall be 10 percent minimum and 35 percent maximum of character height.
R410.9 Line Spacing. Spacing between the baselines of separate lines of characters within a message shall be 135 percent minimum and 170 percent maximum of the character height.
R410.10 Height from Ground Surface. Visual characters shall be 40 inches (1015 mm) minimum above the ground surface.
R411.1 General. The International Symbol of Accessibility shall comply with R411 and Figure R411.
R411.2 Finish and Contrast. The symbol and its background shall have a non-glare finish. The symbol shall contrast with its background with either a light symbol on a dark background or a dark symbol on a light background.
PART 1191—AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY GUIDELINES FOR BUILDINGS AND FACILITIES; ARCHITECTURAL BARRIERS ACT (ABA) ACCESSIBILITY GUIDELINES
§ 1191.1 Accessibility guidelines.
(a) The accessibility guidelines for buildings and facilities covered by the Americans with Disabilities Act are set forth in Appendices B and D to this part. The guidelines serve as the basis for accessibility standards adopted by the Department of Justice and the Department of Transportation under the Americans with Disabilities Act.
1. Advisory sections and figures that illustrate the technical requirements in Appendix D are available on the Internet at: www.access-board.gov. The advisory sections provide guidance only and do not contain mandatory requirements.
2. The Department of Justice adopted the 2010 ADA Standards for Accessible Design (2010 Standards) as the regulatory standards for the new construction and alteration of facilities subject to its regulations under the Americans with Disabilities Act (ADA), effective March 15, 2012. 28 CFR 35.151(c)(3), as amended at 75 FR 56163, September 15, 2010; and 28 CFR 36.406(a)(3), as amended at 75 FR 56236, September 15, 2010. For state and local governments, the 2010 Standards consist of the regulations at 28 CFR 35.151 and the versions of Appendices B and D to this part published in the 2009 edition of the Code of Federal Regulations. 28 CFR 35.104. For public accommodations and commercial facilities, the 2010 Standards consist of the regulations at 28 CFR part 36, subpart D and the versions of Appendices B and D to this part published in the 2009 edition of the Code of Federal Regulations. 28 CFR 36.104. Because Appendices B and D to this part, as published in the 2009 edition of the Code of Federal Regulations, were adopted by reference by the Department of Justice as part of the 2010 Standards for new construction and alteration of facilities subject to its ADA regulations, subsequent revisions to Appendices B and D by the Access Board are not included in the 2010 Standards and have no legal effect for facilities subject to its ADA regulations until adopted by the Department of Justice. Therefore, the public is cautioned not to use Appendices B and D to this part published in any edition of the Code of Federal Regulations after 2013, until such time as the later edition is adopted by the Department of Justice as a regulatory standard. Complete copies of the 2010 Standards can be obtained from the Department of Justice’s ADA Web site at: http://www.ada.gov/2010ADAstandards_index.htm, or by contacting the DOJ Information Line, at: 800-514-0301 (Voice) or 800-514-0383 (TTY).
1. The Department of Transportation has adopted by reference Appendices B and D to this part with modifications as the regulatory standards for the construction and alteration of transportation facilities subject to its regulations under the Americans with Disabilities Act, effective November 29, 2006. 49 CFR 37.9 and Appendix A to 49 CFR part 37, as amended at 71 FR 63263, October 30, 2006; and corrected at 72 FR 11089, March 12, 2007. The Department of Transportation has modified section 206.3 in Appendix B to this part; and sections 406, 810.2.2, and 810.5.3 in Appendix D to this part. The modified sections adopted by the Department of Transportation are reprinted in Appendix F to this part. Entities that are required to comply with the Department of Transportation’s regulatory standards, must comply with the modified sections adopted by the Department of Transportation that are reprinted in Appendix F to this part.
(b) The accessibility guidelines for buildings and facilities covered by the Architectural Barriers Act are set forth in Appendices C and D to this part. The guidelines serve as the basis for accessibility standards adopted by the General Services Administration, the Department of Defense, the Department of Housing and Urban Development, and the United States Postal Service under the Architectural Barriers Act.
1. Advisory sections and figures that illustrate the technical requirements in Appendix D are available on the Internet at: www.access-board.gov. The advisory sections provide guidance only and do not contain mandatory requirements.
1. The General Services Administration has adopted by reference Appendices C and D to this part as the regulatory standards for buildings and facilities subject to its regulations under the Architectural Barriers Act. 41 CFR 102-76.65, as added at 70 FR 67786, November 8, 2005; amended at 71 FR 52498, September 6, 2006; and further amended at 72 FR 5942, February 8, 2007. The General Services Administration refers to its regulatory standards as the Architectural Barriers Act Accessibility Standard (ABAAS). ABAAS applies to the construction and alteration of facilities commenced after May 8, 2006; to leases awarded for lease construction buildings on or after June 30, 2006; and to all other leases awarded pursuant to solicitations issued after February 6, 2007. Section 3.5 of the Facilities Standards for the Public Building Service PBS—P100 (March 2005) [available on the Internet at: http://www.gsa.gov/P100] establishes an additional requirement for General Services Administration owned buildings and lease construction with government option to purchase buildings to provide at least one automatic or power-assisted door complying with section 404.3 of ABAAS at each new or altered accessible entrance required by section F206.4.1 of ABAAS.
2. The United States Postal Service has adopted by reference Appendices C and D to this part, with the exception of the advisory notes, as the regulatory standards for its postal facilities subject to the Architectural Barriers Act, effective October 1, 2005. 39 CFR 254.1, as added at 70 FR 28213, May 17, 2005.
4. The Department of Defense adopted by reference Appendices B and D to this part as accessibility standards for the new construction and alteration of its facilities subject to the Architectural Barriers Act, effective October 31, 2008. Deputy Secretary of Defense Memorandum dated October 31, 2008, Access for People with Disabilities [available on the Internet at: http://www.access-board.gov/guidelines-and-standards/buildings-and-sites/about-the-aba-standards/background/dod-memorandum].
Appendix A to Part 1191—Table Of Contents
Appendix B to Part 1191—Americans With Disabilities Act: Scoping
101.1 General. This document contains scoping and technical requirements for accessibility to sites, facilities, buildings, and elements by individuals with disabilities. The requirements are to be applied during the design, construction, additions to, and alteration of sites, facilities, buildings, and elements to the extent required by regulations issued by Federal agencies under the Americans with Disabilities Act of 1990 (ADA).
101.2 Effect on Removal of Barriers in Existing Facilities. This document does not address existing facilities unless altered at the discretion of a covered entity. The Department of Justice has authority over existing facilities that are subject to the requirement for removal of barriers under title III of the ADA. Any determination that this document applies to existing facilities subject to the barrier removal requirement is solely within the discretion of the Department of Justice and is effective only to the extent required by regulations issued by the Department of Justice.
102.1 General. The technical requirements are based on adult dimensions and anthropometrics. In addition, this document includes technical requirements based on children’s dimensions and anthropometrics for drinking fountains, water closets, toilet compartments, lavatories and sinks, dining surfaces, and work surfaces.
103.1 General. Nothing in these requirements prevents the use of designs, products, or technologies as alternatives to those prescribed, provided they result in substantially equivalent or greater accessibility and usability.
104.1 Dimensions. Dimensions that are not stated as “maximum” or “minimum” are absolute.
104.1.1 Construction and Manufacturing Tolerances. All dimensions are subject to conventional industry tolerances except where the requirement is stated as a range with specific minimum and maximum end points.
104.2 Calculation of Percentages. Where the required number of elements or facilities to be provided is determined by calculations of ratios or percentages and remainders or fractions result, the next greater whole number of such elements or facilities shall be provided. Where the determination of the required size or dimension of an element or facility involves ratios or percentages, rounding down for values less than one half shall be permitted.
105.1 General. The standards listed in 105.2 are incorporated by reference in this document and are part of the requirements to the prescribed extent of each such reference. The Director of the Federal Register has approved these standards for incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the referenced standards may be inspected at the Architectural and Transportation Barriers Compliance Board, 1331 F Street NW., Suite 1000, Washington, DC 20004; at the Department of Justice, Civil Rights Division, Disability Rights Section, 1425 New York Avenue NW., Washington, DC 20005; at the Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
105.2 Referenced Standards. The specific edition of the standards listed below are referenced in this document. Where differences occur between this document and the referenced standards, this document applies.
105.2.1 ANSI/BHMA. Copies of the referenced standards may be obtained from the Builders Hardware Manufacturers Association, 355 Lexington Avenue, 15th floor, New York, NY 10017 (http://www.buildershardware.com).
ANSI/BHMA A156.10-1999 American National Standard for Power Operated Pedestrian Doors (see 404.3).
ANSI/BHMA A156.19-1997 American National Standard for Power Assist and Low Energy Power Operated Doors (see 404.3, 408.3.2.1, and 409.3.1).
ANSI/BHMA A156.19-2002 American National Standard for Power Assist and Low Energy Power Operated Doors (see 404.3, 408.3.2.1, and 409.3.1).
105.2.2 ASME. Copies of the referenced standards may be obtained from the American Society of Mechanical Engineers, Two Park Avenue, New York, New York 10016 (http://www.asme.org).
ASME A17.1-2000 Safety Code for Elevators and Escalators, including ASME A17.1a-2002 Addenda and ASME A17.1b-2003 Addenda (see 407.1, 408.1, 409.1, and 810.9).
ASME A18.1-1999 Safety Standard for Platform Lifts and Stairway Chairlifts, including ASME A18.1a-2001 Addenda and ASME A18.1b¶2001 Addenda (see 410.1).
ASME A18.1-2003 Safety Standard for Platform Lifts and Stairway Chairlifts, (see 410.1).
105.2.3 ASTM. Copies of the referenced standards may be obtained from the American Society for Testing and Materials, 100 Bar Harbor Drive, West Conshohocken, Pennsylvania 19428 (http://www.astm.org).
ASTM F1292-99 Standard Specification for Impact Attenuation of Surface Systems Under and Around Playground Equipment (see 1008.2.6.2).
ASTM F1292-04 Standard Specification for Impact Attenuation of Surfacing Materials Within the Use Zone of Playground Equipment (see 1008.2.6.2).
ASTM F1487-01 Standard Consumer Safety Performance Specification for Playground Equipment for Public Use (see 106.5).
ASTM F1951-99 Standard Specification for Determination of Accessibility of Surface Systems Under and Around Playground Equipment (see 1008.2.6.1).
105.2.4 ICC/IBC. Copies of the referenced standard may be obtained from the International Code Council, 500 New Jersey Avenue NW., Washington, DC 20001 (www.iccsafe.org).
International Building Code, 2000 Edition (see 207.1, 207.2, 216.4.2, 216.4.3, and 1005.2.1).
International Building Code, 2001 Supplement (see 207.1 and 207.2).
International Building Code, 2003 Edition (see 207.1, 207.2, 216.4.2, 216.4.3, and 1005.2.1).
105.2.5 NFPA. Copies of the referenced standards may be obtained from the National Fire Protection Association, 1 Batterymarch Park, Quincy, Massachusetts 02169-7471, (http://www.nfpa.org).
NFPA 72 National Fire Alarm Code, 1999 Edition (see 702.1, 809.3.1.1, and 809.3.1.2).
NFPA 72 National Fire Alarm Code, 2002 Edition (see 702.1, 809.3.1.1, and 809.3.1.2).
106.1 General. For the purpose of this document, the terms defined in 106.5 have the indicated meaning.
106.2 Terms Defined in Referenced Standards. Terms not defined in 106.5 or in regulations issued by the Department of Justice and the Department of Transportation to implement the Americans with Disabilities Act, but specifically defined in a referenced standard, shall have the specified meaning from the referenced standard unless otherwise stated.
106.3 Undefined Terms. The meaning of terms not specifically defined in 106.5 or in regulations issued by the Department of Justice and the Department of Transportation to implement the Americans with Disabilities Act or in referenced standards shall be as defined by collegiate dictionaries in the sense that the context implies.
106.4 Interchangeability. Words, terms and phrases used in the singular include the plural and those used in the plural include the singular.
106.5 Defined Terms.
Accessible. A site, building, facility, or portion thereof that complies with this part.
Accessible Means of Egress. A continuous and unobstructed way of egress travel from any point in a building or facility that provides an accessible route to an area of refuge, a horizontal exit, or a public way.
Addition. An expansion, extension, or increase in the gross floor area or height of a building or facility.
Administrative Authority. A governmental agency that adopts or enforces regulations and guidelines for the design, construction, or alteration of buildings and facilities.
Alteration. A change to a building or facility that affects or could affect the usability of the building or facility or portion thereof. Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, resurfacing of circulation paths or vehicular ways, changes or rearrangement of the structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.
Amusement Attraction. Any facility, or portion of a facility, located within an amusement park or theme park which provides amusement without the use of an amusement device. Amusement attractions include, but are not limited to, fun houses, barrels, and other attractions without seats.
Amusement Ride. A system that moves persons through a fixed course within a defined area for the purpose of amusement.
Amusement Ride Seat. A seat that is built-in or mechanically fastened to an amusement ride intended to be occupied by one or more passengers.
Area of Sport Activity. That portion of a room or space where the play or practice of a sport occurs.
Assembly Area. A building or facility, or portion thereof, used for the purpose of entertainment, educational or civic gatherings, or similar purposes. For the purposes of these requirements, assembly areas include, but are not limited to, classrooms, lecture halls, courtrooms, public meeting rooms, public hearing rooms, legislative chambers, motion picture houses, auditoria, theaters, playhouses, dinner theaters, concert halls, centers for the performing arts, amphitheaters, arenas, stadiums, grandstands, or convention centers.
Assistive Listening System (ALS). An amplification system utilizing transmitters, receivers, and coupling devices to bypass the acoustical space between a sound source and a listener by means of induction loop, radio frequency, infrared, or direct-wired equipment.
Boarding Pier. A portion of a pier where a boat is temporarily secured for the purpose of embarking or disembarking.
Boat Launch Ramp. A sloped surface designed for launching and retrieving trailered boats and other water craft to and from a body of water.
Boat Slip. That portion of a pier, main pier, finger pier, or float where a boat is moored for the purpose of berthing, embarking, or disembarking.
Building. Any structure used or intended for supporting or sheltering any use or occupancy.
Catch Pool. A pool or designated section of a pool used as a terminus for water slide flumes.
Characters. Letters, numbers, punctuation marks and typographic symbols.
Children’s Use. Describes spaces and elements specifically designed for use primarily by people 12 years old and younger.
Circulation Path. An exterior or interior way of passage provided for pedestrian travel, including but not limited to, walks, hallways, courtyards, elevators, platform lifts, ramps, stairways, and landings.
Closed-Circuit Telephone. A telephone with a dedicated line such as a house phone, courtesy phone or phone that must be used to gain entry to a facility.
Common Use. Interior or exterior circulation paths, rooms, spaces, or elements that are not for public use and are made available for the shared use of two or more people.
Cross Slope. The slope that is perpendicular to the direction of travel (see running slope).
Curb Ramp. A short ramp cutting through a curb or built up to it.
Detectable Warning. A standardized surface feature built in or applied to walking surfaces or other elements to warn of hazards on a circulation path.
Element. An architectural or mechanical component of a building, facility, space, or site.
Elevated Play Component. A play component that is approached above or below grade and that is part of a composite play structure consisting of two or more play components attached or functionally linked to create an integrated unit providing more than one play activity.
Emergency Transportable Housing Unit. A single or multiple section prefabricated structure that is transportable by a single transport vehicle and that can be set-up and installed on a temporary site in response to an emergency need for temporary housing. Such structures include, but are not limited to, travel trailers, park models, manufactured housing, and other factory-built housing. For the purposes of this document, emergency transportable housing units are considered a type of residential dwelling unit.
Employee Work Area. All or any portion of a space used only by employees and used only for work. Corridors, toilet rooms, kitchenettes and break rooms are not employee work areas.
Entrance. Any access point to a building or portion of a building or facility used for the purpose of entering. An entrance includes the approach walk, the vertical access leading to the entrance platform, the entrance platform itself, vestibule if provided, the entry door or gate, and the hardware of the entry door or gate.
Facility. All or any portion of buildings, structures, site improvements, elements, and pedestrian routes or vehicular ways located on a site.
Gangway. A variable-sloped pedestrian walkway that links a fixed structure or land with a floating structure. Gangways that connect to vessels are not addressed by this document.
Golf Car Passage. A continuous passage on which a motorized golf car can operate.
Ground Level Play Component. A play component that is approached and exited at the ground level.
Key Station. Rapid and light rail stations, and commuter rail stations, as defined under criteria established by the Department of Transportation in 49 CFR 37.47 and 49 CFR 37.51, respectively.
Mail Boxes. Receptacles for the receipt of documents, packages, or other deliverable matter. Mail boxes include, but are not limited to, post office boxes and receptacles provided by commercial mail-receiving agencies, apartment facilities, or schools.
Marked Crossing. A crosswalk or other identified path intended for pedestrian use in crossing a vehicular way.
Mezzanine. An intermediate level or levels between the floor and ceiling of any story with an aggregate floor area of not more than one-third of the area of the room or space in which the level or levels are located. Mezzanines have sufficient elevation that space for human occupancy can be provided on the floor below.
Occupant Load. The number of persons for which the means of egress of a building or portion of a building is designed.
Operable Part. A component of an element used to insert or withdraw objects, or to activate, deactivate, or adjust the element.
Pictogram. A pictorial symbol that represents activities, facilities, or concepts.
Play Area. A portion of a site containing play components designed and constructed for children.
Play Component. An element intended to generate specific opportunities for play, socialization, or learning. Play components are manufactured or natural; and are stand-alone or part of a composite play structure.
Private Building or Facility. A place of public accommodation or a commercial building or facility subject to title III of the ADA and 28 CFR part 36 or a transportation building or facility subject to title III of the ADA and 49 CFR 37.45.
Public Building or Facility. A building or facility or portion of a building or facility designed, constructed, or altered by, on behalf of, or for the use of a public entity subject to title II of the ADA and 28 CFR part 35 or to title II of the ADA and 49 CFR 37.41 or 37.43.
Public Entrance. An entrance that is not a service entrance or a restricted entrance.
Public Use. Interior or exterior rooms, spaces, or elements that are made available to the public. Public use may be provided at a building or facility that is privately or publicly owned.
Public Way. Any street, alley or other parcel of land open to the outside air leading to a public street, which has been deeded, dedicated or otherwise permanently appropriated to the public for public use and which has a clear width and height of not less than 10 feet (3050 mm).
Qualified Historic Building or Facility. A building or facility that is listed in or eligible for listing in the National Register of Historic Places, or designated as historic under an appropriate State or local law.
Ramp. A walking surface that has a running slope steeper than 1:20.
Residential Dwelling Unit. A unit intended to be used as a residence, that is primarily long-term in nature. Residential dwelling units do not include transient lodging, inpatient medical care, licensed long-term care, and detention or correctional facilities.
Restricted Entrance. An entrance that is made available for common use on a controlled basis but not public use and that is not a service entrance.
Running Slope. The slope that is parallel to the direction of travel (see cross slope).
Self-Service Storage. Building or facility designed and used for the purpose of renting or leasing individual storage spaces to customers for the purpose of storing and removing personal property on a self-service basis.
Service Entrance. An entrance intended primarily for delivery of goods or services.
Site. A parcel of land bounded by a property line or a designated portion of a public right-of-way.
Soft Contained Play Structure. A play structure made up of one or more play components where the user enters a fully enclosed play environment that utilizes pliable materials, such as plastic, netting, or fabric.
Space. A definable area, such as a room, toilet room, hall, assembly area, entrance, storage room, alcove, courtyard, or lobby.
Story. That portion of a building or facility designed for human occupancy included between the upper surface of a floor and upper surface of the floor or roof next above. A story containing one or more mezzanines has more than one floor level.
Structural Frame. The columns and the girders, beams, and trusses having direct connections to the columns and all other members that are essential to the stability of the building or facility as a whole.
Tactile. An object that can be perceived using the sense of touch.
Technically Infeasible. With respect to an alteration of a building or a facility, something that has little likelihood of being accomplished because existing structural conditions would require removing or altering a loadbearing member that is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features that are in full and strict compliance with the minimum requirements.
Teeing Ground. In golf, the starting place for the hole to be played.
Transfer Device. Equipment designed to facilitate the transfer of a person from a wheelchair or other mobility aid to and from an amusement ride seat.
Transient Lodging. A building or facility containing one or more guest room(s) for sleeping that provides accommodations that are primarily short-term in nature. Transient lodging does not include residential dwelling units intended to be used as a residence, inpatient medical care facilities, licensed long-term care facilities, detention or correctional facilities, or private buildings or facilities that contain not more than five rooms for rent or hire and that are actually occupied by the proprietor as the residence of such proprietor.
Transition Plate. A sloping pedestrian walking surface located at the end(s) of a gangway.
TTY. An abbreviation for teletypewriter. Machinery that employs interactive text-based communication through the transmission of coded signals across the telephone network. TTYs may include, for example, devices known as TDDs (telecommunication display devices or telecommunication devices for deaf persons) or computers with special modems. TTYs are also called text telephones.
Use Zone. The ground level area beneath and immediately adjacent to a play structure or play equipment that is designated by ASTM F1487 (incorporated by reference, see “Referenced Standards” in Chapter 1) for unrestricted circulation around the play equipment and where it is predicted that a user would land when falling from or exiting the play equipment.
Vehicular Way. A route provided for vehicular traffic, such as in a street, driveway, or parking facility.
Walk. An exterior prepared surface for pedestrian use, including pedestrian areas such as plazas and courts.
Wheelchair Space. Space for a single wheelchair and its occupant.
Work Area Equipment. Any machine, instrument, engine, motor, pump, conveyor, or other apparatus used to perform work. As used in this document, this term shall apply only to equipment that is permanently installed or built-in in employee work areas. Work area equipment does not include passenger elevators and other accessible means of vertical transportation.
201.1 Scope. All areas of newly designed and newly constructed buildings and facilities and altered portions of existing buildings and facilities shall comply with these requirements.
201.2 Application Based on Building or Facility Use. Where a site, building, facility, room, or space contains more than one use, each portion shall comply with the applicable requirements for that use.
201.3 Temporary and Permanent Structures. These requirements shall apply to temporary and permanent buildings and facilities.
202.1 General. Additions and alterations to existing buildings or facilities shall comply with 202.
202.2 Additions. Each addition to an existing building or facility shall comply with the requirements for new construction. Each addition that affects or could affect the usability of or access to an area containing a primary function shall comply with 202.4.
202.3 Alterations. Where existing elements or spaces are altered, each altered element or space shall comply with the applicable requirements of Chapter 2.
2. In alterations, where compliance with applicable requirements is technically infeasible, the alteration shall comply with the requirements to the maximum extent feasible.
3. Residential dwelling units not required to be accessible in compliance with a standard issued pursuant to the Americans with Disabilities Act or Section 504 of the Rehabilitation Act of 1973, as amended, shall not be required to comply with 202.3.
202.3.1 Prohibited Reduction in Access. An alteration that decreases or has the effect of decreasing the accessibility of a building or facility below the requirements for new construction at the time of the alteration is prohibited.
202.3.2 Extent of Application. An alteration of an existing element, space, or area of a building or facility shall not impose a requirement for accessibility greater than required for new construction.
202.4 Alterations Affecting Primary Function Areas. In addition to the requirements of 202.3, an alteration that affects or could affect the usability of or access to an area containing a primary function shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area, including the rest rooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities, unless such alterations are disproportionate to the overall alterations in terms of cost and scope as determined under criteria established by the Attorney General. In existing transportation facilities, an area of primary function shall be as defined under regulations published by the Secretary of the Department of Transportation or the Attorney General.
202.5 Alterations to Qualified Historic Buildings and Facilities. Alterations to a qualified historic building or facility shall comply with 202.3 and 202.4.
203.1 General. Sites, buildings, facilities, and elements are exempt from these requirements to the extent specified by 203.
203.2 Construction Sites. Structures and sites directly associated with the actual processes of construction, including but not limited to, scaffolding, bridging, materials hoists, materials storage, and construction trailers shall not be required to comply with these requirements or to be on an accessible route. Portable toilet units provided for use exclusively by construction personnel on a construction site shall not be required to comply with 213 or to be on an accessible route.
203.3 Raised Areas. Areas raised primarily for purposes of security, life safety, or fire safety, including but not limited to, observation or lookout galleries, prison guard towers, fire towers, or life guard stands shall not be required to comply with these requirements or to be on an accessible route.
203.4 Limited Access Spaces. Spaces accessed only by ladders, catwalks, crawl spaces, or very narrow passageways shall not be required to comply with these requirements or to be on an accessible route.
203.5 Machinery Spaces. Spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment shall not be required to comply with these requirements or to be on an accessible route. Machinery spaces include, but are not limited to, elevator pits or elevator penthouses; mechanical, electrical or communications equipment rooms; piping or equipment catwalks; water or sewage treatment pump rooms and stations; electric substations and transformer vaults; and highway and tunnel utility facilities.
203.6 Single Occupant Structures. Single occupant structures accessed only by passageways below grade or elevated above standard curb height, including but not limited to, toll booths that are accessed only by underground tunnels, shall not be required to comply with these requirements or to be on an accessible route.
203.7 Detention and Correctional Facilities. In detention and correctional facilities, common use areas that are used only by inmates or detainees and security personnel and that do not serve holding cells or housing cells required to comply with 232, shall not be required to comply with these requirements or to be on an accessible route.
203.8 Residential Facilities. In facilities with residential dwelling units, common use areas that do not serve residential dwelling units required to provide mobility features complying with 809.2 or emergency transportable housing unit pads designed and constructed to accept the installation of units with mobility features complying with 809.2 shall not be required to comply with these requirements or to be on an accessible route.
203.9 Employee Work Areas. Spaces and elements within employee work areas shall only be required to comply with 206.2.8, 207.1, and 215.3 and shall be designed and constructed so that individuals with disabilities can approach, enter, and exit the employee work area. Employee work areas, or portions of employee work areas, other than raised courtroom stations, that are less than 300 square feet (28 m
203.10 Raised Refereeing, Judging, and Scoring Areas. Raised structures used solely for refereeing, judging, or scoring a sport shall not be required to comply with these requirements or to be on an accessible route.
203.11 Water Slides. Water slides shall not be required to comply with these requirements or to be on an accessible route.
203.12 Animal Containment Areas. Animal containment areas that are not for public use shall not be required to comply with these requirements or to be on an accessible route.
203.13 Raised Boxing or Wrestling Rings. Raised boxing or wrestling rings shall not be required to comply with these requirements or to be on an accessible route.
203.14 Raised Diving Boards and Diving Platforms. Raised diving boards and diving platforms shall not be required to comply with these requirements or to be on an accessible route.
204.1 General. Protruding objects on circulation paths shall comply with 307.
2. Within play areas, protruding objects on circulation paths shall not be required to comply with 307 provided that ground level accessible routes provide vertical clearance in compliance with 1008.2.
205.1 General. Operable parts on accessible elements, accessible routes, and in accessible rooms and spaces shall comply with 309.
2. Electrical or communication receptacles serving a dedicated use shall not be required to comply with 309.
3. Except within emergency transportable housing units required to provide mobility features complying with 809.2, where two or more outlets are provided in a kitchen above a length of counter top that is uninterrupted by a sink or appliance, one outlet shall not be required to comply with 309.
4. Floor electrical receptacles shall not be required to comply with 309.
5. HVAC diffusers shall not be required to comply with 309.
6. Except for light switches, where redundant controls are provided for a single element, one control in each space shall not be required to comply with 309.
7. Cleats and other boat securement devices shall not be required to comply with 309.3.
8. Exercise machines and exercise equipment shall not be required to comply with 309.
9. Operable parts located within residential dwelling units not required to provide mobility features complying with 809.2 and transient lodging guest rooms not required to provide mobility features complying with 806.2 shall not be required to comply with 309.
10. In emergency transportable housing units required to provide mobility features complying with 809.2, operable parts located beneath the unit body shall not be required to comply with 309.
11. Water shut-off valves shall not be required to comply with 309.
206.1 General. Accessible routes shall be provided in accordance with 206 and shall comply with Chapter 4.
206.2 Where Required. Accessible routes shall be provided where required by 206.2.
206.2.1 Site Arrival Points. At least one accessible route shall be provided within the site from accessible parking spaces and accessible passenger loading zones; public streets and sidewalks; and public transportation stops to the accessible building or facility entrance they serve.
2. An accessible route shall not be required between site arrival points and the building or facility entrance if the only means of access between them is a vehicular way not providing pedestrian access.
206.2.2 Within a Site. At least one accessible route shall connect accessible buildings, accessible facilities, accessible elements, and accessible spaces that are on the same site.
206.2.3 Multi-Story Buildings and Facilities. At least one accessible route shall connect each story and mezzanine in multi-story buildings and facilities.
2. Where a two-story public building or facility has one story with an occupant load of five or fewer persons that does not contain public use space, that story shall not be required to be connected to the story above or below.
3. In detention and correctional facilities, an accessible route shall not be required to connect stories where cells with mobility features required to comply with 807.2, all common use areas serving cells with mobility features required to comply with 807.2, and all public use areas are on an accessible route.
4. In facilities with residential dwelling units, an accessible route shall not be required to connect stories where residential dwelling units with mobility features required to comply with 809.2, all common use areas serving residential dwelling units with mobility features required to comply with 809.2, and public use areas serving residential dwelling units are on an accessible route.
5. Within multi-story transient lodging guest rooms with mobility features required to comply with 806.2, an accessible route shall not be required to connect stories provided that spaces complying with 806.2 are on an accessible route and sleeping accommodations for two persons minimum are provided on a story served by an accessible route.
6. In air traffic control towers, an accessible route shall not be required to serve the cab and the floor immediately below the cab.
7. Where exceptions for alterations to qualified historic buildings or facilities are permitted by 202.5, an accessible route shall not be required to stories located above or below the accessible story.
206.2.3.1 Stairs and Escalators in Existing Buildings. In alterations and additions, where an escalator or stair is provided where none existed previously and major structural modifications are necessary for the installation, an accessible route shall be provided between the levels served by the escalator or stair unless exempted by 206.2.3 Exceptions 1 through 7.
206.2.4 Spaces and Elements. At least one accessible route shall connect accessible building or facility entrances with all accessible spaces and elements within the building or facility which are otherwise connected by a circulation path unless exempted by 206.2.3 Exceptions 1 through 7.
2. In assembly areas with fixed seating required to comply with 221, an accessible route shall not be required to serve fixed seating where wheelchair spaces required to be on an accessible route are not provided.
3. Accessible routes shall not be required to connect mezzanines where buildings or facilities have no more than one story. In addition, accessible routes shall not be required to connect stories or mezzanines where multi-story buildings or facilities are exempted by 206.2.3 Exceptions 1 through 7.
206.2.5 Restaurants and Cafeterias. In restaurants and cafeterias, an accessible route shall be provided to all dining areas, including raised or sunken dining areas, and outdoor dining areas.
2. In alterations, an accessible route shall not be required to existing raised or sunken dining areas, or to all parts of existing outdoor dining areas where the same services and decor are provided in an accessible space usable by the public and not restricted to use by people with disabilities.
3. In sports facilities, tiered dining areas providing seating required to comply with 221 shall be required to have accessible routes serving at least 25 percent of the dining area provided that accessible routes serve seating complying with 221 and each tier is provided with the same services.
206.2.6 Performance Areas. Where a circulation path directly connects a performance area to an assembly seating area, an accessible route shall directly connect the assembly seating area with the performance area. An accessible route shall be provided from performance areas to ancillary areas or facilities used by performers unless exempted by 206.2.3 Exceptions 1 through 7.
206.2.7 Press Boxes. Press boxes in assembly areas shall be on an accessible route.
2. An accessible route shall not be required to free-standing press boxes that are elevated above grade 12 feet (3660 mm) minimum provided that the aggregate area of all press boxes is 500 square feet (46 m
206.2.8 Employee Work Areas. Common use circulation paths within employee work areas shall comply with 402.
2. Common use circulation paths located within employee work areas that are an integral component of work area equipment shall not be required to comply with 402.
3. Common use circulation paths located within exterior employee work areas that are fully exposed to the weather shall not be required to comply with 402.
206.2.9 Amusement Rides. Amusement rides required to comply with 234 shall provide accessible routes in accordance with 206.2.9. Accessible routes serving amusement rides shall comply with Chapter 4 except as modified by 1002.2.
206.2.9.1 Load and Unload Areas. Load and unload areas shall be on an accessible route. Where load and unload areas have more than one loading or unloading position, at least one loading and unloading position shall be on an accessible route.
206.2.9.2 Wheelchair Spaces, Ride Seats Designed for Transfer, and Transfer Devices. When amusement rides are in the load and unload position, wheelchair spaces complying with 1002.4, amusement ride seats designed for transfer complying with 1002.5, and transfer devices complying with 1002.6 shall be on an accessible route.
206.2.10 Recreational Boating Facilities. Boat slips required to comply with 235.2 and boarding piers at boat launch ramps required to comply with 235.3 shall be on an accessible route. Accessible routes serving recreational boating facilities shall comply with Chapter 4, except as modified by 1003.2.
206.2.11 Bowling Lanes. Where bowling lanes are provided, at least 5 percent, but no fewer than one of each type of bowling lane, shall be on an accessible route.
206.2.12 Court Sports. In court sports, at least one accessible route shall directly connect both sides of the court.
206.2.13 Exercise Machines and Equipment. Exercise machines and equipment required to comply with 236 shall be on an accessible route.
206.2.14 Fishing Piers and Platforms. Fishing piers and platforms shall be on an accessible route. Accessible routes serving fishing piers and platforms shall comply with Chapter 4 except as modified by 1005.1.
206.2.15 Golf Facilities. At least one accessible route shall connect accessible elements and spaces within the boundary of the golf course. In addition, accessible routes serving golf car rental areas; bag drop areas; course weather shelters complying with 238.2.3; course toilet rooms; and practice putting greens, practice teeing grounds, and teeing stations at driving ranges complying with 238.3 shall comply with Chapter 4 except as modified by 1006.2.
206.2.16 Miniature Golf Facilities. Holes required to comply with 239.2, including the start of play, shall be on an accessible route. Accessible routes serving miniature golf facilities shall comply with Chapter 4 except as modified by 1007.2.
206.2.17 Play Areas. Play areas shall provide accessible routes in accordance with 206.2.17. Accessible routes serving play areas shall comply with Chapter 4 except as modified by 1008.2.
206.2.17.1 Ground Level and Elevated Play Components. At least one accessible route shall be provided within the play area. The accessible route shall connect ground level play components required to comply with 240.2.1 and elevated play components required to comply with 240.2.2, including entry and exit points of the play components.
206.2.17.2 Soft Contained Play Structures. Where three or fewer entry points are provided for soft contained play structures, at least one entry point shall be on an accessible route. Where four or more entry points are provided for soft contained play structures, at least two entry points shall be on an accessible route.
206.3 Location. Accessible routes shall coincide with or be located in the same area as general circulation paths. Where circulation paths are interior, required accessible routes shall also be interior.
206.4 Entrances. Entrances shall be provided in accordance with 206.4. Entrance doors, doorways, and gates shall comply with 404 and shall be on an accessible route complying with 402.
2. Where exceptions for alterations to qualified historic buildings or facilities are permitted by 202.5, no more than one public entrance shall be required to comply with 206.4. Where no public entrance can comply with 206.4 under criteria established in 202.5 Exception, then either an unlocked entrance not used by the public shall comply with 206.4; or a locked entrance complying with 206.4 with a notification system or remote monitoring shall be provided.
206.4.1 Public Entrances. In addition to entrances required by 206.4.2 through 206.4.9, at least 60 percent of all public entrances shall comply with 404.
206.4.2 Parking Structure Entrances. Where direct access is provided for pedestrians from a parking structure to a building or facility entrance, each direct access to the building or facility entrance shall comply with 404.
206.4.3 Entrances from Tunnels or Elevated Walkways. Where direct access is provided for pedestrians from a pedestrian tunnel or elevated walkway to a building or facility, at least one direct entrance to the building or facility from each tunnel or walkway shall comply with 404.
206.4.4 Transportation Facilities. In addition to the requirements of 206.4.2, 206.4.3, and 206.4.5 through 206.4.9, transportation facilities shall provide entrances in accordance with 206.4.4.
206.4.4.1 Location. In transportation facilities, where different entrances serve different transportation fixed routes or groups of fixed routes, at least one public entrance serving each fixed route or group of fixed routes shall comply with 404.
206.4.4.2 Direct Connections. Direct connections to other facilities shall provide an accessible route complying with 404 from the point of connection to boarding platforms and all transportation system elements required to be accessible. Any elements provided to facilitate future direct connections shall be on an accessible route connecting boarding platforms and all transportation system elements required to be accessible.
206.4.4.3 Key Stations and Intercity Rail Stations. Key stations and existing intercity rail stations required by Subpart C of 49 CFR part 37 to be altered, shall have at least one entrance complying with 404.
206.4.5 Tenant Spaces. At least one accessible entrance to each tenancy in a facility shall comply with 404.
206.4.6 Residential Dwelling Unit Primary Entrance. In residential dwelling units required to provide mobility features complying with 809.2, at least one primary entrance shall comply with 404. The primary entrance to a residential dwelling unit shall not be to a bedroom.
206.4.7 Restricted Entrances. Where restricted entrances are provided to a building or facility, at least one restricted entrance to the building or facility shall comply with 404.
206.4.8 Service Entrances. If a service entrance is the only entrance to a building or to a tenancy in a facility, that entrance shall comply with 404.
206.4.9 Entrances for Inmates or Detainees. Where entrances used only by inmates or detainees and security personnel are provided at judicial facilities, detention facilities, or correctional facilities, at least one such entrance shall comply with 404.
206.5 Doors, Doorways, and Gates. Doors, doorways, and gates providing user passage shall be provided in accordance with 206.5.
206.5.1 Entrances. Each entrance to a building or facility required to comply with 206.4 shall have at least one door, doorway, or gate complying with 404.
206.5.2 Rooms and Spaces. Within a building or facility, at least one door, doorway, or gate serving each room or space complying with these requirements shall comply with 404.
206.5.3 Transient Lodging Facilities. In transient lodging facilities, entrances, doors, and doorways providing user passage into and within guest rooms that are not required to provide mobility features complying with 806.2 shall comply with 404.2.3.
206.5.4 Residential Dwelling Units. In residential dwelling units required to provide mobility features complying with 809.2, all doors and doorways providing user passage shall comply with 404.
206.6 Elevators. Elevators provided for passengers shall comply with 407. Where multiple elevators are provided, each elevator shall comply with 407.
2. Elevators complying with 408 or 409 shall be permitted in multi-story residential dwelling units.
206.6.1 Existing Elevators. Where elements of existing elevators are altered, the same element shall also be altered in all elevators that are programmed to respond to the same hall call control as the altered elevator and shall comply with the requirements of 407 for the altered element.
206.7 Platform Lifts. Platform lifts shall comply with 410. Platform lifts shall be permitted as a component of an accessible route in new construction in accordance with 206.7. Platform lifts shall be permitted as a component of an accessible route in an existing building or facility. In emergency transportable housing units, platform lifts shall not be used at the primary entrance to a unit required to provide mobility features complying with 809.2.
206.7.1 Performance Areas and Speakers’ Platforms. Platform lifts shall be permitted to provide accessible routes to performance areas and speakers’ platforms.
206.7.2 Wheelchair Spaces. Platform lifts shall be permitted to provide an accessible route to comply with the wheelchair space dispersion and line-of-sight requirements of 221 and 802.
206.7.3 Incidental Spaces. Platform lifts shall be permitted to provide an accessible route to incidental spaces which are not public use spaces and which are occupied by five persons maximum.
206.7.4 Judicial Spaces. Platform lifts shall be permitted to provide an accessible route to: jury boxes and witness stands; raised courtroom stations including, judges’ benches, clerks’ stations, bailiffs’ stations, deputy clerks’ stations, and court reporters’ stations; and to depressed areas such as the well of a court.
206.7.5 Existing Site Constraints. Platform lifts shall be permitted where existing exterior site constraints make use of a ramp or elevator infeasible.
206.7.6 Guest Rooms and Residential Dwelling Units. Platform lifts shall be permitted to connect levels within transient lodging guest rooms required to provide mobility features complying with 806.2 or residential dwelling units required to provide mobility features complying with 809.2.
206.7.7 Amusement Rides. Platform lifts shall be permitted to provide accessible routes to load and unload areas serving amusement rides.
206.7.8 Play Areas. Platform lifts shall be permitted to provide accessible routes to play components or soft contained play structures.
206.7.9 Team or Player Seating. Platform lifts shall be permitted to provide accessible routes to team or player seating areas serving areas of sport activity.
206.7.10 Recreational Boating Facilities and Fishing Piers and Platforms. Platform lifts shall be permitted to be used instead of gangways that are part of accessible routes serving recreational boating facilities and fishing piers and platforms.
206.8 Security Barriers. Security barriers, including but not limited to, security bollards and security check points, shall not obstruct a required accessible route or accessible means of egress.
207.1 General. Means of egress shall comply with section 1003.2.13 of the International Building Code (2000 edition and 2001 Supplement) or section 1007 of the International Building Code (2003 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1).
2. Areas of refuge shall not be required in detention and correctional facilities.
207.2 Platform Lifts. Standby power shall be provided for platform lifts permitted by section 1003.2.13.4 of the International Building Code (2000 edition and 2001 Supplement) or section 1007.5 of the International Building Code (2003 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1) to serve as a part of an accessible means of egress.
208.1 General. Where parking spaces are provided, parking spaces shall be provided in accordance with 208.
208.2 Minimum Number. Parking spaces complying with 502 shall be provided in accordance with Table 208.2 except as required by 208.2.1, 208.2.2, and 208.2.3. Where more than one parking facility is provided on a site, the number of accessible spaces provided on the site shall be calculated according to the number of spaces required for each parking facility.
Table 208.2—Parking Spaces
| Total number of parking spaces provided in parking facility | Minimum number of required accessible parking spaces |
|---|---|
| 1 to 25 | 1. |
| 26 to 50 | 2. |
| 51 to 75 | 3. |
| 76 to 100 | 4. |
| 101 to 150 | 5. |
| 151 to 200 | 6. |
| 201 to 300 | 7. |
| 301 to 400 | 8. |
| 401 to 500 | 9. |
| 501 to 1000 | 2 percent of total. |
| 1001 and over | 20, plus 1 for each 100, or fraction thereof, over 1000. |
208.2.1 Hospital Outpatient Facilities. Ten percent of patient and visitor parking spaces provided to serve hospital outpatient facilities shall comply with 502.
208.2.2 Rehabilitation Facilities and Outpatient Physical Therapy Facilities. Twenty percent of patient and visitor parking spaces provided to serve rehabilitation facilities specializing in treating conditions that affect mobility and outpatient physical therapy facilities shall comply with 502.
208.2.3 Residential Facilities. Parking spaces provided to serve facilities with residential dwelling units shall comply with 208.2.3.
208.2.3.1 Parking for Residents. Where at least one parking space is provided for each residential dwelling unit, at least one parking space complying with 502 shall be provided for each residential dwelling unit required to provide mobility features complying with 809.2.
208.2.3.2 Additional Parking Spaces for Residents. Where the total number of parking spaces provided for each residential dwelling unit exceeds one parking space per residential dwelling unit, 2 percent, but no fewer than one space, of all the parking spaces not covered by 208.2.3.1 shall comply with 502.
208.2.3.3 Parking for Guests, Employees, and Other Non-Residents. Where parking spaces are provided for persons other than residents, parking shall be provided in accordance with Table 208.2.
208.2.4 Van Parking Spaces. For every six or fraction of six parking spaces required by 208.2 to comply with 502, at least one shall be a van parking space complying with 502.
208.3 Location. Parking facilities shall comply with 208.3.
208.3.1 General. Parking spaces complying with 502 that serve a particular building or facility shall be located on the shortest accessible route from parking to an entrance complying with 206.4. Where parking serves more than one accessible entrance, parking spaces complying with 502 shall be dispersed and located on the shortest accessible route to the accessible entrances. In parking facilities that do not serve a particular building or facility, parking spaces complying with 502 shall be located on the shortest accessible route to an accessible pedestrian entrance of the parking facility.
2. Parking spaces shall be permitted to be located in different parking facilities if substantially equivalent or greater accessibility is provided in terms of distance from an accessible entrance or entrances, parking fee, and user convenience.
208.3.2 Residential Facilities. In facilities containing residential dwelling units required to provide mobility features complying with 809.2, parking spaces provided in accordance with 208.2.3.1 shall be located on the shortest accessible route to the residential dwelling unit entrance they serve. Spaces provided in accordance with 208.2.3.2 shall be dispersed throughout all types of parking provided for the residential dwelling units.
209.1 General. Passenger loading zones shall be provided in accordance with 209.
209.2 Type. Where provided, passenger loading zones shall comply with 209.2.
209.2.1 Passenger Loading Zones. Passenger loading zones, except those required to comply with 209.2.2 and 209.2.3, shall provide at least one passenger loading zone complying with 503 in every continuous 100 linear feet (30 m) of loading zone space, or fraction thereof.
209.2.2 Bus Loading Zones. In bus loading zones restricted to use by designated or specified public transportation vehicles, each bus bay, bus stop, or other area designated for lift or ramp deployment shall comply with 810.2.
209.2.3 On-Street Bus Stops. On-street bus stops shall comply with 810.2 to the maximum extent practicable.
209.3 Medical Care and Long-Term Care Facilities. At least one passenger loading zone complying with 503 shall be provided at an accessible entrance to licensed medical care and licensed long-term care facilities where the period of stay exceeds twenty-four hours.
209.4 Valet Parking. Parking facilities that provide valet parking services shall provide at least one passenger loading zone complying with 503.
209.5 Mechanical Access Parking Garages. Mechanical access parking garages shall provide at least one passenger loading zone complying with 503 at vehicle drop-off and vehicle pick-up areas.
210.1 General. Interior and exterior stairs that are part of a means of egress shall comply with 504.
2. In alterations, stairs between levels that are connected by an accessible route shall not be required to comply with 504, except that handrails complying with 505 shall be provided when the stairs are altered.
3. In assembly areas, aisle stairs shall not be required to comply with 504.
4. Stairs that connect play components shall not be required to comply with 504.
211.1 General. Where drinking fountains are provided on an exterior site, on a floor, or within a secured area they shall be provided in accordance with 211.
211.2 Minimum Number. No fewer than two drinking fountains shall be provided. One drinking fountain shall comply with 602.1 through 602.6 and one drinking fountain shall comply with 602.7.
211.3 More Than Minimum Number. Where more than the minimum number of drinking fountains specified in 211.2 are provided, 50 percent of the total number of drinking fountains provided shall comply with 602.1 through 602.6, and 50 percent of the total number of drinking fountains provided shall comply with 602.7.
212.1 General. Where provided, kitchens, kitchenettes, and sinks shall comply with 212.
212.2 Kitchens and Kitchenettes. Kitchens and kitchenettes shall comply with 804.
212.3 Sinks. Where sinks are provided, at least 5 percent, but no fewer than one, of each type provided in each accessible room or space shall comply with 606.
213.1 General. Where toilet facilities and bathing facilities are provided, they shall comply with 213. Where toilet facilities and bathing facilities are provided in facilities permitted by 206.2.3 Exceptions 1 and 2 not to connect stories by an accessible route, toilet facilities and bathing facilities shall be provided on a story connected by an accessible route to an accessible entrance.
213.2 Toilet Rooms and Bathing Rooms. Where toilet rooms are provided, each toilet room shall comply with 603. Where bathing rooms are provided, each bathing room shall comply with 603.
2. Where exceptions for alterations to qualified historic buildings or facilities are permitted by 202.5, no fewer than one toilet room for each sex complying with 603 or one unisex toilet room complying with 213.2.1 shall be provided.
3. Where multiple single user portable toilet or bathing units are clustered at a single location, no more than 5 percent of the toilet units and bathing units at each cluster shall be required to comply with 603. Portable toilet units and bathing units complying with 603 shall be identified by the International Symbol of Accessibility complying with 703.7.2.1.
4. Where multiple single user toilet rooms are clustered at a single location, no more than 50 percent of the single user toilet rooms for each use at each cluster shall be required to comply with 603.
213.2.1 Unisex (Single-Use or Family) Toilet and Unisex Bathing Rooms. Unisex toilet rooms shall contain not more than one lavatory, and two water closets without urinals or one water closet and one urinal. Unisex bathing rooms shall contain one shower or one shower and one bathtub, one lavatory, and one water closet. Doors to unisex toilet rooms and unisex bathing rooms shall have privacy latches.
213.3 Plumbing Fixtures and Accessories. Plumbing fixtures and accessories provided in a toilet room or bathing room required to comply with 213.2 shall comply with 213.3.
213.3.1 Toilet Compartments. Where toilet compartments are provided, at least one toilet compartment shall comply with 604.8.1. In addition to the compartment required to comply with 604.8.1, at least one compartment shall comply with 604.8.2 where six or more toilet compartments are provided, or where the combination of urinals and water closets totals six or more fixtures.
213.3.2 Water Closets. Where water closets are provided, at least one shall comply with 604.
213.3.3 Urinals. Where more than one urinal is provided, at least one shall comply with 605.
213.3.4 Lavatories. Where lavatories are provided, at least one shall comply with 606 and shall not be located in a toilet compartment.
213.3.5 Mirrors. Where mirrors are provided, at least one shall comply with 603.3.
213.3.6 Bathing Facilities. Where bathtubs or showers are provided, at least one bathtub complying with 607 or at least one shower complying with 608 shall be provided.
213.3.7 Coat Hooks and Shelves. Where coat hooks or shelves are provided in toilet rooms without toilet compartments, at least one of each type shall comply with 603.4. Where coat hooks or shelves are provided in toilet compartments, at least one of each type complying with 604.8.3 shall be provided in toilet compartments required to comply with 213.3.1. Where coat hooks or shelves are provided in bathing facilities, at least one of each type complying with 603.4 shall serve fixtures required to comply with 213.3.6.
214.1 General. Where provided, washing machines and clothes dryers shall comply with 214.
214.2 Washing Machines. Where three or fewer washing machines are provided, at least one shall comply with 611. Where more than three washing machines are provided, at least two shall comply with 611.
214.3 Clothes Dryers. Where three or fewer clothes dryers are provided, at least one shall comply with 611. Where more than three clothes dryers are provided, at least two shall comply with 611.
215.1 General. Where fire alarm systems provide audible alarm coverage, alarms shall comply with 215.
215.2 Public and Common Use Areas. Alarms in public use areas and common use areas shall comply with 702.
215.3 Employee Work Areas. Where employee work areas have audible alarm coverage, the wiring system shall be designed so that visible alarms complying with 702 can be integrated into the alarm system.
215.4 Transient Lodging. Guest rooms required to comply with 224.4 shall provide alarms complying with 702.
215.5 Residential Dwelling Units. Where provided in residential dwelling units required to provide communication features complying with 809.3, alarms shall comply with 702.
216.1 General. Signs shall be provided in accordance with 216 and shall comply with 703.
2. In parking facilities, signs shall not be required to comply with 216.2, 216.3, and 216.6 through 216.12.
3. Temporary, 7 days or less, signs shall not be required to comply with 216.
4. In detention and correctional facilities, signs not located in public use areas shall not be required to comply with 216.
216.2 Designations. Interior and exterior signs identifying permanent rooms and spaces shall comply with 703.1, 703.2, and 703.5. Where pictograms are provided as designations of permanent interior rooms and spaces, the pictograms shall comply with 703.6 and shall have text descriptors complying with 703.2 and 703.5.
216.3 Directional and Informational Signs. Signs that provide direction to or information about interior spaces and facilities of the site shall comply with 703.5.
216.4 Means of Egress. Signs for means of egress shall comply with 216.4.
216.4.1 Exit Doors. Doors at exit passageways, exit discharge, and exit stairways shall be identified by tactile signs complying with 703.1, 703.2, and 703.5.
216.4.2 Areas of Refuge. Signs required by section 1003.2.13.5.4 of the International Building Code (2000 edition) or section 1007.6.4 of the International Building Code (2003 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1) to provide instructions in areas of refuge shall comply with 703.5.
216.4.3 Directional Signs. Signs required by section 1003.2.13.6 of the International Building Code (2000 edition) or section 1007.7 of the International Building Code (2003 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1) to provide directions to accessible means of egress shall comply with 703.5.
216.5 Parking. Parking spaces complying with 502 shall be identified by signs complying with 502.6.
2. In residential facilities, where parking spaces are assigned to specific residential dwelling units, identification of accessible parking spaces shall not be required.
216.6 Entrances. Where not all entrances comply with 404, entrances complying with 404 shall be identified by the International Symbol of Accessibility complying with 703.7.2.1. Directional signs complying with 703.5 that indicate the location of the nearest entrance complying with 404 shall be provided at entrances that do not comply with 404.
216.7 Elevators. Where existing elevators do not comply with 407, elevators complying with 407 shall be clearly identified with the International Symbol of Accessibility complying with 703.7.2.1.
216.8 Toilet Rooms and Bathing Rooms. Where existing toilet rooms or bathing rooms do not comply with 603, directional signs indicating the location of the nearest toilet room or bathing room complying with 603 within the facility shall be provided. Signs shall comply with 703.5 and shall include the International Symbol of Accessibility complying with 703.7.2.1. Where existing toilet rooms or bathing rooms do not comply with 603, the toilet rooms or bathing rooms complying with 603 shall be identified by the International Symbol of Accessibility complying with 703.7.2.1. Where clustered single user toilet rooms or bathing facilities are permitted to use exceptions to 213.2, toilet rooms or bathing facilities complying with 603 shall be identified by the International Symbol of Accessibility complying with 703.7.2.1 unless all toilet rooms and bathing facilities comply with 603.
216.9 TTYs. Identification and directional signs for public TTYs shall be provided in accordance with 216.9.
216.9.1 Identification Signs. Public TTYs shall be identified by the International Symbol of TTY complying with 703.7.2.2.
216.9.2 Directional Signs. Directional signs indicating the location of the nearest public TTY shall be provided at all banks of public pay telephones not containing a public TTY. In addition, where signs provide direction to public pay telephones, they shall also provide direction to public TTYs. Directional signs shall comply with 703.5 and shall include the International Symbol of TTY complying with 703.7.2.2.
216.10 Assistive Listening Systems. Each assembly area required by 219 to provide assistive listening systems shall provide signs informing patrons of the availability of the assistive listening system. Assistive listening signs shall comply with 703.5 and shall include the International Symbol of Access for Hearing Loss complying with 703.7.2.4.
216.11 Check-Out Aisles. Where more than one check-out aisle is provided, check-out aisles complying with 904.3 shall be identified by the International Symbol of Accessibility complying with 703.7.2.1. Where check-out aisles are identified by numbers, letters, or functions, signs identifying check-out aisles complying with 904.3 shall be located in the same location as the checkout aisle identification.
216.12 Amusement Rides. Signs identifying the type of access provided on amusement rides shall be provided at entries to queues and waiting lines. In addition, where accessible unload areas also serve as accessible load areas, signs indicating the location of the accessible load and unload areas shall be provided at entries to queues and waiting lines.
217.1 General. Where coin-operated public pay telephones, coinless public pay telephones, public closed-circuit telephones, public courtesy phones, or other types of public telephones are provided, public telephones shall be provided in accordance with 217 for each type of public telephone provided. For purposes of this section, a bank of telephones shall be considered to be two or more adjacent telephones.
217.2 Wheelchair Accessible Telephones. Where public telephones are provided, wheelchair accessible telephones complying with 704.2 shall be provided in accordance with Table 217.2.
Table 217.2—Wheelchair Accessible Telephones
| Number of telephones provided on a floor, level, or exterior site | Minimum number of required wheelchair accessible telephones |
|---|---|
| 1 or more single units | 1 per floor, level, and exterior site. |
| 1 bank | 1 per floor, level, and exterior site. |
| 2 or more banks | 1 per bank. |
217.3 Volume Controls. All public telephones shall have volume controls complying with 704.3.
217.4 TTYs. TTYs complying with 704.4 shall be provided in accordance with 217.4.
217.4.1 Bank Requirement. Where four or more public pay telephones are provided at a bank of telephones, at least one public TTY complying with 704.4 shall be provided at that bank.
217.4.2 Floor Requirement. TTYs in public buildings shall be provided in accordance with 217.4.2.1. TTYs in private buildings shall be provided in accordance with 217.4.2.2.
217.4.2.1 Public Buildings. Where at least one public pay telephone is provided on a floor of a public building, at least one public TTY shall be provided on that floor.
217.4.2.2 Private Buildings. Where four or more public pay telephones are provided on a floor of a private building, at least one public TTY shall be provided on that floor.
217.4.3 Building Requirement. TTYs in public buildings shall be provided in accordance with 217.4.3.1. TTYs in private buildings shall be provided in accordance with 217.4.3.2.
217.4.3.1 Public Buildings. Where at least one public pay telephone is provided in a public building, at least one public TTY shall be provided in the building. Where at least one public pay telephone is provided in a public use area of a public building, at least one public TTY shall be provided in the public building in a public use area.
217.4.3.2 Private Buildings. Where four or more public pay telephones are provided in a private building, at least one public TTY shall be provided in the building.
217.4.4 Exterior Site Requirement. Where four or more public pay telephones are provided on an exterior site, at least one public TTY shall be provided on the site.
217.4.5 Rest Stops, Emergency Roadside Stops, and Service Plazas. Where at least one public pay telephone is provided at a public rest stop, emergency roadside stop, or service plaza, at least one public TTY shall be provided.
217.4.6 Hospitals. Where at least one public pay telephone is provided serving a hospital emergency room, hospital recovery room, or hospital waiting room, at least one public TTY shall be provided at each location.
217.4.7 Transportation Facilities. In transportation facilities, in addition to the requirements of 217.4.1 through 217.4.4, where at least one public pay telephone serves a particular entrance to a bus or rail facility, at least one public TTY shall be provided to serve that entrance. In airports, in addition to the requirements of 217.4.1 through 217.4.4, where four or more public pay telephones are located in a terminal outside the security areas, a concourse within the security areas, or a baggage claim area in a terminal, at least one public TTY shall be provided in each location.
217.4.8 Detention and Correctional Facilities. In detention and correctional facilities, where at least one pay telephone is provided in a secured area used only by detainees or inmates and security personnel, at least one TTY shall be provided in at least one secured area.
217.5 Shelves for Portable TTYs. Where a bank of telephones in the interior of a building consists of three or more public pay telephones, at least one public pay telephone at the bank shall be provided with a shelf and an electrical outlet in accordance with 704.5.
2. The shelf and electrical outlet shall not be required at a bank of telephones with a TTY.
218.1 General. Transportation facilities shall comply with 218.
218.2 New and Altered Fixed Guideway Stations. New and altered stations in rapid rail, light rail, commuter rail, intercity rail, high speed rail, and other fixed guideway systems shall comply with 810.5 through 810.10.
218.3 Key Stations and Existing Intercity Rail Stations. Key stations and existing intercity rail stations shall comply with 810.5 through 810.10.
218.4 Bus Shelters. Where provided, bus shelters shall comply with 810.3.
218.5 Other Transportation Facilities. In other transportation facilities, public address systems shall comply with 810.7 and clocks shall comply with 810.8.
219.1 General. Assistive listening systems shall be provided in accordance with 219 and shall comply with 706.
219.2 Required Systems. In each assembly area where audible communication is integral to the use of the space, an assistive listening system shall be provided.
219.3 Receivers. Receivers complying with 706.2 shall be provided for assistive listening systems in each assembly area in accordance with Table 219.3. Twenty-five percent minimum of receivers provided, but no fewer than two, shall be hearing-aid compatible in accordance with 706.3.
2. Where all seats in an assembly area are served by an induction loop assistive listening system, the minimum number of receivers required by Table 219.3 to be hearing-aid compatible shall not be required to be provided.
Table 219.3—Receivers for Assistive Listening Systems
| Capacity of seating in assembly area | Minimum number of required receivers | Minimum number of required receivers required to be hearing-aid compatible |
|---|---|---|
| 50 or less | 2 | 2. |
| 51 to 200 | 2, plus 1 per 25 seats over 50 seats | 2. |
| 201 to 500 | 2, plus 1 per 25 seats over 50 seats 1 | 1 per 4 receivers. 1 |
| 501 to 1000 | 20, plus 1 per 33 seats over 500 seats 1 | 1 per 4 receivers. 1 |
| 1001 to 2000 | 35, plus 1 per 50 seats over 1000 seats 1 | 1 per 4 receivers. 1 |
| 2001 and over | 55 plus 1 per 100 seats over 2000 seats 1 | 1 per 4 receivers. 1 |
1 Or fraction thereof.
220.1 General. Where automatic teller machines or self-service fare vending, collection, or adjustment machines are provided, at least one of each type provided at each location shall comply with 707. Where bins are provided for envelopes, waste paper, or other purposes, at least one of each type shall comply with 811.
221.1 General. Assembly areas shall provide wheelchair spaces, companion seats, and designated aisle seats complying with 221 and 802. In addition, lawn seating shall comply with 221.5.
221.2 Wheelchair Spaces. Wheelchair spaces complying with 221.2 shall be provided in assembly areas with fixed seating.
221.2.1 Number and Location. Wheelchair spaces shall be provided complying with 221.2.1.
221.2.1.1 General Seating. Wheelchair spaces complying with 802.1 shall be provided in accordance with Table 221.2.1.1.
Table 221.2.1.1—Number of Wheelchair Spaces in Assembly Areas
| Number of seats | Minimum number of required wheelchair spaces |
|---|---|
| 4 to 25 | 1. |
| 26 to 50 | 2. |
| 51 to 150 | 4. |
| 151 to 300 | 5. |
| 301 to 500 | 6. |
| 501 to 5000 | 6, plus 1 for each 150, or fraction thereof, between 501 through 5000. |
| 5001 and over | 36, plus 1 for each 200, or fraction thereof, over 5000. |
221.2.1.2 Luxury Boxes, Club Boxes, and Suites in Arenas, Stadiums, and Grandstands. In each luxury box, club box, and suite within arenas, stadiums, and grandstands, wheelchair spaces complying with 802.1 shall be provided in accordance with Table 221.2.1.1.
221.2.1.3 Other Boxes. In boxes other than those required to comply with 221.2.1.2, the total number of wheelchair spaces required shall be determined in accordance with Table 221.2.1.1. Wheelchair spaces shall be located in not less than 20 percent of all boxes provided. Wheelchair spaces shall comply with 802.1.
221.2.1.4 Team or Player Seating. At least one wheelchair space complying with 802.1 shall be provided in team or player seating areas serving areas of sport activity.
221.2.2 Integration. Wheelchair spaces shall be an integral part of the seating plan.
221.2.3 Lines of Sight and Dispersion. Wheelchair spaces shall provide lines of sight complying with 802.2 and shall comply with 221.2.3. In providing lines of sight, wheelchair spaces shall be dispersed. Wheelchair spaces shall provide spectators with choices of seating locations and viewing angles that are substantially equivalent to, or better than, the choices of seating locations and viewing angles available to all other spectators. When the number of wheelchair spaces required by 221.2.1 has been met, further dispersion shall not be required.
221.2.3.1 Horizontal Dispersion. Wheelchair spaces shall be dispersed horizontally.
2. In row seating, two wheelchair spaces shall be permitted to be located side-by-side.
221.2.3.2 Vertical Dispersion. Wheelchair spaces shall be dispersed vertically at varying distances from the screen, performance area, or playing field. In addition, wheelchair spaces shall be located in each balcony or mezzanine that is located on an accessible route.
2. In bleachers, wheelchair spaces shall not be required to be provided in rows other than rows at points of entry to bleacher seating.
221.3 Companion Seats. At least one companion seat complying with 802.3 shall be provided for each wheelchair space required by 221.2.1.
221.4 Designated Aisle Seats. At least 5 percent of the total number of aisle seats provided shall comply with 802.4 and shall be the aisle seats located closest to accessible routes.
221.5 Lawn Seating. Lawn seating areas and exterior overflow seating areas, where fixed seats are not provided, shall connect to an accessible route.
222.1 General. Where dressing rooms, fitting rooms, or locker rooms are provided, at least 5 percent, but no fewer than one, of each type of use in each cluster provided shall comply with 803.
222.2 Coat Hooks and Shelves. Where coat hooks or shelves are provided in dressing, fitting or locker rooms without individual compartments, at least one of each type shall comply with 803.5. Where coat hooks or shelves are provided in individual compartments at least one of each type complying with 803.5 shall be provided in individual compartments in dressing, fitting, or locker rooms required to comply with 222.1.
223.1 General. In licensed medical care facilities and licensed long-term care facilities where the period of stay exceeds twenty four hours, patient or resident sleeping rooms shall be provided in accordance with 223.
223.1.1 Alterations. Where sleeping rooms are altered or added, the requirements of 223 shall apply only to the sleeping rooms being altered or added until the number of sleeping rooms complies with the minimum number required for new construction.
223.2 Hospitals, Rehabilitation Facilities, Psychiatric Facilities and Detoxification Facilities. Hospitals, rehabilitation facilities, psychiatric facilities and detoxification facilities shall comply with 223.2.
223.2.1 Facilities Not Specializing in Treating Conditions That Affect Mobility. In facilities not specializing in treating conditions that affect mobility, at least 10 percent, but no fewer than one, of the patient sleeping rooms shall provide mobility features complying with 805.
223.2.2 Facilities Specializing in Treating Conditions That Affect Mobility. In facilities specializing in treating conditions that affect mobility, 100 percent of the patient sleeping rooms shall provide mobility features complying with 805.
223.3 Long-Term Care Facilities. In licensed long-term care facilities, at least 50 percent, but no fewer than one, of each type of resident sleeping room shall provide mobility features complying with 805.
224.1 General. Transient lodging facilities shall provide guest rooms in accordance with 224.
224.1.1 Alterations. Where guest rooms are altered or added, the requirements of 224 shall apply only to the guest rooms being altered or added until the number of guest rooms complies with the minimum number required for new construction.
224.1.2 Guest Room Doors and Doorways. Entrances, doors, and doorways providing user passage into and within guest rooms that are not required to provide mobility features complying with 806.2 shall comply with 404.2.3.
224.2 Guest Rooms with Mobility Features. In transient lodging facilities, guest rooms with mobility features complying with 806.2 shall be provided in accordance with Table 224.2.
Table 224.2—Guest Rooms With Mobility Features
| Total number of guest rooms provided | Minimum number of required rooms without roll-in showers | Minimum number of required rooms with roll-in showers | Total number of required rooms |
|---|---|---|---|
| 1 to 25 | 1 | 0 | 1. |
| 26 to 50 | 2 | 0 | 2. |
| 51 to 75 | 3 | 1 | 4. |
| 76 to 100 | 4 | 1 | 5. |
| 101 to 150 | 5 | 2 | 7. |
| 151 to 200 | 6 | 2 | 8. |
| 201 to 300 | 7 | 3 | 10. |
| 301 to 400 | 8 | 4 | 12. |
| 401 to 500 | 9 | 4 | 13. |
| 501 to 1000 | 2 percent of total | 1 percent of total | 3 percent of total. |
| 1001 and over | 20, plus 1 for each 100, or fraction thereof, over 1000 | 10, plus 1 for each 100, or fraction thereof, over 1000 | 30, plus 2 for each 100, or fraction thereof, over 1000. |
224.3 Beds. In guest rooms having more than 25 beds, 5 percent minimum of the beds shall have clear floor space complying with 806.2.3.
224.4 Guest Rooms with Communication Features. In transient lodging facilities, guest rooms with communication features complying with 806.3 shall be provided in accordance with Table 224.4.
Table 224.4—Guest Rooms With Communication Features
| Total number of guest rooms provided | Minimum number of required guest rooms with communication features |
|---|---|
| 2 to 25 | 2. |
| 26 to 50 | 4. |
| 51 to 75 | 7. |
| 76 to 100 | 9. |
| 101 to 150 | 12. |
| 151 to 200 | 14. |
| 201 to 300 | 17. |
| 301 to 400 | 20. |
| 401 to 500 | 22. |
| 501 to 1000 | 5 percent of total. |
| 1001 and over | 50, plus 3 for each 100 over 1000. |
224.5 Dispersion. Guest rooms required to provide mobility features complying with 806.2 and guest rooms required to provide communication features complying with 806.3 shall be dispersed among the various classes of guest rooms, and shall provide choices of types of guest rooms, number of beds, and other amenities comparable to the choices provided to other guests. Where the minimum number of guest rooms required to comply with 806 is not sufficient to allow for complete dispersion, guest rooms shall be dispersed in the following priority: guest room type, number of beds, and amenities. At least one guest room required to provide mobility features complying with 806.2 shall also provide communication features complying with 806.3. Not more than 10 percent of guest rooms required to provide mobility features complying with 806.2 shall be used to satisfy the minimum number of guest rooms required to provide communication features complying with 806.3.
225.1 General. Storage facilities shall comply with 225.
225.2 Storage. Where storage is provided in accessible spaces, at least one of each type shall comply with 811.
225.2.1 Lockers. Where lockers are provided, at least 5 percent, but no fewer than one of each type, shall comply with 811.
225.2.2 Self-Service Shelving. Self-service shelves shall be located on an accessible route complying with 402. Self-service shelving shall not be required to comply with 308.
225.3 Self-Service Storage Facilities. Self-service storage facilities shall provide individual self-service storage spaces complying with these requirements in accordance with Table 225.3.
Table 225.3—Self-Service Storage Facilities
| Total spaces in facility | Minimum number of spaces required to be accessible |
|---|---|
| 1 to 200 | 5 percent, but no fewer than 1. |
| 201 and over | 10, plus 2 percent of total number of units over 200. |
225.3.1 Dispersion. Individual self-service storage spaces shall be dispersed throughout the various classes of spaces provided. Where more classes of spaces are provided than the number required to be accessible, the number of spaces shall not be required to exceed that required by Table 225.3. Self-service storage spaces complying with Table 225.3 shall not be required to be dispersed among buildings in a multi-building facility.
226.1 General. Where dining surfaces are provided for the consumption of food or drink, at least 5 percent of the seating spaces and standing spaces at the dining surfaces shall comply with 902. In addition, where work surfaces are provided for use by other than employees, at least 5 percent shall comply with 902.
2. Check writing surfaces provided at check-out aisles not required to comply with 904.3 shall not be required to comply with 902.
226.2 Dispersion. Dining surfaces and work surfaces required to comply with 902 shall be dispersed throughout the space or facility containing dining surfaces and work surfaces.
227.1 General. Where provided, check-out aisles, sales counters, service counters, food service lines, queues, and waiting lines shall comply with 227 and 904.
227.2 Check-Out Aisles. Where check-out aisles are provided, check-out aisles complying with 904.3 shall be provided in accordance with Table 227.2. Where check-out aisles serve different functions, check-out aisles complying with 904.3 shall be provided in accordance with Table 227.2 for each function. Where check-out aisles are dispersed throughout the building or facility, check-out aisles complying with 904.3 shall be dispersed.
Table 227.2—Check-Out Aisles
| Number of check-out aisles of each function | Minimum number of check-out aisles of each function required to comply with 904.3 |
|---|---|
| 1 to 4 | 1. |
| 5 to 8 | 2. |
| 9 to 15 | 3. |
| 16 and over | 3, plus 20 percent of additional aisles. |
227.2.1 Altered Check-Out Aisles. Where check-out aisles are altered, at least one of each check-out aisle serving each function shall comply with 904.3 until the number of check-out aisles complies with 227.2.
227.3 Counters. Where provided, at least one of each type of sales counter and service counter shall comply with 904.4. Where counters are dispersed throughout the building or facility, counters complying with 904.4 also shall be dispersed.
227.4 Food Service Lines. Food service lines shall comply with 904.5. Where self-service shelves are provided, at least 50 percent, but no fewer than one, of each type provided shall comply with 308.
227.5 Queues and Waiting Lines. Queues and waiting lines servicing counters or check-out aisles required to comply with 904.3 or 904.4 shall comply with 403.
228.1 General. Where provided, at least one of each type of depository, vending machine, change machine, and fuel dispenser shall comply with 309.
228.2 Mail Boxes. Where mail boxes are provided in an interior location, at least 5 percent, but no fewer than one, of each type shall comply with 309. In facilities with residential dwelling units, where mail boxes are provided for each residential dwelling unit, mail boxes complying with 309 shall be provided for each residential dwelling unit required to provide mobility features complying with 809.2.
229.1 General. Where glazed openings are provided in accessible rooms or spaces for operation by occupants, at least one opening shall comply with 309. Each glazed opening required by an administrative authority to be operable shall comply with 309.
2. Glazed openings in guest rooms required to provide communication features and in guest rooms required to comply with 206.5.3 shall not be required to comply with 229.
230.1 General. Where a two-way communication system is provided to gain admittance to a building or facility or to restricted areas within a building or facility, the system shall comply with 708.
231.1 General. Judicial facilities shall comply with 231.
231.2 Courtrooms. Each courtroom shall comply with 808.
231.3 Holding Cells. Where provided, central holding cells and court-floor holding cells shall comply with 231.3.
231.3.1 Central Holding Cells. Where separate central holding cells are provided for adult male, juvenile male, adult female, or juvenile female, one of each type shall comply with 807.2. Where central holding cells are provided and are not separated by age or sex, at least one cell complying with 807.2 shall be provided.
231.3.2 Court-Floor Holding Cells. Where separate court-floor holding cells are provided for adult male, juvenile male, adult female, or juvenile female, each courtroom shall be served by one cell of each type complying with 807.2. Where court-floor holding cells are provided and are not separated by age or sex, courtrooms shall be served by at least one cell complying with 807.2. Cells may serve more than one courtroom.
231.4 Visiting Areas. Visiting areas shall comply with 231.4.
231.4.1 Cubicles and Counters. At least 5 percent, but no fewer than one, of cubicles shall comply with 902 on both the visitor and detainee sides. Where counters are provided, at least one shall comply with 904.4.2 on both the visitor and detainee sides.
231.4.2 Partitions. Where solid partitions or security glazing separate visitors from detainees at least one of each type of cubicle or counter partition shall comply with 904.6.
232.1 General. Buildings, facilities, or portions thereof, in which people are detained for penal or correction purposes, or in which the liberty of the inmates is restricted for security reasons shall comply with 232.
232.2 General Holding Cells and General Housing Cells. General holding cells and general housing cells shall be provided in accordance with 232.2.
232.2.1 Cells with Mobility Features. At least 2 percent, but no fewer than one, of the total number of cells in a facility shall provide mobility features complying with 807.2.
232.2.1.1 Beds. In cells having more than 25 beds, at least 5 percent of the beds shall have clear floor space complying with 807.2.3.
232.2.2 Cells with Communication Features. At least 2 percent, but no fewer than one, of the total number of general holding cells and general housing cells equipped with audible emergency alarm systems and permanently installed telephones within the cell shall provide communication features complying with 807.3.
232.3 Special Holding Cells and Special Housing Cells. Where special holding cells or special housing cells are provided, at least one cell serving each purpose shall provide mobility features complying with 807.2. Cells subject to this requirement include, but are not limited to, those used for purposes of orientation, protective custody, administrative or disciplinary detention or segregation, detoxification, and medical isolation.
232.4 Medical Care Facilities. Patient bedrooms or cells required to comply with 223 shall be provided in addition to any medical isolation cells required to comply with 232.3.
232.5 Visiting Areas. Visiting areas shall comply with 232.5.
232.5.1 Cubicles and Counters. At least 5 percent, but no fewer than one, of cubicles shall comply with 902 on both the visitor and detainee sides. Where counters are provided, at least one shall comply with 904.4.2 on both the visitor and detainee or inmate sides.
232.5.2 Partitions. Where solid partitions or security glazing separate visitors from detainees or inmates at least one of each type of cubicle or counter partition shall comply with 904.6.
233.1 General. Facilities with residential dwelling units shall comply with 233.
233.2 Residential Dwelling Units Provided by Entities Subject to HUD Section 504 Regulations.
233.2 Residential Dwelling Units Provided by Entities Subject to HUD Section 504 Regulations. Where facilities with residential dwelling units are provided by entities subject to regulations issued by the Department of Housing and Urban Development (HUD) under section 504 of the Rehabilitation Act of 1973, as amended, such entities shall provide residential dwelling units with mobility features complying with 809.2 in a number required by the applicable HUD regulations. Residential dwelling units required to provide mobility features complying with 809.2 shall be on an accessible route as required by 206. In addition, such entities shall provide residential dwelling units with communication features complying with 809.3 in a number required by the applicable HUD regulations. Entities subject to 233.2 shall not be required to comply with 233.3.
233.3 Residential Dwelling Units Provided by Entities Not Subject to HUD Section 504 Regulations. Facilities with residential dwelling units provided by entities not subject to regulations issued by the Department of Housing and Urban Development (HUD) under Section 504 of the Rehabilitation Act of 1973, as amended, shall comply with 233.3.
233.3.1 Residential Dwelling Units with Mobility Features. Facilities, other than those containing emergency transportable housing units, shall comply with 233.3.1.1. Facilities containing emergency transportable housing units shall comply with 233.3.1.2.
233.3.1.1 Facilities Other Than Those Containing Emergency Transportable Housing Units. At least 5 percent, but no fewer than one, of the total number of residential dwelling units, other than emergency transportable housing units, in the facility shall provide mobility features complying with 809.2 and shall be on an accessible route as required by 206.
EXCEPTION: Where facilities contain 15 or fewer residential dwelling units, the requirements of 233.3.1.1 shall apply to the total number of residential dwelling units that are constructed under a single contract, or are developed as a whole, whether or not located on a common site.
233.3.1.2 Facilities Containing Emergency Transportable Housing Units. Emergency transportable housing units with mobility features shall be provided in accordance with 233.3.1.2.
233.3.1.2.1 Private Sites Provided by Occupant of Unit. Where emergency transportable housing units are installed on private sites provided by the occupant of the unit, entities shall provide emergency transportable housing units with mobility features complying with 809.2 as determined by a needs assessment conducted by the entity providing the emergency transportable housing units.
233.3.1.2.2 Group Sites. Where group sites are developed for the installation of emergency transportable housing units, entities shall comply with 233.3.1.2.2.
233.3.1.2.2.1 Unit Pads. At least 10 percent, but no fewer than one, of the unit pads prepared for the installation of emergency transportable housing units at each group site shall be designed and constructed to accept the installation of emergency transportable housing units with mobility features complying with 809.2 and shall be on an accessible route as required by 206.
233.3.1.2.2.2 Units Installed. At least 5 percent, but no fewer than one, of the total number of the emergency transportable housing units installed at each group site shall provide mobility features complying with 809.2.
233.3.2 Residential Dwelling Units with Communication Features. Facilities, other than those containing emergency transportable housing units, shall comply with 233.3.2.1. Facilities containing emergency transportable housing units shall comply with 233.3.2.2.
233.3.2.1 Facilities Other Than Those Containing Emergency Transportable Housing Units. At least 2 percent, but no fewer than one, of the total number of residential dwelling units, other than emergency transportable housing units, in the facility shall provide communication features complying with 809.3.
EXCEPTION: Where facilities contain 15 or fewer residential dwelling units, the requirements of 233.3.2.1 shall apply to the total number of residential dwelling units that are constructed under a single contract, or are developed as a whole, whether or not located on a common site.
233.3.2.2 Facilities Containing Emergency Transportable Housing Units. Entities shall provide emergency transportable housing units with residential dwelling unit smoke alarms complying with 809.3.1 and, where weather alert systems are provided, with weather alert systems complying with 809.3.4 as determined by a needs assessment conducted by the entity providing the emergency transportable housing units.
233.3.3 Residential Dwelling Units for Sale. Residential dwelling units offered for sale shall provide accessible features to the extent required by regulations issued by Federal agencies under the Americans with Disabilities Act or Section 504 of the Rehabilitation Act of 1973, as amended.
233.3.4 Additions. Where an addition to an existing building results in an increase in the number of residential dwelling units, the requirements of 233.3.1.1 and 233.3.2.1 shall apply only to the residential dwelling units that are added until the total number of residential dwelling units complies with the minimum number required by 233.3.1.1 and 233.3.2.1. Residential dwelling units required to comply with 233.3.1.1 shall be on an accessible route as required by 206.
233.3.5 Alterations. Alterations shall comply with 233.3.5.
EXCEPTION: Where compliance with 809.2.1, 809.2.3, or 809.2.4 is technically infeasible, or where it is technically infeasible to provide an accessible route to a residential dwelling unit, the entity shall be permitted to alter or construct a comparable residential dwelling unit to comply with 809.2 provided that the minimum number of residential dwelling units required by 233.3.1.1 and 233.3.2.1, as applicable, is satisfied.
233.3.5.1 Alterations to Vacated Buildings. Where a building is vacated for the purposes of alteration, and the altered building contains more than 15 residential dwelling units, at least 5 percent of the residential dwelling units shall comply with 809.2 and shall be on an accessible route as required by 206. In addition, at least 2 percent of the residential dwelling units shall comply with 809.3.
233.3.5.2 Alterations to Individual Residential Dwelling Units. In individual residential dwelling units, where a bathroom or a kitchen is substantially altered, and at least one other room is altered, the requirements of 233.3.1 shall apply to the altered residential dwelling units until the total number of residential dwelling units complies with the minimum number required by 233.3.1.1 and 233.3.2.1. Residential dwelling units required to comply with 233.3.1.1 shall be on an accessible route as required by 206.
EXCEPTION: Where facilities contain 15 or fewer residential dwelling units, the requirements of 233.3.1.1 and 233.3.2.1 shall apply to the total number of residential dwelling units that are altered under a single contract, or are developed as a whole, whether or not located on a common site.
233.3.6 Dispersion. Residential dwelling units required to provide mobility features complying with 809.2 and residential dwelling units required to provide communication features complying with 809.3 shall be dispersed among the various types of residential dwelling units in the facility and shall provide choices of residential dwelling units comparable to, and integrated with, those available to other residents.
2. Emergency transportable housing units required to provide mobility features complying with 809.2 shall not be required to be dispersed among the various types of residential dwelling units in a facility or to provide choices of residential dwelling units comparable to those available to other residents.
234.1 General. Amusement rides shall comply with 234.
234.2 Load and Unload Areas. Load and unload areas serving amusement rides shall comply with 1002.3.
234.3 Minimum Number. Amusement rides shall provide at least one wheelchair space complying with 1002.4, or at least one amusement ride seat designed for transfer complying with 1002.5, or at least one transfer device complying with 1002.6.
2. Amusement rides designed primarily for children, where children are assisted on and off the ride by an adult, shall not be required to comply with 234.3.
3. Amusement rides that do not provide amusement ride seats shall not be required to comply with 234.3.
234.4 Existing Amusement Rides. Where existing amusement rides are altered, the alteration shall comply with 234.4.
234.4.1 Load and Unload Areas. Where load and unload areas serving existing amusement rides are newly designed and constructed, the load and unload areas shall comply with 1002.3.
234.4.2 Minimum Number. Where the structural or operational characteristics of an amusement ride are altered to the extent that the amusement ride’s performance differs from that specified by the manufacturer or the original design, the amusement ride shall comply with 234.3.
235.1 General. Recreational boating facilities shall comply with 235.
235.2 Boat Slips. Boat slips complying with 1003.3.1 shall be provided in accordance with Table 235.2. Where the number of boat slips is not identified, each 40 feet (12 m) of boat slip edge provided along the perimeter of the pier shall be counted as one boat slip for the purpose of this section.
Table 235.2—Boat Slips
| Total number of boat slips provided in facility | Minimum number of required accessible boat slips |
|---|---|
| 1 to 25 | 1. |
| 26 to 50 | 2. |
| 51 to 100 | 3. |
| 101 to 150 | 4. |
| 151 to 300 | 5. |
| 301 to 400 | 6. |
| 401 to 500 | 7. |
| 501 to 600 | 8. |
| 601 to 700 | 9. |
| 701 to 800 | 10. |
| 801 to 900 | 11. |
| 901 to 1000 | 12. |
| 1001 and over | 12, plus 1 for every 100, or fraction thereof, over 1000. |
235.2.1 Dispersion. Boat slips complying with 1003.3.1 shall be dispersed throughout the various types of boat slips provided. Where the minimum number of boat slips required to comply with 1003.3.1 has been met, no further dispersion shall be required.
235.3 Boarding Piers at Boat Launch Ramps. Where boarding piers are provided at boat launch ramps, at least 5 percent, but no fewer than one, of the boarding piers shall comply with 1003.3.2.
236.1 General. At least one of each type of exercise machine and equipment shall comply with 1004.
237.1 General. Fishing piers and platforms shall comply with 1005.
238.1 General. Golf facilities shall comply with 238.
238.2 Golf Courses. Golf courses shall comply with 238.2.
238.2.1 Teeing Grounds. Where one teeing ground is provided for a hole, the teeing ground shall be designed and constructed so that a golf car can enter and exit the teeing ground. Where two teeing grounds are provided for a hole, the forward teeing ground shall be designed and constructed so that a golf car can enter and exit the teeing ground. Where three or more teeing grounds are provided for a hole, at least two teeing grounds, including the forward teeing ground, shall be designed and constructed so that a golf car can enter and exit each teeing ground.
238.2.2 Putting Greens. Putting greens shall be designed and constructed so that a golf car can enter and exit the putting green.
238.2.3 Weather Shelters. Where provided, weather shelters shall be designed and constructed so that a golf car can enter and exit the weather shelter and shall comply with 1006.4.
238.3 Practice Putting Greens, Practice Teeing Grounds, and Teeing Stations at Driving Ranges. At least 5 percent, but no fewer than one, of practice putting greens, practice teeing grounds, and teeing stations at driving ranges shall be designed and constructed so that a golf car can enter and exit the practice putting greens, practice teeing grounds, and teeing stations at driving ranges.
239.1 General. Miniature golf facilities shall comply with 239.
239.2 Minimum Number. At least 50 percent of holes on miniature golf courses shall comply with 1007.3.
239.3 Miniature Golf Course Configuration. Miniature golf courses shall be configured so that the holes complying with 1007.3 are consecutive. Miniature golf courses shall provide an accessible route from the last hole complying with 1007.3 to the course entrance or exit without requiring travel through any other holes on the course.
240.1 General. Play areas for children ages 2 and over shall comply with 240. Where separate play areas are provided within a site for specific age groups, each play area shall comply with 240.
2. In existing play areas, where play components are relocated for the purposes of creating safe use zones and the ground surface is not altered or extended for more than one use zone, the play area shall not be required to comply with 240.
3. Amusement attractions shall not be required to comply with 240.
4. Where play components are altered and the ground surface is not altered, the ground surface shall not be required to comply with 1008.2.6 unless required by 202.4.
240.1.1 Additions. Where play areas are designed and constructed in phases, the requirements of 240 shall apply to each successive addition so that when the addition is completed, the entire play area complies with all the applicable requirements of 240.
240.2 Play Components. Where provided, play components shall comply with 240.2.
240.2.1 Ground Level Play Components. Ground level play components shall be provided in the number and types required by 240.2.1. Ground level play components that are provided to comply with 240.2.1.1 shall be permitted to satisfy the additional number required by 240.2.1.2 if the minimum required types of play components are satisfied. Where two or more required ground level play components are provided, they shall be dispersed throughout the play area and integrated with other play components.
240.2.1.1 Minimum Number and Types. Where ground level play components are provided, at least one of each type shall be on an accessible route and shall comply with 1008.4.
240.2.1.2 Additional Number and Types. Where elevated play components are provided, ground level play components shall be provided in accordance with Table 240.2.1.2 and shall comply with 1008.4.
Table 240.2.1.2—Number and Types of Ground Level Play Components Required To Be on Accessible Routes
| Number of elevated play components provided | Minimum number of ground level play components required to be on an accessible route | Minimum number of different types of ground level play components required to be on an accessible route |
|---|---|---|
| 1 | Not applicable | Not applicable. |
| 2 to 4 | 1 | 1. |
| 5 to 7 | 2 | 2. |
| 8 to 10 | 3 | 3. |
| 11 to 13 | 4 | 3. |
| 14 to 16 | 5 | 3. |
| 17 to 19 | 6 | 3. |
| 20 to 22 | 7 | 4. |
| 23 to 25 | 8 | 4. |
| 26 and over | 8, plus 1 for each additional 3, or fraction thereof, over 25 | 5. |
240.2.2 Elevated Play Components. Where elevated play components are provided, at least 50 percent shall be on an accessible route and shall comply with 1008.4.
241.1 General. Where provided, saunas and steam rooms shall comply with 612.
242.1 General. Swimming pools, wading pools, and spas shall comply with 242.
242.2 Swimming Pools. At least two accessible means of entry shall be provided for swimming pools. Accessible means of entry shall be swimming pool lifts complying with 1009.2; sloped entries complying with 1009.3; transfer walls complying with 1009.4; transfer systems complying with 1009.5; and pool stairs complying with 1009.6. At least one accessible means of entry provided shall comply with 1009.2 or 1009.3.
2. Wave action pools, leisure rivers, sand bottom pools, and other pools where user access is limited to one area shall not be required to provide more than one accessible means of entry provided that the accessible means of entry is a swimming pool lift complying with 1009.2, a sloped entry complying with 1009.3, or a transfer system complying with 1009.5.
3. Catch pools shall not be required to provide an accessible means of entry provided that the catch pool edge is on an accessible route.
242.3 Wading Pools. At least one accessible means of entry shall be provided for wading pools. Accessible means of entry shall comply with sloped entries complying with 1009.3.
242.4 Spas. At least one accessible means of entry shall be provided for spas. Accessible means of entry shall comply with swimming pool lifts complying with 1009.2; transfer walls complying with 1009.4; or transfer systems complying with 1009.5.
243.1 General. Where shooting facilities with firing positions are designed and constructed at a site, at least 5 percent, but no fewer than one, of each type of firing position shall comply with 1010.
Appendix C to Part 1191—Architectural Barriers Act: Scoping
F101.1 General. This document contains scoping and technical requirements for accessibility to sites, facilities, buildings, and elements by individuals with disabilities. The requirements are to be applied during the design, construction, addition to, alteration, and lease of sites, facilities, buildings, and elements to the extent required by regulations issued by Federal agencies under the Architectural Barriers Act of 1968 (ABA).
F102.1 General. The technical requirements are based on adult dimensions and anthropometrics. In addition, this document includes technical requirements based on children’s dimensions and anthropometrics for drinking fountains, water closets, toilet compartments, lavatories and sinks, dining surfaces, and work surfaces.
F103.1 General. The Architectural Barriers Act authorizes the Administrator of the General Services Administration, the Secretary of the Department of Housing and Urban Development, the Secretary of the Department of Defense, and the United States Postal Service to modify or waive the accessibility standards for buildings and facilities covered by the Architectural Barriers Act on a case-by-case basis, upon application made by the head of the department, agency, or instrumentality of the United States concerned. The General Services Administration, the Department of Housing and Urban Development, the Department of Defense, and the United States Postal Service may grant a modification or waiver only upon a determination that it is clearly necessary. Section 502(b)(1) of the Rehabilitation Act of 1973 authorizes the Access Board to ensure that modifications and waivers are based on findings of fact and are not inconsistent with the Architectural Barriers Act.
F104.1 Dimensions. Dimensions that are not stated as “maximum” or “minimum” are absolute.
F104.1.1 Construction and Manufacturing Tolerances. All dimensions are subject to conventional industry tolerances except where the requirement is stated as a range with specific minimum and maximum end points.
F104.2 Calculation of Percentages. Where the required number of elements or facilities to be provided is determined by calculations of ratios or percentages and remainders or fractions result, the next greater whole number of such elements or facilities shall be provided. Where the determination of the required size or dimension of an element or facility involves ratios or percentages, rounding down for values less than one half shall be permitted.
F105.1 General. The standards listed in F105.2 are incorporated by reference in this document and are part of the requirements to the prescribed extent of each such reference. The Director of the Federal Register has approved these standards for incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the referenced standards may be inspected at the Architectural and Transportation Barriers Compliance Board, 1331 F Street NW., Suite 1000, Washington, DC 20004; at the Department of Justice, Civil Rights Division, Disability Rights Section, 1425 New York Avenue NW., Washington, DC 20005; at the Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590; or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
F105.2 Referenced Standards. The specific edition of the standards listed below are referenced in this document. Where differences occur between this document and the referenced standards, this document applies.
F105.2.1 ANSI/BHMA. Copies of the referenced standards may be obtained from the Builders Hardware Manufacturers Association, 355 Lexington Avenue, 15th floor, New York, NY 10017 (http://www.buildershardware.com).
ANSI/BHMA A156.10-1999 American National Standard for Power Operated Pedestrian Doors (see 404.3).
ANSI/BHMA A156.19-1997 American National Standard for Power Assist and Low Energy Power Operated Doors (see 404.3, 408.3.2.1, and 409.3.1).
ANSI/BHMA A156.19-2002 American National Standard for Power Assist and Low Energy Power Operated Doors (see 404.3, 408.3.2.1, and 409.3.1).
F105.2.2 ASME. Copies of the referenced standards may be obtained from the American Society of Mechanical Engineers, Two Park Avenue, New York, New York 10016 (http://www.asme.org).
ASME A17.1-2000 Safety Code for Elevators and Escalators, including ASME A17.1a-2002 Addenda and ASME A17.1b-2003 Addenda (see 407.1, 408.1, 409.1, and 810.9).
ASME A18.1-1999 Safety Standard for Platform Lifts and Stairway Chairlifts, including ASME A18.1a 2001 Addenda and ASME A18.1b-2001 Addenda (see 410.1).
ASME A18.1-2003 Safety Standard for Platform Lifts and Stairway Chairlifts, (see 410.1).
F105.2.3 ASTM. Copies of the referenced standards may be obtained from the American Society for Testing and Materials, 100 Bar Harbor Drive, West Conshohocken, Pennsylvania 19428 (http://www.astm.org).
ASTM F1292-99 Standard Specification for Impact Attenuation of Surface Systems Under and Around Playground Equipment (see 1008.2.6.2).
ASTM F1292-04 Standard Specification for Impact Attenuation of Surfacing Materials Within the Use Zone of Playground Equipment (see 1008.2.6.2).
ASTM F1487-01 Standard Consumer Safety Performance Specification for Playground Equipment for Public Use (see F106.5).
ASTM F1951-99 Standard Specification for Determination of Accessibility of Surface Systems Under and Around Playground Equipment (see 1008.2.6.1).
F105.2.4 ICC/IBC. Copies of the referenced standard may be obtained from the International Code Council, 500 New Jersey Avenue NW., Washington, DC 20001 (www.iccsafe.org).
International Building Code, 2000 Edition (see F207.1, F207.2, F216.4.2, F216.4.3, and 1005.2.1).
International Building Code, 2001 Supplement (see F207.1 and F207.2).
International Building Code, 2003 Edition (see F207.1, F207.2, F216.4.2, F216.4.3, and 1005.2.1).
F105.2.5 NFPA. Copies of the referenced standards may be obtained from the National Fire Protection Association, 1 Batterymarch Park, Quincy, Massachusetts 02169-7471, (http://www.nfpa.org).
NFPA 72 National Fire Alarm Code, 1999 Edition (see 702.1, 809.3.1.1, and 809.3.1.2).
NFPA 72 National Fire Alarm Code, 2002 Edition (see 702.1, 809.3.1.1, and 809.3.1.2).
F106.1 General. For the purpose of this document, the terms defined in F106.5 have the indicated meaning.
F106.2 Terms Defined in Referenced Standard. Terms not defined in F106.5 or in regulations issued by the Administrator of the General Services Administration, the Secretary of Defense, the Secretary of Housing and Urban Development, or the United States Postal Service to implement the Architectural Barriers Act but specifically defined in a referenced standard, shall have the specified meaning from the referenced standard unless otherwise stated.
F106.3 Undefined Terms. The meaning of terms not specifically defined in F106.5 or in regulations issued by the Administrator of the General Services Administration, the Secretary of Defense, the Secretary of Housing and Urban Development, or the United States Postal Service to implement the Architectural Barriers Act or in referenced standards shall be as defined by collegiate dictionaries in the sense that the context implies.
F106.4 Interchangeability. Words, terms and phrases used in the singular include the plural and those used in the plural include the singular.
F106.5 Defined Terms.
Accessible. A site, building, facility, or portion thereof that complies with this part.
Accessible Means of Egress. A continuous and unobstructed way of egress travel from any point in a building or facility that provides an accessible route to an area of refuge, a horizontal exit, or a public way.
Addition. An expansion, extension, or increase in the gross floor area or height of a building or facility.
Administrative Authority. A governmental agency that adopts or enforces regulations and guidelines for the design, construction, or alteration of buildings and facilities.
Alteration. A change to a building or facility that affects or could affect the usability of the building or facility or portion thereof. Alterations include, but are not limited to, remodeling, renovation, rehabilitation, reconstruction, historic restoration, resurfacing of circulation paths or vehicular ways, changes or rearrangement of the structural parts or elements, and changes or rearrangement in the plan configuration of walls and full-height partitions. Normal maintenance, reroofing, painting or wallpapering, or changes to mechanical and electrical systems are not alterations unless they affect the usability of the building or facility.
Amusement Attraction. Any facility, or portion of a facility, located within an amusement park or theme park which provides amusement without the use of an amusement device. Amusement attractions include, but are not limited to, fun houses, barrels, and other attractions without seats.
Amusement Ride. A system that moves persons through a fixed course within a defined area for the purpose of amusement.
Amusement Ride Seat. A seat that is built-in or mechanically fastened to an amusement ride intended to be occupied by one or more passengers.
Area of Sport Activity. That portion of a room or space where the play or practice of a sport occurs.
Assembly Area. A building or facility, or portion thereof, used for the purpose of entertainment, worship, educational or civic gatherings, or similar purposes. For the purposes of these requirements, assembly areas include, but are not limited to, classrooms, lecture halls, courtrooms, public meeting rooms, public hearing rooms, legislative chambers, motion picture houses, auditoria, theaters, playhouses, dinner theaters, concert halls, centers for the performing arts, amphitheaters, arenas, stadiums, grandstands, or convention centers.
Assistive Listening System (ALS). An amplification system utilizing transmitters, receivers, and coupling devices to bypass the acoustical space between a sound source and a listener by means of induction loop, radio frequency, infrared, or direct-wired equipment.
Boarding Pier. A portion of a pier where a boat is temporarily secured for the purpose of embarking or disembarking.
Boards. Boards include, but are not limited to, wood, plastic, metal, and composite products.
Boat Launch Ramp. A sloped surface designed for launching and retrieving trailered boats and other water craft to and from a body of water.
Boat Slip. That portion of a pier, main pier, finger pier, or float where a boat is moored for the purpose of berthing, embarking, or disembarking.
Building. Any structure used or intended for supporting or sheltering any use or occupancy.
Camp Shelter. A partially enclosed structure that provides campers and hikers cover from weather and that does not contain plumbing fixtures or kitchen appliances. Camp shelters are not transient lodging facilities or residential dwelling units.
Camping Facility. A site, or portion of a site, developed for outdoor recreational purposes that contains camping units.
Camping Unit. An outdoor space in a camping facility used for camping that contains outdoor constructed features, parking spaces for recreational vehicles or other vehicles, tent pads or tent platforms, or camp shelters.
Catch Pool. A pool or designated section of a pool used as a terminus for water slide flumes.
Characters. Letters, numbers, punctuation marks and typographic symbols.
Children’s Use. Describes spaces and elements specifically designed for use primarily by people 12 years old and younger.
Circulation Path. An exterior or interior way of passage provided for pedestrian travel, including but not limited to, walks, hallways, courtyards, elevators, platform lifts, ramps, stairways, and landings.
Closed-Circuit Telephone. A telephone with a dedicated line such as a house phone, courtesy phone or phone that must be used to gain entry to a facility.
Common Use. Interior or exterior circulation paths, rooms, spaces, or elements that are not for public use and are made available for the shared use of two or more people.
Cross Slope. The slope that is perpendicular to the direction of travel (see running slope).
Curb Ramp. A short ramp cutting through a curb or built up to it.
Detectable Warning. A standardized surface feature built in or applied to walking surfaces or other elements to warn of hazards on a circulation path.
Element. An architectural or mechanical component of a building, facility, space, or site.
Elevated Play Component. A play component that is approached above or below grade and that is part of a composite play structure consisting of two or more play components attached or functionally linked to create an integrated unit providing more than one play activity.
Emergency Transportable Housing Unit. A single or multiple section prefabricated structure that is transportable by a single transport vehicle and that can be set-up and installed on a temporary site in response to an emergency need for temporary housing. Such structures include, but are not limited to, travel trailers, park models, manufactured housing, and other factory-built housing. For the purposes of this document, emergency transportable housing units are considered a type of residential dwelling unit.
Employee Work Area. All or any portion of a space used only by employees and used only for work. Corridors, toilet rooms, kitchenettes and break rooms are not employee work areas.
Entrance. Any access point to a building or portion of a building or facility used for the purpose of entering. An entrance includes the approach walk, the vertical access leading to the entrance platform, the entrance platform itself, vestibule if provided, the entry door or gate, and the hardware of the entry door or gate.
Facility. All or any portion of buildings, structures, site improvements, elements, and pedestrian routes or vehicular ways located on a site.
Gangway. A variable-sloped pedestrian walkway that links a fixed structure or land with a floating structure. Gangways that connect to vessels are not addressed by this document.
Golf Car Passage. A continuous passage on which a motorized golf car can operate.
Ground Level Play Component. A play component that is approached and exited at the ground level.
Joint Use. Interior or exterior rooms, spaces, or elements that are common space available for use by all occupants of the building. Joint use does not include mechanical or custodial rooms, or areas occupied by other tenants.
Lease. Any agreement which establishes the relationship of landlord and tenant.
Mail Boxes. Receptacles for the receipt of documents, packages, or other deliverable matter. Mail boxes include, but are not limited to, post office boxes and receptacles provided by commercial mail-receiving agencies, apartment facilities, or schools.
Marked Crossing. A crosswalk or other identified path intended for pedestrian use in crossing a vehicular way.
Mezzanine. An intermediate level or levels between the floor and ceiling of any story with an aggregate floor area of not more than one-third of the area of the room or space in which the level or levels are located. Mezzanines have sufficient elevation that space for human occupancy can be provided on the floor below.
Military Installation. A base, camp, post, station, yard, center, homeport facility for any ship, or other activity or operation under the jurisdiction of the Department of Defense, including any leased facility. Military installation does not include any facility used primarily for civil works, rivers and harbors projects, or flood control projects. Multiple, contiguous, or collocated bases, camps, posts, stations, yards, centers, or home ports shall not be considered as constituting a single military installation.
Occupant Load. The number of persons for which the means of egress of a building or portion of a building is designed.
Operable Part. A component of an element used to insert or withdraw objects, or to activate, deactivate, or adjust the element.
Outdoor Constructed Features. Picnic tables, fire rings, grills, fireplaces, wood stoves, trash and recycling receptacles, water hydrants, utility and sewage hookups, outdoor rinsing showers, benches, and viewing scopes provided at outdoor recreation facilities.
Picnic Facility. A site, or portion of a site, developed for outdoor recreational purposes that contains picnic units.
Picnic Unit. An outdoor space in a picnic facility used for picnicking that contains outdoor constructed features.
Pictogram. A pictorial symbol that represents activities, facilities, or concepts.
Play Area. A portion of a site containing play components designed and constructed for children.
Play Component. An element intended to generate specific opportunities for play, socialization, or learning. Play components are manufactured or natural; and are stand-alone or part of a composite play structure.
Public Entrance. An entrance that is not a service entrance or a restricted entrance.
Public Use. Interior or exterior rooms, spaces, or elements that are made available to the public. Public use may be provided at a building or facility that is privately or publicly owned.
Public Way. Any street, alley or other parcel of land open to the outside air leading to a public street, which has been deeded, dedicated or otherwise permanently appropriated to the public for public use, and which has a clear width and height of not less than 10 feet (3050 mm).
Qualified Historic Building or Facility. A building or facility that is listed in or eligible for listing in the National Register of Historic Places, or designated as historic under an appropriate State or local law.
Ramp. A walking surface that has a running slope steeper than 1:20.
Residential Dwelling Unit. A unit intended to be used as a residence, that is primarily long-term in nature. Residential dwelling units do not include transient lodging, inpatient medical care, licensed long-term care, and detention or correctional facilities.
Restricted Entrance. An entrance that is made available for common use on a controlled basis but not public use and that is not a service entrance.
Running Slope. The slope that is parallel to the direction of travel (see cross slope).
Self-Service Storage. Building or facility designed and used for the purpose of renting or leasing individual storage spaces to customers for the purpose of storing and removing personal property on a self-service basis.
Service Entrance. An entrance intended primarily for delivery of goods or services.
Site. A parcel of land bounded by a property line or a designated portion of a public right-of-way.
Soft Contained Play Structure. A play structure made up of one or more play components where the user enters a fully enclosed play environment that utilizes pliable materials, such as plastic, netting, or fabric.
Space. A definable area, such as a room, toilet room, hall, assembly area, entrance, storage room, alcove, courtyard, or lobby.
Story. That portion of a building or facility designed for human occupancy included between the upper surface of a floor and upper surface of the floor or roof next above. A story containing one or more mezzanines has more than one floor level.
Structural Frame. The columns and the girders, beams, and trusses having direct connections to the columns and all other members that are essential to the stability of the building or facility as a whole.
Tactile. An object that can be perceived using the sense of touch.
Technically Infeasible. With respect to an alteration of a building or a facility, something that has little likelihood of being accomplished because existing structural conditions would require removing or altering a loadbearing member that is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features that are in full and strict compliance with the minimum requirements.
Teeing Ground. In golf, the starting place for the hole to be played.
Trail. A pedestrian route developed primarily for outdoor recreational purposes. A pedestrian route developed primarily to connect elements, spaces, or facilities within a site is not a trail.
Trailhead. An outdoor space that is designated by an entity responsible for administering or maintaining a trail to serve as an access point to the trail. The junction of two or more trails or the undeveloped junction of a trail and a road is not a trailhead.
Transfer Device. Equipment designed to facilitate the transfer of a person from a wheelchair or other mobility aid to and from an amusement ride seat.
Transient Lodging. A building or facility containing one or more guest room(s) for sleeping that provides accommodations that are primarily short-term in nature. Transient lodging does not include residential dwelling units intended to be used as a residence, inpatient medical care facilities, licensed long-term care facilities, detention or correctional facilities, or private buildings or facilities that contain not more than five rooms for rent or hire and that are actually occupied by the proprietor as the residence of such proprietor.
Transition Plate. A sloping pedestrian walking surface located at the end(s) of a gangway.
TTY. An abbreviation for teletypewriter. Machinery that employs interactive text-based communication through the transmission of coded signals across the telephone network. TTYs may include, for example, devices known as TDDs (telecommunication display devices or telecommunication devices for deaf persons) or computers with special modems. TTYs are also called text telephones.
Use Zone. The ground level area beneath and immediately adjacent to a play structure or play equipment that is designated by ASTM F 1487 (incorporated by reference, see “Referenced Standards” in Chapter 1) for unrestricted circulation around the play equipment and where it is predicted that a user would land when falling from or exiting the play equipment.
Vehicular Way. A route provided for vehicular traffic, such as in a street, driveway, or parking facility.
Viewing Area. An outdoor space developed for viewing landscapes, wildlife, or other points of interest.
Walk. An exterior prepared surface for pedestrian use, including pedestrian areas such as plazas and courts.
Wheelchair Space. Space for a single wheelchair and its occupant.
Work Area Equipment. Any machine, instrument, engine, motor, pump, conveyor, or other apparatus used to perform work. As used in this document, this term shall apply only to equipment that is permanently installed or built-in in employee work areas subject to the Americans with Disabilities Act of 1990 (ADA). Work area equipment does not include passenger elevators and other accessible means of vertical transportation.
F201.1 Scope. All areas of newly designed and newly constructed buildings and facilities and altered or leased portions of existing buildings and facilities shall comply with these requirements.
F201.2 Application Based on Building or Facility Use. Where a site, building, facility, room, or space contains more than one use, each portion shall comply with the applicable requirements for that use.
F201.3 Temporary and Permanent Structures. These requirements shall apply to temporary and permanent buildings and facilities.
F201.4 Requirements Apply to Facilities Constructed or Altered by or on Behalf of Federal Agencies. The requirements in F216.13, F244 through F248, and 1011 through 1019 shall apply only to facilities constructed or altered by federal agencies or by non-federal entities on federal land on behalf of federal agencies pursuant to a concession contract, partnership agreement, or similar arrangement.
F201.4.1 Documentation and Notification When Exceptions Used for Trails and Beach Access Routes. Federal agencies shall document the basis for not fully complying with a specific provision in 1017 or 1018 on a portion of a trail or beach access route based on Exception 1 in 1017 or Exception 1 in 1018, and shall maintain the documentation with the records for the trail or beach project. Federal agencies shall notify the Access Board if an entire trail is exempted from complying with 1017 based on Exception 2 in 1017.1, and if a beach access route is not provided based on Exception 2 in 1018.1.
F202.1 General. Additions and alterations to existing buildings or facilities, including leased buildings or facilities, shall comply with F202.
F202.2 Additions. Each addition to an existing building or facility shall comply with the requirements for new construction.
F202.2.1 Accessible Route. At least one accessible route shall be provided within the site from accessible parking spaces and accessible passenger loading zones; public streets and sidewalks; and public transportation stops to an accessible entrance serving the addition. If the only accessible entrances serving the addition are provided in the existing building or facility, the accessible route shall connect at least one existing entrance to all accessible spaces and elements within the addition. In addition, elements and spaces specified in F202.2.2 through F202.2.5 shall be on an accessible route.
F202.2.2 Entrance. Where an entrance is not provided in an addition, at least one entrance in the existing building or facility shall comply with F206.4 and shall serve the addition.
F202.2.3 Toilet and Bathing Facilities. Where toilet facilities and bathing facilities are not provided in an addition but are provided in the existing building or facility to serve the addition, the toilet facilities and bathing facilities shall comply with F202.2.3.
F202.2.3.1 Existing Toilet Facility. Where existing toilet facilities are provided in the existing building or facility, at least one toilet facility for men and at least one toilet facility for women shall comply with F213.2 and F213.3 and shall serve the addition.
F202.2.3.2 Existing Bathing Facility. Where existing bathing facilities are provided in the existing building or facility, at least one bathing facility for men and at least one bathing facility for women shall comply with F213.2 and F213.3 and shall serve the addition.
F202.2.4 Public Telephone. Where a public telephone is not provided in an addition but is provided in the existing building or facility to serve the addition, at least one public telephone in the existing building or facility shall comply with F217.
F202.2.5 Drinking Fountain. Where a drinking fountain is not provided in an addition but is provided in the existing building or facility to serve the addition, at least one drinking fountain in the existing building or facility shall comply with 602.1 through 602.6.
F202.3 Alterations. Where existing elements or spaces are altered, each altered element or space shall comply with the applicable requirements of Chapter 2.
2. In alterations, where compliance with applicable requirements is technically infeasible, the alteration shall comply with the requirements to the maximum extent feasible.
3. Residential dwelling units not required to be accessible in compliance with a standard issued pursuant to the Architectural Barriers Act or Section 504 of the Rehabilitation Act of 1973, as amended, shall not be required to comply with F202.3.
4. Where elements or spaces are altered in camping facilities, picnic facilities, viewing areas, or trailheads and the circulation path to the altered element or space is not altered, the circulation path shall not be required to comply with 1016.
F202.3.1 Prohibited Reduction in Access. An alteration that decreases or has the effect of decreasing the accessibility of a building or facility below the requirements for new construction at the time of the alteration is prohibited.
F202.3.2 Extent of Application. An alteration of an existing element, space, or area of a building or facility shall not impose a requirement for accessibility greater than required for new construction.
F202.4 Alterations Affecting Primary Function Areas. In addition to the requirements of F202.3, an alteration that affects or could affect the usability of or access to an area containing a primary function shall be made so as to ensure that, to the maximum extent feasible, the path of travel to the altered area, including the rest rooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities, unless such alterations are disproportionate to the overall alterations in terms of cost and scope as determined under criteria established by the Administrator of the General Services Administration, the Secretary of Defense, the Secretary of Housing and Urban Development, or the United States Postal Service.
2. Camping facilities, picnic facilities, viewing areas, trailheads, trails, and beach access routes shall not be required to comply with F202.4.
F202.5 Alterations to Qualified Historic Buildings and Facilities. Alterations to a qualified historic building or facility shall comply with F202.3 and F202.4.
F202.6 Leases. Buildings or facilities for which new leases are negotiated by the Federal government after the effective date of the revised standards issued pursuant to the Architectural Barriers Act, including new leases for buildings or facilities previously occupied by the Federal government, shall comply with F202.6.
2. Buildings or facilities leased for 12 months or less shall not be required to comply with F202.6 provided that the lease may not be extended or renewed.
F202.6.1 Joint Use Areas. Joint use areas serving the leased space shall comply with F202.6.
F202.6.2 Accessible Route. Primary function areas, as defined by Administrator of the General Services Administration, the Secretary of Defense, the Secretary of Housing and Urban Development, and the United States Postal Service, shall be served by at least one accessible route complying with F206. Elements and spaces required to be accessible by F202.6 shall be on an accessible route complying with F206.
F202.6.3 Toilet and Bathing Facilities. Where provided, toilet facilities and bathing facilities shall comply with F202.6.3.
F202.6.3.1 Multiple Facilities. At least one toilet facility or bathing facility for each sex on each floor that has toilet facilities or bathing facilities shall comply with F213.2 and F213.3.
F202.6.3.2 Single Facilities. Where only one toilet or bathing facility is provided in a building or facility for each sex, either one unisex toilet or bathing facility, or one toilet or bathing facility for each sex, shall comply with F213.2 and F213.3.
F202.6.4 Parking. Parking shall comply with F208.
F202.6.5 Other Elements and Spaces. Where provided, the following elements and spaces shall comply with F202.6.5.
F202.6.5.1 Drinking Fountains. Drinking fountains shall comply with F211.
F202.6.5.2 Fire Alarms. Fire alarms shall comply with F215.
F202.6.5.3 Public Telephones. Public telephones shall comply with F217.
F202.6.5.4 Dining Surfaces and Work Surfaces. Dining surfaces and work surfaces shall comply with F226.
F202.6.5.5 Assembly Areas. Assistive listening systems shall comply with F219 and assembly seating shall comply with F221.
F202.6.5.6 Sales and Service Counters. Sales and service counters shall comply with F227.
F202.6.5.7 Depositories, Vending Machines, Change Machines, and Mail Boxes. Depositories, vending machines, change machines, and mail boxes shall comply with F228.
F202.6.5.8 Residential Dwelling Units. Residential dwelling units, other than emergency transportable housing units, shall comply with F233.
F202.6.5.9 Emergency Transportable Housing Units with Mobility Features. Where emergency transportable housing units are installed on existing commercial sites, entities shall provide emergency transportable housing units with mobility features complying with 809.2 as determined by a needs assessment conducted by the entity providing the emergency transportable housing units.
F202.6.5.10 Emergency Transportable Housing Units with Communication Features. Where emergency transportable housing units are installed on existing commercial sites, entities shall provide emergency transportable housing units with residential dwelling unit smoke alarms complying with 809.3.1 and, where weather alert systems are provided, with weather alert systems complying with 809.3.4 as determined by a needs assessment conducted by the entity providing the emergency transportable housing units.
F203.1 General. Sites, buildings, facilities, and elements are exempt from these requirements to the extent specified by F203.
F203.2 Existing Elements. Elements in compliance with an earlier standard issued pursuant to the Architectural Barriers Act or Section 504 of the Rehabilitation Act of 1973, as amended shall not be required to comply with these requirements unless altered.
F203.3 Construction Sites. Structures and sites directly associated with the actual processes of construction, including but not limited to, scaffolding, bridging, materials hoists, materials storage, and construction trailers shall not be required to comply with these requirements or to be on an accessible route. Portable toilet units provided for use exclusively by construction personnel on a construction site shall not be required to comply with F213 or to be on an accessible route.
F203.4 Raised Areas. Areas raised primarily for purposes of security, life safety, or fire safety, including but not limited to, observation or lookout galleries, prison guard towers, fire towers, or life guard stands shall not be required to comply with these requirements or to be on an accessible route.
F203.5 Limited Access Spaces. Spaces accessed only by ladders, catwalks, crawl spaces, or very narrow passageways shall not be required to comply with these requirements or to be on an accessible route.
F203.6 Machinery Spaces. Spaces frequented only by service personnel for maintenance, repair, or occasional monitoring of equipment shall not be required to comply with these requirements or to be on an accessible route. Machinery spaces include, but are not limited to, elevator pits or elevator penthouses; mechanical, electrical or communications equipment rooms; piping or equipment catwalks; water or sewage treatment pump rooms and stations; electric substations and transformer vaults; and highway and tunnel utility facilities.
F203.7 Single Occupant Structures. Single occupant structures accessed only by passageways below grade or elevated above standard curb height, including but not limited to, toll booths that are accessed only by underground tunnels, shall not be required to comply with these requirements or to be on an accessible route.
F203.8 Detention and Correctional Facilities. In detention and correctional facilities, common use areas that are used only by inmates or detainees and security personnel and that do not serve holding cells or housing cells required to comply with F232, shall not be required to comply with these requirements or to be on an accessible route.
F203.9 Residential Facilities. In facilities with residential dwelling units, common use areas that do not serve residential dwelling units required to provide mobility features complying with 809.2 or emergency transportable housing unit pads designed and constructed to accept the installation of units with mobility features complying with 809.2 shall not be required to comply with these requirements or to be on an accessible route.
F203.10 Raised Refereeing, Judging, and Scoring Areas. Raised structures used solely for refereeing, judging, or scoring a sport shall not be required to comply with these requirements or to be on an accessible route.
F203.11 Water Slides. Water slides shall not be required to comply with these requirements or to be on an accessible route.
F203.12 Animal Containment Areas. Animal containment areas that are not for public use shall not be required to comply with these requirements or to be on an accessible route.
F203.13 Raised Boxing or Wrestling Rings. Raised boxing or wrestling rings shall not be required to comply with these requirements or to be on an accessible route.
F203.14 Raised Diving Boards and Diving Platforms. Raised diving boards and diving platforms shall not be required to comply with these requirements or to be on an accessible route.
F204.1 General. Protruding objects on circulation paths shall comply with 307.
2. Within play areas, protruding objects on circulation paths shall not be required to comply with 307 provided that ground level accessible routes provide vertical clearance in compliance with 1008.2.
F205.1 General. Operable parts on accessible elements, accessible routes, and in accessible rooms and spaces shall comply with 309.
2. Electrical or communication receptacles serving a dedicated use shall not be required to comply with 309.
3. Except within emergency transportable housing units required to provide mobility features complying with 809.2, where two or more outlets are provided in a kitchen above a length of counter top that is uninterrupted by a sink or appliance, one outlet shall not be required to comply with 309.
4. Floor electrical receptacles shall not be required to comply with 309.
5. HVAC diffusers shall not be required to comply with 309.
6. Except for light switches, where redundant controls are provided for a single element, one control in each space shall not be required to comply with 309.
7. Cleats and other boat securement devices shall not be required to comply with 309.3.
8. Exercise machines and exercise equipment shall not be required to comply with 309.
9. Operable parts located within residential dwelling units not required to provide mobility features complying with 809.2 and transient lodging guest rooms not required to provide mobility features complying with 806.2 shall not be required to comply with 309.
10. In emergency transportable housing units required to provide mobility features complying with 809.2, operable parts located beneath the unit body shall not be required to comply with 309.
11. Water shut-off valves shall not be required to comply with 309.
F206.1 General. Accessible routes shall be provided in accordance with F206 and shall comply with Chapter 4 except that the exemptions at 403.5, 405.5, and 405.8 shall not apply.
2. Accessible routes shall not be required where camping facilities, picnic facilities, viewing areas, or outdoor constructed features are provided on trails.
3. Accessible routes shall not be required where beach access routes are provided in accordance with F248.
F206.2 Where Required. Accessible routes shall be provided where required by F206.2.
F206.2.1 Site Arrival Points. At least one accessible route shall be provided within the site from accessible parking spaces and accessible passenger loading zones; public streets and sidewalks; and public transportation stops to the accessible building or facility entrance they serve.
2. An accessible route shall not be required between site arrival points and the building or facility entrance if the only means of access between them is a vehicular way not providing pedestrian access.
F206.2.2 Within a Site. At least one accessible route shall connect accessible buildings, accessible facilities, accessible elements, and accessible spaces that are on the same site.
F206.2.3 Multi-Story Buildings and Facilities. At least one accessible route shall connect each story and mezzanine in multi-story buildings and facilities.
2. In detention and correctional facilities, an accessible route shall not be required to connect stories where cells with mobility features required to comply with 807.2, all common use areas serving cells with mobility features required to comply with 807.2, and all public use areas are on an accessible route.
3. In facilities with residential dwelling units, an accessible route shall not be required to connect stories where residential dwelling units with mobility features required to comply with 809.2, all common use areas serving residential dwelling units with mobility features required to comply with 809.2, and public use areas serving residential dwelling units are on an accessible route.
4. Within multi-story transient lodging guest rooms with mobility features required to comply with 806.2, an accessible route shall not be required to connect stories provided that spaces complying with 806.2 are on an accessible route and sleeping accommodations for two persons minimum are provided on a story served by an accessible route.
5. In air traffic control towers, an accessible route shall not be required to serve the cab and the floor immediately below the cab.
6. Where exceptions for alterations to qualified historic buildings or facilities are permitted by F202.5, an accessible route shall not be required to stories located above or below the accessible story.
F206.2.3.1 Stairs and Escalators in Existing Buildings. In alterations and additions, where an escalator or stair is provided where none existed previously and major structural modifications are necessary for the installation, an accessible route shall be provided between the levels served by the escalator or stair unless exempted by F206.2.3 Exceptions 1 through 6.
F206.2.4 Spaces and Elements. At least one accessible route shall connect accessible building or facility entrances with all accessible spaces and elements within the building or facility which are otherwise connected by a circulation path unless exempted by F206.2.3 Exceptions 1 through 6.
2. In assembly areas with fixed seating required to comply with F221, an accessible route shall not be required to serve fixed seating where wheelchair spaces required to be on an accessible route are not provided.
3. Accessible routes shall not be required to connect mezzanines where buildings or facilities have no more than one story. In addition, accessible routes shall not be required to connect stories or mezzanines where multi-story buildings or facilities are exempted by F206.2.3 Exceptions 1 through 6.
F206.2.5 Restaurants and Cafeterias. In restaurants and cafeterias, an accessible route shall be provided to all dining areas, including raised or sunken dining areas, and outdoor dining areas.
2. In sports facilities, tiered dining areas providing seating required to comply with F221 shall be required to have accessible routes serving at least 25 percent of the dining area provided that accessible routes serve seating complying with F221 and each tier is provided with the same services.
F206.2.6 Performance Areas. Where a circulation path directly connects a performance area to an assembly seating area, an accessible route shall directly connect the assembly seating area with the performance area. An accessible route shall be provided from performance areas to ancillary areas or facilities used by performers unless exempted by F206.2.3 Exceptions 1 through 6.
F206.2.7 Press Boxes. Press boxes in assembly areas shall be on an accessible route.
2. An accessible route shall not be required to free-standing press boxes that are elevated above grade 12 feet (3660 mm) minimum provided that the aggregate area of all press boxes is 500 square feet (46 m2) maximum.
F206.2.8 Amusement Rides. Amusement rides required to comply with F234 shall provide accessible routes in accordance with F206.2.8. Accessible routes serving amusement rides shall comply with Chapter 4 except as modified by 1002.2.
F206.2.8.1 Load and Unload Areas. Load and unload areas shall be on an accessible route. Where load and unload areas have more than one loading or unloading position, at least one loading and unloading position shall be on an accessible route.
F206.2.8.2 Wheelchair Spaces, Ride Seats Designed for Transfer, and Transfer Devices. When amusement rides are in the load and unload position, wheelchair spaces complying with 1002.4, amusement ride seats designed for transfer complying with 1002.5, and transfer devices complying with 1002.6 shall be on an accessible route.
F206.2.9 Recreational Boating Facilities. Boat slips required to comply with F235.2 and boarding piers at boat launch ramps required to comply with F235.3 shall be on an accessible route. Accessible routes serving recreational boating facilities shall comply with Chapter 4 except as modified by 1003.2.
F206.2.10 Bowling Lanes. Where bowling lanes are provided, at least 5 percent, but no fewer than one of each type of bowling lane, shall be on an accessible route.
F206.2.11 Court Sports. In court sports, at least one accessible route shall directly connect both sides of the court.
F206.2.12 Exercise Machines and Equipment. Exercise machines and equipment required to comply with F236 shall be on an accessible route.
F206.2.13 Fishing Piers and Platforms. Fishing piers and platforms shall be on an accessible route. Accessible routes serving fishing piers and platforms shall comply with Chapter 4 except as modified by 1005.1.
F206.2.14 Golf Facilities. At least one accessible route shall connect accessible elements and spaces within the boundary of the golf course. In addition, accessible routes serving golf car rental areas; bag drop areas; course weather shelters complying with F238.2.3; course toilet rooms; and practice putting greens, practice teeing grounds, and teeing stations at driving ranges complying with F238.3 shall comply with Chapter 4 except as modified by 1006.2.
F206.2.15 Miniature Golf Facilities. Holes required to comply with F239.2, including the start of play, shall be on an accessible route. Accessible routes serving miniature golf facilities shall comply with Chapter 4 except as modified by 1007.2.
F206.2.16 Play Areas. Play areas shall provide accessible routes in accordance with F206.2.16. Accessible routes serving play areas shall comply with Chapter 4 except as modified by 1008.2.
F206.2.16.1 Ground Level and Elevated Play Components. At least one accessible route shall be provided within the play area. The accessible route shall connect ground level play components required to comply with F240.2.1 and elevated play components required to comply with F240.2.2, including entry and exit points of the play components.
F206.2.16.2 Soft Contained Play Structures. Where three or fewer entry points are provided for soft contained play structures, at least one entry point shall be on an accessible route. Where four or more entry points are provided for soft contained play structures, at least two entry points shall be on an accessible route.
F206.3 Location. Accessible routes shall coincide with or be located in the same area as general circulation paths. Where circulation paths are interior, required accessible routes shall also be interior.
F206.4 Entrances. Entrances shall be provided in accordance with F206.4. Entrance doors, doorways, and gates shall comply with 404 and shall be on an accessible route complying with 402.
2. Where exceptions for alterations to qualified historic buildings or facilities are permitted by F202.5, no more than one public entrance shall be required to comply with F206.4. Where no public entrance can comply with F206.4 under criteria established in F202.5 Exception, then either an unlocked entrance not used by the public shall comply with F206.4; or a locked entrance complying with F206.4 with a notification system or remote monitoring shall be provided.
F206.4.1 Public Entrances. In addition to entrances required by F206.4.2 through F206.4.9, at least 60 percent of all public entrances shall comply with 404.
F206.4.2 Parking Structure Entrances. Where direct access is provided for pedestrians from a parking structure to a building or facility entrance, each direct access to the building or facility entrance shall comply with 404.
F206.4.3 Entrances from Tunnels or Elevated Walkways. Where direct access is provided for pedestrians from a pedestrian tunnel or elevated walkway to a building or facility, at least one direct entrance to the building or facility from each tunnel or walkway shall comply with 404.
F206.4.4 Transportation Facilities. In addition to the requirements of F206.4.2, F206.4.3, and F206.4.5 through F206.4.9, transportation facilities shall provide entrances in accordance with F206.4.4.
F206.4.4.1 Location. In transportation facilities, where different entrances serve different transportation fixed routes or groups of fixed routes, at least one public entrance serving each fixed route or group of fixed routes shall comply with 404.
F206.4.4.2 Direct Connections. Direct connections to other facilities shall provide an accessible route complying with 404 from the point of connection to boarding platforms and all transportation system elements required to be accessible. Any elements provided to facilitate future direct connections shall be on an accessible route connecting boarding platforms and all transportation system elements required to be accessible.
F206.4.5 Tenant Spaces. At least one accessible entrance to each tenancy in a facility shall comply with 404.
F206.4.6. Residential Dwelling Unit Primary Entrance. In residential dwelling units required to provide mobility features complying with 809.2, at least one primary entrance shall comply with 404. The primary entrance to a residential dwelling unit shall not be to a bedroom.
F206.4.7 Restricted Entrances. Where restricted entrances are provided to a building or facility, at least one restricted entrance to the building or facility shall comply with 404.
F206.4.8 Service Entrances. If a service entrance is the only entrance to a building or to a tenancy in a facility, that entrance shall comply with 404.
F206.4.9 Entrances for Inmates or Detainees. Where entrances used only by inmates or detainees and security personnel are provided at judicial facilities, detention facilities, or correctional facilities, at least one such entrance shall comply with 404.
F206.5 Doors, Doorways, and Gates. Doors, doorways, and gates providing user passage shall be provided in accordance with F206.5.
F206.5.1 Entrances. Each entrance to a building or facility required to comply with F206.4 shall have at least one door, doorway, or gate complying with 404.
F206.5.2 Rooms and Spaces. Within a building or facility, at least one door, doorway, or gate serving each room or space complying with these requirements shall comply with 404.
F206.5.3 Transient Lodging Facilities. In transient lodging facilities, entrances, doors, and doorways providing user passage into and within guest rooms that are not required to provide mobility features complying with 806.2 shall comply with 404.2.3.
F206.5.4 Residential Dwelling Units. In residential dwelling units required to provide mobility features complying with 809.2, all doors and doorways providing user passage shall comply with 404.
F206.6 Elevators. Elevators provided for passengers shall comply with 407. Where multiple elevators are provided, each elevator shall comply with 407.
2. Elevators complying with 408 or 409 shall be permitted in multi-story residential dwelling units.
F206.6.1 Existing Elevators. Where elements of existing elevators are altered, the same element shall also be altered in all elevators that are programmed to respond to the same hall call control as the altered elevator and shall comply with the requirements of 407 for the altered element.
F206.7 Platform Lifts. Platform lifts shall comply with 410. Platform lifts shall be permitted as a component of an accessible route in new construction in accordance with F206.7. Platform lifts shall be permitted as a component of an accessible route in an existing building or facility. In emergency transportable housing units, platform lifts shall not be used at the primary entrance to a unit required to provide mobility features complying with 809.2.
F206.7.1 Performance Areas and Speakers’ Platforms. Platform lifts shall be permitted to provide accessible routes to performance areas and speakers’ platforms.
F206.7.2 Wheelchair Spaces. Platform lifts shall be permitted to provide an accessible route to comply with the wheelchair space dispersion and line-of-sight requirements of F221 and 802.
F206.7.3 Incidental Spaces. Platform lifts shall be permitted to provide an accessible route to incidental spaces which are not public use spaces and which are occupied by five persons maximum.
F206.7.4 Judicial Spaces. Platform lifts shall be permitted to provide an accessible route to: jury boxes and witness stands; raised courtroom stations including, judges’ benches, clerks’ stations, bailiffs’ stations, deputy clerks’ stations, and court reporters’ stations; and to depressed areas such as the well of a court.
F206.7.5 Existing Site Constraints. Platform lifts shall be permitted where existing exterior site constraints make use of a ramp or elevator infeasible.
F206.7.6 Guest Rooms and Residential Dwelling Units. Platform lifts shall be permitted to connect levels within transient lodging guest rooms required to provide mobility features complying with 806.2 or residential dwelling units required to provide mobility features complying with 809.2.
F206.7.7 Amusement Rides. Platform lifts shall be permitted to provide accessible routes to load and unload areas serving amusement rides.
F206.7.8 Play Areas. Platform lifts shall be permitted to provide accessible routes to play components or soft contained play structures.
F206.7.9 Team or Player Seating. Platform lifts shall be permitted to provide accessible routes to team or player seating areas serving areas of sport activity.
F206.7.10 Recreational Boating Facilities and Fishing Piers and Platforms. Platform lifts shall be permitted to be used instead of gangways that are part of accessible routes serving recreational boating facilities and fishing piers and platforms.
F206.8 Security Barriers. Security barriers, including but not limited to, security bollards and security check points, shall not obstruct a required accessible route or accessible means of egress.
F207.1 General. Means of egress shall comply with section 1003.2.13 of the International Building Code (2000 edition and 2001 Supplement) or section 1007 of the International Building Code (2003 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1).
2. Areas of refuge shall not be required in detention and correctional facilities.
F207.2 Platform Lifts. Standby power shall be provided for platform lifts permitted by section 1003.2.13.4 of the International Building Code (2000 edition and 2001 Supplement) or section 1007.5 of the International Building Code (2003 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1) to serve as a part of an accessible means of egress.
F208.1 General. Where parking spaces are provided, parking spaces shall be provided in accordance with F208.
F208.2 Minimum Number. Parking spaces complying with 502 shall be provided in accordance with Table F208.2 except as required by F208.2.1, F208.2.2, and F208.2.3. Where more than one parking facility is provided on a site, the number of accessible spaces provided on the site shall be calculated according to the number of spaces required for each parking facility.
Table F208.2—Parking Spaces
| Total number of parking spaces provided in parking facility | Minimum number of required accessible parking spaces |
|---|---|
| 1 to 25 | 1. |
| 26 to 50 | 2. |
| 51 to 75 | 3. |
| 76 to 100 | 4. |
| 101 to 150 | 5. |
| 151 to 200 | 6. |
| 201 to 300 | 7. |
| 301 to 400 | 8. |
| 401 to 500 | 9. |
| 501 to 1000 | 2 percent of total. |
| 1001 and over | 20, plus 1 for each 100, or fraction thereof, over 1000. |
F208.2.1 Hospital Outpatient Facilities. Ten percent of patient and visitor parking spaces provided to serve hospital outpatient facilities shall comply with 502.
F208.2.2 Rehabilitation Facilities and Outpatient Physical Therapy Facilities. Twenty percent of patient and visitor parking spaces provided to serve rehabilitation facilities specializing in treating conditions that affect mobility and outpatient physical therapy facilities shall comply with 502.
F208.2.3 Residential Facilities. Parking spaces provided to serve facilities with residential dwelling units shall comply with F208.2.3.
F208.2.3.1 Parking for Residents. Where at least one parking space is provided for each residential dwelling unit, at least one parking space complying with 502 shall be provided for each residential dwelling unit required to provide mobility features complying with 809.2.
F208.2.3.2 Additional Parking Spaces for Residents. Where the total number of parking spaces provided for each residential dwelling unit exceeds one parking space per residential dwelling unit, 2 percent, but no fewer than one space, of all the parking spaces not covered by F208.2.3.1 shall comply with 502.
F208.2.3.3 Parking for Guests, Employees, and Other Non-Residents. Where parking spaces are provided for persons other than residents, parking shall be provided in accordance with Table F208.2.
F208.2.4 Van Parking Spaces. For every six or fraction of six parking spaces required by F208.2 to comply with 502, at least one shall be a van parking space complying with 502.
F208.3 Location. Parking facilities shall comply with F208.3.
F208.3.1 General. Parking spaces complying with 502 that serve a particular building or facility shall be located on the shortest accessible route from parking to an entrance complying with F206.4. Where parking serves more than one accessible entrance, parking spaces complying with 502 shall be dispersed and located on the shortest accessible route to the accessible entrances. In parking facilities that do not serve a particular building or facility, parking spaces complying with 502 shall be located on the shortest accessible route to an accessible pedestrian entrance of the parking facility.
2. Parking spaces shall be permitted to be located in different parking facilities if substantially equivalent or greater accessibility is provided in terms of distance from an accessible entrance or entrances, parking fee, and user convenience.
F208.3.2 Residential Facilities. In facilities containing residential dwelling units required to provide mobility features complying with 809.2, parking spaces provided in accordance with F208.2.3.1 shall be located on the shortest accessible route to the residential dwelling unit entrance they serve. Spaces provided in accordance with F208.2.3.2 shall be dispersed throughout all types of parking provided for the residential dwelling units.
F209.1 General. Passenger loading zones shall be provided in accordance with F209.
F209.2 Type. Where provided, passenger loading zones shall comply with F209.2.
F209.2.1 Passenger Loading Zones. Passenger loading zones, except those required to comply with F209.2.2 and F209.2.3, shall provide at least one passenger loading zone complying with 503 in every continuous 100 linear feet (30 m) of loading zone space, or fraction thereof.
F209.2.2 Bus Loading Zones. In bus loading zones restricted to use by designated or specified public transportation vehicles, each bus bay, bus stop, or other area designated for lift or ramp deployment shall comply with 810.2.
F209.2.3 On-Street Bus Stops. On-street bus stops shall comply with 810.2 to the maximum extent practicable.
F209.3 Medical Care and Long-Term Care Facilities. At least one passenger loading zone complying with 503 shall be provided at an accessible entrance to licensed medical care and licensed long-term care facilities where the period of stay exceeds twenty-four hours.
F209.4 Valet Parking. Parking facilities that provide valet parking services shall provide at least one passenger loading zone complying with 503.
F209.5 Mechanical Access Parking Garages. Mechanical access parking garages shall provide at least one passenger loading zone complying with 503 at vehicle drop-off and vehicle pick-up areas.
F210.1 General. Interior and exterior stairs that are part of a means of egress shall comply with 504.
2. In alterations, stairs between levels that are connected by an accessible route shall not be required to comply with 504, except that handrails complying with 505 shall be provided when the stairs are altered.
3. In assembly areas, aisle stairs shall not be required to comply with 504.
4. Stairs that connect play components shall not be required to comply with 504.
F211.1 General. Where drinking fountains are provided on an exterior site, on a floor, and within a secured area they shall be provided in accordance with F211.
F211.2 Minimum Number. No fewer than two drinking fountains shall be provided. One drinking fountain shall comply with 602.1 through 602.6 and one drinking fountain shall comply with 602.7.
F211.3 More Than Minimum Number. Where more than the minimum number of drinking fountains specified in F211.2 are provided, 50 percent of the total number of drinking fountains provided shall comply with 602.1 through 602.6, and 50 percent of the total number of drinking fountains provided shall comply with 602.7.
F212.1 General. Where provided, kitchens, kitchenettes, and sinks shall comply with F212.
F212.2 Kitchens and Kitchenettes. Kitchens and kitchenettes shall comply with 804.
F212.3 Sinks. Where sinks are provided, at least 5 percent, but no fewer than one, of each type provided in each accessible room or space shall comply with 606.
2. In camping facilities and picnic facilities, sinks shall not be required to comply with F212.3 where a cooktop or conventional range is not provided.
F213.1 General. Where toilet facilities and bathing facilities are provided, they shall comply with F213. Where toilet facilities and bathing facilities are provided in facilities permitted by F206.2.3 Exceptions 1 and 2 not to connect stories by an accessible route, toilet facilities and bathing facilities shall be provided on a story connected by an accessible route to an accessible entrance.
F213.2 Toilet Rooms and Bathing Rooms. Where toilet rooms are provided, each toilet room shall comply with 603. Where bathing rooms are provided, each bathing room shall comply with 603.
2. Where exceptions for alterations to qualified historic buildings or facilities are permitted by F202.5 and toilet rooms are provided, no fewer than one toilet room for each sex complying with 603 or one unisex toilet room complying with F213.2.1 shall be provided.
3. Where multiple single user portable toilet or bathing units are clustered at a single location, no more than 5 percent of the toilet units and bathing units at each cluster shall be required to comply with 603. Portable toilet units and bathing units complying with 603 shall be identified by the International Symbol of Accessibility complying with 703.7.2.1.
4. Where multiple single user toilet rooms are clustered at a single location, no more than 50 percent of the single user toilet rooms for each use at each cluster shall be required to comply with 603.
F213.2.1 Unisex (Single-Use or Family) Toilet and Bathing Rooms. Unisex toilet rooms shall contain not more than one lavatory, and two water closets without urinals or one water closet and one urinal. Unisex bathing rooms shall contain one shower or one shower and one bathtub, one lavatory, and one water closet. Doors to unisex toilet rooms and unisex bathing rooms shall have privacy latches.
F213.3 Plumbing Fixtures and Accessories. Plumbing fixtures and accessories provided in a toilet room or bathing room required to comply with F213.2 shall comply with F213.3.
F213.3.1 Toilet Compartments. Where toilet compartments are provided, at least one toilet compartment shall comply with 604.8.1. In addition to the compartment required to comply with 604.8.1, at least one compartment shall comply with 604.8.2 where six or more toilet compartments are provided, or where the combination of urinals and water closets totals six or more fixtures.
F213.3.2 Water Closets. Where water closets are provided at least one shall comply with 604.
F213.3.3 Urinals. Where more than one urinal is provided, at least one shall comply with 605.
F213.3.4 Lavatories. Where lavatories are provided, at least one shall comply with 606 and shall not be located in a toilet compartment.
F213.3.5 Mirrors. Where mirrors are provided, at least one shall comply with 603.3.
F213.3.6 Bathing Facilities. Where bathtubs or showers are provided, at least one bathtub complying with 607 or at least one shower complying with 608 shall be provided.
F213.3.7 Coat Hooks and Shelves. Where coat hooks or shelves are provided in toilet rooms without toilet compartments, at least one of each type shall comply with 603.4. Where coat hooks or shelves are provided in toilet compartments, at least one of each type complying with 604.8.3 shall be provided in toilet compartments required to comply with F213.3.1. Where coat hooks or shelves are provided in bathing facilities, at least one of each type complying with 603.4 shall serve fixtures required to comply with F213.3.6.
F214.1 General. Where provided, washing machines and clothes dryers shall comply with F214.
F214.2 Washing Machines. Where three or fewer washing machines are provided, at least one shall comply with 611. Where more than three washing machines are provided, at least two shall comply with 611.
F214.3 Clothes Dryers. Where three or fewer clothes dryers are provided, at least one shall comply with 611. Where more than three clothes dryers are provided, at least two shall comply with 611.
F215.1 General. Where fire alarm systems provide audible alarm coverage, alarms shall comply with F215.
F215.2 Public and Common Use Areas. Alarms in public use areas and common use areas shall comply with 702.
F215.3 Employee Work Areas. Where employee work areas have audible alarm coverage, the wiring system shall be designed so that visible alarms complying with 702 can be integrated into the alarm system.
F215.4 Transient Lodging. Guest rooms required to comply with F224.4 shall provide alarms complying with 702.
F215.5 Residential Dwelling Units. Where provided in residential dwelling units required to provide communication features complying with 809.3, alarms shall comply with 702.
F216.1 General. Signs shall be provided in accordance with F216 and shall comply with 703.
2. In parking facilities, signs shall not be required to comply with F216.2, F216.3, and F216.6 through F216.12.
3. Temporary, 7 days or less, signs shall not be required to comply with F216.
4. In detention and correctional facilities, signs not located in public use areas shall not be required to comply with F216.
F216.2 Designations. Interior and exterior signs identifying permanent rooms and spaces shall comply with 703.1, 703.2, and 703.5. Where pictograms are provided as designations of permanent interior rooms and spaces, the pictograms shall comply with 703.6 and shall have text descriptors complying with 703.2 and 703.5.
F216.3 Directional and Informational Signs. Signs that provide direction to or information about interior spaces and facilities of the site shall comply with 703.5.
F216.4 Means of Egress. Signs for means of egress shall comply with F216.4.
F216.4.1 Exit Doors. Doors at exit passageways, exit discharge, and exit stairways shall be identified by tactile signs complying with 703.1, 703.2, and 703.5.
F216.4.2 Areas of Refuge. Signs required by section 1003.2.13.5.4 of the International Building Code (2000 edition) or section 1007.6.4 of the International Building Code (2003 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1) to provide instructions in areas of refuge shall comply with 703.5.
F216.4.3 Directional Signs. Signs required by section 1003.2.13.6 of the International Building Code (2000 edition) or section 1007.7 of the International Building Code (2003 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1) to provide directions to accessible means of egress shall comply with 703.5.
F216.5 Parking. Parking spaces complying with 502 shall be identified by signs complying with 502.6.
2. In residential facilities, where parking spaces are assigned to specific residential dwelling units, identification of accessible parking spaces shall not be required.
F216.6 Entrances. Where not all entrances comply with 404, entrances complying with 404 shall be identified by the International Symbol of Accessibility complying with 703.7.2.1. Directional signs complying with 703.5 that indicate the location of the nearest entrance complying with 404 shall be provided at entrances that do not comply with 404.
F216.7 Elevators. Where existing elevators do not comply with 407, elevators complying with 407 shall be clearly identified with the International Symbol of Accessibility complying with 703.7.2.1.
F216.8 Toilet Rooms and Bathing Rooms. Where existing toilet rooms or bathing rooms do not comply with 603, directional signs indicating the location of the nearest toilet room or bathing room complying with 603 within the facility shall be provided. Signs shall comply with 703.5 and shall include the International Symbol of Accessibility complying with 703.7.2.1. Where existing toilet rooms or bathing rooms do not comply with 603, the toilet rooms or bathing rooms complying with 603 shall be identified by the International Symbol of Accessibility complying with 703.7.2.1. Where clustered single user toilet rooms or bathing facilities are permitted to use exception to F213.2, toilet rooms or bathing facilities complying with 603 shall be identified by the International Symbol of Accessibility complying with 703.7.2.1 unless all toilet rooms and bathing facilities comply with 603.
F216.9 TTYs. Identification and directional signs for public TTYs shall be provided in accordance with F216.9.
F216.9.1 Identification Signs. Public TTYs shall be identified by the International Symbol of TTY complying with 703.7.2.2.
F216.9.2 Directional Signs. Directional signs indicating the location of the nearest public TTY shall be provided at all banks of public pay telephones not containing a public TTY. In addition, where signs provide direction to public pay telephones, they shall also provide direction to public TTYs. Directional signs shall comply with 703.5 and shall include the International Symbol of TTY complying with 703.7.2.2.
F216.10 Assistive Listening Systems. Each assembly area required by F219 to provide assistive listening systems shall provide signs informing patrons of the availability of the assistive listening system. Assistive listening signs shall comply with 703.5 and shall include the International Symbol of Access for Hearing Loss complying with 703.7.2.4.
F216.11 Check-Out Aisles. Where more than one check-out aisle is provided, check-out aisles complying with 904.3 shall be identified by the International Symbol of Accessibility complying with 703.7.2.1. Where check-out aisles are identified by numbers, letters, or functions, signs identifying check-out aisles complying with 904.3 shall be located in the same location as the checkout aisle identification.
F216.12 Amusement Rides. Signs identifying the type of access provided on amusement rides shall be provided at entries to queues and waiting lines. In addition, where accessible unload areas also serve as accessible load areas, signs indicating the location of the accessible load and unload areas shall be provided at entries to queues and waiting lines.
F216.13 Trailhead Signs. Where new trail information signs are provided at trailheads on newly constructed or altered trails designed for use by hikers or pedestrians, the signs shall comply with 1017.10.
F217.1 General. Where coin-operated public pay telephones, coinless public pay telephones, public closed-circuit telephones, public courtesy phones, or other types of public telephones are provided, public telephones shall be provided in accordance with F217 for each type of public telephone provided. For purposes of this section, a bank of telephones shall be considered to be two or more adjacent telephones.
F217.2 Wheelchair Accessible Telephones. Where public telephones are provided, wheelchair accessible telephones complying with 704.2 shall be provided in accordance with Table F217.2.
Table F217.2—Wheelchair Accessible Telephones
| Number of telephones provided on a floor, level, or exterior site | Minimum number of required wheelchair accessible telephones |
|---|---|
| 1 or more single units | 1 per floor, level, and exterior |
| 1 bank | 1 per floor, level, and exterior |
| 2 or more banks | 1 per bank. |
F217.3 Volume Controls. All public telephones shall have volume controls complying with 704.3.
F217.4 TTYs. TTYs complying with 704.4 shall be provided in accordance with F217.4.
F217.4.1 Bank Requirement. Where four or more public pay telephones are provided at a bank of telephones, at least one public TTY complying with 704.4 shall be provided at that bank.
F217.4.2 Floor Requirement. Where at least one public pay telephone is provided on a floor of a building, at least one public TTY shall be provided on that floor.
F217.4.3 Building Requirement. Where at least one public pay telephone is provided in a public use area of a building, at least one public TTY shall be provided in the building in a public use area.
F217.4.4 Exterior Site Requirement. Where four or more public pay telephones are provided on an exterior site, at least one public TTY shall be provided on the site.
F217.4.5 Rest Stops, Emergency Roadside Stops, and Service Plazas. Where at least one public pay telephone is provided at a public rest stop, emergency roadside stop, or service plaza, at least one public TTY shall be provided.
F217.4.6 Hospitals. Where at least one public pay telephone is provided serving a hospital emergency room, hospital recovery room, or hospital waiting room, at least one public TTY shall be provided at each location.
F217.4.7 Transportation Facilities. In transportation facilities, in addition to the requirements of F217.4.1 through F217.4.4, where at least one public pay telephone serves a particular entrance to a bus or rail facility, at least one public TTY shall be provided to serve that entrance. In airports, in addition to the requirements of F217.4.1 through F217.4.4, where four or more public pay telephones are located in a terminal outside the security areas, a concourse within the security areas, or a baggage claim area in a terminal, at least one public TTY shall be provided in each location.
F217.4.8 Detention and Correctional Facilities. In detention and correctional facilities, where at least one pay telephone is provided in a secured area used only by detainees or inmates and security personnel, at least one TTY shall be provided in at least one secured area.
F217.5 Shelves for Portable TTYs. Where a bank of telephones in the interior of a building consists of three or more public pay telephones, at least one public pay telephone at the bank shall be provided with a shelf and an electrical outlet in accordance with 704.5.
2. The shelf and electrical outlet shall not be required at a bank of telephones with a TTY.
F218.1 General. Transportation facilities shall comply with F218.
F218.2 New and Altered Fixed Guideway Stations. New and altered stations in rapid rail, light rail, commuter rail, intercity rail, high speed rail, and other fixed guideway systems shall comply with 810.5 through 810.10.
F218.3 Bus Shelters. Where provided, bus shelters shall comply with 810.3 and 810.4.
F218.4 Other Transportation Facilities. In other transportation facilities, public address systems shall comply with 810.7 and clocks shall comply with 810.8.
F219.1 General. Assistive listening systems shall be provided in accordance with F219 and shall comply with 706.
F219.2 Required Systems. In each assembly area where audible communication is integral to the use of the space, an assistive listening system shall be provided.
F219.3 Receivers. Receivers complying with 706.2 shall be provided for assistive listening systems in each assembly area in accordance with Table F219.3. Twenty-five percent minimum of receivers provided, but no fewer than two, shall be hearing-aid compatible in accordance with 706.3.
2. Where all seats in an assembly area are served by an induction loop assistive listening system, the minimum number of receivers required by Table F219.3 to be hearing-aid compatible shall not be required to be provided.
Table F219.3—Receivers for Assistive Listening Systems
| Capacity of seating in assembly area | Minimum number of required receivers | Minimum number of required receivers required to be hearing-aid compatible |
|---|---|---|
| 50 or less | 2 | 2. |
| 51 to 200 | 2, plus 1 per 25 seats over 50 seats | 2. |
| 201 to 500 | 2, plus 1 per 25 seats over 50 seats 1 | 1 per 4 receivers. 1 |
| 501 to 1000 | 20, plus 1 per 33 seats over 500 seats 1 | 1 per 4 receivers. 1 |
| 1001 to 2000 | 35, plus 1 per 50 seats over 1000 seats 1 | 1 per 4 receivers. 1 |
| 2001 and over | 55, plus 1 per 100 seats over 2000 seats 1 | 1 per 4 receivers. 1 |
1 Or fraction thereof.
F220.1 General. Where automatic teller machines or self-service fare vending, collection, or adjustment machines are provided, at least one of each type provided at each location shall comply with 707. Where bins are provided for envelopes, waste paper, or other purposes, at least one of each type shall comply with 811.
F221.1 General. Assembly areas shall provide wheelchair spaces, companion seats, and designated aisle seats complying with F221 and 802. In addition, lawn seating shall comply with F221.5.
F221.2 Wheelchair Spaces. Wheelchair spaces complying with F221.2 shall be provided in assembly areas with fixed seating.
F221.2.1 Number and Location. Wheelchair spaces shall be provided complying with F221.2.1.
F221.2.1.1 General Seating. Wheelchair spaces complying with 802.1 shall be provided in accordance with Table F221.2.1.1.
Table F221.2.1.1—Number of Wheelchair Spaces in Assembly Areas
| Number of seats | Minimum number of required wheelchair spaces |
|---|---|
| 4 to 25 | 1. |
| 26 to 50 | 2. |
| 51 to 150 | 4. |
| 151 to 300 | 5. |
| 301 to 500 | 6. |
| 501 to 5000 | 6, plus 1 for each 150, or fraction thereof, between 501 through 5000. |
| 5001 and over | 36, plus 1 for each 200, or fraction thereof, over 5000. |
F221.2.1.2 Luxury Boxes, Club Boxes, and Suites in Arenas, Stadiums, and Grandstands. In each luxury box, club box, and suite within arenas, stadiums, and grandstands, wheelchair spaces complying with 802.1 shall be provided in accordance with Table F221.2.1.1.
F221.2.1.3 Other Boxes. In boxes other than those required to comply with F221.2.1.2, the total number of wheelchair spaces required shall be determined in accordance with Table F221.2.1.1. Wheelchair spaces shall be located in not less than 20 percent of all boxes provided. Wheelchair spaces shall comply with 802.1.
F221.2.1.4 Team or Player Seating. At least one wheelchair space complying with 802.1 shall be provided in team or player seating areas serving areas of sport activity.
F221.2.2 Integration. Wheelchair spaces shall be an integral part of the seating plan.
F221.2.3 Lines of Sight and Dispersion. Wheelchair spaces shall provide lines of sight complying with 802.2 and shall comply with F221.2.3. In providing lines of sight, wheelchair spaces shall be dispersed. Wheelchair spaces shall provide spectators with choices of seating locations and viewing angles that are substantially equivalent to, or better than, the choices of seating locations and viewing angles available to all other spectators. When the number of wheelchair spaces required by F221.2.1 has been met, further dispersion shall not be required.
F221.2.3.1 Horizontal Dispersion. Wheelchair spaces shall be dispersed horizontally.
2. In row seating, two wheelchair spaces shall be permitted to be located side-by-side.
F221.2.3.2 Vertical Dispersion. Wheelchair spaces shall be dispersed vertically at varying distances from the screen, performance area, or playing field. In addition, wheelchair spaces shall be located in each balcony or mezzanine that is located on an accessible route.
2. In bleachers, wheelchair spaces shall not be required to be provided in rows other than rows at points of entry to bleacher seating.
F221.3 Companion Seats. At least one companion seat complying with 802.3 shall be provided for each wheelchair space required by F221.2.1.
F221.4 Designated Aisle Seats. At least 5 percent of the total number of aisle seats provided shall comply with 802.4 and shall be the aisle seats located closest to accessible routes.
F221.5 Lawn Seating. Lawn seating areas and exterior overflow seating areas, where fixed seats are not provided, shall connect to an accessible route.
F222.1 General. Where dressing rooms, fitting rooms, or locker rooms are provided, at least 5 percent, but no fewer than one, of each type of use in each cluster provided shall comply with 803.
F222.2 Coat Hooks and Shelves. Where coat hooks or shelves are provided in dressing, fitting or locker rooms without individual compartments, at least one of each type shall comply with 803.5. Where coat hooks or shelves are provided in individual compartments at least one of each type complying with 803.5 shall be provided in individual compartments in dressing, fitting, or locker rooms required to comply with F222.1.
F223.1 General. In licensed medical care facilities and licensed long-term care facilities where the period of stay exceeds twenty-four hours, patient or resident sleeping rooms shall be provided in accordance with F223.
F223.1.1 Alterations. Where sleeping rooms are altered or added, the requirements of F223 shall apply only to the sleeping rooms being altered or added until the number of sleeping rooms complies with the minimum number required for new construction.
F223.2 Hospitals, Rehabilitation Facilities, Psychiatric Facilities and Detoxification Facilities. Hospitals, rehabilitation facilities, psychiatric facilities and detoxification facilities shall comply with F223.2.
F223.2.1 Facilities Not Specializing in Treating Conditions That Affect Mobility. In facilities not specializing in treating conditions that affect mobility, at least 10 percent, but no fewer than one, of the patient sleeping rooms shall provide mobility features complying with 805.
F223.2.2 Facilities Specializing in Treating Conditions That Affect Mobility. In facilities specializing in treating conditions that affect mobility, 100 percent of the patient sleeping rooms shall provide mobility features complying with 805.
F223.3 Long-Term Care Facilities. In licensed long-term care facilities, at least 50 percent, but no fewer than one, of each type of resident sleeping room shall provide mobility features complying with 805.
F224.1 General. Transient lodging facilities shall provide guest rooms in accordance with F224.
F224.1.1 Alterations. Where guest rooms are altered or added, the requirements of F224 shall apply only to the guest rooms being altered or added until the number of guest rooms complies with the minimum number required for new construction.
F224.1.2 Guest Room Doors and Doorways. Entrances, doors, and doorways providing user passage into and within guest rooms that are not required to provide mobility features complying with 806.2 shall comply with 404.2.3.
F224.2 Guest Rooms with Mobility Features. In transient lodging facilities, guest rooms with mobility features complying with 806.2 shall be provided in accordance with Table F224.2.
Table F224.2—Guest Rooms With Mobility Features
| Total number of guest rooms provided | Minimum number of required rooms without roll-in showers | Minimum number of required rooms with roll-in showers | Total number of required rooms |
|---|---|---|---|
| 1 to 25 | 1 | 0 | 1. |
| 26 to 50 | 2 | 0 | 2. |
| 51 to 75 | 3 | 1 | 4. |
| 76 to 100 | 4 | 1 | 5. |
| 101 to 150 | 5 | 2 | 7. |
| 151 to 200 | 6 | 2 | 8. |
| 201 to 300 | 7 | 3 | 10. |
| 301 to 400 | 8 | 4 | 12. |
| 401 to 500 | 9 | 4 | 13. |
| 501 to 1000 | 2 percent of total | 1 percent of total | 3 percent of total. |
| 1001 and over | 20, plus 1 for each 100, or fraction thereof, over 1000 | 10, plus 1 for each 100, or fraction thereof, over 1000 | 30, plus 2 for each 100, or fraction thereof, over 1000. |
F224.3 Beds. In guest rooms having more than 25 beds, 5 percent minimum of the beds shall have clear floor space complying with 806.2.3.
F224.4 Guest Rooms with Communication Features. In transient lodging facilities, guest rooms with communication features complying with 806.3 shall be provided in accordance with Table F224.4.
Table F224.4—Guest Rooms With Communication Features
| Total number of guest rooms provided | Minimum number of required guest rooms with communication features |
|---|---|
| 2 to 25 | 2. |
| 26 to 50 | 4. |
| 51 to 75 | 7. |
| 76 to 100 | 9. |
| 101 to 150 | 12. |
| 151 to 200 | 14. |
| 201 to 300 | 17. |
| 301 to 400 | 20. |
| 401 to 500 | 22. |
| 501 to 1000 | 5 percent of total. |
| 1001 and over | 50, plus 3 for each 100 over 1000. |
F224.5 Dispersion. Guest rooms required to provide mobility features complying with 806.2 and guest rooms required to provide communication features complying with 806.3 shall be dispersed among the various classes of guest rooms, and shall provide choices of types of guest rooms, number of beds, and other amenities comparable to the choices provided to other guests. Where the minimum number of guest rooms required to comply with 806 is not sufficient to allow for complete dispersion, guest rooms shall be dispersed in the following priority: guest room type, number of beds, and amenities. At least one guest room required to provide mobility features complying with 806.2 shall also provide communication features complying with 806.3. Not more than 10 percent of guest rooms required to provide mobility features complying with 806.2 shall be used to satisfy the minimum number of guest rooms required to provide communication features complying with 806.3.
F225.1 General. Storage facilities shall comply with F225.
F225.2 Storage. Where storage is provided in accessible spaces, at least one of each type shall comply with 811.
F225.2.1 Lockers. Where lockers are provided, at least 5 percent, but no fewer than one of each type, shall comply with 811.
F225.2.2 Self-Service Shelving. Self-service shelves shall be located on an accessible route complying with 402. Self-service shelving shall not be required to comply with 308.
F225.3 Self-Service Storage Facilities. Self-service storage facilities shall provide individual self-service storage spaces complying with these requirements in accordance with Table F225.3.
Table F225.3—Self-Service Storage Facilities
| Total spaces in facility | Minimum number of spaces required to be accessible |
|---|---|
| 1 to 200 | 5 percent, but no fewer than 1. |
| 201 and over | 10, plus 2 percent of total number of units over 200. |
F225.3.1 Dispersion. Individual self-service storage spaces shall be dispersed throughout the various classes of spaces provided. Where more classes of spaces are provided than the number required to be accessible, the number of spaces shall not be required to exceed that required by Table F225.3. Self-service storage spaces complying with Table F225.3 shall not be required to be dispersed among buildings in a multi-building facility.
F226.1 General. Where dining surfaces are provided for the consumption of food or drink, at least 5 percent of the seating spaces and standing spaces at the dining surfaces shall comply with 902. In addition, where work surfaces are provided, at least 5 percent shall comply with 902.
2. Check writing surfaces provided at check-out aisles not required to comply with 904.3 shall not be required to comply with 902.
F226.2 Dispersion. Dining surfaces and work surfaces required to comply with 902 shall be dispersed throughout the space or facility containing dining surfaces and work surfaces.
F227.1 General. Where provided, check-out aisles, sales counters, service counters, food service lines, queues, and waiting lines shall comply with F227 and 904.
F227.2 Check-Out Aisles. Where check-out aisles are provided, check-out aisles complying with 904.3 shall be provided in accordance with Table F227.2. Where check-out aisles serve different functions, check-out aisles complying with 904.3 shall be provided in accordance with Table F227.2 for each function. Where check-out aisles are dispersed throughout the building or facility, check-out aisles complying with 904.3 shall be dispersed.
Table F227.2—Check-Out Aisles
| Number of check-out aisles of each function | Minimum number of check-out aisles of each function required to comply with 904.3 |
|---|---|
| 1 to 4 | 1. |
| 5 to 8 | 2. |
| 9 to 15 | 3. |
| 16 and over | 3, plus 20 percent of additional aisles. |
F227.2.1 Altered Check-Out Aisles. Where check-out aisles are altered, at least one of each check-out aisle serving each function shall comply with 904.3 until the number of check-out aisles complies with F227.2.
F227.3 Counters. Where provided, at least one of each type of sales counter and service counter shall comply with 904.4. Where counters are dispersed throughout the building or facility, counters complying with 904.4 also shall be dispersed.
F227.4 Food Service Lines. Food service lines shall comply with 904.5. Where self-service shelves are provided, at least 50 percent, but no fewer than one, of each type provided shall comply with 308.
F227.5 Queues and Waiting Lines. Queues and waiting lines servicing counters or check-out aisles required to comply with 904.3 or 904.4 shall comply with 403.
F228.1 General. Where provided, at least one of each type of depository, vending machine, change machine, and fuel dispenser shall comply with 309.
2. Fuel dispensers provided for fueling official government vehicles shall not be required to comply with 309.
F228.2 Mail Boxes. Where mail boxes are provided in an interior location, at least 5 percent, but no fewer than one, of each type shall comply with 309. In facilities with residential dwelling units, where mail boxes are provided for each residential dwelling unit, mail boxes complying with 309 shall be provided for each residential dwelling unit required to provide mobility features complying with 809.2.
F229.1 General. Where glazed openings are provided in accessible rooms or spaces for operation by occupants, excluding employees, at least one opening shall comply with 309. In accessible rooms or spaces, each glazed opening required by an administrative authority to be operable shall comply with 309.
2. Glazed openings in guest rooms required to provide communication features and in guest rooms required to comply with F206.5.3 shall not be required to comply with F229.
F230.1 General. Where a two-way communication system is provided to gain admittance to a building or facility or to restricted areas within a building or facility, the system shall comply with 708.
F231.1 General. Judicial facilities shall comply with F231.
F231.2 Courtrooms. Each courtroom shall comply with 808.
F231.3 Holding Cells. Where provided, central holding cells and court-floor holding cells shall comply with F231.3.
F231.3.1 Central Holding Cells. Where separate central holding cells are provided for adult male, juvenile male, adult female, or juvenile female, one of each type shall comply with 807.2. Where central holding cells are provided and are not separated by age or sex, at least one cell complying with 807.2 shall be provided.
F231.3.2 Court-Floor Holding Cells. Where separate court-floor holding cells are provided for adult male, juvenile male, adult female, or juvenile female, each courtroom shall be served by one cell of each type complying with 807.2. Where court-floor holding cells are provided and are not separated by age or sex, courtrooms shall be served by at least one cell complying with 807.2. Cells may serve more than one courtroom.
F231.4 Visiting Areas. Visiting areas shall comply with F231.4.
F231.4.1 Cubicles and Counters. At least 5 percent, but no fewer than one, of cubicles shall comply with 902 on both the visitor and detainee sides. Where counters are provided, at least one shall comply with 904.4.2 on both the visitor and detainee sides.
F231.4.2 Partitions. Where solid partitions or security glazing separate visitors from detainees at least one of each type of cubicle or counter partition shall comply with 904.6.
F232.1 General. Buildings, facilities, or portions thereof, in which people are detained for penal or correction purposes, or in which the liberty of the inmates is restricted for security reasons shall comply with F232.
F232.2 General Holding Cells and General Housing Cells. General holding cells and general housing cells shall be provided in accordance with F232.2.
F232.2.1 Cells with Mobility Features. At least 2 percent, but no fewer than one, of the total number of cells in a facility shall provide mobility features complying with 807.2.
F232.2.1.1 Beds. In cells having more than 25 beds, at least 5 percent of the beds shall have clear floor space complying with 807.2.3.
F232.2.2 Cells with Communication Features. At least 2 percent, but no fewer than one, of the total number of general holding cells and general housing cells equipped with audible emergency alarm systems and permanently installed telephones within the cell shall provide communication features complying with 807.3.
F232.3 Special Holding Cells and Special Housing Cells. Where special holding cells or special housing cells are provided, at least one cell serving each purpose shall provide mobility features complying with 807.2. Cells subject to this requirement include, but are not limited to, those used for purposes of orientation, protective custody, administrative or disciplinary detention or segregation, detoxification, and medical isolation.
F232.4 Medical Care Facilities. Patient bedrooms or cells required to comply with F223 shall be provided in addition to any medical isolation cells required to comply with F232.3.
F232.5 Visiting Areas. Visiting areas shall comply with F232.5.
F232.5.1 Cubicles and Counters. At least 5 percent, but no fewer than one, of cubicles shall comply with 902 on both the visitor and detainee sides. Where counters are provided, at least one shall comply with 904.4.2 on both the visitor and detainee or inmate sides.
F232.5.2 Partitions. Where solid partitions or security glazing separate visitors from detainees or inmates at least one of each type of cubicle or counter partition shall comply with 904.6.
F233.1 General. Facilities with residential dwelling units shall comply with F233.
F233.2 Residential Dwelling Units Provided by HUD or Through Grant or Loan Programs Administered by HUD. Where facilities with residential dwelling units are provided by the Department of Housing and Urban Development (HUD), or through a grant or loan program administered by HUD, residential dwelling units with mobility features complying with 809.2 shall be provided in a number required by the regulations issued by HUD under Section 504 of the Rehabilitation Act of 1973, as amended. Residential dwelling units required to provide mobility features complying with 809.2 shall be on an accessible route as required by F206. In addition, residential dwelling units with communication features complying with 809.3 shall be provided in a number required by the applicable HUD regulations. Residential dwelling units subject to F233.2 shall not be required to comply with F233.3 or F233.4.
F233.3 Residential Dwelling Units Provided on Military Installations. Military installations with residential dwelling units shall comply with F233.3. Residential dwelling units on military installations subject to F233.3 shall not be required to comply with F233.2 or F233.4.
F233.3.1 Residential Dwelling Units with Mobility Features. Facilities on military installations containing residential dwelling units, other than emergency transportable housing units, shall comply with F233.3.1.1. Facilities on military installations containing emergency transportable housing units shall comply with F233.3.1.2.
F233.3.1.1 Facilities Other Than Those Containing Emergency Transportable Housing Units. At least 5 percent, but no fewer than one, of the total number of residential dwelling units, other than emergency transportable housing units, in the facility shall provide mobility features complying with 809.2 and shall be on an accessible route as required by F206.
F233.3.1.2 Facilities Containing Emergency Transportable Housing Units. Entities shall provide emergency transportable housing units with mobility features complying with 809.2 as determined by a needs assessment conducted by the entity providing the emergency transportable housing units.
F233.3.2 Residential Dwelling Units with Communication Features. Facilities on military installations, other than those containing emergency transportable housing units, shall comply with F233.3.2.1. Facilities on military installations containing emergency transportable housing units shall comply with F233.3.2.2.
F233.3.2.1 Facilities Other Than Those Containing Emergency Transportable Housing Units. At least 2 percent, but no fewer than one, of the total number of residential dwelling units, other than emergency transportable housing units, in the facility shall provide communication features complying with 809.3.
F233.3.2.2 Facilities Containing Emergency Transportable Housing Units. Entities shall provide emergency transportable housing units with residential dwelling unit smoke alarms complying with 809.3.1 and, where weather alert systems are provided, with weather alert systems complying with 809.3.4 as determined by a needs assessment conducted by the entity providing the emergency transportable housing units.
F233.3.3 Additions. Where an addition to an existing building results in an increase in the number of residential dwelling units, the requirements of F233.3.1.1 and F233.3.2.1 shall apply only to the residential dwelling units that are added until the total number of residential dwelling units complies with the minimum number required by F233.3.1.1 and F233.3.2.1. Residential dwelling units required to comply with F233.3.1.1 shall be on an accessible route as required by F206.
F233.3.4 Alterations. Alterations shall comply with F233.3.4.
EXCEPTION: Where compliance with 809.2.1, 809.2.3, or 809.2.4 is technically infeasible, or where it is technically infeasible to provide an accessible route to a residential dwelling unit, the entity shall be permitted to alter or construct a comparable residential dwelling unit to comply with 809.2 provided that the minimum number of residential dwelling units required by F233.3.1.1 and F233.3.2.1, as applicable, is satisfied.
F233.3.4.1 Alterations to Vacated Buildings. Where a building is vacated for the purposes of alteration, at least 5 percent of the residential dwelling units shall comply with 809.2 and shall be on an accessible route as required by 206. In addition, at least 2 percent of the residential dwelling units shall comply with 809.3.
F233.3.4.2 Alterations to Individual Residential Dwelling Units. In individual residential dwelling units, where a bathroom or a kitchen is substantially altered, and at least one other room is altered, the requirements of F233.3.1 shall apply to the altered residential dwelling units until the total number of residential dwelling units complies with the minimum number required by F233.3.1.1 and F233.3.2.1. Residential dwelling units required to comply with F233.3.1.1 shall be on an accessible route as required by 206.
F233.3.5 Dispersion. Residential dwelling units required to provide mobility features complying with 809.2 and residential dwelling units required to provide communication features complying with 809.3 shall be dispersed among the various types of residential dwelling units in the facility and shall provide choices of residential dwelling units comparable to, and integrated with, those available to other residents.
2. Emergency transportable housing units required to provide mobility features complying with 809.2 shall not be required to be dispersed among the various types of residential dwelling units in a facility or to provide choices of residential dwelling units comparable to those available to other residents.
F233.4 Residential Dwelling Units Provided by Other Federal Agencies or Through Grant or Loan Programs Administered by Other Federal Agencies. Facilities with residential dwelling units provided by other federal agencies or through grant or loan programs administered by other federal agencies shall comply with F233.4. Residential dwelling units subject to F233.4 shall not be required to comply with F233.2 or F233.3.
F233.4.1 Residential Dwelling Units with Mobility Features. Facilities, other than those containing emergency transportable housing units, shall comply with F233.4.1.1. Facilities containing emergency transportable housing units shall comply with F233.4.1.2.
F233.4.1.1 Facilities Other Than Those Containing Emergency Transportable Housing Units. At least 5 percent, but no fewer than one, of the total number of residential dwelling units, other than emergency transportable housing units, in the facility shall provide mobility features complying with 809.2 and shall be on an accessible route as required by F206.
EXCEPTION: Where facilities contain 15 or fewer residential dwelling units, the requirements of F233.4.1.1 shall apply to the total number of residential dwelling units that are constructed under a single contract, or are developed as a whole, whether or not located on a common site.
F233.4.1.2 Facilities Containing Emergency Transportable Housing Units. Emergency transportable housing units with mobility features shall be provided in accordance with F233.4.1.2.
F233.4.1.2.1 Private Sites Provided by Occupant of Unit. Where emergency transportable housing units are installed on private sites provided by the occupant of the unit, entities shall provide emergency transportable housing units with mobility features complying with 809.2 as determined by a needs assessment conducted by the entity providing the emergency transportable housing units.
F233.4.1.2.2 Group Sites. Where group sites are developed for the installation of emergency transportable housing units, entities shall comply with 233.3.1.2.2.
F233.4.1.2.2.1 Unit Pads. At least 10 percent, but no fewer than one, of the unit pads prepared for the installation of emergency transportable housing units at each group site shall be designed and constructed to accept the installation of emergency transportable housing units with mobility features complying with 809.2 and shall be on an accessible route as required by F206.
F233.4.1.2.2.2 Units Installed. At least 5 percent, but no fewer than one, of the total number of the emergency transportable housing units installed at each group site shall provide mobility features complying with 809.2.
F233.4.2 Residential Dwelling Units with Communication Features. Facilities, other than those containing emergency transportable housing units, shall comply with F233.4.2.1. Facilities containing emergency transportable housing units shall comply with F233.4.2.2.
F233.4.2.1 Facilities Other Than Those Containing Emergency Transportable Housing Units. At least 2 percent, but no fewer than one, of the total number of residential dwelling units, other than emergency transportable housing units, in the facility shall provide communication features complying with 809.3.
EXCEPTION: Where facilities contain 15 or fewer residential dwelling units, the requirements of F233.4.2.1 shall apply to the total number of residential dwelling units that are constructed under a single contract, or are developed as a whole, whether or not located on a common site.
F233.4.2.2 Facilities Containing Emergency Transportable Housing Units. Entities shall provide emergency transportable housing units with residential dwelling unit smoke alarms complying with 809.3.1 and, where weather alert systems are provided, with weather alert systems complying with 809.3.4 as determined by a needs assessment conducted by the entity providing the emergency transportable housing units.
F233.4.3 Residential Dwelling Units for Sale. Residential dwelling units offered for sale shall provide accessible features to the extent required by regulations issued by Federal agencies under Section 504 of the Rehabilitation Act of 1973, as amended.
F233.4.4 Additions. Where an addition to an existing building results in an increase in the number of residential dwelling units, the requirements of F233.4.1.1 and F233.4.2.1 shall apply only to the residential dwelling units that are added until the total number of residential dwelling units complies with the minimum number required by F233.4.1.1 and F233.4.2.1. Residential dwelling units required to comply with F233.4.1.1 shall be on an accessible route as required by F206.
F233.4.5 Alterations. Alterations shall comply with F233.4.5.
EXCEPTION: Where compliance with 809.2.1, 809.2.2, or 809.2.3 is technically infeasible, or where it is technically infeasible to provide an accessible route to a residential dwelling unit, the entity shall be permitted to alter or construct a comparable residential dwelling unit to comply with 809.2 provided that the minimum number of residential dwelling units required by F233.4.1.1 and F233.4.2.1, as applicable, is satisfied.
F233.4.5.1 Alterations to Vacated Buildings. Where a building is vacated for the purposes of alteration, and the altered building contains more than 15 residential dwelling units, at least 5 percent of the residential dwelling units shall comply with 809.2 and shall be on an accessible route as required by F206. In addition, at least 2 percent of the residential dwelling units shall comply with 809.3.
F233.4.5.2 Alterations to Individual Residential Dwelling Units. In individual residential dwelling units, where a bathroom or a kitchen is substantially altered, and at least one other room is altered, the requirements of F233.4.1 shall apply to the altered residential dwelling units until the total number of residential dwelling units complies with the minimum number required by F233.4.1.1 and F233.4.2.1. Residential dwelling units required to comply with F233.4.1.1 shall be on an accessible route as required by F206.
EXCEPTION: Where facilities contain 15 or fewer residential dwelling units, the requirements of F233.4.1.1 and F233.4.2.1 shall apply to the total number of residential dwelling units that are altered under a single contract, or are developed as a whole, whether or not located on a common site.
F233.4.6 Dispersion. Residential dwelling units required to provide mobility features complying with 809.2 and residential dwelling units required to provide communication features complying with 809.3 shall be dispersed among the various types of residential dwelling units in the facility and shall provide choices of residential dwelling units comparable to, and integrated with, those available to other residents.
EXCEPTIONS: 1. Where multi-story residential dwelling units are one of the types of residential dwelling units provided, one-story residential dwelling units shall be permitted as a substitute for multi-story residential dwelling units where equivalent spaces and amenities are provided in the one-story residential dwelling unit.
2. Emergency transportable housing units required to provide mobility features complying with 809.2 shall not be required to be dispersed among the various types of residential dwelling units in a facility or to provide choices of residential dwelling units comparable to those available to other residents.
F234.1 General. Amusement rides shall comply with F234.
F234.2 Load and Unload Areas. Load and unload areas serving amusement rides shall comply with 1002.3.
F234.3 Minimum Number. Amusement rides shall provide at least one wheelchair space complying with 1002.4, or at least one amusement ride seat designed for transfer complying with 1002.5, or at least one transfer device complying with 1002.6.
2. Amusement rides designed primarily for children, where children are assisted on and off the ride by an adult, shall not be required to comply with F234.3.
3. Amusement rides that do not provide amusement ride seats shall not be required to comply with F234.3.
F234.4 Existing Amusement Rides. Where existing amusement rides are altered, the alteration shall comply with F234.4.
F234.4.1 Load and Unload Areas. Where load and unload areas serving existing amusement rides are newly designed and constructed, the load and unload areas shall comply with 1002.3.
F234.4.2 Minimum Number. Where the structural or operational characteristics of an amusement ride are altered to the extent that the amusement ride’s performance differs from that specified by the manufacturer or the original design, the amusement ride shall comply with F234.3.
F235.1 General. Recreational boating facilities shall comply with F235.
F235.2 Boat Slips. Boat slips complying with 1003.3.1 shall be provided in accordance with Table F235.2. Where the number of boat slips is not identified, each 40 feet (12 m) of boat slip edge provided along the perimeter of the pier shall be counted as one boat slip for the purpose of this section.
Table F235.2—Boat Slips
| Total number of boat slips provided in facility | Minimum number of required accessible boat slips |
|---|---|
| 1 to 25 | 1. |
| 26 to 50 | 2. |
| 51 to 100 | 3. |
| 101 to 150 | 4. |
| 151 to 300 | 5. |
| 301 to 400 | 6. |
| 401 to 500 | 7. |
| 501 to 600 | 8. |
| 601 to 700 | 9. |
| 701 to 800 | 10. |
| 801 to 900 | 11. |
| 901 to 1000 | 12. |
| 1001 and over | 12, plus 1 for every 100, or fraction thereof, over 1000. |
F235.2.1 Dispersion. Boat slips complying with 1003.3.1 shall be dispersed throughout the various types of boat slips provided. Where the minimum number of boat slips required to comply with 1003.3.1 has been met, no further dispersion shall be required.
F235.3 Boarding Piers at Boat Launch Ramps. Where boarding piers are provided at boat launch ramps, at least 5 percent, but no fewer than one, of the boarding piers shall comply with 1003.3.2.
F236.1 General. At least one of each type of exercise machine and equipment shall comply with 1004.
F237.1 General. Fishing piers and platforms shall comply with 1005.
F238.1 General. Golf facilities shall comply with F238.
F238.2 Golf Courses. Golf courses shall comply with F238.2.
F238.2.1 Teeing Grounds. Where one teeing ground is provided for a hole, the teeing ground shall be designed and constructed so that a golf car can enter and exit the teeing ground. Where two teeing grounds are provided for a hole, the forward teeing ground shall be designed and constructed so that a golf car can enter and exit the teeing ground. Where three or more teeing grounds are provided for a hole, at least two teeing grounds, including the forward teeing ground, shall be designed and constructed so that a golf car can enter and exit each teeing ground.
F238.2.2 Putting Greens. Putting greens shall be designed and constructed so that a golf car can enter and exit the putting green.
F238.2.3 Weather Shelters. Where provided, weather shelters shall be designed and constructed so that a golf car can enter and exit the weather shelter and shall comply with 1006.4.
F238.3 Practice Putting Greens, Practice Teeing Grounds, and Teeing Stations at Driving Ranges. At least 5 percent, but no fewer than one, of practice putting greens, practice teeing grounds, and teeing stations at driving ranges shall be designed and constructed so that a golf car can enter and exit the practice putting greens, practice teeing grounds, and teeing stations at driving ranges.
F239.1 General. Miniature golf facilities shall comply with F239.
F239.2 Minimum Number. At least 50 percent of holes on miniature golf courses shall comply with 1007.3.
F239.3 Miniature Golf Course Configuration. Miniature golf courses shall be configured so that the holes complying with 1007.3 are consecutive. Miniature golf courses shall provide an accessible route from the last hole complying with 1007.3 to the course entrance or exit without requiring travel through any other holes on the course.
F240.1 General. Play areas for children ages 2 and over shall comply with F240. Where separate play areas are provided within a site for specific age groups, each play area shall comply with F240.
2. In existing play areas, where play components are relocated for the purposes of creating safe use zones and the ground surface is not altered or extended for more than one use zone, the play area shall not be required to comply with F240.
3. Amusement attractions shall not be required to comply with F240.
4. Where play components are altered and the ground surface is not altered, the ground surface shall not be required to comply with 1008.2.6 unless required by F202.4.
F240.1.1 Additions. Where play areas are designed and constructed in phases, the requirements of F240 shall apply to each successive addition so that when the addition is completed, the entire play area complies with all the applicable requirements of F240.
F240.2 Play Components. Where provided, play components shall comply with F240.2.
F240.2.1 Ground Level Play Components. Ground level play components shall be provided in the number and types required by F240.2.1. Ground level play components that are provided to comply with F240.2.1.1 shall be permitted to satisfy the additional number required by F240.2.1.2 if the minimum required types of play components are satisfied. Where two or more required ground level play components are provided, they shall be dispersed throughout the play area and integrated with other play components.
F240.2.1.1 Minimum Number and Types. Where ground level play components are provided, at least one of each type shall be on an accessible route and shall comply with 1008.4.
F240.2.1.2 Additional Number and Types. Where elevated play components are provided, ground level play components shall be provided in accordance with Table F240.2.1.2 and shall comply with 1008.4.
Table F240.2.1.2—Number and Types of Ground Level Play Components Required To Be on Accessible Routes
| Number of elevated play components provided | Minimum number of ground level play components required to be on an accessible route | Minimum number of different types of ground level play components required to be on an accessible route |
|---|---|---|
| 1 | Not applicable | Not applicable. |
| 2 to 4 | 1 | 1. |
| 5 to 7 | 2 | 2. |
| 8 to 10 | 3 | 3. |
| 11 to 13 | 4 | 3. |
| 14 to 16 | 5 | 3. |
| 17 to 19 | 6 | 3. |
| 20 to 22 | 7 | 4. |
| 23 to 25 | 8 | 4. |
| 26 and over | 8, plus 1 for each additional 3, or fraction thereof, over 25 | 5. |
F240.2.2 Elevated Play Components. Where elevated play components are provided, at least 50 percent shall be on an accessible route and shall comply with 1008.4.
F241.1 General. Where provided, saunas and steam rooms shall comply with 612.
F242.1 General. Swimming pools, wading pools, and spas shall comply with F242.
F242.2 Swimming Pools. At least two accessible means of entry shall be provided for swimming pools. Accessible means of entry shall be swimming pool lifts complying with 1009.2; sloped entries complying with 1009.3; transfer walls complying with 1009.4; transfer systems complying with 1009.5; and pool stairs complying with 1009.6. At least one accessible means of entry provided shall comply with 1009.2 or 1009.3.
2. Wave action pools, leisure rivers, sand bottom pools, and other pools where user access is limited to one area shall not be required to provide more than one accessible means of entry provided that the accessible means of entry is a swimming pool lift complying with 1009.2, a sloped entry complying with 1009.3, or a transfer system complying with 1009.5.
3. Catch pools shall not be required to provide an accessible means of entry provided that the catch pool edge is on an accessible route.
F242.3 Wading Pools. At least one accessible means of entry shall be provided for wading pools. Accessible means of entry shall comply with sloped entries complying with 1009.3.
F242.4 Spas. At least one accessible means of entry shall be provided for spas. Accessible means of entry shall comply with swimming pool lifts complying with 1009.2; transfer walls complying with 1009.4; or transfer systems complying with 1009.5.
F243.1 General. Where shooting facilities with firing positions are designed and constructed at a site, at least 5 percent, but no fewer than one, of each type of firing position shall comply with 1010.
F244.1 General. Camping facilities, other than camping facilities on trails, shall comply with F244.
F244.2 Camping Units with Mobility Features. Camping facilities shall provide camping units with mobility features complying with F244.2 in accordance with Table F244.2. Where a camping facility provides different types of camping units, Table F244.2 shall apply to each type of camping unit provided.
Table F244.2—Camping Units With Mobility Features
| Total number of camping units provided in camping facility | Minimum number of camping units with mobility features required |
|---|---|
| 1 | 1. |
| 2 to 25 | 2. |
| 26 to 50 | 3. |
| 51 to 75 | 4. |
| 76 to 100 | 5. |
| 101 to 150 | 7. |
| 151 to 200 | 8. |
| 201 and over | 8, plus 2 percent of the number over 200. |
F244.2.1 Alterations and Additions. Where camping units are altered or added, the requirements of F244.2 shall apply only to the camping units that are altered or added until the number of camping units with mobility features complies with the minimum number required in Table 244.2.
F244.2.2 Dispersion. Camping units required to provide mobility features complying with F244.2 shall provide choices of camping units comparable to, and integrated with, those available to others.
F244.2.3 Elements Within Camping Units with Mobility Features. Elements within camping units required to provide mobility features shall comply with F244.2.3.
F244.2.3.1 Outdoor Constructed Features. Where provided, at least one of each type of outdoor constructed features shall comply with 1011. Where more than one of the same type of outdoor constructed features is provided, at least two of the same type of outdoor constructed features shall comply with 1011.
F244.2.3.2 Parking Spaces. Where provided, parking spaces shall comply with F244.2.3.2.
F244.2.3.2.1 Recreational Vehicles. Where parking spaces are provided for recreational vehicles, at least one parking space shall comply with 1012.2, 1012.4, and 1012.5. Where more than one parking space is provided for recreational vehicles, at least two parking spaces shall comply with 1012.2, 1012.4, and 1012.5.
F244.2.3.2.2 Vehicles Other Than Recreational Vehicles. Where parking spaces are provided for vehicles other than recreational vehicles, at least one parking space shall comply with 1012.3, 1012.4, and 1012.5. Where more than one parking space is provided for a vehicle other than a recreational vehicle, at least two parking spaces shall comply with 1012.3, 1012.4, and 1012.5.
244.2.3.3 Tent Pads and Tent Platforms. Where provided, at least one tent pad and tent platform shall comply with 1013. Where more than one tent pad and tent platform is provided, at least two tent pads and tent platforms shall comply with 1013.
F244.2.3.4 Camp Shelters. Where provided, at least one camp shelter shall comply with 1014. Where more than one camp shelter is provided, at least two camp shelters shall comply with 1014.
F244.3 Outdoor Constructed Features in Common Use and Public Use Areas. Where provided in common use and public use areas that serve camping units with mobility features, at least 20 percent, but not less than one, of each type of outdoor constructed feature provided at each location shall comply with 1011.
F244.4 Pull-up Spaces for Recreational Vehicles at Dump Stations. Where provided, pull-up spaces for recreational vehicles at dump stations shall comply with 1012.2, 1012.4, and 1012.5.
F244.5 Outdoor Recreation Access Routes. Camping facilities shall provide outdoor recreation access routes complying with 1016 in accordance with F244.5.
F244.5.1 Routes Within Camping Units with Mobility Features. At least one outdoor recreation access route shall connect accessible elements, spaces, and facilities provided within camping units with mobility features.
F244.5.2 Routes to and Within Common Use and Public Use Areas. Common use and public use areas serving camping units with mobility features shall provide outdoor recreation access routes in accordance with F244.5.2.
F244.5.2.1 Routes to Common Use and Public Use Areas. At least one outdoor recreation access route shall connect each camping unit with mobility features with common use and public use areas serving the unit.
F244.5.2.2 Routes Within Common Use and Public Use Areas. At least one outdoor recreation access route shall connect accessible elements, spaces, and facilities provided within common use and public use areas serving camping units with mobility features.
F244.5.3 Routes to Adjacent Recreation Facilities. Where a circulation path connects camping facilities and adjacent recreation facilities, at least one outdoor recreation access route shall connect camping units with mobility features to an accessible route serving the adjacent recreation facilities.
F244.5.4 Location. Outdoor recreation access routes required by F244.5.2 and F244.5.3 shall coincide with or be located in the same area as general circulation paths.
F245.1 General. Picnic facilities, other than picnic facilities on trails, shall comply with F245.
F245.2 Picnic Units with Mobility Features. Picnic facilities shall provide picnic units with mobility features in accordance with F245.2.
F245.2.1 Picnic Facilities with Two or Fewer Picnic Units. Where picnic facilities contain two or fewer picnic units, each picnic unit shall provide mobility features complying with F245.2.
F245.2.2 Picnic Facilities with More Than Two Picnic Units. Where picnic facilities contain more than two picnic units, at least 20 percent, but not less than two, of the picnic units shall provide mobility features complying with F245.2.
F245.2.3 Alterations and Additions. Where picnic units are altered or added, the requirements of F245.2 shall apply only to the picnic units that are altered or added until the number of picnic units with mobility features complies with the minimum number required in F245.2.1 or F245.2.2.
F245.2.4 Dispersion. Picnic units required to provide mobility features complying with F245.2 shall provide choices of picnic units comparable to, and integrated with, those available to others.
F245.2.5 Elements Within Picnic Units with Mobility Features. Elements within picnic units required to provide mobility features shall comply with F245.2.5.
F245.2.5.1 Outdoor Constructed Features. Where provided, at least one of each type of outdoor constructed feature shall comply with 1011. Where more than one of the same type of outdoor constructed feature is provided, at least two of the same type of outdoor constructed features shall comply with 1011.
F245.2.5.2 Parking Spaces. Where provided, at least one parking space shall comply with 1012.3, 1012.4, and 1012.5. Where more than one parking space is provided, at least two parking spaces shall comply with 1012.3, 1012.4, and 1012.5.
F245.3 Outdoor Constructed Features in Common Use and Public Use Areas. Where provided in common use and public use areas that serve picnic units with mobility features, at least 20 percent, but not less than one, of each type of outdoor constructed feature provided at each location shall comply with 1011.
F245.4 Outdoor Recreation Access Routes. Picnic facilities shall provide outdoor recreation access routes complying with 1016 in accordance with F245.4.
F245.4.1 Routes Within Picnic Units with Mobility Features. At least one outdoor recreation access route shall connect accessible elements, spaces, and facilities provided within picnic units with mobility features.
F245.4.2 Routes to and Within Common Use and Public Use Areas. Common use and public use areas serving picnic units with mobility features shall provide outdoor recreation access routes in accordance with F245.4.2.
F245.4.2.1 Routes to Common Use and Public Use Areas. At least one outdoor recreation access route shall connect each picnic unit with mobility features with common use and public use areas serving that unit.
F245.4.2.2 Routes Within Common Use and Public Use Areas. At least one outdoor recreation access route shall connect accessible elements, spaces, and facilities provided within common use and public use areas serving picnic units with mobility features.
F245.4.3 Routes to Adjacent Recreation Facilities. Where a circulation path connects picnic facilities and adjacent recreation facilities, at least one outdoor recreation access route shall connect picnic units with mobility features to an accessible route serving the adjacent recreation facilities.
F245.4.4 Location. Outdoor recreation access routes required by F245.4.2 and F245.4.3 shall coincide with or be located in the same area as general circulation paths.
F246.1 General. Viewing areas, other than viewing areas on trails, shall comply with F246.1.
F246.2 Distinct Viewing Locations. Each distinct viewing location within a viewing area shall comply with 1015.
F246.3 Outdoor Constructed Features. Where provided within viewing areas, at least 20 percent, but not less than one, of each type of outdoor constructed feature shall comply with 1011.
F246.4 Outdoor Recreation Access Routes. At least one outdoor recreation access route complying with 1016 shall connect accessible parking spaces or other arrival points serving the viewing area with accessible elements, spaces, and facilities provided within the viewing area.
F247.1 General. Where a trail is designed for use by hikers or pedestrians and directly connects to a trailhead or another trail that substantially meets the requirements in 1017, the trail shall comply with 1017.
F247.2 Existing Trails. Where the original design, function, or purpose of an existing trail is changed and the altered portion of the trail directly connects to a trailhead or another trail that substantially meets the requirements in 1017, the altered portion of the trail shall comply with 1017.
F247.3 Trailheads. Trailheads shall comply with F247.3.
F247.3.1 Outdoor Constructed Features. Where provided within trailheads, at least 20 percent, but not less than one, of each type of outdoor constructed feature shall comply with 1011.
F247.3.2 Outdoor Recreation Access Routes. At least one outdoor recreation access route complying with 1016 shall connect the following:
1. Accessible parking spaces or other arrival points serving the trailhead;
2. Starting point of the trail; and
3. Accessible elements, spaces, and facilities provided within the trailhead.
F247.4 Trail Facilities. Where provided on trails, facilities shall comply with F247.4.
F247.4.1 Camping Facilities. Camping facilities provided on trails shall comply with F244.2 and F244.3.
F247.4.2 Picnic Facilities. Picnic facilities provided on trails shall comply with F245.2 and F245.3.
F247.4.3 Viewing Areas. Viewing areas provided on trails shall comply with F246.2 and F246.3.
F247.4.4 Routes. Routes that connect trails complying with 1017 to camping facilities, picnic facilities, viewing areas, pit toilets, and accessible elements provided within the facilities shall comply with 1017.
F247.5 Outdoor Constructed Features. Where outdoor constructed features are provided on trails, other than within facilities specified in F247.4, at least 20 percent, but not less than one, of each type of outdoor constructed feature at each location shall comply with 1011.
F248.1 General. Beach access routes complying with 1018 shall be provided in accordance with F248.1. Beach access routes shall be permanent or removable.
F248.1.1 Facilities Serving Beaches. Beach access routes shall be provided in a number complying with F248.2 where the entity that administers or manages a beach constructs or alters any of the following facilities to serve the beach:
1. Circulation paths;
2. Parking facilities;
3. Toilet facilities; or
4. Bathing facilities.
F248.1.2 Beach Nourishment. Beach access routes shall be provided in a number complying with F248.2 where the entity that administers or manages a beach undertakes a beach nourishment project.
F248.2 Minimum Number. Where beach access routes are required by F248.1, at least one beach access route shall be provided for each
F248.3 Location. Beach access routes shall coincide with or be located in the same area as pedestrian access points to the beach.
Appendix D to Part 1191—Technical
301.1 Scope. The provisions of Chapter 3 shall apply where required by Chapter 2 or where referenced by a requirement in this document.
302.1 General. Floor and ground surfaces shall be stable, firm, and slip resistant and shall comply with 302.
2. Areas of sport activity shall not be required to comply with 302.
302.2 Carpet. Carpet or carpet tile shall be securely attached and shall have a firm cushion, pad, or backing or no cushion or pad. Carpet or carpet tile shall have a level loop, textured loop, level cut pile, or level cut/uncut pile texture. Pile height shall be
302.3 Openings. Openings in floor or ground surfaces shall not allow passage of a sphere more than
303.1 General. Where changes in level are permitted in floor or ground surfaces, they shall comply with 303.
2. Areas of sport activity shall not be required to comply with 303.
303.2 Vertical. Changes in level of
303.3 Beveled. Changes in level between
303.4 Ramps. Changes in level greater than
304.1 General. Turning space shall comply with 304.
304.2 Floor or Ground Surfaces. Floor or ground surfaces of a turning space shall comply with 302. Changes in level are not permitted.
304.3 Size. Turning space shall comply with 304.3.1 or 304.3.2.
304.3.1 Circular Space. The turning space shall be a space of 60 inches (1525 mm) diameter minimum. The space shall be permitted to include knee and toe clearance complying with 306.
304.3.2 T-Shaped Space. The turning space shall be a T-shaped space within a 60 inch (1525 mm) square minimum with arms and base 36 inches (915 mm) wide minimum. Each arm of the T shall be clear of obstructions 12 inches (305 mm) minimum in each direction and the base shall be clear of obstructions 24 inches (610 mm) minimum. The space shall be permitted to include knee and toe clearance complying with 306 only at the end of either the base or one arm.
304.4 Door Swing. Doors shall be permitted to swing into turning spaces.
305.1 General. Clear floor or ground space shall comply with 305.
305.2 Floor or Ground Surfaces. Floor or ground surfaces of a clear floor or ground space shall comply with 302. Changes in level are not permitted.
305.3 Size. The clear floor or ground space shall be 30 inches (760 mm) minimum by 48 inches (1220 mm) minimum.
305.4 Knee and Toe Clearance. Unless otherwise specified, clear floor or ground space shall be permitted to include knee and toe clearance complying with 306.
305.5 Position. Unless otherwise specified, clear floor or ground space shall be positioned for either forward or parallel approach to an element.
305.6 Approach. One full unobstructed side of the clear floor or ground space shall adjoin an accessible route or adjoin another clear floor or ground space.
305.7 Maneuvering Clearance. Where a clear floor or ground space is located in an alcove or otherwise confined on all or part of three sides, additional maneuvering clearance shall be provided in accordance with 305.7.1 and 305.7.2.
305.7.1 Forward Approach. Alcoves shall be 36 inches (915 mm) wide minimum where the depth exceeds 24 inches (610 mm).
305.7.2 Parallel Approach. Alcoves shall be 60 inches (1525 mm) wide minimum where the depth exceeds 15 inches (380 mm).
306.1 General. Where space beneath an element is included as part of clear floor or ground space or turning space, the space shall comply with 306. Additional space shall not be prohibited beneath an element but shall not be considered as part of the clear floor or ground space or turning space.
306.2 Toe Clearance.
306.2.1 General. Space under an element between the finish floor or ground and 9 inches (230 mm) above the finish floor or ground shall be considered toe clearance and shall comply with 306.2.
306.2.2 Maximum Depth. Toe clearance shall extend 25 inches (635 mm) maximum under an element.
306.2.3 Minimum Required Depth. Where toe clearance is required at an element as part of a clear floor space, the toe clearance shall extend 17 inches (430 mm) minimum under the element.
306.2.4 Additional Clearance. Space extending greater than 6 inches (150 mm) beyond the available knee clearance at 9 inches (230 mm) above the finish floor or ground shall not be considered toe clearance.
306.2.5 Width. Toe clearance shall be 30 inches (760 mm) wide minimum.
306.3 Knee Clearance.
306.3.1 General. Space under an element between 9 inches (230 mm) and 27 inches (685 mm) above the finish floor or ground shall be considered knee clearance and shall comply with 306.3.
306.3.2 Maximum Depth. Knee clearance shall extend 25 inches (635 mm) maximum under an element at 9 inches (230 mm) above the finish floor or ground.
306.3.3 Minimum Required Depth. Where knee clearance is required under an element as part of a clear floor space, the knee clearance shall be 11 inches (280 mm) deep minimum at 9 inches (230 mm) above the finish floor or ground, and 8 inches (205 mm) deep minimum at 27 inches (685 mm) above the finish floor or ground.
306.3.4 Clearance Reduction. Between 9 inches (230 mm) and 27 inches (685 mm) above the finish floor or ground, the knee clearance shall be permitted to reduce at a rate of 1 inch (25 mm) in depth for each 6 inches (150 mm) in height.
306.3.5 Width. Knee clearance shall be 30 inches (760 mm) wide minimum.
307.1 General. Protruding objects shall comply with 307.
307.2 Protrusion Limits. Objects with leading edges more than 27 inches (685 mm) and not more than 80 inches (2030 mm) above the finish floor or ground shall protrude 4 inches (100 mm) maximum horizontally into the circulation path.
307.3 Post-Mounted Objects. Freestanding objects mounted on posts or pylons shall overhang circulation paths 12 inches (305 mm) maximum when located 27 inches (685 mm) minimum and 80 inches (2030 mm) maximum above the finish floor or ground. Where a sign or other obstruction is mounted between posts or pylons and the clear distance between the posts or pylons is greater than 12 inches (305 mm), the lowest edge of such sign or obstruction shall be 27 inches (685 mm) maximum or 80 inches (2030 mm) minimum above the finish floor or ground.
307.4 Vertical Clearance. Vertical clearance shall be 80 inches (2030 mm) high minimum. Guardrails or other barriers shall be provided where the vertical clearance is less than 80 inches (2030 mm) high. The leading edge of such guardrail or barrier shall be located 27 inches (685 mm) maximum above the finish floor or ground.
307.5 Required Clear Width. Protruding objects shall not reduce the clear width required for accessible routes.
308.1 General. Reach ranges shall comply with 308.
308.2 Forward Reach.
308.2.1 Unobstructed. Where a forward reach is unobstructed, the high forward reach shall be 48 inches (1220 mm) maximum and the low forward reach shall be 15 inches (380 mm) minimum above the finish floor or ground.
308.2.2 Obstructed High Reach. Where a high forward reach is over an obstruction, the clear floor space shall extend beneath the element for a distance not less than the required reach depth over the obstruction. The high forward reach shall be 48 inches (1220 mm) maximum where the reach depth is 20 inches (510 mm) maximum. Where the reach depth exceeds 20 inches (510 mm), the high forward reach shall be 44 inches (1120 mm) maximum and the reach depth shall be 25 inches (635 mm) maximum.
308.3 Side Reach.
308.3.1 Unobstructed. Where a clear floor or ground space allows a parallel approach to an element and the side reach is unobstructed, the high side reach shall be 48 inches (1220 mm) maximum and the low side reach shall be 15 inches (380 mm) minimum above the finish floor or ground.
2. Operable parts of fuel dispensers shall be permitted to be 54 inches (1370 mm) maximum measured from the surface of the vehicular way where fuel dispensers are installed on existing curbs.
308.3.2 Obstructed High Reach. Where a clear floor or ground space allows a parallel approach to an element and the high side reach is over an obstruction, the height of the obstruction shall be 34 inches (865 mm) maximum and the depth of the obstruction shall be 24 inches (610 mm) maximum. The high side reach shall be 48 inches (1220 mm) maximum for a reach depth of 10 inches (255 mm) maximum. Where the reach depth exceeds 10 inches (255 mm), the high side reach shall be 46 inches (1170 mm) maximum for a reach depth of 24 inches (610 mm) maximum.
2. Operable parts of fuel dispensers shall be permitted to be 54 inches (1370 mm) maximum measured from the surface of the vehicular way where fuel dispensers are installed on existing curbs.
309.1 General. Operable parts shall comply with 309.
309.2 Clear Floor Space. A clear floor or ground space complying with 305 shall be provided.
309.3 Height. Operable parts shall be placed within one or more of the reach ranges specified in 308.
309.4 Operation. Operable parts shall be operable with one hand and shall not require tight grasping, pinching, or twisting of the wrist. The force required to activate operable parts shall be 5 pounds (22.2 N) maximum.
401.1 Scope. The provisions of Chapter 4 shall apply where required by Chapter 2 or where referenced by a requirement in this document.
402.1 General. Accessible routes shall comply with 402.
402.2 Components. Accessible routes shall consist of one or more of the following components: walking surfaces with a running slope not steeper than 1:20, doorways, ramps, curb ramps excluding the flared sides, elevators, and platform lifts. All components of an accessible route shall comply with the applicable requirements of Chapter 4.
403.1 General. Walking surfaces that are a part of an accessible route shall comply with 403.
403.2 Floor or Ground Surface. Floor or ground surfaces shall comply with 302.
403.3 Slope. The running slope of walking surfaces shall not be steeper than 1:20. The cross slope of walking surfaces shall not be steeper than 1:48.
403.4 Changes in Level. Changes in level shall comply with 303.
403.5 Clearances. Walking surfaces shall provide clearances complying with 403.5.
403.5.1 Clear Width. Except as provided in 403.5.2 and 403.5.3, the clear width of walking surfaces shall be 36 inches (915 mm) minimum.
403.5.2 Clear Width at Turn. Where the accessible route makes a 180 degree turn around an element which is less than 48 inches (1220 mm) wide, clear width shall be 42 inches (1065 mm) minimum approaching the turn, 48 inches (1220 mm) minimum at the turn and 42 inches (1065 mm) minimum leaving the turn.
403.5.3 Passing Spaces. An accessible route with a clear width less than 60 inches (1525 mm) shall provide passing spaces at intervals of 200 feet (61 m) maximum. Passing spaces shall be either: a space 60 inches (1525 mm) minimum by 60 inches (1525 mm) minimum; or, an intersection of two walking surfaces providing a T-shaped space complying with 304.3.2 where the base and arms of the T-shaped space extend 48 inches (1220 mm) minimum beyond the intersection.
403.6 Handrails. Where handrails are provided along walking surfaces with running slopes not steeper than 1:20 they shall comply with 505.
404.1 General. Doors, doorways, and gates that are part of an accessible route shall comply with 404.
404.2 Manual Doors, Doorways, and Manual Gates. Manual doors and doorways and manual gates intended for user passage shall comply with 404.2.
404.2.1 Revolving Doors, Gates, and Turnstiles. Revolving doors, revolving gates, and turnstiles shall not be part of an accessible route.
404.2.2 Double-Leaf Doors and Gates. At least one of the active leaves of doorways with two leaves shall comply with 404.2.3 and 404.2.4.
404.2.3 Clear Width. Door openings shall provide a clear width of 32 inches (815 mm) minimum. Clear openings of doorways with swinging doors shall be measured between the face of the door and the stop, with the door open 90 degrees. Openings more than 24 inches (610 mm) deep shall provide a clear opening of 36 inches (915 mm) minimum. There shall be no projections into the required clear opening width lower than 34 inches (865 mm) above the finish floor or ground. Projections into the clear opening width between 34 inches (865 mm) and 80 inches (2030 mm) above the finish floor or ground shall not exceed 4 inches (100 mm).
2. Door closers and door stops shall be permitted to be 78 inches (1980 mm) minimum above the finish floor or ground.
404.2.4 Maneuvering Clearances. Minimum maneuvering clearances at doors and gates shall comply with 404.2.4. Maneuvering clearances shall extend the full width of the doorway and the required latch side or hinge side clearance.
404.2.4.1 Swinging Doors and Gates. Swinging doors and gates shall have maneuvering clearances complying with Table 404.2.4.1.
Table 404.2.4.1—Maneuvering Clearances at Manual Swinging Doors and Gates
| Type of use | Minimum maneuvering clearance | ||
|---|---|---|---|
| Approach direction | Door or gate side | Perpendicular to doorway | Parallel to doorway (beyond latch side unless noted) |
| From front | Pull | 60 inches (1525 mm) | 18 inches (455 mm). |
| From front | Push | 48 inches (1220 mm) | 0 inches (0 mm). 1 |
| From hinge side | Pull | 60 inches (1525 mm) | 36 inches (915 mm). |
| From hinge side | Pull | 54 inches (1370 mm) | 42 inches (1065 mm). |
| From hinge side | Push | 42 inches (1065 mm) 2 | 22 inches (560 mm). 3 |
| From latch side | Pull | 48 inches (1220 mm) 4 | 24 inches (610 mm). |
| From latch side | Push | 42 inches (1065 mm) 4 | 24 inches (610 mm). |
1 Add 12 inches (305 mm) if closer and latch are provided.
2 Add 6 inches (150 mm) if closer and latch are provided.
3 Beyond hinge side.
4 Add 6 inches (150 mm) if closer is provided.
404.2.4.2 Doorways without Doors or Gates, Sliding Doors, and Folding Doors. Doorways less than 36 inches (915 mm) wide without doors or gates, sliding doors, or folding doors shall have maneuvering clearances complying with Table 404.2.4.2.
Table 404.2.4.2—Maneuvering Clearances at Doorways Without Doors or Gates, Manual Sliding Doors, and Manual Folding Doors
| Approach direction | Minimum maneuvering clearance | |
|---|---|---|
| Perpendicular to doorway | Parallel to doorway (beyond stop/latch side unless noted) | |
| From Front | 48 inches (1220 mm) | 0 inches (0 mm). |
| From side 1 | 42 inches (1065 mm) | 0 inches (0 mm). |
| From pocket/hinge side | 42 inches (1065 mm) | 22 inches (560 mm). 2 |
| From stop/latch side | 42 inches (1065 mm) | 24 inches (610 mm). |
1 Doorway with no door only.
2 Beyond pocket/hinge side.
404.2.4.3 Recessed Doors and Gates. Maneuvering clearances for forward approach shall be provided when any obstruction within 18 inches (455 mm) of the latch side of a doorway projects more than 8 inches (205 mm) beyond the face of the door, measured perpendicular to the face of the door or gate.
404.2.4.4 Floor or Ground Surface. Floor or ground surface within required maneuvering clearances shall comply with 302. Changes in level are not permitted.
2. Changes in level at thresholds complying with 404.2.5 shall be permitted.
404.2.5 Thresholds. Thresholds, if provided at doorways, shall be
404.2.6 Doors in Series and Gates in Series. The distance between two hinged or pivoted doors in series and gates in series shall be 48 inches (1220 mm) minimum plus the width of doors or gates swinging into the space.
404.2.7 Door and Gate Hardware. Handles, pulls, latches, locks, and other operable parts on doors and gates shall comply with 309.4. Operable parts of such hardware shall be 34 inches (865 mm) minimum and 48 inches (1220 mm) maximum above the finish floor or ground. Where sliding doors are in the fully open position, operating hardware shall be exposed and usable from both sides.
2. Access gates in barrier walls and fences protecting pools, spas, and hot tubs shall be permitted to have operable parts of the release of latch on self-latching devices at 54 inches (1370 mm) maximum above the finish floor or ground provided the self-latching devices are not also self-locking devices and operated by means of a key, electronic opener, or integral combination lock.
404.2.8 Closing Speed. Door and gate closing speed shall comply with 404.2.8.
404.2.8.1 Door Closers and Gate Closers. Door closers and gate closers shall be adjusted so that from an open position of 90 degrees, the time required to move the door to a position of 12 degrees from the latch is 5 seconds minimum.
404.2.8.2 Spring Hinges. Door and gate spring hinges shall be adjusted so that from the open position of 70 degrees, the door or gate shall move to the closed position in 1.5 seconds minimum.
404.2.9 Door and Gate Opening Force. Fire doors shall have a minimum opening force allowable by the appropriate administrative authority. The force for pushing or pulling open a door or gate other than fire doors shall be as follows:
1. Interior hinged doors and gates: 5 pounds (22.2 N) maximum.
2. Sliding or folding doors: 5 pounds (22.2 N) maximum.
These forces do not apply to the force required to retract latch bolts or disengage other devices that hold the door or gate in a closed position.
404.2.10 Door and Gate Surfaces. Swinging door and gate surfaces within 10 inches (255 mm) of the finish floor or ground measured vertically shall have a smooth surface on the push side extending the full width of the door or gate. Parts creating horizontal or vertical joints in these surfaces shall be within
2. Tempered glass doors without stiles and having a bottom rail or shoe with the top leading edge tapered at 60 degrees minimum from the horizontal shall not be required to meet the 10 inch (255 mm) bottom smooth surface height requirement.
3. Doors and gates that do not extend to within 10 inches (255 mm) of the finish floor or ground shall not be required to comply with 404.2.10.
4. Existing doors and gates without smooth surfaces within 10 inches (255 mm) of the finish floor or ground shall not be required to provide smooth surfaces complying with 404.2.10 provided that if added kick plates are installed, cavities created by such kick plates are capped.
404.2.11 Vision Lights. Doors, gates, and side lights adjacent to doors or gates, containing one or more glazing panels that permit viewing through the panels shall have the bottom of at least one glazed panel located 43 inches (1090 mm) maximum above the finish floor.
404.3 Automatic and Power-Assisted Doors and Gates. Automatic doors and automatic gates shall comply with 404.3. Full-powered automatic doors shall comply with ANSI/BHMA A156.10 (incorporated by reference, see “Referenced Standards” in Chapter 1). Low-energy and power-assisted doors shall comply with ANSI/BHMA A156.19 (1997 or 2002 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1).
404.3.1 Clear Width. Doorways shall provide a clear opening of 32 inches (815 mm) minimum in power-on and power-off mode. The minimum clear width for automatic door systems in a doorway shall be based on the clear opening provided by all leaves in the open position.
404.3.2 Maneuvering Clearance. Clearances at power-assisted doors and gates shall comply with 404.2.4. Clearances at automatic doors and gates without standby power and serving an accessible means of egress shall comply with 404.2.4.
404.3.3 Thresholds. Thresholds and changes in level at doorways shall comply with 404.2.5.
404.3.4 Doors in Series and Gates in Series. Doors in series and gates in series shall comply with 404.2.6.
404.3.5 Controls. Manually operated controls shall comply with 309. The clear floor space adjacent to the control shall be located beyond the arc of the door swing.
404.3.6 Break Out Opening. Where doors and gates without standby power are a part of a means of egress, the clear break out opening at swinging or sliding doors and gates shall be 32 inches (815 mm) minimum when operated in emergency mode.
404.3.7 Revolving Doors, Revolving Gates, and Turnstiles. Revolving doors, revolving gates, and turnstiles shall not be part of an accessible route.
405.1 General. Ramps on accessible routes shall comply with 405.
405.2 Slope. Ramp runs shall have a running slope not steeper than 1:12.
2. For emergency transportable housing units installed on private sites provided by the occupant of the unit, where existing physical or site constraints prohibit the installation of an entry ramp complying with 405.2, ramps shall be permitted to provide a single ramp run with a slope no steeper than 1:10 provided that the maximum rise of all ramp runs serving the unit entrance is not greater than 36 inches (915 mm).
Table 405.2—Maximum Ramp Slope and Rise for Existing Sites, Buildings, and Facilities
| Slope 1 | Maximum rise |
|---|---|
| Steeper than 1:10 but not steeper than 1:8 | 3 inches (75 mm). |
| Steeper than 1:12 but not steeper than 1:10 | 6 inches (150 mm). |
1 A slope steeper than 1:8 is prohibited.
405.3 Cross Slope. Cross slope of ramp runs shall not be steeper than 1:48.
405.4 Floor or Ground Surfaces. Floor or ground surfaces of ramp runs shall comply with 302. Changes in level other than the running slope and cross slope are not permitted on ramp runs.
405.5 Clear Width. The clear width of a ramp run and, where handrails are provided, the clear width between handrails shall be 36 inches (915 mm) minimum.
405.6 Rise. The rise for any ramp run shall be 30 inches (760 mm) maximum.
405.7 Landings. Ramps shall have landings at the top and the bottom of each ramp run. Landings shall comply with 405.7.
405.7.1 Slope. Landings shall comply with 302. Changes in level are not permitted.
405.7.2 Width. The landing clear width shall be at least as wide as the widest ramp run leading to the landing.
405.7.3 Length. The landing clear length shall be 60 inches (1525 mm) long minimum.
405.7.4 Change in Direction. Ramps that change direction between runs at landings shall have a clear landing 60 inches (1525 mm) minimum by 60 inches (1525 mm) minimum.
405.7.5 Doorways. Where doorways are located adjacent to a ramp landing, maneuvering clearances required by 404.2.4 and 404.3.2 shall be permitted to overlap the required landing area.
405.8 Handrails. Ramp runs with a rise greater than 6 inches (150 mm) shall have handrails complying with 505.
405.9 Edge Protection. Edge protection complying with 405.9.1 or 405.9.2 shall be provided on each side of ramp runs and at each side of ramp landings.
2. Edge protection shall not be required on the sides of ramp landings serving an adjoining ramp run or stairway.
3. Edge protection shall not be required on the sides of ramp landings having a vertical drop-off of
405.9.1 Extended Floor or Ground Surface. The floor or ground surface of the ramp run or landing shall extend 12 inches (305 mm) minimum beyond the inside face of a handrail complying with 505.
405.9.2 Curb or Barrier. A curb or barrier shall be provided that prevents the passage of a 4 inch (100 mm) diameter sphere, where any portion of the sphere is within 4 inches (100 mm) of the finish floor or ground surface.
405.10 Wet Conditions. Landings subject to wet conditions shall be designed to prevent the accumulation of water.
406.1 General. Curb ramps on accessible routes shall comply with 406, 405.2 through 405.5, and 405.10.
406.2 Counter Slope. Counter slopes of adjoining gutters and road surfaces immediately adjacent to the curb ramp shall not be steeper than 1:20. The adjacent surfaces at transitions at curb ramps to walks, gutters, and streets shall be at the same level.
406.3 Sides of Curb Ramps. Where provided, curb ramp flares shall not be steeper than 1:10.
406.4 Landings. Landings shall be provided at the tops of curb ramps. The landing clear length shall be 36 inches (915 mm) minimum. The landing clear width shall be at least as wide as the curb ramp, excluding flared sides, leading to the landing.
406.5 Location. Curb ramps and the flared sides of curb ramps shall be located so that they do not project into vehicular traffic lanes, parking spaces, or parking access aisles. Curb ramps at marked crossings shall be wholly contained within the markings, excluding any flared sides.
406.6 Diagonal Curb Ramps. Diagonal or corner type curb ramps with returned curbs or other well-defined edges shall have the edges parallel to the direction of pedestrian flow. The bottom of diagonal curb ramps shall have a clear space 48 inches (1220 mm) minimum outside active traffic lanes of the roadway. Diagonal curb ramps provided at marked crossings shall provide the 48 inches (1220 mm) minimum clear space within the markings. Diagonal curb ramps with flared sides shall have a segment of curb 24 inches (610 mm) long minimum located on each side of the curb ramp and within the marked crossing.
406.7 Islands. Raised islands in crossings shall be cut through level with the street or have curb ramps at both sides. Each curb ramp shall have a level area 48 inches (1220 mm) long minimum by 36 inches (915 mm) wide minimum at the top of the curb ramp in the part of the island intersected by the crossings. Each 48 inch (1220 mm) minimum by 36 inch (915 mm) minimum area shall be oriented so that the 48 inch (1220 mm) minimum length is in the direction of the running slope of the curb ramp it serves. The 48 inch (1220 mm) minimum by 36 inch (915 mm) minimum areas and the accessible route shall be permitted to overlap.
407.1 General. Elevators shall comply with 407 and with ASME A17.1 (incorporated by reference, see “Referenced Standards” in Chapter 1). They shall be passenger elevators as classified by ASME A17.1. Elevator operation shall be automatic.
407.2 Elevator Landing Requirements. Elevator landings shall comply with 407.2.
407.2.1 Call Controls. Where elevator call buttons or keypads are provided, they shall comply with 407.2.1 and 309.4. Call buttons shall be raised or flush.
407.2.1.1 Height. Call buttons and keypads shall be located within one of the reach ranges specified in 308, measured to the centerline of the highest operable part.
407.2.1.2 Size. Call buttons shall be
407.2.1.3 Clear Floor or Ground Space. A clear floor or ground space complying with 305 shall be provided at call controls.
407.2.1.4 Location. The call button that designates the up direction shall be located above the call button that designates the down direction.
407.2.1.5 Signals. Call buttons shall have visible signals to indicate when each call is registered and when each call is answered.
2. Existing elevators shall not be required to comply with 407.2.1.5.
407.2.1.6 Keypads. Where keypads are provided, keypads shall be in a standard telephone keypad arrangement and shall comply with 407.4.7.2.
407.2.2 Hall Signals. Hall signals, including in-car signals, shall comply with 407.2.2.
407.2.2.1 Visible and Audible Signals. A visible and audible signal shall be provided at each hoistway entrance to indicate which car is answering a call and the car’s direction of travel. Where in-car signals are provided, they shall be visible from the floor area adjacent to the hall call buttons.
2. In existing elevators, a signal indicating the direction of car travel shall not be required.
407.2.2.2 Visible Signals. Visible signal fixtures shall be centered at 72 inches (1830 mm) minimum above the finish floor or ground. The visible signal elements shall be 2
2. Existing elevators shall not be required to comply with 407.2.2.2.
407.2.2.3 Audible Signals. Audible signals shall sound once for the up direction and twice for the down direction, or shall have verbal annunciators that indicate the direction of elevator car travel. Audible signals shall have a frequency of 1500 Hz maximum. Verbal annunciators shall have a frequency of 300 Hz minimum and 3000 Hz maximum. The audible signal and verbal annunciator shall be 10 dB minimum above ambient, but shall not exceed 80 dB, measured at the hall call button.
2. Existing elevators shall not be required to comply with the requirements for frequency and dB range of audible signals.
407.2.2.4 Differentiation. Each destination-oriented elevator in a bank of elevators shall have audible and visible means for differentiation.
407.2.3 Hoistway Signs. Signs at elevator hoistways shall comply with 407.2.3.
407.2.3.1 Floor Designation. Floor designations complying with 703.2 and 703.4.1 shall be provided on both jambs of elevator hoistway entrances. Floor designations shall be provided in both tactile characters and braille. Tactile characters shall be 2 inches (51 mm) high minimum. A tactile star shall be provided on both jambs at the main entry level.
407.2.3.2 Car Designations. Destination-oriented elevators shall provide tactile car identification complying with 703.2 on both jambs of the hoistway immediately below the floor designation. Car designations shall be provided in both tactile characters and braille. Tactile characters shall be 2 inches (51 mm) high minimum.
407.3 Elevator Door Requirements. Hoistway and car doors shall comply with 407.3.
407.3.1 Type. Elevator doors shall be the horizontal sliding type. Car gates shall be prohibited.
407.3.2 Operation. Elevator hoistway and car doors shall open and close automatically.
407.3.3 Reopening Device. Elevator doors shall be provided with a reopening device complying with 407.3.3 that shall stop and reopen a car door and hoistway door automatically if the door becomes obstructed by an object or person.
407.3.3.1 Height. The device shall be activated by sensing an obstruction passing through the opening at 5 inches (125 mm) nominal and 29 inches (735 mm) nominal above the finish floor.
407.3.3.2 Contact. The device shall not require physical contact to be activated, although contact is permitted to occur before the door reverses.
407.3.3.3 Duration. Door reopening devices shall remain effective for 20 seconds minimum.
407.3.4 Door and Signal Timing. The minimum acceptable time from notification that a car is answering a call or notification of the car assigned at the means for the entry of destination information until the doors of that car start to close shall be calculated from the following equation: T = D/(1.5 ft/s) or T = D/(455 mm/s) = 5 seconds minimum where T equals the total time in seconds and D equals the distance (in feet or millimeters) from the point in the lobby or corridor 60 inches (1525 mm) directly in front of the farthest call button controlling that car to the centerline of its hoistway door.
2. Destination-oriented elevators shall not be required to comply with 407.3.4.
407.3.5 Door Delay. Elevator doors shall remain fully open in response to a car call for 3 seconds minimum.
407.3.6 Width. The width of elevator doors shall comply with Table 407.4.1.
407.4 Elevator Car Requirements. Elevator cars shall comply with 407.4.
407.4.1 Car Dimensions. Inside dimensions of elevator cars and clear width of elevator doors shall comply with Table 407.4.1.
Table 407.4.1—Elevator Car Dimensions
| Door location | Minimum dimensions | |||
|---|---|---|---|---|
| Door clear width | Inside car, side to side | Inside car, back wall to front return | Inside car, back wall to inside face of door | |
| Centered | 42 inches (1065 mm) | 80 inches (2030 mm) | 51 inches (1295 mm) | 54 inches (1370 mm). |
| Side (off-centered) | 36 inches (915 mm) 1 | 68 inches (1725 mm) | 51 inches (1295 mm) | 54 inches (1370 mm). |
| Any | 36 inches (915 mm) 1 | 54 inches (1370 mm) | 80 inches (2030 mm) | 80 inches (2030 mm). |
| Any | 36 inches (915 mm) 1 | 60 inches (1525 mm) 2 | 60 inches (1525 mm) 2 | 60 inches (1525 mm). 2 |
1 A tolerance of minus
2 Other car configurations that provide a turning space complying with 304 with the door closed shall be permitted.
407.4.2 Floor Surfaces. Floor surfaces in elevator cars shall comply with 302 and 303.
407.4.3 Platform to Hoistway Clearance. The clearance between the car platform sill and the edge of any hoistway landing shall be 1
407.4.4 Leveling. Each car shall be equipped with a self-leveling feature that will automatically bring and maintain the car at floor landings within a tolerance of
407.4.5 Illumination. The level of illumination at the car controls, platform, car threshold and car landing sill shall be 5 foot candles (54 lux) minimum.
407.4.6 Elevator Car Controls. Where provided, elevator car controls shall comply with 407.4.6 and 309.4.
407.4.6.1 Location. Controls shall be located within one of the reach ranges specified in 308.
2. In existing elevators, car control buttons with floor designations shall be permitted to be located 54 inches (1370 mm) maximum above the finish floor where a parallel approach is provided.
407.4.6.2 Buttons. Car control buttons with floor designations shall comply with 407.4.6.2 and shall be raised or flush.
407.4.6.2.1 Size. Buttons shall be
407.4.6.2.2 Arrangement. Buttons shall be arranged with numbers in ascending order. When two or more columns of buttons are provided they shall read from left to right.
407.4.6.3 Keypads. Car control keypads shall be in a standard telephone keypad arrangement and shall comply with 407.4.7.2.
407.4.6.4 Emergency Controls. Emergency controls shall comply with 407.4.6.4.
407.4.6.4.1 Height. Emergency control buttons shall have their centerlines 35 inches (890 mm) minimum above the finish floor.
407.4.6.4.2 Location. Emergency controls, including the emergency alarm, shall be grouped at the bottom of the panel.
407.4.7 Designations and Indicators of Car Controls. Designations and indicators of car controls shall comply with 407.4.7.
407.4.7.1 Buttons. Car control buttons shall comply with 407.4.7.1.
407.4.7.1.1 Type. Control buttons shall be identified by tactile characters complying with 703.2.
407.4.7.1.2 Location. Raised character and braille designations shall be placed immediately to the left of the control button to which the designations apply.
407.4.7.1.3 Symbols. The control button for the emergency stop, alarm, door open, door close, main entry floor, and phone shall be identified with tactile symbols as shown in Figure 407.4.7.1.3 at the end of this document.
407.4.7.1.4 Visible Indicators. Buttons with floor designations shall be provided with visible indicators to show that a call has been registered. The visible indication shall extinguish when the car arrives at the designated floor.
407.4.7.2 Keypads. Keypads shall be identified by characters complying with 703.5 and shall be centered on the corresponding keypad button. The number five key shall have a single raised dot. The dot shall be 0.118 inch (3 mm) to 0.120 inch (3.05 mm) base diameter and in other aspects comply with Table 703.3.1.
407.4.8 Car Position Indicators. Audible and visible car position indicators shall be provided in elevator cars.
407.4.8.1 Visible Indicators. Visible indicators shall comply with 407.4.8.1.
407.4.8.1.1 Size. Characters shall be
407.4.8.1.2 Location. Indicators shall be located above the car control panel or above the door.
407.4.8.1.3 Floor Arrival. As the car passes a floor and when a car stops at a floor served by the elevator, the corresponding character shall illuminate.
407.4.8.1.4 Destination Indicator. In destination-oriented elevators, a display shall be provided in the car with visible indicators to show car destinations.
407.4.8.2 Audible Indicators. Audible indicators shall comply with 407.4.8.2.
407.4.8.2.1 Signal Type. The signal shall be an automatic verbal annunciator which announces the floor at which the car is about to stop.
407.4.8.2.2 Signal Level. The verbal annunciator shall be 10 dB minimum above ambient, but shall not exceed 80 dB, measured at the annunciator.
407.4.8.2.3 Frequency. The verbal annunciator shall have a frequency of 300 Hz minimum to 3000 Hz maximum.
407.4.9 Emergency Communication. Emergency two-way communication systems shall comply with 308. Tactile symbols and characters shall be provided adjacent to the device and shall comply with 703.2.
408.2 Elevator Landings. Landings serving limited-use/limited-application elevators shall comply with 408.2.
408.2.1 Call Buttons. Elevator call buttons and keypads shall comply with 407.2.1.
408.2.2 Hall Signals. Hall signals shall comply with 407.2.2.
408.2.3 Hoistway Signs. Signs at elevator hoistways shall comply with 407.2.3.1.
408.3 Elevator Doors. Elevator hoistway doors shall comply with 408.3.
408.3.1 Sliding Doors. Sliding hoistway and car doors shall comply with 407.3.1 through 407.3.3 and 408.4.1.
408.3.2 Swinging Doors. Swinging hoistway doors shall open and close automatically and shall comply with 404, 407.3.2 and 408.3.2.
408.3.2.1 Power Operation. Swinging doors shall be power-operated and shall comply with ANSI/BHMA A156.19 (1997 or 2002 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1).
408.3.2.2 Duration. Power-operated swinging doors shall remain open for 20 seconds minimum when activated.
408.4 Elevator Cars. Elevator cars shall comply with 408.4.
408.4.1 Car Dimensions and Doors. Elevator cars shall provide a clear width 42 inches (1065 mm) minimum and a clear depth 54 inches (1370 mm) minimum. Car doors shall be positioned at the narrow ends of cars and shall provide 32 inches (815 mm) minimum clear width.
2. Existing elevator cars shall be permitted to provide a clear width 36 inches (915 mm) minimum, clear depth 54 inches (1370 mm) minimum, and a net clear platform area 15 square feet (1.4 m
408.4.2 Floor Surfaces. Floor surfaces in elevator cars shall comply with 302 and 303.
408.4.3 Platform to Hoistway Clearance. The platform to hoistway clearance shall comply with 407.4.3.
408.4.4 Leveling. Elevator car leveling shall comply with 407.4.4.
408.4.5 Illumination. Elevator car illumination shall comply with 407.4.5.
408.4.6 Car Controls. Elevator car controls shall comply with 407.4.6. Control panels shall be centered on a side wall.
408.4.7 Designations and Indicators of Car Controls. Designations and indicators of car controls shall comply with 407.4.7.
408.4.8 Emergency Communications. Car emergency signaling devices complying with 407.4.9 shall be provided.
409.1 General. Private residence elevators that are provided within a residential dwelling unit required to provide mobility features complying with 809.2 shall comply with 409 and with ASME A17.1 (incorporated by reference, see “Referenced Standards” in Chapter 1). They shall be passenger elevators as classified by ASME A17.1. Elevator operation shall be automatic.
409.2 Call Buttons. Call buttons shall be
409.3 Elevator Doors. Hoistway doors, car doors, and car gates shall comply with 409.3 and 404.
409.3.1 Power Operation. Elevator car and hoistway doors and gates shall be power operated and shall comply with ANSI/BHMA A156.19 (1997 or 2002 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1). Power operated doors and gates shall remain open for 20 seconds minimum when activated.
409.3.2 Location. Elevator car doors or gates shall be positioned at the narrow end of the clear floor spaces required by 409.4.1.
409.4 Elevator Cars. Private residence elevator cars shall comply with 409.4.
409.4.1 Inside Dimensions of Elevator Cars. Elevator cars shall provide a clear floor space of 36 inches (915 mm) minimum by 48 inches (1220 mm) minimum and shall comply with 305.
409.4.2 Floor Surfaces. Floor surfaces in elevator cars shall comply with 302 and 303.
409.4.3 Platform to Hoistway Clearance. The clearance between the car platform and the edge of any landing sill shall be 1
409.4.4 Leveling. Each car shall automatically stop at a floor landing within a tolerance of
409.4.5 Illumination Levels. Elevator car illumination shall comply with 407.4.5.
409.4.6 Car Controls. Elevator car control buttons shall comply with 409.4.6, 309.3, 309.4, and shall be raised or flush.
409.4.6.1 Size. Control buttons shall be
409.4.6.2 Location. Control panels shall be on a side wall, 12 inches (305 mm) minimum from any adjacent wall.
409.4.7 Emergency Communications. Emergency two-way communication systems shall comply with 409.4.7.
409.4.7.1 Type. A telephone and emergency signal device shall be provided in the car.
409.4.7.2 Operable Parts. The telephone and emergency signaling device shall comply with 309.3 and 309.4.
409.4.7.3 Compartment. If the telephone or device is in a closed compartment, the compartment door hardware shall comply with 309.
409.4.7.4 Cord. The telephone cord shall be 29 inches (735 mm) long minimum.
410.1 General. Platform lifts shall comply with ASME A18.1 (1999 edition or 2003 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1). Platform lifts shall not be attendant operated and shall provide unassisted entry and exit from the lift.
410.2 Floor Surfaces. Floor surfaces in platform lifts shall comply with 302 and 303.
410.3 Clear Floor Space. Clear floor space in platform lifts shall comply with 305.
410.4 Platform to Runway Clearance. The clearance between the platform sill and the edge of any runway landing shall be 1
410.5 Operable Parts. Controls for platform lifts shall comply with 309.
410.6 Doors and Gates. Platform lifts shall have low-energy power operated doors or gates complying with 404.3. Doors shall remain open for 20 seconds minimum. End doors and gates shall provide a clear width 32 inches (815 mm) minimum. Side doors and gates shall provide a clear width 42 inches (1065 mm) minimum.
501.1 Scope. The provisions of Chapter 5 shall apply where required by Chapter 2 or where referenced by a requirement in this document.
502.1 General. Car and van parking spaces shall comply with 502. Where parking spaces are marked with lines, width measurements of parking spaces and access aisles shall be made from the centerline of the markings.
502.2 Vehicle Spaces. Car parking spaces shall be 96 inches (2440 mm) wide minimum and van parking spaces shall be 132 inches (3350 mm) wide minimum, shall be marked to define the width, and shall have an adjacent access aisle complying with 502.3.
502.3 Access Aisle. Access aisles serving parking spaces shall comply with 502.3. Access aisles shall adjoin an accessible route. Two parking spaces shall be permitted to share a common access aisle.
502.3.1 Width. Access aisles serving car and van parking spaces shall be 60 inches (1525 mm) wide minimum.
502.3.2 Length. Access aisles shall extend the full length of the parking spaces they serve.
502.3.3 Marking. Access aisles shall be marked so as to discourage parking in them.
502.3.4 Location. Access aisles shall not overlap the vehicular way. Access aisles shall be permitted to be placed on either side of the parking space except for angled van parking spaces which shall have access aisles located on the passenger side of the parking spaces.
502.4 Floor or Ground Surfaces. Parking spaces and access aisles serving them shall comply with 302. Access aisles shall be at the same level as the parking spaces they serve. Changes in level are not permitted.
502.5 Vertical Clearance. Parking spaces for vans and access aisles and vehicular routes serving them shall provide a vertical clearance of 98 inches (2490 mm) minimum.
502.6 Identification. Parking space identification signs shall include the International Symbol of Accessibility complying with 703.7.2.1. Signs identifying van parking spaces shall contain the designation “van accessible.” Signs shall be 60 inches (1525 mm) minimum above the finish floor or ground surface measured to the bottom of the sign.
502.7 Relationship to Accessible Routes. Parking spaces and access aisles shall be designed so that cars and vans, when parked, cannot obstruct the required clear width of adjacent accessible routes.
503.1 General. Passenger loading zones shall comply with 503.
503.2 Vehicle Pull-Up Space. Passenger loading zones shall provide a vehicular pull-up space 96 inches (2440 mm) wide minimum and 20 feet (6100 mm) long minimum.
503.3 Access Aisle. Passenger loading zones shall provide access aisles complying with 503 adjacent to the vehicle pull-up space. Access aisles shall adjoin an accessible route and shall not overlap the vehicular way.
503.3.1 Width. Access aisles serving vehicle pull-up spaces shall be 60 inches (1525 mm) wide minimum.
503.3.2 Length. Access aisles shall extend the full length of the vehicle pull-up spaces they serve.
503.3.3 Marking. Access aisles shall be marked so as to discourage parking in them.
503.4 Floor and Ground Surfaces. Vehicle pull-up spaces and access aisles serving them shall comply with 302. Access aisles shall be at the same level as the vehicle pull-up space they serve. Changes in level are not permitted.
503.5 Vertical Clearance. Vehicle pull-up spaces, access aisles serving them, and a vehicular route from an entrance to the passenger loading zone, and from the passenger loading zone to a vehicular exit shall provide a vertical clearance of 114 inches (2895 mm) minimum.
504.1 General. Stairs shall comply with 504.
504.2 Treads and Risers. All steps on a flight of stairs shall have uniform riser heights and uniform tread depths. Risers shall be 4 inches (100 mm) high minimum and 7 inches (180 mm) high maximum. Treads shall be 11 inches (280 mm) deep minimum.
504.3 Open Risers. Open risers are not permitted.
504.4 Tread Surface. Stair treads shall comply with 302. Changes in level are not permitted.
504.5 Nosings. The radius of curvature at the leading edge of the tread shall be
504.6 Handrails. Stairs shall have handrails complying with 505.
504.7 Wet Conditions. Stair treads and landings subject to wet conditions shall be designed to prevent the accumulation of water.
505.1 General. Handrails provided along walking surfaces complying with 403, required at ramps complying with 405, and required at stairs complying with 504 shall comply with 505.
505.2 Where Required. Handrails shall be provided on both sides of stairs and ramps.
505.3 Continuity. Handrails shall be continuous within the full length of each stair flight or ramp run. Inside handrails on switchback or dogleg stairs and ramps shall be continuous between flights or runs.
505.4 Height. Top of gripping surfaces of handrails shall be 34 inches (865 mm) minimum and 38 inches (965 mm) maximum vertically above walking surfaces, stair nosings, and ramp surfaces. Handrails shall be at a consistent height above walking surfaces, stair nosings, and ramp surfaces.
505.5 Clearance. Clearance between handrail gripping surfaces and adjacent surfaces shall be 1
505.6 Gripping Surface. Handrail gripping surfaces shall be continuous along their length and shall not be obstructed along their tops or sides. The bottoms of handrail gripping surfaces shall not be obstructed for more than 20 percent of their length. Where provided, horizontal projections shall occur 1
2. The distance between horizontal projections and the bottom of the gripping surface shall be permitted to be reduced by
505.7 Cross Section. Handrail gripping surfaces shall have a cross section complying with 505.7.1 or 505.7.2.
505.7.1 Circular Cross Section. Handrail gripping surfaces with a circular cross section shall have an outside diameter of 1
505.7.2 Non-Circular Cross Sections. Handrail gripping surfaces with a noncircular cross section shall have a perimeter dimension of 4 inches (100 mm) minimum and 6
505.8 Surfaces. Handrail gripping surfaces and any surfaces adjacent to them shall be free of sharp or abrasive elements and shall have rounded edges.
505.9 Fittings. Handrails shall not rotate within their fittings.
505.10 Handrail Extensions. Handrail gripping surfaces shall extend beyond and in the same direction of stair flights and ramp runs in accordance with 505.10.
2. In assembly areas, extensions shall not be required for ramp handrails in aisles serving seating where the handrails are discontinuous to provide access to seating and to permit crossovers within aisles.
3. In alterations, full extensions of handrails shall not be required where such extensions would be hazardous due to plan configuration.
505.10.1 Top and Bottom Extension at Ramps. Ramp handrails shall extend horizontally above the landing for 12 inches (305 mm) minimum beyond the top and bottom of ramp runs. Extensions shall return to a wall, guard, or the landing surface, or shall be continuous to the handrail of an adjacent ramp run.
505.10.2 Top Extension at Stairs. At the top of a stair flight, handrails shall extend horizontally above the landing for 12 inches (305 mm) minimum beginning directly above the first riser nosing. Extensions shall return to a wall, guard, or the landing surface, or shall be continuous to the handrail of an adjacent stair flight.
505.10.3 Bottom Extension at Stairs. At the bottom of a stair flight, handrails shall extend at the slope of the stair flight for a horizontal distance at least equal to one tread depth beyond the last riser nosing. Extension shall return to a wall, guard, or the landing surface, or shall be continuous to the handrail of an adjacent stair flight.
601.1 Scope. The provisions of Chapter 6 shall apply where required by Chapter 2 or where referenced by a requirement in this document.
602.1 General. Drinking fountains shall comply with 307 and 602.
602.2 Clear Floor Space. Units shall have a clear floor or ground space complying with 305 positioned for a forward approach and centered on the unit. Knee and toe clearance complying with 306 shall be provided.
602.3 Operable Parts. Operable parts shall comply with 309.
602.4 Spout Height. Spout outlets shall be 36 inches (915 mm) maximum above the finish floor or ground.
602.5 Spout Location. The spout shall be located 15 inches (380 mm) minimum from the vertical support and 5 inches (125 mm) maximum from the front edge of the unit, including bumpers.
602.6 Water Flow. The spout shall provide a flow of water 4 inches (100 mm) high minimum and shall be located 5 inches (125 mm) maximum from the front of the unit. The angle of the water stream shall be measured horizontally relative to the front face of the unit. Where spouts are located less than 3 inches (75 mm) of the front of the unit, the angle of the water stream shall be 30 degrees maximum. Where spouts are located between 3 inches (75 mm) and 5 inches (125 mm) maximum from the front of the unit, the angle of the water stream shall be 15 degrees maximum.
602.7 Drinking Fountains for Standing Persons. Spout outlets of drinking fountains for standing persons shall be 38 inches (965 mm) minimum and 43 inches (1090 mm) maximum above the finish floor or ground.
603.1 General. Toilet and bathing rooms shall comply with 603.
603.2 Clearances. Clearances shall comply with 603.2.
603.2.1 Turning Space. Turning space complying with 304 shall be provided within the room.
603.2.2 Overlap. Required clear floor spaces, clearance at fixtures, and turning space shall be permitted to overlap.
603.2.3 Door Swing. Doors shall not swing into the clear floor space or clearance required for any fixture. Doors shall be permitted to swing into the required turning space.
2. Where the toilet room or bathing room is for individual use and a clear floor space complying with 305.3 is provided within the room beyond the arc of the door swing, doors shall be permitted to swing into the clear floor space or clearance required for any fixture.
603.3 Mirrors. Mirrors located above lavatories or countertops shall be installed with the bottom edge of the reflecting surface 40 inches (1015 mm) maximum above the finish floor or ground. Mirrors not located above lavatories or countertops shall be installed with the bottom edge of the reflecting surface 35 inches (890 mm) maximum above the finish floor or ground.
603.4 Coat Hooks and Shelves. Coat hooks shall be located within one of the reach ranges specified in 308. Shelves shall be located 40 inches (1015 mm) minimum and 48 inches (1220 mm) maximum above the finish floor.
604.1 General. Water closets and toilet compartments shall comply with 604.2 through 604.8.
604.2 Location. The water closet shall be positioned with a wall or partition to the rear and to one side. The centerline of the water closet shall be 16 inches (405 mm) minimum to 18 inches (455 mm) maximum from the side wall or partition, except that the water closet shall be 17 inches (430 mm) minimum and 19 inches (485 mm) maximum from the side wall or partition in the ambulatory accessible toilet compartment specified in 604.8.2. Water closets shall be arranged for a left-hand or right-hand approach.
604.3 Clearance. Clearances around water closets and in toilet compartments shall comply with 604.3.
604.3.1 Size. Clearance around a water closet shall be 60 inches (1525 mm) minimum measured perpendicular from the side wall and 56 inches (1420 mm) minimum measured perpendicular from the rear wall.
604.3.2 Overlap. The required clearance around the water closet shall be permitted to overlap the water closet, associated grab bars, dispensers, sanitary napkin disposal units, coat hooks, shelves, accessible routes, clear floor space and clearances required at other fixtures, and the turning space. No other fixtures or obstructions shall be located within the required water closet clearance.
604.4 Seats. The seat height of a water closet above the finish floor shall be 17 inches (430 mm) minimum and 19 inches (485 mm) maximum measured to the top of the seat. Seats shall not be sprung to return to a lifted position.
2. In residential dwelling units, the height of water closets shall be permitted to be 15 inches (380 mm) minimum and 19 inches (485 mm) maximum above the finish floor measured to the top of the seat.
604.5 Grab Bars. Grab bars for water closets shall comply with 609. Grab bars shall be provided on the side wall closest to the water closet and on the rear wall.
2. In residential dwelling units, other than emergency transportable housing units required to provide mobility features complying with 809.2, grab bars shall not be required to be installed in toilet or bathrooms provided that reinforcement has been installed in walls and located so as to permit the installation of grab bars complying with 604.5.
3. In detention or correction facilities, grab bars shall not be required to be installed in housing or holding cells that are specially designed without protrusions for purposes of suicide prevention.
604.5.1 Side Wall. The side wall grab bar shall be 42 inches (1065 mm) long minimum, located 12 inches (305 mm) maximum from the rear wall and extending 54 inches (1370 mm) minimum from the rear wall.
604.5.2 Rear Wall. The rear wall grab bar shall be 36 inches (915 mm) long minimum and extend from the centerline of the water closet 12 inches (305 mm) minimum on one side and 24 inches (610 mm) minimum on the other side.
2. Where an administrative authority requires flush controls for flush valves to be located in a position that conflicts with the location of the rear grab bar, then the rear grab bar shall be permitted to be split or shifted to the open side of the toilet area.
604.6 Flush Controls. Flush controls shall be hand operated or automatic. Hand operated flush controls shall comply with 309. Flush controls shall be located on the open side of the water closet except in ambulatory accessible compartments complying with 604.8.2.
604.7 Dispensers. Toilet paper dispensers shall comply with 309.4 and shall be 7 inches (180 mm) minimum and 9 inches (230 mm) maximum in front of the water closet measured to the centerline of the dispenser. The outlet of the dispenser shall be 15 inches (380 mm) minimum and 48 inches (1220 mm) maximum above the finish floor and shall not be located behind grab bars. Dispensers shall not be of a type that controls delivery or that does not allow continuous paper flow.
604.8 Toilet Compartments. Wheelchair accessible toilet compartments shall meet the requirements of 604.8.1 and 604.8.3. Compartments containing more than one plumbing fixture shall comply with 603. Ambulatory accessible compartments shall comply with 604.8.2 and 604.8.3.
604.8.1 Wheelchair Accessible Compartments. Wheelchair accessible compartments shall comply with 604.8.1.
604.8.1.1 Size. Wheelchair accessible compartments shall be 60 inches (1525 mm) wide minimum measured perpendicular to the side wall, and 56 inches (1420 mm) deep minimum for wall hung water closets and 59 inches (1500 mm) deep minimum for floor mounted water closets measured perpendicular to the rear wall. Wheelchair accessible compartments for children’s use shall be 60 inches (1525 mm) wide minimum measured perpendicular to the side wall, and 59 inches (1500 mm) deep minimum for wall hung and floor mounted water closets measured perpendicular to the rear wall.
604.8.1.2 Doors. Toilet compartment doors, including door hardware, shall comply with 404 except that if the approach is to the latch side of the compartment door, clearance between the door side of the compartment and any obstruction shall be 42 inches (1065 mm) minimum. Doors shall be located in the front partition or in the side wall or partition farthest from the water closet. Where located in the front partition, the door opening shall be 4 inches (100 mm) maximum from the side wall or partition farthest from the water closet. Where located in the side wall or partition, the door opening shall be 4 inches (100 mm) maximum from the front partition. The door shall be self-closing. A door pull complying with 404.2.7 shall be placed on both sides of the door near the latch. Toilet compartment doors shall not swing into the minimum required compartment area.
604.8.1.3 Approach. Compartments shall be arranged for left-hand or right-hand approach to the water closet.
604.8.1.4 Toe Clearance. The front partition and at least one side partition shall provide a toe clearance of 9 inches (230 mm) minimum above the finish floor and 6 inches (150 mm) deep minimum beyond the compartment-side face of the partition, exclusive of partition support members. Compartments for children’s use shall provide a toe clearance of 12 inches (305 mm) minimum above the finish floor.
604.8.1.5 Grab Bars. Grab bars shall comply with 609. A sidewall grab bar complying with 604.5.1 shall be provided and shall be located on the wall closest to the water closet. In addition, a rear-wall grab bar complying with 604.5.2 shall be provided.
604.8.2 Ambulatory Accessible Compartments. Ambulatory accessible compartments shall comply with 604.8.2.
604.8.2.1 Size. Ambulatory accessible compartments shall have a depth of 60 inches (1525 mm) minimum and a width of 35 inches (890 mm) minimum and 37 inches (940 mm) maximum.
604.8.2.2 Doors. Toilet compartment doors, including door hardware, shall comply with 404, except that if the approach is to the latch side of the compartment door, clearance between the door side of the compartment and any obstruction shall be 42 inches (1065 mm) minimum. The door shall be self-closing. A door pull complying with 404.2.7 shall be placed on both sides of the door near the latch. Toilet compartment doors shall not swing into the minimum required compartment area.
604.8.2.3 Grab Bars. Grab bars shall comply with 609. A sidewall grab bar complying with 604.5.1 shall be provided on both sides of the compartment.
604.8.3 Coat Hooks and Shelves. Coat hooks shall be located within one of the reach ranges specified in 308. Shelves shall be located 40 inches (1015 mm) minimum and 48 inches (1220 mm) maximum above the finish floor.
604.9 Water Closets and Toilet Compartments for Children’s Use. Water closets and toilet compartments for children’s use shall comply with 604.9.
604.9.1 Location. The water closet shall be located with a wall or partition to the rear and to one side. The centerline of the water closet shall be 12 inches (305 mm) minimum and 18 inches (455 mm) maximum from the side wall or partition, except that the water closet shall be 17 inches (430 mm) minimum and 19 inches (485 mm) maximum from the side wall or partition in the ambulatory accessible toilet compartment specified in 604.8.2. Compartments shall be arranged for left-hand or right-hand approach to the water closet.
604.9.2 Clearance. Clearance around a water closet shall comply with 604.3.
604.9.3 Height. The height of water closets shall be 11 inches (280 mm) minimum and 17 inches (430 mm) maximum measured to the top of the seat. Seats shall not be sprung to return to a lifted position.
604.9.4 Grab Bars. Grab bars for water closets shall comply with 604.5.
604.9.5 Flush Controls. Flush controls shall be hand operated or automatic. Hand operated flush controls shall comply with 309.2 and 309.4 and shall be installed 36 inches (915 mm) maximum above the finish floor. Flush controls shall be located on the open side of the water closet except in ambulatory accessible compartments complying with 604.8.2.
604.9.6 Dispensers. Toilet paper dispensers shall comply with 309.4 and shall be 7 inches (180 mm) minimum and 9 inches (230 mm) maximum in front of the water closet measured to the centerline of the dispenser. The outlet of the dispenser shall be 14 inches (355 mm) minimum and 19 inches (485 mm) maximum above the finish floor. There shall be a clearance of 1
604.9.7 Toilet Compartments. Toilet compartments shall comply with 604.8.
605.1 General. Urinals shall comply with 605.
605.2 Height and Depth. Urinals shall be the stall-type or the wall-hung type with the rim 17 inches (430 mm) maximum above the finish floor or ground. Urinals shall be 13
605.3 Clear Floor Space. A clear floor or ground space complying with 305 positioned for forward approach shall be provided.
605.4 Flush Controls. Flush controls shall be hand operated or automatic. Hand operated flush controls shall comply with 309.
606.1 General. Lavatories and sinks shall comply with 606.
606.2 Clear Floor Space. A clear floor space complying with 305, positioned for a forward approach, and knee and toe clearance complying with 306 shall be provided.
2. A lavatory in a toilet room or bathing facility for a single occupant accessed only through a private office and not for common use or public use shall not be required to provide knee and toe clearance complying with 306.
3. In residential dwelling units, other than emergency transportable housing units required to provide mobility features complying with 809.2, cabinetry shall be permitted under lavatories and kitchen sinks provided that all of the following conditions are met:
(a) The cabinetry can be removed without removal or replacement of the fixture;
(b) The finish floor extends under the cabinetry; and
(c) The walls behind and surrounding the cabinetry are finished.
4. A knee clearance of 24 inches (610 mm) minimum above the finish floor or ground shall be permitted at lavatories and sinks used primarily by children 6 through 12 years where the rim or counter surface is 31 inches (785 mm) maximum above the finish floor or ground.
5. A parallel approach complying with 305 shall be permitted to lavatories and sinks used primarily by children 5 years and younger.
6. The dip of the overflow shall not be considered in determining knee and toe clearances.
7. No more than one bowl of a multi-bowl sink shall be required to provide knee and toe clearance complying with 306.
606.3 Height. Lavatories and sinks shall be installed with the front of the higher of the rim or counter surface 34 inches (865 mm) maximum above the finish floor or ground.
2. In residential dwelling unit kitchens, sinks that are adjustable to variable heights, 29 inches (735 mm) minimum and 36 inches (915 mm) maximum, shall be permitted where rough-in plumbing permits connections of supply and drain pipes for sinks mounted at the height of 29 inches (735 mm).
606.4 Faucets and water spray units. Controls for faucets shall comply with 309. Hand-operated metering faucets shall remain open for 10 seconds minimum. Faucets and Water Spray Units. A water spray unit shall be provided at the kitchen sink in emergency transportable housing units required to provide mobility features complying with 809.2.
606.5 Exposed Pipes and Surfaces. Water supply and drain pipes under lavatories and sinks shall be insulated or otherwise configured to protect against contact. There shall be no sharp or abrasive surfaces under lavatories and sinks.
607.1 General. Bathtubs shall comply with 607.
607.2 Clearance. Clearance in front of bathtubs shall extend the length of the bathtub and shall be 30 inches (760 mm) wide minimum. A lavatory complying with 606 shall be permitted at the control end of the clearance. Where a permanent seat is provided at the head end of the bathtub, the clearance shall extend 12 inches (305 mm) minimum beyond the wall at the head end of the bathtub.
607.3 Seat. A permanent seat at the head end of the bathtub or a removable in-tub seat shall be provided. Seats shall comply with 610.
607.4 Grab Bars. Grab bars for bathtubs shall comply with 609 and shall be provided in accordance with 607.4.1 or 607.4.2.
2. In residential dwelling units, other than emergency transportable housing units required to provide mobility features complying with 809.2, grab bars shall not be required to be installed in bathtubs located in bathing facilities provided that reinforcement has been installed in walls and located so as to permit the installation of grab bars complying with 607.4.
607.4.1 Bathtubs With Permanent Seats. For bathtubs with permanent seats, grab bars shall be provided in accordance with 607.4.1.
607.4.1.1 Back Wall. Two grab bars shall be installed on the back wall, one located in accordance with 609.4 and the other located 8 inches (205 mm) minimum and 10 inches (255 mm) maximum above the rim of the bathtub. Each grab bar shall be installed 15 inches (380 mm) maximum from the head end wall and 12 inches (305 mm) maximum from the control end wall.
607.4.1.2 Control End Wall. A grab bar 24 inches (610 mm) long minimum shall be installed on the control end wall at the front edge of the bathtub.
607.4.2 Bathtubs Without Permanent Seats. For bathtubs without permanent seats, grab bars shall comply with 607.4.2.
607.4.2.1 Back Wall. Two grab bars shall be installed on the back wall, one located in accordance with 609.4 and other located 8 inches (205 mm) minimum and 10 inches (255 mm) maximum above the rim of the bathtub. Each grab bar shall be 24 inches (610 mm) long minimum and shall be installed 24 inches (610 mm) maximum from the head end wall and 12 inches (305 mm) maximum from the control end wall.
607.4.2.2 Control End Wall. A grab bar 24 inches (610 mm) long minimum shall be installed on the control end wall at the front edge of the bathtub.
607.4.2.3 Head End Wall. A grab bar 12 inches (305 mm) long minimum shall be installed on the head end wall at the front edge of the bathtub.
607.5 Controls. Controls, other than drain stoppers, shall be located on an end wall. Controls shall be between the bathtub rim and grab bar, and between the open side of the bathtub and the centerline of the width of the bathtub. Controls shall comply with 309.4.
607.6 Shower Spray Unit and Water. A shower spray unit with a hose 59 inches (1500 mm) long minimum that can be used both as a fixed-position shower head and as a handheld shower shall be provided. The shower spray unit shall have an on/off control with a non-positive shut-off. If an adjustable height shower head on a vertical bar is used, the bar shall be installed so as not to obstruct the use of grab bars. Bathtub shower spray units shall deliver water that is 120 °F (49 °C) maximum.
607.7 Bathtub Enclosures. Enclosures for bathtubs shall not obstruct controls, faucets, shower and spray units or obstruct transfer from wheelchairs onto bathtub seats or into bathtubs. Enclosures on bathtubs shall not have tracks installed on the rim of the open face of the bathtub.
608.1 General. Shower compartments shall comply with 608.
608.2 Size and Clearances for Shower Compartments. Shower compartments shall have sizes and clearances complying with 608.2.
608.2.1 Transfer Type Shower Compartments. Transfer type shower compartments shall be 36 inches (915 mm) by 36 inches (915 mm) clear inside dimensions measured at the center points of opposing sides and shall have a 36 inch (915 mm) wide minimum entry on the face of the shower compartment. Clearance of 36 inches (915 mm) wide minimum by 48 inches (1220 mm) long minimum measured from the control wall shall be provided.
608.2.2 Standard Roll-In Type Shower Compartments. Standard roll-in type shower compartments shall be 30 inches (760 mm) wide minimum by 60 inches (1525 mm) deep minimum clear inside dimensions measured at center points of opposing sides and shall have a 60 inches (1525 mm) wide minimum entry on the face of the shower compartment.
608.2.2.1 Clearance. A 30 inch (760 mm) wide minimum by 60 inch (1525 mm) long minimum clearance shall be provided adjacent to the open face of the shower compartment.
608.2.3 Alternate Roll-In Type Shower Compartments. Alternate roll-in type shower compartments shall be 36 inches (915 mm) wide and 60 inches (1525 mm) deep minimum clear inside dimensions measured at center points of opposing sides. A 36 inch (915 mm) wide minimum entry shall be provided at one end of the long side of the compartment.
608.3 Grab Bars. Grab bars shall comply with 609 and shall be provided in accordance with 608.3. Where multiple grab bars are used, required horizontal grab bars shall be installed at the same height above the finish floor.
2. In residential dwelling units, other than emergency transportable housing units required to provide mobility features complying with 809.2, grab bars shall not be required to be installed in showers located in bathing facilities provided that reinforcement has been installed in walls and located so as to permit the installation of grab bars complying with 608.3.
608.3.1 Transfer Type Shower Compartments. In transfer type compartments, grab bars shall be provided across the control wall and back wall to a point 18 inches (455 mm) from the control wall.
608.3.2 Standard Roll-In Type Shower Compartments. Where a seat is provided in standard roll-in type shower compartments, grab bars shall be provided on the back wall and the side wall opposite the seat. Grab bars shall not be provided above the seat. Where a seat is not provided in standard roll-in type shower compartments, grab bars shall be provided on three walls. Grab bars shall be installed 6 inches (150 mm) maximum from adjacent walls.
608.3.3 Alternate Roll-In Type Shower Compartments. In alternate roll-in type shower compartments, grab bars shall be provided on the back wall and the side wall farthest from the compartment entry. Grab bars shall not be provided above the seat. Grab bars shall be installed 6 inches (150 mm) maximum from adjacent walls.
608.4 Seats. A folding or non-folding seat shall be provided in transfer type shower compartments. A folding seat shall be provided in roll-in type showers required in transient lodging guest rooms with mobility features complying with 806.2 and in roll-in type showers provided in emergency transportable housing units required to provide mobility features complying with 809.2. Seats shall comply with 610.
608.5 Controls. Controls, faucets, and shower spray units shall comply with 309.4.
608.5.1 Transfer Type Shower Compartments. In transfer type shower compartments, the controls, faucets, and shower spray unit shall be installed on the side wall opposite the seat 38 inches (965 mm) minimum and 48 inches (1220 mm) maximum above the shower floor and shall be located on the control wall 15 inches (380 mm) maximum from the centerline of the seat toward the shower opening.
608.5.2 Standard Roll-In Type Shower Compartments. In standard roll-in type shower compartments, the controls, faucets, and shower spray unit shall be located above the grab bar, but no higher than 48 inches (1220 mm) above the shower floor. Where a seat is provided, the controls, faucets, and shower spray unit shall be installed on the back wall adjacent to the seat wall and shall be located 27 inches (685 mm) maximum from the seat wall.
608.5.3 Alternate Roll-In Type Shower Compartments. In alternate roll-in type shower compartments, the controls, faucets, and shower spray unit shall be located above the grab bar, but no higher than 48 inches (1220 mm) above the shower floor. Where a seat is provided, the controls, faucets, and shower spray unit shall be located on the side wall adjacent to the seat 27 inches (685 mm) maximum from the side wall behind the seat or shall be located on the back wall opposite the seat 15 inches (380 mm) maximum, left or right, of the centerline of the seat. Where a seat is not provided, the controls, faucets, and shower spray unit shall be installed on the side wall farthest from the compartment entry.
608.6 Shower Spray Unit and Water. A shower spray unit with a hose 59 inches (1500 mm) long minimum that can be used both as a fixed-position shower head and as a handheld shower shall be provided. The shower spray unit shall have an on/off control with a non-positive shut-off. If an adjustable-height shower head on a vertical bar is used, the bar shall be installed so as not to obstruct the use of grab bars. Shower spray units shall deliver water that is 120 °F (49 °C) maximum.
608.7 Thresholds. Thresholds in roll-in type shower compartments shall be
608.8 Shower Enclosures. Enclosures for shower compartments shall not obstruct controls, faucets, and shower spray units or obstruct transfer from wheelchairs onto shower seats.
609.1 General. Grab bars in toilet facilities and bathing facilities shall comply with 609.
609.2 Cross Section. Grab bars shall have a cross section complying with 609.2.1 or 609.2.2.
609.2.1 Circular Cross Section. Grab bars with circular cross sections shall have an outside diameter of 1
609.2.2 Non-Circular Cross Section. Grab bars with non-circular cross sections shall have a cross-section dimension of 2 inches (51 mm) maximum and a perimeter dimension of 4 inches (100 mm) minimum and 4.8 inches (120 mm) maximum.
609.3 Spacing. The space between the wall and the grab bar shall be 1
609.4 Position of Grab Bars. Grab bars shall be installed in a horizontal position, 33 inches (840 mm) minimum and 36 inches (915 mm) maximum above the finish floor measured to the top of the gripping surface, except that at water closets for children’s use complying with 604.9, grab bars shall be installed in a horizontal position 18 inches (455 mm) minimum and 27 inches (685 mm) maximum above the finish floor measured to the top of the gripping surface. The height of the lower grab bar on the back wall of a bathtub shall comply with 607.4.1.1 or 607.4.2.1.
609.5 Surface Hazards. Grab bars and any wall or other surfaces adjacent to grab bars shall be free of sharp or abrasive elements and shall have rounded edges.
609.6 Fittings. Grab bars shall not rotate within their fittings.
609.7 Installation. Grab bars shall be installed in any manner that provides a gripping surface at the specified locations and that does not obstruct the required clear floor space.
609.8 Structural Strength. Allowable stresses shall not be exceeded for materials used when a vertical or horizontal force of 250 pounds (1112 N) is applied at any point on the grab bar, fastener, mounting device, or supporting structure.
610.1 General. Seats in bathtubs and shower compartments shall comply with 610.
610.2 Bathtub Seats. The top of bathtub seats shall be 17 inches (430 mm) minimum and 19 inches (485 mm) maximum above the bathroom finish floor. The depth of a removable in-tub seat shall be 15 inches (380 mm) minimum and 16 inches (405 mm) maximum. The seat shall be capable of secure placement. Permanent seats at the head end of the bathtub shall be 15 inches (380 mm) deep minimum and shall extend from the back wall to or beyond the outer edge of the bathtub.
610.3 Shower Compartment Seats. Where a seat is provided in a standard roll-in shower compartment, it shall be a folding type, shall be installed on the side wall adjacent to the controls, and shall extend from the back wall to a point within 3 inches (75 mm) of the compartment entry. Where a seat is provided in an alternate roll-in type shower compartment, it shall be a folding type, shall be installed on the front wall opposite the back wall, and shall extend from the adjacent side wall to a point within 3 inches (75 mm) of the compartment entry. In transfer-type showers, the seat shall extend from the back wall to a point within 3 inches (75 mm) of the compartment entry. The top of the seat shall be 17 inches (430 mm) minimum and 19 inches (485 mm) maximum above the bathroom finish floor. Seats shall comply with 610.3.1 or 610.3.2.
610.3.1 Rectangular Seats. The rear edge of a rectangular seat shall be 2
610.3.2 L-Shaped Seats. The rear edge of an L-shaped seat shall be 2
610.4 Structural Strength. Allowable stresses shall not be exceeded for materials used when a vertical or horizontal force of 250 pounds (1112 N) is applied at any point on the seat, fastener, mounting device, or supporting structure.
611.1 General. Washing machines and clothes dryers shall comply with 611.
611.2 Clear Floor Space. A clear floor or ground space complying with 305 positioned for parallel approach shall be provided. The clear floor or ground space shall be centered on the appliance.
611.3 Operable Parts. Operable parts, including doors, lint screens, and detergent and bleach compartments shall comply with 309.
611.4 Height. Top loading machines shall have the door to the laundry compartment located 36 inches (915 mm) maximum above the finish floor. Front loading machines shall have the bottom of the opening to the laundry compartment located 15 inches (380 mm) minimum and 36 inches (915 mm) maximum above the finish floor.
612.1 General. Saunas and steam rooms shall comply with 612.
612.2 Bench. Where seating is provided in saunas and steam rooms, at least one bench shall comply with 903. Doors shall not swing into the clear floor space required by 903.2.
612.3 Turning Space. A turning space complying with 304 shall be provided within saunas and steam rooms.
701.1 Scope. The provisions of Chapter 7 shall apply where required by Chapter 2 or where referenced by a requirement in this document.
702.1 General. Fire alarm systems shall have permanently installed audible and visible alarms complying with NFPA 72 (1999 or 2002 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1), except that the maximum allowable sound level of audible notification appliances complying with section 4-3.2.1 of NFPA 72 (1999 edition) shall have a sound level no more than 110 dB at the minimum hearing distance from the audible appliance. In addition, alarms in guest rooms required to provide communication features shall comply with sections 4-3 and 4-4 of NFPA 72 (1999 edition) or sections 7.4 and 7.5 of NFPA 72 (2002 edition).
703.1 General. Signs shall comply with 703. Where both visual and tactile characters are required, either one sign with both visual and tactile characters, or two separate signs, one with visual, and one with tactile characters, shall be provided.
703.2 Raised Characters. Raised characters shall comply with 703.2 and shall be duplicated in braille complying with 703.3. Raised characters shall be installed in accordance with 703.4.
703.2.1 Depth. Raised characters shall be
703.2.2 Case. Characters shall be uppercase.
703.2.3 Style. Characters shall be sans serif. Characters shall not be italic, oblique, script, highly decorative, or of other unusual forms.
703.2.4 Character Proportions. Characters shall be selected from fonts where the width of the uppercase letter “O” is 55 percent minimum and 110 percent maximum of the height of the uppercase letter “I”.
703.2.5 Character Height. Character height measured vertically from the baseline of the character shall be
703.2.6 Stroke Thickness. Stroke thickness of the uppercase letter “I” shall be 15 percent maximum of the height of the character.
703.2.7 Character Spacing. Character spacing shall be measured between the two closest points of adjacent raised characters within a message, excluding word spaces. Where characters have rectangular cross sections, spacing between individual raised characters shall be
703.2.8 Line Spacing. Spacing between the baselines of separate lines of raised characters within a message shall be 135 percent minimum and 170 percent maximum of the raised character height.
703.3 Braille. Braille shall be contracted (Grade 2) and shall comply with 703.3 and 703.4.
703.3.1 Dimensions and Capitalization. Braille dots shall have a domed or rounded shape and shall comply with Table 703.3.1. The indication of an uppercase letter or letters shall only be used before the first word of sentences, proper nouns and names, individual letters of the alphabet, initials, and acronyms.
Table 703.3.1—Braille Dimensions
| Measurement range | Minimum in inches Maximum in inches |
|---|---|
| Dot base diameter | 0.059 (1.5 mm) to 0.063 (1.6 mm). |
| Distance between two dots in the same cell 1 | 0.090 (2.3 mm) to 0.100 (2.5 mm). |
| Distance between corresponding dots in adjacent cells 1 | 0.241 (6.1 mm) to 0.300 (7.6 mm). |
| Dot height | 0.025 (0.6 mm) to 0.037 (0.9 mm). |
| Distance between corresponding dots from one cell directly below 1 | 0.395 (10 mm) to 0.400 (10.2 mm). |
1 Measured center to center.
703.3.2 Position. Braille shall be positioned below the corresponding text. If text is multi-lined, braille shall be placed below the entire text. Braille shall be separated
703.4 Installation Height and Location. Signs with tactile characters shall comply with 703.4.
703.4.1 Height Above Finish Floor or Ground. Tactile characters on signs shall be located 48 inches (1220 mm) minimum above the finish floor or ground surface, measured from the baseline of the lowest tactile character and 60 inches (1525 mm) maximum above the finish floor or ground surface, measured from the baseline of the highest tactile character.
703.4.2 Location. Where a tactile sign is provided at a door, the sign shall be located alongside the door at the latch side. Where a tactile sign is provided at double doors with one active leaf, the sign shall be located on the inactive leaf. Where a tactile sign is provided at double doors with two active leafs, the sign shall be located to the right of the right hand door. Where there is no wall space at the latch side of a single door or at the right side of double doors, signs shall be located on the nearest adjacent wall. Signs containing tactile characters shall be located so that a clear floor space of 18 inches (455 mm) minimum by 18 inches (455 mm) minimum, centered on the tactile characters, is provided beyond the arc of any door swing between the closed position and 45 degree open position.
703.5 Visual Characters. Visual characters shall comply with 703.5.
703.5.1 Finish and Contrast. Characters and their background shall have a non-glare finish. Characters shall contrast with their background with either light characters on a dark background or dark characters on a light background.
703.5.2 Case. Characters shall be uppercase or lowercase or a combination of both.
703.5.3 Style. Characters shall be conventional in form. Characters shall not be italic, oblique, script, highly decorative, or of other unusual forms.
703.5.4 Character Proportions. Characters shall be selected from fonts where the width of the uppercase letter “O” is 55 percent minimum and 110 percent maximum of the height of the uppercase letter “I”.
703.5.5 Character Height. Minimum character height shall comply with Table 703.5.5. Viewing distance shall be measured as the horizontal distance between the character and an obstruction preventing further approach towards the sign. Character height shall be based on the uppercase letter “I”.
Table 703.5.5—Visual Character Height
| Height to finish floor or ground from baseline of character | Horizontal viewing distance | Minimum character height |
|---|---|---|
| 40 inches (1015 mm) to less than or equal to 70 inches (1780 mm) | less than 72 inches (1830 mm) | |
| 72 inches (1830 mm) and greater | ||
| Greater than 70 inches (1780 mm) to less than or equal to 120 inches (3050 mm) | less than 180 inches (4570 mm) | 2 inches (51 mm). |
| 180 inches (4570 mm) and greater | 2 inches (51 mm), plus | |
| Greater than 120 inches (3050 mm) | less than 21 feet (6400 mm) | 3 inches (75 mm). |
| 21 feet (6400 mm) and greater | 3 inches (75 mm), plus |
703.5.6 Height From Finish Floor or Ground. Visual characters shall be 40 inches (1015 mm) minimum above the finish floor or ground.
703.5.7 Stroke Thickness. Stroke thickness of the uppercase letter “I” shall be 10 percent minimum and 30 percent maximum of the height of the character.
703.5.8 Character Spacing. Character spacing shall be measured between the two closest points of adjacent characters, excluding word spaces. Spacing between individual characters shall be 10 percent minimum and 35 percent maximum of character height.
703.5.9 Line Spacing. Spacing between the baselines of separate lines of characters within a message shall be 135 percent minimum and 170 percent maximum of the character height.
703.6 Pictograms. Pictograms shall comply with 703.6.
703.6.1 Pictogram Field. Pictograms shall have a field height of 6 inches (150 mm) minimum. Characters and braille shall not be located in the pictogram field.
703.6.2 Finish and Contrast. Pictograms and their field shall have a non-glare finish. Pictograms shall contrast with their field with either a light pictogram on a dark field or a dark pictogram on a light field.
703.6.3 Text Descriptors. Pictograms shall have text descriptors located directly below the pictogram field. Text descriptors shall comply with 703.2, 703.3 and 703.4.
703.7 Symbols of Accessibility. Symbols of accessibility shall comply with 703.7.
703.7.1 Finish and Contrast. Symbols of accessibility and their background shall have a non-glare finish. Symbols of accessibility shall contrast with their background with either a light symbol on a dark background or a dark symbol on a light background.
703.7.2 Symbols.
703.7.2.1 International Symbol of Accessibility. The International Symbol of Accessibility shall comply with Figure 703.7.2.1 at the end of this document.
703.7.2.2 International Symbol of TTY. The International Symbol of TTY shall comply with Figure 703.7.2.2 at the end of this document.
703.7.2.3 Volume Control Telephones. Telephones with a volume control shall be identified by a pictogram of a telephone handset with radiating sound waves.
703.7.2.4. Assistive Listening Systems. Assistive listening systems shall be identified by the International Symbol of Access for Hearing Loss complying with Figure 703.7.2.4 at the end of this document.
704.1 General. Public telephones shall comply with 704.
704.2 Wheelchair Accessible Telephones. Wheelchair accessible telephones shall comply with 704.2.
704.2.1 Clear Floor or Ground Space. A clear floor or ground space complying with 305 shall be provided. The clear floor or ground space shall not be obstructed by bases, enclosures, or seats.
704.2.1.1 Parallel Approach. Where a parallel approach is provided, the distance from the edge of the telephone enclosure to the face of the telephone unit shall be 10 inches (255 mm) maximum.
704.2.1.2 Forward Approach. Where a forward approach is provided, the distance from the front edge of a counter within the telephone enclosure to the face of the telephone unit shall be 20 inches (510 mm) maximum.
704.2.2 Operable Parts. Operable parts shall comply with 309. Telephones shall have pushbutton controls where such service is available.
704.2.3 Telephone Directories. Telephone directories, where provided, shall be located in accordance with 309.
704.2.4 Cord Length. The cord from the telephone to the handset shall be 29 inches (735 mm) long minimum.
704.3 Volume Control Telephones. Public telephones required to have volume controls shall be equipped with a receive volume control that provides a gain adjustable up to 20 dB minimum. For incremental volume control, provide at least one intermediate step of 12 dB of gain minimum. An automatic reset shall be provided.
704.4 TTYs. TTYs required at a public pay telephone shall be permanently affixed within, or adjacent to, the telephone enclosure. Where an acoustic coupler is used, the telephone cord shall be sufficiently long to allow connection of the TTY and the telephone receiver.
704.4.1 Height. When in use, the touch surface of TTY keypads shall be 34 inches (865 mm) minimum above the finish floor.
704.5 TTY Shelf. Public pay telephones required to accommodate portable TTYs shall be equipped with a shelf and an electrical outlet within or adjacent to the telephone enclosure. The telephone handset shall be capable of being placed flush on the surface of the shelf. The shelf shall be capable of accommodating a TTY and shall have 6 inches (150 mm) minimum vertical clearance above the area where the TTY is to be placed.
705.1 General. Detectable warnings shall consist of a surface of truncated domes and shall comply with 705.
705.1.1 Dome Size. Truncated domes in a detectable warning surface shall have a base diameter of 0.9 inch (23 mm) minimum and 1.4 inches (36 mm) maximum, a top diameter of 50 percent of the base diameter minimum to 65 percent of the base diameter maximum, and a height of 0.2 inch (5.1 mm).
705.1.2 Dome Spacing. Truncated domes in a detectable warning surface shall have a center-to-center spacing of 1.6 inches (41 mm) minimum and 2.4 inches (61 mm) maximum, and a base-to-base spacing of 0.65 inch (17 mm) minimum, measured between the most adjacent domes on a square grid.
705.1.3 Contrast. Detectable warning surfaces shall contrast visually with adjacent walking surfaces either light-on-dark, or dark-on-light.
705.2 Platform Edges. Detectable warning surfaces at platform boarding edges shall be 24 inches (610 mm) wide and shall extend the full length of the public use areas of the platform.
706.1 General. Assistive listening systems required in assembly areas shall comply with 706.
706.2 Receiver Jacks. Receivers required for use with an assistive listening system shall include a
706.3 Receiver Hearing-Aid Compatibility. Receivers required to be hearing-aid compatible shall interface with telecoils in hearing aids through the provision of neckloops.
706.4 Sound Pressure Level. Assistive listening systems shall be capable of providing a sound pressure level of 110 dB minimum and 118 dB maximum with a dynamic range on the volume control of 50 dB.
706.5 Signal-to-Noise Ratio. The signal-to-noise ratio for internally generated noise in assistive listening systems shall be 18 dB minimum.
706.6 Peak Clipping Level. Peak clipping shall not exceed 18 dB of clipping relative to the peaks of speech.
707.1 General. Automatic teller machines and fare machines shall comply with 707.
707.2 Clear Floor or Ground Space. A clear floor or ground space complying with 305 shall be provided.
707.3 Operable Parts. Operable parts shall comply with 309. Unless a clear or correct key is provided, each operable part shall be able to be differentiated by sound or touch, without activation.
707.4 Privacy. Automatic teller machines shall provide the opportunity for the same degree of privacy of input and output available to all individuals.
707.5 Speech Output. Machines shall be speech enabled. Operating instructions and orientation, visible transaction prompts, user input verification, error messages, and all displayed information for full use shall be accessible to and independently usable by individuals with vision impairments. Speech shall be delivered through a mechanism that is readily available to all users, including but not limited to, an industry standard connector or a telephone handset. Speech shall be recorded or digitized human, or synthesized.
2. Advertisements and other similar information shall not be required to be audible unless they convey information that can be used in the transaction being conducted.
3. Where speech synthesis cannot be supported, dynamic alphabetic output shall not be required to be audible.
707.5.1 User Control. Speech shall be capable of being repeated or interrupted. Volume control shall be provided for the speech function.
707.5.2 Receipts. Where receipts are provided, speech output devices shall provide audible balance inquiry information, error messages, and all other information on the printed receipt necessary to complete or verify the transaction.
2. Information on printed receipts that duplicates information available on-screen shall not be required to be presented in the form of an audible receipt.
3. Printed copies of bank statements and checks shall not be required to be audible.
707.6 Input. Input devices shall comply with 707.6.
707.6.1 Input Controls. At least one tactilely discernible input control shall be provided for each function. Where provided, key surfaces not on active areas of display screens, shall be raised above surrounding surfaces. Where membrane keys are the only method of input, each shall be tactilely discernible from surrounding surfaces and adjacent keys.
707.6.2 Numeric Keys. Numeric keys shall be arranged in a 12-key ascending or descending telephone keypad layout. The number five key shall be tactilely distinct from the other keys.
707.6.3 Function Keys. Function keys shall comply with 707.6.3.
707.6.3.1 Contrast. Function keys shall contrast visually from background surfaces. Characters and symbols on key surfaces shall contrast visually from key surfaces. Visual contrast shall be either light-on-dark or dark-on-light.
707.6.3.2 Tactile Symbols. Function key surfaces shall have tactile symbols as follows: Enter or Proceed key: raised circle; Clear or Correct key: raised left arrow; Cancel key: raised letter ex; Add Value key: raised plus sign; Decrease Value key: raised minus sign.
707.7 Display Screen. The display screen shall comply with 707.7.
707.7.1 Visibility. The display screen shall be visible from a point located 40 inches (1015 mm) above the center of the clear floor space in front of the machine.
707.7.2 Characters. Characters displayed on the screen shall be in a sans serif font. Characters shall be
707.8 Braille Instructions. Braille instructions for initiating the speech mode shall be provided. Braille shall comply with 703.3.
708.1 General. Two-way communication systems shall comply with 708.
708.2 Audible and Visual Indicators. The system shall provide both audible and visual signals.
708.3 Handsets. Handset cords, if provided, shall be 29 inches (735 mm) long minimum.
708.4 Residential Dwelling Unit Communication Systems. Communications systems between a residential dwelling unit and a site, building, or floor entrance shall comply with 708.4.
708.4.1 Common Use or Public Use System Interface. The common use or public use system interface shall include the capability of supporting voice and TTY communication with the residential dwelling unit interface.
708.4.2 Residential Dwelling Unit Interface. The residential dwelling unit system interface shall include a telephone jack capable of supporting voice and TTY communication with the common use or public use system interface.
801.1 Scope. The provisions of Chapter 8 shall apply where required by Chapter 2 or where referenced by a requirement in this document.
802.1 Wheelchair Spaces. Wheelchair spaces shall comply with 802.1.
802.1.1 Floor or Ground Surface. The floor or ground surface of wheelchair spaces shall comply with 302. Changes in level are not permitted.
802.1.2 Width. A single wheelchair space shall be 36 inches (915 mm) wide minimum. Where two adjacent wheelchair spaces are provided, each wheelchair space shall be 33 inches (840 mm) wide minimum.
802.1.3 Depth. Where a wheelchair space can be entered from the front or rear, the wheelchair space shall be 48 inches (1220 mm) deep minimum. Where a wheelchair space can be entered only from the side, the wheelchair space shall be 60 inches (1525 mm) deep minimum.
802.1.4 Approach. Wheelchair spaces shall adjoin accessible routes. Accessible routes shall not overlap wheelchair spaces.
802.1.5 Overlap. Wheelchair spaces shall not overlap circulation paths.
802.2 Lines of Sight. Lines of sight to the screen, performance area, or playing field for spectators in wheelchair spaces shall comply with 802.2.
802.2.1 Lines of Sight Over Seated Spectators. Where spectators are expected to remain seated during events, spectators in wheelchair spaces shall be afforded lines of sight complying with 802.2.1.
802.2.1.1 Lines of Sight Over Heads. Where spectators are provided lines of sight over the heads of spectators seated in the first row in front of their seats, spectators seated in wheelchair spaces shall be afforded lines of sight over the heads of seated spectators in the first row in front of wheelchair spaces.
802.2.1.2 Lines of Sight Between Heads. Where spectators are provided lines of sight over the shoulders and between the heads of spectators seated in the first row in front of their seats, spectators seated in wheelchair spaces shall be afforded lines of sight over the shoulders and between the heads of seated spectators in the first row in front of wheelchair spaces.
802.2.2 Lines of Sight Over Standing Spectators. Where spectators are expected to stand during events, spectators in wheelchair spaces shall be afforded lines of sight complying with 802.2.2.
802.2.2.1 Lines of Sight Over Heads. Where standing spectators are provided lines of sight over the heads of spectators standing in the first row in front of their seats, spectators seated in wheelchair spaces shall be afforded lines of sight over the heads of standing spectators in the first row in front of wheelchair spaces.
802.2.2.2 Lines of Sight Between Heads. Where standing spectators are provided lines of sight over the shoulders and between the heads of spectators standing in the first row in front of their seats, spectators seated in wheelchair spaces shall be afforded lines of sight over the shoulders and between the heads of standing spectators in the first row in front of wheelchair spaces.
802.3 Companion Seats. Companion seats shall comply with 802.3.
802.3.1 Alignment. In row seating, companion seats shall be located to provide shoulder alignment with adjacent wheelchair spaces. The shoulder alignment point of the wheelchair space shall be measured 36 inches (915 mm) from the front of the wheelchair space. The floor surface of the companion seat shall be at the same elevation as the floor surface of the wheelchair space.
802.3.2 Type. Companion seats shall be equivalent in size, quality, comfort, and amenities to the seating in the immediate area. Companion seats shall be permitted to be movable.
802.4 Designated Aisle Seats. Designated aisle seats shall comply with 802.4.
802.4.1 Armrests. Where armrests are provided on the seating in the immediate area, folding or retractable armrests shall be provided on the aisle side of the seat.
802.4.2 Identification. Each designated aisle seat shall be identified by a sign or marker.
803.1 General. Dressing, fitting, and locker rooms shall comply with 803.
803.2 Turning Space. Turning space complying with 304 shall be provided within the room.
803.3 Door Swing. Doors shall not swing into the room unless a clear floor or ground space complying with 305.3 is provided beyond the arc of the door swing.
803.4 Benches. A bench complying with 903 shall be provided within the room.
803.5 Coat Hooks and Shelves. Coat hooks provided within the room shall be located within one of the reach ranges specified in 308. Shelves shall be 40 inches (1015 mm) minimum and 48 inches (1220 mm) maximum above the finish floor or ground.
804.1 General. Kitchens and kitchenettes shall comply with 804.
804.2 Clearance. Where a pass through kitchen is provided, clearances shall comply with 804.2.1. Where a U-shaped kitchen is provided, clearances shall comply with 804.2.2.
804.2.1 Pass Through Kitchen. In pass through kitchens where counters, appliances or cabinets are on two opposing sides, or where counters, appliances or cabinets are opposite a parallel wall, clearance between all opposing base cabinets, counter tops, appliances, or walls within kitchen work areas shall be 40 inches (1015 mm) minimum. Pass through kitchens shall have two entries.
804.2.2 U-Shaped. In U-shaped kitchens enclosed on three contiguous sides, clearance between all opposing base cabinets, counter tops, appliances, or walls within kitchen work areas shall be 60 inches (1525 mm) minimum.
804.3 Kitchen Work Surface. In residential dwelling units required to provide mobility features complying with 809.2, at least one 30 inch (760 mm) wide minimum section of counter shall provide a kitchen work surface that complies with 804.3.
EXCEPTION: In emergency transportable housing units, a work surface complying with 804.3 shall not be required provided that the following criteria are met:
(a) A kitchen table complying with 902 is provided within the kitchen;
(b) An electrical outlet is provided at a location within reach of the table; and
(c) All kitchen countertops are 34 inches high maximum.
804.3.1 Clear Floor or Ground Space. A clear floor space complying with 305 positioned for a forward approach shall be provided. The clear floor or ground space shall be centered on the kitchen work surface and shall provide knee and toe clearance complying with 306.
(a) The cabinetry can be removed without removal or replacement of the kitchen work surface;
(b) the finish floor extends under the cabinetry; and
(c) the walls behind and surrounding the cabinetry are finished.
804.3.2 Height. The kitchen work surface shall be 34 inches (865 mm) maximum above the finish floor or ground.
804.3.3 Exposed Surfaces. There shall be no sharp or abrasive surfaces under the work surface counters.
804.4 Sinks. Sinks shall comply with 606.
804.5 Storage. At least 50 percent of shelf space in storage facilities shall comply with 811.
804.6 Appliances. Where provided, kitchen appliances shall comply with 804.6.
804.6.1 Clear Floor or Ground Space. A clear floor or ground space complying with 305 shall be provided at each kitchen appliance. Clear floor or ground spaces shall be permitted to overlap.
804.6.2 Operable Parts. All appliance controls shall comply with 309.
2. Bottom-hinged appliance doors, when in the open position, shall not be required to comply with 309.3.
804.6.3 Dishwasher. Clear floor or ground space shall be positioned adjacent to the dishwasher door. The dishwasher door, in the open position, shall not obstruct the clear floor or ground space for the dishwasher or the sink.
804.6.4 Range or Cooktop. Where a forward approach is provided, the clear floor or ground space shall provide knee and toe clearance complying with 306. Where knee and toe space is provided, the underside of the range or cooktop shall be insulated or otherwise configured to prevent burns, abrasions, or electrical shock. The location of controls shall not require reaching across burners.
804.6.5 Oven. Ovens shall comply with 804.6.5.
804.6.5.1 Side-Hinged Door Ovens. Side-hinged door ovens shall have the work surface required by 804.3 positioned adjacent to the latch side of the oven door.
804.6.5.2 Bottom-Hinged Door Ovens. Bottom-hinged door ovens shall have the work surface required by 804.3 positioned adjacent to one side of the door.
804.6.5.3 Controls. Ovens shall have controls on front panels.
804.6.6 Refrigerator/Freezer. Combination refrigerators and freezers shall have at least 50 percent of the freezer space 54 inches (1370 mm) maximum above the finish floor or ground. The clear floor or ground space shall be positioned for a parallel approach to the space dedicated to a refrigerator/freezer with the centerline of the clear floor or ground space offset 24 inches (610 mm) maximum from the centerline of the dedicated space.
805.1 General. Medical care facility and long-term care facility patient or resident sleeping rooms required to provide mobility features shall comply with 805.
805.2 Turning Space. Turning space complying with 304 shall be provided within the room.
805.3 Clear Floor or Ground Space. A clear floor space complying with 305 shall be provided on each side of the bed. The clear floor space shall be positioned for parallel approach to the side of the bed.
805.4 Toilet and Bathing Rooms. Toilet and bathing rooms that are provided as part of a patient or resident sleeping room shall comply with 603. Where provided, no fewer than one water closet, one lavatory, and one bathtub or shower shall comply with the applicable requirements of 603 through 610.
806.1 General. Transient lodging guest rooms shall comply with 806. Guest rooms required to provide mobility features shall comply with 806.2. Guest rooms required to provide communication features shall comply with 806.3.
806.2 Guest Rooms with Mobility Features. Guest rooms required to provide mobility features shall comply with 806.2.
806.2.1 Living and Dining Areas. Living and dining areas shall be accessible.
806.2.2 Exterior Spaces. Exterior spaces, including patios, terraces and balconies, that serve the guest room shall be accessible.
806.2.3 Sleeping Areas. At least one sleeping area shall provide a clear floor space complying with 305 on both sides of a bed. The clear floor space shall be positioned for parallel approach to the side of the bed.
806.2.4 Toilet and Bathing Facilities. At least one bathroom that is provided as part of a guest room shall comply with 603. No fewer than one water closet, one lavatory, and one bathtub or shower shall comply with applicable requirements of 603 through 610. In addition, required roll-in shower compartments shall comply with 608.2.2 or 608.2.3. Toilet and bathing fixtures required to comply with 603 through 610 shall be permitted to be located in more than one toilet or bathing area, provided that travel between fixtures does not require travel between other parts of the guest room.
806.2.4.1 Vanity Counter Top Space. If vanity counter top space is provided in non-accessible guest toilet or bathing rooms, comparable vanity counter top space, in terms of size and proximity to the lavatory, shall also be provided in accessible guest toilet or bathing rooms.
806.2.5 Kitchens and Kitchenettes. Kitchens and kitchenettes shall comply with 804.
806.2.6 Turning Space. Turning space complying with 304 shall be provided within the guest room.
806.3 Guest Rooms with Communication Features. Guest rooms required to provide communication features shall comply with 806.3.
806.3.1 Alarms. Where emergency warning systems are provided, alarms complying with 702 shall be provided.
806.3.2 Notification Devices. Visible notification devices shall be provided to alert room occupants of incoming telephone calls and a door knock or bell. Notification devices shall not be connected to visible alarm signal appliances. Telephones shall have volume controls compatible with the telephone system and shall comply with 704.3. Telephones shall be served by an electrical outlet complying with 309 located within 48 inches (1220 mm) of the telephone to facilitate the use of a TTY.
807.1 General. Holding cells and housing cells shall comply with 807.
807.2 Cells with Mobility Features. Cells required to provide mobility features shall comply with 807.2.
807.2.1 Turning Space. Turning space complying with 304 shall be provided within the cell.
807.2.2 Benches. Where benches are provided, at least one bench shall comply with 903.
807.2.3 Beds. Where beds are provided, clear floor space complying with 305 shall be provided on at least one side of the bed. The clear floor space shall be positioned for parallel approach to the side of the bed.
807.2.4 Toilet and Bathing Facilities. Toilet facilities or bathing facilities that are provided as part of a cell shall comply with 603. Where provided, no fewer than one water closet, one lavatory, and one bathtub or shower shall comply with the applicable requirements of 603 through 610.
807.3 Cells with Communication Features. Cells required to provide communication features shall comply with 807.3.
807.3.1 Alarms. Where audible emergency alarm systems are provided to serve the occupants of cells, visible alarms complying with 702 shall be provided.
807.3.2 Telephones. Telephones, where provided within cells, shall have volume controls complying with 704.3.
808.1 General. Courtrooms shall comply with 808.
808.2 Turning Space. Where provided, areas that are raised or depressed and accessed by ramps or platform lifts with entry ramps shall provide unobstructed turning space complying with 304.
808.3 Clear Floor Space. Each jury box and witness stand shall have, within its defined area, clear floor space complying with 305.
808.4 Judges’ Benches and Courtroom Stations. Judges’ benches, clerks’ stations, bailiffs’ stations, deputy clerks’ stations, court reporters’ stations and litigants’ and counsel stations shall comply with 902.
809.1 General. Residential dwelling units shall comply with 809. Residential dwelling units required to provide mobility features shall comply with 809.2. Residential dwelling units required to provide communication features shall comply with 809.3.
809.2 Residential Dwelling Units with Mobility Features. Residential dwelling units required to provide mobility features shall comply with 809.2.
809.2.1 Accessible Routes. Accessible routes complying with Chapter 4 shall be provided within residential dwelling units in accordance with 809.2.1.
809.2.1.1 Location. At least one accessible route shall connect all spaces and elements that are a part of the residential dwelling unit. Where only one accessible route is provided, it shall not pass through bathrooms, closets, or similar spaces.
809.2.1.2 Floor Surfaces. Within emergency transportable housing units, carpet shall not be provided on floor surfaces.
809.2.2 Turning Space. All rooms served by an accessible route shall provide a turning space complying with 304.
809.2.3 Kitchen. Where a kitchen is provided, it shall comply with 804.
809.2.4 Toilet Facilities and Bathing Facilities. At least one bathroom shall comply with 603. No fewer than one of each type of fixture provided shall comply with applicable requirements of 603 through 610. Toilet and bathing fixtures required to comply with 603 through 610 shall be located in the same toilet and bathing area, such that travel between fixtures does not require travel between other parts of residential dwelling unit.
809.2.5 Bedrooms in Emergency Transportable Housing Units. Bedrooms in emergency transportable housing units shall comply with 809.2.5.
809.2.5.1 Clear Floor Space. A clear floor space complying with 305 shall be provided on one side of a bed. The clear floor space shall be positioned for parallel approach to the side of the bed and shall be on an accessible route.
809.2.5.2 Furniture. Where bedrooms are less than 70 square feet, furniture supplied with the unit shall not overlap the accessible route, maneuvering clearances required at doors, and turning space.
809.2.5.3 Lighting Controls. A means to control at least one source of bedroom lighting from the bed shall be provided.
809.2.6 Weather Alert Systems. Where provided in emergency transportable housing units, weather alert systems shall comply with 309.1 through 309.3.
809.3 Residential Dwelling Units with Communication Features. Residential dwelling units required to provide communication features shall comply with 809.3.
809.3.1 Alarms. Alarms shall comply and 809.3.1. The same visible notification appliances shall be permitted to provide notification of building fire alarm and residential dwelling unit smoke alarm activation. Visible notification appliances used to indicate building fire alarm or residential dwelling unit smoke alarm activation shall not be used for any other purpose within the residential dwelling unit.
809.3.1.1 Building Fire Alarm System. Where a building fire alarm system is provided, the system wiring shall be extended to a point within the residential dwelling unit in the vicinity of the residential dwelling unit smoke alarm system. Notification appliances provided within a residential dwelling unit as part of the building fire alarm system shall comply with NFPA 72 (1999 or 2002 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1).
809.3.1.2 Residential Dwelling Unit Smoke Alarms. Residential dwelling unit smoke alarms shall provide combination smoke alarms and visible notification appliances complying with NFPA 72 (1999 or 2002 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1). Combination smoke alarms and visible notification appliances shall be supplied with power from one or more power sources as follows:
(a) A commercial light and power source along with a secondary power source; or
(b) A non-commercial alternating current (ac) power source along with a secondary power source.
809.3.1.3 Activation. All visible notification appliances within the residential dwelling unit providing notification of a building fire alarm shall be activated upon activation of the building fire alarm in the portion of the building containing the residential dwelling unit. All combination smoke alarms and visible notification appliances within the residential dwelling unit shall be activated upon smoke detection.
809.3.2 Residential Dwelling Unit Primary Entrance. Communication features shall be provided at the residential dwelling unit primary entrance and shall comply with 809.3.2.
809.3.2.1 Notification. A hardwired electric doorbell shall be provided. A button or switch shall be provided outside the residential dwelling unit primary entrance. Activation of the button or switch shall initiate an audible tone and visible signal within the residential dwelling unit. Where visible doorbell signals are located in sleeping areas, they shall have controls to deactivate the signal.
809.3.2.2 Identification. A means for visually identifying a visitor without opening the residential dwelling unit entry door shall be provided and shall allow for a minimum 180 degree range of view.
809.3.3 Site, Building, or Floor Entrance. Where a system, including a closed-circuit system, permitting voice communication between a visitor and the occupant of the residential dwelling unit is provided, the system shall comply with 708.4.
809.3.4 Weather Alert Systems. Where provided in emergency transportable housing units, weather alert systems shall provide audible and visual output.
810.1 General. Transportation facilities shall comply with 810.
810.2 Bus Boarding and Alighting Areas. Bus boarding and alighting areas shall comply with 810.2.
810.2.1 Surface. Bus stop boarding and alighting areas shall have a firm, stable surface.
810.2.2 Dimensions. Bus stop boarding and alighting areas shall provide a clear length of 96 inches (2440 mm) minimum, measured perpendicular to the curb or vehicle roadway edge, and a clear width of 60 inches (1525 mm) minimum, measured parallel to the vehicle roadway.
810.2.3 Connection. Bus stop boarding and alighting areas shall be connected to streets, sidewalks, or pedestrian paths by an accessible route complying with 402.
810.2.4 Slope. Parallel to the roadway, the slope of the bus stop boarding and alighting area shall be the same as the roadway, to the maximum extent practicable. Perpendicular to the roadway, the slope of the bus stop boarding and alighting area shall not be steeper than 1:48.
810.3 Bus Shelters. Bus shelters shall provide a minimum clear floor or ground space complying with 305 entirely within the shelter. Bus shelters shall be connected by an accessible route complying with 402 to a boarding and alighting area complying with 810.2.
810.4 Bus Signs. Bus route identification signs shall comply with 703.5.1 through 703.5.4, and 703.5.7 and 703.5.8. In addition, to the maximum extent practicable, bus route identification signs shall comply with 703.5.5.
810.5 Rail Platforms. Rail platforms shall comply with 810.5.
810.5.1 Slope. Rail platforms shall not exceed a slope of 1:48 in all directions.
810.5.2 Detectable Warnings. Platform boarding edges not protected by platform screens or guards shall have detectable warnings complying with 705 along the full length of the public use area of the platform.
810.5.3 Platform and Vehicle Floor Coordination. Station platforms shall be positioned to coordinate with vehicles in accordance with the applicable requirements of 36 CFR Part 1192. Low-level platforms shall be 8 inches (205 mm) minimum above top of rail.
810.6 Rail Station Signs. Rail station signs shall comply with 810.6.
EXCEPTION. Signs shall not be required to comply with 810.6.1 and 810.6.2 where audible signs are remotely transmitted to hand-held receivers, or are user- or proximity-actuated.
810.6.1 Entrances. Where signs identify a station or its entrance, at least one sign at each entrance shall comply with 703.2 and shall be placed in uniform locations to the maximum extent practicable. Where signs identify a station that has no defined entrance, at least one sign shall comply with 703.2 and shall be placed in a central location.
810.6.2 Routes and Destinations. Lists of stations, routes and destinations served by the station which are located on boarding areas, platforms, or mezzanines shall comply with 703.5. At least one tactile sign identifying the specific station and complying with 703.2 shall be provided on each platform or boarding area. Signs covered by this requirement shall, to the maximum extent practicable, be placed in uniform locations within the system.
810.6.3 Station Names. Stations covered by this section shall have identification signs complying with 703.5. Signs shall be clearly visible and within the sight lines of standing and sitting passengers from within the vehicle on both sides when not obstructed by another vehicle.
810.7 Public Address Systems. Where public address systems convey audible information to the public, the same or equivalent information shall be provided in a visual format.
810.8 Clocks. Where clocks are provided for use by the public, the clock face shall be uncluttered so that its elements are clearly visible. Hands, numerals and digits shall contrast with the background either light-on-dark or dark-on-light. Where clocks are installed overhead, numerals and digits shall comply with 703.5.
810.9 Escalators. Where provided, escalators shall comply with the sections 6.1.3.5.6 and 6.1.3.6.5 of ASME A17.1 (incorporated by reference, see “Referenced Standards” in Chapter 1) and shall have a clear width of 32 inches (815 mm) minimum.
810.10 Track Crossings. Where a circulation path serving boarding platforms crosses tracks, it shall comply with 402.
811.1 General. Storage shall comply with 811.
811.2 Clear Floor or Ground Space. A clear floor or ground space complying with 305 shall be provided.
811.3 Height. Storage elements shall comply with at least one of the reach ranges specified in 308.
811.4 Operable Parts. Operable parts shall comply with 309.
901.1 Scope. The provisions of Chapter 9 shall apply where required by Chapter 2 or where referenced by a requirement in this document.
902.1 General. Dining surfaces and work surfaces shall comply with 902.2 and 902.3.
902.2 Clear Floor or Ground Space. A clear floor space complying with 305 positioned for a forward approach shall be provided. Knee and toe clearance complying with 306 shall be provided.
902.3 Height. The tops of dining surfaces and work surfaces shall be 28 inches (710 mm) minimum and 34 inches (865 mm) maximum above the finish floor or ground.
902.4 Dining Surfaces and Work Surfaces for Children’s Use. Accessible dining surfaces and work surfaces for children’s use shall comply with 902.4.
902.4.1 Clear Floor or Ground Space. A clear floor space complying with 305 positioned for forward approach shall be provided. Knee and toe clearance complying with 306 shall be provided, except that knee clearance 24 inches (610 mm) minimum above the finish floor or ground shall be permitted.
902.4.2 Height. The tops of tables and counters shall be 26 inches (660 mm) minimum and 30 inches (760 mm) maximum above the finish floor or ground.
903.1 General. Benches shall comply with 903.
903.2 Clear Floor or Ground Space. Clear floor or ground space complying with 305 shall be provided and shall be positioned at the end of the bench seat and parallel to the short axis of the bench.
903.3 Size. Benches shall have seats that are 42 inches (1065 mm) long minimum and 20 inches (510 mm) deep minimum and 24 inches (610 mm) deep maximum.
903.4 Back Support. The bench shall provide for back support or shall be affixed to a wall. Back support shall be 42 inches (1065 mm) long minimum and shall extend from a point 2 inches (51 mm) maximum above the seat surface to a point 18 inches (455 mm) minimum above the seat surface. Back support shall be 2
903.5 Height. The top of the bench seat surface shall be 17 inches (430 mm) minimum and 19 inches (485 mm) maximum above the finish floor or ground.
903.6 Structural Strength. Allowable stresses shall not be exceeded for materials used when a vertical or horizontal force of 250 pounds (1112 N) is applied at any point on the seat, fastener, mounting device, or supporting structure.
903.7 Wet Locations. Where installed in wet locations, the surface of the seat shall be slip resistant and shall not accumulate water.
904.1 General. Check-out aisles and sales and service counters shall comply with the applicable requirements of 904.
904.2 Approach. All portions of counters required to comply with 904 shall be located adjacent to a walking surface complying with 403.
904.3 Check-Out Aisles. Check-out aisles shall comply with 904.3.
904.3.1 Aisle. Aisles shall comply with 403.
904.3.2 Counter. The counter surface height shall be 38 inches (965 mm) maximum above the finish floor or ground. The top of the counter edge protection shall be 2 inches (51 mm) maximum above the top of the counter surface on the aisle side of the check-out counter.
904.3.3 Check Writing Surfaces. Where provided, check writing surfaces shall comply with 902.3.
904.4 Sales and Service Counters. Sales counters and service counters shall comply with 904.4.1 or 904.4.2. The accessible portion of the counter top shall extend the same depth as the sales or service counter top.
904.4.1 Parallel Approach. A portion of the counter surface that is 36 inches (915 mm) long minimum and 36 inches (915 mm) high maximum above the finish floor shall be provided. A clear floor or ground space complying with 305 shall be positioned for a parallel approach adjacent to the 36 inch (915 mm) minimum length of counter.
904.4.2 Forward Approach. A portion of the counter surface that is 30 inches (760 mm) long minimum and 36 inches (915 mm) high maximum shall be provided. Knee and toe space complying with 306 shall be provided under the counter. A clear floor or ground space complying with 305 shall be positioned for a forward approach to the counter.
904.5 Food Service Lines. Counters in food service lines shall comply with 904.5.
904.5.1 Self-Service Shelves and Dispensing Devices. Self-service shelves and dispensing devices for tableware, dishware, condiments, food and beverages shall comply with 308.
904.5.2 Tray Slides. The tops of tray slides shall be 28 inches (710 mm) minimum and 34 inches (865 mm) maximum above the finish floor or ground.
904.6 Security Glazing. Where counters or teller windows have security glazing to separate personnel from the public, a method to facilitate voice communication shall be provided. Telephone handset devices, if provided, shall comply with 704.3.
1001.1 Scope. The provisions of Chapter 10 shall apply where required by Chapter 2 or where referenced by a requirement in this document.
1002.1 General. Amusement rides shall comply with 1002.
1002.2 Accessible Routes. Accessible routes serving amusement rides shall comply with Chapter 4.
2. In load or unload areas and on amusement rides, handrails provided along walking surfaces complying with 403 and required on ramps complying with 405 shall not be required to comply with 505 where compliance is not structurally or operationally feasible.
1002.3 Load and Unload Areas. A turning space complying with 304.2 and 304.3 shall be provided in load and unload areas.
1002.4 Wheelchair Spaces in Amusement Rides. Wheelchair spaces in amusement rides shall comply with 1002.4.
1002.4.1 Floor or Ground Surface. The floor or ground surface of wheelchair spaces shall be stable and firm.
1002.4.2 Slope. The floor or ground surface of wheelchair spaces shall have a slope not steeper than 1:48 when in the load and unload position.
1002.4.3 Gaps. Floors of amusement rides with wheelchair spaces and floors of load and unload areas shall be coordinated so that, when amusement rides are at rest in the load and unload position, the vertical difference between the floors shall be within plus or minus
1002.4.4 Clearances. Clearances for wheelchair spaces shall comply with 1002.4.4.
2. Wheelchair spaces shall be permitted to be mechanically or manually repositioned.
3. Wheelchair spaces shall not be required to comply with 307.4.
1002.4.4.1 Width and Length. Wheelchair spaces shall provide a clear width of 30 inches (760 mm) minimum and a clear length of 48 inches (1220 mm) minimum measured to 9 inches (230 mm) minimum above the floor surface.
1002.4.4.2 Side Entry. Where wheelchair spaces are entered only from the side, amusement rides shall be designed to permit sufficient maneuvering clearance for individuals using a wheelchair or mobility aid to enter and exit the ride.
1002.4.4.3 Permitted Protrusions in Wheelchair Spaces. Objects are permitted to protrude a distance of 6 inches (150 mm) maximum along the front of the wheelchair space, where located 9 inches (230 mm) minimum and 27 inches (685 mm) maximum above the floor or ground surface of the wheelchair space. Objects are permitted to protrude a distance of 25 inches (635 mm) maximum along the front of the wheelchair space, where located more than 27 inches (685 mm) above the floor or ground surface of the wheelchair space.
1002.4.5 Ride Entry. Openings providing entry to wheelchair spaces on amusement rides shall be 32 inches (815 mm) minimum clear.
1002.4.6 Approach. One side of the wheelchair space shall adjoin an accessible route when in the load and unload position.
1002.4.7 Companion Seats. Where the interior width of the amusement ride is greater than 53 inches (1345 mm), seating is provided for more than one rider, and the wheelchair is not required to be centered within the amusement ride, a companion seat shall be provided for each wheelchair space.
1002.4.7.1 Shoulder-to-Shoulder Seating. Where an amusement ride provides shoulder-to-shoulder seating, companion seats shall be shoulder-to-shoulder with the adjacent wheelchair space.
1002.5 Amusement Ride Seats Designed for Transfer. Amusement ride seats designed for transfer shall comply with 1002.5 when positioned for loading and unloading.
1002.5.1 Clear Floor or Ground Space. A clear floor or ground space complying with 305 shall be provided in the load and unload area adjacent to the amusement ride seats designed for transfer.
1002.5.2 Transfer Height. The height of amusement ride seats designed for transfer shall be 14 inches (355 mm) minimum and 24 inches (610 mm) maximum measured from the surface of the load and unload area.
1002.5.3 Transfer Entry. Where openings are provided for transfer to amusement ride seats, the openings shall provide clearance for transfer from a wheelchair or mobility aid to the amusement ride seat.
1002.5.4 Wheelchair Storage Space. Wheelchair storage spaces complying with 305 shall be provided in or adjacent to unload areas for each required amusement ride seat designed for transfer and shall not overlap any required means of egress or accessible route.
1002.6 Transfer Devices for Use with Amusement Rides. Transfer devices for use with amusement rides shall comply with 1002.6 when positioned for loading and unloading.
1002.6.1 Clear Floor or Ground Space. A clear floor or ground space complying with 305 shall be provided in the load and unload area adjacent to the transfer device.
1002.6.2 Transfer Height. The height of transfer device seats shall be 14 inches (355 mm) minimum and 24 inches (610 mm) maximum measured from the load and unload surface.
1002.6.3 Wheelchair Storage Space. Wheelchair storage spaces complying with 305 shall be provided in or adjacent to unload areas for each required transfer device and shall not overlap any required means of egress or accessible route.
1003.1 General. Recreational boating facilities shall comply with 1003.
1003.2 Accessible Routes. Accessible routes serving recreational boating facilities, including gangways and floating piers, shall comply with Chapter 4 except as modified by the exceptions in 1003.2.
1003.2.1 Boat Slips. Accessible routes serving boat slips shall be permitted to use the exceptions in 1003.2.1.
2. Gangways shall not be required to comply with the maximum rise specified in 405.6.
3. Where the total length of a gangway or series of gangways serving as part of a required accessible route is 80 feet (24 m) minimum, gangways shall not be required to comply with 405.2.
4. Where facilities contain fewer than 25 boat slips and the total length of the gangway or series of gangways serving as part of a required accessible route is 30 feet (9145 mm) minimum, gangways shall not be required to comply with 405.2.
5. Where gangways connect to transition plates, landings specified by 405.7 shall not be required.
6. Where gangways and transition plates connect and are required to have handrails, handrail extensions shall not be required. Where handrail extensions are provided on gangways or transition plates, the handrail extensions shall not be required to be parallel with the ground or floor surface.
7. The cross slope specified in 403.3 and 405.3 for gangways, transition plates, and floating piers that are part of accessible routes shall be measured in the static position.
8. Changes in level complying with 303.3 and 303.4 shall be permitted on the surfaces of gangways and boat launch ramps.
1003.2.2 Boarding Piers at Boat Launch Ramps. Accessible routes serving boarding piers at boat launch ramps shall be permitted to use the exceptions in 1003.2.2.
2. Where the total length of the gangway or series of gangways serving as part of a required accessible route is 30 feet (9145 mm) minimum, gangways shall not be required to comply with 405.2.
3. Where the accessible route serving a floating boarding pier or skid pier is located within a boat launch ramp, the portion of the accessible route located within the boat launch ramp shall not be required to comply with 405.
1003.3 Clearances. Clearances at boat slips and on boarding piers at boat launch ramps shall comply with 1003.3.
1003.3.1 Boat Slip Clearance. Boat slips shall provide clear pier space 60 inches (1525 mm) wide minimum and at least as long as the boat slips. Each 10 feet (3050 mm) maximum of linear pier edge serving boat slips shall contain at least one continuous clear opening 60 inches (1525 mm) wide minimum.
2. Edge protection shall be permitted at the continuous clear openings, provided that it is 4 inches (100 mm) high maximum and 2 inches (51 mm) wide maximum.
3. In existing piers, clear pier space shall be permitted to be located perpendicular to the boat slip and shall extend the width of the boat slip, where the facility has at least one boat slip complying with 1003.3, and further compliance with 1003.3 would result in a reduction in the number of boat slips available or result in a reduction of the widths of existing slips.
1003.3.2 Boarding Pier Clearances. Boarding piers at boat launch ramps shall provide clear pier space 60 inches (1525 mm) wide minimum and shall extend the full length of the boarding pier. Every 10 feet (3050 mm) maximum of linear pier edge shall contain at least one continuous clear opening 60 inches (1525 mm) wide minimum.
2. Edge protection shall be permitted at the continuous clear openings provided that it is 4 inches (100 mm) high maximum and 2 inches (51 mm) wide maximum.
1004.1 Clear Floor Space. Exercise machines and equipment shall have a clear floor space complying with 305 positioned for transfer or for use by an individual seated in a wheelchair. Clear floor or ground spaces required at exercise machines and equipment shall be permitted to overlap.
1005.1 Accessible Routes. Accessible routes serving fishing piers and platforms, including gangways and floating piers, shall comply with Chapter 4.
2. Where the total length of the gangway or series of gangways serving as part of a required accessible route is 30 feet (9145 mm) minimum, gangways shall not be required to comply with 405.2.
1005.2 Railings. Where provided, railings, guards, or handrails shall comply with 1005.2.
1005.2.1 Height. At least 25 percent of the railings, guards, or handrails shall be 34 inches (865 mm) maximum above the ground or deck surface.
1005.2.1.1 Dispersion. Railings, guards, or handrails required to comply with 1005.2.1 shall be dispersed throughout the fishing pier or platform.
1005.3 Edge Protection. Where railings, guards, or handrails complying with 1005.2 are provided, edge protection complying with 1005.3.1 or 1005.3.2 shall be provided.
1005.3.1 Curb or Barrier. Curbs or barriers shall extend 2 inches (51 mm) minimum above the surface of the fishing pier or platform.
1005.3.2 Extended Ground or Deck Surface. The ground or deck surface shall extend 12 inches (305 mm) minimum beyond the inside face of the railing. Toe clearance shall be provided and shall be 30 inches (760 mm) wide minimum and 9 inches (230 mm) minimum above the ground or deck surface beyond the railing.
1005.4 Clear Floor or Ground Space. At each location where there are railings, guards, or handrails complying with 1005.2.1, a clear floor or ground space complying with 305 shall be provided. Where there are no railings, guards, or handrails, at least one clear floor or ground space complying with 305 shall be provided on the fishing pier or platform.
1005.5 Turning Space. At least one turning space complying with 304.3 shall be provided on fishing piers and platforms.
1006.1 General. Golf facilities shall comply with 1006.
1006.2 Accessible Routes. Accessible routes serving teeing grounds, practice teeing grounds, putting greens, practice putting greens, teeing stations at driving ranges, course weather shelters, golf car rental areas, bag drop areas, and course toilet rooms shall comply with Chapter 4 and shall be 48 inches (1220 mm) wide minimum. Where handrails are provided, accessible routes shall be 60 inches (1525 mm) wide minimum.
1006.3 Golf Car Passages. Golf car passages shall comply with 1006.3.
1006.3.1 Clear Width. The clear width of golf car passages shall be 48 inches (1220 mm) minimum.
1006.3.2 Barriers. Where curbs or other constructed barriers prevent golf cars from entering a fairway, openings 60 inches (1525 mm) wide minimum shall be provided at intervals not to exceed 75 yards (69 m).
1006.4 Weather Shelters. A clear floor or ground space 60 inches (1525 mm) minimum by 96 inches (2440 mm) minimum shall be provided within weather shelters.
1007.1 General. Miniature golf facilities shall comply with 1007.
1007.2 Accessible Routes. Accessible routes serving holes on miniature golf courses shall comply with Chapter 4. Accessible routes located on playing surfaces of miniature golf holes shall be permitted to use the exceptions in 1007.2.
2. Where accessible routes intersect playing surfaces of holes, a 1 inch (25 mm) maximum curb shall be permitted for a width of 32 inches (815 mm) minimum.
3. A slope not steeper than 1:4 for a 4 inch (100 mm) maximum rise shall be permitted.
4. Ramp landing slopes specified by 405.7.1 shall be permitted to be 1:20 maximum.
5. Ramp landing length specified by 405.7.3 shall be permitted to be 48 inches (1220 mm) long minimum.
6. Ramp landing size specified by 405.7.4 shall be permitted to be 48 inches (1220 mm) minimum by 60 inches (1525 mm) minimum.
7. Handrails shall not be required on holes. Where handrails are provided on holes, the handrails shall not be required to comply with 505.
1007.3 Miniature Golf Holes. Miniature golf holes shall comply with 1007.3.
1007.3.1 Start of Play. A clear floor or ground space 48 inches (1220 mm) minimum by 60 inches (1525 mm) minimum with slopes not steeper than 1:48 shall be provided at the start of play.
1007.3.2 Golf Club Reach Range Area. All areas within holes where golf balls rest shall be within 36 inches (915 mm) maximum of a clear floor or ground space 36 inches (915 mm) wide minimum and 48 inches (1220 mm) long minimum having a running slope not steeper than 1:20. The clear floor or ground space shall be served by an accessible route.
1008.1 General. Play areas shall comply with 1008.
1008.2 Accessible Routes. Accessible routes serving play areas shall comply with Chapter 4 and 1008.2 and shall be permitted to use the exceptions in 1008.2.1 through 1008.2.3. Where accessible routes serve ground level play components, the vertical clearance shall be 80 inches high (2030 mm) minimum.
1008.2.1 Ground Level and Elevated Play Components. Accessible routes serving ground level play components and elevated play components shall be permitted to use the exceptions in 1008.2.1.
2. Where transfer systems are provided, an elevated play component shall be permitted to connect to another elevated play component as part of an accessible route.
1008.2.2 Soft Contained Play Structures. Accessible routes serving soft contained play structures shall be permitted to use the exception in 1008.2.2.
1008.2.3 Water Play Components. Accessible routes serving water play components shall be permitted to use the exceptions in 1008.2.3.
2. Transfer systems complying with 1008.3 shall be permitted to connect elevated play components in water.
1008.2.4 Clear Width. Accessible routes connecting play components shall provide a clear width complying with 1008.2.4.
1008.2.4.1 Ground Level. At ground level, the clear width of accessible routes shall be 60 inches (1525 mm) minimum.
2. The clear width of accessible routes shall be permitted to be 36 inches (915 mm) minimum for a distance of 60 inches (1525 mm) maximum provided that multiple reduced width segments are separated by segments that are 60 inches (1525 mm) wide minimum and 60 inches (1525 mm) long minimum.
1008.2.4.2 Elevated. The clear width of accessible routes connecting elevated play components shall be 36 inches (915 mm) minimum.
2. The clear width of transfer systems connecting elevated play components shall be permitted to be 24 inches (610 mm) minimum.
1008.2.5 Ramps. Within play areas, ramps connecting ground level play components and ramps connecting elevated play components shall comply with 1008.2.5.
1008.2.5.1 Ground Level. Ramp runs connecting ground level play components shall have a running slope not steeper than 1:16.
1008.2.5.2 Elevated. The rise for any ramp run connecting elevated play components shall be 12 inches (305 mm) maximum.
1008.2.5.3 Handrails. Where required on ramps serving play components, the handrails shall comply with 505 except as modified by 1008.2.5.3.
2. Handrail extensions shall not be required.
1008.2.5.3.1 Handrail Gripping Surfaces. Handrail gripping surfaces with a circular cross section shall have an outside diameter of 0.95 inch (24 mm) minimum and 1.55 inches (39 mm) maximum. Where the shape of the gripping surface is non-circular, the handrail shall provide an equivalent gripping surface.
1008.2.5.3.2 Handrail Height. The top of handrail gripping surfaces shall be 20 inches (510 mm) minimum and 28 inches (710 mm) maximum above the ramp surface.
1008.2.6 Ground Surfaces. Ground surfaces on accessible routes, clear floor or ground spaces, and turning spaces shall comply with 1008.2.6.
1008.2.6.1 Accessibility. Ground surfaces shall comply with ASTM F1951 (incorporated by reference, see “Referenced Standards” in Chapter 1). Ground surfaces shall be inspected and maintained regularly and frequently to ensure continued compliance with ASTM F1951.
1008.2.6.2 Use Zones. Ground surfaces located within use zones shall comply with ASTM F1292 (1999 edition or 2004 edition) (incorporated by reference, see “Referenced Standards” in Chapter 1).
1008.3 Transfer Systems. Where transfer systems are provided to connect to elevated play components, transfer systems shall comply with 1008.3.
1008.3.1 Transfer Platforms. Transfer platforms shall be provided where transfer is intended from wheelchairs or other mobility aids. Transfer platforms shall comply with 1008.3.1.
1008.3.1.1 Size. Transfer platforms shall have level surfaces 14 inches (355 mm) deep minimum and 24 inches (610 mm) wide minimum.
1008.3.1.2 Height. The height of transfer platforms shall be 11 inches (280 mm) minimum and 18 inches (455 mm) maximum measured to the top of the surface from the ground or floor surface.
1008.3.1.3 Transfer Space. A transfer space complying with 305.2 and 305.3 shall be provided adjacent to the transfer platform. The 48 inch (1220 mm) long minimum dimension of the transfer space shall be centered on and parallel to the 24 inch (610 mm) long minimum side of the transfer platform. The side of the transfer platform serving the transfer space shall be unobstructed.
1008.3.1.4 Transfer Supports. At least one means of support for transferring shall be provided.
1008.3.2 Transfer Steps. Transfer steps shall be provided where movement is intended from transfer platforms to levels with elevated play components required to be on accessible routes. Transfer steps shall comply with 1008.3.2.
1008.3.2.1 Size. Transfer steps shall have level surfaces 14 inches (355 mm) deep minimum and 24 inches (610 mm) wide minimum.
1008.3.2.2 Height. Each transfer step shall be 8 inches (205 mm) high maximum.
1008.3.2.3 Transfer Supports. At least one means of support for transferring shall be provided.
1008.4 Play Components. Ground level play components on accessible routes and elevated play components connected by ramps shall comply with 1008.4.
1008.4.1 Turning Space. At least one turning space complying with 304 shall be provided on the same level as play components. Where swings are provided, the turning space shall be located immediately adjacent to the swing.
1008.4.2 Clear Floor or Ground Space. Clear floor or ground space complying with 305.2 and 305.3 shall be provided at play components.
1008.4.3 Play Tables. Where play tables are provided, knee clearance 24 inches (610 mm) high minimum, 17 inches deep (430 mm) minimum, and 30 inches (760 mm) wide minimum shall be provided. The tops of rims, curbs, or other obstructions shall be 31 inches (785 mm) high maximum.
1008.4.4 Entry Points and Seats. Where play components require transfer to entry points or seats, the entry points or seats shall be 11 inches (280 mm) minimum and 24 inches (610 mm) maximum from the clear floor or ground space.
1008.4.5 Transfer Supports. Where play components require transfer to entry points or seats, at least one means of support for transferring shall be provided.
1009.1 General. Where provided, pool lifts, sloped entries, transfer walls, transfer systems, and pool stairs shall comply with 1009.
1009.2 Pool Lifts. Pool lifts shall comply with 1009.2.
1009.2.1 Pool Lift Location. Pool lifts shall be located where the water level does not exceed 48 inches (1220 mm).
2. Where multiple pool lift locations are provided, no more than one pool lift shall be required to be located in an area where the water level is 48 inches (1220 mm) maximum.
1009.2.2 Seat Location. In the raised position, the centerline of the seat shall be located over the deck and 16 inches (405 mm) minimum from the edge of the pool. The deck surface between the centerline of the seat and the pool edge shall have a slope not steeper than 1:48.
1009.2.3 Clear Deck Space. On the side of the seat opposite the water, a clear deck space shall be provided parallel with the seat. The space shall be 36 inches (915 mm) wide minimum and shall extend forward 48 inches (1220 mm) minimum from a line located 12 inches (305 mm) behind the rear edge of the seat. The clear deck space shall have a slope not steeper than 1:48.
1009.2.4 Seat Height. The height of the lift seat shall be designed to allow a stop at 16 inches (405 mm) minimum to 19 inches (485 mm) maximum measured from the deck to the top of the seat surface when in the raised (load) position.
1009.2.5 Seat Width. The seat shall be 16 inches (405 mm) wide minimum.
1009.2.6 Footrests and Armrests. Footrests shall be provided and shall move with the seat. If provided, the armrest positioned opposite the water shall be removable or shall fold clear of the seat when the seat is in the raised (load) position.
1009.2.7 Operation. The lift shall be capable of unassisted operation from both the deck and water levels. Controls and operating mechanisms shall be unobstructed when the lift is in use and shall comply with 309.4.
1009.2.8 Submerged Depth. The lift shall be designed so that the seat will submerge to a water depth of 18 inches (455 mm) minimum below the stationary water level.
1009.2.9 Lifting Capacity. Single person pool lifts shall have a weight capacity of 300 pounds. (136 kg) minimum and be capable of sustaining a static load of at least one and a half times the rated load.
1009.3 Sloped Entries. Sloped entries shall comply with 1009.3.
1009.3.1 Sloped Entries. Sloped entries shall comply with Chapter 4 except as modified in 1109.3.1 through 1109.3.3.
1009.3.2 Submerged Depth. Sloped entries shall extend to a depth of 24 inches (610 mm) minimum and 30 inches (760 mm) maximum below the stationary water level. Where landings are required by 405.7, at least one landing shall be located 24 inches (610 mm) minimum and 30 inches (760 mm) maximum below the stationary water level.
1009.3.3 Handrails. At least two handrails complying with 505 shall be provided on the sloped entry. The clear width between required handrails shall be 33 inches (840 mm) minimum and 38 inches (965 mm) maximum.
2. Where a sloped entry is provided for wave action pools, leisure rivers, sand bottom pools, and other pools where user access is limited to one area, the handrails shall not be required to comply with the clear width requirements of 1009.3.3.
3. Sloped entries in wading pools shall not be required to provide handrails complying with 1009.3.3. If provided, handrails on sloped entries in wading pools shall not be required to comply with 505.
1009.4 Transfer Walls. Transfer walls shall comply with 1009.4.
1009.4.1 Clear Deck Space. A clear deck space of 60 inches (1525 mm) minimum by 60 inches (1525 mm) minimum with a slope not steeper than 1:48 shall be provided at the base of the transfer wall. Where one grab bar is provided, the clear deck space shall be centered on the grab bar. Where two grab bars are provided, the clear deck space shall be centered on the clearance between the grab bars.
1009.4.2 Height. The height of the transfer wall shall be 16 inches (405 mm) minimum and 19 inches (485 mm) maximum measured from the deck.
1009.4.3 Wall Depth and Length. The depth of the transfer wall shall be 12 inches (305 mm) minimum and 16 inches (405 mm) maximum. The length of the transfer wall shall be 60 inches (1525 mm) minimum and shall be centered on the clear deck space.
1009.4.4 Surface. Surfaces of transfer walls shall not be sharp and shall have rounded edges.
1009.4.5 Grab Bars. At least one grab bar complying with 609 shall be provided on the transfer wall. Grab bars shall be perpendicular to the pool wall and shall extend the full depth of the transfer wall. The top of the gripping surface shall be 4 inches (100 mm) minimum and 6 inches (150 mm) maximum above transfer walls. Where one grab bar is provided, clearance shall be 24 inches (610 mm) minimum on both sides of the grab bar. Where two grab bars are provided, clearance between grab bars shall be 24 inches (610 mm) minimum.
1009.5 Transfer Systems. Transfer systems shall comply with 1009.5.
1009.5.1 Transfer Platform. A transfer platform shall be provided at the head of each transfer system. Transfer platforms shall provide 19 inches (485 mm) minimum clear depth and 24 inches (610 mm) minimum clear width.
1009.5.2 Transfer Space. A transfer space of 60 inches (1525 mm) minimum by 60 inches (1525 mm) minimum with a slope not steeper than 1:48 shall be provided at the base of the transfer platform surface and shall be centered along a 24 inch (610 mm) minimum side of the transfer platform. The side of the transfer platform serving the transfer space shall be unobstructed.
1009.5.3 Height. The height of the transfer platform shall comply with 1009.4.2.
1009.5.4 Transfer Steps. Transfer step height shall be 8 inches (205 mm) maximum. The surface of the bottom tread shall extend to a water depth of 18 inches (455 mm) minimum below the stationary water level.
1009.5.5 Surface. The surface of the transfer system shall not be sharp and shall have rounded edges.
1009.5.6 Size. Each transfer step shall have a tread clear depth of 14 inches (355 mm) minimum and 17 inches (430 mm) maximum and shall have a tread clear width of 24 inches (610 mm) minimum.
1009.5.7 Grab Bars. At least one grab bar on each transfer step and the transfer platform or a continuous grab bar serving each transfer step and the transfer platform shall be provided. Where a grab bar is provided on each step, the tops of gripping surfaces shall be 4 inches (100 mm) minimum and 6 inches (150 mm) maximum above each step and transfer platform. Where a continuous grab bar is provided, the top of the gripping surface shall be 4 inches (100 mm) minimum and 6 inches (150 mm) maximum above the step nosing and transfer platform. Grab bars shall comply with 609 and be located on at least one side of the transfer system. The grab bar located at the transfer platform shall not obstruct transfer.
1009.6 Pool Stairs. Pool stairs shall comply with 1009.6.
1009.6.1 Pool Stairs. Pool stairs shall comply with 504.
1009.6.2 Handrails. The width between handrails shall be 20 inches (510 mm) minimum and 24 inches (610 mm) maximum. Handrail extensions required by 505.10.3 shall not be required on pool stairs.
1010.1 Turning Space. A circular turning space 60 inches (1525 mm) diameter minimum with slopes not steeper than 1:48 shall be provided at shooting facilities with firing positions.
1011.1 General. All outdoor constructed features shall comply with 1011.2 and 1011.3. Outdoor constructed features specified in 1011.4 through 1011.8 shall comply with those provisions, as applicable.
1011.2 Clear Ground Space. A clear ground space complying with 1011.2 shall be provided at outdoor constructed features.
2. In alterations, when an entity determines that a condition in 1019 does not permit full compliance with a specific provision in 1011.2, the clear ground space shall comply with the provision to the extent practicable.
1011.2.1 Size and Location. The size and location of the clear ground space shall be in accordance with Table 1011.2.1. Unless otherwise specified in Table 1011.2.1, one full unobstructed side of the clear ground space shall adjoin or overlap an outdoor recreation access route or a trail, as applicable, or another clear ground space.
Table 1011.2.1—Clear Ground Space
| Outdoor constructed feature | Minimum size and location |
|---|---|
| Picnic tables | 36 inches (915 mm) on all usable sides of the table measured from the back edge of the benches. |
| Fire rings, grills, fireplaces, and woodstoves | 48 inches (1220 mm) by 48 inches (1220 mm) on all usable sides of the fire ring, grill, fireplace, and woodstove Center the space on each usable side of the grill, fireplace, and woodstove. |
| Trash and recycling receptacles | 36 inches (915 mm) by 48 inches (1220 mm) positioned for forward approach to the receptacle opening; or 30 inches (760 mm) by 60 inches (1525 mm) positioned for a parallel approach to the receptacle opening. |
| Water hydrants | 72 inches (1830 mm) by 48 inches (1220 mm) with the long side of the space adjoining or overlapping an outdoor recreation access route or trail, as applicable, or another clear ground space. |
| Locate the space so that the water spout is 11 inches (280 mm) minimum and 12 inches (305 mm) maximum from the rear center of the long side of the space. | |
| Utility and sewage hookups | 30 inches (760 mm) by 60 inches (1525 mm) with the long side of the space adjoining or overlapping an accessible parking space or pull-up space for recreational vehicles. |
| Locate the space so that the hook-ups are at the rear center of the space. | |
| Bollards or other barriers shall not obstruct the clear ground space in front of the hook-ups. | |
| Outdoor rinsing showers | 60 inches (1525 mm) by 60 inches (1525 mm) centered on the shower heads. |
| Locate the space so that the shower pedestal or wall with the shower head are at the rear end of the space. | |
| Benches | 36 inches (915 mm) by 48 inches (1220 mm) positioned near the bench with one side of the space adjoining an outdoor recreation access route or trail, as applicable. |
| The clear ground space shall not overlap the outdoor recreation access route or trail, or another clear ground space. | |
| Viewing Scopes | 36 inches (915 mm) by 48 inches (1220 mm) positioned for forward approach to the viewing scope. Provide knee and toe clearance complying with 306 under the viewing scope. |
| Locate the space so that the eyepiece is centered on the space. |
1011.2.2 Surface. The surface of the clear ground space shall be firm and stable.
1011.2.3 Slope. The slope of the clear ground space surface shall not be steeper than 1:48 in any direction.
1011.2.4 Openings. Openings in the clear ground space surface shall not allow the passage of a sphere more than
1011.3 Operable Parts. Operable parts shall comply with 309.3 and 309.4.
2. Trash and recycling receptacles with hinged lids and controls to keep out large animals shall comply with 309.4 to the extent practicable.
3. Dumpster type trash and recycling receptacles shall not be required to comply with 309.3 and 309.4.
4. Sewage hatches shall not be required to comply with 309.3 and 309.4.
1011.4 Picnic Tables. Picnic tables shall comply with 1011.4.
1011.4.1 Height. The tops of picnic tables shall comply with 902.3.
1011.4.2 Wheelchair Space. Picnic tables shall provide at least one wheelchair space for each 24 linear feet (7320 mm) of usable table surface perimeter. Wheelchair spaces shall be 30 inches (760 mm) minimum by 48 inches (1220 mm) minimum. Wheelchair spaces shall be positioned for a forward approach to the table and provide knee and toe clearance complying with 306 under the table.
1011.5 Fire Rings, Grills, Fireplaces, and Wood Stoves. Fire rings, grills, fireplaces, and wood stoves shall comply with 1011.5.
1011.5.1 Fire Building Surfaces. Fire building surfaces shall be 9 inches (230 mm) minimum above the ground.
1011.5.2 Cooking Surfaces. Where provided, cooking surfaces shall be 15 inches (380 mm) minimum and 34 inches (865 mm) maximum above the ground.
1011.5.3 Raised Edges or Walls. Where fire rings, grills, or fireplaces are constructed with raised edges or walls, the depth of the raised edge or wall shall be 10 inches (255 mm) maximum.
1011.6 Water Spouts. Water spouts at water hydrants and water utility hook-ups shall be 28 inches (710 mm) minimum and 36 inches (915 mm) maximum above the ground.
1011.7 Outdoor Rinsing Showers. Outdoor rinsing showers shall provide at least one hand-held shower spray unit with a hose 59 inches (1500 mm) long minimum. The hand-held shower spray unit shall have at least one fixed position located 15 inches minimum (380 mm) and 48 inches (1220 mm) maximum above the ground.
1011.8 Viewing Scopes. Eyepieces on viewing scopes shall be 43 inches (1090 mm) minimum and 51 inches (1295 mm) maximum above the ground.
1012.1 General. Parking spaces within camping units and picnic units with mobility features and pull-up spaces for recreational vehicles at dump stations shall comply with 1012.
1012.2 Recreational Vehicles. Parking spaces and pull-up spaces for recreational vehicles shall be 20 feet (6100 mm) wide minimum.
1012.3 Other Vehicles. Parking spaces for vehicles, other than recreational vehicles, shall be 16 feet (4880 mm) wide minimum.
1012.4 Surface. The surface of parking spaces and pull-up spaces shall be firm and stable.
1012.5 Slope. The slope of the surface of parking spaces and pull-up spaces shall not be steeper than 1:48 in any direction.
1013.1 General. Tent pads and tent platforms shall comply with 1013.
1013.2 Clear Ground Space. Clear ground space complying with 1013.2 shall be provided on all usable sides of tent pads and tent platforms.
1013.2.1 Size. The clear ground space shall be 48 inches (1220 mm) wide minimum.
1013.2.2 Surface. The surface of the clear ground space shall be firm and stable. The surface shall allow use of tent stakes and other tent securement devices.
1013.3 Slope. The slope of the surface of tent pads, tent platforms, and clear ground spaces shall not be steeper than 1:48 in any direction.
1013.4 Height. Tent platforms shall be 19 inches (485 mm) high maximum measured from the clear ground space to the tent platform surface.
1014.1 General. Camp shelters shall comply with 1014.
2. Camp shelters shall not be required to comply with 307.
1014.2 Entrance. Camp shelters shall provide an entrance complying with 1014.2.1 or 1014.2.2.
1014.2.1 Transfer Access. Where transfer access is provided at the entrance to a camp shelter, the entrance shall comply with 1014.2.1.
1014.2.1.1 Clear Ground Space. A clear ground space shall be provided at the entrance to the camp shelter. The clear ground space shall be 36 inches (915 mm) minimum by 48 inches (1220 mm) minimum and shall be positioned for a parallel approach to the camp shelter. One full unobstructed side of the clear ground space shall adjoin or overlap an outdoor recreation access route or trail, as applicable, or another clear ground space.
1014.2.1.1.1 Surface. The surface of the clear ground space shall be firm and stable.
1014.2.1.1.2 Slope. The slope of the surface of the clear ground space shall not be steeper than 1:48 in any direction.
1014.2.1.2 Floor Height. The camp shelter floor at the entrance shall be 19 inches (485 mm) high maximum measured from the clear ground space.
1014.2.2 Roll-in Access. Where roll-in access is provided at the entrance to a camp shelter, the entrance shall comply with 1014.2.2.
1014.2.2.1 Level or Sloped Entry Route. Camp shelters providing roll-in access shall have a level or sloped entry route complying 1016 or 1017, as applicable.
1014.2.2.2 Turning Space. A turning space complying with 304.3 shall be provided within the camp shelter.
1014.3 Floor. The floor within camp shelters shall comply with 1014.3.
1014.3.1 Surface. The floor surface shall be firm and stable.
1014.3.2 Slope. The slope of the floor surface shall not be steeper than 1:48 in any direction.
1015.1 General. Viewing areas shall comply with 1015.
1015.2 Clear Ground Space. A clear ground space shall be provided at each distinct viewing location. The clear ground space shall be 36 inches (915 mm) minimum by 48 inches (1220 mm) minimum and shall be positioned for either a forward or parallel approach to the viewing location. One full unobstructed side of the clear ground space shall adjoin or overlap an outdoor recreation access route or trail,