Last updated on March 14th, 2023 at 04:20 pm
Title 22 – Foreign Relations–Volume 1
CHAPTER I – DEPARTMENT OF STATE
SUBCHAPTER A – GENERAL
PART 1 – INSIGNIA OF RANK
§ 1.1 Office of the Secretary of State.
The official flag indicative of the office of Secretary of State shall be as follows: On a blue rectangular field a white disk bearing the official coat of arms of the United States adopted by the act of June 20, 1782, in proper colors. In each of the four corners a white five-pointed star with one point upward. The colors and automobile flag to be the same design, adding a white fringe. For the colors a cord and tassel of blue and white to be added. The sizes to be in accordance with military and naval customs.
§ 1.2 Office of the Deputy Secretary of State.
The official flag indicative of the office of the Deputy Secretary of State shall be as follows: On a white rectangular field a blue disk bearing the official coat of arms of the United States adopted by act of June 20, 1782, in proper colors. In each of the four corners a five-pointed star with one point upward. The colors and automobile flag to be the same design, adding a blue fringe. For the colors a cord and tassel of white in accordance with military and naval customs.
§ 1.3 Office of the Under Secretaries of State.
The official flag indicative of the office of the Under Secretaries of State shall be as follows: On a red rectangular field a white disk bearing the official coat of arms of the United States adopted by act of June 20, 1782, in proper colors. In each of the four corners a white five-pointed star with one point upward. The colors and automobile flag to be the same design, adding a white fringe. For the colors a cord and tassel of white and red to be added. The sizes to be in accordance with military and naval customs.
PART 2 – PROTECTION OF FOREIGN DIGNITARIES AND OTHER OFFICIAL PERSONNEL
§ 2.1 Designation of personnel to carry firearms and exercise appropriate power of arrest.
(a) The Deputy Assistant Secretary of State for Security is authorized to designate certain employees of the Department of State and the Foreign Service, as well as employees of other departments and agencies detailed to and under the supervision and control of the Department of State, as Security Officers, as follows.
(1) Persons so designated shall be authorized to carry firearms when engaged in the performance of the duties prescribed in section (1) of the act of June 28, 1955, 69 Stat. 188, as amended. No person shall be so designated unless he has either qualified in the use of firearms in accordance with standards established by the Deputy Assistant Secretary of State for Security, or in accordance with standards established by the department or agency from which he is detailed.
(2) Persons so designated shall also be authorized, when engaged in the performance of duties prescribed in section (1) of the act of June 28, 1955, 69 Stat. 188, as amended, to arrest without warrant and deliver into custody any person violating the provisions of section 111 or 112 of title 18, United States Code, in their presence or if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.
(b) When the Under Secretary of State for Management determines that it is necessary, persons designated under paragraph (a) of this section shall be authorized to provide protection to an individual who has been designated by the President to serve as Secretary of State, prior to his appointment, or to a departing Secretary of State. In providing such protection, they are authorized to exercise the authorities described in paragraphs (a) (1) and (2) of section. Such protection shall be for the period or periods determined necessary by the Under Secretary of State for Management, except that in the case of a departing Secretary of State, the period of protection under this paragraph shall in no event exceed 30 calendar days from the date of termination of that individual’s incumbency as Secretary of State.
(c) When the Under Secretary of State for Management determines that it is necessary, persons designated under paragraph (a) of this section shall be authorized to provide protection to a departing United States Representative to the United Nations. In providing such protection, they are authorized to exercise the authorities described in paragraphs (a) (1) and (2) of this section. Such protection shall be for the period or periods determined necessary by the Under Secretary of State for Management, except that the period of protection under this paragraph shall in no event exceed 30 calendar days from the date of termination of that individual’s incumbency as United States Representative to the United Nations.
§ 2.2 Purpose.
Section 1116(b)(2) of title 18 of the United States Code, as added by Pub. L. 92-539, An Act for the Protection of Foreign Officials and Official Guests of the United States (86 Stat. 1071), defines the term “foreign official” for purposes of that Act as “any person of a foreign nationality who is duly notified to the United States as an officer or employee of a foreign government or international organization, and who is in the United States on official business, and any member of his family whose presence in the United States is in connection with the presence of such officer or employee.” Section 1116(c)(4) of the same Act defines the term “official guest” for the purposes of that Act as “a citizen or national of a foreign country present in the United States as an official guest of the Government of the United States pursuant to designation as such by the Secretary of State.” It is the purpose of this regulation to specify the officer of the Department of State who shall be responsible for receiving notification of foreign officials under the Act and determining whether persons are “duly notified” to the United States and who shall be responsible for processing official guest designations by the Secretary of State.
§ 2.3 Notification of foreign officials.
(a) Any notification of a foreign official for purposes of section 1116(b)(2) of Title 18 of the United States Code shall be directed by the foreign government or international organization concerned to the Chief of Protocol, Department of State, Washington, DC 20520. For persons normally accredited to the United States in diplomatic or consular capacities and also for persons normally accredited to the United Nations and other international organizations and in turn notified to the Department of State, the procedure for placing a person in the statutory category of being “duly notified to the United States” shall be the current procedure for accreditation, with notification in turn when applicable. The Chief of the Office of Protocol will place on the roster of persons “duly notified to the United States” the names of all persons currently accredited and, when applicable, notified in turn, and will maintain the roster as part of the official files of the Department of State adding to and deleting therefrom as changes in accreditations occur.
(b) For those persons not normally accredited, the Chief of Protocol shall determine upon receipt of notification, by letter from the foreign government or international organization concerned, whether any person who is the subject of such a notification has been duly notified under the Act. Any inquiries by law enforcement officers or other persons as to whether a person has been duly notified shall be directed to the Chief of Protocol. The determination of the Chief of Protocol that a person has been duly notified is final.
§ 2.4 Designation of official guests.
The Chief of Protocol shall also maintain a roster of persons designated by the Secretary of State as official guests. Any inquiries by law enforcement officers or other persons as to whether a person has been so designated shall be directed to the Chief of Protocol. The designation of a person as an official guest is final. Pursuant to section 2658 of title 22 of the U.S.C., the authority of the Secretary of State to perform the function of designation of official guests is hereby delegated to the Chief of Protocol.
§ 2.5 Records.
The Chief of Protocol shall maintain as a part of the official files of the Department of State a cumulative roster of all persons who have been duly notified as foreign officials or designated as official guests under this part. The roster will reflect the name, position, nationality, and foreign government or international organization concerned or purpose of visit as an official guest and reflect the date the person was accorded recognition as being “duly notified to the United States” or designated as an official guest and the date, if any, of termination of such status.
PART 3 – GIFTS AND DECORATIONS FROM FOREIGN GOVERNMENTS
§ 3.1 Purpose.
These regulations provide basic standards for employees of the Department of State, the United States International Development Cooperation Agency (IDCA), the Agency for International Development (AID), and the International Communication Agency (USICA), their spouses (unless separated) and their dependents to accept and retain gifts and decorations from foreign governments.
§ 3.2 Authority.
(a) Section 515(a)(1) of the Foreign Relations Authorization Act of 1978 (91 Stat. 862-866), approved August 17, 1977, (hereafter referred to as “the Act”) amended section 7342 of title 5, U.S. Code (1976), making substantial changes in the law relating to the acceptance and retention of gifts and decorations from foreign governments.
(b) 5 U.S.C. 7342(g) authorizes each employing agency to prescribe regulations as necessary to carry out the new law.
§ 3.3 Definitions.
When used in this part, the following terms have the meanings indicated:
(a) Employee means (1) an officer or employee of the Department, AID, IDCA, or USICA, including an expert or consultant, however appointed, and (2) a spouse (unless separated) or a dependent of such a person, as defined in section 152 of the Internal Revenue Code of 1954 (26 U.S.C. 152).
(b) Foreign government means: (1) Any unit of foreign governmental authority, including any foreign national, State, local, or municipal government; (2) any international or multinational organization whose membership is composed of any unit of foreign government as described in paragraph (b)(1) of this section; (3) any agent or representative of any such unit or organization, while acting as such;
(c) Gift means a tangible or intangible present (other than a decoration) tendered by, or received from, a foreign government;
(d) Decoration means an order, device, medal, badge, insignia, emblem or award tendered by, or received from, a foreign government;
(e) Minimal value means retail value in the United States at the time of acceptance of $100 or less, except that on January 1, 1981, and at 3-year intervals thereafter, “minimal value” is to be redefined in regulations prescribed by the Administrator of General Services, in consultation with the Secretary of State, to reflect changes in the consumer price index for the immediately preceding 3-year period.
§ 3.4 Restriction on acceptance of gifts and decorations.
(a) An employee is prohibited from requesting or otherwise encouraging the tender of a gift or decoration from a foreign government. An employee is also prohibited from accepting a gift or decoration from a foreign government, except in accordance with these regulations.
(b) An employee may accept and retain a gift of minimal value tendered and received as a souvenir or mark of courtesy, subject, however, to the following restrictions –
(1) Where more than one tangible item is included in a single presentation, the entire presentation shall be considered as one gift, and the aggregate value of all items taken together must not exceed “minimal value”.
(2) The donee is responsible for determining that a gift is of minimal value in the United States at the time of acceptance. However, should any dispute result from a difference of opinion concerning the value of a gift, the employing agency will secure the services of an outside appraiser to establish whether the gift is one of “minimal value”. If, after an appraisal has been made, it is established that the value of the gift in question is $200 or more at retail in the United States, the donee will bear the costs of the appraisal. If, however, the appraised value is established to be less than $200, the employing agency will bear the costs.
(c) An employee may accept a gift of more than minimal value when (1) such gift is in the nature of an educational scholarship or medical treatment, or (2) it appears that to refuse the gift would likely cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States, except that a tangible gift of more than minimal value is deemed to have been accepted on behalf of the United States and, upon acceptance, shall become the property of the United States.
(d) An employee may accept gifts of travel or expenses for travel taking place entirely outside the United States (such as transportation, food, and lodging) of more than minimal value if such acceptance is appropriate, consistent with the interests of the United States, and permitted by the employing agency. Except where the employing agency has specific interests which may be favorably affected by employee travel wholly outside the United States, even though it would not normally authorize its employees to engage in such travel, the standards normally applied to determine when proposed travel will be in the best interests of the employing agency and of the United States Government shall be applied in approving acceptance of travel or travel expenses offered by a foreign government.
(1) There are two circumstances under which employees may accept gifts of travel or expenses:
(i) When the employee is issued official travel orders placing him or her in the position of accepting travel or travel expenses offered by a foreign government which are directly related to the authorized purpose of the travel; or
(ii) When the employee’s travel orders specifically anticipate the acceptance of additional travel and travel expenses incident to the authorized travel.
(2) When an employee is traveling under circumstances described in paragraph (d)(1)(i) of this section, that is, without specific instructions authorizing acceptance of additional travel expenses from a foreign government, the employee must file a report with the employing angency under the procedures prescribed in § 3.6.
(e) Since tangible gifts of more than minimal value may not lawfully become the personal property of the donee, all supervisory officials shall, in advising employees of their responsibilities under the regulations, impress upon them their obligation to decline acceptance of such gifts, whenever possible, at the time they are offered, or to return them if they have been sent or delivered without a prior offer. All practical measures, such as periodic briefings, shall be taken to minimize the number of gifts which employees must deposit and which thus become subject to disposal as provided by law and regulation. Employees should not accept gifts of more than minimal value on the assumption that refusal would be likely to “cause offense or embarrassment or otherwise adversely affect the foreign relations of the United States”. In many instances it should be possible, by explanation of the prohibition against an employee’s retention of such gifts, to avoid consequences of acceptance, including possible return of the gift to the donor. Refusal of the gift at the inception should typically be regarded as in the interest both of the foreign government donor and the U.S. Government.
§ 3.5 Designation of officials and offices responsible for administration of foreign gifts and decorations.
(a) The Act effects a significant degree of decentralization of administration relative to the disposal of foreign gifts and decorations which become U.S. Government property. Each agency is now responsible for receiving from its employees deposits of foreign gifts of more than minimal value, as well as of foreign decorations not meeting the statutory criteria for retention by the recipient. The agency is also responsible for disposing of this property by return to the donor, for retaining it in the agency if official use of it is approved, for reporting to the General Services Administration within 30 calendar days after deposit items neither disposed of nor retained, and for assuming custody, proper care and handling of such property pending removal from that custody pursuant to disposal arrangements by the General Services Administration. The Secretary of State, however, is made responsible for providing guidance to other executive agencies in the development of their own regulations to implement the Act, as well as for the annual publication of lists of all gifts of more than minimal value deposited by Federal employees during the preceding year. [See § 3.5(c).] Authority for the discharge of the Secretary’s responsibilities is delegated by these regulations to the Chief of Protocol.
(b) The Office of the Chief of Protocol retains primary responsibility for administration of the Act within the Department of State. That Office will, however, serve as the depository only for those foreign gifts and decorations which are turned in by State Department employees. The Director of Personnel Services of the USICA will have responsibility for administration of the Act within that agency and will serve as the depository of foreign gifts and decorations. Employees of the other foreign affairs agencies must deposit with their respective agencies any gifts or decorations deposit of which is required by law.
(c) Any questions concerning the implementation of these regulations or interpretation of the law should be directed to the following:
(1) For the Department of State, to the Office of Protocol or to the Office of the Assistant Legal Adviser for Management, as appropriate;
(2) For IDCA, to the Office of the General Counsel;
(3) For AID, to the Assistant General Counsel for Employee and Public Affairs; and
(4) For USICA, to the General Counsel.
§ 3.6 Procedure to be followed by employees in depositing gifts of more than minimal value and reporting acceptance of travel or travel expenses.
(a) An employee who has accepted a tangible gift of more than minimal value shall, within 60 days after acceptance, relinquish it to the designated depository office for the employing agency for disposal or, with the approval of that office, deposit it for official use at a designated location in the employing agency or at a specified Foreign Service post. The designated depository offices are:
(1) For the Department of State, the Office of Protocol;
(2) For IDCA, the General Services Division of the Office of Management Planning in AID;
(3) For AID, the General Services Division of the Office of Management Planning; and
(4) For USICA, the Office of Personnel Services.
(b) At the time that an employee deposits gifts of more than minimal value for disposal or for official use pursuant to paragraph (a) of this section, or within 30 days after accepting a gift of travel or travel expenses as provided in § 3.4(d) (unless the gift of such travel or travel expenses has been accepted in accordance with specific instructions from the Department or agency), the employee shall file a statement with the designated depository office with the following information:
(1) For each tangible gift reported:
(i) The name and position of the employee;
(ii) A brief description of the gift and the circumstances justifying acceptance;
(iii) The identity of the foreign government and the name and position of the individual who presented the gift;
(iv) The date of acceptance of the gift;
(v) The donee’s best estimate in specific dollar terms of the value of the gift in the United States at the time of acceptance; and
(vi) Disposition or current location of the gift. (For State Department employees, forms for this purpose are available in the Office of Protocol.)
(2) For each gift of travel or travel expenses:
(i) The name and position of the employee;
(ii) A brief description of the gift and the circumstances justifying acceptance; and
(iii) The identity of the foreign government and the name and position of the individual who presented the gift.
(c) The information contained in the statements called for in paragraph (b) of this section is needed to comply with the statutory requirement that, not later than Janaury 31 of each year, the Secretary of State publish in the
§ 3.7 Decorations.
(a) Decorations tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance may be accepted, retained, and worn by an employee, subject to the approval of the employing agency. Without such approval, the decoration is deemed to have been accepted on behalf of the United States and, like tangible gifts of more than minimal value, must be deposited by the employee with the designated depository office for the employing agency within sixty days after acceptance, for retention for official use or for disposal in accordance with § 3.9.
(b) The decision as to whether a decoration has been awarded for outstanding or unusually meritorious performance will be made:
(1) For the Department of State, by the supervising Assistant Secretary of State or comparable official, except that, in the case of a decoration awarded to an Assistant Secretary or other officer of comparable or higher rank, the decision shall be made by the Office of Protocol;
(2) For IDCA, by the Assistant Director for Administration;
(3) For AID, by the Director of Personnel Management; and
(4) For USICA, by the Supervising Associate Director, the General Counsel, or the Director of the Office of Congressional and Public Liaison (for domestic employees), and by the Director of Area Offices (for overseas employees).
(c) To justify an affirmative decision, a statement from the foreign government, preferably in the form of a citation which shows the specific basis for the tender of the award, should be supplied. An employee who has received or been tendered a decoration should forward to the designated depository office of the employing agency a request for review of the case. This request should contain a statement of circumstances of the award and such documentation from the foreign government as has accompanied it. The depository office will obtain the decision of the cognizant office as to whether the award meets the statutory criteria and thus whether the decoration may be retained and worn. Pending receipt of that decision, the decoration should remain in the custody of the recipient.
§ 3.8 Approval of retention of gifts or decorations with employing agency for official use.
(a) At the request of an overseas post or an office within the employing agency, a gift or decoration deemed to have been accepted on behalf of the United States may be retained for official use. Such retention should be approved:
(1) For the Department of State, by the Chief of Protocol;
(2) For IDCA, by AID’s Director of Management Operations;
(3) For AID, by the Director of Management Operations; and
(4) For USICA, by the Associate Director for Management.
(b) Items approved for official use must be accounted for and safeguarded as Federal property at all times under standard Federal property management procedures. Within 30 days after the official use of a gift has been terminated, the gift or decoration shall be deposited with the designated depository office of the employing agency to be held pending completion of disposal arrangements by the General Services Administration.
§ 3.9 Disposal of gifts and decorations which become the property of the United States.
(a) Gifts and decorations which have been reported to an employing agency shall either be returned to the donor or kept in safe storage pending receipt of instructions from the General Services Administration for transfer, donation or other disposal under the provisions of the Federal Property and Administrative Services Act of 1949, 63 Stat. 377, as amended, and the Federal Property Management Regulations (41 CFR part 101-49). The employing agency shall examine each gift or decoration and the circumstances surrounding its donation and assess whether any adverse effect upon the foreign relations of the United States might result from a return of the gift (or decoration) to the donor, which shall be the preferred means of disposal. If this is not deemed feasible, the employing agency is required by GSA regulations to report deposit of the gift or decoration within 30 calendar days, using Standard Form 120, Report of Excess Personal Property and, as necessary, Standard Form 120A, Continuation Sheet, and citing section 7342 of title 5, U.S. Code (1976), on the reporting document. Such reports shall be submitted to the General Services Administration, Washington National Capital Region (WDPO), Attention: Federal Property Resources Service, Seventh and D Streets, SW., Washington, DC 20407.
(b) No gift or decoration deposited with the General Services Administration for disposal may be sold without the approval of the Secretary of State, upon a determination that the sale will not adversely affect the foreign relations of the United States. When depositing gifts or decorations with the designated depository office of their employing agency, employees may indicate their interest in participating in any subsequent sale of the items by the Government. Before gifts and decorations may be considered for sale by the General Services Administration, however, they must first have been offered for transfer to Federal agencies and for donation to the States. Consequently, employees should understand that there is no assurance that an item will be offered for sale, or, if so offered, that it will be feasible for an employee to participate in the sale. Employees are reminded in this connection that the primary aim of the Act is to discourage employees’ acceptance of gifts of more than minimal value.
§ 3.10 Enforcement.
(a) Each employing agency is responsible under the Act for reporting to the Attorney General cases in which there is reason to believe that one of its employees has violated the Act. The Attorney General in turn may file a civil action in any United States District Court against any Federal employee who has knowingly solicited or accepted a gift from a foreign government in violation of the Act, or who has failed to deposit or report such gift, as an Act required by the Act. In such case, the court may assess a maximum penality of the retail value of a gift improperly solicited or received, plus $5,000.
(b) Supervisory officials at all levels within employing agencies shall be responsible for providing periodic reorientation of all employees under their supervision on the basic features of the Act and these regulations, and for ensuring that those employees observe the requirements for timely reporting and deposit of any gifts of more than minimal value they may have accepted.
(c) Employees are advised of the following actions which may result from failure to comply with the requirements of the Act and these regulations:
(1) Any supervisor who has substantial reason to believe that an employee under his or her supervision has violated the reporting or other compliance provisions of the Act shall report the facts and circumstances in writing to the senior official in charge of administration within the cognizant bureau or office or at the post abroad. If that official upon investigation decides that an employee who is the donee of a gift or is the recipient of travel or travel expenses has, through actions within the employee’s control, failed to comply with the procedures established by the Act and these regulations, the case shall be referred to the Attorney General for appropriate action.
(2) In cases of confirmed evidence of a violation, whether or not such violation results in the taking of action by the Attorney General, the senior administrative official referred to in paragraph (c)(1) of this section as responsible for forwarding a violation report to the Attorney General shall institute appropriate disciplinary action against an employee who has failed to (i) Deposit tangible gifts within 60 days after acceptance, (ii) account properly for the acceptance of travel expenses or (iii) comply with the Act’s requirements respecting disposal of gifts and decorations retained for official use.
(3) In cases where there is confirmed evidence of a violation, but no evidence that the violation was willful on the part of the employee, the senior administrative official referred to in paragraph (c)(1) of this section shall institute appropriate disciplinary action of a lesser degree than that called for in paragraph (c)(2) of this section in order to deter future violations by the same or another employee.
§ 3.11 Responsibility of chief of mission to inform host government of restrictions on employees’ receipt of gifts and decorations.
A special provision of the Act requires the President to direct every chief of a United States diplomatic mission to inform the host government that it is a general policy of the United States Government to prohibit its employees from receiving gifts of more than minimal value or decorations that have not been tendered “in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance.” Accordingly, all Chiefs of Mission shall in January of each year conduct a thorough and explicit program of orientation aimed at appropriate officials of the host government concerning the operation of the Act.
§ 3.12 Exemption of grants and other foreign government assistance in cultural exchange programs from coverage of foreign gifts and decorations legislation.
The Act specifically excludes from its application grants and other forms of assistance “to which section 108A of the Mutual Educational and Cultural Exchange Act of 1961 applies”. See 22 U.S.C. 2558 (a) and (b) for the terms and conditions under which Congress consents to the acceptance by a Federal employee of grants and other forms of assistance provided by a foreign government to facilitate the participation of such employee in a cultural exchange.
PART 3a – ACCEPTANCE OF EMPLOYMENT FROM FOREIGN GOVERNMENTS BY MEMBERS OF THE UNIFORMED SERVICES
§ 3a.1 Definitions.
For purposes of this part –
(a) Applicant means any person who requests approval under this part to accept any civil employment (and compensation therefor) from a foreign government and who is: (1) Any retired member of the uniformed services;
(2) Any member of a Reserve component of the Armed Forces; or
(3) Any member of the commissioned Reserve Corps of the Public Health Service.
(b) Uniformed services means the Armed Forces, the commissioned Regular and Reserve Corps of the Public Health Service, and the commissioned corps of the National Oceanic and Atmospheric Administration.
(c) Armed Forces means the Army, Navy, Air Force, Marine Corps, and Coast Guard.
(d) Secretary concerned means: (1) The Secretary of the Army, with respect to retired members of the Army and members of the Army Reserve;
(2) The Secretary of the Navy, with respect to retired members of the Navy and the Marine Corps, members of the Navy and Marine Corps Reserves, and retired members of the Coast Guard and members of the Coast Guard Reserve when the Coast Guard is operating as a service in the Navy;
(3) The Secretary of the Air Force, with respect to retired members of the Air Force and members of the Air Force Reserve;
(4) The Secretary of Transportation, with respect to retired members of the Coast Guard and members of the Coast Guard Reserve when the Coast Guard is not operating as a service in the Navy;
(5) The Secretary of Commerce, with respect to retired members of the commissioned corps of the National Oceanic and Atmospheric Administration; and
(6) The Secretary of Health, Education, and Welfare, with respect to retired members of the commissioned Regular Corps of the Public Health Service and members of the commissioned Reserve Corps of the Public Health Service.
§ 3a.2 Requirement for approval of foreign government employment.
(a) The United States Constitution (Article I, section 9, clause 8) prohibits the acceptance of civil employment with a foreign government by an officer of the United States without the consent of Congress. Congress has consented to the acceptance of civil employment (and compensation therefor) by any person described in § 3a.1(b) subject to the approval of the Secretary concerned and the Secretary of State (37 U.S.C. 801, Note). Civil employment with a foreign government may not be accepted without such approval by any person so described.
(b) The Secretary of State has no authority to approve employment with a foreign government by any officer of the United States other than a person described in § 3a.1(a). The acceptance of employment with a foreign government by any other officer of the United States remains subject to the constitutional prohibition described in paragraph (a) of this section.
(c) Any person described in § 3a.1(a) who accepts employment with a foreign government without the approval required by this section or otherwise obtaining the consent of Congress is subject to forfeiture of retired pay to the extent of his or her compensation from the foreign government, according to the Comptroller General of the United States (44 Comp. Gen. 139 (1964)). This forfeiture is in addition to any other penalty which may be imposed under law or regulation.
§ 3a.3 Authority to approve or disapprove proposed foreign government employment.
The Director, Bureau of Politico-Military Affairs, is authorized to approve or disapprove any request by an applicant for approval under this part to accept civil employment (and compensation therefor) from a foreign government. The Director may delegate this authority within the Bureau of Politico-Military Affairs, Department of State.
§ 3a.4 Procedure for requesting approval.
(a) An applicant must submit a request for approval of foreign government employment to the Secretary concerned, whose approval is also required by law for the applicant’s acceptance of civil employment from a foreign government. The request must contain information concerning the applicant’s status, the nature of the proposed employment in as much detail as possible, the identity of and relationship to the foreign government concerned, and other matters as may be required by the Secretary concerned.
(b) Requests approved by the Secretary concerned will be referred to the Director, Bureau of Politico-Military Affairs, for approval. Requests received by the Director, Bureau of Politico-Military Affairs, directly from an applicant will be initially forwarded to the Secretary concerned, or his designee, for approval of disapproval.
§ 3a.5 Basis for approval or disapproval.
Decisions by the Director, Bureau of Politico-Military Affairs, under this part shall be based on whether the applicant’s proposed employment with a foreign government would adversely affect the foreign relations of the United States, in light of the applicant’s official status as a retiree or reservist.
§ 3a.6 Notification of approval.
The Director, Bureau of Politico-Military Affairs, will notify the Secretary concerned when an applicant’s proposed foreign government employment is approved. Notification of approval to the applicant will be made by the Secretary concerned or his designee.
§ 3a.7 Notification of disapproval and reconsideration.
(a) The Director, Bureau of Politico-Military Affairs, will notify the applicant directly when an applicant’s proposed foreign employment is disapproved, and will inform the Secretary concerned.
(b) Each notification of disapproval under this section must include a statement of the reasons for the disapproval, with as much specificity as security and foreign policy considerations permit, together with a notice of the applicant’s right to seek reconsideration of the disapproval under paragraph (c) of this section.
(c) Within 60 days after receipt of the notice of disapproval, an applicant whose request has been disapproved may submit a request for reconsideration by the Director, Bureau of Politico-Military Affairs. A request for reconsideration should provide information relevant to the reasons set forth in the notice of disapproval.
(d) The disapproval of a request by the Director, Bureau of Politico-Military Affairs, will be final, unless a timely request for reconsideration is received. In the event of a request for reconsideration, the Director, Bureau of Politico-Military Affairs, will make a final decision after reviewing the record of the request. A final decision after reconsideration to approve the applicant’s proposed employment with a foreign government will be communicated to the Secretary concerned as provided in § 3a.6. A final decision after reconsideration to disapprove the applicant’s proposed employment with a foreign government will be communicated directly to the applicant as provided in paragraph (a) of this section and the Secretary concerned will be informed. The Director’s authority to make a final decision after reconsideration may not be redelegated.
§ 3a.8 Change in status.
In the event that an applicant’s foreign government employment approved under this part is to be materially changed, either by a substantial change in duties from those described in the request upon which the original approval was based, or by a change of employer, the applicant must obtain further approval in accordance with this part for such changed employment.
PART 4 – NOTIFICATION OF FOREIGN OFFICIAL STATUS
§ 4.1 General.
In accordance with Article 10 of the Vienna Convention on Diplomatic Relations and Article 24 of the Vienna Convention on Consular Relations, diplomatic missions must notify the Office of Protocol immediately upon the arrival, in the United States, of any foreign government officer or employee (including domestics and family members), who are serving at diplomatic missions, consular posts, or miscellaneous foreign government offices. If the employee is already in the United States in some other capacity, the notification should be made upon assumption of duties. This initial notification requirement also includes all U.S. citizens and permanent resident aliens who are employed by foreign missions.
§ 4.2 Procedure.
Notification and subsequent changes are made as follows:
(a) Diplomatic and career consular officers and their dependents: Form DSP-110, Notification of Appointment of Foreign Diplomatic Officer and Career Consular Officer;
(b) All other foreign government employees who are serving at diplomatic missions, consular posts, or miscellaneous foreign government offices and their dependents: Form DSP-111, Notification of Appointment of Foreign Government Employee.
(c) Honorary consular officers: Form DSP-112, Notification of Appointment of Honorary Consular Officer.
(d) Missions should use Form DSP-113, Notification of Change – Identification Card Request, to promptly inform the Department of State of any change in the status of officers or employees of the missions and their family members originally reported to Protocol, or to apply for an identification card.
(e) Upon termination of employment of any diplomatic or consular officer, honorary consular officer, embassy or consular employee, or miscellaneous foreign government staff member, a Form DSP-115, Notice of Termination of Diplomatic, Consular, or Foreign Government Employment, must be submitted to the Office of Protocol.
PART 5 – ORGANIZATION
§ 5.1 Introduction.
This part provides information to the public as required by the Freedom of Information Act, 5 U.S.C. 552(a)(1).
§ 5.2 Central and field organization.
(a) The central organization of the Department of State is prescribed by the State Department Basic Authorities Act of 1956, as amended (Pub. L. 84-885), codified at 22 U.S.C. 2651 et seq. and the Foreign Affairs Manual (see § 5.5).
(b) As used in this part, the term “Department of State” includes all offices within the Department in Washington, its domestic field offices in the United States, all U.S. diplomatic and consular posts throughout the world, and U.S. missions to international organizations unless otherwise specified.
(c) Any person desiring information concerning a matter handled by the Department of State, or any person desiring to make a submittal or request in connection with such a matter, should communicate either orally or in writing with the appropriate office. If the office receiving the communication does not have jurisdiction to handle the matter, the communication, if written, will be forwarded to the proper office, or, if oral, the person will be advised how to proceed. When the submittal or request from a member of the public consists of a formal application for one of the documents, privileges, or other benefits provided for in the laws administered by the Department of State, or in the regulations implementing these laws, the member of the public should follow the instructions on the form as to preparation and place of submission.
(d) From time to time, the Secretary of State will, to the extent authorized by law, delegate statutory or other authorities to subordinate officers, as authorized by 22 U.S.C. 2651a(a)(4). The Department will generally publish such delegations of authority in the
§ 5.3 Rules of procedure, description of forms available, or the places at which forms may be obtained.
Rules of procedure regarding the following listed matters may be consulted under the corresponding regulations referenced in § 5.4, or obtained upon application to the offices listed below. Forms pertaining to the following listed matters, and instructions relating thereto may also be obtained at the offices indicated in the following table 1 to § 5.3:
Table 1 to § 5.3
| Subject matter | Office | Address |
|---|---|---|
| Access to Information and Records | Bureau of Administration | Office of Information Programs and Services (IPS), U.S. Department of State, State Annex 2 (SA-2), 515 22nd Street NW, Washington, DC, Suite 8100, 20522-0208, Fax: (202) 261-8579, URL: For passport records and records of the Office of the Inspector General, please see 22 CFR 171.4(a). |
| Appointment of Foreign Service Officers | Board of Examiners for the Foreign Service | Board of Examiners for the Foreign Service, Department of State, SA-1, H-518, 2401 E Street NW. Washington, DC 20522. |
| Authentications | Office of Authentications | U.S. Department of State, 600 19th Street NW, Washington, DC 20006. |
| Civil Rights | Office of Civil Rights | Office of Civil Rights (S/OCR), 2201 C Street NW, Suite 7428, Washington, DC 20520. |
| Forms | ||
| International educational and cultural exchange programs | Bureau of Educational and Cultural Affairs | For ECA-funded programs, Department of State, 2200 C Street NW, Washington, DC 20522-0500, For the Exchange Visitor Program, Department of State, SA-4E, Room E-B001 – 2201 C Street NW, Washington, DC 20520. |
| International Traffic in Arms Regulations | Directorate of Defense Trade Controls | U.S. Department of State, Directorate of Defense Trade Controls, 2401 E Street NW, SA-1, Room H1200, Washington, DC 20037. |
| U.S. Passports | Passport Services | |
| Organizational chart | ||
| Procurements and assistance, domestic/international acquisition and federal assistance policy | Office of the Procurement Executive | U.S. Department of State, A/OPE (SA-15, Suite 1060), Washington, DC 20522, FAX 703-875-6155. |
| Protection and welfare of U.S. citizens, intercountry adoption, international child abduction, and other consular services abroad | Overseas Citizen Services | |
| Treaties and international agreements | Office of the Assistant Legal Adviser for Treaty Affairs | |
| Visa issuance | Office of Visa Services |
(a) The regulations of the Department of State required to be published under the provisions of the Administrative Procedure Act are found in the Code of Federal Regulations (generally in title 22) and in the
(b) The following paragraphs (b)(1) through (18) are citations to regulations within the scope of this section:
(1) Appointment of Foreign Service Officers. 22 CFR part 11 et seq.
(2) Schedule of Fees for Consular Services. 22 CFR part 22.
(3) Claims and Stolen Property. 22 CFR part 31 et seq.
(4) Issuance of Visas. 22 CFR parts 41-42 et seq.
(5) Nationality and Passports. 22 CFR part 50 et seq.
(6) International Educational and Cultural Exchanges. 22 CFR part 62 et seq.
(7) Protection and Welfare of Americans Abroad. 22 CFR part 71 et seq.
(8) Other Consular Services Abroad. 22 CFR part 92 et seq.
(9) Chemical Weapons Convention Regulations. 22 CFR part 103.
(10) International Trafficking in Persons. 22 CFR part 104.
(11) International Traffic in Arms Regulations. 22 CFR part 121 et seq.
(12) Certificates of Authentication. 22 CFR part 131 et seq.
(13) Civil Rights, including implementation of Sections 504 and 508 of the Rehabilitation Act of 1973. 22 CFR part 141 et seq.
(14) Department of State Acquisition Regulation. 48 CFR chapter 6.
(15) Availability of Information and Records to the Public. 22 CFR part 171.
(16) Service of Process. 22 CFR part 172.
(17) Availability of Public Diplomacy Program Material in the United States. 22 CFR part 173.
(18) Coordination, Reporting, and Publication of International Agreements. 22 CFR part 181.
(c) The regulations listed in paragraph (b) of this section are supplemented from time to time by amendments appearing initially in the
§ 5.5. The Foreign Affairs Manual and the Foreign Affairs Handbook.
The Department articulates official guidance, including procedures and policies, on matters relating to Department management and personnel in the Foreign Affairs Manual (FAM) and the Foreign Affairs Handbook (FAH) series. Some of these directives are promulgated pursuant to statute, such as the Secretary of State’s authority to prescribe regulations for the Foreign Service as provided in Section 206 of the Foreign Service Act of 1980, as amended, 22 U.S.C. 3926. The FAMs and FAHs that are publicly available are located on the Department’s public website, at https://fam.state.gov/.
PART 7 [RESERVED]
PART 9 – SECURITY INFORMATION REGULATIONS
§ 9.1 Basis.
The regulations in this part, taken together with 32 CFR part 2001 and Volume 5 of the Department’s Foreign Affairs Manual, provide the basis for the security classification program of the U.S. Department of State (“the Department”) implementing Executive Order 13526 on Classified National Security Information (“the Executive Order” or “the Order”).
§ 9.2 Objective.
The objective of the Department’s classification program is to ensure that national security information is protected from unauthorized disclosure, but that it remains classified only to the extent and for such a period as is necessary.
§ 9.3 Senior agency official.
The Executive Order requires that each agency that originates or handles classified information designate a Senior Agency Official to direct and administer its information security program. The Department’s senior agency official is the Under Secretary of State for Management. The Senior Agency Official is assisted in carrying out the provisions of the Executive Order and the Department’s information security program by the Assistant Secretary for Diplomatic Security, the Assistant Secretary for Administration, and the Deputy Assistant Secretary for Global Information Services.
§ 9.4 Original classification.
(a) Definition. Original classification is the initial determination that certain information requires protection against unauthorized disclosure in the interest of national security (i.e., national defense or foreign relations of the United States), together with a designation of the level of classification.
(b) Classification levels. (1) Top Secret shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.
(2) Secret shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.
(3) Confidential shall be applied to information the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.
(c) Classification requirements and considerations. (1) Information may not be considered for classification unless its unauthorized disclosure could reasonably be expected to cause identifiable or describable damage to the national security in accordance with section 1.2 of the Executive Order, and it pertains to one or more of the following:
(i) Military plans, weapons systems, or operations;
(ii) Foreign government information;
(iii) Intelligence activities (including covert action), intelligence sources or methods, or cryptology;
(iv) Foreign relations or foreign activities of the United States, including confidential sources;
(v) Scientific, technological, or economic matters relating to the national security;
(vi) United States Government programs for safeguarding nuclear materials or facilities;
(vii) Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or
(viii) The development, production, or use of weapons of mass destruction.
(2) In classifying information, the public’s interest in access to government information must be balanced against the need to protect national security information.
(3) The unauthorized disclosure of foreign government information is presumed to cause damage to national security.
(d) Classification limitations and prohibitions. (1) In no case shall information be classified in order to conceal violations of law, inefficiency, or administrative error, or to prevent embarrassment to a person, organization, or agency, to restrain competition, or to prevent or delay the release of information that does not require protection in the interest of the national security.
(2) A reference to classified documents that does not directly or indirectly disclose classified information may not be classified or used as a basis for classification.
(3) Only information owned by, produced by or for, or under the control of the U.S. Government may be originally classified.
(e) Duration of classification. (1) Information shall be classified for as long as is required by national security considerations, subject to the limitations set forth in section 1.5 of the Executive Order. When it can be determined, a specific date or event for declassification in less than 10 years shall be set by the original classification authority at the time the information is originally classified. If a specific date or event for declassification cannot be determined, information shall be marked for declassification 10 years from the date of the original decision, unless the original classification authority determines that the sensitivity of the information requires that it be marked for declassification for up to 25 years from the date of the original decision except for:
(i) Information that would reveal the identity of a confidential human source or a human intelligence source, or key design concepts of weapons of mass destruction, in which case the duration of classification shall be up to 75 years and shall be designated with the markings “50X1-HUM” and “50X2-WMD,” respectively; and
(ii) Specific information incorporated into the classification guide under section 2.2(e) of the Executive Order relating to exemptions from automatic declassification.
(2) An original classification authority may extend the duration of classification up to 25 years from the date of origin of the document, change the level of classification, or reclassify specific information only when the standards and procedures for classifying information under the Executive Order are met.
(3) No information may remain classified indefinitely. Information marked for an indefinite duration of classification under predecessor orders, such as “Originating Agency’s Determination Required” (OADR) or classified information that contains incomplete declassification instructions or lacks declassification instructions, shall be declassified in accordance with Part 3 of the Order.
(a) Authority for original classification of information as Top Secret may be exercised by the Secretary and those officials delegated this authority in writing by the Secretary. Such authority has been delegated to the Deputy Secretaries, the Under Secretaries, the Counselor, Assistant Secretaries and equivalents; Chiefs of Mission and U.S. representatives to international organizations; and certain other officers within the Department and at posts abroad.
(b) Authority for original classification of information as Secret or Confidential may be exercised only by the Secretary, the Senior Agency Official, and those officials delegated this authority in writing by the Secretary or the Senior Agency Official. Such authority has been delegated to Deputy Assistant Secretaries, Principal Officers at consulates general and consulates abroad, and certain other officers within the Department and at posts abroad. In the absence of the Secret or Confidential classification authority, the person designated to act for that official may exercise that authority.
§ 9.6 Derivative classification.
(a) Definition. Derivative classification is: the incorporating, paraphrasing, restating, or generating in new form information that is already classified and the marking of the new material consistent with the classification of the source material, or the marking of the information in accordance with an authorized classification guide. Duplication or reproduction of existing classified information is not derivative classification. Persons who apply classification markings derived from source material or as directed by a classification guide need not possess original classification authority.
(b) Responsibility. Information classified derivatively from other classified information shall be classified and marked in accordance with instructions from an authorized classifier or in accordance with an authorized classification guide and shall comply with the standards set forth in sections 2.1-2.2 of the Executive Order and 32 CFR 2001.22. The duration of classification of a document classified by a derivative classifier using a classification guide shall not exceed 25 years except for:
(1) Information that would reveal the identity of a confidential human source or a human intelligence source (50X1-HUM) or key design concepts of weapons of mass destruction (50X2-WMD), and
(2) Specific information incorporated into the classification guide under section 2.2(e) of the Executive Order relating to exemptions from automatic declassification.
(c) Department of State Classification Guide. The Department of State Classification Guide (DSCG) is the primary authority for the classification of information in documents created by Department of State personnel. The Guide is classified “Confidential” and is found on the Department of State’s classified Web site.
§ 9.7 Identification and marking.
(a) Classified information shall be marked pursuant to the standards set forth in section 1.6 of the Executive Order, 32 CFR part 2001, subpart C, and internal Department guidance in 5 Foreign Affairs Manual.
(b) Foreign government information shall retain its original classification markings or be marked and classified at a U.S. classification level that provides a degree of protection at least equivalent to that required by the entity that furnished the information. Foreign government information retaining its original classification markings need not be assigned a U.S. classification marking provided the responsible agency determines that the foreign government markings are adequate to meet the purposes served by U.S. classification markings.
(c) Information assigned a level of classification under predecessor executive orders shall be considered as classified at that level of classification despite the omission of other required markings.
(d) Prior to public release, all declassified records shall be appropriately marked to reflect their declassification.
§ 9.8 Classification challenges.
(a) Challenges. Authorized holders of information pertaining to the Department of State who believe that its classification status is improper are expected and encouraged to challenge the classification status of the information. Such persons making challenges to the classification status of information shall not be subject to retribution for such action. Informal, usually oral, challenges are encouraged. Formal challenges to classification actions shall be in writing to an original classification authority (OCA) with jurisdiction over the information and a copy of the challenge shall be sent to the Office of Information Programs and Services (IPS) of the Department of State, SA-2, 515 22nd St. NW., Washington, DC 20522-8100. The Department (either the OCA or IPS) shall provide an initial response in writing within 60 calendar days.
(b) Appeal procedures and time limits. A negative response may be appealed to the Department’s Appeals Review Panel (ARP) and should be sent to: Chairman, Appeals Review Panel, c/o Director, Office of Information Programs and Services/Appeals Officer, at the IPS address given above. The appeal shall include a copy of the original challenge, the response, and any additional information the appellant believes would assist the ARP in reaching its decision. The ARP shall respond within 90 calendar days of receipt of the appeal. A negative decision by the ARP may be appealed to the Interagency Security Classification Appeals Panel (ISCAP) referenced in section 5.3 of Executive Order 13526. If the Department fails to respond to a formal challenge within 120 calendar days or if the ARP fails to respond to an appeal within 90 calendar days, the challenge may be sent directly to the ISCAP.
(c) Pre-publication review materials. The provisions for classification challenges do not apply to material required to be submitted for pre-publication review, or other administrative action, pursuant to a non-disclosure agreement.
§ 9.9 Declassification and downgrading.
(a) Declassification processes. Declassification of classified information may occur:
(1) After review of material in response to a Freedom of Information Act (FOIA) request, mandatory declassification review request, discovery request, subpoena, classification challenge, or other information access or declassification request;
(2) After review as part of the Department’s systematic declassification review program;
(3) As a result of the elapse of the time or the occurrence of the event specified at the time of classification;
(4) By operation of the automatic declassification provisions of section 3.3 of the Executive Order with respect to material more than 25 years old.
(b) Downgrading. When material classified at the Top Secret level is reviewed for declassification and it is determined that classification continues to be warranted, a determination shall be made whether downgrading to a lower level of classification is appropriate. If downgrading is determined to be warranted, the classification level of the material shall be changed to the appropriate lower level.
(c) Authority to downgrade and declassify. (1) Classified information may be downgraded or declassified by:
(i) The official who originally classified the information if that official is still serving in the same position and has original classification authority;
(ii) A successor in that capacity if that individual has original classification authority;
(iii) A supervisory official of either if the supervisory official has original classification authority;
(iv) Other Department officials specifically delegated declassification authority in writing by the Secretary or the Senior Agency Official; or
(v) The Director of the Information Security Oversight Office pursuant to Sec. 3.1(a) of E.O. 13526.
(2) The Department shall maintain a record of Department officials specifically designated as declassification and downgrading authorities.
(d) Declassification in the public interest. Although information that continues to meet the classification criteria of the Executive Order or a predecessor order normally requires continued protection, in some exceptional cases the need to protect information may be outweighed by the public interest in disclosure of the information. When such a question arises, it shall be referred to the Secretary or the Senior Agency Official for decision on whether, as an exercise of discretion, the information should be declassified and disclosed. This provision does not amplify or modify the substantive criteria or procedures for classification or create any substantive or procedural right subject to judicial review.
(e) Public disclosure of declassified information. Declassification of information is not, by itself, authorization for its public disclosure. Previously classified information that is declassified may be exempt from public disclosure under the FOIA, the Privacy Act, or various statutory confidentiality provisions. There also may be treaties or other international agreements that would preclude public disclosure of declassified information.
§ 9.10 Mandatory declassification review
(a) Scope. All information classified under E.O. 13526 or predecessor orders shall be subject to mandatory declassification review upon request by a member of the public or a U.S. government employee or agency with the following exceptions:
(1) Information originated by the incumbent President or the incumbent Vice President; the incumbent President’s White House staff or the incumbent Vice President’s staff; committees, commissions, or boards appointed by the incumbent President; other entities within the Executive Office of the President that solely advise and assist the incumbent President;
(2) Information that is the subject of pending litigation; and
(3) Information that has been reviewed for declassification within the past two years which need not be reviewed again, but the requester shall be given appeal rights.
(b) Requests. Requests for mandatory declassification review should be addressed to the Office of Information Programs and Services, U.S. Department of State, SA-2, 515 22nd St. NW., Washington, DC 20522-8100.
(c) Description of information. In order to be processed, a request for mandatory declassification review must describe the document or the material containing the information sought with sufficient specificity to enable the Department to locate the document or material with a reasonable amount of effort. Whenever a request does not sufficiently describe the material, the Department shall notify the requester that no further action will be taken unless additional description of the information sought is provided.
(d) Refusal to confirm or deny existence of information. The Department may refuse to confirm or deny the existence or nonexistence of requested information whenever the fact of existence or nonexistence is itself classified.
(e) Processing. In responding to mandatory declassification review requests, the Department shall make a review determination as promptly as possible, but in no case more than one year from the date of receipt of the request, and notify the requester accordingly. When the requested information cannot be declassified in its entirety, the Department shall release all meaningful portions that can be declassified and that are not exempt from disclosure on other grounds.
(f) Other agency information. When the Department receives a request for information in its possession that was originally classified by another agency, it shall refer the request and the pertinent information to the other agency unless that agency has agreed that the Department may review such information for declassification on behalf of that agency. In any case, the Department is responsible for responding to the requester with regard to any responsive information, including other-agency information, unless a prior arrangement has been made with the originating agency.
(g) Foreign government information. In the case of a request for material containing foreign government information, the Department shall determine whether the information may be declassified and may, if appropriate, consult with the relevant foreign government on that issue. If the Department is not the agency that initially received the foreign government information, it may consult with the original receiving agency.
(h) Documents or material containing RD or Transclassified Foreign Nuclear Information (TFNI). Documents or material containing RD or TFNI will be submitted to DOE for review. Documents containing FRD will be submitted to DOE or DoD for review.
(i) Appeals. Any denial of a mandatory declassification review request may be appealed to the ARP. A denial by the ARP of a mandatory declassification review appeal may be further appealed to the ISCAP. A failure of the Department to make a determination on a mandatory declassification review request within one year from the date of its receipt or to respond to an appeal of a denial by the ARP within 180 calendar days of its receipt may be appealed directly to the ISCAP.
§ 9.11 Systematic declassification review.
The Director of the Office of Information Programs and Services shall be responsible for conducting a program for systematic declassification review of historically valuable records that: were exempted from the automatic declassification provisions of section 3.3 of the Executive Order; or will soon become subject to the automatic declassification provisions of section 3.3 of the Order. The Director shall prioritize such review in accordance with priorities established by the National Declassification Center.
§ 9.12 Sharing other-agency classified information.
The long-standing third-agency rule has required prior originating agency approval before a receiving agency could further disseminate classified information. Under the Executive Order, unless the originating agency indicates on the material that prior approval is required and provided that the criteria for access under section 4.1(a) of the Order are met, a receiving agency may further disseminate classified information in documents created subsequent to the effective date of the Order to another agency or U.S. entity without consultation with the originating agency. “U.S. entity” includes cleared state, local, tribal, and private sector entities. Similarly, under certain circumstances, receiving agencies may pass such classified information to foreign governments.
§ 9.13 Access to classified information by historical researchers and certain former government personnel.
(a) The restriction in E.O. 13526 and predecessor orders on limiting access to classified information to individuals who have a need-to-know the information may be waived, under the conditions set forth below, for persons who: are engaged in historical research projects; have served as President or Vice President; have occupied senior policy-making positions in the Department of State or other U.S. government agencies to which they were appointed or designated by the President or the Vice President. It does not include former Foreign Service Officers as a class or persons who merely received assignment commissions as Foreign Service Officers, Foreign Service Reserve Officers, Foreign Service Staff Officers, and employees.
(b) Requests by such persons must be submitted in writing to the Office of Information Programs and Services at the address set forth above and must include a general description of the records sought, the time period covered by the records that are the subject of the request, and an explanation why access is sought. Requests for access by such requesters may be granted if:
(1) The Secretary or the Senior Agency Official determines in writing that access is consistent with the interests of national security;
(2) The requester agrees in writing to safeguard the information from unauthorized disclosure or compromise;
(3) The requester submits a statement in writing authorizing the Department to review any notes and manuscripts created as a result of access;
(4) The requester submits a statement in writing that any information obtained from review of the records will not be disseminated without the express written permission of the Department;
(c) If a requester uses a research assistant, the requester and the research assistant must both submit a statement in writing acknowledging that the same access conditions set forth in paragraphs (b)(2) through (b)(4) of this section apply to the research assistant. Such a research assistant must be working for the applicant and not gathering information for publication on his or her own behalf.
(d) Access granted under this section shall be limited to items the official originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee or as President or Vice President.
(e) Such requesters may seek declassification and release of material to which they have been granted access under this section through either the FOIA or the mandatory declassification review provisions of E.O. 13526. Such requests shall be processed in the order received, along with other FOIA and mandatory declassification review requests, and shall be subject to the fees applicable to FOIA requests.
§ 9.14 Pre-publication review of writings by former Department personnel.
The Department provides pre-publication review of writings on foreign relations topics by former Department personnel, including contractors and detailees, who had security clearances to try to ensure that former personnel do not violate their agreements on non-disclosure of classified national security information in such writings. Manuscripts (including articles, speeches, books, etc.) should be sent to the Director, Office of Information Programs and Services, 515 22nd St. NW., Washington, DC 20522-8100. Questions about pre-publication clearance may be sent to [email protected].
§ 9.15 Assistance to the Historian’s Office.
All elements of the Department shall assist the Historian’s Office in its preparation of the Foreign Relations of the United States (FRUS) series such as by providing prompt access to and, when possible, declassification of information deemed appropriate for inclusion in the FRUS.
§ 9.16 Safeguarding.
Specific controls on the use, processing, storage, reproduction, and transmittal of classified information within the Department to provide protection for such information and to prevent access by unauthorized persons are contained in Volume 12 of the Department’s Foreign Affairs Manual.
PART 9a – SECURITY INFORMATION REGULATIONS APPLICABLE TO CERTAIN INTERNATIONAL ENERGY PROGRAMS; RELATED MATERIAL
These regulations implement Executive Order 11932 dated August 4, 1976 (41 FR 32691, August 5, 1976) entitled “Classification of Certain Information and Material Obtained from Advisory Bodies Created to Implement the International Energy Program.”
§ 9a.2 General policy.
(a) The United States has entered into the Agreement on an International Energy Program of November 18, 1974, which created the International Energy Agency (IEA). This program is a substantial factor in the conduct of our foreign relations and an important element of our national security. The effectiveness of the Agreement depends significantly upon the provision and exchange of information and material by participants in advisory bodies created by the IEA. Confidentiality is essential to assure the free and open discussion necessary to accomplish the tasks assigned to those bodies.
(b) These regulations establish procedures for the classification, declassification, storage, access, and dissemination of certain information related to the International Energy Program.
§ 9a.3 Scope.
These regulations apply to all information and material classified by the United States under the provisions of E.O. 11932, dated August 4, 1976 entitled “Classification of Certain Information and Material Obtained From Advisory Bodies Created To Implement The International Energy Program.”
§ 9a.4 Classification.
(a) Section 1 of E.O. 11932, August 4, 1976 directs that information and material obtained pursuant to the International Energy Program and which requires protection against unauthorized disclosure in the interest of the national defense or foreign relations of the United States shall be classified pursuant to Executive Order 11652.
(b) Information and material, including transcripts, records, and communications, in the possession of the United States Government which has been obtained pursuant to (1) section 252(c)(3), (d)(2) or (e)(3) of the Energy Policy and Conservation Act (89 Stat. 871, 42 U.S.C. 6272(c)(3), (d)(2), (e)(3)), or (2) The Voluntary Agreement and Program Relating to the International Energy Program (40 FR 16041, April 8, 1975), or (3) the Voluntary Agreement and Plan of Action to Implement the International Energy Program (41 FR 13998, April 1, 1976), or (4) Any similar Voluntary Agreement and Program entered into under the Energy Policy and Conservation Act shall be reviewed by an officer of the Department of State with classifying authority for the purpose of determining whether such information or material should be classified pursuant to E.O. 11652. If the officer determines that the information or material warrants classification, he shall assign it the appropriate classification. Such information or material may be exempted from the General Declassification Schedule established by section 5 of Executive Order No. 11652 if it was obtained by the United States on the understanding that it be kept in confidence, or if it might otherwise be exempted under section 5(B) of such Order.
(c) In classifying such information or material, officers of the Department of State shall follow the standards in E.O. 11652 and the provisions of 22 CFR 9.5 through 9.8.
§ 9a.5 Declassification and downgrading.
The provisions of E.O. 11652, 22 CFR 9.9 through 9.15, and 9a.4(b) shall govern declassification and downgrading of such information or material.
§ 9a.6 Marking.
(a) The provisions of 22 CFR 9.15 through 9.19 shall govern the marking of information or material classified under the provisions of these regulations, except that the following stamp shall be used as appropriate:
(b) If the information or material does not qualify for exemption from the General Declassification Schedule, ordinary stamps and marking may be used.
§ 9a.7 Access.
(a) Except as set forth in this section, access to information or material classified under the provisions of these regulations shall be governed by the provisions of 22 CFR 9.20 through 9.25.
(b) Classified information and material which was created by or in connection with an advisory body to the IEA may be made available to participants in such advisory body and their colleagues in accordance with the following subsections.
(c) Such information and material classified “Confidential” may be made available for review to participants in the meeting of the advisory body in which it was developed or discussed. Where participants are acting as representatives of companies or of the IEA Secretariat, such information and material may be made available for review to employees or other representatives of, or counsel for, such companies or Secretariat: Provided, That such person is determined by an appropriate officer of the Department to be trustworthy and to have a need for access to the particular classified information sought in connection with the performance of duties in furtherance of the purposes of the IEA, including the furnishing of legal advice to such participants.
(d) Such information and material classified “Confidential” may be left in the custody of such participants or other persons who may review it for reasonable period of time: Provided, That an appropriate officer of the Department determines that it will be protected from unauthorized disclosure by adequate security safeguards. Such information or material may not be reproduced by those permitted to review it pursuant to this section without the written consent of an officer of the Department with classifying authority.
(e) Such information and material classified other than “Confidential” under E.O. 11652 may be made available for review only to participants in the meeting in which it was developed or discussed; it must be reviewed in the presence of an official of the United States Government with an appropriate security clearance granted by the Department, and may not be left in the custody of such participants.
§ 9a.8 Physical protection.
Except as provided in § 9a.7, the physical protection of information or material classified under this regulation shall be governed by the appropriate provisions of 22 CFR 9.45 through 9.49.
PART 9b – REGULATIONS GOVERNING DEPARTMENT OF STATE PRESS BUILDING PASSES
§ 9b.1 Press access to the Department of State.
(a) Media correspondents without valid Department of State press building passes shall have access to the Main State building identical to that enjoyed by members of the public.
(b) Media correspondents holding valid Department of State press building passes:
(1) May enter and have access 24 hours a day, during regular working hours, outside regular working hours, on weekends and on holidays, without an appointment, to the reception area of the Diplomatic Lobby, C Street Mezzanine area, press booths (Room 2310), press briefing room (Room 2118), and when in operation, the Office of Press Relations (Room 2109).
(2) May enter and have access without an appointment, on the basement level or on the first and second floors, to the cafeteria, post office, banks, concessionaries, barber shop, dry cleaners and the Foreign Affairs Recreation Association offices for the purposes for which they are established and when they are in operation.
(3) May not escort non-passholders into the Department of State building.
(c) Media correspondents, with or without a Department of State press building pass, may enter areas above the second floor of the Main State building only if the correspondent is invited by a Department employee to attend a specific social or official function in an office located above the second floor. Permission to enter areas above the second floor is strictly limited to direct passage to and from the appointment location of the Department of State employee, or the office or reception room where the function takes place.
(d) Possession of State Department press building pass does not confer access to or other privileges at other Federal buildings. It is not to be construed as official United States Government recognition, approval or accreditation of a correspondent.
§ 9b.2 Press correspondents employed by United States media organizations.
In order to obtain a Department of State press building pass, press correspondents employed by United States media organizations must:
(a) Present to the Office of Press Relations, Department of State, a letter from his or her organization stating:
(1) That the applicant is a bona fide, full-time media correspondent based permanently and residing in the Washington, DC, metropolitan area;
(2) That the applicant is employed by the certifying organization;
(3) That the organization and the applicant have regular and substantial assignments in connection with the Department of State as evidence by regular attendance at the daily press briefings.
(b) Submit to the Office of Press Relations, Department of State, Washington, DC 20520, a signed application and FORM DSP-97 for a press building pass. Applicants must comply with instructions contained in paragraphs 1 and 6 of FORM DSP-97 regarding fingerprinting and prior arrests. FORM DSP-97 requires the following information:
(1) Name;
(2) Affiliation with news media organizations;
(3) Date of birth;
(4) Place of birth;
(5) Sex;
(6) Citizenship;
(7) Social Security or passport number;
(8) Marital status;
(9) Spouse name;
(10) Office address and telephone number;
(11) Length of employment;
(12) Home address and telephone number; and
(13) Length of residence.
§ 9b.3 Press correspondents employed by foreign media organizations.
In order to obtain a Department of State press building pass, correspondents employed by foreign media organizations must:
(a) Present to the Office of Press Relations, Department of State, Washington, DC 20520 a letter from his or her organization stating:
(1) That the applicant is a bona fide, full-time media correspondent based permanently and residing in the Washington, DC, metropolitan area:
(2) That the applicant is employed by the certifying organization;
(3) That the organization and the applicant have regular and substantial assignments in connection with the Department of State as evidence by regular attendance at the daily press briefings.
(b) A letter from the Washington, DC Embassy of the nation where the organization is headquartered or from the Embassy of the United States in the nation where the organization is headquartered attesting to the existence of the news organization and the applicant’s employment by that organization. The Director of the Office of Press Relations may accept a letter from another source attesting to the existence of such news organizations and the applicant’s employment if, in his or her judgment, a substitute letter is warranted.
(c) Submit to the Office of Press Relations, Department of State, Washington, DC 20520 a signed application and FORM DSP-97 for a press building pass. Applicants must comply with instructions contained in paragraphs 1 and 6 of FROM DSP-97 regarding fingerprinting and prior arrests. FORM DSP-97 requires the following information:
(1) Name;
(2) Affiliation with news media organizations;
(3) Date of birth;
(4) Place of birth;
(5) Sex;
(6) Citizenship;
(7) Social Security or passport number;
(8) Marital status;
(9) Spouse name;
(10) Office address and telephone number;
(11) Length of employment;
(12) Home address and telephone number; and
(13) Length of residence.
§ 9b.4 Department of State building press pass for technical crews.
Department of State press building passes are issued to members of television and radio technical crews who provide technical support on a daily basis for media correspondents assigned to the Department of State. Members of technical crews who do not possess press passes, but who provide technical support for media correspondents assigned to the Department of State, may apply to the Office of Press Relations for a visitor’s pass valid for one day.
§ 9b.5 Temporary Department of State press building passes.
A media correspondent or technician who meets all the qualifications stated in §§ 9b.2(a)(1) and 9b.2(a)(2) or §§ 9b.3(a) and 9b.3(b), but does not have regular and substantial assignments in connection with the Department of State may make arrangements with the Office of Press Relations for the issuance of a visitor’s pass valid for one day.
§ 9b.6 Grounds for denial, revocation, or non-renewal of Department of State press building passes.
In consultation with the Bureau of Diplomatic Security and the Office of the Legal Adviser, the Director of the Office of Press Relations of the Department of State, may deny, revoke, or not renew the Department of State press building pass of any media correspondent or technician who:
(a) Does not meet the qualifications stated in §§ 9b.2(a)(1), 9b.2(a)(2) and 9b.2(a)(3) or §§ 9b.3(a)(1), 9b.3(a)(2), 9b.3(a)(3) and 9b.3(b). (Upon denial, revocation, or non-renewal the correspondent or technician may not re-apply for a period of one year unless there are material changes in meeting the qualifications.) or,
(b) Poses a risk of harm to the personal safety of Department of State or other Governmental personnel or to Government property; or
(c) Engages or engaged in conduct which there are reasonable grounds to believe might violate federal or state law or Department of State regulations.
(d) Has been convicted of a felony (or a crime in a foreign country that would be considered a felony if it were committed in the United States).
(e) Fails to claim an approved authorization form for a State Department press building pass after notification by the Office of Press Relations following a period of three (3) months.
§ 9b.7 Procedures for denial, revocation, or non-renewal of Department of State press building passes.
(a) If the Director of the Office of Press Relations, Department of State, anticipates, after consultation with the Office of the Legal Adviser, that in applying the standard set forth in § 9b.6 a Department of State press building pass might be denied, revoked or not renewed, the media correspondent or technician will be notified in writing by the Director of the basis for the proposed denial in as much detail as the security of any confidential source of information will permit. This notification will be sent by registered mail.
(b) The notification of the proposed denial, revocation or non-renewal sent to the correspondent will also contain a statement advising the correspondent of his or her right to respond to the proposed denial and to rebut any factual basis supporting the proposed denial.
(c) The correspondent shall be allowed thirty (30) days from the date of the mailing of the proposed denial, revocation or non-renewal notification to respond in writing. The response shall consist of any explanation or rebuttal deemed appropriate by the correspondent and will be signed by the correspondent under oath or affirmation.
(d) If the correspondent is unable to prepare a response within 30 days, an extension for one additional 30-day period will be granted upon receipt of the correspondent’s written request for such an extension.
(e) At the time of the filing of the media correspondent’s or technician’s written response to the notification of the proposed denial, revocation or non-renewal, the correspondent or technician may request, and will be granted, the opportunity to make a personal appearance before the Director of the Office of Press Relations, Department of State, for the purpose of personally supporting his/her eligibility for a press pass and to rebut or explain the factual basis for the proposed denial. The Director shall exercise, in consultation with the Bureau of Diplomatic Security and the Office of the Legal Adviser, final review authority in the matter. The correspondent or technician may be represented by counsel during this appearance.
(f)(1) On the basis of the correspondent’s or technician’s written and personal response and the factual basis for the proposed denial, revocation or non-renewal, the Director of the Office of Press Relations, Department of State, will consult with the Bureau of Diplomatic Security and the Office of the Legal Adviser to determine whether or not further inquiry or investigation concerning the issues raised is necessary.
(2) If a decision is made that no such inquiry is necessary, a final decision will be issued in conformity with paragraph (g) of this section.
(3) If a decision is made that such further inquiry is necessary, the Director of the Office of Press Relations of the Department of State, the Bureau of Diplomatic Security and the Office of the Legal Adviser will conduct such further inquiry as is deemed appropriate. At the Director’s discretion the inquiry may consist of:
(i) The securing of documentary evidence:
(ii) Personal interviews:
(iii) An informal hearing:
(iv) Any combination of paragraphs (f)(3)(i) through (f)(3)(iii) of this section.
(g) On the basis of the correspondent’s or technician’s written and personal response, the factual basis for the proposed denial and the additional inquiry provided for if such inquiry is conducted, the Director of the Office of Press Relations of the Department of State will consult with the Bureau of Diplomatic Security and the Office of the Legal Adviser and expeditiously reach a final decision in accordance with the standard set forth in § 9b.6. If a final adverse decision is reached, the correspondent or technician will be notified of this final decision in writing. This notification will set forth as precisely as possible, and to the extent that security considerations permit, the factual basis for the denial in relation to the standard set forth in § 9b.6. This notification will be sent by registered mail and will be signed by the Director of the Office of Press Relations of the Department of State.
§ 9b.8 Term and renewal of Department of State press building passes.
(a) Department of State press building passes for U.S. citizens are issued with three years’ validity. Subject to positive completion of an international background check, passes for non-U.S. citizens are issued with one year’s validity and may be renewed for three years. Notwithstanding its initial validity, any press building pass that has not been used for a twelve-month period, as recorded by the Bureau of Diplomatic Security’s turnstyle entry devices, will become invalid at the end of that twelve-month period.
(b) For any valid passes issued before October 1, 1995, notification shall be sent by the Department of State to the holder of the pass that the pass has become invalid by reason of lack of use for 12-month period. However, failure of the holder for any reason to receive such a notification shall not affect the invalidity of the pass. Anyone whose pass has become invalid may apply for a new pass in accordance with §§ 9b.2 through 9b.5.
SUBCHAPTER B – PERSONNEL
PART 11 – APPOINTMENT OF FOREIGN SERVICE OFFICERS
§ 11.10 Links to relevant provisions of the Foreign Affairs Manual.
(a) The Foreign Affairs Manual (FAM) is the formal written document for recording, maintaining, and issuing Department of State (Department) directives that address personnel and other matters. It is the primary authority for appointment of current Department employees to the Foreign Service. This part is the primary authority for the appointment of non-employees to the Foreign Service. The FAM provides Department procedures and policies that are not repeated in this part. It is an important resource for understanding the provisions of this part.
(b) The two FAM volumes relevant to this part are Volume 3, Personnel, and Volume 16, Medical. FAM provisions are cited by volume followed by chapter or subchapter – for example, Chapter 210 of Volume 16 would be cited 16 FAM 210. All of the relevant FAM provisions are on the Department’s public Web site. The links for the relevant FAM provisions are as follows:
| 3 FAM 2215 | |
| 3 FAM 2216.2 | |
| 3 FAM 2216.3 | |
| 3 FAM 2217 | |
| 3 FAM 2218 | |
| 3 FAM 2245 | |
| 3 FAM 2250 | |
| 3 FAM 2251.3 | |
| 3 FAM 2290 | |
| 16 FAM 210 |
§ 11.20 Entry-level Foreign Service Officer career candidate appointments.
(a) General considerations – (1) Authority. Pursuant to section 302 of the Foreign Service Act of 1980 (hereinafter referred to as “the Act”), all Foreign Service Officers shall be appointed by the President, by and with the advice and consent of the Senate. All appointments shall be made to a class and not to a particular post. No person shall be eligible for appointment as a Foreign Service Officer unless that person is a citizen of the United States, is twenty-one, and is world-wide available. Pursuant to section 306 of the Act, such appointment is initially a career-candidate appointment. The tenuring of Foreign Service Officer career candidates is governed by the provisions of 3 FAM 2245.
(2) Veterans’ preference. Pursuant to section 301 of the Act, the fact that an applicant for appointment as a Foreign Service Officer candidate is a veteran or disabled veteran, as defined in 5 U.S.C. 2108, must be considered as an affirmative factor in making such appointments.
(3) Policy. Appointment as an Entry Level Foreign Service Officer career candidate of class 6, 5, or 4 is governed by these regulations. Successful applicants will be appointed as career candidates for a period not to exceed 5 years. Under precepts of the Commissioning and Tenure Board, career candidates may be granted tenure and recommended for appointment as career Foreign Service Officers. Those who are not granted tenure prior to the expiration of their career-candidate appointments will be separated from the Foreign Service. Separated candidates who originally were employees of an agency and who accepted a limited appointment to the Foreign Service with the consent of the head of the agency in which they were employed will be entitled to reemployment rights in their former agency in accordance with section 310 of the Act.
(b) The Foreign Service Officer Test (FSOT). The following regulations apply to the FSOT:
(1) Purpose. The FSOT is designed to enable the Board of Examiners for the Foreign Service to test the applicant’s knowledge, skills, and abilities, including writing skills that are necessary to the work of a Foreign Service Officer.
(2) Eligibility. Before each FSOT, the Board of Examiners will establish a closing date for the receipt of applications for designation to take the test. No person will be designated to take the test who has not, as of that closing date, filed a complete application with the Board. To be designated to take the FSOT, an applicant, as of the date of the test, must be a citizen of the United States and at least 20 years of age.
(3) When and where given. The FSOT will be given periodically, in designated cities in the United States and at selected locales abroad, on dates established by the Board of Examiners and publicly announced on careers.state.gov.
(4) Scoring. The several parts of the FSOT will be weighted and graded according to standards established by the Board of Examiners. The Board of Examiners may adjust the passing score of the FSOT to reflect the projected hiring needs of the Foreign Service.
(c) Qualifications Evaluation Panel (QEP). The following regulations apply to the QEP:
(1) Purpose. Each QEP is designed to enable the Board of Examiners for the Foreign Service to review each candidate’s file and evaluate it against established precepts of successful Foreign Service Officer performance. The QEPs rank order candidates within each career track.
(2) Panels. QEPs are career track specific and are staffed by panelists approved by the Board of Examiners from a roster of qualified active duty and retired Foreign Service Officers. At least one of the panelists will be from the same career track as those in the candidate pool.
(3) Eligibility. Candidates whose score on the FSOT is at or above the passing level set by the Board of Examiners will be invited to submit their responses to Personal Narrative Questions. The questions, linked to the Foreign Service performance precepts, are designed to elicit specific examples of past performance where the candidate demonstrated the requisite precept.
(4) When administered. The Board of Examiners holds one session of QEPs following each FSOT.
(5) Scoring. Panelists will score files according to standards established by the Board of Examiners. The candidacy of anyone whose score is at or above the passing level set by the Board of Examiners will continue. The candidacy of anyone whose score is below the passing level will be ended and may not be considered again until the candidate has passed a new FSOT, at minimum of a year later. The Board of Examiners sets the passing score for each QEP based on the projected hiring needs of the Foreign Service. All candidates exempt from the FSOT, except Mustang applicants, are also exempt from review by a QEP.
(i) The Board of Examiners may authorize QEPs to give special consideration in the selection of candidates to certain factors, e.g., demonstrating language ability, which the Board will publicly announce on careers.state.gov.
(ii) The Board of Examiners may choose to verify accounts given by candidates in their personal narratives.
(d) Foreign Service Oral Assessment (FSOA). The following regulations apply to the FSOA:
(1) Purpose. The FSOA is designed to enable the Board of Examiners for the Foreign Service to test the candidate’s ability to demonstrate the qualities or dimensions that are essential to the successful performance of Foreign Service work. The FSOA for the Entry Level Foreign Service Officer Career Candidate Program will consist of an assessment procedure publicly announced by the Board of Examiners on careers.state.gov. The process is generally referred to as the Foreign Service Oral Assessment or FSOA.
(2) Eligibility – (i) Through the FSOT and QEP review. (A) Candidates who pass the FSOT and whose score on the QEP review is at or above the passing level set by the Board of Examiners will be invited to take the FSOA.
(B) Candidates must schedule the FSOA within 12 months of receiving their invitation to take the FSOA unless they receive an extension of time. Candidates may request an extension of up to an additional 12 months. Active duty military have unrestricted time to take an FSOA if they notify the Board of Examiners of their active duty status. Failure to take the FSOA within 12 months of the invitation will result in the cancellation of the candidacy, unless the candidate has requested and obtained an extension of eligibility. The candidacy of anyone for whom the scheduling period is extended by the Board due to being outside of the United States will automatically be terminated if the candidate fails to notify his or her registrar of the change in status within three months of returning to the United States. The candidate must schedule an FSOA, but if a candidate fails to appear for a scheduled FSOA, the candidacy is automatically terminated. The Director of the Office of Recruitment, Examination, and Employment in the Bureau of Human Resources, or his/her designee, will consider requests to reschedule on a case-by-case basis if a candidate so requests prior to his/her scheduled FSOA.
(ii) Through the Mustang Program. Career employees of the Department of State in classes FS-6 and above or grades GS-5 and above who are at least 21 years of age and who have at least three years of service with the Department may be selected by the Board of Examiners for admission to the FSOA for Entry Level Career Candidates under the Department’s Mustang Program. Mustang candidates must meet all program requirements and submit all application material to be considered for the Mustang Program. See the procedures set forth in 3 FAM 2216.2-4 (Foreign Service Officer Oral Assessment (FSOA)).
(iii) Through a mid-level conversion program. Employees of the Department of State in grade GS-13 and above are eligible to apply to enter the Foreign Service through a mid-level conversion program (see 3 FAM 2216.3-2) whenever held.
(iv) Through other programs. (A) Under programs established pursuant to section 105(d)(1) of the Act, which addresses diversity within the Foreign Service.
(B) Under any other special entry programs created by the Department to meet specific needs of the Foreign Service.
(3) When and where given. The FSOA will be held intermittently in Washington, DC, and may be held in selected cities in the United States or abroad as necessary, as publicly announced.
(4) Assessment panel. (i) The FSOA will be given by a panel of assessors approved by the Board of Examiners from a roster of active duty and/or retired Foreign Service Officers.
(ii) Service as an assessor shall be limited to a maximum of 5 years, unless a further period is specifically authorized by the Board. Normally assessment panels shall be chaired by a career officer of the Foreign Service, trained in personnel testing and evaluation. Determinations of duly constituted panels of assessors are final unless modified by specific action of the Board of Examiners.
(5) Scoring. Candidates taking the FSOA will be scored numerically according to standards established and publicly announced by the Board of Examiners, in places such as careers.state.gov. The candidacy of anyone whose score is at or above the passing level set by the Board will be continued. The candidacy of anyone whose score is below the passing level will be terminated.
(e) Background investigation. Candidates who pass the FSOA and elect to continue the hiring process will be subject to a background investigation. The background investigation must be conducted to determine the candidate’s eligibility for a security clearance and serves as the basis for determining suitability for appointment to the Foreign Service (see 3 FAM 2212.1 (Security Investigation)).
(f) Medical examination – (1) Eligibility. Candidates who pass the oral assessment and elect to continue the hiring process must undergo a medical examination. See the procedures in of 16 FAM 210 (Medical Clearances).
(2) [Reserved]
(g) Suitability Review Panel. Generally after the medical clearance has been issued and the background investigation is received, the candidate’s entire file (excluding any medical records) is reviewed and evaluated by the Suitability Review Panel to determine the candidate’s suitability for the Foreign Service. See the procedures in 3 FAM 2215 (Suitability Review). The candidacy of any candidate who is determined by the Suitability Review Panel to be unsuitable for appointment shall be terminated and the candidate so informed. According to procedures established by the Board of Examiners, a candidate may appeal this decision to the Board of Examiners Staff Director or designee whose decision will be final. The Bureau of Diplomatic Security (DS) will re-submit applicants to the Suitability Review Panel if they are found to have falsified information in the application process or are found to have disqualifying factors.
(h) Certification for appointment – (1) Eligibility. (i) A candidate will not be certified as eligible for appointment as a Foreign Service Officer Career Candidate unless that candidate is at least 21 years of age and a citizen of the United States.
(ii) Except for preference eligible individuals, career candidate appointments must be made before the candidate’s 60th birthday. Preference eligible individuals must be appointed before their 65th birthday. The maximum age for appointment under this program is based on the requirement that all career candidates must be able to:
(A) Complete at least two full tours of duty, exclusive of orientation and training;
(B) Complete the requisite eligibility period for tenure consideration; and
(C) Complete the requisite eligibility period to receive retirement benefits, prior to reaching the mandatory retirement age of 65 prescribed by the Act.
(iii) A candidate may be certified as eligible for direct appointment to classes FS-6, FS-5 or FS-4 based on established, publicly available, criteria.
(iv) Employees who receive a career candidate appointment, i.e., who are untenured, have five years to obtain tenure. These career-candidate appointments, including the appointment of an individual who is the employee of any agency, may not exceed five years in duration, and may not be renewed or be extended beyond five years. A candidate denied tenure under 3 FAM 2250 may not be reappointed as a career candidate to become a generalist.
(2) Career-track rank-order registers. The Board of Examiners maintains separate rank-order registers for career candidates in administrative, consular, economic, public diplomacy and political career tracks within the Department of State. Appointments from each career-track register will be made in rank order according to hiring needs.
(3) Special programs. Mustang candidates who are career employees of the Department of State and who have satisfactorily completed all aspects of the assessment process will be certified by the Board of Examiners for placement on the Hiring Register to compete for a hiring opportunity as a Foreign Service Officer. Mustang candidates who have previously passed the FSOT/QEP will continue in the career track they selected when registering for the FSOT and be placed on the appropriate career track register.
(4) Foreign language requirement. A candidate may be certified for appointment to classes FS-6, FS-5, or FS-4 without first having passed an examination in a foreign language, but the appointment will be subject to the condition that the newly appointed career candidate may not be appointed as a career Foreign Service Officer unless, within a specified period of time, proficiency in a foreign language is achieved.
(i) Termination of eligibility – (1) Time limit. Candidates who have qualified but have not been appointed because of lack of openings will be removed from the rank-order register 18 months after the date of placement on the rank-order register. Time spent in civilian Federal Government service abroad (to a maximum of 2 years of such service), including Peace Corps volunteer service, spouses of Foreign Service officers, or in active regular or reserve military service (no maximum), will not be counted as part of the 18-month eligibility period.
(2) Extension. The Board of Examiners may extend the eligibility period when such extension is, in its discretion, justified by the needs of the Foreign Service.
(3) Postponement of entrance on duty. Postponement of entrance on duty because of civilian Federal Government service abroad (to a maximum of 2 years of such service), including Peace Corps volunteer service, or as spouse of a Foreign Service Officer, or active regular or reserve military service (to a maximum of the limit of such required service), may be authorized by the Board.
(j) Travel expenses. The travel and other personal expenses of candidates incurred in connection with the written and oral examination will not be borne by the Government. However, the participating foreign affairs departments may issue round-trip invitational travel orders to bring candidates to Washington, DC, at government expense, when it is determined by the agencies that this is necessary in the interest of the Foreign Service.
§ 11.30 Mid-level Foreign Service Officer career candidate appointments. [Reserved]
§ 11.40 Senior Foreign Service Officer career candidate appointments. [Reserved]
§ 11.50 Foreign Service specialist career candidate appointments.
(a) General considerations. (1) Pursuant to section 303 of the Act, the Secretary may appoint individuals to the Foreign Service (other than those who are in the personnel categories specified in section 302(a) of the Act). Pursuant to section 306 of the Act, such appointment is initially a career candidate appointment. Section 303 governs the appointment by the Department of State of Foreign Service specialist career candidates to classes FS-1 and all classes below. Specialist candidates comprise all candidates for career appointment in all career tracks other than generalist career tracks (i.e., management, consular, economic, political, and public diplomacy). The tenuring of specialist career candidates is governed by the procedures in 3 FAM 2250.
(2) Veterans’ preference shall apply to the selection and appointment of Foreign Service specialist career candidates. Veterans’ preference is an affirmative factor once the candidate has been qualified for the position. As soon as veterans go on the Hiring Register, they may apply for additional points to increase their rank order standing.
(b) Specialist career candidate appointments – (1) Certification of need. (i) Candidates for appointment as specialist career candidates must be world-wide available and must have a professional or a functional skill for which there is a continuing need in the Foreign Service. No applicant shall be appointed for which there is no certified need established at a specific class level. Either the Director General may determine in advance which specialties are routinely or frequently in shortage or need periodic recruitment through publicly posted vacancy announcements, or the Director General may certify that there is a need for an applicant in a specific specialist category and at a specific class.
(ii) Candidates who receive a career candidate appointment, i.e., who are untenured, have four years with the possibility of five years (see 3 FAM 2251.3) to obtain tenure. These appointments, including the appointment of an individual who is the employee of any agency, may not exceed five years in duration, and may not be renewed or be extended beyond five years. A specialist candidate denied tenure under 3 FAM 2250 generally may not be reappointed as a career candidate in the same career track.
(2) Eligibility. An applicant must be a citizen of the United States and at least 20 years of age. The minimum age for appointment as a career candidate is 21. Except for preference eligible candidates, all career candidate appointments shall be made before the candidate’s 60th birthday. Preference eligible candidates may be appointed up to their 65th birthday. The maximum age for appointment under the program is based on the requirement that all career candidates shall be able to:
(i) Complete at least two full tours of duty, exclusive of orientation and training,
(ii) Complete the requisite eligibility period for tenure consideration, and
(iii) Complete the requisite eligibility period to receive retirement benefits, prior to reaching the mandatory retirement age of 65 prescribed by the Act.
(3) Screening. (i) Specialist career candidates will be screened initially on the basis of education and experience.
(ii) Based on a job analysis, the Board of Examiners, in coordination with any bureau responsible for the specialty, will establish the knowledge, skills, and abilities required to perform successfully the tasks and duties of Foreign Service specialists in that functional field. Assessors working for the Board of Examiners will screen applications under those approved criteria and select those who meet the requirements to invite to an oral assessment.
(4) Oral assessment. Candidates are selected through the initial screening process. The oral assessment will be given by a panel of assessors, at least one of whom will be a career Foreign Service employee proficient in the functional field for which the candidate is being tested. The assessment may include a writing sample. Candidates taking the oral assessment will be scored numerically according to standards set by the Board of Examiners. The candidacy of anyone whose score is at or above the passing level set by the Board will be continued. The candidacy of anyone whose score is below the passing level will be terminated. The candidate may only reapply after the first anniversary date of the original application.
(5) Background investigation. Specialist candidates who pass the oral assessment and elect to continue the hiring process will be subject to a background investigation. The background investigation must be conducted to determine the candidate’s eligibility for a security clearance and serves as the basis for determining suitability for appointment to the Foreign Service (see 3 FAM 2212.1-1 (Security Investigation)).
(6) Medical examination. Candidates who pass the oral assessment and elect to continue the hiring process must undergo a medical examination. See the procedures in 16 FAM 210 (Medical Clearances).
(7) Suitability Review Panel. After the medical examination clearance has been issued and the background investigation is received, the candidate’s entire file (excluding any medical records) is reviewed and evaluated by a Suitability Review Panel to determine the candidate’s suitability for the Foreign Service. See the procedures in 3 FAM 2215 (Suitability Review). According to procedures established by the Board of Examiners, a candidate may appeal this decision to the Board of Examiners Staff Director or designee, whose decision will be final. DS will re-submit applicants to the Suitability Review Panel if they are found to have falsified information on their application or are found to have disqualifying factors.
§ 11.60 Limited non-career appointments.
Consistent with section 303 of the Act (22 U.S.C. 3943), the Secretary of State may also appoint Civil Service employees and other individuals to the Foreign Service, and, consistent with section 309 of the Act (22 U.S.C. 3949), such appointments may include limited non-career appointments (LNAs). After meeting the job specific requirements, candidates must meet applicable medical, security, and suitability requirements. Limited non-career appointments are covered under 3 FAM 2290.
PART 12 – COMPLAINTS AGAINST EMPLOYEES BY ALLEGED CREDITORS
§ 12.1 No cognizance taken of complaint.
The Department of State will take no cognizance of a complaint against an employee by an alleged creditor, so far as the complainant is concerned, beyond acknowledging receipt of his communication.
§ 12.2 Claimants denied access to employees.
Persons claiming to be creditors or collectors of debts or claims will be denied access to employees for the purpose of presenting or collecting claims during the hours set apart for the transaction of public business or while the employees concerned are on duty.
PART 13 – PERSONNEL
§ 13.1 Improper exaction of fees.
Any consular officer who collects, or knowingly allows to be collected, for any services any other or greater fees than are allowed by law for such services, shall, besides his or her liability to refund the same, be liable to pay to the person by whom or in whose behalf the same are paid, treble the amount of the unlawful charge so collected, as a penalty. The refund and penalty may be recovered with costs, in any proper form of action, by such person for his or her own use. The amount of such overcharge and penalty may at the discretion of the Secretary of the Treasury be ordered withheld from the compensation of such officer for payment to the person entitled to the same (22 U.S.C. 4209).
The foregoing relates to improper collection and personal withholding of funds by consular officers. For procedure where a collection, having been erroneously made, has been returned by the officer to the Treasury in good faith, making a subsequent accounting adjustment necessary, see § 22.6, Refund of fees of this chapter.
§ 13.2 Embezzlement.
Every consular officer who shall receive money, property, or effects belonging to a citizen of the United States and shall not within a reasonable time after demand made upon him or her by the Secretary of State or by such citizen, his or her executor, administrator, or legal representative, account for and pay over all moneys, property, and effects, less his or her lawful fees, due to such citizen, shall be deemed guilty of embezzlement, and shall be punishable by imprisonment for not more than five years, and by a fine of not more than $2,000 (22 U.S.C. 4217). Penalties of imprisonment and fine are also prescribed for embezzlement in connection with the acceptance, without execution of a prescribed form of bond, of appointment from any foreign state as administrator, guardian, or to any other office of trust for the settlement or conservation of estates of deceased persons or of their heirs or of persons under legal disabilities (22 U.S.C. 4198 and 4199). Acceptance of such appointments is not ordinarily permitted under existing regulations. See § 92.81 of this chapter.
§ 13.3 [Reserved]
§ 13.4 False certificate as to ownership of property.
If any consul of vice consul falsely and knowingly certifies that property belonging to foreigners is property belonging to citizens of the United States, he or she shall be punishable by imprisonment for not more than three years, and by a fine of not more than $10,000 (22 U.S.C. 4218).
PART 16 – FOREIGN SERVICE GRIEVANCE SYSTEM
§ 16.1 Definitions.
(a) Act means the Foreign Service Act of 1946, as amended.
(b) Grievant means any officer or employee of the Service who is a citizen of the United States; or for purposes of paragraphs (c) (7) and (8) of this section, a former officer or employee of the Service; or in the case of death of the officer or employee, a surviving spouse or dependent family member of the officer or employee.
(c) Grievance means any act or condition subject to the control of the Foreign Affairs agencies (the Department of State, the Agency for International Development, or the U.S. Information Agency) which is alleged to deprive the grievant of a right or benefit authorized by law or regulation or is otherwise a source of concern or dissatisfaction to the grievant, including, but not limited to the following:
(1) Complaints against separation of an officer or employee allegedly contrary to law or regulation or predicated upon alleged inaccuracy (including inaccuracy resulting from omission or any relevant and material document), error, or falsely prejudicial character of any part of the grievant’s official personnel record;
(2) Other alleged violation, misinterpretation, or misapplication of applicable law, regulation, or published policy affecting the terms and conditions of the grievant’s employment or career status;
(3) Allegedly wrongful disciplinary action against an employee constituting a reprimand or suspension from official duties;
(4) Dissatisfaction with any matter subject to the control of the agency with respect to the grievant’s physical working environment;
(5) Alleged inaccuracy, error, or falsely prejudicial material in the grievant’s official personnel file;
(6) Action alleged to be in the nature of reprisal or other interference with freedom of action in connection with an employee’s participation under these grievance procedures;
(7) When the grievant is a former officer who was involuntarily retired pursuant to sections 633 and 634 of the Act within 6 years prior to December 1, 1975, “grievance” shall mean a complaint that such involuntary retirement violated applicable law or regulation effective at the time of the retirement or that the involuntary retirement was predicated directly upon material contained in the grievant’s official personnel file alleged to be erroneous or falsely prejudicial in character; and
(8) When the grievant is a former officer or employee or a surviving spouse or dependent family member of a former officer or employee, “grievance” shall mean a complaint that an allowance or other financial benefit has been denied arbitrarily, capriciously or contrary to applicable law or regulation.
(d) Grievance does not include the following:
(1) Complaints against individual assignment or transfers of Foreign Service officers or employees, which are ordered in accordance with law and regulation (see also paragraph (c)(2) of this section);
(2) Judgments of Selection Boards rendered pursuant to section 623 of the Act, or of equivalent bodies, in ranking Foreign Service officers and employees for promotion on the basis of merit, or judgments in examinations prescribed by the Board of Examiners pursuant to section 516 or 517 of the Act (see also paragraph (c)(2) of this section);
(3) Termination of time-limited appointments pursuant to 22 U.S.C. 929 and 1008, and the pertinent regulations prescribed by the employing agency (see also paragraph (c)(2) of this section);
(4) Any complaints or appeals for which a specific statutory appeals procedure exists (see appendix A for examples).
(e) Employee organization means any employee organization accorded recognition as the excusive employee representative pursuant to Executive Order 11636 dated December 17, 1971.
(f) Grievance Board or Board means the full Foreign Service Grievance Board, or a Panel or member thereof, as appropriate.
(g) Party means the grievant or the Foreign Affairs agency having control over the act or condition forming the subject matter of the grievance.
(h) Bureau means equivalent organizational elements in State and USIA, and includes offices in AID.
(i) Days means calendar days.
§ 16.2 General provisions.
(a) Statement of purpose. These regulations establish procedures as required by law to provide Foreign Service officers and employees (and their survivors) of the Foreign Affairs agencies, a grievance procedure to insure a full measure of due process, and to provide for the just consideration and resolution of grievances of such officers, employees, and survivors. No regulation promulgated in this part shall be interpreted or applied in any manner which would alter or abridge the provisions of the due process established by the Congress in Pub. L. 94-141, 22 U.S.C. 1037, section 691.
(b) Discussion of complaints. (1) Every effort should be made to settle any employee complaint informally, promptly, and satisfactorily.
(2) Supervisors and other responsible officers should encourage employees to discuss complaints with them and should respond in a timely manner to resolve the complaints.
(3) An employee initially should discuss a complaint with the employee’s current supervisor or with the responsible officer who has immediate jurisdiction over the complaint to give that person an opportunity to resolve the matter, before further steps are taken under these procedures.
(c) Guidance. Nothing in these procedures prevents a grievant from seeking guidance from any official who might be helpful respecting the submission of a grievance or its resolution.
(d) Freedom of action. (1) Any grievant, witness, representative or other person involved in a proceeding hereunder shall be free from any restraint, interference, coercion, harassment, discrimination, or reprisal in those proceedings or by virtue of them. The Foreign Affairs agencies recognize their obligation to insure compliance with this section. Any person involved or having immediate knowledge of any alleged breach of this section should call it to the attention of the pertinent foreign affairs agency through appropriate channels for corrective action as necessary. Normally such allegations should be brought to the attention of the senior agency official at the post; and at Washington, DC, to the Director, Grievance Staff for State; Chief, Employee Relations Branch for AID and Chief, Employee-Management Relations Division for USIA.
(2) The grievant has the right to a representative of the grievant’s own choosing at every stage of the proceedings. The grievant and repre- sentative(s) who are under the control, supervision, or responsibility of the Foreign Affairs agencies shall be granted reasonable periods of administrative leave to prepare, to be present, and to present the grievance.
(3) Any witness under the control, supervision, or responsibility of a Foreign Affairs agency shall be granted reasonable periods of administrative leave to appear and testify at any such proceeding.
(4) The Foreign Service Grievance Board established hereunder shall have authority to ensure that no copy of the determination of the agency head or designee to reject a Grievance Board recommendation, no notation of the failure of the Grievance Board to find for the grievant, and no notation that a proceeding is pending or has been held, shall be entered in the personnel records of the grievant (unless by order of the Grievance Board as a remedy for the grievance) or those of any other officer or employee connected the grievance. The Foreign Affairs agencies shall maintain grievance records under appropriate safeguards to preserve confidentiality (§ 16.9).
§ 16.3 Access to records.
(a) Grievance Board records. The grievant and the grievant’s representative shall have access to the record of proceedings, including the decision of the Board.
(b) Agency records. (1) In considering the validity of a grievance, the Grievance Board shall have access, to the extent permitted by law, to any agency record considered by the Board to be relevant to the grievant and the subject matter of the grievance.
(2) The agency shall, subject to applicable law, promptly furnish the grievant any agency record which the grievant requests to substantiate the grievance and which the agency or the Grievance Board determines is relevant and material to the proceeding. When deemed appropriate by the agency or the Board, a grievant may be supplied with only a summary of extract of classified material. If a request by a grievant for a document is denied prior to or during the agency’s consideration of a grievance, such denial may be raised by the grievant as an integral part of the grievance before the Board.
(3) These regulations do not require disclosure of any official agency record to the Grievance Board or a grievant where the head of agency or deputy determines in writing that such disclosure whould adversely affect the foreign policy or national security of the United States.
§ 16.4 Time limits for grievance filing.
(a) A grievance concerning a continuing practice or condition may be presented at any time if its adverse effect is presently continuing. Documents contained in official employee personnel files, for example, shall be deemed to constitute a continuing condition.
(b) Subject to paragraph (a) of this section, a grievance under these regulations is forever barred, and the Grievance Board shall not consider or resolve the grievance, unless the grievance is presented within a period of 3 years after the occurrence or occurrences giving rise to the grievance, except that if the grievance arose earlier than 2 years prior to the effective date of these regulations, the grievance shall be so barred, and no considered and resolved, unless it is presented within a period of 2 years after the effective date of these regulations, There shall be excluded from the computation of any such period any time during which the grievant was unaware of the grounds which are the basis of the grievance and could not have discovered such grounds if the grievant had exercised, as determined by the Grievance Board, reasonable diligence.
(c) A grievance shall be deemed presented to the responsible official (§ 16.7(b)), transmitted to post or bureau (§ 16.7(c)) submitted for agency review (§ 16.8) or filed with the Grievance Board § 16.11(a):
(1) On the date of its dispatch by telegram, registered or certified mail, or receipted mail, in a diplomatic pouch;
(2) On the date of its arrival at the appropriate office, if delivered by any other means.
§ 16.5 Relationship to other remedies.
(a) A grievant may not file a grievance under these procedures if the grievant has formally requested, prior to filing a grievance, that the matter or matters which are the basis of the grievance be considered or resolved and relief be provided, under another provision of law, regulation, or executive order, and the matter has been carried to final decision thereunder on its merits or is still under consideration.
(b) If a grievant is not prohibited from filing a grievance under these regulations by paragraph (a) of this section, the grievant may file under these regulations notwithstanding the fact that such grievance may be eligible for consideration, resolution, and relief under a regulation or executive order other than under these regulations, but such election of remedies shall be final upon the acceptance of jurisdiction by the Board.
§ 16.6 Security clearances.
The agencies shall use their best endeavors to expedite security clearances whenever necessary to ensure a fair and prompt investigation and hearing.
§ 16.7 Agency procedures.
(a) Initial consideration. (1) Grievances shall be considered through the steps provided in this section before they are filed with the Grievance Board.
(2) During the pendency of agency procedures under this section, the grievant may request a suspension of the proposed action of the character of separation or termination of the grievant, disciplinary action against the grievant, or recovery from the grievant of alleged overpayment of salary, expenses or allowances, which is related to the grievance. The request must be in writing and addressed to the responsible official of the agencies, as designated in § 16.8(a)(2) stating the reasons for such suspension. If the request is related to separation or termination of the grievant, and the agency considers that the grievance is not frivolous and is integral to the proposed action, the agency shall suspend its proposed action until completion of agency procedures, and for a period thereafter if necessary, consistent with paragraph (a) of § 16.11, to permit the grievant to file a grievance with the Board, and to request interim relief under paragraph (c) of § 16.11. If a request is denied, the agency shall provide the grievant in writing the reason for denial. Nothing in these regulations shall be deemed to preclude an employee from requesting the suspension of any proposed action.
(b) Consideration by responsible officer. (1) While every effort should be made to resolve a complaint by an initial discussion between an employee and the supervisor or responsible officer, an employee may present the complaint as a grievance by submitting it in writing, to that person. (The term “responsible officer” as used herein includes any appropriate officer who has immediate jurisdiction over the complaint.) The presentation shall include a description of the act or condition which is the subject of the grievance; its effect on the grievant; any provision of law, regulation, or agency policy which the grievant may believe was violated or misapplied; any documentary evidence readily available to the grievant on which the grievance rests; the identity of individuals having knowledge of relevant facts; and a statement of the remedial action requested.
(2) The responsible officer, whenever possible, shall use independent judgment in deciding whether the grievance is meritorious and what the resolution of it should be. Within 15 days from receipt of the written grievance, the responsible officer shall provide the grievant with a written response, which shall include a statement of any proposed resolution of the grievance.
(3) If the response denies in whole or in part the remedial action requested, such response shall notify the grievant of the time within which to appeal the decision, and identity of the senior official, or designee, to whom the appeal should be addressed. In those cases in which the senior official, or designee, is the responsible officer to whom the grievance was initially presented or has participated in the decision process and has formally approved the written response of the responsible officer, the grievant shall be so notified and advised that the grievance may be submitted directly to the agency for review under § 16.8.
(c) Bureau or post review. (1) If the responsible officer’s written response does not resolve the grievance to the grievant’s satisfaction, within 10 days of receiving it (or, if no response is received, within 25 days after first presenting the grievance), the grievant may pursue the grievance by transmitting it in writing to the senior official, or the designee in the bureau or post which has authority to resolve the grievance. The written transmission shall include all the information required by paragraph (b)(1) of this section and copies of any correspondence under paragraphs (b) (2) and (3) of this section.
(2) Within 15 days from receipt of the grievance that official shall provide the grievant with a written decision, including any proposed resolution of the grievance. If the decision denies in whole or in part the remedial action requested, the communication shall notify the grievant of the time within which to submit the grievance for agency review and the identity of the appropriate agency official to whom the grievance should be addressed.
§ 16.8 Agency review.
(a) Submission. (1) An employee may submit the grievance for agency review if the grievance (i) is not within the jurisdiction of a post or bureau, or (ii) the grievance has been considered but not resolved to the grievant’s satisfaction within the post or bureau as provided in § 16.7(c) within 10 days after receipt of the post’s or bureau’s decision (or, if no response is received, within 25 days after presenting it to the senior official or the designee). The grievant shall submit it in writing to the responsible official of the agency which has control of the act or condition which is the subject of the grievance.
(2) Responsible officials. The responsible officials of the agencies are the Deputy Assistant Secretary for Personnel (State), the Director of Personnel and Manpower (AID), and the Chief, Employee-Management Relations Division (USIA).
(3) Contents. (i) A request for agency review shall include a description of the act or condition which is the subject of the grievance; its effect on the grievant; any provision of law, regulation or agency policy which the grievant may believe was violated or misapplied; copies of any correspondence under § 16.7(a), any documentary evidence readily available to the grievant on which the grievance rests; the identity of individuals having knowledge of relevant facts; and a statement of the remedial action requested.
(ii) The responsible official shall review the grievance on the basis of available documentary evidence, and, in that official’s discretion, interview persons having knowledge of the facts. The agency review shall be completed and its decision dispatched within 90 days from the date of the initial written presentation of the grievance. The grievant shall be informed in writing of the findings of the responsible official and any proposed resolution of the grievance. The communication shall also include the time within which the grievant may file a grievance with the Grievance Board and the appropriate procedure to be followed in this respect.
§ 16.9 Records.
All official records concerning agency consideration of grievances, except those appropriate to implementation of decisions favorable to grievants, shall be kept separate from the official personnel record of the grievant and any other individuals connected with the grievance, and shall not be accessible to agency personnel other than the grievant, the grievant’s representative, and those responsible for consideration of grievances.
§ 16.10 Foreign Service Grievance Board.
(a) Establishment and composition. There is hereby established a Foreign Service Grievance Board for the Department of State, the Agency for International Development and the U.S. Information Agency to consider and resolve grievances under these procedures.
(b) The Grievance Board shall consist of not less than 5 members nor more than 15 members (including a chairperson) who shall be independent, distinguished citizens of the United States, well known for their integrity, who are not active officers, employees, or consultants of the Foreign Affairs agencies (except consultants who served as public members of the Interim Grievance Board previously established under section 660, Volume 3, Foreign Affairs Manual) but may be retired officers or employees. On its initial establishment, the Board shall consist of 15 members including chairperson.
(c) The Board may act by or through panels or individual members designated by the chairperson, except that hearings within the continental United States shall be held by panels of at least three members unless the parties agree otherwise. Reference in these regulations to the Grievance Board shall be considered to be reference to a panel or member of the Grievance Board where appropriate. All members of the Grievance Board shall act as impartial individuals in considering grievances.
(d) The members of the Grievance Board, including the chairperson, shall be appointed by the Secretary of State after being designated by the written agreement of the Foreign Affairs agencies and the employee organization.
(e) The Board chairperson and other members shall be appointed for terms of 2 years, subject to renewal upon the agreement of the Foreign Affairs agencies and the employee organization; except that the terms of 7 of the initially appointed members shall expire at the end of one year.
(f) Any vacancies shall be filled by the Secretary of State upon the nomination by the Board following the agreement of the agencies and the employee organization.
(g) Compensation. Members, including the chairperson, who are not employees of the Federal Government shall receive compensation for each day they are performing their duties as members of the Grievance Board (including travel time) at the daily rate paid an individual at GS-18 level of the General Schedule under section 5332 of title 5 of the United States Code.
(h) Removal. Grievance Board members shall be subject to removal by the Secretary of State for corruption, other malfeasance, or the demonstrated incapacity to perform their functions. No member shall be removed from office until after the Board of the Foreign Service has conducted a hearing and made its recommendations in writing to the Secretary of State, except where the right to a hearing is waived in writing. The Board of the Foreign Service shall provide a member with full notice of the charges against that member, and afford a member the right to counsel, to examine and cross-examine witnesses, and to present documentary evidence.
(i) Grievance Board procedures. In accordance with part J, title VI of the Act, the Board may adopt regulations concerning the organization of the Board and such other regulations as mey be necessary to govern its proceedings.
(j) Board facilities and staff support. The Grievance Board may obtain facilities, services, and supplies through the general administrative services of the Department of State. All expenses of the Board, including necessary costs of the grievant’s travel and travel-related expenses, shall be paid out of funds appropriated to the Department for obligation and expenditure by the Board. At the request of the Board, officers and employees on the rolls of the Foreign Affairs agencies may be assigned as staff employees to the Grievance Board. Within the limit of appropriated funds, the Board may appoint and fix the compensation of such other employees as the Board considers necessary to carry out its functions. The officers and employees so appointed or assigned shall be responsible solely to the Grievance Board and the Board shall prepare the performance evaluation reports for such officers and employees. The records of the Grievance Board shall be maintained by the Board and shall be separate from all other records of the Foreign Affairs agencies.
§ 16.11 Grievance Board consideration of grievances.
(a) Filing of grievance. A grievant whose grievance is not resolved satisfactorily under agency procedures (§ 16.7) shall be entitled to file a grievance with the Grievance Board no later than 60 days after receiving the agency decision. In the event that an agency has not provided its decision within 90 days of presentation, the grievant shall be entitled to file a grievance with the Grievance Board no later than 150 days after the date of presentation to the agency. The Board may extend or waive, for good cause, the time limits stated in this section.
(b) Exhaustion of agency procedures. In the event that the Grievance Board finds that a grievance has not been presented for agency consideration or that a grievance has been expanded or modified to include materially different elements, the Board shall return the grievance to the official responsible for final agency review unless the agency waives any objection to Board consideration of the grievance without such review.
(c) Prescription of interim relief. If the Grievance Board determines that the agency is considering any action of the character of separation or termination of the grievant, disciplinary action against the grievant, or recovery from the grievant of alleged overpayment of salary, expenses, or allowances, which is related to a grievance pending before the Board, and that such action should be suspended, the agency shall suspend such action until the Board has ruled upon the grievance. Notwithstanding such suspension of action, the head of the agency concerned or a chief of mission or principal officer may exclude an officer or employee from official premises or from the performance of specified duties when such exclusion is determined in writing to be essential to the functioning of the post or office to which the officer or employee is assigned.
(d) Inquiry into grievances. The Board shall conduct a hearing at the request of a grievant in any case which involves disciplinary action, or a grievant’s retirement from the Service under sections 633 and 634 of the Act, or which in the judgment of the Board can best be resolved by a hearing or by presentation of oral argument. In those grievances in which the Board holds no hearing, the Board shall offer to each party the opportunity to review and to supplement, by written submission, the record of proceedings prior to its decision.
§ 16.12 Hearing.
(a) Appearances and representation. The grievant, a reasonable number of representatives of the grievant’s own choosing, and a reasonable number of agency representatives, are entitled to be present at the hearing. The Grievance Board may, after considering the views of the parties and any other individuals connected with the grievance, decide that a hearing should be open to others.
(b) Conduct of hearing. (1) Testimony at a hearing shall be given by oath or affirmation which any Board member or person designated by the Board shall have authority to administer.
(2) Each party shall be entitled to examine and cross-examine witnesses at the hearing or by deposition, and to serve interrogatories answered by the other party unless the Board finds such interrogatory irrelevant or immaterial. Upon request of the Board, or upon a request of the grievant deemed relevant and material by the Board, and agency shall promptly make available at the hearing or by deposition any witness under its control, supervision or responsibility, except that if the Board determines that the presence of such witness at the hearing is required for just resolution of the grievance, then the witness shall be made available at the hearing, with necessary costs and travel expenses provided by the agency.
(3) During any hearings held by the Board, any oral or documentary evidence may be received but the Board shall exclude any irrelevant, immaterial, or unduly repetitious evidence normally excluded in hearings conducted under the Administrative Procedures Act (5 U.S.C. 556).
(4) A verbatim transcript shall be made of any hearing and shall be part of the record of proceedings.
§ 16.13 Decisions.
(a) Upon completion of the hearing or the compilation of such record as the Board may find appropriate in the absence of a hearing, the board shall expeditiously decide the grievance on the basis of the record of proceedings. In each case the decision of the Board shall be in writing, shall include findings of fact, and shall include the reasons for the Board’s decision.
(b) If the Grievance Board finds that the grievance is meritorious, the Board shall have the authority within the limitations of the authority of the head of the agency, to direct the agency:
(1) To correct any official personnel record relating to the grievant which the Board finds to be inaccurate, erroneous, or falsely prejudicial;
(2) To reverse and administrative decision denying the grievant compensation including related within-class salary increases pursuant to section 625 of the Act or any other perquisite of employment authorized by law or regulation when the Board finds that such denial was arbitrary, capricious, or contrary to law or regulation;
(3) To retain in service and employee whose termination would be in consequence of the matter by which the employee is aggrieved;
(4) To reinstate with back pay, under applicable law and regulations, an employee where it is clearly established that the separation or suspension without pay of the employee was unjustified or unwarranted;
(5) To order an extension of the time of an employee’s eligibility for promotion to a higher class where the employee suffered career impairment in consequence of the matter by which the employee is aggrieved;
(6) To order that an employee be provided with facilities relating to the physical working environment which the employee has been denied arbitrarily, capriciously or in violation of applicable regulation.
(c) Such orders of the Board shall be final, subject to judicial review as provided for in section 694 of the Act, except that reinstatement of former officers who have filed grievances under § 16.1(c)(7) shall be presented as Board recommendations, the decision on which shall be subject to the sole discretion of the agency head or designee, who shall take into account the needs of the Service in deciding on such recommendations, and shall not be subjected to judicial review under section 694 of the Act. The reason(s) for the agency head’s (or designee’s) decision will be conveyed in writing to the Board and the grievant.
(d) If the Board finds that the grievance is meritorious and that remedial action should be taken that directly relates to promotion or assignment of the grievant, or to other remedial action, including additional step increases, not provided for in paragraph (b) of this section, or if the Board finds that the evidence before it warrants disciplinary action against any officer or employee, it shall make an appropriate recommendation to the head of the agency, and forward to the head of the agency the record of the Board’s proceedings, including the transcript of the hearing, if any. The head of the agency (or designee, who shall not have direct responsibility for administrative management) shall make a written decision to the parties and to the Board on the Board’s recommendation within 30 days from receipt of the recommendation. A recommendation of the Board may be rejected in part or in whole if the action recommended would be contrary to law, would adversely affect the foreign policy or security of the United States, or would substantially impair the efficiency of the Service. If the decision rejects the Board’s recommendation in part or in whole, the decision shall state specifically any and all reasons for such action. Pending the decision, there shall be no ex parte communications concerning the grievance between the agency head, or designee, and any person involved in the grievance proceeding.
§ 16.14 Reconsideration of a grievance.
A grievant whose grievance is found not to be meritorious by the Board may obtain reconsideration by the Board only upon presenting newly discovered or previously unavailable material evidence not previously considered by the Board and then only upon approval of the Board.
§ 16.15 Judicial review.
Any aggrieved party may obtain judicial review of these regulations, and revisions thereto, and final actions of the agency head (or designee) or the Grievance Board hereunder, in the District Courts of the United States, in accordance with the standards set forth in chapter 7 of title 5 of the United States Code. Section 706 of title 5 shall apply without limitation or exception.
PART 17 – OVERPAYMENTS FROM THE FOREIGN SERVICE RETIREMENT AND DISABILITY FUND UNDER THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM (FSRDS) AND THE FOREIGN SERVICE PENSION SYSTEM (FSPS)
§ 17.1 General.
This part establishes procedures for notifying individuals of their rights if they have received an overpayment from the Foreign Service Retirement and Disability Fund under Chapter 8 of the Foreign Service Act of 1980, as amended, including their right to contest the determination that there has been an overpayment and the right to request a waiver of recovery of the overpayment. This part also provides the procedures for administrative determination of these rights and for appeals of negative determinations.
§ 17.2 Conditions for waiver of recovery of an overpayment.
(a) Foreign Service Retirement and Disability System. Recovery of an overpayment from the Foreign Service Retirement and Disability Fund under the Foreign Service Retirement and Disability System may be waived pursuant to section 4047(d), of title 22, United States Code when the individual is without fault and recovery would be against equity and good conscience or administratively infeasible.
(b) Foreign Service Pension System. Recovery of an overpayment from the Foreign Service Retirement and Disability Fund under the Foreign Service Pension System may be waived pursuant to section 4071(b) of title 22, United States Code and section 8470(b) of title 5, United States Code when the individual is without fault and recovery would be against equity and good conscience.
(c) When it has been determined that the recipient of an overpayment is ineligible for waiver, the individual is nevertheless entitled to an adjustment in the recovery schedule if he or she shows that it would cause him or her financial hardship to make payment at the rate scheduled.
§ 17.3 Fault.
A recipient of an overpayment is without fault if he or she performed no act of commission or omission that resulted in the overpayment. The fact that the Department of State or other agency may have been at fault in initiating an overpayment will not necessarily relieve the individual from liability.
(a) Considerations. Pertinent considerations in finding fault are –
(1) Whether payment resulted from the individual’s incorrect but not necessarily fraudulent statement, which he/she should have known to be incorrect;
(2) Whether payment resulted from the individual’s failure to disclose material facts in his/her possession which he/she should have known to be material; or
(3) Whether he/she accepted a payment which he/she knew or should have known to be erroneous.
(b) Mitigation factors. The individual’s age, physical and mental condition or the nature of the information supplied to him or her by the Department of State or a Federal agency may mitigate against finding fault if one or more contributed to his or her submission of an incorrect statement, a statement which did not disclose material facts in his or her possession, or his or her acceptance of an erroneous overpayment.
§ 17.4 Equity and good conscience.
(a) Defined. Recovery is against equity and good conscience when –
(1) It would cause financial hardship to the person from whom it is sought;
(2) The recipient of the overpayment can show (regardless of his or her financial circumstances) that due to the notice that such payment would be made or because of the incorrect payment either he/she has relinquished a valuable right or changed positions for the worse; or
(3) Recovery could be unconscionable under the circumstances.
(b) [Reserved]
§ 17.5 Financial hardship.
(a) Waiver of overpayment will not be allowed in any case prior to receipt and evaluation of a completed Statement of Financial Status, duly sworn by the recipient of the overpayment.
(b) Financial hardship may be deemed to exist in, but not limited to, those situations where the recipient from whom collection is sought needs substantially all of his or her current income and liquid assets to meet current ordinary and necessary living expenses and liabilities.
(1) Considerations. Some pertinent considerations in determining whether recovery would cause financial hardship are as follows:
(i) The individual’s financial ability to pay at the time collection is scheduled to be made.
(ii) Income to other family member(s), if such member’s ordinary and necessary living expenses are included in expenses reported by the individual.
(c) Exemptions. Assets exempt from execution under State law should not be considered in determining an individual’s ability to repay the indebtedness, rather primary emphasis shall be placed upon the individual’s liquid assets and current income in making such determinations.
§ 17.6 Ordinary and necessary living expenses.
An individual’s ordinary and necessary living expenses include rent, mortgage payments, utilities, maintenance, food, clothing, insurance (life, health and accident), taxes, installment payments, medical expenses, support expenses when the individual is legally responsible, and other miscellaneous expenses which the individual can establish as being ordinary and necessary.
§ 17.7 Waiver precluded.
(a) Waiver of an overpayment cannot be granted when:
(1) The overpayment was obtained by fraud; or
(2) The overpayment was made to an estate.
(b) [Reserved]
§ 17.8 Burdens of proof.
(a) Burden of the Department of State. The Bureau of Resource Management, Department of State, must establish by the preponderance of the evidence that an overpayment occurred.
(b) Burden of individual. The recipient of an overpayment must establish by substantial evidence that he or she is eligible for waiver or an adjustment in the recovery schedule.
§ 17.9 Procedures.
(a) Notice. The Bureau of Resource Management, Department of State, shall give written notification to any individual who has received an overpayment promptly by first-class mail to the individual at the individual’s most current address in the records of the Bureau of Resource Management. The written notice shall inform the individual of:
(1) The amount of the overpayment;
(2) The cause of the overpayment;
(3) The intention of the Department to seek repayment of the overpayment,
(4) The date by which payment should be made to avoid the imposition of interest, penalties, and administrative costs;
(5) The applicable standards for the imposing of interest, penalties, and administrative costs;
(6) The department’s willingness to discuss alternative payment arrangements and how the individual may offer to enter into a written agreement to repay the amount of the overpayment under terms acceptable to the Department; and
(7) The name, address and telephone number of a contact person within the Bureau of Resource Management. The written notice also shall inform the individual of their right to contest the overpayment, their right to request a waiver of recovery of the overpayment, and the procedures to follow in case of such contest or request for waiver of recovery. The notification shall allow at least 30 days from its date within which the individual may contest in writing the overpayment or request a waiver of recovery, including with their submission all evidence and arguments in support of their position.
(b) Administrative file. The Bureau of Resource Management will prepare an administrative file as a basis for determination in each case where an individual contests a claim to recover overpayment or requests waiver of recovery of the overpayment. On the basis of the administrative file, the Chief Financial Officer or his or her delegate, shall make the final administrative determination.
(c) Additional information. At any time before the final administrative decision, the Department may request the individual to supplement his or her submission with additional factual information and may request that the individual authorize the Department of State to have access to bank and other financial records bearing on the application of these regulations. If the individual, without good cause shown, fails or refuses to produce the requested additional information or authorization, the Department of State is entitled to make adverse inferences with respect to the matters sought to be amplified, clarified, or verified.
(d) Decision and right of appeal. The final administrative decision shall be reduced to writing and sent to the individual. If the decision is adverse to the individual, the notification of the decision shall include a written description of the individual’s rights of appeal to the Foreign Service Grievance Board. The Foreign Service Grievance Board shall consider any appeal under this part in accordance with the regulations of the Board set forth in 22 CFR part 901.
PART 18 – REGULATIONS CONCERNING POST EMPLOYMENT CONFLICT OF INTEREST
Subpart A – General Provisions
§ 18.1 Scope.
This part contains rules governing disciplinary action against a former officer or employee of the Department of State, including the Foreign Service, because of a violation of the post employment conflict of interest prohibitions. Such disciplinary action may include prohibition from practice before the Department of State and any component thereof as defined in this part.
§ 18.2 Definitions.
For the purpose of this part –
(a) The term Department means the Department of State and includes the Foreign Service.
(b) The term Director General means the Director General of the Foreign Service and Director of Personnel.
(c) The term practice means any informal or formal appearance before, or, with the intent to influence, any oral or written communication to the Department on a pending matter of business on behalf of any other person (except the United States).
§ 18.3 Director General.
The Director General shall institute and provide for the conduct of disciplinary proceedings involving former employees of the Department as authorized by 18 U.S.C. 207(j), and perform such other duties as are necessary or appropriate to carry out his/her functions under this part.
§ 18.4 Records.
The roster of all persons prohibited from practice before the Department shall be available to public inspection at the Office of Director General. Other records may be disclosed upon specific request, in accordance with appropriate disclosure regulations of the Department.
Subpart B – Applicable Rules
§ 18.5 Interpretative standards; advisory opinions.
(a) A determination that a former officer or employee of the Department violated 18 U.S.C. 207(a), (b) or (c) will be made in conformance with the standards established in the interpretative regulations promulgated, either in interim or final form by the Office of Government Ethics and published at 5 CFR part 737.
(b) Former officers and employees of the Department wanting to know whether a proposed course of conduct would be in conformity with the Act or the interpretive regulations thereunder may contact the Assistant Legal Adviser for Management to request an advisory opinion.
Subpart C – Administrative Enforcement Proceedings
§ 18.6 Authority to prohibit appearances.
Pursuant to 18 U.S.C 207(j), if the Director General finds, after notice and opportunity for a hearing, that a former officer or employee of the Department has violated 18 U.S.C. 207(a), (b) or (c), the Director General in his/her discretion may prohibit that person from engaging in practice before the Department for a period not to exceed five years, or may take other appropriate disciplinary action.
§ 18.7 Report of violation by a former employee.
(a) If an officer or employee of the Department has reason to believe that a former officer or employee of the Department has violated any provision of this part, or if any such officer or employee receives information to that effect, he/she shall promptly make a written report thereof, which report or a copy thereof shall be forwarded to the Director General. If any other person has information of such violations, he/she may make a report thereof to the Director General or to any officer or employee of the Department.
(b) The Director General shall coordinate proceedings under this part with the Department of Justice in cases where it initiates criminal prosecution.
§ 18.8 Institution of proceeding.
Whenever the Director General determines that there is sufficient reason to believe that any former officer or employee of the Department has violated 18 U.S.C. 207(a), (b) or (c), he/she may institute an administrative disciplinary proceeding. The proceeding may be for that person’s suspension from practice before the Department or for some lesser penalty. The proceeding shall be instituted by a complaint which names the respondent and is signed by the Director General and filed in his/her office. Except in cases of willfulness, or where time, the nature of the proceeding, or the public interest does not permit, a proceeding will not be instituted under this section until facts or conduct which may warrant such action have been called to the attention of the proposed respondent in writing and he/she has been accorded the opportunity to provide his/her position on the matter.
§ 18.9 Contents of complaint.
A complaint shall plainly and concisely describe the allegations which constitute the basis for the proceeding. A complaint shall be deemed sufficient if it fairly informs the respondent of the charges against him/her so that the respondent is able to prepare a defense. Written notification shall be given of the place and of the time within which the respondent shall file his/her answer, which time shall not be less than 15 days from the date of service of the complaint. Notice shall be given that a decision by default may be rendered against the respondent in the event he/she fails to file an answer.
§ 18.10 Service of complaint and other papers.
(a) Complaint. The complaint or a copy thereof may be served upon the respondent by certified mail; by delivering it to the respondent or his/her attorney or agent of record either in person; or by leaving it at the office or place of business of the respondent, attorney or agent; in any other manner which has been agreed to by the respondent; or by first-class mail in case of a person resident abroad.
(b) Service of papers other than complaint. Any paper other than the complaint may be served upon a respondent as provided in paragraph (a) of this section or by mailing the paper by first-class mail to the respondent at the last address known to the Director General, or by mailing the paper by first-class mail to the respondent’s attorney or agent of record. Such mailing shall constitute complete service.
(c) Whenever the filing of a paper is required or permitted in connection with a proceeding, and the place of filing is not specified by this subpart or by rule or order of the hearing examiner, the paper shall be filed with the Director General, Department of State, Washington, DC 20520. All papers shall be filed in duplicate.
§ 18.11 Answer.
(a) Filing. The respondent’s answer shall be filed in writing within the time specified in the complaint or notice of institution of the proceeding, unless on application the time is extended by the Director General. The answer shall be filed in duplicate with the Director General.
(b) Contents. The answer shall contain a statement of facts which constitute the grounds of defense, and it shall specifically admit or deny each allegation set forth in the complaint. The respondent may also state affirmatively special matters of defense.
(c) Failure to deny or answer allegations in the complaint. Every allegation in the complaint which is not denied in the answer shall be deemed to be admitted and may be considered as proved. Failure to file an answer within the time prescribed in the notice to the respondent, except as the time for answer is extended by the Director General shall constitute a waiver of hearing, and the Director General may make his/her decision by default without a hearing or further procedure.
§ 18.12 Motions and requests.
Motions and requests, including requests to intervene, may be filed with the Director General.
§ 18.13 Representation.
A respondent or proposed respondent may appear in person or he/she may be represented by counsel or other representative. The Director General may be represented by an attorney or other employee of the Department.
§ 18.14 Hearing examiner.
(a) After an answer is filed, if the Director General decides to continue the administrative disciplinary proceedings, he/she shall appoint a hearing examiner to conduct those proceedings under this part.
(b) Authorities. Among other powers, the hearing examiner shall have authority, in connection with any proceeding assigned or referred to him/her, to do the following:
(1) Take evidence under appropriate formalities;
(2) Make rulings upon motions and requests;
(3) Determine the time and place of hearing and regulate its course and conduct;
(4) Adopt rules of procedure and modify the same from time to time as occasion requires for the orderly disposition of proceedings;
(5) Rule upon offers of proof, receive relevant evidence, and examine witnesses;
(6) Take or authorize the taking of depositions;
(7) Receive and consider oral or written argument on facts or law;
(8) Hold or provide for the holding of conferences for the settlement or simplification of the issues by consent of the parties;
(9) Perform such acts and take such measures as are necessary or appropriate to the efficient conduct of any proceeding; and
(10) Make initial decisions.
§ 18.15 Hearings.
Hearings shall be stenographically recorded and transcribed and the testimony of witnesses shall be taken under oath or affirmation. Hearings will be closed unless an open hearing is requested by the respondent, except that if classified information or protected information of third parties is likely to be adduced at the hearing, it will remain closed. If either party to the proceeding fails to appear at the hearing, after due notice thereof has been sent to him/her, he/she shall be deemed to have waived the right to a hearing and the hearing examiner may make a decision against the absent party by default.
§ 18.16 Evidence.
The rules of evidence prevailing in courts of law and equity are not controlling in hearings under this part. However, the hearing examiner shall exclude evidence which is irrelevant, immaterial, or unduly repetitious.
§ 18.17 Depositions.
Depositions for use at a hearing may, with the consent of the parties in writing or the written approval of the hearing examiner, be taken by either the Director General or the respondent or their duly authorized representatives. Depositions may be taken upon oral or written interrogatories. There shall be at least 10 days written notice to the other party. The requirement of a 10-day written notice may be waived by the parties in writing. When a deposition is taken upon written interrogatories, any cross-examination shall be upon written interrogatories. Copies of such written interrogatories shall be served upon the other party with the notice, and copies of any written cross-interrogation shall be mailed or delivered to the opposing party at least 5 days before the date of taking the depositions, unless the parties mutually agree otherwise. Expenses in the reporting of depositions shall be borne by the party at whose instance the deposition is taken.
§ 18.18 Proposed findings and conclusions.
Except in cases where the respondent has failed to answer the complaint or where a party has failed to appear at the hearing, the hearing examiner, prior to making his/her decision, shall afford the parties a reasonable opportunity to submit proposed findings and conclusions and supporting reasons therefor.
§ 18.19 Decision of the hearing examiner.
As soon as practicable after the conclusion of a hearing and the receipt of any proposed findings and conclusions timely submitted by the parties, the hearing examiner shall make the initial decision. The decision shall include
(a) A statement of findings and conclusions, as well as the reasons or basis therefor, upon all the material issues of fact, law, or discretion presented on the record, and
(b) An order of suspension from practice before the Department or other appropriate disciplinary action, or an order of dismissal of the complaint. The hearing examiner shall file the decision with the Director General and shall transmit a copy thereof to the respondent or his/her attorney of record. A party adversely affected by the decision shall be given notice of his or her right to appeal to the Board of Appellate Review (part 7 of this chapter) within 30 days from the date of the hearing examiner’s decision.
§ 18.20 Appeal to the Board of Appellate Review.
Within 30 days from the date of the hearing examiner’s decision, either party may appeal to the Board of Appellate Review. The appeal shall be taken by filing notice of appeal, in triplicate, with the Board of Appellate Review, which shall state with particularity exceptions to the decision of the hearing examiner and reasons for such exceptions. If an appeal is by the Director General, he/she shall transmit a copy thereof to the respondent. Within 30 days after receipt of an appeal or copy thereof, the other party may file a reply brief, in triplicate, with the Board of Appellate Review. If the reply brief is filed by the Director General, he/she shall transmit a copy of it to the respondent. The Director General shall transmit the entire case record to the Board of Appellate Review within 30 days after an appeal has been taken.
§ 18.21 Decision of the Board of Appellate Review.
The Board of Appellate Review shall decide the appeal on the basis of the record. The decision of the Board shall be final, and not subject to further administrative review. Copies of the Board’s decision shall be forwarded promptly to the parties by the Board.
§ 18.22 Notice of disciplinary action.
Upon the issuance of a final order suspending a former officer or employee from practice before the Department, the Director General shall give notice thereof to appropriate officers and employees of the Department. Officers and employees of the Department shall refuse to participate in any appearance by such former officer or employee or to accept any communication which constitutes the prohibited practice before the Department during the period of suspension. The Director General shall take other appropriate disciplinary action as may be required by the final order.
PART 19 – BENEFITS FOR SPOUSES AND FORMER SPOUSES OF PARTICIPANTS IN THE FOREIGN SERVICE RETIREMENT AND DISABILITY SYSTEM
§ 19.1 Authorities.
Chapter 8 of the Foreign Service Act of 1980 (Pub. L. 96-465, 94 Stat. 2102) (hereafter “the Act”), and any Executive order issued under authority of section 827 of the Act.
§ 19.2 Definitions.
(a) Agencies means the Department, the Agency for International Development (AID), the International Communication Agency (USICA), the Foreign Agricultural Service (FAS), and the Foreign Commercial Service (FCS).
(b) Annuitant means any person including a former participant or survivor who meets all requirements for an annuity from the Fund under the provisions of the Foreign Service Act of 1980, or any other law and who has filed claim therefor.
(c) Basic salary means the salary fixed by law or administrative action before deductions and exclusive of additional compensation of any kind. It includes the salary fixed by sections 401, 402, 403, and 406 of the Act and salary incident to assignment under section 503 of the Act. Basic salary excludes premium pay for overtime, night, Sunday and holiday work, allowances, post and special differentials, and chargé pay.
(d) Chief of Mission means a principal officer in charge of a diplomatic mission of the United States or of a United States Office abroad which has been designated diplomatic in nature or any member of the Foreign Service assigned under the terms of the Act to be chargé d’affaires or head of such a mission or office.
(e) Child means, except with reference to lump-sum payments, an unmarried child, under the age of 18 years, or such unmarried child regardless of age who because of physical or mental disability incurred before age 18 is incapable of self-support. In addition to the offspring of the participant, the term includes:
(1) An adopted child;
(2) A stepchild or recognized natural child who received more than one-half support from the participant; and
(3) A child who lived with and for whom a petition of adoption was filed by a participant, and who is adopted by the surviving spouse of the participant after the latter’s death. “Child” also means an unmarried student under the age of 22 years. For this purpose, a child whose twenty-second birthday occurs before July 1 or after August 31 of a calendar year, and while a student, is deemed to have become 22 years of age on the first day of July after the birthday.
(f) Court means any court of any State or of the District of Columbia.
(g) Court Order means any court decree of divorce or annulment, or any court approved property settlement agreement incident to any court decree of divorce or annulment.
(h) Department means the Department of State.
(i) Divorce means the dissolution of a marriage by a final decree of divorce or annulment.
(j) Expressly provided for means a direction by a court order to divide a member’s Foreign Service Retirement benefits or survivor benefits and awarding a portion of such benefits to an eligible beneficiary.
(k) Former spouse
(l) Fund means the Foreign Service Retirement and Disability Fund.
(m) M/MED means the Department’s Office of Medical Services.
(n) Military and naval service means honorable active service:
(1) In the Armed Forces of the United States;
(2) In the Regular or Reserve Corps of the Public Health Service after June 30, 1960; or
(3) As commissioned officer of the National Oceanic and Atmospheric Administration or predecessor organization after June 30, 1961.
(o) Participant means a person as described in § 19.3.
(p) Previous spouse means any person formerly married to a principal, whether or not such person qualifies as a former spouse under paragraph (k) of this section.
(q) Principal means a participant or former participant whose service forms the basis for a benefit under chapter 8 of the Act for a spouse, previous spouse, former spouse or child of a participant.
(r) PER/ER/RET means the Department’s Retirement Division in the Bureau of Personnel.
(s) Pro rata share means, in the case of any former spouse of any participant or former participant, a percentage which is equal to the percentage that (1) the number of years and months during which the former spouse was married to the participant during the creditable service of that participant is of (2) the total number of years and months of such creditable service. When making this calculation, item (1) is adjusted in accordance with paragraph (k) of this section and item (2) is adjusted in accordance with § 19.4. In the total period, 30 days constitutes a month and any period of less than 30 days is not counted.
(t) Spousal agreement means any written agreement between a participant or former participant, and the participant’s spouse or former spouse.
(u) Student means a child regularly pursuing a full-time course of study or training in residence in a high school, trade school, technical or vocational institute, junior college, university, or comparable recognized educational institution. A child who is a student shall not be deemed to have ceased to be a student during any interim between school years, semesters, or terms if the interim or other period of nonattendance does not exceed 5 calendar months and if the child shows to the satisfaction of the Retirement Division (PER/ER/RET) that the child has a bona fide intention of continuing to pursue such course during the school year, semester, or term immediately following the interim.
(v) Surviving spouse means the surviving wife or husband of a participant or annuitant who, in the case of death in service or marriage after retirement, was married to the participant or annuitant for at least one year immediately preceding death or is the parent of a child born of the marriage.
(w) System means the Foreign Service Retirement and Disability System.
§ 19.3 Participants.
The following persons are participants in the System:
(a) Members of the Service serving under a career appointment or as a career candidate under section 306 of the Act (1) in the Senior Foreign Service, or (2) assigned to a salary class in the Foreign Service Schedule;
(b) Any person not otherwise entitled to be a participant who has served as chief of mission or an ambassador at large for an aggregate period of 20 years or more, exclusive of extra service credit for service at unhealthful posts, and who has paid into the Fund a special contribution for each year of service;
(c) Any individual who was appointed as a Binational Center Grantee and who completed, prior to February 15, 1981, at least 5 years of satisfactory service as a grantee, as determined by the Director of Personnel of USICA, or under any other appointment under the Foreign Service Act of 1946, as amended, who has paid into the Fund a special contribution for such service.
(d) Any person converted to the competitive service pursuant to section 2104 of the Act who elects to participate in the System pursuant to section 2106(b)(1) or (2) shall remain a participant so long as he/she is employed in an agency which is authorized to utilize the Foreign Service personnel system.
§ 19.4 Special rules for computing creditable service for purposes of payments to former spouses.
For purposes of determining the pro rata share of annuity, survivor annuity or lump-sum payable to a former spouse, the following shall be considered creditable service –
(a) The entire period of a principal’s approved leave without pay during full-time service with an organization composed primarily of Government employees irrespective of whether the principal elects to make payments to the Fund for this service;
(b) The entire period of Government service for which a principal received a refund of retirement contributions which he/she has not repaid unless the former spouse received under § 19.13 a portion of the (lump-sum) refund or unless a spousal agreement or court order provided that no portion of the refund be paid to the former spouse; and
(c) All creditable service including service in excess of 35 years.
§ 19.5 Required notifications to Department respecting spouses and former spouses.
§ 19.5-1 Notification from participant or annuitant.
If a participant or former participant becomes divorced on or after February 15, 1981, he/she shall notify the Department (PER/ER/RET) of the divorce on or prior to its effective date. The notice shall include the effective date of the divorce, the full name, mailing address, and date of birth of the former spouse and the date of the member’s marriage to that person, and enclose a certified copy of the divorce decree. If there is a court order or spousal agreement concerning payment or nonpayment of Foreign Service benefits to the former spouse, the original or a certified copy of the order or agreement shall also be forwarded to PER/ER/RET. In the absence of a court order or spousal agreement providing otherwise, the Department will pay a pro rata share of the member’s benefits to the former spouse. (A former spouse of a former participant who separated from the Service on or before February 15, 1981 is not eligible for a pension under § 19.9, i.e., not eligible for a pro rata share of the principal’s annuity.) Upon receipt of notice of a divorce, a court order, or spousal agreement, the Department will proceed as indicated in § 19.6 or § 19.7. Delinquent notice to the Department of the divorce of an annuitant will result in retroactive payments to any qualified former spouse to the extent that the retroactive payments can be deducted from future annuity payments to the principal as stated in § 19.6-4.
§ 19.5-2 Notification to Department from former spouses.
A former spouse is obligated to notify the Department of the following on a timely basis:
(a) A divorce from a participant or former participant when the former spouse is notified by the court of the divorce before the participant is notified;
(b) Any change in address; and
(c) Any remarriage.
§ 19.5-3 Residence of spouse during service at unhealthful post.
(a) The calculation of the pro rata share of benefits for a former spouse, and the determination of whether a person qualifies as a “former spouse” depends on the length of the marriage. The latter, under the definition in the Act and when the principal has received extra service credit for an assignment to an unhealthful post, depends upon whether a spouse has resided with the principal at the unhealthful post. In order to determine residency for this purpose, whenever a married participant is assigned to an unhealthful post for which he/she does not receive post differential and does receive or request extra service credit, the participant shall report on Form OF-140, Election to Receive Extra Service Credit Towards Retirement, whether his/her spouse is or is not residing at the post. Although a chief of mission is not required to submit Form OF-140 in order to receive extra credit for service at an unhealthful post, he/she must nevertheless submit this form if the chief of mission has a spouse that does not accompany him/her at post for the entire assignment. Both the participant and spouse shall sign the completed form. If there is a change in residence of the spouse during the assignment, a new joint Form OF-140 shall be filed to report the change.
(b) Whenever a participant retires or becomes divorced, or whenever a former participant becomes divorced who has extra service credit for assignment at unhealthful posts completed prior to the issuance of this regulation who was married during at least a portion of the assignment, the participant or former participant shall submit a statement to PER/ER/RET reporting on whether his/her spouse resided at the unhealthful post and the dates of such residence. The statement shall be signed by the principal and his/her spouse or former spouse whenever possible.
(c) In the event of a disagreement between a principal and his/her spouse or former spouse concerning residency at an unhealthful post, or the submission of a report or statement by a principal showing a period of nonresidence at a post by a spouse which is not signed by the spouse, the determination of residence will be made by PER/ER/RET and based on records in the Department of payments for travel and allowances plus any other evidence that can be adduced. In the absence of any evidence to the contrary, the assumption will be made that the spouse resided at the post.
§ 19.6 Court orders and divorce decrees.
§ 19.6-1 Orders by a court.
(a) A court may –
(1) Fix the amount of any pension to a former spouse under § 19.9, or order that none be paid;
(2) Fix the amount of any regular survivor annuity to a former spouse under paragraphs (a) and (b) of § 19.11, or order that none be paid;
(3) Order provision of an additional survivor annuity for a spouse or former spouse under § 19.10-5;
(4) Fix the amount of any benefit under § 19.10-6 based on recall service payable to a former spouse to whom the annuitant was married during any portion of the recall service, or order that none be paid;
(5) Fix the amount of any lump-sum payable to a former spouse under § 19.13 or order that none be paid;
(6) Order, to the extent consistent with any obligation stated in § 19.8 between a participant and a former spouse, and pursuant to any court decree of divorce, legal separation or annulment or any court ordered or approved property settlement agreement incident to any court decree of divorce, legal separation, or annulment, that any payment from the Fund which would otherwise be made to a former participant based on his/her service shall be paid (in whole or in part) by the Secretary of State to a previous spouse or child of such participant. No apportionment under this paragraph may be made of a payment authorized to be paid to a survivor of a participant or annuitant.
(b) An order by a court that does not meet the definition of “court” in § 19.2(f) is not valid for purposes of this section even though a divorce decree issued by such court may be a basis for pro rata share payments to a former spouse as described in these regulations.
§ 19.6-2 Qualifying court order.
(a) To be valid for purposes of this section, a court order must be found to be “qualified” by PER/ER/RET acting for the Secretary of State. A qualifying court order must –
(1) Be consistent with the terms of the Act and applicable regulations;
(2) Not direct payment of an amount in excess of the maximum amount authorized to be paid by the relevant regulation;
(3) Direct that payments be made to an eligible beneficiary from a principal’s Foreign Service retirement benefit or survivor benefit. If a court directs or implies that a principal, rather than the Secretary of State or the Government, make the payments, the order will not be considered qualified unless the principal does not object during the 30-day notice period provided under § 19.6-6;
(4) Define the amount to be paid to a beneficiary in way so that it can be readily calculated from information in the normal files of the Department;
(5) Not make payment contingent upon events other than those on which other payments from the Fund are based such as age, marital status and school attendance; and
(6) Not be in conflict with any previously issued court order which remains valid.
(b) No apportionment of annuity to a beneficiary under § 19.6-1(a) (1) or (6) shall exceed the net annuity of the principal. The net annuity is computed by excluding from the gross annuity the amounts which are:
(1) Owed by the individual to the United States;
(2) Deducted for health benefits premiums pursuant to section 8906 of Title 5, United States Code;
(3) Deducted for life insurance premiums under the Government Life Insurance Program;
(4) Owed due to overpayment of annuity;
(5) Properly withheld for Federal income tax purposes, if amounts withheld are not greater than they would be if the individual claimed all dependents to which he/she was entitled.
§ 19.6-3 Application for payment.
(a) To receive payment from the Fund pursuant to a court award, the beneficiary must submit an application in writing to the Chief of the Retirement Division (PER/ER/RET), Department of State, Washington, DC 20520. The application must be typed or printed, signed by the beneficiary, and include –
(1) The full name, date of birth, current address and current marital status of the beneficiary;
(2) Full name and date of birth of the participant or former participant and his/her date of birth or other identifying information;
(3) Relationship to the beneficiary, and if a spouse or former spouse, date of marriage to and/or divorce from the participant;
(4) A statement that the court order has not been amended, superseded, or set aside;
(b) When payments are subject to termination upon the occurrence of a condition subsequent, such as marriage, remarriage or termination of schooling, or death of the principal, no payment will be made until the beneficiary submits a statement to PER/ER/RET that –
(1) The condition has not occured;
(2) He/she will notify the Department (PER/ER/RET) within 15 calendar days of the occurrence of the condition subsequent; and
(3) He/she will be personally liable for any overpayment to him/her resulting from the occurrence of the condition subsequent. PER/ER/RET may require periodic recertification of these statements.
§ 19.6-4 Date of court orders.
(a) A court order directing or barring payment of a pension to a former spouse under § 19.9 may not be given effect by the Department if it is issued more than 12 months after the divorce becomes final. A court order adjusting the amount of a regular or additional survivor annuity to a former spouse under § 19.11-2 or § 19.10-5 may not be given effect by the Department if it is issued after the death of the principal.
(b) A court order issued within 12 months after a divorce becomes final directing payment of a pension to a former spouse in an amount other than provided in § 19.9 may be made retroactively effective to the first of the month in which the divorce becomes final if so specified by the court. In such event, the Department will adjust any future payments that may become due to an annuitant and a former spouse by increasing one and correspondingly reducing the other in order to give effect to the order of the court. However, if future payments to one party are not due, as for example if a court orders that no payments be made to a former spouse, or that 100 percent of an annuity be paid as pension to a former spouse, the Department will not give retroactive effect to a court order by collecting overpayments from one party in order to pay them to the other party and will not make overpayments from the Fund.
(c) A court order under this chapter involving any payment other than a pension to a former spouse under § 19.9 may not be given retroactive effect and shall not be effective until it is determined to be a qualifying order under § 19.6-5.
§ 19.6-5 Preliminary review.
(a) Upon receipt of an application for payment under § 19.6-3, PER/ER/RET will determine whether –
(1) The application is complete;
(2) The applicant is an eligible beneficiary under this chapter; and
(3) The court order is a qualifying order. If the application is completed, the beneficiary is eligible and the court order appears on its face to be a qualifying order, PER/ER/RET will provide the notification required by § 19.6-6, otherwise, it will notify the applicant of any deficiency or requirement for additional information, and if the order is determined to be non-qualifying, the basis for such determination.
(b) Upon receipt of a certified copy of a final decree of divorce, PER/ER/RET will determine whether –
(1) It is a valid decree. Any decree recognized as valid by the parties will be considered valid for this purpose. In addition, any non-recognized decree will be considered valid for this purpose unless:
(i)(A) Neither party was domiciled within the court’s jurisdiction, and
(B) The party denying recognition did not participate in the proceedings, or
(ii) The party denying recognition was not afforded notice of the proceedings (actual or constructive);
(2) A related court order has been submitted by either party; and
(3) A pro rata share payment is or may become due the former spouse. If a divorce decree is deemed valid under this paragraph, a pro rata share payment is due a former spouse unless PER/ER/RET is in receipt of a court order which it has deemed qualified under paragraph (a) of this section, or a valid spousal agrement providing otherwise. If it determines that a pro rata share payment is due, it will provide the notification required by § 19.6-6, otherwise, unless action is being taken pursuant to a related court order, it will notify both parties to the divorce the reason a pro rata share payment is not payable.
§ 19.6-6 Notification.
(a) Notification to a principal. Whenever PER/ER/RET receives from a former spouse or other eligible beneficiary –
(1) a court order which it deems qualified that requires payment to the beneficiary; or
(2) A final decree of divorce which it deems valid together with a request for a pro rata share payment – PER/ER/RET will send a copy of the document to the principal and a notice stating: (i) That PER/ER/RET deems the order qualified or the divorce decree valid, (ii) that payments will be made from the principal’s account to the beneficiary and the effective date of such payments, (iii) the effect of such payments on the principal’s retirement benefit. In the case of any court order with retroactive or immediate effect, and in the case of pro rata share payments, the amounts will be withheld from future payments to the principal but will not be paid to the beneficiary for 30 days from the notice date in order to give the principal an opportunity to contest the court order or the validity of the divorce.
(b) Notification to a former spouse. When PER/ER/RET receives from a principal – (1) a court order which it deems qualified that requires or forbids payment to a former spouse; or (2) a final decree of divorce which it deems valid without an accompanying court order – PER/ER/RET will send a copy of the document to the former spouse and a notice stating: (i) That PER/ER/RET deems the court order qualified or the divorce decree valid, (ii) that PER/ER/RET intends to honor the court decree or to make pro rata share payments because of the divorce, (iii) the effective date, exact amount, and method of calculation of any payments to the former spouse.
§ 19.6-7 Decision.
(a) When a response has not been received by PER/ER/RET from a principal within the 30-day period under § 19.6-6a, payment will be made in accordance with the notification. When a response is received, the Chief, PER/ER/RET will consider the response. If it is shown that a court order is not qualifying or that a divorce is not valid under terms of the Act and these regulations, payment proposed in the notification will not be made. In such a case, PER/ER/RET will advise both parties of the basis for its decision and the alternative action, if any, that it proposes to take.
(b) If a principal responding to a notification under § 19.6-6a objects to the payment or other action proposed by the Department in the notification based on the validity of the court order or divorce decree, and the record contains support for the objection, PER/ER/RET will grant the principal 30 days to initiate formal legal action to determine the validity of the objection, will continue to delay payment to the former spouse or other beneficiary during this period, and will notify the beneficiary of this action. If evidence is submitted that formal legal action has been started within the 30-day period, the amount of any proposed payment to a former spouse or other beneficiary will continue to be withheld from any payments due the principal, but no payment will be made to the former spouse or other beneficiary until a judicial decision is rendered or agreement reached between the parties.
§ 19.6-8 Allotment to beneficiary.
If a court order is not a qualifying court order because it directs or implies that payment to the beneficiary is to be made by the principal rather than the Secretary of State, the principal may make an allotment to the beneficiary from his/her annuity. An annuitant may also make an allotment from his/her annuity to a previous spouse in the absence of a court order.
§ 19.6-9 Limitations.
(a) Retirement benefits are subject to apportionment by court order under § 19.6-1(a)(6) only while the principal is living. Payment of apportioned amounts will be made only to a previous spouse and/or the children of the principal. Such payments will not be made to any of the following:
(1) Heirs or legatees of the previous spouse;
(2) Creditors of either the principal or the previous spouse; or
(3) Assignees of either the principal or the previous spouse.
(b) The amount of any court ordered payment may not be less than one dollar and, in the absence of compelling circumstances, shall be in whole dollars.
(c) In honoring and complying with a court order, the Department shall not be required to disrupt the scheduled method of accruing retirement benefits or the normal timing for making such payments, despite the existence of any special schedule relating to a previous spouse or other beneficiary.
(d) In cases where the court order apportions a percentage of the retirement benefits, PER/ER/RET will initially determine the amount of proper payment. That amount will only be increased by future cost-of-living increases unless the court directs otherwise.
§ 19.6-10 Liability.
(a) The Department shall not be liable for any payment made from retirement benefits pursuant to a court order if such payment is made in accordance with the provisions of this chapter.
(b) In the event that the Secretary is served with more than one court order with respect to the same retirement benefits, the benefits shall be available to satisfy the court orders on a first-come, first-served basis.
(c) A previous spouse or other beneficiary may request that an amount be withheld from the retirement benefits of a principal or survivor of a principal which is less than the amount stipulated in a court order, or otherwise scheduled to be paid to the beneficiary under this chapter. This lower amount will be deemed a complete fulfillment of the obligation of the Department for the period in which the request is in effect. See § 19.14.
§ 19.7 Spousal agreements.
§ 19.7-1 Purpose.
A spousal agreement may be used by both parties to establish an agreed-upon level of benefits to a spouse or a former spouse and to relieve the participant of responsibility for providing a higher level of benefits.
§ 19.7-2 Agreement with spouse.
(a) A spousal agreement between a participant and a spouse may waive or fix the level of a regular survivor annuity under § 19.11-3. If an agreement is filed, it will assure the spouse that the agreed-upon level of survivor annuity will be paid, irrespective of a future divorce provided the survivor meets the definition of “former spouse” in § 19.2(k). If an agreement is not filed, the participant’s annuity will be reduced under § 19.10-2 to provide the maximum regular survivor annuity for the spouse, but in the event of a future divorce if the spouse meets the definition of “former spouse,” that person will be entitled only to a pro rata share of the survivor annuity. An agreement under this paragraph may be filed with PER/ER/RET at any time prior to retirement (commencement of the principal’s annuity).
(b) A spousal agreement between an annuitant and a spouse filed with PER/ER/RET before commencement of a supplemental annuity for recall service may waive a supplemental survivor annuity that would otherwise be provided for a spouse under § 19.10-6.
(c) A spousal agreement between a participant or former participant and a spouse may be filed with PER/ER/RET at any time in accordance with § 19.10-5 and provide for an additional survivor annuity for the spouse.
(d) A spousal agreement filed under paragraph (a), (b), or (c) remains valid and binding in the event of divorce if the spouse qualifies as a former spouse.
§ 19.7-3 Agreement with former spouse.
(a) A spousal agreement between a participant or former participant and a former spouse may waive, reduce or increase the following benefits for a former spouse;
(1) A pension under § 19.9;
(2) A regular survivor annuity under § 19.11-2;
(3) A supplemental survivor annuity under § 19.10-6;
(4) A lump sum payment for regular or recall service under § 19.13.
(b) A spousal agreement between a participant or former participant and a former spouse may be filed with PER/ER/RET at any time in accordance with § 19.10-5 to provide an additional survivor annuity for the former spouse.
§ 19.7-4 Form of agreement.
(a) A spousal agreement is any legal agreement between the parties accepted by PER/ER/RET as meeting the requirements of this section. If in accordance with the regulations, PER/ER/RET will accept as a valid spousal agreement a property settlement agreed to by the parties and approved by a court regardless of the date of the agreement.
(b) A spousal agreement must either be authenticated by a court or notarized.
§ 19.7-5 Limitations.
(a) A spousal agreement may not provide for any payment from the Fund in excess of the amount otherwise authorized to be paid, or at a time not authorized by these regulations, or to a person other than a spouse or former spouse.
(b) A spousal agreement must be filed with the Department, Attention PER/ER/RET, and accepted by that office as in conformance with the Act and these regulations prior to the times specified in §§ 19.7-2 and 19.7-3. That office will provide advice to the parties on the validity of any proposed agreement and on proper format.
(c) A spousal agreement may apply only to payments from the Fund for periods after receipt of a valid agreement by the Department.
(d) Paragraphs (b), (c) and (d) of §§ 19.6-9 and 19.6-10 apply to spousal agreements and payments made pursuant to spousal agreements to the same extent that they apply to court orders and court ordered payments.
§ 19.7-6 Duration and precedence of spousal agreements.
(a) A spousal agreement may be revised or voided by agreement of the parties (by filing a new agreement under this section) at any time prior to the last day for filing an agreement determined in accordance with § 19.7-2 or § 19.7-3, except spousal agreements for additional survivor annuities are irrevocable. After the last day for filing a particular agreement, such agreement is irrevocable.
(b) A valid spousal agreement entered into subsequent to the issuance of a court order affecting the same parties will override the court order, and shall govern payments from the Fund.
(c) A spousal agreement may not override a previous spousal agreement involving the same principal but a different spouse or former spouse without agreement of such spouse or former spouse.
§ 19.8 Obligations of members.
Participants and former participants are obligated by the Act and these regulations to provide the following benefits to others and must accept the necessary reductions in their own retirement benefits to meet these obligations:
(a) A pension to a former spouse pursuant to § 19.9;
(b) A court ordered apportionment of annuity to a previous spouse or child under § 19.6-1 (a)(6) (the benefit to a child referred to here is paid during the annuitant’s lifetime as distinguished from the automatic survivorship annuity to a child described in § 19.11-7);
(c) A regular survivor annuity to a former spouse who has not remarried prior to age 60, and to a spouse to whom married when annuity commences, pursuant to §§ 19.11-2 and 19.11-3;
(d) An additional survivor annuity for a spouse or former spouse under § 19.10-5 when elected by the participant or ordered by a court;
(e) Lump-sum payments to a former spouse pursuant to § 19.13;
(f) Benefits ordered by a court under § 19.6 or specified in a spousal agreement under § 19.7.
§ 19.9 Pension benefits for former spouses.
§ 19.9-1 Entitlement.
(a) Unless otherwise expressly provided by a spousal agreement under § 19.7 or a court order under § 19.6, a person who, after February 15, 1981, becomes a former spouse of a participant (or former participant who separated from the Service after February 15, 1981) and who has not remarried prior to becoming 60 years of age, becomes entitled to a monthly pension benefit effective on a date determined under § 19.9-2 in an amount determined under § 19.9-3.
(b) A former spouse shall not be qualified for a pension under this subsection if, before the commencement of that pension, the former spouse remarries before becoming 60 years of age.
(c) A pension benefit under this section is treated the same as a survivor annuity for purposes of § 19.11-5(b): a former spouse who elects to receive a pension under this section must waive simultaneous receipt of any survivor annuity.
§ 19.9-2 Commencement and termination.
(a) The pension of a former spouse under this subsection commences on the latter of the day the principal becomes entitled to a Foreign Service annuity or on the first day of the month in which the divorce becomes final. (Suspension or reduction of a Foreign Service annuity because or reemployment does not affect the commencement of a pension to a former spouse.) In the case of any former spouse of a disability annuitant, the pension of such former spouse shall commence on the latter of:
(1) The date the principal would qualify for an annuity (other than a disability annuity) on the basis of his/her creditable service;
(2) The date the disability annuity begins; or
(3) The first of the month in which the divorce becomes final.
(b) The pension of a former spouse and the right thereto terminate on:
(1) The last day of the month before the former spouse dies or remarries before 60 years of age; or
(2) The date the annuity of the former participant terminates unless the termination results from recall, reappointment or reinstatement in the Foreign Service or reemployment in Government service.
§ 19.9-3 Computation and payment of pension to former spouse.
(a) A pension to a former spouse is paid monthly on the same date that annuity is paid to the principal.
(b) No spousal agreement or court order may provide for a pension or any combination of pensions to former spouses of any one principal which exceeds the net annuity of the principal as defined in § 19.6-2(b).
(c) A pension to a former spouse not fixed by a spousal agreement or court order shall equal the former spouse’s pro rata share of 50 percent of the annuity to which the principal is entitled on the date the divorce becomes final, or, if not then entitled to an annuity, 50 percent of the annuity to which the principal first becomes entitled following that date. A pension to a former spouse of a disability annuitant shall be calculated on the basis of an annuity for which the participant would qualify if not disabled. A pension to a former spouse will be increased by the same percentage of each cost-of-living adjustment received by the principal.
(d) The Department will initiate payment of a pension to a former spouse after complying with the notification and other procedures described in § 19.6.
(e) If a pension can not be paid because a former spouse is missing, the principal may file an affidavit with PER/ER/RET that he/she does not know the whereabouts of the former spouse. In such an event, the principal and the Department will follow the procedures in § 19.11-4 in an effort to locate the former spouse. The annuity of the principal will be reduced by the amount of the pension to the former spouse even though the latter is not being paid. If the former spouse has not been located during the 12-month period following the date the principal files an affidavit under this section, the annuity of the principal will be recomputed effective from its commencing date (or on the date following the last month a pension payment was made to the former spouse) and paid without reduction of the amount of pension to the former spouse. If the former spouse subsequently is located, pension payments to him/her will be initiated at that time at the rate that would have been payable had they been paid continuously from the original effective date. The Department shall not be liable to make any pension payments to the former spouse for the missing period if the procedures under this section were faithfully complied with nor will the Department be responsible for recovering any payments made to the principal for the benefit of the former spouse.
§ 19.9-4 Effect on annuitant.
Any pension payable to a former spouse under this section or pursuant to any spousal agreement or court order shall be deducted from the annuity of the principal. (See § 19.6-4 concerning retroactive adjustments.) If the annuity of such a principal in any month is discontinued or reduced so that the net amount payable is less than the pension to the former spouse or spouses of the principal because of recall, reappointment or reinstatment in the Foreign Service or reemployment in the Government service, the principal’s salary, rather than annuity, shall be reduced by the amount of the pension payment(s). Such salary reductions shall be deposited in the Treasury to the credit of the Fund. If a pension to a former spouse is discontinued for any reason except a suspension pending a determination of entitlement, the annuity of the principal shall be recomputed effective as of the date of discontinuance of the pension, and paid as if the pension to the former spouse had never been deducted.
§ 19.10 Types of annuities to members.
§ 19.10-1 Full annuity.
If a participant retires and does not provide a survivor annuity to a spouse, former spouse or designated beneficiary, the participant receives a “full” annuity. A full annuity means an annuity computed without any survivorship reduction. Example: Average salary $20,000 and maximum of 35 years of service.
| Average basic annual salary for high 3 consecutive years of service | $20,000 |
| Multiplied by 2 pct | .02 |
| $400.00 | |
| Multiplied by 35 years of creditable service | .35 |
| Full annuity | $14,000 |
§ 19.10-2 Reduced annuity with regular survivor annuity to spouse or former spouse.
(a) At commencement of annuity, a participant or former participant may provide a regular survivor annuity for any eligible former spouse and, within the limits of paragraph (b) of this section, a regular survivor annuity to any spouse to whom he/she is then married as described in §§ 19.11-2 and 19.11-3, respectively. A regular survivor annuity for a spouse or former spouse equals 55 percent of the portion of the retiree’s annuity (up to the full amount) designated as the base for the survivor annuity. To provide the survivor annuity, the participant must accept a reduction in his/her full annuity equal to 2
Participant’s full annuity as computed in § 19.10-1: $14,000.
Maximum regular survivor annuity is 55 percent of full annuity: $7,700.
Case I (Participant has a spouse and former spouse at retirement) If the pro rata share for a former spouse is 75 percent, the base for this benefit will be 75 percent of $14,000: $10,500.
The base for the maximum regular survivor annuity for a spouse would then be 25 percent of $14,000, or $3,500.
Combined base: $14,000.
Participant’s full annuity reduced as follows:
2
Plus 10 percent of the amount over $3,600 ($14,000-3,600) $10,400: $1,040.
Total reduction in participant’s full annuity: $1,130.
Participant’s reduced annuity: $12,870.
Survivor annuity for former spouse: 55 percent of $10,500 or $5,775.
Survivor annuity for spouse: 55 percent of $3,500 or $1,925.
Case II (Participant married at retirement with no former spouse. All calculations made without reference to cost-of-living increases described in § 19.11-5d.)
Joint election of base for regular survivor annuity of 90 percent of the maximum, or 90 percent of $14,000: $12,600.
Participant’s full annuity reduced as follows:
2
Plus 10 percent of the amount over $3,600 ($12,600-3,600) $9,000: $900.
Total reduction in participant’s full annuity: $990.
Participant’s reduced annuity: $13,010.
In this example, if divorce occurs subsequent to retirement and a court orders a 75 percent share for the former spouse, the base for the survivor annuity for the former spouse would be 75 percent of $14,000: $10,500.
The participant’s full annuity would then be reduced by $780 in accordance with the above formula for this survivor benefit, and the reduced annuity would be $14,000-780: $13,220.
If the former spouse qualifies for a pension as described in § 19.9 based on a pro rata share of 75 percent, the pension would equal 50 percent of the participant’s reduced annuity times 75 percent (50% × $13,220 × 75%): 4,957.50.
The participant’s reduced annuity would then be further reduced by this pension ($13,220-$4,957.50) to provide an annuity to the former participant of $8,262.50.
If this annuitant later remarried, the maximum base for the regular survivor annuity for the new spouse would be the amount designated at retirement, $12,600, less the amount committed to the former spouse, $10,500: $12,600-10,500 or $2,100.
The survivor annuity for this spouse: 55 percent of $2,100 or $1,555.
The election of this benefit for the new spouse would be made individually by the annuitant since a marriage after retirement does not give a spouse a right to participate in the election.
If the election is made to provide a regular survivor annuity to the new spouse, all of the above calculations would be recomputed effective the first day of the month beginning one year after the date of the remarriage, as follows:
Base for survivor annuity for former spouse: 75% of $14,000 or $10,500.
Survivor annuity for former spouse: 55% of $10,500 or $5,775.
Base for survivor annuity for spouse: 15% of $14,000 or $2,100.
Survivor annuity for spouse: 55% of $2,100 or $1,555.
The combined base for the survivor benefits is $10,500 plus $2,100 or $12,600. The annuity reduction on this combined base as computed above is $990.
The participant’s annuity after reduction for survivor benefit would be $14,000-$990 or $13,010.
The pension for the former spouse would be 50% × $13,010 × 75% or $4,878.75.
The participant’s annuity would be further reduced by this amount: $13,010-$4,878.75 to provide an annuity after this recalculation of $8,131.25.
(b) The maximum regular survivor annuity or combination of regular survivor annuities that may be provided under this section is limited to 55% of the principal’s full annuity computed at retirement. If an annuitant is recalled to active duty in the Foreign Service, he/she may provide additional regular survivor annuities under § 19.10-6. The maximum regular survivor annuity or combination of regular survivor annuities that an annuitant who was married at retirement may elect or provide, pursuant to a court order or otherwise, after retirement in the event of his/her divorce or remarriage, is limited to the amount provided at the time of initial retirement or reversion to retired status following recall service.
§ 19.10-3 Marriage after retirement.
If an annuitant who was unmarried at the time of retirement, marries, he/she may within one year after such marriage irrevocably elect to receive a reduced annuity and to provide, subject to any obligation to provide a survivor annuity for a former spouse, a survivor annuity for the new spouse. If such an election is made, the principal’s annuity shall be reduced in accordance with § 19.10-2 effective on the first day of the first month which begins at least one year after the date of the marriage. The reduction is computed on the commencing rate of the principal’s annuity.
§ 19.10-4 Death or divorce of a spouse and remarriage after retirement.
(a) If the marriage of an annuitant who received a reduced annuity at retirement under § 19.10-2 to provide a survivor annuity for a spouse is dissolved by divorce or by death of the spouse, the retiree’s annuity shall be recomputed, if necessary, as of the first of the month following the death or divorce. If the marriage was dissolved by death, the annuity shall be recomputed and paid at its full amount. If the marriage is dissolved by divorce, procedures in § 19.11-2(b) shall be followed.
(b) In the event an annuitant affected by this paragraph remarries, the annuitant may elect within one year of remarriage to provide a survivor annuity for the new spouse equal in amount to the survivor benefit formerly in effect for the previous spouse less any amount committed for a former spouse. The annuity of a retiree making such an election shall be reduced effective on the first day of the first month which begins at least one year after the remarriage to the amount that would have been payable had there been no recomputation under paragraph (a) of this section.
§ 19.10-5 Reduced annuity with additional survivor annuity to spouse or former spouse.
(a) General. This section provides an opportunity for a participant or former participant who has provided a regular survivor annuity to a former spouse to provide a survivor annuity to a second spouse or to another former spouse. The additional survivor annuity provided under this section generally is more costly than the regular survivor annuity because the participant is required to pay it’s full cost by deduction from salary or annuity, or otherwise, as specified in paragraph (e) of this section. The participant must also be in normal health for his/her age and pass a physical examination prescribed by the Secretary of State (M/MED) to be eligible to provide an additional survivor annuity under this section.
(b) Limitation on amount. Neither the total amount of additional survivor annuity or annuities under this section provided by any participant or former participant nor any combination of regular or additional survivor annuities for any one surviving spouse or former spouse of a principal may exceed 55 percent of the principal’s full annuity counting any supplemental annuity or recomputation of annuity because of recall service. An additional survivor annuity provided by any principal shall be further limited to the amount that can be provided by a monthly payment which is not greater than the principal’s net annuity described in § 19.6-2(b). The amount of any additional survivor annuity provided by a spousal agreement effective prior to the principal’s retirement, shall be reduced as necessary by PER/ER/RET after the principal’s retirement to comply with this limitation. Any amount paid by a participant for the portion of additional survivor annuity cancelled pursuant to this paragraph shall be treated as an additional lump sum payment under paragraph (e) of this section and used to increase the amount of the additional annuity. A participant who separates from the Service without entitlement to any annuity is not entitled to provide an additional survivor annuity. Payments in such a case would be discontinued as described in paragraph (e) of this section.
(c) Procedures to grant additional survivor annuity. A participant or former participant who has provided a regular survivor annuity to a former spouse who wishes to provide, or who is ordered by a court to provide an additional survivor annuity under this section to a spouse or another former spouse, shall do so by filing a spousal agreement with PER/ER/RET on a form acceptable to PER/ER/RET. Such an agreement will be irrevocable when accepted by PER/ER/RET unless the beneficiary of the additional survivor annuity is subsequently made a beneficiary of a regular survivor annuity in equal amount. Within the limitations specified in paragraph (b) of this section, an individual may be made the beneficiary of both a regular and an additional survivor annuity. A spousal agreement granting an additional survivor annuity to a spouse will remain valid in the event the marriage is dissolved and the spouse qualifies as a former spouse under the definition § 19.2(k).
(d) Eligibility for additional survivor annuity. A spouse or former spouse must meet the same criteria (§ 19.2(v) or § 19.2(k)) to be eligible for an additional survivor annuity as a spouse or former spouse must meet to be eligible for a regular survivor annuity. Payment of a special survivor annuity will commence on the day after the participant dies and shall terminate on the last day of the month before death or remarriage before attaining age 60. If it is discontinued because of remarriage, it will not be resumed.
(e) Payment for additional survivor annuity. (1) Payment for an additional survivor annuity will commence on the first of the month following the effective date of a spousal agreement provising the additional survivor annuity. The effective date will be the date of acceptance of the spousal agreement by PER/ER-RET (upon a finding that the agreement conforms to the law and regulations) or such later date as may be specified in the agreement. No payment will be made to a beneficiary under the agreement if the principal dies before its effective date. Accordingly, in order to give protection to a beneficiary during active service, the agreement must be made effective, and payment commence, during active service. Payment will be made by a participant or annuitant by deduction from salary or annuity. Payment will be made by a former participant while awaiting commencement of a deferred annuity by direct payment to the Department, Office of Financial Operations (M/COMP/FO). Payments not received by the due date may, at the option of M/COMP/FO and with notice to the principal and the beneficiary be collected from the principal’s lump-sum account. Amounts so collected must be repaid by the principal with interest compounded at 10 percent annually to prevent exhaustion of the lump-sum account. If the lump-sum account does become exhausted, any rights to the lump-sum payment under § 19.13 and survivorship rights under this paragraph will expire on that date. If the principal dies with an amount owing, it shall be collected by set off from the survivor annuity or lump-sum account.
(2) Monthly payments may be reduced or eliminated by direct payment to M/COMP/FO by any participant or former participant under terms mutually agreed upon by the participant and PER/ER/RET. Minimum monthly payments will be based upon actuarial tables prescribed from time to time by the Director General of the Foreign Service (M/DGP) with the advice of the Secretary of Treasury. Such tables will be calculated so that the present value of all payments equal the present value of the survivor annuity. If new tables are prescribed, they would be applicable to additional survivor annuities provided by spousal agreements that become effective on or after the effective date of the new tables. Additional survivor annuities will be increased by regular cost-of-living adjustments from their commencing dates only when so specified at the option of the participant or former participant in a spousal agreement. Monthly payments will be higher if cost-of-living adjustments are provided.
(3) In the event of the disqualification of a beneficiary for an additional survivor annuity because of death, remarriage prior to age 60 or divorce from the principal and failure to meet the definition of “former spouse,” or in the event of an authorized reduction or cancellation of an election for an additional survivor annuity, the monthly payment for such discontinued or reduced additional survivor annuity will be discontinued or reduced, as appropriate, effective at the beginning of the first month following termination or reduction of the benefit. Except as otherwise specified in paragraph (b) of this section, any amount paid for such discontinued or reduced benefit by a participant or former participant in excess of the minimum monthly payments described above shall be refunded to the participant or former participant with interest calculated at the annual rate used in the last evaluation of the System or at such higher rate as may be authorized by M/COMP/FO as will not cause a loss to the Fund. The following table illustrates the minimum monthly payments schedule in effect February 15, 1981.
| Age of principal and beneficiary on effective date of spousal agreement | Minimum monthly payment required to provide an additional survivor annuity of $100 per month. | |
|---|---|---|
| Without COLA | With COLA | |
| 40 | $7.49 | $12.34 |
| 50 | 14.18 | 22.01 |
| 60 | 23.55 | 33.90 |
| 70 | 35.57 | 47.12 |
(4) Reduction from annuity to a principal to pay for an additional survivor annuity will be in the nature of an allotment and will not affect computations of cost-of-living adjustments to the principal.
§ 19.10-6 Benefits for recall service.
(a) Annuity of recalled participant. Any participant who is recalled to the Service under section 308 of the Act, shall, while serving, be entitled in lieu of annuity to the full salary of the class in which serving. During such service, the recalled annuitant shall make contributions to the Fund under section 805(a) of the Act. If a share of the annuity is being paid as a pension to a former spouse under § 19.9, that share shall be deducted from the salary of the recalled annuitant during the period of the recall service. Upon reversion of the annuitant to retired status, any pension payable to a former spouse that was being deducted from the salary of the principal shall again be deducted from the annuity of the principal which shall be determined as follows:
(1) If the recall service lasts less than one year, a refund of retirement contributions made during the recall period will be refunded under § 19.13 and the former annuity will be resumed at the previous rate adjusted by any cost-of-living increases that became effective during recall service.
(2) If the recall service lasts between one and five years, the annuitant will be entitled to elect benefits under paragraph (a)(1) of this section or receive both the former annuity adjusted by cost-of-living increases and a supplemental annuity computed under § 19.10 on the basis of service credit and average salary earned during the recall period, irrespective of the number of years of service credit previously earned.
(3) If the recall service lasts five years or more, the annuitant will be entitled to recomputation of the annuity as if there had been no previous retirement, or elect benefits under paragraph (a) (1) or (2) of this section.
(4) An annuitant may receive credit in any computation under paragraph (a) (2) or (3) of this section for any Federal service performed subsequent to the separation upon which the original annuity was computed provided a special contribution is made for such service under section 805 of the Act.
(5) An annuitant entitled to a supplemental annuity under paragraph (a)(3) of this section or a recomputated annuity under paragraph (a)(4) of this section is obligated, in the absence of a court order or spousal agreement to the contrary, to have those annuities reduced to provide the benefits described in § 19.8 to any spouse or former spouse to whom married during any portion of the recall service. An annuitant must accept a reduction of 10 percent of his/her supplemental annuity in order to provide a supplemental survivor annuity to a spouse or former spouse. The maximum supplemental survivor annuity equals 55 percent of the supplemental annuity. If, upon reversion to retired status, an annuitant has a former spouse entitled to a pro rata share or some other share of the supplemental survivor annuity, but no spouse, the appropriate share of the supplemental annuity shall be reduced by 10 percent to provide such former spouse a share of the maximum supplemental survivor annuity.
(b) Survivor benefit for death during recall service. (1) If an annuitant entitled to a reduced annuity under § 19.10-2 dies in service after being recalled and is survived by a spouse or former spouse entitled to a survivor annuity based on the service of such annuitant, such survivor annuity shall be computed as if the recall service had otherwise terminated on the day of death and the annuity of the deceased had been resumed in accordance with paragraph (a) of this section. If such death occurs after the annuitant had completed sufficient recall service to attain eligibility for a supplemental annuity, a surviving spouse or surviving former spouse who was married to the participant at any time during a period of recall service shall be entitled to elect, in addition to any other benefits and in lieu of a refund of retirement contributions made during the recall service, a supplemental survivor annuity computed and paid under § 19.10-6a(5) as if the recall service had otherwise terminated. If the annuitant had completed sufficient recall service to attain eligibility to have his/her annuity determined anew, a surviving spouse or such a surviving former spouse may elect, in lieu of any other survivor benefit under § 19.11, to have the rights of the annuitant redetermined and to receive a survivor annuity computed under § 19.11-2 or § 19.11-3 on the basis of the total service of the annuitant. In the event such an annuitant is survived both by a spouse and such a former spouse, the former spouse will be entitled to a pro rata share of any refund or supplemental survivor benefit under this section computed on the basis of total service during the recall period and months of marriage during such period. If the surviving spouse and surviving former spouse elect different benefits under this paragraph, the former spouse will receive the pro rata share of the benefit he/she elects and the spouse will receive the reciprocal share of the benefit he/she elects.
(2) In the event an annuitant dies during recall service and is survived by a former spouse to whom not married during any period of the recall service, such former spouse will not be entitled to any benefits based on the recall service.
§ 19.11 Survivor benefits.
§ 19.11-1 Kinds of survivor benefits.
If a participant or former participant dies in active service or after retirement, regular survivor annuities are payable under terms of this section to an eligible surviving spouse, former spouse or child. Also, if all rights to annuity and survivor annuity terminate prior to exhaustion of the participant’s lump-sum credit, a lump-sum payment is made pursuant to § 19.13. In addition to the above, an additional survivor annuity, and a supplemental survivor annuity may be payable to an eligible survivor under §§ 19.10-5 and 19.10-6, respectively. If any participant or former participant makes an election, files a spousal agreement or becomes subject to a court order to provide a regular survivor annuity for a spouse or former spouse and does not subsequently become entitled to leave a survivor annuity under these regulations (because of separation from the Service and withdrawal of contributions, death after separation but before commencement of a deferred annuity, or for any other reason), none will be paid and such election, spousal agreement or court order to provide such survivor annuity will have no force or effect.
§ 19.11-2 Regular survivor annuity for a former spouse.
(a) Divorce prior to retirement. If a participant or former participant is divorced prior to commencement of annuity, any former spouse shall be entitled to a pro rata share of such a principal’s maximum regular survivor annuity (based on service performed prior to the first date the principal becomes eligible for an annuity following the divorce) unless a different amount is elected in a spousal agreement filed with PER/ER/RET within 12 months after the divorce becomes final or at the time of the retirement, whichever occurs first, or unless a different amount is specified by a court prior to the death of the principal. The principal’s annuity shall be reduced at the commencing date under § 19.10-2 in order to provide the survivor annuity committed to the former spouse.
(b) Divorce after retirement. In the event an annuitant is divorced after retirement (commencement of annuity), the maximum survivor annuity that may be provided for that former spouse is limited to the amount provided for that person at the time of retirement. Within that limit, the former spouse is entitled to a pro rata share of the participant’s maximum survivor benefit (based on service performed prior to the divorce) unless a different amount was elected in a spousal agreement filed with PER/ER/RET at the time of retirement, or in the case of retirement before February 15, 1981, filed with PER/ER/RET within 12 months after the divorce becomes final, or unless a different amount is specified by a court prior to the death of the principal. For this purpose, a joint election filed with PER/ER/RET at the time of retirement is considered a spousal agreement. If the survivor annuity for the former spouse is reduced at the time of the divorce (because the pro rata share or the amount specified in a spousal agreement or court order is less than the amount elected at retirement), the principal’s annuity shall be recomputed and paid, effective on the date the survivor benefit is reduced, as if the lower amount had been elected at the outset of retirement.
(c) Death or remarriage of former spouse and transfer of survivor benefit to a spouse. Remarriage below age 60 or death of a former spouse while a principal is alive will disqualify the former spouse for benefits under this section. In the event of such a remarriage or death of a former spouse, the portion of a principal’s survivor annuity committed to that person will become available for transfer to any spouse. If such a remarriage or death of the former spouse occurs after the principal’s annuity commences, any reduction in the principal’s annuity for that former spouse will be discontinued effective at the beginning of the first month following the remarriage or death unless the annuitant elects to provide or to increase a survivor benefit for a spouse. Such an election may be made within one year after the annuitant receives notice of the remarriage or death of his/her former spouse. The Department (PER/ER/RET) and the annuitant shall each notify the other promptly whenever either receives independent notice of such a remarriage or death. If an election to transfer survivor benefits to a spouse is not made by the annuitant, his/her annuity will be recomputed and paid as if there had been no reduction for the discontinued survivor benefit. If an annuity is so recomputed and an election is subsequently made to designate as beneficiary a spouse to whom married for at least one year at the time the election is made, the principal’s annuity shall be restored retroactively to its former, lower rate and then adjusted by cost-of-living increases that have occured since the date of the first recomputation. If an election is made for a spouse when the marriage has not yet lasted a year, the procedures in § 19.10-4 shall be followed.
(d) Amount of survivor annuity. The amount of a regular survivor annuity is determined under § 19.11-3(c).
(e) Special rules for election of survivor annuity for a person who is a former spouse on February 15, 1981. (1) Any participant, or former participant eligible for a deferred annuity which has not yet commenced, who, on February 15, 1981 has a former spouse, may at any time prior to commencement of annuity, elect, with the consent of any spouse to whom married at the time of the election, to receive a reduced annuity and provide a regular survivor annuity for such former spouse. Such survivor annuity shall be limited by § 19.10-2(b). An election under this paragraph for a former spouse will reduce the amount of any regular survivor annuity that may subsequently be provided for any spouse or other former spouse.
(2) Any former participant in receipt of an annuity who has a former spouse on February 15, 1981 and who has not committed his/her entire annuity as a base for a regular survivor annuity for a spouse or any other former spouse, may, prior to December 31, 1982, designate any portion of the uncommitted base as the base for a regular survivor annuity for such former spouse.
(3) The annuity of a former participant making an election under this paragraph shall be reduced under § 19.10-2(a) effective February 15, 1981, or from its commencing date if later.
(4) An election under this paragraph shall be made by filing a spousal agreement with PER/ER/RET under § 19.7. A spousal agreement to provide a regular survivor annuity under this paragraph for a former spouse may be revoked or amended after its acceptance by PER/ER/RET as in accordance with the Act and these regulations, only by agreement of the parties up to the last day allowed by this paragraph for filing such an agreement. Thereafter, it is irrevocable. If a participant dies in service after having filed a valid election under this section, a survivor annuity will be paid to an eligible former suriving spouse in accordance with the terms of the election.
§ 19.11-3 Regular survivor annuity for a spouse.
(a) In the absence of a joint election or a spousal agreement to the contrary, a participant or former participant who is separated from active service on or after February 15, 1981 who is married at the commencement of his/her annuity shall provide a regular survivor annuity for a spouse under § 19.10-2 equal to the maximum amount that remains available under limitations stated in paragraph (b) of that section after allowing for any commitment of a regular survivor annuity for a former spouse who has not remarried prior to age 60 and who is alive on the date the former participant becomes eligible for an annuity.
(b) A regular survivor annuity is also payable to a surviving spouse for whom a principal elected an annuity under § 19.10-3, § 19.10-4, or § 19.11-2(c) following a marriage after comencement of his/her annuity.
(c) The amount of a regular survivor annuity equals 55 percent of the base designated for the benefit at the time the principal’s annuity commenced, adjusted by the total percentage of cost-of-living increases the principal was receiving at death.
(d) A survivor annuity is payable to a surviving spouse only if that person was married to the principal at the time of his/her death or if the spouse became a former spouse under the definition in § 19.2(k).
§ 19.11-4 Procedure in event a spouse or former spouse is missing.
If a participant or former participant has a spouse or former spouse whose whereabouts are unknown, such participant may elect to reduce or eliminate the share of a regular survivor annuity provided for that person under § 19.11-2 or § 19.11-3 by filing an affidavit with PER/ER/RET stating that his/her spouse or former spouse is missing and giving full name, last known address, date last heard from, circumstances of the disappearance and a description of the effort that has been made to locate the individual. Thereafter, the participant shall take such additional steps to locate the missing person as may be directed by PER/ER/RET. That Office shall also attempt to locate the missing person by sending a letter to the individual’s last known address given in the Department’s files, to the address given on the affidavit, and, if a Social Security number is known, to the Social Security Administration for forwarding. The election and affidavit may be filed at any time before commencement of annuity. It must remain on file with PER/ER/RET for at least one year before being given irrevocable effect by the Department. If the annuity to the former participant becomes effective prior to the expiration of this one year period, the annuity shall be computed and paid without reference to the election filed under this section. Following this one-year period, or at the commencement of annuity, if later, if the missing person has not been located, the affidavit may be reaffirmed by the participant, after which an election by the participant to reduce or eliminate the share of regular survivor annuity for the missing person shall be given irrevocable effect by the Department. If the annuity to the former participant has commenced, it shall be recomputed and paid retroactively to give effect to any election made under this section.
§ 19.11-5 Commencement, termination and adjustment of annuities.
(a) An annuity payable from the Fund to a surviving spouse or former spouse begins on the day after the participant or annuitant dies and stops on the last day of the month before the survivor’s (1) marriage before age 60, or (2) death. If a survivor annuity is terminated because of remarriage, the annuity is restored at the same rate effective on the date such remarriage is terminated, provided any lump-sum paid upon termination of the annuity is returned to the Fund. The termination of a surviving spouse annuity due to remarriage does not apply to a survivor annuitant who is a surviving spouse of a participant who died in service or retired before October 1, 1976, unless elected following a marriage after retirement under circumstances described in § 19.10-3 or § 19.10-4.
(b) A surviving spouse or former spouse shall not become entitled to a survivor annuity or to the restoration of a survivor annuity payable from the Fund unless the survivor elects to receive it instead of any other survivor annuity to which entitled under this or any other retirement system for Government employees. (For this purpose, neither the Social Security system nor the military retirement system is considered a retirement system for Government employees.) This restriction does not apply to a survivor annuitant who is a surviving spouse of a participant who died in service or retired before October 1, 1976, unless the survivor annuity was elected under circumstances described in § 19.10-3 or § 19.10-4.
(c) A child’s annuity begins on the day after the participant dies, or if a child is not then qualified, on the first day of the month in which the child becomes eligible. A child’s annuity shall terminate on the last day of the month which precedes the month in which eligibility ceases.
(d) Regular and supplemental survivor annuities to a spouse or former spouse of an annuitant described in §§ 19.11-2, 19.11-3 and 19.10-6(b) are increased from their effective date by the cumulative percentage of cost-of-living increases the annuitant was receiving under section 826 of the Act at death. All annuities payable to survivors on the date a cost-of-living adjustment becomes effective are increased by that percentage except (1) the first increase to a surviving spouse of a participant who dies in service shall be pro rated and (2) additional survivor annuities under § 19.10-5 when the spousal agreement authorizing the annuity makes no provision for cost-of-living increases.
(e) The annuity of survivors becomes effective as specified in this section but is not paid until the survivor submits Form JF-38, Application for Death Benefits, supported by such proof as may be required, for example, death, marriage, and/or divorce certificates. In the event that such is not submitted during an otherwise eligible beneficiary’s lifetime, no annuity is due or payable to the beneficiary’s estate.
§ 19.11-6 Death during active duty.
(a) Annuity for surviving former spouse. In the event a participant dies before separation from the Service and leaves a former spouse, such former spouse is entitled to a regular survivor annuity under § 19.11-2 computed as if the participant had retired on the date of death unless a court order or spousal agreement is on file in the Department waiving such entitlement or providing for some other computation, or unless the former spouse had been found missing and an election filed under the procedures of § 19.11-4 waiving a survivor benefit for that person. Any assumed service authorized to be used under paragraph (b) of this section in computing the annuity for a surviving spouse may not be counted as “years of marriage” when determining whether the previous spouse qualifies as a “former spouse” under the definition in § 19.2(k) or when computing the pro rata share under § 19.2(s). A former spouse is entitled to an additional survivor annuity under § 19.10-5 provided death occurs on or after the effective date of a spousal agreement providing for the additional annuity.
(b) Annuity for surviving spouse. If a participant who has at least 19 months of civilian service credit toward retirement under the System, excluding extra service credited for unhealthful post duty in accordance with section 816 of the Act, dies before separation from the Service, and is survived by a spouse as defined in § 19.2(v) such survivor shall be entitled to an annuity equal to 55 percent of the annuity computed in accordance with § 19.10-1 less any annuity payable to a former spouse under paragraph a. If the participant had less than three years of creditable civilian service at the time of death, the survivor annuity is computed on the basis of the average salary for the entire period of such service. If, at time of death, the participant had less than 20 years of creditable service, the annuity shall be computed on the assumption that the participant has had 20 years of service, but such additional service credit shall in no case exceed the difference between the participant’s age on the date of death and age 65. A spouse is entitled to an additional survivor annuity under § 19.10-5 provided death occurs on or after the effective date of a spousal agreement providing for the additional annuity.
(c) Annuity for a child or children. If a participant described in paragraph (b) of this section is survived by a child or children, each surviving child is entitled to an annuity as described in § 19.11-7.
(d) Annuity changes. Annuities based on a death in service are subject to the provisions of § 19.11-5 governing commencement, adjustment, termination and resumption of annuities.
§ 19.11-7 Annuity payable to surviving child or children.
(a) If a participant who has at least 18 months of civilian service credit under the System dies in service, or if an annuitant who was a former participant dies, annuities are payable to a surviving child or children, as defined in § 19.2(e) as follows:
(1) When survived by spouse and child or children. If a principal is survived by a wife or husband and by a child or children, in addition to any other annuity, there shall be paid to or on behalf of each child an annuity equal to the smallest of:
(i) $900
(ii) $2,700 divided by the number of children – adjusted under paragraph (b).
(2) When survived by a child or children but no spouse. If the principal is not survived by a wife or husband, but by a child or children, each surviving child shall be paid an annuity equal to the smallest of:
(i) $1,080
(ii) $3,240 divided by the number of children – adjusted under paragraph (b) of this section.
(b) Adjusted rates. In order to reflect cost-of-living increases, the amounts referred to in paragraphs (a)(1) and (2) are increased from the commencing date of the annuity to each child by the cumulative percentage of all cost-of-living increases that have occurred under 5 U.S.C. 8340 since October 31, 1969.
(c) Recomputation of annuity for child or children. If a surviving wife or husband dies or the annuity of a child is terminated, the annuities of any remaining children shall be recomputed and paid as though such spouse or child had not survived the participant. If the annuity to a surviving child who has not been receiving an annuity is initiated or resumed, the annuities of any other children shall be recomputed and paid from that date as though the annuities to all currently eligible children in the family were then being initiated.
§ 19.11-8 Required elections between survivor benefits.
(a) Bar against concurrent payment under this Act and Workers’ Compensation Act. Except as stated below, survivor annuities and survivors’ compensation for work injuries under 5 U.S.C. 8102 are not payable concurrently if both are based on the death of the same employee. A survivor entitled to both must elect which of the two benefits he/she prefers. Should all eligible survivors of a deceased employee elect to receive the compensation benefit rather than the survivor annuity, their rights to the latter are terminated and, if the lump-sum credit has not been exhausted, a lump-sum payment will become due under § 19.13. The one exception to this rule occurs when a widow or widower is being paid the balance of a scheduled compensation award under 5 U.S.C. 8107 due the deceased employee. If so, the widow or widower may receive the survivor annuity and compensation award concurrently.
(b) Election between survivor annuity and social security benefits. Pursuant to 42 U.S.C. 417 (a) and (e), survivors who are eligible for annuity which is based in part on military service performed by a principal between September 16, 1940, and December 31, 1956, and also for survivor benefits under the Social Security system, may elect to have the military service credited toward the Social Security benefit. In practice, the survivors should apply for both benefits, ask the Department and the Social Security Administration for statements showing the amount of each benefit, and then make their election of where to credit the military service. If Social Security benefits are elected, the rights of all survivors to a foreign service annuity are terminated.
§ 19.12 Employment in a Government agency.
An annuitant who is reemployed by a Federal Government agency may not receive a combination of salary and annuity which exceeds his/her Foreign Service salary at the time of retirement. Refer to § 19.9-4.
§ 19.13 Lump-sum payment.
§ 19.13-1 Lump-sum credit.
“Lump-sum credit” is the compulsory and special contributions to a participant’s or former participant’s credit in the Fund for his/her first 35 years of service plus interest thereon computed from the midpoint of each service period and compounded at four percent annually to the date of separation or December 31, 1976, whichever is earlier, and after such date, for a participant who separates from the Service after completing at least one year of civilian service and before completing 5 years of such service, at the rate of three percent annually to the date of separation. Interest shall not be paid for a fractional part of a month in the total service or on compulsory and special contributions from the annuitant for recall service or other service performed after the date of separation which forms the basis for annuity.
A former spouse of a participant or annuitant is entitled to a prorata share of 50 percent of any lump-sum payment authorized to be paid to a former participant under this section who separated from the Service on or after February 15, 1981, unless otherwise directed in a court order or a spousal agreement.
§ 19.13-3 Payment after death of principal.
If a participant or former participant dies and no claim for annuity is payable, the lump-sum credit is paid to surviving beneficiaries.
§ 19.14 Waiver of annuity.
An individual entitled to be paid an annuity may, for personal reasons, decline to accept all or any part of the annuity. However, a principal may not waive the portion of his/her annuity authorized to be paid to a former spouse under § 19.7 or § 19.9 or to a beneficiary under § 19.6. An annuity waiver shall be in writing and sent to the Department (PER/ER/RET). A waiver may be revoked in writing at any time. Payment of the annuity waived may not be made for the period during which the waiver was in effect.
PART 20 – BENEFITS FOR CERTAIN FORMER SPOUSES
§ 20.1 Definitions.
As used in this part, unless otherwise specified, the following have the meaning indicated:
COLA means cost-of-living adjustment in annuity.
Creditable service or service means employment or other periods that are counted under sections 816, 817, or 854 in determining retirement benefits.
Disability annuitant means a participant in FSRDS or FSPS entitled to a disability annuity under section 808 of the Act or subchapter V, chapter 84, title 5 U.S.C., and a disability annuity means a Foreign Service annuity computed under those sections.
FSRDS means the Foreign Service Retirement and Disability System established by subchapter I, chapter 8, of the Act.
FSPS means the Foreign Service Pension System established by subchapter II, chapter 8, of the Act.
Former spouse means a former wife or husband of a participant or former participant who was married to such participant for not less than 10 years during service of the participant which is creditable under chapter 8 of the Act with at least 5 years occurring while the employee was a member of the Foreign Service and who retired from the Foreign Service Retirement System.
Full annuity equals the annuity the former participant would be eligible to receive except for deductions made to provide survivor benefits or because of payment of a portion of the annuity to others.
Participant means a person who contributes to the Fund identified in § 20.2. Such person may participate in either FSRDS or FSPS.
Principal means a participant or former participant whose service forms the basis for a benefit for a former spouse under this part.
Pro rata share, in the case of a former spouse of a participant or former participant, means the percentage obtained by dividing the number of months during which the former spouse was married to the participant during the creditable service of the participant by the total number of months of such creditable service. In the total period, 30 days constitutes a month and any period of less than 30 days is not counted. When making this calculation for a former spouse married to a participant during a period the participant earned extra service credit under section 817 of the Act, the number of months of such extra service credit earned during that period of the marriage shall be added to the total number of months of the marriage.
§ 20.2 Funding.
Benefits under this part are paid from the Fund maintained by the Secretary of the Treasury pursuant to section 802 of the Act but are not authorized to be paid except to the extent provided therefor. Appropriations for such Fund are authorized by section 821(a) of the Act.
§ 20.3 Qualifications.
To be eligible for retirement or survivor benefits under this part, a former spouse must –
(a) Have been a former spouse on February 14, 1981;
(b) After becoming a former spouse, not have remarried before attaining age 55;
(c) In the case of any retirement benefit under § 20.5; elect this benefit instead of any survivor annuity for which the former spouse may simultaneously be eligible under this or another retirement system for Government employees; and
(d) Submit an application to the Department of State by June 22, 1990, in accordance with § 20.9 unless that date is extended as authorized by that section. The deadline for submission of an application for survivor benefits under § 20.5 will be deemed to have been met if the former spouse submits an application for retirement benefits within the deadline.
§ 20.4 Retirement benefits.
(a) Type of benefits. (1) A former spouse who meets the qualification requirements of § 20.3 is entitled to a share of any Foreign Service annuity (other than a disability annuity) or any supplemental annuity computed under section 806(a), 823 or 824 of the Act to which the principal is entitled under FSRDS and to any Foreign Service annuity (other than a disability annuity) or annuity supplement computed under section 824 or 855 of the Act of 5 U.S.C. 8415 to which the principal is entitled under FSPS.
(2) A former spouse of a disability annuitant is entitled to a share of benefits to which the annuitant would qualify under paragraph (a) of this section, he or she not been disabled based on the actual age and service of the annuitant.
(b) Share. The share of a participant’s benefits to which a qualified former spouse is entitled is –
(1) 50 percent of the benefits described in § 20.4(a) if the former spouse was married to the participant throughout the latter’s creditable service; or
(2) A pro rata share of 50 percent of such benefits if the former spouse was not married to the participant throughout such creditable service.
(c) Reduction of benefits. If retirement benefits of a principal are reduced because of reemployment, attainment of eligibility for Social Security benefits or for any other reason, the amount of the share payable to a former spouse is correspondingly reduced during the period of the reduction.
(d) Commencement, termination and suspension. (1) Entitlement to retirement benefits under this section (except for a former spouse of a disability annuitant) shall commence on the latter of –
(i) The day the principal becomes entitled to benefits described in § 20.4(a); or
(ii) December 22, 1987.
(2) Entitlement to retirement benefits under this section for a former spouse of a disability annuitant shall commence on the latter of –
(i) The date the principal would qualify for benefits (other than a disability annuity) described in § 20.4(a) on the basis of the principal’s actual age and service;
(ii) The date the disability annuity begins; or
(iii) December 22, 1987.
(3) Entitlement to retirement benefits under this section shall terminate or be suspended on the earlier of –
(i) Last day of the month before the former spouse dies or remarries before attaining age 55;
(ii) Date benefits of the principal terminate or are suspended because of death, recall, reemployment, recovery from disability or for any other reason.
(4) Entitlement to benefits under this section shall be resumed for a former spouse, following their suspension, or the date they are resumed for the principal.
§ 20.5 Survivor benefits.
(a) Type of benefits. A former spouse who meets the eligibility requirements of § 20.3 is entitled to survivor benefits equal to one of the following; whichever is applicable:
(1) 55 percent of the full annuity to which the principal was entitled on the commencement or recomputation date of the annuity in the case of a principal who dies while in receipt of a Foreign Service annuity computed under section 806, 808, 823, 824, or 855 of the Act of 5 U.S.C. 8415;
(2) 55 percent of the annuity to which the principal was entitled at death in the case of a principal who dies while in receipt of a Foreign Service annuity computed under 5 U.S.C. 8452;
(3) 55 percent of the full annuity to which the principal would have been entitled if he or she retired (or returned to retirement status) on the date of death computed – depending on the provision that would be used to compute an annuity for a surviving spouse of the principal – under section 806(a), 823, 824, or 855(b) of the Act of 5 U.S.C. 8415 and using the actual service of the principal, in the case of a principal who dies while in active service, including service on recall or reemployment while annuity is suspended or reduced; or,
(4) 55 percent of the full annuity computed under 5 U.S.C. 8413(b) that the principal could have elected to receive commencing on the date of death or, if later, commencing on the date the principal would have attained the minimum retirement age described in 5 U.S.C. 8412(h), in the case of a principal while entitled to a deferred annuity under 5 U.S.C. 8413(b), but before commencement of that annuity. A survivor annuity under this paragraph may not commence before the date the principal would have attained the minimum retirement age.
(b) Effect of election of alternate form annuity. If a principal elects an alternate form annuity under section 829 of the Act or 5 U.S.C. 8420a, survivor benefits for a former spouse under this section shall, nevertheless, be based on what the principal’s annuity would have been had the principal not withdrawn retirement contributions in a lump sum.
(c) Reduction because of receipt of other survivor benefits. If a former spouse is in receipt of a survivor annuity based on an election by the principal under section 806(f) or 2109 of the Act, the survivor benefits for the former spouse under this section shall be reduced on the effective date by the amount of such elected survivor annuity.
(d) Commencement and Termination. Entitlement to survivor benefits under this section –
(1) Shall commence on the latter of –
(i) The date the principal dies;
(ii) December 22, 1987; and
(2) Shall terminate on the last day of the month before the former spouse dies or remarries before attaining age 55.
§ 20.6 COLA.
(a) Retirement benefits. A retirement annuity payable to a former spouse under § 20.4 is adjusted for cost-of-living increases under section 826 or 858 of the Act in the same manner as the annuity of the principal. The first such increase for a former spouse shall be prorated under the applicable section in the same way the first increase for the principal is adjusted, irrespective of whether the annuity to the former spouse commences on the same date as the annuity to the principal. If the benefit of a former spouse is based in part on an annuity supplement payable to a principal under 5 U.S.C. 8421 which is not adjusted by COLA, then that portion of the benefit payable to a former spouse is not adjusted by COLA.
(b) Survivor benefits. (1) Survivor annuities payable to a former spouse are adjusted for COLA under section 826 or 858 of the Act in the same manner as annuities are or would be adjusted for other survivors of the principal.
(2) A survivor annuity payable to a former spouse under § 20.5-1(A) shall be increased from its commencing date pursuant to paragraph (c)(2) of section 826 of the Act or 8462 of Title 5, U.S. Code, by all COLA received by the principal at death, irrespective of the date of death and in instances where death occurred prior to December 22, 1987, by all COLA that would have been paid to a survivor annuitant from the date of death until December 22, 1987.
(3) The first increase to which a former spouse becomes entitled whose annuity is computed under § 20.5(a)(2) shall be prorated pursuant to 5 U.S.C. 8462(c)(4).
(4) The first increase to which a former spouse becomes entitled whose annuity is computed under § 20.5(a)(3) or
(5) Shall be prorated pursuant to paragraph (c)(1) of section 826 of the Act or 8462 or title 5, U.S. Code.
§ 20.7 Waiver.
A former spouse entitled to an annuity under this part may decide to decline all or any part of the annuity for personal reasons. An annuity waiver shall be in writing and sent to the Retirement Division (PER/ER/RET), Department of State, Washington, DC 20520. A waiver may be revoked in writing at any time. Payment of the annuity waived prior to receipt by the Retirement Division of the renovation may not be made.
§ 20.8 Effect on other benefits.
Payment to a former spouse under this part shall not impair, reduce, or otherwise affect benefits paid under the Act to the principal or other persons.
§ 20.9 Application procedure.
(a) Submission of application. To be eligible for retirement or survivor benefits under this part, a former spouse must submit a properly executed and completed application to the Department of State by June 22, 1990 or, if an exception is made for compelling cause to this deadline, within 60 days following the date of the letter from the Department transmitting the application to the former spouse. The application must be delivered or mailed to the Retirement Division (PER/ER/RET), Room 1251, Department of State, Washington, DC 20520.
(b) Request for application. The Department of State has attempted to mail applications to all former spouses of whom it is aware that it believes may be eligible for benefits under this part. Any eligible former spouse who does not have an application at the time this part is published in the
It shall also give the dates of marriage and divorce or annulment that establish eligibility and fully identify the Foreign Service employee or former employee in question and state the agency of current or last employment.
(c) Payment of benefits delayed. Payment of benefits cannot be made to a former spouse until the application for benefits is approved by the Retirement Division of the Department. Upon such approval, benefits will be paid to an eligible former spouse retroactively, if necessary, back to the commencing date determined under this part.
PART 21 – INDEMNIFICATION OF EMPLOYEES
§ 21.1 Policy.
(a) The Department of State may indemnify an employee for any verdict, judgment, or other monetary award which is rendered against such employee, provided that the conduct giving rise to the verdict, judgment, or award was taken within the scope of employment and that such indemnification is in the interest of the United States, as determined as a matter of discretion by the Under Secretary for Management or his or her designee.
(b) The Department of State may settle or compromise a personal damages claim against an employee by the payment of available funds at any time, provided the alleged conduct giving rise to the personal damages claim was taken within the scope of employment and that such settlement or compromise is in the interest of the United States, as determined as a matter of discretion by the Under Secretary for Management or his or her designee.
(c) The Director General of the Foreign Service and Director of Personnel (“Director General”) shall be the designee of the Under Secretary for Management with respect to determinations under paragraphs (a) and (b) of this section in cases which involve:
(1) Foreign courts or foreign administrative bodies and
(2) Requests of less than five thousand dollars.
(d) Absent exceptional circumstances as determined by the Under Secretary for Management or his or her designee, the Department will not entertain a request either to agree to indemnify or to settle a personal damages claim before entry of an adverse verdict, judgment, or award.
(e) When an employee in the United States becomes aware that an action has been filed against the employee in his or her personal capacity as a result of conduct taken within the scope of his or her employment, the employee shall immediately notify the Department through the Executive Director of the Office of the Legal Adviser that such an action is pending. Employees overseas shall notify their Administrative Counselor who shall then notify the Assistant Legal Adviser for Special Functional Problems. Employees may be authorized to receive legal representation by the Department of Justice in accordance with 28 CFR 50.15.
(f) The employee may thereafter request indemnification to satisfy a verdict, judgment, or award entered against the employee. The employee shall submit a written request, with appropriate documentation including copies of the verdict, judgment, award, or settlement proposal if on appeal, to the Legal Adviser. Except as provided in paragraph (g) of this section, the Legal Adviser and the Director General shall then, in coordination with the Bureau of Finance and Management Policy, forward the request with their recommendation to the Under Secretary for Management for decision. The Legal Adviser may seek the views of the Department of Justice, as appropriate, in preparing this recommendation.
(g) Cases in which the Director General is the designee under paragraph (c) of this section may be forwarded by the Assistant Legal Adviser for Special Functional Problems, along with the views of the employee and the bureau or post as appropriate, to the Director General for decision.
(h) Personal services contractors of the Department are considered employees for purposes of the policy set forth in this part.
(i) Any payment under this part either to indemnify a Department of State employee or to settle a personal damages claim shall be contingent upon the availability of appropriated funds.
(j) In addition to the indemnification provisions contained in the regulations in this part, the Department will also follow any specific policies or regulations adopted with respect to damages awarded against Department health care personnel for malpractice claims within the scope of 22 U.S.C. 2702.
SUBCHAPTER C – FEES AND FUNDS
PART 22 – SCHEDULE OF FEES FOR CONSULAR SERVICES – DEPARTMENT OF STATE AND FOREIGN SERVICE
§ 22.1 Schedule of fees.
The following table sets forth the fees for the following categories listed on the U.S. Department of State’s Schedule of Fees for Consular Services:
Schedule of Fees for Consular Services
| Item No. | Fee |
|---|---|
| 1. Passport Book or Card Execution: Required for first-time applicants and others who must apply in person | $35 |
| 2. Passport Book Application Services for: | |
| (a) Applicants age 16 or over (including renewals) | $50 |
| (b) Applicants under age 16 | $20 |
| (c) [Reserved] | |
| (d) Passport book replacement for name change if submitted within one year of passport issuance | NO FEE. |
| (e) Passport book replacement for passport book limited in validity if submitted within one year of passport issuance. (Passport books limited in validity because of multiple losses, thefts, damage, or mutilations cannot be replaced) | NO FEE. |
| (f) Passport book replacement for data correction (name, date of birth, place of birth, sex printed erroneously) if submitted within one year of passport issuance | NO FEE. |
| (g) Passport book security surcharge (enhanced border security fee) | $80 |
| 3. Expedited service: Passport processing within the expedited processing period published on the Department’s website (see 22 CFR 51.56(b)) and/or in-person service at a U.S. Passport Agency (not applicable abroad) | $60. |
| 4. Exemptions: The following applicants are exempted from all passport fees listed in Item 2 above: | |
| (a) Officers or employees of the United States and their immediate family members (22 U.S.C. 214) and Peace Corps Volunteers and Leaders (22 U.S.C. 2504(h)) proceeding abroad or returning to the United States in the discharge of their official duties | NO FEE. |
| (b) U.S. citizen seamen who require a passport in connection with their duties aboard an American flag vessel (22 U.S.C. 214(a)) | NO FEE. |
| (c) Widows, children, parents, or siblings of deceased members of the Armed Forces proceeding abroad to visit the graves of such members (22 U.S.C. 214(a)) | NO FEE. |
| (d) Employees of the American National Red Cross proceeding abroad as members of the Armed Forces of the United States (10 U.S.C. 2602(c)) | NO FEE. |
| 5. Travel Letter: Provided in rare, life-or-death situations as an emergency accommodation to a U.S. citizen returning to the United States when the consular officer is unable to issue a passport book | NO FEE unless consular time charges (Item 75) apply. |
| 6. File search and verification of U.S. citizenship: When applicant has not presented evidence of citizenship and previous records must be searched (except for an applicant abroad whose passport was stolen or lost abroad or when one of the exemptions is applicable) | $150. |
| 7. Application for Consular Report of Birth Abroad of a Citizen of the United States | $100. |
| 8. Administrative Processing of Request for Certificate of Loss of Nationality | 2,350 |
| 9. Passport Card Application Services for: | |
| (a) Applicants age 16 or over (including renewals) [Adult Passport Card] | $30. |
| (b) Applicants under age 16 [Minor Passport Card] | $15. |
| (c) Passport card replacement for name change if submitted within one year of passport issuance | NO FEE. |
| (d) Passport card replacement for data correction (name, date of birth, place of birth, sex printed erroneously) if submitted within one year of passport issuance | NO FEE. |
| (Item 10 vacant.) | |
| 11. Arrest and prison visits | NO FEE. |
| 12. Assistance regarding the welfare and whereabouts of a U.S. Citizen, including child custody inquiries and processing of repatriation and emergency dietary assistance loans | NO FEE. |
| (Item 13 vacant.) | |
| 14. Assistance to next-of-kin: | |
| (a) After the death of a U.S. citizen abroad (providing assistance in disposition of remains, making arrangements for shipping remains, issuing Consular Mortuary Certificate, and providing up to 20 original Consular Reports of Death) | NO FEE. |
| (b) Making arrangements for a deceased non-U.S. citizen family member (providing assistance in shipping or other disposition of remains of a non-U.S. Citizen) | $200 plus expenses. |
| 15. Issuance of Consular Mortuary Certificate on behalf of a non-U.S. Citizen | $60. |
| 16. Acting as a provisional conservator of estates of U.S. Citizens: | |
| (a) Taking possession of personal effects; making an inventory under an official seal (unless significant time and/or expenses incurred) | NO FEE. |
| (b) Overseeing the appraisal, sale, and final disposition of the estate, including disbursing funds, forwarding securities, etc. (unless significant time and/or expenses incurred) | NO FEE. |
| (c) For services listed in Item 16(a) or (b) when significant time and/or expenses are incurred | Consular time (Item 75) plus expenses. |
| (Items 17 through 19 vacant.) | |
| 20. Filing Nonimmigrant Visa Petition Based on Blanket L Petition (collected for USCIS and subject to change) | For fee amount, see 8 CFR 103.7(b)(1). |
| (a) Petition for a nonimmigrant worker (Form I-129) | For fee amount, see 8 CFR 103.7(b)(1). |
| (b) Nonimmigrant petition based on blanket L petition | For fee amount, see 8 CFR 103.7(b)(1). |
| 21. Nonimmigrant Visa Application and Border Crossing Card Processing Fees (per person): | |
| (a) Non-petition-based nonimmigrant visa (except E category) | $160 |
| (b) H, L, O, P, Q and R category nonimmigrant visa | $190 |
| (c) E category nonimmigrant visa | $205 |
| (d) K category (fiancé) nonimmigrant visa | $265 |
| (e) Border crossing card – age 15 and over (10 year validity) | $160 |
| (f) Border crossing card – under age 15; for Mexican citizens if parent or guardian has or is applying for a border crossing card (valid 10 years or until the applicant reaches age 15, whichever is sooner) | $15 |
| 22. EXEMPTIONS from Nonimmigrant Visa Application Processing Fee: | |
| (a) Applicants for A, G, C-3, NATO and diplomatic visas as defined in 22 CFR 41.26 | NO FEE. |
| (b) Applicants for J visas participating in official U.S. Government sponsored educational and cultural exchanges | NO FEE. |
| (c) Replacement machine-readable visa when the original visa was not properly affixed or needs to be reissued through no fault of the applicant | NO FEE. |
| (d) Applicants exempted by international agreement as determined by the Department, including members and staff of an observer mission to United Nations Headquarters recognized by the UN General Assembly, and their immediate families | NO FEE. |
| (e) Applicants traveling to provide charitable services as determined by the Department | NO FEE. |
| (f) U.S. government employees traveling on official business | NO FEE. |
| (g) A parent, sibling, spouse, or child of a U.S. government employee killed in the line of duty who is traveling to attend the employee’s funeral and/or burial; or a parent, sibling, spouse, son, or daughter of a U.S. government employee critically injured in the line of duty for visitation during emergency treatment and convalescence | NO FEE. |
| 23. Nonimmigrant Visa Issuance Fee, including Border-Crossing Cards (Reciprocity Fee) | RECIPROCAL. |
| 24. EXEMPTIONS from Nonimmigrant Visa Issuance Fee: | |
| (a) An official representative of a foreign government or an international or regional organization of which the U.S. is a member; members and staff of an observer mission to United Nations Headquarters recognized by the UN General Assembly; and applicants for diplomatic visas as defined under item 22(a); and their immediate families | NO FEE. |
| (b) An applicant transiting to and from the United Nations Headquarters | NO FEE. |
| (c) An applicant participating in a U.S. government sponsored program | NO FEE. |
| (d) An applicant traveling to provide charitable services as determined by the Department | NO FEE. |
| 25. Fraud Prevention and Detection Fee for Visa Applicant included in L Blanket Petition (principal applicant only) | $500. |
| (Items 26 through 30 vacant.) | |
| 31. Filing Immigrant Visa Petition (collected for USCIS and subject to change): | |
| (a) Petition to classify status of alien relative for issuance of immigrant Visa | For fee amount, see 8 CFR 103.7(b)(1). |
| (b) Petition to classify orphan as an immediate relative | For fee amount, see 8 CFR 103.7(b)(1). |
| 32. Immigrant Visa Application Processing Fee (per person) | |
| (a) Immediate relative and family preference applications | $325 |
| (b) Employment-based applications | $345 |
| (c) Other immigrant visa applications (including I-360 self-petitioners and special immigrant visa applicants) | $205 |
| (d) Certain Iraqi and Afghan special immigrant visa applications | NO FEE. |
| (e) Certain adoptee applicants for replacement Immigrant Visas as described in 22 CFR 42.71(b)(2) | NO FEE. |
| (f) Certain immigrant visa applicants previously refused pursuant to Proclamation 9645 or Proclamation 9983, as described in 22 CFR 42.71(b)(3) | NO FEE. |
| 33. Diversity Visa Lottery Fee (per person applying as a result of the lottery program) | $330. |
| 34. Affidavit of Support Review (only when reviewed domestically) | $120 |
| (a) Certain immigrant visa applicants previously refused solely pursuant to Proclamation 9645 or Proclamation 9983, as described in 22 CFR 42.71(b)(3) | NO FEE. |
| 35. Special Visa Services: | |
| (a) Determining Returning Resident Status | $180 |
| (b) Waiver of two year residency requirement | $120 |
| (c) Waiver of immigrant visa ineligibility (collected for USCIS and subject to change) | For fee amount, see 8 CFR 103.7(b)(1). |
| (d) Refugee or significant public benefit parole case processing | NO FEE. |
| (Items 36 through 40 vacant.) | |
| 41. Providing notarial service: | |
| (a) First service (seal) | $50. |
| (b) Each additional seal provided at the same time in connection with the same transaction | $50. |
| 42. Certification of a true copy or that no record of an official file can be located (by a post abroad): | |
| (a) First Copy | $50. |
| (b) Each additional copy provided at the same time | $50. |
| 43. Provision of documents, certified copies of documents, and other certifications by the Department of State (domestic): | |
| (a) Documents relating to births, marriages, and deaths of U.S. citizens abroad originally issued by a U.S. embassy or consulate | $50. |
| (b) Issuance of Replacement Report of Birth Abroad | $50. |
| (c) Certified copies of documents relating to births and deaths within the former Canal Zone of Panama from records maintained by the Canal Zone Government from 1904 to September 30, 1979 | $50. |
| (d) Certifying a copy of a document or extract from an official passport record | $50. |
| (e) Certifying that no record of an official file can be located | $50. |
| (f) Each additional copy provided at same time | $50. |
| 44. Authentications (by posts abroad): | |
| (a) Authenticating a foreign notary or other foreign official seal or signature | $50. |
| (b) Authenticating a U.S. Federal, State, or territorial seal | $50. |
| (c) Certifying to the official status of an officer of the U.S. Department of State or of a foreign diplomatic or consular officer accredited to or recognized by the U.S. Government | $50. |
| (d) Each authentication | $50. |
| 45. Exemptions: Notarial, certification, and authentication fees (Items 41-44) or passport file search fees (Item 6) will not be charged when the service is performed: | |
| (a) At the direct request of any Federal Government agency, any state or local government, the District of Columbia, or any of the territories or possessions of the United States (unless significant costs would be incurred) | NO FEE. |
| (b) With respect to documents to be presented by claimants, beneficiaries, or their witnesses in connection with obtaining Federal, state, or municipal benefits | NO FEE. |
| (c) For U.S. citizens outside the United States preparing ballots for any public election in the United States or any of its territories | NO FEE. |
| (d) At the direct request of a foreign government or an international agency of which the United States is a member if the documents are for official noncommercial use | NO FEE. |
| (e) At the direct request of a foreign government official when appropriate or as a reciprocal courtesy | NO FEE. |
| (f) At the request of direct-hire U.S. Government personnel, Peace Corps volunteers, or their dependents stationed or traveling officially in a foreign country | NO FEE. |
| (g) With respect to documents whose production is ordered by a court of competent jurisdiction | NO FEE. |
| (h) With respect to affidavits of support for immigrant visa applications | NO FEE. |
| (i) With respect to endorsing U.S. Savings Bonds Certificates | NO FEE. |
| 46. Authentications (by the Office of Authentications domestically): | |
| (a) Each basic authentication service | $20 |
| (Items 47 through 50 vacant.) | |
| 51. Processing letters rogatory and Foreign Sovereign Immunities Act (FSIA) judicial assistance cases, including providing seal and certificate for return of letters rogatory executed by foreign officials | $2,275. |
| 52. Taking depositions or executing commissions to take testimony: | |
| (a) Scheduling/arranging appointments for depositions, including depositions by video teleconference (per daily appointment) | $1,283. |
| (b) Attending or taking depositions, or executing commissions to take testimony (per hour or part thereof) | $309 per hour plus expenses. |
| (c) Swearing in witnesses for telephone depositions | Consular time (Item 75) plus expenses. |
| (d) Supervising telephone depositions (per hour or part thereof over the first hour) | Consular time (Item 75) plus expenses. |
| (e) Providing seal and certification of depositions | $415. |
| 53. Exemptions: Deposition or executing commissions to take testimony. Fees (Item 52) will not be charged when the service is performed: | |
| (a) At the direct request of any Federal Government agency, any state or local government, the District of Columbia, or any of the territories or possessions of the United States (unless significant time required and/or expenses would be incurred) | NO FEE. |
| (b) Executing commissions to take testimony in connection with foreign documents for use in criminal cases when the commission is accompanied by an order of Federal court on behalf of an indigent party | NO FEE. |
| (Items 54 through 60 vacant.) | |
| 61. Shipping and Seaman’s services: Including but not limited to recording a bill of sale of a vessel purchased abroad, renewal of a marine radio license, and issuance of certificate of American ownership | Consular time (Item 75) plus expenses. |
| (Items 62 through 70 vacant.) | |
| 71. Non-emergency telephone calls | $10 plus long distance charge. |
| 72. Setting up and maintaining a trust account: For 1 year or less to transfer funds to or for the benefit of a U.S. citizen in need in a foreign country | $30. |
| 73. Transportation charges incurred in the performance of fee and no-fee services when appropriate and necessary | Expenses incurred. |
| 74. [Reserved] | |
| 75. Consular Time Charges: As required by this schedule and for fee services performed away from the office or during after-duty hours (per hour or part thereof/per consular officer) | $135 |
| 76. Photocopies (per page) | $1. |
| (Items 77 through 80 vacant.) | |
§ 22.2 Requests for services in the United States.
(a) Requests for records. Requests by the file subject or the individual’s authorized agent for services involving U.S. passport applications and related records, including consular birth, marriage and death records and authentication of other passport file documents, as well as records of births, marriages and deaths within the former Canal Zone of Panama recorded and maintained by the Canal Zone Government from 1904 to September 30, 1979, shall be addressed to Passport Services, Correspondence Branch, Department of State, Washington, D.C. 20524. Requests for consular birth records should specify whether a Consular Report of Birth (Form FS 240, or long form) or Certification of Birth (Form DS 1350, or short form) is desired. Advance remittance of the exact fee is required for each service.
(b) Authentication services. Requests for Department of State authentication of documents other than passport file documents must be accompanied by remittance of the exact total fee chargeable and addressed to the Authentication Officer, Department of State, Washington, DC 20520.
§ 22.3 Remittances in the United States.
(a) Type of remittance. Remittances shall be in the form of: (1) Check or bank draft drawn on a bank in the United States; (2) money order – postal, international or bank; or (3) U.S. currency. Remittances shall be made payable to the order of the Department of State. The Department will assume no responsibility for cash which is lost in the mail.
(b) Exact payment of fees. Fees must be paid in full prior to issuance of requested documents. If uncertainty as to the existence of a record or as to the number of sheets to be copied precludes remitting the exact fee chargeable with the request, the Department of State will inform the interested party of the exact amount required.
§ 22.4 Requests for services, Foreign Service.
Officers of the Foreign Service shall charge for official services performed abroad at the rates prescribed in this schedule, in coin of the United States or at its representative value in exchange (22 U.S.C. 1202). For definition of representative value in exchange, see § 23.4 of this chapter. No fees named in this schedule shall be charged or collected for the official services to American vessels and seamen (22 U.S.C. 1186). The term “American vessels” is defined to exclude, for the purposes of this schedule, undocumented American vessels and the fees prescribed herein shall be charged and collected for such undocumented vessels. However, the fees prescribed herein shall not be charged or collected for American public vessels, which includes any vessel owned or operated by a U.S. Government department or agency and engaged exclusively in official business on a non-commercial basis. This schedule of fees shall be kept posted in a conspicuous place in each Foreign Service consular office, subject to the examination by all persons interested therein (22 U.S.C. 1197).
§ 22.5 Remittances to Foreign Service posts.
Remittances to Foreign Service posts from persons in the United States in payment of offical fees and charges or for the purpose of establishing deposits in advance of rendition of services shall be in a form acceptable to the post, drawn payable to the American Embassy (name of city), American Consulate General (name of city) or American Consulate (name of city), as the case may be. This will permit cashing of negotiable instruments for deposit in the Treasury when not negotiated locally. See § 23.2 of this chapter.
(a) Time at which fees become payable. Fees are due and payble prior to issue or delivery to the interested party of a signed document, a copy of a record, or other paper representative of a service performed.
(b) Receipt for fees; register of services. Every officer of the Foreign Service responsible for the performance of services as enumerated in the Schedule of Fees for Consular Services, Department of State and Foreign Service (§ 22.1), shall give receipts for fees collected for the official services rendered, specifying the nature of the service and numbered to correspond with entries in a register maintained for the purpose (22 U.S.C. 1192, 1193, and 1194). The register serves as a record of official acts performed by officers of the Foreign Service in a governmental or notarial capacity, corresponding in this regard with the record which notaries are usually expected or required to keep of their official acts. See § 92.2 of this chapter.
(c) Deposits to guarantee payment of fees or incidental costs. When the amount of any fee is determinable only after initiation of the performance of a service, or if incidental costs are involved, the total fee and incidental costs shall be carefully estimated and an advance deposit required, subject to refund of any unused balance to the person making the deposit.
§ 22.6 Refund of fees.
(a) Fees which have been collected for deposit in the Treasury are refundable:
(1) As specifically authorized by law (See 22 U.S.C. 214a concerning passport fees erroneously charged persons excused from payment and 46 U.S.C. 8 concerning fees improperly imposed on vessels and seamen);
(2) When the principal officer at the consular post where the fee was collected (or the officer in charge of the consular section at a combined diplomatic/consular post) finds upon review of the facts that the collection was erroneous under applicable law; and
(3) Where determination is made by the Department of State with a view to payment of a refund in the United States in cases which it is impracticable to have the facts reviewed and refund effected by and at the direction of the responsible consular office. See § 13.1 of this chapter concerning refunds of fees improperly exacted by consular officers who have neglected to return the same.
(b) Refunds of $5.00 or less will not be paid to the remitter unless a claim is specifically filed at the time of payment for the excess amount. An automatic refund on overpayments due to misinformation or mistakes on the part of the Department of State will be made.
§ 22.7 Collection and return of fees.
No fees other than those prescribed in the Schedule of Fees, § 22.1, or by or pursuant to an act of Congress, shall be charged or collected by officers of the Foreign Service for official services performed abroad (22 U.S.C. 1201). All fees received by any officer of the Foreign Service for services rendered in connection with the duties of office or as a consular officer shall be accounted for and paid into the Treasury of the United States (22 U.S.C. 99 and 812). For receipt, registry, and numbering provisions, see § 22.5(b). Collections for transportation and other expenses necessary for performance of services or for Interested Party toll telephone calls shall be refunded to post allotment accounts and made available for meeting such expenses.
PART 23 – FINANCE AND ACCOUNTING
§ 23.1 Remittances made payable to the Department of State.
Except as otherwise specified in this title, remittances of moneys shall be drawn payable to the Department of State and sent to the Department for action and deposit. (See §§ 21.2, 22.2, and 51.40 of this chapter.)
§ 23.2 Endorsing remittances for deposit in the Treasury.
The Office of Finance – Cashier Unit, the Authentication Office, the Passport Office or Passport Agency, American Embassy, American Legation, American consular office, or other office or unit of the Department of State authorized and required to deposit funds in the Treasury of the United States, is hereby authorized to endorse, or to have endorsed, to the order of the Treasurer of the United States by appropriate stamp, checks, drafts, money orders, or other forms of remittance, regardless of how drawn, which are for payment to the Department of State for deposit in the Treasury of the United States, including those payable to the Secretary of State.
§ 23.3 Refunds.
(a) Rectifications and readjustments. See § 22.6 of this chapter for outline of circumstances under which fees which have been collected for deposit in the Treasury may be refunded.
(b) Refund of wrongful exactions. See § 13.1 of this chapter concerning recovery from consular officers of amounts wrongfully exacted and withheld by them.
§ 23.4 Representative value in exchange.
Representative value in exchange for the collection of a fee means foreign currency equivalent to the prescribed United States dollar fee at the current rate of exchange at the time and place of payment of the fee. “Current rate” of exchange for this purpose means the bank selling rate at which the foreign bank will sell the number of United States dollars required to liquidate the obligation to the United States for the Foreign Service fee.
§ 23.5 Claims for settlement by Department of State or General Accounting Office.
Claims for settlement by the Department of State or by the General Accounting Office shall be submitted to the Department in duplicate over the handwritten signature, together with the post office address of the claimant, and with appropriate recommendations of the officer of the Foreign Service, for items such as:
(a) Refunds of amounts representing payroll deductions such as for any retirement and disability fund;
(b) Amounts due deceased, incompetent, or insolvent persons including payees or bona fide holders of unpaid Government checks;
(c) Amounts claimed from the Government when questions of fact affect either the amount payable or the terms of payment, when for any reason settlement cannot or should not be affected at the Foreign Service office; and
(d) Amounts of checks, owned by living payees or bona fide holders, which have been covered into outstanding liabilities. The Foreign Service post or the Department of State shall be consulted before preparing the claim to ascertain whether any special form is required to be used. Claims for unpaid compensation of deceased alien employees shall be forwarded to the respective Foreign Service post.
SUBCHAPTER D – CLAIMS AND STOLEN PROPERTY
PART 33 – FISHERMEN’S PROTECTIVE ACT GUARANTY FUND PROCEDURES UNDER SECTION 7
§ 33.1 Purpose.
These rules clarify procedures for the administration of Section 7 of the Fishermen’s Protective Act of 1967. Section 7 of the Act establishes a Fishermen’s Guaranty Fund to reimburse owners and charterers of United States commercial fishing vessels for certain losses and costs caused by the seizure and detention of their vessels by foreign countries under certain claims to jurisdiction not recognized by the United States.
§ 33.2 Definitions.
For the purpose of this part, the following terms mean:
Act. The Fishermen’s Protective Act of 1967 (22 U.S.C. 1971 et seq.).
Capital equipment. Equipment or other property which may be depreciated for income tax purposes.
Depreciated replacement costs. The present replacement cost of capital equipment after being depreciated on a straight line basis over the equipment’s depreciable life, which is standardized at ten years.
Downtime. The time a vessel normally would be in port or transiting to and from the fishing grounds.
Expendable items. Any property, excluding that which may be depreciated for income tax purposes, which is maintained in inventory or expensed for tax purposes.
Fund. The Fishermen’s Guaranty Fund established in the U.S. Treasury under section 7(c) of the Act (22 U.S.C. 1977(c)).
Market value. The price property would command in a market, at the time of property loss, assuming a seller willing to sell and buyer willing to buy.
Other direct charge. Any levy which is imposed in addition to, or in lieu of any fine, license fee, registration fee, or other charge.
Owner. The owner or charterer of a commercial fishing vessel.
Secretary. The Secretary of State or the designee of the Secretary of State.
Seizure. Arrest of a fishing vessel by a foreign country for allegedly illegal fishing.
U.S. fishing vessel. Any private vessel documented or certified under the laws of the United States as a commercial fishing vessel.
§ 33.3 Eligibility.
Any owner or charterer of a U.S. fishing vessel is eligible to apply for an agreement with the Secretary providing for a guarantee in accordance with section 7 of the Act.
§ 33.4 Applications.
(a) Applicant. An eligible applicant for a guaranty agreement must:
(1) Own or charter a U.S. fishing vessel; and
(2) Submit with his application the fee specified in § 33.6 below.
(b) Application forms. Application forms may be obtained by contacting the Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, Room 7820, U.S. Department of State, Washington, DC 20520-7818; Telephone 202-647-3941.
(c) Where to apply. Applications must be submitted to the Director, Office of marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, Room 7820, U.S. Department of State, Washington, DC 20520-7818.
(d) Application approval. Application approval will be by execution of the guaranty agreement by the Secretary or by the Secretary’s designee.
§ 33.5 Guaranty agreements.
(a) Period in effect. Agreements are effective for a Fiscal Year beginning October 1 and ending on the next September 30. Applications submitted after October 1 are effective from the date the application and fee are mailed (determined by the postmark) through September 30.
(b) Guaranty agreement transfer. A guaranty agreement may, with the Secretary’s prior consent, be transferred when a vessel which is the subject of a guaranty agreement is transferred to a new owner if the transfer occurs during the agreement period.
(c) Guaranty agreement renewal. A guaranty agreement may be renewed for the next agreement year by submitting an application form with the appropriate fee for the next year in accordance with the Secretary’s annually published requirements regarding fees. Renewals are subject to the Secretary’s approval.
(d) Provisions of the agreement. The agreement will provide for reimbursement for certain losses caused by foreign countries’ seizure and detention of U.S. fishing vessels on the basis of claims to jurisdiction which are not recognized by the United States. Recent amendments to the Magnuson Fishery Conservation and Management Act (16 U.S.C. (1801 et seq.) assert U.S. jurisdiction over highly migratory species of tuna in the U.S. exclusive economic zone (EEZ). Accordingly, as a matter of international law, the United States now recognizes other coastal states’ claims to jurisdiction over tuna in their EEZ’S. This change directly affect certification of claims filed under the Fishermen’s Protective Act. Participants are advised that this means that the Department will no longer certify for payment claims resulting from the seizure of a U.S. vessel while such vessel was fishing for tuna within the exclusive economic zone of another country in violation of that country’s laws. Claims for detentions or seizures based on other claims to jurisdiction not recognized by the United States, or on the basis of claims to jurisdiction recognized by the United States but exercised in a manner inconsistent with international law as recognized by the United states, may still be certified by the Department.
§ 33.6 Fees.
(a) General. Fees provide for administrative costs and payment of claims. Fees are set annually on the basis of past and anticipated claim experience. The annual agreement year for which fees are payable starts on October 1 and ends on September 30 of the following year.
(b) Amount and payment. The amount of each annual fee or adjusted fee will be established by the Office Director of the Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, by publication of a notice in the
(c) Adjustment and refund. Fees may be adjusted at any time to reflect actual seizure and detention experience for which claims are anticipated. Failure to submit adjusted fees will result in agreement termination as of the date the adjusted fee is payable. No fees will be refunded after an agreement is executed by the Secretary.
(d) Disposition. All fees will be deposited in the Fishermen’s Guaranty Fund. They will remain available without fiscal year limitation to carry out section 7 of the Act. Claims will be paid from fees and from appropriated funds, if any. Fees not required to pay administrative costs or claims may be invested in U.S. obligations. All earnings will be credited to the Fishermen’s Guaranty Fund.
§ 33.7 Conditions for claims.
(a) Unless there is clear and convincing credible evidence that the seizure did not meet the requirements of the Act, payment of claims will be made when:
(1) A covered vessel is seized by a foreign country under conditions specified in the Act and the guaranty agreement; and
(2) The incident occurred during the period the guaranty agreement was in force for the vessel involved.
(b) Payments will be made to the owner for:
(1) All actual costs (except those covered by section 3 of the Act or reimbursable from some other source) incurred by the owner during the seizure or detention period as a direct result thereof, including:
(i) Damage to, or destruction of, the vessel or its equipment; or
(ii) Loss or confiscation of the vessel or its equipment; and
(iii) Dockage fees or utilities;
(2) The market value of fish or shellfish caught before seizure of the vessel and confiscated or spoiled during the period of detention; and
(3) Up to 50 percent of the vessel’s gross income lost as a direct result of the seizure and detention.
(c) The exceptions are that no payment will be made from the Fund for a seizure which is:
(1) Covered by any other provision of law (for example, fines, license fees, registration fees, or other direct charges payable under section 3 of the Act);
(2) Made by a country at war with the United States;
(3) In accordance with any applicable convention or treaty, if that treaty or convention was made with the advice and consent of the Senate and was in force and effect for the United States and the seizing country at the time of the seizure;
(4) Which occurs before the guaranty agreement’s effective date or after its termination;
(5) For which other sources of alternative reimbursement have not first been fully pursued (for example, the insurance coverage required by the agreement and valid claims under any law);
(6) For which material requirements of the guaranty agreement, the Act, or the program regulations have not been fully fulfilled; or
(7) In the view of the Department of State occurred because the seized vessel was undermining or diminishing the effectiveness of international conservation and management measures recognized by the United States, or otherwise contributing to stock conservation problems pending the establishment of such measures.
§ 33.8 Claim procedures.
(a) Where and when to apply. Claims must be submitted to the Office Director, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, Room 7820, U.S. Department of State, Washington, DC 20520-7818. Claims must be submitted within ninety (90) days after the vessel’s release. Requests for extension of the filing deadline must be in writing and approved by the Office Director, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs.
(b) Contents of claim. All material allegations of a claim must be supported by documentary evidence. Foreign language documents must be accompanied by an authenticated English translation. Claims must include:
(1) The captain’s sworn statement about the exact location and activity of the vessel when seized;
(2) Certified copies of charges, hearings, and findings by the government seizing the vessel;
(3) A detailed computation of all actual costs directly resulting from the seizure and detention, supported by receipts, affidavits, or other documentation acceptable to the Office Director, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs;
(4) A detailed computation of lost income claimed, including:
(i) The date and time seized and released;
(ii) The number of miles and running time from the point of seizure to the point of detention;
(iii) The total fishing time lost (explain in detail if lost fishing time claimed is any greater than the elapsed time from seizure to the time required after release to return to the point of seizure);
(iv) The tonnage of catch on board at the time of seizure;
(v) The vessel’s average catch-per-day’s fishing for the three calendar years preceding the seizure;
(vi) The vessel’s average downtime between fishing trips for the three calendar years preceding the seizure; and
(vii) The price-per-pound for the catch on the first day the vessel returns to port after the seizure and detention unless there is a pre-negotiated price-per-pound with a processor, in which case the pre-negotiated price must be documented; and
(5) Documentation for confiscated, damaged, destroyed, or stolen equipment, including:
(i) The date and cost of acquisition supported by invoices or other acceptable proof of ownership; and
(ii) An estimate from a commercial source of the replacement or repair cost.
(c) Burden of proof. The claimant has the burden of proving all aspects of the claim, except in cases of dispute over the facts of the seizure where the claimant shall have the presumption that the seizure was eligible unless there is clear and convincing credible evidence that the seizure did not meet the eligibility standards of the Act.
§ 33.9 Amount of award.
(a) Lost fishing time. Compensation is limited to 50 percent of the gross income lost as a direct result of the seizure and detention, based on the value of the average catch-per-day’s fishing during the three most recent calendar years immediately preceding the seizure as determined by the Secretary, based on catch rates on comparable vessels in comparable fisheries. The compensable period for cases of seizure and detention not resulting in vessels confiscation is limited to the elapsed time from seizure to the time after release when the vessel could reasonably be expected to return to the point of seizure. The compensable period in cases where the vessel is confiscated is limited to the elapsed time from seizure through the date of confiscation, plus an additional period to purchase a replacement vessel and return to the point of seizure. In no case can the additional period exceed 120 days.
(1) Compensation for confiscation of vessels, where no buy-back has occurred, will be based on market value which will be determined by averaging estimates of market value obtained from as many vessel surveyors or brokers as the Secretary deems practicable;
(2) Compensation for capital equipment other than vessel, will be based on depreciated replacement cost;
(3) Compensation for expendable items and crew’s belongings will be 50 percent of their replacement costs; and
(4) Compensation for confiscated catch will be for full value, based on the price-per-pound.
(b) Fuel expense. Compensation for fuel expenses will be based on the purchase price, the time required to run to and from the fishing grounds, the detention time in port, and the documented fuel consumption of the vessel.
(c) Stolen or confiscated property. If the claimant was required to buy back confiscated property from the foreign country, the claimant may apply for reimbursement of such charges under section 3 of the Act. Any other property confiscated is reimbursable from this Guaranty Fund. Confiscated property is divided into the following categories:
(1) Compensation for confiscation of vessels, where no buy-back has occurred, will be based on market value which will be determined by averaging estimates of market value obtained from as many vessel surveyors or brokers as the Secretary deems practicable;
(2) Compensation for capital equipment other than a vessel, will be based on depreciated replacement cost;
(3) Compensation for expendable items and crew’s belongings will be 50 percent of their replacement cost; and
(4) Compensation for confiscated catch will be for full value, based on the price-per-pound.
(d) Insurance proceeds. No payments will be made from the Fund for losses covered by any policy of insurance or other provisions of law.
(e) [Reserved]
(f) Appeals. All determinations under this section are final and are not subject to arbitration or appeal.
§ 33.10 Payments.
The Office Director, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs, will pay the claimant the amount calculated under § 33.9. Payment will be made as promptly as practicable, but may be delayed pending the appropriation of sufficient funds, should fee collections not be adequate to sustain the operation of the Fund. The Director shall notify the claimant of the amount approved for payment as promptly as practicable and the same shall thereafter constitute a valid, but non-interest bearing obligation of the Government. Delays in payments are not a direct consequence of seizure and detention and cannot therefore be construed as increasing the compensable period for lost fishing time. If there is a question about distribution of the proceeds of the claim, the Director may request proof of interest from all parties, and will settle this issue.
§ 33.11 Records.
The Office Director, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs will have the right to inspect claimants’ books and records as a precondition to approving claims. All claims must contain written authorization of the guaranteed party for any international, federal, state, or local governmental Agencies to provide the Office Director, Office of Marine Conservation, Bureau of Oceans and International Environmental and Scientific Affairs any data or information pertinent to a claim.
§ 33.12 Penalties.
Persons who willfully make any false or misleading statement or representation to obtain compensation from the Fund are subject to criminal prosecution under 22 U.S.C. 1980(g). This provides penalties up to $25,000 or imprisonment for up to one year, or both. Any evidence of criminal conduct will be promptly forwarded to the United States Department of Justice for action. Additionally, misrepresentation, concealment, or fraud, or acts intentionally designed to result in seizure, may void the guaranty agreement.
PART 34 – DEBT COLLECTION
Subpart A – General Provisions
§ 34.1 Purpose.
These regulations prescribe the procedures to be used by the United States Department of State (STATE) in the collection of debts owed to STATE and to the United States.
§ 34.2 Scope.
(a) Except as set forth in this part or otherwise provided by law, STATE will conduct administrative actions to collect debts (including offset, compromise, suspension, termination, disclosure and referral) in accordance with the Federal Claims Collection Standards (FCCS) of the Department of the Treasury and Department of Justice, 31 CFR parts 900-904.
(b) This part is not applicable to STATE claims against another Federal agency, any foreign country or any political subdivision thereof, or any public international organization.
§ 34.3 Exceptions.
(a) Debts arising from the audit of transportation accounts pursuant to 31 U.S.C. 3726 shall be determined, collected, compromised, terminated, or settled in accordance with the regulations published at 41 CFR part 102-118.
(b) Debts arising out of acquisition contracts subject to the Federal Acquisition Regulation (FAR) shall be determined, collected, compromised, terminated, or settled in accordance with those regulations (see 48 CFR part 32).
(c) Debts based in whole or in part on conduct in violation of the antitrust laws, or in regard to which there is an indication of fraud, presentation of a false claim, or misrepresentation on the part of the debtor or any other party having an interest in the claim, shall be referred to the Department of Justice for compromise, suspension, or termination of collection action.
(d) Tax debts are excluded from the coverage of this regulation.
§ 34.4 Definitions.
For purposes of the section:
(a) Administrative offset means withholding funds payable by the United States to, or held by the United States for, a person to satisfy a debt owed by the person to the United States.
(b) Administrative wage garnishment means the process by which a Federal agency orders a non-Federal employer to withhold amounts from a debtor’s wages to satisfy a debt owed to the United States.
(c) Compromise means that the creditor agency accepts less than the full amount of an outstanding debt in full satisfaction of the entire amount of the debt.
(d) Creditor agency means the Federal agency to which a debt is owed.
(e) Debt or claim means an amount of money which has been determined to be owed to the United States from any person. A debtor’s liability arising from a particular contract or transaction shall be considered a single claim for purposes of the monetary ceilings of the FCCS.
(f) Debtor means a person who owes the Federal government money.
(g) Delinquent debt means a debt that has not been paid by the date specified in STATE’s written notification or applicable contractual agreement, unless other satisfactory arrangements have been made by that date, or that has not been paid in accordance with a payment agreement with STATE.
(h) Discharge means the release of a debtor from personal liability for a debt. Further collection action is prohibited.
(i) Disposable pay means the amount that remains from an employee’s current basic pay, special pay, incentive pay, retired pay, retainer pay, or in the case of an employee not entitled to basic pay, other authorized pay remaining after required deductions for Federal, State and local income taxes; Social Security taxes, including Medicare taxes; Federal retirement programs; normal premiums for life and health insurance benefits and such other deductions that are required by law to be withheld, excluding garnishments.
(j) FCCS means the Federal Claims Collection Standards published jointly by the Departments of the Treasury and Justice and codified at 31 CFR parts 900-904.
(k) Person means an individual, corporation, partnership, association, organization, State or local government, or any other type of entity other than a Federal agency, Foreign Government, or public international organization.
(l) Salary offset means the withholding of amounts from the current pay account of a Federal employee to satisfy a debt owed by that employee to the United States.
(m) Suspension means the temporary cessation of active debt collection pending the occurrence of an anticipated event.
(n) Termination means the cessation of all active debt collection action for the foreseeable future.
(o) Waiver means a decision to forgo collection of a debt owed to the United States, as provided for by a specific statute and according to the standards set out under that statute.
§ 34.5 Other procedures or actions.
(a) Nothing contained in this regulation is intended to require STATE to duplicate administrative proceedings required by contract or other laws or regulations.
(b) Nothing in this regulation is intended to preclude utilization of informal administrative actions or remedies which may be available.
(c) Nothing contained in this regulation is intended to deter STATE from demanding the return of specific property or from demanding the return of the property or the payment of its value.
(d) The failure of STATE to comply with any provision in this regulation shall not serve as defense to the debt.
§ 34.6 Interest, penalties, and administrative costs.
Except as otherwise provided by statute, contract or excluded in accordance with the FCCS, STATE will assess:
(a) Interest on delinquent debts in accordance with 31 CFR 901.9.
(b) Penalties at the rate of 6 percent a year or such other rate as authorized by law on any portion of a debt that is delinquent for more than 90 days.
(c) Administrative costs to cover the costs of processing and calculating delinquent debts.
(d) Late payment charges under paragraphs (a) and (b) of this section shall be computed from the date of delinquency.
(e) When a debt is paid in partial or installment payments, amounts received shall be applied first to outstanding penalty and administrative cost charges, second to accrued interest, and then to outstanding principal.
(f) STATE shall consider waiver of interest, penalties and/or administrative costs in accordance with the FCCS, 31 CFR 901.9(g).
§ 34.7 Collection in installments.
Whenever feasible, and except as required otherwise by law, debts owed to the United States, together with interest, penalties, and administrative costs as required by this regulation, should be collected in one lump sum. This is true whether the debt is being collected under administrative offset, including salary offset, or by another method, including voluntary payment. However, if the debtor is financially unable to pay the indebtedness in one lump sum, payment may be accepted in regular installments. If STATE agrees to accept payment in installments, it may require a legally enforceable written agreement from the debtor that specifies all of the terms of the arrangement and which contains a provision accelerating the debt in the event the debtor defaults. The size and frequency of the payments should bear a reasonable relation to the size of the debt and ability of the debtor to pay. If possible, the installment payments should be sufficient in size and frequency to liquidate the Government’s claim within 3 years.
Subpart B – Collection Actions
§ 34.8 Notice and demand for payment.
(a) STATE shall promptly hand deliver, send by first class mail to the debtor’s most current address in the records of STATE, or, in appropriate circumstances, send by electronic mail to the debtor’s most current address in the records of STATE, at least one written notice. Written demand under this subpart may be preceded by other appropriate actions under this part and or the FCCS, including but not limited to actions taken under the procedures applicable to administrative offset, including salary offset.
(b) The written notice shall inform the debtor of:
(1) The basis of the debt;
(2) The amount of the debt;
(3) The date by which payment should be made to avoid the imposition of interest, penalties and administrative costs, and the enforced collection actions described in paragraph (b)(7) of this section;
(4) The applicable standards for imposing of interest, penalties and administrative costs to delinquent debts;
(5) STATE’s readiness to discuss alternative payment arrangements and how the debtor may offer to enter into a written agreement to repay the debt under terms acceptable to STATE;
(6) The name, address and telephone number of a contact person or office within STATE;
(7) STATE’s intention to enforce collection by taking one or more of the following actions if the debtor fails to pay or otherwise resolve the debt:
(i) Offset from Federal payments otherwise due to the debtor, including income tax refunds, salary, certain benefit payments, retirement, vendor payments, travel reimbursement and advances, and other Federal payments due from STATE, other Federal agencies, or through centralized disbursing from the Department of the Treasury;
(ii) Referral to private collection agency
(iii) Report to credit bureaus
(iv) Administrative Wage Garnishment
(v) Litigation by the Department of Justice
(vi) Referral to the Financial Management Service of the Department of the Treasury for collection
(vii) Liquidation of collateral
(viii) Other actions as permitted by the FCCS and applicable law;
(8) The debtor’s right to inspect and copy records related to the debt;
(9) The debtor’s right to an internal review of STATE’s determination that the debtor owes a debt or the amount of the debt;
(10) The debtor’s right, if any, to request waiver of collection of certain debts, as applicable (see § 34.18);
(11) Requirement that the debtor advise STATE of any bankruptcy proceeding of the debtor; and
(12) Provision for refund of amounts collected if later decision finds that the amount of the debt is not owed or is waived.
(c) Exceptions to notice requirements. STATE may omit from a notice to a debtor one or more of the provisions contained in paragraphs (b)(7) through (b)(12) of this section if STATE determines that any provision is not legally required given the collection remedies to be applied to a particular debt, or which have already been provided by prior notice, applicable agreement, or contract.
§ 34.9 Requests for internal administrative review.
(a) For all collection methods for debts owed to STATE, the debtor may request a review within State of the existence or the amount of the debt. For offset of current Federal salary under 5 U.S.C. 5514 for certain debts, debtors may also request an outside hearing. See subpart C of this part. This subpart rather than subpart C applies to collections by salary offset for debts arising under 5 U.S.C. 5705 (travel advances), 5 U.S.C. 4108 (training expenses), and other statutes specifically providing for collection by salary offset.
(b) A debtor requesting an internal review shall do so in writing to the contact office by the payment due date stated within the initial notice sent under 34.8(b) or other applicable provision. The debtor’s written request shall state the basis for the dispute and include any relevant documentation in support.
(1) STATE will provide for an internal review of the debt by an appropriate official. The review may include examination of documents, internal discussions with relevant officials and discussion by letter or orally with the debtor, at STATE’s discretion. An oral hearing may be provided when the matter cannot be decided on the documentary record because it involves issues of credibility or veracity. Unless otherwise required by law, such oral hearing shall not be a formal evidentiary hearing. If an oral hearing is appropriate, the time and location of the hearing shall be established by STATE. An oral hearing may be conducted, at the debtor’s option, either in-person or by telephone conference. All travel expenses incurred by the debtor in connection with an in-person hearing will be borne by the debtor. All telephonic charges incurred during the hearing will be the responsibility of STATE. During the period of review, STATE may suspend collection activity, including the accrual of interest and penalties, on any disputed portion of the debt if STATE determines that suspension is in the Department’s best interest or would serve equity and good conscience.
(2) If after review STATE either sustains or amends its determination, it shall notify the debtor of its intent to collect the sustained or amended debt. If previously suspended, collection actions will be re-instituted unless payment of the sustained or amended amount is received or the debtor has made a proposal for a payment plan to which STATE agrees, by the date specified in the notification of STATE’s decision.
§ 34.10 Collection methods.
Upon completion of notice and provision of all due process rights as listed in 34.8(b) of this section and upon final determination of the existence and amount of a debt, unless other acceptable payment arrangements have been made or procedures under a specific statute apply, STATE shall collect the debt by one or more of the following methods:
(a) Administrative offset. (1) Payments otherwise due the debtor from the United States shall be offset from the debt in accordance with 31 CFR 901.3. These may be funds under the control of the Department of State or other Federal agencies. Collection may be made through centralized offset by the Financial Management Service (“FMS”) of the Department of the Treasury.
(2) Such payments include but are not limited to vendor payments, salary, retirement, lump sum payments due upon Federal employment separation, travel reimbursements, tax refunds, loans or other assistance. For offset of Federal salary payments under 5 U.S.C. 5514 for certain types of debt see subpart C of this part.
(3) Administrative offset under this subsection does not apply to debts specified in the FCCS, 31 CFR 901.3(a)(2).
(4) Before administrative offset is instituted by another Federal agency or the FMS, STATE shall certify in writing to that entity that the debt is past due and legally enforceable and that STATE has complied with all applicable due process and other requirements as described in this part and other Federal law and regulations.
(5) Administrative offset of anticipated or future benefit payments under the Civil Service Retirement and Disability Fund will be requested by STATE pursuant to 5 CFR 831.1801-1808.
(6) Expedited offset. STATE may effect an offset against a debtor prior to sending a notice to the debtor as described in § 34.8, when:
(i) The offset is in the nature of a recoupment,
(ii) Offset is executed pursuant to procedures set out in the Contracts Disputes Act,
(iii) Previous notice and opportunity for review have been given, or
(iv) There is insufficient time before payment would be made to the debtor/payee to allow prior notice and an opportunity for review. In such case, STATE shall give the debtor notice and an opportunity for review as soon as practicable and shall promptly refund any money ultimately found not to have been owed to the Government.
(b) Referral to private collection agency. STATE may contract for collection services to recover delinquent debts, or transfer a delinquent debt to FMS for private collection action, pursuant to 31 U.S.C. 3718, 22 U.S.C. 2716 and the FCCS, 31 CFR 901.5, as applicable. STATE will not use a collection agency to collect a debt owed by a currently employed or retired Federal employee, if collection by salary or annuity offset is available.
(c) Disclosure to consumer reporting agencies. STATE may disclose delinquent debts to consumer reporting agencies and other automated databases in accordance with 31 U.S.C. 3711(e) and the FCCS, 31 CFR 901.4, and in compliance with the Bankruptcy Code and the Privacy Act 5 U.S.C. 552a.
(d) Liquidation of Collateral, if applicable, in accordance with the FCCS, 31 CFR 901.7.
(e) Suspension or revocation of eligibility for loans and loan guaranties, licenses, permits, or privileges in accordance with the FCCS, 31 CFR 901.6.
(f) Litigation. Debts may be referred to the Department of Justice for litigation for collection in accordance with the standards set forth in the FCCS, 31 CFR part 904.
(g) Transfer to FMS. Debts delinquent more than 180 days shall be transferred to the Financial Management Service of the Department of the Treasury for collection by all available means. Debts delinquent less that 180 days may also be so transferred.
(h) Administrative wage garnishment. STATE may collect debts from a non-Federal employee’s wages by means of administrative wage garnishment in accordance with the requirements of 31 U.S.C. 3720D and 31 CFR 285.11. All parts of 31 CFR 285.11 are incorporated by reference into these regulations, including the hearing procedures described in 31 CFR 285.11(f).
(i) Salary offset. See subpart C of this part.
Subpart C – Salary Offset
§ 34.11 Scope.
(a) This subpart sets forth STATE’s procedures for the collection of a Federal employee’s current pay by salary offset to satisfy certain debts owed to the United States.
(b) This subpart applies to:
(1) Current employees of STATE and other agencies who owe debts to STATE;
(2) Current employees of STATE who owe debts to other agencies.
(c) This subpart does not apply to
(1) Offset of a separating employee’s final payments or Foreign Service annuity payments which are covered under administrative offset (See § 34.10(a)),
(2) Debts or claims arising under the Internal Revenue Code of 1954 (26 U.S.C. 1 et seq.); the Social Security Act (42 U.S.C. 301 et seq.); the tariff laws of the United States.
(3) Any adjustment to pay arising out of an employee’s election of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay, if the amount to be recovered was accumulated over 4 pay periods or less.
(4) Any 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 4 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.
(5) 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.
(d) These regulations do not preclude an employee from requesting waiver of the debt, if waiver is available under subpart D of this part or by other regulation or statute.
(e) Nothing in these regulations precludes the compromise, suspension or termination of collection actions where appropriate under subpart D of this part or other regulations or statutes.
§ 34.12 Coordinating offset with another Federal agency.
(a) When STATE is owed a debt by an employee of another agency, the other agency shall not initiate the requested offset until STATE provides the agency with a written certification that the debtor owes STATE a debt (including the amount and basis of the debt and the due date of payment) and that STATE has complied with these regulations.
(b) When another agency is owed the debt, STATE may use salary offset against one of its employees who is indebted to another agency, if requested to do so by that agency. Such request must be accompanied by a certification that the person owes the debt (including the amount and basis of the debt and the due date of payment) and that the agency has complied with its regulations as required by 5 U.S.C. 5514 and 5 CFR part 550, subpart K.
§ 34.13 Notice requirements before offset.
Except as provided in § 34.16, salary offset deductions will not be made unless STATE first provides the employee with a written notice that he/she owes a debt to the Federal Government at least 30 calendar days before salary offset is to be initiated. When STATE is the creditor agency, this notice of intent to offset an employee’s salary shall be hand-delivered or sent by electronic mail to the employee’s STATE issued electronic mail address and will state:
(a) That STATE has reviewed the records relating to the debt and has determined that the debt is owed, its origin and nature, and the amount due;
(b) The intention of STATE to collect the debt by means of deduction from the employee’s current pay until the debt and any and all accumulated interest, penalties and administrative costs are paid in full;
(c) The amount, frequency, approximate beginning date, and duration of the intended deductions;
(d) The requirement to assess and collect interest, penalties, and administrative costs in accordance with § 34.6, unless waived in accordance with § 34.6(f);
(e) The employee’s right to inspect and copy any STATE records relating to the debt, or, if the employee or their representative cannot personally inspect the records, to request and receive a copy of such records;
(f) The opportunity to voluntarily repay the debt or to enter into a written agreement (under terms agreeable to STATE) to establish a schedule for repayment of the debt in lieu of offset;
(g) Right to an internal review or outside hearing. (1) An internal review under § 34.9 may be requested in cases of collections by salary offset for debts arising under 5 U.S.C. 5705 (travel advances), 5 U.S.C. 4108 (training expenses), and other statutes specifically providing for collection by salary offset.
(2) For all other debts, an internal review or an outside hearing conducted by an official not under the supervision or control of STATE may be requested with respect to the existence of the debt, the amount of the debt, or the repayment schedule (i.e., the percentage of disposable pay to be deducted each pay period);
(h) That the timely filing of a request for an outside hearing or internal review within 30 calendar days after the date of the notice of intent to offset will stay the commencement of collection proceedings;
(i) The method and time period for requesting an internal review or outside hearing;
(j) That a final decision on the internal review or outside hearing (if one is requested) will be issued at the earliest practical date, but not later than 60 days after the filing of the request, unless the employee requests and the outside hearing official grants a delay in the proceedings;
(k) That any knowingly false or frivolous statements, representation, or evidence may subject the employee to disciplinary procedures (5 U.S.C. Chapter 75, 5 CFR part 752 or other applicable statutes or regulations); penalties (31 U.S.C. 3729-3731 or other applicable statutes or regulations); or criminal penalties (18 U.S.C. 286, 287, 1001, and 1002 or other applicable statutes or regulations);
(l) Any other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made;
(m) That the amounts paid on the debt which are later waived or found not owed to the United States will be promptly refunded to the employee, unless there are applicable contractual or statutory provisions to the contrary; and
(n) The name and address of the STATE official to whom communications should be directed.
§ 34.14 Request for an outside hearing for certain debts.
(a) Except as provided in paragraph (d) of this section, an employee must file a request that is received by STATE not later than 30 calendar days from the date of STATE’s notice described in § 34.13 if an employee wants an outside hearing pursuant to § 34.13(g)(2) concerning:
(1) The existence or amount of the debt; or
(2) STATE’s proposed offset schedule.
(b) The request must be signed by the employee and should identify and explain with reasonable specificity and brevity the facts, evidence and witnesses which the employee believes support his or her position. If the employee objects to the percentage of disposable pay to be deducted from each check, the request should state the objection and the reasons for it.
(c) The employee must also specify whether an oral or paper hearing is requested. If an oral hearing is desired, the request should explain why the matter cannot be resolved by review of the documentary evidence alone.
(d) If the employee files a request for an outside hearing later than the required 30 calendar days as described in paragraph (a) of this section, STATE may accept the request if the employee can show that the delay was because of circumstances beyond his or her control or because of failure to receive notice of the filing deadline (unless the employee has actual notice of the filing deadline).
(e) An employee waives the right to an outside hearing and will have his or her pay offset if the employee fails to file a petition for a hearing as prescribed in paragraph (a) of this section.
§ 34.15 Outside hearings.
(a) If an employee timely files a request for an outside hearing under § 34.13(g)(2), pursuant to 5 U.S.C. 5514(a)(2), STATE shall select the time, date, and location of the hearing.
(b) Outside hearings shall be conducted by a hearing official not under the supervision or control of STATE.
(c) Procedure. (1) After the employee requests a hearing, the hearing official shall notify the employee of the form of the hearing to be provided. If the hearing will be oral, notice shall set forth the date, time and location of the hearing. If the hearing will be paper, the employee shall be notified that he or she should submit arguments in writing to the hearing official by a specified date after which the record shall be closed. This date shall give the employee reasonable time to submit documentation.
(2) Oral hearing. An employee who requests an oral hearing shall be provided an oral hearing if the hearing official determines that the matter cannot be resolved by review of documentary evidence alone (e.g., when an issue of credibility or veracity is involved). The hearing is not an adversarial adjudication, and need not take the form of an evidentiary hearing.
(3) Paper hearing. If the hearing official determines that an oral hearing is not necessary, he or she will make a decision based upon a review of the available written record.
(4) Record. The hearing official must maintain a summary record of any hearing provided by this subpart. Witnesses who provide testimony will do so under oath or affirmation.
(5) Content of decision. The written decision shall include:
(i) A statement of the facts presented to support the origin, nature, and amount of the debt;
(ii) The hearing official’s findings, analysis, and conclusions; and
(iii) The terms of any repayment schedules, or the date salary offset will commence, if applicable.
(6) Failure to appear. In the absence of good cause shown (e.g., excused illness), an employee who fails to appear at a hearing shall be deemed, for the purpose of this subpart, to admit the existence and amount of the debt as described in the notice of intent. The hearing official shall schedule a new hearing date upon the request of the creditor agency representative when good cause is shown.
(d) A hearing official’s decision is considered to be an official certification regarding the existence and amount of the debt for purposes of executing salary offset under 5 U.S.C. 5514 only. It does not supersede the finding by STATE that a debt is owed and does not affect the Government’s ability to recoup the indebtedness through alternative collection methods under § 34.10.
§ 34.16 Procedures for salary offset.
Unless otherwise provided by statute or contract, the following procedures apply to salary offset:
(a) Method. Salary offset will be made by deduction at one or more officially established pay intervals from the current pay account of the employee without his or her consent.
(b) Source. The source of salary offset is current disposable pay.
(c) Types of collection. (1) Lump sum payment. Ordinarily debts will be collected by salary offset in one lump sum if possible. However, if the amount of the debt exceeds 15 percent of disposable pay for an officially established pay interval, the collection by salary offset must be made in installment deductions.
(2) Installment deductions. (i) The size of installment deductions must bear a reasonable relation to the size of the debt and the employee’s ability to pay. If possible, the size of the deduction will be that necessary to liquidate the debt in no more than 1 year. However, the amount deducted for any period must not exceed 15 percent of the disposable pay from which the deduction is made, except as provided by other regulations or unless the employee has agreed in writing to a greater amount.
(ii) Installment payments of less than $25 per pay period will be accepted only in the most unusual circumstances.
(iii) Installment deductions will be made over a period of not greater than the anticipated period of employment.
§ 34.17 Non-waiver of rights by payments.
So long as there are no statutory or contractual provisions to the contrary, no employee payment (of all or a portion of a debt) collected under this subpart will be interpreted as a waiver of any rights that the employee may have under 5 U.S.C. 5514.
Subpart D – Collection Adjustments
§ 34.18 Waivers of indebtedness.
(a) Waivers of indebtedness may be granted only as provided for certain types of debt by specific statutes and according to the standards set out under those statutes.
(b) Authorities – (1) Debts arising out of erroneous payments of pay and allowances. 5 U.S.C. 5584 provides authority for waiving in whole or in part debts arising out of erroneous payments of pay and allowances, and travel, transportation and relocation expenses and allowances, if collection would be against equity and good conscience and not in the best interests of the United States.
(i) Waiver may not be granted if there exists in connection with the claim an indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person having an interest in obtaining a waiver.
(ii) Fault is considered to exist if in light of the circumstances the employee knew or should have known through the exercise of due diligence that an error existed but failed to take corrective action. What an employee should have known is evaluated under a reasonable person standard. Employees are, however, expected to have a general understanding of the Federal pay system applicable to them.
(iii) An employee with notice that a payment may be erroneous is expected to make provisions for eventual repayment. Financial hardship is not a basis for granting a waiver for an employee who was on notice of an erroneous payment.
(iv) If the deciding official finds no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person having an interest in obtaining a waiver of the claim, the employee is not automatically entitled to a waiver. Before a waiver can be granted, the deciding official must also determine that collection of the claim against an employee would be against equity and good conscience and not in the best interests of the United States. Factors to consider when determining if collection of a claim against an employee would be against equity and good conscience and not in the best interests of the United States include, but are not limited to:
(A) Whether collection of the claim would cause serious financial hardship to the employee from whom collection is sought.
(B) Whether, because of the erroneous payment, the employee either has relinquished a valuable right or changed positions for the worse, regardless of the employee’s financial circumstances.
(C) The time elapsed between the erroneous payment and discovery of the error and notification of the employee;
(D) Whether failure to make restitution would result in unfair gain to the employee;
(E) Whether recovery of the claim would be unconscionable under the circumstances.
(2) Debts arising out of advances in pay. 5 U.S.C. 5524a provides authority for waiving in whole or in part a debt arising out of an advance in pay if it is shown that recovery would be against equity and good conscience or against the public interest.
(i) Factors to be considered when determining if recovery of an advance payment would be against equity and good conscience or against the public interest include, but are not limited to:
(A) Death of the employee;
(B) Retirement of the employee for disability;
(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and
(D) Whether failure to repay would result in unfair gain to the employee.
(ii) [Reserved]
(3) Debts arising out of advances in situations of authorized or ordered departures. 5 U.S.C. 5522 provides authority for waiving in whole or in part a debt arising out of an advance payment of pay, allowances, and differentials provided under this section if it is shown that recovery would be against equity and good conscience or against the public interest.
(i) Factors to be considered when determining if recovery of an advance payment would be against equity and good conscience or against the public interest include, but are not limited to:
(A) Death of the employee;
(B) Retirement of the employee for disability;
(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and
(D) Whether failure to repay would result in unfair gain to the employee.
(ii) [Reserved]
(4) Debts arising out of advances of allowances and differentials for employees stationed abroad. 5 U.S.C. 5922 provides authority for waiving in whole or in part a debt arising out of an advance of allowances and differentials provided under this subchapter if it is shown that recovery would be against equity and good conscience or against the public interest.
(i) Factors to be considered when determining if recovery of an advance payment would be against equity and good conscience or against the public interest include, but are not limited to:
(A) Death of the employee;
(B) Retirement of the employee for disability;
(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and
(D) Whether failure to repay would result in unfair gain to the employee.
(ii) [Reserved]
(5) Debts arising out of employee training expenses. 5 U.S.C. 4108 provides authority for waiving in whole or in part a debt arising out of employee training expenses if it is shown that recovery would be against equity and good conscience or against the public interest.
(i) Factors to be considered when determining if recovery of a debt arising out of employee training expenses would be against equity and good conscience or against the public interest include, but are not limited to:
(A) Death of the employee;
(B) Retirement of the employee for disability;
(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and
(D) Whether failure to repay would result in unfair gain to the employee.
(ii) [Reserved]
(6) Under-withholding of life insurance premiums. 5 U.S.C. 8707(d) provides authority for waiving the collection of unpaid deductions resulting from under-withholding of Federal Employees’ Group Life Insurance Program premiums if the individual is without fault and recovery would be against equity and good conscience.
(i) Fault is considered to exist if in light of the circumstances the employee knew or should have known through the exercise of due diligence that an error existed but failed to take corrective action.
(ii) Factors to be considered when determining whether recovery of unpaid deduction resulting from under-withholding would be against equity and good conscience include, but are not limited to:
(A) Whether collection of the claim would cause serious financial hardship to the individual from whom collection is sought.
(B) The time elapsed between the failure to properly withhold and discovery of the failure and notification of the individual;
(C) Whether failure to make restitution would result in unfair gain to the individual;
(D) Whether recovery of the claim would be unconscionable under the circumstances.
(7) Overpayments of Foreign Service annuities. For waiver of debts arising from overpayments from the Foreign Service Retirement and Disability Fund under the Foreign Service Retirement and Disability System or the Foreign Service Pension System see 22 CFR part 17.
(8) As otherwise provided by law.
(c) Waiver of indebtedness is an equitable remedy and as such must be based on an assessment of the facts involved in the individual case under consideration.
(d) The burden is on the employee to demonstrate that the applicable waiver standard has been met.
(e) Requests. A debtor requesting a waiver shall do so in writing to the contact office by the payment due date stated within the initial notice sent under § 34.8(b) or other applicable provision. The debtor’s written response shall state the basis for the dispute and include any relevant documentation in support.
(f) While a waiver request is pending, STATE may suspend collection, including the accrual of interest and penalties, on the debt if STATE determines that suspension is in the Department’s best interest or would serve equity and good conscience.
§ 34.19 Compromise.
STATE may attempt to effect compromise in accordance with the standards set forth in the FCCS, 31 CFR part 902.
§ 34.20 Suspension.
The suspension of collection action shall be made in accordance with the standards set forth in the FCCS, 31 CFR 903.1-903.2
§ 34.21 Termination.
The termination of collection action shall be made in accordance with the standards set forth in the FCCS, 31 CFR 903.1 and 903.3-903.4.
§ 34.22 Discharge.
Once a debt has been closed out for accounting purposes and collection has been terminated, the debt is discharged. STATE must report discharged debt as income to the debtor to the Internal Revenue Service per 26 U.S.C. 6050P and 26 CFR 1.6050P-1.
§ 34.23 Bankruptcy.
A debtor should notify STATE at the contact office provided in the original notice of the debt, if the debtor has filed for bankruptcy. STATE will require documentation from the applicable court indicating the date of filing and type of bankruptcy. Pursuant to the laws of bankruptcy, STATE will suspend debt collection upon such filing unless the automatic stay is no longer in effect or has been lifted. In general, collection of a debt discharged in bankruptcy shall be terminated unless otherwise provided for by bankruptcy law.
§ 34.24 Refunds.
(a) STATE will refund promptly to the appropriate individual amounts offset under this regulation when:
(1) A debt is waived or otherwise found not owing the United States (unless expressly prohibited by statute or regulation); or
(2) STATE is directed by an administrative or judicial order to make a refund.
(b) Refunds do not bear interest unless required or permitted by law or contract.
PART 35 – PROGRAM FRAUD CIVIL REMEDIES
§ 35.1 General.
(a) Basis. This part implements the Program Fraud Civil Remedies Act of 1986, Public Law 99-509, sections. 6101-6104, 100 Stat. 1874 (October 21, 1986), codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the statute requires each authority head to promulgate regulations necessary to implement the provisions of the statute.
(b) Purpose. This part establishes administrative procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false fictitious, or fraudulent claims or written statements to authorities or to their agents; and specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments.
(c) Special considerations abroad. Where a party, witness or material evidence in a proceeding under these regulations is located abroad, the investigating official, reviewing official or ALJ, as the case may be, may adjust the provisions below for service, filing of documents, time limitations, and related matters to meet special problems arising out of that location.
§ 35.2 Definitions.
(a) ALJ means an Administrative Law Judge in the authority appointed pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 U.S.C. 3344.
(b) Authority means the United States Department of State.
(c) Authority head means the Under Secretary for Management.
(d) Benefit means, in the context of “statement,” anything of value, including but not limited to, any advantage, preference, privilege, license, permit, favorable decision, ruling, status, or loan gurarantee.
(e) Claim means any request, demand, or submission –
(1) Made to the authority for property, services, or money (including money representing grants, loans, insurance, or benefits);
(2) Made to a recipient of property, services, or money from the authority or to a party to a contract with the authority –
(i) For property or services if the United States –
(A) Provided such property or services;
(B) Provided any portion of the funds for the purchase of such property or services; or
(C) Will reimburse such recipient or party for the purchase of such property or services; or
(ii) For the payment of money (including money representing grants, loans, insurance or benefits) if the United States –
(A) Provided any portion of the money requested or demanded; or
(B) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or
(3) Made to the authority which has the effect of decreasing an obligation to pay or account for property, services or money.
(f) Complaint means the administrative complaint served by the reviewing official on the defendant under § 35.7.
(g) Defendant means any person alleged in a complaint under § 35.7 to be liable for a civil penalty or assessment under § 35.3.
(h) Department means the Department of State.
(i) Government means the United States Government.
(j) Individual means a natural person.
(k) Initial decision means the written decision of the ALJ required by § 35.10 or § 35.37, and includes a revised initial decision issued following a remand or a motion for reconsideration.
(l) Investigating official means the Inspector General of the Department of State or an officer or employee of the Office of Inspector General designated by the Inspector General and serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS-16 under the General Schedule.
(m) Knows or has reason to know means that a person, with respect to a claim or statement –
(1) Has actual knowledge that the claim or statement is false, fictitious, or fraudulent;
(2) Acts in deliberate ignorance of the truth or falsity of the claim or statement; or
(3) Acts in reckless disregard of the truth or falsity of the claim or statement.
(n) Makes, wherever it appears, shall include the terms presents, submits, and causes to be made, presented, or submitted. As the context requires, making or made, shall likewise include the corresponding forms of such terms.
(o) Person means any individual, partnership, corporation, association or private organization, and includes the plural of the term.
(p) Representative means an attorney who is a member in good standing of the bar of any state, territory, or possession of the United States, or of the District of Columbia, or the Commonwealth of Puerto Rico.
(q) Representative for the Authority means the Counsel to the Inspector General.
(r) Reviewing official means the Assistant Legal Adviser for Buildings and Acquisitions or her or his designee who is –
(1) Not subject to supervision by, or required to report to, the investigating official;
(2) Not employed in the organizational unit of the authority in which the investigating official is employed; and
(3) Serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS-16 under the General Schedule.
(s) Statement means any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made –
(1) With respect to a claim or to obtain the approval or payment of a claim (including relating to eligibility to make a claim); or
(2) With respect to (including relating to eligibility for) –
(i) A contract with, or a bid or proposal for a contract with; or
(ii) A grant, loan or benefit from, the authority, or any state, political subdivision of a state, or other party, if the United States Government provides any portion of the money or property under such contract or for such grant, loan, or benefit, or if the Government will reimburse such state, political subdivision, or party for any portion of the money or property under such contract or for such grant, loan, or benefit.
§ 35.3 Basis for civil penalties and assessments.
(a) Claims. (1) Except as provided in paragraph (c) of this section, any person who makes a claim that the person knows or has reason to know the following shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $13,508 for each such claim:
(i) Is false, fictitious, or fraudulent;
(ii) Includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent;
(iii) Includes or is supported by any written statement that –
(A) Omits a material fact;
(B) Is false, fictitious, or fraudulent as a result of such omission; and
(C) Is a statement in which the person making the statement has a duty to include such material fact; or
(iv) Is for payment for the provision of property or services which the person has not provided as claimed.
(2) Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a separate claim.
(3) A claim shall be considered made to the authority, recipient, or party when such claim is actually made to an agent, fiscal intermediary, or other entity, including any state or political subdivision thereof, acting for or on behalf of the authority, recipient, or party.
(4) Each claim for property, services, or money is subject to a civil penalty regardless of whether such property, services, or money is actually delivered or paid.
(5) If the Government has made any payment (including transferred property or provided services) on a claim, a person subject to a civil penalty under paragraph (a)(1) of this section shall also be subject to an assessment of not more than twice the amount of such claim or that portion thereof that is determined to be in violation of paragraph (a)(1) of this section. Such assessment shall be in lieu of damages sustained by the Government because of such claim.
(b) Statements. (1) Except as provided in paragraph (c) of this section, any person who makes a written statement that –
(i) The person knows or has reason to know –
(A) Asserts a material fact which is false, fictitious, or fraudulent; or
(B) Is false, fictitious, or fraudulent because it omits a material fact that the person making the statment has a duty to include in such statement; and
(ii) Contains or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $13,508 for each such statement.
(2) Each written representation, certification, or affirmation constitutes a separate statement.
(3) A statement shall be considered made to the authority when such statement is actually made to an agent, fiscal intermediary, or other entity, including any state or political subdivision thereof, acting for or on behalf of the authority.
(c) No proof of specific intent to defraud is required to establish liability under this section.
(d) In any case in which it is determined that more than one person is liable for making a claim or statement under this section, each such person may be held liable for a civil penalty under this section.
(e) In any case in which it is determined that more than one person is liable for making a claim under this section on which the Government has made payment (including transferred property or provided services), an assessment may be imposed against any such person or jointly and severally against any combination of such persons.
(f) The maximum penalty for each false claim or statement is $13,508, up to a maximum of $405,270.
§ 35.4 Investigation.
(a) If an investigating official concludes that a subpoena pursuant to the authority conferred by 31 U.S.C. 3804(a) is warranted –
(1) The subpoena so issued shall notify the person to whom it is addressed of the authority under which the subpoena is issued (and, in the case of a subpoena to be served outside the jurisdiction of the United States, the basis for such service), and shall identify the records or documents sought;
(2) The investigating official may designate a person to act on his or her behalf to receive the documents sought; and
(3) The person receiving such subpoena shall be required to tender to the investigating official or the person designated to receive the documents a certification that the documents sought have been produced, or that such documents are not available and the reasons therefore, or that such documents, suitably identified, have been withheld based upon the assertion of an identified privilege.
(b) If the investigating official concludes that an action under the Program Fraud Civil Remedies Act may be warranted, the investigating official shall submit a report containing the findings and conclusions of such investigation to the reviewing official.
(c) Nothing in this section shall preclude or limit an investigating official’s discretion to refer allegations directly to the Department of Justice for suit under the False Claims Act or other civil relief, or to preclude or limit such official’s discretion to defer or postpone a report or referral to the reviewing official to avoid interference with a criminal investigation or prosecution.
(d) Nothing in this section modifies any responsibility of an investigating official to report violations of criminal law to the Attorney General.
§ 35.5 Review by the reviewing official.
(a) If, based on the report of the investigating official under § 35.4(b), the reviewing official determines that there is adequate evidence to believe that a person is liable under § 35.3 of this part, the reviewing official shall transmit to the Attorney General a written notice of the reviewing official’s intention to issue a complaint under § 35.7.
(b) Such notice shall include –
(1) A statement of the reviewing official’s reasons for issuing a complaint;
(2) A statement specifying the evidence that supports the allegations of liability;
(3) A description of the claims or statements upon which the allegations of liability are based;
(4) An estimate of the amount of money or the value of property, services, or other benefits requested or demanded in violation of § 35.3;
(5) A statement of any exculpatory or mitigating circumstances that may relate to the claims or statements known by the reviewing official or the investigating official; and
(6) A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments.
§ 35.6 Prerequisites for issuing a complaint.
(a) The reviewing official may issue a complaint under § 35.7 only if –
(1) The Department of Justice approves the issuance of a complaint in a written statement described in 31 U.S.C. 3803(b)(1); and
(2) In the case of allegations of liability under § 35.3(a) with respect to a claim, the reviewing official determines that, with respect to such claim or a group of related claims submitted at the same time such claim is submitted (as defined in paragraph (b) of this section), the amount of money or the value of property or services demanded or requested in violation of § 35.3(a) does not exceed $150,000.
(b) For purposes of this section, a related group of claims submitted at the same time shall include only those claims arising from the same transaction (e.g., grant, loan, application, or contract) that are submitted simultaneously as part of a single request, demand or submission.
(c) Nothing in this section shall be construed to limit the reviewing official’s authority to join in a single complaint against a person’s claims that are unrelated or were not submitted simultaneously, regardless of the amount of money, or the value of property or services, demanded or requested.
§ 35.7 Complaint.
(a) On or after the date the Department of Justice approves the issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the reviewing official may serve a complaint on the defendant, as provided in § 35.8.
(b) The complaint shall state –
(1) The allegations of liability against the defendant, including the statutory basis for liability, an identification of the claims or statements that are the basis for the alleged liability, and the reasons why liability allegedly arises from such claims or statements;
(2) The maximum amount of penalties and assessments for which the defendant may be held liable;
(3) Instructions for filing an answer to request a hearing, including a specific statement of the defendant’s right to request a hearing by filing an answer and to be represented by a representative; and
(4) That failure to file an answer within 30 days of service of the complaint will result in the imposition of the maximum amount of penalties and assessments without right to appeal, as provided in § 35.10.
(c) At the same time the reviewing official serves the complaint, he or she shall serve the defendant with a copy of these regulations.
§ 35.8 Service of complaint.
(a) Service of a complaint must be made by certified or registered mail or by delivery in any manner authorized by Rule 4(d) of the Federal Rules of Civil Procedure. Service is complete upon receipt.
(b) Proof of service, stating the name and address of the person on whom the complaint was served, and the manner and date of service, may be made by –
(1) Affidavit of the individual serving the complaint by delivery;
(2) A United States Postal Service return receipt card acknowledging receipt;
(3) Written acknowledgment of receipt by the defendant or his or her representative; or
(4) In case of service abroad authenticated in accordance with the Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters.
§ 35.9 Answer.
(a) The defendant may request a hearing by filing an answer with the reviewing official within 30 days of service of the complaint. An answer shall be deemed to be a request for hearing.
(b) In the answer, the defendant –
(1) Shall admit or deny each of the allegations of liability made in the complaint;
(2) Shall state any defense on which the defendant intends to rely;
(3) May state any reasons why the defendant contends that the penalties and assessments should be less than the statutory maximum; and
(4) Shall state the name, address and telephone number of the person authorized by the defendant to act as defendant’s representative, if any.
(c) If the defendant is unable to file an answer meeting the requirements of paragraph (b) of this section within the time provided, the defendant may, before the expiration of 30 days from service of the complaint, file with the reviewing official a general answer denying liability and requesting a hearing, and a request for an extension of time within which to file an answer meeting the requirements of paragraph (b) of this section. The reviewing official shall file promptly with the ALJ the complaint, the general answer denying liability, and the request for an extension of time as provided in § 35.10. For good cause shown, the ALJ may grant the defendant up to 30 additional days within which to file an answer meeting the requirements of paragraph (b) of this section.
§ 35.10 Default upon failure to file an answer.
(a) If the defendant does not file an answer within the time prescribed in § 35.9(a), the reviewing official may refer the complaint to the ALJ.
(b) Upon the referral of the complaint, the ALJ shall promptly serve on defendant in the manner prescribed in § 35.8, a notice that an initial decision will be issued under this section.
(c) If the defendant fails to answer, the ALJ shall assume the facts alleged in the complaint to be true, and, if such facts established liability under § 35.3, the ALJ shall issue an initial decision imposing the maximum amount of penalties and assessments allowed under the statute.
(d) Except as otherwise provided in this section, by failing to file a timely answer, the defendant waives any right to further review of the penalties and assessments imposed under paragraph (c) of this section, and the initial decision shall become final and binding upon the parties 30 days after it was issued.
(e) If, before such an initial decision becomes final, the defendant files a motion with the ALJ seeking to reopen on the grounds that extraordinary circumstances prevented the defendant from filing an answer, the initial decision shall be stayed pending the ALJ’s decision on the motion.
(f) If, on such motion, the defendant can demonstrate extraordinary circumstances excusing the failure to file a timely answer, the ALJ shall withdraw the initial decision in paragraph (c) of this section, if such a decision has been issued, and shall grant the defendant an opportunity to answer the complaint.
(g) A decision of the ALJ denying a defendant’s motion under paragraph (e) of this section is not subject to reconsideration under § 35.38.
(h) The defendant may appeal to the authority head the decision denying a motion to reopen by filing a notice of appeal with the authority head within 15 days after the ALJ denies the motion. The timely filing of a notice of appeal shall stay the initial decision until the authority head decides the issue.
(i) If the defendant files a timely notice of appeal with the authority head, the ALJ shall forward the record of the proceeding to the authority head.
(j) The authority head shall decide expeditiously whether extraordinary circumstances excuse the defendant’s failure to file a timely answer based solely on the record before the ALJ.
(k) If the authority head decides that extraordinary circumstances excused the defendant’s failure to file a timely answer, the authority head shall remand the case to the ALJ with instructions to grant the defendant an opportunity to answer.
(l) If the authority head decides that the defendant’s failure to file a timely answer is not excused, the authority head shall reinstate the initial decision of the ALJ, which shall become final and binding upon the parties 30 days after the authority head issues such decision.
§ 35.11 Referral of complaint and answer to the ALJ.
Upon receipt of an answer, the reviewing official shall file the complaint and answer with the ALJ.
§ 35.12 Notice of hearing.
(a) When the ALJ receives the complaint and answer, the ALJ shall promptly serve a notice of hearing upon the defendant in the manner prescribed by § 35.8. At the same time, the ALJ shall send a copy of such notice to the representative for the Authority.
(b) Such notice shall include –
(1) The tentative time and place, and the nature of the hearing;
(2) The legal authority and jurisdiction under which the hearing is to be held;
(3) The matters of fact and law to be asserted;
(4) A description of the procedures for the conduct of the hearing;
(5) The name, address, and telephone number of the representative of the Government and of the defendant, if any; and
(6) Such other matters as the ALJ deems appropriate.
§ 35.13 Parties to the hearing.
(a) The parties to the hearing shall be the defendant and the Authority.
(b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the False Claims Act may participate in these proceedings to the extent authorized by the provisions of that Act.
§ 35.14 Separation of functions.
(a) The investigating official, the reviewing official, and any employee or agent of the authority who takes part in investigating, preparing, or presenting a particular case may not, in such case or a factually related case –
(1) Participate in the hearing as the ALJ;
(2) Participate or advise in the initial decision or the review of the initial decision by the authority head, except as a witness or a representative in public proceedings; or
(3) Make the collection of penalties and assessments under 31 U.S.C. 3806.
(b) The ALJ shall not be responsible to, or subject to the supervision or direction of the investigating official or the reviewing official.
(c) Except as provided in paragraph (a) of this section, the representative for the Government may be employed anywhere in the authority, including in the offices of either the investigating official or the reviewing official.
§ 35.15 Ex parte contacts.
No party or person (except employees of the ALJ’s office) shall communicate in any way with the ALJ on any matter at issue in a case, unless on notice and opportunity for all parties to participate. This provision does not prohibit a person or party from inquiring about the status of a case or asking routine questions concerning administrative functions or procedures.
§ 35.16 Disqualification of reviewing official or ALJ.
(a) A reviewing official or ALJ in a particular case may disqualify herself or himself at any time.
(b) A party may file with the ALJ a motion for disqualification of a reviewing official or an ALJ. Such motion shall be accompanied by an affidavit alleging personal bias or other reason for disqualification.
(c) Such motion and affidavit shall be filed promptly upon the party’s discovery of reasons requiring disqualification, or such objects shall be deemed waived
(d) Such affidavit shall state specific facts that support the party’s belief that personal bias or other reason for disqualification exists and the time and circumstances of the party’s discovery of such facts. It shall be accompanied by a certificate of the representative of record that it is made in good faith.
(e) Upon the filing of such a motion and affidavit, the ALJ shall proceed no further in the case until he or she resolves the matter of disqualification in accordance with paragraph (f) of this section.
(f) If the ALJ –
(1) Determines that a reviewing official is disqualified, the ALJ shall dismiss the complaint without prejudice;
(2) Disqualifies himself or herself, the case shall be reassigned promptly to another ALJ; or
(3) Denies a motion to disqualify, the authority head may determine the mater only as part of his or her review of the initial decision upon appeal, if any.
§ 35.17 Rights of parties.
Except as otherwise limited by this part, all parties may –
(a) Be accompanied, represented, and advised by a representative;
(b) Participate in any conference held by the ALJ;
(c) Conduct discovery;
(d) Agree to stipulations of fact or law, which shall be made part of the record;
(e) Present evidence relevant to the issues at the hearing;
(f) Present and cross-examine witnesses;
(g) Present oreal arguments at the hearing as permitted by the ALJ; and
(h) Submit written briefs and proposed findings of fact and conclusions of law after the hearing.
§ 35.18 Authority of the ALJ.
(a) The ALJ shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made.
(b) The ALJ has the authority to –
(1) Set and change the date, time, and place of the hearing upon reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas to be served within the United States requiring the attendance of witnesses and the production of documents at depositions or at hearings. Subpoenas to be served outside the jurisdiction of the United States shall state on their face the authority therefore;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the conduct of representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evidence;
(11) Upon motion of a party, take official notice of facts;
(12) Upon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact;
(13) Conduct any conference, argument, or hearing on motions in person or by telephone; and
(14) Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under this part.
(c) The ALJ does not have the authority to find treaties and other international agreements or federal statutes or regulations invalid.
§ 35.19 Prehearing conferences.
(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ shall schedule at least one prehearing conference at a reasonable time in advance of the hearing.
(c) The ALJ may use prehearing conferences to discuss the following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleadings, including the need for a more definite statement;
(3) Stipulations and admissions of fact or as to the contents and authenticity of documents;
(4) Whether the parties can agree to submission of the case on a stipulated record;
(5) Whether a party chooses to waive appearance at an oral hearing and to submit only documentary evidence (subject to the objection of other parties) and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange of witness lists and of proposed exhibits;
(8) Discovery;
(9) The time and place for the hearing; and
(10) Such other matters as may tend to expedite the fair and just disposition of the proceedings.
(d) The ALJ may issue an order containing all matters agreed upon by the parties or ordered by the ALJ at a prehearing conference.
§ 35.20 Disclosure of documents.
(a) Upon written request to the reviewing official, the defendant may review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the complaint and upon which the findings and conclusions of the investigating official under § 35.4(b) are based, unless such materials are subject to a privilege under federal law or classified pursuant to Executive Order. Upon payment of fees for duplication, the defendant may obtain copies of such documents.
(b) Upon written request to the reviewing official, the defendant also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint, even if it is contained in a document that would otherwise be privileged. If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed.
(c) The notice sent to the Attorney General from the reviewing official as described in § 35.5 is not discoverable under any circumstances.
(d) The defendant may file a motion to compel disclosure of the documents subject to the provisions of this section. Such a motion may only be filed with the ALJ following the filing of an answer pursuant to § 35.9.
§ 35.21 Discovery.
(a) The following types of discovery are authorized:
(1) Requests for production of documents for inspection and copying;
(2) Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact;
(3) Written interrogatories; and
(4) Depositions.
(b) For the purpose of this section and §§ 35.22 and 35.23, the term “documents” includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence. Nothing contained herein shall be interpreted to require the creation of a document.
(c) Unless mutually agreed to by the parties, discovery is available only as ordered by the ALJ. The ALJ shall regulate the timing of discovery.
(d) Motions for discovery. (1) A party seeking discovery may file a motion with the ALJ. Such a motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition.
(2) Within ten days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in § 35.24.
(3) The ALJ may grant a motion for discovery only if he finds that the discovery sought –
(i) Is necessary for the expeditious, fair, and reasonable consideration of the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged or classified information.
(4) The burden of showing that discovery should be allowed is on the party seeking discovery.
(5) The ALJ may grant discovery subject to a protective order under § 35.24.
(e) Depositions. (1) If a motion for deposition is granted, the ALJ shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will be held.
(2) The party seeking to depose shall serve the subpoena in the manner prescribed in § 35.8.
(3) The deponent may file with the ALJ a motion to quash the subpoena or a motion for a protective order within ten days of service.
(4) The party seeking to depose shall provide for the taking of a verbatim transcript of the deposition, which it shall make available to all other parties for inspection and copying.
(f) Each party shall bear its own costs of discovery.
§ 35.22 Exchange of witness lists, statements and exhibits.
(a) At least 15 days before the hearing or at such other time as may be ordered by the ALJ, the parties shall exchange witness lists, copies of prior statements of proposed witnesses, and copies of proposed hearing exhibits, including copies of any written statements that the party intends to offer in lieu of live testimony in accordance with § 35.33(b). At the time the above documents are exchanged, any party that intends to rely on the transcript of deposition testimony in lieu of live testimony at the hearing, if permitted by the ALJ, shall provide each party with a copy of the specific pages of the transcript it intends to introduce into evidence.
(b) If a party objects, the ALJ shall not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to the opposing party as provided above unless the ALJ finds good cause for the failure or that there is no prejudice to the objecting party.
(c) Unless another party objects within the time set by the ALJ, documents exchanged in accordance with paragraph (a) of this section shall be deemed to be authentic for the purpose of admissibility at the hearing.
§ 35.23 Subpoenas for attendance at hearing.
(a) A party wishing to procure the appearance and testimony of any individual at the hearing may request that the ALJ issue a subpoena.
(b) A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing.
(c) A party seeking a subpoena shall file a written request therefor not less than 15 days before the day fixed for the hearing unless otherwise allowed by the ALJ for good cause shown. Such request shall specify any documents to be produced and shall designate the witnesses and describe the address and location thereof with sufficient particularity to permit such witnesses to be found.
(d) The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce.
(e) The party seeking the subpoena shall serve it in the manner prescribed in § 35.8. A subpoena on a party or upon an individual under the control of a party may be served within the United States by first class mail.
(f) A party or the individual to whom the subpoena is directed may file with the ALJ a motion to quash the subpoena within ten days after service or on or before the time specified in the subpoena for compliance if it is less than ten days after service.
§ 35.24 Protective order.
(a) A party or a prospective witness or deponent may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing, seeking to limit the availability or disclosure of evidence.
(b) In issuing a protective order, the ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1) That the discovery not be had;
(2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place;
(3) That the discovery may be had only through a method of discovery other than that requested;
(4) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons designated by the ALJ;
(6) That the contents of discovery or evidence be sealed;
(7) That a deposition after being sealed be opened only by order of the ALJ;
(8) That a trade secret or other confidential research, development, commercial information, classified material, or facts pertaining to any criminal investigation, proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way; or
(9) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the ALJ.
§ 35.25 Fees.
The party requesting a subpoena shall pay the cost of the fees and mileage of any witness subpoenaed in the amounts that would be payable to a witness in a proceeding in United States District Court. A check for witness fees and mileage shall accompany the subpoena when served, except that when a subpoena is issued on behalf of the authority, a check for witness fees and mileage need not accompany the subpoena.
§ 35.26 Form, filing and service of papers.
(a) Form. (1) Documents filed with the ALJ shall include an original and two copies.
(2) Every pleading and paper filed in the proceeding shall contain a caption setting forth the title of the action, the case number assigned by the ALJ, a designation of the paper (e.g., motion to quash subpoena), and shall be in English or accompanied by an English translation.
(3) Every pleading and paper shall be signed by, and shall contain the address and telephone number of the party or the person on whose behalf the paper was filed, or his or her representative.
(4) Papers are considered filed when they are mailed. Date of mailing may be established by a certificate from the party or its representative or by proof that the document was sent by certified or registered mail.
(b) Service. A party filing a document with the ALJ shall, at the time of filing, serve a copy of such document on every other party. Service upon any party of any document other than the complaint or notice of hearing, shall be made by delivering or mailing a copy to the party’s last known address. When a party is represented by a representative, service shall be made upon such representative in lieu of the actual party.
(c) Proof of service. A certificate of the individual serving the document by personal delivery or by mail, setting forth the manner of service, shall be proof of service.
§ 35.27 Computation of time.
(a) In computing any period of time under this part or in an order issued thereunder, the time begins with the day following the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed by the Federal Government, in which event it includes the next business day.
(b) When the period of time allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays observed by the Federal Government shall be excluded from the computation.
(c) Where a document has been served or issued by mail, or by airmail abroad, an additional five days will be added to the time permitted for any response.
§ 35.28 Motions.
(a) Any application to the ALJ for an order or ruling shall be by motion. Motions shall state the relief sought, the authority relied upon, and the facts alleged, and shall be filed with the ALJ and served on all other parties.
(b) Except for motions made during a prehearing conference or at the hearing, all motions shall be in writing. The ALJ may require that oral motions be reduced to writing.
(c) Within 15 days after a written motion is served, or such other time as may be fixed by the ALJ, any party may file a response to such motion.
(d) The ALJ may not grant a written motion before the time for filing responses thereto has expired, except upon consent of the parties or following a hearing on the motion, but may overrule or deny such motion without awaiting a response.
(e) The ALJ shall make a reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing.
§ 35.29 Sanctions.
(a) The ALJ may sanction a person, including any party or representative for –
(1) Failing to comply with an order, rule, or procedure governing the proceeding;
(2) Failing to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.
(b) Any such sanction, including but not limited to those listed in paragraphs (c), (d), and (e) of this section, shall reasonably relate to the severity and nature of the failure or misconduct.
(c) When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party’s control, or a request for admission, the ALJ may –
(1) Draw an inference in favor of the requesting party with regard to the information sought;
(2) In the case of requests for admission, deem each matter of which an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon, testimony relating to the information sought; and
(4) Strike any part of the pleadings or other submissions of the party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this part commenced by service of a notice of hearing, the ALJ may dismiss the action or may issue an initial decision imposing penalties and assessments.
(e) The ALJ may refuse to consider any motion, request, response, brief or other document which is not filed in a timely fashion.
§ 35.30 The hearing and burden of proof.
(a) The ALJ shall conduct a hearing on the record in order to determine whether the defendant is liable for a civil penalty or assessment under § 35.3 and, if so, the appropriate amount of any such civil penalty or assessment considering any aggravating or mitigating factors.
(b) The authority shall prove defendant’s liability and any aggravating factors by a preponderance of the evidence.
(c) The defendant shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.
(d) The hearing shall be open to the public unless otherwise ordered by the ALJ for good cause shown.
§ 35.31 Determining the amount of penalties and assessments.
(a) In determining an appropriate amount of civil penalties and assessments, the ALJ and the authority head, upon appeal, should evaluate any circumstances that mitigate or aggravate the violation and should articulate in their opinions the reasons that support the penalties and assessments they impose. Because of the intangible costs of fraud, the expense of investigating such conduct, and the need to deter others who might be similarly tempted, ordinarily double damages and a significant civil penalty should be imposed.
(b) Although not exhaustive, the following factors are among those that may influence the ALJ and the authority head in determining the amount of penalties and assessments to impose with respect to the misconduct (i.e., the false, fictitious, or fraudulent claims or statements) charged in the complaint:
(1) The number of false, fictitious, or fraudulent claims or statements;
(2) The time period over which such claims or statements were made;
(3) The degree of the defendant’s culpability with respect to the misconduct;
(4) The amount of money or the value of the property, services, or benefit falsely claimed;
(5) The value of the Government’s actual loss as a result of the misconduct, including foreseeable consequential damages and the costs of investigation;
(6) The relationship of the amount imposed as civil penalties to the amount of the Government’s loss;
(7) The potential or actual impact of the misconduct upon national defense, public health or safety, or public confidence in the management of government programs and operations, including particularly the impact on the intended beneficiaries of such programs;
(8) Whether the defendant has engaged in a pattern of the same or similar misconduct;
(9) Whether the defendant attempted to conceal the misconduct;
(10) The degree to which the defendant has involved others in the misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the defendant, the extent to which the defendant’s practices fostered or attempted to preclude such misconduct;
(12) Whether the defendant cooperated in or obstructed an investigation of the misconduct;
(13) Whether the defendant assisted in identifying and prosecuting other wrongdoers;
(14) The complexity of the program or transaction, and the degree of the defendant’s sophistication with respect to it, including the extent of the defendant’s prior participation in the program or in similar transactions;
(15) Whether the defendant has been found, in any criminal, civil, or administrative proceeding to have engaged in similar misconduct or to have dealt dishonestly with the Government of the United States or of a state, directly or indirectly; and
(16) The need to deter the defendant and others from engaging in the same or similar misconduct.
(c) Nothing in this section shall be construed to limit the ALJ or the authority head from considering any other factors that in any given case may mitigate or aggravate the offense for which penalties and assessments are imposed.
§ 35.32 Location of hearing.
(a) The hearing may be held –
(1) In any judicial district of the United States in which the defendant resides or transacts business;
(2) In any judicial district of the United States in which the claim or statement in issue was made; or
(3) In such other place within the United States as may be agreed upon by the defendant and the ALJ.
(b) Each party shall have the opportunity to present argument with respect to the location of the hearing.
(c) The hearing shall be held at the place and at the time ordered by the ALJ.
§ 35.33 Witnesses.
(a) Except as provided in paragraph (b) of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the form of a written statement or deposition. Any such written statement must be provided to all other parties along with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena such witness for cross-examination at the hearing. Prior written statements of witnesses proposed to testify at the hearing and deposition transcripts shall be exchanged as provided in § 35.22(a).
(c) The ALJ shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence in order to make –
(1) The interrogation and presentation effective for the ascertainment of the truth;
(2) To avoid needless consumption of time; and
(3) To protect witnesses from harassment or undue embarrassment.
(d) The ALJ shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts.
(e) At the discretion of the ALJ, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of his or her direct examination. To the extent permitted by the ALJ, cross-examination on matters outside the scope of direct examination shall be conducted in the manner of direct examination and may proceed by leading questions only if the witness is a hostile witness, an adverse party, or a witness identified with an adverse party.
(f) Upon motion of any party, the ALJ shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of –
(1) A party who is an individual;
(2) In the case of a party that is not an individual, an officer or employee of the party designated by the party’s representative; or
(3) An individual whose presence is shown by a party to be essential to the presentation of its case, including an individual employed by the Government engaged in assisting the representative for the Government.
§ 35.34 Evidence.
(a) The ALJ shall determine the admissibility of evidence.
(b) Except as provided herein, the ALJ shall not be bound by the Federal Rules of Evidence. However, the ALJ may apply the Federal Rules of Evidence where appropriate, e.g., to exclude unreliable evidence.
(c) The ALJ shall exclude irrelevant and immaterial evidence.
(d) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence.
(e) Although relevant, evidence may be excluded if it is classified or otherwise privileged under Federal law.
(f) Evidence concerning offers or compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence.
(g) The ALJ shall permit the parties to introduce rebuttal witnesses and evidence.
(h) All documents and other evidence offered or taken for the record shall be open to examination by all parties, unless otherwise ordered by the ALJ pursuant to § 35.24.
§ 35.35 The record.
(a) The hearing will be recorded and transcribed. Transcripts may be obtained following the hearing from the ALJ at a cost not to exceed the actual cost of duplication.
(b) The transcript of testimony, exhibits and other evidence admitted at the hearing, and all papers and requests filed in the proceeding constitute the record for the decision by the ALJ and the authority head.
(c) The record may be inspected and copied (upon payment of a reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant to § 35.24.
§ 35.36 Post-hearing briefs.
The ALJ may require the parties to file post-hearing briefs. In any event, any party may file a post-hearing brief. The ALJ shall fix the time for filing such briefs, not to exceed 60 days from the date the parties receive the transcript of the hearing or, if applicable, the stipulated record. Such briefs may be accompanied by proposed findings of fact and conclusions of law. The ALJ may permit the parties to file reply briefs.
§ 35.37 Initial decision.
(a) The ALJ shall issue an initial decision based only on the record, which shall contain findings of fact, conclusions of law, and the amount of any penalties and assessments imposed.
(b) The findings of fact shall include a finding on each of the following issues:
(1) Whether the claims or statements identified in the complaint, or any portions thereof, violate § 35.3; and
(2) If the person is liable for penalties or assessments, the appropriate amount of any such penalties or assessments considering any mitigating or aggravating factors that he or she finds in the case, such as those described in § 35.31.
(c) The ALJ shall promptly serve the initial decision on all parties within 90 days after the time for submission of post-hearing briefs and reply briefs (if permitted) has expired. The ALJ shall at the same time serve all defendants with a statement describing the right of any defendant determined to be liable for a civil penalty or assessment to file a motion for reconsideration with the ALJ or a notice of appeal with the authority head. If the ALJ fails to meet the deadline contained in this paragraph, he or she shall notify the parties of the reason for the delay and shall set a new deadline.
(d) Unless the initial decision of the ALJ is timely appealed to the authority head, or a motion for reconsideration of the initial decision is timely filed, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued by the ALJ.
§ 35.38 Reconsideration of initial decision.
(a) Except as provided in paragraph (d) of this section, any party may file a motion for reconsideration of the initial decision within 20 days of receipt of the initial decision. If service was made by mail within the United States, receipt will be presumed to be five days from the date of mailing in the absence of contrary proof.
(b) Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Such motion shall be accompanied by a supporting brief.
(c) Responses to such motions shall be allowed only upon request of the ALJ.
(d) No party may file a motion for reconsideration of an initial decision that has been revised in response to a previous motion for reconsideration.
(e) The ALJ may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.
(f) If the ALJ denies a motion for reconsideration of the initial decision, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after the ALJ denies the motion, unless the initial decision is timely appealed to the authority head in accordance with § 35.39.
(g) If the ALJ issues a revised initial decision, that decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued, unless it is timely appealed to the authority head in accordance with § 35.39.
(a) Any defendant who has filed a timely answer and who is determined in an initial decision to be liable for a civil penalty or assessment may appeal such decision to the authority head by filing a notice of appeal with the authority head in accordance with this section.
(b)(1) No notice of appeal may be filed until the time period for filing a motion for reconsideration under § 35.38 has expired.
(2) If a motion for reconsideration is timely filed, a notice of appeal must be filed within 30 days after the ALJ denies the motion or issues a revised initial decision, whichever applies.
(3) If no motion for reconsideration is timely filed, a notice of appeal must be filed within 30 days after the ALJ issues the initial decision.
(4) The authority head may extend the initial 30-day period for an additional 30 days if the defendant files with the authority head a request for an extension within the initial 30-day period and shows good cause.
(c) If the defendant files a timely notice of appeal with the authority head and the time for filing motions for reconsideration under § 35.38 has expired, the ALJ shall forward the record of the proceeding to the authority head.
(d) A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.
(e) The representative for the Government may file a brief in opposition to exceptions within 30 days of receiving the notice of appeal and accompanying brief.
(f) There is no right to appear personally before the authority head.
(g) There is no right to appeal any interlocutory ruling by the ALJ.
(h) In reviewing the initial decision, the authority head shall not consider any objection that was not raised before the ALJ unless a demonstration is any objection that was not raised before the ALJ unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection.
(i) If any party demonstrates to the satisfaction of the authority head that additional evidence not presented at such hearing is material and that there were reasonable grounds for the failure to present such evidence at such hearing, the authority head shall remand the matter to the ALJ for consideration of such additional evidence.
(j) The authority head may affirm, reduce, reverse, compromise, remand, or settle any penalty or assessment, determined by the ALJ in any initial decision.
(k) The authority head shall promptly serve each party to the appeal with a copy of the decision of the authority head and a statement describing the right of the defendant to seek judicial review.
(l) Unless a petition for review is filed as provided in 31 U.S.C. 3805 after a defendant has exhausted all administrative remedies under this part and within 60 days after the date on which the authority head serves the defendant with a copy of the authority head’s decision, a determination that a defendant is liable under § 35.3 is final and is not subject to judicial review.
§ 35.40 Stays ordered by the Department of Justice.
If at any time the Attorney General or an Assistant Attorney General designated by the Attorney General transmits to the authority head a written finding that continuation of the administrative process described in this part with respect to a claim or statement may adversely affect any pending or potential criminal or civil action related to such claim or statement, the authority head shall stay the process immediately. The authority head may order the process resumed only upon receipt of the written authorization of the Attorney General.
§ 35.41 Stay pending appeal.
(a) An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the authority head.
(b) No administrative stay is available following a final decision of the authority head.
§ 35.42 Judicial review.
Section 3805 of title 31, United States Code, authorizes judicial review by an appropriate United States District Court of a final decision of the authority head imposing penalties or assessments under this part and specifies the procedures for such review.
§ 35.43 Collection of civil penalties and assessments.
Sections 3806 and 3808(b) of title 31, United States Code, authorize actions for collection of civil penalties and assessments imposed under this part and specify the procedures for such actions.
§ 35.44 Right to administrative offset.
The amount of any penalty or assessment which has become final, or for which a judgment has been entered under § 35.42 or § 35.43, or any amount agreed upon in a compromise or settlement under § 35.46, may be collected by administrative offset under 31 U.S.C. 3716, except that an administrative offset may not be made under this subsection against a refund of an overpayment of federal taxes, then or later owing by the United States to the defendant.
§ 35.45 Deposit in Treasury of United States.
All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the Treasury of the United States, except as provided in 31 U.S.C. 3806(g).
§ 35.46 Compromise or settlement.
(a) Parties may make offers of compromise or settlement at any time.
(b) The reviewing official has the exclusive authority to compromise or settle a case under this part at any time after the date on which the reviewing official is permitted to issue a complaint and before the date on which the ALJ issues an initial decision.
(c) The authority head has exclusive authority to compromise or settle a case under this part at any time after the date on which the ALJ issues an initial decision, except during the pendency of any review under § 35.42 or during the pendency of any action to collect penalties and assessments under § 35.43.
(d) The Attorney General has exclusive authority to compromise or settle a case under this part during the pendency of any review under § 35.42 or of any action to recover penalties and assessments under 31 U.S.C. 3806.
(e) The investigating official may recommend settlement terms to the reviewing official, the authority head, or the Attorney General, as appropriate. The reviewing official may recommend settlement terms to the authority head, or the Attorney General, as appropriate.
(f) Any compromise or settlement must be in writing.
§ 35.47 Limitations.
(a) The notice of hearing with respect to a claim or statement must be served in the manner specified in § 35.8 within six years after the date on which such claim or statement is made.
(b) If the defendant fails to file a timely answer, service of notice under § 35.10(b) shall be deemed a notice of hearing for purposes of this section.
(c) The statute of limitations may be extended by agreement of the parties.
SUBCHAPTER E – VISAS
PART 40 – REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
Subpart A – General Provisions
§ 40.1 Definitions.
The following definitions supplement definitions contained in the Immigration and Nationality Act (INA). As used in the regulations in parts 40, 41, 42, 43 and 45 of this subchapter, the term:
(a)(1) Accompanying or accompanied by means not only an alien in the physical company of a principal alien but also an alien who is issued an immigrant visa within 6 months of:
(i) The date of issuance of a visa to the principal alien;
(ii) The date of adjustment of status in the United States of the principal alien; or
(iii) The date on which the principal alien personally appears and registers before a consular officer abroad to confer alternate foreign state chargeability or immigrant status upon a spouse or child.
(2) An “accompanying” relative may not precede the principal alien to the United States.
(b) Act means the Immigration and Nationality Act (or INA), as amended.
(c) Competent officer, as used in INA 101(a)(26), means a “consular officer” as defined in INA 101(a)(9).
(d) Consular officer, as defined in INA 101(a)(9) includes commissioned consular officers and the Deputy Assistant Secretary for Visa Services, and such other officers as the Deputy Assistant Secretary may designate for the purpose of issuing nonimmigrant and immigrant visas, but does not include a consular agent, an attaché or an assistant attaché. For purposes of this regulation, the term “other officers” includes civil service visa examiners employed by the Department of State for duty at visa-issuing offices abroad, upon certification by the chief of the consular section under whose direction such examiners are employed that the examiners are qualified by knowledge and experience to perform the functions of a consular officer in the issuance or refusal of visas. The designation of visa examiners shall expire upon termination of the examiners’ employment for such duty and may be terminated at any time for cause by the Deputy Assistant Secretary. The assignment by the Department of any foreign service officer to a diplomatic or consular office abroad in a position administratively designated as requiring, solely, partially, or principally, the performance of consular functions, and the initiation of a request for a consular commission, constitutes designation of the officer as a “consular officer” within the meaning of INA 101(a)(9).
(e) Department means the Department of State of the United States of America.
(f) Dependent area means a colony or other component or dependent area overseas from the governing foreign state.
(g) DHS means the Department of Homeland Security.
(h) Documentarily qualified means that the alien has reported that all the documents specified by the consular officer as sufficient to meet the requirements of INA 222(b) have been obtained, and the consular office has completed the necessary clearance procedures. This term is used only with respect to the alien’s qualification to apply formally for an immigrant visa; it bears no connotation that the alien is eligible to receive a visa.
(i) Entitled to immigrant classification means that the alien:
(1) Is the beneficiary of an approved petition granting immediate relative or preference status;
(2) Has satisfied the consular officer as to entitlement to special immigrant status under INA 101(a)(27) (A) or (B);
(3) Has been selected by the annual selection system to apply under INA 203(c); or
(4) Is an alien described in § 40.51(c).
(j) Foreign state, for the purposes of alternate chargeability pursuant to INA 202(b), is not restricted to those areas to which the numerical limitation prescribed by INA 202(a) applies but includes dependent areas, as defined in this section.
(k) INA means the Immigration and Nationality Act, as amended.
(l) Make or file an application for a visa means:
(1) For a nonimmigrant visa applicant, submitting for formal adjudication by a consular officer of an electronic application, Form DS-160, signed electronically by clicking the box designated “Sign Application” in the certification section of the application or, as directed by a consular officer, a completed Form DS-156, with any required supporting documents and biometric data, as well as the requisite processing fee or evidence of the prior payment of the processing fee when such documents are received and accepted for adjudication by the consular officer.
(2) For an immigrant visa applicant, personally appearing before a consular officer and verifying by oath or affirmation the statements contained on Form DS-230 or Form DS-260 and in all supporting documents, having previously submitted all forms and documents required in advance of the appearance and paid the visa application processing fee.
(m) Native means born within the territory of a foreign state, or entitled to be charged for immigration purposes to that foreign state pursuant to INA section 202(b).
(n) Not subject to numerical limitation means that the alien is entitled to immigrant status as an immediate relative within the meaning of INA 201(b)(2)(i), or as a special immigrant within the meaning of INA 101(a)(27) (A) and (B), unless specifically subject to a limitation other than under INA 201(a), (b), or (c).
(o) Parent, father, and mother, as defined in INA 101(b)(2), are terms which are not changed in meaning if the child becomes 21 years of age or marries.
(p) Port of entry means a port or place designated by the DHS at which an alien may apply to DHS for admission into the United States.
(q) Principal alien means an alien from whom another alien derives a privilege or status under the law or regulations.
(r) Regulation means a rule which is established under the provisions of INA 104(a) and is duly published in the
(s) Son or daughter includes only a person who would have qualified as a “child” under INA 101(b)(1) if the person were under 21 and unmarried.
(t) Western Hemisphere means North America (including Central America), South America and the islands immediately adjacent thereto including the places named in INA 101(b)(5).
§ 40.2 Documentation of nationals.
(a) Nationals of the United States. A national of the United States shall not be issued a visa or other documentation as an alien for entry into the United States.
(b) Former Nationals of the United States. A former national of the United States who seeks to enter the United States must comply with the documentary requirements applicable to aliens under the INA.
§ 40.3 Entry into areas under U.S. administration.
An immigrant or nonimmigrant seeking to enter an area which is under U.S. administration but which is not within the “United States”, as defined in INA 101(a)(38), is not required by the INA to be documented with a visa unless the authority contained in INA 215 has been invoked.
§ 40.4 Furnishing records and information from visa files for court proceedings.
Upon receipt of a request for information from a visa file or record for use in court proceedings, as contemplated in INA 222(f), the consular officer must, prior to the release of the information, submit the request together with a full report to the Department.
§ 40.5 Limitations on the use of National Crime Information Center (NCIC) criminal history information.
(a) Authorized access. The FBI’s National Crime Information Center (NCIC) criminal history records are law enforcement sensitive and can only be accessed by authorized consular personnel with visa processing responsibilities.
(b) Use of information. NCIC criminal history record information shall be used solely to determine whether or not to issue a visa to an alien or to admit an alien to the United States. All third party requests for access to NCIC criminal history record information shall be referred to the FBI.
(c) Confidentiality and protection of records. To protect applicants’ privacy, authorized Department personnel must secure all NCIC criminal history records, automated or otherwise, to prevent access by unauthorized persons. Such criminal history records must be destroyed, deleted or overwritten upon receipt of updated versions.
§ 40.6 Basis for refusal.
A visa can be refused only upon a ground specifically set out in the law or implementing regulations. The term “reason to believe”, as used in INA 221(g), shall be considered to require a determination based upon facts or circumstances which would lead a reasonable person to conclude that the applicant is ineligible to receive a visa as provided in the INA and as implemented by the regulations. Consideration shall be given to any evidence submitted indicating that the ground for a prior refusal of a visa may no longer exist. The burden of proof is upon the applicant to establish eligibility to receive a visa under INA 212 or any other provision of law or regulation.
§§ 40.7-40.8 [Reserved]
§ 40.9 Classes of inadmissible aliens.
Subparts B through L describe classes of inadmissible aliens who are ineligible to receive visas and who shall be ineligible for admission into the United States, except as otherwise provided in the Immigration and Nationality Act, as amended.
Subpart B – Medical Grounds of Ineligibility
§ 40.11 Medical grounds of ineligibility.
(a) Decision on eligibility based on findings of medical doctor. A finding of a panel physician designated by the post in whose jurisdiction the examination is performed pursuant to INA 212(a)(1) shall be binding on the consular officer, except that the officer may refer a panel physician finding in an individual case to USPHS for review.
(b) Waiver of ineligibility – INA 212(g). If an immigrant visa applicant is inadmissible under INA 212(a)(1)(A)(i), (ii), or (iii) but is qualified to seek the benefits of INA 212(g)(1)(A) or (B), 212(g)(2)(C), or 212(g)(3), the consular officer shall inform the alien of the procedure for applying to DHS for relief under the applicable provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(g), unless the consular officer has been delegated authority by the Secretary of Homeland Security to grant the particular waiver under INA 212(g).
(c) Waiver authority – INA 212(g)(2)(A) and (B). The consular officer may waive section 212(a)(1)(A)(ii) visa ineligibility if the alien qualifies for such waiver under the provisions of INA 212(g)(2)(A) or (B).
§§ 40.12-40.19 [Reserved]
Subpart C – Criminal and Related Grounds – Conviction of Certain Crimes
§ 40.21 Crimes involving moral turpitude and controlled substance violators.
(a) Crimes involving moral turpitude – (1) Acts must constitute a crime under criminal law of jurisdiction where they occurred. A Consular Officer may make a finding of ineligibility under INA 212(a)(2)(A)(i)(I) based upon an alien’s admission of the commission of acts which constitute the essential elements of a crime involving moral turpitude, only if the acts constitute a crime under the criminal law of the jurisdiction where they occurred. However, a Consular Officer must base a determination that a crime involves moral turpitude upon the moral standards generally prevailing in the United States.
(2) Conviction for crime committed under age 18. (i) An alien will not be ineligible to receive a visa under INA 212(a)(2)(A)(i)(I) by reason of any offense committed:
(A) Prior to the alien’s fifteenth birthday, or
(B) Between the alien’s fifteenth and eighteenth birthdays unless such alien was tried and convicted as an adult for a felony involving violence as defined in section 1(1) and section 16 of Title 18 of the United States Code.
(ii) An alien tried and convicted as an adult for a violent felony offense, as so defined, committed after having attained the age of fifteen years, will be subject to the provisions of INA 212(a)(2)(A)(i)(I) regardless of whether at the time of conviction juvenile courts existed within the convicting jurisdiction.
(3) Two or more crimes committed under age 18. An alien convicted of a crime involving moral turpitude or admitting the commission of acts which constitute the essential elements of such a crime and who has committed an additional crime involving moral turpitude shall be ineligible under INA 212(a)(2)(A)(i)(I), even though the crimes were committed while the alien was under the age of 18 years.
(4) Conviction in absentia. A conviction in absentia of a crime involving moral turpitude does not constitute a conviction within the meaning of INA 212(a)(2)(A)(i)(I).
(5) Effect of pardon by appropriate U.S. authorities/foreign states. An alien shall not be considered ineligible under INA 212(a)(2)(A)(i)(I) by reason of a conviction of a crime involving moral turpitude for which a full and unconditional pardon has been granted by the President of the United States, by the Governor of a State of the United States, by the former High Commissioner for Germany acting pursuant to Executive Order 10062, or by the United States Ambassador to the Federal Republic of Germany acting pursuant to Executive Order 10608. A legislative pardon or a pardon, amnesty, expungement of penal record or any other act of clemency granted by a foreign state shall not serve to remove a ground of ineligibility under INA 212(a)(2)(A)(i)(I).
(6) Political offenses. The term “purely political offense”, as used in INA 212(a)(2)(A)(i)(I), includes offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities.
(7) Waiver of ineligibility – INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(2)(A)(i)(I) but is qualified to seek the benefits of INA 212(h), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(h).
(b) Controlled substance violators – (1) Date of conviction not pertinent. An alien shall be ineligible under INA 212(a)(2)(A)(i)(II) irrespective of whether the conviction for a violation of or for conspiracy to violate any law or regulation relating to a controlled substance, as defined in the Controlled Substance Act (21 U.S.C. 802), occurred before, on, or after October 27, 1986.
(2) Waiver of ineligibility – INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(2)(A)(i)(II) but is qualified to seek the benefits of INA 212(h), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(h).
§ 40.22 Multiple criminal convictions.
(a) Conviction(s) for crime(s) committed under age 18. An alien shall not be ineligible to receive a visa under INA 212(a)(2)(B) by reason of any offense committed prior to the alien’s fifteenth birthday. Nor shall an alien be ineligible under INA 212(a)(2)(B) by reason of any offense committed between the alien’s fifteenth and eighteenth birthdays unless such alien was tried and convicted as an adult for a felony involving violence as defined in section 1(l) and section 16 of Title 18 of the United States Code. An alien, tried and convicted as an adult for a violent felony offense, as so defined, committed after having attained the age of fifteen years, and who has also been convicted of at least one other such offense or any other offense committed as an adult, shall be subject to the provisions of INA 212(a)(2)(B) regardless of whether at that time juvenile courts existed within the jurisdiction of the conviction.
(b) Conviction in absentia. A conviction in absentia shall not constitute a conviction within the meaning of INA 212(a)(2)(B).
(c) Effect of pardon by appropriate U.S. authorities/foreign states. An alien shall not be considered ineligible under INA 212(a)(2)(B) by reason in part of having been convicted of an offense for which a full and unconditional pardon has been granted by the President of the United States, by the Governor of a State of the United States, by the former High Commissioner for Germany acting pursuant to Executive Order 10062, or by the United States Ambassador to the Federal Republic of Germany acting pursuant to Executive Order 10608. A legislative pardon or a pardon, amnesty, expungement of penal record or any other act of clemency granted by a foreign state shall not serve to remove a ground of ineligibility under INA 212(a)(2)(B).
(d) Political offense. The term “purely political offense”, as used in INA 212(a)(2)(B), includes offenses that resulted in convictions obviously based on fabricated charges or predicated upon repressive measures against racial, religious, or political minorities.
(e) Waiver of ineligibility – INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(2)(B) but is qualified to seek the benefits of INA 212(h), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(h).
§ 40.23 Controlled substance traffickers. [Reserved]
§ 40.24 Prostitution and commercialized vice.
(a) Activities within 10 years preceding visa application. An alien shall be ineligible under INA 212(a)(2)(D) only if –
(1) The alien is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution, or the alien directly or indirectly procures or attempts to procure, or procured or attempted to procure or to import prostitutes or persons for the purposes of prostitution, or receives or received, in whole or in part, the proceeds of prostitution; and
(2) The alien has performed one of the activities listed in § 40.24(a)(1) within the last ten years.
(b) Prostitution defined. The term “prostitution” means engaging in promiscuous sexual intercourse for hire. A finding that an alien has “engaged” in prostitution must be based on elements of continuity and regularity, indicating a pattern of behavior or deliberate course of conduct entered into primarily for financial gain or for other considerations of material value as distinguished from the commission of casual or isolated acts.
(c) Where prostitution not illegal. An alien who is within one or more of the classes described in INA 212(a)(2)(D) is ineligible to receive a visa under that section even if the acts engaged in are not prohibited under the laws of the foreign country where the acts occurred.
(d) Waiver of ineligibility – INA 212(h). If an immigrant visa applicant is ineligible under INA 212(a)(2)(D) but is qualified to seek the benefits of INA 212(h), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(h).
§ 40.25 Certain aliens involved in serious criminal activity who have asserted immunity from prosecution. [Reserved]
§§ 40.26-40.29 [Reserved]
Subpart D – Security and Related Grounds
§ 40.31 General. [Reserved]
§ 40.32 Terrorist activities. [Reserved]
§ 40.33 Foreign policy. [Reserved]
§ 40.34 Immigrant membership in totalitarian party.
(a) Definition of affiliate. The term affiliate, as used in INA 212(a)(3)(D), means an oganization which is related to, or identified with, a proscribed association or party, including any section, subsidiary, branch, or subdivision thereof, in such close association as to evidence an adherence to or a furtherance of the purposes and objectives of such association or party, or as to indicate a working alliance to bring to fruition the purposes and objectives of the proscribed association or party. An organization which gives, loans, or promises support, money, or other thing of value for any purpose to any proscribed association or party is presumed to be an affiliate of such association or party, but nothing contained in this paragraph shall be construed as an exclusive definition of the term affiliate.
(b) Service in Armed Forces. Service, whether voluntary or not, in the armed forces of any country shall not be regarded, of itself, as constituting or establishing an alien’s membership in, or affiliation with, any proscribed party or organization, and shall not, of itself, constitute a ground of ineligibility to receive a visa.
(c) Voluntary Service in a Political Capacity. Voluntary service in a political capacity shall constitute affiliation with the political party or organization in power at the time of such service.
(d) Voluntary Membership After Age 16. If an alien continues or continued membership in or affiliation with a proscribed organization on or after reaching 16 years of age, only the alien’s activities after reaching that age shall be pertinent to a determination of whether the continuation of membership or affiliation is or was voluntary.
(e) Operation of Law Defined. The term operation of law, as used in INA 212(a)(3)(D), includes any case wherein the alien automatically, and without personal acquiescence, became a member of or affiliated with a proscribed party or organization by official act, proclamation, order, edict, or decree.
(f) Membership in Organization Advocating Totalitarian Dictatorship in the United States. In accordance with the definition of totalitarian party contained in INA 101(a)(37), a former or present voluntary member of, or an alien who was, or is, voluntarily affiliated with a noncommunist party, organization, or group, or of any section, subsidiary, branch, affiliate or subdivision thereof, which during the time of its existence did not or does not advocate the establishment in the United States of a totalitarian dictatorship, is not considered ineligible under INA 212(a)(3)(D) to receive a visa.
(g) Waiver of ineligibility – 212(a)(3)(D)(iv). lf an immigrant visa applicant is ineligible under INA 212(a)(3)(D) but is qualified to seek the benefits of INA 212(a)(3)(D)(iv), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(a)(3)(D)(iv).
§ 40.35 Participants in Nazi persecutions or genocide.
(a) Participation in Nazi persecutions. [Reserved]
(b) Participation in genocide. [Reserved]
§§ 40.36-40.39 [Reserved]
Subpart E – Public Charge
§ 40.41 Public charge.
(a) Basis for determination of ineligibility. Any determination that an alien is ineligible under INA 212(a)(4) must be predicated upon circumstances indicating that, taking into account any Affidavit of Support under section 213A of the INA that may have been filed on the alien’s behalf, the alien is likely at any time to become a public charge after admission, or, if applicable, that the alien has failed to submit a sufficient Affidavit of Support Under Section 213A of the INA as set forth in either INA 212(a)(4)(C) or 212(a)(4)(D). Consular officers will consider whether any identified third party is willing and able to financially support the alien while the alien is in the United States. When considering the likelihood of an alien becoming a public charge at any time through receipt of public benefits, as defined in paragraph (c) of this section, consular officers will use a more likely than not standard and take into account the totality of the alien’s circumstances at the time of visa application, including at a minimum: The alien’s age; health; family status; assets, resources, and financial status; and education and skills. No one enumerated factor alone, apart from the lack of a sufficient Affidavit of Support under section 213A of the Act where required, will make the alien more likely than not to become a public charge. For immigration classifications exempt from the public charge ground of ineligibility, see 8 CFR 212.23(a).
(1) The alien’s age. Consular officers will consider whether the alien’s age makes the alien more likely than not to become a public charge in the totality of the circumstances, such as by impacting the alien’s ability to work. Consular officers will consider an alien’s age between 18 and early retirement age as defined in 42 U.S.C. 416(l)(2) as a positive factor. Age is a negative factor for aliens who are under the age of 18. However, consular officers may consider other factors, such as the support provided to a minor child by a parent, legal guardian, or other source, that in the totality of the circumstances may offset the alien’s age as a negative factor. An alien’s age above early retirement age is a negative factor in the totality of the circumstances, if the consular officer believes it adversely affects the alien’s ability to obtain or perform work, or may increase the potential for healthcare related costs that would be borne by the public.
(2) The alien’s health. Consular officers will consider whether the alien’s health is a positive or negative factor in the totality of the circumstances, including whether the alien, has been diagnosed with a medical condition that is likely to require extensive medical care or institutionalization, or that will interfere with the alien’s ability to provide and care for himself or herself, to attend school, or to work, if authorized. Consular officers will consider the report of a medical examination performed by the panel physician where such examination is required, including any medical conditions noted by the panel physician. An individual with a Class B medical condition, including Class B forms of communicable diseases of public health significance, as defined in 42 CFR part 34, is not alone a determinative factor for public charge purposes. The medical condition will be taken into consideration with all factors under the totality of circumstances. In assessing the effect of the alien’s health on a public charge ineligibility determination, the consular officer will consider evidence of health insurance or the ability to pay for reasonably foreseeable medical expenses in the United States a positive factor in the totality of the circumstances.
(3) The alien’s family status. When considering an alien’s family status, consular officers will consider the size of the alien’s household, as defined in paragraph (e) of this section, and whether the alien’s household size is a positive or negative factor in the totality of the circumstances.
(4) The alien’s assets, resources, and financial status – (i) In general. Consular officers will consider, among other relevant factors, the following aspects of an alien’s assets, resources, and financial status:
(A) If the alien’s annual gross income for the alien’s household size is at least 125 percent of the most recent Federal Poverty Guidelines based on the alien’s household size (or 100 percent for an alien on active duty, other than training, in the Armed Forces), consular officers will consider the alien’s income a positive factor;
(B) If the alien’s annual household gross income is less than 125 percent of the most recent Federal Poverty Guidelines (100 percent for those on active duty, other than training, in the Armed Forces) based on the alien’s household size, consular officers will consider a total value of the household assets and resources that is at least five times the difference between the alien’s household gross income and 125 percent of the Federal Poverty Guidelines for the alien’s household size as a positive factor. However, if the alien is the spouse or child of a U.S. citizen, assets totaling three times the difference between the alien’s household gross income and 125 percent of the Federal Poverty Guidelines (100 percent for those on active duty, other than training, in the Armed Forces) for the alien’s household size is a positive factor. If the alien is a child who will be adopted in the United States and who will likely receive citizenship under section 320 of the INA, then assets equivalent to or greater than the difference between the alien’s household gross income and 125 percent the Federal Poverty Guidelines (100 percent for those on active duty, other than training, in the Armed Forces) for the alien’s household size is a positive factor.
(ii) Factors to consider. When considering an alien’s assets, resources, and financial status, consular officers must consider assets, resources, and financial status including:
(A) The alien’s household annual gross income;
(B) The alien’s cash assets and resources;
(C) Non-cash assets and resources that can be converted into cash within twelve months of the visa application;
(D) The alien’s financial liabilities;
(E) Whether the alien has applied for, been certified to receive, been approved to receive, or received one or more public benefits, as defined in paragraph (c) of this section on or after October 15, 2019, or whether the alien has disenrolled or requested to be disenrolled from such public benefits.
(F) Whether the alien has received an immigration benefit fee waiver from DHS on or after October 15, 2019, unless the fee waiver was applied for or granted as part of an application for which a public charge inadmissibility under section 212(a)(4) of the Act was not required; and
(G) Whether the alien has private health insurance or other financial resources sufficient to cover reasonably foreseeable costs related to a medical condition in the United States.
(iii) Income from illegal activities or sources. Consular officers may not consider any income from illegal activities or sources, such as proceeds from illegal gambling or drug sales, or income from any public benefit listed in paragraph (c) of this section.
(5) The alien’s education and skills. When considering an alien’s education and skills, consular officers will consider both positive and negative factors associated with whether the alien has adequate education and skills to either obtain or maintain lawful employment with an income sufficient to avoid being likely to become a public charge. In assessing whether the alien’s level of education and skills makes the alien likely to become a public charge, the consular officer must consider, among other factors, the alien’s history of employment, educational level (high school diploma, or its equivalent, or higher educational degree), any occupational skills, certifications or licenses, and English language proficiency or proficiency in languages in addition to English. Consular officers will take into positive consideration an alien who is a primary caregiver 18 years of age or older who has significant responsibility for actively caring for and managing the well-being of a minor, elderly, ill, or disabled person residing in the alien’s household, such that the alien lacks an employment history or current employment, or is not employed full time. Only one alien within a household can be considered a primary caregiver of the same individual within the household.
(6) Prospective visa classification. When considering the likelihood at any time of an alien becoming a public charge, consular officers will consider the visa classification sought.
(7) Affidavit of Support Under Section 213A of the Act. Any alien seeking an immigrant visa under INA 201(b)(2), 203(a), or 203(b), based upon a petition filed by a relative of the alien (or in the case of a petition filed under INA 203(b) by an entity in which a relative has a significant ownership interest), shall be required to present to the consular officer an Affidavit of Support Under Section 213A of the INA on a form that complies with terms and conditions established by the Secretary of Homeland Security. A properly filed, non-fraudulent, sufficient Affidavit of Support Under Section 213A of the INA, in those cases where it is required, is a positive factor in the totality of the circumstances if the sponsor is likely to actually provide the alien with the statutorily-required amount of financial support and other related considerations.
(8) Heavily weighted factors. The factors below will weigh heavily in an ineligibility determination based on public charge.
(i) Heavily weighted negative factors. The following factors will weigh heavily in favor of a finding that an alien is likely at any time in the future to become a public charge:
(A) The alien is not a full-time student and is authorized to work in his or her country of residence or the United States, as appropriate, but is unable to satisfy the consular officer that he or she is currently employed, has recent employment history, or a reasonable prospect of future employment;
(B) The alien has received or has been certified or approved to receive one or more public benefits, as defined in paragraph (c) of this section, for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months’ worth of benefits), beginning no earlier than October 15, 2019, or for more than 12 months in the aggregate within the 36 month period prior to the adjudication of the alien’s visa application, whichever is later.
(C)(1) The alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide for himself or herself, attend school, or work; and
(2) The alien has no health insurance for use in the United States and has neither the prospect of obtaining private health insurance for use in the United States, nor the financial resources to pay for reasonably foreseeable medical costs related to such medical condition;
(D) The alien was previously found inadmissible or deportable on public charge grounds by an Immigration Judge or the Board of Immigration Appeals.
(ii) Heavily weighted positive factors. The following factors will weigh heavily in favor of a finding that an alien is not likely at any time to become a public charge:
(A) The alien’s household has income, assets, resources, or support of at least 250 percent of the Federal Poverty Guidelines for the alien’s household size. Consular officers may not consider any income from illegal activities, e.g., proceeds from illegal gambling or drug sales, or any income derived from any public benefit as defined in paragraph (c) of this section;
(B) The alien is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines for the alien’s household size. Consular officers may not consider any income from illegal activities, e.g., proceeds from illegal gambling or drug sales;
(C) The alien has private health insurance (other than health insurance obtained with premium tax credits under the Affordable Care Act) for use in the United States covering the expected period of admission.
(9) Treatment of benefits received before October 15, 2019. When considering whether an alien is more likely than not to become a public charge under this section, consular officers will consider, as a negative factor, but not as a heavily weighted negative factor as described in paragraph (a)(8) of this section, any amount of cash assistance for income maintenance, including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs), and programs (including Medicaid) supporting aliens who are institutionalized for long-term care, received, or certified for receipt, before October 15, 2019.
(b) Public charge. Public charge means, for the purpose of INA 212(a)(4)(A) and (B), an alien who receives one or more public benefits, as defined in paragraph (c) of this section, for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months’ worth of benefits).
(c) Public benefit. (1) Public benefit means any of the following forms of assistance received on or after October 15, 2019:
(i) Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
(A) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
(B) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.;
(C) Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names); and
(ii) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 et seq.;
(iii) Housing Choice Voucher Program, as authorized under section 8(o) of the United States Housing Act of 1937 (42 U.S.C. 1437f);
(iv) Project-Based Rental Assistance (including Moderate Rehabilitation) authorized under section 8 of the United States Housing Act of 1937 (42 U.S.C. 1437f);
(v) Medicaid under 42 U.S.C. 1396 et seq., except for:
(A) Benefits received for an emergency medical condition as described in section 1903(v)(2)-(3) of Title XIX of the Social Security Act, 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
(B) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400 et seq.;
(C) School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law; and
(D) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy).
(vi) Public Housing under section 9 of the U.S. Housing Act of 1937 (42 U.S.C. 1437g).
(2) Public benefit, as defined in this section, does not include any form of assistance listed in paragraphs (c)(1)(i) through (vi) of this section received by an alien who at the time of receipt of the public benefit, or at the time of visa application or visa adjudication, is or was:
(i) Enlisted in the U.S. Armed Forces under the authority of 10 U.S.C. 504(b)(1)(B) or 10 U.S.C. 504(b)(2), or
(ii) Serving in active duty or in the Ready Reserve component of the U.S. Armed Forces, or
(iii) Is the spouse or child as defined in INA101(b), of an individual described in paragraph (c)(2)(i) or (ii) of this section, or of a citizen of the United States described in paragraph (c)(2)(i) or (ii).
(3) Public benefit, as defined in this section, does not include any form of assistance listed in paragraphs (c)(1)(i) through (vi) of this section received by an alien during periods in which the alien was present in the United States in an immigration category that is exempt from the public charge ground of inadmissibility, as set forth in 8 CFR 212.23(a), or for which the alien received a waiver of public charge inadmissibility from DHS. Public benefit does not include health services for immunizations and for testing and treatment of communicable diseases, including communicable diseases of public health significance as defined in 42 CFR part 34.
(4) Public benefit, as defined in this section, does not include any form of assistance listed in paragraphs (c)(1)(i) through (vi) of this section that were or will be received by:
(i) Children of U.S. citizens whose lawful admission as permanent residents and subsequent residence in the legal and physical custody of their U.S. citizen parent will result automatically in the child’s acquisition of citizenship;
(ii) Children of U.S. citizens whose lawful admission as permanent residents will result automatically in the child’s acquisition of citizenship upon finalization of adoption; or
(iii) Children of U.S. citizens who are entering the United States for the purpose of attending an interview under INA 322 in accordance with 8 CFR part 322.
(d) Alien’s household. For purposes of public charge ineligibility determinations under INA 212(a)(4):
(1) If the alien is 21 years of age or older, or under the age of 21 and married, the alien’s household includes:
(i) The alien;
(ii) The alien’s spouse, if physically residing or intending to physically reside with the alien in the United States;
(iii) The alien’s children, as defined in INA 101(b)(1), if physically residing or intending to physically reside with the alien in the United States;
(iv) The alien’s other children, as defined in INA 101(b)(1), not physically residing or not intending to physically reside with the alien for whom the alien provides or is required to provide at least 50 percent of financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the alien;
(v) Any other individuals (including a spouse not physically residing or intending to physically reside with the alien) to whom the alien provides, or is required to provide, at least 50 percent of the individual’s financial support or who are listed as dependents on the alien’s United States federal income tax return; and
(vi) Any individual who provides to the alien at least 50 percent of the alien’s financial support, or who lists the alien as a dependent on his or her federal income tax return.
(2) If the alien is a child as defined in INA 101(b)(1), the alien’s household includes the following individuals:
(i) The alien;
(ii) The alien’s children as defined in INA 101(b)(1), physically residing or intending to physically reside with the alien in the United States;
(iii) The alien’s other children as defined in INA 101(b)(1) not physically residing or intending to physically reside with the alien for whom the alien provides or is required to provide at least 50 percent of the children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the alien;
(iv) The alien’s parents, legal guardians, or any other individual providing or required to provide at least 50 percent of the alien’s financial support to the alien as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided to the alien;
(v) The alien’s parents’ or legal guardians’ other children as defined in INA 101(b)(1), physically residing or intending to physically reside with the alien in the United States;
(vi) The alien’s parents’ or legal guardians’ other children as defined in INA 101(b)(1), not physically residing or intending to physically reside with the alien for whom the parent or legal guardian provides or is required to provide at least 50 percent of the other children’s financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the parents or legal guardians; and
(vii) Any other individual to whom the alien’s parents or legal guardians provide, or are required to provide at least 50 percent of each individual’s financial support, or who is listed as a dependent on the parent’s or legal guardian’s federal income tax return.
(e) Receipt of public benefit. Receipt of public benefit occurs when a public benefit-granting agency provides a public benefit, as defined in paragraph (c) of this section, to the alien as a beneficiary, whether in the form of cash, voucher, services, or insurance coverage. Application or certification for a public benefit does not constitute receipt of public benefit, but it may be considered as a factor suggesting likelihood of future receipt. An alien’s receipt of, application for, or certification for public benefit solely on behalf of another individual does not constitute receipt of, application for, or certification for such alien.
(f) Prearranged employment. An immigrant visa applicant relying on an offer of prearranged employment to establish eligibility under INA 212(a)(4), other than an offer of employment certified by the Department of Labor pursuant to INA 212(a)(5)(A), must provide written confirmation of the relevant information sworn and subscribed to before a notary public by the employer or an authorized employee or agent of the employer. The signer’s printed name and position or other relationship with the employer must accompany the signature.
§§ 40.42-40.49 [Reserved]
Subpart F – Labor Certification and Qualification for Certain Immigrants
§ 40.51 Labor certification.
(a) INA 212(a)(5) applicable only to certain immigrant aliens. INA 212(a)(5)(A) applies only to immigrant aliens described in INA 203(b)(2) or (3) who are seeking to enter the United States for the purpose of engaging in gainful employment.
(b) Determination of need for alien’s labor skills. An alien within one of the classes to which INA 212(a)(5) applies as described in § 40.51(a) who seeks to enter the United States for the purpose of engaging in gainful employment, shall be ineligible under INA 212(a)(5)(A) to receive a visa unless the Secretary of Labor has certified to the Secretary of Homeland Security and the Secretary of State, that
(1) There are not sufficient workers in the United States who are able, willing, qualified, (or equally qualified in the case of aliens who are members of the teaching profession or who have exceptional ability in the sciences or the arts) and available at the time of application for a visa and at the place to which the alien is destined to perform such skilled or unskilled labor, and
(2) The employment of such alien will not adversely affect the wages and working conditions of the workers in the United States similarly employed.
(c) Labor certification not required in certain cases. A spouse or child accompanying or following to join an alien spouse or parent who is a beneficiary of a petition approved pursuant to INA 203(b)(2) or (3) is not considered to be within the purview of INA 212(a)(5).
§ 40.52 Unqualified physicians.
INA 212(a)(5)(B) applies only to immigrant aliens described in INA 203(b) (2) or (3).
§ 40.53 Uncertified foreign health-care workers.
(a) Subject to paragraph (b) of this section, a consular officer must not issue a visa to any alien seeking admission to the United States for the purpose of performing services in a health care occupation, other than as a physician, unless, in addition to meeting all other requirements of law and regulation, the alien provides to the officer a certification issued by the Commission On Graduates of Foreign Nursing Schools (CGFNS) or another credentialing service that has been approved by the Secretary of Homeland Security for such purpose, which certificate complies with the provisions of sections 212(a)(5)(C) and 212(r) of the Act, 8 U.S.C. 1182(a)(5)(C) and 8 U.S.C. 1182(r), respectively, and the regulations found at 8 CFR 212.15.
(b) Paragraph (a) of this section does not apply to an alien:
(1) Seeking to enter the United States in order to perform services in a non-clinical health care occupation as described in 8 CFR 212.15(b)(1); or
(2) Who is the immigrant or nonimmigrant spouse or child of a foreign health care worker and who is seeking to accompany or follow to join as a derivative applicant the principal alien to whom this section applies; or
(3) Who is applying for an immigrant or a nonimmigrant visa for any purpose other than for the purpose of seeking entry into the United States in order to perform health care services as described in 8 CFR 212.15.
§§ 40.54-40.59 [Reserved]
Subpart G – Illegal Entrants and Immigration Violators
§ 40.61 Aliens present without admission or parole.
INA 212(a)(6)(A)(i) does not apply at the time of visa issuance.
§ 40.62 Failure to attend removal proceedings.
An alien who without reasonable cause failed to attend, or to remain in attendance at, a hearing initiated on or after April 1, 1997, under INA 240 to determine inadmissibility or deportability shall be ineligible for a visa under INA 212(a)(6)(B) for five years following the alien’s subsequent departure or removal from the United States.
§ 40.63 Misrepresentation; falsely claiming citizenship.
(a) Fraud and misrepresentation and INA 212(a)(6)(C) applicability to certain refugees. An alien who seeks to procure, or has sought to procure, or has procured a visa, other documentation, or entry into the United States or other benefit provided under the INA by fraud or by willfully misrepresenting a material fact at any time shall be ineligible under INA 212(a)(6)(C); Provided, That the provisions of this paragraph are not applicable if the fraud or misrepresentation was committed by an alien at the time the alien sought entry into a country other than the United States or obtained travel documents as a bona fide refugee and the refugee was in fear of being repatriated to a former homeland if the facts were disclosed in connection with an application for a visa to enter the United States: Provided further, That the fraud or misrepresentation was not committed by such refugee for the purpose of evading the quota or numerical restrictions of the U.S. immigration laws, or investigation of the alien’s record at the place of former residence or elsewhere in connection with an application for a visa.
(b) Misrepresentation in application under Displaced Persons Act or Refugee Relief Act. Subject to the conditions stated in INA 212(a)(6)(c)(i), an alien who is found by the consular officer to have made a willful misrepresentation within the meaning of section 10 of the Displaced Persons Act of 1948, as amended, for the purpose of gaining admission into the United States as an eligible displaced person, or to have made a material misrepresentation within the meaning of section 11(e) of the Refugee Relief Act of 1953, as amended, for the purpose of gaining admission into the United States as an alien eligible thereunder, shall be considered ineligible under the provisions of INA 212(a)(6)(C).
(c) Waiver of ineligibility – INA 212(i). If an immigrant applicant is ineligible under INA 212(a)(6)(C) but is qualified to seek the benefits of INA 212(i), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(i).
§ 40.64 Stowaways.
INA 212(a)(6)(D) is not applicable at the time of visa application.
§ 40.65 Smugglers.
(a) General. A visa shall not be issued to an alien who at any time knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.
(b) Waiver of ineligibility – INA 212(d)(11). If an immigrant applicant is ineligible under INA 212(a)(6)(E) but is qualified to seek the benefits of INA 212(d)(11), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(d)(11).
§ 40.66 Subject of civil penalty.
(a) General. An alien who is the subject of a final order imposing a civil penalty for a violation under INA 274C shall be ineligible for a visa under INA 212(a)(6)(F).
(b) Waiver of ineligibility. If an applicant is ineligible under paragraph (a) of this section but appears to the consular officer to meet the prerequisites for seeking the benefits of INA 212(d)(12), the consular officer shall inform the alien of the procedure for applying to DHS for relief under that provision of law. A visa may not be issued to the alien until the consular officer has received notification from DHS of the approval of the alien’s application under INA 212(d)(12).
§ 40.67 Student visa abusers.
An alien ineligible under the provisions of INA 212(a)(6)(G) shall not be issued a visa unless the alien has complied with the time limitation set forth therein.
§ 40.68 Aliens subject to INA 222(g).
An alien who, under the provisions of INA 222(g), has voided a nonimmigrant visa by remaining in the United States beyond the period of authorized stay is ineligible for a new nonimmigrant visa unless the alien complies with the requirements in 22 CFR 41.101 (b) or (c) regarding the place of application.
§ 40.69 [Reserved]
Subpart H – Documentation Requirements
§ 40.71 Documentation requirements for immigrants.
INA 212(a)(7)(A) is not applicable at the time of visa application. (For waiver of documentary requirements for immigrants see 22 CFR 42.1 and 42.2.)
§ 40.72 Documentation requirements for nonimmigrants.
A passport which is valid indefinitely for the return of the bearer to the country whose government issued such passport shall be deemed to have the required minimum period of validity as specified in INA 212(a)(7)(B).
§§ 40.73-40.79 [Reserved]
Subpart I – Ineligible for Citizenship.
§ 40.81 Ineligible for citizenship.
An alien will be ineligible to receive an immigrant visa under INA 212(a)(8)(A) if the alien is ineligible for citizenship, including as provided in INA 314 or 315.
§ 40.82 Alien who departed the United States to avoid service in the armed forces.
(a) Applicability to immigrants. INA 212(a)(8)(A) applies to immigrant visa applicants who have departed from or remained outside the United States between September 8, 1939 and September 24, 1978, to avoid or evade training or service in the United States Armed Forces.
(b) Applicability to nonimmigrants. INA 212(a)(8)(B) applies to nonimmigrant visa applicants who have departed from or remained outside the United States between September 8, 1939 and September 24, 1978 to avoid or evade training or service in the U.S. Armed Forces except an alien who held nonimmigrant status at the time of such departure.
§§ 40.83-40.89 [Reserved]
Subpart J – Aliens Previously Removed
§ 40.91 Certain aliens previously removed.
(a) 5-year bar. An alien who has been found inadmissible, whether as a result of a summary determination of inadmissibility at the port of entry under INA 235(b)(1) or of a finding of inadmissibility resulting from proceedings under INA 240 initiated upon the alien’s arrival in the United States, shall be ineligible for a visa under INA 212(a)(9)(A)(i) for 5 years following such alien’s first removal from the United States.
(b) 10-year bar. An alien who has otherwise been removed from the United States under any provision of law, or who departed while an order of removal was in effect, is ineligible for a visa under INA 212(a)(9)(A)(ii) for 10 years following such removal or departure from the United States.
(c) 20-year bar. An alien who has been removed from the United States two or more times shall be ineligible for a visa under INA 212(a)(9)(A)(i) or INA 212(a)(9)(A)(ii), as appropriate, for 20 years following the most recent such removal or departure.
(d) Permanent bar. If an alien who has been removed has also been convicted of an aggravated felony, the alien is permanently ineligible for a visa under INA 212(a)(9)(A)(i) or 212(a)(9)(A)(ii), as appropriate.
(e) Exceptions. An alien shall not be ineligible for a visa under INA 212(a)(9)(A)(i) or (ii) if the Secretary of Homeland Security has consented to the alien’s application for admission.
§ 40.92 Aliens unlawfully present.
(a) 3-year bar. An alien described in INA 212(a)(9)(B)(i)(I) shall be ineligible for a visa for 3 years following departure from the United States.
(b) 10-year bar. An alien described in INA 212(a)(9)(B)(i)(II) shall be ineligible for a visa for 10 years following departure from the United States.
(c) Waiver. If a visa applicant is inadmissible under paragraph (a) or (b) of this section but appears to the consular officer to meet the prerequisites for seeking the benefits of INA 212(a)(9)(B)(v), the alien shall be informed of the procedure for applying to DHS for relief under that provision of law.
§ 40.93 Aliens unlawfully present after previous immigration violation.
An alien described in INA 212(a)(9)(C)(i) is permanently ineligible for a visa unless the Secretary of Homeland Security consents to the alien’s application for readmission not less than 10 years following the alien’s last departure from the United States. Such application for readmission shall be made prior to the alien’s reembarkation at a place outside the United States.
§§ 40.94-40.99 [Reserved]
Subpart K – Miscellaneous
§ 40.101 Practicing polygamists.
An immigrant alien shall be ineligible under INA 212(a)(9)(A) only if the alien is coming to the United States to practice polygamy.
§ 40.102 Guardian required to accompany excluded alien.
INA 212(a)(9)(B) is not applicable at the time of visa application.
§ 40.103 International child abduction.
An alien who would otherwise be ineligible under INA 212(a)(9)(C)(i) shall not be ineligible under such paragraph if the U.S. citizen child in question is physically located in a foreign state which is party to the Hague Convention on the Civil Aspects of International Child Abduction.
§ 40.104 Unlawful voters.
(a) Subject to paragraph (b) of this section, an alien is ineligible for a visa if the alien has voted in violation of any Federal, State, or local constitutional provision, statute, ordinance, or regulation.
(b) Such alien shall not be considered to be ineligible under paragraph (a) of this section if each natural parent of the alien (or, in the case of an adopted alien, each adoptive parent of the alien) is or was a citizen (whether by birth or naturalization), the alien permanently resided in the United States prior to attaining the age of 16, and the alien reasonably believed at the time of such violation that he or she was a citizen.
§ 40.105 Former citizens who renounced citizenship to avoid taxation.
An alien who is a former citizen of the United States, who on or after September 30, 1996, has officially renounced United States citizenship and who has been determined by the Secretary of Homeland Security to have renounced citizenship to avoid United States taxation, is ineligible for a visa under INA 212(a)(10)(E).
§§ 40.106-40.110 [Reserved]
Subpart L – Failure to Comply with INA
§ 40.201 Failure of application to comply with INA.
(a) Refusal under INA 221(g). The consular officer shall refuse an alien’s visa application under INA 221(g)(2) as failing to comply with the provisions of INA or the implementing regulations if:
(1) The applicant fails to furnish information as required by law or regulations;
(2) The application contains a false or incorrect statement other than one which would constitute a ground of ineligibility under INA 212(a)(6)(C);
(3) The application is not supported by the documents required by law or regulations;
(4) The applicant refuses to be fingerprinted as required by regulations;
(5) The necessary fee is not paid for the issuance of the visa or, in the case of an immigrant visa, for the application therefor;
(6) In the case of an immigrant visa application, the alien fails to swear to, or affirm, the application before the consular officer; or
(7) The application otherwise fails to meet specific requirements of law or regulations for reasons for which the alien is responsible.
(b) Reconsideration of refusals. A refusal of a visa application under paragraph (a)(1) of this section does not bar reconsideration of the application upon compliance by the applicant with the requirements of INA and the implementing regulations or consideration of a subsequent application submitted by the same applicant.
§ 40.202 Certain former exchange visitors.
An alien who was admitted into the United States as an exchange visitor, or who acquired such status after admission, and who is within the purview of INA 212(e) as amended by the Act of April 7, 1970, (84 Stat. 116) and by the Act of October 12, 1976, (90 Stat. 2301), is not eligible to apply for or receive an immigrant visa or a nonimmigrant visa under INA 101(a)(15) (H), (K), or (L), notwithstanding the approval of a petition on the alien’s behalf, unless:
(a) It has been established that the alien has resided and has been physically present in the country of the alien’s nationality or last residence for an aggregate of at least 2 years following the termination of the alien’s exchange visitor status as required by INA 212(e), or
(b) The foreign residence requirement of INA 212(e) has been waived by the Secretary of Homeland Security in the alien’s behalf.
§ 40.203 Alien entitled to A, E, or G nonimmigrant classification.
An alien entitled to nonimmigrant classification under INA 101(a)(15) (A), (E), or (G) who is applying for an immigrant visa and who intends to continue the activities required for such nonimmigrant classification in the United States is not eligible to receive an immigrant visa until the alien executes a written waiver of all rights, privileges, exemptions and immunities which would accrue by reason of such occupational status.
§ 40.204 [Reserved]
§ 40.205 Applicant for immigrant visa under INA 203(c).
An alien shall be ineligible to receive a visa under INA 203(c) if the alien does not have a high school education or its equivalent, as defined in 22 CFR 42.33(a)(2), or does not have, within the five years preceding the date of application for such visa, at least two years of work experience in an occupation which requires at least two years of training or experience.
§ 40.206 Frivolous applications. [Reserved]
§§ 40.207-40.210 [Reserved]
Subpart M – Waiver of Ground of Ineligibility
§ 40.301 Waiver for ineligible nonimmigrants under INA 212(d)(3)(A).
(a) Recommendations under INA 212(d)(3)(A)(i). (1) Consular officers, on their own initiative in cases they believe meet one of the criteria in paragraphs (a)(2)(i) through (v) of this section, may submit a report to the Department for possible transmission to the designated DHS office pursuant to INA 212(d)(3)(A)(i) (8 U.S.C. 1182(d)(3)(A)(i)), in the case of an alien who is classifiable as a nonimmigrant but who the consular officer knows or believes is ineligible to receive a nonimmigrant visa due to inadmissibility under the provisions of INA 212(a) (8 U.S.C. 1182(a)), other than INA 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or (3)(E)(ii).
(2) In response to a request from the Secretary of State, which shall be presumed to meet one of the criteria in paragraphs (a)(2)(i) through (v) of this section, or in response to a request from a visa applicant for a case that the consular officer has reason to believe meets one of the criteria in paragraphs (a)(2)(i) through (v), consular officers are required to submit a report to the Department for possible transmission to the designated DHS office pursuant to INA 212(d)(3)(A) in the case of an alien who is classifiable as a nonimmigrant but whom the consular officer knows or believes is ineligible to receive a nonimmigrant visa due to inadmissibility under the provisions of INA 212(a), other than INA 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or (3)(E)(ii).
(i) Foreign Relations: Refusal of the nonimmigrant visa application would become a bilateral irritant or be raised by a foreign government with a high ranking United States government official;
(ii) National security. The nonimmigrant visa applicant’s admission to the United States would advance a U.S. national security interest;
(iii) Law enforcement. The nonimmigrant visa applicant’s admission to the United States would advance an important U.S. law enforcement objective;
(iv) Significant public interest. The nonimmigrant visa applicant’s admission to the United States would advance a significant U.S. public interest, or
(v) Urgent humanitarian or medical reasons. The nonimmigrant visa applicant’s admission to the United States may be warranted due to urgent humanitarian or medical reasons.
(b) Recommendation to designated DHS office. Consular officers may recommend directly to the designated DHS office that the alien be admitted temporarily despite his or her inadmissibility in any case where a waiver may be available, unless the consular officer has reason to believe that the applicant is inadmissible under INA 212(a)(3)(A)(i), (3)(A)(ii), (3)(A)(iii), (3)(B), (3)(C), (3)(D), (3)(E)(i), (3)(E)(ii), (3)(E)(iii), (3)(F), or (3)(G) . The Department may recommend that the Secretary of Homeland Security waive ineligibility under any ground in section 212(a) of the INA, except for sections 212(a)(3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), and (3)(E)(ii).
(c) Secretary of Homeland Security may impose conditions. When the Secretary of Homeland Security authorizes the temporary admission of an inadmissible alien as a nonimmigrant and the consular officer is so informed, the consular officer may proceed with the issuance of a nonimmigrant visa to the alien, subject to the conditions, if any, imposed by the Secretary of Homeland Security.
PART 41 – VISAS: DOCUMENTATION OF NONIMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
Subpart A – Passport and Visas Not Required for Certain Nonimmigrants
§ 41.0 Definitions.
For purposes of this part and part 53:
Adjacent islands means Bermuda and the islands located in the Caribbean Sea, except Cuba.
Cruise ship means a passenger vessel over 100 gross tons, carrying more than 12 passengers for hire, making a voyage lasting more than 24 hours any part of which is on the high seas, and for which passengers are embarked or disembarked in the United States or its territories.
Ferry means any vessel operating on a pre-determined fixed schedule and route, which is being used solely to provide transportation between places that are no more than 300 miles apart and which is being used to transport passengers, vehicles, and/or railroad cars.
Pleasure vessel means a vessel that is used exclusively for recreational or personal purposes and not to transport passengers or property for hire.
United States means “United States” as defined in section 215(c) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1185(c)).
U.S. citizen means a United States citizen or a U.S. non-citizen national.
United States qualifying tribal entity means a tribe, band, or other group of Native Americans formally recognized by the United States Government which agrees to meet WHTI document standards.
§ 41.1 Exemption by law or treaty from passport and visa requirements.
Nonimmigrants in the following categories are exempt from the passport and visa requirements of INA 212(a)(7)(B)(i)(I), (i)(II):
(a) Alien members of the U.S. Armed Forces. An alien member of the U.S. Armed Forces in uniform or bearing proper military identification, who has not been lawfully admitted for permanent residence, coming to the United States under official orders or permit of such Armed Forces (Sec. 284, 86 Stat. 232; 8 U.S.C. 1354).
(b) [Reserved]
(c) Aliens entering from Guam, Puerto Rico, or the Virgin Islands. An alien departing from Guam, Puerto Rico, or the Virgin Islands of the United States, and seeking to enter the continental United States or any other place under the jurisdiction of the United States (Sec. 212, 66 Stat. 188; 8 U.S.C. 1182.)
(d) Armed Services personnel of a NATO member. Personnel belonging to the armed services of a government which is a Party to the North Atlantic Treaty and which has ratified the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, signed at London on June 19, 1951, and entering the United States under Article III of that Agreement pursuant to an individual or collective movement order issued by an appropriate agency of the sending state or of NATO (TIAS 2846; 4 U.S.T. 1792.)
(e) Armed Services personnel attached to a NATO headquarters in the United States. Personnel attached to a NATO Headquarters in the United States set up pursuant to the North Atlantic Treaty, belonging to the armed services of a government which is a Party to the Treaty and entering the United States in connection with their official duties under the provisions of the Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty (TIAS 2978; 5 U.S.T. 875.)
(f) Aliens entering pursuant to International Boundary and Water Commission Treaty. All personnel employed either directly or indirectly on the construction, operation, or maintenance of works in the United States undertaken in accordance with the treaty concluded on February 3, 1944, between the United States and Mexico regarding the functions of the International Boundary and Water Commission, and entering the United States temporarily in connection with such employment (59 Stat. 1252; TS 994.)
§ 41.2 Exemption or waiver by Secretary of State and Secretary of Homeland Security of passport and/or visa requirements for certain categories of nonimmigrants.
Pursuant to the authority of the Secretary of State and the Secretary of Homeland Security under the INA, as amended, a passport and/or visa is not required for the following categories of nonimmigrants:
(a) Canadian citizens. A visa is not required for an American Indian born in Canada having at least 50 percentum of blood of the American Indian race. A visa is not required for other Canadian citizens except for those who apply for admission in E, K, V, or S nonimmigrant classifications as provided in paragraphs (k) and (m) of this section and 8 CFR 212.1. A passport is required for Canadian citizens applying for admission to the United States, except when one of the following exceptions applies:
(1) NEXUS program. A Canadian citizen who is traveling as a participant in the NEXUS program, and who is not otherwise required to present a passport and visa as provided in paragraphs (k) and (m) of this section and 8 CFR 212.1, may present a valid NEXUS program card when using a NEXUS Air kiosk or when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry. A Canadian citizen who enters the United States by pleasure vessel from Canada under the remote inspection system may present a NEXUS program card.
(2) FAST program. A Canadian citizen who is traveling as a participant in the FAST program, and who is not otherwise required to present a passport and visa as provided in paragraphs (k) and (m) of this section and 8 CFR 212.1, may present a valid FAST card at a land or sea port-of-entry prior to entering the United States from contiguous territory or adjacent islands.
(3) SENTRI program. A Canadian citizen who is traveling as a participant in the SENTRI program, and who is not otherwise required to present a passport and visa as provided in paragraphs (k) and (m) of this section and 8 CFR 212.1, may present a valid SENTRI card at a land or sea port-of-entry prior to entering the United States from contiguous territory or adjacent islands.
(4) Canadian Indians. If designated by the Secretary of Homeland Security, a Canadian citizen holder of an Indian and Northern Affairs Canada (“INAC”) card issued by the Canadian Department of Indian Affairs and North Development, Director of Land and Trust Services (LTS) in conformance with security standards agreed upon by the Governments of Canada and the United States, and containing a machine readable zone, and who is arriving from Canada, may present the card prior to entering the United States at a land port-of-entry.
(5) Children. A child who is a Canadian citizen who is seeking admission to the United States when arriving from contiguous territory at a sea or land port-of-entry, may present certain other documents if the arrival meets the requirements described in either paragraph (i) or (ii) of this section.
(i) Children under age 16. A Canadian citizen who is under the age of 16 is permitted to present an original or a copy of his or her birth certificate, a Canadian Citizenship Card, or a Canadian Naturalization Certificate when arriving in the United States from contiguous territory at land or sea ports-of-entry.
(ii) Groups of children under age 19. A Canadian citizen who is under age 19 and who is traveling with a public or private school group, religious group, social or cultural organization, or team associated with a youth sport organization may present an original or a copy of his or her birth certificate, a Canadian Citizenship Card, or a Canadian Naturalization Certificate when applying for admission to the United States from contiguous territory at all land and sea ports-of-entry, when the group, organization or team is under the supervision of an adult affiliated with the organization and when the child has parental or legal guardian consent to travel. For purposes of this paragraph, an adult is considered to be a person who is age 19 or older. The following requirements will apply:
(A) The group, organization, or team must provide to CBP upon crossing the border, on organizational letterhead:
(1) The name of the group, organization or team, and the name of the supervising adult;
(2) A trip itinerary, including the stated purpose of the trip, the location of the destination, and the length of stay;
(3) A list of the children on the trip;
(4) For each child, the primary address, primary phone number, date of birth, place of birth, and the name of at least one parent or legal guardian.
(B) The adult leading the group, organization, or team must demonstrate parental or legal guardian consent by certifying in the writing submitted in paragraph (a)(5)(ii)(A) of this section that he or she has obtained for each child the consent of at least one parent or legal guardian.
(C) The procedure described in this paragraph is limited to members of the group, organization, or team that are under age 19. Other members of the group, organization, or team must comply with other applicable document and/or inspection requirements found in this part and 8 CFR parts 212 and 235.
(6) Enhanced driver’s license programs. Upon the designation by the Secretary of Homeland Security of an enhanced driver’s license as an acceptable document to denote identity and citizenship for purposes of entering the United States, Canadian citizens may be permitted to present these documents in lieu of a passport when seeking admission to the United States according to the terms of the agreements entered between the Secretary of Homeland Security and the entity. The Secretary of Homeland Security will announce, by publication of a notice in the
(b) Citizens of the British Overseas Territory of Bermuda. A visa is not required, except for Citizens of the British Overseas Territory of Bermuda who apply for admission in E, K, V, or S nonimmigrant visa classification as provided in paragraphs (k) and (m) of this section and 8 CFR 212.1. A passport is required for Citizens of the British Overseas Territory of Bermuda applying for admission to the United States.
(c) Bahamian nationals and British subjects resident in the Bahamas. A passport is required. A visa is not required if, prior to the embarkation of such an alien for the United States on a vessel or aircraft, the examining U.S. immigration officer at Freeport or Nassau determines that the individual is clearly and beyond a doubt entitled to admission.
(d) British subjects resident in the Cayman Islands or in the Turks and Caicos Islands. A passport is required. A visa is not required if the alien arrives directly from the Cayman Islands or the Turks and Caicos Islands and presents a current certificate from the Clerk of Court of the Cayman Islands or the Turks and Caicos Islands indicating no criminal record.
(e) Nationals and residents of the British Virgin Islands. (1) A national of the British Virgin Islands and resident therein requires a passport but not a visa if proceeding to the United States Virgin Islands.
(2) A national of the British Virgin Islands and resident therein requires a passport but does not require a visa to apply for entry into the United States if such applicant:
(i) Is proceeding by aircraft directly from St. Thomas, U.S. Virgin Islands;
(ii) Is traveling to some other part of the United States solely for the purpose of business or pleasure as described in INA 101(a)(15)(B);
(iii) Satisfies the examining U.S. Immigration officer at that port of entry that he or she is admissible in all respects other than the absence of a visa; and
(iv) Presents a current certificate issued by the Royal Virgin Islands Police Force indicating that he or she has no criminal record.
(f) Mexican nationals. (1) A visa and a passport are not required of a Mexican national who is applying for admission from Mexico as a temporary visitor for business or pleasure at a land port-of-entry, or arriving by pleasure vessel or ferry, if the national is in possession of a Form DSP-150, B-1/B-2 Visa and Border Crossing Card, containing a machine-readable biometric identifier, issued by the Department of State.
(2) A visa and a passport are not required of a Mexican national who is applying for admission from contiguous territory or adjacent islands at a land or sea port-of-entry, if the national is a member of the Texas Band of Kickapoo Indians or Kickapoo Tribe of Oklahoma who is in possession of a Form I-872 American Indian Card issued by U.S. Citizenship and Immigration Services (USCIS).
(3) A visa is not required of a Mexican national employed as a crew member on an aircraft belonging to a Mexican company authorized to engage in commercial transportation into the United States.
(4) A visa is not required of a Mexican national bearing a Mexican diplomatic or official passport who is a military or civilian official of the Federal Government of Mexico entering the United States for a stay of up to 6 months for any purpose other than on assignment as a permanent employee to an office of the Mexican Federal Government in the United States. A visa is also not required of the official’s spouse or any of the official’s dependent family members under 19 years of age who hold diplomatic or official passports and are in the actual company of the official at the time of entry. This waiver does not apply to the spouse or any of the official’s family members classifiable under INA 101(a)(15) (F) or (M).
(g) Natives and residents of the Trust Territory of the Pacific Islands. A visa and a passport are not required of a native and resident of the Trust Territory of the Pacific Islands who has proceeded in direct and continuous transit from the Trust Territory to the United States.
(h) [Reserved]
(i) Individual cases of unforeseen emergencies. Except as provided in paragraphs (a) through (h) and (j) through (l) of this section, all nonimmigrants are required to present a valid, unexpired visa and passport upon arrival in the United States. A nonimmigrant may apply for a waiver of the visa and passport requirement if, either prior to the nonimmigrant’s embarkation abroad or upon arrival at a port of entry, the Department of Homeland Security (DHS), U.S. Customs and Border Protection (CBP) district director concludes that the nonimmigrant is unable to present the required documents because of an unforeseen emergency. The CBP district director may grant a waiver of the visa or passport requirement pursuant to INA 212(d)(4)(A), without the prior concurrence of the Department of State, if the CBP district director concludes that the nonimmigrant’s claim of emergency circumstances is legitimate and that approval of the waiver would be appropriate under all of the attendant facts and circumstances.
(j) Fiance(e) of a U.S. citizen. Notwithstanding the provisions of paragraphs (a) through (h) of this section, a visa is required of an alien described in such paragraphs who is classified, or who seeks classification, under INA 101(a)(15)(K).
(k) Visa waiver program. (1) A visa is not required of any person who seeks admission to the United States for a period of 90 days or less as a visitor for business or pleasure and who is eligible to apply for admission to the United States as a Visa Waiver Program applicant. (For the list of countries whose nationals are eligible to apply for admission to the United States as Visa Waiver Program applicants, see 8 CFR 217.2(a)).
(2) An alien denied admission under the Visa Waiver Program by virtue of a ground of inadmissibility described in INA section 212(a) that is discovered at the time of the alien’s application for admission at a port of entry or through use of an automated electronic database may apply for a visa as the only means of challenging such a determination. A consular officer must accept and adjudicate any such application if the alien otherwise fulfills all of the application requirements contained in part 41, § 41.2(l)(1).
(l) Treaty Trader and Treaty Investor. Notwithstanding the provisions of paragraph (a) of this section, a visa is required of a Canadian national who is classified, or who seeks classification, under INA 101(a)(15)(E).
§ 41.3 Waiver by joint action of consular and immigration officers of passport and/or visa requirements.
Under the authority of INA 212(d)(4), the documentary requirements of INA 212(a)(7)(B)(i)(I), (i)(II) may be waived for any alien in whose case the consular officer serving the port or place of embarkation, or the Deputy Assistant Secretary of State for Visa Services or his or her designee, is satisfied after consultation with, and concurrence by, the appropriate immigration officer, that the case falls within any of the following categories:
(a) Residents of foreign contiguous territory; visa and passport waiver. An alien residing in foreign contiguous territory who does not qualify for any waiver provided in § 41.1 and is a member of a visiting group or excursion proceeding to the United States under circumstances which make it impractical to procure a passport and visa in a timely manner.
(b) Aliens for whom passport extension facilities are unavailable; passport waiver. As alien whose passport is not valid for the period prescribed in INA 212(a)(7)(B)(i)(I) and who is embarking for the United States at a port or place remote from any establishment at which the passport could be revalidated.
(c) Aliens precluded from obtaining passport extensions by foreign government restrictions; passport waiver. An alien whose passport is not valid for the period prescribed in INA 212(a)(7)(B)(i)(I) and whose government, as a matter of policy, does not revalidate passports more than 6 months prior to expiration or until the passport expires.
(d) Emergent circumstances; visa waiver. An alien well and favorably known at the consular office, who was previously issued a nonimmigrant visa which has expired, and who is proceeding directly to the United States under emergent circumstances which preclude the timely issuance of a visa.
(e) Members of armed forces and coast guards of foreign countries; visa and passport waiver. An alien on active duty in the armed forces or coast guard of a foreign country and a member of a group of such armed forces or coast guard traveling to the United States, on behalf of the alien’s government or the United Nations, under arrangements made with the appropriate military authorities of the United States, coordinated within the U.S. Government by those U.S. military authorities, and approved by the Department of State and the Department of Homeland Security for such visit.
(f) Landed immigrants in Canada; passport waiver. An alien applying for a visa at a consular office in Canada:
(1) Who is a landed immigrant in Canada;
(2) Whose port and date of expected arrival in the United States are known; and
(3) Who is proceeding to the United States under emergent circumstances which preclude the timely procurement of a passport or Canadian certificate of identity.
(g) Authorization to individual consular office; visa and/or passport waiver. An alien within the district of a consular office which has been authorized by the Department, because of unusual circumstances prevailing in that district, to join with immigration officers abroad in waivers of documentary requirements in specific categories of cases, and whose case falls within one of those categories.
Subpart B – Classification of Nonimmigrants
§ 41.11 Entitlement to nonimmigrant status.
(a) Presumption of immigrant status and burden of proof. An applicant for a nonimmigrant visa, other than an alien applying for a visa under INA 101(a)(15) (H)(i) or (L), shall be presumed to be an immigrant until the consular officer is satisfied that the alien is entitled to a nonimmigrant status described in INA 101(a)(15) or otherwise established by law or treaty. The burden of proof is upon the applicant to establish entitlement for nonimmigrant status and the type of nonimmigrant visa for which application is made.
(b) Aliens unable to establish nonimmigrant status. (1) A nonimmigrant visa shall not be issued to an alien who has failed to overcome the presumption of immigrant status established by INA 214(b).
(2) In a borderline case in which an alien appears to be otherwise entitled to receive a visa under INA 101(a)(15)(B) or (F) but the consular officer concludes that the maintenance of the alien’s status or the departure of the alien from the United States as required is not fully assured, a visa may nevertheless be issued upon the posting of a bond with the Secretary of Homeland Security under terms and conditions prescribed by the consular officer.
§ 41.12 Classification symbols.
A visa issued to a nonimmigrant alien within one of the classes described in this section shall bear an appropriate visa symbol to show the classification of the alien. The symbol shall be inserted in the space provided on the visa. The following visa symbols shall be used:
| Symbol | Class | Section of law |
|---|---|---|
| A1 | Ambassador, Public Minister, Career Diplomat or Consular Officer, or Immediate Family | 101(a)(15)(A)(i). |
| A2 | Other Foreign Government Official or Employee, or Immediate Family | 101(a)(15)(A)(ii). |
| A3 | Attendant, Servant, or Personal Employee of A1 or A2, or Immediate Family | 101(a)(15)(A)(iii). |
| B1 | Temporary Visitor for Business | 101(a)(15)(B). |
| B2 | Temporary Visitor for Pleasure | 101(a)(15)(B). |
| B1/B2 | Temporary Visitor for Business & Pleasure | 101(a)(15)(B). |
| C1 | Alien in Transit | 101(a)(15)(C). |
| C1/D | Combined Transit and Crewmember Visa | 101(a)(15)(C) and (D). |
| C2 | Alien in Transit to United Nations Headquarters District Under Sec. 11.(3), (4), or (5) of the Headquarters Agreement | 101(a)(15)(C). |
| C3 | Foreign Government Official, Immediate Family, Attendant, Servant or Personal Employee, in Transit | 212(d)(8). |
| D | Crewmember (Sea or Air) | 101(a)(15)(D). |
| E1 | Treaty Trader, Spouse or Child | 101(a)(15)(E)(i). |
| E2 | Treaty Investor, Spouse or Child | 101(a)(15)(E)(ii). |
| E3 | Australian Treaty Alien coming to the United States Solely to Perform Services in a Specialty Occupation | 101(a)(15)(E)(iii). |
| E3D | Spouse or Child of E3 | 101(a)(15)(E)(iii). |
| E3R | Returning E3 | 101(a)(15)(E)(iii). |
| F1 | Student in an academic or language training program | 101(a)(15)(F)(i). |
| F2 | Spouse or Child of F1 | 101(a)(15)(F)(ii). |
| F3 | Canadian or Mexican national commuter student in an academic or language training program | 101(a)(15)(F)(iii). |
| G1 | Principal Resident Representative of Recognized Foreign Government to International Organization, Staff, or Immediate Family | 101(a)(15)(G)(i). |
| G2 | Other Representative of Recognized Foreign Member Government to International Organization, or Immediate Family | 101(a)(15)(G)(ii). |
| G3 | Representative of Nonrecognized or Nonmember Foreign Government to International Organization, or Immediate Family | 101(a)(15)(G)(iii). |
| G4 | International Organization Officer or Employee, or Immediate Family | 101(a)(15)(G)(iv). |
| G5 | Attendant, Servant, or Personal Employee of G1 through G4, or Immediate Family | 101(a)(15)(G)(v). |
| H1B | Alien in a Specialty Occupation (Profession) | 101(a)(15)(H)(i)(b). |
| H1B1 | Chilean or Singaporean National to Work in a Specialty Occupation | 101(a)(15)(H)(i)(b1). |
| H1C | Nurse in health professional shortage area | 101(a)(15)(H)(i)(c). |
| H2A | Temporary Worker Performing Agricultural Services Unavailable in the United States | 101(a)(15)(H)(ii)(a). |
| H2B | Temporary Worker Performing Other Services Unavailable in the United States | 101(a)(15)(H)(ii)(b). |
| H3 | Trainee | 101(a)(15)(H)(iii). |
| H4 | Spouse or Child of Alien Classified H1B/B1/C, H2A/B/R, or H-3 | 101(a)(15)(H)(iv). |
| I | Representative of Foreign Information Media, Spouse and Child | 101(a)(15)(I). |
| J1 | Exchange Visitor | 101(a)(15)(J). |
| J2 | Spouse or Child of J1 | 101(a)(15)(J). |
| K1 | Fiance(e) of United States Citizen | 101(a)(15)(K)(i). |
| K2 | Child of Fiance(e) of U.S. Citizen | 101(a)(15)(K)(iii). |
| K3 | Spouse of U.S. citizen awaiting availability of immigrant visa | 101(a)(15)(K)(ii). |
| K4 | Child of K3 | 101(a)(15)(K)(iii). |
| L1 | Intracompany Transferee (Executive, Managerial, and Specialized Knowledge Personnel Continuing Employment with International Firm or Corporation) | 101(a)(15)(L). |
| L2 | Spouse or Child of Intracompany Transferee | 101(a)(15)(L). |
| M1 | Vocational Student or Other Nonacademic Student | 101(a)(15)(M)(i). |
| M2 | Spouse or Child of M1 | 101(a)(15)(M)(ii). |
| M3 | Canadian or Mexican national commuter student (Vocational student or other nonacademic student) | 101(a)(15)(M)(iii). |
| N8 | Parent of an Alien Classified SK3 or SN3 | 101(a)(15)(N)(i). |
| N9 | Child of N8 or of SK1, SK2, SK4, SN1, SN2 or SN4 | 101(a)(15)(N)(ii). |
| NATO 1 | Principal Permanent Representative of Member State to NATO (including any of its Subsidiary Bodies) Resident in the U.S. and Resident Members of Official Staff; Secretary General, Assistant Secretaries General, and Executive Secretary of NATO; Other Permanent NATO Officials of Similar Rank, or Immediate Family | Art. 12, 5 UST 1094; Art. 20, 5 UST 1098. |
| NATO 2 | Other Representative of member state to NATO (including any of its Subsidiary Bodies) including Representatives, Advisers, and Technical Experts of Delegations, or Immediate Family; Dependents of Member of a Force Entering in Accordance with the Provisions of the NATO Status-of-Forces Agreement or in Accordance with the provisions of the “Protocol on the Status of International Military Headquarters”; Members of Such a Force if Issued Visas | Art. 13, 5 UST 1094; Art. 1, 4 UST 1794; Art. 3, 4 UST 1796. |
| NATO 3 | Official Clerical Staff Accompanying Representative of Member State to NATO (including any of its Subsidiary Bodies), or Immediate Family | Art. 14, 5 UST 1096. |
| NATO 4 | Official of NATO (Other Than Those Classifiable as NATO1), or Immediate Family | Art. 18, 5 UST 1098. |
| NATO 5 | Experts, Other Than NATO Officials Classifiable Under NATO4, Employed in Missions on Behalf of NATO, and their Dependents | Art. 21, 5 UST 1100. |
| NATO 6 | Member of a Civilian Component Accompanying a Force Entering in Accordance with the Provisions of the NATO Status-of-Forces Agreement; Member of a Civilian Component Attached to or Employed by an Allied Headquarters Under the “Protocol on the Status of International Military Headquarters” Set Up Pursuant to the North Atlantic Treaty; and their Dependents | Art. 1, 4 UST 1794; Art. 3, 5 UST 877. |
| NATO 7 | Attendant, Servant, or Personal Employee of NATO1, NATO2, NATO 3, NATO4, NATO5, and NATO6 Classes, or Immediate Family | Arts. 12-20, 5 UST 1094-1098. |
| O1 | Alien with Extraordinary Ability in Sciences, Arts, Education, Business or Athletics | 101(a)(15)(O)(i). |
| O2 | Alien Accompanying and Assisting in the Artistic or Athletic Performance by O1 | 101(a)(15)(O)(ii). |
| O3 | Spouse or Child of O1 or O2 | 101(a)(15)(O)(iii). |
| P1 | Internationally Recognized Athlete or Member of Internationally Recognized Entertainment Group | 101(a)(15)(P)(i). |
| P2 | Artist or Entertainer in a Reciprocal Exchange Program | 101(a)(15)(P)(ii). |
| P3 | Artist or Entertainer in a Culturally Unique Program | 101(a)(15)(P)(iii). |
| P4 | Spouse or Child of P1, P2, or P3 | 101(a)(15)(P)(iv). |
| Q1 | Participant in an International Cultural Exchange Program | 101(a)(15)(Q)(i). |
| R1 | Alien in a Religious Occupation | 101(a)(15)(R). |
| R2 | Spouse or Child of R1 | 101(a)(15)(R). |
| S5 | Certain Aliens Supplying Critical Information Relating to a Criminal Organization or Enterprise | 101(a)(15)(S)(i). |
| S6 | Certain Aliens Supplying Critical Information Relating to Terrorism | 101(a)(15)(S)(ii). |
| S7 | Qualified Family Member of S5 or S6 | 101(a)(15)(S). |
| T1 | Victim of a severe form of trafficking in persons | 101(a)(15)(T)(i). |
| T2 | Spouse of T1 | 101(a)(15)(T)(ii). |
| T3 | Child of T1 | 101(a)(15)(T)(ii). |
| T4 | Parent of a T1 under 21 years of age | 101(a)(15)(T)(ii). |
| T5 | Unmarried Sibling under age 18 of T1 under 21 years of age | 101(a)(15)(T)(ii). |
| T6 | Adult or Minor Child of a Derivative Beneficiary of a T1 | 101(a)(15)(T)(ii). |
| TN | USMCA Professional | 214(e)(1) |
| TD | Spouse or Child of a USMCA | 214(e)(1) |
| U1 | Victim of criminal activity | 101(a)(15)(U)(i). |
| U2 | Spouse of U1 | 101(a)(15)(U)(ii). |
| U3 | Child of U1 | 101(a)(15)(U)(ii). |
| U4 | Parent of U1 under 21 years of age | 101(a)(15)(U)(ii). |
| U5 | Unmarried Sibling under age 18 of U1 under 21 years of age | 101(a)(15)(U)(ii). |
| V1 | Spouse of a Lawful Permanent Resident Alien Awaiting Availability of Immigrant Visa | 101(a)(15)(V)(i) or 101(a)(15)(V)(ii). |
| V2 | Child of a Lawful Permanent Resident Alien Awaiting Availability Of Immigrant Visa | 101(a)(15)(V)(i) or 101(a)(15)(V)(ii). |
| V3 | Child of a V1 or V2 | 203(d) & 101(a)(15)(V)(i) or 101 (a)(15)(V)(ii). |
Subpart C – Foreign Government Officials
§ 41.21 Foreign Officials – General.
(a) Definitions. In addition to pertinent INA definitions, the following definitions are applicable:
(1) Accredited, as used in INA 101(a)(15)(A), 101(a)(15)(G), and 212(d)(8), means an alien holding an official position, other than an honorary official position, with a government or international organization and possessing a travel document or other evidence of intention to enter or transit the United States to transact official business for that government or international organization.
(2) Attendants, as used in INA 101(a)(15)(A)(iii), 101(a)(15)(G)(v), and 212(d)(8), and in the definition of the NATO-7 visa symbol, means aliens paid from the public funds of a foreign government or from the funds of an international organization, accompanying or following to join the principal alien to whom a duty or service is owed.
(3) Immediate family, as used in INA 101(a)(15)(A), 101(a)(15)(G), and 212(d)(8), and in classification under the NATO visa symbols, means:
(i) The spouse who resides regularly in the household of the principal alien and is not a member of some other household;
(ii) Unmarried sons and daughters, whether by blood or adoption, who reside regularly in the household of the principal alien and who are not members of some other household, and provided that such unmarried sons and daughters are:
(A) Under the age of 21, or
(B) Under the age of 23 and in full-time attendance as students at post-secondary educational institutions; and
(iii) Other individuals who:
(A) Reside regularly in the household of the principal alien;
(B) Are not members of some other household;
(C) Are recognized as dependents of the principal alien by the sending government or international organization, as demonstrated by eligibility for rights and benefits, such as the issuance of a diplomatic or official passport, or travel or other allowances; and
(D) Are individually authorized by the Department.
(4) Servants and personal employees, as used in INA 101(a)(15)(A)(iii), 101(a)(15)(G)(v), and 212(d)(8), and in classification under the NATO-7 visa symbol, means aliens employed in a domestic or personal capacity by a principal alien, who are paid from the private funds of the principal alien and seek to enter the United States solely for the purpose of such employment.
(b) Exception to passport validity requirement for aliens in certain A, G, and NATO classes. A nonimmigrant alien for whom the passport requirement of INA 212(a)(7)(B)(i)(I) has not been waived and who is within one of the classes:
(1) Described in INA 101(a)(15)(A)(i) and (ii); or
(2) Described in INA 101(a)(15)(G)(i), (ii), (iii), and (iv); or
(3) NATO-1, NATO-2, NATO-3, NATO-4, or NATO-6 may present a passport which is valid only for a sufficient period to enable the alien to apply for admission at a port of entry prior to its expiration.
(c) Exception to passport validity requirement for foreign government officials in transit. An alien classified C-3 under INA 212(d)(8) needs to present only a valid unexpired visa and a travel document which is valid for entry into a foreign country for at least 30 days from the date of application for admission into the United States.
(d) Grounds for refusal of visas applicable to certain A, C, G, and NATO classes. (1) An A-1 or A-2 visa may not be issued to an alien the Department has determined to be persona non grata.
(2) Only the provisions of INA 212(a) cited below apply to the indicated classes of nonimmigrant visa applicants:
(i) Class A-1: INA 212(a) (3)(A), (3)(B), and (3)(C);
(ii) Class A-2: INA 212(a) (3)(A), (3)(B), and (3)(C);
(iii) Classes C-2 and C-3: INA 212(a) (3)(A), (3)(B), (3)(C), and (7)(B);
(iv) Classes G-1, G-2, G-3, and G-4: INA 212(a) (3)(A), (3)(B), and (3)(C);
(v) Classes NATO-1, NATO-2, NATO-3, NATO-4, and NATO-6: INA 212(a) (3)(A), (3)(B), and (3)(C);
(3) An alien within class A-3 or G-5 is subject to all grounds of refusal specified in INA 212 which are applicable to nonimmigrants in general.
(4) Notwithstanding the visa restrictions imposed by applicable laws and consistent with a provision in such laws providing for a regulatory exception to the visa restrictions contained therein, a visa may be issued to a visa applicant who is otherwise ineligible for a visa under such laws:
(i) To permit the United States to comply with the United Nations Headquarters Agreement and other applicable international obligations; and
(ii) To permit the United States and Burma to operate their diplomatic missions, and to permit the United States to conduct other official United States Government business in Burma.
§ 41.22 Officials of foreign governments.
(a) Criteria for classification of foreign government officials. (1) An alien is classifiable A-1 or A-2 under INA section 101(a)(15)(A) (i) or (ii) if the principal alien:
(i) Has been accredited by a foreign government recognized de jure by the United States;
(ii) Intends to engage solely in official activities for that foreign government while in the United States; and
(iii) Has been accepted by the President, the Secretary of State, or a consular officer acting on behalf of the Secretary of State.
(2) A member of the immediate family of a principal alien is classifiable A-1 or A-2 under INA section 101(a)(15)(A)(i) or (ii) if the principal alien is so classified.
(b) Classification under INA section 101(a)(15)(A). An alien entitled to classification under INA section 101(a)(15)(A) shall be classified under this section even if eligible for another nonimmigrant classification. An exception may be made where an immediate family member is classifiable as A-1 or A-2 under paragraph (a)(2) of this section is also independently classifiable as a principal under INA section 101(a)(15)(G)(i), (ii), (iii), (iv) or in NATO-1 through NATO-6 classification.
(c) Classification of attendants, servants, and personal employees. An alien is classifiable as a nonimmigrant under INA 101(a)(15)(A)(iii) if the consular officer is satisfied that the alien qualifies under those provisions.
(d) Referral to the Department of special cases concerning principal alien applicants. In any case in which there is uncertainty about the applicability of these regulations to a principal alien applicant requesting such nonimmigrant status, the matter shall be immediately referred to the Department for consideration as to whether acceptance of accreditation will be granted.
(e) Change of classification to that of a foreign government official. In the case of an alien in the United States seeking a change of nonimmigrant classification under INA 248 to a classification under INA 101(a)(15)(A) (i) or (ii), the question of acceptance of accreditation is determined by the Department.
(f) Termination of status. The Department may, in its discretion, cease to recognize as entitled to classification under INA 101(a)(15)(A) (i) or (ii) any alien who has nonimmigrant status under that provision.
(g) Classification of foreign government official. A foreign government official or employee seeking to enter the United States temporarily other than as a representative or employee of a foreign government is not classifiable under the provisions of INA 101(a)(15)(A).
(h) Courier and acting courier on official business – (1) Courier of career. An alien regularly and professionally employed as a courier by the government of the country to which the alien owes allegiance is classifiable as a nonimmigrant under INA 101(a)(15)(A)(i), if the alien is proceeding to the United States on official business for that government.
(2) Official acting as courier. An alien not regularly and professionally employed as a courier by the government of the country to which the alien owes allegiance is classifiable as a nonimmigrant under INA 101(a)(15)(A)(ii), if the alien is holding an official position and is proceeding to the United States as a courier on official business for that government.
(3) Nonofficial serving as courier. An alien serving as a courier but not regularly and professionally employed as such who holds no official position with, or is not a national of, the country whose government the alien is serving, shall be classified as a nonimmigrant under INA 101(a)(15)(B).
(i) Official of foreign government not recognized by the United States. An official of a foreign government not recognized de jure by the United States, who is proceeding to or through the United States on an official mission or to an international organization shall be classified as a nonimmigrant under INA 101(a)(15) (B), (C), or (G)(iii).
§ 41.23 Accredited officials in transit.
An accredited official of a foreign government intending to proceed in immediate and continuous transit through the United States on official business for that government is entitled to the benefits of INA 212(d)(8) if that government grants similar privileges to officials of the United States, and is classifiable C-3 under the provisions of INA 101(a)(15)(C). Members of the immediate family, attendants, servants, or personal employees of such an official receive the same classification as the principal alien.
§ 41.24 International organization aliens.
(a) Definition of international organization. “International organization” means:
(1) Any public international organization which has been designated by the President by Executive Order as entitled to enjoy the privileges, exemptions, and immunities provided for in the International Organizations Immunities Act (59 Stat. 669, 22 U.S.C. 288); and
(2) For the purpose of special immigrant status under INA 101(a)(27)(I), INTELSAT or any successor or separated entity thereof.
(b) Aliens coming to international organizations. (1) An alien is classifiable under INA 101(a)(15)(G) if the consular officer is satisfied that the alien is within one of the classes described in that section and seeks to enter or transit the United States in pursuance of official duties. If the purpose of the entry or transit is other than pursuance of official duties, the alien is not classifiable under INA section 101(a)(15)(G).
(2) An alien applying for a visa under the provisions of INA section 101(a)(15)(G) may not be refused solely on the grounds that the applicant is not a national of the country whose government the applicant represents.
(3) An alien seeking to enter the United States as a foreign government representative to an international organization, who is also proceeding to the United States on official business as a foreign government official within the meaning of INA section 101(a)(15)(A), shall be issued a visa under that section, if otherwise qualified.
(4) An alien not classifiable under INA section 101(a)(15)(A) or in NATO-1 through NATO-6 classification but entitled to classification under INA section 101(a)(15)(G) shall be classified under section 101(a)(15)(G), even if also eligible for another nonimmigrant classification. An alien classified under INA section 101(a)(15)(G) as an immediate family member of a principal alien classifiable G-1, G-2, G-3 or G-4, may continue to be so classified even if he or she obtains employment subsequent to his or her initial entry into the United States that would allow classification under INA section 101(a)(15)(A). Such alien shall not be classified in a category other than A or G, even if also eligible for another nonimmigrant classification.
(c) Officers and employees of privatized INTELSAT, their family members and domestic servants. (1) Officers and employees of privatized INTELSAT who both were employed by INTELSAT, and held status under INA 101(a)(15)(G)(iv) for at least six months prior to privatization on July 17, 2001, will continue to be so classifiable for so long as they are officers or employees of INTELSAT or a successor or separated entity thereof.
(2) Aliens who had had G-4 status as officers and employees of INTELSAT but became officers or employees of a successor or separated entity of INTELSAT after at least six months of such employment, but prior to and in anticipation of privatization and subsequent to March 17, 2000, will also continue to be classifiable under INA 101(a)(15)(G)(iv) for so long as that employment continues.
(3) Family members of officers and employees described in paragraphs (c)(1) and (2) of this section who qualify as “immediate family” under § 41.21(a)(3) and who are accompanying or following to join the principal are also classifiable under INA 1010(a)(15)(G)(iv) for so long as the principal is so classified.
(4) Attendants, servants, and personal employees of officers and employees described in paragraphs (c)(1) and (2) of this section are not eligible for classification under INA 101(a)(15)(G)(v), given that the officers and employees described in paragraphs (c)(1) and (2) of this section are not officers or employees of an “international organization” for purposes of INA 101(a)(15)(G).
§ 41.25 NATO representatives, officials, and employees.
(a) Classification. An alien shall be classified under the symbol NATO-1, NATO-2, NATO-3, NATO-4, or NATO-5 if the consular officer is satisfied that the alien is seeking admission to the United States under the applicable provision of the Agreement on the Status of the North Atlantic Treaty Organization, National Representatives and International Staff, or is a member of the immediate family of an alien classified NATO-1 through NATO-5. (See § 41.12 for classes of aliens entitled to classification under each symbol.)
(b) Armed services personnel. Armed services personnel entering the United States in accordance with the provisions of the Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces or in accordance with the provisions of the Protocol on the Status of International Military Headquarters Set Up Pursuant to the North Atlantic Treaty may enter the United States under the appropriate treaty waiver of documentary requirements contained in § 41.1 (d) or (e). If a visa is issued it is classifiable under the NATO-2 symbol.
(c) Dependents of armed services personnel. Dependents of armed services personnel referred to in paragraph (b) of this section shall be classified under the symbol NATO-2.
(d) Members of civilian components and dependents. Alien members of a civilian component accompanying a force entering in accordance with the provisions of the NATO Status-of-Forces Agreement, and dependents, or alien members of a civilian component attached to or employed by an Allied Headquarters under the Protocol on the Status of International Military Headquarters, and dependents shall be classified under the symbol NATO-6.
(e) Attendant, servant, or personal employee of an alien classified NATO-1 through NATO-6. An alien attendant, servant, or personal employee of an alien classified NATO-1 through NATO-6, and any member of the immediate family of such attendant, servant, or personal employee, shall be classified under the symbol NATO-7.
§ 41.26 Diplomatic visas.
(a) Definitions. (1) Diplomatic passport means a national passport bearing that title and issued by a competent authority of a foreign government.
(2) Diplomatic visa means any nonimmigrant visa, regardless of classification, which bears that title and is issued in accordance with the regulations of this section.
(3) Equivalent of a diplomatic passport means a passport that:
(i) Is issued by a competent authority that does not issue diplomatic passports and
(ii) Has been designated by the Secretary as the equivalent of a diplomatic passport.
(b) Place of application. With the exception of certain aliens in the United States issued nonimmigrant visas by the Department under the provisions of § 41.111(b), application for a diplomatic visa shall be made at a diplomatic mission or at a consular office authorized to issue diplomatic visas, regardless of the nationality or residence of the applicant.
(c) Classes of aliens eligible to receive diplomatic visas. A nonimmigrant alien who presents a diplomatic passport or its equivalent shall, if otherwise qualified, be eligible to receive a diplomatic visa if:
(1) The nonimmigrant alien is within one of the following categories, irrespective of the classification of the visa under § 41.12:
(i) Heads of states and their alternates;
(ii) Members of a reigning royal family;
(iii) Governors-general, governors, high commissioners, and similar high administrative or executive officers of a territorial unit, and their alternates;
(iv) Cabinet ministers and their assistants holding executive or administrative positions not inferior to that of the head of a departmental division, and their alternates;
(v) Presiding officers of chambers of national legislative bodies;
(vi) Justices of the highest national court of a foreign country;
(vii) Ambassadors, public ministers, other officers of the diplomatic service and consular officers of career;
(viii) Military officers holding a rank not inferior to that of a brigadier general in the United States Army or Air Force and Naval officers holding a rank not inferior to that of a rear admiral in the United States Navy;
(ix) Military, naval, air and other attaché and assistant attaché assigned to a foreign diplomatic mission;
(x) Officers of foreign-government delegations to international organizations so designated by Executive Order;
(xi) Officers of foreign-government delegations to, and officers of, international bodies of an official nature, other than international organizations so designated by Executive Order;
(xii) Officers of a foreign government proceeding to the United States on a temporary basis or through the United States in the performance of their official duties;
(xiii) Officers of foreign-government delegations proceeding to or from a specific international conference of an official nature;
(xiv) Members of the immediate family of a principal alien who is within one of the classes described in paragraphs (c)(1)(i) through (xi) of this section;
(xv) Members of the immediate family accompanying or following to join the principal alien who is within one of the classes described in paragraphs (c)(1)(xii) and (c)(1)(xiii) of this section;
(xvi) Diplomatic couriers proceeding to or through the United States in the performance of their official duties; or
(2) The alien is classifiable as a G-4 and is accompanying any of these officers:
(i) The Secretary General of the United Nations;
(ii) An Under Secretary General of the United Nations;
(iii) An Assistant Secretary General of the United Nations;
(iv) The Administrator or the Deputy Administrator of the United Nations Development Program;
(v) An Assistant Administrator of the United Nations Development Program;
(vi) The Executive Director of the:
(A) United Nations Children’s Fund;
(B) United Nations Institute for Training and Research;
(C) United Nations Industrial Development Organization;
(vii) The Executive Secretary of the:
(A) United Nations Economic Commission for Africa;
(B) United Nations Economic Commission for Asia and the Far East;
(C) United Nations Economic Commission for Latin America;
(D) United Nations Economic Commission for Europe;
(viii) The Secretary General of the United Nations Conference on Trade and Development;
(ix) The Director General of the Latin American Institute for Economic and Social Planning;
(x) The United Nations High Commissioner for Refugees;
(xi) The United Nations Commissioner for Technical Cooperation;
(xii) The Commissioner General of the United Nations Relief and Works Agency for Palestine Refugees in the Near East;
(xiii) Members of the immediate family accompanying or following to join any principal nonimmigrant alien listed in paragraphs (c)(2)(i) through (xii) of this section.
(3) Other individual aliens or classes of aliens are eligible to receive diplomatic visas upon authorization of the Department, the Chief of a U.S. Diplomatic Mission, the Deputy Chief of Mission, the Counselor for Consular Affairs or the principal officer of a consular post not under the jurisdiction of a diplomatic mission.
§ 41.27 Official visas.
(a) Definition. Official visa means any nonimmigrant visa, regardless of classification, which bears that title and is issued in accordance with these regulations.
(b) Place of application. Official visas are ordinarily issued only when application is made in the consular district of the applicant’s residence. When directed by the Department, or in the discretion of the consular officer, official visas may be issued when application is made in a consular district in which the alien is physically present but does not reside. Certain aliens in the United States may be issued official visas by the Department under the provisions of § 41.111(b).
(c) Classes of aliens eligible to receive official visas. (1) A nonimmigrant within one of the following categories who is not eligible to receive a diplomatic visa shall, if otherwise qualified, be eligible to receive an official visa irrespective of classification of the visa under § 41.12:
(i) Aliens within a category described in § 41.26(c)(1) who are ineligible to receive a diplomatic visa because they are not in possession of a diplomatic passport or its equivalent;
(ii) Aliens classifiable under INA section 101(a)(15)(A)(i) or (ii), 8 U.S.C. 1101(a)(15)(A)(i) or (ii);
(iii) Aliens who are classifiable under INA section 101(a)(15)(G)(i), (ii), or (iv), 8 U.S.C. 1101(a)(15)(G)(i), (ii), or (iv);
(iv) Aliens who are classifiable under INA section 101(a)(15)(G)(iii), 8 U.S.C. 1101(a)(15)(G)(iii), as representatives of a foreign government traveling to an international organization so designated by Executive Order, where such foreign government is not a member of the international organization;
(v) Aliens classifiable under INA section 101(a)(15)(C), 8 U.S.C. 1101(a)(15)(C), as nonimmigrants described in INA section 212(d)(8), 8 U.S.C. 1182(d)(8);
(vi) Members and members-elect of national legislative bodies;
(vii) Justices of the lesser national and the highest state courts of a foreign country;
(viii) Officers and employees of national legislative bodies proceeding to or through the United States in the performance of their official duties;
(ix) Administrative, service, and similar employees attached to foreign-government delegations to, and employees of, international bodies of an official nature, other than international organizations so designated by Executive Order, proceeding to or through the United States in the performance of their official duties;
(x) Administrative, service, and similar employees of a foreign government proceeding to the United States on temporary duty or through the United States on a temporary basis in the performance of their official duties;
(xi) Administrative, service, and similar employees attached to foreign-government delegations proceeding to or from a specific international conference of an official nature;
(xii) Officers and employees of foreign governments recognized de jure by the United States who are stationed in foreign contiguous territories or adjacent islands;
(xiii) Members of the immediate family when accompanying or following to join a principal alien who is within one of the classes referred to or described in paragraphs (c)(1)(i) through (xii) of this section;
(2) Other individual aliens or classes of aliens are eligible to receive official visas upon the authorization of the Department, the Chief of a U.S. Diplomatic Mission, the Deputy Chief of Mission, the Counselor for Consular Affairs, or the principal officer of a consular post not under the jurisdiction of a diplomatic mission.
Subpart D – Temporary Visitors
§ 41.31 Temporary visitors for business or pleasure.
(a) Classification. An alien is classifiable as a nonimmigrant visitor for business (B-1) or pleasure (B-2) if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(B), and that:
(1) The alien intends to leave the United States at the end of the temporary stay (consular officers are authorized, if departure of the alien as required by law does not seem fully assured, to require the posting of a bond with the Secretary of Homeland Security in a sufficient sum to ensure that at the end of the temporary visit, or upon failure to maintain temporary visitor status, or any status subsequently acquired under INA 248, the alien will depart from the United States);
(2) The alien has permission to enter a foreign country at the end of the temporary stay; and
(3) Adequate financial arrangements have been made to enable the alien to carry out the purpose of the visit to and departure from the United States.
(b) Definitions. (1) The term “business,” as used in INA 101(a)(15)(B), refers to conventions, conferences, consultations and other legitimate activities of a commercial or professional nature. It does not include local employment or labor for hire. For the purposes of this section building or construction work, whether on-site or in plant, shall be deemed to constitute purely local employment or labor for hire; provided that the supervision or training of others engaged in building or construction work (but not the actual performance of any such building or construction work) shall not be deemed to constitute purely local employment or labor for hire if the alien is otherwise qualified as a B-1 nonimmigrant. An alien seeking to enter as a nonimmigrant for employment or labor pursuant to a contract or other prearrangement is required to qualify under the provisions of § 41.53. An alien of distinguished merit and ability seeking to enter the United States temporarily with the idea of performing temporary services of an exceptional nature requiring such merit and ability, but having no contract or other prearranged employment, may be classified as a nonimmigrant temporary visitor for business.
(2)(i) The term pleasure, as used in INA 101(a)(15)(B) for the purpose of visa issuance, refers to legitimate activities of a recreational character, including tourism, amusement, visits with friends or relatives, rest, medical treatment, and activities of a fraternal, social, or service nature, and does not include obtaining a visa for the primary purpose of obtaining U.S. citizenship for a child by giving birth in the United States.
(ii) Any visa applicant who seeks medical treatment in the United States under this provision shall be denied a visa under INA section 214(b) if unable to establish, to the satisfaction of a consular officer, a legitimate reason why he or she wishes to travel to the United States for medical treatment, that a medical practitioner or facility in the United States has agreed to provide treatment, and that the applicant has reasonably estimated the duration of the visit and all associated costs. The applicant also shall be denied a visa under INA section 214(b) if unable to establish to the satisfaction of the consular officer that he or she has the means derived from lawful sources and intent to pay for the medical treatment and all incidental expenses, including transportation and living expenses, either independently or with the pre-arranged assistance of others.
(iii) Any B nonimmigrant visa applicant who a consular officer has reason to believe will give birth during her stay in the United States is presumed to be traveling for the primary purpose of obtaining U.S. citizenship for the child.
§ 41.32 Nonresident alien Mexican border crossing identification cards; combined border crossing identification cards and B-1/B-2 visitor visas.
(a) Combined B-1/B-2 visitor visa and border crossing identification card (B-1/B-2 Visa/BCC) – (1) Authorization for issuance. Consular officers assigned to a consular office in Mexico designated by the Deputy Assistant Secretary for Visa Services for such purpose may issue a border crossing identification card, as that term is defined in INA 101(a)(6), in combination with a B-1/B-2 nonimmigrant visitor visa (B-1/B-2 Visa/BCC), to a nonimmigrant alien who:
(i) Is a citizen and resident of Mexico;
(ii) Seeks to enter the United States as a temporary visitor for business or pleasure as defined in INA 101(a)(15)(B) for periods of stay not exceeding six months;
(iii) Is otherwise eligible for a B-1 or a B-2 temporary visitor visa.
(2) Procedure for application. Mexican applicants shall apply for a B-1/B-2 Visa/BCC at any U.S. consular office in Mexico designated by the Deputy Assistant Secretary of State for Visa Services pursuant to paragraph (a) of this section to accept such applications. The application shall be submitted electronically on Form DS-160 or, as directed by a consular officer, on Form DS-156. If submitted electronically, it must be signed electronically by clicking the box designated “Sign Application” in the certification section of the application.
(3) Personal appearance. Each applicant shall appear in person before a consular officer to be interviewed regarding eligibility for a visitor visa, unless the consular officer waives personal appearance.
(4) Issuance and format. A B-1/B-2 Visa/BCC issued on or after April 1, 1998, shall consist of a card, Form DSP-150, containing a machine-readable biometric identifier. It shall contain the following data:
(i) Post symbol;
(ii) Number of the card;
(iii) Date of issuance;
(iv) Indicia “B-1/B-2 Visa and Border Crossing Card”;
(v) Name, date of birth, and sex of the person to whom issued; and
(vi) Date of expiration.
(b) Validity. A BCC previously issued by a consular officer in Mexico on Form I-186, Nonresident Alien Mexican Border Crossing Card, or Form I-586, Nonresident Alien Border Crossing Card, is valid until the expiration date on the card (if any) unless previously revoked, but not later than the date, currently October 1, 2001, on which a machine-readable, biometric identifier in the card is required in order for the card to be usable for entry. The BCC portion of a B-1/B-2 Visa/BCC issued to a Mexican national pursuant to provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998 is valid until the date of expiration, unless previously revoked, but not later than the date, currently October 1, 2001, on which a machine-readable, biometric identifier in the card is required in order for the card to be usable for entry.
(c) Revocation. A consular or immigration officer may revoke a BCC issued on Form I-186 or Form I-586, or a B-1/B-2 Visa/BCC under the provisions of § 41.122, or if the consular or immigration officer determines that the alien to whom any such document was issued has ceased to be a resident and/or a citizen of Mexico. Upon revocation, the consular or immigration officer shall notify the issuing consular or immigration office. If the revoked document is a card, the consular or immigration officer shall take possession of the card and physically cancel it under standard security conditions. If the revoked document is a stamp in a passport the consular or immigration officer shall write or stamp “canceled” on the face of the document.
(d) Voidance. (1) The voiding pursuant to INA 222(g) of the visa portion of a B-1/B-2 Visa/BCC issued at any time by a consular officer in Mexico under provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, also voids the BCC portion of that document.
(2) A BCC issued at any time by a consular officer in Mexico under any provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, is void if a consular or immigration officer determines that the alien has violated the conditions of the alien’s admission into the United States, including the period of stay authorized by the Secretary of Homeland Security.
(3) A consular or immigration officer shall immediately take possession of a card determined to be void under paragraphs (d) (1) or (2) of this section and physically cancel it under standard security conditions. If the document voided in paragraphs (d) (1) or (2) is in the form of a stamp in a passport the officer shall write or stamp “canceled” across the face of the document.
(e) Replacement. When a B-1/B-2 Visa/BCC issued under the provisions of this section, or a BCC or B-1/B-2 Visa/BCC issued under any provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, has been lost, mutilated, destroyed, or expired, the person to whom such card was issued may apply for a new B-1/B-2 Visa/BCC as provided in this section.
§ 41.33 Nonresident alien Canadian border crossing identification card (BCC).
(a) Validity of Canadian BCC. A Canadian BCC or the BCC portion of a Canadian B-1/B-2 Visa/BCC issued to a permanent resident of Canada pursuant to provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, is valid until the date of expiration, if any, unless previously revoked, but not later than the date, currently October 1, 2001, on which a machine readable biometric identifier is required in order for a BCC to be usable for entry.
(b) Revocation of Canadian BCC. A consular or immigration officer may revoke a BCC or a B-1/B-2 Visa/BCC issued in Canada at any time under the provisions of § 41.122, or if the consular or immigration officer determines that the alien to whom any such document was issued has ceased to be a permanent resident of Canada. Upon revocation, the consular or immigration officer shall notify the issuing consular office and if the revoked document is a card, the consular or immigration officer shall take possession of the card and physically cancel it under standard security conditions. If the revoked document is a stamp in a passport the consular or immigration officer shall write or stamp “canceled” on the face of the document.
(c) Voidance. (1) The voiding pursuant to INA 222(g) of the visa portion of a B-1/B-2 Visa/BCC issued at any time by a consular officer in Canada under provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, also voids the BCC portion of that document.
(2) A BCC issued at any time by a consular officer in Canada under any provisions of this section contained in the 22 CFR, parts 1 to 299, edition revised as of April 1, 1998, is void if a consular or immigration officer finds that the alien has violated the conditions of the alien’s admission into the United States, including the period of stay authorized by the Secretary of Homeland Security.
(3) A consular or immigration officer shall immediately take possession of a card determined to be void under paragraphs (c) (1) or (2) of this section and physically cancel it under standard security conditions. If the document voided under paragraphs (c) (1) or (2) is in the form of a stamp in a passport the officer shall write or stamp “canceled” across the face of the document.
Subpart E – Crewman and Crew-List Visas
§ 41.41 Crewmen.
(a) Alien classifiable as crewman. An alien is classifiable as a nonimmigrant crewman upon establishing to the satisfaction of the consular officer the qualifications prescribed by INA 101(a)(15)(D), provided that the alien has permission to enter some foreign country after a temporary landing in the United States, unless the alien is barred from such classification under the provisions of INA 214(f).
(b) Alien not classifiable as crewman. An alien employed on board a vessel or aircraft in a capacity not required for normal operation and service, or an alien employed or listed as a regular member of the crew in excess of the number normally required, shall not be classified as a crewman.
§ 41.42 [Reserved]
Subpart F – Business and Media Visas
§ 41.51 Treaty trader, treaty investor, or treaty alien in a specialty occupation.
(a) Treaty trader – (1) Classification. An alien is classifiable as a nonimmigrant treaty trader (E-1) if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(E)(i) and that the alien:
(i) Will be in the United States solely to carry on trade of a substantial nature, which is international in scope, either on the alien’s behalf or as an employee of a foreign person or organization engaged in trade, principally between the United States and the foreign state of which the alien is a national, (consideration being given to any conditions in the country of which the alien is a national which may affect the alien’s ability to carry on such substantial trade); and
(ii) Intends to depart from the United States upon the termination of E-1 status.
(2) Employee of treaty trader. An alien employee of a treaty trader may be classified E-1 if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. The employer must be:
(i) A person having the nationality of the treaty country, who is maintaining the status of treaty trader if in the United States or, if not in the United States, would be classifiable as a treaty trader; or
(ii) An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty trader status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty traders.
(3) Spouse and children of treaty trader. The spouse and children of a treaty trader accompanying or following to join the principal alien are entitled to the same classification as the principal alien. The nationality of a spouse or child of a treaty trader is not material to the classification of the spouse or child under the provisions of INA 101(a)(15)(E).
(4) Representative of foreign information media. Representatives of foreign information media shall first be considered for possible classification as nonimmigrants under the provisions of INA 101(a)(15)(I), before consideration is given to their possible classification as treaty traders under the provisions of INA 101(a)(15)(E) and of this section.
(5) Treaty country. A treaty country is for purposes of this section a foreign state with which a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent exists with the United States. A treaty country includes a foreign state that is accorded treaty visa privileges under INA 101(a)(15)(E) by specific legislation (other than the INA).
(6) Nationality of the treaty country. The authorities of the foreign state of which the alien claims nationality determine the nationality of an individual treaty trader. In the case of an organization, ownership must be traced as best as is practicable to the individuals who ultimately own the organization.
(7) Trade. The term “trade” as used in this section means the existing international exchange of items of trade for consideration between the United States and the treaty country. Existing trade includes successfully negotiated contracts binding upon the parties that call for the immediate exchange of items of trade. This exchange must be traceable and identifiable. Title to the trade item must pass from one treaty party to the other.
(8) Item of trade. Items that qualify for trade within these provisions include but are not limited to goods, services, technology, monies, international banking, insurance, transportation, tourism, communications, and some news gathering activities.
(9) Substantial trade. Substantial trade for the purposes of this section entails the quantum of trade sufficient to ensure a continuous flow of trade items between the United States and the treaty country. This continuous flow contemplates numerous exchanges over time rather than a single transaction, regardless of the monetary value. Although the monetary value of the trade item being exchanged is a relevant consideration, greater weight is given to more numerous exchanges of larger value. In the case of smaller businesses, an income derived from the value of numerous transactions that is sufficient to support the treaty trader and his or her family constitutes a favorable factor in assessing the existence of substantial trade.
(10) Principal trade. Trade shall be considered to be principal trade between the United States and the treaty country when over 50% of the volume of international trade of the treaty trader is conducted between the United States and the treaty country of the treaty trader’s nationality.
(11) Executive or supervisory character. The executive or supervisory element of the employee’s position must be a principal and primary function of the position and not an incidental or collateral function. Executive and/or supervisory duties grant the employee ultimate control and responsibility for the enterprise’s overall operation or a major component thereof.
(i) An executive position provides the employee great authority to determine policy of and direction for the enterprise.
(ii) A position primarily of supervisory character grants the employee supervisory responsibility for a significant proportion of an enterprise’s operations and does not generally involve the direct supervision of low-level employees.
(12) Special qualifications. Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise.
(i) The essential nature of the alien’s skills to the employing firm is determined by assessing the degree of proven expertise of the alien in the area of operations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform effectively the projected duties, and the salary the special qualifications can command. The question of special skills and qualifications must be determined by assessing the circumstances on a case-by-case basis.
(ii) Whether the special qualifications are essential will be assessed in light of all circumstances at the time of each visa application on a case-by-case basis. A skill that is unique at one point may become commonplace at a later date. Skills required to start up an enterprise may no longer be essential after initial operations are complete and are running smoothly. Some skills are essential only in the short-term for the training of locally hired employees. Long-term essentiality might, however, be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States.
(13) Labor disputes. Citizens of Canada or Mexico shall not be entitled to classification under this section if the Secretary of Homeland Security and the Secretary of Labor have certified that:
(i) There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and
(ii) The alien has failed to establish that the alien’s entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.
(b) Treaty investor – (1) Classification. An alien is classifiable as a nonimmigrant treaty investor (E’2) if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(E)(ii) and that the alien:
(i) Has invested or is actively in the process of investing a substantial amount of capital in bona fide enterprise in the United States, as distinct from a relatively small amount of capital in a marginal enterprise solely for the purpose of earning a living; and
(ii) Is seeking entry solely to develop and direct the enterprise; and
(iii) Intends to depart from the United States upon the termination of E’2 status.
(2) Employee of treaty investor. An alien employee of a treaty investor may be classified E-2 if the employee is in or is coming to the United States to engage in duties of an executive or supervisory character, or, if employed in a lesser capacity, the employee has special qualifications that make the services to be rendered essential to the efficient operation of the enterprise. The employer must be:
(i) A person having the nationality of the treaty country, who is maintaining the status of treaty investor if in the United States or, if not in the United States, who would be classifiable as a treaty investor; or
(ii) An organization at least 50% owned by persons having the nationality of the treaty country who are maintaining nonimmigrant treaty investor status if residing in the United States or, if not residing in the United States, who would be classifiable as treaty investors.
(3) Spouse and children of treaty investor. The spouse and children of a treaty investor accompanying or following to join the principal alien are entitled to the same classification as the principal alien. The nationality of a spouse or child of a treaty investor is not material to the classification of the spouse or child under the provisions of INA 101(a)(15)(E).
(4) Representative of foreign information media. Representatives of foreign information media shall first be considered for possible classification as nonimmigrants under the provisions of INA 101(a)(15)(I), before consideration is given to their possible classification as nonimmigrants under the provisions of INA 101(a)(15)(E) and of this section.
(5) Treaty country. A treaty country is for purposes of this section a foreign state with which a qualifying Treaty of Friendship, Commerce, and Navigation or its equivalent exists with the United States. A treaty country includes a foreign state that is accorded treaty visa privileges under INA 101(a)(15)(E) by specific legislation (other than the INA).
(6) Nationality of the treaty country. The authorities of the foreign state of which the alien claims nationality determine the nationality of an individual treaty investor. In the case of an organization, ownership must be traced as best as is practicable to the individuals who ultimately own the organization.
(7) Investment. Investment means the treaty investor’s placing of capital, including funds and other assets, at risk in the commercial sense with the objective of generating a profit. The treaty investor must be in possession of and have control over the capital invested or being invested. The capital must be subject to partial or total loss if investment fortunes reverse. Such investment capital must be the investor’s unsecured personal business capital or capital secured by personal assets. Capital in the process of being invested or that has been invested must be irrevocably committed to the enterprise. The alien has the burden of establishing such irrevocable commitment given to the particular circumstances of each case. The alien may use any legal mechanism available, such as by placing invested funds in escrow pending visa issuance, that would not only irrevocably commit funds to the enterprise but that might also extend some personal liability protection to the treaty investor.
(8) Bona fide enterprise. The enterprise must be a real and active commercial or entrepreneurial undertaking, producing some service or commodity for profit and must meet applicable legal requirements for doing business in the particular jurisdiction in the United States.
(9) Substantial amount of capital. A substantial amount of capital constitutes that amount that is:
(i)(A) Substantial in the proportional sense, i.e., in relationship to the total cost of either purchasing an established enterprise or creating the type of enterprise under consideration;
(B) Sufficient to ensure the treaty investor’s financial commitment to the successful operation of the enterprise; and
(C) Of a magnitude to support the likelihood that the treaty investor will successfully develop and direct the enterprise.
(ii) Whether an amount of capital is substantial in the proportionality sense is understood in terms of an inverted sliding scale; i.e., the lower the total cost of the enterprise, the higher, proportionately, the investment must be to meet these criteria.
(10) Marginal enterprise. A marginal enterprise is an enterprise that does not have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. An enterprise that does not have the capacity to generate such income but that has a present or future capacity to make a significant economic contribution is not a marginal enterprise. The projected future capacity should generally be realizable within five years from the date the alien commences normal business activity of the enterprise.
(11) Solely to develop and direct. The business or individual treaty investor does or will develop and direct the enterprise by controlling the enterprise through ownership of at least 50% of the business, by possessing operational control through a managerial position or other corporate device, or by other means.
(12) Executive or supervisory character. The executive or supervisory element of the employee’s position must be a principal and primary function of the position and not an incidental or collateral function. Executive and/or supervisory duties grant the employee ultimate control and responsibility for the enterprise’s overall operation or a major component thereof.
(i) An executive position provides the employee great authority to determine policy of and direction for the enterprise.
(ii) A position primarily of supervisory character grants the employee supervisory responsibility for a significant proportion of an enterprise’s operations and does not generally involve the direct supervision of low-level employees.
(13) Special qualifications. Special qualifications are those skills and/or aptitudes that an employee in a lesser capacity brings to a position or role that are essential to the successful or efficient operation of the enterprise.
(i) The essential nature of the alien’s skills to the employing firm is determined by assessing the degree of proven expertise of the alien in the area of operations involved, the uniqueness of the specific skill or aptitude, the length of experience and/or training with the firm, the period of training or other experience necessary to perform effectively the projected duties, and the salary the special qualifications can command. The question of special skills and qualifications must be determined by assessing the circumstances on a case-by-case basis.
(ii) Whether the special qualifications are essential will be assessed in light of all circumstances at the time of each visa application on a case-by-case basis. A skill that is unique at one point may become commonplace at a later date. Skills required to start up an enterprise may no longer be essential after initial operations are complete and are running smoothly. Some skills are essential only in the short-term for the training of locally hired employees. Long-term essentiality might, however, be established in connection with continuous activities in such areas as product improvement, quality control, or the provision of a service not generally available in the United States.
(14) Labor disputes. Citizens of Canada or Mexico shall not be entitled to classification under this section if the Secretary of Homeland Security and the Secretary of Labor have certified that:
(i) There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and
(ii) The alien has failed to establish that the alien’s entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.
(c) Nonimmigrant E-3 treaty aliens in specialty occupations – (1) Classification. An alien is classifiable as a nonimmigrant treaty alien in a specialty occupation if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(E)(iii) and that the alien:
(i) Possesses the nationality of the country statutorily designated for treaty aliens in specialty occupation status;
(ii) Satisfies the requirements of INA 214(i)(1) and the corresponding regulations defining specialty occupation promulgated by the Department of Homeland Security;
(iii) Presents to a consular officer a copy of the Labor Condition Application signed by the employer and approved by the Department of Labor, and meeting the attestation requirements of INA Section 212(t)(1);
(iv) Presents to a consular officer evidence of the alien’s academic or other qualifying credentials as required under INA 214(i)(1), and a job offer letter or other documentation from the employer establishing that upon entry into the United States the applicant will be engaged in qualifying work in a specialty occupation, as defined in paragraph (c)(1)(ii) of this section, and that the alien will be paid the actual or prevailing wage referred to in INA 212(t)(1);
(v) Has a visa number allocated under INA 214(g)(11)(B); and,
(vi) Intends to depart upon the termination of E-3 status.
(2) Spouse and children of treaty alien in a specialty occupation. The spouse and children of a treaty alien in a specialty occupation accompanying or following to join the principal alien are, if otherwise admissible, entitled to the same classification as the principal alien. A spouse or child of a principal E-3 treaty alien need not have the same nationality as the principal in order to be classifiable under the provisions of INA 101(a)(15)(E). Spouses and children of E-3 principals are not subject to the numerical limitations of INA 214(g)(11)(B).
§ 41.52 Information media representative.
(a) Representative of foreign press, radio, film, or other information media. An alien is classifiable as a nonimmigrant information media representative if the consular officer is satisfied that the alien qualifies under the provisions of INA 101(a)(15)(I) and is a representative of a foreign press, radio, film, or other information medium having its home office in a foreign country, the government of which grants reciprocity for similar privileges to representatives of such a medium having home offices in the United States.
(b) Classification when applicant eligible for both I visa and E visa. An alien who will be engaged in foreign information media activities in the United States and meets the criteria set forth in paragraph (a) of this section shall be classified as a nonimmigrant under INA 101(a)(15)(I) even if the alien may also be classifiable as a nonimmigrant under the provisions of INA 101(a)(15)(E).
(c) Spouse and children of information media representative. The spouse or child of an information media representative is classifiable under INA 101(a)(15)(I) if accompanying or following to join the principal alien.
§ 41.53 Temporary workers and trainees.
(a) Requirements for H classification. An alien shall be classifiable under INA 101(a)(15)(H) if:
(1) The consular officer is satisfied that the alien qualifies under that section; and either
(2) With respect to the principal alien, the consular officer has received official evidence of the approval by DHS, or by the Department of Labor in the case of temporary agricultural workers, of a petition to accord such classification or of the extension by DHS of the period of authorized entry in such classification; or
(3) The consular officer is satisfied the alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.
(b) Petition approval. The approval of a petition by the Department of Homeland Security or by the Department of Labor does not establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the basis of paragraph (a) to this section must not exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section.
(d) Alien not entitled to H classification. The consular officer must suspend action on this alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(H) is not entitled to the classification as approved.
(e) “Trainee” defined. The term Trainee, as used in INA 101(a)(15)(H)(iii), means a nonimmigrant alien who seeks to enter the United States temporarily at the invitation of an individual, organization, firm, or other trainer for the purpose of receiving instruction in any field of endeavor (other than graduate medical education or training), including agriculture, commerce, communication, finance, government, transportation, and the professions.
(f) Former exchange visitor. Former exchange visitors who are subject to the 2-year residence requirement of INA 212(e) are ineligible to apply for visas under INA 101(a)(15)(H) until they have fulfilled the residence requirement or obtained a waiver of the requirement.
§ 41.54 Intracompany transferees (executives, managers, and specialized knowledge employees).
(a) Requirements for L classification. An alien shall be classifiable under the provisions of INA section 101(a)(15)(L) if:
(1) The consular officer is satisfied that the alien qualifies under that section; and either
(2) In the case of an individual petition, the consular officer has received official evidence of the approval by DHS of a petition to accord such classification or of the extension by DHS of the period of authorized stay in such classification; or
(3) In the case of a blanket petition,
(i) The alien has presented to the consular officer official evidence of the approval by DHS of a blanket petition listing only those intracompany relationships and positions found to qualify under INA section 101(a)(15)(L);
(ii) The alien is otherwise eligible for L-1 classification pursuant to the blanket petition; and,
(iii) The alien requests that he or she be accorded such classification for the purpose of being transferred to, or remaining in, qualifying positions identified in such blanket petition; or
(4) The consular officer is satisfied the alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.
(b) Petition approval. The approval of a petition by DHS does not establish that the alien is eligible to receive a nonimmigrant visa.
(c) Alien not entitled to L-1 classification under individual petition. The consular officer must suspend action on the alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa as the beneficiary of an approved individual petition under INA section 101(a)(15)(L) is not entitled to such classification as approved.
(d) Labor disputes. Citizens of Canada or Mexico shall not be entitled to classification under this section if the Secretary of Homeland Security and the Secretary of Labor have certified that:
(1) There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and,
(2) The alien has failed to establish that the alien’s entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.
(e) Alien not entitled to L-1 classification under blanket petition. The consular officer shall deny L classification based on a blanket petition if the documentation presented by the alien claiming to be a beneficiary thereof does not establish to the satisfaction of the consular officer that
(1) The alien has been continuously employed by the same employer, an affiliate or a subsidiary thereof, for one year within the three years immediately preceding the application for the L visa;
(2) The alien was rendering services in a capacity that is managerial, executive, or involves specialized knowledge throughout that year; or
(3) The alien is destined to render services in such a capacity, as identified in the petition and in an organization listed in the petition.
(f) Former exchange visitor. Former exchange visitors who are subject to the two-year foreign residence requirement of INA section 212(e) are ineligible to apply for visas under INA section 101(a)(15)(L) until they have fulfilled the residence requirement or obtained a waiver of the requirement.
§ 41.55 Aliens with extraordinary ability.
(a) Requirements for O classification. An alien shall be classifiable under the provisions of INA 101(a)(15)(O) if:
(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and either
(2) With respect to the principal alien, the consular officer has received official evidence of the approval by DHS of a petition to accord such classification or of the extension by DHS of the period of authorized stay in such classification; or
(3) The consular officer is satisfied the alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.
(b) Approval of visa. The approval of a petition by DHS does not establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the basis of paragraph (a) to this section must not exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section.
(d) Alien not entitled to O classification. The consular officer must suspend action on the alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(O) is not entitled to the classification as approved.
§ 41.56 Athletes, artists and entertainers.
(a) Requirements for P classification. An alien shall be classifiable under the provisions of INA 101(a)(15)(P) if:
(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and either
(2) With respect to the principal alien, the consular officer has received official evidence of the approval by DHS of a petition to accord such classification or of the extension by DHS of the period of authorized stay in such classification; or
(3) The consular officer is satisfied the alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.
(b) Approval of visa. The approval of a petition by DHS does not establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the basis of paragraph (a) to this section must not exceed the period indicated in the petition, confirmation, or extension of stay required in paragraph (a)(2) of this section.
(d) Alien not entitled to P classification. The consular officer must suspend action on the alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(P) is not entitled to the classification as approved.
§ 41.57 International cultural exchange visitors.
(a) International cultural exchange visitors – (1) Requirements for classification under INA section 101(a)(15)(Q)(i). A consular officer may classify an alien under the provisions of INA 101(a)(15)(Q)(i) if:
(i) The consular officer is satisfied that the alien qualifies under the provisions of that section, and
(ii) The consular officer has received official evidence of the approval by DHS of a petition or the extension by DHS of the period of authorized stay in such classification.
(2) Approval of petition. DHS approval of a petition does not establish that the alien is eligible to receive a nonimmigrant visa.
(3) Validity of visa. The period of validity of a visa issued on the basis of this paragraph (a) must not exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section.
(4) Alien not entitled to Q classification. The consular officer must suspend action on the alien’s application and submit a report to the approving DHS office if the consular officer knows or has reason to believe that an alien does not qualify under INA section 101(a)(15)(Q)(i).
(b) [Reserved]
§ 41.58 Aliens in religious occupations.
(a) Requirements for “R” classification. An alien shall be classifiable under the provisions of INA 101(a)(15)(R) if:
(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and
(2) With respect to the principal alien, the consular officer has received official evidence of the approval by USCIS of a petition to accord such classification or the extension by USCIS of the period of authorized stay in such classification; or
(3) The alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.
(b) Petition approval. The approval of a petition by USCIS does not establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa issued on the basis of paragraph (a) to this section must not precede or exceed the period indicated in the petition, notification, or confirmation required in paragraph (a)(2) of this section.
(d) Aliens not entitled to classification under INA 101(a)(15)(R). The consular officer must suspend action on the alien’s application and submit a report to the approving USCIS office if the consular officer knows or has reason to believe that an alien applying for a visa under INA 101(a)(15)(R) is not entitled to the classification as approved.
§ 41.59 Professionals under the United States-Mexico-Canada Agreement (USMCA).
(a) Requirements for classification as a USMCA professional. An alien shall be classifiable under the provisions of INA 214(e) if:
(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and
(2) The alien shall have presented to the consular officer sufficient evidence of an offer of employment in the United States requiring employment of a person in a professional capacity consistent with Section D and Appendix 2 of Annex 16-A of Chapter 16 of the USMCA and sufficient evidence that the alien possesses the credentials of that profession as listed in said appendix; or
(3) The alien is the spouse or child of an alien so classified in accordance with paragraph (a)(2) of this section and is accompanying or following to join the principal alien.
(b) Visa validity. The period of validity of a visa issued pursuant to paragraph (a) of this section may not exceed the period established on a reciprocal basis.
(c) Temporary entry. Temporary entry means an entry into the United States without the intent to establish permanent residence. The alien must satisfy the consular officer that the proposed stay is temporary. A temporary period has a reasonable, finite end that does not equate to permanent residence. The circumstances surrounding an application should reasonably and convincingly indicate that the alien’s temporary work assignment in the United States will end predictably and that the alien will depart upon completion of the assignment.
(d) Labor disputes. Citizens of Canada or Mexico shall not be entitled to classification under this section if the Secretary of Homeland Security and the Secretary of Labor have certified that:
(1) There is in progress a strike or lockout in the course of a labor dispute in the occupational classification at the place or intended place of employment; and
(2) The alien has failed to establish that the alien’s entry will not affect adversely the settlement of the strike or lockout or the employment of any person who is involved in the strike or lockout.
Subpart G – Students and Exchange Visitors
§ 41.61 Students – academic and nonacademic.
(a) Definitions – (1) Academic, in INA 101(a)(15)(F), refers to an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution, or a language training program.
(2) Nonacademic, in INA 101(a)(15)(M), refers to an established vocational or other recognized nonacademic institution (other than a language training program).
(b) Classification. (1) An alien is classifiable under INA 101(a)(15)(F) (i) or (iii) or INA 101(a)(15)(M) (i) or (iii) if the consular officer is satisfied that the alien qualifies under one of those sections, and:
(i) The alien has been accepted for attendance for the purpose of pursuing a full course of study, or, for students classified under INA 101(a)(15) (F)(iii) and (M)(iii) Border Commuter Students, full or part-time course of study, in an academic institution approved by the Secretary of Homeland Security for foreign students under INA 101(a)(15)(F)(i) or a nonacademic institution approved under 101(a)(15)(M)(i). The alien has presented a SEVIS Form I-20, Form I-20A-B/I-20ID. Certificate of Eligibility For Nonimmigrant Student Status – For Academic and Language Students, or Form I-20M-N/I-20ID, Certificate of Eligibility for Nonimmigrant Student Status – For Vocational Students, properly completed and signed by the alien and a designated official as prescribed in regulations found at 8 CFR 214.2(F) and 214.2(M);
(ii) The alien possesses sufficient funds to cover expenses while in the United States or can satisfy the consular officer that other arrangements have been made to meet those expenses;
(iii) The alien, unless coming to participate exclusively in an English language training program, has sufficient knowledge of the English language to undertake the chosen course of study or training. If the alien’s knowledge of English is inadequate, the consular officer may nevertheless find the alien so classifiable if the accepting institution offers English language training, and has accepted the alien expressly for a full course of study (or part-time course of study for Border Commuter Students) in a language with which the alien is familiar, or will enroll the alien in a combination of courses and English instruction which will constitute a full course of study if required; and
(iv) The alien intends, and will be able, to depart upon termination of student status.
(2) An alien otherwise qualified for classification as a student, who intends to study the English language exclusively, may be classified as a student under INA 101(a) (15) (F) (i) even though no credits are given by the accepting institution for such study. The accepting institution, however, must offer a full course of study in the English language and must accept the alien expressly for such study.
(3) The alien spouse and minor children of an alien who has been or will be issued a visa under INA 101(a) (15) (F) (i) or 101(a) (15) (M) (i) may receive nonimmigrant visas under INA 101(a) (15) (F) (ii) or 101(a) (15) (M) (ii) if the consular officer is satisfied that they will be accompanying or following to join the principal alien; that sufficient funds are available to cover their expenses in the United States; and, that they intend to leave the United States upon the termination of the status of the principal alien.
(c) Posting of bond. In borderline cases involving an alien otherwise qualified for classification under INA 101(a) (15) (F), the consular officer is authorized to require the posting of a bond with the Secretary of Homeland Security in a sum sufficient to ensure that the alien will depart upon the conclusion of studies or in the event of failure to maintain student status.
(d) Electronic verification and notification. A student’s acceptance documentation must be verified by a consular official’s review of the SEVIS data in the Consolidated Consular Database or via direct access to SEVIS or ISEAS prior to the issuance of an F-1, F-2, M-1 or M-3 visa. Evidence of the payment of any applicable fees, if not presented with other documentation, may also be verified through the Consolidated Consular Database or direct access to SEVIS. Upon issuance of an F or M visa, notification of such issuance must be entered into the SEVIS database.
§ 41.62 Exchange visitors.
(a) J-1 classification. An alien is classifiable as an exchange visitor if qualified under the provisions of INA 101(a) (15) (J) and the consular officer is satisfied that the alien:
(1) Has been accepted to participate, and intends to participate, in an exchange visitor program designated by the Bureau of Education and Cultural Affairs, Department of State, as evidenced by the presentation of a properly executed Form DS-2019, Certificate of Eligibility for Exchange Visitor (J-1) Status;
(2) Has sufficient funds to cover expenses or has made other arrangements to provide for expenses;
(3) Has sufficient knowledge of the English language to undertake the program for which selected, or, except for an alien coming to participate in a graduate medical education or training program, the sponsoring organization is aware of the language deficiency and has nevertheless indicated willingness to accept the alien; and
(4) Meets the requirements of INA 212(j) if coming to participate in a graduate medical education or training program.
(5) Electronic verification and notification. An exchange visitor’s acceptance documentation and payment of any applicable fees must be verified by a consular official’s review of the SEVIS database or via direct access to SEVIS or ISEAS prior to the issuance of a J-1 or J-2 visa. Evidence of the payment of any applicable fees, if not presented with other documentation, may also be verified through the Consolidated Consular Database or direct access to SEVIS. Upon issuance of a J-1 or J-2 visa, notification of such issuance must be entered into the SEVIS database.
(b) J-2 Classification. The spouse or minor child of an alien classified J-1 is classifiable J-2.
(c) Applicability of INA 212(e). (1) An alien is subject to the 2-year foreign residence requirement of INA 212(e) if:
(i) The alien’s participation in one or more exchange programs was wholly or partially financed, directly or indirectly, by the U.S. Government or by the government of the alien’s last legal permanent residence; or
(ii) At the time of the issuance of an exchange visitor visa and admission to the United States, or, if not required to obtain a nonimmigrant visa, at the time of admission as an exchange visitor, or at the time of acquisition of such status after admission, the alien is a national and resident or, if not a national, a legal permanent resident (or has status equivalent thereto) of a country which the Secretary of State has designated, through publication by public notice in the
(iii) The alien acquires exchange visitor status in order to receive graduate medical education or training in the United States.
(2) For the purposes of this paragraph the terms financed directly and financed indirectly are defined as set forth in section § 514.1 of chapter V.
(3) The country in which 2 years’ residence and physical presence will satisfy the requirements of INA 212(e) in the case of an alien determined to be subject to such requirements is the country of which the alien is a national and resident, or, if not a national, a legal permanent resident (or has status equivalent thereto).
(4) If an alien is subject to the 2-year foreign residence requirement of INA 212(e), the spouse or child of that alien, accompanying or following to join the alien, is also subject to that requirement if admitted to the United States pursuant to INA 101(a) (15) (J) or if status is acquired pursuant to that section after admission.
(d) Notification to alien concerning 2-year foreign residence requirement. Before the consular officer issues an exchange visitor visa, the consular officer must inform the alien whether the alien will be subject to the 2-year residence and physical presence requirement of INA 212(e) if admitted to the United States under INA 101(a) (15) (J) and, if so, the country in which 2 years’ residence and physical presence will satisfy the requirement.
§ 41.63 Two-year home-country physical presence requirement.
(a) Statutory basis for rule. Section 212(e) of the Immigration and Nationality Act, as amended, provides in substance as follows:
(1) No person admitted under Section 101(a) (15)(J) or acquiring such status after admission:
(i) Whose participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the United States Government or by the government of the country of his nationality or of his last legal permanent residence;
(ii) Who at the time of admission or acquisition of status under 101(a)(15)(J) was a national or legal permanent resident of a country which the Secretary of State, pursuant to regulations prescribed by him, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged [See the most recent “Revised Exchange Visitor Skills List”, at http://exchanges.state.gov/education/jexchanges/participation/skills_list.pdf; or
(iii) Who came to the United States or acquired such status in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)(L) until is established that such person has resided and been physically present in the country of his nationality or his last legal permanent residence for an aggregate of at least two years following departure from the United States.
(2) Upon the favorable recommendation of the Secretary of State, pursuant to the request of an interested United States Government agency (or in the case of an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training, pursuant to the request of a State Department of Public Health, or its equivalent), or of the Secretary of Homeland Security after the latter has determined that departure from the United States would impose exceptional hardship upon the alien’s spouse or child (if such spouse or child is a citizen of the United States or a legal permanent resident alien), or that the alien cannot return to the country of his nationality or last legal permanent residence because he would be subject to persecution on account of race, religion, or political opinion, the Secretary of Homeland Security may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Secretary of Homeland Security to be in the public interest except that in the case of a waiver requested by a State Department of Public Health, or its equivalent, the waiver shall be subject to the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1184).
(3) Except in the case of an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training, the Secretary of Homeland Security, upon the favorable recommendation of the Secretary of State, may also waive such two-year foreign residence requirement in any case in which the foreign country of the alien’s nationality or last legal permanent residence has furnished the Secretary of State a statement in writing that it has no objection to such waiver in the case of such alien. Notwithstanding the foregoing, an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training may obtain a waiver of such two-year foreign residence requirements if said alien meets the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1184) and paragraphs (a) (2) and (e) of this section.
(b) Request for waiver on the basis of exceptional hardship or probable persecution on account of race, religion, or political opinion. (1) An exchange visitor who seeks a waiver of the two-year home-country residence and physical presence requirement on the grounds that such requirement would impose exceptional hardship upon the exchange visitor’s spouse or child (if such spouse or child is a citizen of the United States or a legal permanent resident alien), or on the grounds that such requirement would subject the exchange visitor to persecution on account of race, religion, or political opinion, shall submit the application for waiver (DHS Form I-612) to the jurisdictional office of the Department of Homeland Security.
(2)(i) If the Secretary of Homeland Security (Secretary of DHS) determines that compliance with the two-year home-country residence and physical presence requirement would impose exceptional hardship upon the spouse or child of the exchange visitor, or would subject the exchange visitor to persecution on account of race, religion, or political opinion, the Secretary of DHS shall transmit a copy of his determination together with a summary of the details of the expected hardship or persecution, to the Waiver Review Division, in the Department of State’s Bureau of Consular Affairs.
(ii) With respect to those cases in which the Secretary of DHS has determined that compliance with the two-year home-country residence and physical presence requirement would impose exceptional hardship upon the spouse or child of the exchange visitor, the Waiver Review Division shall review the program, policy, and foreign relations aspects of the case, make a recommendation, and forward it to the appropriate office at DHS. If it deems it appropriate, the Waiver Review Division may request the views of each of the exchange visitors’ sponsors concerning the waiver application. Except as set forth in paragraph (g)(4) of this section, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State.
(iii) With respect to those cases in which the Secretary of DHS has determined that compliance with the two-year home-country residence and physical presence requirement would subject the exchange visitor to persecution on account of race, religion, or political opinion, the Waiver Review Division shall review the program, policy, and foreign relations aspects of the case, including consultation if deemed appropriate with the Bureau of Human Rights and Humanitarian Affairs of the United States Department of State, make a recommendation, and forward such recommendation to the Secretary of DHS. Except as set forth in paragraph (g)(4) of this section, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State and such recommendation shall be forwarded to DHS.
(c) Requests for waiver made by an interested United States Government Department of State. (1) A United States Government agency may request a waiver of the two-year home-country residence and physical presence requirement on behalf of an exchange visitor if such exchange visitor is actively and substantially involved in a program or activity sponsored by or of interest to such agency.
(2) A United States Government agency requesting a waiver shall submit its request in writing and fully explain why the grant of such waiver request would be in the public interest and the detrimental effect that would result to the program or activity of interest to the requesting agency if the exchange visitor is unable to continue his or her involvement with the program or activity.
(3) A request by a United States Government agency shall be signed by the head of the agency, or his or her designee, and shall include copies of all IAP 66 or DS-2019 forms issued to the exchange visitor, his or her current address, and his or her country of nationality or last legal permanent residence.
(4) A request by a United States Government agency, excepting the Department of Veterans Affairs, on behalf of an exchange visitor who is a foreign medical graduate who entered the United States to pursue graduate medical education or training, and who is willing to provide primary care or specialty medicine in a designated primary care Health Professional shortage Area, or a Medically Underserved Area, or psychiatric care in a Mental Health Professional Shortage Area, shall, in additional to the requirement set forth in paragraphs (c)(2) and (3) of this section, include:
(i) A copy of the employment contract between the foreign medical graduate and the health care facility at which he or she will be employed. Such contract shall specify a term of employment of not less than three years and that the foreign medical graduate is to be employed by the facility for the purpose of providing not less than 40 hours per week of primary medical care, i.e., general or family practice, general internal medicine, pediatrics, or obstetrics and gynecology, in a designated primary care Health Professional Shortage Area or designated Medically Underserved Area (“MUA”) or psychiatric care in a designated Mental Health Professional Shortage Area. Further, such employment contract shall not include a non-compete clause enforceable against the foreign medical graduate.
(ii) A statement, signed and dated by the head of the health care facility at which the foreign medical graduate will be employed, that the facility is located in an area designated by the Secretary of Health and Human Services as a Medically Underserved Area or Primary Medical Care Health Professional Shortage Area or Mental Health Professional Shortage Area and provides medical care to both Medicaid or Medicare eligible patients and indigent uninsured patients. The statement shall also list the primary care Health Professional Shortage Area, Mental Health Professional Shortage Area, or Medically Underserved Area/Population identifier number of the designation (assigned by the Secretary of Health and Human Services), and shall include the FIPS county code and census tract or block numbering area number (assigned by the Bureau of the Census) or the 9-digit zipcode of the area where the facility is located.
(iii) A statement, signed and dated by the foreign medical graduate exchange visitor that shall read as follows:
I, ____________________ (name of exchange visitor) hereby declare and certify, under penalty of the provisions of 18 U.S.C. 1001, that I do not now have pending nor am I submitting during the pendency of this request, another request to any United States Government department or agency or any State Department of Public Health, or equivalent, other than ____________________ (insert name of United States Government Agency requesting waiver) to act on my behalf in any matter relating to a waiver of my two-year home-country physical presence requirement.
(iv) Evidence that unsuccessful efforts have been made to recruit an American physician for the position to be filled.
(5) Except as set forth in paragraph (g)(4) of this section, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State and such recommendation shall be forwarded to the Secretary of DHS.
(d) Requests for waiver made on the basis of a statement from the exchange visitor’s home-country that it has no objection to the waiver. (1) Applications for waiver of the two-year home-country residence and physical presence requirement may be supported by a statement of no objection by the exchange visitor’s country of nationality or last legal permanent residence. The statement of no objection shall be directed to the Secretary of State through diplomatic channels; i.e., from the country’s Foreign Office to the Department of State through the U.S. Mission in the foreign country concerned, or through the foreign country’s head of mission or duly appointed designee in the United States to the Secretary of State in the form of a diplomatic note. This note shall include applicant’s full name, date and place of birth, and present address. If deemed appropriate, the Department of State may request the views of each of the exchange visitor’s sponsors concerning the waiver application.
(2) The Waiver Review Division shall review the program, policy, and foreign relations aspects of the case and forward its recommendation to the Secretary of DHS. Except as set forth in § 41.63(g)(4), infra, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State.
(3) An exchange visitor who is a graduate of a foreign medical school and who is pursuing a program in graduate medical education or training in the United States is prohibited under section 212(e) of the Immigration and Nationality Act from applying for a waiver solely on the basis of no objection from his or her country of nationality or last legal permanent residence. However, an alien who is a graduate of a foreign medical school pursuing a program in graduate medical education or training may obtain a waiver of such two-year foreign residence requirements if said alien meets the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1184) and paragraphs (a)(2) and (e) of this section.
(e) Requests for waiver from a State Department of Public Health, or its equivalent, on the basis of Public Law 103-416. (1) Pursuant to Public Law 103-416, in the case of an alien who is a graduate of a medical school pursuing a program in graduate medical education or training, a request for a waiver of the two-year home-country residence and physical presence requirement may be made by a State department of Public Health, or its equivalent. Such waiver shall be subject to the requirements of section 214(l) of the Immigration and Nationality Act (8 U.S.C. 1194(l)) and this § 41.63.
(2) With respect to such waiver under Public Law 104-416, if such alien is contractually obligated to return to his or her home country upon completion of the graduate medical education or training, the Secretary of State is to be furnished with a statement in writing that the country to which such alien is required to return has no objection to such waiver. The no objection statement shall be furnished to the Secretary of State in the manner and form set forth in paragraph (d) of this section and, additionally, shall bear a notation that it is being furnished pursuant to Public Law 103-416.
(3) The State Department of Public Health, or equivalent agency, shall include in the waiver application the following:
(i) A completed DS-3035. Copies of these forms may be obtained from the Visa Office or online at http://www.travel.state.gov.
(ii) A letter from the Director of the designated State Department of Public Health, or its equivalent, which identifies the foreign medical graduate by name, country of nationality or country of last legal permanent residence, and date of birth, and states that it is in the public interest that a waiver of the two-year home residence requirement be granted;
(iii) An employment contract between the foreign medical graduate and the health care facility named in the waiver application, to include the name and address of the health care facility, and the specific geographical area or areas in which the foreign medical graduate will practice medicine. The employment contract shall include a statement by the foreign medical graduate that he or she agrees to meet the requirements set forth in section 214(l) of the Immigration and Nationality Act. The term of the employment contract shall be at least three years and the geographical areas of employment shall only be in areas, within the respective state, designated by the Secretary of Health and Human Services as having a shortage of health care professionals, unless the waiver request is for an alien who will practice medicine in a facility that serves patients who reside in one or more geographic areas so designated by the Secretary of Health and Human Services without regard to whether such facility is located within such a designated geographic area. For the latter situation, which will be referred to as “non-designated requests”, the contract should also state that the term of the employment contract shall be at least three years and employment shall only be in a facility that serves patients who reside in one or more geographic areas so designed by the Secretary of Health and Human Services as having a shortage of health care professionals.
(iv) Evidence establishing that the geographic area or areas in the state in which the foreign medical graduate will practice medicine or where patients who will be served by the foreign medical graduates reside, are areas which have been designated by the Secretary of Health and Human Services as having a shortage of health care professionals. For purposes of this paragraph, the geographic area or areas must be designated by the Department of Health and Human Services as a Health Professional Shortage Area (“HPSA”) or as a Medically Underserved Area/Medically Underserved Population (“MUA/MUP”).
(v) Copies of all forms IAP 66 or DS-2019 issued to the foreign medical graduate seeking the waiver;
(vi) A copy of the foreign medical graduate’s curriculum vitae;
(vii) If the foreign medical graduate is otherwise contractually required to return to his or her home country at the conclusion of the graduate medical education or training, a copy of the statement of no objection from the foreign medical graduate’s country of nationality or last residence; and,
(viii) Because of the numerical limitations on the approval of waivers under Public Law 103-416, i.e., no more than the maximum number of waivers for each State each fiscal year as mandated by law, each application from a State Department of Public Health, or its equivalent, shall be numbered sequentially, beginning on October 1 of each year. The “non-designated” requests will also be numbered sequentially with appropriate identifier.
(4) The Waiver Review Division shall review the program, policy, and foreign relations aspects of the case and forward its recommendation to the Secretary of DHS. Except as set forth in paragraph (g)(4) of this section, the recommendation of the Waiver Review Division shall constitute the recommendation of the Department of State.
(f) Changed circumstances. An applicant for a waiver on the grounds of exceptional hardship or probable persecution on account of race, religion, or political opinion, has a continuing obligation to inform the Department of Homeland Security of changed circumstances material to his or her pending application.
(g) The Waiver Review Board. (1) The Waiver Review Board (“Board”) shall consist of the following persons or their designees:
(i) The Principal Deputy Assistant Secretary of the Bureau of Consular Affairs;
(ii) The Director of Office of Public Affairs for the Bureau of Consular Affairs;
(iii) The Legislative Management Officer for Consular Affairs, Bureau of Legislative Affairs;
(iv) The Director of the Office of Exchange Coordination and Designation in the Bureau of Educational and Cultural Affairs; and
(v) The Director of the Office of Policy and Evaluation in the Bureau of Educational and Cultural Affairs.
(2) A person who has had substantial prior involvement in a particular case referred to the Board may not be appointed to, or serve on, the Board for that particular case unless the Bureau of Consular Affairs determines that the individual’s inclusion on the Board is otherwise necessary or practicably unavoidable.
(3) The Principal Deputy Assistant Secretary of Consular Affairs, or his or her designee, shall serve as Board Chairman. No designee under this paragraph (g)(3) shall serve for more than 2 years.
(4) Cases will be referred to the Board at the discretion of the Chief, Waiver Review Division, of the Visa Office. The Chief, Waiver Review Division, or his or her designee may, at the Chairman’s discretion, appear and present facts related to the case but shall not participate in Board deliberations.
(5) The Chairman of the Board shall be responsible for convening the Board and distributing all necessary information to its members. Upon being convened, the Board shall review the case file and weigh the request against the program, policy, and foreign relations aspects of the case.
(6) The Bureau of Consular Affairs shall appoint, on a case-by-case basis, from among the attorneys in the State Department’s Office of Legal Advisor one attorney to serve as legal advisor to the Board.
(7) At the conclusion of its review of the case, the Board shall make a written recommendation either to grant or to deny the waiver application. The written recommendation of a majority of the Board shall constitute the recommendation of the Board. Such recommendation shall be promptly transmitted by the Chairman to the Chief, Waiver Review Division.
(8) At the conclusion of its review of the case, the Board shall make a written recommendation either to grant or to deny the waiver application. The written recommendation of a majority of the Board shall constitute the recommendation of the Board. Such recommendation shall be promptly transmitted by the Chairman to the Chief, Waiver Review Division.
Subpart H – Transit Aliens
§ 41.71 Transit aliens.
(a) Transit aliens – general. An alien is classifiable as a nonimmigrant transit alien under INA 101(a) (15) (C) if the consular officer is satisfied that the alien:
(1) Intends to pass in immediate and continuous transit through the United States;
(2) Is in possession of a common carrier ticket or other evidence of transportation arrangements to the alien’s destination;
(3) Is in possession of sufficient funds to carry out the purpose of the transit journey, or has sufficient funds otherwise available for that purpose; and
(4) Has permission to enter some country other than the United States following the transit through the United States, unless the alien submits satisfactory evidence that such advance permission is not required.
(b) Certain aliens in transit to United Nations. An alien within the provisions of paragraph (3), (4), or (5) of section 11 of the Headquarters Agreement with the United Nations, to whom a visa is to be issued for the purpose of applying for admission solely in transit to the United Nations Headquarters District, may upon request or at the direction of the Secretary of State be issued a nonimmigrant visa bearing the symbol C-2. If such a visa is issued, the recipient shall be subject to such restrictions on travel within the United States as may be provided in regulations prescribed by the Secretary of Homeland Security.
Subpart I – Fiance(e)s and Other Nonimmigrants
§ 41.81 Fiancé(e) or spouse of a U.S. citizen and derivative children.
(a) Fiancé(e). An alien is classifiable as a nonimmigrant fiancé(e) under INA 101(a)(15)(K)(i) if:
(1) The consular officer is satisfied that the alien is qualified under that provision and the consular officer has received a petition filed by a U.S. citizen to confer nonimmigrant status as a fiancé(e) on the alien, which has been approved by the DHS under INA 214(d), or a notification of such approval from that Service;
(2) The consular officer has received from the alien the alien’s sworn statement of ability and intent to conclude a valid marriage with the petitioner within 90 days of arrival in the United States; and
(3) The alien has met all other qualifications in order to receive a nonimmigrant visa, including the requirements of paragraph (d) of this section.
(b) Spouse. An alien is classifiable as a nonimmigrant spouse under INA 101(a)(15)(K)(ii) when all of the following requirements are met:
(1) The consular officer is satisfied that the alien is qualified under that provision and the consular officer has received a petition approved by the DHS pursuant to INA 214(p)(1), that was filed by the U.S. citizen spouse of the alien in the United States.
(2) If the alien’s marriage to the U.S. citizen was contracted outside of the United States, the alien is applying in the country in which the marriage took place, or if there is no consular post in that country, then at a consular post designated by the Deputy Assistant Secretary of State for Visa Services to accept immigrant visa applications for nationals of that country.
(3) If the marriage was contracted in the United States, the alien is applying in a country as provided in part 42, § 42.61 of this chapter.
(4) The alien otherwise has met all applicable requirements in order to receive a nonimmigrant visa, including the requirements of paragraph (d) of this section.
(c) Child. An alien is classifiable under INA 101(a)(15)(K)(iii) if:
(1) The consular officer is satisfied that the alien is the child of an alien classified under INA 101(a)(15)(K)(i) or (ii) and is accompanying or following to join the principal alien; and
(2) The alien otherwise has met all other applicable requirements in order to receive a nonimmigrant visa, including the requirements of paragraph (d) of this section.
(d) Eligibility as an immigrant required. The consular officer, insofar as is practicable, must determine the eligibility of an alien to receive a nonimmigrant visa under paragraphs (a), (b) or (c) of this section as if the alien were an applicant for an immigrant visa, except that the alien must be exempt from the vaccination requirement of INA 212(a)(1) and the labor certification requirement of INA 212(a)(5).
§ 41.82 Certain parents and children of section 101(a)(27)(I) special immigrants. [Reserved]
§ 41.83 Certain witnesses and informants.
(a) General. An alien shall be classifiable under the provisions of INA 101(a)(15)(S) if:
(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and
(2)(i) The consular officer has received verification from the Department of State, Visa Office, that:
(A) in the case of INA 101(a)(15)(S)(i) the DHS has certified that the alien is accorded such classification, or
(B) in the case of INA 101(a)(15)(S)(ii) the Assistant Secretary of State for Consular Affairs on behalf of the Secretary of State and the DHS have certified that the alien is accorded such classification;
(ii) and the alien is granted an INA 212(d)(1) waiver of any INA 212(a) ground of ineligibility known at the time of verification.
(b) Certification of S visa status. The certification of status under INA 101(a)(15)(S)(i) by the Secretary of Homeland Security or of status under INA 101(a)(15)(S)(ii) by the Secretary of State and the Secretary of Homeland Security acting jointly does not establish that the alien is eligible to receive a nonimmigrant visa.
(c) Validity of visa. The period of validity of a visa authorized on the basis of paragraph (a) of this section shall not exceed the period indicated in the certification required in paragraph (b) and shall not in any case exceed the period of three years.
§ 41.84 Victims of trafficking in persons.
(a) Eligibility. An alien may be classifiable as a parent, spouse or child under INA 101(a)(15)(T)(ii) if:
(1) The consular officer is satisfied that the alien has the required relationship to an alien who has been granted status by the Secretary for Homeland Security under INA 101(a)(15)(T)(i);
(2) The consular officer is satisfied that the alien is otherwise admissible under the immigration laws of the United States; and
(3) The consular officer has received an DHS-approved I-914, Supplement A, evidencing that the alien is the spouse, child, or parent of an alien who has been granted status under INA 101(a)(15)(T)(i).
(b) Visa validity. A qualifying family member may apply for a nonimmigrant visa under INA(a)(15)(T)(ii) only during the period in which the principal applicant is in status under INA 101(a)(15)(T)(i). Any visa issued pursuant to such application shall be valid only for a period of three years or until the expiration of the principal alien’s status as an alien classified under INA 101(a)(15)(T)(i), whichever is shorter.
§ 41.86 Certain spouses and children of lawful permanent resident aliens.
(a) Definition of “remains pending”. For the purposes of this section, a visa application “remains pending” if the applicant has applied for an immigrant visa in accordance with the definition in part 40, § 40.1(l)(2) and the visa has neither been issued, nor refused for any reason under applicable law and regulation.
(b) Entitlement to classification. A consular officer may classify an alien as a nonimmigrant under INA 101(a)(15)(V) if:
(1) The consular officer has received notification from the Department of State or the Department of Justice that a petition to accord status to the alien as a spouse or child pursuant to INA 203(a)(2)(A) was filed on or before December 21, 2000; or
(2) The alien is eligible to derive benefits pursuant to INA 203(d) as a child of an alien described in paragraph (b)(1) of this section and such alien has qualified for V classification; and
(3) It has been three years or more since the filing date of the petition described in paragraph (b)(1) of this section and applicable to paragraph (b)(2) of this section and either:
(i) The petition has not been approved; or
(ii) If it has been approved, either no immigrant visa number is immediately available or the alien’s application for adjustment of status or the alien’s application for a visa remains pending.
(c) Eligibility as an immigrant required. The consular officer, insofar as practicable, must determine the eligibility of an alien described in paragraph (b) of this section to receive a nonimmigrant visa under INA 101(a)(15)(V), other than an alien who previously has been granted V status in the United States by DHS, as if the alien were an applicant for an immigrant visa, except that the alien is exempt from the vaccination requirement of INA 212(a)(1), the labor certification requirement of INA 212(a)(5) and the unlawful presence ineligibility of INA 212(a)(9)(B).
(d) Place of application. Notwithstanding the requirements of § 41.101, in determining the place of application for an alien seeking a visa pursuant to INA 101(a)(15)(V) the requirements of part 42, §§ 42.61(a) and (b)(1) of this chapter will apply.
Subpart J – Application for Nonimmigrant Visa
§ 41.101 Place of application.
(a) Application for regular visa made at jurisdictional consular office of alien’s residence or physical presence. (1) An alien applying for a nonimmigrant visa shall make application at a consular office having jurisdiction over the alien’s place of residence, or if the alien is a resident of Taiwan, at the American Institute in Taiwan, unless –
(i) The alien is physically present in the United States and is entitled to apply for issuance or reissuance of a visa under the provisions of § 41.111(b); or
(ii) A consular office having jurisdiction over the area in which the alien is physically present but not resident has agreed, as a matter of discretion or at the direction of the Department, to accept the alien’s application; or
(iii) The alien is subject to INA 222(g) and must apply as set forth in paragraph (b) or (c) of this section.
(2) The Deputy Assistant Secretary of State for Visa Services is authorized to designate the geographical area for which each consular office possesses jurisdiction to process nonimmigrant visa applications.
(b) Place of application for persons subject to INA 222(g). Notwithstanding the requirements of paragraph (a) of this section, an alien whose prior nonimmigrant visa has been voided pursuant to INA 222(g), who is applying for a new nonimmigrant visa, shall make application at a consular office which has jurisdiction in or for the country of the alien’s nationality unless extraordinary circumstances have been determined to exist with respect to that alien as set forth in paragraph (c) of this section.
(c) Exceptions based on extraordinary circumstances. (1) An alien physician serving in underserved areas of the United States under the provisions of INA 214(l) for whom an application for a waiver of the 2-year foreign residence requirement and/or a petition to accord H-1B status was filed prior to the end of the alien’s authorized period of stay and was subsequently approved, but whose authorized stay expired during the adjudication of such application(s), shall make application in accordance with paragraph (a) of this section.
(2) Any other individual or group whose circumstances are determined to be extraordinary, in accordance with paragraph (d)(1) of this section, by the Deputy Assistant Secretary for Visa Services upon the favorable recommendation of an immigration or consular officer, shall make application in accordance with paragraph (a) of this section.
(3) An alien who has, or immediately prior to the alien’s last entry into the United States had, a residence in a country other than the country of the alien’s nationality shall apply at a consular office with jurisdiction in or for the country of residence.
(4) An alien who is a national and resident of a country in which there is no United States consular office shall apply at a consular office designated by the Deputy Assistant Secretary for Visa Services to accept immigrant visa applications from persons of that nationality.
(5) An alien who possesses more than one nationality and who has, or immediately prior to the alien’s last entry into the United States had, a residence in one of the countries of the alien’s nationality shall apply at a consular office in the country of such residence.
(d) Definitions relevant to INA 222(g). (1) Extraordinary circumstances – Extraordinary circumstances may be found where compelling humanitarian or national interests exist or where necessary for the effective administration of the immigration laws. Extraordinary circumstances shall not be found upon the basis of convenience or financial burden to the alien, the alien’s relative, or the alien’s employer.
(2) Nationality – For purposes of paragraph (b) of this section, a stateless person shall be considered to be a national of the country which issued the alien’s travel document.
(e) Regular visa defined. “Regular visa” means a nonimmigrant visa of any classification which does not bear the title “Diplomatic” or “Official.” A nonimmigrant visa is issued as a regular visa unless the alien falls within one of the classes entitled to a diplomatic or an official visa as described in § 41.26(c) or § 41.27(c).
(f) [Reserved]
§ 41.102 Personal appearance of applicant.
(a) Except when the requirement of personal appearance has been waived pursuant to paragraph (b), (c), or (d) of this section, each applicant for a nonimmigrant visa who is at least 14 years of age and not more than 79 years of age must personally appear before and be interviewed by a consular officer, who shall determine on the basis of the applicant’s representations, the visa application and other relevant documentation:
(1) The proper nonimmigrant classification, if any, of the alien; and
(2) The alien’s eligibility to receive a visa.
(b) Waivers of personal appearance by consular officers. Except as provided in paragraph (e) of this section or as otherwise instructed by the Deputy Assistant Secretary of State for Visa Services, a consular officer may waive the requirement of personal appearance if the consular officer concludes the alien presents no national security concerns requiring an interview and:
(1) Is within a class of nonimmigrants classifiable under the visa symbols A-1, A-2, C-2, C-3 (except attendants, servants, or personal employees of accredited officials), G-1, G-2, G-3, G-4, NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, NATO-6, or is a Taipei Economic and Cultural Representative Office (TECRO) nonimmigrant classifiable under visa symbol E-1, and is seeking a visa in such classification; or
(2) Is an applicant for a diplomatic or official visa as described in § 41.26 or § 41.27 of this chapter; or
(3) Is an applicant who is within 12 months of the expiration of the applicant’s previously issued visa and:
(i) Is seeking re-issuance of a nonimmigrant visa in the same classification;
(ii) Is applying at the consular post of the applicant’s usual residence; and
(iii) Is an applicant for whom the consular officer has no indication of visa ineligibility or of noncompliance with U.S. immigration laws and regulations.
(c) Waivers of personal appearance in the national interest. Except as provided in paragraph (e) of this section, the Secretary may waive the requirement of personal appearance of an individual applicant or a class of applicants if the Secretary determines that such waiver is in the national interest of the United States.
(d) Waivers of personal appearance in unusual or emergent circumstances. Except as provided in paragraph (e) of this section, the Deputy Assistant Secretary for Visa Services may waive the requirement of personal appearance of an individual applicant or a class of applicants if the Deputy Assistant Secretary determines that such waiver is necessary as a result of unusual or emergent circumstances.
(e) Cases in which personal appearance may not be waived. Except for a nonimmigrant applicant whose personal appearance is waived under paragraphs (b)(1), (b)(2), or (c) of this section, the personal appearance requirement may not be waived for:
(1) Any nonimmigrant applicant who is not a national or resident of the country in which he or she is applying.
(2) Any nonimmigrant applicant who was previously refused a visa, is listed in CLASS, or otherwise requires a Security Advisory Opinion, unless:
(i) The visa was refused and the refusal was subsequently overcome; or
(ii) The alien was found inadmissible, but the inadmissibility was waived.
(3) Any nonimmigrant applicant who is from a country designated by the Secretary of State as a state sponsor of terrorism, regardless of age, or who is a member of a group or sector designated by the Secretary of State under section 222(h)(2)(F) of the Immigration and Nationality Act.
§ 41.103 Filing an application.
(a) Filing an application – (1) Filing of application required. Every alien seeking a nonimmigrant visa must make an electronic application on Form DS-160 or, as directed by a consular officer, an application on Form DS-156. The Form DS-160 must be signed electronically by clicking the box designated “Sign Application” in the certification section of the application.
(2) Filing of an electronic application (Form DS-160) or Form DS-156 by alien under 16 or physically incapable. The application for an alien under 16 years of age or one physically incapable of completing an application may be completed and executed by the alien’s parent or guardian, or if the alien has no parent or guardian, by any person having legal custody of, or a legitimate interest in, the alien.
(3) Waiver of filing of application when personal appearance is waived. Even if personal appearance of a visa applicant is waived pursuant to 22 CFR 41.102, the requirement for filing an application is not waived.
(b) Application – (1) Preparation of Electronic Nonimmigrant Visa Application (Form DS-160) or, alternatively, Form DS-156. The consular officer shall ensure that the application is fully and properly completed in accordance with the applicable regulations and instructions.
(2) Additional requirements and information as part of application. Applicants who are required to appear for a personal interview must provide a biometric, which will serve to authenticate identity and additionally verify the accuracy and truthfulness of the statements in the application at the time of interview. The consular officer may require the submission of additional necessary information or question an alien on any relevant matter whenever the consular officer believes that the information provided in the application is inadequate to permit a determination of the alien’s eligibility to receive a nonimmigrant visa. Additional statements made by the alien become a part of the visa application. All documents required by the consular officer under the authority of § 41.105(a) are considered papers submitted with the alien’s application within the meaning of INA 221(g)(1).
(3) Signature. The Form DS-160 shall be signed electronically by clicking the box designated “Sign Application” in the certification section of the application. This electronic signature attests to the applicant’s familiarity with and intent to be bound by all statements in the NIV application under penalty of perjury. Alternatively, except as provided in paragraph (a)(2) of this section, the Form DS-156 shall be signed by the applicant, with intent to be bound by all statement in the NIV application under penalty of perjury.
(4) Registration. The Form DS-160 or the Form DS-156, when duly executed, constitutes the alien’s registration for the purposes of INA 221(b).
§ 41.104 Passport requirements.
(a) Passports defined. “Passport” as defined in INA 101(a)(30) is not limited to a national passport or to a single document. A passport may consist of two or more documents which, when considered together, fulfill the requirements of a passport, provided that the documentary evidence of permission to enter a foreign country has been issued by a competent authority and clearly meets the requirements of INA 101(a)(30).
(b) Passport requirement. Except for certain persons in the A, C-3, G, and NATO classifications and persons for whom the passport requirement has been waived pursuant to the provisions of INA 212(d)(4), every applicant for a nonimmigrant visa is required to present a passport, as defined above and in INA 101(a)(30), which is valid for the period required by INA 212(a)(7)(B)(i)(I).
(c) A single passport including more than one person. The passport requirement for a nonimmigrant visa may be met by the presentation of a passport including more than one person, if such inclusion is authorized under the laws or regulations of the issuing authority and if a photograph of each visa applicant 16 years of age or over has been attached to the passport by the issuing authority.
(d) Applicants for diplomatic visas. Every applicant for a diplomatic visa must present a diplomatic passport, or the equivalent thereof, having the period of validity required by INA 212(a)(7)(B)(i)(I), unless such requirement has been waived pursuant to the authority contained in INA 212(d)(4) or unless the case falls within the provisions of § 41.21(b).
§ 41.105 Supporting documents and fingerprinting.
(a) Supporting documents – (1) Authority to require documents. The consular officer is authorized to require documents considered necessary to establish the alien’s eligibility to receive a nonimmigrant visa. All documents and other evidence presented by the alien, including briefs submitted by attorneys or other representatives, shall be considered by the consular officer.
(2) Unobtainable documents. If the consular officer is satisfied that a document or record required under the authority of this section is unobtainable, the consular officer may accept satisfactory alternative pertinent evidence. A document or other record shall be considered unobtainable if it cannot be procured without causing the applicant or a member of the applicant’s family actual hardship as distinct from normal delay and inconvenience.
(3) Photographs required. Every applicant for a nonimmigrant visa must furnish a photograph in such numbers as the consular officer may require. Photographs must be a reasonable likeness, 1
(4) Police certificates. A police certificate is a certification by the police or other appropriate authorities stating what, if anything, their records show concerning the alien. An applicant for a nonimmigrant visa is required to present a police certificate if the consular officer has reason to believe that a police or criminal record exists, except that no police certificate is required in the case of an alien who is within a class of nonimmigrants classifiable under visa symbols A-1, A-2, C-3, G-1 through G-4, NATO-1 through NATO-4 or NATO-6.
(b) Fingerprinting. Every applicant for a nonimmigrant visa must furnish fingerprints, as required by the consular officer.
§ 41.106 Processing.
Consular officers must ensure that the Form DS-160 or, alternatively, Form DS-156 is properly and promptly processed in accordance with the applicable regulations and instructions.
§ 41.107 Visa fees.
(a) Fees based on reciprocity. The fees for the issuance of visas, including official visas, to nonimmigrant nationals or stateless residents of each foreign country shall be collected in the amounts prescribed by the Secretary of State unless, on the basis of reciprocity, no fee is chargeable. If practicable, fees will correspond to the total amount of all visa, entry, residence, or other similar fees, taxes or charges assessed or levied against nationals of the United States by the foreign countries of which such nonimmigrants are nationals or stateless residents.
(b) Fees when more than one alien included in visa. A single nonimmigrant visa may be issued to include all eligible family members if the spouse and unmarried minor children of a principal alien are included in one passport. Each alien must execute a separate application. The name of each family member shall be inserted in the space provided in the visa stamp. The visa fee to be collected shall equal the total of the fees prescribed by the Secretary of State for each alien included in the visa, unless upon a basis of reciprocity a lesser fee is chargeable.
(c) Certain aliens exempted from fees. (1) Upon a basis of reciprocity, or as provided in section 13(a) of the Headquarters Agreement with the United Nations (61 Stat. 716; 22 U.S.C. 287, Note), no fee shall be collected for the application for or issuance of a nonimmigrant visa to an alien who is within a class of nonimmigrants classifiable under the visa symbols A, G, C-2, C-3, or NATO, or B-1 issued for participation in an official observer mission to the United Nations, or who is issued a diplomatic visa as defined in § 41.26.
(2) The consular officer shall waive the nonimmigrant visa application and issuance fees for an alien who will be engaging in charitable activities for a charitable organization upon the written request of the charitable organization claiming that it will find the fees a financial burden, if the consular officer is satisfied that:
(i) The organization seeking relief from the fees is, if based in the United States, tax-exempt as a charitable organization under the provisions of section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)); if a foreign organization based outside the United States in a country having laws according recognition to charitable institutions, that it establishes that it is recognized as a charitable institution by that government; and if a foreign organization based in a country without such laws, that it is engaged in activities substantially similar to those underlying section 501(c)(3), and
(ii) The charitable activities in which the alien will engage are specified and will be a part of, or will be related to and in support of, the organization’s provision of services, including but not limited to health care, food and housing, job training, and similar direct services and assistance to the poor and needy, and
(iii) The request includes the location of the proposed activities, the number and identifying data of each of the alien(s) who will be applying for visas, and
(iv) The proposed duration of the alien(s)’s temporary stay in the United States is reasonably consistent with the charitable purpose for which the alien(s) seek to enter the United States.
(3) Foreign national employees of the U. S. Government who are travelling to the United States on official business in connection with that employment.
(d) Refund of fees. A fee collected for the issuance of a nonimmigrant visa is refundable only if the principal officer at a post or the officer in charge of a consular section determines that the visa was issued in error or could not be used as a result of action taken by the U.S. Government for which the alien was not responsible and over which the alien had no control.
(e)(1) Visa processing surcharge. In addition to the collection of the fee prescribed in paragraph (a) of this section, a consular officer shall collect or ensure the collection of a surcharge for the processing of applications for machine readable nonimmigrant visas and for machine readable combined border crossing cards in the amount specified by the Secretary of State from such applicants as the Secretary of State shall designate. Such surcharge is refundable only if, as a result of action taken by the U.S. Government for which the alien was not responsible and over which the alien had no control, the alien’s application is not processed.
(2) Notwithstanding paragraph (e)(1) of this section, a consular officer shall collect or insure the collection of a processing fee for a machine-readable combined border crossing card and nonimmigrant visa in an amount determined by the Secretary and set forth in 22 CFR 22.1 to be sufficient only to cover the cost for manufacturing the combined card and visa if:
(i) The alien is a Mexican citizen under the age of 15;
(ii) The alien is applying in Mexico; and
(iii) The alien has at least one parent or guardian who has a visa or is applying for a machine-readable combined border crossing card and visa.
§ 41.108 Medical examination.
(a) Requirements for medical examination. An applicant for a nonimmigrant visa shall be required to take a medical examination if:
(1) The alien is an applicant for a K nonimmigrant visa as a fiance(e) of a U.S. citizen or as the child of such an applicant; or,
(2) The alien is seeking admission for medical treatment and the consular officer considers a medical examination advisable; or,
(3) The consular officer has reason to believe that a medical examination might disclose that the alien is medically ineligible to receive a visa.
(b) Examination by panel physician. The required examination, which must be carried out in accordance with United States Public Health Service regulations, shall be conducted by a physician selected by the alien from a panel of physicians approved by the consular officer or, if the alien is in the United States, by a medical officer of the United States Public Health Service or by a contract physician from a list of physicians approved by the DHS for the examination of INA 245 adjustment of status applicants.
(c) Panel physician facility requirements. A consular officer may not include the name of a physician on the panel of physicians referred to in paragraph (b) of this section unless the physician has facilities to perform required serological and X-ray tests or is in a position to refer applicants to a qualified laboratory for such tests.
Subpart K – Issuance of Nonimmigrant Visa
§ 41.111 Authority to issue visa.
(a) Issuance outside the United States. Any consular officer is authorized to issue regular and official visas. Diplomatic visas may be issued only by:
(1) A consular officer attached to a U.S. diplomatic mission, if authorized to do so by the Chief of Mission; or
(2) A consular officer assigned to a consular office under the jurisdiction of a diplomatic mission, if so authorized by the Department or the Chief, Deputy Chief, or Counselor for Consular Affairs of that mission, or, if assigned to a consular post not under the jurisdiction of a diplomatic mission, by the principal officer of that post.
(b) Issuance in the United States in certain cases. The Deputy Assistant Secretary for Visa Services and such officers of the Department as the former may designate are authorized, in their discretion, to issue nonimmigrant visas, including diplomatic visas, in the United States, to:
(1) Qualified applicants who are currently maintaining status and are properly classifiable in the A, C-2, C-3, G or NATO category and intend to reenter the United States in that status after a temporary absence abroad and who also present evidence that:
(i) They have been lawfully admitted in that status or have, after admission, had their classification changed to that status; and
(ii) Their period of authorized stay in the United States in that status has not expired; and
(2) Children who are born in the United States, but who are not subject to the jurisdiction thereof because they are born to certain qualified individuals who are currently maintaining status and are properly classifiable in the A, C-2, C-3, G or NATO category.
(3) Other qualified applicants who:
(i) Are currently maintaining status in the E, H, I, L, O, or P nonimmigrant category;
(ii) Intend to reenter the United States in that status after a temporary absence abroad; and
(iii) Who also present evidence that:
(A) They were previously issued visas at a consular office abroad and admitted to the United States in the status which they are currently maintaining; and
(B) Their period of authorized admission in that status has not expired.
§ 41.112 Validity of visa.
(a) Significance of period of validity of visa. The period of validity of a nonimmigrant visa is the period during which the alien may use it in making application for admission. The period of visa validity has no relation to the period of time the immigration authorities at a port of entry may authorize the alien to stay in the United States.
(b) Validity of visa and number of applications for admission. (1) Except as provided in paragraphs (c) and (d) of this section, a nonimmigrant visa shall have the validity prescribed in schedules provided to consular officers by the Department, reflecting insofar as practicable the reciprocal treatment accorded U.S. nationals, U.S. permanent residents, or aliens granted refugee status in the U.S. by the government of the country of which the alien is a national, permanent resident, refugee or stateless resident.
(2) Notwithstanding paragraph (b)(1) of this section, United States nonimmigrant visas shall have a maximum validity period of 10 years.
(3) An unexpired visa is valid for application for admission even if the passport in which the visa is stamped has expired, provided the alien is also in possession of a valid passport issued by the authorities of the country of which the alien is a national.
(c) Limitation on validity. If warranted in an individual case, a consular officer may issue a nonimmigrant visa for:
(1) A period of validity that is less than that prescribed on a basis of reciprocity,
(2) A number of applications for admission within the period of the validity of the visa that is less than that prescribed on a basis of reciprocity,
(3) Application for admission at a specified port or at specified ports of entry, or
(4) Use on and after a given date subsequent to the date of issuance.
(d) Automatic extension of validity at ports of entry. (1) Provided that the requirements set out in paragraph (d)(2) of this section are fully met, the following provisions apply to nonimmigrant aliens seeking readmission at ports of entry:
(i) The validity of an expired nonimmigrant visa issued under INA 101(a)(15) may be considered to be automatically extended to the date of application for readmission; and
(ii) In cases where the original nonimmigrant classification of an alien has been changed by DHS to another nonimmigrant classification, the validity of an expired or unexpired nonimmigrant visa may be considered to be automatically extended to the date of application for readmission, and the visa may be converted as necessary to that changed classification.
(2) The provisions in paragraph (d)(1) of this section are applicable only in the case of a nonimmigrant alien who:
(i) Is in possession of a Form I-94, Arrival-Departure Record, endorsed by DHS to show an unexpired period of initial admission or extension of stay, provided that in the case of a qualified F student or the accompanying spouse or child of such student, is in possession of a current Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, issued by the school that the student has been authorized to attend by DHS and endorsed by the issuing school official to indicate the period of initial admission or extension of stay authorized by DHS, and provided that in the case of a qualified J exchange visitor or the accompanying spouse or child of such exchange visitor, is in possession of a current Form DS-2019, Certificate of Eligibility for Exchange Visitor Status (J-NONIMMIGRANT), issued and endorsed by the Department of State-designated sponsor of the exchange program, to indicate the period of initial admission authorized by DHS or the extension of stay authorized by the Department of State;
(ii) Is applying for readmission after an absence not exceeding 30 days solely in contiguous territory, or, in the case of a student or exchange visitor or accompanying spouse or child meeting the stipulations of paragraph (d)(2)(i) of this section, after an absence not exceeding 30 days in contiguous territory or adjacent islands other than Cuba;
(iii) Has maintained and intends to resume nonimmigrant status;
(iv) Is applying for readmission within the authorized period of initial admission or extension of stay;
(v) Is in possession of a valid passport;
(vi) Does not require authorization for admission under INA 212(d)(3); and
(vii) Has not applied for a new visa while abroad.
(3) The provisions in paragraphs (d)(1) and (d)(2) of this section shall not apply to the nationals of countries identified as supporting terrorism in the Department’s annual report to Congress entitled Patterns of Global Terrorism.
§ 41.113 Procedures in issuing visas.
(a) Evidence of visa. Except as provided in paragraph (b) of this section, a nonimmigrant visa shall be evidenced by a physical visa placed in the alien’s passport or by an electronic visa located in the Department’s records. The appropriate symbol as prescribed in § 41.12, showing the classification of the alien, shall be entered on the visa.
(b) Cases in which a physical visa is not placed in passport. In the following cases a physical visa shall be placed on the prescribed Form DS-232. In issuing such a visa, a notation shall be made on the Form DS-232 on which the visa is placed, specifying the pertinent subparagraph of this paragraph under which the action is taken.
(1) The alien’s passport was issued by a government with which the United States does not have formal diplomatic relations, unless the Department has specifically authorized the placing of the visa in such passport;
(2) The passport requirement has been waived; or
(3) In other cases as authorized by the Department.
(c) Visa format. A machine-readable visa shall be in the format designated by the Department, and contain, at a minimum, the following data:
(1) Full name of the applicant;
(2) Visa type/class;
(3) Location of the visa issuing office;
(4) Passport number;
(5) Sex;
(6) Date of birth;
(7) Nationality;
(8) Number of applications for admission authorized, or the letter “M” for multiple applications for admission authorized;
(9) Date of issuance;
(10) Date of expiration;
(11) Visa control number.
(d) Insertion of name, petition, and derivative status notation. (1) The surname and given name of the visa recipient shall be shown on the visa in the space provided.
(2) If the visa is being issued upon the basis of a petition approved by the Secretary of Homeland Security, the number of the petition, if any, the period for which the ‘alien’s admission has been authorized, and the name of the petitioner shall be reflected in the annotation field on the visa.
(3) In the case of an alien who derives status from a principal alien, the name of the principal alien and of the petitioner shall be reflected in the annotation field of the visa.
(e) Period of validity. If a nonimmigrant visa is issued for an unlimited number of applications for admission within the period of validity, the letter “M” shall be shown under the word “entries”. Otherwise the number of permitted applications for admission shall be identified numerically. The date of issuance and the date of expiration of the visa shall be shown at the appropriate places in the visa by day, month, and year in that order. The standard three letter abbreviation for the month shall be used in all cases.
(f) Restriction to specified port(s) of entry. If a nonimmigrant visa is valid for admission only at one or more specified ports of entry, the names of those ports shall be entered in the annotation field. In cases where there is insufficient room to list the port(s) of entry, they shall be listed by hand on a clean passport page. Reference shall be made in the visa’s annotation field citing the passport page upon which the port(s) of entry are listed.
(g) Delivery of visa. In issuing a nonimmigrant visa, the consular officer should deliver the passport containing the visa, or the prescribed Form DS-232 which bears the visa, to the alien or to the alien’s authorized representative. Any relevant evidence furnished by the alien in accordance with § 41.103(b) should be retained, as required or necessary.
(h) Disposition of supporting documents. Original supporting documents furnished by the alien should be returned for presentation, if necessary, to the immigration authorities at the port of entry. Duplicate copies may be retained in the consular system, as required or necessary.
(i) Review of nonimmigrant visa issuances. Nonimmigrant visa issuances must be reviewed, in accordance with guidance by the Secretary of State, by consular supervisors, or a designated alternate, to ensure compliance with applicable laws and procedures.
Subpart L – Refusals and Revocations
§ 41.121 Refusal of nonimmigrant visas.
(a) Grounds for refusal. Nonimmigrant visa refusals must be based on legal grounds, such as one or more provisions of INA 212(a), INA 212(e), INA 214(b) or (f) or (l) (as added by Section 625 of Pub. L. 104-208), INA 221(g), INA 222(g), or other applicable law. Certain classes of nonimmigrant aliens are exempted from specific provisions of INA 212(a) under INA 102 and, upon a basis of reciprocity, under INA 212(d)(8). When a visa application has been properly completed and executed in accordance with the provisions of the INA and the implementing regulations, the consular officer must issue the visa, refuse the visa, or, pursuant to an outstanding order under INA 243(d), discontinue granting the visa.
(b) Refusal procedure. (1) When a consular officer knows or has reason to believe a visa applicant is ineligible and refuses the issuance of a visa, he or she must inform the alien of the ground(s) of ineligibility (unless disclosure is barred under INA 212(b)(2) or (3)) and whether there is, in law or regulations, a mechanism (such as a waiver) to overcome the refusal. The officer shall note the reason for the refusal on the application. Upon refusing the nonimmigrant visa, the consular officer shall retain the original of each document upon which the refusal was based, as well as each document indicating a possible ground of ineligibility, and should return all other supporting documents supplied by the applicant.
(2) If an alien, who has not yet filed a visa application, seeks advice from a consular officer, who knows or has reason to believe that the alien is ineligible to receive a visa on grounds which cannot be overcome by the presentation of additional evidence, the officer shall so inform the alien. The consular officer shall inform the applicant of the provision of law or regulations upon which a refusal of a visa, if applied for, would be based (subject to the exception in paragraph (b)(1) of this section). If practicable, the consular officer should request the alien to execute a nonimmigrant visa application in order to make a formal refusal. If the individual fails to execute a visa application in these circumstances, the consular officer shall treat the matter as if a visa had been refused and create a record of the presumed ineligibility which shall be filed in the consular office.
(c) Nonimmigrant refusals must be reviewed, in accordance with guidance by the Secretary of State, by consular supervisors, or a designated alternate, to ensure compliance with laws and procedures. If the ground(s) of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the refusal must be reviewed without delay; that is, on the day of the refusal or as soon as it is administratively possible. If the ground(s) of ineligibility may be overcome by the presentation of additional evidence, and the applicant has indicated the intention to submit such evidence, a review of the refusal may be deferred for not more than 120 days. If the reviewing officer disagrees with the decision and he or she has a consular commission and title, the reviewing officer can assume responsibility and readjudicate the case. If the reviewing officer does not have a consular commission and title, he or she must consult with the adjudicating officer, or with the Visa Office, to resolve any disagreement.
(d) Review of refusal by Department. The Department may request a consular officer in a specific case or in specified classes of cases to submit a report if a visa has been refused. The Department will review each report and may furnish an advisory opinion to the consular officer for assistance in considering the case further. If the officer believes that action contrary to an advisory opinion should be taken, the case shall be resubmitted to the Department with an explanation of the proposed action. Rulings of the Department concerning an interpretation of law, as distinguished from an application of the law to the facts, shall be binding upon consular officers.
§ 41.122 Revocation of visas.
(a) Grounds for revocation by consular officers. A consular officer, the Secretary, or a Department official to whom the Secretary has delegated this authority is authorized to revoke a nonimmigrant visa at any time, in his or her discretion.
(b) Provisional revocation – (1) General. A provisional revocation is subject to reversal through internal procedures established by the Department of State. Upon reversal of the revocation, the visa immediately resumes the validity provided for on its face. Provisional revocation shall have the same force and effect as any other visa revocation under INA 221(i), unless and until the revocation has been reversed. Neither the provisional revocation of a visa nor the reversal of a provisional revocation limits, in any way, the revocation authority provided for under INA 221(i), with respect to the particular visa or any other visa.
(2) Pending visa eligibility determination. A consular officer, the Secretary, or any Department official to whom the Secretary has delegated this authority may provisionally revoke a nonimmigrant visa while considering information related to whether a visa holder is eligible for the visa.
(3) Automatic provisional revocation based on failure to comply with all EVUS requirements. Visas held by individuals subject to the Electronic Visa Update System (EVUS) who have not complied with the conditions described in 8 CFR 215.24 or whose notification of compliance has expired or been rescinded are automatically provisionally revoked and are no longer valid for travel to the United States, without further notice to the visa holder. The automatic provisional revocation pursuant to this paragraph (b)(3) shall be automatically reversed upon compliance with EVUS requirements set out at 8 CFR part 215, subpart B, as confirmed by receipt of a notification of compliance. A visa revoked on grounds other than failure to comply with EVUS shall remain revoked, notwithstanding compliance with EVUS.
(c) Notice of revocation. Unless otherwise instructed by the Department, a consular officer shall, if practicable, notify the alien to whom the visa was issued that the visa was revoked or provisionally revoked. Regardless of delivery of such notice, once the revocation has been entered into the Department’s Consular Lookout and Support System (CLASS), the visa is no longer to be considered valid for travel to the United States. The date of the revocation shall be indicated in CLASS and on any notice sent to the alien to whom the visa was issued. This paragraph (c) does not apply to provisional revocations under paragraph (b)(3) of this section.
(d) Procedure for physically canceling visas. Except for provisional revocations pursuant to paragraph (b)(3) of this section, a nonimmigrant visa that is revoked shall be canceled by writing or stamping the word “REVOKED” plainly across the face of the visa, if the visa is available to the consular officer. The failure or inability to physically cancel the visa does not affect the validity of the revocation.
(e) Revocation of visa by immigration officer. An immigration officer is authorized to revoke a valid visa by physically canceling it in accordance with the procedure described in paragraph (d) of this section if:
(1) The alien obtains an immigrant visa or an adjustment of status to that of permanent resident;
(2) The alien is ordered excluded from the United States under INA 236, as in effect prior to April 1, 1997, or removed from the United States pursuant to INA 235;
(3) The alien is notified pursuant to INA 235 by an immigration officer at a port of entry that the alien appears to be inadmissible to the United States, and the alien requests and is granted permission to withdraw the application for admission;
(4) A final order of deportation or removal or a final order granting voluntary departure with an alternate order of deportation or removal is entered against the alien;
(5) The alien has been permitted by DHS to depart voluntarily from the United States;
(6) DHS has revoked a waiver of inadmissibility granted pursuant to INA 212(d)(3)(A) in relation to the visa that was issued to the alien;
(7) The visa is presented in connection with an application for admission to the United States by a person other than the alien to whom the visa was issued;
(8) The visa has been physically removed from the passport in which it was issued; or
(9) The visa has been issued in a combined Mexican or Canadian B-1/B-2 visa and border crossing identification card, and the immigration officer makes the determination specified in § 41.32(c) with respect to the alien’s Mexican citizenship and/or residence or the determination specified in § 41.33(b) with respect to the alien’s status as a permanent resident of Canada.
§ 41.123 Discontinuance of granting nonimmigrant visa pursuant to INA 243(d).
(a) Grounds for discontinuance of granting a visa. Consular officers in a country subject to an order by the Secretary under INA 243(d) shall discontinue granting nonimmigrant visas for categories of nonimmigrant visas specified in the order of the Secretary (or his or her designee), and pursuant to procedures dictated by the Department.
(b) Discontinuance procedure – (1) Applications refused or discontinued only. Starting on the day the Secretary’s (or designee’s) order to discontinue granting visas takes effect (effective date), no visas falling within the scope of the order, as described by the order, may be issued in the referenced country to an applicant who falls within the scope of the order, except as otherwise expressly provided in the order or related Department instructions. Beginning on the effective date, a consular officer must refuse the visa if the individual is not eligible for the visa under INA 212(a), INA 221(g), or other applicable law, but if the applicant is otherwise eligible, must process the application by discontinuing granting, regardless of when the application was filed, if the applicant falls within the scope of the order and no exception applies. The application processing fee will not be refunded. The requirement to discontinue issuance may not be waived, and continues until the sanction is terminated as described below.
(2) Geographic applicability. Visa sanctions under INA 243(d) only apply to visa issuance in the country that is sanctioned. If a consular officer has a reason to believe that a visa applicant potentially subject to INA 243(d) sanctions is applying at a post outside the sanctioned country to evade visa sanctions under INA 243(d) (e.g., the applicant provides no credible explanation for applying outside the country), the consular officer will transfer the case to the consular post in the consular district where INA 243(d) sanctions apply, review any other applicable Department instructions, and proceed accordingly. When cases are transferred to a consular district where INA 243(d) sanctions apply, the adjudication will be subject to the discontinuation of issuance under the sanctions.
(c) Termination of sanction. The Department shall notify consular officers in an affected country when the sanction under INA 243(d) has been lifted. After notification, normal consular operations may resume consistent with these regulations and guidance from the Department. Once the sanction under INA 243(d) is lifted, no new application processing fee is required in cases where issuance has been discontinued pursuant to an INA 243(d) order, and consular officers in the affected post must adjudicate the visa consistent with regulations and Department guidance. Consular officers may require applicants to update the visa application forms, must conduct any necessary adjudicatory steps, and may re-interview the applicant to determine eligibility.
PART 42 – VISAS: DOCUMENTATION OF IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
Subpart A – Visa and Passport Not Required for Certain Immigrants
§ 42.1 Aliens not required to obtain immigrant visas.
An immigrant within any of the following categories is not required to obtain an immigrant visa:
(a) Aliens lawfully admitted for permanent residence. An alien who has previously been lawfully admitted for permanent residence and who is not required under the regulations of the Department of Homeland Security to present a valid immigrant visa upon returning to the United States.
(b) Alien members of U.S. Armed Forces. An alien member of the U.S. Armed Forces bearing military identification, who has previously been lawfully admitted for permanent residence and is coming to the United States under official orders or permit of those Armed Forces.
(c) Aliens entering from Guam, Puerto Rico, or the Virgin Islands. An alien who has previously been lawfully admitted for permanent residence who seeks to enter the continental United States or any other place under the jurisdiction of the United States directly from Guam, Puerto Rico, or the Virgin Islands of the United States.
(d) Child born after issuance of visa to accompanying parent. An alien child born after the issuance of an immigrant visa to an accompanying parent, who will arrive in the United States with the parent, and apply for admission during the period of validity of the visa issued to the parent.
(e) Child born of a national or lawful permanent resident mother during her temporary visit abroad. An alien child born during the temporary visit abroad of a mother who is a national or lawful permanent resident of the United States if applying for admission within 2 years of birth and accompanied by either parent applying and eligible for readmission as a permanent resident upon that parent’s first return to the United States after the child’s birth.
(f) American Indians born in Canada. An American Indian born in Canada and having at least 50 per centum of blood of the American Indian race.
§ 42.2 Aliens not required to present passports.
An immigrant within any of the following categories is not required to present a passport in applying for an immigrant visa:
(a) Certain relatives of U.S. citizens. An alien who is the spouse, unmarried son or daughter, or parent, of a U.S. citizen, unless the alien is applying for a visa in the country of which the applicant is a national and the possession of a passport is required for departure.
(b) Returning aliens previously lawfully admitted for permanent residence. An alien previously lawfully admitted for permanent residence who is returning from a temporary visit abroad, unless the alien is applying for a visa in the country of which the applicant is a national and the possession of a passport is required for departure.
(c) Certain relatives of aliens lawfully admitted for permanent residence. An alien who is the spouse, unmarried son or daughter, or parent of an alien lawfully admitted for permanent residence, unless the alien is applying for a visa in the country of which the applicant is a national and the possession of a passport is required for departure.
(d) Stateless persons. An alien who is a stateless person, and accompanying spouse and unmarried son or daughter.
(e) Nationals of Communist-controlled countries. An alien who is a national of a Communist-controlled country and who is unable to obtain a passport from the government of that country, and accompanying spouse and unmarried son or daughter.
(f) Alien members of U.S. Armed Forces. An alien who is a member of the U.S. Armed Forces.
(g) Beneficiaries of individual waivers. (1) An alien who would be within one of the categories described in paragraphs (a) through (d) of this section except that the alien is applying for a visa in a country of which the applicant is a national and possession of a passport is required for departure, in whose case the passport requirement has been waived by the Secretary of State, as evidence by a specific instruction from the Department.
(2) An alien unable to obtain a passport and not within any of the foregoing categories, in whose case the passport requirement imposed by § 42.64(b) or by DHS regulations has been waived by the Secretary of Homeland Security and the Secretary of State as evidenced by a specific instruction from the Department.
Subpart B – Classification and Foreign State Chargeability
§ 42.11 Classification symbols.
A visa issued to an immigrant alien within one of the classes described below shall bear an appropriate visa symbol to show the classification of the alien.
Immigrants
| Symbol | Class | Section of law |
|---|---|---|
| IR1 | Spouse of U.S. Citizen | 201(b). |
| IR2 | Child of U.S. Citizen | 201(b). |
| IR3 | Orphan Adopted Abroad by U.S. Citizen | 201(b) & 101(b)(1)(F). |
| IH3 | Child from Hague Convention Country Adopted Abroad by U.S. Citizen | 201(b) & 101(b)(1)(G). |
| IR4 | Orphan to be Adopted in U.S. by U.S. Citizen | 201(b) & 101(b)(1)(F). |
| IH4 | Child from Hague Convention Country to be Adopted in U.S. by U.S. Citizen | 201(b) & 101(b)(1)(G). |
| IR5 | Parent of U.S. Citizen at Least 21 Years of Age | 201(b). |
| CR1 | Spouse of U.S. Citizen (Conditional Status) | 201(b) & 216. |
| CR2 | Child of U.S. Citizen (Conditional Status) | 201(b) & 216. |
| IW1 | Certain Spouses of Deceased U.S. Citizens | 201(b). |
| IW2 | Child of IW1 | 201(b). |
| IB1 | Self-petition Spouse of U.S. Citizen | 204(a)(1)(A)(iii). |
| IB2 | Self-petition child of U.S. Citizen | 204(a)(1)(A)(iv). |
| IB3 | Child of IB1 | 204(a)(1)(A)(iii). |
| IB5 | Self-petition Parent of U.S. Citizen | 204(a)(1)(A)(vii) |
| VI5 | Parent of U.S. Citizen Who Acquired Permanent Resident Status Under the Virgin Islands Nonimmigrant Alien Adjustment Act | 201(b) & sec. 2 of the Virgin Islands Nonimmigrant Alien Adjustment Act, (Pub. L. 97-271). |
| AM1 | Vietnam Amerasian Principal | 584(b)(1)(A) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Pub. L. 100-102) as amended. |
| AM2 | Spouse or Child of AM1 | 584(b)(1)(A) and 584(b)(1)(B) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Public Law 100-102) as amended. |
| AM3 | Natural Mother of AM1 (and Spouse or Child of Such Mother) or Person Who has Acted in Effect as the Mother, Father, or Next-of-Kin of AM1 (and Spouse or Child of Such Person) | 584(b)(1)(A) and 584(b)(1)(C) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Public Law 100-102) as amended. |
| SB1 | Returning Resident | 101(a)(27)(A). |
| SC1 | Person Who Lost U.S. Citizenship by Marriage | 101(a)(27)(B) & 324(a). |
| SC2 | Person Who Lost U.S. Citizenship by Serving in Foreign Armed Forces | 101(a)(27)(B) & 327. |
| SI1 | Certain Aliens Employed by the U.S. Government in Iraq or Afghanistan as Translators or Interpreters | Section 1059 of Pub. L. 109-163 as amended by Pub. L. 110-36. |
| SI2 | Spouse of SI1 | Section 1059 of Pub. L. 109-163 as amended by Pub. L. 110-36. |
| SI3 | Child of SI1 | Section 1059 of Pub. L. 109-163 as amended by Pub. L. 110-36. |
| SM1 | Alien Recruited Outside the United States Who Has Served or is Enlisted to Serve in the U.S. Armed Forces for 12 Years | 101(a)(27)(K). |
| SM2 | Spouse of SM1 | 101(a)(27)(K). |
| SM3 | Child of SM1 | 101(a)(27)(K). |
| SQ1 | Certain Iraqis or Afghans Employed by or on Behalf of the U.S. Government | Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8 and Section 1244 of Pub. L. 110-181. |
| SQ2 | Spouse of SQ1 | Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8 and Section 1244 of Pub. L. 110-181. |
| SQ3 | Child of SQ1 | Section 602(b), Division F, Title VI, Omnibus Appropriations Act of 2009, Pub. L. 111-8 and Section 1244 of Pub. L. 110-181. |
| SU2 | Spouse of U1 | INA 245(m)(3) & INA 101(a)(15)(U)(ii). |
| SU3 | Child of U1 | INA 245(m)(3) & INA 101(a)(15)(U)(ii). |
| SU5 | Parent of U1 | INA 245(m)(3) & INA 101(a)(15)(U)(ii). |
| F11 | Unmarried Son or Daughter of U.S. Citizen | 203(a)(1). |
| F12 | Child of F11 | 203(d) & 203(a)(1). |
| B11 | Self-petition Unmarried Son or Daughter of U.S. Citizen | 204(a)(1)(A)(iv) & 203(a)(1). |
| B12 | Child of B11 | 203(d), 204(a)(1)(A)(iv) & 203(a)(1). |
| F21 | Spouse of Lawful Permanent Resident | 203(a)(2)(A). |
| F22 | Child of Lawful Permanent Resident | 203(a)(2)(A). |
| F23 | Child of F21 or F22 | 203(d) & 203(a)(2)(A). |
| F24 | Unmarried Son or Daughter of Lawful Permanent Resident | 203(a)(2)(B). |
| F25 | Child of F24 | 203(d) & 203(a)(2)(B). |
| C21 | Spouse of Lawful Permanent Resident (Conditional) | 203(a)(2)(A) & 216. |
| C22 | Child of Alien Resident (Conditional) | 203(a)(2)(A) & 216. |
| C23 | Child of C21 or C22 (Conditional) | 203(d) & 203(a)(2)(A) & 216. |
| C24 | Unmarried Son or Daughter of Lawful Permanent Resident (Conditional) | 203(a)(2)(B) & 216. |
| C25 | Child of F24 (Conditional) | 203(d) & 203(a)(2)(B) & 216. |
| B21 | Self-petition Spouse of Lawful Permanent Resident | 204(a)(1)(B)(ii). |
| B22 | Self-petition Child of Lawful Permanent Resident | 204(a)(1)(B)(iii). |
| B23 | Child of B21 or B22 | 203(d) & 204(a)(1)(B)(ii). |
| B24 | Self-petition Unmarried Son or Daughter of Lawful Permanent Resident | 204(a)(1)(B)(iii). |
| B25 | Child of B24 | 203(d) & 204(a)(1)(B)(iii). |
| FX1 | Spouse of Lawful Permanent Resident | 202(a)(4)(A) & 203(a)(2)(A). |
| FX2 | Child of Lawful Permanent Resident | 202(a)(4)(A) & 203(a)(2)(A). |
| FX3 | Child of FX1 or FX2 | 202(a)(4)(A) & 203(a)(2)(A) & 203(d). |
| CX1 | Spouse of Lawful Permanent Resident (Conditional) | 202(a)(4)(A) & 203(a)(2)(A) & 216. |
| CX2 | Child of Lawful Permanent Resident (Conditional) | 202(a)(4)(A) & 203(a)(2)(A) & 216. |
| CX3 | Child of CX1 or CX2 (Conditional) | 202(a)(4)(A) & 203(a)(2)(A) & 203(d) & 216. |
| BX1 | Self-petition Spouse of Lawful Permanent Resident | 204(a)(1)(B)(ii). |
| BX2 | Self-petition Child of Lawful Permanent Resident | 204(a)(1)(B)(iii). |
| BX3 | Child of BX1 or BX2 | 204(a)(1)(B)(ii) & 203(d). |
| F31 | Married Son or Daughter of U.S. Citizen | 203(a)(3). |
| F32 | Spouse of F31 | 203(d) & 203(a)(3). |
| F33 | Child of F31 | 203(d) & 203(a)(3). |
| C31 | Married Son or Daughter of U.S. Citizen (Conditional) | 203(a)(3) & 216. |
| C32 | Spouse of C31 (Conditional) | 203(d) & 203(a)(3) & 216. |
| C33 | Child of C31 (Conditional) | 203(d) & 203(a)(3) & 216. |
| B31 | Self-petition Married Son or Daughter of U.S. Citizen | 204(a)(1)(A)(iv) & 203(a)(3). |
| B32 | Spouse of B31 | 203(d), 204(a)(1)(A)(iv) & 203(a)(3). |
| B33 | Child of B31 | 203(d), 204(a)(1)(A)(iv) & 203(a)(3). |
| F41 | Brother or Sister of U.S. Citizen at Least 21 Years of Age | 203(a)(4). |
| F42 | Spouse of F41 | 203(d) & 203(a)(4). |
| F43 | Child of F41 | 203(d) & 203(a)(4). |
| E11 | Alien with Extraordinary Ability | 203(b)(1)(A). |
| E12 | Outstanding Professor or Researcher | 203(b)(1)(B). |
| E13 | Multinational Executive or Manager | 203(b)(1)(C). |
| E14 | Spouse of E11, E12, or E13 | 203(d) & 203(b)(1)(A) & 203(b)(1)(B) & 203(b)(1)(C). |
| E15 | Child of E11, E12, or E13 | 203(d) & 203(b)(1)(A) & 203(b)(1)(B) & 203(b)(1)(C). |
| E21 | Professional Holding Advanced Degree or Alien of Exceptional Ability | 203(b)(2). |
| E22 | Spouse of E21 | 203(d) & 203(b)(2). |
| E23 | Child of E21 | 203(d) & 203(b)(2). |
| E31 | Skilled Worker | 203(b)(3)(A)(i). |
| E32 | Professional Holding Baccalaureate Degree | 203(b)(3)(A)(ii). |
| E34 | Spouse of E31 or E32 | 203(d) & 203(b)(3)(A)(i) & 203(b)(3)(A)(ii). |
| E35 | Child of E31 or E32 | 203(d) & 203(b)(3)(A)(i) & 203(b)(3)(A)(ii). |
| EW3 | Other Worker (Subgroup Numerical Limit) | 203(b)(3)(A)(iii). |
| EW4 | Spouse of EW3 | 203(d) & 203(b)(3)(A)(iii). |
| EW5 | Child of EW3 | 203(d) & 203(b)(3)(A)(iii). |
| BC1 | Broadcaster in the U.S. employed by the International Broadcasting Bureau of the Broadcasting Board of Governors or a grantee of such organization | 101(a)(27)(M) & 203(b)(4). |
| BC2 | Accompanying spouse of BC1 | 101(a)(27)(M) & 203(b)(4). |
| BC3 | Accompanying child of BC1 | 101(a)(27)(M) & 203(b)(4). |
| SD1 | Minister of Religion | 101(a)(27)(C)(ii)(I) & 203(b)(4). |
| SD2 | Spouse of SD1 | 101(a)(27)(C)(ii)(I) & 203(b)(4). |
| SD3 | Child of SD1 | 101(a)(27)(C)(ii)(I) & 203(b)(4). |
| SE1 | Certain Employees or Former Employees of the U.S. Government Abroad | 101(a)(27)(D) & 203(b)(4). |
| SE2 | Spouse of SE1 | 101(a)(27)(D) & 203(b)(4). |
| SE3 | Child of SE1 | 101(a)(27)(D) & 203(b)(4). |
| SF1 | Certain Former Employees of the Panama Canal Company or Canal Zone Government | 101(a)(27)(E) & 203 (b)(4). |
| SF2 | Spouse or Child of SF1 | 101(a)(27)(E) & 203 (b)(4). |
| SG1 | Certain Former Employees of the U.S. Government in the Panama Canal Zone | 101(a)(27)(F) & 203 (b)(4). |
| SG2 | Spouse or Child of SG1 | 101(a)(27)(F) & 203 (b)(4). |
| SH1 | Certain Former Employees of the Panama Canal Company or Canal Zone Government on April 1, 1979 | 101(a)(27)(G) & 203 (b)(4). |
| SH2 | Spouse or Child of SH1 | 101(a)(27)(G) & 203(b)(4). |
| SJ1 | Certain Foreign Medical Graduates (Adjustments Only) | 101(a)(27)(H). |
| SJ2 | Accompanying Spouse or Child of SJ1 | 101(a)(27)(H) & 203(b)(4). |
| SK1 | Certain Retired International Organization employees | 101(a)(27)(I)(iii) & 203(b)(4). |
| SK2 | Spouse of SK1 | 101(a)(27)(I)(iv) & 203(b)(4). |
| SK3 | Certain Unmarried Sons or Daughters of an International Organization Employee | 101(a)(27)(I)(i) & 203(b)(4). |
| SK4 | Certain Surviving Spouses of a deceased International Organization Employee | 101(a)(27)(I)(ii) & 203(b)(4). |
| SL1 | Juvenile Court Dependent (Adjustment Only) | 101(a)(27)(J) & 203(b)(4). |
| SN1 | Certain retired NATO6 civilians | 101(a)(27)(L) & 203(b)(4). |
| SN2 | Spouse of SN1 | 101(a)(27)(L) & 203(b)(4). |
| SN3 | Certain unmarried sons or daughters of NATO6 civilian employees | 101(a)(27)(L) & 203(b)(4). |
| SN4 | Certain surviving spouses of deceased NATO6 civilian employees | 101(a)(27)(L) & 203(b)(4). |
| SP | Alien Beneficiary of a petition or labor certification application filed prior to September 11, 2001, if the petition or application was rendered void due to a terrorist act of September 11, 2001. Spouse, child of such alien, or the grandparent of a child orphaned by a terrorist act of September 11, 2001 | Section 421 of Public Law 107-56. |
| SR1 | Certain Religious Workers | 101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4). |
| SR2 | Spouse of SR1 | 101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4). |
| SR3 | Child of SR1 | 101(a)(27)(C)(ii)(II) & (III) as amended, & 203(b)(4). |
| C51 | Employment Creation OUTSIDE Targeted Areas | 203(b)(5)(A). |
| C52 | Spouse of C51 | 203(d) & 203(b)(5)(A). |
| C53 | Child of C51 | 203(d) & 203(b)(5)(A). |
| T51 | Employment Creation IN Targeted Rural/High Unemployment Area | 203(b)(5)(B). |
| T52 | Spouse of T51 | 203(d) & 203 (b)(5)(B). |
| T53 | Child of T51 | 203(d) & 203(b)(5)(B). |
| R51 | Investor Pilot Program, Not in Targeted Area | 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended. |
| R52 | Spouse of R51 | 203(d) & 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended. |
| R53 | Child of R51 | 203(d) & 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended. |
| I51 | Investor Pilot Program, in Targeted Area | 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended. |
| I52 | Spouse of I51 | 203(d) & 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended. |
| I53 | Child of I51 | 203(d) & 203(b)(5) & Sec. 610 of the Departments of Commerce, Justice, and State, the Judiciary and Related Agencies Appropriations Act, 1993 (Pub. L. 102-395), as amended. |
| DV1 | Diversity Immigrant | 203(c). |
| DV2 | Spouse of DV1 | 203(d) & 203(c). |
| DV3 | Child of DV1 | 203(d) & 203(c). |
§ 42.12 Rules of chargeability.
(a) Applicability. An immigrant shall be charged to the numerical limitation for the foreign state or dependent area of birth, unless the case falls within one of the exceptions to the general rule of chargeability provided by INA 202(b) and paragraphs (b) through (e) of this section to prevent the separation of families or the alien is classifiable under:
(1) INA 201(b);
(2) INA 101(a)(27) (A) or (B);
(3) Section 112 of Public Law 101-649;
(4) Section 124 of Public Law 101-649;
(5) Section 132 of Public Law 101-649;
(6) Section 134 of Public Law 101-649; or
(7) Section 584(b)(1) as contained in section 101(e) of Public Law 100-202.
(b) Exception for child. If necessary to prevent the separation of a child from the alien parent or parents, an immigrant child, including a child born in a dependent area, may be charged to the same foreign state to which a parent is chargeable if the child is accompanying or following to join the parent, in accordance with INA 202(b)(1).
(c) Exception for spouse. If necessary to prevent the separation of husband and wife, an immigrant spouse, including a spouse born in a dependent area, may be charged to a foreign state to which a spouse is chargeable if accompanying or following to join the spouse, in accordance with INA 202(b)(2).
(d) Exception for alien born in the United States. An immigrant who was born in the United States shall be charged to the foreign state of which the immigrant is a citizen or subject. If not a citizen or subject of any country, the alien shall be charged to the foreign state of last residence as determined by the consular officer, in accordance with INA 202(b)(3).
(e) Exception for alien born in foreign state in which neither parent was born or had residence at time of alien’s birth. An alien who was born in a foreign state, as defined in § 40.1, in which neither parent was born, and in which neither parent had a residence at the time of the applicant’s birth, may be charged to the foreign state of either parent as provided in INA 202(b)(4). The parents of such an alien are not considered as having acquired a residence within the meaning of INA 202(b)(4), if, at the time of the alien’s birth within the foreign state, the parents were visiting temporarily or were stationed there in connection with the business or profession and under orders or instructions of an employer, principal, or superior authority foreign to such foreign state.
Subpart C – Immigrants Not Subject to Numerical Limitations of INA 201 and 202
§ 42.21 Immediate relatives.
(a) Entitlement to status. An alien who is a spouse or child of a United States citizen, or a parent of a U.S. citizen at least 21 years of age, shall be classified as an immediate relative under INA 201(b) if the consular officer has received from DHS an approved Petition to Classify Status of Alien Relative for Issuance of an Immigrant Visa, filed on the alien’s behalf by the U.S. citizen and approved in accordance with INA 204, and the officer is satisfied that the alien has the relationship claimed in the petition. An immediate relative shall be documented as such unless the U.S. citizen refuses to file the required petition, or unless the immediate relative is also a special immigrant under INA 101(a)(27) (A) or (B) and not subject to any numerical limitation.
(b) Spouse of a deceased U.S. citizen. The spouse of a deceased U.S. citizen, and each child of the spouse, will be entitled to immediate relative status after the date of the citizen’s death provided the spouse or child meets the criteria of INA 201(b)(2)(A)(i) or of section 423(a)(1) of Public Law 107-56 (USA Patriot Act) and the Consular Officer has received an approved petition from the DHS which accords such status, or official notification of such approval, and the Consular Officer is satisfied that the alien meets those criteria.
(c) Child of a U.S. citizen victim of terrorism. The child of a U.S. citizen slain in the terrorist actions of September 11, 2001, shall retain the status of an immediate relative child (regardless of changes in age or marital status) if the child files a petition for such status within two years of the citizen’s death pursuant to section 423(a)(2) of Public Law 107-56, and the consular officer has received an approved petition according such status or official notification of such approval.
§ 42.22 Returning resident aliens.
(a) Requirements for returning resident status. An alien shall be classifiable as a special immigrant under INA 101(a)(27)(A) if the consular officer is satisfied from the evidence presented that:
(1) The alien had the status of an alien lawfully admitted for permanent residence at the time of departure from the United States;
(2) The alien departed from the United States with the intention of returning and has not abandoned this intention; and
(3) The alien is returning to the United States from a temporary visit abroad and, if the stay abroad was protracted, this was caused by reasons beyond the alien’s control and for which the alien was not responsible.
(b) Documentation needed. Unless the consular officer has reason to question the legality of the alien’s previous admission for permanent residence or the alien’s eligibility to receive an immigrant visa, only those records and documents required under INA 222(b) which relate to the period of residence in the United States and the period of the temporary visit abroad shall be required. If any required record or document is unobtainable, the provisions of § 42.65(d) shall apply.
(c) Returning resident alien originally admitted under the Act of December 28, 1945. An alien admitted into the United States under Section 1 of the Act of December 28, 1945 (“GI Brides Act”) shall not be refused an immigrant visa after a temporary absence abroad solely because of a mental or physical defect or defects that existed at the time of the original admission.
§ 42.23 Certain former U.S. citizens.
(a) [Reserved]
(b) Military expatriates. An alien shall be classifiable as a special immigrant under INA 101(a)(27)(B) if the consular officer is satisfied by appropriate evidence that the alien was formerly a U.S. citizen and that the alien lost citizenship under the circumstances set forth in INA 327.
§ 42.24 Adoption under the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption and the Intercountry Adoption Act of 2000.
(a) Except as described in paragraph (n), for purposes of this section, the definitions in 22 CFR 96.2 apply.
(b) On or after the Convention effective date, as defined in 22 CFR 96.17, a child habitually resident in a Convention country who is adopted by a United States citizen deemed to be habitually resident in the United States in accordance with applicable DHS regulations must qualify for visa status under the provisions of INA section 101(b)(1)(G) as provided in this section. Such a child shall not be accorded status under INA section 101(b)(1)(F), provided that a child may be accorded status under INA section 101(b)(1)(F) if Form I-600A or I-600 was filed before the Convention effective date. Although this part 42 generally applies to the issuance of immigrant visas, this section 42.24 may also provide the basis for issuance of a nonimmigrant visa to permit a Convention adoptee to travel to the United States for purposes of naturalization under INA section 322.
(c) The provisions of this section govern the operations of consular officers in processing cases involving children for whom classification is sought under INA section 101(b)(1)(G), unless the Secretary of State has personally waived any requirement of the IAA or these regulations in a particular case in the interests of justice or to prevent grave physical harm to the child, to the extent consistent with the Convention.
(d) An alien child shall be classifiable under INA section 101(b)(1)(G) only if, before the child is adopted or legal custody for the purpose of adoption is granted, a petition for the child has been received and provisionally approved by a DHS officer or, where authorized by DHS, by a consular officer, and a visa application for the child has been received and annotated in accordance with paragraph (h) of this section by a consular officer. No alien child shall be issued a visa pursuant to INA section 101(b)(1)(G) unless the petition and visa application are finally approved.
(e) If a petition for a child under INA section 101(b)(1)(G) is properly filed with a consular officer, the consular officer will review the petition for the purpose of determining whether it can be provisionally approved in accordance with applicable DHS requirements. If a properly completed application for waiver of inadmissibility is received by a consular officer at the same time that a petition for a child under INA section 101(b)(1)(G) is received, provisional approval cannot take place unless the waiver is approved, and therefore the consular officer, pursuant to 8 CFR 204.313(i)(3) and 8 CFR 212.7, will forward the petition and the waiver application to DHS for decisions as to approval of the waiver and provisional approval of the petition. If a petition for a child under INA section 101(b)(1)(G) is received by a DHS officer, the consular officer will conduct any reviews, determinations or investigations requested by DHS with regard to the petition and classification determination in accordance with applicable DHS procedures.
(f) A petition shall be provisionally approved by the consular officer if, in accordance with applicable DHS requirements, it appears that the child will be classifiable under INA section 101(b)(1)(G) and that the proposed adoption or grant of legal custody will be in compliance with the Convention. If the consular officer knows or has reason to believe the petition is not provisionally approvable, the consular officer shall forward it to DHS pursuant to 8 CFR 204.313(i)(3).
(g) After a petition has been provisionally approved, a completed visa application form, any supporting documents required pursuant to § 42.63 and § 42.65, and any required fees must be submitted to the consular officer in accordance with § 42.61 for a provisional review of visa eligibility. The requirements in §§ 42.62, 42.64, 42.66 and 42.67 shall also be satisfied to the extent practicable.
(h) A consular officer shall provisionally determine visa eligibility based on a review of the visa application, submitted supporting documents, and the provisionally approved petition. In so doing, the consular officer shall follow all procedures required to adjudicate the visa to the extent possible in light of the degree of compliance with §§ 42.62 through 42.67. If it appears, based on the available information, that the child would not be ineligible under INA section 212 or other applicable law to receive a visa, the consular officer shall so annotate the visa application. If evidence of an ineligibility is discovered during the review of the visa application, and the ineligibility was not waived in conjunction with provisional approval of the petition, the prospective adoptive parents shall be informed of the ineligibility and given an opportunity to establish that it will be overcome. If the visa application cannot be annotated as described above, the consular officer shall deny the visa in accordance with § 42.81, regardless of whether the application has yet been executed in accordance with § 42.67(a); provided however that, in cases in which a waiver may be available under the INA and the consular officer determines that the visa application appears otherwise approvable, the consular officer shall inform the prospective adoptive parents of the procedure for applying to DHS for a waiver. If in addition the consular officer comes to know or have reason to believe that the petition is not clearly approvable as provided in 8 CFR 204.313(i)(3), the consular officer shall forward the petition to DHS pursuant to that section.
(i) If the petition has been provisionally approved and the visa application has been annotated in accordance with subparagraph (h), the consular officer shall notify the country of origin that the steps required by Article 5 of the Convention have been taken.
(j) After the consular officer has received appropriate notification from the country of origin that the adoption or grant of legal custody has occurred and any remaining requirements established by DHS or §§ 42.61 through 42.67 have been fulfilled, the consular officer, if satisfied that the requirements of the IAA and the Convention have been met with respect to the adoption or grant of legal custody, shall affix to the adoption decree or grant of legal custody a certificate so indicating. This certificate shall constitute the certification required by IAA section 301(a) and INA section 204(d)(2). For purposes of determining whether to issue a certificate, the fact that a consular officer notified the country of origin pursuant to paragraph (i) of this section that the steps required by Article 5 of the Convention had been taken and the fact that the country of origin has provided appropriate notification that the adoption or grant of legal custody has occurred shall together constitute prima facie evidence of compliance with the Convention and the IAA.
(k) If the consular officer is unable to issue the certificate described in paragraph (j) of this section, the consular officer shall notify the country of origin of the consular officer’s decision.
(l) After the consular officer determines whether to issue the certificate described in paragraph (j) of this section, the consular officer shall finally adjudicate the petition and visa application in accordance with standard procedures.
(m) If the consular officer is unable to give final approval to the visa application or the petition, then the consular officer shall forward the petition to DHS, pursuant to § 42.43 or 8 CFR 204.313(i)(3), as applicable, for appropriate action in accordance with applicable DHS procedures, and/or refuse the visa application in accordance with § 42.81. The consular officer shall notify the country of origin that the visa has been refused.
(n) Notwithstanding paragraphs (d) through (m) of this section, an alien described in paragraph (n)(1) of this section may qualify for visa status under INA section 101(b)(1)(G)(iii) without meeting the requirements set forth in paragraphs (d) through (m) of this section.
(1) Per Section 4(b) of the Intercountry Adoption Simplification Act, Public Law 111-287 (IASA), an alien otherwise described in INA section 101(b)(1)(G)(iii) who attained the age of 18 on or after April 1, 2008 shall be deemed to meet the age requirement imposed by INA section 101(b)(1)(G)(iii)(III), provided that a petition is filed for such child in accordance with DHS requirements not later than November 30, 2012.
(2) For any alien described in paragraph (n)(1) of this section, the “competent authority” referred to in INA section 101(b)(1)(G)(i)(V)(aa) is a court or governmental agency of a foreign country of origin having jurisdiction and authority to make decisions in matters of child welfare, including adoption. If the competent authority over matters of child welfare no longer has jurisdiction or authority over the alien due to his or her age, then the passport issuing authority of the country of origin may be considered the competent authority for the purposes of INA section 101(b)(1)(G)(i)(V)(aa).
Subpart D – Immigrants Subject to Numerical Limitations
§ 42.31 Family-sponsored immigrants.
(a) Entitlement to status. An alien shall be classifiable as a family-sponsored immigrant under INA 203(a) (1), (2), (3) or (4) if the consular officer has received from DHS a Petition to Classify Status of Alien Relative for Issuance of Immigrant Visa approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien has the relationship to the petitioner indicated in the petition. In the case of a petition according an alien status under INA 203(a) (1) or (3) or status as an unmarried son or daughter under INA 203(a)(2), the petitioner must be a “parent” as defined in INA 101(b)(2) and 22 CFR 40.1. In the case of a petition to accord an alien status under INA 203(a)(4) filed on or after January 1, 1977, the petitioner must be at least twenty-one years of age.
(b) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the child of a family-sponsored first, second, third or fourth preference immigrant or the spouse of a family-sponsored third or fourth preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
§ 42.32 Employment-based preference immigrants.
Aliens subject to the worldwide level specified in section 201(d) for employment-based immigrants in a fiscal year shall be allotted visas as indicated below.
(a) First preference – Priority workers – (1) Entitlement to status. An alien shall be classifiable as an employment-based first preference immigrant under INA 203(b)(1) if the consular office has received from DHS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such Preference status, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 203(b)(1).
(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the child or spouse of an employment-based first preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
(b) Second preference – Professionals with advanced degrees or persons of exceptional ability – (1) Entitlement to status. An alien shall be classifiable as an employment-based second preference immigrant under INA 203(b)(2) if the consular officer has received from DHS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 203(b)(2).
(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the child or spouse of an employment-based second preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
(c) Third preference – Skilled workers, professionals, other workers – (1) Entitlement to status. An alien shall be classifiable as an employment-based third preference immigrant under INA 203(b)(3) if the consular officer has received from DHS a Petition for Immigrant Worker approved in accordance with INA 204 to accord the alien such preference status, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 203(b)(3).
(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the child or spouse of an employment-based third preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
(d) Fourth preference – Special immigrants – (1) Religious workers – (i) Classification based on qualifications under INA 101(A)(27)(C). An alien shall be classifiable under INA 203(b)(4) as a special immigrant described in INA 101(a)(27)(C) if:
(A) The consular officer has received a petition approved by DHS to accord such classification, or an official notification of such approval; and
(B) The consular officer is satisfied from the evidence presented that the alien qualifies under that section; or
(C) The consular officer is satisfied the alien is the spouse or child of a religious worker so classified and is accompanying or following to join the principal alien.
(ii) Timeliness of application. An immigrant visa issued under INA 203(b)(4) to an alien described in INA 101(a)(27)(C), other than a minister of religion, who qualifies as a “religious worker” as defined in 8 CFR 204.5, shall bear the usual validity except that in no case shall it be valid later than September 30, 2003.
(2) See 22 CFR 42.34.
(3) Panama Canal employees – (i) Entitlement to status. An alien who is subject to the numerical limitations specified in section 3201(c) of the Panama Canal Act of 1979, Public Law 96-70, is classifiable under INA 203(b)(4) as a special immigrant described in INA 101(a)(27) (E), (F) or (G) if the consular officer has received a petition approved by DHS to accord such classification, or official notification of such an approval, and the consular officer is satisfied that the alien is within one of the classes described in INA 101(a)(27) (E), (F), or (G).
(ii) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the spouse or child of any alien classified under INA 203(b)(4) as a special immigrant qualified under this section, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
(4) Spouse and children of certain foreign medical graduates. The accompanying spouse and children of a graduate of a foreign medical school or of a person qualified to practice medicine in a foreign state who has adjusted status as a special immigrant under the provisions of INA 101(a)(27)(H) are classifiable under INA 203(b)(4) as special immigrants defined in INA 101(a)(27)(H) if the consular officer has received an approved petition from DHS which accords such status and the consular officer is satisfied that the alien is within the class described in INA 101(a)(27)(H).
(5) Certain international organization and NATO civilian employees – (i) Entitlement to status. An alien is classifiable under INA 203(b)(4) as a special immigrant defined in INA 101(a)(27)(I) or (L) if the consular officer has received a petition approved by the DHS to accord such classification, or official notification of such approval, and the consular officer is satisfied from the evidence presented that the alien is within one of the classes described therein.
(ii) Timeliness of application. An alien accorded status under INA 203(b)(4) because of qualification under INA 101(a)(27)(I) or (L) must appear for the final visa interview and issuance of the immigrant visa within six months of establishing entitlement to status.
(6) Certain juvenile court dependents. An alien shall be classifiable under INA 203(b)(4) as a special immigrant defined in INA 101(a)(27)(J) if the consular officer has received from DHS an approved petition to accord such status, or an official notification of such an approval, and the consular officer is satisfied the alien is within the class described in that section.
(7) Certain members of the United States Armed Forces recruited abroad – (i) Entitlement to status. An alien is classifiable under INA 203(b)(4) as a special immigrant described in INA 101(a)(27)(K) if the consular office has received a petition approved by the DHS to accord such classification, or official notification of such an approval, and the consular officer is satisfied from the evidence presented that the alien is within the class described in INA 101(a)(27)(K).
(ii) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the spouse or child of any alien classified under INA 203(b)(4) as a special immigrant qualified under this section, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
(8) Certain United States international broadcasting employees – (i) Entitlement to status. An alien is classifiable as a special immigrant under INA 203(b)(4) as described in INA 101(a)(27)(M), if the consular office has received a petition approved by the DHS to accord such classification, or official notification of such an approval, and the consular officer is satisfied from the evidence presented that the alien is within the class described in INA 101(a)(27)(M).
(ii) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the spouse or child of any alien classified under INA 203(b)(4) as a special immigrant qualified under this section, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to derivative status corresponding to the classification and priority date of the beneficiary of the petition.
(9) Certain victims of the September 11, 2001 terrorist attacks – (i) Entitlement to status. An alien shall be classifiable as a special immigrant under INA 203(b)(4) as specified in section 421 of Public Law 107-56, if:
(A) The consular officer has received a petition approved by the DHS to accord such classification, or official notification of such an approval, and the consular officer is satisfied from the evidence presented that the alien is entitled to that classification; or
(B) The alien is the spouse or child of an alien so classified in paragraph (d)(9)(i) of this section and is accompanying or following to join the principal alien.
(ii) Ineligibility exemption. An alien classified under paragraph (d)(9)(i) of this section shall not be subject to the provisions of INA 212(a)(4).
(iii) Priority date. Aliens entitled to status under paragraph (d)(9)(i) of this section shall be assigned a priority date as of the date the petition was filed under INA 204 for classification under section INA 203(b)(4) and visas shall be issued in the chronological order of application submission. However, in the event that the annual limit for immigrants under INA 203 is reached, the alien may retain the earlier priority date of the petition that was revoked.
(e) Fifth preference – Employment-creation immigrants – (1) Entitlement to status. An alien shall be classifiable as a fifth preference employment-creation immigrant if the consular officer has received from DHS an approved petition to accord such status, or official notification of such an approval, and the consular officer is satisfied that the alien is within the class described in INA 203(b)(5).
(2) Entitlement to derivative status. Pursuant to INA 203(d), and whether or not named in the petition, the spouse or child of an employment-based fifth preference immigrant, if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to a derivative status corresponding to the classification and priority date of the beneficiary of the petition.
§ 42.33 Diversity immigrants.
(a) General – (1) Eligibility to compete for consideration under section 203(c). An alien will be eligible to compete for consideration for visa issuance under INA 203(c) during a fiscal year only if he or she is a native of a low-admission foreign state, as determined by the Secretary of Homeland Security pursuant to INA 203(c)(1)(E), with respect to the fiscal year in question; and if he or she has at least a high school education or its equivalent or, within the five years preceding the date of application for a visa, has two years of work experience in an occupation requiring at least two years training or experience. The eligibility for a visa under INA 203(c) ceases at the end of the fiscal year in question. Under no circumstances may a consular officer issue a visa or other documentation to an alien after the end of the fiscal year during which an alien possesses diversity visa eligibility.
(2) Definition of high school education or its equivalent. For the purposes of this section, the phrase high school education or its equivalent means the successful completion of a twelve-year course of elementary and secondary education in the United States or successful completion in another country of a formal course of elementary and secondary education comparable to completion of twelve years’ elementary and secondary education in the United States.
(3) Determinations of work experience. For all cases registered for the 2003 Diversity Visa Program and Diversity Visa Programs occurring in subsequent fiscal years, consular officers must use the Department of Labor’s O*Net On Line to determine qualifying work experience.
(4) Limitation on number of petitions per year. No more than one petition may be submitted by or on behalf of, any alien for consideration during any single fiscal year. If two or more petitions for any single fiscal year are submitted by, or on behalf of, any alien, all such petitions will be void pursuant to INA 204(a)(1)(I)(i) and the alien by or for whom the petition has been submitted will not be eligible for consideration for diversity visa issuance during the fiscal year in question.
(5) Northern Ireland. For purposes of determining eligibility to file a petition for consideration under INA 203(c) for a fiscal year, the districts comprising that portion of the United Kingdom of Great Britain and Northern Ireland, known as “Northern Ireland”, will be treated as a separate foreign state. The districts comprising “Northern Ireland” are Antrim, Ards, Armagh, Ballymena, Ballymoney, Banbridge, Belfast, Carrickfergus, Castlereagh, Coleraine, Cookstown, Craigavon, Down, Dungannon, Fermanagh, Larne, Limavady, Lisburn, Londonderry, Magherafelt, Moyle, Newry and Mourne, Newtownabbey, North Down, Omagh, and Strabane.
(b) Petition requirement. An alien claiming to be entitled to compete for consideration under INA 203(c) must file a petition with the Department of State for such consideration. At the alien petitioner’s request, another person may file a petition on behalf of the alien. The petition will consist of an electronic entry form that the alien petitioner or a person acting on the behalf of the alien petitioner must complete on-line and submit to the Department of State via a Web site established by the Department of State for the purpose of receiving such petitions. The Department will specify the address of the Web site prior to the commencement of the 30-day or greater period described in paragraph (b)(3) of this section using the notice procedure prescribed in that paragraph.
(1) Information to be provided in the petition. The website will include the electronic entry form mentioned in paragraph (b) of this section. The entry form will require the person completing the form to provide the following information, typed in the Roman alphabet, regarding the alien petitioner:
(i) The petitioner’s full name;
(ii) The petitioner’s date and place of birth (including city and country, province or other political subdivision of the country);
(iii) The petitioner’s gender;
(iv) The country of which the petitioner claims to be a native, if other than the country of birth;
(v) The name[s], date[s] and place[s] of birth and gender of the petitioner’s spouse and child[ren], if any, (including legally adopted and step-children), regardless of whether or not they are living with the petitioner or intend to accompany or follow to join the petitioner should the petitioner immigrate to the United States pursuant to INA 203(c), but excluding a spouse or a child[ren] who is already a U.S. citizen or U.S. lawful permanent resident;
(vi) A current mailing address for the petitioner;
(vii) The location of the consular office nearest to the petitioner’s current residence or, if in the United States, nearest to the petitioner’s last foreign residence prior to entry into the United States.
(2) Requirements for photographs. The petition will also require inclusion of a photograph of the petitioner and of his or her spouse and all unmarried children under the age of 21 years. The photographs must meet the following specifications:
(i) A digital image of the applicant from either a digital camera source or a scanned photograph via scanner. If scanned, the original photographic print must have been 2″ by 2″ (50mm × 50mm). Scanner hardware and digital image resolution requirements will be further specified in the public notice described in paragraph (b)(3) of this section.
(ii) The image must be in the Joint Photographic Experts Group (JPEG) File Interchange Format (JFIF) format.
(iii) The image must be in color.
(iv) The image must have been taken no more than six months prior to the date of the petition submission.
(v) The person being photographed must be directly facing the camera with the head neither tilted up, down, or to the side. The head must cover about 50% of the area of the photograph.
(vi) The photograph must be taken with the person in front of a neutral, light-colored background. Photos taken with very dark or patterned, busy backgrounds will not be accepted.
(vii) The person’s face must be in focus.
(viii) The person in the photograph must not wear eyeglasses, sunglasses, or other paraphernalia that obstruct the view of the face.
(ix) A photograph with the person wearing a head covering or a hat is only acceptable if the covering or hat is worn specifically due to that person’s religious beliefs, and even then, the hat or covering may not obscure any portion of the face. A photograph of a person wearing tribal, military, airline or other headgear not specifically religious in nature will not be accepted.
(3) Submission of petition. A petition for consideration for visa issuance under INA 203(c) must be submitted to the Department of State by electronic entry to an Internet website designated by the Department for that purpose. No fee will be collected at the time of submission of a petition, but a processing fee may be collected at a later date, as provided in paragraph (i) of this section. The Department will establish a period of not less than thirty days during each fiscal year within which aliens may submit petitions for approval of eligibility to apply for visa issuance during the following fiscal year. Each fiscal year the Department will give timely notice of both the website address and the exact dates of the petition submission period, as well as other pertinent information, through publication in the
(c) Processing of petitions. Entries received during the petition submission period established for the fiscal year in question and meeting all of the requirements of paragraph (b) of this section will be assigned a number in a separate numerical sequence established for each regional area specified in INA 203(c)(1)(F). Upon completion of the numbering of all petitions, all numbers assigned for each region will be separately rank-ordered at random by a computer using standard computer software for that purpose. The Department will then select in the rank orders determined by the computer program a quantity of petitions for each region estimated to be sufficient to ensure, to the extent possible, usage of all immigrant visas authorized under INA 203(c) for the fiscal year in question. The Department will consider petitions selected in this manner to have been approved for the purposes of this section.
(d) Validity of approved petitions. A petition approved pursuant to paragraph (c) of this section will be valid for a period not to exceed Midnight of the last day of the fiscal year for which the petition was approved. At that time, the Department of State will consider approval of the petition to cease to be valid pursuant to INA 204(a)(1)(I)(ii)(II), which prohibits issuance of visas based upon petitions submitted and approved for a fiscal year after the last day of that fiscal year.
(e) Order of consideration. Consideration for visa issuance to aliens whose petitions have been approved pursuant to paragraph (c) of this section will be in the regional rank orders established pursuant that paragraph.
(f) Allocation of visa numbers. To the extent possible, diversity immigrant visa numbers will be allocated in accordance with INA 203(c)(1)(E) and will be allotted only during the fiscal year for which a petition to accord diversity immigrant status was submitted and approved. Under no circumstances will immigrant visa numbers be allotted after midnight of the last day of the fiscal year for which the petition was submitted and approved.
(g) Further processing. The Department will inform applicants whose petitions have been approved pursuant to paragraph (c) of this section of the steps necessary to meet the requirements of INA 222(b) in order to apply formally for an immigrant visa.
(h) Maintenance of certain information. (1) The Department will compile and maintain the following information concerning petitioners to whom immigrant visas are issued under INA 203(c):
(i) Age;
(ii) Country of birth;
(iii) Marital status;
(iv) Sex;
(v) Level of education; and
(vi) Occupation and level of occupational qualification.
(2) The Department will not maintain the names of visa recipients in connection with this information and the information will be compiled and maintained in such form that the identity of visa recipients cannot be determined therefrom.
(i) Diversity Visa Lottery fee. Consular officers shall collect, or ensure the collection of, the Diversity Visa Lottery fee from those persons who apply for a diversity immigrant visa, described in INA 203(c), after being selected by the diversity visa lottery program. The Diversity Visa Lottery fee, as prescribed by the Secretary of State, is set forth in the Schedule of Fees, 22 CFR 22.1.
§ 42.34 Special immigrant visas – certain U.S. Government employees.
(a) General. (1) An alien is classifiable under INA 203(b)(4) as a special immigrant described in INA 101(a)(27)(D) provided:
(i) The alien has performed faithful service to the United States Government abroad, or of the American Institute in Taiwan, for a total of fifteen years, or more;
(ii) The principal officer of a Foreign Service establishment (or, in the case of the American Institute in Taiwan, the Director), recommends granting special immigrant status to such alien in exceptional circumstances;
(iii) The Secretary of State, or designee, approves such recommendation and finds that it is in the national interest to grant such status.
(b) Petition requirement. An alien who seeks classification as a special immigrant under INA 203(b)(4) based on service as an employee to the U.S. government abroad or American Institute in Taiwan must file a Form DS-1884, Petition to Classify Special Immigrant under INA 203(b)(4) as an Employee or Former Employee of the U.S. Government Abroad, with the Department of State. An alien may file such a petition only after, but within one year of, notification from the Department that the Secretary of State or designee has approved a recommendation from the principal officer that special immigrant status be accorded the alien in exceptional circumstances, and has found it in the national interest to do so.
(1) Petition fees. The Secretary of State shall establish a fee for the filing of a petition to accord status under INA 203(b)(4) which shall be collected following notification that the Secretary of State, or designee, has approved the recommendation that the alien be granted status as a special immigrant under INA 101(a)(27)(D).
(2) Establishing priority date. The priority date of an alien seeking status under INA 203(b)(4) as a special immigrant described in 101(a)(27)(D) shall be the date on which the petition to accord such classification, the DS-1884, is filed. The filing date of the petition is the date on which a properly completed form and the required fee are accepted by a Foreign Service post. Pursuant to INA 203(d), and whether or not named in the petition, the spouse or child of an alien classified under INA 203(b)(4), if not otherwise entitled to an immigrant status and the immediate issuance of a visa, is entitled to the classification and priority date of the beneficiary of the petition.
(3) Delegation of authority to approve petitions. The authority to approve petitions to accord status under INA 203(b)(4) to an alien described in INA 101(a)(27)(D) is hereby delegated to the chief consular officer at the post of recommendation or, in the absence of the consular officer, to any alternate approving officer designated by the principal officer. Such authority may not be exercised until the Foreign Service post has received formal notification of the Secretary of State or designee’s approval of special immigrant status for the petitioning alien.
(4) Petition validity. Except as noted in this paragraph, the validity of a petition approved for classification under INA 203(b)(4) shall be six months beyond the date of the Secretary of State’s approval thereof or the availability of a visa number, whichever is later.
(5) Extension of special immigrant status and petition validity. If the principal officer of a post concludes that circumstances in a particular case are such that an extension of validity of the Secretary of State or designee’s approval of the principal officer’s recommendation or of the petition would be in the national interest, the principal officer shall recommend to the Secretary of State or designee that such validity be extended for not more than one additional year.
(c) Definitions – (1) Full-time service. An alien must have been employed for a total of at least 15 full-time years, or the equivalent thereof, in the service of the U.S. government abroad. The number of hours per week that qualify an employee as full-time is dependent on local law and prevailing practice in the country where the alien is or was employed, as reflected in the employment documentation submitted with the application for special immigrant status. An alien may qualify as a special immigrant under INA 101(a)(27)(D) on the basis of employment abroad with one or more than one agency of the U.S. government provided the total amount of full-time service with the U.S. government is 15 years or more, or the equivalent thereof.
(2) Faithful service. An alien must have performed faithfully in the position held. The principal officer has the primary responsibility for determining whether the alien’s service meets this requirement. A record of disciplinary actions that have been taken against the alien does not automatically disqualify the alien. The principal officer must assess the disciplinary action in light of the extent and gravity of the misconduct and when it occurred and determine whether the record as a whole, notwithstanding disciplinary actions, is one of faithful service.
(3) Continuity. The alien’s period of service need not have been continuous.
(4) Abroad. The service must have occurred anywhere outside the United States, as the term “United States” is defined in INA 101(a)(38).
(5) Employment at the American Institute in Taiwan. INA 101(a)(27)(D) permits both present and former employees of the American Institute in Taiwan to apply for special immigrant status. An alien’s service before and after the founding of the American Institute in Taiwan is counted toward the minimum 15 years of service requirement.
(6) Honorably retired. Separations within the meaning of “honorably retired” include, for example, those resulting from mandatory or voluntary retirement, reduction-in-force, or resignation for personal reasons. Separations not within the meaning of “honorably retired” would include a termination for cause or an involuntary termination or resignation in lieu of a termination for cause.
(7) Definition of exceptional circumstances. The principal officer must determine that an alien demonstrates at least one form of “exceptional circumstances” to support an application for special immigrant status.
(i) Prima facie indicators of exceptional circumstances. In the following situations an alien’s service with the U.S. government generally will be deemed to have met exceptional circumstances.
(A) Diplomatic relations between the alien’s country of nationality and the United States have been severed;
(B) Diplomatic relations between the country in which the alien was employed and the United States have been severed;
(C) The country in which the alien was employed and the United States have strained relations and the employee may be subjected to retribution by the local, State, Federal, or other official government body merely because of association with the U.S. government, or the alien may be pressured to divulge information contrary to U.S. national interests; or
(D) The alien was hired as an employee at the Consulate General at Hong Kong on or before July 1, 1999.
(ii) Strong indicators of exceptional circumstances. (A) It is believed that continued service to the U.S. government might endanger the life of the alien;
(B) The alien has, fulfilled responsibilities or given service in a manner that approaches the heroic;
(C) The alien has been awarded a global or a regional “Foreign Service National of the Year” Award;
(D) The alien has disclosed waste, fraud or abuse, a substantial and specific danger to public health or safety, or a violation of law, rule, or regulation within the Department or other U.S. government agency, if such disclosure results in significant action by the Department or other U.S. government agency against an offending party, such as termination or severance of a contractual relationship, or criminal charges against any person or entity;
(E) The employee has served the U.S. government for a period of twenty years or more.
(8) Immediate intent to immigrate. (i) The recommendation of the principal officer must certify that the employee being recommended is prepared to pursue an immigrant visa application within one year of the Department’s notification to the post of approval of special immigrant status and, if the employee is not honorably retired, that the employee intends permanent separation from U.S. government employment abroad no later than the date of departure for the United States following issuance of an immigrant visa.
(ii) Employees of Hong Kong Consulate General hired on or before July 1, 1999, are not required to establish immediate intent to immigrate. Employees of the Hong Kong Consulate General who received or were approved for special immigrant status before July 1, 1999, also may continue employment with the U.S. government.
Subpart E – Petitions
§ 42.41 Effect of approved petition.
Consular officers are authorized to grant to an alien the immediate relative or preference status accorded in a petition approved in the alien’s behalf upon receipt of the approved petition or official notification of its approval. The status shall be granted for the period authorized by law or regulation. The approval of a petition does not relieve the alien of the burden of establishing to the satisfaction of the consular officer that the alien is eligible in all respects to receive a visa.
§ 42.42 Petitions for immediate relative or preference status.
Petition for immediate relative or preference status. The consular officer may not issue a visa to an alien as an immediate relative entitled to status under 201(b), a family-sponsored immigrant entitled to preference status under 203(a)(1)-(4), or an employment-based preference immigrant entitled to status under INA 203(b)(1)-(5), unless the officer has received a petition filed and approved in accordance with INA 204 or official notification of such filing and approval.
§ 42.43 Suspension or termination of action in petition cases.
(a) Suspension of action. The consular officer shall suspend action in a petition case and return the petition, with a report of the facts, for reconsideration by DHS if the petitioner requests suspension of action, or if the officer knows or has reason to believe that approval of the petition was obtained by fraud, misrepresentation, or other unlawful means, or that the beneficiary is not entitled, for some other reason, to the status approved.
(b) Termination of action. (1) The consular officer shall terminate action in a petition case upon receipt from DHS of notice of revocation of the petition in accordance with DHS regulations.
(2) The consular officer shall terminate action in a petition case subject to the provisions of INA 203(g) in accordance with the provisions of § 42.83.
Subpart F – Numerical Controls and Priority Dates
§ 42.51 Department control of numerical limitations.
(a) Centralized control. Centralized control of the numerical limitations on immigration specified in INA 201, 202, and 203 is established in the Department. The Department shall limit the number of immigrant visas that may be issued and the number of adjustments of status that may be granted to aliens subject to these numerical limitations to a number:
(1) Not to exceed 27 percent of the world-wide total made available under INA 203 (a), (b) and (c) in any of the first three quarters of any fiscal year; and
(2) Not to exceed, in any month of a fiscal year, 10% of the world-wide total made available under INA 203 (a), (b) and (c) plus any balance remaining from authorizations for preceding months in the same fiscal year.
(b) Allocation of numbers. Within the foregoing limitations, the Department shall allocate immigrant visa numbers for use in connection with the issuance of immigrant visas and adjustments based on the chronological order of the priority dates of visa applicants classified under INA 203 (a) and (b) reported by consular officers pursuant to § 42.55(b) and of applicants for adjustment of status as reported by officers of the DHS, taking into account the requirements of INA 202(e) in such allocations. In the case of applicants under INA 203(c), visa numbers shall be allocated within the limitation for each specified geographical region in the random order determined in accordance with sec. 42.33(c) of this part.
(c) Recaptured visa numbers. An immigrant visa number shall be returned to the Department for reallocation within the fiscal year in which the visa was issued when:
(1) An immigrant having an immigrant visa is excluded from the United States and deported;
(2) An immigrant does not apply for admission to the United States before the expiration of the validity of the visa;
(3) An alien having a preference immigrant visa is found not to be a preference immigrant; or
(4) An immigrant visa is revoked pursuant to § 42.82.
§ 42.52 Post records of visa applications.
(a) Waiting list. Records of individual visa applicants entitled to an immigrant classification and their priority dates shall be maintained at posts at which immigrant visas are issued. These records shall indicate the chronological and preferential order in which consideration may be given to immigrant visa applications within the several immigrant classifications subject to the numerical limitations specified in INA 201, 202, and 203. Similar records shall be kept for the classes specified in INA 201(b)(2) and 101(a)(27) (A) and (B) which are not subject to numerical limitations. The records which pertain to applicants subject to numerical limitations constitute “waiting lists” within the meaning of INA 203(e)(3) as redesignated by the Immigration Act of 1990.
(b) Entitlement to immigrant classification. An alien shall be entitled to immigrant classification if the alien:
(1) Is the beneficiary of an approved petition according immediate relative or preference status;
(2) Has satisfied the consular officer that the alien is entitled to special immigrant status under INA(101)(a)(27) (A) or (B);
(3) Is entitled to status as a Vietnam Amerasian under section 584(b)(1) of section 101(e) of Public Law 100-202 as amended by Public Law 101-167 and re-amended by Public Law 101-513; or
(4) Beginning in FY-95, is entitled to status as a diversity immigrant under INA 203(c).
(c) Record made when entitlement to immigrant classification is established. (1) A record that an alien is entitled to an immigrant visa classification shall be made whenever the consular officer is satisfied – or receives evidence – that the alien is within the criteria set forth in paragraph (b) of this section.
(2) A separate record shall be made of family members entitled to derivative immigrant status whenever the consular officer determines that a spouse or child is chargeable to a different foreign state or other numerical limitation than the principal alien. The provisions of INA 202(b) are to be applied as appropriate when either the spouse or parent is reached on the waiting list.
(3) A separate record shall be made of a spouse or child entitled to derivative immigrant status whenever the consular officer determines that the principal alien intends to precede the family.
§ 42.53 Priority date of individual applicants.
(a) Preference applicant. The priority date of a preference visa applicant under INA 203 (a) or (b) shall be the fiing date of the approved petition that accorded preference status.
(b) Former Western Hemisphere applicant with priority date prior to January 1, 1977. Notwithstanding the provisions of paragraph (a) of this section, an alien who, prior to January 1, 1977, was subject to the numerical limitation specified in section 21(e) of the Act of October 3, 1965, and who was registered as a Western Hemisphere immigrant with a priority date prior to January 1, 1977, shall retain that priority date as a preference immigrant upon approval of a petition according status under INA 203 (a) or (b).
(c) Derivative priority date for spouse or child of principal alien. A spouse or child of a principal alien acquired prior to the principal alien’s admission shall be entitled to the priority date of the principal alien, whether or not named in the immigrant visa application of the principal alien. A child born of a marriage which existed at the time of a principal alien’s admission to the United States is considered to have been acquired prior to the principal alien’s admission.
§ 42.54 Order of consideration.
(a) General. Consular officers shall request applicants to take the steps necessary to meet the requirements of INA 222(b) in order to apply formally for a visa as follows:
(1) In the chronological order of the priority dates of all applicants within each of the immigrant classifications specified in INA 203 (a) and (b); and
(2) In the random order established by the Secretary of State for each region for the fiscal year for applicants entitled to status under INA 203(c).
(b) [Reserved]
§ 42.55 Reports on numbers and priority dates of applications on record.
(a) Consular officers shall report periodically, as the Department may direct, the number and priority dates of all applicants subject to the numerical limitations prescribed in INA 201, 202, and 203 whose immigrant visa applications have been recorded in accordance with § 42.52(c).
(b) Documentarily qualified applicants. Consular officers shall also report periodically, as the Department may direct, the number and priority dates of all applicants described in paragraph (a) of this section who have informed the consular office that they have obtained the documents required under INA 222(b), for whom the necessary clearance procedures have been completed.
Subpart G – Application for Immigrant Visas
§ 42.61 Place of application.
(a) Alien to apply in consular district of residence. Unless otherwise directed by the Department, an alien applying for an immigrant visa shall make application at the consular office having jurisdiction over the alien’s place of residence; except that, unless otherwise directed by the Department, an alien physically present in an area but having no residence therein may make application at the consular office having jurisdiction over that area if the alien can establish that he or she will be able to remain in the area for the period required to process the application. Finally, a consular office may, as a matter of discretion, or shall, at the direction of the Department, accept an immigrant visa application from an alien who is neither a resident of, nor physically present in, the area designated for that office for such purpose. For the purposes of this section, an alien physically present in the United States shall be considered to be a resident of the area of his or her last residence prior to entry into the United States.
(b) Transfer of immigrant visa cases. (1) All documents, papers, and other evidence relating to an applicant whose case is pending or has been refused at one post may be transferred to another post at the applicant’s request and risk when there is reasonable justification for the transfer and the transferring post has no reason to believe that the alien will be unable to appear at the receiving post.
(2) Any approved petition granting immediate relative or preference status should be included among the documents when a case is transferred from one post to another.
(3) In no case may a visa number be transferred from one post to another. A visa number which cannot be used as a result of the transfer must be returned to the Department immediately.
§ 42.62 Personal appearance and interview of applicant.
(a) Personal appearance of applicant before consular officer. Every applicant applying for an immigrant visa other than an applicant described in paragraph (c) of this section, including an applicant whose application is executed by another person pursuant to § 42.63(a)(2), shall be required to appear personally before a consular officer for the execution of the application or, if in Taiwan, before a designated officer of the American Institute in Taiwan, except that the personal appearance of any child under the age of 14 may be waived at the officer’s discretion.
(b) Interview by consular officer. (1) Every applicant executing an immigrant visa application other than an applicant described in paragraph (c) of this section must be interviewed by a consular officer who shall determine on the basis of the applicant’s representations and the visa application and other relevant documentation –
(i) The proper immigrant classification, if any, of the visa applicant, and
(ii) The applicant’s eligibility to receive a visa.
(2) The officer has the authority to require that the alien answer any question deemed material to these determinations.
(c) Certain repeat applications due to COVID-19. The personal appearance and interview of any applicant for an immigrant visa may be waived in the discretion of the consular officer until December 13, 2023, provided that –
(1) The applicant was issued a U.S. immigrant visa on or after August 4, 2019, and is:
(i) Seeking an immigrant visa in the same classification and pursuant to the same approved petition as the previously issued immigrant visa; or
(ii) Seeking an immigrant visa pursuant to the same approved petition as the previously issued immigrant visa but in a classification that automatically converted from the classification of the previously issued immigrant visa due to the death or naturalization of the petitioner;
(2) The applicant qualifies for an immigrant visa in the same classification as the previously issued immigrant visa, or in another classification as a result of automatic conversion from the classification of the previously issued immigrant visa due to the death or naturalization of the petitioner, and pursuant to the same approved petition as the previously issued immigrant visa; and
(3) The applicant has not undergone a change in circumstances that could affect the applicant’s eligibility for the visa.
§ 42.63 Definitions.
(a) Application forms – (1) Application on Form DS-230 or Form DS-260 required. Every alien applying for an immigrant visa must make application, as directed by the consular officer, on Form DS-230, Application for Immigrant Visa and Alien Registration, or on Form DS-260, Electronic Application for Immigrant Visa and Alien Registration. This requirement may not be waived. Form DS-230 consists of parts I and II which, together, are meant in any reference to this Form.
(2) Application of alien under 14 or physically incapable. The application on Form DS-230 or on Form DS-260 for an alien under 14 years of age or one physically incapable of completing an application may be executed by the alien’s parent or guardian, or, if the alien has no parent or guardian, by any person having legal custody of, or a legitimate interest in, the alien.
(b) Preparation of forms. The consular officer shall ensure that Form DS-230 or Form DS-260 and all other forms an alien is required to submit are fully and properly completed in accordance with the applicable regulations and instructions.
(c) Additional information as part of application. The officer may require the submission of additional information or question the alien on any relevant matter whenever the officer believes that the information provided in Form DS-230 or Form DS-260 is inadequate to determine the alien’s eligibility to receive an immigrant visa. Additional statements made by the alien become a part of the visa application. All documents required under the authority of § 42.62 are considered papers submitted with the alien’s application within the meaning of INA 221(g)(1).
§ 42.64 Passport requirements.
(a) Passport defined. Passport, as defined in INA 101(a)(30), is not limited to a national passport or to a single document. A passport may consist of two or more documents which, when considered together, fulfill the requirements of a passport, provided that documentary evidence of permission to enter a foreign country has been issued by a competent authority and clearly meets the requirements of INA 101(a)(30).
(b) Passport validity requirements. Except as provided in § 42.2, every applicant for an immigrant visa shall present a passport, as defined in INA 101(a)(30), that is valid for at least 60 days beyond the period of validity of the visa. The 60-day additional validity requirement does not apply to an applicant who would be excepted as provided in § 42.2 were it not for the fact that the applicant is applying in the country of which the applicant is a national and the possession of a passport is required for departure. Such an applicant may be issued a visa valid for 6 months or for such shorter period as will assure its expiration in unison with the passport.
(c) A single passport including more than one person. The passport requirement of this section may be met by the presentation of a passport including more than one person, if such inclusion is authorized under the laws or regulations of the issuing authority and if a photograph of each person 16 years of age or over is attached to the passport by the issuing authority.
§ 42.65 Supporting documents.
(a) Authority to require documents. The consular officer is authorized to require documents considered necessary to establish the alien’s eligibility to receive an immigrant visa. All such documents submitted and other evidence presented by the alien, including briefs submitted by attorneys or other representatives, shall be considered by the officer.
(b) Basic documents required. An alien applying for an immigrant visa shall be required to furnish, if obtainable: A copy of a police certificate or certificates; a certified copy of any existing prison record, military record, and record of birth; and a certified copy of all other records or documents which the consular officer considers necessary.
(c) Definitions. (1) Police certificate means a certification by the police or other appropriate authorities reporting information entered in their records relating to the alien. In the case of the country of an alien’s nationality and the country of an alien’s current residence (as of the time of visa application) the term “appropriate police authorities” means those of a country, area or locality in which the alien has resided for at least six months. In the case of all other countries, areas, or localities, the term “appropriate police authorities” means the authorities of any country, area, or locality in which the alien has resided for at least one year. A consular officer may require a police certificate regardless of length of residence in any country if he or she has reason to believe that a police record exists in the country, area, or locality concerned.
(2) Prison record means an official document containing a report of the applicant’s record of confinement and conduct in a penal or correctional institution.
(3) Military record means an official document containing a complete record of the applicant’s service and conduct while in military service, including any convictions of crime before military tribunals as distinguished from other criminal courts. A certificate of discharge from the military forces or an enrollment book belonging to the applicant shall not be acceptable in lieu of the official military record, unless it shows the alien’s complete record while in military service. The applicant may, however, be required to present for inspection such a discharge certificate or enrollment book if deemed necessary by the consular officer to establish the applicant’s eligibility to receive a visa.
(4) A certified copy of an alien’s record of birth means a certificate issued by the official custodian of birth records in the country of birth showing the date and place of birth and the parentage of the alien, based upon the original registration of birth.
(5) Other records or documents include any records or documents establishing the applicant’s relationship to a spouse or children, if any, and any records or documents pertinent to a determination of the applicant’s identity, classification, or any other matter relating to the applicant’s visa eligibility.
(d) Unobtainable documents. (1) If the consular officer is satisfied, or the catalogue of available documents prepared by the Department indicates, that any document or record required under this section is unobtainable, the officer may permit the immigrant to submit other satisfactory evidence in lieu of such document or record. A document or other record shall be considered unobtainable if it cannot be procured without causing to the applicant or a family member actual hardship as opposed to normal delay and inconvenience.
(2) If the consular officer determines that a supporting document, as described in paragraph (b) of this section, is in fact unobtainable, although the catalogue of available documents shows it is available, the officer shall affix to the visa application a signed statement describing in detail the reasons for considering the record or document unobtainable and for accepting the particular secondary evidence attached to the visa.
(e) Authenticity of records and documents. If the consular officer has reason to believe that a required record or document submitted by an applicant is not authentic or has been altered or tampered with in any material manner, the officer shall take such action as may be necessary to determine its authenticity or to ascertain the facts to which the record or document purports to relate.
(f) Photographs. Every alien shall furnish color photographs of the number and specifications prescribed by the Department, except that, in countries where facilities for producing color photographs are unavailable as determined by the consular officer, black and white photographs may be substituted.
§ 42.66 Medical examination.
(a) Medical examination required of all applicants. Before the issuance of an immigrant visa, the consular officer shall require every alien, regardless of age, to undergo a medical examination in order to determine eligibility to receive a visa.
(b) Examination by physician from approved panel. The required examination shall be conducted in accordance with requirements and procedures established by the United States Public Health Service and by a physician selected by the alien from a panel of physicians approved by the consular officer.
(c) Facilities required for panel physician. A consular officer shall not include the name of a physician on the panel of physicians referred to in paragraph (b) of this section unless the physician has facilities to perform required serological and X-ray tests or is in a position to refer applicants to a qualified laboratory for such tests.
§ 42.67 Execution of application, registration, and fingerprinting.
(a) Execution of visa application – (1) Application fee. A fee is prescribed for each application for an immigrant visa. It shall be collected prior to the execution of the application and a receipt shall be issued.
(2) Oath and signature on Form DS-230. The applicant shall be required to read the Form DS-230, Application for Immigrant Visa and Alien Registration, when it is completed, or it shall be read to the applicant in the applicant’s language, or the applicant shall otherwise be informed of its full contents. Applicants shall be asked whether they are willing to subscribe thereto. If the applicant is not willing to subscribe to the application unless changes are made in the information stated therein, the required changes shall be made. The application shall then be sworn to or affirmed and signed by or on behalf of the applicant before a consular officer, or a designated officer of the American Institute of Taiwan, who shall then sign the application over the officer’s title.
(3) Oath and signature on Form DS-260. The applicant shall be required to read the Form DS-260, Electronic Application for Immigrant Visa and Alien Registration, when it has been completed, or it shall be read to the applicant in the applicant’s language, or the applicant shall otherwise be informed of its full contents, before the applicant electronically signs and submits the application to the Department. At the time of the applicant’s interview the applicant shall be asked whether they are willing to subscribe thereto to the information provided on Form DS-260. If the alien is not willing to subscribe to the application unless changes are made in the information stated therein, the required changes shall be made. The application shall then be sworn to or affirmed and signed, biometrically, by or on behalf of the applicant before a consular officer, or a designated officer of the American Institute of Taiwan, who shall then electronically sign the application.
(4) Form of attestation for certain repeat applications due to COVID-19. The swearing to or signature of an application before a consular officer by an immigrant visa applicant may be waived in the discretion of the consular officer until December 13, 2023, provided the applicant is willing to affirm under penalty of perjury to the information provided on Form DS-260 or Form DS-230.
(b) Registration. The alien shall be considered to be registered for the purposes of INA 221(b) and 203(g) upon the filing of Form DS-230 or Form DS-260, when duly executed, or the transmission by the Department to the alien of a notification of the availability of an immigrant visa, whichever occurs first.
(c) Fingerprinting. Every applicant for an immigrant visa must furnish fingerprints prior to the execution of Form DS-230 or Form DS-260.
§ 42.68 Informal evaluation of family members if principal applicant precedes them.
(a) Preliminary determination of visa eligibility. If a principal applicant proposes to precede the family to the United States, the consular officer may arrange for an informal examination of the other members of the principal applicant’s family in order to determine whether there exists at that time any mental, physical, or other ground of ineligibility on their part to receive a visa.
(b) When family member ineligible. In the event the consular officer finds that any member of such family would be ineligible to receive an immigrant visa, the principal applicant shall be informed and required to acknowledge receipt of this information in writing.
(c) No guarantee of future eligibility. A determination in connection with an informal examination that an alien appears to be eligible for a visa carries no assurance that the alien will be issued an immigrant visa in the future. The principal applicant shall be so informed and required to acknowledge receipt of this information in writing. The question of visa eligibility can be determined definitively only at the time the family member applies for a visa.
Subpart H – Issuance of Immigrant Visas
§ 42.71 Authority to issue visas; visa fees.
(a) Authority to issue visas. Consular officers may issue immigrant visas at designated consular offices abroad pursuant to the authority contained in INA 101(a)(16), 221(a), and 224.
(b) Immigrant visa fees – (1) Payment of fees. The Secretary of State prescribes a fee for the processing of immigrant visa applications. Except as provided in paragraphs (b)(2) and (3) of this section, an individual registered for immigrant visa processing at a post designated for this purpose by the Deputy Assistant Secretary for Visa Services must pay the fee upon being notified that a visa is expected to become available in the near future, and upon being requested to obtain the supporting documentation needed to apply formally for a visa, in accordance with instructions received with such notification. The fee must be paid before an applicant at a post so designated will receive an appointment to appear and make application before a consular officer. Applicants at a post not yet so designated will pay the fee immediately prior to formal application for a visa. A fee collected for the processing of an immigrant visa application is refundable only if the principal officer of a post or the officer in charge of a consular section determines that the application was not adjudicated as a result of action by the U.S. Government over which the alien had no control and for which the alien was not responsible, which precluded the applicant from benefitting from the processing, or as provided in paragraph (b)(2) of this section.
(2) Waiver or refund of fees for replacement immigrant visas for adoptees. The consular officer shall waive the application processing fee for a replacement immigrant visa or, upon request, refund such a fee where already paid, if the consular officer is satisfied that the alien, the alien’s parent(s), or the alien’s representative has established that:
(i) The prior immigrant visa was issued on or after March 27, 2013, to an alien who has been lawfully adopted, or who is coming to the United States to be adopted, by a United States citizen;
(ii) The alien was unable to use the original immigrant visa during the period of its validity as a direct result of extraordinary circumstances, including the denial of an exit permit; and
(iii) The inability to use the visa was attributable to factors beyond the control of the adopting parent or parents and of the alien.
(3) Exemption from fees for immigrant visa applicants previously refused solely pursuant to Proclamation 9645 or Proclamation 9983. An immigrant visa applicant shall be exempt from the application processing fee and the affidavit of support review fee, if the applicant was previously denied an immigrant visa on or between December 8, 2017, and January 19, 2020; the sole ground of ineligibility was based on Proclamation 9645 or 9983; and the applicant is applying again for an immigrant visa. This paragraph (b)(3) provides only for a one-time exemption of the applicable fees per applicant.
§ 42.72 Validity of visas.
(a) Period of validity. With the exception indicated herein, the period of validity of an immigrant visa shall not exceed six months, beginning with the date of issuance. Any visa issued to a child lawfully adopted by a U.S. citizen and spouse while such citizen is serving abroad in the U.S. Armed Forces, is employed abroad by the U.S. Government, or is temporarily abroad on business, however, shall be valid until such time, for a period not to exceed 3 years, as the adoptive citizen parent returns to the United States in the course of that parent’s military service, U.S. Government employment, or business.
(b) Extension of period of validity. If the visa was originally issued for a period of validity less than the maximum authorized by paragraph (a) of this section, the consular officer may extend the validity of the visa up to but not exceeding the maximum period permitted. If an immigrant applies for an extension at a consular office other than the issuing office, the consular officer shall, unless the officer is satisfied beyond doubt that the alien is eligible for the extension, communicate with the issuing office to determine if there is any objection to an extension. In extending the period of validity, the officer shall make an appropriate notation on the visa of the new expiration date, sign the document with title indicated, and impress the seal of the office thereon.
(c) [Reserved]
(d) Age and marital status in relation to validity of certain immigrant visas. In accordance with § 42.64(b), the validity of a visa may not extend beyond a date sixty days prior to the expiration of the passport. The period of validity of a visa issued to an immigrant as a child shall not extend beyond the day immediately proceding the date on which the alien becomes 21 years of age. The consular officer shall warn an alien, when appropriate, that the alien will be admissible as such an immigrant only if unmarried and under 21 years of age at the time of application for admission at a U.S. port of entry. The consular officer shall also warn an alien issued a visa as a first or second preference immigrant as an unmarried son or daughter of a citizen or lawful permanent resident of the United States that the alien will be admissible as such an immigrant only if unmarried at the time of application for admission at a U.S. port of entry.
§ 42.73 Procedure in issuing visas.
(a) Evidence of visa. An immigrant visa shall be evidenced by a physical visa or by an electronic visa located in the Department’s records. The appropriate symbol as prescribed in § 42.11, showing the classification of the alien, shall be entered on the visa.
(b) Visa format. A machine-readable visa shall be in the format designated by the Department, and contain, at a minimum, the following data:
(1) Full name of the immigrant;
(2) Visa symbol;
(3) Location of the visa issuing office;
(4) Passport number;
(5) The registration number (A-number) assigned to the immigrant;
(6) Sex;
(7) Date of birth;
(8) Nationality;
(9) Date of issuance;
(10) Date of expiration;
(11) Visa control number;
(12) Any annotations entered to reflect waivers or other information useful to an immigration officer at a port of entry (POE) upon the immigrant’s application for admission to the United States;
(13) A digitized photo of the immigrant; and
(14) Machine-readable data that can be processed by an immigration officer at a POE.
(c) Disposition of supporting documents. Post shall, wherever possible, return original supporting documents furnished by the alien. Duplicate copies may be retained in the consular system, as required or necessary.
§ 42.74 Issuance of new, replacement, or duplicate visas.
(a) New immigrant visa for a special immigrant under INA 101(a)(27)(A) and (B). The consular officer may issue a new immigrant visa to a qualified alien entitled to status under INA 101(a)(27)(A) or (B), provided that:
(1) The alien establishes that the original visa has been lost, mutilated, or has expired; or that the alien will be unable to use it during the period of its validity; and
(2) The alien pays anew the application processing fees prescribed in the Schedule of Fees (22 CFR 22.1); and
(3) The consular officer ascertains whether the original issuing office knows of any reason why a new visa should not be issued.
(b) Replacement immigrant visa for an immediate relative or for an alien subject to numerical limitation. A consular officer may issue a replacement visa under the original number of a qualified alien entitled to status as an immediate relative (INA 201(b)(2)), a family or employment preference immigrant (INA 203(a) or (b)), or a diversity immigrant (INA 203(c)), if –
(1) The alien is unable to use the visa during the period of its validity due to reasons beyond the alien’s control;
(2) The visa is issued during the same fiscal year in which the original visa was issued, or in the following year in the case of an immediate relative only, if the original number had been reported as recaptured;
(3) The number has not been returned to the Department as a “recaptured visa number” in the case of a preference or diversity immigrant;
(4) The alien pays anew the application processing fees prescribed in the Schedule of Fees; and
(5) The consular officer ascertains whether the original issuing office knows of any reason why a new visa should not be issued.
(c) Replacement visa for adoptees. A consular officer may issue a replacement immigrant visa to a qualified alien, if the conditions in paragraphs (a)(1) and (3) of this section are met, and if the consular officer determines –
(1) A prior immigrant visa was issued on or after March 27, 2013, to a child who has been lawfully adopted, or who is coming to the United States to be adopted, by a United States citizen;
(2) The inability to use the visa was attributable to factors beyond the control of the adoptee or the adopting parent(s); and
(3) The application processing fee has been waived pursuant to § 42.71(b)(2) or has been paid anew.
(d) Duplicate visas issued within the validity period of the original visa. If the validity of a visa previously issued has not yet terminated and the original visa has been lost or mutilated, a duplicate visa may be issued containing all of the information appearing on the original visa, including the original issuance and expiration dates. The applicant shall execute a new application and provide copies of the supporting documents submitted in support of the original application. The alien must pay anew the application processing fees prescribed in the Schedule of Fees.
Subpart I – Refusal, Revocation, and Termination of Registration
§ 42.81 Procedure in refusing immigrant visas.
(a) Grounds for refusal. When a visa application has been properly completed and executed before a consular officer in accordance with the provisions of the INA and the implementing regulations, the consular officer must issue the visa, refuse the visa under INA 212(a) or 221(g) or other applicable law or, pursuant to an outstanding order under INA 243(d), discontinue granting the visa.
(b) Refusal procedure. A consular officer may not refuse an immigrant visa until either Form DS-230, Application for Immigrant Visa and Alien Registration, or Form DS-260, Electronic Application for Immigrant Visa and Alien Registration, has been executed by the applicant. When an immigrant visa is refused, an appropriate record shall be made in duplicate on a form prescribed by the Department. The form shall be signed and dated by the consular officer. The consular officer shall inform the applicant of the provision of law or implementing regulation on which the refusal is based and of any statutory provision of law or implementing regulation under which administrative relief is available. Each document related to the refusal shall then be attached to Form DS-230 for retention in the refusal files. Alternatively, each document related to the refusal shall be electronically scanned and electronically attached to Form DS-260 for retention in the electronic refusal files. Any documents not related to the refusal shall be returned to the applicant. The original copy of a document that was scanned and attached to the DS-260 for the refusal file shall be returned to the applicant. If the ground of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates an intention to submit such evidence, all documents may, with the consent of the alien, be retained in the consular files for a period not to exceed one year. If the refusal as not been overcome within one year, any documents not relating to the refusal shall be removed from the file and returned to the alien.
(c) Review of refusal at consular office. If the grounds of ineligibility upon which the visa was refused cannot be overcome by the presentation of additional evidence, the principal consular officer at a post, or a specifically designated alternate, shall review the case without delay, record the review decision, and sign and date the prescribed form. If the grounds of ineligibility may be overcome by the presentation of additional evidence and the applicant indicates the intention to submit such evidence, a review of the refusal may be deferred. If the principal consular officer or alternate does not concur in the refusal, that officer shall either (1) refer the case to the Department for an advisory opinion, or (2) assume responsibility for final action on the case.
(d) Review of refusal by Department. The Department may request a consular officer in an individual case or in specified classes of cases to submit a report if an immigrant visa has been refused. The Department will review each report and may furnish an advisory opinion to the consular officer for assistance in considering the case further. If the officer believes that action contrary to an advisory opinion should be taken, the case shall be resubmitted to the Department with an explanation of the proposed action. Rulings of the Department concerning an interpretation of law, as distinguished from an application of the law to the facts, are binding upon consular officers.
(e) Reconsideration of refusal. If a visa is refused, and the applicant within one year from the date of refusal adduces further evidence tending to overcome the ground of ineligibility on which the refusal was based, the case shall be reconsidered. In such circumstance, an additional application fee shall not be required.
§ 42.82 Revocation of visas.
(a) Grounds for revocation by consular officers. A consular officer, the Secretary, or any Department official to whom the Secretary has delegated this authority is authorized to revoke an immigrant visa at any time, in his or her discretion.
(b) Provisional revocation. A consular officer, the Secretary, or any Department official to whom the Secretary has delegated this authority may provisionally revoke an immigrant visa while considering information related to whether a visa holder is eligible for the visa. Provisional revocation shall have the same force and effect as any other visa revocation under INA 221(i).
(c) Notice of revocation. Unless otherwise instructed by the Department, a consular officer shall, if practicable, notify the alien to whom the visa was issued that the visa was revoked or provisionally revoked. Regardless of delivery of such notice, once the revocation has been entered into the Department’s Consular Lookout and Support System (CLASS), the visa is no longer to be considered valid for travel to the United States. The date of the revocation shall be indicated in CLASS and on any notice sent to the alien to whom the visa was issued.
(d) Procedure for physically canceling visas. An immigrant visa that is revoked shall be canceled by writing or stamping the word “REVOKED” plainly across the face of the visa, if the visa is available to the consular officer. The failure or inability to physically cancel the visa does not affect the validity of the revocation.
§ 42.83 Termination of registration.
(a) Termination following failure of applicant to apply for visa. In accordance with INA 203(g), an alien’s registration for an immigrant visa shall be terminated if, within one year after transmission of a notification of the availability of an immigrant visa, the applicant fails to apply for an immigrant visa.
(b) Termination following visa refusal. An alien’s registration for an immigrant visa shall be terminated if, within one year following the refusal of the immigrant visa application under INA 221(g), the alien has failed to present to a consular officer evidence purporting to overcome the basis for refusal.
(c) Notice of termination. Upon the termination of registration under paragraph (a) of this section, the National Visa Center (NVC) shall notify the alien of the termination. The NVC shall also inform the alien of the right to have the registration reinstated if the alien, before the end of the second year after the missed appointment date if paragraph (a) applies, establishes to the satisfaction of the consular officer at the post where the alien is registered that the failure to apply for an immigrant visa was due to circumstances beyond the alien’s control. If paragraph (b) applies, the consular officer at the post where the alien is registered shall, upon the termination of registration, notify the alien of the termination and the right to have the registration reinstated if the alien, before the end of the second year after the INA 221(g) refusal, establishes to the satisfaction of the consular officer at such post that the failure to present evidence purporting to overcome the ineligibility under INA 221(g) was due to circumstances beyond the alien’s control.
(d) Reinstatement of registration. If the consular officer is satisfied that an alien, as provided for in paragraph (c) of this section, has established that failure to apply as scheduled for an immigrant visa or to present evidence purporting to overcome ineligibility under INA 221(g) was due to circumstances beyond the alien’s control, the consular officer shall reinstate the alien’s registration for an immigrant visa. Any petition approved under INA 204(b) which had been automatically revoked as a result of the termination of registration shall be considered to be automatically reinstated if the registration is reinstated.
(e) Interpretation of “circumstances beyond alien’s control”. For the purpose of this section, the term “circumstances beyond the alien’s control” includes, but is not limited to, an illness or other physical disability preventing the alien from traveling, a refusal by the authorities of the country of an alien’s residence to grant the alien permission to depart as an immigrant, and foreign military service.
§ 42.84 Discontinuance of granting immigrant visa pursuant to INA 243(d).
(a) Grounds for discontinuance of granting a visa. Consular officers in a country subject to an order by the Secretary under INA 243(d) shall discontinue granting immigrant visas for categories of immigrant visas specified in the order of the Secretary (or his or her designee), and pursuant to procedures dictated by the Department.
(b) Discontinuance procedure – (1) Applications refused or discontinued only. Starting on the day the Secretary’s (or designee’s) order to discontinue granting visas takes effect (effective date), no visas falling within the scope of the order, as described by the order, may be issued in the referenced country to an applicant who falls within the scope of the order, except as otherwise expressly provided in the order or related Department instructions. Beginning on the effective date, a consular officer must refuse the visa if the individual is not eligible for the visa under INA 212(a), INA 221(g), or other applicable law, but if the applicant is otherwise eligible must process the application by discontinuing granting, regardless of when the application was filed, if the applicant falls within the scope of the order and no exception applies. The application processing fee will not be refunded. The requirement to discontinue issuance may not be waived, and continues until the sanction is terminated as described below. In the case of diversity immigrant selectees applying under INA 203(c), if the discontinuance of granting has not been lifted by the end of the fiscal year, the applicant will not be eligible for a diversity visa for that fiscal year, regardless of the status of the diversity immigrant visa application at the time 243(d) sanctions were imposed.
(2) Geographic applicability. Visa sanctions under INA 243(d) only apply to visa issuance in the country that is sanctioned. If a consular officer has a reason to believe that a visa applicant potentially subject to INA 243(d) sanctions is applying at a post outside the sanctioned country to evade visa sanctions under INA 243(d), (e.g., the applicant provides no credible explanation for applying outside the country) the consular officer will transfer the case to the consular post in the consular district where INA 243(d) sanctions apply, review any other applicable Department instructions and proceed accordingly. When cases are transferred to a consular district where INA 243(d) sanctions apply, the adjudication will be subject to the discontinuation of issuance under the sanctions.
(c) Termination of sanction. The Department shall notify consular officers in an affected country the sanction under INA 243(d) has been lifted. After notification, normal consular operations may resume consistent with these regulations and guidance from the Department. Once the sanction under INA 243(d) is lifted, no new application processing fees are required in cases where issuance has been discontinued pursuant to an INA 243(d) order, and consular officers in the affected post must adjudicate the visa application consistent with regulations and Department guidance. Consular officers may require applicants to update the visa application forms, must conduct any necessary adjudicatory steps, and may re-interview to determine eligibility. In numerically controlled immigrant visa categories, an applicant’s immigrant visa priority date may no longer be current once sanctions under INA 243(d) are lifted, in which case the applicant must await visa availability.
PARTS 43-45 [RESERVED]
PART 46 – CONTROL OF ALIENS DEPARTING FROM THE UNITED STATES
§ 46.1 Definitions.
For the purposes of this part:
(a) The term alien means any person who is not a citizen or national of the United States.
(b) The term Commissioner means the Commissioner of Immigration and Naturalization.
(c) The term regional commissioner means an officer of the Immigration and Naturalization Service duly appointed or designated as a regional commissioner, or an officer who has been designated to act as a regional commissioner.
(d) The term district director means an officer of the Immigration and Naturalization Service duly appointed or designated as a district director, or an officer who has been designated to act as a district director.
(e) The term United States means the several States, the District of Columbia, the Canal Zone, Puerto Rico, the Virgin Islands, Guam, American Samoa, Swains Island, the Trust Territory of the Pacific Islands, and all other territory and waters, continental and insular, subject to the jurisdiction of the United States.
(f) The term continental United States means the District of Columbia and the several States, except Alaska and Hawaii.
(g) The term geographical part of the United States means (1) the continental United States, (2) Alaska, (3) Hawaii, (4) Puerto Rico, (5) the Virgin Islands, (6) Guam, (7) the Canal Zone, (8) American Samoa, (9) Swains Island, or (10) the Trust Territory of the Pacific Islands.
(h) The term depart from the United States means depart by land, water, or air (1) from the United States for any foreign place, or (2) from one geographical part of the United States for a separate geographical part of the United States: Provided, That a trip or journey upon a public ferry, passenger vessel sailing coastwise on a fixed schedule, excursion vessel, or aircraft, having both termini in the continental United States or in any one of the other geographical parts of the United States and not touching any territory or waters under the jurisdiction or control of a foreign power, shall not be deemed a departure from the United States.
(i) The term departure-control officer means any immigration officer as defined in the regulations of the Immigration and Naturalization Service who is designated to supervise the departure of aliens, or any officer or employee of the United States designated by the Governor of the Canal Zone, the High Commissioner of the Trust Territory of the Pacific Islands, or the governor of an outlying possession of the United States, to supervise the departure of aliens.
(j) The term port of departure means a port in the continental United States, Alaska, Guam, Hawaii, Puerto Rico or the Virgin Islands, designated as a port of entry by the Attorney General or by the Commissioner, or in exceptional circumstances such other place as the departure-control officer may, in his discretion, designate in an individual case, or a port in American Samoa, Swains Island, the Canal Zone, or the Trust Territory of the Pacific Islands, designated as a port of entry by the chief executive officer thereof.
(k) The term special inquiry officer shall have the meaning ascribed thereto in section 101(b)(4) of the Immigration and Nationality Act.
§ 46.2 Authority of departure-control officer to prevent alien’s departure from the United States.
(a) No alien shall depart, or attempt to depart, from the United States if his departure would be prejudicial to the interests of the United States under the provisions of § 46.3. Any departure-control officer who knows or has reason to believe that the case of an alien in the United States comes within the provisions of § 46.3 shall temporarily prevent the departure of such alien from the United States and shall serve him with a written temporary order directing him not to depart, or attempt to depart, from the United States until notified of the revocation of the order.
(b) The written order temporarily preventing an alien, other than an enemy alien, from departing from the United States shall become final 15 days after the date of service thereof upon the alien, unless prior thereto the alien requests a hearing as hereinafter provided. At such time as the alien is served with an order temporarily preventing his departure from the United States, he shall be notified in writing concerning the provisions of this paragraph, and shall be advised of his right to request a hearing if entitled thereto under § 46.4. In the case of an enemy alien, the written order preventing departure shall become final on the date of its service upon the alien.
(c) Any alien who seeks to depart from the United States may be required, in the discretion of the departure-control officer, to be examined under oath and to submit for official inspection all documents, articles, and other property in his possession which are being removed from the United States upon, or in connection with, the alien’s departure. The departure-control officer may permit such other persons, including officials of the Department of State and interpreters, to participate in such examination or inspection and may exclude from presence at such examination or inspection any person whose presence would not further the objectives of such examination or inspection. The departure-control officer shall temporarily prevent the departure of any alien who refuses to submit to such examination or inspection, and may, if necessary to cause the alien to submit to such examination or inspection, take possession of the alien’s passport or other travel document or issue a subpoena requiring the alien to submit to such examination or inspection.
§ 46.3 Aliens whose departure is deemed prejudicial to the interests of the United States.
The departure from the United States of any alien within one or more of the following categories shall be deemed prejudicial to the interest of the United States:
(a) Any alien who is in possession of, and who is believed likely to disclose to unauthorized persons, information concerning the plans, preparations, equipment, or establishments for the national defense and security of the United States.
(b) Any alien who seeks to depart from the United States to engage in, or who is likely to engage in, activities of any kind designed to obstruct, impede, retard, delay or counteract the effectiveness of the national defense of the United States or the measures adopted by the United States or the United Nations for the defense of any other country.
(c) Any alien who seeks to depart from the United States to engage in, or who is likely to engage in, activities which would obstruct, impede, retard, delay, or counteract the effectiveness of any plans made or action taken by any country cooperating with the United States in measures adopted to promote the peace, defense, or safety of the United States or such other country.
(d) Any alien who seeks to depart from the United States for the purpose of organizing, directing, or participating in any rebellion, insurrection, or violent uprising in or against the United States or a country allied with the United States, or of waging war against the United States or its allies, or of destroying, or depriving the United States of sources of supplies or materials vital to the national defense of the United States, or to the effectiveness of the measures adopted by the United States for its defense, or for the defense of any other country allied with the United States.
(e) Any alien who is subject to registration for training and service in the Armed Forces of the United States and who fails to present a Registration Certificate (SSS Form No. 2) showing that he has complied with his obligation to register under the Universal Military Training and Service Act, as amended.
(f) Any alien who is a fugitive from justice on account of an offense punishable in the United States.
(g) Any alien who is needed in the United States as a witness in, or as a party to, any criminal case under investigation or pending in a court in the United States: Provided, That any alien who is a witness in, or a party to, any criminal case pending in any criminal court proceeding may be permitted to depart from the United States with the consent of the appropriate prosecuting authority, unless such alien is otherwise prohibited from departing under the provisions of this part.
(h) Any alien who is needed in the United States in connection with any investigation or proceeding being, or soon to be, conducted by any official executive, legislative, or judicial agency in the United States or by any governmental committee, board, bureau, commission, or body in the United States, whether national, state, or local.
(i) Any alien whose technical or scientific training and knowledge might be utilized by an enemy or a potential enemy of the United States to undermine and defeat the military and defensive operations of the United States or of any nation cooperating with the United States in the interests of collective security.
(j) Any alien, where doubt exists whether such alien is departing or seeking to depart from the United States voluntarily except an alien who is departing or seeking to depart subject to an order issued in extradition, exclusion, or deportation proceedings.
(k) Any alien whose case does not fall within any of the categories described in paragraphs (a) to (j), inclusive, of this section, but which involves circumstances of a similar character rendering the alien’s departure prejudicial to the interests of the United States.
§ 46.4 Procedure in case of alien prevented from departing from the United States.
(a) Any alien, other than an enemy alien, whose departure has been temporarily prevented under the provisions of § 46.2 may, within 15 days of the service upon him of the written order temporarily preventing his departure, request a hearing before a special inquiry officer. The alien’s request for a hearing shall be made in writing and shall be addressed to the district director having administrative jurisdiction over the alien’s place of residence. If the alien’s request for a hearing is timely made, the district director shall schedule a hearing before a special inquiry officer, and notice of such hearing shall be given to the alien. The notice of hearing shall, as specifically as security considerations permit, inform the alien of the nature of the case against him, shall fix the time and place of the hearing, and shall inform the alien of his right to be represented, at no expense to the Government, by counsel of his own choosing.
(b) Every alien for whom a hearing has been scheduled under paragraph (a) of this section shall be entitled (1) to appear in person before the special inquiry officer, (2) to be represented by counsel of his own choice, (3) to have the opportunity to be heard and to present evidence, (4) to cross-examine the witnesses who appear at the hearing, except that if, in the course of the examination, it appears that further examination may divulge information of a confidential or security nature, the special inquiry officer may, in his discretion, preclude further examination of the witness with respect to such matters, (5) to examine any evidence in possession of the Government which is to be considered in the disposition of the case, provided that such evidence is not of a confidential or security nature the disclosure of which would be prejudicial to the interests of the United States, (6) to have the time and opportunity to produce evidence and witnesses on his own behalf, and (7) to reasonable continuances upon request, for good cause shown.
(c) Any special inquiry officer who is assigned to conduct the hearing provided for in this section shall have the authority to: (1) Administer oaths and affirmations, (2) present and receive evidence, (3) interrogate, examine, and cross-examine under oath or affirmation both the alien and witnesses, (4) rule upon all objections to the introduction of evidence or motions made during the course of the hearing, (5) take or cause depositions to be taken, (6) issue subpoenas, and (7) take any further action consistent with applicable provisions of law, executive orders, proclamations, and regulations.
§ 46.5 Hearing procedure before special inquiry officer.
(a) The hearing before the special inquiry officer shall be conducted in accordance with the following procedure:
(1) The special inquiry officer shall advise the alien of the rights and privileges accorded him under the provisions of § 46.4.
(2) The special inquiry officer shall enter of record (i) a copy of the order served upon the alien temporarily preventing his departure from the United States, and (ii) a copy of the notice of hearing furnished the alien.
(3) The alien shall be interrogated by the special inquiry officer as to the matters considered pertinent to the proceeding, with opportunity reserved to the alien to testify thereafter in his own behalf, if he so chooses.
(4) The special inquiry officer shall present on behalf of the Government such evidence, including the testimony of witnesses and the certificates or written statements of Government officials or other persons, as may be necessary and available. In the event such certificates or statements are received in evidence, the alien may request and, in the discretion of the special inquiry officer, be given an opportunity to interrogate such officials or persons, by deposition or otherwise, at a time and place and in a manner fixed by the special inquiry officer: Provided, That when in the judgment of the special inquiry officer any evidence relative to the disposition of the case is of a confidential or security nature the disclosure of which would be prejudicial to the interests of the United States, such evidence shall not be presented at the hearing but shall be taken into consideration in arriving at a decision in the case.
(5) The alien may present such additional evidence, including the testimony of witnesses, as is pertinent and available.
(b) A complete verbatim transcript of the hearing, except statements made off the record, shall be recorded. The alien shall be entitled, upon request, to the loan of a copy of the transcript, without cost, subject to reasonable conditions governing its use.
(c) Following the completion of the hearing, the special inquiry officer shall make and render a recommended decision in the case, which shall be governed by and based upon the evidence presented at the hearing and any evidence of a confidential or security nature which the Government may have in its possession. The decision of the special inquiry officer shall recommend (1) that the temporary order preventing the departure of the alien from the United States be made final, or (2) that the temporary order preventing the departure of the alien from the United States be revoked. This recommended decision of the special inquiry officer shall be made in writing and shall set forth the officer’s reasons for such decision. The alien concerned shall at his request be furnished a copy of the recommended decision of the special inquiry officer, and shall be allowed a reasonable time, not to exceed 10 days, in which to submit representations with respect thereto in writing.
(d) As soon as practicable after the completion of the hearing and the rendering of a decision by the special inquiry officer, the district director shall forward the entire record of the case, including the recommended decision of the special inquiry officer and any written representations submitted by the alien, to the regional commissioner having jurisdiction over his district. After reviewing the record, the regional commissioner shall render a decision in the case, which shall be based upon the evidence in the record and on any evidence or information of a confidential or security nature which he deems pertinent. Whenever any decision is based in whole or in part on confidential or security information not included in the record, the decision shall state that such information was considered. A copy of the regional commissioner’s decision shall be furnished the alien, or his attorney or representative. No administrative appeal shall lie from the regional commissioner’s decision.
(e) Notwithstanding any other provision of this part, the Administrator of the Bureau of Security and Consular Affairs referred to in section 104(b) of the Immigration and Nationality Act, or such other officers of the Department of State as he may designate, after consultation with the Commissioner, or such other officers of the Immigration and Naturalization Service as he may designate, may at any time permit the departure of an individual alien or of a group of aliens from the United States if he determines that such action would be in the national interest. If the Administrator specifically requests the Commissioner to prevent the departure of a particular alien or of a group of aliens, the Commissioner shall not permit the departure of such alien or aliens until he has consulted with the Administrator.
(f) In any case arising under §§ 46.1 to 46.7, the Administrator shall, at his request, be kept advised, in as much detail as he may indicate is necessary, of the facts and of any action taken or proposed.
§ 46.6 Departure from the Canal Zone, the Trust Territory of the Pacific Islands, or outlying possessions of the United States.
(a) In addition to the restrictions and prohibitions imposed by the provisions of this part upon the departure of aliens from the United States, any alien who seeks to depart from the Canal Zone, the Trust Territory of the Pacific Islands, or an outlying possession of the United States shall comply with such other restrictions and prohibitions as may be imposed by regulations prescribed, with the concurrence of the Administrator of the Bureau of Security and Consular Affairs and the Commissioner, by the Governor of the Canal Zone, the High Commissioner of the Trust Territory of the Pacific Islands, or by the governor of an outlying possession of the United States, respectively. No alien shall be prevented from departing from such zone, territory, or possession without first being accorded a hearing as provided in §§ 46.4 and 46.5.
(b) The Governor of the Canal Zone, the High Commissioner of the Trust Territory of the Pacific Islands, or the governor of any outlying possession of the United States shall have the authority to designate any employee or class of employees of the United States as hearing officers for the purpose of conducting the hearing referred to in paragraph (a) of this section. The hearing officer so designated shall exercise the same powers, duties, and functions as are conferred upon special inquiry officers under the provisions of this part. The chief executive officer of such zone, territory, or possession shall, in lieu of the regional commissioner, review the recommended decision of the hearing officer, and shall render a decision in any case referred to him, basing it on evidence in the record and on any evidence or information of a confidential or a security nature which he deems pertinent.
§ 46.7 Instructions from the Administrator required in certain cases.
In the absence of appropriate instructions from the Administrator of the Bureau of Security and Consular Affairs, departure-control officers shall not exercise the authority conferred by § 46.2 in the case of any alien who seeks to depart from the United States in the status of a nonimmigrant under section 101(a)(15) (A) or (G) of the Immigration and Nationality Act, or in the status of a nonimmigrant under section 11(3), 11 (4), or 11(5) of the Agreement between the United Nations and the United States of America regarding the Headquarters of the United Nations (61 Stat. 756): Provided, That in cases of extreme urgency, where the national security so requires, a departure-control officer may preliminarily exercise the authority conferred by § 46.2 pending the outcome of consultation with the Administrator, which shall be undertaken immediately. In all cases arising under this section, the decision of the Administrator shall be controlling: Provided, That any decision to prevent the departure of an alien shall be based upon a hearing and record as prescribed in this part.
PART 47 [RESERVED]
SUBCHAPTER F – NATIONALITY AND PASSPORTS
PART 50 – NATIONALITY PROCEDURES
§ 50.1 Definitions.
The following definitions shall be applicable to this part:
(a) United States means the continental United States, the State of Hawaii, the Commonwealth of Puerto Rico, the Virgin Islands of the United States, the Canal Zone, American Samoa, Guam and any other islands or territory over which the United States exercises jurisdiction.
(b) Department means the Department of State of the United States of America.
(c) Secretary means the Secretary of State.
(d) National means a citizen of the United States or a noncitizen owing permanent allegiance to the United States.
(e) Passport means a travel document issued under the authority of the Secretary of State attesting to the identity and nationality of the bearer.
(f) Passport Agent means a person designated by the Department to accept passport applications.
(g) Designated nationality examiner means a United States citizen employee of the Department of State assigned or employed abroad (permanently or temporarily) and designated by the Deputy Assistant Secretary of State for Overseas Citizen Services, to grant, issue and verify U.S. passports. A designated nationality examiner may adjudicate claims of acquisition and loss of United States nationality and citizenship as required for the purpose of providing passport and related services. The authority of designated nationality examiners shall include the authority to examine, adjudicate, approve and deny passport applications and applications for related services. The authority of designated nationality examiners shall expire upon termination of the employee’s assignment for such duty and may also be terminated at any time by the Deputy Assistant Secretary for Overseas Citizen Services.
Subpart A – Procedures for Determination of United States Nationality of a Person Abroad
§ 50.2 Determination of U.S. nationality of persons abroad.
The Department shall determine claims to United States nationality when made by persons abroad on the basis of an application for registration, for a passport, or for a Consular Report of Birth Abroad of a Citizen of the United States of America. Such determinations of nationality may be made abroad by a consular officer or a designated nationality examiner. A designated nationality examiner may accept and approve/disapprove applications for registration and accept and approve/disapprove applications for passports and issue passports. Under the supervision of a consular officer, designated nationality examiners shall accept, adjudicate, disapprove and provisionally approve applications for the Consular Report of Birth Abroad. A Consular Report of Birth Abroad may only be issued by a consular officer, who will review a designated nationality examiner’s provisional approval of an application for such report and issue the report if satisfied that the claim to nationality has been established.
§ 50.3 Application for registration.
(a) A person abroad who claims U.S. nationality, or a representative on his behalf, may apply at a consular post for registration to establish his claim to U.S. nationality or to make his residence in the particular consular area a matter of record.
(b) The applicant shall execute the registration form prescribed by the Department and shall submit the supporting evidence required by subpart C of part 51 of this chapter. A diplomatic or consular officer or a designated nationality examiner shall determine the period of time for which the registration will be valid.
§ 50.4 Application for passport.
A claim to U.S. nationality in connection with an application for passport shall be determined by posts abroad in accordance with the regulations contained in part 51 of this chapter.
§ 50.5 Application for registration of birth abroad.
Upon application by the parent(s) or the child’s legal guardian, a consular officer or designated nationality examiner may accept and adjudicate the application for a Consular Report of Birth Abroad of a Citizen of the United States of America for a child born in their consular district. In specific instances, the Department may authorize consular officers and other designated employees to adjudicate the application for a Consular Report of Birth Abroad of a child born outside his/her consular district. Under the supervision of a consular officer, designated nationality examiners shall accept, adjudicate, disapprove and provisionally approve applications for the Consular Report of Birth Abroad. The applicant shall be required to submit proof of the child’s birth, identity and citizenship meeting the evidence requirements of subpart C of part 51 of this subchapter and shall include:
(a) Proof of child’s birth. Proof of child’s birth usually consists of, but is not limited to, an authentic copy of the record of the birth filed with local authorities, a baptismal certificate, a military hospital certificate of birth, or an affidavit of the doctor or the person attending the birth. If no proof of birth is available, the person seeking to register the birth shall submit his affidavit explaining why such proof is not available and setting forth the facts relating to the birth.
(b) Proof of child’s citizenship. Evidence of parent’s citizenship and, if pertinent, evidence of parent’s physical presence in the United States as required for transmittal of claim of citizenship by the Immigration and Nationality Act of 1952 shall be submitted.
§ 50.6 Registration at the Department of birth abroad.
In the time of war or national emergency, passport agents may be designated to complete consular reports of birth for children born at military facilities which are not under the jurisdiction of a consular office. An officer of the Armed Forces having authority to administer oaths may take applications for registration under this section.
§ 50.7 Consular Report of Birth Abroad of a Citizen of the United States of America.
(a) Upon application and the submission of satisfactory proof of birth, identity and nationality, and at the time of the reporting of the birth, the consular officer may issue to the parent or legal guardian, when approved and upon payment of a prescribed fee, a Consular Report of Birth Abroad of a Citizen of the United States of America.
(b) Amended and replacement Consular Reports of Birth Abroad of a Citizen of the United States of America may be issued by the Department of State’s Passport Office upon written request and payment of the required fee.
(c) When it reports a birth under § 50.6, the Department shall furnish the Consular Report of Birth Abroad of a Citizen of the United States of America to the parent or legal guardian upon application and payment of required fees.
(d) A Consular Report of Birth Abroad may be cancelled in accordance with applicable provisions in 22 CFR 51.60 through 51.74.
§ 50.8 Certification of Report of Birth Abroad of a United States Citizen.
At any time subsequent to the issuance of a Consular Report of Birth Abroad of a Citizen of the United States of America, when requested and upon payment of the required fee, the Department of State’s Passport Office may issue to the citizen, the citizen’s parent or legal guardian a certificate entitled “Certification of Report of Birth Abroad of a United States Citizen.”
§ 50.9 Card of identity.
When authorized by the Department, consular offices or designated nationality examiners may issue a card of identity for travel to the United States to nationals of the United States being deported from a foreign country, to nationals/citizens of the United States involved in a common disaster abroad, or to a returning national of the United States to whom passport services have been denied or withdrawn under the provisions of this part or parts 51 or 53 of this subchapter.
§ 50.10 Certificate of nationality.
(a) Any person who acquired the nationality of the United States at birth and who is involved in any judicial or administrative proceedings in a foreign state and needs to establish his U.S. nationality may apply for a certificate of nationality in the form prescribed by the Department.
(b) An applicant for a certificate of nationality must submit evidence of his nationality and documentary evidence establishing that he is involved in judicial or administrative proceedings in which proof of his U.S. nationality is required.
§ 50.11 Certificate of identity for travel to the United States to apply for admission.
(a) A person applying abroad for a certificate of identity under section 360(b) of the Immigration and Nationality Act shall complete the application form prescribed by the Department and submit evidence to support his claim to U.S. nationality.
(b) When a diplomatic or consular officer denies an application for a certificate of identity under this section, the applicant may submit a written appeal to the Secretary through the U.S. embassy or consulate where the individual applied for the certificate of identity, stating the pertinent facts, the grounds upon which U.S. nationality is claimed, and his or her reasons for considering that the denial was not justified.
Subpart B – Retention and Resumption of Nationality
§ 50.20 Retention of nationality.
(a) Section 351(b) of the Immigration and Nationality Act. (1) A person who desires to claim U.S. nationality under the provisions of section 351(b) of the Immigration and Nationality Act must, within the time period specified in the statute, assert a claim to U.S. nationality and subscribe to an oath of allegiance before a diplomatic or consular officer.
(2) In addition, the person shall submit to the Department a statement reciting the person’s identity and acquisition or derivation of U.S. nationality, the facts pertaining to the performance of any act which would otherwise have been expatriative, and his desire to retain his U.S. nationality.
§ 50.30 Resumption of nationality.
(a) Section 324(c) of the Immigration and Nationality Act. (1) A woman formerly a citizen of the United States at birth who wishes to regain her citizenship under section 324(c) of the Immigration and Nationality Act may apply abroad to a diplomatic or consular officer on the form prescribed by the Department to take the oath of allegiance prescribed by section 337 of that Act.
(2) The applicant shall submit documentary evidence to establish her eligibility to take the oath of allegiance. If the diplomatic or consular officer or the Department determines, when the application is submitted to the Department for decision, that the applicant is ineligible for resumption of citizenship because of section 313 of the Immigration and Nationality Act, the oath shall not be administered.
(b) The Act of June 25, 1936. (1) A woman who has been restored to citizenship by the Act of June 25, 1936, as amended by the Act of July 2, 1940, but who failed to take the oath of allegiance prior to December 24, 1952, as prescribed by the nationality laws, may apply abroad to any diplomatic or consular officer to take the oath of allegiance as prescribed by section 337 of the Immigration and Nationality Act.
(2) The applicant shall submit documentary evidence to establish her eligibility to take the oath of allegiance. If the diplomatic or consular officer or the Department determines, when the application is submitted to the Department, that the applicant is ineligible for resumption of citizenship under section 313 of the Immigration and Nationality Act, the oath shall not be administered.
(c) Certification of repatriation. Upon request and payment of the prescribed fee, a diplomatic or consular officer or the Department shall issue a certified copy of the application and oath administered to a woman repatriated under this section.
(d) Section 324(d)(1) of the Immigration and Nationality Act. (1) A former citizen of the United States who did not retain U.S. citizenship by failure to fulfill residency requirements as set out in Section 201(g) of the 1940 Nationality Act or former 301(b) of the 1952 Immigration and Nationality Act, may regain his/her U.S. citizenship pursuant to Section 324(d) INA, by applying abroad at a diplomatic or consular post, or in the U.S. at any Immigration and Naturalization Service office in the form and manner prescribed by the Department of State and the Immigration and Naturalization Service (INS).
(2) The applicant shall submit documentary evidence to establish eligibility to take the oath of allegiance, which includes proof of birth abroad to a U.S. citizen parent between May 24, 1934 and December 24, 1952. If the diplomatic, consular, INS, or passport officer determines that the applicant is ineligible to regain citizenship under section 313 INA, the oath shall not be administered.
Subpart C – Loss of Nationality
§ 50.40 Certification of loss of U.S. nationality.
(a) Administrative presumption. In adjudicating potentially expatriating acts pursuant to INA 349(a), the Department has adopted an administrative presumption regarding certain acts and the intent to commit them. U.S. citizens who naturalize in a foreign country; take a routine oath of allegiance; or accept non-policy level employment with a foreign government need not submit evidence of intent to retain U.S. nationality. In these three classes of cases, intent to retain U.S. citizenship will be presumed. A person who affirmatively asserts to a consular officer, after he or she has committed a potentially expatriating act, that it was his or her intent to relinquish U.S. citizenship will lose his or her U.S. citizenship. In other loss of nationality cases, the consular officer will ascertain whether or not there is evidence of intent to relinquish U.S. nationality.
(b) Whenever a person admits that he or she had the intent to relinquish citizenship by the voluntary and intentional performance of one of the acts specified in Section 349(a) of the Immigration and Nationality Act, and the person consents to the execution of an affidavit to that effect, the diplomatic or consular officer shall attach such affidavit to the certificate of loss of nationality.
(c) Whenever a diplomatic or consular officer has reason to believe that a person, while in a foreign country, has lost his U.S. nationality under any provision of chapter 3 of title III of the Immigration and Nationality Act of 1952, or under any provision of chapter IV of the Nationality Act of 1940, as amended, he shall prepare a certificate of loss of nationality containing the facts upon which such belief is based and shall forward the certificate to the Department.
(d) If the diplomatic or consular officer determines that any document containing information relevant to the statements in the certificate of loss of nationality should not be attached to the certificate, the person may summarize the pertinent information in the appropriate section of the certificate and send the documents together with the certificate to the Department.
(e) If the certificate of loss of nationality is approved by the Department, a copy shall be forwarded to the Immigration and Naturalization Service, Department of Justice. The diplomatic or consular office in which the certificate was prepared shall then forward a copy of the certificate to the person to whom it relates or his representative.
§ 50.50 Renunciation of nationality.
(a) A person desiring to renounce U.S. nationality under section 349(a)(5) of the Immigration and Nationality Act shall appear before a diplomatic or consular officer of the United States in the manner and form prescribed by the Department. The renunciant must include on the form he signs a statement that he absolutely and entirely renounces his U.S. nationality together with all rights and privileges and all duties of allegiance and fidelity thereunto pertaining.
(b) The diplomatic or consular officer shall forward to the Department for approval the oath of renunciation together with a certificate of loss of nationality as provided by section 358 of the Immigration and Nationality Act. If the officer’s report is approved by the Department, copies of the certificate shall be forwarded to the Immigration and Naturalization Service, Department of Justice, and to the person to whom it relates or his representative.
§ 50.51 Review of finding of loss of nationality.
(a) There are no prescribed “procedures for administrative appeal” of issuance of a Certificate of Loss of Nationality for purposes of § 358 of the Immigration and Nationality Act (8 U.S.C. 1501) and no mandatory administrative review procedure prior to resort to judicial processes under § 360 of the Immigration and Nationality Act (8 U.S.C. 1503). Nevertheless, the Department may in its discretion review determinations of loss of nationality at any time after approval of issuance of the Certificate of Loss of Nationality to ensure consistency with governing law (see INA §§ 349 and 356, 8 U.S.C. 1481 and 1488). Such reconsideration may be initiated at the request of the person concerned or another person determined in accordance with guidance issued by the Department to have a legitimate interest.
(b) The primary grounds on which the Department will consider reversing a finding of loss of nationality and vacating a Certificate of Loss of Nationality are:
(1) The law under which the finding of loss was made has been held unconstitutional; or
(2) A major change in the interpretation of the law of expatriation is made as a result of a U.S. Supreme Court decision; or
(3) A major change in the interpretation of the law of expatriation is made by the Department, or is made by a court or another agency and adopted by the Department; and/or
(4) The person presents substantial new evidence, not previously considered, of involuntariness or absence of intent at the time of the expatriating act.
(c) When the Department reverses a finding of loss of nationality, the person concerned shall be considered not to have lost U.S. nationality as of the time the expatriating act was committed, and the Certificate of Loss of Nationality shall be vacated.
(d) Requesting the Department to reverse a finding of loss of nationality and vacate a Certificate of Loss of Nationality is not a prescribed “procedure for administrative appeal” for purposes of § 358 of the Immigration and Nationality Act (8 U.S.C. 1501). The Department’s decision in response to such a request is not a prescribed “procedure for administrative appeal” for purposes of § 358 of the Immigration and Nationality Act (8 U.S.C. 1501). The issuance of a Certificate of Loss of Nationality by the Department is a “final administrative determination” and “final administrative denial” for purposes of §§ 358 and 360 of the Immigration and Nationality Act (8 U.S.C. 1501 and 1503), respectively.
PART 51 – PASSPORTS
§ 51.1 Definitions.
The following definitions are applicable to this part:
Department means the United States Department of State.
Electronic passport means a passport containing an electronically readable device, an electronic chip encoded with the bearer’s personal information printed on the data page, a digitized version of the bearer’s photograph, a unique chip number, and a digital signature to protect the integrity of the stored information.
Minor means an unmarried, unemancipated person under 18 years of age.
Non-personal services contractor, for purposes of this part, is an individual working under a non-personal services contract as defined in 48 CFR 37.101.
Passport means a travel document regardless of format issued under the authority of the Secretary of State attesting to the identity and nationality of the bearer.
Passport acceptance agent means a U.S. national designated by the Department to accept passport applications and to administer oaths and affirmations in connection with such applications.
Passport agent means a U.S. citizen employee of the Department of State, including consular officers, diplomatic officers and consular agents abroad, and such U.S. citizen Department of State employees or contractors as the Assistant Secretary for Consular Affairs may designate for the purpose of administering oaths and affirmations for passport applications.
Passport application means the application form for a United States passport, as prescribed by the Department pursuant to 22 U.S.C. 213 and all documents, photographs, and statements submitted with the form or thereafter in support of the application.
Passport authorizing officer means a U.S. citizen employee who is authorized by the Department to approve the issuance of passports.
Personal services contractor, for purposes of this part, means a contractor who is working under a personal services contract as described in 48 CFR 37.104.
Secretary means the Secretary of State.
Special issuance passport means a regular passport for which no passport fee is collected pursuant to § 51.52, and a service, official or diplomatic passport as defined in § 51.3.
United States when used in a geographical sense means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, the Virgin Islands of the United States, and all other United States territories and possessions.
U.S. citizen means a person who acquired U.S. citizenship at birth or upon naturalization as provided by law and who has not subsequently lost such citizenship.
U.S. national means a U.S. citizen or a U.S. non-citizen national.
U.S. non-citizen national means a person on whom U.S. nationality, but not U.S. citizenship, has been conferred at birth under 8 U.S.C. 1408, or under other law or treaty, and who has not subsequently lost such non-citizen nationality.
Subpart A – General
§ 51.2 Passport issued to nationals only.
(a) A passport may be issued only to a U.S. national.
(b) Unless authorized by the Department, no person may bear more than one valid passport of the same type.
§ 51.3 Types of passports.
(a) Regular passport. A regular passport is issued to a national of the United States.
(b) Service passport. When authorized by the Department, a service passport may be issued to a non-personal services contractor traveling abroad to carry out duties in support of and pursuant to a contract with the U.S. government, when exceptional circumstances make a service passport necessary to enable the individual to carry out his or her contractual duties.
(c) Official passport. When authorized by the Department, an official passport may be issued to:
(1) An officer or employee of the U.S. government traveling abroad to carry out official duties, and family members of such persons;
(2) A U.S. government personal services contractor traveling abroad to carry out official duties on behalf of the U.S. government;
(3) A non-personal services contractor traveling abroad to carry out duties in support of and pursuant to a contract with the U.S. government when the contractor is unable to carry out such duties using a regular or service passport; or
(4) An official or employee of a state, local, tribal, or territorial government traveling abroad to carry out official duties in support of the U.S. government.
(d) Diplomatic passport. A diplomatic passport is issued to a Foreign Service Officer or to a person having diplomatic status or comparable status because he or she is traveling abroad to carry out diplomatic duties on behalf of the U.S. government. When authorized by the Department, spouses and family members of such persons may be issued diplomatic passports. When authorized by the Department, a diplomatic passport may be issued to a U.S. government contractor if the contractor meets the eligibility requirements for a diplomatic passport and the diplomatic passport is necessary to complete his or her contractual duties in support of the U.S. government.
(e) Passport card. A passport card is issued to a national of the United States on the same basis as a regular passport. It is valid only for departure from and entry to the United States through land and sea ports of entry between the United States and Mexico, Canada, the Caribbean and Bermuda. It is not a globally interoperable international travel document.
§ 51.4 Validity of passports.
(a) Signature of bearer. A passport book is valid only when signed by the bearer in the space designated for signature, or, if the bearer is unable to sign, signed by a person with legal authority to sign on his or her behalf. A passport card is valid without the signature of the bearer.
(b) Period of validity of a regular passport and a passport card. (1) A regular passport or passport card issued to an applicant 16 years of age or older is valid for ten years from date of issue unless the Department limits the validity period to a shorter period.
(2) A regular passport or passport card issued to an applicant under 16 years of age is valid for five years from date of issue unless the Department limits the validity period to a shorter period.
(3) A regular passport for which payment of the fee has been excused is valid for a period of five years from the date issued unless limited by the Department to a shorter period.
(c) Period of validity of a service passport. The period of validity of a service passport, unless limited by the Department to a shorter period, is five years from the date of issue, or so long as the bearer maintains the status pursuant to which the service passport is issued, whichever is shorter. A service passport which has not expired must be returned to the Department upon the termination of the bearer’s status or at such other time as the Department may determine.
(d) Period of validity of an official passport. The period of validity of an official passport, unless limited by the Department to a shorter period, is five years from the date of issue, or so long as the bearer maintains his or her official status, whichever is shorter. An official passport which has not expired must be returned to the Department upon the termination of the bearer’s official status or at such other time as the Department may determine.
(e) Period of validity of a diplomatic passport. The period of validity of a diplomatic passport, unless limited by the Department to a shorter period, is five years from the date of issue, or so long as the bearer maintains his or her diplomatic status, whichever is shorter. A diplomatic passport which has not expired must be returned to the Department upon the termination of the bearer’s diplomatic status or at such other time as the Department may determine.
(f) Limitation of validity. The validity period of any passport may be limited by the Department to less than the normal validity period. The bearer of a limited passport may apply for a new passport, using the proper application and submitting the limited passport, applicable fees, photographs, and additional documentation, if required, to support the issuance of a new passport.
(g) Invalidity. A United States passport is invalid as soon as:
(1) The Department approves the revocation notification pursuant to § 51.65(a); or
(2) The passport has been reported as lost or stolen to the Department, a U.S. passport agency or a diplomatic or consular post abroad and the Department has recorded the reported loss or theft; or
(3) The passport is cancelled by the Department (physically, electronically, or otherwise) upon issuance of a new passport of the same type to the bearer; or
(4) The Department has sent a written notice to the bearer that the passport has been invalidated because the Department has not received the applicable fees; or
(5) The passport has been materially changed in physical appearance or composition, or contains a damaged, defective or otherwise nonfunctioning chip, or includes unauthorized changes, obliterations, entries or photographs, or has observable wear or tear that renders it unfit for use as a travel document, and the Department either takes possession of the passport or sends a written notice to the bearer); or
(6) The bearer of a special issuance passport no longer maintains the status pursuant to which the passport was issued; or
(7) The Department has sent a written notice to the bearer, directly or through the bearer’s employing agency, stating that a special issuance passport has been cancelled by the Department.
(8) The Department approves a Certificate of Loss of Nationality for the passport holder pursuant to § 50.40 of this chapter and 8 U.S.C. 1481.
§ 51.5 Adjudication and issuance of passports.
(a) A passport authorizing officer may adjudicate applications and authorize the issuance of passports.
(b) A passport authorizing officer will examine the passport application and all documents, photographs and statements submitted in support of the application in accordance with guidance issued by the Department.
§ 51.6 Verification of passports and release of information from passport records.
(a) Verification. When required by a foreign government, a consular officer abroad may verify a U.S. passport.
(b) Release of information. Information in passport records is subject to the provisions of the Freedom of Information Act (FOIA) and the Privacy Act. Release of this information may be requested in accordance with part 171 or part 172 of this title.
§ 51.7 Passport property of the U.S. Government.
(a) A passport at all times remains the property of the United States and must be returned to the U.S. Government upon demand.
(b) Law enforcement authorities who take possession of a passport for use in an investigation or prosecution must return the passport to the Department on completion of the investigation and/or prosecution.
§ 51.8 Submission of currently valid passport.
(a) When applying for a new passport in person or by mail, an applicant must submit for cancellation any currently valid passport of the same type.
(b) When applying for a new passport on-line, an applicant must have the currently valid passport of the same type available for cancellation via the on-line process.
(c) If an applicant is unable to produce a passport under paragraph (a) or (b) of this section, they must submit a signed statement in the form prescribed by the Department setting forth the circumstances regarding the disposition of the passport.
(d) The Department may deny or limit a passport if the applicant has failed to provide a sufficient and credible explanation for lost, stolen, altered or mutilated passport(s) previously issued to the applicant, after being given a reasonable opportunity to do so.
§ 51.9 Amendment of passports.
Except for the convenience of the U.S. Government, no passport may be amended.
§ 51.10 Replacement passports.
A passport issuing office may issue a replacement passport without payment of applicable fees for the reasons specified in § 51.54.
Subpart B – Application
§ 51.20 General.
(a) An application for a passport, a replacement passport, or other passport related service must be completed using the forms the Department prescribes.
(b) The passport applicant must truthfully answer all questions and must state every material matter of fact pertaining to his or her eligibility for a passport. All information and evidence submitted in connection with an application is considered part of the application. A person providing false information as part of a passport application, whether contemporaneously with the form or at any other time, is subject to prosecution under applicable Federal criminal statutes.
§ 51.21 Execution of passport application.
(a) Application by personal appearance. Except as provided in § 51.28, to assist in establishing identity, a minor, a person who has never been issued a passport in his or her own name, a person who has not been issued a passport for the full validity period of 10 years in his or her own name within 15 years of the date of a new application, or a person who is otherwise not eligible to apply for a passport by mail under paragraphs (b) and (c) of this section, must apply for a passport by appearing in person before a passport agent or passport acceptance agent (see § 51.22). The applicant must verify the application by oath or affirmation before the passport agent or passport acceptance agent, sign the completed application, provide photographs as prescribed by the Department, provide any other information or documents requested and pay the applicable fees prescribed in the Schedule of Fees for Consular Services (see 22 CFR 22.1).
(b) Application by mail or on-line – persons in the United States. (1) A person in the United States who previously has been issued a passport valid for 10 years in his or her own name may apply for a new passport by filling out, signing and mailing an application on the form prescribed by the Department if:
(i) The most recently issued previous passport was issued when the applicant was 16 years of age or older;
(ii) The application is made not more than 15 years following the issue date of the previous passport, except as provided in paragraph (e) of this section; and
(iii) The most recently issued previous passport of the same type is submitted with the new application.
(2) A person in the United States who previously has been issued a passport valid for 10 years in their own name may apply for a new passport by filling out, signing, and submitting an on-line application via the Department’s official website if:
(i) The applicant’s most recently issued passport was issued when the applicant was 16 years of age or older, and has one year or less of validity remaining;
(ii) The application is made not more than 15 years following the issue date of the most recently issued passport of the same type;
(iii) The most recently-issued passport of the same type is available for verification via the on-line process.
(3) The applicant must also provide photographs as prescribed by the Department and pay the applicable fees prescribed in the Schedule of Fees for Consular Services (22 CFR 22.1).
(c) Application by mail – persons abroad. (1) A person in a foreign country where the Department has authorized a post to receive passport applications by mail who previously has been issued a passport valid for 10 years in his or her own name may apply for a new passport in that country by filling out, signing and mailing an application on the form prescribed by the Department if:
(i) The most recently issued previous passport was issued when the applicant was 16 years of age or older;
(ii) The application is made not more than 15 years following the issue date of the previous passport, except as provided in paragraph (e) of this section; and
(iii) The most recently issued previous passport of the same type is submitted with the new application.
(2) The applicant must also provide photographs as prescribed by the Department and pay the applicable fees prescribed in the Schedule of Fees for Consular Services (22 CFR 22.1).
(d) Nothing in this part shall prohibit or limit the Department from authorizing an overseas post to accept a passport application or applications from persons outside the country or outside the person’s country of residence in circumstances which prevent provision of these services to the person where they are located or in other unusual circumstances as determined by the Department.
(e) A senior passport authorizing officer may authorize acceptance of an application by mail where the application is made more than 15 years following the issue date of the previous passport as appropriate and in accordance with guidance issued by the Department.
§ 51.22 Passport agents and passport acceptance agents.
(a) U.S. citizen employees of the Department authorized to serve as passport agents. The following employees of the Department are authorized by virtue of their positions to serve as passport agents unless the Department in an individual case withdraws authorization:
(1) A passport authorizing officer;
(2) A consular officer, or a U.S. citizen consular agent abroad;
(3) A diplomatic officer specifically authorized by the Department to accept passport applications; and
(4) Such U.S. citizen Department of State employees and contractors as the Assistant Secretary for Consular Affairs may designate for the purpose of administering oaths and affirmations for passport applications.
(b) Persons designated by the Department to serve as passport acceptance agents. When designated by the Department, the following persons are authorized to serve as passport acceptance agents unless the Department in an individual case withdraws authorization.
(1) An employee of the clerk of any Federal court;
(2) An employee of the clerk of any state court of record;
(3) A postal employee at a United States post office that has been selected to accept passport applications;
(4) An employee of the Department of Defense at a military installation that has been authorized to accept passport applications;
(5) An employee of a federal agency that has been selected to accept passport applications; and
(6) Any other person specifically designated by the Department.
(c) Qualifications of persons designated by the Department to serve as passport acceptance agents. Before the Department will designate a person described in § 51.22(b) as a passport acceptance agent, his or her employer must certify that the person:
(1) Is a U.S. citizen or a U.S. non-citizen national;
(2) Is 18 years of age or older;
(3) Is a permanent employee, excluding ad hoc, contractual, and volunteer employees; and
(4) Does not have a record of either:
(i) A Federal or State felony conviction; or
(ii) A misdemeanor conviction for crimes involving moral turpitude or breach of trust, including but not limited to embezzlement, identity theft, misappropriation, document fraud, drug offenses, or dishonesty in carrying out a responsibility involving public trust.
(d) Training. A passport acceptance agent described in § 51.22(b) must be trained to apply procedures and practices as detailed in guidance provided by the Department. Training must be successfully completed before accepting passport applications.
(e) Responsibilities. The responsibilities of a passport acceptance agent described in § 51.22(b) include but are not limited to the following:
(1) Certifying the identity of each applicant. Passport acceptance agents must certify that they have personally witnessed the applicant signing his or her application, and that the applicant has:
(i) Personally appeared;
(ii) Presented proper identification, as documented on the application;
(iii) Submitted photographs that are a true likeness; and
(iv) Taken the oath administered by the acceptance agent.
(2) Safeguarding passport application information under the Privacy
Act of 1974. Passport acceptance agents described in § 51.22(b) must not retain copies of executed applications, nor release passport application information to anyone other than the applicant and the Department.
(3) Avoiding conflict of interest. Passport acceptance agents described in § 51.22(b) must not participate in any relationship that could be perceived as a conflict of interest, including but not limited to providing commercial services related to the passport process.
(f) Documentation. Passport acceptance facilities within the United
States must maintain a current listing of all passport acceptance agents designated under § 51.22(b) working at its facility. This list must be updated at least annually and a copy provided to the officer specified by the Department at the appropriate passport issuing office.
(1) The current listing of all designated passport acceptance agents must include the passport acceptance agents’:
(i) Names; and
(ii) Signatures.
(2) Any addition to or deletion from the current listing of designated passport acceptance agents is subject to prior approval by the Department.
§ 51.23 Identity of applicant.
(a) The applicant has the burden of establishing his or her identity.
(b) The applicant must establish his or her identity by the submission of a previous passport, other state, local, or federal government officially issued identification with photograph, or other identifying evidence which may include an affidavit of an identifying witness.
(c) The Department may require such additional evidence of identity as it deems necessary.
§ 51.24 Affidavit of identifying witness.
(a) An identifying witness must execute an affidavit in the form prescribed by the Department before the person who accepts the passport application.
(b) A person who has received or expects to receive a fee for his or her services in connection with executing the application or obtaining the passport may not serve as an identifying witness.
§ 51.25 Name of applicant to be used in passport.
(a) The passport shall be issued in the full name of the applicant, generally the name recorded in the evidence of nationality and identity.
(b) The applicant must explain any material discrepancies between the name on the application and the name recorded in the evidence of nationality and identity. The name provided by the applicant on the application may be used if the applicant submits the documentary evidence prescribed by the Department.
(c) A name change will be recognized for purposes of issuing a passport if the name change occurs in one of the following ways.
(1) Court order or decree. An applicant whose name has been changed by court order or decree must submit with his or her application a copy of the order or decree.
Acceptable types of court orders and decrees include but are not limited to:
(i) A name change order;
(ii) A divorce decree specifically declaring the return to a former name;
(2) Certificate of naturalization issued in a new name.
(3) Marriage. An applicant who has adopted a new name following marriage must present a copy of the marriage certificate.
(4) Operation of state law. An applicant must present operative government-issued legal documentation declaring the name change or issued in the new name.
(5) Customary usage. An applicant who has adopted a new name other than as prescribed in paragraphs (c)(1) through (4) of this section must submit evidence of public and exclusive use of the adopted name for a long period of time, in general five years, as prescribed in guidance issued by the Department. The evidence must include three or more public documents, including one government-issued identification with photograph and other acceptable public documents prescribed by the Department.
§ 51.26 Photographs.
The applicant must submit with his or her application photographs as prescribed by the Department that are a good likeness of and satisfactorily identify the applicant.
§ 51.27 Incompetents.
A legal guardian or other person with the legal capacity to act on behalf of a person declared incompetent may execute a passport application on the incompetent person’s behalf.
§ 51.28 Minors.
(a) Minors under age 16 – (1) Personal appearance. Minors under 16 years of age applying for a passport must appear in person, unless the personal appearance of the minor is specifically excused by a senior passport authorizing officer, pursuant to guidance issued by the Department. In cases where personal appearance is excused, the person(s) executing the passport application on behalf of the minor shall appear in person and verify the application by oath or affirmation before a person authorized by the Secretary to administer oaths or affirmations, unless these requirements are also excused by a senior passport authorizing officer pursuant to guidance issued by the Department.
(2) Execution of passport application by both parents or by each legal guardian. Except as specifically provided in this section, both parents or each of the minor’s legal guardians, if any, whether applying for a passport for the first time or for a renewal, must execute the application on behalf of a minor under age 16 and provide documentary evidence of parentage or legal guardianship showing the minor’s name, date and place of birth, and the names of the parent or parents or legal guardian.
(3) Execution of passport application by one parent or legal guardian. A passport application may be executed on behalf of a minor under age 16 by only one parent or legal guardian if such person provides:
(i) A notarized written statement or affidavit from the non-applying parent or legal guardian, if applicable, consenting to the issuance of the passport, or
(ii) Documentary evidence that such person is the sole parent or has sole custody of the minor. Such evidence includes, but is not limited to, the following:
(A) A birth certificate providing the minor’s name, date and place of birth and the name of only the applying parent;
(B) A Consular Report of Birth Abroad of a Citizen of the United States of America or a Certification of Report of Birth of a United States Citizen providing the minor’s name, date and place of birth and the name of only the applying parent;
(C) A copy of the death certificate for the non-applying parent or legal guardian;
(D) An adoption decree showing the name of only the applying parent;
(E) An order of a court of competent jurisdiction granting sole legal custody to the applying parent or legal guardian containing no travel restrictions inconsistent with issuance of the passport; or, specifically authorizing the applying parent or legal guardian to obtain a passport for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parent or legal guardian;
(F) An order of a court of competent jurisdiction terminating the parental rights of the non-applying parent or declaring the non-applying parent or legal guardian to be incompetent.
(G) An order of a court of competent jurisdiction providing for joint legal custody or requiring the permission of both parents or the court for important decisions will be interpreted as requiring the permission of both parents or the court, as appropriate. Notwithstanding the existence of any such court order, a passport may be issued when compelling humanitarian or emergency reasons relating to the welfare of the minor exist.
(4) Execution of passport application by a person acting in loco parentis. (i) A person may apply in loco parentis on behalf of a minor under age 16 by submitting a notarized written statement or a notarized affidavit from both parents or each legal guardian, if any, specifically authorizing the application.
(ii) If only one parent or legal guardian provides the notarized written statement or notarized affidavit, the applicant must provide documentary evidence that an application may be made by one parent or legal guardian, consistent with § 51.28(a)(3)
(5) Exigent or special family circumstances. A passport may be issued when only one parent, legal guardian or person acting in loco parentis executes the application, in cases of exigent or special family circumstances.
(i) “Exigent circumstances” are defined as time-sensitive circumstances in which the inability of the minor to obtain a passport would jeopardize the health and safety or welfare of the minor or would result in the minor being separated from the rest of his or her traveling party. “Time sensitive” generally means that there is not enough time before the minor’s emergency travel to obtain either the required consent of both parents/legal guardians or documentation reflecting a sole parent’s/legal guardian’s custody rights.
(ii) “Special family circumstances” are defined as circumstances in which the minor’s family situation makes it exceptionally difficult for one or both of the parents to execute the passport application; and/or compelling humanitarian circumstances where the minor’s lack of a passport would jeopardize the health, safety, or welfare of the minor; or, pursuant to guidance issued by the Department, circumstances in which return of a minor to the jurisdiction of his or her home state or habitual residence is necessary to permit a court of competent jurisdiction to adjudicate or enforce a custody determination. A passport issued due to such special family circumstances may be limited for direct return to the United States in accordance with § 51.60(e).
(iii) A parent, legal guardian, or person acting in loco parentis who is applying for a passport for a minor under age 16 under this paragraph must submit a written statement with the application describing the exigent or special family circumstances he or she believes should be taken into consideration in applying an exception.
(iv) Determinations under § 51.28(a)(5) must be made by a senior passport authorizing officer pursuant to guidance issued by the Department.
(6) Nothing contained in this section shall prohibit any Department official adjudicating a passport application filed on behalf of a minor from requiring an applicant to submit other documentary evidence deemed necessary to establish the applying adult’s entitlement to obtain a passport on behalf of a minor under the age of 16 in accordance with the provisions of this regulation.
(b) Minors 16 years of age and above. (1) A minor 16 years of age and above applying for a passport must appear in person and may execute the application for a passport on his or her own behalf unless the personal appearance of the minor is specifically excused by a senior passport authorizing officer pursuant to guidance issued by the Department, or unless, in the judgment of the person before whom the application is executed, it is not advisable for the minor to execute his or her own application. In such case, it must be executed by a parent or legal guardian of the minor, or by a person in loco parentis, unless the personal appearance of the parent, legal guardian or person in loco parentis is excused by the senior passport authorizing officer pursuant to guidance issued by the Department.
(2) The passport authorizing officer may at any time require a minor 16 years of age and above to submit the notarized consent of a parent, a legal guardian, or a person in loco parentis to the issuance of the passport.
(c) Rules applicable to all minors – (1) Objections. At any time prior to the issuance of a passport to a minor, the application may be disapproved and a passport may be denied upon receipt of a written objection from a parent or legal guardian of the minor, or from another party claiming authority to object, so long as the objecting party provides sufficient documentation of his or her custodial rights or other authority to object.
(2) An order from a court of competent jurisdiction providing for joint legal custody or requiring the permission of both parents or the court for important decisions will be interpreted as requiring the permission of both parents or the court as appropriate.
(3) The Department will consider a court of competent jurisdiction to be a U.S. state or federal court or a foreign court located in the minor’s home state or place of habitual residence.
(4) The Department may require that conflicts regarding custody orders, whether domestic or foreign, be settled by the appropriate court before a passport may be issued.
(5) Access by parents and legal guardians to passport records for minors. Either parent or any legal guardian of a minor may upon written request obtain information regarding the application for and issuance of a passport to a minor, unless the requesting parent’s parental rights have been terminated by an order of a court of competent jurisdiction, a copy of which has been provided to the Department. The Department may deny such information to a parent or legal guardian if it determines that the minor objects to disclosure and the minor is 16 years of age or older or if the Department determines that the minor is of sufficient age and maturity to invoke his or her own privacy rights.
Subpart C – Evidence of U.S. Citizenship or Nationality
§ 51.40 Burden of proof.
The applicant has the burden of proving that he or she is a U.S. citizen or non-citizen national.
§ 51.41 Documentary evidence.
The applicant must provide documentary evidence that he or she is a U.S. citizen or non-citizen national.
§ 51.42 Persons born in the United States applying for a passport for the first time.
(a) Primary evidence of birth in the United States. A person born in the United States generally must submit a birth certificate. The birth certificate must show the full name of the applicant, the applicant’s place and date of birth, the full name of the parent(s), and must be signed by the official custodian of birth records, bear the seal of the issuing office, and show a filing date within one year of the date of birth.
(b) Secondary evidence of birth in the United States. If the applicant cannot submit a birth certificate that meets the requirement of paragraph (a) of this section, he or she must submit secondary evidence sufficient to establish to the satisfaction of the Department that he or she was born in the United States. Secondary evidence includes but is not limited to hospital birth certificates, baptismal certificates, medical and school records, certificates of circumcision, other documentary evidence created shortly after birth but generally not more than 5 years after birth, and/or affidavits of persons having personal knowledge of the facts of the birth.
§ 51.43 Persons born outside the United States applying for a passport for the first time.
(a) General. A person born outside the United States must submit documentary evidence that he or she meets all the statutory requirements for acquisition of U.S. citizenship or non-citizen nationality under the provision of law or treaty under which the person is claiming U.S. citizenship or non-citizen nationality.
(b) Documentary evidence. (1) Types of documentary evidence of citizenship for a person born outside the United States include:
(i) A certificate of naturalization.
(ii) A certificate of citizenship.
(iii) A Consular Report of Birth Abroad.
(2) An applicant without one of these documents must produce supporting documents as required by the Department, showing acquisition of U.S. citizenship under the relevant provisions of law.
§ 51.44 Proof of resumption or retention of U.S. citizenship.
An applicant who claims to have resumed or retained U.S. citizenship must submit with the application a certificate of naturalization or evidence that he or she took the steps necessary to resume or retain U.S. citizenship in accordance with the applicable provision of law.
§ 51.45 Department discretion to require evidence of U.S. citizenship or non-citizen nationality.
The Department may require an applicant to provide any evidence that it deems necessary to establish that he or she is a U.S. citizen or non-citizen national, including evidence in addition to the evidence specified in 22 CFR 51.42 through 51.44.
§ 51.46 Return or retention of evidence of U.S. citizenship or non-citizen nationality.
The Department will generally return to the applicant evidence submitted in connection with an application for a passport. The Department may, however, retain evidence when it deems it necessary for anti-fraud or law enforcement or other similar purposes.
Subpart D – Fees
§ 51.50 Form of payment.
Passport fees must be paid in U.S. currency or in other forms of payments permitted by the Department.
§ 51.51 Passport fees.
The Department collects the following passport fees in the amounts prescribed in the Schedule of Fees for Consular Services (22 CFR 22.1):
(a) An application fee, which must be paid at the time of application, except as provided in § 51.52, and is not refundable, except as provided in § 51.53.
(b) An execution fee, except as provided in § 51.52, when the applicant is required to execute the application in person before a person authorized to administer oaths for passport purposes. The execution fee is collected at the time of application and is not refundable (see § 51.55). When execution services are provided by an official of a State or local government or of the United States Postal Service (USPS), the State or local government or USPS may retain the fee if authorized to do so by the Department.
(c) A fee for expedited passport processing, if applicable (see § 51.56).
(d) A surcharge in the amount of twenty-two dollars ($22) on the filing of each application for a passport book, in the amount of twenty-two dollars ($22) on the filing of each application for a passport card for an applicant age 16 or over, and in the amount of fifteen dollars ($15) on the filing of each application for a passport card for an applicant under age 16, in order to cover the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458 (8 U.S.C. 1185 note). The surcharge will be recovered by the Department of State from within the passport application fee reflected in the Schedule of Fees for Consular Services.
(e) An “enhanced border security” surcharge on the filing of each application for a regular passport in an amount set administratively by the Department and published in the Schedule of Fees for Consular Services.
(f) Any other fee that the Department is authorized or required by law to charge for passport services.
(g) The foregoing fees are applicable regardless of the validity period of the passport.
§ 51.52 Exemption from payment of passport fees.
(a) A person who is exempt from the payment of passport fees under this section may obtain a passport book only for no charge. A passport card will not be issued for no charge to the individuals exempt from the payment of passport fees under this section.
(b) The following persons are exempt from payment of passport fees except for the passport execution fee, unless their applications are executed before a federal official, in which case they are also exempt from payment of the passport execution fee:
(1) An officer or employee of the United States traveling on official business and the members of his or her immediate family. The applicant must submit evidence of the official purpose of the travel and, if applicable, authorization for the members of his or her immediate family to accompany or reside with him or her abroad.
(2) An American seaman who requires a passport in connection with his or her duties aboard a United States flag vessel.
(3) A widow, widower, child, parent, brother or sister of a deceased member of the United States Armed Forces proceeding abroad to visit the grave of such service member or to attend a funeral or memorial service for such member.
(4) Other persons whom the Department determines should be exempt from payment of passport fees for compelling circumstances, pursuant to guidance issued by the Department; or
(5) Other categories of persons exempted by law.
§ 51.53 Refunds.
(a) The Department will refund the passport application fee and the security surcharge to any person exempt from payment of passport fees under 22 CFR 51.52 from whom the fee was erroneously collected.
(b) The Department will refund an expedited passport processing fee if the Department fails to provide expedited passport processing as provided in 22 CFR 51.56.
(c) For procedures on refunds of $5.00 or less, see 22 CFR 22.6(b).
§ 51.54 Replacement passports without payment of applicable fees.
A passport issuing office may issue a replacement passport for the following reasons without payment of applicable fees:
(a) To correct an error or rectify a mistake of the Department;
(b) When the bearer has changed his or her name or other personal identifier listed on the data page of the passport, and applies for a replacement passport within one year of the date of the passport’s original issuance.
(c) When the bearer of an emergency full fee passport issued for a limited validity period applies for a full validity passport within one year of the date of the passport’s original issuance.
(d) When a passport is retained by U.S. law enforcement or judiciary for evidentiary purposes and the bearer is still eligible to have a passport.
(e) When a passport is issued to replace a passport with a failed electronic chip for the balance of the original validity period.
§ 51.55 Execution fee not refundable.
The fee for the execution of a passport application is not refundable.
§ 51.56 Expedited passport processing.
(a) Within the United States, an applicant for passport service (including issuance or replacement of a passport) may request expedited processing. The Department may decline the request.
(b) Expedited passport processing shall mean completing processing within the number of business days published on the Department’s Web site, http://www.travel.state.gov, commencing when the application reaches a Passport Agency or, if the application is already with a Passport Agency, commencing when the request for expedited processing is approved. The processing will be considered completed when the passport is ready to be picked up by the applicant or is mailed to the applicant, or a letter of passport denial is transmitted to the applicant.
(c) A fee is charged for expedited passport processing (see 22 CFR 51.51(c)). The fee does not cover any costs of mailing above the normal level of service regularly provided by the Department. The cost of expedited mailing must be paid by the applicant.
(d) The Department will not charge the fee for expedited passport processing if the Department’s error, mistake or delay caused the need for expedited processing.
Subpart E – Denial, Revocation, and Restriction of Passports and Cancellation of Consular Reports of Birth Abroad
§ 51.60 Denial and restriction of passports.
(a) The Department may not issue a passport, except a passport for direct return to the United States, in any case in which the Department determines or is informed by competent authority that:
(1) The applicant is in default on a loan received from the United States under 22 U.S.C. 2671(b)(2)(B) for the repatriation of the applicant and, where applicable, the applicant’s spouse, minor child(ren), and/or other immediate family members, from a foreign country (see 22 U.S.C. 2671(d)); or
(2) The applicant has been certified by the Secretary of Health and Human Services as notified by a state agency under 42 U.S.C. 652(k) to be in arrears of child support in an amount determined by statute.
(3) [Reserved]
(4) The applicant is a covered sex offender as defined in 22 U.S.C. 212b(c)(1), unless the passport, no matter the type, contains the conspicuous identifier placed by the Department as required by 22 U.S.C. 212b.
(b) The Department may refuse to issue a passport in any case in which the Department determines or is informed by competent authority that:
(1) The applicant is the subject of an outstanding Federal warrant of arrest for a felony, including a warrant issued under the Federal Fugitive Felon Act (18 U.S.C. 1073); or
(2) The applicant is subject to a criminal court order, condition of probation, or condition of parole, any of which forbids departure from the United States and the violation of which could result in the issuance of a Federal warrant of arrest, including a warrant issued under the Federal Fugitive Felon Act; or
(3) The applicant is subject to a U.S. court order committing him or her to a mental institution; or
(4) The applicant has been legally declared incompetent by a court of competent jurisdiction in the United States; or
(5) The applicant is the subject of a request for extradition or provisional request for extradition which has been presented to the government of a foreign country; or
(6) The applicant is the subject of a subpoena received from the United States pursuant to 28 U.S.C. 1783, in a matter involving Federal prosecution for, or grand jury investigation of, a felony; or
(7) The applicant is a minor and the passport may be denied under 22 CFR 51.28; or
(8) The applicant is subject to an order of restraint or apprehension issued by an appropriate officer of the United States Armed Forces pursuant to chapter 47 of title 10 of the United States Code; or
(9) The applicant is the subject of an outstanding state or local warrant of arrest for a felony; or
(10) The applicant is the subject of a request for extradition or provisional arrest submitted to the United States by a foreign country.
(c) The Department may refuse to issue a passport in any case in which:
(1) The applicant has not repaid a loan received from the United States under 22 U.S.C. 2670(j) for emergency medical attention, dietary supplements, and other emergency assistance, including, if applicable, assistance provided to his or her child(ren), spouse, and/or other immediate family members in a foreign country; or
(2) The applicant has not repaid a loan received from the United States under 22 U.S.C. 2671(b)(2)(B) or 22 U.S.C. 2671(b)(2)(A) for the repatriation or evacuation of the applicant and, if applicable, the applicant’s child(ren), spouse, and/or other immediate family members from a foreign country to the United States; or
(3) The applicant has previously been denied a passport under this section or 22 CFR 51.61, or the Department has revoked the applicant’s passport or issued a limited passport for direct return to the United States under 22 CFR 51.62, and the applicant has not shown that there has been a change in circumstances since the denial, revocation or issuance of a limited passport that warrants issuance of a passport; or
(4) The Secretary determines that the applicant’s activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United States.
(d) The Department may refuse to issue a passport in a case in which the Department is informed by an appropriate foreign government authority or international organization that the applicant is the subject of a warrant of arrest for a felony.
(e) The Department may refuse to issue a passport, except a passport for direct return to the United States, in any case in which the Department determines or is informed by a competent authority that the applicant is a minor who has been abducted, wrongfully removed or retained in violation of a court order or decree and return to his or her home state or habitual residence is necessary to permit a court of competent jurisdiction to determine custody matters.
(f) The Department may refuse to issue a passport to an applicant who fails to provide his or her Social Security account number on his or her passport application or who willfully, intentionally, negligently, or recklessly includes an incorrect or invalid Social Security account number.
(g) The Department shall not issue a passport card to an applicant who is a covered sex offender as defined in 22 U.S.C. 212b(c)(1).
(h) The Department may not issue a passport, except a limited validity passport for direct return to the United States or in instances where the Department finds that emergency circumstances or humanitarian reasons exist, in any case in which:
(1) The Department is notified by the Attorney General that, during the covered period as defined by 22 U.S.C. 212a:
(i) The applicant was convicted of a violation of 18 U.S.C. 2423, and
(ii) The individual used a passport or passport card or otherwise crossed an international border in committing the underlying offense.
(2) The applicant is certified by the Secretary of the Treasury as having a seriously delinquent tax debt as described in 26 U.S.C. 7345.
(i) In appropriate circumstances, where an individual’s passport application is denied or passport revoked consistent with this part, the Department may issue a limited validity passport good only for direct return to the United States.
§ 51.61 Denial of passports to certain convicted drug traffickers.
(a) A passport may not be issued in any case in which the Department determines or is informed by competent authority that the applicant is subject to imprisonment or supervised release as the result of a felony conviction for a Federal or state drug offense, if the individual used a U.S. passport or otherwise crossed an international border in committing the offense, including a felony conviction arising under:
(1) The Controlled Substances Act (21 U.S.C. 801 et seq.) or the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.); or
(2) Any Federal law involving controlled substances as defined in section 802 of the Controlled Substances Act (21 U.S.C. 801 et seq.); or
(3) The Bank Secrecy Act (31 U.S.C. 5311 et seq.) or the Money Laundering Act (18 U.S.C. 1956 et seq.) if the Department is in receipt of information that supports the determination that the violation involved is related to illicit production of or trafficking in a controlled substance; or
(4) Any state law involving the manufacture, distribution, or possession of a controlled substance.
(b) A passport may be refused in any case in which the Department determines or is informed by competent authority that the applicant is subject to imprisonment or supervised release as the result of a misdemeanor conviction of a Federal or state drug offense if the individual used a U.S. passport or otherwise crossed an international border in committing the offense, other than a first conviction for possession of a controlled substance, including a misdemeanor conviction arising under:
(1) The Federal statutes described in § 51.61(a); or
(2) Any State law involving the manufacture, distribution, or possession of a controlled substance.
(c) Notwithstanding paragraph (a) of this section, the Department may issue a passport when the competent authority confirms, or the Department otherwise finds, that emergency circumstances or humanitarian reasons exist.
§ 51.62 Revocation or limitation of passports and cancellation of Consular Reports of Birth Abroad.
(a) The Department may revoke or limit a passport when:
(1) The bearer of the passport may be denied a passport under 22 CFR 51.60 or 51.61 or any other applicable provision contained in this part;
(2) The passport was illegally, fraudulently or erroneously obtained from the Department; or was created through illegality or fraud practiced upon the Department; or
(3) The passport has been fraudulently altered or misused.
(b) The Department may revoke a passport when the Department has determined that the bearer of the passport is not a U.S. national, or the Department is on notice that the bearer’s certificate of citizenship or certificate of naturalization has been cancelled.
(c) The Department may cancel a Consular Report of Birth Abroad when:
(1) The Consular Report of Birth Abroad was illegally, fraudulently or erroneously obtained from the Department, or was created through illegality or fraud practiced upon the Department;
(2) The Consular Report of Birth Abroad has been fraudulently altered or misused; or
(3) The Department has determined that the bearer of the Consular Report of Birth Abroad is not a U.S. national, or the Department is on notice that the bearer’s certificate of citizenship has been cancelled.
(d) The Department shall revoke a U.S. passport in any case in which the Department is notified by the Attorney General, that during the covered period as defined by 22 U.S.C. 212a:
(1) The applicant was convicted of a violation of 18 U.S.C. 2423, and
(2) The individual used a passport or otherwise crossed an international border in committing the underlying offense.
(3) Notwithstanding paragraphs (d)(1) and (2) of this section, the Department may issue a limited validity passport for direct return to the United States.
§ 51.63 Passports invalid for travel into or through restricted areas; prohibition on passports valid only for travel to Israel.
(a) The Secretary may restrict the use of a passport for travel to or use in a country or area which the Secretary has determined is:
(1) A country with which the United States is at war; or
(2) A country or area where armed hostilities are in progress; or
(3) A country or area in which there is imminent danger to the public health or physical safety of United States travelers.
(b) Any determination made and restriction imposed under paragraph (a) of this section, or any extension or revocation of the restriction, shall be published in the
(c) A passport may not be designated as valid only for travel to Israel.
§ 51.64 Special validation of passports for travel to restricted areas.
(a) A U.S. national may apply to the Department for a special validation of his or passport to permit its use for travel to, or use in, a restricted country or area. The application must be accompanied by evidence that the applicant falls within one of the categories in paragraph (c) of this section.
(b) The Department may grant a special validation if it determines that the validation is in the national interest of the United States.
(c) A special validation may be determined to be in the national interest if:
(1) The applicant is a professional reporter or journalist, the purpose of whose trip is to obtain, and make available to the public, information about the restricted area; or
(2) The applicant is a representative of the International Committee of the Red Cross or the American Red Cross traveling pursuant to an officially-sponsored Red Cross mission; or
(3) The applicant’s trip is justified by compelling humanitarian considerations; or
(4) The applicant’s request is otherwise in the national interest.
§ 51.65 Notification of denial, revocation or cancellation of passports and Consular Reports of Birth Abroad.
(a) The Department will send notice in writing to any person whose application for issuance of a passport or Consular Report of Birth Abroad has been denied, whose passport has been revoked, or whose Consular Report of Birth Abroad has been cancelled. The notification will set forth the specific reasons for the denial, revocation or cancellation and, if applicable, the procedures for review available under 22 CFR 51.70 through 51.74.
(b) An application for a passport or Consular Report of Birth Abroad will be denied if an applicant fails to meet his or her burden of proof under the applicable regulations or otherwise does not provide documentation sufficient to establish entitlement to a passport or a Consular Report of Birth Abroad, or does not provide additional information as requested by the Department within the time provided in the notification by the Department that additional information is required. Thereafter, if an applicant wishes the Department to adjudicate his or her claim of entitlement to a passport or Consular Report of Birth Abroad, he or she must submit a new application, supporting documents, and photograph, along with all applicable fees.
(c) The Department may, in its sole discretion, administratively re-open a previously filed passport or Consular Report of Birth Abroad application in order to issue a passport or Consular Report of Birth Abroad.
§ 51.66 Surrender of passport and/or Consular Report of Birth Abroad.
The bearer of a passport that is revoked or of a Consular Report of Birth Abroad that is cancelled must surrender it to the Department or its authorized representative upon demand.
Subpart F – Procedures for Review of Certain Denials and Revocations
§ 51.70 Request for hearing to review certain denials and revocations.
(a) A person whose passport has been denied or revoked under 22 CFR 51.60(b)(1) through (10), 51.60(c), 51.60(d), 51.61(b), 51.62(a)(1), or 51.62(a)(2), or whose Consular Report of Birth Abroad is cancelled under § 51.62(c)(1) or § 51.62(c)(2), may request a hearing to review the basis for the denial, revocation, or cancellation, provided that the Department receives such a request, in writing, from such person or his or her attorney within 60 days of his or her receipt of the notice of the denial, revocation, or cancellation. Failure to timely request a hearing means the denial, revocation, or cancellation is the Department’s final action.
(b) The provisions of §§ 51.70 through 51.74 do not apply to any action of the Department denying, restricting, revoking, cancelling or invalidating a passport or Consular Report of Birth Abroad, or in any other way adversely affecting the ability of a person to receive or use a passport or Consular Report of Birth Abroad, for reasons not set forth in § 51.70(a), including, as applicable, those listed at:
(1) Section 51.60(a) (instances where the Department may not issue a passport, except for direct return to the United States);
(2) Section 51.60(f) (failure to provide a social security number, or purposefully providing an incorrect number);
(3) Section 51.60(g) (denial of passport cards to certain convicted sex offenders);
(4) Section 51.61(a) (denial of passports to certain convicted drug traffickers);
(5) Section 51.62(b) (revocation of passports for non-U.S. nationals or where a certificate of citizenship or naturalization has been cancelled);
(6) Section 51.62(c)(3) (cancellation of a Consular Report of Birth Abroad upon the Department’s determination that the bearer is not a U.S. national or where a certificate of citizenship has been cancelled);
(7) Section 51.62(d) (revocation of passports issued to certain convicted sex offenders);
(8) Section 51.64 (specially validated passports);
(9) Any other provision not listed at § 51.70(a).
(c) If a timely request for a hearing is made by a person seeking a hearing in accordance with these regulations, the Department will make reasonable efforts to hold the hearing within 90 days of the date the Department receives the request.
(d) Within a reasonable period of time prior to the hearing, the Department will give the person requesting the hearing written notice of the date, time and place of the hearing and copies of the evidence relied on in denying, revoking, or cancelling the passport or Consular Report of Birth Abroad.
(e) The person requesting the hearing may obtain one continuance, not to exceed an additional 90 days, upon written request. The request for a continuance must be received by the Department as soon as practicable and in no case less than five business days prior to the scheduled hearing date. Any further continuances are within the sole discretion of the Department.
§ 51.71 The hearing.
(a) The Department will name a hearing officer, who will generally be a Department employee from the Bureau of Consular Affairs. The hearing officer will make only preliminary findings of fact and submit recommendations based on the record of the hearing, as defined in 22 CFR 51.72, to the Deputy Assistant Secretary for Passport Services, or his or her designee, in the Bureau of Consular Affairs.
(b) The hearing shall take place in Washington, DC or, if the person requesting the hearing is overseas, at the appropriate U.S. diplomatic or consular post. The person requesting the hearing must appear in person or with or through his or her attorney. Failure to appear at the scheduled hearing will constitute an abandonment of the request for a hearing, and the Department’s revocation, cancellation or denial will be considered the Department’s final action.
(c) Any attorney appearing at a hearing must be admitted to practice in any state of the United States, the District of Columbia, or any territory or possession of the United States, or be admitted to practice before the courts of the country in which the hearing is to be held.
(d) There is no right to subpoena witnesses or to conduct discovery. However, the person requesting the hearing may testify in person, offer evidence in his or her own behalf, present witnesses, and make arguments at the hearing. The person requesting the hearing is responsible for all costs associated with the presentation of his or her case, including the cost of interpreters, who must be certified in accordance with standards established for federal courts under 28 U.S.C. 1827. The Department may present witnesses, offer evidence, and make arguments in its behalf. The Department is responsible for all costs associated with the presentation of its case.
(e) The hearing is informal and permissive. As such, the provisions of 5 U.S.C. 554 et seq. do not apply to the hearing. Formal rules of evidence also do not apply; however, the hearing officer may impose reasonable restrictions on relevancy, materiality, and competency of evidence presented. Testimony will be under oath or by affirmation under penalty of perjury. The hearing officer may not consider any information that is not also made available to the person requesting the hearing, the Department, and made a part of the record of the proceeding.
(f) If any witness is unable to appear, the hearing officer may, in his or her discretion, accept an affidavit or sworn deposition testimony of the witness, the cost for which will be the responsibility of the requesting party, subject to such limits as the hearing officer deems appropriate.
(g) The person requesting the hearing and the Department of State may submit written briefs or argument prior to the hearing, but it is not required. The hearing officer will specify the date and schedule for the parties to submit written briefs, should they choose to do so.
(h) The purpose of the hearing is to provide the person requesting the hearing an opportunity to challenge the basis for the Department’s decision to deny or revoke the passport, or cancel the Consular Report of Birth Abroad. The burden of production is on the Department, and the Department shall provide the evidence it relied upon in revoking or denying the passport, or cancelling the Consular Report of Birth Abroad, prior to the hearing. The burden of persuasion is on the person requesting the hearing, to prove by a preponderance of the evidence that the Department improperly revoked the passport or denied the passport application, or cancelled the Consular Report of Birth Abroad, based on the facts and law in effect at the time such action was taken.
§ 51.72 Transcript and record of the hearing.
A qualified reporter, provided by the Department, will make a complete verbatim transcript of the hearing. The person requesting the hearing or his or her attorney may review and purchase a copy of the transcript directly from the reporter. The hearing transcript and all the information and documents received by the hearing officer, whether or not deemed relevant, will constitute the record of the hearing. The hearing officer’s preliminary findings and recommendations are deliberative, and shall not be considered part of the record unless adopted by the Deputy Assistant Secretary for Passport Services, or his or her designee.
§ 51.73 Privacy of hearing.
Only the person requesting the hearing, his or her attorney, an interpreter, the hearing officer, the reporter transcribing the hearing, and employees of the Department concerned with the presentation of the case may be present at the hearing. Witnesses may be present only while actually giving testimony or as otherwise directed by the hearing officer.
§ 51.74 Final decision.
After reviewing the record of the hearing and the preliminary findings of fact and recommendations of the hearing officer, and considering legal and policy considerations he or she deems relevant, the Deputy Assistant Secretary for Passport Services, or his or her designee, will decide whether to uphold the denial or revocation of the passport or cancellation of the Consular Report of Birth Abroad. The Department will promptly notify the person requesting the hearing of the decision in writing. If the decision is to uphold the denial, revocation, or cancellation, the notice will contain the reason(s) for the decision. The decision is final and is not subject to further administrative review.
PART 53 – PASSPORT REQUIREMENT AND EXCEPTIONS
§ 53.1 Passport requirement; definitions.
(a) It is unlawful for a citizen of the United States, unless excepted under 22 CFR 53.2, to enter or depart, or attempt to enter or depart, the United States, without a valid U.S. passport.
(b) For purposes of this part “United States” means “United States” as defined in section 215(c) of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1185(c)).
§ 53.2 Exceptions.
(a) U.S. citizens, as defined in § 41.0 of this chapter, are not required to bear U.S. passports when traveling directly between parts of the United States as defined in § 51.1 of this chapter.
(b) A U.S. citizen is not required to bear a valid U.S. passport to enter or depart the United States:
(1) When traveling as a member of the Armed Forces of the United States on active duty and when he or she is in the uniform of, or bears documents identifying him or her as a member of, such Armed Forces, when under official orders or permit of such Armed Forces, and when carrying a military identification card; or
(2) When traveling entirely within the Western Hemisphere on a cruise ship, and when the U.S. citizen boards the cruise ship at a port or place within the United States and returns on the return voyage of the same cruise ship to the same United States port or place from where he or she originally departed. That U.S. citizen may present a government-issued photo identification document in combination with either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad issued by the Department, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services before entering the United States; if the U.S. citizen is under the age of 16, he or she may present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad issued by the Department, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services; or
(3) When traveling as a U.S. citizen seaman, carrying an unexpired Merchant Marine Document (MMD) in conjunction with maritime business. The MMD is not sufficient to establish citizenship for purposes of issuance of a United States passport under part 51 of this chapter; or
(4) Trusted traveler programs – (i) NEXUS Program. When traveling as a participant in the NEXUS program, he or she may present a valid NEXUS program card when using a NEXUS Air kiosk or when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry. A U.S. citizen who enters the United States by pleasure vessel from Canada under the remote inspection system may also present a NEXUS program card;
(ii) FAST program. A U.S. citizen who is traveling as a participant in the FAST program may present a valid FAST card when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry;
(iii) SENTRI program. A U.S. citizen who is traveling as a participant in the SENTRI program may present a valid SENTRI card when entering the United States from contiguous territory or adjacent islands at a land or sea port-of-entry; The NEXUS, FAST, and SENTRI cards are not sufficient to establish citizenship for purposes of issuance of a U.S. passport under part 51 of this chapter; or
(5) When arriving at land ports of entry and sea ports of entry from contiguous territory or adjacent islands, Native American holders of American Indian Cards (Form I-872) issued by U.S. Citizenship and Immigration Services (USCIS) may present those cards; or
(6) When arriving at land or sea ports of entry from contiguous territory or adjacent islands, U.S. citizen holders of a tribal document issued by a United States qualifying tribal entity or group of United States qualifying tribal entities as provided in 8 CFR 235.1(e) may present that document. Tribal documents are not sufficient to establish citizenship for purposes of issuance of a United States passport under part 51 of this chapter; or
(7) When bearing documents or combinations of documents the Secretary of Homeland Security has determined under Section 7209(b) of Public Law 108-458 (8 U.S.C. 1185 note) are sufficient to denote identity and citizenship. Such documents are not sufficient to establish citizenship for purposes of issuance of a U.S. passport under part 51 of this chapter; or
(8) When the U.S. citizen is employed directly or indirectly on the construction, operation, or maintenance of works undertaken in accordance with the treaty concluded on February 3, 1944, between the United States and Mexico regarding the functions of the International Boundary and Water Commission (IBWC), TS 994, 9 Bevans 1166, 59 Stat. 1219, or other related agreements, provided that the U.S. citizen bears an official identification card issued by the IBWC and is traveling in connection with such employment; or
(9) When the Department of State waives, pursuant to EO 13323 of December 30, 2003, Section 2, the requirement with respect to the U.S. citizen because there is an unforeseen emergency; or
(10) When the Department of State waives, pursuant to EO 13323 of December 30, 2003, Sec 2, the requirement with respect to the U.S. citizen for humanitarian or national interest reasons; or
(11) When the U.S. citizen is a child under the age of 19 arriving from contiguous territory in the following circumstances:
(i) Children under age 16. A United States citizen who is under the age of 16 is permitted to present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services when entering the United States from contiguous territory at land or sea ports-of-entry; or
(ii) Groups of children under age 19. A U.S. citizen who is under age 19 and who is traveling with a public or private school group, religious group, social or cultural organization, or team associated with a youth sport organization may present either an original or a copy of his or her birth certificate, a Consular Report of Birth Abroad, or a Certificate of Naturalization issued by U.S. Citizenship and Immigration Services when arriving in the United States from contiguous territory at all land or sea ports of entry, when the group, organization or team is under the supervision of an adult affiliated with the organization and when the child has parental or legal guardian consent to travel. For purposes of this paragraph, an adult is considered to be a person who is age 19 or older. The following requirements will apply:
(A) The group, organization, or team must provide to CBP upon crossing the border on organizational letterhead:
(1) The name of the group, organization or team, and the name of the supervising adult;
(2) A list of the children on the trip; and
(3) For each child, the primary address, primary phone number, date of birth, place of birth, and the name of at least one parent or legal guardian.
(B) The adult leading the group, organization, or team must demonstrate parental or legal guardian consent by certifying in the writing submitted in paragraph (b)(11)(ii)(A) of this section that he or she has obtained for each child the consent of at least one parent or legal guardian.
(C) The procedure described in this paragraph is limited to members of the group, organization, or team who are under age 19. Other members of the group, organization, or team must comply with other applicable document and/or inspection requirements found in 8 CFR parts 211, 212, or 235.
§ 53.3 Attempt of a citizen to enter without a valid passport.
The appropriate officer at the port of entry shall report to the Department of State any citizen of the United States who attempts to enter the United States contrary to the provisions of this part, so that the Department of State may apply the waiver provisions of § 53.2(h) and § 53.2(i) to such citizen, if appropriate.
§ 53.4 Optional use of a valid passport.
Nothing in this part shall be construed to prevent a citizen from using a valid U.S. passport in a case in which that passport is not required by this part 53, provided such travel is not otherwise prohibited.
SUBCHAPTER G – PUBLIC DIPLOMACY AND EXCHANGES
PART 61 – WORLD-WIDE FREE FLOW OF AUDIO-VISUAL MATERIALS
§ 61.1 Purpose.
The Department of State administers the “Beirut Agreement of 1948”, a multinational treaty formally known as the Agreement for Facilitating the International Circulation of Visual and Auditory Material of an Educational, Scientific and Cultural Character. This Agreement facilitates the free flow of educational, scientific and cultural audio-visual materials between nations by providing favorable import treatment through the elimination or reduction of import duties, licenses, taxes, or restrictions. The United States and other participating governments facilitate this favorable import treatment through the issuance or authentication of a certificate that the audio-visual material for which favorable treatment is sought conforms with criteria set forth in the Agreement.
§ 61.2 Definitions.
Department – means the Department of State.
Applicant – means: (1) The United States holder of the “basic rights” in the material submitted for export certification; or (2) the holder of a foreign certificate seeking import authentication.
Application form – means the Application for Certificate of International Educational Character (Form IAP-17) which is required for requesting Department certification of United States produced audio-visual materials under the provisions of the Beirut Agreement.
Attestation Officer – means the Chief Attestation Officer of the United States and any member of his or her staff with authority to issue Certificates or Importation Documents.
Audio-visual materials – means: (1) Films, filmstrips and microfilm in exposed and developed negative form, or in positive form, viz., masters or prints, teletranscriptions, kinescopes, videotape; (2) electronic sound recordings and sound/picture recordings of all types and forms or pressings and transfers thereform; (3) slides and transparencies; moving and static models, wallcharts, globes, maps and posters.
Authentication – means the process through which an applicant obtains a United States Importation Document for Audio-visual Materials (Form IA-862).
Basic rights – means the world-wide non-restrictive ownership rights in audio-visual materials from which the assignment of subsidiary rights (such as language versions, television, limited distribution, reproduction, etc.) are derived.
Beirut Agreement – means the “Agreement for Facilitating the International Circulation of Visual and Auditory Materials of an Educational, Scientific, or Cultural Character.”
Certificate – means a document attesting that the named material complies with the standards set forth in Article I of the Beirut Agreement issued by: (1) The appropriate government agency of the State wherein the material to which the certificate relates originated, or (2) by the United Nations Educational, Scientific or Cultural Organization.
Certification – means the process of obtaining a certificate attesting that audio-visual materials of United States origin being exported from the United States comply with the standards set forth in Article I of the Beirut Agreement, as interpreted pursuant to Section 207 of Public Law 101-138.
Collateral instructional material – means a teacher’s manual, study guide, or similar instructional material prepared or reviewed by a bona fide subject matter specialist. Such material must delineate the informational or instructional objectives of the audio-visual material and illustrate or explain how to utilize such material to attain the stated objectives.
Committee on attestation – means the committee which advises the Attestation Officer on matters of policy and the evaluation of specific materials.
Exports – means educational, scientific, and cultural audio-visual material of United States origin, being sent from the United States.
Importation document – means the United States Importation Document for Audio-visual Materials (Form IA-862) issued by the Chief Attestation Officer of the United States which attests that materials of foreign origin entering the United States comply with the standards set forth in Article I of the Beirut Agreement (as interpreted pursuant to section 207 of Public Law 101-138) and is therefore entitled to duty-free entry into the United States pursuant to the provisions of United States Customs Bureau Harmonized Tariff System Item No. 9817.00.4000.
Imports – means educational, scientific, and cultural audio-visual material of foreign origin being brought into the United States.
Instruct or inform – means to teach, train or impart knowledge through the development of a subject or aspect of a subject to aid the viewer or listener in a learning process. The instructional or informational character of audio-visual material may be evidenced by the presence of collateral instructional material.
Knowledge – means a body of facts and principles acquired by instruction, study, research, or experience.
Review Board – means the panel appointed by the Secretary of State to review appeals filed by applicants from decisions rendered by an Attestation Officer.
Secretary of State – means the Secretary of State of the State Department.
Serial certification – means certification by the Department of materials produced in series form and which, for time-sensitive reasons, cannot be reviewed prior to production; but samples are provided on application, and the materials are subject to post-certification review.
Subject matter specialist – means an individual who has acquired special skill in or knowledge of a particular subject through professional training or practical experience.
§ 61.3 Certification and authentication criteria.
(a) The Department shall certify or authenticate audio-visual materials submitted for review as educational, scientific and cultural in character and in compliance with the standards set forth in Article I of the Beirut Agreement when: (1) Their primary purpose or effect is to instruct or inform through the development of a subject or aspect of a subject, or when their content is such as to maintain, increase or diffuse knowledge, and augment international understanding and goodwill; and
(2) The materials are representative, authentic, and accurate; and
(3) The technical quality is such that it does not interfere with the use made of the material.
(b) The Department will not certify or authenticate any audio-visual material submitted for review which:
(1) Does not primarily instruct or inform through the development of a subject or aspect of a subject and its content is not such as to maintain, increase or diffuse knowledge.
(2) Contains widespread and gross misstatements of fact.
(3) Is not technically sound.
(4) Has as its primary purpose or effect to amuse or entertain.
(5) Has as its primary purpose or effect to inform concerning timely current events (newsreels, newscasts, or other forms of “spot” news).
(6) Stimulates the use of a special process or product, advertises a particular organization or individual, raises funds, or makes unsubstantiated claims of exclusivity.
(c) In its administration of this section, the Department shall not fail to qualify audio-visual material because:
(1) It advocates a particular position or viewpoint, whether or not it presents or acknowledges opposing viewpoints;
(2) It might lend itself to misinterpretation, or to misrepresentation of the United States or other countries, or their people or institutions;
(3) It is not representative, authentic, or accurate or does not represent the current state of factual knowledge of a subject or aspect of a subject unless the material contains widespread and gross misstatements of fact;
(4) It does not augment international understanding and goodwill, unless its primary purpose or effect is not to instruct or inform through the development of a subject or an aspect of a subject and its content is not such as to maintain, increase, or diffuse knowledge; or
(5) In the opinion of the Department the material is propaganda.
(d) The Department may certify or authenticate materials which have not been produced at the time of application upon an affirmative determination that:
(1) The materials will be issued serially,
(2) Representative samples of the serial material have been provided at the time of application,
(3) Future titles and release dates have been provided to the Department at the time of application,
(4) The applicant has affirmed that:
(i) Future released materials in the series will conform to the substantive criteria for certification delineated at paragraphs (a) through (c) of this section;
(ii) Such materials will be similar to the representative samples provided to the Department on application; and
(iii) The applicant will provide the Department with copies of the items themselves or descriptive materials for post-certification review.
(e) If the Department determines through a post-certification review that the materials do not comply with the substantive criteria for certification delineated at paragraphs (a) through (c) of this section, the applicant will no longer be eligible for serial certifications. Ineligibility for serial certifications will not affect an applicant’s eligibility for certification of materials reviewed prior to production.
§ 61.4 Certification procedures – Exports.
(a) Applicants seeking certification of U.S. produced audio-visual materials shall submit to the Department a completed Application Form for each subject or series for which certification is sought. Collateral instructional material, if any, and a copy or example of the material must accompany the Application Form.
(b) Upon an affirmative determination by the Department that the submitted materials satisfy the Certification and Authentication Criteria set forth in § 502.3 of this part, a Certificate shall be issued. A copy of such Certificate must accompany each export shipment of the certified material.
§ 61.5 Authentication procedures – Imports.
(a) Applicants seeking Department authentication of foreign produced audio-visual materials shall submit to the Department a bona fide foreign certificate, a copy or example of the material for which authentication is sought, and related collateral instructional material, if any.
(b) Upon an affirmative determination by the Department that the submitted materials satisfy the Certification and Authentication Criteria set forth in § 502.3 of this part, an Importation Document shall be issued. A copy of such Importation Document must be presented to United States Customs at the port of entry.
§ 61.6 Consultation with subject matter specialists.
(a) The Department may, in its discretion, solicit the opinion of subject matter specialists for the purpose of assisting the Department in its determination of whether materials for which export certification or import authentication is sought contain widespread and gross misstatements of fact.
(b) As necessary, the Department may determine eligibility of material for certification or authentication based in part on the opinions obtained from subject matter specialists and the Committee on Attestation.
§ 61.7 Review and appeal procedures.
(a) An applicant may request a formal review of any adverse ruling rendered by the Attestation Officer. Such request for review must be made in writing and received no more than 30 days from the date of the Attestation Officer’s decision.
(b) The request for review must set forth all arguments which the applicant wishes to advance in support of his or her position and any data upon which such argument is based. A copy of the material for which certification or authentication has been denied must accompany the request for review. The request for review should be addressed as follows: Attestation Program Review Board ECA/GCV – Attestation Officer, Department of State, 301 4th Street, SW., Washington, DC 20547.
(c) The Review Board shall render the applicant a written decision, reversing or affirming the ruling of the Attestation Officer, within 30 days from receipt of the request for review. Such decision shall constitute final administrative action.
§ 61.8 Coordination with United States Customs Service.
(a) Nothing in this part shall preclude examination of imported materials pursuant to the Customs laws and regulations of the United States as codified at 19 U.S.C. 1305 and 19 CFR 10.121, or the application of the laws and regulations governing the importation or prohibition against importation of certain materials including seditious or salacious materials as set forth at 19 U.S.C. 1305.
(b) Department authentications of a foreign certificate for entry under HTS Item No. 9817.00.4000 will be reflected by the issuance of an Importation Document. A copy of each Importation Document issued by the Department will be simultaneously furnished the United States Customs Service.
(c) Customs User Fee: Articles delivered by mail, which are eligible for duty-free entry under the regulations in this part are, additionally, not subjected to the standard Customs User Fee normally imposed by the United States Customs Service, provided there has been a timely filing with the appropriate United States Customs Service office of the documentation required by the regulations in this part.
§ 61.9 General information.
General information and application forms may be obtained by writing to the Attestation Office as follows: ECA/GCV – Attestation Officer, Department of State, 301 4th Street, SW., Washington, DC 20547; or calling (202) 475-0221.
PART 62 – EXCHANGE VISITOR PROGRAM
Subpart A – General Provisions
§ 62.1 Purpose.
(a) The regulations set forth in this part implement the Mutual Educational and Cultural Exchange Act of 1961 (the “Act”), as amended, Public Law 87-256, 22 U.S.C. 2451, et seq. (1988). The purpose of the Act is to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchanges. Educational and cultural exchanges assist the Department of State in furthering the foreign policy objectives of the United States. These exchanges are defined by section 102 of the Act, 22 U.S.C. 2452, and section 101(a)(15)(J) of the Immigration and Nationality Act, as amended, 8 U.S.C. 1101(a)(15)(J).
(b) The Secretary of State of the Department of State facilitates activities specified in the Act, in part, by designating public and private entities to act as sponsors of the Exchange Visitor Program. Sponsors may act independently or with the assistance of third parties. The purpose of the Program is to provide foreign nationals with opportunities to participate in educational and cultural programs in the United States and return home to share their experiences, and to encourage Americans to participate in educational and cultural programs in other countries. Exchange visitors enter the United States on a J visa. The regulations set forth in this subpart are applicable to all sponsors.
(c) The Assistant Secretary for Educational and Cultural Affairs of the Department of State may, in his or her sole discretion and to the extent consistent with the authorities described in paragraph (a) of this section and other applicable law, waive or modify any provision of this part with respect to programs that are established pursuant to memoranda of understanding, letters of intent or similar arrangements between the United States and foreign governments. When establishing such a program, the Department will publish a notice in the
§ 62.2 Definitions.
The following definitions apply to this part:
Academic institution. Any publicly or privately operated primary, secondary, or post-secondary institution in the United States or abroad that offers primarily academic programs. For the purpose of these regulations, an institution that offers primarily vocational or technical programs is not an academic institution unless the specific program or programs in which the exchange visitor is to participate or has participated has been determined by the U.S. Department of State on an exceptional basis to be comparable to those offered in academic institutions.
Accompanying spouse and dependents. The alien spouse and/or minor unmarried child(ren), if any, of an exchange visitor who are accompanying or following to join the exchange visitor and who seek to enter or have entered the United States temporarily on non-immigrant J-2 visas or seek to acquire or have acquired such status after admission. For the purpose of these regulations, a minor is a person under the age of 21 years old.
Accredited academic institution. Any academic institution that is duly accredited by the appropriate academic accrediting authority of the U.S. jurisdiction in which such institution is located. In addition, all post-secondary institutions also must be accredited by a nationally recognized accrediting agency or association as recognized by the Secretary of Education.
Act. The Mutual Educational and Cultural Exchange Act of 1961, as amended.
Actual and current U.S. address. The physical, geographic location at which an exchange visitor and accompanying spouse and dependents reside while participating in an exchange program.
Alternate Responsible Officer. An employee or officer of a sponsor who has been nominated by the sponsor and approved by the Department of State to assist the Responsible Officer in carrying out the responsibilities outlined in § 62.11. An Alternate Responsible Officer must be a United States person.
Certificate of Good Standing. A document issued by a state Secretary of State, Secretary of Commonwealth, or other official in the state where the business entity is registered. A Certificate of Good Standing confirms that a corporation, partnership or other legal entity is in existence or authorized to transact business. A Certificate of Good Standing is also known as a Certificate of Authorization or a Certificate of Existence.
Clerical work. Routine administrative work generally performed in an office or office-like setting, such as data entry, filing, typing, mail sorting and distribution, and other general administrative or support tasks.
Consortium. A not-for-profit corporation, partnership, joint venture or other association formed by two or more accredited academic institutions for the purpose of sharing educational resources, conducting research, and/or developing new programs to enrich or expand the opportunities offered by its members. An academic institution in the United States that participates in a consortium is not barred from having separate exchange visitor program designations of its own.
Country of nationality or last legal permanent residence. Either the country of which the exchange visitor is a national at the time status as an exchange visitor is acquired or the last foreign country in which the visitor had a legal permanent residence before acquiring status as an exchange visitor.
Cross-cultural activity. An activity designed to promote exposure and interchange between exchange visitors and Americans so as to increase their mutual understanding of each other’s society, culture, and institutions.
Department of State. The U.S. Department of State.
Designation. The written authorization issued by the Department of State to an exchange visitor program applicant to conduct an exchange visitor program as a sponsor. The term includes the written authorization issued to a current sponsor that applies to continue its designation (i.e., redesignation).
Employee. An individual who provides services or labor for an employer for wages or other remuneration. A third party, as defined in this section, or an independent contractor, as defined in 8 CFR 274a.1(j), is not an employee.
Exchange visitor. A foreign national who has been selected by a sponsor to participate in an exchange visitor program, and who is seeking to enter or has entered the United States temporarily on a non-immigrant J-1 visa or who has obtained J status in the United States based on a Form DS-2019 issued by the sponsor. The term does not include the accompanying spouse and dependents of the exchange visitor.
Exchange Visitor Program. The international exchange program administered by the Department of State to implement the Act by means of educational and cultural exchange programs. When “exchange visitor program” is set forth in lower case, it refers to the individual program of a sponsor that has been designated by the Department of State.
Exchange visitor’s government. The government of the exchange visitor’s country of nationality or last legal permanent residence.
Financed directly. Financed in whole or in part by the U.S. Government or the exchange visitor’s government with funds contributed directly to the exchange visitor in connection with his or her participation in an exchange visitor program.
Form DS-2019, A Certificate of Eligibility for Exchange Visitor (J-Nonimmigrant) Status. A controlled document of the Department of State that a sponsor issues to a potential Exchange Visitor Program participant (J-1) and his or her accompanying spouse and dependents (J-2) as permitted by regulations. This form, together with other necessary Department of State documents, permits the named foreign national, if required, to schedule an interview at a U.S. embassy or consulate to seek to obtain a J visa to enter the United States as an Exchange Visitor Program participant or as an accompanying spouse and dependent.
Form DS-3036, Exchange Visitor Program Application. A controlled document of the Department of State that an organization uses to apply to become a designated sponsor of the Exchange Visitor Program and that a designated sponsor uses to request redesignation or amendment of an existing exchange visitor program.
Form DS-3037, Update of Information on a Sponsor’s Exchange Visitor Program. A controlled document of the Department of State that a sponsor uses to update information on its exchange visitor programs in SEVIS.
Form DS-3097, Annual Report. A controlled document of the Department of State in which a sponsor reports program activity and evaluation on a yearly basis.
Form DS-7002, Training/Internship Placement Plan (T/IPP). A controlled document of the Department of State used in connection only with a Trainee or Intern under 22 CFR § 62.22, or a Student Intern under § 62.23 respectively, to outline an exchange visitor’s program activities.
Full course of study. Full-time enrollment in an academic program of classroom participation and study and/or doctoral thesis research at an accredited academic institution as follows:
(1) Secondary school students must satisfy the attendance and course requirements of the state in which the school they attend is located; and
(2) College and university students must register for and complete a full course of study, as defined by the accredited academic institution in which the student is registered, unless exempted in accordance with § 62.23(e).
Graduate medical education or training. Participation in a program in which a foreign medical school graduate will receive graduate medical education or training, which generally consists of a residency or fellowship program involving health care services to patients, but does not include programs involving observation, consultation, teaching or research in which there is no or only incidental patient care. This program may consist of a medical specialty, a directly related medical subspecialty, or both.
Home-country physical presence requirement. The requirement that an exchange visitor, and any accompanying spouse and dependents, who are within the purview of section 212(e) of the Immigration and Nationality Act, as amended, or Public Law 94-484 (substantially quoted in 22 CFR 41.63), must reside and be physically present in the country of nationality or last legal permanent residence for an aggregate of at least two years following departure from the United States before the exchange visitor is eligible to apply for an immigrant visa or permanent residence, a non-immigrant K visa as the fiancé(e) of a U.S. citizen, a non-immigrant H visa as a temporary worker or trainee, or a non-immigrant L visa as an intracompany transferee, or a non-immigrant H or L visa as the spouse or minor child of a person who has been granted status in H or L non-immigrant classification as a temporary worker or trainee or an intracompany transferee.
Host organization. A third party in the United States that conducts training and/or internship programs on behalf of a designated sponsor pursuant to an executed written agreement between the two parties.
Internship program. A structured and guided work-based learning program for an Intern as set forth in an individualized Training/Internship Placement Plan (Form DS-7002) that reinforces an intern’s academic study; recognizes the need for work-based experience; provides on-the-job exposure to American techniques, methodologies, and technologies; and enhances the Intern’s knowledge of American culture and society.
J visa. A non-immigrant visa issued pursuant to 8 U.S.C. 1101(a)(15)(J). A J-1 visa is issued to an exchange visitor. A J-2 visa is issued to the exchange visitor’s accompanying spouse and dependents, if qualified under § 214b of the Immigration and Nationality Act, as amended.
Management review. A program-specific management audit in a format approved by the Department of State that is conducted by an independent auditor who is not an employee or third party contractor of the sponsor, to identify weaknesses in operating procedures in the conduct of an organization’s business and in meeting regulatory requirements in the administration of a sponsor’s exchange visitor program.
Office of Designation. The Department of State, Bureau of Educational and Cultural Affairs office assigned to administer designations of sponsors.
Office of Exchange Coordination and Compliance. The Department of State, Bureau of Educational and Cultural Affairs office assigned to oversee sponsor compliance with 22 CFR part 62 and, as appropriate, impose sanctions.
Office of Private Sector Exchange Administration. The Department of State, Bureau of Educational and Cultural Affairs office assigned to monitor administration of each sponsor’s exchange visitor program.
On-the-job training. An individual’s observation of and participation in given tasks demonstrated by experienced workers for the purpose of acquiring competency in such tasks.
Prescribed course of study. A non-degree academic program with a specific educational objective. Such course of study may include intensive English language training, classroom instruction, research projects, and/or academic training to the extent permitted in § 62.23.
Reciprocity. The participation of a U.S. citizen or U.S. national in an educational and cultural program in a foreign country in exchange for the participation of a foreign national in the Exchange Visitor Program. Where used herein, “reciprocity” will be interpreted broadly; unless otherwise specified, reciprocity does not require a one-for-one exchange or that exchange visitors be engaged in the same activity.
Responsible Officer. An employee or officer of a sponsor who has been nominated by the sponsor, and approved by the Department of State, to carry out the duties outlined in § 62.11. A Responsible Officer must be a citizen of the United States or a lawful permanent resident of the United States.
Secretary of State. The Secretary of State or an employee of the U.S. Department of State acting under a delegation of authority from the Secretary of State.
SEVIS (Student and Exchange Visitor Information System). The statutorily mandated system designed to collect information on non-immigrant students (F and M visas), exchange visitors (J visas), and their spouses and dependents (F-2, M-2, and J-2 visas). SEVIS enables schools and program sponsors to transmit information and event notifications electronically, via the Internet, to the Department of Homeland Security and the Department of State throughout a student’s or exchange visitor’s stay in the United States.
Site of activity. The physical, geographic location(s) where an exchange visitor participates in his or her exchange program.
Sponsor. A legal entity designated by the Secretary of State to conduct an exchange visitor program.
Staffing/employment agency. A U.S. business that hires individuals for the express purpose of supplying workers to other businesses. Typically, the other businesses where workers are placed pay an hourly fee per employee to the staffing/employment agency, of which the worker receives a percentage.
Student internship program. A structured and guided work-based learning program for a post-secondary student intern as set forth in an individualized Training/Internship Placement Plan (Form DS-7002) that partially or fully fulfills a student’s post-secondary academic degree requirements; recognizes the need for work-based experience; provides on-the-job exposure to American techniques, methodologies, and technologies; and enhances the student intern’s knowledge of American culture and society.
Third party. A person or legal entity with whom a sponsor has executed a written agreement for the person or entity to act on behalf of a sponsor in the conduct of the sponsor’s exchange visitor program. All entities that act on behalf of the sponsor in the conduct of the sponsor’s exchange visitor program must execute written agreements with the sponsor that outline the full relationship between the entity and the sponsor on all matters involving the administration of the exchange visitor program. A sponsor’s use of a third party does not relieve the sponsor of its obligations to comply, and to ensure third party compliance, with the provisions of this part. Failure by any third party to comply with the regulations set forth in this part or with any additional terms and conditions governing administration of the Exchange Visitor Program that the Department of State may from time to time impose will be imputed to the sponsor. Sponsors are required to ensure that third parties know and comply with all applicable provisions of these regulations.
Training program. A structured and guided work-based learning program for a trainee as set forth in an individualized Training/Internship Placement Plan (Form DS-7002), that develops new and advanced skills in a trainee’s occupational field through exposure to American techniques, methodologies, and technologies; and enhances a trainee’s understanding of American culture and society.
United States person (individual). A person who is born within or is a national of the United States or any of its territories or outlying possessions. A U.S. person is a citizen or an individual who has been lawfully admitted for permanent residence, within the meaning of section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101).
United States Person (legal entity).
(1) A general or limited partnership created or organized under the laws of the United States, or of any state, the District of Columbia, or any territory or outlying possession of the United States, of which a majority of the partners are United States persons:
(i) Which has its principal place of business in the United States; and
(ii) In instances where the partnership is additionally governed by a Board, the majority of whose officers are United States persons.
(2) A for-profit corporation, association, or other legal entity created or organized under the laws of the United States, or of any state, the District of Columbia, or a territory or outlying possession of the United States, whose principal place of business is located in the United States, and
(i) Whose shares or voting interests are publicly traded on a U.S. stock exchange; or
(ii) A majority of whose officers, a majority of whose shareholders, and a majority of whose members of its Board of Directors are United States persons and collectively hold a majority of the shares or stock (i.e., the de jure controlling interest); or
(3) A non-profit corporation, association, or other legal entity created or organized under the laws of the United States, or any state, the District of Columbia, or any territory or outlying possession of the United States; and
(i) Whose principal place of business is located in the United States; and
(ii) A majority of whose officers and a majority of whose members of its Board of Directors, Board of Trustees or other like body vested with its management are United States persons; or
(4) An accredited college, university, or other post-secondary academic institution in the United States created or organized under the laws of the United States, or of any state, county, municipality, or other political subdivision thereof, the District of Columbia, or of any territory or outlying possession of the United States; or
(5) An agency of the United States, or of any state or local government, the District of Columbia, or any territory or outlying possession of the United States.
Validation. The process by which a Responsible Officer or Alternate Responsible Officer updates the SEVIS record of an exchange visitor to show he or she has entered the United States, and that the exchange visitor reported to his or her sponsor and is participating in the exchange visitor program at the site of activity identified on his or her Form DS-2019.
§ 62.3 Sponsor eligibility.
(a) The following types of entities are eligible to apply for designation as a sponsor of an exchange visitor program:
(1) U.S. local, state, and federal government agencies to include the District of Columbia; and government agencies of any U.S. territories and outlying possessions;
(2) International agencies or organizations of which the United States is a member and that have an office in the United States; or
(3) Reputable organizations that are United States Persons.
(b) To be eligible for designation as a sponsor, an entity is required to:
(1) Demonstrate, to the Department of State’s satisfaction, its ability to comply and remain in continual compliance with all applicable provisions of this part;
(2) Meet at all times its financial obligations and responsibilities attendant to successful sponsorship of its exchange visitor program; and
(3) Demonstrate that the organization or its proposed Responsible Officer has no fewer than three years’ experience in international exchange.
§ 62.4 Categories of participant eligibility.
Sponsors select foreign nationals to participate in exchange visitor program(s) in the United States. Participation is limited to foreign nationals who meet the following criteria for each of the following categories:
(a) Student. A foreign national who is:
(1) Studying in the United States and:
(i) Pursuing a full course of study at a secondary accredited academic institution;
(ii) Pursuing a full course of study leading to or culminating in the award of a U.S. degree from a post-secondary accredited academic institution; or
(iii) Engaged full-time in a prescribed course of study of up to 24 months (non-degree) duration conducted by:
(A) A post-secondary accredited academic institution; or
(B) An institute approved by or acceptable to the post-secondary accredited academic institution, where the student is to be enrolled upon completion of the non-degree program;
(2) Engaged in academic training as permitted in § 62.23(f);
(3) Engaged in English language training at:
(i) A post-secondary accredited academic institution, or
(ii) An institute approved by or acceptable to the post-secondary accredited academic institution where the college or university student is to be enrolled upon completion of the language training; or
(4) Engaged full-time in a student internship program conducted by a post-secondary accredited academic institution.
(b) Short-term scholar. A foreign national who is a professor, research scholar, or person with similar education or accomplishments who enters the United States for a short-term visit for the purpose of lecturing, observing, consulting, training, or demonstrating special skills at research institutions, museums, libraries, post-secondary accredited academic institutions, or similar types of institutions.
(c) Trainee. A foreign national participating in a structured and guided work-based training program in his or her specific occupational field (in an occupational category for which a sponsor has obtained designation) who has either:
(1) A degree or professional certificate from a foreign ministerially-recognized post-secondary academic institution and at least one year of prior related work experience in his or her occupational field acquired outside the United States; or
(2) Five years of work experience in his or her occupational field acquired outside the United States.
(d) Teacher. A foreign national with the equivalent of a U.S. Bachelor’s degree in either education or the subject matter (or related subjects) he or she intends to teach and a minimum of the equivalent of two years of post-degree full-time teaching experience, who is employed as a teacher at the time of application for the program, for the purpose of teaching full-time in a primary or secondary accredited academic institution.
(e) Professor. A foreign national whose primary purpose is teaching, lecturing, observing, or consulting at post-secondary accredited academic institutions, museums, libraries, or similar types of institutions. A professor also may conduct research where authorized by the sponsor.
(f) Research scholar. A foreign national whose primary purpose is conducting research, observing, or consulting in connection with a research project at research institutions, corporate research facilities, museums, libraries, post-secondary accredited academic institutions, or similar types of institutions. A research scholar also may teach or lecture where authorized by the sponsor.
(g) Specialist. A foreign national who is an expert in a field of specialized knowledge or skills who enters the United States for the purpose of observing, consulting, or demonstrating special knowledge or skills.
(h) Other person of similar description. A foreign national of description similar to those set forth in paragraphs (a) through (g) of this section coming to the United States as a participant in an exchange visitor program designated by the Department of State under this category, for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, or receiving training. The programs designated by the Department of State in this category consist of:
(1) Alien physician. A foreign national who is a graduate of a school of medicine who comes to the United States under a program in which he or she will receive graduate medical education or training conducted by accredited U.S. schools of medicine or scientific institutions.
(2) International visitor. A foreign national who is a recognized or potential leader, selected by the Department of State for the purpose of consulting, observing, conducting research, training, or demonstrating special skills in the United States.
(3) Government visitor. A foreign national who is an influential or distinguished person, selected by a U.S. federal, state, or local government agency for the purpose of consulting, observing, training, or demonstrating special skills in the United States.
(4) Camp counselor. A foreign national selected to be a counselor in a summer camp in the United States (e.g., during the U.S. summer months).
(5) Au pair. A foreign national who comes to the United States for the purpose of residing with an American host family and participating directly in their home life, while providing limited childcare services, and fulfilling an educational requirement.
(6) Summer Work and Travel. A foreign national who is a bona fide foreign post-secondary student, who at the time of application is enrolled in and actively pursuing a degree or a full-time course of study at a foreign ministerially-recognized post-secondary academic institution and whose purpose is work and travel in the United States for up to four months during his or her break between academic years.
(7) Intern. A foreign national participating in a structured and guided work-based internship program in his or her specific academic field and who either:
(i) Is currently enrolled full-time in and actively pursuing studies at a foreign ministerially-recognized degree- or certificate-granting post-secondary academic institution outside the United States, or
(ii) Graduated from such an institution no more than 12 months prior to the exchange visitor program begin date reflected on Form DS-2019.
§ 62.5 Designation application procedure.
(a) An entity meeting the eligibility requirements set forth in § 62.3 may apply to the Department of State for designation as an Exchange Visitor Program sponsor. An applicant must first complete and submit Form DS-3036 in SEVIS. The complete application must consist of:
(1) A completed copy of Form DS-3036 signed by the applicant’s Chief Executive Officer, President, or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization’s governing documents);
(2) Required supporting documentation and certifications as set forth in paragraph (c); and
(3) Confirmation of payment of the required non-refundable application fee through pay.gov as set forth in § 62.17.
(b) A complete application must set forth, in detail, the applicant’s proposed exchange program activity and must demonstrate, to the Department of State’s satisfaction, the applicant’s ability to comply and remain in continual compliance with all the provisions of this part, and, in particular, to meet the sponsor eligibility requirements set forth in § 62.3 and the general obligations of sponsors set forth in § 62.9.
(c) An application must be accompanied by the following supporting documentation and certifications, as relevant:
(1) Evidence of sponsor eligibility as set forth in § 62.3(a), including evidence of legal status (e.g., charter, proof of incorporation, by laws, partnership agreement);
(2) Evidence of experience in operating a successful business, including a minimum of three years of experience in international exchange by the organization or by the proposed Responsible Officer;
(3) Evidence of the applicant’s ability to meet at all times its financial obligations and responsibilities attendant to successful sponsorship of its exchange visitor program, and evidence that it can comply with § 62.9(e) and provide any supplemental or explanatory financial information the Department of State may request. In addition:
(i) An established entity must present a current audit report with audit notes prepared by an independent certified public accounting firm.
(ii) A newly formed entity must present a compilation (i.e., a balance sheet, statement of cash flows and all disclosures, revenues, expenditures, and notes to financial statements) prepared by an independent certified public accounting firm demonstrating that the entity has been capitalized with sufficient funds to cover general operating expenses and costs associated with an exchange program.
(4) A current Certificate of Good Standing (see § 62.2);
(5) An Employer Identification Number (EIN), which specifies the date of issuance;
(6) Evidence of current accreditation if the applicant is a secondary or post-secondary academic institution;
(7) Evidence of current licensure, if required by local, state, or federal law, to carry out the activity for which the applicant is seeking designation;
(8) A statement signed by the Chief Executive Officer, President, or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization’s governing documents), certifying that:
(i) The applicant is a United States Person as defined in § 62.2;
(ii) The proposed Responsible Officer and all proposed Alternate Responsible Officers are United States citizens or lawful permanent residents of the United States;
(iii) The sponsor has completed a criminal background check on the potential Responsible Officer and all Alternate Responsible Officers, and has determined their suitability for these positions; the criminal background checks must be no older than four years at any time for re-designated sponsors and must be newly conducted as part of the designation application for new sponsors and the redesignation application for sponsors designated for only one year; and
(iv) The Responsible Officer will be provided sufficient staff and resources to fulfill his or her duties and obligations on behalf of the applicant;
(9) A completed SEVIS-generated Citizenship Certification for the proposed Responsible Officer and all proposed Alternate Responsible Officer(s) along with evidence that they are citizens of the United States or lawful permanent residents (e.g., copy of passport, birth certificate, green card); and
(10) Such additional information or documentation that the Department of State may deem necessary to evaluate the application. In addition, the Department may decide, in its discretion, to conduct a pre-designation site visit of a first-time applicant.
§ 62.6 Designation.
(a) Upon its favorable determination that an applicant meets all statutory and regulatory requirements, the Department of State may, in its sole discretion, designate the applicant as an Exchange Visitor Program sponsor.
(b) Initial designations are effective for one or two years at the sole discretion of the Department of State.
(c) Designation will confer upon a sponsor the authority to engage in one or more activities specified in § 62.4. A sponsor may engage only in the activity or activities specifically authorized in its written letter of designation.
(d) The Department of State may, in its sole discretion, require a sponsor to secure a payment bond in favor of the Department of State guaranteeing the sponsor’s obligations hereunder.
(e) Designations are not transferable or assignable.
§ 62.7 Redesignation.
(a) Sponsors must file for redesignation no more than six months and no fewer than three months before the designation expiration date as set forth in the sponsor’s letter of designation or its most recent letter of redesignation.
(b) A sponsor seeking redesignation as an Exchange Visitor Program sponsor must first complete and submit Form DS-3036 in SEVIS. The complete application must consist of:
(1) A completed copy of Form DS-3036, signed by the sponsor’s Chief Financial Officer, President or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization’s governing documents);
(2) Required supporting documentation and certifications as set forth in paragraph (c); and
(3) Confirmation of payment of the required non-refundable application fee through pay.gov as set forth in § 62.17.
(c) The complete application must include the following supporting documentation and certifications:
(1) A copy of the most recent year-end financial statements;
(2) A copy of the most recent letter of accreditation if the sponsor is a secondary or post-secondary academic institution;
(3) A list of the names, addresses and citizenship or legal permanent resident status of the current members of its Board of Directors or the Board of Trustees or other like body, vested with the management of the organization or partnership, and/or the percentage of stocks/shares held, as applicable;
(4) For a non-profit organization, a signed copy of the sponsor’s most recent Form 990 filed with the Internal Revenue Service;
(5) A statement signed by the Chief Executive Officer, President, or other executive with legal authority to make commitments on behalf of the sponsor (as identified in the organization’s governing documents) certifying that the sponsor has completed timely criminal background checks since the date of the last designation or redesignation letter on the Responsible Officer and all Alternate Responsible Officers and has determined their suitability for these positions; and
(6) Such additional information or documentation that the Department of State may deem necessary to evaluate the application.
(d) Upon its favorable determination that a sponsor meets all statutory and regulatory requirements, the Department of State may, in its sole discretion, redesignate the organization as an Exchange Visitor Program sponsor for one or two years. A sponsor seeking re-designation may continue to operate its program(s) until such time as the Department of State notifies it of a decision to approve, amend or terminate its designation.
§ 62.8 General program requirements.
(a) Size of program. A sponsor, other than a federal government agency, must have no fewer than five actively participating exchange visitors during the annual reporting cycle (e.g., academic, calendar or fiscal year), as stated in its letter of designation or redesignation. The Department of State may, in its sole discretion, waive this requirement.
(b) Minimum duration of program. A sponsor, other than a federal government agency, must provide each exchange visitor, except those sponsored in the short-term scholar category, with a minimum period of participation in the United States of no less than three weeks.
(c) Reciprocity. In conducting its exchange visitor program, sponsors must make a good faith effort to develop and implement, to the fullest extent possible, reciprocal exchanges of persons.
(d) Cross-cultural activities. In addition to category specific requirements, sponsors must:
(1) Offer or make available to exchange visitors and the accompanying spouses and dependents, if any, a variety of appropriate cross-cultural activities. The extent and type of the cross-cultural activities will be determined by the needs and interests of the particular category of exchange visitor. Sponsors will be responsible for determining the appropriate types and numbers of such cross-cultural programs, unless otherwise specified by the Department. The Department of State encourages sponsors to give their exchange visitors the broadest exposure to American society, culture and institutions; and
(2) Encourage exchange visitors to participate voluntarily in activities that are for the purpose of sharing the language, culture, or history of their home country with Americans, provided such activities do not delay the completion of the exchange visitors’ program.
§ 62.9 General obligations of sponsors.
(a) Adherence to Department of State regulations. Sponsors are required to adhere to all regulations set forth in this part.
(b) Legal status. A sponsor must maintain the legal status it had when it was designated. A sponsor’s change in legal status (e.g., from partnership to corporation, non-profit to for-profit) requires the submission of a new application for designation of the successor legal entity within 45 days of the change in legal status.
(c) Accreditation and licensure. A sponsor must remain in compliance with all local, state, and federal laws, and professional requirements necessary to carry out the activities for which it is designated, including accreditation and licensure, if applicable.
(d) Representations and disclosures. Sponsors must:
(1) Provide accurate, complete, and timely information, to the extent lawfully permitted, to the Department of State and the Department of Homeland Security regarding their exchange visitor program(s), exchange visitors, and accompanying spouses and dependents (if any);
(2) Provide accurate information to the public when advertising their exchange visitor program(s) or responding to public inquiries;
(3) Provide accurate program information and materials to prospective exchange visitors, host organizations, and host employers, if applicable, at the time of recruitment and before exchange visitors enter into agreements and/or pay non-refundable fees. This information must clearly explain program activities and terms and conditions of program, including the terms and conditions of any employment activities (job duties, number of work hours, wages and compensation, and any typical deductions for housing and transportation), have itemized list of all fees charged to the exchange visitor (i.e., fees paid to the sponsor or a third party, including the host employer), insurance costs, other typical costs, conditions, and restrictions of the exchange visitor program(s), and the type, duration, nature and importance of the cultural components of the program. Program recruitment information and materials also must make clear to prospective exchange visitors in the exchange categories with a work component that their stipend or wages might not cover all of their expenses and that they should bring additional personal funds.
(4) Not use the program number(s) assigned by the Department of State at the time of designation on any advertising materials or publications, including sponsor Web sites; and
(5) Not represent that its exchange visitor program is endorsed, sponsored, or supported by the Department of State or the U.S. Government, except for U.S. Government sponsors or exchange visitor programs financed directly by the U.S. Government to promote international educational exchanges. A sponsor may, however, represent that it is designated by the Department of State as a sponsor of an exchange visitor program.
(e) Financial responsibility. (1) Sponsors must maintain the financial capability to meet at all times their financial obligations and responsibilities attendant to successful sponsorship of their exchange visitor program.
(2) The Department of State may require non-government sponsors to provide evidence satisfactory to the Department of State that funds necessary to fulfill all obligations and responsibilities attendant to sponsorship of their exchange visitor programs are readily available and in the sponsor’s control, including such supplementary or explanatory financial information as the Department of State may deem appropriate, such as, for example, audited financial statements.
(3) The Department of State may require a non-government sponsor to secure payment bonds in favor of the Department of State guaranteeing all financial obligations arising from its exchange visitor program when the Department has reasonable doubt about the sponsor’s ability to meet its program and other financial obligations.
(f) Staffing and support services. Sponsors must ensure that:
(1) Adequate staffing and sufficient support services are provided to administer their exchange visitor program; and
(2) Their employees, officers, agents, third parties, volunteers or other individuals or entities associated with the administration of their exchange visitor program are adequately qualified, appropriately trained, and comply with the Exchange Visitor Program regulations and immigration laws pertaining to the administration of their exchange visitor program(s).
(g) Appointment of Responsible Officers and Alternate Responsible Officers. (1) Sponsors must appoint and maintain a Responsible Officer and between one and ten Alternate Responsible Officers to assist the Responsible Officer in performing the duties set forth in § 62.11. Upon written sponsor request, the Department of State may, in its sole discretion, permit a sponsor to appoint more than ten Alternate Responsible Officers. A sponsor redesignated for two years must ensure that the proposed Responsible Officer and Alternate Responsible Officer(s) have undergone a criminal background check within the past four years to determine their suitability for these positions. Responsible Officers and Alternate Responsible Officers must be U.S. persons.
(2) Responsible Officers and Alternate Responsible Officers must be employees or officers of the sponsor. Upon written sponsor request, the Department of State may, in its sole discretion, authorize the appointment of an individual who is not an employee or officer to serve as an Alternate Responsible Officer.
(3) In the event of the departure of a Responsible Officer or Alternate Responsible Officer, the sponsor must file a request in SEVIS for the approval of a replacement and forward the required documentation to the Department of State within ten calendar days from the date of the Responsible Officer’s or Alternate Responsible Officer’s departure.
(4) Requests to replace the Responsible Officer or add an Alternate Responsible Officer must be submitted in SEVIS, and a signed Form DS-3037 must be either mailed or emailed to the Department of State with the required completed Citizenship Certification, along with certification that the individual has undergone a criminal background check conducted at the time of such Certification.
(5) The Department of State reserves the right to deny the appointment of a Responsible Officer or an Alternate Responsible Officer.
§ 62.10 Program administration.
Sponsors are responsible for the effective administration of their exchange visitor program(s). These responsibilities include:
(a) Selection of exchange visitors. Sponsors must establish and utilize a method to screen and select prospective exchange visitors to ensure that they are eligible for program participation, and that:
(1) The program is suitable to the exchange visitor’s background, needs, and experience; and
(2) The exchange visitor possesses sufficient proficiency in the English language, as determined by an objective measurement of English language proficiency, successfully to participate in his or her program and to function on a day-to-day basis. A sponsor must verify an applicant’s English language proficiency through a recognized English language test, by signed documentation from an academic institution or English language school, or through a documented interview conducted by the sponsor either in-person or by videoconferencing, or by telephone if videoconferencing is not a viable option.
(b) Pre-arrival information. At the pre-arrival stage, sponsors must provide exchange visitors clear information and materials on, but not limited to, the following topics: Program activities, cultural goals and components of the program, employment information and terms and conditions of employment (including employer name and address, position duration, job duties, number of work hours, wages, other compensation and benefits, deductions from wages, including those taken for housing and transportation), insurance costs, and other conditions and restrictions of their exchange visitor. In addition, sponsors must provide clear information and materials on:
(1) The purpose of the Exchange Visitor Program;
(2) The home-country physical presence requirement;
(3) Travel to and entry into the United States (e.g., procedures to be followed by exchange visitors and accompanying spouses and dependents in paying SEVIS fees and obtaining visas for entry to the United States, including the information and documentation needed for the interview; travel arrangements to the United States, and what to expect at the port of entry, including the necessity of having and presenting travel documents at the port of entry);
(4) Housing, including specific information on what housing is provided by the program or otherwise available and the expected cost to the exchange visitor;
(5) An itemized list of all fees to be paid by a potential exchange visitor (i.e., fees paid to the sponsor or a third party);
(6) Description and amount of other costs that the exchange visitor will likely incur (e.g., insurance, living expenses, transportation expenses) while in the United States;
(7) Health care and insurance description, costs, and requirements for exchange visitors and their accompanying spouse and dependents, as applicable;
(8) Arrival notification requirements (e.g., procedures that exchange visitors, spouses and dependents are to follow upon entry into the United States in reporting their arrival to the sponsor and reporting to the location of their program); and
(9) Other information that will assist exchange visitors to prepare for their stay in the United States (e.g., how and when to apply for a social security number, if applicable; how to apply for a driver’s license; how to open a bank account; employee rights and laws, including workman’s compensation; and how to remain in lawful non-immigrant status.
(c) Orientation. A sponsor must offer and record participation in an appropriate orientation for all exchange visitors. Sponsors are encouraged to provide orientation for the exchange visitor’s accompanying spouse and dependents, especially for those exchange visitors who are expected to be in the United States for more than one year. Orientation must include, but is not limited to, information concerning:
(1) Life and customs in the United States;
(2) Local community resources (e.g., public transportation, medical centers, schools, libraries, recreation centers, and banks), to the fullest extent possible;
(3) Available healthcare, emergency assistance, and health insurance coverage;
(4) A description of the exchange visitor program in which the exchange visitor is participating such as information on the length and location of the program; a summary of the significant components of the program; information on any payment (i.e., stipend or wage) an exchange visitor will receive; and deductions from wages, including for housing and transportation;
(5) Sponsor rules that exchange visitors are required to follow while participating in their exchange visitor program;
(6) Name and address of the sponsor and the name, email address, and telephone number of the Responsible Officer and Alternate Responsible Officer(s);
(7) The Office of Designation’s address, telephone number, facsimile number, Web site and email address, and a copy of the Exchange Visitor Program brochure or other Department of State materials as appropriate or required;
(8) Wilberforce Pamphlet on the Rights and Protections for Temporary Workers; and
(9) The requirement that an exchange visitor must report to the sponsor or sponsor designee within ten calendar days any changes in his or her telephone number, email address, actual and current U.S. address (i.e., physical residence), and site of activity (if the exchange visitor is permitted to make such change without prior sponsor authorization).
(d) Monitoring of exchange visitors. Exchange visitors’ participation in their exchange program must be monitored by employees of the sponsor. Monitoring activities must not include any retaliation or discrimination against exchange visitors who make adverse comments related to the program. No sponsor or employee of a sponsor may threaten program termination, remove from the program, ban from the program, adversely annotate an exchange visitor’s SEVIS record, or otherwise retaliate against an exchange visitor solely because he/she has filed a complaint; instituted or caused to be instituted any proceeding; testified or is about to testify; consulted with an advocacy organization, community organization, legal assistance program or attorney about a grievance or other work-related legal matter; or exercised or asserted on behalf of himself/herself any right or protection. Sponsors must:
(1) Ensure that the activities in which exchange visitors are engaged are consistent with the category and activity listed on their Forms DS-2019;
(2) Monitor the physical location (site of activity), and the progress and welfare of exchange visitors to the extent appropriate for the category;
(3) Require that exchange visitors report to the sponsor within ten calendar days any changes in their telephone numbers, email addresses, actual and current U.S. addresses (i.e., physical residence), and site(s) of activity (if the exchange visitor is permitted to make such change without prior sponsor authorization);
(4) Report in SEVIS within ten business days of notification by an exchange visitor any change in the exchange visitor’s actual and current U.S. address, telephone number, email address, and/or primary site of activity; and
(5) Report the email address for each accompanying spouse and dependent.
(e) Requests by the Department of State. Sponsors must, to the extent lawfully permitted, furnish the Department of State within the Department-requested timeframe all information, reports, documents, books, files, and other records or information requested by the Department of State on all matters related to their exchange visitor program. Sponsors must include sponsor’s program number on all responses.
(f) Inquiries and investigations. Sponsors must cooperate with any inquiry or investigation that may be undertaken by the Department of State or the Department of Homeland Security.
(g) Retention of records. Sponsors must retain all records related to their exchange visitor program and exchange visitors (to include accompanying spouse and dependents, if any) for a minimum of three years following the completion of each exchange visitor program.
§ 62.11 Duties of Responsible Officers and Alternate Responsible Officers.
Responsible Officers must train and supervise Alternate Responsible Officers and ensure that these officials are in compliance with the Exchange Visitor Program regulations. Responsible Officers and Alternate Responsible Officers must:
(a) Be thoroughly familiar with the Exchange Visitor Program regulations, relevant immigration laws, and all federal and state regulations and laws pertaining to the administration of their exchange visitor program(s), including the Department of State’s and the Department of Homeland Security’s policies, manuals, instructions, and guidance on SEVIS and all other operations relevant to the Exchange Visitor Program; if Responsible Officers and Alternate Responsible Officers work with programs with an employment component, they also must have a detailed knowledge of federal, state, and local laws pertaining to employment, including the Fair Labor Standards Act;
(b) Monitor that the exchange visitor obtains sufficient advice and assistance to facilitate the successful completion of his or her exchange visitor program;
(c) Conduct all official communications relating to their sponsor’s exchange visitor program with the Department of State and the Department of Homeland Security. A sponsor must include its exchange visitor program number on all correspondence submitted to the Department of State and to the Department of Homeland Security;
(d) Monitor to ensure that that sponsor spam filters do not block receipt of SEVIS or Department of State and Department of Homeland Security notices; and
(e) Control and issue Forms DS-2019 as set forth in § 62.12.
§ 62.12 Control of Forms DS-2019.
(a) Issuance of Forms DS-2019. Sponsors must:
(1) Grant access only to Responsible Officers and Alternate Responsible Officers and ensure that they have access to and use SEVIS to update required information;
(2) Ensure that Responsible Officers and Alternate Responsible Officers input into SEVIS accurate, current, and updated information in accordance with these regulations; and
(3) Issue Forms DS-2019 only for the following authorized purposes:
(i) To facilitate the initial entry of the exchange visitor and accompanying spouse and dependents, if any, into the United States;
(ii) To extend the duration of participation of an exchange visitor, when permitted by the regulations and authorized by the Department of State;
(iii) To facilitate program transfers, when permitted by the regulations and/or authorized in writing by the Department of State;
(iv) To replace lost, stolen, or damaged Forms DS-2019;
(v) To facilitate the re-entry into the United States of an exchange visitor and accompanying spouse and dependents, if any, who travel outside the United States during the exchange visitor’s program;
(vi) To facilitate a change of category, when requested in SEVIS and authorized by the Department of State;
(vii) To update information when significant changes take place in regard to the exchange visitor’s program (e.g., a substantial change in funding, a change in the primary site of activity or a change in actual and current U.S. address);
(viii) To facilitate the correction of a minor or technical infraction; or
(ix) To facilitate a “reinstatement” or a “reinstatement update SEVIS status” when permitted by the Department of State.
(b) Verification. (1) Prior to issuing Forms DS-2019, sponsors must verify that each prospective exchange visitor:
(i) Is eligible and qualified for, and accepted into, the program in which he or she will participate;
(ii) Possesses adequate financial resources to participate in and complete his or her exchange visitor program; and
(iii) Possesses adequate financial resources to support an accompanying spouse and dependents, if any.
(2) Sponsors must ensure that:
(i) Only Responsible Officers or Alternate Responsible Officers who are physically present in the United States or in a U.S. territory may print and sign Forms DS-2019; and
(ii) Only the Responsible Officer or the Alternate Responsible Officer, whose name is printed on the Form DS-2019, is permitted to sign the document. The Form DS-2019 must be signed in blue ink to denote that it is the original document.
(c) Distribution of Forms DS-2019. Sponsors must ensure that completed Forms DS-2019 are distributed directly to the exchange visitor and accompanying spouse and dependents, if any, or to an individual designated by the exchange visitor only via the sponsor’s employees, officers, or third parties in the administration of its exchange visitor program.
(d) Allotment requests. (1) Annual Form DS-2019 allotment. Sponsors must submit an electronic request via SEVIS to the Department of State for an annual allotment of Forms DS-2019 based on the annual reporting cycle (e.g., academic, calendar or fiscal year) stated in their letter of designation or redesignation. Sponsors should allow up to four weeks for the processing of allotment requests. The Department of State has the sole discretion to determine the number of Forms DS-2019 to be issued to a sponsor.
(2) Expansion of Program. A request for program expansion must include information such as, but not limited to, the source of program growth, staff increases, confirmation of adequately trained employees, noted programmatic successes, current financial information, additional overseas affiliates, additional third party entities, explanations of how the sponsor will accommodate the anticipated program growth, and any other information requested by the Department. The Department of State will take into consideration the current size of a sponsor’s program and the projected expansion of the program in the coming 12 months and may consult with the Responsible Officer and/or Alternate Responsible Officer prior to determining the number of Forms DS-2019 to issue to a sponsor.
(e) Safeguards and controls. (1) Responsible Officers and Alternate Responsible Officers must secure their SEVIS logon Identification Numbers (IDs) and passwords at all times (i.e., not share IDs and passwords with any other person or permit access to and use of SEVIS by any other person).
(2) Sponsors, their employees, officers, agents, or other third parties acting on behalf of the sponsor, may not forward to any unauthorized party (via facsimile or other electronic means) copies or Portable Document Formats (PDFs) of signed or unsigned Forms DS-2019. However, sponsors must forward such copies and/or PDFs to the Department of State or the Department of Homeland Security upon request.
(3) Sponsors must use the reprint function in SEVIS in the event the exchange visitor’s Form DS-2019 has been lost or stolen.
(4) Sponsors must destroy any damaged and/or unusable Form DS-2019 on the sponsor’s premises after making a record of such forms (e.g., forms with errors or forms damaged by a printer).
§ 62.13 Notification requirements.
(a) Valid program status of exchange visitor. Sponsors must notify the Department of State via SEVIS of the following:
(1) Validation of program participation. Sponsors must promptly validate an exchange visitor’s participation in their program. This will change the status of the exchange visitor’s SEVIS record from “Initial” to “Active.” SEVIS records with program durations (e.g., the period between the “Program Begin Date” and “Program End Date”) of 30 days or more must be validated within 30 days following the “Program Begin Date” identified in SEVIS. SEVIS records with program durations that are less than 30 days must be validated prior to the “Program End Date” reflected in SEVIS. As part of the validation process, sponsors may amend the program begin date and must update the SEVIS record to reflect the actual and current U.S. address and site of activity in SEVIS. The status of SEVIS records that are not validated according to this schedule will automatically change to “Invalid” or “No Show”. Accompanying spouses and dependents’ SEVIS records are automatically validated upon validation of the exchange visitors’ SEVIS records.
(2) Failure of an exchange visitor to begin program. Sponsors must report in SEVIS, no later than 30 calendar days after the “Program Begin Date” listed in SEVIS, the failure of an exchange visitor to report to his or her sponsor upon entry in the United States (i.e., failure of exchange visitor to begin an exchange visitor program as scheduled). This will change the status of the exchange visitor’s SEVIS record from “Initial” to “No Show.”
(3) End of an exchange visitor’s program. Sponsors must report in SEVIS any withdrawal from or early completion of an exchange visitor’s program that occurs prior to the “Program End Date” listed in SEVIS on the exchange visitor’s Form DS-2019. Sponsors must not alter the “Program End Date” field, but should enter the date of program completion in the “Effective Date of Completion” field. This will change the status of the exchange visitor’s SEVIS record from “Active” to “Inactive.” Such notification in SEVIS ends a sponsor’s programmatic obligations to the exchange visitor and/or his or her accompanying spouse and dependents.
(4) Accompanying spouse and dependent records. Sponsors must report in SEVIS if accompanying spouses and/or dependents depart from the United States prior to the exchange visitors’ departure dates.
(5) Termination of an exchange visitor’s program. Sponsors must promptly report in SEVIS the involuntary termination of an exchange visitor’s program. Sponsors must not alter the “Program End Date” field, but should enter the date of program termination in the “Effective Date of Termination” field. This will change the status of the SEVIS record from “Active” to “Terminated”. Such notification in SEVIS ends a sponsor’s programmatic obligation to the exchange visitor and his or her accompanying spouse and dependents, if any, and prevents the sponsor from thereafter extending the exchange visitor’s duration of participation, transferring the exchange visitor to another program, or changing the exchange visitor’s category. Sponsors must not terminate the program of an exchange visitor who voluntarily ends his or her program.
(b) Change of circumstance of an exchange visitor. Sponsors must promptly notify the Department of State via SEVIS of any of the following circumstances:
(1) Change in the actual and current U.S. address. Sponsors must ensure that the actual and current U.S. addresses of an exchange visitor are reported in SEVIS:
(i) Sponsors must report the U.S. mailing address (i.e., provide a P.O. Box number) in SEVIS in those limited cases where mail cannot be delivered to the exchange visitor’s actual and current U.S. address (e.g., the exchange visitor resides in a campus setting); and
(ii) If a U.S. mailing address is reported to SEVIS, sponsors must also maintain records in SEVIS of actual and current U.S. addresses (e.g., dormitory, building and room number) for such exchange visitors.
(2) Change in site of activity. Sponsors must report in SEVIS any change to an exchange visitor’s site of activity by entering the new site within ten business days of notification of such a change where sponsor rules or regulations permit such a change. Sponsors must promptly enter any change in the site of activity in those instances where the sponsor is responsible for the placement. Sponsors must identify the “primary” site of activity of an exchange visitor if multiple sites of activity are reported in SEVIS.
(c) Change in sponsor’s circumstance. Sponsors must report within ten business days in SEVIS or directly to the Department of State, if appropriate, any material changes to their exchange visitor program as follows:
(1) Change of business and/or mailing address, telephone number, facsimile number, or email address;
(2) Change in the composition of the sponsor organization that affects its status as a United States Person as defined in § 62.2, which includes a new Employment Identification Number (EIN);
(3) Change of Responsible Officer or Alternate Responsible Officer;
(4) Major change of ownership or control of the sponsor’s organization as defined in § 62.60(e);
(5) Change of the sponsor’s principal place of business to a location outside the United States;
(6) Change in financial circumstances that may render the sponsor unable to comply with its obligations as set forth in § 62.9(e);
(7) Loss of licensure or accreditation;
(8) Loss or theft of Forms DS-2019, in which case a sponsor must notify the Department of State promptly by telephone or email of the SEVIS identification numbers of such Forms DS-2019 that have been lost or stolen;
(9) A decision by the sponsor to voluntarily cancel (withdraw) its exchange visitor program designation; or
(10) Any other material facts or events that may have an impact on the sponsor’s ability to properly administer or conduct its exchange visitor program.
(d) Serious problem or controversy. Sponsors must inform the Department of State on or before the next business day by telephone (confirmed promptly in writing by facsimile or email) of any investigations of an exchange visitor’s site of activity or serious problem or controversy that could be expected to bring the Department of State, the Exchange Visitor Program, or the sponsor’s exchange visitor program into notoriety or disrepute, including any potential litigation related to a sponsor’s exchange visitor program, in which the sponsor or an exchange visitor may be a named party.
§ 62.14 Insurance.
(a) Sponsors must require that all exchange visitors have insurance in effect that covers the exchange visitors for sickness or accidents during the period of time that they participate in the sponsor’s exchange visitor program. In addition, sponsors must require that accompanying spouses and dependents of exchange visitors have insurance for sickness and accidents. Sponsors must inform all exchange visitors that they, and any accompanying spouse and dependent(s), also may be subject to the requirements of the Affordable Care Act.
(b) The period of required coverage is the actual duration of the exchange visitor’s participation in the sponsor’s exchange visitor program as recorded in SEVIS in the “Program Begin Date,” and as applicable, the “Program End Date,” “Effective Program End Date,” or “Effective Date of Termination” fields. Sponsors are not authorized to charge fees to their sponsored exchange visitors for the provision of insurance coverage beyond any demonstrable and justifiable staff time. Sponsors are not required to, but may, offer supplemental “entry to exit” coverage (i.e., coverage from the time the exchange visitor departs his or her home country until he or she returns). If the sponsor provides health insurance, or arranges for health insurance to be offered the exchange visitor, via payroll deduction at the host organization, the exchange visitor must voluntarily authorize this action in writing and also be given the opportunity to make other arrangements to obtain insurance. These authorizations must be kept on file by the sponsor. Minimum coverage must provide:
(1) Medical benefits of at least $100,000 per accident or illness;
(2) Repatriation of remains in the amount of $25,000;
(3) Expenses associated with the medical evacuation of exchange visitors to his or her home country in the amount of $50,000; and
(4) Deductibles not to exceed $500 per accident or illness.
(c) Insurance policies secured to fulfill the requirements of this section:
(1) May require a waiting period for pre-existing conditions that is reasonable as determined by current industry standards;
(2) May include provisions for co-insurance under the terms of which the exchange visitor may be required to pay up to 25% of the covered benefits per accident or illness; and
(3) Must not unreasonably exclude coverage for perils inherent to the activities of the exchange program in which the exchange visitor participates.
(d) Any policy, plan, or contract secured to fill the above requirements must, at a minimum, be:
(1) Underwritten by an insurance corporation having an A.M. Best rating of “A−” or above; a McGraw Hill Financial/Standard & Poor’s Claims-paying Ability rating of “A−” or above; a Weiss Research, Inc. rating of “B + ” or above; a Fitch Ratings, Inc. rating of “A−” or above; a Moody’s Investor Services rating of “A3” or above; or such other rating as the Department of State may from time to time specify; or
(2) Backed by the full faith and credit of the government of the exchange visitor’s home country; or
(3) Part of a health benefits program offered on a group basis to employees or enrolled students by a designated sponsor; or
(4) Offered through or underwritten by a federally qualified Health Maintenance Organization or eligible Competitive Medical Plan as determined by the Centers for Medicare and Medicaid Services of the U.S. Department of Health and Human Services.
(e) Federal, state or local government agencies; state colleges and universities; and public community colleges may, if permitted by law, self-insure any or all of the above-required insurance coverage.
(f) At the request of a non-governmental sponsor of an exchange visitor program, and upon a showing that such sponsor has funds readily available and under its control sufficient to meet the requirements of this section, the Department of State may permit the sponsor to self-insure or to accept full financial responsibility for such requirements.
(g) The Department of State may, in its sole discretion, condition its approval of self-insurance or the acceptance of full financial responsibility by the non-governmental sponsor by requiring such sponsor to secure a payment bond in favor of the Department of State guaranteeing the sponsor’s obligations hereunder.
(h) Accompanying spouses and dependents are required to be covered by insurance in the amounts set forth in paragraph (b) of this section. Sponsors must inform exchange visitors of this requirement, in writing, in advance of the exchange visitor’s arrival in the United States.
(i) Exchange visitors who willfully fail to maintain the insurance coverage set forth above while a participant in an exchange visitor program or who make material misrepresentations to the sponsor concerning such coverage will be deemed to be in violation of these regulations and will be subject to termination as an exchange visitor.
(j) Sponsors must terminate an exchange visitor’s participation in their program if the sponsor determines that the exchange visitor or any accompanying spouse or dependent willfully fails to remain in compliance with this section.
§ 62.15 Reporting requirements.
(a) Sponsors must submit annual reports to the Department of State that are generated through SEVIS on Form DS-3097. Such reports must be filed on an academic, calendar, or fiscal year basis, as directed by the Department of State in the sponsor’s letter of designation or redesignation, and must contain the following:
(1) Program report and evaluation. A summary of the activities in which exchange visitors were engaged, including an evaluation of program effectiveness, program difficulties, and number of staff used in the administration of the exchange visitor program;
(2) Reciprocity. A description of the nature and extent of reciprocity occurring in the sponsor’s exchange visitor program during the reporting year;
(3) Cross-cultural activities. A description of the cross-cultural activities the sponsor provided for its exchange visitors during the reporting year;
(4) Proof of insurance. Certification of compliance with insurance coverage requirements set forth in § 62.14;
(5) Certification. The following certification:
“I certify that the information in this report is complete and correct to the best of my knowledge and belief; and, that the above named program sponsor has complied with all health and accident insurance requirements for exchange visitors and their accompanying spouses and dependents (22 CFR 62.14).”
(i) For exchange visitor programs classified as “Government Programs,” this certification will be signed by the Responsible Officer.
(ii) For exchange visitor programs classified as P-1 or P-2 “Academic Programs” this certification will be signed by the institution’s Chief Executive Officer or Responsible Officer.
(iii) For exchange visitor programs classified as P-3 and P-4 “Private Sector Programs,” this certification will be signed by the organization’s Chief Executive Officer or Responsible Officer.
(6) Program participation. A numerical count of all exchange visitors participating in the sponsor’s program for the reporting year (i.e., by category, form usage, active status at one point during the annual cycle, and by other status).
(b) Sponsors of P-3 and P-4 “Private Sector” programs must file a program specific management review (in a format and on a schedule approved by the Department of State).
§ 62.16 Employment.
(a) An exchange visitor may receive compensation from the sponsor or the sponsor’s appropriate designee, such as the host organization, when employment activities are part of the exchange visitor’s program.
(b) An exchange visitor who engages in unauthorized employment shall be deemed to be in violation of his or her program status and is subject to termination as a participant in an exchange visitor program.
(c) The acceptance of employment by the accompanying spouse and dependents of an exchange visitor is governed by Department of Homeland Security regulations.
§ 62.17 Fees and charges.
(a) Remittances. Fees prescribed within the framework of 31 U.S.C. 9701 must be submitted as directed by the Department and must be in the amount prescribed by law or regulation.
(b) Amounts of fees. The following fees are prescribed.
(1) For filing an application for program designation and/or redesignation (Form DS-3036) – $3,982.00.
(2) For filing an application for exchange visitor status changes (i.e., extension beyond the maximum duration, change of category, reinstatement, reinstatement-update SEVIS status, ECFMG sponsorship authorization, and permission to issue) – $367.00.
Subpart B – Specific Program Provisions
§ 62.20 Professors and research scholars.
(a) Introduction. These regulations govern Exchange Visitor Program participants in the categories of professor and research scholar, except:
(1) Alien physicians in graduate medical education or training, who are governed by regulations set forth at § 62.27; and
(2) Short-term scholars, who are governed by regulations set forth at § 62.21.
(b) Purpose. The purpose of the Exchange Visitor Program, in part, is to foster the exchange of ideas between Americans and foreign nationals and to stimulate international collaborative teaching, lecturing and research efforts. The exchange of professors and research scholars promotes the exchange of ideas, research, mutual enrichment, and linkages between research and educational institutions in the United States and foreign countries. It does so by providing foreign professors and research scholars the opportunity to engage in research, teaching and lecturing with their American colleagues, to participate actively in cross-cultural activities with Americans, and ultimately to share with their countrymen their experiences and increased knowledge of the United States and their substantive fields.
(c) Designation. The Department of State may, in its sole discretion, designate bona fide exchange visitor programs, which offer foreign nationals the opportunity to engage in research, teaching, lecturing, observing, or consulting at research institutions, corporate research facilities, museums, libraries, post-secondary accredited educational institutions, or similar types of institutions in the United States.
(d) Visitor eligibility. An individual may be selected for participation in the Exchange Visitor Program as a professor or research scholar subject to the following conditions:
(1) The participant must not be a candidate for a tenure track position;
(2) The participant has not been physically present in the United States as a nonimmigrant pursuant to the provisions of 8 U.S.C. 1101(a)(15)(J) for all or part of the twelve-month period immediately proceeding the date of program commencement set forth on his or her Form DS-2019, unless:
(i) The participant is transferring to the sponsor’s program pursuant to provisions set forth in § 62.42;
(ii) The participant’s presence in the United States was of less than six months duration; or
(iii) The participant’s presence in the United States was pursuant to a short-term scholar exchange activity as authorized by § 62.21; and
(3) The participant is not subject to the prohibition against repeat participation set forth at § 62.20(i)(2).
(e) Issuance of Form DS-2019. The Form DS-2019 must be issued only after the professor or research scholar has been accepted by the institution where he or she will participate in an exchange visitor program.
(f) Location of the exchange. Professors or research scholars must conduct their exchange activity at the site(s) of activity identified in SEVIS, which may be either the location of the exchange visitor program sponsor or the site of a third party facilitating the exchange with permission of the Responsible Officer. An exchange visitor may also engage in activities at other locations if such activities constitute occasional lectures or consultations permitted by paragraph (g) of this section. All such sites of activity must be entered into SEVIS while the exchange visitor’s SEVIS record is in Initial or Active status.
(g) Occasional lectures or consultations. Professors and research scholars may participate in occasional lectures and short-term consultations, if authorized to do so by his or her sponsor. Such lectures and consultations must be incidental to the exchange visitor’s primary program activities. If wages or other remuneration are received by the exchange visitor for such activities, the exchange visitor must act as an independent contractor, as such term is defined in 8 CFR 274a.1(j), and the following criteria and procedures must be satisfied:
(1) Criteria. The occasional lectures or short-term consultations must:
(i) Be directly related to the objectives of the exchange visitor’s program;
(ii) Be incidental to the exchange visitor’s primary program activities;
(iii) Not delay the completion date of the exchange visitor’s program; and
(iv) Be documented in SEVIS.
(2) Procedures. (i) To obtain authorization to engage in occasional lectures or short-term consultations involving wages or other remuneration, the exchange visitor must present to the responsible officer:
(A) A letter from the offeror setting forth the terms and conditions of the offer to lecture or consult, including the duration, number of hours, field or subject, amount of compensation, and description of such activity; and
(B) A letter from the exchange visitor’s department head or supervisor recommending such activity and explaining how the activity would enhance the exchange visitor’s program.
(ii) The responsible officer must review the letters required in paragraph (g)(2)(i) of this section and make a written determination whether such activity is warranted, will not interrupt the exchange visitor’s original objective, and satisfies the criteria set forth in paragraph (g)(1) of this section.
(h) Change of activity. At the discretion and approval of the responsible officer, professors may freely engage in research and research scholars may freely engage in teaching and lecturing. Because these activities are intertwined, such a change of activity is not considered a change of category necessitating formal approval by the Department of State and does not require the issuance of a new Form DS-2019 to reflect a change in category. Such change in activity does not extend the exchange visitor’s maximum duration of program participation.
(i) Duration of participation. The permitted duration of program participation for a professor or research scholar is as follows:
(1) General limitation. A professor or research scholar may be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete his or her program, provided such time does not exceed five years. The five-year period of permitted program participation is continuous and begins with the initial program begin date documented in SEVIS or the date such status was acquired via a petition submitted and approved by the Department of Homeland Security (DHS) as documented in SEVIS and ends five years from such date.
(2) Repeat participation. Exchange participants who have entered the United States under the Exchange Visitor Program as a professor or research scholar, or who have acquired such status while in the United States, and who have completed his or her program are not eligible for participation as a professor or research scholar for a period of two years following the end date of such program participation as identified in SEVIS.
(3) Extensions. A responsible officer may not extend the period of program duration beyond the five-year period of maximum program duration authorized for professor and research scholar participants. The Department may, in its sole discretion, authorize an extension beyond the permitted five-year period, as submitted by a “G-7” program sponsor, upon successful demonstration of the following:
(i) The participant for whom an extension is requested is engaged in a research project under the direct sponsorship of a Federally Funded National Research and Development Center (“FFNRDC”) or a U.S. Federal Laboratory;
(ii) The FFNRDC or U.S. Federal Laboratory requesting the extension on behalf of the participant has determined, through peer review, that the participant’s continued involvement in the project is beneficial to its successful conclusion; and
(iii) The Secretary of the Department of Homeland Security has determined in his/her discretion that the extension may be approved;
(iv) The extension request is for not more than five years.
§ 62.21 Short-term scholars.
(a) Introduction. These regulations govern scholars coming to the United States for a period of up to four months to lecture, observe, consult, and to participate in seminars, workshops, conferences, study tours, professional meetings, or similar types of educational and professional activities.
(b) Purpose. The Exchange Visitor Program promotes the interchange of knowledge and skills among foreign and American scholars. It does so by providing foreign scholars the opportunity to exchange ideas with their American colleagues, participate in educational and professional programs, confer on common problems and projects, and promote professional relationships and communications.
(c) Designation. The Department of State may, in its sole discretion, designate bona fide programs which offer foreign nationals the opportunity to engage in short-term visits for the purpose of lecturing, observing, consulting, training, or demonstrating special skills at research institutions, museums, libraries, post-secondary accredited educational institutions, or similar types of institutions.
(d) Visitor eligibility. A person participating in the Exchange Visitor Program under this section shall satisfy the definition of a short-term scholar as set forth in § 62.4.
(e) Cross-cultural activities and orientation. Due to the nature of such exchanges, sponsors of programs for short-term scholars shall be exempted from the requirements of providing cross-cultural activities and orientation as set forth in § 62.8(d) and § 62.10(c). However, sponsors are encouraged to provide such programs for short-term scholars whenever appropriate.
(f) Location of exchange. The short-term scholar shall participate in the Exchange Visitor Program at the conferences, workshops, seminars, or other events or activities stated on his or her Form DS-2019. A participant may also lecture or consult at institutions not listed on the Form DS-2019 if his or her Responsible Officer issues a written authorization of such activity. Such written authorization must be attached to the participant’s Form DS-2019.
(g) Duration of participation. The short-term scholar shall be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete the program, which time shall not exceed six months. Programs under this section are exempted from § 62.8(b) governing the minimum duration of a program. Extensions beyond the duration of participation are not permitted under this category.
§ 62.22 Trainees and interns.
(a) Introduction. These regulations govern Exchange Visitor Programs under which foreign nationals with significant experience in their occupational field have the opportunity to receive training in the United States in such field. These regulations also establish a new internship program under which foreign national students and recent graduates of foreign post-secondary academic institutions have the opportunity to receive training in the United States in their field of academic study. These regulations include specific requirements to ensure that both trainees and interns receive hands-on experience in their specific fields of study/expertise and that they do not merely participate in work programs. Regulations dealing with training opportunities for certain foreign students who are studying at post-secondary accredited educational institutions in the United States are located at § 62.23 (“College and University Students”). Regulations governing alien physicians in graduate medical education or training are located at § 62.27 (“Alien Physicians”).
(b) Purpose. (1)(i) The primary objectives of the programs offered under these regulations are to enhance the skills and expertise of exchange visitors in their academic or occupational fields through participation in structured and guided work-based training and internship programs and to improve participants’ knowledge of American techniques, methodologies, and technology. Such training and internship programs are also intended to increase participants’ understanding of American culture and society and to enhance Americans’ knowledge of foreign cultures and skills through an open interchange of ideas between participants and their American associates. A key goal of the Fulbright-Hays Act, which authorizes these programs, is that participants will return to their home countries and share their experiences with their countrymen.
(ii) Exchange Visitor Program training and internship programs must not be used as substitutes for ordinary employment or work purposes; nor may they be used under any circumstances to displace American workers. The requirements in these regulations for trainees are designed to distinguish between bona fide training, which is permitted, and merely gaining additional work experience, which is not permitted. The requirements in these regulations for interns are designed to distinguish between a period of work-based learning in the intern’s academic field, which is permitted (and which requires a substantial academic framework in the participant’s field), and unskilled labor, which is not.
(2) In addition, a specific objective of the new internship program is to provide foreign nationals who are currently enrolled full-time and pursuing studies at a degree- or certificate-granting post-secondary academic institution or graduated from such an institution no more than 12 months prior to their exchange visitor program begin date a period of work-based learning to allow them to develop practical skills that will enhance their future careers. Bridging the gap between formal education and practical work experience and gaining substantive cross-cultural experience are major goals in educational institutions around the world. By providing training opportunities for current foreign students and recent foreign graduates at formative stages of their development, the U.S. Government will build partnerships, promote mutual understanding, and develop networks for relationships that will last through generations as these foreign nationals move into leadership roles in a broad range of occupational fields in their own societies. These results are closely tied to the goals, themes, and spirit of the Fulbright-Hays Act.
(c) Designation. (1) The Department may, in its sole discretion, designate as sponsors those entities it deems to meet the eligibility requirements set forth in Subpart A of 22 CFR part 62 and to have the organizational capacity successfully to administer and facilitate training and internship programs.
(2) Sponsors must provide training and internship programs only in the occupational category or categories for which the Department has designated them as sponsors. The Department may designate training and internship programs in any of the following occupational categories:
(i) Agriculture, Forestry, and Fishing;
(ii) Arts and Culture;
(iii) Construction and Building Trades;
(iv) Education, Social Sciences, Library Science, Counseling and Social Services;
(v) Health Related Occupations;
(vi) Hospitality and Tourism;
(vii) Information Media and Communications;
(viii) Management, Business, Commerce and Finance;
(ix) Public Administration and Law; and
(x) The Sciences, Engineering, Architecture, Mathematics, and Industrial Occupations.
(d) Selection criteria. (1) In addition to satisfying the general requirements set forth in § 62.10(a), sponsors must ensure that trainees and interns have verifiable English language skills sufficient to function on a day-to-day basis in their training environment. Sponsors must verify an applicant’s English language proficiency through a recognized English language test, by signed documentation from an academic institution or English language school, or through a documented interview conducted by the sponsor either in-person or by videoconferencing, or by telephone if videoconferencing is not a viable option.
(2) Sponsors of training programs must verify that all potential trainees are foreign nationals who have either a degree or professional certificate from a foreign post-secondary academic institution and at least one year of prior related work experience in their occupational field acquired outside the United States or five years of work experience in their occupational field acquired outside the United States.
(3) Sponsors of internship programs must verify that all potential interns are foreign nationals who are currently enrolled full-time and pursuing studies in their advanced chosen career field at a degree- or certificate-granting post-secondary academic institution outside the United States or graduated from such an institution no more than 12 months prior to their exchange visitor program begin date.
(e) Issuance of Forms DS-2019. In addition to the requirements set forth in Subpart A, sponsors must ensure that:
(1) They do not issue Forms DS-2019 to potential participants in training and internship programs until they secure placements for trainees or interns and complete and secure requisite signatures on Form DS-7002, Training/Internship Placement Plan (T/IPP);
(2) Trainees and interns have sufficient finances to support themselves for their entire stay in the United States, including housing and living expenses; and
(3) The training and internship programs expose participants to American techniques, methodologies, and technology and expand upon the participants’ existing knowledge and skills. Programs must not duplicate the participants’ prior work experience or training received elsewhere.
(f) Obligations of training and internship program sponsors. (1) Sponsors designated by the Department to administer training and internship programs must:
(i) Ensure that trainees and interns are appropriately selected, placed, oriented, supervised, and evaluated;
(ii) Be available to trainees and interns (and host organizations, as appropriate) to assist as facilitators, counselors, and information resources;
(iii) Ensure that training and internship programs provide a balance between the trainees’ and interns’ learning opportunities and their contributions to the organizations in which they are placed;
(iv) Ensure that the training and internship programs are full-time (minimum of 32 hours a week); and
(v) Ensure that any host organizations and third parties involved in the recruitment, selection, screening, placement, orientation, evaluation for, or the provision of training and internship programs are sufficiently educated on the goals, objectives, and regulations of the Exchange Visitor Program and adhere to all regulations set forth in this part as well as all additional terms and conditions governing Exchange Visitor Program administration that the Department may from time to time impose.
(2) Sponsors must certify that they or any host organization acting on the sponsor’s behalf:
(i) Have sufficient resources, plant, equipment, and trained personnel available to provide the specified training and internship program;
(ii) Provide continuous on-site supervision and mentoring of trainees and interns by experienced and knowledgeable staff;
(iii) Ensure that trainees and interns obtain skills, knowledge, and competencies through structured and guided activities such as classroom training, seminars, rotation through several departments, on-the-job training, attendance at conferences, and similar learning activities, as appropriate in specific circumstances;
(iv) Conduct periodic evaluations of trainees and interns, as set forth in § 62.22(l);
(v) Do not displace full- or part-time or temporary or permanent American workers or serve to fill a labor need and ensure that the positions that trainees and interns fill exist primarily to assist trainees and interns in achieving the objectives of their participation in training and internship programs; and
(vi) Certify that training and internship programs in the field of agriculture meet all the requirements of the Fair Labor Standards Act, as amended (29 U.S.C. 201 et seq.) and the Migrant and Seasonal Agricultural Worker Protection Act, as amended (29 U.S.C. 1801 et seq.).
(3) Sponsors or any third parties acting on their behalf must complete thorough screening of potential trainees or interns, including a documented interview conducted by the sponsor either in-person or by videoconferencing, or by telephone if videoconferencing is not a viable option.
(4) Sponsors must retain all documents referred to in § 62.22(f) for at least three years following the completion of all training and internship programs. Documents and any requisite signatures may be retained in either hard copy or electronic format.
(g) Use of third parties – (1) Sponsors use of third parties. Sponsors may engage third parties (including, but not limited to host organizations, partners, local businesses, governmental entities, academic institutions, and other foreign or domestic agents) to assist them in the conduct of their designated training and internship programs. Such third parties must have an executed written agreement with the sponsor to act on behalf of the sponsor in the conduct of the sponsor’s program. This agreement must outline the obligations and full relationship between the sponsor and third party on all matters involving the administration of their exchange visitor program. A sponsor’s use of a third party does not relieve the sponsor of its obligations to comply with and to ensure third party compliance with Exchange Visitor Program regulations. Any failure by any third party to comply with the regulations set forth in this part or with any additional terms and conditions governing Exchange Visitor Program administration that the Department may from time to time impose will be imputed to the sponsors engaging such third party.
(2) Screening and vetting third parties operating outside the United States. Sponsors must ascertain that third parties operating outside the United States are legitimate entities within the context of their home country environment. For third parties that operate as businesses, sponsors must obtain relevant home country documentation, such as a business registration or certification. Such home country documentation must include an English Language translation for any business registration or certification documents submitted in a foreign language. Written agreements between sponsors and third parties operating outside the United States must include annually updated price lists for training and internship programs offered by each third party, and must indicate that such overseas third parties are sufficiently trained in all aspects of the programs they represent, including the regulations set forth in this part.
(3) Screening and vetting host organizations. Sponsors must adequately screen all potential host organizations at which a trainee or intern will be placed by obtaining the following information:
(i) Employer Identification Number (EIN) used for tax purposes;
(ii) Third party verification of telephone number, address, and professional activities, e.g., via advertising, brochures, Web site, and/or feedback from prior participants; and
(iii) Verification of Worker’s Compensation Insurance Policy or equivalent in each state or, if applicable, evidence of state exemption from requirement of coverage.
(4) Site visits of host organizations. Sponsors must conduct site visits of host organizations that have not previously participated successfully in the sponsor’s training and internship programs and that have fewer than 25 employees or less than three million dollars in annual revenue. Placements at academic institutions or at federal, state, or local government offices are specifically excluded from this requirement. The purpose of the site visits is for the sponsors to ensure that host organizations possess and maintain the ability and resources to provide structured and guided work-based learning experiences according to individualized T/IPPs and that host organizations understand and meet their obligations set forth in this part.
(h) Host organization obligations. Sponsors must ensure that:
(1) Host organizations sign a completed Form DS-7002 to verify that all placements are appropriate and consistent with the objectives of the trainees or interns as outlined in their program applications and as set forth in their T/IPPs. All parties involved in internship programs should recognize that interns are seeking entry-level training and experience. Accordingly, all placements must be tailored to the skills and experience level of the individual intern;
(2) Host organizations notify sponsors promptly of any concerns about, changes in, or deviations from T/IPPs during training and internship programs and contact sponsors immediately in the event of any emergency involving trainees or interns;
(3) Host organizations abide by all federal, state, and local occupational health and safety laws; and
(4) Host organizations abide by all program rules and regulations set forth by the sponsors, including the completion of all mandatory program evaluations.
(i) Training/internship placement plan (Form DS-7002). (1) Sponsors must fully complete and obtain all requisite signatures on a Form DS-7002 for each trainee or intern before issuing a Form DS-2019. Sponsors must provide each signatory an executed copy of the Form DS-7002. Upon request, trainees and interns must present their fully executed Form DS-7002 to Consular Officials during their visa interview.
(2) To further distinguish between bona fide training for trainees or work-based learning for interns, which are permitted, and unskilled or casual labor positions which are not, all T/IPPs must:
(i) State the specific goals and objectives of the training and internship program (for each phase or component, if applicable);
(ii) Detail the knowledge, skills, or techniques to be imparted to the trainee or intern (for each phase or component, if applicable); and
(iii) Describe the methods of performance evaluation and the supervision for each phase or component, if applicable.
(3) A T/IPP for trainees must be divided into specific and various phases or components, and for each phase or component must:
(i) Describe the methodology of training and
(ii) Provide a chronology or syllabus.
(4) A T/IPP for interns must:
(i) Describe the role of the intern in the organization and, if applicable, identify various departments or functional areas in which the intern will work; and
(ii) Identify the specific tasks and activities the intern will complete.
(j) Program exclusions. Sponsors designated by the Department to administer training and internship programs must not:
(1) Place trainees or interns in unskilled or casual labor positions, in positions that require or involve child care or elder care; or in clinical or any other kind of work that involves patient care or patient contact, including any work that would require trainees or interns to provide therapy, medication, or other clinical or medical care (e.g., sports or physical therapy, psychological counseling, nursing, dentistry, veterinary medicine, social work, speech therapy, early childhood education);
(2) Place trainees or interns in positions, occupations, or businesses that could bring the Exchange Visitor Program or the Department into notoriety or disrepute; or
(3) Engage or otherwise cooperate or contract with a Staffing/Employment Agency to recruit, screen, orient, place, evaluate, or train trainees or interns, or in any other way involve such agencies in an Exchange Visitor Program training and internship program.
(4) Issue a T/IPP for any trainee or intern for which the duties involve more than 20 per cent clerical work.
(5) Have less than three departmental or functional rotations for “Hospitality and Tourism” training and internship programs of six months or longer.
(k) Duration. The duration of participation in a training and internship program must be established before a sponsor issues a Form DS-2019 and must not exceed the sponsor’s authorized designation as set forth in the sponsor’s letter of designation or most recent letter of redesignation. Except as noted below, the maximum duration of a training program is 18 months, and the maximum duration of an internship program is 12 months. For training programs in the field of agriculture and in the occupational category of Hospitality and Tourism, the maximum duration of program participation is 12 months. If an original T/IPP specifies that at least six months of a program includes related classroom participation and studies, training programs in the field of agriculture may be designated for a total duration of 18 months. Program extensions are permitted within the maximum duration as set forth in the letter of designation/redesignation provided that the need for an extended training or internship program is documented by the full completion and execution of a new Form DS-7002. 12-month training programs in the field of agriculture may not be extended to 18 months by adding six months of classroom participation and studies at the end of the original 12-month program duration. Per above, the six months of related classroom participation and studies must have been part of the trainee’s original T/IPP.
(l) Evaluations. In order to ensure the quality of training and internship programs, sponsors must develop procedures for evaluating all trainees and interns. All required evaluations must be completed prior to the conclusion of a training and internship program, and both the trainees and interns and their immediate supervisors must sign the evaluation forms. For programs exceeding six months’ duration, at a minimum, midpoint and concluding evaluations are required. For programs of six months or less, at a minimum, concluding evaluations are required. Sponsors must retain trainee and intern evaluations (electronic or hard copy) for a period of at least three years following the completion of each training and internship program.
(m) Issuance of certificate of eligibility for exchange visitor (J-1) status. Sponsors must not deliver or cause to be delivered any Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019) to potential trainees or interns unless the individualized Form DS-7002 required by § 62.22(i) has been completed and signed by all requisite parties.
(n) Additional training and internship program participation. Foreign nationals who enter the United States under the Exchange Visitor Program to participate in training and internship programs are eligible to participate in additional training and internship programs under certain conditions. For both trainees and interns, additional training and internship programs must address the development of more advanced skills or a different field of expertise. Interns may apply for additional internship programs if they:
(1) Are currently enrolled full-time and pursuing studies at degree- or certificate-granting post-secondary academic institutions outside the United States; or,
(2) Have graduated from such institutions no more than 12 months prior to the start of their proposed exchange visitor program. A new internship is also permissible when a student has successfully completed a recognized course of study (i.e., associate, bachelors, masters, Ph.D., or their recognized equivalents) and has enrolled and is pursuing studies at the next higher level of academic study. Trainees are eligible for additional training programs after a period of at least two years residency outside the United States following completion of their training program. Participants who have successfully completed internship programs and no longer meet the selection criteria for an internship program may participate in a training program if they have resided outside the United States or its territories for at least two years. If participants meet these selection criteria and fulfill these conditions, there will be no limit to the number of times they may participate in a training and internship program.
§ 62.23 College and university students.
(a) Purpose. A program under this section provides foreign students the opportunity to participate in a designated exchange visitor program while studying at a degree-granting post-secondary accredited academic institution or participating in a student internship program which fulfills the student’s academic study. A student sponsored in this category may participate in a degree, non-degree, or student internship program. Such an exchange is intended to promote mutual understanding by fostering the exchange of ideas between foreign students and their American counterparts.
(b) Designation. The Department of State may, in its sole discretion, designate bona fide programs which offer foreign students the opportunity to study in the United States at a post-secondary accredited academic institution or to participate in a student internship program.
(c) Selection criteria. A sponsor selects the college and university students who participate in its exchange visitor program. A sponsor must secure sufficient background information on the students to ensure that they have the academic credentials required for its program. A student is eligible for participation in the Exchange Visitor Program if at any time during his or her educational program in the United States:
(1) The student or his or her program is financed directly or indirectly by:
(i) The United States Government;
(ii) The government of the student’s home country; or
(iii) An international organization of which the United States is a member by treaty or statute;
(2) The program is carried out pursuant to an agreement between the United States Government and a foreign government;
(3) The program is carried out pursuant to written agreement between:
(i) American and foreign academic institutions;
(ii) An American academic institution and a foreign government; or
(iii) A state or local government in the United States and a foreign government;
(4) The student is supported substantially by funding from any source other than personal or family funds; or
(5) The student is participating in a student internship program as described in paragraph (i) of this section.
(d) Admissions requirement. In addition to satisfying the requirements of § 62.10(a), a sponsor must ensure that the student has been admitted to, or accepted for a student internship program offered by, the post-secondary accredited academic institution listed on the Form DS-2019 before issuing the Form.
(e) Full course of study requirement. A student, other than a student intern described in paragraph (h)(3)(i) of this section, must pursue a full course of study at a post-secondary accredited academic institution in the United States as defined in § 62.2, except under the following circumstances:
(1) Vacation. During official school breaks and summer vacations if the student is eligible and intends to register for the next term. A student attending a school on a quarter or trimester calendar may be permitted to take the annual vacation during any one of the quarters or trimesters instead of during the summer.
(2) Medical illness. If the student is compelled to reduce or interrupt a full course of study due to an illness or medical condition and the student presents to the responsible officer a written statement from a physician requiring or recommending an interruption or reduction in studies.
(3) Bona fide academic reason. If the student is compelled to pursue less than a full course of study for a term and the student presents to the responsible officer a written statement from the academic dean or advisor recommending the student to reduce his or her academic load to less than a full course of study due to an academic reason.
(4) Non-degree program. If the student is engaged full time in a prescribed course of study in a non-degree program of up to 24 months duration conducted by a post-secondary accredited academic institution.
(5) Academic training. If the student is participating in authorized academic training in accordance with paragraph (f) of this section.
(6) Final term. If the student needs less than a full course of study to complete the academic requirements in his or her final term.
(f) Academic training – (1) Purpose. The primary purpose of academic training is to permit a student, other than a student intern described in paragraph (i) of this section, to participate in an academic training program during his or her studies, without wages or other remuneration, with the approval of the academic dean or advisor and the responsible officer.
(2) Conditions. A student, other than a student intern described in paragraph (i) of this section, may be authorized to participate in an academic training program for wages or other remuneration:
(i) During his or her studies; or
(ii) Commencing not later than 30 days after completion of his or her studies, if the criteria, time limitations, procedures, and evaluations listed below in paragraphs (f)(3) through (f)(6) are satisfied:
(3) Criteria. (i) The student is primarily in the United States to study rather than engage in academic training;
(ii) The student is participating in academic training that is directly related to his or her major field of study at the post-secondary accredited academic institution listed on his or her Form DS-2019;
(iii) The student is in good academic standing with the post-secondary accredited academic institution; and
(iv) The student receives written approval in advance from the responsible officer for the duration and type of academic training.
(4) Time limitations. The student is authorized to participate in academic training for the length of time necessary to complete the goals and objectives of the training, provided that the amount of time for academic training:
(i) Is approved by the academic dean or advisor and approved by the responsible officer;
(ii) For undergraduate and pre-doctoral training, does not exceed 18 months, inclusive of any prior academic training in the United States, or the period of full course of study in the United States, whichever is less; except that additional time for academic training is allowed to the extent necessary for the exchange visitor to satisfy the mandatory requirements of his or her degree program in the United States;
(iii) For post-doctoral training, does not exceed a total of 36 months, inclusive of any prior academic training in the United States as an exchange visitor, or the period of the full course of study in the United States, whichever is less.
(5) Procedures. To obtain authorization to engage in academic training:
(i) The student must present to the responsible officer a letter of recommendation from the student’s academic dean or advisor setting forth:
(A) The goals and objectives of the specific academic training program;
(B) A description of the academic training program, including its location, the name and address of the training supervisor, number of hours per week, and dates of the training;
(C) How the academic training relates to the student’s major field of study; and
(D) Why it is an integral or critical part of the academic program of the student.
(ii) The responsible officer must:
(A) Determine if and to what extent the student has previously participated in academic training as a student, in order to ensure the student does not exceed the period permitted in paragraph (f) of this section;
(B) Review the letter of recommendation required in paragraph (f)(5)(i) of this section; and
(C) Make a written determination of whether the academic training currently being requested is warranted and the criteria and time limitations set forth in paragraph (f)(3) and (4) of this section are satisfied.
(6) Evaluation requirements. The sponsor must evaluate the effectiveness and appropriateness of the academic training in achieving the stated goals and objectives in order to ensure the quality of the academic training program.
(g) Student employment. A student, other than a student intern described in paragraph (i) of this section, may engage in part-time employment when the following criteria and conditions are satisfied.
(1) The student employment:
(i) Is pursuant to the terms of a scholarship, fellowship, or assistantship;
(ii) Occurs on the premises of the post-secondary accredited academic institution the visitor is authorized to attend; or
(iii) Occurs off-campus when necessary because of serious, urgent, and unforeseen economic circumstances which have arisen since acquiring exchange visitor status.
(2) A student may engage in employment as provided in paragraph (g)(1) of this section if the:
(i) Student is in good academic standing at the post-secondary accredited academic institution;
(ii) Student continues to engage in a full course of study, except for official school breaks and the student’s annual vacation;
(iii) Employment totals no more than 20 hours per week, except during official school breaks and the student’s annual vacation; and
(iv) The responsible officer has approved the specific employment in advance and in writing. Such approval may be valid for up to 12 months, but is automatically withdrawn if the student’s program is transferred or terminated.
(h) Duration of participation – (1) Degree student. A student who is in a degree program may be authorized to participate in the Exchange Visitor Program as long as he or she is either:
(i) Studying at the post-secondary accredited academic institution listed on his or her Form DS-2019 and:
(A) Pursuing a full course of study as set forth in paragraph (e) of this section, and
(B) Maintaining satisfactory advancement towards the completion of the student’s academic program; or
(ii) Participating in an authorized academic training program as permitted in paragraph (f) of this section.
(2) Non-degree student. A student who is in a non-degree program may be authorized to participate in the Exchange Visitor Program for up to 24 months. Such a student must be:
(i) Studying at the post-secondary accredited academic institution listed on his or her Form DS-2019 and:
(A) Participating full-time in a prescribed course of study; and
(B) Maintaining satisfactory advancement towards the completion of his or her academic program; or
(ii) Participating in an authorized academic training program as permitted in paragraph (f) of this section.
(3) Student intern. A student intern participating in a student internship program may be authorized to participate in the Exchange Visitor Program for up to 12 months for each degree/major as permitted in paragraph (i) of this section as long as the student intern is:
(i) Engaged full-time in a student internship program sponsored by the post-secondary accredited academic institution that issued Form DS-2019; and
(ii) Maintaining satisfactory advancement towards the completion of his or her student internship program.
(i) Student intern. The student intern is a foreign national enrolled in and pursuing a degree at an accredited post-secondary academic institution outside the United States and is participating in a student internship program in the United States that will fulfill the educational objectives for his or her current degree program at his or her home institution. The student intern must meet the following requirements:
(1) Criteria. (i) In addition to satisfying the general requirements set forth in § 62.10(a), a sponsor must ensure that the student intern has verifiable English language skills sufficient to function on a day-to-day basis in the internship environment. English language proficiency must be verified through a sponsor-conducted interview, by a recognized English language test, or by signed documentation from an academic institution or English language school.
(ii) The student intern is primarily in the United States to engage in a student internship program rather than to engage in employment or provide services to an employer;
(iii) The student intern has been accepted into a student internship program at the post-secondary accredited academic institution listed on his or her Form DS-2019;
(iv) The student intern is in good academic standing with the post-secondary academic institution outside the United States from which he or she is enrolled in and pursuing a degree; and
(v) The student intern will return to the academic program and fulfill and obtain a degree from such academic institution after completion of the student internship program.
(2) Program requirements. In addition to the requirements set forth in Subpart A, a sponsor must ensure that:
(i) It does not issue Form DS-2019 to a potential participant in a student internship program until it has secured a placement for the student intern and it completes and secures the requisite signatures on Form DS-7002 (T/IPP);
(ii) A student intern has sufficient finances to support himself or herself and dependants for their entire stay in the United States, including housing and living expenses; and
(iii) The student internship program exposes participants to American techniques, methodologies, and technology and expands upon the participants’ existing knowledge and skills. A program must not duplicate the student intern’s prior experience.
(3) Obligations of student internship program sponsors. (i) A sponsor designated by the Department to administer a student internship program must:
(A) Ensure that the student internship program is full-time (minimum of 32 hours a week); and
(B) Ensure that any host organization or other third party involved in the recruitment, selection, screening, placement, orientation, evaluation, or provision of a student internship program is sufficiently educated on the goals, objectives, and regulations of the Exchange Visitor Program and adheres to all regulations set forth in this part as well as all additional terms and conditions governing Exchange Visitor Program administration that the Department may from time to time impose.
(ii) A sponsor must ensure that it or any host organization acting on the sponsor’s behalf:
(A) Has sufficient resources, plant, equipment, and trained personnel available to provide the specified student internship program;
(B) Does not displace full- or part-time or temporary or permanent American workers or serve to fill a labor need and ensures that the position that the student interns fills exists solely to assist the student intern in achieving the objectives of his or her participation in a student internship program; and
(C) Certifies that student internship programs in the field of agriculture meet all the requirements of the Fair Labor Standards Act, as amended (29 U.S.C. 201 et seq.) and the Migrant and Seasonal Agricultural Worker Protection Act, as amended (29 U.S.C. 1801 et seq.).
(iii) Screening and vetting host organizations. A sponsor must adequately screen all potential host organizations at which a student intern will be placed by obtaining the following information:
(A) The Dun & Bradstreet identification number (unless the host organization is an academic institution, government entity, or family farm);
(B) Employer Identification Number (EIN) used for tax purposes;
(C) Verification of telephone number, address, and professional activities via advertising, brochures, Web site, and/or feedback from prior participants; and
(D) Verification of Workman’s Compensation Insurance Policy.
(iv) Site visits. A sponsor must conduct a site visit of any host organization that has not previously participated successfully in the sponsor’s student internship program, has fewer than 25 employees, or has less than three million dollars in annual revenue. Any placement at an academic institution or at a Federal, State, or local government office is specifically excluded from this requirement. The purpose of the site visit is for the sponsor to ensure that each host organization possesses and maintains the ability and resources to provide structured and guided work-based learning experiences according to individualized T/IPPs, and that each host organization understands and meets its obligations set forth in this part.
(4) Use of third parties. A sponsor may engage a third party (including, but not limited to a host organization, partner, local business, governmental entity, academic institution, or any other foreign or domestic agent) to assist it in the conduct of its designated student internship program. Such a third party must have an executed written agreement with the sponsor to act on behalf of the sponsor in the conduct of the sponsor’s program. This agreement must outline the full relationship between the sponsor and third party on all matters involving the administration of its exchange visitor program. A sponsor’s use of a third party does not relieve the sponsor of its obligations to comply with and to ensure third party compliance with Exchange Visitor Program regulations. Any failure by any third party to comply with the regulations set forth in this part or with any additional terms and conditions governing Exchange Visitor Program administration that the Department may from time to time impose will be imputed to the sponsor.
(5) Evaluation requirements. In order to ensure the quality of a student internship program, a sponsor must develop procedures for evaluating all student interns. All required evaluations must be completed prior to the conclusion of a student internship program, and the student intern and his or her immediate supervisor must sign the evaluation forms. At a minimum, all programs require a concluding evaluation, and programs lasting longer than six months also require a midpoint evaluation. For programs exceeding six months’ duration, at a minimum, midpoint and concluding evaluations are required. A sponsor must retain student intern evaluations (electronic or hard copy) for a period of at least three years following the completion of each student internship program.
(6) Employment, wages, or remuneration. A student intern is permitted to engage in full-time employment during the student internship program as outlined on his or her T/IPP, with or without wages or other compensation. Employment is not required for participation in the program. A student intern may be employed, however, only with the approval of the responsible officer and the student’s home institution’s dean or academic advisor.
(7) Training/Internship Placement Plan (Form DS-7002). (i) A sponsor must fully complete and obtain requisite signatures for a Form DS-7002 for each student intern before issuing a Form DS-2019. A sponsor must provide to each signatory an executed copy of the Form DS-7002. Upon request, a student intern must present his or her fully executed Form DS-7002 to a Consular Official during the visa interview.
(ii) To further distinguish between work-based learning for student interns, which is permitted, and ordinary employment or unskilled labor which is not, a T/IPP must:
(A) State the specific goals and objectives of the student internship program (for each phase or component, if applicable);
(B) Detail the knowledge, skills, or techniques to be imparted to the student intern (for each phase or component, if applicable); and
(C) Describe the methods of performance evaluation and the frequency of supervision (for each phase or component, if applicable).
(8) Program exclusions. A sponsor designated by the Department to administer a student internship program must:
(i) Not place a student intern in an unskilled or casual labor position, in a position that requires or involves child care or elder care, a position in the field of aviation, or, in clinical positions or engaging in any other kind of work that involves patient care or contact, including any work that would require student interns to provide therapy, medication, or other clinical or medical care (e.g., sports or physical therapy, psychological counseling, nursing, dentistry, veterinary medicine, social work, speech therapy, or early childhood education);
(ii) Not place a student intern in a position, occupation, or business that could bring the Exchange Visitor Program or the Department into notoriety or disrepute;
(iii) Not engage or otherwise cooperate or contract with a staffing/employment agency to recruit, screen, orient, place, evaluate, or train student interns, or in any other way involve such agencies in an Exchange Visitor Program student internship program;
(iv) Ensure that the duties of a student intern as outlined in the T/IPP will not involve more than 20 per cent clerical work, and that all tasks assigned to a student intern are necessary for the completion of the student internship program; and
(v) Ensure that all “Hospitality and Tourism” student internship programs of six months or longer contain at least three departmental or functional rotations.
§ 62.24 Teachers.
(a) Purpose. The regulations in this section govern exchange visitors who teach full-time in accredited public and private U.S. primary and secondary schools (K-12), including pre-kindergarten language immersion programs offered as regular courses of study by accredited primary schools. Programs in this category promote the interchange of U.S. and foreign teachers and enhance mutual understanding between the people of the United States and other countries. Exchange teachers sharpen their professional skills and participate in cross-cultural activities in schools and communities, and they return home after the exchange to share their experiences and increased knowledge of the United States and the U.S. educational system. Such exchanges enable foreign teachers to understand better U.S. culture, society and teaching practices at the primary and secondary levels, and enhance U.S. students’ knowledge of foreign cultures, customs and teaching approaches.
(b) Designation. The Department may, in its discretion, designate bona fide programs satisfying the objectives in paragraph (a) of this section as exchange visitor programs in the Teacher category.
(c) Definitions. In addition to those definitions set forth in § 62.2, the following definitions apply to the Teacher category of the Exchange Visitor Program:
(1) Accredited primary or accredited secondary school: Any publicly or privately operated primary or secondary institution for educating children in the United States that offers mainly academic programs and is duly accredited by the appropriate academic accrediting authority of the jurisdiction in which such institution is located.
(2) Full-time teaching: A minimum of 32 hours per week of teaching or teaching-related administrative activities.
(3) Home country school: An exchange teacher’s school in his or her country of nationality or last legal country of residence.
(4) Host school: The U.S.-accredited primary or secondary school in which a sponsor places an exchange teacher pursuant to the exchange teacher’s written acceptance of the placement.
(5) International school: A school that is so designated by its school district, state, or other applicable governing authority, or one whose curriculum focuses predominantly on international aspects of the subject matter taught and/or language immersion, or one that predominantly follows a national curriculum of a foreign country.
(6) Language immersion program: A program that is a regular course of study offered by an accredited school having sustained and enriched instruction, in a language not native to the majority of the student population, that occurs for at least fifty percent of the school day.
(7) Virtual exchange: A technology-enabled, sustained, people-to-people cross-cultural educational program that may supplement the goals of an in-person exchange and integrates global knowledge, cultural awareness, and/or foreign language into the classroom or other setting.
(d) Teacher eligibility. Foreign nationals are eligible to participate in exchange visitor programs as full-time teachers if, at the time of initial application to the sponsor, an individual making such application demonstrates to the satisfaction of the sponsor that he or she:
(1) Either:
(i) Meets the qualifications for teaching at the primary, including pre-kindergarten, or secondary levels in schools in his or her home country; is working as a teacher in his or her home country at the time of application; and has at least two years of full-time teaching experience; or
(ii) Is not working as a teacher in his or her home country at the time of application, but otherwise meets the qualifications for teaching at the primary (including pre-kindergarten) or secondary levels in schools in the home country; has had at least two years of full-time teaching experience within the past eight years; and, within 12 months of his or her application submission date for the program, has or will have completed an advanced degree (beyond a degree equivalent to a U.S. bachelor’s degree) in education or in an academic subject matter that he or she intends to teach or that is directly related to his or her teaching subject field;
(2) Possesses, at a minimum, a degree equivalent to a U.S. bachelor’s degree in either education or the academic subject field in which he or she intends to teach;
(3) Satisfies the teaching eligibility standards of the U.S. state in which he or she will teach (e.g., meets minimum educational requirements, has passed teacher training coursework at a sufficiently proficient level, has provided an evaluation of foreign teaching preparation coursework, has demonstrated the requisite prior teaching experience), to include any required criminal background or other checks;
(4) Is of good reputation and character; and
(5) Agrees to come to the United States temporarily as a full-time teacher of record in an accredited primary or secondary school. Exchange teachers may teach a variety of subjects and levels at their host school or schools, if qualified, but at the pre-kindergarten level, may teach only in language immersion programs.
(e) Teacher selection. Sponsors must screen foreign teachers carefully before accepting them for the program. In addition to the requirements set forth in § 62.10 and all security checks required by U.S. state departments of education and host schools, sponsors also must:
(1) Verify the qualifications of each foreign teacher to determine whether he or she satisfies the criteria set forth in paragraph (d) of this section;
(2) Secure references from one colleague and one current or former supervisor of each foreign teacher, attesting to that teacher’s good reputation, character and teaching skills;
(3) Verify that each selected foreign teacher applicant possesses sufficient proficiency in the English language to function in U.S. classrooms and to function on a day-to-day basis, in accordance with the provision for selection of exchange visitors set forth at § 62.10(a)(2); and
(4) Verify that each foreign teacher who is eligible for the program under paragraph (d)(1)(ii) of this section has a letter from the head of a school in another country, preferably that teacher’s home country, which states that school’s willingness to work with the exchange teacher on the cross-cultural activity component set forth in paragraph (h)(1)(ii). The foreign school with which the exchange teacher plans to work must be at the same academic level as the foreign teacher’s proposed host school. The letter submitted as part of the foreign teacher’s application package must be signed by the head of the school or another individual in an appropriate position of authority to speak for the school within the foreign country’s school system; the official signing the letter must list both email and telephone contact information. The letter may be submitted in English or in the original language of the home country with an English translation; the name, title/organization and contact information of the translator must be noted on the translation.
(f) Teaching position. Sponsors must ensure that:
(1) Forms DS-2019 are not issued until foreign teacher applicants have received and accepted written offers of full-time teaching positions from the accredited primary (including pre-kindergarten level) or secondary schools in which they will teach;
(2) Program dates coincide with the U.S. academic year cycle to ensure a smooth transition as exchange teachers arrive and depart, unless the sponsor notifies, and receives approval from, the Department for other exchange dates before the sponsor issues any Form DS-2019; sponsors should ensure that these dates are included in the exchange teacher’s contract;
(3) Exchange teachers comply with any applicable collective bargaining agreement;
(4) Exchange teacher appointments to positions within accredited primary or secondary schools are temporary, even if the teaching positions are permanent, and do not lead to tenure; exchange teachers must be employees of either the host or home school during their exchange.
(5) Teaching positions, including duties, responsibilities, hours of employment, and compensation, are commensurate with those of similarly-situated U.S. teachers in the school district or host school where that exchange teacher is assigned to teach; an exchange teacher, unless he or she is on a program where the Department is the sponsor, must be employed by and under the direct supervision and guidance of his or her host school and, where applicable, host school district; and
(6) A pre-kindergarten level exchange teacher is assigned to teach full-time in an accredited host school (or in several schools within the same host school district, including at several academic levels, with prior permission from the Department). If an exchange teacher is placed in a private school where there is no host school district, then he or she must teach a full-time schedule of at least 32 hours in a school or schools located no more than 25 miles from the main host school; in such a situation, sponsors must ensure that reasonable and effective modes of transportation exist to such additional sites of activity. An exchange teacher may teach at the pre-kindergarten level only in a language immersion program offered as regular course of study by an accredited primary school.
(g) Program disclosure. (1) As part of recruitment, in addition to the information required by § 62.10(b)-(c), sponsors must provide on their main Web sites and in their recruiting materials a general summary of fees and other costs for the program. This summary should include, but not be limited to, the sponsor fee; foreign or domestic third party or partner fees; visa fee; the Student and Exchange Visitor Information System (SEVIS) fee; insurance costs; estimates for food, housing and local transportation costs; expected work-related deductions; and estimates or ranges for all other fees charged for and significant general costs related to participation in the teacher exchange program.
(2) At the time a foreign teacher is selected for the program, and before the exchange visitor signs any contracts with the host school, sponsors and/or the host school must provide each individual exchange teacher the following information, either within the teacher’s contract or in a separate document: The name, location, and brief description of the host school; the terms and conditions of compensation (with deductions from gross salary); any provisions affecting the ability of the exchange teacher to be accompanied abroad by a spouse or dependents (including any related assistance and allowances); a summary of the significant components of the program (including a statement of the teaching requirements and related professional obligations, as well as the required cross-cultural activity component as set forth in paragraph (h) of this section); specific information on the fees and costs for which the exchange teacher will be responsible while on exchange in that school district in accordance with paragraph (g)(1); anticipated housing options and cost implications; specific local transportation options between the exchange teacher’s residence and the host school and transportation cost estimates; insurance costs for accident or illness coverage, repatriation of remains and medical evacuation as required by § 62.14; estimated personal expense money for initial costs the exchange teacher may incur upon arrival in the United States prior to receiving his or her first paycheck; certification or licensure procedures and costs at the host school; administrative fees; and any placement fees. Exchange teacher compensation, unless provided directly to the exchange teacher through government funding, through continued support from the exchange teacher’s home school, or from both the teacher’s home and host school in a shared cost arrangement, must be paid directly by the host school or host school district in which the exchange teacher is placed.
(h) Cross-cultural activity component. In addition to the requirements of § 62.10:
(1) Sponsors must require each exchange teacher to complete, within the United States, and during each academic year of program participation, at least one cross-cultural activity from each of the following two categories:
(i) An activity for the teacher’s classroom, larger host school or host school district population, or the community at large designed to give an overview of the history, traditions, heritage, culture, economy, educational system and/or other attributes of his or her home country. Sponsors of exchange teachers placed at international schools must require their exchange teachers to conduct at least one cross-cultural activity per academic year outside the host school in nearby schools or communities where international opportunities may be more limited than those found in their host school; and
(ii) An activity that involves U.S. student dialogue with schools or students in another country, preferably in the exchange teacher’s home school, through virtual exchange or other means, in order to supplement the goals of the in-person exchange.
(2) Sponsors must collect annual reports from their exchange teachers detailing the cross-cultural activity component of their exchange program. The annual report does not have to be in a specific format, but must include the exchange teacher’s full name and the program sponsor’s name. The report section about the cross-cultural activity component must contain the following information:
(i) The date(s) of each activity;
(ii) The location of each activity;
(iii) The audience for and participants in each activity;
(iv) A general overview of each activity, including the topic; and
(v) The estimated impact of each activity.
(i) Location of the exchange. Exchange teachers must participate in exchange visitor programs at the accredited primary or secondary schools listed on their Forms DS-2019 or at location(s) where the institutions are involved in official school activities (e.g., school field trips, teacher development programs);
(j) Duration of participation. Exchange teachers may be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete the program, which may not exceed three years unless a specific extension of one or two years is authorized by the Department as set forth in paragraph (k) of this section.
(k) Program extensions. (1) Sponsors may request from the Department an extension of an exchange teacher’s exchange by either one or two years, but not by a semester or by other fractions of academic years.
(2) The sponsor’s request for extension must include:
(i) A letter of reference on official letterhead written by the host school or host school district administrator responsible for overseeing the exchange teacher that describes the exchange teacher’s performance during the previous three years of the exchange and how the host school has benefited from the exchange teacher’s presence; and
(ii) a document describing how the exchange teacher over the previous three years has engaged his or her classroom, the wider host school or host school district, or community through the cross-cultural activity component, if these activities are not already detailed in the exchange teacher’s annual reports.
(3) Sponsors must submit their extension request and supporting documentation for the extension to the Department no later than three months prior to the beginning of the desired extension period for the exchange teacher.
(4) Sponsor requests for extension must include proof of payment of the required non-refundable extension fee as set forth in § 62.17.
(5) The Department, at its discretion, may authorize a sponsor to extend an exchange teacher’s participation for either one or two additional years beyond the initial three-year exchange period. Sponsors must comply with all Department guidance on creating an extension record for the teacher within SEVIS.
(6) Sponsors that applied for a two-year extension on behalf of a host school and its exchange teacher and received permission from the Department only for a one-year extension may apply again to extend the program of that host school’s exchange teacher for one additional year by following the procedures set forth in paragraphs (k)(2)-(4) of this section. The sponsor should include with such additional extension request a copy of the prior extension request submitted to enable the initial one-year extension.
(l) Repeat participation. Foreign nationals who have successfully completed teacher exchange programs are eligible to participate in additional teacher exchange programs, provided that they have resided outside the United States for at least two years following the successful completion of their most recent teacher exchange program and continue to meet the eligibility requirements set forth in paragraph (d) of this section.
§ 62.25 Secondary school students.
(a) Purpose. This section governs Department of State designated exchange visitor programs under which foreign secondary school students are afforded the opportunity to study in the United States at accredited public or private secondary schools for an academic semester or an academic year, while living with American host families or residing at accredited U.S. boarding schools.
(b) Program sponsor eligibility. Eligibility for designation as a secondary school student exchange visitor program sponsor is limited to organizations:
(1) With tax-exempt status as conferred by the Internal Revenue Service pursuant to section 501(c)(3) of the Internal Revenue Code; and
(2) Which are United States citizens as such term is defined in § 62.2.
(c) Program eligibility. Secondary school student exchange visitor programs designated by the Department of State must:
(1) Require all exchange students to be enrolled and participating in a full course of study at an accredited academic institution;
(2) Allow entry of exchange students for not less than one academic semester (or quarter equivalency) and not more than two academic semesters (or quarter equivalency) duration; and
(3) Ensure that the program is conducted on a U.S. academic calendar year basis, except for students from countries whose academic year is opposite that of the United States. Exchange students may begin an exchange program in the second semester of a U.S. academic year only if specifically permitted to do so, in writing, by the school in which the exchange student is enrolled. In all cases, sponsors must notify both the host family and school prior to the exchange student’s arrival in the United States whether the placement is for an academic semester, an academic year, or a calendar year.
(d) Program administration. Sponsors must ensure that all organizational officers, employees, representatives, agents, and volunteers acting on their behalf:
(1) Are adequately trained. Sponsors must administer training for local coordinators that specifically includes, at a minimum, instruction in: Conflict resolution; procedures for handling and reporting emergency situations; awareness or knowledge of child safety standards; information on sexual conduct codes; procedures for handling and reporting allegations of sexual misconduct or any other allegations of abuse or neglect; and the criteria to be used to screen potential host families and exercise good judgment when identifying what constitutes suitable host family placements. In addition to their own training, sponsors must ensure that all local coordinators complete the Department of State mandated training module prior to their appointment as a local coordinator or assumption of duties. The Department of State training module will include instruction designed to provide a comprehensive understanding of the Exchange Visitor Program; its public diplomacy objectives; and the Secondary School Student category rules and regulations. Sponsors must demonstrate the individual’s successful completion of all initial training requirements and that annual refresher training is also successfully completed.
(2) Are adequately supervised. Sponsors must create and implement organization-specific standard operating procedures for the supervision of local coordinators designed to prevent or deter fraud, abuse, or misconduct in the performance of the duties of these employees/agents/volunteers. They must also have sufficient internal controls to ensure that such employees/agents/volunteers comply with such standard operating procedures.
(3) Have been vetted annually through a criminal background check (which must include a search of the Department of Justice’s National Sex Offender Public Registry);
(4) Place no exchange student with his or her relatives;
(5) Make no exchange student placement beyond 120 miles of the home of the local coordinator authorized to act on the sponsor’s behalf in both routine and emergency matters arising from that exchange student’s participation in the Exchange Visitor Program;
(6) Make no monetary payments or other incentives to host families;
(7) Provide exchange students with reasonable access to their natural parents and family by telephone and e-mail;
(8) Make certain that the exchange student’s government issued documents (i.e., passports, Forms DS-2019) are not removed from his/her possession;
(9) Conduct the host family orientation after the host family has been fully vetted and accepted;
(10) Refrain, without exception, from acting as:
(i) Both a host family and a local coordinator or area supervisor for an exchange student;
(ii) A host family for one sponsor and a local coordinator for another sponsor; or
(iii) A local coordinator for any exchange student over whom he/she has a position of trust or authority such as the student’s teacher or principal. This requirement is not applicable to a boarding school placement.
(11) Maintain, at minimum, a monthly schedule of personal contact with the exchange student. The first monthly contact between the local coordinator and the exchange student must be in person. All other contacts may take place in-person, on the phone, or via electronic mail and must be properly documented. The sponsor is responsible for ensuring that issues raised through such contacts are promptly and appropriately addressed.
(12) That a sponsor representative other than the local coordinator who recruited, screened and selected the host family visit the exchange student/host family home within the first or second month following the student’s placement in the home.
(13) Maintain, at a minimum, a monthly schedule of personal contact with the host family. At least once during the fall semester and at least once during the spring semester, (i.e., twice during the academic year) the contact by the local coordinator with the host family must be in person. All other contacts may take place in person, on the phone, or via electronic mail and must be properly documented. The sponsor is responsible for ensuring the issues raised through such contacts are promptly and appropriately addressed.
(14) That host schools are provided contact information for the local organizational representative (including name, direct phone number, and e-mail address), the program sponsor, and the Department’s Office of Designation; and
(15) Adhere to all regulatory provisions set forth in this part and all additional terms and conditions governing program administration that the Department may impose.
(e) Student selection. In addition to satisfying the requirements of § 62.10(a), sponsors must ensure that all participants in a designated secondary school student exchange visitor program:
(1) Are secondary school students in their home countries who have not completed more than 11 years of primary and secondary study, exclusive of kindergarten; or are at least 15 years of age, but not more than 18 years and six months of age as of the program start date;
(2) Demonstrate maturity, good character, and scholastic aptitude; and
(3) Have not previously participated in an academic year or semester secondary school student exchange program in the United States or attended school in the United States in either F-1 or J-1 visa status.
(f) Student enrollment. (1) Sponsors must secure prior written acceptance for the enrollment of any exchange student in a United States public or private secondary school. Such prior acceptance must:
(i) Be secured from the school principal or other authorized school administrator of the school or school system that the exchange student will attend; and
(ii) Include written arrangements concerning the payment of tuition or waiver thereof if applicable.
(2) Under no circumstance may a sponsor facilitate the entry into the United States of an exchange student for whom a written school placement has not been secured.
(3) Under no circumstance may a sponsor charge a student private school tuition if such arrangements are not finalized in writing prior to the issuance of Form DS-2019.
(4) Sponsors must maintain copies of all written acceptances for a minimum of three years and make such documents available for Department of State inspection upon request.
(5) Sponsors must provide the school with a translated “written English language summary” of the exchange student’s complete academic course work prior to commencement of school, in addition to any additional documents the school may require. Sponsors must inform the prospective host school of any student who has completed secondary school in his/her home country.
(6) Sponsors may not facilitate the enrollment of more than five exchange students in one school unless the school itself has requested, in writing, the placement of more than five students from the sponsor.
(7) Upon issuance of a Form DS-2019 to a prospective participant, the sponsor accepts full responsibility for securing a school and host family placement for the student, except in cases of voluntary student withdrawal or visa denial.
(g) Student orientation. In addition to the orientation requirements set forth at § 62.10, all sponsors must provide exchange students, prior to their departure from their home countries, with the following information:
(1) A summary of all operating procedures, rules, and regulations governing student participation in the exchange visitor program along with a detailed summary of travel arrangements;
(2) A copy of the Department’s welcome letter to exchange students;
(3) Age and language appropriate information on how to identify and report sexual abuse or exploitation;
(4) A detailed profile of the host family with whom the exchange student will be placed. The profile must state whether the host family is either a permanent placement or a temporary-arrival family;
(5) A detailed profile of the school and community in which the exchange student will be placed. The profile must state whether the student will pay tuition; and
(6) An identification card, that lists the exchange student’s name, United States host family placement address and telephone numbers (landline and cellular), sponsor name and main office and emergency telephone numbers, name and telephone numbers (landline and cellular) of the local coordinator and area representative, the telephone number of Department’s Office of Designation, and the Secondary School Student program toll free emergency telephone number. The identification card must also contain the name of the health insurance provider and policy number. Such cards must be corrected, reprinted, and reissued to the student if changes in contact information occur due to a change in the student’s placement.
(h) Student extra-curricular activities. Exchange students may participate in school sanctioned and sponsored extra-curricular activities, including athletics, if such participation is:
(1) Authorized by the local school district in which the student is enrolled; and
(2) Authorized by the state authority responsible for determination of athletic eligibility, if applicable. Sponsors shall not knowingly be party to a placement (inclusive of direct placements) based on athletic abilities, whether initiated by a student, a natural or host family, a school, or any other interested party.
(3) Any placement in which either the student or the sending organization in the foreign country is party to an arrangement with any other party, including receiving school personnel, whereby the student will attend a particular school or live with a particular host family must be reported to the particular school and the National Federation of State High School Associations prior to the first day of classes.
(i) Student employment. Exchange students may not be employed on either a full or part-time basis but may accept sporadic or intermittent employment such as babysitting or yard work.
(j) Host family application and selection. Sponsors must adequately screen and select all potential host families and at a minimum must:
(1) Provide potential host families with a detailed summary of the Exchange Visitor Program and of their requirements, obligations and commitment to host;
(2) Utilize a standard application form developed by the sponsor that includes, at a minimum, all data fields provided in Appendix F, “Information to be Collected on Secondary School Student Host Family Applications”. The form must include a statement stating that: “The income data collected will be used solely for the purposes of determining that the basic needs of the exchange student can be met, including three quality meals and transportation to and from school activities.” Such application form must be signed and dated at the time of application by all potential host family applicants. The host family application must be designed to provide a detailed summary and profile of the host family, the physical home environment (to include photographs of the host family home’s exterior and grounds, kitchen, student’s bedroom, bathroom, and family or living room), family composition, and community environment. Exchange students are not permitted to reside with their relatives.
(3) Conduct an in-person interview with all family members residing in the home where the student will be living;
(4) Ensure that the host family is capable of providing a comfortable and nurturing home environment and that the home is clean and sanitary; that the exchange student’s bedroom contains a separate bed for the student that is neither convertible nor inflatable in nature; and that the student has adequate storage space for clothes and personal belongings, reasonable access to bathroom facilities, study space if not otherwise available in the house and reasonable, unimpeded access to the outside of the house in the event of a fire or similar emergency. An exchange student may share a bedroom, but with no more than one other individual of the same sex.
(5) Ensure that the host family has a good reputation and character by securing two personal references from within the community from individuals who are not relatives of the potential host family or representatives of the sponsor (i.e., field staff or volunteers), attesting to the host family’s good reputation and character;
(6) Ensure that the host family has adequate financial resources to undertake hosting obligations and is not receiving needs-based government subsidies for food or housing;
(7) Verify that each member of the host family household 18 years of age and older, as well as any new adult member added to the household, or any member of the host family household who will turn eighteen years of age during the exchange student’s stay in that household, has undergone a criminal background check (which must include a search of the Department of Justice’s National Sex Offender Public Registry);
(8) Maintain a record of all documentation on a student’s exchange program, including but not limited to application forms, background checks, evaluations, and interviews, for all selected host families for a period of three years following program completion; and
(9) Ensure that a potential single adult host parent without a child in the home undergoes a secondary level review by an organizational representative other than the individual who recruited and selected the applicant. Such secondary review should include demonstrated evidence of the individual’s friends or family who can provide an additional support network for the exchange student and evidence of the individual’s ties to his/her community. Both the exchange student and his or her natural parents must agree in writing in advance of the student’s placement with a single adult host parent without a child in the home.
(k) Host family orientation. In addition to the orientation requirements set forth in § 62.10, sponsors must:
(1) Inform all host families of the philosophy, rules, and regulations governing the sponsor’s exchange visitor program, including examples of “best practices” developed by the exchange community;
(2) Provide all selected host families with a copy of the Department’s letter of appreciation to host families;
(3) Provide all selected host families with a copy of Department of State-promulgated Exchange Visitor Program regulations;
(4) Advise all selected host families of strategies for cross-cultural interaction and conduct workshops to familiarize host families with cultural differences and practices; and
(5) Advise host families of their responsibility to inform the sponsor of any and all material changes in the status of the host family or student, including, but not limited to, changes in address, finances, employment and criminal arrests.
(l) Host family placement. (1) Sponsors must secure, prior to the student’s departure from his or her home country, a permanent or arrival host family placement for each exchange student participant. Sponsors may not:
(i) Facilitate the entry into the United States of an exchange student for whom a host family placement has not been secured;
(ii) Place more than one exchange student with a host family without the express prior written consent of the host family, the natural parents, and the students being placed. Under no circumstance may more than two exchange students be placed with a host family, or in the home of a local coordinator, regional coordinator, or volunteer. Sponsors may not place students from the same countries or with the same native languages in a single home.
(2) Prior to the student’s departure from his or her home country, sponsors must advise both the exchange student and host family, in writing, of the respective family compositions and backgrounds of each, whether the host family placement is a permanent or arrival placement, and facilitate and encourage the exchange of correspondence between the two.
(3) In the event of unforeseen circumstances that necessitate a change of host family placement, the sponsor must document the reason(s) necessitating such change and provide the Department of State with an annual statistical summary reflecting the number and reason(s) for such change in host family placement in the program’s annual report.
(m) Advertising and marketing for the recruitment of host families. In addition to the requirements set forth in § 62.9 in advertising and promoting for host family recruiting, sponsors must:
(1) Utilize only promotional materials that professionally, ethically, and accurately reflect the sponsor’s purposes, activities, and sponsorship;
(2) Not publicize the need for host families via any public media with announcements, notices, advertisements, etc. that are not sufficiently in advance of the exchange student’s arrival, appeal to public pity or guilt, imply in any way that an exchange student will be denied participation if a host family is not found immediately, or identify photos of individual exchange students and include an appeal for an immediate family;
(3) Not promote or recruit for their programs in any way that compromises the privacy, safety or security of participants, families, or schools. Specifically, sponsors shall not include personal student data or contact information (including addresses, phone numbers or email addresses) or photographs of the student on Web sites or in other promotional materials; and
(4) Ensure that access to exchange student photographs and personally identifying information, either online or in print form, is only made available to potential host families who have been fully vetted and selected for program participation. Such information, if available online, must also be password protected.
(n) Reporting requirements. Along with the annual report required by regulations set forth at § 62.15, sponsors must file with the Department of State the following information:
(1) Sponsors must immediately report to the Department any incident or allegation involving the actual or alleged sexual exploitation or any other allegations of abuse or neglect of an exchange student. Sponsors must also report such allegations as required by local or state statute or regulation. Failure to report such incidents to the Department and, as required by state law or regulation, to local law enforcement authorities shall be grounds for the suspension and revocation of the sponsor’s Exchange Visitor Program designation;
(2) A report of all final academic year and semester program participant placements by August 31 for the upcoming academic year or January 15 for the Spring semester and calendar year. The report must be in the format directed by the Department and must include at a minimum, the exchange student’s full name, Form DS-2019 number (SEVIS ID #), host family placement (current U.S. address), school (site of activity) address, the local coordinator’s name and zip code, and other information the Department may request; and
(3) A report of all situations which resulted in the placement of an exchange student with more than one host family or in more than one school. The report must be in a format directed by the Department and include, at a minimum, the exchange student’s full name, Form DS-019 number (SEVIS ID #), host family placements (current U.S. address), schools (site of activity address), the reason for the change in placement, and the date of the move. This report is due by July 31 for the previous academic school year.
§ 62.26 Specialists.
(a) Introduction. These regulations govern experts in a field of specialized knowledge or skill coming to the United States for observing, consulting, or demonstrating special skills, except:
(1) Research scholars and professors, who are governed by regulations set forth at § 62.20;
(2) Short-term scholars, who are governed by regulations set forth at § 62.21; and
(3) Alien physicians in graduate medical education or training, who are governed by regulations set forth in § 62.27.
(b) Purpose. The Exchange Visitor Program promotes the interchange of knowledge and skills among foreign and American specialists, who are defined as experts in a field of specialized knowledge or skills, and who visit the United States for the purpose of observing, consulting, or demonstrating their special skills. It does so by providing foreign specialists the opportunity to observe American institutions and methods of practice in their professional fields, and to share their specialized knowledge with their American colleagues. The exchange of specialists promotes mutual enrichment, and furthers linkages among scientific institutions, government agencies, museums, corporations, libraries, and similar types of institutions. Such exchanges also enable visitors to better understand American culture and society and enhance American knowledge of foreign cultures and skills. This category is intended for exchanges with experts in such areas, for example, as mass media communication, environmental science, youth leadership, international educational exchange, museum exhibitions, labor law, public administration, and library science. This category is not intended for experts covered by the exchange visitor categories listed in paragraphs (a) (1) through (3) of this section.
(c) Designation. The Department of State may, in its discretion, designate bona fide programs satisfying the objectives in section (b) above as an exchange visitor program in the specialist category.
(d) Visitor eligibility. A foreign national shall be eligible to participate in an exchange visitor program as a specialist if the individual:
(1) Is an expert in a field of specialized knowledge or skill;
(2) Seeks to travel to the United States for the purpose of observing, consulting, or demonstrating his or her special knowledge or skills; and
(3) Does not fill a permanent or long-term position of employment while in the United States.
(e) Visitor selection. Sponsors shall adequately screen and select specialists prior to accepting them for the program, providing a formal selection process, including at a minimum:
(1) Evaluation of the qualifications of foreign nationals to determine whether they meet the definition of specialist as set forth in § 62.4(g); and
(2) Screening foreign nationals to ensure that the requirements of § 62.10(a) are satisfied.
(f) Program disclosure. Before the program begins, the sponsor shall provide the specialist, in addition to what is required in § 62.10(b), with:
(1) Information on the length and location(s) of his or her exchange visitor program;
(2) A summary of the significant components of the program; and
(3) A written statement which clearly states the stipend, if any, to be paid to the specialist.
(g) Issuance of Form IAP-66. The Form DS-2019 shall be issued only after the specialist has been accepted by the organization(s) with which he or she will participate in an exchange visitor program.
(h) Location of the exchange. The specialist shall participate in an exchange visitor program at the location(s) listed on his or her Form DS-2019.
(i) Duration of participation. The specialist shall be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete the program, which shall not exceed one year.
§ 62.27 Alien physicians.
(a) Purpose. Pursuant to the Mutual Educational and Cultural Exchange Act, as amended by the Health Care Professions Act, Public Law 94-484, the Department of State facilitates exchanges for foreign medical graduates seeking to pursue graduate medical education or training at accredited schools of medicine or scientific institutions. The Department of State also facilitates exchanges of foreign medical graduates seeking to pursue programs involving observation, consultation, teaching, or research activities.
(b) Clinical exchange programs. The Educational Commission for Foreign Medical Graduates must sponsor alien physicians who wish to pursue programs of graduate medical education or training conducted by accredited U.S. schools of medicine or scientific institutions. Such Foreign Medical Graduates shall:
(1) Have adequate prior education and training to participate satisfactorily in the program for which they are coming to the United States;
(2) Be able to adapt to the educational and cultural environment in which they will be receiving their education or training;
(3) Have the background, needs, and experiences suitable to the program as required in § 62.10(a)(1);
(4) Have competency in oral and written English;
(5) Have passed either Parts I and II of the National Board of Medical Examiners Examination, the Foreign Medical Graduate Examination in the Medical Sciences, the United States Medical Licensing Examination, Step I and Step II, or the Visa Qualifying Examination (VQE) prepared by the National Board of Medical Examiners, administered by the Educational Commission for Foreign Medical Graduates. [NB – Graduates of a school of medicine accredited by the Liaison Committee on Medical Education are exempted by law from the requirement of passing either Parts I and II of the National Board of Medical Examiners Examination or the Visa Qualifying Examination (VQE)]; and
(6) Provide a statement of need from the government of the country of their nationality or last legal permanent residence. Such statement must provide written assurance, satisfactory to the Secretary of Health and Human Services, that there is a need in that country for persons with the skills the alien physician seeks to acquire and shall be submitted to the Educational Commission for Foreign Medical Graduates by the participant’s government. The statement of need must bear the seal of the concerned government and be signed by a duly designated official of the government. The text of such statement of need shall read as follows:
Name of applicant for Visa: ______. There currently exists in (Country) a need for qualified medical practitioners in the speciality of ______. (Name of applicant for Visa) has filed a written assurance with the government of this country that he/she will return to this country upon completion of training in the United States and intends to enter the practice of medicine in the specialty for which training is being sought. Stamp (or Seal and signature) of issuing official of named country.
(7) Submit an agreement or contract from a U.S. accredited medical school, an affiliated hospital, or a scientific institution to provide the accredited graduate medical education. The agreement or contract must be signed by both the alien physician and the official responsible for the training.
(c) Non-clinical exchange programs. (1) A United States university or academic medical center which has been designated an exchange visitor program by the Secretary of State of the Department of State is authorized to issue From DS-2019 to alien physicians to enable them to come to the United States for the purposes of observation, consultation, teaching, or research if:
(i) The responsible officer or duly designated alternate of the exchange visitor program involved signs and appends to the Form DS-2019 a certification which states “this certifies that the program in which (name of physician) is to be engaged is solely for the purpose of observation, consultation, teaching, or research and that no element of patient care is involved” or
(ii) The dean of the involved accredited United States medical school or his or her designee certifies to the following five points and such certification is appended to the Form DS-2019 issued to the perspective exchange visitor alien physician:
(A) The program in which (name of physician) will participate is predominantly involved with observation, consultation, teaching, or research.
(B) Any incidental patient contact involving the alien physician will be under the direct supervision of a physician who is a U.S. citizen or resident alien and who is licensed to practice medicine in the State of ______.
(C) The alien physician will not be given final responsibility for the diagnosis and treatment of patients.
(D) Any activities of the alien physician will conform fully with the State licensing requirements and regulations for medical and health care professionals in the State in which the alien physician is pursuing the program.
(E) Any experience gained in this program will not be creditable towards any clinical requirements for medical specialty board certification.
(2) The Educational Commission for Foreign Medical Graduates may also issue Form DS-2019 to alien physicians who are coming to the United States to participate in a program of observation, consultation, teaching, or research provided the required letter of certification as outlined in this paragraph is appended to the Form DS-2019.
(d) Public health and preventive medicine programs. A United States university, academic medical center, school of public health, or other public health institution which has been designated as an exchange visitor program sponsor by the Secretary of State of the Department of State is authorized to issue Forms DS-2019 to alien physicians to enable them to come to the United States for the purpose of entering into those programs which do not include any clinical activities involving direct patient care. Under these circumstances, the special eligibility requirements listed in paragraphs (b) and (c) of this section need not be met. The responsible officer or alternate responsible officer of the exchange visitor program involved shall append a certification to the Form DS-2019 which states.
This certifies that the program in which (name of physician) is to be engaged does not include any clinical activities involving direct patient care.
(e) Duration of participation. (1) The duration of an alien physician’s participation in a program of graduate medical education or training as described in paragraph (b) of this section is limited to the time typically required to complete such program. Duration shall be determined by the Secretary of State at the time of the alien physician’s entry into the United States. Such determination shall be based on criteria established in coordination with the Secretary of Health and Human Services and which take into consideration the requirements of the various medical specialty boards as set forth by the Accreditation Council for Graduate Medical Education (ACGME).
(2) Duration of participation is limited to seven years unless the alien physician has demonstrated to the satisfaction of the Secretary of State that the country to which the alien physician will return at the end of additional specialty education or training has an exceptional need for an individual with such additional qualification.
(3) Subject to the limitations set forth above, duration of participation may, for good cause shown, be extended beyond the period of actual training or education to include the time necessary to take an examination required for certification by a specialty board.
(4) The Secretary of State may include within the duration of participation a period of supervised medical practice in the United States if such practice is an eligibility requirement for certification by a specialty board.
(i) Alien physicians shall be permitted to undertake graduate medical education or training in a specialty or subspecialty program whose board and/or accreditation requirements are not published if the program requirements are certified to the Secretary of State by the ACGME in accordance with criteria established by the Educational Commission for Foreign Medical Graduates (ECFMG) and ACGME.
(ii) The Secretary of State may, for good cause shown, grant an extension of the program to permit an alien physician to repeat one year of clinical medical training.
(5) The alien physician must furnish the Attorney General each year with an affidavit (Form I-644) that attests the alien physician:
(i) Is in good standing in the program of graduate medical education or training in which the alien physician is participating; and
(ii) Will return to the country of his nationality or last legal permanent resident upon completion of the education or training for which he came to the United States.
(f) Change of program. The alien physician may, once and not later than two years after the date the alien physician enters the United States as an exchange visitor or acquires exchange visitor status, change his designated program of graduate medical education or training if the Secretary of State approves the change and if the requirements of paragraphs (b) and (e) of this section are met for the newly designated specialty.
(g) Applicability of section 212(e) of the Immigration and Nationality Act. (1) Any exchange visitor physician coming to the United States on or after January 10, 1977 for the purpose of receiving graduate medical education or training is automatically subject to the two-year home-country physical presence requirement of section 212(e) of the Immigration and Nationality Act, as amended. Such physicians are not eligible to be considered for section 212(e) waivers on the basis of “No Objection” statements issued by their governments.
(2) Alien physicians coming to the United States for the purpose of observation, consultation, teaching, or research are not automatically subject to the two-year home-country physical presence requirement of section 212(e) of the Immigration and Nationality Act, as amended, but may be subject to this requirement if they are governmentally financed or pursuing a field of study set forth on their countries’ Exchange Visitor Skills List. Such alien physicians are eligible for consideration of waivers under section 212(e) of the Immigration and Nationality Act, as amended, on the basis of “No Objection” statements submitted by their governments in their behalf through diplomatic channels to the Secretary of State of the Department of State.
§ 62.28 International visitors.
(a) Purpose. The international visitor category is for the exclusive use of the Department of State. Programs under this section are for foreign nationals who are recognized or potential leaders and are selected by the Department of State to participate in observation tours, discussions, consultation, professional meetings, conferences, workshops, and travel. These programs are designed to enable the international visitors to better understand American culture and society and contribute to enhanced American knowledge of foreign cultures. The category is for people-to-people programs which seek to develop and strengthen professional and personal ties between key foreign nationals and Americans and American institutions.
(b) Selection. The Department of State and third parties assisting the Department of State shall adequately screen and select prospective international visitors to determine compliance with § 62.10(a) and the visitor eligibility requirements set forth below.
(c) Visitor eligibility. An individual participating in an exchange visitor program as an international visitor shall be:
(1) Selected by the Department of State;
(2) Engaged in consultation, observation, research, training, or demonstration of special skills; and
(3) A recognized or potential leader in a field of specialized knowledge or skill.
(d) Program disclosure. At the beginning of the program, the sponsor shall provide the international visitor with:
(1) Information on the length and location(s) of his or her exchange visitor program; and
(2) A summary of the significant components of the program.
(e) Issuance of Form DS-2019. The Form DS-2019 shall be issued only after the international visitor has been selected by the Department of State.
(f) Location of the exchange. The international visitor shall participate in an exchange visitor program at locations approved by the Department of State.
(g) Duration of participation. The international visitor shall be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete the program, which shall not exceed one year.
§ 62.29 Government visitors.
(a) Purpose. The government visitor category is for the exclusive use of the U.S. federal, state, or local government agencies. Programs under this section are for foreign nationals who are recognized as influential or distinguished persons, and are selected by U.S. federal, state, or local government agencies to participate in observation tours, discussions, consultation, professional meetings, conferences, workshops, and travel. These are people-to-people programs designed to enable government visitors to better understand American culture and society, and to contribute to enhanced American knowledge of foreign cultures. The objective is to develop and strengthen professional and personal ties between key foreign nationals and Americans and American institutions. The government visitor programs are for such persons as editors, business and professional persons, government officials, and labor leaders.
(b) Designation. The Department of State may, in its sole discretion, designate as sponsors U.S. federal, state, and local government agencies which offer foreign nationals the opportunity to participate in people-to-people programs which promote the purpose as set forth in (a) above.
(c) Selection. Sponsors shall adequately screen and select prospective government visitors to determine compliance with § 62.10(a) and the visitor eligibility requirements set forth below.
(d) Visitor eligibility. An individual participating in an exchange visitor program as a government visitor shall be:
(1) Selected by a U.S. federal, state, and local government agency;
(2) Engaged in consultation, observation, training, or demonstration of special skills; and
(3) An influential or distinguished person.
(e) Program disclosure. Before the beginning of the program, the sponsor shall provide the government visitor with:
(1) Information on the length and location(s) of his or her exchange visitor program;
(2) A summary of the significant components of the program; and
(3) A written statement which clearly states the stipend, if any, to be paid to the government visitor.
(f) Issuance of Form DS-2019. The Form DS-2019 shall be issued only after the government visitor has been selected by a U.S. federal, state, or local government agency and accepted by the private and/or public organization(s) with whom he or she will participate in the exchange visitor program.
(g) Location of the exchange. The government visitor shall participate in an exchange visitor program at the locations listed on his or her Form DS-2019.
(h) Duration of participation. The government visitor shall be authorized to participate in the Exchange Visitor Program for the length of time necessary to complete the program, which shall not exceed eighteen months.
§ 62.30 Camp counselors.
(a) Introduction. In order to promote diverse opportunities for participation in educational and cultural exchange programs, the Department of State designates exchange sponsors to facilitate the entry of foreign nationals to serve as counselors in U.S. summer camps. These programs promote international understanding by improving American knowledge of foreign cultures while enabling foreign participants to increase their knowledge of American culture. The foreign participants are best able to carry out this objective by serving as counselors per se, that is, having direct responsibility for supervision of groups of American youth and of activities that bring them into interaction with their charges. While it is recognized that some non-counseling chores are an essential part of camp life for all counselors, this program is not intended to assist American camps in bringing in foreign nationals to serve as administrative personnel, cooks, or menial laborers, such as dishwashers or janitors.
(b) Participant eligibility. Participation in camp counselor exchange programs is limited to foreign nationals who:
(1) Are at least 18 years of age;
(2) Are bona fide youth workers, students, teachers, or individuals with specialized skills; and
(c) Participant selection. In addition to satisfying the requirements in § 62.10(a), sponsors shall adequately screen all international candidates for camp counselor programs and at a minimum:
(1) Conduct an in-person interview; and
(2) Secure references from a participant’s employer or teacher regarding his or her suitability for participation in a camp counselor exchange.
(d) Participant orientation. Sponsors shall provide participants, prior to their departure from the home country, detailed information regarding:
(1) Duties and responsibilities relating to their service as a camp counselor;
(2) Contractual obligations relating to their acceptance of a camp counselor position; and
(3) Financial compensation for their service as a camp counselor.
(e) Participant placements. Sponsors shall place eligible participants at camping facilities which are:
(1) Accredited;
(2) A member in good standing of the American Camping Association;
(3) Officially affiliated with a nationally recognized non-profit organization; or
(4) Have been inspected, evaluated, and approved by the sponsor.
(f) Participant compensation. Sponsors shall ensure that international participants receive pay and benefits commensurate with those offered to their American counterparts.
(g) Participant supervision. Sponsors shall provide all participants with a phone number which allows 24 hour immediate contact with the sponsor.
(h) Program administration. Sponsors shall:
(1) Comply with all provisions set forth in subpart A of this part;
(2) Not facilitate the entry of any participant for a program of more than four months duration; and
(3) Under no circumstance facilitate the entry into the United States of a participant for whom a camp placement has not been pre-arranged.
(i) Placement report. In lieu of listing the name and address of the camp facility at which the participant is placed on Form DS-2019, sponsors shall submit to the Department of State, no later than July 1st of each year, a report of all participant placements. Such report shall reflect the participant’s name, camp placement, and the number of times the participant has previously participated in a camp counselor exchange.
(j) In order to ensure that as many different individuals as possible are recruited for participation in camp counselor programs, sponsors shall limit the number of participants who have previously participated more than once in any camp counselor exchange to not more than ten percent of the total number of participants that the sponsor placed in the immediately preceding year.
§ 62.31 Au pairs.
(a) Introduction. This section governs Department of State-designated exchange visitor programs under which foreign nationals are afforded the opportunity to live with an American host family and participate directly in the home life of the host family. All au pair participants provide child care services to the host family and attend a U.S. post-secondary educational institution. Au pair participants provide up to forty-five hours of child care services per week and pursue not less than six semester hours of academic credit or its equivalent during their year of program participation. Au pairs participating in the EduCare program provide up to thirty hours of child care services per week and pursue not less than twelve semester hours of academic credit or its equivalent during their year of program participation.
(b) Program designation. The Department of State may, in its sole discretion, designate bona fide programs satisfying the objectives set forth in paragraph (a) of this section. Such designation shall be for a period of two years and may be revoked by the Department of State for good cause.
(c) Program eligibility. Sponsors designated by the Department of State to conduct an au pair exchange program shall;
(1) Limit the participation of foreign nationals in such programs to not more than one year;
(2) Limit the number of hours an EduCare au pair participant is obligated to provide child care services to not more than 10 hours per day or more than 30 hours per week and limit the number of hours all other au pair participants are obligated to provide child care services to not more than 10 hours per day or more than 45 hours per week;
(3) Require that EduCare au pair participants register and attend classes offered by an accredited U.S. post-secondary institution for not less than twelve semester hours of academic credit or its equivalent and that all other au pair participants register and attend classes offered by an accredited U.S. post-secondary institution for not less than six semester hours of academic credit or its equivalent;
(4) Require that all officers, employees, agents, and volunteers acting on their behalf are adequately trained and supervised;
(5) Require that the au pair participant is placed with a host family within one hour’s driving time of the home of the local organizational representative authorized to act on the sponsor’s behalf in both routine and emergency matters arising from the au pair’s participation in their exchange program;
(6) Require that each local organizational representative maintain a record of all personal monthly contacts (or more frequently as required) with each au pair and host family for which he or she is responsible and issues or problems discussed;
(7) Require that all local organizational representatives contact au pair participants and host families twice monthly for the first two months following a placement other than the initial placement for which the au pair entered the United States.
(8) Require that local organizational representatives not devoting their full time and attention to their program obligations are responsible for no more than fifteen au pairs and host families; and
(9) Require that each local organizational representative is provided adequate support services by a regional organizational representative.
(d) Au pair selection. In addition to satisfying the requirements of § 62.10(a), sponsors shall ensure that all participants in a designated au pair exchange program:
(1) Are between the ages of 18 and 26;
(2) Are a secondary school graduate, or equivalent;
(3) Are proficient in spoken English;
(4) Are capable of fully participating in the program as evidenced by the satisfactory completion of a physical;
(5) Have been personally interviewed, in English, by an organizational representative who shall prepare a report of the interview which shall be provided to the host family; and
(6) Have successfully passed a background investigation that includes verification of school, three, non-family related personal and employment references, a criminal background check or its recognized equivalent and a personality profile. Such personality profile will be based upon a psychometric test designed to measure differences in characteristics among applicants against those characteristics considered most important to successfully participate in the au pair program.
(e) Au pair placement. Sponsors shall secure, prior to the au pair’s departure from the home country, a host family placement for each participant. Sponsors shall not:
(1) Place an au pair with a family unless the family has specifically agreed that a parent or other responsible adult will remain in the home for the first three days following the au pair’s arrival;
(2) Place an au pair with a family having a child aged less than three months unless a parent or other responsible adult is present in the home;
(3) Place an au pair with a host family having children under the age of two, unless the au pair has at least 200 hours of documented infant child care experience. An au pair participating in the EduCare program shall not be placed with a family having pre-school children in the home unless alternative full-time arrangements for the supervision of such pre-school children are in place;
(4) Place an au pair with a host family having a special needs child, as so identified by the host family, unless the au pair has specifically identified his or her prior experience, skills, or training in the care of special needs children and the host family has reviewed and acknowledged in writing the au pair’s prior experience, skills, or training so identified;
(5) Place an au pair with a host family unless a written agreement between the au pair and the host family detailing the au pair’s obligation to provide child care has been signed by both the au pair and the host family prior to the au pair’s departure from his or her home country. Such agreement shall clearly state whether the au pair is an EduCare program participant or not. Such agreement shall limit the obligation to provide child care services to not more than 10 hours per day or more than 45 hours per week unless the au pair is an EduCare participant. Such agreement shall limit the obligation of an EduCare participant to provide child care service to not more than 10 hours per day or more than 30 hours per week.
(6) Place the au pair with a family who cannot provide the au pair with a suitable private bedroom; and
(7) Place an au pair with a host family unless the host family has interviewed the au pair by telephone prior to the au pair’s departure from his or her home country.
(f) Au pair orientation. In addition to the orientation requirements set forth at § 62.10, all sponsors shall provide au pairs, prior to their departure from the home country, with the following information:
(1) A copy of all operating procedures, rules, and regulations, including a grievance process, which govern the au pair’s participation in the exchange program;
(2) A detailed profile of the family and community in which the au pair will be placed;
(3) A detailed profile of the educational institutions in the community where the au pair will be placed, including the financial cost of attendance at these institutions;
(4) A detailed summary of travel arrangements; and
(5) A copy of the Department of State’s written statement and brochure regarding the au pair program.
(g) Au pair training. Sponsors shall provide the au pair participant with child development and child safety instruction, as follows:
(1) Prior to placement with the host family, the au pair participant shall receive not less than eight hours of child safety instruction no less than 4 of which shall be infant-related; and
(2) Prior to placement with the American host family, the au pair participant shall receive not less than twenty-four hours of child development instruction of which no less than 4 shall be devoted to specific training for children under the age of two.
(h) Host family selection. Sponsors shall adequately screen all potential host families and at a minimum shall:
(1) Require that the host parents are U.S. citizens or legal permanent residents;
(2) Require that host parents are fluent in spoken English;
(3) Require that all adult family members resident in the home have been personally interviewed by an organizational representative;
(4) Require that host parents and other adults living full-time in the household have successfully passed a background investigation including employment and personal character references;
(5) Require that the host family have adequate financial resources to undertake all hosting obligations;
(6) Provide a written detailed summary of the exchange program and the parameters of their and the au pair’s duties, participation, and obligations; and
(7) Provide the host family with the prospective au pair participant’s complete application, including all references.
(i) Host family orientation. In addition to the requirements set forth at § 62.10 sponsors shall:
(1) Inform all host families of the philosophy, rules, and regulations governing the sponsor’s exchange program and provide all families with a copy of the Department of State’s written statement and brochure regarding the au pair program;
(2) Provide all selected host families with a complete copy of Department of State-promulgated Exchange Visitor Program regulations, including the supplemental information thereto;
(3) Advise all selected host families of their obligation to attend at least one family day conference to be sponsored by the au pair organization during the course of the placement year. Host family attendance at such a gathering is a condition of program participation and failure to attend will be grounds for possible termination of their continued or future program participation; and
(4) Require that the organization’s local counselor responsible for the au pair placement contacts the host family and au pair within forth-eight hours of the au pair’s arrival and meets, in person, with the host family and au pair within two weeks of the au pair’s arrival at the host family home.
(j) Wages and hours. Sponsors shall require that au pair participants:
(1) Are compensated at a weekly rate based upon 45 hours of child care services per week and paid in conformance with the requirements of the Fair Labor Standards Act as interpreted and implemented by the United States Department of Labor. EduCare participants shall be compensated at a weekly rate that is 75% of the weekly rate paid to non-EduCare participants;
(2) Do not provide more than 10 hours of child care per day, or more than 45 hours of child care in any one week. EduCare participants may not provide more than 10 hours of child care per day or more than 30 hours of child care in any one week;
(3) Receive a minimum of one and one half days off per week in addition to one complete weekend off each month; and
(4) Receive two weeks of paid vacation.
(k) Educational component. Sponsors must:
(1) Require that during their initial period of program participation, all EduCare au pair participants complete not less than 12 semester hours (or their equivalent) of academic credit in formal educational settings at accredited U.S. post-secondary institutions and that all other au pair participants complete not less than six semester hours (or their equivalent) of academic credit in formal educational settings at accredited U.S. post-secondary institutions. As a condition of program participation, host family participants must agree to facilitate the enrollment and attendance of au pairs in accredited U.S. post secondary institutions and to pay the cost of such academic course work in an amount not to exceed $1,000 for EduCare au pair participants and in an amount not to exceed $500 for all other au pair participants.
(2) Require that during any extension of program participation, all participants (i.e., Au Pair or EduCare) satisfy an additional educational requirement, as follows:
(i) For a nine or 12-month extension, all au pair participants and host families shall have the same obligation for coursework and payment therefore as is required during the initial period of program participation.
(ii) For a six-month extension, EduCare au pair participants must complete not less than six semester hours (or their equivalent) of academic credit in formal educational settings at accredited U.S. post-secondary institutions. As a condition of participation, host family participants must agree to facilitate the enrollment and attendance of au pairs at accredited U.S. post secondary institutions and to pay the cost of such academic coursework in an amount not to exceed $500. All other au pair participants must complete not less than three semester hours (or their equivalent) of academic credit in formal educational settings at accredited U.S. post-secondary institutions. As a condition of program participation, host family participants must agree to facilitate the enrollment and attendance of au pairs at accredited U.S. post secondary institutions and to pay the cost of such academic coursework in an amount not to exceed $250.
(l) Monitoring. Sponsors shall fully monitor all au pair exchanges, and at a minimum shall:
(1) Require monthly personal contact by the local counselor with each au pair and host family for which the counselor is responsible. Counselors shall maintain a record of this contact;
(2) Require quarterly contact by the regional counselor with each au pair and host family for which the counselor is responsible. Counselors shall maintain a record of this contact;
(3) Require that all local and regional counselors are appraised of their obligation to report unusual or serious situations or incidents involving either the au pair or host family; and
(4) Promptly report to the Department of State any incidents involving or alleging a crime of moral turpitude or violence.
(m) Reporting requirements. Along with the annual report required by regulations set forth at § 62.17, sponsors shall file with the Department of State the following information:
(1) A summation of the results of an annual survey of all host family and au pair participants regarding satisfaction with the program, its strengths and weaknesses;
(2) A summation of all complaints regarding host family or au pair participation in the program, specifying the nature of the complaint, its resolution, and whether any unresolved complaints are outstanding;
(3) A summation of all situations which resulted in the placement of au pair participant with more than one host family;
(4) A report by a certified public accountant, conducted pursuant to a format designated by the Department of State, attesting to the sponsor’s compliance with the procedures and reporting requirements set forth in this subpart;
(5) A report detailing the name of the au pair, his or her host family placement, location, and the names of the local and regional organizational representatives; and
(6) A complete set of all promotional materials, brochures, or pamphlets distributed to either host family or au pair participants.
(n) Sanctions. In addition to the sanctions provisions set forth at § 62.50, the Department of State may undertake immediate program revocation procedures upon documented evidence that a sponsor has failed to:
(1) Comply with the au pair placement requirements set forth in paragraph (e) of this section;
(2) Satisfy the selection requirements for each individual au pair as set forth in paragraph (d) of this section; and
(3) Enforce and monitor host family’s compliance with the stipend and hours requirements set forth in paragraph (j) of this section.
(o) Extension of program. The Department, in its sole discretion, may approve extensions for au pair participants beyond the initial 12-month program. Applications to the Department for extensions of six, nine, or 12 months, must be received by the Department not less than 30 calendar days prior to the expiration of the exchange visitor’s initial authorized stay in either the Au Pair or EduCare program (i.e., 30-calendar days prior to the program end date listed on the exchange visitor’s Form DS-2019). The request for an extension beyond the maximum duration of the initial 12-month program must be submitted electronically in the Department of Homeland Security’s Student and Exchange Visitor Information System (SEVIS). Supporting documentation must be submitted to the Department on the sponsor’s organizational letterhead and contain the following information:
(1) Au pair’s name, SEVIS identification number, date of birth, the length of the extension period being requested;
(2) Verification that the au pair completed the educational requirements of the initial program; and
(3) Payment of the required non-refundable fee (see 22 CFR 62.90) via Pay.gov.
(p) Repeat participation. A foreign national who enters the United States as an au pair Exchange Visitor Program participant and who has successfully completed his or her program is eligible to participate again as an au pair participant, provided that he or she has resided outside the United States for at least two years following completion of his or her initial au pair program.
§ 62.32 Summer work travel.
(a) Introduction. The regulations in this section (in combination with any other provisions of 22 CFR part 62, as applicable) govern participation in Summer Work Travel programs conducted by Department of State-designated sponsors pursuant to the authority granted the Department of State under Public Law 105-277.
(b) Purpose. The purpose of this program is to provide foreign college and university students with opportunities to interact with U.S. citizens, experience U.S. culture while sharing their own cultures with Americans they meet, travel in the United States, and work in jobs that require minimal training and are seasonal or temporary in order to earn funds to help defray a portion of their expenses. Employment is of a seasonal nature when the required service is tied to a certain time of the year by an event or pattern and requires labor levels above and beyond existing worker levels. Employment is of a temporary nature when an employer’s need for the duties to be performed is a one-time occurrence, a peak load need, or an intermittent need. It is the nature of employers’ needs, not the nature of the duties that is controlling.
(c) Duration of participation. Summer Work Travel participants are authorized to participate in the Exchange Visitor Program for up to four months during the long break between academic years as determined by the Department of State. Extensions of program participation are not permitted.
(d) Participant screening and selection. In addition to satisfying the requirements set forth at § 62.10(a), sponsors are solely responsible for adequately screening and making the final selection. The screening process requires that sponsors (or vetted foreign entities acting on their behalf) at a minimum must:
(1) Conduct and document interviews with potential participants either in-person or by video-conference;
(2) Verify proficiency in conversational English and reading comprehension through either recognized language tests administered by academic institutions or English language schools or through the required documented interviews;
(3) Select applicants who demonstrate their intention to participate in the cultural aspects of the Summer Work Travel Program.
(4) Confirm that at the time of application, applicants (including final year students) are enrolled full-time and pursuing studies at accredited post-secondary, classroom-based, academic institutions physically located outside of the United States and have successfully completed at least one semester, or equivalent, of post-secondary academic study.
(e) Participant orientation. In addition to satisfying the requirements set forth at § 62.10(b) and (c), sponsors must provide program participants, prior to participants’ departures from their home countries, the following information and/or documentation:
(1) A copy of the Department of State’s Summer Work Travel Participant Letter;
(2) A copy of the Department of State’s Summer Work Travel Program Brochure;
(3) The Department of State’s toll-free help line telephone number;
(4) The sponsor’s 24/7 immediate contact telephone number;
(5) Information advising participants of their obligations to notify their sponsors within ten days after they arrive in the United States and within ten days after they initially secure or change residences;
(6) Information advising participants that they may not begin working at initial, replacement, or additional jobs until their sponsors have verified the terms and conditions of such employment and fully vetted their host employers as set forth at paragraph (n) of this section;
(7) For participants with jobs secured prior to departing from selected home countries, documentation explaining the terms and conditions of such jobs and providing information about available housing and transportation to and from work;
(8) Information explaining the cultural component of the Summer Work Travel Program, including guidance on how to best experience U.S. culture and/or descriptions of cultural opportunities arranged by the sponsor; and
(9) Information explaining that sponsors will terminate the programs of participants who fail to comply with enumerated program regulations (i.e., reporting their arrivals, reporting changes of residence, not starting work at unverified jobs, responding to sponsor monthly outreach/monitoring efforts).
(f) Cultural exchange. (1) Sponsors must ensure that all participants have opportunities to work alongside U.S. citizens and interact regularly with U.S. citizens to experience U.S. culture during the workday portion of their Summer Work Travel programs; and
(2) Sponsors must ensure that all participants have opportunities to engage in cultural activities or events outside of work by planning, initializing, and carrying out events or other activities that provide participants’ exposure to U.S. culture.
(g) Participant placement. (1) Sponsors and third parties acting on their behalf may not pay or otherwise provide any incentive to employers to accept program participants for job placements with such employers.
(2) Sponsors must confirm initial, replacement, and additional jobs placements of all Summer Work Travel Program participants before participants may start work by verifying, at a minimum, the terms and conditions of such employment and fully vetting their host employers as set forth at paragraph (n) of this section. Once participants have arrived in the United States and identified initial, replacement, or additional jobs, sponsors must vet such jobs within 72 hours.
(3) Sponsors must not pose obstacles to job changes, but must offer reasonable assistance to participants wishing to change jobs regardless of whether their jobs were secured by the sponsors (direct-placed) or by the participants (self-placed).
(4) Sponsors may place participants only in jobs that:
(i) Are seasonal or temporary as defined in paragraph (b) of this section; and
(ii) Provide opportunities for regular communication and interaction with U.S. citizens and allow participants to experience U.S. culture.
(5) Sponsors may not place participants in jobs:
(i) That require licensing;
(ii) That are on the program exclusion list set forth at paragraph (h) of this section; or
(iii) For which there is another specific J visa category (e.g., Camp Counselor, Trainee, Intern).
(6) Sponsors may not place participants with staffing agencies unless the placements meet the following three criteria:
(i) Participants must be employees of and paid by the staffing agencies;
(ii) Staffing agencies must provide full-time, primary, on-site supervision of the participants;
(iii) Staffing agencies must effectively control the work sites, e.g., have hands-on management responsibility for the participants.
(7) Sponsors may not place participants with employers that fill non-seasonal or non-temporary job openings with exchange visitors with staggered vacation schedules.
(8) Sponsors must use extra caution when placing students in positions at employers in lines of business that are frequently associated with trafficking persons (e.g., modeling agencies, housekeeping, janitorial services).
(9) Sponsors must consider the availability of suitable, affordable housing (e.g., that meets local codes and ordinances) and reliable, affordable, and convenient transportation to and from work when making job placements.
(i) If employers do not provide or arrange housing and/or transportation, or if participants decline employer-provided housing or transportation, sponsors must actively and immediately assist participants with arranging appropriate housing and transportation.
(ii) If employers provide housing and/or transportation to and from work, job offers must include details of all such arrangements, including the cost to participants; whether such arrangements deduct such costs from participants’ wages; and the market value of housing and/or transportation in accordance with the Fair Labor Standards Act regulations set forth at 29 CFR part 531, if they are considered part of the compensation packages.
(10) For participants who are nationals of non-Visa Waiver Program countries and participants who are nationals of Visa Waiver Program countries with job placements screened in advance by the sponsors (direct placement) or jobs found by the participants (self-placement), prior to issuing Form DS-2019, sponsors must vet the potential employers as set forth at paragraph (n) of this section, confirm the terms and conditions of the job offers, and input complete and correct data into the Student and Exchange Visitor Information System (SEVIS) pursuant to the requirements set forth in § 62.70(f).
(11) Sponsors of applicants who are nationals of Visa Waiver Program countries and who have not secured jobs prior to departing from their home countries must:
(i) Ensure that such participants receive pre-departure information that explains how to seek employment and secure lodging in the United States, and clearly identifies the criteria for appropriate jobs set forth at paragraph (g) of this section and the categories of employment and positions that are on the program exclusion list set forth at paragraph (h) of this section;
(ii) Ensure that such participants have sufficient financial resources to support themselves during their searches for employment;
(iii) Assist participants who have not found suitable employment within one week of commencing their job searches;
(iv) Instruct participants of their obligation to notify their sponsors when they obtain job offers (and that they cannot start such jobs until the sponsors vet them); and
(v) Promptly (i.e., within 72 hours) confirm the initial jobs of such participants, at a minimum, by verifying the terms and conditions of such employment and fully vetting their host employers as set forth at paragraph (n) of this section.
(h) Program exclusions. Sponsors must not place participants:
(1) In positions that could bring notoriety or disrepute to the Exchange Visitor Program;
(2) In sales positions that require participants to purchase inventory that they must sell in order to support themselves;
(3) In domestic help positions in private homes (e.g., child care, elder care, gardener, chauffeur);
(4) As pedicab or rolling chair drivers or operators;
(5) As operators or drivers of vehicles or vessels for which drivers’ licenses are required regardless of whether they carry passengers or not;
(6) In positions related to clinical care that involves patient contact;
(7) In any position in the adult entertainment industry (including, but not limited to jobs with escort services, adult book/video stores, and strip clubs);
(8) In positions requiring work hours that fall predominantly between 10:00 p.m. and 6:00 a.m.;
(9) In positions declared hazardous to youth by the Secretary of Labor at Subpart E of 29 CFR part 570;
(10) In positions that require sustained physical contact with other people and/or adherence to the Centers for Disease Control and Prevention’s Universal Blood and Body Fluid Precautions guidelines (e.g., body piercing, tattooing, massage, manicure);
(11) In positions that are substantially commission-based and thus do not guarantee that participants will be paid minimum wage in accordance with federal and state standards;
(12) In positions involved in gaming and gambling that include direct participation in wagering and/or betting;
(13) In positions in chemical pest control, warehousing, catalogue/online order distribution centers;
(14) In positions with travelling fairs or itinerant concessionaires;
(15) In positions for which there is another specific J category (e.g., camp counselor, intern, trainee); or
(16) After November 1, 2012, in positions in the North American Industry Classification System’s (NAICS) Goods-Producing Industries occupational categories industry sectors 11, 21, 23, 31-33 numbers (set forth at http://www.bls.gov/iag/tgs/iag_index_naics.htm).
(i) Participant compensation. (1) Sponsors must inform program participants of Federal, State, and Local Minimum Wage requirements, and ensure that at a minimum, participants are compensated at the higher of:
(i) The applicable Federal, State, or Local Minimum Wage (including overtime); or
(ii) Pay and benefits commensurate with those offered to their similarly situated U.S. counterparts.
(2) Sponsors must demonstrate that participants are also compensated according to the above standards in the following (and similar) situations:
(i) The host employers provide housing and/or transportation as part of participants’ compensation, but the compensation package does not explain that the lower hourly wage reflects such benefits; or
(ii) The employers compensate participants on a “piece” basis (e.g., number of rooms cleaned). If at the end of each pay period, the participant’s earnings under the piece rate do not equal at least the amount the participant would have earned had the participant been paid the predominant local wage as provided in subparagraph (1), the participant’s pay must be supplemented at that time so that the participant’s earnings are at least as much as the required local wage as provided in subparagraph (1).
(3) Sponsors must ensure that appropriate assistance is provided to participants on an as-needed basis and that sponsors are available to participants (and host employers) to assist as facilitators, counselors, and information resources.
(j) Monitoring. Sponsors must:
(1) Maintain, at a minimum, monthly personal contacts with program participants. Such contact may be in-person, by telephone, or via exchanges of electronic mail (including a response from the participant) and must be properly documented. Sponsors must promptly and appropriately address issues affecting the participants’ health, safety, and welfare identified through such contacts; and
(2) Provide appropriate assistance to participants on an as-needed basis and be available to participants (and host employers) to assist as facilitators, counselors, and information resources.
(k) Internal controls. Sponsors must utilize organization-specific standard operating procedures for training and supervising all organization employees. In addition, sponsors must establish internal controls to ensure that employers and/or foreign entities comply with the terms of agreements with such third parties involved in the administration of the sponsors’ exchange visitor programs (i.e., affect the core programmatic functions).
(l) Sponsors’ use of third parties. (1) If sponsors utilize foreign third party entities to assist in fulfilling the core programmatic functions of screening and orientation that may be conducted outside the United States, they must first obtain written and executed agreements with such third parties. For the purpose of this section, U.S. entities operating outside the United States (or its possessions or territories) are considered foreign entities. At a minimum, these written agreements must:
(i) Outline the obligations and full relationship between the sponsors and such third parties on all matters involving the administration of the sponsors’ exchange visitor programs;
(ii) Delineate the parties’ respective responsibilities;
(iii) Include annually updated price lists for Summer Work Travel Programs marketed by the foreign entities including itemizations of all costs charged to participants;
(iv) Contain representations that such foreign entities will not engage in, permit the use of, or otherwise cooperate or contract with other third parties (including staffing or employment agencies or subcontractors) for the purpose of outsourcing any core programmatic functions of screening and orientation covered by the agreement; and
(v) Confirm that the foreign entities agree not to pay or provide incentives to employers in the United States to accept program participants for job placements.
(2) If sponsors utilize domestic third party entities to assist in fulfilling the core programmatic functions of orientation and promoting mutual understanding, they must first obtain written and executed agreements with such third parties. Domestic third parties engaged by sponsors may not engage or subcontract any other parties to assist in fulfilling these core programmatic functions. Only host employers may assist in providing orientation to program participants. At a minimum, these written agreements must:
(i) Outline the obligations and full relationship between the sponsors and such third parties on all matters involving the administration of the sponsors’ exchange visitor programs; and
(ii) Delineate the parties’ respective responsibilities.
(m) Vetting third party foreign entities. Sponsors must undertake appropriate due diligence in the review of potential overseas agents or partners (i.e., foreign entities) who assist in fulfilling the sponsors’ core programmatic functions that may be conducted outside the United States (i.e., screening and orientation) and must, at a minimum, annually review and maintain the following documentation for potential or existing foreign entities:
(1) Proof of business licensing and/or registration to enable them to conduct business in the venue(s) where they operate;
(2) Disclosure of any previous bankruptcy and of any pending legal actions or complaints against such an entity on file with local authorities;
(3) Written references from three current business associates or partner organizations;
(4) Summary of previous experience conducting J-1 Exchange Visitor Program activities;
(5) Criminal background check reports (including original and English translations) for all owners and officers of the organizations;
(6) A copy of the sponsor-approved advertising materials the foreign entities intend to use to market the sponsors’ programs (including original and English translations); and
(7) A copy of the foreign entity’s notarized recent financial statements.
(n) Vetting domestic third party entities. Annually, sponsors must undertake appropriate due diligence in the vetting of domestic third parties who assist in the promotion of mutual understanding and potential host employers.
(1) Sponsors must ensure that third parties assisting in promoting mutual understanding (i.e., providing opportunities for participants to engage in cultural activities) are reputable individuals or organizations that are qualified to perform the activities agreed to and that they have sufficient liability insurance, if appropriate. All third parties that are registered business entities must be vetted according to the host employer procedures set forth in paragraphs (n)(2)(i) through (iii) of this section.
(2) Sponsors must ensure that potential host employers are legitimate and reputable businesses by, at a minimum:
(i) Making direct contact in person or by telephone with potential employers to verify the business owners’ and/or managers’ names, telephone numbers, email addresses, street addresses, and professional activities;
(ii) Utilizing publicly available information, for example, but not limited to, state registries, advertisements, brochures, Web sites, and/or feedback from prior participants to confirm that all job offers have been made by viable business entities;
(iii) Obtaining potential host employers’ Employer Identification Numbers and copies of their current business licenses; and
(iv) Verifying the potential host employers’ Worker’s Compensation Insurance Policy or equivalent in each state where a participant will be placed or, if applicable, evidence of that state’s exemption from requirement of such coverage.
(3) At the beginning of each placement season, sponsors must confirm:
(i) The number of job placements available with host employers;
(ii) That host employers will not displace domestic U.S. workers at worksites where they will place program participants; and
(iii) That host employers have not experienced layoffs in the past 120 days and do not have workers on lockout or on strike.
(o) Host employer cooperation. Sponsors may place participants only with host employers that agree to:
(1) Make good faith efforts to provide participants the number of hours of paid employment per week as identified on their job offers and agreed to when the sponsors vetted the jobs;
(2) Pay eligible participants for overtime worked in accordance with applicable State or Federal law;
(3) Notify sponsors promptly when participants arrive at the work sites to begin their programs; when there are any changes or deviations in the job placements during the participants’ programs; when participants are not meeting the requirements of their job placements; or when participants leave their positions ahead of their planned departures;
(4) Contact sponsors immediately in the event of any emergency involving participants or any situations that impact their health, safety, or welfare; and
(5) In those instances when the employer provides housing or transportation, agree to provide suitable and acceptable accommodations and/or reliable, affordable, and convenient transportation.
(p) Reporting requirements. Sponsors must electronically comply with the following reporting requirements utilizing Department-provided templates:
(1) Submit placement reports on January 31 and July 31 of each year, identifying all Summer Work Travel Program participants who began exchange programs during the preceding six-month period. The reports must include the exchange visitors’ names, SEVIS Identification Numbers, countries of citizenship or legal permanent residence, names of host employers, and the length of time it took non-pre-placed participants to secure job placements. For participants who change jobs or have multiple jobs during their programs, the report must include all such placements;
(2) Maintain listings of all active foreign agents or partners on the Foreign Entity Report by promptly informing the Department of any additions, deletions, or changes to foreign entity information by submitting new versions of their reports that reflect all current information. Reports must include the names, addresses, and contact information, including physical and mailing addresses, telephone numbers, and email addresses of all foreign entities that assist the sponsors in fulfilling the provision of core programmatic services. Sponsors must utilize only vetted foreign entities identified in the Foreign Entity Report to assist in fulfilling the sponsors’ core programmatic functions outside the United States, and they must inform the Department promptly when and why they have cancelled contractual arrangements with foreign entities; and
(3) Submit annual participant price lists to the Department on January 31 of each year in a format approved by the Department to provide itemized breakdowns of the costs that exchange visitors must pay to both foreign agents and sponsors to participate in the Summer Work Travel Program on a country-specific (and, if appropriate, foreign agent-specific) basis.
Subpart C – Status of Exchange Visitors
§ 62.40 Termination of program participation.
(a) A sponsor shall terminate an exchange visitor’s participation in its program when the exchange visitor:
(1) Fails to pursue the activities for which he or she was admitted to the United States;
(2) Is unable to continue, unless otherwise exempted pursuant to these regulations;
(3) Violates the Exchange Visitor Program regulations and/or the sponsor’s rules governing the program, if, in the sponsor’s opinion, termination is warranted;
(4) Willfully fails to maintain the insurance coverage required under § 62.14 of these regulations; or
(b) An exchange visitor’s participation in the Exchange Visitor Program is subject to termination when he or she engages in unauthorized employment. Upon establishing such violation, the Department of State shall terminate the exchange visitor’s participation in the Exchange Visitor Program.
§ 62.41 Change of category.
(a) The Department of State may, in its discretion, permit an exchange visitor to change his or her category of exchange participation. Any change in category must be clearly consistent with and closely related to the participant’s original exchange objective and necessary due to unusual or exceptional circumstances.
(b) A request for change of category along with supporting justification must be submitted to the Department of State by the participant’s sponsor. Upon Department of State approval the sponsor shall issue to the exchange visitor a duly executed Form DS-2019 reflecting such change of category and provide a notification copy of such form to the Department of State.
(c) Requests for change of category from research scholar to student will be evaluated recognizing the fact that, in some cases, research skills can be substantially enhanced by doctoral study.
(d) An exchange visitor who applies for a change of category pursuant to these regulations is considered to be maintaining lawful status during the pendency of the application.
(e) An exchange visitor who applies for a change of category and who subsequently receives notice from the Department of State that the request has been denied is considered to be maintaining lawful status for an additional period of thirty days from the day of such notice, during which time the exchange visitor is expected to depart the country, or for a period of thirty days from expiration of the exchange visitors’ Form DS-2019, whichever is later.
§ 62.42 Transfer of program.
(a) Program sponsors may, pursuant to the provisions set forth in this section, permit an exchange visitor to transfer from one designated program to another designated program.
(b) The responsible officer of the program to which the exchange visitor is transferring:
(1) Shall verify the exchange visitor’s visa status and program eligibility;
(2) Execute the Form DS-2019; and
(3) Secure the written release of the current sponsor.
(c) Upon return of the completed Form DS-2019, the responsible officer of the program to which the exchange visitor has transferred shall provide:
(1) The exchange visitor his or her copy of the Form DS-2019; and
(2) A notification copy of such form to the Department of State.
§ 62.43 Extension of Program.
(a) Responsible officers may extend an exchange visitor’s participation in the Exchange Visitor Program up to the limit of the permissible period of participation authorized for his or her specific program category.
(b) A responsible officer extending the program of an exchange visitor shall issue to the exchange visitor a duly executed Form DS-2019 reflecting such extension and provide a notification copy of such form to the Department of State.
(c) The responsible officer seeking a program extension on behalf of an exchange visitor in excess of that authorized for his or her specific category of participation shall:
(1) Adequately document the reasons which justify such extension; and
(2) Secure the prior written approval of the Department of State for such extension.
(d) In addition to individual requests, the Department of State shall entertain requests for groups of similarly situated exchange visitors.
§ 62.45 Reinstatement to valid program status.
(a) Definitions. For purpose of this section –
You means the Responsible Officer or Alternate Responsible Officer;
Exchange visitor means the person who enters the United States on a J visa in order to participate in an exchange program designated by the Secretary of State of the Department of State.
Fails or failed maintain valid program status means the status of an exchange visitor who has completed, concluded, ceased, interrupted, graduated from, or otherwise terminated the exchange visitor’s participation in the exchange program, or who remains in the United States beyond the end date on the exchange visitor’s current Form DS-2019.
Unauthorized employment means any employment not properly authorized by you or by the Attorney General, i.e., the Immigration and Naturalization Service, prior to commencement of employment. Unauthorized employment does not include activities that are normally approvable, as described in paragraph (c)(3) of this section.
We, our, or us means the office of Exchange Visitor Program Services of the Department of State.
(b) Who is authorized to correct minor or technical infractions of the Exchange Visitor Program regulations? (1) If the exchange visitor committed a technical or minor infraction of the regulations, you are authorized to correct the exchange visitor’s records with respect to such technical or minor infractions of the regulations in this part. Your correction of such an infraction(s) returns the exchange visitor to the status quo ante, i.e., it is as if the infraction never occurred.
(2) You may only correct the exchange visitor’s record with respect to a technical or minor infraction of the regulations in this part if the exchange visitor is pursuing or intending to pursue the exchange visitor’s original program objective.
(3) You may not correct the exchange visitor’s records with respect to a technical or minor infraction of the regulations in this part if the exchange visitor has willfully failed to maintain insurance coverage during the period for which the record is being corrected; if the exchange visitor has engaged in unauthorized employment during that period, as defined in paragraph (a) of this section, of if the exchange visitor was involuntarily suspended or terminated from his or her program during the period.
(4) If the exchange visitor has failed to maintain valid program status because of a substantive violation of the regulations in this part, you must apply to us for reinstatement.
(c) What violations or infractions of the regulations in this part do we consider to be technical or minor ones, and how do you correct the record? We consider the following to be examples of technical or minor infractions which you are authorized to correct:
(1) Failure to extend the Form DS-2019 in a timely manner (i.e., prior to the end date on the current Form DS-2019) due to inadvertence or neglect on your part or on the part of the exchange visitor.
(2) Failure on the part of the exchange visitor to conclude a transfer of program prior to the end date on the current Form DS-2019 due to administrative delay or oversight, inadvertence or neglect on your part or on the part of the exchange visitor;
(3) Failure to receive your prior approval and/or an amended Form DS-2019 before accepting an honorarium or other type of payment for engaging in a normally approvable and appropriate activity. Example, a lecture, consultation, or other activity appropriate to the category which is provided by a professor, research scholar, short-term scholar or specialist without prior approval or an amended Form DS-2019 issued prior to the occurrence of the activity.
(4) You correct the record status quo ante by issuing a Form DS-2019 or by writing an authorization letter to reflect the continuity in the program or the permission to engage in the activity that a timely issued document would have reflected.
(i) Forms DS-2019 should be:
(A) Issued to show continued authorized stay without interruption;
(B) Marked in the “purpose” box with the appropriate purpose (i.e., extension, transfer, etc.) and with the additional notation of “correct the record” typed in;
(C) Dated as of the date the Form was actually executed; and,
(D) Submitted to the Department of State in the same way as any other notification.
(ii) Letters or other authorization documents should be:
(A) Issued according to the regulations in this part appropriate to the category and the activity;
(B) Marked or annotated to show “correct the record,”
(C) Dated as of the date the letter or document was actually executed; and,
(D) Attached to the exchange visitor’s Form DS-2019 and/or retained in the sponsor’s file as required by the regulations in this part for that particular type of letter or document.
(d) How do you determine if an infraction, other than those examples listed above is a technical or minor infraction? It is impossible to list every example of a technical or minor infraction. To guide you in making a determination, you are to examine the following criteria:
(1) Regardless of the reason, has the exchange visitor failed to maintain valid program status for more than 120 calendar days after the end date on the current Form DS-2019?
(2) Has the exchange visitor, by his or her actions, failed to maintain, at all relevant times, his or her original program objective?
(3) Has the exchange visitor willfully failed to comply with our insurance coverage requirements (§ 62.14)?
(4) Has the exchange visitor engaged in unauthorized employment, as that term is defined in paragraph (a) of this section?
(5) Has the exchange visitor category been involuntarily suspended or terminated from his or her program?
(6) Has an exchange visitor in the student category failed to maintain a full course of study (as defined in § 62.2) without prior consultation with you and the exchange visitor’s academic advisor?
(7) Has the exchange visitor failed to pay the fee mandated by Public Law 104-208 (the “CIPRIS” fee)?
(8) If the answer to any of the above questions is “yes,” then the infraction is not a technical or minor one and you are not authorized to reinstate the exchange visitor to valid program status.
(e) Which violations or infractions do we consider to be substantive ones requiring you to apply to us for reinstatement? The following are substantive violations or infractions of the regulations in this part by the exchange visitor which require you to apply to us for reinstatement to valid program status:
(1) Failure to maintain valid program status for more than 120 days after the end date on the current Form DS-2019;
(2) If a student, failure to maintain a full course of study (as defined in § 62.2) without prior consultation with you and the exchange visitor’s academic advisor.
(f) Which, if any, violations of the regulations in this part or other conditions preclude reinstatement and will result in a denial if application is made? We will not consider requests for reinstatement (nor should you) when an exchange visitor has:
(1) Knowingly or willfully failed to obtain or maintain the required health insurance (§ 62.14) at all times while in the United States;
(2) Engaged in unauthorized employment, as that term is defined in paragraph (a) of this section;
(3) Been suspended or terminated from the most recent exchange visitor program;
(4) Failed to maintain valid program status for more than 270 calendar days;
(5) Received a favorable recommendation from the Department of State on an application for waiver of section 212(e) of the Immigration and Nationality Act [8 U.S.C. 1182(e)]; or,
(6) Failed to pay the fee mandated by Public Law 104-208 (the “CIPRIS” fee.)
(g) What if you cannot determine which category (technical, substantive, or non-reinstatable) the violation or infraction falls within? If you cannot determine which category the violation or condition falls within, then you must, on behalf of the exchange visitor, apply to us for reinstatement.
(h) If you determine that the exchange visitor’s violation of the regulations in this part is a substantive one, how do you apply for a reinstatement to valid program status? (1) If you determine that the violation of the regulations in this part is a substantive one, and that the exchange visitor has failed to maintain valid program status for 120 days or less, you must apply to us for reinstatement of the exchange visitor to valid program status. Your application must include:
(i) All copies of the exchange visitor’s Forms DS-2019 issued to date;
(ii) A new, completed Form DS-2019, showing in Block 3 the date of the period for which reinstatement is sought, i.e., the new program end date;
(iii) A copy of the receipt showing that the Public Law 104-208 fee has been paid; and,
(iv) A written statement (and documentary information supporting such statement):
(A) Declaring that the exchange visitor is pursuing or was at all times intending to pursue the original exchange visitor program activity for which the exchange visitor was admitted to the United States; and,
(B) Showing that the exchange visitor failed to maintain valid program status due to circumstances beyond the control of the exchange visitor, or from administrative delay or oversight, inadvertence, or excusable neglect on your part or the exchange visitor’s part; or,
(C) Showing that it would be an unusual hardship to the exchange visitor if we do not grant the reinstatement to valid program status.
(2) If you determine that the violation of the regulations is a substantive one, and that the exchange visitor has failed to maintain valid program status for more than 120 days, then you must apply to us for reinstatement of the exchange visitor to valid program status. Your application must include:
(i) Copies of all the exchange visitor’s Forms DS-2019 issued to date;
(ii) A new, completed Form DS-2019, showing in Block 3 the date for which reinstatement is sought, i.e., the new program end date;
(iii) A copy of the receipt showing that the Pub. L. 104-208 fee has been paid; and,
(iv) A written statement (together with documentary evidence supporting such statement):
(A) Declaring that the exchange visitor is pursuing or was at all times intending to pursue the exchange visitor program activity for which the exchange visitor was admitted to the United States; and,
(B) Showing that the exchange visitor failed to maintain valid program status due to circumstances beyond the control of the exchange visitor, or from administrative delay or oversight, inadvertence, or excusable neglect on your part or the exchange visitor’s part; and,
(C) Showing that it would be an unusual hardship to the exchange visitor if we do not grant the reinstatement to valid program status.
(i) How will we notify you of our decision on your request for reinstatement? (1) If we deny your request for reinstatement, we will notify you by letter.
(2) If we approve your request for reinstatement, we will notify you:
(i) By stamping Box 6 on the new Form DS-2019 to show that reinstatement was granted, effective as of the date on which the application for reinstatement was received by the Exchange Visitor Program Services office; and
(ii) By returning the new Form DS-2019 for the exchange visitor.
(j) How long will it take us to act on your request for reinstatement? We will act on your request for reinstatement within forty-five days from the date on which we receive the request and supporting documentation.
(k) Are you required to notify us each time that you correct a record? No special notification is necessary. Submission of the notification copy of Form DS-2019 to the Department of State serves as notice that a record has been corrected. Following the regulations in this part in issuing a letter or document serves as correction in the sponsor’s file for those items not normally sent to the Department of State under existing notification procedures.
Subpart D – Sanctions
§ 62.50 Sanctions.
(a) Reasons for sanctions. The Department of State (Department) may impose sanctions against a sponsor upon a finding by its Office of Exchange Coordination and Designation (Office) that the sponsor has:
(1) Violated one or more provisions of this Part;
(2) Evidenced a pattern of failure to comply with one or more provisions of this Part;
(3) Committed an act of omission or commission, which has or could have the effect of endangering the health, safety, or welfare of an exchange visitor; or
(4) Otherwise conducted its program in such a way as to undermine the foreign policy objectives of the United States, compromise the national security interests of the United States, or bring the Department or the Exchange Visitor Program into notoriety or disrepute.
(b) Lesser sanctions. (1) In order to ensure full compliance with the regulations in this Part, the Department, in its discretion and depending on the nature and seriousness of the violation, may impose any or all of the following sanctions (“lesser sanctions”) on a sponsor upon a finding that the sponsor engaged in any of the acts or omissions set forth in paragraph (a) of this section:
(i) A written reprimand to the sponsor, with a warning that repeated or persistent violations of the regulations in this part may result in suspension or revocation of the sponsor’s Exchange Visitor Program designation, or other sanctions as set forth herein;
(ii) A declaration placing the exchange visitor sponsor’s program on probation, for a period of time determined by the Department in its discretion, signifying a pattern of violation of regulations such that further violations could lead to suspension or revocation of the sponsor’s Exchange Visitor Program designation, or other sanctions as set forth herein;
(iii) A corrective action plan designed to cure the sponsor’s violations; or
(iv) Up to a 15 percent (15%) reduction in the authorized number of exchange visitors in the sponsor’s program or in the geographic area of its recruitment or activity. If the sponsor continues to violate the regulations in this Part, the Department may impose subsequent additional reductions, in ten-percent (10%) increments, in the authorized number of exchange visitors in the sponsor’s program or in the geographic area of its recruitment or activity.
(2) Within ten (10) days after service of the written notice to the sponsor imposing any of the sanctions set forth in paragraph (b)(1) of this section, the sponsor may submit to the Office a statement in opposition to or mitigation of the sanction. Such statement may not exceed 20 pages in length, double-spaced and, if appropriate, may include additional documentary material. Sponsors shall include with all documentary material an index of the documents and a summary of the relevance of each document presented. Upon review and consideration of such submission, the Office may, in its discretion, modify, withdraw, or confirm such sanction. All materials the sponsor submits will become a part of the sponsor’s file with the Office.
(3) The decision of the Office is the final Department decision with regard to lesser sanctions in paragraphs (b)(1)(i) through (iv) of this section.
(c) Suspension. (1) Upon a finding that a sponsor has committed a serious act of omission or commission which has or could have the effect of endangering the health, safety, or welfare of an exchange visitor, or of damaging the national security interests of the United States, the Office may serve the sponsor with written notice of its decision to suspend the designation of the sponsor’s program for a period not to exceed one hundred twenty (120) days. Such notice must specify the grounds for the sanction and the effective date thereof, advise the sponsor of its right to oppose the suspension, and identify the procedures for submitting a statement of opposition thereto. Suspension under this paragraph need not be preceded by the imposition of any other sanction or notice.
(2)(i) Within five (5) days after service of such notice, the sponsor may submit to the Principal Deputy Assistant Secretary for Educational and Cultural Affairs (Principal Deputy Assistant Secretary, or PDAS) a statement in opposition to the Office’s decision. Such statement may not exceed 20 pages in length, double-spaced and, if appropriate, may include additional documentary material. A sponsor shall include with all documentary material an index of the documents and a summary of the relevance of each document presented. The submission of a statement in opposition to the Office’s decision will not serve to stay the effective date of the suspension.
(ii) Within five (5) days after receipt of, and upon consideration of, such opposition, the Principal Deputy Assistant Secretary shall confirm, modify, or withdraw the suspension by serving the sponsor with a written decision. Such decision must specify the grounds therefore, and advise the sponsor of the procedures for requesting review of the decision.
(iii) All materials the sponsor submits will become a part of the sponsor’s file with the Office.
(3) The procedures for review of the decision of the Principal Deputy Assistant Secretary are set forth in paragraphs (d)(3) and (4), (g), and (h) of this section, except that the submission of a request for review will not serve to stay the suspension.
(d) Revocation of designation. (1) Upon a finding of any act or omission set forth at paragraph (a) of this section, the Office may serve a sponsor with not less than thirty (30) days’ written notice of its intent to revoke the sponsor’s Exchange Visitor Program designation. Such notice must specify the grounds for the proposed sanction and its effective date, advise the sponsor of its right to oppose the proposed sanction, and identify the procedures for submitting a statement of opposition thereto. Revocation of designation under this paragraph need not be preceded by the imposition of any other sanction or notice.
(2)(i) Within ten (10) days after service of such written notice of intent to revoke designation, the sponsor may submit to the Principal Deputy Assistant Secretary a statement in opposition to or mitigation of the proposed sanction, which may include a request for a meeting.
(ii) The submission of such statement will serve to stay the effective date of the proposed sanction pending the decision of the Principal Deputy Assistant Secretary.
(iii) The Principal Deputy Assistant Secretary shall provide a copy of the statement in opposition to or mitigation of the proposed sanction to the Office. The Office shall submit a statement in response, and shall provide the sponsor with a copy thereof.
(iv) A statement in opposition to or mitigation of the proposed sanction, or statement in response thereto, may not exceed 25 pages in length, double-spaced and, if appropriate, may include additional documentary material. Any additional documentary material may include an index of the documents and a summary of the relevance of each document presented.
(v) Upon consideration of such statements, the Principal Deputy Assistant Secretary shall modify, withdraw, or confirm the proposed sanction by serving the sponsor with a written decision. Such decision shall specify the grounds therefor, identify its effective date, advise the sponsor of its right to request a review, and identify the procedures for requesting such review.
(vi) All materials the sponsor submits will become a part of the sponsor’s file with the Office.
(3) Within ten (10) days after service of such written notice of the decision of the Principal Deputy Assistant Secretary, the sponsor may submit a request for review with the Principal Deputy Assistant Secretary. The submission of such request for review will serve to stay the effective date of the decision pending the outcome of the review.
(4) Within ten (10) days after receipt of such request for review, the Department shall designate a panel of three Review Officers pursuant to paragraph (g) of this section, and the Principal Deputy Assistant Secretary shall forward to each panel member all notices, statements, and decisions submitted or provided pursuant to the preceding paragraphs of paragraph (d) of this section. Thereafter, the review will be conducted pursuant to paragraphs (g) and (h) of this section.
(e) Denial of application for redesignation. Upon a finding of any act or omission set forth at paragraph (a) of this section, the Office may serve a sponsor with not less than thirty (30) days’ written notice of its intent to deny the sponsor’s application for redesignation. Such notice must specify the grounds for the proposed sanction and its effective date, advise the sponsor of its right to oppose the proposed sanction, and identify the procedures for submitting a statement of opposition thereto. Denial of redesignation under this section need not be preceded by the imposition of any other sanction or notice. The procedures for opposing a proposed denial of redesignation are set forth in paragraphs (d)(2), (d)(3), (d)(4), (g), and (h) of this section.
(f) Responsible officers. The Office may direct a sponsor to suspend or revoke the appointment of a responsible officer or alternate responsible officer for any of the reasons set forth in paragraph (a) of this section. The procedures for suspending or revoking a responsible officer or alternate responsible officer are set forth at paragraphs (d), (g), and (h) of this section.
(g) Review officers. A panel of three Review Officers shall hear a sponsor’s request for review pursuant to paragraphs (c), (d), (e), and (f) of this section. The Under Secretary of State for Public Diplomacy and Public Affairs shall designate one senior official from an office reporting to him/her, other than from the Bureau of Educational and Cultural Affairs, as a member of the Panel. The Assistant Secretary of State for Consular Affairs and the Legal Adviser shall each designate one senior official from their bureaus as members of the Panel.
(h) Review. The Review Officers may affirm, modify, or reverse the sanction imposed by the Principal Deputy Assistant Secretary. The following procedures shall apply to the review:
(1) Upon its designation, the panel of Review Officers shall promptly notify the Principal Deputy Assistant Secretary and the sponsor in writing of the identity of the Review Officers and the address to which all communications with the Review Officers shall be directed.
(2) Within fifteen (15) days after service of such notice, the sponsor may submit to the Review Officers four (4) copies of a statement identifying the grounds on which the sponsor asserts that the decision of the Principal Deputy Assistant Secretary should be reversed or modified. Any such statement may not exceed 25 pages in length, double-spaced; and any attachments thereto shall not exceed 50 pages. A sponsor shall include with all attachments an index of the documents and a summary of the relevance of each document presented. The Review Officers shall transmit one (1) copy of any such statement to the Principal Deputy Assistant Secretary, who shall, within fifteen (15) days after receipt of such statement, submit four (4) copies of a statement in response. Any such statement may not exceed 25 pages in length, double-spaced; and any attachments thereto shall not exceed 50 pages. The Principal Deputy Assistant Secretary shall include with all attachments an index of the documents and a summary of the relevance of each document presented. The Review Officers shall transmit one (1) copy of any such statement to the sponsor. No other submissions may be made unless specifically authorized by the Review Officers.
(3) If the Review Officers determine, in their sole discretion, that a meeting for the purpose of clarification of the written submissions should be held, they shall schedule a meeting to be held within twenty (20) days after the receipt of the last written submission. The meeting will be limited to no more than two (2) hours. The purpose of the meeting will be limited to the clarification of the written submissions. No transcript may be taken and no evidence, either through documents or by witnesses, will be received. The sponsor and the representative of the Principal Deputy Assistant Secretary may attend the meeting on their own behalf and may be accompanied by counsel.
(4) Following the conclusion of the meeting, or the submission of the last written submission if no meeting is held, the Review Officers shall promptly review the submissions of the sponsor and the Principal Deputy Assistant Secretary, and shall issue a signed written decision within thirty (30) days, stating the basis for their decision. A copy of the decision will be delivered to the Principal Deputy Assistant Secretary and the sponsor.
(5) If the Review Officers decide to affirm or modify the sanction, a copy of their decision shall also be delivered to the Department of Homeland Security and to the Bureau of Consular Affairs of the Department of State. The Office, at its discretion, may further distribute the decision.
(6) Unless otherwise indicated, the sanction, if affirmed or modified, is effective as of the date of the Review Officers’ written decision, except in the case of suspension of program designation, which is effective as of the date specified pursuant to paragraph (c) of this section.
(i) Effect of suspension, revocation, or denial of redesignation. A sponsor against which an order of suspension, revocation, or denial of redesignation has become effective may not thereafter issue any Certificate of Eligibility for Exchange Visitor (J-1) Status (Form DS-2019) or advertise, recruit for, or otherwise promote its program. Under no circumstances shall the sponsor facilitate the entry of an exchange visitor into the United States. An order of suspension, revocation, or denial of redesignation will not in any way diminish or restrict the sponsor’s legal or financial responsibilities to existing program applicants or participants.
(j) Miscellaneous – (1) Computation of time. In computing any period of time prescribed or allowed by these regulations, the day of the act or event from which the designated period of time begins to run is not included. The last day of the period so computed is included unless it is a Saturday, a Sunday, or a Federal legal holiday, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is fewer than eleven (11) days, intermediate Saturdays, Sundays, or Federal legal holidays are excluded in the computation.
(2) Service of notice to sponsor. Service of notice to a sponsor pursuant to this section may be accomplished through written notice by mail, delivery, electronic mail, or facsimile, upon the president, chief executive officer, managing director, General Counsel, Responsible Officer, or Alternate Responsible Officer of the sponsor.
Subpart E – Termination and Revocation of Programs
§ 62.60 Termination of designation
Designation will be terminated upon the occurrence of any of the circumstances set forth in this section.
(a) Voluntary termination. A sponsor notifies the Department of its intent to terminate its designation voluntarily and withdraws its program in SEVIS via submission of a “cancel program” request. The sponsor’s designation shall terminate upon submission of such notification. Such sponsor may apply for a new program designation.
(b) Inactivity. A sponsor fails to comply with the minimum program size or duration requirements, as specified in § 62.8 (a) and (b), in any 12-month period. Such sponsor may apply for a new program designation.
(c) Failure to file annual reports. A sponsor fails to file annual reports for two (2) consecutive years. Such sponsor is eligible to apply for a new program designation.
(d) Failure to file an annual management audit. A sponsor fails to file an annual management audit, if such audits are required in the relevant program category. Such sponsor is eligible to apply for a new program designation upon the filing of the past due management audit.
(e) Change in ownership or control. An exchange visitor program designation is not assignable or transferable. A major change in ownership or control automatically terminates the designation. However, the successor sponsor may apply for designation of the new entity, and it may continue to administer the exchange visitor activities of the previously-designated program while the application for designation is pending before the Department of State:
(1) With respect to a for-profit corporation, a major change in ownership or control is deemed to have occurred when one third (33.33%) or more of its stock is sold or otherwise transferred within a 12-month period;
(2) With respect to a not-for-profit corporation, a major change of control is deemed to have occurred when 51 percent (51%) or more of the board of trustees or other like body, vested with its management, is replaced within a 12-month period.
(f) Non-compliance with other requirements. A sponsor fails to remain in compliance with Federal, State, local, or professional requirements necessary to carry out the activity for which it is designated, including loss of accreditation, or licensure.
(g) Failure to apply for redesignation. A sponsor fails to apply for redesignation, pursuant to the terms and conditions of § 62.7, prior to the conclusion of its current designation period. If so terminated, the former sponsor may apply for a new program designation, but the program activity will be suspended during the pendency of the application.
§ 62.61 Revocation.
The Department may terminate a sponsor’s program designation by revocation for cause as specified in § 62.50. Such sponsor may not apply for a new designation for five (5) years following the effective date of the revocation.
§ 62.62 Termination of, or denial of redesignation for, a class of designated programs.
The Department may, in its sole discretion, determine that a class of designated programs compromises the national security of the United States or no longer furthers the public diplomacy mission of the Department of State. Upon such a determination, the Office shall:
(a) Give all sponsors of such class of designated programs not less than thirty (30) days’ written notice of the revocation of Exchange Visitor Program designations for such programs, specifying therein the grounds and effective date for such revocations; or
(b) Give any sponsor of such class of designated programs not less than thirty (30) days’ written notice of its denial of the sponsor’s application for redesignation, specifying therein the grounds for such denial and effective date of such denial. Revocation of designation or denial of redesignation on the above-specified grounds for a class of designated programs is the final decision of the Department.
§ 62.63 Responsibilities of the sponsor upon termination or revocation.
Upon termination or revocation of its program designation, a sponsor must:
(a) Fulfill its responsibilities to all exchange visitors who are in the United States at the time of the termination or revocation; and
(b) Notify exchange visitors who have not entered the United States that the program has been terminated or revoked, unless a transfer to another designated program can be obtained.
Subparts F-G [Reserved]
Appendixes A-D to Part 62 [Reserved]
Appendix E to Part 62 – Unskilled Occupations
For purposes of 22 CFR 514.22(c)(1), the following are considered to be “unskilled occupations”:
Appendix F to Part 62 – Information To Be Collected on Secondary School Student Host Family Applications
Basic Family Information:
a. Host Family Member – Full name and relationship (children and adults) either living full-time or part-time in the home or who frequently stay at the home)
b. Date of Birth (DOB) of all family members
c. Street Address
d. Contact information (telephone; e-mail address) of host parents
e. Employment – employer name, job title, and point of contact for each working resident of the home
f. Is the residence the site of a functioning business? (e.g., daycare, farm)
g. Description of each household member (e.g., level of education, profession, interests, community involvement, and relevant behavioral or other characteristics of such household members that could affect the successful integration of the exchange visitor into the household)
h. Has any member of your household ever been charged with any crime?
Household Pets:
a. Number of Pets
b. Type of Pets
Financial Resources:
a. Average Annual Income Range: Less than $25,000; $25,000-$35,000; $35,000-$45,000; $45,000-$55,000; $55,000-$65,000; $65,000-$75,000; and $75,000 and above. Note: The form must include a statement stating that: “The income data collected will be used solely for the purposes of ensuring that the basic needs of the exchange students can be met, including three quality meals and transportation to and from school activities”
b. Describe if anyone residing in the home receives any kind of public assistance (financial needs-based government subsidies for food or housing)
c. Identify those personal expenses expected to be covered by the student
Diet:
a. Does anyone in the family follow any dietary restrictions? (Y/N)
If yes, describe:
b. Do you expect the student to follow any dietary restrictions? (Y/N)
If yes, describe:
c. Would you feel comfortable hosting a student who follows a particular dietary restriction (ex. Vegetarian, Vegan, etc.)? (Y/N)
d. Would the family provide three (3) square meals daily?
High School Information:
a. Name and address of school (private or public school)
b. Name, address, e-mail and telephone number of school official
c. Approximate size of the school student body
d. Approximate distance between the school and your home
e. Approximate start date of the school year
f. How will the exchange student get to the school (e.g. bus, carpool, walk)?
g. Would the family provide special transportation for extracurricular activities after school or in the evenings, if required?
h. Which, if any, of your family’s children, presently attend the school in which the exchange visitor is enrolled?
If applicable list sports/clubs/activities, if any, your child(ren) participate(s) in at the school
i. Does any member of your household work for the high school in a coaching/teaching/or administrative capacity?
j. Has any member of your household had contact with a coach regarding the hosting of an exchange student with particular athletic ability?
If yes, please describe the contact and sport.
Community Information:
a. In what type of community do you live (e.g.: Urban, Suburban, Rural, Farm)
b. Population of community
c. Nearest Major City (Distance and population)
d. Nearest Airport (Distance)
e. City or town website
f. Briefly describe your neighborhood and community
g. What points of interest are near your area (parks, museums, historical sites)?
h. Areas in or near neighborhood to be avoided?
Home Description:
a. Describe your type of home (e.g., single family home, condominium, duplex, apartment, mobile home) and include photographs of the host family home’s exterior and grounds, kitchen, student’s bedroom, student’s bathroom, and family and living areas.
b. Describe Primary Rooms and Bedrooms
c. Number of Bathrooms
d. Will the exchange student share a bedroom? (Y/N)
If yes, with which household resident?
e. Describe the student’s bedroom
f. Describe amenities to which the student has access
g. Utilities
Family Activities:
a. Language spoken in home
b. Please describe activities and/or sports each family member participates in: (e.g., camping, hiking, dance, crafts, debate, drama, art, music, reading, soccer, baseball, horseback riding)
c. Describe your expectations regarding the responsibilities and behavior of the student while in your home (e.g., homework, household chores, curfew (school night and weekend), access to refrigerator and food, drinking of alcoholic beverages, driving, smoking, computer/Internet/E-Mail)
Would you be willing voluntarily to inform the exchange visitor in advance of any religious affiliations of household members? (Y/N)
Would any member of the household have difficulty hosting a student whose religious beliefs were different from their own? (Y/N) Note: A host family may want the exchange visitor to attend one or more religious services or programs with the family. The exchange visitor cannot be required to do so, but may decide to experience this facet of U.S. culture at his or her discretion.
How did you learn about being a host family?
References:
PART 63 – PAYMENTS TO AND ON BEHALF OF PARTICIPANTS IN THE INTERNATIONAL EDUCATIONAL AND CULTURAL EXCHANGE PROGRAM
§ 63.1 Definitions.
For the purpose of this part the following terms shall have the meaning here given:
(a) International educational and cultural exchange program of the Department of State. A program to promote mutual understanding between the people of the United States and those of other countries and to strengthen cooperative international relations in connection with which payments are made direct by the Department of State, as well as similar programs carried out by other Government departments and agencies and by private organizations with funds appropriated or allocated to the Department of State when the regulations in this part apply under the provisions of § 515.2 (a) and (b).
(b) Program and Agency. For convenience, the international educational and cultural exchange program of the Department of State will hereinafter be referred to as the “program,” and the Department of State will hereinafter be referred to as the “Agency.”
(c) Participant. Any person taking part in the program for purposes listed in § 515.3 through § 515.8 including both citizens of the United States and citizens and nationals of the other countries with which the program is conducted.
(d) Transportation. All necessary travel on railways, airplanes, steamships, buses, streetcars, taxicabs, and other usual means of conveyance.
(e) Excess baggage. Baggage in excess of the weight or size carried free by public carriers on first class service.
(f) Per diem allowance. Per diem in lieu of subsistence includes all charges for meals and lodging; fees and tips; telegrams and telephone calls reserving hotel accommodations; laundry, cleaning and pressing of clothing; transportation between places of lodging or business and places where meals are taken.
§ 63.2 Applicability of this part under special circumstances.
(a) Funds administered by another department or agency. The regulations in this part shall apply to payments made to or on behalf of participants from funds appropriated or allocated to the Agency and transferred by the Agency to some other department, agency or independent establishment of the Government unless the terms of the transfer provide that such regulations shall not apply in whole or in part or with such modification as may be prescribed in each case to meet the exigencies of the particular situation.
(b) Funds administered by private organizations. The regulations in this part shall apply to payments made to or on behalf of participants from funds appropriated or allocated to the Agency and administered by an institution, facility, or organization in accordance with the terms or a contract or grant made by the Agency with or to such private organizations, unless the terms of such contract or grant provide that the regulations in this part are not to be considered applicable or that they are to be applied with such modifications as may be prescribed in each case to meet the exigencies of the particular situation.
(c) Appropriations or allocations. The regulations in this part shall apply to payments made by the Agency with respect to appropriations or allocations which are or may hereafter be made available to the Agency for the program so far as the regulations in this part are not inconsistent therewith.
§ 63.3 Grants to foreign participants to observe, consult, demonstrate special skills, or engage in specialized programs.
A citizen or national of a foreign country who has been awarded a grant to observe, consult with colleagues, demonstrate special skills, or engage in specialized programs, may be entitled to any or all of the following benefits when authorized by the Agency.
(a) Transportation. Accommodations, as authorized, on steamship, airplane, railway, or other means of conveyance. For travel in a privately owned vehicle, reimbursement will be in accordance with the provisions of the Federal Travel Regulations.
(b) Excess baggage. Excess baggage as deemed necessary by the Agency.
(c) Per diem allowance. Per diem allowances in lieu of subsistence expenses while participating in the program in the United States, its territories or possessions and while traveling within or between the United States, its territories or possessions shall be established by the Secretary of State from time to time, within limitations prescribed by law. The participant shall be considered as remaining in a travel status during the entire period covered by his or her grant unless otherwise designated.
(d) Allowance. A special allowance in lieu of per diem while traveling to and from the United States may be established by the Secretary of State, within limitations prescribed by law.
(e) Tuition and related expenses. Tuition and related expenses in connection with attendance at seminars and workshops, professional meetings, or other events in keeping with the purpose of the grant.
(f) Books and educational materials allowance. A reasonable allowance for books and educational materials.
(g) Advance of funds. Advance of funds including per diem.
§ 63.4 Grants to foreign participants to lecture, teach, and engage in research.
A citizen or national of a foreign country who has been awarded a grant to lecture, teach, and engage in research may be entitled to any or all of the following benefits when authorized by the Agency:
(a) Transportation. Accommodations, as authorized on steamship, airplane, railway, or other means of conveyance. For travel in a privately owned vehicle, reimbursement will be in accordance with the provisions of the Federal Travel Regulations.
(b) Excess baggage. Excess baggage as deemed necessary by the Agency.
(c) Per diem allowance. Per diem allowance in lieu of subsistence expenses while participating in the program in the United States, its territories or possessions and while traveling within or between the United States, its territories or possessions shall be established by the Secretary of State from time to time, within limitations prescribed by law.
(d) Allowance. A special allowance in lieu of per diem while traveling to and from the United States may be established by the Secretary of State, within limitations prescribed by law.
(e) Tuition and related expenses. Tuition and related expenses in connection with attendance at educational institutions, seminars and workshops, professional meetings or other events in keeping with the purpose of the grant.
(f) Books and educational materials allowance. A reasonable allowance for books and educational materials.
(g) Advance of funds. Advance of funds including per diem.
§ 63.5 Grants to foreign participants to study.
A citizen or national of a foreign country who has been awarded a grant to study may be entitled to any or all of the following benefits when authorized by the Agency:
(a) Transportation. Accommodations, as authorized, on steamship, airplane, railway, or other means of conveyance. For travel in a privately owned vehicle, reimbursement will be accordance with the provisions of the Federal Travel Regulations.
(b) Excess baggage. Excess baggage as deemed necessary by the Agency.
(c) Per diem allowance. Per diem allowance in lieu of subsistence expenses while traveling (1) from point of entry in the United States, its territories or possessions to orientation centers and while in attendance at such centers for purposes of orientation, not to exceed 30 days, (2) to educational institutions of affiliation, and (3) to point of departure and while participating in authorized field trips or conferences, shall be established by the Secretary of State from time to time, within limitations prescribed by law.
(d) Allowances. (1) A maintenance allowance while present and in attendance at an educational institution, facility or organization, and
(2) A travel allowance in lieu of per diem while traveling to and from the United States may be established by the Secretary of State, within limitations prescribed by law.
(e) Tuition. Tuition and related fees for approved courses of study.
(f) Books and educational materials allowance. A reasonable allowance for books and educational materials.
(g) Tutoring assistance. Special tutoring assistance in connection with approved courses of study.
(h) Advance of funds. Advance of funds including per diem.
§ 63.6 Assignment of United States Government employees to consult, lecture, teach, engage in research, or demonstrate special skills.
An employee of the United States Government who has been assigned for service abroad to consult, lecture, teach, engage in research, or demonstrate special skills, may be entitled to any or all of the following benefits when authorized by the Agency.
(a) Transportation. Transportation and miscellaneous expenses in the United States and abroad, including baggage charges, and per diem in lieu of subsistence at the maximum rates allowable while in a travel status in accordance with the provisions of the Federal Travel Regulations. The participant shall be considered as remaining in a travel status during the entire period covered by his or her assignment unless otherwise designated.
(b) Advance of funds. Advances of per diem as provided by law.
(c) Compensation. Compensation in accordance with Civil Service rules; or in accordance with the grade in which the position occupied may be administratively classified; or Foreign Service Act, as amended.
(d) Allowances for cost of living and living quarters. Allowances for living quarters, heat, fuel, light, and to compensate for the increased cost of living in accordance with the Federal Travel Regulations (Government Civilians, Foreign Areas), when not in a travel status as provided in paragraph (a) of this section.
(e) Books and educational materials allowance. A reasonable allowance for books and educational materials. Such books and materials, unless otherwise specified, shall be selected by the employee and purchased and shipped by the Agency or its agent. At the conclusion of the assignment, the books and educational materials shall be transferred to and become the property of an appropriate local institution or be otherwise disposed of as directed by the Agency.
(f) Families and effects. Cost of transportation of immediate family and household goods and effects when going to and returning from posts of assignment in foreign countries in accordance with the provisions of the Foreign Service Regulations of the United States of America.
§ 63.7 Grants to United States participants to consult, lecture, teach, engage in research, demonstrate special skills, or engage in specialized programs.
A citizen or resident of the United States who has been awarded a grant to consult, lecture, teach, engage in research, demonstrate special skills, or engage in specialized programs may be entitled to any or all of the following benefits when authorized by the Agency.
(a) Transportation. Transportation in the United States and abroad, including baggage charges.
(b) Subsistence and miscellaneous travel expenses. Per diem, in lieu of subsistence while in a travel status, at the maximum rates allowable in accordance with the provisions of the Federal Travel Regulations, unless otherwise specified, and miscellaneous travel expenses, in the United States and abroad. Alternatively, a travel allowance may be authorized to cover subsistence and miscellaneous travel expenses. The participant shall be considered as remaining in a travel status during the entire period covered by his or her grant unless otherwise designated.
(c) Orientation and debriefing within the United States. For the purpose of orientation and debriefing within the United States, compensation, travel, and per diem at the maximum rates allowable in accordance with the provisions of the Federal Travel Regulations, unless otherwise specified. Alternatively, a travel allowance may be authorized to cover subsistence and miscellaneous travel expenses.
(d) Advance of funds. Advance of funds, including allowance for books and educational materials and per diem, or alternatively, the allowance to cover subsistence and miscellaneous travel expenses.
(e) Compensation. Compensation at a rate to be specified in each grant.
(f) Allowances. Appropriate allowance as determined by the Agency.
(g) Books and educational materials allowance. Where appropriate, an allowance for books and educational materials. Such books and materials, unless otherwise specified, shall be selected by the grantee and purchased and shipped either by the grantee, or the Agency or its agent. At the conclusion of the grant, the books and materials shall be transferred to and become the property of an appropriate local institution or be otherwise disposed of as directed by the Agency.
§ 63.8 Grants to United States participants to study.
A citizen of the United States who has been awarded a grant to study may be entitled to any or all of the following benefits when authorized by the Agency.
(a) Transportation. Transportation and miscellaneous expenses in the United States and abroad, including baggage charges, and per diem in lieu of subsistence while in a travel status. Per diem at the maximum rates allowable in accordance with the provisions of the Federal Travel Regulations, unless otherwise specified. Travel status shall terminate upon arrival at the place of study designated in the grant and shall recommence upon departure from the place to return home.
(b) Orientation and debriefing within the United States. For the purpose of orientation and debriefing within the United States travel and per diem at the maximum rates allowable in accordance with the provisions of the Federal Travel Regulations, unless othewise specified.
(c) Advance of funds. Advance of funds including per diem.
(d) Maintenance allowance. A maintenance allowance at a rate to be specified in each grant.
(e) Tuition. Tuition and related fees for approved courses of study.
(f) Books and educational materials allowance. A reasonable allowance for books and educational materials.
(g) Tutoring assistance. Special tutoring assistance in connection with approved courses of study.
§ 63.9 General provisions.
The following provisions shall apply to the foregoing regulations:
(a) Health and accident insurance. Payment for the costs of health and accident insurance for United States and foreign participants while such participants are enroute or absent from their homes for purposes of participation in the program when authorized by the Agency.
(b) Transportation of remains. Payments for the actual expenses of preparing and transporting to their former homes the remains of persons not United States Government employees, who may die away from their homes while participating in the program are authorized.
(c) Maxima not controlling. Payments and allowances may be made at the rate or in the amount provided in the regulations in this part unless an individual grant or travel order specifies that less than the maximum will be allowed under any part of the regulation in this part. In such case, the grant or travel order will control.
(d) Individual authorization. Where the regulations in this part provide for compensation, allowance, or other payment, no payment shall be made therefor unless a definite amount or basis of payment is authorized in the individual case, or is approved as provided in paragraph (f) of this section.
(e) Computation of per diem and allowance. In computing per diem and allowance payable while on a duty assignment, except for travel performed under the Federal Travel Regulations, fractional days shall be counted as full days, the status at the end of the calendar day determining the status for the entire day.
(f) Subsequent approval. Whenever without prior authority expense has been incurred by a participant, or an individual has commenced his or her participation in the program as contemplated by the regulations in this part, the voucher for payments in connection therewith may be approved by an official designated for this purpose, such approval constituting the authority for such participation or the incurring of such expense.
(g) Additional authorization. Any emergency, unusual or additional payment deemed necessary under the program if allowable under existing authority, may be authorized whether or not specifically provided for by this part.
(h) Biweekly payment. Unless otherwise specified in the grant, all compensation and allowance for United States participants shall be payable biweekly and shall be computed as follows: An annual rate shall be derived by multiplying a monthly rate by 12; a biweekly rate shall be derived by dividing an annual rate by 26; and a calendar day rate shall be derived by dividing an annual rate by 364. If any maximum compensation or allowance authorized by these regulations or by the terms of any grant is exceeded by this method of computation and payment, such excess payment is hereby authorized. This paragraph may apply to payments made to participants from funds administrered as provided in § 515.2(a) and (b) in the discretion of the department, agency, independent establishment, institution, facility, or organization concerned.
(i) Payments. Payments of benefits authorized under any part of the regulations in this part may be made either by the Department of State or by such department, agency, institution, or facility as may be designated by the Agency.
(j) Duration. The duration of the grant shall be specified in each case.
(k) Cancellation. If a recipient of a grant under this program fails to maintain a satisfactory record or demonstrates unsuitability for furthering the purposes of the program as stated in § 515.1(a), his or her grant shall, in the discretion of the Secretary of State of the Department of State or such officer as he or she may designate, be subject to cancellation.
(l) Outstanding grant authorization. Grants and other authorizations which are outstanding and in effect on the date the present regulations become effective, and which do not conform to this part, shall nevertheless remain in effect and be governed by the regulations under which they were originally issued, unless such grants or other authorizations are specifically amended and made subject to the present regulations in which case the individual concerned will be notified.
PART 64 – PARTICIPATION BY FEDERAL EMPLOYEES IN CULTURAL EXCHANGE PROGRAMS OF FOREIGN COUNTRIES
§ 64.1 Purpose.
This part sets forth the procedures for the application for approval of a cultural exchange program of a foreign government, so that Federal employees may participate in such program; the grant and termination of such approval; and related procedures.
§ 64.2 Definitions.
For the purpose of this part:
(a) Federal employee means: (1) An employee as defined by section 2105 of title 5, United States Code; (2) an individual employed by, or occupying an office or position in, the government of a territory or possession of the United States or the District of Columbia; (3) a member of a uniformed service; (4) the President and Vice President; and (5) a Member of the Senate or the House of Representatives, a Delegate from the District of Columbia in Congress, and the Resident Commissioner from Puerto Rico in Congress.
(b) A foreign government means a foreign government and an official agent or representative thereof; a group of governments and an official agent or representative thereof; an international organization composed of governments, and an official agent or representative thereof.
(c) A program of the type described in section 102(a)(2)(i) of the Act means a cultural exchange program involving “visits and interchanges between the United States and other countries of leaders, experts in fields of specialized knowledge or skill, and other influential or distinguished persons.”
(d) The “purpose stated in section 101 of the Act” is “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of the other countries by means of educational and cultural exchange; to strengthen the ties which unite us with other nations by demonstrating the educational and cultural interests, developments, and achievements of the people of the United States and other nations, and the contributions being made toward a peaceful and more fruitful life for people throughout the world; to promote international cooperation for educational and cultural advancement; and thus to assist in the development of friendly, sympathetic, and peaceful relations between the United States and the other countries of the world.”
(e) Secretary of State means the Secretary of State of the Department of State.
(f) Department of State means the Department of State.
(g) Act means the Mutual Educational Cultural Exchange Act of 1961, as amended (22 U.S.C. 2451 et seq.).
(h) Member of the family or household of a Federal employee means a relative of the employee by blood, marriage, or adoption or any person who is a resident of the household of the employee.
§ 64.3 Submission of application.
A foreign government intending to provide grants or other assistance to facilitate the participation of Federal employees in a program of cultural exchange shall submit to the Department of State an application for approval of the program through its embassy, mission, or office at Washington, D.C. If there is no embassy, mission, or office at Washington, D.C., of the foreign government the application may be submitted by the home office or headquarters of the foreign government. The application shall be addressed to the Secretary of State.
§ 64.4 Contents of application.
The foreign government shall provide information in the application showing that its program meets the criteria set forth in § 516.5, and shall include in such application the following:
(a) Name and description of the program and the provisions of legislation or regulation authorizing the program;
(b) Number of annual U.S. citizen participants expected, including the number of U.S. Federal employees;
(c) Average duration of stay abroad;
(d) Department of State of the foreign government responsible for the program;
(e) Name and address of contact in the United States with whom communication may be made with respect to the program; in the absence of such a contact in the United States, the name and address of a contact in the home office or headquarters of the foreign government.
§ 64.5 Criteria for approval of program.
To obtain approval of its program of cultural exchanges, a foreign government is required to show that:
(a) The cultural exchange program is of the type described in section 102(a)(2)(i) of the Act;
(b) The cultural exchange program is conducted for a purpose comparable to the purpose stated in section 101 of the Act; and
(c) A grant under such program will not provide assistance with respect to any expenses incurred by or for any member of the family or household of such Federal employee.
§ 64.6 Request for further information.
The Department of State may request the foreign government to supply additional information.
§ 64.7 Approval of application.
The Secretary of State shall review the application and if satisfied that the criteria of § 516.5 are met shall inform the foreign government of the approval of its program.
§ 64.8 Obligation of employee to advise agency.
Any Federal employee receiving any offer of a grant or other assistance under a cultural exchange program approved by the Secretary of State shall advise the employee’s agency of such offer and shall not accept such offer unless the employee’s agency states that it has no objection to such acceptance. In the case of the Department, an employee shall advise the DAEO who may, after consultation with appropriate officials of the Department, furnish a “no objection” statement.
§ 64.9 Termination of approval.
If at any time it appears to the Secretary of State that the purpose of a program which has been approved has been changed so that it no longer meets the criteria of § 516.5 or that the program is being misused, the Secretary of State may terminate such approval, or suspend such approval pending the supplying of additional information. However, a termination or suspension shall not affect a grant which has been made under a previously approved program.
§ 64.10 Grant not to constitute a gift.
A grant made under an approved program shall not constitute a gift for purposes of 22 CFR 10.735-203 and section 7342 of title 5, United States Code.
PART 65 – FOREIGN STUDENTS
§ 65.1 Regulations to be drafted.
Subject to the provisions and requirements of this part, appropriate administrative regulations shall be drafted by each executive department or agency of the Government which maintains and administers educational institutions and schools coming within the scope of the legislation. Such regulations shall carefully observe the limitations imposed by the Act of June 24, 1938, and shall in each case include:
(a) A list of the institutions and courses in the department or agency concerned in which instruction is available under the terms of the legislation.
(b) A statement of the maximum number of students of the other American republics who may be accommodated in each such institution or course at any one time.
(c) A statement of the qualifications to be required of students of the other American republics for admission, including examinations, if any, to be passed.
(d) Provisions to safeguard information that may be vital to the national defense or other interests of the United States.
§ 65.2 Applications.
Applications for citizens of the other American republics to receive the instruction contemplated by the Act of June 24, 1938, shall be made formally through diplomatic channels to the Secretary of State of the Department of State by the foreign governments concerned.
§ 65.3 Reference of applications.
The Secretary of State of the Department of State shall refer the applications to the proper department or agency of the Government for advice as to what reply should be made to the application.
§ 65.4 Copies of regulations to Department of State.
In order to enable the Secretary of State of the Department of State to reply to inquiries received from the governments of the other American republics, the Department of State shall be promptly supplied with copies of the regulations drafted by the other departments and agencies of the Government and of subsequent amendments thereto.
§ 65.5 Granting of application.
Upon receipt of a reply from another department or agency of the Government, as contemplated by § 517.3, in which it is recommended that an application be granted, the Secretary of State of the Department of State shall notify the government of the American republic concerned, through diplomatic channels, that permission to receive the instruction requested in the application is granted, provided the applicant complies with the terms of this part and with the terms of the administrative regulations of the department or agency concerned.
PART 66 – AVAILABILITY OF THE RECORDS OF THE NATIONAL ENDOWMENT FOR DEMOCRACY
§ 66.1 Introduction.
These regulations amend the Code of Federal Regulations to conform with Pub. L. 99-93. Pub. L. 99-93 amended the National Endowment for Democracy Act (22 U.S.C. 4411, et. seq.) to require the National Endowment for Democracy (hereinafter “NED”) to comply fully with the provisions of the Freedom of Information Act (5 U.S.C. 552) (hereinafter “FOIA”), notwithstanding that NED is not an agency or establishment of the United States Government. NED will make information about its operation, organization, procedures and records available to the public in accordance with the provisions of FOIA.
See 22 CFR part 527 for a description of the organization of NED and substantive rules of general applicability formulated and adopted by NED.
§ 66.3 Places at which forms and instructions for use by the public may be obtained.
(a) All forms and instructions pertaining to procedures under FOIA may be obtained from the FOIA officer of the National Endowment for Democracy, 1101 15th St., NW; Suite 700, Washington, D.C. 20005-5000.
(b) Grant guidelines may be obtained from the Program Office of NED to the address shown in paragraph (a) of this section.
(c) General information may be obtained from the Public Affairs Office of NED at the address shown in paragraph (a) of this section.
§ 66.4 Availability of final opinions, orders, policies, interpretations, manuals and instructions.
NED is not an adjudicatory organization and therefore does not issue final opinions and orders made in the adjudication of cases. NED will, however, in accordance with the rules in this section and § 526.7, make available for public inspection and copying those statements of policy and interpretation that have been adopted by NED and are not published in the
(a) Deletion to protect privacy. To the extent required to prevent a clearly unwarranted invasion of personal privacy, NED may delete identifying details when it makes available or publishes a statement of policy, interpretation, or staff manual or instruction. Whenever NED finds any such deletion necessary, the responsible officer or employee must fully explain the justification therefor in writing.
(b) Current index. NED will maintain and make available on its premises for public inspection and copying a current index providing identifying information for the public as to any matter issued, adopted or promulgated after July 4, 1967, and required by this section to be made available or published. NED will provide copies on request at a cost of $0.15 per page.
§ 66.5 Availability of NED records.
Except with respect to the records made available under § 526.4, NED will, upon request that reasonably describes records in accordance with the requirements of this section, and subject to the exemptions listed in 5 U.S.C. 552(b), make such records promptly available to any person.
(a) Requests for records – How made and addressed. (1) Requesters seeking access to NED records under FOIA should direct all requests in writing to: Freedom of Information Act Officer, National Endowment for Democracy, 1101 15th St., NW; Suite 700, Washington, D.C. 20005-5000.
(2) Appeals of denials of initial requests must be addressed to NED in the same manner or to the Department of State pursuant to the procedures set forth at part 171 of this Title, with the addition of the word “APPEAL” preceding the address on the envelope. Appeals addressed directly to the Department of State will not be deemed to have been received by NED for purposes of the time period set forth in 5 U.S.C. 552(a)(6)(A)(1) until actually received by NED. The Department of State shall forward any appeal received by it to NED within 2 working days from the actual day of receipt by the Department of State.
(3) The request letter should contain all available data concerning the desired records, including a description of the material, dates, titles, authors, and other information that may help identify the records. The first paragraph of a request letter should state whether it is an initial request or an appeal.
(b) Administrative time limits. (1) Within 10 working days after NED’s receipt of any request for access to NED records in compliance with paragraph (a) of this section, NED shall make an initial determination whether to provide the requested information and NED shall notify the requester in writing of its initial determination. In the event of an adverse determination, notification shall include the reasons for the adverse determination, the officials responsible for such determination, the right of the requester to appeal within NED, and that the final determination by NED to deny a request for records in whole or in part shall be submitted to the Secretary of State of Department of State for review. NED shall also provide Department of State a copy of its response as soon as practicable after it responds to the requester.
(2) When a request for records has been denied in whole or in part, the requester may, within 30 days of the date of receipt by the requester of the adverse determination from NED, appeal the denial to the President of NED or his designee, who will make a determination whether to grant or deny such appeal within 20 working days of receipt thereof. All appeals should be addressed in compliance with paragraph (a) of this section. If on appeal, the denial of the request for records is upheld, in whole or in part, NED shall notify the requester in writing of such determination, the reasons therefor, the officials responsible for such determination, the right of the requester to judicial review, and that the final determination by NED whether to deny a request for records in whole or in part shall be submitted to the Secretary of State of Department of State for review.
(3) If the requester elects not to appeal to the President of NED or his designee within the appeal period specified above, NED’s initial determination will become the final NED determination upon expiration of said appeal period or receipt by NED of notice from the requester that he does not elect to appeal, whichever is earlier. If the requester chooses to appeal NED’s initial determination within NED, the decision on appeal will become NED’s final determination.
(4)(i) Once NED’s determination to deny a request in whole or in part becomes final, NED shall submit a report to the Secretary of State of Department of State explaining the reasons for such denial no later than 5 working days thereafter.
(ii) The Secretary of State of Department of State shall review NED’s final determination within 20 working days. If the Secretary of State of Department of State or his designee approves NED’s denial in whole or in part, Department of State shall inform the requester and NED in writing of such determination, the reasons therefor, the officials responsible for such determination, and the right of the requester to judicial review of NED’s determination. In the event of such a determination, Department of State shall assume full responsibility, including financial responsibility, for defending NED in any litigation relating to such request.
(iii) If the Secretary of State of Department of State or his designee disapproves NED’s denial in whole or in part, Department of State shall promptly notify NED and thereafter NED shall promptly comply with the request for the pertinent records.
(iv) Because review by the Secretary of State of Department of State may resolve any dispute over access to NED records in the requester’s favor, the requester is encouraged (but not required) to wait for the determination on review by the Secretary of State of Department of State before seeking judicial review of NED’s final determination.
(5) In unusual circumstances as defined in 5 U.S.C. 552(a)(6)(B), the time limit provisions noted in paragraphs (b)(1) and (b)(2) of this section may be extended by written notice to the requester setting forth the reasons for such extension and the date on which a determination can be expected. Such extensions of the time limits may not exceed 10 working days in the aggregate.
(6) Any person making a request for records pursuant to § 526.5 may consider administrative remedies exhausted if NED fails to comply within the applicable time limit provisions of this section. When no determination can be dispatched within the applicable time limits set forth in this section, NED shall nevertheless continue to process the request. On the expiration of the time limit, NED shall inform the requester of the reason for the delay, of the date on which a determination may be expected to be dispatched, and of the requester’s right to treat the delay as a denial and of the requester’s right to appeal. NED may ask the requester to forego appeal until a determination is made. A copy of any such notice of delay will be sent to the Secretary of State of Department of State or to his designee no later than 2 working days after it has been sent to the requester. A court may retain jurisdiction and allow NED additional time to complete its review of the records, if it can be determined that exceptional circumstances exist and that NED is exercising due diligence in responding to the request.
(c) Definitions governing schedule of standard fees and fee waivers. For purposes of these regulations governing fees and fee waivers:
(1) All of the terms defined in FOIA apply;
(2) A statute specifically providing for setting the level of fees for particular types of records means any statute that specifically requires the NED to set the level of fees for particular types of records;
(3) The term direct costs means those expenditures that NED actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents, photographs, drawings or any other material to respond to a FOIA request. [Direct costs include the salary of the employee performing the work (the basic rate of pay for the employee plus 16% 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, any heating or lighting, the facility in which the records are stored];
(4) The term search includes all time spent looking for material that is responsive to a request, including page by page or line by line identification of material within documents. Searches shall be conducted to ensure that they are undertaken in the most efficient and least expensive manner so as to minimize costs for both NED and the requester. “Search” is distinguished from “review” of material in order to determine whether the material is exempt from disclosure (see subparagraph (c)(6) below);
(5) The term duplication refers to the process of making a copy of a document, drawing, photograph, or any other material necessary to respond to a FOIA request. The copy provided by NED will be in a form that is reasonably usable by requesters;
(6) The term review refers to the process of examining documents that are located in response to a request that is for a commercial use (see subparagraph (c)(7) below) to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure, e.q., 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;
(7) The term ‘commercial use’ requests 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, NED will determine the use to which a requester will put the documents requested. Where NED 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, NED will seek additional clarification before assigning the request to a specific category;
(8) The term 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, that operates a program or programs of scholarly study and/or research;
(9) 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 (c)(7) 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;
(10) The term 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 that broadcast 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. In the case of “free-lance” journalists, such 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 they are not actually employed by a news organization. A publication contract would be the clearest proof, but NED will also look to the past publication record of a requester in making this determination.
(d) Fees to be charged – general. NED shall charge fees that recoup the full allowable direct costs it incurs. NED shall use the most efficient and least costly methods to comply with requests for documents, drawings, photographs, and any other materials made under the FOIA.
(e) Specific fees. The specific fees for which NED shall charge the requester when so required by the FOIA are as follows:
(1) Manual searches for records – $8.00 per hour for clerical personnel; $15.00 per hour for supervisory personnel;
(2) Computer searches for records – In any case where a computer search is possible and the most efficient means by which to conduct a search, NED will charge the cost of operating the central processing unit for that portion of operating time that is directly attributable to searching for records responsive to a FOIA request and the operator-programmer salary apportionable to the search. The charge for the cost of the operator-programmer time shall be based on the salary of the operator-programmer plus 16 percent;
(3) Review of records – Requesters who seek documents for commercial use shall be charged for the time NED spends reviewing records to determine whether such records are exempt from mandatory disclosure. These charges shall be assessed only for the initial review; i.e., the review undertaken the first time NED analyzes the applicability of a specific exemption to a particular record or portion of a record. Neither NED nor the Department of State will charge for review at the administrative appeal level for an exemption already applied. However, NED will charge for review of records or portions of records withheld in full under an exemption that is subsequently determined not to apply. The fee for review as that term is used in these regulations shall be $15.00 per hour;
(4) Duplication of records – (i) making photocopies – 15¢ per page; (ii) for copies prepared by computer, such as tapes or printouts, NED shall charge the actual cost, including operator time, of production of the tape or printout; (iii) for other methods of reproduction or duplication, NED shall charge the actual direct costs of producing the document(s);
(5) Other charges – (i) there shall be no fee for a signed statement of non-availability of a record; (ii) NED will not incur expenses arising out of sending records by special methods such as express mail;
(6) Restrictions on assessing fees – With the exception of requesters seeking documents for a commercial use, section (a)(4)(A)(iv) of the Freedom of Information Act, as amended, requires NED to provide the first 100 pages of duplication and the first two hours of search time without charge. NED shall 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. NED will not begin to assess fees until it has first provided the above-referenced free search and reproduction. The elements to be considered in determining the “cost of collecting a fee” are the administrative costs to NED of receiving and recording a requester’s remittance and processing the fee for deposit in NED’s account. For purposes of these restrictions on assessment of fees, the word “pages” refers to paper copies of a standard size, which will normally be 8
(f) Fees to be charged – categories of requesters. There are four categories of FOIA requesters: commercial use requesters; educational and non-commercial scientific institutions; representatives of the news media; and all other requesters. The fees to be charged each of these categories of requesters are as follows:
(1) Commercial use requesters – when NED receives a request for documents for commercial use, it shall assess charges that recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Commercial use requesters are entitled to neither two hours of free search time nor 100 free pages of reproduction of documents. NED shall recover the cost of searching for and reviewing records even if there is ultimately no disclosure of records. Requesters must reasonably describe the records sought;
(2) Educational and non-commercial scientific institution requesters – NED shall provide documents to educational and non-commercial scientific institution requesters for the cost of reproduction alone, excluding charges for the first 100 pages of duplication. 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;
(3) Requesters who are representatives of the news media – NED shall provide documents to requesters who are representatives of the news media 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 subsection (c)(10) above, and the request must not be made for a commercial use. 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. Requesters must reasonably describe the records sought;
(4) All other requesters – NED shall charge requesters who do not fit into any of the above categories those fees that recover the full reasonable direct costs 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. Requesters must reasonably describe the records sought.
(g) Assessment and collection of fees. (1) NED shall assess 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 NED, even if not processed, will suffice to stay the accrual of interest. Interest will be at the rate prescribed in section 3717 of title 31 of the United States Code and will accrue from the date of the billing.
(2) Charges for unsuccessful searches – If NED estimates that search charges are likely to exceed $25.00, it shall notify the requester of the estimated amount of fees unless the requester has indicated in advance a willingness to pay fees as high as those anticipated. Such notice shall offer the requester the opportunity to confer with agency personnel with the object of reformulating the request to meet the requester’s needs at a lower cost. Dispatch of such a notice of request shall suspend the running of the period for response by NED until a reply is received from the requester.
(3) Aggregating requests – Except for requests that are for a commercial use, NED shall not charge for the first two hours of search time or for the first 100 pages of reproduction. However, 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 NED reasonably believes that a requester or a group of requesters acting in concert are attempting to divide a request into a series of requests for the purpose of evading the assessment of fees, NED shall aggregate any such requests and charge accordingly. One element to be considered in determining whether a belief would be reasonable is the time period in which the requests have been made. Before aggregating requests from more than one requester, NED must have a concrete basis on which to conclude that the requesters are acting in concert and are acting specifically to avoid payment of fees. In no case shall NED aggregate multiple requests on unrelated subjects from one requester.
(4) Advance payments – NED shall not require payment for fees before work has commenced or continued on a request unless:
(i) NED estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250.00. In this event, NED shall notify the requester of the likely cost and may require an advance payment of an amount up to the full amount of estimated charges; or
(ii) A requester has previously failed to pay a fee charged within 30 days of the date of billing.
(iii) When NED acts under paragraphs (g)(4)(i) or (ii) above, the administrative time limits prescribed in subsection (a)(6) of the FOIA will begin only after NED has received fee payments described above.
(5) Form of payment – Remittances shall be in the form of a personal check or bank draft drawn on any bank in the United States, a postal money order, or cash. Remittances shall be made payable to the order of: National Endowment for Democracy. NED will assume no responsibility for cash lost in the mail.
(h) Fee waiver or reduction. NED shall furnish documents without charge or at a charge reduced below the fees established by these regulations if disclosure of the information is in the public interest because the disclosure of the information is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester. In making a determination under this subsection, NED shall consider these factors in the following order:
(1) Whether the subject of the request for documents concerns the operations or activities of the government. For purposes of determining whether this factor is met:
(i) Records generated by a non-government entity are less likely to respond to a request for documents concerning the operations or activities of the government;
(ii) Records that are sought for their intrinsic informational content apart from their informative value with respect to specific activities or operations of government are less likely to meet this factor.
(2) Whether the information requested is likely to contribute to an understanding of government operations or activities. For purposes of determining whether the request meets this factor:
(i) NED will consider the extent to which the information requested already exists in the public domain;
(ii) NED will consider the extent to which the value of the information relates to an understanding of government operations or activities as opposed to the extent to which the information relates to other subjects.
(3) Whether the information requested will contribute to public understanding of government operations or activities. For purposes of determining whether the request meets this factor:
(i) NED will consider whether the disclosure will contribute to a public understanding as opposed to a primarily personal understanding of the requester;
(ii) NED will consider the identity of the requester to determine whether such requester is in a position to contribute to public understanding through disclosure of the information. Requesters shall describe their qualifications to satisfy this consideration;
(iii) NED will consider the expertise of the requester and the extent to which the expertise will enable the requester to extract, synthesize and convey the information to the public. Requesters shall describe their qualifications to satisfy this consideration;
(4) Whether the contribution to public understanding will be significant. In determining whether this factor has been met:
(i) NED will consider whether the public’s understanding of the subject matter in question is likely to be enhanced by the disclosure of information by a significant extent;
(ii) NED will compare the likely level of public understanding of the subject matter of the request before and after disclosure.
(5) After NED is satisfied that factors (h)(1) through (4) have been met, it will consider whether the requested disclosure is primarily in the commercial interest of the requester.
(i) For purposes of this subsection, commercial interest is one that furthers a commercial, trade, or profit interest as those terms are commonly understood. Under this subsection, a “commercial interest” shall not be an interest served by a request for records supporting the news dissemination function of the requester. All requesters who seek a fee waiver under section (h) of these regulations must disclose any and all commercial interests that would be furthered by the requested disclosure. NED shall use this information, information in its possession, reasonable inferences drawn from the requester’s identity, and the circumstances surrounding the request to determine whether the requester has any commercial interest that would be furthered by the disclosure. If information that NED obtains from a source other than the requester or reasonable inferences or other circumstances are used in making a determination under this paragraph (h)(5), NED shall inform the requester of the information, inferences or circumstances that were used in its initial determination. The requester may, prior to filing an appeal of the initial determination with the President of NED or his designee under paragraph (a)(2) of this section, provide further information to rebut such reasonable inferences, or to clarify the circumstances of the request to the person responsible for the initial determination. Such action by the requester must occur within 20 days of the initial determination by NED. Within 10 days of receipt of such further information, clarification, or rebuttal, NED shall respond to the additional information, reverse or affirm its original position and state the reasons for the reversal or affirmation. Receipt of an affirmation by the requester shall constitute an initial denial of a request for purposes of the appeal process described in paragraphs (a) and (b) of this section.
(ii) NED shall consider the magnitude of the requester’s commercial interest. In making a determination under this factor, NED shall consider the role that the disclosed information plays with respect to the requester’s commercial interests and the extent to which the disclosed information serves the range of commercial interests of the requester.
(iii) NED shall weigh the magnitude of the identified commercial interest of the requester against the public interest in disclosure in order to determine whether the disclosure is primarily in the commercial interest of the requester. If the magnitude of the public interest in disclosure is greater than the magnitude of the requester’s commercial interest, NED shall grant a full or partial fee waiver.
(6) In determining whether to grant a full or partial fee waiver, NED shall, to the extent possible, identify the portion of the information sought by the requester that satisfies the standard governing fee waivers set forth in FOIA, as amended, 5 U.S.C. 552(a)(4)(A)(iii), and in paragraphs (h)(1) through (6) of this section, and grant a fee waiver with respect to those documents. Fees for reproduction of documents that do not satisfy these standards shall be assessed as provided in paragraphs (c) through (g) of this section.
(i) Except as provided in paragraph (h)(5)(i) of this section, a requester may appeal a determination of the fees to be charged or waived under these regulations as he or she would appeal an initial determination of documents to be disclosed under paragraphs (a) and (b) of this section.
§ 66.6 Exemptions.
NED reserves the right to withhold records and information that are exempt from disclosure under FOIA. See 5 U.S.C. 552(b).
§ 66.7 Limitation of exemptions.
FOIA does not authorize withholding of information or limit the availability of NED records to the public except as specifically stated in this part. Nor is authority granted to withhold information from Congress.
§ 66.8 Reports.
On or before March 1 of each calendar year, NED shall submit a reporting covering the preceding calendar year to the Speaker of the House of Representatives and the President of the Senate for referral to the appropriate committees of the Congress. The report shall include those items specified at 5 U.S.C. 552(d).
PART 67 – ORGANIZATION OF THE NATIONAL ENDOWMENT FOR DEMOCRACY
§ 67.1 Introduction.
(a) The National Endowment for Democracy (hereinafter “NED”) was created in 1983 to stregthen democratic values and institutions around the world through nongovernmental efforts. Incorporated in the District of Columbia and governed by a bipartisan Board of Directors, NED is tax-exempt, nonprofit, private corporation as defined in section 501(c)(3) of the Internal Revenue Code. Through its worldwide grant program, NED seeks to enlist the energies and talents of private citizens and groups to work with partners abroad who wish to build for themselves a democratic future.
(b) Since its establishment in 1983, NED has received an annual appropriation approved by the United States Congress as part of the United States Information Agency budget. Appropriations for NED are authorized in the National Endowment for Democracy Act (the “Act”), 22 U.S.C. 4411 et seq.
(c) The activities supported by NED are guided by the six purposes set forth in NED’s Articles of Incorporation and the National Endowment for Democracy Act. These six purposes are:
(1) To encourage free and democratic institutions throughout the world through private-sector initiatives, including activities which promote the individual rights and freedoms (including internationally recognized human rights) which are essential to the functioning of democratic institutions;
(2) To facilitate exchanges between U.S. private sector groups (especially the two major American political parties, labor and business) and democratic groups abroad;
(3) To promote U.S. nongovernmental participation (especially through the two major American political parties, labor, and business) in democratic training programs and democratic institution-building abroad;
(4) To strengthen democratic electoral processes abroad through timely measures in cooperation with indigenous democratic forces;
(5) To support the participation of the two major American political parties, labor, business, and other U.S. private-sector groups in fostering cooperation with those abroad dedicated to the cultural values, institutions, and organizations of democratic pluralism; and
(6) To encourage the establishment and growth of democratic development in a manner consistent both with the broad concerns of United States national interests and with the specific requirements of the democratic groups in other countries which are aided by NED-supported programs.
§ 67.2 Board of Directors.
(a) NED is governed by a bipartisan board of Directors of not fewer than thirteen and not more than twenty-five members reflecting the diversity of American society. The officers of the corporation are Chairman and Vice Chairman of the Board, who shall be members of the Board, a President, Secretary and Treasurer, and such other officers as the Board of Directors may from time to time appoint. Meetings of the Board of Directors are held at times determined by the Board, but in no event fewer than four times each year. A current list of members of the Board of Directors and a schedule of upcoming meetings is available from NED’s office at 1101 15th Street, NW; Suite 700, Washington, DC 20005-5000.
(b) All major policy and funding decisions are made by the Board of Directors. The primary statement of NED’s operating philosophy, general principles and priorities is contained in the National Endowment for Democracy’s Statement of Principles and Objectives, adopted by the Board of Directors in December 1984. Copies of this statement as well as other general information concerning the organization are available from NED on request.
(c) As a grantmaking organization, NED does not carry out programs directly. All grants made by the corporation shall be by a two-thirds vote of those voting at a meeting at which a quorum is present. Notwithstanding the foregoing, the Board may from time to time adopt, upon a two-thirds vote of those voting at a meeting at which a quorum is present, procedures to address emergency funding requests between meetings of the Board. In addition, “[a]ny Board member who is an officer or director of an organization seeking to receive grants from the Corporation must abstain from consideration of and any vote on such grant” (Article VI, Section 6). Copies of the bylaws are available from NED’s offices.
§ 67.3 Management.
(a) NED’s operations and staff are managed by a President selected by the Board of Directors. The President is the chief executive officer of the corporation and manages the business of the corporation under the policy direction of the Board of Directors. The President directs a staff whose functions are divided among the Office of the President, a Program Section and a Finance Office.
(b) The Office of the President provides policy direction and is responsible for day-to-day management of the organization, including personnel management, liaison with the Board of Directors and preparation of meetings of the Board and Board committees. The President’s office also provides information concerning NED’s activities to the press and public. The Program Section, under the direction of the Director of Program, is responsible for the review and preparation of proposals submitted to the Endowment and for the monitoring and evaluation of all programs funded by NED.
(c) The Finance Office, under the direction of the Comptroller, is responsible, with the President and the Board of Directors, for financial management of NED’s affairs, including both administrative financial management and grant management. The Director of Program and the Comptroller report to the NED President.
§ 67.4 Description of functions and procedures.
(a) In accordance with the Statement of Principles and Objectives, NED is currently developing and funding programs in five substantive areas:
(1) Pluralism. NED encourages the development of strong, independent private-sector organizations, especially trade unions and business associations. It also supports cooperatives, civic and women’s organizations, and youth groups, among other organizations. Programs in the areas of labor and business are carried out, respectively, through the Free Trade Union Institute and the Center for International Private Enterprise.
(2) Democratic governance and political processes. NED seeks to promote strong, stable political parties committed to the democratic process. It also supports programs in election administration and law, as well as programs that promote dialogue among different sectors of society and advance democratic solutions to national problems.
(3) Education, culture and communications. NED funds programs that nourish a strong democratic civic culture, including support for publications and other communications media and training programs for journalists; the production and dissemination of books and other materials to strengthen popular understanding and intellectual advocacy of democracy; and programs of democratic education.
(4) Research. A modest portion of NED’s resources is reserved for research, including studies of particular regions or countries where NED has a special interest, and evaluations of previous or existing efforts to promote democracy.
(5) International cooperation. NED seeks to encourage regional and international cooperation in promoting democracy, including programs that strengthen cohesion among democracies and enhance coordination among democratic forces.
(b) As a grantmaking organization, NED has certain responsibilities that govern its relationship with all potential and actual grantees. Briefly, these are:
(1) Setting program priorities within the framework of the purposes outlined in NED’s articles of incorporation and contained in the legislation, and guided by the general policy Statement of the Board of Directors;
(2) Reviewing and vetting proposals, guided by the general guidelines and selection criteria adopted by the NED Board;
(3) Coordinating among all grantees to avoid duplication and to assure maximum program effectiveness;
(4) Negotiating a grant agreement which ensures a high standard of accountability on the part of each grantee;
(5) Financial and programmatic monitoring following the approval and negotiation of a grant, and ongoing and/or follow-up evaluation of programs prior to any subsequent funding of either a particular grantee or a specific program. Grantees will also be expected to monitor projects, to provide regular reports to NED on the progress of programs, and to inform NED promptly of any significant problems that could affect the successful implementation of the project. NED grantees will also conduct their own evaluations of programs.
(6) As a recipient of congressionally appropriated funds, NED has a special responsibility to:
(i) Operate openly,
(ii) Provide relevant information on programs and operations to the public, and
(iii) Ensure that funds are spent wisely, efficiently, and in accordance with all relevant regulations.
(c) Institutes representing business, labor, and the major political parties carry out programs which are central to NED’s purposes. As a result of their unique relationship to NED, institute programs are an integral part of NED’s priorities and the institutes themselves are “core” grantees. As such, the institutes, while subject to all the normal procedures governing NED’s relationships with grantees, will be treated differently in the following respects:
(1) The institutes will have the mandate to carry out programs funded by NED in their respective sectors of business, labor and political parties.
(2) As an integral part of the process of budgeting and setting program priorities, the NED Board will target a certain amount of its annual resources for institute programs in their respective fields of activity.
(3) Unlike its practice for the majority of its grantees, NED will fund significant administrative costs for each of the core grantees.
(4) Institute staff will assume responsibility for program development and preparation of proposals for the Board in each field of activity for which it has a special mandate.
(5) NED will expect its core grantees to perform their monitoring/evaluation function described in programmatic monitoring under Financial and programmatic monitoring above in a manner that will minimize the need to devote NED resources for these purposes. (Individual copies of the Grants Policy are available from the NED office.)
(6) As stated above, in awarding grants the Board is guided by established grant selection criteria. In addition to evaluating how a program fits within NED’s overall priorities, the Board considers factors such as the urgency of a program, its relevance to specific needs and conditions in a particular country, and the democratic commitment and experience of the applicant. NED is especially interested in proposals that originate with indigenous democratic groups. It is also interested in nonpartisan programs seeking to strengthen democratic values among all sectors of the democratic political spectrum.
(d) Selection criteria. In determining the relative merit of a particular proposal NED considers whether the grant application:
(1) Proposes a program that will make a concrete contribution to assisting foreign individuals or groups who are working for democratic ends and who need NED’s assistance.
(2) Proposes a program, project or activity which is consistent with current NED program priorities and contributes to overall program balance and effectiveness.
(3) Proposes an activity that meets an especially urgent need.
(4) Does not overlap with what others are doing well.
(5) Proposes a program that will encourage an intellectual climate which is favorable to the growth of democratic institutions.
(6) Proposes a program that is not only culturally or intellectually appealing, but will affect the education and the awareness of minorities and/or the less privileged members of a society.
(7) Originates from an organization within a particular country representing the group whose needs are to be addressed.
(8) Appears to be well thought out, avoiding imprudent activities and possibilities for negative repercussions.
(9) Takes into consideration not only what objectively could be significant to a certain society, but how the cultural traditions and values of that society will react to the project.
(10) Incorporates an analysis of the problem of democracy in the area in question and the method by which the proposed program will have a constructive impact on the problem.
(11) Proposes a program that will enhance our understanding of what really helps in aiding democracy.
(12) Creatively enlists supports for foreign democratic organizations.
(13) Encourages democratic solutions and peaceful resolution of conflict in situations otherwise fraught with violence.
(14) Proposes a program, project or activity that is clearly relevant to NED program objectives and not better funded by other government or private organizations. (Proposing organizations will be be referred to other funding organizations where substantial overlap exists.)
(15) Proposes a program or strategy that is appropriate to the circumstances in the country concerned.
(16) Proposes a program that can be expected to have a multiplier effect, hence having an impact broader than that of the specific project itself; or establishes a model that could be readily replicated in other countries or institutions.
(17) Proposes appropriate, qualified staff who have a demonstrated ability to administer programs capably so as to accomplish stated goals and objectives.
(18) Proposes an appropriate ratio of administrative to program funds.
(19) Is responsive to NED suggestions with regard to program revisions.
(20) Proposes a realistic budget that is consistent with NED perceptions of project value and is performed within a stated and realistic time frame; and
(21) Proposes a program that has, as one of its principal aspects, a major impact on the role of women and/or minorities.
(e) The following guidelines also apply to all projects funded by NED.
(1) The proposing organization must be able to show that it is a responsible, credible organization or group that has a serious and demonstrable commitment to democratic values. (Various factors may be considered in this regard: recognized democratic orientation; established professional reputation; proven ability to perform; existence of organization charter, board of directors, regular audits, etc.);
(2) The proposing organization must be willing to comply with all provisions of the National Endowment for Democracy Act as well as all provisions of current and subsequent agreements between the USIA and NED;
(3) The proposing organization must agree not to use grant funds for the purpose of educating, training, or informing United States audiences of any U.S. political party’s policy or practice, or candidate for office. (This condition does not exclude making grants or expenditures for the purpose of educating, training or informing audiences of other countries on the institutions and values of democracy that may incidentally educate, train, or inform American participants);
(4) The proposing organization must agree that no NED funds will be used for lobbying or propaganda that is directed at influencing public policy decisions of the government of the United States or of any state or locality thereof;
(5) The proposing organization must agree that there shall be no expenditure of NED funds for the purpose of supporting physical violence by individuals, groups or governments;
(6) The proposing organization may not employ any person engaged in intelligence activity on behalf of the United States government or any other government;
(7) NED will not normally reimburse grantees for expenses incurred prior to the signing of a grant agreement with NED;
(8) Each grant made by NED will be an independent action implying no future commitment on NED’s part to a project or program;
(9) NED may, from time to time, fund feasibility studies. Applications for grants in this category should include, but not be limited to, the following: Scope, method and objective of the study; Calendar; Proposed administration of the study; and Detailed budget. The funding of a feasibility study by NED does not imply support for any project growing out of the study. It does, however, imply interest by NED in the area under study and a willingness to entertain a project proposal growing out of the study; and
(10) The proposing organization may not use NED funds to finance the campaigns of candidates for public office.
(f) All proposals received by NED are reviewed by the staff in order to determine their congruence with NED’s purposes as stated in the organization’s Articles of Incorporation and the NED Act.
(g) Grant applications must contain the following information:
(1) A one-page summary of the proposed program;
(2) Organizational background and biographical information on staff and directors in the U.S. and abroad;
(3) A complete project description, including a statement of objectives, a project calendar, and a description of anticipated results;
(4) A statement describing how the project relates to NED’s purposes;
(5) A description of the methods to be used to evaluate the project in relation to its objectives;
(6) A detailed budget, including an explanation of any counterpart support anticipated by the applicant, whether monetary or in-kind, domestic or foreign; and
(7) The names and addresses of all other funding organizations to which the proposal has been submitted or will be submitted.
(h) After an award determination has been made by the Board, NED enters into a grant agreement with the recipient. That agreement is made in accordance with NED policy, the terms of NED’s grant agreement with USIA, and the terms of the Act, and the terms of NED’s standard grant agreement as they apply to the specific project in question. The NED Board of Directors approved a revised Statement of General Procedures and Guidelines on September 12, 1986. The statement, outlined above, is available from the NED office.
(i) NED Staff welcomes preliminary letters of inquiry prior to submission of a formal proposal. Letters of inquiry and formal proposals should be submitted to: Director of Program, National Endowment for Democracy 1101 15th Street, NW, Suite 700, Washington, DC 20005-5000.
SUBCHAPTER H – PROTECTION AND WELFARE OF AMERICANS, THEIR PROPERTY AND ESTATES
PART 71 – PROTECTION AND WELFARE OF CITIZENS AND THEIR PROPERTY
Subpart A – General Activities
§ 71.1 Protection of Americans abroad.
Officers of the Foreign Service shall perform such duties in connection with the protection of American nationals abroad as may be imposed upon them by rules and regulations prescribed by the Secretary of State.
Diplomatic representatives and consular officers shall not request the presence of a naval force in a foreign port unless a public emergency so necessitates. The request may be addressed to the officers in command of the naval force, in which event responsibility of action rests with them, or it may be addressed to the Department of State. In either case, the request should contain detailed reasons for its submission.
§ 71.3 American claimants to foreign estates and inheritances.
Where treaty provisions, local laws, or established usage permit, a consular officer should protect the interests of American citizens claiming foreign estates and inheritances.
§ 71.4 Real property of deceased American citizens.
In the absence of special provisions by treaty the devolution and transfer of real property are covered by the law of the place where the property is situated. When real property is left by the decedent within the country where death occurs, or where the decedent was domiciled at the time of death, the consular officer, or diplomatic officer, if there be no consular officer, should if feasible informally observe the proceedings and report to the diplomatic mission or the Department any apparent irregularity or unnecessary delay in settling the estate.
§ 71.5 Storage or safekeeping of private property.
Except in a public emergency, no officer of the Foreign Service shall accept private property for storage or safekeeping in the office or for transmission to some other destination, unless it is property belonging to the estate of a deceased American citizen, or property over which the officer has jurisdiction as a result of a catastrophe at sea. In public emergencies, officers may accept private property for storage and safekeeping or for transmission to another destination, provided the owner signs a statement to the effect that the property is being accepted for deposit at his request, at his own risk, and with full knowledge that neither the Government of the United States nor any of its officers assumes responsibility therefor.
§ 71.6 Services for distressed Americans.
Officers of the Foreign Service shall extend every possible aid and assistance within their power to distressed American citizens within their districts, but they shall not expend the funds nor pledge the credit of the Government of the United States for this purpose, except in the case of American seamen, or except as authorized by the Department of State.
§ 71.7 Reports on catastrophes abroad.
Whenever a great catastrophe occurs abroad, either on land or on sea, the officer within whose district the catastrophe takes place or into whose district the survivors are brought shall report immediately by telegraph the names of any American citizens who have been killed or injured and the names of American citizens known to be safe.
§ 71.8 Assistance to American Red Cross.
Officers and employees of the Foreign Service may cooperate fully with the American Red Cross within their respective districts and subject to the limitations prescribed in § 102.806 (22 CFR, 1947 Supp.). They shall, however, avoid taking an active part in the solicitation of memberships or the collection of funds.
§ 71.9 Presentation of Americans at foreign courts.
The chief of the mission concerned may exercise his discretion in the matter of procuring the presentation of American citizens at the court of the country to which he is accredited.
Subpart B – Emergency Medical/Dietary Assistance for U.S. Nationals Incarcerated Abroad
§ 71.10 Emergency medical assistance.
(a) Eligibility criteria. A U.S. national incarcerated abroad is considered eligible to receive funded medical treatment under the following general criteria:
(1) Adequate treatment cannot or will not be provided by prison authorities or the host government;
(2) All reasonable attempts to obtain private resources (prisoner’s family, friends, etc.) have failed, or such resources do not exist;
(3) There are medical indications that the emergency medical assistance is necessary to prevent, or attempt to prevent, the death of the prisoners, or failure to provide the serviced will cause permanent disablement.
(b) Services covered. Funds, once approved, may be expended for:
(1) Medical examination, when required;
(2) Emergency treatment;
(3) Non-elective surgery;
(4) Medications and related medical supplies and equipment required on a routine basis to sustain life;
(5) Preventive or protective medications and medical supplies and equipment (vaccinations, inoculations, etc.) required to combat epidemic conditions (general or intramural);
(6) Childbirth attendance, including necessary medical care of newborn children; and
(7) Within the consular district, transportation for the U.S. national and attendant(s) designated by incarcerating officials between the place of incarceration and the place(s) of treatment.
(c) Consular responsibility. As soon as the consular officer is aware that a U.S. national prisoner in the consular district faces a medical crisis, the officer should take the following actions, setting forth the order or priority based on an evaluation of the facts received:
(1) Make every effort to contact the ill or injured prisoner as soon as possible;
(2) Take steps to obtain a professional medical diagnosis and prognosis of the ill or injured prisoner;
(3) Determine as accurately as possible the estimated costs of recommended treatment or surgery;
(4) Obtain the names and addreses of family or friends who might serve as a source of private funds for medical services, and attempt to obtain the necessary funds;
(5) Request the prisoner to execute a promissory note, since funds expended by the Department to cover medical services normally are on a reimbursable basis; and
(6) Submit the above information, along with recommendations and evaluations, to the Department for approval and authorization.
(d) Emergency expenditure authorization. When a medical emergency prohibits the delay inherent in contacting the Department and receiving authority to expend funds, the consular officer can expend up to an amount to be established by the Department without prior Departmental approval if:
(1) Symptoms determine eligibility for emergency medical treatment; or
(2) An immediate medical examination is warranted in order to verify the alleged abuse of a U.S. national prisoner by arresting or confining authorities; or
(3) Immediate emergency medical treatment or surgery is necessary to prevent death or permanent disablement, and there is insufficient time to explore private funds or obtain Department approval; and
(4) A promissory note already has been executed by the prisoner, or if the circumstances warrant, by the consular officer without recourse.
§ 71.11 Short-term full diet program.
(a) Eligibility criteria. A prisoner is considered eligible for the short-term full diet program under the following general criteria:
(1) The prisoner is to be or has been held in excess of one day in a holding jail or other facility;
(2) Incarcerating officials do not provide the prisoner food, and food is not available from any other sources, including private funding from family or friends; and
(3) If the funds exceed an amount to be established by the Department, the prisoner signs a promissory note for funds expended, since the assistance is on a normally reimbursable basis.
(b) Consular responsibility. As soon as the consular officer is aware that a U.S. national is incarcerated in a facility wherein food is not routinely provided, the consular officer should:
(1) Contact the prisoner in accordance with existing procedures;
(2) Determine the normal cost of basic diet and best method of effecting payment;
(3) Attempt to secure funds from private sources such as family or friends;
(4) Because funds expended by the Department to cover the short-term full diet program normally are on a reimbursable basis, have the prisoner execute a promissory note; and
(5) Contact the Department, providing the above information, for approval and authorization.
(c) Emergency expenditure authorization. Since an immediate need for a short-term full diet program often prohibits the delay inherent in contacting the Department and receiving authority to expend funds, the consular officer can expend up to an amount to be established by the Department without prior Departmental approval if the prisoner’s case meets the criteria established in paragraph (a) of this section. Expenditures above the predetermined limit must receive the prior approval of the Department.
§ 71.12 Dietary supplements.
(a) Eligibility criteria. A prisoner is considered eligible for the dietary supplement program under the following general criteria:
(1) An evaluation by a priviate physician, prison doctor, or other host country medical authority reveals that the prison diet does not meet the minimum requriements to sustain adequate health; or
(2) If the evaluation in paragraph (a)(1) of this section is not available, an evaluation by either a regional medical officer or Departmental medical officer reveals that the prison diet does not provide the minimum requirements to sustain adequate health.
(b) Consular responsibility. (1) When the consular officer is aware that the U.S. prisoner’s diet does not provide the minimum requirements to sustain adequate health, the consular officer shall obtain the necessary dietary supplements and distribute them to the prisoner on a regular basis.
(2) As soon as the consular officer believes that dietary supplements are being misused, the consular officer shall suspend provision of the dietary supplements and report the incident in full to the Department.
PART 72 – DEATHS AND ESTATES
Reporting Deaths of United States Nationals
§ 72.1 Definitions.
For purposes of this part:
(a) Consular officer includes any United States citizen employee of the Department of State who is designated by the Department of State to perform consular services relating to the deaths and estates abroad of United States nationals.
(b) Legal representative means –
(1) An executor designated by will intended to operate in the country where the death occurred or in the country where the deceased was residing at the time of death to take possession and dispose of the decedent’s personal estate;
(2) An administrator appointed by a court of law in intestate proceedings in the country where the death occurred or in the country where the deceased was residing at the time of death to take possession and dispose of the decedent’s personal estate;
(3) The next of kin, if authorized in the country where the death occurred or in the country where the deceased was residing at the time of death to take possession and dispose of the decedent’s personal estate; or
(4) An authorized agent of the individuals described in paragraphs (b)(1), (b)(2) and (b)(3) of this section.
(c) Department means the United States Department of State
§ 72.2 Consular responsibility.
When a consular officer learns that a United States citizen or non-citizen national has died in the officer’s consular district, the officer must –
(a) Report the death to the Department; and
(b) The officer must also try to notify, or assist the Secretary of State in notifying, the next of kin (or legal guardian) and the legal representative, if different from the next of kin, as soon as possible. See § 72.3 for exceptions to this paragraph.
§ 72.3 Exceptions.
If a consular office learns that a United States citizen or non-citizen national employee or dependent of an employee of a member of the United States Armed Forces, or a United States citizen or non-citizen national employee of another department or agency or a dependent of such an employee, or a Peace Corps volunteer as defined in 22 U.S.C. 1504(a) or dependent of a Peace Corps volunteer has died while in the officer’s consular district while the employee or volunteer is on assignment abroad, the officer should notify the Department. The consular officer should not attempt to notify the next of kin (or legal guardian) and legal representative of the death, but rather should assist, as needed, the appropriate military, other department of agency or Peace Corps authorities in making notifications of death with respect to such individual.
§ 72.4 Notifications of death.
The consular officer should make best efforts to notify the next of kin (or legal guardian), if any, and the legal representative (if any, and if different from the next of kin), of the death of a United States citizen or non-citizen national by telephone as soon as possible, and then should follow up with a written notification of death.
§ 72.5 Final report of death.
(a) Preparation. Except in the case of the death of an active duty member of the United States Armed Forces, when there is a local death certificate or finding of death by a competent local authority, the consular officer should prepare a consular report of death (“CROD”) on the form prescribed by the Department. The CROD will list the cause of death that is specified on the local death certificate or finding of death. The consular officer must prepare an original Report of Death, which will be filed with the Vital Records Section of Passport Services at the Department of State. The consular officer will provide a certified copy of the Report of Death to the next of kin or other person with a valid need for the Report within six months of the time of death. The next of kin or other person with a valid need for the Report may obtain additional certified copies after six months by contacting the Department of State, Vital Records, Passport Services, 1111 19th St., NW., Rm. 510, Washington, DC 20036.
(b) Provision to Department. The consular officer must sent the original of the CROD to the Department, with one additional copy for each agency concerned, if the deceased was:
(1) A recipient of continuing payments other than salary from the Federal Government; or
(2) An officer or employee of the Federal Government (other than a member of the United States Armed Services); or
(3) A Selective Service registrant of inductable age.
(c) Provision to next of kin/legal representative. The consular officer must provide a copy of the CROD to the next of kin (or legal guardian) or to each of the next of kin, in the event there is more than one (e.g. more than one surviving child) and to any known legal representative who is not the next of kin.
(d) Transmission of form to other consular districts. If the consular officer knows that a part of the personal estate of the deceased is in a consular district other than that in which the death occurred, the officer should send a copy of the CROD to the consular officer in the other district.
(e) The Department may revoke a CROD if it determines in its sole discretion that the CROD was issued in error.
§ 72.6 Report of presumptive death.
(a) Local finding. When there is a local finding of presumptive death by a competent local authority, a consular officer should prepare a consular report of presumptive death on the form prescribed by the Department.
(b) No local finding. (1) A United States citizen or non-citizen national may disappear or be missing in circumstances where it appears likely that the individual has died, but there is no local authority able or willing to issue a death certificate or a judicial finding of death. This may include, for example, death in a plane crash where there are no identifiable remains, death in a plane crash beyond the territory of any country, death in an avalanche, disappearance/death at sea, or other sudden disaster where the body is not immediately (or perhaps ever) recoverable.
(2) Authorization of issuance. The Department may authorize the issuance of a consular report of presumptive death in such circumstances. A consular report of presumptive death may not be issued without the Department’s authorization.
(3) Considerations in determining whether the Department will authorize issuance of a Report of Presumptive Death. The Department’s decision whether to issue a Report of Presumptive Death is discretionary, and will be based on the totality of circumstances in each particular case. Although no one factor is conclusive or determinative, the Department will consider the factors cited below, among other relevant considerations, when deciding whether to authorize issuance in a particular case:
(i) Whether the death is believed to have occurred within a geographic area where no sovereign government exercises jurisdiction;
(ii) Whether the government exercising jurisdiction over the place where the death is believed to have occurred lacks laws or procedures for making findings of presumptive death;
(iii) Whether the government exercising jurisdiction over the place where the death is believed to have occurred requires a waiting period exceeding five years before findings of presumptive death may be made;
(iv) Whether the person who is believed to have died was seen to be in imminent peril by credible witnesses;
(v) Whether the person who is believed to have died is reliably known to have been in a place which experienced a natural disaster, or catastrophic event, that was capable of causing death;
(vi) Whether the person believed to have died was listed on the certified manifest of, and was confirmed to have boarded, an aircraft, or vessel, which was destroyed and, despite diligent search by competent authorities, some or all of the remains were not recovered or could not be identified;
(vii) Whether there is evidence of fraud, deception, or malicious intent.
(c) Consular reports of presumptive death should be processed and issued in accordance with § 72.5.
(d) The Department may revoke a report of presumptive death if it determines in its sole discretion that the report was issued in error.
Disposition of Remains
§ 72.7 Consular responsibility.
(a) A consular officer has no authority to create Department or personal financial obligations in connection with the disposition of the remains of a United States citizen or non-citizen national who dies abroad. Responsibility for the disposition of the remains and all related costs (including but not limited to costs of embalming or cremation, burial expenses, cost of a burial plot or receptacle for ashes, markers, and grave upkeep), rests with the legal representative of the deceased. In the absence of a legal representative (including when the next of kin is not a legal representative), the consular officer should ask the next of kin to provide funds and instructions for disposition of remains. If the consular officer cannot locate a legal representative or next of kin, the consular officer may ask friends or other interested parties to provide the funds and instructions.
(b) Arrangements for the disposition of remains must be consistent with the law and regulations of the host country and any relevant United States laws and regulations. Local law may, for example, require an autopsy, forbid cremation, require burial within a certain period of time, or specify who has the legal authority to make arrangements for the disposition of remains.
(c) If funds are not available for the disposition of the remains within the period provided by local law for the interment or preservation of dead bodies, the remains must be disposed of by the local authorities in accordance with local law or regulations.
Personal Estates of Deceased United States Citizens and Nationals
§ 72.8 Regulatory responsibility of consular officer.
(a) A consular officer should act as provisional conservator of the personal estate of a United States citizen or non-citizen national who dies abroad in accordance with, and subject to, the provisions of §§ 72.9 through 72.27. The consular officer may act as provisional conservator only with respect to the portion of the personal estate located within the consular officer’s district.
(b) A consular officer may act as provisional conservator only to the extent that doing so is:
(1) Authorized by treaty provisions;
(2) Not prohibited by the laws or authorities of the country where the personal estate is located; or
(3) Permitted by established usage in that country.
§ 72.9 Responsibility if legal representative is present.
(a) A consular officer should not act as provisional conservator if the consular officer knows that a legal representative is present in the foreign country.
(b) If the consular officer learns that a legal representative is present after the consular officer has taken possession and/or disposed of the personal estate but prior to transmission of the proceeds and effects to the Secretary of State pursuant to § 72.25, the consular officer should follow the procedures specified in § 72.22.
§ 72.10 Responsibility if a will intended to operate locally exists.
(a) If a will that is intended to operate in the foreign country is discovered and the legal representative named in the will qualifies promptly and takes charge of the personal estate in the foreign country, the consular officer should assume no responsibility for the estate, and should not take possession, inventory and dispose of the personal property and effects or in any way serve as agent for the legal representative.
(b) If the legal representative does not qualify promptly and if the laws of the country where the personal estate is located permit, however, the consular officer should take appropriate protective measures such as –
(1) Requesting local authorities to provide protection for the property under local procedures; and/or
(2) Placing the consular officer’s seal on the personal property of the decedent, such seal to be broken or removed only at the request of the legal representative.
(c) If prolonged delays are encountered by the local or domiciliary legal representative in qualifying and/or making arrangements to take charge of the personal estate, the consular officer should consult the Department concerning whether the will should be offered for probate.
§ 72.11 Responsibility if a will intended to operate in the United States exists.
The consular officer immediately should forward any will that is intended to operate in the United States and that is among the effects taken into possession to the person or persons designated as executor(s). When the executor(s) cannot be located, the consular officer should send the will to the appropriate court in the State of the decedent’s domicile. Until the consular officer knows that a legal representative is present in the foreign country and has qualified or made arrangements to take charge of the personal estate, the consular officer should act as provisional conservator in accordance with § 72.8.
§ 72.12 Bank deposits in foreign countries.
(a) A consular officer is not authorized to withdraw or otherwise dispose of bank accounts and other assets deposited in financial institutions left by a deceased United States citizen or non-citizen national in a foreign country. Such deposits or other assets are not considered part of the personal estate of a decedent.
(b) The consular officer should report the existence of bank accounts and other assets deposited in financial institutions of which the officer becomes aware to the legal representative, if any. The consular officer should inform the legal representative of the procedures required by local law and the financial institution to withdraw such deposits, and should provide a list of local attorneys in the event counsel is necessary to assist in withdrawing the funds.
(c) A consular officer must not under any circumstances withdraw funds left by a deceased United States citizen or non-citizen national in a bank or financial institution in a foreign country without express approval and specific instructions from the Department.
§ 72.13 Effects to be taken into physical possession.
(a) A consular officer normally should take physical possession of articles such as the following:
(1) Convertibles assets, such as currency, unused transportation tickets, negotiable evidence of debts due and payable in the consular district, and any other instruments that are negotiable by the consular officer;
(2) Luggage;
(3) Wearing apparel;
(4) Jewelry, heirlooms, and articles generally by sentimental value (such as family photographs);
(5) Non-negotiable instruments, which include any document or instrument not negotiable by the consular officer because it requires either the signatures of the decedent or action by, or endorsement of, the decedent’s legal representative. Nonnegotiable instruments include, but are not limited to, transportation tickets not redeemable by the consular officer, traveler’s checks, promissory notes, stocks, bonds or similar instruments, bank books, and books showing deposits in building and loan associations, and
(6) Personal documents and papers.
(b) All articles taken into physical possession by a consular officer should be kept in a locked storage area on post premises. If access to storage facilities on the post premises cannot be adequately restricted, the consular officer may explore the possibility of renting a safe deposit box if there are funds available in the estate or from other sources (such as the next of kin).
§ 72.14 Nominal possession; property not normally taken into physical possession.
(a) When a consular officer take articles of a decedent’s personal property from a foreign official or other persons for the explicit purpose of immediate release to the legal representative such action is not a taking of physical possession by the officer. Before releasing the property, the consular officer must require the legal representative to provide a release on the form prescribed by the Department discharging the consular officer of any responsibility for the articles transferred.
(b) A consular officer is not normally expected to take physical possession of items of personal property such as:
(1) Items of personal property found in residences and places of storage such as furniture, household effects and furnishings, works of art, and book and wine collections, unless such items are of such nature and quantity that they can readily be taken into physical possession with the rest of the personal effects;
(2) Motor vehicles, airplanes or watercraft;
(3) Toiletries, such as toothpaste or razors;
(4) Perishable items.
(c) The consular officer should in his or her discretion take appropriate steps permitted under the laws of the country where the personal property is located to safeguard property in the personal estate that is not taken into the officer’s physical possession including such actions as:
(1) Placing the consular officer’s seal on the premises or on the property (whichever is appropriate);
(2) Placing such property in safe storage such as a bonded warehouse, if the personal estate contains sufficient funds to cover the costs of such safekeeping; and/or
(3) If property that normally would be sealed by the consular officer is not immediately accessible, requesting local authorities to seal the premises or the property or otherwise ensure that the property remains intact until consular seals can be placed thereon, the property can be placed in safe storage, or the legal representative can assume responsibility for the property.
(d) the consular officer may decide in his or her discretion to discard toiletries and perishable items.
§ 72.15 Action when possession is impractical.
(a) A consular officer should not take physical possession of the personal estate of a deceased United States citizen or non-citizen national in his or her consular district when the consular officer determines in his or her discretion that it would be impractical to do so.
(b) In such cases, the consular officer must take action that he or she determines in his or her discretion would be appropriate to protect t the personal estate such as:
(1) Requesting the persons, officials or organizations having custody of the personal estate to ship the property to the consular officer, if the personal estate contains sufficient funds to cover the costs of such shipment; or
(2) Requesting local authorities to safeguard the property until a legal representative can take physical possession.
§ 72.16 Procedure for inventorying and appraising effects.
(a) After taking physical possession of the personal estate of a deceased United States citizen or non-citizen national, the consular officer should promptly inventory the personal effects.
(b) If the personal estate taken into physical possession includes apparently valuable items, the consular officer may, in his or her discretion, seek a professional appraisal for such items, but only to the extent that there are funds available in the estate or from other sources (such as the next of kin) to cover the cost of appraisal.
(c) The consular officer must also prepare a list of articles not taken into physical possession, with an indication of any measures taken by the consular office to safeguard such items for submission with the inventory of effects.
§ 72.17 Final statement of account.
The consular officer may have to account directly to the parties in interest and to the courts of law in estate matters. Consequently, the officer must keep an account of receipts and expenditures for the personal estate of the deceased, and must prepare a final statement of account when turning over the estate to the legal representative, a claimant, or the Department.
§ 72.18 Payment of debts owed by decedent.
The consular officer may pay debts of the decedent which the consular officer believes in his or her discretion are legitimately owed in the country in which the death occurred, or in the country in which the decedent was residing at the time of death, including expenses incident to the disposition of the remains and the personal effects, out of the convertible assets of the personal estate taken into possession by the consular officer.
§ 72.19 Consular officer is ordinarily not to act as administrator of estate.
(a) A consular officer is not authorized to accept appointment from any foreign state or from a court in the United States and/or to act as administrator or to assist (except as provided in §§ 72.8 to 72.30) in administration of the personal estate of a United States citizen or non-citizen national who has died, or was residing at the time of death, in his or her consular district, unless the Department has expressly authorized the appointment. The Department will authorize such an appointment only in exceptional circumstances and will require the consular officer to execute bond consistent with 22 U.S.C. 4198 and 4199.
(b) The Department will not authorize a consular officer to serve as an administrator unless:
(1) Exercise of such responsibilities is:
(i) Authorized by treaty provisions or permitted by the laws or authorities of the country where the United States citizen or national died or was domiciled at the time of death; or
(ii) Permitted by established usage in that country; and
(2) The decedent does not have a legal representative in the consular district.
§ 72.20 Prohibition against performing legal services or employing counsel.
A consular officer may not act as an attorney or agent for the estate of a deceased United States citizen or non-citizen national overseas or employ counsel at the expense of the United States Government in taking possession and disposing of the personal estate of a United States citizen or non-citizen national who dies abroad, unless specifically authorized in writing by the Department. If the legal representative or other interested person wishes to obtain legal counsel, the consular officer may furnish a list of attorneys.
§ 72.21 Consular officer may not assume financial responsibility for the estate.
A consular officer is not authorized to assume any financial responsibility or to incur any expense on behalf of the United States Government in collecting and disposing of the personal estate of a United States citizen or national who dies abroad. A consular officer may incur expenses on behalf of the estate only to the extent that there are funds available in the estate or from other sources (such as the next of kin).
§ 72.22 Release of personal estate to legal representative.
(a) If a person or entity claiming to be a legal representative comes forward at any time prior to transmission of the decedent’s personal estate to the Secretary of State under 22 CFR 72.25, the consular officer may release the personal estate in his or her custody to the legal representative provided that:
(1) The legal representative presents satisfactory evidence of the legal representative’s right to receive the estate;
(2) The legal representative pays any fees prescribed for consular services provided in connection with the disposition of remains or protection of the estate (see 22 CFR 22.1);
(3) The legal representative executes a release in the form prescribed by the Department; and
(4) The Department approves the release of the personal estate.
(b) Satisfactory evidence of the right to receive the estate may include:
(1) In the case of an executor, a certified copy of letters testamentary or other evidence of legal capacity to act as executor;
(2) In the case of an administrator, a certified copy of letters of administration or other evidence of legal capacity to act as administrator;
(3) In the case of the agent of an executor or administrator, a power of attorney or other document evidencing agency (in addition to evidence of the executor’s or administrator’s legal capacity to act).
§ 72.23 Affidavit of next of kin.
If the United States citizen or non-citizen national who has died abroad did not leave a will that applies locally, and the personal estate in the consular district consists only of clothing and other personal effects that the consular officer concludes in his or her discretion is worth less than $2000 and/or cash of a value equal to or less than $2000, the consular officer may decide in his or her discretion to accept an affidavit from the decedent’s next of kin as satisfactory evidence of the next of kin’s right to take possession of the personal estate. The Department must approve any release based on an affidavit of next of kin where the consular officer concludes that the personal estate effects are worth more than $2000 and/or the cash involved is of a value more than $2000 and generally will consider approving such releases only in cases where state law prohibits the appointment of executors or administrators for estates that are valued at less than a specified amount and the law of the foreign country where the personal property is located would not prohibit such a release.
§ 72.24 Conflicting claims.
Neither the consular officer nor the Department of State has the authority or responsibility to mediate or determine the validity or order of contending claims to the personal estate of a deceased United States citizen or non-citizen national. If rival claimants, executors or administrators demand the personal estate in the consular officer’s possession, the officer should not release the estate to any claimant until a legally binding agreement in writing has been reached or until the dispute is settled by a court of competent jurisdiction, and/or the Department has approved the release.
§ 72.25 Transfer of personal estate to Department of State.
(a) If no claimant with a legal right to the personal estate comes forward, or if conflicting claims are not resolved, within one year of the date of death, the consular officer should sell or dispose of the personal estate (except for financial instruments, jewelry, heirlooms, and other articles of obvious sentimental value) in the same manner as United States Government-owned foreign excess property under Title IV of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 511 et seq.). If, however, a reasonable amount of additional time is likely to permit final settlement of the estate, the consular officer may in his or her discretion postpone the sale for that period of additional time.
(b) The consular officer should send to the custody of the Department the proceeds of any sale, together with all financial instruments (including bonds, shares of stock and notes of indebtedness), jewelry, heirlooms and other articles of obvious sentimental value, to be held in trust for the legal claimant(s).
(c) After receipt of a personal estate, the Department may seek payment of all outstanding debts to the estate as they become due, may receive any balances due on such estate, may endorse all checks, bills of exchange, promissory notes, and other instruments of indebtedness payable to the estate for the benefit thereof, and may take such other action as is reasonably necessary for the conservation of the estate.
§ 72.26 Vesting of personal estate in United States.
(a) If no claimant with a legal right to the personal estate comes forward within the period of five fiscal years beginning on October 1 after the consular officer took possession of the personal estate, title to the personal estate shall be conveyed to the United States, the property in the estate shall be under the custody of the Department, and the Department may dispose of the estate under as if it were surplus United States Government-owned property under title II of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 4811 et seq. or by such means as may be appropriate as determined by Department in its discretion in light of the nature and value of the property involved. The expenses of sales shall be paid from the estate, and any lawful claim received thereafter shall be payable to the extent of the value of the net proceeds of the estate as a refund from the appropriate Treasury appropriations account.
(b) The net cash estate shall be transferred to the miscellaneous receipts account of the Treasury of the United States.
§ 72.27 Export of cultural property; handling other property when export, possession, or import may be illegal.
(a) A consular officer should not ship, or assist in the shipping, of any archeological, ethnological, or cultural property, as defined in 19 U.S.C. 2601, that the consular officer is aware is part of the personal estate of a United States citizen or non-citizen national to the United States in order to avoid conflict with laws prohibiting or conditioning such export.
(b) A consular officer may refuse to ship, or assist in the shipping, of any property that is part of the personal estate of a United States citizen or non-citizen national if the consular officer has reason to believe that possession or shipment of the property would be illegal.
§ 72.28 Claims for lost, stolen, or destroyed personal estate.
(a) The legal representative of the estate of a decreased United States citizen or national may submit a claim to the Secretary of State for any personal property of the estate with respect to which a consular officer acted as provisional conservator, and that was lost, stolen, or destroyed while in the custody of officers or employees of the Department of State. Any such claim should be submitted to the Office of Legal Adviser, Department of State, in the manner prescribed by 28 CFR part 14 and will be processed in the same manner as claims made pursuant to 22 U.S.C. 2669-1 and 2669 (f).
(b) Any compensation paid to the estate shall be in lieu of the personal liability of officers or employees of the Department to the estate.
(c) The Department nonetheless may hold an officer or employee of the Department liability to the Department to the extent of any compensation provided to the estate. The liability of the officer or employee shall be determined pursuant to the Department’s procedures for determining accountability for United States government property.
Real Property Overseas Belonging to a Decreased United States Citizen or National
§ 72.29 Real property overseas belonging to deceased United States citizen or national.
(a) If a consular officer becomes aware that the estate of a deceased United States citizen or national includes an interest in real property located within the consular officer’s district that will not pass to any person or entity under the applicable local laws of intestate succession or testamentary disposition, and if local law provides that title may be conveyed to the Government of the United States, the consular officer should notify the Department.
(b) If the Department decides that it wishes to retain the property for its use, the Department will instruct the consular officer to take steps necessary to provide for title to the property to be conveyed to the Government of the United States.
(c) If title to the real estate is conveyed to the Government of the Unites States and the property is of use to the Department of State, the Department may treat such property as if it were an unconditional gift accepted on behalf of the Department of State under section 25 of the State Department Basic Authorities Act (22 U.S.C. 2697) and section 9(a)(3) of the Foreign Service Buildings Act of 1926 (22 U.S.C. 300(a)(3)).
(d) If the Department of State does not wish to retain such real property the Department may treat it as foreign excess property under title IV of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 511 et seq.).
§ 72.30 Provisions in a will or advanced directive regarding disposition of remains.
United States state law regarding advance directives, deaths and estates include provisions regarding a person’s right to direct disposition of remains. Host country law may or may not accept such directions, particularly if the surviving spouse/next-of-kin disagree with the wishes of the testator/affiant.
Fees
§ 72.31 Fees for consular death and estates services.
(a) Fees for consular death and estates services are prescribed in the Schedule of Fees, 22 CFR 22.1.
(b) The personal estates of all officers and employees of the United States who die abroad while on official duty, including military and civilian personnel of the Department of Defense and the United States Coast Guard are exempt from the assessment of any fees proscribed by the Schedule of Fees.
SUBCHAPTER I – SHIPPING AND SEAMEN
PART 89 – PROHIBITIONS ON LONGSHORE WORK BY U.S. NATIONALS
§ 89.1 Prohibitions on Longshore work by U.S. nationals; listing by country.
The Secretary of State has determined that, in the following countries, longshore work by crewmembers aboard United States vessels is prohibited by law, regulation, or in practice, with respect to the particular activities noted:
(a) Cargo loading and discharge.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exception: Opening and closing of hatches.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches,
(2) Rigging of ship’s gear, and
(3) Loading and discharge of cargo on board the ship if local labor is paid as if had done the work.
(a) All longshore activities.
(b) Exceptions: activities on board ship.
(a) All longshore activities.
(b) Exceptions: activities on board ship.
(a) All longshore activities.
(b) Exceptions:
(1) When shore labor cannot be obtained at rates prescribed by collective bargaining agreements,
(2) Operation of cargo-related equipment and opening and closing of hatches in small ports where there is insufficient shore labor, and
(3) Rigging of ship’s gear.
(a) Longshore activities on the pier.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment integral to the vessel when there is a shortage of port workers able to operate the equipment and with the permission of the port authority, and
(2) Opening and closing of hatches.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches,
(3) Rigging of ship’s gear, and
(4) Loading and discharge of cargo of less than 10 tons.
(a) All longshore activities.
(b) Exception: Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) Cargo handling,
(b) Operation of cargo-related equipment,
(c) Watchmen,
(d) Handling of mooring lines on the pier, and
(e) Other longshore activities on the pier.
(f) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions: Longshore activities on board ship.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches,
(2) Mooring and line handling on board ship, and
(3) Loading and discharge of supplies for the crew’s own needs, spare parts for small repairs and other non-commercial longshore activities.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of specialized self-loading/unloading log carriers on the Pacific Coast,
(2) Operation of self-loading/unloading equipment and line handling by the crews of bulk vessels calling at private terminals,
(3) Opening and closing of hatches,
(4) Cleaning of holds and tanks,
(5) Loading of ship’s stores,
(6) Operation of onboard rented equipment,
(7) Ballasting and deballasting, and
(8) Rigging of ship’s gear.
(c) Exceptions in connection with bulk cargo at Great Lakes ports only:
(1) Handling of mooring lines on the pier when the vessel is made fast or let go,
(2) Moving the vessel to place it under shoreside loading and unloading equipment,
(3) Moving the vessel in position to unload the vessel onto specific cargo piles, hoppers or conveyor belt systems, and
(4) Operation of cargo related equipment integral to the vessel.
(a) All longshore activities.
(a) Longshore activities on shore.
(b) Transfer of cargo to or from ship.
(a) Longshore activities on shore.
(a) All longshore activities.
(b) Exceptions: When local workers are unable or unavailable to provide longshore services.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment, and
(2) Opening and closing of hatches.
(a) All longshore activities.
(b) Exception: Operation of cargo-related equipment, when authorized by the Port Authority.
(a) Longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(a) All longshore activities.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) Local longshore workers get paid if crewmembers operate loading and unloading equipment.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear,
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment integral to the ship except to load and discharge cargo,
(2) Opening and closing of hatches,
(3) Rigging of ship’s gear, and
(4) Handling of mooring lines on the ship.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment belonging to the vessel,
(2) Opening and closing of hatches,
(3) Rigging of ship’s gear, and
(4) Special operations requiring special expertise, provided that local port workers are paid.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo-related equipment,
(2) Opening and closing of hatches,
(3) Rigging of ship’s gear, and
(4) Longshore activities for LASH vessels.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches,
(3) Rigging of ship’s gear, and
(4) Operation of computerized off-loading equipment when local expertise is not available.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Loading and discharge of the ship’s own material and provisions if done by the ship’s own equipment or by the owner of the merchandise using his own personnel,
(2) Opening and closing of hatches,
(3) Rigging of ship’s gear,
(4) Operation of cargo-related equipment to shift cargo internally,
(5) Handling operations connected with shipbuilding and refitting, and
(6) Offloading fish by the crew or personnel for the shipowner.
(a) All longshore activities.
(b) Exception: All longshore activities if local workers are paid as if they had done the work.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear,
(a) All longshore activities.
(b) Exception: All longshore activities if local workers are paid as if they had done the work.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) Operation of shore-based equipment to load/unload a vessel.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment aboard ship,
(2) Opening and closing of hatches,
(3) Rigging of ship’s gear, and
(4) Other activities with the prior approval of the port authority.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment aboard ship except to load or discharge cargo,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) Operation of equipment on the pier.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches,
(2) Rigging of ship’s gear, and
(3) Longshore activities in smaller harbors where there are no local port workers.
(a) All longshore activities.
(b) Exception: Operation of shipboard equipment that local port workers cannot operate.
(a) All longshore activities.
(b) Exceptions:
(1) With the permission of the port administrator, when no local port workers with requisite skills are available, and
(2) In the event of an emergency.
(a) All longshore activities on pier or on land at port.
(a) All longshore activities.
(b) Exceptions, other than for loading or discharging cargoes to and from the pier:
(1) Operation of cargo-related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions: Cargo loading, discharge, and transfer upon presentation of the following information:
(1) Documentation listing the vessel’s mechanical apparatus for cargo handling,
(2) A list of crewmembers who will perform the longshore activities,
(3) An insurance policy guaranteeing recovery for damages to persons or property in relation to the longshore activities.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of unusual hatches,
(2) Rigging of unusual ship’s gear, and
(3) Longshore activities on foreign government vessels or ships engaged on a community development or humanitarian project.
(a) All longshore activities.
(a) All longshore activities.
(a) All longshore activities.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches,
(2) Rigging of ship’s gear,
(3) In an emergency declared by the port authority, and
(4) Direct transfer of cargo from one ship to another.
(a) All longshore activities.
(b) Exceptions, when done in relation to ship safety, ship operation, or supervisory work to ensure that stevedoring is done correctly:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) Longshore activities on shore.
(a) All longshore activities.
(b) Exceptions: activities on board the vessel.
(a) Longshore activities on shore.
(a) Longshore activities on shore.
(a) All longshore activities.
(a) Longshore activities on the pier.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches,
(3) Rigging of ship’s gear, and
(4) Loading and discharge of hazardous materials.
(a) All longshore activities on shore.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) Loading and discharge of cargo.
(b) Exceptions:
(1) Operation of cargo-related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions, other than for normal cargo handling activities:
(1) Operation of cargo-related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exception: Preparation of cargo handling equipment to be operated by local port workers.
(a) Loading and discharge of merchandise,
(b) Rigging of ship from dockside, and
(c) Other longshore activities not onboard vessel.
(d) Exceptions:
(1) Operation of onboard cargo related equipment, and
(2) Rigging of ship’s gear onboard the ship, in coordination with local port workers.
(a) Loading and discharge of cargo.
(b) Exceptions:
(1) Operation of cargo-related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) Longshore activities on shore.
(b) Exceptions:
(1) Operation of cargo-related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions, with the authorization of the Harbor Master,
(1) Operation of cargo-related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exception: Regular crew activities on board ship, including operation of cargo-related equipment, opening and closing of hatches, and rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of ship’s gear,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities that take longer than 28 days of arriving in territorial waters.
(a) All longshore activities.
(b) Exception: Opening and closing of hatches and rigging of ship’s gear if local workers are paid as if they had done the work.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of ship’s gear,
(2) Opening and closing of hatches,
(3) Rigging of ship’s gear, and
(4) Instructing local employees on equipment.
(a) All longshore activities.
(b) Exceptions:
(1) Assisting in the operation of cargo related equipment if required,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) Longshore activities on shore, and
(b) Handling of mooring lines.
(c) Exception: Operation of equipment which pier workers are not capable of operating.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of sophisticated cargo-related equipment on container vessels,
(2) First opening and last closing of hatches and holds, and
(3) Cleaning of holds.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, if not related to cargo handling,
(2) Rigging of ship’s gear, if not related to cargo handling,
(3) Longshore activities for hazardous or polluting cargoes, and
(4) Longshore activities on government vessels.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo-related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Military operations,
(2) Operations in an emergency, when under the supervision of the maritime authorities,
(3) Security or inspection operations,
(4) Loading and discharge of supplies for the vessel and its crew,
(5) Loading and discharge of fuel and petroleum products at special terminals,
(6) Loading and discharge of chemical products if required for safety reasons,
(7) Placing of trailers and similar material in parking areas when done before loading or after discharge,
(8) Cleaning of the vessel,
(9) Loading, discharge, and disposal of merchandise in other boats, and
(10) Opening and closing hatches.
(a) All longshore activities.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of specialized shipboard equipment, and
(2) Loading and discharge of cargo requiring special operations.
(a) All longshore activities performed with local port equipment.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) Loading, discharge and handling of general cargo.
(b) Exceptions: activities on board the ship.
(a) All longshore activities.
(b) Exceptions: activities on board the ship.
(a) All longshore activities on shore.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches,
(2) Rigging of ship’s gear, and
(3) Cargo handling when necessary to ensure the safety or stability of the vessel.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo-related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ships gear.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) All longshore activities.
(a) Longshore activities on shore, and
(b) Operation of cargo related equipment to load and discharge cargo.
(a) All longshore activities.
(a) All longshore activities.
(a) All longshore activities on shore.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches operated automatically, and
(2) Raising and lowering of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) Longshore activities on shore.
(a) Loading and discharge of cargo.
(b) Exceptions:
(1) Operation of cargo-related equipment on board the ship,
(2) Opening and closing of hatches, and
(3) Rigging of ships gear.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo-related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities on shore.
(a) All longshore activities.
(b) Exception: Operation of specialized equipment that local port workers cannot operate.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo-related equipment,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) Longshore activities on shore.
(a) All longshore activities on shore.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of on-board cranes requiring expert operation or at the master’s request,
(2) Opening and closing of hatches, and
(3) Rigging of ship’s gear.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) Longshore activities on shore, at the discretion of the companies leasing and operating port facilities.
(a) All longshore activities.
(b) Exceptions:
(1) Operation of cargo-related equipment,
(2) Opening and closing of hatches,
(3) Rigging of ship’s gear, and
(4) Loading and discharge of cargo with on-board equipment when the port of call does not have the necessary equipment.
(a) All longshore activities.
(b) Exceptions:
(1) Opening and closing of hatches, and
(2) Rigging of ship’s gear.
(a) Longshore activities on shore.
SUBCHAPTER J – LEGAL AND RELATED SERVICES
PART 91 – IMPORT CONTROLS
§ 91.1 Answering inquiries regarding tariff acts and customs regulations.
In replying to inquiries received from exporters, travelers, or other interested parties, concerning tariff acts or customs regulations, consular officers shall refrain from giving, or appearing to give, decisions pertaining to matters upon which hey are not competent to pass.
§ 91.2 Furnishing samples to collectors of customs or appraising officers.
Upon the receipt of a request therefor from a collector of customs or appraising officer of the Government of the United States, a consular officer shall procure and forward samples of merchandise being imported or offered for importation into the United States from his particular district.
§ 91.3 Assistance to Customs and Tariff Commission representatives.
Consular officers shall render all proper assistance to Customs and Tariff Commission representatives abroad to aid them in the performance of their official duties.
§ 91.4 Alcoholic liquors on vessels of not over 500 tons.
(a) Upon request of interested shippers or masters of vessels at ports in the consular district other than the place where the consular office is situated, consular officers shall designate one or more reputable individuals residing in each such port, as authorized persons to witness the signatures of the masters of vessels of not over 500 net tons when affixed to declarations covering shipments of alcoholic liquors destined to the United States, and to issue certificates therefor as contemplated by section 7 of the Anti-Smuggling Act of 1935 (49 Stat. 520; 19 U.S.C. 1707). Any person so designated by a consular officer to issue such certificates shall state in each of his certificates that he has no interest in the shipment described therein. Having delivered the original document to the master, he shall forward the duplicate to the consular office for retention.
(b) Consular officers shall, with respect to declarations of masters of vessels of not over 500 net tons in instances in which the port of shipment is the same place as, or conveniently near to, the location of the consular office, supply their certifications directly as contemplated by the said section of the Anti-Smuggling Act. They shall retain, over the interval prescribed in the applicable records retirement schedule, a copy of each document so certified by them. They shall similarly retain the copies of the certifications supplied by authorized persons in outlying ports of the consular district, as set forth in the preceding subsection.
(c) This section, read together with § 4.13, title 19, of the Code of Federal Regulations, comprises the joint regulations contemplated for issuance by the Secretary of State and the Secretary of the Treasury under section 7 of the Anti-Smuggling Act of 1935.
PART 92 – NOTARIAL AND RELATED SERVICES
Introduction
§ 92.1 Definitions.
(a) In the United States the term notary or notary public means a public officer qualified and bonded under the laws of a particular jurisdiction for the performance of notarial acts, usually in connection with the execution of some document.
(b) The term notarial act means an act recognized by law or usage as pertaining to the office of a notary public.
(c) The term notarial certificate may be defined as the signed and sealed statement to which a “notarial act” is almost invariably reduced. The “notarial certificate” attests to the performance of the act by the notary, and may be an independent document or as in general American notarial practice, may be placed on or attached to the notarized document.
(d) For purposes of this part, except §§ 92.36 through 92.42 relating to the authentication of documents, the term notarizing officer includes consular officers, officers of the Foreign Service who are secretaries of embassy or legation under Section 24 of the Act of August 18, 1856, 11 Stat. 61, as amended (22 U.S.C. 4221), and such U.S. citizen Department of State employees as the Deputy Assistant Secretary of State for Overseas Citizens Services may designate for the purpose of performing notarial acts overseas pursuant to section 127(b) of the Foreign Relations Authorization Act, Fiscal Years 1994-1995, Pub. L. 103-236, April 30, 1994 (“designated employees”). The authority of designated employees to perform notarial services shall not include the authority to perform authentications, to notarize patent applications, or take testimony in a criminal action or proceeding pursuant to a commission issued by a court in the United States, but shall otherwise encompass all notarial acts, including but not limited to administering or taking oaths, affirmations, affidavits or depositions.
The notarial authority of a designated employee shall expire upon termination of the employee’s assignment to such duty and may also be terminated at any time by the Deputy Assistant Secretary for Overseas Citizen Services.
§ 92.2 Description of overseas notarial functions of the Department of State, record of acts.
The overseas notarial function of notarizing officers of the Department of State is similar to the function of a notary public in the United States. See § 22.5(b) of this chapter concerning the giving of receipts for fees collected and the maintenance of a register serving the same purposes as the record which notaries are usually expected or required to keep of their official acts.
§ 92.3 Consular districts.
Where consular districts have been established, the geographic limits of the district determine the area in which notarial acts can be performed by the notarizing officer. See § 92.41 (b) regarding authentication of the seals and signatures of foreign officials outside the consular district.
§ 92.4 Authority of notarizing officers of the Department of State under Federal law.
(a) All notarizing officers are required, when application is made to them within the geographic limits of their consular district, to administer to and take from any person any oath, affirmation, affidavit, or deposition, and to perform any notarial act which any notary public is required or authorized by law to perform within the United States. The term “notarial act” as used herein shall not include the performance of extraordinary acts, such as marriages, that have not been traditionally regarded as notarial, notwithstanding that notary publics may be authorized to perform such acts in some of the states of the United States. If a request is made to perform an act that the notarizing officer believes is not properly regarded as notarial within the meaning of this regulation, the officer shall not perform the act unless expressly authorized by the Department upon its determination that the act is a notarial act within the meaning of 22 U.S.C. 4215 and 4221. The language “within the limits of the consulate” is construed to mean within the geographic limits of a consular district. With respect to notarial acts performed by notarizing officers away from their office, see § 92.7. Notarial acts shall be performed only if their performance is authorized by treaty provisions or is permitted by the laws or authorities of the country wherein the notarizing officer is stationed.
(b) These acts may be performed for any person regardless of nationality so long as the document in connection with which the notarial service is required is for use within the jurisdiction of the Federal Government of the United States or within the jurisdiction of one of the States or Territories of the United States. (However, see also § 92.6.) Within the Federal jurisdiction of the United States, these acts, when certified under the hand and seal of office of the notarizing officer are valid and of like force and effect as if performed by any duly authorized and competent person within the United States. Documents bearing the seal and signature of a secretary of embassy or legation, consular officer (including consul general, vice consul or consular agent) are admissible in evidence within the Federal jurisdiction without proof of any such seal or signature being genuine or of the official character of the notarizing officer.
(c) Every notarizing officer may perform notarial acts for use in countries occupied by the United States or under its administrative jurisdiction, provided the officer has reason to believe that the notarial act will be recognized in the country where it is intended to be used. These acts may be performed for United States citizens and for nationals of the occupied or administered countries, who reside outside such countries, except in areas where another government is protecting the interests of the occupied or administered country.
(d) Chiefs of mission, that is, ambassadors and ministers, have no authority under Federal law to perform notarial acts except in connection with the authentication of extradition papers (see § 92.40).
(e) Consular agents have authority to perform notarial services but acting consular agents do not.
§ 92.5 Acceptability of notarial acts under State or territorial law.
The acceptability with the jurisdiction of a State or Territory of the United States of a certificate of a notarial act performed by a notarizing officer depends upon the laws of the State or Territory.
§ 92.6 Authority of notarizing officers under international practice.
Although such services are not mandatory, notarizing officers may, as a courtesy, perform notarial acts for use in countries with which the United States has formal diplomatic and consular relations. Generally the applicant for such service will be a United States citizen or a national of the country in which the notarized document will be used. The notarizing officer’s compliance with a request for a notarial service of this type should be based on the reasonableness of the request and the absence of any apparent irregularity. When a notarizing officer finds it advisable to do so, the officer may question the applicant to such extent as may be necessary to be assured of the reasonableness of the request and the absence of irregularity.
(a) That his notarial certificate may reasonably be expected to satisfy the legal requirements of the country in which the notarized document will be used;
(b) That the notarial service is legally necessary and cannot be obtained otherwise than through a United States notarizing officer without loss or serious inconvenience to the applicant; and
(c) That the notarial certifcate will be used solely for a well-defined purpose, as represented by the applicant for the service. (See also § 92.4(c) regarding notarial services for use in countries occupied by the United States or under its administrative jurisdiction.)
§ 92.7 Responsibility of notarizing officers of the Department of State.
(a) As a rule notarial acts should be performed at the consular office. Where required by the circumstances of a particular case and subject to the reasonableness of the request notarial acts may be performed elsewhere within the limits of the consulate subject to the assessment of the applicable fees under subheading “Services Rendered Outside of Office” of the Tariff of Fees (§ 22.1(a) of this chapter), as well as to payment by the interested party of the officer’s expenses in going to the place where the service is performed and returning to his office (§ 22.1(b) of this chapter).
(b) As indicated in §§ 92.4, 92.5, and 92.6, the authority of secretaries of embassy or legation as well as consular officers to perform notarial acts is generally recognized. However, the function is essentially consular, and notarial powers are in practice exercised by diplomatic officers only in the absence of a consular officer or U.S. citizen State Department employee designated to perform notarial functions as provided in § 92.1(d). Performance of notarial acts by an officer assigned in dual diplomatic and consular capacity shall be performed in his/her consular capacity, except in special circumstances.
General Notarial Procedures
§ 92.8 Compliance with request for notarial services.
A notarizing officer should comply with all proper requests for the performance of notarial services within the limitations prescribed in this part. (See particularly §§ 92.3 to 92.7). Moreover, as a representative of the United States Government, the notarizing officer, when acting in a notarial capacity, should take great care to prevent the use of his official seal in furthering any unlawful or clearly improper purpose. (See § 92.9 regarding refusal to perform notarial services in certain cases.)
§ 92.9 Refusals of requests for notarial services.
(a) A notarizing officer should refuse requests for notarial services, the performance of which is not authorized by treaty provisions or permitted by the laws or authorities of the country in which he is stationed. (See § 92.4(a).) Also, a notarizing officer should refuse to perform notarial acts for use in transactions which may from time to time be prohibited by law or by regulations of the United States Government such, for example, as regulations based on the “Trading With the Enemy Act of 1917,” as amended.
(b) A notarizing officer is also authorized to refuse to perform a notarial act if he had reasonable grounds for believing that the document in connection with which his notarial act is requested will be used for a purpose patently unlawful, improper or inimical to the best interests of the United States. Requests for notarial services should be refused only after the most careful deliberation.
§ 92.10 Specific waiver in notarial certificate.
If the notarizing officer has reason to believe that material statements in a document presented for notarization are false, and if no basis exists for refusing the notarial service in accordance with § 92.9, he may consider the advisability of informing the applicant that he will perform the service only with a specific waiver of responsibility included in the notarial certificate. Furthermore, a notarizing officer may, in his discretion, add to the specific waiver in the notarial certificate a statement of verifiable facts known to him, which will reveal the falsity of material in the document. However, normally a notarizing officer shall exercise great caution not to limit the general privilege of a United States citizen while abroad to execute under oath any statement he sees fit to make, including mistaken, unnecessary, and even frivolous statements: Provided, That substantial and compelling reasons do not exist which impel restraining action on the part of the notarizing officer. On the other hand, experience has shown the desirability of including, as standard practice, a specific waiver of responsibility in all authentications (§ 92.38) executed in connection with divorce proceedings.
§ 92.11 Preparation of legal documents.
(a) By attorneys. When a document has been prepared by an attorney for signature, a notarizing officer should not question the form of document unless it is obviously incorrect.
(b) By notarizing officers. A notarizing officer should not usually prepare for private persons legal documents for signature and notarization. (However, see the provisions in § 92.24 regarding the preparation of affidavits.) When asked to perform such a service, the notarizing officer should explain that the preparation of legal forms is normally the task of an attorney, that the forms used and the purposes for which they are used vary widely from jurisdiction to jurisdiction and that he could not guarantee the legal effectiveness of any document which he might prepare. The person desiring the preparation of a legal document should be referred to such publications as Jones Legal Forms and The Lawyers Directory with the suggestion that he select or adapt the form which appears best suited to his needs. The notarizing officer may, in his discretion, arrange to have a member of his office staff type the document. If the document is typed in the Foreign Service office, the fee for copying shall be collected as prescribed under the caption “Copying and Recording” of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter).
§ 92.12 Necessity for certification of notarial acts.
A notarizing officer must execute a written certificate attesting to the performance of a notarial act. This certificate may be inserted on or appended to the notarized document (see § 92.17 regarding the fastening of sheets). The certificate evidences the performance of the notarial act. Failure to execute this certificate renders the notarial act legally ineffective. Each notarial act should be evidenced by a separate certificate; two or more distinct notarial acts should not be attested to by one certificate.
§ 92.13 Form of notarial certificate.
The form of a notarial certificate depends on the nature of the notarial act it attests. (See §§ 92.18 to 92.48 for discussions of the various forms of notarial certificates.) Rules pertaining to venue, and signing and sealing, are common to all notarial certificates.
§ 92.14 Venue on notarial certificates.
(a) The term venue means the place where the certificate is executed. The venue must be shown on all notarial certificates to establish the qualifications and sphere of authority of the notarizing officer to perform the notarial act. The items characteristic of a typical venue, in the order of their appearance in the certificate, are as follows:
(1) Name of the country (or dominion, Territory, colony, island, as appropriate);
(2) Name of province or major administrative region (if none, this may be omitted);
(3) Name of local community (city, town, or village);
(4) Name of the Foreign Service post.
(b) When a notarial act is performed, and the notarial certificate executed, at a locality in a consular district other than the locality in which the Foreign Service office is situated, the venue should mention only the name of the country (or dominion, territory, colony, island, as appropriate), and the name of the consular district.
(c) The venue used at a Foreign Service post which has not been officially designated as an embassy, legation, consulate general, consulate, or consular agency should bear the notation “American Consular Service” in place of the post name.
§ 92.15 Signing notarial certificate.
The notarizing officer should sign a notarial certificate on the lower right-hand side. The name and full official title of the notarizing officer should by typed, stamped with a rubber stamp, or printed in ink on two separate lines immediately below his signature. When the notarizing officer is assigned to a Foreign Service post in both a diplomatic and consular capacity, he should use his consular title in the notarial certificate. (See § 92.7.)
§ 92.16 Sealing the notarial certificate.
The notarizing officer should seal a notarial certificate with the impression seal of the post on the lower left-hand side of the certificate. A notarial certificate executed at a Foreign Service post which has not been officially designated as an embassy, legation, consulate general, consulate, or consular agency should be sealed with an impression seal bearing the legend “American Consular Service” and the name of the locality.
§ 92.17 Fastening of pages.
When the instrument or document to which a notarial act relates consists of more than one sheet, or when the notarial certificate will be attached and not written on the document itself, the notarizing officer should bring all the sheets comprising the document together under his official seal.
Specific Notarial Acts
§ 92.18 Oaths and affirmations defined.
(a) Oath. An oath is an outward pledge given by the person taking it that his attestation or promise is made under an immediate sense of his responsibility to God. In a broad sense the word “oath” includes all forms of attestation by which a person signifies that he is bound in conscience to perform an act faithfully and truly, and in this sense it includes “affirmation”.
(b) Affirmation. An affirmation is a solemn and formal declaration or asseveration in the nature of an oath that a statement, or series of statements, is true. When an oath is required or authorized by law, an affirmation in lieu thereof may be taken by any person having conscientious scruples against taking an oath. As a general rule, an affirmation has the same legal force and effect as an oath.
§ 92.19 Administering an oath.
The usual formula for administering an oath is as follows: The officer administering the oath requests the person taking the oath to raise his right hand while the officer repeats the following words: “You do solemnly swear that the statements set forth in this paper which you have here signed before me are true. So help you God.” Whereupon the person taking the oath answers, “I do.”
§ 92.20 Administering an affirmation.
In administering an affirmation the procedure followed is generally the same as in the case of an oath, but the formula is varied by the use of the following words: “You do solemnly, sincerely, and truly affirm and declare that . . ., and this you do under the pains and penalties of perjury.”
§ 92.21 Notarial certificate to oath or affirmation.
The written statement attesting to the administration of an oath or affirmation is known as a jurat. The jurat must be signed and sealed by the notarizing officer (see §§ 92.15 and 92.16 on signing and sealing notarial certificates).
§ 92.22 “Affidavit” defined.
An affidavit is a written declaration under oath made before some person who has authority to administer oaths, without notice to any adverse party that may exist. One test of the sufficiency of an affidavit is whether it is so clear and certain that it will sustain an indictment for perjury, if found to be false. An affidavit differs from a deposition in that it is taken ex parte and without notice, while a deposition is taken after notice has been furnished to the opposite party, who is given an opportunity to cross-examine the witness.
§ 92.23 Taking an affidavit.
The notarizing officer taking an affidavit should:
(a) Satisfy himself, as far as possible, that his notarial act will be acceptable under the laws of the jurisdiction where the affidavit is to be used (see § 92.5);
(b) Require the personal appearance of the affiant at the time the affidavit is taken;
(c) Require satisfactory identification of the affiant; and
(d) Administer the oath to the affiant before the affiant signs the affidavit.
§ 92.24 Usual form of affidavit.
Affidavits are usually drawn by competent attorneys or are set out in established forms. The form and substantive requirements of an affidavit depend principally upon the purpose for which it is made and the statutes of the jurisdiction where it is intended to be used. When a notarizing officer finds it necessary in the discharge of his official duties to prepare an affidavit, or when he assists a private person in preparing an affidavit (see § 92.11(b)), he should, where possible, consult the pertinent statutory provisions.
§ 92.25 Title of affidavit.
Generally an affidavit taken for use in a pending cause must be entitled in that cause so that it will show to what proceedings it is intended to apply, and may support an indictment for perjury in case it proves to be false. If there is no suit pending at the time the affidavit is taken or if the affidavit is not to be used in any cause in court, no title need be given.
§ 92.26 Venue on affidavit.
The venue must always be given and should precede the body of the affidavit. (See § 92.14 regarding venue on notarial certificates generally.)
§ 92.27 Affiant’s allegations in affidavit.
(a) Substance of allegations. Although a notarizing officer is generally not responsible for the correctness of the form of an affidavit or the manner in which the allegations therein are set forth (see § 92.11(a) regarding the preparation of legal documents by attorneys; § 92.11(b) regarding the preparation of legal documents by notarizing officers; and § 92.24 regarding the form of an affidavit), he may, in appropriate instances, draw the affiant’s attention to the following generally accepted criteria as regards the substance of the allegations:
(1) Material facts within the personal knowledge of the affiant should be alleged directly and positively. Facts are not to be inferred where the affiant has it in his power to state them positively and fully.
(2) If the matters stated in the affiant’s affidavit rest upon information derived from others rather than on facts within his personal knowledge, he should aver that such matters are true to the best of his knowledge and belief.
(3) If the allegations made on information and belief are material, the sources of information and grounds of belief should be set out and a good reason given why a positive statement could not be made.
(4) If the conclusions of the affiant are drawn from the contents of documents, such contents should be set out or exhibited, so that the authority to whom the affidavit is presented may determine whether the affiant’s deductions are well founded.
(b) Veracity of allegations. Notarizing officers are not required to examine into the truth of the affiant’s allegations or to pass upon any contentious questions involved. In many instances the matters referred to in an affidavit will be of a technical or special nature beyond the officer’s general knowledge or experience. However, he may, in certain circumstances, refuse to take an affidavit. (See § 92.9 regarding the types of situations in which an officer might properly refuse to perform a notarial service; also see § 92.10 regarding the waiver and other statements which may be included in a notarial certificate where evidence exists of falsity in the affiant’s declaration.)
§ 92.28 Signature of affiant on affidavit.
The signature of the affiant is indispensable. The affiant should always sign the affidavit in the presence of the notarizing officer.
§ 92.29 Oath or affirmation to affidavit.
Affidavits made before notarizing officers must be sworn to or affirmed (see § 92.23(d)).
§ 92.30 Acknowledgment defined.
An acknowledgment is a proceeding by which a person who has executed an instrument goes before a competent officer or court and declares it to be his act and deed to entitle it to be recorded or to be received in evidence without further proof of execution. An acknowledgment is almost never made under oath and should not be confused with an oath (see § 92.18(a) for definition of oath). Moreover, an acknowledgment is not the same as an attestation, the latter being the act of witnessing the execution of an instrument and then signing it as a witness. Instruments requiring acknowledgment generally are those relating to land, such as deeds, mortgages, leases, contracts for the sale of land, and so on.
§ 92.31 Taking an acknowledgment.
(a) Officers’ assurance of acceptability of notarial act. A notarizing officer taking an acknowledgment should, if possible, ascertain the requirements of the jurisdiction in which the acknowledged document is to be used and execute the certificate in accordance with those requirements. Not all States or Territories will accept certificates of acknowledgment executed by notarizing officers other than consuls. Therefore, notarizing officers and consular agents who are called upon to perform this notarial act should consult the applicable State or territorial law to ascertain whether certificates of acknowledgment will be acceptable. (See § 92.5 regarding acceptability of consular notarial acts under state or territorial law.) Furthermore, public policy generally forbids that the act of taking and certifying an acknowledgment be performed by a person financially or beneficially interested in the transaction to which the acknowledged document relates. Notarizing officers should keep this point in mind, especially in connection with acknowledgments by members of their families.
(b) Personal appearance of grantor(s). A notarizing officer taking an acknowledgment should always require the personal appearance of the grantor(s), i.e., the person or persons who have signed the instrument to be acknowledged. Since the officer states in his certificate that the parties did personally appear before him, failure to observe this requirement invalidates the notarial act and makes the officer liable to the charge of negligence and of having executed a false certificate. A notarizing officer should never take an acknowledgment by telephone.
(c) Satisfactory identification of grantor(s). The notarizing officer must be certain of the identity of the parties making an acknowledgment. If he is not personally acquainted with the parties, he should require from each some evidence of identity, such as a passport, police identity card, or the like. The laws of some States and Territories require that the identity of an acknowledger be proved by the oath of one or more “credible witnesses”, and that a statement regarding the proving of identity in this manner be included in the certificate of acknowledgment. (See § 92.32(b) regarding forms of certificates of acknowledgment generally.) Mere introduction of a person not known to the notarizing officer, without further proof of identity, is not considered adequate identification for acknowledgment purposes.
(d) Explanation of contents of instrument. The notarizing officer must assure himself that the person acknowledging an instrument understands the nature of the instrument. If the person does not understand it, the officer is legally and morally bound to explain the instrument in such a way as to make the person who has signed it realize the character and effect of his act. This duty is particularly important where the signer of a document has little or no knowledge of the language in which the document is written.
(e) Acknowledgments of married women. Some of the States still require that a married woman who has executed an instrument of conveyance jointly with her husband be examined separately by the notarizing officer at the time the acknowledgments of the couple are taken. Notarizing officers should consult the applicable statutory provisions before taking the acknowledgments of a husband and wife to a document which they have both executed.
§ 92.32 Notarial certificate to acknowledgment.
(a) Title. The notarial certificate evidencing the taking of an acknowledgment is commonly known as a “certificate of acknowledgment” or sometimes simply as an “acknowledgment.”
(b) Form. The form of a certificate of acknowledgment varies widely depending on the laws of the jurisdiction where the acknowledged document is intended to be used, the purpose for which the document is intended, and the legal position of the persons who have executed it. Instruments to be acknowledged are frequently prepared on printed forms, the entire contract or deed being on one sheet together with the certificate of acknowledgment. Often the document, including the certificate of acknowledgment, is drawn up in advance by an attorney. In these cases, the notarizing officer may use the certificate which is already on the document, making whatever modifications are manifestly required to show that the certificate was executed by a notarizing officer. However, if he finds it necessary to prepare the certificate of acknowledgment, the officer should consult the appropriate reference work for guidance as to the proper form. When no prescribed form can be found, the officer should use the language in Form FS-88. Certificate of Acknowledgment of Execution of an Instrument, inserting the certificate immediately at the close of the deed on the last page if space permits, or, if a separate sheet is necessary, using the printed Form FS-88 itself.
§ 92.33 Execution of certificate of acknowledgment.
(a) When certificate should be executed. A notarizing officer should execute a certificate of acknowledgment immediately after the parties to the instrument have made their acknowledgment. Allowing several days or weeks to elapse between the time the acknowledgment is made and the certificate executed is undesirable, even though the officer may remember the acknowledgment act.
(b) Venue. The venue must be shown as prescribed in § 92.14.
(c) Date. The date in the certificate must be the date the acknowledgment was made. This is not necessarily the same as the date the instrument was executed. In fact, there is no reason why an instrument may not be acknowledged a year or more after the date of its execution, or at different times and places by various grantors.
(d) Names of parties. The name or names of the person or persons making the acknowledgment should appear in the certificate in the same form as they are set out in the acknowledged document, and in the same form as their signature on the instrument.
(e) Additional statements. When executing a certificate of acknowledgment on Form FS-88, the notarizing officer may include any necessary additional statements in the blank space below the body of the certificate.
(f) Signing and sealing certificate. The certificate of acknowledgment shall be signed and sealed as prescribed in §§ 92.15 and 92.16.
§ 92.34 Fastening certificate to instrument.
The proper place for the certificate of acknowledgment is after the signature of the parties to the instrument. If the instrument is a printed form, the certificate will almost invariably be a part of the form. When Form FS-88 is used or when the certificate must be prepared on a sheet separate from the instrument, it should be fastened to the instrument as the last sheet. The method of fastening notarial certificates is prescribed in § 92.17.
§ 92.35 Errors in certificate of acknowledgment.
A notarizing officer having taken an acknowledgment of an instrument and made a certificate of that fact cannot afterwards amend or change his certificate for the purpose of correcting a mistake. This can be done only by the parties reacknowledging the instrument. However, typographical errors may be corrected by striking out the erroneous characters and inserting the correct ones above. Such changes should be initiated by the parties who executed the instrument and by the notarizing officer.
§ 92.36 Authentication defined.
An authentication is a certification of the genuineness of the official character, i.e., signature and seal, or position of a foreign official. It is an act done with the intention of causing a document which has been executed or issued in one jurisdiction to be recognized in another jurisdiction. Documents which may require authentication include legal instruments notarized by foreign notaries or other officials, and copies of public records, such as birth, death, and marriage certificates, issued by foreign record keepers.
§ 92.37 Authentication procedure.
(a) The consular officer must compare the foreign official’s seal and signature on the document he is asked to authenticate with a specimen of the same official’s seal and signature on file either in the Foreign Service office or in a foreign public office to which he has access. If no specimen is available to the consular officer, he should require that each signature and seal be authenticated by some higher official or officials of the foreign government until there appears on the document a seal and signature which he can compare with a specimen available to him. However, this procedure of having a document authenticated by a series of foreign officials should be followed only where unusual circumstances, or the laws or regulations of the foreign country require it.
(b) Where the State law requires the consular officer’s certificate of authentication to show that the foreign official is empowered to perform a particular act, such as administering an oath or taking an acknowledgment, the consular officer must verify the fact that the foreign official is so empowered.
(c) When the consular officer has satisfactorily identified the foreign seal and signature (and, where required, has verified the authority of the foreign official to perform a particular act), he may then execute a certificate of authentication, either placing this certificate on the document itself if space is available, or appending it to the document on a separate sheet (see § 92.17 on the fastening of notarial certificates).
§ 92.38 Forms of certificate of authentication.
The form of a certificate of authentication depends on the statutory requirements of the jurisdiction where the authenticated document will be used (see § 92.39 regarding the provisions of Federal law). Before authenticating a document for use in a State or Territory of the United States, a consular officer should consult the pertinent law digest to ascertain what specific requirements must be met, or he should be guided by any special information he may receive from the attorney or other person requesting the document with regard to the applicable statutory requirements. (See § 92.41(e) regarding material which should not be in the certificate of authentication.) If no provisions relating to authentications can be found in a particular State or Territorial law digest, and in the absence of any special information from the attorney or other person requesting the document, the officer should prepare the certificate of authentication in the form which seems best suited to the needs of the case. When in his opinion the circumstances seem to warrant, and always in connection with certificates of marriage or divorce decrees, a consular officer should include in the body of his certificate of authentication a qualifying statement reading as follows: “For the contents of the annexed document I assume no responsibility.”
§ 92.39 Authenticating foreign public documents (Federal procedures).
(a) A copy of a foreign public document intended to be used as evidence within the jurisdiction of the Federal Government of the United States must be authenticated in accordance with the provisions of section 1 of the act of June 25, 1948, as amended (sec. 1, 62 Stat. 948, sec. 92(b), 63 Stat. 103; 28 U.S.C. 1741). This provision of Federal law provides that a copy of any foreign document of record, or on file in a public office of a foreign country or political subdivision thereof, if certified, by the lawful custodian thereof, may be admitted in evidence when authenticated by a certificate of a United States consular officer resident in the foreign country, under the seal of his office.
(b) The consular officer’s certificate should indicate that the copy has been certified by the lawful custodian.
(c) In the absence of a consular officer of the United States as an officer resident in the State of the Vatican City, a copy of any document of record or on file in a public office of said State of the Vatican City, certified by the lawful custodian of such document may be authenticated by a consular officer of the United States resident in Rome, Italy (22 U.S.C. 1204).
§ 92.40 Authentication of foreign extradition papers.
Foreign extradition papers are authenticated by chiefs of mission.
§ 92.41 Limitations to be observed in authenticating documents.
(a) Unknown seals and signatures. A consular officer should not authenticate a seal and signature not known to him. See § 92.37(a) regarding the necessity for making a comparison with a specimen seal and signature.
(b) Foreign officials outside consular district. A consular officer should not authenticate the seals and signatures of foreign officials outside his consular district.
(c) Officials in the United States. Consular officers are not competent to authenticate the seals and signatures of notaries public or other officials in the United States. However, diplomatic and consular officers stationed at a United States diplomatic mission may certify to the seal of the Department of State (not the signature of the Secretary of State) if this is requested or required in particular cases by the national authorities of the foreign country.
(d) Photostat copies. Consular officers should not authenticate facsimiles of signatures and seals on photographic reproductions of documents. They may, however, authenticate original signatures and seals on such photographic reproductions.
(e) Matters outside consular officer’s knowledge. A consular officer should not include in his certificate of authentication statements which are not within his power or knowledge to make. Since consular officers are not expected to be familiar with the provisions of foreign law, except in a general sense, they are especially cautioned not to certify that a document has been executed or certified in accordance with foreign law, nor to certify that a document is a valid document in a foreign country.
(f) United States officials in foreign countries. An authentication by a United States consular officer is performed primarily to cause the official characters and positions of foreign officials to be known and recognized in the United States. Consular officers should not, therefore, undertake to authenticate the seals and signatures of other United States officials who may be residing in their consular districts.
(g) Officers of the Foreign Service in other countries. An officer of the Foreign Service stationed in one country is not expected to authenticate the signature or seal of an officer of the Foreign Service stationed in another country. When it is necessary for the seal and signature of an officer of the Foreign Service to be authenticated, such authentication will be done in the Department of State. An official of a foreign government requesting the authentication of the seal and signature of an officer of the United States Foreign Service who is, or was, stationed in another country should be informed that the document to be authenticated will have to be sent to the Department for this purpose. Any document bearing the seal and signature of an officer of the Foreign Service which is received at a Foreign Service post from a person in the United States with the request that it be further authenticated should be referred to the Department of State.
§ 92.42 Certification of copies of foreign records relating to land titles.
In certifying documents of the kind described in title 28, section 1742, of the United States Code, diplomatic and consular officers of the United States will conform to the Federal procedures for authenticating foreign public documents (§ 92.39), unless otherwise instructed in a specific case.
§ 92.43 Fees for notarial services and authentications.
The fees for administering an oath or affirmation and making a certificate thereof, for the taking of an acknowledgment of the execution of a document and executing a certificate thereof, for certifying to the correctness of a copy of or an extract from a document, official or private, for authenticating a foreign document, or for the noting of a bill of exchange, certifying to protest, etc., are as prescribed under the caption Documentary services in the Schedule of Fees (§ 22.1 of this chapter), unless the service is performed under a “no fee” item of the same caption of the Schedule. If an oath or affirmation is administered concurrently to several persons and only one consular certificate (jurat) is executed, only one fee is collectible. If more than one person joins in making an acknowledgment but only one certificate is executed, only one fee shall be charged.
Depositions and Letters Rogatory
§ 92.49 “Deposition” defined.
A deposition is the testimony of a witness taken in writing under oath or affirmation, before some designated or appointed person or officer, in answer to interrogatories, oral or written. (For the distinction between a deposition and an affidavit see § 92.22.)
§ 92.50 Use of depositions in court actions.
Generally depositions may be taken and used in all civil actions or suits. In criminal cases in the United States, a deposition cannot be used, unless a statute has been enacted which permits a defendant in a criminal case to have a deposition taken in his own behalf, or unless the defendant consents to the taking of a deposition by the State for use by the prosecution. (For exception in connection with the proving of foreign documents for use in criminal actions, see § 92.65.)
§ 92.51 Methods of taking depositions in foreign countries.
Rule 28(b) of the Rules of Civil Procedure for the District Courts of the United States provides that depositions may be taken in foreign countries by any of the following four methods:
(a) Pursuant to any applicable treaty or convention, or
(b) Pursuant to a letter of request (whether or not captioned a letter rogatory), or
(c) On notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States. Notarizing officials as defined by 22 CFR 92.1 are so authorized by the law of the United States, or
(d) Before a person commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to administer any necessary oath and take testimony.
§ 92.52 “Deposition on notice” defined.
A deposition on notice is a deposition taken before a competent official after reasonable notice has been given in writing by the party or attorney proposing to take such deposition to the opposing party or attorney of record. Notarizing officers, as defined by 22 CFR 92.1, are competent officials for taking depositions on notice in foreign countries (see § 92.51). This method of taking a deposition does not necessarily involve the issuance of a commission or other court order.
§ 92.53 “Commission to take depositions” defined.
A commission to take depositions is a written authority issued by a court of justice, or by a quasi-judicial body, or a body acting in such capacity, giving power to take the testimony of witnesses who cannot appear personally to be examined in the court or before the body issuing the commission. In Federal practice, a commission to take depositions is issued only when necessary or convenient, on application and notice. The commission indicates the action or hearing in which the depositions are intended to be used, and the person or persons required to take the depositions, usually by name or descriptive title (see § 92.55 for manner of designating notarizing officers). Normally a commission is accompanied by detailed instructions for its execution.
§ 92.54 “Letters rogatory” defined.
In its broader sense in international practice, the term letters rogatory denotes a formal request from a court in which an action is pending, to a foreign court to perform some judicial act. Examples are requests for the taking of evidence, the serving of a summons, subpoena, or other legal notice, or the execution of a civil judgment. In United States usage, letters rogatory have been commonly utilized only for the purpose of obtaining evidence. Requests rest entirely upon the comity of courts toward each other, and customarily embody a promise of reciprocity. The legal sufficiency of documents executed in foreign countries for use in judicial proceedings in the United States, and the validity of the execution, are matters for determination by the competent judicial authorities of the American jurisdiction where the proceedings are held, subject to the applicable laws of that jurisdiction. See § 92.66 for procedures in the use of letters rogatory requesting the taking of depositions in foreign jurisdictions.
(a) Requests to take depositions or designations to execute commissions to take depositions. Any United States notarizing officer may be requested to take a deposition on notice, or designated to execute a commission to take depositions. A commission or notice should, if possible, identify the officer who is to take depositions by his official title only in the following manner: “Any notarizing officer of the United States of America at (name of locality)”. The notarizing officer responsible for the performance of notarial acts at a post should act on a request to take a deposition on notice, or should execute the commission, when the documents are drawn in this manner, provided local law does not preclude such action. However, when the officer (or officers) is designated by name as well as by title, only the officer (or officers) so designated may take the depositions. In either instance, the officer must be a disinterested party. Rule 28(c) of the Rules of Civil Procedure for the district courts of the United States prohibits the taking of a deposition before a person who is a relative, employee, attorney or counsel of any of the parties, or who is a relative or employee of such attorney or counsel, or who is financially interested in the action.
(b) Authority in Federal law. The authority for the taking of depositions, charging the appropriate fees, and imposing the penalty for giving false evidence is generally set forth in 22 U.S.C. 4215 and 4221. The taking of depositions for federal courts of the United States is further governed by the Federal Rules of Civil Procedure. For the provisions of law which govern particularly the taking of depositions to prove the genuineness of foreign documents which it is desired to introduce in evidence in any criminal action or proceeding is a United States federal court, see 18 U.S.C. 3491 through 3496.
(c) Procedure where laws of the foreign country do not permit the taking of depositions. In countries where the right to take depositions is not secured by treaty, notarizing officers may take depositions only if the laws or authorities of the national government will permit them to do so. Notarizing officers in countries where the taking of depositions is not permitted who receive notices or commissions for taking depositions should return the documents to the parties from whom they are received explaining why they are returning them, and indicating what other method or methods may be available for obtaining the depositions, whether by letters rogatory or otherwise.
§ 92.56 Summary of procedure for taking depositions.
In taking a deposition on notice or executing a commission to take depositions, a notarizing officer should conform to any statutory enactments on the subject in the jurisdiction in which the depositions will be used. He should also comply with any special instructions which accompany the request for a deposition on notice or a commission. Unless otherwise directed by statutory enactments or special instructions, the officer should proceed as follows in taking depositions:
(a) Request the witnesses, whose testimony is needed, to appear before him; or, at the request of any party to the action or proceeding, request designated persons to supply him or the requesting party with needed records or documents in their possession, or copies thereof;
(b) When necessary, act as interpreter or translater, or see that arrangements are made for some qualified person to act in this capacity;
(c) Before the testimony is taken, administer oaths (or affirmations in lieu thereof) to the interpreter or translator (if there is one), to the stenographer taking down the testimony, and to each witness;
(d) Have the witnesses examined in accordance with the procedure described in §§ 92.57 to 92.60;
(e) Either record, or have recorded in his presence and under his direction, the testimony of the witnesses;
(f) Take the testimony, or have it taken, stenographically in question-and-answer form and transcribed (see § 92.58) unless the parties to the action agree otherwise (rules 30(c) and 31(b), Rules of Civil Procedure for the District Courts of the United States);
(g) Be actually present throughout the examination of the witnesses, but recess the examination for reasonable periods of time and for sufficient reasons;
(h) Mark or cause to be marked, by identifying exhibit numbers or letters, all documents identified by a witness or counsel and submitted for the record.
§ 92.57 Oral examination of witnesses.
When a witness is examined on the basis of oral interrogatories, the counsel for the party requesting the deposition has the right to conduct a direct examination of the witness without interruption except in the form of objection by opposing counsel. The opposing counsel has the same right on cross-examination. Cross-examination may be followed by redirect and recross-examinations until the interrogation is complete. The notarizing officer taking the deposition should endeavor to restrain counsel from indulging in lengthy colloquies, digressions, or asides, and from attempts to intimidate or mislead the witness. The notarizing officer has no authority to sustain or overrule objections but should have them recorded as provided in § 92.59. Instead of taking part in the oral examination of a witness, the parties notified of the taking of a deposition may transmit written interrogatories to the notarizing officer. The notarizing officer should then question the witness on the basis of the written interrogatories and should record the answers verbatim. (Rules 30 (c) and 31 (b), Rules of Civil Procedure for the District Courts of the United States.)
§ 92.58 Examination on basis of written interrogatories.
Written interrogatories are usually divided into three parts:
(a) The direct interrogatories or interrogatories in chief;
(b) The cross-interrogatories; and
(c) The redirect interrogatories.
§ 92.59 Recording of objections.
All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objection to the proceedings must be noted in the deposition. Evidence objected to will be taken subject to the objections. (Rules 30 (c) and 31 (b), Rules of Civil Procedure for the District Courts of the United States.)
§ 92.60 Examination procedures.
(a) Explaining interrogatory to witness. If the witness does not understand what an interrogatory means, the notarizing officer should explain it to him, if possible, but only so as to get an answer strictly responsive to the interrogatory.
(b) Refreshing memory by reference to written records. A witness may be permitted to refresh his memory by referring to notes, papers or other documents. The notarizing officer should have such occurrence noted in the record of the testimony together with a statement of his opinion as to whether the witness was using the notes, papers or other documents to refresh his memory or for the sake of testifying to matters not then of his personal knowledge.
(c) Conferring with counsel. When the witness confers with counsel before answering any interrogatory, the notarizing officer should have that fact noted in the record of the testimony.
(d) Examining witness as to personal knowledge. The notarizing officer may at any time during the examination of a witness propound such inquiries as may be necessary to satisfy himself whether the witness is testifying from his personal knowledge of the subject matter of the examination.
(e) Witness not to leave officer’s presence. The notarizing officer should request the witness not to leave his presence during the examination, except during the recesses for meals, rest, etc., authorized in § 92.56 (g). Failure of the witness to comply with this request must be noted in the record.
§ 92.61 Transcription and signing of record of examination.
After the examination of a witness is completed, the stenographic record of the examination must be fully transcribed and the transcription attached securely to any document or documents to which the testimony in the record pertains. (See § 92.63 regarding the arrangement of papers.) The transcribed deposition must then be submitted to the witness for examination and read to or by him, unless such examination and reading are waived by the witness and by the parties to the action. Any changes in form or substance desired by the witness should be entered upon the deposition by the notarizing officer with a statement of the reasons given by the witness for making the changes. The witness should then sign the transcript of his deposition and should initial in the margin each correction made at his request. However, the signature and initials of the witness may be omitted if the parties to the action by stipulation waive the signing or if the witness is ill, refuses to sign, or cannot be found. If the deposition is not signed by the witness, the notarizing officer should sign it and should state on the record the reason for his action, i.e., the waiver of the parties, the illness or absence of the witness, or the refusal of the witness to sign, giving the reasons for such refusal. The deposition may then be used as though signed by the witness except when, on the motion to suppress, the court holds that the reasons given for the refusal to sign require the rejection of the deposition in whole or in part. (Rules 30 (e) and 31 (b), Rules of Civil Procedure for the District Courts of the United States.)
§ 92.62 Captioning and certifying depositions.
The notarizing officer should prepare a caption for every deposition; should certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness; and should sign and seal the certification in the manner prescribed in §§ 92.15 and 92.16. (Rules 30 (f) (1) and 31 (b), Rules of Civil Procedures for the District Courts of the United States.)
§ 92.63 Arrangement of papers.
Unless special instructions to the contrary are received, the various papers comprising the completed record of the depositions should usually be arranged in the following order from bottom to top:
(a) Commission to take depositions (or notice of taking depositions), with interrogatories, exhibits, and other supporting documents fastened thereto.
(b) Statement of fees charged, if one is prepared on a separate sheet.
(c) Record of the responses of the various witnesses, including any exhibits the witnesses may submit.
(d) Closing certificate.
§ 92.64 Filing depositions.
(a) Preparation and transmission of envelope. The notice or commission, the interrogatories, the record of the witnesses’ answers, the exhibits, and all other documents and papers pertaining to the depositions should be fastened together (see § 92.63 regarding the arrangement of papers) and should be enclosed in an envelope sealed with the wax engraving seal of the post. The envelope should be endorsed with the title of the action and should be marked and addressed. The sealed envelope should then be transmitted to the court in which the action is pending.
(b) Furnishing copies. The original completed depositions should not be sent to any of the parties to the action or to their counsel. However, the notarizing officer may furnish a copy of a deposition to the deponent or to any party to the action upon the payment of the copying fee and if certification is desired under official seal that the copy is a true copy, the certification fee prescribed in the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter).
§ 92.65 Depositions to prove genuineness of foreign documents.
(a) Authority to execute commission. Under the provisions of section 1 of the act of June 25, 1948, as amended (sec. 1, 62 Stat. 834, sec. 53, 63 Stat. 96; 18 U.S.C. 3492), a diplomatic or consular officer may be commissioned by an United States court to take the testimony of a witness in a foreign country either on oral or written interrogatories, or partly on oral and partly on written interrogatories, for the purpose of determining the genuineness of any foreign document (any book, paper, statement, record, account, writing, or other document, or any portion thereof, of whatever character and in whatever form, as well as any copy thereof equally with the original, which is not in the United States) which it is desired to introduce in evidence in any criminal action or proceeding in any United States court under the provisions of section 1 of the act of June 25, 1948 (sec. 1, 62 Stat. 945; 28 U.S.C. 1732). Such testimony may also be taken to determine whether the foreign document was made in the regular course of business and whether it was the regular course of business to make such document. The term “business” includes business, profession, occupation, and calling of every kind. (Sec. 1, 62 Stat. 945, 28 U.S.C. 1732.)
(b) Disqualification to execute commission. Any diplomatic or consular officer to whom a commission is addressed to take testimony, who is interested in the outcome of the criminal action or proceeding in which the foreign documents in question are intended to be used or who has participated in the prosecution of such action or proceeding, whether by investigations, preparation of evidence, or otherwise, may be disqualified on his own motion or on that of the United States or any other party to such criminal action or proceeding made to the court from which the commission issued at any time prior to the execution thereof. If, after notice and hearing, the court grants the motion, it will instruct the diplomatic or consular officer thus disqualified to send the commission to any other diplomatic or consular officer of the United States named by the court, and such other officer should execute the commission according to its terms and will for all purposes be deemed the officer to whom the commission is addressed. (Section 1, 62 Stat. 834, sec. 53, 63 Stat. 96; 18 U.S.C. 3492.)
(c) Execution and return of commission. (1) Commissions issued in criminal cases under the authority of the act of June 25, 1948, as amended, to take testimony in connection with foreign documents should be executed and returned by officers of the Foreign Service in accordance with section 1 of that act, as amended (sec. l, 62 Stat. 835; 18 U.S.C. 3493, 3494), and in accordance with any special instructions which may accompany the commission. For details not covered by such section or by special instructions, officers of the Foreign Service should be guided by such instructions as may be issued by the Department of State in connection with the taking of depositions generally. (See §§ 92.55 to 92.64.)
(2) Section 1 of the act of June 25, 1948 (sec. 1, 62 Stat. 835; 18 U.S.C. 3493) provides that every person whose testimony is taken should be cautioned and sworn to testify the whole truth and should be carefully examined. The testimony should be reduced to writing or typewriting by the consular officer, or by some person under his personal supervision, or by the witness himself in the presence of the consular officer, and by no other person. After it has been reduced to writing or typewriting, the testimony must be signed by the witness. Every foreign document with respect to which testimony is taken must be annexed to such testimony and must be signed by each witness who appears for the purpose of establishing the genuineness of such document.
(3) When counsel for all of the parties attend the examination of any witness whose testimony will be taken on written interrogatories, they may consent that oral interrogatories, in addition to those accompanying the commission, be put to the witness. The consular officer taking the testimony should require an interpreter to be present when his services are needed or are requested by any party or his attorney. (Section 1, 62 Stat. 835, 18 U.S.C. 3493.)
(4) Section 1 of the act of June 25, 1948 (sec. 1, 62 Stat. 835; 18 U.S.C. 3494) provides that the consular officer, who executes any commission authorized under the same section, as amended (sec. 1, 62 Stat. 834, sec. 53, 63 Stat. 96; 18 U.S.C. 3492) and who is satisfied, upon all the testimony taken, that a foreign document is genuine, should certify such document to be genuine under the seal of his office. This certification must include a statement that the officer is not subject to disqualification under the provisions of section 1 of the act of June 25, 1948, as amended (sec. 1, 62 Stat. 834, sec. 53, 63 Stat. 96; 18 U.S.C. 3492). For purposes of assessment of fees, the issuance of this certificate shall be regarded as a part of the consular service of executing the commission, and no separate fee shall be charged for the certificate.
(5) The consular officer should then forward such foreign documents, together with the record of all testimony taken and the commission which has been executed, to the Department of State for transmission to the clerk of the court from which the commission issued. (Section 1, 62 Stat. 835; 18 U.S.C. 3494.) (See § 92.64 regarding the filing of depositions generally.)
§ 92.66 Depositions taken before foreign officials or other persons in a foreign country.
(a) Customary practice. Under Federal law (Rule 28(b), Rules of Civil Procedure for the District Courts of the United States) and under the laws of some of the States, a commission to take depositions can be issued to a foreign official or to a private person in a foreign country. However, this method is rarely used; commissions are generally issued to U.S. notarizing officers. In those countries where U.S. notarizing officers are not permitted to take testimony (see § 92.55(c)) and where depositions must be taken before a foreign authority, letters rogatory are usually issued to a foreign court.
(b) Transmission of letters rogatory to foreign officials. Letters rogatory may often be sent direct from court to court. However, some foreign governments require that these requests for judicial aid be submitted through the diplomatic channel (i.e., that they be submitted to the Ministry for Foreign Affairs by the American diplomatic representative). A usual requirement is that the letters rogatory as well as the interrogatories and other papers included with them be accompanied by a complete translation into the language (or into one of the languages) of the country of execution. Another requirement is that provision be made for the payment of fees and expenses. Inquiries from interested parties or their attorneys, or from American courts, as to customary procedural requirements in given countries, may be addressed direct to the respective American embassies and legations in foreign capitals, or to the Department of State, Washington, DC 20520.
(c) Return of letters rogatory executed by foreign officials. (1) Letters rogatory executed by foreign officials are returned through the same channel by which they were initially transmitted. When such documents are returned to a United States diplomatic mission, the responsible officer should endorse thereon a certificate stating the date and place of their receipt. This certificate should be appended to the documents as a separate sheet. The officer should then enclose the documents in an envelope sealed with the wax engraving seal of the post and bearing an endorsement indicating the title of the action to which the letters rogatory pertain. The name and address of the American judicial body from which the letters rogatory issued should also be placed on the envelope.
(2) If the executed letters rogatory are returned to the diplomatic mission from the Foreign Office in an envelope bearing the seals of the foreign judicial authority who took the testimony, that sealed envelope should not be opened at the mission. The responsible officer should place a certificate on the envelope showing the date it was received at his office and indicating that it is being forwarded in the same condition as received from the foreign authorities. He should then place that sealed envelope in a second envelope, sealed with the wax engraving seal of the post, and bearing the title of the action and the name and address of the American judicial body from which the letters rogatory issued.
(3) Charges should be made for executing either of the certificates mentioned in paragraphs (c) (1) and (2) of this section, as prescribed by item 67 of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter), unless the service is classifiable in a no-fee category under the exemption for Federal agencies and corporations (item 83 of the same Tariff).
(4) The sealed letters rogatory should be transmitted by appropriate means to the court in which the action is pending. See title 28, section 1781, of the United States Code concerning the manner of making return to a court of the United States (Federal court).
(d) Transmissions of commissions to foreign officials or other persons. A commission to take depositions which is addressed to an official or person in a foreign country other than a United States notarizing officer may be sent directly to the person designated. However, if such a commission is sent to the United States diplomatic mission in the country where the depositions are intended to be taken, it should be forwarded to the Foreign Office for transmission to the person appointed in the commission. If sent to a United States consular office, the commission may be forwarded by that office directly to the person designated, or, if the notarial officer deems it more advisable to do so, he may send the commission to the United States diplomatic mission for transmission through the medium of the foreign office.
§ 92.67 Taking of depositions in United States pursuant to foreign letters rogatory.
(a) Authority and procedure. The taking of depositions by authority of State courts for use in the courts of foreign countries is governed by the laws of the individual States. As respects Federal practice, the district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the interntational tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege. This does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person or in any manner acceptable to him (28 U.S.C. 1782).
(b) Formulation of letters rogatory. A letter rogatory customarily states the nature of the judicial assistance sought by the originating court, prays that this assistance be extended, incorporates an undertaking of future reciprocity in like circumstances, and makes some provision for payment of fees and costs entailed in its execution. As respects Federal practice, it is not required that a letter rogatory emanating from a foreign court be authenticated by a diplomatic or consular officer of the United States or that it be submitted through the diplomatic channel; the seal of the originating court suffices. When testimony is desired, the letter rogatory should state whether it is intended to be taken upon oral or written interrogatories. If the party on whose behalf the testimony is intended to be taken will not be represented by counsel, written interrogatories should be attached. Except where manifestly unneeded (e.g. a Spanish-language letter rogatory intended for execution in Puerto Rico) or dispensed with by arrangement with the court, letters rogatory and interrogatories in a foreign language should be accompanied by English translations.
(c) Addressing letters rogatory. To avert uncertainties and minimize possibilities for refusal of courts to comply with requests contained in letters rogatory in the form in which they are presented, it is advisable that counsel for the parties in whose behalf testimony is sought ascertain in advance if possible, with the assistance of correspondent counsel in the United States or that of a consular representative or agent of his nation in the United States, the exact title of the court, Federal or State as the case may be, which will be prepared to entertain the letter rogatory. In Federal practice the following form of address is acceptable:
The U.S. District Court for the ______________________ (e.g. Northern, Southern) District of ____________________ (State) ____________________ (City) __________________, (State)
(d) Submitting letters rogatory to courts in the United States. A letter rogatory may be submitted to the clerk of the court of which assistance is sought, either in person or by mail. This may be direct by international mail from the originating foreign court. Alternatively, submission to the clerk of court may be effected in person or by mail by any party to the action at law or his attorney or agent, or by a consular officer or agent in the United States of the foreign national concerned. Finally, the Department of State has been authorized (62 Stat. 949; 28 U.S.C. 1781) to receive a letter rogatory issued, or request made, by a foreign or international tribunal, to transmit it to the tribunal, officer, or agency in the United States to whom it is addressed, and to receive and return it after execution. This authorization does not preclude –
(1) The transmittal of a letter rogatory or request directly from a foreign or international tribunal to the tribunal, officer, or agency in the United States to whom it is addressed and its return in the same manner; or
(2) The transmittal of a letter rogatory or request directly from a tribunal in the United States to the foreign or international tribunal, officer, or agency to whom it is addressed and its return in the same manner.
§ 92.68 Foreign Service fees and incidental costs in the taking of evidence.
The fees for the taking of evidence by officers of the Foreign Service are as prescribed by the Tariff or Fees, Foreign Service of the United States of America (§ 22.1 of this chapter), under the caption “Services Relating to the Taking of Evidence,” unless the service is performed for official use, which comes under the caption “Exemption for Federal Agencies and Corporations” of the same Tariff. See § 22.6 of this chapter concerning the requirement for advance deposit of estimated fees. When the party on whose behalf the evidence is sought or his local representative is not present to effect direct payment of such incidental costs as postage or travel of witnesses, the advance deposit required by the officer shall be in an amount estimated as sufficient to cover these in addition to the fees proper. The same rule shall apply to charges for interpreting or for the taking and transcribing of a stenographic record when performed commercially rather than by staff members at Tariff of Fee rates.
§ 92.69 Charges payable to foreign officials, witnesses, foreign counsel, and interpreters.
(a) Execution of letters rogatory by foreign officials. Procedures for payment of foreign costs will be by arrangement with the foreign authorities.
(b) Execution of commissions by foreign officials or other persons abroad. Procedure for the payment of foreign costs will be as arranged, by the tribunal requiring the evidence, with its commissioner.
(c) Witness fees and allowances when depositions are taken pursuant to commission from a Federal court. A witness attending in any court of the United States, or before a United States commissioner, or before any person authorized to take his deposition pursuant to any rule or order of a cut of the United States, shall receive $4 for each day’s attendance and for the time necessarily occupied in going to and returning from the same, and 8 cents per mile for going from and returning to his place of residence. Witnesses who are not salaried employees of the Government and who are not in custody and who attend at points so far removed from their respective residence as to prohibit return thereto from day to day shall be entitled to an additional allowance of $8 per day for expenses of subsistence, including the time necessarily occupied in going to and returning from the place of attendance (28 U.S.C. 1821, Supp. IV). Witnesses giving depositions before consular officers pursuant to a commission issued by the Federal Court are entitled to these fees and allowances, and the officer shall make payment thereof in the same manner as payment is made of other expenses involved in the execution of the commission, charging the advance deposit provided by the party at whose request the depositions are taken (see § 92.68). In any case to which the Government of the United States, or an officer or agency thereof, is a party, the United States marshal for the district will pay all fees of witnesses on the certificate of the United States Attorney or Assistant United States Attorney, and in the proceedings before a United States Commissioner, on the certificate of such commissioner (28 U.S.C. 1825).
§ 92.70 Special fees for depositions in connection with foreign documents.
(a) Fees payable to witnesses. Each witness whose testimony is obtained under a commission to take testimony in connection wtih foreign documents for use in criminal cases shall be entitled to receive compensation at the rate of $15 a day for each day of attendance, plus 8 cents a mile for going from his place of residence or business to the place of examination, and returning, by the shortest feasible route (18 U.S.C. 3495 and 3496, and E.O. 10307, 3 CFR, 1949-1953 Comp.). When, however it is necessary to procure the attendance of a witness on behalf of the United States or an indigent party, an officer or agent of the United States may negotiate with the witness to pay compensation at such higher rate as may be approved by the Attorney General, plus the mileage allowance stated above (5 U.S.C. 341). The expense of the compensation and mileage of each witness will be borne by the party, or parties, applying for the commission unless the commission is accompanied by an order of court (18 U.S.C. 3495(b) that all fees, compensations, and other expenses authorized by these regulations are chargeable to the United States (18 U.S.C. 3495).
(b) Fee payable to counsel. Each counsel who represents a party to the action or proceeding in the examination before the commissioner will receive compensation for each day of attendance at a rate of not less than $15 a day and not more than $50 a day, as agreed between him and the party whom he represents, plus such actual and necessary expenses as may be allowed by the commissioner upon verified statements filed with him. If the commission is issued on application of the United States, the compensation and expenses of counsel representing each party are chargeable to the United States under section 3495(b) of title 18 of the United States Code (18 U.S.C. 3495 and 3496, and E.O. 10307, 3 CFR, 1949-1953 Comp.).
(c) Fees payable to interpreters and translators. Each interpreter and translator employed by the commissioner under these regulations shall receive an allowance of $10 a day, plus 8 cents a mile for going from his place of residence or business to the place of examination and returning, by the shortest feasible route. The compensation and mileage of interpreters and translators shall be chargeable to the United States.
(d) Time for paying fees. Witnesses, counsel, interpreters, and translators will be paid, in accordance with the foregoing regulations, by the commissioner at the conclusion of their services. Other expenses authorized by these regulations will be paid by the commissioner as they are incurred.
(e) Payment of fees by the United States. When it appears that the commission was issued on application of the United States or when the commission is accompanied by an order of court that all fees, compensation, and other expenses authorized by these regulations are chargeable to the United States under section 3495(b) of title 18 of the United States Code, the commissioner shall execute the commission without charge for his service as commissioner in connection therewith. The Commissioner shall pay witnesses, counsel, interpreter, or translator, and other expenses authorized by these regulations through the disbursing officer in his area in accordance with instructions which will be issued in each case.
(f) Payment of fees by other parties. When fees, compensation, and other expenses authorized by this section are chargeable to any party other than the United States, the commissioner shall undertake the execution of the commission only if such party deposits with the Department of State or with the appropriate Foreign Service post, in advance, an amount to be set by the court as apparently adequate to defray all fees, compensation, and other expenses authorized by this part. If the amount of the deposit is later found to be insufficient, the depositor shall be so notified, and the commissioner shall retain the commission and other papers until a sufficient supplemental amount has been deposited. If the amount of the deposit exceeds the aggregate amount of fees, compensation, and other expenses authorized by this part, the excess shall be returned to the party, or parties, entitled thereto. The commissioner shall pay witnesses, counsel, interpreter, or translator, and other expenses authorized by this section, from the proceeds of a check which the disbursing officer for his area will be authorized to draw on the Treasurer of the United States.
§ 92.71 Fees for letters rogatory executed by officials in the United States.
Arrangements for the payment of fees should be made directly with the court in the United States by the party in the foreign country at whose request the depositions are taken, either through his legal representative in the United States or through the appropriate diplomatic or consular officer of his country in the United States. (See § 92.67 regarding the execution of letters rogatory in the United States.)
Miscellaneous Notarial Services
§ 92.72 Services in connection with patents and patent applications.
(a) Affidavit of applicant. The form of the affidavit of an applicant for a United States patent depends on who is making the application, the type of invention, and the circumstances of the case. Officers of the Foreign Service are not responsible for the correctness of form of such affidavits, and should not endeavor to advise in their preparation. Persons who inquire at a Foreign Service post regarding the filing of patent applications may be referred to the pamphlet entitled “General Information Concerning Patents,” if copies thereof are available at the post.
(b) Oath or affirmation of applicant – (1) Authority to administer oath or affirmation. When an applicant for a patent resides in a foreign country, his oath or affirmation may be made before any diplomatic or consular officer of the United States authorized to administer oaths, or before any officer having an official seal and authorized to administer oaths in the foreign country in which the applicant may be, whose authority shall be proved by certificate of a diplomatic or consular officer of the United States (35 U.S.C. 115). See paragraph (c) of this section regarding authentication of the authority of a foreign official. A notary or other official in a foreign country who is not authorized to administer oaths is not qualified to notarize an application for a United States patent.
(2) Form of oath or affirmation. See §§ 92.19 and 92.20 for usual forms of oaths and affirmations.
(3) Execution of jurat. In executing the jurat, the officer should carefully observe the following direction with regard to ribboning and sealing: When the oath is taken before an officer in a country foreign to the United States, all the application papers, except the drawings, must be attached together and a ribbon passed one or more times through all the sheets of the application, except the drawings, and the ends of said ribbon brought together under the seal before the latter is affixed and impressed, or each sheet must be impressed with the official seal of the officer before whom the oath is taken. If the papers as filed are not properly ribboned or each sheet impressed with the seal, the case will be accepted for examination but before it is allowed, duplicate papers, prepared in compliance with the foregoing sentence, must be filed. (Rule 66, Rules of Practice of the United States Patent Office.)
(c) Authentication of authority of foreign official – (1) Necessity for authentication. When the affidavit required in connection with a patent application been sworn to or affirmed before an official in a foreign country other than a diplomatic or consular officer of the United States, an officer of the Foreign Service authenticate the authority of the official administering the oath or affirmation (35 U.S.C. 115). If the officer of the Foreign Service cannot authenticate the oath or affirmation, the document should be authenticated by a superior foreign official, or by a series of superior foreign officials if necessary. The seal and signature of the foreign official who affixes the last foreign authentication to the document should then be authenticated by the officer of the Foreign Service.
(2) Use of permanent ink. All papers which will become a part of a patent application filed in the United States Patent Office must be legibly written or printed in permanent ink. (Rule 52, Rules of Practice of the United States Patent Office.) Consular certificates of authentication executed in connection with patent applications should preferably be prepared on a typewriter; they should not be prepared on a hectograph machine.
(d) Authority of a foreign executor or administrator acting for deceased inventor. Legal representatives of deceased inventors and of those under legal incapacity may make application for patent upon compliance with the requirements and on the same terms and conditions applicable to the inventor (35 U.S.C. 117). The rules of the Patent Office require proof of the power or authority of the legal representative. See paragraph (c) of this section for procedure for authenticating the authority of a foreign official.
(e) Assignments of patents and applications for patents. An application for a patent, or a patent, or any interest therein, may be assigned in law by an instrument in writing. The applicant, or the patentee, or his assigns or legal representatives, may grant and convey an exclusive right under the application for patent, or under the patent, to the whole or any specified part of the United States. Any such assignment, grant, or conveyance of any application for patent, or of any patent, may be acknowledged, in a foreign country, before “a diplomatic or consular officer of the United States or an officer authorized to administer oaths whose authority is proved by a certificate of a diplomatic or consular officer of the United States” (35 U.S.C. 261). See § 92.37 regarding authentication of the authority of a foreign official.
(f) Fees. The fee for administering an oath, taking an acknowledgment, or supplying an authentication, in connection with patent applications is as prescribed in item 49 of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter).
§ 92.73 Services in connection with trademark registrations.
(a) Authority and responsibility. Acknowledgments and oaths required in connection with applications for registration of trademarks may be made, in a foreign country, before any diplomatic or consular officer of the United States or before any official authorized to administer oaths in the foreign country whose authority must be proved by a certificate of a diplomatic or consular officer of the United States (15 U.S.C. 1061). The responsibility of officers of the Foreign Service in this connection is the same as that where notarial services in connection with patent applications are involved (see § 92.72(a)). (See § 92.72(c) regarding the authentication of the authority of a foreign official who performs a notarial service in connection with a patent application.)
(b) Fees. The fee for administering an oath, taking an acknowledgment, or supplying an authentication, in connection with an application for registration of a trademark, or with the assignment or transfer of rights thereunder, is as prescribed in item 49 of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter).
§ 92.74 Services in connection with United States securities or interests therein.
(a) Authority and responsibility. Assignments or requests for payment of United States securities, or securities for which the Treasury Department acts as transfer agent, or powers of attorney in connection therewith where authorized by the Treasury Department, should, in a foreign country, be executed before a United States consular or diplomatic officer. However, if they are executed before a foreign official having power to administer oaths, the Treasury Department requires that the official character and jurisdiction on the foreign official be certified by a United States diplomatic or consular officer. (See §§ 92.36 to 92.41 on authentications.)
(b) Fees. Officers of the Foreign Service should charge no fees for notarial services they perform in connection with the execution of documents, including the certification or authentication of documents where necessary, which affect United States securities or securities for which the Treasury Department acts as transfer agent, or which may be required in the collection of interest thereon. Item 58(b) of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter) applies in cases of this nature.
§ 92.75 Services in connection with income tax returns.
(a) Responsibility. Officers of the Foreign Service are authorized to perform any and all notarial services which may be required in connection with the execution of Federal, state, territorial, municipal, or insular income tax returns. Officers should not give advice on the preparation of tax returns.
(b) Fees. No charge under the caption “Notarial Services and Authentications” should be made for services performed in connection with the execution of tax returns for filing with the Federal or State Governments or political subdivisions thereof. When requested, see item 58(d) of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter).
Copying, Recording, Translating and Procuring Documents
§ 92.76 Copying documents.
(a) Consular authority. The consular officer is authorized to have documents, or abstracts therefrom, copied at a Foreign Service post, if he deems it advisable and it is practicable to do so. This service frequently is necessary in connection with the performance of certain notarial acts, such as the certification of copies of documents.
(b) Fees. The charges for making copies of documents are as prescribed by the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter), under the caption “Copying and Recording,” unless the service is Performed for official use, which comes under the caption Exemption for Federal Agencies and Corporations of the same Tariff.
§ 92.77 Recording documents.
(a) Consular authority. Consular officers may, at their discretion, accept for recording in the Miscellaneous Record Book of the office concerned unofficial documents such as deeds, leases, agreements, wills, and so on. The object of this service is primarily to afford United States citizens and interests the means of preserving, in official custody, records of their business and other transactions where other suitable facilities are not available locally for making such records. The recording of unofficial documents is not a notarial service, strictly speaking; however, the certifying of copies of documents thus recorded is a notarial service.
(b) Recording procedure. Generally, before accepting a document for recording the consular officer should require satisfactory proof of its genuineness. The document should be copied, word for word, in the Miscellaneous Record Book. At the close of the record a statement that it is a true copy of the original should be entered and signed by the consular officer who copies or compares the record. In the margin of the first page where the document is recorded, the consular officer should note the following data:
(1) By whom the document is presented for recording;
(2) On whose behalf the service is requested;
(3) Date and hour of presentation for recording;
(4) How the authenticity of the document was proved (where appropriate); and
(5) The name of the person by whom recorded (in his proper signature) and the name of the consular officer with whom compared (in his proper signature).
(c) Certificate of recording. Ordinarily, a certificate of recording need not be issued. The original document may simply be endorsed: “Recorded at (name and location of consular office) this __________ day of __________________, 19____, in (here insert appropriate reference to volume of Miscellaneous Record Book)”. Below the endorsement should appear the notation regarding the service number, the Tariff item number, and the amount of the fee collected. When a certificate of recording is requested, the consular officer may issue it, if he sees fit to do so. The certificate may be either entered on the document, if space permits, or appended to the document as a separate sheet in the manner prescribed in § 92.17.
(d) Fees. The fee for recording unofficial documents at a Foreign Service post is as prescribed under the caption “Copying and Recording” of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter). For purposes of assessment of fees, the issuance of certificates of recording, when requested, shall be regarded as part of the consular service of recording unofficial documents, and no separate fee shall be charged for the certificate.
§ 92.78 Translating documents.
Officers of the Foreign Service are not authorized to translate documents or to certify to the correctness of translations. (However, see § 92.56 with regard to interpreting and translating services which may be performed in connection with depositions.) They are authorized to administer to a translator an oath as to the correctness of a translation; to take an acknowledgment of the preparation of a translation; and to authenticate the seal and signature of a local official affixed to a translation. Separate fees should be charged for each of these services, as indicated under the caption “Notarial Services and Authentications” of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter).
§ 92.79 Procuring copies of foreign public documents.
(a) Nature of services. When requested to do so by United States citizens or by persons acting in behalf of United States citizens, a consular officer should endeavor to obtain from foreign officials copies of birth, death, and marriage certificates, or copies of other public records such as divorce decrees, probated wills, and so on. The interest of the party requesting the document should be clearly indicated, and there should be good reason for asking for the consular officer’s assistance. Persons requesting documents for use in the preparation of family trees or in the compilation of genealogical studies should be referred to a local attorney or to a genealogical research bureau if one is available.
(b) Payment of expenses involved – (1) Official funds not to be used. The use of official funds to pay for copies of or extracts from foreign public records obtained at the request of private persons is prohibited.
(2) Payment of costs by Federal Government. In instances of requests emanating from departments or agencies of the Federal Government for copies of or extracts from foreign public records, the Department will issue to Foreign Service posts concerned appropriate instructions with respect to the payment of whatever local costs may be entailed if the documents cannot be obtained gratis from the local authorities.
(3) Payment of costs by State or municipal governments. Should State, county, municipal or other authorities in the United States besides the Federal Government request the consular officer to obtain foreign documents, and express willingness to supply documents gratis in analogous circumstances, the consular officer may endeavor on that basis to obtain the desired foreign documents gratis. Otherwise, such authorities should be informed that they must pay the charges of the foreign officials, as well as any fees which it may be necessary for the consular officer to collect under the provisions of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter).
(4) Payment of costs by private persons. Before a consular officer endeavors to obtain a copy of a foreign public document in behalf of a private person, the person requesting the document should be required to make a deposit of funds in an amount sufficient to defray any charges which may be made by the foreign authorities, as well as the Foreign Service fee for authenticating the document, should authentication be desired.
§ 92.80 Obtaining American vital statistics records.
Individuals who inquire as to means of obtaining copies of or extracts from American birth, death, marriage, or divorce records may be advised generally to direct their inquires to the Vital Statistics Office at the place where the record is kept, which is usually in the capital city of the State or Territory. Legal directories and other published works of references at the post may be of assistance in providing exact addresses, information about fees, etc. An inquirer who is not an American citizen may write directly to the diplomatic or appropriate consular representative of his own country for any needed assistance in obtaining a desired document.
Quasi-Legal Services
§ 92.81 Performance of legal services.
(a) Legal services defined. The term “legal services” means services of the kind usually performed by attorneys for private persons and includes such acts as the drawing up of wills, powers of attorney, or other legal instruments.
(b) Performance usually prohibited – (1) General prohibition; exceptions. Officers of the Foreign Service should not perform legal services except when instructed to do so by the Secretary of State, or in cases of sudden emergency when the interests of the United States Government, might be involved, or in cases in which no lawyer is available and refusal to perform the service would result in the imposition of extreme hardship upon a United States citizen. There is no objection, however, to permitting persons to use the legal references in the Foreign Service office giving specimen forms of wills, powers of attorney, etc.
(2) Specific prohibitions and restrictions. See § 72.41 of this chapter for prohibition of performance of legal services by consular officers in connection with decedents’ estates. See § 92.11 restricting the preparation for private parties of legal documents for signature and notarization.
(3) Acceptance of will for deposit prohibited. Wills shall not be accepted for safekeeping in the office safe. If a person desires to have his last will and testament made a matter of record in a Foreign Service establishment, the officer to whom application is made shall have the will copied in the Miscellaneous Record Book (§ 92.77) and charge the prescribed fee therefor.
(c) Refusal of requests. In refusing requests for the performance of legal services, an officer of the Foreign Service should cite these regulations and should state clearly his reasons for refusing to act. In appropriate cases, the officer may furnish the inquirer with a copy of the annual list of attorneys (see § 92.82) practicing in the consular district or he may refer the inquirer to the Department for a list of attorneys.
(d) Waiver of responsibility. When an officer of the Foreign Service accedes to a request for the performance of a legal service, he should inform the applicant that the service is performed at the latter’s risk and without any responsibility on the part of the United States Government or the officer performing the service.
(e) Fees. No fee should be charged for any legal services which may be performed under these regulations, beyond the fees or charges for specific services enumerated in the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter).
§ 92.82 Recommending attorneys or notaries.
(a) Assistance in selecting American lawyers. When any person in the district of a Foreign Service post desires to have the name of an attorney in the United States, the officer at the post may refer him to American law directories or other published references at his disposal, but he shall refrain from recommending any particular attorney.
(b) Assistance in selecting foreign attorneys or notaries. Persons applying to a Foreign Service post for services of a legal or fiduciary character or for assistance in selecting an attorney or notary capable of rendering the services in view, may be furnished the names of several attorneys or notaries in the district, or referred to the lists to be found in American or foreign law directories or other published references. Alternatively, they may be referred to bar associations or, where applicable, to the organization charged by local law with the responsibility for providing legal assistance.
(c) Agreements for referral of legal business prohibited. Officers of the Foreign Service shall not recommend particular attorneys or notaries to persons who apply to a Foreign Service post for legal assistance, nor shall they make agreements with attorneys or notaries for the referral to them of inquiries for legal assistance.
§ 92.84 Legal process defined.
Legal process means a writ, warrant, mandate, or other process issuing from a court of justice. The term includes subpoenas, citations, and complaints.
§ 92.85 Service of legal process usually prohibited.
The service of process and legal papers is not normally a Foreign Service function. Except when directed by the Department of State, officers of the Foreign Service are prohibited from serving process or legal papers or appointing other persons to do.
§ 92.86 Consular responsibility for serving subpoenas.
When directed by the Department of State, officers of the Foreign Service will serve a subpoena issued by a court of the United States on a national or resident of the United States who is in a foreign country unless such action is prohibited by the law of the foreign country.
§ 92.87 Consular responsibility for serving orders to show cause.
Officers of the Foreign Service are required to serve orders to show cause issued in contempt proceedings on a person who has failed or neglected to appear in answer to a subpoena served in accordance with the provisions of § 92.86. (Section 1, 62 Stat. 949; 28 U.S.C. 1784.)
§ 92.88 Consular procedure.
With regard to the serving of subpoenas and orders to show cause referred to in §§ 92.86 and 92.87, section 1 of the act of June 25, 1948 (sec. 1, 62 Stat. 819, 28 U.S.C. 1783), provides that the subpoena shall designate the time and place for appearance before the court of the United States, and shall issue to any consular officer of the United States in the foreign country. The consular officer is required to make personal service of the subpoena and any order to show cause, rule, judgment or decree on the request of the Federal court or its marshal, and to make return thereof to such court after tendering to the witness his necessary travel and attendance expenses, which will be determined by the court and sent with the subpoena. When the subpoena or order is forwarded to the officer, it is usually accompanied by instructions directing exactly how service should be made and how the return of service should be executed. These instructions should be followed carefully.
§ 92.89 Fees for service of legal process.
No charge should be made for serving a subpoena or order to show cause issuing out of Federal court under the procedures set forth in §§ 92.86 and 92.87. The taking of the affidavit of the officer effecting the service, or the performance of any other notarial act which may be involved in making the return, should be without charge, under the caption “Exemption for Federal Agencies and Corporations” of the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter).
§ 92.90 Delivering documents pertaining to the revocation of naturalization.
Officers of the Foreign Service shall deliver, or assist in delivering, to designated persons, documents relating to proceedings in the cancellation of certificates of naturalization when such documents are forwarded by duly authorized officials of the Federal courts. The responsibility for furnishing detailed instructions on the procedure to be followed in delivering such documents rests with the court or with the United States attorney concerned, and officers should follow such instructions carefully.
§ 92.91 Service of documents at request of Congressional committees.
Officers of the Foreign Service have no authority to serve upon persons in their consular districts legal process such as subpoenas or citations in connection with Congressional investigations. All requests for such service should be referred to the Department of State.
§ 92.92 Service of legal process under provisions of State law.
It may be found that a State statute purporting to regulate the service of process in foreign countries is so drawn as to mention service by an American consular officer or a person appointed by him, without mention of or provision for alternate methods of service. State laws of this description do not operate in derogation of the laws of the foreign jurisdiction wherein it may be sought to effect service of legal process, and such State laws do not serve to impose upon American consular officers duties or obligations which they are unauthorized to accept under Federal law, or require them to perform acts contrary to Federal regulations (see § 92.85).
§ 92.93 Notarial services or authentications connected with service of process by other persons.
An officer of the Foreign Service may administer an oath to a person making an affidavit to the effect that legal process has ben served. When an affidavit stating that legal process has been served is executed before a foreign notary or other official, an officer of the Foreign Service may authenticate the official character of the person administering the oath. The fee for administering an oath to a person making an affidavit or for an authentication, as the case may be, is as prescribed under the caption “Notarial Services and Authentications” in the Tariff of Fees, Foreign Service of the United States of America (§ 22.1 of this chapter), unless the case is of such nature as to fall under the caption, “Exemption for Federal Agencies and Corporations” of the same Tariff.
§ 92.94 Replying to inquiries regarding service of process or other documents.
Officers should make prompt and courteous replies to all inquiries regarding the service of legal process or documents of like nature, and should render such assistance as they properly can to the court and to interested parties. Such assistance could include furnishing information as to the standard procedure of the locality for service of legal papers, with the name and address of the local office having a bailiff authorized to effect and make return of service; it could include furnishing a list of local attorneys capable of making necessary arrangements; or it could, where appropriate, include a suggestion that the request of the American court might be presented to the foreign judicial authorities in the form of letters rogatory (see definition, § 92.54, and procedures, § 92.66 (b)). If the person upon whom the process is intended to be served is known to be willing to accept service, or if it is clear that it would be in his interest at least to be informed of the matter, the consular officer may suggest to the interested parties in the United States the drawings up of papers for voluntary execution by such person, such as a waiver of service or a document which would be acceptable to the American court to signify the person’s entering an appearance in the action pending therein.
§ 92.95 Transportation of witnesses to the United States.
Officers of the Foreign Service may at times be called upon to assist in arranging for the transportation to the United States of persons in foreign countries whose testimony is desired by the Attorney General in a case pending in a Federal court. Requests that the travel of such persons be facilitated originate in the Department of Justice, and special instructions in each case are transmitted to the appropriate Foreign Service post by the Department of State.
PART 93 – SERVICE ON FOREIGN STATE
§ 93.1 Service through the diplomatic channel.
(a) The Director of the Office of Special Consular Services in the Bureau of Consular Affairs, Department of State (“The Managing Director for Overseas Citizen Service”), shall perform the duties of the Secretary of State under section 1608(a)(4) of title 28, United States Code.
(b) When the clerk of the court concerned sends documents under section 1608(a)(4), of title 28, United States Code, the Managing Director for Overseas Citizen Service shall promptly ascertain if the documents include the required copies of the notice of suit and of the summons and complaint (or default judgment), and any required translations. If not, he shall promptly advise the clerk of the missing items.
(c) Upon receiving the required copies of documents and any required translations, the Managing Director for Overseas Citizen Service shall promptly cause one copy of each such document and translation (“the documents”) to be delivered –
(1) To the Embassy of the United States in the foreign state concerned, and the Embassy shall promptly deliver them to the foreign ministry or other appropriate authority of the foreign state, or
(2) If the foreign state so requests or if otherwise appropriate, to the embassy of the foreign state in the District of Columbia, or
(3) If paragraphs (c)(1) and (2) of this section are unavailable, through an existing diplomatic channel, such as to the embassy of another country authorized to represent the interests of the foreign state concerned in the United States.
(d) The documents, when delivered under paragraph (c) of this section, shall be accompanied by a diplomatic note of transmittal, requesting that the documents be forwarded to the appropriate authority of the foreign state or political subdivision upon which service is being made. The note shall state that, under United States law, questions of jurisdiction and of state immunity must be addressed to the court and not to the Department of State, and that it is advisable to consult with an attorney in the United States.
(e) If the documents are delivered under paragraph (c)(1) of this section, the Embassy of the United States shall promptly transmit by diplomatic pouch, to the Managing Director for Overseas Citizen Service, a certified copy of the diplomatic note of transmittal. If the documents are delivered under paragraph (c) (2) or (3) of this section, the Managing Director for Overseas Citizen Service shall prepare a certified copy of the diplomatic note of transmittal. In each case, the certification shall state the date and place the documents were delivered. The Managing Director for Overseas Citizen Service shall then promptly send the certified copy to the clerk of the court concerned.
§ 93.2 Notice of suit (or of default judgment).
(a) A Notice of Suit prescribed in section 1608(a) of title 28, United States Code, shall be prepared in the form that appears in the Annex to this section.
(b) In preparing a Notice of Suit, a party shall in every instance supply the information specified in items 1 through 5 of the form appearing in the Annex to this section. A party shall also supply information specified in item 6, if notice of a default judgment is being served.
(c) In supplying the information specified in item 5, a party shall in simplified language summarize the nature and purpose of the proceeding (including principal allegations and claimed bases of liability), the reasons why the foreign state or political subdivision has been named as a party in the proceeding, and the nature and amount of relief sought. The purpose of item 5 is to enable foreign officials unfamiliar with American legal documents to ascertain the above information.
(d) A party may attach additional pages to the Notice of Suit to complete information under any item.
(e) A party shall attach, as part of the Notice of Suit, a copy of the Foreign State Immunities Act of 1976 (Pub. L. 94-583; 90 Stat. 2891).
1. Title of legal proceeding; full name of court; case or docket number.
2. Name of foreign state (or political subdivision) concerned:
3. Identity of the other Parties:
4. Nature of documents served (e.g., Summons and Complaint; Default Judgment):
5. Nature and purpose of the proceedings; why the foreign state (or political subdivision) has been named; relief requested:
6. Date of default judgment (if any):
7. A response to a “Summons” and “Complaint” is required to be submitted to the court, not later than 60 days after these documents are received. The response may present jurisdictional defenses (including defenses relating to state immunity).
8. The failure to submit a timely response with the court can result in a Default Judgment and a request for execution to satisfy the judgment. If a default judgment has been entered, a procedure may be available to vacate or open that judgment.
9. Questions relating to state immunities and to the jurisdiction of United States courts over foreign states are governed by the Foreign Sovereign Immunities Act of 1976, which appears in sections 1330, 1391(f), 1441(d), and 1602 through 1611, of Title 28, United States Code (Pub. L. 94-583; 90 Stat. 2891).
PART 94 – INTERNATIONAL CHILD ABDUCTION
§ 94.1 Definitions.
For purposes of this part –
(a) Convention means the Hague Convention on the Civil Aspects of International Child Abduction, Appendix B to Department of State notice, 51 FR 10498, March 26, 1986.
(b) Contracting State means any country which is a party to the Convention.
(c) Child and children mean persons under the age of sixteen.
§ 94.2 Designation of Central Authority.
The Office of Children’s Issues in the Bureau of Consular Affairs is designated as the U.S. Central Authority to discharge the duties which are imposed by the Convention and the International Child Abduction Remedies Act upon such authorities.
§ 94.3 Functions of the Central Authority.
The U.S. Central Authority shall cooperate with the Central Authorities of other countries party to the Convention and promote cooperation by appropriate U.S. state authorities to secure the prompt location and return of children wrongfully removed to or retained in any Contracting State, to ensure that rights of custody and access under the laws of one Contracting State are effectively respected in the other Contracting States, and to achieve the other objects of the Convention. In performing its functions, the U.S. Central Authority may receive from, or transmit to, any department, agency, or instrumentality of the federal government, or of any state or foreign government, information necessary to locate a child or for the purpose of otherwise implementing the Convention with respect to a child.
§ 94.4 Prohibitions.
(a) The U.S. Central Authority is prohibited from acting as an agent or attorney or in any fiduciary capacity in legal proceedings arising under the Convention. The U.S. Central Authority is not responsible for the costs of any legal representation or legal proceedings nor for any transportation expenses of the child or applicant. However, the U.S. Central Authority may not impose any fee in relation to the administrative processing of applications submitted under the Convention.
(b) The U.S. Central Authority shall not be a repository of foreign or U.S. laws.
§ 94.5 Application.
Any person, institution, or other body may apply to the U.S. Central Authority for assistance in locating a child, securing access to a child, or obtaining the return of a child that has been removed or retained in breach of custody rights. The application shall be made in the form prescribed by the U.S. Central Authority and shall contain such information as the U.S. Central Authority deems necessary for the purposes of locating the child and otherwise implementing the Convention. The application and any accompanying documents should be submitted in duplicate in English or with English translations. If intended for use in a foreign country, two additional copies should be provided in the language of the foreign country.
§ 94.6 Procedures for children abducted to the United States.
The U.S. Central Authority, or an entity acting at its direction, shall perform the following operational functions with respect to all Hague Convention applications seeking the return of children wrongfully removed to or retained in the United States or seeking access to children in the United States:
(a) Receive all applications seeking return of children wrongfully retained in the United States or seeking access to children in the United States;
(b) Confirm the child’s location or, where necessary, seek to ascertain its location;
(c) Seek to ascertain the child’s welfare through inquiry to the appropriate state social service agencies and, when necessary, consult with those agencies about the possible need for provisional arrangements to protect the child or to prevent the child’s removal from the jurisdiction of the state;
(d) Seek through appropriate authorities (such as state social service agencies or state attorneys general or prosecuting attorneys), where appropriate, to achieve a voluntary agreement for suitable visitation rights by the applicant or for return of the child;
(e) Assist applicants in securing information useful for choosing or obtaining legal representation, for example, by providing a directory of lawyer referral services, or pro bono listing published by legal professional organizations, or the name and address of the state attorney general or prosecuting attorney who has expressed a willingness to represent parents in this type of case and who is employed under state law to intervene on the applicant’s behalf;
(f) Upon request, seek from foreign Central Authorities information relating to the social background of the child;
(g) Upon request, seek from foreign Central Authorities information regarding the laws of the country of the child’s habitual residence;
(h) Upon request, seek from foreign Central Authorities a statement as to the wrongfulness of the taking of the child under the laws of the country of the child’s habitual residence;
(i) Upon request, seek a report on the status of court action when no decision has been reached by the end of six weeks;
(j) Consult with appropriate agencies (such as state social service departments, the U.S. Department of Health and Human Services, state attorneys general) about possible arrangements for temporary foster care and/or return travel for the child from the United States;
(k) Monitor all cases in which assistance has been sought and maintain records on the procedures followed in each case and its disposition;
(l) Perform such additional functions as determined by the U.S. Central Authority, deemed advisable to maintain U.S. treaty compliance with the Hague Convention on the Civil Aspects of International Child Abduction.
§ 94.7 Procedures for children abducted from the United States.
Upon receipt of an application requesting access to a child or return of a child abducted from the United States and taken to another country party to the Convention, the U.S. Central Authority shall –
(a) Review and forward the application to the Central Authority of the country where the child is believed located or provide the applicant with the necessary form, instructions, and the name and address of the appropriate Central Authority for transmittal of the application directly by the applicant;
(b) Upon request, transmit to the foreign Central Authority requests for a report on the status of any court action when no decision has been reached by the end of six weeks;
(c) Upon request, facilitate efforts to obtain from appropriate U.S. state authorities and transmit to the foreign Central Authority information regarding the laws of the child’s state of habitual residence;
(d) Upon request, facilitate efforts to obtain from appropriate U.S. state authorities and transmit to the foreign Central Authority a statement as to the wrongfulness of the taking of the child under the laws of the child’s state of habitual residence;
(e) Upon request, facilitate efforts to obtain from appropriate U.S. state authorities and transmit to the foreign Central Authority information relating to the social background of the child;
(f) Upon request, be available to facilitate possible arrangements for temporary foster care and/or travel for the child from the foreign country to the United States;
(g) Monitor all cases in which assistance has been sought; and
(h) Perform such additional functions as the Assistant Secretary of State for Consular Affairs may from time to time direct.
§ 94.8 Interagency coordinating group.
The U.S. Central Authority shall nominate federal employees and may, from time to time, nominate private citizens to serve on an interagency coordinating group to monitor the operation of the Convention and to provide advice on its implementation. This group shall meet from time to time at the request of the U.S. Central Authority.
PART 95 – IMPLEMENTATION OF TORTURE CONVENTION IN EXTRADITION CASES
§ 95.1 Definitions.
(a) Convention means the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, done at New York on December 10, 1984, entered into force for the United States on November 10, 1994. Definitions provided below in paragraphs (b) and (c) of this section reflect the language of the Convention and understandings set forth in the United States instrument of ratification to the Convention.
(b) Torture means:
(1) Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
(2) In order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to prolonged mental harm caused by or resulting from:
(i) The intentional infliction or threatened infliction of severe physical pain or suffering;
(ii) The administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(iii) The threat of imminent death; or
(iv) The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality.
(3) Noncompliance with applicable legal procedural standards does not per se constitute torture.
(4) This definition of torture applies only to acts directed against persons in the offender’s custody or physical control.
(5) The term “acquiescence” as used in this definition requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.
(6) The term “lawful sanctions” as used in this definition includes judicially imposed sanctions and other enforcement actions authorized by law, provided that such sanctions or actions were not adopted in order to defeat the object and purpose of the Convention to prohibit torture.
(7) Torture is an extreme form of cruel and inhuman treatment and does not include lesser forms of cruel, inhuman or degrading treatment or punishment.
(c) Where there are substantial grounds for believing that [a fugitive] would be in danger of being subjected to torture means if it is more likely than not that the fugitive would be tortured.
(d) Secretary means Secretary of State and includes, for purposes of this rule, the Deputy Secretary of State, by delegation.
§ 95.2 Application.
(a) Article 3 of the Convention imposes on the parties certain obligations with respect to extradition. That Article provides as follows:
(1) No State party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
(2) For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
(b) Pursuant to sections 3184 and 3186 of Title 18 of the United States Criminal Code, the Secretary is the U.S. official responsible for determining whether to surrender a fugitive to a foreign country by means of extradition. In order to implement the obligation assumed by the United States pursuant to Article 3 of the Convention, the Department considers the question of whether a person facing extradition from the U.S. “is more likely than not” to be tortured in the State requesting extradition when appropriate in making this determination.
§ 95.3 Procedures.
(a) Decisions on extradition are presented to the Secretary only after a fugitive has been found extraditable by a United States judicial officer. In each case where allegations relating to torture are made or the issue is otherwise brought to the Department’s attention, appropriate policy and legal offices review and analyze information relevant to the case in preparing a recommendation to the Secretary as to whether or not to sign the surrender warrant.
(b) Based on the resulting analysis of relevant information, the Secretary may decide to surrender the fugitive to the requesting State, to deny surrender of the fugitive, or to surrender the fugitive subject to conditions.
§ 95.4 Review and construction.
Decisions of the Secretary concerning surrender of fugitives for extradition are matters of executive discretion not subject to judicial review. Furthermore, pursuant to section 2242(d) of the Foreign Affairs Reform and Restructuring Act of 1998, P.L. 105-277, notwithstanding any other provision of law, no court shall have jurisdiction to review these regulations, and nothing in section 2242 shall be construed as providing any court jurisdiction to consider or review claims raised under the Convention or section 2242, or any other determination made with respect to the application of the policy set forth in section 2242(a), except as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U.S.C. 1252), which is not applicable to extradition proceedings.
PART 96 – INTERCOUNTRY ADOPTION ACCREDITATION OF AGENCIES AND APPROVAL OF PERSONS
Subpart A – General Provisions
§ 96.1 Purpose.
This part provides for the accreditation and approval of agencies and persons pursuant to the Intercountry Adoption Act of 2000 (42 U.S.C. 14901-14954, Pub. L. 106-279,) and the Intercountry Adoption Universal Accreditation Act of 2012 (42 U.S.C. 14925, Pub. L. 112-276). Subpart B of this part establishes the procedures for the selection and designation of accrediting entities to perform the accreditation and approval functions. Subparts C through H establish the general procedures and standards for accreditation and approval of agencies and persons (including renewal of accreditation or approval). Subparts I through M address the oversight of accredited or approved agencies and persons.
§ 96.2 Definitions.
As used in this part, the term:
Accredited agency means an agency that has been accredited by an accrediting entity, in accordance with the standards in subpart F of this part, to provide adoption services in the United States in intercountry adoption cases.
Accrediting entity means an entity that has been designated by the Secretary to accredit agencies and/or to approve persons for purposes of providing adoption services in the United States in intercountry adoption cases.
Adoption means the judicial or administrative act that establishes a permanent legal parent-child relationship between a minor and an adult who is not already the minor’s legal parent and terminates the legal parent-child relationship between the adoptive child and any former parent(s).
Adoption record means any record, information, or item related to a specific intercountry adoption of a child received or maintained by an agency, person, or public domestic authority, including, but not limited to, photographs, videos, correspondence, personal effects, medical and social information, and any other information about the child.
Adoption service means any one of the following six services:
(1) Identifying a child for adoption and arranging an adoption;
(2) Securing the necessary consent to termination of parental rights and to adoption;
(3) Performing a background study on a child or a home study on a prospective adoptive parent(s), and reporting on such a study;
(4) Making non-judicial determinations of the best interests of a child and the appropriateness of an adoptive placement for the child;
(5) Monitoring a case after a child has been placed with prospective adoptive parent(s) until final adoption; or
(6) When necessary because of a disruption before final adoption, assuming custody and providing (including facilitating the provision of) child care or any other social service pending an alternative placement.
Agency means a private, nonprofit organization licensed to provide adoption services in at least one State. (For-profit entities and individuals that provide adoption services are considered “persons” as defined in this section.)
Approved home study means a review of the home environment of the child’s prospective adoptive parent(s) that has been:
(1) Completed by an accredited agency; or
(2) Approved by an accredited agency.
Approved person means a person that has been approved, in accordance with the standards in subpart F of this part, by an accrediting entity to provide adoption services in the United States in intercountry adoption cases.
Best interests of the child shall have the meaning given to it by the law of the State with jurisdiction to decide whether a particular adoption or adoption-related action is in a child’s best interests.
Case Registry means the tracking system jointly established by the Secretary and DHS to comply with section 102(e) of the IAA (42 U.S.C. 14912).
Central Authority means the entity designated as such under Article 6(1) of the Convention by any Convention country, or, in the case of the United States, the United States Department of State. In countries that are not Convention countries, Central Authority means the relevant “competent authority” as defined in this section.
Child welfare services means services, other than those defined as “adoption services” in this section, that are designed to promote and protect the well-being of a family or child. Such services include, but are not limited to, recruiting and identifying adoptive parent(s) in cases of disruption (but not assuming custody of the child), arranging or providing temporary foster care for a child in connection with an intercountry adoption or providing educational, social, cultural, medical, psychological assessment, mental health, or other health-related services for a child or family in an intercountry adoption case.
Competent authority means a court or governmental authority of a foreign country that has jurisdiction and authority to make decisions in matters of child welfare, including adoption.
Complaint Registry means the system created by the Secretary pursuant to § 96.70 to receive, distribute, and monitor complaints relevant to the accreditation or approval status of agencies and persons.
Convention means the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption done at The Hague on May 29, 1993.
Convention adoption means the adoption of a child resident in a Convention country by a United States citizen, or an adoption of a child resident in the United States by an individual or individuals residing in a Convention country, when, in connection with the adoption, the child has moved or will move between the United States and the Convention country.
Convention country means a country that is a party to the Convention and with which the Convention is in force for the United States.
Country of origin means the country in which a child is a resident and from which a child is emigrating in connection with his or her adoption.
Debarment means the loss of accreditation or approval by an agency or person as a result of an order of the Secretary under which the agency or person is temporarily or permanently barred from accreditation or approval.
DHS means the Department of Homeland Security and encompasses the former Immigration and Naturalization Service (INS) or any successor entity designated by the Secretary of Homeland Security to assume the functions vested in the Attorney General by the IAA relating to the INS’s responsibilities.
Disruption means the interruption of a placement for adoption during the post-placement period.
Dissolution means the termination of the adoptive parent(s)’ parental rights after an adoption.
Exempted provider means a social work professional or organization that performs a home study on prospective adoptive parent(s) or a child background study (or both) in the United States in connection with an intercountry adoption (including any reports or updates), but that is not currently providing and has not previously provided any other adoption service in the case.
IAA means the Intercountry Adoption Act of 2000, Public Law 106-279 (2000) (42 U.S.C. 14901-14954), as amended from time to time.
INA means the Immigration and Nationality Act (8 U.S.C. 1101 et seq.), as amended.
Intercountry adoption means a Convention adoption or the adoption of a child described in INA section 101(b)(1)(F).
Legal custody means having legal responsibility for a child under the order of a court of law, a public domestic authority, competent authority, public foreign authority, or by operation of law.
Legal services means services, other than those defined in this section as “adoption services,” that relate to the provision of legal advice and information and to the drafting of legal instruments. Such services include, but are not limited to, drawing up contracts, powers of attorney, and other legal instruments; providing advice and counsel to adoptive parent(s) on completing DHS or Central Authority forms; and providing advice and counsel to accredited agencies, approved persons, or prospective adoptive parent(s) on how to comply with the Convention, the IAA, the UAA, and the regulations implementing the IAA or UAA.
Person means an individual or a private, for-profit entity (including a corporation, company, association, firm, partnership, society, or joint stock company) providing adoption services. It does not include public domestic authorities or public foreign authorities.
Post-adoption means after an adoption; in cases in which an adoption occurs in a foreign country and is followed by a re-adoption in the United States, it means after the adoption in the foreign country.
Post-placement means after a grant of legal custody or guardianship of the child to the prospective adoptive parent(s), or to a custodian for the purpose of escorting the child to the identified prospective adoptive parent(s), and before an adoption.
Primary provider means the accredited agency or approved person that is identified pursuant to § 96.14 as responsible for ensuring that all six adoption services are provided and for supervising and being responsible for supervised providers where used.
Public domestic authority means an authority operated by a State, local, or tribal government within the United States.
Public foreign authority means an authority operated by a national or subnational government of a foreign country.
Secretary means the Secretary of State, the Assistant Secretary of State for Consular Affairs, or any other Department of State official exercising the Secretary of State’s authority under the Convention, the IAA, the UAA, or any regulations implementing the IAA or UAA, pursuant to a delegation of authority.
State means the fifty States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, and the U.S. Virgin Islands.
Supervised provider means any agency, person, or other non-governmental entity, including any foreign entity, regardless of whether it is called a facilitator, agent, attorney, or by any other name, that is providing one or more adoption services in an intercountry adoption case under the supervision and responsibility of an accredited agency or approved person that is acting as the primary provider in the case.
UAA means the Intercountry Adoption Universal Accreditation Act of 2012, (42 U.S.C. 14925, Pub. L. 112-276 (2012)).
§ 96.3 [Reserved]
Subpart B – Selection, Designation, and Duties of Accrediting Entities
§ 96.4 Designation of accrediting entities by the Secretary.
(a) The Secretary, in the Secretary’s discretion, will designate one or more entities that meet the criteria set forth in § 96.5 to perform the accreditation and/or approval functions. Each accrediting entity’s designation will be set forth in an agreement between the Secretary and the accrediting entity. The agreement will govern the accrediting entity’s operations. The agreements will be published in the
(b) The Secretary’s designation may authorize an accrediting entity to accredit agencies, to approve persons, or to both accredit agencies and approve persons. The designation may also limit the accrediting entity’s geographic jurisdiction or impose other limits on the entity’s jurisdiction.
(c) A public entity may only be designated to accredit agencies and approve persons that are located in the public entity’s State.
§ 96.5 Requirement that accrediting entity be a nonprofit or public entity.
An accrediting entity must qualify as either:
(a) An organization described in section 501(c)(3) of the Internal Revenue Code of 1986, as amended, that has expertise in developing and administering standards for entities providing child welfare services; or
(b) A public entity (other than a Federal entity), including, but not limited to, any State or local government or governmental unit or any political subdivision, agency, or instrumentality thereof, that is responsible for licensing adoption agencies in a State and that has expertise in developing and administering standards for entities providing child welfare services.
§ 96.6 Performance criteria for designation as an accrediting entity.
An entity that seeks to be designated as an accrediting entity must demonstrate to the Secretary:
(a) That it has a governing structure, the human and financial resources, and systems of control adequate to ensure its reliability;
(b) That it is capable of performing the accreditation or approval functions or both on a timely basis and of administering any renewal cycle authorized under § 96.60;
(c) That it can monitor the performance of agencies it has accredited and persons it has approved (including their use of any supervised providers) to ensure their continued compliance with the Convention, the IAA, the UAA, and the regulations implementing the IAA or UAA;
(d) That it has the capacity to take appropriate adverse actions against agencies it has accredited and persons it has approved;
(e) That it can perform the required data collection, reporting, and other similar functions;
(f) Except in the case of a public entity, that it operates independently of any agency or person that provides adoption services, and of any membership organization that includes agencies or persons that provide adoption services;
(g) That it has the capacity to conduct its accreditation and approval functions fairly and impartially;
(h) That it can comply with any conflict-of-interest prohibitions set by the Secretary in its agreement;
(i) That it prohibits conflicts of interest with agencies or persons or with any membership organization that includes agencies or persons that provide adoption services; and
(j) That it prohibits its employees or other individuals acting as site evaluators, including, but not limited to, volunteer site evaluators, from becoming employees or supervised providers of an agency or person for at least one year after they have evaluated such agency or person for accreditation or approval.
§ 96.7 Authorities and responsibilities of an accrediting entity.
(a) An accrediting entity may be authorized by the Secretary to perform some or all of the following functions:
(1) Determining whether agencies are eligible for accreditation;
(2) Determining whether persons are eligible for approval;
(3) Overseeing accredited agencies and/or approved persons by monitoring their compliance with applicable requirements;
(4) Investigating and responding to complaints about accredited agencies and approved persons (including their use of supervised providers);
(5) Taking adverse action against an accredited agency or approved person, and/or referring an accredited agency or approved person for possible action by the Secretary;
(6) Determining whether accredited agencies and approved persons are eligible for renewal of their accreditation or approval on a cycle consistent with § 96.60;
(7) Collecting data from accredited agencies and approved persons, maintaining records, and reporting information to the Secretary, State courts, and other entities; and
(8) Assisting the Secretary in taking appropriate action to help an agency or person in transferring its intercountry adoption cases and adoption records.
(b) The Secretary may require the accrediting entity:
(1) To utilize the Complaint Registry as provided in subpart J of this part; and
(2) To fund a portion of the costs of operating the Complaint Registry with fees collected by the accrediting entity pursuant to the schedule of fees approved by the Secretary as provided in § 96.8.
(c) An accrediting entity must perform all responsibilities in accordance with the Convention, the IAA, the UAA, the regulations implementing the IAA or UAA, and its agreement with the Secretary.
§ 96.8 Fees charged by accrediting entities.
(a) An accrediting entity may charge fees for accreditation or approval services under this part only in accordance with a schedule of fees approved by the Secretary. Before approving a schedule of fees proposed by an accrediting entity, or subsequent proposed changes to an approved schedule, the Secretary will require the accrediting entity to demonstrate:
(1) That its proposed schedule of fees reflects appropriate consideration of the relative size and geographic location and volume of intercountry adopton cases of the agencies or persons it expects to serve;
(2) That the total fees the accrediting entity expects to collect under the schedule of fees will not exceed the full costs of accreditation or approval under this part (including, but not limited to, costs for completing the accreditation or approval process, complaint review and investigation, routine oversight and enforcement, and other data collection and reporting activities).
(b) The schedule of fees must:
(1) Establish separate non-refundable fees for accreditation and approval;
(2) Include in each fee for accreditation or approval the costs of all activities associated with the accreditation or approval cycle, including but not limited to, costs for completing the accreditation or approval process, complaint review and investigation, routine oversight and enforcement, and other data collection and reporting activities, except that separate fees based on actual costs incurred may be charged for the travel and maintenance of evaluators.
(c) An accrediting entity must make its approved schedule of fees available to the public, including prospective applicants for accreditation or approval, upon request. At the time of application, the accrediting entity must specify the fees to be charged to the applicant in a contract between the parties and must provide notice to the applicant that no portion of the fee will be refunded if the applicant fails to become accredited or approved.
(d) Nothing in this section shall be construed to provide a private right of action to challenge any fee charged by an accrediting entity pursuant to a schedule of fees approved by the Secretary.
§ 96.9 Agreement between the Secretary and the accrediting entity.
An accrediting entity must perform its functions pursuant to a written agreement with the Secretary that will be published in the
(a) The responsibilities and duties of the accrediting entity;
(b) The method by which the costs of delivering the accreditation or approval services may be recovered through the collection of fees from those seeking accreditation or approval, and how the entity’s schedule of fees will be approved;
(c) How the accrediting entity will address complaints about accredited agencies and approved persons (including their use of supervised providers) and complaints about the accrediting entity itself;
(d) Data collection requirements;
(e) Matters of communication and accountability between both the accrediting entity and the applicant(s) and between the accrediting entity and the Secretary; and
(f) Other matters upon which the parties have agreed.
§ 96.10 Suspension or cancellation of the designation of an accrediting entity by the Secretary.
(a) The Secretary will suspend or cancel the designation of an accrediting entity if the Secretary concludes that it is substantially out of compliance with the Convention, the IAA, the UAA, the regulations implementing the IAA or UAA, other applicable laws, or the agreement with the Secretary. Complaints regarding the performance of the accrediting entity may be submitted to the Department of State, Bureau of Consular Affairs. The Secretary will consider complaints in determining whether an accrediting entity’s designation should be suspended or canceled.
(b) The Secretary will notify an accrediting entity in writing of any deficiencies in the accrediting entity’s performance that could lead to the suspension or cancellation of its designation, and will provide the accrediting entity with an opportunity to demonstrate that suspension or cancellation is unwarranted, in accordance with procedures established in the agreement entered into pursuant to § 96.9.
(c) An accrediting entity may be considered substantially out of compliance under circumstances that include, but are not limited to:
(1) Failing to act in a timely manner when presented with evidence that an accredited agency or approved person is substantially out of compliance with the standards in subpart F of this part;
(2) Accrediting or approving significant numbers of agencies or persons whose performance results in intervention of the Secretary for the purpose of suspension, cancellation, or debarment;
(3) Failing to perform its responsibilities fairly and objectively;
(4) Violating prohibitions on conflicts of interest;
(5) Failing to meet its reporting requirements;
(6) Failing to protect information or documents that it receives in the course of performing its responsibilities; and
(7) Failing to monitor frequently and carefully the compliance of accredited agencies, and approved persons with the home study requirements of the Convention, section 203(b)(1)(A)(ii) of the IAA (42 U.S.C. 14923(b)(1)(A)(ii)), and § 96.47.
(d) An accrediting entity that is subject to a final action of suspension or cancellation may petition the United States District Court for the District of Columbia or the United States district court in the judicial district in which the accrediting entity is located to set aside the action as provided in section 204(d) of the IAA (42 U.S.C. 14924(d)).
§ 96.11 [Reserved]
Subpart C – Accreditation and Approval Requirements for the Provision of Adoption Services
§ 96.12 Authorized adoption service providers.
(a) Except as provided in section 505(b) of the IAA (relating to transitional cases), and once the UAA becomes effective, except as provided in section 2(c) of the UAA (relating to transitional cases), an agency or person may not offer, provide, or facilitate the provision of any adoption service in the United States in connection with an intercountry adoption unless it is:
(1) An accredited agency or an approved person;
(2) A supervised provider; or
(3) An exempted provider, if the exempted provider’s home study or child background study will be reviewed and approved by an accredited agency pursuant to § 96.47(c) or § 96.53(b).
(b) A public domestic authority may also offer, provide, or facilitate the provision of any such adoption service.
(c) Neither conferral nor maintenance of accreditation or approval, nor status as an exempted or supervised provider, nor status as a public domestic authority shall be construed to imply, warrant, or establish that, in any specific case, an adoption service has been provided consistently with the Convention, the IAA, the UAA, or the regulations implementing the IAA or UAA. Conferral and maintenance of accreditation or approval under this part establishes only that the accrediting entity has concluded, in accordance with the standards and procedures of this part, that the agency or person conducts adoption services in substantial compliance with the applicable standards set forth in this part; it is not a guarantee that in any specific case the accredited agency or approved person is providing adoption services consistently with the Convention, the IAA, the UAA, the regulations implementing the IAA or UAA, or any other applicable law, whether Federal, State, or foreign. Neither the Secretary nor any accrediting entity shall be responsible for any acts of an accredited agency, approved person, exempted provider, supervised provider, or other entity providing services in connection with an intercountry adoption.
§ 96.13 Circumstances in which accreditation, approval, or supervision is not required.
(a) Home studies and child background studies. Home studies and child background studies, when performed by exempted providers, may be performed without accreditation, approval, or supervision; provided, however, that an exempted provider’s home study must be approved by an accredited agency in accordance with § 96.47(c), and an exempted provider’s child background study must be approved by an accredited agency in accordance with § 96.53(b).
(b) Child welfare services. An agency or person does not need to be accredited, approved, or operate as a supervised provider if it is providing only child welfare services, and not providing any adoption services, in connection with an intercountry adoption. If the agency or person provides both a child welfare service and any adoption service in the United States in an intercountry adoption case, it must be accredited, approved or operate as a supervised provider unless the only adoption service provided is preparation of a home study and/or a child background study.
(c) Legal services. An agency or person does not need to be accredited, approved, or to operate as a supervised provider if it is providing only legal services, and not providing any adoption services, in connection with an intercountry adoption. If the agency or person provides both a legal service and any adoption service in the United States in an intercountry adoption case, it must be accredited, approved or operate as a supervised provider unless the only adoption service provided is preparation of a home study and/or a child background study. Nothing in this part shall be construed:
(1) To permit an attorney to provide both legal services and adoption services in an adoption case where doing so is prohibited by State law; or
(2) To require any attorney who is providing one or more adoption services as part of his or her employment by a public domestic authority to be accredited or approved or operate as a supervised provider.
(d) Prospective adoptive parent(s) acting on own behalf. Prospective adoptive parent(s) may act on their own behalf without being accredited, or approved unless so acting is prohibited by State law or the law of the foreign country. In the case of a child immigrating to the United States in connection with his or her adoption, such conduct must be permissible under the laws of the State in which the prospective adoptive parent(s) reside and the laws of the foreign country from which the parent(s) seek to adopt. In the case of a child emigrating from the United States in connection with his or her adoption, such conduct must be permissible under the laws of the State where the child resides and the laws of the Convention country in which the parent(s) reside.
§ 96.14 Providing adoption services using other providers.
(a) Accreditation and approval under this part require that, in each intercountry adoption case, an accredited agency or an approved person will be identified and act as the primary provider. If one accredited agency or approved person is providing all adoption services by itself, it must act as the primary provider. If just one accredited agency or approved person is involved in providing adoption services, the sole accredited agency or approved person must act as the primary provider. If adoption services in the intercountry adoption case are being provided by more than one accredited agency or approved person, the agency or person that has child placement responsibility, as evidenced by the following, must act as the primary provider throughout the case:
(1) Entering into placement contracts with prospective adoptive parent(s) to provide child referral and placement;
(2) Accepting custody from a birth parent or other legal custodian in a foreign country for the purpose of placement for adoption;
(3) Assuming responsibility for liaison with a foreign country’s Central Authority or its designees with regard to arranging an adoption; or
(4) Receiving from or sending to a foreign country information about a child that is under consideration for adoption, unless acting as a local service provider that conveys such information to parent(s) on behalf of the primary provider.
(b) Pursuant to § 96.44, in the case of accredited agencies or approved persons, the primary provider may only use the following to provide adoption services in the United States:
(1) A supervised provider, including an accredited agency or approved person;
(2) An exempted provider, if the exempted provider’s home study or child background study will be reviewed and approved by an accredited agency pursuant to § 96.47(c) or § 96.53(b); or
(3) A public domestic authority.
(c) Pursuant to § 96.44 of subpart F, in the case of accredited agencies or approved persons, the primary provider may only use the following to provide adoption services in a foreign country:
(1) A Central Authority, competent authority, or a public foreign authority;
(2) A foreign supervised provider, including a provider accredited by the foreign country; or
(3) A foreign provider (agency, person, or other non-governmental entity) who
(i) Has secured or is securing the necessary consent to termination of parental rights and to adoption, if the primary provider verifies consent pursuant to § 96.46(c); or
(ii) Has prepared or is preparing a background study on a child in a case involving immigration to the United States (incoming case) or a home study on prospective adoptive parent(s) in a case involving emigration from the United States (outgoing case), and a report on the results of such a study, if the primary provider verifies the study and report pursuant to § 96.46(c).
(d) The primary provider is not required to provide supervision or to assume responsibility for:
(1) Public domestic authorities; or
(2) Central Authorities, competent authorities, and public foreign authorities.
(e) The primary provider must adhere to the standards contained in § 96.45 (Using supervised providers in the United States) when using supervised providers in the United States and the applicable standards contained in § 96.46 (Using providers in foreign countries) when using providers outside the United States.
§ 96.15 Examples.
The following examples illustrate the rules of §§ 96.12 to 96.14:
Public domestic authorities are not required to become accredited to be able to provide adoption services in intercountry adoption cases, but must comply with the Convention, the IAA, the UAA, and other applicable law when providing services in an intercountry adoption case.
§ 96.17 Effective date of accreditation and approval requirements.
The Convention entered into force for the United States on April 1, 2008. As of that date, the regulations in subpart C of this part govern Convention adoptions between the United States and Convention countries, and require agencies or persons providing adoption services on behalf of prospective adoptive parent(s) to comply with § 96.12 and applicable Federal regulations. The Secretary maintains for the public a current listing of Convention countries. The effective date of the UAA is July 14, 2014. As of that date, consistent with the UAA, the regulations in subpart C of this part will govern adoptions of children described in INA § 101(b)(1)(F), and will require agencies or persons providing adoption services on behalf of prospective adoptive parent(s) in connection with a child described in section 101(b)(1)(F) to comply with § 96.12 and applicable Federal regulations.
Subpart D – Application Procedures for Accreditation and Approval
§ 96.18 Scope.
(a) Agencies are eligible to apply for “accreditation.” Persons are eligible to apply for “approval.” Applications for accreditation or approval will be processed in accordance with §§ 96.19 and 96.20.
(b) If an agency or person is reapplying for accreditation or approval following cancellation of its accreditation or approval by an accrediting entity or refusal by an accrediting entity to renew its accreditation or approval, it must comply with the procedures in § 96.78.
(c) If an agency or person that has been accredited or approved is seeking renewal, it must comply with the procedures in § 96.63.
§ 96.19 First-time application procedures for accreditation and approval.
(a) Agencies or persons seeking accreditation or approval for the first time may submit an application at any time, with the required fee(s), to an accrediting entity with jurisdiction to evaluate the application.
(b) The accrediting entity must establish and follow uniform application procedures and must make information about those procedures available to agencies and persons that are considering whether to apply for accreditation or approval. An accrediting entity must evaluate the applicant for accreditation or approval in a timely fashion.
§ 96.20 Choosing an accrediting entity.
(a) An agency that seeks to become accredited must apply to an accrediting entity that is designated to provide accreditation services and that has jurisdiction over its application. A person that seeks to become approved must apply to an accrediting entity that is designated to provide approval services and that has jurisdiction over its application. The agency or person may apply to only one accrediting entity at a time.
(b)(1) If the agency or person is applying for accreditation or approval pursuant to this part for the first time, it may apply to any accrediting entity with jurisdiction over its application. However, the agency or person must apply to the same accrediting entity that handled its prior application when it next applies for accreditation or approval, if the agency or person:
(i) Has been denied accreditation or approval;
(ii) Has withdrawn its application in anticipation of denial;
(iii) Has had its accreditation or approval cancelled by an accrediting entity or the Secretary;
(iv) Has been temporarily debarred by the Secretary; or
(v) Has been refused renewal of its accreditation or approval by an accrediting entity.
(2) If the prior accrediting entity is no longer providing accreditation or approval services, the agency or person may apply to any accrediting entity with jurisdiction over its application.
§§ 96.21-96.22 [Reserved]
Subpart E – Evaluation of Applicants for Accreditation and Approval
§ 96.23 Scope.
The provisions in this subpart govern the evaluation of agencies and persons for accreditation or approval.
§ 96.24 Procedures for evaluating applicants for accreditation or approval.
(a) The accrediting entity must designate at least two evaluators to evaluate an agency or person for accreditation or approval. The accrediting entity’s evaluators must have expertise in intercountry adoption, standards evaluation, or experience with the management or oversight of child welfare organizations and must also meet any additional qualifications required by the Secretary in the agreement with the accrediting entity.
(b) To evaluate the agency’s or person’s eligibility for accreditation or approval, the accrediting entity must:
(1) Review the agency’s or person’s written application and supporting documentation;
(2) Verify the information provided by the agency or person by examining underlying documentation;
(3) Consider any complaints received by the accrediting entity pursuant to subpart J of this part; and
(4) Conduct site visit(s).
(c) The site visit(s) may include, but need not be limited to, interviews with birth parents, adoptive parent(s), prospective adoptive parent(s), and adult adoptee(s) served by the agency or person, interviews with the agency’s or person’s employees, and interviews with other individuals knowledgeable about the agency’s or person’s provision of adoption services. It may also include a review of on-site documents. The accrediting entity must, to the extent practicable, advise the agency or person in advance of the type of documents it wishes to review during the site visit. The accrediting entity must require at least one of the evaluators to participate in each site visit. The accrediting entity must determine the number of evaluators that participate in a site visit in light of factors such as:
(1) The agency’s or person’s size;
(2) The number of adoption cases it handles;
(3) The number of sites the accrediting entity decides to visit; and
(4) The number of individuals working at each site.
(d) Before deciding whether to accredit an agency or approve a person, the accrediting entity may, in its discretion, advise the agency or person of any deficiencies that may hinder or prevent its accreditation or approval and defer a decision to allow the agency or person to correct the deficiencies.
§ 96.25 Access to information and documents requested by the accrediting entity.
(a) The agency or person must give the accrediting entity access to information and documents, including adoption case files and proprietary information, that it requires or requests to evaluate an agency or person for accreditation or approval and to perform its oversight, enforcement, renewal, data collection, and other functions. The agency or person must also cooperate with the accrediting entity by making employees available for interviews upon request.
(b) Accrediting entity review of adoption case files pursuant to paragraph (a) shall be limited to Convention adoption case files and cases subject to the UAA, except that, in the case of first-time applicants for accreditation or approval, the accrediting entity may review adoption case files related to other non-Convention cases for purposes of assessing the agency’s or person’s capacity to comply with record-keeping and data-management standards in subpart F of this part. The accrediting entity shall permit the agency or person to redact names and other information that identifies birth parent(s), prospective adoptive parent(s), and adoptee(s) from such non-Convention adoption case files not subject to the UAA prior to their inspection by the accrediting entity.
(c) If an agency or person fails to provide requested documents or information, or to make employees available as requested, the accrediting entity may deny accreditation or approval or, in the case of an accredited agency or approved person, take appropriate adverse action against the agency or person solely on that basis.
§ 96.26 Protection of information and documents by the accrediting entity.
(a) The accrediting entity must protect from unauthorized use and disclosure all documents and information about the agency or person it receives including, but not limited to, documents and proprietary information about the agency’s or person’s finances, management, and professional practices received in connection with the perf ormance of its accreditation or approval, oversight, enforcement, renewal, data collection, or other functions under its agreement with the Secretary and this part.
(b) The documents and information received may not be disclosed to the public and may be used only for the purpose of performing the accrediting entity’s accreditation or approval functions and related tasks under its agreement with Secretary and this part, or to provide information to the Secretary, the Complaint Registry, or an appropriate Federal, State, or local authority, including, but not limited to, a public domestic authority or local law enforcement authority unless:
(1) Otherwise authorized by the agency or person in writing;
(2) Otherwise required under Federal or State laws; or
(3) Required pursuant to subpart M of this part.
(c) Unless the names and other information that identifies the birth parent(s), prospective adoptive parent(s), and adoptee(s) are requested by the accrediting entity for an articulated reason, the agency or person may withhold from the accrediting entity such information and substitute individually assigned codes in the documents it provides. The accrediting entity must have appropriate safeguards to protect from unauthorized use and disclosure of any information in its files that identifies birth parent(s), prospective adoptive parent(s), and adoptee(s). The accrediting entity must ensure that its officers, employees, contractors, and evaluators who have access to information or documents provided by the agency or person have signed a non-disclosure agreement reflecting the requirements of § 96.26(a) and (b). The accrediting entity must maintain an accurate record of the agency’s or person’s application, the supporting documentation, and the basis for its decision.
§ 96.27 Substantive criteria for evaluating applicants for accreditation or approval.
(a) The accrediting entity may not grant an agency accreditation or a person approval, or permit an agency’s or person’s accreditation or approval to be maintained, unless the agency or person demonstrates to the satisfaction of the accrediting entity that it is in substantial compliance with the standards in subpart F of this part.
(b) When the agency or person makes its initial application for accreditation or approval under the standards contained in subpart F of this part, the accrediting entity may measure the capacity of the agency or person to achieve substantial compliance with these standards where relevant evidence of its actual performance is not yet available. Once the agency or person has been accredited or approved pursuant to this part, the accrediting entity must, for the purposes of monitoring, renewal, enforcement, and reapplication after adverse action, consider the agency’s or person’s actual performance in deciding whether the agency or person is in substantial compliance with the standards contained in subpart F of this part, unless the accrediting entity determines that it is still necessary to measure capacity because adequate evidence of actual performance is not available.
(c) The standards contained in subpart F of this part apply during all the stages of accreditation and approval, including, but not limited to, when the accrediting entity is evaluating an applicant for accreditation or approval, when it is determining whether to renew an agency’s or person’s accreditation or approval, when it is monitoring the performance of an accredited agency or approved person, and when it is taking adverse action against an accredited agency or approved person. Except as provided in § 96.25 and paragraphs (e) and (f) of this section, the accrediting entity may only use the standards contained in subpart F of this part when determining whether an agency or person may be granted or permitted to maintain accreditation or approval.
(d) The Secretary will ensure that each accrediting entity performs its accreditation and approval functions using only a method approved by the Secretary that is substantially the same as the method approved for use by each other accrediting entity. Each such method will include: an assigned value for each standard (or element of a standard); a method of rating an agency’s or person’s compliance with each applicable standard; and a method of evaluating whether an agency’s or person’s overall compliance with all applicable standards establishes that the agency or person is in substantial compliance with the standards and can be accredited or approved. The Secretary will ensure that the value assigned to each standard reflects the relative importance of that standard to compliance with the Convention, the IAA, and the UAA and is consistent with the value assigned to the standard by other accrediting entities. The accrediting entity must advise applicants of the value assigned to each standard (or elements of each standard) at the time it provides applicants with the application materials.
(e) If an agency or person has previously been denied accreditation or approval, has withdrawn its application in anticipation of denial, or is reapplying for accreditation or approval after cancellation, refusal to renew, or temporary debarment, the accrediting entity may take the reasons underlying such actions into account when evaluating the agency or person for accreditation or approval, and may deny accreditation or approval on the basis of the previous action.
(f) If an agency or person that has an ownership or control interest in the applicant, as that term is defined in section 1124 of the Social Security Act (42 U.S.C. 1320a-3), has been debarred pursuant to § 96.85, the accrediting entity may take into account the reasons underlying the debarment when evaluating the agency or person for accreditation or approval, and may deny accreditation or approval or refuse to renew accreditation or approval on the basis of the debarment.
(g) The standards contained in subpart F of this part do not eliminate the need for an agency or person to comply fully with the laws of the jurisdictions in which it operates. An agency or person must provide adoption services in intercountry adoption cases consistent with the laws of any State in which it operates and with the Convention, the IAA and the UAA. Persons that are approved to provide adoption services may only provide such services in States that do not prohibit persons from providing adoption services. Nothing in the application of subparts E and F should be construed to require a State to allow persons to provide adoption services if State law does not permit them to do so.
§ 96.28 [Reserved]
Subpart F – Standards for Intercountry Adoption Accreditation and Approval
§ 96.29 Scope.
The provisions in this subpart provide the standards for accrediting agencies and approving persons.
Licensing and Corporate Governance
§ 96.30 State licensing.
(a) The agency or person is properly licensed or otherwise authorized by State law to provide adoption services in at least one State.
(b) The agency or person follows applicable State licensing and regulatory requirements in all jurisdictions in which it provides adoption services.
(c) If it provides adoption services in a State in which it is not itself licensed or authorized to provide such services, the agency or person does so only:
(1) Through agencies or persons that are licensed or authorized by State law to provide adoption services in that State and that are exempted providers or acting as supervised providers; or
(2) Through public domestic authorities.
(d) In the case of a person, the individual or for-profit entity is not prohibited by State law from providing adoption services in any State where it is providing adoption services, and does not provide adoption services in foreign countries that prohibit individuals or for-profit entities from providing adoption services.
§ 96.31 Corporate structure.
(a) The agency qualifies for nonprofit tax treatment under section 501(c)(3) of the Internal Revenue Code of 1986, as amended, or qualifies for nonprofit status under the laws of any State.
(b) The person is an individual or is a for-profit entity organized as a corporation, company, association, firm, partnership, society, or joint stock company, or other legal entity under the laws of any State.
§ 96.32 Internal structure and oversight.
(a) The agency or person has (or, in the case of an individual, is) a chief executive officer or equivalent official who is qualified by education, adoption service experience, and management credentials to ensure effective use of resources and coordinated delivery of the services provided by the agency or person, and has authority and responsibility for management and oversight of the staff and any supervised providers in carrying out the adoption-related functions of the organization.
(b) The agency or person has a board of directors or a similar governing body that establishes and approves its mission, policies, budget, and programs; provides leadership to secure the resources needed to support its programs; includes one or more individuals with experience in adoption, including but not limited to, adoptees, birth parents, prospective adoptive parent(s), and adoptive parents; and appoints and oversees the performance of its chief executive officer or equivalent official. This standard does not apply where the person is an individual practitioner.
(c) The agency or person keeps permanent records of the meetings and deliberations of its governing body and of its major decisions affecting the delivery of adoption services.
(d) The agency or person has in place procedures and standards, pursuant to § 96.45 and § 96.46, for the selection, monitoring, and oversight of supervised providers.
(e) The agency or person discloses to the accrediting entity the following information:
(1) Any other names by which the agency or person is or has been known, under either its current or any former form of organization, and the addresses and phone numbers used when such names were used;
(2) The name, address, and phone number of each current director, manager, and employee of the agency or person, and, for any such individual who previously served as a director, manager, or employee of another provider of adoption services, the name, address, and phone number of such other provider; and
(3) The name, address, and phone number of any entity it uses or intends to use as a supervised provider.
Financial and Risk Management
§ 96.33 Budget, audit, insurance, and risk assessment requirements.
(a) The agency or person operates under a budget approved by its governing body, if applicable, for management of its funds. The budget discloses all remuneration (including perquisites) paid to the agency’s or person’s board of directors, managers, employees, and supervised providers.
(b) The agency’s or person’s finances are subject to annual internal review and oversight and are subject to independent audits every four years. The agency or person submits copies of internal financial review reports for inspection by the accrediting entity each year.
(c) The agency or person submits copies of each audit, as well as any accompanying management letter or qualified opinion letter, for inspection by the accrediting entity.
(d) The agency or person meets the financial reporting requirements of Federal and State laws and regulations.
(e) The agency’s or person’s balance sheets show that it operates on a sound financial basis and maintains on average sufficient cash reserves, assets, or other financial resources to meet its operating expenses for two months, taking into account its projected volume of cases and its size, scope, and financial commitments. The agency or person has a plan to transfer its intercountry adoption cases if it ceases to provide or is no longer permitted to provide adoption services in intercountry adoption cases. The plan includes provisions for an organized closure and reimbursement to clients of funds paid for services not yet rendered.
(f) If it accepts charitable donations, the agency or person has safeguards in place to ensure that such donations do not influence child placement decisions in any way.
(g) The agency or person assesses the risks it assumes, including by reviewing information on the availability of insurance coverage for intercountry adoption-related activities. The agency or person uses the assessment to meet the requirements in paragraph (h) of this section and as the basis for determining the type and amount of professional, general, directors’ and officers’, errors and omissions, and other liability insurance to carry.
(h) The agency or person maintains professional liability insurance in amounts reasonably related to its exposure to risk, but in no case in an amount less than $1,000,000 in the aggregate.
(i) The agency’s or person’s chief executive officer, chief financial officer, and other officers or employees with direct responsibility for financial transactions or financial management of the agency or person are bonded.
§ 96.34 Compensation.
(a) The agency or person does not compensate any individual who provides intercountry adoption services with an incentive fee or contingent fee for each child located or placed for adoption.
(b) The agency or person compensates its directors, officers, employees, and supervised providers who provide intercountry adoption services only for services actually rendered and only on a fee-for-service, hourly wage, or salary basis rather than a contingent fee basis.
(c) The agency or person does not make any payments, promise payment, or give other consideration to any individual directly or indirectly involved in provision of adoption services in a particular case, except for salaries or fees for services actually rendered and reimbursement for costs incurred. This does not prohibit an agency or person from providing in-kind or other donations not intended to influence or affect a particular adoption.
(d) The fees, wages, or salaries paid to the directors, officers, employees, and supervised providers of the agency or person are not unreasonably high in relation to the services actually rendered, taking into account the country in which the adoption services are provided and norms for compensation within the intercountry adoption community in that country, to the extent that such norms are known to the accrediting entity; the location, number, and qualifications of staff; workload requirements; budget; and size of the agency or person.
(e) Any other compensation paid to the agency’s or person’s directors or members of its governing body is not unreasonably high in relation to the services rendered, taking into account the same factors listed in paragraph (d) of this section and its for-profit or nonprofit status.
(f) The agency or person identifies all vendors to whom clients are referred for non-adoption services and discloses to the accrediting entity any corporate or financial arrangements and any family relationships with such vendors.
Ethical Practices and Responsibilities
§ 96.35 Suitability of agencies and persons to provide adoption services consistent with the Convention.
(a) The agency or person provides adoption services ethically and in accordance with the Convention’s principles of:
(1) Ensuring that intercountry adoptions take place in the best interests of children; and
(2) Preventing the abduction, exploitation, sale, or trafficking of children.
(b) In order to permit the accrediting entity to evaluate the suitability of an agency or person for accreditation or approval, the agency or person discloses to the accrediting entity the following information related to the agency or person, under its current or any former name:
(1) Any instances in which the agency or person has lost the right to provide adoption services in any State or country, including the basis for such action(s);
(2) Any instances in which the agency or person was debarred or otherwise denied the authority to provide adoption services in any State or country, including the basis and disposition of such action(s);
(3) Any licensing suspensions for cause or other negative sanctions by oversight bodies against the agency or person, including the basis and disposition of such action(s);
(4) For the prior ten-year period, any disciplinary action(s) against the agency or person by a licensing or accrediting body, including the basis and disposition of such action(s);
(5) For the prior ten-year period, any written complaint(s) related to the provision of adoption-related services, including the basis and disposition of such complaints, against the agency or person filed with any State or Federal or foreign regulatory body and of which the agency or person was notified;
(6) For the prior ten-year period, any known past or pending investigation(s) (by Federal authorities or by public domestic authorities), criminal charge(s), child abuse charge(s), or lawsuit(s) against the agency or person, related to the provision of child welfare or adoption-related services, and the basis and disposition of such action(s).
(7) Any instances where the agency or person has been found guilty of any crime under Federal, State, or foreign law or has been found to have committed any civil or administrative violation involving financial irregularities under Federal, State, or foreign law;
(8) For the prior five-year period, any instances where the agency or person has filed for bankruptcy; and
(9) Descriptions of any businesses or activities that are inconsistent with the principles of the Convention and that have been or are currently carried out by the agency or person, affiliate organizations, or by any organization in which the agency or person has an ownership or controlling interest.
(c) In order to permit the accrediting entity to evaluate the suitability of an agency or person for accreditation or approval, the agency or person (for its current or any former names) discloses to the accrediting entity the following information about its individual directors, officers, and employees:
(1) For the prior ten-year period, any conduct by any such individual related to the provision of adoption-related services that was subject to external disciplinary proceeding(s);
(2) Any convictions or current investigations of any such individual who is in a senior management position for acts involving financial irregularities;
(3) The results of a State criminal background check and a child abuse clearance for any such individual in the United States in a senior management position or who works directly with parent(s) and/or children (unless such checks have been included in the State licensing process); and
(4) A completed FBI Form FD-258 for each such individual in the United States in a senior management position or who works directly with parent(s) and/or children, which the agency or person must keep on file in case future allegations warrant submission of the form for a Federal criminal background check of any such individual.
(5) Descriptions of any businesses or activities that are inconsistent with the principles of the Convention and that are known to have been or are currently carried out by current individual directors, officers, or employees of the agency or person.
(d) In order to permit the accrediting entity to evaluate the suitability of a person who is an individual practitioner for approval, the individual:
(1) Provides the results of a State criminal background check and a child abuse clearance to the accrediting entity;
(2) Completes and retains a FBI Form FD-258 on file in case future allegations warrant submission of the form for a Federal criminal background check;
(3) If a lawyer, for every jurisdiction in which he or she has ever been admitted to the Bar, provides a certificate of good standing or an explanation of why he or she is not in good standing, accompanied by any relevant documentation and immediately reports to the accrediting entity any disciplinary action considered by a State bar association, regardless of whether the action relates to intercountry adoption; and
(4) If a social worker, for every jurisdiction in which he or she has been licensed, provides a certificate of good standing or an explanation of why he or she is not in good standing, accompanied by any relevant documentation.
(e) In order to permit the accrediting entity to monitor the suitability of an agency or person, the agency or person must disclose any changes in the information required by § 96.35 within thirty business days of learning of the change.
§ 96.36 Prohibition on child buying.
(a) The agency or person prohibits its employees and agents from giving money or other consideration, directly or indirectly, to a child’s parent(s), other individual(s), or an entity as payment for the child or as an inducement to release the child. If permitted or required by the child’s country of origin, an agency or person may remit reasonable payments for activities related to the adoption proceedings, pre-birth and birth medical costs, the care of the child, the care of the birth mother while pregnant and immediately following birth of the child, or the provision of child welfare and child protection services generally. Permitted or required contributions shall not be remitted as payment for the child or as an inducement to release the child.
(b) The agency or person has written policies and procedures in place reflecting the prohibitions in paragraph (a) of this section and reinforces them in its employee training programs.
Professional Qualifications and Training for Employees
(a) The agency or person only uses employees with appropriate qualifications and credentials to perform, in connection with an intercountry adoption, adoption-related social service functions that require the application of clinical skills and judgment (home studies, child background studies, counseling, parent preparation, post-placement, and other similar services).
(b) The agency’s or person’s employees meet any State licensing or regulatory requirements for the services they are providing.
(c) The agency’s or person’s executive director, the supervisor overseeing a case, or the social service employee providing adoption-related social services that require the application of clinical skills and judgment (home studies, child background studies, counseling, parent preparation, post-placement, and other similar services) has experience in the professional delivery of intercountry adoption services.
(d) Supervisors. The agency’s or person’s social work supervisors have prior experience in family and children’s services, adoption, or intercountry adoption and either:
(1) A master’s degree from an accredited program of social work;
(2) A master’s degree (or doctorate) in a related human service field, including, but not limited to, psychology, psychiatry, psychiatric nursing, counseling, rehabilitation counseling, or pastoral counseling; or
(3) In the case of a social work supervisor who is or was an incumbent at the time the Convention enters into force for the United States, the supervisor has significant skills and experience in intercountry adoption and has regular access for consultation purposes to an individual with the qualifications listed in paragraph (d)(1) or paragraph (d)(2) of this section.
(e) Non-supervisory employees. The agency’s or person’s non-supervisory employees providing adoption-related social services that require the application of clinical skills and judgment other than home studies or child background studies have either:
(1) A master’s degree from an accredited program of social work or in another human service field; or
(2) A bachelor’s degree from an accredited program of social work; or a combination of a bachelor’s degree in any field and prior experience in family and children’s services, adoption, or intercountry adoption; and
(3) Are supervised by an employee of the agency or person who meets the requirements for supervisors in paragraph (d) of this section.
(f) Home studies. The agency’s or person’s employees who conduct home studies:
(1) Are authorized or licensed to complete a home study under the laws of the States in which they practice;
(2) Meet the requirements for home study preparers in 8 CFR 204.301; and
(3) Are supervised by an employee of the agency or person who meets the requirements in paragraph (d) of this section.
(g) Child background studies. The agency’s or person’s employees who prepare child background studies:
(1) Are authorized or licensed to complete a child background study under the laws of the States in which they practice; and
(2) Are supervised by an employee of the agency or person who meets the requirements in paragraph (d) of this section.
(a) The agency or person provides newly hired employees who have adoption-related responsibilities involving the application of clinical skills and judgment (home studies, child background studies, counseling services, parent preparation, post-placement and other similar services) with a comprehensive orientation to intercountry adoption that includes training on:
(1) The requirements of the Convention, the IAA, the UAA, the regulations implementing the IAA or UAA, and other applicable Federal regulations;
(2) The INA regulations applicable to the immigration of children described in INA 101(b)(1)(F) and 101(b)(1)(G);
(3) The adoption laws of any foreign country where the agency or person provides adoption services;
(4) Relevant State laws;
(5) Ethical considerations in intercountry adoption and prohibitions on child-buying;
(6) The agency’s or person’s goals, ethical and professional guidelines, organizational lines of accountability, policies, and procedures; and
(7) The cultural diversity of the population(s) served by the agency or person.
(b) In addition to the orientation training required under paragraph (a) of this section, the agency or person provides initial training to newly hired or current employees whose responsibilities include providing adoption-related social services that involve the application of clinical skills and judgment (home studies, child background studies, counseling services, parent preparation, post-placement and other similar services) that addresses:
(1) The factors in the countries of origin that lead to children needing adoptive families;
(2) Feelings of separation, grief, and loss experienced by the child with respect to the family of origin;
(3) Attachment and post-traumatic stress disorders;
(4) Psychological issues facing children who have experienced abuse or neglect and/or whose parents’ rights have been terminated because of abuse or neglect;
(5) The impact of institutionalization on child development;
(6) Outcomes for children placed for adoption internationally and the benefits of permanent family placements over other forms of government care;
(7) The most frequent medical and psychological problems experienced by children from the countries of origin served by the agency or person;
(8) The process of developing emotional ties to an adoptive family;
(9) Acculturation and assimilation issues, including those arising from factors such as race, ethnicity, religion, and culture and the impact of having been adopted internationally; and
(10) Child, adolescent, and adult development as affected by adoption.
(c) The agency or person ensures that employees who provide adoption-related social services that involve the application of clinical skills and judgment (home studies, child background studies, counseling services, parent preparation, post-placement and other similar services) also receive, in addition to the orientation and initial training described in paragraphs (a) and (b) of this section, no less than thirty hours of training every two years, or more if required by State law, on current and emerging adoption practice issues through participation in seminars, conferences, documented distance learning courses, and other similar programs. Continuing education hours required under State law may count toward the thirty hours of training as long as the training is related to current and emerging adoption practice issues.
(d) The agency or person exempts newly hired and current employees from elements of the orientation and initial training required in paragraphs (a) and (b) of this section only where the employee has demonstrated experience with intercountry adoption and knowledge of the Convention, the IAA, and the UAA.
Information Disclosure, Fee Practices, and Quality Control Policies and Practices
§ 96.39 Information disclosure and quality control practices.
(a) The agency or person fully discloses in writing to the general public upon request and to prospective client(s) upon initial contact:
(1) Its adoption service policies and practices, including general eligibility criteria and fees;
(2) The supervised providers with whom the prospective client(s) can expect to work in the United States and in the child’s country of origin and the usual costs associated with their services; and
(3) A sample written adoption services contract substantially like the one that the prospective client(s) will be expected to sign should they proceed.
(b) The agency or person discloses to client(s) and prospective client(s) that the following information is available upon request and makes such information available when requested:
(1) The number of its adoption placements per year for the prior three calendar years, and the number and percentage of those placements that remain intact, are disrupted, or have been dissolved as of the time the information is provided;
(2) The number of parents who apply to adopt on a yearly basis, based on data for the prior three calendar years; and
(3) The number of children eligible for adoption and awaiting an adoptive placement referral via the agency or person.
(c) The agency or person does not give preferential treatment to its board members, contributors, volunteers, employees, agents, consultants, or independent contractors with respect to the placement of children for adoption and has a written policy to this effect.
(d) The agency or person requires a client to sign a waiver of liability as part of the adoption service contract only where that waiver complies with applicable State law. Any waiver required is limited and specific, based on risks that have been discussed and explained to the client in the adoption services contract.
(e) The agency or person cooperates with reviews, inspections, and audits by the accrediting entity or the Secretary.
(f) The agency or person uses the internet in the placement of individual children eligible for adoption only where:
(1) Such use is not prohibited by applicable State or Federal law or by the laws of the child’s country of origin;
(2) Such use is subject to controls to avoid misuse and links to any sites that reflect practices that involve the sale, abduction, exploitation, or trafficking of children;
(3) Such use, if it includes photographs, is designed to identify children either who are currently waiting for adoption or who have already been adopted or placed for adoption (and who are clearly so identified); and
(4) Such use does not serve as a substitute for the direct provision of adoption services, including services to the child, the prospective adoptive parent(s), and/or the birth parent(s).
§ 96.40 Fee policies and procedures.
(a) The agency or person provides to all applicants, prior to application, a written schedule of expected total fees and estimated expenses and an explanation of the conditions under which fees or expenses may be charged, waived, reduced, or refunded and of when and how the fees and expenses must be paid.
(b) Before providing any adoption service to prospective adoptive parent(s), the agency or person itemizes and discloses in writing the following information for each separate category of fees and estimated expenses that the prospective adoptive parent(s) will be charged in connection with an intercountry adoption:
(1) Home study. The expected total fees and estimated expenses for home study preparation and approval, whether the home study is to be prepared directly by the agency or person itself, or prepared by a supervised provider, exempted provider, or approved person and approved as required under § 96.47;
(2) Adoption expenses in the United States. The expected total fees and estimated expenses for all adoption services other than the home study that will be provided in the United States. This category includes, but is not limited to, personnel costs, administrative overhead, operational costs, training and education, communications and publications costs, and any other costs related to providing adoption services in the United States;
(3) Foreign country program expenses. The expected total fees and estimated expenses for all adoption services that will be provided in the child’s country of origin. This category includes, but is not limited to, costs for personnel, administrative overhead, training, education, legal services, and communications, and any other costs related to providing adoption services in the child’s Convention country;
(4) Care of the child. The expected total fees and estimated expenses charged to prospective adoptive parent(s) for the care of the child in the country of origin prior to adoption, including, but not limited to, costs for food, clothing, shelter and medical care; foster care services; orphanage care; and any other services provided directly to the child;
(5) Translation and document expenses. The expected total fees and estimated expenses for obtaining any necessary documents and for any translation of documents related to the adoption, along with information on whether the prospective adoptive parent(s) will be expected to pay such costs directly or to third parties, either in the United States or in the child’s country of origin, or through the agency or person. This category includes, but is not limited to, costs for obtaining, translating, or copying records or documents required to complete the adoption, costs for the child’s court documents, passport, adoption certificate and other documents related to the adoption, and costs for notarizations and certifications;
(6) Contributions. Any fixed contribution amount or percentage that the prospective adoptive parent(s) will be expected or required to make to child protection or child welfare service programs in the child’s country of origin country or in the United States, along with an explanation of the intended use of the contribution and the manner in which the transaction will be recorded and accounted for; and
(7) Post-placement and post-adoption reports. The expected total fees and estimated expenses for any post-placement or post-adoption reports that the agency or person or parent(s) must prepare in light of any requirements of the expected country of origin.
(c) If the following fees and estimated expenses were not disclosed as part of the categories identified in paragraph (b) of this section, the agency or person itemizes and discloses in writing any:
(1) Third party fees. The expected total fees and estimated expenses for services that the prospective adoptive parent(s) will be responsible to pay directly to a third party. Such third party fees include, but are not limited to, fees to competent authorities for services rendered or Central Authority processing fees; and
(2) Travel and accommodation expenses. The expected total fees and estimated expenses for any travel, transportation, and accommodation services arranged by the agency or person for the prospective adoptive parent(s).
(d) The agency or person also specifies in its adoption services contract when and how funds advanced to cover fees or expenses will be refunded if adoption services are not provided.
(e) When the agency or person uses part of its fees to provide special services, such as cultural programs for adoptee(s), scholarships or other services, it discloses this policy to the prospective adoptive parent(s) in advance of providing any adoption services and gives the prospective adoptive parent(s) a general description of the programs supported by such funds.
(f) The agency or person has mechanisms in place for transferring funds to foreign countries when the financial institutions of the foreign country so permit and for obtaining written receipts for such transfers, so that direct cash transactions by the prospective adoptive parent(s) to pay for adoption services provided in the Convention country are minimized or unnecessary.
(g) The agency or person does not customarily charge additional fees and expenses beyond those disclosed in the adoption services contract and has a written policy to this effect. In the event that unforeseen additional fees and expenses are incurred in the foreign country, the agency or person charges such additional fees and expenses only under the following conditions:
(1) It discloses the fees and expenses in writing to the prospective adoptive parent(s);
(2) It obtains the specific consent of the prospective adoptive parent(s) prior to expending any funds in excess of $1000 for which the agency or person will hold the prospective adoptive parent(s) responsible or gives the prospective adoptive parent(s) the opportunity to waive the notice and consent requirement in advance. If the prospective adoptive parent(s) has the opportunity to waive the notice and consent requirement in advance, this policy is reflected in the written policies and procedures of the agency or person; and
(3) It provides written receipts to the prospective adoptive parent(s) for fees and expenses paid directly by the agency or person in the foreign country and retains copies of such receipts.
(h) The agency or person returns any funds to which the prospective adoptive parent(s) may be entitled within sixty days of the completion of the delivery of services.
Responding to Complaints and Records and Reports Management
§ 96.41 Procedures for responding to complaints and improving service delivery.
(a) The agency or person has written complaint policies and procedures that incorporate the standards in paragraphs (b) through (h) of this section and provides a copy of such policies and procedures, including contact information for the Complaint Registry, to client(s) at the time the adoption services contract is signed.
(b) The agency or person permits any birth parent, prospective adoptive parent or adoptive parent, or adoptee to lodge directly with the agency or person signed and dated complaints about any of the services or activities of the agency or person (including its use of supervised providers) that he or she believes raise an issue of compliance with the Convention, the IAA, the UAA, or the regulations implementing the IAA or UAA, and advises such individuals of the additional procedures available to them if they are dissatisfied with the agency’s or person’s response to their complaint.
(c) The agency or person responds in writing to complaints received pursuant to paragraph (b) of this section within thirty days of receipt, and provides expedited review of such complaints that are time-sensitive or that involve allegations of fraud.
(d) The agency or person maintains a written record of each complaint received pursuant to paragraph (b) of this section and the steps taken to investigate and respond to it and makes this record available to the accrediting entity or the Secretary upon request.
(e) The agency or person does not take any action to discourage a client or prospective client from, or retaliate against a client or prospective client for: making a complaint; expressing a grievance; providing information in writing or interviews to an accrediting entity on the agency’s or person’s performance; or questioning the conduct of or expressing an opinion about the performance of an agency or person.
(f) The agency or person provides to the accrediting entity and the Secretary, on a semi-annual basis, a summary of all complaints received pursuant to paragraph (b) of this section during the preceding six months (including the number of complaints received and how each complaint was resolved) and an assessment of any discernible patterns in complaints received against the agency or person pursuant to paragraph (b) of this section, along with information about what systemic changes, if any, were made or are planned by the agency or person in response to such patterns.
(g) The agency or person provides any information about complaints received pursuant to paragraph (b) of this section as may be requested by the accrediting entity or the Secretary.
(h) The agency or person has a quality improvement program appropriate to its size and circumstances through which it makes systematic efforts to improve its adoption services as needed. The agency or person uses quality improvement methods such as reviewing complaint data, using client satisfaction surveys, or comparing the agency’s or person’s practices and performance against the data contained in the Secretary’s annual reports to Congress on intercountry adoptions.
§ 96.42 Retention, preservation, and disclosure of adoption records.
(a) The agency or person retains or archives adoption records in a safe, secure, and retrievable manner for the period of time required by applicable State law.
(b) The agency or person makes readily available to the adoptee and the adoptive parent(s) upon request all non-identifying information in its custody about the adoptee’s health history or background.
(c) The agency or person ensures that personal data gathered or transmitted in connection with an adoption is used only for the purposes for which the information was gathered and safeguards sensitive individual information.
(d) The agency or person has a plan that is consistent with the provisions of this section, the plan required under § 96.33, and applicable State law for transferring custody of adoption records that are subject to retention or archival requirements to an appropriate custodian, and ensuring the accessibility of those adoption records, in the event that the agency or person ceases to provide or is no longer permitted to provide adoption services in intercountry adoption cases.
(e) The agency or person notifies the accrediting entity and the Secretary in writing within thirty days of the time it ceases to provide or is no longer permitted to provide adoption services and provides information about the transfer of its adoption records.
§ 96.43 Case tracking, data management, and reporting.
(a) When acting as the primary provider, the agency or person maintains all the data required in this section in a format approved by the accrediting entity and provides it to the accrediting entity on an annual basis.
(b) When acting as the primary provider, the agency or person routinely generates and maintains reports as follows:
(1) For cases involving children immigrating to the United States, information and reports on the total number of Convention and non-Convention adoptions undertaken by the agency or person each year and, for each case:
(i) The foreign country from which the child emigrated;
(ii) The State to which the child immigrated;
(iii) The State or foreign country in which the adoption was finalized;
(iv) The age of the child; and
(v) The date of the child’s placement for adoption.
(2) For cases involving children emigrating from the United States, information and reports on the total number of Convention and non-Convention adoptions undertaken by the agency or person each year and, for each case:
(i) The State from which the child emigrated;
(ii) The foreign country to which the child immigrated;
(iii) The State or foreign country in which the adoption was finalized;
(iv) The age of the child; and
(v) The date of the child’s placement for adoption.
(3) For each disrupted placement involving an intercountry adoption, information and reports about the disruption, including information on:
(i) The foreign country from which the child emigrated;
(ii) The State to which the child immigrated;
(iii) The age of the child;
(iv) The date of the child’s placement for adoption;
(v) The reason(s) for and resolution(s) of the disruption of the placement for adoption, including information on the child’s re-placement for adoption and final legal adoption;
(vi) The names of the agencies or persons that handled the placement for adoption; and
(vii) The plans for the child.
(4) Wherever possible, for each dissolution of an intercountry adoption, information and reports on the dissolution, including information on:
(i) The foreign country from which the child emigrated;
(ii) The State to which the child immigrated;
(iii) The age of the child;
(iv) The date of the child’s placement for adoption;
(v) The reason(s) for and resolution(s) of the dissolution of the adoption, to the extent known by the agency or person;
(vi) The names of the agencies or persons that handled the placement for adoption; and
(vii) The plans for the child.
(5) Information on the shortest, longest, and average length of time it takes to complete an intercountry adoption, set forth by the child’s country of origin, calculated from the time the child is matched with the prospective adoptive parent(s) until the time the adoption is finalized by a court, excluding any period for appeal;
(6) Information on the range of adoption fees, including the lowest, highest, average, and the median of such fees, set forth by the child’s country of origin, charged by the agency or person for intercountry adoptions involving children immigrating to the United States in connection with their adoption.
(c) If the agency or person provides adoption services in cases not subject to the Convention that involve a child emigrating from the United States for the purpose of adoption or after an adoption has been finalized, it provides such information as required by the Secretary directly to the Secretary and demonstrates to the accrediting entity that it has provided this information.
(d) The agency or person provides any of the information described in paragraphs (a) through (c) of this section to the accrediting entity or the Secretary within thirty days of request.
Service Planning and Delivery
§ 96.44 Acting as primary provider.
(a) When required by § 96.14(a), the agency or person acts as primary provider and adheres to the provisions in § 96.14(b) through (e). When acting as the primary provider, the agency or person develops and implements a service plan for providing all adoption services and provides all such services, either directly or through arrangements with supervised providers, exempted providers, public domestic authorities, competent authorities, Central Authorities, public foreign authorities, or, to the extent permitted by § 96.14(c), other foreign providers (agencies, persons, or other non-governmental entities).
(b) The agency or person has an organizational structure, financial and personnel resources, and policies and procedures in place that demonstrate that the agency or person is capable of acting as a primary provider in any intercountry adoption case and, when acting as the primary provider, provides appropriate supervision to supervised providers and verifies the work of other foreign providers in accordance with §§ 96.45 and 96.46.
§ 96.45 Using supervised providers in the United States.
(a) The agency or person, when acting as the primary provider and using supervised providers in the United States to provide adoption services, ensures that each such supervised provider:
(1) Is in compliance with applicable State licensing and regulatory requirements in all jurisdictions in which it provides adoption services;
(2) Does not engage in practices inconsistent with the Convention’s principles of furthering the best interests of the child and preventing the sale, abduction, exploitation, or trafficking of children; and
(3) Before entering into an agreement with the primary provider for the provision of adoption services, discloses to the primary provider the suitability information listed in § 96.35.
(b) The agency or person, when acting as the primary provider and using supervised providers in the United States to provide adoption services, ensures that each such supervised provider operates under a written agreement with the primary provider that:
(1) Identifies clearly the adoption service(s) to be provided by the supervised provider and requires that the service(s) be provided in accordance with the applicable service standard(s) for accreditation and approval (for example: home study (§ 96.47); parent training (§ 96.48); child background studies and consent (§ 96.53));
(2) Requires the supervised provider to comply with the following standards regardless of the type of adoption services it is providing: § 96.36 (prohibition on child-buying), § 96.34 (compensation), § 96.38 (employee training), § 96.39(d) (waivers of liability), and § 96.41(b) through (e) (complaints);
(3) Identifies specifically the lines of authority between the primary provider and the supervised provider, the employee of the primary provider who will be responsible for supervision, and the employee of the supervised provider who will be responsible for ensuring compliance with the written agreement;
(4) States clearly the compensation arrangement for the services to be provided and the fees and expenses to be charged by the supervised provider;
(5) Specifies whether the supervised provider’s fees and expenses will be billed to and paid by the client(s) directly or billed to the client through the primary provider;
(6) Provides that, if billing the client(s) directly for its service, the supervised provider will give the client(s) an itemized bill of all fees and expenses to be paid, with a written explanation of how and when such fees and expenses will be refunded if the service is not completed, and will return any funds collected to which the client(s) may be entitled within sixty days of the completion of the delivery of services;
(7) Requires the supervised provider to meet the same personnel qualifications as accredited agencies and approved persons, as provided for in § 96.37, except that, for purposes of §§ 96.37(e)(3), (f)(3), and (g)(2), the work of the employee must be supervised by an employee of an accredited agency or approved person;
(8) Requires the supervised provider to limit the use of and safeguard personal data gathered or transmitted in connection with an adoption, as provided for in § 96.42;
(9) Requires the supervised provider to respond within a reasonable period of time to any request for information from the primary provider, the Secretary, or the accrediting entity that issued the primary provider’s accreditation or approval;
(10) Requires the supervised provider to provide the primary provider on a timely basis any data that is necessary to comply with the primary provider’s reporting requirements;
(11) Requires the supervised provider to disclose promptly to the primary provider any changes in the suitability information required by § 96.35;
(12) Permits suspension or termination of the agreement on reasonable notice if the primary provider has grounds to believe that the supervised provider is not in compliance with the agreement or the requirements of this section.
§ 96.46 Using providers in foreign countries.
(a) The agency or person, when acting as the primary provider and using foreign supervised providers to provide adoption services in foreign countries, ensures that each such foreign supervised provider:
(1) Is in compliance with the laws of the foreign country in which it operates;
(2) Does not engage in practices inconsistent with the Convention’s principles of furthering the best interests of the child and preventing the sale, abduction, exploitation, or trafficking of children;
(3) Before entering into an agreement with the primary provider for the provision of adoption services, discloses to the primary provider the suitability information listed in § 96.35, taking into account the authorities in the foreign country that are analogous to the authorities identified in that section;
(4) Does not have a pattern of licensing suspensions or other sanctions and has not lost the right to provide adoption services in any jurisdiction for reasons germane to the Convention or the Convention’s principles of ensuring that intercountry adoptions take place in the best interests of children and preventing the abduction, exploitation, sale, or trafficking of children; and
(5) Is accredited in the foreign country in which it operates, if such accreditation is required by the laws of that Convention country to perform the adoption services it is providing.
(b) The agency or person, when acting as the primary provider and using foreign supervised providers to provide adoption services in foreign countries, ensures that each such foreign supervised provider operates under a written agreement with the primary provider that:
(1) Identifies clearly the adoption service(s) to be provided by the foreign supervised provider;
(2) Requires the foreign supervised provider, if responsible for obtaining medical or social information on the child, to comply with the standards in § 96.49(d) through (j);
(3) Requires the foreign supervised provider to adhere to the standard in § 96.36(a) prohibiting child buying; and has written policies and procedures in place reflecting the prohibitions in § 96.36(a) and reinforces them in training programs for its employees and agents;
(4) Requires the foreign supervised provider to compensate its directors, officers, and employees who provide intercountry adoption services on a fee-for-service, hourly wage, or salary basis, rather than based on whether a child is placed for adoption, located for an adoptive placement, or on a similar contingent fee basis;
(5) Identifies specifically the lines of authority between the primary provider and the foreign supervised provider, the employee of the primary provider who will be responsible for supervision, and the employee of the supervised provider who will be responsible for ensuring compliance with the written agreement;
(6) States clearly the compensation arrangement for the services to be provided and the fees and expenses to be charged by the foreign supervised provider;
(7) Specifies whether the foreign supervised provider’s fees and expenses will be billed to and paid by the client(s) directly or billed to the client through the primary provider;
(8) Provides that, if billing the client(s) directly for its service, the foreign supervised provider will give the client(s) an itemized bill of all fees and expenses to be paid, with a written explanation of how and when such fees and expenses will be refunded if the service is not completed, and will return any funds collected to which the client(s) may be entitled within sixty days of the completion of the delivery of services;
(9) Requires the foreign supervised provider to respond within a reasonable period of time to any request for information from the primary provider, the Secretary, or the accrediting entity that issued the primary provider’s accreditation or approval;
(10) Requires the foreign supervised provider to provide the primary provider on a timely basis any data that is necessary to comply with the primary provider’s reporting requirements;
(11) Requires the foreign supervised provider to disclose promptly to the primary provider any changes in the suitability information required by § 96.35; and
(12) Permits suspension or termination of the agreement on reasonable notice if the primary provider has grounds to believe that the foreign supervised provider is not in compliance with the agreement or the requirements of this section.
(c) The agency or person, when acting as the primary provider and, in accordance with § 96.14, using foreign providers that are not under its supervision, verifies, through review of the relevant documentation and other appropriate steps, that:
(1) Any necessary consent to termination of parental rights or to adoption obtained by the foreign provider was obtained in accordance with applicable foreign law and Article 4 of the Convention;
(2) Any background study and report on a child in a case involving immigration to the United States (an incoming case) performed by the foreign provider was performed in accordance with applicable foreign law and Article 16 of the Convention.
(3) Any home study and report on prospective adoptive parent(s) in a case involving emigration from the United States (an outgoing case) performed by the foreign provider was performed in accordance with applicable foreign law and Article 15 of the Convention.
Standards for Cases in Which a Child Is Immigrating to the United States (Incoming Cases)
§ 96.47 Preparation of home studies in incoming cases.
(a) The agency or person ensures that a home study on the prospective adoptive parent(s) (which for purposes of this section includes the initial report and any supplemental statement submitted to DHS) is completed that includes the following:
(1) Information about the prospective adoptive parent(s)’ identity, eligibility and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, and the characteristics of the children for whom the prospective adoptive parent(s) would be qualified to care (specifying in particular whether they are willing and able to care for a child with special needs);
(2) A determination whether the prospective adoptive parent(s) are eligible and suited to adopt;
(3) A statement describing the counseling and training provided to the prospective adoptive parent(s);
(4) The results of a criminal background check on the prospective adoptive parent(s) and any other individual for whom a check is required by 8 CFR 204.311;
(5) A full and complete statement of all facts relevant to the eligibility and suitability of the prospective adoptive parent(s) to adopt a child under any specific requirements identified to the Secretary by the Central Authority of the child’s country of origin; and
(6) A statement in each copy of the home study that it is a true and accurate copy of the home study that was provided to the prospective adoptive parent(s) or DHS.
(b) The agency or person ensures that the home study is performed in accordance with 8 CFR 204.311, and any applicable State law.
(c) Where the home study is not performed in the first instance by an accredited agency, the agency or person ensures that the home study is reviewed and approved in writing by an accredited agency. The written approval must include a determination that the home study:
(1) Includes all of the information required by paragraph (a) of this section and is performed in accordance with 8 CFR 204.311, and applicable State law; and
(2) Was performed by an individual who meets the requirements in § 96.37(f), or, if the individual is an exempted provider, ensures that the individual meets the requirements for home study providers established by 8 CFR 204.301.
(d) The agency or person takes all appropriate measures to ensure the timely transmission of the same home study that was provided to the prospective adoptive parent(s) or to DHS to the Central Authority of the child’s country of origin (or to an alternative authority designated by that Central Authority).
§ 96.48 Preparation and training of prospective adoptive parent(s) in incoming cases.
(a) The agency or person provides prospective adoptive parent(s) with at least ten hours (independent of the home study) of preparation and training, as described in paragraphs (b) and (c) of this section, designed to promote a successful intercountry adoption. The agency or person provides such training before the prospective adoptive parent(s) travel to adopt the child or the child is placed with the prospective adoptive parent(s) for adoption.
(b) The training provided by the agency or person addresses the following topics:
(1) The intercountry adoption process, the general characteristics and needs of children awaiting adoption, and the in-country conditions that affect children in the foreign country from which the prospective adoptive parent(s) plan to adopt;
(2) The effects on children of malnutrition, relevant environmental toxins, maternal substance abuse, and of any other known genetic, health, emotional, and developmental risk factors associated with children from the expected country of origin;
(3) Information about the impact on a child of leaving familiar ties and surroundings, as appropriate to the expected age of the child;
(4) Data on institutionalized children and the impact of institutionalization on children, including the effect on children of the length of time spent in an institution and of the type of care provided in the expected country of origin;
(5) Information on attachment disorders and other emotional problems that institutionalized or traumatized children and children with a history of multiple caregivers may experience, before and after their adoption;
(6) Information on the laws and adoption processes of the expected country of origin, including foreseeable delays and impediments to finalization of an adoption;
(7) Information on the long-term implications for a family that has become multicultural through intercountry adoption; and
(8) An explanation of any reporting requirements associated with intercountry adoptions, including any post-placement or post-adoption reports required by the expected country of origin.
(c) The agency or person also provides the prospective adoptive parent(s) with training that allows them to be as fully prepared as possible for the adoption of a particular child. This includes counseling on:
(1) The child’s history and cultural, racial, religious, ethnic, and linguistic background;
(2) The known health risks in the specific region or country where the child resides; and
(3) Any other medical, social, background, birth history, educational data, developmental history, or any other data known about the particular child.
(d) The agency or person provides such training through appropriate methods, including:
(1) Collaboration among agencies or persons to share resources to meet the training needs of prospective adoptive parents;
(2) Group seminars offered by the agency or person or other agencies or training entities;
(3) Individual counseling sessions;
(4) Video, computer-assisted, or distance learning methods using standardized curricula; or
(5) In cases where training cannot otherwise be provided, an extended home study process, with a system for evaluating the thoroughness with which the topics have been covered.
(e) The agency or person provides additional in-person, individualized counseling and preparation, as needed, to meet the needs of the prospective adoptive parent(s) in light of the particular child to be adopted and his or her special needs, and any other training or counseling needed in light of the child background study or the home study.
(f) The agency or person provides the prospective adoptive parent(s) with information about print, internet, and other resources available for continuing to acquire information about common behavioral, medical, and other issues; connecting with parent support groups, adoption clinics and experts; and seeking appropriate help when needed.
(g) The agency or person exempts prospective adoptive parent(s) from all or part of the training and preparation that would normally be required for a specific adoption only when the agency or person determines that the prospective adoptive parent(s) have received adequate prior training or have prior experience as parent(s) of children adopted from abroad.
(h) The agency or person records the nature and extent of the training and preparation provided to the prospective adoptive parent(s) in the adoption record.
(a) The agency or person provides a copy of the child’s medical records (including, to the fullest extent practicable, a correct and complete English-language translation of such records) to the prospective adoptive parent(s) as early as possible, but no later than two weeks before either the adoption or placement for adoption, or the date on which the prospective adoptive parent(s) travel to the foreign country to complete all procedures in such country relating to the adoption or placement for adoption, whichever is earlier.
(b) Where any medical record provided pursuant to paragraph (a) of this section is a summary or compilation of other medical records, the agency or person includes those underlying medical records in the medical records provided pursuant to paragraph (a) if they are available.
(c) The agency or person provides the prospective adoptive parent(s) with any untranslated medical reports or videotapes or other reports and provides an opportunity for the client(s) to arrange for their own translation of the records, including a translation into a language other than English, if needed.
(d) The agency or person itself uses reasonable efforts, or requires its supervised provider in the child’s country of origin who is responsible for obtaining medical information about the child on behalf of the agency or person to use reasonable efforts, to obtain available information, including in particular:
(1) The date that the foreign country or other child welfare authority assumed custody of the child and the child’s condition at that time;
(2) History of any significant illnesses, hospitalizations, special needs, and changes in the child’s condition since the foreign country or other child welfare authority assumed custody of the child;
(3) Growth data, including prenatal and birth history, and developmental status over time and current developmental data at the time of the child’s referral for adoption; and
(4) Specific information on the known health risks in the specific region or country where the child resides.
(e) If the agency or person provides medical information, other than the information provided by public foreign authorities, to the prospective adoptive parent(s) from an examination by a physician or from an observation of the child by someone who is not a physician, the agency or person uses reasonable efforts to include the following:
(1) The name and credentials of the physician who performed the examination or the individual who observed the child;
(2) The date of the examination or observation; how the report’s information was retained and verified; and if anyone directly responsible for the child’s care has reviewed the report;
(3) If the medical information includes references, descriptions, or observations made by any individual other than the physician who performed the examination or the individual who performed the observation, the identity of that individual, the individual’s training, and information on what data and perceptions the individual used to draw his or her conclusions;
(4) A review of hospitalizations, significant illnesses, and other significant medical events, and the reasons for them;
(5) Information about the full range of any tests performed on the child, including tests addressing known risk factors in the child’s country of origin; and
(6) Current health information.
(f) The agency or person itself uses reasonable efforts, or requires its supervised provider in the child’s country of origin who is responsible for obtaining social information about the child on behalf of the agency or person to use reasonable efforts, to obtain available information, including in particular:
(1) Information about the child’s birth family and prenatal history and cultural, racial, religious, ethnic, and linguistic background;
(2) Information about all of the child’s past and current placements prior to adoption, including, but not limited to any social work or court reports on the child and any information on who assumed custody and provided care for the child; and
(3) Information about any birth siblings whose existence is known to the agency or person, or its supervised provider, including information about such siblings’ whereabouts.
(g) Where any of the information listed in paragraphs (d) and (f) of this section cannot be obtained, the agency or person documents in the adoption record the efforts made to obtain the information and why it was not obtainable. The agency or person continues to use reasonable efforts to secure those medical or social records that could not be obtained up until the adoption is finalized.
(h) Where available, the agency or person provides information for contacting the examining physician or the individual who made the observations to any physician engaged by the prospective adoptive parent(s), upon request.
(i) The agency or person ensures that videotapes and photographs of the child are identified by the date on which the videotape or photograph was recorded or taken and that they were made in compliance with the laws in the country where recorded or taken.
(j) The agency or person does not withhold from or misrepresent to the prospective adoptive parent(s) any available medical, social, or other pertinent information concerning the child.
(k) The agency or person does not withdraw a referral until the prospective adoptive parent(s) have had two weeks (unless extenuating circumstances involving the child’s best interests require a more expedited decision) to consider the needs of the child and their ability to meet those needs, and to obtain physician review of medical information and other descriptive information, including videotapes of the child if available.
§ 96.50 Placement and post-placement monitoring until final adoption in incoming cases.
(a) The agency or person takes all appropriate measures to ensure that the transfer of the child takes place in secure and appropriate circumstances, with properly trained and qualified escorts, if used, and, if possible, in the company of the prospective adoptive parent(s).
(b) In the post-placement phase, the agency or person monitors and supervises the child’s placement to ensure that the placement remains in the best interests of the child, and ensures that at least the number of home visits required by State law or by the child’s country of origin are performed, whichever is greater.
(c) When a placement for adoption is in crisis in the post-placement phase, the agency or person makes an effort to provide or arrange for counseling by an individual with appropriate skills to assist the family in dealing with the problems that have arisen.
(d) If counseling does not succeed in resolving the crisis and the placement is disrupted, the agency or person assuming custody of the child assumes responsibility for making another placement of the child.
(e) The agency or person acts promptly and in accord with any applicable legal requirements to remove the child when the placement may no longer be in the child’s best interests, to provide temporary care, to find an eventual adoptive placement for the child, and, in consultation with the Secretary, to inform the Central Authority of the child’s country of origin about any new prospective adoptive parent(s).
(1) In all cases where removal of a child from a placement is considered, the agency or person considers the child’s views when appropriate in light of the child’s age and maturity and, when required by State law, obtains the consent of the child prior to removal.
(2) The agency or person does not return from the United States a child placed for adoption in the United States unless the Central Authority of the country of origin and the Secretary have approved the return in writing.
(f) The agency or person includes in the adoption services contract with the prospective adoptive parent(s) a plan describing the agency’s or person’s responsibilities if a placement for adoption is disrupted. This plan addresses:
(1) Who will have legal and financial responsibility for transfer of custody in an emergency or in the case of impending disruption and for the care of the child;
(2) If the disruption takes place after the child has arrived in the United States, under what circumstances the child will, as a last resort, be returned to the child’s country of origin, if that is determined to be in the child’s best interests;
(3) How the child’s wishes, age, length of time in the United States, and other pertinent factors will be taken into account; and
(4) How the Central Authority of the child’s country of origin and the Secretary will be notified.
(g) The agency or person provides post-placement reports until final adoption of a child to the foreign country when required by the foreign country. Where such reports are required, the agency or person:
(1) Informs the prospective adoptive parent(s) in the adoption services contract of the requirement prior to the referral of the child for adoption;
(2) Informs the prospective adoptive parent(s) that they will be required to provide all necessary information for the report(s); and
(3) Discloses who will prepare the reports and the fees that will be charged.
(h) The agency or person takes steps to:
(1) Ensure that an order declaring the adoption as final is sought by the prospective adoptive parent(s), and in Convention adoptions is entered in compliance with section 301(c) of the IAA (42 U.S.C. 14931(c)); and
(2) Notify the Secretary of the finalization of the adoption within thirty days of the entry of the order.
§ 96.51 Post-adoption services in incoming cases.
(a) The agency or person takes all appropriate measures to ensure that the transfer of the child takes place in secure and appropriate circumstances, with properly trained and qualified escorts, if used, and, if possible, in the company of the adoptive parent(s).
(b) The agency or person informs the prospective adoptive parent(s) in the adoption services contract whether the agency or person will or will not provide any post-adoption services. The agency or person also informs the prospective adoptive parent(s) in the adoption services contract whether it will provide services if an adoption is dissolved, and, if it indicates it will, it provides a plan describing the agency’s or person’s responsibilities.
(c) When post-adoption reports are required by the child’s country of origin, the agency or person includes a requirement for such reports in the adoption services contract and makes good-faith efforts to encourage adoptive parent(s) to provide such reports.
(d) The agency or person does not return from the United States an adopted child whose adoption has been dissolved unless the Central Authority of the country of origin and the Secretary have approved the return in writing.
§ 96.52 Performance of Convention communication and coordination functions in incoming cases.
(a) The agency or person keeps the Central Authority of the foreign country and the Secretary informed as necessary about the adoption process and the measures taken to complete it, as well as about the progress of the placement if a probationary period is required.
(b) The agency or person takes all appropriate measures, consistent with the procedures of the U.S. Central Authority and of the foreign country, to:
(1) Transmit on a timely basis the home study to the Central Authority or other competent authority of the child’s country of origin;
(2) Obtain the child background study, proof that the necessary consents to the child’s adoption have been obtained, and the necessary determination that the prospective placement is in the child’s best interests, from the Central Authority or other competent authority in the child’s country of origin;
(3) Provide confirmation that the prospective adoptive parent(s) agree to the adoption to the Central Authority or other competent authority in the child’s country of origin; and
(4) Transmit the determination that the child is or will be authorized to enter and reside permanently in the United States to the Central Authority or other competent authority in the child’s country of origin.
(c) The agency or person takes all necessary and appropriate measures, consistent with the procedures of the foreign country, to obtain permission for the child to leave his or her country of origin and to enter and reside permanently in the United States.
(d) Where the transfer of the child does not take place, the agency or person returns the home study on the prospective adoptive parent(s) and/or the child background study to the authorities that forwarded them.
(e) The agency or person takes all necessary and appropriate measures to perform any tasks in an intercountry adoption case that the Secretary identifies are required to comply with the Convention, the IAA, the UAA, or any regulations implementing the IAA or UAA.
Standards for Convention Cases in Which a Child Is Emigrating From the United States (Outgoing Cases)
§ 96.53 Background studies on the child and consents in outgoing Convention cases.
(a) The agency or person takes all appropriate measures to ensure that a child background study is performed that includes information about the child’s identity, adoptability, background, social environment, family history, medical history (including that of the child’s family), and any special needs of the child. The child background study must include the following:
(1) Information that demonstrates that consents were obtained in accordance with paragraph (c) of this section;
(2) Information that demonstrates consideration of the child’s wishes and opinions in accordance with paragraph (d) of this section and;
(3) Information that confirms that the child background study was prepared either by an exempted provider or by an individual who meets the requirements set forth in § 96.37(g).
(b) Where the child background study is not prepared in the first instance by an accredited agency, the agency or person ensures that the child background study is reviewed and approved in writing by an accredited agency. The written approval must include a determination that the background study includes all the information required by paragraph (a) of this section.
(c) The agency or person takes all appropriate measures to ensure that consents have been obtained as follows:
(1) The persons, institutions, and authorities whose consent is necessary for adoption have been counseled as necessary and duly informed of the effects of their consent, in particular, whether or not an adoption will result in the termination of the legal relationship between the child and his or her family of origin;
(2) All such persons, institutions, and authorities have given their consents;
(3) The consents have been expressed or evidenced in writing in the required legal form, have been given freely, were not induced by payments or compensation of any kind, and have not been withdrawn;
(4) The consent of the mother, where required, was executed after the birth of the child;
(5) The child, as appropriate in light of his or her age and maturity, has been counseled and duly informed of the effects of the adoption and of his or her consent to the adoption; and
(6) The child’s consent, where required, has been given freely, in the required legal form, and expressed or evidenced in writing and not induced by payment or compensation of any kind.
(d) If the child is twelve years of age or older, or as otherwise provided by State law, the agency or person gives due consideration to the child’s wishes or opinions before determining that an intercountry placement is in the child’s best interests.
(e) The agency or person prior to the child’s adoption takes all appropriate measures to transmit to the Central Authority or other competent authority or accredited bodies of the Convention country the child background study, proof that the necessary consents have been obtained, and the reasons for its determination that the placement is in the child’s best interests. In doing so, the agency or person, as required by Article 16(2) of the Convention, does not reveal the identity of the mother or the father if these identities may not be disclosed under State law.
§ 96.54 Placement standards in outgoing Convention cases.
(a) Except in the case of adoption by relatives or in the case in which the birth parent(s) have identified specific prospective adoptive parent(s) or in other special circumstances accepted by the State court with jurisdiction over the case, the agency or person makes reasonable efforts to find a timely adoptive placement for the child in the United States by:
(1) Disseminating information on the child and his or her availability for adoption through print, media, and internet resources designed to communicate with potential prospective adoptive parent(s) in the United States;
(2) Listing information about the child on a national or State adoption exchange or registry for at least sixty calendar days after the birth of the child;
(3) Responding to inquiries about adoption of the child; and
(4) Providing a copy of the child background study to potential U.S. prospective adoptive parent(s).
(b) The agency or person demonstrates to the satisfaction of the State court with jurisdiction over the adoption that sufficient reasonable efforts (including no efforts, when in the best interests of the child) to find a timely and qualified adoptive placement for the child in the United States were made.
(c) In placing the child for adoption, the agency or person:
(1) To the extent consistent with State law, gives significant weight to the placement preferences expressed by the birth parent(s) in all voluntary placements;
(2) To the extent consistent with State law, makes diligent efforts to place siblings together for adoption and, where placement together is not possible, to arrange for contact between separated siblings, unless it is in the best interests of one of the siblings that such efforts or contact not take place; and
(3) Complies with all applicable requirements of the Indian Child Welfare Act.
(d) The agency or person complies with any State law requirements pertaining to the provision and payment of independent legal counsel for birth parents. If State law requires full disclosure to the birth parent(s) that the child is to be adopted by parent(s) who reside outside the United States, the agency or person provides such disclosure.
(e) The agency or person takes all appropriate measures to give due consideration to the child’s upbringing and to his or her ethnic, religious, and cultural background.
(f) When particular prospective adoptive parent(s) in a Convention country have been identified, the agency or person takes all appropriate measures to determine whether the envisaged placement is in the best interests of the child, on the basis of the child background study and the home study on the prospective adoptive parent(s).
(g) The agency or person thoroughly prepares the child for the transition to the Convention country, using age-appropriate services that address the child’s likely feelings of separation, grief, and loss and difficulties in making any cultural, religious, racial, ethnic, or linguistic adjustment.
(h) The agency or person takes all appropriate measures to ensure that the transfer of the child takes place in secure and appropriate circumstances, with properly trained and qualified escorts, if used, and, if possible, in the company of the adoptive parent(s) or the prospective adoptive parent(s);
(i) Before the placement for adoption proceeds, the agency or person identifies the entity in the receiving country that will provide post-placement supervision and reports, if required by State law, and ensures that the child’s adoption record contains the information necessary for contacting that entity.
(j) The agency or person ensures that the child’s adoption record includes the order granting the adoption or legal custody for the purpose of adoption in the Convention country.
(k) The agency or person consults with the Secretary before arranging for the return to the United States of any child who has emigrated to a Convention country in connection with the child’s adoption.
§ 96.55 Performance of Convention communication and coordination functions in outgoing Convention cases.
(a) The agency or person keeps the Central Authority of the Convention country and the Secretary informed as necessary about the adoption process and the measures taken to complete it, as well as about the progress of the placement if a probationary period is required.
(b) The agency or person ensures that:
(1) Copies of all documents from the State court proceedings, including the order granting the adoption or legal custody, are provided to the Secretary;
(2) Any additional information on the adoption is transmitted to the Secretary promptly upon request; and
(3) It otherwise facilitates, as requested, the Secretary’s ability to provide the certification that the child has been adopted or that custody has been granted for the purpose of adoption, in accordance with the Convention and the IAA.
(c) Where the transfer of the child does not take place, the agency or person returns the home study on the prospective adoptive parent(s) and/or the child background study to the authorities that forwarded them.
(d) The agency or person provides to the State court with jurisdiction over the adoption:
(1) Proof that consents have been given as required in § 96.53(c);
(2) An English copy or certified English translation of the home study on the prospective adoptive parent(s) in the Convention country, and the determination by the agency or person that the placement with the prospective adoptive parent(s) is in the child’s best interests;
(3) Evidence that the prospective adoptive parent(s) in the Convention country agree to the adoption;
(4) Evidence that the child will be authorized to enter and reside permanently in the Convention country or on the same basis as that of the prospective adoptive parent(s); and
(5) Evidence that the Central Authority of the Convention country has agreed to the adoption, if such consent is necessary under its laws for the adoption to become final.
(e) The agency or person makes the showing required by § 96.54(b) to the State court with jurisdiction over the adoption.
(f) The agency or person takes all necessary and appropriate measures to perform any tasks in a Convention adoption case that the Secretary identifies are required to comply with the Convention, the IAA, or any regulations implementing the IAA.
§ 96.56 [Reserved]
Subpart G – Decisions on Applications for Accreditation or Approval
§ 96.57 Scope.
The provisions in this subpart establish the procedures for when the accrediting entity issues decisions on applications for accreditation or approval.
§ 96.58 Notification of accreditation and approval decisions.
(a) The accrediting entity must routinely inform applicants in writing of its accreditation and approval decisions – whether an application has been granted or denied – as those decisions are finalized. The accrediting entity must routinely provide this information to the Secretary in writing.
(b) The accrediting entity may, in its discretion, communicate with agencies and persons that have applied for accreditation or approval about the status of their pending applications to afford them an opportunity to correct deficiencies that may hinder or prevent accreditation or approval.
§ 96.59 Review of decisions to deny accreditation or approval.
(a) There is no administrative or judicial review of an accrediting entity’s decision to deny an application for accreditation or approval. As provided in § 96.79, a decision to deny for these purposes includes:
(1) A denial of the agency’s or person’s initial application for accreditation or approval;
(2) A denial of an application made after cancellation or refusal to renew by the accrediting entity; and
(3) A denial of an application made after cancellation or debarment by the Secretary.
(b) The agency or person may petition the accrediting entity for reconsideration of a denial. The accrediting entity must establish internal review procedures that provide an opportunity for an agency or person to petition for reconsideration of the denial.
§ 96.60 Length of accreditation or approval period.
(a) The accrediting entity will accredit or approve an agency or person for a period of four years, except as provided in paragraph (b) of this section. The accreditation or approval period will commence on the date that the agency or person is granted accreditation or approval.
(b) In order to stagger the renewal requests from agencies and persons applying for accreditation or approval and to prevent the renewal requests from coming due at the same time, the accrediting entity may extend the period of accreditation it has previously granted for no more than one year and such that the total period of accreditation does not exceed five years, as long as the agency or person remains in substantial compliance with the applicable standards in subpart F of this part. The only agencies and persons that may qualify for an extension are: Those that have no pending Complaint Registry investigations or adverse actions (see § 96.70); and those that have not undergone a change in corporate or internal structure (such as a merger or change in chief executive or financial officer) during their current accreditation or approval period. For agencies and persons that meet these two criteria, the Secretary, in his or her discretion, may consider additional factors in deciding upon an extension including, but not limited to, the agency’s or person’s volume of intercountry adoption cases in the year preceding the application for renewal or extension, the agency’s or person’s state licensure record, and the number of extensions available.
§ 96.61 [Reserved]
Subpart H – Renewal of Accreditation or Approval
§ 96.62 Scope.
The provisions in this subpart establish the procedures for renewal of an agency’s accreditation or a person’s approval.
§ 96.63 Renewal of accreditation or approval.
(a) The accrediting entity must advise accredited agencies and approved persons that it monitors of the date by which they should seek renewal of their accreditation or approval so that the renewal process can reasonably be completed prior to the expiration of the agency’s or person’s current accreditation or approval. If the accredited agency or approved person does not wish to renew its accreditation or approval, it must immediately notify the accrediting entity and take all necessary steps to complete its intercountry adoption cases and to transfer its pending intercountry adoption cases and adoption records to other accredited agencies, approved persons, or a State archive, as appropriate, under the oversight of the accrediting entity, before its accreditation or approval expires.
(b) The accredited agency or approved person may seek renewal from a different accrediting entity than the one that handled its prior application. If it changes accrediting entities, the accredited agency or approved person must so notify the accrediting entity that handled its prior application by the date on which the agency or person must (pursuant to paragraph (a) of this section) seek renewal of its status. The accredited agency or approved person must follow the new accrediting entity’s instructions when submitting a request for renewal and preparing documents and other information for the new accrediting entity to review in connection with the renewal request.
(c) The accrediting entity must process the request for renewal in a timely fashion. Before deciding whether to renew the accreditation or approval of an agency or person, the accrediting entity may, in its discretion, advise the agency or person of any deficiencies that may hinder or prevent its renewal and defer a decision to allow the agency or person to correct the deficiencies. The accrediting entity must notify the accredited agency, approved person, and the Secretary in writing when it renews or refuses to renew an agency’s or person’s accreditation or approval.
(d) Sections 96.24, 96.25, and 96.26, which relate to evaluation procedures and to requests for and use of information, and § 96.27, which relates to the substantive criteria for evaluating applicants for accreditation or approval, other than § 96.27(e), will govern determinations about whether to renew accreditation or approval. In lieu of § 96.27(e), if the agency or person has been suspended by an accrediting entity or the Secretary during its most current accreditation or approval cycle, the accrediting entity may take the reasons underlying the suspension into account when determining whether to renew accreditation or approval and may refuse to renew accreditation or approval based on the prior suspension.
§ 96.64 [Reserved]
Subpart I – Routine Oversight by Accrediting Entities
§ 96.65 Scope.
The provisions in this subpart establish the procedures for routine oversight of accredited agencies and approved persons.
§ 96.66 Oversight of accredited agencies and approved persons by the accrediting entity.
(a) The accrediting entity must monitor agencies it has accredited and persons it has approved at least annually to ensure that they are in substantial compliance with the standards in subpart F of this part, as determined using a method approved by the Secretary in accordance with § 96.27(d). The accrediting entity must investigate complaints about accredited agencies and approved persons, as provided in subpart J of this part.
(b) An accrediting entity may, on its own initiative, conduct site visits to inspect an agency’s or person’s premises or programs, with or without advance notice, for purposes of random verification of its continued compliance or to investigate a complaint. The accrediting entity may consider any information about the agency or person that becomes available to it about the compliance of the agency or person. The provisions of §§ 96.25 and 96.26 govern requests for and use of information.
(c) The accrediting entity must require accredited agencies or approved persons to attest annually that they have remained in substantial compliance and to provide supporting documentation to indicate such ongoing compliance with the standards in subpart F of this part.
§ 96.67 [Reserved]
Subpart J – Oversight Through Review of Complaints
§ 96.68 Scope.
The provisions in this subpart establish the procedures that the accrediting entity will use for processing complaints against accredited agencies and approved persons (including complaints concerning their use of supervised providers) that raise an issue of compliance with the Convention, the IAA, the UAA, or the regulations implementing the IAA or UAA, as determined by the accrediting entity or the Secretary, and that are therefore relevant to the oversight functions of the accrediting entity or the Secretary.
§ 96.69 Filing of complaints against accredited agencies and approved persons.
(a) Complaints described in § 96.68 will be subject to review by the accrediting entity pursuant to §§ 96.71 and 96.72, when submitted as provided in this section and § 96.70.
(b) Complaints against accredited agencies and approved persons by parties to specific intercountry adoption cases and relating to that case must first be submitted by the complainant in writing to the primary provider and to the agency or person providing adoption services, if a U.S. provider different from the primary provider. If the complaint cannot be resolved through the complaint processes of the primary provider or the agency or person providing the services (if different), or if the complaint was resolved by an agreement to take action but the primary provider or the agency or person providing the service (if different) failed to take such action within thirty days of agreeing to do so, the complaint may then be filed with the Complaint Registry in accordance with § 96.70.
(c) An individual who is not party to a specific intercountry adoption case but who has information about an accredited agency or approved person may provide that information by filing it in the form of a complaint with the Complaint Registry in accordance with § 96.70.
(d) A Federal, State, or local government official or a foreign Central Authority may file a complaint with the Complaint Registry in accordance with § 96.70, or may raise the matter in writing directly with the accrediting entity, who will record the complaint in the Complaint Registry, or with the Secretary, who will record the complaint in the Complaint Registry, if appropriate, and refer it to the accrediting entity for review pursuant to § 96.71 or take such other action as the Secretary deems appropriate.
§ 96.70 Operation of the Complaint Registry.
(a) The Secretary will establish a Complaint Registry to support the accrediting entities in fulfilling their oversight responsibilities, including the responsibilities of recording, screening, referring, and otherwise taking action on complaints received, and to support the Secretary in the Secretary’s oversight responsibilities as the Secretary deems appropriate. The Secretary may provide for the Complaint Registry to be funded in whole or in part from fees collected by the Secretary pursuant to section 403(b) of the IAA (42 U.S.C. 14943(b)) or by the accrediting entities.
(b) The Complaint Registry will:
(1) Receive and maintain records of complaints about accredited agencies, approved persons and agencies temporarily accredited for one or two years after the Convention entered into force (including complaints concerning their use of supervised providers) and make such complaints available to the appropriate accrediting entity and the Secretary;
(2) Receive and maintain information regarding action taken to resolve each complaint by the accrediting entity or the Secretary;
(3) Track compliance with any deadlines applicable to the resolution of complaints;
(4) Generate reports designed to show possible patterns of complaints; and
(5) Perform such other functions as the Secretary may determine.
(c) Forms and information necessary to submit complaints to the Complaint Registry electronically or by such other means as the Secretary may determine will be accessible through the Department’s website to persons who wish to file complaints. Such forms will be designed to ensure that each complaint complies with the requirements of § 96.69.
(d) Accrediting entities will have access to, and the capacity to enter data into, the Complaint Registry as the Secretary deems appropriate.
(e) Nothing in this part shall be construed to limit the Secretary’s authority to take such action as the Secretary deems appropriate with respect to complaints.
§ 96.71 Review by the accrediting entity of complaints against accredited agencies and approved persons.
(a) The accrediting entity must establish written procedures, including deadlines, for recording, investigating, and acting upon complaints it receives pursuant to §§ 96.69 and 96.70(b)(1). The procedures must be consistent with this section and be approved by the Secretary. The accrediting entity must make written information about its complaint procedures available upon request.
(b) If the accrediting entity determines that a complaint implicates the Convention, the IAA, the UAA, or the regulations implementing the IAA or UAA:
(1) The accrediting entity must verify that the complainant has already attempted to resolve the complaint as described in § 96.69(b) and, if not, may refer the complaint to the agency or person, or to the primary provider, for attempted resolution through its internal complaint procedures;
(2) The accrediting entity may conduct whatever investigative activity (including site visits) it considers necessary to determine whether any relevant accredited agency or approved person may maintain accreditation or approval as provided in § 96.27. The provisions of §§ 96.25 and 96.26 govern requests for and use of information. The accrediting entity must give priority to complaints submitted pursuant to § 96.69(d);
(3) If the accrediting entity determines that the agency or person may not maintain accreditation or approval, it must take adverse action pursuant to subpart K of this part.
(c) When the accrediting entity has completed its complaint review process, it must provide written notification of the outcome of its investigation, and any actions taken, to the complainant, or to any other entity that referred the information.
(d) The accrediting entity will enter information about the outcomes of its investigations and its actions on complaints into the Complaint Registry as provided in its agreement with the Secretary.
(e) The accrediting entity may not take any action to discourage an individual from, or retaliate against an individual for, making a complaint, expressing a grievance, questioning the conduct of, or expressing an opinion about the performance of an accredited agency, an approved person, or the accrediting entity.
(a) An accrediting entity must report promptly to the Secretary any substantiated complaint that:
(1) Reveals that an accredited agency or approved person has engaged in a pattern of serious, willful, grossly negligent, or repeated failures to comply with the standards in subpart F of this part; or
(2) Indicates that continued accreditation or approval would not be in the best interests of the children and families concerned.
(b) An accrediting entity must, after consultation with the Secretary, refer, as appropriate, to a State licensing authority, the Attorney General, or other law enforcement authorities any substantiated complaints that involve conduct that is:
(1) Subject to the civil or criminal penalties imposed by section 404 of the IAA (42 U.S.C. 14944);
(2) In violation of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.); or
(3) Otherwise in violation of Federal, State, or local law.
(c) When an accrediting entity makes a report pursuant to paragraphs (a) or (b) of this section, it must indicate whether it is recommending that the Secretary take action to debar the agency or person, either temporarily or permanently.
§ 96.73 [Reserved]
Subpart K – Adverse Action by the Accrediting Entity
§ 96.74 Scope.
The provisions in this subpart establish the procedures governing adverse action by an accrediting entity against accredited agencies and approved persons.
§ 96.75 Adverse action against accredited agencies or approved persons not in substantial compliance.
The accrediting entity must take adverse action when it determines that an accredited agency or approved person may not maintain accreditation or approval as provided in § 96.27. The accrediting entity is authorized to take any of the following actions against an accredited agency or approved person whose compliance the entity oversees. Each of these actions by an accrediting entity is considered an adverse action for purposes of the IAA, the UAA, and the regulations in this part:
(a) Suspending accreditation or approval;
(b) Canceling accreditation or approval;
(c) Refusing to renew accreditation or approval;
(d) Requiring an accredited agency or approved person to take a specific corrective action to bring itself into compliance; and
(e) Imposing other sanctions including, but not limited to, requiring an accredited agency or approved person to cease providing adoption services in a particular case or in a specific foreign country.
§ 96.76 Procedures governing adverse action by the accrediting entity.
(a) The accrediting entity must decide which adverse action to take based on the seriousness and type of violation and on the extent to which the accredited agency or approved person has corrected or failed to correct deficiencies of which it has been previously informed. The accrediting entity must notify an accredited agency or approved person in writing of its decision to take an adverse action against the agency or person. The accrediting entity’s written notice must identify the deficiencies prompting imposition of the adverse action.
(b) Before taking adverse action, the accrediting entity may, in its discretion, advise an accredited agency or approved person in writing of any deficiencies in its performance that may warrant an adverse action and provide it with an opportunity to demonstrate that an adverse action would be unwarranted before the adverse action is imposed. If the accrediting entity takes the adverse action without such prior notice, it must provide a similar opportunity to demonstrate that the adverse action was unwarranted after the adverse action is imposed, and may withdraw the adverse action based on the information provided.
(c) The provisions in §§ 96.25 and 96.26 govern requests for and use of information.
§ 96.77 Responsibilities of the accredited agency, approved person, and accrediting entity following adverse action by the accrediting entity.
(a) If the accrediting entity takes an adverse action against an agency or person, the action will take effect immediately unless the accrediting entity agrees to a later effective date.
(b) If the accrediting entity suspends or cancels the accreditation or approval of an agency or person, the agency or person must immediately, or by any later effective date set by the accrediting entity, cease to provide adoption services in all intercountry adoption cases. In the case of suspension, it must consult with the accrediting entity about whether to transfer its intercountry adoption cases and adoption records. In the case of cancellation, it must execute the plans required by §§ 96.33(e) and 96.42(d) under the oversight of the accrediting entity, and transfer its intercountry adoption cases and adoption records to other accredited agencies, approved persons, or a State archive, as appropriate. When the agency or person is unable to transfer such intercountry adoption cases or adoption records in accordance with the plans or as otherwise agreed by the accrediting entity, the accrediting entity will so advise the Secretary who, with the assistance of the accrediting entity, will coordinate efforts to identify other accredited agencies or approved persons to assume responsibility for the cases, and to transfer the records to other accredited agencies or approved persons, or to public domestic authorities, as appropriate.
(c) If the accrediting entity refuses to renew the accreditation or approval of an agency or person, the agency or person must cease to provide adoption services in all intercountry adoption cases upon expiration of its existing accreditation or approval. It must take all necessary steps to complete its intercountry adoption cases before its accreditation or approval expires. It must also execute the plans required by §§ 96.33(e) and 96.42(d) under the oversight of the accrediting entity, and transfer its pending intercountry adoption cases and adoption records to other accredited agencies, approved persons, or a State archive, as appropriate. When the agency or person is unable to transfer such intercountry adoption cases or adoption records in accordance with the plans or as otherwise agreed by the accrediting entity, the accrediting entity will so advise the Secretary who, with the assistance of the accrediting entity, will coordinate efforts to identify other accredited agencies or approved persons to assume responsibility for the cases and to transfer the records to other accredited agencies or approved persons, or to public domestic authorities, as appropriate.
(d) The accrediting entity must notify the Secretary, in accordance with procedures established in its agreement with the Secretary, when it takes an adverse action that changes the accreditation or approval status of an agency or person. The accrediting entity must also notify the relevant State licensing authority as provided in the agreement.
§ 96.78 Accrediting entity procedures to terminate adverse action.
(a) The accrediting entity must maintain internal petition procedures, approved by the Secretary, to give accredited agencies and approved persons an opportunity to terminate adverse actions on the grounds that the deficiencies necessitating the adverse action have been corrected. The accrediting entity must inform the agency or person of these procedures when it informs them of the adverse action pursuant to § 96.76(a). An accrediting entity is not required to maintain procedures to terminate adverse actions on any other grounds, or to maintain procedures to review its adverse actions, and must obtain the consent of the Secretary if it wishes to make such procedures available.
(b) An accrediting entity may terminate an adverse action it has taken only if the agency or person demonstrates to the satisfaction of the accrediting entity that the deficiencies that led to the adverse action have been corrected. The accrediting entity must notify an agency or person in writing of its decision on the petition to terminate the adverse action.
(c) If the accrediting entity described in paragraph (b) of this section is no longer providing accreditation or approval services, the agency or person may petition any accrediting entity with jurisdiction over its application.
(d) If the accrediting entity cancels or refuses to renew an agency’s or person’s accreditation or approval, and does not terminate the adverse action pursuant to paragraph (b) of this section, the agency or person may reapply for accreditation or approval. Before doing so, the agency or person must request and obtain permission to make a new application from the accrediting entity that cancelled or refused to renew its accreditation or approval or, if such entity is no longer designated as an accrediting entity, from any alternate accrediting entity designated by the Secretary to give such permission. The accrediting entity may grant such permission only if the agency or person demonstrates to the satisfaction of the accrediting entity that the specific deficiencies that led to the cancellation or refusal to renew have been corrected.
(e) If the accrediting entity grants the agency or person permission to reapply, the agency or person may file an application with that accrediting entity in accordance with subpart D of this part.
(f) Nothing in this section shall be construed to prevent an accrediting entity from withdrawing an adverse action if it concludes that the action was based on a mistake of fact or was otherwise in error. Upon taking such action, the accrediting entity will take appropriate steps to notify the Secretary and the Secretary will take appropriate steps to notify the Permanent Bureau of the Hague Conference on Private International Law.
§ 96.79 Administrative or judicial review of adverse action by the accrediting entity.
(a) Except to the extent provided by the procedures in § 96.78, an adverse action by an accrediting entity shall not be subject to administrative review.
(b) Section 202(c)(3) of the IAA (42 U.S.C. 14922(c)(3)) provides for judicial review in Federal court of adverse actions by an accrediting entity, regardless of whether the entity is described in § 96.5(a) or (b). When any petition brought under section 202(c)(3) raises as an issue whether the deficiencies necessitating the adverse action have been corrected, the procedures maintained by the accrediting entity pursuant to § 96.78 must first be exhausted. Adverse actions are only those actions listed in § 96.75. There is no judicial review of an accrediting entity’s decision to deny accreditation or approval, including:
(1) A denial of an initial application;
(2) A denial of an application made after cancellation or refusal to renew by the accrediting entity; and
(3) A denial of an application made after cancellation or debarment by the Secretary.
(c) In accordance with section 202(c)(3) of the IAA (42 U.S.C. 14922(c)(3)), an accredited agency or approved person that is the subject of an adverse action by an accrediting entity may petition the United States district court in the judicial district in which the agency is located or the person resides to set aside the adverse action imposed by the accrediting entity. The United States district court shall review the adverse action in accordance with 5 U.S.C. 706. When an accredited agency or approved person petitions a United States district court to review the adverse action of an accrediting entity, the accrediting entity will be considered an agency as defined in 5 U.S.C. 701 for the purpose of judicial review of the adverse action.
§ 96.80 [Reserved]
Subpart L – Oversight of Accredited Agencies and Approved Persons by the Secretary
§ 96.81 Scope.
The provisions in this subpart establish the procedures governing adverse action by the Secretary against accredited agencies and approved persons.
§ 96.82 The Secretary’s response to actions by the accrediting entity.
(a) There is no administrative review by the Secretary of an accrediting entity’s decision to deny accreditation or approval, nor of any decision by an accrediting entity to take an adverse action.
(b) When informed by an accrediting entity that an agency has been accredited or a person has been approved, the Secretary will take appropriate steps to ensure that relevant information about the accredited agency or approved person is provided to the Permanent Bureau of the Hague Conference on Private International Law. When informed by an accrediting entity that it has taken an adverse action that impacts an agency’s or person’s accreditation or approval status, the Secretary will take appropriate steps to inform the Permanent Bureau of the Hague Conference on Private International Law.
§ 96.83 Suspension or cancellation of accreditation or approval by the Secretary.
(a) The Secretary must suspend or cancel the accreditation or approval granted by an accrediting entity when the Secretary finds, in the Secretary’s discretion, that the agency or person is substantially out of compliance with the standards in subpart F of this part and that the accrediting entity has failed or refused, after consultation with the Secretary, to take action.
(b) The Secretary may suspend or cancel the accreditation or approval granted by an accrediting entity if the Secretary finds that such action:
(1) Will protect the interests of children;
(2) Will further U.S. foreign policy or national security interests; or
(3) Will protect the ability of U.S. citizens to adopt children.
(c) If the Secretary suspends or cancels the accreditation or approval of an agency or person, the Secretary will take appropriate steps to notify both the accrediting entity and the Permanent Bureau of the Hague Conference on Private International Law.
§ 96.84 Reinstatement of accreditation or approval after suspension or cancellation by the Secretary.
(a) An agency or person may petition the Secretary for relief from the Secretary’s suspension or cancellation of its accreditation or approval on the grounds that the deficiencies necessitating the suspension or cancellation have been corrected. If the Secretary is satisfied that the deficiencies that led to the suspension or cancellation have been corrected, the Secretary shall, in the case of a suspension, terminate the suspension or, in the case of a cancellation, notify the agency or person that it may reapply for accreditation or approval to the same accrediting entity that handled its prior application for accreditation or approval. If that accrediting entity is no longer providing accreditation or approval services, the agency or person may reapply to any accrediting entity with jurisdiction over its application. If the Secretary terminates a suspension or permits an agency or person to reapply for accreditation or approval, the Secretary will so notify the appropriate accrediting entity. If the Secretary terminates a suspension, the Secretary will also take appropriate steps to notify the Permanent Bureau of the Hague Conference on Private International Law of the reinstatement.
(b) Nothing in this section shall be construed to prevent the Secretary from withdrawing a cancellation or suspension if the Secretary concludes that the action was based on a mistake of fact or was otherwise in error. Upon taking such action, the Secretary will take appropriate steps to notify the accrediting entity and the Permanent Bureau of the Hague Conference on Private International Law.
§ 96.85 Temporary and permanent debarment by the Secretary.
(a) The Secretary may temporarily or permanently debar an agency from accreditation or a person from approval on the Secretary’s own initiative, at the request of DHS, or at the request of an accrediting entity. A debarment of an accredited agency or approved person will automatically result in the cancellation of accreditation or approval by the Secretary, and the accrediting entity shall deny any pending request for renewal of accreditation or approval.
(b) The Secretary may issue a debarment order only if the Secretary, in the Secretary’s discretion, determines that:
(1) There is substantial evidence that the agency or person is out of compliance with the standards in subpart F of this part; and
(2) There has been a pattern of serious, willful, or grossly negligent failures to comply, or other aggravating circumstances indicating that continued accreditation or approval would not be in the best interests of the children and families concerned. For purposes of this paragraph:
(i) “The children and families concerned” include any children and any families whose interests have been or may be affected by the agency’s or person’s actions;
(ii) A failure to comply with § 96.47 (home study requirements) shall constitute a “serious failure to comply” unless it is shown by clear and convincing evidence that such noncompliance had neither the purpose nor the effect of determining the outcome of a decision or proceeding by a court or other competent authority in the United States or the child’s country of origin; and
(iii) Repeated serious, willful, or grossly negligent failures to comply with § 96.47 (home study requirements) by an agency or person after consultation between the Secretary and the accrediting entity with respect to previous noncompliance by such agency or person shall constitute a pattern of serious, willful, or grossly negligent failures to comply.
§ 96.86 Length of debarment period and reapplication after temporary debarment.
(a) In the case of a temporary debarment order, the order will take effect on the date specified in the order and will specify a date, not earlier than three years later, on or after which the agency or person may petition the Secretary for withdrawal of the temporary debarment. If the Secretary withdraws the temporary debarment, the agency or person may then reapply for accreditation or approval to the same accrediting entity that handled its prior application for accreditation or approval. If that accrediting entity is no longer providing accreditation or approval services, the agency or person may apply to any accrediting entity with jurisdiction over its application.
(b) In the case of a permanent debarment order, the order will take effect on the date specified in the order. The agency or person will not be permitted to apply again to an accrediting entity for accreditation or approval, or to the Secretary for termination of the debarment.
(c) Nothing in this section shall be construed to prevent the Secretary from withdrawing a debarment if the Secretary concludes that the action was based on a mistake of fact or was otherwise in error. Upon taking such action, the Secretary will take appropriate steps to notify the accrediting entity and the Permanent Bureau of the Hague Conference on Private International Law.
§ 96.87 Responsibilities of the accredited agency, approved person, and accrediting entity following suspension, cancellation, or debarment by the Secretary.
If the Secretary suspends or cancels the accreditation or approval of an agency or person, or debars an agency or person, the agency or person must cease to provide adoption services in all intercountry adoption cases. In the case of suspension, it must consult with the accrediting entity about whether to transfer its intercountry adoption cases and adoption records. In the case of cancellation or debarment, it must execute the plans required by §§ 96.33(e) and 96.42(d) under the oversight of the accrediting entity, and transfer its intercountry adoption cases and adoption records to other accredited agencies, approved persons, or a State archive, as appropriate. When the agency or person is unable to transfer such intercountry adoption cases or adoption records in accordance with the plans or as otherwise agreed by the accrediting entity, the accrediting entity will so advise the Secretary who, with the assistance of the accrediting entity, will coordinate efforts to identify other accredited agencies or approved persons to assume responsibility for the cases, and to transfer the records to other accredited agencies or approved persons, or to public domestic authorities, as appropriate.
§ 96.88 Review of suspension, cancellation, or debarment by the Secretary.
(a) Except to the extent provided by the procedures in § 96.84, an adverse action by the Secretary shall not be subject to administrative review.
(b) Section 204(d) of the IAA (42 U.S.C. 14924(d)) provides for judicial review of final actions by the Secretary. When any petition brought under section 204(d) raises as an issue whether the deficiencies necessitating a suspension or cancellation of accreditation or approval have been corrected, procedures maintained by the Secretary pursuant to § 96.84(a) must first be exhausted. A suspension or cancellation of accreditation or approval, and a debarment (whether temporary or permanent) by the Secretary are final actions subject to judicial review. Other actions by the Secretary are not final actions and are not subject to judicial review.
(c) In accordance with section 204(d) of the IAA (42 U.S.C. 14924(d)), an agency or person that has been suspended, cancelled, or temporarily or permanently debarred by the Secretary may petition the United States District Court for the District of Columbia, or the United States district court in the judicial district in which the person resides or the agency is located, pursuant to 5 U.S.C. 706, to set aside the action.
§ 96.89 [Reserved]
Subpart M – Dissemination and Reporting of Information by Accrediting Entities
§ 96.90 Scope.
The provisions in this subpart govern the dissemination and reporting of information on accredited agencies and approved persons by accrediting entities.
§ 96.91 Dissemination of information to the public about accreditation and approval status.
(a) The accrediting entity must maintain and make available to the public on a quarterly basis the following information:
(1) The name, address, and contact information for each agency and person it has accredited or approved;
(2) The names of agencies and persons to which it has denied accreditation or approval that have not subsequently been accredited or approved;
(3) The names of agencies and persons that have been subject to suspension, cancellation, refusal to renew accreditation or approval, or debarment by the accrediting entity or the Secretary; and
(4) Other information specifically authorized in writing by the accredited agency or approved person to be disclosed to the public.
(b) Each accrediting entity must make the following information available to individual members of the public upon specific request:
(1) Confirmation of whether or not a specific agency or person has a pending application for accreditation or approval, and, if so, the date of the application and whether it is under active consideration or whether a decision on the application has been deferred; and
(2) If an agency or person has been subject to suspension, cancellation, refusal to renew accreditation or approval, or debarment, a brief statement of the reasons for the action.
§ 96.92 Dissemination of information to the public about complaints against accredited agencies and approved persons.
Each accrediting entity must maintain a written record documenting each complaint received and the steps taken in response to it. This information may be disclosed to the public as follows:
(a) The accrediting entity must verify, upon inquiry from a member of the public, whether there have been any substantiated complaints against an accredited agency or approved person, and if so, provide information about the status and nature of any such complaints.
(b) The accrediting entity must have procedures for disclosing information about complaints that are substantiated.
§ 96.93 Reports to the Secretary about accredited agencies and approved persons and their activities.
(a) The accrediting entity must make annual reports to the Secretary on the information it collects from accredited agencies and approved persons pursuant to § 96.43. The accrediting entity must make semi-annual reports to the Secretary that summarize for the preceding six-month period the following information:
(1) The accreditation and approval status of applicants, accredited agencies, and approved persons;
(2) Any instances where it has denied accreditation or approval;
(3) Any adverse actions taken against an accredited agency or approved person;
(4) All substantiated complaints against accredited agencies and approved persons and the impact of such complaints on their accreditation or approval status;
(5) The number, nature, and outcome of complaint investigations carried out by the accrediting entity as well as the shortest, longest, average, and median length of time expended to complete complaint investigations; and
(6) Any discernible patterns in complaints received about specific agencies or persons, as well as any discernible patterns of complaints in the aggregate.
(b) The accrediting entity must report to the Secretary within thirty days of the time it learns that an accredited agency or approved person:
(1) Has ceased to provide adoption services; or
(2) Has transferred its intercountry adoption cases and adoption records.
(c) In addition to the reporting requirements contained in § 96.72, an accrediting entity must immediately notify the Secretary in writing:
(1) When it accredits an agency or approves a person;
(2) When it renews the accreditation or approval of an agency or person; or
(3) When it takes an adverse action against an accredited agency or approved person that impacts its accreditation or approval status.
§ 96.94 [Reserved]
PART 97 – ISSUANCE OF ADOPTION CERTIFICATES AND CUSTODY DECLARATIONS IN HAGUE CONVENTION ADOPTION CASES
§ 97.1 Definitions.
As used in this part:
(a) Adoption Court means the State court with jurisdiction over the adoption or the grant of custody for purpose of adoption.
(b) U.S. Authorized Entity means a public domestic authority or an agency or person that is accredited or temporarily accredited or approved by an accrediting entity pursuant to 22 CFR part 96, or a supervised provider acting under the supervision and responsibility of an accredited agency or temporarily accredited agency or approved person.
(c) Foreign Authorized Entity means a foreign Central Authority or an accredited body or entity other than the Central Authority authorized by the relevant foreign country to perform Central Authority functions in a Convention adoption case.
(d) Hague Adoption Certificate means a certificate issued by the Secretary in an outgoing case (where the child is emigrating from the United States to another Convention country) certifying that a child has been adopted in the United States in accordance with the Convention and, except as provided in § 97.4(b), the IAA.
(e) Hague Custody Declaration means a declaration issued by the Secretary in an outgoing case (where the child is emigrating from the United States to another Convention country) declaring that custody of a child for purposes of adoption has been granted in the United States in accordance with the Convention and, except as provided in § 97.4(b), the IAA.
(f) Terms defined in 22 CFR 96.2 have the meaning given to them therein.
§ 97.2 Application for a Hague Adoption Certificate or a Hague Custody Declaration (outgoing Convention case).
(a) Once the Convention has entered into force for the United States, any party to an outgoing Convention adoption or custody proceeding may apply to the Secretary for a Hague Adoption Certificate or a Hague Custody Declaration. Any other interested person may also make such application, but such application will not be processed unless such applicant demonstrates that a Hague Adoption Certificate or Hague Custody Declaration is needed to obtain a legal benefit or for purposes of a legal proceeding, as determined by the Secretary in the Secretary’s discretion.
(b) Applicants for a Hague Adoption Certificate or Hague Custody Declaration shall submit to the Secretary:
(1) A completed application form in such form as the Secretary may prescribe, with any required fee;
(2) An official copy of the order of the adoption court finding that the child is eligible for adoption and that the adoption or proposed adoption is in the child’s best interests and granting the adoption or custody for purposes of adoption;
(3) An official copy of the adoption court’s findings (either in the order granting the adoption or custody for purposes of adoption or separately) verifying, in substance, that each of the requirements of § 97.3 has been complied with or, if the adoption court has not verified compliance with a particular requirement in § 97.3, authenticated documentation showing that such requirement nevertheless has been met and a written explanation of why the adoption court’s verification of compliance with the requirement cannot be submitted; and
(4) Such additional documentation and information as the Secretary may request at the Secretary’s discretion.
(c) If the applicant fails to submit all of the documentation and information required pursuant to paragraph (b)(4) of this section within 120 days of the Secretary’s request, the Secretary may consider the application abandoned.
§ 97.3 Requirements subject to verification in an outgoing Convention case.
(a) Preparation of child background study. An accredited agency, temporarily accredited agency, or public domestic authority must complete or approve a child background study that includes information about the child’s identity, adoptability, background, social environment, family history, medical history (including that of the child’s family), and any special needs of the child.
(b) Transmission of child data. A U.S. authorized entity must conclude that the child is eligible for adoption and, without revealing the identity of the birth mother or the birth father if these identities may not be disclosed under applicable State law, transmit to a foreign authorized entity the background study, proof that the necessary consents have been obtained, and the reason for its determination that the proposed placement is in the child’s best interests, based on the home study and child background study and giving due consideration to the child’s upbringing and his or her ethnic, religious, and cultural background.
(c) Reasonable efforts to find domestic placement. Reasonable efforts pursuant to 22 CFR 96.54 must be made to actively recruit and make a diligent search for prospective adoptive parent(s) to adopt the child in the United States and a timely adoptive placement in the United States not found.
(d) Preparation and transmission of home study. A U.S. authorized entity must receive from a foreign authorized entity a home study on the prospective adoptive parent(s) prepared in accordance with the laws of the receiving country, under the responsibility of a foreign Central Authority, foreign accredited body, or public foreign authority, that includes:
(1) Information on the prospective adoptive parent(s)’ identity, eligibility, and suitability to adopt, background, family and medical history, social environment, reasons for adoption, ability to undertake an intercountry adoption, and the characteristics of the children for whom they would be qualified to care;
(2) Confirmation that a competent authority has determined that the prospective adoptive parent(s) are eligible and suited to adopt and has ensured that the prospective adoptive parent(s) have been counseled as necessary; and
(3) The results of a criminal background check.
(e) Authorization to enter. The Central Authority or other competent authority of the receiving country must declare that the child will be authorized to enter and reside in the receiving country permanently or on the same basis as the adopting parent(s).
(f) Consent by foreign authorized entity. A foreign authorized entity or competent authority must declare that it consents to the adoption, if its consent is necessary under the law of the relevant foreign country for the adoption to become final.
(g) Guardian counseling and consent. Each person, institution, and authority (other than the child) whose consent is necessary for the adoption must be counseled as necessary and duly informed of the effects of the consent (including whether or not an adoption will terminate the legal relationship between the child and his or her family of origin); must freely give consent expressed or evidenced in writing in the required legal form without any inducement by compensation of any kind; and consent must not have been subsequently withdrawn. If the consent of the mother is required, it may be given only after the birth of the child.
(h) Child counseling and consent. As appropriate in light of the child’s age and maturity, the child must be counseled and informed of the effects of the adoption and the child’s views must be considered. If the child’s consent is required, the child must also be counseled and informed of the effects of granting consent, and must freely give consent expressed or evidenced in writing in the required legal form without any inducement by compensation of any kind.
(i) Authorized entity duties. A U.S. authorized entity must:
(1) Ensure that the prospective adoptive parent(s) agree to the adoption;
(2) Agree, together with a foreign authorized entity, that the adoption may proceed;
(3) Take all appropriate measures to ensure that the transfer of the child takes place in secure and appropriate circumstances and, if possible, in the company of the adoptive parent(s) or the prospective adoptive parent(s), and arrange to obtain permission for the child to leave the United States; and
(4) Arrange to keep a foreign authorized entity informed about the adoption process and the measures taken to complete it, as well as about the progress of the placement if a probationary period is required; to return the home study and the child background study to the authorities that forwarded them if the transfer of the child does not take place; and to be consulted in the event a new placement or alternative long-term care for the child is required.
(j) Contacts. Unless the child is being adopted by a relative, there may be no contact between the prospective adoptive parent(s) and the child’s birthparent(s) or any other person who has care of the child prior to the competent authority’s determination that the prospective adoptive parent(s) are eligible and suited to adopt and the adoption court’s determinations that the child is eligible for adoption, that the requirements in paragraphs (c) and (g) of this section have been met, and that an intercountry adoption is in the child’s best interests, provided that this prohibition on contacts shall not apply if the relevant State or public domestic authority has established conditions under which such contact may occur and any such contact occurred in accordance with such conditions.
(k) Improper financial gain. No one may derive improper financial or other gain from an activity related to the adoption, and only costs and expenses (including reasonable professional fees of persons involved in the adoption) may be charged or paid.
§ 97.4 Issuance of a Hague Adoption Certificate or a Hague Custody Declaration (outgoing Convention case).
(a) Once the Convention has entered into force for the United States, the Secretary shall issue a Hague Adoption Certificate or a Hague Custody Declaration if the Secretary, in the Secretary’s discretion, is satisfied that the adoption or grant of custody was made in compliance with the Convention and the IAA.
(b) If compliance with the Convention can be certified but it is not possible to certify compliance with the IAA, the Secretary personally may authorize issuance of an appropriately modified Hague Adoption Certificate or Hague Custody Declaration, in the interests of justice or to prevent grave physical harm to the child.
§ 97.5 Certification of Hague Convention Compliance in an incoming convention case where final adoption occurs in the United States.
(a) Once the Convention has entered into force for the United States, any person may request the Secretary to certify that a Convention adoption in an incoming case finalized in the United States was done in accordance with the Convention.
(b) Persons seeking such a certification must submit the following documentation:
(1) A copy of the certificate issued by a consular officer pursuant to 22 CFR 42.24(j) certifying that the granting of custody of the child has occurred in compliance with the Convention;
(2) An official copy of the adoption court’s order granting the final adoption; and
(3) Such additional documentation and information as the Secretary may request at the Secretary’s discretion.
(c) If a person seeking the certification described in paragraph (a) of this section fails to submit all the documentation and information required pursuant to paragraph (b) of this section within 120 days of the Secretary’s request, the Department may consider the request abandoned.
(d) The Secretary may issue the certification if the Secretary, in the Secretary’s discretion, is satisfied that the adoption was made in compliance with the Convention. The Secretary may decline to issue a certification, including to a party to the adoption, in the Secretary’s discretion. A certification will not be issued to a non-party requestor unless the requestor demonstrates that the certification is needed to obtain a legal benefit or for purposes of a legal proceeding, as determined by the Secretary in the Secretary’s discretion.
(e) A State court’s final adoption decree, when based upon the certificate issued by a consular officer pursuant to 22 CFR 42.24(j), certifying that the grant of custody of the child has occurred in compliance with the Convention, or upon its determination that the requirements of Article 17 of the Convention have been met constitutes the certification of the adoption under Article 23 of the Convention.
§§ 97.6-97.7 [Reserved]
PART 98 – INTERCOUNTRY ADOPTION – CONVENTION RECORD PRESERVATION
§ 98.1 Definitions.
As used in this part:
(a) Convention means the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, done at The Hague on May 29, 1993.
(b) Convention record means any item, collection, or grouping of information contained in an electronic or physical document, an electronic collection of data (including the information contained in the Case Registry), a photograph, an audio or video tape, or any other information storage medium of any type whatever that contains information about a specific past, current, or prospective adoption covered by the Convention (regardless of whether the adoption was made final) that has been generated or received by the Secretary or the Department of Homeland Security (DHS). Convention record includes a record, generated or received by the Secretary or DHS, about a specific adoption case involving two Convention countries other than the United States in connection with which the Secretary or DHS performs a Central Authority function.
(c) Such other terms as are defined in 22 CFR 96.2 shall have the meaning given to them therein.
§ 98.2 Preservation of Convention records.
Once the Convention has entered into force for the United States, the Secretary and DHS will preserve, or require the preservation of, Convention records for a period of not less than 75 years. For Convention records involving a child who is immigrating to the United States and Convention records involving a child who is emigrating from the United States, the 75-year period shall start on the date that the Secretary or DHS generates or receives the first Convention record related to the adoption of the child. For an intercountry adoption or placement for adoption involving two Convention countries other than the United States, the 75-year period shall start on the date that the Secretary or DHS generates or receives the first Convention record in connection with the performance of a Central Authority function.
PART 99 – REPORTING ON CONVENTION AND NON-CONVENTION ADOPTIONS OF EMIGRATING CHILDREN
§ 99.1 Definitions.
As used in this part, the term:
(a) Convention means the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption done at The Hague on May 29, 1993.
(b) Such other terms as are defined in 22 CFR 96.2 shall have the meaning given to them therein.
§ 99.2 Reporting requirements for adoption cases involving children emigrating from the United States.
(a) Once the Convention has entered into force for the United States, an agency (including an accredited agency and temporarily accredited agency), person (including an approved person), public domestic authority, or other adoption service provider providing adoption services in a case involving the emigration of a child from the United States must report information to the Secretary in accordance with this section if it is identified as the reporting provider in accordance with paragraph (b) of this section.
(b) In a Convention case in which an accredited agency, temporarily accredited agency, or approved person is providing adoption services, the primary provider is the reporting provider. In any other Convention case, or in a non-Convention case, the reporting provider is the agency, person, public domestic authority, or other adoption service provider that is providing adoption services in the case, if it is the only provider of adoption services. If there is more than one provider of adoption services in a non-Convention case, the reporting provider is the one that has child placement responsibility, as evidenced by the following factors:
(1) Entering into placement contracts with prospective adoptive parent(s) to provide child referral and placement;
(2) Accepting custody from a birthparent or other legal guardian for the purpose of placement for adoption;
(3) Assuming responsibility for liaison with a foreign government or its designees with regard to arranging an adoption; or
(4) Receiving information from, or sending information to a foreign country about a child that is under consideration for adoption.
(c) A reporting provider, as identified in paragraph (b) of this section, must report the following identifying information to the Secretary for each outgoing case within 30 days of learning that the case involves emigration of a child from the United States to a foreign country:
(1) Name, date of birth of child, and place of birth of child;
(2) The U.S. State from which the child is emigrating;
(3) The country to which the child is immigrating;
(4) The U.S. State where the final adoption is taking place, or the U.S. State where legal custody for the purpose of adoption is being granted and the country where the final adoption is taking place; and
(5) Its name, address, phone number, and other contact information.
(d) A reporting provider, as identified in paragraph (b) of this section, must report any changes to information previously provided as well as the following milestone information to the Secretary for each outgoing case within 30 days of occurrence:
(1) Date case determined to involve emigration from the United States (generally the time the child is matched with adoptive parents);
(2) Date of U.S. final adoption or date on which custody for the purpose of adoption was granted in United States;
(3) Date of foreign final adoption if custody for purpose of adoption was granted in the United States, to the extent practicable; and
(4) Any additional information when requested by the Secretary in a particular case.
§ 99.3 [Reserved]
SUBCHAPTER K – ECONOMIC AND OTHER FUNCTIONS
PART 101 – ECONOMIC AND COMMERCIAL FUNCTIONS
§ 101.1 Protection of American interests.
Officers of the Foreign Service shall protect the rights and interests of the United States in its international agricultural, commercial, and financial relations. In pursuance of this duty, they shall:
(a) Guard against the infringement of rights of American citizens in matters relating to commerce and navigation which are based on custom, international law, or treaty.
(b) Observe, report on, and, whenever possible, endeavor to remove discriminations against American agricultural, commercial, and industrial interests in other countries.
(c) Protect the national commercial reputation of the United States.
§ 101.2 Promotion of American interests.
Officers of the Foreign Service shall further the agricultural and commercial interests of the United States:
(a) By carefully studying and reporting on the potentialities of their districts as a market for American products or as a competitor of American products in international trade.
(b) By investigating and submitting World Trade Directory Reports on the general standing and distributing capacity of foreign firms within their districts.
(c) By preparing and submitting upon request trade lists of commercial firms within their districts.
(d) By keeping constantly on the alert for and submitting immediate reports on concrete trade opportunities.
(e) By endeavoring to create, within the scope of the duties to which they are assigned, a demand for American products within their districts.
(f) By facilitating and reporting on proposed visits of alien businessmen to the United States.
(g) By taking appropriate steps to facilitate the promotion of such import trade into the United States as the economic interests of the United States may require.
§ 101.3 Services for American businessmen and organizations.
Officers of the Foreign Service shall perform the following-enumerated services for American citizens and business organizations in connection with the conduct of foreign trade subject to such rules and limitations thereon as may be prescribed by the Secretary of State:
(a) Answering trade inquiries.
(b) Lending direct assistance to American citizens and business firms.
(c) Encouraging the establishment of, and supporting, American chambers of commerce.
(d) Preparing themselves for and, upon instructions, performing trade conference work when in the United States on leave, or otherwise.
§ 101.4 Economic and commercial reporting.
Officers of the Foreign Service shall prepare and submit reports in connection with their duties of protecting and promoting American agricultural commercial interests and for the purpose of providing general information on economic developments within their respective districts for the Departments of State, Agriculture, and Commerce, and for other governmental departments and agencies, in accordance with such rules and regulations as the Secretary of State may prescribe.
PART 103 – REGULATIONS FOR IMPLEMENTATION OF THE CHEMICAL WEAPONS CONVENTION AND THE CHEMICAL WEAPONS CONVENTION IMPLEMENTATION ACT OF 1998 ON THE TAKING OF SAMPLES AND ON ENFORCEMENT OF REQUIREMENTS CONCERNING RECORDKEEPING AND INSPECTIONS
Subpart A – General
§ 103.1 Purpose.
This part is intended to implement sections 304(f)(1) and 501 of the Chemical Weapons Convention Implementation Act of 1998 (Act), 22 U.S.C. 6701 et seq. The Chemical Weapons Convention Regulations promulgated by the Department of Commerce, 15 CFR Parts 710 through 722, also implement sections of the Act.
§ 103.2 Definitions.
The following are definitions of terms as used in this part only.
Bureau of Export Administration (BXA). The Bureau of Export Administration of the United States Department of Commerce, including the Office of Export Administration and the Office of Export Enforcement.
Chemical Weapons Convention (CWC or Convention). The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, and its annexes opened for signature on January 13, 1993, and entered into force on April 29, 1997.
CWCIA. The Chemical Weapons Convention Implementation Act of 1998. (22 U.S.C. 6701 et seq.)
CWCR. The Chemical Weapons Convention Regulations promulgated by the Department of Commerce. (15 CFR parts 710 through 722.)
Executive Director. The Executive Director, Office of the Legal Adviser, U.S. Department of State.
Facility agreement. A written agreement or arrangement between a State Party to the Convention and the Organization for the Prohibition of Chemical Weapons relating to a specific facility subject to on-site verification pursuant to Articles IV, V, and VI of the Convention.
Final decision. A decision or order assessing a civil penalty, or otherwise disposing of or dismissing a case, which is not subject to further administrative review under this part, but which may be subject to collection proceedings or judicial review in an appropriate federal court as authorized by law.
Host Team. The U.S. Government team that accompanies the Inspection Team during a CWC inspection to which this part applies.
Host Team Leader. The head of the U.S. Government team that hosts and accompanies the Inspection Team during a CWC inspection to which this part applies.
Inspection assistant. An individual designated by the Technical Secretariat to assist inspectors in an inspection, such as medical, security and administrative personnel and interpreters.
Inspection Team. The group of inspectors and inspection assistants assigned by the Director-General of the OPCW’s Technical Secretariat to conduct a particular inspection.
Lead agency. The executive department or agency responsible for implementation of the CWC declaration and inspection requirements for specified facilities. The lead agencies are the Department of Defense (DOD) for facilities owned and operated by DOD (including those operated by contractors to the agency), and those facilities leased to and operated by DOD (including those operated by contractors to the agency); the Department of Energy (DOE) for facilities owned and operated by DOE (including those operated by contractors to the agency), and those facilities leased to and operated by DOE (including those operated by contractors to the agency), including the National Laboratories and components of the nuclear weapons complex; and the Department of Commerce (DOC) for all facilities that are not owned and operated by or leased to and operated by DOD, DOE or other U.S. Government agencies. Other departments and agencies that have notified the United States National Authority of their decision to be excluded from the CWCR shall also have lead agency responsibilities for facilities that are owned or operated by (including those operated by contractors to the agency), or that are leased to or operated by, those other departments and agencies (including those operated by contractors to the agency).
Office of Chemical and Biological Weapons Conventions. The office in the Bureau of Arms Control of the United States Department of State that includes the United States National Authority Coordinating Staff.
Organization for the Prohibition of Chemical Weapons (OPCW). The entity established by the Convention to achieve the object and purpose of the Convention, to ensure the implementation of its provisions, including those for international verification of compliance with it, and to provide a forum for consultation and cooperation among States Parties.
Party. The United States Department of State and any person named as a respondent under this part.
Perimeter. In case of a challenge inspection, the external boundary of the site, defined by either geographic coordinates or description on a map.
Person. Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, any State or any political subdivision thereof, or any political entity within a State, any foreign government or nation or any agency, instrumentality or political subdivision of any such government or nation, or other entity located in the United States.
Respondent. Any person named as the subject of a letter of intent to charge, or a Notice of Violation and Assessment (NOVA) and proposed order.
Secretary. The Secretary of State.
Technical Secretariat. The Technical Secretariat of the Organization for the Prohibition of Chemical Weapons established by the Chemical Weapons Convention.
United States National Authority. The Department of State serving as the national focal point for effective liaison with the Organization for the Prohibition of Chemical Weapons and States Parties to the Convention and implementing the provisions of the CWCIA in coordination with an interagency group designated by the President consisting of the Secretary of Defense, the Attorney General, the Secretary of Commerce, the Secretary of Energy, the Chairman of the Joint Chiefs of Staff and the heads of agencies considered necessary or advisable by the President, or their designees. The Secretary of State is the Director of the United States National Authority.
Subpart B – Samples
§ 103.3 Requirement to provide a sample.
(a) Voluntary provision of a sample. The Host Team Leader will notify appropriate site representatives of any request by an Inspection Team to take a sample. At the request of the appropriate site representative, this notification will be in writing. A site representative may volunteer to provide a sample to the Inspection Team, or may communicate to the Host Team Leader any reason for which the representative believes a sample should not be required.
(b) Notification of requirement to provide a sample. If a sample is not provided pursuant to paragraph (a) of this section, the Host Team Leader will notify, in writing, the owner or operator, occupant or agent in charge of an inspected premises of any requirement, under paragraph (c) or (e) of this section, to provide a sample pursuant to a request, made in accordance with paragraph (k) of this section, of an Inspection Team of the Technical Secretariat.
(c) Requirement to provide a sample. Pursuant to section 304(f)(1) of the CWCIA, unless a lead agency advises the United States National Authority pursuant to paragraph (d) of this section, the owner or operator, occupant or agent in charge of the premises to be inspected is hereby required to provide a sample pursuant to a request, made in accordance with paragraph (k) of this section, of an Inspection Team of the Technical Secretariat that a sample be taken in accordance with the applicable provisions contained in the Chemical Weapons Convention and the CWCIA.
(d) Consultations with the United States National Authority. After consulting with the Host Team Leader, a lead agency that finds that any of the following conditions, as modified pursuant to paragraph (j) of this section if applicable, may not have been satisfied shall promptly advise the United States National Authority, which, in coordination with the interagency group designated by the President in section 2 of Executive Order 13128, shall make a decision:
(1) The taking of a sample is consistent with the inspection aims under the Convention and with its Confidentiality Annex;
(2) The taking of a sample does not unnecessarily hamper or delay the operation of a facility or affect its safety, and is arranged so as to ensure the timely and effective discharge of the Inspection Team’s functions with the least possible inconvenience and disturbance to the facility;
(3) The taking of a sample is consistent with the applicable facility agreement. In particular:
(i) Any sample will be taken at sampling points agreed to in the relevant facility agreement; and
(ii) Any sample will be taken according to procedures agreed to in the relevant facility agreement;
(4) In the absence of a facility agreement, due consideration is given to existing sampling points used by the owner or operator, occupant or agent in charge of the premises, consistent with any procedures developed pursuant to the CWCR (15 CFR parts 710 through 722);
(5) The taking of a sample does not affect the safety of the premises and will be consistent with safety regulations established at the premises, including those for protection of controlled environments within a facility and for personal safety;
(6) The taking of a sample does not pose a threat to the national security interests of the United States; and
(7) The taking of a sample is consistent with any conditions negotiated pursuant to paragraph (j) of this section, if applicable.
(e) Determination by United States National Authority. (1) If, after being advised by the lead agency pursuant to paragraph (d) of this section, the United States National Authority, in coordination with the interagency group designated by the President to implement the provisions of the CWCIA, determines that all of the conditions of paragraph (d) are satisfied and that a sample shall be required, then the owner or the operator, occupant or agent in charge of the premises shall provide a sample pursuant to a request of the Inspection Team of the Technical Secretariat.
(2) If, however, after being advised by the lead agency pursuant to paragraph (d) of this section, the United States National Authority, in coordination with the interagency group designated by the President to implement the provisions of the CWCIA, determines that any of the conditions of paragraph (d) are not satisfied and that a sample shall not be required, then the owner or the operator, occupant or agent in charge of the premises shall not be required to provide a sample pursuant to a request of the Inspection Team of the Technical Secretariat.
(f) Person to take a sample. If a sample is required, the owner or the operator, occupant or agent in charge of the inspected premises will determine whether the sample will be taken by a representative of the premises, the Inspection Team, or any other individual present. The owner or the operator, occupant or agent in charge of the inspected premises may elect to have a representative present during the taking of a sample.
(g) Requirement that samples remain in the United States. No sample collected in the United States pursuant to an inspection permitted by the CWCIA may be transferred for analysis to any laboratory outside the territory of the United States.
(h) Handling of samples. Samples will be handled in accordance with the Convention, the CWCIA, other applicable law, and the provisions of any applicable facility agreement.
(i) Failure to comply with this section. Failure by any person to comply with this section may be treated as a violation of section 306 of the Act and section 103.5(a).
(j) Conditions that restrict sampling activities during challenge inspections. During challenge inspections within the inspected premises the Host Team may negotiate conditions that restrict activities regarding sampling, e.g., conditions that restrict where, when, and how samples are taken, whether samples are removed from the site, and how samples are analyzed.
(k) Format of Inspection Team request. It is the policy of the United States Government that Inspection Team requests for samples should be in written form from the head of the Inspection Team. When necessary, before a sample is required to be provided, the Host Team Leader should seek a written request from the head of the Inspection Team.
(l) Requirement to provide a sample in the band around the outside of the perimeter during a challenge inspection. In a band, not to exceed a width of 50 meters, around the outside of the perimeter of the inspected site, the Inspection Team, during a challenge inpsection, may take wipes, air, soil or effluent samples where either:
(1) There is consent; or
(2) Such activity is authorized by a search warrant obtained pursuant to section 305(b)(4) of the CWCIA.
Subpart C – Recordkeeping and Inspection Requirements
§ 103.4 General.
This subpart implements the enforcement of the civil penalty provisions of section 501 of the Chemical Weapons Convention Implementation Act of 1998 (CWCIA), and sets forth relevant administrative proceedings by which such violations are adjudicated. Both the Department of State (in this subpart), and the Department of Commerce (in part 719 of the CWCR at 15 CFR parts 710 through 722) are involved in the implementation and enforcement of section 501.
§ 103.5 Violations.
(a) Refusal to permit entry or inspection. No person may willfully fail or refuse to permit entry or inspection, or disrupt, delay or otherwise impede an inspection, authorized by the CWCIA.
(b) Failure to establish or maintain records. No person may willfully fail or refuse:
(1) To establish or maintain any record required by the CWCIA or the Chemical Weapons Convention Regulations (CWCR, 15 CFR parts 710 through 722) of the Department of Commerce; or
(2) To submit any report, notice, or other information to the United States Government in accordance with the CWCIA or CWCR; or
(3) To permit access to or copying of any record that is exempt from disclosure under the CWCIA or the CWCR.
§ 103.6 Penalties.
(a) Civil penalties – (1) Civil penalty for refusal to permit entry or inspection. Any person that is determined to have willfully failed or refused to permit entry or inspection, or to have willfully disrupted, delayed or otherwise impeded an authorized inspection, as set forth in § 103.5(a), shall pay a civil penalty in an amount not to exceed $45,429 for each violation. Each day the violation continues constitutes a separate violation.
(2) Civil penalty for failure to establish or maintain records. Any person that is determined to have willfully failed or refused to establish or maintain any record, or to submit any report, notice, or other information required by the CWCIA or the CWCR, or to permit access to or copying of any record exempt from disclosure under the CWCIA or CWCR as set forth in § 103.5(b), shall pay a civil penalty in an amount not to exceed $9,086 for each violation.
(b) Criminal penalties. Any person that knowingly violates the CWCIA by willfully failing or refusing to permit entry or inspection; or by disrupting, delaying or otherwise impeding an inspection authorized by the CWCIA; or by willfully failing or refusing to establish or maintain any required record, or to submit any required report, notice, or other information; or by willfully failing or refusing to permit access to or copying of any record exempt from disclosure under the CWCIA or CWCR, shall, in addition to or in lieu of any civil penalty that may be imposed, be fined under Title 18 of the United States Code, or be imprisoned for not more than one year, or both.
(c) Other remedial action – (1) Injunction. The United States may, in a civil action, obtain an injunction against:
(i) The conduct prohibited under 18 U.S.C. 229 or 229C; or
(ii) The preparation or solicitation to engage in conduct prohibited under 18 U.S.C. 229 or 229D.
(2) In addition, the United States may, in a civil action, restrain any violation of section 306 or section 405 of the CWCIA, or compel the taking of any action required by or under the CWCIA or the Convention.
§ 103.7 Initiation of administrative enforcement proceedings.
(a) Issuance of Notice of Violation and Assessment (NOVA). The Director of the Office of Export Enforcement, Bureau of Export Administration, Department of Commerce, may request that the Secretary initiate an administrative enforcement proceeding under this section and 15 CFR 719.5. If the request is in accordance with applicable law, the Secretary will initiate an administrative enforcement proceeding by issuing a Notice of Violation and Assessment (NOVA). The Office of Chief Counsel for Export Administration, Department of Commerce shall serve the NOVA as directed by the Secretary.
(b) Content of NOVA. The NOVA shall constitute a formal complaint, and will set forth the basis for the issuance of the proposed order. It will set forth the alleged violation(s) and the essential facts with respect to the alleged violation(s), reference the relevant statutory, regulatory or other provisions, and state the amount of the civil penalty to be assessed. The NOVA will inform the respondent of the right to request a hearing pursuant to paragraph (e) of this section and the CWCR (15 CFR parts 710 through 722) at 15 CFR 719.6, inform the respondent that failure to request such a hearing shall result in the proposed order becoming final and unappealable on signature of the Secretary of State, and provide payment instructions. A copy of the regulations that govern the administrative proceedings will accompany the NOVA.
(c) Proposed order. A proposed order shall accompany every NOVA. It will briefly set forth the substance of the alleged violation(s) and the statutory, regulatory or other provisions violated. It will state the amount of the civil penalty to be assessed.
(d) Notice. The Secretary shall notify, via the Department of Commerce, the respondent (or respondent’s agent for service of process or attorney) of the initiation of administrative proceedings by sending, via first class mail, facsimile, or by personal delivery, the relevant documents.
(e) Time to answer. If the respondent wishes to contest the NOVA and proposed order issued by the Secretary, the respondent must request a hearing in writing within 15 days from the date of the NOVA. If the respondent requests a hearing, the respondent must answer the NOVA within 30 days from the date of the request for hearing. The request for hearing and answer must be filed with the Administrative Law Judge (ALJ), along with a copy of the NOVA and proposed order, and served on the Office of Chief Counsel for Export Administration, Department of Commerce, and any other address(es) specified in the NOVA, in accordance with 15 CFR 719.8.
(f) Content of answer. The respondent’s answer must be responsive to the NOVA and proposed order, and must fully set forth the nature of the respondent’s defense(s). The answer must specifically admit or deny each separate allegation in the NOVA; if the respondent is without knowledge, the answer will so state and will operate as a denial. Failure to deny or controvert a particular allegation will be deemed an admission of that allegation. The answer must also set forth any additional or new matter the respondent believes supports a defense or claim of mitigation. Any defense or partial defense not specifically set forth in the answer shall be deemed waived, and evidence thereon may be refused, except for good cause shown.
(g) English required. The request for hearing, answer, and all other papers and documentary evidence must be submitted in English.
(h) Waiver. The failure of the respondent to file a request for a hearing and an answer within the times provided constitutes a waiver of the respondent’s right to appear and contest the allegations set forth in the NOVA and proposed order. If no hearing is requested and no answer is provided, the Secretary will sign the proposed order, which shall, upon signature, become final and unappealable.
(i) Administrative procedures. The regulations that govern the administrative procedures that apply when a hearing is requested are set forth in the CWCR at 15 CFR part 719.
§ 103.8 Final agency decision after administrative proceedings.
(a) Review of initial decision – (1) Petition for review. Any party may, within 7 days of the Administrative Law Judge’s (ALJ) certification of the initial decision and order, petition the Secretary for review of the initial decision. A petition for review shall be addressed to and served on the Executive Director of the Office of the Legal Adviser, U.S. Department of State, 2201 C Street, N.W., Room 5519, Washington D.C. 20520, and shall also be served on the Chief Counsel for Export Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, N.W., Room H-3839, Washington, D.C. 20230, and on the respondent. Petitions for review may be filed only on one or more of the following grounds:
(i) That a necessary finding of fact is omitted, erroneous or not supported by substantial evidence of record;
(ii) That a necessary legal conclusion or finding is contrary to law;
(iii) That a prejudicial procedural error has occurred; or
(iv) That the decision or the extent of sanctions is arbitrary, capricious or an abuse of discretion.
(2) Content of petition for review. The petition must specifically set forth the grounds on which review is requested and be supported by citations to the record, statutes, regulations, and principal authorities.
(3) Decision to review. Review of the initial decision by the Secretary is discretionary, and is not a matter of right. The Secretary shall accept or decline review of the initial decision and order within 3 days after a petition for review is filed. If no such petition is filed, the Secretary may, on his or her own initiative, notify the parties within 10 days after the ALJ’s certification of the initial decision and order that he or she intends to exercise his or her discretion to review the initial decision.
(4) Effect of decision to review. The initial decision is stayed until further order of the Secretary upon a timely petition for review, or upon action to review taken by the Secretary on his or her own initiative.
(5) Review declined. If the Secretary declines to exercise discretionary review, such order, and the resulting final agency decision, will be served on all parties personally, by overnight mail, or by registered or certified mail, return receipt requested. The Secretary need not give reasons for declining review.
(6) Review accepted. If the Secretary grants a petition for review or decides to review the initial decision on his or her own initiative, he or she will issue an order confirming that acceptance and specifying any issues to be briefed by all parties within 10 days after the order. Briefing shall be limited to the issues specified in the order. Only those issues specified in the order will be considered by the Secretary. The parties may, within 5 days after the filing of any brief of the issues, file and serve a reply to that brief. The Department of Commerce shall review all written submissions, and, based on the record, make a recommendation to the Secretary as to whether the ALJ’s initial decision should be modified or vacated. The Secretary will make a final decision within 30 days after the ALJ’s certification of the initial decision and order.
(b) Final decision. Unless the Secretary, within 30 days after the date of the ALJ’s certification of the initial decision and order, modifies or vacates the decision and order, with or without conditions, the ALJ’s initial decision and order shall become effective as the final decision and order of the United States Government. If the Secretary does modify or vacate the initial decision and order, that decision and order of the Secretary shall become the final decision and order of the United States Government. The final decision and order shall be served on the parties and will be made available to the public.
(c) Computation of time for the purposes of this section. In computing any period of time prescribed or allowed by this section, the day of the act, event, or default from which the designated period of time begins to run is not included. The last day of the period is computed to be included unless it is a Saturday, a Sunday, or a legal holiday (as defined in Rule 6(a) of the Federal Rules of Civil Procedure), in which case the period runs until the end of the next day that is neither a Saturday, a Sunday, nor a legal holiday. Intermediate Saturdays, Sundays, and legal holidays are excluded from the computation when the period of time prescribed or allowed is 7 days or less.
§ 103.9 Final agency decision after settlement negotiations.
(a) Settlements based on letter of intent to charge – (1) Approval of settlement. Pursuant to § 719.5(b) of the CWCR (15 CFR parts 710 through 722), the Department of Commerce may notify a respondent by letter of the intent to charge. If, following the issuance of such a letter of intent to charge, the Department of Commerce and respondent reach an agreement to settle a case, the Department of Commerce will recommend the proposed settlement to the Secretary. If the recommended settlement is in accordance with applicable law the Secretary will approve and sign it. No action is required by the ALJ in cases where the Secretary approves and signs such a settlement agreement and order.
(2) Refusal to approve settlement. If the Secretary refuses to approve the recommended settlement, the Secretary will notify the parties and the case will proceed as though no settlement proposal had been made.
(b) Settlements following issuance of a NOVA – (1) Approval of settlement. When the Department of Commerce and respondent reach an agreement to settle a case after administrative proceedings have been initiated before an ALJ, the Department of Commerce will recommend the settlement to the Secretary of State. If the recommended settlement is in accordance with applicable law, the Secretary will approve and sign it. If the Secretary approves the settlement, the Secretary shall notify the ALJ that the case is withdrawn from adjudication.
(2) Refusal to approve settlement. If the Secretary of State refuses to approve the recommended settlement, the Secretary will notify the parties of the disapproval, and the case will proceed as though no settlement proposal had been made.
(c) Scope of settlement. Any respondent who agrees to an order imposing any administrative sanction does so solely for the purpose of resolving the claims in the administrative enforcement proceeding brought pursuant to this part. This reflects the fact that the Government officials involved have neither the authority nor the responsibility for initiating, conducting, settling, or otherwise disposing of criminal proceedings. That authority and responsibility is vested in the Attorney General and the Department of Justice.
(d) Finality. Cases that are settled may not be reopened or appealed.
§ 103.10 Appeals.
Any person adversely affected by a final order respecting an assessment may, within 30 days after the final order is issued, file a petition in the Court of Appeals for the District of Columbia Circuit or for any other circuit in which the person resides or transacts business, to appeal the order.
§ 103.11 Payment of final assessment.
(a) Time for payment. Full payment of the civil penalty must be made within 30 days of the date upon which the final order becomes effective, or within the time specified in the order. Payment shall be made in the manner specified in the NOVA.
(b) Enforcement of order. The Secretary, through the Attorney General, may file suit in an appropriate district court if necessary to enforce compliance with a final order issued pursuant to this part. This suit will include a claim for interest at current prevailing rates from the date payment was due or ordered or, if an appeal was filed pursuant to § 103.10, from the date of final judgment.
(c) Offsets. The amount of any civil penalty imposed by a final order may be deducted from any sum(s) owed by the United States to a respondent.
§ 103.12 Reporting a violation.
If a person learns that a violation of the Convention, the CWCIA, this part, or the CWCR (15 CFR parts 710 through 722) has occurred or may occur, that person may notify: United States National Authority, Office of Chemical and Biological Weapons Conventions, Bureau of Arms Control, U.S. Department of State, Washington, DC 20520, Telephone: (703) 235-1204 or toll-free (877) CWC-NACS ((877) 292-6227), Facsimile: (703) 235-1065.
PART 104 – INTERNATIONAL TRAFFICKING IN PERSONS: INTERAGENCY COORDINATION OF ACTIVITIES AND SHARING OF INFORMATION
§ 104.1 Coordination of implementation of the Trafficking Victims Protection Act of 2000, as amended.
The Director of the Office to Monitor and Combat Trafficking in Persons of the Department of State, who is the Chairperson of the Senior Policy Operating Group of the President’s Interagency Task Force to Monitor and Combat Trafficking in Persons, shall call meetings of the Senior Policy Operating Group on a regular basis to coordinate activities of Federal departments and agencies regarding policies (including grants and grant policies) involving the international trafficking in persons and the implementation of the Trafficking Victims Protection Act of 2000, as amended.
§ 104.2 Sharing of information regarding international trafficking in persons.
Each Federal Department or agency represented on the Senior Policy Operating Group shall, to the extent permitted by law, share information on all matters relating to grants, grant policies, or other significant actions regarding the international trafficking in persons. In its coordinating role, the Senior Policy Operating Group shall establish appropriate mechanisms to effect such information sharing.
SUBCHAPTER L [RESERVED]
SUBCHAPTER M – INTERNATIONAL TRAFFIC IN ARMS REGULATIONS
PART 120 – PURPOSE AND DEFINITIONS
Subpart A – General Information
(a) Authority and delegation. Section 38 of the Arms Export Control Act (22 U.S.C. 2778), as amended, authorizes the President to control the export and import of defense articles and defense services. The statutory authority of the President to promulgate regulations with respect to exports of defense articles and defense services is delegated to the Secretary of State by Executive Order 13637. This subchapter implements that authority, as well as other relevant authorities in the Arms Export Control Act (22 U.S.C. 2751 et seq.). The Secretary of State delegates the authority to administer the regulations in this subchapter to the Deputy Assistant Secretary of State for Defense Trade Controls, Bureau of Political-Military Affairs.
(b) Authorized officials. (1) All authorities administered by the Deputy Assistant Secretary of State for Defense Trade Controls pursuant to this subchapter may be exercised at any time by the Under Secretary of State for Arms Control and International Security or the Assistant Secretary of State for Political-Military Affairs.
(2) The Deputy Assistant Secretary of State for Defense Trade Controls supervises the Directorate of Defense Trade Controls, which is comprised of the following offices:
(i) The Office of Defense Trade Controls Licensing and the Director, Office of Defense Trade Controls Licensing, which have responsibilities related to licensing or other approvals of defense trade, including references under this part and parts 123, 124, 125, 126, 129, and 130 of this subchapter.
(ii) The Office of Defense Trade Controls Compliance and the Director, Office of Defense Trade Controls Compliance, which have responsibilities related to violations of law or regulation and compliance therewith, including references contained in parts 122, 126, 127, 128, and 130 of this subchapter, and those portions under this part and part 129 of this subchapter pertaining to registration.
(iii) The Office of Defense Trade Controls Policy and the Director, Office of Defense Trade Controls Policy, which have responsibilities related to the general policies of defense trade, including references under this part and part 126 of this subchapter, and the commodity jurisdiction procedure under this part.
§ 120.2 Designation of defense articles and defense services.
The Arms Export Control Act (22 U.S.C. 2778(a) and 2794(7)) provides that the President shall designate the articles and services deemed to be defense articles and defense services for purposes of import or export controls. The President has delegated to the Secretary of State the authority to control the export and temporary import of defense articles and services. The items designated by the Secretary of State for purposes of export and temporary import control constitute the U.S. Munitions List (USML) specified in part 121 of this subchapter. Defense articles on the USML specified in part 121 of this subchapter that are also subject to permanent import control by the Attorney General on the U.S. Munitions Import List enumerated in 27 CFR part 447 are subject to temporary import controls administered by the Secretary of State. Designations of defense articles and defense services on the USML in part 121 of this subchapter are made by the Department of State with the concurrence of the Department of Defense. The scope of the USML shall be changed only by amendments made pursuant to section 38 of the Arms Export Control Act (22 U.S.C. 2778). For a designation or determination on whether a particular item is enumerated on the USML, see § 120.4.
§ 120.3 Policy on designating or determining defense articles and services on the U.S. Munitions List.
(a) For purposes of this subchapter, a specific article or service may be designated a defense article (see § 120.31) or defense service (see § 120.32) if it:
(1) Meets the criteria of a defense article or defense service on the U.S. Munitions List (USML) (part 121 of this subchapter); or
(2) Provides the equivalent performance capabilities of a defense article on the USML.
(b) For purposes of this subchapter, a specific article or service shall be determined in the future as a defense article or defense service if it provides a critical military or intelligence advantage such that it warrants control under this subchapter.
An article or service determined in the future pursuant to this subchapter as a defense article or defense service, but not currently on the USML, will be placed in Category XXI of § 121.1 of this subchapter until the appropriate category of the USML has been amended to provide the necessary entry.
(c) A specific article or service is not a defense article or defense service for purposes of this subchapter if it:
(1) Is determined to be under the jurisdiction of another department or agency of the U.S. Government (see § 120.5) pursuant to a commodity jurisdiction determination (see § 120.4) unless superseded by changes to the USML or by a subsequent commodity jurisdiction determination; or
(2) Meets one of the criteria of § 120.41(b) when the article is used in or with a defense article and specially designed is used as a control criteria.
The intended use of the article or service after its export (i.e., for a military or civilian purpose), by itself, is not a factor in determining whether the article or service is subject to the controls of this subchapter.
§ 120.4 Commodity jurisdiction.
(a) The commodity jurisdiction procedure is used with the U.S. Government if doubt exists as to whether an article or service is covered by the U.S. Munitions List (USML). It may also be used for consideration of a redesignation of an article or service currently covered by the USML. The Department must provide notice to Congress at least 30 days before any item is removed from the USML.
(b) The procedure for submitting a Commodity Jurisdiction Determination Request to the Directorate of Defense Trade Controls is set forth in § 120.12.
§ 120.5 Relation to regulations of other agencies.
(a) The Department of Justice, the U.S. Munitions Import List (USMIL), and permanent imports. Defense articles and defense services covered by the U.S. Munitions List set forth in this subchapter are regulated by the Department of State (see also § 120.2) for purposes of export, reexport, retransfer, and temporary import. The President has delegated the authority to control the permanent import of defense articles and services to the Attorney General. The defense articles and services controlled by the Secretary of State and the Attorney General collectively comprise the U.S. Munitions List under the Arms Export Control Act. As the Attorney General exercises independent delegated authority to designate defense articles and services for purposes of permanent import controls, the permanent import control list administered by the Department of Justice has been separately labeled the U.S. Munitions Import List (27 CFR part 447) to distinguish it from the list set out in this subchapter. In carrying out the functions delegated to the Attorney General pursuant to the Arms Export Control Act, the Attorney General shall be guided by the views of the Secretary of State on matters affecting world peace and the external security and foreign policy of the United States.
(b) The Department of Commerce and the Export Administration Regulations – (1) Export of items subject to the Export Administration Regulations by authority of the Department of Commerce. The Department of Commerce regulates the export, reexport, and in-country transfer of items on the Commerce Control List and other items subject to its jurisdiction, as well as certain activities performed by U.S. persons, including those that may contribute to the proliferation of weapons of mass destruction, under the Export Administration Regulations (EAR) (15 CFR parts 730 through 774).
(2) Export of items subject to the EAR by authority of the Department of State. A license or other approval (see § 120.57) from the Department of State granted in accordance with this subchapter may also authorize the export of items subject to the EAR (see § 120.58). An exemption (see § 120.57 and parts 123, 124, 125, and 126 of this subchapter) may only be used to export an item subject to the EAR that is for use in or with a defense article and is included in the same shipment as any defense article. Separate approval from the Department of Commerce is not required for these items. No exemption under this subchapter may be utilized to export an item subject to the EAR if not accompanied by a defense article. Those items subject to the EAR exported pursuant to a Department of State license or other approval would remain under the jurisdiction of the Department of Commerce for any subsequent transactions. The inclusion of items subject to the EAR on a Department of State license or other approval does not change the licensing jurisdiction of the items.
(c) Nuclear related controls; Department of Energy and the Nuclear Regulatory Commission. (1) The provisions of this subchapter do not apply to articles, technical data, or services in Category VI, Category XV, Category XVI, and Category XX of § 121.1 of this subchapter to the extent that exports of such articles, technical data, or services are controlled by the Department of Energy or the Nuclear Regulatory Commission pursuant to the Atomic Energy Act of 1954 (AEA), as amended, and the Nuclear Non-Proliferation Act of 1978, as amended, or are government transfers authorized pursuant to these Acts. For Department of Commerce controls, see 15 CFR 742.3 and 744.2, administered pursuant to Section 309(c) of the Nuclear Nonproliferation Act of 1978, as amended (42 U.S.C. 2139a(c)), and 15 CFR 744.5, which are not subject to this subchapter.
(2) The transfer of materials, including special nuclear materials, nuclear parts of nuclear weapons, or other, non-nuclear parts of nuclear weapons systems involving Restricted Data or of assistance involving any person directly or indirectly engaging in the production or use thereof is prohibited except as authorized by the AEA. The transfer of Restricted Data or such assistance is prohibited except as authorized by the AEA. The technical data or defense services relating to nuclear weapons, nuclear weapons systems or related defense purposes (and such data or services relating to applications of atomic energy for peaceful purposes, or related research and development) may constitute Restricted Data or such assistance, subject to the foregoing prohibition.
(3) A license for the export of a defense article, technical data, or the furnishing of a defense service relating to defense articles referred to in Category VI(e) or Category XX(b)(1) of § 121.1 of this subchapter will not be granted unless the defense article, technical data, or defense service comes within the scope of an existing Agreement for Cooperation for Mutual Defense Purposes concluded pursuant to the AEA with the government of the country to which the defense article, technical data, or defense service is to be exported. Licenses may be granted in the absence of such an agreement only:
(i) If the proposed export involves an article which is identical to that in use in an unclassified civilian nuclear power plant;
(ii) If the proposed export has no relationship to naval nuclear propulsion; and
(iii) If it is not for use in a naval propulsion plant.
§ 120.6 U.S. criminal statutes.
For purposes of this subchapter, the phrase U.S. criminal statutes comprises the following:
(a) Section 38 of the Arms Export Control Act (22 U.S.C. 2778);
(b) Section 1760 of the Export Control Reform Act of 2018 (50 U.S.C. 4819) or section 11 of the Export Administration Act of 1979 (50 U.S.C. 4610);
(c) Section 793, 794, or 798 of title 18, United States Code (relating to espionage involving defense or classified information) or section 2332d, 2339A, 2339B, 2339C, or 2339D of such title (relating to financial transactions with the government of a country designated as a country supporting international terrorism, providing material support to terrorists or terrorist organizations, financing of terrorism, or receiving military-type training from a foreign terrorist organization);
(d) Section 16 of the Trading with the Enemy Act (50 U.S.C. 4315);
(e) Section 206 of the International Emergency Economic Powers Act (relating to foreign assets controls; 50 U.S.C. 1705);
(f) Section 30A of the Securities Exchange Act of 1934 (15 U.S.C. 78dd-1) or section 104 of the Foreign Corrupt Practices Act (15 U.S.C. 78dd-2 or 78dd-3);
(g) Chapter 105 of title 18, United States Code (relating to sabotage);
(h) Section 4(b) of the Internal Security Act of 1950 (relating to communication of classified information; 50 U.S.C. 783(a));
(i) Sections 57, 92, 101, 104, 222, 224, 225, or 226 of the Atomic Energy Act of 1954 (42 U.S.C. 2077, 2122, 2131, 2134, 2272, 2274, 2275, and 2276);
(j) Section 601 of the National Security Act of 1947 (relating to intelligence identities protection; 50 U.S.C. 421);
(k) Section 371 of title 18, United States Code (when it involves conspiracy to violate any of the statutes listed in this section);
(l) Sections 3, 4, 5, and 6 of the Intelligence Reform and Terrorism Prevention Act of 2004, Public Law 108-458 sections 6903-6906, relating to missile systems designed to destroy aircraft (18 U.S.C. 2332g), prohibitions governing atomic weapons (42 U.S.C. 2122), radiological dispersal services (18 U.S.C. 2332h), and variola virus (18 U.S.C. 175c);
(m) Sections 2779 and 2780 of title 22, United States Code (relating to fees of military sales agents and other payments, and transactions with countries supporting acts of international terrorism);
(n) Section 542 of title 18, United States Code (relating to the entry of goods by means of false statements), where the underlying offense involves a defense article, including technical data, or violations related to the Arms Export Control Act (AECA) or International Traffic in Arms Regulations (ITAR) in this subchapter;
(o) Section 545 of title 18, United States Code (relating to smuggling goods into the United States), where the underlying offense involves a defense article, including technical data, or violations related to the AECA or ITAR;
(p) Section 554 of title 18, United States Code (relating to smuggling goods from the United States), where the underlying offense involves a defense article, including technical data, or violations related to the AECA or ITAR; and
(q) Section 1001 of title 18, United States Code (relating to false statements or entries generally), Section 1831 of title 18, United States Code (relating to economic espionage), and Section 1832 of title 18, United States Code (relating to theft of trade secrets) where the underlying offense involves a defense article, including technical data, or violations related to the AECA or ITAR.
§ 120.7 Relations to other provisions of law.
(a) The provisions in this subchapter are in addition to, and are not in lieu of, any other provisions of law or regulations. The sale of firearms in the United States, for example, remains subject to the provisions of the Gun Control Act of 1968 and regulations administered by the Department of Justice. The performance of defense services on behalf of foreign governments by retired military personnel continues to require consent pursuant to part 3a of this title. Persons who intend to export defense articles or furnish defense services should not assume that satisfying the requirements of this subchapter relieves one of other requirements of law.
(b) All determinations, authorizations, licenses, approvals of contracts and agreements, and other action issued, authorized, undertaken, or entered into by the Department of State pursuant to section 414 of the Mutual Security Act of 1954, as amended, or under the previous provisions of this subchapter, continue in full force and effect until or unless modified, revoked, or superseded by the Department of State.
§§ 120.8-120.9 [Reserved]
Subpart B – General Policies and Processes
§ 120.10 Introduction to the U.S. Munitions List.
(a) The U.S. Munitions List. The articles, services, and related technical data designated as defense articles or defense services pursuant to sections 38 and 47(7) of the Arms Export Control Act appear in part 121 of this subchapter and constitute the U.S. Munitions List (USML). Changes in designations are published in the
(b) Composition of U.S. Munitions List categories. USML categories are organized by paragraphs and subparagraphs identified alphanumerically. They usually start by enumerating or otherwise describing end-items, followed by major systems and equipment; parts, components, accessories, and attachments; and technical data and defense services directly related to the defense articles of that USML category.
(c) Significant Military Equipment paragraphs in the USML. All items described within a USML paragraph or subordinate paragraph that is preceded by an asterisk (*) are designated Significant Military Equipment (SME). Note that technical data directly related to the manufacture or production of a defense article designated as SME is also designated as SME.
(d) Missile Technology Control Regime (MTCR) designation. Annotation with the parenthetical (MT) at the end of a USML entry indicates those defense articles that are on the MTCR Annex.
§ 120.11 Order of review.
(a) Control. Articles are controlled on the U.S. Munitions List (USML) because they are either:
(1) Enumerated in a category; or
(2) Described in a catch-all paragraph that incorporates specially designed as a control parameter. In order to classify an item on the USML, begin with a review of the general characteristics of the item. This should guide you to the appropriate category, whereupon you should attempt to match the particular characteristics and functions of the article to a specific entry within that category.
(b) Specially designed. (1) If the entry includes the term specially designed, refer to § 120.41 to determine if the article qualifies for one or more of the exclusions articulated in § 120.41(b).
(2) An item described in multiple entries should be categorized according to an enumerated entry rather than a specially designed catch-all paragraph.
(c) Integration of controlled items. Defense articles described on the USML are controlled and remain subject to this subchapter following incorporation or integration into any item not described on the USML, unless specifically provided otherwise in this subchapter.
(d) Other controls. In all cases, articles not controlled on the USML may be subject to another U.S. Government regulatory agency (see § 120.5, and Supplement No. 4 to part 774 of the Export Administration Regulations (EAR) in title 15 of the CFR for guidance on classifying an item subject to the EAR).
§ 120.12 Commodity jurisdiction determination requests.
(a) Upon electronic submission of a Commodity Jurisdiction Determination Form (Form DS-4076), the Directorate of Defense Trade Controls (DDTC) shall provide a determination of whether a particular article or service is covered by the U.S. Munitions List in part 121 of this subchapter. The determination, consistent with §§ 120.2, 120.3, and 120.4, entails consultation among the Departments of State, Defense, Commerce, and other U.S. Government agencies and industry in appropriate cases. State, Defense, and Commerce will resolve commodity jurisdiction determination disputes in accordance with established procedures. State shall notify Defense and Commerce, and other U.S. Government agencies as appropriate, of the initiation and conclusion of each case.
(b) A determination that an article or service meets the criteria of a defense article or defense service, or provides the equivalent performance capabilities of a defense article on the U.S. Munitions List, is made on a case-by-case basis, taking into account:
(1) The form and fit of the article;
(2) The function and performance capability of the article; and
(3) Other applicant-provided information, to include a history of the product’s design, development, and use, as well as specifications and any other relevant data as described in brochures and other related documents.
(c) A determination that an article or service has a critical military or intelligence advantage such that it warrants control under Category XXI of § 121.1 of this subchapter is made, on a case-by-case basis, taking into account:
(1) The function and performance capability of the article; and
(2) The nature of controls imposed by other nations on such items (including the Wassenaar Arrangement and other multilateral controls).
(d) DDTC will provide a preliminary response within 10 working days of receipt of a complete request for commodity jurisdiction determination. If after 45 days DDTC has not provided a final commodity jurisdiction determination, the applicant may request in writing to the Director, Office of Defense Trade Controls Policy that this determination be given expedited processing.
(e) A person may appeal a commodity jurisdiction determination by submitting a written request for reconsideration to the Deputy Assistant Secretary of State for Defense Trade Controls. The Deputy Assistant Secretary’s determination of the appeal will be provided, in writing, within 30 days of receipt of the appeal. If desired, an appeal of the Deputy Assistant Secretary’s decision can then be made to the Assistant Secretary of State for Political-Military Affairs.
(f) Registration with DDTC as described in part 122 of this subchapter is not required prior to submission of a commodity jurisdiction determination request.
§ 120.13 Registration.
(a) Any person who engages in the United States in the business of manufacturing or exporting or temporarily importing defense articles, or furnishing defense services, is required to register with the Directorate of Defense Trade Controls as set forth in part 122 of this subchapter. For the purpose of this subchapter, engaging in such a business requires only one occasion of manufacturing or exporting or temporarily importing a defense article or furnishing a defense service. A manufacturer who does not engage in exporting must nevertheless register.
(b) Any U.S. person; foreign person located in the United States; or foreign person located outside the United States that is owned or controlled by a U.S. person, who engages in brokering activities is required to register with the Directorate of Defense Trade Controls as set forth in part 129 of this subchapter.
(c) The registration requirements as set forth in parts 122 and 129 of this subchapter include limited exemptions.
(a) Export, reexport, retransfer, or temporary import, of defense articles. The approval of the Directorate of Defense Trade Controls (DDTC) must be requested and obtained before the export, reexport, retransfer, or temporary import of a defense article, unless an exemption under the provisions of this subchapter is applicable.
(b) Furnishing defense services. The approval of DDTC must be requested and obtained before a defense service may be furnished, unless an exemption under the provisions of this subchapter is applicable.
(c) Brokering activities. The approval of DDTC must be requested and obtained before engaging in the business of brokering activities for the defense articles described in § 129.4(a) of this subchapter by a person who is required to register as a broker under part 129 of this subchapter, unless an exemption under the provisions of part 129 is applicable.
§ 120.15 Exemptions.
(a) Persons otherwise required to register with the Directorate of Defense Trade Controls in accordance with this subchapter must do so prior to utilization of an exemption.
(b) Exemptions provided in this subchapter may not be utilized for transactions in which the exporter, any party to the export, any source or manufacturer, broker or other participant in the brokering activities, is generally ineligible as set forth in § 120.16, unless prior written authorization has been granted by the Directorate of Defense Trade Controls.
(c) Exemptions provided in this subchapter do not apply with respect to defense articles or defense services originating in or for export to any proscribed countries, areas, or persons identified in § 126.1 of this subchapter, except as provided in § 126.1.
(d) Each exemption provided in this subchapter is subject to limitation as described in the section or paragraph of this subchapter in which the exemption is prescribed.
(e) Any person engaging in any export, reexport, transfer, or retransfer of a defense article or defense service pursuant to an exemption must maintain records of each such export, reexport, transfer, or retransfer. The records shall, to the extent applicable to the transaction and consistent with the requirements of § 123.22 of this subchapter, include the following information: A description of the defense article, including technical data, or defense service; the name and address of the end-user and other available contact information (e.g., telephone number and electronic mail address); the name of the natural person responsible for the transaction; the stated end-use of the defense article or defense service; the date of the transaction; the Electronic Export Information (EEI) Internal Transaction Number (ITN); and the method of transmission. The person using or acting in reliance upon the exemption shall also comply with any additional recordkeeping requirements enumerated in the text of the regulations concerning such exemption (e.g., requirements specific to the Defense Trade Cooperation Treaties in §§ 126.16 and 126.17 of this subchapter).
(f) To claim an exemption for the export of technical data under the provisions of this subchapter (e.g., §§ 125.4 and 125.5 of this subchapter), the exporter must certify that the proposed export is covered by a relevant section of this subchapter, to include the paragraph and applicable subordinate paragraph. Certifications consist of clearly marking the package or letter containing the technical data “22 CFR [insert ITAR exemption] applicable.” This certification must be made in written form and retained in the exporter’s files for a period of 5 years. For exports that are oral, visual, or electronic the exporter must also complete a written certification and retain it for a period of 5 years.
§ 120.16 Eligibility for approvals.
(a) A U.S. person may receive a license or other approval pursuant to this subchapter. A foreign person may not receive such a license or other approval, except as follows:
(1) A foreign governmental entity in the U.S. may receive a license or other approval;
(2) A foreign person may receive a reexport or retransfer approval; or
(3) A foreign person may receive an approval for brokering activities.
(b) A request for a license or other approval by a U.S. person or by a person referred to in paragraphs (a)(1) and (3) of this section will be considered only if the applicant has registered with the Directorate of Defense Trade Controls pursuant to part 122 or 129 of this subchapter, as appropriate.
(c) Persons who have been convicted of violating the U.S. criminal statutes enumerated in § 120.6, who have been debarred pursuant to part 127 or 128 of this subchapter, who are subject to indictment or are otherwise charged (e.g., charged by criminal information in lieu of indictment) with violating the U.S. criminal statutes enumerated in § 120.6, who are ineligible to contract with or to receive a license or other form of authorization to import defense articles or defense services from any agency of the U.S. Government, who are ineligible to receive an export license or other approval from any other agency of the U.S. Government, or who are subject to a publicly announced Department of State policy of denial, suspension, or revocation under § 120.18(a), are generally ineligible to be involved in activities regulated under this subchapter.
§ 120.17 End-use monitoring.
(a) Pursuant to section 40A of the Arms Export Control Act (22 U.S.C. 2785) and related delegations of authority, the Department of State is required to establish a monitoring program in order to improve accountability with respect to defense articles and defense services, sold, leased, or exported under Department of State licenses or other approvals under section 38 of the Arms Export Control Act and this subchapter.
(b) All exports of defense articles, technical data, services, and brokering activities made pursuant to this subchapter are subject to end-use monitoring by the Department of State through the Blue Lantern program.
§ 120.18 Denial, revocation, suspension, or amendment of licenses and other approvals.
(a) Policy. Licenses or approvals shall be denied or revoked whenever required by any statute of the United States. Any application for an export license or other approval under this subchapter may be disapproved, and any license or other approval or exemption granted under this subchapter may be revoked, suspended, or amended without prior notice whenever:
(1) The Department of State deems such action to be in furtherance of world peace, the national security or the foreign policy of the United States, or is otherwise advisable; or
(2) The Department of State believes that 22 U.S.C. 2778, any regulation contained in this subchapter, or the terms of any U.S. Government export authorization (including the terms of a manufacturing license or technical assistance agreement, or export authorization granted pursuant to the Export Administration Regulations in 15 CFR parts 730 through 774) has been violated by any party to the export or other person having significant interest in the transaction; or
(3) An applicant is the subject of a criminal complaint, other criminal charge (e.g., an information), or indictment for a violation of any of the U.S. criminal statutes enumerated in § 120.6; or
(4) An applicant or any party to the export or the agreement has been convicted of violating any of the U.S. criminal statutes enumerated in § 120.6; or
(5) An applicant is ineligible to contract with, or to receive a license or other authorization to import defense articles or defense services from, any agency of the U.S. Government; or
(6) An applicant, any party to the export or agreement, any source or manufacturer of the defense article or defense service or any person who has a significant interest in the transaction has been debarred, suspended, or otherwise is ineligible to receive an export license or other authorization from any agency of the U.S. Government (e.g., pursuant to an order denying export privileges issued by the Department of Commerce under 15 CFR part 766 or by the Department of State under part 127 or 128 of this subchapter); or
(7) An applicant has failed to include any of the information or documentation expressly required to support a license application, exemption, or other request for approval under this subchapter, or as required in the instructions in the applicable Department of State form or has failed to provide notice or information as required under this subchapter; or
(8) An applicant is subject to sanctions under other relevant U.S. laws (e.g., the Missile Technology Controls title of the National Defense Authorization Act for FY 1991 (Pub. L. 101-510); the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (Pub. L. 102-182); or the Iran-Iraq Arms Non-Proliferation Act of 1992 (Pub. L. 102-484)); or
(9) Any person involved in the transaction has been the subject of an unfavorable finding of an end-use monitoring check as described in § 120.17.
(b) Notification. The Directorate of Defense Trade Controls will notify applicants or licensees or other appropriate U.S. persons of actions taken pursuant to paragraph (a) of this section. The reasons for the action will be stated as specifically as security and foreign policy considerations permit.
(c) Reconsideration. If a written request for reconsideration of an adverse decision is made within 30 days after a person has been informed of the decision, the U.S. person will be accorded an opportunity to present additional information. The case will then be reviewed by the Directorate of Defense Trade Controls.
(d) Reconsideration of certain applications. Applications for licenses or other requests for approval denied for repeated failure to provide information or documentation expressly required will normally not be reconsidered during the 30 day period following denial. They will be reconsidered after this period only after a final decision is made on whether the applicant will be subject to an administrative penalty imposed pursuant to this subchapter. Any request for reconsideration shall be accompanied by a letter explaining the steps that have been taken to correct the failure and to ensure compliance with the requirements of this subchapter.
§ 120.19 Violations and penalties.
(a) Part 127 of this subchapter specifies conduct that constitutes a violation of the Arms Export Control Act (AECA) and/or the International Traffic in Arms Regulations in this subchapter and the sanctions that may be imposed for such violations.
(b) The Department strongly encourages the disclosure of information to the Directorate of Defense Trade Controls by persons that believe they may have violated any export control provision of the AECA, or any regulation in this subchapter, order, license, or other authorization issued under the authority of the AECA.
§ 120.20 Administrative procedures.
The Arms Export Control Act (AECA) authorizes the President to control the import and export of defense articles and services in furtherance of world peace and the security and foreign policy of the United States. Pursuant to delegated authorities, the Secretary of State is authorized to make decisions on whether license applications or other written requests for approval shall be granted, or whether exemptions may be used. The Secretary of State is also authorized to revoke, suspend, or amend licenses or other written approvals whenever such action is deemed to be advisable. The administration of the AECA is a foreign affairs function encompassed within the meaning of the military and foreign affairs exclusion of the Administrative Procedure Act and is thereby expressly exempt from various provisions of that Act. Because the exercising of the foreign affairs function, including the decisions required to implement the AECA, is highly discretionary, it is excluded from review under the Administrative Procedure Act.
§ 120.21 Disclosure of information.
(a) Freedom of information. Subchapter R of this title contains regulations on the availability to the public of information and records of the Department of State. The provisions of subchapter R apply to such disclosures by the Directorate of Defense Trade Controls.
(b) Determinations required by law. Section 38(e) of the Arms Export Control Act (AECA) (22 U.S.C. 2778(e)) provides that information obtained for the purpose of consideration of, or concerning, license applications shall be withheld from public disclosure unless the release of such information is determined by the Secretary of State to be in the national interest. Section 38(e) of the AECA further provides that the names of countries and types and quantities of defense articles for which licenses are issued under this section shall not be withheld from public disclosure unless certain determinations are made that the release of such information would be contrary to the national interest. Such determinations required by section 38(e) shall be made by the Assistant Secretary of State for Political-Military Affairs.
(c) Information required under part 130 of this subchapter. Part 130 contains specific provisions on the disclosure of information described in that part.
(d) National interest determinations. In accordance with section 38(e) of the AECA, the Secretary of State has determined that the following disclosures are in the national interest of the United States:
(1) Furnishing information to foreign governments for law enforcement or regulatory purposes; and
(2) Furnishing information to foreign governments and other agencies of the U.S. Government in the context of multilateral or bilateral export regimes (e.g., the Missile Technology Control Regime, the Australia Group, and Wassenaar Arrangement).
(a) Preliminary authorization determinations. A person may request information from the Directorate of Defense Trade Controls (DDTC) as to whether it would likely grant a license or other approval for a particular defense article or defense service to a particular country. Such information from DDTC is issued on a case-by-case basis and applies only to the particular matters presented to DDTC. These opinions are not binding on the Department of State and may not be used in future matters before the Department. A request for an advisory opinion must be made in writing and must outline in detail the equipment, its usage, the security classification (if any) of the articles or related technical data, and the country or countries involved.
(b) Related authorizations. DDTC may, as appropriate, in accordance with the procedures set forth in paragraph (a) of this section, provide export authorization, subject to all other relevant requirements of this subchapter, both for transactions that have been the subject of advisory opinions requested by prospective U.S. exporters, or for the Directorate’s own initiatives. Such initiatives may cover pilot programs, or specifically anticipated circumstances for which the Directorate considers special authorizations appropriate.
(c) Interpretations of the International Traffic in Arms Regulations in this subchapter. Any person may request an interpretation of the requirements set forth in this subchapter in the form of an advisory opinion. A request for an advisory opinion must be made in writing. Any response to an advisory opinion provided by DDTC pursuant to this paragraph (c) shall not be an authorization to export and shall not bind the Department to grant or deny any such authorization.
§ 120.23 Organizations and arrangements.
(a) North Atlantic Treaty Organization. North Atlantic Treaty Organization (NATO) refers to the organization of member states that are parties to the North Atlantic Treaty, which members include: Albania, Belgium, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, Montenegro, the Netherlands, North Macedonia, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Turkey, the United Kingdom, the United States, and any state not included here that has deposited an instrument of accession in accordance with Article 10 of the North Atlantic Treaty.
(b) Major non-NATO ally. (1) Major non-NATO ally, as defined in section 644(q) of the Foreign Assistance Act of 1961 (22 U.S.C. 2403(q)), means a country that is designated in accordance with section 517 of the Foreign Assistance Act of 1961 (22 U.S.C. 2321k) as a major non-NATO ally for purposes of the Foreign Assistance Act of 1961 and the Arms Export Control Act (22 U.S.C. 2151 et seq. and 22 U.S.C. 2751 et seq.).
(2) The following countries are designated as major non-NATO allies: Afghanistan (see § 126.1(g) of this subchapter), Argentina, Australia, Bahrain, Brazil, Egypt, Israel, Japan, Jordan, Kuwait, Morocco, New Zealand, Pakistan, the Philippines, the Republic of Korea, Thailand, and Tunisia. Taiwan shall be treated as though it were designated a major non-NATO ally.
(c) Wassenaar Arrangement. (1) The Wassenaar Arrangement refers to the Wassenaar Arrangement on Export Controls for Conventional Arms and Dual-Use Goods and Technologies among the United States, Argentina, Australia, Austria, Belgium, Bulgaria, Canada, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, India Ireland, Italy, Japan, Latvia, Lithuania, Luxembourg, Malta, Mexico, Netherlands, New Zealand, Norway, Poland, Portugal, the Republic of Korea, Romania, the Russian Federation, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Turkey, Ukraine, and the United Kingdom, established on 12 July 1996, to promote transparency and greater responsibility in transfers of conventional arms and dual-use goods and technologies.
(2) The term Wassenaar Munitions List (WAML) refers to the list of military items for which all participants have agreed to maintain national export controls.
(d) Missile Technology Control Regime – (1) Regime. Missile Technology Control Regime (MTCR) refers to the policy statement among the United States, the United Kingdom, the Federal Republic of Germany, France, Italy, Canada, and Japan, announced on April 16, 1987, to restrict sensitive missile-relevant transfers based on the MTCR Annex, and any amendments thereto.
(2) MTCR Annex. The term MTCR Annex refers to the MTCR Guidelines and the Equipment, Software and Technology Annex of the MTCR, and any amendments thereto.
(3) List of all items on the MTCR Annex. MTCR Annex items specified in the U.S. Munitions List shall be annotated by the parenthetical (MT) at the end of each applicable paragraph.
(e) Defense Trade Cooperation Treaty between the United States and Australia. Defense Trade Cooperation Treaty between the United States and Australia refers to the Treaty between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation, done at Sydney, September 5, 2007. For additional information on making exports pursuant to this treaty, see § 126.16 of this subchapter.
(f) Australia Implementing Arrangement. Australia Implementing Arrangement refers to the Implementing Arrangement Pursuant to the Treaty between the Government of the United States of America and the Government of Australia Concerning Defense Trade Cooperation, done at Washington, March 14, 2008, as it may be amended.
(g) Defense Trade Cooperation Treaty between the United States and the United Kingdom. Defense Trade Cooperation Treaty between the United States and the United Kingdom refers to the Treaty between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning Defense Trade Cooperation, done at Washington and London, June 21 and 26, 2007. For additional information on making exports pursuant to this treaty, see § 126.17 of this subchapter.
(h) United Kingdom Implementing Arrangement. United Kingdom Implementing Arrangement refers to the Implementing Arrangement Pursuant to the Treaty between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland Concerning Defense Trade Cooperation, done at Washington, February 14, 2008, as it may be amended.
§§ 120.24-120.29 [Reserved]
Subpart C – Definitions
§ 120.30 Directorate of Defense Trade Controls.
Directorate of Defense Trade Controls, Bureau of Political-Military Affairs, Department of State, Washington, DC 20522-0112.
§ 120.31 Defense article.
(a) Defense article means any item or technical data designated in § 121.1 of this subchapter and includes:
(1) Technical data recorded or stored in any physical form, models, mockups or other items that reveal technical data directly relating to items designated in § 121.1 of this subchapter; and
(2) Forgings, castings, and other unfinished products, such as extrusions and machined bodies, that have reached a stage in manufacturing where they are clearly identifiable by mechanical properties, material composition, geometry, or function as defense articles.
(b) It does not include basic marketing information on function or purpose or general system descriptions.
(c) The policy described in § 120.3 is applicable to designations of additional items.
§ 120.32 Defense service.
(a) Defense service means:
(1) The furnishing of assistance (including training) to foreign persons, whether in the United States or abroad in the design, development, engineering, manufacture, production, assembly, testing, repair, maintenance, modification, operation, demilitarization, destruction, processing, or use of defense articles;
(2) The furnishing to foreign persons of any technical data controlled under this subchapter, whether in the United States or abroad; or
(3) Military training of foreign units and forces, regular and irregular, including formal or informal instruction of foreign persons in the United States or abroad or by correspondence courses, technical, educational, or information publications and media of all kinds, training aid, orientation, training exercise, and military advice.
(b) [Reserved]
§ 120.33 Technical data.
(a) Technical data means for purposes of this subchapter:
(1) Information, other than software as defined in § 120.40(g), which is required for the design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of defense articles. This includes information in the form of blueprints, drawings, photographs, plans, instructions, or documentation;
(2) Classified information relating to defense articles and defense services on the U.S. Munitions List and 600-series items controlled by the Commerce Control List;
(3) Information covered by an invention secrecy order; or
(4) Software (see § 120.40(g)) directly related to defense articles.
(b) The definition in paragraph (a) of this section does not include information concerning general scientific, mathematical, or engineering principles commonly taught in schools, colleges, and universities, or information in the public domain as defined in § 120.34 or telemetry data as defined in note 3 to Category XV(f) of § 121.1 of this subchapter. It also does not include basic marketing information on function or purpose or general system descriptions of defense articles.
§ 120.34 Public domain.
(a) Public domain means information which is published and which is generally accessible or available to the public:
(1) Through sales at newsstands and bookstores;
(2) Through subscriptions which are available without restriction to any individual who desires to obtain or purchase the published information;
(3) Through second class mailing privileges granted by the U.S. Government;
(4) At libraries open to the public or from which the public can obtain documents;
(5) Through patents available at any patent office;
(6) Through unlimited distribution at a conference, meeting, seminar, trade show, or exhibition, generally accessible to the public, in the United States;
(7) Through public release (i.e., unlimited distribution) in any form (e.g., not necessarily in published form) after approval by the cognizant U.S. Government department or agency (see also § 125.4(b)(13) of this subchapter); or
(8) Through fundamental research in science and engineering at accredited institutions of higher learning in the U.S. where the resulting information is ordinarily published and shared broadly in the scientific community. Fundamental research is defined to mean basic and applied research in science and engineering where the resulting information is ordinarily published and shared broadly within the scientific community, as distinguished from research the results of which are restricted for proprietary reasons or specific U.S. Government access and dissemination controls. University research will not be considered fundamental research if:
(i) The University or its researchers accept other restrictions on publication of scientific and technical information resulting from the project or activity; or
(ii) The research is funded by the U.S. Government and specific access and dissemination controls protecting information resulting from the research are applicable.
(b) [Reserved]
§ 120.35 [Reserved]
§ 120.36 Significant military equipment.
(a) Significant military equipment means articles for which special export controls are warranted because of their capacity for substantial military utility or capability.
(b) Significant military equipment includes:
(1) Items in § 121.1 of this subchapter that are preceded by an asterisk; and
(2) All classified articles enumerated in § 121.1 of this subchapter.
§ 120.37 Major defense equipment.
Major defense equipment, pursuant to section 47(6) of the Arms Export Control Act (22 U.S.C. 2794(6)), means any item of significant military equipment on the U.S. Munitions List having a nonrecurring research and development cost of more than $50,000,000 or a total production cost of more than $200,000,000.
§ 120.38 Classified.
Classified means classified pursuant to Executive Order 13526, or predecessor order, and a security classification guide developed pursuant thereto or equivalent, or to the corresponding classification rules of another government or international organization.
§ 120.39 Foreign defense article or defense service.
Foreign defense article or defense service means any article or service described on the U.S. Munitions List of non-U.S. origin. Unless otherwise provided in this subchapter, the terms defense article and defense service refer to both U.S. and foreign origin defense articles and defense services described on the U.S. Munitions List. A defense article or defense service is determined exclusively in accordance with the Arms Export Control Act and this subchapter, regardless of any designation (either affirming or contrary) that may be attributed to the same article or service by any foreign government or international organization.
§ 120.40 Compositional terms.
(a) Commodity means any article, material, or supply, except technology/technical data or software.
(b) An end-item is a system, equipment, or an assembled article ready for its intended use. Only ammunition or fuel or other energy source is required to place it in an operating state.
(c) A component is an item that is useful only when used in conjunction with an end-item:
(1) A major component includes any assembled element that forms a portion of an end-item without which the end-item is inoperable; and
(2) A minor component includes any assembled element of a major component.
(d) Accessories and attachments are associated articles for any component, equipment, system, or end-item, and which are not necessary for its operation, but which enhance its usefulness or effectiveness.
(e) A part is any single unassembled element of a major or a minor component, accessory, or attachment which is not normally subject to disassembly without the destruction or the impairment of designed use.
(f) Firmware and any related unique support tools (such as computers, linkers, editors, test case generators, diagnostic checkers, library of functions, and system test diagnostics) directly related to equipment or systems covered under any category of the U.S. Munitions List are considered as part of the end-item or component. Firmware includes but is not limited to circuits into which software has been programmed.
(g) Software includes but is not limited to the system functional design, logic flow, algorithms, application programs, operating systems, and support software for design, implementation, test, operation, diagnosis, and repair. A person who intends to export only software should, unless it is specifically enumerated in § 121.1 of this subchapter (e.g., USML Category XIII(b)), apply for a license pursuant to part 125 of this subchapter.
(h) A system is a combination of parts, components, accessories, attachments, firmware, software, equipment, or end-items that operate together to perform a function.
The industrial standards established by the International Council on Systems Engineering (INCOSE), National Aeronautics and Space Administration (NASA), and International Organization for Standardization (ISO) provide examples for when commodities and software operate together to perform a function as a system.
(i) Equipment is a combination of parts, components, accessories, attachments, firmware, or software that operate together to perform a function of, as, or for an end-item or system. Equipment may be a subset of an end-item based on the characteristics of the equipment. Equipment that meets the definition of an end-item in paragraph (b) of this section is an end-item. Equipment that does not meet the definition of an end-item is a component, accessory, attachment, firmware, or software.
§ 120.41 Specially designed.
(a) Except for commodities or software described in paragraph (b) of this section, a commodity or software is specially designed if it:
(1) As a result of development, has properties peculiarly responsible for achieving or exceeding the controlled performance levels, characteristics, or functions described in the relevant U.S. Munitions List (USML) paragraph in § 121.1 of this subchapter; or
An example of a commodity that as a result of development has properties peculiarly responsible for achieving or exceeding the controlled performance levels, functions, or characteristics in a USML category would be a swimmer delivery vehicle specially designed to dock with a submarine to provide submerged transport for swimmers or divers from submarines.
(2) Is a part, component, accessory, attachment, or software for use in or with a defense article.
(b) For purposes of this subchapter, a part, component, accessory, attachment, or software is not specially designed if it:
(1) Is subject to the EAR pursuant to a commodity jurisdiction determination;
(2) Is, regardless of form or fit, a fastener (e.g., screws, bolts, nuts, nut plates, studs, inserts, clips, rivets, pins), washer, spacer, insulator, grommet, bushing, spring, wire, or solder;
(3) Has the same function, performance capabilities, and the same or equivalent form and fit as a commodity or software used in or with a commodity that:
(i) Is or was in production (i.e., not in development); and
(ii) Is not enumerated on the USML;
(4) Was or is being developed with knowledge that it is or would be for use in or with both defense articles enumerated on the USML and also commodities not on the USML; or
(5) Was or is being developed as a general purpose commodity or software, i.e., with no knowledge for use in or with a particular commodity (e.g., a F/A-18 or HMMWV) or type of commodity (e.g., an aircraft or machine tool).
For a defense article not to be specially designed on the basis of paragraph (b)(4) or (5) of this section, documents contemporaneous with its development, in their totality, must establish the elements of paragraph (b)(4) or (5). Such documents may include concept design information, marketing plans, declarations in patent applications, or contracts. Absent such documents, the commodity may not be excluded from being specially designed by either paragraph (b)(4) or (5).
For the purpose of paragraphs (b)(4) and (5) of this section, “knowledge” includes not only the positive knowledge a circumstance exists or is substantially certain to occur, but also an awareness of a high probability of its existence or future occurrence. Such awareness is inferred from evidence of the conscious disregard of facts known to a person and is also inferred from a person’s willful avoidance of facts.
§ 120.42 Form, fit, function, performance capability, equivalent, enumerated, and catch-all control.
(a) Form. The form of a commodity is defined by its configuration (including the geometrically measured configuration), material, and material properties that uniquely characterize it. For software, the form means the design, logic flow, and algorithms.
(b) Fit. The fit of a commodity is defined by its ability to physically interface or connect with or become an integral part of another commodity. For software, the fit is defined by its ability to interface or connect with a defense article.
(c) Function. The function of a commodity is the action or actions it is designed to perform. For software, the function means the action or actions the software performs directly related to a defense article or as a standalone application.
(d) Performance capability. Performance capability is the measure of a commodity’s effectiveness to perform a designated function in a given environment (e.g., measured in terms of speed, durability, reliability, pressure, accuracy, efficiency). For software, performance capability means the measure of the software’s effectiveness to perform a designated function.
(e) Equivalent. With respect to a commodity, equivalent means its form has been modified solely for fit purposes.
(f) Enumerated. Enumerated refers to any item designated on the U.S. Munitions List or item on the Commerce Control List and not in a catch-all control.
(g) Catch-all control. A catch-all control is one that does not refer to specific types of parts, components, accessories, or attachments, but rather controls unspecified parts, components, accessories, or attachments only if they were specially designed for an enumerated item.
(a) Development is related to all stages prior to serial production, such as design, design research, design analyses, design concepts, assembly and testing of prototypes, pilot production schemes, design data, process of transforming design data into a product, configuration design, integration design, and layouts. Development includes modification of an existing design.
(b)(1) Production means all production stages, such as product engineering, manufacture, integration, assembly (mounting), inspection, testing, and quality assurance. This includes serial production where commodities have passed production readiness testing (i.e., an approved, standardized design ready for large scale production) and have been or are being produced on an assembly line for multiple commodities using the approved, standardized design.
(2) Commodities in production that are subsequently subject to development activities, such as those that would result in enhancements or improvements only in the reliability or maintainability of the commodity (e.g., an increased mean time between failure), including those pertaining to quality improvements, cost reductions, or feature enhancements, remain in production. However, any new models or versions of such commodities developed from such efforts that change the basic performance or capability of the commodity are in development until and unless they enter into production.
(c) Design methodology includes the underlying engineering methods and design philosophy utilized (i.e., information that explains the rationale for a particular design decision, engineering feature, or performance requirement); engineering experience (e.g., lessons learned); and the rationale and associated databases (e.g., design allowables, factors of safety, component life predictions, failure analysis criteria) that establish the operational requirements (e.g., performance, mechanical, electrical, electronic, reliability and maintainability) of a defense article. (Final analytical results and the initial conditions and parameters may be provided.)
(d) Engineering analysis includes the analytical methods and tools used to design or evaluate a defense article’s performance against the operational requirements. Analytical methods and tools include the development and/or use of mockups, computer models and simulations, and test facilities. (Final analytical results and the initial conditions and parameters may be provided.)
(e) Manufacturing know-how includes information that provides detailed manufacturing processes and techniques needed to translate a detailed design into a qualified, finished defense article. (Information may be provided in a build-to-print package that is necessary in order to produce an acceptable defense article.)
(f) Build-to-print means that a foreign consignee can produce a defense article from engineering drawings without any technical assistance from a U.S. exporter. This transaction is based strictly on a hands-off approach since the foreign consignee is understood to have the inherent capability to produce the defense article and only lacks the necessary drawings. Supporting documentation (e.g., acceptance criteria, object code software for numerically controlled machines) may be released on an as-required basis (i.e., must have) such that the foreign consignee would not be able to produce an acceptable defense article without this additional supporting documentation. Build-to-print does not include the release of any information which discloses design methodology, engineering analysis, detailed process information or manufacturing know-how. Documentation which is not absolutely necessary to permit manufacture of an acceptable defense article (i.e. nice to have) is not considered within the boundaries of a build-to-print data package.
(g) Build/design-to-specification means that a foreign consignee can design and produce a defense article from requirement specifications without any technical assistance from the U.S. exporter. This transaction is based strictly on a hands-off approach since the foreign consignee is understood to have the inherent capability to both design and produce the defense article and only lacks the necessary requirement information.
(h) Basic research means a systemic study directed toward greater knowledge or understanding of the fundamental aspects of phenomena and observable facts without specific applications towards processes or products in mind. It does not include applied research.
(i) Applied research means a systemic study to gain knowledge or understanding necessary to determine the means by which a recognized and specific need may be met. It is a systematic application of knowledge toward the production of useful materials, devices, and systems or methods, including design, development, and improvement of prototypes and new processes to meet specific requirements.
§ 120.44 [Reserved]
§ 120.45 Maintenance levels.
(a) Organizational-level maintenance (or basic-level maintenance) is the first level of maintenance that can be performed on-equipment (directly on the defense article or support equipment) without specialized training. It consists of repairing, inspecting, servicing, calibrating, lubricating, or adjusting equipment, as well as replacing minor parts, components, assemblies, and line-replaceable spares or units. This includes modifications, enhancements, or upgrades that would result in improving only the reliability or maintainability of the commodity (e.g., an increased mean time between failure) and does not enhance the basic performance or capability of the defense article.
(b) Intermediate-level maintenance is second-level maintenance performed off-equipment (on removed parts, components, or equipment) at or by designated maintenance shops or centers, tenders, or field teams. It may consist of calibrating, repairing, testing, or replacing damaged or unserviceable parts, components, or assemblies. This includes modifications, enhancements, or upgrades that would result in improving only the reliability or maintainability of the commodity (e.g., an increased mean time between failure) and does not enhance the basic performance or capability of the defense article.
(c) Depot-level maintenance is third-level maintenance performed on- or off-equipment at or by a major repair facility, shipyard, or field team, each with necessary equipment and personnel of requisite technical skill. It consists of providing evaluation or repair beyond unit or organization capability. This maintenance consists of inspecting, testing, calibrating, repairing, overhauling, refurbishing, reconditioning, and one-to-one replacing of any defective parts, components, or assemblies. This includes modifications, enhancements, or upgrades that would result in improving only the reliability or maintainability of the commodity (e.g., an increased mean time between failure) and does not enhance the basic performance or capability of the defense article.
§§ 120.46-120.49 [Reserved]
§ 120.50 Export.
(a) Export, except as set forth in § 120.54 or § 126.16 or § 126.17 of this subchapter, means:
(1) An actual shipment or transmission out of the United States, including the sending or taking of a defense article out of the United States in any manner;
(2) Releasing or otherwise transferring technical data to a foreign person in the United States (a deemed export);
(3) Transferring registration, control, or ownership of any aircraft, vessel, or satellite subject to this subchapter by a U.S. person to a foreign person;
(4) Releasing or otherwise transferring a defense article to an embassy or to any of its agencies or subdivisions, such as a diplomatic mission or consulate, in the United States;
(5) Performing a defense service on behalf of, or for the benefit of, a foreign person, whether in the United States or abroad; or
(6) The release of previously encrypted technical data as described in § 120.56(a)(3) and (4).
(b) Any release in the United States of technical data to a foreign person is deemed to be an export to all countries in which the foreign person has held or holds citizenship or holds permanent residency.
§ 120.51 Reexport.
(a) Reexport, except as set forth in § 120.54 or § 126.16 or § 126.17 of this subchapter, means:
(1) An actual shipment or transmission of a defense article from one foreign country to another foreign country, including the sending or taking of a defense article to or from such countries in any manner;
(2) Releasing or otherwise transferring technical data to a foreign person who is a citizen or permanent resident of a country other than the foreign country where the release or transfer takes place (a deemed reexport); or
(3) Transferring registration, control, or ownership of any aircraft, vessel, or satellite subject to this subchapter between foreign persons.
(b) Any release outside the United States of technical data to a foreign person is deemed to be a reexport to all countries in which the foreign person has held or holds citizenship or holds permanent residency.
§ 120.52 Retransfer.
(a) Retransfer, except as set forth in § 120.54 or § 126.16 or § 126.17 of this subchapter, means:
(1) A change in end-use or end-user, or a temporary transfer to a third party, of a defense article within the same foreign country; or
(2) A release of technical data to a foreign person who is a citizen or permanent resident of the country where the release or transfer takes place.
(b) [Reserved]
§ 120.53 Temporary import.
(a) Temporary import, except as set forth in § 120.54, means bringing into the United States from a foreign country any defense article that is:
(1) To be returned to the country from which it was shipped or taken; or
(2) Any defense article that is in transit to another foreign destination.
(b) Temporary import includes withdrawal of a defense article from a customs bonded warehouse or foreign trade zone for the purpose of returning it to the country of origin or country from which it was shipped or for shipment to another foreign destination.
(c) Permanent imports are regulated by the Attorney General under the direction of the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms, and Explosives (see 27 CFR parts 447, 478, 479, and 555).
§ 120.54 Activities that are not exports, reexports, retransfers, or temporary imports.
(a) The following activities are not exports, reexports, retransfers, or temporary imports:
(1) Launching a spacecraft, launch vehicle, payload, or other item into space;
(2) Transmitting or otherwise transferring technical data to a U.S. person in the United States from a person in the United States;
(3) Transmitting or otherwise transferring within the same foreign country technical data between or among only U.S. persons, so long as the transmission or transfer does not result in a release to a foreign person or transfer to a person prohibited from receiving the technical data;
(4) Shipping, moving, or transferring defense articles between or among the United States as defined in § 120.60;
(5) Sending, taking, or storing technical data that is:
(i) Unclassified;
(ii) Secured using end-to-end encryption;
(iii) Secured using cryptographic modules (hardware or software) compliant with the Federal Information Processing Standards Publication 140-2 (FIPS 140-2) or its successors, supplemented by software implementation, cryptographic key management and other procedures and controls that are in accordance with guidance provided in current U.S. National Institute for Standards and Technology (NIST) publications, or by other cryptographic means that provide security strength that is at least comparable to the minimum 128 bits of security strength achieved by the Advanced Encryption Standard (AES-128); and
(iv) Not intentionally sent to a person in or stored in a country proscribed in § 126.1 of this subchapter or the Russian Federation; and
Data in-transit via the internet is not deemed to be stored.
(v) Not sent from a country proscribed in § 126.1 of this subchapter or the Russian Federation.
(b)(1) For purposes of this section, end-to-end encryption is defined as:
(i) The provision of cryptographic protection of data, such that the data is not in an unencrypted form, between an originator (or the originator’s in-country security boundary) and an intended recipient (or the recipient’s in-country security boundary); and
(ii) The means of decryption are not provided to any third party.
(2) The originator and the intended recipient may be the same person. The intended recipient must be the originator, a U.S. person in the United States, or a person otherwise authorized to receive the technical data, such as by a license or other approval pursuant to this subchapter.
(c) The ability to access technical data in encrypted form that satisfies the criteria set forth in paragraph (a)(5) of this section does not constitute the release or export of such technical data.
§ 120.55 Access information.
Access information is information that allows access to encrypted technical data subject to this subchapter in an unencrypted form. Examples include decryption keys, network access codes, and passwords.
§ 120.56 Release.
(a) Release. Technical data is released through:
(1) Visual or other inspection by foreign persons of a defense article that reveals technical data to a foreign person;
(2) Oral or written exchanges with foreign persons of technical data in the United States or abroad;
(3) The use of access information to cause or enable a foreign person, including yourself, to access, view, or possess unencrypted technical data; or
(4) The use of access information to cause technical data outside of the United States to be in unencrypted form.
(b) Provision of access information. Authorization for a release of technical data to a foreign person is required to provide access information to that foreign person, if that access information can cause or enable access, viewing, or possession of the unencrypted technical data.
§ 120.57 Authorization types.
(a) License means a document bearing the word “license” issued by the Deputy Assistant Secretary of State for Defense Trade Controls, or authorized designee, that permits the export, reexport, retransfer, temporary import, or brokering of a specific defense article or defense service controlled by this subchapter.
(b) Other approval means a document, other than a license, issued by the Deputy Assistant Secretary of State for Defense Trade Controls, or authorized designee, that approves an activity regulated by this subchapter (e.g., approvals for brokering activities or retransfer authorizations), or the use of an exemption to the license requirements as described in this subchapter.
(c) Exemption means a provision of this subchapter that authorizes the export, reexport, retransfer, temporary import, or brokering of a specific defense article or defense service without a license or other written authorization.
(d) Manufacturing license agreement means an agreement (e.g., contract), approved by the Directorate of Defense Trade Controls (DDTC), whereby a U.S. person grants a foreign person an authorization to manufacture defense articles abroad and which involves or contemplates:
(1) The export of technical data or defense articles or the performance of a defense service; or
(2) The use by the foreign person of technical data or defense articles previously exported by the U.S. person.
(e) Technical assistance agreement means an agreement (e.g., contract), approved by DDTC, for the performance of a defense service(s) or the disclosure of technical data, as opposed to an agreement granting a right or license to manufacture defense articles. Assembly of defense articles is included under this section, provided production rights or manufacturing know-how are not conveyed. Should such rights be transferred, paragraph (d) of this section is applicable.
(f) Distribution agreement means an agreement (e.g., a contract), approved by DDTC, to establish a warehouse or distribution point abroad for defense articles exported from the United States for subsequent distribution to entities in an approved sales territory.
§ 120.58 Subject to the Export Administration Regulations (EAR).
Items subject to the EAR are those items listed on the Commerce Control List in part 774 of the Export Administration Regulations (EAR) and all other items that meet the definition of that term in accordance with § 734.3 of the EAR. The EAR is found at 15 CFR parts 730 through 774.
§ 120.59 [Reserved]
§ 120.60 United States.
United States, when used in the geographical sense, includes the several states, the Commonwealth of Puerto Rico, the insular possessions of the United States, the District of Columbia, the Commonwealth of the Northern Mariana Islands, any territory or possession of the United States, and any territory or possession over which the United States exercises any powers of administration, legislation, and jurisdiction.
§ 120.61 Person.
Person means a natural person as well as a corporation, business association, partnership, society, trust, or any other entity, organization or group, including governmental entities. If a provision in this subchapter does not refer exclusively to a foreign person or U.S. person, then it refers to both.
§ 120.62 U.S. person.
U.S. person means a person who is a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is a protected individual as defined by 8 U.S.C. 1324b(a)(3). It also means any corporation, business association, partnership, society, trust, or any other entity, organization, or group that is incorporated to do business in the United States. It also includes any governmental (Federal, state, or local) entity. It does not include any foreign person as defined in § 120.63.
§ 120.63 Foreign person.
Foreign person means any natural person who is not a lawful permanent resident as defined by 8 U.S.C. 1101(a)(20) or who is not a protected individual as defined by 8 U.S.C. 1324b(a)(3). It also means any foreign corporation, business association, partnership, trust, society, or any other entity or group that is not incorporated or organized to do business in the United States, as well as international organizations, foreign governments, and any agency or subdivision of foreign governments (e.g., diplomatic missions).
§ 120.64 Regular employee.
(a) Regular employee means:
(1) An individual permanently and directly employed by the company; or
(2) An individual in a long term contractual relationship with the company where the individual works at the company’s facilities, works under the company’s direction and control, works full time and exclusively for the company, and executes nondisclosure certifications for the company, and where the staffing agency that has seconded the individual has no role in the work the individual performs (other than providing that individual for that work) and the staffing agency would not have access to any controlled technology (other than where specifically authorized by a license).
(b) [Reserved]
§ 120.65 Foreign ownership and foreign control.
(a) Foreign ownership means more than 50 percent of the outstanding voting securities of the firm are owned by one or more foreign persons.
(b) Foreign control means one or more foreign persons have the authority or ability to establish or direct the general policies or day-to-day operations of the firm. Foreign control is presumed to exist where foreign persons own 25 percent or more of the outstanding voting securities unless one U.S. person controls an equal or larger percentage.
§ 120.66 Affiliate.
(a) Affiliate (of a registrant) means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such registrant.
(b) For purposes of this section, “control” means having the authority or ability to establish or direct the general policies or day-to-day operations of the firm. Control is rebuttably presumed to exist where there is ownership of 25 percent or more of the outstanding voting securities if no other person controls an equal or larger percentage.
§ 120.67 Empowered official.
(a) Empowered official means a U.S. person who:
(1) Is directly employed by the applicant or a subsidiary in a position having authority for policy or management within the applicant organization; and
(2) Is legally empowered in writing by the applicant to sign license applications or other requests for approval on behalf of the applicant; and
(3) Understands the provisions and requirements of the various export control statutes and regulations, and the criminal liability, civil liability, and administrative penalties for violating the Arms Export Control Act and the International Traffic in Arms Regulations in this subchapter; and
(4) Has the independent authority to:
(i) Inquire into any aspect of a proposed export, temporary import, or brokering activity by the applicant;
(ii) Verify the legality of the transaction and the accuracy of the information to be submitted; and
(iii) Refuse to sign any license application or other request for approval without prejudice or other adverse recourse.
(b) For the purposes of a broker who is a foreign person, the empowered official may be a foreign person who otherwise meets the criteria for an empowered official in paragraph (a) of this section.
§ 120.68 Party to the export.
(a) Party to the export means:
(1) The chief executive officer, president, vice-presidents, other senior officers and officials (e.g., comptroller, treasurer, general counsel), and any member of the board of directors of the applicant;
(2) The freight forwarders or designated exporting agent of the applicant; and
(3) Any consignee or end-user of any item to be exported.
(b) [Reserved]
§ 120.69 Port Directors.
Port Directors means the U.S. Customs and Border Protection Port Directors at the U.S. Customs and Border Protection Ports of Entry (other than the port of New York, New York where their title is the Area Directors).
PART 121 – THE UNITED STATES MUNITIONS LIST
Enumeration of Articles
§ 121.0 United States Munitions List description and definitions.
(a) For a description of the U.S. Munitions List and its designations, including the use of asterisks and the parenthetical “(MT)”, see § 120.10 of this subchapter.
(b) As used in this part, EAR means Export Administration Regulations in 15 CFR parts 730 through 774.
§ 121.1 The United States Munitions List.
(a)-(b) [Reserved]
* (a) Firearms using caseless ammunition.
* (b) Fully automatic firearms to .50 caliber (12.7 mm) inclusive.
* (c) Firearms specially designed to integrate fire control, automatic tracking, or automatic firing (e.g., Precision Guided Firearms).
Integration does not include only attaching to the firearm or rail.
* (d) Fully automatic shotguns regardless of gauge.
* (e) Silencers, mufflers, and sound suppressors.
(f) [Reserved]
(g) Barrels, receivers (frames), bolts, bolt carriers, slides, or sears specially designed for the articles in paragraphs (a), (b), and (d) of this category.
(h) Parts, components, accessories, and attachments, as follows:
(1) Drum and other magazines for firearms to .50 caliber (12.7 mm) inclusive with a capacity greater than 50 rounds, regardless of jurisdiction of the firearm, and specially designed parts and components therefor;
(2) Parts and components specially designed for conversion of a semi-automatic firearm to a fully automatic firearm;
(3) Parts and components specially designed for defense articles described in paragraphs (c) and (e) of this category; or
(4) Accessories or attachments specially designed to automatically stabilize aim (other than gun rests) or for automatic targeting, and specially designed parts and components therefor.
(i) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in this category and classified technical data directly related to items controlled in ECCNs 0A501, 0B501, 0D501, and 0E501 and defense services using the classified technical data. (See § 125.4 of this subchapter for exemptions.)
(j)-(w) [Reserved]
(x) Commodities, software, and technology subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).
The following interpretations explain and amplify the terms used in this category:
(1) A firearm is a weapon not over .50 caliber (12.7 mm) which is designed to expel a projectile by the deflagration of propellant;
(2) A fully automatic firearm or shotgun is any firearm or shotgun that shoots, is designed to shoot, or can readily be restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger; and
(3) Caseless ammunition is firearm ammunition without a cartridge case that holds the primer, propellant, and projectile together as a unit.
(a) Guns and armament greater than .50 caliber (12.7 mm), as follows:
* (1) Guns, howitzers, artillery, and cannons;
* (2) Mortars;
* (3) Recoilless rifles;
* (4) Grenade launchers; or
(5) Developmental guns and armament greater than .50 caliber (12.7 mm) funded by the Department of Defense and specially designed parts and components therefor.
This paragraph does not control guns and armament greater than .50 caliber (12.7 mm):
(a) in production;
(b) determined to be subject to the EAR via a commodity jurisdiction determination; or
(c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 to pargraph (a)(5) does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This provision is applicable to those contracts or other funding authorizations that are dated January 23, 2021, or later.
This paragraph does not include: Non-automatic and non-semi-automatic rifles, carbines, and pistols between .50 (12.7 mm) and .72 caliber (18.288 mm) that are controlled on the CCL under ECCN 0A501; shotguns controlled on the CCL under ECCN 0A502; black powder guns and armaments manufactured between 1890 and 1919 controlled on the CCL under ECCN 0A602; or black powder guns and armaments manufactured earlier than 1890.
Guns and armament when integrated into their carrier (e.g., surface vessels, ground vehicles, or aircraft) are controlled in the category associated with the carrier. Self-propelled guns and armament are controlled in USML Category VII. Towed guns and armament and stand-alone guns and armament are controlled under this category.
(b) Flamethrowers with an effective range greater than or equal to 20 meters.
(c) [Reserved]
* (d) Kinetic energy weapon systems specially designed for destruction or rendering mission-abort of a target.
Kinetic energy weapons systems include but are not limited to launch systems and subsystems capable of accelerating masses larger than 0.1g to velocities in excess of 1.6 km/s, in single or rapid fire modes, using methods such as: Electromagnetic, electrothermal, plasma, light gas, or chemical. This does not include launch systems and subsystems used for research and testing facilities subject to the EAR, which are controlled on the CCL under ECCN 2B232.
(e) Signature reduction devices specially designed for the guns and armament controlled in paragraphs (a), (b), and (d) of this category (e.g., muzzle flash suppression devices).
(f)-(i) [Reserved]
(j) Parts, components, accessories, and attachments, as follows:
(1) Gun barrels, rails, tubes, and receivers specially designed for the weapons controlled in paragraphs (a) and (d) of this category;
(2) Sights specially designed to orient indirect fire weapons;
(3) Breech blocks for the weapons controlled in paragraphs (a) and (d) of this category;
(4) Firing mechanisms for the weapons controlled in paragraphs (a) and (d) of this category and specially designed parts and components therefor;
(5) Systems for firing superposed or stacked ammunition and specially designed parts and components therefor;
(6) Servo-electronic and hydraulic elevation adjustment mechanisms;
(7) Muzzle brakes;
(8) Bore evacuators;
(9) Independent ammunition handling systems for the guns and armament controlled in paragraphs (a), (b), and (d) of this category;
(10) Components for independently powered ammunition handling systems and platform interface, as follows:
(i) Mounts;
(ii) Carriages;
(iii) Gun pallets;
(iv) Hydro-pneumatic equilibration cylinders; or
(v) Hydro-pneumatic systems capable of scavenging recoil energy to power howitzer functions;
For weapons mounts specially designed for surface vessels and special naval equipment, see Category VI. For weapons mounts specially designed for ground vehicles, see Category VII.
(11) Ammunition containers/drums, ammunition chutes, ammunition conveyor elements, ammunition feeder systems, and ammunition container/drum entrance and exit units, specially designed for the guns and armament controlled in paragraphs (a), (b), and (d) of this category;
(12) Systems and equipment for the guns and armament controlled in paragraphs (a) and (d) of this category for use in programming ammunition, and specially designed parts and components therefor;
(13) Aircraft/gun interface units to support gun systems with a designed rate of fire greater than 100 rounds per minute and specially designed parts and components therefor;
(14) Recoil systems specially designed to mitigate the shock associated with the firing process of guns integrated into air platforms and specially designed parts and components therefor;
(15) Prime power generation, energy storage, thermal management, conditioning, switching, and fuel-handling equipment, and the electrical interfaces between the gun power supply and other turret electric drive components specially designed for kinetic weapons controlled in paragraph (d) of this category;
(16) Kinetic energy weapon target acquisition, tracking fire control, and damage assessment systems and specially designed parts and components therefor; or
* (17) Any part, component, accessory, attachment, equipment, or system that:
(i) Is classified;
(ii) Contains classified software; or
(iii) Is being developed using classified information.
(k) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraphs (a), (b), (d), (e), and (j) of this category and classified technical data directly related to items controlled in ECCNs 0A602, 0B602, 0D602, and 0E602 and defense services using the classified technical data. (See § 125.4 of this subchapter for exemptions.)
(l)-(w) [Reserved]
(x) Commodities, software, and technology subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).
(a) Ammunition, as follows:
* (1) Ammunition that incorporates a projectile controlled in paragraph (d)(1) or (3) of this category;
* (2) Ammunition preassembled into links or belts;
* (3) Shotgun ammunition that incorporates a projectile controlled in paragraph (d)(2) of this category;
* (4) Caseless ammunition manufactured with smokeless powder;
Caseless ammunition is ammunition without a cartridge case that holds the primer, propellant, and projectile together as a unit.
* (5) Ammunition, except shotgun ammunition, based on non-metallic cases, or non-metallic cases that have only a metallic base, which result in a total cartridge mass 80% or less than the mass of a brass- or steel-cased cartridge that provides comparable ballistic performance;
* (6) Ammunition employing pyrotechnic material in the projectile base or any ammunition employing a projectile that incorporates tracer materials of any type having peak radiance above 710 nm and designed to be observed primarily with night vision optical systems;
* (7) Ammunition for fully automatic firearms that fire superposed or stacked projectiles or for guns that fire superposed or stacked projectiles;
* (8) Electromagnetic armament projectiles or billets for weapons with a design muzzle energy exceeding 5 MJ;
* (9) Ammunition, not specified above, for the guns and armaments controlled in Category II; or
(10) Developmental ammunition funded by the Department of Defense and specially designed parts and components therefor.
This paragraph does not control ammunition:
(a) in production;
(b) determined to be subject to the EAR via a commodity jurisdiction determination; or
(c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This provision is applicable to those contracts or other funding authorizations that are dated January 23, 2021, or later.
(b) Ammunition/ordnance handling equipment specially designed for the articles controlled in this category, as follows:
(1) Belting, linking, and de-linking equipment; or
(2) Fuze setting devices.
(c) [Reserved]
(d) Parts and components for the articles in this category, as follows:
(1) Projectiles that use pyrotechnic tracer materials that incorporate any material having peak radiance above 710 nm or are incendiary or explosive;
(2) Shotgun projectiles that are flechettes, incendiary, tracer, or explosive;
This paragraph does not include explosive projectiles specially designed to produce noise for scaring birds or other pests (e.g., bird bombs, whistlers, crackers).
(3) Projectiles of any caliber produced from depleted uranium;
(4) Projectiles not specified above, guided or unguided, for the items controlled in USML Category II, and specially designed parts and components therefor (e.g., fuzes, rotating bands, cases, liners, fins, boosters);
(5) Canisters or sub-munitions (e.g., bomblets or minelets), and specially designed parts and components therefor, for the guns or armament controlled in USML Category II;
(6) Projectiles that employ tips (e.g., M855A1 Enhanced Performance Round (EPR)) or cores regardless of caliber, produced from one or a combination of the following: Tungsten, steel, or beryllium copper alloy;
(7) Cartridge cases, powder bags, or combustible cases specially designed for the items controlled in USML Category II;
(8) Non-metallic cases, including cases that have only a metallic base, for the ammunition controlled in paragraph (a)(5) of this category;
(9) Cartridge links and belts for fully automatic firearms and guns controlled in USML Categories I or II;
(10) Primers other than Boxer, Berdan, or shotshell types;
This paragraph does not control caps or primers of any type in use prior to 1890.
(11) Safing, arming, and fuzing components (to include target detection and proximity sensing devices) for the ammunition in this category and specially designed parts therefor;
(12) Guidance and control components for the ammunition in this category and specially designed parts therefor;
(13) Terminal seeker assemblies for the ammunition in this category and specially designed parts and components therefor;
(14) Illuminating flares or target practice projectiles for the ammunition controlled in paragraph (a)(9) of this category; or
* (15) Any part, component, accessory, attachment, equipment, or system that:
(i) Is classified;
(ii) Contains classified software; or
(iii) Is being developed using classified information.
(e) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles enumerated in paragraphs (a), (b), and (d) of this category and classified technical data directly related to items controlled in ECCNs 0A505, 0B505, 0D505, and 0E505 and defense services using the classified technical data. (See § 125.4 of this subchapter for exemptions.)
(f)-(w) [Reserved]
(x) Commodities, software, and technology subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).
This category does not control ammunition crimped without a projectile (blank star) and dummy ammunition with a pierced powder chamber.
This category does not control cartridge and shell casings that, prior to export, have been rendered useless beyond the possibility of restoration for use as a cartridge or shell casing by means of heating, flame treatment, mangling, crushing, cutting, or popping.
Grenades containing non-lethal or less lethal projectiles are under the jurisdiction of the Department of Commerce.
* (a) Rockets, space launch vehicles (SLVs), missiles, bombs, torpedoes, depth charges, mines, and grenades, as follows:
(1) Rockets, SLVs, and missiles capable of delivering at least a 500-kg payload to a range of at least 300 km (MT);
(2) Rockets, SLVs, and missiles capable of delivering less than a 500-kg payload to a range of at least 300 km (MT);
(3) Man-portable air defense systems (MANPADS);
(4) Anti-tank missiles and rockets;
(5) Rockets, SLVs, and missiles not meeting the criteria of paragraphs (a)(1) through (a)(4) of this category;
(6) Bombs;
(7) Torpedoes;
(8) Depth charges;
(9) Anti-personnel, anti-vehicle, or anti-armor land mines (e.g., area denial devices);
(10) Anti-helicopter mines;
(11) Naval mines; or
(12) Fragmentation and high explosive hand grenades.
“Range” is the maximum distance that the specified rocket system is capable of traveling in the mode of stable flight as measured by the projection of its trajectory over the surface of the Earth. The maximum capability based on the design characteristics of the system, when fully loaded with fuel or propellant, will be taken into consideration in determining range. The range for rocket systems will be determined independently of any external factors such as operational restrictions, limitations imposed by telemetry, data links, or other external constraints. For rocket systems, the range will be determined using the trajectory that maximizes range, assuming International Civil Aviation Organization (ICAO) standard atmosphere with zero wind.
“Payload” is the total mass that can be carried or delivered by the specified rocket, SLV, or missile that is not used to maintain flight.
This paragraph does not control model and high power rockets (as defined in National Fire Protection Association Code 1122) and kits thereof made of paper, wood, fiberglass, or plastic containing no substantial metal parts and designed to be flown with hobby rocket motors that are certified for consumer use. Such rockets must not contain active controls (e.g., RF, GPS).
”Mine” means a munition placed under, on, or near the ground or other surface area and designed to be exploded by the presence, proximity, or contact of a person or vehicle.
* (b) Launchers for rockets, SLVs, and missiles, as follows:
(1) Fixed launch sites and mobile launcher mechanisms for any system enumerated in paragraphs (a)(1) and (a)(2) of this category (MT); or
(2) Fixed launch sites and mobile launcher mechanisms for any system enumerated in paragraphs (a)(3) through (a)(5) of this category (e.g., launch tables, TOW missile, MANPADS).
For controls on non-SLV launcher mechanisms for use on aircraft, see USML Category VIII(h).
For controls on launcher mechanisms that are integrated onto a vessel or ground vehicle, see USML Categories VI and VII, respectively.
This paragraph does not control parts and accessories (e.g., igniters, launch stands) specially designed for consumer use with model and high power rockets (as defined in National Fire Protection Association Code 1122) and kits thereof made of paper, wood, fiberglass, or plastic containing no substantial metal parts and designed to be flown with hobby rocket motors that are certified for consumer use.
(c) Apparatus and devices specially designed for the handling, control, activation, monitoring, detection, protection, discharge, or detonation of the articles enumerated in paragraphs (a) and (b) of this category (MT for those systems enumerated in paragraphs (a)(1), (a)(2), and (b)(1) of this category).
This paragraph includes specialized handling equipment (transporters, cranes, and lifts) specially designed to handle articles enumerated in paragraphs (a) and (b) of this category for preparation and launch from fixed and mobile sites. The equipment in this paragraph also includes specially designed robots, robot controllers, and robot end-effectors, and liquid propellant tanks specially designed for the storage or handling of the propellants controlled in USML Category V, CCL ECCNs 1C011, 1C111, and 1C608, or other liquid propellants used in the systems enumerated in paragraphs (a)(1), (a)(2), or (a)(5) of this category.
Aircraft Missile Protection Systems (AMPS) are controlled in USML Category XI.
* (d) Rocket, SLV, and missile power plants, as follows:
(1) Except as enumerated in paragraph (d)(2) or (d)(3) of this category, individual rocket stages for the articles enumerated in paragraph (a)(1), (a)(2), or (a)(5) of this category (MT for those stages usable in systems enumerated in paragraphs (a)(1) and (a)(2) of this category);
(2) Solid propellant rocket motors, hybrid or gel rocket motors, or liquid propellant rocket engines having a total impulse capacity equal to or greater than 1.1 × 10
(3) Solid propellant rocket motors, hybrid or gel rocket motors, or liquid propellant rocket engines having a total impulse capacity equal to or greater than 8.41 × 10
(4) Combined cycle, pulsejet, ramjet, or scramjet engines (MT);
(5) Air-breathing engines that operate above Mach 4 not enumerated in paragraph (d)(4) of this category;
(6) Pressure gain combustion-based propulsion systems not enumerated in paragraphs (d)(4) and (d)(5) of this category; or
(7) Rocket, SLV, and missile engines and motors, not otherwise enumerated in paragraphs (d)(1) through (d)(6) of this category or USML Category XIX.
This paragraph does not control model and high power rocket motors, containing no more than 5 pounds of propellant, that are certified for U.S. consumer use as described in National Fire Protection Association Code 1125.
This paragraph does not control thrusters for spacecraft.
(e)-(f) [Reserved]
* (g) Non-nuclear warheads for rockets, bombs, and missiles (e.g., explosive, kinetic, EMP, thermobaric, shape charge, and fuel air explosive (FAE)).
(h) Systems, subsystems, parts, components, accessories, attachments, or associated equipment, as follows:
(1) Flight control and guidance systems (including guidance sets) specially designed for articles enumerated in paragraph (a) of this category (MT for those articles enumerated in paragraphs (a)(1) and (a)(2) of this category);
A guidance set integrates the process of measuring and computing a vehicle’s position and velocity (i.e., navigation) with that of computing and sending commands to the vehicle’s flight control systems to correct the trajectory.
(2) Seeker systems specially designed for articles enumerated in paragraph (a) of this category (e.g., radiofrequency, infrared) (MT for articles enumerated in paragraphs (a)(1) and (a)(2) of this category);
(3) Kinetic kill vehicles and specially designed parts and components therefor;
(4) Missile or rocket thrust vector control systems (MT for those thrust vector control systems usable in articles enumerated in paragraph (a)(1) of this category);
(5) MANPADS grip stocks and specially designed parts and components therefor;
(6) Rocket or missile nozzles and nozzle throats, and specially designed parts and components therefor (MT for those nozzles and nozzle throats usable in systems enumerated in paragraphs (a)(1) and (a)(2) of this category);
(7) Rocket or missile nose tips, nose fairings, or aerospikes, and specially designed parts and components therefor (MT for those articles enumerated in paragraphs (a)(1) and (a)(2) of this category);
(8) Re-entry vehicle or warhead heat shields (MT for those re-entry vehicles and heat shields usable in systems enumerated in paragraph (a)(1) of this category);
(9) Missile and rocket safing, arming, fuzing, and firing (SAFF) components (to include target detection and proximity sensing devices), and specially designed parts therefor (MT for those SAFF components usable in systems enumerated in paragraph (a)(1) of this category);
(10) Self-destruct systems specially designed for articles enumerated in paragraph (a) of this category (MT for those articles enumerated in paragraphs (a)(1) and (a)(2) of this category);
(11) Separation mechanisms, staging mechanisms, and interstages useable for articles enumerated in paragraph (a) of this category, and specially designed parts and components therefor (MT for those separation mechanisms, staging mechanisms, and interstages usable in systems enumerated in paragraph (a)(1) of this category);
(12) Post-boost vehicles (PBV) (MT);
(13) Engine or motor mounts specially designed for articles enumerated in paragraphs (a) and (b) of this category (MT for those articles enumerated in paragraphs (a)(1), (a)(2), and (b)(1) of this category);
(14) Combustion chambers specially designed for articles enumerated in paragraphs (a) and (d) of this category and specially designed parts and components therefor (MT for those articles enumerated in paragraphs (a)(1), (a)(2), (b)(1), and (d)(1) through (d)(5) of this category);
(15) Injectors specially designed for articles controlled in this category (MT for those injectors specially designed which are usable in systems enumerated in paragraph (a)(1) of this category);
(16) Solid rocket motor or liquid engine igniters;
(17) Re-entry vehicles and specially designed parts and components therefor not elsewhere specified in this category (MT);
This paragraph does not control spacecraft. For controls on spacecraft, see USML Category XV and, if not described therein, then CCL ECCN 9A515.
(18) Specially designed parts and components for articles controlled in paragraph (g) not elsewhere specified in this category;
(19) Penetration aids and specially designed parts and components therefor (e.g., physical or electronic countermeasure suites, re-entry vehicle replicas or decoys, or submunitions);
(20) Rocket motor cases and specially designed parts and components therefor (e.g., flanges, flange seals, end domes) (MT for those rocket motor cases usable in systems enumerated in paragraphs (a)(1) and (a)(2) of this category and for specially designed parts and components for hybrid rocket motors enumerated in paragraphs (d)(2) and (d)(3) of this category);
(21) Solid rocket motor liners and rocket motor insulation (MT for those solid rocket motor liners usable in systems enumerated in paragraph (a)(1) of this category or specially designed for systems enumerated in paragraph (a)(2) of this category; and rocket motor insulation usable in systems enumerated in paragraphs (a)(1) and (a)(2) of this category);
(22) Radomes, sensor windows, and antenna windows specially designed for articles enumerated in paragraph (a) of this category (MT for those radomes usable in systems enumerated in paragraph (a)(1) of this category and for any radomes, sensor windows, or antenna windows manufactured as composite structures or laminates specially designed for use in the systems and components enumerated in paragraph (a)(1), (a)(2), (d)(1), (h)(8), (h)(9), (h)(17), or (h)(25) of this category);
(23) Rocket or missile payload fairings;
(24) Rocket or missile launch canisters (MT for those rocket or missile launch canisters designed or modified for systems enumerated in paragraphs (a)(1) and (a)(2) of this category);
(25) Fuzes specially designed for articles enumerated in paragraph (a) of this category (e.g., proximity, contact, electronic, dispenser proximity, airburst, variable time delay, or multi-option) (MT for those fuzes usable in systems enumerated in paragraph (a)(1) of this category);
(26) Rocket or missile liquid propellant tanks (MT for those rocket or missile liquid propellant tanks usable in systems enumerated in paragraph (a)(1) of this category);
(27) Rocket or missile altimeters specially designed for use in articles enumerated in paragraph (a)(1) of this category (MT);
(28) Pneumatic, hydraulic, mechanical, electro-optical, or electromechanical flight control systems (including fly-by-wire systems) and attitude control equipment specially designed for use in the rockets or missiles enumerated in paragraph (a)(1) of this category (MT for these systems which have been designed or modified for those enumerated in paragraph (a)(1) of this category);
(29) Umbilical and interstage electrical connectors specially designed for use in the rockets or missiles enumerated in paragraph (a)(1) or (a)(2) of this category (MT); or
This paragraph also includes electrical connectors installed between the systems specified in paragraph (a)(1) or (a)(2) of this category and their payload.
* (30) Any part, component, accessory, attachment, equipment, or system that (MT for those articles designated as such):
(i) Is classified;
(ii) Contains classified software directly related to defense articles in this subchapter or 600 series items subject to the EAR; or
(iii) Is being developed using classified information.
(i) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraphs (a) through (h) of this category and classified technical data directly related to items controlled in ECCNs 0A604, 0B604, 0D604, 9A604, 9B604, or 9D604 and defense services using the classified technical data. Defense services include the furnishing of assistance (including training) to a foreign person in the integration of a satellite or spacecraft to a launch vehicle, including both planning and onsite support, regardless of the jurisdiction, ownership, or origin of the satellite or spacecraft, or whether technical data is used. It also includes the furnishing of assistance (including training) to a foreign person in the launch failure analysis of a launch vehicle, regardless of the jurisdiction, ownership, or origin of the launch vehicle, or whether technical data is used. (See § 125.4 of this subchapter for exemptions, and § 124.15 of this subchapter for special export controls for spacecraft and spacecraft launches.) (MT for technical data and defense services related to articles designated as such.)
(j)-(w) [Reserved]
(x) Commodities, software, and technical data subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technical data subject to the EAR (see § 123.1(b) of this subchapter).
If a Missile Technology Control Regime Category I item is included in a system, that system will also be considered as a Category I item, except when the incorporated item cannot be separated, removed, or duplicated.
* (a) Explosives, and mixtures thereof, as follows:
(1) ADNBF (aminodinitrobenzofuroxan or 7-Amino 4,6-dinitrobenzofurazane-1-oxide) (CAS 97096-78-1);
(2) BNCP (cis-bis(5-nitrotetrazolato) tetra amine-cobalt (III) perchlorate) (CAS 117412-28-9);
(3) CL-14 (diaminodinitrobenzofuroxan or 5,7-diamino-4,6-dinitrobenzofurazane-1-oxide) (CAS 117907-74-1);
(4) CL-20 (HNIW or Hexanitrohexaazaisowurtzitane) (CAS 135285-90-4); clathrates of CL-20 (MT for CL-20);
(5) CP (2-(5-cyanotetrazolato) penta aminecobalt (III) perchlorate) (CAS 70247-32-4);
(6) DADE (1,1-diamino-2,2-dinitroethylene, FOX-7) (CAS 145250-81-3);
(7) DATB (Diaminotrinitrobenzene) (CAS 1630-08-6);
(8) DDFP (1,4-dinitrodifurazanopiperazine);
(9) DDPO (2,6-diamino-3,5-dinitropyrazine-1-oxide, PZO) (CAS 194486-77-6);
(10) DIPAM (3,3′-Diamino-2,2′,4,4′,6,6′-hexanitrobiphenyl or dipicramide) (CAS 17215-44-0);
(11) DNAN (2,4-Dinitroanisole) (CAS 119-27-7);
(12) DNGU (DINGU or dinitroglycoluril) (CAS 55510-04-8);
(13) Furazans, as follows:
(i) DAAOF (DAAF, DAAFox, or diaminoazoxyfurazan);
(ii) DAAzF (diaminoazofurazan) (CAS 78644-90-3);
(iii) ANF (Furazanamine, 4-nitro- or 3-Amino-4-nitrofurazan; or 4-Nitro-1,2,5-oxadiazol-3-amine; or 4-Nitro-3-furazanamine; CAS 66328-69-6); or
(iv) ANAzF (Aminonitroazofurazan or 1,2,5-Oxadiazol-3-amine, 4-[2-(4-nitro-1,2,5-oxadiazol-3-yl) diazenyl]; or 1,2,5-Oxadiazol-3-amine, 4-[(4-nitro-1,2,5-oxadiazol-3-yl)azo]- (9CI); or Furazanamine, 4-[(nitrofurananyl)azo]-; or 4-[(4-Nitro-1,2,5-oxadiazol-3-yl)azo]-1,2,5-oxadiazol-3-amine) (CAS 155438-11-2);
(14) GUDN (Guanylurea dinitramide) FOX-12 (CAS 217464-38-5);
(15) HMX and derivatives, as follows:
(i) HMX (Cyclotetramethylenetetranitramine; octahydro-1,3,5,7-tetranitro-1,3,5,7-tetrazine; 1,3,5,7-tetranitro-1,3,5,7-tetraza-cyclooctane; octogen, octogene) (CAS 2691-41-0) (MT);
(ii) Difluoroaminated analogs of HMX; or
(iii) K-55 (2,4,6,8-tetranitro-2,4,6,8-tetraazabicyclo [3,3,0]-octanone-3, tetranitrosemiglycouril, or keto-bicyclic HMX) (CAS 130256-72-3);
(16) HNAD (hexanitroadamantane) (CAS 143850-71-9);
(17) HNS (hexanitrostilbene) (CAS 20062-22-0);
(18) Imidazoles, as follows:
(i) BNNII (Octohydro-2,5-bis(nitroimino) imidazo [4,5-d]imidazole);
(ii) DNI (2,4-dinitroimidazole) (CAS 5213-49-0);
(iii) FDIA (1-fluoro-2,4-dinitroimidazole);
(iv) NTDNIA (N-(2-nitrotriazolo)-2,4-dinitro-imidazole); or
(v) PTIA (1-picryl-2,4,5-trinitroimidazole);
(19) NTNMH (1-(2-nitrotriazolo)-2-dinitromethylene hydrazine);
(20) NTO (ONTA or 3-nitro-1,2,4-triazol-5-one) (CAS 932-64-9);
(21) Polynitrocubanes with more than four nitro groups;
(22) PYX (2,6-Bis(picrylamino)-3,5-dinitropyridine) (CAS 38082-89-2);
(23) RDX and derivatives, as follows:
(i) RDX (cyclotrimethylenetrinitramine), cyclonite, T4, hexahydro-1,3,5-trinitro-1,3,5-triazine, 1,3,5-trinitro-1,3,5-triaza-cyclohexane, hexogen, or hexogene) (CAS 121-82-4) (MT);
(ii) Keto-RDX (K-6 or 2,4,6-trinitro-2,4,6-triazacyclohexanone) (CAS 115029-35-1); or
(iii) Difluoraminated derivative of RDX; 1,3-Dinitro-5,5-bis(difluoramino)1,3-diazahexane (CAS No. 193021-34-0);
(24) TAGN (Triaminoguanidinenitrate) (CAS 4000-16-2);
(25) TATB (Triaminotrinitrobenzene) (CAS 3058-38-6);
(26) TEDDZ (3,3,7,7-tetrakis(difluoroamine) octahydro-1,5-dinitro-1,5-diazocine;
(27) Tetrazines, as follows:
(i) BTAT (Bis(2,2,2-trinitroethyl)-3,6-diaminotetrazine); or
(ii) LAX-112 (3,6-diamino-1,2,4,5-tetrazine-1,4-dioxide);
(28) Tetrazoles, as follows:
(i) NTAT (nitrotriazolaminotetrazole); or
(ii) NTNT (1-N-(2-nitrotriazolo)-4-nitrotetrazole);
(29) Tetryl (trinitrophenylmethylnitramine) (CAS 479-45-8);
(30) TEX (4,10-Dinitro-2,6,8,12-tetraoxa-4,10-diazaisowurtzitane);
(31) TNAD (1,4,5,8-tetranitro-1,4,5,8-tetraazadecalin) (CAS 135877-16-6);
(32) TNAZ (1,3,3-trinitroazetidine) (CAS 97645-24-4);
(33) TNGU (SORGUYL or tetranitroglycoluril) (CAS 55510-03-7);
(34) TNP (1,4,5,8-tetranitro-pyridazino [4,5-d] pyridazine) (CAS 229176-04-9);
(35) Triazines, as follows:
(i) DNAM (2-oxy-4,6-dinitroamino-s-triazine) (CAS 19899-80-0); or
(ii) NNHT (2-nitroimino-5-nitro-hexahydro-1,3,5 triazine) (CAS 130400-13-4);
(36) Triazoles, as follows:
(i) 5-azido-2-nitrotriazole;
(ii) ADHTDN (4-amino-3,5-dihydrazino-1,2,4-triazole dinitramide) (CAS 1614-08-0);
(iii) ADNT (1-amino-3,5-dinitro-1,2,4-triazole);
(iv) BDNTA (Bis(dinitrotriazole)amine);
(v) DBT (3,3′-dinitro-5,5-bi-1,2,4-triazole) (CAS 30003-46-4);
(vi) DNBT (dinitrobistriazole) (CAS 70890-46-9);
(vii) NTDNT (1-N-(2-nitrotriazolo) 3,5-dinitro-triazole);
(viii) PDNT (1-picryl-3,5-dinitrotriazole); or
(ix) TACOT (tetranitrobenzotriazolobenzotriazole) (CAS 25243-36-1);
(37) Energetic ionic materials melting between 343 K (70 °C) and 373 K (100 °C) and with detonation velocity exceeding 6800 m/s or detonation pressure exceeding 18 GPa (180 kbar); or
(38) Explosives, not otherwise enumerated in this paragraph or on the CCL in ECCN 1C608, with a detonation velocity exceeding 8700 m/s at maximum density or a detonation pressure exceeding 34 Gpa (340 kbar).
* (b) Propellants, as follows (MT for composite and composite modified double-base propellants):
(1) Any solid propellant with a theoretical specific impulse (see paragraph (k)(4) of this category) greater than:
(i) 240 seconds for non-metallized, non-halogenated propellant;
(ii) 250 seconds for non-metallized, halogenated propellant; or
(iii) 260 seconds for metallized propellant;
(2) Propellants having a force constant of more than 1,200 kJ/Kg;
(3) Propellants that can sustain a steady-state burning rate more than 38 mm/s under standard conditions (as measured in the form of an inhibited single strand) of 6.89 Mpa (68.9 bar) pressure and 294K (21 °C);
(4) Elastomer-modified cast double-based propellants with extensibility at maximum stress greater than 5% at 233 K (−40 °C); or
(5) Other composite and composite modified double-base propellants.
(c) Pyrotechnics, fuels and related substances, and mixtures thereof, as follows:
(1) Alane (aluminum hydride) (CAS 7784-21-6);
(2) Carboranes; decaborane (CAS 17702-41-9); pentaborane and derivatives thereof (MT);
(3) Liquid high energy density fuels, as follows (MT):
(i) Mixed fuels that incorporate both solid and liquid fuels, such as boron slurry, having a mass-based energy density of 40 MJ/kg or greater; or
(ii) Other high energy density fuels and fuel additives (e.g., cubane, ionic solutions, JP-7, JP-10) having a volume-based energy density of 37.5 GJ per cubic meter or greater, measured at 20 °C and one atmosphere (101.325 kPa) pressure;
JP-4, JP-8, fossil refined fuels or biofuels, or fuels for engines certified for use in civil aviation are not included.
(4) Metal fuels, and fuel or pyrotechnic mixtures in particle form whether spherical, atomized, spheroidal, flaked, or ground, manufactured from material consisting of 99% or more of any of the following:
(i) Metals, and mixtures thereof, as follows:
(A) Beryllium (CAS 7440-41-7) in particle sizes of less than 60 micrometers (MT); or
(B) Iron powder (CAS 7439-89-6) with particle size of 3 micrometers or less produced by reduction of iron oxide with hydrogen;
(ii) Fuel mixtures or pyrotechnic mixtures, which contain any of the following:
(A) Boron (CAS 7440-42-8) or boron carbide (CAS 12069-32-8) fuels of 85% purity or higher and particle sizes of less than 60 micrometers; or
(B) Zirconium (CAS 7440-67-7), magnesium (CAS 7439-95-4), or alloys of these in particle sizes of less than 60 micrometers;
(iii) Explosives and fuels containing the metals or alloys listed in paragraphs (c)(4)(i) and (c)(4)(ii) of this category whether or not the metals or alloys are encapsulated in aluminum, magnesium, zirconium, or beryllium;
(5) Fuel, pyrotechnic, or energetic mixtures having any nanosized aluminum, beryllium, boron, zirconium, magnesium, or titanium, as follows:
(i) Having particle size less than 200 nm in any direction; and
(ii) Having 60% or higher purity;
(6) Pyrotechnic and pyrophoric materials, as follows:
(i) Pyrotechnic or pyrophoric materials specifically formulated to enhance or control the production of radiated energy in any part of the IR spectrum; or
(ii) Mixtures of magnesium, polytetrafluoroethylene and the copolymer vinylidene difluoride and hexafluoropropylene (MT);
(7) Titanium subhydride (TiHn) of stoichiometry equivalent to n = 0.65-1.68; or
(8) Hydrocarbon fuels specially formulated for use in flame throwers or incendiary munitions containing metal stearates (e.g., octal) or palmitates, and M1, M2, and M3 thickeners.
(d) Oxidizers, as follows:
(1) ADN (ammonium dinitramide or SR-12) (CAS 140456-78-6) (MT);
(2) AP (ammonium perchlorate) (CAS 7790-98-9) (MT);
(3) BDNPN (bis(2,2-dinitropropyl)nitrate) (CAS 28464-24-6);
(4) DNAD (1,3-dinitro-1,3-diazetidine) (CAS 78246-06-7);
(5) HAN (Hydroxylammonium nitrate) (CAS 13465-08-2);
(6) HAP (hydroxylammonium perchlorate) (CAS 15588-62-2);
(7) HNF (Hydrazinium nitroformate) (CAS 20773-28-8) (MT);
(8) Hydrazine nitrate (CAS 37836-27-4) (MT);
(9) Hydrazine perchlorate (CAS 27978-54-7) (MT);
(10) Inhibited red fuming nitric acid (IRFNA) (CAS 8007-58-7) and liquid oxidizers comprised of or containing IRFNA or oxygen difluoride (MT for liquid oxidizers comprised of IRFNA); or
(11) Perchlorates, chlorates, and chromates composited with powdered metal or other high energy fuel components controlled under this category (MT).
* (e) Binders, and mixtures thereof, as follows:
(1) AMMO (azidomethylmethyloxetane and its polymers) (CAS 90683-29-7);
(2) BAMO-3-3 (bis(azidomethyl)oxetane and its polymers) (CAS 17607-20-4);
(3) BTTN (butanetriol trinitrate) (CAS 6659-60-5) (MT);
(4) FAMAO (3-difluoroaminomethyl-3-azidomethyloxetane) and its polymers;
(5) FEFO (bis(2-fluoro-2,2-dinitroethyl)formal) (CAS 17003-79-1);
(6) GAP (glycidyl azide polymer) (CAS 143178-24-9) and its derivatives (MT for GAP);
(7) HTPB (hydroxyl-terminated polybutadiene) with a hydroxyl functionality equal to or greater than 2.2 and less than or equal to 2.4, a hydroxyl value of less than 0.77 meq/g, and a viscosity at 30 °C of less than 47 poise (CAS 69102-90-5) (MT);
(8) 4,5 diazidomethyl-2-methyl-1,2,3-triazole (iso-DAMTR) (MT);
(9) NENAS (nitratoethylnitramine compounds), as follows:
(i) N-Methyl 2-nitratoethylnitramine (Methyl-NENA) (CAS 17096-47-8) (MT);
(ii) N-Ethyl 2-nitratoethylnitramine (Ethyl-NENA) (CAS 85068-73-1) (MT);
(iii) N-Propyl 2-nitratoethylnitramine (CAS 82486-83-7);
(iv) N-Butyl-2-nitratoethylnitramine (BuNENA) (CAS 82486-82-6); or
(v) N-Pentyl 2-nitratoethylnitramine (CAS 85954-06-9);
(10) Poly-NIMMO (poly nitratomethylmethyoxetane, poly-NMMO, (poly[3-nitratomethyl-3-methyl oxetane]) (CAS 84051-81-0);
(11) PNO (Poly(3-nitratooxetane));
(12) TVOPA 1,2,3-Tris [1,2-bis(difluoroamino)ethoxy]propane; tris vinoxy propane adduct (CAS 53159-39-0);
(13) Polynitrorthocarbonates;
(14) FPF-1 (poly-2,2,3,3,4,4-hexafluoro pentane-1,5-diolformal) (CAS 376-90-9);
(15) FPF-3 (poly-2,4,4,5,5,6,6-heptafluoro-2-trifluoromethyl-3-oxaheptane-1,7-diolformal);
(16) PGN (Polyglycidyl nitrate or poly(nitratomethyloxirane); poly-GLYN); (CAS 27814-48-8);
(17) N-methyl-p-nitroaniline (MT);
(18) Low (less than 10,000) molecular weight, alcohol-functionalized, poly(epichlorohydrin); poly(epichlorohydrindiol); and triol; or
(19) Dinitropropyl based plasticizers, as follows (MT):
(i) BDNPA (bis (2,2-dinitropropyl) acetal) (CAS 5108-69-0); or
(ii) BDNPF (bis (2,2-dinitropropyl) formal) (CAS 5917-61-3).
(f) Additives, as follows:
(1) Basic copper salicylate (CAS 62320-94-9);
(2) BHEGA (Bis-(2-hydroxyethyl)glycolamide) (CAS 17409-41-5);
(3) BNO (Butadienenitrile oxide);
(4) Ferrocene derivatives, as follows (MT):
(i) Butacene (CAS 125856-62-4);
(ii) Catocene (2,2-Bis-ethylferrocenylpropane) (CAS 37206-42-1);
(iii) Ferrocene carboxylic acids and ferrocene carboxylic acid esters;
(iv) n-butylferrocene (CAS 31904-29-7);
(v) Ethylferrocene (CAS 1273-89-8);
(vi) Propylferrocene;
(vii) Pentylferrocene (CAS 1274-00-6);
(viii) Dicyclopentylferrocene;
(ix) Dicyclohexylferrocene;
(x) Diethylferrocene (CAS 173-97-8);
(xi) Dipropylferrocene;
(xii) Dibutylferrocene (CAS 1274-08-4);
(xiii) Dihexylferrocene (CAS 93894-59-8);
(xiv) Acetylferrocene (CAS 1271-55-2)/1,1′-diacetyl ferrocene (CAS 1273-94-5); or
(xv) Other ferrocene derivatives that do not contain a six carbon aromatic functional group attached to the ferrocene molecule (MT if usable as rocket propellant burning rate modifier);
(5) Lead beta-resorcylate (CAS 20936-32-7);
(6) Lead citrate (CAS 14450-60-3);
(7) Lead-copper chelates of beta-resorcylate or salicylates (CAS 68411-07-4);
(8) Lead maleate (CAS 19136-34-6);
(9) Lead salicylate (CAS 15748-73-9);
(10) Lead stannate (CAS 12036-31-6);
(11) MAPO (tris-1-(2-methyl) aziridinylphosphine oxide) (CAS 57-39-6); BOBBA-8 (bis(2-methyl aziridinyl)-2-(2-hydroxypropanoxy) propylamino phosphine oxide); and other MAPO derivatives (MT for MAPO);
(12) Methyl BAPO (Bis(2-methyl aziridinyl)methylaminophosphine oxide) (CAS 85068-72-0);
(13) 3-Nitraza-1,5-pentane diisocyanate (CAS 7406-61-9);
(14) Organo-metallic coupling agents, as follows:
(i) Neopentyl[diallyl]oxy, tri [dioctyl] phosphatotitanate (CAS 103850-22-2); also known as titanium IV, 2,2[bis 2-propenolato-methyl, butanolato, tris (dioctyl) phosphato] (CAS 110438-25-0), or LICA 12 (CAS 103850-22-2);
(ii) Titanium IV, [(2-propenolato-1) methyl, n-propanolatomethyl] butanolato-1, tris(dioctyl)pyrophosphate, or KR3538; or
(iii) Titanium IV, [(2-propenolato-1)methyl, propanolatomethyl] butanolato-1, tris(dioctyl) phosphate;
(15) PCDE (Polycyanodifluoroaminoethylene oxide);
(16) Certain bonding agents, as follows (MT):
(i) 1,1R,1S-trimesoyl-tris(2-ethylaziridine) (HX-868, BITA) (CAS 7722-73-8); or
(ii) Polyfunctional aziridine amides with isophthalic, trimesic, isocyanuric, or trimethyladipic backbone also having a 2-methyl or 2-ethyl aziridine group;
Included are (1) 1,1H-Isophthaloyl-bis(2-methylaziridine) (HX-752) (CAS 7652-64-4); (2) 2,4,6-tris(2-ethyl-1-aziridinyl)-1,3,5-triazine (HX-874) (CAS 18924-91-9); and (3) 1,1′-trimethyladipoylbis(2-ethylaziridine) (HX-877) (CAS 71463-62-2).
(17) Superfine iron oxide (Fe
(18) TEPAN (HX-879) (tetraethylenepentaamineacrylonitrile) (CAS 68412-45-3); cyanoethylated polyamines and their salts (MT for TEPAN (HX-879));
(19) TEPANOL (HX-878) (tetraethy-lenepentaamineacrylonitrileglycidol) (CAS 68412-46-4); cyanoethylated polyamines adducted with glycidol and their salts (MT for TEPANOL (HX-878));
(20) TPB (triphenyl bismuth) (CAS 603-33-8) (MT); or
(21) Tris (ethoxyphenyl) bismuth (TEPB) (CAS 90591-48-3).
(g) Precursors, as follows:
(1) BCMO (3,3-bis(chloromethyl)oxetane) (CAS 78-71-7);
(2) DADN (1,5-diacetyl-3,7-dinitro-1, 3, 5, 7-tetraazacyclooctane);
(3) Dinitroazetidine-t-butyl salt (CAS 125735-38-8);
(4) CL-20 precursors (any molecule containing hexaazaisowurtzitane) (e.g., HBIW (hexabenzylhexaazaisowurtzitane), TAIW (tetraacetyldibenzylhexa-azaisowurtzitane));
(5) TAT (1, 3, 5, 7-tetraacetyl-1, 3, 5, 7-tetraazacyclooctane) (CAS 41378-98-7);
(6) Tetraazadecalin (CAS 5409-42-7);
(7) 1,3,5-trichlorobenzene (CAS 108-70-3); or
(8) 1,2,4-trihydroxybutane (1,2,4-butanetriol) (CAS 3068-00-6).
* (h) Any explosive, propellant, pyrotechnic, fuel, oxidizer, binder, additive, or precursor that (MT for articles designated as such):
(1) Is classified; or
(2) Is being developed using classified information.
(i) Developmental explosives, propellants, pyrotechnics, fuels, oxidizers, binders, additives, or precursors therefor funded by the Department of Defense via contract or other funding authorization.
This paragraph does not control explosives, propellants, pyrotechnics, fuels, oxidizers, binders, additives, or precursors therefor (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination, or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This paragraph is applicable only to those contracts and funding authorizations that are dated January 5, 2015, or later.
(j) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraphs (a) through (i) of this category (see also § 120.5(c) of this subchapter for nuclear related controls) (MT for articles designated as such).
(k) The following interpretations explain and amplify the terms used in this category and elsewhere in this subchapter:
(1) USML Category V contains explosives, energetic materials, propellants, and pyrotechnics and specially formulated fuels for aircraft, missile, and naval applications. Explosives are solid, liquid, or gaseous substances or mixtures of substances, which, in their primary, booster, or main charges in warheads, demolition, or other military applications, are required to detonate.
(2) The resulting product of the combination or conversion of any substance controlled by this category into an item not controlled will no longer be controlled by this category provided the controlled item cannot easily be recovered through dissolution, melting, sieving, etc. As an example, beryllium converted to a near net shape using hot isostatic processes will result in an uncontrolled part. A cured thermoset containing beryllium powder is not controlled unless meeting an explosive or propellant control. The mixture of beryllium powder in a cured thermoset shape is not controlled by this category. The mixture of controlled beryllium powder mixed with a typical propellant binder will remain controlled by this category. The addition of dry silica powder to dry beryllium powder will remain controlled.
(3) Paragraph (c)(4)(ii)(A) of this category does not apply to boron and boron carbide enriched with boron-10 (20% or more of total boron-10 content).
(4) Theoretical specific impulse (Isp) is calculated using standard conditions (1000 psi chamber pressure expanded to 14.7 psi) and measured in units of pound-force-seconds per pound-mass (lbf-s/lbm) or simplified to seconds (s). Calculations will be based on shifting equilibrium.
(5) Particle size is the mean particle diameter on a weight basis. Best industrial practices will be used in determining particle size and the controls may not be undermined by addition of larger or smaller sized material to shift the mean diameter.
(l)-(w) [Reserved]
(x) Commodities, software, and technical data subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technical data subject to the EAR (see § 123.1(b) of this subchapter).
To assist the exporter, an item has been categorized by the most common use. Also, where appropriate, references have been provided to the related controlled precursors.
Chemical Abstract Service (CAS) registry numbers do not cover all the substances and mixtures controlled by this category. The numbers are provided as examples to assist government agencies in the license review process and exporters when completing their license application and export documentation.
Items controlled in this Category, except for materials described in paragraph (c)(6), (h), or (i), are licensed by the Department of Commerce when incorporated into an item subject to the EAR and classified under ECCN 1C608.
* (a) Warships and other combatant vessels (i.e., battleships, aircraft carriers, destroyers, frigates, cruisers, corvettes, littoral combat ships, mine sweepers, mine hunters, mine countermeasure ships, dock landing ships, amphibious assault ships), Coast Guard Cutters (with or equivalent to those with U.S. designations WHEC, WMEC, WMSL, or WPB for the purpose of this subchapter), or foreign-origin vessels specially designed to provide functions equivalent to those of the vessels listed above;
(b) Other vessels not controlled in paragraph (a) of this category, as follows:
(1) High-speed air cushion vessels for transporting cargo and personnel, ship-to-shore and across a beach, with a payload over 25 tons;
(2) Surface vessels integrated with nuclear propulsion plants or specially designed to support naval nuclear propulsion plants;
(3) Vessels armed or specially designed to be used as a platform to deliver munitions or otherwise destroy or incapacitate targets (e.g., firing lasers, launching torpedoes, rockets, or missiles, or firing munitions greater than .50 caliber); or
(4) Vessels incorporating any mission systems controlled under this subchapter.
“Mission systems” are defined as “systems” (see § 120.40(h) of this subchapter) that are defense articles that perform specific military functions such as by providing military communication, electronic warfare, target designation, surveillance, target detection, or sensor capabilities.
Vessels specially designed for military use that are not identified in paragraph (a) or (b) of this category are subject to the EAR under ECCN 8A609, including any demilitarized vessels, regardless of origin or designation, manufactured prior to 1950 and unmodified since 1949. Vessels with modifications made to incorporate safety features required by law, are cosmetic (e.g., different paint), or that add parts or components otherwise available prior to 1950 are considered “unmodified” for the purposes of this paragraph.
(c) Developmental vessels, and specially designed parts, components, accessories, and attachments therefor, funded by the Department of Defense via contract or other funding authorization.
This paragraph does not control vessels, and specially designed parts, components, accessories, and attachments therefor, (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination, or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This provision is applicable to those contracts and funding authorizations that are dated July 8, 2014, or later.
(d) [Reserved]
* (e) Naval nuclear propulsion plants and prototypes, and special facilities for construction, support, and maintenance therefor(see also § 120.5(c) of this subchapter for nuclear related controls).
(f) Vessel and naval equipment, parts, components, accessories, attachments, associated equipment, and systems, as follows:
(1) Hulls or superstructures, including support structures therefor, that:
(i) Are specially designed for any vessels controlled in paragraph (a) of this category;
(ii) Have armor, active protection systems, or developmental armor systems; or
(iii) Are specially designed to survive 12.5% or greater damage across the length as measured between perpendiculars;
(2) Systems that manage, store, create, distribute, conserve, and transfer energy, and specially designed parts and components therefor, that have:
(i) Storage exceeding 30MJ;
(ii) A discharge rate less than 3 seconds; and
(iii) A cycle time under 45 seconds;
(3) Shipborne auxiliary systems for chemical, biological, radiological, and nuclear (CBRN) compartmentalization, over-pressurization and filtration systems, and specially designed parts and components therefor;
* (4) Control and monitoring systems for autonomous unmanned vessels capable of on-board, autonomous perception and decision-making necessary for the vessel to navigate while avoiding fixed and moving hazards, and obeying rules-of-the road without human intervention;
* (5) Any machinery, device, component, or equipment, including production, testing and inspection equipment, and tooling, specially designed for plants or facilities controlled in paragraph (e) of this section (see also § 120.5(c) of this subchapter for nuclear related controls);
(6) Parts, components, accessories, attachments, and equipment specially designed for integration of articles controlled by USML Categories II, IV, or XVIII or catapults for launching aircraft or arresting gear for recovering aircraft (MT for launcher mechanisms specially designed for rockets, space launch vehicles, or missiles capable of achieving a range greater than or equal to 300 km);
“Range” is the maximum distance that the specified rocket system is capable of traveling in the mode of stable flight as measured by the projection of its trajectory over the surface of the Earth. The maximum capability based on the design characteristics of the system, when fully loaded with fuel or propellant, will be taken into consideration in determining range. The range for rocket systems will be determined independently of any external factors such as operational restrictions, limitations imposed by telemetry, data links, or other external constraints. For rocket systems, the range will be determined using the trajectory that maximizes range, assuming International Civil Aviation Organization (ICAO) standard atmosphere with zero wind.
(7) Shipborne active protection systems (i.e., defensive systems that actively detect and track incoming threats and launch a ballistic, explosive, energy, or electromagnetic countermeasure(s) to neutralize the threat prior to contact with a vessel) and specially designed parts and components therefor;
(8) Minesweeping and mine hunting equipment (including mine countermeasures equipment deployed by aircraft), and specially designed parts and components therefor; or
* (9) Any part, component, accessory, attachment, equipment, or system that:
(i) Is classified;
(ii) Contains classified software directly related to defense articles in this subchapter or 600 series items subject to the EAR; or
(iii) Is being developed using classified information.
Parts, components, accessories, attachments, associated equipment, and systems specially designed for vessels described in this category but not listed in paragraph (f) are subject to the EAR under ECCN 8A609.
For controls related to ship signature management, see USML Category XIII.
(g) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraphs (a) through (f) of this category and classified technical data directly related to items controlled in ECCNs 8A609, 8B609, 8C609, and 8D609 and defense services using the classified technical data. (MT for technical data and defense services related to articles designated as such.)
(See § 125.4 of this subchapter for exemptions.)
(h)-(w) [Reserved]
(x) Commodities, software, and technical data subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technical data subject to the EAR (see § 123.1(b) of this subchapter).
* (a) Armored combat ground vehicles as follows:
(1) Tanks; or
(2) Infantry fighting vehicles.
* (b) Ground vehicles (not enumerated in paragraph (a) of this category) and trailers that are armed or are specially designed to be used as a firing or launch platform to deliver munitions or otherwise destroy or incapacitate targets (e.g., firing lasers, launching rockets, firing missiles, firing mortars, firing artillery rounds, or firing other ammunition greater than .50 caliber) (MT if specially designed for rockets, space launch vehicles, missiles, drones, or unmanned aerial vehicles capable of delivering a payload of at least 500 kg to a range of at least 300 km).
(c) Ground vehicles and trailers equipped with any mission systems controlled under this subchapter (MT if specially designed for rockets, space launch vehicles, missiles, drones, or unmanned aerial vehicles capable of delivering a payload of at least 500 kg to a range of at least 300 km).
“Mission systems” are defined as “systems” (see § 120.40(h) of this subchapter) that are defense articles that perform specific military functions, such as by providing military communication, target designation, surveillance, target detection, or sensor capabilities.
“Payload” is the total mass that can be carried or delivered by the specified rocket, space launch vehicle, missile, drone, or unmanned aerial vehicle that is not used to maintain flight. For definition of “range” as it pertains to aircraft systems, see note to paragraph (a) USML Category VIII. For definition of “range” as it pertains to rocket systems, see note to paragraph (f)(6) of USML Category VI.
(d) [Reserved]
* (e) Armored support vehicles capable of off-road or amphibious use specially designed to transport or deploy personnel or materiel, or to move with other vehicles over land in close support of combat vehicles or troops (e.g., personnel carriers, resupply vehicles, combat engineer vehicles, recovery vehicles, reconnaissance vehicles, bridge launching vehicles, ambulances, and command and control vehicles).
(f) [Reserved]
(g) Ground vehicle parts, components, accessories, attachments, associated equipment, and systems as follows:
(1) Armored hulls, armored turrets, and turret rings;
(2) Active protection systems (i.e., defensive systems that actively detect and track incoming threats and launch a ballistic, explosive, energy, or electromagnetic countermeasure(s) to neutralize the threat prior to contact with a vehicle) and specially designed parts and components therefor;
(3) Composite armor parts and components specially designed for the vehicles in this category;
(4) Spaced armor components and parts, including slat armor parts and components specially designed for the vehicles in this category;
(5) Reactive armor parts and components;
(6) Electromagnetic armor parts and components, including pulsed power specially designed parts and components therefor;
See USML Category XIII(m)(1)-(4) for interpretations which explain and amplify terms used in these paragraphs.
(7) Built in test equipment (BITE) to evaluate the condition of weapons or other mission systems for vehicles identified in this category, excluding equipment that provides diagnostics solely for a subsystem or component involved in the basic operation of the vehicle;
(8) Gun mount, stabilization, turret drive, and automatic elevating systems, and specially designed parts and components therefor;
(9) Self-launching bridge components rated class 60 or above for deployment by vehicles in this category;
(10) Suspension components as follows:
(i) Rotary shock absorbers specially designed for the vehicles weighing more than 30 tons in this category; or
(ii) Torsion bars specially designed for the vehicles weighing more than 50 tons in this category;
(11) Kits specially designed to convert a vehicle in this category into either an unmanned or a driver-optional vehicle. For a kit to be controlled by this paragraph, it must, at a minimum, include equipment for:
(i) Remote or autonomous steering;
(ii) Acceleration and braking; and
(iii) A control system;
(12) Fire control computers, mission computers, vehicle management computers, integrated core processers, stores management systems, armaments control processors, vehicle-weapon interface units and computers;
(13) Test or calibration equipment for the mission systems of the vehicles in this category, except those enumerated elsewhere; or
* (14) Any part, component, accessory, attachment, equipment, or system that (MT for those articles designated as such):
(i) Is classified;
(ii) Contains classified software directly related to defense articles in this subchapter or 600 series items subject to the EAR; or
(iii) Is being developed using classified information.
Parts, components, accessories, attachments, associated equipment, and systems specially designed for vehicles in this category but not listed in paragraph (g) are subject to the EAR under ECCN 0A606.
(h) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraphs (a) through (g) of this category and classified technical data directly related to items controlled in ECCNs 0A606, 0B606, 0C606, and 0D606 and defense services using the classified technical data. (See § 125.4 of this subchapter for exemptions.) (MT for technical data and defense services related to articles designated as such.)
(i)-(w) [Reserved]
(x) Commodities, software, and technical data subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technical data subject to the EAR (see § 123.1(b) of this subchapter).
Ground vehicles specially designed for military applications that are not identified in this category are subject to the EAR under ECCN 0A606, including any unarmed ground vehicles, regardless of origin or designation, manufactured prior to 1956 and unmodified since 1955. Ground vehicles with modifications made to incorporate safety features required by law, are cosmetic (e.g., different paint, repositioning of bolt holes), or that add parts or components otherwise available prior to 1956 are considered “unmodified” for the purposes of this paragraph. ECCN 0A606 also includes unarmed vehicles derived from otherwise EAR99 civilian vehicles that have been modified or otherwise fitted with materials to provide ballistic protection, including protection to level III (National Institute of Justice Standard 0108.01, September 1985) or better and that do not have reactive or electromagnetic armor.
Armored ground vehicles are (i) ground vehicles that have integrated, fully armored hulls or cabs, or (ii) ground vehicles on which add-on armor has been installed to provide ballistic protection to level III (National Institute of Justice Standard 0108.01, September 1985) or better. Armored support vehicles do not include those that are merely capable of being equipped with add-on armor.
Ground vehicles include any vehicle meeting the definitions or control parameters regardless of the surface (e.g., highway, off-road, rail) upon which the vehicle is designed to operate.
(a) Aircraft, whether manned, unmanned, remotely piloted, or optionally piloted, as follows (MT if the aircraft, excluding manned aircraft, has a range equal to or greater than 300 km):
* (1) Bombers;
* (2) Fighters, fighter bombers, and fixed-wing attack aircraft;
* (3) Turbofan- or turbojet-powered trainers used to train pilots for fighter, attack, or bomber aircraft;
* (4) Attack helicopters;
* (5) Unmanned aerial vehicles (UAVs) specially designed to incorporate a defense article;
* (6) [Reserved]
* (7) Aircraft specially designed to incorporate a defense article for the purpose of performing an intelligence, surveillance, and reconnaissance function;
* (8) Aircraft specially designed to incorporate a defense article for the purpose of performing an electronic warfare function; airborne warning and control aircraft; or aircraft specially designed to incorporate a defense article for the purpose of performing a command, control, and communications function;
(9) Aircraft specially designed to incorporate a defense article for the purpose of performing an air refueling function;
(10) Target drones;
(11) [Reserved]
(12) Aircraft capable of being refueled in-flight including hover-in-flight refueling (HIFR);
(13) [Reserved]
(14) Aircraft with a roll-on/roll-off ramp, capable of airlifting payloads over 35,000 lbs. to ranges over 2,000 nm without being refueled in-flight, and landing onto short or unimproved airfields, other than L-100 and LM-100J aircraft;
* (15) Aircraft not enumerated in paragraphs (a)(1) through (a)(14) as follows:
(i) U.S.-origin aircraft that bear an original military designation of A, B, E, F, K, M, P, R, or S; or
(ii) Foreign-origin aircraft specially designed to provide functions equivalent to those of the aircraft listed in paragraph (a)(15)(i) of this category; or
(16) Aircraft that are armed or are specially designed to be used as a platform to deliver munitions or otherwise destroy targets (e.g., firing lasers, launching rockets, firing missiles, dropping bombs, or strafing);
Aircraft specially designed for military applications that are not identified in paragraph (a) of this section are subject to the EAR and classified as ECCN 9A610, including any model of unarmed military aircraft manufactured prior to 1956, regardless of origin or designation, and unmodified since manufacture. Aircraft with modifications made to incorporate safety of flight features or other FAA or NTSB modifications such as transponders and air data recorders are considered “unmodified” for the purposes of this paragraph.
“Range” is the maximum distance that the specified aircraft system is capable of traveling in the mode of stable flight as measured by the projection of its trajectory over the surface of the Earth. The maximum capability based on the design characteristics of the system, when fully loaded with fuel or propellant, will be taken into consideration in determining range. The range for aircraft systems will be determined independently of any external factors such as operational restrictions, limitations imposed by telemetry, data links, or other external constraints. For aircraft systems, the range will be determined for a one-way distance using the most fuel-efficient flight profile (e.g., cruise speed and altitude), assuming International Civil Aviation Organization (ICAO) standard atmosphere with zero wind, but with no fuel reserve.
(b)-(c) [Reserved]
(d) Launching and recovery equipment specially designed to allow an aircraft described in paragraph (a) of this category to take off or land on a vessel described in Category VI paragraphs (a) through (c) (MT if the launching and recovery equipment is for an aircraft, excluding manned aircraft, that has a range equal to or greater than 300 km).
For the definition of “range,” see note to paragraph (a) of this category.
(e) [Reserved]
(f) Developmental aircraft funded by the Department of Defense via contract or other funding authorization, and specially designed parts, components, accessories, and attachments therefor.
This paragraph does not control aircraft and specially designed parts, components, accessories, and attachments therefor (a) in production; (b) determined to be subject to the EAR via a commodity jurisdiction determination, or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This paragraph is applicable only to those contracts, other funding authorizations, or modifications initiating development of a new defense article that are dated April 16, 2014, or later.
(g) [Reserved]
(h) Parts, components, accessories, attachments, associated equipment and systems, as follows:
(1) Parts, components, accessories, and attachments specially designed for the following U.S.-origin aircraft: The B-1B, B-2, B-21, F-15SE, F/A-18 E/F, EA-18G, F-22, F-35, and future variants thereof; or the F-117 or U.S. Government technology demonstrators. Parts, components, accessories, and attachments of the F-15SE and F/A-18 E/F that are common to earlier models of these aircraft, unless listed in paragraph (h) of this category, are subject to the EAR;
This paragraph does not control parts, components, accessories, and attachments that are common to aircraft described in paragraph (a) of this category but not identified in paragraph (h)(1), and those identified in paragraph (h)(1). For example, when applying § 120.41(b)(3), a part common to only the F-16 and F-35 is not specially designed for purposes of this paragraph. A part common to only the F-22 and F-35 – two aircraft models identified in paragraph (h)(1) – is specially designed for purposes of this paragraph, unless one of the other paragraphs is applicable under § 120.41(b) of this subchapter.
(2) Rotorcraft gearboxes with internal pitch line velocities exceeding 20,000 feet per minute and able to operate 30 minutes with loss of lubrication without an emergency or auxiliary lubrication system, and specially designed parts and components therefor;
Loss of lubrication means a situation where oil/lubrication is mostly or completely lost from a transmission/gearbox such that only a residual coating remains due to the lubrication system failure.
(3) Tail boom folding systems, stabilator folding systems or automatic rotor blade folding systems, and specially designed parts and components therefor;
(4) Wing folding systems, and specially designed parts and components therefor, for:
(i) Aircraft powered by power plants controlled under USML Category IV(d); or
(ii) Aircraft with any of the following characteristics and powered by gas turbine engines:
(A) The portion of the wing outboard of the wing fold is required for sustained flight;
(B) Fuel can be stored outboard of the wing fold;
(C) Control surfaces are outboard of the wing fold;
(D) Hard points are outboard of the wing fold;
(E) Hard points inboard of the wing fold allow for in-flight ejection; or
(F) The aircraft is designed to withstand maximum vertical maneuvering accelerations greater than +3.5g/−1.5g.
(5) On-aircraft arresting gear (e.g., tail hooks and drag chutes) and specially designed parts and components therefor;
(6) Bomb racks, missile or rocket launchers, missile rails, weapon pylons, pylon-to-launcher adapters, unmanned aerial vehicle (UAV) airborne launching systems, external stores support systems for ordnance or weapons, and specially designed parts and components therefor (MT if the bomb rack, missile launcher, missile rail, weapon pylon, pylon-to-launcher adapter, UAV airborne launching system, or external stores support system is for an aircraft, excluding manned aircraft, or missile that has a “range” equal to or greater than 300 km);
(7) Damage or failure-adaptive flight control systems, that do not consist solely of redundant internal circuitry, specially designed for aircraft controlled in this category;
(8) Threat-adaptive autonomous flight control systems, where a “threat-adaptive autonomous flight control system” is a flight control system that, without input from the operator or pilot, adjusts the aircraft control or flight path to minimize risk caused by hostile threats;
(9) Non-surface-based flight control systems and effectors (e.g., thrust vectoring from gas ports other than main engine thrust vector);
(10) Radar altimeters with output power management LPI (low probability of intercept) or signal modulation (i.e., frequency hopping, chirping, direct sequence-spectrum spreading) LPI capabilities (MT if for an aircraft, excluding manned aircraft, or missile that has a “range” equal to or greater than 300 km);
(11) Air-to-air refueling systems and hover-in-flight refueling (HIFR) systems, and specially designed parts and components therefor;
(12) Unmanned aerial vehicle (UAV) flight control systems and vehicle management systems with swarming capability (i.e. UAVs that operate autonomously (without human input) to interact with each other to avoid collisions, fly in formations, and are capable of adapting in real-time to changes in operational/threat environment, or, if weaponized, coordinate targeting) (MT if for an aircraft, excluding manned aircraft, or missile that has a “range” equal to or greater than 300 km);
(13) [Reserved]
(14) Lift fans, clutches, and roll posts for short take-off, vertical landing (STOVL) aircraft and specially designed parts and components for such lift fans and roll posts;
(15) Integrated helmets incorporating optical sights or slewing devices, which include the ability to aim, launch, track, or manage munitions (e.g., Helmet Mounted Cueing Systems, Joint Helmet Mounted Cueing Systems (JHMCS), Helmet Mounted Displays, Display and Sight Helmets (DASH)), and specially designed parts, components, accessories, and attachments therefor;
(16) Fire control computers, stores management systems, armaments control processors, and aircraft-weapon interface units and computers (e.g., AGM-88 HARM Aircraft Launcher Interface Computer (ALIC));
(17) Mission computers, vehicle management computers, and integrated core processers specially designed for aircraft controlled in this category;
(18) Drive systems, flight control systems, and parts and components therefor, specially designed to function after impact of a 7.62mm or larger projectile;
(19) Thrust reversers specially designed to be deployed in flight for aircraft controlled in this category;
* (20) Any part, component, accessory, attachment, equipment, or system that:
(i) Is classified;
(ii) Contains classified software directly related to defense articles in this subchapter or 600 series items subject to the EAR; or
(iii) Is being developed using classified information.
(21)-(26) [Reserved]
(27) Variable speed gearboxes, where a “variable speed gearbox” has the ability to vary the gearbox output speed by mechanical means within the gearbox while the gearbox input speed from the engine or other source is constant, and is capable of varying output speed by 20% or greater and providing power to rotors, proprotors, propellers, propfans, or liftfans; and specially designed parts and components therefor;
(28) Electrical power or thermal management systems specially designed for an engine controlled in Category XIX and having any of the following:
(i) Electrical power generators that provide greater than 300kW of electrical power (per generator) with gravimetric power densities exceeding 2kW/pound (excluding the mass of the controller for the purpose of calculating the gravimetric power density);
(ii) Heat exchangers that exchange 60 kW/K-m
(iii) Direct-cooling thermal electronic package heat exchangers that transfer 20kW of heat or greater at 100W/cm
(29) Any of the following equipment if specially designed for a defense article described in paragraph (h)(1):
(i) Scale test models;
(ii) Full scale iron bird ground rigs used to test major aircraft systems; or
(iii) Jigs, locating fixtures, templates, gauges, molds, dies, or caul plates.
(i) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraphs (a) through (h) of this category and classified technical data directly related to items controlled in ECCNs 9A610, 9B610, 9C610, and 9D610 and defense services using classified technical data. (See § 125.4 of this subchapter for exemptions.) (MT for technical data and defense services related to articles designated as such.)
(j)-(w) [Reserved]
(x) Commodities, software, and technology subject to the EAR used in or with defense articles controlled in this category.
Use of this paragraph is limited to license applications for defense articles controlled in this category where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).
Parts, components, accessories, and attachments in paragraphs (h)(3)-(5), (7), (14), (17), or (19) are licensed by the Department of Commerce when incorporated in an aircraft subject to the EAR and classified under ECCN 9A610. Replacement systems, parts, components, accessories and attachments are subject to the controls of the ITAR.
(a) Training equipment, as follows:
(1) Ground, surface, submersible, space, or towed airborne targets that:
(i) Have an infrared, radar, acoustic, magnetic, or thermal signature that mimic a specific defense article, specific other item, or specific person; or
(ii) Are instrumented to provide hit/miss performance information for defense articles controlled in this subchapter;
Target drones are controlled in USML Category VIII(a).
(2) Devices that are mockups of articles enumerated in this subchapter used for maintenance training or disposal training for ordnance enumerated in this subchapter, that reveal technical data or contain parts, components, accessories, or attachments controlled in this subchapter;
(3) Air combat maneuvering instrumentation and ground stations therefor;
(4) Physiological flight trainers for fighter aircraft or attack helicopters;
(5) Radar trainers specially designed for training on radar controlled by USML Category XI;
(6) Training devices specially designed to be attached to a crew station, mission system, or weapon of an article controlled in this subchapter;
This paragraph includes stimulators that are built-in or add-on devices that cause the actual equipment to act as a trainer.
(7) Anti-submarine warfare trainers;
(8) Missile launch trainers;
(9) Radar target generators;
(10) Infrared scene generators; or
* (11) Any training device that:
(i) Is classified;
(ii) Contains classified software directly related to defense articles in this subchapter or 600 series items subject to the EAR; or
(iii) Is being developed using classified information.
Training equipment does not include combat games without item signatures or tactics, techniques, and procedures covered by this subchapter.
(b) Simulators, as follows:
(1) System specific simulators that replicate the operation of an individual crew station, a mission system, or a weapon of an end-item that is controlled in this subchapter;
(2)-(3) [Reserved]
(4) Software and associated databases not elsewhere enumerated in this subchapter that can be used to model or simulate the following:
(i) Trainers enumerated in paragraph (a) of this category;
(ii) Battle management;
(iii) Military test scenarios/models; or
(iv) Effects of weapons enumerated in this subchapter; or
* (5) Simulators that:
(i) Are classified;
(ii) Contain classified software directly related to defense articles in this subchapter or 600 series items subject to the EAR; or
(iii) Are being developed using classified information.
(c)-(d) [Reserved]
(e) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter):
(1) Directly related to the defense articles enumerated in paragraphs (a) and (b) of this category;
(2) Directly related to the software and associated databases enumerated in paragraph (b)(4) of this category even if no defense articles are used or transferred; or
(3) Military training (see § 120.32(a)(3) of this subchapter) not directly related to defense articles or technical data enumerated in this subchapter.
(f)-(w) [Reserved]
(x) Commodities, software, and technical data subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technical data subject to the EAR (see § 123.1(b) of this subchapter).
Parts, components, accessories, or attachments of a simulator in this category that are common to the simulated system or simulated end-item are controlled under the same USML category or CCL ECCN as the parts, components, accessories, and attachments of the simulated system or simulated end-item.
(a) Personal protective equipment, as follows:
(1) Body armor providing a protection level equal to or greater than NIJ Type IV;
For body armor providing a level of protection of Type I, Type II, Type IIA, Type IIIA, or Type III, see ECCNs 1A005 and 1A613.
See USML Category XIII(e) for controls on related materials.
(2) Personal protective clothing, equipment, or face paints specially designed to protect against or reduce detection by radar, IR, or other sensors at wavelengths greater than 900 nanometers;
See USML Category XIII(j) for controls on related materials.
(3)-(4) [Reserved]
(5) Integrated helmets, not specified in USML Category VIII(h)(15) or USML Category XII, incorporating optical sights or slewing devices, which include the ability to aim, launch, track, or manage munitions;
(6) Helmets and helmet shells providing a protection level equal to or greater than NIJ Type IV;
(7) Goggles, spectacles, visors, vision blocks, canopies, or filters for optical sights or viewers, employing other than common broadband absorptive dyes or UV inhibitors as a means of protection (e.g., narrow band filters/dyes or broadband limiters/coatings with high visible transparency), having an optical density greater than 3, and that protect against:
(i) Multiple visible (in-band) laser wavelengths;
(ii) Thermal flashes associated with nuclear detonations; or
(iii) Near infrared or ultraviolet (out-of-band) laser wavelengths; or
See paragraphs (d)(2) and (3) of this category for controls on related parts, components, and materials.
See USML Category XII for sensor protection equipment.
(8) Developmental personal protective equipment and specially designed parts, components, accessories, and attachments therefor, developed for the U.S. Department of Defense via contract or other funding authorization.
This paragraph does not control personal protective equipment and specially designed parts, components, accessories, and attachments (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination, or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the USML, whether in production or development.
This paragraph is applicable only to those contracts and funding authorizations that are dated January 5, 2015, or later.
(b)-(c) [Reserved]
(d) Parts, components, assemblies, accessories, attachments, and associated equipment for the personal protective equipment controlled in this category, as follows:
(1) Ceramic or composite plates that provide protection equal to or greater than NIJ Type IV;
(2) Lenses, substrates, or filters “specially designed” for the articles covered in paragraph (a)(7) of this category;
(3) Materials and coatings specially designed for the articles covered in paragraph (a)(7) of this category with optical density greater than 3, as follows:
(i) Narrowband absorbing dyes;
(ii) Broadband optical switches or limiters (i.e., nonlinear material, tunable or switchable agile filters, optical power limiters, near infrared interference based filters); or
(iii) Narrowband interference based notch filters (i.e., multi-layer dielectric coatings, rugate, holograms or hybrid (i.e., interference with dye)) protecting against multiple laser wavelength and having high visible band transparency; or
* (4) Any component, part, accessory, attachment, equipment, or system that:
(i) Is classified;
(ii) Contains classified software directly related to defense articles in this subchapter or 600 series items subject to the EAR; or
(iii) Is being developed using classified information.
See National Institute of Justice Classification, NIJ Standard-0101.06, or national equivalents, for a description of level of protection for armor.
(e) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraphs (a) through (d) of this category.
(f)-(w) [Reserved]
(x) Commodities, software, and technical data subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technical data subject to the EAR (see § 123.1(b) of this subchapter).
(a) Electronic equipment and systems not included in Category XII of the U.S. Munitions List, as follows:
* (1) Underwater hardware, equipment, or systems, as follows:
(i) Active or passive acoustic array sensing systems or acoustic array equipment capable of real-time processing that survey or detect, and also track, localize (i.e., determine range and bearing), classify, or identify, surface vessels, submarines, other undersea vehicles, torpedoes, or mines, having any of the following:
(A) Multi-static capability;
(B) Operating frequency less than 20 kHz; or
(C) Operating bandwidth greater than 10 kHz;
(ii) Underwater single acoustic sensor system that distinguishes non-biologic tonals and locates the origin of the sound;
The term tonals implies discrete frequencies in the broadband and narrowband spectra, emanating from man-made objects.
(iii) Non-acoustic systems that survey or detect, and also track, localize (i.e., determine range and bearing), classify, or identify, surface vessels, submarines, other undersea vehicles, torpedoes, or mines;
(iv) Acoustic modems, networks, and communications equipment with real-time adaptive compensation or employing Low Probability of Intercept (LPI);
Adaptive compensation is the capability of an underwater modem to assess the water conditions to select the best algorithm to receive and transmit data.
(v) Low Frequency/Very Low Frequency (LF/VLF) electronic modems, routers, interfaces, and communications equipment, specially designed for submarine communications; or
(vi) Autonomous systems and equipment that enable cooperative sensing and engagement by fixed (bottom mounted/seabed) or mobile Autonomous Underwater Vehicles (AUVs);
* (2) Underwater acoustic countermeasures or counter-countermeasures systems or equipment;
* (3) Radar systems and equipment, as follows:
(i) Airborne radar that maintains positional state of an object or objects of interest, other than weather phenomena, in a received radar signal through time;
This paragraph does not control radars that: (1) Are incapable of free space detection of 1 square meter Radar Cross Section (RCS) target beyond 8 nautical miles (nmi); (2) contain a radar update rate of not more than 1Hz; and (3) employ a design determined to be subject to the EAR via a commodity jurisdiction determination.
(ii) Synthetic Aperture Radar (SAR) incorporating image resolution less than (better than) 0.3 m, or incorporating Coherent Change Detection (CCD) with geo-registration accuracy less than (better than) 0.3 m, not including concealed object detection equipment operating in the frequency range from 30 GHz to 3,000 GHz and having a spatial resolution of 0.1 milliradians up to and including 1 milliradians at a standoff distance of 100 m;
(iii) Inverse Synthetic Aperture Radar (ISAR);
(iv) Radar that geodetically-locates (i.e., geodetic latitude, geodetic longitude, and geodetic height) with a target location error 50 (TLE50) less than or equal to 10 m at ranges greater than 1 km;
(v) Any Ocean Surveillance Radar with an average-power-aperture product of greater than 50 Wm
(vi) Any ocean surveillance radar that transmits a waveform with an instantaneous bandwidth greater than 100 MHz and has an antenna rotation rate greater than 60 revolutions per minute (RPM);
(vii) Air surveillance radar with free space detection of 1 square meter RCS target at 85 nmi or greater range, scaled to RCS values as RCS to the
(viii) Air surveillance radar with free space detection of 1 square meter RCS target at an altitude of 65,000 feet and an elevation angle greater than 20 degrees (i.e., counter-battery);
(ix) [Reserved]
(x) Air surveillance radar with a beam solid angle less than or equal to 16 degrees
(xi) Instrumentation radar for anechoic test facility or outdoor range that maintains positional state of an object of interest in a received radar signal through time or provides measurement of RCS of a static target less than or equal to minus 10dBsm, or RCS of a dynamic target;
(xii) Radar incorporating pulsed operation with electronics steering of transmit beam in elevation and azimuth;
This paragraph does not control radars not otherwise controlled in this subchapter, operating with a peak transmit power less than or equal to 550 watts, and employing a design determined to be subject to the EAR via a commodity jurisdiction determination.
(xiii) Radar with mode(s) for ballistic tracking or ballistic extrapolation to source of launch or impact point of articles controlled in USML Categories III, IV, or XV;
(xiv) Active protection radar and missile warning radar with mode(s) implemented for detection of incoming munitions;
(xv) Over the horizon high frequency sky-wave (ionosphere) radar;
(xvi) Radar that detects a moving object through a physical obstruction at distance greater than 0.2 m from the obstruction;
(xvii) Radar having moving target indicator (MTI) or pulse-Doppler processing where any single Doppler filter provides a normalized clutter attenuation of greater than 60dB;
Normalized clutter attenuation is defined as the reduction in the power level of received distributed clutter when normalized to the thermal noise level.
(xviii) Radar having electronic protection or electronic counter-countermeasures (ECCM) other than manual gain control, automatic gain control, radio frequency selection, constant false alarm rate, and pulse repetition interval jitter;
(xix) Radar employing electronic attack (EA) mode(s) using the radar transmitter and antenna;
(xx) Radar employing electronic support (ES) mode(s) (i.e., the ability to use a radar system for ES purposes in one or more of the following: as a high-gain receiver, as a wide-bandwidth receiver, as a multi-beam receiver, or as part of a multi-point system);
(xxi) Radar employing non-cooperative target recognition (NCTR) (i.e., the ability to recognize a specific platform type without cooperative action of the target platform);
The definition of “type” in this paragraph is that provided in 14 CFR § 1.1.
(xxii) Radar employing automatic target recognition (ATR) (i.e., recognition of target using structural features (e.g., tank versus car) of the target with system resolution better than (less than) 0.3 m);
(xxiii) Radar that sends interceptor guidance commands or provides illumination keyed to an interceptor seeker;
(xxiv) Radar employing waveform generation for LPI other than frequency modulated continuous wave (FMCW) with linear ramp modulation;
(xxv) Radar that sends and receives communications;
(xxvi) Radar that tracks or discriminates ballistic missile warhead from debris or countermeasures;
(xxvii) Bi-static/multi-static radar that exploits greater than 125 kHz bandwidth and is lower than 2 GHz center frequency to passively detect or track using radio frequency (RF) transmissions (e.g., commercial radio, television stations);
(xxviii) Radar target generators, projectors, or simulators, specially designed for radars controlled by this category; or
(xxix) Radar and laser radar systems specially designed for defense articles in paragraph (a)(1) of USML Category IV or paragraphs (a)(5), (a)(6), or (a)(13) of USML Category VIII (MT if specially designed for rockets, space launch vehicles, missiles, drones, or unmanned aerial vehicles capable of delivering a payload of at least 500 kg to a range of at least 300 km);
Laser radar systems embody specialized transmission, scanning, receiving, and signal processing techniques for utilization of lasers for echo ranging, direction finding, and discrimination of targets by location, radial speed, and body reflection characteristics.
For definition of “range” as it pertains to rocket systems, see note 1 to paragraph (a) of USML Category IV. “Payload” is the total mass that can be carried or delivered by the specified rocket, SLV, or missile that is not used to maintain flight.
This paragraph does not control: (a) Systems or equipment that require aircraft transponders in order to meet control parameters; (b) precision approach radar (PAR) equipment conforming to ICAO standards and employing electronically steerable linear (1- dimensional) arrays or mechanically positioned passive antennas; and (c) radio altimeter equipment conforming to FAA TSO C87.
* (4) Electronic Combat (i.e., Electronic Warfare) systems and equipment, as follows:
(i) ES systems and equipment that search for, intercept and identify, or locate sources of intentional or unintentional electromagnetic energy specially designed to provide immediate threat detection, recognition, targeting, planning, or conduct of future operations;
ES provides tactical situational awareness, automatic cueing, targeting, electronic order of battle planning, electronic intelligence (ELINT), communication intelligence (COMINT), or signals intelligence (SIGINT).
(ii) Systems and equipment that detect and automatically discriminate acoustic energy emanating from weapons fire (e.g., gunfire, artillery, rocket propelled grenades, or other projectiles), determining location or direction of weapons fire in less than two seconds from receipt of event signal, and able to operate on-the-move (e.g., operating on personnel, land vehicles, sea vessels, or aircraft while in motion); or
(iii) Systems and equipment specially designed to introduce extraneous or erroneous signals into radar, infrared based seekers, electro-optic based seekers, radio communication receivers, navigation receivers, or that otherwise hinder the reception, operation, or effectiveness of adversary electronics (e.g., active or passive electronic attack, electronic countermeasure, electronic counter-countermeasure equipment, jamming, and counter jamming equipment);
* (5) Command, control, and communications (C3); command, control, communications, and computers (C4); command, control, communications, computers, intelligence, surveillance, and reconnaissance (C4ISR); and identification systems or equipment, that:
(i) Are specially designed to integrate, incorporate, network, or employ defense articles that are controlled in paragraphs or subparagraphs of the categories of § 121.1 of this part that do not use the term specially designed;
(ii) Incorporate U.S. government identification friend or foe (IFF) Modes 4 or 5;
(iii) Implement active or passive ECCM used to counter acts of communication disruption (e.g., radios that incorporate HAVE QUICK I/II, SINCGARS, SATURN);
(iv) Specially designed, rated, certified, or otherwise specified or described to be in compliance with U.S. government NSTISSAM TEMPEST 1-92 standards or CNSSAM TEMPEST 01-02, to implement techniques to suppress compromising emanations of information bearing signals; or
(v) Transmit voice or data signals specially designed to elude electromagnetic detection;
(6) [Reserved]
(7) Developmental electronic equipment or systems funded by the Department of Defense via contract or other funding authorization;
This paragraph does not control electronic systems or equipment (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination, or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the USML, whether in production or development.
This paragraph is applicable only to those contracts and funding authorizations that are dated July 1, 2015, or later.
(8) Unattended ground sensor (UGS) systems or equipment having all of the following:
(i) Automatic target detection;
(ii) Automatic target tracking, classification, recognition, or identification;
(iii) Self-forming or self-healing networks; and
(iv) Self-localization for geo-locating targets;
(9) Electronic sensor systems or equipment for non-acoustic antisubmarine warfare (ASW) or mine warfare (e.g., magnetic anomaly detectors (MAD), electric-field, electromagnetic induction);
(10) Electronic sensor systems or equipment for detection of concealed weapons, having a standoff detection range of greater than 45 m for personnel or detection of vehicle-carried weapons, not including concealed object detection equipment operating in the frequency range from 30 GHz to 3,000 GHz and having a spatial resolution of 0.1 milliradians up to and including 1 milliradians at a standoff distance of 100 m;
(11) Test sets specially designed for testing defense articles controlled in paragraphs (a)(3), (a)(4), (a)(5), or (b); or
(12) Direction finding equipment for determining bearings to specific electromagnetic sources or terrain characteristics specially designed for defense articles in paragraph (a)(1) of USML Category IV or paragraphs (a)(5), (a)(6), or (a)(13) of USML Category VIII (MT if specially designed for rockets, SLVs, missiles, drones, or UAVs capable of delivering a payload of at least 500 kg to a range of at least 300 km. See note 2 to paragraph (a)(3)(xxix) of this category).
The term Low Probability of Intercept used in this paragraph and elsewhere in this category is defined as a class of measures that disguise, delay, or prevent the interception of acoustic or electromagnetic signals. LPI techniques can involve permutations of power management, energy management, frequency variability, out-of-receiver-frequency band, low-side lobe antenna, complex waveforms, and complex scanning. LPI is also referred to as Low Probability of Intercept, Low Probability of Detection, and Low Probability of Identification.
Paragraphs (a)(3)(xxix) and (a)(12) include terrain contour mapping equipment, scene mapping and correlation (both digital and analogue) equipment, Doppler navigation radar equipment, passive interferometer equipment, and imaging sensor equipment (both active and passive).
*(b) Electronic systems, equipment or software, not elsewhere enumerated in this subchapter, specially designed for intelligence purposes that collect, survey, monitor, or exploit, or analyze and produce information from, the electromagnetic spectrum (regardless of transmission medium), or for counteracting such activities.
(c) Parts, components, accessories, attachments, and associated equipment, as follows:
(1) Application Specific Integrated Circuits (ASICs) and Programmable Logic Devices (PLD) programmed for defense articles in this subchapter;
An ASIC is an integrated circuit developed and produced for a specific application or function regardless of number of customers.
ASICs and PLDs programmed for 600 series items are controlled in ECCN 3A611.f.
Unprogrammed PLDs are not controlled by this paragraph.
(2) Printed Circuit Boards (PCBs) and populated circuit card assemblies for which the layout is specially designed for defense articles in this subchapter;
PCBs and populated circuit card assemblies for which the layout is specially designed for 600 series items are controlled in ECCN 3A611.g.
(3) Multichip modules for which the pattern or layout is specially designed for defense articles in this subchapter;
Multichip modules for which the pattern or layout is specially designed for 600 series items are controlled in ECCN 3A611.h.
(4) Transmit/receive modules, transmit/receive monolithic microwave integrated circuits (MMICs), transmit modules, and transmit MMICs having all of the following:
(i) A peak saturated power output (in watts), Psat, greater than 505.62 divided by the maximum operating frequency (in GHz) squared [Psat > 505.62 W * GHz2/fGHz2] for any channel;
(ii) A fractional bandwidth of 5% or greater for any channel;
(iii) Any planar side with length d (in cm) equal to or less than 15 divided by the lowest operating frequency in GHz [d ≤ 15cm * GHz/fGHz]; and
(iv) At least one electronically variable phase shifter per channel.
A MMIC: (a) Is formed by means of diffusion processes, implantation processes, or deposition processes in or on a single semiconducting piece of material; (b) can be considered as indivisibly associated; (c) performs the function(s) of a circuit; and (d) operates at microwave frequencies (i.e., 300 MHz to 300 GHz).
A transmit/receive module is a multifunction electronic assembly that provides bi-directional amplitude and phase control for transmission and reception of signals.
A transmit module is an electronic assembly that provides amplitude and phase control for transmission of signals.
A transmit/receive MMIC is a multifunction MMIC that provides bi-directional amplitude and phase control for transmission and reception of signals.
A transmit MMIC is a MMIC that provides amplitude and phase control for transmission of signals.
USML Category XI(c)(4) applies to transmit/receive modules and to transmit modules, with or without a heat sink. The value of length d in USML Category XI(c)(4)(iii) does not include any portion of the transmit/receive module or transmit module that functions as a heat sink.
Transmit/receive modules, transmit modules, transmit/receive MMICs, and transmit MMICs may or may not have N integrated radiating antenna elements, where N is the number of transmit or transmit/receive channels.
Fractional bandwidth is the bandwidth over which output power remains constant within 3 dB (without the adjustment of other operating parameters), divided by the center frequency, and multiplied by 100. Fractional bandwidth is expressed as a percentage.
(5) High-energy storage capacitors with a repetition rate of 6 discharges or more per minute and full energy life greater than or equal to 10,000 discharges, at greater than 0.2 Amps per Joule peak current, that have any of the following:
(i) Volumetric energy density greater than or equal to 1.5 J/cc; or
(ii) Mass energy density greater than or equal to 1.3 kJ/kg;
(6) Radio frequency circulators of any dimension equal to or less than one quarter (
(7) Polarimeter that detects and measures polarization of radio frequency signals within a single pulse;
(8) Digital radio frequency memory (DRFM) with RF instantaneous input bandwidth greater than 400 MHz, and 4 bit or higher resolution whose output signal is a translation of the input signal (e.g., changes in magnitude, time, frequency) and specially designed parts and components therefor;
(9) Vacuum electronic devices, as follows:
(i) Multiple electron beam or sheet electron beam devices rated for operation at frequencies of 16 GHz or above, and with a saturated power output greater than 10,000 W (70 dBm) or a maximum average power output greater than 3,000 W (65 dBm); or
(ii) Cross-field amplifiers with a gain of 15 dB to 17 dB or a duty factor greater than 5%;
(10) Antenna, and specially designed parts and components therefor, that:
(i) Employ four or more elements, electronically steer angular beams, independently steer angular nulls, create angular nulls with a null depth greater than 20 dB, and achieve a beam switching speed faster than 50 milliseconds;
(ii) Form adaptive null attenuation greater than 35 dB with convergence time less than one second;
(iii) Detect signals across multiple RF bands with matched left hand and right hand spiral antenna elements for determination of signal polarization; or
(iv) Determine signal angle of arrival less than two degrees (e.g., interferometer antenna);
This category does not control Traffic Collision Avoidance Systems (TCAS) equipment conforming to FAA TSO C-119c.
(11) Radomes or electromagnetic antenna windows that:
(i) Incorporate radio frequency selective surfaces;
(ii) Operate in multiple non-adjacent frequency bands for radar applications;
(iii) Incorporate a structure that is specially designed to provide ballistic protection from bullets, shrapnel, or blast;
(iv) Have a melting point greater than 1,300 °C and maintain a dielectric constant less than 6 at temperatures greater than 500 °C;
(v) Are manufactured from ceramic materials with a dielectric constant less than 6 at any frequency from 100 MHz to 100 GHz (MT if usable in rockets, SLVs, or missiles capable of achieving a range greater than or equal to 300 km; or if usable in drones or UAVs capable of delivering a payload of at least 500 kg to a range of at least 300 km. See note 2 to paragraph (a)(3)(xxix) of this category);
(vi) Maintain structural integrity at stagnation pressures greater than 6,000 pounds per square foot; or
(vii) Withstand combined thermal shock greater than 4.184 × 10
(12) Underwater sensors (acoustic vector sensors, hydrophones, or transducers) or projectors, specially designed for systems controlled by paragraphs (a)(1) and (a)(2) of this category, having any of the following:
(i) A transmitting frequency below 10 kHz for sonar systems;
(ii) Sound pressure level exceeding 224 dB (reference 1 mPa at 1 m) for equipment with an operating frequency in the band from 10 kHz to 24 kHz inclusive;
(iii) Sound pressure level exceeding 235 dB (reference 1 mPa at 1 m) for equipment with an operating frequency in the band between 24 kHz and 30 kHz;
(iv) Forming beams of less than 1° on any axis and having an operating frequency of less than 100 kHz;
(v) Designed to operate with an unambiguous display range exceeding 5,120 m; or
(vi) Designed to withstand pressure during normal operation at depths exceeding 1,000 m and having transducers with any of the following:
(A) Dynamic compensation for pressure; or
(B) Incorporating other than lead zirconate titanate as the transduction element;
(13) Parts or components containing piezoelectric materials which are specially designed for underwater hardware, equipment, or systems controlled by paragraph (c)(12) of this category;
(14) Tuners specially designed for systems and equipment in paragraphs (a)(4) and (b) of this category;
(15) Electronic assemblies and components, capable of operation at temperatures in excess of 125 °C and specially designed for UAVs or drones controlled by USML Category VIII, rockets, space launch vehicles (SLV), or missiles controlled by USML Category IV capable of achieving a range greater than or equal to 300 km (MT) (see Note 2 to paragraph (a)(3)(xxix) of this category);
(16) Hybrid (combined analogue/digital) computers specially designed for modeling, simulation, or design integration of systems enumerated in paragraphs (a)(1), (d)(1), (d)(2), (h)(1), (h)(2), (h)(4), (h)(8), and (h)(9) of USML Category IV or paragraphs (a)(5), (a)(6), or (a)(13) of USML Category VIII (MT if for rockets, SLVs, missiles, drones, or UAVs capable of delivering a payload of at least 500 kg to a range of at least 300 km or their subsystems. See note 2 to paragraph (a)(3)(xxix) of this category);
(17) Chaff and flare rounds specially designed for the systems and equipment described in paragraph (a)(4)(iii) of this category, and parts and components therefor containing materials controlled in USML Category V;
(18) Parts, components, or accessories specially designed for an information assurance/information security system or radio controlled in this subchapter that modify its published properties (e.g., frequency range, algorithms, waveforms, CODECs, or modulation/demodulation schemes); or
* (19) Any part, component, accessory, attachment, equipment, or system that (MT for those articles designated as such):
(i) Is classified;
(ii) Contains classified software directly related to defense articles in this subchapter or 600 series items subject to the EAR; or
(iii) Is being developed using classified information.
Parts and components controlled by this paragraph are limited to those that store, process, or transmit classified software (see § 120.40(g) of this subchapter).
(d) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraphs (a) through (c) of this category and classified technical data directly related to items controlled in CCL ECCNs 3A611, 3B611, 3C611, and 3D611 and defense services using the classified technical data. (See § 125.4 of this subchapter for exemptions.) (MT for technical data and defense services related to articles designated as such.)
(e)-(w) [Reserved];
(x) Commodities, software, and technology subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).
Category XI does not control transmit/receive modules, transmit/receive MMICs, transmit modules, or transmit MMICs that incorporate or are MMICs fabricated exclusively with homojunction CMOS silicon-based circuits on silicon substrates, or radars and radar antennas specially designed to use only such modules or MMICs.
(a) Fire control, aiming, detection, guidance, and tracking systems, as follows:
* (1) Fire control systems;
* (2) Electronic or optical weapon positioning, laying, or spotting systems;
* (3) Laser spot trackers or laser spot detection, location, or imaging systems, with an operational wavelength shorter than 400 nm or longer than 710 nm and that are for laser target designators or coded target markers controlled in paragraph (b)(1);
For controls on LIDAR, see paragraph (b)(6) of this category.
* (4) Bomb sights or bombing computers;
* (5) Electro-optical systems that automatically detect and locate ordnance launch, blast, or fire;
* (6) Electro-optical ordnance guidance systems;
* (7) Missile or ordnance electro-optical tracking systems;
* (8) Remote wind-sensing systems specially designed for ballistic-corrected aiming; or
(9) Helmet mounted display (HMD) systems or end items (e.g., Combat Vehicle Crew HMD, Mounted Warrior HMD, Integrated Helmet Assembly Subsystem, Drivers Head Tracked Vision System), other than such items controlled in Category VIII, that:
(i) Incorporate or interface (either via wired or wireless connection) with optical sights or slewing devices that aim, launch, track, or manage munitions; or
(ii) Control infrared imaging systems or end items described in paragraphs (a) through (d) of this category.
* (b) Laser systems and end items, as follows:
(1) Laser target designators or coded target markers, that mediate the delivery of ordnance to a target;
(2) Target illumination systems having a variable beam divergence and a laser output wavelength exceeding 710 nm, to artificially light an area to search, locate, or track a target;
(3) Laser rangefinders having any of the following:
(i) Output wavelength of 1064 nm and any Q-switched pulse output; or
(ii) Output wavelength exceeding 1064 nm and any of the following:
(A) Single or multiple shot(s) within one second ranging capability of 3 km or greater against a standard 2.3 m x 2.3 m NATO target having 10% reflectivity and 23 km atmospheric visibility; or
(B) Multiple shot ranging capability at 3 Hz or greater of 1 km or greater against a standard 2.3 m x 2.3 m NATO target having 10% reflectivity and 23 km atmospheric visibility;
(4) Targeting systems and target location systems, incorporating or specially designed to incorporate both of the following:
(i) A laser rangefinder; and
(ii) A defense article controlled in paragraph (d) of this category (MT if designed or modified for rockets, missiles, space launch vehicles (SLVs), drones, or unmanned aerial vehicle systems capable of delivering at least a 500 kg payload to a range of at least 300 km);
(5) Systems specially designed to use laser energy with an output wavelength exceeding 710 nm for exploiting differential target-background retroreflectance in order to detect optical/electro-optical equipment (e.g., optical augmentation systems);
(6) Light detection and ranging (LIDAR), laser detection and ranging (LADAR), or range-gated systems, specially designed for a military end user
(MT if designed or modified for rockets, missiles, SLVs, drones, or unmanned aerial vehicle systems capable of delivering at least a 500 kg payload to a range of at least 300 km); or
(7) Developmental lasers or laser systems funded by the Department of Defense via contract or other funding authorization.
This paragraph does not control lasers or laser systems: (a) In production, (b) determined to be subject to the EAR via a Commodity Jurisdiction determination, or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This provision is applicable to those contracts or other funding authorizations that are dated October 12, 2017 or later.
* (c) Imaging systems or end items, as follows:
(1) Binoculars, bioculars, monoculars, goggles, or head or helmet-mounted imaging systems (including video-based articles having a separate near-to-eye display), as follows:
(i) Employing an autogated third generation image intensifier tube or a higher generation image intensifier tube;
(ii) Fusing output of an image intensifier tube and an infrared focal plane array having a peak response wavelength greater than 1,000 nm; or
(iii) Having an infrared focal plane array or infrared imaging camera, and specially designed for a military end user;
(2) Weapon sights (i.e., with a reticle) or aiming or imaging systems (e.g., clip-on), specially designed to mount to a weapon or to withstand weapon shock or recoil, with or without an integrated viewer or display, and also incorporating or specially designed to incorporate any of the following:
(i) An infrared focal plane array having a peak response wavelength exceeding 1,000 nm;
(ii) Second generation with luminous sensitivity greater than 350 µA/lm, third generation, or higher generation, image intensifier tubes;
(iii) Ballistic computing electronics for adjusting the aim point display; or
(iv) Infrared laser having a wavelength exceeding 710 nm;
(3) Electro-optical reconnaissance, surveillance, target detection, or target acquisition systems, specially designed for articles in this subchapter or specially designed for a military end user (MT if for determining bearings to specific electromagnetic sources (direction finding equipment) or terrain characteristics and designed or modified for rockets, missiles, SLVs, drones, or unmanned aerial vehicle systems capable of delivering at least a 500 kg payload to a range of at least 300 km);
(4) Infrared search and track (IRST) systems having one of the following:
(i) Airborne or naval systems, that:
(A) Have range performance of 3 km or greater;
(B) Incorporate or are specially designed to incorporate an infrared focal plane array or imaging camera, having a peak response wavelength exceeding 3 microns or greater; and
(C) Maintain positional or angular state of a target through time; or
(ii) Specially designed for a military end user;
(5) Distributed aperture systems having a peak response wavelength exceeding 710 nm specially designed for articles in this subchapter or specially designed for a military end user;
(6) Infrared imaging systems, as follows:
(i) Mobile reconnaissance, scout, or surveillance systems providing real-time target recognition at ranges greater than 3 km (e.g., LRAS, CIV, HTI, SeeSpot, MMS);
Target is defined as a NATO standard tank target having a frontal cross-section of 2.3 x 2.3 meters, and a side cross-section of 2.3 x 6.4 meters.
(ii) Airborne stabilized systems specially designed for military reconnaissance (e.g., DB-110, C-B4);
(iii) Multispectral imaging systems that provide automated classification or identification of military or intelligence targets or characteristics;
(iv) Automated missile detection or warning systems;
(v) Systems hardened to withstand electromagnetic pulse (EMP), directed energy, chemical, biological, or radiological threats;
(vi) Systems incorporating mechanism(s) to reduce the optical chain signature for optical augmentation;
(vii) Persistent surveillance systems with a ground sample distance (GSD) of 0.5 m or better (smaller) at 10,000 ft or higher above ground level and a simultaneous coverage area of 3 km
(viii) Gimbaled infrared systems, as follows:
(A) Having a stabilization better (less) than 30 microradians RMS and a turret with a ball diameter of 15 inches or greater; or
(B) Specially designed for articles in this subchapter or specially designed for a military end user;
(7) Terahertz imaging systems as follows:
(i) Concealed object detection systems operating in the frequency range from 30 GHz to 3000 GHz, and having a resolution less (better) than 0.1 milliradians at a standoff range of 100 m; or
(ii) Specially designed for a military end user;
(8) Systems or equipment, incorporating an ultraviolet or infrared (IR) beacon or emitter, specially designed for Combat Identification;
(9) Systems that project radiometrically calibrated scenes at a frame rate greater than 30 Hz directly into the entrance aperture of an electro-optical or infrared (EO/IR) sensor controlled in this subchapter within either the spectral band exceeding 10 nm but not exceeding 400 nm, or the spectral band exceeding 900 nm but not exceeding 30,000 nm;
(10) Developmental electro-optical, infrared, or terahertz systems funded by the Department of Defense.
This paragraph does not control electro-optical, infrared, or terahertz imaging systems: (a) In production, (b) determined to be subject to the EAR via a Commodity Jurisdiction determination, or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This provision is applicable to those contracts or other funding authorizations that are dated October 12, 2017 or later.
(d) Guidance and navigation systems or end items, as follows:
(1) Guidance or navigation systems (e.g., inertial navigation systems, inertial reference units, attitude and heading reference systems) having any of the following:
(i) A circular error probability at fifty percent (CEP50) of position error rate less (better) than 0.28 nautical miles per hour, without the use of positional aiding references;
(ii) A heading error or true north determination of less (better) than 0.28 mrad secant (latitude) (0.016043 degrees secant (latitude)), without the use of positional aiding references;
(iii) A CEP50 of position error rate less than 0.2 nautical miles in an 8 hour period, without the use of positional aiding references; or
(iv) Meeting or exceeding specified performance at linear acceleration levels exceeding 25g (MT if designed or modified for rockets, missiles, SLVs, drones, or unmanned aerial vehicle systems capable of a range greater than or equal to 300 km or incorporating accelerometers specified in paragraph (e)(11) or gyroscopes or angular rate sensors specified in paragraph (e)(12) of this category that are designated MT);
For rocket, SLV, or missile flight control and guidance systems (including guidance sets), see Category IV(h).
Inertial measurement units are described in paragraph (e) of this category.
(2) Global Navigation Satellite System (GNSS) receiving equipment, as follows:
(i) GNSS receiving equipment specially designed for military applications (MT if designed or modified for airborne applications and capable of providing navigation information at speeds in excess of 600 m/s);
(ii) Global Positioning System (GPS) receiving equipment specially designed for encryption or decryption (e.g., Y-Code, M-Code) of GPS precise positioning service (PPS) signals (MT if designed or modified for airborne applications);
(iii) GNSS receiving equipment specially designed for use with an antenna described in Category XI(c)(10) (MT if designed or modified for airborne applications); or
(iv) GNSS receiving equipment specially designed for use with rockets, missiles, SLVs, drones, or unmanned air vehicle systems capable of delivering at least a 500 kg payload to a range of at least 300 km (MT);
“Payload” is the total mass that can be carried or delivered by the specified rocket, missile, SLV, drone, or unmanned aerial vehicle that is not used to maintain flight. For definition of “range” as it pertains to rocket systems, see Note 1 to paragraph (a) of USML Category IV. For definition of “range” as it pertains to aircraft systems, see Note 2 to paragraph (a) of USML Category VIII.
(3) GNSS anti-jam systems specially designed for use with an antenna described in Category XI(c)(10);
(4) Mobile relative gravimeters having automatic motion compensation with an in-service accuracy of less (better) than 0.4 mGal (MT if designed or modified for airborne or marine use and having a time to steady-state registration of two minutes or less);
(5) Mobile gravity gradiometers having an accuracy of less (better) than 10 Eotvos squared per radian per second for any component of the gravity gradient tensor, and having a spatial gravity wavelength resolution of 50 m or less (MT if designed or modified for airborne or marine use);
“Eotvos” is a unit of acceleration divided by distance that was used in conjunction with the older centimeter-gram-second system of units. The Eotvos is defined as
(6) Developmental guidance or navigation systems funded by the Department of Defense (MT if designed or modified for rockets, missiles, SLVs, drones, or unmanned aerial vehicle systems capable of a range equal to or greater than 300 km).
This paragraph does not control guidance or navigation systems: (a) in production, (b) determined to be subject to the EAR via a Commodity Jurisdiction determination, or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This provision is applicable to those contracts or other funding authorizations that are dated October 12, 2017 or later.
For definition of “range” as it pertains to rocket systems, see Note 1 to paragraph (a) of USML Category IV. For definition of “range” as it pertains to aircraft systems, see Note 2 to paragraph (a) of USML Category VIII.
(e) Parts, components, accessories, or attachments, as follows:
(1) Parts and components specially designed for articles described in paragraph (a)(1) or (a)(5) of this category;
(2) Lasers specially designed for articles in this subchapter;
(3) Laser stacked arrays specially designed for articles in this subchapter;
(4) Night vision or infrared cameras (e.g., camera core) specially designed for articles in this subchapter;
The articles controlled by this paragraph have sufficient electronics to enable at a minimum the output of an analog or digital signal once power is applied.
(5) Infrared focal plane arrays specially designed for articles in this subchapter;
(6) Charge multiplication focal plane arrays exceeding 50 mA/W for any wavelength exceeding 760 nm and specially designed for articles described in this subchapter;
(7) Second generation and greater image intensifier tubes specially designed for articles in this subchapter, and specially designed parts and components therefor;
Second and third generation image intensifier tubes are defined as having a peak response within the 0.4 to 1.05 micron wavelength range and incorporating a microchannel plate for electron image amplification having a hole pitch (center-to-center spacing) of less than 25 microns and having either: (a) an S-20, S-25, or multialkali photo cathode; or (b) a GaAs, GaInAs, or other III-V compound semiconductor photocathode.
(8) Parts and components specially designed for articles described in paragraph (c)(3), (c)(4), (c)(5) or (c)(6)(vi)-(vii) of this category;
(9) Inertial measurement units specially designed for articles in this subchapter (MT for systems incorporating accelerometers specified in paragraph (e)(11) or gyroscopes or angular rate sensors specified in paragraph (e)(12) that are designated MT);
(10) GNSS security devices (e.g., Selective Availability Anti-Spoofing Modules (SAASM), Security Modules (SM), and Auxiliary Output Chips (AOC));
(11) Accelerometers having a bias repeatability of less (better) than 10 µg and a scale factor repeatability of less (better) than 10 parts per million, or capable of measuring greater than 100,000 g (MT);
For weapon fuze accelerometers, see Category III(d) or IV(h).
MT designation does not include accelerometers that are designed to measure vibration or shock.
(12) Gyroscopes or angular rate sensors as follows:
(i) Having an angle random walk of less (better) than 0.001 degrees per square root hour; or
(ii) Mechanical gyroscopes or rate sensors having a bias repeatability less (better) than 0.0015 degrees per hour (MT if having a rated drift stability of less than 0.5 degrees (1 sigma or rms) per hour in a 1 g environment or specified to function at acceleration levels greater than 100 g);
“Repeatability” is the closeness of agreement among repeated measurements of the same variable under the same operating conditions when changes in conditions or non-operating periods occur between measurements.
“Bias” is the accelerometer output when no acceleration is applied.
“Scale factor” is the ratio of change in output to a change in the input.
The measurements of “bias” and “scale factor” refer to one sigma standard deviation with respect to a fixed calibration over a period of one year.
“Drift Rate” is the component of gyro output that is functionally independent of input rotation and is expressed as an angular rate.
“Stability” is a measure of the ability of a specific mechanism or performance coefficient to remain invariant when continuously exposed to a fixed operating condition. (This definition does not refer to dynamic or servo stability.)
(13) Optical sensors having a spectral filter specially designed for systems or equipment controlled in USML Category XI(a)(4), or optical sensor assemblies that provide threat warning or tracking for systems or equipment controlled in Category XI(a)(4);
(14) Infrared focal plane array read-out integrated circuits (ROICs) specially designed for articles in this subchapter;
(15) Integrated dewar cooler assemblies specially designed for articles in this subchapter, with or without an infrared focal plane array, and specially designed parts and components therefor;;
(16) Gimbals specially designed for articles in this category;
(17) Infrared focal plane array Joule-Thomson (JT) self-regulating cryostats specially designed for articles controlled in this subchapter;
(18) Infrared lenses, mirrors, beam splitters or combiners, filters, and treatments and coatings, specially designed for articles controlled in this category;
For the purposes of this paragraph, treatments and coatings may be analyzed as a part, component, accessory, or attachment under paragraph (b) of § 120.41 to determine if they are specially designed.
(19) Drive, control, signal, or image processing electronics, specially designed for articles controlled in this category;
(20) Near-to-eye displays (e.g., micro-displays) specially designed for articles controlled in this category;
(21) Resonators, receivers, transmitters, modulators, gain media, drive electronics, and frequency converters, specially designed for laser systems controlled in this category;
(22) Two-dimensional infrared scene projector emitter arrays (i.e., resistive arrays) specially designed for infrared scene generators controlled in USML Category IX(a)(10);
* (23) Any part, component, accessory, attachment, or associated equipment, that:
(i) Is classified;
(ii) Contains classified software;
(iii) Is manufactured using classified production data; or
(iv) Is being developed using classified information.
(24) Developmental image intensifier tubes, focal plane arrays, read-out-integrated circuits, accelerometers, gyroscopes, angular rate sensors, and inertial measurement units funded by the Department of Defense (MT if designed or modified for rockets, missiles, SLVs, drones, or unmanned aerial vehicle systems capable of a range equal to or greater than 300 km).
This paragraph does not control items: (a) In production, (b) determined to be subject to the EAR via a Commodity Jurisdiction determination, or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This provision is applicable to those contracts or other funding authorizations that are dated October 12, 2017 or later.
(f) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraphs (a) through (e) of this category and classified technical data directly related to items controlled in ECCNs 7A611, 7B611, and 7D611. (See § 125.4 for exemptions.) (MT for technical data and defense services related to articles designated as such.)
(g)-(w) [Reserved]
(x) Commodities, software, and technology subject to the EAR used in or with defense articles controlled in this category.
Use of this paragraph is limited to license applications for defense articles controlled in this category where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).
For purposes of paragraphs (b)(6), (c)(1)(iii), (c)(3), (c)(4)(ii), (c)(5), (c)(6)(viii)(b), and (c)(7)(ii) of this category, a “military end user” means the national armed services (army, navy, marine, air force, or coast guard), national guard, national police, government intelligence or reconnaissance organizations, or any person or entity whose actions or functions are intended to support military end uses. A system or end item is not specially designed for a military end user if the item was developed with knowledge that it is or would be for use by both military end users and non-military end users, or if the item was or is being developed with no knowledge of use by a particular end user. For the purpose of conducting a self-determination of jurisdiction, documents contemporaneous with the development must establish such knowledge. For the purpose of a Commodity Jurisdiction determination, the government may base a determination on post-development information that evidences such knowledge or is otherwise consistent with §§ 120.4 and 120.12 of this subchapter.
(a) [Reserved]
(b) Information security or information assurance systems and equipment, cryptographic devices, software, and components, as follows:
(1) Military or intelligence cryptographic (including key management) systems, equipment, assemblies, modules, integrated circuits, components, and software (including their cryptographic interfaces) capable of maintaining secrecy or confidentiality of information or information systems, including equipment or software for tracking, telemetry, and control (TT&C) encryption and decryption;
(2) Military or intelligence cryptographic (including key management) systems, equipment, assemblies, modules, integrated circuits, components, and software (including their cryptographic interfaces) capable of generating spreading or hopping codes for spread spectrum systems or equipment;
(3) Military or intelligence cryptanalytic systems, equipment, assemblies, modules, integrated circuits, components and software;
(4) Military or intelligence systems, equipment, assemblies, modules, integrated circuits, components, or software (including all previous or derived versions) authorized to control access to or transfer data between different security domains as listed on the Unified Cross Domain Management Office (UCDMO) Control List (UCL); or
(5) Ancillary equipment specially designed for the articles in paragraphs (b)(1)-(b)(4) of this category.
(c) [Reserved]
(d) Materials, as follows:
* (1) Ablative materials fabricated or semi-fabricated from advanced composites (e.g., silica, graphite, carbon, carbon/carbon, and boron filaments) specially designed for the articles in USML Category IV or XV (MT if usable for nozzles, re-entry vehicles, nose tips, or nozzle flaps usable in rockets, space launch vehicles (SLVs), or missiles capable of achieving a range greater than or equal to 300 km); or
(2) Carbon/carbon billets and preforms that are reinforced with continuous unidirectional fibers, tows, tapes, or woven cloths in three or more dimensional planes (MT if designed for rocket, SLV, or missile systems and usable in rockets, SLVs, or missiles capable of achieving a range greater than or equal to 300 km).
“Range” is the maximum distance that the specified rocket system is capable of traveling in the mode of stable flight as measured by the projection of its trajectory over the surface of the Earth. The maximum capability based on the design characteristics of the system, when fully loaded with fuel or propellant, will be taken into consideration in determining range. The range for rocket systems will be determined independently of any external factors such as operational restrictions, limitations imposed by telemetry, data links, or other external constraints. For rocket systems, the range will be determined using the trajectory that maximizes range, assuming International Civil Aviation Organization (ICAO) standard atmosphere with zero wind.
This paragraph does not control carbon/carbon billets and preforms where reinforcement in the third dimension is limited to interlocking of adjacent layers only.
(e) Armor (e.g., organic, ceramic, metallic) and armor materials, as follows:
(1) Spaced armor with E
(2) Transparent armor having E
(3) Transparent ceramic plate greater than
(4) Non-transparent ceramic plate or blanks, greater than
(5) Composite armor with E
(6) Metal laminate armor with E
(7) Developmental armor funded by the Department of Defense via contract or other funding authorization.
This paragraph does not control armor (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination, or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the USML, whether in production or development.
This provision is applicable to those contracts and funding authorizations that are dated July 8, 2014, or later.
* (f) Any article enumerated in this category that (MT for those articles designated as such):
(i) Is classified;
(ii) Contains classified software directly related to defense articles in this subchapter or 600 series items subject to the EAR; or
(iii) Is being developed using classified information.
* (g) Concealment and deception equipment, as follows (MT for applications usable for rockets, SLVs, missiles, drones, or unmanned aerial vehicles (UAVs) capable of achieving a range greater than or equal to 300 km and their subsystems. See note to paragraph (d) of this category):
(1) Polymers loaded with carbonyl iron powder, ferrites, iron whiskers, fibers, flakes, or other magnetic additives having a surface resistivity of less than 5000 ohms/square and greater than 10 ohms/square with electrical isotropy of less than 5%;
(2) Multi-layer camouflage systems specially designed to reduce detection of platforms or equipment in the infrared or ultraviolet frequency spectrums;
(3) High temperature (greater than 300 °F operation) ceramic or magnetic radar absorbing material (RAM) specially designed for use on defense articles or military items subject to the EAR; or
(4) Broadband (greater than 30% bandwidth) lightweight (less than 2 lbs/sq ft) magnetic radar absorbing material (RAM) specially designed for use on defense articles or military items subject to the EAR.
(h) Energy conversion devices not otherwise enumerated in this subchapter, as follows:
(1) Fuel cells specially designed for platforms or soldier systems specified in this subchapter;
(2) Thermal engines specially designed for platforms or soldier systems specified in this subchapter;
(3) Thermal batteries (MT if designed or modified for rockets, SLVs, missiles, drones, or UAVs capable of achieving a range equal to or greater than 300 km. See note to paragraph (d) of this category); or
Thermal batteries are single use batteries that contain a solid non-conducting inorganic salt as the electrolyte. These batteries incorporate a pyrolitic material that, when ignited, melts the electrolyte and activates the battery.
(4) Thermionic generators specially designed for platforms or soldier systems enumerated in this subchapter.
* (i) Signature reduction software, and technical data as follows (MT for software specially designed for reduced observables, for applications usable for rockets, SLVs, missiles, drones, or UAVs capable of achieving a range (see note to paragraph (d) of this category) greater than or equal to 300 km, and their subsystems, including software specially designed for analysis of signature reduction; MT for technical data for the development, production, or use of equipment, materials, or software designated as such, including databases specially designed for analysis of signature reduction):
(1) Software associated with the measurement or modification of system signatures for defense articles to reduce detectability or observability;
(2) Software for design of low-observable platforms;
(3) Software for design, analysis, prediction, or optimization of signature management solutions for defense articles;
(4) Infrared signature measurement or prediction software for defense articles or radar cross section measurement or prediction software;
(5) Signature management technical data, including codes and algorithms for defense articles to reduce detectability or observability;
(6) Signature control design methodology (see § 120.43(c) of this subchapter) for defense articles to reduce detectability or observability;
(7) Technical data for use of micro-encapsulation or micro-spheres to reduce infrared, radar, or visual detection of platforms or equipment;
(8) Multi-layer camouflage system technical data for reducing detection of platforms or equipment;
(9) Multi-spectral surface treatment technical data for modifying infrared, visual or radio frequency signatures of platforms or equipment;
(10) Technical data for modifying visual, electro-optical, radiofrequency, electric, magnetic, electromagnetic, or wake signatures (e.g., low probability of intercept (LPI) techniques, methods or applications) of defense platforms or equipment through shaping, active, or passive techniques; or
(11) Technical data for modifying acoustic signatures of defense platforms or equipment through shaping, active, or passive techniques.
(j) Equipment, materials, coatings, and treatments not elsewhere specified, as follows:
(1) Specially treated or formulated dyes, coatings, and fabrics used in the design, manufacture, or production of personnel protective clothing, equipment, or face paints designed to protect against or reduce detection by radar, infrared, or other sensors at wavelengths greater than 900 nanometers (see USML Category X(a)(2)); or
* (2) Equipment, materials, coatings, and treatments that are specially designed to modify the electro-optical, radiofrequency, infrared, electric, laser, magnetic, electromagnetic, acoustic, electro-static, or wake signatures of defense articles or 600 series items subject to the EAR through control of absorption, reflection, or emission to reduce detectability or observability (MT for applications usable for rockets, SLVs, missiles, drones, or UAVs capable of achieving a range greater than or equal to 300 km, and their subsystems. See note to paragraph (d) of this category).
* (k) Tooling and equipment, as follows:
(1) Tooling and equipment specially designed for production of low observable (LO) components; or
(2) Portable platform signature field repair validation equipment (e.g., portable optical interrogator that validates integrity of a repair to a signature reduction structure).
(l) Technical data (see § 120.33 of this subchapter) directly related to the defense articles described in paragraphs (a) through (h), (j), and (k) of this category and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in this category (see also § 120.5(c) of this subchapter for nuclear related controls). (MT for technical data and defense services related to articles designated as such.)
(m) The following interpretations explain and amplify terms used in this category and elsewhere in this subchapter:
(1) Composite armor is defined as having more than one layer of different materials or a matrix.
(2) Spaced armors are metallic or non-metallic armors that incorporate an air space or obliquity or discontinuous material path effects as part of the defeat mechanism.
(3) Reactive armor employs explosives, propellants, or other materials between plates for the purpose of enhancing plate motion during a ballistic event or otherwise defeating the penetrator.
(4) Electromagnetic armor (EMA) employs electricity to defeat threats such as shaped charges.
(5) Materials used in composite armor could include layers of metals, plastics, elastomers, fibers, glass, ceramics, ceramic-glass reinforced plastic laminates, encapsulated ceramics in a metallic or non-metallic matrix, functionally gradient ceramic-metal materials, or ceramic balls in a cast metal matrix.
(6) For this category, a material is considered transparent if it allows 75% or greater transmission of light, corrected for index of refraction, in the visible spectrum through a 1 mm thick nominal sample.
(7) The material controlled in paragraph (e)(4) of this category has not been treated to reach the 75% transmission level referenced in (m)(6) of this category.
(8) Metal laminate armors are two or more layers of metallic materials which are mechanically or adhesively bonded together to form an armor system.
(9) E
(10) NIJ is the National Institute of Justice and Level III refers to the requirements specified in NIJ standard 0108.01 Ballistic Resistant Protective Materials.
(n)-(w) [Reserved]
(x) Commodities, software, and technical data subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technical data subject to the EAR (see § 123.1(b) of this subchapter).
* (a) Chemical agents, as follows:
(1) Nerve agents, as follows:
(i) O-Alkyl (equal to or less than C
(ii) O-Alkyl (equal to or less than C
(iii) O-Alkyl (H or equal to or less than C
(2) Amiton: O,O-Diethyl S-[2(diethylamino)ethyl] phosphorothiolate and corresponding alkylated or protonated salts (CAS 78-53-5) (CWC Schedule 2A);
(3) Vesicant agents, as follows:
(i) Sulfur mustards, such as: 2-Chloroethylchloromethylsulfide (CAS 2625-76-5) (CWC Schedule 1A); Bis(2-chloroethyl)sulfide (HD) (CAS 505-60-2) (CWC Schedule 1A); Bis(2-chloroethylthio)methane (CAS 63839-13-6) (CWC Schedule 1A); 1,2-bis (2-chloroethylthio)ethane (CAS 3563-36-8) (CWC Schedule 1A); 1,3-bis (2-chloroethylthio)-n-propane (CAS 63905-10-2) (CWC Schedule 1A); 1,4-bis (2-chloroethylthio)-n-butane (CWC Schedule 1A); 1,5-bis (2-chloroethylthio)-n-pentane (CWC Schedule 1A); Bis (2-chloroethylthiomethyl)ether (CWC Schedule 1A); Bis (2-chloroethylthioethyl)ether (CAS 63918-89-8) (CWC Schedule 1A);
(ii) Lewisites, such as: 2-chlorovinyldichloroarsine (CAS 541-25-3) (CWC Schedule 1A); Tris (2-chlorovinyl) arsine (CAS 40334-70-1) (CWC Schedule 1A); Bis (2-chlorovinyl) chloroarsine (CAS 40334-69-8) (CWC Schedule 1A);
(iii) Nitrogen mustards, or their protonated salts, as follows:
(A) HN1: Bis (2-chloroethyl) ethylamine (CAS 538-07-8) (CWC Schedule 1A);
(B) HN2: Bis (2-chloroethyl) methylamine (CAS 51-75-2) (CWC Schedule 1A);
(C) HN3: Tris (2-chloroethyl) amine (CAS 555-77-1) (CWC Schedule 1A); or
(D) Other nitrogen mustards, or their salts, having a propyl, isopropyl, butyl, isobutyl, or tertiary butyl group on the bis(2-chloroethyl) amine base;
Pharmaceutical formulations containing nitrogen mustards or certain reference standards for these formulations are not considered to be chemical agents and are subject to the EAR when: (1) The pharmaceutical is in the form of a final medical product; or (2) the reference standard contains salts of HN2 [bis(2-chloroethyl) methylamine], the quantity to be shipped is 150 milligrams or less, and individual shipments do not exceed twelve per calendar year per end user.
A “final medical product,” as used in this paragraph, is a pharmaceutical formulation that is (1) designed for testing and administration in the treatment of human medical conditions, (2) prepackaged for distribution as a clinical or medical product, and (3) approved for marketing by the Food and Drug Administration or has a valid investigational new drug application (IND) in effect, in accordance with 21 CFR part 312.
(iv) Ethyldichloroarsine (ED) (CAS 598-14-1); or
(v) Methyldichloroarsine (MD) (CAS 593-89-5);
(4) Incapacitating agents, such as:
(i) 3-Quinuclindinyl benzilate (BZ) (CAS 6581-06-2) (CWC Schedule 2A);
(ii) Diphenylchloroarsine (DA) (CAS 712-48-1); or
(iii) Diphenylcyanoarsine (DC) (CAS 23525-22-6);
(5) Chemical warfare agents not enumerated above adapted for use in war to produce casualties in humans or animals, degrade equipment, or damage crops or the environment. (See the CCL at ECCNs 1C350, 1C355, and 1C395 for control of certain chemicals not adapted for use in war.)
“Adapted for use in war” means any modification or selection (such as altering purity, shelf life, dissemination characteristics, or resistance to ultraviolet radiation) designed to increase the effectiveness in producing casualties in humans or animals, degrading equipment, or damaging crops or the environment.
Paragraph (a) of this category does not include the following: Cyanogen chloride, Hydrocyanic acid, Chlorine, Carbonyl chloride (Phosgene), Ethyl bromoacetate, Xylyl bromide, Benzyl bromide, Benzyl iodide, Chloro acetone, Chloropicrin (trichloronitromethane), Fluorine, and Liquid pepper.
Regarding U.S. obligations under the Chemical Weapons Convention (CWC), refer to Chemical Weapons Convention Regulations (CWCR) (15 CFR parts 710 through 721). As appropriate, the CWC schedule is provided to assist the exporter.
* (b) Biological agents and biologically derived substances and genetic elements thereof as follows:
(1) Genetically modified biological agents:
(i) Having non-naturally occurring genetic modifications that are known to or are reasonably expected to result in an increase in any of the following:
(A) Persistence in a field environment (i.e., resistance to oxygen, UV damage, temperature extremes, arid conditions, or decontamination processes); or
(B) The ability to defeat or overcome standard detection methods, personnel protection, natural or acquired host immunity, host immune response, or response to standard medical countermeasures; and
(ii) Being any micro-organisms/toxins or their non-naturally occurring genetic elements as listed below:
(A) Bacillus anthracis;
(B) Botulinum neurotoxin producing species of Clostridium;
(C) Burkholderia mallei;
(D) Burkholderia pseudomallei;
(E) Ebola virus;
(F) Foot-and-mouth disease virus;
(G) Francisella tularensis;
(H) Marburg virus;
(I) Variola major virus (Smallpox virus);
(J) Variola minor virus (Alastrim);
(K) Yersinia pestis; or
(L) Rinderpest virus.
(2) Biological agent or biologically derived substances controlled in ECCNs 1C351, 1C353, or 1C354:
(i) Physically modified, formulated, or produced as any of the following:
(A) 1-10 micron particle size;
(B) Particle-absorbed or combined with nano-particles;
(C) Having coatings/surfactants, or
(D) By microencapsulation; and
(ii) Meeting the criteria of paragraph (b)(2)(i) of this category in a manner that is known to or is reasonably expected to result in an increase in any of the following:
(A) Persistence in a field environment (i.e., resistant to oxygen, UV damage, temperature extremes, arid conditions, or decontamination processes);
(B) Dispersal characteristics (e.g., reduced susceptibility to shear forces, optimized electrostatic charges); or
(C) The ability to defeat or overcome: standard detection methods, personnel protection, natural or acquired host immunity, or response to standard medical countermeasures.
Non-naturally occurring means that the modification has not already been observed in nature, was not discovered from samples obtained from nature, and was developed with human intervention.
This paragraph does not control biological agents or biologically derived substances when these agents or substances have been demonstrated to be attenuated relative to natural pathogenic isolates and are incapable of causing disease or intoxication of ordinarily affected and relevant species (e.g., humans, livestock, crop plants) due to the attenuation of virulence or pathogenic factors. This paragraph also does not control genetic elements, nucleic acids, or nucleic acid sequences (whether recombinant or synthetic) that are unable to produce or direct the biosynthesis of infectious or functional forms of the biological agents or biologically derived substances that are capable of causing disease or intoxication of ordinarily affected and relevant species.
Biological agents or biologically derived substances that meet both paragraphs (b)(1) and (b)(2) of this category are controlled in paragraph (b)(1).
* (c) Chemical agent binary precursors and key precursors, as follows:
(1) Alkyl (Methyl, Ethyl, n-Propyl or Isopropyl) phosphonyl difluorides, such as: DF: Methyl Phosphonyldifluoride (CAS 676-99-3) (CWC Schedule 1B); Methylphosphinyldifluoride (CAS 753-59-3) (CWC Schedule 2B);
(2) O-Alkyl (H or equal to or less than C
(3) Chlorosarin: O-Isopropyl methylphosphonochloridate (CAS 1445-76-7) (CWC Schedule 1B);
(4) Chlorosoman: O-Pinacolyl methylphosphonochloridate (CAS 7040-57-5) (CWC Schedule 1B); or
(5) Methylphosphonyl dichloride (CAS 676-97-1) (CWC Schedule 2B); Methylphosphinyldichloride (CAS 676-83-5) (CWC Schedule 2B).
(d) [Reserved]
(e) Defoliants, as follows:
(1) 2,4,5-trichlorophenoxyacetic acid (CAS 93-76-5) mixed with 2,4-dichlorophenoxyacetic acid (CAS 94-75-7) (Agent Orange (CAS 39277-47-9)); or
(2) Butyl 2-chloro-4-fluorophenoxyacetate (LNF).
* (f) Parts, components, accessories, attachments, associated equipment, materials, and systems, as follows:
(1) Any equipment for the dissemination, dispersion, or testing of articles controlled in paragraphs (a), (b), (c), or (e) of this category, as follows:
(i) Any equipment “specially designed” for the dissemination and dispersion of articles controlled in paragraphs (a), (b), (c), or (e) of this category; or
(ii) Any equipment “specially designed” for testing the articles controlled in paragraphs (a), (b), (c), (e), or (f)(4) of this category and developed under a Department of Defense contract or other funding authorization.
(2) Any equipment, containing reagents, algorithms, coefficients, software, libraries, spectral databases, or alarm set point levels developed under a Department of Defense contract or other funding authorization, for the detection, identification, warning, or monitoring of:
(i) Articles controlled in paragraphs (a) or (b) of this category; or
(ii) Chemical agents or biological agents specified in the Department of Defense contract or other funding authorization.
This paragraph does not control articles that are (a) determined to be subject to the EAR via a commodity jurisdiction determination, or (b) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the USML.
(3) [Reserved]
(4) For individual protection or collective protection against the articles controlled in paragraphs (a) and (b) of this category, as follows:
(i) M53 Chemical Biological Protective Mask or M50 Joint Service General Purpose Mask (JSGPM);
(ii) Filter cartridges containing sorbents controlled in paragraph (f)(4)(iii) or (n) of this category;
(iii) Carbon meeting MIL-DTL-32101 specifications (e.g., ASZM-TEDA carbon); or
(iv) Ensembles, garments, suits, jackets, pants, boots, or socks for individual protection, and liners for collective protection that allow no more than 1% breakthrough of GD or no more than 2% breakthrough of any other chemical controlled in paragraph (a) of this category, when evaluated by executing the applicable standard method(s) of testing described in the current version of Test Operating Protocols (TOPs) 08-2-201 or 08-2-501 and using the defined Department of Defense-specific requirements;
(5)-(6) [Reserved]
(7) Chemical Agent Resistant Coatings that have been qualified to military specifications (MIL-PRF-32348, MIL-DTL-64159, MIL-C-46168, or MIL-DTL-53039); or
(8) Any part, component, accessory, attachment, equipment, or system that:
(i) Is classified;
(ii) Is manufactured using classified production data; or
(iii) Is being developed using classified information.
(g) Antibodies, recombinant protective antigens, polynucleotides, biopolymers, or biocatalysts (including their expression vectors, viruses, plasmids, or cultures of specific cells modified to produce them) as follows:
(1) When exclusively funded by a Department of Defense contract for detection of the biological agents at paragraph (b)(1)(ii) of this category even if naturally occurring;
(2) Joint Biological Agent Identification and Diagnostic System (JBAIDS) Freeze Dried reagents listed by JRPD-ASY-No and Description respectively as follows:
(i) JRPD-ASY-0016 Q-Fever IVD Kit;
(ii) JRPD-ASY-0100 Vaccinia (Orthopox);
(iii) JRPD-ASY-0106 Brucella melitensis (Brucellosis);
(iv) JRPD-ASY-0108 Rickettsia prowazekii (Rickettsia);
(v) JRPD-ASY-0109 Burkholderia ssp. (Burkholderia);
(vi) JRPD-ASY-0112 Eastern equine encephalitis (EEE);
(vii) JRPD-ASY-0113 Western equine encephalitis (WEE);
(viii) JRPD-ASY-0114 Venezuelan equine encephalitis (VEE);
(ix) JRPD-ASY-0122 Coxiella burnetii (Coxiella);
(x) JRPD-ASY-0136 Influenza A/H5 IVD Detection Kit;
(xi) JRPD-ASY-0137 Influenza A/B IVD Detection Kit; or
(xii) JRPD-ASY-0138 Influenza A Subtype IVD Detection Kit;
(3) Critical Reagent Polymerase (CRP) Chain Reactions (PCR) assay kits with Catalog-ID and Catalog-ID Product respectively as follows:
(i) PCR-BRU-1FB-B-K Brucella Target 1 FastBlock Master Mix Biotinylated;
(ii) PCR-BRU-1FB-K Brucella Target 1 FastBlock Master Mix;
(iii) PCR-BRU-1R-K Brucella Target 1 LightCycler/RAPID Master Mix;
(iv) PCR-BURK-2FB-B-K Burkholderia Target 2 FastBlock Master Mix Biotinylated;
(v) PCR-BURK-2FB-K Burkholderia Target 2 FastBlock Master Mix;
(vi) PCR-BURK-2R-K Burkholderia Target 2 LightCycler/RAPID Master Mix;
(vii) PCR-BURK-3FB-B-K Burkholderia Target 3 FastBlock Master Mix Biotinylated;
(viii) PCR-BURK-3FB-K Burkholderia Target 3 FastBlock Master Mix;
(ix) PCR-BURK-3R-K Burkholderia Target 3 LightCycler/RAPID Master Mix;
(x) PCR-COX-1FB-B-K Coxiella burnetii Target 1 FastBlock Master Mix Biotinylated;
(xi) PCR-COX-1R-K Coxiella burnetii Target 1 LightCycler/RAPID Master Mix;
(xii) PCR-COX-2R-K Coxiella burnetii Target 2 LightCycler/RAPID Master Mix;
(xiii) PCR-OP-1FB-B-K Orthopox Target 1 FastBlock Master Mix Biotinylated;
(xiv) PCR-OP-1FB-K Orthopox Target 1 FastBlock Master Mix;
(xv) PCR-OP-1R-K Orthopox Target 1 LightCycler/RAPID Master Mix;
(xvi) PCR-OP-2FB-B-K Orthopox Target 2 FastBlock Master Mix Biotinylated;
(xvii) PCR-OP-3R-K Orthopox Target 3 LightCycler/RAPID Master Mix;
(xviii) PCR-RAZOR-BT-X PCR-RAZOR-BT-X RAZOR CRP BioThreat-X Screening Pouch;
(xix) PCR-RIC-1FB-K Ricin Target 1 FastBlock Master Mix;
(xx) PCR-RIC-1R-K Ricin Target 1 LightCycler/RAPID Master Mix;
(xxi) PCR-RIC-2R-K Ricin Target 2 LightCycler/RAPID Master Mix; or
(xxii) PCR-VEE-1R-K Venezuelan equine encephalitis Target 1 LightCycler/RAPID Master Mix; or
(4) Critical Reagent Program Antibodies with Catalog ID and Product respectively as follows:
(i) AB-AG-RIC Aff. Goat anti-Ricin;
(ii) AB-ALVG-MAB Anti-Alphavirus Generic Mab;
(iii) AB-AR-SEB Aff. Rabbit anti-SEB;
(iv) AB-BRU-M-MAB1 Anti-Brucella melitensis Mab 1;
(v) AB-BRU-M-MAB2 Anti-Brucella melitensis Mab 2;
(vi) AB-BRU-M-MAB3 Anti-Brucella melitensis Mab 3;
(vii) AB-BRU-M-MAB4 Anti-Brucella melitensis Mab 4;
(viii) AB-CHOL-0139-MAB Anti-V.cholerae 0139 Mab;
(ix) AB-CHOL-01-MAB Anti-V. cholerae 01 Mab;
(x) AB-COX-MAB Anti-Coxiella Mab;
(xi) AB-EEE-MAB Anti-EEE Mab;
(xii) AB-G-BRU-A Goat anti-Brucella abortus;
(xiii) AB-G-BRU-M Goat anti-Brucella melitensis;
(xiv) AB-G-BRU-S Goat anti-Brucella suis;
(xv) AB-G-CHOL-01 Goat anti-V.cholerae 0:1;
(xvi) AB-G-COL-139 Goat anti-V.cholerae 0:139;
(xvii) AB-G-DENG Goat anti-Dengue;
(xviii) AB-G-RIC Goat anti-Ricin;
(xix) AB-G-SAL-T Goat anti-S. typhi;
(xx) AB-G-SEA Goat anti-SEA;
(xxi) AB-G-SEB Goat anti-SEB;
(xxii) AB-G-SEC Goat anti-SEC;
(xxiii) AB-G-SED Goat anti-SED;
(xxiv) AB-G-SEE Goat anti-SEE;
(xxv) AB-G-SHIG-D Goat anti-Shigella dysenteriae;
(xxvi) AB-R-BA-PA Rabbit anti-Protective Antigen;
(xxvii) AB-R-COX Rabbit anti-C. burnetii;
(xxviii) AB-RIC-MAB1 Anti-Ricin Mab 1;
(xxix) AB-RIC-MAB2 Anti-Ricin Mab 2;
(xxx) AB-RIC-MAB3 Anti-Ricin Mab3;
(xxxi) AB-R-SEB Rabbit anti-SEB;
(xxxii) AB-R-VACC Rabbit anti-Vaccinia;
(xxxiii) AB-SEB-MAB Anti-SEB Mab;
(xxxiv) AB-SLT2-MAB Anti-Shigella-like t x2 Mab;
(xxxv) AB-T2T-MAB1 Anti-T2 Mab 1;
(xxxvi) AB-T2T-MAB2 Anti-T2 Toxin 2;
(xxxvii) AB-VACC-MAB1 Anti-Vaccinia Mab 1;
(xxxviii) AB-VACC-MAB2 Anti-Vaccinia Mab 2;
(xxxix) AB-VACC-MAB3 Anti-Vaccinia Mab 3;
(xl) AB-VACC-MAB4 Anti-Vaccinia Mab 4;
(xli) AB-VACC-MAB5 Anti-Vaccinia Mab 5;
(xlii) AB-VACC-MAB6 Anti-Vaccinia Mab 6;
(xliii) AB-VEE-MAB1 Anti-VEE Mab 1;
(xliv) AB-VEE-MAB2 Anti-VEE Mab 2;
(xlv) AB-VEE-MAB3 Anti-VEE Mab 3;
(xlvi) AB-VEE-MAB4 Anti-VEE Mab 4;
(xlvii) AB-VEE-MAB5 Anti-VEE Mab 5;
(xlviii) AB-VEE-MAB6 Anti-VEE Mab 6; or
(xlix) AB-WEE-MAB Anti-WEE Complex Mab.
(h) Vaccines exclusively funded by a Department of Defense contract, as follows:
(1) Recombinant Botulinum ToxinA/B Vaccine;
(2) Recombinant Plague Vaccine;
(3) Trivalent Filovirus Vaccine; or
(4) Vaccines specially designed for the sole purpose of protecting against biological agents and biologically derived substances identified in paragraph (b) of this category.
See ECCN 1A607.k for military medical countermeasures such as autoinjectors, combopens, and creams.
(i) Modeling or simulation tools, including software controlled in paragraph (m) of this category, for chemical or biological weapons design, development, or employment developed or produced under a Department of Defense contract or other funding authorization (e.g., the Department of Defense’s HPAC, SCIPUFF, and the Joint Effects Model (JEM)).
(j)-(l) [Reserved]
(m) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (l) and (n) of this category. (See§ 125.4 of this subchapter for exemptions.)
(n) Developmental countermeasures or sorbents funded by the Department of Defense via contract or other funding authorization;
This paragraph does not control countermeasures or sorbents that are (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination, or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the USML, whether in production or development.
This paragraph is applicable only to those contracts and funding authorizations that are dated July 28, 2017, or later.
(o)-(w) [Reserved]
(x) Commodities, software, and technology subject to the EAR used in or with defense articles controlled in this category.
Use of this paragraph is limited to license applications for defense articles controlled in this category where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).
(a) Spacecraft, including satellites and space vehicles, whether designated developmental, experimental, research, or scientific, or having a commercial, civil, or military end-use, that:
* (1) Are specially designed to mitigate effects (e.g., scintillation) of or for detection of a nuclear detonation;
* (2) Autonomously detect and track moving ground, airborne, missile, or space objects other than celestial bodies, in real-time using imaging, infrared, radar, or laser systems;
* (3) Conduct signals intelligence (SIGINT) or measurement and signatures intelligence (MASINT);
* (4) Are specially designed to be used in a constellation or formation that when operated together, in essence or effect, form a virtual satellite (e.g., functioning as if one satellite) with the characteristics or functions of other items in paragraph (a);
* (5) Are anti-satellite or anti-spacecraft (e.g., kinetic, RF, laser, charged particle);
* (6) Have space-to-ground weapons systems (e.g., kinetic or directed energy);
* (7) Have any of the following electro-optical remote sensing capabilities or characteristics:
(i) Electro-optical visible and near infrared (VNIR) (i.e., 400nm to 1,000nm) or infrared (i.e., greater than 1,000nm to 30,000nm) with less than 40 spectral bands and having a clear aperture greater than 0.50m;
(ii) Electro-optical hyperspectral with 40 spectral bands or more in the VNIR, short-wavelength infrared (SWIR) (i.e., greater than 1,000nm to 2,500nm) or any combination of the aforementioned and having a Ground Sample Distance (GSD) less than 30 meters;
(iii) Electro-optical hyperspectral with 40 spectral bands or more in the mid-wavelength infrared (MWIR) (i.e., greater than 2,500nm to 5,500nm) having a narrow spectral bandwidth of Δλ less than or equal to 20nm full width at half maximum (FWHM) or having a wide spectral bandwidth with Δλ greater than 20nm FWHM and a GSD less than 200 meters; or
(iv) Electro-optical hyperspectral with 40 spectral bands or more in the long-wavelength infrared (LWIR) (i.e., greater than 5,500nm to 30,000nm) having a narrow spectral bandwidth of Δλ less than or equal to 50nm FWHM or having a wide spectral bandwidth with Δλ greater than 50nm FWHM and a GSD less than 500 meters;
Ground Sample Distance (GSD) is measured from a spacecraft’s nadir (i.e., local vertical) position.
Optical remote sensing spacecraft or satellite spectral bandwidth is the smallest difference in wavelength (i.e., Δλ) that can be distinguished at full width at half maximum (FWHM) of wavelength λ.
An optical satellite or spacecraft is not Significant Military Equipment if non-earth pointing.
* (8) Have radar remote sensing capabilities or characteristics (e.g., active electronically scanned array (AESA), synthetic aperture radar (SAR), inverse synthetic aperture radar (ISAR), ultra-wideband SAR), except those having a center frequency equal to or greater than 1 GHz but less than or equal to 10 GHz and having a bandwidth less than 300 MHz;
(9) Provide Positioning, Navigation, and Timing (PNT) signals;
This paragraph does not control a satellite or spacecraft that provides only a differential correction broadcast for the purposes of positioning, navigation, or timing.
(10) Autonomously perform collision avoidance;
(11) Are sub-orbital, incorporate propulsion systems described in paragraph (e) of this category or Category IV(d)(1)-(6) of this section, and are specially designed for atmospheric entry or re-entry;
(12) Are specially designed to provide inspection or surveillance of another spacecraft, or service another spacecraft via grappling or docking; or
This paragraph does not control spacecraft that dock exclusively via the NASA Docking System (NDS), which are controlled by ECCN 9A515.a.4.
* (13) Are classified, contain classified software or hardware, are manufactured using classified production data, or are being developed using classified information (e.g., having classified requirements, specifications, functions, or operational characteristics or include classified cryptographic items controlled under USML Category XIII of this subchapter).
Spacecraft not identified in this paragraph are subject to the EAR (see ECCNs 9A004 and 9A515). Spacecraft described in ECCNs 9A004 and 9A515 remain subject to the EAR even if defense articles described on the USML are incorporated therein, except when such incorporation results in a spacecraft described in this paragraph.
This paragraph does not control (a) the International Space Station (ISS) and its specially designed (as defined in the EAR) parts and components, which are subject to the EAR, or (b) those articles for the ISS that are determined to be subject to the EAR via a commodity jurisdiction determination. Use of a defense article on the ISS that was not specially designed (as defined in the EAR) for the ISS does not cause the item to become subject to the EAR.
This paragraph does not control the James Webb Space Telescope, which is subject to the EAR.
(b) Ground control systems or training simulators, specially designed for telemetry, tracking, and control (TT&C) of spacecraft in paragraph (a) of this category.
Parts, components, accessories, attachments, equipment, or systems that are common to ground control systems or training simulators controlled in this paragraph and those that are used for spacecraft not controlled in paragraph (a) of this category are subject to the EAR.
(c)-(d) [Reserved]
(e) Spacecraft parts, components, accessories, attachments, equipment, or systems, as follows:
(1) Antenna systems specially designed for spacecraft that:
(i) Have a dimension greater than 25 meters in diameter or length of the major axis;
(ii) Employ active electronic scanning;
(iii) Are adaptive beam forming; or
(iv) Are for interferometric radar;
(2) Space-qualified optics (i.e., lens, mirror or membrane) having one of the following:
(i) Active properties (e.g., adaptive, deformable) with a largest lateral clear aperture dimension greater than 0.35m; or
(ii) A largest lateral clear aperture dimension greater than 0.50m;
(3) Space-qualified focal plane arrays (FPA) having a peak response in the wavelength range exceeding 900nm and readout integrated circuit (ROIC), whether separate or integrated, specially designed therefor;
(4) Space-qualified mechanical (i.e., active) cryocooler or active cold finger systems, and associated control electronics specially designed therefor;
(5) Space-qualified active vibration suppression systems, including active isolation and active dampening systems, and associated control electronics specially designed therefor;
(6) Optical bench assemblies specially designed to enable spacecraft to meet or exceed the parameters described in paragraph (a) of this category;
(7) Space-qualified kinetic or directed-energy systems (e.g., RF, laser, charged particle) specially designed for spacecraft in paragraph (a)(5) or (a)(6) of this category, and specially designed parts and components therefor (e.g., power conditioning and beam-handling/switching, propagation, tracking, and pointing equipment);
(8) [Reserved]
(9) Space-qualified cesium, rubidium, hydrogen maser, or quantum (e.g., based upon Al, Hg, Yb, Sr, Be Ions) atomic clocks, and specially designed parts and components therefor;
(10) Attitude determination and control systems, and specially designed parts and components therefor, that provide a spacecraft’s geolocation accuracy, without using Ground Location Points, better than or equal to:
(i) 5 meters (CE90) from low earth orbit (LEO);
(ii) 30 meters (CE90) from medium earth orbit (MEO);
(iii) 150 meters (CE90) from geosynchronous orbit (GEO); or
(iv) 225 meters (CE90) from high earth orbit (HEO);
(11) Space-based systems, and specially designed parts and components therefor, as follows:
(i) Nuclear reactors and associated power conversion systems (e.g., liquid metal or gas-cooled fast reactors);
(ii) Radioisotope-based power systems (e.g., radioisotope thermoelectric generators);
(iii) Nuclear thermal propulsion systems (e.g., solid core, liquid core, gas core fission); or
(iv) Electric (Plasma/Ion) propulsion systems that provide a thrust greater than 300 milli-Newtons and a specific impulse greater than 1,500 sec; or that operate at an input power of more than 15kW;
(12) Thrusters (e.g., spacecraft or rocket engines) using bi-propellants or mono-propellant that provide greater than 150 lbf (i.e., 667.23 N) vacuum thrust (MT for rocket motors or engines having a total impulse capacity equal to or greater than 8.41 × 10
(13) Control moment gyroscope (CMG) specially designed for spacecraft;
(14) Space-qualified monolithic microwave integrated circuits (MMIC) that combine transmit and receive (T/R) functions on a single die as follows:
(i) Having a power amplifier with maximum saturated peak output power (in watts), Psat, greater than 200 divided by the maximum operating frequency (in GHz) squared [Psat >200 W* GHz2/fGHz2]; or
(ii) Having a common path (e.g., phase shifter-digital attenuator) circuit with greater than 3 bits phase shifting at operating frequencies 10 GHz or below, or greater than 4 bits phase shifting at operating frequencies above 10 GHz;
(15) Space-qualified oscillator for radar in paragraph (a) of this category with phase noise less than −120 dBc/Hz + (20 log10(RF) (in GHz)) measured at 2 KHz* RF (in GHz) from carrier;
(16) Space-qualified star tracker or star sensor with angular accuracy less than or equal to 1 arcsec (1-Sigma) per star coordinate, and a tracking rate equal to or greater than 3.0 deg/sec, and specially designed parts and components therefor (MT);
* (17) Primary, secondary, or hosted payload that performs any of the functions described in paragraph (a) of this category;
Primary payload is that complement of equipment designed from the outset to accomplish the prime mission function of the spacecraft payload mission set. The primary payload may operate independently from the secondary payload(s). Secondary payload is that complement of equipment designed from the outset to be fully integrated into the spacecraft payload mission set. The secondary payload may operate separately from the primary payload. Hosted payload is a complement of equipment or sensors that uses the available or excess capacity (mass, volume, power, etc.) of a spacecraft to accommodate an additional, independent mission. The hosted payload may share the spacecraft bus support infrastructure. The hosted payload performs an additional, independent mission which does not dictate control or operation of the spacecraft. A hosted payload is not capable of operating as an independent spacecraft. Spacecraft bus (distinct from the spacecraft payload), provides the support infrastructure of the spacecraft (e.g., command and data handling, communications and antenna(s), electrical power, propulsion, thermal control, attitude and orbit control, guidance, navigation and control, structure and truss, life support (for crewed mission)) and location (e.g., attachment, interface) for the spacecraft payload. Spacecraft payload is that complement of equipment attached to the spacecraft bus that performs a particular mission in space (e.g., communications, observation, science).
An ECCN 9A004 or ECCN 9A515.a spacecraft remains a spacecraft subject to the EAR even when incorporating a hosted payload performing a function described in paragraph (a) of this category. All spacecraft that incorporate primary or secondary payloads that perform a function described in paragraph (a) of this category are controlled by that paragraph. This paragraph does not control primary or secondary payloads of the James Webb Space Telescope, which are subject to the EAR.
* (18) Secondary or hosted payload, and specially designed parts and components therefor, developed with Department of Defense-funding;
This paragraph does not control payloads that are (a) determined to be subject to the EAR via a commodity jurisdiction determination, or (b) identified in the relevant Department of Defense contract or other funding authorization or agreement as being developed for both military and either civil or commercial applications.
This paragraph is applicable only to those contracts or funding authorizations or agreements that are dated May 13, 2015, or later.
(19) Spacecraft heat shields or heat sinks specially designed for atmospheric entry or re-entry, and specially designed parts and components therefor (MT if usable in rockets, SLVs, missiles, drones, or UAVs capable of delivering a payload of at least 500 kg to a range of at least 300 km);
“Payload” is the total mass that can be carried or delivered by the specified rocket, SLV, missile, drone, or UAV that is not used to maintain flight. For definition of “range” as it pertains to aircraft systems, see note to paragraph (a) of USML Category VIII. For definition of “range” as it pertains to rocket systems, see note 1 to paragraph (a) of USML Category IV.
(20) Equipment modules, stages, or compartments that incorporate propulsion systems described in paragraph (e) of this category or Category IV(d)(1)-(6) of this section, and can be separated or jettisoned from another spacecraft; or
* (21) Any part, component, accessory, attachment, equipment, or system that:
(i) Is classified;
(ii) Contains classified software; or
(iii) Is being developed using classified information.
Parts, components, accessories, attachments, equipment, or systems specially designed for spacecraft or other articles enumerated in this category but not listed in paragraph (e) are subject to the EAR.
The articles described in this paragraph are subject to the EAR when, prior to export, reexport, retransfer, or temporary import, they are integrated into and included as an integral part of an item subject to the EAR (see note 2 to paragraph (e)(17) of this category). Articles do not become subject to the EAR until integrated into the item subject to the EAR. Export, reexport, retransfer, or temporary import of, and technical data and defense services directly related to defense articles intended to be integrated remain subject to the ITAR.
For the purposes of this paragraph, an article is space-qualified if it is designed, manufactured, or qualified through successful testing, for operation at altitudes greater than 100 km above the surface of the Earth. The use of an altitude of 100 km above the surface of the Earth in this paragraph does not represent a legal demarcation between national air space and outer space under United States or international law.
(1) A determination that a specific article (or commodity) (e.g., by product serial number) is space-qualified by virtue of testing alone does not mean that other articles in the same production run or model series are space-qualified if not individually tested. (2) “Article” is synonymous with “commodity,” as defined in EAR § 772.1. (3) A specific article not designed or manufactured for use at altitudes greater than 100 km above the surface of the Earth is not space-qualified before it is successfully tested. (4) The terms “designed” and “manufactured” in this definition are synonymous with “specially designed.”
(f) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraphs (a) through (e) of this category and classified technical data directly related to items controlled in ECCNs 9A515, 9B515, or 9D515 and defense services using the classified technical data. Defense services include the furnishing of assistance (including training) to a foreign person in the integration of a satellite or spacecraft to a launch vehicle, including both planning and onsite support, regardless of the jurisdiction, ownership, or origin of the satellite or spacecraft, or whether technical data is used. It also includes the furnishing of assistance (including training) to a foreign person in the launch failure analysis of a satellite or spacecraft, regardless of the jurisdiction, ownership, or origin of the satellite of spacecraft, or whether technical data is used. (See § 125.4 of this subchapter for exemptions, and § 124.15 of this subchapter for special export controls for satellites and satellite launches.) (MT for technical data and defense services related to articles designated as such.)
The technical data control of this paragraph does not apply to certain technical data directly related to articles described in paragraphs (c) or (e) of this category when such articles are integrated into and included as an integral part of a satellite subject to the EAR. For controls in these circumstances, see ECCN 9E515. This only applies to that level of technical data (including marketing data) necessary and reasonable for a purchaser to have assurance that a U.S. built item intended to operate in space has been designed, manufactured, and tested in conformance with specified contract requirements (e.g., operational performance, reliability, lifetime, product quality, or delivery expectations) as well as data necessary for normal orbit satellite operations, to evaluate in-orbit anomalies, and to operate and maintain associated ground station equipment (except encryption hardware).
Activities and technology/technical data directly related to or required for the spaceflight (e.g., sub-orbital, orbital, lunar, interplanetary, or otherwise beyond Earth orbit) passenger or participant experience, regardless of whether the passenger or participant experience is for space tourism, scientific or commercial research, commercial manufacturing/production activities, educational, media, or commercial transportation purposes, are not subject to the ITAR or the EAR. Such activities and technology/technical data include those directly related to or required for: (a) Spacecraft access, ingress, and egress, including the operation of all spacecraft doors, hatches, and airlocks; (b) physiological training (e.g., human-rated centrifuge training or parabolic flights, pressure suit or spacesuit training/operation); (c) medical evaluation or assessment of the spaceflight passenger or participant; (d) training for and operation by the passenger or participant of health and safety related hardware (e.g., seating, environmental control and life support, hygiene facilities, food preparation, exercise equipment, fire suppression, communications equipment, safety-related clothing or headgear) or emergency procedures; (e) viewing of the interior and exterior of the spacecraft or terrestrial mock-ups; (f) observing spacecraft operations (e.g., pre-flight checks, landing, in-flight status); (g) training in spacecraft or terrestrial mock-ups for connecting to or operating passenger or participant equipment used for purposes other than operating the spacecraft; or (h) donning, wearing, or utilizing the passenger’s or participant’s flight suit, pressure suit, or spacesuit, and personal equipment.
Paragraph (f) and ECCNs 9E001, 9E002 and 9E515 do not control the data transmitted to or from a satellite or spacecraft, whether real or simulated, when limited to information about the health, operational status, or measurements or function of, or raw sensor output from, the spacecraft, spacecraft payload(s), or its associated subsystems or components. Such information is not within the scope of information captured within the definition of technology in the EAR for purposes of Category 9 Product Group E. Examples of such information, which are commonly referred to as “housekeeping data,” include (i) system, hardware, component configuration, and operation status information pertaining to temperatures, pressures, power, currents, voltages, and battery charges; (ii) spacecraft or payload orientation or position information, such as state vector or ephemeris information; (iii) payload raw mission or science output, such as images, spectra, particle measurements, or field measurements; (iv) command responses; (v) accurate timing information; and (vi) link budget data. The act of processing such telemetry data – i.e., converting raw data into engineering units or readable products – or encrypting it does not, in and of itself, cause the telemetry data to become subject to the ITAR or to ECCN 9E515 for purposes of 9A515, or to ECCNs 9E001 or 9E002 for purposes of 9A004. All classified technical data directly related to items controlled in USML Category XV or ECCNs 9A515, and defense services using the classified technical data, remains subject to the ITAR. This note does not affect controls in USML XV(f), ECCN 9D515, or ECCN 9E515 on software source code or commands that control a spacecraft, payload, or associated subsystems for purposes of 9A515. This note also does not affect controls in ECCNs 9D001, 9D002, 9E001, or 9E002 on software source code or commands that control a spacecraft, payload, or associated subsystems for purposes of 9A004.
(g)-(w) [Reserved]
(x) Commodities, software, and technology subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation also includes commodities, software, or technology subject to the EAR (see § 123.21(b) of this subchapter).
(a) [Reserved]
* (b) Modeling or simulation tools that model or simulate the environments generated by nuclear detonations or the effects of these environments on systems, subsystems, components, structures, or humans.
(c) [Reserved]
(d) Parts, components, accessories, attachments, associated equipment, and production, testing, and inspection equipment and tooling, specially designed for the articles in paragraph (b) of this category.
(e) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraph (b) of this category (see also § 120.5(c) of this subchapter for nuclear related controls).
(f)-(w) [Reserved]
(x) Commodities, software, and technical data subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technical data subject to the EAR (see § 123.1(b) of this subchapter).
* (a) All articles, and technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) relating thereto, that are classified in the interests of national security and that are not otherwise enumerated on the U.S. Munitions List.
* (a) Directed energy weapons as follows:
(1) Systems or equipment that, other than as a result of incidental, accidental, or collateral effect:
(i) Degrade, destroy or cause mission-abort of a target;
(ii) Disturb, disable, or damage electronic circuitry, sensors or explosive devices remotely;
(iii) Deny area access;
(iv) Cause lethal effects; or
(v) Cause ocular disruption or blindness; and
(2) Use any non-acoustic technique such as lasers (including continuous wave or pulsed lasers), particle beams, particle accelerators that project a charged or neutral particle beam, high power radio-frequency (RF), or high pulsed power or high average power radio frequency beam transmitters.
* (b) Systems or equipment specially designed to detect, identify, or provide defense against articles specified in paragraph (a) of this category.
(c)-(d) [Reserved]
(e) Components, parts, accessories, attachments, systems or associated equipment specially designed for any of the articles in paragraphs (a) or (b) of this category.
(f) Developmental directed energy weapons funded by the Department of Defense via contract or other funding authorization, and specially designed parts and components therefor;
This paragraph does not control directed energy weapons (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination, or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the USML, whether in production or development.
This paragraph is applicable only to those contracts and funding authorizations that are dated July 28, 2017, or later.
(g) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles enumerated in paragraphs (a) through (e) of this category;
(x) Commodities, software, and technology subject to the EAR used in or with defense articles controlled in this category.
Use of this paragraph is limited to license applications for defense articles controlled in this category where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).
* (a) Turbofan and Turbojet engines (including those that are technology demonstrators, developmental engines, or variable cycle engines) capable of 15,000 lbf (66.7 kN) of thrust or greater that have any of the following:
(1) With or specially designed for thrust augmentation (afterburner);
(2) Thrust or exhaust nozzle vectoring;
(3) Parts or components controlled in paragraph (f)(6) of this category;
(4) Specially designed for sustained 30 second inverted flight or negative g maneuver; or
(5) Specially designed for high power extraction (greater than 50 percent of engine thrust at altitude) at altitudes greater than 50,000 feet.
* (b) Turboshaft and Turboprop engines (including those that are technology demonstrators or developmental engines) that have any of the following:
(1) Capable of 2000 mechanical shp (1491 kW) or greater and specially designed with oil sump sealing when the engine is in the vertical position; or
(2) Capable of a specific power of 225 shp/(lbm/sec) or greater and specially designed for armament gas ingestion and non-civil transient maneuvers, where specific power is defined as maximum takeoff shaft horsepower (shp) divided by compressor inlet flow (lbm/sec).
* (c) Gas turbine engines (including technology demonstrators, developmental engines, and variable cycle engines) specially designed for unmanned aerial vehicle systems controlled in this subchapter, cruise missiles, or target drones (MT if for an engine used in an aircraft, excluding manned aircraft, or missile that has a “range” equal to or greater than 300 km).
* (d) GE38, AGT1500, CTS800, MT7, T55, HPW3000, GE3000, T408, and T700 engines.
Engines subject to the control of this paragraph are licensed by the Department of Commerce when incorporated in an aircraft subject to the EAR and controlled under ECCN 9A610. Such engines are subject to the controls of the ITAR in all other circumstances.
* (e) Digital engine control systems (e.g., Full Authority Digital Engine Controls (FADEC) and Digital Electronic Engine Controls (DEEC)) specially designed for gas turbine engines controlled in this category (MT if the digital engine control system is for an aircraft, excluding manned aircraft, or missile that has a range equal to or greater than 300 km).
Digital electronic control systems autonomously control the engine throughout its whole operating range from demanded engine start until demanded engine shut-down, in both normal and fault conditions.
(f) Parts, components, accessories, attachments, associated equipment, and systems as follows:
(1) Parts, components, accessories, and attachments specially designed for the following U.S.-origin engines (and military variants thereof): F101, F107, F112, F118, F119, F120, F135, F136, F414, F415, and J402;
This paragraph does not control parts, components, accessories, and attachments that are common to engines enumerated in paragraph (a) through (d) of this category but not identified in paragraph (f)(1), and those identified in paragraph (f)(1). For example, a part common to only the F110 and F136 is not specially designed for purposes of this paragraph. A part common to only the F119 and F135 – two engine models identified in paragraph (f)(1) – is specially designed for purposes of this paragraph, unless one of the other paragraphs is applicable under § 120.41(b).
* (2) Hot section components (i.e., combustion chambers and liners; high pressure turbine blades, vanes, disks and related cooled structure; cooled intermediate pressure turbine blades, vanes, disks and related cooled structures; cooled low pressure turbine blades, vanes, disks and related cooled structures; cooled shaft-driving power turbine blades, vanes, disks and related cooled structures; cooled augmenters; and cooled nozzles) specially designed for gas turbine engines controlled in this category;
(3) Uncooled turbine blades, vanes, disks, and tip shrouds specially designed for gas turbine engines controlled in this category;
(4) Combustor cowls, diffusers, domes, and shells specially designed for gas turbine engines controlled in this category;
(5) Engine monitoring systems (i.e., prognostics, diagnostics, and health) specially designed for gas turbine engines and components controlled in this category;
* (6) Any part, component, accessory, attachment, equipment, or system that:
(i) Is classified;
(ii) Contains classified software directly related to defense articles in this subchapter or 600 series items subject to the EAR; or
(iii) Is being developed using classified information.
(7) Investment casting cores, core dies, or wax pattern dies for parts or components enumerated in paragraphs (f)(1), (f)(2), or (f)(3) of this category;
(8) Pressure gain combustors specially designed for engines controlled in this category, and specially designed parts and components therefor;
(9) Three-stream fan systems, specially designed for gas turbine engines controlled in this Category, that allow the movement of airflow between the streams to control fan pressure ratio or bypass ratio (by means other than use of fan corrected speed or the primary nozzle area to change the fan pressure ratio or bypass ratio), and specially designed parts, components, accessories, and attachments therefor;
(10) High pressure compressors, specially designed for gas turbine engines controlled in this Category, with core-driven bypass streams that have a pressure ratio greater than one, occurring across any section of the bypass duct, and specially designed parts, components, accessories, and attachments therefor;
(11) Intermediate compressors of a three-spool compression system, specially designed for gas turbine engines controlled in this Category, with an intermediate spool-driven bypass stream that has a pressure ratio greater than one, occurring across any section of the bypass duct, and specially designed parts, components, accessories, and attachments therefor; or
(12) Any of the following equipment if specially designed for a defense article described in paragraph (f)(1): Jigs, locating fixtures, templates, gauges, molds, dies, caul plates, or bellmouths.
(g) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraphs (a) through (f) of this category and classified technical data directly related to items controlled in ECCNs 9A619, 9B619, 9C619, and 9D619 and defense services using the classified technical data. (See § 125.4 of this subchapter for exemptions.) (MT for technical data and defense services related to articles designated as such.)
(h)-(w) [Reserved]
(x) Commodities, software, and technology subject to the EAR used in or with defense articles controlled in this category.
Use of this paragraph is limited to license applications for defense articles controlled in this category where the purchase documentation includes commodities, software, or technology subject to the EAR (see § 123.1(b) of this subchapter).
(a) Submersible and semi-submersible vessels that are:
* (1) Submarines specially designed for military use;
(2) Mine countermeasure vehicles;
(3) Anti-submarine warfare vehicles;
(4) Armed or are specially designed to be used as a platform to deliver munitions or otherwise destroy or incapacitate targets (e.g., firing torpedoes, launching rockets, firing missiles, deploying mines, deploying countermeasures) or deploy military payloads;
(5) Swimmer delivery vehicles specially designed for the deployment, recovery, or support of swimmers or divers from submarines;
(6) Integrated with nuclear propulsion systems;
(7) Equipped with any mission systems controlled under this subchapter; or
“Mission system” is defined as a “system” (see § 120.40(h) of this subchapter) that are defense articles that perform specific military functions such as by providing military communication, electronic warfare, target designation, surveillance, target detection, or sensor capabilities.
(8) Developmental vessels funded by the Department of Defense via contract or other funding authorization.
This paragraph does not control vessels, and specially designed parts, components, accessories, attachments, and associated equipment therefor, (a) in production, (b) determined to be subject to the EAR via a commodity jurisdiction determination or (c) identified in the relevant Department of Defense contract or other funding authorization as being developed for both civil and military applications.
Note 1 does not apply to defense articles enumerated on the U.S. Munitions List, whether in production or development.
This provision is applicable to those contracts and funding authorizations that are dated July 8, 2014, or later.
* (b) Engines, electric motors, and propulsion plants as follows:
(1) Naval nuclear propulsion plants and prototypes, and special facilities for construction, support, and maintenance therefor (see also § 120.5(c) of this subchapter for nuclear related controls);
(2) Electric motors specially designed for submarines that have the following:
(i) Power output of more than 0.75 MW (1,000 hp);
(ii) Quick reversing;
(iii) Liquid cooled; and
(iv) Totally enclosed.
(c) Parts, components, accessories, attachments, and associated equipment, including production, testing, and inspection equipment and tooling, specially designed for any of the articles in paragraphs (a) and (b) of this category (MT for launcher mechanisms specially designed for rockets, space launch vehicles, or missiles capable of achieving a range greater than or equal to 300 km).
“Range” is the maximum distance that the specified rocket system is capable of traveling in the mode of stable flight as measured by the projection of its trajectory over the surface of the Earth. The maximum capability based on the design characteristics of the system, when fully loaded with fuel or propellant, will be taken into consideration in determining range. The range for rocket systems will be determined independently of any external factors such as operational restrictions, limitations imposed by telemetry, data links, or other external constraints. For rocket systems, the range will be determined using the trajectory that maximizes range, assuming International Civil Aviation Organization (ICAO) standard atmosphere with zero wind.
(d) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles described in paragraphs (a) through (c) of this category. (MT for technical data and defense services related to articles designated as such.) (See § 125.4 of this subchapter for exemptions.)
(e)-(w) [Reserved]
(x) Commodities, software, and technical data subject to the EAR used in or with defense articles.
Use of this paragraph is limited to license applications for defense articles where the purchase documentation includes commodities, software, or technical data subject to the EAR (see § 123.1(b) of this subchapter).
* (a) Any article not enumerated on the U.S. Munitions List may be included in this category until such time as the appropriate U.S. Munitions List category is amended. The decision on whether any article may be included in this category, and the designation of the defense article as not Significant Military Equipment, shall be made by the Director, Office of Defense Trade Controls Policy.
(b) Technical data (see § 120.33 of this subchapter) and defense services (see § 120.32 of this subchapter) directly related to the defense articles covered in paragraph (a) of this category.
2. At 79 FR 61228, Oct. 10, 2014, § 121.1 was amended by removing the word “enumerated” and adding in its place the word “described” in one place in Note 1 to paragraph (i) of Category VI; however, the amendment could not be incorporated because of inaccurate amendatory instruction.
§§ 121.2-121.16 [Reserved]
PART 122 – REGISTRATION OF MANUFACTURERS AND EXPORTERS
§ 122.1 Registration requirements.
(a) Any person who engages in the United States in the business of manufacturing or exporting or temporarily importing defense articles, or furnishing defense services, is required to register with the Directorate of Defense Trade Controls under § 122.2. For the purpose of this subchapter, engaging in such a business requires only one occasion of manufacturing or exporting or temporarily importing a defense article or furnishing a defense service. A manufacturer who does not engage in exporting must nevertheless register. (See part 129 of this subchapter for requirements for registration of persons who engage in brokering activities.)
(b) Exemptions. The registration requirements of paragraph (a) of this section do not apply to:
(1) Officers and employees of the U.S. Government acting in an official capacity;
(2) Persons whose pertinent business activity is confined to the production of unclassified technical data only;
(3) Persons all of whose manufacturing and export activities are licensed under the Atomic Energy Act of 1954, as amended; or
(4) Persons who engage in the fabrication of articles solely for experimental or scientific purposes, including research and development.
Persons who qualify for the exemptions in paragraphs (b)(2) or (b)(4) of this section remain subject to the requirements for licenses or other approvals for exports of defense articles and defense services and may not receive an export license or approval unless registered under § 122.2.
(c) Purpose. Registration is primarily a means to provide the U.S. Government with necessary information on who is involved in certain manufacturing and exporting activities. Registration does not confer any export rights or privileges. It is generally a precondition to the issuance of any license or other approval under this subchapter, unless an exception is granted by the Directorate of Defense Trade Controls.
§ 122.2 Submission of registration statement.
(a) General. An intended registrant must submit a Statement of Registration (Department of State form DS-2032) to the Office of Defense Trade Controls Compliance by following the submission guidelines available on the Directorate of Defense Trade Controls Web site at www.pmddtc.state.gov. The Statement of Registration must be signed by a U.S. person senior officer (e.g., chief executive officer, president, secretary, partner, member, treasurer, general counsel) who has been empowered by the intended registrant to sign such documents. The Statement of Registration may include subsidiaries and affiliates when more than 50 percent of the voting securities are owned by the registrant or the subsidiaries and affiliates are otherwise controlled by the registrant (see § 120.66 of this subchapter). The intended registrant also shall submit documentation that demonstrates that it is incorporated or otherwise authorized to do business in the U.S. The Directorate of Defense Trade Controls will notify the registrant if the Statement of Registration is incomplete either by notifying the registrant of what information is required or through the return of the entire registration package. Registrants may not establish new entities for the purpose of reducing registration fees.
(b) Statement of Registration Certification. The Statement of Registration of the intended registrant shall include a certification by an authorized senior officer of the following:
(1) Whether the intended registrant or its parent, subsidiary, or other affiliate listed in the Statement of Registration, or any of its chief executive officers, presidents, vice presidents, secretaries, partners, members, other senior officers or officials (e.g., comptroller, treasurer, general counsel), or any member of the board of directors of the intended registrant, or of any parent, subsidiary, or other affiliate listed in the Statement of Registration:
(i) Has ever been indicted or otherwise charged (e.g., charged by criminal information in lieu of indictment) for or has been convicted of violating any U.S. criminal statutes enumerated in § 120.6 of this subchapter or violating a foreign criminal law on exportation of defense articles where conviction of such law carries a minimum term of imprisonment of greater than 1 year; or
(ii) Is ineligible to contract with, or to receive a license or other approval to import defense articles or defense services from, or to receive an export license or other approval from, any agency of the U.S. Government; and
(2) Whether the intended registrant is foreign owned or foreign controlled (see § 120.65 of this subchapter). If the intended registrant is foreign owned or foreign controlled, the certification shall include an explanation of such ownership or control, including the identities of the foreign person or persons who ultimately own or control the registrant. This requirement applies to a registrant who is a U.S. person and is owned or controlled by a foreign person. It also applies to a registrant who is a foreign person and is owned or controlled by a foreign person from the same country or a foreign person from another country.
§ 122.3 Registration fees.
(a) Frequency of registration and fee. A person who is required to register must do so on an annual basis by submitting a completed Statement of Registration (form DS-2032) and payment of a fee following the payment guidelines available on the Directorate of Defense Trade Controls Web site at www.pmddtc.state.gov. For those renewing a registration, notice of the fee due for the next year’s registration will be sent to the registrant of record at least 60 days prior to its expiration date.
(b) Expiration of registration. A registrant must submit its request for registration renewal at least 30 days but no earlier than 60 days prior to the expiration date.
(c) Lapse in registration. A registrant who fails to renew a registration and, after an intervening period, seeks to register again must pay registration fees for any part of such intervening period during which the registrant engaged in the business of manufacturing or exporting defense articles or defense services.
§ 122.4 Notification of changes in information furnished by registrants.
(a) A registrant must, within five days of the event, provide to the Directorate of Defense Trade Controls a written notification, signed by a senior officer (e.g., chief executive officer, president, secretary, partner, member, treasurer, general counsel), if:
(1) Any of the persons referred to in § 122.2(b) is indicted or otherwise charged (e.g., by criminal information in lieu of indictment) for or convicted of violating any of the U.S. criminal statutes enumerated in § 120.6 of this subchapter or violating a foreign criminal law on exportation of defense articles where conviction of such law carries a minimum term of imprisonment of greater than 1 year, or becomes ineligible to contract with, or to receive a license or other approval to export or temporarily import defense articles or defense services from any agency of the U.S. Government; or
(2) There is a change in the following information contained in the Statement of Registration:
(i) Registrant’s name;
(ii) Registrant’s address;
(iii) Registrant’s legal organization structure;
(iv) Ownership or control;
(v) The establishment, acquisition, or divestment of a U.S. or foreign subsidiary or other affiliate who is engaged in manufacturing defense articles, exporting defense articles or defense services; or
(vi) Board of directors, senior officers, partners, or owners.
All other changes in the Statement of Registration must be provided as part of annual registration renewal.
For one year from the effective date of the rule, “Amendment to the International Traffic in Arms Regulations: Registration and Licensing of Brokers, Brokering Activities, and Related Provisions,” RIN 1400-AC37, the following changes must be provided as part of the annual registration renewal: Pursuant to § 129.3(d) of this subchapter, changes to combine an existing broker registration with an existing manufacturer/exporter registration; and pursuant to § 122.2(a) of this subchapter, changes to an existing registration to remove partially owned and not otherwise controlled subsidiaries or affiliates, which are not the subject of an internal reorganization, merger, acquisition, or divestiture.
(b) A registrant must notify the Directorate of Defense Trade Controls by registered mail at least 60 days in advance of any intended sale or transfer to a foreign person of ownership or control of the registrant or any entity thereof. Such notice does not relieve the registrant from obtaining the approval required under this subchapter for the export of defense articles or defense services to a foreign person, including the approval required prior to disclosing technical data. Such notice provides the Directorate of Defense Trade Controls with the information necessary to determine whether the authority of § 38(g)(6) of the Arms Export Control Act regarding licenses or other approvals for certain sales or transfers of defense articles or data on the U.S. Munitions List should be invoked (see § 126.1(e) of this subchapter).
(c) The new entity formed when a registrant merges with another company or acquires, or is acquired by, another company or a subsidiary or division of another company shall advise the Directorate of Defense Trade Controls of the following:
(1) The new firm name and all previous firm names being disclosed;
(2) The registration number that will survive and those that are to be discontinued (if any);
(3) The license numbers of all approvals on which unshipped balances will be shipped under the surviving registration number, since any license not the subject of notification will be considered invalid; and
(4) Amendments to agreements approved by the Directorate of Defense Trade Controls to change the name of a party to those agreements. The registrant must provide to the Directorate of Defense Trade Controls a signed copy of such an amendment to each agreement signed by the new U.S. entity, the former U.S. licensor and the foreign licensee, within 60 days of this notification, unless an extension of time is approved by the Directorate of Defense Trade Controls. Any agreement not so amended may be considered invalid.
(d) Prior approval by the Directorate of Defense Trade Controls is required for any amendment making a substantive change.
§ 122.5 Maintenance of records by registrants.
(a) A person who is required to register must maintain records concerning the manufacture, acquisition and disposition (to include copies of all documentation on exports using exemptions and applications and licenses and their related documentation), of defense articles; of technical data; the provision of defense services; brokering activities; and information on political contributions, fees, or commissions furnished or obtained, as required by part 130 of this subchapter. Records in an electronic format must be maintained using a process or system capable of reproducing all records on paper. Such records when displayed on a viewer, monitor, or reproduced on paper, must exhibit a high degree of legibility and readability. (For the purpose of this section, “legible” and “legibility” mean the quality of a letter or numeral that enables the observer to identify it positively and quickly to the exclusion of all other letters or numerals. “Readable” and “readability” means the quality of a group of letters or numerals being recognized as complete words or numbers.) This information must be stored in such a manner that none of it may be altered once it is initially recorded without recording all changes, who made them, and when they were made. For processes or systems based on the storage of digital images, the process or system must afford accessibility to all digital images in the records being maintained. All records subject to this section must be maintained for a period of five years from the expiration of the license or other approval, to include exports using an exemption (see § 123.26 of this subchapter); or, from the date of the transaction (e.g., expired licenses or other approvals relevant to the export transaction using an exemption). The Deputy Assistant Secretary of State for Defense Trade Controls and the Director of the Office of Defense Trade Controls Licensing may prescribe a longer or shorter period in individual cases.
(b) Records maintained under this section shall be available at all times for inspection and copying by the Directorate of Defense Trade Controls or a person designated by the Directorate of Defense Trade Controls (e.g., the Diplomatic Security Service) or U.S. Immigration and Customs Enforcement, or U.S. Customs and Border Protection. Upon such request, the person maintaining the records must furnish the records, the equipment, and if necessary, knowledgeable personnel for locating, reading, and reproducing any record that is required to be maintained in accordance with this section.
PART 123 – LICENSES FOR THE EXPORT AND TEMPORARY IMPORT OF DEFENSE ARTICLES
§ 123.1 Requirement for export or temporary import licenses.
(a) Any person who intends to export or to import temporarily a defense article must obtain the approval of the Directorate of Defense Trade Controls prior to the export or temporary import, unless the export or temporary import qualifies for an exemption under the provisions of this subchapter. The applicant must be registered with the Directorate of Defense Trade Controls pursuant to part 122 of this subchapter prior to submitting an application. Applications for unclassified exports and temporary imports must be submitted electronically. Applications for classified exports and classified temporary imports must be submitted via paper. Further guidance is provided on the Internet Web site of the Directorate of Defense Trade Controls. The application forms for export or temporary import are as follows:
(1) Unclassified permanent exports must be made on Form DSP-5;
(2) Unclassified temporary exports must be made on Form DSP-73;
(3) Unclassified temporary imports must be made on Form DSP-61; or
(4) Classified exports or temporary imports must be made on Form DSP-85.
(b) Applications for Department of State export or temporary import licenses for proposed exports or temporary imports of defense articles, including technical data, may include commodities, software, and technical data subject to the EAR if:
(1) The purchase documentation (e.g., purchase order, contract, letter of intent, or other appropriate documentation) includes both defense articles described on the U.S. Munitions List and items on the Commerce Control List;
(2) The commodities, software, and technical data subject to the EAR are for end-use in or with the U.S. Munitions List defense article(s) proposed for export; and
(3) The license application separately enumerates the commodities, software, and technical data subject to the EAR in a U.S. Munitions List “(x)” paragraph entry.
(c) As a condition to the issuance of a license or other approval, the Directorate of Defense Trade Controls may require all pertinent documentation regarding the proposed transaction and proper completion of the application form as follows:
(1) Form DSP-5, DSP-61, DSP-73, and DSP-85 applications must have an entry in each block where space is provided for an entry. All requested information must be provided. Stating “Not Applicable” or “See Attached” is not acceptable. See the Directorate of Defense Trade Controls Internet Web site for additional guidance on the completion of a license application form;
(2) Attachments and supporting technical data or brochures should be submitted with the license application. All freight forwarders and U.S. consignors must be listed in the license application. See the Directorate of Defense Trade Controls Internet Web site for instructions and limitations on attaching documentation;
(3) Certification by an empowered official must accompany all application submissions (see § 126.13 of this subchapter);
(4) An application for a license for the permanent export of defense articles sold commercially must be accompanied by purchase documentation (e.g., purchase order, contract, letter of intent, or other appropriate documentation). In cases involving the Foreign Military Sales program, a copy of the relevant Letter of Offer and Acceptance is required, unless the procedures of § 126.4(c) or § 126.6 of this subchapter are followed;
(5) Form DSP-83, duly executed, must accompany all license applications for the permanent export of significant military equipment, including classified defense articles or classified technical data (see §§ 123.10 and 125.3 of this subchapter); and
(6) A statement concerning the payment of political contributions, fees, and commissions must accompany a permanent export application if the export involves defense articles or defense services valued in an amount of $500,000 or more and is being sold commercially to or for the use of the armed forces of a foreign country or international organization (see part 130 of this subchapter).
(d) Provisions for furnishing the type of defense services described in § 120.32 of this subchapter are contained in part 124 of this subchapter. Provisions for the export or temporary import of technical data and classified defense articles are contained in part 125 of this subchapter.
(e) A request for a license for the export of unclassified technical data (DSP-5) related to a classified defense article should specify any classified technical data or material that subsequently will be required for export in the event of a sale.
§ 123.2 Import jurisdiction.
The Department of State regulates the temporary import of defense articles. Permanent imports of defense articles into the United States are regulated by the Department of the Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives under the direction of the Attorney General (see 27 CFR parts 447, 478, 479, and 555).
§ 123.3 Temporary import licenses.
(a) A license (DSP-61) issued by the Directorate of Defense Trade Controls is required for the temporary import and subsequent export of unclassified defense articles, unless exempted from this requirement pursuant to § 123.4. This requirement applies to:
(1) Temporary imports of unclassified defense articles that are to be returned directly to the country from which they were shipped to the United States;
(2) Temporary imports of unclassified defense articles in transit to a third country;
(b) A bond may be required as appropriate (see part 125 of this subchapter for license requirements for technical data and classified defense articles.)
(c) A DSP-61 license may be obtained by a U.S. importer in satisfaction of § 123.4(c)(4) of this subchapter. If a foreign exporter requires documentation for a permanent import, the U.S. importer must contact the Department of Justice’s Bureau of Alcohol, Tobacco, Firearms and Explosives for the appropriate documentation. A DSP-61 will not be approved to support permanent import requirements.
§ 123.4 Temporary import license exemptions.
(a) Port Directors of U.S. Customs and Border Protection shall permit the temporary import (and subsequent export) without a license, for a period of up to 4 years, of unclassified U.S.-origin defense items (including any items manufactured abroad pursuant to U.S. Government approval) if the item temporarily imported:
(1) Is serviced (e.g., inspection, testing, calibration or repair, including overhaul, reconditioning and one-to-one replacement of any defective items, parts or components, but excluding any modifications, enhancement, upgrade or other form of alteration or improvement that changes the basic performance of the item), and is subsequently returned to the country from which it was imported. Shipment may be made by the U.S. importer or a foreign government representative of the country from which the goods were imported; or
(2) Is to be enhanced, upgraded or incorporated into another item which has already been authorized by the Directorate of Defense Trade Controls for permanent export; or
(3) Is imported for the purpose of exhibition, demonstration or marketing in the United States and is subsequently returned to the country from which it was imported; or
(4) Has been rejected for permanent import by the Department of Justice and is being returned to the country from which it was shipped; or
(5) Is approved for such import under the U.S. Foreign Military Sales (FMS) program pursuant to an executed U.S. Department of Defense Letter of Offer and Acceptance (LOA).
These Exceptions do not apply to shipments that transit the U.S. to or from Canada (see § 123.19 and § 126.5 of this subchapter for exceptions).
(b) Port Directors of U.S. Customs and Border Protection shall permit the temporary import (but not the subsequent export) without a license of unclassified defense articles that are to be incorporated into another article, or modified, enhanced, upgraded, altered, improved or serviced in any other manner that changes the basic performance or productivity of the article prior to being returned to the country from which they were shipped or prior to being shipped to a third country. A DSP-5 is required for the reexport of such unclassified defense articles after incorporation into another article, modification, enhancement, upgrading, alteration or improvement.
(c) Requirements. To use an exemption under § 123.4 (a) or (b), the following criteria must be met:
(1) The importer must meet the eligibility requirements set forth in § 120.16 of this subchapter;
(2) At the time of export, the ultimate consignee named on the Electronic Export Information (EEI) must be the same as the foreign consignee or end-user of record named at the time of import;
(3) A stated in § 126.1 of this subchapter, the temporary import must not be from or on behalf of a proscribed country, area, or person listed in that section unless an exception has been granted in accordance with § 126.3 of this subchapter; and
(4) The foreign exporter must not require documentation of U.S. Government approval of the temporary import. If the foreign exporter requires documentation for a temporary import that qualifies for an exemption under this subchapter, the U.S. importer will not be able to claim the exemption and is required to obtain a DSP-61 Application/License for Temporary Import of Unclassified Defense Articles.
(d) Procedures. To the satisfaction of the Port Directors of U.S. Customs and Border Protection, the importer and exporter must comply with the following procedures:
(1) At the time of temporary import –
(i) File and annotate the applicable U.S. Customs and Border Protection document (e.g., Form CF 3461, 7512, 7501, 7523 or 3311) to read: “This shipment is being imported in accordance with and under the authority of 22 CFR 123.4(a) (identify subsection),” and
(ii) Include, on the invoice or other appropriate documentation, a complete list and description of the defense article(s) being imported, including quantity and U.S. dollar value; and
(2) At the time of export, in accordance with the U.S. Customs and Border Protection (CBP) procedures, the Directorate of Defense Trade Controls (DDTC) registered and eligible exporter, or an agent acting on the filer’s behalf, must electronically file the export information with CBP, identify 22 CFR 123.4 as the authority for the export, and provide, as requested by CBP, the entry document number or a copy of the CBP document under which the article was imported.
§ 123.5 Temporary export licenses.
(a) The Directorate of Defense Trade Controls may issue a license for the temporary export of unclassified defense articles (DSP-73). Such licenses are valid only if the article will be exported for a period of less than 4 years and will be returned to the United States and transfer of title will not occur during the period of temporary export. Accordingly, articles exported pursuant to a temporary export license may not be sold or otherwise permanently transferred to a foreign person while they are overseas under a temporary export license. A renewal of the license or other written approval must be obtained from the Directorate of Defense Trade Controls if the article is to remain outside the United States beyond the period for which the license is valid.
(b) Requirements. Defense articles authorized for temporary export under this section may be shipped only from a port in the United States where a Port Director of U.S. Customs and Border Protection is available, or from a U.S. Post Office (see 39 CFR part 20), as appropriate. The license for temporary export must be presented to the Port Director of U.S. Customs and Border Protection who, upon verification, will endorse the exit column on the reverse side of the license. The license for temporary export must be electronically submitted to U.S. Customs and Border Protection, unless electronic reporting of such information is unavailable, in which case U.S. Customs and Border Protection will issue instructions. In the event a physical license is required by U.S. Customs and Border Protection, the licensee is to retain the duly endorsed license for temporary export in accordance with § 123.22(b) of this subchapter. In the case of a military aircraft or vessel temporarily exported under its own power, evidence that the Department of State has duly authorized it to leave the United States must be readily available on board the aircraft or vessel.
(c) Any temporary export license for hardware that is used, regardless of whether the hardware was exported directly to the foreign destination or returned directly from the foreign destination, must be endorsed by the U.S. Customs and Border Protection in accordance with the procedures in § 123.22 of this subchapter.
§ 123.6 Foreign trade zones and U.S. Customs and Border Protection bonded warehouses.
Foreign trade zones in the United States and U.S. Customs and Border Protection bonded warehouses are considered integral parts of the United States for the purpose of this subchapter. An export license is therefore not required for shipment between the United States and a foreign trade zone or a U.S. Customs and Border Protection bonded warehouse. In the case of classified defense articles, the provisions of the Department of Defense National Industrial Security Program Operating Manual will apply. An export license is required for all shipments of articles on the U.S. Munitions List from foreign trade zones and U.S. Customs and Border Protection bonded warehouses to foreign countries, regardless of how the articles reached the zone or warehouse.
§ 123.7 Exports to warehouses or distribution points outside the United States.
Unless the exemption under § 123.16(b)(1) is used, a license is required to export defense articles to a warehouse or distribution point outside the United States for subsequent resale and will normally be granted only if an agreement has been approved pursuant to § 124.14 of this subchapter.
§ 123.8 Special controls on vessels, aircraft and satellites covered by the U.S. Munitions List.
(a) Transferring registration or control to a foreign person of any aircraft, vessel, or satellite on the U.S. Munitions List is an export for purposes of this subchapter and requires a license or written approval from the Directorate of Defense Trade Controls. This requirement applies whether the aircraft, vessel, or satellite is physically located in the United States or abroad.
(b) The registration in a foreign country of any aircraft, vessel or satellite covered by the U.S. Munitions List which is not registered in the United States but which is located in the United States constitutes an export. A license or written approval from the Directorate of Defense Trade Controls is therefore required. Such transactions may also require the prior approval of the U.S. Department of Transportation’s Maritime Administration, the Federal Aviation Administration or other agencies of the U.S. Government.
§ 123.9 Country of ultimate destination and approval of reexports or retransfers.
(a) The country designated as the country of ultimate destination on an application for an export license, or in an Electronic Export Information filing where an exemption is claimed under this subchapter, must be the country of ultimate end-use. The written approval of the Directorate of Defense Trade Controls must be obtained before reselling, transferring, reexporting, retransferring, transshipping, or disposing of a defense article to any end-user, end-use, or destination other than as stated on the export license, or in the Electronic Export Information filing in cases where an exemption is claimed under this subchapter, except in accordance with the provisions of an exemption under this subchapter that explicitly authorizes the resell, transfer, reexport, retransfer, transshipment, or disposition of a defense article without such approval. Exporters must determine the specific end-user, end-use, and destination prior to submitting an application to the Directorate of Defense Trade Controls or claiming an exemption under this subchapter.
In making the aforementioned determination, a person is expected to review all readily available information, including information readily available to the public generally as well as information readily available from other parties to the transaction.
(b) The exporter, U.S. or foreign, must inform the end-user and all consignees that the defense articles being exported are subject to U.S. export laws and regulations as follows:
(1) The exporter must incorporate the following information as an integral part of the commercial invoice, whenever defense articles are to be shipped (exported in tangible form), retransferred (in tangible form), or reexported (in tangible form) pursuant to a license or other approval under this subchapter:
(i) The country of ultimate destination;
(ii) The end-user;
(iii) The license or other approval number or exemption citation; and
(iv) The following statement: “These items are controlled by the U.S. government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.”
The phrase “or as otherwise authorized by U.S. law and regulations” is included because U.S. regulations contain specific exemptions from licensing requirements (e.g., ITAR exemptions, and EAR license exceptions and No License Required designations) and allow for certain amounts of U.S. origin content in foreign made items (see 15 CFR 734).
(2) When exporting items subject to the EAR pursuant to a Department of State license or other approval, the U.S. exporter must also provide the end-user and consignees with the appropriate EAR classification information for each item. This includes the Export Control Classification Number (ECCN) or EAR99 designation.
(c) Any U.S. person or foreign person requesting written approval from the Directorate of Defense Trade Controls for the reexport, retransfer, other disposition, or change in end-use, end-user, or destination of a defense article initially exported or transferred pursuant to a license or other written approval, or an exemption under this subchapter, must submit all the documentation required for a permanent export license (see § 123.1 of this subchapter) and shall also submit the following:
(1) The license number, written authorization, or exemption under which the defense article or defense service was previously authorized for export from the United States (
(2) A precise description, quantity, and value of the defense article or defense service;
(3) A description and identification of the new end-user, end-use, and destination; and
(4) With regard to any request for such approval relating to a defense article or defense service initially exported pursuant to an exemption contained in § 126.16 or § 126.17 of this subchapter, written request for the prior approval of the transaction from the Directorate of Defense Trade Controls must be submitted: By the original U.S. exporter, provided a written request is received from a member of the Australian Community, as identified in § 126.16 of this subchapter, or the United Kingdom Community, as identified in § 126.17 of this subchapter (where such a written request includes a written certification from the member of the Australian Community or the United Kingdom Community providing the information set forth in § 126.17 of this subchapter); or by a member of the Australian Community or the United Kingdom Community, where such request provides the information set forth in this section. All persons must continue to comply with statutory and regulatory requirements outside of this subchapter concerning the import of defense articles and defense services or the possession or transfer of defense articles, including, but not limited to, regulations issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives found at 27 CFR parts 447, 478, and 479, which are unaffected by the Defense Trade Cooperation Treaty between the United States and the United Kingdom and continue to apply fully to defense articles and defense services subject to either of the aforementioned treaties and the exemptions contained in § 126.17 of this subchapter.
(d) The Directorate of Defense Trade Controls may authorize reexport or retransfer of an item subject to the EAR provided that:
(1) The item was initially exported, reexported or transferred pursuant to a Department of State license or other approval;
(2) The item is for end-use in or with a defense article; and
(3) All requirements of paragraph (c) of this section are satisfied for the item subject to the EAR, as well as for the associated defense article.
(e) Reexports or retransfers of U.S.-origin components incorporated into a foreign defense article to NATO, NATO agencies, a government of a NATO country, or the governments of Australia, Israel, Japan, New Zealand, or the Republic of Korea are authorized without the prior written approval of the Directorate of Defense Trade Controls, provided:
(1) The U.S.-origin components were previously authorized for export from the United States, either by a license, written authorization, or an exemption other than those described in either § 126.16 or § 126.17 of this subchapter;
(2) The U.S.-origin components are not significant military equipment, the items are not major defense equipment sold under contract in the amount of $25,000,000 ($25 million) or more; the articles are not defense articles or defense services sold under a contract in the amount of $100,000,000 ($100 million) or more; and are not identified in part 121 of this subchapter as Missile Technology Control Regime (MTCR) items; and
(3) The person reexporting the defense article provides written notification to the Directorate of Defense Trade Controls of the retransfer not later than 30 days following the reexport. The notification must state the articles being reexported and the recipient government.
(4) The original license or other approval of the Directorate of Defense Trade Controls did not include retransfer or reexport restrictions prohibiting use of this exemption.
§ 123.10 Non-transfer and use assurances.
(a) A nontransfer and use certificate (Form DSP-83) is required for the export of significant military equipment and classified articles, including classified technical data. A license will not be issued until a completed Form DSP-83 has been received by the Directorate of Defense Trade Controls. This form is to be executed by the foreign consignee, foreign end-user, and the applicant. The certificate stipulates that, except as specifically authorized by prior written approval of the Department of State, the foreign consignee and foreign end-user will not reexport, resell or otherwise dispose of the significant military equipment enumerated in the application outside the country named as the location of the foreign end-use or to any other person.
(b) The Directorate of Defense Trade Controls may also require a DSP-83 for the export of any other defense articles, including technical data, or defense services.
(c) When a DSP-83 is required for an export of any defense article or defense service to a non-governmental foreign end-user, the Directorate of Defense Trade Controls may require as a condition of issuing the license that the appropriate authority of the government of the country of ultimate destination also execute the certificate.
§ 123.11 Movements of vessels and aircraft covered by the U.S. Munitions List outside the United States.
(a) A license issued by the Directorate of Defense Trade Controls is required whenever a privately-owned aircraft or vessel on the U.S. Munitions List makes a voyage outside the United States.
(b) Exemption. An export license is not required when a vessel or aircraft referred to in paragraph (a) of this section departs from the United States and does not enter the territorial waters or airspace of a foreign country if no defense articles are carried as cargo. Such a vessel or aircraft may not enter the territorial waters or airspace of a foreign country before returning to the United States, or carry as cargo any defense article, without a temporary export license (Form DSP-73) from the Department of State. (See § 123.5.)
§ 123.12 Shipments between U.S. possessions.
An export license is not required for the shipment of defense articles between the United States, the Commonwealth of Puerto Rico, and U.S. possessions. A license is required, however, for the export of defense articles from these areas to foreign countries.
§ 123.13 Domestic aircraft shipments via a foreign country.
A license is not required for the shipment by air of a defense article from one location in the United States to another location in the United States via a foreign country.
§ 123.14 Import certificate/delivery verification procedure.
(a) The Import Certificate/Delivery Verification Procedure is designed to assure that a commodity imported into the territory of those countries participating in IC/DV procedures will not be diverted, transshipped, or reexported to another destination except in accordance with export control regulations of the importing country.
(b) Exports. The Directorate of Defense Trade Controls may require the IC/DV procedure on proposed exports of defense articles to non-government entities in those countries participating in IC/DV procedures. In such cases, U.S. exporters must submit both an export license application (the completed Form DSP-5) and the original Import Certificate, which must be provided and authenticated by the government of the importing country. This document verifies that the foreign importer complied with the import regulations of the government of the importing country and that the importer declared the intention not to divert, transship or reexport the material described therein without the prior approval of that government. After delivery of the commodities to the foreign consignee, the Directorate of Defense Trade Controls may also require U.S. exporters to furnish Delivery Verification documentation from the government of the importing country. This documentation verifies that the delivery was in accordance with the terms of the approved export license. Both the Import Certificate and the Delivery Verification must be furnished to the U.S. exporter by the foreign importer.
(c) Triangular transactions. When a transaction involves three or more countries that have adopted the IC/DV procedure, the governments of these countries may stamp a triangular symbol on the Import Certificate. This symbol is usually placed on the Import Certificate when the applicant for the Import Certificate (the importer) states either (1) that there is uncertainty whether the items covered by the Import Certificate will be imported into the country issuing the Import Certificate; (2) that he or she knows that the items will not be imported into the country issuing the Import Certificate; or (3) that, if the items are to be imported into the country issuing the Import Certificate, they will subsequently be reexported to another destination. All parties, including the ultimate consignee in the country of ultimate destination, must be shown on the completed Import Certificate.
§ 123.15 Congressional certification pursuant to Section 36(c) of the Arms Export Control Act.
(a) The Arms Export Control Act requires that a certification be provided to the Congress prior to the granting of any license or other approval for transactions, in the amounts described below, involving exports of any defense articles and defense services and for exports of major defense equipment, as defined in § 120.37 of this subchapter. Approvals may not be granted when the Congress has enacted a joint resolution prohibiting the export. Certification is required for any transaction involving:
(1) A license for the export of major defense equipment sold under a contract in the amount of $14,000,000 or more, or for defense articles and defense services sold under a contract in the amount of $50,000,000 or more, to any country that is not a member of the North Atlantic Treaty Organization (NATO), or Australia, Israel, Japan, New Zealand, or the Republic of Korea that does not authorize a new sales territory; or
(2) A license for export to a country that is a member country of NATO, or Australia, Israel, Japan, New Zealand, or the Republic of Korea, of major defense equipment sold under a contract in the amount of $25,000,000 or more, or for defense articles and defense services sold under a contract in the amount of $100,000,000 or more, and provided the transfer does not include any other countries; or
(3) A license for export of defense articles controlled under Category I paragraphs (a) through (g) of the United States Munitions List, § 121.1 of this subchapter, in an amount of $1,000,000 or more.
(b) Unless an emergency exists which requires the final export in the national security interests of the United States, approval may not be granted for any transaction until at least 15 calendar days have elapsed after receipt by the Congress of the certification required by 22 U.S.C. 2776(c)(1) involving NATO, or Australia, Israel, Japan, New Zealand, or the Republic of Korea or at least 30 calendar days have elapsed for any other country; in the case of a license for an export of a commercial communications satellite for launch from, and by nationals of, the Russian Federation, Ukraine, or Kazakhstan, until at least 15 calendar days after the Congress receives such certification.
(c) Persons who intend to export defense articles and defense services pursuant to any exemption in this subchapter under the circumstances described in this section must provide written notification to the Directorate of Defense Trade Controls and include a signed contract and a DSP-83 signed by the applicant, the foreign consignee and the end-user.
§ 123.16 Exemptions of general applicability.
(a) The following exemptions apply to exports of unclassified defense articles for which no approval is needed from the Directorate of Defense Trade Controls. These exemptions do not apply to: Proscribed destinations under § 126.1 of this subchapter; exports for which Congressional notification is required (see § 123.15 of this subchapter); MTCR articles; Significant Military Equipment (SME); and may not be used by persons who are generally ineligible as described in § 120.16 of this subchapter. All shipments of defense articles, including but not limited to those to Australia, Canada, and the United Kingdom, require an Electronic Export Information (EEI) filing or notification letter. If the export of a defense article is exempt from licensing, the EEI filing must cite the exemption. Refer to § 123.22 of this subchapter for EEI filing and letter notification requirements.
(b) The following exports are exempt from the licensing requirements of this subchapter.
(1) Port Directors of U.S. Customs and Border Protection shall permit the export without a license of defense hardware being exported in furtherance of a manufacturing license agreement, technical assistance agreement, distribution agreement or an arrangement for distribution of items identified in Category XIII(b)(1), approved in accordance with part 124, provided that:
(i) The defense hardware to be exported supports the activity and is identified by item, quantity and value in the agreement or arrangement; and
(ii) Any provisos or limitations placed on the authorized agreement or arrangement are adhered to; and
(iii) The exporter identifies in the EEI filing by selecting the appropriate code that the export is exempt from the licensing requirements of this subchapter; and
(iv) The total value of all shipments does not exceed the value authorized in the agreement or arrangement.
(v) In the case of a distribution agreement, export must be made directly to the approved foreign distributor.
(2) Port Directors of U.S. Customs and Border Protection shall permit the export of parts or components without a license when the total value does not exceed $500 in a single transaction and:
(i) The components or spare parts are being exported to support a defense article previously authorized for export; and
(ii) The spare parts or components are not going to a distributor, but to a previously approved end-user of the defense articles; and
(iii) The spare parts or components are not to be used to enhance the capability of the defense article;
(iv) Exporters shall not split orders so as not to exceed the dollar value of this exemption;
(v) The exporter may not make more than 24 shipments per calendar year to the previously authorized end user;
(vi) The exporter must certify on the invoice, the bill of lading, air waybill, or shipping documents that the export is exempt from the licensing requirements of this subchapter. This is done by writing “22 CFR 123.16(b)(2) applicable.”
(3) Port Directors of U.S. Customs and Border Protection shall permit the export without a license, of packing cases specially designed to carry defense articles.
(4) Port Directors of U.S. Customs and Border Protection shall permit the export without a license, of unclassified models or mock-ups of defense articles, provided that such models or mock-ups are inoperable and do not reveal any technical data in excess of that which is exempted from the licensing requirements of § 125.4(b) of this subchapter and do not contain components (see § 120.40(c) of this subchapter) covered by the U.S. Munitions List (see § 121.1 of this subchapter). Some models or mockups built to scale or constructed of original materials can reveal technical data. U.S. persons who avail themselves of this exemption must electronically submit a certification to U.S. Customs and Border Protection that these conditions are met, unless directed by U.S. Customs and Border Protection to provide such a certification in another manner. This exemption does not imply that the Directorate of Defense Trade Controls will approve the export of any defense articles for which models or mocks-ups have been exported pursuant to this exemption.
(5) Port Directors of U.S. Customs and Border Protection shall permit the temporary export without a license of unclassified defense articles to any public exhibition, trade show, air show or related event if that article has previously been licensed for a public exhibition, trade show, air show or related event and the license is still valid. U.S. persons who avail themselves of this exemption must electronically submit a certification to U.S. Customs and Border Protection that these conditions are met, unless directed by U.S. Customs and Border Protection to provide such a certification in another manner.
(6) For exemptions for personal protective gear, refer to § 123.17.
(7) [Reserved]
(8) For exports to Canada refer to § 126.5 of this subchapter.
(9) Port Directors of U.S. Customs and Border Protection shall permit the temporary export without a license by a U.S. person of any unclassified component, part, tool or test equipment to a subsidiary, affiliate or facility owned or controlled by the U.S. person (see § 120.65 of this subchapter for definition of foreign ownership and foreign control) if the component, part, tool or test equipment is to be used for manufacture, assembly, testing, production, or modification provided:
(i) The U.S. person is registered with the Directorate of Defense Trade Controls and complies with all requirements set forth in part 122 of this subchapter;
(ii) No defense article exported under this exemption may be sold or transferred without the appropriate license or other approval from the Directorate of Defense Trade Controls.
(10) [Reserved]
§ 123.17 Exemption for personal protective gear.
(a)-(e) [Reserved]
(f) Port Directors of U.S. Customs and Border Protection (CBP) shall permit U.S. persons to export temporarily from the United States without a license one set of body armor covered by U.S. Munitions List Category X(a)(1), which may include one helmet covered by U.S. Munitions List Category X(a)(6), or one set of chemical agent protective gear covered by U.S. Munitions List Category XIV(f)(4), which may include one additional filter canister, provided:
(1) The person declares the articles to a CBP officer upon each departure from the United States, presents the Internal Transaction Number from submission of the export information through CBP’s electronic system(s) per § 123.22 (unless electronic reporting of such information is unavailable, in which case U.S. Customs and Border Protection will issue instructions), and the articles are presented to the CBP officer for inspection;
(2) The body armor, which may include a helmet, or chemical agent protective gear, which may include one additional filter canister, to be exported is with the individual’s baggage or effects, whether accompanied or unaccompanied (but not mailed); and
(3) The body armor, which may include a helmet, or chemical agent protective gear, which may include one additional filter canister, to be exported is for that person’s exclusive use and not for reexport or other transfer of ownership. The person must declare it is his intention to return the article(s) to the United States at the end of tour, contract, or assignment for which the articles were temporarily exported.
(g) The license exemption set forth in paragraph (f) of this section is available for the temporary export of body armor or chemical agent protective gear for personal use to countries listed in § 126.1 of this subchapter provided:
(1) The conditions in paragraph (f) of this section are met; and
(2) The person is affiliated with the U.S. Government traveling on official business or is traveling in support of a U.S. Government contract. The person shall electronically submit documentation to this effect, along with the Internal Transaction Number from U.S. Customs and Border Protection’s electronic system(s), unless electronic reporting of such information is unavailable, in which case U.S. Customs and Border Protection will issue instructions.
(h) The license exemption set forth in paragraph (f) of this section is available for the temporary export of body armor, which may include a helmet, or chemical agent protective gear, which may include one additional filter canister, for personal use to Iraq, provided the conditions in paragraph (f) are met, and the person is either affiliated with the U.S. Government traveling on official business or is traveling in support of a U.S. Government contract, or is traveling to Iraq under a direct authorization by the Government of Iraq and engaging in activities for, on behalf of, or at the request of, the Government of Iraq. The person shall electronically submit documentation to this effect, along with the Internal Transaction Number using U.S. Customs and Border Protection’s electronic system(s), unless electronic reporting of such information is unavailable, in which case U.S. Customs and Border Protection will issue instructions. Documentation regarding direct authorization from the Government of Iraq shall include an English translation.
(i) The license exemption set forth in paragraph (f) of this section is available for the temporary export of body armor, which may include a helmet, or chemical agent protective gear, which may include one additional filter canister, for personal use to Afghanistan, provided the conditions in paragraph (f) are met.
(j) If the articles temporarily exported pursuant to paragraphs (f) through (i) of this section are not returned to the United States, a detailed report must be submitted to the Office of Defense Trade Controls Compliance in accordance with the requirements of § 127.12(c)(2) of this subchapter.
(k) To use the exemptions in this section, individuals are not required to be registered with the Department of State (the registration requirement is described in part 122 of this subchapter). All other entities must be registered and eligible, as provided in §§ 120.15(d) and 120.16(c) and part 122 of this subchapter.
§ 123.18 [Reserved]
§ 123.19 Canadian and Mexican border shipments.
A shipment originating in Canada or Mexico which incidentally transits the United States en route to a delivery point in the same country that originated the shipment is exempt from the requirement for an in transit license.
§ 123.20 [Reserved]
§ 123.21 Duration, renewal, and disposition of licenses.
(a) A license is valid for four years. The license expires when the total value or quantity authorized has been shipped or when the date of expiration has been reached, whichever occurs first. Defense articles to be shipped thereafter require a new application and license. The new application should refer to the expired license. It should not include references to any defense articles other than those of the unshipped balance of the expired license.
(b) Unused, expired, suspended, or revoked licenses must be handled in accordance with § 123.22(c) of this subchapter.
§ 123.22 Filing, retention, and return of export licenses and filing of export information.
(a) Any export, as defined in this subchapter, of a defense article controlled by this subchapter, to include defense articles transiting the United States, requires the electronic reporting of export information. The reporting of the export information shall be to the U.S. Customs and Border Protection using its electronic system(s), or directly to the Directorate of Defense Trade Controls (DDTC), as appropriate. Before the export of any hardware, via a license or other authorization, the DDTC registered applicant/exporter, or an agent acting on the filer’s behalf, must electronically submit export information to U.S. Customs and Border Protection, unless electronic reporting is unavailable, in which case U.S. Customs and Border Protection will issue instructions (see paragraph (b) of this section). In addition to electronically providing the export information to U.S. Customs and Border Protection before export, all mandatory supporting documentation (e.g., attachments, certifications, proof of filing in U.S. Customs and Border Protection’s system(s) such as the Internal Transaction Number (ITN)) must be submitted electronically, unless electronic reporting of such information is unavailable, in which case U.S. Customs and Border Protection will issue instructions.
(1) If necessary, an export may be made through a port other than the one designated on the license if the exporter complies with the procedures established by U.S. Customs and Border Protection.
(2) When a defense article is temporarily exported from the United States and subsequently moved from one destination authorized on a license to another destination authorized on the same or another temporary license, the applicant, or an agent acting on the applicant’s behalf, must ensure that U.S. Customs and Border Protection decrements both temporary licenses to show the exit and entry of the hardware.
(b) Filing and reporting of export information – (1) Filing of export information with the U.S. Customs and Border Protection. Before exporting any hardware controlled by this subchapter using a license or exemption, the DDTC registered applicant/exporter, or an agent acting on the filer’s behalf, must electronically file the export information with U.S. Customs and Border Protection in accordance with the following timelines:
(i) Air or truck shipments. The export information must be electronically filed at least 8 hours prior to departure.
(ii) Sea or rail Shipments. The export information must be electronically filed at least 24 hours prior to departure.
(2) Emergency shipments of hardware that cannot meet the pre-departure filing requirements. U.S. Customs and Border Protection may permit an emergency export of hardware by truck or air by a U.S. registered person when the exporter is unable to comply with the Electronic Export Information (EEI) filing timeline in paragraph (b)(1)(i) of this section. The applicant, or an agent acting on the applicant’s behalf, must provide documentation required by the U.S. Customs and Border Protection and this subchapter. The documentation provided to U.S. Customs and Border Protection must include the Internal Transaction Number (ITN) for the shipment and must be accompanied by an explanation for urgency. The export filing via U.S. Customs and Border Protection’s electronic system(s) must be made at least two hours prior to any departure by air from the United States. When shipping via ground, the filing in U.S. Customs and Border Protection’s electronic system(s) must be made when the exporter provides the articles to the carrier or at least one hour prior to departure from the United States, when the permanent export of the hardware has been authorized for export:
(i) In accordance with § 126.4 of this subchapter, or
(ii) On a valid license, and the ultimate recipient and ultimate end-user identified on the license is a foreign government.
(3) Reporting of export information on technical data and defense service. When an export is being made using a DDTC authorization (e.g., technical data license, agreement or a technical data exemption provided in this subchapter), the DDTC registered exporter will retain the license or other approval and provide the export information electronically to DDTC as follows:
(i) Technical data license. Prior to the permanent export of technical data licensed using a Form DSP-5, the applicant shall electronically provide export information using the system for direct electronic reporting to DDTC of export information and self-validate the original of the license. Exports of copies of the licensed technical data should be made in accordance with existing exemptions in this subchapter. Should an exemption not apply, the applicant may request a new license.
(ii) Manufacturing license and technical assistance agreements. Prior to the initial export of any technical data and defense services authorized in an agreement the U.S. agreement holder must electronically inform DDTC that exports have begun. In accordance with this subchapter, all subsequent exports of technical data and services are not required to be filed electronically with DDTC except when the export is done using a U.S. Port. Records of all subsequent exports of technical data shall be maintained by the exporter in accordance with this subchapter and shall be made immediately available to DDTC upon request. Exports of technical data in furtherance of an agreement using a U.S. Port shall be made in accordance with § 125.4 of this subchapter and made in accordance with the procedures in paragraph (b)(3)(iii) of this section.
(iii) Technical data and defense service exemptions. In any instance when technical data is exported using an exemption in this subchapter (e.g., §§ 125.4(b)(2), 125.4(b)(4), 126.5) from a U.S. port, the exporter must provide the export data electronically to DDTC. A copy of the electronic notification to DDTC must accompany the technical data shipment and be made available to the U.S. Customs and Border Protection upon request.
Future changes to the electronic reporting procedure will be amended by publication of a rule in the
(c) Return of licenses. Licenses issued by the Directorate of Defense Trade Controls are subject to return requirements as follows:
(1) A license issued electronically by DDTC and electronically decremented by U.S. Customs and Border Protection through its electronic system(s) is not required to be returned to DDTC. A copy of the license must be maintained by the applicant in accordance with § 122.5 of this subchapter.
(2) Licenses issued by DDTC but not decremented by U.S. Customs and Border Protection through its electronic system(s) (e.g., oral or visual technical data releases) must be maintained by the applicant in accordance with § 122.5 of this subchapter.
(3) A license issued by DDTC but not used by the applicant does not need to be returned to DDTC, even when expired.
(4) A license revoked by DDTC is considered expired and must be handled in accordance with paragraphs (c)(1) and (c)(2) of this section.
§ 123.23 Monetary value of shipments.
Port Directors of U.S. Customs and Border Protection shall permit the shipment of defense articles identified on any license when the total value of the export does not exceed the aggregate monetary value (not quantity) stated on the license by more than ten percent, provided that the additional monetary value does not make the total value of the license or other approval for the export of any major defense equipment sold under a contract reach $14,000,000 or more, and provided that the additional monetary value does not make defense articles or defense services sold under a contract reach the amount of $50,000,000 or more.
§ 123.24 Shipments by U.S. Postal Service.
(a) The export of any defense hardware using a license or exemption in this subchapter by the U.S. Postal Service must be filed with U.S. Customs and Border Protection using its electronic system(s) and the license must be filed with U.S. Customs and Border Protection before any hardware is actually sent abroad by mail. The exporter must certify the defense hardware being exported in accordance with this subchapter by clearly marking on the package: “This export is subject to the controls of the ITAR, 22 CFR (identify section for an exemption) or (state license number) and the export has been electronically filed with U.S. Customs and Border Protection.”
(b) The export of any technical data using a license in this subchapter by the U.S. Postal Service must be notified electronically directly to the Directorate of Defense Trade Controls (DDTC). The exporter, using either a license or exemption, must certify, by clearly marking on the package, “This export is subject to the controls of the ITAR, 22 CFR (identify section for an exemption) or (state license number).” For those exports using a license, the exporter must also state “The export has been electronically notified directly to DDTC.” The license must be returned to DDTC upon completion of the use of the license (see § 123.22(c)).
§ 123.25 Amendments to licenses.
(a) The Directorate of Defense Trade Controls may approve an amendment to a license for permanent export, temporary export and temporary import of unclassified defense articles. A suggested format is available from the Directorate of Defense Trade Controls.
(b) The following types of amendments to a license will be considered: Addition of U.S. freight forwarder or U.S. consignor; change due to an obvious typographical error; change in source of commodity; and change of foreign intermediate consignee if that party is only transporting the equipment and will not process (e.g., integrate, modify) the equipment. For changes in U.S. dollar value see § 123.23.
(c) The following types of amendments to a license will not be approved: Additional quantity, changes in commodity, country of ultimate destination, end-use or end-user, foreign consignee and/or extension of duration. The foreign intermediate consignee may only be amended if that party is acting as freight forwarder and the export does not involve technical data. A new license is required for these changes. Any new license submission must reflect only the unshipped balance of quantity and dollar value.
§ 123.26 [Reserved]
§ 123.27 Special licensing regime for export to U.S. allies of commercial communications satellite components, systems, parts, accessories, attachments and associated technical data.
(a) U.S. persons engaged in the business of exporting specifically designed or modified components, systems, parts, accessories, attachments, associated equipment and certain associated technical data for commercial communications satellites, and who are so registered with the Directorate of Defense Trade Controls pursuant to part 122 of this subchapter, may submit license applications for multiple permanent and temporary exports and temporary imports of such articles for expeditious consideration without meeting the documentary requirements of § 123.1(c)(4) and (5) concerning purchase orders, letters of intent, contracts and non-transfer and end use certificates, or the documentary requirements of § 123.9, concerning approval of re-exports or re-transfers, when all of the following requirements are met:
(1) The proposed exports or re-exports concern exclusively one or more countries of the North Atlantic Treaty Organization and/or one or more countries which have been designated in accordance with section 517 of the Foreign Assistance Act of 1961 and with section 1206 of the Foreign Relations Authorization Act, Fiscal Year 2003 as a major non-NATO ally.
(2) The proposed exports concern exclusively one or more foreign persons (e.g., companies or governments) located within the territories of the countries identified in paragraph (a)(1) of this section, and one or more commercial communications satellite programs included within a list of such persons and programs approved by the U.S. Government for purposes of this section, as signified in a list of such persons and programs that will be publicly available through the Internet Web site of the Directorate of Defense Trade Controls and by other means.
(3) The articles are not major defense equipment sold under a contract in the amount of $14,000,000 or more or defense articles or defense services sold under a contract in the amount of $50,000,000 or more (for which purpose, as is customary, exporters may not split contracts or purchase orders). Items meeting these statutory thresholds must be submitted on a separate license application to permit the required notification to Congress pursuant to section 36(c) of the Arms Export Control Act.
(4) The articles are not detailed design, development, manufacturing or production data and do not involve the manufacture abroad of significant military equipment.
(5) The U.S. exporter provides complete shipment information to the Directorate of Defense Trade Controls within 15 days of shipment by submitting a report containing a description of the item and the quantity, value, port of exit, and end-user and country of destination of the item, and at that time meets the documentary requirements of § 123.1(c)(4) and (5), the documentary requirements of § 123.9 in the case of re-exports or re-transfers, and, other documentary requirements that may be imposed as a condition of a license (e.g., parts control plans for MTCR-controlled items). The shipment information reported must include a description of the item and quantity, value, port of exit and end user and country of destination of the item.
(6) At any time in which an item exported pursuant to this section is proposed for re-transfer outside of the approved territory, programs or persons (e.g., such as in the case of an item included in a satellite for launch beyond the approved territory), the detailed requirements of § 123.9 apply with regard to obtaining the prior written consent of the Directorate of Defense Trade Controls.
(b) The re-export or re-transfer of the articles authorized for export (including to specified re-export destinations) in accordance with this section do not require the separate prior written approval of the Directorate of Defense Trade Controls provided all of the requirements in paragraph (a) of this section are met.
(c) The Directorate of Defense Trade Controls will consider, on a case-by-case basis, requests to include additional foreign companies and satellite programs within the geographic coverage of a license application submitted pursuant to this section from countries not otherwise covered, who are members of the European Space Agency or the European Union. In no case, however, can the provisions of this section apply or be relied upon by U.S. exporters in the case of countries who are subject to the mandatory requirements of Section 1514 of the Strom Thurmond National Defense Authorization Act for Fiscal Year 1999 (Pub. L. 105-261), concerning national security controls on satellite export licensing.
(d) Registered U.S. exporters may request at the time of a license application submitted pursuant to this section that additional foreign persons or communications satellite programs be added to the lists referred to in paragraph (a)(2) of this section, which additions, if approved, will be included within the publicly available lists of authorized recipients and programs.
§ 123.28 Scope of a license.
Unless limited by a condition set out in a license, the export, reexport, retransfer, or temporary import authorized by a license is for the item(s), end-use(s), and parties described in the license application and any letters of explanation. DDTC grants licenses in reliance on representations the applicant made in or submitted in connection with the license application, letters of explanation, and other documents submitted.
PART 124 – AGREEMENTS, OFF-SHORE PROCUREMENT, AND OTHER DEFENSE SERVICES
§ 124.1 Manufacturing license agreements and technical assistance agreements.
(a) Approval. The approval of the Directorate of Defense Trade Controls must be obtained before the defense services described in § 120.32 of this subchapter may be furnished. In order to obtain such approval, the U.S. person must submit a proposed agreement to the Directorate of Defense Trade Controls. Such agreements are generally characterized as manufacturing license agreements, technical assistance agreements, distribution agreements, or off-shore procurement agreements, and may not enter into force without the prior written approval of the Directorate of Defense Trade Controls. Once approved, the defense services described in the agreements may generally be provided without further licensing in accordance with §§ 124.3 and 125.4(b)(2) of this subchapter. The requirements of this section apply whether or not technical data is to be disclosed or used in the performance of the defense services described in § 120.32 of this subchapter (e.g., all the information relied upon by the U.S. person in performing the defense service is in the public domain or is otherwise exempt from licensing requirements of this subchapter pursuant to § 125.4 of this subchapter). This requirement also applies to the training of any foreign military forces, regular and irregular, in the use of defense articles. Technical assistance agreements must be submitted in such cases. In exceptional cases, the Directorate of Defense Trade Controls, upon written request, will consider approving the provision of defense services described in § 120.32 of this subchapter by granting a license under part 125 of this subchapter.
(b) Classified articles. Copies of approved agreements involving the release of classified defense articles will be forwarded by the Directorate of Defense Trade Controls to the Defense Security Service of the Department of Defense.
(c) Amendments. Changes to the scope of approved agreements, including modifications, upgrades, or extensions must be submitted for approval. The amendments may not enter into force until approved by the Directorate of Defense Trade Controls.
(d) Minor amendments. Amendments which only alter delivery or performance schedules, or other minor administrative amendments which do not affect in any manner the duration of the agreement or the clauses or information which must be included in such agreements because of the requirements of this part, do not have to be submitted for approval. One copy of all such minor amendments must be submitted to the Directorate of Defense Trade Controls within thirty days after they are concluded.
(e) Unless limited by a condition set out in an agreement, the export, reexport, retransfer, or temporary import authorized by a license is for the item(s), end-use(s), and parties described in the agreement, license, and any letters of explanation. DDTC approves agreements and grants licenses in reliance on representations the applicant made in or submitted in connection with the agreement, letters of explanation, and other documents submitted.
§ 124.2 Exemptions for training and military service.
(a) Technical assistance agreements are not required for the provision of training in the basic operation and maintenance of defense articles lawfully exported or authorized for export to the same recipient. This does not include training in intermediate and depot level maintenance.
(b) Services performed as a member of the regular military forces of a foreign nation by U.S. persons who have been drafted into such forces are not deemed to be defense services for purposes of § 120.32 of this subchapter.
(c) NATO countries, Australia, Japan, and Sweden, in addition to the basic maintenance training exemption provided in § 124.2(a) and basic maintenance information exemption in § 125.4(b)(5) of this subchapter, no technical assistance agreement is required for maintenance training or the performance of maintenance, including the export of supporting technical data, when the following criteria can be met:
(1) Defense services are for unclassified U.S.-origin defense articles lawfully exported or authorized for export and owned or operated by and in the inventory of NATO or the Federal Governments of NATO countries, Australia, Japan or Sweden.
(2) This defense service exemption does not apply to any transaction involving defense services for which congressional notification is required in accordance with § 123.15 and § 124.11 of this subchapter.
(3) Maintenance training or the performance of maintenance must be limited to inspection, testing, calibration or repair, including overhaul, reconditioning and one-to-one replacement of any defective items, parts or components; and excluding any modification, enhancement, upgrade or other form of alteration or improvement that enhances the performance or capability of the defense article. This does not preclude maintenance training or the performance of maintenance that would result in enhancements or improvements only in the reliability or maintainability of the defense article, such as an increased mean time between failure (MTBF).
(4) Supporting technical data must be unclassified and must not include software documentation on the design or details of the computer software, software source code, design methodology, engineering analysis, or manufacturing know-how.
(5) This defense service exemption does not apply to maintenance training or the performance of maintenance and service or the transfer of supporting technical data for the following defense articles:
(i) All Missile Technology Control Regime Annex Items;
(ii) Firearms listed in Category I; and ammunition listed in Category III for the firearms in Category I;
(iii) [Reserved]
(iv) Naval nuclear propulsion equipment listed in USML Category VI and USML Category XX;
(v) Gas turbine engine hot sections covered by Category XIX(f);
(vi) Category VIII(f);
(vii) Category XII(c);
(viii) Chemical agents listed in Category XIV (a), biological agents in Category XIV (b), and equipment listed in Category XIV (c) for dissemination of the chemical agents and biological agents listed in Categories XIV (a) and (b);
(ix) [Reserved]
(x) Category XV;
(xi) [Reserved]
(xii) Submersible and semi-submersible vessels and related articles covered in USML Category XX; or
(xiii) Miscellaneous articles covered by Category XXI.
(6) Eligibility criteria for foreign persons. Foreign persons eligible to receive technical data or maintenance training under this exemption are limited to nationals of the NATO countries, Australia, Japan, or Sweden.
§ 124.3 Exports of technical data in furtherance of an agreement.
(a) Unclassified technical data. The U.S. Customs and Border Protection or U.S. Postal authorities shall permit the export without a license of unclassified technical data if the export is in furtherance of a manufacturing license or technical assistance agreement which has been approved in writing by the Directorate of Defense Trade Controls (DDTC) and the technical data does not exceed the scope or limitations of the relevant agreement. The approval of the DDTC must be obtained for the export of any unclassified technical data that may exceed the terms of the agreement.
(b) Classified technical data. The export of classified information in furtherance of an approved manufacturing license or technical assistance agreement which provides for the transmittal of classified information does not require further approval from the Directorate of Defense Trade Controls when:
(1) The United States party certifies to the Department of Defense transmittal authority that the classified information does not exceed the technical or product limitations in the agreement; and
(2) The U.S. party complies with the requirements of the Department of Defense National Industrial Security Program Operating Manual concerning the transmission of classified information (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed) and any other requirements of cognizant U.S. departments or agencies.
§ 124.4 Deposit of signed agreements with the Directorate of Defense Trade Controls.
(a) The United States party to a manufacturing license or a technical assistance agreement must file one copy of the concluded agreement with the Directorate of Defense Trade Controls not later than 30 days after it enters into force. If the agreement is not concluded within one year of the date of approval, the Directorate of Defense Trade Controls must be notified in writing and be kept informed of the status of the agreement until the requirements of this paragraph or the requirements of § 124.5 are satisfied.
(b) In the case of concluded agreements involving coproduction or licensed production outside of the United States of defense articles of United States origin, a written statement must accompany filing of the concluded agreement with the Directorate of Defense Trade Controls, which shall include:
(1) The identity of the foreign countries, international organization, or foreign firms involved;
(2) A description and the estimated value of the articles authorized to be produced, and an estimate of the quantity of the articles authorized to be produced:
(3) A description of any restrictions on third-party transfers of the foreign-manufactured articles; and
(4) If any such agreement does not provide for United States access to and verification of quantities of articles produced overseas and their disposition in the foreign country, a description of alternative measures and controls to ensure compliance with restrictions in the agreement on production quantities and third-party transfers.
§ 124.5 Proposed agreements that are not concluded.
The United States party to any proposed manufacturing license agreement or technical assistance agreement must inform the Directorate of Defense Trade Controls if a decision is made not to conclude the agreement. The information must be provided within 60 days of the date of the decision. These requirements apply only if the approval of the Directorate of Defense Trade Controls was obtained for the agreement to be concluded (with or without any provisos).
§ 124.6 Termination of manufacturing license agreements and technical assistance agreements.
The U.S. party to a manufacturing license or a technical assistance agreement must inform the Directorate of Defense Trade Controls in writing of the impending termination of the agreement not less than 30 days prior to the expiration date of such agreement.
§ 124.7 Information required in all manufacturing license agreements and technical assistance agreements.
(a) The following information must be included in all proposed manufacturing license agreements and technical assistance agreements. The information should be provided in terms which are as precise as possible. If the applicant believes that a clause or that required information is not relevant or necessary, the applicant may request the omission of the clause or information. The transmittal letter accompanying the agreement must state the reasons for any proposed variation in the clauses or required information.
(1) The agreement must describe the defense article to be manufactured and all defense articles to be exported, including any test and support equipment or advanced materials. They should be described by military nomenclature, contract number, National Stock Number, nameplate data, or other specific information. Only defense articles listed in the agreement will be eligible for export under the exemption in § 123.16(b)(1) of this subchapter.
(2) The agreement must specifically describe the assistance and technical data, including the design and manufacturing know-how involved, to be furnished and any manufacturing rights to be granted;
(3) The agreement must specify its duration; and
(4) The agreement must specifically identify the countries or areas in which manufacturing, production, processing, sale or other form of transfer is to be licensed.
(b) [Reserved]
§ 124.8 Clauses required both in manufacturing license agreements and technical assistance agreements.
(a) The following statements must be included both in manufacturing license agreements and in technical assistance agreements:
(1) “This agreement shall not enter into force, and shall not be amended or extended, without the prior written approval of the Department of State of the U.S. Government.”
(2) “This agreement is subject to all United States laws and regulations relating to exports and to all administrative acts of the U.S. Government pursuant to such laws and regulations.”
(3) “The parties to this agreement agree that the obligations contained in this agreement shall not affect the performance of any obligations created by prior contracts or subcontracts which the parties may have individually or collectively with the U.S. Government.”
(4) “No liability will be incurred by or attributed to the U.S. Government in connection with any possible infringement of privately owned patent or proprietary rights, either domestic or foreign, by reason of the U.S. Government’s approval of this agreement.”
(5) The technical data or defense service exported from the United States in furtherance of this agreement and any defense article which may be produced or manufactured from such technical data or defense service may not be transferred to a foreign person except pursuant to § 126.18, as specifically authorized in this agreement, or where prior written approval of the Department of State has been obtained.
(6) “All provisions in this agreement which refer to the United States Government and the Department of State will remain binding on the parties after the termination of the agreement.”
(b) [Reserved]
§ 124.9 Additional clauses required only in manufacturing license agreements.
(a) Clauses for all manufacturing license agreements. The following clauses must be included only in manufacturing license agreements:
(1) “No export, sale, transfer, or other disposition of the licensed article is authorized to any country outside the territory wherein manufacture or sale is herein licensed without the prior written approval of the U.S. Government unless otherwise exempted by the U.S. Government. Sales or other transfers of the licensed article shall be limited to governments of countries wherein manufacture or sale is hereby licensed and to private entities seeking to procure the licensed article pursuant to a contract with any such government unless the prior written approval of the U.S. Government is obtained.”
(2) “It is agreed that sales by licensee or its sub-licensees under contracts made through the U.S. Government will not include either charges for patent rights in which the U.S. Government holds a royalty-free license, or charges for data which the U.S. Government has a right to use and disclose to others, which are in the public domain, or which the U.S. Government has acquired or is entitled to acquire without restrictions upon their use and disclosure to others.”
(3) “If the U.S. Government is obligated or becomes obligated to pay to the licensor royalties, fees, or other charges for the use of technical data or patents which are involved in the manufacture, use, or sale of any licensed article, any royalties, fees or other charges in connection with purchases of such licensed article from licensee or its sub-licensees with funds derived through the U.S. Government may not exceed the total amount the U.S. Government would have been obligated to pay the licensor directly.”
(4) “If the U.S. Government has made financial or other contributions to the design and development of any licensed article, any charges for technical assistance or know-how relating to the item in connection with purchases of such articles from licensee or sub-licensees with funds derived through the U.S. Government must be proportionately reduced to reflect the U.S. Government contributions, and subject to the provisions of paragraphs (a) (2) and (3) of this section, no other royalties, or fees or other charges may be assessed against U.S. Government funded purchases of such articles. However, charges may be made for reasonable reproduction, handling, mailing, or similar administrative costs incident to the furnishing of such data.”
(5) “The parties to this agreement agree that an annual report of sales or other transfers pursuant to this agreement of the licensed articles, by quantity, type, U.S. dollar value, and purchaser or recipient, shall be provided by (applicant or licensee) to the Department of State.” This clause must specify which party is obligated to provide the annual report. Such reports may be submitted either directly by the licensee or indirectly through the licensor, and may cover calendar or fiscal years. Reports shall be deemed proprietary information by the Department of State and will not be disclosed to unauthorized persons. See § 126.10(b) of this subchapter.
(6) (Licensee) agrees to incorporate the following statement as an integral provision of a contract, commercial invoice or other appropriate document whenever the licensed articles are sold or otherwise transferred:
These items are controlled by the U.S. government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.
(b) Special clause for agreements relating to significant military equipment. With respect to an agreement for the production of significant military equipment, the following additional provisions must be included in the agreement:
(1) “A completed nontransfer and use certificate (DSP-83) must be executed by the foreign end-user and submitted to the Department of State of the United States before any transfer may take place.”
(2) “The prior written approval of the U.S. Government must be obtained before entering into a commitment for the transfer of the licensed article by sale or otherwise to any person or government outside of the approved sales territory.”
§ 124.10 Nontransfer and use assurances.
(a) Types of agreements requiring assurances. With respect to any manufacturing license agreement or technical assistance agreement which relates to significant military equipment or classified defense articles, including classified technical data, a Nontransfer and Use Certificate (Form DSP-83) (see § 123.10 of this subchapter) signed by the applicant and the foreign party must be submitted to the Directorate of Defense Trade Controls. With respect to all agreements involving classified articles, including classified technical data, an authorized representative of the foreign government must sign the DSP-83 (or provide the same assurances in the form of a diplomatic note), unless the Directorate of Defense Trade Controls has granted an exception to this requirement. The Directorate of Defense Trade Controls may require that a DSP-83 be provided in conjunction with an agreement that does not relate to significant military equipment or classified defense articles. The Directorate of Defense Trade Controls may also require with respect to any agreement that an appropriate authority of the foreign party’s government also sign the DSP-83 (or provide the same assurances in the form of a diplomatic note).
(b) Timing of submission of assurances. Submission of a Form DSP-83 and/or diplomatic note must occur as follows:
(1) Agreements which have been signed by all parties before being submitted to the Directorate of Defense Trade Controls may only be submitted along with any required DSP-83 and/or diplomatic note.
(2) If an agreement has not been signed by all parties before being submitted, the required DSP-83 and/or diplomatic note must be submitted along with the signed agreement.
In no case may a transfer occur before a required DSP-83 and/or diplomatic note has been submitted to the Directorate of Defense Trade Controls.
§ 124.11 Congressional certification pursuant to Section 36(d) of the Arms Export Control Act.
(a) The Arms Export Control Act requires that a certification be provided to the Congress prior to the granting of any approval of a manufacturing license agreement or technical assistance agreement for the manufacturing abroad of any item of significant military equipment that is entered into with any country regardless of dollar value. Additionally, any manufacturing license agreement or technical assistance agreement providing for the export of major defense equipment shall also require a certification when meeting the requirements of § 123.15 of this subchapter.
(b) Unless an emergency exists which requires the immediate approval of the agreement in the national security interests of the United States, approval may not be granted until at least 15 calendar days have elapsed after receipt by the Congress of the certification required by 22 U.S.C. 2776(d)(1) involving the North Atlantic Treaty Organization, any member country of that Organization, or Australia, Israel, Japan, New Zealand, or the Republic of Korea or at least 30 calendar days have elapsed for any other country. Approvals may not be granted when the Congress has enacted a joint resolution prohibiting the export.
(c) Persons who intend to export defense articles and defense services pursuant to any exemption in this subchapter under the circumstances described in this section and section 123.15 must provide written notification to the Directorate of Defense Trade Controls and include a signed contract and a DSP-83 signed by the applicant, the foreign consignee and the end-user.
§ 124.12 Required information in letters of transmittal.
(a) An application for the approval of a manufacturing license or technical assistance agreement with a foreign person must be accompanied by an explanatory letter. The explanatory letter shall contain:
(1) A statement giving the applicant’s Directorate of Defense Trade Controls registration number.
(2) A statement identifying the licensee and the scope of the agreement.
(3) A statement identifying the U.S. Government contract under which the equipment or technical data was generated, improved, or developed and supplied to the U.S. Government, and whether the equipment or technical data was derived from any bid or other proposal to the U.S. Government.
(4) A statement giving the military security classification of the equipment or technical data.
(5) A statement identifying any patent application which discloses any of the subject matter of the equipment or technical data covered by an invention secrecy order issued by the U.S. Patent and Trademark Office.
(6) A statement of the actual or estimated value of the agreement, including the estimated value of all defense articles to be exported in furtherance of the agreement or amendments thereto. If the value is $500,000 or more, an additional statement must be made regarding the payment of political contributions, fees or commissions, pursuant to part 130 of this subchapter.
(7) A statement indicating whether any foreign military sales credits or loan guarantees are or will be involved in financing the agreement.
(8) The agreement must describe any classified information involved and identify, from Department of Defense form DD254, the address and telephone number of the U.S. Government office that classified the information.
(9) For agreements that may require the export of classified information, the Defense Security Service cognizant security offices that have responsibility for the facilities of the U.S. parties to the agreement shall be identified. The facility security clearance codes of the U.S. parties shall also be provided.
(b) The following statements must be made in the letter of transmittal:
(1) “If the agreement is approved by the Department of State, such approval will not be construed by (the applicant) as passing on the legality of the agreement from the standpoint of antitrust laws or other applicable statutes, nor will (the applicant) construe the Department’s approval as constituting either approval or disapproval of any of the business terms or conditions between the parties to the agreement.”
(2) “The (applicant) will not permit the proposed agreement to enter into force until it has been approved by the Department of State.”
(3) “The (applicant) will furnish the Department of State with one copy of the signed agreement (or amendment) within 30 days from the date that the agreement is concluded and will inform the Department of its termination not less than 30 days prior to expiration and provide information on the continuation of any foreign rights or the flow of technical data to the foreign party. If a decision is made not to conclude the proposed agreement, the applicant will so inform the Department within 60 days.”
(4) “If this agreement grants any rights to sub-license, it will be amended to require that all sub-licensing arrangements incorporate all the provisions of the basic agreement that refer to the U.S. Government and the Department of State (i.e., 22 CFR 124.8 and 124.9).”
§ 124.13 Procurement by U.S. persons in foreign countries (offshore procurement).
Notwithstanding the other provisions in part 124 of this subchapter, the Directorate of Defense Trade Controls may authorize by means of a license (DSP-5) the export of unclassified technical data to foreign persons for offshore procurement of defense articles, provided that:
(a) The contract or purchase order for offshore procurement limits delivery of the defense articles to be produced only to the person in the United States or to an agency of the U.S. Government; and
(b) The technical data of U.S.-origin to be used in the foreign manufacture of defense articles does not exceed that required for bid purposes on a build-to-print basis; and
(c) The contract or purchase order between the person in the United States and the foreign person:
(1) Limits the use of the technical data to the manufacture of the defense articles required by the contract or purchase order only; and
(2) Prohibits the disclosure of the data to any other person except subcontractors within the same country; and
(3) Prohibits the acquisition of any rights in the data by any foreign person; and
(4) Provides that any subcontracts between foreign persons in the approved country for manufacture of equipment for delivery pursuant to the contract or purchase order contain all the limitations of this paragraph (c); and
(5) Requires the foreign person, including subcontractors, to destroy or return to the person in the United States all of the technical data exported pursuant to the contract or purchase order upon fulfillment of their terms; and
(6) Requires delivery of the defense articles manufactured abroad only to the person in the United States or to an agency of the U.S. Government; and
(d) The person in the United States provides the Directorate of Defense Trade Controls with a copy of each contract, purchase order or subcontract for offshore procurement at the time it is accepted. Each such contract, purchase order or subcontract must clearly identify the article to be produced and must identify the license number or exemption under which the technical data was exported; and
(e) Licenses issued pursuant to this section must be renewed prior to their expiration if offshore procurement is to be extended beyond the period of validity of the original approved license. In all instances a license for offshore procurement must state as the purpose “Offshore procurement in accordance with the conditions established in the ITAR, including § 124.13. No other use will be made of the technical data.” If the technical data involved in an offshore procurement arrangement is otherwise exempt from the licensing requirements of this subchapter (e.g., § 126.4), the DSP-5 referred to in the first sentence of this section is not required. However, the exporter must comply with the other requirements of this section and provide a written certification to the Directorate of Defense Trade Controls annually of the offshore procurement activity and cite the exemption under which the technical data was exported. The exemptions under § 125.4 of this subchapter may not be used to establish offshore procurement arrangements.
§ 124.14 Exports to warehouses or distribution points outside the United States.
(a) Agreements. Agreements (e.g., contracts) between U.S. persons and foreign persons for the warehousing and distribution of defense articles must be approved by the Directorate of Defense Trade Controls before they enter into force. Such agreements will be limited to unclassified defense articles and must contain conditions for special distribution, end-use and reporting. Licenses for exports pursuant to such agreements must be obtained prior to exports of the defense articles unless an exemption under § 123.16(b)(1) of this subchapter is applicable.
(b) Required information. Proposed warehousing and distribution agreements (and amendments thereto) shall be submitted to the Directorate of Defense Trade Controls for approval. The following information must be included in all such agreements:
(1) A description of the defense articles involved including test and support equipment covered by the U.S. Munitions List. This shall include when applicable the military nomenclature, the Federal stock number, nameplate data, and any control numbers under which the defense articles were developed or procured by the U.S. Government. Only those defense articles specifically listed in the agreement will be eligible for export under the exemption in § 123.16(b)(1) of this subchapter.
(2) A detailed statement of the terms and conditions under which the defense articles will be exported and distributed;
(3) The duration of the proposed agreement;
(4) Specific identification of the country or countries that comprise the distribution territory. Distribution must be specifically limited to the governments of such countries or to private entities seeking to procure defense articles pursuant to a contract with a government within the distribution territory or to other eligible entities as specified by the Directorate of Defense Trade Controls. Consequently, any deviation from this condition must be fully explained and justified. A nontransfer and use certificate (DSP-83) will be required to the same extent required in licensing agreements under § 124.9(b).
(c) Required statements. The following statements must be included in all warehousing and distribution agreements:
(1) “This agreement shall not enter into force, and may not be amended or extended, without the prior written approval of the Department of State of U.S. Government.”
(2) “This agreement is subject to all United States laws and regulations related to exports and to all administrative acts of the United States Government pursuant to such laws and regulations.
(3) “The parties to this agreement agree that the obligations contained in this agreement shall not affect the performance of any obligations created by prior contracts or subcontracts which the parties may have individually or collectively with the U.S. Government.”
(4) “No liability will be incurred by or attributed to the U.S. Government in connection with any possible infringement of privately owned patent or proprietary rights, either domestic or foreign by reason of the U.S. Government’s approval of this agreement.”
(5) “No export, sale, transfer, or other disposition of the defense articles covered by this agreement is authorized to any country outside the distribution territory without the prior written approval of the Directorate of Defense Trade Controls of the U.S. Department of State.”
(6) “The parties to this agreement agree that an annual report of sales or other transfers pursuant to this agreement of the licensed articles, by quantity, type, U.S. dollar value, and purchaser or recipient shall be provided by (applicant or licensee) to the Department of State.” This clause must specify which party is obligated to provide the annual report. Such reports may be submitted either directly by the licensee or indirectly through the licensor, and may cover calendar or fiscal years. Reports shall be deemed proprietary information by the Department of State and will not be disclosed to unauthorized persons. (See § 126.10(b) of this subchapter.)
(7) “(Licensee) agrees to incorporate the following statement as an integral provision of a contract, invoice or other appropriate document whenever the articles covered by this agreement are sold or otherwise transferred: `These items are controlled by the U.S. government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. government or as otherwise authorized by U.S. law and regulations.’ ”
(8) “All provisions in this agreement which refer to the United States Government and the Department of State will remain binding on the parties after the termination of the agreement.”
(9) Unless the articles covered by the agreement are in fact intended to be distributed to private persons or entities (e.g., cryptographic devices and software for financial and business applications), the following clause must be included in all warehousing and distribution agreements: “Sales or other transfers of the licensed article shall be limited to governments of the countries in the distribution territory and to private entities seeking to procure the licensed article pursuant to a contract with a government within the distribution territory, unless the prior written approval of the U.S. Department of State is obtained.”
(d) Special clauses for agreements relating to significant military equipment. With respect to agreements for the warehousing and distribution of significant military equipment, the following additional provisions must be included in the agreement:
(1) A completed nontransfer and use certificate (DSP-83) must be executed by the foreign end-user and submitted to the U.S. Department of State before any transfer may take place.
(2) The prior written approval of the U.S. Department of State must be obtained before entering into a commitment for the transfer of the licensed article by sale or otherwise to any person or government outside the approved distribution territory.
(e) Transmittal letters. Requests for approval of warehousing and distribution agreements with foreign persons must be made by letter. The letter shall contain:
(1) A statement giving the applicant’s Directorate of Defense Trade Controls registration number.
(2) A statement identifying the foreign party to the agreement.
(3) A statement identifying the defense articles to be distributed under the agreement.
(4) A statement identifying any U.S. Government contract under which the equipment may have been generated, improved, developed or supplied to the U.S. Government, and whether the equipment was derived from any bid or other proposal to the U.S. Government.
(5) A statement that no classified defense articles or classified technical data are involved.
(6) A statement identifying any patent application which discloses any of the subject matter of the equipment or related technical data covered by an invention secrecy order issued by the U.S. Patent and Trademark Office.
(f) Required clauses. The following statements must be made in the letter of transmittal:
(1) “If the agreement is approved by the Department of State, such approval will not be construed by (applicant) as passing on the legality of the agreement from the standpoint of antitrust laws or other applicable statutes, nor will (the applicant) construe the Department’s approval as constituting either approval or disapproval of any of the business terms or conditions between the parties to the agreement.”
(2) “The (applicant) will not permit the proposed agreement to enter into force until it has been approved by the Department of State.”
(3) “(Applicant) will furnish the Department of State with one copy of the signed agreement (or amendment thereto) within 30 days from the date that the agreement is concluded, and will inform the Department of its termination not less than 30 days prior to expiration. If a decision is made not to conclude the proposed agreement, (applicant) will so inform the Department within 60 days.”
§ 124.15 Special Export Controls for Defense Articles and Defense Services Controlled under Category XV: Space Systems and Space Launches.
(a) The export of a satellite or related item controlled by Category XV of part 121 of this subchapter or any defense service controlled by this subchapter associated with the launch in, or by nationals of, a country that is not a member of the North Atlantic Treaty Organization (NATO) or a major non-NATO ally of the United States always requires special export controls, in addition to other export controls required by this subchapter, as follows:
(1) All licenses and other requests for approval require a technology transfer control plan (TTCP) approved by the Department of Defense and an encryption technology control plan approved by the National Security Agency. Drafts reflecting advance discussions with both agencies must accompany submission of the license application or proposed technical assistance agreement, and the letter of transmittal required in § 124.12 must identify the U.S. Government officials familiar with the preparation of the draft TTCPs. The TTCP must require any U.S. person or entity involved in the export to notify the Department of Defense in advance of all meetings and interactions with any foreign person or entity that is a party to the export and require such U.S. person or entity to certify that it has complied with this notification requirement within 30 days after launch.
(2) The U.S. person must make arrangements with the Department of Defense for monitoring. The costs of such monitoring services must be fully reimbursed to the Department of Defense by the U.S. person receiving such services. The letter of transmittal required under § 124.12 must also state that such reimbursement arrangements have been made with the Department of Defense and identify the specific Department of Defense official with whom these arrangements have been made. As required by Public Law 105-261, such monitoring will cover, but not be limited to –
(i) Technical discussions and activities, including the design, development, operation, maintenance, modification, and repair of satellites, satellite components, missiles, other equipment, launch facilities, and launch vehicles;
(ii) Satellite processing and launch activities, including launch preparation, satellite transportation, integration of the satellite with the launch vehicle, testing and checkout prior to launch, satellite launch, and return of equipment to the United States;
(iii) Activities relating to launch failure, delay, or cancellation, including post-launch failure investigations or analyses with regard to either the launcher or the satellite; and
(iv) All other aspects of the launch.
(b) Mandatory licenses for launch failure (crash) investigations or analyses of any satellite controlled pursuant to this subchapter or subject to the EAR: In the event of a failure of a launch from a foreign country (including a post liftoff failure to reach proper orbit) –
(1) The activities of U.S. persons or entities in connection with any subsequent investigation or analysis of the failure continue to be subject to the controls established under section 38 of the Arms Export Control Act, including the requirements under this subchapter for express approval prior to participation in such investigations or analyses, regardless of whether a license was issued under this subchapter for the initial export of the satellite or satellite component;
(2) Officials of the Department of Defense must monitor all activities associated with the investigation or analyses to insure against unauthorized transfer of technical data or services and U.S. persons must follow the procedures set forth in paragraphs (a)(1) and (a)(2) of this section.
(c) Although Public Law 105-261 does not require the application of special export controls for the launch of U.S.-origin satellites and components from or by nationals of countries that are members of NATO or major non-NATO allies, such export controls may nonetheless be applied, in addition to any other export controls required under this subchapter, as appropriate in furtherance of the security and foreign policy of the United States. Further, the export of any article or defense service controlled under this subchapter to any destination may also require that the special export controls identified in paragraphs (a)(1) and (a)(2) of this section be applied in furtherance of the security and foreign policy of the United States.
(d) Mandatory licenses for exports to insurance providers and underwriters: None of the exemptions or sub-licensing provisions available in this subchapter may be used for the export of technical data in order to obtain or satisfy insurance requirements. Such exports are always subject to the prior approval and re-transfer requirements of sections 3 and 38 of the Arms Export Control Act, as applied by relevant provisions of this subchapter.
§ 124.16 [Reserved]
PART 125 – LICENSES FOR THE EXPORT OF TECHNICAL DATA AND CLASSIFIED DEFENSE ARTICLES
§ 125.1 Exports subject to this part.
(a) The controls of this part apply to the export of technical data and the export of classified defense articles. Information which is in the public domain (see § 120.34 of this subchapter and § 125.4(b)(13)) is not subject to the controls of this subchapter.
(b) A license for the export of technical data and the exemptions in § 125.4 may not be used for foreign production purposes or for technical assistance unless the approval of the Directorate of Defense Trade Controls has been obtained. Such approval is generally provided only pursuant to the procedures specified in part 124 of this subchapter.
(c) Technical data authorized for export may not be reexported, transferred or diverted from the country of ultimate end-use or from the authorized foreign end-user (as designated in the license or approval for export) or disclosed to a national of another country without the prior written approval of the Directorate of Defense Trade Controls.
(d) The controls of this part apply to the exports referred to in paragraph (a) of this section regardless of whether the person who intends to export the technical data produces or manufactures defense articles if the technical data is determined by the Directorate of Defense Trade Controls to be subject to the controls of this subchapter.
(e) For the export of technical data related to articles in Category VI(e), Category XVI, and Category XX(b)(1) of § 121.1 of this subchapter, see § 120.5(c) of this subchapter.
(f) Unless limited by a condition set out in an agreement, the export, reexport, retransfer, or temporary import authorized by a license is for the item(s), end-use(s), and parties described in the agreement, license, and any letters of explanation. DDTC approves agreements and grants licenses in reliance on representations the applicant made in or submitted in connection with the agreement, letters of explanation, and other documents submitted.
§ 125.2 Exports of unclassified technical data.
(a) License. A license (DSP-5) is required for the export of unclassified technical data unless the export is exempt from the licensing requirements of this subchapter. In the case of a plant visit, details of the proposed discussions must be transmitted to the Directorate of Defense Trade Controls for an appraisal of the technical data.
(b) Patents. A license issued by the Directorate of Defense Trade Controls is required for the export of technical data whenever the data exceeds that which is used to support a domestic filing of a patent application or to support a foreign filing of a patent application whenever no domestic application has been filed. Requests for the filing of patent applications in a foreign country, and requests for the filing of amendments, modifications or supplements to such patents, should follow the regulations of the U.S. Patent and Trademark Office in accordance with 37 CFR part 5. The export of technical data to support the filing and processing of patent applications in foreign countries is subject to regulations issued by the U.S. Patent and Trademark Office pursuant to 35 U.S.C. 184.
(c) Disclosures. Unless otherwise expressly exempted in this subchapter, a license is required for the oral, visual or documentary disclosure of technical data by U.S. persons to foreign persons. A license is required regardless of the manner in which the technical data is transmitted (e.g., in person, by telephone, correspondence, electronic means, etc.). A license is required for such disclosures by U.S. persons in connection with visits to foreign diplomatic missions and consular offices.
§ 125.3 Exports of classified technical data and classified defense articles.
(a) A request for authority to export defense articles, including technical data, classified by a foreign government or pursuant to Executive Order 12356, successor orders, or other legal authority must be submitted to the Directorate of Defense Trade Controls for approval. The application must contain full details of the proposed transaction. It should also list the facility security clearance code of all U.S. parties on the license and include the Defense Security Service cognizant security office of the party responsible for packaging the commodity for shipment. A nontransfer and use certificate (Form DSP-83) executed by the applicant, foreign consignee, end-user and an authorized representative of the foreign government involved will be required.
(b) Classified technical data which is approved by the Directorate of Defense Trade Controls either for export or reexport after a temporary import will be transferred or disclosed only in accordance with the requirements in the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed). Any other requirements imposed by cognizant U.S. departments and agencies must also be satisfied.
(c) The approval of the Directorate of Defense Trade Controls must be obtained for the export of technical data by a U.S. person to a foreign person in the U.S. or in a foreign country unless the proposed export is exempt under the provisions of this subchapter.
(d) All communications relating to a patent application covered by an invention secrecy order are to be addressed to the U.S. Patent and Trademark Office (see 37 CFR 5.11).
§ 125.4 Exemptions of general applicability.
(a) The following exemptions apply to exports of technical data for which approval is not needed from the Directorate of Defense Trade Controls. The exemptions, except for paragraph (b)(13) of this section, do not apply to exports to proscribed destinations under § 126.1 of this subchapter or for persons considered generally ineligible under § 120.16 of this subchapter. The exemptions are also not applicable for purposes of establishing offshore procurement arrangements or producing defense articles offshore (see § 124.13), except as authorized under § 125.4(c). Transmission of classified information must comply with the requirements of the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade controls, in which case the latter guidance must be followed) and the exporter must certify to the transmittal authority that the technical data does not exceed the technical limitation of the authorized export.
(b) The following exports are exempt from the licensing requirements of this subchapter.
(1) Technical data, including classified information, to be disclosed pursuant to an official written request or directive from the U.S. Department of Defense;
(2) Technical data, including classified information, in furtherance of a manufacturing license or technical assistance agreement approved by the Department of State under part 124 of this subchapter and which meet the requirements of § 124.3 of this subchapter;
(3) Technical data, including classified information, in furtherance of a contract between the exporter and an agency of the U.S. Government, if the contract provides for the export of the data and such data does not disclose the details of design, development, production, or manufacture of any defense article;
(4) Copies of technical data, including classified information, previously authorized for export to the same recipient. Revised copies of such technical data are also exempt if they pertain to the identical defense article, and if the revisions are solely editorial and do not add to the content of technology previously exported or authorized for export to the same recipient;
(5) Technical data, including classified information, in the form of basic operations, maintenance, and training information relating to a defense article lawfully exported or authorized for export to the same recipient. Intermediate or depot-level repair and maintenance information may be exported only under a license or agreement approved specifically for that purpose;
(6) Technical data, including classified information, related to firearms not in excess of caliber .50 and ammunition for such weapons, except detailed design, development, production or manufacturing information;
(7) Technical data, including classified information, being returned to the original source of import;
(8) Technical data directly related to classified information which has been previously exported or authorized for export in accordance with this part to the same recipient, and which does not disclose the details of the design, development, production, or manufacture of any defense article;
(9) Technical data, including classified information, regardless of media or format, exported, reexported, or retransferred by or to a U.S. person, or a foreign person employee of a U.S. person travelling or on temporary assignment abroad, subject to the following restrictions:
(i) Foreign persons may only export, reexport, retransfer, or receive such technical data as they are authorized to receive through a separate license or other approval.
(ii) The technical data exported, reexported, or retransferred under this authorization may only be possessed or used by a U.S. person or authorized foreign person. Sufficient security precautions must be taken to prevent the unauthorized release of the technical data. Such security precautions may include encryption of the technical data; the use of secure network connections, such as virtual private networks; the use of passwords or other access restrictions on the electronic device or media on which the technical data is stored; and the use of firewalls and other network security measures to prevent unauthorized access.
(iii) The individual is an employee of the U.S. government or is directly employed by a U.S. person and not by a foreign subsidiary.
(iv) Technical data authorized under this exception may not be used for foreign production purposes or for defense services unless authorized through a license or other separate approval.
(v) Classified information is sent or taken outside the United States in accordance with the requirements of the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case such guidance must be followed).
(10) Disclosures of unclassified technical data in the U.S. by U.S. institutions of higher learning to foreign persons who are their bona fide and full time regular employees. This exemption is available only if:
(i) The employee’s permanent abode throughout the period of employment is in the United States;
(ii) The employee is not a national of a country to which exports are prohibited pursuant to § 126.1 of this subchapter; and
(iii) The institution informs the individual in writing that the technical data may not be transferred to other foreign persons without the prior written approval of the Directorate of Defense Trade Controls;
(11) Technical data, including classified information, for which the exporter, pursuant to an arrangement with the Department of Defense, Department of Energy or NASA which requires such exports, has been granted an exemption in writing from the licensing provisions of this part by the Directorate of Defense Trade Controls. Such an exemption will normally be granted only if the arrangement directly implements an international agreement to which the United States is a party and if multiple exports are contemplated. The Directorate of Defense Trade Controls, in consultation with the relevant U.S. Government agencies, will determine whether the interests of the United States Government are best served by expediting exports under an arrangement through an exemption (see also paragraph (b)(3) of this section for a related exemption);
(12) Technical data which is specifically exempt under part 126 of this subchapter; or
(13) Technical data approved for public release (i.e., unlimited distribution) by the cognizant U.S. Government department or agency or Office of Freedom of Information and Security Review. This exemption is applicable to information approved by the cognizant U.S. Government department or agency for public release in any form. It does not require that the information be published in order to qualify for the exemption.
(c) Defense services and related unclassified technical data are exempt from the licensing requirements of this subchapter, to nationals of NATO countries, Australia, Japan, and Sweden, for the purposes of responding to a written request from the Department of Defense for a quote or bid proposal. Such exports must be pursuant to an official written request or directive from an authorized official of the U.S. Department of Defense. The defense services and technical data are limited to paragraphs (f), (g), and (h) (build-to-print, build/design-to-specification, and basic research, respectively) of § 120.43 of this subchapter and must not include paragraph (c), (d), (e), or (i) (design methodology, engineering analysis, manufacturing know-how, and applied research, respectively) of § 120.43.
§ 125.5 Exemptions for plant visits.
(a) A license is not required for the oral and visual disclosure of unclassified technical data during the course of a classified plant visit by a foreign person, provided: The classified visit has itself been authorized pursuant to a license issued by the Directorate of Defense Trade Controls; or the classified visit was approved in connection with an actual or potential government-to-government program or project by a U.S. Government agency having classification jurisdiction over the classified defense article or classified technical data involved under Executive Order 12356 or other applicable Executive Order; and the unclassified information to be released is directly related to the classified defense article or technical data for which approval was obtained and does not disclose the details of the design, development, production or manufacture of any other defense articles. In the case of visits involving classified information, the requirements of the Department of Defense National Industrial Security Program Operating Manual must be met (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed).
(b) The approval of the Directorate of Defense Trade Controls is not required for the disclosure of oral and visual classified information to a foreign person during the course of a plant visit approved by the appropriate U.S. Government agency if: The requirements of the Department of Defense National Industrial Security Program Operating Manual have been met (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed); the classified information is directly related to that which was approved by the U.S. Government agency; it does not exceed that for which approval was obtained; and it does not disclose the details of the design, development, production or manufacture of any defense articles.
(c) A license is not required for the disclosure to a foreign person of unclassified technical data during the course of a plant visit (either classified or unclassified) approved by the Directorate of Defense Trade Controls or a cognizant U.S. Government agency provided the technical data does not contain information in excess of that approved for disclosure. This exemption does not apply to technical data which could be used for design, development, production or manufacture of a defense article.
§ 125.6 [Reserved]
§ 125.7 Procedures for the export of classified technical data and other classified defense articles.
(a) All applications for the export or temporary import of classified technical data or other classified defense articles must be submitted to the Directorate of Defense Trade Controls on Form DSP-85.
(b) An application for the export of classified technical data or other classified defense articles must be accompanied by a completed form DSP-83 (see § 123.10 of this subchapter). All classified materials accompanying an application must be transmitted to the Directorate of Defense Trade Controls in accordance with the procedures contained in the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are inconsistent with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed).
§ 125.8 [Reserved]
Licenses and other authorizations for the export of classified technical data or classified defense articles will be forwarded by the Directorate of Defense Trade Controls to the Defense Security Service of the Department of Defense in accordance with the provisions of the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed). The Directorate of Defense Trade Controls will forward a copy of the license to the applicant for the applicant’s information. The Defense Security Service will return the endorsed license to the Directorate of Defense Trade Controls upon completion of the authorized export or expiration of the license, whichever occurs first.
PART 126 – GENERAL POLICIES AND PROVISIONS
§ 126.1 Prohibited exports, imports, and sales to or from certain countries.
(a) General. It is the policy of the United States to deny licenses and other approvals for exports and imports of defense articles and defense services, destined for or originating in certain countries. The exemptions provided in this subchapter, except §§ 123.17, 126.4(a)(1) or (3) and (b)(1), and 126.4(a)(2) or (b)(2) when the export is destined for Russia and in support of government space cooperation, and § 126.6, or when the recipient is a U.S. government department or agency, do not apply with respect to defense articles or defense services originating in or for export to any proscribed countries, areas, or persons. (See § 129.7 of this subchapter, which imposes restrictions on brokering activities similar to those in this section).
(b) Shipments. A defense article licensed or otherwise authorized for export, temporary import, reexport, or retransfer under this subchapter may not be shipped on a vessel, aircraft, spacecraft, or other means of conveyance that is owned by, operated by, leased to, or leased from any of the proscribed countries, areas, or other persons referred to in this section.
(c) Identification in § 126.1 of the ITAR may derive from:
(1) Exports and sales prohibited by United Nations Security Council sanctions measures. Whenever the United Nations Security Council mandates sanctions measures, all transactions that are prohibited by the aforementioned measures and involve U.S. persons (see § 120.62 of this subchapter) inside or outside of the United States, or any person in the United States, and defense articles or defense services described on the United States Munitions List (22 CFR part 121), irrespective of origin, are prohibited under the ITAR for the duration of the sanction, unless the Department of State publishes a notice in the
(2) Terrorism. Exports or temporary imports of defense articles or defense services to countries that the Secretary of State has determined to be State Sponsors of Terrorism are prohibited under the ITAR. These countries have repeatedly provided support for acts of international terrorism, which is contrary to the foreign policy of the United States and thus subject to the policy specified in paragraph (a) of this section and the requirements of section 40 of the Arms Export Control Act (22 U.S.C. 2780) and the Omnibus Diplomatic Security and Anti-Terrorism Act of 1986 (22 U.S.C. 4801). Exports to countries that the Secretary of State has determined and certified to Congress, pursuant to section 40A of the Arms Export Control Act (22 U.S.C. 2781) and Executive Order 13637, are not cooperating fully with United States antiterrorism efforts are subject to the policy specified in paragraph (a) of this section. The Secretary of State makes such determinations and certifications annually.
(3) Arms embargoes and sanctions. The policy specified in paragraph (a) of this section applies to countries subject to a United States arms embargo or sanctions regime, such as those described in the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.), the International Religious Freedom Act of 1998 (22 U.S.C. 6401 et seq.), or the Child Soldiers Prevention Act of 2008 (22 U.S.C. 2370c-2370c-2), or whenever an export of defense articles or defense services would not otherwise be in furtherance of world peace and the security and foreign policy of the United States.
(d) Countries subject to certain prohibitions:
(1) For defense articles and defense services, the following countries have a policy of denial:
| Country |
|---|
| Belarus. |
| Burma. |
| China. |
| Cuba. |
| Iran. |
| North Korea. |
| Syria. |
| Venezuela. |
(2) For defense articles and defense services, a policy of denial applies as specified in the associated paragraphs in the following table:
Table 2 to Paragraph
| Country | Country specific paragraph location |
|---|---|
| Afghanistan | See also paragraph (g) of this section. |
| Cambodia | See also paragraph (o) of this section. |
| Central African Republic | See also paragraph (u) of this section. |
| Cyprus | See also paragraph (r) of this section. |
| Democratic Republic of Congo | See also paragraph (i) of this section. |
| Ethiopia | See also paragraph (n) of this section. |
| Eritrea | See also paragraph (h) of this section. |
| Haiti | See also paragraph (j) of this section. |
| Iraq | See also paragraph (f) of this section. |
| Lebanon | See also paragraph (t) of this section. |
| Libya | See also paragraph (k) of this section. |
| Russia | See also paragraph (l) of this section. |
| Somalia | See also paragraph (m) of this section. |
| South Sudan | See also paragraph (w) of this section. |
| Sudan | See also paragraph (v) of this section. |
| Zimbabwe | See also paragraph (s) of this section. |
(e)(1) Proposed and final sales. No sale, export, transfer, reexport, or retransfer of, and no proposal or presentation to sell, export, transfer, reexport, or retransfer, any defense articles or defense services subject to this subchapter may be made to any country referred to in this section (including the embassies or consulates of such a country), or to any person acting on its behalf, whether in the United States or abroad, without first obtaining a license or written approval of the Directorate of Defense Trade Controls. However, in accordance with paragraph (a) of this section, it is the policy of the Department of State to deny licenses and approvals in such cases.
(2) Duty to notify. Any person who knows or has reason to know of a proposed, final, or actual sale, export, transfer, reexport, or retransfer of articles, services, or data as described in paragraph (e)(1) of this section must immediately inform the Directorate of Defense Trade Controls. Such notifications should be submitted to the Office of Defense Trade Controls Compliance, Directorate of Defense Trade Controls.
“Proposal” and “presentation” mean the communication of information in sufficient detail that it would permit an intended purchaser to decide to acquire the article in question or to enter into an agreement as described in part 124 of this subchapter. For example, communicating information on the equipment’s performance characteristics, price, and probable availability for delivery would be a proposal or presentation requiring a license or other approval.
(f) Iraq. It is the policy of the United States to deny licenses or other approvals for exports and imports of defense articles and defense services, destined for or originating in Iraq, except that a license or other approval may be issued, on a case-by-case basis for:
(1) Non-lethal military equipment; and
(2) Lethal military equipment required by the Government of Iraq or coalition forces.
(g) Afghanistan. It is the policy of the United States to deny licenses or other approvals for exports and imports of defense articles and defense services, destined for or originating in Afghanistan, except that a license or other approval may be issued, on a case-by-case basis, for the Government of Afghanistan or coalition forces. In addition, the names of individuals, groups, undertakings, and entities subject to arms embargoes, due to their affiliation with the Taliban, Al-Qaida, or those associated with them, are published in lists maintained by the United Nations Security Council’s Sanctions Committees (established pursuant to United Nations Security Council resolutions (UNSCR) 1267, 1988, and 1989).
(h) Eritrea. It is the policy of the United States to deny licenses or other approvals for exports of defense articles or defense services destined to or for the armed forces, police, intelligence, or other internal security forces of Eritrea.
(i) Democratic Republic of the Congo. It is the policy of the United States to deny licenses or other approvals for exports or imports of defense articles and defense services destined for or originating in the Democratic Republic of the Congo, except that a license or other approval may be issued, on a case-by-case basis, for:
(1) Defense articles and defense services for the Government of the Democratic Republic of the Congo as notified in advance to the Committee of the Security Council concerning the Democratic Republic of the Congo;
(2) Defense articles and defense services intended solely for the support of or use by the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) or the African Union-Regional Task Force;
(3) Protective clothing, including flak jackets and military helmets, temporarily exported to the Democratic Republic of the Congo by United Nations personnel, representatives of the media, and humanitarian and development workers and associated personnel, for their personal use only;
(4) Non-lethal military equipment intended solely for humanitarian or protective use, and related technical assistance and training, as notified in advance to the Committee of the Security Council concerning the Democratic Republic of the Congo.
(5) Defense articles and defense services as approved by the relevant committee of the Security Council.
(j) Haiti. (1) It is the policy of the United States to deny licenses or other approvals for exports or imports of defense articles and defense services destined for or originating in Haiti, except that a license or other approval may be issued, on a case-by-case basis, for:
(i) Defense articles and defense services intended solely for the support of or use by security units that operate under the command of the Government of Haiti, to include the Coast Guard;
(ii) Defense articles and defense services intended solely for the support of or use by the United Nations or a United Nations-authorized mission; and
(iii) Personal protective gear for use by personnel from the United Nations and other international organizations, representatives of the media, and development workers and associated personnel.
(2) All shipments of arms and related materials consistent with the above exceptions shall only be made to Haitian security units as designated by the Government of Haiti, in coordination with the U.S. Government.
(k) Libya. It is the policy of the United States to deny licenses or other approvals for exports or imports of defense articles and defense services destined for or originating in Libya, except that a license or other approval may be issued, on a case-by-case basis, for:
(1) Arms and related materiel intended solely for security or disarmament assistance to the Libyan government, notified to the Committee of the Security Council concerning Libya in advance and in the absence of a negative decision by the Committee within five working days of such a notification;
(2) Non-lethal military equipment when intended solely for security or disarmament assistance to the Libyan government;
(3) The provision of any technical assistance or training when intended solely for security or disarmament assistance to the Libyan government;
(4) Small arms, light weapons, and related materiel temporarily exported to Libya for the sole use of United Nations personnel, representatives of the media, and humanitarian and development workers and associated personnel, notified to the Committee of the Security Council concerning Libya in advance and in the absence of a negative decision by the Committee within five working days of such a notification;
(5) Non-lethal military equipment intended solely for humanitarian or protective use, and related technical assistance or training; or
(6) Other sales or supply of arms and related materiel, or provision of assistance or personnel, as approved in advance by the Committee of the Security Council concerning Libya.
(l) Russia. It is the policy of the United States to deny licenses or other approvals for exports of defense articles and defense services destined for Russia, except that a license or other approval may be issued, on a case-by-case basis:
(1) For government space cooperation; and
(2) Prior to September 1, 2021, for commercial space launches.
(m) Somalia. It is the policy of the United States to deny licenses or other approvals for exports or imports of defense articles and defense services destined for or originating in Somalia, except that a license or other approval may be issued, on a case-by-case basis, for:
(1) Defense articles and defense services intended solely for the support of or use by the following:
(i) The African Union Mission in Somalia (AMISOM);
(ii) United Nations personnel, including the United Nations Assistance Mission in Somalia (UNSOM);
(iii) AMISOM’s strategic partners, operating solely under the African Union (AU) Strategic Concept of January 5, 2012 (or subsequent AU strategic concepts), and in cooperation and coordination with AMISOM; or
(iv) The European Union Training Mission (EUTM) in Somalia.
(2) Defense articles and defense services intended solely for the development of the Security Forces of the Federal Government of Somalia, to provide security for the Somali people, notified to the relevant committee of the Security Council at least five days in advance, except in relation to deliveries of the following articles, the supply of which needs to be approved in advance by the relevant committee of the Security Council:
(i) Surface to air missiles, including Man-Portable Air-Defense Systems (MANPADS);
(ii) Guns, howitzers, and cannons with a caliber greater than 12.7 mm, and ammunition and components specially designed for these (this does not include shoulder fired anti-tank rocket launchers such as RPGs or LAWs, rifle grenades, or grenade launchers);
(iii) Mortars with a caliber greater than 82 mm;
(iv) Anti-tank guided weapons, including Anti-tank Guided Missiles (ATGMs) and ammunition and components specially designed for these items;
(v) Charges and devices intended for military use containing energetic material; mines, and related materiel; and
(vi) Weapon sights with a night vision capability.
(3) Defense articles and defense services supplied by United Nations member states or international, regional, or subregional organizations intended solely for the purposes of helping develop Somali security sector institutions, other than the Security Forces of the Federal Government of Somalia, and in the absence of a negative decision by the relevant committee of the Security Council within five working days of receiving a notification of any such assistance from the supplying State, international, regional or subregional organization;
(4) Defense articles for the sole use by United Nations member states or international, regional, or subregional organizations undertaking measures to suppress acts of piracy and armed robbery at sea off the coast of Somalia, upon the request of the Federal Government of Somalia for which it has notified the Secretary-General, and provided that any measures undertaken shall be consistent with applicable international humanitarian and human rights laws;
(5) Personal protective clothing, including flak jackets and military helmets, temporarily exported to Somalia by United Nations personnel, representatives of the media, humanitarian or development workers, or associated personnel for their personal use only; or
(6) Supplies of non-lethal defense articles intended solely for humanitarian or protective use, notified to the relevant committee of the Security Council five days in advance for its information only, by the supplying State, international, regional, or subregional organization.
(n) Ethiopia. It is the policy of the United States to deny licenses or other approvals for exports of defense articles or defense services destined to or for the armed forces, police, intelligence, or other internal security forces of Ethiopia.
(o) Cambodia. It is the policy of the United States to deny licenses or other approvals for exports and imports of defense articles and defense services destined for or originating in Cambodia, except that a license or other approval may be issued, on a case-by-case basis, for defense articles and defense services in furtherance of conventional weapons destruction or humanitarian mine action activities.
(p)-(q) [Reserved]
(r) Cyprus. It is the policy of the United States to deny licenses or other approvals for exports or imports of defense articles and defense services destined for or originating in Cyprus, except that a license or other approval may be issued, on a case-by-case basis, for the United Nations Forces in Cyprus (UNFICYP) or for civilian end-users. This policy of denial, and the status of Cyprus as a proscribed destination, is suspended from October 1, 2022, through September 30, 2023.
(s) Zimbabwe. It is the policy of the United States to deny licenses or other approvals for exports or imports of defense articles and defense services destined for or originating in Zimbabwe, except that a license or other approval may be issued, on a case-by-case basis, for the temporary export of firearms and ammunition for personal use by individuals (not for resale or retransfer, including to the Government of Zimbabwe).
(t) Lebanon. It is the policy of the United States to deny licenses or other approvals for exports or imports of defense articles and defense services destined for or originating in Lebanon, except that a license or other approval may be issued, on a case-by-case basis, for the United Nations Interim Force in Lebanon (UNIFIL) or as authorized by the Government of Lebanon.
(u) Central African Republic. It is the policy of the United States to deny licenses or other approvals for exports and imports of defense articles and defense services destined for or originating in the Central African Republic, except that a license or other approval may be issued, on a case-by-case basis, for:
(1) Defense articles intended solely for the support of or use by the UN Multidimensional Integrated Stabilization Mission in the Central African Republic (MINUSCA) and the European Union training missions deployed to the Central African Republic; French forces within the provisions of their bilateral agreement with the Central African Republic and the limits of their capacities and areas of deployment, and other Member States’ forces providing training and assistance as notified in advance to the Committee of the Security Council concerning the Central African Republic;
(2) Non-lethal equipment and the provision of assistance, including operational and non-operational training to the Central African Republic security forces, including state civilian law enforcement institutions, intended solely for the support of or use in the Central African Republic process of security sector reform, in coordination with MINUSCA, and as notified in advance to the Committee of the Security Council concerning the Central African Republic;
(3) Supplies brought into the Central African Republic by Chadian or Sudanese forces solely for their use in international patrols of the tripartite force to enhance security in the common border areas, in cooperation with MINUSCA, as approved in advance by the Committee of the Security Council concerning the Central African Republic;
(4) Non-lethal military equipment and related technical assistance or training intended solely for humanitarian and protective use, as notified in advance to the Committee of the Security Council concerning the Central African Republic;
(5) Personal protective equipment temporarily exported to the Central African Republic by United Nations personnel, representatives of the media, and humanitarian and developmental workers and associated personnel, for their personal use only;
(6) Small arms and related equipment intended solely for use in international-led patrols providing security in the Sangha River Tri-national Protected Area and by armed wildlife rangers of the Chinko Project and the Bamingui-Bangoran National Park to defend against poaching, smuggling of ivory and arms, and other activities contrary to the laws of the Central African Republic or its international legal obligations, as notified in advance to the Committee of the Security Council concerning the Central African Republic;
(7) Defense articles with a caliber of 14.5mm or less, and ammunition and components specially designed for such weapons, and defense articles that are unarmed ground military vehicles and ground military vehicles mounted with weapons with a caliber of 14.5mm or less, to the Central African Republic security forces, including state civilian law enforcement institutions, and intended solely for the support of or use in the Central African Republic security sector reform process, as notified in advance to the Committee of the Security Council concerning the Central African Republic;
(8) Defense articles and any related lethal equipment that are not listed in (u)(7) to the Central African Republic security forces, including state civilian law enforcement institutions, and intended solely for the support of or use in the Central African Republic process of security sector reform, as approved in advance by the Committee of the Security Council concerning the Central African Republic; or
(9) Other sales or supply of defense articles and related materiel, or provision of assistance or personnel, as approved in advance by the Committee of the Security Council concerning the Central African Republic.
(v) Sudan. It is the policy of the United States to deny licenses or other approvals for exports or imports of defense articles and defense services destined for or originating in the Republic of the Sudan, except a license or other approval may be issued, on a case-by-case basis, for:
(1) Supplies and related technical training and assistance to monitoring, verification, or peace support operations, including those authorized by the United Nations or operating with the consent of the relevant parties;
(2) Supplies of non-lethal military equipment intended solely for humanitarian, human rights monitoring, or protective uses and related technical training and assistance;
(3) Personal protective gear for the personal use of United Nations personnel, human rights monitors, representatives of the media, and humanitarian and development workers and associated personnel; or
(4) Assistance and supplies provided in support of implementation of the Comprehensive Peace Agreement.
(w) South Sudan. It is the policy of the United States to deny licenses or other approvals for exports of defense articles and defense services destined for South Sudan, except that a license or other approval may be issued, on a case-by-case basis, for:
(1) Defense articles and defense services for monitoring, verification, or peacekeeping support operations, including those authorized by the United Nations or operating with the consent of the relevant parties;
(2) Defense articles and defense services intended solely for the support of, or use by, African Union Regional Task Force (AU-RTF) or United Nations entities operating in South Sudan, including but not limited to the United Nations Mission in the Republic of South Sudan (UNMISS), the United Nations Mine Action Service (UNMAS), the United Nations Police (UNPOL), or the United Nations Interim Security Force for Abyei (UNISFA);
(3) Defense articles and defense services intended solely for the support of or use by non-governmental organizations in furtherance of conventional weapons destruction or humanitarian demining activities;
(4) Non-lethal defense articles intended solely for humanitarian or protective use and related technical training and assistance;
(5) Personal protective equipment including flak jackets and helmets, temporarily exported to South Sudan by United Nations personnel, human rights monitors, representatives of the media, and humanitarian and development workers and associated personnel, for their personal use only; or
(6) Any defense articles and defense services provided in support of implementation of the Comprehensive Peace Agreement, the Agreement on the Resolution of the Conflict in the Republic of South Sudan, or any successor agreement.
§ 126.2 Temporary suspension or modification of this subchapter.
The Deputy Assistant Secretary for Defense Trade Controls may order the temporary suspension or modification of any or all of the regulations of this subchapter in the interest of the security and foreign policy of the United States.
§ 126.3 Exceptions.
In a case of exceptional or undue hardship, or when it is otherwise in the interest of the United States Government, the Deputy Assistant Secretary of State for Defense Trade Controls may make an exception to the provisions of this subchapter.
§ 126.4 Transfers by or for the United States Government.
(a) By a department or agency. A license is not required for the export, reexport, retransfer, or temporary import of a defense article or the performance of a defense service, when made by a department or agency of the U.S. Government:
(1) For official use by a department or agency of the U.S. Government, including:
(i) By employees of the U.S. Government acting within their official capacity; or
(ii) By persons or entities in a contractual relationship with the U.S. Government using the defense article or performing the defense service to conduct the contracted-for activities within the scope of the contractual relationship and:
(A) Within a U.S. Government-controlled facility;
(B) When an employee of the U.S. Government is empowered and responsible to ensure that the defense article is not diverted and is only used within the scope of the contractual relationship; or
(C) Use of the exemption in paragraph (a)(1)(ii) is authorized by the Deputy Assistant Secretary of State for Defense Trade Controls at the request of a department or agency of the U.S. Government.
(D) The provision in this paragraph (a)(1)(ii) may not be used to release technical data to a person or entity of a country identified in § 126.1.
(2) For carrying out a cooperative project, program, or other activity in furtherance of an agreement or arrangement that provides for the export, reexport, retransfer, or temporary import of the defense article, or the performance of activities that constitute the defense service, and is one of the following:
(i) A binding international agreement to which the United States or any agency thereof is a party; or
(ii) An arrangement with international partners authorized by Title 10 or 22 of the United States Code or pertinent National Defense Authorization Act provisions.
(3) For carrying out any foreign assistance or sales program authorized by law and subject to control by the President by other means.
(4) For any other security cooperation programs and activities of the Department of Defense authorized by law and subject to control by the President by other means.
(i) For purposes of this paragraph (a)(4), “security cooperation programs and activities of the Department of Defense” means any program, activity, or interaction of the Department of Defense with the security establishment of a foreign country to:
(A) Build and develop allied and friendly security capabilities for self-defense and multinational operations;
(B) Provide the armed forces with access to the foreign country during peacetime or a contingency operation; or
(C) Build relationships that promote specific United States security interests.
(ii) The U.S. Government must obtain appropriate end-use and retransfer assurances from the foreign party and to ensure that the recipient is aware of and will comply with paragraph (f) of this section.
(5) Authorization under this section is for compliance with the ITAR only and does not constitute any other U.S. Government approval that may be required prior to the transfer of a defense article, and does not satisfy other obligations of U.S. law or regulation, or applicable Government process, procedure, or practice, including the requirement that any export of an item listed on the MTCR Annex receive the case-by-case review called for in the MTCR Guidelines.
(6) The exemption in this paragraph (a) does not apply when a U.S. Government department or agency acts as a transmittal agent on behalf of a private individual or firm, either as a convenience or in satisfaction of security requirements.
(7) The authorization requirement expressed in paragraph (f) of this section does not apply to defense articles and services exported from the United States pursuant to paragraphs (a)(1) and (3) of this section, provided the defense articles and services are subject to the terms thereof.
(b) By a person on behalf of a department or agency. A license is not required for the export, reexport, retransfer, or temporary import of a defense article or the performance of a defense service, when made by another person for a department or agency of the U.S. Government:
(1) To a department or agency of the U.S. Government at its request; or
(2) To an entity other than the U.S. Government at the written direction of a department or agency of the U.S. Government or pursuant to an international agreement or arrangement, for an activity authorized for that department or agency in paragraphs (a)(1) through (4) of this section.
(c) Return to the United States. No license is required under this subchapter for the return to the United States of a defense article exported pursuant to this section and not subsequently reexported or retransferred other than pursuant to this section, to:
(1) A department or agency of the U.S. Government; or
(2) The person who exported the item.
(d) Prohibited activities and arms embargoes. This section does not authorize any department or agency of the U.S. Government to make or authorize any export that is otherwise prohibited by any other administrative provisions or by any statute or that is inconsistent with U.S. arms embargoes or United Nations Security Council Resolutions (see § 126.1).
(e) Export clearance. For exports shipped other than by a U.S. diplomatic pouch or a U.S. Government aircraft, vehicle, or vessel, an Electronic Export Information (EEI) filing must be submitted to U.S. Customs and Border Protection using its electronic system(s) at the time of export, unless electronic submission of such information is unavailable, in which case U.S. Customs and Border Protection or the Department of Defense transmittal authority will issue instructions.
(f) Change in end-use or end-user. Any change in end-use or end-user of a defense article, to any party or use not authorized by this section, requires approval of the Directorate of Defense Trade Controls through a license or other approval.
§ 126.5 Canadian exemptions.
(a) Temporary import of defense articles. Port Directors of U.S. Customs and Border Protection and postmasters shall permit the temporary import and return to Canada without a license of any unclassified defense articles that originate in Canada for temporary use in the United States and return to Canada. All other temporary imports shall be in accordance with §§ 123.3 and 123.4 of this subchapter.
(b) Permanent and temporary export of defense articles. Except as provided in Supplement No. 1 to part 126 of this subchapter and for exports that transit third countries, Port Directors of U.S. Customs and Border Protection and postmasters shall permit, when for end-use in Canada by Canadian Federal or Provincial governmental authorities acting in an official capacity or by a Canadian-registered person, or for return to the United States, the permanent and temporary export to Canada without a license of unclassified defense articles and defense services identified on the U.S. Munitions List (22 CFR 121.1). The exceptions are subject to meeting the requirements of this subchapter, to include §§ 120.15(d) and 120.16, parts 122 and 123 (except insofar as exemption from licensing requirements is herein authorized) and § 126.1, and the requirement to obtain non-transfer and use assurances for all significant military equipment. For purposes of this section, “Canadian-registered person” is any Canadian national (including Canadian business entities organized under the laws of Canada), dual citizen of Canada and a third country other than a country listed in § 126.1, and permanent resident registered in Canada in accordance with the Canadian Defense Production Act, and such other Canadian Crown Corporations identified by the Department of State in a list of such persons publicly available through the Internet Web site of the Directorate of Defense Trade Controls and by other means.
(c) [Reserved]
(d) Reexports/retransfer. Reexport/retransfer in Canada to another end-user or end-use or from Canada to another destination, except the United States, must in all instances have the prior approval of the Directorate of Defense Trade Controls. Unless otherwise exempt in this subchapter, the original exporter is responsible, upon request from a Canadian-registered person, for obtaining or providing reexport/retransfer approval. In any instance when the U.S. exporter is no longer available to the Canadian end-user the request for reexport/retransfer may be made directly to the Directorate of Defense Trade Controls. All requests must include the information in § 123.9(c) of this subchapter. Reexport/retransfer approval is acquired by:
(1) If the reexport/retransfer being requested could be made pursuant to this section (i.e., a retransfer within Canada to another eligible Canadian recipient under this section) if exported directly from the U.S., upon receipt by the U.S. company of a request by a Canadian end user, the original U.S. exporter is authorized to grant on behalf of the U.S. Government by confirming in writing to the Canadian requester that the reexport/retransfer is authorized subject to the conditions of this section; or
(2) If the reexport/retransfer is to an end use or end user that, if directly exported from the U.S. requires a license, retransfer must be handled in accordance with § 123.9 of this subchapter.
1. In any instance when the exporter has knowledge that the defense article exempt from licensing is being exported for use other than by a qualified Canadian-registered person or for export to another foreign destination, other than the United States, in its original form or incorporated into another item, an export license must be obtained prior to the transfer to Canada.
2. Additional exemptions exist in other sections of this subchapter that are applicable to Canada, for example §§ 123.9, 125.4, and 124.2, that allow for the performance of defense services related to training in basic operations and maintenance, without a license, for certain defense articles lawfully exported, including those identified in Supplement No. 1 to part 126 of this subchapter.
(a) A license from the Directorate of Defense Trade Controls is not required if:
(1) The article or technical data to be exported was sold, leased, or loaned by the Department of Defense to a foreign country or international organization pursuant to the Arms Export Control Act or the Foreign Assistance Act of 1961, as amended, and
(2) The article or technical data is delivered to representatives of such a country or organization in the United States; and
(3) The article or technical data is to be exported from the United States on a military aircraft or naval vessel of that government or organization or via the Defense Transportation Service (DTS).
(b) Foreign military aircraft and naval vessels. A license is not required for the entry into the United States of military aircraft or naval vessels of any foreign state if no overhaul, repair, or modification of the aircraft or naval vessel is to be performed. However, Department of State approval for overflight (pursuant to the 49 U.S.C. 40103) and naval visits must be obtained from the Bureau of Political-Military Affairs, Office of International Security Operations.
(c) Foreign Military Sales Program. A license from the Directorate of Defense Trade Controls is not required if the defense article or technical data or a defense service to be transferred was sold, leased or loaned by the Department of Defense to a foreign country or international organization under the Foreign Military Sales (FMS) Program of the Arms Export Control Act pursuant to an Letter of Offer and Acceptance (LOA) authorizing such transfer which meets the criteria stated below:
(1) Transfers of the defense articles, technical data or defense services using this exemption may take place only during the period which the FMS Letter of Offer and Acceptance (LOA) and implementing USG FMS contracts and subcontracts are in effect and serve as authorization for the transfers hereunder in lieu of a license. After the USG FMS contracts and subcontracts have expired and the LOA no longer serves as such authorization, any further provision of defense articles, technical data or defense services shall not be covered by this section and shall instead be subject to other authorization requirements of this subchapter; and
(2) The defense article, technical data or defense service to be transferred are specifically identified in an executed LOA, in furtherance of the Foreign Military Sales Program signed by an authorized Department of Defense Representative and an authorized representative of the foreign government, and
(3) The transfer of the defense article and related technical data is effected during the duration of the relevant Letter of Offer and Acceptance (LOA), similarly a defense service is to be provided only during the duration of the USG FMS contract or subcontract and not to exceed the specified duration of the LOA, and
(4) The U.S. person responsible for the transfer maintains records of all transfers in accordance with part 122 of this subchapter, and
(5) For transfers of defense articles and technical data,
(i) The transfer is made by the relevant foreign diplomatic mission of the purchasing country or its authorized freight forwarder, provided that the freight forwarder is registered with the Directorate of Defense Trade Controls pursuant to part 122 of this subchapter, and
(ii) At the time of shipment, U.S. Customs and Border Protection is provided the Electronic Export Information, Internal Transaction Number and any other documents required by U.S. Customs and Border Protection in carrying out its responsibilities. The invoices for the shipment must be annotated: “This shipment is authorized for export pursuant to 22 CFR 126.6(c), under FMS Case [insert case identification]. The U.S. Government point of contact is ____, telephone number ____,” and
(iii) Any classified hardware and related technical data involved in the transfer must have the requisite U.S. Government security clearance and transportation plan and be shipped in accordance with the Department of Defense National Industrial Security Program Operating Manual. The exporter shall provide an electronic copy of the transportation plan via the U.S. Customs and Border Protection’s electronic system(s), unless electronic reporting of such information is unavailable, in which case U.S. Customs and Border Protection will issue instructions, or
(6) For transfers of defense services:
(i) A contract or subcontract between the U.S. person(s) responsible for providing the defense service and the USG exists that:
(A) Specifically defines the scope of the defense service to be transferred;
(B) Identifies the FMS case identifier,
(C) Identifies the foreign recipients of the defense service
(D) Identifies any other U.S. or foreign parties that may be involved and their roles/responsibilities, to the extent known when the contract is executed,
(E) Provides a specified period of duration in which the defense service may be performed, and
(ii) The U.S. person(s) identified in the contract maintain a registration with the Directorate of Defense Trade Controls for the entire time that the defense service is being provided. In any instance when the U.S. registered person(s) identified in the contract employs a subcontractor, the subcontractor may only use this exemption when registered with DDTC, and when such subcontract meets the above stated requirements, and
(iii) In instances when the defense service involves the transfer of classified technical data, the U.S. person transferring the defense service must have the appropriate USG security clearance and a transportation plan, if appropriate, in compliance with the Department of Defense National Industrial Security Program Operating Manual.
§ 126.7-126.12 [Reserved]
§ 126.13 Required information.
(a) All applications for licenses (DSP-5, DSP-61, DSP-73, and DSP-85), all requests for approval of agreements and amendments thereto under part 124 of this subchapter, and all requests for other written authorizations (including requests for retransfer or reexport pursuant to § 123.9 of this subchapter) must include a letter signed by a responsible official empowered by the applicant and addressed to the Directorate of Defense Trade Controls, stating whether:
(1) The applicant or the chief executive officer, president, vice-presidents, secretary, partner, member, other senior officers or officials (e.g., comptroller, treasurer, general counsel) or any member of the board of directors is the subject of an indictment or has been otherwise charged (e.g., by criminal information in lieu of indictment) for, or has been convicted of, violating any of the U.S. criminal statutes enumerated in § 120.6 of this subchapter;
(2) The applicant or the chief executive officer, president, vice-presidents, secretary, partner, member, other senior officers or officials (e.g., comptroller, treasurer, general counsel) or any member of the board of directors is ineligible to contract with, or to receive a license or other approval to temporarily import or export defense articles or defense services from any agency of the U.S. Government;
(3) To the best of the applicant’s knowledge, any party to the export as defined in § 120.68(a) of this subchapter has been convicted of violating any of the U.S. criminal statutes enumerated in § 120.6 of this subchapter, or is ineligible to contract with, or to receive a license or other approval to temporarily import or export defense articles or defense services from any agency of the U.S. government; and
(4) The natural person signing the application, notification, or other request for approval (including the statement required by this subchapter) is a citizen or national of the United States, has been lawfully admitted to the United States for permanent residence (and maintains such lawful permanent residence status) under the Immigration and Nationality Act, as amended (8 U.S.C. 1101(a)(20), 66 Stat. 163), or is an official of a foreign government entity in the United States, or is a foreign person making a request pursuant to § 123.9 of this subchapter.
(b) In addition, all applications for licenses must include the complete names and addresses of all U.S. consignors and freight forwarders, and all foreign consignees and foreign intermediate consignees involved in the transaction. Port Directors of U.S. Customs and Border Protection and Department of Defense transmittal authorities will permit only those U.S. consignors or freight forwarders listed on the license to make shipments under the license, and only to those foreign consignees and foreign intermediate consignees listed on the license. Applicants should list all freight forwarders who may be involved with shipments under the license to ensure that the list is complete and to avoid the need for amendments after the license has been approved. If there are unusual or extraordinary circumstances that preclude the specific identification of all the U.S. consignors and freight forwarders and all foreign consignees and foreign intermediate consignees, the applicant must provide a letter of explanation with each application.
(c) In cases when natural foreign persons are employed at or assigned to security-cleared facilities, provision by the applicant of a technology control plan will facilitate processing.
(a) Comprehensive authorizations. With respect to NATO members, Australia, Japan, and Sweden, the Directorate of Defense Trade Controls may provide the comprehensive authorizations described in paragraphs (a) and (b) of this section for circumstances where the full parameters of a commercial export endeavor including the needed defense exports can be well anticipated and described in advance, thereby making use of such comprehensive authorizations appropriate.
(1) Major project authorization. With respect to NATO members, Australia, Japan, and Sweden, the Directorate of Defense Trade Controls may provide comprehensive authorizations for well circumscribed commercially developed “major projects”, where a principal registered U.S. exporter/prime contractor identifies in advance the broad parameters of a commercial project including defense exports needed, other participants (e.g., exporters with whom they have “teamed up,” or subcontractors), and foreign government end users. Projects eligible for such authorization may include a commercial export of a major weapons system for a foreign government involving, for example, multiple U.S. suppliers under a commercial teaming agreement to design, develop and manufacture defense articles to meet a foreign government’s requirements. U.S. exporters seeking such authorization must provide detailed information concerning the scope of the project, including other exporters, U.S. subcontractors, and planned exports (including re-exports) of defense articles, defense services, and technical data, and meet the other requirements set forth in paragraph (b) of this section.
(2) Major program authorization. With respect to NATO members, Australia, Japan, and Sweden, the Directorate of Defense Trade Controls may provide comprehensive authorizations for well circumscribed commercially developed “major program”. This variant would be available where a single registered U.S. exporter defines in advance the parameters of a broad commercial program for which the registrant will be providing all phases of the necessary support (including the needed hardware, technical data, defense services, development, manufacturing, and logistic support). U.S. exporters seeking such authorization must provide detailed information concerning the scope of the program, including planned exports (including re-exports) of defense articles, defense services, and technical data, and meet the other requirements set forth in paragraph (b) of this section.
(3)(i) Global project authorization. With respect to NATO members, Australia, Japan, and Sweden, the Directorate of Defense Trade Controls may provide a comprehensive “Global Project Authorization” to registered U.S. exporters for exports of defense articles, technical data or defense services in support of government to government cooperative projects (covering research and development or production) with one of these countries undertaken pursuant to an agreement between the U.S. Government and the government of such country, or a memorandum of understanding/agreement between the Department of Defense and the country’s Ministry of Defense.
(ii) A set of standard terms and conditions derived from and corresponding to the breadth of the activities and phases covered in such a cooperative MOU will provide the basis for this comprehensive authorization for all U.S. exporters (and foreign end users) identified by DoD as participating in such cooperative project. Such authorizations may cover a broad range of defined activities in support of such programs including multiple shipments of defense articles and technical data and performance of defense services for extended periods, and re-exports to approved end users.
(iii) Eligible end users will be limited to ministries of defense of MOU signatory countries and foreign companies serving as contractors of such countries.
(iv) Any requirement for non-transfer and use assurances from a foreign government may be deemed satisfied by the signature by such government of a cooperative agreement or by its ministry of defense of a cooperative MOU/MOA where the agreement or MOU contains assurances that are comparable to that required by a DSP-83 with respect to foreign governments and that clarifies that the government is undertaking responsibility for all its participating companies. The authorized non-government participants or end users (e.g., the participating government’s contractors) will still be required to execute DSP-83s.
(4) Technical data supporting an acquisition, teaming arrangement, merger, joint venture authorization. With respect to NATO member countries, Australia, Japan, and Sweden, the Directorate of Defense Trade Controls may provide a registered U.S. defense company a comprehensive authorization to export technical data in support of the U.S. exporter’s consideration of entering into a teaming arrangement, joint venture, merger, acquisition, or similar arrangement with prospective foreign partners. Specifically, the authorization is designed to permit the export of a broadly defined set of technical data to qualifying well established foreign defense firms in NATO countries, Australia, Japan, or Sweden in order to better facilitate a sufficiently in depth assessment of the benefits, opportunities and other relevant considerations presented by such prospective arrangements. U.S. exporters seeking such authorization must provide detailed information concerning the arrangement, joint venture, merger or acquisition, including any planned exports of defense articles, defense services, and technical data, and meet the other requirements set forth in paragraph (b) of this section.
(b) Provisions and requirements for comprehensive authorizations. Requests for the special comprehensive authorizations set forth in paragraph (a) of this section should be by letter addressed to the Directorate of Defense Trade Controls. With regard to a commercial major program or project authorization, or technical data supporting a teaming arrangement, merger, joint venture or acquisition, registered U.S. exporters may consult the Deputy Assistant Secretary of State for Defense Trade Controls about eligibility for and obtaining available comprehensive authorizations set forth in paragraph (a) of this section or pursuant to § 126.9(b) of this subchapter.
(1) Requests for consideration of all such authorizations should be formulated to correspond to one of the authorizations set out in paragraph (a) of this section, and should include:
(i) A description of the proposed program or project, including where appropriate a comprehensive description of all phases or stages; and
(ii) Its value; and
(iii) Types of exports needed in support of the program or project; and
(iv) Projected duration of same, within permissible limits; and
(v) Description of the exporter’s plan for record keeping and auditing of all phases of the program or project; and
(vi) In the case of authorizations for exports in support of government to government cooperative projects, identification of the cooperative project.
(2) Amendments to the requested authorization may be requested in writing as appropriate, and should include a detailed description of the aspects of the activities being proposed for amendment.
(3) The comprehensive authorizations set forth in paragraph (a) of this section may be made valid for the duration of the major commercial program or project, or cooperative project, not to exceed 10 years.
(4) Included among the criteria required for such authorizations are those set out in part 124, e.g., §§ 124.7, 124.8 and 124.9, as well as §§ 125.4 (technical data exported in furtherance of an agreement) and 123.16 (hardware being included in an agreement). Provisions required will also take into account the congressional notification requirements in §§ 123.15 and 124.11 of the ITAR. Specifically, comprehensive congressional notifications corresponding to the comprehensive parameters for the major program or project or cooperative project should be possible, with additional notifications such as those required by law for changes in value or other significant modifications.
(5) All authorizations will be consistent with all other applicable requirements of the ITAR, including requirements for non-transfer and use assurances (see §§ 123.10 and 124.10), congressional notifications (e.g., §§ 123.15 and 124.11), and other documentation (e.g., §§ 123.9 and 126.13).
(6) Special auditing and reporting requirements will also be required for these authorizations. Exporters using special authorizations are required to establish an electronic system for keeping records of all defense articles, defense services and technical data exported and comply with all applicable requirements for submitting shipping or export information within the allotted time.
§ 126.15 Expedited processing of license applications for the export of defense articles and defense services to Australia or the United Kingdom.
(a) Any application submitted for authorization of the export of defense articles or services to Australia or the United Kingdom will be expeditiously processed by the Department of State, in consultation with the Department of Defense. Such license applications will not be referred to any other Federal department or agency, except when the defense articles or defense services are classified or exceptional circumstances apply. (See section 1225, Pub. L. 108-375).
(b) To be eligible for the expedited processing in paragraph (a) of this section, the destination of the prospective export must be limited to Australia or the United Kingdom. No other country may be included as intermediary or ultimate end-user.
§ 126.16 Exemption pursuant to the Defense Trade Cooperation Treaty between the United States and Australia.
(a) Scope of exemption and required conditions – (1) Definitions. (i) An export means, for purposes of this section only, the initial movement of defense articles or defense services from the United States Community to the Australian Community.
(ii) A transfer means, for purposes of this section only, the movement of a previously exported defense article or defense service by a member of the Australian Community within the Australian Community, or between a member of the United States Community and a member of the Australian Community.
(iii) Reexport and retransfer. (A) Reexport means, for purposes of this section only, the movement of previously Exported Defense Articles by a member of the Australian Community from the Approved Community to a location outside the Territory of Australia.
(B) Retransfer means, for purposes of this section only, the movement of previously Exported Defense Articles by a member of the Australian Community from the Approved Community to a location within the Territory of Australia;
(iv) Intermediate consignee means, for purposes of this section, an entity or person who receives, but does not have access to, defense articles, including technical data, for the sole purpose of effecting onward movement to members of the Approved Community (see paragraph (k) of this section).
(2) Persons or entities exporting or transferring defense articles or defense services are exempt from the otherwise applicable licensing requirements if such persons or entities comply with the regulations set forth in this section. Except as provided in Supplement No. 1 to part 126 of this subchapter, Port Directors of U.S. Customs and Border Protection and postmasters shall permit the permanent and temporary export without a license from members of the United States Community to members of the Australian Community (see paragraph (d) of this section regarding the identification of members of the Australian Community) of defense articles and defense services not listed in Supplement No. 1 to part 126 of this subchapter, for the end-uses specifically identified pursuant to paragraphs (e) and (f) of this section. The purpose of this section is to specify the requirements to export, transfer, reexport, retransfer, or otherwise dispose of a defense article or defense service pursuant to the Defense Trade Cooperation Treaty between the United States and Australia. All persons must continue to comply with statutory and regulatory requirements outside of this subchapter concerning the import of defense articles and defense services or the possession or transfer of defense articles, including, but not limited to, regulations issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives found at 27 CFR parts 447, 478, and 479, which are unaffected by the Defense Trade Cooperation Treaty between the United States and Australia.
(3) Export. In order for an exporter to export a defense article or defense service pursuant to the Defense Trade Cooperation Treaty between the United States and Australia, all of the following conditions must be met:
(i) The exporter must be registered with the Directorate of Defense Trade Controls (DDTC) and must be eligible, according to the requirements and prohibitions of the Arms Export Control Act, this subchapter, and other provisions of United States law, to obtain an export license (or other forms of authorization to export) from any agency of the U.S. Government without restriction (see paragraphs (b) and (c) of this section for specific requirements);
(ii) The recipient of the export must be a member of the Australian Community (see paragraph (d) of this section regarding the identification of members of the Australian Community). Australian non-governmental entities and facilities that become ineligible for such membership will be removed from the Australian Community;
(iii) Intermediate consignees involved in the export must not be ineligible, according to the requirements and prohibitions of the Arms Export Control Act, this subchapter, and other provisions of United States law, to handle or receive a defense article or defense service without restriction (see paragraph (k) of this section for specific requirements);
(iv) The export must be for an end-use specified in the Defense Trade Cooperation Treaty between the United States and Australia and mutually agreed to by the U.S. Government and the Government of Australia pursuant to the Defense Trade Cooperation Treaty between the United States and Australia and the Implementing Arrangement thereto (the Australia Implementing Arrangement) (see paragraphs (e) and (f) of this section regarding authorized end-uses);
(v) The defense article or defense service is not excluded from the scope of the Defense Trade Cooperation Treaty between the United States and Australia (see paragraph (g) of this section and Supplement No. 1 to part 126 of this subchapter for specific information on the scope of items excluded from export under this exemption) and is marked or identified, at a minimum, as “Restricted USML” (see paragraph (j) of this section for specific requirements on marking exports);
(vi) All required documentation of such export is maintained by the exporter and recipient and is available upon the request of the U.S. Government (see paragraph (l) of this section for specific requirements); and
(vii) The Department of State has provided advance notification to the Congress, as required, in accordance with this section (see paragraph (o) of this section for specific requirements).
(4) Transfers. In order for a member of the Approved Community (i.e., the United States Community and Australian Community) to transfer a defense article or defense service under the Defense Trade Cooperation Treaty within the Approved Community, all of the following conditions must be met:
(i) The defense article or defense service must have been previously exported in accordance with paragraph (a)(3) of this section or transitioned from a license or other approval in accordance with paragraph (i) of this section;
(ii) The transferor and transferee of the defense article or defense service are members of the Australian Community (see paragraph (d) of this section regarding the identification of members of the Australian Community) or the United States Community (see paragraph (b) of this section for information on the United States Community/approved exporters);
(iii) The transfer is required for an end-use specified in the Defense Trade Cooperation Treaty between the United States and Australia and mutually agreed to by the Government of the United States and the Government of Australia pursuant to the terms of the Defense Trade Cooperation Treaty between the United States and Australia and the Australia Implementing Arrangement (see paragraphs (e) and (f) of this section regarding authorized end-uses);
(iv) The defense article or defense service is not identified in paragraph (g) of this section and Supplement No. 1 to part 126 of this subchapter as ineligible for export under this exemption, and is marked or otherwise identified, at a minimum, as “Restricted USML” (see paragraph (j) of this section for specific requirements on marking exports);
(v) All required documentation of such transfer is maintained by the transferor and transferee and is available upon the request of the U.S. Government (see paragraph (l) of this section for specific requirements); and
(vi) The Department of State has provided advance notification to the Congress in accordance with this section (see paragraph (o) of this section for specific requirements).
(5) This section does not apply to the export of defense articles or defense services from the United States pursuant to the Foreign Military Sales program. Once such items are delivered to the Australian Government, they may be treated as if they were exported pursuant to the Treaty and then must be marked, identified, transmitted, stored and handled in accordance with the Treaty, the Australia Implementing Arrangement, and the provisions of this section.
(b) United States Community. The following persons compose the United States Community and may export or transfer defense articles and defense services pursuant to the Defense Trade Cooperation Treaty between the United States and Australia:
(1) Departments and agencies of the U.S. Government, including their personnel acting in their official capacity, with, as appropriate, a security clearance and a need-to-know; and
(2) Non-governmental U.S. persons registered with DDTC and eligible, according to the requirements and prohibitions of the Arms Export Control Act, this subchapter, and other provisions of United States law, to obtain an export license (or other forms of authorization to export) from any agency of the U.S. Government without restriction, including their employees acting in their official capacity with, as appropriate, a security clearance and a need-to-know.
(c) An exporter that is otherwise an authorized exporter pursuant to paragraph (b) of this section may not export or transfer pursuant to the Defense Trade Cooperation Treaty between the United States and Australia if the exporter’s president, chief executive officer, any vice-president, any other senior officer or official (e.g., comptroller, treasurer, general counsel); any member of the board of directors of the exporter; any party to the export; or any source or manufacturer is ineligible to receive export licenses (or other forms of authorization to export) from any agency of the U.S. Government.
(d) Australian Community. For purposes of the exemption provided by this section, the Australian Community consists of:
(1) Government of Australia authorities with entities identified as members of the Approved Community through the DDTC Web site at the time of a transaction under this section; and
(2) The non-governmental Australian entities and facilities identified as members of the Approved Community through the DDTC Web site at the time of a transaction under this section; non-governmental Australian entities and facilities that become ineligible for such membership will be removed from the Australian Community.
(e) Authorized End-uses. The following end-uses, subject to paragraph (f) of this section, are specified in the Defense Trade Cooperation Treaty between the United States and Australia:
(1) United States and Australian combined military or counter-terrorism operations;
(2) United States and Australian cooperative security and defense research, development, production, and support programs;
(3) Mutually determined specific security and defense projects where the Government of Australia is the end-user; or
(4) U.S. Government end-use.
(f) Procedures for identifying authorized end-uses pursuant to paragraph (e) of this section:
(1) Operations, programs, and projects that can be publicly identified will be posted on the DDTC Web site;
(2) Operations, programs, and projects that cannot be publicly identified will be confirmed in written correspondence from DDTC; or
(3) U.S. Government end-use will be identified specifically in a U.S. Government contract or solicitation as being eligible under the Treaty.
(4) No other operations, programs, projects, or end-uses qualify for this exemption.
(g) Items eligible under this section. With the exception of items listed in Supplement No. 1 to part 126 of this subchapter, defense articles and defense services may be exported under this section subject to the following:
(1) An exporter authorized pursuant to paragraph (b)(2) of this section may market a defense article to members of the Australian Community if that exporter has been licensed by DDTC to export (as defined by § 120.50 of this subchapter) the identical type of defense article to any foreign person and end-use of the article is for an end-use identified in paragraph (e) of this section.
(2) The export of any defense article specific to the existence of (e.g., reveals the existence of or details of) anti-tamper measures made at U.S. Government direction always requires prior written approval from DDTC.
(3) U.S.-origin classified defense articles or defense services may be exported only pursuant to a written request, directive, or contract from the U.S. Department of Defense that provides for the export of the classified defense article(s) or defense service(s).
(4) U.S.-origin defense articles specific to developmental systems that have not obtained written Milestone B approval from the U.S. Department of Defense milestone approval authority are not eligible for export unless such export is pursuant to a written solicitation or contract issued or awarded by the U.S. Department of Defense for an end-use identified pursuant to paragraph (e)(1), (2), or (4) of this section.
(5) Defense articles excluded by paragraph (g) of this section or Supplement No. 1 to part 126 of this subchapter (e.g., USML Category XI (a)(3) electronically scanned array radar excluded by Note 2) that are embedded in a larger system that is eligible to ship under this section (e.g., a ship, an aircraft) must separately comply with any restrictions placed on that embedded defense article under this subchapter. The exporter must obtain a license or other authorization from DDTC for the export of such embedded defense articles (for example, USML Category XI (a)(3) electronically scanned array radar systems that are exempt from this section that are incorporated in an aircraft that is eligible to ship under this section continue to require separate authorization from DDTC for their export, transfer, reexport, or retransfer).
(6) No liability shall be incurred by or attributed to the U.S. Government in connection with any possible infringement of privately owned patent or proprietary rights, either domestic or foreign, by reason of an export conducted pursuant to this section.
(7) Sales by exporters made through the U.S. Government shall not include either charges for patent rights in which the U.S. Government holds a royalty-free license, or charges for information which the U.S. Government has a right to use and disclose to others, which is in the public domain, or which the U.S. Government has acquired or is entitled to acquire without restrictions upon its use and disclosure to others.
(h) Transfers, retransfers, and reexports. (1) Any transfer of a defense article or defense service not exempted in Supplement No. 1 to part 126 of this subchapter by a member of the Australian Community (see paragraph (d) of this section for specific information on the identification of the Community) to another member of the Australian Community or the United States Community for an end-use that is authorized by this exemption (see paragraphs (e) and (f) of this section regarding authorized end-uses) is authorized under this exemption.
(2) Any transfer or other provision of a defense article or defense service for an end-use that is not authorized by the exemption provided by this section is prohibited without a license or the prior written approval of DDTC (see paragraphs (e) and (f) of this section regarding authorized end-uses).
(3) Any retransfer or reexport, or other provision of a defense article or defense service by a member of the Australian Community to a foreign person that is not a member of the Australian Community, or to a U.S. person that is not a member of the United States Community, is prohibited without a license or the prior written approval of DDTC (see paragraph (d) of this section for specific information on the identification of the Australian Community).
(4) Any change in the use of a defense article or defense service previously exported, transferred, or obtained under this exemption by any foreign person, including a member of the Australian Community, to an end-use that is not authorized by this exemption is prohibited without a license or other written approval of DDTC (see paragraphs (e) and (f) of this section regarding authorized end-uses).
(5) Any retransfer, reexport, or change in end-use requiring such approval of the U.S. Government shall be made in accordance with § 123.9 of this subchapter.
(6) Defense articles excluded by paragraph (g) of this section or Supplement No. 1 to part 126 of this subchapter (e.g., USML Category XI (a)(3) electronically scanned array radar systems) that are embedded in a larger system that is eligible to ship under this section (e.g., a ship, an aircraft) must separately comply with any restrictions placed on that embedded defense article unless otherwise specified. A license or other authorization must be obtained from DDTC for the export, transfer, reexport, retransfer, or change in end-use of any such embedded defense article (for example, USML Category XI(a)(3) electronically scanned array radar systems that are excluded from this section by Supplement No. 1 to part 126 of this subchapter, Note 2 that are incorporated in an aircraft that is eligible to ship under this section continue to require separate authorization from DDTC for their export, transfer, reexport, or retransfer).
(7) A license or prior approval from DDTC is not required for a transfer, retransfer, or reexport of an exported defense article or defense service under this section, if:
(i) The transfer of defense articles or defense services is made by a member of the United States Community to Australian Department of Defence (ADOD) elements deployed outside the Territory of Australia and engaged in an authorized end-use (see paragraphs (e) and (f) of this section regarding authorized end-uses) using ADOD transmission channels or the provisions of this section (Note: For purposes of paragraph (h)(7)(i) through (iv) of this section, per Section 9(9) of the Australia Implementing Arrangement, “ADOD Transmission channels” includes electronic transmission of a defense article and transmission of a defense article by an ADOD contracted carrier or freight forwarder that merely transports or arranges transport for the defense article in this instance.);
(ii) The transfer of defense articles or defense services is made by a member of the United States Community to an Approved Community member (either United States or Australian) that is operating in direct support of ADOD elements deployed outside the Territory of Australia and engaged in an authorized end-use (see paragraphs (e) and (f) of this section regarding authorized end-uses) using ADOD transmission channels or the provisions of this section;
(iii) The reexport is made by a member of the Australian Community to ADOD elements deployed outside the Territory of Australia engaged in an authorized end-use (see paragraphs (e) and (f) of this section regarding authorized end-uses) using ADOD transmission channels or the provisions of this section;
(iv) The reexport is made by a member of the Australian Community to an Approved Community member (either United States or Australian) that is operating in direct support of ADOD elements deployed outside the Territory of Australia engaged in an authorized end-use (see paragraphs (e) and (f) of this section regarding authorized end-uses) using ADOD transmission channels or the provisions of this section; or
(v) The defense article or defense service will be delivered to the ADOD for an authorized end-use (see paragraphs (e) and (f) of this section regarding authorized end-uses); the ADOD may deploy the item as necessary when conducting official business within or outside the Territory of Australia. The item must remain under the effective control of the ADOD while deployed and access may not be provided to unauthorized third parties.
(8) U.S. persons registered, or required to be registered, pursuant to part 122 of this subchapter and members of the Australian Community must immediately notify DDTC of any actual or proposed sale, retransfer, or reexport of a defense article or defense service on the U.S. Munitions List originally exported under this exemption to any of the countries listed in § 126.1 of this subchapter or any person acting on behalf of such countries, whether within or outside the United States. Any person knowing or having reason to know of such a proposed or actual sale, reexport, or retransfer shall submit such information in writing to the Office of Defense Trade Controls Compliance, Directorate of Defense Trade Controls.
(i) Transitions. (1) Any previous export of a defense article under a license or other approval of the U.S. Department of State remains subject to the conditions and limitations of the original license or authorization unless DDTC has approved in writing a transition to this section.
(2) If a U.S. exporter desires to transition from an existing license or other approval to the use of the provisions of this section, the following is required:
(i) The U.S. exporter must submit a written request to DDTC, which identifies the defense articles or defense services to be transitioned, the existing license(s) or other authorizations under which the defense articles or defense services were originally exported, and the Treaty-eligible end-use for which the defense articles or defense services will be used. Any license(s) filed with U.S. Customs and Border Protection should remain on file until the exporter has received approval from DDTC to retire the license(s) and transition to this section. When this approval is conveyed to U.S. Customs and Border Protection by DDTC, the license(s) will be returned to DDTC by U.S. Customs and Border Protection in accord with existing procedures for the return of expired licenses in § 123.22(c) of this subchapter.
(ii) Any license(s) not filed with U.S. Customs and Border Protection must be returned to DDTC with a letter citing approval by DDTC to transition to this section as the reason for returning the license(s).
(3) If a member of the Australian Community desires to transition defense articles received under an existing license or other approval to the processes established under the Treaty, the Australian Community member must submit a written request to the Government of Australia. The Government of Australia will submit the request to DDTC for review and approval. The defense article or defense service shall remain subject to the conditions and limitations of the existing license or other approval until the Australian Community member has received via the Government of Australia the approval from DDTC.
(4) Authorized exporters identified in paragraph (b)(2) of this section who have exported a defense article or defense service that has subsequently been placed on the list of exempted items in Supplement No. 1 to part 126 of this subchapter must review and adhere to the requirements in the relevant
(5) Any defense article or defense service transitioned from a license or other approval to treatment under this section must be marked in accordance with the requirements of paragraph (j) of this section.
(j) Marking of exports. (1) All defense articles and defense services exported or transitioned pursuant to the Defense Trade Cooperation Treaty between the United States and Australia and this section shall be marked or identified prior to movement as follows:
(i) For classified defense articles and defense services the standard marking or identification shall read“//CLASSIFICATION LEVEL USML//REL AUS and USA Treaty Community//.” For example, for defense articles classified SECRET, the marking or identification shall be “//SECRET USML//REL AUS and USA Treaty Community//.”
(ii) Unclassified defense articles and defense services exported under or transitioned pursuant to this section shall be handled while in Australia as “Restricted USML” and the standard marking or identification shall read“//RESTRICTED USML//REL AUS and USA Treaty Community//.”
(2) Where U.S.-origin defense articles are returned to a member of the United States Community identified in paragraph (b) of this section, any defense articles marked or identified pursuant to paragraph (j)(1)(ii) of this section as “//RESTRICTED USML//REL AUS and USA Treaty Community//” will be considered unclassified and the marking or identification shall be removed; and
(3) The standard marking and identification requirements are as follows:
(i) Defense articles (other than technical data) shall be individually labeled with the appropriate identification detailed in paragraphs (j)(1) and (j)(2) of this section; or, where such labeling is impracticable (e.g., propellants, chemicals), shall be accompanied by documentation (such as contracts or invoices) clearly associating the defense articles with the appropriate markings as detailed in paragraphs (j)(1)(i) and (j)(1)(ii) of this section;
(ii) Technical data (including data packages, technical papers, manuals, presentations, specifications, guides and reports), regardless of media or means of transmission (physical, oral, or electronic), shall be individually labeled with the appropriate identification detailed in paragraphs (j)(1) and (j)(2) of this section; or, where such labeling is impractical shall be accompanied by documentation (such as contracts or invoices) or verbal notification clearly associating the technical data with the appropriate markings as detailed in paragraphs (j)(1)(i) and (j)(1)(ii) of this section; and
(4) Defense services shall be accompanied by documentation (contracts, invoices, shipping bills, or bills of lading) clearly labeled with the appropriate identification detailed in paragraphs (j)(1) and (j)(2) of this section.
(5) The exporter shall incorporate the following statement as an integral part of the bill of lading and the invoice whenever defense articles are to be exported: “These U.S. Munitions List commodities are authorized by the U.S. Government under the U.S.-Australia Defense Trade Cooperation Treaty for export only to Australia for use in approved projects, programs or operations by members of the Australian Community. They may not be retransferred or reexported or used outside of an approved project, program, or operation, either in their original form or after being incorporated into other end-items, without the prior written approval of the U.S. Department of State.”
(k) Intermediate consignees. (1) Unclassified exports under this section may only be handled by:
(i) U.S. intermediate consignees who are:
(A) Exporters registered with DDTC and eligible;
(B) Licensed customs brokers who are subject to background investigation and have passed a comprehensive examination administered by U.S. Customs and Border Protection; or
(C) Commercial air freight and surface shipment carriers, freight forwarders, or other parties not exempt from registration under § 129.3(b)(3) of this subchapter, that are identified at the time of export as being on the U.S. Department of Defense Civil Reserve Air Fleet (CRAF) list of approved air carriers, a link to which is available on the DDTC Web site; or
(ii) Australian intermediate consignees who are:
(A) Members of the Australian Community; or
(B) Freight forwarders, customs brokers, commercial air freight and surface shipment carriers, or other Australian parties that are identified at the time of export as being on the list of Authorized Australian Intermediate Consignees, which is available on the DDTC Web site.
(2) Classified exports must comply with the security requirements of the National Industrial Security Program Operating Manual (DoD 5220.22-M and supplements or successors).
(l) Records. (1) All exporters authorized pursuant to paragraph (b)(2) of this section who export defense articles or defense services pursuant to the Defense Trade Cooperation Treaty between the United States and Australia and this section shall maintain detailed records of their exports, imports, and transfers. Exporters shall also maintain detailed records of any reexports and retransfers approved or otherwise authorized by DDTC of defense articles or defense services subject to the Defense Trade Cooperation Treaty between the United States and Australia and this section. These records shall be maintained for a minimum of five years from the date of export, import, transfer, reexport, or retransfer and shall be made available upon request to DDTC or a person designated by DDTC (e.g., the Diplomatic Security Service) or U.S. Immigration and Customs Enforcement, or U.S. Customs and Border Protection. Records in an electronic format must be maintained using a process or system capable of reproducing all records on paper. Such records when displayed on a viewer, monitor, or reproduced on paper, must exhibit a high degree of legibility and readability. (For the purpose of this section, “legible” and “legibility” mean the quality of a letter or numeral that enables the observer to identify it positively and quickly to the exclusion of all other letters or numerals. “Readable” and “readability” means the quality of a group of letters or numerals being recognized as complete words or numbers.). These records shall consist of the following:
(i) Port of entry/exit;
(ii) Date of export/import;
(iii) Method of export/import;
(iv) Commodity code and description of the commodity, including technical data;
(v) Value of export;
(vi) Reference to this section and justification for export under the Treaty;
(vii) End-user/end-use;
(viii) Identification of all U.S. and foreign parties to the transaction;
(ix) How the export was marked;
(x) Security classification of the export;
(xi) All written correspondence with the U.S. Government on the export;
(xii) All information relating to political contributions, fees, or commissions furnished or obtained, offered, solicited, or agreed upon as outlined in paragraph (m) of this section;
(xiii) Purchase order or contract;
(xiv) Technical data actually exported;
(xv) The Internal Transaction Number for the Electronic Export Information filing using U.S. Customs and Border Protection’s electronic system(s);
(xvi) All shipping documentation (including, but not limited to the airway bill, bill of lading, packing list, delivery verification, and invoice); and
(xvii) Statement of Registration (Form DS-2032).
(2) Filing of export information. All exporters of defense articles under the Defense Trade Cooperation Treaty between the United States and Australia and this section must electronically file Electronic Export Information (EEI) using U.S. Customs and Border Protection’s electronic system(s), citing one of the four below referenced codes in the appropriate field in the EEI for each shipment:
(i) For exports in support of United States and Australian combined military or counter-terrorism operations identify § 126.16(e)(1) (the name or an appropriate description of the operation shall be placed in the appropriate field in the EEI, as well);
(ii) For exports in support of United States and Australian cooperative security and defense research, development, production, and support programs identify § 126.16(e)(2) (the name or an appropriate description of the program shall be placed in the appropriate field in the EEI, as well);
(iii) For exports in support of mutually determined specific security and defense projects where the Government of Australia is the end-user identify § 126.16(e)(3) (the name or an appropriate description of the project shall be placed in the appropriate field in the EEI, as well); or
(iv) For exports that will have a U.S. Government end-use identify § 126.16(e)(4) (the U.S. Government contract number or solicitation number (e.g., “U.S. Government contract number XXXXX”) shall be placed in the appropriate field in the EEI, as well). Such exports must meet the required export documentation and filing guidelines, including for defense services, of § 123.22(a), (b)(1), and (b)(2) of this subchapter.
(m) Fees and commissions. All exporters authorized pursuant to paragraph (b)(2) of this section shall, with respect to each export, transfer, reexport, or retransfer, pursuant to the Defense Trade Cooperation Treaty between the United States and Australia and this section, submit a statement to DDTC containing the information identified in § 130.10 of this subchapter relating to fees, commissions, and political contributions on contracts or other instruments valued in an amount of $500,000 or more.
(n) Violations and enforcement. (1) Exports, transfers, reexports, and retransfers that do not comply with the conditions prescribed in this section will constitute violations of the Arms Export Control Act and this subchapter, and are subject to all relevant criminal, civil, and administrative penalties (see § 127.1 of this subchapter), and may also be subject to penalty under other statutes or regulations.
(2) U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection officers may take appropriate action to ensure compliance with this section as to the export or the attempted export of any defense article or technical data, including the inspection of loading or unloading of any vessel, vehicle, or aircraft.
(3) U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection officers have the authority to investigate, detain, or seize any export or attempted export of defense articles or technical data that does not comply with this section or that is otherwise unlawful.
(4) DDTC or a person designated by DDTC (e.g., the Diplomatic Security Service), U.S. Immigration and Customs Enforcement, or U.S. Customs and Border Protection may require the production of documents and information relating to any actual or attempted export, transfer, reexport, or retransfer pursuant to this section. Any foreign person refusing to provide such records within a reasonable period of time shall be suspended from the Australian Community and ineligible to receive defense articles or defense services pursuant to the exemption under this section or otherwise.
(o) Procedures for legislative notification. (1) Exports pursuant to the Defense Trade Cooperation Treaty between the United States and Australia and this section by any person identified in paragraph (b)(2) of this section shall not take place until 30 days after DDTC has acknowledged receipt of a written notification from the exporter notifying the Department of State if the export involves one or more of the following:
(i) A contract or other instrument for the export of major defense equipment in the amount of $25,000,000 or more, or for defense articles and defense services in the amount of $100,000,000 or more;
(ii) A contract for the export of firearms controlled under Category I of the U.S. Munitions List of the International Traffic in Arms Regulations in an amount of $1,000,000 or more;
(iii) A contract, regardless of value, for the manufacturing abroad of any item of significant military equipment (see § 120.36 of this subchapter); or
(iv) An amended contract that meets the requirements of paragraphs (o)(1)(i) through (o)(1)(iii) of this section.
(2) The written notification required in paragraph (o)(1) of this section shall indicate the item/model number, general item description, U.S. Munitions List category, value, and quantity of items to be exported pursuant to the Defense Trade Cooperation Treaty between the United States and Australia and this section, and shall be accompanied by the following additional information:
(i) The information identified in § 130.10 and § 130.11 of this subchapter;
(ii) A statement regarding whether any offset agreement is final to be entered into in connection with the export and a description of any such offset agreement;
(iii) A copy of the signed contract; and
(iv) If the notification is for paragraph (o)(1)(ii) of this section, a statement of what will happen to the weapons in their inventory (for example, whether the current inventory will be sold, reassigned to another service branch, destroyed, etc.).
(3) The Department of State will notify the Congress of exports that meet the requirements of paragraph (o)(1) of this section.
§ 126.17 Exemption pursuant to the Defense Trade Cooperation Treaty between the United States and the United Kingdom.
(a) Scope of exemption and required conditions – (1) Definitions. (i) An export means, for purposes of this section only, the initial movement of defense articles or defense services from the United States Community to the United Kingdom Community.
(ii) A transfer means, for purposes of this section only, the movement of a previously exported defense article or defense service by a member of the United Kingdom Community within the United Kingdom Community, or between a member of the United States Community and a member of the United Kingdom Community.
(iii) Reexport and retransfer. (A) Reexport means, for purposes of this section only, movement of previously Exported Defense Articles by a member of the United Kingdom Community from the Approved Community to a location outside the Territory of the United Kingdom.
(B) Retransfer means, for purposes of this section only, the movement of previously Exported Defense Articles by a member of the United Kingdom Community from the Approved Community to a location within the Territory of the United Kingdom.
(iv) Intermediate consignee means, for purposes of this section, an approved entity or person who receives, but does not have access to, defense articles, including technical data, for the sole purpose of effecting onward movement to members of the Approved Community (see paragraph (k) of this section).
(2) Persons or entities exporting or transferring defense articles or defense services are exempt from the otherwise applicable licensing requirements if such persons or entities comply with the regulations set forth in this section. Except as provided in Supplement No. 1 to part 126 of this subchapter, Port Directors of U.S. Customs and Border Protection and postmasters shall permit the permanent and temporary export without a license from members of the United States Community to members of the United Kingdom Community (see paragraph (d) of this section regarding the identification of members of the United Kingdom Community) of defense articles and defense services not listed in Supplement No. 1 to part 126 of this subchapter, for the end-uses specifically identified pursuant to paragraphs (e) and (f) of this section. The purpose of this section is to specify the requirements to export, transfer, reexport, retransfer, or otherwise dispose of a defense article or defense service pursuant to the Defense Trade Cooperation Treaty between the United States and the United Kingdom. All persons must continue to comply with statutory and regulatory requirements outside of this subchapter concerning the import of defense articles and defense services or the possession or transfer of defense articles, including, but not limited to, regulations issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives found at 27 CFR parts 447, 478, and 479, which are unaffected by the Defense Trade Cooperation Treaty between the United States and the United Kingdom and continue to apply fully to defense articles and defense services subject to either of the aforementioned treaties and the exemptions contained in this section.
(3) Export. In order for an exporter to export a defense article or defense service pursuant to the Defense Trade Cooperation Treaty between the United States and the United Kingdom, all of the following conditions must be met:
(i) The exporter must be registered with the Directorate of Defense Trade Controls (DDTC) and must be eligible, according to the requirements and prohibitions of the Arms Export Control Act, this subchapter, and other provisions of United States law, to obtain an export license (or other forms of authorization to export) from any agency of the U.S. Government without restriction (see paragraphs (b) and (c) of this section for specific requirements);
(ii) The recipient of the export must be a member of the United Kingdom Community (see paragraph (d) of this section regarding the identification of members of the United Kingdom Community). United Kingdom non-governmental entities and facilities that become ineligible for such membership will be removed from the United Kingdom Community;
(iii) Intermediate consignees involved in the export must not be ineligible, according to the requirements and prohibitions of the Arms Export Control Act, this subchapter, and other provisions of United States law, to handle or receive a defense article or defense service without restriction (see paragraph (k) of this section for specific requirements);
(iv) The export must be for an end-use specified in the Defense Trade Cooperation Treaty between the United States and the United Kingdom and mutually agreed to by the U.S. Government and the Government of the United Kingdom pursuant to the Defense Trade Cooperation Treaty between the United States and the United Kingdom and the Implementing Arrangement thereto (United Kingdom Implementing Arrangement) (see paragraphs (e) and (f) of this section regarding authorized end-uses);
(v) The defense article or defense service is not excluded from the scope of the Defense Trade Cooperation Treaty between the United States and the United Kingdom (see paragraph (g) of this section and Supplement No. 1 to part 126 of this subchapter for specific information on the scope of items excluded from export under this exemption) and is marked or identified, at a minimum, as “Restricted USML” (see paragraph (j) of this section for specific requirements on marking exports);
(vi) All required documentation of such export is maintained by the exporter and recipient and is available upon the request of the U.S. Government (see paragraph (l) of this section for specific requirements); and
(vii) The Department of State has provided advance notification to the Congress, as required, in accordance with this section (see paragraph (o) of this section for specific requirements).
(4) Transfers. In order for a member of the Approved Community (i.e., the United States Community and United Kingdom Community) to transfer a defense article or defense service under the Defense Trade Cooperation Treaty within the Approved Community, all of the following conditions must be met:
(i) The defense article or defense service must have been previously exported in accordance with paragraph (a)(3) of this section or transitioned from a license or other approval in accordance with paragraph (i) of this section;
(ii) The transferor and transferee of the defense article or defense service are members of the United Kingdom Community (see paragraph (d) of this section regarding the identification of members of the United Kingdom Community) or the United States Community (see paragraph (b) of this section for information on the United States Community/approved exporters);
(iii) The transfer is required for an end-use specified in the Defense Trade Cooperation Treaty between the United States and the United Kingdom and mutually agreed to by the Government of the United States and the Government of the United Kingdom pursuant to the terms of the Defense Trade Cooperation Treaty between the United States and the United Kingdom and the United Kingdom Implementing Arrangement (see paragraphs (e) and (f) of this section regarding authorized end-uses);
(iv) The defense article or defense service is not identified in paragraph (g) of this section and Supplement No. 1 to part 126 of this subchapter as ineligible for export under this exemption, and is marked or otherwise identified, at a minimum, as “Restricted USML” (see paragraph (j) of this section for specific requirements on marking exports);
(v) All required documentation of such transfer is maintained by the transferor and transferee and is available upon the request of the U.S. Government (see paragraph (l) of this section for specific requirements); and
(vi) The Department of State has provided advance notification to the Congress in accordance with this section (see paragraph (o) of this section for specific requirements).
(5) This section does not apply to the export of defense articles or defense services from the United States pursuant to the Foreign Military Sales program. Once such items are delivered to Her Majesty’s Government, they may be treated as if they were exported pursuant to the Treaty and then must be marked, identified, transmitted, stored and handled in accordance with the Treaty, the United Kingdom Implementing Arrangement, and the provisions of this section.
(b) United States Community. The following persons compose the United States Community and may export or transfer defense articles and defense services pursuant to the Defense Trade Cooperation Treaty between the United States and the United Kingdom:
(1) Departments and agencies of the U.S. Government, including their personnel acting in their official capacity, with, as appropriate, a security clearance and a need-to-know; and
(2) Non-governmental U.S. persons registered with DDTC and eligible, according to the requirements and prohibitions of the Arms Export Control Act, this subchapter, and other provisions of United States law, to obtain an export license (or other form of authorization to export) from any agency of the U.S. Government without restriction, including their employees acting in their official capacity with, as appropriate, a security clearance and a need-to-know.
(c) An exporter that is otherwise an authorized exporter pursuant to paragraph (b) of this section may not export or transfer pursuant to the Defense Trade Cooperation Treaty between the United States and the United Kingdom if the exporter’s president, chief executive officer, any vice-president, any other senior officer or official (e.g., comptroller, treasurer, general counsel); any member of the board of directors of the exporter; any party to the export; or any source or manufacturer is ineligible to receive export licenses (or other forms of authorization to export) from any agency of the U.S. Government.
(d) United Kingdom Community. For purposes of the exemption provided by this section, the United Kingdom Community consists of:
(1) Her Majesty’s Government entities and facilities identified as members of the Approved Community through the DDTC Web site at the time of a transaction under this section; and
(2) The non-governmental United Kingdom entities and facilities identified as members of the Approved Community through the DDTC Web site (www.pmddtc.state.gov) at the time of a transaction under this section; non-governmental United Kingdom entities and facilities that become ineligible for such membership will be removed from the United Kingdom Community.
(e) Authorized End-uses. The following end-uses, subject to paragraph (f) of this section, are specified in the Defense Trade Cooperation Treaty between the United States and the United Kingdom:
(1) United States and United Kingdom combined military or counter-terrorism operations;
(2) United States and United Kingdom cooperative security and defense research, development, production, and support programs;
(3) Mutually determined specific security and defense projects where the Government of the United Kingdom is the end-user; or
(4) U.S. Government end-use.
(f) Procedures for identifying authorized end-uses pursuant to paragraph (e) of this section:
(1) Operations, programs, and projects that can be publicly identified will be posted on the DDTC Web site;
(2) Operations, programs, and projects that cannot be publicly identified will be confirmed in written correspondence from DDTC; or
(3) U.S. Government end-use will be identified specifically in a U.S. Government contract or solicitation as being eligible under the Treaty.
(4) No other operations, programs, projects, or end-uses qualify for this exemption.
(g) Items eligible under this section. With the exception of items listed in Supplement No. 1 to part 126 of this subchapter, defense articles and defense services may be exported under this section subject to the following:
(1) An exporter authorized pursuant to paragraph (b)(2) of this section may market a defense article to members of the United Kingdom Community if that exporter has been licensed by DDTC to export (as defined by § 120.50 of this subchapter) the identical type of defense article to any foreign person and end-use of the article is for an end-use identified in paragraph (e) of this section.
(2) The export of any defense article specific to the existence of (e.g., reveals the existence of or details of) anti-tamper measures made at U.S. Government direction always requires prior written approval from DDTC.
(3) U.S.-origin classified defense articles or defense services may be exported only pursuant to a written request, directive, or contract from the U.S. Department of Defense that provides for the export of the classified defense article(s) or defense service(s).
(4) U.S.-origin defense articles specific to developmental systems that have not obtained written Milestone B approval from the U.S. Department of Defense milestone approval authority are not eligible for export unless such export is pursuant to a written solicitation or contract issued or awarded by the U.S. Department of Defense for an end-use identified pursuant to paragraph (e)(1), (2), or (4) of this section.
(5) Defense articles excluded by paragraph (g) of this section or Supplement No. 1 to part 126 of this subchapter (e.g., USML Category XI (a)(3) electronically scanned array radar excluded by Note 2) that are embedded in a larger system that is eligible to ship under this section (e.g., a ship, an aircraft) must separately comply with any restrictions placed on that embedded defense article under this subchapter. The exporter must obtain a license or other authorization from DDTC for the export of such embedded defense articles (for example, USML Category XI (a)(3) electronically scanned array radar systems that are exempt from this section that are incorporated in an aircraft that is eligible to ship under this section continue to require separate authorization from DDTC for their export, transfer, reexport, or retransfer).
(6) No liability shall be incurred by or attributed to the U.S. Government in connection with any possible infringement of privately owned patent or proprietary rights, either domestic or foreign, by reason of an export conducted pursuant to this section.
(7) Sales by exporters made through the U.S. Government shall not include either charges for patent rights in which the U.S. Government holds a royalty-free license, or charges for information which the U.S. Government has a right to use and disclose to others, which is in the public domain, or which the U.S. Government has acquired or is entitled to acquire without restrictions upon its use and disclosure to others.
(8) Defense articles on the European Union Dual Use List (as described in Annex 1 to EC Council Regulation No. 428/2009) are not eligible for export under the Defense Trade Cooperation Treaty between the United States and the United Kingdom. These articles have been identified and included in Supplement No.1 to part 126.
(h) Transfers, retransfers, and reexports. (1) Any transfer of a defense article or defense service not exempted in Supplement No. 1 to part 126 of this subchapter by a member of the United Kingdom Community (see paragraph (d) of this section for specific information on the identification of the Community) to another member of the United Kingdom Community or the United States Community for an end-use that is authorized by this exemption (see paragraphs (e) and (f) of this section regarding authorized end-uses) is authorized under this exemption.
(2) Any transfer or other provision of a defense article or defense service for an end-use that is not authorized by the exemption provided by this section is prohibited without a license or the prior written approval of DDTC (see paragraphs (e) and (f) of this section regarding authorized end-uses).
(3) Any retransfer or reexport, or other provision of a defense article or defense service by a member of the United Kingdom Community to a foreign person that is not a member of the United Kingdom Community, or to a U.S. person that is not a member of the United States Community, is prohibited without a license or the prior written approval of DDTC (see paragraph (d) of this section for specific information on the identification of the United Kingdom Community).
(4) Any change in the use of a defense article or defense service previously exported, transferred, or obtained under this exemption by any foreign person, including a member of the United Kingdom Community, to an end-use that is not authorized by this exemption is prohibited without a license or other written approval of DDTC (see paragraphs (e) and (f) of this section regarding authorized end-uses).
(5) Any retransfer, reexport, or change in end-use requiring such approval of the U.S. Government shall be made in accordance with § 123.9 of this subchapter.
(6) Defense articles excluded by paragraph (g) of this section or Supplement No. 1 to part 126 of this subchapter (e.g., USML Category XI (a)(3) electronically scanned array radar systems) that are embedded in a larger system that is eligible to ship under this section (e.g., a ship, an aircraft) must separately comply with any restrictions placed on that embedded defense article unless otherwise specified. A license or other authorization must be obtained from DDTC for the export, transfer, reexport, retransfer, or change in end-use of any such embedded defense article (for example, USML Category XI(a)(3) electronically scanned array radar systems that are excluded from this section by Supplement No. 1 to part 126 of this subchapter, Note 2 that are incorporated in an aircraft that is eligible to ship under this section continue to require separate authorization from DDTC for their export, transfer, reexport, or retransfer).
(7) A license or prior approval from DDTC is not required for a transfer, retransfer, or reexport of an exported defense article or defense service under this section, if:
(i) The transfer of defense articles or defense services is made by a member of the United States Community to United Kingdom Ministry of Defence (UK MOD) elements deployed outside the Territory of the United Kingdom and engaged in an authorized end-use (see paragraphs (e) and (f) of this section regarding authorized end-uses) using United Kingdom Armed Forces transmission channels or the provisions of this section;
(ii) The transfer of defense articles or defense services is made by a member of the United States Community to an Approved Community member (either United States or UK) that is operating in direct support of UK MOD elements deployed outside the Territory of the United Kingdom and engaged in an authorized end-use (see paragraphs (e) and (f) of this section regarding authorized end-uses) using United Kingdom Armed Forces transmission channels or the provisions of this section;
(iii) The reexport is made by a member of the United Kingdom Community to UK MOD elements deployed outside the Territory of the United Kingdom engaged in an authorized end-use (see paragraphs (e) and (f) of this section regarding authorized end-uses) using United Kingdom Armed Forces transmission channels or the provisions of this section;
(iv) The reexport is made by a member of the United Kingdom Community to an Approved Community member (either U.S. or UK) that is operating in direct support of UK MOD elements deployed outside the Territory of the United Kingdom engaged in an authorized end-use (see paragraphs (e) and (f) of this section regarding authorized end-uses) using United Kingdom Armed Forces transmission channels or the provisions of this section; or
(v) The defense article or defense service will be delivered to the UK MOD for an authorized end-use (see paragraphs (e) and (f) of this section regarding authorized end-uses); the UK MOD may deploy the item as necessary when conducting official business within or outside the Territory of the United Kingdom. The item must remain under the effective control of the UK MOD while deployed and access may not be provided to unauthorized third parties.
(8) U.S. persons registered, or required to be registered, pursuant to part 122 of this subchapter and members of the United Kingdom Community must immediately notify DDTC of any actual or proposed sale, retransfer, or reexport of a defense article or defense service on the U.S. Munitions List originally exported under this exemption to any of the countries listed in § 126.1 of this subchapter or any person acting on behalf of such countries, whether within or outside the United States. Any person knowing or having reason to know of such a proposed or actual sale, reexport, or retransfer shall submit such information in writing to the Office of Defense Trade Controls Compliance, Directorate of Defense Trade Controls.
(i) Transitions. (1) Any previous export of a defense article under a license or other approval of the U.S. Department of State remains subject to the conditions and limitations of the original license or authorization unless DDTC has approved in writing a transition to this section.
(2) If a U.S. exporter desires to transition from an existing license or other approval to the use of the provisions of this section, the following is required:
(i) The U.S. exporter must submit a written request to DDTC, which identifies the defense articles or defense services to be transitioned, the existing license(s) or other authorizations under which the defense articles or defense services were originally exported, and the Treaty-eligible end-use for which the defense articles or defense services will be used. Any license(s) filed with U.S. Customs and Border Protection should remain on file until the exporter has received approval from DDTC to retire the license(s) and transition to this section. When this approval is conveyed to U.S. Customs and Border Protection by DDTC, the license(s) will be returned to DDTC by U.S. Customs and Border Protection in accord with existing procedures for the return of expired licenses in § 123.22(c) of this subchapter.
(ii) Any license(s) not filed with U.S. Customs and Border Protection must be returned to DDTC with a letter citing approval by DDTC to transition to this section as the reason for returning the license(s).
(3) If a member of the United Kingdom Community desires to transition defense articles received under an existing license or other approval to the processes established under the Treaty, the United Kingdom Community member must submit a written request to DDTC, either directly or through the original U.S. exporter, which identifies the defense articles or defense services to be transitioned, the existing license(s) or other authorizations under which the defense articles or defense services were received, and the Treaty-eligible end-use (see paragraphs (e) and (f) of this section regarding authorized end-uses) for which the defense articles or defense services will be used. The defense article or defense service shall remain subject to the conditions and limitations of the existing license or other approval until the United Kingdom Community member has received approval from DDTC.
(4) Authorized exporters identified in paragraph (b)(2) of this section who have exported a defense article or defense service that has subsequently been placed on the list of exempted items in Supplement No. 1 to part 126 of this subchapter must review and adhere to the requirements in the relevant
(5) Any defense article or defense service transitioned from a license or other approval to treatment under this section must be marked in accordance with the requirements of paragraph (j) of this section.
(j) Marking of exports. (1) All defense articles and defense services exported or transitioned pursuant to the Defense Trade Cooperation Treaty between the United States and the United Kingdom and this section shall be marked or identified prior to movement as follows:
(i) For classified defense articles and defense services the standard marking or identification shall read “//CLASSIFICATION LEVEL USML//REL USA and GBR Treaty Community//.” For example, for defense articles classified SECRET, the marking or identification shall be “//SECRET USML//REL USA and GBR Treaty Community//.”
(ii) Unclassified defense articles and defense services exported under or transitioned pursuant to this section shall be handled while in the UK as “Restricted USML” and the standard marking or identification shall read “//RESTRICTED USML//REL USA and GBR Treaty Community//.”
(2) Where U.S.-origin defense articles are returned to a member of the United States Community identified in paragraph (b) of this section, any defense articles marked or identified pursuant to paragraph (j)(1)(ii) of this section as “//RESTRICTED USML//REL USA and GBR Treaty Community//” will be considered unclassified and the marking or identification shall be removed; and
(3) The standard marking and identification requirements are as follows:
(i) Defense articles (other than technical data) shall be individually labeled with the appropriate identification detailed in paragraphs (j)(1) and (j)(2) of this section; or, where such labeling is impracticable (e.g., propellants, chemicals), shall be accompanied by documentation (such as contracts or invoices) clearly associating the defense articles with the appropriate markings as detailed in paragraphs (j)(1)(i) and (j)(1)(ii) of this section;
(ii) Technical data (including data packages, technical papers, manuals, presentations, specifications, guides and reports), regardless of media or means of transmission (physical, oral, or electronic), shall be individually labeled with the appropriate identification detailed in paragraphs (j)(1) and (j)(2) of this section; or, where such labeling is impractical shall be accompanied by documentation (such as contracts or invoices) or verbal notification clearly associating the technical data with the appropriate markings as detailed in paragraphs (j)(1)(i) and (j)(1)(ii) of this section; and
(4) Defense services shall be accompanied by documentation (contracts, invoices, shipping bills, or bills of lading) clearly labeled with the appropriate identification detailed in paragraphs (j)(1) and (j)(2) of this section.
(5) The exporter shall incorporate the following statement as an integral part of the bill of lading and the invoice whenever defense articles are to be exported: “These U.S. Munitions List commodities are authorized by the U.S. Government under the U.S.-UK Defense Trade Cooperation Treaty for export only to United Kingdom for use in approved projects, programs or operations by members of the United Kingdom Community. They may not be retransferred or reexported or used outside of an approved project, program, or operation, either in their original form or after being incorporated into other end-items, without the prior written approval of the U.S. Department of State.”
(k) Intermediate consignees. (1) Unclassified exports under this section may only be handled by:
(i) U.S. intermediate consignees who are:
(A) Exporters registered with DDTC and eligible;
(B) Licensed customs brokers who are subject to background investigation and have passed a comprehensive examination administered by U.S. Customs and Border Protection; or
(C) Commercial air freight and surface shipment carriers, freight forwarders, or other parties not exempt from registration under § 129.3(b)(3) of this subchapter, that are identified at the time of export as being on the U.S. Department of Defense Civil Reserve Air Fleet (CRAF) list of approved air carriers, a link to which is available on the DDTC Web site; or
(ii) United Kingdom intermediate consignees who are:
(A) Members of the United Kingdom Community; or
(B) Freight forwarders, customs brokers, commercial air freight and surface shipment carriers, or other United Kingdom parties that are identified at the time of export as being on the list of Authorized United Kingdom Intermediate Consignees, which is available on the DDTC Web site.
(2) Classified exports must comply with the security requirements of the National Industrial Security Program Operating Manual (DoD 5220.22-M and supplements or successors).
(l) Records. (1) All exporters authorized pursuant to paragraph (b)(2) of this section who export defense articles or defense services pursuant to the Defense Trade Cooperation Treaty between the United States and the United Kingdom and this section shall maintain detailed records of their exports, imports, and transfers. Exporters shall also maintain detailed records of any reexports and retransfers approved or otherwise authorized by DDTC of defense articles or defense services subject to the Defense Trade Cooperation Treaty between the United States and the United Kingdom and this section. These records shall be maintained for a minimum of five years from the date of export, import, transfer, reexport, or retransfer and shall be made available upon request to DDTC or a person designated by DDTC (e.g., U.S. Department of State’s Bureau of Diplomatic Security) or U.S. Immigration and Customs Enforcement, or U.S. Customs and Border Protection. Records in an electronic format must be maintained using a process or system capable of reproducing all records on paper. Such records when displayed on a viewer, monitor, or reproduced on paper, must exhibit a high degree of legibility and readability. (For the purpose of this section, “legible” and “legibility” mean the quality of a letter or numeral that enables the observer to identify it positively and quickly to the exclusion of all other letters or numerals. “Readable” and “readability” means the quality of a group of letters or numerals being recognized as complete words or numbers.) These records shall consist of the following:
(i) Port of entry/exit;
(ii) Date of export/import;
(iii) Method of export/import;
(iv) Commodity code and description of the commodity, including technical data;
(v) Value of export;
(vi) Reference to this section and justification for export under the Treaty;
(vii) End-user/end-use;
(viii) Identification of all U.S. and foreign parties to the transaction;
(ix) How the export was marked;
(x) Security classification of the export;
(xi) All written correspondence with the U.S. Government on the export;
(xii) All information relating to political contributions, fees, or commissions furnished or obtained, offered, solicited, or agreed upon as outlined in paragraph (m) of this section;
(xiii) Purchase order or contract;
(xiv) Technical data actually exported;
(xv) The Internal Transaction Number for the Electronic Export Information filing using U.S. Customs and Border Protection’s electronic system(s);
(xvi) All shipping documentation (including, but not limited to the airway bill, bill of lading, packing list, delivery verification, and invoice); and
(xvii) Statement of Registration (Form DS-2032).
(2) Filing of export information. All exporters of defense articles under the Defense Trade Cooperation Treaty between the United States and the United Kingdom and this section must electronically file Electronic Export Information (EEI) using U.S. Customs and Border Protection’s electronic system(s), citing one of the four below referenced codes in the appropriate field in the EEI for each shipment:
(i) For exports in support of United States and United Kingdom combined military or counter-terrorism operations identify § 126.17(e)(1) (the name or an appropriate description of the operation shall be placed in the appropriate field in the EEI, as well);
(ii) For exports in support of United States and United Kingdom cooperative security and defense research, development, production, and support programs identify § 126.17(e)(2) (the name or an appropriate description of the program shall be placed in the appropriate field in the EEI, as well);
(iii) For exports in support of mutually determined specific security and defense projects where the Government of the United Kingdom is the end-user identify § 126.17(e)(3) (the name or an appropriate description of the project shall be placed in the appropriate field in the EEI, as well); or
(iv) For exports that will have a U.S. Government end-use identify § 126.17(e)(4) (the U.S. Government contract number or solicitation number (e.g., “U.S. Government contract number XXXXX”) shall be placed in the appropriate field in the EEI, as well). Such exports must meet the required export documentation and filing guidelines, including for defense services, of § 123.22(a), (b)(1), and (b)(2) of this subchapter.
(m) Fees and commissions. All exporters authorized pursuant to paragraph (b)(2) of this section shall, with respect to each export, transfer, reexport, or retransfer, pursuant to the Defense Trade Cooperation Treaty between the United States and the United Kingdom and this section, submit a statement to DDTC containing the information identified in § 130.10 of this subchapter relating to fees, commissions, and political contributions on contracts or other instruments valued in an amount of $500,000 or more.
(n) Violations and enforcement. (1) Exports, transfers, reexports, and retransfers that do not comply with the conditions prescribed in this section will constitute violations of the Arms Export Control Act and this subchapter, and are subject to all relevant criminal, civil, and administrative penalties (see § 127.1 of this subchapter), and may also be subject to penalty under other statutes or regulations.
(2) U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection officers may take appropriate action to ensure compliance with this section as to the export or the attempted export of any defense article or technical data, including the inspection of loading or unloading of any vessel, vehicle, or aircraft.
(3) U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection officers have the authority to investigate, detain, or seize any export or attempted export of defense articles or technical data that does not comply with this section or that is otherwise unlawful.
(4) DDTC or a person designated by DDTC (e.g., U.S. Department of State’s Bureau of Diplomatic Security), U.S. Immigration and Customs Enforcement, or U.S. Customs and Border Protection may require the production of documents and information relating to any actual or attempted export, transfer, reexport, or retransfer pursuant to this section. Any foreign person refusing to provide such records within a reasonable period of time shall be suspended from the United Kingdom Community and ineligible to receive defense articles or defense services pursuant to the exemption under this section or otherwise.
(o) Procedures for legislative notification. (1) Exports pursuant to the Defense Trade Cooperation Treaty between the United States and the United Kingdom and this section by any person identified in paragraph (b)(2) of this section shall not take place until 30 days after DDTC has acknowledged receipt of a written notification from the exporter notifying the Department of State if the export involves one or more of the following:
(i) A contract or other instrument for the export of major defense equipment in the amount of $25,000,000 or more, or for defense articles and defense services in the amount of $100,000,000 or more;
(ii) A contract for the export of firearms controlled under Category I of the U.S. Munitions List of the International Traffic in Arms Regulations in an amount of $1,000,000 or more;
(iii) A contract, regardless of value, for the manufacturing abroad of any item of significant military equipment (see § 120.36 of this subchapter); or
(iv) An amended contract that meets the requirements of paragraphs (o)(1)(i) through (o)(1)(iii) of this section.
(2) The written notification required in paragraph (o)(1) of this section shall indicate the item/model number, general item description, U.S. Munitions List category, value, and quantity of items to be exported pursuant to the Defense Trade Cooperation Treaty between the United States and the United Kingdom and this section, and shall be accompanied by the following additional information:
(i) The information identified in § 130.10 and § 130.11 of this subchapter;
(ii) A statement regarding whether any offset agreement is final to be entered into in connection with the export and a description of any such offset agreement;
(iii) A copy of the signed contract; and
(iv) If the notification is for paragraph (o)(1)(ii) of this section, a statement of what will happen to the weapons in their inventory (for example, whether the current inventory will be sold, reassigned to another service branch, destroyed, etc.).
(3) The Department of State will notify the Congress of exports that meet the requirements of paragraph (o)(1) of this section.
§ 126.18 Exemptions regarding intra-company, intra-organization, and intra-governmental transfers to employees who are dual nationals or third-country nationals.
(a) Subject to the requirements of paragraphs (b) and (c) of this section and notwithstanding any other provisions of this part, and where the exemption provided in paragraph (d) of this section cannot be implemented because of applicable domestic laws, no approval is needed from the Directorate of Defense Trade Controls (DDTC) for the transfer of unclassified defense articles, which includes technical data, to or within a foreign business entity, foreign governmental entity, or international organization that is an authorized end-user or consignee (including approved sub-licensees) for those defense articles, including the transfer to dual nationals or third-country nationals who are bona fide regular employees, directly employed by the foreign consignee or end-user. The transfer of defense articles pursuant to this section must take place completely within the physical territory of the country where the end-user is located, where the governmental entity or international organization conducts official business, or where the consignee operates, and be within the scope of an approved export license, other export authorization, or license exemption.
(b) The provisions of § 127.1(b) of this subchapter are applicable to any transfer under this section. As a condition of transferring to foreign person employees described in paragraph (a) of this section any defense article under this provision, any foreign business entity, foreign governmental entity, or international organization, as a “foreign person” within the meaning of § 120.63 of this subchapter, that receives a defense article, must have effective procedures to prevent diversion to destinations, entities, or for purposes other than those authorized by the applicable export license or other authorization (e.g., written approval or exemption) in order to comply with the applicable provisions of the Arms Export Control Act and the ITAR.
(c) The end-user or consignee may satisfy the condition in paragraph (b) of this section, prior to transferring defense articles, by requiring:
(1) A security clearance approved by the host nation government for its employees, or
(2) The end-user or consignee to have in place a process to screen its employees and to have executed a Non-Disclosure Agreement that provides assurances that the employee will not transfer any defense articles to persons or entities unless specifically authorized by the consignee or end-user. The end-user or consignee must screen its employees for substantive contacts with restricted or prohibited countries listed in § 126.1. Substantive contacts include regular travel to such countries, recent or continuing contact with agents, brokers, and nationals of such countries, continued demonstrated allegiance to such countries, maintenance of business relationships with persons from such countries, maintenance of a residence in such countries, receiving salary or other continuing monetary compensation from such countries, or acts otherwise indicating a risk of diversion. Although nationality does not, in and of itself, prohibit access to defense articles, an employee who has substantive contacts with persons from countries listed in § 126.1(d)(1) shall be presumed to raise a risk of diversion, unless DDTC determines otherwise. End-users and consignees must maintain a technology security/clearance plan that includes procedures for screening employees for such substantive contacts and maintain records of such screening for five years. The technology security/clearance plan and screening records shall be made available to DDTC or its agents for civil and criminal law enforcement purposes upon request.
(d) Notwithstanding any other provisions of this subchapter, no approval is needed from the Directorate of Defense Trade Controls (DDTC) for the reexport of unclassified defense articles or defense services to individuals who are dual national or third-country national employees of a foreign business entity, foreign governmental entity, or international organization, that is an authorized end-user, foreign signatory, or consignee (including approved sub-licensees) for those defense articles or defense services, when such individuals are:
(1) Regular employees of the foreign business entity, foreign governmental entity, or international organization;
(2) Nationals exclusively of countries that are members of NATO, the European Union, Australia, Japan, New Zealand, or Switzerland;
(3) Within the physical territories of the countries listed in paragraph (d)(2) of this section or the United States during the reexport;
(4) Signatory to a Non-Disclosure Agreement, unless their employer is a signatory or sublicensee to an agreement under § 124.1 authorizing those defense articles or defense services; and
(5) Not the recipient of any permanent transfer of hardware.
Supplement No. 1 to Part 126
[Supplement No. 1* – *An “X” in the chart indicates that the item is excluded from use under the exemption referenced in the top of the column. An item excluded in any one row is excluded regardless of whether other rows may contain a description that would include the item.]
| USML Category | Exclusion | (CA) § 126.5 | (AS) § 126.16 | (UK) § 126.17 |
|---|---|---|---|---|
| I-XXI | Classified defense articles and services. | X | X | X |
| I-XXI | Defense articles listed in the Missile Technology Control Regime (MTCR) Annex | X | X | X |
| I-XXI | U.S. origin defense articles and services used for marketing purposes and not previously licensed for export in accordance with this subchapter | X | X | |
| I-XXI | Defense services for or technical data related to defense articles identified in this supplement as excluded from the Canadian exemption | X | ||
| I-XXI | Any transaction involving the export of defense articles and services for which congressional notification is required in accordance with § 123.15 and § 124.11 of this subchapter. | X | ||
| I-XXI | U.S. origin defense articles and services specific to developmental systems that have not obtained written Milestone B approval from the U.S. Department of Defense milestone approval authority, unless such export is pursuant to a written solicitation or contract issued or awarded by the U.S. Department of Defense for an end-use identified in paragraph (e)(1), (e)(2), or (e)(4) of § 126.16 or § 126.17 of this subchapter and is consistent with other exclusions of this supplement | X | X | |
| I-XXI | Nuclear weapons strategic delivery systems and all components, parts, accessories, and attachments specifically designed for such systems and associated equipment | X | ||
| I-XXI | Defense articles and services specific to the existence or method of compliance with anti-tamper measures, where such measures are readily identifiable, made at originating Government direction | X | X | |
| I-XXI | Defense articles and services specific to reduced observables or counter low observables in any part of the spectrum. | X | X | |
| I-XXI | Defense articles and services specific to sensor fusion beyond that required for display or identification correlation. | X | X | |
| I-XXI | Defense articles and services specific to the automatic target acquisition or recognition and cueing of multiple autonomous unmanned systems | X | X | |
| I-XXI | Nuclear power generating equipment or propulsion equipment (e.g., nuclear reactors), specifically designed for military use and components therefor, specifically designed for military use. | X | ||
| I-XXI | Libraries (parametric technical databases) specially designed for military use with equipment controlled on the USML. | X | ||
| I-XXI | Defense services or technical data specific to applied research as defined in § 120.43(i) of this subchapter, design methodology as defined in § 120.43(c) of this subchapter, engineering analysis as defined in § 120.43(d) of this subchapter, or manufacturing know-how as defined in § 120.43(e) of this subchapter. | X | ||
| I-XXI | Defense services other than those required to prepare a quote or bid proposal in response to a written request from a department or agency of the United States Federal Government or from a Canadian Federal, Provincial, or Territorial Government; or defense services other than those required to produce, design, assemble, maintain or service a defense article for use by a registered U.S. company, or a U.S. Federal Government Program, or for end-use in a Canadian Federal, Provincial, or Territorial Government Program. | X | ||
| I | Firearms, close assault weapons, and combat shotguns | X | ||
| II(k) | Software source code related to USML Category II(c), II(d), or II(i). | X | X | |
| II(k) | Manufacturing know-how related to USML Category II(d). | X | X | X |
| III | Ammunition for firearms, close assault weapons, and combat shotguns listed in USML Category I | X | ||
| III | Defense articles and services specific to ammunition and fuse setting devices for guns and armament controlled in USML Category II | X | ||
| III(e) | Manufacturing know-how related to USML Category III(d)(1) or III(d)(2) and their specially designed components. | X | X | X |
| III(e) | Software source code related to USML Category III(d)(1) or III(d)(2). | X | X | |
| IV | Defense articles and services specific to man-portable air defense systems (MANPADS). | X | X | X |
| IV | Defense articles and services specific to rockets, designed or modified for non-military applications that do not have a range of 300 km ( | X | ||
| IV | Defense articles and services specific to torpedoes | X | X | |
| IV | Defense articles and services specific to anti-personnel landmines. | X | X | X |
| IV | Defense articles and services specific to cluster munitions | X | X | X |
| IV(i) | Software source code related to USML Category IV(a), IV(b), IV(c), or IV(g). | X | X | |
| IV(i) | Manufacturing know-how related to USML Category IV(a), IV(b), IV(d), or IV(g) and their specially designed components. | X | X | X |
| V | The following energetic materials and related substances: | X | ||
| a. TATB (triaminotrinitrobenzene) (CAS 3058-38-6); | ||||
| b. Explosives controlled in USML Category V(a)(38); | ||||
| c. Iron powder (CAS 7439-89-6) with particle size of 3 micrometers or less produced by reduction of iron oxide with hydrogen; | ||||
| d. BOBBA-8 (bis(2-methylaziridinyl)2-(2-hydroxypropanoxy) propylamino phosphine oxide), and other MAPO derivatives; | ||||
| e. N-methyl-p-nitroaniline (CAS 100-15-2); or | ||||
| f. Trinitrophenylmethylnitramine (tetryl) (CAS 479-45-8) | ||||
| V(a)(13) | ANF or ANAzF as described in USML Category V(a)(13)(iii) and (iv) | X | ||
| V(a)(23) | Difluoraminated derivative of RDX as described in USML Category V(a)(23)(iii) | X | ||
| V(c)(7) | Pyrotechnics and pyrophorics specifically formulated for military purposes to enhance or control radiated energy in any part of the IR spectrum | X | ||
| V(d)(3) | Bis-2, 2-dinitropropylnitrate (BDNPN) | X | ||
| V(i) | Developmental explosives, propellants, pyrotechnics, fuels, oxidizers, binders, additives, or precursors therefor, funded by the Department of Defense via contract or other funding authorization in accordance with notes 1 to 3 for USML Category V(i). This exclusion does not apply if such export is pursuant to a written solicitation or contract issued or awarded by the U.S. Department of Defense for an end-use identified in paragraph (e)(1), (e)(2), or (e)(4) of § 126.16 or § 126.17 of this subchapter and is consistent with other exclusions of this supplement | X | X | |
| VI | Defense articles and services specific to cryogenic equipment, and specially designed components or accessories therefor, specially designed or configured to be installed in a vehicle for military ground, marine, airborne or space applications, capable of operating while in motion and of producing or maintaining temperatures below 103 K (−170 °C) | X | ||
| VI | Defense articles and services specific to superconductive electrical equipment (rotating machinery and transformers) specially designed or configured to be installed in a vehicle for military ground, marine, airborne, or space applications and capable of operating while in motion. This, however, does not include direct current hybrid homopolar generators which have single-pole normal metal armatures that rotate in a magnetic field produced by superconducting windings, provided those windings are the only superconducting component in the generator | X | ||
| VI | Defense articles and services specific to naval technology and systems relating to acoustic spectrum control and awareness. | X | X | |
| VI(a) | Nuclear powered vessels. | X | X | X |
| VI(e) | Defense articles and services specific to naval nuclear propulsion equipment. | X | X | X |
| VI(g) | Software source code related to USML Category VI(a) or VI(c). | X | X | |
| VII | Defense articles and services specific to cryogenic equipment, and specially designed components or accessories therefor, specially designed or configured to be installed in a vehicle for military ground, marine, airborne or space applications, capable of operating while in motion and of producing or maintaining temperatures below 103 K (−170 °C) | X | ||
| VII | Defense articles and services specific to superconductive electrical equipment (rotating machinery and transformers) specially designed or configured to be installed in a vehicle for military ground, marine, airborne, or space applications and capable of operating while in motion. This, however, does not include direct current hybrid homopolar generators which have single-pole normal metal armatures that rotate in a magnetic field produced by superconducting windings, provided those windings are the only superconducting component in the generator | X | ||
| VIII | Defense articles and services specific to cryogenic equipment, and specially designed components and accessories therefor, specially designed or configured to be installed in a vehicle for military ground, marine, airborne or space applications, capable of operating while in motion and of producing or maintaining temperatures below 103 K (−170 °C) | X | ||
| VIII | Defense articles and services specific to superconductive electrical equipment (rotating machinery and transformers) specially designed or configured to be installed in a vehicle for military ground, marine, airborne, or space applications and capable of operating while in motion. This, however, does not include direct current hybrid homopolar generators which have single-pole normal metal armatures that rotate in a magnetic field produced by superconducting windings, provided those windings are the only superconducting component in the generator | X | ||
| VIII(a) | All USML Category VIII(a) items. | X | ||
| VIII(f) | Developmental aircraft parts, components, accessories, and attachments identified in USML Category VIII(f) | X | ||
| VIII(i) | Manufacturing know-how related to USML Category VIII(a) or VIII(e), and specially designed parts or components therefor. | X | X | X |
| VIII(i) | Software source code related to USML Category VIII(a) or VIII(e). | X | X | |
| IX | Training or simulation equipment for Man Portable Air Defense Systems (MANPADS). | X | X | |
| IX(e) | Software source code related to USML Category IX(a) or IX(b). | X | X | |
| IX(e) | Software that is both specifically designed or modified for military use and specifically designed or modified for modeling or simulating military operational scenarios | X | ||
| X(e) | Manufacturing know-how related to USML Category X(a)(1) or X(a)(2), and specially designed components therefor. | X | X | X |
| XI(a) XI(c), XI(d) | Defense articles and services specific to countermeasures and counter- countermeasures | X | X | |
| XI(a) | High Frequency and Phased Array Microwave Radar systems, with capabilities such as search, acquisition, tracking, moving target indication, and imaging radar systems. | X | ||
| XI(a), XI(c), XI(d) | Defense articles and services specific to naval technology and systems relating to acoustic spectrum control and awareness. | X | X | |
| XI(a), XI(c), XI(d) | Defense articles and services specific to USML Category XI(b) (e.g., communications security (COMSEC) and TEMPEST) | X | X | |
| XI(d) | Software source code related to USML Category XI(a). | X | X | |
| XI(d) | Manufacturing know-how related to USML Category XI(a)(3) or XI(a)(4), and specially designed components therefor. | X | X | X |
| XII | Defense articles and services specific to countermeasures and counter- countermeasures. | X | X | |
| XII | Defense articles and services specific to USML Category XII(c) articles, except any 1st- and 2nd-generation image intensification tubes and 1st- and 2nd-generation image intensification night sighting equipment. End-items in USML Category XII(c) and related technical data limited to basic operations, maintenance, and training information as authorized under the exemption in § 125.4(b)(5) of this subchapter may be exported directly to a Canadian Government entity ( | X | ||
| XII | Technical data or defense services for night vision equipment beyond basic operations, maintenance, and training data. However, the AS and UK Treaty exemptions apply when such export is pursuant to a written solicitation or contract issued or awarded by the U.S. Department of Defense for an end-use identified in paragraph (e)(1), (e)(2), or (e)(4) of § 126.16 or § 126.17 of this subchapter and is consistent with other exclusions of this supplement | X | X | X |
| XII(f) | Manufacturing know-how related to USML Category XII(d) and specially designed components therefor. | X | X | X |
| XII(f) | Software source code related to USML Category XII(a), XII(b), XII(c), or XII(d). | X | X | |
| XIII(b) | Defense articles and services specific to USML Category XIII(b) (Military Information Security Assurance Systems, cryptographic devices, software, and components) | X | X | |
| XIII(d) | Carbon/carbon billets and preforms which are reinforced in three or more dimensional planes, specifically designed, developed, modified, configured or adapted for defense articles | X | ||
| XIII(e) | Defense articles and services specific to armored plate manufactured to comply with a military standard or specification or suitable for military use. | X | ||
| XIII(g) | Defense articles and services related to concealment and deception equipment and materials | X | ||
| XIII(h) | Energy conversion devices other than fuel cells | X | ||
| XIII(j) | Defense articles and services related to hardware associated with the measurement or modification of system signatures for detection of defense articles as described in Note 2 | X | X | |
| XIII(l) | Software source code related to USML Category XIII(a). | X | X | |
| XIV | Defense articles and services related to toxicological agents, including chemical agents, biological agents, and associated equipment | X | X | |
| XIV(a), XIV(b), XIV(d), XIV(e), XIV(f) | Chemical agents listed in USML Category XIV(a), (d) and (e), biological agents and biologically derived substances in USML Category XIV(b), and equipment listed in USML Category XIV(f) for dissemination of the chemical agents and biological agents listed in USML Category XIV(a), (b), (d), and (e) | X | ||
| XV(a) | Defense articles and services specific to spacecraft/satellites. However, the Canadian exemption may be used for commercial communications satellites that have no other type of payload | X | X | X |
| XV(b) | Defense articles and services specific to ground control stations for spacecraft telemetry, tracking, and control. Defense articles and services are not excluded under this entry if they do not control the spacecraft. Receivers for receiving satellite transmissions are also not excluded under this entry | X | X | |
| XV(c) | Defense articles and services specific to GPS/PPS security modules | X | X | |
| XV(c) | Defense articles controlled in USML Category XV(c) except end-items for end-use by the Federal Government of Canada exported directly or indirectly through a Canadian-registered person | X | ||
| XV(e) | Anti-jam systems with the ability to respond to incoming interference by adaptively reducing antenna gain (nulling) in the direction of the interference | X | ||
| XV(e)(1) | Antennas having any of the following: | X | ||
| a. Aperture (overall dimension of the radiating portions of the antenna) greater than 30 feet; | ||||
| b. All sidelobes less than or equal to −35 dB relative to the peak of the main beam; or | ||||
| c. Designed, modified, or configured to provide coverage area on the surface of the earth less than 200 nautical miles in diameter, where “coverage area” is defined as that area on the surface of the earth that is illuminated by the main beam width of the antenna (which is the angular distance between half power points of the beam) | ||||
| XV(e)(12) | Propulsion systems which permit acceleration of the satellite on-orbit ( | X | ||
| XV(e)(10) | Attitude determination and control systems designed to provide spacecraft pointing determination and control or payload pointing system control better than 0.02 degrees per axis | X | ||
| XV(e) | All parts, components, accessories, attachments, equipment, or systems for USML Category XV(a) items, except when specially designed for use in commercial communications satellites | X | ||
| XV(e) | Defense articles and services specific to spacecraft, ground control station systems (only for spacecraft control as controlled in USML Category XV(b)), subsystems, components, parts, accessories, attachments, and associated equipment controlled in Category XV | X | X | |
| XV(f) | Technical data and defense services directly related to the other defense articles excluded from the exemptions for USML Category XV | X | X | X |
| XVI | Defense articles and services specific to design and testing of nuclear weapons | X | X | X |
| XVII | Classified articles, and technical data and defense services relating thereto, not elsewhere enumerated. | X | X | X |
| XVIII | Defense articles and services specific to directed energy weapon systems | X | X | |
| XIX(e), XIX(f)(1), XIX(f)(2), XIX(g) | Defense articles and services specific to gas turbine engine hot section components and to Full Authority Digital Engine Control Systems (FADEC) or Digital Electronic Engine Controls (DEEC). | X | X | |
| XIX(g) | Technical data and defense services for gas turbine engine hot sections. (This does not include hardware). | X | X | X |
| XX | Defense articles and services related to submersible vessels, oceanographic, and associated equipment | X | X | X |
| XX | Defense articles and services specific to naval technology and systems relating to acoustic spectrum control and awareness. | X | X | |
| XX | Defense articles specific to cryogenic equipment, and specially designed components or accessories therefor, specially designed or configured to be installed in a vehicle for military ground, marine, airborne or space applications, capable of operating while in motion and of producing or maintaining temperatures below 103 K (−170 °C) | X | ||
| XX | Defense articles specific to superconductive electrical equipment (rotating machinery and transformers) specially designed or configured to be installed in a vehicle for military ground, marine, airborne, or space applications and capable of operating while in motion. This, however, does not include direct current hybrid homopolar generators that have single-pole normal metal armatures which rotate in a magnetic field produced by superconducting windings, provided those windings are the only superconducting component in the generator | X | ||
| XX(a) | Nuclear powered vessels. | X | X | X |
| XX(b) | Defense articles and services specific to naval nuclear propulsion equipment. | X | X | X |
| XX(c) | Defense articles and services specific to submarine combat control systems | X | X | |
| XX(d) | Software source code related to USML Category XX(a). | X | X | |
| XXI | Articles, and technical data and defense services relating thereto, not otherwise enumerated on the USML, but placed in this category by the Director, Office of Defense Trade Controls Policy | X | X | X |
(a) Signature reduction (radio frequency (RF), infrared (IR), Electro-Optical, visual, ultraviolet (UV), acoustic, magnetic, RF emissions) of defense platforms, including systems, subsystems, components, materials (including dual-purpose materials used for Electromagnetic Interference (EM) reduction), technologies, and signature prediction, test and measurement equipment and software, and material transmissivity/reflectivity prediction codes and optimization software.
(b) Electronically scanned array radar, high power radars, radar processing algorithms, periscope-mounted radar systems (PATRIOT), LADAR, multistatic and IR focal plane array-based sensors, to include systems, subsystems, components, materials, and technologies.
(a) IR countermeasures;
(b) Classified techniques and capabilities;
(c) Exports for precision radio frequency location that directly or indirectly supports fire control and is used for situation awareness, target identification, target acquisition, and weapons targeting and Radio Direction Finding (RDF) capabilities. Precision RF location is defined as angle of arrival accuracy of less than five degrees (RMS) and RF emitter location of less than ten percent range error;
(d) Providing the capability to reprogram; and
(e) Acoustics (including underwater), active and passive countermeasures, and counter-countermeasures
The excluded defense articles include constructions of metallic or non-metallic materials or combinations thereof specially designed to provide protection for military systems. The phrase “suitable for military use” applies to any articles or materials which have been tested to level IIIA or above IAW NIJ standard 0108.01 or comparable national standard. This exclusion does not include military helmets, body armor, or other protective garments which may be exported IAW the terms of the AS or UK Treaty.
(a) The Canadian contractor and subcontractor must certify, in writing, to the U.S. exporter that the technical data and defense services being exported will be used only for an activity identified in Supplement No. 1 to part 126 of this subchapter and in accordance with § 126.5 of this subchapter; and
(b) A written arrangement between the U.S. exporter and the Canadian recipient must:
(1) Limit delivery of the defense articles being produced directly to an identified manufacturer in the United States registered in accordance with part 122 of this subchapter; a department or agency of the United States Federal Government; a Canadian-registered person authorized in writing to manufacture defense articles by and for the Government of Canada; a Canadian Federal, Provincial, or Territorial Government;
(2) Prohibit the disclosure of the technical data to any other contractor or subcontractor who is not a Canadian-registered person;
(3) Provide that any subcontract contain all the limitations of § 126.5 of this subchapter;
(4) Require that the Canadian contractor, including subcontractors, destroy or return to the U.S. exporter in the United States all of the technical data exported pursuant to the contract or purchase order upon fulfillment of the contract, unless for use by a Canadian or United States Government entity that requires in writing the technical data be maintained. The U.S. exporter must be provided written certification that the technical data is being retained or destroyed; and
(5) Include a clause requiring that all documentation created from U.S. origin technical data contain the statement that, “This document contains technical data, the use of which is restricted by the U.S. Arms Export Control Act. This data has been provided in accordance with, and is subject to, the limitations specified in § 126.5 of the International Traffic in Arms Regulations (ITAR). By accepting this data, the consignee agrees to honor the requirements of the ITAR.”
(c) The U.S. exporter must provide the Directorate of Defense Trade Controls a semi-annual report regarding all of their on-going activities authorized under § 126.5 of this subchapter. The report shall include the article(s) being produced; the end-user(s); the end-item into which the product is to be incorporated; the intended end-use of the product; and the names and addresses of all the Canadian contractors and subcontractors.
As used in this exclusion, “anti-personnel landmine” means any mine placed under, on, or near the ground or other surface area, or delivered by artillery, rocket, mortar, or similar means or dropped from an aircraft and which is designed to be detonated or exploded by the presence, proximity, or contact of a person; any device or material which is designed, constructed, or adapted to kill or injure and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act; any manually-emplaced munition or device designed to kill, injure, or damage and which is actuated by remote control or automatically after a lapse of time.
PART 127 – VIOLATIONS AND PENALTIES
§ 127.1 Violations.
(a) Without first obtaining the required license or other written approval from the Directorate of Defense Trade Controls, it is unlawful:
(1) To export or attempt to export from the United States any defense article or technical data or to furnish or attempt to furnish any defense service for which a license or written approval is required by this subchapter;
(2) To reexport or retransfer or attempt to reexport or retransfer any defense article, technical data, or defense service from one foreign end-user, end-use, or destination to another foreign end-user, end-use, or destination for which a license or written approval is required by this subchapter, including, as specified in § 126.16(h) and § 126.17(h) of this subchapter, any defense article, technical data, or defense service that was exported from the United States without a license pursuant to any exemption under this subchapter;
(3) To import or attempt to import any defense article whenever a license is required by this subchapter;
(4) To conspire to export, import, reexport, retransfer, furnish or cause to be exported, imported, reexported, retransferred or furnished, any defense article, technical data, or defense service for which a license or written approval is required by this subchapter; or
(5) To possess or attempt to possess any defense article with intent to export or transfer such defense article in violation of 22 U.S.C. 2778 and 2779, or any regulation, license, approval, or order issued thereunder.
(b) It is unlawful:
(1) To violate any of the terms or conditions of a license or approval granted pursuant to this subchapter, any exemption contained in this subchapter, or any rule or regulation contained in this subchapter;
(2) To engage in the business of brokering activities for which registration and a license or written approval is required by this subchapter without first registering or obtaining the required license or written approval from the Directorate of Defense Trade Controls. For the purposes of this subchapter, engaging in the business of brokering activities requires only one occasion of engaging in an activity as reflected in § 129.2(b) of this subchapter.
(3) To engage in the United States in the business of either manufacturing or exporting defense articles or furnishing defense services without complying with the registration requirements. For the purposes of this subchapter, engaging in the business of manufacturing or exporting defense articles or furnishing defense services requires only one occasion of manufacturing or exporting a defense article or furnishing a defense service.
(c) Any person who is granted a license or other approval or acts pursuant to an exemption under this subchapter is responsible for the acts of employees, agents, brokers, and all authorized persons to whom possession of the defense article, which includes technical data, has been entrusted regarding the operation, use, possession, transportation, and handling of such defense article abroad. All persons abroad subject to U.S. jurisdiction who obtain custody of a defense article exported from the United States or produced under an agreement described in part 124 of this subchapter, and regardless of the number of intermediate transfers, are bound by the regulations of this subchapter in the same manner and to the same extent as the original owner or transferor.
(d) A person who is ineligible pursuant to § 120.16(c) of this subchapter, or a person with knowledge that another person is ineligible pursuant to § 120.16(c) of this subchapter, may not, directly or indirectly, in any manner or capacity, without prior disclosure of the facts to and written authorization from the Directorate of Defense Trade Controls:
(1) Apply for, obtain, or use any export control document as defined in § 127.2(b) for such ineligible person; or
(2) Order, buy, receive, use, sell, deliver, store, dispose of, forward, transport, finance, or otherwise service or participate in any manner in any transaction subject to this subchapter that may involve any defense article, which includes technical data, defense services, or brokering activities, where such ineligible person may obtain any benefit therefrom or have any direct or indirect interest therein.
(e) No person may knowingly or willfully attempt, solicit, cause, or aid, abet, counsel, demand, induce, procure, or permit the commission of any act prohibited by, or the omission of any act required by 22 U.S.C. 2778, 22 U.S.C. 2779, or any regulation, license, approval, or order issued thereunder.
§ 127.2 Misrepresentation and omission of facts.
(a) It is unlawful to use or attempt to use any export or temporary import control document containing a false statement or misrepresenting or omitting a material fact for the purpose of exporting, transferring, reexporting, retransferring, obtaining, or furnishing any defense article, technical data, or defense service. Any false statement, misrepresentation, or omission of material fact in an export or temporary import control document will be considered as made in a matter within the jurisdiction of a department or agency of the United States for the purposes of 18 U.S.C. 1001, 22 U.S.C. 2778, and 22 U.S.C. 2779.
(b) For the purpose of this subchapter, export or temporary import control documents include the following:
(1) An application for a permanent export, reexport, retransfer, or a temporary import license and supporting documents.
(2) Electronic Export Information filing.
(3) Invoice.
(4) Declaration of destination.
(5) Delivery verification.
(6) Application for temporary export.
(7) Application for registration.
(8) Purchase order.
(9) Foreign import certificate.
(10) Bill-of-lading.
(11) Airway bill.
(12) Nontransfer and use certificate.
(13) Any other document used in the regulation or control of a defense article, defense service, or brokering activity regulated by this subchapter.
(14) Any other shipping document that has information related to the export of the defense article or defense service.
§ 127.3 Penalties for violations.
Any person who willfully:
(a) Violates any provision of § 38 or § 39 of the Arms Export Control Act (22 U.S.C. 2778 and 2779) or any rule or regulation issued under either § 38 or § 39 of the Act, or any undertaking specifically required by part 124 of this subchapter; or
(b) In a registration, license application, or report required by § 38 or § 39 of the Arms Export Control Act (22 U.S.C. 2778 and 2779) or by any rule or regulation issued under either section, makes any untrue statement of a material fact or omits a material fact required to be stated therein or necessary to make the statements therein not misleading, shall upon conviction be subject to a fine or imprisonment, or both, as prescribed by 22 U.S.C. 2778(c).
§ 127.4 Authority of U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection officers.
(a) U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection officers may take appropriate action to ensure observance of this subchapter as to the export or the attempted export or the temporary import of any defense article or technical data, including the inspection of loading or unloading of any vessel, vehicle, or aircraft. This applies whether the export is authorized by license or by written approval issued under this subchapter or by exemption.
(b) U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection officers have the authority to investigate, detain or seize any export or attempted export of defense articles or technical data contrary to this subchapter.
(c) Upon the presentation to a U.S. Customs and Border Protection Officer of a license or written approval, or claim of an exemption, authorizing the export of any defense article, the customs officer may require the production of other relevant documents and information relating to the final export. This includes an invoice, order, packing list, shipping document, correspondence, instructions, and the documents otherwise required by the U.S. Customs and Border Protection or U.S. Immigration and Customs Enforcement.
(d) If an exemption under this subchapter is used or claimed to export, transfer, reexport or retransfer, furnish, or obtain a defense article, technical data, or defense service, law enforcement officers may rely upon the authorities noted, additional authority identified in the language of the exemption, and any other lawful means or authorities to investigate such a matter.
§ 127.5 Authority of the Defense Security Service.
In the case of exports involving classified technical data or defense articles, the Defense Security Service may take appropriate action to ensure compliance with the Department of Defense National Industrial Security Program Operating Manual (unless such requirements are in direct conflict with guidance provided by the Directorate of Defense Trade Controls, in which case the latter guidance must be followed). Upon a request to the Defense Security Service regarding the export of any classified defense article or technical data, the Defense Security Service official or a designated government transmittal authority may require the production of other relevant documents and information relating to the proposed export.
§ 127.6 Seizure and forfeiture in attempts at illegal exports.
(a) An attempt to export from the United States any defense articles in violation of the provisions of this subchapter constitutes an offense punishable under section 401 of title 22 of the United States Code. Whenever it is known or there is probable cause to believe that any defense article is intended to be or is being or has been exported or removed from the United States in violation of law, such article and any vessel, vehicle or aircraft involved in such attempt is subject to seizure, forfeiture and disposition as provided in section 401 of title 22 of the United States Code.
(b) Similarly, an attempt to violate any of the conditions under which a temporary export or temporary import license was issued pursuant to this subchapter or to violate the requirements of § 123.2 of this subchapter also constitutes an offense punishable under section 401 of title 22 of the United States Code, and such article, together with any vessel, vehicle or aircraft involved in any such attempt is subject to seizure, forfeiture, and disposition as provided in section 401 of title 22 of the United States Code.
§ 127.7 Debarment.
(a) Administrative debarment. In implementing section 38 of the Arms Export Control Act, the Assistant Secretary of State for Political-Military Affairs may debar and thereby prohibit any person from participating directly or indirectly in any activities that are subject to this subchapter for any of the reasons listed below. Any such prohibition is referred to as an administrative debarment for purposes of this subchapter. The Assistant Secretary of State for Political-Military Affairs shall determine the appropriate period of time for administrative debarment, which generally shall be for a period of three years. Reinstatement is not automatic, however, and in all cases the debarred persons must submit a request for reinstatement and be approved for reinstatement before engaging in any activities subject to this subchapter. (See part 128 of this subchapter for administrative procedures.)
(b) Statutory debarment. It is the policy of the Department of State not to consider applications for licenses or requests for approvals involving any person who has been convicted of violating the Arms Export Control Act or convicted of conspiracy to violate that Act for a three year period following conviction and to prohibit that person from participating directly or indirectly in any activities that are subject to this subchapter. Such individuals shall be notified in writing that they are statutorily debarred pursuant to this policy. A list of persons who have been convicted of such offenses and debarred for this reason shall be published periodically in the
(c) Grounds. (1) The basis for statutory debarment, as described in paragraph (b) of this section, is any conviction for violating the Arms Export Control Act (see § 127.3) or any conspiracy to violate the Arms Export Control Act.
(2) The basis for administrative debarment, as described in paragraph (a) of this section and in part 128 of this subchapter, is any violation of 22 U.S.C. 2778 or any rule or regulation issued thereunder when such a violation is of such a character as to provide a reasonable basis for the Directorate of Defense Trade Controls to believe that the violator cannot be relied upon to comply with the statute or these rules or regulations in the future, and when such violation is established in accordance with part 128 of this subchapter.
(d) Appeals. Any person who is ineligible pursuant to paragraph (b) of this section may appeal to the Under Secretary of State for Arms Control and International Security for reconsideration of the ineligibility determination. The procedures specified in § 128.13 of this subchapter will be used in submitting a reconsideration appeal.
§ 127.8 [Reserved]
§ 127.9 Applicability of orders.
For the purpose of preventing evasion, orders of the Assistant Secretary of State for Political-Military Affairs debarring a person under § 127.7 may be made applicable to any other person who may then or thereafter (during the term of the order) be related to the debarred person by affiliation, ownership, control, position of responsibility, or other commercial connection. Appropriate notice and opportunity to respond to the basis for the suspension will be given.
§ 127.10 Civil penalty.
(a)(1) The Assistant Secretary of State for Political-Military Affairs is authorized to impose a civil penalty, as follows:
(i) For each violation of 22 U.S.C. 2778, an amount not to exceed the greater of $1,200,000 or the amount that is twice the value of the transaction that is the basis of the violation with respect to which the penalty is imposed;
(ii) For each violation of 22 U.S.C. 2779a, an amount not to exceed $996,685, or five times the amount of the prohibited incentive payment, whichever is greater; and
(iii) For each violation of 22 U.S.C. 2780, an amount not to exceed $1,186,338.
(2) The civil penalty may be either in addition to, or in lieu of, any other liability or penalty which may be imposed.
(b) The Directorate of Defense Trade Controls may make:
(1) The payment of a civil penalty under this section or
(2) The completion of any administrative action pursuant to this part 127 or 128 of this subchapter a prior condition for the issuance, restoration, or continuing validity of any export license or other approval.
§ 127.11 Past violations.
(a) Presumption of denial. Pursuant to section 38 of the Arms Export Control Act, licenses or other approvals may not be granted to persons who have been convicted of violating any of the U.S. criminal statutes enumerated in § 120.6 of this subchapter or who are ineligible to receive any export licenses from any agency of the U.S. Government, subject to a narrowly defined statutory exception. This provision establishes a presumption of denial for licenses or other approvals involving such persons. This presumption is applied by the Directorate of Defense Trade Controls to all persons convicted or deemed ineligible in this manner since the effective date of the Arms Export Control Act (Public Law 94-329; 90 Stat. 729) (June 30, 1976).
(b) Policy. An exception to the policy of the Department of State to deny applications for licenses or other approvals that involve persons described in paragraph (a) of this section shall not be considered unless there are extraordinary circumstances surrounding the conviction or ineligibility to export, and only if the applicant demonstrates, to the satisfaction of the Assistant Secretary of State for Political-Military Affairs, that the applicant has taken appropriate steps to mitigate any law enforcement and other legitimate concerns, and to deal with the causes that resulted in the conviction, ineligibility, or debarment. Any person described in paragraph (a) of this section who wishes to request consideration of any application must explain, in a letter to the Deputy Assistant Secretary of State for Defense Trade Controls the reasons why the application should be considered. If the Assistant Secretary of State for Political-Military Affairs concludes that the application and written explanation have sufficient merit, the Assistant Secretary shall consult with the Office of the Legal Adviser and the Department of the Treasury regarding law enforcement concerns, and may also request the views of other departments, including the Department of Justice. If the Directorate of Defense Trade Controls does grant the license or other approval, subsequent applications from the same person need not repeat the information previously provided but should instead refer to the favorable decision.
(c) Debarred persons. Persons debarred pursuant to § 127.7(b) (statutory debarment) may not utilize the procedures provided by paragraph (b) of this section while the statutory debarment is in force. Such persons may utilize only the procedures provided by § 127.7(d).
§ 127.12 Voluntary disclosures.
(a) General policy. The Department strongly encourages the disclosure of information to the Directorate of Defense Trade Controls by persons that believe they may have violated any export control provision of the Arms Export Control Act, or any regulation, order, license, or other authorization issued under the authority of the Arms Export Control Act. The Department may consider a voluntary disclosure as a mitigating factor in determining the administrative penalties, if any, that should be imposed. Failure to report a violation may result in circumstances detrimental to U.S. national security and foreign policy interests, and will be an adverse factor in determining the appropriate disposition of such violations.
(b) Limitations. (1) The provisions of this section apply only when information is provided to the Directorate of Defense Trade Controls for its review in determining whether to take administrative action under part 128 of this subchapter concerning a violation of the export control provisions of the Arms Export Control Act and these regulations.
(2) The provisions of this section apply only when information is received by the Directorate of Defense Trade Controls for review prior to such time that either the Department of State or any other agency, bureau, or department of the United States Government obtains knowledge of either the same or substantially similar information from another source and commences an investigation or inquiry that involves that information, and that is intended to determine whether the Arms Export Control Act or these regulations, or any other license, order, or other authorization issued under the Arms Export Control Act has been violated.
(3) The violation(s) in question, despite the voluntary nature of the disclosure, may merit penalties, administrative actions, sanctions, or referrals to the Department of Justice to consider criminal prosecution. In the latter case, the Directorate of Defense Trade Controls will notify the Department of Justice of the voluntary nature of the disclosure, although the Department of Justice is not required to give that fact any weight. The Directorate of Defense Trade Controls has the sole discretion to consider whether “voluntary disclosure,” in context with other relevant information in a particular case, should be a mitigating factor in determining what, if any, administrative action will be imposed. Some of the mitigating factors the Directorate of Defense Trade Controls may consider are:
(i) Whether the transaction would have been authorized, and under what conditions, had a proper license request been made;
(ii) Why the violation occurred;
(iii) The degree of cooperation with the ensuing investigation;
(iv) Whether the person has instituted or improved an internal compliance program to reduce the likelihood of future violation;
(v) Whether the person making the disclosure did so with the full knowledge and authorization of the person’s senior management. (If not, then the Directorate will not deem the disclosure voluntary as covered in this section.)
(4) The provisions of this section do not, nor should they be relied on to, create, confer, or grant any rights, benefits, privileges, or protection enforceable at law or in equity by any person in any civil, criminal, administrative, or other matter.
(5) Nothing in this section shall be interpreted to negate or lessen the affirmative duty pursuant to §§ 126.1(e), 126.16(h)(5), and 126.17(h)(5) of this subchapter upon persons to inform the Directorate of Defense Trade Controls of the actual or final sale, export, transfer, reexport, or retransfer of a defense article, technical data, or defense service to any country referred to in § 126.1 of this subchapter, any citizen of such country, or any person acting on its behalf.
(c) Notification. (1) Any person wanting to disclose information that constitutes a voluntary disclosure should, in the manner outlined below, initially notify the Directorate of Defense Trade Controls immediately after a violation is discovered and then conduct a thorough review of all defense trade transactions where a violation is suspected.
(i) If the notification does not contain all the information required by paragraph (c)(2) of this section, a full disclosure must be submitted within 60 calendar days of the notification, or the Directorate of Defense Trade Controls will not deem the notification to qualify as a voluntary disclosure.
(ii) If the person is unable to provide a full disclosure within the 60 calendar day deadline, an empowered official (see § 120.67 of this subchapter) or a senior officer may request an extension of time in writing. A request for an extension must specify what information required by paragraph (c)(2) of this section could not be immediately provided and the reasons why.
(iii) Before approving an extension of time to provide the full disclosure, the Directorate of Defense Trade Controls may require the requester to certify in writing that they will provide the full disclosure within a specific time period.
(iv) Failure to provide a full disclosure within a reasonable time may result in a decision by the Directorate of Defense Trade Controls not to consider the notification as a mitigating factor in determining the appropriate disposition of the violation. In addition, the Directorate of Defense Trade Controls may direct the requester to furnish all relevant information surrounding the violation.
(2) Notification of a violation must be in writing and should include the following information:
(i) A precise description of the nature and extent of the violation (e.g., an unauthorized shipment, doing business with a party denied U.S. export privileges, etc.);
(ii) The exact circumstances surrounding the violation (a thorough explanation of why, when, where, and how the violation occurred);
(iii) The complete identities and addresses of all persons known or suspected to be involved in the activities giving rise to the violation (including mailing, shipping, and e-mail addresses; telephone and fax/facsimile numbers; and any other known identifying information);
(iv) Department of State license numbers, exemption citation, or description of any other authorization, if applicable;
(v) U.S. Munitions List category and subcategory, product description, quantity, and characteristics or technological capability of the hardware, technical data or defense service involved;
(vi) A description of corrective actions already undertaken that clearly identifies the new compliance initiatives implemented to address the causes of the violations set forth in the voluntary disclosure and any internal disciplinary action taken; and how these corrective actions are designed to deter those particular violations from occurring again;
(vii) The name and address of the person making the disclosure and a point of contact, if different, should further information be needed.
(3) Factors to be addressed in the voluntary disclosure include, for example, whether the violation was intentional or inadvertent; the degree to which the person responsible for the violation was familiar with the laws and regulations, and whether the person was the subject of prior administrative or criminal action under the AECA; whether the violations are systemic; and the details of compliance measures, processes and programs, including training, that were in place to prevent such violations, if any. In addition to immediately providing written notification, persons are strongly urged to conduct a thorough review of all export-related transactions where a possible violation is suspected.
(d) Documentation. The written disclosure should be accompanied by copies of substantiating documents. Where appropriate, the documentation should include, but not be limited to:
(1) Licensing documents (e.g., license applications, export licenses, and end-user statements), exemption citation, or other authorization description, if any;
(2) Shipping documents (e.g., Electronic Export Information filing, including the Internal Transaction Number, air waybills, and bills of laden, invoices, and any other associated documents); and
(3) Any other relevant documents must be retained by the person making the disclosure until the Directorate of Defense Trade Controls requests them or until a final decision on the disclosed information has been made.
(e) Certification. A certification must be submitted stating that all of the representations made in connection with the voluntary disclosure are true and correct to the best of that person’s knowledge and belief. Certifications should be executed by an empowered official (see § 120.67 of this subchapter), or by a senior officer (e.g. chief executive officer, president, vice-president, comptroller, treasurer, general counsel, or member of the board of directors). If the violation is a major violation, reveals a systemic pattern of violations, or reflects the absence of an effective compliance program, the Directorate of Defense Trade Controls may require that such certification be made by a senior officer of the company.
(f) Oral presentations. Oral presentation is generally not necessary to augment the written presentation. However, if the person making the disclosure believes a meeting is desirable, a request should be included with the written presentation.
(g) Send voluntary disclosures to the Office of Defense Trade Controls Compliance, Directorate of Defense Trade Controls. Consult the Directorate of Defense Trade Controls Web site at http://www.pmddtc.state.gov for the appropriate street address.
PART 128 – ADMINISTRATIVE PROCEDURES
§ 128.1 Exclusion of functions from the Administrative Procedure Act.
The Arms Export Control Act (AECA) authorizes the President to control the import and export of defense articles and services in furtherance of world peace and the security and foreign policy of the United States. Pursuant to delegated authorities, the Secretary of State is authorized to make decisions on whether license applications or other written requests for approval shall be granted, or whether exemptions may be used. The Secretary of State is also authorized to revoke, suspend, or amend licenses or other written approvals whenever such action is deemed to be advisable. The administration of the AECA is a foreign affairs function encompassed within the meaning of the military and foreign affairs exclusion of the Administrative Procedure Act and is thereby expressly exempt from various provisions of that Act. Because the exercising of the foreign affairs function, including the decisions required to implement the AECA, is highly discretionary, it is excluded from review under the Administrative Procedure Act.
§ 128.2 Administrative Law Judge.
The Administrative Law Judge referred to in this part is an Administrative Law Judge appointed by the Department of State. The Administrative Law Judge is authorized to exercise the powers and perform the duties provided for in §§ 128.3 through 128.16.
§ 128.3 Institution of Administrative Proceedings.
(a) Charging letters. The Deputy Assistant Secretary of State for Defense Trade Controls or the Director, Office of Defense Trade Controls Compliance, with the concurrence of the Office of the Legal Adviser, Department of State, may initiate proceedings to impose debarment or civil penalties in accordance with § 127.7 or § 127.10 of this subchapter, respectively. Administrative proceedings shall be initiated by means of a charging letter. The charging letter will state the essential facts constituting the alleged violation and refer to the regulatory or other provision involved. It will give notice to the respondent to answer the charges within 30 days, as provided in § 128.5(a), and indicate that a failure to answer will be taken as an admission of the truth of the charges. It will inform the respondent that he or she is entitled to an oral hearing if a written demand for one is filed with the answer or within seven days after service of the answer. The respondent will also be informed that he or she may, if so desired, be represented by counsel of his or her choosing. Charging letters may be amended from time to time, upon reasonable notice.
(b) Service. A charging letter is served upon a respondent:
(1) If the respondent is a resident of the United States, when it is mailed postage prepaid in a wrapper addressed to the respondent at that person’s last known address; or when left with the respondent or the agent or employee of the respondent; or when left at the respondent’s dwelling with some person of suitable age and discretion then residing herein; or
(2) If the respondent is a non-resident of the United States, when served upon the respondent by any of the foregoing means. If such methods of service are not practicable or appropriate, the charging letter may be tendered for service on the respondent to an official of the government of the country wherein the respondent resides, provided that there is an agreement or understanding between the United States Government and the government of the country wherein the respondent resident permitting this action.
§ 128.4 Default.
(a) Failure to answer. If the respondent fails to answer the charging letter, the respondent may be held in default. The case shall then be referred to the Administrative Law Judge for consideration in a manner as the Administrative Law Judge may consider appropriate. Any order issued shall have the same effect as an order issued following the disposition of contested charges.
(b) Petition to set aside defaults. Upon showing good cause, any respondent against whom a default order has been issued may apply to set aside the default and vacate the order entered thereon. The petition shall be submitted to duplicate to the Assistant Secretary for Political-Military Affairs, U.S. Department of State, 2201 C Street, NW., Washington, DC 20520. The Director will refer the petition to the Administrative Law Judge for consideration and a recommendation. The Administrative law Judge will consider the application and may order a hearing and require the respondent to submit further evidence in support of his or her petition. The filing of a petition to set aside a default does not in any manner affect an order entered upon default and such order continues in full force and effect unless a further order is made modifying or terminating it.
§ 128.5 Answer and demand for oral hearing.
(a) When to answer. The respondent is required to answer the charging letter within 30 days after service.
(b) Contents of answer. An answer must be responsive to the charging letter. It must fully set forth the nature of the respondent’s defense or defenses. In the answer, the respondent must admit or deny specifically each separate allegation of the charging letter, unless the respondent is without knowledge, in which case the respondent’s answer shall so state and the statement shall operate as denial. Failure to deny or controvert any particular allegation will be deemed an admission thereof. The answer may set forth such additional or new matter as the respondent believes support a defense or claim of mitigation. Any defense or partial defense not specifically set forth in an answer shall be deemed waived. Evidence offered thereon by the respondent at a hearing may be refused except upon good cause being shown. If the respondent does not demand an oral hearing, he or she shall transmit, within seven (7) days after the service of his or her answer, original or photocopies of all correspondence, papers, records, affidavits, and other documentary or written evidence having any bearing upon or connection with the matters in issue. If any such materials are in language other than English, translations into English shall be submitted at the same time.
(c) Submission of answer. The answer, written demand for oral hearing (if any) and supporting evidence required by paragraph (b) of this section shall be in duplicate and mailed or delivered to the designated Administrative Law Judge. A copy shall be simultaneously mailed to the Deputy Assistant Secretary of State for Defense Trade Controls, SA-1, Room 1200, Department of State, Washington, DC 20522-0112, or delivered to 2401 Street NW., Washington, DC addressed to the Deputy Assistant Secretary of State for Defense Trade Controls, SA-1, Room 1200, Department of State, Washington, DC 20037.
§ 128.6 Discovery.
(a) Discovery by the respondent. The respondent, through the Administrative Law Judge, may request from the Directorate of Defense Trade Controls any relevant information, not privileged or otherwise not authorized for release, that may be necessary or helpful in preparing a defense. The Directorate of Defense Trade Controls may provide any relevant information, not privileged or otherwise not authorized for release, that may be necessary or helpful in preparing a defense. The Directorate of Defense Trade Controls may supply summaries in place of original documents and may withhold information from discovery if the interests of national security or foreign policy so require, or if necessary to comply with any statute, executive order or regulation requiring that the information not be disclosed. The respondent may request the Administrative Law Judge to request any relevant information, books, records, or other evidence, from any other person or government agency so long as the request is reasonable in scope and not unduly burdensome.
(b) Discovery by the Directorate of Defense Trade Controls. The Directorate of Defense Trade Controls or the Administrative Law Judge may make reasonable requests from the respondent of admissions of facts, answers to interrogatories, the production of books, records, or other relevant evidence, so long as the request is relevant and material.
(c) Subpoenas. At the request of any party, the Administrative Law Judge may issue subpoenas, returnable before him, requiring the attendance of witnesses and the production of books, records, and other documentary or physical evidence determined by he Administrative Law Judge to be relevant and material to the proceedings, reasonable in scope, and not unduly burdensome.
(d) Enforcement of discovery rights. If the Directorate of Defense Trade Controls fails to provide the respondent with information in its possession which is not otherwise available and which is necessary to the respondent’s defense, the Administrative Law Judge may dismiss the charges on her or his own motion or on a motion of the respondent. If the respondent fails to respond with reasonable diligence to the requests for discovery by the Directorate of Defense Trade Controls or the Administrative Law Judge, on her or his own motion or motion of the Directorate of Defense Trade Controls, and upon such notice to the respondent as the Administrative Law Judge may direct, may strike respondent’s answer and declare the respondent in default, or make any other ruling which the Administrative Law Judge deems necessary and just under the circumstances. If a third party fails to respond to the request for information, the Administrative Law Judge shall consider whether the evidence sought is necessary to a fair hearing, and if it is so necessary that a fair hearing may not be held without it, the Administrative Law Judge shall determine whether substitute information is adequate to protect the rights of the respondent. If the Administrative Law Judge decides that a fair hearing may be held with the substitute information, then the proceedings may continue. If not, then the Administrative Law Judge may dismiss the charges.
§ 128.7 Prehearing conference.
(a)(1) The Administrative Law Judge may, upon his own motion or upon motion of any party, request the parties or their counsel to a prehearing conference to consider:
(i) Simplification of issues;
(ii) The necessity or desirability of amendments to pleadings;
(iii) Obtaining stipulations of fact and of documents to avoid unnecessary proof; or
(iv) Such other matter as may expedite the disposition of the proceeding.
(2) The Administrative Law Judge will prepare a summary of the action agreed upon or taken at the conference, and will incorporate therein any written stipulations or agreements made by the parties.
(3) The conference proceedings may be recorded magnetically or taken by a reporter and transcribed, and filed with the Administrative Law Judge.
(b) If a conference is impracticable , the Administrative Law Judge may request the parties to correspond with the person to achieve the purposes of a conference. The Administrative Law Judge shall prepare a summary of action taken as in the case of a conference.
§ 128.8 Hearings.
(a) A respondent who had not filed a timely written answer is not entitled to a hearing, and the case may be considered by the Administrative Law Judge as provided in § 128.4(a). If any answer is filed, but no oral hearing demanded, the Administrative Law Judge may proceed to consider the case upon the written pleadings and evidence available. The Administrative Law Judge may provide for the making of the record in such manner as the Administrative Law Judge deems appropriate. If respondent answers and demands an oral hearing, the Administrative Law Judge, upon due notice, shall set the case for hearing, unless a respondent has raised in his answer no issues of material fact to be determined. If respondent fails to appear at a scheduled hearing, the hearing nevertheless may proceed in respondent’s absence. The respondent’s failure to appear will not affect the validity of the hearing or any proceedings or action thereafter.
(b) The Administrative Law Judge may administer oaths and affirmations. Respondent may be represented by counsel. Unless otherwise agreed by the parties and the Administrative Law Judge the proceeding will be taken by a reporter or by magnetic recording, transcribed, and filed with the Administrative Law Judge. Respondent may examine the transcript and may obtain a copy upon payment of proper costs.
§ 128.9 Proceedings before and report of Administrative Law Judge.
(a) The Administrative Law Judge may conform any part of the proceedings before him or her to the Federal Rules of Civil Procedure. The record may be made available in any other administrative or other proceeding involving the same respondent.
(b) The Administrative Law Judge, after considering the record, will prepare a written report. The report will include findings of fact, findings of law, a finding whether a law or regulation has been violated, and the Administrative Law Judge’s recommendations. It shall be transmitted to the Assistant Secretary for Political-Military Affairs, Department of State.
§ 128.10 Disposition of proceedings.
Where the evidence is not sufficient to support the charges, the Deputy Assistant Secretary of State for Defense Trade Controls or the Administrative Law Judge will dismiss the charges. Where the Administrative Law Judge finds that a violation has been committed, the Administrative Law Judge’s recommendation shall be advisory only. The Assistant Secretary of State for Political-Military Affairs will review the record, consider the report of the Administrative Law Judge, and make an appropriate disposition of the case. The Deputy Assistant Secretary of State for Defense Trade Controls may issue an order debarring the respondent from participating in the export of defense articles or technical data or the furnishing of defense services as provided in § 127.7 of this subchapter, impose a civil penalty as provided in § 127.10 of this subchapter, or take such action as the Administrative Law Judge may recommend. Any debarment order will be effective for the period of time specified therein and may contain such additional terms and conditions as are deemed appropriate. A copy of the order together with a copy of the Administrative Law Judge’s report will be served upon the respondent.
§ 128.11 Consent agreements.
(a) The Directorate of Defense Trade Controls and the respondent may, by agreement, submit to the Administrative Law Judge a proposal for the issuance of a consent order. The Administrative Law Judge will review the facts of the case and the proposal and may conduct conferences with the parties and may require the presentation of evidence in the case. If the Administrative Law Judge does not approve the proposal, the Administrative Law Judge will notify the parties and the case will proceed as though no consent proposal had been made. If the proposal is approved, the Administrative Law Judge will report the facts of the case along with recommendations to the Assistant Secretary of State for Political-Military Affairs. If the Assistant Secretary of State for Political-Military Affairs does not approve the proposal, the case will proceed as though no consent proposal had been made. If the Assistant Secretary of State for Political-Military Affairs approves the proposal, an appropriate order may be issued.
(b) Cases may also be settled prior to service of a charging letter. In such an event, a proposed charging letter shall be prepared, and a consent agreement and order shall be submitted for the approval and signature of the Assistant Secretary for Political-Military Affairs, and no action by the Administrative Law Judge shall be required. Cases which are settled may not be reopened or appealed.
§ 128.12 Rehearings.
The Administrative Law Judge may grant a rehearing or reopen a proceeding at any time for the purpose of hearing any relevant and material evidence which was not known or obtainable at the time of the original hearing. A report for rehearing or reopening must contain a summary of such evidence, and must explain the reasons why it could not have been presented at the original hearing. The Administrative Law Judge will inform the parties of any further hearing, and will conduct such hearing and submit a report and recommendations in the same manner as provided for the original proceeding (Described in § 128.10).
§ 128.13 Appeals.
(a) Filing of appeals. An appeal must be in writing, and be addressed to and filed with the Under Secretary of State for Arms Control and International Security, Department of State, Washington, DC 20520. An appeal from a final order denying export privileges or imposing civil penalties must be filed within 30 days after receipt of a copy of the order. If the Under Secretary cannot for any reason act on the appeal, he or she may designate another Department of State official to receive and act on the appeal.
(b) Grounds and conditions for appeal. The respondent may appeal from the debarment or from the imposition of a civil penalty (except the imposition of civil penalties pursuant to a consent order pursuant to § 128.11) upon the ground: (1) That the findings of a violation are not supported by any substantial evidence; (2) that a prejudicial error of law was committed: or (3) that the provisions of the order are arbitrary, capricious, or an abuse of discretion. The appeal must specify upon which of these grounds the appeal is based and must indicate from which provisions of the order the appeal is taken. An appeal from an order issued upon default will not be entertained if the respondent has failed to seek relief as provided in § 128.4(b).
(c) Matters considered on appeal. An appeal will be considered upon the basis of the assembled record. This record consists of (but is not limited to) the charging letter, the respondent’s answer, the transcript or magnetic recording of the hearing before the Administrative Law Judge, the report of the Administrative Law Judge, the order of the Assistant Secretary of State for Political-Military Affairs, and any other relevant documents involved in the proceedings before the Administrative Law Judge. The Under Secretary of State for Arms Control and International Security may direct a rehearing and reopening of the proceedings before the Administrative Law Judge if he or she finds that the record is insufficient or that new evidence is relevant and material to the issues and was not known and was not reasonably available to the respondent at the time of the original hearings.
(d) Effect of appeals. The taking of an appeal will not stay the operation of any order.
(e) Preparation of appeals – (1) General requirements. An appeal shall be in letter form. The appeal and accompanying material should be filed in duplicate, unless otherwise indicated, and a copy simultaneously mailed to the Deputy Assistant Secretary of State for Defense Trade Controls, SA-1, Room 1200, Department of State, Washington, DC 20522-0112 or delivered to 2401 E Street NW., Washington, DC addressed to the Deputy Assistant Secretary of State for Defense Trade Controls, SA-1, Room 1200, Department of State, Washington, DC 20037.
(2) Oral presentation. The Under Secretary of State for Arms Control and International Security may grant the appellant an opportunity for oral argument and will set the time and place for oral argument and will notify the parties, ordinarily at least 10 days before the date set.
(f) Decisions. All appeals will be considered and decided within a reasonable time after they are filed. An appeal may be granted or denied in whole or in part, or dismissed at the request of the appellant. The decision of the Under Secretary of State for Arms Control and International Security will be final.
§ 128.14 Confidentiality of proceedings.
Proceedings under this part are confidential. The documents referred to in § 128.17 are not, however, deemed to be confidential. Reports of the Administrative Law Judge and copies of transcripts or recordings of hearings will be available to parties and, to the extent of their own testimony, to witnesses. All records are available to any U.S. Government agency showing a proper interest therein.
§ 128.15 Orders containing probationary periods.
(a) Revocation of probationary periods. A debarment order may set a probationary period during which the order may be held in abeyance for all or part of the debarment period, subject to the conditions stated therein. The Deputy Assistant Secretary of State for Defense Trade Controls may apply, without notice to any person to be affected thereby, to the Administrative Law Judge for a recommendation on the appropriateness of revoking probation when it appears that the conditions of the probation have been breached. The facts in support of the application will be presented to the Administrative Law Judge, who will report thereon and make a recommendation to the Assistant Secretary of State for Political-Military Affairs. The latter will make a determination whether to revoke probation and will issue an appropriate order. The party affected by this action may request the Assistant Secretary of State for Political-Military Affairs to reconsider the decision by submitting a request within 10 days of the date of the order.
(b) Hearings – (1) Objections upon notice. Any person affected by an application upon notice to revoke probation, within the time specified in the notice, may file objections with the Administrative Law Judge.
(2) Objections to order without notice. Any person adversely affected by an order revoking probation, without notice may request that the order be set aside by filing his objections thereto with the Administrative Law Judge. The request will not stay the effective date of the order or revocation.
(3) Requirements for filing objections. Objections filed with the Administrative Law Judge must be submitted in writing and in duplicate. A copy must be simultaneously submitted to the Directorate of Defense Trade Controls. Denials and admissions, as well as any mitigating circumstances, which the person affected intends to present must be set forth in or accompany the letter of objection and must be supported by evidence. A request for an oral hearing may be made at the time of filing objections.
(4) Determination. The application and objections thereto will be referred to the Administrative Law Judge. An oral hearing if requested, will be conducted at an early convenient date, unless the objections filed raise no issues of material fact to be determined. The Administrative Law Judge will report the facts and make a recommendation to the Assistant Secretary for Political-Military Affairs, who will determine whether the application should be granted or denied and will issue an appropriate order. A copy of the order and of the Administrative Law Judge’s report will be furnished to any person affected thereby.
(5) Effect of revocation on other actions. The revocation of a probationary period will not preclude any other action concerning a further violation, even where revocation is based on the further violation.
§ 128.16 Extension of time.
The Administrative Law Judge, for good cause shown, may extend the time within which to prepare and submit an answer to a charging letter or to perform any other act required by this part.
§ 128.17 Availability of orders.
All charging letters, debarment orders, and orders imposing civil penalties and probationary periods are available for public inspection in the Public Reading Room of the Department of State.
PART 129 – REGISTRATION AND LICENSING OF BROKERS
§ 129.1 Purpose.
(a) Section 38(b)(1)(A)(ii) of the Arms Export Control Act (22 U.S.C. 2778) provides that persons engaged in the business of brokering activities shall register and pay a registration fee as prescribed in regulations, and that no person may engage in the business of brokering activities without a license issued in accordance with the Act.
(b) All brokering activities identified in this subchapter apply equally to those defense articles and defense services designated in § 121.1 of this subchapter and those items designated in 27 CFR 447.21 (U.S. Munitions Import List).
§ 129.2 Definitions.
As used in this part:
(a) Broker means any person (see § 120.61 of this subchapter) described below who engages in the business of brokering activities:
(1) Any U.S. person (see § 120.62 of this subchapter) wherever located;
(2) Any foreign person (see § 120.63 of this subchapter) located in the United States; or
(3) Any foreign person located outside the United States where the foreign person is owned or controlled by a U.S. person.
For purposes of this paragraph, “owned by a U.S. person” means more than 50 percent of the outstanding voting securities of the firm are owned by a U.S. person, and “controlled by a U.S. person” means one or more U.S. persons have the authority or ability to establish or direct the general policies or day-to-day operations of the firm. U.S. person control is rebuttably presumed to exist where U.S. persons own 25 percent or more of the outstanding voting securities unless one foreign person controls an equal or larger percentage.
(b) Brokering activities means any action on behalf of another to facilitate the manufacture, export, permanent import, transfer, reexport, or retransfer of a U.S. or foreign defense article or defense service, regardless of its origin.
(1) Such action includes, but is not limited to:
(i) Financing, insuring, transporting, or freight forwarding defense articles and defense services; or
(ii) Soliciting, promoting, negotiating, contracting for, arranging, or otherwise assisting in the purchase, sale, transfer, loan, or lease of a defense article or defense service.
(2) Such action does not include:
(i) Activities by a U.S. person in the United States that are limited exclusively to U.S. domestic sales or transfers (e.g., not for export);
(ii) Activities by employees of the U.S. Government acting in an official capacity;
(iii) Activities by regular employees (see § 120.64 of this subchapter) acting on behalf of their employer, including those regular employees who are dual nationals or third-country nationals that satisfy the requirements of § 126.18 of this subchapter;
The exclusion does not apply to persons subject to U.S. jurisdiction with respect to activities involving a defense article or defense service originating in or destined for any proscribed country, area, or person identified in § 126.1 of this subchapter.
(iv) Activities that do not extend beyond administrative services, such as providing or arranging office space and equipment, hospitality, advertising, or clerical, visa, or translation services, collecting product and pricing information to prepare a response to Request for Proposal, generally promoting company goodwill at trade shows, or activities by an attorney that do not extend beyond the provision of legal advice to clients;
(v) Activities performed by an affiliate, as defined in § 120.66 of this subchapter, on behalf of another affiliate;
(vi) Activities by persons, including their regular employees (see § 120.64 of this subchapter), that do not extend beyond acting as an end-user of a defense article or defense service exported pursuant to a license or other approval under part 123, 124, or 125 of this subchapter, or subsequently acting as a reexporter or retransferor of such article or service under such license or other approval, or under an approval pursuant to § 123.9 of this subchapter;
(vii) Activities by persons to facilitate the manufacture in the United States or export of an item subject to the EAR; or
(viii) Activities by persons to facilitate the reexport, or transfer of an item subject to the EAR that has been approved pursuant to a license, license exception, or no license required authorization under the EAR or a license or other approval under this subchapter.
(c) For the purposes of this subchapter, engaging in the business of brokering activities requires only one occasion of brokering as described in paragraph (b) of this section.
§ 129.3 Requirement to register.
(a) Except as provided in paragraph (b) of this section, any person who engages in brokering activities (see § 129.2) is required to register with the Directorate of Defense Trade Controls. Registration under this section is generally a precondition for the issuance of approval for brokering activities required under this part 129 or the use of exemptions.
(b) Exemptions. Registration, approval, recordkeeping, and reporting under this section are not required for:
(1) Foreign governments or international organizations, including their employees, acting in an official capacity; or
(2) Persons exclusively in the business of financing, insuring, transporting, customs brokering, or freight forwarding, whose activities do not extend beyond financing, insuring, transporting, customs brokering, or freight forwarding. Examples include air carriers or freight forwarders that merely transport or arrange transportation for licensed defense articles, and banks or credit companies who merely provide commercially available lines or letters of credit to persons registered or required to register in accordance with parts 122 or 129 of this subchapter. However, banks, firms, or other persons providing financing for defense articles or defense services are required to register under certain circumstances, such as when the bank or its employees are directly involved in arranging transactions involving defense articles or defense services or hold title to defense articles, even when no physical custody of defense articles is involved. In such circumstances, the banks, firms, or other persons providing financing for defense articles or defense services are not exempt.
(c) Persons exempt from registration, approval, recordkeeping, and reporting as provided in § 129.3(b) are subject to the policy on embargoes and other proscriptions as outlined in § 129.7.
(d) U.S. persons who are registered as a manufacturer or exporter in accordance with part 122 of this subchapter, including their U.S. or foreign subsidiaries and other affiliates listed on their Statement of Registration who are required to register under this part, are not required to submit a separate broker registration or pay a separate broker registration fee when more than 50 percent of the voting securities are owned by the registrant or such subsidiaries and affiliates are otherwise controlled by the registrant (see § 120.66 of this subchapter), and they are listed and identified as brokers within their manufacturer or exporter Statement of Registration. All other requirements of this part apply to such brokers and their brokering activities.
(e) Registration under this section is a precondition for the issuance of approval for brokering activities required under this section or the use of exemptions, unless an exception is granted by the Directorate of Defense Trade Controls.
§ 129.4 Requirement for approval.
(a) Except as provided in § 129.5, no person who is required to register as a broker pursuant to § 129.3 of this subchapter may engage in the business of brokering activities pursuant to § 129.2(b) without first obtaining the approval of the Directorate of Defense Trade Controls for the brokering of any of the following:
(1) Any foreign defense article or defense service enumerated in part 121 of this subchapter (see § 120.39 of this subchapter, and § 129.5 for exemptions) and those foreign origin items on the U.S. Munitions Import List (see 27 CFR 447.21); or
(2) Any of the following U.S. origin defense articles or defense services:
(i) Firearms and other weapons of a nature described by Category I(a) through (d), Category II(a) and (d), and Category III(a) of § 121.1 of this subchapter or Category I(a) through (c), Category II(a), and Category III(a) of the U.S. Munitions Import List (see 27 CFR 447.21);
(ii) Rockets, bombs, and grenades as well as launchers for such defense articles of a nature described by Category IV(a), and launch vehicles and missile and anti-missile systems of a nature described by Category IV(b) of § 121.1 of this subchapter (including man-portable air-defense systems);
(iii) Vessels of war described by Category VI of § 121.1 of this subchapter;
(iv) Tanks and military vehicles described by Category VII of § 121.1 of this subchapter;
(v) Aircraft and unmanned aerial vehicles described by Category VIII of § 121.1 of this subchapter;
(vi) Night vision-related defense articles and inertial platform, sensor, and guidance-related systems of a nature described by Category XII(c) and (d) of § 121.1 of this subchapter;
(vii) Chemical agents and precursors described by Category XIV(a), (c), and (e) of § 121.1 of this subchapter, biological agents and biologically derived substances described by Category XIV(b) of § 121.1 of this subchapter, and equipment described by Category XIV(f) of § 121.1 of this subchapter for dissemination of the chemical agents and biological agents described by Category XIV(a), (b), and (e) of § 121.1 of this subchapter;
(viii) Submersible vessels described by Category XX of § 121.1 of this subchapter; and
(ix) Miscellaneous articles of a nature described by Category XXI of § 121.1 of this subchapter.
(b) [Reserved]
§ 129.5 Exemption from requirement for approval.
(a) Unless paragraph (c) of this section applies, brokering activities undertaken for an agency of the U.S. Government pursuant to a contract between the broker and that agency are exempt from the requirement for approval provided that:
(1) The brokering activities concern defense articles or defense services solely for the use of the agency; or
(2) The brokering activities are undertaken for carrying out a foreign assistance or sales program authorized by law and subject to control by the President by other means, as demonstrated by one of the following conditions being met:
(i) The U.S. Government agency contract with the broker contains an explicit provision stating the contract supports a foreign assistance or sales program authorized by law and the contracting agency has established control of the activity covered by the contract by other means equivalent to that established under this subchapter; or
(ii) The Directorate of Defense Trade Controls provides written concurrence in advance that the condition is met.
(b) Unless paragraph (c) of this section applies, brokering activities regarding a foreign defense article or defense service (see § 120.39 of this subchapter) are exempt from the requirement for approval when arranged wholly within and destined exclusively for the North Atlantic Treaty Organization, any member country of that organization, Australia, Israel, Japan, New Zealand, or the Republic of Korea, except in the case of the defense articles or defense services specified in § 129.4(a)(2), for which approval is required.
(c) Brokers engaging in brokering activities described in paragraph (a) or (b) of this section are not exempt from obtaining approval from the Directorate of Defense Trade Controls if:
(1) The broker is not registered as required by § 129.3;
(2) The broker or any person who has a direct or indirect interest in or may benefit from the brokering activities, including any related defense article or defense service transaction, is ineligible as defined in § 120.16(c) of this subchapter; or
(3) A country or person referred to in § 126.1 of this subchapter is involved in the brokering activities or such activities are otherwise subject to § 129.7.
(d) Brokers who use the exemptions in this section must comply with all other provisions of this part 129.
§ 129.6 Procedures for obtaining approval.
(a) All requests for approval of brokering activities must be made to the Directorate of Defense Trade Controls, be signed by an empowered official, and include the following information:
(1) The applicant’s name, address and registration code;
(2) A certification on whether:
(i) The applicant or the chief executive officer, president, vice presidents, secretary, partner, member, other senior officers or officials (e.g., comptroller, treasurer, general counsel), or any member of the board of directors is the subject of an indictment or has been otherwise charged (e.g., by criminal information in lieu of indictment) for, or has been convicted of, violating any of the U.S. criminal statutes enumerated in § 120.6 of this subchapter;
(ii) The applicant or the chief executive officer, president, vice presidents, secretary, partner, member, other senior officers or officials (e.g., comptroller, treasurer, general counsel), or any member of the board of directors is ineligible to contract with, or to receive a license or other approval to import defense articles or defense services from, or to receive an export license or other approval from, any agency of the U.S. Government; and
(iii) To the best of the applicant’s knowledge, any other person involved in the brokering activities enumerated in the request for approval as defined in § 129.2 is the subject of an indictment or has been otherwise charged (e.g., charged by criminal information in lieu of indictment) for or has been convicted of violating any of the U.S. criminal statutes enumerated in § 120.6 of this subchapter, or is ineligible to contract with, or to receive a license or other approval to import defense articles or defense services from, or to receive an export license or other approval from, any agency of the U.S. Government.
(b) The request for approval shall describe fully the brokering activities that will be undertaken, including:
(1) The action to be taken by the applicant to facilitate the manufacture, export, import, or transfer of a defense article or defense service (which may be referred to as a “defense article or defense service transaction”);
(2) The name, nationality, address, and place of business of all persons who may participate in the brokering activities;
(3) A description of each defense article or defense service that may be involved, including:
(i) The U.S. Munitions List (see § 121.1 of this subchapter) or U.S. Munitions Import List (see 27 CFR 447.21) category and sub-category for each article;
(ii) The name or military nomenclature of each defense article;
(iii) Whether the defense article is significant military equipment;
(iv) Estimated quantity of each defense article;
(v) Estimated U.S. dollar value of defense articles and defense services;
(vi) Security classification; and
(vii) End-user and end-use; and
(4) A statement whether the brokering activities are related to a sale through direct commercial sale or under the U.S. Foreign Military Sales program or other activity in support of the U.S. Government.
(c) The empowered official signing the request for approval shall include a certification that the request is complete and accurate.
(d) If at the time of submission certain information required by paragraph (b) of this section is not yet available, this fact must be stated and explained in the certification required by paragraph (c) of this section. The Directorate of Defense Trade Controls will take any such explanation into account in deciding whether to approve the request.
(e) The period of validity for an approval may not exceed four years.
§ 129.7 Policy on embargoes and other proscriptions.
(a) This section applies to brokering activities defined in § 129.2, regardless of whether the person involved in such activities has registered or is exempt from registration under § 129.3. The exemptions in § 129.5 from the requirement for approval are not applicable to brokering activities subject to this section.
(b) No person may engage in or make a proposal to engage in brokering activities that involve any country, area, or person referred to in § 126.1 of this subchapter without first obtaining the approval of the Directorate of Defense Trade Controls.
(c) No person may engage in or make a proposal to engage in brokering activities without first obtaining approval of the Directorate of Defense Trade Controls if such activities involve countries or persons identified by the Department of State through notice in the
(d) It is the policy of the Department of State to deny requests for approval of brokering activities or proposals to engage in brokering activities involving the countries or persons referred to in paragraph (b) or (c) of this section. Any person who knows or has reason to know of brokering activities involving such countries or persons must immediately inform the Directorate of Defense Trade Controls.
§ 129.8 Submission of Statement of Registration, registration fees, and notification of changes in information furnished by registrants.
(a) An intended registrant must submit a Department of State form DS-2032 (Statement of Registration) to the Office of Defense Trade Controls Compliance by following the submission guidelines available on the Directorate of Defense Trade Controls Web site at www.pmddtc.state.gov. The Statement of Registration must be signed by a U.S. person senior officer (e.g., chief executive officer, president, secretary, partner, member, treasurer, general counsel) who has been empowered by the intended registrant to sign such documents, with the exception that a foreign senior officer may sign the Statement of Registration if the intended registrant seeks only to register as a foreign broker. The Statement of Registration may include subsidiaries and affiliates when more than 50 percent of the voting securities are owned by the registrant or the subsidiaries and affiliates are otherwise controlled by the registrant (see § 120.66 of this subchapter). The intended registrant, whether a U.S. or foreign person, shall submit documentation that demonstrates it is incorporated or otherwise authorized to do business in its respective country. Foreign persons who are required to register shall provide information that is substantially similar in content to that which a U.S. person would provide under this provision (e.g., foreign business license or similar authorization to do business). The Directorate of Defense Trade Controls will notify the registrant if the Statement of Registration (form DS-2032) is incomplete either by notifying the registrant of what information is required or through the return of the entire registration package.
(b)(1) Frequency of registration and fee. A person who is required to register must do so on an annual basis by submitting a completed Statement of Registration (form DS-2032) and a fee following the fee guidelines available on the Directorate of Defense Trade Controls Web site at www.pmddtc.state.gov. Registrants are not required to submit a separate statement of registration and pay an additional fee when provisions in § 129.3(d) are met.
(2) Expiration of registration. A registrant must submit its request for registration renewal at least 30 days, but no earlier than 60 days, prior to the expiration date.
(3) Lapse in registration. A registrant who fails to renew a registration and, after an intervening period, seeks to register again must pay registration fees for any part of such intervening period during which the registrant engaged in the business of brokering defense articles or defense services.
(c) Statement of Registration Certification. The Statement of Registration (form DS-2032) of the intended registrant shall include a certification by an authorized senior officer of the following:
(1) Whether the intended registrant or its parent, subsidiary, or other affiliate listed in the Statement of Registration, or any of its chief executive officers, presidents, vice presidents, secretaries, partners, members, other senior officers or officials (e.g., comptroller, treasurer, general counsel), or any member of the board of directors of the intended registrant, or of any parent, subsidiary, or other affiliate listed in the Statement of Registration:
(i) Has ever been indicted or otherwise charged (e.g., charged by criminal information in lieu of indictment) for or has been convicted of violating any U.S. criminal statutes enumerated in § 120.6 of this subchapter or violating a foreign criminal law on exportation of defense articles where conviction of such law carries a minimum term of imprisonment of greater than 1 year; or
(ii) Is ineligible to contract with, or to receive a license or other approval to import defense articles or defense services from, or to receive an export license or other approval from, any agency of the U.S. Government; and
(2) Whether the intended registrant is foreign owned or foreign controlled (see § 120.65 of this subchapter). If the intended registrant is foreign owned or foreign controlled, the certification shall include an explanation of such ownership or control, including the identities of the foreign person or persons who ultimately own or control the registrant. This requirement applies to a registrant who is a U.S. person and is owned or controlled by a foreign person. It also applies to a registrant who is a foreign person and is owned or controlled by a foreign person from the same country or a foreign person from another country.
(d) A registrant must, within five days of the event, provide to the Directorate of Defense Trade Controls a written notification, signed by a senior officer (e.g., chief executive officer, president, secretary, partner, member, treasurer, general counsel), if:
(1) Any of the persons referred to in § 129.8(c) is indicted or otherwise charged (e.g., charged by criminal information in lieu of indictment) for or convicted of violating any of the U.S. criminal statutes enumerated in § 120.6 of this subchapter or violating a foreign criminal law on exportation of defense articles where conviction of such law carries a minimum term of imprisonment of greater than 1 year; or becomes ineligible to contract with, or to receive a license or other approval to export or import defense articles or defense services from, any agency of the U.S.Government; or
(2) There is a change in the following information contained in the Statement of Registration (form DS-2032):
(i) Registrant’s name;
(ii) Registrant’s address;
(iii) Registrant’s legal organization structure;
(iv) Ownership or control;
(v) The establishment, acquisition or divestment of a U.S. or foreign subsidiary or other affiliate who is engaged in brokering activities or otherwise required to be listed in registrant’s Statement of Registration; or
(vi) Board of directors, senior officers, partners and owners.
All other changes in the Statement of Registration must be provided as part of annual registration renewal.
For one year from October 25, 2013, “Amendment to the International Traffic in Arms Regulations: Registration and Licensing of Brokers, Brokering Activities, and Related Provisions,” RIN 1400-AC37, the following changes must be provided as part of the annual registration renewal: pursuant to § 129.3(d), changes to combine an existing broker registration with an existing manufacturer/exporter registration, and pursuant to § 129.8(a), changes to an existing registration to remove partially owned and not otherwise controlled subsidiaries or affiliates, which are not the subject of an internal reorganization, merger, acquisition, or divestiture.
(e) A U.S. or foreign registrant must provide written notification to the Directorate of Defense Trade Controls at least sixty (60) days in advance of any intended sale or transfer to a foreign person of ownership or control of the registrant or any parent, subsidiary, or other affiliate listed and covered in its Statement of Registration. Such notice does not relieve the registrant from obtaining any prior approval required under this subchapter.
(f) The new entity formed when a registrant merges with another company or acquires, or is acquired by, another company or a subsidiary or division of another company, shall advise the Directorate of Defense Trade Controls of the following:
(1) The new firm name and all previous firm names;
(2) The registration number that will continue and those that are to be discontinued (if any); and
(3) The numbers of all approvals for brokering activities under the continuing registration number, since any approval not the subject of notification will be considered invalid.
(g) A registrant whose registration lapses because of failure to renew and, after an intervening period, seeks to register again must pay registration fees for any part of such intervening period during which the registrant engaged in the business of brokering activities.
§ 129.9 Guidance.
(a) Any person desiring guidance on whether an activity constitutes a brokering activity within the scope of this part 129 may request in writing guidance from the Directorate of Defense Trade Controls. The request for guidance shall identify the applicant and registrant code (if applicable) and describe fully the activities that will be undertaken, including:
(1) The specific activities to be undertaken by the applicant and any other U.S. or foreign person;
(2) The name, nationality, and geographic location of all U.S. and foreign persons who may participate in the activities;
(3) A description of each defense article or defense service that may be involved, including:
(i) The U.S. Munitions List category and sub-category for each article;
(ii) The name or military nomenclature of each defense article;
(iii) Whether the defense article is significant military equipment;
(iv) Estimated quantity of each defense article;
(v) Estimated U.S. dollar value of defense articles and defense services; and
(vi) Security classification;
(4) End-user and end-use; and
(5) A copy of any agreement or documentation, if available, between or among the requester and other persons who will be involved in the activity or related transactions that describes the activity to be taken by such persons.
(b) If at the time of submission certain information is not yet available, this circumstance must be stated and explained. The Directorate of Defense Trade Controls will take the completeness of the information into account in providing guidance on whether the activities constitute brokering activities. The guidance will constitute an official determination by the Department of State. The guidance shall not substitute for approval when required under § 129.4.
(c) Persons desiring guidance on other aspects of this part may also request guidance from the Directorate of Defense Trade Controls in a similar manner by submitting a description of the relevant facts or copies of relevant documentation.
§ 129.10 Reports.
(a) Any person required to register under this part (including those registered in accordance with § 129.3(d)) shall provide to the Directorate of Defense Trade Controls on an annual basis a report of its brokering activities in the previous twelve months. Such report shall be submitted along with the registrant’s annual renewal submission or, if not renewing, within 30 days after expiration of registration.
(b) The report shall include brokering activities that received or were exempt from approval as follows:
(1) The report shall identify the broker’s name, address, and registration code and be signed by an empowered official who shall certify that the report is complete and accurate. The report shall describe each of the brokering activities, including the number assigned by the Directorate of Defense Trade Controls to the approval or the exemption claimed; and
(2) For each of the brokering activities, the report shall identify all persons who participated in the activities, including each person’s name, address, nationality, and country where located and role or function; the quantity, description, and U.S. dollar value of the defense articles or defense services; the type and U.S. dollar value of any consideration received or expected to be received, directly or indirectly, by any person who participated in the brokering activities, and the source thereof.
(c) If there were no brokering activities, the report shall certify that there were no such activities.
§ 129.11 Maintenance of brokering records by registrants.
A person who is required to register pursuant to this part (including those registered in accordance with § 129.3(d)) must maintain records concerning brokering activities in accordance with § 122.5 of this subchapter.
PART 130 – POLITICAL CONTRIBUTIONS, FEES AND COMMISSIONS
§ 130.1 Purpose.
Section 39(a) of the Arms Export Control Act (22 U.S.C. 2779) provides that the Secretary of State shall prescribe regulations with respect to reporting on certain payments relating to sales of defense articles and defense services. The provisions of this part implement that requirement. Definitions which apply to this part are contained in §§ 130.2 through 130.8.
§ 130.2 Applicant.
Applicant means any person who applies to the Directorate of Defense Trade Controls for any license or approval required under this subchapter for the export, reexport, or retransfer of defense articles or defense services valued in an amount of $500,000 or more which are being sold commercially to or for the use of the armed forces of a foreign country or international organization. This term also includes a person to whom the required license or approval has been given.
§ 130.3 Armed forces.
Armed forces means the army, navy, marine, air force, or coast guard, as well as the national guard and national police, of a foreign country. This term also includes any military unit or military personnel organized under or assigned to an international organization.
§ 130.4 Defense articles and defense services.
Defense articles and defense services have the meaning given those terms in paragraphs (3), (4) and (7) of section 47 of the Arms Export Control Act (22 U.S.C. 2794 (3), (4), and (7)). When used with reference to commercial sales, the definitions in §§ 120.31 and 120.32 of this subchapter apply.
§ 130.5 Fee or commission.
(a) Fee or commission means, except as provided in paragraph (b) of this section, any loan, gift, donation or other payment of $1,000 or more made, or offered or agreed to be made directly or indirectly, whether in cash or in kind, and whether or not pursuant to a written contract, which is:
(1) To or at the direction of any person, irrespective of nationality, whether or not employed by or affiliated with an applicant, a supplier or a vendor; and
(2) For the solicitation or promotion or otherwise to secure the conclusion of a sale of defense articles or defense services to or for the use of the armed forces of a foreign country or international organization.
(b) The term fee or commission does not include:
(1) A political contribution or a payment excluded by § 130.6 from the definition of political contribution;
(2) A normal salary (excluding contingent compensation) established at an annual rate and paid to a regular employee of an applicant, supplier or vendor;
(3) General advertising or promotional expenses not directed to any particular sale or purchaser; or
(4) Payments made, or offered or agreed to be made, solely for the purchase by an applicant, supplier or vendor of specific goods or technical, operational or advisory services, which payments are not disproportionate in amount with the value of the specific goods or services actually furnished.
§ 130.6 Political contribution.
Political contribution means any loan, gift, donation or other payment of $1,000 or more made, or offered or agreed to be made, directly or indirectly, whether in cash or in kind, which is:
(a) To or for the benefit of, or at the direction of, any foreign candidate, committee, political party, political faction, or government or governmental subdivision, or any individual elected, appointed or otherwise designated as an employee or officer thereof; and
(b) For the solicitation or promotion or otherwise to secure the conclusion of a sale of defense articles or defense services to or for the use of the armed forces of a foreign country or international organization. Taxes, customs duties, license fees, and other charges required to be paid by applicable law or regulation are not regarded as political contributions.
§ 130.7 Supplier.
Supplier means any person who enters into a contract with the Department of Defense for the sale of defense articles or defense services valued in an amount of $500,000 or more under section 22 of the Arms Export Control Act (22 U.S.C. 2762).
§ 130.8 Vendor.
(a) Vendor means any distributor or manufacturer who, directly or indirectly, furnishes to an applicant or supplier defense articles valued in an amount of $500,000 or more which are end-items or major components as defined in § 120.45 of this subchapter. It also means any person who, directly or indirectly, furnishes to an applicant or supplier defense articles or services valued in an amount of $500,000 or more when such articles or services are to be delivered (or incorporated in defense articles or defense services to be delivered) to or for the use of the armed forces of a foreign country or international organization under:
(1) A sale requiring a license or approval from the Directorate of Defense Trade Controls under this subchapter; or
(2) A sale pursuant to a contract with the Department of Defense under section 22 of the Arms Export Control Act (22 U.S.C. 2762).
(b) [Reserved]
§ 130.9 Obligation to furnish information to the Directorate of Defense Trade Controls.
(a)(1) Each applicant must inform the Directorate of Defense Trade Controls as to whether the applicant or its vendors have paid, or offered or agreed to pay, in respect of any sale for which a license or approval is requested:
(i) Political contributions in an aggregate amount of $5,000 or more, or
(ii) Fees or commissions in an aggregate amount of $100,000 or more. If so, applicant must furnish to the Directorate of Defense Trade Controls the information specified in § 130.10. The furnishing of such information or an explanation satisfactory to the Director of the Office of Defense Trade Controls Licensing as to why all the information cannot be furnished at that time is a condition precedent to the granting of the relevant license or approval.
(2) The requirements of this paragraph do not apply in the case of an application with respect to a sale for which all the information specified in § 130.10 which is required by this section to be reported shall already have been furnished.
(b) Each supplier must inform the Directorate of Defense Trade Controls as to whether the supplier or its vendors have paid, or offered or agreed to pay, in respect of any sale:
(1) Political contributions in an aggregate amount of $5,000 or more, or
(2) Fees or commissions in an aggregate amount of $100,000 or more. If so, the supplier must furnish to the Directorate of Defense Trade Controls the information specified in § 130.10. The information required to be furnished pursuant to this paragraph must be so furnished no later than 30 days after the contract award to such supplier, or such earlier date as may be specified by the Department of Defense. For purposes of this paragraph, a contract award includes a purchase order, exercise of an option, or other procurement action requiring a supplier to furnish defense articles or defense services to the Department of Defense for the purposes of § 22 of the Arms Export Control Act (22 U.S.C. 2762).
(c) In determining whether an applicant or its vendors, or a supplier or its vendors, as the case may be, have paid, or offered or agreed to pay, political contributions in an aggregate amount of $5,000 or more in respect of any sale so as to require a report under this section, there must be included in the computation of such aggregate amount any political contributions in respect of the sale which are paid by or on behalf of, or at the direction of, any person to whom the applicant, supplier or vendor has paid, or offered or agreed to pay, a fee or commission in respect of the sale. Any such political contributions are deemed for purposes of this part to be political contributions by the applicant, supplier or vendor who paid or offered or agreed to pay the fee or commission.
(d) Any applicant or supplier which has informed the Directorate of Defense Trade Controls under this section that neither it nor its vendors have paid, or offered or agreed to pay, political contributions or fees or commissions in an aggregate amount requiring the information specified in § 130.10 to be furnished, must subsequently furnish such information within 30 days after learning that it or its vendors had paid, or offered or agreed to pay, political contributions or fees or commissions in respect of a sale in an aggregate amount which, if known to applicant or supplier at the time of its previous communication with the Directorate of Defense Trade Controls, would have required the furnishing of information under § 130.10 at that time. Any report furnished under this paragraph must, in addition to the information specified in § 130.10, include a detailed statement of the reasons why applicant or supplier did not furnish the information at the time specified in paragraph (a) or paragraph (b) of this section, as applicable.
§ 130.10 Information to be furnished by applicant or supplier to the Directorate of Defense Trade Controls.
(a) Every person required under § 130.9 to furnish information specified in this section in respect to any sale must furnish to the Directorate of Defense Trade Controls:
(1) The total contract price of the sale to the foreign purchaser;
(2) The name, nationality, address and principal place of business of the applicant or supplier, as the case may be, and, if applicable, the employer and title;
(3) The name, nationality, address and principal place of business, and if applicable, employer and title of each foreign purchaser, including the ultimate end-user involved in the sale;
(4) Except as provided in paragraph (c) of this section, a statement setting forth with respect to such sale:
(i) The amount of each political contribution paid, or offered or agreed to be paid, or the amount of each fee or commission paid, or offered or agreed to be paid;
(ii) The date or dates on which each reported amount was paid, or offered or agreed to be paid;
(iii) The recipient of each such amount paid, or intended recipient if not yet paid;
(iv) The person who paid, or offered or agreed to pay such amount; and
(v) The aggregate amounts of political contributions and of fees or commission, respectively, which shall have been reported.
(b) In responding to paragraph (a)(4) of this section, the statement must:
(1) With respect to each payment reported, state whether such payment was in cash or in kind. If in kind, it must include a description and valuation thereof. Where precise amounts are not available because a payment has not yet been made, an estimate of the amount offered or agreed to be paid must be provided;
(2) With respect to each recipient, state:
(i) Its name;
(ii) Its nationality;
(iii) Its address and principal place of business;
(iv) Its employer and title; and
(v) Its relationship, if any, to applicant, supplier, or vendor, and to any foreign purchaser or end-user.
(c) In submitting a report required by § 130.9, the detailed information specified in paragraph (a)(4) and (b) of this section need not be included if the payments do not exceed:
(1) $2,500 in the case of political contributions; and
(2) $50,000 in the case of fees or commissions.
(d) Every person required to furnish the information specified in paragraphs (a) and (b) of this section must respond fully to each subdivision of those paragraphs and, where the correct response is “none” or “not applicable,” must so state.
§ 130.11 Supplementary reports.
(a) Every applicant or supplier who is required under § 130.9 to furnish the information specified in § 130.10 must submit a supplementary report in connection with each sale in respect of which applicant or supplier has previously been required to furnish information if:
(1) Any political contributions aggregating $2,500 or more or fees or commissions aggregating $50,000 or more not previously reported or paid, or offered or agreed to be paid by applicant or supplier or any vendor;
(2) Subsequent developments cause the information initially reported to be no longer accurate or complete (as in the case where a payment actually made is substantially different in amount from a previously reported estimate of an amount offered or agreed to be paid); or
(3) Additional details are requested by the Directorate of Defense Trade Controls with respect to any miscellaneous payments reported under § 130.10(c).
(b) Supplementary reports must be sent to the Directorate of Defense Trade Controls within 30 days after the payment, offer or agreement reported therein or, when requested by the Directorate of Defense Trade Controls, within 30 days after such request, and must include:
(1) Any information specified in § 130.10 required or requested to be reported and which was not previously reported; and
(2) The Directorate of Defense Trade Controls license number, if any, and the Department of Defense contract number, if any, related to the sale.
§ 130.12 Information to be furnished by vendor to applicant or supplier.
(a) In order to determine whether it is obliged under § 130.9 to furnish the information specified in § 130.10 with respect to a sale, every applicant or supplier must obtain from each vendor, from or through whom the applicant acquired defense articles or defense services forming the whole or a part of the sale, a full disclosure by the vendor of all political contributions or fees or commission paid, by vendor with respect to such sale. Such disclosure must include responses to all the information pertaining to vendor required to enable applicant or supplier, as the case may be, to comply fully with §§ 130.9 and 130.10. If so required, they must include the information furnished by each vendor in providing the information specified.
(b) Any vendor which has been requested by an applicant or supplier to furnish an initial statement under paragraph (a) of this section must, except as provided in paragraph (c) of this section, furnish such statement in a timely manner and not later than 20 days after receipt of such request.
(c) If the vendor believes that furnishing information to an applicant or supplier in a requested statement would unreasonably risk injury to the vendor’s commercial interests, the vendor may furnish in lieu of the statement an abbreviated statement disclosing only the aggregate amount of all political contributions and the aggregate amount of all fees or commissions which have been paid, or offered or agreed to be paid, or offered or agreed to be paid, by the vendor with respect to the sale. Any abbreviated statement furnished to an applicant or supplier under this paragraph must be accompanied by a certification that the requested information has been reported by the vendor directly to the Directorate of Defense Trade Controls. The vendor must simultaneously report fully to the Directorate of Defense Trade Controls all information which the vendor would otherwise have been required to report to the applicant or supplier under this section. Each such report must clearly identify the sale with respect to which the reported information pertains.
(d)(1) If upon the 25th day after the date of its request to vendor, an applicant or supplier has not received from the vendor the initial statement required by paragraph (a) of this section, the applicant or supplier must submit to the Directorate of Defense Trade Controls a signed statement attesting to:
(i) The manner and extent of applicant’s or supplier’s attempt to obtain from the vendor the initial statement required under paragraph (a) of this section;
(ii) Vendor’s failure to comply with this section; and
(iii) The amount of time which has elapsed between the date of applicant’s or supplier’s request and the date of the signed statement;
(2) The failure of a vendor to comply with this section does not relieve any applicant or supplier otherwise required by § 130.9 to submit a report to the Directorate of Defense Trade Controls from submitting such a report.
§ 130.13 Information to be furnished to applicant, supplier or vendor by a recipient of a fee or commission.
(a) Every applicant or supplier, and each vendor thereof;
(1) In order to determine whether it is obliged under § 130.9 or § 130.12 to furnish information specified in § 130.10 with respect to a sale; and
(2) Prior to furnishing such information, must obtain from each person, if any, to whom it has paid, or offered or agreed to pay, a fee or commission in respect of such sale, a timely statement containing a full disclosure by such a person of all political contributions paid, or offered or agreed to be paid, by it or on its behalf, or at its direction, in respect of such sale. Such disclosure must include responses to all the information required to enable the applicant, supplier or vendor, as the case may be, to comply fully with §§ 130.9, 130.10, and 130.12.
(b) In obtaining information under paragraph (a) of this section, the applicant, supplier or vendor, as the case may be, must also require each person to whom a fee or commission is paid, or offered or agreed to be paid, to furnish from time to time such reports of its political contributions as may be necessary to enable the applicant, supplier or vendor, as the case may be, to comply fully with §§ 130.9, 130.10, 130.11, and 130.12.
(c) The applicant supplier or vendor, as the case may be, must include any political contributions paid, or offered or agreed to be paid, by or on behalf of, or at the direction of, any person to whom it has paid, or offered or agreed to pay a fee or commission in determining whether applicant, supplier or vendor is required by §§ 130.9, 130.11, and 130.12 to furnish information specified in § 130.10.
§ 130.14 Recordkeeping.
Each applicant, supplier and vendor must maintain a record of any information it was required to furnish or obtain under this part and all records upon which its reports are based for a period of not less than five years following the date of the report to which they pertain.
§ 130.15 Confidential business information.
(a) Any person who is required to furnish information under this part may identify any information furnished hereunder which the person considers to be confidential business information. No person, including any applicant or supplier, shall publish, divulge, disclose, or make known in any manner, any information so identified by a vendor or other person unless authorized by law or regulation.
(b) For purposes of this section, confidential business information means commercial or financial information which by law is entitled to protection from disclosure. (See, e.g., 5 U.S.C. 552(b) (3) and (4); 18 U.S.C. 1905; 22 U.S.C. 2778(e); Rule 26(c)(7), Federal Rules of Civil Procedure.)
§ 130.16 Other reporting requirements.
The submission of reports under this part does not relieve any person of any requirements to furnish information to any federal, state, or municipal agency, department or other instrumentality as required by law, regulation or contract.
§ 130.17 Utilization of and access to reports and records.
(a) All information reported and records maintained under this part will be made available, upon request for utilization by standing committees of the Congress and subcommittees thereof, and by United States Government agencies, in accordance with § 39(d) of the Arms Export Control Act (22 U.S.C. 2779(d)), and reports based upon such information will be submitted to Congress in accordance with sections 36(a)(7) and 36(b)(1) of that Act (22 U.S.C. 2776(a)(7) and (b)(1)) or any other applicable law.
(b) All confidential business information provided pursuant to this part shall be protected against disclosure to the extent provided by law.
(c) Nothing in this section shall preclude the furnishing of information to foreign governments for law enforcement or regulatory purposes under international arrangements between the United States and any foreign government.
SUBCHAPTER N – MISCELLANEOUS
PART 131 – CERTIFICATES OF AUTHENTICATION
§ 131.1 Certification of documents.
The Authentication Officer, Acting Authentication Officer, or any Assistant Authentication Officer designated by either of the former officers may, and is hereby authorized to, sign and issue certificates of authentication under the seal of the Department of State for and in the name of the Secretary of State or the Acting Secretary of State. The form of authentication shall be as follows:
In testimony whereof, I, ____________________, Secretary of State have hereunto caused the seal of the Department of State to be affixed and my name subscribed by the Authentication Officer, Acting Authentication Officer, or an Assistant Authentication Officer, of the said Department, at________. in ____________, this ________________ day of ________________ 19____
§ 131.2 Refusal of certification for unlawful purpose.
(a) The Department will not certify to a document when it has good reason to believe that the certification is desired for an unlawful or improper purpose. It is therefore the duty of the Authentication Officer to examine not only the document which the Department is asked to authenticate, but also the fundamental document to which previous seals or other certifications may have been affixed by other authorities. The Authentication Officer shall request such additional information as may be necessary to establish that the requested authentication will serve the interests of justice and is not contrary to public policy.
(b) In accordance with section 3, paragraph 5 of the Export Administration Act of 1969 (83 Stat. 841, Pub. L. 91-184) approved December 30, 1969, documents which have the effect of furthering or supporting the restrictive trade practices or boycotts fostered or imposed by foreign countries against countries friendly to the United States shall be considered contrary to public policy for purposes of these regulations.
PART 132 – BOOKS, MAPS, NEWSPAPERS, ETC.
§ 132.1 Purchase.
The purchase by the Department of State of books, maps, newspapers, periodicals, and other publications shall be made without regard to the provisions of the act approved March 3, 1933 (sec. 2, 47 Stat. 1520; 41 U.S.C. 10a), since determination has been made by the Secretary, as permitted by the provisions of the act, that such purchase is inconsistent with the public interest.
PART 133 – GOVERNMENTWIDE REQUIREMENTS FOR DRUG-FREE WORKPLACE (FINANCIAL ASSISTANCE)
Subpart A – Purpose and Coverage
§ 133.100 What does this part do?
This part carries out the portion of the Drug-Free Workplace Act of 1988 (41 U.S.C. 701 et seq., as amended) that applies to grants. It also applies the provisions of the Act to cooperative agreements and other financial assistance awards, as a matter of Federal Government policy.
§ 133.105 Does this part apply to me?
(a) Portions of this part apply to you if you are either –
(1) A recipient of an assistance award from the Department of State; or
(2) A Department of State awarding official. (See definitions of award and recipient in §§ 133.605 and 133.660, respectively.)
(b) The following table shows the subparts that apply to you:
| If you are . . . | see subparts . . . |
|---|---|
| (1) A recipient who is not an individual | A, B and E. |
| (2) A recipient who is an individual | A, C and E. |
| (3) A Department of State awarding official | A, D and E. |
§ 133.110 Are any of my Federal assistance awards exempt from this part?
This part does not apply to any award that the Procurement Executive determines that the application of this part would be inconsistent with the international obligations of the United States or the laws or regulations of a foreign government.
§ 133.115 Does this part affect the Federal contracts that I receive?
It will affect future contract awards indirectly if you are debarred or suspended for a violation of the requirements of this part, as described in § 133.510(c). However, this part does not apply directly to procurement contracts. The portion of the Drug-Free Workplace Act of 1988 that applies to Federal procurement contracts is carried out through the Federal Acquisition Regulation in chapter 1 of Title 48 of the Code of Federal Regulations (the drug-free workplace coverage currently is in 48 CFR part 23, subpart 23.5).
Subpart B – Requirements for Recipients Other Than Individuals
§ 133.200 What must I do to comply with this part?
There are two general requirements if you are a recipient other than an individual.
(a) First, you must make a good faith effort, on a continuing basis, to maintain a drug-free workplace. You must agree to do so as a condition for receiving any award covered by this part. The specific measures that you must take in this regard are described in more detail in subsequent sections of this subpart. Briefly, those measures are to –
(1) Publish a drug-free workplace statement and establish a drug-free awareness program for your employees (see §§ 133.205 through 133.220); and
(2) Take actions concerning employees who are convicted of violating drug statutes in the workplace (see § 133.225).
(b) Second, you must identify all known workplaces under your Federal awards (see § 133.230).
§ 133.205 What must I include in my drug-free workplace statement?
You must publish a statement that –
(a) Tells your employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in your workplace;
(b) Specifies the actions that you will take against employees for violating that prohibition; and
(c) Lets each employee know that, as a condition of employment under any award, he or she:
(1) Will abide by the terms of the statement; and
(2) Must notify you in writing if he or she is convicted for a violation of a criminal drug statute occurring in the workplace and must do so no more than five calendar days after the conviction.
§ 133.210 To whom must I distribute my drug-free workplace statement?
You must require that a copy of the statement described in § 133.205 be given to each employee who will be engaged in the performance of any Federal award.
§ 133.215 What must I include in my drug-free awareness program?
You must establish an ongoing drug-free awareness program to inform employees about –
(a) The dangers of drug abuse in the workplace;
(b) Your policy of maintaining a drug-free workplace;
(c) Any available drug counseling, rehabilitation, and employee assistance programs; and
(d) The penalties that you may impose upon them for drug abuse violations occurring in the workplace.
§ 133.220 By when must I publish my drug-free workplace statement and establish my drug-free awareness program?
If you are a new recipient that does not already have a policy statement as described in § 133.205 and an ongoing awareness program as described in § 133.215, you must publish the statement and establish the program by the time given in the following table:
| If . . . | then you . . . |
|---|---|
| (a) The performance period of the award is less than 30 days | must have the policy statement and program in place as soon as possible, but before the date on which performance is expected to be completed. |
| (b) The performance period of the award is 30 days or more | must have the policy statement and program in place within 30 days after award. |
| (c) You believe there are extraordinary circumstances that will require more than 30 days for you to publish the policy statement and establish the awareness program | may ask the Department of State awarding official to give you more time to do so. The amount of additional time, if any, to be given is at the discretion of the awarding official. |
§ 133.225 What actions must I take concerning employees who are convicted of drug violations in the workplace?
There are two actions you must take if an employee is convicted of a drug violation in the workplace:
(a) First, you must notify Federal agencies if an employee who is engaged in the performance of an award informs you about a conviction, as required by § 133.205(c)(2), or you otherwise learn of the conviction. Your notification to the Federal agencies must__
(1) Be in writing;
(2) Include the employee’s position title;
(3) Include the identification number(s) of each affected award;
(4) Be sent within ten calendar days after you learn of the conviction; and
(5) Be sent to every Federal agency on whose award the convicted employee was working. It must be sent to every awarding official or his or her official designee, unless the Federal agency has specified a central point for the receipt of the notices.
(b) Second, within 30 calendar days of learning about an employee’s conviction, you must either__
(1) Take appropriate personnel action against the employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973 (29 U.S.C. 794), as amended; or
(2) Require the employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for these purposes by a Federal, State or local health, law enforcement, or other appropriate agency.
§ 133.230 How and when must I identify workplaces?
(a) You must identify all known workplaces under each Department of State award. A failure to do so is a violation of your drug-free workplace requirements. You may identify the workplaces__
(1) To the Department of State official that is making the award, either at the time of application or upon award; or
(2) In documents that you keep on file in your offices during the performance of the award, in which case you must make the information available for inspection upon request by Department of State officials or their designated representatives.
(b) Your workplace identification for an award must include the actual address of buildings (or parts of buildings) or other sites where work under the award takes place. Categorical descriptions may be used (e.g., all vehicles of a mass transit authority or State highway department while in operation, State employees in each local unemployment office, performers in concert halls or radio studios).
(c) If you identified workplaces to the Department of State awarding official at the time of application or award, as described in paragraph (a)(1) of this section, and any workplace that you identified changes during the performance of the award, you must inform the Department of State awarding official.
Subpart C – Requirements for Recipients Who Are Individuals
§ 133.300 What must I do to comply with this part if I am an individual recipient?
As a condition of receiving a Department of State award, if you are an individual recipient, you must agree that –
(a) You will not engage in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance in conducting any activity related to the award; and
(b) If you are convicted of a criminal drug offense resulting from a violation occurring during the conduct of any award activity, you will report the conviction:
(1) In writing.
(2) Within 10 calendar days of the conviction.
(3) To the Department of State awarding official or other designee for each award that you currently have, unless § 133.301 or the award document designates a central point for the receipt of the notices. When notice is made to a central point, it must include the identification number(s) of each affected award.
§ 133.301 [Reserved]
Subpart D – Responsibilities of Department of State Awarding Officials
§ 133.400 What are my responsibilities as a Department of State awarding official?
As a Department of State awarding official, you must obtain each recipient’s agreement, as a condition of the award, to comply with the requirements in –
(a) Subpart B of this part, if the recipient is not an individual; or
(b) Subpart C of this part, if the recipient is an individual.
Subpart E – Violations of this Part and Consequences
§ 133.500 How are violations of this part determined for recipients other than individuals?
A recipient other than an individual is in violation of the requirements of this part if the Procurement Executive determines, in writing, that –
(a) The recipient has violated the requirements of subpart B of this part; or
(b) The number of convictions of the recipient’s employees for violating criminal drug statutes in the workplace is large enough to indicate that the recipient has failed to make a good faith effort to provide a drug-free workplace.
§ 133.505 How are violations of this part determined for recipients who are individuals?
An individual recipient is in violation of the requirements of this part if the Procurement Executive determines, in writing, that –
(a) The recipient has violated the requirements of subpart C of this part; or
(b) The recipient is convicted of a criminal drug offense resulting from a violation occurring during the conduct of any award activity.
§ 133.510 What actions will the Federal Government take against a recipient determined to have violated this part?
If a recipient is determined to have violated this part, as described in § 133.500 or § 133.505, the Department of State may take one or more of the following actions –
(a) Suspension of payments under the award;
(b) Suspension or termination of the award; and
(c) Suspension or debarment of the recipient under 2 CFR part 601, for a period not to exceed five years.
§ 133.515 Are there any exceptions to those actions?
The Procurement Executive may waive with respect to a particular award, in writing, a suspension of payments under an award, suspension or termination of an award, or suspension or debarment of a recipient if the Procurement Executive determines that such a waiver would be in the public interest. This exception authority cannot be delegated to any other official.
Subpart F – Definitions
§ 133.605 Award.
Award means an award of financial assistance by the Department of State or other Federal agency directly to a recipient.
(a) The term award includes:
(1) A Federal grant or cooperative agreement, in the form of money or property in lieu of money.
(2) A block grant or a grant in an entitlement program, whether or not the grant is exempted from coverage under the Governmentwide rule 22 CFR part 135 that implements OMB Circular A-102 (for availability, see 5 CFR 1310.3) and specifies uniform administrative requirements.
(b) The term award does not include:
(1) Technical assistance that provides services instead of money.
(2) Loans.
(3) Loan guarantees.
(4) Interest subsidies.
(5) Insurance.
(6) Direct appropriations.
(7) Veterans’ benefits to individuals (i.e., any benefit to veterans, their families, or survivors by virtue of the service of a veteran in the Armed Forces of the United States).
§ 133.610 Controlled substance.
Controlled substance means a controlled substance in schedules I through V of the Controlled Substances Act (21 U.S.C. 812), and as further defined by regulation at 21 CFR 1308.11 through 1308.15.
§ 133.615 Conviction.
Conviction means a finding of guilt (including a plea of nolo contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes.
§ 133.620 Cooperative agreement.
Cooperative agreement means an award of financial assistance that, consistent with 31 U.S.C. 6305, is used to enter into the same kind of relationship as a grant (see definition of grant in § 133.650), except that substantial involvement is expected between the Federal agency and the recipient when carrying out the activity contemplated by the award. The term does not include cooperative research and development agreements as defined in 15 U.S.C. 3710a.
§ 133.625 Criminal drug statute.
Criminal drug statute means a Federal or non-Federal criminal statute involving the manufacture, distribution, dispensing, use, or possession of any controlled substance.
§ 133.630 Debarment.
Debarment means an action taken by a Federal agency to prohibit a recipient from participating in Federal Government procurement contracts and covered nonprocurement transactions. A recipient so prohibited is debarred, in accordance with the Federal Acquisition Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, Government-wide Debarment and Suspension (Nonprocurement), that implements Executive Order 12549 and Executive Order 12689.
§ 133.635 Drug-free workplace.
Drug-free workplace means a site for the performance of work done in connection with a specific award at which employees of the recipient are prohibited from engaging in the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance.
§ 133.640 Employee.
(a) Employee means the employee of a recipient directly engaged in the performance of work under the award, including –
(1) All direct charge employees;
(2) All indirect charge employees, unless their impact or involvement in the performance of work under the award is insignificant to the performance of the award; and
(3) Temporary personnel and consultants who are directly engaged in the performance of work under the award and who are on the recipient’s payroll.
(b) This definition does not include workers not on the payroll of the recipient (e.g., volunteers, even if used to meet a matching requirement; consultants or independent contractors not on the payroll; or employees of subrecipients or subcontractors in covered workplaces).
§ 133.645 Federal agency or agency.
Federal agency or agency means any United States executive department, military department, government corporation, government controlled corporation, any other establishment in the executive branch (including the Executive Office of the President), or any independent regulatory agency.
§ 133.650 Grant.
Grant means an award of financial assistance that, consistent with 31 U.S.C. 6304, is used to enter into a relationship –
(a) The principal purpose of which is to transfer a thing of value to the recipient to carry out a public purpose of support or stimulation authorized by a law of the United States, rather than to acquire property or services for the Federal Government’s direct benefit or use; and
(b) In which substantial involvement is not expected between the Federal agency and the recipient when carrying out the activity contemplated by the award.
§ 133.655 Individual.
Individual means a natural person.
§ 133.660 Recipient.
Recipient means any individual, corporation, partnership, association, unit of government (except a Federal agency) or legal entity, however organized, that receives an award directly from a Federal agency.
§ 133.665 State.
State means any of the States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or possession of the United States.
§ 133.670 Suspension.
Suspension means an action taken by a Federal agency that immediately prohibits a recipient from participating in Federal Government procurement contracts and covered nonprocurement transactions for a temporary period, pending completion of an investigation and any judicial or administrative proceedings that may ensue. A recipient so prohibited is suspended, in accordance with the Federal Acquisition Regulation for procurement contracts (48 CFR part 9, subpart 9.4) and the common rule, Government-wide Debarment and Suspension (Nonprocurement), that implements Executive Order 12549 and Executive Order 12689. Suspension of a recipient is a distinct and separate action from suspension of an award or suspension of payments under an award.
PART 134 – EQUAL ACCESS TO JUSTICE ACT; IMPLEMENTATION
Subpart A – General Provisions
§ 134.1 Purpose of these rules.
The Equal Access to Justice Act, 5 U.S.C. 504 (called “the Act” in this part), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (called “adversary adjudications”) before the Department of State. An eligible party may receive an award when it prevails over the Department of State, unless the Department of State’s position in the proceeding was substantially justified or special circumstances make an award unjust. The rules in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that the Department will observe to make them.
§ 134.2 When the Act applies.
The Act applies to any adversary adjudication pending before the Department of State at any time between October 1, 1981 and September 30, 1984. This includes proceedings begun before October 1, 1981 if final agency action has not been taken before that date, and proceedings pending on September 30, 1984, regardless of when they were initiated or when final agency action occurs.
§ 134.3 Proceedings covered.
(a) The Act applies to adversary adjudications conducted by the Department of State. These are adjudications under 5 U.S.C. 554 in which the position of the Department of State is presented by an attorney or other representative who enters an appearance and participates in the proceeding. For the Department of State, the type of proceeding covered are proceedings relative to controlling export of defense articles through administrative sanctions pursuant to 22 U.S.C. 2778 and 50 U.S.C. App. 2410 (c)(2)(B).
(b) The Department of State may also designate a proceeding not listed in paragraph (a) of this section as an adversary adjudication for purposes of the Act by so stating in an order initiating the proceeding or designating the matter for hearing. The failure to designate a proceeding as an adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding is covered by the Act; whether the proceeding is covered will then be an issue for resolution in proceedings on the application.
(c) If a proceeding includes matters covered by the Act and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues.
§ 134.4 Eligibility of applicants.
(a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a party to the adversary adjudication for which it seeks an award. The term “party” is defined in 5 U.S.C. 551(3). The applicant must show by clear and convincing evidence that it meets all conditions of eligibility set out in this subpart and in subpart B and must submit additional information to verify its eligibility upon order by the adjudicative officer.
(b) The types of eligible applicants are as follows:
(1) An individual with a net worth of not more than $1 million;
(2) The sole owner of an unincorporated business who has a net worth of not more than $5 million, including both personal and business interests, and not more than 500 employees;
(3) A charitable or other tax-exempt organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees;
(4) A cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 employees; and
(5) Any other partnership, corporation, association, or public or private organization with a net worth of not more than $5 million and not more than 500 employees.
(c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated.
(d) An applicant who owns an unincorporated business will be considered as an “individual” rather than a “sole owner of an unincorporated business” if the issues on which the applicant prevails are related primarily to personal interests rather than to business interests.
(e) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant’s direction and control. Part-time employees shall be included on a proportional basis.
(f) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine eligibility. Any individual, corporation or other entity that directly or indirectly controls or owns a majority of the voting shares or other interest of the applicant, or any corporation or other entity of which the applicant directly or indirectly owns or controls a majority of the voting shares or other interest, will be considered an affiliate for purposes of this part, unless the adjudicative officer determines that such treatment would be unjust and contrary to the purposes of the Act in light of the actual relationship between the affiliated entities. In addition, the adjudicative officer may determine that financial relationships of the applicant other than those described in this paragraph constitute special circumstances that would make an award unjust.
(g) An applicant that participates in a proceeding primarily on behalf of one or more other persons or entities that would be ineligible is not itself eligible for an award.
§ 134.5 Standard for awards.
(a) A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding, or in a significant and discrete substantive portion of the proceeding, unless the position of the agency over which the applicant has prevailed was substantially justified. The burden of proof that an award should not be made to an eligible prevailing applicant is on the Department of State which may avoid an award by showing that its position was reasonable in law and fact.
(b) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust.
§ 134.6 Allowable fees and expenses.
(a) Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents and expert witnesses, even if the services were made available without charge or at a reduced rate to the applicant.
(b) No award for the fee of an attorney or agent under these rules may exceed $75.00 per hour. No award to compensate an expert witness may exceed the highest rate at which the Department of State pays expert witnesses, which is generally $50.00 per hour. However, an award may also include the reasonable expenses of the attorney, agent or witness as a separate item, if the attorney, agent or witness ordinarily charges clients separately for such expenses.
(c) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the adjudicative officer shall consider the following:
(1) If the attorney, agent or witness is in private practice, his or her customary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services;
(2) The prevailing rate for similar services in the community in which the attorney, agent or witness ordinarily performs services;
(3) The time actually spent in the representation of the applicant;
(4) the time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and
(5) Such other factors as may bear on the value of the services provided.
(d) The reasonable cost of any study, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of applicant’s case.
§ 134.7 Rulemaking on maximum rates for attorney fees.
(a) If warranted by an increase in the cost of living or by special circumstances (such as limited availability of attorneys qualified to handle certain types of proceedings), the Department of State may adopt regulations providing that attorney fees may be awarded at a rate higher than $75 per hour in some or all of the types of proceedings covered by this part. The Department of State will conduct any rulemaking proceedings for this purpose under the informal rulemaking procedures of the Administrative Procedure Act.
(b) Any person may request the Department of State to initiate a rulemaking proceeding to increase the maximum rate for attorney fees. The request should identify the rate the person believes the Department of State should establish and the types of proceedings in which the rate should be used. It should also explain fully the reasons why the higher rate is warranted. The Department of State will respond to the request within 60 days after it is filed, by determining to initiate a rulemaking proceeding, denying the request, or taking other appropriate action.
The Department of State official who renders the final agency decision in a covered proceeding is authorized to take final action on matters pertaining to the Equal Access to Justice Act as applied to the proceeding.
Subpart B – Information Required From Applicants
§ 134.11 Contents of application.
(a) An application for an award of fees and expenses under the Act shall identify the applicant and the proceeding for which an award is sought. The application shall show that the applicant has prevailed and identify the position of the Department of State in the proceeding that the applicant alleges was not substantially justified. Unless the applicant is an individual, the application shall also state the number of employees of the applicant and describe briefly the type and purpose of its organization or business.
(b) The application shall also include a statement that the applicant’s net worth does not exceed $1 million (if an individual) or $5 million (for all other applicants, including their affiliates). However, an applicant may omit this statement if:
(1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) or, in the case of a tax-exempt organization not required to obtain a ruling from the Internal Revenue Service on its exempt status, a statement that describes the basis for the applicant’s belief that it qualfies under such section; or
(2) It states on the application that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)).
(c) The application shall state the amount of fees and expenses for which an award is sought.
(d) The application may also include any other matters that the applicant wishes the Department of State to consider in determining whether and in what amount an award should be made.
(e) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of prejury that the information provided in the application is true and correct.
§ 134.12 Net worth exhibit.
(a) Each applicant except a qualifed tax-exempt organization or cooperative association must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as defined in § 960.4(f)) when the proceeding was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant’s and its affiliates’ assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in his part. The adjudicative officer may require an applicant to file additional information to determine its eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may submit that portion of the exhibit directly to the adjudicative officer in a sealed envelope labeled “Confidential Financial Information”, accompanied by a motion to withhold the information from public disclosure. The motion shall describe the information sought to be withheld and explain, in detail, why it falls within one or more of the specific exemptions from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 551(b) (1)-(9), why public disclosure of the information would adversely affect the applicant, and why disclosure is not required in the public interest. The material in question shall be served on counsel representing the agency against which the applicant seeks an award, but need not be served on any other party to the proceeding. If the adjudicative officer finds that the information should not be withheld from disclosure, it shall be placed in the public record of the proceeding. Otherwise, any request to inspect or copy the exhibit shall be disposed of in accordance with the Department of State established procedures under the Freedom of Information Act, part 6 of this title.
§ 134.13 Documentation of fees and expenses.
The application shall be accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test project or similar matter, for which an award is sought. A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the specific services performed, the rate at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by any other person or entity for the services provided. The adjudicative officer may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed.
§ 134.14 When application may be filed.
(a) An application may be filed whenever the applicant has prevailed in the proceeding or in a significant and discrete substantive portion of the proceeding, but in no case later than 30 days after the Department of State’s final disposition of the proceeding.
(b) If review or reconsideration is sought or taken of a decision as to which an applicant believes it has prevailed, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy.
(c) For purposes of this rule, final disposition means the later of (1) the date on which an initial decision or other recommended disposition of the merits of the proceeding by an adjudicative officer or intermediate review board becomes administratively final; (2) issuance of an order disposing of any petitions for reconsideration of the Department of State’s final order in the proceeding; (3) if no petition for reconsideration is filed, the last date on which such a petition could have been filed; or (4) issuance of a final order or any other final resolution of a proceeding, such as a settlement or voluntary dismissal, which is not subject to a petition for reconsideration or to a petition for judicial review; or (5) completion of judicial action on the underlying controversy and any subsequent Department of State action pursuant to judicial mandate.
Subpart C – Procedures for Considering Applications
§ 134.21 Filing and service of documents.
Any application for an award or other pleading or document related to an application shall be filed and served on all parties to the proceeding in the same manner as other pleadings in the proceeding, except as provided in § 134.12(b) for confidential financial information.
§ 134.22 Answer to application.
(a) Within 30 days after service of an application, counsel representing the Department of State may file an answer to the application. Unless the Department of State counsel requests an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of this section, failure to file an answer within the 30 day period may be treated as a consent to the award requested.
(b) If the Department of State counsel and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted by the adjudicative officer upon request by Department of State counsel and the applicant.
(c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of the Department of State position. If the answer is based on any alleged facts not already in the record of the proceeding the Department of State shall include with the answer either supporting affidavits or a request for further proceedings under § 134.26.
§ 134.23 Reply.
Within 15 days after service of an answer, the applicant may file a reply. If the reply is based on any alleged facts not already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under § 134.26.
§ 134.24 Comments by other parties.
Any party to a proceeding other than the applicant and Department of State may file comments on an application within 30 days after it is served or on an answer within 15 days after it is served. A commenting party may not participate further in proceedings on the application unless the adjudicative officer determines that the public interest requires such participation in order to permit full exploration of matters raised in the comment.
§ 134.25 Settlement.
The applicant and the Department of State may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying proceeding, or after the underlying proceeding has been concluded. If a prevailing party and Department of State counsel agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement.
§ 134.26 Further proceedings.
(a) Ordinarily, the determination of an award will be made on the basis of the written record. However, on request of either the applicant or Department of State counsel, or on his or her own initiative, the adjudicative officer may order further proceedings, such as an informal conference, oral argument, additional written submissions, or an evidentiary hearing. Such further proceedings shall be held only when necessary for full and fair resolution of the issues arising from the application, and shall be conducted as promptly as possible.
(b) A request that the adjudicative officer order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues.
§ 134.27 Decision.
The adjudicative officer shall issue an initial decision on the application as promptly as possible after completion of proceedings on the application. The decision shall include written fundings and conclusions on the applicant’s eligibility and status as a prevailing party, and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the Department of State position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. If the applicant has sought an award against the Department of State and another agency, the decision shall allocate responsibility for payment of any award made between the Department of State and the other agency, and shall explain the reasons for the allocation made.
§ 134.28 Further Department of State review.
Either the applicant or Department of State counsel may seek review of the initial decision. If neither the applicant nor the Department of State counsel seeks review, the initial decision shall become a final decision of the Department of State 30 days after it is issued. If review is taken the Judicial Officer will issue a final decision on the application or remand the application to the adjudicative officer for further proceedings.
§ 134.29 Judicial review.
Judicial review of final Department of State decisions on awards as may be sought as provided in 5 U.S.C. 504(c)(2).
§ 134.30 Payment of award.
An applicant seeking payment of an award shall submit to the Comptroller or other disbursing official of the Department of State a copy of the final decision granting the award accompanied by a statement that the applicant will not seek review of the decision in the United States courts. Requests for payment should be sent to: Executive Director, Office of the Comptroller, Room 1328, Department of State, 2201 C Street, NW., Washington, DC 20520. The Department of State will pay the amount awarded to the applicant within 60 days, unless judicial review of the award or of the underlying decision of the adversary adjudication has been sought by the applicant or any other party to the proceeding.
PART 135 – IMPLEMENTATION OF THE HAVANA ACT OF 2021
§ 135.1 Authority.
(a) Under section 3 of the HAVANA Act of 2021 (Pub. L. 117-46), codified in 22 U.S.C. 2680b(i), the Secretary of State or other agency heads may provide a payment for a qualifying injury to the brain to a covered employee or covered dependent, who incurred a qualifying injury to the brain on or after January 1, 2016. The authority to provide such payments is at the sole discretion of the Secretary or their designee.
(b) These regulations are issued in accordance with 22 U.S.C. 2680b(i)(4) and also apply to former covered employees of the Department of State and their covered dependents.
(c) For current employees of the Department of State (hereinafter, “the Department”), applicable procedures are located in the Foreign Affairs Manual (3 FAM 3660 and its subchapters).
§ 135.2 Definitions.
For purposes of this part, the following definitions apply:
Covered employee. (1) An employee of the Department who, on or after January 1, 2016, becomes injured by reason of a qualifying injury to the brain.
(2) The following are considered employees of the Department (see procedures in 3 FAM 3660 and its subchapters) for the purposes of this part: Department of State Foreign Service Officers; Department of State Foreign Service Specialists; Department of State Civil Service employees; Consular Affairs – Appointment Eligible Family Member Adjudicator positions; Expanded Professional Associates Program members; Family Member Appointments; Foreign Service Family Reserve Corps; employees on Limited Non-Career Appointments; Temporary Appointments; students providing volunteer services under 5 U.S.C. 3111; personnel on a Personal Services Contract; Locally Employed Staff, whether employed on a Personal Services Agreement, Personal Services Contract, or appointed to the position; and Embassy Science Fellows, unless they are an employee of another Federal agency.
(3) The following are not considered employees of the Department for purposes of these regulations (see § 135.4): employees or retired employees of other agencies.
Covered dependent: A family member of a Department current or former employee who, on or after January 1, 2016, becomes injured by reason of a qualifying injury to the brain while the dependent’s sponsor was a covered employee of the Department.
Covered individual: A former employee of the Department who, on or after January 1, 2016, becomes injured by reason of a qualifying injury to the brain while they were a covered employee of the Department.
Family member: For purposes of determining “covered dependent”, a family member is defined as follows:
(1) Children who are unmarried and under 21 years of age or, regardless of age, are unmarried and due to mental and/or physical limitations are incapable of self-support. The term “children” must include natural offspring, step-children, adopted children, and those under permanent legal guardianship (at least until age 18), or comparable permanent custody arrangement, of the employee or spouse or domestic partner (as defined in 3 FAM 1610) when dependent upon and normally residing with the guardian or custodial party, and U.S. citizen children placed for adoption if a U.S. court grants temporary guardianship of the child to the employee and specifically authorizes the child to reside with the employee in the country of assignment before the adoption is finalized;
(2) Parents (including stepparents and legally adoptive parents) of the employee or of the spouse or of the domestic partner as defined in 3 FAM 1610.
(3) Sisters and brothers (including stepsisters or stepbrothers, or adoptive sisters or brothers) of the employee, or of the spouse when such sisters and brothers are at least 51 percent dependent on the employee for support, unmarried and under 21 years of age, or regardless of age, are physically and/or mentally incapable of self-support; and
(4) Spouse.
Qualifying injury to the brain. (1) The injury must have occurred in connection with war, insurgency, hostile act, terrorist activity, or other incidents designated by the Secretary of State, and that was not the result of the willful misconduct of the covered individual; and
(2) The individual must have:
(i) An acute injury to the brain such as, but not limited to, a concussion, penetrating injury, or as the consequence of an event that leads to permanent alterations in brain function as demonstrated by confirming correlative findings on imaging studies (to include computed tomography scan (CT) or magnetic resonance imaging scan (MRI)) or electroencephalogram (EEG); or
(ii) A medical diagnosis of a traumatic brain injury (TBI) that required active medical treatment for 12 months or more; or
(iii) Acute onset of new persistent, disabling neurologic symptoms as demonstrated by confirming correlative findings on imaging studies (to include CT or MRI), or EEG, or physical exam, or other appropriate testing, and that required active medical treatment for 12 months or more.
Other incident: A new onset of physical manifestations that cannot otherwise be readily explained.
§ 135.3 Eligibility for payments by the Department of State.
(a) The Department of State may provide a payment to covered individuals, as defined in this part, if the qualifying injury to the brain was assessed and diagnosed in person by a currently board-certified physician from the American Board of Psychiatry and Neurology (ABPN), the American Osteopathic Board of Neurology and Psychiatry (AOBNP), the American Board of Physical Medicine and Rehabilitation (ABPMR), or the American Osteopathic Board of Physical Medicine and Rehabilitation (AOBPMR); occurred on or after January 1, 2016; and while the individual was a covered employee of the Department.
(b) The Department of State may provide a payment to covered employees, as defined in this part, if the qualifying injury to the brain was assessed and diagnosed in person by a currently board-certified physician from the ABPN, AOBNP, ABPMR, or AOBPMR; occurred on or after January 1, 2016; and while the employee was a covered employee of the Department.
(c) The Department of State may provide a payment to a covered dependent, if the qualifying injury to the brain was assessed and diagnosed in person by a currently board-certified physician from the ABPN, AOBNP, ABPMR, or AOBPMR; occurred on or after January 1, 2016; and the dependent’s sponsor was a covered employee of the Department at the time of the dependent’s injury.
(d) Payment for a qualifying injury to the brain will be a non-taxable, one-time lump sum payment.
(e) The Department will determine the amount paid to each eligible person based on the following factors:
(1) The responses on the DS-4316, “Eligibility Questionnaire for HAVANA Act Payments”; and
(2) Whether the Department of Labor (Workers’ Compensation) has determined that the requester has no reemployment potential; or the Social Security Administration has approved the requester for either Social Security Disability Insurance or Supplemental Security Insurance (SSI) benefits; or the requester’s ABPN, AOBNP, ABPMR, or AOBPMR board-certified physician has certified that the individual requires a full-time caregiver for activities of daily living, as defined by the Katz Index of Independence of Daily Living.
(3) The award thresholds are based on Level III of the Senior Executive Schedule: Base will be 75 percent of Level III pay, and Base+ will be 100 percent of Level III pay. If the requestor meets any of the criteria listed in paragraph (e)(2) of this section, the requestor will be eligible to receive a Base+ payment. Requestors whose neurologists confirm that the definition of “qualifying injury to the brain” has been met but have not met any of the criteria listed paragraph (e)(2) of this section, will be eligible to receive a Base payment. If a requestor who received a Base payment later s meets any of the criteria listed in paragraph (e)(2) of this section, the requestor may apply for an additional payment that will be the difference between the Base and Base+ payment.
(f) The Under Secretary of State for Management may approve payments under the rule. The Bureau of Global Talent Management (GTM) will notify individuals of the decision in writing.
(g) An appeal of a decision made by the Under Secretary of State for Management may be directed to the Deputy Secretary of State for Management and Resources in writing. The Deputy Secretary of State for Management and Resources is the final appeal authority. GTM will notify individuals of the decision in writing.
§ 135.4 Consultation with other agencies.
(a) The Department of State will, to the extent possible, consult with the appropriate officials in other federal agencies to identify their current and former covered employees, and current and former dependents who reported an anomalous health incident while working under Chief of Mission authority. This consultation is solely to assist the other agencies in determining who might be initially eligible for payment under the HAVANA Act. The Department of State will not process payment for employees, former employees, or dependents of current or former employees of other agencies.
(b) Under the HAVANA Act, the heads of other employing federal agencies are responsible for prescribing regulations to carry out the HAVANA Act, including regulations for approving any payment.
PART 136 – PERSONAL PROPERTY DISPOSITION AT POSTS ABROAD
§ 136.1 Purpose.
The primary purpose of these regulations is to ensure that employees and members of their families do not profit personally from sales or other transactions with persons who are not themselves entitled to exemption from import restrictions, duties, or taxes.
§ 136.2 Authority.
Section 303(a) of the State Department Basic Authorities Act of 1956 authorizes the Secretary of State to issue regulations to carry out the purposes of title III of that Act.
§ 136.3 Definitions.
(a) Basis of an item shall include the initial price paid (or retail value at the time of acquisition if acquired by gift), inland and overseas transportation costs (if not reimbursed by the United States Government), shipping insurance, taxes, customs fees, duties or other charges, and capital improvements, but shall not include insurance on an item while in use or storage, maintenance, repair or related costs, or financing charges.
(b) Charitable contribution means a contribution or gift as defined in section 170(c) of the Internal Revenue Code, or other similar contribution or gift to a bona fide charitable foreign entity as determined pursuant to policies, rules or procedures issued by the chief of mission pursuant to § 136.5(b).
(c) Chief of mission has the meaning given such term by section 102(e) of the Foreign Service Act of 1980 (22 U.S.C. 2902(3).
(d) Contractor means: (1) An individual employed by personal services contract pursuant to section 2(c) of the State Department Basic Authorities Act of 1956 (22 U.S.C. 2669(c)), pursuant to section 636(a)(3) of the Foreign Assistance Act of 1961 (22 U.S.C. 2396(a)(3)), or pursuant to any other similar authority including, in the case of an organization performing services under such authority, an individual involved in the performance of such service; and (2) any other individual or firm that enjoys exemptions from import limitations, customs duties or taxes on personal property from a foreign country in connection with performance of a contract for goods or services when such contract is with the United States Government or an agency or instrumentality thereof or when such contract is directly financed by grant assistance from the United States Government or an agency or instrumentality thereof and the individual or firm is a party to the contract, a subcontractor, or an employee of a contractor or subcontractor.
(e) Employee means an individual who is under the jurisdiction of a chief of mission to a foreign country as provided under section 207 of the Foreign Service Act of 1980. (22 U.S.C. 3927) and who is –
(1) An employee as defined by section 2105 of title 5, United States Code;
(2) An officer or employee of the United States Postal Service or of the Postal Rate Commission;
(3) A member of a uniformed service who is not under the command of an area military commander, or
(4) An expert or consultant as authorized pursuant to section 3109 of title 5, United States Code, with the United States or any agency, department, or establishment thereof; but is not a national or permanent resident of the foreign country in which employed.
(f) Family member means any member of the family of an employee who is entitled to exemption from import limitation, customs duties, or taxes which would otherwise apply by virtue of his or her status as a dependent or member of the household of the employee.
(g) Foreign country means any country or territory, excluding the United States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the Trust Territory of the Pacific Islands, American Samoa, Guam, the Virgin Islands, and other territories and possessions of the United States.
(h) Except as otherwise provided by a chief of mission in policies, rules or procedures issued pursuant to § 136.5(b), an item shall be deemed of “minimal value” if its acquisition cost in U.S. dollars (or retail value if received as a gift) is within the limit determined by the Administrator of General Services for “minimal value” of foreign gifts under 5 U.S.C. 7342, currently $180. For purposes of determining “minimal value,” all constitutent parts of components of an audio or visual system, automobile, boat, computer system, or other integrated machine, system or item of equipment must be valued as a single item even if acquired separately, except that spare or superseded parts (e.g., an old set of tires that has been replaced on vehicle) may be valued as separate items.
(i) Personal property means any item of personal property, including automobiles, computers, boats, audio and video equipment and any other items acquired for personal use, except that items properly determined to be of “minimal value” shall not be subject to limitations on disposition except for purposes of § 136.4(d) or as prescribed in policies, rules or procedures issued by a chief of mission.
(j) Profit means any proceeds (including cash and other valuable consideration but not including amounts of such proceeds given as charitable contributions) for the sale, disposition or assignment of personal property in excess of the basis for such property.
§ 136.4 Restrictions on dispositions of personal property.
(a) An employee or family member shall not sell, assign or otherwise dispose of personal property within a foreign country except with the prior written approval of the chief of mission or designee, except where the category of dispositions has been authorized to be undertaken without prior written approval in policies, rules or procedures issued by the chief of mission (cf. § 136.5(b)(1)).
(b) An employee or family member shall not retain any profit from the sale, assignment or other disposition within a foreign country of personal property that was imported into or purchased in that foreign country and that, by virtue of the official status of the employee, was exempt from import restrictions, customs duties, or taxes which would otherwise apply, when such sale, assignment or other disposition is made to persons not entitled to exemptions from import restrictions, duties, or taxes. An employee or family member shall not profit from an indirect disposition to persons not entitled to such exemptions, such as sale through a third country diplomat acting as a middleman, where the employee or family member knows or should know that the property is being acquired by the third party for resale to persons not entitled to exemptions, except that this restriction shall not apply to sales of personal property to official agencies of the foreign country in accordance with the laws or regulations of that country.
(c) Profits obtained from dispositions of personal property by an employee or family member that cannot be retained under paragraph (b) of this section including any interest earned by the employee or family member on such profits, shall be disposed of within 90 days of receipt by contribution or gift as defined in section 170(c) of the Internal Revenue Code or by other similar contribution or gift to a bona fide charitable foreign entity as designated by the chief of mission pursuant to § 136.5(b)(11) of this part.
(d) Except as authorized in advance by the chief of mission on a case-by-case basis, no employee or family member shall sell, assign or otherwise dispose of personal property within a foreign country that was not acquired for bona fide personal use. There shall be a presumption that property that is new, unused or held by the employer or family member in unusual or commercial quantities was not acquired for bona fide personal use. For purposes of this subsection, there is no exemption for items of minimal value § 136.3(h)).
(e) No employee or family member shall import, sell, assign or otherwise dispose of personal property within a foreign country in a manner that violates the law or regulations of that country or governing international law.
(f) Violations of the restrictions or requirements of paragraphs (a) through (e) of this section shall be grounds for disciplinary actions against the employee in accordance with the employing agency’s procedures and regulations. Employees shall be responsible for ensuring compliance with these regulations by family members.
(g) For purposes of computing profits on personal property dispositions subject to these regulations, where acquisition and disposition of the property were transacted in different currencies, proceeds received and costs incurred in a foreign currency shall be valued in United States dollars at the time of receipt or payment at the rate of exchange that was in effect for reverse accommodation exchanges at U.S. missions at the time of such receipt or payment. Where property was acquired and sold in the same currency, no conversion is required.
§ 136.5 Chief of mission policies, rules or procedures.
(a) Each chief of mission shall establish a procedure under which employees may request approval for the sale of personal property and for conversion of proceeds of such sale from local currency into U.S. dollars, if applicable. This procedure may be modified to meet local conditions, but must produce a documentary record to be held by the post of the following:
(1) The employee’s signed request for permission to sell personal property, and, if applicable, to convert local currency proceeds to U.S. dollars;
(2) A description of each item of personal property having more than minimal value, and the cost basis and actual sales price for each item;
(3) All profits received and whether profit is retainable;
(4) Donation to charities or other authorized recipients of non-retainable profits;
(5) Approvals to sell and, if applicable, to exchange proceeds, with any restrictions or refusals of the employee’s request noted, signed by the chief of mission or designee; and
(6) For privately owned vehicle transactions, data on purchaser and statement that customs requirements have been met and title has been transferred or arranged with an agent identified on document.
(b) In order to ensure that due account is taken of local conditions, including applicable laws, markets, exchange rate factors, and accommodation exchange facilities, the chief of mission to each foreign country is authorized to establish policies, rules, and procedures governing the disposition of personal property by employees and family members in that country under the chief of mission’s jurisdiction. Policies, rules and procedures issued by the chief of mission shall be consistent with the general restrictions set forth in § 136.4 and may include at least the following:
(1) Identification of categories of dispositions (e.g., sales of minimal value items) that may be made without prior written approval;
(2) Identification of categories of individuals or entities to whom sales of personal property can be made without restrictions on profits (e.g., other employees, third country diplomats), individuals or entities to whom sales can be made but profits not retained, and individuals or entities to whom sales may not be made;
(3) Requirements to report the total estimated and actual proceeds for all minimal value items, even if such items are otherwise exempted from limitations on profits of sale;
(4) Categories of items of personal property excluded from restrictions on disposition because generally exempt from taxation and import duties under local law;
(5) More restrictive definition of “minimal value” (see § 136.3(h) of this part);
(6) Limitations on manner of disposition (e.g., restrictions on advertising or yard sales);
(7) Limitations on total proceeds that may be generated by dispositions of personal property, including limitations on proceeds from disposition of “minimal value” items;
(8) Limitations on total profits that may be generated by dispositions of personal property, including limitations on profits from dispositions of “minimal value” items;
(9) Limitations on total proceeds from dispositions of personal property that may be converted into dollars by reverse accommodation exchange;
(10) Limitations on the timing and number of reverse accommodation exchanges permitted for proceeds of dispositions of personal property (e.g., only in last six months of tour and no more than two exchange conversions);
(11) Designation of bona fide charitable foreign entities to whom an employee or family member may donate profits that cannot be retained under these regulations.
(12) Designation of post officials authorized to approve on behalf of chief of mission employee requests for permission to sell personal property and requests to convert local currency proceeds of sale to U.S. dollars by reverse accommodation exchange.
(c) All policies, rules, and procedures that are issued by the chief of mission pursuant to paragraphs (a) and (b) of this section shall be announced by notice circulated to all affected mission employees and copies of all such policies, rules and procedures shall be made readily accessible to all affected employees and family members.
(d) Violations of restrictions or requirements established by a chief of mission in policies, rules, or procedures issued by a chief of mission pursuant to paragraphs (a) and (b) of this section shall be grounds for disciplinary actions against the employee in accordance with the employing agency’s procedures and regulations. Employees shall ensure compliance by family members with policies, rules or procedures issued by the chief of mission.
§ 136.6 Contractors.
To the extent that contractors enjoy importation or tax privileges in a foreign country because of their contractual relationship to the United States Government, contracting agencies shall include provisions in their contracts that require the contractors to observe the requirements of these regulations and all policies, rules, and procedures issued by the chief of mission in that foreign country.
PART 138 – RESTRICTIONS ON LOBBYING
See also Office of Management and Budget notice published at 54 FR 52306, December 20, 1989.
Subpart A – General
§ 138.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a Federal contract, grant, loan, or cooperative ageement to pay any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any of the following covered Federal actions: the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal contract, grant, loan, or cooperative agreement shall file with that agency a certification, set forth in appendix A, that the person has not made, and will not make, any payment prohibited by paragraph (a) of this section.
(c) Each person who requests or receives from an agency a Federal contract, grant, loan, or a cooperative agreement shall file with that agency a disclosure form, set forth in appendix B, if such person has made or has agreed to make any payment using nonappropriated funds (to include profits from any covered Federal action), which would be prohibited under paragraph (a) of this section if paid for with appropriated funds.
(d) Each person who requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file with that agency a statement, set forth in appendix A, whether that person has made or has agreed to make any payment to influence or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment providing for the United States to insure or guarantee a loan shall file with that agency a disclosure form, set forth in appendix B, if that person has made or has agreed to make any payment to influence or attempt to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with that loan insurance or guarantee.
§ 138.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal executive departments and agencies as well as independent regulatory commissions and Government corporations, as defined in 31 U.S.C. 9101(1).
(b) Covered Federal action means any of the following Federal actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(c) Federal contract means an acquisition contract awarded by an agency, including those subject to the Federal Acquisition Regulation (FAR), and any other acquisition contract for real or personal property or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement entered into by an agency.
(e) Federal grant means an award of financial assistance in the form of money, or property in lieu of money, by the Federal Government or a direct appropriation made by law to any person. The term does not include technical assistance which provides services instead of money, or other assistance in the form of revenue sharing, loans, loan guarantees, loan insurance, interest subsidies, insurance, or direct United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450B). Alaskan Natives are included under the definitions of Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the intent to influence, any communication to or appearance before an officer or employee or any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency’s guarantee or insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if chartered, established, or otherwise recognized by a State for the performance of a governmental duty, including a local public authority, a special district, an intrastate district, a council of governments, a sponsor group representative organization, and any other instrumentality of a local government.
(k) Officer or employee of an agency includes the following individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government under title 5, U.S. Code, including a position under a temporary appointment;
(2) A member of the uniformed services as defined in section 101(3), title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title 18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee, as defined by the Federal Advisory Committee Act, title 5, U.S. Code appendix 2.
(l) Person means an individual, corporation, company, association, authority, firm, partnership, society, State, and local government, regardless of whether such entity is operated for profit or not for profit. This term excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly employed officer or employee of any person, compensation that is consistent with the normal compensation for such officer or employee for work that is not furnished to, not funded by, or not furnished in cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other technical services, a payment in an amount that is consistent with the amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier, and subgrantees at any tier of the recipient of funds received in connection with a Federal contract, grant, loan, or cooperative agreement. The term excludes an Indian tribe, tribal organization, or any other Indian organization with respect to expenditures specifically permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement or a commitment providing for the United States to insure or guarantee a loan, an officer or employee who is employed by such person for at least 130 working days within one year immediately preceding the date of the submission that initiates agency consideration of such person for receipt of such contract, grant, loan, cooperative agreement, loan insurance commitment, or loan guarantee commitment. An officer or employee who is employed by such person for less than 130 working days within one year immediately preceding the date of the submission that initiates agency consideration of such person shall be considered to be regularly employed as soon as he or she is employed by such person for 130 working days.
(q) State means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, a territory or possession of the United States, an agency or instrumentality of a State, and a multi-State, regional, or interstate entity having governmental duties and powers.
§ 138.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form, if required, with each submission that initiates agency consideration of such person for:
(1) Award of a Federal contract, grant, or cooperative agreement exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form, if required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding $100,000; or
(2) A Federal loan or a commitment providing for the United States to insure or guarantee a loan exceeding $150,000,
(c) Each person shall file a disclosure form at the end of each calendar quarter in which there occurs any event that requires disclosure or that materially affects the accuracy of the information contained in any disclosure form previously filed by such person under paragraphs (a) or (b) of this section. An event that materially affects the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or expected to be paid for influencing or attempting to influence a covered Federal action; or
(2) A change in the person(s) or individual(s) influencing or attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a Federal cooperative agreement,
(e) All disclosure forms, but not certifications, shall be forwarded from tier to tier until received by the person referred to in paragraphs (a) or (b) of this section. That person shall forward all disclosure forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e) of this section shall be treated as a material representation of fact upon which all receiving tiers shall rely. All liability arising from an erroneous representation shall be borne solely by the tier filing that representation and shall not be shared by any tier to which the erroneous representation is forwarded. Submitting an erroneous certification or disclosure constitutes a failure to file the required certification or disclosure, respectively. If a person fails to file a required certification or disclosure, the United States may pursue all available remedies, including those authorized by section 1352, title 31, U.S. Code.
(g) For awards and commitments in process prior to December 23, 1989, but not made before that date, certifications shall be required at award or commitment, covering activities occurring between December 23, 1989, and the date of award or commitment. However, for awards and commitments in process prior to the December 23, 1989 effective date of these provisions, but not made before December 23, 1989, disclosure forms shall not be required at time of award or commitment but shall be filed within 30 days.
(h) No reporting is required for an activity paid for with appropriated funds if that activity is allowable under either subpart B or C.
Subpart B – Activities by Own Employees
§ 138.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in § 138.100 (a), does not apply in the case of a payment of reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement if the payment is for agency and legislative liaison activities not directly related to a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any information specifically requested by an agency or Congress is allowable at any time.
(c) For purposes of paragraph (a) of this section, the following agency and legislative liaison activities are allowable at any time only where they are not related to a specific solicitation for any covered Federal action:
(1) Discussing with an agency (including individual demonstrations) the qualities and characteristics of the person’s products or services, conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the application or adaptation of the person’s products or services for an agency’s use.
(d) For purposes of paragraph (a) of this section, the following agencies and legislative liaison activities are allowable only where they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but necessary for an agency to make an informed decision about initiation of a covered Federal action;
(2) Technical discussions regarding the preparation of an unsolicited proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an agency pursuant to the provisions of the Small Business Act, as amended by Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are allowable under this section.
§ 138.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in § 138.100 (a), does not apply in the case of a payment of reasonable compensation made to an officer or employee of a person requesting or receiving a Federal contract, grant, loan, or cooperative agreement or an extension, continuation, renewal, amendment, or modification of a Federal contract, grant, loan, or cooperative agreement if payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement.
(b) For purposes of paragraph (a) of this section, “professional and technical services” shall be limited to advice and analysis directly applying any professional or technical discipline. For example, drafting of a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client’s proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation, or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are allowable under this section.
§ 138.210 Reporting.
No reporting is required with respect to payments of reasonable compensation made to regularly employed officers or employees of a person.
Subpart C – Activities by Other Than Own Employees
§ 138.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in § 138.100 (a), does not apply in the case of any reasonable payment to a person, other than an officer or employee of a person requesting or receiving a covered Federal action, if the payment is for professional or technical services rendered directly in the preparation, submission, or negotiation of any bid, proposal, or application for that Federal contract, grant, loan, or cooperative agreement or for meeting requirements imposed by or pursuant to law as a condition for receiving that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in § 138.110 (a) and (b) regarding filing a disclosure form by each person, if required, shall not apply with respect to professional or technical services rendered directly in the preparation, submission, or negotiation of any commitment providing for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, “professional and technical services” shall be limited to advice and analysis directly applying any professional or technical discipline. For example, drafting or a legal document accompanying a bid or proposal by a lawyer is allowable. Similarly, technical advice provided by an engineer on the performance or operational capability of a piece of equipment rendered directly in the negotiation of a contract is allowable. However, communications with the intent to influence made by a professional (such as a licensed lawyer) or a technical person (such as a licensed accountant) are not allowable under this section unless they provide advice and analysis directly applying their professional or technical expertise and unless the advice or analysis is rendered directly and solely in the preparation, submission or negotiation of a covered Federal action. Thus, for example, communications with the intent to influence made by a lawyer that do not provide legal advice or analysis directly and solely related to the legal aspects of his or her client’s proposal, but generally advocate one proposal over another are not allowable under this section because the lawyer is not providing professional legal services. Similarly, communications with the intent to influence made by an engineer providing an engineering analysis prior to the preparation or submission of a bid or proposal are not allowable under this section since the engineer is providing technical services but not directly in the preparation, submission or negotiation of a covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for receiving a covered Federal award include those required by law or regulation, or reasonably expected to be required by law or regulation, and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting or receiving a covered Federal action include consultants and trade associations.
(f) Only those services expressly authorized by this section are allowable under this section.
Subpart D – Penalties and Enforcement
§ 138.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be subject to a civil penalty of not less than $23,727 and not more than $237,268 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see appendix B) to be filed or amended if required herein, shall be subject to a civil penalty of not less than $23,727 and not more than $237,268 for each such failure.
(c) A filing or amended filing on or after the date on which an administrative action for the imposition of a civil penalty is commenced does not prevent the imposition of such civil penalty for a failure occurring before that date. An administrative action is commenced with respect to a failure when an investigating official determines in writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount of any such penalty, by reason of a violation by any person, the agency shall consider the nature, circumstances, extent, and gravity of the violation, the effect on the ability of such person to continue in business, any prior violations by such person, the degree of culpability of such person, the ability of the person to pay the penalty, and such other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section shall be subject to a civil penalty of $23,343, absent aggravating circumstances. Second and subsequent offenses by persons shall be subject to an appropriate civil penalty between $23,727 and $237,268, as determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not prevent the United States from seeking any other remedy that may apply to the same conduct that is the basis for the imposition of such civil penalty.
§ 138.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C. sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and 3812, insofar as these provisions are not inconsistent with the requirements herein.
§ 138.410 Enforcement.
The head of each agency shall take such actions as are necessary to ensure that the provisions herein are vigorously implemented and enforced in that agency.
Subpart E – Exemptions
§ 138.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a covered Federal action from the prohibition whenever the Secretary determines, in writing, that such an exemption is in the national interest. The Secretary shall transmit a copy of each such written exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to implement paragraph (a) of this section.
Subpart F – Agency Reports
§ 138.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure reports (see appendix B) and, on May 31 and November 30 of each year, submit to the Secretary of the Senate and the Clerk of the House of Representatives a report containing a compilation of the information contained in the disclosure reports received during the six-month period ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for public inspection 30 days after receipt of the report by the Secretary and the Clerk.
(c) Information that involves intelligence matters shall be reported only to the Select Committee on Intelligence of the Senate, the Permanent Select Committee on Intelligence of the House of Representatives, and the Committees on Appropriations of the Senate and the House of Representatives in accordance with procedures agreed to by such committees. Such information shall not be available for public inspection.
(d) Information that is classified under Executive Order 12356 or any successor order shall be reported only to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives or the Committees on Armed Services of the Senate and the House of Representatives (whichever such committees have jurisdiction of matters involving such information) and to the Committees on Appropriations of the Senate and the House of Representatives in accordance with procedures agreed to by such committees. Such information shall not be available for public inspection.
(e) The first semi-annual compilation shall be submitted on May 31, 1990, and shall contain a compilation of the disclosure reports received from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and Budget (OMB), are required to provide machine-readable compilations to the Secretary of the Senate and the Clerk of the House of Representatives no later than with the compilations due on May 31, 1991. OMB shall provide detailed specifications in a memorandum to these agencies.
(g) Non-major agencies are requested to provide machine-readable compilations to the Secretary of the Senate and the Clerk of the House of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in the official files of the agency.
§ 138.605 Inspector General report.
(a) The Inspector General, or other official as specified in paragraph (b) of this section, of each agency shall prepare and submit to Congress each year, commencing with submission of the President’s Budget in 1991, an evaluation of the compliance of that agency with, and the effectiveness of, the requirements herein. The evaluation may include any recommended changes that may be necessary to strengthen or improve the requirements.
(b) In the case of an agency that does not have an Inspector General, the agency official comparable to an Inspector General shall prepare and submit the annual report, or, if there is no such comparable official, the head of the agency shall prepare and submit the annual report.
(c) The annual report shall be submitted at the same time the agency submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged violations relating to the agency’s covered Federal actions during the year covered by the report, the actions taken by the head of the agency in the year covered by the report with respect to those alleged violations and alleged violations in previous years, and the amounts of civil penalties imposed by the agency in the year covered by the report.
Appendix A to Part 138 – Certification Regarding Lobbying
The undersigned certifies, to the best of his or her knowledge and belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of an agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
The undersigned states, to the best of his or her knowledge and belief, that:
If any funds have been paid or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this commitment providing for the United States to insure or guarantee a loan, the undersigned shall complete and submit Standard Form-LLL, “Disclosure Form to Report Lobbying,” in accordance with its instructions.
Submission of this statement is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required statement shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure.
Appendix B to Part 138 – Disclosure Form To Report Lobbying
PART 139 [RESERVED]
PART 140 – PROHIBITION ON ASSISTANCE TO DRUG TRAFFICKERS
Subpart A – General
§ 140.1 Purpose.
(a) This part implements Section 487 of the Foreign Assistance Act of 1961, as amended (22 U.S.C. Sec. 2291f).
(b) Section 487(a) directs the President to “take all reasonable steps” to ensure that assistance under the Foreign Assistance Act of 1961 (FAA) and the Arms Export Control Act (AECA) “is not provided to or through any individual or entity that the President knows or has reason to believe”:
(1) Has been convicted of a violation of, or a conspiracy to violate, any law or regulation of the United States, a State or the District of Columbia, or a foreign country relating [to] narcotic or psychotropic drugs or other controlled substances; or
(2) Is or has been an illicit trafficker in any such controlled substance or is or has been a knowing assistor, abettor, conspirator, or colluder with others in the illicit trafficking in any such substance.
§ 140.2 Authorities.
Authority to implement FAA Section 487 was delegated by the President to the Secretary of State by E.O. 12163, as amended, and further delegated by the Secretary to the Assistant Secretary of State for International Narcotics and Law Enforcement Affairs by Delegation of Authority No. 145, dated Feb. 4, 1980 (45 FR 11655), as amended.
§ 140.3 Definitions.
The following definitions shall apply for the purpose of this part:
(a) Convicted. The act of being found guilty of or legally responsible for a criminal offense, and receiving a conviction or judgment by a court of competent jurisdiction, whether by verdict or plea, and including convictions entered upon a plea of nolo contendere.
(b) Country Narcotics Coordinator. The individual assigned by the Chief of Mission of a U.S. diplomatic post, in consultation with the Assistant Secretary of State for International Narcotics and Law Enforcement Affairs, in each foreign country to coordinate United States government policies and activities within a country related to counternarcotics efforts.
(c) Covered assistance. Any assistance provided by an agency of the United States government under the FAA or AECA, except that it does not include:
(1) Assistance that by operation of the law is not subject to FAA Section 487, such as:
(i) Disaster relief and rehabilitation provided under Chapter 9 of Part I of the FAA; and
(ii) Assistance provided to small farmers when part of a community-based alternative development program under Part I or Chapter 4 of Part II of the FAA;
(2) Assistance in a total amount less than $100,000 regarding a specific activity, program, or agreement, except that the procedures in § 140.8 for recipients of scholarships, fellowships, and participant training shall apply regardless of amount. However, assistance shall be deemed covered assistance regardless of amount if the agency providing assistance has reasonable grounds to suspect that a covered individual or entity may be or may have been involved in drug trafficking; or
(3) Payments of dues or other assessed contributions to an international organization.
(d) Covered country. A country that has been determined by the President to be either a “major illicit drug producing” or “major drug-transit” country under Chapter 8 of Part I of the FAA. The list of covered countries is submitted to Congress annually and set forth in the International Narcotics Control Strategy Report.
(e) Drug trafficking. Any activity undertaken illicitly to cultivate, produce, manufacture, distribute, sell, finance or transport, or to assist, abet, conspire, or collude with others in illicit activities, including money laundering, relating to narcotic or psychotropic drugs, precursor chemicals, or other controlled substances.
(f) Money laundering. The process whereby proceeds of criminal activity are transported, transferred, transformed, converted, or intermingled with legally acquired funds, for the purpose of concealing or disguising the true nature, source, disposition, movement, or ownership of those proceeds. The goal of money laundering is to make funds derived from or associated with illicit activity appear to have been acquired legally.
(g) Narcotics offense. A violation of, or a conspiracy to violate, any law or regulation of the United States, a State or the District of Columbia, or a foreign country relating to narcotic or psychotropic drugs or other controlled substances.
Subpart B – Applicability
§ 140.4 Applicability.
Except as otherwise provided herein or as otherwise specially determined by the Secretary of State or the Secretary’s designee (except that decisions on notification and/or disclosure shall in all cases be subject to the provisions of §§ 140.13 through 140.14), the procedures prescribed by this part apply to any “covered individual or entity,” i.e., any individual or entity, including a foreign government entity, a multilateral institution or international organization, or a U.S. or foreign non-governmental entity:
(a)(1) That is receiving or providing covered assistance as a party to a grant, loan, guarantee, cooperative agreement, contract, or other direct agreement with an agency of the United States (a “first-tier” recipient); or
(2) That is receiving covered assistance
(A) Beyond the first tier if specifically designated to receive such assistance by a U.S. government agency; or
(B) In the form of a scholarship, fellowship, or participant training, except certain recipients funded through a multilateral institution or international organization, as provided in § 140.7(c); and
(b)(1) That is located in or providing covered assistance within a covered country or within any other country, or portion thereof, that the Secretary of State or the Secretary’s designee may at any time determine should be treated, in order to fulfill the purpose of this part, as if it were a covered country; or
(2) As to which the agency providing assistance or any other interested agency has reasonable grounds to suspect current or past involvement in drug trafficking or conviction of a narcotics offense, regardless of whether the assistance is provided within a covered country.
(2) Under a $1,000,000 grant from the Department of State providing covered assistance, Corporation B makes a $120,000 subgrant to University Y for the training of 12 individuals. If Corporation B is located in or providing assistance within a covered country, it is a covered entity and the 12 individuals receiving participant training are covered individuals. University Y is not a covered entity.
(3) University C, which is not located in a covered country, receives a $1 million regional assistance research project grant from the Agency for International development, $80,000 of which is provided for research in covered countries. University C is not a covered entity. (However, if $100,000 or more were provided for research in a covered country or countries, or if University C were located in a covered country, then University C would be a covered entity.)
Subpart C – Enforcement
§ 140.5 Overview.
This subpart sets forth the enforcement procedures applicable pursuant to § 140.4 to the various types of covered individuals and entities with respect to covered assistance. Section 140.6 establishes the procedures applicable to foreign government entities, including any such entity that is covered by the definition of a “foreign state” set forth in the Foreign Sovereign Immunities Act, 28 U.S.C. Sec. 1603(a). Section 140.7 establishes the procedures applicable to multilateral institutions and international organizations. Section 140.8 establishes the procedures applicable to recipients of scholarships and fellowships and participant trainees. Section 140.9 establishes the procedures applicable to non-governmental entities. Section 140.10 sets forth additional procedures applicable to intermediate credit institutions. Sections 140.11 through 140.14 contain general provisions related to the enforcement process.
§ 140.6 Foreign government entities.
(a) Determination Procedures. (1) The Country Narcotics Coordinator shall be responsible for establishing a system for reviewing available information regarding narcotics offense convictions and drug trafficking of proposed assistance recipients under this section and, except under the circumstances described in § 140.6(a)(6), determining whether a proposed recipient is to be denied such assistance or other measures are to be taken as a result of the application of FAA Section 487.
(2) Prior to providing covered assistance to or through a proposed recipient, the agency providing the assistance shall provide the Country Narcotics Coordinator in the country in which the proposed recipient is located or, as appropriate, where assistance is to be provided, the information specified in § 140.6(a)(3) in order that the Country Narcotics Coordinator may carry out his or her responsibilities under this part.
(3) In each case, the agency proposing the assistance shall provide to the Country Narcotics Coordinator the name of each key individual within the recipient entity who may be expected to control or benefit from assistance as well as other relevant identifying information (e.g., address, date of birth) that is readily available. If a question arises concerning who should be included within the group of key individuals of an entity, the agency providing the assistance shall consult with the Country Narcotics Coordinator, and the decision shall be made by the Country Narcotics Coordinator. If the agency proposing the assistance disagrees with the Country Narcotics Coordinator’s decision regarding who should be included within the group of key individuals, the agency may request that the decision be reviewed by the Assistant Secretary of State for International Narcotics and Law Enforcement Affairs in consultation with other appropriate bureaus and agencies. Any such review undertaken by the Assistant Secretary of State for International Narcotics and Law Enforcement Affairs shall be completed expeditiously.
(4) Within fourteen calendar days after receiving the name of a proposed recipient and other relevant information, the Country Narcotics Coordinator shall determine whether any available information may warrant withholding assistance or taking other measures under this part, based on the criteria set forth in § 140.6(b). If, during that period, the Country Narcotics Coordinator determines that available information does not so indicate, he or she shall notify the proposing agency that the assistance may be provided to the proposed recipient.
(5) If, during the initial fourteen-day period, the Country Narcotics Coordinator determines that information exists that may warrant withholding assistance or taking other measures under this part, then the Country Narcotics Coordinator shall have another fourteen calendar days to make a final determination whether the assistance shall be provided or withheld or such other measures taken.
(6) A decision to withhold assistance or to take other measures based on information or allegations that a key individual who is a senior government official of the host nation has been convicted of a narcotics offense or has been engaged in drug trafficking shall be made by the Assistant Secretary of State for International Narcotics and Law Enforcement Affairs, or by a higher ranking official of the Department of State, in consultation with other appropriate bureaus and agencies. For the purpose of this part, “senior government official” includes host nation officials at or above the vice minister level, heads of host nation law enforcement agencies, and general or flag officers of the host nation armed forces.
(b) Criteria to be Applied. (1) A decision to withhold assistance or take other measures shall be based on knowledge or reason to believe that the proposed recipient, within the past ten years, has:
(i) Been convicted of a narcotics offense as defined in this part; or
(ii) Been engaged in drug trafficking, regardless of whether there has been a conviction.
(2) Factors that may support a decision to withhold assistance or take other measures based on reason to believe that the proposed recipient has been engaged in drug trafficking activities within the past ten years when there has been no conviction of such an offense may include, but are not limited to, the following:
(i) Admission of participation in such activities;
(ii) A long record of arrests for drug trafficking activities with an unexplained failure to prosecute by the local government;
(iii) Adequate reliable information indicating involvement in drug trafficking.
(3) If the Country Narcotics Coordinator knows or has reason to believe that a key individual (as described in § 140.6(a)(3)) within a proposed recipient entity has been convicted of a narcotics offense or has been engaged in drug trafficking under the terms of this part, the Country Narcotics Coordinator must then decide whether withholding assistance from the entity or taking other measures to structure the provision of assistance to meet the requirements of section 487 is warranted. This decision shall be made in consultation with the agency proposing the assistance and other appropriate bureaus and agencies. In making this determination, the Country Narcotics Coordinator shall take into account:
(i) The extent to which such individual would have control over assistance received;
(ii) The extent to which such individual could benefit personally from the assistance;
(iii) Whether such individual has acted alone or in collaboration with others associated with the entity;
(iv) The degree to which financial or other resources of the entity itself have been used to support drug trafficking; and
(v) Whether the provision of assistance to the entity can be structured in such a way as to exclude from the effective control or benefit of the assistance any key individuals with respect to whom a negative determination has been made.
(c) Violations Identified Subsequent to Obligation. The foregoing procedures provide for a determination before funds are obligated. If, however, subsequent to an obligation of funds an assistance recipient or a key individual of such recipient is found to have been convicted of a narcotics offense or to have been engaged in drug trafficking (e.g., the head of a recipient entity changes during the course of an activity and the new head is found to have been engaged in drug trafficking), appropriate action should be taken, including, if necessary, termination of the assistance. Agreements shall be written to permit termination of assistance in such circumstances.
§ 140.7 Multilateral institutions and international organizations.
Assistance provided to or through multilateral institutions or international organizations is subject to this part as follows:
(a) Where the government agency providing assistance has reasonable grounds to suspect that a recipient multilateral institution or international organization may be or may have been involved in drug trafficking, the provisions of § 140.6 shall apply.
(b) Where the government agency providing assistance designates the recipient of assistance from the multilateral institution or international organization and the designated recipient is a covered individual or entity, the provisions of this part shall apply as if the assistance were provided directly to the designated recipient.
(c) Where the government agency providing assistance does not designate the recipient of assistance from the multilateral institution or international organization, this part do not apply, other than as provided in paragraph (a) of this section, except that the agency’s agreement with the multilateral institution or international organization shall stipulate that such entity is to make reasonable efforts, as necessary, to ensure that the assistance is not diverted in support of drug trafficking.
§ 140.8 Recipients of scholarships, fellowships, and participant training.
(a) Procedures. Individuals who are located in a covered country and who are proposed recipients of scholarships, fellowships, or participant training, except those falling under the exception contained in § 140.7(c), are subject to the review procedures, criteria, and procedures concerning violations identified subsequent to obligation of funds set forth in § 140.6. Such review of recipient individuals is in addition to the provisions applicable to the recipient entity providing the assistance.
(b) Certifications. Individuals who are located in a covered country and who are proposed recipients of scholarships, fellowships, or participant training shall also be required to certify prior to approval that, within the last ten years, they have not been convicted of a narcotics offense, have not been engaged in drug trafficking, and have not knowingly assisted, abetted, conspired, or colluded with others in drug trafficking. False certification may subject the assistance recipient to U.S. criminal prosecution under 18 U.S.C. Sec. 1001 and to withdrawal of assistance under this part.
§ 140.9 Other non-governmental entities and individuals.
(a) Procedures. Section 140.9 applies to private voluntary agencies, educational institutions, for-profit firms, other non-governmental entities and private individuals. A non-governmental entity that is not organized under the laws of the United States shall be subject to the review procedures and criteria set forth in § 140.6(a) and (b). A non-governmental entity that is organized under the laws of the United States shall not be subject to such review procedures and criteria. However, an agency providing assistance shall follow such review procedures and criteria, as modified by section § 140.14, if the agency has reasonable grounds to suspect that a proposed U.S. non-governmental entity or a key individual of such entity may be or may have been involved in drug trafficking or may have been convicted of a narcotics offense. Procedures set forth in § 140.6(c) concerning violations identified subsequent to obligation shall apply to both U.S. and foreign non-governmental entities.
(2) A $100,000 grant to a covered foreign private voluntary agency for participant training would be subject to the review procedures and criteria in § 140.6(a) and (b). In addition, each proposed participant would be subject to the review procedures and criteria in § 140.6(a) and (b) as part of the agency’s approval process.
(b) Refunds. A clause shall be included in grants, contracts, and other agreements with both U.S. and foreign non-governmental entities requiring that assistance provided to or through such an entity that is subsequently found to have been engaged in drug trafficking, as defined in this part, shall be subject to refund or recall.
(c) Certifications. Prior to approval of covered assistance, key individuals (as described in § 140.6(a)(3)) in both U.S. and foreign non-governmental entities shall be required to certify that, within the last ten years, they have not been convicted of a narcotics offense, have not been engaged in drug trafficking and have not knowingly assisted, abetted, conspired, or colluded with others in drug trafficking. False certification may subject the signatory to U.S. criminal prosecution under 18 U.S.C. Sec. 1001.
§ 140.10 Intermediate credit institutions.
(a) Treatment as non-governmental entity or as a foreign government entity. Intermediate credit institutions (“ICIs”) shall be subject to either the procedures applicable to foreign government entities or those applicable to non-governmental entities, depending on the nature of the specific entity. The Assistant Secretary of State for International Narcotics and Law Enforcement Affairs or the Assistant Secretary’s designee, in consultation with the agency proposing the assistance and other appropriate bureaus and agencies, shall determine (consistent with the definition of “foreign state” set forth in the Foreign Sovereign Immunities Act, 28 U.S.C. 1603(a) and made applicable by § 140.5) whether the ICI will be treated as a non-governmental entity or a foreign government entity.
(b) Refunds. In addition to measures required as a consequence of an ICI’s treatment as a non-governmental entity or a foreign government entity, a clause shall be included in agreements with all ICIs requiring that any loan greater than $1,000 provided by the ICI to an individual or entity subsequently found to have been convicted of a narcotics offense or engaged in drug trafficking, as defined in this part, shall be subject to refund or recall.
§ 140.11 Minimum enforcement procedures.
Sections 140.6 through 140.10 represent the minimum procedures that each agency providing assistance must apply in order to implement FAA Section 487. Under individual circumstances, however, additional measures may be appropriate. In those cases, agencies providing assistance are encouraged to take additional steps, as necessary, to ensure that the statutory restrictions are enforced.
§ 140.12 Interagency review procedures.
If the agency proposing the assistance disagrees with a determination by the Country Narcotics Coordinator to withhold assistance or take other measures, the agency may request that the determination be reviewed by the Assistant Secretary of State for International Narcotics and Law Enforcement Affairs in coordination with other appropriate bureaus and agencies. Unless otherwise determined by the Assistant Secretary of State for International Narcotics and Law Enforcement Affairs, the assistance shall continue to be withheld pending resolution of the review.
§ 140.13 Notification to foreign entities and individuals.
(a) Unless otherwise determined under § 140.13(b), if a determination has been made that assistance to a foreign entity or individual is to be withheld, suspended, or terminated under this part, the agency administering such assistance shall so inform the affected entity or individual. Except as the agency administering such assistance, the Country Narcotics Coordinator, and the agency or agencies that are the source of information that formed the basis for withholding, suspending, or terminating assistance may otherwise agree, the entity or individual shall be notified solely of the statutory basis for withholding, suspending, or terminating assistance.
(b) Before such notification, the Country Narcotics Coordinator shall be responsible for ascertaining, in coordination with the investigating agency, that notification would not interfere with an on-going criminal investigation. If the investigating agency believes that there is a significant risk of such interference, the Country Narcotics Coordinator, in coordination with the investigating agency, shall determine the means of compliance with this statute that best minimizes such risk.
§ 140.14 Special procedures for U.S. entities and individuals.
(a) If the Country Narcotics Coordinator makes a preliminary decision that evidence exists to justify withholding, suspending, or terminating assistance to a U.S. entity, U.S. citizen, or permanent U.S. resident, the matter shall be referred immediately to the Assistant Secretary of State for International Narcotics and Law Enforcement Affairs for appropriate action, to be taken in consultation with the agency proposing the assistance and the agency or agencies that provided information reviewed or relied upon in making the preliminary decision.
(b) If a determination is made that assistance is to be withheld, suspended, or terminated under this part, the Assistant Secretary of State for International Narcotics and Law Enforcement Affairs, or the Assistant Secretary’s designee, shall notify the affected U.S. entity, U.S. citizen, or permanent U.S. resident and provide such entity or individual with an opportunity to respond before action is taken. In no event, shall this part be interpreted to create a right to classified information or law enforcement investigatory information by such entity or individual.
SUBCHAPTER O – CIVIL RIGHTS
PART 141 – NONDISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE DEPARTMENT OF STATE – EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
§ 141.1 Purpose.
The purpose of this part is to effectuate the provisions of title VI of the Civil Rights Act of 1964 (hereafter referred to as the “Act”) to the end that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance from the Department of State.
§ 141.2 Application of this part.
This part applies to any program for which Federal financial assistance, as defined in this part, is authorized under a law administered by the Department including, but not limited to, the types of Federal financial assistance listed in appendix A of this part. It applies to Federal financial assistance of any form, including property which may be acquired as a result of and in connection with such assistance, extended program after the effective date of this regulation, even if the application is approved prior to such effective date. This part does not apply to (a) any Federal financial assistance by way of insurance of guaranty contracts; (b) money paid, property transferred, or other assistance extended before the effective date of this regulation; (c) any assistance to any individual who is the ultimate beneficiary; or (d) any employment practice, under any such program, of any employer, employment agency, or labor organization, except to the extent described in § 141.3 (d), or (e) any assistance to an activity carried on outside the United States by a person, institution, or other entity not located in the United States. The fact that a type of Federal financial assistance is not listed in appendix A of this part shall not mean, if title VI of the Act is otherwise applicable, that a program is not covered. Transfers of surplus property in the United States are subject to regulations issued by the Administrator of General Services (41 CFR 101-6.2).
§ 141.3 Discrimination prohibited.
(a) General. No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program to which this part applies.
(b) Specific discriminatory actions prohibited. (1) A recipient to which this part applies may not, directly or through contractual or other arrangements on ground of race, color or national origin:
(i) Deny an individual any service, financial aid, or other benefits provided under the program;
(ii) Provide any service, financial aid, or other benefits to an individual which is different, or is provided in a different manner, from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;
(iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;
(v) Treat an individual differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit provided under the program;
(vi) Deny an individual an opportunity to participate in the program through the provision of services or otherwise afford him an opportunity to do so which is different from that afforded others under the program, including the opportunity to participate in the program as an employee in accordance with paragraph (d) of this section.
(vii) Deny a person the opportunity to participate as a member of a planning or advisory body which is an integral part of the program.
(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the location or site of any facilities, or services, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits, or facilities will be provided under any such program or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration or select locations or sites for any facilities or services, which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.
(3) As used in this section the services, financial aid, or other benefits provided under a program receiving Federal financial assistance shall be deemed to include any service, financial aid, or other benefit provided in or through a facility provided with the aid of Federal financial assistance.
(4) The enumeration of specific forms of prohibited discrimination in this paragraph does not limit the generality of the prohibition in paragraph (a) of this section.
(5)(i) In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.
(ii) Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin.
(c) Special benefits. An individual shall not be deemed subjected to discrimination by reason of his exclusion from benefits limited by Federal law to individuals of a particular race, color, or national origin different from his.
(d) Employment practices. (1) Where a primary objective of the Federal financial assistance to a program to which this part applies is to provide employment, a recipient may not (directly or through contractual or other arrangements) subject an individual to discrimination on the ground of race, color, or national origin in its employment practices under such program (including recruitment or recruitment advertising, employment layoff or termination, upgrading, demotion, or transfer, rates of pay or other forms of compensation, and use of facilities), including programs where a primary objective of the Federal financial assistance is: (i) To reduce the unemployment of such individuals or to help them through employment to meet subsistence needs; (ii) to assist such individuals through employment to meet expenses incident to the commencement or continuation of their education or training; (iii) to provide work experience which contributes to the education or training of such individuals; or (iv) to provide remunerative activity to such individuals who because of severe handicaps cannot be readily absorbed in the competitive labor market.
(2) Where a primary objective of the Federal financial assistance is not to provide employment, but discrimination on the grounds of race, color, or national origin in the employment practices of the recipient or other persons subject to the regulation tends, on the grounds of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program to which this regulation applies, the provisions of paragraph (d)(1) of this section shall apply to the employment practices of the recipient or other persons subject to the regulation, to the extent necessary to assure equality of opportunity to, and nondiscriminatory treatment of, beneficiaries.
§ 141.4 Assurances required.
(a) General. (1) Every application for Federal financial assistance to which this part applies, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, shall contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this part. The assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the application.
(2) In any case where the Federal assistance is to provide, or is in the form of personal property, or real property or structures or any interest therein, or such property is acquired as a result of and in connection with such assistance, the assurance shall obligate the recipient, or, in case of subsequent transfers, the transferees, for the period during which the property is used for a purpose for which the Federal assistance was, or is extended, or for another purpose involving the provision of similar services and benefits, or for as long as the recipient retains ownership or possession of the property, whichever is longer. Any assurance relating to property provided under or acquired as a result of or in connection with such assistance shall as appropriate require any instrument effecting or recording transfer, title or other evidence of ownership or right to possession, to include a covenant or condition assuring nondiscrimination for the period of obligation of the recipient or any transferee, which may contain a right to be reserved to the Department to revert title or right to possession. Where no transfer of property is involved, but property is improved or any interest of the recipient or transferee therein is increased as a result of Federal financial assistance, the recipient or transferee shall agree to include such covenant or condition in any subsequent transfer of such property. Failure to comply with any such conditions or requirements contained in such assurances shall render the recipient and the transferees, where appropriate, presumptively in noncompliance.
(3) The responsible Departmental official shall specify the form of the foregoing assurances, and the extent to which like assurances will be required of subgrantees, contractors and subcontractors, transferees, successors in interest, and other participants. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.
(b) Assurances from institutions. (1) In the case of any application for Federal financial assistance to an institution of higher education, including assistance for construction, for research, for a special training project, for student loans, or for any other purpose, the assurance required by this section shall extend to admission practices and to all other practices relating to the treatment of students.
(2) The assurance required with respect to an institution of higher education, or any other institution, insofar as the assurance relates to the institution’s practices with respect to admission or other treatment of individuals as students, or clients of the institution or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution.
(c) Elementary and secondary schools. The requirements of paragraph (a)(1) of this section, with respect to any elementary or secondary school or school system shall be deemed to be satisfied if such school or school system (1) is subject to a final order of a court of the United States for the desegregation of such school or school system, and provides an assurance that it will comply with such order, or (2) submits a plan the desegregation of such school or school system which the responsible official of the Department of Health, Education, and Welfare determines is adequate to accomplish the purposes of the Act and this part within the earliest practicable time, and provides reasonable assurance that it will carry out such plan; in any case of continuing Federal financial assistance the responsible official of the Department of Health, Education and Welfare may reserve the right to redetermine, after such period as may be specified by him the adequacy of the plan to accomplish the purposes of the Act and this part. In any case in which a final order of a court of the United States for the desegregation of such school or school system is entered after submission of such a plan, such plan shall be revised to conform to such final order, including any future modification of such order.
§ 141.5 Compliance information.
(a) Cooperation and assistance. Each responsible Department official shall to the fullest extent practicable seek the cooperation of recipients in obtaining compliance with this regulation and shall provide assistance and guidance to recipients to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep such records and submit to the responsible Departmental official or his designee timely, complete and accurate compliance reports at such times, and in such form and containing such information, as a responsible Departmental official or his designee may determine to be necessary to enable him to ascertain whether the recipient has complied or is complying with this part. In general, recipients should have available for the Department racial and ethnic data showing the extent to which members of minority groups are beneficiaries of Federally assisted programs. In the case in which a primary recipient extends Federal financial assistance to any other recipient, such other recipient shall also submit such compliance reports to the primary recipient as may be necessary to enable the primary recipient to carry out his obligations under this part.
(c) Access to sources of information. Each recipient shall permit access by the responsible Department official or his designee during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities as may be pertinent to ascertain compliance with this part. Where any information required of a recipient is in the exclusive possession of any other agency, institution or person and this agency, institution or person shall fail or refuse to furnish this information, the recipient shall so certify in its report and shall set forth what efforts it has made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient shall make available to participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the program for which the recipient receives Federal financial assistance, and make such information available to them in such manner, as the responsible Department official finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.
§ 141.6 Conduct of investigation.
(a) Periodic compliance reviews. The responsible Department official or his designee shall from time to time review the practices of recipients to determine whether they are complying with this part.
(b) Complaints. Any person who believes himself or any specific class of individual to be subjected to discrimination prohibited by this part may by himself or by a representative file with the responsible Departmental official a written complaint. A complaint must be filed not later than 180 days from the date of the alleged discrimination, unless the time for filing is extended by the responsible Departmental official or his designee.
(c) Investigations. The responsible Department official or his designee will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this part. The investigation should include, where appropriate, a review of the pertinent practices and policies of the recipient, the circumstances under which the possible noncompliance with this part occurred, and other factors relevant to a determination as to whether the recipient has failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to paragraph (c) of this section indicates a failure to comply with this part, the responsible Department official or his designee will so inform the recipient and the matter will be resolved by informal means whenever possible. If it has been determined that the matter cannot be resolved by informal means, action will be taken as provided for in § 141.7.
(2) If an investigation does not warrant action pursuant to paragraph (d)(1) of this section the responsible Department official or his designee will so inform the recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. The identity of complainants shall be kept confidential except to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
§ 141.7 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure to comply with this part, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with this part may be effected by the suspension or termination of or refusal to grant or to continue Federal financial assistance or by any other means authorized by law. Such other means may include, but are not limited to, (1) a reference to Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking, and (2) any applicable proceeding under State or local law.
(b) Noncompliance with § 141.4. If an applicant fails or refused to furnish an assurance required under § 141.4 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section Federal financial assistance may be refused in accordance with the procedures of paragraph (c) of this section. The Department shall not be required to provide assistance in such a case during the pendency of the administrative proceedings under such paragraph except that the Department shall continue assistance during the pendency of such proceedings where such assistance is due and payable pursuant to an application therefor approved prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal financial assistance. No order suspending, terminating or refusing to grant or continue Federal financial assistance shall become effective until (1) the responsible Department official has advised the applicant or recipient of his failure to comply and has determined that compliance cannot be secured by voluntary means, (2) there has been an express finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this part, (3) the action has been approved by the Secretary pursuant to § 141.9(e), and (4) the expiration of 30 days after the Secretary has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action. Any action to suspend or terminate or to refuse to grant or to continue Federal financial assistance shall be limited to the particular political entity, or part thereof, or other applicant or recipient as to whom such a finding has been made and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No action to effect compliance by any other means authorized by law shall be taken until (1) the responsible Department official has determined that compliance cannot be secured by voluntary means, (2) the action has been approved by the Deputy Under Secretary for Administration, (3) the recipient or other person has been notified of its failure to comply and of the action to be taken to effect compliance, and (4) the expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days additional efforts shall be made to persuade the recipient or other person to comply with this part and to take such corrective action as may be appropriate.
§ 141.8 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing is required by § 141.7(c), reasonable notice shall be given by registered or certified mail, return receipt requested, to the affected applicant or recipient. This notice shall advise the applicant or recipient of the action proposed to be taken, the specific provision under which the proposed action against it is to be taken and the matters of fact or law asserted as the basis for this action, and either (1) fix a date not less than 20 days after the date or such notice within which the applicant or recipient may request of the responsible Department official that the matter be scheduled for hearing or (2) advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to request a hearing under this paragraph or to appear at a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under section 602 of the Act and § 141.7(c) of this part and consent to the making of a decision on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall normally be held at the offices of the Department in Washington, DC, at a time fixed by the responsible Department official. Hearings shall be held before an official designated by the Secretary other than the responsible Department official, in accordance with 5 U.S.C. 3105 and 3344 (formerly Section 11 of the Administrative Procedure Act).
(c) Right to counsel. In all proceedings under this section, the applicant or recipient and the Department shall have the right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and any administrative review thereof shall be conducted with as much conformity as is practicable with 5 U.S.C. 554-557 (formerly sections 5-8 of the Administrative Procedure Act) and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in paragraph (a) of this section, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both the Department and the applicant or recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the officer conducting the hearing at the outset of or during the hearing.
(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The office presiding at the hearing may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings; hearings before other agencies. In cases in which the same or related facts are asserted to constitute noncompliance with this part with respect to two or more Federal statutes, authorities, or other means by which Federal financial assistance is extended and to which this part applies, or noncompliance with this part and regulations of one or more other Federal departments or agencies issued under title VI of the Act, the Secretary may, by agreement with such other departments or agencies where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules of procedures not inconsistent with this part, except that procedural requirements of the hearing agency if other than this Department may be adopted insofar as it is determined by the Secretary that variations from the procedures described in this section or elsewhere as may be required under this part do not impair the rights of the parties. The Secretary may also transfer the hearing of any complaint to any other department or agency, with the consent of that Department or Agency (1) where Federal financial assistance to the applicant or recipient of the other Department or Agency is substantially greater than that of the Department of State, or (2) upon determination by the Secretary that such transfer would be in the best interests of the Government of effectuating this part. Final decisions in all such cases, insofar as this part is concerned, shall be made in accordance with § 141.9.
§ 141.9 Decisions and notices.
(a) Decisions on record or review by the responsible Department official. The applicant or recipient shall be given reasonable opportunity to file with the officer presiding at the hearing briefs or other written statements of its contentions, and a copy of the final decision shall be given in writing to the applicant or recipient and to the complainant, if any. The officer presiding at the hearing shall render a decision on the matter.
(b) Decisions on record where a hearing is waived. Whenever a hearing is waived pursuant to § 141.8(a) a decision shall be made by the responsible Departmental official on the record and a copy of such decision shall be given in writing to the applicant or recipient, and to the complainant, if any.
(c) Rulings required. Each decision of an officer presiding at the hearing shall set forth his ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to comply.
(d) Appeal. Either party may appeal from a decision of the officer presiding at the hearing to the responsible Department official within 30 days of the mailing of the officer’s decision. In the absence of such an appeal the decision of the officer presiding at the hearings shall constitute the final decision of the Department subject to paragraph (e) of this section.
(e) Approval by Secretary. Any final decision by an officer (other than the Secretary) which provides for the suspension or termination of, or the refusal to grant or continue Federal financial assistance, or the imposition of any other sanction available under this part or the Act, shall promptly be transmitted to the Secretary who may approve such decision, may vacate it, or remit or mitigate any sanction imposed.
(f) Content of orders. The final decision may provide for suspension or termination of, or refusal to grant or continue Federal financial assistance, in whole or in part, to which this regulation applies, and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purposes of the Act and this part, including provisions designed to assure that no Federal financial assistance to which this regulation applies will thereafter be extended to the applicant or recipient determined by such decision to be in default in its performance of an assurance given by it pursuant to this part, or to have otherwise failed to comply with this part, unless and until it corrects its noncompliance and satisfies the responsible Department official that it will fully comply with this part.
(g) Post-termination proceedings. (1) An applicant or recipient adversely affected by an order issued under paragraph (f) of this section shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this regulation and provides reasonable assurance that it will fully comply with this regulation.
(2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (f) of this section may at any time request the responsible Departmental official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information establishing that the applicant or recipient has met the requirements of paragraph (g)(1) of this section. If the responsible Departmental official determines that those requirements have been satisfied, he shall restore such eligibility, but such determination shall be in writing and shall be supported by evidence and findings of fact which shall be retained by the Department.
(3) If the responsible Departmental official denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible Departmental official. The burden of substantiating compliance with the requirements of paragraph (g)(1) of this section shall be on the applicant or recipient. While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (f) of this section shall remain in effect.
§ 141.10 Judicial review.
Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.
§ 141.11 Effect on other regulations; forms and instructions.
Nothing in this part shall be deemed to supersede: Executive Orders 10925 and 11114 and regulations issued thereunder, or any other regulations or instructions, insofar as such regulations, or instructions prohibit discrimination on the ground of race, color, or national origin in any program or situation to which this regulation is inapplicable, or prohibit discrimination on any other ground.
(a) Forms and instructions. Each responsible Department official shall issue, and promptly make available to interested persons, forms and detailed instructions and procedures for effectuating this part as applied to programs to which this part applies and for which he is responsible.
(b) Supervision and coordination. The Secretary may, from time to time, assign to officials of the Department, or to officials of other departments or agencies of the Government with the consent of such department or agencies, responsibilities in connection with the effectuation of the purposes of title VI of the Act and this part including the achievement of effectiveness coordination and maximum uniformity within the Department and within the executive branch of the Government in the application of title VI and this part to similar programs and in similar situations. Any action taken, determination made, or requirement imposed by an official of another department or agency acting pursuant to an assignment of responsibility under this subsection shall have the same effect as though such action had been taken by the responsible official of this Department.
§ 141.12 Definitions.
As used in this part –
(a) The term Department means the Department of State and includes each of its operating agencies and other organizational units except the Agency for International Development.
(b) The term Secretary means the Secretary of State.
(c) The term responsible Department official with respect to any program receiving Federal financial assistance means the official of the Department having responsibility within the Department for such assistance or such official of the Department as the Secretary designates.
(d) The term United States means the States of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and the territories and possessions of the United States, and the term State means any one of the foregoing.
(e) The term Federal financial assistance includes (1) grants and loans of Federal funds, (2) the grant or donation of Federal property and interests in property, (3) the detail of Federal personnel, and (4) any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance or other benefits to individuals whether provided through employees of the recipient of Federal financial assistance or provided by others through contracts or other arrangements with the recipient.
(f) The terms program or activity and program mean all of the operations of any entity described in paragraphs (f)(1) through (4) of this section, any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship –
(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) Any other entity which is established by two or more of the entities described in paragraph (f)(1), (2), or (3) of this section.
(g) The term recipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organization, or other entity, or any individual, in any State to whom Federal financial assistance is extended directly or through another recipient, including any successor, assign, or transferee thereof, but such term does not include any ultimate beneficiary.
(h) The term primary recipient means any recipient which is authorized or required to extend Federal financial assistance to another recipient.
(i) The term applicant means one who submits an application, request, or plan required to be approved by a responsible Department official, or by a primary recipient, as a condition to eligibility for Federal financial assistance, and the term application means such an application, request, or plan.
(j) The term facility includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction, expansion, renovation, remodeling, alteration, or acquisition of facilities.
Appendix A to Part 141 – Federal Financial Assistance to Which This Part Applies
1. Mutual understanding between people of the United States and the people of other countries by educational and cultural exchange – studies, research, instruction and other educational activities – cultural exchanges (Mutual Educational and Cultural Exchange Act of 1961 – 75 Stat. 527-538).
2. Center for Cultural and Technical Interchange Between East and West – grant to State of Hawaii (Pub. L. 86-472, 74 Stat. 141).
3. Assistance to or in behalf of refugees designated by the President (Migration and Refugee Assistance Act of 1962 – 76 Stat. 121-124).
4. Donations of certain foreign language tapes and other training material to public and private institutions (Regulations of Administrator of General Services relating to surplus property – 41 CFR 101-6.2).
PART 142 – NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
Subpart A – General Provisions
§ 142.1 Purpose.
The purpose of this part is to effectuate section 504 of the Rehabilitation Act of 1973, which is designed to eliminate discrimination on the basis of handicap in any program or activity receiving Federal financial assistance.
§ 142.2 Application.
This part applies to all programs or activities directly affecting handicapped individuals in the United States carried on by recipients of Federal financial assistance pursuant to any authority held or delegated by the Secretary of State, including the types of Federal financial assistance listed in appendix A of this part. (appendix A may be revised from time-to-time by notice in the
(a) Any Federal financial assistance by way of insurance or guaranty contracts;
(b) Money paid, property transferred or other assistance extended before the effective date of this part;
(c) Any assistance to any individual who is the ultimate beneficiary; and
(d) Any procurement of goods or services, including the procurement of training. This part does not bar selection and treatment reasonably related to the foreign affairs objective or such other authorized purpose as the Federal assistance may have. It does not bar selections which are limited to particular groups where the purpose of the Federal financial assistance calls for such a limitation, nor does it bar special treatment including special courses of training, orientation or counseling consistent with such purpose.
§ 142.3 Definitions.
As used in this part, the term:
(a) Executive order means Executive Order 11914, entitled “Nondiscrimination with Respect to the Handicapped in Federally-Assisted Programs,” issued April 28, 1976.
(b) The Act means the Rehabilitation Act of 1973, Pub. L. 93-112, as amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, and the Rehabilitation Act of Amendments of 1978, Pub. L. 95-602.
(c) Section 504 means section 504 of the Rehabilitation Act of 1973, Pub. L. 93-112, as amended by the Rehabilitation Act Amendments of 1974, Pub. L. 93-516, 29 U.S.C. 794: amendments of 1978, Pub. L. 95-602.
(d) Department means the Department of State and includes each of its organizational units. It does not include the Agency for International Development.
(e) Secretary means the Secretary of State or any officer or employee of the Department to whom the Secretary has heretofore delegated, or to whom the Secretary may hereafter delegate, the authority to act under the regulations in this part.
(f) Recipient means any State or its political subdivision, any instrumentality of a state or its political subdivision, any public or private agency, institution, organization, or other entity, or any person to which Federal financial assistance is extended directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance and any sovereign foreign government.
(g) Applicant for Assistance means one who submits an application, request, or plan required to be approved by a Department official or by a recipient as a condition or becoming a recipient.
(h) Federal financial assistance means any grant, loan, contract (other than a procurement contract or a contract of insurance or guaranty), cooperative agreement, or any other arrangement by which the Department provides or otherwise makes available assistance in the form of:
(1) Funds;
(2) Services of Federal personnel; or
(3) Real and personal property or any interest in or use of such property, including:
(i) Transfers or leases of such property for less than fair market value or for reduced consideration; and
(ii) Proceeds from a subsequent transfer or lease of such property if the Federal share of its fair market value is not returned to the Federal Government.
(i) Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, or other real or personal property or interest in such property.
(j) Handicapped person. (1) means any person who: (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i) Physical or mental impairment means (A) 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 (B) 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.
(ii) Major life activities means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(iii) Has a record of such an impairment means has a story of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
(iv) Is regarded as having an impairment means (A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation; (B) has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairments, or (C) has none of the impairments defined in paragraph (j)(2)(i) of this section but is treated by a recipient as having such an impairment.
(k) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with reasonable accommodation, can perform the essential functions of the job in question;
(2) With respect to public pre-school, elementary, secondary, or adult educational services, a handicapped person, (i) of an age during which nonhandicapped persons are provided such services, (ii) of any age during which it is mandatory under State law to provide such services to handicapped persons, or (iii) to whom a State is required to provide a free appropriate public education under section 612 of the Education of the Handicapped Act; and
(3) With respect to postsecondary and vocational education services, a handicapped person who meets the academic and technical standard requisite to admission or participation in the recipient’s education program or activity;
(4) With respect to other services, a handicapped person who meets the essential eligibility requirements for the recipient of such services.
(l) Handicap means any conditions or characteristic that renders a person a handicapped person as defined in paragraph (j) of this section.
(m) Program or activity means all of the operations of any entity described in paragraphs (m)(1) through (4) of this section, any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or (ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship –
(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) Any other entity which is established by two or more of the entities described in paragraph (m)(1), (2), or (3) of this section.
§ 142.4 Discrimination prohibited.
(a) General. 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 which receives Federal financial assistance.
(b) Discriminatory actions prohibited. (1) A recipient, 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 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 person 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) Aid or perpetuate discrimination against a qualified handicapped person by providing significant assistance to any agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipient’s program or activity;
(vi) Deny a qualified handicapped person the opportunity to participate as a member of planning or advisory boards; or
(vii) Otherwise limit a qualified handicapped person in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving an aid, benefit, or service.
(2) For purposes of this part, aids, benefits, and services to be effective, are not required to produce identical result or level of achievement for handicapped and nonhandicapped persons, but must afford handicapped person equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement, in the most integrated setting appropriate to the person’s needs.
(3) Despite the existence of separate or different programs or activities provided in accordance with this part, a recipient may not deny a qualified handicapped person the opportunity to participate in such aid, benefits, or services that are not separate or different.
(4) A recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program or activity with respect to handicapped persons, or (iii) that perpetuate the discrimination with respect to another recipient if both recipients are subject to common administrative control or are agencies of the same State.
(5) In determining the site or location or a facility, an applicant for assistance or a recipient may not make selections (i) that have the effect of excluding handicapped persons from, denying them the benefits of, or otherwise subjecting them to discrimination under any program or activity that receives Federal financial assistance of (ii) that have the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the program or activity with respect to handicapped persons.
(6) As used in this section, the aid, benefit, or service provided under a program or activity receiving Federal financial assistance includes any aid, benefit, or service provided in or through a facility that has been constructed, expanded, altered, leased or rented, or otherwise acquired, in whole or in part with Federal financial assistance.
(c) Aid, benefits, or services limited by Federal law. The exclusion of a handicapped person from aid, benefits, or services limited by Federal statute or executive order to a different class of handicapped persons is not prohibited by this part.
(d) Recipients shall administer programs or activities in the most integrated setting appropriate to the needs of qualified handicapped persons.
(e) Recipients shall ensure that communications with their applicants, employees, and handicapped persons participating in their programs or activities, or receiving aids, or benefits of services, are available to persons with impaired vision and hearing in appropriate modes, including braille, enlarged type, sign language and telecommunication devices for the deaf.
§ 142.5 Assurances required.
(a) Assurances. An applicant for Federal financial assistance to which this part applies shall submit an assurance on a form specified by the Secretary, that the program or activity will be operated in compliance with this part. An applicant may incorporate these assurances by reference in subsequent applications to the Department.
(b) Duration of obligations. (1) In the case of Federal financial assistance extended in the form of real property or to provide real property or structures on the property, the assurance will obligate the recipient or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used for the purposes for which Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits.
(2) Where no transfer of property is involved but property is purchased or improved with Federal financial assistance, the recipient shall agree to include the covenant described in paragraph (c)(1) of this section in the instrument effecting or recording any subsequent transfer of the property.
(3) Where Federal financial assistance is provided by the Department in the form of real property or interest in real property, the covenant shall also include a condition coupled with a right to be reserved by the Department to revert title to the property in the event of a breach of the covenant. If a transferee of real property proposes to mortgage or otherwise encumber the real property as security for financing construction of new, or improvement of existing facilities on the property for the purposes for which the property was transferred, the Secretary may, upon request of the transferee and if necessary to accomplish such financing and upon such conditions as the Secretary deems appropriate, agree to forbear the exercise of such right to revert title for so long as the lien of such mortgage or other encumbrance remains effective.
§ 142.6 Remedial action, voluntary action, and self-evaluation.
(a) Remedial action. (1) If the Secretary finds that a recipient has discriminated against persons on the basis of handicap in violation of section 504 of the Act or this part, the recipient shall take such remedial action as the Secretary deems necessary to overcome the effects of the discrimination.
(2) Where a recipient is found to have discriminated against persons on the basis of handicap in violation of section 504 of the Act or this part and where another recipient exercises control over the recipient that has discriminated, the Secretary, where appropriate, may require either or both recipients to take remedial action.
(3) The Secretary may, where necessary to overcome the effects of discrimination in violation of section 504 of the Act or this part, require a recipient to take action (i) with respect to handicapped persons who are no longer participants in the recipient’s program or activity but who were participants in the program when such discrimination occurred, or (ii), with respect to handicapped persons who would have been participants in the program or activity had the discrimination not occurred.
(b) Voluntary action. A recipient may take steps, in addition to any action required by this part, to overcome the effects of conditions that resulted in limited participation in the recipient’s program or activity by qualified handicapped persons.
(c) Self-evaluation. (1) A recipient shall, within six months of the effective date of this part:
(i) Evaluate, with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons, its current policies and practices and the effects thereof that do not or may not meet the requirements of this part;
(ii) Modify, after consultation with interested persons, including handicapped persons or organizations representing handicapped persons, any policies and practices that do not meet the requirements of this part; and
(iii) Take, after consultation with interested persons, including handicapped persons or organizations representing handicapped persons, appropriate remedial steps to eliminate the effects of any discrimination that resulted from adherence to these policies and practices.
(2) A recipient shall, for at least three years following completion of the evaluation required under paragraph (c)(1) of this section, maintain on file, make available for public inspection, and provide to the Secretary upon request: (i) A list of the interested persons consulted, (ii) a description of areas examined and any problems identified, and (iii) a description of any modifications made and of any remedial steps taken.
§ 142.7 Designation of responsible employee and adoption of grievance procedures.
(a) Designation of responsible employee. A recipient that employs 15 or more persons shall designate at least one person to coordinate its efforts to comply with this part.
(b) Adoption of grievance procedures. A recipient that employs 15 or more persons shall adopt grievance procedures that incorporate appropriate due process for the prompt and equitable resolution of complaints alleging any action prohibited by this part.
§ 142.8 Notice.
(a) A recipient shall take appropriate initial and continuing steps to notify participants, beneficiaries, applicants, and employees, including those with impaired vision or hearing, and unions or professional organizations holding collective bargaining or professional agreements with the recipient that it does not discriminate on the basis of handicap in violation of section 504 of the Act or this part. The notification shall state, where appropriate, that the recipient does not discriminate in admission or access to, or treatment or employment in, its programs or activities. The notification shall also include an identification of the responsible employee designated pursuant to § 142.7(a). A recipient shall make the initial notification required by this paragraph within 90 days of the effective date of this part. Methods of initial and continuing notification may include but are not limited to the posting of notices, publication in newspapers and magazines, placement of notices in recipients’ publications, distribution of memoranda or other written communications; and with persons with impaired vision and hearing, through appropriate modes including braille, enlarged type, sign language, and telecommunication devices for the deaf.
(b) If a recipient publishes or uses recruitment materials or publications containing general information that it makes available to participants, beneficiaries, applicants or employees, it shall include in those materials or publications a statement of the policy described in paragraph (a) of this section. A recipient may meet the requirement of the paragraph either by including appropriate inserts in existing materials and publications or by revising and reprinting the materials and publications.
§ 142.9 Administrative requirements for small recipients.
The Secretary may require any recipient with fewer than fifteen employees, or any class of such recipients, to comply with § 142.7, in whole or in part, when the Secretary finds a violation of this part or finds that such compliance will not significantly impair the ability of the recipient or class of recipients to provide benefits or services.
§ 142.10 Effect of State or local law or other requirements and effect of employment opportunities.
(a) The obligation to comply with this part is not obviated or alleviated by the existence of any State or local law or other requirement that, on the basis of handicap, imposes prohibitions or limits upon the eligibility of qualified handicapped persons to receive services or to practice any occupation or profession.
(b) The obligation to comply with this part is not obviated or alleviated because employment opportunities in any occupation or profession are or may be more limited for handicapped persons than for nonhandicapped persons.
Subpart B – Employment Practices
§ 142.11 Discrimination prohibited.
(a) General. (1) No qualified handicapped person shall, on the basis of handicap, be subjected to discrimination in employment under any program or activity receiving Federal financial assistance.
(2) A recipient shall make all decisions concerning employment under any program or activity to which this part applies in a manner which ensures that discrimination on the basis of handicap does not occur and may not limit, segregate, or classify applicants or employees in any way that adversely affects their opportunities or status because of handicap.
(3) A recipient may not participate in a contractual or other relationship that has the effect of subjecting qualified handicapped applicants or employees to discrimination prohibited by this subpart. This includes relationships with employment and referral agencies, with labor unions, with organizations providing or administering fringe benefits to employees of the recipient, and with organizations providing training and apprenticeships.
(b) Specific activities. The provisions of this part apply to:
(1) Recruitment, advertising, and the processing of applications for employment;
(2) Hiring, upgrading, promotion, award of tenure, demotion, transfer, layoff, termination, right to return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation and changes in compensation;
(4) Job assignments, job classification, organizational structures, position descriptions, lines of progression, and seniority lists;
(5) Leaves of absence, sick leave, or any other leave;
(6) Fringe benefits available by virtue of employment whether or not administered by the recipient;
(7) Selection and financial support for training, including apprenticeship, professional meetings, conferences and other related activities, and selection for leaves of absence to pursue training;
(8) Employer sponsored activities, including those that are social or recreational; and
(9) Any other condition, or privilege of employment.
(c) A recipient’s obligation to comply with this subpart is not affected by any inconsistent term of any collective bargaining agreement to which it is a party.
§ 142.12 Reasonable accommodation.
(a) A recipient shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of the program or activity.
(b) Reasonable accommodation may include: (1) Making facilities used by employees readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions.
(c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of a recipient’s program or activity, factors to be considered include:
(1) The overall size of the recipient’s program with respect to number and type of facilities, and size of budget;
(2) Job restructuring, part-time or modified work schedules, acquisition and or modification of equipment of devices such as telecommunication devices for the deaf, the provision of readers or interpreters and other similar actions including the use of braille, enlarged type, and sign language, when appropriate.
(3) The nature and cost of the accommodation needed.
(d) A recipient may not deny any employment opportunity to a qualified handicapped employee or applicant if the basis for the denial is the need to make reasonable accommodation to the physical or mental limitations of the employee or applicant.
§ 142.13 Employment criteria.
(a) A recipient may not make use of any employment test or other selection criterion that screens out or tends to screen out handicapped persons or any class of handicapped persons unless:
(1) The test score or other selection criterion, as used by the recipient, is shown to be job-related for the position in question, and
(2) Alternative job-related tests or criteria that do not screen out or tend to screen out as many handicapped persons are not shown by the Secretary to be available.
(b) A recipient shall select and administer tests concerning employment to ensure that when administered to any applicant or employee who has a handicap that impairs sensory, manual, speaking, or other skills, the test results accurately reflect the applicant’s or employee’s job skills, aptitude, or whatever factor the test purports to measure, rather then reflecting the applicant’s impaired sensory, manual, speaking, or other skills (except where those skills are the factors that the test purports to measure).
§ 142.14 Preemployment inquiries.
(a) Except as provided in paragraphs (b) and (c) of this section, a recipient may not conduct a preemployment medical examination or may not make preemployment inquiry of an applicant as to whether the applicant is a handicapped person or as to the nature or severity of a handicap. A recipient may, however, make preemployment inquiry into an applicant’s ability to perform job-related functions.
(b) When a recipient is taking remedial action to correct the effects of past discrimination pursuant to § 142.6(a), when a recipient is taking voluntary action to overcome the effect of conditions that resulted in limited participation in its federally assisted program or activity pursuant to § 142.6(b), or when a recipient is taking affirmative action pursuant to section 503 of the Act, the recipient may invite applicants for employment to indicate whether and to what extent they are handicapped: Provided, That:
(1) The recipient states clearly on any written questionnaire used for this purpose or makes clear orally, if no written questionnaire is used, that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary or affirmative action efforts; and
(2) The recipient states clearly that the information is being requested on a voluntary basis, that it will be kept confidential as provided in paragraph (d) of this section, that refusal to provide it will not subject the applicant or employee to any adverse treatment, and that is will be used only in accordance with this part.
(c) Nothing in this section shall prohibit a recipient from conditioning an offer of employment on the results of a medical examination conducted prior to the employee’s entrance on duty. Provided, That: (1) All entering employees are subjected to such an examination regardless of handicap, and (2) the results of such an examination are used only in accordance with the requirement of this part.
(d) Information obtained in accordance with this section as to the medical condition or history of the applicant shall be collected and maintained on separate forms that shall be accorded confidentiality as medical records except that:
(1) Supervisors and managers may be informed regarding restrictions on the work or duties of handicapped persons and regarding necessary accommodation;
(2) First aid and safety personnel may be informed, where appropriate, if the condition might require emergency treatment; and
(3) Government officials investigating compliance with the Act shall be provided relevant information upon request.
Subpart C – Accessibility
§ 142.15 Discrimination prohibited.
No qualified handicapped person shall, because a recipient’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 to which the part applies.
§ 142.16 Existing facilities.
(a) Accessibility. A recipient shall operate each program or activity to which this part applies so that when each part is viewed in its entirety it is readily accessible to and usable by handicapped persons. This paragraph does not require a recipient to make each of its existing facilities or every part of an existing facility accessible to and usable by handicapped persons.
(b) Methods. A recipient may comply with the requirement of paragraph (a) of this section through such means as the addition of equipment (e.g., telecommunication device for the deaf) redesign of equipment, reassignment of classes or other services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of health, welfare, or other social services at alternate accessible sites, alteration of existing facilities and construction of new facilities in conformance with the requirement of § 142.18, or any other method that results in making its program or activity accessible to handicapped persons. A recipient is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with paragraph (a) of this section. In choosing among available methods for meeting the requirement of paragraph (a) of this section, a recipient shall give priority to those methods that serve handicapped persons in the most integrated setting appropriate.
(c) Time period. A recipient shall comply with the requirement of paragraph (a) of this section within 60 days of the effective date of this part except that where structural changes in facilities are necessary, such changes shall be made within three years of the effective date of this part, but in any event as expeditiously as possible.
(d) Transition plan. In the event that structural changes to facilities are necessary to meet the requirement of paragraph (a) of this section, a recipient shall develop, within six months of the effective date of this part, a transition plan setting forth the steps necessary to complete such changes. The plan shall be developed with the assistance of interested persons, including handicapped persons or organizations representing handicapped persons. 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 recipient’s facilities that limit the accessibility of its program or activity 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 full accessibility under paragraph (a) of 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;
(4) Indicate the person responsible for implementation of the plan; and
(5) A list of all handicapped persons and organizations consulted in the plan formulation process.
(e) Notice. The recipient shall adopt and implement procedures to ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of services, activities, and facilities that are accessible to and usable by handicapped persons.
§ 142.17 New construction.
(a) Design and construction. Each facility or part of a facility constructed by, on behalf of, or for the use of a recipient shall be designed, constructed, and operated in a manner so that the facility or part of the facility is accessible to and usable by persons with handicaps, if the construction was commenced after the effective date of this part.
(b) Alteration. Each facility or part of a facility which is altered by, on behalf of, or for the use of a recipient after the effective date of this part in a manner that effects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered so that the altered portion of the facility is readily accessible to and usable by persons with handicaps.
(c) Conformance with Uniform Federal Accessibility Standards. (1) Effective as of January 18, 1991, design, construction, or alteration of buildings in conformance with sections 3-8 of the Uniform Federal Accessibility Standards (USAF) (appendix A to 41 CFR subpart 101-19.6) shall be deemed to comply with the requirements of this section with respect to those buildings. Departures from particular technical and scoping requirements of UFAS by the use of other methods are permitted where substantially equivalent or greater access to and usability of the building is provided.
(2) For purposes of this section, section 4.1.6(1)(g) of UFAS shall be interpreted to exempt from the requirements of UFAS only mechanical rooms and other spaces that, because of their intended use, will not require accessibility to the public or beneficiaries or result in the employment or residence therein of persons with physical handicaps.
(3) This section does not require recipients to make building alterations that have little likelihood of being accomplished without removing or altering a load-bearing structural member.
§§ 142.18-142.40 [Reserved]
Subpart D – Postsecondary Education
§ 142.41 Application of this subpart.
Subpart D applies to postsecondary education programs and activities, including postsecondary vocational education programs or activities, that receive Federal financial assistance from the Department of State, and to recipients that operate, or that receive or benefit from Federal financial assistance for the operation of, such programs or activities.
§ 142.42 Admissions and recruitment.
(a) General. Qualified handicapped persons may not, on the basis of handicap, be denied admission or be subjected to discrimination in admission or recruitment by a recipient to which this subpart applies.
(b) Admissions. In administering its admission policies, a recipient to which this subpart applies:
(1) May not apply limitations upon the number or proportion of handicapped persons who may be admitted;
(2) May not make use of any test or criterion for admission that has a disproportionate, adverse effect on handicapped persons or any class of handicapped persons unless (i) the test or criterion, as used by the recipient, has been validated as a predictor of success in the education program of activity in question and (ii) alternate tests or criteria that have a less disproportionate, adverse effect are not shown by the Secretary to be available;
(3) Shall assure itself that (i) admissions tests are selected and administered so as to ensure that, when a test is administered to an applicant who has a handicap that impairs sensory, manual, or speaking skills, the test results accurately reflect the applicant’s aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the applicant’s impaired sensory, manual, speaking or other skills (except where those skills are the factors that the test purports to measure); (ii) admissions tests that are designed for persons with impaired sensory, manual, speaking or other skills are offered as often and in as timely a manner as are other admissions tests; and (iii) admissions tests are administered in facilities that, are accessible to handicapped persons; and
(4) Except as provided in paragraph (c) of this section, may not make preadmission inquiry as to whether an applicant for admission is a handicapped person but, after admission, may make inquiries on a confidential basis as to handicaps that may require accommodation.
(c) Preadmission inquiry exception. When a recipient is taking remedial action to correct the effects of past discrimination pursuant to § 142.6(a) or when a recipient is taking voluntary action to overcome the effects of conditions that resulted in limited participation in its federally assisted program or activity pursuant to § 142.6(b), the recipient may invite applicants for admissions to indicate whether and to what extent they are handicapped; Provided, That: (1) The recipient states clearly on any written questionnaire used for this purpose or makes clear orally if no written questionnaire is used that the information requested is intended for use solely in connection with its remedial action obligations or its voluntary action efforts; and
(2) The recipient states clearly that the information is being requested on a voluntary basis, that it will be kept confidential, that refusal to provide it will not subject the applicant to any adverse treatment, and that it will be used only in accordance with this part.
(d) Validity studies. For the purpose of paragraph (c)(2) of this section, a recipient may base prediction equations on first year grades, but shall conduct periodic validity studies against the criterion of overall success in the education program or activity in question in order to monitor the general validity of the test scores.
§ 142.43 Treatment of students; general.
(a) No qualified handicapped student shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any academic, research, occupational, training, housing, health, insurance, counseling, financial aid, physical education, athletics, recreation, transportation, other extracurricular, or other postsecondary education aid, benefits, or services to which this subpart applies.
(b) A recipient to which this subpart applies that considers participation by students in education programs or activities not operated wholly by the recipient as part of, or equivalent to, an education program or activity operated by the recipient shall assure itself that the other education program or activity, as a whole, provides an equal opportunity for the participation of qualified handicapped persons.
(c) A recipient to which this subpart applies may not, on the basis of handicap, exclude any qualified handicapped student from any course, course of study, or other part of its education program or activity.
(d) A recipient to which this subpart applies shall operate its programs or activities in the most integrated setting appropriate.
§ 142.44 Academic adjustments.
(a) Academic requirements. A recipient to which this subpart applies shall make such modifications to its academic requirements as are necessary to ensure that such requirements do not discriminate or have the effect of discrimination, on the basis of handicap, against a qualified handicapped applicant or student. Academic requirements that the recipient can demonstrate are essential to the instruction being pursued by such student or to any directly related licensing requirement will not be regarded as discriminatory within the meaning of this section. Modifications may include changes in the length of time permitted for the completion of degree requirements, substitution of specific courses required for the completion of degree requirements, and adaptation of the manner in which specific courses are conducted.
(b) Other rules. A recipient to which this subpart applies may not impose upon handicapped students other rules, such as the prohibition of tape recorders in classrooms or of dog guides in campus buildings, that have the effect of limiting the participation of handicapped students in the recipient’s education program or activity.
(c) Course examinations. In its examinations or other procedures for evaluating students’ academic achievement, a recipient to which this subpart applies shall provide such methods for evaluating the achievement of students who have a handicap that impairs sensory, manual, speaking or other skills as will best ensure that the results of the evaluation represent the student’s achievement in the course, rather than reflecting the student’s impaired sensory, manual, speaking or other skills (except where such skills are the factors that the test purports to measure).
(d) Auxiliary aids. (1) A recipient to which this subpart applies shall take such steps as are necessary to ensure that no handicapped student is denied the benefits of, excluded from participation in, or otherwise subjected to discrimination because of the absence of educational auxiliary aids for students with impaired sensory, manual, speaking or other skills.
(2) Auxiliary aids may include taped texts, interpreters, telecommunication devices for the deaf or other effective methods of making orally delivered materials available to students with hearing impairments, readers in libraries for students with visual impairments, classroom equipment adapted for use by students with manual impairments, and other similar services and actions. Recipients need not provide attendants, individually prescribed devices, readers for personal use or study, or other devices or services of a personal nature.
§ 142.45 Housing.
(a) Housing provided by the recipient. A recipient that provides housing to its nonhandicapped students shall provide comparable, convenient, and accessible housing to handicapped students at the same cost as to others. At the end of the transition period provided for in subpart C of this part, such housing shall be available in sufficient quantity and variety so that the scope of handicapped students’ choice of living accommodation is, as a whole, comparable to that of nonhandicapped students.
(b) Other housing. A recipient that assists any agency, organization, or person in making housing available to any of its students shall take such action as may be necessary to assure itself that such housing is, as a whole, made available in a manner that does not result in discrimination on the basis of handicap.
§ 142.46 Financial and employment assistance to students.
(a) Provisions of financial assistance. (1) In providing financial assistance of qualified handicapped persons, a recipient to which this subpart applies may not:
(i) On the basis of handicap, provide less assistance than is provided to nonhandicapped persons, limit eligibility for assistance, or otherwise discriminate; or
(ii) Assist any entity or person that provides assistance to any of the recipient’s students in a manner that discriminates against qualified handicapped persons on the basis of handicap.
(2) A recipient may administer or assist in the administration of scholarships, fellowships, or other forms of financial assistance established under wills, trusts, bequests, or similar legal instruments that require awards to be made on the basis of factors that discriminate or have the effect of discriminating on the basis of handicap only if the overall effect of the award of scholarships, fellowships, and other forms of financial assistance is not discriminatory on the basis of handicap.
(b) Assistance in making available outside employment. A recipient that assists any agency, organization, or person in providing employment opportunities to any of its students shall assure itself that such employment opportunities, as a whole, are made available in a manner that would not violate subpart B if they were provided by the recipient.
(c) Employment of students by recipients. A recipient that employs any of its students may not do so in a manner that violates subpart B.
§ 142.47 Non-academic services.
(a) Physical education and athletics. (1) In providing physical education courses, athletics and similar aid, benefits, or services to any of its students, a recipient to which this subpart applies may not discriminate on the basis of handicap. A recipient that offers physical education courses or that operates or sponsors intercollegiate, club, or intramural athletics shall provide to qualified handicapped students an equal opportunity for participation in these activities.
(2) A recipient may offer to handicapped students physical education and athletic activities that are separate or different only if separate or differentiation is consistent with the requirements of § 142.43(d) and only if no qualified handicapped student is denied the opportunity to compete for teams or to participate in courses that are not separate or different.
(b) Counseling and placement services. A recipient to which this subpart applies that provides personal, academic or vocational counseling, guidance, or placement services to its students shall provide these services without discrimination on the basis of handicap. The recipient shall ensure that qualified handicapped students are not counseled toward more restrictive career objectives than are nonhandicapped students with similar interests and abilities. This requirement does not preclude a recipient from providing factural information about licensing and certification requirements that may present obstacles to handicapped persons in their pursuit of particular careers.
(c) Social organizations. A recipient that provides significant assistance to fraternities, sororities, or similar organizations shall assure itself that the membership practices of such organizations do not permit discrimination otherwise prohibited by this subpart.
§§ 142.48-142.60 [Reserved]
Subpart E – Health, Welfare, Social, and Other Services
§ 142.61 Application of this subpart.
Subpart E applies to health, welfare, social and other programs or activities that receive Federal financial assistance and to recipients that operate, or that receive or benefit from Federal financial assistance for the operation of such programs or activities.
(a) General. In providing health, welfare, social and other services or benefits, a recipient may not, on the basis of handicap:
(1) Deny a qualified handicapped person these benefits or services;
(2) Afford a qualified handicapped person an opportunity to receive benefits or services that are not equal to those offered nonhandicapped persons;
(3) Provide a qualified handicapped person with benefits or services that are not as effective (as defined in § 142.4(b)) as the benefits or services provided to others;
(4) Provide benefits or services in a manner that limits or has the effect of limiting the participation of qualified handicapped persons; or
(5) Provide different or separate benefits or services to handicapped persons except where necessary to provide qualified handicapped persons with benefits and services that are as effective as those provided to others.
(b) Notice. A recipient that provides notice concerning benefits or services or written material concerning waivers of rights or consent to treatment shall take such steps as are necessary to ensure that qualified handicapped persons, including those with impaired sensory or speaking skills, are not denied effective notice because of their handicap.
(c) Emergency treatment for the hearing impaired. A recipient hospital that provides health services or benefits shall establish a procedure for effective communication with persons with impaired hearing for the purpose of providing emergency health care.
(d) Auxiliary aids. (1) A recipient to which this subpart applies that employs 15 or more persons shall provide appropriate auxiliary aids to persons with impaired sensory, manual, speaking or other skills (where necessary) to afford such persons an equal opportunity to benefit from the service in question.
(2) The Secretary may require recipients with fewer than 15 employees to provide auxiliary aids where the provision of aids would not significantly impair the ability of the recipient to provide its benefits or services.
(e) For the purpose of this paragraph, auxiliary aids may include brailled and taped material, interpreters, and other aids for persons with impaired hearing or vision.
§ 142.63 Drug and alcohol addicts.
A recipient to which this subpart applies that operates a general hospital or outpatient facility may not discriminate in admission or treatment against a drug or alcohol abuser or alcoholic who is suffering from a medical condition, because of the person’s drug or alcohol abuse or alcoholism.
Subpart F – Procedures
§ 142.70 Procedures.
The procedural provisions applicable to title VI of the Civil Rights Act of 1964 apply to this part. These procedures are found in 22 CFR subchapter O, part 141.
Appendix A to Part 142 – Federal Financial Assistance to Which This Part Applies
Types of Federal Financial Assistance Administered by the Department of State Subject to Handicap Discrimination Regulations.
1. Resettlement of Refugees in the United States Under the Migration and Refugee Assistance Act of 1962, as amended (22 U.S.C. 2601 et seq. (1976)).
2. Non-reimbursable assignment of Foreign Service officers to State or local governments, public schools, community colleges, and other public or private nonprofit organizations designated by the Secretary of State (section 576 of the Foreign Service Act of 1946, as amended; 22 U.S.C. 966 (1976)).
3. Diplomat-in-Residence Program of the Foreign Service Institute under Title VII of the Foreign Service Act of 1946, as amended (22 U.S.C. 1041, et seq. (1976)).
PART 143 – NONDISCRIMINATION ON THE BASIS OF AGE IN PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
Subpart A – General
§ 143.1 What is the purpose of the age discrimination regulations?
The purpose of these regulations is to set out the policies and procedures for the three foreign affairs agencies (State, USICA and AID) under the Age Discrimination Act of 1975 and the government-wide age discrimination regulations at 45 CFR part 90 (published at 44 FR 33768, June 12, 1979). The Act and the government-wide regulations prohibit discrimination on the basis of age in programs or activities in the United States receiving federal financial assistance. The Act and the government-wide regulations permit federally assisted programs and activities, and recipients of federal funds, to continue to use age distinctions and factors other than age which meet the requirements of the Act and the government-wide regulations.
§ 143.2 To what programs or activities do these regulations apply?
These regulations apply to each foreign affairs agency recipient and to each program or activity in the United States operated by the recipient which receives or benefits from federal financial assistance provided by any of these agencies.
§ 143.3 Definitions.
(a) The following terms used in this part are defined in the government-wide regulations (45 CFR 90.4, 44 FR 33768):
Act
Action
Age
Age distinction
Age-related term
Federal financial assistance
Recipient (including subrecipients)
United States
(b) As used in this part:
(1) Agency means the Department of State, the U.S. International Communication Agency, and the Agency for International Development.
(2) Program or activity means all of the operations of any entity described in paragraphs (b)(2)(i) and (iv) of this section, any part of which is extended Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution, or a public system of higher education; or
(B) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private organization, or an entire sole proprietorship –
(1) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(B) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(iv) Any other entity which is established by two or more of the entities described in paragraph (b)(2)(i), (ii), or (iii) of this section.
(3) Secretary means the Secretary of State, the Director of the U.S. International Communication Agency, and the Administrator of the Agency for International Development, or the designee of such officer.
(4) Subrecipient means any of the entities in the definition of “recipient” to which a recipient extends or passes on Federal financial assistance. A subrecipient is generally regarded as a recipient of Federal financial assistance and has all the duties of a recipient in these regulations.
Subpart B – Standards for Determining Age Discrimination
§ 143.11 Standards.
The standards each agency uses to determine whether an age distinction or age-related term is prohibited are set out in part 90 (primarily subpart B) of 45 CFR.
Subpart C – Duties of Agency Recipients
§ 143.21 General responsibilities.
Each agency recipient has primary responsibility to ensure that its programs and activities are in compliance with the Act, the government-wide regulations, and these regulations.
§ 143.22 Notice to subrecipients.
Where a recipient passes on Federal financial assistance from an agency to subrecipients, the recipient shall provide the subrecipients written notice to their obligations under these regulations.
§ 143.23 Self-evaluation.
(a) Each recipient employing the equivalent of 15 or more full-time employees shall complete a one-time written self-evaluation of its compliance under the Act within 18 months of the effective date of these regulations.
(b) In its self-evaluation each recipient shall identify each age distinction it uses and justify each age distinction it imposes on the program or activity receiving Federal financial assistance from an agency.
(c) Each recipient shall take corrective action whenever a self-evaluation indicates a violation of these regulations.
(d) Each recipient shall make the self-evaluation available on request to the agency and to the public for a period of three years following its completion.
§ 143.24 Information requirements.
Each recipient shall:
(a) Make available upon request to the agency information necessary to determine whether the recipient is complying with the regulations.
(b) Permit reasonable access by the agency to the books, records, accounts, and other recipient facilities and sources of information to the extent necessary to determine whether a recipient is in compliance with these regulations.
Subpart D – Investigation, Conciliation, and Enforcement Procedures
§ 143.31 Compliance reviews.
(a) The agency may conduct compliance reviews and pre-award reviews of recipients that will permit it to investigate and correct violations of these regulations. The agency may conduct these reviews even in the absence of a complaint against a recipient. The review may be as comprehensive as necessary to determine whether a violation of these regulations has occurred.
(b) If a compliance review or pre-award review indicates a violation of this part, the agency will attempt to achieve voluntary compliance with the Act. If voluntary compliance cannot be achieved, the agency will arrange for enforcement as described in § 143.36.
§ 143.32 Complaints.
(a) Any person, individually or as a member of a class or on behalf of others, may file a complaint with an agency, alleging discrimination prohibited by these regulations based on an action occurring on or after July 1, 1979. A complainant shall file a complaint within 180 days from the date the complainant first had knowledge of the alleged act of discrimination. However, for good cause shown, the agency may extend this time limit.
(b) The agency will attempt to facilitate the filing of complaints wherever possible, including taking the following measures:
(1) Accepting as a sufficient complaint, any written statement which identifies the parties involved, describes generally the action or practice complained of, and is signed by the complainant.
(2) Freely permitting a complainant to add information to the complaint to meet the requirements of a sufficient complaint.
(3) Widely disseminating information regarding the obligations of recipients under the Act and these regulations.
(4) Notifying the complainant and the recipient of their rights under the complaint procedure, including the right to have a representative at all stages of the complaint process.
(5) Notifying the complainant and the recipient (or their representatives) of their right to contact the agency for information and assistance regarding the complaint resolution process.
(c) The agency will return to the complainant any complaint outside the jurisdiction of these regulations and will state the reason(s) why it is outside the jurisdiction of these regulations.
§ 143.33 Mediation.
(a) Referral of complaints for mediation. The agency will refer to the Federal Mediation and Conciliation Service all complaints that:
(1) Fall within the jurisdiction of these regulations; and
(2) Contain all information necessary for further processing.
(b) Both the complainant and the recipient shall participate in the mediation process to the extent necessary to reach an agreement or make an informed judgment that an agreement is not possible. There must be at least one meeting with the mediator, before the agency will accept a judgment that an agreement is not possible. However, the recipient and the complainant need not meet with the mediator at the same time.
(c) If the complainant and the recipient reach an agreement, the mediator shall prepare a written statement of the agreement and have the complainant and recipient sign it. The mediator shall send a copy of the agreement to the agency. The agency shall take no further action on the complaint unless the complainant or the recipient fails to comply with the agreement.
(d) The mediator shall protect the confidentiality of all information obtained in the course of the mediation process. No mediator shall testify in any adjudicative proceeding, produce any document, or otherwise disclose any information obtained in the course of the mediation process without prior approval of the head of the mediation agency.
(e) The agency will use the mediation process for a maximum of 60 days after receiving a complaint. Mediation ends if:
(1) Sixty days elapse from the time the agency receives the complaint; or
(2) Prior to the end of that 60-day period, an agreement is reached; or
(3) Prior to the end of that 60-day period, the mediator determines that an agreement cannot be reached.
(f) The mediator shall return unresolved complaints to the agency.
§ 143.34 Investigation.
(a) Informal investigation. (1) The agency will investigate complaints that are unresolved after mediation or are reopened because of a violation of a mediation agreement.
(2) As part of the initial investigation, the agency will use informal fact finding methods, including joint or separate discussions with the complainant and recipient to establish the facts, and, if possible, settle the complaint on terms that are mutually agreeable. The agency may seek the assistance of any involved State program agency.
(3) The agency will put any agreement in writing and have it signed by the parties and an authorized official of the agency.
(4) The settlement shall not affect the operation of any other enforcement efforts of the agency, including compliance reviews and other individual complaints which may involve the recipient.
(5) The settlement is not a finding of discrimination against a recipient.
(b) Formal investigation. If the agency cannot resolve the complaint through informal investigation, it will begin to develop formal findings through further investigation of the complaint. If the investigation indicates a violation of these regulations, the agency will attempt to obtain voluntary compliance. If the agency cannot obtain voluntary compliance, it will begin enforcement as described in § 143.36.
§ 143.35 Prohibition against intimidation or retaliation.
A recipient may not engage in acts of intimidation or retaliation against any person who:
(a) Attempts to assert a right protected by these regulations; or
(b) Cooperates in any mediation, investigation, hearing, or other part of the agency’s investigation, conciliation, and enforcement process.
§ 143.36 Compliance procedure.
(a) An agency may enforce the Act and these regulations through:
(1) Termination of a recipient’s Federal financial assistance from the agency under the program or activity involved where the recipient has violated the Act and these regulations. The determination of the recipient’s violation may be made only after a recipient has had an opportunity for a hearing on the record before an administrative law judge. Therefore, cases which are settled in mediation or prior to a hearing, will not involve termination of a recipient’s Federal financial assistance from the agency.
(2) Any other means authorized by law including but not limited to:
(i) Referral to the Department of Justice for proceedings to enforce any rights of the United States or obligations by the Act and these regulations.
(ii) Use of any requirement of or referral to any Federal, state, or local government agency which will have the effect of correcting a violation of the Act or these regulations.
(b) The agency will limit any termination under § 143.36(a)(1) to the particular recipient and particular program or activity the agency finds in violation of these regulations. The agency will not base any part of a termination on a finding with respect to any program or activity of the recipient which does not receive Federal financial assistance from the agency.
(c) The agency will take no action under paragraph (a) of this section until:
(1) The agency head has advised the recipient of its failure to comply with these regulations and has determined that voluntary compliance cannot be obtained.
(2) Thirty days have lapsed after the agency head has sent a written report of the circumstances and grounds of the action to the committees of the Congress having legislative jurisdiction over the Federal program or activity involved. The agency head shall file a report whenever any action is taken under paragraph (a) of this section.
(d) The agency head also may defer granting new Federal financial assistance from the agency to a recipient when a hearing under § 143.36(a)(1) is initiated.
(1) New Federal financial assistance from the agency includes all assistance for which the agency requires an application or approval, including renewal or continuation of existing activities, or authorization of the new activities, during the deferral period. New Federal financial assistance from the agency does not include increases in funding as a result of changed computation of formula awards or assistance approved prior to the beginning of a hearing under § 143.36(a)(1).
(2) The agency will not begin a deferral until the recipient has received a notice of opportunity for a hearing under § 143.36(a)(1). The agency will not continue a deferral for more than 60 days unless a hearing has begun within that time or the time for beginning the hearing has been extended by mutual consent of the recipient and the agency head. The agency will not continue a deferral for more than 30 days after the close of a hearing unless the hearing results in a finding against the recipient.
§ 143.37 Hearings, decisions, post-termination proceedings.
Certain procedural provisions applicable to Title VI of the Civil Rights Act of 1964 apply to enforcement of this part. They are 22 CFR 141.8 through 141.10.
§ 143.38 Remedial action by recipient.
Where the agency head finds a recipient has discriminated on the basis of age, the recipient shall take any remedial action that the agency head may require to overcome the effects of the discrimination. If another recipient exercises control over the recipient that has discriminated, the agency head may require both recipients to take remedial action.
§ 143.39 Alternate funds disbursal procedure.
(a) When an agency withholds funds from a recipient under these regulations, the agency head may disburse the withheld funds directly to an alternate recipient, any public or non-profit private organization or agency, or State or political subdivision of the State.
(b) The agency head will require any alternate recipient to demonstrate:
(1) The ability to comply with these regulations; and
(2) The ability to achieve the goals of the Federal statute authorizing the program or activity.
Appendix A to Part 143 – List of Affected Federal Financial Assistance
Resettlement of Refugees in the United States Under the Migration and Refugee Assistant Act of 1962, as amended (22 U.S.C. 2601 et seq.).
Diplomat in Residence Program of the Foreign Service Institute Under Title VII of the Foreign Service Act of 1946, as amended (22 U.S.C. 1041 et seq.).
Assignments under section 576 of the Foreign Service Act of 1946, as amended (22 U.S.C. 966)
Appendix B to Part 143 – List of Affected Federal Financial Assistance
Educational and Cultural Exchanges under the Mutual Educational and Cultural Exchange Act of 1961, as amended (22 U.S.C. 1431-1479).
Appendix C to Part 143 – List of Affected Programs
1. Grants to research and educational institutions in the United States to strengthen their capacity to develop and carry out programs concerned with the economic and social development of developing countries (Section 122(d), Foreign Assistance Act of 1961, as amended, 22 U.S.C. 2151(d)).
2. Grants to land grant and other qualified agricultural universities and colleges in the United States to develop their capabilities to assist developing countries in agricultural teaching, research and extension services (Section 297, Foreign Assistance Act of 1961, as amended, 22 U.S.C. 2220(b)).
3. Grants to private and voluntary agencies, non-profit organizations, educational institutions, and other qualified organizations for programs in the United States to promote the economic and social development of developing countries (Sections 103-106, Foreign Assistance Act of 1961, as amended, 22 U.S.C. 2151a-2151d).
PART 144 – ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF HANDICAP IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE UNITED STATES DEPARTMENT OF STATE
§ 144.101 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.
§ 144.102 Application.
This part applies to all programs or activities conducted by the agency.
§ 144.103 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 § 144.140.
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.
§§ 144.104-144.109 [Reserved]
§ 144.110 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.
§ 144.111 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.
§§ 144.112-144.129 [Reserved]
§ 144.130 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 activities 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.
§§ 144.131-144.139 [Reserved]
§ 144.140 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.
§§ 144.141-144.148 [Reserved]
§ 144.149 Program accessibility: Discrimination prohibited.
Except as otherwise provided in § 144.150, 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.
§ 144.150 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 § 144.150(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 § 144.150(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 § 144.150(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.
§ 144.151 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.
§§ 144.152-144.159 [Reserved]
§ 144.160 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 § 144.160 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.
§§ 144.161-144.169 [Reserved]
§ 144.170 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 Deputy Assistant Secretary for Equal Employment Opportunity and Civil Rights shall be responsible for coordinating implementation of this section. Complaints may be sent to Deputy Assistant Secretary for Equal Employment Opportunity and Civil Rights, Department of State, 2201 C Street, NW., Room 3214, Washington, DC 20520.
(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 § 144.170(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.
§§ 144.171-144.999 [Reserved]
PART 146 – NONDISCRIMINATION ON THE BASIS OF SEX IN EDUCATION PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
Subpart A – Introduction
§ 146.100 Purpose and effective date.
The purpose of these Title IX regulations is to effectuate Title IX of the Education Amendments of 1972, as amended (except sections 904 and 906 of those Amendments) (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688), which is designed to eliminate (with certain exceptions) discrimination on the basis of sex in any education program or activity receiving Federal financial assistance, whether or not such program or activity is offered or sponsored by an educational institution as defined in these Title IX regulations. The effective date of these Title IX regulations shall be September 29, 2000.
§ 146.105 Definitions.
As used in these Title IX regulations, the term:
Administratively separate unit means a school, department, or college of an educational institution (other than a local educational agency) admission to which is independent of admission to any other component of such institution.
Admission means selection for part-time, full-time, special, associate, transfer, exchange, or any other enrollment, membership, or matriculation in or at an education program or activity operated by a recipient.
Applicant means one who submits an application, request, or plan required to be approved by an official of the Federal agency that awards Federal financial assistance, or by a recipient, as a condition to becoming a recipient.
Designated agency official means Deputy Assistant Secretary for the Office of Equal Employment Opportunity and Civil Rights’.
Educational institution means a local educational agency (LEA) as defined by 20 U.S.C. 8801(18), a preschool, a private elementary or secondary school, or an applicant or recipient that is an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education, as defined in this section.
Federal financial assistance means any of the following, when authorized or extended under a law administered by the Federal agency that awards such assistance:
(1) A grant or loan of Federal financial assistance, including funds made available for:
(i) The acquisition, construction, renovation, restoration, or repair of a building or facility or any portion thereof; and
(ii) Scholarships, loans, grants, wages, or other funds extended to any entity for payment to or on behalf of students admitted to that entity, or extended directly to such students for payment to that entity.
(2) A grant of Federal real or personal property or any interest therein, including surplus property, and the proceeds of the sale or transfer of such property, if the Federal share of the fair market value of the property is not, upon such sale or transfer, properly accounted for to the Federal Government.
(3) Provision of the services of Federal personnel.
(4) Sale or lease of Federal property or any interest therein at nominal consideration, or at consideration reduced for the purpose of assisting the recipient or in recognition of public interest to be served thereby, or permission to use Federal property or any interest therein without consideration.
(5) Any other contract, agreement, or arrangement that has as one of its purposes the provision of assistance to any education program or activity, except a contract of insurance or guaranty.
Institution of graduate higher education means an institution that:
(1) Offers academic study beyond the bachelor of arts or bachelor of science degree, whether or not leading to a certificate of any higher degree in the liberal arts and sciences;
(2) Awards any degree in a professional field beyond the first professional degree (regardless of whether the first professional degree in such field is awarded by an institution of undergraduate higher education or professional education); or
(3) Awards no degree and offers no further academic study, but operates ordinarily for the purpose of facilitating research by persons who have received the highest graduate degree in any field of study.
Institution of professional education means an institution (except any institution of undergraduate higher education) that offers a program of academic study that leads to a first professional degree in a field for which there is a national specialized accrediting agency recognized by the Secretary of Education.
Institution of undergraduate higher education means:
(1) An institution offering at least two but less than four years of college-level study beyond the high school level, leading to a diploma or an associate degree, or wholly or principally creditable toward a baccalaureate degree; or
(2) An institution offering academic study leading to a baccalaureate degree; or
(3) An agency or body that certifies credentials or offers degrees, but that may or may not offer academic study.
Institution of vocational education means a school or institution (except an institution of professional or graduate or undergraduate higher education) that has as its primary purpose preparation of students to pursue a technical, skilled, or semiskilled occupation or trade, or to pursue study in a technical field, whether or not the school or institution offers certificates, diplomas, or degrees and whether or not it offers full-time study.
Recipient means any State or political subdivision thereof, or any instrumentality of a State or political subdivision thereof, any public or private agency, institution, or organization, or other entity, or any person, to whom Federal financial assistance is extended directly or through another recipient and that operates an education program or activity that receives such assistance, including any subunit, successor, assignee, or transferee thereof.
Student means a person who has gained admission.
Title IX means Title IX of the Education Amendments of 1972, Public Law 92-318, 86 Stat. 235, 373 (codified as amended at 20 U.S.C. 1681-1688) (except sections 904 and 906 thereof), as amended by section 3 of Public Law 93-568, 88 Stat. 1855, by section 412 of the Education Amendments of 1976, Public Law 94-482, 90 Stat. 2234, and by Section 3 of Public Law 100-259, 102 Stat. 28, 28-29 (20 U.S.C. 1681, 1682, 1683, 1685, 1686, 1687, 1688).
Title IX regulations means the provisions set forth at §§ 146.100 through 146.605.
Transition plan means a plan subject to the approval of the Secretary of Education pursuant to section 901(a)(2) of the Education Amendments of 1972, 20 U.S.C. 1681(a)(2), under which an educational institution operates in making the transition from being an educational institution that admits only students of one sex to being one that admits students of both sexes without discrimination.
§ 146.110 Remedial and affirmative action and self-evaluation.
(a) Remedial action. If the designated agency official finds that a recipient has discriminated against persons on the basis of sex in an education program or activity, such recipient shall take such remedial action as the designated agency official deems necessary to overcome the effects of such discrimination.
(b) Affirmative action. In the absence of a finding of discrimination on the basis of sex in an education program or activity, a recipient may take affirmative action consistent with law to overcome the effects of conditions that resulted in limited participation therein by persons of a particular sex. Nothing in these Title IX regulations shall be interpreted to alter any affirmative action obligations that a recipient may have under Executive Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive Order 12086, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264.
(c) Self-evaluation. Each recipient education institution shall, within one year of September 29, 2000:
(1) Evaluate, in terms of the requirements of these Title IX regulations, its current policies and practices and the effects thereof concerning admission of students, treatment of students, and employment of both academic and non-academic personnel working in connection with the recipient’s education program or activity;
(2) Modify any of these policies and practices that do not or may not meet the requirements of these Title IX regulations; and
(3) Take appropriate remedial steps to eliminate the effects of any discrimination that resulted or may have resulted from adherence to these policies and practices.
(d) Availability of self-evaluation and related materials. Recipients shall maintain on file for at least three years following completion of the evaluation required under paragraph (c) of this section, and shall provide to the designated agency official upon request, a description of any modifications made pursuant to paragraph (c)(2) of this section and of any remedial steps taken pursuant to paragraph (c)(3) of this section.
§ 146.115 Assurance required.
(a) General. Either at the application stage or the award stage, Federal agencies must ensure that applications for Federal financial assistance or awards of Federal financial assistance contain, be accompanied by, or be covered by a specifically identified assurance from the applicant or recipient, satisfactory to the designated agency official, that each education program or activity operated by the applicant or recipient and to which these Title IX regulations apply will be operated in compliance with these Title IX regulations. An assurance of compliance with these Title IX regulations shall not be satisfactory to the designated agency official if the applicant or recipient to whom such assurance applies fails to commit itself to take whatever remedial action is necessary in accordance with § 146.110(a) to eliminate existing discrimination on the basis of sex or to eliminate the effects of past discrimination whether occurring prior to or subsequent to the submission to the designated agency official of such assurance.
(b) Duration of obligation. (1) In the case of Federal financial assistance extended to provide real property or structures thereon, such assurance shall obligate the recipient or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used to provide an education program or activity.
(2) In the case of Federal financial assistance extended to provide personal property, such assurance shall obligate the recipient for the period during which it retains ownership or possession of the property.
(3) In all other cases such assurance shall obligate the recipient for the period during which Federal financial assistance is extended.
(c) Form. (1) The assurances required by paragraph (a) of this section, which may be included as part of a document that addresses other assurances or obligations, shall include that the applicant or recipient will comply with all applicable Federal statutes relating to nondiscrimination. These include but are not limited to: Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681-1683, 1685-1688).
(2) The designated agency official will specify the extent to which such assurances will be required of the applicant’s or recipient’s subgrantees, contractors, subcontractors, transferees, or successors in interest.
§ 146.120 Transfers of property.
If a recipient sells or otherwise transfers property financed in whole or in part with Federal financial assistance to a transferee that operates any education program or activity, and the Federal share of the fair market value of the property is not upon such sale or transfer properly accounted for to the Federal Government, both the transferor and the transferee shall be deemed to be recipients, subject to the provisions of §§ 146.205 through 146.235(a).
§ 146.125 Effect of other requirements.
(a) Effect of other Federal provisions. The obligations imposed by these Title IX regulations are independent of, and do not alter, obligations not to discriminate on the basis of sex imposed by Executive Order 11246, 3 CFR, 1964-1965 Comp., p. 339; as amended by Executive Order 11375, 3 CFR, 1966-1970 Comp., p. 684; as amended by Executive Order 11478, 3 CFR, 1966-1970 Comp., p. 803; as amended by Executive Order 12087, 3 CFR, 1978 Comp., p. 230; as amended by Executive Order 12107, 3 CFR, 1978 Comp., p. 264; sections 704 and 855 of the Public Health Service Act (42 U.S.C. 295m, 298b-2); Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); the Equal Pay Act of 1963 (29 U.S.C. 206); and any other Act of Congress or Federal regulation.
(b) Effect of State or local law or other requirements. The obligation to comply with these Title IX regulations is not obviated or alleviated by any State or local law or other requirement that would render any applicant or student ineligible, or limit the eligibility of any applicant or student, on the basis of sex, to practice any occupation or profession.
(c) Effect of rules or regulations of private organizations. The obligation to comply with these Title IX regulations is not obviated or alleviated by any rule or regulation of any organization, club, athletic or other league, or association that would render any applicant or student ineligible to participate or limit the eligibility or participation of any applicant or student, on the basis of sex, in any education program or activity operated by a recipient and that receives Federal financial assistance.
§ 146.130 Effect of employment opportunities.
The obligation to comply with these Title IX regulations is not obviated or alleviated because employment opportunities in any occupation or profession are or may be more limited for members of one sex than for members of the other sex.
§ 146.135 Designation of responsible employee and adoption of grievance procedures.
(a) Designation of responsible employee. Each recipient shall designate at least one employee to coordinate its efforts to comply with and carry out its responsibilities under these Title IX regulations, including any investigation of any complaint communicated to such recipient alleging its noncompliance with these Title IX regulations or alleging any actions that would be prohibited by these Title IX regulations. The recipient shall notify all its students and employees of the name, office address, and telephone number of the employee or employees appointed pursuant to this paragraph.
(b) Complaint procedure of recipient. A recipient shall adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee complaints alleging any action that would be prohibited by these Title IX regulations.
§ 146.140 Dissemination of policy.
(a) Notification of policy. (1) Each recipient shall implement specific and continuing steps to notify applicants for admission and employment, students and parents of elementary and secondary school students, employees, sources of referral of applicants for admission and employment, and all unions or professional organizations holding collective bargaining or professional agreements with the recipient, that it does not discriminate on the basis of sex in the educational programs or activities that it operates, and that it is required by Title IX and these Title IX regulations not to discriminate in such a manner. Such notification shall contain such information, and be made in such manner, as the designated agency official finds necessary to apprise such persons of the protections against discrimination assured them by Title IX and these Title IX regulations, but shall state at least that the requirement not to discriminate in education programs or activities extends to employment therein, and to admission thereto unless §§ 146.300 through 146.310 do not apply to the recipient, and that inquiries concerning the application of Title IX and these Title IX regulations to such recipient may be referred to the employee designated pursuant to § 146.135, or to the designated agency official.
(2) Each recipient shall make the initial notification required by paragraph (a)(1) of this section within 90 days of September 29, 2000 or of the date these Title IX regulations first apply to such recipient, whichever comes later, which notification shall include publication in:
(i) Newspapers and magazines operated by such recipient or by student, alumnae, or alumni groups for or in connection with such recipient; and
(ii) Memoranda or other written communications distributed to every student and employee of such recipient.
(b) Publications. (1) Each recipient shall prominently include a statement of the policy described in paragraph (a) of this section in each announcement, bulletin, catalog, or application form that it makes available to any person of a type, described in paragraph (a) of this section, or which is otherwise used in connection with the recruitment of students or employees.
(2) A recipient shall not use or distribute a publication of the type described in paragraph (b)(1) of this section that suggests, by text or illustration, that such recipient treats applicants, students, or employees differently on the basis of sex except as such treatment is permitted by these Title IX regulations.
(c) Distribution. Each recipient shall distribute without discrimination on the basis of sex each publication described in paragraph (b)(1) of this section, and shall apprise each of its admission and employment recruitment representatives of the policy of nondiscrimination described in paragraph (a) of this section, and shall require such representatives to adhere to such policy.
Subpart B – Coverage
§ 146.200 Application.
Except as provided in §§ 146.205 through 146.235(a), these Title IX regulations apply to every recipient and to each education program or activity operated by such recipient that receives Federal financial assistance.
§ 146.205 Educational institutions and other entities controlled by religious organizations.
(a) Exemption. These Title IX regulations do not apply to any operation of an educational institution or other entity that is controlled by a religious organization to the extent that application of these Title IX regulations would not be consistent with the religious tenets of such organization.
(b) Exemption claims. An educational institution or other entity that wishes to claim the exemption set forth in paragraph (a) of this section shall do so by submitting in writing to the designated agency official a statement by the highest-ranking official of the institution, identifying the provisions of these Title IX regulations that conflict with a specific tenet of the religious organization.
§ 146.210 Military and merchant marine educational institutions.
These Title IX regulations do not apply to an educational institution whose primary purpose is the training of individuals for a military service of the United States or for the merchant marine.
§ 146.215 Membership practices of certain organizations.
(a) Social fraternities and sororities. These Title IX regulations do not apply to the membership practices of social fraternities and sororities that are exempt from taxation under section 501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), the active membership of which consists primarily of students in attendance at institutions of higher education.
(b) YMCA, YWCA, Girl Scouts, Boy Scouts, and Camp Fire Girls. These Title IX regulations do not apply to the membership practices of the Young Men’s Christian Association (YMCA), the Young Women’s Christian Association (YWCA), the Girl Scouts, the Boy Scouts, and Camp Fire Girls.
(c) Voluntary youth service organizations. These Title IX regulations do not apply to the membership practices of a voluntary youth service organization that is exempt from taxation under section 501(a) of the Internal Revenue Code of 1954, 26 U.S.C. 501(a), and the membership of which has been traditionally limited to members of one sex and principally to persons of less than nineteen years of age.
§ 146.220 Admissions.
(a) Admissions to educational institutions prior to June 24, 1973, are not covered by these Title IX regulations.
(b) Administratively separate units. For the purposes only of this section, §§ 146.225 and 146.230, and §§ 146.300 through 146.310, each administratively separate unit shall be deemed to be an educational institution.
(c) Application of §§ 146.300 through .310. Except as provided in paragraphs (d) and (e) of this section, §§ 146.300 through 146.310 apply to each recipient. A recipient to which §§ 146.300 through 146.310 apply shall not discriminate on the basis of sex in admission or recruitment in violation of §§ 146.300 through 146.310.
(d) Educational institutions. Except as provided in paragraph (e) of this section as to recipients that are educational institutions, §§ 146.300 through 146.310 apply only to institutions of vocational education, professional education, graduate higher education, and public institutions of undergraduate higher education.
(e) Public institutions of undergraduate higher education. §§ 146.300 through 146.310 do not apply to any public institution of undergraduate higher education that traditionally and continually from its establishment has had a policy of admitting students of only one sex.
§ 146.225 Educational institutions eligible to submit transition plans.
(a) Application. This section applies to each educational institution to which §§ 146.300 through 146.310 apply that:
(1) Admitted students of only one sex as regular students as of June 23, 1972; or
(2) Admitted students of only one sex as regular students as of June 23, 1965, but thereafter admitted, as regular students, students of the sex not admitted prior to June 23, 1965.
(b) Provision for transition plans. An educational institution to which this section applies shall not discriminate on the basis of sex in admission or recruitment in violation of §§ 146.300 through 146.310.
§ 146.230 Transition plans.
(a) Submission of plans. An institution to which § 146.225 applies and that is composed of more than one administratively separate unit may submit either a single transition plan applicable to all such units, or a separate transition plan applicable to each such unit.
(b) Content of plans. In order to be approved by the Secretary of Education, a transition plan shall:
(1) State the name, address, and Federal Interagency Committee on Education Code of the educational institution submitting such plan, the administratively separate units to which the plan is applicable, and the name, address, and telephone number of the person to whom questions concerning the plan may be addressed. The person who submits the plan shall be the chief administrator or president of the institution, or another individual legally authorized to bind the institution to all actions set forth in the plan.
(2) State whether the educational institution or administratively separate unit admits students of both sexes as regular students and, if so, when it began to do so.
(3) Identify and describe with respect to the educational institution or administratively separate unit any obstacles to admitting students without discrimination on the basis of sex.
(4) Describe in detail the steps necessary to eliminate as soon as practicable each obstacle so identified and indicate the schedule for taking these steps and the individual directly responsible for their implementation.
(5) Include estimates of the number of students, by sex, expected to apply for, be admitted to, and enter each class during the period covered by the plan.
(c) Nondiscrimination. No policy or practice of a recipient to which § 146.225 applies shall result in treatment of applicants to or students of such recipient in violation of §§ 146.300 through 146.310 unless such treatment is necessitated by an obstacle identified in paragraph (b)(3) of this section and a schedule for eliminating that obstacle has been provided as required by paragraph (b)(4) of this section.
(d) Effects of past exclusion. To overcome the effects of past exclusion of students on the basis of sex, each educational institution to which § 146.225 applies shall include in its transition plan, and shall implement, specific steps designed to encourage individuals of the previously excluded sex to apply for admission to such institution. Such steps shall include instituting recruitment programs that emphasize the institution’s commitment to enrolling students of the sex previously excluded.
§ 146.235 Statutory amendments.
(a) This section, which applies to all provisions of these Title IX regulations, addresses statutory amendments to Title IX.
(b) These Title IX regulations shall not apply to or preclude:
(1) Any program or activity of the American Legion undertaken in connection with the organization or operation of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference;
(2) Any program or activity of a secondary school or educational institution specifically for:
(i) The promotion of any Boys State conference, Boys Nation conference, Girls State conference, or Girls Nation conference; or
(ii) The selection of students to attend any such conference;
(3) Father-son or mother-daughter activities at an educational institution or in an education program or activity, but if such activities are provided for students of one sex, opportunities for reasonably comparable activities shall be provided to students of the other sex;
(4) Any scholarship or other financial assistance awarded by an institution of higher education to an individual because such individual has received such award in a single-sex pageant based upon a combination of factors related to the individual’s personal appearance, poise, and talent. The pageant, however, must comply with other nondiscrimination provisions of Federal law.
(c) Program or activity or program means:
(1) All of the operations of any entity described in paragraphs (c)(1)(i) through (iv) of this section, any part of which is extended Federal financial assistance:
(i)(A) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(B) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(ii)(A) A college, university, or other postsecondary institution, or a public system of higher education; or
(B) A local educational agency (as defined in section 8801 of title 20), system of vocational education, or other school system;
(iii)(A) An entire corporation, partnership, or other private organization, or an entire sole proprietorship –
(1) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(2) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(B) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(iv) Any other entity that is established by two or more of the entities described in paragraphs (c)(1)(i), (ii), or (iii) of this section.
(2)(i) Program or activity does not include any operation of an entity that is controlled by a religious organization if the application of 20 U.S.C. 1681 to such operation would not be consistent with the religious tenets of such organization.
(ii) For example, all of the operations of a college, university, or other postsecondary institution, including but not limited to traditional educational operations, faculty and student housing, campus shuttle bus service, campus restaurants, the bookstore, and other commercial activities are part of a “program or activity” subject to these Title IX regulations if the college, university, or other institution receives Federal financial assistance.
(d)(1) Nothing in these Title IX regulations shall be construed to require or prohibit any person, or public or private entity, to provide or pay for any benefit or service, including the use of facilities, related to an abortion. Medical procedures, benefits, services, and the use of facilities, necessary to save the life of a pregnant woman or to address complications related to an abortion are not subject to this section.
(2) Nothing in this section shall be construed to permit a penalty to be imposed on any person or individual because such person or individual is seeking or has received any benefit or service related to a legal abortion. Accordingly, subject to paragraph (d)(1) of this section, no person shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, employment, or other educational program or activity operated by a recipient that receives Federal financial assistance because such individual has sought or received, or is seeking, a legal abortion, or any benefit or service related to a legal abortion.
Subpart C – Discrimination on the Basis of Sex in Admission and Recruitment Prohibited
§ 146.300 Admission.
(a) General. No person shall, on the basis of sex, be denied admission, or be subjected to discrimination in admission, by any recipient to which §§ 146.300 through §§ 146.310 apply, except as provided in §§ 146.225 and §§ 146.230.
(b) Specific prohibitions. (1) In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which §§ 146.300 through 146.310 apply shall not:
(i) Give preference to one person over another on the basis of sex, by ranking applicants separately on such basis, or otherwise;
(ii) Apply numerical limitations upon the number or proportion of persons of either sex who may be admitted; or
(iii) Otherwise treat one individual differently from another on the basis of sex.
(2) A recipient shall not administer or operate any test or other criterion for admission that has a disproportionately adverse effect on persons on the basis of sex unless the use of such test or criterion is shown to predict validly success in the education program or activity in question and alternative tests or criteria that do not have such a disproportionately adverse effect are shown to be unavailable.
(c) Prohibitions relating to marital or parental status. In determining whether a person satisfies any policy or criterion for admission, or in making any offer of admission, a recipient to which §§ 146.300 through 146.310 apply:
(1) Shall not apply any rule concerning the actual or potential parental, family, or marital status of a student or applicant that treats persons differently on the basis of sex;
(2) Shall not discriminate against or exclude any person on the basis of pregnancy, childbirth, termination of pregnancy, or recovery therefrom, or establish or follow any rule or practice that so discriminates or excludes;
(3) Subject to § 146.235(d), shall treat disabilities related to pregnancy, childbirth, termination of pregnancy, or recovery therefrom in the same manner and under the same policies as any other temporary disability or physical condition; and
(4) Shall not make pre-admission inquiry as to the marital status of an applicant for admission, including whether such applicant is “Miss” or “Mrs.” A recipient may make pre-admission inquiry as to the sex of an applicant for admission, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by these Title IX regulations.
§ 146.305 Preference in admission.
A recipient to which §§ 146.300 through 146.310 apply shall not give preference to applicants for admission, on the basis of attendance at any educational institution or other school or entity that admits as students only or predominantly members of one sex, if the giving of such preference has the effect of discriminating on the basis of sex in violation of §§ 146.300 through 146.310.
§ 146.310 Recruitment.
(a) Nondiscriminatory recruitment. A recipient to which §§ 146.300 through 146.310 apply shall not discriminate on the basis of sex in the recruitment and admission of students. A recipient may be required to undertake additional recruitment efforts for one sex as remedial action pursuant to § 146.110(a), and may choose to undertake such efforts as affirmative action pursuant to § 146.110(b).
(b) Recruitment at certain institutions. A recipient to which §§ 146.300 through 146.310 apply shall not recruit primarily or exclusively at educational institutions, schools, or entities that admit as students only or predominantly members of one sex, if such actions have the effect of discriminating on the basis of sex in violation of §§ 146.300 through 146.310.
Subpart D – Discrimination on the Basis of Sex in Education Programs or Activities Prohibited
§ 146.400 Education programs or activities.
(a) General. Except as provided elsewhere in these Title IX regulations, no person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any academic, extracurricular, research, occupational training, or other education program or activity operated by a recipient that receives Federal financial assistance. Sections 146.400 through 146.455 do not apply to actions of a recipient in connection with admission of its students to an education program or activity of a recipient to which §§ 146.300 through 146.310 do not apply, or an entity, not a recipient, to which §§ 146.300 through 146.310 would not apply if the entity were a recipient.
(b) Specific prohibitions. Except as provided in §§ 146.400 through 146.455, in providing any aid, benefit, or service to a student, a recipient shall not, on the basis of sex:
(1) Treat one person differently from another in determining whether such person satisfies any requirement or condition for the provision of such aid, benefit, or service;
(2) Provide different aid, benefits, or services or provide aid, benefits, or services in a different manner;
(3) Deny any person any such aid, benefit, or service;
(4) Subject any person to separate or different rules of behavior, sanctions, or other treatment;
(5) Apply any rule concerning the domicile or residence of a student or applicant, including eligibility for in-state fees and tuition;
(6) Aid or perpetuate discrimination against any person by providing significant assistance to any agency, organization, or person that discriminates on the basis of sex in providing any aid, benefit, or service to students or employees;
(7) Otherwise limit any person in the enjoyment of any right, privilege, advantage, or opportunity.
(c) Assistance administered by a recipient educational institution to study at a foreign institution. A recipient educational institution may administer or assist in the administration of scholarships, fellowships, or other awards established by foreign or domestic wills, trusts, or similar legal instruments, or by acts of foreign governments and restricted to members of one sex, that are designed to provide opportunities to study abroad, and that are awarded to students who are already matriculating at or who are graduates of the recipient institution; Provided, that a recipient educational institution that administers or assists in the administration of such scholarships, fellowships, or other awards that are restricted to members of one sex provides, or otherwise makes available, reasonable opportunities for similar studies for members of the other sex. Such opportunities may be derived from either domestic or foreign sources.
(d) Aids, benefits or services not provided by recipient. (1) This paragraph (d) applies to any recipient that requires participation by any applicant, student, or employee in any education program or activity not operated wholly by such recipient, or that facilitates, permits, or considers such participation as part of or equivalent to an education program or activity operated by such recipient, including participation in educational consortia and cooperative employment and student-teaching assignments.
(2) Such recipient:
(i) Shall develop and implement a procedure designed to assure itself that the operator or sponsor of such other education program or activity takes no action affecting any applicant, student, or employee of such recipient that these Title IX regulations would prohibit such recipient from taking; and
(ii) Shall not facilitate, require, permit, or consider such participation if such action occurs.
§ 146.405 Housing.
(a) Generally. A recipient shall not, on the basis of sex, apply different rules or regulations, impose different fees or requirements, or offer different services or benefits related to housing, except as provided in this section (including housing provided only to married students).
(b) Housing provided by recipient. (1) A recipient may provide separate housing on the basis of sex.
(2) Housing provided by a recipient to students of one sex, when compared to that provided to students of the other sex, shall be as a whole:
(i) Proportionate in quantity to the number of students of that sex applying for such housing; and
(ii) Comparable in quality and cost to the student.
(c) Other housing. (1) A recipient shall not, on the basis of sex, administer different policies or practices concerning occupancy by its students of housing other than that provided by such recipient.
(2)(i) A recipient which, through solicitation, listing, approval of housing, or otherwise, assists any agency, organization, or person in making housing available to any of its students, shall take such reasonable action as may be necessary to assure itself that such housing as is provided to students of one sex, when compared to that provided to students of the other sex, is as a whole:
(A) Proportionate in quantity; and
(B) Comparable in quality and cost to the student.
(ii) A recipient may render such assistance to any agency, organization, or person that provides all or part of such housing to students of only one sex.
§ 146.410 Comparable facilities.
A recipient may provide separate toilet, locker room, and shower facilities on the basis of sex, but such facilities provided for students of one sex shall be comparable to such facilities provided for students of the other sex.
§ 146.415 Access to course offerings.
(a) A recipient shall not provide any course or otherwise carry out any of its education program or activity separately on the basis of sex, or require or refuse participation therein by any of its students on such basis, including health, physical education, industrial, business, vocational, technical, home economics, music, and adult education courses.
(b)(1) With respect to classes and activities in physical education at the elementary school level, the recipient shall comply fully with this section as expeditiously as possible but in no event later than one year from September 29, 2000. With respect to physical education classes and activities at the secondary and post-secondary levels, the recipient shall comply fully with this section as expeditiously as possible but in no event later than three years from September 29, 2000.
(2) This section does not prohibit grouping of students in physical education classes and activities by ability as assessed by objective standards of individual performance developed and applied without regard to sex.
(3) This section does not prohibit separation of students by sex within physical education classes or activities during participation in wrestling, boxing, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact.
(4) Where use of a single standard of measuring skill or progress in a physical education class has an adverse effect on members of one sex, the recipient shall use appropriate standards that do not have such effect.
(5) Portions of classes in elementary and secondary schools, or portions of education programs or activities, that deal exclusively with human sexuality may be conducted in separate sessions for boys and girls.
(6) Recipients may make requirements based on vocal range or quality that may result in a chorus or choruses of one or predominantly one sex.
§ 146.420 Access to schools operated by LEAs.
A recipient that is a local educational agency shall not, on the basis of sex, exclude any person from admission to:
(a) Any institution of vocational education operated by such recipient; or
(b) Any other school or educational unit operated by such recipient, unless such recipient otherwise makes available to such person, pursuant to the same policies and criteria of admission, courses, services, and facilities comparable to each course, service, and facility offered in or through such schools.
§ 146.425 Counseling and use of appraisal and counseling materials.
(a) Counseling. A recipient shall not discriminate against any person on the basis of sex in the counseling or guidance of students or applicants for admission.
(b) Use of appraisal and counseling materials. A recipient that uses testing or other materials for appraising or counseling students shall not use different materials for students on the basis of their sex or use materials that permit or require different treatment of students on such basis unless such different materials cover the same occupations and interest areas and the use of such different materials is shown to be essential to eliminate sex bias. Recipients shall develop and use internal procedures for ensuring that such materials do not discriminate on the basis of sex. Where the use of a counseling test or other instrument results in a substantially disproportionate number of members of one sex in any particular course of study or classification, the recipient shall take such action as is necessary to assure itself that such disproportion is not the result of discrimination in the instrument or its application.
(c) Disproportion in classes. Where a recipient finds that a particular class contains a substantially disproportionate number of individuals of one sex, the recipient shall take such action as is necessary to assure itself that such disproportion is not the result of discrimination on the basis of sex in counseling or appraisal materials or by counselors.
§ 146.430 Financial assistance.
(a) General. Except as provided in paragraphs (b) and (c) of this section, in providing financial assistance to any of its students, a recipient shall not:
(1) On the basis of sex, provide different amounts or types of such assistance, limit eligibility for such assistance that is of any particular type or source, apply different criteria, or otherwise discriminate;
(2) Through solicitation, listing, approval, provision of facilities, or other services, assist any foundation, trust, agency, organization, or person that provides assistance to any of such recipient’s students in a manner that discriminates on the basis of sex; or
(3) Apply any rule or assist in application of any rule concerning eligibility for such assistance that treats persons of one sex differently from persons of the other sex with regard to marital or parental status.
(b) Financial aid established by certain legal instruments. (1) A recipient may administer or assist in the administration of scholarships, fellowships, or other forms of financial assistance established pursuant to domestic or foreign wills, trusts, bequests, or similar legal instruments or by acts of a foreign government that require that awards be made to members of a particular sex specified therein; Provided, that the overall effect of the award of such sex-restricted scholarships, fellowships, and other forms of financial assistance does not discriminate on the basis of sex.
(2) To ensure nondiscriminatory awards of assistance as required in paragraph (b)(1) of this section, recipients shall develop and use procedures under which:
(i) Students are selected for award of financial assistance on the basis of nondiscriminatory criteria and not on the basis of availability of funds restricted to members of a particular sex;
(ii) An appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to each student selected under paragraph (b)(2)(i) of this section; and
(iii) No student is denied the award for which he or she was selected under paragraph (b)(2)(i) of this section because of the absence of a scholarship, fellowship, or other form of financial assistance designated for a member of that student’s sex.
(c) Athletic scholarships. (1) To the extent that a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.
(2) A recipient may provide separate athletic scholarships or grants-in-aid for members of each sex as part of separate athletic teams for members of each sex to the extent consistent with this paragraph (c) and § 146.450.
§ 146.435 Employment assistance to students.
(a) Assistance by recipient in making available outside employment. A recipient that assists any agency, organization, or person in making employment available to any of its students:
(1) Shall assure itself that such employment is made available without discrimination on the basis of sex; and
(2) Shall not render such services to any agency, organization, or person that discriminates on the basis of sex in its employment practices.
(b) Employment of students by recipients. A recipient that employs any of its students shall not do so in a manner that violates §§ 146.500 through 146.550.
§ 146.440 Health and insurance benefits and services.
Subject to § 146.235(d), in providing a medical, hospital, accident, or life insurance benefit, service, policy, or plan to any of its students, a recipient shall not discriminate on the basis of sex, or provide such benefit, service, policy, or plan in a manner that would violate §§ 146.500 through 146.550 if it were provided to employees of the recipient. This section shall not prohibit a recipient from providing any benefit or service that may be used by a different proportion of students of one sex than of the other, including family planning services. However, any recipient that provides full coverage health service shall provide gynecological care.
§ 146.445 Marital or parental status.
(a) Status generally. A recipient shall not apply any rule concerning a student’s actual or potential parental, family, or marital status that treats students differently on the basis of sex.
(b) Pregnancy and related conditions. (1) A recipient shall not discriminate against any student, or exclude any student from its education program or activity, including any class or extracurricular activity, on the basis of such student’s pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom, unless the student requests voluntarily to participate in a separate portion of the program or activity of the recipient.
(2) A recipient may require such a student to obtain the certification of a physician that the student is physically and emotionally able to continue participation as long as such a certification is required of all students for other physical or emotional conditions requiring the attention of a physician.
(3) A recipient that operates a portion of its education program or activity separately for pregnant students, admittance to which is completely voluntary on the part of the student as provided in paragraph (b)(1) of this section, shall ensure that the separate portion is comparable to that offered to non-pregnant students.
(4) Subject to § 146.235(d), a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy and recovery therefrom in the same manner and under the same policies as any other temporary disability with respect to any medical or hospital benefit, service, plan, or policy that such recipient administers, operates, offers, or participates in with respect to students admitted to the recipient’s educational program or activity.
(5) In the case of a recipient that does not maintain a leave policy for its students, or in the case of a student who does not otherwise qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom as a justification for a leave of absence for as long a period of time as is deemed medically necessary by the student’s physician, at the conclusion of which the student shall be reinstated to the status that she held when the leave began.
§ 146.450 Athletics.
(a) General. No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, be treated differently from another person, or otherwise be discriminated against in any interscholastic, intercollegiate, club, or intramural athletics offered by a recipient, and no recipient shall provide any such athletics separately on such basis.
(b) Separate teams. Notwithstanding the requirements of paragraph (a) of this section, a recipient may operate or sponsor separate teams for members of each sex where selection for such teams is based upon competitive skill or the activity involved is a contact sport. However, where a recipient operates or sponsors a team in a particular sport for members of one sex but operates or sponsors no such team for members of the other sex, and athletic opportunities for members of that sex have previously been limited, members of the excluded sex must be allowed to try out for the team offered unless the sport involved is a contact sport. For the purposes of these Title IX regulations, contact sports include boxing, wrestling, rugby, ice hockey, football, basketball, and other sports the purpose or major activity of which involves bodily contact.
(c) Equal opportunity. (1) A recipient that operates or sponsors interscholastic, intercollegiate, club, or intramural athletics shall provide equal athletic opportunity for members of both sexes. In determining whether equal opportunities are available, the designated agency official will consider, among other factors:
(i) Whether the selection of sports and levels of competition effectively accommodate the interests and abilities of members of both sexes;
(ii) The provision of equipment and supplies;
(iii) Scheduling of games and practice time;
(iv) Travel and per diem allowance;
(v) Opportunity to receive coaching and academic tutoring;
(vi) Assignment and compensation of coaches and tutors;
(vii) Provision of locker rooms, practice, and competitive facilities;
(viii) Provision of medical and training facilities and services;
(ix) Provision of housing and dining facilities and services;
(x) Publicity.
(2) For purposes of paragraph (c)(1) of this section, unequal aggregate expenditures for members of each sex or unequal expenditures for male and female teams if a recipient operates or sponsors separate teams will not constitute noncompliance with this section, but the designated agency official may consider the failure to provide necessary funds for teams for one sex in assessing equality of opportunity for members of each sex.
(d) Adjustment period. A recipient that operates or sponsors interscholastic, intercollegiate, club, or intramural athletics at the elementary school level shall comply fully with this section as expeditiously as possible but in no event later than one year from September 29, 2000. A recipient that operates or sponsors interscholastic, intercollegiate, club, or intramural athletics at the secondary or postsecondary school level shall comply fully with this section as expeditiously as possible but in no event later than three years from September 29, 2000.
§ 146.455 Textbooks and curricular material.
Nothing in these Title IX regulations shall be interpreted as requiring or prohibiting or abridging in any way the use of particular textbooks or curricular materials.
Subpart E – Discrimination on the Basis of Sex in Employment in Education Programs or Activities Prohibited
§ 146.500 Employment.
(a) General. (1) No person shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination in employment, or recruitment, consideration, or selection therefor, whether full-time or part-time, under any education program or activity operated by a recipient that receives Federal financial assistance.
(2) A recipient shall make all employment decisions in any education program or activity operated by such recipient in a nondiscriminatory manner and shall not limit, segregate, or classify applicants or employees in any way that could adversely affect any applicant’s or employee’s employment opportunities or status because of sex.
(3) A recipient shall not enter into any contractual or other relationship which directly or indirectly has the effect of subjecting employees or students to discrimination prohibited by §§ 146.500 through 146.550, including relationships with employment and referral agencies, with labor unions, and with organizations providing or administering fringe benefits to employees of the recipient.
(4) A recipient shall not grant preferences to applicants for employment on the basis of attendance at any educational institution or entity that admits as students only or predominantly members of one sex, if the giving of such preferences has the effect of discriminating on the basis of sex in violation of these Title IX regulations.
(b) Application. The provisions of §§ 146.500 through 146.550 apply to:
(1) Recruitment, advertising, and the process of application for employment;
(2) Hiring, upgrading, promotion, consideration for and award of tenure, demotion, transfer, layoff, termination, application of nepotism policies, right of return from layoff, and rehiring;
(3) Rates of pay or any other form of compensation, and changes in compensation;
(4) Job assignments, classifications, and structure, including position descriptions, lines of progression, and seniority lists;
(5) The terms of any collective bargaining agreement;
(6) Granting and return from leaves of absence, leave for pregnancy, childbirth, false pregnancy, termination of pregnancy, leave for persons of either sex to care for children or dependents, or any other leave;
(7) Fringe benefits available by virtue of employment, whether or not administered by the recipient;
(8) Selection and financial support for training, including apprenticeship, professional meetings, conferences, and other related activities, selection for tuition assistance, selection for sabbaticals and leaves of absence to pursue training;
(9) Employer-sponsored activities, including social or recreational programs; and
(10) Any other term, condition, or privilege of employment.
§ 146.505 Employment criteria.
A recipient shall not administer or operate any test or other criterion for any employment opportunity that has a disproportionately adverse effect on persons on the basis of sex unless:
(a) Use of such test or other criterion is shown to predict validly successful performance in the position in question; and
(b) Alternative tests or criteria for such purpose, which do not have such disproportionately adverse effect, are shown to be unavailable.
§ 146.510 Recruitment.
(a) Nondiscriminatory recruitment and hiring. A recipient shall not discriminate on the basis of sex in the recruitment and hiring of employees. Where a recipient has been found to be presently discriminating on the basis of sex in the recruitment or hiring of employees, or has been found to have so discriminated in the past, the recipient shall recruit members of the sex so discriminated against so as to overcome the effects of such past or present discrimination.
(b) Recruitment patterns. A recipient shall not recruit primarily or exclusively at entities that furnish as applicants only or predominantly members of one sex if such actions have the effect of discriminating on the basis of sex in violation of §§ 146.500 through 146.550.
§ 146.515 Compensation.
A recipient shall not make or enforce any policy or practice that, on the basis of sex:
(a) Makes distinctions in rates of pay or other compensation;
(b) Results in the payment of wages to employees of one sex at a rate less than that paid to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and that are performed under similar working conditions.
§ 146.520 Job classification and structure.
A recipient shall not:
(a) Classify a job as being for males or for females;
(b) Maintain or establish separate lines of progression, seniority lists, career ladders, or tenure systems based on sex; or
(c) Maintain or establish separate lines of progression, seniority systems, career ladders, or tenure systems for similar jobs, position descriptions, or job requirements that classify persons on the basis of sex, unless sex is a bona fide occupational qualification for the positions in question as set forth in § 146.550.
§ 146.525 Fringe benefits.
(a) “Fringe benefits” defined. For purposes of these Title IX regulations, fringe benefits means: Any medical, hospital, accident, life insurance, or retirement benefit, service, policy or plan, any profit-sharing or bonus plan, leave, and any other benefit or service of employment not subject to the provision of § 146.515.
(b) Prohibitions. A recipient shall not:
(1) Discriminate on the basis of sex with regard to making fringe benefits available to employees or make fringe benefits available to spouses, families, or dependents of employees differently upon the basis of the employee’s sex;
(2) Administer, operate, offer, or participate in a fringe benefit plan that does not provide for equal periodic benefits for members of each sex and for equal contributions to the plan by such recipient for members of each sex; or
(3) Administer, operate, offer, or participate in a pension or retirement plan that establishes different optional or compulsory retirement ages based on sex or that otherwise discriminates in benefits on the basis of sex.
§ 146.530 Marital or parental status.
(a) General. A recipient shall not apply any policy or take any employment action:
(1) Concerning the potential marital, parental, or family status of an employee or applicant for employment that treats persons differently on the basis of sex; or
(2) Which is based upon whether an employee or applicant for employment is the head of household or principal wage earner in such employee’s or applicant’s family unit.
(b) Pregnancy. A recipient shall not discriminate against or exclude from employment any employee or applicant for employment on the basis of pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.
(c) Pregnancy as a temporary disability. Subject to § 146235(d), a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, recovery therefrom, and any temporary disability resulting therefrom as any other temporary disability for all job-related purposes, including commencement, duration, and extensions of leave, payment of disability income, accrual of seniority and any other benefit or service, and reinstatement, and under any fringe benefit offered to employees by virtue of employment.
(d) Pregnancy leave. In the case of a recipient that does not maintain a leave policy for its employees, or in the case of an employee with insufficient leave or accrued employment time to qualify for leave under such a policy, a recipient shall treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom as a justification for a leave of absence without pay for a reasonable period of time, at the conclusion of which the employee shall be reinstated to the status that she held when the leave began or to a comparable position, without decrease in rate of compensation or loss of promotional opportunities, or any other right or privilege of employment.
§ 146.535 Effect of state or local law or other requirements.
(a) Prohibitory requirements. The obligation to comply with §§ 146.500 through 146.550 is not obviated or alleviated by the existence of any State or local law or other requirement that imposes prohibitions or limits upon employment of members of one sex that are not imposed upon members of the other sex.
(b) Benefits. A recipient that provides any compensation, service, or benefit to members of one sex pursuant to a State or local law or other requirement shall provide the same compensation, service, or benefit to members of the other sex.
§ 146.540 Advertising.
A recipient shall not in any advertising related to employment indicate preference, limitation, specification, or discrimination based on sex unless sex is a bona fide occupational qualification for the particular job in question.
§ 146.545 Pre-employment inquiries.
(a) Marital status. A recipient shall not make pre-employment inquiry as to the marital status of an applicant for employment, including whether such applicant is “Miss” or “Mrs.”
(b) Sex. A recipient may make pre-employment inquiry as to the sex of an applicant for employment, but only if such inquiry is made equally of such applicants of both sexes and if the results of such inquiry are not used in connection with discrimination prohibited by these Title IX regulations.
§ 146.550 Sex as a bona fide occupational qualification.
A recipient may take action otherwise prohibited by §§ 146.500 through 146.550 provided it is shown that sex is a bona fide occupational qualification for that action, such that consideration of sex with regard to such action is essential to successful operation of the employment function concerned. A recipient shall not take action pursuant to this section that is based upon alleged comparative employment characteristics or stereotyped characterizations of one or the other sex, or upon preference based on sex of the recipient, employees, students, or other persons, but nothing contained in this section shall prevent a recipient from considering an employee’s sex in relation to employment in a locker room or toilet facility used only by members of one sex.
Subpart F – Procedures
§ 146.600 Notice of covered programs.
Within 60 days of September 29, 2000, each Federal agency that awards Federal financial assistance shall publish in the
§ 146.605 Enforcement procedures.
The investigative, compliance, and enforcement procedural provisions of Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d) (“Title VI”) are hereby adopted and applied to these Title IX regulations. These procedures may be found at 22 CFR part 141.
PART 147 – INFORMATION AND COMMUNICATION TECHNOLOGY
Subpart A – General Provisions
§ 147.1 Purpose.
The purpose of this part is to implement section 508 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 794d), which requires that when Federal departments and agencies develop, procure, maintain, or use information and communication technology, they shall ensure that the information and communication technology is accessible to individuals with disabilities who are Federal employees, applicants for employment, or members of the public.
§ 147.2 Application.
This part applies to all development, procurement, maintenance, and use of information and communication technology (ICT), as defined in E103.4 of appendix A to 36 CFR part 1194.
§ 147.3 Definitions.
The Department of State adopts the definitions in E103.4 of appendix A to 36 CFR part 1194. In addition, as used in this part:
Department means the United States Department of State and any of its passport agencies or other facilities.
Secretary means the Secretary of State or his or her designee.
Section 508 means section 508 of the Rehabilitation Act of 1973, as amended, codified at 29 U.S.C. 794d.
§ 147.4 Notice.
(a) The Secretary shall ensure that employees, applicants for employment, and the members of the public are provided with adequate notice of the requirements of Section 508, the Revised 508 Standards (36 CFR 1194.1 and appendices A, C and D to 36 CFR part 1194), and this part, as they relate to the programs or activities conducted by the Department.
(b) The Secretary shall ensure that the home page of the Department’s public-facing Web site provides Department policy regarding accessibility of ICT in accordance with Section 508 and 36 CFR part 1194.1, as well as an email address for the public to ask questions or express concerns.
§ 147.5 Discrimination prohibited.
The Department must comply with Revised 508 Standards when it develops, procures, maintains, or uses ICT. The Department must ensure that individuals with disabilities who are Federal employees or members of the public have access to and use of information and data that is comparable to that provided to Federal employees or members of the public without disabilities, unless providing comparable access would impose an undue burden on the Department.
§ 147.6 Information and communication technology requirements.
(a) Development, procurement, maintenance, or use of ICT. When developing, procuring, maintaining, or using ICT, the Department shall ensure, unless an undue burden would be imposed on the Department, that the ICT allows, regardless of the type of medium of the technology, that –
(1) Individuals with disabilities who are Department employees have access to and use of information and data that is comparable to the access to and use of the information and data by Department employees who are not individuals with disabilities; and
(2) Individuals with disabilities who are members of the public seeking information or services from the Department have access to and use of information and data that is comparable to the access to and use of the information and data by such members of the public who are not individuals with disabilities.
(b) In meeting its obligations under paragraph (a) of this section, the Department shall comply with the Revised 508 Standards (36 CFR 1194.1 and appendices A, C and D to 36 CFR part 1194).
(c) Alternative means of access when undue burden is imposed. When development, procurement, maintenance, or use of ICT that meets the standards as provided in 36 CFR part 1194.1 would impose an undue burden, the Department shall provide individuals with disabilities covered by this section with the relevant information and data by an alternative means of access that allows the individual to use the information and data.
(d) Procedures for determining undue burden. The Department procedures for finding that full compliance with 36 CFR part 1194.1 would impose an undue burden can be found at: http://www.state.gov/m/irm/impact/126338.htm.
Subpart B – Complaint Procedures
§ 147.7 Filing a Section 508 complaint.
(a) An individual with a disability who alleges that Department’s ICT does not allow him or her to have access to and use of information and data that is comparable to access and use by individuals without disabilities, or that the alternative means of access provided by the Department does not allow the individual to use the information and data, may file a complaint with the Department’s Office of Civil Rights (S/OCR).
(b) Employees, applicants for employment, or members of the general public are encouraged to contact personnel in the Department office that uses or maintains a system that is believed not to be compliant with Section 508 or 36 CFR part 1194.1 to attempt to have their issues addressed. Nothing in this complaint process is intended to prevent Department personnel from addressing any alleged compliance issues when made aware of such requests directly or indirectly.
(c) A Section 508 complaint must be filed not later than 180 calendar days after the complainant knew, or should have known, of the alleged discrimination, unless the time for filing is extended by the Department. A Section 508 complaint must be submitted in writing by fax, email, mail, or hand delivery to the S/OCR office, using the Form DS-4282, Discrimination Complaint Form, which can be downloaded at: https://eforms.state.gov/Forms/ds4282.PDF.
(d) Once a Section 508 complaint has been received, S/OCR will conduct an investigation into the allegation(s) and render a decision as to whether a Section 508 violation has occurred. Within 180 days of the receipt of a complete complaint under this part, the Secretary 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.
Upon request of the complainant, the decision will be provided in an alternate format, such as an electronic format, braille, or large print.
(e) 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 Department of the notice required by § 147.7(d). The Department may extend this time for good cause.
(f) Timely appeals shall be accepted and processed by the Department.
(g) The Secretary shall notify the complainant of the results of the appeal within 60 days of the receipt of the appeal. If the Secretary determines that additional information is needed from the complainant, the Secretary shall have 60 days from the date of receipt of the additional information to make his or her determination on the appeal.
(h) Individuals who submit a complaint must keep S/OCR updated at all times with current contact information, to include address, phone number, and working email address. If the Department needs additional information and is unable, after reasonable attempts for 30 days, to contact a complainant using his or her contact information, it may consider the complaint abandoned, and may close the complaint without action. A complainant may re-submit a complaint that was closed due to the inability of the Department to contact the complainant.
(i) A Department employee who receives a Section 508 complaint or a communication that raises an issue that might reasonably be considered a Section 508 complaint, should forward such communication to S/OCR.
§ 147.8 Final agency action.
Either a decision by the Secretary on the merits of a complaint, or no notification in writing from the Secretary within 180 days of filing the complaint, will a constitute a final agency action and exhaustion of the complainant’s administrative remedies for purposes of 5 U.S.C. 701, et seq.
§ 147.9 Intimidation and retaliation prohibited.
No person may discharge, intimidate, retaliate, threaten, coerce or otherwise discriminate against any person because such person has filed a complaint, furnished information, assisted or participated in any manner in an investigation, review, hearing or any other activity related to the administration of, or exercise of authority under, or privilege secured by Section 508 and the regulations in this part.
SUBCHAPTER P – DIPLOMATIC PRIVILEGES AND IMMUNITIES
PART 151 – COMPULSORY LIABILITY INSURANCE FOR DIPLOMATIC MISSIONS AND PERSONNEL
§ 151.1 Purpose.
This part establishes regulations required under section 6 of the Diplomatic Relations Act (Pub. L. 95-393; 22 U.S.C. 254e). These regulations require all missions, members of missions and their families, and those officials of the United Nations who are entitled to diplomatic immunity to have and maintain liability insurance against the risks of bodily injury, including death, and property damage, including loss of use, arising from the ownership, maintenance, or use in the United States of any motor vehicle, vessel, or aircraft.
§ 151.2 Definitions.
(a) Act means the Diplomatic Relations Act, Pub. L. 95-393 (22 U.S.C. 254a et seq., 28 U.S.C. 1364).
(b) Persons subject to the Act, as defined in section 2 of the Act, means: (1) The head of a mission and members of the diplomatic staff, administrative and technical staff, and service staff of a mission, as such terms are defined in Article 1 of the Vienna Convention on Diplomatic Relations of April 18, 1961 (TIAS 7502, 23 U.S.T. 3227); (2) members of the family of a member of the diplomatic staff of a mission who form part of his or her household if they are not nationals of the United States, and members of the family of a member of the administrative and technical staff of a mission who form part of his or her household if they are not nationals or permanent residents of the United States; and (3) senior officials of the United Nations as defined in paragraph (d) of this section.
(c) Missions, as defined in section 2 of the Act, means missions within the meaning of the Vienna Convention on Diplomatic Relations and any missions representing foreign governments, individually or collectively, which are extended the same privileges and immunities, pursuant to law, as are enjoyed by missions under the Vienna Convention.
(d) Senior United Nations official means a United Nations official entitled to diplomatic immunity as provided in section 19 of the Convention on Privileges and Immunities of the United Nations of February 13, 1946 (21 UST 1418; 1 UNTS 16).
(e) Insurance means insurance as required by the Act and these regulations.
§ 151.3 Types of insurance coverage required.
(a) Every person subject to the Act and every mission shall have and maintain with respect to any motor vehicle, vessel or aircraft owned by, leased to, or furnished for the regular use of every such person or mission liability insurance in accordance with the form, terms, and conditions provided for in these regulations.
(b) The insurance shall provide coverage against the following risks to third parties arising from the ownership, maintenance, or use in the United States of any motor vehicle, vessel, or aircraft:
(1) Bodily injury, including death;
(2) Property damage, including loss of use; and
(3) Any additional coverage required to be included in liability insurance policies by the jurisdiction where the motor vehicle, vessel or aircraft is principally garaged, berthed, or kept, such as uninsured motorist coverage or first party no-fault coverage.
§ 151.4 Minimum limits for motor vehicle insurance.
The insurance shall provide not less than $100,000 per person and $300,000 per incident for bodily injury liability and $100,000 per incident for property damage or $300,000 combined single limit for all bodily injury liability and property damage liability arising from a single incident, except where the Director of the Office of Foreign Missions grants a special exception.
§ 151.6 Authorized insurer.
The insurance must be issued by an insurer licensed or otherwise authorized by applicable law to do business in the jurisdiction where the motor vehicle, vessel or aircraft is principally garaged, berthed or kept.
§ 151.7 Policy terms consistent with the Act.
(a) The insurance shall be construed in conformity with the Act. In particular, no effect shall be given to any policy terms which are inconsistent or in conflict with those provisions of the Act stating that any suit against the insurer under the policy shall not be subject to any of the following defenses:
(1) That the insured is immune from suit;
(2) That the insured is an indispensable party; or
(3) In the absence of fraud or collusion, that the insured has violated a term of the contract, unless the contract was canceled before the claim arose.
(b) Notwithstanding the provisions of paragraph (a) of this section, the insured is expected to respond to reasonable requests from the insurer for cooperation.
§ 151.8 Evidence of insurance for motor vehicles.
(a) Every mission must periodically, and otherwise upon official request, furnish evidence satisfactory to the Department of State that the required insurance is in effect for the mission, its members and their families. Every senior United Nations official must also periodically furnish evidence satisfactory to the Department of State that the required insurance is in effect.
(b) The Department of State will accept as satisfactory evidence that the required insurance is in effect:
(1) A written statement of self-certification signed by the Chief of Mission, indicating that the mission, its members and their families have and will maintain insurance throughout the period of registration of all vehicles owned or leased or otherwise regularly used, and showing the name of the insurance company or companies and identifying each policy by number and name of insured; and
(2) A written statement of self-certification signed by each senior United Nations official, indicating that he or she has and will maintain insurance throughout the period of registration on all motor vehicles owned or leased or otherwise regularly used, and showing the name of the insurance company or companies and identifying each by number and name of insured.
(c) A certification under paragraph (b) of this section by a Chief of a Mission to the United Nations or by a senior United Nations official shall be delivered to the Counselor for host country affairs of the United States Mission to the United Nations. All other certifications shall be delivered to the Chief of Protocol, Department of State.
§ 151.9 Evidence of insurance required for diplomatic license plates and waiver of fees.
The Department of State will not endorse on behalf of any person subject to the Act or any mission any application for diplomatic motor vehicle license plates or any application for waiver of motor vehicle registration fees without prior receipt of satisfactory evidence from the Chief of Mission or other duly authorized official that the required insurance is in effect.
§ 151.10 Minimum limits of insurance for aircraft and/or vessels.
Insurance in respect of vessels and/or aircraft shall provide limits of liability adequate in light of reasonably foreseeable risks from the ownership, maintenance, or other regular use of vessels and/or aircraft.
§ 151.11 Notification of ownership, maintenance or use of vessel and/or aircraft; evidence of insurance.
(a) Each person subject to the Act and each mission must notify the Department of State in writing of the ownership, maintenance or other regular use of a vessel or aircraft in the United States by such mission or person.
(b) Notices under paragraph (a) of this section shall identify the vessel and/or aircraft with specificity, including model and manufacturer’s name, and serial and registration numbers. Each notification shall be accompanied by a copy of the insurance policy or policies issued in respect of the vessel and/or aircraft. Such policy or policies need not be issued by the insurer providing liability insurance for motor vehicles.
(c) With regard to senior United Nations officials, missions to the United Nations and members of such missions as have diplomatic status and their families, notices and evidence of insurance under this section shall be delivered to the counselor for Host Country Affairs of the United States Mission to the United Nations. All other notices under this section shall be delivered to the Chief of Protocol, Department of State.
SUBCHAPTER Q – ENVIRONMENTAL PROTECTION
PART 161 – REGULATIONS FOR IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)
Subpart A – General
§ 161.1 Purpose and scope.
These Departmental regulations are designed to supplement the CEQ Regulations and provide for the implementation of those provisions identified in § 1507.3(b) of the CEQ Regulations. The CEQ Regulations are incorporated herein by reference. The Department’s regulations seek to assure that environmental considerations and values are incorporated into the Department’s decisionmaking process and assign responsibility within the Department for assessing the significant environmental effects in the United States of the Department’s actions.
§ 161.2 Policy.
It is the policy of the Department of State to use all practicable means, consistent with the Department’s statutory authority, available resources and national policy, to:
(a) Protect and enhance the quality of the environment;
(b) Ensure that environmental amenities and values are appropriately considered in Departmental actions;
(c) Integrate planning and environmental review procedures with the Department’s decisionmaking process;
(d) Invite and facilitate, when appropriate, Federal, State and local governmental authorities and public involvement in decisions which affect the quality of the environment; and
(e) Recognize the worldwide and long-range character of environmental concerns and, when consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of the world environment.
§ 161.3 Applicability.
The provisions of these regulations apply to decisions on all Departmental actions which may affect the quality of the environment within the United States. The Department is establishing separate environmental review procedures under Executive Order 12114 (January 4, 1979) for actions having potential effects on the environment of global commons or areas outside the jurisdiction of any nation, or on the environment of foreign nations.
§ 161.4 Definitions.
Definitions for many terms used in these regulations may be found in section 1508 of the CEQ Regulations. In addition, for the purpose of these regulations, the term:
(a) Responsible action officer means the Department officer principally responsible for the preparation of action memoranda and other documents relating to a given Departmental action to which by these regulations apply. Ordinarily, the responsible action officer will be the country or office director whose office has action responsibility for a given action.
(b) CEQ Regulations means the regulations implementing the procedural provisions of the National Environmental Policy Act, issued by the Council on Environmental Quality on November 29, 1978 (43 FR 55978-56007), and codified at 40 CFR parts 1500-1508.
(c) United States means the States, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Marianas, the Trust Territory of the Pacific Islands, American Samoa, the U.S. Virgin Islands, Guam and the other territories and possessions of the United States, including the territorial seas thereof. For the purpose of these regulations, actions having significant environmental effects on the resources of the U.S. continental shelf or resources of the U.S. Fishery Conservation Zone subject to the jurisdiction of the United States shall be considered to be actions having significant environmental effects in the United States.
(d) Environmental document means an environmental assessment, an environmental impact statement, a Finding of No Significant Impact or a Notice of Intent prepared under these regulations.
Subpart B – NEPA and Departmental Decisionmaking
§ 161.5 Major decision points and timing.
(a) The responsible action officer shall ensure compliance with these regulations at the earliest practicable stage of Departmental study, consideration or planning of a proposed major Federal action which could significantly affect the quality of the human environment. To accomplish this the responsible action officer must ensure that data developed during the review process is collected, analyzed and made available for consideration early in planning and decisionmaking when it will be most valuable in formulating, reviewing and deciding upon proposals for Departmental action.
(b) Environmental analysis and review of a proposed Departmental action shall be conducted as early as practicable so as to be timely, yet late enough to be relevant to the decisionmaking.
(c) Environmental documents should, whenever possible, accompany the principal action memorandum relating to a proposed action. An environmental document required in conjunction with conclusion of an international agreement shall, where possible, be prepared and circulated for review and comment before final negotiations begin. The completed environmental document should thus ordinarily accompany the principal action memorandum or request for authority to negotiate an agreement under the Department’s Circular 175 regulation (11 FAM 720).
(d) To the maximum extent possible an environmental document should be prepared before the establishment of a final United States position on a proposal. In such cases the document should indicate the alternatives under consideration without specifying a Departmental preference. If the content and dimensions of a proposed action will not be clear until after the conclusion of an international negotiation or if a decision to proceed on an action involving another nation or international organization is required on short notice and before the environmental document can be prepared, the environmental document should be prepared as soon as possible after the conclusion of an agreed text of a treaty or agreement on the proposed action. If the Senate’s advice and consent to a treaty with potential significant environmental effects in the United States will be sought, the final environmental impact statement should accompany other decision documentation for ratification. Legislative environmental impact statements on proposed treaties or legislation shall conform to the requirements of § 1506.8 of the CEQ Regulations and must be prepared in time for Congressional hearings and deliberations.
(e) Because actions having effects on the United States may to varying degrees be initiated, influenced and conducted by other countries, it is recognized that the preparation of environmental documents for such actions must be adjusted to meet a variety of circumstances. Bearing in mind the degree to which other countries possess information on and the ability to affect the decision under consideration, responsible action officers shall seek at all times to prepare environmental analysis documents as early as feasible in the decisionmaking process.
§ 161.6 Responsibilities of departmental officials.
(a) General. As a general rule, responsibility for preparing environmental analysis documents will follow the Department’s standard organizational practices; in this way environmental considerations and awareness of environmental responsibilities will be integrated most readily and effectively into the usual decisionmaking processes.
(1) Departmental bureaus. Each bureau within the Department shall be responsible for:
(i) Implementing these regulations and incorporating them into its normal decisionmaking processes;
(ii) Identifying actions it intends to initiate which may affect significantly the environment of the United States and employing the environmental evaluation procedures outlined in these regulations to ensure that necessary actions are taken to meet the requirements of applicable laws and regulations;
(iii) Coordinating environmental assessment-related activities for which it is responsible with the Office of Environmental Quality and Transboundary Issues in the Bureau of Oceans and International Environmental and Scientific Affairs and supporting and assisting the Office of Environmental Quality and Transboundary Issues in implementing these regulations as required; and
(iv) Providing the personnel required to implement these regulations, informing the Office of Environmental Quality and Transboundary Issues and the Office of the Legal Adviser whenever it is anticipated that environmental documents will be prepared under these regulations, and consulting the Office of Environmental Quality and Transboundary Issues and the Office of the Legal Adviser as necessary for guidance and assistance in the preparation of such documents.
(2) Bureau of Oceans and International Environmental and Scientific Affairs. Through its Office of Environmental Quality and Transboundary Issues the Bureau shall have the primary responsibility for ensuring the Department’s compliance with environmental policies, regulations and procedures. It shall provide policy and professional direction and guidance within the Department for implementing these regulations. It shall also assist other bureaus in obtaining appropriate scientific advice and budgetary resources to implement the regulations. The Office of Environmental Quality and Transboundary Issues will act as the focal point for implementation, working closely with the Departmental bureaus and the Office of the Legal Adviser. The Bureau and other involved bureaus will work closely with the Assistant Secretary for Legislative Affairs in the preparation of environmental documents relating to legislation. In carrying out its responsibilities the Bureau shall:
(i) Coordinate the formulation, development and revision of Departmental policies and positions on matters pertaining to environmental evaluation and review;
(ii) Develop and ensure the implementation of Departmentwide standards, procedures and working relationships for environmental review and compliance with applicable environmental laws and regulations;
(iii) Develop, as an integral part of the Department’s basic decision processes, procedures to ensure that environmental factors are properly considered in all relevant proposals and decisions;
(iv) Monitor these processes to ensure that Departmental procedures are achieving their purposes;
(v) Advise, assist and inform Departmental bureaus of the technical and management aspects of environmental analysis, and of the relevant expertise available in and outside the Department;
(vi) Establish and maintain working relationships with the Council on Environmental Quality, Environmental Protection Agency, and other federal, State and local governmental agencies concerned with environmental matters;
(vii) Represent the Department in working with other government agencies and organizations to formulate, revise and achieve uniform understanding and application of government-wide policies relating to the environment;
(viii) Consolidate and transmit to the appropriate parties Departmental comments on environmental impact statements and other environmental reports prepared by other agencies; and
(ix) Acquire information for and prepare other Departmental reports on environmental assessment matters.
(3) Office of the Legal Adviser. The Office of the Legal Adviser is the principal Departmental authority on the legal aspects of environmental matters and the implementation of these regulations and shall advise and assist Departmental Bureaus in these matters.
(4) Bureau Environmental Coordinators. Each Departmental bureau and major office shall designate an officer to act as coordinator, adviser and principal point of contact for environmental matters within the bureau. The bureau coordinator will advise and assist the bureau in implementing these regulations and serve as a member of the Departmental Committee of Environmental Coordinators.
(5) Departmental Committee of Environmental Coordinators. A Departmental Committee of Environmental Coordinators shall be established to assist in coordinating Departmental implementation of these regulations; in providing advice on major issues, policies and procedures relating to the Department’s implementation of environmental analysis requirements; and in ensuring general conformity of Departmental implementation practices. The Committee’s responsibility will be to exchange information on the implementation of these regulations, assist bureaus in early identification of Departmental actions which should be analyzed for environmental effects and help to coordinate and provide the appropriate analysis. The Committee will be chaired by the Office of Environmental Quality and Transboundary Issues and will be comprised of bureau and office coordinators designated by the respective bureaus and offices.
(6) Outside contractors. Qualified outside contractors may be employed to assist Departmental officers in preparing environmental documents as required under these regulations.
§ 161.7 Categories of actions.
Departmental officers shall review each major Departmental action having a potentially significant effect on the quality of the environment in the United States. The need to prepare formal environmental documents will depend on the scope of the action and the context and intensity of any environmental effects expected if the action is implemented. Departmental actions can generally be grouped into three categories, as follows:
(a) Actions normally requiring environmental impact statements. Any Departmental action deemed to have a “significant effect upon the quality of the human environment” of the United States requires the preparation of an environmental impact statement. The criteria to be used in determining significance are set forth in § 1508.27 of the CEQ Regulations. The Department has reviewed representative actions and has found no common pattern which would enable it to specify actions normally requiring environmental impact statements. If developments later enable such designations to be made the Department will publish a description of proposed actions for such designation in the
(b) Actions categorically excluded from the requirement to prepare environmental impact statements. Categorical exclusion, as defined in § 1508.4 of the CEQ Regulations, provides for exclusion from environmental review of specified actions which have as a class been found to have no significant impact on the quality of the human environment. Neither an environmental assessment nor an environmental impact statement is ordinarily required for such actions. Departmental actions categorically excluded from the requirements of these regulations include the following:
(1) Routine conduct of Departmental and overseas political and economic functions, including reporting on political and economic developments, trends and activities, communicating to host governments United States Government views, maintaining contact with foreign officials and individuals, and facilitating trade opportunities abroad and U.S. business expansion in foreign markets;
(2) Provision of consular services – visas, passports and citizenship, and special consular services, such as issuing or reviewing passports and visas, taking legal depositions, notarizing absentee ballots and other documents and delivering retirement checks, social security payments and veterans benefits;
(3) Conduct of routine administrative functions, such as budget and finance, personnel and general services. This includes routine administrative procurements (e.g., general supplies, negotiating leases for office space or staff housing, ordering supplies and arranging for customs clearances); financial transactions, including salaries, expenses and grants; routine management, formulation and allocation of the Department’s budget at all levels (this does not exempt the preparation of environmental documents for proposals included in the Department’s budget when required); and personnel actions (e.g., promotions, hirings, and counseling American and host country employees who work for the Department of State);
(4) Preparing for and participating in conferences, workshops or meetings for information exchange, data collection or research or study activities; and
(5) Document and information exchanges.
(c) Actions normally requiring environmental assessments. An environmental assessment shall provide the basis of the determination whether an environmental impact statement is required. A Departmental action shall require the preparation of an environmental assessment if the action is not one known normally to require an environmental impact statement and is not categorically excluded. Departmental actions normally included in this category are actions for which the Department has lead-agency responsibility and which may significantly affect the human environment of the United States, such as those actions involving:
(1) [Reserved]
(2) Wetlands, floodplains, endangered species and national historical, archeological and recreational sites (see also specific requirements for environmental review and consultation in § 161.11 of these regulations); and
(3) Ocean dumping, control of toxic substances, disposal and storage of wastes and radioactive substances.
(d) Emergencies and other exceptional circumstances. Not every Departmental activity will be considered a major Federal action for the purposes of these regulations. Several limited classes of action which might ordinarily be subject to these regulations will not be considered major Federal actions requiring the preparation of an environmental impact statement. Among them are the following:
(1) Actions taken in emergency circumstances and disaster and emergency relief activities as defined in § 1506.11 of the CEQ Regulations (in such circumstances the responsible action officer should consult with the Office of Environmental Quality and Transboundary Issues which shall consult with the Council on Environmental Quality about appropriate alternative arrangements);
(2) Mandatory actions required under any treaty or international agreement to which the United States Government is a party, or required by the decisions of international organizations or authorities in which the United States is a member or participant except when the United States has substantial discretion over implementation of such requirements;
(3) Payment of contributions, either assessed or voluntary, to any international organization of which the United States is a member pursuant to the obligation of a treaty or other international agreement or which is not for the purpose of carrying out a specifically identifiable action which would affect the environment; and
(4) Support for or acquiescence in (by affirmative vote or agreement to consensus) an activity or expenditure of funds by an international organization where the United States has no unilateral right to control such expenditures.
Subpart C – Environmental Review Procedures
§ 161.8 General description of the Department’s NEPA process.
In reviewing proposed actions for potential environmental effects in the United States responsible action officers will follow the procedural steps set forth below. These steps are developed in conjunction with the procedural steps required by the CEQ Regulations which are referenced in the following sections.
(a) Preliminary environmental evaluations. Early in the process of considering any possible action the responsible action officer shall review the action to determine if it may cause potential significant environmental effects on the environment of the United States. A proposed action shall be reviewed initially to determine into which of the following three basic categories of action it falls:
(1) Actions normally requiring environmental impact statements;
(2) Actions categorically excluded from environmental impact statements; or
(3) Actions normally requiring environmental assessments. If the responsible action officer concludes that the proposed action is a major action potentially having significant effects in the United States he should, in cooperation with other appropriate Departmental officials, carry out the steps described in these regulations. If during his review of the location of potential environmental effects or following preparation of an environmental assessment it is determined that the action could affect the environment of the global commons or a foreign nation the officer is responsible for ensuring compliance with the Department’s procedures for implementing Executive Order No. 12114 on Environmental Effects Abroad of Major Federal Actions (Foreign Affairs Manual, Volume 2).
(b) Environmental Assessment. An environmental assessment is a concise document which analyzes potential environmental effects to determine if an environmental impact statement is required (CEQ Regulations §§ 1501.3 and 1508.9). If the action does not fall into either the category of those actions normally requiring an environmental impact statement or that of actions categorically excluded from the requirement to prepare an environmental impact statement, then the responsible action officer, in cooperation with other Departmental officials, shall prepare an environmental assessment to determine whether it is necessary to prepare an environmental impact statement or a “Finding of no significant impact”. If the action normally requires an environmental impact statement, there is ordinarily no need for the preparation of an environmental assessment and the environmental impact statement process should be initiated without preparing such an assessment. If the action is categorically excluded, no further environmental review is needed. If an environmental assessment is prepared it may also be used to evaluate whether the proposed action may have effects outside the United States.
(c) Finding of no significant impact. If the environmental assessment indicates that the environmental effects of the action in the United States are not significant, then the responsible action officer shall make a “Finding of no significant impact”, thereby concluding the NEPA review process (CEQ Regulations §§ 1501.4 and 1508.13).
(d) Environmental impact statement. If the environmental assessment demonstrates that the environmental effects of the action with the United States may be “significant” (see § 1508.27 of the CEQ Regulations) the Department is required to prepare an environmental impact statement (EIS) in accordance with these regulations (see also CEQ Regulations § 1501.8, part 1502 and §§ 1506.2 through 1506.7). In preparing the environmental impact statement the following steps will be carried out:
(1) Notice of intent to prepare an EIS. If an impact statement is required, the Department will publish in the
(2) Scoping procedures. The Department will then hold a scoping meeting with interested agencies and individuals to determine the proper content (“scope”) of the statement (CEQ Regulations §§ 1501.7 and 1508.25).
(3) Draft environmental impact statement (DEIS). The Department will then prepare a draft EIS (DEIS) which will be filed with the Environmental Protection Agency and circulated to agencies and the public for comment for at least 45 days, except where the CEQ Regulations and these regulations permit the time period to be shortened (CEQ Regulations § 1501.8, part 1502, §§ 1506.2 through 1506.7, 1506.10(d) and 1506.11; 161.7(d), 161.9(n)(2)).
(4) Final environmental impact statement (FEIS). In light of the comments and following any revision in the draft EIS, the Department will file with the Environmental Protection Agency and circulate to agencies and the public a final EIS at least 30 days before making a final decision on the action, except where the CEQ Regulations and these regulations permit the time period to be shortened (CEQ Regulations §§ 1506.9, 1506.10(d), 1506.11; 161.7(d), 161.9(n)(2)).
(5) Record of decision. After making a decision on the action, the Department will make available a formal “Record of decision” (CEQ Regulations § 1505.2).
§ 161.9 Specific steps in the Department’s NEPA process.
(a) Decision whether to prepare an EIS. In deciding whether to prepare an environmental impact statement, the responsible action officer shall make an initial review in the early planning stages of a proposed action to identify and evaluate potential environmental effects of the actions and all reasonable measures which may be taken to mitigate adverse impacts. This review must be conducted in conjunction with all requests under the Department’s Circular 175 procedure (11 FAM 720), with all actions involving the obligation of funds within the Department’s annual or supplemental budget submissions to the Office of Management and Budget, and with other actions when a potentially significant environmental impact may result. The responsible action officer shall ensure that the principal action memoranda prepared for such actions properly reflect the environmental review in all cases. No written statement is required in the case of actions which do not raise the question of environmental impacts. The environmental evaluation document prepared shall be considered along with political, economic and other decisionmaking factors relating to the proposed action.
(1) Review of the categories of actions. During the initial environmental review of the proposed action, the responsible action officer should classify the proposed Departmental action as one either normally requiring an environmental impact statement, normally not requiring such a statement, or normally requiring an environmental assessment. (See § 1504.1 of the CEQ Regulations and § 161.7 of these regulations.)
(i) Actions normally requiring environmental statements. Environmental assessments are not required for actions which it is already known will require the preparation of environmental impact statements. For each major Departmental action which, in the view of the responsible action officer meets the criteria of this section, he shall, in cooperation with theOffice of Environmental Quality and Transboundary Issues, initiate steps to prepare an environmental impact statement. This will be accomplished by preparing a “Notice of intent” to prepare an EIS (see § 1508.22 of the CEQ Regulations). The Office of Environmental Quality and Transboundary Issues shall arrange for publication of the notice in the
(ii) Actions categorically excluded. Separate detailed documentation is not normally required for actions which are categorically excluded and which are therefore exempt from the requirement of preparations of an environmental assessment or environmental impact statement. However, the responsible action officer shall note in the action memorandum concerning the action that the proposed action has been reviewed under the Department’s environmental procedures and determined to be categorically excluded. The Office of Environmental Quality and Transboundary Issues shall periodically review actions in the classes categorically excluded under these regulations to determine if the original decision to categorically exclude the class remains valid. If such a review determines that a proposed action may have a significant impact on the human environment the necessary revision in the categorical exclusion shall be made and an environmental assessment shall be prepared to determine the need for the preparation of an environmental impact statement.
(iii) Actions normally requiring environmental assessments. For each action meeting the criteria of this section the responsible action officer shall prepare an environmental assessment (see §§ 1501.3 and 1508.9 of the CEQ Regulations) and, on the basis of that assessment, determine if an EIS is required. If the determination is that no environmental impact statement is required, the responsible action officer shall, in coordination with the Office of Environmental Quality and Transboundary Issues, prepare a “Finding of no significant impact” (see §§ 1501.4 and 1508.13 of the CEQ Regulations). The “Finding of no significant impact” shall be made available to the public through direct distribution and publication in the
(2) Preparation of environmental assessments. Environmental assessments, as defined in the CEQ Regulations (§ 1508.9), should be prepared as directed in § 1501.3 of the CEQ Regulations. The environmental assessment shall be used to determine whether to prepare an environmental impact statement or a “Finding of no significant impact”. The assessment shall include a brief discussion of the need for the proposed action, of alternatives and of environmental impacts and a listing of agencies and persons consulted in preparing the assessment.
(3) Notice of intent to prepare an EIS. As soon as practicable after deciding to prepare an environmental impact statement and before initiating the scoping process (see § 161.9(b) of these regulations) the Department or another lead agency, if one is designated in accordance with § 1501.5 of the CEQ Regulations, shall publish in the
Office of Environmental Quality and Transboundary Issues shall arrange for publishing the notice.
(b) Scoping. The Department shall conduct an early and open meeting with interested agencies and the public for determining the scope of issues to be addressed in a given environmental impact statement and for identifying the significant issues related to a proposed action. The elements of the scoping process are defined in § 1501.7 of the CEQ Regulations and must include consideration of the range of actions, alternatives, and impacts discussed in § 1508.25 of the CEQ Regulations.
(c) Cooperation with other agencies. Departmental officials are encouraged to cooperate with other agencies and the public throughout the conduct of the Department’s NEPA process. The Office of Environmental Quality and Transboundary Issues shall ensure also that the Department reviews the draft and final impact statements submitted for review by other agencies (§ 1502.19 of the CEQ Regulations). Where appropriate and to eliminate duplication it shall arrange to prepare environmental assessments and impact statements jointly with other Federal or State agencies. Where possible it will arrange for the department to “adopt” statements prepared by other agencies (§ 1506.3 of the CEQ Regulations). It shall arrange lead and cooperating agency responsibilities for preparing environmental documents (see §§ 1501.5 and 1501.6 of CEQ Regulations).
(d) Preparation of draft environmental impact statement. The responsible action officer shall be responsible for the preparation of the draft environmental impact statement in the manner described in § 1501.8, part 1502, and §§ 1506.2 through 1506.7 of the CEQ Regulations. Preliminary copies of the draft environmental impact statement and attachments shall be submitted to the Office of Environmental Quality and Transboundary Issues before any formal review is conducted outside the Department. This submission shall be accompanied by a list of Federal, State, and local officials (Part 1503 of the CEQ Regulations) and a list of other interested parties (§ 1506.6 of the CEQ Regulations) whose comments shall be sought. The Office of Environmental Quality and Transboundary Issues shall review the draft and obtain additional comments from other appropriate Departmental bureaus and offices.
(e) Review of and comment on draft EIS. For external review, the Office of Environmental Quality and Transboundary Issues shall transmit five copies of the revised draft statement to the Environmental Protection Agency (EPA) Office of Federal Activities. EPA will publish a notice of the statement’s availability the following week in the
(f) Public involvement. (1) Departmental officials will make diligent efforts to involve the public in implementing these regulations as provided in §§ 1501.4(e), 1503.1(a)(e) and 1506.6 of the CEQ Regulations.
(2) Interested persons can obtain information on the Department’s environmental impact statements and other aspects of the Department’s NEPA process by contacting the Director, Office of Environmental Quality and Transboundary Issues , Room 7820, Department of State, Washington, DC 20520 (tel. 202/632-9266). Information pertaining to the NEPA process may be sent to the above address.
(3) The responsible action officer shall identify those persons, community organizations, environmental interest groups, international organizations or other bodies which may have an interest in or be affected by the proposed Departmental action and who should therefore be involved in the NEPA process. With the assistance of the Office of Environmental Quality and Transboundary Issues, the responsible action shall transmit a list of such persons, groups and organizations to the Office of Environmental Quality and Transboundary Issues at the same time he submits:
(i) A recommendation regarding a “Finding of no significant impact”;
(ii) A “Notice of intent to prepare an EIS”;
(iii) A recommendation on possible public hearings (see § 1506.6(c) of CEQ Regulations);
(iv) A draft EIS, or
(v) A final EIS.
(4) The responsible action officer shall consult with the Office of Environmental Quality and Transboundary Issues and make recommendations regarding the need for public hearings. The Office of Environmental Quality and Transboundary Issues shall, as necessary, review such recommendations with the Office of the Legal Adviser.
(g) Preparation of final environmental impact statement. (1) After conclusion of the review process with other Federal, State and local agencies and the public, the responsible action officer shall consider suggestions received and revise the draft environmental impact statement as appropriate in accordance with part 1502 and § 1501.8 and §§ 1506.2 through 1506.7 of the CEQ Regulations.
(2) Five copies of the preliminary final environmental impact statement, with attached copies of the comments received and suggested responses, shall be provided to the Office of Environmental Quality and Transboundary Issues. The Office of Environmental Quality and Transboundary Issues
will, as appropriate, obtain additional comments from any other appropriate Departmental bureau or offices and notify the responsible action officer of any further changes required and the number of final statements to be transmitted. The Office of Environmental Quality and Transboundary Issues shall submit five copies of the final statement to the Environmental Protection Agency’s Office of Environmental Review. Copies shall also be sent to all parties who commented and to other interested parties in accordance with § 1506.9 of the CEQ Regulations.
(3) Each draft and final statement, the supporting documentation, and the “Record of decision” (see § 161.9(h) of these regulations) shall be available for public review and copying at the Office of Environmental Quality and Transboundary Issues (OES/ENH), Room 7820, Department of State, Washington, DC 20520 (tel. 202/632-9267).
(h) Record of the decision. At the time of the decision on the proposed action, the responsible Departmental official shall consult with the Office of Environmental Quality and Transboundary Issues and prepare a concise “Record of decision” (see § 1505.2 of the CEQ Regulations).
(i) Timing of EIS preparation and action decision. Preparation of an environmental impact statement shall be initiated as soon as the responsible action officer, in consultation with the Office of Environmental Quality and Transboundary Issues and the Office of the Legal Adviser, has determined that the statement shall be prepared. Except where permitted by the CEQ Regulations (§§ 1506.10(d), 1506.11) and these regulations (§§ 161.7(d), 161.9(n)(2)), no decision on the proposed action shall be made by the Department until the later of the following dates:
(1) Ninety (90) days after publication by EPA of a notice of availability of a Departmental draft EIS.
(2) Thirty (30) days after publication by EPA of a notice of availability of a departmental final EIS.
(j) Implementing and monitoring the decision. Section 1505.3 of the CEQ Regulations establishes the procedures to be followed by the Department in monitoring to assure that any mitigation measures or other commitments associated with the decision and its implementation are carried out. The Office of Environmental Quality and Transboundary Issues will maintain general oversight and cooperate with bureau officers in such monitoring.
(k) Supplemental environmental impact statements. Departmental officials shall supplement a draft EIS whenever an alternative which is substantially different from those discussed in the draft is under consideration or when the draft is otherwise out of date. A final EIS shall be supplemented when a substantial change is made in the proposed action or when significant new information on the environmental impacts comes to light. A supplemental EIS should be prepared, circulated and approved in accordance with the provisions of § 1502.9 of the CEQ Regulations. No supplemental EIS need be prepared when the final decision on the action in question has already been made. If there are reasons not to prepare a supplemental EIS when one ordinarily would be called for, the responsible action officer should consult with the Office of Environmental Quality and Transboundary Issues , which shall consult with the Council on Environmental Quality on the matter.
(l) Programmatic and generic environmental impact statements. (1) Before preparing an environmental document under these regulations the responsible action officer should determine if there exists a generic or programmatic environmental document analyzing actions, effects or issues similar to those involved in the proposed action. A generic environmental document reviews the environmental effects that are generic or common to a class of Departmental actions which may not be specific to any single country or area. Where such a document is prepared it could be applied to a number of similar specific country applications. If a generic document exists and if it deals with relevant similarities in the action, such as common timing, environmental impacts, alternatives, methods of implementation or subject matter it will not be necessary to prepare further environmental documentation.
(2) A programmatic environmental document shall focus its analysis on the environmental aspects of an entire program rather than on the specific elements of the program. If a programmatic environmental document has already been prepared the responsible action officer should determine whether it adequately deals with the environmental effects of the particular action under review. If the programmatic document adequately reviews the environmental impacts of the action under consideration, then additional environmental documentation is not required under these regulations. In preparing environmental documents on specific actions, Departmental officers shall consider the advisability of modifying or expanding the documents so they may serve as generic or programmatic documents for a broader range of actions.
(m) Amendments. Amendments to these regulations may be made by the Assistant Secretary for Oceans and International Environmental and Scientific Affairs in consultation with other Departmental bureaus and the Office of the Legal Adviser. Such amendments will be published in the
(n) Modifications. The Department’s procedures for preparing environmental documents may be modified to accommodate the following circumstances:
(1) Classified material. Most Departmental environmental documents will not normally contain classified or administratively controlled material (see § 1507.3(c) of the CEQ Regulations); in some cases, however, an environmental document must include such material to evaluate adequately environmental effects. In such cases Departmental environmental documents, or portions thereof, may be classified. Such material should, if possible, be confined to a classified annex of the environmental document. Approval for classification must be granted with the concurrence of the Assistant Secretary for Oceans and International Environmental and Scientific Affairs and the Office of the Legal Adviser, and the assistant secretary of the bureau with the action responsibility for the proposed action. In these cases, Departmental environmental documents or portions thereof may be classified in accordance with the criteria set forth in Executive Order 12065, dated December 1, 1978. Handling and disclosure of classified or administratively controlled material shall be governed by 22 CFR part 9. The portions of an environmental document which are not classified or administratively controlled will be made available to persons outside the Department, as provided in 22 CFR part 9. Classification does not preclude the obligation to ensure that environmental documents are reviewed by competent scientific and technical experts. Appropriate arrangements will be made through the Office of Environmental Quality and Transboundary Issues or Federal agency review of classified or administratively controlled environmental documents.
(2) Time periods for environmental review. When necessary to comply with other specific statutory requirements or for compelling reasons of national policy the Department may, by agreement with the Environmental Protection Agency, modify time periods specified by the CEQ Regulations for preparing environmental documents in accordance with § 1506.10 of the CEQ Regulations. See also provisions for emergency circumstances contained in § 1506.11 of the CEQ Regulations and § 161.7(d) of these regulations.
Subpart D – Coordination of Other Requirements of NEPA
§ 161.10 [Reserved]
§ 161.11 Environmental review and consultation requirements.
In addition to the environmental review requirements of NEPA the Department has other statutory environmental review and consultation requirements. Departmental officials, in cooperation with the Office of Environmental Quality and Transboundary Issues and the Office of the Legal Adviser shall, to the maximum extent possible, conduct environmental review and consultation for these additional requirements concurrently with and integrated with preparation of assessments, and environmental impact statements. The principal additional requirements affecting the Department of State’s actions are outlined below.
(a) Section 7 of the Endangered Species Act, as amended, 16 U.S.C. 1531 et seq., requires identification of and consultation on aspects of any Departmental action that may have effects in the United States on listed species or their habitat. As appropriate, written request for consultation, along with the draft environmental document, shall be conveyed by the Office of Environmental Quality and Transboundary Issues to the Regional Director of the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate, for the Region in the United States where the action will be carried out.
(b) Section 106 of the National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470(f), requires identification of National Register properties, eligible properties, or properties in the United States which may be eligible for the National Register within the area of the potential impact of a proposed Departmental action. Evaluation of the impact of the action on such properties shall be discussed in draft environmental impact statements and transmitted to the Advisory Council on Historic Preservation for comments.
(c) Executive Order 11988 (Floodplains Management) and Executive Order 11990 (Wetlands), requires identification of actions which will occur in or affect a floodplain or wetland (e.g., in areas along the boundary with Canada or Mexico). A comparative evaluation of such actions shall be discussed in draft environmental impact statements and transmitted to the U.S. Water Resources Council for comments.
(d) Fish and Wildlife Coordination Act, 16 U.S.C. 661 et seq.
(e) Section 309 of the Clean Air Act of 1955, as amended, 42 U.S.C. 7609.
(f) Clean Water Act of 1977, 33 U.S.C. 1251 et seq.
(g) Coastal Zone Management Act of 1972, as amended, 16 U.S.C. 1451 et seq.
(h) Marine Protection, Research and Sanctuaries Act of 1972, as amended, 16 U.S.C. 1401 et seq.
(i) Deepwater Port Act of 1974, as amended, 33 U.S.C. 1501 et seq.
(j) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq.
§ 161.12 Environmental effects abroad of major departmental actions.
Departmental officials shall analyze actions under their cognizance with due regard for the environmental effects in the global commons and areas outside the jurisdiction of any nation and in foreign jurisdictions. Such analysis shall be prepared in accordance with separate Departmental procedures (Foreign Affairs Manual, Volume 2), dated September 4, 1979 for implementing Executive Order 12114, “Environmental Effects Abroad of Major Federal Actions” (44 FR 1957), dated January 4, 1979.
SUBCHAPTER R – ACCESS TO INFORMATION
PART 171 – PUBLIC ACCESS TO INFORMATION
Subpart A – General Policy and Procedures
§ 171.1 General provisions.
(a) This subpart contains the rules that the Department of State and the Foreign Service Grievance Board (FSGB), an independent body, follow in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, and the Privacy Act of 1974 (PA), 5 U.S.C. 552a, as amended. Records of the Department shall be made available to the public upon request made in compliance with the access procedures established in this part, except for any records exempt by law from disclosure. Regulations at 22 CFR 172.1 through 172.9 govern, inter alia, the service of subpoenas, court orders, and other demands or requests for official Department information or action, as well as the Department’s response to demands or requests for official Department information or action in connection with legal proceedings in the United States to which the Department is not a party.
(b) Definitions. (1) For purposes of subparts A, B, and D of this part, record means information regardless of its physical form or characteristics – including information created, stored, and retrievable by electronic means – that is created or obtained by the Department and under the control of the Department at the time of the request, including information maintained for the Department by an entity under Government contract for records management purposes. It does not include records that are not already in existence and that would have to be created specifically to respond to a request. Information available in electronic form shall be searched and compiled in response to a request unless such search and compilation would significantly interfere with the operation of the Department’s automated information systems.
(2) For purposes of subparts A, B, C, and D of this part, Department means the United States Department of State, including its field offices and Foreign Service posts abroad.
§ 171.2 Types of records maintained.
Most of the records maintained by the Department pertain to the formulation and execution of U.S. foreign policy. The Department also maintains certain records that pertain to individuals, such as applications for U.S. passports, applications for visas to enter the United States, records on consular assistance given abroad by U.S. Foreign Service posts to U.S citizens and legal permanent residents, and records on Department employees. Further information on the types of records maintained by the Department may be obtained by reviewing the Department’s records disposition schedules, which are available on the Department’s Web site at www.foia.state.gov.
§ 171.3 Records available on the Department’s Web site.
Information that is required to be published in the
§ 171.4 Requests for information – types and how made.
(a) Requests for records made in accordance with subparts A, B, and C of this part must be made in writing and may be made by mail addressed to the Office of Information Programs and Services (IPS), U.S. Department of State, State Annex 2 (SA-2), 515 22nd Street, NW., Washington, DC 20522-8100, or by fax to (202) 261-8579, or through the Department’s FOIA Web site (www.foia.state.gov). PA requests may be made by mail or fax only. IPS does not accept requests submitted by email.
(1) Requests for passport records that are covered under PA System of Records Notice 26, including passport records issued from 1925 to present, should be mailed to U.S. Department of State, Law Enforcement Liaison Division, CA/PPT/S/L/LE, 44132 Mercure Cir, P.O. Box 1227, Sterling, VA 20166. Further guidance on obtaining passport records is available on the Department’s Web site: travel.state.gov/content/passports/english/passports/services/obtain-copies-of-passport-records.html.
(2) Requests for records of the Office of Inspector General (OIG) may be submitted to U.S. Department of State, Office of Inspector General, Office of General Counsel, Washington, DC 20520-0308, ATTN: FOIA officer. In addition, FOIA requests seeking OIG records may be submitted via email to [email protected], which is preferred. PA requests are accepted by mail only. Guidance is available on the OIG’s Web site: oig.state.gov/foia/index.htm.
(3) All other requests for other Department records must be submitted to the Office of Information Programs and Services by one of the means noted above. The Office of Information Programs and Services, the Law Enforcement Liaison Division of the Office of Passport Services, and the OIG are the only Department components authorized to accept FOIA requests submitted to the Department.
(4) Providing the specific citation to the statute under which a requester is requesting information will facilitate the processing of the request by the Department. The Department automatically processes requests for information maintained in a PA system of records under both the FOIA and the PA to provide the requester with the greatest degree of access to the requester. Such information may be withheld only if it is exempt from access under both laws; if the information is exempt under only one of the laws, it must be released.
(b) Although no particular format is required, a request must reasonably describe the Department records that are sought. To the extent that requests are specific and include all pertinent details about the requested information, it will be easier for the Department to locate responsive records. For FOIA requests, such details include the subject, timeframe, names of any individuals involved, a contract number (if applicable), and reasons why the requester believes the Department may have records on the subject of the request.
(c) While every effort is made to guarantee the greatest possible access to all requesters regardless of the statute(s) under which the information is requested, the following guidance is provided for the benefit of requesters:
(1) The Freedom of Information Act applies to requests for records concerning the general activities of government and of the Department in particular (see subpart B of this part).
(2) The Privacy Act applies to requests from U.S. citizens or legal permanent resident aliens for records that pertain to them that are maintained by the Department in a system of records retrievable by the individual’s name or personal identifier (see subpart C of this part).
(d) As a general matter, information access requests are processed in the order in which they are received. However, if the request is specific and the search can be narrowed, it may be processed more quickly. Additionally, FOIA requests granted expedited processing will be placed in the expedited processing queue (see § 171.11(f) for more information). Multi-tracking of FOIA requests is also used to manage requests (see § 171.11(h)).
§ 171.5 Archival records.
The Department ordinarily transfers records designated as historically significant to the National Archives when they are 25 years old. Accordingly, requests for some Department records 25 years old or older should be submitted to the National Archives by mail addressed to Special Access and FOIA Staff (NWCTF), 8601 Adelphi Road, Room 5500, College Park, MD 20740; by fax to (301) 837-1864; or by email to [email protected]. The Department’s Web site, www.foia.state.gov, has additional information regarding archival records.
Subpart B – Freedom of Information Act Provisions
§ 171.10 Purpose and scope.
This subpart contains the rules that the Department follows under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. The rules should be read together with the FOIA, which provides additional information about access to records and contains the specific exemptions that are applicable to withholding information, the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (OMB Guidelines), and information located at www.foia.state.gov. The Department processes records maintained in a Privacy Act (PA) system of records that are determined to be exempt from disclosure under the PA under the FOIA as well. As a result, requests that seek such records are also subject to this subpart.
§ 171.11 Processing requests.
(a) In general. (1) Subject to paragraph (a)(2) of this section, the Director of the Office of Information Programs and Services (IPS) is responsible for initial action on all FOIA requests for Department records with two exceptions: Requests submitted directly to the Office of Inspector General (OIG), which receives and processes requests for OIG records; and the Office of Passport Services in the Bureau of Consular Affairs (PPT), which receives and processes requests for passport records (see § 171.4(a)). Once received by IPS, all requests for records coming under the jurisdiction of the following bureaus or offices are processed by those bureaus, although IPS may provide review and coordination support to these bureaus/offices in some situations: the Bureau of Consular Affairs’ Office of Visa Services, Office of Passport Services (except for information identified in § 171.4(a)), and Office of Overseas Citizens Services; the Bureau of Diplomatic Security; the Bureau of Human Resources; the Office of Medical Services; and the Foreign Service Grievance Board (FSGB). Additionally, the FSGB, as an independent body, processes all FOIA requests seeking access to its records and responds directly to requesters.
(2) The Division Chief, Requester Liaison Division, in the Office of Information Programs and Services, shall issue all initial decisions on whether a request is valid or perfected, and whether to grant or deny requests for a fee waiver or for expedited processing.
Definitions. The following definitions apply for purposes of this section:
(1) Control means the Department’s legal authority over a record, taking into account the ability of the Department to use and dispose of the record, the intent of the record’s creator to retain or relinquish control over the record, the extent to which Department personnel have read or relied upon the record, and the degree to which the record has been integrated into the Department’s record-keeping systems or files.
(2) Urgently needed information. The information has a particular value that will be lost if not disseminated quickly. Ordinarily this means a breaking news story of general public interest. Information of historical interest only or information sought for litigation or commercial activities would not generally qualify, nor would a news media publication or broadcast deadline unrelated to the breaking nature of the story.
(3) Actual or alleged Federal government activity. The information concerns actual or alleged actions taken or contemplated by the government of the United States, or by one of its components or agencies, including the Congress.
(4) Unusual circumstances means:
(i) The need to search for and collect the requested records from Foreign Service posts or Department offices other than IPS;
(ii) The need to search for, collect, and appropriately examine a voluminous amount of distinct records; or
(iii) The need to consult with another agency or other agencies that has/have a substantial interest in the records, or among two or more Department components that have a substantial subject-matter interest therein. In the majority of requests received by the Department unusual circumstances exist due to the need to search in multiple bureaus/offices/posts located around the globe.
(c) Form of request and response. A requester may ask for any information he or she believes the Department has in its possession or control. The requester must describe the records sought in sufficient detail to enable Department personnel to locate them with a reasonable amount of effort. The more specific the information the requester furnishes, the more likely that Department personnel will be able to locate responsive records if they exist. Any records provided in response to a request shall be provided in the form or format requested if the records are readily reproducible in that form or format.
(d) Agreement to pay fees. By making a FOIA request, the requester shall be considered to have agreed to pay all applicable fees up to $25, unless a fee waiver is granted. IPS will confirm this agreement in an acknowledgement letter. When making a request, the requester may specify a willingness to pay a greater or lesser amount. If the Department determines that costs and fees will exceed the amount agreed to by the requester, the Department shall inform the requester of estimated fees and process up to the amount of the original agreement, unless a new agreement is made.
(e) Receipt of request. The Department is in receipt of a request when it reaches IPS, OIG, or PPT, depending on which office is the intended recipient. At that time, the Department shall send an acknowledgement letter to the requester that identifies the date of receipt of the request in the proper component (IPS, OIG, or PPT), and the case tracking number. The Department (IPS, OIG, or PPT) has 20 working days in which to determine whether to comply with a perfected request. Regardless of which of the three offices authorized to receive FOIA requests receives the request (whether IPS, OIG, or PPT), the Department shall have no more than 10 working days to direct a request to the appropriate office (whether IPS, OIG, or PPT), at which time the 20-day limit for responding to the request will commence. The 20-day period shall not be tolled by the Department except:
(1) The Department may make one request to the requester for clarifying information and toll the 20-day period while waiting for the requester’s response; or
(2) If necessary to clarify with the requester issues regarding fees. In either case, the Department’s receipt of the information from the requester ends the tolling period.
(f) Expedited processing. Requests shall receive expedited processing when a requester demonstrates that a “compelling need” for the information exists. A “compelling need” is deemed to exist where the requester can demonstrate one of the following:
(1) Failure to obtain requested information on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual.
(2) The information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal government activity. Requesters must demonstrate that their primary activity involves publishing or otherwise disseminating information to the public in general, not just to a particular segment or group.
(3) Failure to release the information would impair substantial due process rights or harm substantial humanitarian interests.
(4) A request for expedited processing may be made at the time of the initial request for records or at any later time. The request for expedited processing shall set forth with specificity the facts on which the request is based. A notice of the determination whether to grant expedited processing shall be provided to the requester within 10 calendar days of the date of the receipt of the request in the appropriate office (whether IPS, OIG, or PPT). A denial of a request for expedited processing may be appealed to the Director of IPS within 30 calendar days of the date of the Department’s letter denying the request. A decision in writing on the appeal will be issued within 10 calendar days of the receipt of the appeal. See § 171.4 for contact information.
(g) Time limits. The statutory time limit for responding to a FOIA request or to an appeal from a denial of a FOIA request is 20 working days. Whenever the statutory time limit for processing a request cannot be met because of “unusual circumstances” as defined in the FOIA, and the Department extends the time limit on that basis, the Department shall, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which processing of the request can be expected to be completed. See § 171.11(b)(4). Where the extension exceeds 10 working days, the Department shall, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing. The Department shall make available its designated FOIA contact and its FOIA Public Liaison for this purpose.
(h) Multi-track processing. The Department uses three processing tracks by distinguishing between simple and more complex requests based on the amount of work and/or time needed to process the request. The Department also uses a processing track for requests in which the Department has granted expedited processing. The Department may provide requesters in a slower track an opportunity to limit the scope of their request in order to qualify for faster processing.
(i) Tracking requests. Requesters may contact IPS using the individualized tracking number provided to the requester in the acknowledgment letter, and the Department will provide, at a minimum, information indicating the date on which the agency received the request and an estimated date for completion.
(j) Cut-off date. In determining which records are responsive to a request, the Department ordinarily will include only records in its possession as of the date of initiation of the search for responsive records, unless the requester has specified an earlier cut-off date.
(k) Electronic records. Information maintained in electronic form shall be searched and compiled in response to a request unless such search and compilation would significantly interfere with the operation of the Department’s automated information systems.
(l) Segregation of records. The Department will release any reasonably segregable portion of a record after redaction of the exempt portions. The amount of information redacted and the exemption under which the redaction is made shall be indicated on the released portion of the record unless including that indication would harm an interest protected by the exemption. If technically feasible, the amount of information redacted and the exemption under which the redaction is made shall be indicated at the place in the record where the redaction was made.
(m) Referrals and consultations. (1) If the Department determines that records retrieved as responsive to the request were created by another agency, it ordinarily will refer the records to the originating agency for direct response to the requester. If the Department determines that Department records retrieved as responsive to the request are of interest to another agency or Federal government office, it may consult with the other agency or office before responding to the request.
(2) Whenever the Department refers any part of the responsibility for responding to a request to another agency, it shall document the referral, maintain a copy of the record that it refers, and notify the requester of the referral.
(3) Agreements regarding consultations and referrals. The Department may make agreements with other agencies to eliminate the need for consultations or referrals for particular types of records.
(4) The Department will make efforts to handle referrals and consultations according to the date that the referring agency initially received the FOIA request.
(5) The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. In such instances, the Department will coordinate with the originating agency to seek its views on the disclosability of the record(s).
(n) Requests for information about individuals to be processed under the FOIA – (1) First-party requests. A first-party request is one that seeks access to information pertaining to the person making the request.
(2) Verification of personal identity. To protect the personal information found in its files, the Department recommends that first-party requesters provide the following information so that the Department can ensure that records are disclosed only to the proper persons: the requester’s full name, current address, citizenship or legal permanent resident alien status, and date and place of birth (city, state, and country). A first-party request should be signed, and the requester’s signature should be either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746 as a substitute for notarization.
(3) Third-party requests. A third-party request is one that seeks access to information pertaining to a third party (i.e., an individual other than the person submitting the request). A third-party requester who is the legal representative of another person covered under the PA, and submits all requirements under subpart C of this part, will be treated as a first-party requester.
(i) A third-party requester may receive greater access to requested information by submitting information about the subject of the request that is set forth in paragraph (n)(1) of this section, and providing proof that that third party is deceased or the third party’s authorization to the Department to release information about him- or herself to the requester. The third-party authorization: should take one of the following forms:
(ii) A signed and notarized authorization by the third party; or
(iii) A declaration by the third party made in compliance with the requirements set forth in 28 U.S.C. 1746 authorizing disclosure pertaining to the third party to the requester. The third-party authorization or declaration should be dated within six months of the date of the request. In addition, the Department’s Certification of Identity form, DS-4240, can be used to provide authorization from a third party.
(iv) Please note that if a requester is seeking information about a third party and the information is located in a PA system of records, the requester should review subpart C of this part. By providing verification of identity and authorization under that subpart, the third party is treated as a first party for processing purposes. Without providing the required information listed in that subpart, the request will still be processed under the FOIA procedures in subpart B of this part.
(4) Requests for visa information. According to the Immigration and Nationality Act, 222(f) (8 U.S.C. 1202(f)), the records of the Department of State and of diplomatic and consular offices of the United States pertaining to the issuance or refusal of visas or permits to enter the United States shall be considered confidential and shall be used only for the formulation, amendment, administration, or enforcement of the immigration, nationality, and other laws of the United States. Other information found in the visa file, such as information submitted as part of the application and information not falling within section 222(f) or another FOIA exemption may be provided. In order to provide more information to requesters seeking visa records, the following information should be provided with the FOIA request for both the petitioner and the beneficiary: full name, as well as any aliases used; current address; date and place of birth (including city, state, and country); the type of visa (immigrant or non-immigrant); the country and Foreign Service post where the visa application was made; when the visa application was made; and whether the visa application was granted or denied; and if denied, on what grounds. Providing additional information regarding the records sought will assist the Department in properly identifying the responsive records and in processing the request. In order to gain maximum access to any visa records that exist, attorneys or other legal representatives requesting visa information on behalf of a represented individual should submit a statement signed by both the petitioner and the beneficiary authorizing release of the requested visa information to the representative. Alternatively, the Department’s form, DS-4240, may be used to certify the identity of the requester and to provide authorization from the petitioner and the beneficiary to release the requested information to the legal representative. Forms created by other Federal agencies will not be accepted.
(5) Requests for passport records. All passport records requests must meet the requirements found in § 171.22(d). If the PA requirements are not met, the requests will be processed under this subpart and access may be limited.
§ 171.12 Business information.
(a) Definitions. The following definitions apply for purposes of this section:
(1) Business information means commercial or financial or proprietary intellectual information obtained by the Department from a submitter that may be exempt from disclosure as privileged or confidential under Exemption 4 of the FOIA.
(2) Submitter means any person or entity from which the Department obtains business information, directly or indirectly. The term includes corporations, partnerships, and sole proprietorships; state, local, and tribal governments; foreign governments, NGOs and educational institutions.
(b) Designation of business information. A submitter of information must use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers exempt from disclosure under FOIA Exemption 4. These designations will expire ten years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period.
(c) Notice to submitters. The Department shall provide a submitter with prompt written notice of a FOIA request that seeks its business information, or of an administrative appeal of a denial of such a request, whenever required under paragraph (d) of this section, except as provided in paragraph (e) of this section, in order to give the submitter an opportunity to object to disclosure of any specified portion of that information under paragraph (f) of this section. The notice shall either describe the information requested or include copies of the requested records or record portions containing the business information.
(d) When notice is required. Notice shall be given to a submitter whenever:
(1) The information has been designated in good faith by the submitter as information considered exempt from disclosure under Exemption 4; or
(2) The Department has reason to believe that the information may be exempt from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption.
(e) When notice is not required. The notice requirements of paragraphs (c) and (d) of this section shall not apply if:
(1) The Department determines that the information is exempt from disclosure;
(2) The information lawfully has been published or has been officially made available to the public;
(3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous, except that, in such a case, the Department shall, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.
(f) Opportunity to object to disclosure. The Department will allow a submitter a reasonable time to respond to the notice described in paragraph (c) of this section and will specify that time period in the notice. If a submitter has any objections to disclosure, it should provide the component a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential. In the event that a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA.
(g) Notice of intent to disclose. The Department shall consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose business information. Whenever the Department decides to disclose business information over the objection of a submitter, it shall give the submitter written notice, which shall include:
(1) A statement of the reason(s) why each of the submitter’s disclosure objections was not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.
(h) Notice of lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of business information, the Department shall promptly notify the submitter.
(i) Notice to requester. Whenever the Department provides a submitter with notice and an opportunity to object to disclosure under paragraph (f) of this section, the Department shall also notify the requester. Whenever the Department notifies a submitter of its intent to disclose requested business information under paragraph (g) of this section, the Department shall also notify the requester. Whenever a submitter files a lawsuit seeking to prevent the disclosure of business information, the Department shall notify the requester.
§ 171.13 Appeal of denial of request for records.
(a) Any denial, in whole or in part, of a request for Department records under the FOIA may be administratively appealed to the Appeals Review Panel of the Department. This appeal right includes the right to appeal the determination that no records responsive to the request exist in Department files. Appeals must be postmarked within 60 calendar days of the date of the Department’s denial letter and sent to: Appeals Officer, Appeals Review Panel, Office of Information Programs and Services, at the address set forth in § 171.4, or faxed to (202) 261-8571. The time limit for a response to an appeal is 20 working days, which may be extended in unusual circumstances, as defined in § 171.11(b). The time limit begins to run on the day the appeal is received by IPS. Appeals from denials of requests for expedited processing and for a fee reduction or waiver must be postmarked within 30 calendar days of the date of the Department’s denial letter. See §§ 171.11(f)(4) (expedited processing appeals) and 171.16(e) (fee reduction/waiver appeals) of this subpart. See also § 171.4 for address information.
(b) Requesters may decide to litigate a request that is in the appeal stage. Once a summons and complaint is received by the Department in connection with a particular request, the Department will administratively close any open appeal regarding such request.
(c) Requesters should submit an administrative appeal, to IPS at the above address, of any denial, in whole or in part, of a request for access to FSGB records under the FOIA. IPS will assign a tracking number to the appeal and forward it to the FSGB, which is an independent body, for adjudication.
(d) Decisions on appeals. A decision on an appeal must be made in writing. A decision that upholds the Department’s determination will contain a statement that identifies the reasons for the affirmance, including any FOIA and Privacy Act exemptions applied. The decision will provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the mediation services offered by the Office of Government Information Services of the National Archives and Records Administration (OGIS) as a non-exclusive alternative to litigation. If the Department’s decision is remanded or modified on appeal, the requester will be notified of that determination in writing. The Department will thereafter further process the request in accordance with that appeal determination and respond directly to the requester. When the Department of State engages in the mediation services offered by OGIS, it will work in good faith as a partner to the mediation process in an attempt to resolve the dispute. The Department reserves its right to decide on a case-by-case basis whether to enter into formal mediation offered by OGIS.
§ 171.14 Fees to be charged.
(a) In general. The Department shall charge fees that recoup the full allowable direct costs it incurs in processing a FOIA request in accordance with the provisions of this part and with the OMB Guidelines. It shall use the most efficient and least costly methods to comply with requests for records made under the FOIA. The Department 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 $25.00. The Department shall attempt to notify the requester if fees are estimated to exceed $25.00. Such notification shall include a breakdown of the fees for search, review, or duplication, unless the requester has expressed a willingness to pay fees as high as those anticipated.
(b) Definitions. The following definitions apply for purposes of this section:
(1) Direct costs are those costs the Department incurs in searching for, duplicating, and, in the case of commercial use requests, reviewing records in response to a FOIA request. The term does not include overhead expenses.
(2) Search costs are those costs the Department incurs in looking for, identifying, and retrieving material, in paper or electronic form, that is potentially responsive to a request. The Department shall attempt to ensure that searching for material is done in the most efficient and least expensive manner so as to minimize costs for both the Department and the requester. The Department may charge for time spent searching even if it does not locate any responsive record, or if it withholds the record(s) located as entirely exempt from disclosure. Further information on current search fees is available by visiting the FOIA home page at www.foia.state.gov and reviewing the Information Access Guide.
(3) Duplication costs are those costs the Department incurs in reproducing a requested record in a form appropriate for release in response to a FOIA request.
(4) Review costs are those costs the Department incurs in examining a record to determine whether and to what extent the record is responsive to a FOIA request and the extent to which it may be disclosed to the requester, including the page-by-page or line-by-line review of material within records. It does not include the costs of resolving general legal or policy issues that may be raised by a request.
(5) Categories of requesters. ”Requester fee category” means one of the categories in which a requester will be placed for the purpose of determining whether the requester will be charged fees for search, review, and duplication. “Fee waiver” (see § 171.16) means the waiver or reduction of processing fees that may be granted if the requester can demonstrate that certain statutory standards are satisfied. There are three categories of requesters: commercial use requesters, distinct subcategories of non-commercial requesters (educational and non-commercial scientific institutions, representatives of the news media), and all other requesters.
(i) A commercial use requester is a person or entity who seeks information for a use or purpose that furthers the commercial, trade, or profit interest of the requester or the person on whose behalf the request is made. In determining whether a requester belongs within this category, the Department will look at the way in which the requester intends to use the information requested. Commercial use requesters will be charged for search time, review time, and duplication in connection with processing their requests.
(ii) Distinct subcategories of non-commercial requesters. (A) An educational institution requester is a person or entity who submits a request under the authority of a school that operates a program of scholarly research. A requester in this category must show that the records are not sought for a commercial use and are not intended to promote any particular product or industry, but rather are sought to further scholarly research of the institution. A signed letter from the chairperson on an institution’s letterhead is presumed to be from an educational institution. A student seeking inclusion in this subcategory who makes a request in furtherance of the completion of a course of instruction is carrying out an individual research goal and does not qualify as an educational institution requester. See a summary of the OMB Fee Guidelines at: https://www.justice.gov/oip/foia-guide-2004-edition-fees-and-fee-waivers. Educational institution requesters will not be charged for search and review time, and the first 100 pages of duplication will be provided free of charge.
(1) Example 1. A request from a professor of geology at a university for records relating to soil erosion, written on letterhead of the Department of Geology, would be presumed to be from an educational institution.
(2) Example 2. A request from the same professor of geology seeking drug information from the Food and Drug Administration in furtherance of a murder mystery he is writing would not be presumed to be an institutional request, regardless of whether it was written on institutional stationery.
(B) A non-commercial scientific institution requester is a person or entity that submits a request on behalf of an institution that is not operated on a “commercial” basis 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. Non-commercial scientific institution requesters will not be charged for search and review time, and the first 100 pages of duplication will be provided free of charge.
(C) 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. News media 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 to the general public. “Freelance” journalists shall be regarded as working for a news media entity if they can demonstrate a solid basis for expecting publication through that entity, such as by a contract or past publication record. These examples are not all-inclusive. A representative of the news media will not be charged for search and review time, and the first 100 pages of duplication will be provided free of charge.
(iii) All other requesters are persons or entities that do not fall into the requester categories defined above. All other requesters will be provided the first two hours of search time and the first 100 pages of duplication free of charge, and will not be charged for review time.
(c) Searches for responsive records. The Department charges the estimated direct cost of each search based on the average current salary rates of the categories of personnel doing the searches. Updated search and review fees are available at www.foia.state.gov
(d) Manual (paper) and computer searches. For both manual and computer searches, the Department shall charge the estimated direct cost of each search based on the average current salary rates of the categories of personnel doing the searches.
(e) Review of records. Only requesters who are seeking records for commercial use may be charged for time spent reviewing records to determine whether they are responsive, and if so, releasable. Charges may be assessed for the initial review only, i.e., the review undertaken the first time the Department analyzes the applicability of a specific exemption to a particular record or portion of a record
(f) Duplication of records. Paper copies of records shall be duplicated at a rate of $0.15 per page. Other charges may apply depending on the type of production required. Where paper documents must be scanned in order to comply with a requester’s preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials. For other forms of duplication, the Department shall charge the direct costs.
(g) Other charges. The Department shall recover the full costs of providing services such as those below:
(1) Sending records by special methods such as express mail, overnight courier, etc.
(2) Providing records to a requester in a special format.
(3) Providing duplicate copies of records already produced to the same requester in response to the same request.
(h) Payment. Fees shall be paid by either 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 Office of Information Programs and Services, U.S. Department of State, State Annex 2 (SA-2), 515 22nd Street NW., Washington, DC, 20522-8100. A receipt for fees paid will be given upon request.
(i) When certain fees are not charged. The Department shall not charge search fees (or in the case of educational and non-commercial scientific institutions or representatives of the news media, duplication fees) when the Department fails to comply with any time limit under 5 U.S.C. 552(a)(6), unless unusual circumstances (see § 171.11(b)) or exceptional circumstances exist. Exceptional circumstances cannot include a delay that results from a predictable agency workload of requests unless the agency demonstrates reasonable progress in reducing its backlog of pending requests. See 5 U.S.C. 552(a)(6)(C). Apart from the stated provisions regarding waiver or reduction of fees, see § 171.16, the Department retains the administrative discretion to not assess fees if it is in the best interests of the government to do so.
§ 171.15 Miscellaneous fee provisions.
(a) Charging interest. The Department shall begin assessing interest charges on an unpaid bill starting on the 31st day following the day on which the bill was sent. The fact that a fee has been received by the Department within the thirty-day grace period, even if not processed, shall stay the accrual of interest. Interest will be at the rate prescribed in 31 U.S.C. 3717 and shall accrue from the date of the billing.
(b) Charges for unsuccessful search or if records are withheld. The Department may assess charges for time spent searching, even if it fails to locate the records or if the records located are determined to be exempt from disclosure.
(c) Advance payment. The Department may not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request, unless:
(1) It estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250. In such a case, the Department shall notify the requester of the likely cost and obtain satisfactory assurance of full payment where the requester has a history of prompt payment of FOIA fees, or shall, in its discretion, 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 an assessed fee within 30 days of the date of its billing. In such a case, the Department shall require the requester to pay the full amount previously owed plus any applicable interest and to make an advance payment of the full amount of the estimated fee before the Department begins to process a new or pending request from that requester.
(3) If a requester has failed to pay a fee properly charged by another U.S. government agency in a FOIA case, the Department may require proof that such fee has been paid before processing a new or pending request from that requester.
(4) When the Department acts under paragraph (c)(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, plus permissible extensions of these time limits), will begin only after the Department has received fee payments described in paragraphs (c)(1) and (2) of this section.
(d) Aggregating requests. When the Department reasonably believes that a requester, or a group of requesters acting in concert, has submitted multiple requests involving related matters solely to avoid payment of fees, the Department may aggregate those requests for purposes of assessing processing fees.
(e) Effect of the Debt Collection Act of 1982, as amended. The Department shall comply with provisions of the Debt Collection Act, including disclosure to consumer reporting agencies and use of collection agencies, where appropriate, to effect repayment.
(f) Itemization of charges. The Department shall, where possible, provide the requester with a breakdown of fees charged indicating how much of the total charge is for search, review, and/or duplication for each specific request.
§ 171.16 Waiver or reduction of fees.
(a) Fees otherwise chargeable in connection with a request for disclosure of a record shall be waived or reduced where the requester seeks a waiver or reduction of fees and the Department determines, in its discretion, that disclosure 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.
(1) In deciding whether disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of operations or activities of the government, the Department shall consider all four of the following factors:
(i) The subject of the request must concern identifiable operations or activities of the Federal Government, with a connection that is direct and clear, not remote or attenuated.
(ii) Disclosure of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not contribute to such understanding where nothing new would be added to the public’s understanding.
(iii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester’s expertise in the subject area as well as the requester’s ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration.
(iv) The public’s understanding of the subject in question must be enhanced by the disclosure to a significant extent.
(2) In order to determine whether disclosure of the information is not primarily in the commercial interest of the requester, the Department will consider the following factors:
(i) The existence and magnitude of a commercial interest, i.e., whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so,
(ii) The primary interest in disclosure, i.e., whether disclosure is primarily in the commercial interest of the requester.
(iii) Requests for purposes of writing a book, an article, or other publication will not be considered a commercial purpose.
(b) The Department may refuse to consider waiver or reduction of fees for requesters from whom unpaid fees remain owed to the Department for another FOIA request.
(c) Where only some of the records to be released satisfy the requirements for a waiver or reduction of fees, a waiver or reduction shall be granted for only those records.
(d) Requests for a waiver or reduction of fees should be made when the request is first submitted to the Department and should address the criteria referenced above. 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 shall be required to pay any costs incurred up to the date the fee waiver request was received.
(e) The Division Chief of the Requester Liaison Division in IPS will issue all initial decisions on whether to grant or deny requests for a fee waiver. A decision to refuse to waive or reduce fees may be appealed to the Director of IPS within 30 calendar days of the date of the Department’s refusal letter. See § 171.4 for address information. A decision in writing on the appeal shall be issued within 20 working days of the receipt of the appeal.
§ 171.17 Resolving disputes.
The Office of Government Information Services (OGIS) in the National Archives and Records Administration is charged with offering mediation services to resolve disputes between persons making FOIA requests and Federal agencies as a non-exclusive alternative to litigation. Additionally, the FOIA directs the Department’s FOIA Public Liaison to assist in the resolution of disputes. The Department will inform requesters in its agency appeal response letter of services offered by OGIS and the FOIA Public Liaison. Requesters may reach the Department’s FOIA Public Liaison at Office of Information Programs and Services, A/GIS/IPS/PP/LA, U.S. Department of State, Washington, DC 20522-8100, or at (202) 261-8484. Requesters may contact OGIS at Office of Government Information Services (OGIS), National Archives and Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001; at [email protected]; and at (202) 741-5770, or toll-free at (877) 684-6448.
§ 171.18 Preservation of records
The Department shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or the General Records Schedule 14 of the National Archives and Records Administration. Records shall not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
Subpart C – Privacy Act Provisions
§ 171.20 Purpose and scope.
This subpart contains the rules that the Department follows under the Privacy Act of 1974 (PA), 5 U.S.C. 552a, as amended. These rules should be read together with the text of the statute, which provides additional information about records maintained on individuals. The rules in this subpart apply to all records in systems of records maintained by the Department that are retrieved by an individual’s name or personal identifier. They describe the procedures by which individuals may request access to records about themselves, request amendment or correction of those records, and request an accounting of disclosures of those records by the Department. If any records retrieved pursuant to an access request under the PA are found to be exempt from access under that Act, they will be processed for possible disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. No fees shall be charged for access to or amendment of PA records.
§ 171.21 Definitions.
As used in this subpart, the following definitions shall apply:
(a) Individual means a citizen or a legal permanent resident alien (LPR) of the United States.
(b) Maintain includes maintain, collect, use, or disseminate.
(c) Record means any item, collection, or grouping of information about an individual that is maintained by the Department 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 photograph.
(d) System of records means a group of any records under the control of the Department from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to an individual.
§ 171.22 Request for access to records.
(a) In general. Requests for access to records under the PA must be made in writing and mailed to the Office of Information Programs and Service, the Office of Passport Services, or the Office of Inspector General at the addresses given in § 171.4. The Director of the Office of Information Programs and Services (IPS) is responsible for acting on all PA requests for Department records except for requests received directly by the Office of Inspector General, which processes its own requests for information, and the Office of Passport Services within the Bureau of Consular Affairs which receives directly and processes its own PA requests for information as described in PA System of Record Notice 26. Once received by IPS, all processing of PA requests coming under the jurisdiction of the Bureau of Consular Affairs/Visa Services Office and Overseas Citizens Services, the Bureau of Diplomatic Security, the Bureau of Human Resources, the Office of Medical Services, and the Foreign Service Grievance Board (FSGB) are handled by those bureaus or offices instead of IPS.
(b) Description of records sought. Requests for access should describe the requested record(s) in sufficient detail to permit identification of the record(s). At a minimum, requests should include the individual’s full name (including maiden name, if appropriate) and any other names used, current complete mailing address, and date and place of birth (city, state and country). Helpful data includes the approximate time period of the record and the circumstances that give the individual reason to believe that the Department maintains a record under the individual’s name or personal identifier, and, if known, the system of records in which the record is maintained. In certain instances, it may be necessary for the Department to request additional information from the requester, either to ensure a full search, or to ensure that a record retrieved does in fact pertain to the individual.
(c) Verification of personal identity. The Department will require reasonable identification of individuals requesting records about themselves under the PA’s access provisions to ensure that records are only accessed by the proper persons. Requesters must state their full name, current address, citizenship or legal permanent resident alien status, and date and place of birth (city, state, and country). The request must be signed, and the requester’s signature must be either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746. If the requester seeks records under another name the requester has used, a statement, under penalty of perjury, that the requester has also used the other name must be included. Requesters seeking access to copies of the Passport Office’s passport records must meet the requirements in paragraph (d) of this section.
(d) Special requirements for passport records. Given the sensitive nature of passport records and their use, requesters seeking access to copies of the Passport Office’s passport records under the PA must submit a letter that is either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746, which includes the full name at birth and any subsequent name changes of the individual whose records are being requested (if submitting the request on behalf of a minor, provide the representative’s full name as well); the date and place of birth of the individual whose records are being requested; the requester’s current mailing address; and, if available, daytime telephone number and email address; the date or estimated date the passport(s) was issued; the passport number of the person whose records are being sought, if known; and any other information that will help to locate the records. The requester must also include a clear copy of both sides of the requester’s valid Government-issued photo identification, e.g., a driver’s license.
(e) Authorized third party access. The Department shall process all properly authorized third party requests, as described in this section, under the PA. In the absence of proper authorization from the individual to whom the records pertain, the Department will process third party requests under the FOIA. The Department’s form, DS-4240, may be used to certify identity and provide third party authorization.
(1) Parents and guardians of minor children. Upon presentation of acceptable documentation of the parental or guardian relationship, a parent or guardian of a U.S. citizen or LPR minor (an unmarried person under the age of 18) may, on behalf of the minor, request records under the PA pertaining to the minor. In any case, U.S. citizen or LPR minors may request such records on their own behalf.
(2) Guardians. A guardian of an individual who has been declared by a court to be incompetent may act for and on behalf of the incompetent individual upon presentation of appropriate documentation of the guardian relationship.
(3) Authorized representatives or designees. When an individual wishes to authorize another person or persons access to his or her records, the individual may submit, in addition to the identity verification information described in paragraph (c) or paragraph (d) of this section if the request is for passport records, a signed statement from the individual to whom the records pertain, either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746, giving the Department authorization to release records about the individual to the third party. The designated third party must submit identity verification information described in paragraph c. Third party requesters seeking access to copies of the Passport Office’s records must submit a clear copy of both sides of a valid Government-issued photo identification (e.g., a driver’s license) in addition to the other information described above.
(f) Referrals and consultations. If the Department determines that records retrieved as responsive to the request were created by another agency, it ordinarily will refer the records to the originating agency for direct response to the requester. If the Department determines that Department records retrieved as responsive to the request are of interest to another agency, it may consult with the other agency before responding to the request. The Department may make agreements with other agencies to eliminate the need for consultations or referrals for particular types of records.
(g) Records relating to civil actions. Nothing in this subpart entitles an individual to access to any information compiled in reasonable anticipation of a civil action or proceeding.
(h) Time limits. The Department will acknowledge the request promptly and furnish the requested information as soon as possible thereafter.
§ 171.23 Request to amend or correct records.
(a) An individual has the right to request that the Department amend a record pertaining to the individual that the individual believes is not accurate, relevant, timely, or complete.
(b) Requests to amend records must be in writing and mailed or delivered to the Office of Information Programs and Services at the address given in § 171.4, with ATTENTION: PRIVACY ACT AMENDMENT REQUEST written on the envelope. IPS will coordinate the review of the request with the appropriate offices of the Department. The Department will require verification of personal identity as provided in section 171.22(c) before it will initiate action to amend a record. Amendment requests should contain, at a minimum, identifying information needed to locate the record in question, a description of the specific correction requested, and an explanation of why the existing record is not accurate, relevant, timely, or complete. The request must be signed, and the requester’s signature must be either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746. The requester should submit as much pertinent documentation, other information, and explanation as possible to support the request for amendment.
(c) All requests for amendments to records shall be acknowledged within 10 working days.
(d) In reviewing a record in response to a request to amend, the Department shall review the record to determine if it is accurate, relevant, timely, and complete.
(e) If the Department agrees with an individual’s request to amend a record, it shall:
(1) Advise the individual in writing of its decision;
(2) Amend the record accordingly; and
(3) If an accounting of disclosure has been made, advise all previous recipients of the record of the amendment and its substance.
(f) If the Department denies an individual’s request to amend a record, it shall advise the individual in writing of its decision and the reason for the refusal, and the procedures for the individual to request further review. See § 171.25.
§ 171.24 Request for an accounting of record disclosures.
(a) How made. Except where accountings of disclosures are not required to be kept, as set forth in paragraph (b) of this section, or where accountings of disclosures do not need to be provided to a requesting individual pursuant to 5 U.S.C. 552a(c)(3), an individual has a right to request an accounting of any disclosure that the Department has made to another person, organization, or agency of any record about an individual. This accounting shall contain the date, nature, and purpose of each disclosure as well as the name and address of the recipient of the disclosure. Any request for accounting should identify each particular record in question and may be made by writing directly to the Office of Information Programs and Services at the address given in § 171.4.
(b) Where accountings not required. The Department is not required to keep an accounting of disclosures in the case of:
(1) Disclosures made to employees within the Department who have a need for the record in the performance of their duties; and
(2) Disclosures required under the FOIA.
§ 171.25 Appeals from denials of PA amendment requests.
(a) If the Department denies a request for amendment of such records, the requester shall be informed of the reason for the denial and of the right to appeal the denial to the Appeals Review Panel. Any such appeal must be postmarked within 60 working days of the date of the Department’s denial letter and sent to: Appeals Officer, Appeals Review Panel, Office of Information Programs and Services, at the address set forth in § 171.4.
(b) Appellants should submit an administrative appeal of any denial, in whole or in part, of a request for access to FSGB records under the PA to IPS at the above address. IPS will assign a tracking number to the appeal and forward it to the FSGB, which is an independent body, for adjudication.
(c) The Appeals Review Panel will decide appeals from denials of PA amendment requests within 30 business days, unless the Panel extends that period for good cause shown, from the date when it is received by the Panel.
(d) Appeals Review Panel Decisions will be made in writing, and appellants will receive notification of the decision. A reversal will result in reprocessing of the request in accordance with that decision. An affirmance will include a brief statement of the reason for the affirmance and will inform the appellant that the decision of the Panel represents the final decision of the Department and of the right to seek judicial review of the Panel’s decision, when applicable.
(e) If the Panel’s decision is that a record shall be amended in accordance with the appellant’s request, the Chairman shall direct the office responsible for the record to amend the record, advise all previous recipients of the record of the amendment and its substance (if an accounting of previous disclosures has been made), and so advise the individual in writing.
(f) If the Panel’s decision is that the amendment request is denied, in addition to the notification required by paragraph (d) of this section, the Chairman shall advise the appellant:
(1) Of the right to file a concise Statement of Disagreement stating the reasons for disagreement with the decision of the Department;
(2) Of the procedures for filing the Statement of Disagreement;
(3) That any Statement of Disagreement that is filed will be made available to anyone to whom the record is subsequently disclosed, together with, at the discretion of the Department, a brief statement by the Department summarizing its reasons for refusing to amend the record;
(4) That prior recipients of the disputed record will be provided a copy of any statement of disagreement, to the extent that an accounting of disclosures was maintained.
(g) If the appellant files a Statement of Disagreement under paragraph (f) of this section, the Department will clearly annotate the record so that the fact that the record is disputed is apparent to anyone who may subsequently access the record. When the disputed record is subsequently disclosed, the Department will note the dispute and provide a copy of the Statement of Disagreement. The Department may also include a brief summary of the reasons for not amending the record. Copies of the Department’s statement shall be treated as part of the individual’s record for granting access; however, it will not be subject to amendment by an individual under this part.
§ 171.26 Exemptions.
Systems of records maintained by the Department are authorized to be exempt from certain provisions of the PA under both general and specific exemptions set forth in the Act. In utilizing these exemptions, the Department is exempting only those portions of systems that are necessary for the proper functioning of the Department and that are consistent with the PA. Where compliance would not interfere with or adversely affect the law enforcement process, and/or where it may be appropriate to permit individuals to contest the accuracy of the information collected, the applicable exemption may be waived, either partially or totally, by the Department or the OIG, in the sole discretion of the Department or the OIG, as appropriate. Records exempt under 5 U.S.C. 552a(j) or (k) by the originator of the record remain exempt if subsequently incorporated into any Department system of records, provided the reason for the exemption remains valid and necessary.
(a) General exemptions. If exempt records are the subject of an access request, the Department will advise the requester of their existence and of the name and address of the source agency, unless that information is itself exempt from disclosure.
(1) Individuals may not have access to records maintained by the Department that are maintained or originated by the Central Intelligence Agency under 5 U.S.C. 552a(j)(1).
(2) In accordance with 5 U.S.C. 552a(j)(2), individuals may not have access to records maintained or originated by an agency or component thereof that performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of:
(i) Information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status;
(ii) Information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or
(iii) Reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision. The reason for invoking these exemptions is to ensure effective criminal law enforcement processes. Records maintained by the Department in the following systems of records are exempt from all of the provisions of the PA except paragraphs (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (e)(7), (e)(9), (e)(10), and (e)(11), and (i), to the extent to which they meet the criteria of section (j)(2) of 5 U.S.C. 552a. The names of the systems correspond to those published in the
Email Archive Management Records, STATE-01.
Office of Inspector General Investigation Management System. STATE-53.
Information Access Program Records. STATE-35.
Risk Analysis and Management. STATE-78.
Security Records. STATE-36.
(b) Specific exemptions. Portions of the following systems of records are exempt from 5 U.S.C. 552a(c)(3), (d), (e)(1), and (4), (G), (H), and (I), and (f). The names of the systems correspond to those published in the
(1) Exempt under 5 U.S.C. 552a(k)(1). Records contained within the following systems of records are exempt under this section to the extent that they are subject to the provisions of 5 U.S.C. 552(b)(1).
Board of Appellate Review Records. STATE-02.
Congressional Correspondence. STATE-43.
Congressional Travel Records. STATE-44.
Coordinator for the Combating of Terrorism Records. STATE-06.
Email Archive Management Records. STATE-01.
External Research Records. STATE-10.
Extradition Records. STATE-11.
Family Advocacy Case Records. STATE-75.
Foreign Assistance Inspection Records. STATE-48.
Human Resources Records. STATE-31.
Information Access Programs Records. STATE-35.
Intelligence and Research Records. STATE-15.
International Organizations Records. STATE-17.
Law of the Sea Records. STATE-19.
Legal Case Management Records. STATE-21.
Munitions Control Records. STATE-42.
Overseas Citizens Services Records. STATE-05.
Passport Records. STATE-26.
Personality Cross Reference Index to the Secretariat Automated Data Index. STATE-28.
Personality Index to the Central Foreign Policy Records. STATE-29.
Personnel Payroll Records. STATE-30.
Office of Inspector General Investigation Management System. STATE-53.
Records of the Office of the Assistant Legal Adviser for International Claims and Investment Disputes. STATE-54.
Risk Analysis and Management Records. STATE-78.
Rover Records. STATE-41.
Records of Domestic Accounts Receivable. STATE-23.
Records of the Office of White House Liaison. STATE-34.
Refugee Records. STATE-59.
Security Records. STATE-36.
Visa Records. STATE-39.
(2) Exempt under 5 U.S.C. 552a(k)(2). Records contained within the following systems of records are exempt under this section to the extent that they consist of investigatory material compiled for law enforcement purposes, subject to the limitations set forth in 5 U.S.C. 552a(k)(2).
Board of Appellate Review Records. STATE-02.
Coordinator for the Combating of Terrorism Records. STATE-06.
Email Archive Management Records. STATE-01.
Extradition Records. STATE-11.
Family Advocacy Case Records. STATE-75
Foreign Assistance Inspection Records. STATE-48.
Garnishment of Wages Records. STATE-61.
Information Access Program Records. STATE-35.
Intelligence and Research Records. STATE-15.
Munitions Control Records. STATE-42.
Overseas Citizens Services Records. STATE-05.
Passport Records. STATE-26.
Personality Cross Reference Index to the Secretariat Automated Data Index. STATE-28.
Personality Index to the Central Foreign Policy Records. STATE-29.
Office of Foreign Missions Records, STATE-81.
Office of Inspector General Investigation Management System. STATE-53.
Risk Analysis and Management Records. STATE-78.
Security Records. STATE-36.
Visa Records. STATE-39.
(3) Exempt under 5 U.S.C. 552a(k)(3). Records contained within the following systems of records are exempt under this section to the extent that they are maintained in connection with providing protective services pursuant to 18 U.S.C. 3056.
Email Archive Management Records. STATE-01.
Extradition Records. STATE-11.
Information Access Programs Records. STATE-35.
Intelligence and Research Records. STATE-15.
Overseas Citizens Services Records. STATE-05.
Passport Records. STATE-26.
Personality Cross-Reference Index to the Secretariat Automated Data Index. STATE-28.
Personality Index to the Central Foreign Policy Records. STATE-29.
Security Records. STATE-36.
Visa Records. STATE-39.
(4) Exempt under 5 U.S.C. 552a(k)(4). Records contained within the following systems of records are exempt under this section to the extent that they are required by statute to be maintained and are used solely as statistical records.
Email Archive Management Records. STATE-01.
Foreign Service Institute Records. STATE-14.
Human Resources Records. STATE-31.
Information Access Programs Records. STATE-35.
Overseas Citizens Services Records, STATE-05
Personnel Payroll Records. STATE-30.
Security Records. STATE-36.
(5) Exempt under 5 U.S.C. 552a(k)(5). Records contained within the following systems of records are exempt under this section to the extent that they consist of investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that disclosure of such material would reveal the identity of a confidential informant.
Email Archive Management Records. STATE-01.
Records Maintained by the Office of Civil Rights. STATE-09.
Foreign Assistance Inspection Records. STATE-48.
Foreign Service Grievance Board Records. STATE-13.
Human Resources Records. STATE-31.
Information Access Programs Records. STATE-35.
Legal Adviser Attorney Employment Application Records. STATE-20.
Overseas Citizens Services Records. STATE-25.
Personality Cross-Reference Index to the Secretariat Automated Data Index. STATE-28.
Office of Inspector General Investigation Management System. STATE-53.
Records of the Office of White House Liaison. STATE-34.
Risk Analysis and Management Records. STATE-78.
Rover Records. STATE-41.
Security Records. STATE-36.
Senior Personnel Appointments Records. STATE-47.
(6) Exempt under 5 U.S.C. 552a(k)(6). Records contained within the following systems of records are exempt under this section to the extent that they consist of testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process.
Email Archive Management Records. STATE-01.
Foreign Service Institute Records. STATE-14.
Human Resources Records. STATE-31.
Information Access Programs Records. STATE-35.
Records Maintained by the Office of Civil Rights. STATE-09
Security Records. STATE-36.
(7) Exempt under 5 U.S.C. 552a(k)(7). Records contained within the following systems of records are exempt under this section to the extent that they consist of evaluation material used to determine potential for promotion in the armed services, but only to the extent that such disclosure would reveal the identity of a confidential informant.
Email Archive Management Records. STATE-01.
Overseas Citizens Services Records. STATE-25.
Human Resources Records. STATE-31.
Information Access Programs Records. STATE-35.
Personality Cross-Reference Index to the Secretariat Automated Data Index. STATE-28.
Personality Index to the Central Foreign Policy Records. STATE-29.
Subpart D – Process To Request Public Financial Disclosure Reports
§ 171.30 Purpose and scope.
This subpart sets forth the process by which persons may request access to public financial disclosure reports filed with the Department in accordance with sections 101 and 103(l) of the Ethics in Government Act of 1978, 5 U.S.C. app. 101 and 103(l), as amended. The retention, public availability, and improper use of these reports are governed by 5 U.S.C. app. 105 and 5 CFR 2634.603.
§ 171.31 Requests.
Requests for access to public financial disclosure reports filed with the Department should be made by submitting a completed Office of Government Ethics request form, OGE Form 201, to [email protected] or the Office of the Assistant Legal Adviser for Ethics and Financial Disclosure, U.S. Department of State, 2201 C Street NW., Washington, DC 20520. The OGE Form 201 may be obtained by visiting http://www.oge.gov or writing to the address above.
PART 172 – SERVICE OF PROCESS; PRODUCTION OR DISCLOSURE OF OFFICIAL INFORMATION IN RESPONSE TO COURT ORDERS, SUBPOENAS, NOTICES OF DEPOSITIONS, REQUESTS FOR ADMISSIONS, INTERROGATORIES, OR SIMILAR REQUESTS OR DEMANDS IN CONNECTION WITH FEDERAL OR STATE LITIGATION; EXPERT TESTIMONY
§ 172.1 Purpose and scope; definitions.
(a) This part sets forth the procedures to be followed with respect to:
(1) Service of summonses and complaints or other requests or demands directed to the Department of State (Department) or to any Department employee or former employee in connection with federal or state litigation arising out of or involving the performance of official activities of the Department; and
(2) The oral or written disclosure, in response to subpoenas, orders, or other requests or demands of federal or state judicial or quasi-judicial authority (collectively, “demands”), whether civil or criminal in nature, or in response to requests for depositions, affidavits, admissions, responses to interrogatories, document production, or other litigation-related matters, pursuant to the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, or applicable state rules (collectively, “requests”), of any material contained in the files of the Department, any information relating to material contained in the files of the Department, or any information acquired while the subject of the demand or request is or was an employee of the Department as part of the performance of that person’s duties or by virtue of that person’s official status.
(b) For purposes of this part, and except as the Department may otherwise determine in a particular case, the term employee includes the Secretary and former Secretaries of State, and all employees and former employees of the Department of State or other federal agencies who are or were appointed by, or subject to the supervision, jurisdiction, or control of the Secretary of State or his Chiefs of Mission, whether residing or working in the United States or abroad, including United States nationals, foreign nationals, and contractors.
(c) For purposes of this part, the term litigation encompasses all pre-trial, trial, and post-trial stages of all judicial or administrative actions, hearings, investigations, or similar proceedings before courts, commissions, boards (including the Board of Appellate Review), or other judicial or quasi-judicial bodies or tribunals, whether criminal, civil, or administrative in nature. This part governs, inter alia, responses to discovery requests, depositions, and other pre-trial, trial, or post-trial proceedings, as well as responses to informal requests by attorneys or others in situations involving litigation. However, this part shall not apply to any claims by Department of State employees (present or former), or applicants for Department employment, for which jurisdiction resides with the U.S. Equal Employment Opportunity Commission; the U.S. Merit Systems Protection Board; the Office of Special Counsel; the Federal Labor Relations Authority; the Foreign Service Labor Relations Board; the Foreign Service Grievance Board; or a labor arbitrator operating under a collective bargaining agreement between the Department and a labor organization representing Department employees; or their successor agencies or entities.
(d) For purposes of this part, official information means all information of any kind, however stored, that is in the custody and control of the Department, relates to information in the custody and control of the Department, or was acquired by Department employees as part of their official duties or because of their official status within the Department while such individuals were employed by or served on behalf of the Department.
(e) Nothing in this part affects disclosure of information under the Freedom of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5 U.S.C. 552a, Executive Order 13526 (3 CFR, 2009 Comp., p. 298), the Government in the Sunshine Act, 5 U.S.C. 552b, the Department’s implementing regulations in 22 CFR part 171 or pursuant to congressional subpoena. Nothing in this part otherwise permits disclosure of information by the Department or its employees except as provided by statute or other applicable law.
(f) This part is intended only to inform the public about Department procedures concerning the service of process and responses to demands or requests and is not intended to and does not create, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable at law by a party against the Department or the United States.
(g) Nothing in this part affects:
(1) The disclosure of information during the course of legal proceedings in non-United States courts, commissions, boards, or other judicial or quasi-judicial bodies or tribunals; or
(2) The rules and procedures, under applicable U.S. law and international conventions, governing diplomatic and consular immunity.
(h) Nothing in this part affects the disclosure of official information to other federal agencies or Department of Justice attorneys in connection with litigation conducted on behalf or in defense of the United States, its agencies, officers, and employees, or to federal, state, local, or foreign prosecuting and law enforcement authorities in conjunction with criminal law enforcement investigations, prosecutions, or other proceedings, e.g., extradition, deportation.
§ 172.2 Service of summonses and complaints.
(a) Only the Executive Office of the Office of the Legal Adviser (L/H-EX) is authorized to receive and accept summonses or complaints sought to be served upon the Department or Department employees. All such documents should be delivered or addressed to: The Executive Office, Office of the Legal Adviser, Suite 5.600, 600 19th Street NW., Washington DC 20522. (Note that the suite number is 5.600.)
(b) In the event any summons or complaint described in § 172.1(a) is delivered to an employee of the Department other than in the manner specified in this part, such attempted service shall be ineffective, and the recipient thereof shall either decline to accept the proffered service or return such document under cover of a written communication which directs the person attempting to make service to the procedures set forth herein.
(c) Except as otherwise provided §§ 172.2(d) and 172.3(c), the Department is not an authorized agent for service of process with respect to civil litigation against Department employees purely in their personal, non-official capacity. Copies of summonses or complaints directed to Department employees in connection with legal proceedings arising out of the performance of official duties may, however, be served upon L/H-EX.
(d) Although the Department is not an agent for the service of process upon its employees with respect to purely personal, non-official litigation, the Department recognizes that its employees stationed overseas should not use their official positions to evade their personal obligations and will, therefore, counsel and encourage Department employees to accept service of process in appropriate cases, and will waive applicable diplomatic or consular privileges and immunities when the Department determines that it is in the interest of the United States to do so.
(e) Documents for which L/H-EX accepts service in official capacity only shall be stamped “Service Accepted in Official Capacity Only”. Acceptance of service shall not constitute an admission or waiver with respect to jurisdiction, propriety of service, improper venue, or any other defense in law or equity available under the laws of rules applicable for the service of process.
§ 172.3 Service of subpoenas, court orders, and other demands or requests for official information or action.
(a) Except in cases in which the Department is represented by legal counsel who have entered an appearance or otherwise given notice of their representation, only L/EX is authorized to receive and accept subpoenas, or other demands or requests directed to the Department, or any component thereof, or its employees, or former employees, whether civil or criminal nature, for:
(1) Material, including documents, contained in the files of the Department;
(2) Information, including testimony, affidavits, declarations, admissions, responses to interrogatories, or informal statements, relating to material contained in the files of the Department or which any Department employee acquired in the course and scope of the performance of his official duties;
(3) Garnishment or attachment of compensation of current or former employees; or
(4) The performance or non-performance of any official Department duty.
(b) In the event that any subpoena, demand, or request is sought to be delivered to a Department employee (including former employees) other than in the manner prescribed in paragraph (a) of this section, such attempted service shall be ineffective. Such employee shall, after consultation with the Office of the Legal Adviser, decline to accept the subpoena, demand or request or shall return them to the server under cover of a written communication referring to the procedures prescribed in this part.
(c) Except as otherwise provided in this part, the Department is not an agent for service, or otherwise authorized to accept on behalf of its employees any subpoenas, show-cause orders, or similar compulsory process of federal or state courts, or requests from private individuals or attorneys, which are not related to the employees’ official duties except upon the express, written authorization of the individual Department employee to whom such demand or request is directed.
(d) Acceptance of such documents by L/EX does not constitute a waiver of any defenses that might otherwise exist with respect to service under the Federal Rules of Civil or Criminal Procedure or other applicable rules.
§ 172.4 Testimony and production of documents prohibited unless approved by appropriate Department officials.
(a) No employee of the Department shall, in response to a demand or request in connection with any litigation, whether criminal or civil, provide oral or written testimony by deposition, declaration, affidavit, or otherwise concerning any information acquired while such person is or was an employee of the Department as part of the performance of that person’s official duties or by virtue of that persons’s official status, unless authorized to do so by the Director General of the Foreign Service and Director of Personnel (M/DGP) or the Legal Adviser (L), or delegates of either, following consultation between the two bureaus, or as authorized in § 172.4(b).
(b) With respect to the official functions of the Passport Office, the Visa Office, and the Office of Citizens Services, the Assistant Secretary of State for Consular Affairs or delegate thereof may, subject to concurrence by the Office of the Legal Adviser, authorize employees to provide oral or written testimony.
(c) No employee shall, in response to a demand or request in connection with any litigation, produce for use at such proceedings any document or any material acquired as part of the performance of that employee’s duties or by virtue of that employee’s official status, unless authorized to do so by the Director General of the Foreign Service and Director of Personnel, the Legal Adviser, or the Assistant Secretary of State for Consular Affairs, or the delegates thereof, as appropriate, following consultations between the concerned bureaus.
§ 172.5 Procedure when testimony or production of documents is sought; general.
(a) If official Department information is sought, through testimony or otherwise, by a request or demand, the party seeking such release or testimony must (except as otherwise required by federal law or authorized by the Office of the Legal Adviser) set forth in writing, and with as much specificity as possible, the nature and relevance of the official information sought. Subject to § 172.7, Department employees may only produce, disclose, release, comment upon, or testify concerning those matters which were specified in writing and properly approved by the appropriate Department official designated in § 172.4. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). The Office of the Legal Adviser may waive this requirement in appropriate circumstances.
(b) To the extent it deems necessary or appropriate, the Department may also require from the party seeking such testimony or documents a plan of all reasonably foreseeable demands, including but not limited to the names of all employees and former employees from whom discovery will be sought, areas of inquiry, expected duration of proceedings requiring oral testimony, and identification of potentially relevant documents.
(c) The appropriate Department official designated in § 172.4 will notify the Department employee and such other persons as circumstances may warrant of its decision regarding compliance with the request or demand.
(d) The Office of the Legal Adviser will consult with the Department of Justice regarding legal representation for Department employees in appropriate cases.
§ 172.6 Procedure when response to demand is required prior to receiving instructions.
(a) If a response to a demand is required before the appropriate Department official designated in § 172.4 renders a decision, the Department will request that either a Department of Justice attorney or a Department attorney designated for the purpose:
(1) Appear with the employee upon whom the demand has been made;
(2) Furnish the court or other authority with a copy of the regulations contained in this part;
(3) Inform the court or other authority that the demand has been, or is being, as the case may be, referred for the prompt consideration of the appropriate Department official; and
(4) Respectfully request the court or authority to stay the demand pending receipt of the requested instructions.
(b) In the event that an immediate demand for production or disclosure is made in circumstances which would preclude the proper designation or appearance of a Department of Justice or Department attorney on the employee’s behalf, the employee shall respectfully request the demanding court or authority for a reasonable stay of proceedings for the purpose of obtaining instructions from the Department.
§ 172.7 Procedure in the event of an adverse ruling.
If the court or other judicial or quasi-judicial authority declines to stay the effect of the demand in response to a request made pursuant to § 172.6, or if the court or other authority rules that the demand must be complied with irrespective of the Department’s instructions not to produce the material or disclose the information sought, the employee upon whom the demand has been made shall respectfully decline to comply with the demand, citing this part and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
§ 172.8 Considerations in determining whether the Department will comply with a demand or request.
(a) In deciding whether to comply with a demand or request, Department officials and attorneys shall consider, among others:
(1) Whether such compliance would be unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rules of procedure governing the case or matter in which the demand arose;
(2) Whether compliance is appropriate under the relevant substantive law concerning privilege or disclosure of information;
(3) The public interest;
(4) The need to conserve the time of Department employees for the conduct of official business;
(5) The need to avoid spending the time and money of the United States for private purposes;
(6) The need to maintain impartiality between private litigants in cases where a substantial government interest is not implicated;
(7) Whether compliance would have an adverse effect on performance by the Department of its mission and duties; and
(8) The need to avoid involving the Department in controversial issues not related to its mission.
(b) Among those demands and requests in response to which compliance will not ordinarily be authorized are those with respect to which, inter alia, any of the following factors exist:
(1) Compliance would violate a statute or a rule of procedure;
(2) Compliance would violate a specific regulation or executive order;
(3) Compliance would reveal information properly classified in the interest of national security;
(4) Compliance would reveal confidential commercial or financial information or trade secrets without the owner’s consent;
(5) Compliance would reveal the internal deliberative processes of the Executive Branch; or
(6) Compliance would potentially impede or prejudice an on-going law enforcement investigation.
§ 172.9 Prohibition on providing expert or opinion testimony.
(a) Except as provided in this section, and subject to 5 CFR 2635.805, Department employees shall not provide opinion or expert testimony based upon information which they acquired in the scope and performance of their official Department duties, except on behalf of the United States or a party represented by the Department of Justice.
(b) Upon a showing by the requestor of exceptional need or unique circumstances and that the anticipated testimony will not be adverse to the interests of the United States, the appropriate Department official designated in § 172.4 may, consistent with 5 CFR 2635.805, in their discretion and with the concurrence of the Office of the Legal Adviser, grant special, written authorization for Department employees to appear and testify as expert witnesses at no expense to the United States.
(c) If, despite the final determination of the appropriate Department official designated in § 172.4, a court of competent jurisdiction or other appropriate authority orders the appearance and expert or opinion testimony of a Department employee, such employee shall immediately inform the Office of the Legal Adviser of such order. If the Office of the Legal Adviser determines that no further legal review of or challenge to the court’s order will be made, the Department employee shall comply with the order. If so directed by the Office of the Legal Adviser, however, the employee shall respectfully decline to testify. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
PART 173 – AVAILABILITY OF PUBLIC DIPLOMACY PROGRAM MATERIAL IN THE UNITED STATES
§ 173.1 Purpose and scope.
This part contains the rules that the Department follows for responding to requests for the release within the United States of public diplomacy program material generated pursuant to the U.S. Information and Educational Exchange Act of 1948, as amended (22 U.S.C. 1431, et seq.; “the Smith-Mundt Act”). It is the Department’s policy to make its program material available on its public Web site or via third-party platforms whenever doing so is consistent with the Department’s mission and all statutory authorities, prohibitions, contractual obligations, principles, and standards. Requests for program material that is not available on the Department’s public Web site or via third-party platforms must be submitted under the Freedom of Information Act (the “FOIA”) pursuant to the FOIA provisions of 22 CFR part 171, subpart B.
§ 173.2 Definitions.
For the purposes of this part,
(a) Program material shall mean information about the United States, its people and policies, intended for foreign audiences abroad, that the Department prepares or assists in preparing using public diplomacy funds and disseminates to foreign audiences outside of the United States pursuant to the Smith-Mundt Act and Section 208 of the Foreign Relations Authorization Act, Fiscal Years 1986 and 1987 (22 U.S.C. 1461-1a), as amended. Program Material includes, but is not limited to, electronic journals, pamphlets, books, maps, posters, videos, presentations, photos, games, curricula and other teaching materials, and certain social media and web-based interactive technology content produced in Washington, DC, as well as such materials and content produced at U.S. embassies abroad.
(b) Request shall mean any attempt to access the Department’s Program Material, including through the Department’s public Web sites and third-party platforms, or through a direct inquiry to a Department official in connection with a speech or other engagement.
(c) Requester shall mean any private person or entity that requests that the Department make Program Material available within the United States.
§ 173.3 Availability of program material.
(a) The Department makes Program Material available to Requesters electronically through Department Web sites and/or various third-party platforms, where such material has been disseminated to audiences abroad. Once Program Material is published, it remains available in digital format until removed or archived by the Department at its discretion (see paragraph (c) of this section). For access to such Program Material, Requesters may visit www.state.gov/r.
(b) As a general matter, Program Material published both electronically and in hard copy will be made available electronically through Department Web sites and/or various third-party platforms, although the Department reserves the right to make Program Material available in hard copy at its sole discretion. To the extent a Requester seeks Program Material that is not made available online through Department Web sites or third-party platforms, such material must be requested under the FOIA pursuant to the procedures outlined at 22 CFR part 171, subpart B.
(c) The Department will remove Program Material from Department and third-party Web sites when it deems such material no longer relevant to the Department’s public diplomacy mission. The Department will also remove Program Material when required by licensing agreements with third-party copyright holders. To the extent a Requester seeks Program Material that has been removed for whatever reason, such material must be requested under the FOIA pursuant to the procedures outlined at 22 CFR part 171, Subpart B.
(d) Once Program Material has been removed from the Department’s Web site or third-party platforms, a determination will be made as to whether it is a permanent Department record under the Department’s applicable Records Disposition Schedule (“RDS”). Permanent records will be transferred in their entirety to the National Archives and Records Administration (“NARA”) according to the RDS; see 36 CFR 1256.98 for information about how to request Department Program Material that has been transferred to NARA. Material designated as “temporary” under the applicable RDS will be destroyed once it has been removed from the Department or third-party sites.
§ 173.4 Terms of use and other compliance.
Requesters and users of Department Web sites, or third-party Web sites containing Program Material, are responsible for complying with the Terms of Use applicable to any such site. Requesters are also solely responsible for complying with any applicable statutes governing the use of such material and securing appropriate licenses for use of such material, if required.
§ 173.5 Fees.
(a) The Department will make Program Material available online (i.e., in digital format) at no cost.
(b) The Department may collect a fee for reimbursement of the reasonable costs incurred to fulfill requests for Program Material not available online. Such requests, including fees applicable thereto, shall be governed by part 171, subpart B of this subchapter.
SUBCHAPTER S – INTERNATIONAL AGREEMENTS
PART 181 – COORDINATION, REPORTING AND PUBLICATION OF INTERNATIONAL AGREEMENTS
§ 181.1 Purpose and application.
(a) The purpose of this part is to implement the provisions of 1 U.S.C. 112a and 112b, popularly known as the Case-Zablocki Act (hereinafter “the Act”), on the reporting to Congress, coordination with the Secretary of State and publication of international agreements. This part applies to all agencies of the U.S. Government whose responsibilities include the negotiation and conclusion of international agreements. This part does not, however, constitute a delegation by the Secretary of State of the authority to engage in such activites. Further, it does not affect any additional requirements of law governing the relationship between particular agencies and the Secretary of State in connection with international negotiations and agreements, or any other requirements of law concerning the relationship between particular agencies and the Congress. The term agency as used in this part means each authority of the United States Government, whether or not it is within or subject to review by another agency.
(b) Pursuant to the key legal requirements of the Act – full and timely disclosure to the Congress of all concluded agreements and consultation by agencies with the Secretary of State with respect to proposed agreements – every agency of the Government is required to comply with each of the provisions set out in this part in implementation of the Act. Nevertheless, this part is intended as a framework of measures and procedures which, it is recognized, cannot anticipate all circumstances or situations that may arise. Deviation or derogation from the provisions of this part will not affect the legal validity, under United States law or under international law, of agreements concluded, will not give rise to a cause of action, and will not affect any public or private rights established by such agreements.
§ 181.2 Criteria.
(a) General. The following criteria are to be applied in deciding whether any undertaking, oral agreement, document, or set of documents, including an exchange of notes or of correspondence, constitutes an international agreement within the meaning of the Act, as well as within the meaning of 1 U.S.C. 112a, requiring the publication of international agreements. Each of the criteria except those in paragraph (a)(5) of this section must be met in order for any given undertaking of the United States to constitute an international agreement.
(1) Identity and intention of the parties. A party to an international agreement must be a state, a state agency, or an intergovernmental organization. The parties must intend their undertaking to be legally binding, and not merely of political or personal effect. Documents intended to have political or moral weight, but not intended to be legally binding, are not international agreements. An example of the latter is the Final Act of the Helsinki Conference on Cooperation and Security in Europe. In addition, the parties must intend their undertaking to be governed by international law, although this intent need not be manifested by a third-party dispute settlement mechanism or any express reference to international law. In the absence of any provision in the arrangement with respect to governing law, it will be presumed to be governed by international law. This presumption may be overcome by clear evidence, in the negotiating history of the agreement or otherwise, that the parties intended the arrangement to be governed by another legal system. Arrangements governed solely by the law of the United States, or one of the states or jurisdictions thereof, or by the law of any foreign state, are not international agreements for these purposes. For example, a foreign military sales loan agreement governed in its entirety by U.S. law is not an international agreement.
(2) Significance of the arrangement. Minor or trivial undertakings, even if couched in legal language and form, are not considered international agreements within the meaning of the Act or of 1 U.S.C. 112a. In deciding what level of significance must be reached before a particular arrangement becomes an international agreement, the entire context of the transaction and the expectations and intent of the parties must be taken into account. The duration of the activities pursuant to the undertaking or the duration of the undertaking itself shall not be a factor in determining whether it constitutes an international agreement. It remains a matter of judgment based on all of the circumstances of the transaction. Determinations are made pursuant to § 181.3. Examples of arrangements that may constitute international agreements are agreements that: (i) Are of political significance; (ii) involve substantial grants of funds or loans by the United States or credits payable to the United States; (iii) constitute a substantial commitment of funds that extends beyond a fiscal year or would be a basis for requesting new appropriations; (iv) involve continuing and/or substantial cooperation in the conduct of a particular program or activity, such as scientific, technical, or other cooperation, including the exchange or receipt of information and its treatment, or the pooling of data. However, individual research grants and contracts do not ordinarily constitute international agreements.
(3) Specificity, including objective criteria for determining enforceability. International agreements require precision and specificity in the language setting forth the undertakings of the parties. Undertakings couched in vague or very general terms containing no objective criteria for determining enforceability or performance are not normally international agreements. Most frequently such terms reflect an intent not to be bound. For example, a promise to “help develop a more viable world economic system” lacks the specificity essential to constitute a legally binding international agreement. However, the intent of the parties is the key factor. Undertakings as general as those of, for example, Articles 55 and 56 of the United Nations Charter have been held to create internationally binding obligations intended as such by the parties.
(4) Necessity for two or more parties. While unilateral commitments on occasion may be legally binding, they do not constitute international agreements. For example, a statement by the President promising to send money to Country Y to assist earthquake victims would not be an international agreement. It might be an important undertaking, but not all undertakings in international relations are in the form of international agreements. Care should be taken to examine whether a particular undertaking is truly unilateral in nature, or is part of a larger bilateral or multilateral set of undertakings. Moreover, “consideration,” as that term is used in domestic contract law, is not required for international agreements.
(5) Form. Form as such is not normally an important factor, but it does deserve consideration. Documents which do not follow the customary form for international agreements, as to matters such as style, final clauses, signatures, or entry into force dates, may or may not be international agreements. Failure to use the customary form may constitute evidence of a lack of intent to be legally bound by the arrangement. If, however, the general content and context reveal an intention to enter into a legally binding relationship, a departure from customary form will not preclude the arrangement from being an international agreement. Moreover, the title of the agreement will not be determinative. Decisions will be made on the basis of the substance of the arrangement, rather than on its denomination as an international agreement, a memorandum of understanding, exchange of notes, exchange of letters, technical arrangement, protocol, note verbale, aide-memoire, agreed minute, or any other name.
(b) Agency-level agreements. Agency-level agreements are international agreements within the meaning of the Act and of 1 U.S.C. 112a if they satisfy the criteria discussed in paragraph (a) of this section. The fact that an agreement is concluded by and on behalf of a particular agency of the United States Government, rather than the United States Government, does not mean that the agreement is not an international agreement. Determinations are made on the basis of the substance of the agency-level agreement in question.
(c) Implementing agreements. An implementing agreement, if it satisfies the criteria discussed in paragraph (a) of this section, may be an international agreement, depending upon how precisely it is anticipated and identified in the underlying agreement it is designed to implement. If the terms of the implementing agreement are closely anticipated and identified in the underlying agreement, only the underlying agreement is considered and international agreement. For example, the underlying agreement might call for the sale by the United States of 1000 tractors, and a subsequent implementing agreement might require a first installment on this obligation by the sale of 100 tractors of the brand X variety. In that case, the implementing agreement is sufficiently identified in the underlying agreement, and would not itself be considered an international agreement within the meaning of the Act or of 1 U.S.C. 112a. Project annexes and other documents which provide technical content for an umbrella agreement are not normally treated as international agreements. However, if the underlying agreement is general in nature, and the implementing agreement meets the specified criteria of paragraph (a) of this section, the implementing agreement might well be an international agreement. For example, if the underlying agreement calls for the conclusion of “agreements for agricultural assistance,” but without further specificity, then a particular agricultural assistance agreement subsequently concluded in “implementation” of that obligation, provided it meets the criteria discussed in paragraph (a) of this section, would constitute an international agreement independent of the underlying agreement.
(d) Extensions and modifications of agreements. If an undertaking constitutes an international agreement within the meaning of the Act and of 1 U.S.C. 112a, then a subsequent extension or modification of such an agreement would itself constitute an international agreement within the meaning of the Act and of 1 U.S.C. 112a.
(e) Oral agreements. Any oral arrangement that meets the criteria discussed in paragraphs (a)(1)-(4) of this section is an international agreement and, pursuant to section (a) of the Act, must be reduced to writing by the agency that concluded the oral arrangement. In such written form, the arrangement is subject to all the requirements of the Act and of this part. Whenever a question arises whether an oral arrangement constitutes an international agreement, the arrangement shall be reduced to writing and the decision made in accordance with § 181.3.
(f) Notwithstanding the other provisions of this section, arrangements that constitute international agreements within the meaning of this section include
(1) Bilateral or multilateral counterterrorism agreements and
(2) Bilateral agreements with a country that is subject to a determination under section 6(j)(1)(A) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)(1)(A)), section 620A(a) of the Foreign Assistance Act of 1961 (22 U.S.C. 2371(a)), or section 40(d) of the Arms Export Control Act (22 U.S.C. 2780(d)).
§ 181.3 Determinations.
(a) Whether any undertaking, document, or set of documents constitutes or would constitute an international agreement within the meaning of the Act or of 1 U.S.C. 112a shall be determined by the Legal Adviser of the Department of State, a Deputy Legal Adviser, or in most cases the Assistant Legal Adviser for Treaty Affairs. Such determinations shall be made either on a case-by-case basis, or on periodic consultation, as appropriate.
(b) Agencies whose responsibilities include the negotiation and conclusion of international agreements are responsible for transmitting to the Assistant Legal Adviser for Treaty Affairs, for decision pursuant to paragraph (a) of this section, the texts of any document or set of documents that might constitute an international agreement. The transmittal shall be made prior to or simultaneously with the request for consultations with the Secretary of State required by subsection (c) of the Act and § 181.4 of this part.
(c) Agencies whose responsibilities include the negotiation and conclusion of large numbers of agency-level and implementing arrangements at overseas posts, only a small number of which might constitute international agreements within the meaning of the Act and of 1 U.S.C. 112a, are required to transmit prior to their entry into force only the texts of the more important of such arrangements for decision pursuant to paragraph (a) of this section. The texts of all arrangements that might constitute international agreements shall, however, be transmitted to the Office of the Assistant Legal Adviser for Treaty Affairs as soon as possible, and in no event to arrive at that office later than 20 days after their signing, for decision pursuant to paragraph (a) of this section.
(d) Agencies to which paragraphs (b) and (c) of this section apply shall consult periodically with the Assistant Legal Adviser for Treaty Affairs in order to determine which categories of arrangements for which they are responsible are likely to be international agreements within the meaning of the Act and of 1 U.S.C. 112a.
§ 181.4 Consultations with the Secretary of State.
(a) The Secretary of State is responsible, on behalf of the President, for ensuring that all proposed international agreements of the United States are fully consistent with United States foreign policy objectives. Except as provided in § 181.3(c) of this part, no agency of the U.S. Government may conclude an international agreement, whether entered into in the name of the U.S. Government or in the name of the agency, without prior consultation with the Secretary of State or his designee.
(b) The Secretary of State (or his designee) gives his approval for any proposed agreement negotiated pursuant to his authorization, and his opinion on any proposed agreement negotiated by an agency which has separate authority to negotiate such agreement. The approval or opinion of the Secretary of State or his designee with respect to any proposed international agreement will be given pursuant to Department of State procedures set out in Volume 11, Foreign Affairs Manual, Chapter 700 (Circular 175 procedure). Officers of the Department of State shall be responsible for the preparation of all documents required by the Circular 175 procedure.
(c) Pursuant to the Circular 175 procedure, the approval of, or an opinion on a proposed international agreement to be concluded in the name of the U.S. Government will be given either by the Secretary of State or his designee. The approval of, or opinion on a proposed international agreement to be concluded in the name of a particular agency of the U.S. Government will be given by the interested assistant secretary or secretaries of State, or their designees, unless such official(s) judge that consultation with the Secretary, Deputy Secretary, or an Under Secretary is necessary. The approval of, or opinion on a proposed international agreement will normally be given within 20 days of receipt of the request for consultation and of the information as required by § 181.4(d)-(g).
(d) Any agency wishing to conclude an international agreement shall transmit to the interested bureau or office in the Department of State, or to the Office of the Legal Adviser, for consultation pursuant to this section, a draft text or summary of the proposed agreement, a precise citation of the Constitutional, statutory, or treaty authority for such agreement, and other background information as requested by the Department of State. The transmittal of the draft text or summary and citation of legal authority shall be made before negotiations are undertaken, or if that is not feasible, as early as possible in the negotiating process. In any event such transmittals must be made no later than 50 days prior to the anticipated date for concluding the proposed agreement. If unusual circumstances prevent this 50-day requirement from being met, the concerned agency shall use its best efforts to effect such transmittal as early as possible prior to the anticipated date for concluding the proposed agreement.
(e)(1) If a proposed agreement embodies a commitment to furnish funds, goods, or services that are beyond or in addition to those authorized in an approved budget, the agency proposing the agreement shall state what arrangements have been planned or carried out concerning consultation with the Office of Management and Budget for such commitment. The Department of State should receive confirmation that the relevant budget approved by the President provides or requests funds adequate to fulfill the proposed commitment, or that the President has made a determination to seek the required funds.
(2) If a proposed agreement embodies a commitment that could reasonably be expected to require (for its implementation) the issuance of a significant regulatory action (as defined in section 3 of Executive Order 12866), the agency proposing the arrangement shall state what arrangements have been planned or carried out concerning timely consultation with the Office of Management and Budget (OMB) for such commitment. The Department of State should receive confirmation that OMB has been consulted in a timely manner concerning the proposed commitment.
(f) Consultation may encompass a specific class of agreements rather than a particular agreement where a series of agreements of the same general type is contemplated; that is, where a number of agreements are to be negotiated according to a more or less standard formula, such as, for example, Pub. L. 480 Agricultural Commodities Agreements. Any agency wishing to conclude a particular agreement within a specific class of agreements about which consultations have previously been held pursuant to this section shall transmit a draft text of the proposed agreement to the Office of the Legal Adviser as early as possible but in no event later than 20 days prior to the anticipated date for concluding the agreement.
(g) The consultation requirement shall be deemed to be satisfied with respect to proposed international agreements of the United States about which the Secretary of State (or his designee) has been consulted in his capacity as a member of an interagency committee or council established for the purpose of approving such proposed agreements. Designees of the Secretary of State serving on any such interagency committee or council are to provide as soon as possible to the interested offices or bureaus of the Department of State and to the Office of the Legal Adviser copies of draft texts or summaries of such proposed agreements and other background information as requested.
(h) Before an agreement containing a foreign language text may be signed or otherwise concluded, a signed memorandum must be obtained from a responsible language officer of the Department of State or of the U.S. Government agency concerned certifying that the foreign language text and the English language test are in conformity with each other and that both texts have the same meaning in all substantive respects. The signed memorandum is to be made available to the Department of State upon request.
§ 181.5 Twenty-day rule for concluded agreements.
(a) Any agency, including the Department of State, that concludes an international agreement within the meaning of the Act and of 1 U.S.C. 112a, whether entered into in the name of the U.S. Government or in the name of the agency, must transmit the text of the concluded agreement to the Office of the Assistant Legal Adviser for Treaty Affairs as soon as possible and in no event to arrive at that office later than 20 days after the agreement has been signed. The 20-day limit, which is required by the Act, is essential for purposes of permitting the Department of State to meet its obligation under the Act to transmit concluded agreements to the Congress no later than 60 days after their entry into force.
(b) In any case of transmittal after the 20-day limit, the agency or Department of State office concerned may be asked to provide to the Assistant Legal Adviser for Treaty Affairs a statement describing the reasons for the late transmittal. Any such statements will be used, as necessary, in the preparation of the annual report on late transmittals, to be signed by the President and transmitted to the Congress, as required by subsection (b) of the Act.
§ 181.6 Documentation and certification.
(a) Transmittals of concluded agreements to the Assistant Legal Adviser for Treaty Affairs pursuant to § 181.5 must include the signed or initialed original texts, together with all accompanying papers, such as agreed minutes, exchanges of notes, or side letters. The texts transmitted must be accurate, legible, and complete, and must include the texts of all languages in which the agreement was signed or initiated. Names and identities of the individuals signing or initialing the agreements, for the foreign government as well as for the United States, must, unless clearly evident in the texts transmitted, be separately provided.
(b) Agreements from overseas posts should be transmitted to the Department of State by priority airgram, marked for the attention of the Assistant Legal Adviser for Treaty Affairs, with the following notation below the enclosure line: FAIM: Please send attached original agreement to L/T on arrival.
(c) Where the original texts of concluded agreements are not available, certified copies must be transmitted in the same manner as original texts. A certified copy must be an exact copy of the signed original.
(d) When an exchange of diplomatic notes between the United States and a foreign government constitutes an agreement or has the effect of extending, modifying, or terminating an agreement to which the United States is a party, a properly certified copy of the note from the United States to the foreign government, and the signed original of the note from the foreign government, must be transmitted. If, in conjunction with the agreement signed, other notes related thereto are exchanged (either at the same time, beforehand, or subsequently), properly certified copies of the notes from the United States to the foreign government must be transmitted with the signed originals of the notes from the foreign government.
(e) Copies may be certified either by a certification on the document itself, or by a separate certification attached to the document. A certification on the document itself is placed at the end of the document. It indicates, either typed or stamped, that the document is a true copy of the original signed or initialed by (insert full name of signing officer), and it is signed by the certifying officer. If a certification is typed on a separate sheet of paper, it briefly describes the document certified and states that it is a true copy of the original signed by (full name) and it is signed by the certifying officer.
§ 181.7 Transmittal to the Congress.
(a) International agreements other than treaties shall be transmitted by the Assistant Legal Adviser for Treaty Affairs to the President of the Senate and the Speaker of the House of Representatives as soon as practicable after the entry into force of such agreements, but in no event later than 60 days thereafter.
(b) Classified agreements shall be transmitted by the Assistant Legal Adviser for Treaty Affairs to the Senate Committee on Foreign Relations and to the House Committee on International Relations.
(c) The Assistant Legal Adviser for Treaty Affairs shall also transmit to the President of the Senate and to the Speaker of the House of Representatives background information to accompany each agreement reported under the Act. Background statements, while not expressly required by the act, have been requested by the Congress and have become an integral part of the reporting requirement. Each background statement shall include information explaining the agreement and a precise citation of legal authority. At the request of the Assistant Legal Adviser for Treaty Affairs, each background statement is to be prepared in time for transmittal with the agreement it accompanies by the office most closely concerned with the agreement. Background statements for classified agreements are to be transmitted by the Assistant Legal Adviser for Treaty Affairs to the Senate Committee on Foreign Relations and to the House Committee on International Relations.
(d) Pursuant to section 12 of the Taiwan Relations Act (22 U.S.C. 3311), any agreement entered into between the American Institute in Taiwan and the governing authorities on Taiwan, or any agreement entered into between the Institute and an agency of the United States Government, shall be transmitted by the Assistant Legal Adviser for Treaty Affairs to the President of the Senate and to the Speaker of the House of Representatives as soon as practicable after the entry into force of such agreements, but in no event later than 60 days thereafter. Classified agreements entered into by the Institute shall be transmitted by the Assistant Legal Adviser for Treaty Affairs to the Senate Committee on Foreign Affairs.
§ 181.8 Publication.
(a) The following categories of international agreements will not be published in United States Treaties and Other International Agreements:
(1) Bilateral agreements for the rescheduling of intergovernmental debt payments;
(2) Bilateral textile agreements concerning the importation of products containing specified textile fibers done under the Agricultural Act of 1956, as amended;
(3) Bilateral agreements between postal administrations governing technical arrangements;
(4) Bilateral agreements that apply to specified military exercises;
(5) Bilateral military personnel exchange agreements;
(6) Bilateral judicial assistance agreements that apply only to specified civil or criminal investigations or prosecutions;
(7) Bilateral mapping agreements;
(8) Tariff and other schedules under the General Agreement on Tariffs and Trade and under the Agreement of the World Trade Organization;
(9) Agreements that have been given a national security classification pursuant to Executive Order No. 13526, its predecessors or successors, or are otherwise exempt from public disclosure pursuant to U.S. law;
(10) Bilateral agreements with other governments that apply to specific activities and programs financed with foreign assistance funds administered by the United States Agency for International Development pursuant to the Foreign Assistance Act, as amended, and the Agricultural Trade Development and Assistance Act of 1954, as amended;
(11) Letters of agreements and memoranda of understanding with other governments that apply to bilateral assistance for counter-narcotics and other anti-crime purposes furnished pursuant to the Foreign Assistance Act, as amended;
(12) Bilateral agreements that apply to specified education and leadership development programs designed to acquaint U.S. and foreign armed forces, law enforcement, homeland security, or related personnel with limited, specialized aspects of each other’s practices or operations;
(13) Bilateral agreements between aviation agencies governing specified aviation technical assistance projects for the provision of managerial, operational, and technical assistance in developing and modernizing the civil aviation infrastructure;
(14) Bilateral acquisition and cross servicing agreements and logistics support agreements;
(15) Bilateral agreements relating to the provision of health care to military personnel on a reciprocal basis; and
(16) Bilateral agreements for the reduction of intergovernmental debts.
(b) In addition to those listed in paragraph (a) of this section, the following categories of agreements will not be published in United States Treaties and Other International Agreements:
(1) Agreements on the subjects listed in paragraphs (a)(1) through (9) of this section that had not been published as of February 26, 1996;
(2) Agreements on the subjects listed in paragraphs (a)(10) through (13) of this section that had not been published as of September 8, 2006; and
(3) Agreements on the subjects listed in paragraphs (a)(14) through (16) of this section that had not been published as of November 14, 2014.
(c) Any international agreements in the possession of the Department of State, other than those in paragraph (a)(9) of this section, but not published will be made available upon request by the Department of State.
(d) The Assistant Legal Adviser for Treaty Affairs shall annually submit to Congress a report that contains an index of all international agreements, listed by country, date, title, and summary of each such agreement (including a description of the duration of activities under the agreement and the agreement itself), that the United States:
(1) Has signed, proclaimed, or with reference to which any other final formality has been executed, or that has been extended or otherwise modified, during the preceding calendar year; and
(2) Has not been published, or is not proposed to be published, in the compilation entitled “United States Treaties and Other International Agreements.”
§ 181.9 Internet Web site publication.
The Office of the Assistant Legal Adviser for Treaty Affairs, with the cooperation of other bureaus in the Department, shall be responsible for making publicly available on the Internet Web site of the Department of State each treaty or international agreement proposed to be published in the compilation entitled “United States Treaties and Other International Agreements” not later than 180 days after the date on which the treaty or agreement enters into force.
SUBCHAPTER T – HOSTAGE RELIEF
PART 191 – HOSTAGE RELIEF ASSISTANCE
Subpart A – General
§ 191.1 Declaration of hostile action.
(a) The Secretary of State from time to time shall declare when and where individuals in the civil or uniformed services of the United States, or a citizen or resident alien of the United States rendering personal services to the United States abroad similar to the service of a civil officer or employee of the United States, have been placed in captive status because of hostile action abroad directed against the United States and occurring or continuing between November 4, 1979, and such date as may be declared by the President under section 101(2)(A) of the Hostage Relief Act of 1980 (Pub. L. 96-449, hereafter “the Act”) or January 1, 1983, whichever is later. Each such declaration shall be published in the
(b) The Secretary of State upon his or her own initiative, or upon application under § 191.2 shall determine which individuals in captive status as so declared shall be considered hostages eligible for benefits under the Act. The Secretary shall also determine who is eligible under the Act for benefits as a member of a family or household of a hostage. The determination of the Secretary shall be final, but any interested person may request reconsideration on the basis of information not considered at the time of original determination. The criteria for determination are set forth in sections 101 and 205 of the Act, and in these regulations.
§ 191.2 Application for determination of eligibility.
(a) Any person who believes that they or other persons known to them are either hostages as defined in the Act, or members of the family or household of hostages as defined in § 191.3(a)(1), or a child eligible for benefits under subpart D, may apply for benefits under this subchapter for themselves, or on behalf of others entitled thereto.
(b) The application shall be in writing, should contain all identifying and other pertinent data available to the person applying about the person or persons claimed to be eligible, and should be addressed to the Assistant Secretary of State for Administration, Department of State, Washington, DC 20520. Applications may be filed at any time after publication of a declaration under § 191.1(a) in the
§ 191.3 Definitions.
When used in this subchapter, unless otherwise specified, the terms –
(a) Family member means (1) a spouse, (2) an unmarried dependent child including a step-child or adopted child, (3) a person designated in official records or determined by the agency head or designee thereof to be a dependent, or (4) other persons such as parents, parents-in-law, persons who stand in the place of a spouse or parents, or other members of a household when fully justified by the circumstances of the hostage situation, as determined by the Secretary of State.
(b) Agency head means the head of an agency as defined in the Act (or successor agency) employing an individual determined to be an American hostage. The Secretary of State is the agency head with respect to any hostage not employed by an agency.
(c) Principal means the hostage whose captivity forms the basis for benefits under this subchapter for a family member.
§ 191.4 Notification of eligible persons.
The Assistant Secretary of State for Administration shall be responsible for notifying each individual determined to be eligible for benefits under the Act or, if that person is not available, a representative or Family Member of the hostage.
§ 191.5 Relationships among agencies.
(a) The Assistant Secretary of State for Administration shall promptly inform the head of any agency whenever an employee (including a member of the Armed Forces) in that agency, or Family Member of such employee, is determined to be eligible for benefits under this subchapter.
(b) In accordance with inter-agency agreements between the Department of State and relevant agencies –
(1) The Veterans Administration will periodically bill the Department of State for expenses it pays for each eligible person under subpart D of this subchapter plus the administrative costs of carrying out its responsibilities under this part.
(2) The Department of State will, on a periodic basis, determine the cost for services and benefits it provides to all eligible persons under this subchapter and bill each agency for the costs attributable to Principals (and Family Members) in or acting on behalf of the agency plus a proportionate share of related administrative expenses.
§ 191.6 Effective date.
This regulation is effective as of November 4, 1979. Reimbursement may be made for expenses approved under this subchapter for services rendered on or after such date.
Subpart B – Application of Soldiers’ and Sailors’ Civil Relief Act
§ 191.10 Eligibility for benefits.
A person designated as a hostage under subpart A of this subchapter, other than a member of the Armed Forces covered by the provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940, shall be eligible for benefits under this part.
§ 191.11 Applicable benefits.
(a) Eligible persons are entitled to the benefits provided by the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U.S.C. App. 501, et seq.), including the benefits provided by section 701 (50 U.S.C. App. 591) notwithstanding paragraph (c) thereof, but excluding the benefits provided by sections 104, 105, 106, 400 through 408, 501 through 512, and 514 (50 U.S.C. App. 514, 515, 516, 540 through 548, 561 through 572, and 574).
(b) In applying such Act for purposes of this section –
(1) The term “person in the military service” is deemed to include any such American hostage;
(2) The term “period of military service” is deemed to include the period during which such American hostage is in a captive status;
(3) References therein to the Secretary of the Army, the Secretary of the Navy, the Adjutant General of the Army, the Chief of Naval Personnel, and the Commandant, United States Marine Corps, or other officials of government are deemed to be references to the Secretary of State; and
(4) The term “dependents” shall, to the extent permissible by law, be construed to include “Family Members” as defined in section 101 of the Hostage Relief Act.
§ 191.12 Description of benefits.
The following material is included to assist persons affected, by providing a brief description of some of the provisions of the Civil Relief Act. Note that not all of the sections applicable to hostages have been included here. References to sections herein are references to the Civil Relief Act of 1940, as amended, followed by references in parentheses to the same section in the United States Code.
(a) Guarantors, endorsers. Section 103 (50 U.S.C. App. 513) provides that whenever a hostage is granted relief from the enforcement of an obligation, a court, in its discretion, may grant the same relief to guarantors and endorsers of the obligation. Amendments extend relief to accommodation makers and others primarily or secondarily liable on an obligation, and to sureties on a criminal bail bond. They provide, on certain conditions, that the benefits of the section with reference to persons primarily or secondarily liable on an obligation may be waived in writing.
(b) Written agreements. Section 107 (50 U.S.C. App. 517) provides that nothing contained in the Act shall prevent hostages from making certain arrangements with respect to their contracts and obligations, but requires that such arrangements be in writing.
(c) Protection in court. Section 200 (50 U.S.C. App. 520) provides that if a hostage is made defendant in a court action and is unable to appear in court, the court shall appoint an attorney to represent the hostage and protect the hostage’s interests. Further, if a judgment is rendered against the hostage, an opportunity to reopen the case and present a defense, if meritorious, may be permitted within 90 days after release.
(d) Court postponement. Section 201 (50 U.S.C. App. 521) authorizes a court to postpone any court proceedings if a hostage is a party thereto and is unable to participate by reason of being a captive.
(e) Relief against penalties. Section 202 (50 U.S.C. App. 522) provides for relief against fines or penalties when a court proceeding involving a hostage is postponed, or when the fine or penalties are incurred for failure to perform any obligation. In the latter case, relief depends upon whether the hostage’s ability to pay or perform is materially affected by being held captive.
(f) Postponement of action. Section 203 (50 U.S.C. App. 523) authorizes a court to postpone or vacate the execution of any judgment, attachment or garnishment.
(g) Period of postponement. Section 204 (50 U.S.C. App. 524) authorizes a court to postpone proceedings for the period of captivity, and for 3 months thereafter, or any part thereof.
(h) Extended time limits. Section 205 (50 U.S.C. App. 525) excludes the period of captivity from computing time under existing or future statutes of limitation. Amendments extend relief to include actions before administrative agencies, and provide that the period of captivity shall not be included in the period for redemption of real property sold to enforce any obligation, tax, or assessment. Section 207 excludes application of section 205 to any period of limitation prescribed by or under the internal revenue laws of the United States.
(i) Interest rates. Section 206 (50 U.S.C. App. 526) provides that interest on the obligations of hostages shall not exceed a specified per centum per annum, unless the court determines that ability to pay greater interest is not affected by being held captive.
(j) Misuse of benefits. Section 600 (50 U.S.C. App. 580) provides against transfers made with intent to delay the just enforcement of a civil right by taking advantage of the Act.
(k) Further relief. Section 700 (50 U.S.C. App. 590) provides that a person, during a period of captivity or 6 months thereafter, may apply to a court for relief with respect to obligations incurred prior to captivity, or any tax or assessment whether falling due prior to or during the period of captivity. The court may, on certain conditions, stay the enforcement of such obligations.
(l) Stay of eviction. Section 300 (50 U.S.C. App. 530) provides that a hostage’s dependents shall not be evicted from their dwelling if the rental is $150 or less per month, except upon leave of a court. If it is proved that inability to pay rent is a result of being in captivity, the court is authorized to stay eviction proceedings for not longer than 3 months. An amendment extends relief to owners of the premises with respect to payments on mortgage and taxes.
(m) Contract and mortgage obligations. As provided by sections 301 and 302 of the Act (50 U.S.C. App. 531 and 532), as amended, contracts for the purchase of real and personal property, which originated prior to the period of captivity, may not be rescinded, terminated, or foreclosed, or the property repossessed, except as provided in section 107 (50 U.S.C. App. 517), unless by an order of a court. The mentioned sections give the court wide discretionary powers to make such disposition of the particular case as may be equitable in order to conserve the interests of both the hostage and the creditor. The cited sections further provide that the court may stay the proceedings for the period of captivity and 3 months thereafter, if in its opinion the ability of the hostage to perform the obligation is materially affected by reason of captivity. Section 303 (50 U.S.C. App. 533) provides that the court may appoint appraisers and, based upon their report, order such sum as may be just, if any, paid to hostages or their dependents, as a condition to foreclosing a mortgage, resuming possession of property, and rescinding or terminating a contract.
(n) Termination of a lease. Section 304 (50 U.S.C. App. 534) provides, in general, that a lease covering premises occupied for dwelling, business, or agricultural purpose, executed by persons who subsequently become hostages, may be terminated by a notice in writing given to the lessor, subject to such action as may be taken by a court on application of the lessor. Termination of a lease providing for monthly payment of rent shall not be effective until 30 days after the first date on which the next rental payment is due, and, in the case of other leases, on the last day of the month following the month when the notice is served.
(o) Assignment of life insurance policy. Section 305 (50 U.S.C. App. 535) provides that the assignee of a life insurance policy assigned as security, other than the insurer in connection with a policy loan, except upon certain conditions, shall not exercise any right with respect to the assignment during the period of captivity of the insured and one year thereafter, unless upon order of a court.
(p) Storage lien. Section 305 (50 U.S.C. App. 535) provides that a lien for storage of personal property may not be foreclosed except upon court order. The court may stay proceedings or make other just disposition.
(q) Extension of benefits to dependents. Section 306 (50 U.S.C. App. 536) extends the benefits to section 300 through 305 to dependents of a hostage.
(r) Real and personal property taxes. Section 500 (50 U.S.C. App. 560) forbids sale of property, except upon court leave, to enforce collection of taxes or assessments (other than taxes on income) on personal property or real property owned and occupied by the hostage or dependents thereof at the commencement of captivity and still occupied by the hostage’s dependents or employees. The court may stay proceedings for a period not more than 6 months after termination of captivity. When by law such property may be sold to enforce collection, the hostage will have the right to redeem it within 6 months after termination of captivity. Unpaid taxes or assessments bear interest at 6 percent.
(s) Income taxes. Section 513 provides for deferment of payment of income taxes. However, section 204 of the Hostage Relief Act of 1980 provides for deferment and certain other relief, and should be referred to in order to determine statutory tax benefits in addition to those in section 513 of the Civil Relief Act.
(t) Certification of hostage. Section 601 provides that a certificate signed by the agency head shall be prima facie evidence that the person named has been a hostage during the period specified in the certification.
(u) Interlocutory orders. Section 602 (50 U.S.C. App. 582) provides that a court may revoke an interlocutory order it has issued pursuant to any provision of the Soldiers’ and Sailors’ Civil Relief Act of 1940.
(v) Power of attorney. Section 701 (50 U.S.C. App. 591) provides that certain powers of attorney executed by a hostage which expire by their terms after the person was captured shall be automatically extended for the period of captivity. Exceptions are made with respect to powers of attorney which by their terms clearly indicate they are to expire on the date specified irrespective of hostage status. (Section 701 applies to American hostages notwithstanding paragraph (c) thereof which states that it applies only to powers of attorney issued during the “Vietnam era”.)
§ 191.13 Administration of benefits.
(a) The Assistant Secretary of State for Administration will issue certifications or other documents when required for purposes of the Civil Relief Act.
(b) The Assistant Secretary of State shall whenever possible promptly inform the chief legal officer of each State in which hostages maintain residence of all persons determined to be hostages eligible for assistance under this subpart.
Subpart C – Medical Benefits
§ 191.20 Eligibility for benefits.
A person designated as a hostage or Family Member of a hostage under subpart A of this subchapter shall be eligible for benefits under this subpart.
§ 191.21 Applicable benefits.
A person eligible for benefits under this part shall be eligible for authorized medical and health care at U.S. Government expense, and for payment of other authorized expenses related to such care or for obtaining such care for any illness or injury which is determined by the Secretary of State to be caused or materially aggravated by the hostage situation, to the extent that such care may not –
(a) Be provided or paid for under any other Government health or medical program, including, but not limited to, the programs administered by the Secretary of Defense, the Secretary of Labor and the Administrator of Veterans Affairs; or
(b) Be entitled to reimbursement by any private or Government health insurance or comparable plan.
§ 191.22 Administration of benefits.
(a) An eligible person, who desires medical or health care under this subpart or any person acting on behalf thereof, shall submit an application to the Office of Medical Services, Department of State, Washington, DC 20520 (hereafter referred to as the “Office”). The applicant shall supply all relevant information, including insurance information, requested by the Director of the Office. An eligible person may also submit claims to the Office for payment for emergency care when there is not time to obtain prior authorization as prescribed by this paragraph, and for payment for care received prior to or ongoing on the effective date of these regulations.
(b) The Office shall evaluate all requests for care and claims for reimbursement and determine, on behalf of the Secretary of State, whether the care in question is authorized under § 191.21 of this subpart. The Office will authorize care, or payment for care when it determines the criteria of such section are met. Authorization shall include a determination as to the necessity and reasonableness of medical or health care.
(c) The Office will refer applicants eligible for benefits under other Government health programs to the Government agency administering those programs. Any portion of authorized care not provided or paid for under another Government program will be reimbursed under this subpart.
(d) Eligible persons may obtain authorized care from any licensed facility or health care provider of their choice approved by the Office. To the extent possible, the Office will attempt to arrange for authorized care to be provided in a Government facility at no cost to the patient.
(e) Authorized care provided by a private facility or health care provider will be paid or reimbursed under this subpart to the extent that the Office determines that costs do not exceed reasonable and customary charges for similar care in the locality.
(f) All bills for authorized medical or health care covered by insurance shall be submitted to the patient’s insurance carrier for payment prior to submission to the Office for payment of the balance authorized by this part. The Office will request the health care providers to bill the insurance carrier and the Department of State for authorized care, rather than the patient.
(g) Eligible persons will be reimbursed by the Office for authorized travel to obtain an evaluation of their claim under paragraph (b) of this section and for other authorized travel to obtain medical or health care authorized by this subpart.
§ 191.23 Disputes.
Any dispute between the Office and eligible persons concerning (a) whether medical or health care is required in a given case, (b) whether required care is incident to the hostage taking, or (c) whether the cost for any authorized care is reasonable and customary, shall be referred to the Medical Director, Department of State and the Foreign Service for a determination. If the person bringing the claim is not satisfied with the decision of the Medical Director, the dispute shall be referred to a medical board composed of three physicians, one appointed by the Medical Director, one by the eligible person and the third by the first two members. A majority decision by the board shall be binding on all parties.
Subpart D – Educational Benefits
§ 191.30 Eligibility for benefits.
(a) A spouse or unmarried dependent child aged 18 or above of a hostage as determined under subpart A of this subchapter shall be eligible for benefits under § 191.31 of this subpart. (Certain limitations apply, however, to persons eligible for direct assistance through other programs of the Veterans Administration under chapter 35 of title 38, United States Code).
(b) A Principal (see definition in § 191.3) designated as a hostage under Subpart A of this subchapter, who intends to change jobs or careers because of the hostage experience and who desires additional training for this purpose, shall be eligible for benefits under § 191.32 of this part unless such person is eligible for comparable benefits under title 38 of the United States Code as determined by the Administrator of the Veterans Administration.
§ 191.31 Applicable family benefits.
(a) An eligible spouse or child shall be paid (by advancement or reimbursement) for expenses incurred for subsistence, tuition, fees, supplies, books, and equipment, and other educational expenses, while attending an educational or training institution approved in accordance with procedures established by the Veterans Administration, which shall be comparable to procedures established pursuant to chapters 35 and 36 of title 38 U.S.C.
(b) Except as provide in paragraph (c) or (d) of this section), payments shall be available under this subsection for an eligible spouse or child for education or training which occurs –
(1) 90 days after the Principal is placed in a captive status, and
(i) Through the end of any semester or quarter which begins before the date on which the Principal ceases to be in a captive status, or
(ii) If the educational or training institution is not operated on a semester or quarter system, the earlier of the end of any course which began before such date or the end of the twelve-week period following that date.
(c) In special circumstances and within the limitation of § 191.34, the Secretary of State may, under the criteria and procedures set forth in § 191.33, approve payments for education or training under this subsection which occurs after the date determined under paragraph (b) of this section.
(d) In the event a Principal dies and the death is determined by the Secretary of State to be incident to that individual being a hostage, payments shall be available under this subsection for education or training of a spouse or child of the Principal which occurs after the date of death, up to the maximum that may be authorized under § 191.34.
§ 191.32 Applicable benefits for hostages.
(a) When authorized by the Secretary of State a Principal, following released from captivity, shall be paid (by advancement or reimbursement) for expenses incurred for subsistence, tuition, fees, supplies, books and equipment, and other educational expenses, while attending an educational or training institution approved in accordance with procedures established by the Veterans Administration comparable to procedures established pursuant to chapters 35 and 36 of title 38 U.S.C. Payments shall be available under this subsection for education or training which occurs on or before –
(1) The end of any semester or quarter (as appropriate) which begins before the date which is 10 years after the day on which the Principal ceases to be in a captive status, or
(2) If the educational or training institution is not operated on a semester or quarter system, the earlier of the end of any course which began before such date or the end of the twelve-week period following that date.
(b) A person eligible for benefits under this subsection shall not be required to separate from Government service in order to undertake the training or education, but while in Government service, may only receive such training or education during off-duty hours or during periods of approved leave.
§ 191.33 Administration of benefits.
(a) Any person desiring benefits under this part shall apply in writing to the Assistant Secretary of State for Administration, Department of State, Washington, DC 20520. The application shall specify the benefits desired and the basis of eligibility for those benefits. The Secretary of State shall make determinations of eligibility for benefits under this part, and shall forward approved applications to the Veterans Administration and advise the applicant of the name and address of the office in the Veterans Administration that will counsel the eligible persons on how to obtain the benefits that have been approved. Persons whose applications are disapproved shall be advised of the reasons for the disapproval.
(b) The Veterans Administration shall provide the same level and kind of assistance, including payments (by advancement or reimbursement) for authorized expenses up to the same maximum amounts, to spouses and children of hostages, and to Principals following their release from captivity as it does to eligible spouses and children of veterans and to eligible veterans, respectively, under chapters 35 and 36 of title 38, United States Code. The Veterans Administration shall, following consultation with the Secretary of State and under procedures it has established to administer section 1724 of title 38, United States Code, discontinue assistance for any individual whose conduct or progress is unsatisfactory under standards consistent with those established pursuant to such section 1724.
(c) An Advisory Board shall be established to advise on eligibility for benefits under paragraphs (c) and (d) of §§ 191.31 and 191.32. The Board shall be composed of the Assistant Secretary of State for Administration as Chairperson, the Director of the Office of Medical Services of the Department of State, the Executive Director of the regional bureau of the Department of State in whose region the relevant hostile action occurred, the Director of Personnel or other designee of the applicable employing agency, and a representative of the Veterans Administration designated by the Administrator.
(d) If an application is received from a spouse or child for extended training under § 191.31(c), the Secretary of Administration shall determine with the advice of the Advisory Board whether the Principal, following release from captivity, is incapacitated by the hostage experience to the extent that (1) he or she has not returned to full-time active duty and is unlikely to be able to resume the normal duties of his or her position or career, or (2) in the event of a separation from Government service, a comparable position or career, for at least six months from the date the Principal is released from captivity. If the Secretary makes such a determination, he or she may approve, within the limits of § 191.34, an application under § 191.31(c) for up to one year of education or training. If the Principal remains incapacitated, the Secretary may approve additional training or education up to the maximum authorized under § 191.34.
§ 191.34 Maximum limitation on benefits.
(a) In no event may assistance be provided under this subpart for any individual for a period in excess of 45 months, or the equivalent thereof in part-time education or training.
(b) The eligibility of a spouse for benefits under paragraph (c) or (d) of § 191.31 shall expire on a date which is 10 years after the date of the release of the hostage, or the death of the hostage, respectively. The eligibility of a dependent child for benefits under such paragraphs (c) and (d) shall expire on the 26th birthday of such child or on such later date as determined by the Administrator of the Veterans Administration, as would be applicable if section 1712 of title 38, United States Code, were applicable.
PART 192 – VICTIMS OF TERRORISM COMPENSATION
Subpart A – General
§ 192.1 Declarations of hostile action.
(a)(1) The Secretary of State shall declare when and where individuals in the Civil Service of the United States, including members of the Foreign Service and foreign service nationals, or a citizen, national or resident alien of the United States rendering personal services to the United States similar to the service of an individual in the Civil Service, have been placed in captive status commencing on or after November 4, 1979, for purposes of § 192.11(b) or January 21, 1981, for all other purposes under this part, which arises because of hostile action abroad and is a result of the individual’s relationship with the U.S. Government as provided in the Victims of Terrorism Compensation Act, codified in 5 U.S.C. 5569 and 5570 and Executive Order 12598.
(2) The Secretary of State, in consultation with the Secretary of Labor, shall also declare when and where individuals in the Civil Service of the United States including members of the Foreign Service and foreign service nationals, including individuals rendering personal services to the United States similar to the service of an individual in the Civil Service, and family members of these individuals are eligible to receive compensation for disability or death occurring after January 21, 1981. Such determination shall be based on the decision by the Secretary of State that the disability or death was caused by hostile action abroad and was a result of the individual’s relationship with the Government.
(3) Declarations of hostile action in domestic situations shall be made by the Secretary of State in consultation with the Attorney General of the United States and the head of the employing agency or agencies.
(b) The Secretary of State for actions abroad, or Agency Head for domestic actions, upon his or her own initiative, or upon application under § 192.2 shall determine which individuals in captive or missing status as so declared shall be considered captives eligible for benefits under the Act. The Secretary or Agency Head shall also determine who is eligible under the Act for benefits as a member of a family or household of a captive. The determination of the Secretary or Agency Head shall be final for purposes of determining captive status and cash payments, and not subject to judicial review, but any interested person may request reconsideration on the basis of information not considered at the time of original determination. The criteria for determination are set forth in sections 5569 and 5570 of title 5 of U.S.C., and in these regulations.
§ 192.2 Application for determination of eligibility.
(a) Any person who believes that that person or other persons known to that person are either captives as defined in 5 U.S.C. 5569(a)(1), individuals who have suffered disability or death caused by hostile action which was a result of the individual’s relationship with the U.S. Government, members of the family or household of such individuals as defined in § 192.3(a)(1), or a child eligible for benefits under subchapter D, may apply for benefits under this subchapter for that person, or on behalf of others entitled thereto.
(b) The application in connection with hostile action abroad shall be in writing, shall contain all identifying and other pertinent data available to the person applying about the person or persons claimed to be eligible, and shall be addressed to the Director General of the Foreign Service, Department of State, Washington, DC 20520. Applications may be filed within 60 days after the latest of: a declaration under § 192.1(a), the hostile action, or release from captivity. Later filing may be considered when in the opinion of the Secretary of State there is good cause for the late filing. Applications in connection with hostile action in domestic situations shall conform to these same requirements and be filed with the Agency Head.
§ 192.3 Definitions.
When used in this subchapter, unless otherwise specified, the terms –
(a) Secretary of State includes any person to whom the Secretary of State has delegated the responsibilities of carrying out this subpart.
(b) Family member means a dependent of a captive and any individual other than a dependent who is a member of such person’s family or household and shall include the following: (1) A spouse, (2) an unmarried dependent child including a step-child or adopted child under 21 years of age, (3) a person designated in official records or determined by the agency head or designee thereof to be dependent, and (4) other persons such as parents, non-dependent children, parents-in-law, persons who stand in the place of a spouse or parents, or other members of the family or household of a captive or employee, as determined by the Agency head concerned.
(c) Agency head means the head of an Executive Agency of the U.S. Federal Government employing an individual affected by hostile action as covered by these regulations. The Secretary of State is the agency head for actions abroad with respect to any such individual not employed by an agency.
(d) Captive means any individual in a captive status commencing while such individual is in the Civil Service or a citizen, national or resident alien of the United States rendering personal service to the United States similar to the service of an individual in the Civil Service (other than as a member of the uniformed services).
(e) Captive status means a missing status which, as determined under § 192.1, arises because of a hostile action and is a result of the individual’s relationship with the Government.
(f) Principal means the person whose captivity, death or disability forms the basis for benefits for that individual or for a family member under this subchapter.
(g) Individual rendering personal services to the United States similar to the service of an individual in the Civil Service includes contract employees and other individuals fitting that description.
(h) Pay and allowances has the meaning set forth in 5 U.S.C. 5561(6):
(1) Basic pay;
(2) Special pay;
(3) Incentive pay;
(4) Basic allowances for quarters;
(5) Basic allowance for subsistence; and
(6) Station per diem allowances for not more than 90 days.
(i) Child means a dependent as defined in paragraph (b)(2) of this section.
§ 192.4 Notification of eligible persons.
The Director General of the Foreign Service for the Department of State, or other Agency Head in domestic situations, shall be responsible for notifying each individual determined to be eligible for benefits under the Act, or if that person is not available, a representative or family member of the eligible individual.
§ 192.5 Relationships among agencies.
(a) To assist in ensuring that eligible persons receive compensation, each Agency Head shall notify the Director General of the Foreign Service of the Department of State of any incident which he or she believes may be appropriately declared a hostile action under § 192.1.
(b) The Director General of the Foreign Service for the Department of State shall promptly inform the head of any agency whenever an employee of that agency, or Family Member of such employee, is determined to be eligible for benefits under this subchapter in connection with hostile action.
(c) In accordance with inter-agency agreements between the Department of State and relevant agencies –
(1) The Department of Veterans Affairs will periodically bill the Department of State for expenses it pays for each eligible person under subpart E of this subchapter plus the administrative costs of carrying out its responsibilities under this part.
(2) The Department of State will, on a periodic basis, determine the cost for services and benefits it provides to all eligible persons under this subchapter, and bill each agency for the medical service costs (in connection with hostile action abroad) and educational benefits attributable to Principals and Family Members, plus a proportionate share of related administrative expenses.
Subpart B – Payment of Salary and Other Benefits for Captive Situations
§ 192.10 Eligibility for benefits.
A person designated as a captive under subpart A of this subchapter shall be eligible for benefits under this subpart.
§ 192.11 Applicable benefits.
(a) Captives are entitled to receive or have credited to their account, for the period in captive status, the same pay and allowances to which they were entitled at the beginning of that period or to which they may have become entitled thereafter.
(b) A person designated as a captive (or a family member of a principal) under subpart A of this subchapter whose captivity commenced on or after November 4, 1979, is also entitled to receive a cash payment from the captive’s employing agency, for each day held captive, in an amount equal to but not less than one-half of the amount of the world-wide average per diem rate established under 5 U.S.C. 5702.
§ 192.12 Administration of benefits.
(a) The amount deducted from the pay and allowances of captives must be recorded in the individual accounts of the agency concerned. A Treasury designated account, set up on the books of the agency concerned, may be utilized by the head of an agency to report the net amount of pay, allowances and interest credited to captives pursuant to 5 U.S.C. 5569(b). Interest payments under this section shall be paid out of funds available for salaries and expenses of the agency. Interest shall be computed at a rate for any calendar quarter equal to the average rate paid on United States Treasury bills with 3-month maturities issued during the preceding calendar quarter, with quarterly compounding.
(b) Cash payments to captives for each day of captivity shall be made by the head of an agency before the end of the one-year period beginning on the date on which the captive status terminates. In the event the captive dies in captivity or prior to payment of these benefits, payment shall be made to the eligible survivors under § 192.51(c) or the estate. A payment under this subchapter may be deferred or denied by the head of an agency pending determination of an offense committed by the captive under the provisions of 5 U.S.C. 8312.
Subpart C – Application of Soldiers’ and Sailors’ Civil Relief Act to Captive Situations
§ 192.20 Eligibility for benefits.
A person designated as a captive under subpart A of this subchapter, shall be eligible for benefits under this part.
§ 192.21 Applicable benefits.
(a) Eligible persons are entitled to the benefits provided by the Soldiers’ and Sailors’ Civil Relief Act of 1940 (50 U.S.C. App. 501, et seq.), including the benefits provided by section 701 (50 U.S.C. App 591) notwithstanding paragraph (c) thereof, but excluding the benefits provided by sections 104, 105, 106, 400 through 408, 501 through 512, and 514 (50 U.S.C. App. 514, 515, 516, 540 through 548, 561 through 572, and 574).
(b) In applying such Act for purposes of this section –
(1) The term person in the military service is deemed to include any such captive;
(2) The term period of military service is deemed to include the period during which such captive is in a captive status;
(3) References therein to the Secretary of the Army, the Secretary of the Navy, the Adjutant General of the Army, the Chief of Naval Personnel, and the Commandant, United States Marine Corps, or other officials of government are deemed, in the case of any captive, to be references to the Secretary of State; and
(4) The term dependents shall, to the extent permissible by law, be construed to include “Family Members” as defined in § 192.3 of these regulations.
§ 192.22 Description of benefits.
The following material is included to assist persons affected, by providing a brief description of some of the provisions of the Civil Relief Act. Note that not all of the sections applicable to captives have been included here. References to sections herein are references to the Civil Relief Act of 1940, as amended, followed by references in parentheses to the same section in the United States Code.
(a) Guarantors, endorsers. Section 103 (50 U.S.C. App 513) provides that whenever a captive is granted relief from the enforcement of an obligation, a court, in its discretion, may grant the same relief to guarantors and endorsers of the obligation. Amendments extend relief to accommodation makers and others primarily or secondarily liable on an obligation, and to sureties on a criminal bail bond. They provide, on certain conditions, that the benefits of the section with reference to persons primarily or secondarily liable on an obligation may be waived in writing.
(b) Written agreements. Section 107 (50 U.S.C. App. 517) provides that nothing contained in the Act shall prevent captives from making certain arrangements with respect to their contracts and obligations, but requires that such arrangements be in writing.
(c) Protection in court. Section 200 (50 U.S.C. App. 517) provides that if a captive is made a defendant in a court action and is unable to appear in court, the court shall appoint an attorney to represent the captive and protect the captive’s interests. Further, if a judgment is rendered against the captive, an opportunity to reopen the case and present a defense, if meritorious, may be permitted within 90-days after release.
(d) Court postponement. Section 201 (50 U.S.C. App. 521) authorizes a court to postpone any court proceedings if a captive is a party thereto and is unable to participate by reason of being a captive.
(e) Relief against penalties. Section 202 (50 U.S.C. App. 522) provides for relief against fines or penalties when a court proceeding involving a captive is postponed, or when the fine or penalties are incurred for failure to perform any obligation. In the latter case, relief depends upon whether the captive’s ability to pay or perform is materially affected by being held captive.
(f) Postponement of action. Section 203 (50 U.S.C. App. 523) authorizes a court to postpone or vacate the execution of any judgment, attachment or garnishment.
(g) Period of postponement. Section 204 (50 U.S.C. App. 524) authorizes a court to postpone proceedings for the period of captivity and for 3 months thereafter, or any part thereof.
(h) Extended time limits. Section 205 (50 U.S.C. App. 525) excludes the period of captivity from computing time under existing or future statutes of limitation. Amendments extend relief to include actions before administrative agencies, and provide that the period of captivity shall not be included in the period for redemption of real property sold to enforce any obligation, tax, or assessment. Section 207 excludes application of section 205 to any period of limitation prescribed by or under the internal revenue laws of the United States.
(i) Interest rates. Section 206 (50 U.S.C. App. 526) provides that interest on the obligations of captives shall not exceed a specified per centum per annum, unless the court determines that ability to pay greater interest is not affected by being held captive.
(j) Misuse of benefits. Section 600 (50 U.S.C. App. 580) provides against transfers made with intent to delay the just enforcement of a civil right by taking advantage of the Act.
(k) Further relief. Section 700 (50 U.S.C. App. 590) provides that a person, during a period of captivity or 6 months thereafter, may apply to a court for relief with respect to obligations incurred prior to captivity, or any tax or assessment whether falling due prior to or during the period of captivity. The court may, on certain conditions, stay the enforcement of such obligations.
(l) Stay of eviction. Section 300 (50 U.S.C. App. 530) provides that a captive’s dependents shall not be evicted from their dwelling if the rental is minimal, except upon leave of a court. If it is proved that inability to pay rent is a result of being in captivity, the court is authorized to stay eviction proceedings for not longer than 3 months. An amendment extends relief to owners of the premises with respect to payment on mortgage and taxes.
(m) Contract and mortgage obligations. As provided by sections 301 and 302 of the Act (50 U.S.C. App. 531 and 532), as amended, contracts for the purchase of real and personal property, which originated prior to the period of captivity, may not be rescinded, terminated, or foreclosed, or the property repossessed, except as provided in section 107 (50 U.S.C. App. 517), unless by an order of a court. The mentioned sections give the court wide discretionary powers to make such disposition of the particular case as may be equitable in order to conserve the interests of both the captive and the creditor. The cited sections further provide that the court may stay the proceedings for the period of captivity and 3 months thereafter, if in its opinion the ability of the captive to perform the obligation is materially affected by reason of captivity. Section 303 (50 U.S.C. App. 533) provides that the court may appoint appraisers and, based upon their report, order such sum as may be just, if any, paid to captives or their dependents, as a condition to foreclosing a mortgage, resuming possession of property, and rescinding or terminating a contract.
(n) Termination of a lease. Section 304 (50 U.S.C. App. 534) provides, in general, that a lease covering premises occupied for dwelling, business, or agricultural purpose, executed by persons who subsequently become captives, may be terminated by a notice in writing given to the lessor, subject to such action as may be taken by a court on application of the lessor. Termination of a lease providing for monthly payment of rent shall not be effective until 30 days after the first date on which the next rental payment is due, and, in the case of other leases, on the last day of the month following the month when the notice is served.
(o) Assignment of life insurance policy. Section 305 (50 U.S.C. App. 535) provides that the assignee of a life insurance policy assigned as security, other that the insurer in connection with a policy loan, except upon certain conditions, shall not exercise any right with respect to the assignment during period of captivity of the insured and one year thereafter, unless upon order of a court.
(p) Storage lien. Section 305 (50 U.S.C. App. 535) provides that a lien for storage of personal property may not be foreclosed except upon court order. The court may stay proceedings or make other just disposition.
(q) Extension of benefits to dependents. Section 306 (50 U.S.C. App. 536) extends the benefits to section 300 through 305 to dependents of a captive.
(r) Real and personal property taxes. Section 500 (50 U.S.C. App. 560) forbids sale of property, except upon court leave, to enforce collection of taxes or assessments (other than taxes on income) on personal property or real property owned and occupied by the captive or dependents thereof at the commencement of captivity and still occupied by the captive’s dependents or employees. The court may stay proceedings for a period not more than 6 months after termination of captivity. When by law such property may be sold to enforce collection, the captive will have the right to redeem it within 6 months after termination of captivity. Unpaid taxes or assessments bear interest at 6 percent.
(s) Income taxes. Section 513 provides for deferment of payment of income taxes.
(t) Certification of captive. Section 601 provides that a certificate signed by the agency head shall be prima facie evidence that the person named has been a captive during the period specified in the certification.
(u) Interlocutory orders. Section 602 (50 U.S.C. App. 582) provides that a court may revoke an interlocutory order it has issued pursuant to any provision of the Soldiers’ and Sailors’ Civil Relief Act of 1940.
(v) Power of attorney. Section 701 (50 U.S.C. App. 591) provides that certain powers of attorney executed by a captive which expire by their terms after the person was captured shall be automatically extended for the period of captivity. Exceptions are made with respect to powers of attorney which by their terms clearly indicate they are to expire on the date specified irrespective of captive status. (Section 701 applies to American captives notwithstanding paragraph (c) thereof which states that it applies only to powers of attorney issued during the “Vietnam era”).
§ 192.23 Administration of benefits.
(a) The Director General of the Department of State or Agency Head will issue certifications or other documents when required for purposes of the Civil Relief Act.
(b) The Director General of the Department of State or Agency Head shall whenever possible promptly inform the chief legal officer of each U.S. State in which captives maintain residence of all persons determined to be captives eligible for assistance under this subpart.
Subpart D – Medical Benefits for Captive Situations
§ 192.30 Eligibility for benefits.
A person designated as a captive or family member of a captive under subpart A of this subchapter, shall be eligible for benefits under this subpart.
§ 192.31 Applicable benefits.
A person eligible for benefits under this part shall be eligible for authorized physical and mental health care at U.S. Government expense (through either or advancement or reimbursement), and for payment of other authorized expenses related to such care or for obtaining such care for any illness or injury, to the extent, as determined by the Secretary of State or Agency Head, that such care is incident to an individual being held captive and is not covered by –
(a) Any other Government health or medical program, including, but not limited to, the programs administered by the Secretary of Defense, the Secretary of Labor and the Secretary of Veteran Affairs; or
(b) Reimbursement by any private or Government health insurance or comparable plan. In the case of coverage by a private or Government health insurance plan, that carrier will be designated as the primary carrier, and benefits under this subpart will serve only to supplement expenses not paid by the primary carrier.
§ 192.32 Administration of benefits.
(a)(1) A person eligible due to hostile action abroad, who desires medical or health care under this subpart or any person acting on behalf thereof, shall submit an application to the Office of Medical Services, Department of State, Washington, DC 20520 (hereafter referred to as the “Office”). That office will handle and process medical applications and claims using the criteria in this subpart. Persons eligible in connection with domestic situations shall make application with the Agency Head, and the Agency Head shall apply the following procedures in a similar manner in administering medical benefits in domestic situations involving the respective agency.
(2) The applicant shall supply all relevant information, including insurance information, requested by the Director of the Office. An eligible person may also submit claims to the Office for payment for emergency care when there is not time to obtain prior authorization as prescribed by this paragraph.
(b) The Office shall evaluate all requests for care and claims for reimbursement and determine, on behalf of the Secretary of State, whether the care in question is authorized under § 192.31 of this subpart. The Office will authorize care or payment of care, when it determines the criteria of § 192.31 are met. Authorization shall include a determination as to the necessity and reasonableness of medical or health care.
(c) The Office will refer applicants eligible for benefits under other Government health programs to the Government agency administering those programs. Any portion of authorized care not provided or paid for under another Government program or private insurance will be reimbursed under this subpart, subject to a determination of the reasonableness of charges. Such determination shall be made by applying the fee schedule established by the Office of Workers’ Compensation Programs (OWCP), Department of Labor, which is used in paying medical benefits for work-related injuries to employees who are fully covered by OWCP.
(d) Eligible persons may obtain authorized care from any licensed facility or health care provider of their choice approved by the Office. To the extent possible, the Office will attempt to arrange for authorized care to be provided in a Government facility at no cost to the patient.
(e) Authorized care provided by a private facility or health care provider will be paid or reimbursed under this subpart to the extent that the Office determines that costs do not exceed reasonable and customary charges for similar care in the locality.
(f) All bills for authorized medical or health care covered by insurance shall be submitted to the patient’s insurance carrier for payment prior to submission to the Office for payment of the balance authorized by this part. The Office will request the health care providers to bill the insurance carrier and the Department of State for authorized care, rather than the patient.
(g) Eligible persons will be reimbursed by the Office for authorized travel to obtain an evaluation of their claim under paragraph (b) of this section and for other authorized travel to obtain medical or health care authorized by this subpart.
§ 192.33 Dispute.
Any dispute between the Office and eligible persons concerning whether medical or health care is required in a given case, whether required care is incident to the captivity, or whether the cost for any authorized care is reasonable and customary, shall be referred to the Medical Director, Department of State, for a determination. If the person bringing the claim is not satisfied with the decision of the Medical Director, the dispute shall be referred to a medical board composed of three physicians, one appointed by the Medical Director, one by the eligible person and the third by the first two members. A majority decision by the board shall be binding on all parties.
Subpart E – Educational Benefits for Captive Situations
§ 192.40 Eligibility for benefits.
(a) A spouse or unmarried dependent child (including an unmarried dependent stepchild or adopted child) under 21 years of age of a captive as determined under subpart A of the subchapter shall be eligible for benefits under 192.41 of this subpart. (Certain limitations apply, however, to persons eligible for direct assistance through other programs of the Department of Veterans’ Affairs under chapter 35 of title 38, United States Code).
(b) A Principal designated as a captive under subpart A of this subchapter, who intends to change jobs or careers because of the captive experience and who desires additional training for this purpose, shall be eligible for benefits under § 192.42 of this part, unless the Secretary of the Department of Veterans’ Affairs determines that such person is eligible to receive educational assistance for the additional training under either chapters 30, 32, 34, or 35, title 38 U.S.C.
§ 192.41 Applicable family benefits.
(a) An eligible spouse or child shall be paid (by advancement or reimbursement) for expenses incurred for subsistence, tuition, fees, supplies, books and equipment, and other educational expenses while attending an educational or training institution approved in accordance with procedures established by the Department of Veterans’ Affairs, which shall be comparable to procedures established pursuant to chapters 35 and 36 of title 38 U.S.C.
(b) Except as provided in paragraph (c) or (d) of this section, payments shall be available under this subsection for an eligible spouse or child for educational training which occurs –
(1) 90 days after the Principal is placed in a captive status, and
(i) Through the end of any semester or quarter which begins before the date on which the Principal ceases to be in a captive status, or
(ii) If the educational or training institution is not operated on a semester or quarter system, the earlier of the end of any course which began before such date or the end of the sixteen-week period following that date.
(c) In special circumstances and within the limitation of § 192.44, the Secretary of State, under the criteria and procedures set forth in § 192.43, may approve payments for education or training under this subsection which occurs after the date determined under paragraph (b) of this section.
(d) In the event a Principal dies and the death is determined by the Agency Head to be incident to that individual being a captive, payments shall be available under this subsection for education or training of a spouse or child of the Principal which occurs after the date of death, up to the maximum that may be authorized under § 192.44.
(e) Family benefits under this subsection shall not be available for any spouse or child who is eligible for assistance under chapter 35 of title 38 U.S.C., or similar assistance under any other law.
§ 192.42 Applicable benefits for captives.
(a) When authorized by the Agency Head, a Principal, following release from captivity, may be paid (by advancement or reimbursement) for expenses incurred for subsistence, tuition, fees, supplies, books and equipment, and other educational expenses while attending an educational or training institution approved in accordance with procedures established pursuant to chapter 35 and 36 of title 38 U.S.C. Payments shall be available under this subsection for education or training which occurs on or before –
(1) The end of any semester or quarter (as appropriate) which begins before the date which is 10 years after the day on which the Principal ceases to be in a captive status, or
(2) If the educational or training institution is not operated on a semester or quarter system, the earlier of the end of any course which began before such date or the end of the sixteen-week period following that date.
(b) A person eligible for benefits under this subsection shall not be required to separate from Government service in order to undertake the training or education. However, no educational assistance allowance shall be paid to any eligible person who is attending a course of education or training paid for under the Government Employees’ Training Act and whose full salary is being paid to such person while so training.
§ 192.43 Administration of benefits.
(a) Any person desiring benefits under this part, shall apply in writing to the Director General of the Foreign Service, Department of State, Washington, DC 20502. The application shall specify the benefits desired and the basis of eligibility for those benefits. The Director General of the Foreign Service, on behalf of the Secretary of State, shall make determinations of eligibility for benefits under this part, and shall forward certified applications to the Department of Veterans’ Affairs and advise the applicant of the name and address of the office in the Department of Veterans’ Affairs that will counsel the eligible persons on how to obtain the benefits that have been approved. Persons whose applications are disapproved shall be advised in writing of the reason for the disapproval. Applications for foreign service nationals and their dependents shall be made with the Office of Foreign Service National Personnel, Department of State. That office will handle the administrative details and benefits using the criteria specified in this subchapter.
(b) The Department of Veterans’ Affairs shall provide the same level and kind of assistance, including payments (by advancement or reimbursement) for authorized expenses up to the same maximum amounts, to spouses and children of captives, and to Principals following their release from captivity as it does to eligible spouses and children of veterans and to eligible veterans, respectively, under chapters 35 and 36 of title 38 U.S.C. The Department of Veterans’ Affairs shall, under procedures it has established to administer section 1724 of title 38, U.S.C., discontinue assistance for any individual whose conduct or progress is unsatisfactory under standards consistent with those established pursuant to such section 1724.
(c) An Advisory Board shall be established to advise on eligibility for benefits under paragraphs (c) and (d) of § 192.41. The Board shall be composed of the Under Secretary of State for Management as Chair, the Director of the Office of Medical Services of the Department of State, the Executive Director of the regional bureau of the Department of State in whose region the relevant hostile action occurred, the Director of Personnel or other designee of the applicable employing agency, and a representative of the Department of Veterans’ Affairs designated by the Secretary.
(d) If an application is received from a spouse or child for extended training under § 192.41(c), the Director General of the Foreign Service of the Department of State shall determine with the advice of the Advisory Board whether the Principal, following release from captivity, is incapacitated by the captive experience –
(1) To the extent that he or she has not returned to full-time active duty and is unlikely to be able to resume the normal duties of his or her position or career, or
(2) In the event of a separation from Government service, that the Principal is unable to assume a comparable position or career, for at least six months from the date of release from captivity. If the Secretary makes such a determination, he or she may approve, within the limits of § 192.44, an application under § 192.41(c) for up to one year of education or training. If the Principal remains incapacitated, the Secretary may approve additional training or education up to the maximum authorized under 192.44.
§ 192.44 Maximum limitation on benefits.
(a) In no event may assistance be provided under this subpart for any individual for a period in excess of 45 months, or the equivalent thereof in part-time education or training.
(b) The eligibility of a spouse for benefits under paragraph (c) or (d) of § 192.41 shall expire on a date which is 10 years after the date of the release of the captive or the death of the captive while in captivity, respectively. The eligibility of a dependent child for benefits under § 192.41 (c) and (d) shall expire on the 21st birthday of such child.
Subpart F – Compensation for Disability or Death
§ 192.50 Eligibility for benefits.
(a)(1) The Federal Employees’ Compensation Act (5 U.S.C. 8101 et seq.) provides for medical coverage and the payment of compensation for wage loss and for permanent impairment of specified members and functions of the body incurred by employees as a result of an injury sustained while in the performance of their duties to the United States. The Office of Workers’ Compensation Programs (OWCP), Department of Labor, administers the program. All individuals employed by the U.S. Government as defined by 5 U.S.C. 8101(1) are eligible to apply for wage-loss and medical benefits under the FECA. Family members of such employees may apply for death benefits. An application must be made with OWCP by such individual or on behalf of such individuals, prior to the determination of eligibility or payment of any benefits under this subpart.
(2) In the case of foreign service national employees covered for work related injury or death under the local compensation plan established pursuant to 22 U.S.C. 3968, such applications should be filed with the organizational authority in the country of employment which provides such coverage. Benefit levels payable to foreign service national employees under this subpart shall be no less than comparable benefits payable to U.S. citizen employees under FECA. Eligibility determination and payment of supplemental benefits, if any, is the responsibility of the Director General of the Foreign Service for the State Department.
(b) Any death or disability benefit payment made under this section shall be reduced by the amount of any other death or disability benefits funded in whole or in part by the United States, except that the amount shall not be reduced below zero. The cash payment under § 192.11(b) of subpart B is excluded from the offset requirement.
(c) Compensation under this section may include payment (whether advancement or reimbursement) for any medical or health expenses relating to the death or disability involved to the extent that such expenses are not covered under subpart D of these regulations. Procedures of subpart D of these regulations shall apply in making such determinations.
§ 192.51 Death benefit.
(a) The Secretary of State or Agency Head may provide for payment, by the employing agency, of a death benefit to the surviving dependents of any eligible individual under § 192.1(a) who dies as a result of injuries caused by hostile action whose death was the result of the individual’s relationship with the Government.
(b) The death benefit payment for an employee shall be equal to one year’s salary at the time of death. Such death benefit is subject to the offset provisions under § 192.50(b) including the Federal Employees’ Compensation Act. The death benefit for an employee’s spouse and other eligible individuals under § 192.1(b) of subpart A shall be equal to one year’s salary of the principal at the time of death.
(c) A death benefit payment for an adult under this section shall be made as follows:
(1) First, to the widow or widower.
(2) Second, to the dependent child, or children in equal shares, if there is no widow or widower.
(3) Third, to the dependent parent, or dependent parents in equal shares, if there is no widow, widower, or dependent child.
(4) Fourth, to adult, non-dependent children in equal shares.
(d) A death benefit payment for a child under this section shall be made as follows: To the surviving parents or legal guardian. If there are no surviving parents or legal guardian, no payment shall be made.
(e) As used in this section – each of the terms “widow”, “widower”, and “parent” shall have the same meaning given such term by section 8101 of title 5, U.S.C.; “child” has the meaning given in § 192.3(b)(2).
§ 192.52 Disability benefits.
(a) Principals who qualify for benefits under § 192.1 and are employees of the U.S. Government are considered for disability payments under programs administered by the Office of Workers’ Compensation Programs (OWCP), Department of Labor, or in the case of foreign service national employees, the programs may be administered by either OWCP or the organizational authority in the country of employment which provides similar coverage under the local compensation plan established pursuant to 22 U.S.C. 3968. Normal filing procedures as specified by either OWCP or the local organizational authority which provides such coverage should be followed in determining eligibility. Duplicate benefits may not be received from both OWCP and the local organizational authority for the same claim. Additional benefits to persons qualifying for full FECA or similar benefits would not normally be payable under this subpart, except to foreign service national employees whose benefit levels are below comparable benefits payable to U.S. citizen employees under FECA. Foreign service national employees whose benefit levels are below comparable benefits payable to U.S. citizens under FECA may receive benefits under this subpart so that total benefits received are comparable to the benefits payable to U.S. citizen employees under FECA.
(b) Family members who do not qualify for either OWCP benefits or benefits from the organizational authority in the country of employment which provides similar coverage, and anyone eligible under § 192.1(a) who does not qualify for full benefits from OWCP, must file an application for disability benefits with the Office of Medical Services, Department of State, for a determination of eligibility under this subpart, if connected with hostile action abroad. Applications made in connection with hostile action in domestic situations will be directed to the Agency Head. Such applications for disability payments will be considered using the same criteria for determination as established by OWCP.
(c) Family members who are determined to be disabled by the Office of Medical Services, or Agency Head using the OWCP criteria, are eligible to receive a lump-sum payment based on the following guidelines:
(1) Permanent total disability rate. A lump-sum payment equal to two year’s salary of the Principal at the time of the qualifying incident.
(2) Temporary total disability rate. A lump-sum payment computed at 66
(3) Partial disability rate. A lump-sum payment authorized in accordance with 5 U.S.C. 8106, equal to 66
(4) Special loss schedule. In addition to the temporary disability benefits payable in accordance with this subsection, if there is permanent disability involving the loss, or loss of use, of a member or function of the body or involving disfigurement, a lump-sum payment may be authorized at the rate of 25 percent of the payment authorized in accordance with the schedule and procedures in 5 U.S.C. 8107 and 20 CFR 10.304. The Director General of the Foreign Service of State or the Agency Head, may at their discretion, authorize payments under this subpart in addition to payments for those organs and members of the body specified in 5 U.S.C. 8107 and in 20 CFR 10.304. The provisions of 20 CFR part 10, subpart D, which prevent the payment of disability compensation and scheduled compensation simultaneously, shall not apply to these regulations.
SUBCHAPTER U – INTERNATIONAL COMMERCIAL ARBITRATION
PART 194 – INTER-AMERICAN COMMERCIAL ARBITRATION COMMISSION RULES OF PROCEDURE
§ 194.1 Authority and scope of application.
In accordance with the authority in chapter III of the Federal Arbitration Act (9 U.S.C. 306), the Department of State has determined that the amended Rules of Procedures of the Inter-American Commercial Arbitration Commission (IACAC) should become effective in the United States and will come into force on April 1, 2002, at the same time as for all states party to the Inter-American Convention on International Commercial Arbitration. The IACAC’s amended Rules of Procedure set forth the procedures for the initiation and conduct of arbitration of certain international commercial disputes to which the Inter-American Convention on International Commercial Arbitration applies. The amended Rules of Procedure are set out in full in appendix A to this part.
Appendix A to Part 194 – Inter-American Commercial Arbitration Commission Rules of Procedure (As Amended April 1, 2002)
1. Where the parties to a contract have agreed in writing that disputes in relation to that contract shall be referred to arbitration under the IACAC Rules of Procedure, then such disputes shall be settled in accordance with these Rules subject to such modification as the parties may agree in writing and the IACAC may approve.
2. These Rules shall govern the arbitration, except that where any such rule is in conflict with any provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail.
1. For the purposes of these rules, any notice, including a notification, communication or proposal, is deemed to have been received if it is physically delivered to the addressee in person or via fax, telex or any other means agreed to by the parties, or if it is delivered at his habitual residence, place of business or mailing address, or, if none of these can be found after making reasonable inquiry, then at the addressee’s last known habitual residence or at his last known place of business. Notice shall be deemed to have been received on the day it is so delivered by any of the means stated in these rules.
2. For the purposes of calculating a period of time under these rules, such period shall begin to run on the day following the day when a notice, notification, communication or proposal is received. If the last day of such period is an official holiday or a non-business day at the residence or place of business of the addressee, the period is extended until the first business day which follows. Official holidays or non-business days occurring during the running of the period of time are included in calculating the period.
1. The party initiating recourse to arbitration (hereinafter referred to as the “claimant”) shall give to the other party (hereinafter referred to as the “respondent”) a notice requesting arbitration and shall provide a copy to the Director General of the IACAC, either directly or through the IACAC National Section if one exists in his country of domicile.
2. Arbitral proceedings shall be deemed to commence on the date on which the notice of arbitration is received by the respondent.
3. The request for arbitration shall at least include the following:
(a) A request that the dispute be submitted to arbitration;
(b) The names and addresses of the parties;
(c) A copy of the arbitration clause or the separate arbitration agreement;
(d) A reference to the contract out of which, or in relation to which, the dispute has arisen, and a copy thereof if the claimant deems it necessary;
(e) The general nature of the claim and an indication of the amount involved, if any;
(f) The relief or remedy sought;
(g) If three arbitrators are to be appointed, designation of one arbitrator, as referred to in Article 5, paragraph 3.
4. The request for arbitration may also include the statement of claim referred to in Article 15.
5. Upon receipt of the notice of arbitration, the Director General of the IACAC or the IACAC National Section shall communicate with all parties with respect to the arbitration and shall acknowledge the commencement of the arbitration.
The parties may be represented or assisted by persons of their choice. The names and addresses of such persons must be communicated in writing to the other party; such communication must specify whether the appointment is being made for purposes of representation or assistance.
1. If the parties have not otherwise agreed, three arbitrators shall be appointed.
2. When the parties have agreed that the dispute will be resolved by a single arbitrator, he may be appointed by the mutual agreement of the parties. If the parties have not done so within thirty (30) days from the date on which the notice of arbitration is received by the respondent, the arbitrator will be designated by the IACAC.
3. If three arbitrators are to be appointed, each party shall appoint one arbitrator. The two arbitrators thus appointed shall choose the third arbitrator, who will act as the presiding arbitrator of the tribunal.
4. If within thirty (30) days after receipt of the claimant’s notification of the appointment of an arbitrator, the other party has not notified the first party with a copy to the Director General of the IACAC either directly or through the IACAC National Section if one exists in his country of domicile, of the arbitrator he has appointed, the arbitrator will be designated by the IACAC.
5. If within thirty (30) days after the appointment of the second arbitrator, the two arbitrators have not agreed on the choice of the presiding arbitrator, the presiding arbitrator will be appointed by the IACAC.
6. In making appointments, the IACAC shall have regard to such considerations as are likely to secure the appointment of independent and impartial arbitrators, and shall also take into account the advisability of appointing an arbitrator of a nationality other than the nationalities of the parties.
7. The IACAC may request from either party any information it deems necessary in order to discharge its functions.
A prospective arbitrator shall disclose to those who approach him in connection with his possible appointment any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, once appointed or chosen, shall disclose such circumstances to the parties and to the IACAC, if appointed by the IACAC, unless they have already been informed by him of these circumstances.
1. Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence.
2. A party may challenge the arbitrator appointed by him only for reasons of which he becomes aware after the appointment has been made.
1. A party who intends to challenge an arbitrator shall send notice of his challenge within fifteen days after the appointment of the challenged arbitrator has been notified to the challenging party or within fifteen days after the circumstances mentioned in Articles 6 and 7 became known to that party.
2. The challenge shall be notified to the other party, to the arbitrator who is challenged and to the other members of the arbitral tribunal and to the Director General of the IACAC. The notification shall be in writing and shall state the reasons for the challenge.
3. When an arbitrator has been challenged by one party, the other party may agree to the challenge. The arbitrator may also, after the challenge, withdraw from his office. In neither case does this imply acceptance of the validity of the grounds for the challenge. In both cases the procedure provided in article 5 shall be used in full for the appointment of the substitute arbitrator, even if during the process of appointing the challenged arbitrator a party had failed to exercise his right to appoint or to participate in the appointment.
1. If the other party does not agree to the challenge and the challenged arbitrator does not withdraw, the decision on the challenge will be made by the IACAC.
2. If the IACAC sustains the challenge, a substitute arbitrator shall be appointed or chosen pursuant to the procedure applicable to the appointment or choice of an arbitrator as provided in these rules.
1. In the event of the death or resignation of an arbitrator during the course of the arbitral proceedings, a substitute arbitrator shall be appointed or chosen pursuant to the procedure applicable to the appointment or choice of the arbitrator being replaced.
2. In the event that an arbitrator fails to fulfill his functions or in the event of the de jure or de facto impossibility of performing his function, or if the IACAC determines that there are sufficient reasons to accept the resignation of an arbitrator, the procedure in respect of the challenge and replacement of an arbitrator as provided in the preceding articles shall apply.
3. If an arbitrator on a three-person tribunal does not participate in the arbitration, the two other arbitrators shall have the power in their sole discretion to continue the arbitration and make any decision, ruling or award, notwithstanding the refusal of the third arbitrator to participate. In deciding whether to continue the arbitration or to render any decision, ruling or award, the two other arbitrators shall take into account the stage of the arbitration proceedings, the reasons, if any, stated by the third arbitrator for not participating, as well as such other matters they consider appropriate in the circumstances of the case. If the two arbitrators decide not to continue the arbitration without the participation of the third arbitrator, the IACAC on proof satisfactory to it shall declare the office vacant, and the party that initially appointed him shall proceed to appoint a substitute arbitrator within thirty (30) days following the vacancy declaration. If the designation is not made within the stated term, then the substitute arbitrator will be appointed by the IACAC.
If under Articles 8 to 10 the sole or presiding arbitrator is replaced, any hearings held previously shall be repeated; if any other arbitrator is replaced, such prior hearings may be repeated at the discretion of the arbitral tribunal.
1. Subject to these rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case.
2. If either party so requests at any stage of the proceedings, the arbitral tribunal shall hold hearings for the presentation of evidence by witnesses, including expert witnesses, or for oral argument. In the absence of such a request, the arbitral tribunal shall decide whether to hold such hearings or whether the proceedings shall be conducted on the basis of documents and other evidence.
3. All documents or information supplied to the arbitral tribunal by one party shall at the same time be communicated by that party to the other party.
1. If the parties have not reached an agreement regarding the place of arbitration, the place of arbitration may initially be determined by the IACAC, subject to the power of the tribunal to determine finally the place of arbitration within sixty (60) days following the appointment of the last arbitrator. All such determinations shall be made having regard for the contentions of the parties and the circumstances of the case.
2. Notwithstanding the foregoing, the tribunal may meet in any place it may deem appropriate to hold hearings, hold meetings for consultation, hear witnesses, or inspect property or documents. The parties shall be given sufficient written notice to enable them to be present at any such proceeding.
1. Subject to an agreement by the parties, the arbitral tribunal shall, promptly after its appointment, determine the language or languages to be used in the proceedings. This determination shall apply to the statement of claim, the statement of defense, and any further written statements and, if oral hearings take place, to the language or languages to be used in such hearings.
2. The arbitral tribunal may order that any documents annexed to the statement of claim or statement of defense, and any supplementary documents or exhibits submitted in the course of the proceedings, delivered in their original language, shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.
1. Unless the statement of claim was contained in the request for arbitration, within a period of time to be determined by the arbitral tribunal, the claimant shall communicate his statement of claim in writing to the respondent and to each of the arbitrators, with a copy to the IACAC. A copy of the contract, and of the arbitration agreement if not contained in the contract, shall be annexed thereto.
2. The statement of claim shall include the following particulars:
(a) The names and addresses of the parties;
(b) A statement of the facts supporting the claim;
(c) The points at issue;
(d) The relief or remedy sought.
The claimant may annex to his statement of claim all documents he deems relevant or may add a reference to the documents or other evidence he will submit.
1. Within a period of time to be determined by the arbitral tribunal, the respondent shall communicate his statement of defense in writing to the claimant and to each of the arbitrators, with a copy to the IACAC.
2. The statement of defense shall reply to the particulars (b), (c) and (d) of the statement of claim (Article 15, paragraph 2). The respondent may annex to his statement the documents on which he relies for his defense or may add a reference to the documents or other evidence he will submit.
3. In his statement of defense, or at a later stage in the arbitral proceedings if the arbitral tribunal decides that the delay was justified under the circumstances, the respondent may make a counterclaim arising out of the same contract, or rely on a claim arising out of the same contract for the purpose of a set-off.
4. The requirements provided in Article 15, paragraph 2, of these Rules shall apply to both any counterclaim or to any claim presented for the purposes of a set-off.
During the course of arbitral proceedings either party may amend or supplement his claim or defense unless the arbitral tribunal considers it inappropriate to allow such amendment, having regard to the delay in making it or prejudice to the other party or any other circumstances. However, a claim may not be amended in such a manner that the amended claim falls outside the scope of the arbitration clause or separate arbitration agreement.
1. The arbitral tribunal shall have the power to rule on objections that it has no jurisdiction, including any objection with respect to the existence or validity of the arbitration clause or of the separate arbitration agreement.
2. The arbitral tribunal shall have the power to determine the existence or the validity of the contract of which an arbitration clause or an arbitration agreement forms a part.
For the purposes of this Article, an arbitration clause that forms part of a contract and that provides for arbitration under these rules shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause or the arbitration agreement.
3. A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than in the statement of defense or, with respect to a counterclaim, in the reply to the counterclaim.
4. In general, the arbitral tribunal should rule on a plea concerning its jurisdiction as a preliminary question. However, the arbitral tribunal may proceed with the arbitration and rule on such a plea in its final award.
The arbitral tribunal shall decide which further written statements, in addition to the statement of claim and the statement of defense, shall be required from the parties or may be presented by them and shall fix the periods of time for communicating such statements.
The periods of time fixed by the arbitral tribunal for the communication of written statements (including the statement of claim and statement of defense) should not exceed forty-five days. However, the arbitral tribunal may extend the time limits if it concludes that an extension is justified.
1. Each party shall have the burden of proving the facts relied on to support his claim or defense.
2. The arbitral tribunal may, if it considers it appropriate, require a party to deliver to the tribunal and to the other party, within such a period of time as the arbitral tribunal shall decide, a summary of the documents and other evidence that that party intends to present in support of the facts in issue set out in his statement of claim or statement of defense.
3. At any time during the arbitral proceedings the arbitral tribunal may require the parties to produce documents, exhibits or other evidence within such a period of time as the tribunal shall determine.
1. In the event of an oral hearing, the arbitral tribunal shall give the parties adequate advance notice of the date, time and place thereof.
2. If witnesses are to be heard, at least fifteen days before the hearing each party shall communicate to the arbitral tribunal and to the other party the names and addresses of the witnesses he intends to present, and the subject upon and the languages in which such witnesses will give their testimony.
3. The arbitral tribunal shall make arrangements for the translation of oral statements made at a hearing and for a record of the hearing if either is deemed necessary by the tribunal under the circumstances of the case, or if the parties have agreed thereto and have communicated such agreement to the tribunal at least fifteen days before the hearing.
4. Hearings shall be held in camera unless the parties agree otherwise. The arbitral tribunal may require the retirement of any witness or witnesses during the testimony of other witnesses. The arbitral tribunal is free to determine the manner in which witnesses are examined.
5. Evidence of witnesses may also be presented in the form of written statements signed by them.
6. The arbitral tribunal shall determine the admissibility, relevance, materiality and weight of the evidence offered.
1. At the request of either party, the arbitral tribunal may take any interim measures it deems necessary in respect of the subject matter of the dispute, including measures for the conservation of the goods forming the subject matter in dispute, such as ordering their deposit with a third person or the sale of perishable goods.
2. Such interim measures may be established in the form of an interim award. The arbitral tribunal shall be entitled to require security for the costs of such measures.
3. A request for interim measures addressed by any party to a judicial authority shall not be deemed incompatible with the agreement to arbitrate, or as a waiver of that agreement.
1. The arbitral tribunal may appoint one or more experts to report to it, in writing, on specific issues to be determined by the tribunal. A copy of the expert’s terms of reference, established by the arbitral tribunal, shall be communicated to the parties.
2. The parties shall give the expert any relevant information or produce for his inspection any relevant document or goods that he may require of them. Any dispute between a party and such expert as to the relevance of the required information or production shall be referred to the arbitral tribunal for decision.
3. Upon receipt of the expert’s report, the arbitral tribunal shall communicate a copy of the report to the parties, who shall be given the opportunity to express, in writing, their opinion on the report. A party shall be entitled to examine any document on which the expert has relied in his report.
4. At the request of either party the expert, after delivery of the report, may be heard at a hearing where the parties shall have the opportunity to be present and to interrogate the expert. At this hearing either party may present expert witnesses in order to testify on the points at issue. The provisions of Article 22 shall be applicable to such proceedings.
1. If, within the period of time fixed by the arbitral tribunal, the claimant has failed to communicate his claim without showing sufficient cause for such failure, the arbitral tribunal shall issue an order for the termination of the arbitral proceedings.
2. If one of the parties, duly notified under these rules, fails to appear at a hearing without showing sufficient cause for such failure, the arbitral tribunal may proceed with the arbitration.
3. If one of the parties, duly invited to produce documentary evidence, fails to do so within the established period of time, without showing sufficient cause for such failure, the arbitral tribunal may make the award on the evidence before it.
1. The arbitral tribunal may inquire of the parties if they have any further proofs to offer or witnesses to be heard or submissions to make and, if there are none, it may declare the hearings closed.
2. The arbitral tribunal may, if it considers it necessary owing to exceptional circumstances, decide, on its own motion or upon application of a party, to reopen the hearings at any time before the award is made.
A party who knows that any provision of, or requirement under, these rules has not been complied with and yet proceeds with the arbitration without promptly stating his objection to such non-compliance shall be deemed to have waived his right to object.
The arbitral tribunal shall adopt its decisions by a majority vote. When there is no majority, the decision shall be made by the president of the tribunal.
1. In addition to making a final award, the arbitral tribunal shall be entitled to make interim, interlocutory, or partial awards.
2. The award shall be made in writing and shall be final and binding on the parties and subject to no appeal. The parties undertake to carry out the award without delay.
3. The arbitral tribunal shall state the reasons upon which the award is based, unless the parties have agreed that no reasons are to be given.
4. An award shall be signed by the arbitrators and it shall contain the date on which and the place where the award was made, which shall be the place designated in Article 13. Where there are three arbitrators and one of them fails to sign, the award shall state the reasons for the absence of the signature.
5. The award may be made public only with the consent of both parties.
6. Copies of the award signed by the arbitrators shall be communicated to the parties by the arbitral tribunal.
7. If the arbitration law of the country where the award is made requires that the award be filed or registered by the arbitral tribunal, the tribunal shall comply with this requirement within the period of time required by law.
1. The arbitral tribunal shall apply the law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules that it considers applicable.
2. The arbitral tribunal shall decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorized the arbitral tribunal to do so and if the law applicable to the arbitral procedure permits such arbitration.
3. In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.
1. If, before the award is made, the parties agree on a settlement of the dispute, the arbitral tribunal shall either issue an order for the termination of the arbitral proceedings or, if requested by both parties and accepted by the tribunal, record the settlement in the form of an arbitral award on agreed terms. The arbitral tribunal is not obliged to give reasons for such an award.
2. If, before the award is made, the continuation of the arbitral proceedings becomes unnecessary or impossible for any reason not mentioned in paragraph 1, the arbitral tribunal shall inform the parties of its intention to issue an order for the termination of the proceedings. The arbitral tribunal shall have the power to issue such an order unless a party raises justifiable grounds for objection.
3. Copies of the order for termination of the arbitral proceedings or of the arbitral award on agreed terms, signed by the arbitrators, shall be communicated by the arbitral tribunal to the parties. Where an arbitral award on agreed terms is made, the provisions of Article 29, paragraphs 2 and 4, shall apply.
1. Within thirty days after the receipt of the award, either party may request that the arbitral tribunal give an interpretation of the award. The tribunal shall notify the other party or parties to the proceedings of such request.
2. The interpretation shall be given in writing within forty-five days after the receipt of the request. The interpretation shall form part of the award and the provisions of Article 29, paragraphs 2 to 7, shall apply.
1. Within thirty days after the receipt of the award, either party may request the arbitral tribunal, which shall notify the other party, to correct in the award any errors in computation, any clerical or typographical errors, or any errors of similar nature. The arbitral tribunal may within thirty days after the communication of the award make such corrections on its own initiative.
2. Such corrections shall be in writing, and the provisions of Article 29, paragraphs 2 to 7, shall apply.
1. Within thirty days after the receipt of the award, either party may request the arbitral tribunal, which shall notify the other party, to make an additional award as to claims presented in the arbitral proceedings but omitted from the award.
2. If the arbitral tribunal considers the request for an additional award to be justified and considers that the omission can be rectified without any further hearings or evidence, it shall complete its award within sixty days after the receipt of the request.
3. When an additional award is made, the provisions of Article 29, paragraphs 2 to 7, shall apply.
The arbitral tribunal shall fix the costs of arbitration in its award. The term “costs” includes only:
(a) The fees of the arbitral tribunal, to be stated separately as to each arbitrator and to be fixed by the tribunal itself in accordance with Article 36;
(b) The travel and other expenses incurred by the arbitrators;
(c) The costs of expert advice and of other assistance required by the arbitral tribunal;
(d) The travel and other expenses of witnesses to the extent such expenses are approved by the arbitral tribunal;
(e) The costs for legal representation and assistance of the successful party if such costs were claimed during the arbitral proceedings, and only to the extent that the arbitral tribunal determines that the amount of such costs is reasonable;
(f) The administrative fee and other service charges of the IACAC; which shall be set by the Arbitrator Nominating Committee of the IACAC in accordance with the schedule in effect at the time of the commencement of the arbitration. The committee may set a provisional fee when the proceedings are instituted and the final amount before the award is rendered, so that such amount may be taken into account by the tribunal when rendering its award.
1. The fees of the arbitral tribunal and the administrative fees for the IACAC shall be set in accordance with the schedule in effect at the time of commencement of the arbitration. The fees shall be calculated on the basis of the amount involved in the arbitration; if that amount cannot be determined, the fees shall be set discretionally.
2. The amount between the maximum and minimum range in the schedule shall be set in accordance with the nature of the dispute, the complexity of the subject matter and any other relevant circumstances of the case.
1. The costs of arbitration shall be borne by the unsuccessful party. However, the arbitral tribunal may apportion each of such costs between the parties if it determines that apportionment is reasonable, taking into account the circumstances of the case.
2. When the arbitral tribunal issues an order for the termination of the arbitral proceedings or makes an award on agreed terms, it shall fix the costs of arbitration referred to in Article 35 in the text of that order or award.
3. No additional fees may be charged by an arbitral tribunal for interpretation or correction or completion of its award under Articles 32 to 34.
1. The arbitral tribunal, on its establishment, or the Arbitrator Nominating Committee of the IACAC within its purview, may request each party to deposit an equal amount as an advance for the costs referred to in Article 35, paragraphs (a), (b), (c) and (f).
2. During the course of the arbitral proceedings the arbitral tribunal may request supplementary deposits from the parties.
3. When a party so requests, the arbitral tribunal shall fix the amounts of any deposits or supplementary deposits only after consultation with the IACAC, which may make any comments to the arbitral tribunal which it deems appropriate concerning the amounts of such deposits and supplementary deposits.
4. If the required deposits are not paid in full within thirty days after the receipt of the request, the arbitral tribunal shall so inform the parties in order that one or another of them may make the required payment. Should one of the parties fail to pay its deposits in full, the other party may do so in its stead. If payment in full is not made, the arbitral tribunal may order the suspension or termination of the arbitral proceedings.
5. After the award has been made, the arbitral tribunal shall render an accounting to the parties of the deposits received and return any unexpended balance to the parties.
Any disputes arising under contracts that stipulate resolution of such disputes pursuant to the IACAC Rules of Procedure and that have not been submitted to an arbitral tribunal as of the date on which these rules enter into effect shall be subject to these rules in their entirety.
PART 196 – THOMAS R. PICKERING FOREIGN AFFAIRS/GRADUATE FOREIGN AFFAIRS FELLOWSHIP PROGRAM
§ 196.1 What is the Fellowship Program?
The Thomas R. Pickering Foreign Affairs/Graduate Foreign Affairs Fellowship Program is designed to attract outstanding men and women at the undergraduate and graduate educational levels for the purpose of increasing the level of knowledge and awareness of and employment with the Foreign Service, consistent with 22 U.S.C. 3905. The Program develops a source of trained men and women, from academic disciplines representing the skill needs of the Department, who are dedicated to representing the United States’ interests abroad.
§ 196.2 How is the Fellowship Program administered?
(a) Eligibility. Eligibility will be determined annually by the Department of State and publicized nationwide. Fellows must be United States citizens.
(b) Provisions. The grant awarded to each individual student shall not exceed $250,000 for the total amount of time the student is in the program. Fellows are prohibited from receiving grants from one or more Federal programs, which in the aggregate would exceed the cost of his or her educational expenses. Continued eligibility for participation is contingent upon the Fellow’s ability to meet the educational requirements set forth in paragraph (c) of this section.
(c) Program requirements. Eligibility for participation in the program is conditional upon successful completion of pre-employment processing specified by the Department of State, including background investigation, medical examination, and drug testing. As a condition of eligibility for continued receipt of grant funds, fellows are required to complete prescribed coursework and maintain a satisfactory grade point average as determined by the Department of State. Fellows are also required to accept employment with the Department of State’s Foreign Service upon successful completion of the program, and Foreign Service entry requirements. Fellows must continue employment for a period of one and one-half years for each year of education funded by the Department of State.
§ 196.3 Grants to post-secondary education institutions.
The Department of State may make a grant to a post-secondary education institution for the purpose of increasing the level of knowledge and awareness of and interest in employment with the Foreign Service, consistent with 22 U.S.C. 3905, not to exceed $1,000,000, unless otherwise authorized by law.
§ 196.4 Administering office.
The Department of State’s Bureau of Human Resources, Office of Recruitment is responsible for administering the Thomas R. Pickering Foreign Affairs/Graduate Foreign Affairs Fellowship Program and grants to post-secondary institutions and may be contacted for more detailed information.
PARTS 197-199 [RESERVED]
CHAPTER II – AGENCY FOR INTERNATIONAL DEVELOPMENT
PART 200 – EMPLOYEE RESPONSIBILITIES AND CONDUCT
The regulations governing the responsibilities and conduct of employees of the Agency for International Development are codified as part 2635 of title 5, prescribed by the Office of Government Ethics.
PART 201 – RULES AND PROCEDURES APPLICABLE TO COMMODITY TRANSACTIONS FINANCED BY USAID
Subpart A – Definitions and Scope of This Part
§ 201.01 Definitions.
As used in this part, the following terms shall have the meanings indicated below:
(a) The Act means the Foreign Assistance Act of 1961, as amended from time to time.
(b) USAID means the U.S. Agency for International Development or any successor agency, including when applicable, each USAID Mission abroad.
(c) USAID Geographic Code means a code in the USAID Geographic Code Book which designates a country, a group of countries, or an otherwise defined area. Principal USAID geographic codes are described in § 201.11(b)(4) of this part.
(d) USAID/W means the USAID in Washington, DC 20523, including any office thereof.
(e) Approved applicant means the individual or organization designated by the borrower/grantee to establish credits with banks in favor of suppliers or to instruct banks to make payments to suppliers, and includes any agent acting on behalf of such approved applicant.
(f) Bank means a banking institution organized under the laws of the United States, or any State, commonwealth, territory, or possession thereof, or the District of Columbia.
(g) Borrower/grantee means the government of any cooperating country, or any agency, instrumentality or political subdivision thereof, or any private entity, to which USAID directly makes funds available by loan or grant.
(h) Commission means any payment or allowance made or agreed to be made by a supplier to any person for the contribution which that person has made to securing the sale for the supplier or which the person makes to securing similar sales on a continuing basis for the supplier.
(i) Commodity means any material, article, supply, goods, or equipment.
(j) Commodity Approval Application means the Application for Approval of Commodity Eligibility (Form AID 11) which appears as appendix B to this part 201.
(k) Commodity-related services means delivery services and/or incidental services.
(l) Cooperating country means the country receiving the USAID assistance subject to provisions of this part 201.
(m) Delivery means the transfer to, or for the account of, an importer of the right to possession of a commodity, or, with respect to a commodity-related service, the rendering to, or for the account of, an importer of any such service.
(n) Delivery service means any service customarily performed in a commercial export transaction which is necessary to effect a physical transfer of commodities to the cooperating country. Examples of such services are the following: export packing, local drayage in the source country (including waiting time at the dock), ocean and other freight, loading, heavy lift, wharfage, tollage, switching, dumping and trimming, lighterage, insurance, commodity inspection services, and services of a freight forwarder. Delivery services may also include work and materials necessary to meet USAID marking requirements.
(o) Implementing document means any document, including a letter of commitment, issued by USAID which authorizes the use of USAID funds for the procurement of commodities and/or commodity related services and which specifies conditions which will apply to such procurement.
(p) Importer means any person or organization, governmental or otherwise, in the cooperating country who is authorized by the borrower/grantee to use USAID funds under this Regulation for the procurement of commodities, and includes any borrower/grantee who undertakes such procurement.
(q) Incidental services means the installation or erection of USAID-financed equipment, or the training of personnel in the maintenance, operation and use of such equipment.
(r) Mission means the USAID Mission or representative in a cooperating country.
(s) Non-vessel-operating common carrier (NVOCC) under Section 3(17) of the Shipping Act of 1984 means a common carrier pursuant to Section 3(6) of such Act that does not operate any of the vessels by which the ocean transportation is provided, and is a shipper in its relationship with an ocean carrier.
(t) Purchase contract means any contract or similar arrangement under which a supplier furnishes commodities and/or commodity-related services financed under this part.
(u) Responsible bidder is one who has the technical expertise, management capability, workload capacity, and financial resources to perform the work successfully.
(v) Responsive bid is a bid that complies with all the terms and conditions of the invitation for bids without material modification. A material modification is a modification which affects the price, quantity, quality, delivery or installation date of the commodity or which limits in any way responsibilities, duties, or liabilities of the bidder or any rights of the importer or USAID as any of the foregoing have been specified or defined in the invitation for bids.
(w) Schedule B means the “Schedule B, Statistical Classification of Domestic and Foreign Commodities Exported from the United States” issued and amended from time to time by the U.S. Bureau of the Census, Department of Commerce and available as stated in 15 CFR 30.92.
(x) Source means the country from which a commodity is shipped to the cooperating country, or the cooperating country if the commodity is located therein at the time of the purchase. Where, however, a commodity is shipped from a free port or bonded warehouse in the form in which received therein, source means the country from which the commodity was shipped to the free port or bonded warehouse.
(y) State means the District of Columbia or any State, commonwealth, territory or possession of the United States.
(z) Supplier means any person or organization, governmental or otherwise, who furnishes commodities and/or commodity-related services financed under this part 201.
(aa) Supplier’s Certificate means Form AID 282 “Supplier’s Certificate and Agreement with the Agency for International Development,” including the “Invoice and Contract Abstract” on the reverse of such form (which appears as appendix A to this part 201), or any substitute form which may be prescribed in the letter of commitment or other pertinent implementing document.
(bb) United States means the United States of America, any State(s) of the United States, the District of Columbia, and areas of U.S. associated sovereignty, including commonwealths, territories and possessions.
(cc) Vessel operating common carrier (VOCC) means an ocean common carrier pursuant to section 3(18) of the Shipping Act of 1984 which operates the vessel by which ocean transportation is provided.
§ 201.02 Scope and application.
(a) The appropriate implementing documents will indicate whether and the extent to which this part 201 shall apply to the procurement of commodities or commodity-related services or both. Whenever this part 201 is applicable, those terms and conditions of this part will govern which are in effect on the date of issuance of the direct letter of commitment to the supplier; if a bank letter of commitment is applicable, the terms and conditions govern which are in effect on the date of issuance of an irrevocable letter of credit under which payment is made or is to be made from funds made available under the Act, or, if no such letter of credit has been issued, on the date payment instructions for payment from funds made available under the Act are received by the paying bank.
(b) The borrower/grantee is responsible for compliance with the applicable provisions of this part by importers and suppliers and for assuring that importers and suppliers are informed of the extent to which this part applies.
(c) Unless otherwise indicated, references in this part 201 to subparts or to sections relate to subparts or sections of this part 201.
§ 201.03 OMB approval under the Paperwork Reduction Act.
(a) OMB has approved the following information collection and recordkeeping requirements established by this part 201 (OMB Control No. 0412-0514, expiring July 31, 2000):
(b) USAID will use the information requested in these sections to verify compliance with statutory and regulatory requirements and to assist in the administration of USAID-financed commodity programs. The information is required from suppliers in order to receive payment for commodities or commodity-related services. The public reporting burden for this collection of information is estimated to average a half hour per response, including the time required for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to the Office of Procurement, Policy Division (M/OP/P), U.S. Agency for International Development, 1300 Pennsylvania Avenue, Washington, DC 20523-7801, and the Office of Management and Budget, Paperwork Reduction Project (0412-0514), Washington, DC 20503.
Subpart B – Conditions Governing the Eligibility of Procurement Transactions for USAID Financing
§ 201.10 Purpose.
This subpart sets forth requirements for USAID financing applicable to transactions for the procurement of commodities and/or commodity-related services.
§ 201.11 Eligibility of commodities.
To qualify for USAID financing, a commodity procurement transaction shall satisfy the following requirements:
(a) Description and condition of the commodity. The commodity shall conform to the description in the implementing document. Unless otherwise authorized by USAID/W in writing, the commodity shall be unused, and may not have been disposed of as surplus by any governmental agency.
(b) Source. The authorized source for procurement shall be a country or countries authorized in the implementing document by name or by reference to a USAID geographic code. The source and origin of a commodity must be an authorized source country. The applicable rules on source, origin and nationality for commodities and commodity-related services are in subparts (B), (C), and (F) of part 228 of this chapter.
(c) Date of shipping documents. The documents required as evidence of shipment under § 201.52(a)(4) shall show that the date of shipment was within the shipping period, if any, specified in the implementing document.
(d) Medium of transportation. Shipment shall not be effected:
(1) By a transportation medium owned, operated or under the control of any country not included within USAID Geographic Code 935; or
(2) Under any ocean or air charter which has not received prior approval by USAID/W, Office of Procurement (Transportation Division).
(e) Marine insurance. In accordance with the provisions of § 228.23 of this chapter, USAID may require that any USAID-financed commodity shipped to the cooperating country shall be insured against marine risks and that such insurance shall be placed in the United States with a company or companies authorized to do marine insurance business in a State of the United States.
(f) Timely submission of documents. All documents required under § 201.52 to be submitted by a supplier in order to receive payment or reimbursement shall be submitted to USAID under direct letters of commitment or to a designated bank under bank letters of credit on or before the terminal date specified in the letter of commitment or letter of credit, respectively.
(g) U.S. Treasury Department regulations. Procurement transactions shall comply with the requirements of the U.S. Treasury Department Foreign Assets, Sanctions, Transactions and Funds Control Regulations published in 31 CFR parts 500 through 599, as from time to time amended.
(h) Commodities shipped out of a free port or bonded warehouse. No commodity shipped out of a free port or bonded warehouse is eligible for USAID financing if it was shipped to the free port or bonded warehouse without compliance with the requirements set forth in paragraph (d)(1) of this section, or if it was shipped from the free port or bonded warehouse without compliance with the requirements set forth in paragraphs (d) (1) and (2) of this section.
(i) Purchase price. The purchase price for the commodity shall satisfy the requirements of subpart G.
(j) Purchases from eligible suppliers. Commodities procured with funds made available under this part 201 shall be purchased from eligible suppliers. The rules on the nationality of suppliers of commodities are in section 228.14 of this chapter.
(k) Determination of commodity eligibility. The commodity shall be approved in writing by USAID for each purchase transaction as eligible for USAID financing. Such approval shall be indicated on the Application for Approval of Commodity Eligibility (Form AID 11) submitted to USAID by the supplier.
§ 201.12 Eligibility of incidental services.
Incidental services may be financed under the same implementing document which makes funds available for the procurement of equipment only if:
(a) Such services are specified in the purchase contract relating to the equipment;
(b) The price satisfies the requirements of § 201.68;
(c) The portion of the total purchase contract price attributable to such services does not exceed 25 percent; and
(d) The supplier of such services, prior to approval of the USAID Commodity Approval Application, has neither been suspended or debarred by USAID under part 208 of this chapter, nor has been placed on the “Lists of Parties Excluded from Federal Procurement or Nonprocurement Programs,” published by the U.S. General Services Administration.
(e) The supplier of such services meets the requirements of § 228.25 of this chapter.
§ 201.13 Eligibility of delivery services.
(a) General. Delivery of USAID-financed commodities may be financed under the implementing document provided the delivery services meet the requirements of this section and the applicable provisions in part 228, subpart C of this chapter.
(b) Transportation costs. USAID will not finance transportation costs:
(1) For shipment beyond the point of entry in the cooperating country except when intermodal transportation service covering the carriage of cargo from point of origin to destination is used, and the point of destination, as stated in the carrier’s through bill of lading, is established in the carrier’s tariff; or
(2) On a transportation medium owned, operated or under the control of any country not included in Geographic Code 935; or
(3) Under any ocean or air charter covering full or part cargo (whether for a single voyage, consecutive voyages, or a time period) which has not received prior approval by USAID/W, Office of Procurement, Transportation Division); or
(4) Which are attributable to brokerage commissions which exceed the limitations specified in § 201.65(h) or to address commissions, dead freight, demurrage or detention.
(c) Inspection services. USAID will finance inspection of USAID-financed commodities when inspection is required by USAID, or in those cases where inspection is required by the importer and such inspection is specified in the purchase contract, performed by independent inspectors and is either customary in export transactions for the commodity involved or is necessary to determine conformity of the commodities to the contract. Section 228.24 of this chapter covers the nationality requirements for suppliers of inspection services.
(d) Marine insurance. (1) Unless otherwise authorized, USAID will finance premiums for marine insurance including war risk on USAID-financed commodities only if:
(i) The insurance is placed in a country included in the authorized Geographic Code: Provided, that if the authorized Geographic Code is any other than USAID Geographic Code 000, the cooperating country itself shall be recognized as an eligible source; and
(ii) Such insurance is placed either in accordance with the terms of the commodity purchase contract or on the written instructions of the importer; and
(iii) Insurance coverage relates only to the period during which the commodities are in transit to the cooperating country, except that it may include coverage under a warehouse-to-warehouse clause; and
(iv) The premiums do not exceed the limitations contained in § 201.68; and
(v) The insurance provides that loss payment proceeds shall be paid in U.S. dollars or other freely convertible currency.
(2) Within the meaning of § 201.11(e), as well as this paragraph, insurance is placed in a country only if payment of the insurance premium is made to, and the insurance policy is issued by, an insurance company office located in that country.
(e) Suspension and debarment. In order to be eligible for USAID financing, the costs of any delivery services must be paid to carriers, insurers, or suppliers of inspection services who, prior to approval of the USAID Commodity Approval Application, have neither been suspended nor debarred under USAID Regulation 8, 22 CFR part 208, nor included on the “Lists of Parties Excluded from Federal Procurement or Nonprocurement Programs” published by the U.S. General Services Administration.
§ 201.14 Eligibility of bid and performance bonds and guaranties.
The cost of any bid bond or guaranty posted by a successful bidder or of any performance bond or guaranty posted by a supplier is eligible for financing under the implementing document, provided that the bond or guaranty conforms to the requirements of the invitation for bids or the contract, as applicable, and to the extent that the principal amount of the bond or guaranty does not exceed the amount customary in international trade for the type of transaction and commodity involved. Bonds or guaranties may be payable in U.S. dollars, or a freely convertible currency or local currency, and shall be posted in favor of the purchaser. Nationality requirements for sureties, insurance companies or banks who issue bonds or guaranties under USAID-financed transactions are set forth in § 228.38(b) of this chapter.
§ 201.15 U.S. flag vessel shipping requirements.
(a) General requirements. Unless USAID determines that privately owned U.S. flag commercial ocean vessels are not available at fair and reasonable rates for such vessels:
(1) At least fifty percent (50%) of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers from each of two geographic areas – the U.S. and all other countries) of all goods financed by USAID which are transported on ocean vessels shall be transported on privately owned U.S. flag commercial vessels; and
(2) At least fifty percent (50%) of the gross freight revenue generated by all shipments of USAID-financed commodities which are transported to the territory of the borrower/grantee on dry cargo liners shall be paid to or for the benefit of privately owned U.S. flag commercial vessels.
(b) Methods of compliance. (1) Compliance with these requirements with respect to dry cargo liner vessels shall be achieved for the total of liner shipments made during the term of the loan or grant agreement. If USAID determines at any time during the term of the agreement that compliance may not be achieved, USAID may require that all subsequent shipments be made on U.S. flag liners until compliance is assured.
(2) Compliance with these requirements with respect to dry bulk carriers and tankers shall be achieved for each quantitative unit of cargo. A quantitative unit of cargo is the total tonnage of a commodity or commodities included in one invitation for bids or other solicitation of offers from ocean carriers for the transportation of cargo which may move in full shipload lots. USAID shall approve a charter or other contract of affreightment for a non-U.S. flag vessel only if USAID has determined that at least 50% of the quantitative unit will move on U.S. flag vessels, to the extent that such vessels are available at fair and reasonable rates for such vessels. U.S. flag dry cargo liners whose offers are responsive to the terms of the invitation for bids or other solicitation of vessels may be used for achieving compliance for the quantitative unit.
(c) Nonavailability of U.S. flag vessels. Upon application of the borrower/grantee or the supplier, USAID/W, Office of Procurement, Transportation Division, shall determine and advise the applicant whether or not privately owned U.S. flag vessels are available for any specific shipment of commodities at fair and reasonable rates. A determination that U.S. flag vessels are not available does not carry with it the authorization for USAID to finance freight on a vessel not otherwise authorized; this requires a separate waiver approval in accordance with § 201.13(b)(1)(ii).
(d) Responsibility. The borrower/grantee is responsible for compliance with the requirements of this section and for imposing upon subborrowers, contractors and importers such requirements regarding shipping arrangements with suppliers as will assure discharge of this responsibility.
(e) Privately owned U.S. flag commercial vessels. For purposes of this section the term “privately owned U.S. flag commercial vessels” shall not include any vessel which, subsequent to September 21, 1961, shall have been either built outside the U.S., rebuilt outside the U.S. or documented under any foreign registry until such vessel shall have been documented under the laws of the U.S. for a period of 3 years.
Subpart C – Procurement Procedures; Responsibilities of Importers
§ 201.20 Purpose.
This subpart prescribes procurement procedures which shall apply to an importer whenever a commodity procurement is to be financed by USAID subject to this part 201.
§ 201.21 Notice to supplier.
The importer is responsible for providing the supplier with the following information (either through the invitation for bids, the request for quotations or otherwise):
(a) Notice that the transaction is to be financed by USAID under this part 201;
(b) The identification number of the implementing document;
(c) All additional information prerequisite to USAID financing and contained in the instructions from the borrower/grantee to the importer (for example, eligible source of commodity, periods during which deliveries must be made, shipping provisions, and documentation requirements); and, where appropriate,
(d) Notice of the marking requirements in § 201.31(d), when the importer is the government of the cooperating country or any if its subdivisions or instrumentalities.
§ 201.22 Procurement under public sector procedures.
(a) General requirements. When the importer is the government of the cooperating country or any of its subdivisions, agencies or instrumentalities, all purchase contracts for commodities shall be awarded under public sector procedures in this section unless otherwise authorized by USAID. Such contracts shall be awarded on a competitive basis unless otherwise authorized by USAID under paragraph (g) of this section.
(b) Formal competitive bidding. Formal competitive bidding procedures shall be used for all procurements estimated to exceed $100,000 or the equivalent, exclusive of ocean or air transportation costs, except when other procedures are authorized in accordance with this section. Formal competitive bidding procedures may also be used for procurements under $100,000 at the option of the importer. Formal competitive bidding procedures include advertising the availability of an invitation for bids in accordance with paragraph (h) of this section, issuance of the invitation for bids, public opening of sealed bids, evaluation of bids, and award of the contract, except as provided in § 201.22(b)(3), to the lowest responsive bid by a responsible bidder.
(1) Contents of the invitation for bids. The invitation for bids and every attachment and amendment thereto shall be in the English language and shall be available to prospective suppliers free of charge unless otherwise authorized by USAID. The following minimum requirements are applicable:
(i) Statement of requirements. The invitation for bids shall state specifically that the formal competitive bidding procedures set forth in this § 201.22 apply. The terms and conditions of the procurement shall be clearly indicated, including any factors other than price to be used in the evaluation. Commodity specifications shall be stated in a non-restrictive manner and in sufficient detail to permit maximum response from prospective suppliers. The metric system of measurements shall be used for specifications unless USAID determines in writing that such use is impractical or is likely to cause significant inefficiencies or the loss of markets to U.S. firms.
(ii) Statement regarding submission of bids. The invitation for bids shall be appropriately numbered and state the complete physical address, as well as any post office box number, to which bids or offers are to be sent, the closing hour and date for submission and the date, hour and place of the public opening of the bids. If additional drawings, details, regulations or forms are necessary for submitting a bid, the invitation shall state where such material may be obtained.
(iii) Statement regarding this part 201. The invitation for bids shall expressly indicate the extent to which any resulting contract is subject to the requirements of this part 201.
(iv) Statement regarding late bids. The invitation for bids shall state that no bid received at the address designated in the invitation after the closing hour and date for submission will be considered for award unless its late arrival at that address is attributable solely to mishandling of the bid documents by the importer or any of its agents directly associated with receiving or processing the bids. In no case will the importer consider a bid which was not received at the place of public opening before the award was made.
(2) Handling bids. Bids received shall be held intact and sealed and shall be safeguarded against disclosure of contents prior to bid opening. The bids shall be opened publicly as specified in the bid invitation, and all properly submitted bids shall be considered. Direct submission of a bid by a prospective supplier, rather than through an agent or other representative of the supplier in the cooperating country, shall not be cause for rejection.
(3) Awards. Every award shall be made to that responsible bidder whose responsive bid is lowest in price. If any factor other than price is used in evaluating bids, each such factor shall be computed in accordance with the formula in the invitation for bids.
(c) Two-stage formal competitive bidding. Subject to the approval of USAID, two-stage formal competitive bidding may be used in the procurement of specialized equipment, where requirements are stated in performance-type specifications. Two-stage bidding involves a request for technical proposals for the equipment being purchased, submission of proposals without price information, discussions with the offerors as necessary to clarify proposals, followed by a request for priced bids for those proposals found to be fully acceptable following discussions between the offerors and the purchaser. The priced bids shall be publicly opened. Handling and award of the bids shall comply with paragraphs (b) (2) and (3) of this section.
(d) Competitive negotiation procedures. (1) If approved by USAID based on a written record of the reasons therefor, a competitive negotiation procedure may be used. Competitive negotiation procedures include advertising the availability of a request for quotations in accordance with paragraph (h) of this section, issuance of the request for quotations, receipt and evaluation of offers, negotiation (when appropriate), and award of the contract to the offeror submitting the most advantageous offer, price and other factors considered. Competitive negotiation procedures may be approved in the following circumstances:
(i) When it is impossible to develop adequate commodity specifications for use in an invitation for bids;
(ii) When price alone would not be an effective means of determining an award (i.e., when criteria, such as time of delivery or service capability need to be evaluated);
(iii) When emergency procurement is justified by a demonstration that the time required for formal competitive bid procedures would result in an unacceptable delay in delivering the commodities;
(iv) When proprietary procurement is justified; or
(v) When adherence to formal competitive procedures would impair program objectives.
(2) When formal competitive bidding procedures have failed, all bids have been rejected, and further use of such procedures would clearly not be productive, the Mission Director may authorize the use of competitive negotiation procedures. Further advertising is not required. The request for quotations may be prepared as a new document or may incorporate appropriate provisions of the invitation for bids. It shall be submitted to those potential suppliers who originally submitted bids in response to the invitation for bids.
(e) Small value procurement. When the estimated value of the contract does not exceed $100,000 or equivalent (exclusive of ocean and air transportation costs), the purchaser may award a contract by advertising the procurement in accordance with paragraph (h) of this section and soliciting quotations from a reasonable number of sources, including, where feasible, producers of the commodity, taking into consideration:
(1) The nature of the commodities to be purchased;
(2) The number of sources which can supply the commodities;
(3) The value of the procurement; and
(4) The administrative cost of procuring the commodities.
(f) Proprietary procurement. Purchasing by brand or trade name or by a restrictive specification (proprietary procurement) may be justified for reasons such as:
(1) Substantial benefits, such as economies in maintenance of spare parts inventories, stronger local dealer organization, better repair facilities, or greater familiarity by operating personnel, can be achieved through standardizing on a particular brand;
(2) Compatibility with equipment on hand is required; or
(3) Special design or operational characteristics are required.
(g) Negotiation with a single source – (1) Circumstances. Competition may be waived and negotiation with a single source authorized by USAID under one of the following circumstances:
(i) the purchaser can demonstrate the existence of an emergency situation in which the requirement for competition would result in an unacceptable delay in the procurement of the commodities;
(ii) proprietary procurement is justified and the necessary commodities or spare parts are available from only one source, taking into account any special requirements such as the need for in-country service capability; or
(iii) adherence to competitive procedures would result in the impairment of the objectives of the United States foreign assistance program or would not be in the best interest of the United States.
(2) Amendments. Negotiation with a single source to amend an existing contract outside the scope of the contract must be justified under one or more of the criteria in paragraph (g)(1) of this section and formally approved by USAID.
(h) Advertising – (1) Requirements. (i) For each procurement estimated to exceed $25,000, or equivalent (exclusive of ocean and air transportation costs), notice of the availability of the invitation for bids, request for quotations or specific information about procurements under $100,000 shall be published by the USAID Office of Small and Disadvantaged Business Utilization/Minority Resource Center in the appropriate USAID Bulletin. The purchaser shall submit three copies of each invitation for bids or request for quotations (if any) to the USAID Mission with its request for advertising. The Mission will forward the request for advertising and the procurement documents to USAID/W. The request for advertising should arrive in the Office of Small and Disadvantaged Business Utilization/Minority Resource Center at least 45 days prior to the final date for receiving bids or quotations. The purchaser may, in addition, advertise in appropriate local, regional, and international journals, newspapers, etc., and otherwise, in accordance with local practice.
(ii) Additionally, if the estimated value of the contract is more than $100,000, or equivalent (exclusive of ocean and air transportation costs), the notice of availability of the invitation for bids or request for quotations shall be published in the “Commerce Business Daily” of the U.S. Department of Commerce.
(2) Exceptions. (i) When negotiation with a single source has been authorized, advertising is not required.
(ii) When formal competitive bid procedures have failed to result in an award pursuant to paragraph (d)(2) of this section and a determination is made to follow competitive negotiation procedures, no further advertising is required.
(iii) The requirements for advertising as set forth above may be waived by USAID to avoid serious procurement delays in certain circumstances, provided, however, that efforts shall be made to secure bids or offers from a reasonable number of potential suppliers.
(i) USAID approvals. (1) Each invitation for bids or request for quotations for an USAID-financed procurement which is estimated to exceed $100,000, or equivalent (exclusive of ocean and air transportation costs), must be approved by USAID prior to issuance.
(2) Each contract in excess of $100,000, or equivalent (exclusive of ocean and air transportation costs), must be formally approved by USAID prior to finalization with the supplier.
(3) USAID may require that contracts under $100,000 be formally approved prior to finalization with the supplier.
§ 201.23 Procurement under private sector procedures.
(a) General requirements. Procurements under private sector procedures will normally be carried out by importers using negotiated procurement procedures, unless the importer chooses to follow the procedures in § 201.22. Procurement on a negotiated basis shall be in accordance with good commercial practice. Solicitations by the importer for quotations or offers shall be made uniformly to a reasonable number of prospective suppliers, including, where feasible, producers of a commodity, and all quotations or offers received, whether or not specifically solicited, shall be given consideration before making an award.
(b) Publicizing. To provide suppliers in the United States with an opportunity to participate in furnishing commodities which may be purchased on a negotiated basis under USAID financing, USAID will periodically publish for each cooperating country a list of commodities which may be expected to be imported and the names and contact information for the importers which have traditionally purchased those commodities. Interested suppliers may then make offers or furnish quotations on the products they desire to sell directly to the importers of those products. USAID will not publicize specific proposed purchases which are to be undertaken by private sector importers on a negotiated basis unless specifically requested to do so by the importer in accordance with the provisions of paragraph (c) of this section.
(c) Notification. If the importer elects to solicit quotations and offers for specific proposed purchases through publication by USAID, USAID will notify prospective suppliers of the export opportunity through the appropriate USAID bulletin. Requests for such notification shall be submitted to the Office of Small and Disadvantaged Business Utilization/Minority Resource Center, USAID, Washington, DC 20523-7700, and shall contain the name and contact information for the importer, a full description of the commodities and any commodity related services required, applicable price and delivery terms and other relevant procurement data, in the English language. The metric system of measurements shall be used for specifications unless USAID determines in writing that such use is impractical or is likely to cause significant inefficiencies or the loss of markets to U.S. firms.
(d) Notice of quotations and offers received. USAID may require that the importer furnish an abstract in the English language and identify thereon all offers or quotations received, the offer accepted or order placed, the price, the quantity, the name and address of all persons submitting offers or quotations and of their principals, if any (including manufacturers or processors of the commodity).
(e) Procurement under special supplier-importer relationships – (1) Solicitation of offers from more than one supplier is not required if:
(i) The importer is purchasing for resale or processing, as the supplier’s regularly authorized distributor or dealer, a commodity which, under the terms of the distributorship or dealer agreement, the importer is precluded from buying from another supplier; or
(ii) The importer is purchasing for resale a registered brand-name commodity from a supplier who is the exclusive distributor of that commodity to the area of the importer.
(2) USAID may require the importer to furnish, or cause to be furnished, to USAID documentary evidence of the existence of the relationships described in paragraph (e)(1) of this section.
§ 201.24 Progress and advance payments.
(a) Definitions – (1) Progress payments. Progress payments are payments made prior to shipment under a fixed price procurement contract, which are based on actual costs incurred or on an actual stage or percentage of completion accomplished.
(2) Advance payments. Advance payments are payments to a supplier prior to, and in anticipation of, performance under a procurement contract. They are not based on actual performance or actual costs incurred.
(b) Progress payments – (1) Conditions for eligibility. USAID will approve progress payments only if:
(i) The period between the commencement of work and the first required delivery will exceed four months;
(ii) There will be substantial predelivery costs that may have a material impact on a suppliers’s working capital;
(iii) The total FAS purchase price will exceed $200,000;
(iv) The supplier must establish a performance bond or guaranty in favor of the borrower/grantee providing adequate security for the amount of the progress payments; and
(v) The amount of the progress payments does not exceed 95 percent of the total FAS purchase price.
(2) Notice. In order for progress payments to be eligible under a competitive procurement, the solicitation document must state that such payments will be allowed and that a request for progress payments will not be considered an adverse factor in the award of the contract.
(3) Approval. All progress payments must be approved in writing by USAID.
(c) Advance payments – (1) Conditions for eligibility. Advance payments may be authorized only if USAID has made a positive determination in writing that:
(i) USAID will benefit therefrom, in terms of increased competition and/or lower prices, prior to the issuance of the solicitation or prior to award of a noncompetitive contract; and
(ii) The supplier has a financial management system which is adequate for controlling and accounting for U.S. government funds.
(2) Amount. The amount of the advance is based on an analysis of the working capital required under the procurement contract, taking into consideration the availability of the supplier’s own working capital and shall be limited to the minimum amount needed for immediate disbursing needs.
(3) Security. The supplier must establish an advance payment bond or guaranty in favor of the borrower/grantee providing adequate security for the amount of the advance payment.
(4) Notice. In order for advance payments to be eligible under a competitive procurement, the solicitation document must state that such payments will be allowed and that a request for advance payments will not be considered an adverse factor in the award of the contract.
(5) Approvals. All advance payments must be approved by USAID in writing.
§ 201.25 Bid and performance bonds and guaranties.
Whenever the importer requires the posting of a bid bond or guaranty or performance bond or guaranty, the type of bond or guaranty (certified check, irrevocable letter of credit, bank bond, bank guaranty, or surety bond) shall be at the option of the bidder or supplier. Posted bid bonds or guaranties shall be returned to unsuccessful bidders promptly after an award is made. Unless converted to a required performance bond or guaranty, any bid bond or guaranty posted by the successful bidder shall also be returned promptly. Performance bonds or guaranties (as distinguished from commodity warranties of quality or performance) shall be canceled no later than 30 days after completion of the contract performance guarantied.
§ 201.26 Expenditure of marine insurance loss payments.
Unless otherwise authorized by USAID, any marine insurance loss payment under a marine insurance policy financed pursuant to this part 201 received by the importer, either directly or indirectly, shall be used by the importer as follows:
(a) To procure from a source specified in the implementing document which originally provided the USAID funds, commodities which have been designated by USAID to the borrower/grantee as eligible for USAID financing; or
(b) To cover the cost of repairs to commodities damaged during shipment.
Subpart D – Responsibilities of Suppliers
§ 201.30 Purpose.
This subpart establishes the responsibilities of suppliers who furnish commodities and/or commodity-related services.
§ 201.31 Suppliers of commodities.
(a) Performance of the sales contract. The supplier of commodities shall comply with the terms and conditions of its contract with the importer and any letter of credit or direct letter of commitment under which it secures payment.
(b) Responsibilities relating to eligibility of commodities. The supplier shall fulfill its responsibilities under § 201.11 by assuring that:
(1) The commodity conforms to the description contained in its contract and letter of credit or direct letter of commitment and, unless otherwise authorized by USAID in writing, the commodity is unused and has not been disposed of as surplus by any governmental agency;
(2) The source of the commodity complies with the provisions of § 201.11(b) relating to source as required by its contract, letter of credit or direct letter of commitment;
(3) The provisions of § 201.11(d) relating to the medium of transportation are complied with to the extent that the supplier arranges such transportation;
(4) All documents required by § 201.52 to be submitted by the supplier to receive payment are submitted by it on or before the terminal date specified in the letter of credit, direct letter of commitment, or, if payment is to be made at sight, the purchase contract;
(5) The provisions of the U.S. Treasury Department Foreign Assets, Sanctions, Transactions and Funds Control Regulations published in 31 CFR parts 500 through 599, as from time to time amended, are complied with; and
(6) The purchase price of the commodity meets the requirements of subpart G of this part applicable to the supplier.
(c) Responsibilities relating to eligibility of delivery services. The supplier of commodities shall be responsible for assuring that any delivery services obtained by it for its own or for the importer’s account comply with the requirements of § 201.13 and, if required by USAID, for assuring that any shipping documents obtained by it contain an appropriate diversion clause pursuant to § 201.43. The supplier shall deliver to USAID any shipping documents available to it whenever such delivery is requested by USAID.
(d) Marking of shipping containers and commodities – (1) Affixing emblems and identification numbers. The supplier of commodities shall be responsible for assuring that all export packaging, whether shipped from the United States or from any other source country, carries the official USAID (clasped hands) emblem. Additionally, except as USAID may otherwise prescribe, when the supplier is given notice by the importer that the importer is the government of the cooperating country or any of its subdivisions or instrumentalities, the supplier shall also be responsible for assuring that, in addition to the shipping cartons or other export packaging, all commodities carry the USAID emblem. The USAID financing document number shall be marked on each export shipping carton and box in characters at least equal in height to the shipper’s marks. When commodities are shipped as containerized freight in a reusable shipping container, the container is not considered export packaging within the meaning of this paragraph and the outside of the container need not be marked; however, the cartons, boxes, etc., inside the container must be marked.
(i) Durability of emblems. Emblems shall be affixed by metal plate, decalcomania, stencil, label, tag or other means, depending upon the type of commodity or export packaging and the nature of the surface to be marked. The emblem placed on commodities shall be as durable as the trademark, commodity or brand name affixed by the producer; the emblem on each export packaging unit shall be affixed in a manner which assures that the emblem will remain legible until the unit reach the consignee.
(ii) Size of emblems. The size of an emblem may vary depending upon the size of the commodity and the size of the export packaging. The emblem shall in every case be large enough to be clearly visible at a reasonable distance.
(iii) Design and color of emblems. Emblems shall conform in design and color to samples available from the Office of Procurement, Commodity Support Division, USAID, Washington, DC 20523-1415, and from the Mission.
(2) Exception to requirement for affixing emblems. To the extent compliance is impracticable, emblems shall not be required for:
(i) Raw materials shipped in bulk (including grain, coal, petroleum, oil, and lubricants);
(ii) Vegetable fibers packaged in bales; and
(iii) Semifinished products which are not packaged in any way.
(3) Waiver. If compliance with the marking requirement is found to be impracticable with respect to other commodities not excepted by paragraph (d)(2) of this section, the supplier (or, when appropriate, the borrower/grantee) may request a waiver from USAID (Regional Assistant Administrator or his/her designee).
(e) Export licenses and approvals. The supplier shall be solely responsible for assuring that all necessary export licenses and approvals are obtained.
(f) Distribution of shipping documents. The supplier shall make the customary commercial document distribution, as well as any special distribution (e.g., to the USAID Mission in the importing country) which may be specified in the letter of credit, direct letter of commitment or other payment instruction covering the transaction. Prior to presenting the documents specified in § 201.52 for payment, the supplier shall mail not later than 30 days from the date of shipment a legible copy of all rated ocean bill(s) of lading described in § 201.52(a)(4)(i) to: Maritime Administration, Division of National Cargo, 400 Seventh Street SW., Washington, DC 20590-0001; and Transportation Division, Office of Procurement, USAID, Washington, DC 20523-7900.
(g) Adjustment refunds, credits, and allowances. All adjustments in the purchase price in an USAID-financed transaction in favor of the importer arising out of the terms of the contract or the customs of the trade shall be made by the supplier in the form of a dollar payment to USAID. Any such payment shall be transmitted to the Office of Financial Management, USAID, Washington, DC 20523-7702, and shall be accompanied by a statement explaining the adjustment and shall specify the name and address of the importer, the date and amount of the original invoice, and the identification number of the implementing document, if known, under which the original transaction was financed. USAID will advise the borrower/grantee of such adjustment refunds received. Despatch earned by the supplier, other than despatch earned at the port of loading on c.i.f. and c. & f. shipments, shall be refunded to USAID in accordance with § 201.67(a)(5).
(h) Vesting in USAID of title to commodities. The supplier shall be responsible for compliance with the provisions of § 201.44 applicable to it.
(i) Termination or modification of USAID-financing. The supplier shall be responsible for compliance with the provisions of § 201.45 applicable to it.
§ 201.32 Suppliers of delivery services.
(a) Performance of the service contract. The supplier of delivery services financed by USAID shall comply with the terms and conditions of its contract to supply delivery services.
(b) Adjustment in the price of delivery services. The supplier of delivery services shall pay to the Office of Financial Management, USAID, Washington, DC 20523-7792, all adjustments in the purchase price in favor of the importer (or person purchasing the ocean transportation services) arising out of the terms of the contract or the customs of the trade. Any such payment shall be accompanied by a statement explaining the adjustment and shall specify the name and address of the importer or other person for whom the adjustment is made, the date and amount of the original invoice, and the identification number of the implementing document, if known, under which the original transaction was financed.
(c) Marine insurance reporting requirement. With respect to any loss payment exceeding $10,000 in value which a supplier of marine insurance makes under a marine insurance policy financed pursuant to this part, the supplier of marine insurance shall, within 15 days of making such payment, report to the Commodity Support Division, Office of Procurement, USAID, Washington, DC 20523-7900, the amount and date of the payment, a description of the commodity, the USAID identification number, name of the carrier, vessel, and voyage number (alternatively, flight or inland carrier run number), date of the bill(s) of lading, the identity and address of the assured, and the identity and address of the assignee of the assured to whom payment has actually been made.
Subpart E – General Provisions Relating to USAID Financing of Commodities and Commodity-Related Services
§ 201.40 Purpose.
This subpart sets forth certain provisions of general application to transactions subject to this part.
§ 201.41 Audit and inspection.
The borrower/grantee shall maintain records adequate to document the arrival and disposition in the cooperating country of all commodities financed by USAID, and to identify the importer (or the first purchaser or transferee if the commodity is imported by the borrower/grantee) for a period of 3 years following the date of payment or reimbursement by USAID or for such other period as USAID and the borrower/grantee agree. In addition, the borrower/grantee or the importer shall, to the extent either exercises control or custody over the commodities, permit USAID or any of its authorized representatives at all reasonable times during the 3-year or other agreed period to inspect the commodities at any point, including the point of use, and to inspect all records and documents pertaining to such commodities.
§ 201.42 Reexport of USAID-financed commodities.
Unless specifically authorized by USAID, commodities imported into a cooperating country under USAID-financing may not be exported in the same or substantially in the same form from the cooperating country. In the event of any unauthorized reexport, the borrower/grantee shall pay promptly to USAID, upon demand, the entire amount reimbursed or such lesser or greater amount as USAID may deem appropriate under the circumstances of the particular transaction. Such an amount shall in no event, however, exceed the greater of either the amount reimbursed or the amount realized from the reexport.
§ 201.43 Diversion clause.
USAID may require that charter parties, bills of lading, or other ocean shipping documents covering USAID-financed commodities contain a clause substantially as follows:
USAID may at any time prior to unloading prescribe a different port of discharge from among the ports covered by the applicable tariff. Diversion charges shall apply in accordance with the tariff or contract of affreightment. Deviation insurance and extra handling costs actually incurred shall be reimbursed.
§ 201.44 Vesting in USAID of title to commodities.
(a) Vesting upon order of USAID USAID may direct that title to USAID-financed commodities in transit to a cooperating country shall be vested in USAID if, in the opinion of USAID, such action is necessary to assure compliance with the provisions or purposes of any act of Congress.
(1) Rights of USAID upon vesting of title. In accordance with instructions by USAID, the borrower/grantee, supplier, and bank shall transfer such negotiable bills of lading, suppliers’ invoices, packing lists, inspection certificates or other designated documents relating to the commodities as are in, or may come into, their possession.
(2) Diversion of commodities. USAID may direct the master or operator of a vessel or an inland carrier carrying the commodities to divert them away from the port or other destination specified in the shipping documents and to deliver them at such other destination as USAID may designate.
(b) Financial responsibility of USAID under vesting order. (1) USAID will reimburse a supplier who has not already received payment under the purchase contract for all commodities with respect to which USAID has taken title under a vesting order.
(2) USAID will assume the responsibility for any extra costs (including the costs of marine insurance and handling) which are incurred as a result of a diversion. Such costs shall not exceed diversion charges as per tariff (liner shipments) or contract of affreightment (charters), and shall include only those deviation insurance and extra handling costs which are actually incurred.
(3) USAID shall incur no liability to the borrower/grantee, the importer, or to the approved applicant by reason of any order which vests in USAID title to commodities, or by reason of any request for the diversion of commodities.
§ 201.45 Termination or modification of a loan, grant or implementing document.
(a) Effect of termination or modification. (1) Except as provided in paragraph (a)(2) of this section, the availability of USAID funds to finance the procurement of commodities and commodity-related services shall terminate or shall be modified, whenever and to the same extent that the implementing document which relates to such delivery is terminated or modified by operation of provisions contained in the document, or by the exercise of rights otherwise reserved to USAID.
(2) Unless the supplier and USAID agree otherwise, to the extent that the supplier has received an irrevocable letter of credit from a bank under an USAID letter of commitment, the purchase contract shall be affected only to the extent necessary to comply with any vesting order issued by USAID in accordance with § 201.44.
(b) Responsibilities of parties after termination or modification of USAID-financing. Upon termination or modification of USAID-financing of commodities or commodity-related services, the supplier, importer and approved applicant shall make such arrangements as are necessary to obtain the cancellation or modification of any letter of credit in favor of the supplier.
§ 201.46 Compensation to supplier if shipment is prohibited.
(a) Payment to supplier. USAID shall make appropriate payment to a supplier for the value of USAID-financed commodities available for immediate shipment from the United States if all the following conditions are satisfied:
(1) Shipment is prohibited by order of the U.S. Government and such order has general application to all shipments to the cooperating country.
(2) Payment may not be made by the bank under the terms of the letter of credit or payment instructions.
(3) The supplier is unable to dispose of the commodities without loss.
(4) The supplier tenders to USAID a negotiable warehouse receipt covering the commodities in question and presents to USAID such other documentation required by § 201.52 as may be appropriate under the circumstances.
(b) Other settlement. In lieu of accepting title to the commodities, USAID may negotiate with the supplier such other settlement as may be fair and equitable under the circumstances.
§ 201.47 Use of marine insurance loss proceeds.
The borrower/grantee shall pay promptly to USAID a sum equal to the proceeds received by an importer or its assignee in settlement of a marine insurance claim under a marine insurance policy financed pursuant to this part 201, if such proceeds are not expended in the manner provided by § 201.26 within a reasonable period after receipt by the importer.
Subpart F – Payment and Reimbursement
§ 201.50 Purpose.
This subpart describes:
(a) The methods by which USAID will make payment or reimbursement for commodities and commodity related services which have been furnished;
(b) The documentation required to be submitted to USAID for the purpose of obtaining such payment or reimbursement; and
(c) The terminal date for presentation of documents which USAID requires as a condition for payment or reimbursement.
§ 201.51 Methods of financing.
Under procurements subject to this part 201, the following methods of financing may be employed by USAID In each case, the method of financing shall be consistent with provisions in the pertinent implementing documents.
(a) Direct reimbursement. Upon presentation to USAID of the documents specified in § 201.52, a borrower/grantee will be reimbursed for the cost of commodities and commodity-related services procured by the borrower/grantee directly or procured by other importers with the authorization of the borrower/grantee, if such commodities or services are eligible under the implementing document and under this part 201 for USAID-financing.
(b) Letter of commitment to a bank. At the request of the borrower/grantee, USAID will issue a letter of commitment to a bank for a specified amount in dollars. Reimbursement to a bank will be in accordance with the terms of such letter of commitment for sight payments made for the account of an approved applicant. Any such payment by a bank made in anticipation of a letter of commitment and falling within the scope of payments authorized by such letter of commitment when issued, will be deemed to be a payment to be reimbursed by USAID thereunder.
(1) Requests for bank letters of commitment. All requests for bank letters of commitment shall be in the English language and shall be submitted to USAID by the borrower/grantee in duplicate. They shall contain the following:
(i) Identification of the loan or grant agreement;
(ii) The dollar amount of the letter of commitment;
(iii) The name and address of the bank to which the letter of commitment is to be issued;
(iv) The name and address of the approved applicant;
(v) The expiration date to be stated in the letter of commitment, which shall be not later than the final date specified in the implementing document for submission of documentation to the bank as a basis for disbursement against the letter of commitment, except that, if a terminal shipping date is provided in the implementing document, the expiration date shall be the last day of the month following the month in which the terminal shipping date occurs.
(vi) Identification of the items to be financed under the letter of commitment (including the Schedule B identification).
(2) Approved applicant’s request to bank – (i) Form and effect of request. An approved applicant may apply to the bank holding a letter of commitment for the issuance, confirmation, or advice of a commercial letter of credit for the benefit of a supplier, or may instruct the bank to make payments at sight to such supplier, or may instruct the bank to make payments at sight to or for the account of the borrower/grantee.
(ii) Borrower/grantee assignment under a letter of commitment. The borrower/grantee’s request to USAID for a letter of commitment shall be deemed notification to USAID of assignment of any rights to receive reimbursement for the specified funds under the related implementing document. USAID, by issuance of the letter of commitment, shall be deemed to have consented to such assignment. Any such assignment or consent shall inure to the benefit of the bank’s legal successors and assignees.
(iii) Requirements imposed by bank. The borrower/grantee and the approved applicant shall be deemed to have consented to imposition by the bank upon the beneficiary of any letter of credit or payment instruction of such requirements as the bank deems necessary in order to comply with its applicable obligations to USAID. Such consent shall be deemed an express condition incorporated in any request of the approved applicant under paragraph (b)(2)(i) of this section.
(3) Reimbursement of bank. Upon presentation to USAID of the documents described in § 201.52, USAID will reimburse the bank for any amounts paid by it in dollars to or on behalf of the approved applicant pursuant to a letter of commitment, subject, however, to compliance by the bank with the requirements of subpart H. Such documents in the normal course should be presented to USAID promptly. Bank charges will be eligible for reimbursement if authorized in the letter of commitment. Reimbursement normally will be made within 7 days by an electronic funds transfer.
(c) Bank charges under letters of commitment. (1) To claim reimbursement for commissions, transfers or other charges, not including interest on advances, the bank shall submit the Voucher SF 1034 and shall attach thereto a copy of the payment advice which identifies the costs being billed.
(2) To claim reimbursement for interest on advances, the bank shall claim reimbursement on the Voucher SF 1034, attaching thereto:
(i) The monthly statement of advance account established under the letter of commitment, in duplicate, showing:
(A) The opening balance;
(B) The date and amount of each type of charge attributable to the letter of commitment, indicating the number of the letter of commitment, subsidiary letter of credit, or payment instruction or request under which the charge was made;
(C) The date and amount of each USAID reimbursement to the bank, indicating either the USAID bureau voucher number or the number of the letter of commitment, subsidiary letter of credit, or payment instruction or request under which the payment was made; and
(D) The closing balance;
(ii) The bank’s monthly advice of charge, in duplicate, showing:
(A) The outstanding balance in the advance account on each day of the period covered; and
(B) The amount of interest charged during the period.
(3) Certification. Each claim for reimbursement shall have endorsed thereon or attached thereto a certification by an authorized representative of the bank that the charges for which payment is being claimed are in accordance with the schedule of charges agreed on between the bank and the approved applicant or beneficiary.
(4) Report. The bank shall submit a report showing the financial status of each letter of commitment issued to it by USAID. The content, format and frequency of the report shall be prescribed in the letter of commitment. The report shall be prepared in an original and two copies, and distributed as follows: USAID/W (original), approved applicant (copy) and cognizant Mission (copy). The report to USAID/W should be sent to the Office of Financial Management, Cash Management and Payment Division (M/FM/CMP), USAID, Washington, DC 20523-7702. The report shall be certified by an authorized signatory of the bank.
(d) Direct letter of commitment to a supplier. (1) At the request of a borrower/grantee, USAID may issue a direct letter of commitment to a supplier assuring payment by USAID of specified amounts to cover the cost of commodities and commodity-related services. The letter of commitment to a supplier will identify the purchase contract to which it relates and the implementing document under which it is issued.
(2) Assignment may be permitted as provided for in the direct letter of commitment.
§ 201.52 Required documents.
(a) Commodities and commodity-related services. Claims for reimbursement or payment with respect to commodities and commodity-related services shall be supported by the documents listed in paragraphs (a)(1) through (8) of this section or by such other documents as may be required in the letter of commitment or other applicable implementing document. Each document shall indicate the identification number of the letter of commitment or other applicable implementing document.
(1) Voucher. Voucher SF 1034 with three copies, to be prepared by the borrower/grantee, by the approved applicant, by the bank as assignee or agent for the approved applicant, or, in the case of a direct letter of commitment, by the supplier.
(2) Supplier’s invoice. (i) One copy of the supplier’s detailed invoice showing the following:
(A) The name and address of the importer;
(B) The quantity and the description of each item shipped, in sufficient detail, including the U.S. Department of Commerce Schedule B number, for ready identification;
(C) The total gross sales price;
(D) The total net sales price (determined by deducting from the total gross sales price the amounts required to be deducted under § 201.65(d));
(E) The sales price for each item net of all trade discounts under § 201.65(d);
(F) The delivery terms (e.g., f.o.b., f.a.s., c.i.f. or c. & f.);
(G) The type and dollar amount of each incidental service which is not included in the price of the commodity and for which reimbursement is claimed;
(H) The type and dollar amount of each delivery service obtained by the supplier of the commodity for the importer’s account which is not included in the price of the commodity and for which reimbursement is claimed;
(I) To the extent that the commodity price includes commodity-related services, a list of each such service and the dollar amounts attributable to each such service; and
(J) Unless a Supplier’s certificate covering marine insurance is submitted, the name and address of the supplier of such insurance and the dollar cost thereof.
(ii) Each invoice submitted under a bank letter of commitment shall be marked PAID by the supplier, or alternatively, the bank may certify by an endorsement on or attachment to the invoice that payment has been made in the amount shown on the invoice.
(iii) Each invoice must contain certifications from the supplier to the effect that:
(A) The USAID marking requirements set forth in § 201.31(d) have been met;
(B) Unless otherwise specified by USAID, the supplier has airmailed to the USAID Mission in the capital city of the cooperating country one copy each of the invoice, packing list and bill(s) of lading;
(C) If shipment is effected by ocean vessel, one copy of all bill(s) of lading described in § 201.52(a)(4) has been maiIed to: Maritime Administration, Division of National Cargo, 400 Seventh Street SW., Washington, DC 20590-0001; and Transportation Division, Office of Procurement, USAID, Washington, DC 20523-7900.
(3) Charter party. A copy (or photostat) of any approved charter party under which shipment is made, submitted:
(i) By the commodity supplier whenever USAID-finances any portion of the dollar price of a commodity sale under c.&f. or c.i.f. delivery terms, or
(ii) By the supplier of ocean transportation whenever USAID-finances the freight under any freight reimbursement arrangement.
(4) Evidence of shipment. (i) A copy (or photostat) of the bill(s) of lading (ocean, charter party, air, rail, barge, or truck) or parcel post receipt evidencing shipment from the point of export in the source country or free port or bonded warehouse. The bill(s) of lading shall indicate the carrier’s complete statement of charges, including all relevant weights, cubic measurements, rates and additional charges, whether or not freight is financed by USAID If an NVOCC is used, rated copies of both the NVOCC’s through bill of lading and the bill(s) of lading of all VOCCs must be included.
(ii) When the commodity is transported to the cooperating country under its own power (e.g., a fishing vessel), USAID will require a certificate signed by the importer or its authorized agent, certifying that the commodity has been received by the importer, to be submitted instead of a bill of lading.
(iii) When the supplier is not responsible under the terms of its agreement with the importer for assuring that the commodities are loaded on board the vessel, such as when delivery terms are f.a.s. port of shipment, the importer may request and the Commodity Support Division, Office of Procurement, USAID, Washington, DC 20523-7900 may authorize the following documents, instead of a bill of lading, to be submitted with a claim for reimbursement or payment for the commodities:
(A) A dock or warehouse receipt containing the commodity description, weight and cubic measurement, port of loading, and, if available, name and flag of vessel; the receipt must show consignment of the commodities to a person or organization designated by the importer; and
(B) A letter from the consignee addressed to USAID undertaking to arrange for shipment of the goods to the cooperating country and to deliver to: FM/CMPD, Office of Financial Management, USAID, Washington, DC 20523-7702, within 15 days from the date of shipment, a copy of the bill of lading evidencing shipment to the cooperating country. The bill of lading shall indicate the carrier’s complete statement of charges, as in paragraph (a)(4)(i) of this section.
(5) Documentation on shipments to a free port or bonded warehouse. When a commodity is shipped out of a free port or bonded warehouse, the supplier shall:
(i) Provide as an attachment to a copy of the invoice, a copy of the bill of lading (bearing a notation of the freight cost) covering the shipment of the commodity into the free port or bonded warehouse, or
(ii) If such a bill of lading is not available to the supplier, provide the following information and certify to the accuracy of the information: the country or area from which the commodities were shipped to such free port or bonded warehouse; the name and flag of the vessel which transported the commodities from the source country to the free port or bonded warehouse; the cost of the freight for such shipment; and the free port or bonded warehouse to which shipment was made from the source country, or
(iii) If commodities have been commingled in the warehouse in such a way that shipments out of the warehouse cannot be related to particular shipments into the warehouse, the supplier shall certify to the best of its knowledge and belief that a portion of the commodities was transported to the free port or bonded warehouse as required by § 201.13(b)(1)(i)(D), and the quantity for which USAID-financing is sought does not exceed that amount.
(6) Supplier’s Certificate (form AID 282). An original and one copy of the Supplier’s Certificate executed, without modification, by:
(i) The supplier of the commodity for the cost of the commodity and any commodity-related services furnished by the commodity supplier;
(ii) The carrier for the cost of ocean or air transportation financed by USAID;
(iii) The insurer for the cost of marine insurance financed by USAID if such cost exceeds $50.
(7) Freight forwarder’s invoice. One copy of the freight forwarder’s invoice, if any, marked PAID and containing a complete, individually priced itemization of all charges and fees billed by or through the forwarder.
(8) Commodity approval application (form AID 11). One signed original of the Commodity Approval Application executed by the commodity supplier and countersigned by USAID. In the case of a claim for reimbursement or payment for partial shipment presented subsequent to submission of the original Commodity Approval Application, one reproduced copy of the original countersigned Commodity Approval Application, appropriately certified as such by the supplier.
(b) Execution of Certificates. (1) The original of each Supplier’s Certificate and Commodity Approval Application shall be signed by hand and shall bind the person or organization in whose behalf the execution is made.
(2) The Supplier’s Certificate covering the cost of marine insurance may be executed on behalf of the marine insurer by an insurance broker or by a commodity supplier if the commodity supplier is the assured under an open cargo insurance policy issued by the marine insurer and is authorized under such policy to bind the marine insurer by issuing insurance certificates or policies in favor of importers. In each such case, the insurance broker or commodity supplier shall indicate on the Supplier’s Certificate the name and address of the insurance company which is acting as the supplier of marine insurance and shall describe itself below its signature as a commodity supplier issuing a certificate under an open cargo insurance policy or as an insurance broker.
§ 201.53 Final date for presentation of documents.
(a) Direct reimbursement. Prescribed documents shall be presented to USAID by the borrower/grantee no later than the terminal date specified in the implementing document.
(b) Letter of commitment to a bank. Prescribed documents shall be presented by the bank to USAID and shall cover:
(1) Payments or negotiations made under letters of credit expiring no later than the expiration date stated in the letter of commitment, or
(2) Payments to a supplier, the approved applicant, or, at the request of an approved applicant, to a person other than the supplier, made no later than such expiration date.
(c) Direct letter of commitment to supplier. Documents prescribed for payment under a direct letter of commitment to a supplier shall be presented by the supplier to USAID no later than the expiration date stated therein. Such documents must evidence shipment no later than the terminal shipment date provided in the direct letter of commitment.
Subpart G – Price Provisions
§ 201.60 Purpose and applicability of this subpart.
This subpart prescribes rules relating to prices, discounts, commissions, credits, allowances, and other payments. These rules shall be observed in the procurement of commodities and commodity-related services financed under this part. The rules implement and supplement the requirements of the Act relating to prices in such procurement. The general purpose of these rules is to assure the prudent use of USAID funds.
(a) Statutory price limitations. (1) Section 604(a) of the Act provides inter alia that funds made available under this Act may be used for procurement outside the United States only if the price of any commodity procured in bulk is lower than the market price prevailing in the United States at the time of procurement adjusted for differences in the cost of transportation to destination, quality, and terms of payment.
(2) Section 604(b) of the Act provides that no funds made available under this Act shall be used for the purchase in bulk of any commodities at prices higher than the market price prevailing in the United States at the time of purchase, adjusted for differences in the cost of transportation to destination, quality, and terms of payment.
(b) Transactions covered. The rules and conditions prescribed by this subpart apply to all USAID-financed transactions subject to this regulation, whether or not the commodities are purchased in bulk.
(c) Compliance. Compliance with this subpart G and with any additional price requirement contained in the implementing document shall be a condition to the financing by USAID of procurement transactions under this part. Post-audit of transactions will be made by USAID to determine whether there has been such compliance.
§ 201.61 Meaning of terms in this subpart.
(a) Class of purchaser means any group of purchasers which is separately identifiable and which is distinguishable from other purchasers on the basis of quantity purchased, distribution function or established trade practice.
(b) Commission. See § 201.01(h).
(c) Comparable domestic sale means any comparable sale not in export transactions.
(d) Comparable export sale means any comparable sale in export transactions.
(e) Comparable sale means any sale of or bona fide offer to sell the same commodity, or (in the absence of such a sale or offer to sell) any sale of or offer to sell a similar commodity which, with respect to the quantity, quality, grade, period of delivery, supply area, terms of sale, or class of purchaser, either:
(1) Is not sufficiently different from the sale being tested to result customarily in a price different from the price in the sale being tested; or
(2) Can be related to the sale being tested through application of a customary price differential. A sale which is otherwise comparable to another sale is not rendered noncomparable by virtue of its being made out of a free port or bonded warehouse. The fact that a sale is made out of a free port or bonded warehouse shall not cause that sale to differ from otherwise comparable sales with respect to terms of sale, supply area, or period of delivery.
(f) The date the purchase price is fixed means the date on which the parties agree on the price. If, however, the parties establish the price as of any other date which is subsequent to the date of such agreement and not later than the date of delivery, the term means such other date regardless of whether it precedes, coincides with or follows the legally effective date of the purchase contract.
(g) Export differential means the customary difference in price, if any, between domestic sales and otherwise comparable export sales.
(h) Period of delivery means the length of time between the date the purchase price is fixed or the date of the purchase contract, whichever is later, and the date by which delivery is to be completed.
(i) Producer means any person who grows, mines, manufactures, processes, or assembles a commodity in the form in which it is exported.
(j) Purchase price means the total amount which the purchaser agrees to pay or make available to or for the benefit of the supplier (including any person or organization designated by the supplier to receive such payment) for any commodity or commodity-related service which is wholly or partly financed by USAID.
(k) Representative of the importer means any entity affiliated with the importer by ownership or management ties, and any office or employee of such entity.
(l) Similar commodity means a commodity which is functionally interchangeable with the commodity in the sale being tested, and affords the purchaser substantially equivalent serviceability.
(m) Supply area means the source country, or if the commodity is customarily sold at different prices (exclusive of transportation costs) from different geographic areas within a source country, the specific geographic area within the source country from which the commodity is shipped to the cooperating country.
(n) Time of purchase means that period encompassing the date the purchase price is fixed during which prices in comparable sales remain substantially constant.
(o) Transportation cost means the cost of all transportation by land, sea, or air from the port of export to the destination in the cooperating country, plus the cost of marine insurance, if any, covering such transaction. Such costs are financed by USAID only to the extent provided in § 201.13.
§ 201.62 Responsibilities of borrower/grantee and of supplier.
(a) Responsibilities of borrower/grantee. The borrower/grantee shall:
(1) When required by USAID, develop and periodically update, or cooperate with USAID in the development and updating of, lists of importers who have traditionally imported the commodities which may be purchased under the loan or grant. Such listings shall be by commodity groupings selected by USAID, cover all commodities eligible for financing, and, to the extent such information is available, show the names and addresses of all importers, regardless of the source from which their imports originated.
(2) Insure that the importer
(i) Procures in accordance with the conditions set forth in subpart C as applicable, and
(ii) Except as provided otherwise in § 201.22, pays no more than the lowest available competitive price, including transportation cost, for the commodity.
(b) Responsibility of supplier. In accordance with the provisions contained in the Supplier’s Certificate, which the supplier must execute in order to receive payment, the supplier is responsible for compliance with the provisions of this subpart G, other than paragraph (a) of this section.
§ 201.63 Maximum prices for commodities.
(a) U.S. prevailing market price – U.S. source. The purchase price for a commodity, the source of which is the United States, shall not exceed the market price prevailing in comparable export sales in the United States at the time of purchase, adjusted for differences in the transportation cost: Provided, however, That if there are no such comparable export sales, then the purchase price, excluding transportation cost, may not exceed the market price prevailing in comparable domestic sales in the United States at the time of purchase, adjusted upward or downward by the appropriate export differential.
(b) U.S. prevailing market price – non-U.S. source. The purchase price, including transportation cost, for a commodity the source of which is not the United States shall be lower than the market price prevailing in comparable export sales in the United States at the time of purchase including transportation cost: Provided, however, That if there are no such comparable export sales in the United States, then the purchase price from the source outside the United States, including transportation cost, must be lower than the market price prevailing in comparable domestic sales in the United States at the time of purchase, adjusted upward or downward by the appropriate export differential and transportation cost.
(c) Supplier’s comparable export price – U.S. and non-U.S. sources. (1) The purchase price excluding transportation cost, shall not exceed prices generally charged by the supplier in comparable export sales from the source country at the time of purchase.
(2) The requirement in paragraph (c)(1) of this section shall not apply to the purchase price:
(i) In any sale under formal competitive bid procedures; or
(ii) In any sale of a commodity generally traded on an organized commodity exchange.
(3) Comparable export sales for the purpose of paragraph (c) of this section shall not include sales:
(i) Under formal competitive bid procedures; or
(ii) Of a commodity by a supplier to affiliates if the supplier demonstrates an established practice of selling the commodity to affiliates at prices lower than the prices it charges to nonaffiliates.
(d) Source country prevailing market price – non-U.S. source. The purchase price, excluding transportation cost, shall not exceed the market price prevailing in the source country in comparable export sales at the time of purchase: Provided, however, That, if there are no such comparable export sales, then the purchase price, excluding transportation cost, shall not exceed the market price prevailing in comparable domestic sales in the source country at the time of purchase, adjusted upward or downward by the appropriate export differential.
(e) Price test in the absence of comparable sales at time of purchase – (1) Sale by supplier who is not the producer. The purchase price shall not exceed the sum of:
(i) The lower of the following: The price paid by the supplier for the commodity or the price charged by the producer in the original sale of that specific commodity; and
(ii) A markup over the amount allowed in paragraph (e)(1)(i) of this section which may not exceed the lower of the following: The markup over direct cost that is usual and customary in sales by the supplier of the same commodity, if any, or the most similar commodity, or, the markup over direct cost that is usual and customary in such sales by the competitors of the supplier; and
(iii) To the extent not included in paragraph (e)(1)(i) of this section an amount not to exceed the cost at prevailing rates of those expenses recognized in § 201.64(a) and actually incurred in moving the commodities supplied from the point of purchase to a position alongside or on board the vessel or other export conveyance at point of export.
(2) Sale by a supplier who is the producer. The purchase price shall not exceed a price established in accordance with the customary pricing practices of the supplier for other products of the same general class as the commodity sold.
(f) Additional rules for sales through or out of a free port or bonded warehouse. (1) The purchase price, including transportation costs to a cooperating country, of a commodity which has passed through a free port or bonded warehouse shall not exceed:
(i) The maximum price f.o.b. or f.a.s. source country eligible for USAID-financing under the foregoing provisions of this § 201.63: plus
(ii) Transportation cost calculated on the basis of the prevailing ocean freight rate for shipments using the most direct route from the source country to the cooperating country on the type and flag of vessel on which the commodity actually moved from the free port or bonded warehouse to the cooperating country.
(2) The purchase price of a commodity f.o.b. or f.a.s. a free port or bonded warehouse shall not exceed the maximum price established in paragraph (f)(1) of this section, minus transportation costs from the free port or bonded warehouse to the cooperating country, calculated on the basis of the prevailing ocean freight rate from the free port or bonded warehouse to the cooperating country for the type and flag of vessel on which the commodity actually moved between those points.
(g) Commodity price subject to escalation. If a purchase contract contains a price escalation clause, USAID will finance:
(1) The purchase price of the commodity before the operation of the escalation clause to the extent that it does not exceed the applicable price limitations contained in this subpart; and
(2) That portion of the commodity price attributable to the operation of the price escalation clause if such clause:
(i) Uses a formula based on variations in a cost factor which is reasonably related to the price of the commodity subject to escalation and is readily determinable;
(ii) Provides for downward as well as upward adjustment of the price; and
(iii) Accords with recognized trade practices.
§ 201.64 Application of the price rules to commodities.
(a) Calculation of commodity prices on a common basis. In testing whether the purchase price of a commodity exceeds the price in comparable export sales or in comparable domestic sales, as applicable under § 201.63 (a), (c), (d) and (e), it is necessary to insure that the price being tested as well as the prices being used as a test or measurement are calculated on the basis of delivery alongside or on board the vessel or other export conveyance. Such prices will include, therefore, in addition to the price of the commodity at an internal point in the source country, transportation from that point to the port of export in the source country, and to the extent not already included in the price at the internal point, inspection, export packing, forwarder’s fees at customary rates, the cost of placing the commodities on board the vessel or export conveyance (unless this cost is covered in the export freight), and other necessary costs customary in the trade.
(b) Calculation of commodity prices which involve transportation costs. (1) In testing the purchase price which includes transportation cost (customarily known as a c. & f. or c.i.f. price) for compliance with the requirements of § 201.63 (a), (c), (d) and (e), USAID will subtract transportation cost as calculated by reference to the freight rate, for the type and flag of vessel on which the commodity was shipped, prevailing on the date the purchase price is fixed. In the absence of evidence to the contrary, the actual transportation cost paid by the supplier shall be presumed to be the transportation cost calculated in accordance with the formula contained in the foregoing sentence.
(2) In testing a purchase price involving transportation cost for compliance with § 201.62 and § 201.63(b), the test or measurement prices shall be:
(i) Prices based upon transportation by a U.S.-flag vessel if the price tested involves transportation by such vessel; or
(ii) Prices based upon transportation by either a U.S.-flag or a foreign-flag vessel, whichever is lower, if the price tested involves transportation by a foreign-flag vessel.
(c) Calculation of amount eligible for financing when shipment is through or out of a free port or bonded warehouse. (1) When a shipment to a cooperating country has passed through a free port or bonded warehouse, USAID will finance no more than the lower of the following:
(i) The maximum price described in § 201.63(f)(1), or
(ii) The maximum price described in § 201.63(f)(1)(i), plus any transportation costs into the free port or bonded warehouse which meet the requirements of § 201.13(b)(1)(i)(D), and any transportation costs out of the free port or bonded warehouse on a vessel flying the flag of a country included in the authorized geographic code.
(2) When a shipment is f.o.b. or f.a.s. a free port or bonded warehouse, USAID will finance no more than the lower of the following:
(i) The maximum price described in § 201.63(f)(2), or
(ii) The maximum price described in § 201.63(f)(1)(i), plus any transportation costs into the free port or bonded warehouse which meet the requirements of § 201.13(b)(1)(i)(D).
(d) Determination of prevailing prices. In the determination of any prevailing market price of any commodity or any prevailing price or maximum eligible freight rate for a commodity related service, relevant published and unpublished price information will be considered.
§ 201.65 Commissions, discounts and other payments, credits, benefits and allowances.
(a) General. This section sets forth the rules which govern the eligibility of commissions, discounts and certain other payments, credits, benefits and allowances for USAID-financing.
(b) Commissions to sales agents. Unless otherwise provided in the implementing document, a commission paid, or to be paid, to a bona fide agent of the supplier is eligible for financing under this part, if such agent either has made a direct and substantial contribution toward securing the purchase contract for the supplier or is engaged on a continuing basis in securing similar contracts for the supplier. Such commissions are eligible to the extent they comply with § 201.65(f).
(c) Commissions and other payments, credits, benefits or allowances to importers, purchasing agents and others. Unless otherwise authorized by USAID, no commission or other payment, credit, benefit or allowance of any kind shall be paid, made, or given, or agreed to be paid, made or given, in connection with any sale subject to this part by the supplier or its agent:
(1) To or for the benefit of the importer;
(2) To or for the benefit of a purchasing agent or other agent or representative of an importer, even though such agent or representative may also have an agreement with a supplier to represent the supplier; or
(3) To any third party in connection with a sale by the supplier to its dealer, distributor, or established agent in the cooperating country.
(d) Trade discounts. To arrive at the net amount eligible for USAID-financing, all trade discounts, whether in the form of payments, credits, or allowances, to which the importer is entitled shall be deducted from the gross amount of the supplier’s invoice submitted under § 201.52(a)(2)(i)(D).
(e) Commissions and other payments or benefits attributable to USAID-financing. Every commission or other payment, credit, benefit, or allowance of any kind paid, made or given, or agreed to be paid, made or given, in connection with the sale of commodities financed under this part to any person described in § 201.65(c) (1), (2) or (3) shall be presumed conclusively to have been paid from USAID funds and shall thereby be subject to the requirements of this part 201.
(f) Maximum commission. A commission shall not exceed the lesser of the amount which the supplier customarily pays in connection with similar transactions or the amount which is customary in the trade.
(g) Reporting. All commissions and other payments, credits, benefits or allowances of any kind paid, made or given, or agreed to be paid, made or given, by the supplier in connection with USAID-financed sales of commodities and commodity-related services shall be fully reported on the Invoice-and-Contract Abstract of the Supplier’s Certificate required under § 201.52(a)(6). Any such amounts not reported shall be ineligible for USAID-financing.
(h) Brokerage commission. In connection with ocean freight services, USAID will finance a brokerage commission only if:
(1) Such commission does not exceed 2
(2) Such commission is payable to an individual resident in a country included in the authorized source code; a non-resident citizen of a country included in the authorized source code; or a corporation or partnership organized under the laws of a country included in the authorized source code; and
(3) The names of all persons receiving such commissions appear on the face of the charter party.
(i) Address commissions. An address commission to or for the benefit of a charterer shall be deemed a discount on the stated freight rate or freight charge which the supplier of transportation services shall deduct from the cost of transportation financed by USAID. If the supplier of the commodity is the charterer, it shall refund to USAID any address commission received by it. If the supplier of the commodity is not the charterer, the borrower/grantee shall be responsible for making a refund to USAID of any such commissions received by the charterer.
§ 201.66 Side payments.
Any payment which an importer makes to a supplier, whether or not indicated on the supplier’s invoice and whether or not financed by USAID, in connection with an USAID-financed transaction, shall be disclosed by the supplier on the Supplier’s Certificate and shall be considered as part of the actual purchase price in applying the rules of this subpart G.
§ 201.67 Maximum freight charges.
(a) Ocean freight rates – (1) Similar shipments. Similar shipments means shipments which are similar with respect to type of commodity, commodity rate classification, quantity, vessel flag category (U.S.-or foreign-flag), choice of ports, and other pertinent factors. In determining whether shipments are similar, no effect shall be given to the identity of the shipper or the circumstance that the shipment is or is not financed by the Government of the United States.
(2) Maximum charter rates. (i) USAID will not finance ocean freight under any charter which has not been submitted to and received prior approval by USAID/W. USAID will not approve a charter if the freight rate exceeds:
(A) The rate prevailing for similar shipments; or
(B) The lowest rate charged by the vessel for similar shipments on the same voyage.
(ii) In determining the rate prevailing for similar shipments, recognized sources of charter market rate information will be consulted and, if necessary, will be supplemented by other information which contributes to a realistic determination of the prevailing charter rate.
(3) Effect of USAID approval of a charter. USAID prior approval of a charter shall be confirmed by USAID in writing and shall then be final except in cases where the freight rate exceeds the lowest rate charged by the vessel for similar shipments on the same voyage or where USAID’s prior approval is based on false or misleading representations made to USAID by the charterer or vessel owner(s).
(4) Maximum liner rates. USAID will not finance ocean freight for a cargo liner shipment at a rate which exceeds the lowest of the following:
(i) The conference contract rate or the conference noncontract rate, whichever is lower;
(ii) The rate named in any tariff or other rate listing for the same destination and commodities on file at the Federal Maritime Commission; or
(iii) The lowest rate charged by the VOCC for similar shipments on the same voyage.
(5) Despatch. (i) The borrower/grantee, or the supplier with respect to despatch earned by the supplier, shall be responsible for refunding to USAID all despatch earned:
(A) At the port of unloading on c.i.f. or c. & f. shipments, or
(B) At the port of loading or unloading on f.o.b. or f.a.s. shipments, to the extent that despatch exceeds demurrage incurred on the same voyage.
(ii) Refunds of despatch, supported by the vessel’s signed laytime statement(s), must be transmitted to the Office of Financial Management, USAID, Washington, DC 20523-7702, within 90 days after date of discharge of cargo on which the despatch was earned.
(b) Airfreight rates. USAID will not finance airfreight which exceeds the following:
(1) The rate under any air charter approved by USAID covering the transaction;
(2) The lowest rate charged by the carrier for similar shipments on the same flight; or
(3) The rate prevailing in the industry for similar shipments. A similar shipment is one which is similar with respect to type of commodity, commodity rate classification, quantity, flag category, choice of airport, and other pertinent factors.
(a) The price for an USAID-financed commodity-related service, other than ocean or air transportation, shall not exceed the lower of:
(1) The prevailing price, if any, for the same or similar services; or
(2) The price paid to the supplier under similar circumstances by other customers.
(b) The eligible price of services covered by an NVOCC bill of lading is limited to the sum of the costs of individual delivery services eligible under § 201.13 of this part, and only to the extent that the cost of each such service is eligible for USAID-financing under § 201.67 or § 201.68(a) of this part.
§ 201.69 Cooperating country taxes and fees.
USAID will not finance any taxes or fees imposed under the laws in effect in the cooperating country, including customs duties, consular and legalization fees, and other levies.
Subpart H – Rights and Responsibilities of Banks
§ 201.70 Purpose.
This subpart sets forth the rights and responsibilities of banks with regard to reimbursement under a letter of commitment opened pursuant to an USAID request. Banks will not be held responsible for the requirements of subparts B, C, D, E (excluding § 201.44(a)(1)), and subpart G except insofar as provisions of these subparts are included in this subpart H or in a letter of commitment issued by USAID to a bank.
§ 201.71 Terms of letters of credit.
Any letter of credit issued, confirmed or advised under an USAID letter of commitment and any agreement relating to such letter of credit or to instructions for payment issued by an approved applicant shall not be inconsistent with or contrary to the terms of the letter of commitment. Any such letter of credit or agreement may be modified or extended at any time in such a manner and to such extent as is acceptable to the approved applicant and the bank: Provided, That such modification or extension may not be inconsistent with or contrary to the terms of the letter of commitment. In the case of any inconsistency or conflict between the terms and conditions of the letter of commitment and the instructions of the approved applicant, the terms and conditions of the letter of commitment shall control.
§ 201.72 Making payments.
(a) Collection of documents. The bank shall be responsible for obtaining the documents specified in subpart F and in the letter of commitment when making payment under a letter of credit pursuant to instructions of an approved applicant.
(b) Examination of documents other than Supplier’s Certificate. The bank shall examine the documents (other than the Supplier’s Certificate and the Commodity Approval Application) to be submitted to USAID in accordance with good commercial practice to determine whether such documents comply with the requirements of paragraphs (b) (1) through (7) of this section in the following particulars, and no other.
(1) Shipment. The documents submitted as evidence of the shipment of commodities under § 201.52(a)(4) shall be dated within the shipping period, if any, specified in the letter of commitment. The bill of lading shall contain the carrier’s statement of charges whether or not freight is financed by USAID.
(2) Source of commodities. The documents submitted in connection with the claim for reimbursement on commodities may not indicate that the source of the commodities is inconsistent with the USAID geographic code designation contained in the letter of commitment.
(3) Destination. The documents submitted shall indicate that the destination of the commodities, by shipment, transshipment, or reshipment, is the cooperating country named in the letter of commitment.
(4) Description. The documents shall describe and identify the commodities or services in a manner which, according to good commercial practice, is not inconsistent with the description contained in the letter of credit or payment instructions issued under a letter of commitment. The bank shall not be required to determine whether the supplier’s invoice meets the detailed requirements of § 201.52(a)(2)(i).
(5) Discounts and purchasing agents’ commissions. If the documents disclose that the invoice price includes either discounts or commissions payable to purchasing agents, the bank shall not make payment of such discounts and commissions. In the absence of such information, however, the bank shall not be required to make independent inquiry as to whether the invoice price includes such items.
(6) Certifications. Each supplier’s invoice presented for payment shall contain such other certifications as may be required in the letter of commitment. The bank shall accept only certifications which, to the best of its knowledge and belief, have been signed by hand.
(7) Other requirements. The documents submitted shall contain such other information as required by the letter of commitment, except that the bank shall have responsibility in this regard only to the extent specifically indicated in the letter of commitment.
(c) Acceptance of certificates. A bank shall not accept for submission to USAID the original of the Supplier’s Certificate, or the Commodity Approval Application, unless, to the best knowledge and belief of the bank, each such original has been signed by hand by the supplier and the Commodity Approval Application has been countersigned by USAID.
§ 201.73 Limitations on the responsibilities of banks.
The following general limitations on the responsibilities of banks issuing, advising, or confirming letters of credit and making payments under letters of credit or otherwise shall apply.
(a) Sufficiency and completeness of documents. Any document, including the Supplier’s Certificate and the Commodity Approval Application, submitted by a bank to USAID in support of a claim for reimbursement, shall be sufficient if it purports to be the sort required to be delivered and if it has been accepted by the bank in the ordinary course of business in good faith. Except as may be required in the discharge of its responsibilities under § 201.72 (b) and (c), the bank’s right of reimbursement shall not be affected by the fact that any document required to be submitted by it is incomplete or may indicate noncompliance with any provision of this part.
(b) Reimbursement right notwithstanding certain deficiencies. A bank’s right to reimbursement from USAID for payments which the bank has made will not be affected by the fact that the Commodity Approval Application or the Invoice-and-Contract Abstract on the reverse of the Supplier’s Certificate may be incomplete, or may indicate noncompliance with any provision of this part 201, the letter of commitment, or any other implementing document, or may be inconsistent with other documents required for reimbursement.
(c) Nonresponsibility of bank for truth or accuracy of statements or certifications. The bank shall not be responsible for the truth or accuracy of any information or statement contained in any Supplier’s Certificate or any other document certification to be submitted by it to USAID, notwithstanding any knowledge or information in the actual or constructive possession of the bank to the contrary. The bank shall not be obligated to look beyond the documents, including any certifications endorsed thereon, to be submitted by it or to make any independent investigation as to the truth or accuracy of any information or statement contained therein.
(d) Protection of bank making payment. Acceptance by the bank of any document in the ordinary course of business in good faith as being a genuine and valid document and sufficient in the premises, and the delivery thereof to USAID, shall constitute full compliance by the bank with any provision of this part, the letter of commitment requiring delivery of a document of the sort that the document actually so delivered purports to be. The bank shall be entitled to receive and retain reimbursement of the amount of all payments made by it against documents so accepted, notwithstanding that such payments may be made in connection with a purchase in excess of the price calculated in accordance with the applicable provisions of subpart G.
(e) Payment to third persons. The bank’s right of reimbursement shall not be affected by the fact that payment is made to the approved applicant or at the request of the approved applicant or such beneficiary to a person other than the supplier under the contract to which such payment relates, if the bank has complied with all other requirements of the letter of commitment and has satisfied itself in good faith that the person to whom it makes payment has, in turn, made payment to the supplier.
(f) Bank procedures with regard to certain suppliers. In the event a bank receives written advice from USAID concerning special conditions which are applicable to transactions of particular suppliers, such bank will use reasonable care to maintain procedures designed to ensure that accommodations thereafter furnished by it with respect to such suppliers by means of the issuance, confirmation, advising or transfer of letters of credit, or the making of payments not under letters of credit shall reflect such special conditions. While banks are expected to comply with the foregoing obligation, a bank which has used reasonable care to establish and maintain such procedures will not be responsible for any inadvertent furnishing of any such accommodation not containing applicable special conditions or the making of payment thereunder. For the purpose of ascertaining whether the supplier is a person or organization subject to an USAID advice concerning special conditions applicable to its transactions under this paragraph, a bank, in making payment under a letter of credit or otherwise, may consider as supplier the person or organization issuing the invoice.
(g) Provision of implementing documents. A bank shall not be responsible for compliance with any provision of an implementing document other than a letter of commitment.
§ 201.74 Additional documents for USAID.
In addition to the documents required for reimbursement, a bank shall retain in its files for a period of at least 3 years and shall make available to USAID promptly upon request a copy of any of the following documents which may pertain to an USAID-financed transaction:
(a) Each letter of credit issued, confirmed, or advised by it, together with any extension or modification thereof;
(b) Payment instructions received from the approved applicant;
(c) Each application and agreement relating to such letter of credit or instructions for payment, together with any extension or modification thereof;
(d) A detailed advice of the interest, commissions, expenses, or other items charged by it in connection with each such letter of credit or payment instructions.
§ 201.75 Termination or modification.
If USAID directs that the delivery of commodities be terminated, orders that title to commodities be vested in it, or modifies any implementing document concerning the disposition of documents, USAID shall give written notice thereof to the banks holding applicable letters of commitment and shall instruct each bank with regard to the disposition of documents. Each such bank shall be relieved of any liability whatsoever to the approved applicant for anything done or omitted to be done under instruction of USAID. Notwithstanding the foregoing, a bank shall comply with the instructions of USAID only to the extent that it may do so without impairing or affecting any irrevocable obligation to any person or organization except an approved applicant, and in the event the bank shall incur any costs, expenses, or liabilities, including any liability to the approved applicant, it shall be repaid and reimbursed by USAID in respect thereof.
Subpart I – Rights and Remedies of USAID, and Waiver Authority
§ 201.80 Purpose.
This subpart sets forth certain USAID rights and remedies against borrower/grantees and suppliers, and prescribes certain general provisions relating to the waiver by USAID of this part.
§ 201.81 Rights of USAID against borrower/grantees.
If any transaction financed hereunder violates the requirements of this part or any U.S. statute or any rule or regulation of USAID promulgated under any such statute, USAID may require the borrower/grantee to refund the amounts USAID determines are attributable to such violation and may exercise any right of acceleration or termination contained in the implementing document. The borrower/grantee shall be deemed to have agreed to make such refund or accelerated payment promptly upon request by USAID and shall be deemed to have consented to any modification of the implementing document determined by USAID to be necessary to reflect any such refund or acceleration.
§ 201.82 Rights of USAID against suppliers.
Without limiting the responsibility of the borrower/grantee or other parties, USAID may require an appropriate refund to it by a supplier under any transaction which violates the requirements of this part, whenever in USAID’s opinion the failure of the supplier to comply with the rules and other requirements of this part has contributed to such violation. Any refund requested will include interest from the time of payment to the supplier. Interest will be charged at the rate established by the Secretary of the Treasury in accordance with the Internal Revenue Code, 26 U.S.C. 6621(b).
§ 201.83 No waiver of alternative rights or remedies by USAID.
No right reserved to USAID in this subpart to seek a refund from a borrower/grantee, and no exercise of such right, whether or not successful, shall in any way limit or affect, under the doctrine of the election of remedies or otherwise, USAID’s rights against a supplier under this subpart I or under the laws of the United States, or of any other country or political subdivision thereof, nor shall any right or remedy herein reserved to USAID against a supplier in any way derogate from or otherwise limit any other rights or remedies which may accrue to USAID under such laws.
§ 201.84 Limitation on period for making refund requests.
USAID will endeavor, but shall not be bound, to make any requests for refunds from a borrower/grantee within three years from the date of the last disbursement of USAID funds for the transaction to which such request relates.
§ 201.85 Legal effect of USAID approvals and decisions.
In any transaction subject to this part 201, USAID may reserve certain rights to approve the transaction for USAID-financing. USAID, in reserving any approval rights, acts solely as a financing entity to assure the proper use of United States Government funds. Any decision by USAID to exercise or refrain from exercising these approval rights shall be made as a financier and shall not be construed as making USAID a party to the contract or incurring any liability to the parties jointly or to any of them.
USAID may waive, withdraw, or amend at any time any or all of the provisions of this part.
Appendix A to Part 201 – Supplier’s Certificate and Agreement With the Agency for International Development (AID 282)
Appendix B to Part 201 – Application for Approval of Commodity Eligibility (AID 11)
PART 202 – OVERSEAS SHIPMENTS OF SUPPLIES BY VOLUNTARY NON-PROFIT RELIEF AGENCIES
§ 202.1 Definition of terms.
(a) The Administrator means the Administrator of the Agency for International Development.
(b) The Committee means the Advisory Committee on Voluntary Foreign Aid of the Agency for International Development.
(c) Supplies means development, relief and rehabilitation supplies shipped in support of programs approved by AID as well as administrative supplies and equipment shipped in support of such programs. In no case shall such supplies include items for the personal use of representatives of the registered agency.
(d) Agency or agencies means the American Red Cross and any United States voluntary non-profit relief agency registered with and approved by the Committee.
(e) Duty free means exempt from all customs duties, and other duties, tolls, and taxes of any kind.
(f) Recipient country means any country or area in which voluntary non-profit relief agencies registered with and approved by the Advisory Committee on Voluntary Foreign Aid have programs approved by AID.
(g) Reimbursement means (1) payment directly to an agency by AID, or (2) payment to an agency by a banking institution in the United States acting under letter of commitment issued by AID guaranteeing subsequent reimbursement to the banking institution of such payment.
(h) Port of entry means an ocean port in the recipient country.
(i) Point of entry means the first customs point, or any otherwise designated point in a recipient country which receives imported commodities via an ocean port not located in the recipient country.
§ 202.2 Shipments eligible for reimbursement of freight charges.
(a) In order to further the efficient use of United States voluntary contributions for development, relief, and rehabilitation in nations or areas designated by the Administrator of AID from time to time, agencies may be reimbursed by AID within specified limitations for freight charges incurred and paid in transporting supplies donated to or purchased by such agencies from United States ports or, in the case of excess or surplus property supplied by the United States, from foreign ports to ports of entry in the recipient country or to points of entry in the recipient country in cases (1) of landlocked countries, (2) where ports cannot be used effectively because of natural or other disturbances, (3) where carriers to a specified country are unavailable, or (4) where a substantial savings in costs or time can be effected by the utilization of points of entry other than ports.
(b) Shipments shall be eligible for reimbursement of freight charges only as authorized by the issuance by AID of a Procurement Authorization (Form AID 1160-4).
(c) The Office of Commodity Management, Bureau for Program and Management Services, AID, shall be responsible for determining when carriers are “unavailable.”
§ 202.3 Freight reimbursement limitations.
Economic utilization of AID funds available for reimbursement to agencies for freight charges incurred and paid by such agencies for the shipment of donated or purchased supplies to a recipient country requires the following limitations on amounts reimbursable:
(a) Ocean freight. The amount of ocean freight charges reimbursable to an agency is limited to the actual cost of transportation of the supplies as assessed by the delivering carrier either in accordance with its applicable tariff for delivery to the discharge port or in accordance with the applicable charter or booking contract at a rate not exceeding the prevailing rate, if any, for similar freight services, or the rate paid to the supplier of ocean transportation for similar services by other customers similarly situated, as attested to by the supplier in Block 13 of Form AID 1550-1, entitled “Voluntary Agency and Carrier Certificate.” (See § 202.4(a).)
(b) Inland freight. The amount of inland freight charges reimbursable to an agency is limited to the actual cost of transportation of supplies from pickup point in initial port of discharge to designated point of entry in the recipient country at a rate negotiated by the agency representative as attested to by such agency representative in Block 14 of Form AID 1550-1, entitled “Voluntary Agency and Carrier Certificate.” (See § 202.4(b).)
(c) Related shipping costs. Where inland freight charges are reimbursed, expenses incurred in transferring supplies from ocean carrier to inland carrier may be reimbursed to the agency when such expenses are not for account of the ship nor included in the inland transportation charges.
§ 202.4 Certificates.
Certificates will be required as follows:
(a) Ocean transportation. The supplier of ocean transportation will execute Form AID 1550-1, entitled “Voluntary Agency and Carrier Certificate,” in an original and two copies.
(b) Inland transportation and related shipping costs. Where inland transportation, including related shipping costs, is reimbursable under provisions of § 202.3, the representative of the agency will execute Form AID 1550-1, entitled “Voluntary Agency and Carrier Certificate,” in an original and two copies when, in the absence of published tariffs or a prevailing rate, it is necessary to negotiate for the shipment of the supplies.
§ 202.5 Approval of programs, projects and services.
(a) Prior to applying for reimbursement for freight charges, an agency must obtain AID’s written approval of its programs by submitting the following information to the Chief, Public Liaison Division, Office of Private and Voluntary Cooperation, Bureau for Private and Development Cooperation, Agency for International Development, Department of State, Washington, DC 20523.
(1) A narrative description detailing the agency’s specific country programs, objectives, projects, or services of relief, rehabilitation, disaster assistance, development assistance and welfare;
(2) Except as provided for in paragraph (b) of this section, evidence that written assurances have been obtained from the government of the recipient country that:
(i) Appropriate facilities are or will be afforded for the necessary and economical operations of the program, project, or service;
(ii) The specific program, project, or service has been accepted;
(iii) The supplies provided in support of the program, project or service will be free of customs duties, other duties, tolls and taxes;
(iv) The supplies will be treated as a supplementary resource;
(v) The supplies will be identified, to the extent practicable, as being of United States origin; and
(vi) Insofar as practicable, the supplies will be received, unloaded, warehoused, and transported cost-free to points of distribution;
(3) Evidence that:
(i) Shipments will be made only to consignees reported to AID, and full responsibility is assumed by the agency for the noncommercial distribution of the supplies free of cost to the persons ultimately receiving them, or in special cases and following notice to AID, for the sale to recipients at nominal cost or as payment for work performed to promote projects of self-help and economic development, but in no case shall supplies be withheld from needy persons because of their inability to pay or work; and
(ii) Distribution is made solely on the basis of need without regard to race, color, religion, sex or national origin;
(iii) That paragraphs (a)(3) (i) and (ii) of this section are conducted under the supervision of the agency’s representative specifically charged with responsibility for the program or project.
(b) Compliance with paragraph (a)(2) of this section is not required when the specific program, project, or service is within the scope of any agreement that has been concluded between the U.S. Government and the Government of the recipient country which furthers the operations of an agency acceptable to the recipient country.
(c) On approval of the agency’s programs written notice thereof will be issued by AID to the agency.
§ 202.6 Application for reimbursement of freight charges.
(a) Any agency may make application for reimbursement of freight charges incurred and paid on shipments eligible under § 202.2 provided:
(1) The agency has received AID’s written approval of the programs, projects, and services in accordance with § 202.5.
(2) The application for reimbursement of freight charges together with documentation required under § 202.7 is submitted to the Agency for International Development, Attention: Banking and Finance Division, Office of Financial Management, Washington, DC 20523, or to a U.S. bank holding an AID letter of commitment.
(b) In the case of ocean transportation, the application must be submitted within 60 days of the date of the related ocean bill of lading. In the case of inland transportation the application must be submitted within 180 days of the date of the related ocean bill of lading.
§ 202.7 Documentation required for reimbursement.
Claims for reimbursement of freight charges must be supported by the following documents:
(a) Voucher SF 1034. “Public Voucher for Purchases and Services Other than Personal” – Voucher SF 1034 in original and three copies to be prepared by the agency requesting reimbursement of freight charges.
(b) Bills of lading – (1) To ports of entry. Where the shipment is made to a port of entry, ocean or charter party bill of lading (or photostat) evidencing shipment from an eligible port of export as prescribed in § 202.2(a) to the port of entry. The bill of lading shall indicate the carrier’s complete statement of charges including all relevant weights, cubic measurements, rates, and any applicable tariff surcharges.
(2) To points of entry. (i) Where the shipment is made to a point of entry and through bills of lading to designated point of entry are not issued, an ocean or charter party bill of lading (or photostat) evidencing shipment from an eligible port of export as precribed in § 202.2(a) to the port of discharge, and a receipted copy of the rail, truck, or barge bills of lading (or other acceptable commercial document) covering the transportation of the supplies from the ocean carrier’s point of delivery at port of discharge to point of entry in recipient country, correctly assessed at time of loading by the land carrier for freight on a weight, measurement, or unit basis to point of entry in recipient country and from point of entry to point of delivery in the recipient country. The bill of lading shall indicate the carrier’s complete statement of charges including all relevant weights, cubic measurements, rates and any applicable tariff surcharges.
(ii) Where shipment is made to point of entry and through bills of lading are issued, a receipted copy of the through bill of lading evidencing shipment from an eligible port of export as prescribed in § 202.2(a) to point of entry in the recipient country. The bill of lading shall include the carrier’s complete statement of charges including all relevant weights, cubic measurements, rates, and any applicable tariff surcharges.
(c) Receipted invoices. One copy (or photostat) of the detailed invoice of the supplier of the transportation evidencing payment by the agency to the carrier. If the bills of lading required by paragraph (b) of this section meet the requirements of this subparagraph, no invoice is required.
(d) Voluntary Agency and Carrier Certificate, Form AID 1550-1. (i) As provided in § 202.4(a), the original and two copies of the Voluntary Agency and Carrier Certificate executed by the supplier of ocean transportation, and
(ii) As provided in § 202.4(b), the original and two copies of the Voluntary Agency and Carrier Certificate executed by the Agency.
§ 202.8 Refund by suppliers and/or agencies.
(a) By suppliers. Any supplier of freight to whom freight charges have been financed by AID will promptly refund to AID upon demand the entire amount, or any lesser amount specified, of such freight charges determined by AID to be in excess of the prevailing rate at time of shipment, if any, or the rate paid the supplier for similar services by other customers similarly situated.
(b) By agencies. Any agency to which freight charges have been paid or reimbursed under this Regulation will promptly refund to AID upon demand the entire amount, or any lesser amount specified, of inland transportation and/or related shipping costs, (1) whenever AID determines that the reimbursements were improper as being in violation of the provisions of the Foreign Assistance Act of 1961, and relevant appropriation acts, or any rules, regulations, or procedures of AID promulgated under any of these acts, or (2) whenever it is determined by the agency or AID that any of the supplies for which reimbursement was made have not been accorded duty-free status by the recipient country.
The Administrator may waive, withdraw, or amend from time to time any or all of the provisions of this part.
§ 202.10 Participation by faith-based organizations.
The procedures established under this part shall be administered in compliance with the standards set forth in part 205, Participation by Religious Organizations in USAID Programs, of this chapter.
PART 204 – HOUSING GUARANTY STANDARD TERMS AND CONDITIONS
Subpart A – Definitions
§ 204.1 Definitions.
Wherever used in these standard terms and conditions:
(a) A.I.D. means the United States Agency for International Development or its successor with respect to the housing guaranty authorities contained in title III, chapter 2 of part I of the Foreign Assistance Act of 1961, as amended (the “Act”).
(b) Eligible Note(s) means (a) Note(s) meeting the eligiblity criteria set out in § 204.12 hereof.
(c) Eligible Investor means an “eligible investor” as defined in section 238(c) of the Act.
(d) Lender means an Eligible Investor who initially provides loan funds to the Borrower in exchange for Eligible Note(s).
(e) Investment respecting any Eligible Note means the principal amount of such Eligible Note.
(f) Assignee means the owner of an Eligible Note who is registered as an Assignee on the Note Register of Eligible Notes required to be maintained by the Paying Agent and who is an “Eligible Investor.”
(g) Outstanding Investment respecting any Eligible Note means the Investment less the net amount of any repayments of principal of the Investment made by or on behalf of the Borrower or A.I.D.
(h) Further Guaranteed Payments means the amount of any loss suffered by the Lender or by any Assignee by reason of the Borrower’s failure to comply on a timely basis with any obligation it may have under an Eligible Note to indemnify and hold harmless the Lender and Assignee from taxes or governmental charges or any expense arising out of taxes or any other governmental charges relating to the Note in the country of the Borrower.
(i) Loss of Investment respecting any Eligible Note means an amount in Dollars equal to the total of the (1) Outstanding Investment determined as of the Date of Application, (2) Further Guaranteed Payments unpaid as of the Date of Application, and (3) interest accrued at the rate(s) specified in the Note(s) and unpaid on the Outstanding Investment and Further Guaranteed Payments to and including the date on which full payment thereof is made to the Lender or any Assignee.
(j) Application for Compensation means an executed application in the form of Exhibit A hereto which the Lender or any Assignee files with A.I.D. pursuant to § 204.21 of this part.
(k) Applicant means a Lender or Assignee who files an Application for Compensation with A.I.D.
(l) Date of Application means the effective date of an Application for Compensation filed with A.I.D. pursuant to § 204.21 of this part.
(m) Business Day means a date on which banks of the District of Columbia of the United States of America are open for business.
(n) Guaranty Payment Date means a Business Day not more than sixty (60) calendar days after the related Date of Application; provided that (1) compensation to the party filing the related Application for Compensation is due and payable on such date, in accordance with the terms of this Guaranty and (2) tender of assignment referred to in subsection 204.21(f) is made as therein provided.
Subpart B – The Guaranty
§ 204.11 The Guaranty.
Subject to these standard terms and conditions, the United States of America, acting through A.I.D., agrees to pay to any Lender or Assignee who has been determined to be an Eligible Investor compensation in Dollars equal to its Loss of Investment under the Eligible Note; provided, however, that no such payment shall be made for any such loss arising out of fraud or misrepresentation for which such Lender or Assignee is responsible or of which it had knowledge at the time it became such Lender or Assignee.
§ 204.12 Guaranty eligibility.
(a) Eligible Notes only may be guarantied hereunder, and Eligible Investors only are entitled to the benefits of this Guaranty. Notes in order to achieve Eligible Note status must be signed on behalf of the Borrower, manually or in facsimile, by a duly authorized representative of the Borrower; and they must contain a guaranty legend incorporating these standard terms and conditions signed on behalf of A.I.D. by either a manual signature or a facsimile signature or an authorized representative of A.I.D. together with a certificate of authentication manually executed by a Paying Agent whose appointment by the Borrower is consented to by A.I.D. in a Paying and Transfer Agency Agreement.
(b) A.I.D. shall designate in a certificate delivered to the Lender and to the Paying Agent, the person(s) whose signature shall be binding on A.I.D. The certificate of authentication of the Paying Agent issued pursuant to the Paying and Transfer Agency Agreement shall, when manually executed by the Paying Agent, be conclusive evidence binding on A.I.D. that the Note has been duly executed on behalf of the Borrower and delivered.
§ 204.13 Non-impairment of the guaranty.
The full faith and credit of the United States of America is pledged to the performance of this Guaranty. The Guaranty shall not be affected or impaired by any defect in the authorization, execution, delivery or enforceability of any agreement or other document executed by the Lender, A.I.D., the Paying Agent or the Borrower in connection with the transactions contemplated by this Guaranty. This non-impairment of the guaranty provision shall not, however, be operative with respect to any amount arising out of fraud or misrepresentation for which the Lender or Assignee is responsible or of which it had knowledge prior to the time it became such Lender or Assignee.
§ 204.14 Transferability of guaranty; Note Register.
The Lender of any Assignee may assign, transfer or pledge the Eligible Notes to any Eligible Investor. Any such assignment, transfer or pledge shall be effective on the date that the name of the new Assignee is entered on the Note Register required to be maintained by the Paying Agent pursuant to the Paying and Transfer Agency Agreement. A.I.D. shall be entitled to treat the persons in whose names the Eligible Notes are registered as the owners thereof for all purposes of this Guaranty and A.I.D. shall not be affected by notice to the contrary.
§ 204.15 Paying agent obligations.
Failure of the Paying Agent to perform any of its obligations pursuant to the Paying and Transfer Agency Agreement shall not impair the Investor’s or any Assignee’s rights under this Contract of Guaranty, but may be the subject of action for damages against the Paying Agent by A.I.D. as a result of such failure or neglect; provided, however, that the Paying Agent is not authorized to issue and authenticate and have Notes outstanding at any time in excess of the principal amount of the Loan.
Subpart C – Procedure for Obtaining Compensation
§ 204.21 Event of default; Application for compensation; Payment.
(a) Within one year after an Event of Default, as this term is defined in an Eligible Note, the Lender or Assignee may file with A.I.D. an Application for Compensation in form as provided in Exhibit A. A.I.D. shall make the required payment not later than sixty (60) days after the Date of Application unless A.I.D. has cured the default under § 204.22.
(b) Guaranty Payment. On or before the Guaranty Payment Date, the Applicant shall tender assignment of all Applicant’s right, title and interest as of the Date of Application in and to all sums for which Application has been made. A.I.D. shall accept the assignment and pay or cause to be paid to Applicant and compensation due to the Applicant pursuant to the Guaranty.
§ 204.22 Right of A.I.D. to cure default.
Within sixty (60) days after the Date of Application for Compensation, A.I.D. may at any time make payments to the Lender or any Assignee equal to all installments of principal due and unpaid under any Note (other than installments whose maturity has been accelerated), together with interest on the unpaid principal amount of the Note to the date of such payment by A.I.D., and any Further Guaranteed payments due and unpaid, and thereby prevent or cure any default under the Note. Upon such a payment by A.I.D., if the Lender or Assignee shall have accelerated such Note, such acceleration shall be immediately rescinded or, if such Note shall not have been accelerated, such Note shall not thereafter be accelerated as a result of such Event of Default.
§ 204.23 Payment to A.I.D. of excess amounts received by the lender of any assignee.
If the Lender or Assignee shall, as a result of A.I.D. paying compensation under this Guaranty, receive an excess payment, it shall refund the excess to A.I.D.
Subpart D – Covenants
§ 204.31 Prosecution of claims.
After an assignment to A.I.D. by the Lender or any Assignee pursuant to § 204.21(b), A.I.D. shall have exclusive power to prosecute all claims related to the outstanding Eligible Notes so assigned. If the Lender or such Assignee continues to have an interest in the outstanding Eligible Notes, the Lender or such Assignee and A.I.D. shall consult with each other with respect to their respective interests in such Eligible Notes and the manner of and responsibility for prosecuting claims.
§ 204.32 Change in agreements.
Neither the Lender nor any Assignee will consent to any change or waiver of any provision of any document contemplated by this Guaranty without the prior written consent of A.I.D.
§ 204.33 A.I.D. approval of acceleration of notes.
Without the prior approval of A.I.D., the Lender or any Assignee shall not accelerate any Eligible Notes held by it on account of the happening of an Event of Default other than failure to make a payment when due on the note.
Subpart E – Administration
§ 204.41 Arbitration.
Any controversy or claim between A.I.D. and the Lender or any Assignee arising out of this Guaranty shall be settled by arbitration to be held in Washington, DC in accordance with the then prevailing rules of the American Arbitration Association, and judgment on the award rendered by the arbitrators may be entered in any court of competent jurisdiction.
§ 204.42 Notice.
Any communication to A.I.D. pursuant to this Guaranty shall be in writing in the English language, shall refer to the A.I.D. Housing Guaranty Project Number inscribed on the Eligible Note and shall be complete on the day it shall be actually received by A.I.D. at the address specified below:
§ 204.43 Governing law.
This Guaranty shall be governed by and construed in accordance with the laws of the United States of America governing contracts and commercial transactions of the United States Government.
Exhibit A to Part 204 – Application for Compensation
You are hereby advised that payment of $__________ (consisting of $__________ of principal, $__________ of interest and $__________ in Further Guaranteed Payments as defined in Section 204.01(i) of the Standard Terms and Conditions of the above-mentioned Guaranty
Exhibit B to Part 204 – Assignment
The undersigned, being the registered owner of a Note in the principal amount of $____________ issued by the ____________ (the “Borrower”), pursuant ____________, and guaranty, dated as of ______, ______ the “Guaranty”), between the Lender and the United States of America, acting through the Agency for International Development (“A.I.D.”), hereby assigns to A.I.D., without recourse (i) its entire right, title and interest in and to the Note of the Borrower referred to above (which Note is attached hereto), including its rights to unpaid interest on such Note, and (ii) its entire outstanding right, title and interest arising out of said Loan Agreement with respect to such Note, except the undersigned’s right to receive payments under the Loan Agreement in respect of which A.I.D. has made no payment to the undersigned as of the date hereof.
PART 205 – PARTICIPATION BY RELIGIOUS ORGANIZATIONS IN USAID PROGRAMS
§ 205.1 Grants and cooperative agreements.
(a) Faith-based organizations are eligible, on the same basis as any other organization and considering any reasonable accommodation, as is consistent with Federal law, the Attorney General’s Memorandum of October 6, 2018 (Federal Law Protections for Religious Liberty), and the Religion Clauses of the First Amendment to the U.S. Constitution, to participate in any USAID program for which they are otherwise eligible. In the selection of service-providers, neither USAID nor entities that make and administer sub-awards of USAID funds shall discriminate for, or against, an organization on the basis of the organization’s religious character, affiliation, or exercise. For purposes of this part, to discriminate against an organization on the basis of the organization’s religious exercise means to disfavor an organization, including by failing to select an organization, disqualifying an organization, or imposing any condition or selection criterion that otherwise disfavors or penalizes an organization in the selection process or has such an effect:
(1) Because of conduct that would not be considered grounds to disfavor a secular organization;
(2) Because of conduct that must or could be granted an appropriate accommodation in a manner consistent with RFRA (42 U.S.C. 2000bb through 2000bb-4) or the Religion Clauses of the First Amendment to the Constitution; or
(3) Because of the actual or suspected religious motivation of the organization’s religious exercise.
(4) Notices or announcements of award opportunities shall include language to indicate that faith-based organizations are eligible on the same basis as any other organization and subject to the protections and requirements of Federal law. As used in this section, the term “program” refers to federally funded USAID grants and cooperative agreements, including subgrants and sub-agreements. The term also includes grants awarded under contracts. As used in this section, the term “grantee” includes a recipient of a grant or a signatory to a cooperative agreement, as well as sub-recipients of USAID assistance under grants, cooperative agreements, and contracts.
(b) Organizations that receive direct financial assistance from USAID under any USAID program (including through a prime award or sub-award) may not engage in explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization), as part of the programs or services directly funded with direct financial assistance from USAID. If an organization conducts such activities, the activities must be offered separately, in time or location, from the programs or services funded with direct financial assistance from USAID, and participation must be voluntary for beneficiaries of the programs or services funded with such assistance. Nothing in this part restricts USAID’s authority under applicable federal law to fund activities, such as the provision of chaplaincy services, that can be directly funded by the Government consistent with the Establishment Clause.
(c) A faith-based organization that applies for, or participates in, USAID-funded programs or services (including through a prime award or sub-award) will retain its autonomy, religious character, and independence, and may continue to carry out its mission consistent with religious freedom protections in Federal law, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct financial assistance from USAID (including through a prime award or sub-award) to support or engage in any explicitly religious activities (including activities that involve overt religious content such as worship, religious instruction, or proselytization), or in any other manner prohibited by law. Among other things, a faith-based organization that receives financial assistance from USAID may use space in its facilities, without concealing, altering, or removing religious art, icons, scriptures, or other religious symbols. In addition, a faith-based organization that receives financial assistance from USAID retains its authority over its internal governance, and it may retain religious terms in its organization’s name, select its board members on a religious basis, and include religious references in its organization’s mission statements and other governing documents.
(d) USAID must implement its programs in accordance with the Establishment Clause. Nothing in this part shall be construed as authorizing the use of USAID funds for activities that are not permitted by Establishment Clause jurisprudence or otherwise by law. USAID will consult with the U.S. Department of Justice if, in implementing a specific program involving overseas acquisition, rehabilitation, or construction of structures used for explicitly religious activities, there is any question about whether such funding is consistent with the Establishment Clause. USAID will describe any program implemented after such consultation on its Web site.
(e) An organization that participates in programs funded by financial assistance from USAID (including through a prime award or sub-award) shall not, in providing services, discriminate against a program beneficiary or potential program beneficiary on the basis of religion or religious belief, refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.
(f) No grant document, contract, agreement, covenant, memorandum of understanding, policy, or regulation used by USAID shall require faith-based organizations to provide assurances or notices where the Agency does not require them of non-faith-based organizations. Any restrictions on the use of grant funds shall apply equally to faith-based and non-faith-based organizations. All organizations that participate in USAID’s programs (including through a prime award or sub-award), including faith-based ones, must carry out eligible activities in accordance with all program requirements and other applicable requirements that govern the conduct of USAID-funded activities, including those that prohibit the use of direct financial assistance from USAID to engage in explicitly religious activities. No grant document, contract, agreement, covenant, memorandum of understanding, policy, or regulation used by USAID shall disqualify faith-based organizations from participating in USAID’s programs because such organizations are motivated or influenced by religious faith to provide social services or other assistance, or because of their religious character or affiliation, or on grounds that discriminate against organizations on the basis of the organizations’ religious exercise, as defined in this part.
(g) A religious organization does not forfeit its exemption from the Federal prohibition on employment discrimination on the basis of religion, set forth in section 702(a) of the Civil Rights Act of 1964, 42 U.S.C. 2000e-1, when the organization receives financial assistance from USAID. An organization that qualifies for such exemption may select its employees on the basis of their acceptance of, and/or adherence to, the religious tenets of the organization.
(h) Many USAID grant programs require an organization to be a “nonprofit organization” in order to be eligible for funding. Individual solicitations that require organizations to have nonprofit status will specifically so indicate in the eligibility section of a solicitation. Grantees should consult with the appropriate USAID program office to determine the scope of any applicable requirements. In USAID programs in which an applicant must show that it is a nonprofit organization, other than programs which are limited to registered Private and Voluntary Organizations, the applicant may do so by any of the following means:
(1) Proof that the Internal Revenue Service currently recognizes the applicant as an organization to which contributions are tax deductible under section 501(c)(3) of the Internal Revenue Code;
(2) A statement from a state taxing body or the state secretary of state certifying that:
(i) The organization is a nonprofit organization operating within the State; and
(ii) No part of its net earnings may lawfully benefit any private shareholder or individual;
(3) A certified copy of the applicant’s certificate of incorporation or similar document that clearly establishes the nonprofit status of the applicant; or
(4) Any item described in paragraphs (b)(1) through (3) of this section if that item applies to a state or national parent organization, together with a statement by the State or parent organization that the applicant is a local nonprofit affiliate.
(i) Decisions about awards of USAID financial assistance must be free from political interference or even the appearance of such interference and must be made on the basis of merit, not on the basis of the religious affiliation of a recipient organization, or lack thereof.
(j) Nothing in this part shall be construed as authorizing the use of USAID funds for the acquisition, construction, or rehabilitation of religious structures inside the United States.
(k) The Secretary of State may waive the requirements of this section in whole or in part, on a case-by-case basis, where the Secretary determines that such waiver is necessary to further the national security or foreign policy interests of the United States.
(l) Nothing in this section shall be construed in such a way as to advantage, or disadvantage, faith-based organizations affiliated with historic or well-established religions or sects in comparison with other religions or sects.
PART 206 – TESTIMONY BY EMPLOYEES AND THE PRODUCTION OF DOCUMENTS IN PROCEEDINGS WHERE A.I.D. IS NOT A PARTY
§ 206.1 Purpose and scope.
(a) This part sets forth the procedures to be followed in proceedings in which the U.S. Agency for International Development (the “Agency”) is not a party, whenever a subpoena, order or other demand (collectively referred to as a “demand”) of a court or other authority set forth in § 206.1(d) of this part is issued for the production or disclosure of (1) any material contained in the files of the Agency, (2) any information relating to material contained in the files of the Agency, or (3) any information or material acquired by any person while such person was an employee of the Agency as a part of the performance of his official duties or because of his official status.
(b) For purposes of this part, the term “employee of the Agency” includes all officers and employees of the Agency appointed by, or subject to the supervision, jurisdiction or control of, the Administrator of the Agency, including personal services contractors.
(c) This part is intended to provide instructions regarding the internal operations of the Agency, and is not intended, 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 Agency.
(d) This part applies to:
(1) State and local court, administrative and legislative proceedings.
(2) Federal court and administrative proceedings.
(e) This part does not apply to:
(1) Congressional requests or subpoenas for testimony or documents.
(2) Employees or former employees making appearances solely in their private capacity in legal or administrative proceedings that do not relate to the Agency (such as cases arising out of traffic accidents, domestic relations, etc.). Any question whether the appearance relates solely to the employee’s or former employee’s private capacity should be referred to the General Counsel or his designee.
(f) Nothing in this part affects disclosure of information under the Freedom of Information Act, 5 U.S.C. 552, the Privacy Act, 5 U.S.C. 552a. the Sunshine Act, 5 U.S.C. 552b, or the Agency’s implementing regulations. Nothing in this part otherwise permits disclosure of information by the Agency except as is provided by statute or other applicable law.
§ 206.2 Production or disclosure prohibited unless approved by the General Counsel.
No employee or former employee of the Agency shall, in response to a demand of a court or other authority set forth in § 206.1(d), produce any material or disclose any information described in § 206.1(a) without the approval of the General Counsel or his designee.
§ 206.3 Procedure in the event of a demand for production or disclosure.
(a) Whenever an employee or former employee of the Agency receives a demand for the production of material or the disclosure of information described in § 206.1(a), he shall immediately notify and provide a copy of the demand to the General Counsel or his designee. The General Counsel, or his designee, shall be furnished by the party causing the demand to be issued or served a written summary of the information sought, its relevance to the proceeding in connection with which it was served and why the information sought is unavailable by any other means or from any other sources.
(b) The General Counsel, or his designee, in consultation with appripriate Agency officials, and in light of the considerations listed in § 206.6, will determine whether the person on whom the demand was served should respond to the demand.
(c) To the extent he deems it necessary or appropriate, the General Counsel, or his designee, may also require from the party causing such demand to be issued or served a plan of all reasonably foreseeable demands, including but not limited to names of all employees and former employees from whom discovery will be sought, areas of inquiry, length of time of proceedings requiring oral testimony and identification of documents to be used or whose production is sought.
§ 206.4 Procedure where a decision concerning a demand is not made prior to the time a response to the demand is required.
If the response to the demand is required before the instructions from the General Counsel, or his designee, are received, an attorney designated by the Department of Justice for the purpose shall appear with the employee or former employee upon whom the demand has been made, and shall furnish the court or other authority with a copy of the regulations contained in this part and inform the court or other authority that the demand has been, or is being, as the case may be, referred for the prompt consideration of the General Counsel and shall respectfully request the court or other authority to stay the demand pending receipt of the requested instructions.
§ 206.5 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 206.4 pending receipt of instructions, or if the court or other authority rules that the demand must be complied with irrespective of instructions not to produce the material or disclose the information sought, the employuee or former employee upon whom the demand has been made shall respectfully decline to comply with the demand, citing this part and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
§ 206.6 Considerations in determining whether production or disclosure should be made pursuant to a demand.
(a) In deciding whether to make disclosures pursuant to a demand, the General Counsel, or his designee, may consider, among things:
(1) Whether such disclosure is appropriate under the rules of procedure governing the case or matter in which the demand arose, and
(2) Whether disclosure is appropriate under the relevant substantive law concerning privilege.
(b) Among the demands in response to which disclosure will not be made are those demands with respect to which any of the following factors exist:
(1) Disclosure would violate a statute or a rule of procedure,
(2) Disclosure would violate a specific regulation,
(3) Disclosure would reveal classified information, unless appropriately declassified by the originating agency,
(4) Disclosure would reveal trade secrets or proprietary information without the owner’s consent,
(5) Disclosure would otherwise adversely affect the foreign policy interets of the United States or impair the foreign assistance program of the United States, or
(6) Disclosure would impair an ongoing Inspector General or Department of Justice investigation.
PART 207 – INDEMNIFICATION OF EMPLOYEES
§ 207.01 Policy.
(a) A.I.D. may indemnify, in whole or in part, its employees (which for the purpose of this regulation includes former employees) for any verdict, judgment or other monetary award which is rendered against any such employee, provided that the conduct giving rise to the verdict, judgment or award was taken within the scope of his or her employment with the Agency and that such indemnification is in the interest of the United States, as determined by the Administrator, or his or her designee, in his or her discretion.
(b) A.I.D. may settle or compromise a personal damage claim against its 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 employment and that such settlement or compromise is in the interest of the United States, as determined by the Administrator, or his or her designee, in his or her discretion.
(c) Absent exceptional circumstances, as determined by the Administrator or his or her designee, A.I.D. 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 monetary award.
(d) When an employee becomes aware that an action has been filed against the employee in his or her individual capacity as a result of conduct taken within the scope of his or her employment, the employee should immediately notify A.I.D. that such an action is pending.
(e) The employee may, thereafter, request either: (1) Indemnification to satisfy a verdict, judgment or award entered against the employee or (2) payment to satisfy the requirements of a settlement proposal. The employee shall submit a written request, with documentation including copies of the verdict, judgment, award or settlement proposal, as appropriate, to the General Counsel. The General Counsel may also seek the views of the Department of Justice. The General Counsel shall forward the request and the General Counsel’s recommendation to the Administrator for decision.
(f) Any payment under this part either to indemnify an employee or to settle a personal damage claim shall be contingent upon the availability of appropriated funds.
PART 209 – NON-DISCRIMINATION IN FEDERALLY-ASSISTED PROGRAMS OF THE AGENCY FOR INTERNATIONAL DEVELOPMENT – EFFECTUATION OF TITLE VI OF THE CIVIL RIGHTS ACT OF 1964
§ 209.1 Purpose.
The purpose of this part is to effectuate the provisions of title VI of the Civil Rights Act of 1964 to the end that no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance pursuant to any authority held or delegated by the Administrator of the Agency for International Development.
§ 209.2 Application of this part.
This part applies to all programs carried on within the United States by recipients of Federal financial assistance pursuant to any authority held or delegated by the Administrator of the Agency for International Development, including the types of Federal financial assistance listed in appendix A of this part. (appendix A may be revised from time to time by notice in the
§ 209.3 Definitions.
For purposes of this part –
(a) The term Act means the Civil Rights Act of 1964 (78 Stat. 241).
(b) The term Administrator means the Administrator of the Agency for International Development or any person specifically designated by him to perform any function provided for under this part.
(c) The term applicant means one who submits an application, request or plan required to be approved by the Administrator, or by a primary recipient as a condition to eligibility for Federal financial assistance, and the term “application” means such application, request, or plan.
(d) The term facility includes all or any portion of structures, equipment, or other real or personal property or interests therein, and the provision of facilities includes the construction, expansion, renovation, remodeling, alteration or acquisition of facilities.
(e) The term Federal financial assistance includes (1) grants and loans of Federal funds, (2) the grant or donation of Federal property and interests in property, (3) the detail of Federal personnel, (4) the sale and lease of, and the permission to use (on other than a casual or transient basis) Federal property or any interest in such property without consideration, or at a nominal consideration, or at a consideration which is reduced for the purpose of assisting the recipient, or in recognition of the public interest to be served by such sale or lease to the recipient, and (5) any Federal agreement, arrangement, or other contract which has as one of its purposes the provision of assistance.
(f) The term primary recipient means any recipient which is authorized or required to extend Federal financial assistance to another recipient.
(g) The terms program or activity and program mean all of the operations of any entity described in paragraphs (g)(1) through (4) of this section, any part of which is extended Federal financial assistance:
(1)(i) A department, agency, special purpose district, or other instrumentality of a State or of a local government; or
(ii) The entity of such State or local government that distributes such assistance and each such department or agency (and each other State or local government entity) to which the assistance is extended, in the case of assistance to a State or local government;
(2)(i) A college, university, or other postsecondary institution, or a public system of higher education; or
(ii) A local educational agency (as defined in 20 U.S.C. 7801), system of vocational education, or other school system;
(3)(i) An entire corporation, partnership, or other private organization, or an entire sole proprietorship –
(A) If assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or
(ii) The entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship; or
(4) Any other entity which is established by two or more of the entities described in paragraph (g)(1), (2), or (3) of this section.
(h) The term recipient means any State, political subdivision of any State, or instrumentality of any State or political subdivision, any public or private agency, institution, or organization, or any other entity, or any individual in any State, to whom Federal financial assistance is extended, directly or through another recipient, including any successor, assign, or transferee thereof, but such term does not include any ultimate beneficiary or a sovereign foreign government.
(i) The term United States means the States of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the Canal Zone, and the territories and possessions of the United States, and the term “State” means any one of the foregoing.
§ 209.4 Discrimination prohibited.
(a) General. No person in the United States shall, on the grounds of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance from the Agency for International Development.
(b) Specific discriminatory actions prohibited. (1) A recipient to which this regulation applies may not, directly or through contractual or other arrangements, on the ground of race, color, or national origin:
(i) Deny an individual any service, financial aid, or other benefit provided under the program;
(ii) Provide any service, financial aid, or other benefit to an individual which is different, or is provided in a different manner, from that provided to others under the program;
(iii) Subject an individual to segregation or separate treatment in any matter related to his receipt of any service, financial aid, or other benefit under the program;
(iv) Restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid, or other benefit under the program;
(v) Treat an individual differently from others in determining whether he satisfies any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet in order to be provided any service, financial aid, or other benefit provided under the program;
(vi) Deny an individual an opportunity to participate in the program through the provision of services or otherwise or afford him an opportunity to do so which is different from that afforded others under the program; or
(vii) Deny an individual an opportunity to participate in a program as an employee where a primary objective of the Federal financial assistance is to provide employment.
(2) A recipient, in determining the types of services, financial aid, or other benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such services, financial aid, other benefits or facilities will be provided under any such program or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.
(3) In determining the site or location of facilities, a recipient or applicant may not make selections with the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this regulation applies, on the grounds of race, color or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this regulation.
(4) As used in this section the services, financial aid, or other benefit provided under a program receiving Federal financial assistance shall be deemed to include any service, financial aid, or other benefit provided in or through a facility provided with the aid of Federal financial assistance.
(5) The enumeration of specific forms of prohibited discrimination in this paragraph does not limit the generality of the prohibition in paragraph (a) of this section.
(6) This regulation does not prohibit the consideration of race, color, or national origin if the purpose and effect are to remove or overcome the consequences of practices or impediments which have restricted the availability, or participation in, the program or activity receiving Federal financial assistance, on the grounds of race, color or national origin. Where previous discriminatory practice or usage tends, on the grounds of race, color, or national origin, to exclude individuals from participation in, to deny them the benefits of, or to subject them to discrimination under any program or activity to which this Regulation applies, the applicant or recipient has an obligation to take reasonable action to remove or overcome the consequences of the prior discriminatory practice or usage, and to accomplish the purposes of the Act.
§ 209.5 Assurance required.
(a) General. (1) Every application for Federal financial assistance to which this part applies, except an application to which paragraph (b) of this section applies, and every application for Federal financial assistance to provide a facility shall, as a condition to its approval and the extension of any Federal financial assistance pursuant to the application, contain or be accompanied by an assurance that the program will be conducted or the facility operated in compliance with all requirements imposed by or pursuant to this part. In the case of an application for Federal financial assistance to provide real property or structures thereon, the assurance shall obligate the recipient, or, in the case of a subsequent transfer, the transferee, for the period during which the real property or structures are used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. In the case of personal property the assurance shall obligate the recipient for the period during which he retains ownership or possession of the property. In all other cases the assurance shall obligate the recipient for the period during which Federal financial assistance is extended pursuant to the application. The head of the bureau or office administering the Federal financial assistance shall specify the form of the foregoing assurances and the extent to which like assurances will be required of subgrantees, contractors and subcontractors, transferees, successors in interest, and other participants. Any such assurance shall include provisions which give the United States a right to seek its judicial enforcement.
(2) In the case of real property, structures or improvements thereon, or interests therein, which was acquired withFederal financial assistance, or in the case where Federal financial assistance is provided in the form of a transfer of real property or interest therein from the Federal Government, the instrument effecting or recording the transfer shall contain a covenant running with the land assuring nondiscrimination for the period during which the real property is used for a purpose for which the Federal financial assistance is extended or for another purpose involving the provision of similar services or benefits. Where no transfer of property is involved, but property is improved withFederal financial assistance, the recipient shall agree to include such a covenant in any subsequent transfer of such property. Where the property is obtained from the Federal Government, such covenant may also include a condition coupled with a right to be reserved by the Agency to revert title to the property in the event of a breach of the covenant where, in the discretion of the responsible Agency official, such a condition and right of reverter is appropriate to the statute under which the real property is obtained and to the nature of the grant and the grantee. In such event if a transferee of real property proposed to mortgage or otherwise encumber the real property as security for financing construction of new or improvement of existing facilities on such property for the purposes for which the property was transferred, the Administrator may agree, upon request of the transferee and if necessary to accomplish such financing, and upon such conditions as he deems appropriate, to forbear the exercise of such right to revert title for so long as the lien of such mortgage or other encumbrance remains effective.
(3) Transfers of surplus property are subject to regulations issued by the Administrator of General Services (41 CFR 101-6.2).
(b) Assurances from institutions. (1) In the case of any application for Federal financial assistance to an institution of higher education (including assistance for construction, for research, for a special training project, for student assistance, or for any other purpose), the assurance required by this section shall extend to admission practices and to all other practices relating to the treatment of students.
(2) The assurance required with respect to an institution of higher education or any other institution, insofar as the assurance relates to the institution’s practices with respect to admission or other treatment of individuals as students or clients of the institution or to the opportunity to participate in the provision of services or other benefits to such individuals, shall be applicable to the entire institution.
§ 209.6 Compliance information.
(a) Cooperation and assistance. The Administrator shall to the fullest extent practicable seek the cooperation of recipients in obtaining compliance with this part and shall provide assistance and guidance to recipients to help them comply voluntarily with this part.
(b) Compliance reports. Each recipient shall keep such records and submit to the Administrator timely, complete and accurate compliance reports at such times, and in such form and containing such information, as the Administrator may determine to be necessary to enable him to ascertain whether the recipient has complied or is complying with this part. In the case in which a primary recipient extends Federal financial assistance to any other recipient, such other recipient shall also submit such compliance reports to the primary recipient as may be necessary to enable the primary recipient to carry out its obligations under this part.
(c) Access to sources of information. Each recipient shall permit access by the Administrator during normal business hours to such of its books, records, accounts, and other sources of information, and its facilities as may be pertinent to ascertain compliance with this part. Where any information required of a recipient is in the exclusive possession of any other agency, institution or person and this agency, institution or person shall fail or refuse to furnish this information, the recipient shall so certify in its report and shall set forth what efforts it has made to obtain the information.
(d) Information to beneficiaries and participants. Each recipient shall make available to participants, beneficiaries, and other interested persons such information regarding the provisions of this part and its applicability to the program for which the recipient receives Federal financial assistance, and make such information available to them in such manner, as the Administrator finds necessary to apprise such persons of the protections against discrimination assured them by the Act and this part.
§ 209.7 Conduct of investigations.
(a) Periodic compliance reviews. The Administrator shall from time to time review the practices of recipients to determine whether they are complying with this part.
(b) Complaints. Any person who believes himself or any specific class of individuals to be subjected to discrimination prohibited by this part may by himself or by a representative file with the Administrator a written complaint. A complaint must be filed not later than 90 days from the date of the alleged discrimination, unless the time for filing is extended by the Administrator.
(c) Investigations. The Administrator will make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this part. The investigation should include, where appropriate, a review of the pertinent practices and policies of the recipient, the circumstances under which the possible noncompliance with this part occurred, and other factors relevant to a determination as to whether the recipient has failed to comply with this part.
(d) Resolution of matters. (1) If an investigation pursuant to paragraph (c) of this section indicates a failure to comply with this part, the Administrator will so inform the recipient and the matter will be resolved by informal means whenever possible. If it has been determined that the matter cannot be resolved by informal means, action will be taken as provided for in § 209.8.
(2) If an investigation does not warrant action pursuant to paragraph (d)(1) of this section the Administrator will so inform the recipient and the complainant, if any, in writing.
(e) Intimidatory or retaliatory acts prohibited. No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this part. The identity of complainant shall be kept confidential except to the extent necessary to carry out the purposes of this part, including the conduct of any investigation, hearing, or judicial proceeding arising thereunder.
§ 209.8 Procedure for effecting compliance.
(a) General. If there appears to be a failure or threatened failure to comply with this part, and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with this part may be effected by the suspension or termination of or refusal to grant or to continue Federal financial assistance, or by any other means authorized by law. Such other means may include, but are not limited to, (1) a reference to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States (including other titles of the Act), or any assurance or other contractual undertaking, and (2) any applicable proceeding under State or local law.
(b) Noncompliance with § 209.4. If an applicant fails or refuses to furnish an assurance required under § 209.4 or otherwise fails or refuses to comply with a requirement imposed by or pursuant to that section, Federal financial assistance may be refused in accordance with the procedures of paragraph (c) of this section. The Agency for International Development shall not be required to provide assistance in such a case during the pendency of the administrative proceedings under such paragraph, except that the Agency shall continue assistance during the pendency of such proceedings where such assistance is due and payable pursuant to an application therefor approved prior to the effective date of this part.
(c) Termination of or refusal to grant or to continue Federal financial assistance. No order suspending, terminating, or refusing to grant or to continue Federal financial assistance shall become effective until (1) the head of the bureau or office administering the Federal financial assistance has advised the applicant or recipient of his failure to comply and has determined that compliance cannot be secured by voluntary means, (2) there has been an express finding on the record, after opportunity for hearing, of a failure by the applicant or recipient to comply with a requirement imposed by or pursuant to this part, (3) the action has been approved by the Administrator pursuant to paragraph (e) of § 209.10 and (4) the expiration of 30 days after the Administrator has filed with the committee of the House and the committee of the Senate having legislative jurisdiction over the program involved, a full written report of the circumstances and the grounds for such action. Any action to suspend or terminate or to refuse to grant or to continue Federal financial assistance shall be limited to the particular political entity, or part thereof, or other applicant or recipient as to whom such finding has been made and shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found.
(d) Other means authorized by law. No action to effect compliance by any other means authorized by law shall be taken until (1) the responsible Agency official has determined that compliance cannot be secured by voluntary means, (2) the recipient or other person has been notified of its failure to comply and of the action to be taken to effect compliance, and (3) the expiration of at least 10 days from the mailing of such notice to the recipient or other person. During this period of at least 10 days additional efforts shall be made to persuade the recipient or other person to comply with this part and to take such corrective action as may be approprie.
§ 209.9 Hearings.
(a) Opportunity for hearing. Whenever an opportunity for a hearing is required by § 209.8(c), reasonable notice shall be given by registered or certified mail, return receipt requested, to the affected applicant or recipient. This notice shall advise the applicant or recipient of the action proposed to be taken, the specific provision under which the proposed action against it is to be taken, and the matters of fact or law asserted as the basis for this action, and either (1) fix a date not less than 20 days after the date of such notice within which the applicant or recipient may request of the Administrator that the matter be scheduled for hearing, or (2) advise the applicant or recipient that the matter in question has been set down for hearing at a stated place and time. The time and place so fixed shall be reasonable and shall be subject to change for cause. The complainant, if any, shall be advised of the time and place of the hearing. An applicant or recipient may waive a hearing and submit written information and argument for the record. The failure of an applicant or recipient to request a hearing under this section or to appear at a hearing for which a date has been set shall be deemed to be a waiver of the right to a hearing under section 602 of the Act and § 209.8(c) of this part and consent to the making of a decision on the basis of such information as is available.
(b) Time and place of hearing. Hearings shall be held at the offices of the Agency for International Development in Washington, DC, at a time fixed by the Administrator unless he determines that the convenience of the applicant or recipient or of the Agency requires that another place be selected. Hearings shall be held before the Administrator or before a hearing examiner designated in accordance with 5 U.S.C. 3105 and 3344 (section 11 of the Administrative Procedure Act).
(c) Right to counsel. In all proceedings under this section, the applicant or recipient, and the Agency for International Development shall have the right to be represented by counsel.
(d) Procedures, evidence, and record. (1) The hearing, decision, and any administrative review thereof shall be conducted in conformity with 5 U.S.C. 554-557 (sections 5-8 of the Administrative Procedure Act), and in accordance with such rules of procedure as are proper (and not inconsistent with this section) relating to the conduct of the hearing, giving of notices subsequent to those provided for in paragraph (a) of this section, taking of testimony, exhibits, arguments and briefs, requests for findings, and other related matters. Both the Agency for International Development and the applicant or recipient shall be entitled to introduce all relevant evidence on the issues as stated in the notice for hearing or as determined by the officer conducting the hearing at the outset of or during the hearing.
(2) Technical rules of evidence shall not apply to hearings conducted pursuant to this part, but rules or principles designed to assure production of the most credible evidence available and to subject testimony to test by cross-examination shall be applied where reasonably necessary by the officer conducting the hearing. The hearing officer may exclude irrelevant, immaterial, or unduly repetitious evidence. All documents and other evidence offered or taken for the record shall be open to examination by the parties and opportunity shall be given to refute facts and arguments advanced on either side of the issues. A transcript shall be made of the oral evidence except to the extent the substance thereof is stipulated for the record. All decisions shall be based upon the hearing record and written findings shall be made.
(e) Consolidated or joint hearings. In cases in which the same or related facts are asserted to constitute noncompliance with this part with respect to two or more Federal statutes, authorities, or other means by which Federal financial assistance is extended and to which this part applies or noncompliance with this part and the regulations of one or more other Federal departments or agencies issued under title VI of the Act, the Administrator may, by agreements with such other department or agencies, where applicable, provide for the conduct of consolidated or joint hearings, and for the application to such hearings of rules of procedure not inconsistent with this part. Final decisions in such cases, insofar as this part is concerned, shall be made in accordance with § 209.10.
§ 209.10 Decisions and notices.
(a) Decision by a hearing examiner. If the hearing is held by a hearing examiner such hearing examiner shall either make an initial decision, if so authorized, or certify the entire record including his recommended findings and proposed decision to the Administrator for a final decision, and a copy of such initial decision or certification shall be mailed to the applicant or recipient and the complainant. Where the initial decision is made by the hearing examiner the applicant or recipient may within 30 days of the mailing of such notice of initial decision file with the Administrator his exceptions to the initial decision, with his reasons therefor. In the absence of exceptions, the Administrator may on his own motion within 45 days after the initial decision serve on the applicant or recipient a notice that he will review the decision. Upon the filing of such exceptions or of such notice of review the Administrator shall review the initial decision and issue his own decision thereon including the reasons therefor. The decision of the Administrator shall be mailed promptly to the applicant or recipient and the complainant, if any. In the absence of either exceptions or a notice of review the initial decision shall constitute the final decision of the Administrator.
(b) Decisions on record or review by the Administrator. Wherever a record is certified to the Administrator for decision or he reviews the decision of a hearing examiner pursuant to paragraph (a) of this section, or whenever the Administrator conducts the hearing, the applicant or recipient shall be given reasonable opportunity to file with him briefs or other written statements of its contentions, and a copy of the final decision of the Administrator shall be given in writing to the applicant or recipient and the complainant, if any.
(c) Decisions on record where a hearing is waived. Wherever a hearing is waived pursuant to § 209.9(a) a decision shall be made by the Administrator on the record and a copy of such decision shall be given in writing to the applicant or recipient, and to the complainant, if any.
(d) Rulings required. Each decision of a hearing officer or the Administrator shall set forth his ruling on each finding, conclusion, or exception presented, and shall identify the requirement or requirements imposed by or pursuant to this part with which it is found that the applicant or recipient has failed to comply.
(e) Content of orders. The final decision may provide for suspension or termination of, or refusal to grant or continue Federal financial assistance, in whole or in part, to which this regulation applies and may contain such terms, conditions, and other provisions as are consistent with and will effectuate the purposes of the Act and this part, including provisions designed to assure that no Federal financial assistance to which this regulation applies will thereafter be extended to the applicant or recipient determined by such decision to be in default in its performance of an assurance given by it pursuant to this part, or to have otherwise failed to comply with this part, unless and until it corrects its noncompliance and satisfies the Administrator that it will fully comply with this part.
(f) Post termination proceedings. (1) An applicant or recipient adversely affected by an order issued under paragraph (e) of this section shall be restored to full eligibility to receive Federal financial assistance if it satisfies the terms and conditions of that order for such eligibility or if it brings itself into compliance with this regulation and provides reasonable assurance that it will fully comply with this regulation.
(2) Any applicant or recipient adversely affected by an order entered pursuant to paragraph (e) of this section may at any time request the responsible Agency official to restore fully its eligibility to receive Federal financial assistance. Any such request shall be supported by information showing that the applicant or recipient has met the requirements of paragraph (f)(1) of this section. If the responsible Agency official determines that those requirements have been satisfied, he shall restore such eligibility.
(3) If the responsible Agency official denies any such request, the applicant or recipient may submit a request for a hearing in writing, specifying why it believes such official to have been in error. It shall thereupon be given an expeditious hearing, with a decision on the record, in accordance with rules of procedure issued by the responsible Agency official. The applicant or recipient will be restored to such eligibility if it proves at such a hearing that it satisfied the requirements of paragraph (f)(1) of this section. While proceedings under this paragraph are pending, the sanctions imposed by the order issued under paragraph (e) of this section shall remain in effect.
§ 209.11 Judicial review.
Action taken pursuant to section 602 of the Act is subject to judicial review as provided in section 603 of the Act.
§ 209.12 Effect on other regulations; supervision and coordination.
(a) All regulations, orders or like directions heretofore issued by any officer of the Agency for International Development which impose requirements designed to prohibit any discrimination against individuals on the ground of race, color, or national origin under any program to which this part applies, and which authorize the suspension or termination of or refusal to grant or to continue Federal financial assistance to any applicant for or recipient of such assistance for failure to comply with such requirements, are hereby superseded to the extent that such discrimination is prohibited by this part, except that nothing in this part shall be deemed to relieve any person of any obligation assumed or imposed under any such superseded regulation, order, instruction, or like direction prior to the effective date of this part. Nothing in this part, however, shall be deemed to supersede any of the following (including future amendment thereof): (1) Executive Order 11246, and regulations issued thereunder, or (2) any other regulation or instruction insofar as it prohibits discrimination on the grounds of race, color, or national origin in any program or situation to which this part is inapplicable, or prohibits discrimination on any other ground.
(b) Supervision and coordination. The Administrator may from time to time assign to officials of other departments or agencies of the government (with the consent of such department or agency) responsibilities in connection with the effectuation of the purposes of title VI of the Act and this part (other than responsibility for final decision as provided in § 209.10), including the achievement of effective coordination and maximum uniformity within the Agency for International Development and within the Executive branch of the Government in the application of title VI and this part to similar programs and in similar situations. Any action taken, determination made, or requirement imposed by an official of another Department or Agency acting pursuant to an assignment of responsibility under this subsection shall have the same effect as though such action had been taken by the responsible official of this Agency.
Responsibility for administration and enforcement of this part, with respect to Federal financial assistance administered by another Federal department or agency pursuant to delegation, transfer interagency service agreement, or other arrangement is vested in the head of such department or agency, or his delegate, and subject to such delegations or redelegations as he may make or authorize.
Appendix A to Part 209 – Federal Financial Assistance to Which This Regulation Applies
1. Grants to organizations and institutions to carry on programs of technical cooperation and development in the United States to promote the economic development of less developed friendly countries. (Section 211, Foreign Assistance Act, 22 U.S.C. 2171.)
2. Grants to organizations and institutions to carry on programs of technical cooperation and development in the United States to promote the economic development of the less developed friendly countries of Latin America. (Section 251, Foreign Assistance Act, 22 U.S.C. 2211.)
3. Grants to organizations and institutions to carry out programs in the United States of research into, and evaluation of, economic development in less developed foreign countries. (Section 241, Foreign Assistance Act, 22 U.S.C. 2193.)
PART 211 – TRANSFER OF FOOD COMMODITIES FOR FOOD USE IN DISASTER RELIEF, ECONOMIC DEVELOPMENT AND OTHER ASSISTANCE
§ 211.1 General purpose and scope; legislation.
(a) Legislation. The Agricultural Trade Development and Assistance Act of 1954, as amended (Pub. L. 480), was further revised by the Agricultural Development and Trade Act of 1990, Public Law 101-624, 104 Stat. 3632-65 (1990). The legislation implemented by the regulation in this part (as of the date of issuance of this part) includes sections of Public Law 480, as follows: Sections 1, 2, 3, 201, 202, 203, 207, 401, 402, 403, 404, 406, 407, 408, 409, 413 and 414. Pursuant to title II of Public Law 480, A.I.D. may transfer agricultural commodities to address famine or other urgent or extraordinary relief requirements; combat malnutrition, especially in children and mothers; carry out activities that attempt to alleviate the causes of hunger, mortality and morbidity; promote economic and community development; promote sound environmental practices; and carry out feeding programs. Agricultural commodities may be provided to meet emergency food needs through foreign governments and private or public organizations, including intergovernmental organizations. Section 202(a) of Public Law 480 authorizes A.I.D., notwithstanding any other provision of law, to provide agricultural commodities for emergency food needs in such manner and on such terms and conditions as A.I.D. determines appropriate to respond to the emergency. Agricultural commodities also may be provided for non-emergency assistance through private voluntary organizations or cooperatives which are, to the extent practicable, registered with A.I.D., and through intergovernmental organizations.
(b) Terms and conditions. This part 211, also known as A.I.D. Regulation 11, provides the standard terms and conditions applicable to title II programs, except those conducted by agencies of the United Nations and the World Food Program. The Operational Plan submitted by a cooperating sponsor may propose, and justify, the waiver of any section of this Regulation that is not required by statute. If A.I.D. approves a waiver, the specific section or subsection waived will be identified in the Transfer Authorization signed by the cooperating sponsor and A.I.D. or in an attachment, prepared by A.I.D., that is appended to the Operational Plan.
§ 211.2 Definitions.
(a) A.I.D. means the Agency for International Development or any successor agency, including, when applicable, each USAID. USAID means an office of A.I.D. located in a foreign country. AID/W means the office of A.I.D. located in Washington, DC.
(b) Annual Estimate of Requirements or AER (Form A.I.D. 1550-3, Exhibit E, A.I.D. Handbook 9) is a statistical update of the Operational Plan which is signed by the cooperating sponsor requesting commodities under title II estimating the quantities required. When signed by AID/W, the AER together with the Food for Peace Program Agreement between A.I.D. and the cooperating sponsor, the approved Operational Plan, and this Regulation 11 form a donation agreement between A.I.D. and the cooperating sponsor with respect to the commodities included in the AER.
(c) CCC means the Commodity Credit Corporation, a corporate agency and instrumentality of the United States within the U.S. Department of Agriculture.
(d)(1) Cooperating sponsor means an entity, within or without the United States, governmental or not, such as the foreign government, the American Red Cross, the intergovernmental organization, or the private voluntary organization or cooperative, which enters into an agreement with the U.S. Government for the use of agricultural commodities or funds.
(2) Governmental cooperating sponsor means a foreign government which has signed a Transfer Authorization under which agricultural commodities are donated for emergency purposes only. Governmental cooperating sponsors are treated here as a group separate from other cooperating sponsors since they are eligible only for emergency programs and their circumstances are different in such matters as rules governing shipping and in certain other aspects of agreements.
(3) Nongovernmental cooperating sponsor means a cooperating sponsor which is a private voluntary organization, a cooperative, the American Red Cross, or other private or public agency. An intergovernmental organization also is treated as a nongovernmental cooperating sponsor in this Regulation 11 unless the text or context indicates otherwise.
(e) Cooperative means a private sector organization whose members own and control the organization and share in its services and its profits and that provides business services and outreach in cooperative development for its membership.
(f) Diplomatic Posts means the offices of the Department of State located in foreign countries and may include Embassies, Legations, and Consular offices. Since A.I.D. is responsible for title II programs, references in this Regulation to Diplomatic Posts apply only with respect to those countries where there is no USAID.
(g) Disaster relief organizations means organizations which are authorized by AID/W, USAID or a Diplomatic Post to assist disaster victims.
(h) Disaster victims means persons who, because of flood, drought, fire, earthquake, other natural or man-made disasters, or extraordinary relief requirements, are in need of food, feed, or other assistance.
(i) Duty free means exempt from all customs duties, toll charges, taxes or governmental impositions levied on the act of importation.
(j)(1) Food for Peace Program Agreement establishes a nongovernmental organization as a cooperating sponsor for which A.I.D. agrees to authorize future transfers of commodities in accordance with title II of Public Law 480 and Regulation 11 and the cooperating sponsor agrees to accept transfer of commodities in accordance with approved programs under title II and A.I.D. Regulation 11 and related procedures.
(2) Host Country Food for Peace Program Agreement means an agreement between the cooperating sponsor and the foreign government of each cooperating country which authorizes the cooperating sponsor to conduct activities there in a manner consistent with the terms and conditions set forth within this Regulation 11.
(3) Recipient Agency Agreement means a written agreement between the cooperating sponsor and a recipient agency prior to the transfer to the recipient agency of commodities, monetized proceeds, or other program income for distribution or implementation of an approved program.
(k) Free alongside ship (f.a.s.) includes all costs of transportation and delivery of the goods to the dock. “Free on board” (f.o.b.) includes costs for delivering the goods and loading them aboard the carrier at a specific location.
(l) Institutions means nonpenal, public or nonprofit private establishments that operate for charitable or welfare purposes where needy persons reside and receive meals including, but not limited to, homes for the aged, mentally and physically handicapped, refugee camps, and leprosy asylums.
(m) Intergovernmental organizations means agencies sponsored and supported by two or more nations, one of which is the United States.
(n) Marine salvage means the compensation made to those by whose assistance a vessel or its cargo has been saved from impending peril or recovered from actual loss.
(o) Monetized proceeds means funds generated from the sale of title II commodities in approved monetization programs. Monetized proceeds should be deposited in a special interest-bearing account for control and monitoring.
(p) Nonprofit means that the residue of income over operating expenses accruing in any activity, project, or program is used solely for the operation of such activity, project, or program.
(q) Operational Plan is a plan submitted by the cooperating sponsor or potential cooperating sponsor describing the proposed use of commodity and/or monetized proceeds and/or program income. All references in this Regulation to the Operational Plan shall include the AER that relates to such Operational Plan.
(r) Private voluntary organization means a not-for-profit, nongovernmental organization (in the case of a United States organization, an organization that is exempt from Federal Income Taxes under section 501(c)(3) of the Internal Revenue Code of 1986) that receives funds from private sources, voluntary contributions of money, staff time, or in-kind support from the public, and that is engaged or is planning to engage in voluntary, charitable or development assistance activities (other than religious activities).
(s) Program income means gross income earned by the cooperating sponsor or recipient agencies from activities supported under the approved program during the program period, including, but not limited to, interest earned on deposits of monetized proceeds, revenue from income generating activities, funds accruing from the sale of containers and nominal voluntary contributions by recipients made on the basis of ability to pay.
(t) Recipient agencies means schools, institutions, welfare agencies, disaster relief organizations, and public or private agencies whose food distribution functions or project activities are sponsored by the cooperating sponsor and which receive for distribution to eligible recipients commodities or monetized proceeds or program income for approved project activities. A cooperating sponsor may be a recipient agency.
(u) Recipients means persons who receive food assistance or the benefit of monetized proceeds or program income because of their economic or nutritional condition or who are otherwise eligible to receive commodities for their own use or other assistance in accordance with the terms and conditions of the approved Operational Plan or Transfer Authorization.
(v) Registered private voluntary organization or cooperative means a nonprofit private voluntary organization or cooperative registered with, and approved by, A.I.D. The term includes foreign as well as U.S. registered nonprofit voluntary organizations and cooperatives. For discussion of registration, see 22 CFR part 203, A.I.D. Regulation 3, Registration of Agencies for Voluntary Foreign Aid. In reviewing and approving proposals, A.I.D., at its discretion, may give preference to registered private voluntary organizations and cooperatives over those that are not and to U.S. private voluntary organizations and cooperatives over those that are foreign.
(w) Transfer Authorization or TA means the document signed by the cooperating sponsor and A.I.D. which describes commodities and the program in which they will be used. The TA incorporates A.I.D. Regulation 11 and authorizes CCC to ship the commodities.
(x) USDA means the U.S. Department of Agriculture.
(y) Welfare agencies means public or private voluntary organizations that provide care, including food assistance, to needy persons who are not residents of institutions.
§ 211.3 Cooperating sponsor agreements; program procedure.
(a) Food for Peace Program Agreement. A nongovernmental organization is eligible to be a cooperating sponsor for regular programs under paragraph (d)(2)(i) of this section only after it has entered into a Food For Peace Program Agreement with A.I.D. that incorporates the terms and conditions set forth in Regulation 11.
(b) Host Country Food for Peace Program Agreement. Nongovernmental and intergovernmental cooperating sponsors shall, in addition to the Food for Peace Program Agreement, enter into a separate written Host Country Food for Peace Agreement with the foreign government of each country for which title II commodities are transferred to the cooperating sponsor. This agreement shall establish the terms and conditions needed by a nongovernmental cooperating sponsor to conduct a title II program in the country in accordance with the applicable requirements of this part. The cooperating sponsor shall provide USAID or the Diplomatic Post a copy of each executed Host Country Food for Peace Agreement.
Where such written agreement is not appropriate or feasible, USAID or the Diplomatic Post shall assure AID/W, in writing, that the program can be effectively implemented in compliance with this Regulation without such an agreement.
(c) Recipient Agency Agreement. Prior to the transfer of commodities, monetized proceeds, or program income to a recipient agency for distribution or implementation of an approved program, the cooperating sponsor shall execute with such agency a written agreement which shall:
(1) Describe the approved uses of commodities, monetized proceeds and program income in a manner consistent with the approved Operational Plan or TA;
(2) Require the recipient agency to pay the cooperating sponsor the value of any commodities, monetized proceeds or program income that are used for purposes not permitted under the Recipient Agency Agreement or that are lost, damaged or misused as a result of the recipient agency’s failure to exercise reasonable care with respect to such commodities, monetized proceeds or program income; and
(3) Incorporate by reference or otherwise the terms and conditions set forth in this Regulation 11.
(d) Program procedure – (1) Requests for programs. A program may be requested by any cooperating sponsor, including private voluntary organizations, cooperatives, foreign governments (for emergencies only), and international organizations.
(2) Approval of programs. There are two basic patterns of decision typically employed in approving a request for title II assistance:
(i) Regular programs. The cooperating sponsor submits to A.I.D. an Operational Plan or multi-year Operational Plan (see appendix I), describing the program proposed. Also, an AER will be submitted to A.I.D. along with the Operational Plan, estimating the quantities of commodities required for each program proposed. AID/W’s approval of and signature on the AER completes this decision process.
(ii) Individual programs. The other basic pattern of decision making results in a Transfer Authorization. The TA is used for all emergency government-to-government programs, and for nongovernmental cooperating sponsor programs which do not fit within the Program Agreement/AER framework. The TA will include by reference Regulation 11.
(3) Subject to availability. A.I.D.’s agreement to transfer commodities is subject to the availability of appropriations and agricultural commodities during each United States Government fiscal year to which it applies.
(4) Timing of decision. Under Public Law 480, section 207(a), within 45 days of its submission to AID/W, a decision must be made on a proposal submitted by a private voluntary organization or cooperative, concurred in by USAID or the Diplomatic Post. The decision shall detail the reasons for approval or denial, and if denied, conditions to be met for approval. In addition, a USAID or Diplomatic Post must decide whether or not to concur in the proposal within 45 days of receiving it or provide a written explanation to the private voluntary organization or cooperative and AID/W of the reasons USAID or the Diplomatic Post needs more time to consider the proposal.
§ 211.4 Availability and shipment of commodities.
(a) Shipment, distribution and use of commodities. Commodities shall be available for shipment, distribution and use in accordance with the provisions of the approved Operational Plan and AER, or TA and this Regulation 11.
(b) Transfer of title and delivery. (1) Unless the approved Operational Plan or TA provides otherwise, title to the commodity shall pass –
(i) For nongovernmental cooperating sponsors, at the point in the United States at which the ocean carrier or its agents take possession of the cargo (generally f.a.s. or f.o.b. vessel U.S. port); or
(ii) For governmental cooperating sponsors, at the destination port of entry, upon completion of discharge by the ocean carrier (non-landlocked countries), or at the destination point of entry, upon completion of delivery by the inland carrier (landlocked countries).
(2) Nongovernmental cooperating sponsors shall make the necessary arrangements to accept commodities at the points of availability designated by CCC.
(c) Processing, handling, transportation and other costs. (1) Except as othervise provided in the Operational Plan or TA, the United States will pay in accordance with this paragraph (c) processing, handling, transportation, and other incidental costs incurred in making commodities available to cooperating sponsors at U.S. ports or U.S. inland destinations, up to the point at which the ocean carrier takes possession of the cargo.
(2) The United States will finance the transfer of commodities at the lowest combination inland and ocean transportation costs as determined by the United States and in sizes and types of packages announced as applicable. If a nongovernmental cooperating sponsor requests changes to these standards which are made by the United States as an accommodation to the cooperating sponsor and these changes result in costs over those the United States otherwise would have incurred, the cooperating sponsor shall reimburse the United States for these increased costs promptly upon request.
(3) All costs and expenses incurred subsequent to the transfer of title to cooperating sponsors shall be borne by them except as otherwise provided herein. Upon the determination that it is in the interests of the program to do so, the United States may pay or reimburse the following additional costs:
(i) Ocean transportation costs from U.S. ports to the designated ports of entry abroad; or
(ii) Ocean transportation costs from U.S. ports to designated points of entry abroad in the case –
(A) Of landlocked countries,
(B) Where ports cannot be used effectively because of natural or other disturbances,
(C) Where carriers to a specific country are unavailable, or
(D) Where a substantial savings in cost or time can be effected by the utilization of points of entry other than ports; or
(iii) In the case of commodities for urgent and extraordinary relief requirements, including prepositioned commodities, transportation costs from designated points of entry or ports of entry abroad to storage and distribution centers and associated storage and distribution costs.
(d) Payment or reimbursement of ocean freight costs. When A.I.D. contracts for ocean carriage, carriers shall be paid by A.I.D., as provided in their contracts of affreightment, upon presentation of Standard Form 1034 and three copies of 1034A (Public Voucher for purchases and services other than personal), together with three copies of the related on-board ocean bill of lading, one copy of which must contain the following certification signed by an authorized representative of the steamship company:
I certify that this document is a true and correct copy of the original on-board ocean bill of lading under which the goods herein described were located on the above-named vessel and that the original and all other copies thereof have been clearly marked as not to be certified for billing.
(e) Shipping instructions – (1) Shipments booked by A.I.D. Requests for shipment of commodities shall originate with the cooperating sponsor and shall be submitted to USAID or the Diplomatic Post for clearance and transmittal to AID/W. AID/W shall, through cables or letters to USAID or the Diplomatic Post, provide cooperating sponsors (and, where applicable, private voluntary organization or cooperative headquarters) with names of vessels, expected times of arrival (ETAs), and other pertinent information on shipments booked by A.I.D. As soon as possible but not later than 7 days from the time of exportation of commodities, A.I.D.’s freight forwarding contractor shall send applicable ocean bills of lading by airmail, or by the fastest means available, to USDA (Chief, Processed Commodities Division, Kansas City ASCS Commodity Office (KCCO), P.O. Box 419205, Kansas City, Missouri 64141-6205), to USAID or the Diplomatic Post (and where applicable to the USAID Controller and nongovernmental cooperating sponsor headquarters and field representative), to AID/W, FA/OP/TRANS (see § 211.4(d)), and to the consignee in sufficient time to advise of the arrival of the shipment.
(2) Shipments booked by nongovernmental cooperating sponsor. Requests for shipment of commodities shall originate with the cooperating sponsor and shall be cleared by USAID or the Diplomatic Post before transmittal to the cooperating sponsor’s headquarters for concurrence and issuance. USAID or the Diplomatic Post shall promptly clear such requests for shipment of commodities or, if there is reason for delay or disapproval, advise the cooperating sponsor and AID/W within seven (7) days of receipt of requests for shipment. After the cooperating sponsor headquarters concurs in the request and issues the order, the original will be sent promptly to AID/W which will forward it to CCC for procurement action with a copy to USAID or the Diplomatic Post. Headquarters of cooperating sponsors which book their own shipments shall provide their representatives and USAID or the Diplomatic Post with the names of vessels, ETAs and other pertinent information on shipments booked. At the time of exportation of commodities, the booking agent representing the cooperating sponsor shall send applicable ocean bills of lading by airmail or by the fastest means available to USDA (Chief, Processed Commodities Division, Kansas City ASCS Commodity Office (KCCO), P.O. Box 419205, Kansas City, Missouri 64141-6205), to USAID or the Diplomatic Post (and where applicable to the USAID Controller and the nongovernmental cooperating sponsor representative), to AID/W, FA/OP/TRANS (see § 211.4(d)), and to the consignee in the country of destination in sufficient time to advise of the arrival of the shipment. Nongovernmental cooperating sponsors also will forward cable advice of actual exportation to their program directors in countries within the Caribbean area in view of the short transit time from U.S. port to destination.
(3) Cooperating sponsors awarding USAID-financed ocean transportation bookings of food aid under the Public Law 480, title II program shall follow consistent, transparent, fair and effective procedures. In order to promote these objectives, USAID may formulate, and from time-to-time amend, uniform standard booking guidelines relating to such bookings. Guidelines will be finalized only after consultation with affected cooperating sponsors, freight forwarders and carriers as required by the Agricultural Development and Trade Act of 1990 or other applicable legislation. Copies of the guidelines and any proposed amendments may be obtained from the Transportation Division, Office of Procurement, Agency for International Development, Washington, DC 20523.
(f) Tolerances. Delivery by the United States to the cooperating sponsor at point of transfer of title within a tolerance of 5 percent (2 percent in the case of quantities over 10,000 metric tons) plus or minus, of the quantity ordered for shipment shall be regarded as completion of delivery. There shall be no tolerance with respect to the ocean carrier’s responsibility to deliver the entire cargo shipped and the United States assumes no obligation for failure by an ocean carrier to complete delivery to port of discharge.
(g) Conflict of interest. (1) Pursuant to section 407(c)(4) of Public Law 480, a person may not be an agent, broker, consultant, or other representative of the U.S. Government, an importer, or an importing country in connection with agricultural commodities provided under Public Law 480 during a fiscal year in which such person acts as an agent, broker, consultant or other representative of a person engaged in providing ocean transportation or ocean transportation-related services for such commodities.
(i) For purposes of section 407(c)(4), the term “transportation-related services” means lightening, stevedoring, bagging or inland transportation to the destination point.
(ii) The prohibition does not preclude payment by ocean carriers of compensation or brokerage fees on a shipment-by-shipment basis as provided in governing tariffs or charter parties to persons performing freight forwarding or charter broking services under contract to the U.S. Government.
(2) Pursuant to section 407(d)(3) of Public Law 480, freight agents employed by A.I.D. under title I, II or III of Public Law 480 shall not represent any other foreign government during the period of their contract with the United States Government. This restriction applies both to charter brokers and freight forwarders whether they are prime contractors or subcontractors of A.I.D.
(3) This paragraph (g) does not apply to shipments booked by nongovernmental cooperating sponsors or their agents.
§ 211.5 Obligations of cooperating sponsor.
(a) Operational Plans. Each cooperating sponsor shall submit a description of the programs it is sponsoring or proposes to sponsor to USAID or the Diplomatic Post for its approval. AID/W will prescribe the format and timing for submittals and provide final approval of the Operational Plan. This Operational Plan will include program purposes and goals; criteria for measuring program effectiveness; a description of the activities for which commodities, monetized proceeds, or program income will be provided or used; and other specific provisions in addition to those set forth in this Regulation. Further, this description will include information from which it may be determined that the distribution of commodities in the recipient country will not result in a substantial disincentive to domestic production and that adequate storage facilities will be available in the recipient country at the time of arrival of the commodity to prevent spoilage or waste of the commodity. For preparation of the Operational Plan, see appendix I to this regulation. If a cooperating sponsor submits a multi-year Operational Plan that is approved by A.I.D., the Operational Plan provided with an AER each subsequent year should cover only those components or features which require updating or the cooperating sponsor proposes to change. A.I.D. will issue guidance each year regarding Operational Plans that must be submitted by cooperating sponsors. Within the limits of the total amount of commodities, monetized proceeds and program income approved by A.I.D. in the Operational Plan, the cooperating sponsor may increase or decrease by not to exceed 10 percent the amount of commodities, monetized proceeds or program income allocated to approved program categories or components of the Operational Plan. Such adjustments must be identified specifically in the annual report submitted by a cooperating sponsor under § 211.10(b) of the Regulation. A cooperating sponsor may not otherwise deviate from the Operational Plan without the prior written approval of A.I.D.
(b) Program supervision. Cooperating sponsors shall provide adequate supervisory personnel for the efficient operation of the program, including personnel to:
(1) Plan, organize, implement, control, and evaluate programs involving distribution of commodities or use of monetized proceeds and program income,
(2) Make warehouse inspections, physical inventories, and end-use checks of food or funds, and
(3) Review of books and records maintained by recipient agencies that receive monetized proceeds and/or program income.
(c) Audits – (1) By nongovernmental cooperating sponsors. A nongovernmental cooperating sponsor shall arrange for periodic audits to be conducted in accordance with OMB Circular A-133, including the OMB Compliance Supplement and the Statement of Position Regarding Circular A-133 developed by the American Institute of Certified Public Accountants. Nongovernmental recipient agencies shall be treated as subrecipients under OMB Circular A-133, and governmental recipient agencies shall furnish the cooperating sponsor audits in accordance with the standard in paragraph (c)(2) of this section. The cooperating sponsor may satisfy these audit responsibilities with respect to recipient agencies by relying on independent audits performed of recipient agencies or on appropriate procedures performed by the cooperating sponsor’s internal audit or program staff, by expanding the scope of the independent financial and compliance audit of the cooperating sponsor to encompass testing of recipient agency charges, or by a combination of these procedures. The Generally Accepted Commodity Accounting Principles issued by Food Aid Management, an association of cooperating sponsors, may be used for commodity accounting.
(2) By governmental cooperating sponsors. A governmental cooperating sponsor shall ensure that an audit satisfactory to A.I.D. is conducted annually with respect to donated commodities and monetized proceeds, if commodity sales are authorized under the agreement with A.I.D., including commodities and monetized proceeds transferred to or used by recipient agencies. The audit shall be a financial audit performed by the country’s principal government audit agency or another audit agency or firm acceptable to A.I.D. This audit should be conducted in accordance with generally accepted government auditing standards issued by the United States General Accounting Office, or auditing standards that have been prescribed by the laws of the country or adopted by public accountants or an association of public accountants in the country, or Auditing Standards promulgated by the International Organization of Supreme Audit Institutions or International Auditing Practices Committee of the International Federation of Accountants. Both the auditor and the auditing standards to be used by the cooperating sponsor must be acceptable to A.I.D. The cooperating sponsor may satisfy its audit responsibility with respect to recipient agencies by relying on independent audits of the recipient agency or on appropriate procedures performed by internal audit or program staff of the cooperating sponsor, by expanding the scope of the independent financial audit of the cooperating sponsor to encompass testing of recipient agency charges or actions, or by a combination of these procedures. Recipient agencies that receive less than $25,000 of donated commodities and/or monetized proceeds are excluded from the cooperating sponsor’s audit responsibility.
(d) Commodity requirements; AER. Each cooperating sponsor shall submit to USAID or the Diplomatic Post, within such times and on the AER form prescribed by AID/W, estimates of requirements showing the quantities of commodities required for each program proposed.
(e) No military distribution. Except as A.I.D. may otherwise agree in writing, agricultural commodities donated by A.I.D. shall not be distributed, handled or allocated by any military forces.
(f) Determination of eligibility of recipients. Cooperating sponsors shall be responsible for determining that the recipients and recipient agencies to whom they distribute commodities are eligible in accordance with the Operational Plan or TA and this Regulation. Cooperating sponsors shall impose upon recipient agencies responsibility for determining that the recipients to whom they distribute commodities or provide assistance with monetized proceeds or program income are eligible. Commodities shall be distributed free of charge except as provided in paragraphs (j) and (k) of this section or as otherwise authorized by AID/W, but in no case will recipients be excluded from receiving commodities because of inability to make a contribution to the cooperating sponsor for any purpose.
(g) No discrimination. Cooperating sponsors shall distribute commodities to and conduct operations (with food, monetized proceeds, or program income) only with eligible recipient agencies and eligible recipients without regard to political affiliation, geographic location, ethnic, tribal or religious identity or other factors extraneous to need and the eligibility criteria set forth in the approved Operational Plan or TA, and shall impose similar conditions upon recipient agencies.
(h) Public recognition. To the maximum extent practicable, and with the cooperation of the host government, adequate public recognition shall be given in the press, by radio, and other media that the commodities or assistance financed by monetized proceeds or program income have been provided through the friendship of the American people as food for peace. At distribution and feeding centers or other project sites the cooperating sponsor shall, to the extent feasible, display banners, posters, or similar media which shall contain information similar to that prescribed for containers in paragraph (i) of this section. Recipients’ individual identification cards shall, insofar as practicable, be imprinted to contain such information.
(i) Containers – (1) Markings. Unless otherwise specified in the Operational Plan or TA, when commodities are packaged for shipment from the United States, bags and other containers shall be marked with the CCC contract number or other identification, the A.I.D. emblem and the following information stated in English:
(i) Name of commodity;
(ii) Provided through the friendship of the American people as food for peace;
(iii) Not to be sold or exchanged (where applicable).
(2) Disposal of containers. Cooperating sponsors may dispose of containers, other than containers provided by carriers, in which commodities are received in countries having approved title II programs, by sale or exchange, or may distribute the containers free of charge to eligible food or fiber recipients for their personal use. If the containers are to be used commercially, the cooperating sponsor must arrange for the removal, obliteration, or cross out of the U.S. Government markings from the containers prior to such use.
(j) Monetization programs. Provisions of this Regulation that prohibit or restrict the sale of commodities or require marking or labeling of containers do not apply to the extent the sale of commodities is approved by A.I.D. Cooperating sponsors are not required to monitor, manage, report on or account for the distribution or use of commodities after title to the commodities has passed to buyers or other third parties pursuant to a sale under a monetization program and all sales proceeds have been fully deposited in the special interest-bearing account established by the cooperating sponsor for monetized proceeds. However, the receipt and use of sales proceeds must be monitored, managed, reported and accounted for as provided in this Regulation, with special reference to paragraphs (k) and (l) of this section, and § 211.10. It is not mandatory that commodities approved for monetization be imported and sold free from all duties and taxes, but nongovernmental cooperating sponsors may negotiate agreements with the host government permitting the tax-free import and sale of such commodities. Even where the cooperating sponsor negotiates tax-exempt status, the prices at which the cooperating sponsor sells the commodities to the purchaser should reflect prices that would be obtained in a commercial transaction, i.e., the prices would include the cost of duties and taxes, except as A.I.D. may otherwise agree in writing. Thus, the amounts normally paid for duties and taxes would accrue for the benefit of the cooperating sponsor’s approved program. Cooperating sponsors should refer to the “Monetization Field Manual” for more comprehensive guidance on setting the sales price. A copy of the Monetization Manual may be obtained from AID/W-FHA/PPE, Washington, DC 20523.
(k) Use of funds. (1) Nongovernmental cooperating sponsors and recipient agencies may use monetized proceeds and program income to:
(i) Transport, store, distribute and otherwise enhance the effectiveness of the use of donated commodities and products thereof, including construction or improvement of storage facilities or warehouses, handling, insect and rodent control, payment of personnel employed or used by the cooperating sponsor or recipient agencies in support of approved programs;
(ii) Implement income generating, community development, health, nutrition, cooperative development, agricultural and other developmental activities agreed upon by A.I.D. and the cooperating sponsor;
(iii) Make investments, with the approval of A.I.D., and any interest earned on such investments may be used for purposes described in paragraphs (k)(l) (i) and (ii) of this section;
(iv) Improve their financial and other management systems; and
(v) Pay indirect costs of the cooperating sponsor that are allocable to the monetization program at the indirect cost rate approved by A.I.D. for the cooperating sponsor, the direct and indirect costs of an office maintained by the cooperating sponsor in the country where the monetization program is conducted that are allocable to the title II program there, and the costs of a regional office maintained by a cooperating sponsor that are allocable to the cooperating sponsor’s effort to enhance the effectiveness of the use of commodities provided by A.I.D. under title II.
(2) Monetized proceeds and program income may be used by the cooperating sponsor and recipient agencies only for the purposes described in the Operational Plan or TA, or otherwise approved by A.I.D., in writing, and only for such costs as would be allowable under OMB Circular A-122, as amended, “Cost Principles for Nonprofit Organizations”. A recipient agency may use not to exceed $500 per year of voluntary contributions for institutional, community or social development or other humanitarian purposes without regard to the Operational Plan or TA or OMB Circular A-122.
(3) Governmental cooperating sponsors shall use monetized proceeds and program income only for emergency purposes as described in the TA with respect to such programs.
(4) Monetized proceeds and program income may not be used to pay for the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions.
(5) Except as A.I.D. may otherwise agree in writing, monetized proceeds may not be used to finance the production for export of agricultural commodities, or products thereof, that would compete in the world market with similar agricultural commodities, or products thereof, produced in the United States, if such competition would cause substantial injury to the United States producers, as determined by A.I.D.
(6)(i) The cooperating sponsor shall use commercially reasonable practices in construction activities and in purchasing goods and services with monetized proceeds or program income; maintain a code of standards of conduct regarding conflicts of interest; carry out procurement transactions in a manner to provide open and free competition to the maximum extent practicable; and maintain and make available to A.I.D. in accordance with § 211.10 records and documents regarding the procurement of goods and services with monetized proceeds and program income. Cooperating sponsors shall follow their own requirements relating to bid guarantees, performance bonds and payment bonds when program income or monetized proceeds are used to finance construction or the improvement of facilities, but shall consult with USAID or the Diplomatic Post regarding such requirements when the estimated cost of such construction or improvements exceeds $100,000. Title to real and personal property shall be vested in the cooperating sponsor, except as provided in the Operational Plan or TA or as A.I.D. may otherwise agree in writing, subject to the requirements of § 211.11 upon termination of the program.
(ii) Monetized proceeds and program income may not be used to acquire, construct, alter or upgrade land, buildings or other real property improvements that are used in whole or in part for sectarian purposes or which are owned or managed by a church or other organization engaged exclusively in religious activity. Notwithstanding the preceding sentence, monetized proceeds or program income may be used to finance repair or rehabilitation of an existing structure owned or managed by a church or organization engaged exclusively in religious activity to the extent necessary to avoid spoilage or loss of donated commodities, provided that the structure is not used in whole or in part for any sectarian purpose while donated commodities are stored in it. The use of monetized proceeds or program income to finance construction of such a structure may be approved in the Operational Plan or TA or by USAID or the Diplomatic Post if the structure is needed and will be used for the storage of donated commodities for a sufficient period of time to warrant the expenditure of monetized proceeds or program income and the structure will not be used for any sectarian purpose during this period.
(l) Report on funds. The cooperating sponsor (headquarters, if there is more than one office) shall annually provide AID/W a report on the receipt and disbursement of all monetized proceeds and program income by cooperating sponsors and recipient agencies. This report should include the source of the funds, by country, and how the funds were used. This annual report should be submitted to AID/W by December 31 of each calendar year for the fiscal year ending September 30 of that calendar year.
(m) No displacement of sales. Except in the case of emergency or disaster situations, the donation of commodities furnished for these programs shall not result in increased availability for export by the recipient country of the same or like commodities and shall not interfere with or displace sales in the recipient country which might otherwise take place. A country may be exempt from this proviso if circumstances warrant. USAIDs should seek AID/W guidance on this matter.
(n) Commodities borrowed or exchanged for programs. After the date of the program approval by AID/W, but before arrival at the distribution point of the commodities authorized, the cooperating sponsor may, with prior approval of USAID or the Diplomatic Post, borrow the same or similar commodities from available sources to meet program requirements provided that:
(1) Borrowed commodities which are used in accordance with the terms of the Operational Plan or TA will be replaced with commodities transferred by A.I.D. The amount of commodities transferred to replace borrowed commodities shall be established by mutual agreement between the cooperating sponsor and USAID or the Diplomatic Post and will be determined on the basis of equivalent value at the time and place of transfer or on some other justifiable basis proposed by the cooperating sponsor and acceptable to USAID or the Diplomatic Post;
(2) Packaged commodities which are borrowed shall be appropriately identified insofar as practicable in the language of the country of distribution as having been provided through the friendship of the American people as food for peace; and
(3) Suitable publicity shall be given to the exchange of commodities as provided in paragraph (h) of this section and containers for borrowed commodities shall be marked to the extent practicable in accordance with § 211.6(c).
(o) Commodity transfer between programs. After the date of program approval by AID/W, but before distribution of the commodities, USAID or the Diplomatic Post (or the cooperating sponsor with prior approval of USAID or the Diplomatic Post) may transfer commodities between approved title II programs to meet emergency disaster requirements or to improve efficiency of operation, such as to meet temporary shortages due to delays in ocean transportation or provide for rapid distribution of stocks in danger of deterioration. Transfers also may be made to disaster organizations for use in meeting exceptional circumstances. Commodity transfers shall be made at no cost to the U.S. Government and with the concurrence of the cooperating sponsor and disaster relief organization concerned. A USAID or Diplomatic Post with funds available, however, may pay the costs of transfers to meet extraordinary relief requirements, and AID/W shall be advised promptly of the details of the transfer. Commodities transferred between programs shall not be replaced by the U.S. Government unless AID/W authorizes such replacement.
(p) Disposal of excessive stock of commodities. If commodities are on hand which cannot be utilized in accordance with the approved Operational Plan or the TA, the cooperating sponsor shall promptly advise USAID or the Diplomatic Post of the quantities, location and condition of such commodities, and where possible, shall propose an alternate use of the excess stocks; USAID or the Diplomatic Post shall determine the most appropriate use of the excess stocks, and with prior AID/W concurrence, shall issue instructions for disposition. Transportation costs and other charges attributable to transferring commodities from one program to another within the country shall be the responsibility of the cooperating sponsor, except that in case of disaster or emergency, AID/W may authorize the use of disaster or emergency funds to pay for the costs of such transfers. (For discussion of unfit commodity disposal, see § 211.8.)
(q) Trilateral exchange programs. The restrictions in this Regulation regarding the distribution, use or labeling of commodities shall not apply to commodities furnished by CCC in exchange for other commodities obtained from third parties (“exchanged commodities”) to be distributed in a recipient country under a trilateral exchange program. Except as A.I.D. and the cooperating sponsor may otherwise agree in writing, title to the exchanged commodities will pass to the cooperating sponsor upon delivery to and acceptance by the cooperating sponsor at the point of delivery specified in the Operational Plan or TA. After title passes to the cooperating sponsor the exchanged commodities shall be deemed “commodities” covered by this Regulation with respect to all post-delivery obligations of the cooperating sponsor contained in this Regulation, including obligations regarding labeling to the extent practicable, distribution, monitoring, reporting, accounting and use of commodities or monetized proceeds resulting from their sale. In the event of difficulty in satisfying the labeling requirement, the cooperating sponsor will consult with USAID or the Diplomatic Post for guidance.
(r) Landing. Governmental cooperating sponsors shall permit donated commodities to be discharged notwithstanding any dispute or question concerning quality, quantity, or other matters relating to the commodity itself. Any such dispute or question shall be resolved in accordance with procedures stated in this Regulation or in the relevant shipping or other contracts, as applicable.
§ 211.6 Processing, repackaging, and labeling commodities.
(a) Commercial processing and repackaging. Cooperating sponsors or their designees may arrange for processing commodities into different end products and for packaging or repackaging commodities prior to distribution. Commodities may be bartered, or monetized proceeds or program income may be used, to offset such costs if provided for in the Operational Plan or TA or approved by USAID or the Diplomatic Post. When commercial facilities are used for processing, packaging or repackaging, cooperating sponsors or their designees shall enter into written agreements for such services and copies of the agreements must be provided to USAID or the Diplomatic Post. Except as AID/W otherwise agrees, the executed agreements shall provide as a minimum that the party providing such services shall:
(1) Fully account to the cooperating sponsor for all commodities delivered to the processor’s possession and shall maintain adequate records and submit periodic reports pertaining to the performance of the agreement;
(2) Be liable for the value of all commodities not accounted for as provided in § 211.9(e);
(3) Return or dispose of the containers in which the commodity is received from the cooperating sponsor according to instructions from the cooperating sponsor; and
(4) Plainly label carton, sacks, or other containers containing the end product in accordance with paragraph (c) of this section.
(b) Use of cooperating sponsor facilities. When cooperating sponsors utilize their own facilities to process, package, or repackage commodities into different end products, and when such products are distributed for consumption off the premises of the cooperating sponsor, the cooperating sponsor shall plainly label the containers as provided in paragraph (c) of this section, and banners, posters, or similar media which shall contain information similar to that prescribed in paragraph (c) of this section, shall be displayed at the distribution center. Recipients’ individual identification cards shall to the maximum extent practicable be imprinted to contain such information.
(c) Labeling. If, prior to distribution, the cooperating sponsor arranges for packaging or repackaging donated commodities, the cartons, sacks, or other containers in which the commodities are packed shall be plainly labeled with the A.I.D. emblem, and insofar as practicable, with the following information in the language of the country in which the commodities are to be distributed:
(1) Name of commodity;
(2) Provided through the friendship of the American people as food for peace; and
(3) Not to be sold or exchanged (where applicable).
(d) Where commodity containers are not used. When the usual practice in a country is not to enclose the end product in a container, wrapper, sack, etc., the cooperating sponsor shall, to the extent practicable, display banners, posters, or other media, and imprint on individual recipient identification cards information similar to that prescribed in paragraph (c) of this section.
§ 211.7 Arrangements for entry and handling in foreign country.
(a) Costs at discharge ports. Except as otherwise agreed upon by AID/W and provided in the applicable shipping contract or in paragraph (d) and (e) of this section, the cooperating sponsor shall be responsible for all costs, other than those assessed by the delivering carrier either in accordance with its applicable tariff for delivery to the discharge port or the applicable charter or booking contract. The cooperating sponsor shall be responsible for all costs related to
(1) Distributing the commodity to end users, as provided in the approved Operational Plan or TA;
(2) Demurrage, detention, and overtime;
(3) Obtaining independent discharge survey reports as provided in § 211.9 under which the cooperating sponsor will be reimbursed for the costs of obtaining independent survey reports as provided in § 211.9(c)(1)(iv); and
(4) Wharfage, taxes, dues, and port charges assessed and collected by local authorities from the consignee, lighterage (when not a custom of the port), and lightening costs when assessed as a charge separate from the freight rate.
(b) Duty, taxes, and consular invoices. Except for commodities which are to be monetized (sold) under an approved Operational Plan or TA, commodities shall be admitted duty free and exempt from all taxes. Consular or legalization invoices shall not be required unless specific provision is made in the Operational Plan or TA. If required, they shall be issued without cost to the cooperating sponsor or to the Government of the United States. The cooperating sponsor shall be responsible for ensuring prompt entry and transit in the foreign country(ies) and for obtaining all necessary import permits, licenses or other appropriate approvals for entry and transit, including phytosanitary, health and inspection certificates.
(c) Storage facilities and transportation in foreign countries. The cooperating sponsors shall provide assurance to USAID or the Diplomatic Post that all necessary arrangements for receiving the commodities have been made, and shall assume full responsibility for storage and maintenance of the commodities from time of delivery at port of entry abroad or, when authorized, at other designated points of entry abroad agreed upon between the cooperating sponsor and A.I.D. Before recommending approval of a program to AID/W, USAID or the Diplomatic Post shall obtain, from the cooperating sponsor, assurance that provision has been made for internal transportation, and for storage and handling which are adequate by local commercial standards. The cooperating sponsor shall be responsible for the maintenance of the commodities in such manner as to assure distribution of the commodities in good condition to recipient agencies or eligible recipients.
(d) Inland transportation in intermediate countries. In the case of landlocked countries, transportation in the intermediate country to a designated inland point of entry in the recipient country shall be arranged by the cooperating sponsor unless otherwise provided in the Operational Plan or TA. Nongovernmental cooperating sponsors shall handle claims arising from loss or damage in the intermediate country, in accordance with § 211.9(e). Governmental cooperating sponsors shall assign any rights that they may have to any claims that arise in the intermediate country to USAID or the Diplomatic Post which shall pursue and retain the proceeds of such claims.
(e) Authorization for reimbursement of costs. If, because of packaging damage, a cooperating sponsor determines that commodities must be repackaged to ensure that the commodities arrive at the distribution point in a wholesome condition, the cooperating sponsor may incur expenses for such repackaging up to $500 and such costs will be reimbursed by CCC. If costs will exceed $500, the authority to repackage and incur the costs must be approved by USAID or the Diplomatic Post in advance of repackaging unless such prior approval is specifically waived, in writing, by USAID or the Diplomatic Post. For losses in transit, the $500 limitation shall apply to all commodities which are shipped on the same voyage of the same vessel to the same port of destination, irrespective of the kinds of commodities shipped or the number of different bills of lading issued by the carrier. For other losses, the $500 limitation shall apply to each loss situation, e.g., if 700 bags are damaged in a warehouse due to an earthquake, the $500 limitation applies to the total cost of repackaging the 700 bags. Shipments may not be artificially divided in order to avoid the limitation of $500 or for obtaining prior approval to incur repackaging costs.
(f) Method of reimbursement. (1) Costs of repackaging required because of damage occurring prior to or during discharge from the ocean carrier should be included, as a separate item, in claims filed against the ocean carrier. (See § 211.9(c).) Full reimbursement of such costs up to $500 will be made by CCC upon receipt of invoices or other documents to support such costs. For amounts expended in excess of $500, reimbursement will be made upon receipt of supporting invoices or other documents establishing the costs of repackaging and showing the prior approval of USAID or the Diplomatic Post to incur the costs, unless approval is waived under § 211.7(e).
(2) Costs of repackaging required because of damage caused after discharge of the cargo from the ocean carrier will be reimbursed to the cooperating sponsor by CCC (USDA-ASCS Fiscal Division, 14th & Independence Avenue, Washington, DC 20250) upon receipt of supporting invoices or other documentation.
(a) Prior to delivery to cooperating sponsor at discharge port or point of entry. If the commodity is damaged prior to delivery to a governmental cooperating sponsor at discharge port or point of entry overseas, USAID or the Diplomatic Post shall immediately arrange for inspection by a public health official or other competent authority. A nongovernmental cooperating sponsor shall arrange for such an inspection under these circumstances. Commodity that is determined to be unfit for authorized use shall be disposed of in accordance with the priority set forth in paragraph (b). Expenses incidental to the handling and disposition of the damaged commodity shall be paid by USAID or the Diplomatic Post from the sales proceeds, from CCC Account No. 20FT401 or from the special title II, Public Law 480 Agricultural Commodity Account. The net proceeds of sales shall be deposited with the U.S. Disbursing Officer American Embassy, for the credit of CCC Account No. 20FT401.
(b) After delivery to cooperating sponsor. (1) If after arrival in a foreign country it appears that all or part of the commodities, may be unfit for the use authorized in the Operational Plan or TA, the cooperating sponsor shall immediately arrange for inspection of the commodity by a public health official or other competent authority approved by USAID or the Diplomatic Post. If no competent local authority is available, USAID or the Diplomatic Post may determine whether the commodities are unfit, and if so, may direct disposal in accordance with paragraphs (b) (1) through (4) of this section. The cooperating sponsor shall arrange for the recovery for authorized use of that part designated during the inspection as suitable for program use. If, after inspection, the commodity (or any part thereof) is determined to be unfit for authorized use the cooperating sponsor shall notify USAID or the Diplomatic Post of the circumstances pertaining to the loss or damage as prescribed in § 211.9(f).
(2) A cooperating sponsor shall dispose of commodities determined to be unfit for authorized use in the order of priority described in paragraphs (b)(2) (i) through (iv) of this section. The concurrence of USAID or the Diplomatic Post should be requested for disposition of commodities valued at $500 or more. If the USAID or Diplomatic Post does not respond to the cooperating sponsor’s request for concurrence within 15 days, the cooperating sponsor may dispose of the commodities in the manner described in its request and inform the USAID or Diplomatic Post of its action taken in accordance with this section.
(i) Sale for the most appropriate use, i.e., animal feed, fertilizer, or industrial use, at the highest obtainable price. When the commodity is sold, all U.S. Government markings shall be obliterated, removed or crossed out.
(ii) Transfer to an approved Food for Peace program for use as livestock feed. AID/W shall be advised promptly of any such transfer so that shipments from the United States to the livestock feeding program can be reduced by an equivalent amount.
(iii) Donation to a governmental or charitable organization for use as animal feed or for other nonfood use.
(iv) If the commodity is unfit for any use or if disposal in accordance with paragraphs (b)(2) (i), (ii) or (iii) of this section is not possible, the commodity shall be destroyed in such manner as to prevent its use for any purpose. Commodities valued at $500 or more shall be destroyed under the observation of a representative of the USAID or Diplomatic Post if practicable. When the cooperating sponsor informs the USAID or Diplomatic Post of its intention to destroy commodities, the cooperating sponsor shall indicate the kind and amount of commodities that will be destroyed, the manner of destruction, the representative(s) of local authorities who will witness the destruction, and the date when the commodities will be destroyed. The date shall be established on the basis of programmatic need, but an effort should be made to provide a reasonable opportunity for a representative of the USAID or Diplomatic Post to attend. The commodities may be destroyed on the date indicated even if there is no representative of the USAID or Diplomatic Post to observe this action.
(3) Expenses incidental to the handling and disposition of the damaged commodity shall be paid by the cooperating sponsor unless it is determined by USAID or the Diplomatic Post that the damage could not have been prevented by the proper exercise of the cooperating sponsor’s responsibility under the terms of the Operational Plan or TA. Actual expenses incurred, including third party costs, in selling the commodities may be deducted from the sales proceeds and, except for monetization programs, the net proceeds shall be deposited with the U.S. Disbursing Officer, American Embassy, with instructions to credit the deposit to CCC Account No. 20FT401. In monetization programs, net proceeds shall be deposited in the special account used for the approved program.
(4) The cooperating sponsor shall furnish USAID or the Diplomatic Post a written report in accordance with § 211.9(f), and the report shall enclose a certification by a public health official or other competent authority of
(i) The exact quantity of the damaged commodity disposed of because it was determined to be unfit for any use and
(ii) The manner in which the commodities were destroyed.
§ 211.9 Liability for loss damage or improper distribution of commodities.
(Where the instructions in this § 211.9 state that the cooperating sponsor should contact USDA or CCC, the contact office is: Kansas City ASCS Commodity Office (KCCO), P.O. Box 419205, Kansas City, Missouri 64141-6205. For Section 211.9 (a) and (b) contact: KCCO, Chief, Processed Commodities Division. For § 211.9(c) contact: KCCO, Chief, Claims and Collections Division, Kansas City, Missouri 64141-6105.)
(a) Fault of cooperating sponsor prior to loading on ocean vessel. A cooperating sponsor and A.I.D. shall agree on a schedule for shipping commodities. A nongovernmental cooperating sponsor that books cargo for ocean transportation must notify USDA immediately if the vessel does not arrive at the U.S. port of export in accordance with the agreed shipping schedule. USDA will determine whether the commodity shall be
(1) Moved to another available outlet;
(2) Stored at the port for delivery to the nongovernmental cooperating sponsor when a vessel is available for loading; or
(3) Disposed of as USDA may deem proper.
(b) Fault of others prior to loading on ocean vessel. A nongovernmental cooperating sponsor shall immediately notify CCC if there is a loss of or damage to commodities, between the time title is transferred to the cooperating sponsor and the time the commodities are loaded on board the vessel, that is caused by the act or omission of a third party, such as a warehouseman or carrier, who is or may be legally liable for the loss or damage. The cooperating sponsor also shall promptly assign to CCC any claim it has against the third party and forward to CCC all documents relating to the loss or damage and the claim. CCC shall have the right to initiate, prosecute, and retain the proceeds all claims for such loss or damage.
(c) Ocean carrier loss and damage – (1) Survey and outturn reports. (i) Nongovernmental cooperating sponsors shall arrange for an independent cargo surveyor to attend the discharge of the cargo and to count or weigh the cargo and examine its condition, unless USAID or the Diplomatic Post determines that such examination is not feasible, or if CCC has made other provision for such examinations and reports. The surveyor shall prepare a report of its findings showing the quantity and condition of the commodities discharged. The report also shall show the probable cause of any damage noted, and set forth the time and place when the examination was made. If practicable, the examination of the cargo shall be conducted jointly by the surveyor, the consignee, and the ocean carrier, and the survey report shall be signed by all parties. Customs receipts, port authority reports, shortlanding certificates, cargo boat notes, stevedore’s tallies, etc., where applicable, shall be obtained and furnished with the report of the surveyor. Whenever a damaged commodity appears unfit for its intended use, the cooperating sponsor shall obtain
(A) A certification by a public health official or similar competent authority regarding the condition of the commodity; and
(B) A certificate of disposition if the commodity is determined to be unfit for its intended use. These certificates shall be obtained as soon as possible after discharge of the cargo. If the cooperating sponsor can provide a narrative chronology or other commentary to assist in the adjudication of ocean transportation claims, this information should be forwarded as follows: cooperating sponsors shall prepare such a statement in any case where the loss is estimated to be in excess of $5,000; all documentation shall be in English or supported by an English translation and shall be forwarded as set forth in paragraphs (c)(1) (iii) and (iv) of this section; and the cost of an English translation shall be incorporated into the survey fee. The cooperating sponsor may, at its option, also engage the independent surveyor to supervise clearance and delivery of the cargo from customs or port areas to the cooperating sponsor or its agent and to issue delivery survey reports thereon.
(ii) In the event of cargo loss or damage, a nongovernmental cooperating sponsor shall provide the names and addresses of individuals who were present at the time of discharge and during survey and who can verify the quantity lost or damaged. In the case of bulk grain shipments, the cooperating sponsor shall obtain the services of an independent surveyor to:
(A) Observe discharge of the cargo;
(B) Report on discharging method (including whether a scale was used, its type and calibration and other factors affecting its accuracy, or an explanation of why a scale was not used and how weight was determined);
(C) Furnish information as to whether cargo was discharged in accordance with port customs;
(D) Provide actual or estimated (if scales not used) quantity of cargo lost during discharge and specify how such losses occurred;
(E) Obtain copies of port and/or ship records including scale weights, where applicable, to show quantity discharged;
(F) Verify that upon conclusion of discharge, cargo holds are empty;
(G) Provide to USDA information as to quantity, type and cause of lost or damaged cargo;
(H) Furnish daily tally totals and any other pertinent information about the bagging of the bulk cargo when cargo is bagged or stacked by vessel interests; and
(I) Notify the cooperating sponsor immediately if additional services are necessary to protect cargo interests or if the surveyor has reason to believe that the correct quantity was not discharged.
(iii) Cooperating sponsors shall send to USDA copies of all reports and documents pertaining to the discharge of commodities. For those surveys arranged by CCC, the cooperating sponsors may obtain a copy of the report from the local USAID Food for Peace Officer.
(iv) CCC will reimburse a nongovernmental cooperating sponsor for the costs incurred by it in obtaining the services of an independent surveyor to conduct examinations of the cargo and render the report set forth above. Reimbursement by CCC will be made upon receipt by CCC of the survey report and the surveyor’s invoice or other documents that establish the survey cost. However, CCC will not reimburse a nongovernmental cooperating sponsor for the costs of only a delivery survey, in the absence of a discharge survey, or for any other survey not taken contemporaneously with the discharge of the vessel, unless such deviation from the documentation requirements of paragraph (c)(1) of this section is justified to the satisfaction of CCC.
(v) CCC normally will contract for the survey of cargo on shipments furnished under Transfer Authorizations, including shipments for which A.I.D. contracts for the ocean transportation services. Survey contracts normally will be let on a competitive bid basis. However, if a USAID or Diplomatic Post desires that CCC limit its consideration to only certain selected surveyors, USAID or the Diplomatic Post shall furnish AID/W a list of eligible surveyors for forwarding to CCC. Surveyors may be omitted from the list, for instance, based on foreign relations considerations, conflicts of interest, and/or lack of demonstrated capability to carry out surveying responsibilities properly as set forth in the requirements of CCC. Upon receipt of written justification for removal of a particular survey firm, CCC will consider removal of such firm and advise the USAID via AID/W of the final determination. AID/W will furnish CCC’s surveying requirements to a USAID or Diplomatic Post upon request. If CCC is unable to find a surveyor at a port to which a shipment has been consigned, CCC may request AID/W to contact USAID or the Diplomatic Post to arrange for a survey. The surveyor’s bill for such services shall be submitted to USAID or the Diplomatic Post for review. After the billing has been approved, USAID or the Diplomatic Post either may pay the bill using funds in CCC account 20FT401, if available, or forward the bill to AID/W for transmittal to CCC for payment. If USAID or the Diplomatic Post pays the bill, AID/W shall be advised of the amount paid, and CCC will reimburse USAID or the Diplomatic Post.
(2) Claims against ocean carriers. (i) Whether or not title to commodities has transferred from CCC to the cooperating sponsor, if A.I.D. contracted for the ocean transportation, CCC shall have the right to initiate, prosecute, and retain the proceeds of all claims against ocean carriers for cargo loss and/or damage arising out of shipments of commodities transferred or delivered by CCC hereunder.
(ii)(A) Unless otherwise provided in the Operational Plan or TA, nongovernmental cooperating sponsors shall file notice of any cargo loss and/or damage with the ocean carrier immediately upon discovery of any such loss and/or damage, promptly initiate claims against the ocean carrier for cargo loss and/or damage, take all necessary action to obtain restitution for losses within any applicable periods of limitations, and transmit to CCC copies of all such claims. However, the nongovernmental cooperating sponsor need not file a claim when the cargo loss and/or damage is not in excess of $100, or in any case when the loss and/or damage is between $100 and $300 and it is determined by the nongovernmental cooperating sponsor that the cost of filing and collecting the claim will exceed the amount of the claim. The nongovernmental cooperating sponsor shall transmit to CCC copies of all claims filed with the ocean carriers for cargo loss and/or damage, as well as information and/or documentation on shipments when no claim is to be filed. When General Average has been declared, no action will be taken by the nongovernmental cooperating sponsor to file or collect claims for loss or damage to commodities. (See paragraph (c)(2)(iii) of this section.)
(B) The value of commodities misused, lost or damaged shall be determined on the basis of the domestic market price at the time and place the misuse, loss or damage occurred, or, in case it is not feasible to obtain or determine such market price, the f.o.b. or f.a.s. commercial export price of the commodity at the time and place of export, plus ocean freight charges and other costs incurred by the U.S. Government in making delivery to the cooperating sponsor. When value is determined on a cost basis, nongovernmental cooperating sponsors may add to the value any provable costs they have incurred prior to delivery by the ocean carrier. In preparing the claim statement, these costs shall be clearly segregated from costs incurred by the U.S. Government. With respect to claims other than ocean carrier loss or damage claims, at the request of the cooperating sponsor or upon the recommendation of USAID or the Diplomatic Post, AID/W may determine that such value may be established on some other justifiable basis. When replacement is made, the value of commodities misused, lost or damaged shall be their value at the time and place the misuse, loss, or damage occurred and the value of the replacement commodities shall be their value at the time and place replacement is made.
(C) Amounts collected by nongovernmental cooperating sponsors on claims against ocean carriers not in excess of $200 may be retained by the nongovernmental cooperating sponsor. On claims involving loss and/or damage having a value in excess of $200, nongovernmental cooperating sponsors may retain from collections received by them, the larger of:
(1) The amount of $200 plus 10 percent of the difference between $200 and the total amount collected on the claim, up to a maximum of $500, or
(2) Actual administrative expenses incurred in collection of the claim if approved by CCC.
(D) A nongovernmental cooperating sponsor may redetermine claims on the basis of additional documentation or information, not considered when the claims were originally filed when such documentation or information clearly changes the ocean carrier’s liability. Approval of such changes by CCC is not required regardless of amount. However, copies of redetermined claims and supporting documentation or information shall be furnished to CCC.
(E) A nongovernmental cooperating sponsor may negotiate compromise settlements of claims regardless of the amount thereof, except that proposed compromise settlements of claims having a value in excess of $5,000 shall not be accepted until such action has been approved in writing by CCC. When a claim is compromised, the nongovernmental cooperating sponsor may retain from the amount collected, the amounts authorized in paragraph (c)(2)(ii)(C) and in addition, an amount representing such percentage of the special charges described in paragraph (c)(2)(ii)(C) as the compromised amount is to the full amount of the claim. When a claim is not in excess of $600, the nongovernmental cooperating sponsor may terminate collection activity on the claim according to the standards set forth in the Federal Claims Collection Standards, 4 CFR 104.3. Approval of such termination by CCC is not required, but the nongovernmental cooperating sponsor shall notify CCC when collection activity on a claim is terminated.
(F) All amounts collected in excess of the amounts authorized herein to be retained shall be remitted to CCC. For the purpose of determining the amount to be retained by the nongovernmental cooperating sponsor from the proceeds of claims filed against ocean carriers, the word “claim” shall refer to the loss and/or damage to commodities which are shipped on the same voyage of the same vessel to the same port destination, irrespective of the kinds of commodities shipped or the number of different bills of lading issued by the carrier. If a nongovernmental cooperating sponsor is unable to collect a claim or negotiate an acceptable compromise settlement within the applicable period of limitation or any extension thereof granted in writing by the liable party or parties, the rights of the nongovernmental cooperating sponsor to the claim shall be assigned to CCC in sufficient time to permit the filing of legal action prior to the expiration of the period of limitation or any extension thereof. Nongovernmental cooperating sponsors shall promptly assign their claim rights to CCC upon request. In the event CCC collects or settles the claim after the rights of the nongovernmental cooperating sponsor to the claim have been assigned CCC, CCC shall, except as shown below, pay to the nongovernmental cooperating sponsor the amount the agency or organization would have been entitled to retain had they collected the same amount. However, the additional 10 percent on amounts collected in excess of $200 will be payable only if CCC determines that reasonable efforts were made to collect the claim prior to the assignment, or if payment is deemed to be commensurate with the extra efforts exerted in further documenting claims. In addition, if CCC determines that the documentation requirements of paragraph (c)(1) have not been fulfilled and the lack of such documentation has not been justified to the satisfaction of CCC, CCC reserves the right to deny payment of all allowances to the nongovernmental cooperating sponsor.
(G) When nongovernmental cooperating sponsors fail to file claims, or permit claims to become time-barred, or fail to provide for the right of CCC to assert such claims, as provided in this § 211.9, and it is determined by CCC that such failure was due to the fault or negligence of the nongovernmental cooperating sponsor, the agency or organization shall be liable to the United States for the cost and freight (C&F) value of the commodities lost to the program.
(iii) If a cargo loss has been incurred on a nongovernmental cooperating sponsor shipment, and general average has been declared, the nongovernmental cooperating sponsor shall furnish to CCC with a duplicate copy to AID/W –
(A) Copies of booking confirmations and the applicable on-board bill(s) of lading,
(B) The related outturn or survey report(s),
(C) Evidence showing the amount of ocean transportation charges paid to the carrier(s), and
(D) An assignment to CCC of the cooperating sponsor’s right to the claim(s) for such loss.
(iv) A.I.D. will initiate and prosecute claims against ocean carriers and defend claims by such carriers, arising from or relating to affreightment contracts booked by A.I.D. where the claims involve entitlement to freight and related costs from the U.S. Government. Proceeds of such claims received by A.I.D. shall be returned to CCC pursuant to agreed procedures.
(d) Fault of cooperating sponsor in country of distribution. If a commodity, monetized proceeds or program income is used for a purpose not permitted under the Operational Plan or TA or this Regulation, or if a cooperating sponsor causes loss or damage to a commodity, monetized proceeds or program income through any act or omission or failure to provide proper storage, care and handling, the cooperating sponsor shall pay to the United States the value of the commodities, monetized proceeds or program income, lost, damaged, or misused, unless A.I.D. determines that such improper distribution or use, or such loss or damage, could not have been prevented by proper exercise of the cooperating sponsor’s responsibility under the Operational Plan or TA and this Regulation. In determining whether there was a proper exercise of the cooperating sponsor’s responsibility, A.I.D. shall consider normal commercial practices in the country of distribution and the problems associated with carrying out programs in developing countries. Payment by the cooperating sponsor shall be made in accordance with paragraph (g) of this section, except that the USAID or Diplomatic Post may agree to permit a cooperating sponsor to replace commodities lost, damaged, or misused with similar commodities of equal value.
(e) Fault of others in country of distribution and in intermediate country. (1) In addition to survey and/or outturn reports to determine ocean carrier loss and damage, the cooperating sponsor shall, in the case of landlocked countries, arrange for an independent survey at the point of entry into the recipient country and to make a report as set forth in paragraph (c)(1) of this section. CCC will reimburse the cooperating sponsor for the costs of a survey as set forth in paragraph (c)(1)(iv).
(2) If a cooperating sponsor acquires any right against a person or governmental or nongovernmental organization based on an event for which the person or organization is responsible that resulted in the damage, loss or misuse of any commodity, monetized proceeds or program income, the cooperating sponsor shall file a claim against the liable party or parties for the value of the commodities, monetized proceeds or program income lost damaged or misused and shall make every reasonable effort to collect the claim. A copy of the claim and related documents shall be provided to USAID or the Diplomatic Post. Cooperating sponsors who fail to file or pursue such claims shall be liable to A.I.D. for the value of the commodities or monetized proceeds or program income lost, damaged, or misused: Provided, however, that the cooperating sponsor may elect not to file a claim if the loss is less than $500 and such action is not detrimental to the program. Cooperating sponsors may retain $150 of any amount collected on an individual claim. In addition, cooperating sponsors may, with the written approval of USAID or the Diplomatic Post, retain either special costs such as reasonable legal fees that they have incurred in the collection of a claim, or pay such legal fees with monetized proceeds or program income. Any proposed settlement for less than the full amount of the claim must be approved by USAID or the Diplomatic Post prior to acceptance. When the cooperating sponsor has exhausted all reasonable attempts to collect a claim, it shall request USAID or the Diplomatic Post to provide further instructions in accordance with paragraph (e)(4).
(3) Calculation of the amount of a claim against others. A claim is the right a cooperating sponsor has against a third party as a result of an event for which the third party is responsible that caused the loss, damage or misuse of commodities, monetized proceeds or program income. The amount of the claim is based on the value of the commodities, monetized proceeds or program income lost, damaged or misused as a result of the event. An individual claim may not be broken down artificially to enlarge the amount the cooperating sponsor may retain as an administrative allowance on collection of the claim. For example, if a cooperating sponsor has a contract with a carrier to transport commodities, and losses occur during a single shipment of commodities from points A to B, the cooperating sponsor has one claim against the carrier, and the amount of the claim will be based on the total value of the commodities lost during the shipment from A to B even though some of the loss might have occurred on each of several trucks or by subcontractors used by the carrier to satisfy its contract responsibility to transport the commodities.
(4) Reasonable attempts to collect the claim shall not be less than the follow-up of initial billings with three progressively stronger demands at not more than 30-day intervals. If these efforts fail to elicit a satisfactory response, legal action in the judicial system of the cooperating country should be pursued unless:
(i) Liability of the third party is not provable,
(ii) The cost of pursuing the claim would exceed the amount of the claim,
(iii) The third party would not have enough assets to satisfy the claim after a judicial decision favorable to the cooperating sponsor,
(iv) Maintaining legal action in the country’s judicial system would seriously impair the cooperating sponsor’s ability to conduct an effective program in the country, or
(v) It is inappropriate for reasons relating to the judiciary or judicial system of the country.
(5) As an alternative to legal action in the judicial system of the country with regard to claims against a public entity of the government of the cooperating country, the cooperating sponsor and the cooperating country may agree to settle disputed claims by an appropriate administrative procedure and/or arbitration. This alternative may be established in the Host Country Food for Peace Program Agreement required under § 211.3(b), or by a separate formal understanding, and must be submitted to USAID or the Diplomatic Post for review and approval. Resolution of disputed claims by any administrative procedure or arbitration agreed to by the cooperating sponsor and the cooperating country should be final and binding on the parties.
(f) Reporting losses to USAID or the Diplomatic Post. (1) The cooperating sponsor shall provide the USAID or Diplomatic Post a quarterly report regarding any loss, damage or misuse of commodities, monetized proceeds or program income. The report must be provided within 30 days after the close of the calendar quarter and shall contain the following information except for commodity losses less than $500: who had possession of the commodities, monetized proceeds or program income; who, if anyone, might be responsible for the loss, damage or misuse; the kind and quantity of commodities; the size and type of containers; the time and place of loss, damage or misuse; the current location of the commodities; the program number; CCC contract number, if known, and if not known, other identifying numbers printed on the commodity containers; the action taken by the cooperating sponsor with respect to recovery or disposal; and the estimated value of the loss, damage or misuse. If any of this information is not available, the cooperating sponsor shall explain why it is not. The report simply may identify separately commodity losses valued at less than $500 and indicate the estimated value of the commodities lost damaged or misused and the action taken by the cooperating sponsor with respect to recovery or disposal, except that the cooperating sponsor shall inform the USAID or Diplomatic Post if it has reason to believe there is a pattern or trend in the loss, damage or misuse of such commodities and provide the information described above for losses of $500 or more together with such other information available to it. USAID or the Diplomatic Post may require additional information about any commodities lost, damaged or misused. Information in the quarterly report may be provided in tabular form to the extent possible, and the report shall enclose a copy of any claim made by the cooperating sponsor during the reporting period.
(2) If any commodity, monetized proceeds or program income is lost or misused under circumstances which give a cooperating sponsor reason to believe that the loss or misuse has occurred as a result of criminal activity, the cooperating sponsor shall promptly report these circumstances to the A.I.D. Inspector General through AID/W, USAID or the Diplomatic Post, and subsequently to the appropriate authorities of the cooperating country unless instructed not to do so by A.I.D. The cooperating sponsor also shall cooperate fully with any subsequent investigation by the Inspector General and/or authorities of the cooperating country.
(g) Handling claims proceeds. Claims against ocean carriers shall be collected in U.S. dollars (or in the currency in which freight is paid, or a pro rata share of each) and shall be remitted (less amounts authorized to be retained) by nongovernmental cooperating sponsors to CCC. With respect to commodities, claims against nongovernmental cooperating sponsors shall be paid to CCC or AID/W in U.S. dollars; amounts paid by other cooperating sponsors and third parties in the country of distribution shall be deposited with the U.S. Disbursing Officer, American Embassy, preferably in U.S. dollars with instructions to credit the deposit to CCC Account No. 12X4336, or in local currency with instructions to credit the deposit to Treasury sales account 20FT401. Any conversion required for these deposits shall be at the highest rate of exchange legally obtainable on the date of deposit unless A.I.D. agrees otherwise in writing. With respect to monetized proceeds and program income, amounts recovered should be deposited into the special interest-bearing account established for the monetized proceeds and may be used for purposes of the approved program.
(h) General average. CCC shall –
(1) Be responsible for settling general average and marine salvage claims;
(2) Retain the authority to make or authorize any disposition of commodities which have not commenced ocean transit or of which the ocean transit is interrupted, and receive and retain any monetary proceeds resulting from such disposition;
(3) In the event of a declaration of general average, initiate, prosecute, and retain all proceeds of cargo loss and damage claims against ocean carriers; and
(4) Receive and retain any allowance in general average. CCC will pay any general average or marine salvage claims determined to be due.
§ 211.10 Records and reporting requirements.
(a) Records. Cooperating sponsors and recipient agencies shall maintain records and documents in a manner which accurately reflects the operation of the program and all transactions pertaining to the receipt, storage, distribution, sale, inspection and use of commodities and to receipt and disbursement of any monetized proceeds and program income. Such records shall be retained for a period of 3 years from the close of the U.S. fiscal year to which they pertain, or longer, upon request by A.I.D. for cause, such as in the case of litigation of a claim or an audit concerning such records. The cooperating sponsor shall transfer to A.I.D. any records, or copies thereof, requested by A.I.D.
(b) Reports. Cooperating sponsors shall submit two copies of audits performed in accordance to § 211.5(c). In addition, cooperating sponsors shall submit to USAID or the Diplomatic Post, and to AID/W such reports as A.I.D. may reasonably request. The following is a list of the principal types of reports that are to be submitted at least annually:
(1) Periodic summary reports showing receipt, distribution, and inventory of commodities and proposed schedules of shipments or calls forward.
(2) Reports relating to the generation of monetized proceeds and program income and the use of such funds for purposes specified in the Operational Plan or TA. See § 211.5(l).
(3) Reports relating to progress and problems in the implementation of the program.
(4) Reports shall be submitted in sufficient detail to enable USAID or the Diplomatic Post to assess and to make recommendations as to the ability of the cooperating sponsors to effectively plan, manage, control and evaluate the Food for Peace programs under their administration.
(5) At the time that an emergency program under Public Law 480, title II is initiated, whether by a governmental or nongovernmental cooperating sponsor, USAID or the Diplomatic Post should
(i) Make a determination regarding the ability of the cooperating sponsor to perform the record-keeping required by this § 211.10, and
(ii) In those instances in which those specific record-keeping requirements cannot be followed, due to emergency circumstances, specify exactly which essential information will be recorded in order to account fully for title II commodities and monetized proceeds.
(c) Inspection and audit. Cooperating sponsors and recipient agencies shall cooperate with and assist U.S. Government representatives to enable them at any reasonable time to:
(1) Examine activities and records of the cooperating sponsor, recipient agencies, processors, or others, pertaining to the receipt, storage, distribution, processing, repackaging, sale and use of commodities by recipients;
(2) Inspect commodities in storage, or the facilities used in the handling or storage of commodities;
(3) Examine and audit books and records, including financial books and records and reports pertaining to storage, transportation, processing, repackaging, distribution, sale and use of commodities and pertaining to the deposit and use of any monetized proceeds and program income;
(4) Review the overall effectiveness of the program as it relates to the objectives set forth in the Operational Plan or TA; and
(5) Examine or audit the procedure and methods used in carrying out the requirements of this Regulation.
§ 211.11 Suspension, termination, and expiration of program.
(a) Termination or suspension by A.I.D. All or any part of the assistance provided under the program, including commodities in transit, may be terminated or suspended by A.I.D. at its discretion if AID/W determines that a cooperating sponsor has failed to comply with the provisions of the approved Operational Plan or TA, or of this Regulation, or that the continuation of such assistance is no longer necessary or desirable. If AID/W believes that circumstances permit, AID/W will provide a nongovernmental cooperating sponsor written notice of A.I.D.’s intention to terminate or suspend the cooperating sponsor’s program, together with an explanation of the reason(s) for A.I.D.’s action, at least 30 days prior to the date indicated in the notice that the program will be terminated or suspended. Comments provided by the nongovernmental cooperating sponsor prior to the effective date of the termination or suspension shall be considered by AID/W in determining whether to rescind the notice. When a program is terminated or suspended, title to commodities which have been transferred to the cooperating sponsor, or monetized proceeds, program income and real or personal property procured with monetized proceeds or program income shall, at the written request of USAID, the Diplomatic Post or AID/W, be transferred to the U.S. Government by the cooperating sponsor or shall otherwise be transferred by the cooperating sponsor as directed by A.I.D. Any then excess commodities on hand at the time the program is terminated shall be disposed of in accordance with § 211.5 (o) and (p) or as otherwise instructed by USAID or the Diplomatic Post. If it is determined that any commodity authorized to be supplied under the Operational Plan or TA is no longer available for Food for Peace programs, such authorization shall terminate with respect to any commodities which, as of the date of such determination have not been delivered f.o.b. or f.a.s. vessel, provided that every effort will be made to give adequate advance notice to protect cooperating sponsors against unnecessarily booking vessels.
(b) Expiration of program. Upon expiration of the approved program under circumstances other than those described in paragraph (a), the cooperating sponsor shall deposit with the U.S. Disbursing Officer, American Embassy, with instructions to credit the deposit to CCC Account No. 20FT401, any remaining monetized proceeds or program income, or the cooperating sponsor shall obtain approval from AID/W for the use of such monetized proceeds or program income, or real or personal property procured with such proceeds or income, for purposes consistent with those authorized for support from A.I.D.
The Assistant Administrator for Food and Humanitarian Assistance, A.I.D., may waive, withdraw, or amend, at any time, any or all of the provisions of this Regulation 11 if such provision is not statutory and it is determined to be in the best interest of the U.S. Government to do so. Any cooperating sponsor which has failed to comply with the provisions of this Regulation or any instructions or procedures issued in connection herewith, or any agreements entered into pursuant hereto may at the discretion of A.I.D. be suspended or disqualified from further participation in any distribution program. Reinstatement may be made at the option of A.I.D. Disqualification shall not prevent A.I.D. from taking other action through other available means when considered necessary.
§ 211.13 Participation by religious organizations.
The funds provided under this part shall be administered in compliance with the standards set forth in part 205, Participation by Religious Organizations in USAID Programs, of this chapter.
Appendix I to Part 211 – Operational Plan
In addition to any other requirement of law or regulation, the Operational Plan will include information outlined below to the extent it is applicable to the specific activity.
1. Program Goals.
Describe program goals and criteria for measuring progress toward reaching the goals. Each program should be designed to achieve measurable objectives within a specified period of time.
2. Program Description.
a. Describe the characteristics, extent and severity of problems that the program will address.
b. Provide a clear concise statement of specific objectives for each program and of criteria for measuring progress towards reaching the objectives. If there are several objectives, indicate priorities.
c. Describe the target population by program, including economic/nutrition-related characteristics, sufficiently to permit a determination of recipient eligibility for title II commodities. Describe the educational and employment characteristics of the target group, if relevant to program objectives; the rationale for selection of the target group, the rationale for the selection of the geographical areas where programs will be carried out; the calculation of coverage and the percent of total target population reached.
d. Describe the intervention including:
(1) Ration composition. A description of rations, rationale for size and composition, assessment of effectiveness (dilution, sharing, acceptance).
(2) Complementary program components and inputs. Identify existing or potential complementary program components, i.e., education, growth monitoring, training, etc., that are necessary to achieve program impact, including determination of financial costs and sources of funding.
(3) Monetization. Describe to whom the commodities will be sold; the sales price (which shall not be less than the value of the food commodities f.a.s. or f.o.b.); arrangements for deposit of the monetization proceeds in a special (segregated), interest bearing account, pending use of the proceeds plus interest for the program; and the capability of the cooperating sponsor and recipient agencies to use and account for monetized proceeds properly as well as technical assistance the cooperating sponsor intends to obtain or provide if necessary in order to ensure that there are adequate financial and other management systems for the program proposed.
(4) Intervention strategy. Describe how the commodities, monetization proceeds, program income and other program components will address the problems. Indicate the recipient agencies to which commodities, monetized proceeds or program income will be transferred, and identify those recipient agencies which will not be required to execute Recipient Agency Agreements, and provide a brief explanation of the reasons.
(5) Linkages with other development activities, such as health or agricultural extension services. Describe specific areas of collaboration relative to program purposes.
(6) Monitoring and evaluation. Include a description of the evaluation plan, including information to be collected for purposes of assessing program operations and impact. Describe the monitoring system for collection, analysis and utilization of information. Include a schedule for carrying out the evaluation as well as a plan for conducting audits (Regulation 11, section 211.5(c)).
(7) Program period. The Operational Plan should cover enough time for a program to become fully operational and to permit evaluation of its effectiveness, including specific measurement of progress in achieving the stated program goals. Normally this will be a multi-year time frame, such as three to five years. Plans for and considerations involved in phasing-out U.S.G. support, and any phasing-over to non-U.S.G. support, should be discussed.
3. Program funding. Provide details of host government, cooperating sponsor and other non-USG support for the proposed program, with specific budgetary information on how these funds are to be used (e.g. complementary inputs, transport, administration). Where relevant, discussion of arrangements which will be made covering voluntary contributions.
4. Publicity. Describe how the requirements for public recognition, container marking, and use of funds set forth in Regulation 11, §§ 211.5i(h), (i) and (k) and in 211.6 (a) and (b), will be met.
5. Logistics. Provide a logistics plan that demonstrates the adequacy and availability in recipient country of port facilities, transportation and storage facilities to handle the flow of commodities to recipients to prevent spoilage or waste. A further affirmation must be made at the time of exportation of the commodity from the United States.
6. Disincentives. Furnish sufficient information concerning the plan of distribution and the target group of recipients so that a determination can be made as to whether the proposed food distribution would result in substantial disincentive to domestic food production. It is not necessary to provide a disincentive analysis if A.I.D. or USDA has completed such an analysis for another program that is relevant to the program proposed by the cooperating sponsor.
7. Accountability. Describe the method to be used to supervise, monitor, and account for the distribution or sale of commodities and the use of monetized proceeds and program income.
8. Import duty. Provide information to show approval of foreign government to import the donated commodities duty free.
9. Voluntary agency regular programs. An Operational Plan is required for all regular, i.e., non-emergency, title II nongovernmental cooperating sponsor programs as part of their program submission, along with the Annual Estimate of Requirements (AER), to USAID or the Diplomatic Post and AID/W. When new multi-year Operational Plans are required, they should be prepared and submitted in advance of the year in which they are to begin, in order to permit adequate time for substantive review and approval. In any event, nongovernmental cooperating sponsor Operational Plans should be submitted to AID/W no later than the Mission Action Plan covering the following fiscal year’s program. Once an Operational Plan has been approved, only an updating will be required on an annual basis, unless there has been a significant change from the approved plan’s program directives, methodology, design or magnitudes. Updates should be submitted each year for review with the AERs.
The response to emergency situations using title II resources does not usually permit the same degree of detail and certainty of analysis that is expected in planning title II non-emergency programs. However, Operational Plans are required for all nongovernmental cooperating sponsors’ emergency programs, along with the AER. An Operational Plan for an emergency program must cover the same basic elements, set forth above, as for a nonemergency program. Thus, all of the above basic issues set forth in the Operational Plan format must be addressed when proposing title II emergency programs as well as regular nonemergency programs.
A USAID or Diplomatic Post is expected to comment on the substance and adequacy of a nongovernmental cooperating sponsor’s Operational Plan when submitted to AID/W along with a program request, and to address the plan’s relationship to and consistency with the Mission’s Country Development Strategy Statement.
Cooperating sponsors agree not to deviate from the program as described in the Operational Plan and other program documents approved by A.I.D., without the prior written approval of A.I.D.
Any cooperating sponsor (governmental or nongovernmental) may initiate an emergency assistance proposal under Public Law 480, title II. Requests are received by a USAID or Diplomatic Post and reviewed and approved before forwarding to AID/W with appropriate recommendations.
a. Nongovernmental emergency program requests can be cabled by USAID or the Diplomatic Post for AID/W review based on information provided and using procedures established for regular programs as described in Regulation 11, § 211.5(a): AER and Operational Plan.
b. A foreign government or international organization (other than World Food Program) emergency request normally requires more Mission involvement in program design and management. However, as in the case of nongovernmental programs, the approval will be based on a cabled program summary based on the program plan outlined in (2) above. On approval, AID/W will prepare a Transfer Authorization (TA) to be signed by the recipient government specifying terms of the program and reporting requirements. Additional guidance in preparing government-to-government or international organizations emergency requests is in chapter 9 and Exhibit A of A.I.D. Handbook 9. The TA serves as (1) the Food for Peace Agreement between the U.S. Government and the cooperating sponsor, (2) the project authorization document, and (3) the authority for the CCC to ship commodities. (Under Pub. L. 480, section 207(a), not later than 15 days after receipt of a call forward from a field mission for commodities, the order shall be transmitted to the CCC.)
Detailed guidance for preparing, approving, implementing and administering these programs is provided in chapters 6, 7, and 11 of A.I.D. Handbook 9.
Describe the problems that can be anticipated in implementing the program in the recipient country as a result of its being a developing country.
A cooperating sponsor should provide a justification for the waiver of any specific section or sections of Regulation 11 that it believes necessary for the program.
PART 212 – PUBLIC INFORMATION
Subpart A – General Provisions
§ 212.1 Purpose and scope.
This subpart contains the rules that the United States Agency for International Development (hereinafter “USAID” or “the Agency”) follows in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. The rules in this subpart 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, are processed under Subpart O. Definitions of FOIA terms are referenced in subpart L of this part.
§ 212.2 Policy.
(a) As a general policy, USAID follows a balanced approach in administering the FOIA. USAID recognizes the right of the public to access information in the possession of the Agency. USAID also recognizes the legitimate interests of organizations or persons who have submitted records to the Agency or who would otherwise be affected by release of records. USAID has no discretion to release certain records, such as trade secrets and confidential commercial information, prohibited from release by law. USAID’s policy calls for the fullest responsible disclosure consistent with those requirements of administrative necessity and confidentiality which are recognized under the FOIA.
(b) For purposes of subparts A through K, M, and O of this part, record means information regardless of its physical form or characteristics including information created, stored, and retrievable by electronic means that is created or obtained by the Agency and under the control of the Agency at the time of the request, including information maintained for the Agency by an entity under Government contract for records management purposes. It does not include records that are not already in existence and that would have to be created specifically to respond to a request. Information available in electronic form shall be searched and compiled in response to a request unless such search and compilation would significantly interfere with the operation of the Agency’s automated information systems.
§ 212.3 Records available on the Agency’s website.
Information that is required to be published in the
Subpart B – Proactive Disclosures of Agency Records
§ 212.4 Materials available for public inspection and in electronic format.
(a) In accordance with this subpart, the Agency shall make the following materials available for public inspection in an electronic format:
(1) Operational policy in USAID’s Automated Directives System (ADS) which have been adopted by the Agency and are not published in the
(2) Administrative staff manuals and instructions to staff that affect any member of the public; and
(3) Copies of all records, regardless of form or format, which have been released pursuant to a FOIA request, and which have been requested three (3) or more times, or because of the nature of their subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records. The Agency shall decide on a case by case basis whether records fall into this category, based on the following factors:
(i) Previous experience with similar records;
(ii) The particular characteristics of the records involved, including their nature and the type of information contained in them; and
(iii) The identity and number of requesters and whether there is widespread media, historical, academic, or commercial interest in the records.
(b) [Reserved]
Subpart C – Requirements for Making Requests
§ 212.5 How to make a request for records.
(a) USAID has a de-centralized system for responding to FOIA requests for all USAID records. The USAID FOIA operations are broken down into two component FOIA Offices: The Bureau for Management, Office of Management Services, Information and Records Division (M/MS/IRD) and the Office of the USAID Inspector General (OIG).
(b) The Bureau for Management, Office of Management Services, Information and Records Division (M/MS/IRD) is the central processing point for requests for USAID records contained in Washington, DC and its overseas missions. All FOIA requests for USAID records (other than OIG records) must be submitted to this office. To make a request for the Agency’s records, a requester may send request via one of the following mediums:
(1) By Email: [email protected]. Please include your mailing address, email address, phone number, and fee category with your request. While our FOIA Specialists are happy to answer questions about the FOIA Program and/or help you formulate your request over the phone, please be advised that FOIA requests cannot be accepted by phone.
(2) Online Portal: To submit your request online, please click the subsequent link: https://foiarequest.usaid.gov/index.aspx.
(3) By U.S. Postal Mail: United States Agency for International Development Bureau for Management, Office of Management Services Services, Information and Records Division USAID Annex, Room 2.4.0A, Washington, DC 20523.
(4) By Telephone: (202) 916-4661.
(5) By Fax: (202) 916-4990.
(c) The Inspector General has received delegated authority from USAID’s Administrator to process requests and issue determinations with respect to requests, and appeals of initial denials of requests, for the OIG’s records. To make a request for OIG records, a requester may send a request via one of the following mediums:
(1) By email: [email protected]. Please include your mailing address, email address, phone number, and fee category with your request.
(2) Online Portal: Please submit a request online via the OIG website at https://oig.usaid.gov/FOIA.
(3) By U.S. Postal Mail: United States Agency of International Development Office of Inspector General, Office of General Counsel 1300 Pennsylvania Avenue NW, Suite 6.06-D, Washington, DC 20523.
(4) By Telephone: (202) 712-1150.
(d) Where a request for records pertains to a third party, a requester may receive greater access by submitting either a notarized consent form signed by the person who is the subject of the records, or a signed declaration by that person, made under penalty of perjury pursuant to 28 U.S.C. 1746, 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). In addition, requesters may present an argument that there exists an overriding public interest in disclosure of the information related to official misconduct by producing evidence that alleged Government impropriety occurred. As an exercise of administrative discretion, the component’s FOIA office can require a requester to supply additional information if necessary in order to verify that a particular individual has consented to disclosure.
(e) Requesters must describe the records sought in sufficient detail to enable the component’s FOIA office personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include specific information that may assist in identifying the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. In general, requesters should include as much detail as possible about the specific records or the types of records that they are seeking. Before submitting their requests, requesters may contact the component FOIA office’s FOIA contact or FOIA Public Liaison to discuss the records they are seeking and to receive assistance in describing the records. If, after receiving a request, the component’s FOIA office determines that it does not reasonably describe the records sought, the component’s FOIA office shall 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 component FOIA office’s designated FOIA Specialist or its FOIA Public Liaison, each of whom is available to assist the requester in reasonably describing the records sought. If a request does not reasonably describe the records sought, the component FOIA office’s response to the request may be delayed or denied.
Subpart D – Responsibility for Responding to Requests
(a) The Assistant Administrator for the Bureau for Management(M) serves as the USAID Chief FOIA Officer. The Chief FOIA Officer has overall responsibility for USAID compliance with the FOIA. The Chief FOIA Officer provides high level oversight and support to USAID’s FOIA programs, and recommends adjustments to agency practices, personnel, and funding as may be necessary to improve FOIA administration, including through an annual Chief FOIA Officers Report submitted to the U.S. Department of Justice. The Chief FOIA Officer is responsible for offering training to agency staff regarding their FOIA responsibilities; serves as the primary liaison with the Office of Government Information Services and the Office of Information Policy; and reviews, not less frequently than annually, all aspects of the Agency’s administration of the FOIA to ensure compliance with the FOIA’s requirements.
(b) The Bureau for Management, Office of Management Services, Information and Records Division (M/MS/IRD) is the component FOIA office that receives, tracks, and processes all of USAID’s FOIA requests, other than requests for OIG records, to ensure transparency within the Agency.
(c) The Deputy Director, Bureau for Management, Office of Management Services (M/MS/OD) serves as the USAID FOIA Appeals Officer for requests for all USAID records other than OIG records. The FOIA Appeals Officer is responsible for receiving and acting upon appeals from requesters whose initial FOIA requests for USAID records (other than OIG records) have been denied, in whole or in part.
(d) The Deputy Inspector General serves as the USAID OIG FOIA Appeals Officer for appeals of requests for OIG records.
(e) The Chief, Bureau for Management, Office of Management Services, Information and Records Division (M/MS/IRD) serves as USAID’s FOIA Officer and USAID’s FOIA Public Liaison. The FOIA Officer is responsible for program direction, original denials, and policy decisions required for effective implementation of USAID’s FOIA program. The FOIA Public Liaison serves as a supervisory official to whom a FOIA requester can raise concerns about the services received, following an initial response from the FOIA staff. In addition, the FOIA Public Liaison assists, as appropriate, in reducing delays, increasing transparency and understanding of the status of requests, and resolving disputes.
(f) The General Counsel to the Inspector General serves as the OIG’s FOIA Officer and FOIA Public Liaison.
(g) The Supervisory FOIA Team Lead is the Principal Operations Officer within the component’s FOIA office for the processing of FOIA requests and release determinations.
(h) The FOIA Specialist also known as the Government Information Specialist (GIS) is responsible for processing requests and preparing records for release when such releases are authorized by the FOIA. They do not have the authority to make denials, including “no records” responses.
(i) The General Counsel (GC), FOIA Backstop Attorney Advisor has responsibility for providing legal advice on all USAID matters regarding or resulting from the FOIA (other than OIG matters). Upon request, GC advises M/MS/IRD on release and denial decisions, and apprises the FOIA Office of all significant developments with respect to the FOIA.
(j) OIG attorneys have responsibility for providing legal advice on all requests and appeals related to OIG records.
(k) Each Attorney Advisor designated to provide legal advice to USAID Bureaus/Independent Offices (B/IOs) is responsible for providing, at M/MS/IRD’s request, legal advice on FOIA requests assigned to those B/IOs.
(l) The designated FOIA Liaison Officer (FLO) in each USAID Bureau and Office is responsible for tasking and facilitating the collection of responsive records and monitoring the production of records to M/MS/IRD.
§ 212.7 Processing of request.
(a) In general. In determining which records are responsive to a request, the component’s FOIA office ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, the component’s FOIA office shall inform the requester of that date.
(b) Authority to grant or deny requests. The FOIA Officer is authorized to grant or to deny any requests for records that are maintained by the Agency (other than OIG records). The OIG FOIA Officer is authorized to grant or to deny any requests for records maintained by OIG.
(c) Consultation, referral, and coordination. When reviewing records located by the Agency in response to a request, the component’s FOIA office shall determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. All consultations and referrals received by the Agency will be handled according to the date that the first agency received the perfected FOIA request. As to any such record, the component’s FOIA office shall proceed in one of the following ways:
(1) Consultation. When records originated with USAID, but contain within them information of substantial interest to another agency, or other Federal Government office, the component’s FOIA office should consult with that other agency prior to making a release determination.
(2) Referral. (i) When a component’s FOIA office believes that a different Department, agency, or component, is best able to determine whether to disclose the record, the component’s FOIA office will refer the responsibility for responding to the request regarding that record, as long as the referral is to an agency that is subject to the FOIA. Ordinarily, the agency that originated the record will be presumed to be best able to make the disclosure determination. However, if the component’s FOIA office and the originating agency jointly agree that the former is in the best position to respond regarding the record, then the record may be handled as a consultation.
(ii) Whenever the component’s FOIA office refers any part of the responsibility for responding to a request to another agency, it shall document the referral, maintain a copy of the record that it refers, and notify the requester of the referral and inform the requester of the name(s) of the agency to which the record was referred, including that agency’s FOIA contact information.
(iii) Where a component’s FOIA office determines that a request was misdirected within the agency, the receiving component’s FOIA office must route the request to the FOIA office of the proper component within the agency.
(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the component’s FOIA office will coordinate with the originating agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination will then be conveyed to the requester by the component’s FOIA office.
(d) Classified information. On receipt of any request involving classified information, the component’s FOIA office must determine whether the information is currently and properly classified in accordance with applicable classification rules. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another agency under any applicable executive order concerning the classification of records, the component’s FOIA office 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. Whenever USAID’s record contains information that has been derivatively classified (for example, when it contains information classified by another agency), the component’s FOIA office must refer the responsibility for responding to that portion of the request to the agency that classified the underlying information.
(e) Furnishing records. The component’s FOIA office shall furnish copies only of records that the Agency has in its possession. The Agency is not compelled to create new records. The Agency is not required to perform research for a requester. The component’s FOIA office is required to furnish only one copy of a record. If information exists in different forms, the component’s FOIA office will provide the record in the form that best conserves government resources. Requests may specify the preferred form or format (including electronic formats) for the records sought by the requester. The component’s FOIA office will accommodate the form or format request if the record is readily reproducible in that form or format.
(f) Archival records. The Agency ordinarily transfers records in accordance with its retirement authority, included in ADS 502, to the National Archives and Records Administration. These records become the physical and legal custody of the National Archives. Accordingly, requests for retired Agency records should be submitted to the National Archives by mail addressed to Special Access and FOIA Staff (NWCTF), 8601 Adelphi Road, Room 5500, College Park, MD 20740 by fax to (301) 837¬1864 or by email to [email protected].
(g) Poor copy. If USAID cannot make a legible copy of a record to be released, the Agency is not required to reconstruct it. Instead, the component’s FOIA office will furnish the best copy possible and note its poor quality in the component’s FOIA office reply.
Subpart E – Timing of Responses to Requests
212.8 Time limits.
(a) In general. The component’s FOIA office ordinarily will respond to requests according to their order of receipt.
(b) Multitrack processing. (1) The component’s FOIA office shall designate a specific track for requests that are granted expedited processing, in accordance with the standards set forth in paragraph (e) of this section. The component’s FOIA office may designate additional processing tracks that distinguish between simple and more complex requests based on the estimated amount of work or time needed to process the request. Among the factors the component’s FOIA office may consider are, the number of pages involved in processing the request and the need for consultations or referrals. The component’s FOIA office shall advise requesters of the track into which their request falls and, when appropriate, shall offer the requesters an opportunity to narrow their request so that it can be placed in a different processing track.
(2) The component’s FOIA office shall generally process requests in each track on a “first-in, first-out” basis.
(c) Unusual circumstances. Whenever the statutory time limit for processing a request cannot be met because of “unusual circumstances,” as defined in the FOIA, and the component’s FOIA office extends the time limit on that basis, the component’s FOIA office shall, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which processing of the request can be expected to be completed. Where the extension exceeds 10 working days, the component’s FOIA office shall, in the written notice, notify the requester of the right to contact the component’s FOIA office’s FOIA Public Liaison, or seek dispute resolution services from the Office of Government Information Services (OGIS). In addition, the component’s FOIA office shall, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing.
(d) Aggregating requests. For the purposes of satisfying unusual circumstances under the FOIA, the component’s FOIA office may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances. The component’s FOIA office shall not aggregate multiple requests that involve unrelated matters.
(e) Expedited processing. (1) Requests and appeals shall be processed on an expedited basis whenever it is determined that they involve:
(i) Circumstances in which the lack of expedited processing 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 who is 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 requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary activity or occupation is information dissemination, though it need not be the requester’s sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request – one that extends beyond the public’s right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, the component’s FOIA office may waive the formal certification requirement.
(3) The component’s FOIA office shall notify the requester within 10 calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, the request shall be given priority, placed in the processing track for expedited requests, 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.
Subpart F – Responses to Requests
§ 212.9 Responsibility for responding to requests.
(a) In general. The component’s FOIA office should, to the extent practicable, communicate with requesters having access to the internet using electronic means, such as email or web portal.
(b) Acknowledgments of requests. The component’s FOIA office shall acknowledge the request and assign it an individualized tracking number. The component’s FOIA office shall include in the acknowledgment a brief description of the records sought to allow requesters to more easily keep track of their requests.
(c) Grants of requests. Once the component’s FOIA office makes a determination to grant a request in full or in part, it shall notify the requester in writing. The component’s FOIA office also shall inform the requester of any fees charged and shall disclose the requested records to the requester promptly upon payment of any applicable fees.
(d) Consultations and referrals. Whenever the component’s FOIA office consults with another Federal Government office over the releasability of a record, the component’s FOIA office shall notify the requester of the consultation and inform the requester of the name(s) of the agency or office with which the consultation is taking place. Whenever the component’s FOIA office refers any part of the responsibility for responding to a request to another Federal Government office, the component’s FOIA office shall document the referral, maintain a copy of the record that it refers, notify the requester of the referral, and inform the requester of the name(s) of the agency to which the record was referred, including that agency’s FOIA contact information.
(e) Adverse determinations of requests. If the component’s FOIA office has made an adverse determination denying a request in any respect, the component’s FOIA office shall notify the requester of that determination in writing, and provide the contact information for the FOIA Public Liaison, as well as a description of the requester’s right to seek mediation services from the Office of Government Information Services (OGIS). Adverse determinations, or denials of requests, include decisions that: the requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. A response will provide an estimate of the volume of any records or any information withheld. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing.
(f) Information furnished. All denials are in writing and describe in general terms the material withheld; state the reasons for the denial, including, as applicable, a reference to the specific exemption of the FOIA authorizing the withholding; explain your right to appeal the decision and identify the official to whom you should send the appeal; and are signed by the person who made the decision to deny all or part of the request. Records disclosed in part must 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 must also be indicated on the record, if technically feasible.
(g) Conducting searches. USAID performs a diligent search for records to satisfy your request. Nevertheless, the Agency may not be able to find the records requested using the information provided, or the records may not exist.
Subpart G – Confidential Commercial Information
§ 212.10 Policy and procedures.
(a) Definitions – (1) Confidential commercial information means commercial or financial information obtained by the Agency from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
(2) Business submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides information, either directly or indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, either at the time of submission or within a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations shall expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.
(c) When notice to business submitters is required. (1) The component’s FOIA office shall promptly provide written notice to a business submitter of confidential commercial information whenever records containing such information are requested under the FOIA if, after reviewing the request, the responsive records, and any appeal by the requester, the component’s FOIA office determines that it may be required to disclose the records, provided:
(i) The requested information has been designated in good faith by the business submitter as information considered protected from disclosure under Exemption 4; or
(ii) The component’s FOIA office has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure under that exemption or any other applicable exemption.
(2) The notice shall either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.
(d) Exceptions to business submitter notice requirements. The notice requirements of this section shall not apply if:
(1) The component’s FOIA office determines that the information is exempt under the FOIA;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the business submitter appears obviously frivolous, except that, in such a case, the component’s FOIA office shall give the business submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.
(e) Opportunity to object to disclosure. (1) The component’s FOIA office shall specify a reasonable time period within which the business submitter must respond to the notice referenced in paragraph (c) of this section. If a business submitter has any objections to disclosure, the business submitter should:
(i) Provide the component’s FOIA office with a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the business submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential.
(ii) [Reserved].
(2) A business submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by the component’s FOIA office after the date of any disclosure decision shall not be considered by the component’s FOIA office. Any information provided by a business submitter under this subpart may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. The component’s FOIA office shall consider a business submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
(g) Notice of intent to disclose. Whenever the component’s FOIA office decides to disclose information over the objection of a business submitter, the component’s FOIA office shall provide the business submitter written notice, which shall include:
(1) A statement of the reasons why each of the business submitter’s disclosure objections was not sustained;
(2) A description of the information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the component’s FOIA office shall promptly notify the business submitter.
(i) Requester notification. The component’s FOIA office shall 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.
Subpart H – Administrative Appeals
§ 212.11 Appeal procedures.
The component’s FOIA office must inform the requester of the reasons for the denial and the requester’s right to appeal the denial to the FOIA Appeals Officer whenever a FOIA request is denied.
(a) What a requester can appeal. A requester may appeal the withholding of a document or denial of a fee waiver request. A requester may contest the type or amount of fees that were charged, or may appeal any other type of adverse determination under the FOIA. A requester may also appeal because USAID failed to conduct an adequate search for the documents requested. However, a requester may not file an administrative appeal for the lack of a timely response. A requester may administratively appeal any portion denied when their request is granted in part and denied in part.
(b) Requirements for making an appeal. A requester may appeal any adverse determinations to the component’s FOIA office. The requester must make the appeal in writing. To be considered timely, the appeal must be postmarked, or in the case of electronic submissions, transmitted, within 90 calendar days after the date of the response. The appeal should clearly identify the component FOIA office’s 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.”
(c) Adjudication of appeals. (1) The Deputy Director of the Bureau for Management Services or designee will conduct de novo review and make the final determination on the appeals related to all Agency records other than OIG records. The Deputy Inspector General will conduct de novo review and make the final determination on the appeals relating to OIG records.
(2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.
(d) Decisions on appeals. A decision on an appeal must be made in writing. A decision that upholds the component FOIA office’s determination will contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision will provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the mediation services offered by the Office of Government Information Services of the National Archives and Records Administration (OGIS) as a non-exclusive alternative to litigation. Mediation is a voluntary process. If the component’s FOIA office agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute. If the component FOIA office’s decision is remanded or modified on appeal, the requester will be notified of that determination in writing. The component’s FOIA office will thereafter further process the request in accordance with that appeal determination and respond directly to the requester.
(e) When appeal is required. Before seeking review by a court of the component FOIA office’s adverse determination, a requester generally must first submit a timely administrative appeal.
(f) Where to file an appeal. An appeal (other than appeals related to OIG records) may be filed by sending a letter to: FOIA Appeals Officer, Bureau for Management, Deputy Director, Office of Management Services, U.S. Agency for International Development, USAID Annex, M/MS, Room 10.8 OD, Washington, DC 20523; or by email at [email protected]. An appeal relating to OIG records may be filed by sending a letter to: Deputy Inspector General, Office of Inspector General, U.S. Agency for International Development, Suite 6.06-D, RRB, 1300 Pennsylvania Avenue NW, Washington, DC 20523-4601; or by email at [email protected]. There is no charge for filing an administrative appeal.
§ 212.12 Mediation and dispute services.
(a) The Office of Government Information Services of the National Archives and Records Administration (OGIS) is a Freedom of Information Act (FOIA) resource for the public and the government. Congress has charged OGIS with reviewing FOIA policies, procedures and compliance of Federal agencies and to recommend changes to the FOIA. OGIS’ mission also includes providing dispute resolution services between Federal agencies and requesters. OGIS works as a non-exclusive alternative to litigation.
(b) When the component’s FOIA office makes a determination on a request, the component’s FOIA office shall offer the services of the FOIA Public Liaison, and will notify requesters of the mediation services provided by OGIS. Specifically, the component’s FOIA office will include in the component’s FOIA office’s notification to the requester:
(1) The right of the requester to seek assistance from the FOIA Public Liaison of the component’s FOIA office, and in the case of an adverse determination;
(2) The right of the requester to seek dispute resolution services from the FOIA Public Liaison of the component’s FOIA office or the Office of Government Information Services.
Subpart I – Preservation of Records
§ 212.13 Policy and procedures.
The component’s FOIA office shall preserve all correspondence relating to the requests it receives under this subpart, and all records processed pursuant to such requests, until such time as the destruction of such correspondence and records is authorized pursuant to title 44 of the United States Code or the General Records Schedule 4.2 of the National Archives and Records Administration (NARA). Under no circumstances shall records be sent to a Federal Records Center, transferred to the permanent custody of NARA, or destroyed while they are the subject of a pending request, appeal, or civil action under the FOIA.
Subpart J – Fees
§ 212.14 Fees to be charged – general.
(a) In general. The component’s FOIA office shall charge for processing requests under the FOIA in accordance with the provisions of this section and with the Office of Management and Budget (OMB) Guidelines. In order to resolve any fee issues that arise under this section, the component’s FOIA office may contact a requester for additional information. The component’s FOIA office shall ensure that search, review, and duplication are conducted in the most efficient and the least expensive manner. The component’s FOIA office ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States.
(b) Definitions. For purposes of this section:
(1) Commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. The component FOIA office’s decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester’s intended use of the information.
(2) Direct costs are those expenses that the Agency incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to a FOIA request. Direct costs do not include overhead expenses such as the costs of space, and of heating or lighting a facility.
(3) Duplication is reproducing a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.
(4) Educational institution is any 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.
(5) Fee waiver is a waiver or reduction of processing fees if a requester can demonstrate that certain statutory standards are satisfied, including that the information is in the public interest and is not requested for a commercial interest.
(6) Noncommercial scientific institution is an institution that is not operated on a “commercial” basis, as defined in paragraph (b)(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. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and are not for a commercial use.
(7) 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. 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 shall not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, components shall also consider a requester’s past publication record in making this determination.
(8) Requester category is one of the three categories that agencies place requesters in for the purpose of determining whether a requester will be charged fees for search, review, and duplication. The three categories are: commercial requesters; non-commercial scientific or educational institutions or news media requesters; and all other requesters.
(9) Review is 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 made by a confidential commercial information submitter, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(10) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records.
(c) Charging fees. In responding to FOIA requests, the component’s FOIA office shall charge the following fees unless a waiver or reduction of fees has been granted under paragraph (k) of this section.
(1) Search. Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. Search fees shall be charged for all other requesters, subject to the restrictions of paragraph (d) of this section. The component’s FOIA office may properly charge for time spent searching even if they do not locate any responsive records or if they determine that the records are entirely exempt from disclosure.
(2) Duplication. Duplication fees shall be charged to all requesters, subject to the restrictions of paragraph (d) of this section. The component’s FOIA office shall honor a requester’s preference for receiving a record in a particular form or format where it is readily reproducible by the component’s FOIA office in the form or format requested. Where photocopies are supplied, the component’s FOIA office shall provide one copy per request at a cost of ten cents per page. For copies of records produced on tapes, disks, or other media, the direct costs of producing the copy, including operator time shall be charged. Where paper documents must be scanned in order to comply with a requester’s preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials. For other forms of duplication, the component’s FOIA office shall charge the direct costs.
(3) Review. Review fees shall be charged to requesters who make commercial use requests. Review fees shall be assessed in connection with the initial review of the record, i.e., the review conducted by the component’s FOIA office to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with the component’s FOIA office re-review of the records in order to consider the use of other exemptions may be assessed as review fees.
(d) Restrictions on charging fees. (1) No search fees will be charged for requests by educational institutions, noncommercial scientific institutions, or representatives of the news media, unless the records are sought for commercial use.
(2) When the component’s FOIA office determines that unusual circumstances apply to the processing of a request, and the component’s FOIA office has provided timely written notice to the requester, the delay is excused for an additional 10 days. If the component’s FOIA office 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 as provided in paragraphs (d)(2)(i) and (ii) of this section.
(i) Exception. If unusual circumstances apply and more than 5000 pages are necessary to respond to the request, the component’s FOIA office 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 the component’s FOIA office has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request.
(ii) Court Determination that exceptional circumstances exist. If a court determines that exceptional circumstances exist, the component’s FOIA office’s failure to comply with a time limit shall be excused for the length of time provided by the court order.
(3) If the component’s FOIA office fails to comply with the time limits in which to respond to a request, and if no unusual or exceptional circumstances, as those terms are defined by the FOIA, apply to the processing of the request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees.
(4) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(5) Except for requesters seeking records for a commercial use, the component’s FOIA office shall provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for other media); and
(ii) The first two hours of search.
(6) When, after first deducting the 100 free pages (or its cost equivalent) and the first two hours of search, a total fee calculated under paragraph (c) of this section is $25.00 or less for any request, no fee will be charged.
(e) Notice of anticipated fees in excess of $25.00. (1) When the component’s FOIA office determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the component’s FOIA office shall notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the component’s FOIA office shall advise the requester accordingly. If the requester is a noncommercial use requester, the notice shall specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and shall advise the requester whether those entitlements have been provided.
(2) In cases in which a requester has been notified that the actual or estimated fees are in excess of $25.00, the request shall not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requester’s statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. The component’s FOIA office is not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some designated amount of fees, but the component’s FOIA office estimates that the total fee will exceed that amount, the component’s FOIA office shall 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 component’s FOIA office shall 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.
(4) The component’s FOIA office shall make available their FOIA Public Liaison or other FOIA Specialists to assist any requester in reformulating a request to meet the requester’s needs at a lower cost.
(f) Charges for other services. Although not required to provide special services, if the component’s FOIA office chooses to do so as a matter of administrative discretion, the direct costs of providing the service shall be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail.
(g) Charging interest. The component’s FOIA office may charge interest on any unpaid bill starting on the 31st day following the date of billing the requester. Interest charges shall be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the billing date until payment is received by the component’s FOIA office. The component’s FOIA office shall follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.
(h) Aggregating requests. When the component’s FOIA office reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, the component’s FOIA office may aggregate those requests and charge accordingly. The component’s FOIA office may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, the component’s FOIA office will aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters shall not be aggregated.
(i) Advance payments. (1) For requests other than those described in paragraph (i)(2) or (3) of this section, the component’s FOIA office shall not require the requester to make an advance payment before work is commenced or continued on a request. Payment owed for work already completed (i.e., payment before copies are sent to a requester) is not an advance payment.
(2) When the component’s FOIA office determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. The component’s FOIA office may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.
(3) Where a requester has previously failed to pay a properly charged FOIA fee to the component’s FOIA office within 30 calendar days of the billing date, the component’s FOIA office may require that the requester pay the full amount due, plus any applicable interest on that prior request, and the component’s FOIA office may require that the requester make an advance payment of the full amount of any anticipated fee before the component’s FOIA office begins to process a new request or continues to process a pending request or any pending appeal. If the component’s FOIA office has a reasonable basis to believe that a requester has misrepresented the requester’s identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.
(4) In cases in which the component’s FOIA office requires advance payment, the request shall not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of the component FOIA office’s fee determination, the request will be closed.
(j) Other statutes specifically providing for fees. The fee schedule of this section does not apply to fees charged under any statute that specifically requires an agency to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily-based fee schedule program, the component’s FOIA office shall inform the requester of the contact information for that program.
(k) Requirements for waiver or reduction of fees. (1) Records responsive to a request shall be furnished without charge or at a reduced rate below the rate established under paragraph (c) of this section, where the component’s FOIA office determines, based on all available information, that the requester has demonstrated that:
(i) 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
(ii) Disclosure of the information is not primarily in the commercial interest of the requester.
(2) In deciding whether disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of operations or activities of the government, the component’s FOIA office shall consider all four of the following factors:
(i) The subject of the request must concern identifiable operations or activities of the Federal Government, with a connection that is direct and clear, not remote or attenuated.
(ii) Disclosure of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute” to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not contribute to such understanding where nothing new would be added to the public’s understanding.
(iii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester’s expertise in the subject area as well as the requester’s ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration.
(iv) The public’s understanding of the subject in question must be enhanced by the disclosure to a significant extent. However, the component’s FOIA office shall not make value judgments about whether the information at issue is “important” enough to be made public.
(3) To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the component’s FOIA office shall consider the following factors:
(i) The component’s FOIA office shall identify any commercial interest of the requester, as defined in paragraph (b)(1) of this section, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information regarding this consideration.
(ii) A waiver or reduction of fees is justified where the public interest is greater than any identified commercial interest in disclosure. The component’s FOIA office ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.
(4) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.
(5) Requests for a waiver or reduction of fees should be made when the request is first submitted to the component’s FOIA office and should address the criteria referenced above. 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 shall be required to pay any costs incurred up to the date the fee waiver request was received. A requester may appeal the denial of a fee waiver.
§ 212.15 Fees to be charged – requester categories.
(a) The following specific fees are charged for services rendered:
(1) Commercial use:
(i) Search: $40.00 per hour. Search costs will be assessed even though no records may be found or even if, after review, there is no disclosure or records.
(ii) Review: $55.00 per hour.
(iii) Duplication: 10¢ per page.
(2) Educational & Non-Commercial Scientific Institutions:
(i) Search: No fee.
(ii) Review: No fee.
(iii) Duplication: 10¢ per page after the first 100 pages.
(3) Representatives of the News Media:
(i) Search: No fee.
(ii) Review: No fee.
(iii) Duplication: 10¢ per page after the first 100 pages.
(4) All Others:
(i) Search: Same as “Commercial Users” except the first two hours shall be furnished without charge.
(ii) Review: No fee.
(iii) Duplication: 10¢ per page after the first 100 pages.
(b) If copies of records are provided in other than paper format (such as on microfiche, video tape, or as electronic data files), or other than first-class mail is requested or required, the requester is charged the actual cost of providing these additional services.
Subpart K – FOIA Definitions
§ 212.16 Glossary.
As used in this part:
Administrative FOIA Appeal is an independent review of the initial determination made in response to a FOIA request. Requesters who are dissatisfied with the response made on their initial request have a statutory right to appeal the initial determination made by the component’s FOIA office.
Agency is any executive agency, military agency, government corporation, government-controlled corporation, or other establishment in the executive branch of the Federal Government, or any independent regulatory agency. Thus, USAID is an agency.
Complex request is a request that typically seeks a high volume of material or requires additional steps to process such as the need to search for records in multiple locations.
Consultation is when USAID locates a record that contains information of substantial interest to another agency, and the component’s FOIA office asks for the views of that other agency on the disclosability of the records before any final determination is made.
Discretionary disclosure is information that the component’s FOIA office releases even though it could have been withheld under one of the FOIA’s exemptions.
Duplication is reproducing a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.
Electronic record is any information that is recorded in a form that only a computer can process and that satisfies the definition of a Federal record per the Federal Records Act. Federal electronic records are not necessarily kept in a “recordkeeping system” but may reside in a generic electronic information system or are produced by an application such as word processing or electronic mail.
Exemptions are nine categories of information that are not required to be released in response to a FOIA request because release would be harmful to a government or private interest. These categories are called “exemptions” from disclosures.
Expedited processing is the FOIA response track granted in certain limited situations, specifically when a FOIA request is processed ahead of other pending requests.
Freedom of Information Act or FOIA is a United States Federal law that grants the public access to information possessed by government agencies. Upon written request, U.S. Government agencies are required to release information unless it falls under one of nine exemptions listed in the Act.
Frequently requested records are records that have been requested three (3) or more times from the component’s FOIA office.
Multi-track processing is a system that divides in-coming FOIA requests according to their complexity so that simple requests requiring relatively minimal review are placed in one processing track and more complex requests are placed in one or more other tracks. Requests granted expedited processing are placed in yet another track. Requests in each track are processed on a first-in/first-out basis.
Office of Government Information Services (OGIS) offers mediation services to resolve disputes between FOIA requesters and agencies as an alternative to litigation. OGIS also reviews agency FOIA compliance, policies, and procedures and makes recommendations for improvement. The Office is a part of the National Archives and Records Administration, and was created by Congress as part of the OPEN Government Act of 2007, which amended the FOIA.
Proactive disclosures are records made publicly available by agencies without waiting for a specific FOIA request. Agencies now post on their websites’ material concerning their functions and mission. The FOIA itself requires agencies to make available certain categories of information, including final opinions and orders, specific policy statements, certain administrative staff manuals and frequently requested records.
Record means information regardless of its physical form or characteristics including information created, stored, and retrievable by electronic means that is created or obtained by the Agency and under the control of the Agency at the time of the request, including information maintained for the Agency by an entity under Government contract for records management purposes. It does not include records that are not already in existence and that would have to be created specifically to respond to a request. Information available in electronic form shall be searched and compiled in response to a request unless such search and compilation would significantly interfere with the operation of the Agency’s automated information systems.
Referral occurs when an agency locates a record that originated with, or is of otherwise primary interest to another Department, agency, or component. It will forward that record to the other agency to process the record and to provide the final determination directly to the requester.
Simple request is a FOIA request that a component’s FOIA office anticipates will involve a small volume of material or which will be able to be processed relatively quickly.
Subpart L – Other Rights and Services
§ 212.17 Rights and services qualified by the FOIA statute.
Nothing in this subpart shall be construed to entitle any person, as a right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
Subpart M – Privacy Act Provisions
§ 212.18 Purpose and scope.
This subpart contains the rules that the USAID follows under the Privacy Act of 1974 (PA), 5 U.S.C. 552a, as amended. These rules should be read together with the text of the statute, which provides additional information about records maintained on individuals. The rules in this subpart apply to all records in systems of records maintained by the agency that are retrieved by an individual’s name or personal identifier. They describe the procedures by which individuals may request access to records about themselves, request amendment or correction of those records, and request an accounting of disclosures of those records by the agency. If any records retrieved pursuant to an access request under the PA are found to be exempt from access under that Act, they will be processed for possible disclosure under the FOIA, as amended. No fees shall be charged for access to or amendment of PA records.
§ 212.19 Privacy definitions.
As used in this subpart, the following definitions shall apply:
(a) Individual means a citizen or a legal permanent resident alien (LPR) of the United States.
(b) Maintain includes maintain, collect, use, or disseminate.
(c) Record means any item, collection, or grouping of information about an individual that is maintained by the agency 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 photograph.
(d) System of records means a group of any records under the control of the agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to an individual.
§ 212.20 Request for access to records.
(a) In general. Requests for access to records (other than OIG records) under the PA must be made in writing and mailed to the Bureau for Management Services, Information and Records Division at the address given in § 212.5. Requests for access to OIG records under the PA must be made in writing and mailed to the Office of General Counsel for the OIG at the address given in § 212.5.
(b) Description of records sought. Requests for access should describe the requested record(s) in sufficient detail to permit identification of the record(s). At a minimum, requests should include the individual’s full name (including maiden name, if appropriate) and any other names used, current complete mailing address, (city, state and country). Helpful data includes the approximate time period of the record and the circumstances that give the individual reason to believe that the agency maintains a record under the individual’s name or personal identifier, and, if known, the system of records in which the record is maintained. In certain instances, it may be necessary for the component’s FOIA office to request additional information from the requester, either to ensure a full search, or to ensure that a record retrieved does in fact pertain to the individual.
(c) Verification of personal identity. The component’s FOIA office will require reasonable identification of individuals requesting records about themselves under the PA’s access provisions to ensure that records are only accessed by the proper persons. Requesters must state their full name, current address, citizenship or legal permanent resident alien status, and date (city, state, and country). The request must be signed, and the requester’s signature must be either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746. If the requester seeks records under another name the requester has used, a statement, under penalty of perjury, that the requester has also used the other name must be included.
(d) Third party access. The component’s FOIA office may process third party requests, as described in this section. In the absence of a request by, or prior written consent of, the individual to whom the records pertain, the component’s FOIA office will process third party requests under the FOIA. The Agency’s form, AID 507-1, may be used to certify the identity and provide third party authorization.
(1) Parents and guardians of minor children. Upon presentation of acceptable documentation of the parental or guardian relationship, a parent or guardian of a U.S. citizen or LPR minor (an unmarried person under the age of 18) may, on behalf of the minor, request records under the PA pertaining to the minor. In any case, U.S. citizen or LPR minors may request such records on their own behalf.
(2) Guardians. A guardian of an individual who has been declared by a court to be incompetent may act for and on behalf of the incompetent individual upon presentation of appropriate documentation of the guardian relationship.
(3) Authorized representatives or designees. Third-party access to an individual’s records shall be granted pursuant to a written request by, or with the prior written consent of, the individual. The designated third party must submit identity verification information described in paragraph (c) of this section.
(e) Referrals and consultations. If the component’s FOIA office determines that records retrieved as responsive to the request were created by another Department, agency, or component it ordinarily will refer the records to the originating agency for direct response to the requester. If the agency determines that records retrieved as responsive to the request are of interest to another agency, it may consult with the other agency before responding to the request. The component’s FOIA office may make agreements with other agencies to eliminate the need for consultations or referrals for particular types of records.
(f) Records relating to civil actions. Nothing in this subpart entitles an individual to access to any information compiled in reasonable anticipation of a civil action or proceeding.
(g) Time limits. The component’s FOIA office will acknowledge the request promptly and furnish the requested information as soon as possible thereafter.
§ 212.21 Request to amend or correct records.
(a) An individual has the right to request that the component’s FOIA office amend a record pertaining to the individual that the individual believes is not accurate, relevant, timely, or complete.
(b) Requests to amend records must be in writing to the component’s FOIA office, and mailed or delivered to the Bureau for Management, Office of Management Services, Information and Records Division (for non-OIG records), or the Office of the USAID Inspector General (for OIG records) at the addresses given in § 212.5, with ATTENTION: PRIVACY ACT AMENDMENT REQUEST written on the envelope. The component’s FOIA office will coordinate the review of the request with the appropriate offices of the Agency. The component’s FOIA office will require verification of personal identity before it will initiate action to amend a record. Amendment requests should contain, at a minimum, identifying information needed to locate the record in question, a description of the specific correction requested, and an explanation of why the existing record is not accurate, relevant, timely, or complete. The request must be signed, and the requester’s signature must be either notarized or made under penalty of perjury pursuant to 28 U.S.C. 1746. The requester should submit as much pertinent documentation, other information, and explanation as possible to support the request for amendment.
(c) All requests for amendments to records shall be acknowledged within 10 working days.
(d) In reviewing a record in response to a request to amend, the Agency shall review the record to determine if it is accurate, relevant, timely, and complete.
(e) If the Agency agrees with an individual’s request to amend a record, it shall:
(1) Advise the individual in writing of its decision;
(2) Amend the record accordingly; and
(3) If an accounting of disclosure has been made, advise all previous recipients of the record of the amendment and its substance.
(f) If the Agency denies an individual’s request to amend a record, it shall advise the individual in writing of its decision and the reason for the refusal, and the procedures for the individual to request further review. See § 171.25 of this chapter.
§ 212.22 Request for accounting of record disclosures.
(a) How made. Except where accountings of disclosures are not required to be kept, as set forth in paragraph (b) of this section, or where accountings of disclosures do not need to be provided to a requesting individual pursuant to 5 U.S.C. 552a(c)(3), an individual has a right to request an accounting of any disclosure that the component’s FOIA office has made to another person, organization, or agency of any record about an individual. This accounting shall contain the date, nature, and purpose of each disclosure as well as the name and address of the recipient of the disclosure. Any request for accounting should identify each particular record in question and may be made by writing directly to the Appeals Officer, Bureau for Management, Office of Management Services at the address given in § 212.19.
(b) Where accountings are not required. The component’s FOIA office is not required to keep an accounting of disclosures in the case of:
(1) Disclosures made to employees within the Agency who have a need for the record in the performance of their duties; and
(2) Disclosures required under the FOIA.
§ 212.23 Appeals from denials of PA amendment requests.
(a) If the component’s FOIA office denies a request for amendment of such records, the requester shall be informed of the reason for the denial and of the right to appeal the denial to the Appeals Review Panel. Any such appeal must be postmarked within 60 working days of the date of the component FOIA office’s denial letter and sent to: Appeals Officer, Bureau for Management, Office of Management Services (for non-OIG records), and Deputy Inspector General, Office of Inspector General (for OIG records) at the addresses given in § 212.11.
(b) Appellants should submit an administrative appeal of any denial, in whole or in part, of a request for access to the PA at the above address. The component’s FOIA office will assign a tracking number to the appeal.
(c) The Appeals Review Panel will decide appeals from denials of PA amendment requests within 30 business days, unless the Panel extends that period for good cause shown, from the date when it is received by the Panel.
(d) Appeals Review Panel decisions will be made in writing, and appellants will receive notification of the decision. A reversal will result in reprocessing of the request in accordance with that decision. An affirmance will include a brief statement of the reason for the affirmance and will inform the appellant that the decision of the Panel represents the final decision of the Agency and of the right to seek judicial review of the Panel’s decision, when applicable.
(e) If the Panel’s decision is that a record shall be amended in accordance with the appellant’s request, the Chairman – USAID’S FOIA Liaison Officer or their designee shall direct the office responsible for the record to amend the record, advise all previous recipients of the record of the amendment and its substance (if an accounting of previous disclosures has been made), and so advise the individual in writing.
(f) If the Panel’s decision is that the amendment request is denied, in addition to the notification required by paragraph (d) of this section, the Chairman – USAID’S FOIA Liaison Officer or their designee-shall advise the appellant:
(1) Of the right to file a concise Statement of Disagreement stating the reasons for disagreement with the decision of the Agency;
(2) Of the procedures for filing the Statement of Disagreement;
(3) That any Statement of Disagreement that is filed will be made available to anyone to whom the record is subsequently disclosed, together with, at the discretion of the Agency, a brief statement by the component’s FOIA office summarizing its reasons for refusing to amend the record;
(4) That prior recipients of the disputed record will be provided a copy of any statement of disagreement, to the extent that an accounting of disclosures was maintained.
(g) If the appellant files a Statement of Disagreement under paragraph (f) of this section, the component’s FOIA office will clearly annotate the record so that the fact that the record is disputed is apparent to anyone who may subsequently access the record. When the disputed record is subsequently disclosed, the component’s FOIA office will note the dispute and provide a copy of the Statement of Disagreement. The component’s FOIA office may also include a brief summary of the reasons for not amending the record. Copies of the component FOIA office’s statement shall be treated as part of the individual’s record for granting access; however, it will not be subject to amendment by an individual under this part.
§ 212.24 Specific exemptions.
(a) Pursuant to 5 U.S.C. 552a(k), the Director or the Administrator may, where there is a compelling reason to do so, exempt a system of records, from any of the provisions of subsections (c)(3); (d); (e)(1); (e)(4) (G), (H), and (I); and (f) of the Act if a system of records is:
(1) Subject to the provisions of 5 U.S.C. 552(b)(1); (2) Investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of the Act: Provided, however, that if any individual is denied any right, privilege, or benefit to which he or she would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;
(2) Maintained in connection with providing protective services to the President of the United States or other individuals pursuant to 18 U.S.C. 3056;
(3) Required by statute to be maintained and used solely as statistical records;
(4) Investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;
(5) Testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service, the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or
(6) Evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.
(b) Each notice of a system of records that is the subject of an exemption under 5 U.S.C. 552a(k) will include a statement that the system has been exempted, the reasons therefore, and a reference to the
(c) The systems of records to be exempted under section (k) of the Act, the provisions of the Act from which they are being exempted, and the justification for the exemptions, are set forth in paragraphs (c)(1) through (3) of this section:
(1) Criminal Law Enforcement Records. If the 5 U.S.C. 552a(j)(2) exemption claimed under § 215.13(c) of this chapter and on the notice of systems of records to be published in the
(2) Personnel Security and Suitability Investigatory Records. This system is exempt under U.S.C. 552a(k)(1), (2), and (5) from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G) through (I), and (f). These exemptions are claimed to protect the materials required by executive order to be kept secret in the interest of national defense or foreign policy, to prevent subjects of investigation from frustrating the investigatory process, to insure the proper functioning and integrity of law enforcement activities, to prevent disclosure of investigative techniques, to maintain the ability to obtain candid and necessary information, to fulfill commitments made to sources to protect the confidentiality of information, to avoid endangering those sources and, ultimately, to facilitate proper selection or continuance of the best applicants or persons for a given position or contract. Special note is made of the limitation on the extent to which this exemption may be asserted.
(3) Litigation Records. This system is exempt under 5 U.S.C. 552(k)(1), (2), and (5) from the provisions of 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G) through (I), and (f). These exemptions are claimed to protect the materials required by executive order to be kept secret in the interest of national defense or foreign policy, to prevent subjects of investigation from frustrating the investigatory process, to insure the proper functioning and integrity of law enforcement activities, to prevent disclosure of investigative techniques, to maintain the ability to obtain candid and necessary information, to fulfill commitments made to sources to protect the confidentiality of information.
PART 213 – CLAIMS COLLECTION
Subpart A – General Provisions
§ 213.1 Purpose and scope.
(a) Purpose. This part prescribes standards and procedures for the collection and disposal of claims due to the United States from the U.S. Agency for International Development (USAID). This part covers USAID’s administrative actions to collect claims/debts (including administrative and salary offsets; compromise; suspension or termination of collection actions; transfer and/or referral of claims to the U.S. Departments of the Treasury and Justice). The terms “claim” and “debt” are synonymous and interchangeable. They refer to an amount of money, funds, or property that an appropriate USAID official has determined to be due to the United States from any person, organization, or entity except another Federal Department or Agency.
(b) Scope. The standards and procedures in this part are applicable to all claims and debts for which a statute, regulation, or contract does not prescribe different standards or procedures.
(c) Applicability. This part does not apply to USAID:
(1) Claims arising out of loans for which compromise and collection authority is conferred by section 635(g)(2) of the Foreign Assistance Act of 1961, as amended;
(2) Claims arising from investment guaranty operations for which settlement and arbitration authority is conferred by section 635(l) of the Foreign Assistance Act of 1961, as amended;
(3) Claims against any foreign country or any political subdivision thereof, or any public international organization;
(4) Claims where the Chief Financial Officer (CFO) determines that the achievement of the purposes of the Foreign Assistance Act of 1961, as amended, or any other provision of law administered by USAID require a different course of action;
(5) Claims owed USAID by other Federal Departments and Agencies. Such debts will be resolved by negotiation between the Departments/Agencies; and
(6) Claims that appear to be fraudulent, false, or misrepresented by a party with an interest in the claim except to the extent provided in § 213.4.
§ 213.2 Definitions.
(a) Administrative offset means the withholding of money payable by the United States to, or held by the United States for, a person to satisfy a debt the person owes the Government.
(b) Administrative wage garnishment means the process by which federal agencies require a private sector employer to withhold up to 15% of an employee’s disposable pay to satisfy a delinquent debt owed to the federal government. A court order is not required.
(c) Agency means the United States Agency for International Development (USAID).
(d) Claim (or Debt) means an amount of money, funds, or property that a USAID official has determined to be due the United States from any person, organization, or entity, except another Federal Department or Agency. As used in this part, the terms “debt” and “claim” are synonymous and interchangeable.
(e) CFO means the Chief Financial Officer of USAID or a USAID official delegated by the CFO to act on the CFO’s behalf.
(f) Compromise means that the creditor Agency accepts less than the full amount of an outstanding debt in full satisfaction of the entire amount of the debt.
(g) Creditor Agency means the Federal Department or Agency to which the debt is owed, including a debt-collection center when acting on behalf of a creditor Agency in matters pertaining to the collection of a debt.
(h) Debtor means an individual, organization, association, corporation, or a State or local government indebted to the United States, or a person or entity with legal responsibility for assuming the debtor’s obligation.
(i) Delinquent debt means any debt that is past due and is legally enforceable. A debt is past due if it has not been paid by the date specified in the Agency’s initial written demand for payment notice or applicable agreement or instrument (including a postdelinquency payment agreement) unless the parties involved have made other satisfactory payment arrangements.
(j) Discharge of indebtedness means the release of a debtor from personal liability for a debt. Further collection action is prohibited.
(k) Disposable pay means that part of current basic pay, special pay, incentive pay, retired pay, retainer pay, or, in the case of an employee not entitled to basic pay, other authorized pay, which remains after the deduction of any amount required by law to be withheld (other than deductions to execute garnishment orders) in accordance with 5 CFR parts 581 and 582. Among the legally required deductions that must be applied first to determine disposable pay are levies pursuant to the Internal Revenue Code (title 26 of the United States Code) and deductions described in 5 CFR 581.105(b) through (f). These deductions include, but are not limited to, Social Security withholdings; Federal, State, and local tax withholdings; health-insurance premiums; retirement contributions; and life-insurance premiums.
(l) Employee means a current U.S. Direct-Hire employee of the Federal Government, including a current member of the Armed Forces or a Reserve of the Armed Forces.
(m) Employee salary offset means the administrative collection of a debt by deductions at one or more officially established pay intervals from the current pay account of an employee without the employee’s consent.
(n) Person means an individual, firm, partnership, corporation, association, and, except for purposes of administrative offsets under subpart C of this part and interest, penalties, and administrative costs under subpart B of this part, includes State and local governments and Indian tribes and components of tribal governments.
(o) Recoupment is a special method for adjusting debts that arise under the same transaction or occurrence. For example, obligations that arise under the same contract generally are subject to recoupment.
(p) Suspension means the temporary cessation of active debt collection pending the occurrence of an anticipated event.
(q) Termination means the cessation of all active debt-collection action for the foreseeable future.
(r) Waiver means the decision to forgo the collection of a debt owed to the United States, as provided for by a specific statute and according to the standards set out under that statute.
(s) Withholding order means any order for the withholding or garnishment of pay issued by USAID or a judicial or administrative body. For the purposes of this part, “wage garnishment order” and “garnishment order” have the same meaning as “withholding order.”
§ 213.3 Other remedies.
(a) This part does not supersede or require the omission or duplication of administrative proceedings required by contract, statute, or regulation (e.g., resolution of audit findings under grants or contracts; or appeal provisions under grants or contracts).
(b) The remedies and sanctions available to the Agency under this part for collecting debts are not intended to be exclusive. The Agency may impose, where authorized, other appropriate sanctions upon a debtor for inexcusable, prolonged or repeated failure to pay a debt. For example, the Agency may stop doing business with a grantee, contractor, borrower or lender; convert the method of payment under a grant or contract from an advance payment to a reimbursement method; or revoke a grantee’s or contractor’s letter-of-credit.
§ 213.4 Fraud claims.
(a) The CFO will refer a claim that appears to be fraudulent, false, or misrepresented by a party that has an interest in the claim to the USAID Office of Inspector General (OIG). The OIG has the responsibility for investigating or referring the matter, where appropriate, to the U.S. Department of Justice (DOJ). The OIG has the responsibility to provide the results of the investigation on a timely basis to the CFO for any further action.
(b) The CFO will not administratively compromise, terminate, or suspend collection action, or otherwise dispose of a claim that appears to be fraudulent, false, or misrepresented by a party that has an interest in the claim, without the approval of DOJ.
USAID will not subdivide a claim to avoid the $100,000 limit on the Agency’s authority to compromise a claim, suspend collection action on a claim, or terminate collection action on a claim. A debtor’s liability that arises from a particular transaction or contract is a single claim.
§ 213.6 Omission not a defense.
Failure by USAID to comply with any provision of this part is not available to a debtor as a defense against payment of a debt.
Subpart B – Collection Actions
§ 213.7 Collection – general.
(a) The CFO takes action to collect all debts owed the United States that arise out of USAID’s activities, and to reduce debt delinquencies. Collection actions may include sending at least one written demand for payment notice to the debtor’s last-known address provided in the records of USAID. Other appropriate action may proceed the written demand for payment notice, including immediate referral to DOJ for litigation, when such action is necessary to protect the Federal Government’s interest.
(b) The CFO maintains an administrative file for each debt and/or debtor which documents the basis for the debt, all administrative collection actions regarding the debt (including communications to and from the debtor) and its final disposition. Information on an individual may be disclosed only for purposes that are consistent with this part, the Privacy Act of 1974 and other applicable law.
§ 213.8 Written demand for payment notice.
(a) When an Agency official determines that a debt is owed to USAID, the Agency sends a written demand for payment notice to the debtor. Unless otherwise provided by agreement, contract, or order, the written demand for payment notice informs the debtor of:
(1) The amount, nature and basis of the debt;
(2) The right of the debtor to inspect and copy records related to the debt;
(3) The right of the debtor to discuss and propose a repayment agreement;
(4) Any rights available to the debtor to review the debt, or to have recovery of the debt waived (by citing the available review or waiver authority, the conditions for review or waiver, and the effects of the review or waiver request on the collection of the debt);
(5) The date on which debt payment is due, which will be not more than 30 days from the date the written demand for-payment notice is mailed or hand delivered;
(6) The instructions for making electronic payment;
(7) The debt is considered delinquent if it is not paid on the due date provided in the initial written demand-of payment notice;
(8) The imposition of interest charges, penalties, and administrative costs that USAID may assess against a delinquent debt, and the date when such charges apply;
(9) The intention of USAID to use non-centralized administrative offset to collect the debt if appropriate and, if not, the referral of the debt 90 days after the Bill for Collection or demand letter to the Financial Management Service in the Department of Treasury who will collect their administrative costs from the debtor in addition to the amount owed USAID and use all means available to the Federal Government for debt collection including administrative wage garnishment, use of collection agencies and reporting the indebtedness to a credit reporting bureau (see § 213.14);
(10) The Agency will refer delinquent debt unpaid at 90 days from the initial written demand for payment notice to the Bureau of the Fiscal Service (Fiscal Service) within the U.S. Department of the Treasury. Statute requires the referral of delinquent debt to Fiscal Service no later than 120 days from the initial written demand-for-payment notice. Fiscal Service will use means available to the Federal Government for collecting a debt, including administrative wage-garnishment, the use of collection agencies, and reporting the indebtedness to a credit-reporting bureau (see § 213.15);
(11) The address, telephone number, and name of the person available to discuss the debt; and
(12) The possibility of referral to DOJ for litigation if USAID cannot collect the debt administratively.
(b) USAID will respond promptly to written communications from the debtor, generally within 30 days of receipt of such a communication.
§ 213.9 Agency review requirements.
(a) For purposes of this section, whenever USAID must afford a debtor a review within the Agency, USAID shall provide the debtor with a reasonable opportunity for a review when the debtor requests reconsideration of the debt in question. The review may include the examination of documents, internal discussions with relevant officials, and discussion by letter or orally with the debtor, at USAID’s discretion. For the offset of current Federal salary under 5 U.S.C. 5514 for certain debts, an employee may request an outside hearing. See §§ 213.21 and 213.22 when USAID is the creditor Agency.
(b) Unless otherwise required by law, an oral hearing under this section is not required to be a formal evidentiary hearing, although USAID will carefully document all significant matters discussed at the hearing.
(c) This section does not require an oral hearing with respect to debt collection in which the agency has determined that review of the written record is an adequate means to correct a prior mistake.
(d) In those cases when an oral hearing is not required by this section, USAID shall accord the debtor a “paper hearing,” that is, a determination of the request for reconsideration based upon a review of the written record.
(e) If, after review, USAID either sustains or amends its determination, it shall notify the debtor of its intent to collect the sustained or amended debt. The notification to collect the sustained or amended debt will include accrued interest on the sustained or amended debt, calculated from the date of delinquency. If USAID has suspended collection actions previously, it will reinstitute them unless it receives payment of the sustained or amended amount, or the debtor has made a proposal for a payment plan to which the Agency agrees, by the date specified in the notification of USAID’s decision.
§ 213.10 Aggressive collection actions; documentation.
(a) USAID takes actions and effective follow-up on a timely basis to collect all claims of the United States for money and property arising out of USAID’s activities. USAID cooperates with other Federal agencies in their debt collection activities.
(b) USAID documents all administrative collection actions in the claim file, along with the basis for any compromise, termination, or suspension of collection actions. USAID retains this documentation, which may include the Claims-Collection Litigation Report (CCLR) provided in § 213.24, in the appropriate debt file.
§ 213.11 Interest, penalties, and administrative costs.
(a) Interest. USAID will assess interest on all delinquent debts unless prohibited by statute, regulation or contract.
(1) Interest begins to accrue on all delinquent debts starting from the day after the payment due date established in the initial written demand-for payment notice to the debtor. USAID will assess an annual rate of interest that is equal to the U.S. Department of the Treasury Current Value of Funds Rate (CVFR) unless a different rate is necessary to protect the interest of the Federal Government. USAID will notify the debtor of the basis for its finding that a different rate is necessary to protect the interest of the Government.
(2) The rate of interest, as initially assessed, remains fixed for the duration of the indebtedness. If a debtor defaults on a repayment agreement, interest may be set at the Treasury rate in effect on the date a new agreement is executed.
(3) Interest will not be assessed on interest charges, administrative costs or late payment penalties. However, where a debtor defaults on a previous repayment agreement and interest, administrative costs and penalties charges have been waived under the defaulted agreement, these charges can be reinstated and added to the debt principal under any new agreement and interest charged on the entire amount of the debt.
(b) Administrative costs of collecting overdue debts. The costs of the Agency’s administrative handling of overdue debts including charges assessed by Treasury in cross-servicing USAID debts, based on either actual or average cost incurred, will be charged on all debts except those owed by State and local governments and Indian tribes. These costs include both direct and indirect costs.
(c) Penalties. As provided by 31 U.S.C. 3717(e)(2), a penalty charge will be assessed on all debts, except those owned by State and local governments and Indian tribes, more than 90 days delinquent. The penalty charge will be at a rate not to exceed 6% per annum and will be assessed monthly.
(d) Allocation of payments. A partial payment by a debtor will be applied first to outstanding administrative costs, second to penalty assessments, third to accrued interest and then to the outstanding debt principal.
(e) Waivers for the collection of interest, penalties, and administrative costs. (1) The CFO will waive the collection of interest and administrative charges on the portion of the debt paid within 30 days after the date on which interest begins to accrue. The CFO may extend this 30-day period, on a case-by case basis, when he or she determines that such action is in the best interest of the Federal Government. A decision to extend or not to extend the payment period is final, and is not subject to further review.
(2) The CFO may (without regard to the amount of the debt) waive the collection of all or part of accrued interest, penalties, or administrative costs, when he or she determines that –
(i) A waiver is justified under the standards for the compromise of claims under § 213.25; or
(ii) Collection of these charges would be against equity and good conscience, or is not in the best interest of the United States.
(3) The CFO may make a decision to waive interest, penalties, or administrative costs at any time.
§ 213.12 Interest, penalties, and administrative costs pending consideration of debt waiver or review.
Interest, penalties, and administrative costs will continue to accrue on a debt during a review by USAID and during a waiver of indebtedness consideration by the Agency; except that USAID will not assess interest, penalties, and administrative costs where a statute or a regulation specifically prohibits the collection of the debt during the period of the Agency’s review or consideration of a debt waiver.
§ 213.13 Waivers of indebtedness.
The CFO may grant waivers of indebtedness for certain types of debt identified in Federal statutes under the following waiver authorities:
(a) Waiver authorities – (1) Debts that arise out of erroneous payments of pay and allowances, and of travel, transportation, and relocation expenses and allowances. Title 5 U.S.C. 5584 provides the authority for waiving, in whole or in part, debts that arise out of erroneous payments of pay or allowances, travel, transportation, or relocation expenses and allowances to an employee of USAID, if collection would be against equity and good conscience, or not in the best interests of the United States:
(i) The CFO may not grant a waiver if there exists in connection with the claim an indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person who has an interest in obtaining a waiver.
(ii) Fault is considered to exist if, in light of the circumstances, the employee knew, or should have known through the exercise of due diligence, that an error existed, but he or she failed to take corrective action. What an employee should have known is evaluated under a reasonable-person standard. However, employees are expected to have a general understanding of the Federal pay system applicable to them.
(iii) An employee with notice that a payment might be erroneous is expected to make provisions for eventual repayment. Financial hardship is not a basis for granting a waiver for an employee who was on notice of an erroneous payment.
(iv) If the deciding official finds no indication of fraud, misrepresentation, fault, or lack of good faith on the part of the employee or any other person who has an interest in obtaining a waiver of the claim, the employee is not automatically entitled to a waiver. Before granting a waiver, the deciding official also must determine that collection of the claim against an employee would be against equity and good conscience, or not in the best interests of the United States. Factors to consider when determining if collection of a claim against an employee would be against equity and good conscience, or not in the best interests of the United States, include, but are not limited to, the following:
(A) Whether collection of the claim would cause serious financial hardship to the employee from whom the Agency seeks collection;
(B) Whether, because of the erroneous payment, the employee either has relinquished a valuable right or changed positions for the worse, regardless of his or her financial circumstances;
(C) The time elapsed between the erroneous payment and the discovery of the error and notification of the employee;
(D) Whether failure to make restitution would result in unfair gain to the employee; and
(E) Whether recovery of the claim would be unconscionable under the circumstances.
(2) Debts that arise out of advances in pay (5 U.S.C. 5524a); situations of Authorized or Ordered Departures (5 U.S.C. 5522); or allowances and differentials for employees stationed abroad (5 U.S.C. 5922). Title 5 U.S.C. 5524a, 5522, or 5922 provide authority for waiving, in whole or in part, a debt that arises out of such an advance payment if it is shown that recovery would be against equity and good conscience, or against the public interest:
(i) Factors to consider when determining if recovery of an advance payment would be against equity and good conscience, or against the public interest, include, but are not limited to, the following:
(A) Death of the employee;
(B) Retirement of the employee for disability;
(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and
(D) Whether failure to repay would result in unfair gain to the employee.
(ii) [Reserved]
(3) Debts that arise out of employee training expenses. Title 5 U.S.C. 4108 provides the authority for waiving, in whole or in part, a debt that arises out of employee training expenses if it is shown that recovery would be against equity and good conscience, or against the public interest:
(i) Factors to consider when determining if recovery of a debt that arises out of employee training expenses would be against equity and good conscience, or against the public interest, include, but are not limited to, the following:
(A) Death of the employee;
(B) Retirement of the employee for disability;
(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and
(D) Whether failure to repay would result in unfair gain to the employee.
(ii) [Reserved]
(4) Under-withholding of life insurance premiums. Title 5 U.S.C. 8707(d) provides the authority for waiving the collection of unpaid deductions that result from the underwithholding of premiums under the Federal Employees’ Group Life Insurance Program if the individual is without fault and recovery would be against equity and good conscience, or against the public interest:
(i) Fault is considered to exist if, in light of the circumstances, the employee knew, or should have known through the exercise of due diligence, that an error existed, but he or she failed to take corrective action:
(ii) Factors to consider when determining whether the recovery of unpaid deduction that results from under-withholding would be against equity and good conscience, or against the public interest, include, but are not limited to, the following:
(A) Whether collection of the claim would cause serious financial hardship to the individual from whom the Agency seeks collection;
(B) The time elapsed between the failure to withhold properly and the discovery of the failure and notification of the individual;
(C) Whether failure to make restitution would result in unfair gain to the individual; and
(D) Whether recovery of the claim would be unconscionable under the circumstances.
(5) Student-Loan Repayment Program service agreements. Title 5 U.S.C. 5379 provides for waiving, in whole or in part, debt that arises from the Student Loan Repayment Program if it is shown that recovery would be against equity and good conscience, or against the public interest:
(i) Factors to consider when determining if recovery of a debt that arises out of the Student-Loan Repayment Program would be against equity and good conscience, or against the public interest, include, but are not limited to, the following:
(A) Death of the employee;
(B) Retirement of the employee for disability;
(C) Inability of the employee to return to duty because of disability (supported by an acceptable medical certificate); and
(D) Whether failure to repay would result in unfair gain to the employee.
(ii) [Reserved]
(b) [Reserved]
§ 213.14 Contracting for collection services.
USAID has entered into a cross-servicing agreement with the Bureau of the Fiscal Service (Fiscal Service) of the U.S. Department of the Treasury. Fiscal Service is authorized to take all appropriate action to enforce the collection of accounts referred to it in accordance with applicable statutory and regulatory requirements. Fiscal Service bases any applicable fees on the funds collected, and will collect such fees from the debtor along with the original amount of the indebtedness. After referral, Fiscal Service will be solely responsible for the maintenance of the delinquent debtor records in its possession, and for updating the accounts as necessary. Fiscal Service may take any of the following collection actions on USAID’s behalf:
(a) Send demand letters on U. S. Treasury letterhead and telephone debtors;
(b) Refer accounts to credit bureaus;
(c) Skiptracing;
(d) Purchase credit reports to assist in the collection effort;
(e) Refer accounts for offset, including tax refund, Federal employee salary, administrative wage garnishment, and general administrative offset under the Treasury Offset Program.
(f) Refer accounts to private collection agencies;
(g) Refer accounts to DOJ for litigation;
(h) Report written off/discharged debts to IRS on the appropriate Form 1099;
(i) Take any additional steps necessary to enforce recovery; and
(j) Terminate collection action, as appropriate.
§ 213.15 Use of credit-reporting bureaus.
USAID reports delinquent debts owed to it to appropriate credit-reporting bureaus through the cross-servicing agreement with the Bureau of the Fiscal Service (Fiscal Service) at the U.S. Department of the Treasury.
(a) The following information is provided to the credit reporting bureaus:
(1) A statement that the claim is valid and is overdue;
(2) The name, address, taxpayer identification number and any other information necessary to establish the identity of the debtor;
(3) The amount, status and history of the debt; and
(4) The program or pertinent activity under which the debt arose.
(b) Before referring claims to Fiscal Service and disclosing debt information to credit-reporting bureaus, USAID will have done the following:
(1) Taken reasonable action to locate the debtor if a current address is not available; and
(2) If a current address is available, notified the debtor in writing that:
(i) The designated USAID official has reviewed the claim and has determined that it is valid and overdue;
(ii) If the debtor does not pay the debt 90 days after receiving the initial written demand-for-payment notice, USAID intends to refer the debt to Fiscal Service and disclose to a credit-reporting agency the information authorized for disclosure by this subpart; and
(iii) The debtor can request an Agency review or waiver, where applicable.
(c) Before submitting information to a credit-reporting bureau, USAID will provide a written statement to Fiscal Service that the Agency has taken all required actions. Additionally, Fiscal Service thereafter will update the accounts as necessary during the period it holds the account information.
§ 213.16 Use and disclosure of mailing addresses.
(a) When attempting to locate a debtor in order to collect or compromise a debt, the CFO may obtain a debtor’s current mailing address from the Internal Revenue Service.
(b) Addresses obtained from the Internal Revenue Service will be used by the Agency, its officers, employees, agents or contractors and other Federal agencies only to collect or dispose of debts, and may be disclosed to other agencies and to collection agencies only for collection purposes.
§ 213.17 Liquidation of collateral.
Where the CFO holds a security instrument with a power of sale or has physical possession of collateral, he or she may liquidate the security or collateral and apply the proceeds to the overdue debt. USAID will exercise this right where the debtor fails to pay within a reasonable time after demand, unless the cost of disposing of the collateral is disproportionate to its value or special circumstances require judicial foreclosure. However, collection from other businesses, including liquidation of security or collateral, is not a prerequisite to requiring payment by a surety or insurance company unless expressly required by contract or statute. The CFO will give the debtor reasonable notice of the sale and an accounting of any surplus proceeds and will comply with any other requirements of law or contract.
§ 213.18 Suspension or revocation of eligibility for loans and loan guarantees, licenses or privileges.
Unless waived by the CFO, USAID will not extend financial assistance in the form of a loan or loan guarantee to any person delinquent on a nontax debt owed to a Federal agency. USAID may also suspend or revoke licenses or other privileges for any inexcusable, prolonged or repeated failure of a debtor to pay a claim. Additionally, the CFO may suspend or disqualify any contractor, lender, broker, borrower, grantee or other debtor from doing business with USAID or engaging in programs USAID sponsors or funds if a debtor fails to pay its debts to the Government within a reasonable time. Debtors will be notified before such action is taken and applicable suspension or debarment procedures will be used. The CFO will report the failure of any surety to honor its obligations to the Treasury Department for action under 31 CFR 332.18.