45 CFR Parts 160 & 164 (CFR Annual Edition) , (ii) For disclosures made with the written consent of the subject indi- vidual. (2) The accounting will include: (i) The date, nature, and purpose of each disclosure; and (ii) The name and address of the per- son or entity to whom the disclosure is made. (3) Any subject individual may re- quest access to an accounting of disclo- sures of a record. The subject indi- vidual shall make a request for access to an accounting in accordance with the procedures in § 5b.5 of this part. A subject individual will be granted ac- cess to an accounting of the disclosures of a record in accordance with the pro- cedures of this part which govern ac- cess to the related record. Access to an accounting of a disclosure of a record made under paragraph (b)(7) of this sec- tion may be granted at the discretion of the responsible Department official. § 5b.10 Parents and guardians. For the purpose of this part, a parent or guardian of any minor or the legal guardian or any individual who has been declared incompetent due to phys- ical or mental incapacity or age by a court of competent jurisdiction is au- thorized to act on behalf of an indi- vidual or a subject individual. Except as provided in paragr incompetent due to phys- ical or mental incapacity or age by a court of competent jurisdiction is au- thorized to act on behalf of an indi- vidual or a subject individual. Except as provided in paragraph (b)(2) of § 5b.5, of this part governing procedures for verifying an individual’s identity, and paragraph (c) (2) of § 5b.6 of this part governing special procedures for notifi- cation of or access to a minor’s medical records, an individual authorized to act on behalf of a minor or legal incom- petent will be viewed as if he were the individual or subject individual. § 5b.11 Exempt systems. (a) General policy. The Act permits certain types of specific systems of records to be exempt from some of its requirements. It is the policy of the Department to exercise authority to exempt systems of records only in com- pelling cases. 42 Dept. of Health and Human Services § 5b.11 (b) Specific systems of records exempted. (1) Those systems of records listed in paragraph (b)(2) of this section are ex- empt from the following provisions of the Act and this part: (i) 5 U.S.C. 552a(c)(3) and paragraph (c)(2) of § 5b.9 of this part which require a subject individual to be granted ac- cess to an a e ex- empt from the following provisions of the Act and this part: (i) 5 U.S.C. 552a(c)(3) and paragraph (c)(2) of § 5b.9 of this part which require a subject individual to be granted ac- cess to an accounting of disclosures of a record. (ii) 5 U.S.C. 552a(d) (1) through (4) and (f) and §§ 5b.6, 5b.7, and 5b.8 of this part relating to notification of or access to records and correction or amendment of records. (iii) 5 U.S.C. 552a(e)(4) (G) and (H) which require inclusion of information about Department procedures for noti- fication, access, and correction or amendment of records in the notice for the systems of records. (iv) 5 U.S.C. 552(e)(3) and paragraph (a)(3) of § 5b.4 of this part which require that an individual asked to provide a record to the Department be informed of the authority for providing the record (including whether the pro- viding of the record is mandatory or voluntary, the principal purposes for maintaining the record, the routine uses for the record, and what effect his refusal to provide the record may have on him), and if the record is not re- quired by statute or Executive Order to be provided by the individual, he agrees to provide the record. This exempti ct his refusal to provide the record may have on him), and if the record is not re- quired by statute or Executive Order to be provided by the individual, he agrees to provide the record. This exemption applies only to an investigatory record compiled by the Department for crimi- nal law enforcement purposes in a sys- tem of records exempt under sub- section (j)(2) of the Act to the extent that these requirements would preju- dice the conduct of the investigation. (2) The following systems of records are exempt from those provisions of the Act and this part listed in para- graph (b) (1) of this section. (B) The Criminal Investigations File, HHS/SSA; and, (C) The Program Integrity Case Files, HHS/SSA. (D) Civil and Administrative Inves- tigative Files of the Inspector General, HHS/OS/OIG. (E) Complaint Files and Log. HHS/ OS/OCR. (F) Investigative materials compiled for law enforcement purposes for the Healthcare Integrity and Protection Data Bank (HIPDB), of the Office of In- spector General. (See § 61.15 of this title for access and correction rights under the HIPDB by subjects of the Data Bank.) (G) Investigative materials compiled for law enforcement purposes for the Program Inf eneral. (See § 61.15 of this title for access and correction rights under the HIPDB by subjects of the Data Bank.) (G) Investigative materials compiled for law enforcement purposes for the Program Information Management System, HHS/OS/OCR. (H) Investigative materials compiled for law enforcement purposes from the CMS Fraud Investigation Database (FID), HHS/CMS. (I) Investigative materials compiled for law enforcement purposes from the Automated Survey Processing Environ- ment (ASPEN) Complaints/ Incidents Tracking System (ACTS), HHS/CMS. (J) Investigative materials compiled for law enforcement purposes from the Health Insurance Portability and Ac- countability Act (HIPAA) Information Tracking System (HITS), HHS/CMS. (K) Investigative materials compiled for law enforcement purposes from the Organ Procurement Organizations Sys- tem (OPOS), HHS/CMS. (L) Investigative materials compiled for law enforcement purposes for the National Practitioner Data Bank (NPDB). (See § 60.21 of this subchapter for access and correction rights under the NPDB by subjects of the Data Bank.) (iii) Pursuant to subsection (k)(4) of (i) Pursuant to subsection (j)(2) of the the Act: Act: (A) The Saint Elizabet pter for access and correction rights under the NPDB by subjects of the Data Bank.) (iii) Pursuant to subsection (k)(4) of (i) Pursuant to subsection (j)(2) of the the Act: Act: (A) The Saint Elizabeths Hospital’s Court-Ordered Forensic Investigatory Materials Files; and (B) The Investigatory Material Com- piled for Law Enforcement Purposes System, HHS. (ii) Pursuant to subsection (k)(2) of the Act: (A) The Health and Demographic Surveys Conduct in Random Samples of the U.S. Population; (B) The Health Manpower Inventories and Surveys; (C) The Vital Statistics for Births, Deaths, Fetal Deaths, Marriages and Divorces Occurring in the U.S. during Each Year; and, (A) The General Criminal Investiga- (D) The Maryland Psychiatric Case tion Files, HHS/SSA; Register. 43 § 5b.11 45 CFR Subtitle A (10–1–24 Edition) (E) The Health Resources Utilization (A) NIH Division of Loan Repayment Statistics, DHHS/OASH/NCHS. Record System, 09–25–0165. (F) National Medical Expenditure Survey Records. HHS/OASH/NCHSR. (iv) Pursuant to subsection (k)(5) of the Act: (A) The Investigatory Material Com- piled for Security and Suitability Pur- poses System, HHS; (B) The Suitability for Employment Records, HHS; a /NCHSR. (iv) Pursuant to subsection (k)(5) of the Act: (A) The Investigatory Material Com- piled for Security and Suitability Pur- poses System, HHS; (B) The Suitability for Employment Records, HHS; and (C) NIH Electronic Research Admin- istration (eRA) Records, HHS/NIH/OD/ OER, 09–25–0225. (v) Pursuant to subsections (j)(2), (k)(2), and (k)(5) of the Act: (A) The Clinical Investigatory Records, HHS/FDA; (B) The Regulated Industry Em- ployee Enforcement Records, HHS/ FDA; (C) The Employee Conduct Investiga- tive Records, HHS/FDA; and, (D) The Service Contractor Employee Investigative Records, HHS/FDA. (vi) Pursuant to subsection (k)(6) of the Act: (A) The Personnel Research and Merit Promotion Test Records, HHS/ SSA/OMA. (B) [Reserved] (vii) Pursuant to subsections (k)(2) and (k)(5) of the Act: (A) Public Health Service Records Related to Investigations of Scientific Misconduct, HHS/OASH/ORI. (B) Administration: Investigative Records, HHS/NIH/OM/OA/OMA. (C) FDA Records Related to Research Misconduct Proceedings, HHS/FDA/OC, 09–10–0020. (D) NIH Records Related to Research Misconduct Proceedings, HHS/NIH, 09– 25–0223. (viii)(A) HHS Insider Threat Program Records, 09–90–1701. (B) [Res rch Misconduct Proceedings, HHS/FDA/OC, 09–10–0020. (D) NIH Records Related to Research Misconduct Proceedings, HHS/NIH, 09– 25–0223. (viii)(A) HHS Insider Threat Program Records, 09–90–1701. (B) [Reserved] (3) The following systems of records are exempt from 5 U.S.C. 552a(c)(3) and § 5b.9(c)(3), which require a subject in- dividual to be granted access to an ac- counting of disclosures of a record; and from 5 U.S.C. 552a(d)(1) through (4) and §§ 5b.5, 5b.7, and 5b.8, relating to notifi- cation of or access to records and cor- rection or amendment of records. (i) Pursuant to subsection (k)(5) of the Privacy Act: (B) [Reserved] (ii) Pursuant to subsection (k)(2) of the Privacy Act: (A) OCSE Federal Case Registry of Child Support Orders (FCR), HHS/ACF/ OCSE, 09–80–0385; only records marked with the Family Violence Indicator are exempt, based on the requirements of 42 U.S.C. 653(b)(2). (B) [Reserved] (c) Notification of or access to records in exempt systems of records. (1) Where a system of records is exempt as provided in paragraph (b) of this section, any in- dividual may nonetheless request noti- fication of or access to a record in that system. An individual shall make re- quests of records is exempt as provided in paragraph (b) of this section, any in- dividual may nonetheless request noti- fication of or access to a record in that system. An individual shall make re- quests for notification of or access to a record in an exempt system of records in accordance with the procedures of §§ 5b.5 and 5b.6 of this part. (2) An individual will be granted noti- fication of or access to a record in an exempt system but only to the extent such notification or access would not reveal the identity of a source who fur- nished the record to the Department under an express promise, and prior to September 27, 1975 an implied promise, that his identity would be held in con- fidence, if: (i) The record is in a system of records which is exempt under sub- section (k)(2) of the Act and the indi- vidual has been, as a result of the maintenance of the record, denied a right, privilege, or benefit to which he would otherwise be eligible; or, (ii) The record is in a system of records which is exempt under sub- section (k)(5) of the Act. (3) If an individual is not granted no- tification of or access to a record in a system of records exempt under sub- sections (k) (2) and (5) of which is exempt under sub- section (k)(5) of the Act. (3) If an individual is not granted no- tification of or access to a record in a system of records exempt under sub- sections (k) (2) and (5) of the Act in ac- cordance with this paragraph, he will be informed that the identity of a con- fidential source would be revealed if notification of or access to the record were granted to him. (d) Discretionary actions by the respon- sible Department official. Unless disclo- sure of a record to the general public is otherwise prohibited by law, the re- sponsible Department official may in his discretion grant notification of or access to a record in a system of 44 Dept. of Health and Human Services Pt. 5b, App. A records which is exempt under para- graph (b) of this section. Discretionary notification of or access to a record in accordance with this paragraph will not be a precedent for discretionary no- tification of or access to a similar or related record and will not obligate the responsible Department official to ex- ercise his discretion to grant notifica- tion of or access to any other record in a system of records which is exempt under paragraph (b) of this section. [40 FR 47409 sible Department official to ex- ercise his discretion to grant notifica- tion of or access to any other record in a system of records which is exempt under paragraph (b) of this section. [40 FR 47409, Oct. 8, 1975] EDITORIAL NOTE: For FEDERAL REGISTER ci- tations affecting § 5b.11, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov. § 5b.12 Contractors. (a) All contracts entered into on or after September 27, 1975 which require a contractor to maintain or on behalf of the Department to maintain, a sys- tem of records to accomplish a Depart- ment function must contain a provi- sion requiring the contractor to com- ply with the Act and this part. (b) All unexpired contracts entered into prior to September 27, 1975 which require the contractor to maintain or on behalf of the Department to main- tain, a system of records to accomplish a Department function will be amended as soon as practicable to include a pro- vision requiring the contractor to com- ply with the Act and this part. All such contracts must be so amended by July 1, 1976 unless for good cause the appeal authority identified in § 5b.8 of this part sion requiring the contractor to com- ply with the Act and this part. All such contracts must be so amended by July 1, 1976 unless for good cause the appeal authority identified in § 5b.8 of this part authorizes the continuation of the contract without amendment beyond that date. (c) A contractor and any employee of such contractor shall be considered em- ployees of the Department only for the purposes of the criminal penalties of the Act, 5 U.S.C. 552a(i), and the em- ployee standards of conduct listed in appendix A of this part where the con- tract contains a provision requiring the contractor to comply with the Act and this part. (d) This section does not apply to systems of records maintained by a contractor as a result of his manage- ment discretion, e.g., the contractor’s personnel records. § 5b.13 Fees. (a) Policy. Where applicable, fees for copying records will be charged in ac- cordance with the schedule set forth in this section. Fees may only be charged where an individual requests that a copy be made of the record to which he is granted access. No fee may be charged for making a search of the sys- tem of records whether the search is manual, mechanical, or electronic. W equests that a copy be made of the record to which he is granted access. No fee may be charged for making a search of the sys- tem of records whether the search is manual, mechanical, or electronic. Where a copy of the record must be made in order to provide access to the record (e.g., computer printout where no screen reading is available), the copy will be made available to the indi- vidual without cost. Where a medical record is made available to a represent- ative designated by the individual or to a physician or health professional des- ignated by a parent or guardian under § 5b.6 of this part, no fee will be charged. (b) Fee schedule. The fee schedule for the Department is as follows: (1) Copying of records susceptible to photocopying—$.10 per page. (2) Copying records not susceptible to photocopying (e.g., punch cards or mag- netic tapes)—at actual cost to be deter- mined on a case-by-case basis. (3) No charge will be made if the total amount of copying does not ex- ceed $25. APPENDIX A TO PART 5b—EMPLOYEE STANDARDS OF CONDUCT (a) General. All employees are required to be aware of their responsibilities under the Privacy Act of 1974, 5 U.S.C. 552a. Regula- tions implementing PENDIX A TO PART 5b—EMPLOYEE STANDARDS OF CONDUCT (a) General. All employees are required to be aware of their responsibilities under the Privacy Act of 1974, 5 U.S.C. 552a. Regula- tions implementing the Act are set forth in 45 CFR 5b. Instruction on the requirements of the Act and regulation shall be provided to all new employees of the Department. In addition, supervisors shall be responsible for assuring that employees who are working with systems of records or who undertake new duties which require the use of systems of records are informed of their responsibil- ities. Supervisors shall also be responsible for assuring that all employees who work with such systems of records are periodically reminded of the requirements of the Act and are advised of any new provisions or inter- pretations of the Act. (b) Penalties. (1) All employees must guard against improper disclosure f records which are governed by the Act. Because of the seri- ous consequences of improper invasions of personal privacy, employees may be subject 45 Pt. 5b, App. A 45 CFR Subtitle A (10–1–24 Edition) to disciplinary action and criminal prosecu- tion for knowing and willful violations of the Act and regulation l privacy, employees may be subject 45 Pt. 5b, App. A 45 CFR Subtitle A (10–1–24 Edition) to disciplinary action and criminal prosecu- tion for knowing and willful violations of the Act and regulation. In addition, employees may also be subject to disciplinary action for unknowing or unwillful violations, where the employee had notice of the provisions of the Act and regulations and failed to inform himself sufficiently or to conduct himself in accordance with the requirements to avoid violations. (2) The Department may be subjected to civil liability for the following actions un- dertaken by its employees: (a) Making a determination under the Act and §§ 5b.7 and 5b.8 of the regulation not to amend an individual’s record in accordance with his request, or failing to make such re- view in conformity with those provisions; (b) Refusing to comply with an individual’s request for notification of or access to a record pertaining to hiem; (c) Failing to maintain any record per- taining to any individual with such accu- racy, relevance, timeliness, and complete- ness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities y individual with such accu- racy, relevance, timeliness, and complete- ness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or ben- efits to the individual that may be made on the basis of such a record, and consequently a determination is made which is adverse to the individual; or (d) Failing to comply with any other provi- sion of the Act or any rule promulgated thereunder, in such a way as to have an ad- verse effect on an individual. (3) An employee may be personally subject to criminal liability as set forth below and in 5 U.S.C. 552a (i): (a) Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by the Act or by rules or regulations established thereunder, and who, knowing that disclosure of the specific mate- rial is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000. (b) Any officer or employee o bited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000. (b) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements [of the Act] shall be guilty of a misdemeanor and fined not more than $5,000. (c) Rules Governing Employees Not Working With Systems of Records. Employees whose du- ties do not involve working with systems of records will not generally disclose to any one, without specific authorization from their supervisors, records pertaining to em- ployees or other individuals which by reason of their official duties are available to them. Notwithstanding the above, the following records concerning Federal employees are a matter of public record and no further au- thorization is necessary for disclosure: (1) Name and title of individual. (2) Grade classification or equivalent and annual rate of salary. (3) Position description. (4) Location of duty station, including room number and telephone number. In addition, employees shall disclose records which are listed in the Department’s Freedom of Informatio Position description. (4) Location of duty station, including room number and telephone number. In addition, employees shall disclose records which are listed in the Department’s Freedom of Information Regulation as being available to the public. Requests for other records will be referred to the responsible Department official. This does not preclude employees from discussing matters which are known to them personally, and without resort to a record, to official investigators of Federal agencies for official purposes such as suitability checks, Equal Employment Op- portunity investigations, adverse action pro- ceedings, grievance proceedings, etc. (d) Rules governing employees whose duties require use or reference to systems of records. Employees whose official duties require that they refer to, maintain, service, or otherwise deal with systems of records (hereinafter re- ferred to as ‘‘Systems Employees’’) are gov- erned by the general provisions. In addition, extra precautions are required and systems employees are held to higher standards of conduct. (1) Systems Employees shall: (a) Be informed with respect to their re- sponsibilities under the Act; (b) Be alert to possible mis equired and systems employees are held to higher standards of conduct. (1) Systems Employees shall: (a) Be informed with respect to their re- sponsibilities under the Act; (b) Be alert to possible misuses of the sys- tem and report to their supervisors any po- tential or actual use of the system which they believe is not in compliance with the Act and regulation; (c) Make a disclosure of records within the Department only to an employee who has a legitimate need to know the record in the course of his official duties; (d) Maintain records as accurately as prac- ticable. (e) Consult with a supervisor prior to tak- ing any action where they are in doubt whether such action is in conformance with the Act and regulation. (2) Systems Employees shall not: (a) Disclose in any form records from a sys- tem of records except (1) with the consent or at the request of the subject individual; or (2) where its disclosure is permitted under § 5b.9 of the regulation. (b) Permit unauthorized individuals to be present in controlled areas. Any unauthor- ized individuals observed in controlled areas shall be reported to a supervisor or to the guard force. (c) Knowingly or willfully take action which m s to be present in controlled areas. Any unauthor- ized individuals observed in controlled areas shall be reported to a supervisor or to the guard force. (c) Knowingly or willfully take action which might subject the Department to civil liability. (d) Make any arrangements for the design development, or operation of any system of records without making reasonable effort to 46 Dept. of Health and Human Services Pt. 5b, App. B provide that the system can be maintained in accordance with the Act and regulation. (e) Contracting officers. In addition to any applicable provisions set forth above, those employees whose official duties involve en- tering into contracts on behalf of the De- partment shall also be governed by the fol- lowing provisions: (1) Contracts for design, or development of systems and equipment. No contract for the design or development of a system of records, or for equipment to store, service or maintain a system of records shall be en- tered into unless the contracting officer has made reasonable effort to ensure that the product to be purchased is capable of being used without violation of the Act or regula- tion. Special attention shall be given to pro- vision of officer has made reasonable effort to ensure that the product to be purchased is capable of being used without violation of the Act or regula- tion. Special attention shall be given to pro- vision of physical safeguards. (2) Contracts for the operation of systems of records. A review by the Contracting Officer, in conjunction with other officials whom he feels appropriate, of all proposed contracts providing for the operation of systems of records shall be made prior to execution of the contracts to determine whether oper- ation of the system of records is for the pur- pose of accomplishing a Department func- tion. If a determination is made that the op- eration of the system is to accomplish a De- partment function, the contracting officer shall be responsible for including in the con- tract appropriate provisions to apply the provisions of the Act and regulation to the system, including prohibitions against im- proper release by the contractor, his employ- ees, agents, or subcontractors. (3) Other service contracts. Contracting offi- cers entering into general service contracts shall be responsible for determining the ap- propriateness of including provisions in the contract to tors. (3) Other service contracts. Contracting offi- cers entering into general service contracts shall be responsible for determining the ap- propriateness of including provisions in the contract to prevent potential misuse (inad- vertent or otherwise) by employees, agents, or subcontractors of the contractor. (f) Rules Governing Responsible Department Officials. In addition to the requirements for Systems Employees, responsible Department officials shall: (1) Respond to all requests for notification of or access, disclosure, or amendment of records in a timely fashion in accordance with the Act and regulation; (2) Make any amendment of records accu- rately and in a timely fashion; (3) Inform all persons whom the accounting records show have received copies of the record prior to the amendments of the cor- rection; and (4) Associate any statement of disagree- ment with the disputed record, and (a) Transmit a copy of the statement to all persons whom the accounting records show have received a copy of the disputed record, and (b) Transmit that statement with any fu- ture disclosure. APPENDIX B TO PART 5b—ROUTINE USES APPLICABLE TO MORE THAN ONE SYSTEM OF RECORDS MAINTAINED BY HHS ( ceived a copy of the disputed record, and (b) Transmit that statement with any fu- ture disclosure. APPENDIX B TO PART 5b—ROUTINE USES APPLICABLE TO MORE THAN ONE SYSTEM OF RECORDS MAINTAINED BY HHS (1) In the event that a system of records maintained by this agency or carry out its functions indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program stat- ute, or by regulation, rule or order issued pursuant thereto, the relevant records in the system of records may be referred, as a rou- tine use, to the appropriate agency, whether federal, or foreign, charged with the respon- sibility of investigating or prosecuting such violation or charged with enforcing or imple- menting the statute, or rule, regulation or order issued pursuant thereto. (2) Referrals may be made of assignments of research investigators and project mon- itors to specific research projects to the Smithsonian Institution to contribute to the Smithsonian Science Information Exchange, Inc. (3) In the event the Department deems it desirable or necessary, in determining whether particular records are required to be tution to contribute to the Smithsonian Science Information Exchange, Inc. (3) In the event the Department deems it desirable or necessary, in determining whether particular records are required to be disclosed under the Freedom of Information Act, disclosure may be made to the Depart- ment of Justice for the purpose of obtaining its advice. (4) A record from this system of records may be disclosed as a ‘‘routine use’’ to a fed- eral, state or local agency maintaining civil, criminal or other relevant enforcement records or other pertinent records, such as current licenses, if necessary to obtain a record relevant to an agency decision con- cerning the hiring or retention of an em- ployee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit. A record from this system of records may be disclosed to a Federal agency, in response to its request, in connection with the hiring or retention of an employee, the issuance of a security clearance, the reporting of an in- vestigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the curity clearance, the reporting of an in- vestigation of an employee, the letting of a contract, or the issuance of a license, grant, or other benefit by the requesting agency, to the extent that the record is relevant and necessary to the requesting agency’s deci- sion on the matter. (5) In the event that a system of records maintained by this agency to carry out its function indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program stat- ute, or by regulation, rule or order issued pursuant thereto, the relevant records in the system of records may be referred, as a rou- tine use, to the appropriate agency, whether state or local charged with the responsibility 47 Pt. 7 45 CFR Subtitle A (10–1–24 Edition) of investigating or prosecuting such viola- tion or charged with enforcing or imple- menting the statute, or rule, regulation or order issued pursuant thereto. (6) Where Federal agencies having the power to subpoena other Federal agencies’ records, such as the Internal Revenue Serv- ice or the Civil Rights Commission, issue a subpoena to the Department for records in this syst gencies having the power to subpoena other Federal agencies’ records, such as the Internal Revenue Serv- ice or the Civil Rights Commission, issue a subpoena to the Department for records in this system of records, the Department will make such records available. (7) Where a contract between a component of the Department and a labor organization recognized under E.O. 11491 provides that the agency will disclose personal records rel- evant to the organization’s mission, records in this system of records may be disclosed to such organization. (8) Where the appropriate official of the Department, pursuant to the Department’s Freedom of Information Regulation deter- mines that it is in the public interest to dis- close a record which is otherwise exempt from mandatory disclosure, disclosure may be made from this system of records. (9) The Department contemplates that it will contract with a private firm for the pur- pose of collating, analyzing, aggregating or otherwise refining records in this system. Relevant records will be disclosed to such a contractor. The contractor shall be required to maintain Privacy Act safeguards with re- spect to such records. (10)–(99) [Reserved] (100) To this system. Relevant records will be disclosed to such a contractor. The contractor shall be required to maintain Privacy Act safeguards with re- spect to such records. (10)–(99) [Reserved] (100) To the Department of Justice or other appropriate Federal agencies in defending claims against the United States when the claim is based upon an individual’s mental or physical condition and is alleged to have arisen because of activities of the Public Health Service in connection with such indi- vidual. (101) To individuals and organizations, deemed qualified by the Secretary to carry out specific research solely for the purpose of carrying out such research. (102) To organizations deemed qualified by the Secretary to carry out quality assess- ment, medical audits or utilization review. (103) Disclosures in the course of employee discipline or competence determination pro- ceedings. APPENDIX C TO PART 5b—DELEGATIONS OF AUTHORITY [RESERVED] PART 6 [RESERVED] 7.7 Notice to employee of determination. 7.8 Employee’s right of appeal. AUTHORITY: Reorg. Plan No. 1 of 1953, 18 FR 2053; 3 CFR 1953 Supp. E.O. 10096, 15 FR 391; 3 CFR. 1950 Supp. and E.O. 10930, 26 FR 2583; 3 CFR 1961 Supp. § 7.0 W nation. 7.8 Employee’s right of appeal. AUTHORITY: Reorg. Plan No. 1 of 1953, 18 FR 2053; 3 CFR 1953 Supp. E.O. 10096, 15 FR 391; 3 CFR. 1950 Supp. and E.O. 10930, 26 FR 2583; 3 CFR 1961 Supp. § 7.0 Who are employees. As used in this part, the term Govern- ment employee means any officer or em- ployee, civilian or military, except such part-time employees or part-time consultants as may be excluded there- from by a determination made in writ- ing by the head of the employee’s office or constituent organization, pursuant to an exemption approved by the Com- missioner of Patents that to include him or them would be impracticable or inequitable, given the reasons therefor. A person shall not be considered to be a part-time employee or part-time con- sultant for this purpose unless the terms of his employment contemplate that he shall work for less than the minimum number of hours per day, or less than a minimum number of days per week, or less than the minimum number of weeks per year, regularly re- quired of full-time employees of his class. [27 FR 7986, Aug. 10, 1962] § 7.1 Duty of employee to report inven- tions. Every Department employee is re- quired to report to the Assistant Se gularly re- quired of full-time employees of his class. [27 FR 7986, Aug. 10, 1962] § 7.1 Duty of employee to report inven- tions. Every Department employee is re- quired to report to the Assistant Sec- retary (Health and Scientific Affairs) in accordance with the procedures es- tablished therefor, every invention made by him (whether or not jointly with others) which bears any relation to his official duties or which was made in whole or in any part during working hours, or with any contribution of Gov- ernment facilities, equipment, mate- rial, funds, or information, or of time or services of other Government em- ployees on official duty. PART 7—EMPLOYEE INVENTIONS [31 FR 12842, Oct. 1, 1966] Sec. 7.0 Who are employees. 7.1 Duty of employee to report inventions. 7.3 Determination as to domestic rights. 7.4 Option to acquire foreign rights. § 7.3 Determination as to domestic rights. The determination of the ownership of the domestic right, title, and inter- est in and to an invention which is or 48 Dept. of Health and Human Services § 7.4 may be patentable, made by a Govern- ment employee while under the admin- istrative jurisdiction of the Depart- ment, shall be made in writing b which is or 48 Dept. of Health and Human Services § 7.4 may be patentable, made by a Govern- ment employee while under the admin- istrative jurisdiction of the Depart- ment, shall be made in writing by the Assistant Secretary (Health and Sci- entific Affairs), in accordance with the provisions of Executive Order 10096 and Government-wide regulations issued thereunder by the Commissioner of Patents as follows: (a) The Government as represented by the Assistant Secretary (Health and Scientific Affairs) shall obtain the en- tire domestic right, title and interest in and to all inventions made by any Government employee (1) during work- ing hours, or (2) with a contribution by the Government of facilities, equip- ment, materials, funds, or information, or of time or services of other Govern- ment employees on official duty, or (3) which bear a direct relation to or are made in consequence of the official du- ties of the inventor. (b) In any case where the contribu- tion of the Government, as measured by any one or more of the criteria set forth in paragraph (a) of this section, to the invention is insufficient equi- tably to justify a requirement of as- signment to the Government of th as measured by any one or more of the criteria set forth in paragraph (a) of this section, to the invention is insufficient equi- tably to justify a requirement of as- signment to the Government of the en- tire domestic right, title and interest in and to such invention, or in any case where the Government has insufficient interest in an invention to obtain the entire domestic right, title, and inter- est therein (although the Government could obtain same under paragraph (a) of this section), the Department, sub- ject to the approval of the Commis- sioner, shall leave title to such inven- tion in the employee, subject, however, to the reservation to the Government of a nonexclusive, irrevocable, royalty- free license in the invention with power to grant licenses for all govern- mental purposes, such reservation to appear, where practicable, in any pat- ent, domestic or foreign, which may issue on such invention. (c) In applying the provisions of para- graphs (a) and (b) of this section, to the facts and circumstances relating to the making of any particular invention, it shall be presumed that an invention made by an employee who is employed or assigned (1) to invent or improve or , to the facts and circumstances relating to the making of any particular invention, it shall be presumed that an invention made by an employee who is employed or assigned (1) to invent or improve or perfect any art, machine, manufacture, or composition of matter, (2) to con- duct or perform research, development work, or both, (3) to supervise, direct, coordinate, or review Government fi- nanced or conducted research, develop- ment work, or both, or (4) to act in a li- aison capacity among governmental or nongovernmental agencies or individ- uals engaged in such work, falls within the provisions of paragraph (a) of this section, and it shall be presumed that any invention made by any other em- ployee falls within the provisions of paragraph (b) of this section. Either presumption may be rebutted by a showing of the facts and circumstances and shall not preclude a determination that these facts and circumstances jus- tify leaving the entire right, title and interest in and to the invention in the Government employee, subject to law. (d) In any case wherein the Govern- ment neither (1) obtains the entire do- mestic right, title and interest in and to an invention pursuant to the pro tion in the Government employee, subject to law. (d) In any case wherein the Govern- ment neither (1) obtains the entire do- mestic right, title and interest in and to an invention pursuant to the provi- sions of paragraph (a) of this section, nor (2) reserves a nonexclusive, irrev- ocable, royalty-free license in the in- vention, with power to grant licenses for all governmental purposes, pursu- ant to the provisions of paragraph (b) of this section, the Government shall leave the entire right, title and inter- est in and to the invention in the Gov- ernment employee, subject to law. [27 FR 7986, Aug. 10, 1962, as amended at 31 FR 12842, Nov. 1, 1966] § 7.4 Option to acquire foreign rights. In any case where it is determined that all domestic rights should be as- signed to the Government, it shall fur- ther be determined, pursuant to Execu- tive Order 9865 and Government-wide regulations issued thereunder, that the Government shall reserve an option to require the assignment of such rights in all or in any specified foreign coun- tries. In case where the inventor is not required to assign the patent rights in any foreign country or countries to the Government or the Government fai ights in all or in any specified foreign coun- tries. In case where the inventor is not required to assign the patent rights in any foreign country or countries to the Government or the Government fails to exercise its option within such period of time as may be provided by regula- tions issued by the Commissioner of Patents, any application for a patent which may be filed in such country or countries by the inventor or his as- signee shall nevertheless be subject to a nonexclusive, irrevocable, royalty- 49 § 7.7 45 CFR Subtitle A (10–1–24 Edition) free license to the Government for all governmental purposes, including the power to issue sublicenses for use in be- half of the Government and/or in fur- therance of the foreign policies of the Government. § 9.1 Purpose. To enhance the availability of DHHS scientific research and study facilities to academic scientists, engineers, and qualified students. [27 FR 7987, Aug. 10, 1962] § 9.2 Policy. § 7.7 Notice to employee of determina- tion. The employee-inventor shall be noti- fied in writing of the Department’s de- termination of the rights to his inven- tion and of his right of appeal, if any. Notice need not be given if the em- ploye The employee-inventor shall be noti- fied in writing of the Department’s de- termination of the rights to his inven- tion and of his right of appeal, if any. Notice need not be given if the em- ployee stated in writing that he would agree to the determination of owner- ship which was in fact made. [31 FR 12842, Oct. 1, 1966] § 7.8 Employee’s right of appeal. An employee who is aggrieved by a determination of the Department may appeal to the Commissioner of Patents, pursuant to section 4(d) of Executive Order 10096, as amended by Executive Order 10930, and regulations issued thereunder, by filing a written appeal with the Commissioner, in duplicate, and a copy of the appeal with the As- sistant Secretary (Health and Sci- entific Affairs), within 30 days (or such longer period as the Commissioner may, for good cause, fix in any case) after receiving written notice of such determination. [27 FR 7986, Aug. 10, 1962, as amended at 31 FR 12842, Oct. 1, 1966] PART 9—USE OF HHS RESEARCH FACILITIES BY ACADEMIC SCI- ENTISTS, ENGINEERS, AND STU- DENTS Sec. 9.1 Purpose. 9.2 Policy. 9.3 Delegations of authority. 9.4 Criteria. 9.5 Restrictions. AUTHORITY: 27 Stat. 395, as amended; 20 U.S.C. 91. ITIES BY ACADEMIC SCI- ENTISTS, ENGINEERS, AND STU- DENTS Sec. 9.1 Purpose. 9.2 Policy. 9.3 Delegations of authority. 9.4 Criteria. 9.5 Restrictions. AUTHORITY: 27 Stat. 395, as amended; 20 U.S.C. 91. SOURCE: 34 FR 18938, Nov. 27, 1969, unless otherwise noted. It is the policy of the Department of Health and Human Services in accord- ance with the policy of the President announced on February 21, 1969, to make research and study facilities of the Department readily available to the scientific community, especially qualified academic scientists and engi- neers. Unique, unusual, and expensive- to-duplicate facilities at laboratories and other study and research facilities of the Department will be made avail- able to the national scientific commu- nity, to the maximum extent practical without serious detriment to the mis- sions of those facilities. It is also the policy of the Department to permit qualified students and graduates of in- stitutions of learning in the several States, and territories, as well as the District of Columbia, to use study and research facilities of the Department. When such facilities are used by aca- demic scientists, engineers, and stu- dents, the costs in erritories, as well as the District of Columbia, to use study and research facilities of the Department. When such facilities are used by aca- demic scientists, engineers, and stu- dents, the costs incurred for the oper- ation of the unique or unusual research facilities, as well as of the other facili- ties, should be funded by the operating agency responsible for the operation of that facility, except for any significant incremental costs incurred in support of research not directly related to an HHS mission. § 9.3 Delegations of authority. (a) The heads of operating agencies are delegated authority for negotia- tions and decisions as to the use of De- partment facilities by qualified aca- demic scientists, engineers, and stu- dents. (b) The heads of operating agencies may (and are encouraged to) redelegate to the heads of their respective compo- nent organizations, with the power to further redelegate to laboratory direc- tors, the authority for negotiations and decisions as to the use of depart- mental facilities. Appropriate use shall be made of advisory groups in formu- lating their decisions. 50 Dept. of Health and Human Services § 12.1 § 9.4 Criteria. (a) The official permi use of depart- mental facilities. Appropriate use shall be made of advisory groups in formu- lating their decisions. 50 Dept. of Health and Human Services § 12.1 § 9.4 Criteria. (a) The official permitting use of De- partment facilities must determine that it would be consistent with the programs of his activity to participate. Facilities may be made available pro- vided the use of such facilities will be of direct benefit to the objectives of the academic scientist, or engineer, or student, with the prospect of fruitful interchange of ideas and information between Department personnel and the academic scientist, or engineer, or stu- dent, and such use will not interfere with the Department program. (b) The official permitting use of De- partment facilities will furnish the non-Government user with safety re- quirements or operating procedures to be followed. Such requirements or pro- cedures are to include the requirement to report to the permitting official any accident involving the non-Govern- ment user. (c) The official delegated authority for approving the use of Department fa- cilities will not permit the use of lab- oratory facilities unless he determines: (1) That faciliti non-Govern- ment user. (c) The official delegated authority for approving the use of Department fa- cilities will not permit the use of lab- oratory facilities unless he determines: (1) That facilities are available for the period desired; and (2) That the proposed research will not interfere with regular Department functions or needs, nor require the sub- sequent acquisition of additional equipment by the Department. § 9.5 Restrictions. (a) Each individual authorized to use Department facilities will be expected to use the facilities and equipment with customary care and otherwise conduct himself in such manner as to complete his research or study within any time limits prescribed. (b) Each individual authorized to use HHS facilities may not be authorized to sign requisitions for supplies and equipment. (c) Any official approving the use of HHS facilities should seek an agree- ment, executed by non-Government users, absolving the Federal agency of liability in case of personal injury, death, and failure or damage to the non-Government user’s experiments or equipment. The agreement must also contain a statement that the non-Gov- ernment user will comply with all safe- ty regulatio , death, and failure or damage to the non-Government user’s experiments or equipment. The agreement must also contain a statement that the non-Gov- ernment user will comply with all safe- ty regulations and procedures while using such facilities. PART 12—DISPOSAL AND UTILIZA- TION OF SURPLUS REAL PROPERTY FOR PUBLIC HEALTH PURPOSES Sec. 12.1 Definitions. 12.2 Scope. 12.3 General policies. 12.4 Limitations. 12.5 Awards. 12.6 Notice of available property. 12.7 Applications for surplus real property. 12.8 Assignment of surplus real property. 12.9 General disposal terms and conditions. 12.10 Compliance with the National Envi- ronmental Policy Act of 1969 and other related Acts (environmental impact). 12.11 Special terms and conditions. 12.12 Utilization. 12.13 Form of conveyance. 12.14 Compliance inspections and reports. 12.15 Reports to Congress. EXHIBIT A TO PART 12—PUBLIC BENEFIT AL- LOWANCE FOR TRANSFER OF REAL PROP- ERTY FOR HEALTH PURPOSES AUTHORITY: Sec. 203, 63 Stat. 385, as amend- ed; 40 U.S.C. 484; sec. 501 of Pub. L. 100–77, 101 Stat. 509–10, 42 U.S.C. 11411. SOURCE: 45 FR 72173, Oct. 31, 1980, unless otherwise noted. § 12.1 Definitions. (a) Act means the Federal Property an ed; 40 U.S.C. 484; sec. 501 of Pub. L. 100–77, 101 Stat. 509–10, 42 U.S.C. 11411. SOURCE: 45 FR 72173, Oct. 31, 1980, unless otherwise noted. § 12.1 Definitions. (a) Act means the Federal Property and Administrative Services Act of 1949, 63 Stat. 377 (40 U.S.C. 471 et seq.). Terms defined in the Act and not de- fined in this section have the meanings given to them in the Act. (b) Accredited means having the ap- proval of a recognized accreditation board or association on a regional, State, or national level, such as a State Board of Health. Approval as used above describes the formal process car- ried out by State Agencies and institu- tions in determining that health orga- nizations or programs meet minimum acceptance standards. (c) Administrator means the Adminis- trator of General Services. (d) Assigned property means real and related personal property which, in the discretion of the Administrator or his designee, has been made available to the Department for transfer for public health purposes. 51 § 12.2 45 CFR Subtitle A (10–1–24 Edition) (e) Department means the U.S. De- partment of Health and Human Serv- ices. (f) Disposal agency means the execu- tive agency of the Governme alth purposes. 51 § 12.2 45 CFR Subtitle A (10–1–24 Edition) (e) Department means the U.S. De- partment of Health and Human Serv- ices. (f) Disposal agency means the execu- tive agency of the Government which has authority to assign property to the Department for transfer for public health purposes. (g) Excess means any property under the control of any Federal agency which is not required for its needs and the discharge of its responsibilities, as determined by the head thereof. (h) Fair market value means the high- est price which the property will bring by sale in the open market by a willing seller to a willing buyer. (i) Holding agency means the Federal agency which has control over and ac- countability for the property involved. (j) Nonprofit institution means any in- stitution, organization, or association, incorporated or unincor- whether porated, no part of the net earnings of which inures or may lawfully inure to the benefit of any private shareholder or individual, and (except for institu- tions which lease property to assist the homeless under Title V of Pub. L. 100– 77) which has been held to be tax-ex- empt under section 501(c)(3) of the In- ternal Revenue Code of 195 pt for institu- tions which lease property to assist the homeless under Title V of Pub. L. 100– 77) which has been held to be tax-ex- empt under section 501(c)(3) of the In- ternal Revenue Code of 1954. (k) Off-site property means surplus buildings, utilities and all other re- movable improvements, including re- lated personal property, to be trans- ferred by the Department for removal and use away from the site for public health purposes. (l) On-site means surplus real prop- erty, including related personal prop- erty, to be transferred by the Depart- ment for use in place for public health purposes. (m) Public benefit allowance means a discount on the sale or lease price of real property transferred for public health purposes, representing any ben- efit determined by the Secretary which has accrued or may accrue to the United States thereby. (n) Related personal property means any personal property: (1) Which is lo- cated on and is (i) an integral part of, or (ii) useful in the operation of real property; or (2) which is determined by the Administrator to be otherwise re- lated to the real property. (o) Secretary means the Secretary of Health and Human Services. (p) State means a tion of real property; or (2) which is determined by the Administrator to be otherwise re- lated to the real property. (o) Secretary means the Secretary of Health and Human Services. (p) State means a State of the United States, and includes the District of Co- lumbia, the Commonwealth of Puerto Rico, and the Territories and posses- sions of the United States. (q) Surplus when used with respect to real property means any excess real property not required for the needs and the discharge of the responsibilities of all Federal agencies as determined by the Administrator. [45 FR 72173, Oct. 31, 1980, as amended at 53 FR 7745, Mar. 10, 1988] § 12.2 Scope. This part is applicable to surplus real property located within any State which is appropriate for assignment to, or which has been assigned to, the De- partment for transfer for public health purposes, as provided for in section 203(k) of the Act. § 12.3 General policies. (a) It is the policy of the Department to foster and assure maximum utiliza- tion of surplus real property for public health purposes, including research. (b) Transfers may be made only to States, their political subdivisions and instrumentalities, tax-supported publ utiliza- tion of surplus real property for public health purposes, including research. (b) Transfers may be made only to States, their political subdivisions and instrumentalities, tax-supported public health institutions, and nonprofit pub- lic health institutions which (except for institutions which lease property to assist the homeless under Title V of Pub. L. 100–77) have been held tax-ex- empt under section 501(c)(3) of the In- ternal Revenue Code of 1954. (c) Real property will be requested for assignment only when the Depart- ment has determined that the property is suitable and needed for public health purposes. The amount of real and re- lated personal property to be trans- ferred shall not exceed normal oper- ating requirements of the applicant. Such property will not be requested for assignment unless it is needed at the time of application for public health purposes or will be so needed within the immediate or foreseeable future. Where construction or major renova- tion is not required or proposed, the property must be placed into use with- in twelve (12) months from the date of transfer. When construction or major renovation is contemplated at the time 52 Dept. of Hea not required or proposed, the property must be placed into use with- in twelve (12) months from the date of transfer. When construction or major renovation is contemplated at the time 52 Dept. of Health and Human Services § 12.7 of transfer, the property must be placed in use within 36 months from the date of transfer. If the applicable time limitation is not met, the trans- feree shall either commence payments in cash to the Department for each month thereafter during which the pro- posed use has not been implemented or take such other action as set forth in § 12.12 as is deemed appropriate by the Department. Such monthly payments shall be computed on the basis of the current fair market value of the prop- erty at the time of the first payment by subtracting therefrom any portion of the purchase price paid in cash at the time of transfer, and by dividing the balance by the total number of months in the period of restriction. If the facility has not been placed into use within eight (8) years of the date of the deed, title to the property will be revested in the United States, or, at the discretion of the Department, the restrictions and conditions may be ab- rogated in accordance 8) years of the date of the deed, title to the property will be revested in the United States, or, at the discretion of the Department, the restrictions and conditions may be ab- rogated in accordance with § 12.9. (d) Transfers will be made only after the applicant has certified that the proposed program is not in conflict with State or local zoning restrictions, building codes, or similar limitations. (e) Organizations which may be eligi- ble include those which provide care and training for the physically and mentally ill, including medical care of the aged and infirm; clinical services; services (including shelter) to homeless individuals; other public health serv- ices (including water and sewer); or similar services devoted primarily to the promotion and protection of public health. In addition, organizations which provide assistance to homeless individuals may be eligible for leases under title V of Public Law 100–77. Ex- cept for the provision of services (in- cluding shelter) to homeless individ- uals, organizations which have as their principal purpose the providing of cus- todial or domiciliary care are not eligi- ble. The eligible organization must be authorized to carry o homeless individ- uals, organizations which have as their principal purpose the providing of cus- todial or domiciliary care are not eligi- ble. The eligible organization must be authorized to carry out the activity for which it requests the property. (f) An applicant’s plan of operation will not be approved unless it provides that the applicant will not discrimi- nate because of race, color, sex, handi- cap, or national origin in the use of the property. [45 FR 72173, Oct. 31, 1980, as amended at 53 FR 7745, Mar. 10, 1988; 55 FR 32252, Aug. 8, 1990] § 12.4 Limitations. (a) Surplus property transferred pur- suant to this part will be disposed of on an ‘‘as is, where is,’’ basis without war- ranty of any kind. (b) Unless excepted by the General Services Administrator in his assign- ment, mineral rights will be conveyed together with the surface rights. § 12.5 Awards. Where there is more than one appli- cant for the same property, it will be awarded to the applicant having a pro- gram of utilization which provides, in the opinion of the Department, the greatest public benefit. Where the property will serve more than one pro- gram, it will be apportioned to fit the needs of as many of utilization which provides, in the opinion of the Department, the greatest public benefit. Where the property will serve more than one pro- gram, it will be apportioned to fit the needs of as many programs as is prac- ticable. § 12.6 Notice of available property. Reasonable publicity will be given to the availability of surplus real prop- erty which is suitable for assignment to the Department for transfer for pub- lic health uses. The Department will establish procedures reasonably cal- culated to afford all eligible users hav- ing a legitimate interest in acquiring the property for such uses an oppor- tunity to make an application therefor. However, publicity need not be given to the availability of surplus real prop- erty which is occupied and being used for eligible public health purposes at the time the property is declared sur- plus, the occupant expresses interest in the property, and the Department de- termines that it has a continuing need therefor. § 12.7 Applications for surplus real property. Applications for surplus real prop- erty for public health purposes shall be made to the Department through the office specified in the notice of avail- ability. [55 FR 32252, A surplus real property. Applications for surplus real prop- erty for public health purposes shall be made to the Department through the office specified in the notice of avail- ability. [55 FR 32252, Aug. 8, 1990] 53 § 12.8 45 CFR Subtitle A (10–1–24 Edition) § 12.8 Assignment of surplus real prop- erty. (a) Notice of interest in a specific property for public health purposes will be furnished the General Services Ad- ministrator by the Department at the earliest possible date. (b) Requests to the Administrator for assignment of surplus real property to the Department for transfer for public health purposes will be based on the following conditions: (1) The Department has an acceptable application for the property. (2) The applicant is willing, author- ized, and in a position to assume imme- diate care, custody, and maintenance of the property. (3) The applicant is able, willing and authorized to pay the administrative expenses incident to the transfer. (4) The applicant has the necessary funds, or the ability to obtain such funds, to carry out the approved pro- gram of use of the property. § 12.9 General disposal terms and con- ditions. (a) Surplus real property transfers under thi ry funds, or the ability to obtain such funds, to carry out the approved pro- gram of use of the property. § 12.9 General disposal terms and con- ditions. (a) Surplus real property transfers under this part will be limited to pub- lic health purposes. Transferees shall be entitled to a public benefit allow- ance in terms of a percentage which will be applied against the value of the property to be conveyed. Such an al- lowance will be computed on the basis of benefits to the United States from the use of such property for public health purposes. The computation of such public benefit allowances will be in accordance with Exhibit A attached hereto and made a part hereof. (b) A transfer of surplus real property for public health purposes is subject to the disapproval of the Administrator within 30 days after notice is given to him of the proposed transfer. (c) Transfers will be on the following terms and conditions: (1) The transferee will be obligated to utilize the property continuously in ac- cordance with an approved plan of op- eration. (2) The transferee will not be per- mitted to sell, lease or sublease, rent, mortgage, encumber, or otherwise dis- pose of the property, or any y in ac- cordance with an approved plan of op- eration. (2) The transferee will not be per- mitted to sell, lease or sublease, rent, mortgage, encumber, or otherwise dis- pose of the property, or any part there- of, without the prior written authoriza- tion of the Department. (3) The transferee will file with the Department such reports covering the utilization of the property as may be required. (4) In the event the property is sold, leased or subleased, encumbered, dis- posed of, or is used for purposes other than those set forth in the approved plan without the consent of the De- partment, all revenues or the reason- able value of other benefits received by the transferee directly or indirectly from such use, as determined by the Department, will be considered to have been received and held in trust by the transferee for the account of the United States and will be subject to the direction and control of the De- partment. The provisions of this para- graph shall not impair or affect the rights reserved to the United States in paragraph (c)(6) of this section, or the right of the Department to impose con- ditions to its consent. (5) Lessees will be required to carry all perils an the rights reserved to the United States in paragraph (c)(6) of this section, or the right of the Department to impose con- ditions to its consent. (5) Lessees will be required to carry all perils and liability insurance to protect the Government and the Gov- ernment’s residual interest in the prop- erty. Transferees will be required to carry such flood insurance as may be required by the Department pursuant to Pub. L. 93–234. Where the transferee elects to carry insurance against dam- ages to or loss of on-site property due to fire or other hazards, and where loss or damage to transferred Federal sur- plus real property occurs, all proceeds from insurance shall be promptly used by the transferee for the purpose of re- pairing and restoring the property to its former condition, or replacing it with equivalent or more suitable facili- ties. If not so used, there shall be paid to the United States that part of the insurance proceeds that is attributable to the Government’s residual interest in the property lost, damaged, or de- stroyed in the case of leases, attrib- utable to the fair market value of the leased facilities. (6) With respect to on-site property, in the event of noncom rest in the property lost, damaged, or de- stroyed in the case of leases, attrib- utable to the fair market value of the leased facilities. (6) With respect to on-site property, in the event of noncompliance with any of the conditions of the transfer as de- termined by the Department, title to the property transferred and the right to immediate possession shall, at the option of the Department, revert to the 54 Dept. of Health and Human Services § 12.9 Government. In the event title is re- verted to the United States for non- compliance or voluntarily reconveyed, the transferee shall, at the option of the Department, be required to reim- burse the Government for the decrease in value of the property not due to rea- sonable wear and tear or acts of God or attributable to alterations completed by the transferee to adapt the property to the public health use for which the property was transferred. With respect to leased property, in the event of non- compliance with any of the conditions of the lease, as determined by the De- partment, the right of occupancy and possession shall, at the option of the Department, be terminated. In the event a leasehold is terminated by the United State of the lease, as determined by the De- partment, the right of occupancy and possession shall, at the option of the Department, be terminated. In the event a leasehold is terminated by the United States for noncompliance or is voluntarily surrendered, the lessee shall be required at the option of the Department to reimburse the Govern- ment for the decrease in value of the property not due to reasonable wear and tear or acts of God or attributable to alterations completed by the lessee to adapt the property to the public health use for which the property was leased. With respect to any reverter of title or termination of leasehold resulting from noncompliance, the Government shall, in addition thereto, be reim- bursed for such costs as may be in- curred in recovering title to or posses- sion of the property. Any payments of cash made by the transferee against the purchase price of property transferred shall, upon a for- feiture of title to the property for breach of condition, be forfeited. (7) With respect to off-site property, in the event of noncompliance with any of the terms and conditions of the transfer, the unearned public benefit allowance shall, at the option of the Depart ted. (7) With respect to off-site property, in the event of noncompliance with any of the terms and conditions of the transfer, the unearned public benefit allowance shall, at the option of the Department, become immediately due and payable or, if the property or any portion thereof is sold, leased, or other- wise disposed of without authorization from the Department, such sale, lease or sublease, or other disposal shall be for the benefit and account of the United States and the United States shall be entitled to the proceeds. In the event the transferee fails to remove the property or any portion thereof within the time specified, then in addition to the rights reserved above, at the option of the Department, all right, title, and interest in and to such unremoved property shall be retransferred to other eligible applicants or shall be forfeited to the United States. (8) With respect only to on-site prop- erty which has been declared excess by the Department of Defense, such dec- laration having included a statement indicating the property has a known potential for use during a national emergency, the Department shall re- serve the right during any period of emergency declared by ation having included a statement indicating the property has a known potential for use during a national emergency, the Department shall re- serve the right during any period of emergency declared by the President of the United States or by the Congress of the United States to the full and unre- stricted use by the Government of the surplus real property, or of any portion thereof, disposed of in accordance with the provisions of this part. Such use may be either exclusive or nonexclu- sive. Prior to the expiration or termi- nation of the period of restricted use by the transferee, the Government will not be obligated to pay rent or any other fees or charges during the period of emergency, except that the Govern- ment will: (i) Bear the entire cost of mainte- nance of such portion of the property used by it exclusively or over which it may have exclusive possession or con- trol; (ii) Pay the fair share, commensurate with the use of the cost of maintenance of such surplus real property as it may use nonexclusively or over which it may have nonexclusive possession or control; (iii) Pay a fair rental for the use of improvements or additions to the sur- plus real property made by the as it may use nonexclusively or over which it may have nonexclusive possession or control; (iii) Pay a fair rental for the use of improvements or additions to the sur- plus real property made by the pur- chaser or lessee without Government aid; and (iv) Be responsible for any damage to the surplus real property caused by its use, reasonable wear and tear, the com- mon enemy and acts of God excepted. Subsequent to the expiration or termi- nation of the period of restricted use, the obligations of the Government will be as set forth in the preceding sen- tence and, in addition, the Government shall be obligated to pay a fair rental for all or any portion of the conveyed premises which it uses. (9) The restrictions set forth in para- graphs (c) (1) through (7) of this section 55 § 12.10 45 CFR Subtitle A (10–1–24 Edition) will extend for thirty (30) years for land with or without improvements; and for facilities being acquired sepa- rately from land whether they are for use on-site or off-site, the period of limitations on the use of the structures will be equal to their estimated eco- nomic life. The restrictions set forth in paragraphs (c) (1) through (7) of this section will exten f-site, the period of limitations on the use of the structures will be equal to their estimated eco- nomic life. The restrictions set forth in paragraphs (c) (1) through (7) of this section will extend for the entire ini- tial lease period and for any renewal periods for property leased from the Department. (d) Transferees, by obtaining the con- sent of the Department, may abrogate the restrictions set forth in paragraph (c) of this section for all or any portion of the property upon payment in cash to the Department of an amount equal to the then current fair market value of the property to be released, multi- plied by the public benefit allowance granted at the time of conveyance, di- vided by the total number of months of the period of restriction set forth in the conveyance document and multi- plied by the number of months that re- main in the period of restriction as de- termined by the Department. For pur- poses of abrogation payment computa- tion, the current fair market value shall not include the value of any im- provements placed on the property by the transferee. (e) Related personal property will be transferred or leased as a part of the realty and in accordance with re hall not include the value of any im- provements placed on the property by the transferee. (e) Related personal property will be transferred or leased as a part of the realty and in accordance with real property procedures. It will be subject to the same public benefit allowance granted for the real property. Where related personal property is involved in an on-site transfer, the related per- sonal property may be transferred by a bill of sale imposing restrictions for a period not to exceed five years from the date of transfer, other terms and conditions to be the same as, and made a part of, the real property trans- action. § 12.10 Compliance with the National Environmental Policy Act of 1969 and other related Acts (environ- mental impact). (a) The Department will, prior to making a final decision to convey or lease, or to amend, reform, or grant an approval or release with respect to a previous conveyance or lease of, sur- plus real property for public health purposes, complete an environmental assessment of the proposed transaction in keeping with applicable provisions of the National Environmental Policy Act of 1969, the National Historic Pres- ervation Act of 1966, the Nation nvironmental assessment of the proposed transaction in keeping with applicable provisions of the National Environmental Policy Act of 1969, the National Historic Pres- ervation Act of 1966, the National Ar- cheological Data Preservation Act, and other related acts. No permit to use surplus real property shall allow the permittee to make, or cause to be made, any irreversible change in the condition of said property, and no use permit shall be employed for the pur- pose of delaying or avoiding compli- ance with the requirements of these Acts. (b) Applicants shall be required to provide such information as the De- partment deems necessary to make an assessment of the impact of the pro- posed Federal action on the human en- vironment. Materials contained in the applicant’s official request, responses to a standard questionnaire prescribed by the Public Health Service, as well as other relevant information, will be used by the Department in making said assessment. (c) If the assessment reveals (1) That the proposed Federal action involves properties of historical significance which are listed, or eligible for listing, in the National Register of Historic Places, or (2) that a more than eals (1) That the proposed Federal action involves properties of historical significance which are listed, or eligible for listing, in the National Register of Historic Places, or (2) that a more than insig- nificant impact on the human environ- ment is reasonably foreseeable as a re- sult of the proposed action, or (3) that the proposed Federal action could re- sult in irreparable loss or destruction of archeologically significant items or data, the Department will, except as provided for in paragraph (d) of this section, prepare and distribute, or cause to be prepared or distributed, such notices and statements and obtain such approvals as are required by the above cited Acts. (d) If a proposed action involves other Federal agencies in a sequence of actions, or a group of actions, directly related to each other because of their functional interdependence, the De- partment may enter into and support a lead agency agreement to designate a single lead agency which will assume primary responsibility for coordinating 56 Dept. of Health and Human Services § 12.12 the assessment of environmental ef- fects of proposed Federal actions, pre- paring and distributing such notices and stateme sponsibility for coordinating 56 Dept. of Health and Human Services § 12.12 the assessment of environmental ef- fects of proposed Federal actions, pre- paring and distributing such notices and statements, or obtaining such ap- provals, as are required by the above cited Acts. The procedures of the des- ignated lead agency will be utilized in conducting the environmental assess- ment. In the event of disagreement be- tween the Department and another Federal agency, the Department will reserve the right to abrogate its lead agency agreement with the other Fed- eral Agency. [45 FR 72173, Oct. 31, 1980, as amended at 55 FR 32252, Aug. 8, 1990] § 12.11 Special terms and conditions. (a) Applicants will be required to pay all external administrative costs which will include, but not be limited to, taxes, surveys, appraisals, inventory costs, legal fees, title search, certifi- cate or abstract expenses, decon- tamination costs, moving costs, closing fees in connection with the transaction and service charges, if any, made by State Agencies for Federal Property Assistance under the terms of a cooper- ative agreement with the Department. (b) In the case of off-site property, applicants will service charges, if any, made by State Agencies for Federal Property Assistance under the terms of a cooper- ative agreement with the Department. (b) In the case of off-site property, applicants will be required to post per- formance bonds, make performance guarantee deposits, or give such other assurances as may be required by the Department or the holding agency to insure adequate site clearance and to pay service charges, if any, made by State Agencies for Federal Property Assistance under the terms of a cooper- ative agreement with the Department. (c) Whenever negotiations are under- taken for disposal to private nonprofit public health organizations of any sur- plus real property which cost the Gov- ernment $1 million or more, the De- partment will give notice to the Attor- ney General of the United States of the proposed disposal and the terms and conditions thereof. The applicant shall furnish to the Department such infor- mation and documents as the Attorney General may determine to be appro- priate or necessary to enable him to give the advice as provided for by sec- tion 207 of the Act. (d) Where an applicant proposes to acquire or lease and use in place im- provements lo ne to be appro- priate or necessary to enable him to give the advice as provided for by sec- tion 207 of the Act. (d) Where an applicant proposes to acquire or lease and use in place im- provements located on land which the Government does not own, he shall be required, before the transfer is con- summated, to obtain a right to use the land commensurate with the duration of the restrictions applicable to the im- provements, or the term of the lease. The applicant will be required to as- sume, or obtain release of, the Govern- ment’s obligations respecting the land including but not limited to obliga- tions relating to restoration, waste, and rent. At the option of the Depart- ment, the applicant may be required to post a bond to indemnify the Govern- ment against such obligations. (e) The Department may require the inclusion in the transfer or lease docu- ment of any other provision deemed de- sirable or necessary. (f) Where an eligible applicant for an on-site transfer proposes to construct new, or rehabilitate old, facilities, the financing of which must be accom- plished through issuance of revenue bonds having terms inconsistent with the terms and conditions of transfer prescri struct new, or rehabilitate old, facilities, the financing of which must be accom- plished through issuance of revenue bonds having terms inconsistent with the terms and conditions of transfer prescribed in § 12.9 (c), (d), and (e) of this chapter, the Department may, in its discretion, impose such alternate terms and conditions of transfer in lieu thereof as may be appropriate to assure utilization of the property for public health purposes. § 12.12 Utilization. (a) Where property or any portion thereof is not being used for the pur- poses for which transferred, the trans- feree will be required at the direction of the Department: (1) To place the property into imme- diate use for an approved purpose; (2) To retransfer such property to such other public health user as the Department may direct; (3) To sell such property for the ben- efit and account of the United States; (4) To return title to such property to the United States or to relinquish any leasehold interest therein; (5) To abrogate the conditions and re- strictions of the transfer, as set forth in § 12.9(d) of this chapter, except that, where property has never been placed in use for the purposes for which trans- ferred, brogate the conditions and re- strictions of the transfer, as set forth in § 12.9(d) of this chapter, except that, where property has never been placed in use for the purposes for which trans- ferred, abrogation will not be per- mitted except under extenuating cir- cumstances; or 57 § 12.13 45 CFR Subtitle A (10–1–24 Edition) (6) To make payments as provided for in § 12.3(c) of this chapter. (b) Where the transferee or lessee de- sires to place the property in tem- porary use for a purpose other than that for which the property was trans- ferred or leased, approval from the De- partment must be obtained, and will be conditioned upon such terms as the De- partment may impose. § 12.13 Form of conveyance. (a) Transfers or leases of surplus real property will be on forms approved by the Office of General Counsel of the De- partment and will include such of the disposal or lease terms and conditions set forth in this part and such other terms and conditions as the Office of General Counsel may deem appropriate or necessary. (b) Transfers of on-site property will normally be by quitclaim deed without warranty of title. § 12.14 Compliance inspections and re- ports. The Department will mak may deem appropriate or necessary. (b) Transfers of on-site property will normally be by quitclaim deed without warranty of title. § 12.14 Compliance inspections and re- ports. The Department will make or have made such compliance inspections as are necessary and will require of the transferee or lessee such compliance reports and actions as are deemed nec- essary. § 12.15 Reports to Congress. The Secretary will make such reports of real property disposal activities as are required by section 203 of the Act and such other reports as may be re- quired by law. EXHIBIT A TO PART 12—PUBLIC BENEFIT ALLOWANCE FOR TRANSFER OF REAL PROPERTY FOR HEALTH PURPOSES 1 Organization allowances Utilization allowances Percent allowed Classification Basic public ben- efit al- low- ance Tax sup- port Ac- credi- tation Hard- ship Unmet needs 10 to 25% 26 to 50% 51 to 100% Inte- grated re- search pro- gram Out- pa- tient serv- ices Public serv- ices Train- ing pro- gram Max- imum public benefit allow- ance Hospitals .................. Clinics ...................... Nursing Homes ........ Public Health Admin- istration ................. Public Refuse Dis- posal and Water Systems ................ Research Hospitals .................. Clinics ...................... Nursing Homes ........ Public Health Admin- istration ................. Public Refuse Dis- posal and Water Systems ................ Research .................. Rehabilitation Facility Special Services ...... Assistance to the 50 50 50 20 20 20 20 20 20 10 10 10 10 10 10 20 20 20 30 30 30 10 ........... ........... 10 .......... .......... 10 .......... .......... 10 .......... 10 100 100 100 2 100 .......... .......... .......... .......... .......... .......... ........... .......... .......... .......... 2 100 2 100 2 100 50 50 .......... .......... 20 20 .......... .......... 20 20 .......... .......... 10 10 .......... .......... 10 10 .......... .......... 20 20 .......... .......... 30 30 ........... ........... 10 ........... .......... .......... 10 .......... .......... .......... 10 10 .......... .......... 10 .......... 2 100 2 100 100 100 Homeless ............. 2 100 .......... .......... .......... .......... .......... .......... ........... .......... .......... .......... 2 100 1 This public benefit allowance applies only to surplus real property being sold for on-site use. When surplus real property is to ...... .......... ........... .......... .......... .......... 2 100 1 This public benefit allowance applies only to surplus real property being sold for on-site use. When surplus real property is to be moved from the site, a basic public benefit allowance of 100% will be granted. 2 Applicable when this is the primary use to be made of the property. The public benefit allowance for the overall health pro- gram is applicable when such facilities are conveyed as a minor component of other facilities. [45 FR 72173, Oct. 31, 1980, as amended at 53 FR 7745, Mar. 10, 1988] PART 12a—USE OF FEDERAL REAL PROPERTY TO ASSIST THE HOME- LESS Sec. 12a.1 Definitions. 12a.2 Applicability. 12a.3 Collecting the information. 12a.4 Suitability determination. 12a.5 Real property reported excess to GSA. 12a.6 Suitability criteria. 12a.7 Determination of availability. 12a.8 Public notice of determination. 12a.9 Application process. 12a.10 Action on approved applications. 12a.11 Unsuitable properties. 12a.12 No applications approved. 58 Dept. of Health and Human Services § 12a.1 AUTHORITY: 42 U.S.C. 11411; 40 U.S.C. 484(k); 42 U.S.C. 3535(d). SOURCE: 56 FR 23794, 23795, May 24, 1991, un- less otherwise no No applications approved. 58 Dept. of Health and Human Services § 12a.1 AUTHORITY: 42 U.S.C. 11411; 40 U.S.C. 484(k); 42 U.S.C. 3535(d). SOURCE: 56 FR 23794, 23795, May 24, 1991, un- less otherwise noted. § 12a.1 Definitions. Applicant means any representative of the homeless which has submitted an application to the Department of Health and Human Services to obtain use of a particular suitable property to assist the homeless. Checklist or property checklist means the form developed by HUD for use by landholding agencies to report the in- formation to be used by HUD in mak- ing determinations of suitability. Classification means a property’s des- ignation as unutilized, underutilized, excess, or surplus. Day means one calendar day includ- ing weekends and holidays. Eligible organization means a State, unit of local government or a private non-profit organization which provides assistance to the homeless, and which is authorized by its charter or by State law to enter into an agreement with the Federal government for use of real property for the purposes of this sub- part. Representatives of the homeless interested in receiving a deed for a par- ticular piece of surplus Federal prop with the Federal government for use of real property for the purposes of this sub- part. Representatives of the homeless interested in receiving a deed for a par- ticular piece of surplus Federal prop- erty must be section 501(c)(3) tax ex- empt. Excess property means any property under the control of any Federal execu- tive agency that is not required for the agency’s needs or the discharge of its responsibilities, as determined by the head of the agency pursuant to 40 U.S.C. 483. GSA means the General Services Ad- ministration. HHS means the Department of Health and Human Services. Homeless means: (1) An individual or family that lacks a fixed, regular, and adequate night- time residence; and (2) An individual or family that has a primary nighttime residence that is: (i) A supervised publicly or privately operated shelter designed to provide temporary living accommodations (in- cluding welfare hotels, congregate shelters, and transitional housing for the mentally ill); (ii) An institution that provides a temporary residence for individuals in- tended to be institutionalized; or (iii) A public or private place not de- signed for, or ordinarily used as, a reg- ular for sleeping acc ution that provides a temporary residence for individuals in- tended to be institutionalized; or (iii) A public or private place not de- signed for, or ordinarily used as, a reg- ular for sleeping accommodation human beings. This term does not in- clude any individual imprisoned or oth- erwise detained under an Act of the Congress or a State law. HUD means the Department of Hous- ing and Urban Development. ICH means the Interagency Council on the Homeless. Landholding agency means a Federal department or agency with statutory authority to control real property. Lease means an agreement between either the Department of Health and Human Services for surplus property, or landholding agencies in the case of non-excess properties or properties sub- ject to the Base Closure and Realign- ment Act (Public Law 100–526; 10 U.S.C. 2687), and the applicant, giving rise to the relationship of lessor and lessee for the use of Federal real property for a term of at least one year under the conditions set forth in the lease docu- ment. Non-profit organization means an or- ganization no part of the net earnings of which inures to the benefit of any member, founder, contributor, or indi- vidual; tha set forth in the lease docu- ment. Non-profit organization means an or- ganization no part of the net earnings of which inures to the benefit of any member, founder, contributor, or indi- vidual; that has a voluntary board; that has an accounting system or has designated an entity that will main- tain a functioning accounting system for the organization in accordance with generally accepted accounting proce- dures; practices non- discrimination in the provision of as- sistance. that and Permit means a license granted by a landholding agency to use unutilized or underutilized property for a specific amount of time under terms and condi- tions determined by the landholding agency. Property means real property con- sisting of vacant land or buildings, or a portion thereof, that is excess, surplus, or designated as unutilized or underuti- lized in surveys by the heads of land- holding agencies conducted pursuant to section 202(b)(2) of the Federal Prop- erty and Administrative Services Act of 1949 (40 U.S.C. 483(b)(2).) 59 § 12a.2 45 CFR Subtitle A (10–1–24 Edition) Regional Homeless Coordinator means a regional coordinator of the Inter- agency Council on the Homeless. Representative t of 1949 (40 U.S.C. 483(b)(2).) 59 § 12a.2 45 CFR Subtitle A (10–1–24 Edition) Regional Homeless Coordinator means a regional coordinator of the Inter- agency Council on the Homeless. Representative of the Homeless means a State or local government agency, or private nonprofit organization which provides, or proposes to provide, serv- ices to the homeless. Screen means the process by which GSA surveys Federal agencies, or State, local and non-profit entities, to determine if any such entity has an in- terest in using excess Federal property to carry out a particular agency mis- sion or a specific public use. State Homeless Coordinator means a state contact person designated by a state to receive and disseminate infor- mation and communications received from the Interagency Council on the Homeless in accordance with section 210(a) of the Stewart B. McKinney Act of 1987, as amended. Suitable property means that HUD has determined that a particular property satisfies the criteria listed in § 12a.6. Surplus property means any excess real property not required by any Fed- eral landholding agency for its needs or the discharge of its responsibilities, as determined by the Administrator in § 12a.6. Surplus property means any excess real property not required by any Fed- eral landholding agency for its needs or the discharge of its responsibilities, as determined by the Administrator of GSA. Underutilized means an entire prop- erty or portion thereof, with or with- out improvements which is used only at irregular periods or intermittently by the accountable landholding agency for current program purposes of that agency, or which is used for current program purposes that can be satisfied with only a portion of the property. Unsuitable property means that HUD has determined that a particular prop- erty does not satisfy the criteria in § 12a.6. Unutilized property means an entire property or portion thereof, with or without improvements, not occupied for current program purposes for the accountable executive agency or occu- pied in caretaker status only. § 12a.2 Applicability. (a) This part applies to Federal real property which has been designated by Federal landholding agencies as unuti- lized, underutilized, excess or surplus and is therefore subject to the provi- sions of title V of the McKinney Act (42 U.S.C. 11411). (b) The following categories of prop- erties a agencies as unuti- lized, underutilized, excess or surplus and is therefore subject to the provi- sions of title V of the McKinney Act (42 U.S.C. 11411). (b) The following categories of prop- erties are not subject to this subpart (regardless of whether they may be un- utilized or underutilized). (1) Machinery and equipment. (2) Government-owned, contractor- operated machinery, equipment, land, and other facilities reported excess for sale only to the using contractor and subject to a continuing military re- quirement. (3) Properties subject to special legis- lation directing a particular action. (4) Properties subject to a Court Order. (5) Property not subject to survey re- quirements of Executive Order 12512 (April 29, 1985). (6) Mineral rights interests. (7) Air Space interests. (8) Indian Reservation land subject to section 202(a)(2) of the Federal Prop- erty and Administrative Service Act of 1949, as amended. (9) Property interests subject to re- version. (10) Easements. (11) Property purchased in whole or in part with Federal funds if title to the property is not held by a Federal landholding agency as defined in this part. § 12a.3 Collecting the information. (a) Canvass of l erty purchased in whole or in part with Federal funds if title to the property is not held by a Federal landholding agency as defined in this part. § 12a.3 Collecting the information. (a) Canvass of landholding agencies. On a quarterly basis, HUD will canvass landholding agencies to collect infor- mation about property described as un- utilized, underutilized, excess, or sur- plus, in surveys conducted by the agen- cies under section 202 of the Federal Property and Administrative Services Act (40 U.S.C. 483), Executive Order 12512, and 41 CFR part 101–47.800. Each canvass will collect information on properties not previously reported and about property reported previously the status or classification of which has changed or for which any of the infor- mation reported on the property check- list has changed. (1) HUD will request descriptive in- formation on properties sufficient to make a reasonable determination, under the criteria described below, of the suitability of a property for use as a facility to assist the homeless. 60 Dept. of Health and Human Services § 12a.4 (2) HUD will direct landholding agen- cies to respond to requests for informa- tion within 25 days of receipt of use as a facility to assist the homeless. 60 Dept. of Health and Human Services § 12a.4 (2) HUD will direct landholding agen- cies to respond to requests for informa- tion within 25 days of receipt of such requests. (b) Agency Annual Report. By Decem- ber 31 of each year, each landholding agency must notify HUD regarding the current availability status and classi- fication of each property controlled by the agency that: (1) Was included in a list of suitable properties published that year by HUD, and (2) Remains available for application for use to assist the homeless, or has become available for application dur- ing that year. (c) GSA Inventory. HUD will collect information, in the same manner as de- scribed in paragraph (a) of this section, from GSA regarding property that is in GSA’s current inventory of excess or surplus property. (d) Change in Status. If the informa- tion provided on the property checklist changes subsequent to HUD’s deter- mination of suitability, and the prop- erty remains unutilized, underutilized, excess or surplus, the landholding agency shall submit a revised property checklist in response to the next quar- terly canvass. HUD will make a new determinatio rty remains unutilized, underutilized, excess or surplus, the landholding agency shall submit a revised property checklist in response to the next quar- terly canvass. HUD will make a new determination of suitability and, if it differs from the previous determina- tion, republish the property informa- tion in the FEDERAL REGISTER. For ex- ample, property determined unsuitable for national security concerns may no longer be subject to security restric- tions, or property determined suitable may subsequently be found to be con- taminated. EFFECTIVE DATE NOTE: At 56 FR 23794, 23795, May 24, 1991, part 12a was added, effec- tive May 24, 1991, except for § 12a.3, which will not become effective until approved by the District Court for the District of Colum- bia, pending further proceedings. § 12a.4 Suitability determination. (a) Suitability determination. Within 30 days after the receipt of information from landholding agencies regarding properties which were reported pursu- ant to the canvass described in § 12a.3(a), HUD will determine, under criteria set forth in § 12a.6, which prop- erties are suitable for use as facilities to assist the homeless and report its determination to the l ass described in § 12a.3(a), HUD will determine, under criteria set forth in § 12a.6, which prop- erties are suitable for use as facilities to assist the homeless and report its determination to the landholding agen- cy. Properties that are under lease, contract, license, or agreement by which a Federal agency retains a real property interest or which are sched- uled to become unutilized or underuti- lized will be reviewed for suitability no earlier than six months prior to the ex- pected date when the property will be- come unutilized or underutilized, ex- cept that properties subject to the Base Closure and Realignment Act may be reviewed up to eighteen months prior to the expected date when the property will become unutilized or underuti- lized. (b) Scope of suitability. HUD will de- termine the suitability of a property for use as a facility to assist the home- less without regard to any particular use. (c) Environmental information. HUD will evaluate the environmental infor- mation contained in property check- lists forwarded to HUD by the land- holding agencies solely for the purpose of determining suitability of properties under the criteria in § 12a.6. (d) Written record of n contained in property check- lists forwarded to HUD by the land- holding agencies solely for the purpose of determining suitability of properties under the criteria in § 12a.6. (d) Written record of suitability deter- mination. HUD will assign an identifica- tion number to each property reviewed for suitability. HUD will maintain a written public record of the following: (1) The suitability determination for a particular piece of property, and the reasons for that determination; and (2) The landholding agency’s response to the determination pursuant to the requirements of § 12a.7(a). (e) Property determined unsuitable. Property that is reviewed by HUD under this section and that is deter- mined unsuitable for use to assist the homeless may not be made available for any other purpose for 20 days after publication in the FEDERAL REGISTER of a Notice of unsuitability to allow for review of the determination at the re- quest of a representative of the home- less. (f) appealing unsuitability determinations. (1) To re- quest review of a determination of unsuitability, a representative of the homeless must contact HUD within 20 days of publication of notice in the FEDERAL REGISTER that ity determinations. (1) To re- quest review of a determination of unsuitability, a representative of the homeless must contact HUD within 20 days of publication of notice in the FEDERAL REGISTER that a property is unsuitable. Requests may be submitted to HUD in writing or by calling 1–800– Procedures for 61 § 12a.5 45 CFR Subtitle A (10–1–24 Edition) 927–7588 (Toll Free). Written requests must be received no later than 20 days after notice of unsuitability is pub- lished in the FEDERAL REGISTER. (2) Requests for review of a deter- mination of unsuitability may be made only by representatives of the home- less, as defined in § 12a.1. (3) The request for review must speci- fy the grounds on which it is based, i.e., that HUD has improperly applied the criteria or that HUD has relied on incorrect or incomplete information in making the determination (e.g., that property is in a floodplain but not in a floodway). (4) Upon receipt of a request to re- view a determination of unsuitability, HUD will notify the landholding agen- cy that such a request has been made, request that the agency respond with any information pertinent to the re- view, and advise the agency that it should refrain f D will notify the landholding agen- cy that such a request has been made, request that the agency respond with any information pertinent to the re- view, and advise the agency that it should refrain from initiating disposal procedures until HUD has completed its regarding unsuitability. reconsideration (i) HUD will act on all requests for review within 30 days of receipt of the landholding agency’s response and will notify the representative of the home- less and the landholding agency in writing of its decision. (ii) If a property is determined suit- able as a result of the review, HUD will request the landholding agency’s deter- mination of availability pursuant to § 12a.7(a), upon receipt of which HUD will promptly publish the determina- tion in the FEDERAL REGISTER. If the determination of unsuitability stands, HUD will inform the representative of the homeless of its decision. § 12a.5 Real property reported excess to GSA. (a) Each landholding agency must submit a report to GSA of properties it determines excess. Each landholding agency must also provide a copy of HUD’s suitability determination, if any, including HUD’s identification number for the property. (b) If a landholdi properties it determines excess. Each landholding agency must also provide a copy of HUD’s suitability determination, if any, including HUD’s identification number for the property. (b) If a landholding agency reports a property to GSA which has been re- viewed by HUD for homeless assistance suitability and HUD determined the property suitable, GSA will screen the property pursuant to § 12a.5(g) and will advise HUD of the availability of the property for use by the homeless as provided in § 12a.5(e). In lieu of the above, GSA may submit a new check- list to HUD and follow the procedures in § 12a.5(c) through § 12a.5(g). (c) If a landholding agency reports a property to GSA which has not been re- viewed by HUD for homeless assistance suitability, GSA will complete a prop- erty checklist, based on information provided by the landholding agency, and will forward this checklist to HUD for a suitability determination. This checklist will reflect any change in classification, i.e., from unutilized or underutilized to excess. (d) Within 30 days after GSA’s sub- mission, HUD will advise GSA of the suitability determination. (e) When GSA receives a letter from HUD listing suitable excess pr ilized or underutilized to excess. (d) Within 30 days after GSA’s sub- mission, HUD will advise GSA of the suitability determination. (e) When GSA receives a letter from HUD listing suitable excess properties in GSA’s inventory, GSA will transmit to HUD within 45 days a response which includes the following for each identified property: (1) A statement that there is no other compelling Federal need for the prop- erty, and therefore, the property will be determined surplus; or (2) A statement that there is further and compelling Federal need for the property (including a full explanation of such need) and that, therefore, the property is not presently available for use to assist the homeless. (f) When an excess property is deter- mined suitable and available and no- tice is published in the FEDERAL REG- ISTER, GSA will concurrently notify HHS, HUD, State and local government units, known homeless assistance pro- viders that have expressed interest in the particular property, and other or- ganizations, as appropriate, concerning suitable properties. (g) Upon submission of a Report of Excess to GSA, GSA may screen the property for Federal use. In addition, GSA may screen State and loc r- ganizations, as appropriate, concerning suitable properties. (g) Upon submission of a Report of Excess to GSA, GSA may screen the property for Federal use. In addition, GSA may screen State and local gov- ernmental units and eligible nonprofit organizations to determine interest in the property in accordance with cur- rent regulations. (See 41 CFR 101– 47.203–5, 101–47.204–1 and 101–47.303–2.) (h) The landholding agency will re- tain custody and accountability and will protect and maintain any property 62 Dept. of Health and Human Services § 12a.8 which is reported excess to GSA as pro- vided in 41 CFR 101–47.402. § 12a.6 Suitability criteria. (a) All properties, buildings and land will be determined suitable unless a property’s characteristics include one or more of the following conditions: (1) National security concerns. A prop- erty located in an area to which the general public is denied access in the interest of national security (e.g., where a special pass or security clear- ance is a condition of entry to the property) will be determined unsuit- able. Where alternative access can be provided for the public without com- promising national security, the prop- erty will not ance is a condition of entry to the property) will be determined unsuit- able. Where alternative access can be provided for the public without com- promising national security, the prop- erty will not be determined unsuitable on this basis. (2) Property containing flammable or explosive materials. A property located within 2000 feet of an industrial, com- mercial or Federal facility handling flammable or explosive material (ex- cluding underground storage) will be determined unsuitable. Above ground containers with a capacity of 100 gal- lons or less, or larger containers which provide the heating or power source for the property, and which meet local safety, operation, and permitting standards, will not affect whether a particular property is determined suit- able or unsuitable. Underground stor- age, gasoline stations and tank trucks are not included in this category and their presence will not be the basis of an unsuitability determination unless there is evidence of a threat to per- sonal safety as provided in paragraph (a)(5) of this section. (3) Runway clear zone and military air- field clear zone. A property located within an airport runway clear zone or military airfield cl - sonal safety as provided in paragraph (a)(5) of this section. (3) Runway clear zone and military air- field clear zone. A property located within an airport runway clear zone or military airfield clear zone will be de- termined unsuitable. (4) Floodway. A property located in the floodway of a 100 year floodplain will be determined unsuitable. If the floodway has been contained or cor- rected, or if only an incidental portion of the property not affecting the use of the remainder of the property is in the floodway, the property will not be de- termined unsuitable. (5) Documented deficiencies. A prop- erty with a documented and extensive condition(s) that represents a clear threat to personal physical safety will be determined unsuitable. Such condi- tions may include, but are not limited to, contamination, structural damage or extensive deterioration, friable as- bestos, PCB’s, or natural hazardous substances such as radon, periodic flooding, sinkholes or earth slides. (6) Inaccessible. A property that is in- accessible will be determined unsuit- able. An inaccessible property is one that is not accessible by road (includ- ing property on small off-shore islands) or is land locked e. A property that is in- accessible will be determined unsuit- able. An inaccessible property is one that is not accessible by road (includ- ing property on small off-shore islands) or is land locked (e.g., can be reached only by crossing private property and there is no established right or means of entry). § 12a.7 Determination of availability. (a) Within 45 days after receipt of a letter from HUD pursuant to § 12a.4(a), each landholding agency must trans- mit to HUD a statement of one of the following: (1) In the case of unutilized or under- utilized property: (i) An intention to declare the prop- erty excess, (ii) An intention to make the prop- erty available for use to assist the homeless, or (iii) The reasons why the property cannot be declared excess or made available for use to assist the home- less. The reasons given must be dif- ferent than those listed as suitability criteria in § 12a.6. (2) In the case of excess property which had previously been reported to GSA: (i) A statement that there is no com- pelling Federal need for the property, and that, therefore, the property will be determined surplus; or (ii) A statement that there is a fur- ther and compelling Federal n tement that there is no com- pelling Federal need for the property, and that, therefore, the property will be determined surplus; or (ii) A statement that there is a fur- ther and compelling Federal need for the property (including a full expla- nation of such need) and that, there- fore, the property is not presently available for use to assist the home- less. § 12a.8 Public notice of determination. (a) No later than 15 days after the last 45 day period has elapsed for re- ceiving responses from the landholding agencies regarding availability, HUD will publish in the FEDERAL REGISTER a 63 § 12a.9 45 CFR Subtitle A (10–1–24 Edition) list of all properties reviewed, includ- ing a description of the property, its address, and classification. The fol- lowing designations will be made: (1) Properties that are suitable and available. (2) Properties that are suitable and unavailable. (3) Properties that are suitable and to be declared excess. (4) Properties that are unsuitable. (b) Information about specific prop- erties can be obtained by contacting HUD at the following toll free number, 1–800–927–7588. (c) HUD will transmit to the ICH a copy of the list of all properties pub- lished in on about specific prop- erties can be obtained by contacting HUD at the following toll free number, 1–800–927–7588. (c) HUD will transmit to the ICH a copy of the list of all properties pub- lished in the FEDERAL REGISTER. The ICH will immediately distribute to all state and regional homeless coordina- tors area-relevant portions of the list. The ICH will encourage the state and regional homeless coordinators to dis- seminate this information widely. (d) No later than February 15 of each year, HUD shall publish in the FED- ERAL REGISTER a list of all properties reported pursuant to § 12a.3(b). (e) HUD shall publish an annual list of properties determined suitable but which agencies reported unavailable including the reasons such properties are not available. (f) Copies of the lists published in the FEDERAL REGISTER will be available for review by the public in the HUD head- quarters building library (room 8141); area-relevant portions of the lists will be available in the HUD regional of- fices and in major field offices. § 12a.9 Application process. (a) Holding period. (1) Properties pub- lished as available for application for use to assist the homeless shall not be available for of- fices and in major field offices. § 12a.9 Application process. (a) Holding period. (1) Properties pub- lished as available for application for use to assist the homeless shall not be available for any other purpose for a period of 60 days beginning on the date of publication. Any representative of the homeless interested in any under- utilized, unutilized, excess or surplus Federal property for use as a facility to assist the homeless must send to HHS a written expression of interest in that property within 60 days after the prop- erty has been published in the FEDERAL REGISTER. (2) If a written expression of interest to apply for suitable property for use to assist the homeless is received by HHS within the 60 day holding period, such property may not be made avail- able for any other purpose until the date HHS or the appropriate land- holding agency has completed action on the application submitted pursuant to that expression of interest. (3) The expression of interest should identify the specific property, briefly describe the proposed use, include the name of the organization, and indicate whether it is a public body or a private non-profit organization. The expression of i ntify the specific property, briefly describe the proposed use, include the name of the organization, and indicate whether it is a public body or a private non-profit organization. The expression of interest must be sent to the Division of Health Facilities Planning (DHFP) of the Department of Health and Human Services at the following ad- dress: Director, Division of Health Facilities Plan- ning, Public Health Service, Room 17A–10, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857. HHS will notify the landholding agency (for unutilized and underutilized prop- erties) or GSA (for excess and surplus properties) when an expression of inter- est has been received for a particular property. (4) An expression of interest may be sent to HHS any time after the 60 day holding period has expired. In such a case, an application submitted pursu- ant to this expression of interest may be approved for use by the homeless if: (i) No application or written expres- sion of interest has been made under any law for use of the property for any purpose; and (ii) In the case of excess or surplus property, GSA has not received a bona fide offer to purchase that property or advertised for t een made under any law for use of the property for any purpose; and (ii) In the case of excess or surplus property, GSA has not received a bona fide offer to purchase that property or advertised for the sale of the property by public auction. (b) Application Requirements. Upon re- ceipt of an expression of interest, DHFP will send an application packet to the interested entity. The applica- tion packet requires the applicant to provide certain information, including the following— (1) Description of the applicant organi- zation. The applicant must document that it satisfies the definition of a ‘‘representative of the homeless,’’ as specified in § 12a.1 of this subpart. The applicant must document its authority to hold real property. Private non-prof- it organizations applying for deeds 64 Dept. of Health and Human Services § 12a.9 must document that they are section 501(c)(3) tax-exempt. (2) Description of the property desired. The applicant must describe the prop- erty desired and indicate that any modifications made to the property will conform to local use restrictions except for local zoning regulations. (3) Description of the proposed program. The applicant must fully describe icate that any modifications made to the property will conform to local use restrictions except for local zoning regulations. (3) Description of the proposed program. The applicant must fully describe the proposed program and demonstrate how the program will address the needs of the homeless population to be as- sisted. The applicant must fully de- scribe what modifications will be made to the property before the program be- comes operational. (4) Ability to finance and operate the proposed program. The applicant must specifically describe all anticipated costs and sources of funding for the proposed program. The applicant must indicate that it can assume care, cus- tody, and maintenance of the property and that it has the necessary funds or the ability to obtain such funds to carry out the approved program of use for the property. (5) Compliance with non-discrimination requirements. Each applicant and lessee under this part must certify in writing that it will comply with the require- ments of the Fair Housing Act (42 U.S.C. 3601–3619) and implementing reg- ulations; and as applicable, Executive Order 11063 (Equal Opportunity in Housing) and implementing regula- tions; title VI of ments of the Fair Housing Act (42 U.S.C. 3601–3619) and implementing reg- ulations; and as applicable, Executive Order 11063 (Equal Opportunity in Housing) and implementing regula- tions; title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d to d–4) (Non- discrimination in Federally Assisted Programs) and implementing regula- tions; the prohibitions against dis- crimination on the basis of age under the Age Discrimination Act of 1975 (42 U.S.C. 6101–6107) and implementing reg- ulations; and the prohibitions against otherwise qualified individuals with handicaps under section 504 of the Re- habilitation Act of 1973 (29 U.S.C. 794) and implementing regulations. The ap- plicant must state that it will not dis- criminate on the basis of race, color, national origin, religion, sex, age, fa- milial status, or handicap in the use of the property, and will maintain the re- quired records to demonstrate compli- ance with Federal laws. (6) Insurance. The applicant must cer- tify that it will insure the property against loss, damage, or destruction in accordance with the requirements of 45 CFR 12.9. (7) Historic preservation. Where appli- cable, the applicant must provide in- formation t l insure the property against loss, damage, or destruction in accordance with the requirements of 45 CFR 12.9. (7) Historic preservation. Where appli- cable, the applicant must provide in- formation that will enable HHS to comply with Federal historic preserva- tion requirements. (8) Environmental information. The ap- plicant must provide sufficient infor- mation to allow HHS to analyze the po- tential impact of the applicant’s pro- posal on the environment, in accord- ance with the instructions provided with the application packet. HHS will assist applicants in obtaining any per- tinent environmental information in the possession of HUD, GSA, or the landholding agency. (9) Local government notification. The applicant must indicate that it has in- formed the applicable unit of general local government responsible for pro- viding sewer, water, police, and fire services, in writing of its proposed pro- gram. (10) Zoning and Local Use Restrictions. The applicant must indicate that it will comply with all local use restric- tions, including local building code re- quirements. Any applicant which ap- plies for a lease or permit for a par- ticular property is not required to com- ply wit comply with all local use restric- tions, including local building code re- quirements. Any applicant which ap- plies for a lease or permit for a par- ticular property is not required to com- ply with local zoning requirements. Any applicant applying for a deed of a particular property, pursuant to § 12a. 9(b)(3), must comply with local zoning requirements, as specified in 45 CFR part 12. (c) Scope of evaluations. Due to the short time frame imposed for evalu- ating applications, HHS’ evaluation will, generally, be limited to the infor- mation contained in the application. (d) Deadline. Completed applications must be received by DHFP, at the above address, within 90 days after an expression of interest is received from a particular applicant for that prop- erty. Upon written request from the applicant, HHS may grant extensions, provided that the appropriate land- holding agency concurs with the exten- sion. Because each applicant will have a different deadline based on the date the applicant submitted an expression of interest, applicants should contact the individual landholding agency to 65 § 12a.10 45 CFR Subtitle A (10–1–24 Edition) confirm that a particular property re- mains plicant submitted an expression of interest, applicants should contact the individual landholding agency to 65 § 12a.10 45 CFR Subtitle A (10–1–24 Edition) confirm that a particular property re- mains available prior to submitting an application. (e) Evaluations. (1) Upon receipt of an application, HHS will review it for completeness, and, if incomplete, may return it or ask the applicant to fur- nish any missing or additional required information prior to final evaluation of the application. (2) HHS will evaluate each completed application within 25 days of receipt and will promptly advise the applicant of its decision. Applications are evalu- ated on a first-come, first-serve basis. HHS will notify all organizations which have submitted expressions of interest for a particular property re- garding whether the first application received for that property has been ap- proved or disapproved. All applications will be reviewed on the basis of the fol- lowing elements, which are listed in descending order of priority, except that paragraphs (e)(2)(iv) and (e)(2)(v) of this section are of equal importance. (i) Services offered. The extent and range of proposed services, such as meals, s descending order of priority, except that paragraphs (e)(2)(iv) and (e)(2)(v) of this section are of equal importance. (i) Services offered. The extent and range of proposed services, such as meals, shelter, job training, and coun- seling. (ii) Need. The demand for the pro- gram and the degree to which the available property will be fully uti- lized. (iii) Implementation Time. The amount of time necessary for the proposed pro- gram to become operational. (iv) Experience. Demonstrated prior success in operating similar programs and recommendations attesting to that fact by Federal, State, and local au- thorities. (v) Financial Ability. The adequacy of funding that will likely be available to run the program fully and properly and to operate the facility. (3) Additional evaluation factors may be added as deemed necessary by HHS. If additional factors are added, the ap- plication packet will be revised to in- clude a description of these additional factors. (4) If HHS receives one or more com- peting applications for a property with- in 5 days of the first application HHS will evaluate all completed applica- tions simultaneously. HHS will rank approved applications based on the ele- m com- peting applications for a property with- in 5 days of the first application HHS will evaluate all completed applica- tions simultaneously. HHS will rank approved applications based on the ele- ments listed in § 12a.8(e)(2), and notify the landholding agency, or GSA, as ap- propriate, of the relative ranks. (Approved by the Office of Management and Budget under control number 0937–0191) § 12a.10 Action on approved applica- tions. (a) Unutilized and underutilized prop- erties. (1) When HHS approves an appli- cation, it will so notify the applicant and forward a copy of the application to the landholding agency. The land- holding agency will execute the lease, or permit document, as appropriate, in consultation with the applicant. (2) The landholding agency maintains the discretion to decide the following: (i) The length of time the property will be available. (Leases and permits will be for a period of at least one year unless the applicant requests a shorter term.) (ii) Whether to grant use of the prop- erty via a lease or permit; (iii) The terms and conditions of the lease or permit document. (b) Excess and surplus properties. (1) When HHS approves an application, it will so grant use of the prop- erty via a lease or permit; (iii) The terms and conditions of the lease or permit document. (b) Excess and surplus properties. (1) When HHS approves an application, it will so notify the applicant and request that GSA assign the property to HHS for leasing. Upon receipt of the assign- ment, HHS will execute a lease in ac- cordance with the procedures and re- quirements set out in 45 CFR part 12. In accordance with 41 CFR 101–47.402, custody and accountability of the prop- erty will remain throughout the lease term with the agency which initially reported the property as excess. (2) Prior to assignment to HHS, GSA may consider other Federal uses and other important national needs; how- ever, in deciding the disposition of sur- plus real property, GSA will generally give priority of consideration to uses to assist the homeless. GSA may con- sider any competing request for the property made under section 203(k) of the Federal Property and Administra- tive Services Act of 1949 (40 U.S.C. 484(k)) that is so meritorious and com- pelling that it outweighs the needs of the homeless, and HHS may likewise consider any competing request made under subsection 203(k)(1) Act of 1949 (40 U.S.C. 484(k)) that is so meritorious and com- pelling that it outweighs the needs of the homeless, and HHS may likewise consider any competing request made under subsection 203(k)(1) of that law. (3) Whenever GSA or HHS decides in favor of a competing request over a re- quest for property for homeless assist- ance use as provided in paragraph (b)(2) 66 Dept. of Health and Human Services Pt. 13 of this section, the agency making the decision will transmit to the appro- priate committees of the Congress an explanatory statement which details the need satisfied by conveyance of the surplus property, and the reasons for determining that such need was so meritorious and compelling as to out- weigh the needs of the homeless. (4) Deeds. Surplus property may be conveyed to representatives of the homeless pursuant to section 203(k) of the Federal Property and Administra- tive Services Act of 1949 (40 U.S.C. 484(k)(1), and section 501(f) of the McKinney Act as amended, 42 U.S.C. 11411. Representatives of the homeless must complete the application packet pursuant to the requirements of § 12a.9 of this part and in accordance with the requirements of 45 CFR part 12. (c) Complet 11411. Representatives of the homeless must complete the application packet pursuant to the requirements of § 12a.9 of this part and in accordance with the requirements of 45 CFR part 12. (c) Completion of Lease Term and Re- version of Title. Lessees and grantees will be responsible for the protection and maintenance of the property dur- ing the time that they possess the property. Upon termination of the lease term or reversion of title to the Federal government, the lessee or grantee will be responsible for remov- ing any improvements made to the property and will be responsible for restoration of the property. If such im- provements are not removed, they will become the property of the Federal government. GSA or the landholding agency, as appropriate, will assume re- sponsibility for protection and mainte- nance of a property when the lease ter- minates or title reverts. § 12a.11 Unsuitable properties. The landholding agency will defer, for 20 days after the date that notice of a property is published in the FEDERAL REGISTER, action to dispose of prop- erties determined unsuitable for home- less assistance. HUD will inform land- holding agencies or GSA if appeal of an unsuitabi roperty is published in the FEDERAL REGISTER, action to dispose of prop- erties determined unsuitable for home- less assistance. HUD will inform land- holding agencies or GSA if appeal of an unsuitability determination is filed by a representative of the homeless pursu- ant to § 12a.4(f)(4). HUD will advise the agency that it should refrain from ini- tiating disposal procedures until HUD has completed its reconsideration proc- ess regarding unsuitability. Thereafter, or if no appeal has been filed after 20 days, GSA or the appropriate land- holding agency may proceed with dis- posal action in accordance with appli- cable law. § 12a.12 No applications approved. (a) At the end of the 60 day holding period described in § 12a.9(a), HHS will notify GSA, or the landholding agency, as appropriate, if an expression of in- terest has been received for a par- ticular property. Where there is no ex- pression of interest, GSA or the land- holding agency, as appropriate, will proceed with disposal in accordance with applicable law. (b) Upon advice from HHS that all applications have been disapproved, or if no completed applications or re- quests for extensions have been re- ceived by HHS within in accordance with applicable law. (b) Upon advice from HHS that all applications have been disapproved, or if no completed applications or re- quests for extensions have been re- ceived by HHS within 90 days from the date of the last expression of interest, disposal may proceed in accordance with applicable law. PART 13—IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN AGENCY PROCEEDINGS Subpart A—General Provisions Sec. 13.1 Purpose of these rules. 13.2 When these rules apply. 13.3 Proceedings covered. 13.4 Eligibility of applicants. 13.5 Standards for awards. 13.6 Allowable fees and expenses. 13.7 Studies, exhibits, analyses, engineering reports, tests and projects. Subpart B—Information Required from Applicants 13.10 Contents of application. 13.11 Net worth exhibits. 13.12 Documentation of fees and expenses. Subpart C—Procedures for Considering Applications 13.21 Filing and service of pleadings. 13.22 When an application may be filed. 13.23 Responsive pleadings. 13.24 Settlements. 13.25 Further proceedings. 13.26 Decisions. 13.27 Agency review. 13.28 Judicial review. 13.29 Payment of award. 13.30 Designation of adjudicative officer. APPENDIX A TO PART 13 AUTHORITY: 5 U.S.C. s. 13.25 Further proceedings. 13.26 Decisions. 13.27 Agency review. 13.28 Judicial review. 13.29 Payment of award. 13.30 Designation of adjudicative officer. APPENDIX A TO PART 13 AUTHORITY: 5 U.S.C. 504(c)(1). 67 § 13.1 45 CFR Subtitle A (10–1–24 Edition) SOURCE: 48 FR 45252, Oct. 4, 1983, unless otherwise noted. Subpart A—General Provisions § 13.1 Purpose of these rules. proceedings These rules implement section 203 of the Equal Access to Justice Act, 5 U.S.C. 504 and 504 note, for the Depart- ment of Health and Human Services. They describe the circumstances under which the Department may award at- torney fees and certain other expenses to eligible individuals and entities who prevail over the Department in certain administrative (called ‘‘adversary adjudications’’). The De- partment may reimburse parties for ex- penses incurred in adversary adjudica- tions if the party prevails in the pro- ceeding and if the Department’s posi- tion in the proceeding was not substan- tially justified or if the action is one to enforce compliance with a statutory or regulatory requirement and the De- partment’s demand is substantially in excess of the ultimate decision and is unreasonable when co d or if the action is one to enforce compliance with a statutory or regulatory requirement and the De- partment’s demand is substantially in excess of the ultimate decision and is unreasonable when compared with that decision. They also describe what pro- ceedings constitute adversary adju- dications covered by the Act, what types of persons and entities may be el- igible for an award, and what proce- dures and standards the Department will use to make a determination as to whether a party may receive an award. [48 FR 45252, Oct. 4, 1983, as amended at 69 FR 2845, Jan. 21, 2004] § 13.2 When these rules apply. These rules apply to adversary adju- dications before the Department. [69 FR 2845, Jan. 21, 2004] § 13.3 Proceedings covered. (a) These rules apply only to adver- sary adjudications. For the purpose of these rules, only an adjudication re- quired to be under 5 U.S.C. 554, in which the position of the Department or one of its components is represented by an attorney or other representative (‘‘the agency’s litigating party’’) who enters an appearance and participates in the proceeding, constitutes an ad- versary adjudication. These rules do not apply to proceedings for the pur- entative (‘‘the agency’s litigating party’’) who enters an appearance and participates in the proceeding, constitutes an ad- versary adjudication. These rules do not apply to proceedings for the pur- pose of establishing or fixing a rate or for the purpose of granting, denying, or renewing a license. (b) If the agency’s litigating party enters an appearance, Department pro- ceedings listed in appendix A to this part are covered by these rules. Also covered are any other proceedings under statutes that incorporate by ref- erence the procedures of sections 1128(f), 1128A(c)(2), or 1842(j)(2) of the Social Security Act, 42 U.S.C. 1320a– 7(f), 1320a–7a(c)(2), or 1395u(j)(2). If a proceeding is not covered under either of the two previous sentences, a party may file a fee application as otherwise required by this part and may argue that the Act covers the proceeding. Any coverage issue shall be determined by the adjudicative officer and, if nec- essary, by the appellate authority on review. (c) If a proceeding is covered by these rules, but also involves issues excluded under paragraph (a) of this section from the coverage of these rules, reim- bursement is available only for fees and e (c) If a proceeding is covered by these rules, but also involves issues excluded under paragraph (a) of this section from the coverage of these rules, reim- bursement is available only for fees and expenses resulting from covered issues. [45 FR 45252, Oct. 4, 1983, as amended at 69 FR 2845, Jan. 21, 2004] § 13.4 Eligibility of applicants. (a) To be eligible for an award of at- torney fees and other expenses under these regulations, the applicant must be a party, as defined in 5 U.S.C. 551(3), to the adversary adjudication for which it seeks an award. An applicant must show that it meets all conditions of eli- gibility set out in this subpart and in Subpart B. (b) The categories of eligible appli- cants are as follows: (1) Charitable or other tax-exempt or- section described ganizations 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) with not more than 500 employees; in (2) Cooperative associations as de- fined in section 15(a) of the Agricul- tural Marketing Act (12 U.S.C. 1141j(a)) with not more than 500 employees; (3) Individuals with a net worth of not more than $2 million; (4) Sole owners of unincorporated businesses if the owner has a net worth of not more than $ . 1141j(a)) with not more than 500 employees; (3) Individuals with a net worth of not more than $2 million; (4) Sole owners of unincorporated businesses if the owner has a net worth of not more than $7 million, including both personal and business interests, 68 Dept. of Health and Human Services § 13.5 and if the business has not more than 500 employees; (5) All other partnerships, corpora- tions, associations, local governmental units, and public and private organiza- tions with a net worth of not more than $7 million and with not more than 500 employees; and (6) Where an award is sought on the basis stated in § 13.5(c) of this part, small entities as defined in 5 U.S.C. 601. (c) For the purpose of determining eligibility, the net worth and number of employees of an applicant is cal- culated as of the date the proceeding was initiated. The net worth of an ap- plicant is determined by generally ac- cepted accounting principles. (d) Whether an applicant who owns an unincorporated business will be con- sidered as an ‘‘individual’’ or a ‘‘sole owner of an unincorporated business’’ will be determined by whether the ap- plicant’s participation in the pro- ceeding is related primarily to ss will be con- sidered as an ‘‘individual’’ or a ‘‘sole owner of an unincorporated business’’ will be determined by whether the ap- plicant’s participation in the pro- ceeding is related primarily to indi- vidual interests or to business inter- ests. (e) The employees of an applicant in- clude all those persons regularly pro- viding services for remuneration for the applicant, under the applicant’s di- rection and control. Part-time employ- ees shall be included on a proportional basis. (f) The net worth and number of em- ployees of the applicant and all of its affiliates shall be aggregated to deter- mine eligibility. Any individual, cor- poration or other entity that directly or indirectly controls or owns a major- ity of the voting shares or other inter- est 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 af- filiate 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 be- tween the affiliated entities. In addi- 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 be- tween the affiliated entities. In addi- tion, the adjudicative officer may de- termine that financial relationships of the applicant other than those de- scribed in this paragraph constitute special circumstances that would make an award unjust. from the (g) An applicant is not eligible if it appears facts and cir- cumstances that it has participated in the proceedings only or primarily on behalf of other persons or entities that are ineligible. [48 FR 45252, Oct. 4, 1983, as amended at 69 FR 2846, Jan. 21, 2004] § 13.5 Standards for awards. (a) An award of fees and expenses may be made either on the basis that the Department’s position in the pro- ceeding was not substantially justified or on the basis that, in a proceeding to enforce compliance with a statutory or regulatory requirement, the Depart- ment’s demand substantially exceeded the ultimate decision and was unrea- sonable when compared with that deci- sion. These two bases are explained in greater detail in paragraphs (b) and (c) of this section. (b) Awards where t exceeded the ultimate decision and was unrea- sonable when compared with that deci- sion. These two bases are explained in greater detail in paragraphs (b) and (c) of this section. (b) Awards where the Department’s po- sition was not substantially justified. (1) Awards will be made on this basis only where the Department’s position in the proceeding was not substantially justi- fied. The Department’s position in- cludes, in addition to the position taken by the agency in the proceeding, the agency action or failure to act that was the basis for the proceeding. Whether the Department’s position was substantially justified is to be deter- mined on the basis of the administra- tive record as a whole. The fact that a party has prevailed in a proceeding does not create a presumption that the Department’s position was not sub- stantially justified. The burden of proof as to substantial justification is on the agency’s litigating party, which may avoid an award by showing that its position was reasonable in law and fact. (2) When two or more matters are joined together for one hearing, each of which could have been heard separately (without regard to laws or rules fixing a jurisdictional as reasonable in law and fact. (2) When two or more matters are joined together for one hearing, each of which could have been heard separately (without regard to laws or rules fixing a jurisdictional minimum amount for claims), and an applicant has prevailed with respect to one or several of the matters, an eligible applicant may re- ceive an award for expenses associated only with the matters on which it pre- vailed if the Department’s position on those matters was not substantially justified. 69 § 13.6 45 CFR Subtitle A (10–1–24 Edition) (3) Awards for fees and expenses in- curred before the date on which a pro- ceeding was initiated will be made only if the applicant can demonstrate that they were reasonably incurred in prep- aration for the proceeding. (4) Awards will be reduced or denied if the applicant has unduly or unrea- sonably protracted the proceeding or if other special circumstances make an award unjust. (c) Awards where the Department’s de- mand was substantially excessive and un- reasonable. (1) Awards will be made on this basis only where the adversary ad- judication arises from the Depart- ment’s action to enforce a party’s com- pliance with a statutory or regula ive and un- reasonable. (1) Awards will be made on this basis only where the adversary ad- judication arises from the Depart- ment’s action to enforce a party’s com- pliance with a statutory or regulatory requirement. An award may be made on this basis only if the Department’s demand that led to the proceeding was substantially in excess of the ultimate decision in the proceeding, and that de- mand is unreasonable when compared with that decision, given all the facts and circumstances of the case. (2) Any award made on this basis shall be limited to the fees and ex- penses that are primarily related to de- fending against the excessive nature of the demand. An award shall not in- clude fees and expenses that are pri- marily related to defending against the merits of charges, or fees and expenses that are primarily related to defending against the portion of the demand that was not excessive, to the extent that these fees and expenses are distinguish- able from the fees and expenses pri- marily related to defending against the excessive nature of the demand. (3) Awards will be denied if the party has committed a willful violation of law or otherwise acted in bad faith, or if special - marily related to defending against the excessive nature of the demand. (3) Awards will be denied if the party has committed a willful violation of law or otherwise acted in bad faith, or if special circumstances make an award unjust. [48 FR 45252, Oct. 4, 1983, as amended at 69 FR 2846, Jan. 21, 2004] § 13.6 Allowable fees and expenses. (a) Awards will be limited to the rates customarily charged by persons engaged in the business of acting as at- torneys, agents and expert witnesses. If a party has already received, or is eli- gible to receive, reimbursement for any expenses under another statutory pro- vision or another program allowing re- imbursement, its award under these rules must be reduced by the amount the prevailing party has already re- ceived, or is eligible to receive, from the Federal government. (b) An award for the fees of an attor- ney or agent may not exceed $125.00 per hour, regardless of the actual rate charged by the attorney or agent. An award for the fees of an expert witness may not exceed the highest rate at which the Department pays expert wit- nesses, which is $24.09 per hour, regard- less of the actual rates charged by the witness. These limits apply n expert witness may not exceed the highest rate at which the Department pays expert wit- nesses, which is $24.09 per hour, regard- less of the actual rates charged by the witness. These limits apply only to fees; an award may include the reason- able expenses of the attorney, agent, or witness as a separate item, if the attor- ney, agent or witness ordinarily charges separately for such expenses. (c) In determining the reasonableness of the fees sought for attorneys, agents or expert witnesses, the adjudicative officer must consider factors bearing on the request, which include, but are not limited to: (1) If the attorney, agent or witness is in private practice, his or her cus- tomary fee for like services; if the at- torney, agent or witness is an em- ployee of the applicant, the fully allo- cated cost of service; (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 esentation 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. [48 FR 45252, Oct. 4, 1983, as amended at 69 FR 2846, Jan. 21, 2004] § 13.7 Studies, exhibits, analyses, engi- neering reports, tests and projects. The reasonable cost (or the reason- able portion of the cost) for any study, exhibit, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded to the extent that: (a) The charge for the service does not exceed the prevailing rate payable for similar services, (b) The study or other matter was necessary to the preparation for the administrative proceeding, and 70 Dept. of Health and Human Services § 13.11 (c) The study or other matter was prepared for use in connection with the administrative proceeding. No award will be made for a study or other mat- ter which was necessary to satisfy stat- utory or regulatory requirements, or which would ordinarily be conducted as part of the party’s business irrespec- tive of the administrative proceeding. Subpart B—Information Required from App stat- utory or regulatory requirements, or which would ordinarily be conducted as part of the party’s business irrespec- tive of the administrative proceeding. Subpart B—Information Required from Applicants § 13.10 Contents of application. (a) Applications for an award of fees and expenses must include: (1) The name of the applicant and the identification of the proceeding; (2) Where an award is sought on the basis stated in § 13.5(b) of this part, a declaration that the applicant believes it has prevailed, and an identification of the position of the Department that the applicant alleges was not substan- tially justified. Where an award is sought on the basis stated in § 13.5(c) of this part, an identification of the stat- utory or regulatory requirement that the applicant alleges the Department was seeking to enforce, and an identi- fication of the Department’s demand and of the document or documents con- taining that demand; (3) Unless the applicant is an indi- vidual, a statement of the number of its employees on the date on which the proceeding was initiated, and a brief description of the type and purpose of its organization or business. However, where an award is sought sol of the number of its employees on the date on which the proceeding was initiated, and a brief description of the type and purpose of its organization or business. However, where an award is sought solely on the basis stated in § 13.5(c) of this part, the applicant need not state the number of its employees; (4) A description of any affiliated in- dividuals or entities, as the term ‘‘af- filiate’’ is defined in § 13.4(f), or a state- ment that none exist; (5) A statement that the applicant’s net worth as of the date on which the proceeding was initiated did not exceed the appropriate limits as stated in § 13.4(b) of this part. However, an appli- cant may omit this statement if: (i) 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 Rev- enue 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 In- ternal Revenue Service on its exempt status, a statement that describes the basis for the applicant’s belief that it qualified under such section; (ii) It states that it is a cooperative association as defined in section 15(a) of the Ag status, a statement that describes the basis for the applicant’s belief that it qualified under such section; (ii) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)); or (iii) It states that it is applying for an award solely on the basis stated in § 13.5(c) of this part, and that it is a small entity as defined in 5 U.S.C. 601, and it describes the basis for its belief that it qualifies as a small entity under that section. (6) A statement of the amount of fees and expenses for which an award is sought; (7) A declaration that the applicant has not received, has not applied for, and does not intend to apply for reim- bursement of the cost of items listed in the Statement of Fees and Expenses under any other program or statute; or if the applicant has received or applied for or will receive or apply for reim- bursement of those expenses under an- other program or statute, a statement of the amount of reimbursement re- ceived or applied for or intended to be applied for; and (8) Any other matters the applicant wishes the Department to consider in in what determining whether and amount an award should be m sement re- ceived or applied for or intended to be applied for; and (8) Any other matters the applicant wishes the Department to consider in in what determining whether and amount an award should be made. (b) All applications must be signed by the applicant or by an authorized offi- cer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the infor- mation provided in the application is true and correct. (Approved by the Office of Management and Budget under control number 0990–0118) [48 FR 45252, Oct. 4, 1983, as amended at 69 FR 2846, Jan. 21, 2004] § 13.11 Net worth exhibits. (a) Each applicant must provide with its application a detailed exhibit show- ing the net worth of the applicant and any affiliates (as defined in § 13.4(f) of this part) when the proceeding was ini- tiated. This requirement does not apply to a qualified tax-exempt organi- zation or cooperative association. Nor does it apply to a party that states 71 § 13.12 45 CFR Subtitle A (10–1–24 Edition) that it is applying for an award solely on the basis stated in § 13.5(c) of this part. If any individual, corporation, or other en to a party that states 71 § 13.12 45 CFR Subtitle A (10–1–24 Edition) that it is applying for an award solely on the basis stated in § 13.5(c) of this part. If any individual, corporation, or other entity directly or indirectly con- trols or owns a majority of the voting shares or other interest of the appli- cant, or if the applicant directly or in- directly owns or controls a majority of the voting shares or other interest of any corporation or other entity, the exhibit must include a showing of the net worth of all such affiliates or of the applicant including the affiliates. The exhibit may be in any form convenient to the applicant that provides full dis- closure of the applicant’s and its affili- ates’ assets and liabilities and is suffi- cient to determine whether the appli- cant qualifies under the standards in this part. The adjudicative officer may require an applicant to file additional information to determine its eligibility for an award. (b) The net worth exhibit shall de- scribe any transfers of assets from, or obligations incurred by, the applicant or any affiliate, occurring in the one year period prior to the date on which the proceeding was initiated, that re- du - scribe any transfers of assets from, or obligations incurred by, the applicant or any affiliate, occurring in the one year period prior to the date on which the proceeding was initiated, that re- duced the net worth of the applicant and its affiliates below the applicable net worth ceiling. If there were no such transactions, the applicant shall so state. (c) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of in- formation in any portion of the exhibit and believes there are legal grounds for withholding it from disclosure may submit that portion of the exhibit di- rectly to the adjudicative officer in a sealed envelope labeled ‘‘Confidential Financial Information,’’ accompanied by a motion to withhold the informa- tion from public disclosure. The mo- tion shall describe the information sought to be withheld and explain, in detail, why it falls within one or more of the specific exemptions from manda- tory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b)(1)–(9), why public disclosure of the informa- tion would adversely affect the appli- cant, and why disclosure is n ons from manda- tory disclosure under the Freedom of Information Act, 5 U.S.C. 552(b)(1)–(9), why public disclosure of the informa- tion would adversely affect the appli- cant, and why disclosure is not re- quired in the public interest. The mate- rial in question shall be served on agency counsel representing the 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 in- formation should not be withheld from disclosure, it shall be placed in the public record of the proceeding. Other- wise, the officer will omit the material from the public record. In that case, any decision regarding disclosure of the material (whether in response to a request from an agency or person out- side the Department or on the Depart- ment’s own initiative) will be made in accordance with applicable statutes and Department rules and procedures for commercial and financial records which the submitter claims are con- fidential or privileged. In particular, this regulation is not a basis for a promise or obligation of confiden- tiality. (Approved by the Office of Management and Budget under control number 0990–0118) idential or privileged. In particular, this regulation is not a basis for a promise or obligation of confiden- tiality. (Approved by the Office of Management and Budget under control number 0990–0118) [48 FR 45252, Oct. 4, 1983, as amended at 69 FR 2846, Jan. 21, 2004] § 13.12 Documentation of fees and ex- penses. (a) All applicants must be accom- panied by full documentation of the fees and expenses, including the cost of any study, exhibit, analysis, report, test or other similar item, for which the applicant seeks reimbursement. (b) The documentation shall include an affidavit from each attorney, agent, or expert witness representing or ap- pearing in behalf of the party, stating the actual time expended, the rate at which fees and other expenses were computed, a description of the specific services performed, 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. Where the adversary adju- dication includes covered proceedings (as described in § 13.3) as well as ex- cluded proceedings, or two or more matters, each of which could have been heard separately, the fees and expenses shall be shown se includes covered proceedings (as described in § 13.3) as well as ex- cluded proceedings, or two or more matters, each of which could have been heard separately, the fees and expenses shall be shown separately for each pro- ceeding or matter, and the basis for al- locating expenses among the pro- ceedings or matters shall be indicated. (1) The affidavit shall itemize in de- tail the services performed by the date, 72 Dept. of Health and Human Services § 13.23 number of hours per date and the serv- ices performed during those hours. In order to establish the hourly rate, the affidavit shall state the hourly rate which is billed and paid by the major- ity of clients during the relevant time periods. (2) If no hourly rate is paid by the majority of clients because, for in- stance, the attorney or agent rep- resents most clients on a contingency basis, the attorney or agent shall pro- vide affidavits from two attorneys or agents with similar experience, who perform similar work, stating the hourly rate which they bill and are paid by the majority of their clients during a comparable time period. (c) If the applicant seeks reimburse- ment of any expenses not covered by the affidavit desc hourly rate which they bill and are paid by the majority of their clients during a comparable time period. (c) If the applicant seeks reimburse- ment of any expenses not covered by the affidavit described in paragraph (b), the documentation must also in- clude an affidavit describing all such expenses and stating the amounts paid or payable by the applicant or by any other person or entity for the services provided. (d) The adjudicative officer may re- quire the applicant to provide vouch- ers, receipts, or other substantiation for any fees or expenses claimed, pursu- ant to § 13.25 of this part. (Approved by the Office of Management and Budget under control number 0990–0118) [48 FR 45252, Oct. 4, 1983, as amended at 69 FR 2847, Jan. 21, 2004] Subpart C—Procedures for Considering Applications § 13.21 Filing and service of pleadings. All pleadings, including applications for an award of fees, answers, com- ments, and other pleadings related to the applications, shall be filed in the same manner as other pleadings in the proceeding and served on all other par- ties and participants, except as pro- vided in § 13.11(b) of this part con- cerning confidential financial informa- tion. § me manner as other pleadings in the proceeding and served on all other par- ties and participants, except as pro- vided in § 13.11(b) of this part con- cerning confidential financial informa- tion. § 13.22 When an application may be filed. (a) The applicant must file and serve its application no later than 30 cal- endar days after the Department’s final disposition of the proceeding which makes the applicant a prevailing party. (b) For purposes of this rule, final disposition means the date on which a decision or order disposing of the mer- its of the proceeding or any other com- plete resolution of the proceeding, such as a settlement or voluntary dismissal, becomes final and unappealable, both within the agency and to the courts. (c) For purposes of this rule, an appli- cant has prevailed when the agency has made a final disposition favorable to the applicant with respect to any mat- ter which could have been heard as a separate proceeding, regardless of whether it was joined with other mat- ters for hearing. (d) If review or reconsideration is sought or taken, whether within the agency or to the courts, of a decision as to which an applicant believes it has prevailed, proceeding her mat- ters for hearing. (d) If review or reconsideration is sought or taken, whether within the agency or to the courts, of a decision as to which an applicant believes it has prevailed, proceedings on the applica- tion shall be stayed pending final dis- position of the underlying controversy. [48 FR 45252, Oct. 4, 1983, as amended at 69 FR 2847, Jan. 21, 2004] § 13.23 Responsive pleadings. (a) The agency’s litigating party shall file an answer within 30 calendar days after service of the application or, where the proceeding is stayed as pro- vided in § 13.22(d) of this part, within 30 calendar days after the final disposi- tion of the underlying controversy. The answer shall either consent to the award or explain in detail any objec- tions to the award requested and iden- tify the facts relied on in support of the agency’s position. The adjudicative officer may for good cause grant an ex- tension of time for filing an answer. (b) Within 15 calendar 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 sup- porting affidavits or a r 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 sup- porting affidavits or a request for fur- ther proceedings under § 13.25. (c) Any party to or participant in a proceeding may file comments on an application within 30 calendar days, or on an answer within 15 calendar days 73 § 13.24 45 CFR Subtitle A (10–1–24 Edition) after service of the application or an- swer. application, and diminishing the award granted. [48 FR 45252, Oct. 4, 1983, as amended at 69 FR 2847, Jan. 21, 2004] [48 FR 45252, Oct. 4, 1983, as amended at 69 FR 2847, Jan. 21, 2004] § 13.24 Settlements. § 13.26 Decisions. The applicant and the agency’s liti- gating party may agree on a proposed settlement of the award at any time prior to final action on the application. If the parties agree on a proposed set- tlement of an award before an applica- tion has been filed, the application shall be filed with the proposed settle- ment. All settlements must be ap- proved by the adjudicative officer and the head of the agency or office or his or her designee before becoming final. § 13.25 Further proceed ith the proposed settle- ment. All settlements must be ap- proved by the adjudicative officer and the head of the agency or office or his or her designee before becoming final. § 13.25 Further proceedings. (a) Ordinarily, a decision on an appli- cation will be made on the basis of the hearing record and pleadings related to the application. However, at the re- quest of either the applicant or the agency’s litigating party, or on his or her own initiative, the adjudicative of- ficer may order further proceedings, in- cluding an informal conference, oral argument, additional written submis- sions, or an evidentiary hearing. Such further proceedings shall be held only when necessary for full and fair resolu- tion of the issues arising from the ap- plication, and shall be conducted as promptly as possible. In no such fur- ther proceeding shall evidence be intro- duced from outside the administrative record in order to prove that the De- partment’s position was, or was not, substantially justified. (b) A request that the adjudicative officer order additional written sub- missions or oral testimony shall iden- tify the information sought and shall explain why the information is nec- essa stified. (b) A request that the adjudicative officer order additional written sub- missions or oral testimony shall iden- tify the information sought and shall explain why the information is nec- essary to decide the issues. (c) The adjudicative officer may im- pose sanctions on any party for failure to comply with his or her order to file pleadings, produce documents, or present witnesses for oral examination. These sanctions may include but are not limited to granting the application partly or completely, dismissing the The adjudicative officer shall issue an initial decision on the application as promptly as possible after the filing of the last document or conclusion of the hearing. The decision must include written findings and conclusions on the applicant’s eligibility and status as a prevailing party, including a finding on the net worth of the applicant. Where the adjudicative officer has determined under § 13.11(b) that the applicant’s net worth information is exempted from disclosure under the Freedom of Infor- mation Act, the finding on net worth shall be kept confidential. The decision shall also include, if at issue, findings on whether the agency’s position was substa sclosure under the Freedom of Infor- mation Act, the finding on net worth shall be kept confidential. The decision shall also include, if at issue, findings on whether the agency’s position was substantially justified, whether the ap- plicant unduly protracted the pro- ceedings, an explanation of any dif- ference between the amount requested and the amount awarded, and whether any special circumstances make the award unjust. § 13.27 Agency review. (a) The appellate authority for any proceedings shall be the official or component that would have jurisdic- tion over an appeal of the merits. (b) If either the applicant or the agency’s litigating party seeks review of the adjudicative officer’s decision on the fee application, it shall file and serve exceptions within 30 days after issuance of the initial decision. Within another 30 days after receipt of such exceptions, the opposing party, if it has not done so previously, may file its own exceptions to the adjudicative offi- cer’s decision. The appellate authority shall issue a final decision on the appli- cation as soon as possible or remand the application to the adjudicative offi- cer for further proceedings. Any party that does n on. The appellate authority shall issue a final decision on the appli- cation as soon as possible or remand the application to the adjudicative offi- cer for further proceedings. Any party that does not file and serve exceptions within the stated time limit loses the opportunity to do so. [69 FR 2847, Jan. 21, 2004] 74 Dept. of Health and Human Services Pt. 13, App. A § 13.28 Judicial review. Judicial review of final agency deci- sions on awards may be obtained as provided in 5 U.S.C. 504(c)(2). § 13.29 Payment of award. The notification to an applicant of a final decision that an award will be made shall contain the name and ad- dress of the appropriate Departmental finance office that will pay the award. An applicant seeking payment of an award shall submit to that finance offi- cer a copy of the final decision grant- ing the award, accompanied by a state- ment that the applicant will not seek review of the decision in the United States courts. The Department will pay the amount awarded to the appli- cant within 60 days, unless judicial re- view of the award or of the underlying decision of the adversary adjudication has been sought by the applicant or any other party to the proc ded to the appli- cant within 60 days, unless judicial re- view of the award or of the underlying decision of the adversary adjudication has been sought by the applicant or any other party to the proceedings. § 13.30 Designation of adjudicative of- ficer. Upon the filing of an application pur- suant to § 13.11(a), the officer who pre- sided over the taking of evidence in the proceeding which gave rise to the ap- plication will, if available, be auto- matically designated as the adjudica- tive officer for the handling of the ap- plication. APPENDIX A TO PART 13 Proceedings covered Statutory authority Applicable regulations Office of Inspector General 1. Proceedings to impose civil monetary penalties, assessments, or exclusions from Medicare and State health care programs. 2. Appeals of exclusions from Medicare and State health care programs and/or other programs under the Social Security Act. 3. Appeal of exclusions from programs under the Social Security Act, for which services may be provided on the recommendation of a Peer Re- view Organization. 42 U.S.C. 1320a–7a(c)(2); 1320b– 1395i–3(b)(3)(B)(ii), 10(c); (g)(2)(A)(i); 1395l(h)(5)(D), (i)(6); 1395m(a)(11)(A), (a)(18), (b)(5)(C), provided on the recommendation of a Peer Re- view Organization. 42 U.S.C. 1320a–7a(c)(2); 1320b– 1395i–3(b)(3)(B)(ii), 10(c); (g)(2)(A)(i); 1395l(h)(5)(D), (i)(6); 1395m(a)(11)(A), (a)(18), (b)(5)(C), (j)(2)(A)(iii); 1395u(j)(2), (k), (l)(3), (p)(3)(A); (m)(3), (b)(6)(B); 1395y(b)(3)(C), 1395cc(g); 1395dd(d)(1)(A), (B); 1395mm(i)(6)(B); 1395nn(g)(3), (4); 1395ss(d); 1395bbb(c)(1); 1396b(m)(5)(B); 1396r(b)(3)(B)(ii), (g)(2)(A)(i); 1396t(i)(3); 11131(c); 11137(b)(2). (n)(3), 42 U.S.C. 1320a–7(f); 1395l(h)(5)(D); 1395m(a)(11)(A), (b)(5)(C); 1395u(j)(2), (k), (l)(3), (m)(3), (n)(3), (p)(3)(B). 42 CFR part 1003; 42 CFR part 1005. 42 CFR part 1001; 42 CFR part 1005. 42 U.S.C. 1320c–5(b)(4), (5) .............. 42 CFR part 1004; 42 CFR part 1005. 4. Proceedings to impose civil penalties and as- 31 U.S.C. 3803 ................................... 45 CFR part 79. sessments for false claims and statements. Centers for Medicare & Medicaid Services 1. Proceedings to suspend or revoke licenses of 42 U.S.C. 263a(i); 1395w–2 ............... 42 CFR part 493, Subpart R. clinical laboratories. 2. Proceedings provided to a fiscal intermediary be- fore assigning or reassigning Medicare providers to a di U.S.C. 263a(i); 1395w–2 ............... 42 CFR part 493, Subpart R. clinical laboratories. 2. Proceedings provided to a fiscal intermediary be- fore assigning or reassigning Medicare providers to a different fiscal intermediary. 3. Appeals of determinations that an institution or agency is not a Medicare provider of services, and appeals of terminations or nonrenewals of Medicare provider agreements. 4. Proceedings before the Provider Reimbursement Review Board when Department employees ap- pear as counsel for the intermediary. 5. Appeals of CMS determinations that an inter- mediate care facility for the mentally retarded (ICFMR) no longer qualifies as an ICFMR for Medicaid purposes. 42 U.S.C. 1395h(e)(1)–(3) .................. 42 CFR 421.114, 421.128. 42 U.S.C. 1395cc(h); 1395dd(d)(1)(A) 42 CFR 489.53(d); 42 CFR part 498. 42 U.S.C. 1395oo ............................... 42 CFR part 405, Subpart R. 42 U.S.C. 1396i .................................. 42 CFR part 498. 75 Pt. 15 45 CFR Subtitle A (10–1–24 Edition) Proceedings covered Statutory authority Applicable regulations 6. Proceedings to impose civil monetary penalties, assessments, or exclusions from Medicare and State health ca title A (10–1–24 Edition) Proceedings covered Statutory authority Applicable regulations 6. Proceedings to impose civil monetary penalties, assessments, or exclusions from Medicare and State health care programs. 7. Appeals of exclusions from Medicare and State health care programs and/or other programs under the Social Security Act. 42 U.S.C. 1395i–3(h)(2)(B)(ii); 1395l(q)(2)(B)(i); 1395m(a)(11)(A), 1395w–2(b)(2)(A); (c)(4)(C); 1395w–4(g)(1), (g)(3)(B), 1395nn(g)(5); (g)(4)(B)(ii); 1395ss(a)(2), (p)(9)(C), (t)(2); (q)(5)(C), 1395bbb(f)(2)(A); 1396r(h)(3)(C)(ii); 1396r–8(b)(3)(B), (C)(ii); 1396t(j)(2)(C); 1396u(h)(2). (r)(6)(A), (p)(8), (s)(3), 42 U.S.C. 1395l(q)(2)(B)(ii); 1395m(a)(11)(A), (c)(5)(C); 1395w– 4(g)(1), (g)(3)(B), (g)(4)(B)(ii). 42 CFR part 1003. 42 CFR part 498; 42 CFR 1001.107. Food and Drug Administration 1. Proceedings to withdraw approval of new drug 21 U.S.C. 355(e) ................................ 21 CFR part 12; 21 CFR 314.200. applications. 2. Proceedings to withdraw approval of new animal drug applications and medicated feed applica- tions. 21 U.S.C. 360b(e), (m) ....................... 21 CFR part 12; 21 CFR part 514, Subpart B. 3. Proceedings to withdraw a draw approval of new animal drug applications and medicated feed applica- tions. 21 U.S.C. 360b(e), (m) ....................... 21 CFR part 12; 21 CFR part 514, Subpart B. 3. Proceedings to withdraw approval of medical de- 21 U.S.C. 306e(e), (g) ........................ 21 CFR part 12. vice premarket approval applications. 1. Proceedings to enforce Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color or national origin by recipients of Federal financial assistance. 2. Proceedings to enforce section 504 of the Reha- bilitation Act of 1973, which prohibits discrimina- tion on the basis of handicap by recipients of Federal financial assistance. 3. Proceedings to enforce the Age Discrimination Act of 1975, which prohibits discrimination on the basis of age by recipients of Federal financial as- sistance. 4. Proceedings to enforce Title IX of the Education Amendments of 1972, which prohibits discrimina- tion on the basis of sex in certain education pro- grams by recipients of Federal financial assist- ance. Office for Civil Rights 42 U.S.C. 2000d–1 ............................. 45 CFR 80.9. 29 U.S.C. 794a; 42 U.S.C. 2000d–1 .. 45 CFR 84.61 ation pro- grams by recipients of Federal financial assist- ance. Office for Civil Rights 42 U.S.C. 2000d–1 ............................. 45 CFR 80.9. 29 U.S.C. 794a; 42 U.S.C. 2000d–1 .. 45 CFR 84.61. 42 U.S.C. 6104(a) .............................. 45 CFR 91.47. 20 U.S.C. 1682 ................................... 45 CFR 86.71. [69 FR 2847, Jan. 21, 2004] PART 15—UNIFORM RELOCATION ASSISTANCE AND REAL PROP- ERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PRO- GRAMS AUTHORITY: Sec. 213, Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. 91–646, 84 Stat. 1894 (42 U.S.C. 4633) as amended by the Sur- face Transportation and Uniform Relocation Assistance Act of 1987, Title IV of Pub. L. 100–17, 101 Stat. 246–256 (42 U.S.C. 4601 note). § 15.1 Uniform relocation assistance and real property acquisition. Regulations and procedures for com- plying with the Uniform Relocation Assistance and Real Property Acquisi- tion Policies Act of 1970 (Pub. L. 91–646, 84 Stat. 1894, 42 U.S.C. 4601 et seq.), as amended by the Surface Transpor- tation and Uniform Relocation Assist- ance Act of 1987 (Title IV of Pub. L. 100–17, 101 Stat. 246–256, 42 U.S.C. 4601 not 6, 84 Stat. 1894, 42 U.S.C. 4601 et seq.), as amended by the Surface Transpor- tation and Uniform Relocation Assist- ance Act of 1987 (Title IV of Pub. L. 100–17, 101 Stat. 246–256, 42 U.S.C. 4601 note) are set forth in 49 CFR part 24. [52 FR 48026, Dec. 17, 1987 and 54 FR 8912, Mar. 2, 1989] PART 16—PROCEDURES OF THE DE- PARTMENTAL GRANT APPEALS BOARD Sec. 16.1 What this part does. 16.2 Definitions. 16.3 When these procedures become avail- able. 16.4 Summary of procedures below. 16.5 How the Board operates. 76 Dept. of Health and Human Services § 16.4 16.6 Who represents the parties. 16.7 The first steps in the appeal process: The notice of appeal and the Board’s re- sponse. 16.8 The next step in the appeal process: Preparation of an appeal file and written argument. 16.9 How the Board will promote develop- ment of the record. 16.10 Using a conference. 16.11 Hearing. 16.12 The expedited process. 16.13 Powers and responsibilities. 16.14 How Board review is limited. 16.15 Failure to meet deadlines and other requirements. 16.16 Parties to the appeal. 16.17 Ex parte communications (commu- nications outside the record). 16.18 Mediation. 16.19 How to calculate deadlines. 16.20 How to su t deadlines and other requirements. 16.16 Parties to the appeal. 16.17 Ex parte communications (commu- nications outside the record). 16.18 Mediation. 16.19 How to calculate deadlines. 16.20 How to submit material to the Board. 16.21 Record and decisions. 16.22 The effect of an appeal. 16.23 How long an appeal takes. APPENDIX A TO PART 16—WHAT DISPUTES THE BOARD REVIEWS AUTHORITY: 5 U.S.C. 301 and secs. 1, 5, 6, and 7 of Reorganization Plan No. 1 of 1953, 18 FR 2053, 67 Stat. 631 and authorities cited in the Appendix. SOURCE: 46 FR 43817, Aug. 31, 1981, unless otherwise noted. § 16.1 What this part does. This part contains requirements and procedures applicable to certain dis- putes arising under the HHS programs described in appendix A. This part is designed to provide a fair, impartial, quick and flexible process for appeal from written final decisions. This part supplements the provisions in part 75 of this title. [46 FR 43817, Aug. 31, 1981, as amended at 81 FR 3012, Jan. 20, 2016] § 16.2 Definitions. (a) Board means the Departmental Grant Appeals Board of the Depart- ment of Health and Human Services. Reference below to an action of the Board means an action of the Chair, an- § 16.2 Definitions. (a) Board means the Departmental Grant Appeals Board of the Depart- ment of Health and Human Services. Reference below to an action of the Board means an action of the Chair, an- other Board member, or Board staff acting at the direction of a Board member. In certain instances, the pro- visions restrict action to particular Board personnel, such as the Chair or a Board member assigned to a case. (b) Other terms shall have the mean- ing set forth in part 75 of this title, un- less the context below otherwise re- quires. [46 FR 43817, Aug. 31, 1981, as amended at 81 FR 3012, Jan. 20, 2016] § 16.3 When these procedures become available. Before the Board will take an appeal, three circumstances must be present: (a) The dispute must arise under a program which uses the Board for dis- pute resolution, and must meet any special conditions established for that program. An explanation is contained in appendix A. (b) The appellant must have received a final written decision, and must ap- peal that decision within 30 days after receiving it. Details of how final deci- sions are developed and issued, and what must be in them, are contained in 45 CFR 75.374. (c) The appella and must ap- peal that decision within 30 days after receiving it. Details of how final deci- sions are developed and issued, and what must be in them, are contained in 45 CFR 75.374. (c) The appellant must have ex- hausted any preliminary appeal process required by regulation. For example, see 42 CFR part 50 (subpart D) for Pub- lic Health Service programs. In such cases, the final written decision required for the Board’s review is the decision resulting from the preliminary review or appeal process. appendix A contains further details. [46 FR 43817, Aug. 31, 1981, as amended at 62 FR 38218, July 17, 1997; 81 FR 3012, Jan. 20, 2016] § 16.4 Summary of procedures below. The Board’s basic process is review of a written record (which both parties are given ample opportunity to de- velop), consisting of relevant docu- ments and statements submitted by both parties (see § 16.8). In addition, the Board may hold an informal conference (see § 16.10). The informal conference primarily involves questioning of the participants by a presiding Board mem- ber. Conferences may be conducted by telephone conference call. The written record review also may be supple- mented by a hearing involving s questioning of the participants by a presiding Board mem- ber. Conferences may be conducted by telephone conference call. The written record review also may be supple- mented by a hearing involving an op- portunity for examining evidence and witnesses, cross-examination, and oral argument (see § 16.11). A hearing is more expensive and time-consuming than a determination on the written record alone or with an informal con- ference. Generally, the Board will schedule a hearing only if therefore, 77 § 16.5 45 CFR Subtitle A (10–1–24 Edition) the Board determines that there are complex issues or material facts in dis- pute, or that the Board’s review would otherwise be significantly enhanced by a hearing. Where the amount in dispute is $25,000 or less, there are special expe- dited procedures (see § 16.12 of this part). In all cases, the Board has the flexibility to modify procedures to en- sure fairness, to avoid delay, and to ac- commodate the peculiar needs of a given case. The Board makes maximum feasible use of preliminary informal steps to refine issues and to encourage resolution by the parties. The Board also has the capability to provide me- diation services (see § 16.18). § makes maximum feasible use of preliminary informal steps to refine issues and to encourage resolution by the parties. The Board also has the capability to provide me- diation services (see § 16.18). § 16.5 How the Board operates. (a) The Board’s professional staff consists of a Chair (who is also a Board member) and full- and part-time Board members, all appointed by the Sec- retary; and a staff of employees and consultants who are attorneys or per- sons from other relevant disciplines, such as accounting. (b) The Chair will assign a Board member to have lead responsibility for each case (the ‘‘presiding Board mem- ber’’). The presiding Board member will conduct the conference or hearing, if one is held. Each decision of the Board is issued by the presiding Board member and two other Board members. (c) The Board staff assists the pre- siding Board member, and may request information from the parties; conduct telephone conference calls to request information, to clarify issues, or to schedule events; and assist in devel- oping decisions and other documents in a case. (d) The Chair will assure that no Board or staff member will participate in a case where his or her impartiality coul hedule events; and assist in devel- oping decisions and other documents in a case. (d) The Chair will assure that no Board or staff member will participate in a case where his or her impartiality could reasonably be questioned. (e) The Board’s powers and respon- sibilities are set forth in § 16.13. § 16.6 Who represents the parties. The appellant’s notice of appeal, or the first subsequent submission to the Board, should specify the name, ad- dress and telephone number of the ap- pellant’s representative. In its first submission to the Board and the appel- lant, the respondent (i.e., the federal party to the appeal) should specify the name, address and telephone number of the respondent’s representative. § 16.7 The first steps in the appeal process: The notice of appeal and the Board’s response. (a) As explained in 45 CFR 75.374, a prospective appellant must submit a notice of appeal to the Board within 30 days after receiving the final decision. The notice of appeal must include a copy of the final decision, a statement of the amount in dispute in the appeal, and a brief statement of why the deci- sion is wrong. (b) Within ten days after receiving the notice of appeal, the Board w y of the final decision, a statement of the amount in dispute in the appeal, and a brief statement of why the deci- sion is wrong. (b) Within ten days after receiving the notice of appeal, the Board will send an acknowledgment, enclose a copy of these procedures, and advise the appellant of the next steps. The Board will also send a copy of the no- tice of appeal, its attachments, and the Board’s acknowledgment to the re- spondent. If the Board Chair has deter- mined that the appeal does not meet the conditions of § 16.3 or if further in- formation is needed to make this de- termination, the Board will notify the parties at this point. [46 FR 43817, Aug. 31, 1981, as amended at 81 FR 3012, Jan. 20, 2016] § 16.8 The next step in the appeal proc- ess: Preparation of an appeal file and written argument. Except in expedited cases (generally those of $25,000 or less; see § 16.12 for de- tails), the appellant and the respondent each participate in developing an ap- peal file for the Board to review. Each also submits written argument in sup- port of its position. The responsibil- ities of each are as follows: (a) The appellant’s responsibility. With- in 30 days after receiving the acknow review. Each also submits written argument in sup- port of its position. The responsibil- ities of each are as follows: (a) The appellant’s responsibility. With- in 30 days after receiving the acknowl- edgment of the appeal, the appellant shall submit the following to the Board (with a copy to the respondent): (1) An appeal file containing the doc- uments supporting the claim, tabbed and organized chronologically and ac- companied by an indexed list identi- fying each document. The appellant should include only those documents which are important to the Board’s de- cision on the issues in the case. 78 Dept. of Health and Human Services § 16.10 (2) A written statement of the appel- lant’s argument concerning why the re- spondent’s final decision is wrong (ap- pellant’s brief). (b) The respondent’s responsibility. Within 30 days after receiving the ap- pellant’s submission under paragraph (a) of this section, the respondent shall submit the following to the Board (with a copy to the appellant): (1) A supplement to the appeal file containing any additional documents supporting the respondent’s position, organized and indexed as indicated under paragraph (a) of this section. The respo ellant): (1) A supplement to the appeal file containing any additional documents supporting the respondent’s position, organized and indexed as indicated under paragraph (a) of this section. The respondent should avoid submitting du- plicates of documents submitted by the appellant. (2) A written statement (respondent’s brief) responding to the appellant’s brief. (c) The appellant’s reply. Within 15 days after receiving the respondent’s submission, the appellant may submit a short reply. The appellant should avoid repeating arguments already made. (d) Cooperative efforts. Whenever pos- sible, the parties should try to develop a joint appeal file, agree to preparation of the file by one of them, agree to facts to eliminate the need for some documents, or agree that one party will submit documents identified by the other. (e) Voluminous documentation. Where submission of all relevant documents would lead to a voluminous appeal file (for example where review of a disputed audit finding of inadequate documenta- tion might involve thousands of re- ceipts), the Board will consult with the parties about how to reduce the size of the file. § 16.9 How the Board will promote de- velopment of inadequate documenta- tion might involve thousands of re- ceipts), the Board will consult with the parties about how to reduce the size of the file. § 16.9 How the Board will promote de- velopment of the record. The Board may, at the time it ac- knowledges an appeal or at any appro- priate later point, request additional documents or information; request briefing on issues in the case; issue or- ders to show cause why a proposed finding or decision of the Board should not become final; hold preliminary conferences (generally by telephone) to establish schedules and refine issues; and take such other steps as the Board determines appropriate to develop a prompt, sound decision. § 16.10 Using a conference. (a) Once the Board has reviewed the appeal file, the Board may, on its own or in response to a party’s request, schedule an informal conference. The conference will be conducted by the presiding Board member. The purposes of the conference are to give the par- ties an opportunity to make an oral presentation and the Board an oppor- tunity to clarify issues and question both parties about matters which the Board may not yet fully understand from the record. (b) If the Board has dec ake an oral presentation and the Board an oppor- tunity to clarify issues and question both parties about matters which the Board may not yet fully understand from the record. (b) If the Board has decided to hold a conference, the Board will consult or correspond with the parties to schedule the conference, identify issues, and dis- cuss procedures. The Board will iden- tify the persons who will be allowed to participate, along with the parties’ rep- resentatives, in the conference. The parties can submit with their briefs under § 16.8 a list of persons who might participate with them, indicating how each person is involved in the matter. If the parties wish, they may also sug- gest questions or areas of inquiry which the Board may wish to pursue with each participant. (c) Unless the parties and the Board otherwise agree, the following proce- dures apply: (1) Conferences will be recorded at Department expense. On request, a party will be sent one copy of the tran- script. The presiding Board member will insure an orderly transcript by controlling the sequence and identi- fication of speakers. (2) Only in exceptional circumstances will documents be received at a con- ference. Inquir Board member will insure an orderly transcript by controlling the sequence and identi- fication of speakers. (2) Only in exceptional circumstances will documents be received at a con- ference. Inquiry will focus on material in the appeal file. If a party finds that further documents should be in the record for the conference, the party should supplement the appeal file, sub- mitting a supplementary index and copies of the documents to the Board and the other party not less than ten days prior to the conference. (3) Each party’s representative may make an oral presentation. Generally, the only oral communications of other participants will consist of statements requested by the Board or responses to 79 § 16.11 45 CFR Subtitle A (10–1–24 Edition) the Board’s questions. The Board will allow reply comment, and may allow short closing statements. On request, the Board may allow the participants to question each other. (4) There will be no post-conference submissions, unless the Board deter- mines they would be helpful to resolve the case. The Board may require or allow the parties to submit proposed findings and conclusions. § 16.11 Hearing. (a) Electing a hearing. If the appellant bel - mines they would be helpful to resolve the case. The Board may require or allow the parties to submit proposed findings and conclusions. § 16.11 Hearing. (a) Electing a hearing. If the appellant believes a hearing is appropriate, the appellant should specifically request one at the earliest possible time (in the notice of appeal or with the appeal file). The Board will approve a request (and may schedule a hearing on its own or in response to a later request) if it finds there are complex issues or mate- rial facts in dispute the resolution of which would be significantly aided by a hearing, or if the Board determines that its decisionmaking otherwise would be enhanced by oral presen- tations and arguments in an adversary, evidentiary hearing. The Board will also provide a hearing if otherwise re- quired by law or regulation. (b) Preliminary conference before the hearing. The Board generally will hold a prehearing conference (which may be conducted by telephone conference call) to consider any of the following: the possibility of settlement; simpli- fying and clarifying issues; stipulations and admissions; limitations on evi- dence and witnesses that will be pre- sented at the he nsider any of the following: the possibility of settlement; simpli- fying and clarifying issues; stipulations and admissions; limitations on evi- dence and witnesses that will be pre- sented at the hearing; scheduling the hearing; and any other matter that may aid in resolving the appeal. Nor- mally, this conference will be con- ducted informally and off the record; however, the Board, after consulting with the parties, may reduce results of the conference to writing in a docu- ment which will be made part of the record, or may transcribe proceedings and make the transcript part of the record. (c) Where hearings are held. Hearings generally are held in Washington, DC. In exceptional circumstances, the Board may hold the hearing at an HHS Regional Office or other convenient fa- cility near the appellant. (d) Conduct of the hearing. (1) The pre- siding Board member will conduct the hearing. Hearings will be as informal as reasonably possible, keeping in mind the need to establish an orderly record. The presiding Board member generally will admit evidence unless it is deter- mined to be clearly irrelevant, imma- terial or unduly repetitious, so the par- ties should avoid frequent obje rly record. The presiding Board member generally will admit evidence unless it is deter- mined to be clearly irrelevant, imma- terial or unduly repetitious, so the par- ties should avoid frequent objections to questions and documents. Both sides may make opening and closing state- ments, may present witnesses as agreed upon in the prehearing con- ference, and may cross-examine. Since the parties have ample opportunity to develop a complete appeal file, a party may introduce an exhibit at the hear- ing only after explaining to the satis- faction of the presiding Board member why the exhibit was not submitted ear- lier (for example, because the informa- tion was not available). (2) The Board may request the par- ties to submit written statements of witnesses to the Board and each other prior to the hearing so that the hearing will primarily be concerned with cross- examination and rebuttal. (3) False statements of a witness may be the basis for criminal prosecution under sections 287 and 1001 of Title 18 of the United States Code. (4) The hearing will be recorded at Department expense. (e) Procedures after the hearing. The Board will send one copy of the tran- script to each party as 1001 of Title 18 of the United States Code. (4) The hearing will be recorded at Department expense. (e) Procedures after the hearing. The Board will send one copy of the tran- script to each party as soon as it is re- ceived by the Board. At the discretion of the Board, the parties may be re- quired or allowed to submit post-hear- ing briefs or proposed findings and con- clusions (the parties will be informed at the hearing). A party should note any major prejudicial transcript errors in an addendum to its post-hearing brief (or if no brief will be submitted, in a letter submitted within a time limit set by the Board). § 16.12 The expedited process. (a) Applicability. Where the amount in dispute is $25,000 or less, the Board will use these expedited procedures, unless the Board Chair determines otherwise under paragraph (b) of this section. If the Board and the parties agree, the Board may use these procedures in cases of more than $25,000. 80 Dept. of Health and Human Services § 16.15 (b) Exceptions. If there are unique or unusually complex issues involved, or other exceptional circumstances, the Board may use additional procedures. (c) Regular expedited procedures. (1) Within 30 5 (b) Exceptions. If there are unique or unusually complex issues involved, or other exceptional circumstances, the Board may use additional procedures. (c) Regular expedited procedures. (1) Within 30 days after receiving the Board’s acknowledgment of the appeal (see § 16.7), each party shall submit to the Board and the other party any rel- evant background documents (orga- nized as required under § 16.8), with a cover letter (generally not to exceed ten pages) containing any arguments the party wishes to make. (2) Promptly after receiving the par- ties’ submissions, the presiding Board member will arrange a telephone con- ference call to receive the parties’ oral comments in response to each other’s submissions. After notice to the par- ties, the Board will record the call. The Board member will advise the parties whether any opportunities for further briefing, submissions or oral presen- tations will be established. Cooperative efforts will be encouraged (see § 16.8(d)). (3) The Board may require the parties to submit proposed findings and con- clusions. (d) Special expedited procedures where there has already been review. Some HHS components (for example, the Public Health Servi d may require the parties to submit proposed findings and con- clusions. (d) Special expedited procedures where there has already been review. Some HHS components (for example, the Public Health Service) use a board or other relatively independent reviewing authority to conduct a formal prelimi- nary review process which results in a written decision based on a record in- cluding documents or statements pre- sented after reasonable notice and op- portunity to present such material. In such cases, the following rules apply to appeals of $25,000 or less instead of those under paragraph (c) of this sec- tion: (1) Generally, the Board’s review will be restricted to whether the decision of the preliminary review authority was clearly erroneous. But if the Board de- termines that the record is inadequate, or that the procedures under which the record was developed in a given in- stance were unfair, the Board will not be restricted this way. (2) Within 30 days after receiving the Board’s acknowledgment of appeal (see § 16.7), the parties shall submit the fol- lowing: (i) The appellant shall submit to the Board and the respondent a statement why the decision was clearly erro- neous. Unless owledgment of appeal (see § 16.7), the parties shall submit the fol- lowing: (i) The appellant shall submit to the Board and the respondent a statement why the decision was clearly erro- neous. Unless allowed by the Board after consultation with the respondent, the appellant shall not submit further documents. (ii) The respondent shall submit to the Board the record in the case. If the respondent has reason to believe that all materials in the record already are in the possession of the appellant, the respondent need only send the appel- lant a list of the materials submitted to the Board. (iii) The respondent may, if it wishes, submit a statement why the decision was not clearly erroneous. (3) The Board, in its discretion, may allow or require the parties to present further arguments or information. § 16.13 Powers and responsibilities. In addition to powers specified else- where in these procedures, Board mem- bers have the power to issue orders (in- cluding ‘‘show cause’’ orders); to exam- ine witnesses; to take all steps nec- essary for the conduct of an orderly hearing; to rule on requests and mo- tions, including motions to dismiss; to grant extensions of time for good rea- so exam- ine witnesses; to take all steps nec- essary for the conduct of an orderly hearing; to rule on requests and mo- tions, including motions to dismiss; to grant extensions of time for good rea- sons; to dismiss for failure to meet deadlines and other requirements; to close or suspend cases which are not ready for review; to order or assist the parties to submit relevant information; to remand a case for further action by the respondent; to waive or modify these procedures in a specific case with notice to the parties; to reconsider a Board decision where a party promptly alleges a clear error of fact or law; and to take any other action necessary to resolve disputes in accordance with the objectives of these procedures. § 16.14 How Board review is limited. The Board shall be bound by all ap- plicable laws and regulations. § 16.15 Failure to meet deadlines and other requirements. (a) Since one of the objectives of ad- ministrative dispute resolution is to provide a decision as fast as possible consistent with fairness, the Board will not allow parties to delay the process unduly. The Board may grant exten- sions of time, but only if the party gives a good reason for the delay. 8 as possible consistent with fairness, the Board will not allow parties to delay the process unduly. The Board may grant exten- sions of time, but only if the party gives a good reason for the delay. 81 § 16.16 45 CFR Subtitle A (10–1–24 Edition) (b) If the appellant fails to meet any filing or procedural deadlines, appeal file or brief submission requirements, or other requirements established by the Board, the Board may dismiss the appeal, may issue an order requiring the party to show cause why the appeal should not be dismissed, or may take other action the Board considers appro- priate. (c) If the respondent fails to meet any such requirements, the Board may issue a decision based on the record submitted to that point or take such other measures as the Board considers appropriate. § 16.16 Parties to the appeal. (a) The only parties to the appeal are the appellant and the respondent. If the Board determines that a third per- son is a real party in interest (for ex- ample, where the major impact of an audit disallowance would be on the grantee’s contractor, not on the grant- ee), the Board may allow the third per- son to present the case on appeal for the appellant or to appear w major impact of an audit disallowance would be on the grantee’s contractor, not on the grant- ee), the Board may allow the third per- son to present the case on appeal for the appellant or to appear with a party in the case, after consultation with the parties and if the appellant does not object. (b) The Board may also allow other participation, in the manner and by the deadlines established by the Board, where the Board decides that the inter- venor has a clearly identifiable and substantial interest in the outcome of the dispute, that participation would sharpen issues or otherwise be helpful in resolution of the dispute, and that participation would not result in sub- stantial delay. § 16.17 Ex parte communications (com- munications outside the record). (a) A party shall not communicate with a Board or staff member about matters involved in an appeal without notice to the other party. If such com- munication occurs, the Board will dis- close it to the other party and make it part of the record after the other party has an opportunity to comment. Board members and staff shall not consider any information outside the record (see § 16.21 for what the record consists of) about matt