section_id,title_number,title_name,chapter,subchapter,part_number,part_name,subpart,subpart_name,section_number,section_heading,agency,authority,source_citation,amendment_citations,full_text
14:14:4.0.2.7.3.0.24.1,14,Aeronautics and Space,III,A,402,PART 402—GENERAL REQUIREMENTS,,,,§ 402.1 Applicability and definitions.,FAA,,,,"(a) This part applies to any person subject to the requirements in subchapter C of this chapter.

(b) For purposes of this part, “document in any format” includes documents (electronic or physical), and also other tangible items, such as data plates or marked parts."
14:14:4.0.2.7.3.0.24.2,14,Aeronautics and Space,III,A,402,PART 402—GENERAL REQUIREMENTS,,,,"§ 402.3 Falsification, reproduction, alteration, or omission.",FAA,,,,"(a) No person may make or cause to be made any fraudulent or intentionally false statement in:

(1) Any document in any format, submitted under any provision referenced in § 402.1 of this part, consisting of or related to any acceptance, application, approval, authorization, permit, license, waiver, record, report, or similar; or

(2) Any document in any format that is kept, made, or used to show compliance with any requirement under the provisions referenced in § 402.1.

(b) No person may make or cause to be made any production, reproduction, or alteration, for fraudulent purpose, of:

(1) Any document in any format, submitted or granted under any provision referenced in § 402.1, consisting of or related to any acceptance, application, approval, authorization, permit, license, waiver, record, report, or similar; or

(2) Any document in any format that is kept, made, or used to show compliance with any requirement under the provisions referenced in § 402.1.

(c) No person may knowingly omit or cause to be omitted a material fact in:

(1) Any document in any format, submitted under any provision referenced in § 402.1, consisting of or related to any acceptance, application, approval, authorization, permit, license, waiver, record, report, or similar; or

(2) Any document in any format that is kept, made, or used to show compliance with any requirement under the provisions referenced in § 402.1.

(d) The commission by any person of an act prohibited under paragraphs (a) through (c) of this section is a basis for:

(1) Denying, suspending, modifying, revoking, rescinding, removing, or withdrawing any acceptance, application, approval, authorization, permit, license, waiver, or similar, issued or granted by the Administrator and held by that person; or

(2) A civil penalty."
14:14:4.0.2.7.3.0.24.3,14,Aeronautics and Space,III,A,402,PART 402—GENERAL REQUIREMENTS,,,,§ 402.5 Incorrect statement or omission.,FAA,,,,"(a) The following may serve as a basis for suspending, modifying, revoking, rescinding, removing, withdrawing, or denying an acceptance, application, approval, authorization, permit, license, waiver, or similar, issued or granted by the Administrator:

(1) An incorrect statement or omission of fact, by any person, in or from any document in any format, submitted under any provision referenced in § 402.1, that was material to the issuance, validity, or granting of that acceptance, application, approval, authorization, permit, license, waiver, or similar; or

(2) An incorrect statement or omission of a material fact by any person, in or from any document in any format that is kept, made, or used to show compliance with any requirement under the provisions referenced in § 402.1, that was material to the issuance, validity, or granting of that acceptance, application, approval, authorization, permit, license, waiver, or similar.

(b) [Reserved]"
17:17:5.0.2.1.3.0.43.1,17,Commodity and Securities Exchanges,IV,A,402,PART 402—FINANCIAL RESPONSIBILITY,,,,§ 402.1 Application of part to registered brokers and dealers and financial institutions; special rules for futures commission merchants and government securities interdealer brokers; effective date.,SEC,,,"[52 FR 27931, July 24, 1987, as amended at 60 FR 11024, Mar. 1, 1995; 71 FR 54411, Sept. 15, 2006; 79 FR 38455, July 8, 2014]","(a)  Application of part.  This part applies to all government securities brokers and dealers, except as otherwise provided herein.

(b)  Registered brokers or dealers.  This part does not apply to a registered broker or dealer (including an OTC derivatives dealer) that is subject to § 240.15c3-1 of this title (SEC Rule 15c3-1).

(c)  Financial institutions.  This part does not apply to a government securities broker or dealer that is a financial institution and that is:

(1) Subject to the rules and regulations of its appropriate regulatory agency concerning capital requirements, or

(2) A branch or agency of a foreign bank subject to regulation, supervision, and examination by state or Federal authorities having regulatory or supervisory authority over commercial bank and trust companies.

(d)  Futures commission merchants.  A futures commission merchant subject to § 1.17 of this title that is a government securities broker or dealer but is not a registered broker or dealer shall not be subject to the limitations of § 402.2 but rather to the capital requirement of § 1.17 or § 240.15c3-1, except paragraph (e)(3) thereof, of this title, whichever is greater.

(e)  Government securities interdealer broker.  (1) A government securities interdealer broker, as defined in paragraph (e)(2) of this section, may, with the prior written consent of the Secretary, elect not to be subject to the limitations of § 402.2 but rather to be subject to the requirements of § 240.15c3-1 of this title (SEC Rule 15c3-1), except paragraphs (c)(2)(ix) and (e)(3) thereof, and paragraphs (e)(3) through (8) of this section by filing such election in writing with its designated examining authority. A government securities interdealer broker may not revoke such election without the written consent of its designated examining authority.

(2)(i)  Government securities interdealer broker  means an entity engaged exclusively in business as a broker that effects, on an initially fully disclosed or identified group basis, transactions in government securities for counterparties that are government securities brokers or dealers who have registered or given notice pursuant to section 15C(a)(1) of the Act (15 U.S.C. 78o-5(a)(1)), and that promptly transmits all funds and delivers all securities received in connection with its activities as a government securities interdealer broker and does not otherwise hold funds or securities for or owe money or securities to its counterparties and, except as provided in paragraph (e)(2)(ii) of this section, does not have or maintain any government securities in its proprietary or other accounts. For the purpose of this paragraph (e)(2)(i), “identified group basis” means that a counterparty has consented to the identity of the specific group of entities from which the other counterparty is chosen.

(ii) A government securities interdealer broker may have or maintain government securities in its proprietary or other accounts only as a result of:

(A) Engaging in overnight reverse repurchase or securities borrowed transactions solely for the purpose of facilitating the process of clearing government securities transactions;

(B) Engaging in overnight repurchase or securities loaned transactions solely for the purpose of reducing its financing expense in connection with the clearance of government securities transactions;

(C) Subordinated loans subject to satisfactory subordination agreements pursuant to § 240.l5c3-1(d) of this title;

(D) Collateral or depository requirements of a clearing corporation or association with which it participates in the clearance of government securities transactions; or

(E) The investment of its excess cash.

The maturities of any government securities held or maintained under paragraph (e)(2)(ii) (C), (D), or (E) of this section may not exceed one year.

(3) In order to qualify to operate under this paragraph (e), a government securities interdealer broker shall at all times have and maintain net capital, as defined in § 240.15c3-1(c)(2) of this title with the modifications of this paragraph (e), of not less than $1,000,000.

(4) For purposes of this paragraph (e), a government securities interdealer broker need not deduct loans to commercial banks for one business day of immediately available funds (commonly referred to as “sales of federal funds”) held by the government securities interdealer broker in connection with the clearance of securities on the day the loan is made.

(5) For purposes of this paragraph (e), a government securities interdealer broker need not deduct net pair-off receivables and money differences until the close of business of the third business day following the day the funds are due and give-up receivables outstanding no more than 30 days from the billing date, which shall be no later than the last day of the month in which they arise, as otherwise would be required under § 240.15c3-1(c)(2)(iv)(B) of this title.

(6) For purposes of this paragraph (e), a government securities interdealer broker shall deduct from net worth 
 1/4  of 1 percent of the contract value of each government securities failed-to-deliver contract which is outstanding 5 business days or longer. Such deduction shall be increased by any excess of the contract price of the failed-to-deliver contract over the market value of the underlying security.

(7) For purposes of this paragraph (e), a government securities interdealer broker may exclude from its aggregate indebtedness computation indebtedness adequately collateralized by government securities outstanding for not more than one business day and offset by government securities failed to deliver of the same issue and quantity. In no event may a government securities interdealer broker exclude any overnight bank loan attributable to the same government securities failed-to-deliver contract for more than one business day. A government securities interdealer broker need not deduct from net worth the amount by which the market value of securities failed to receive outstanding longer than thirty (30) calendar days exceeds the contract value of those failed to receive as required by § 240.15c3-1(c)(2)(iv)(E) of this title.

(8)(i) For purposes of this paragraph (e), a government securities interdealer broker shall deduct from net worth 5 percent of its net exposure to each counterparty.

(ii)  Net exposure.  For purposes of this paragraph (e), net exposure shall equal:

(A) The sum of the dollar amount of funds, debt instruments, other securities, and other inventory at risk, in the first instance, to the government securities interdealer broker in the event of the counterparty's default,

(B) Reduced, but not to less than zero, by the sum of:

( 1 ) The dollar amount of funds, debt instruments, other securities, and other inventory at risk, in the first instance, to the counterparty in the event of the government securities interdealer broker's default;

( 2 ) The deductions taken from net worth for unsecured receivables, repurchase and reverse repurchase deficits, aged fails to deliver, and aged fails to receive arising from transactions with the counterparty;

( 3 ) Demand deposits in the case where the counterparty is a commercial bank;

( 4 ) Loans for one business day of immediately available funds (commonly referred to as “sales of federal funds”) held by the government securities interdealer broker in connection with the clearance of securities on the day the loan is made in the case where the counterparty is a commercial bank;

( 5 ) Custodial holdings of securities in the case where the counterparty is a clearing bank or clearing broker of the government securities interdealer broker; and

( 6 ) Exposure to a counterparty due to holding marketable instruments subject to market risk haircuts under appendix A to this section (§ 402.2a) for which the counterparty is the obligor.

(9) On the application of the government securities interdealer broker, the designated examining authority may extend the periods of time in this paragraph (e) if it determines that the extension is warranted because of exceptional circumstances and that the government securities interdealer broker is acting in good faith.

(f) This part shall be effective July 25, 1987."
17:17:5.0.2.1.3.0.43.2,17,Commodity and Securities Exchanges,IV,A,402,PART 402—FINANCIAL RESPONSIBILITY,,,,§ 402.2 Capital requirements for registered government securities brokers and dealers.,SEC,,,"[52 FR 27931, July 24, 1987, as amended at 53 FR 28984, Aug. 1, 1988; 60 FR 11024, Mar. 1, 1995; 79 FR 38455, July 8, 2014]","(a)  General rule.  No government securities broker or dealer shall permit its liquid capital to be below an amount equal to 120 percent of total haircuts as defined in paragraph (g) of this section.

(b)(1)  Minimum liquid capital for brokers or dealers that carry customer accounts.  Notwithstanding the provisions of paragraph (a) of this section, a government securities broker or dealer that carries customer or broker or dealer accounts and receives or holds funds or securities for those persons within the meaning of § 240.15c3-1(a)(2)(i) of this title, shall have and maintain liquid capital in an amount not less than $250,000, after deducting total haircuts as defined in paragraph (g) of this section.

(2)  Minimum liquid capital for brokers or dealers that carry customer accounts, but do not generally hold customer funds or securities.  Notwithstanding the provisions of paragraphs (a) and (b)(1) of this section, a government securities broker or dealer that carries customer or broker or dealer accounts and is exempt from the provisions of § 240.15c3-3 of this title, as made applicable to government securities brokers and dealers by § 403.4 of this part, pursuant to paragraph (k)(2)(i) thereof (17 CFR 240.15c3-3(k)(2)(i)), shall have and maintain liquid capital in an amount not less than $100,000, after deducting total haircuts as defined in paragraph (g) of this section.

(c)(1)  Minimum liquid capital for introducing brokers that receive securities.  Notwithstanding the provisions of paragraphs (a) and (b) of this section, a government securities broker or dealer that introduces on a fully disclosed basis transactions and accounts of customers to another registered or noticed government securities broker or dealer but does not receive, directly or indirectly, funds from or for, or owe funds to, customers, and does not carry the accounts of, or for, customers shall have and maintain liquid capital in an amount not less than $50,000, after deducting total haircuts as defined in paragraph (g) of this section. A government securities broker or dealer operating pursuant to this paragraph (c)(1) may receive, but shall not hold customer or other broker or dealer securities.

(2)  Minimum liquid capital for introducing brokers that do not receive or handle customer funds or securities.  Notwithstanding the provisions of paragraphs (a), (b), and (c)(1) of this section, a government securities broker or dealer that does not receive, directly or indirectly, or hold funds or securities for, or owe funds or securities to, customers, and does not carry accounts of, or for, customers and that effects ten or fewer transactions in securities in any one calendar year for its own investment account shall have and maintain liquid capital in an amount not less than $25,000, after deducting total haircuts as defined in paragraph (g) of this section.

(d)  Liquid capital.  “Liquid capital” means net capital as defined in § 240.15c3-1(c)(2) of this title with the following modifications:

(1) The percentages used to calculate the deductions for failed to deliver contracts required by § 240.15c3-1(c)(2)(ix) of this title when the underlying instrument is a Treasury market risk instrument as defined in paragraph (e) of this section are the appropriate net position haircut factors specified in paragraph (f)(2) of this section;

(2) The percentages used to calculate deductions required by § 240.15c3-1(c)(2)(iv)(B) of this title for securities that are Treasury market risk instruments are the appropriate net position haircut factors specified in paragraph (f)(2) of this section;

(3) The deduction required by § 240.15c3-1(c)(2)(iv)(F)( 3 )( i ) of this title relating to repurchase agreement deficits shall be determined without reference to § 240.15c3-1(c)(2)(iv)(F)( 3 )( i )( B ) or § 240.15c3-1(c)(2)(iv)(F)( 3 )( i )( C );

(4) The deductions from net worth required by §§ 240.15c3-1 (c)(2)(vi) and (c)(2)(viii) of this title and the adjustments to net worth set forth in § 240.15c3-1a and § 240.15c3-1b of this title (Appendices A and B to SEC Rule 15c3-1) are omitted;

(5) Net pair-off receivables and money differences need not be deducted as otherwise would be required under § 240.15c3-1(c)(2)(iv)(B) of this title until the close of business of the third business day following the day the funds are due;

(6) Give-up receivables outstanding no more than 30 days from the billing date, which shall be no later than the last day of the month in which they arise, need not be deducted as otherwise would be required under § 240.15c3-1(c)(2)(iv)(B) of this title;

(7) Loans to commercial banks for one business day of immediately available funds (commonly referred to as “sales of federal funds”) held by the government securities broker or dealer in connection with the clearance of securities on the day the loan is made need not be deducted; and

(8) In determining net worth, all long and short positions in unlisted options that are Treasury market risk instruments shall be evaluated in the manner set forth in § 240.15c3-1(c)(2)(i)(B)( 1 ) and not in the manner set forth in § 240.15c3-1(c)(2)(i)(B)( 2 ) of this title.

(e)  Treasury market risk instruments.  (1) For purposes of this part, the term “Treasury market risk instrument” means the following dollar-denominated securities, debt instruments, and derivative instruments:

(i) Government securities, except equity securities and those mortgage-backed securities described in paragraph (e)(2) of this section;

(ii) Zero-coupon receipts or certificates based on marketable Treasury notes or bonds;

(iii) Marketable certificates of deposit of no more than one year to maturity;

(iv) Bankers acceptances;

(v) Commercial paper of no more than one year to maturity and which has only a minimal amount of credit risk as determined by the government securities broker or dealer pursuant to reasonably designed written policies and procedures the government securities broker or dealer establishes, maintains, and enforces to assess and monitor creditworthiness. These policies and procedures should result in creditworthiness assessments that typically are consistent with market data;

(vi) Securities, other than equity securities, issued by international organizations that have a statutory exemption from the registration requirements of the Securities Act of 1933 and the Securities Exchange Act of 1934 provided their changes in yield are closely correlated to the changes in yield of similar Treasury securities, including STRIPS;

(vii) Futures, forwards, and listed options on Treasury market risk instruments described in paragraphs (e)(1)(i)-(vi) of this section or on time deposits whose changes in yield are closely correlated with the Treasury market risk instruments described in paragraph (e)(1)(iii) of this section, settled on a cash or delivery basis;

(viii) Options on those futures contracts described in paragraph (e)(1)(vii) of this section, settled on a cash or delivery basis; and

(ix) Unlisted options on marketable Treasury bills, notes or bonds.

(2) “Treasury market risk instrument” does not include mortgage-backed securities that do not pass through to each security holder on a pro rata basis a distribution based on the monthly payments and prepayments of principal and interest on the underlying pool of mortgage collateral less fees and expenses.

(f)(1)  Haircut categories.  For purposes of this part, the applicable categories within which non-zero-coupon and zero-coupon Treasury market risk instruments are classified are:

(2)  Haircut factors.  For purposes of this part, the applicable net position and offset haircut factors to be used in the calculation of the Treasury market risk haircut are as follows:

(3)  Category pair hedging disallowance haircut factors.  For purposes of this part, the applicable category pair hedging disallowance haircut factors to be used in the calculation of the Treasury market risk haircut are as follows:

(g)  Total haircuts.  “Total haircuts” equals the sum of the credit risk haircut and the market risk haircut.

(1)  Credit risk haircut.  The “credit risk haircut” equals the sum of the total counterparty exposure haircut, the total concentration of credit haircut and the credit volatility haircut.

(i)  Net credit exposure.  For purposes of this part, net credit exposure shall equal:

(A) The sum of the dollar amount of funds, debt instruments, other securities, and other inventory at risk to the government securities broker or dealer in the event of the counterparty's default and the market value of purchased unlisted options written by the counterparty that are Treasury market risk instruments,

(B) Reduced, but not to less than zero, by the sum of:

( 1 ) The dollar amount of funds, debt instruments, other securities, and other inventory at risk to the counterparty in the event of the government securities broker's or dealer's default and the market value of unlisted options written by the government securities broker or dealer and held by the counterparty that are Treasury market risk instruments;

( 2 ) The deductions taken from net worth for unsecured receivables, repurchase and reverse repurchase agreement deficits, aged fails to deliver, and aged fails to receive arising from transactions with the counterparty;

( 3 ) Demand deposits in the case where the counterparty is a commercial bank;

( 4 ) Loans for one business day of immediately available funds (commonly referred to as “sales of federal funds”) held by the government securities broker or dealer in connection with the clearance of securities on the day the loan is made in the case where the counterparty is a commercial bank;

( 5 ) Custodial holdings of securities in the case where the counterparty is a clearing bank or clearing broker of the government securities broker or dealer; and

( 6 ) Exposure to a counterparty due to holding marketable instruments subject to market risk haircuts under appendix A to this section (§ 402.2a) for which the counterparty is the obligor.

(ii)  Total counterparty exposure haircut.  The “total counterparty exposure haircut” equals the sum of the counterparty exposure haircuts taken for all counterparties except a Federal Reserve Bank, of the government securities broker or dealer. The “counterparty exposure haircut” equals the product of a counterparty exposure haircut factor of 5 percent and the net credit exposure to a single counterparty not in excess of 15 percent of the government securities broker's or dealer's liquid capital.

(iii)  Total concentration of credit haircut.  The “total concentration of credit haircut” equals the sum of the concentration of credit haircuts taken for all counterparties of the government securities broker or dealer. The “concentration of credit haircut” equals the product of a concentration of credit haircut factor of 25 percent and the amount by which the net credit exposure to a single counterparty is in excess of 15 percent of the government securities broker's or dealer's liquid capital.

(iv)  Credit volatility haircut.  The “credit volatility haircut” equals the product of a credit volatility haircut factor of 0.15 percent and the dollar amount of the larger of the gross long position or gross short position in those Treasury market risk instruments described in paragraphs (e)(1)(iii), (iv) and (v) of this section that have a term to maturity greater than 44 days, including futures and forwards thereon, settled on a cash or delivery basis, and futures and forwards on time deposits described in paragraph (e)(1)(vii) of this section, that have a term to maturity greater than 44 days, settled on a cash or delivery basis.

(2)  Market risk haircut.  The “market risk haircut” equals the sum of the Treasury market risk haircut and the other securities haircut, calculated in accordance with the provisions of appendix A of this section, § 402.2a.

(h)  Debt-equity requirements.  No government securities broker or dealer shall permit the total of outstanding principal amounts of its satisfactory subordination agreements as defined in § 240.15c3-1d of this title (appendix D to SEC Rule 15c3-1) modified as provided in appendix D to this section, § 402.2d, to exceed the allowable levels set forth in § 240.15c3-1(d) of this title.

(i)  Provisions relating to the withdrawal of equity capital —(1)  Notice provisions.  No equity capital of the government securities broker or dealer or a subsidiary or affiliate consolidated pursuant to appendix C to this section, § 402.2c, may be withdrawn by action of a stockholder or partner, or by redemption or repurchase of shares of stock by any of the consolidated entities or through the payment of dividends or any similar distribution, nor may any unsecured advance or loan be made to a stockholder, partner, sole proprietor, employee or affiliate without providing written notice, given in accordance with paragraph (i)(1)(iv) of this section, when specified in paragraphs (i)(1) (i) and (ii) of this section:

(i) Two business days prior to any withdrawals, advances or loans if those withdrawals, advances or loans on a net basis exceed in the aggregate in any 30 calendar day period, 30 percent of the government securities broker's or dealer's excess liquid capital. A government securities broker or dealer, in an emergency situation, may make withdrawals, advances or loans that on a net basis exceed 30 percent of the government securities broker's or dealer's excess liquid capital in any 30 calendar day period without giving the advance notice required by this paragraph, with the prior approval of its designated examining authority. When a government securities broker or dealer makes a withdrawal with the consent of its designated examining authority, it shall in any event comply with paragraph (i)(1)(ii) of this section; and

(ii) Two business days after any withdrawals, advances or loans if those withdrawals, advances or loans on a net basis exceed in the aggregate in any 30 calendar day period, 20 percent of the government securities broker's or dealer's excess liquid capital.

(iii) This paragraph (i)(1) of this section does not apply to:

(A) Securities or commodities transactions in the ordinary course of business between a government securities broker or dealer and an affiliate where the government securities broker or dealer makes payment to or on behalf of such affiliate for such transaction and then receives payment from such affiliate for the securities or commodities transaction within two business days from the date of the transaction; or

(B) Withdrawals, advances or loans which in the aggregate in any such 30 calendar day period, on a net basis, equal $500,000 or less.

(iv) Each required notice shall be effective when received by the Commission in Washington, DC, the regional or district office of the Commission for the area in which the government securities broker or dealer has its principal place of business, and the government securities broker's or dealer's designated examining authority.

(2)  Withdrawal limitations.  No equity capital of the government securities broker or dealer or a subsidiary or affiliate consolidated pursuant to appendix C to this section, § 402.2c, may be withdrawn by action of a stockholder or a partner, or by redemption or repurchase of shares of stock by any of the consolidated entities or through the payment of dividends or any similar distribution, nor may any unsecured advance or loan be made to a stockholder, partner, sole proprietor, employee or affiliate if, after giving effect thereto and to any other such withdrawals, advances or loans and any Payments of Payment Obligations (as defined in § 240.15c3-1d of this title, appendix D to SEC Rule 15c3-1, modified as provided in appendix D to this section, § 402.2d) under satisfactory subordination agreements which are scheduled to occur within 180 calendar days following such withdrawal, advance or loan, either:

(i) The ratio of liquid capital to total haircuts, determined as provided in § 402.2, would be less than 150 percent; or

(ii) Liquid capital minus total haircuts would be less than 120 percent of the minimum capital required by § 402.2(b) or § 402.2(c) as applicable; or

(iii) In the case of any government securities broker or dealer included in such consolidation, the total outstanding principal amounts of satisfactory subordination agreements of the government securities broker or dealer (other than such agreements which qualify as equity under § 240.15c3-1(d) of this title) would exceed 70% of the debt-equity total as defined in § 240.15c3-1(d).

(3)  Miscellaneous provisions.  (i) Excess liquid capital is that amount in excess of the amount required by the greater of § 402.2(a) or, §§ 402.2 (b) or (c), as applicable. For the purposes of paragraphs (i)(1) and (i)(2) of this section, a government securities broker or dealer may use the amount of excess liquid capital, liquid capital and total haircuts reported in its most recently required filed Form G-405 for the purposes of calculating the effect of a projected withdrawal, advance or loan relative to excess liquid capital or total haircuts. The government securities broker or dealer must assure itself that the excess liquid capital, liquid capital or the total haircuts reported on the most recently required filed Form G-405 have not materially changed since the time such report was filed.

(ii) The term equity capital includes capital contributions by partners, par or stated value of capital stock, paid-in capital in excess of par, retained earnings or other capital accounts. The term equity capital does not include securities in the securities accounts of partners and balances in limited partners' capital accounts in excess of their stated capital contributions.

(iii) Paragraphs (i)(1) and (i)(2) of this section shall not preclude a government securities broker or dealer from making required tax payments or preclude the payment to partners of reasonable compensation, and such payments shall not be included in the calculation of withdrawals, advances or loans for purposes of paragraphs (i)(1) and (i)(2) of this section.

(iv) For the purposes of this subsection (i), any transaction between a government securities broker or dealer and a stockholder, partner, sole proprietor, employee or affiliate that results in a diminution of the government securities broker's or dealer's liquid capital shall be deemed to be an advance or loan of liquid capital.

(j)  Modification of appendices to § 240.15c3-1 of this title.  For purposes of this section, appendix C to this section (§ 402.2c) is substituted for appendix C to Rule 15c3-1 (§ 240.15c3-1c of this title), and appendix D to Rule 15c3-1 (§ 240.15c3-1d of this title), relating to Satisfactory Subordination Agreements, is modified as provided in appendix D to this section (§ 402.2d)."
17:17:5.0.2.1.3.0.43.3,17,Commodity and Securities Exchanges,IV,A,402,PART 402—FINANCIAL RESPONSIBILITY,,,,§ 402.2a Appendix A—Calculation of market risk haircut for purposes of § 402.2(g)(2).,SEC,,,"[52 FR 27931, July 24, 1987, as amended at 53 FR 28985, Aug. 1, 1988; 71 FR 54411, Sept. 15, 2006; 79 FR 38455, July 8, 2014]","The market risk haircut is the sum of the Treasury market risk haircut and the other securities haircut, calculated as follows.

(a)  Treasury market risk haircut.  The “Treasury market risk haircut” equals the sum of the total governments offset portion haircut, the total futures and options offset haircut, the total hedging disallowance haircut, and the residual net position haircut, calculated with respect to financings and positions in Treasury market risk instruments, except to the extent that a permissible election is made pursuant to paragraph (b)(1) of this section to include qualified positions in the calculation of the other securities haircut.

(1)  Total governments offset portion haircut.  The “total governments offset portion haircut” equals the sum of the governments offset portion haircuts calculated for each category in § 402.2(f)(1). The “governments offset portion haircuts” equal, for each category in § 402.2(f)(1), the product of the offset haircut factor for that category set out in § 402.2(f)(2) and the smaller of the absolute values of the gross long immediate position or gross short immediate position for that category. Schedules B and C in paragraph (c) of this section can be used to make this calculation.

(i)(A) The “gross long immediate position” for purposes of this part equals, for each category except categories MB and AR in § 402.2(f)(1), the sum of the market values of each long immediate position in Treasury market risk instruments with a term to maturity (or, in the case of a floating rate note, the time to the next scheduled interest rate adjustment or the term to maturity, whichever is less) corresponding to such category, the contract values of each reverse repurchase agreement with a term to maturity or time to the next scheduled interest rate adjustment, whichever is less, corresponding to that category, and the values of the cash collateral of each security borrowing with a term to maturity or time to next scheduled interest rate adjustment, whichever is less, corresponding to such category.

(B) In the case of category MB, the “gross long immediate position” equals the sum of the market values of all long immediate positions in fixed rate mortgage-backed securities which are Treasury market risk instruments.

(C) In the case of category AR, the “gross long immediate position” equals the sum of the market values of all long immediate positions in adjustable rate mortgage-backed securities which are Treasury market risk instruments.

(ii)(A) The “gross short immediate position” for purposes of this section equals, for each category except categories MB and AR in § 402.2(f)(1), the sum of the market values of each short immediate position in Treasury market risk instruments with a term to maturity (or, in the case of a floating rate note, the time to the next scheduled interest rate adjustment or the term to maturity, whichever is less) corresponding to such category, and the values of funds received from each financing transaction (including repurchase agreements, securities lending secured by cash collateral, and term financings, but excluding subordinated debt which meets the requirements of § 240.15c3-1d of this title modified as provided in § 402.2d) with a term to maturity or time to the next scheduled interest rate adjustment, whichever is less, corresponding to that category.

(B) In the case of category MB, the “gross short immediate position” equals the sum of the market values of all short immediate positions in fixed rate mortgage-backed securities which are Treasury market risk instruments.

(C) In the case of category AR, the “gross short immediate position” equals the sum of the market values of all short immediate positions in adjustable rate mortgage-backed securities which are Treasury market risk instruments.

(iii) The term  long immediate position  in a Treasury market risk instrument means, for purposes of this part:

(A) The net long position in a Treasury market risk instrument as of the trade date, except when the settlement date, in the case of a Treasury market risk instrument except a mortgage-backed security, is scheduled more than five business days in the future, and, in the case of a mortgage-backed security, more than thirty calendar days in the future;

(B) The net long when-issued position in a marketable U.S. Treasury security between announcement and issue date;

(C) The net long when-issued position in a government agency or a government-sponsored agency debt security between release date and issue date; and

(D) The net long when-issued position in a security described in § 402.2(e)(1)(vi) between announcement date and issue date.

(iv) The term  short immediate position  on a Treasury market risk instrument means, for purposes of this part:

(A) The net short position in a Treasury market risk instrument as of the trade date, except when the settlement date, in the case of a Treasury market risk instrument except a mortgage-backed security, is scheduled more than five business days in the future, and, in the case of a mortgage-backed security, more than thirty calendar days in the future;

(B) The net short when-issued position in a marketable U.S. Treasury security between announcement and issue date;

(C) The net short when-issued position in a government agency or a government-sponsored agency debt security between release date and issue date; and

(D) The net short when-issued position in a security described in § 402.2(e)(1)(vi) between announcement date and issue date.

(2)  Net immediate position interim haircut.  The “net immediate position interim haircut” equals, for each category in § 402.2(f)(1), the product of the net position haircut factor for that category and the sum of the gross long immediate position and the gross short immediate position for that category. For purposes of this part, a gross long immediate position shall be a positive number and a gross short immediate position shall be a negative number. Schedules B and C in paragraph (c) of this section can be used to make this calculation.

(3)  Total futures and options offset haircut.  The “total futures and options offset haircut” equals the sum of the futures and options offset haircuts calculated for each category in § 402.2(f)(1). The “futures and options offset haircut” equals, for each category in § 402.2(f)(1), the product of a futures and options offset factor of 20 percent and the smaller of the absolute values of the positive and negative aggregate interim haircuts for that category. Schedule D in paragraph (c) of this section can be used to make this calculation.

(i)  Positive aggregate interim haircut.  The “positive aggregate interim haircut” equals, for each category in § 402.2(f)(1), the sum of the positive net immediate position interim haircut (see paragraph (a)(2) of this section), the gross long futures and forward interim haircut, and the positive gross options interim haircut for that category. Schedule D in paragraph (c) of this section can be used to make this calculation.

(A)  Gross long futures and forward interim haircut.  The “gross long futures and forward interim haircut” equals, for each category in § 402.2(f)(1), the sum of the interim haircuts on each long futures position and long forward position placed, in the case of a futures or forward contract which is a Treasury market risk instrument except those on mortgage-backed securities, in the category corresponding to the sum of the term to maturity of the contract and the term to maturity of the underlying instrument at the time of the maturity of the contract or, in the case of a futures or forward contract on Treasury market risk mortgage-backed securities, in the category corresponding to the type of Treasury market risk mortgage-backed security.

( 1 ) For purposes of this part, the  interim haircut on each long futures position and each long forward position  is the product of the net position haircut factor for the category corresponding to, in the case of a futures or forward contract which is a Treasury market risk instrument except those on mortgage-backed securities, the maturity of the underlying instrument at the time of the maturity of the contract or, in the case of a futures or forward contract on Treasury market risk mortgage-backed securities, the type of Treasury market risk mortgage-backed security and the value of the long futures position or long forward position evaluated at the current market price for such contract.

( 2 ) For purposes of this part, the gross long futures and forward interim haircut shall be a positive number.

(B)  Positive gross options interim haircut.  The “positive gross options interim haircut” equals, for each category in § 402.2(f)(1), the sum of the interim haircuts on each purchased call and sold put placed in the category in which the underlying instrument would be placed.

( 1 ) For purposes of this part, the “interim haircut on each purchased call and sold put” equals the lesser of the market value of the option or, ( i ) in the case of an option on a cash instrument, the product of the net position haircut factor for the category to which the underlying cash instrument corresponds and the market value of the underlying cash instrument or, ( ii ) in the case of an option on a futures contract, the interim haircut on the underlying futures contract.

( 2 ) For purposes of this part, the positive gross options interim haircut is a positive number.

(ii)  Negative aggregate interim haircut.  The “negative aggregate interim haircut” equals, for each category in § 402.2(f)(1), the sum of the negative net immediate position interim haircut (see paragraph (a)(2) of this section), the gross short futures and forward interim haircut, and the negative gross options interim haircut for that category. Schedule D in paragraph (c) of this section can be used to make this calculation.

(A)  Gross short futures and forward interim haircut.  The “gross short futures and forward interim haircut” equals, for each category in § 402.2(f)(1), the sum of the interim haircuts on each short futures position and short forward position placed, in the case of a futures or forward contract which is a Treasury market risk instrument except those on mortgage-backed securities, in the category corresponding to the sum of the term to maturity of the contract and the term to maturity of the underlying instrument at the time of the maturity of the contract or, in the case of a futures or forward contract on Treasury market risk mortgage-backed securities, in the category corresponding to the type of Treasury market risk mortgage-backed security.

( 1 ) For purposes of this part, the “interim haircut on each short futures position and each short forward position” is the product of the net position haircut factor for the category corresponding to, in the case of a futures or forward contract which is a Treasury market risk instrument except those on mortgage-backed securities, the maturity of the underlying instrument at the time of the maturity of the contract or, in the case of a futures or forward contract on Treasury market risk mortgage-backed securities, the type of Treasury market risk mortgage-backed security and the value of the short futures position or short forward position evaluated at the current market price for such contract.

( 2 ) For purposes of this part, the gross short futures and forward interim haircut is a negative number.

(B)  Negative gross options interim haircut.  The “negative gross options interim haircut” equals, for each category in § 402.2(f)(1), the sum of the interim haircuts on each sold call and purchased put placed in the category in which the underlying instrument would be placed.

( 1 ) For purposes of this part, the “interim haircut on each sold call and purchased put” equals the lesser of the market value of the option or, ( i ) in the case of an option on a cash instrument, the product of the net position haircut factor for the category to which the underlying cash instrument corresponds and the market value of the underlying cash instrument or, ( ii ) in the case of an option on a futures contract, the interim haircut on the underlying futures contract.

( 2 ) For purposes of this part, the negative gross options interim haircut is a negative number.

(4)  Total hedging disallowance haircut.  The “total hedging disallowance haircut” equals the sum of the hedging disallowance haircuts calculated pursuant to each netting of qualified netting interim haircuts. The “hedging disallowance haircut” equals the absolute value of the product of the applicable category pair hedging disallowance haircut factor specified in § 402.2(f)(3) and the smaller in absolute value of any two qualified netting interim haircuts, netted in accordance with the provisions of this paragraph. Schedule E in paragraph (c) of this section can be used to make this calculation.

(i)  Qualified netting interim haircut.  The term “qualified netting interim haircut” means a residual position interim haircut or a net residual position interim haircut.

(A)  Residual position interim haircut.  The “residual position interim haircut” equals, for each category in § 402.2(f)(1), the sum of the positive aggregate interim haircut and the negative aggregate interim haircut corresponding to the category, calculated in accordance with the provisions of paragraph (a)(3) of this section.

(B)( 1 )  Net residual position interim haircut.  The “net residual position interim haircut” equals, for any two categories between which netting is permitted, the sum of ( i ) the residual position interim haircuts calculated for those categories, in the case of the category of the larger in absolute value of the two residual position interim haircuts being netted, and ( ii ) zero, in the case of the category of the smaller in absolute value of the two residual position interim haircuts being netted.

( 2 ) For the purposes of this paragraph (a)(4), netting is permitted only between categories for which a category pair hedging disallowance haircut factor has been specified in paragraph § 402.2(f)(3).

(ii) Net residual position interim haircuts shall be substituted for the residual position interim haircuts in the respective categories in which they have been placed and shall be considered as if they were residual position interim haircuts. New net residual position interim haircuts may continue to be calculated until for each category pair for which netting is permitted at least one of the two qualified netting interim haircuts is zero or both qualified netting interim haircuts are of the same sign.

(5)  Residual net position haircut.  The “residual net position haircut” equals the sum of the absolute values of all qualified netting interim haircuts remaining in each category after the completion of the calculation of permissible nettings described in paragraph (a)(4) of this section. Schedule E in paragraph (c) of this section can be used to make this calculation.

(b)  Other securities haircut.  The “other securities haircut” equals the sum of all deductions specified in § 240.15c3-1 (c)(2)(vi) and (c)(2)(viii) of this title and §§ 240.15c3-1a and 240.l5c3-1b of this title for long and short positions in securities, futures contracts, forward contracts, options, and other inventory which are not Treasury market risk instruments as defined in § 402.2(e).

(1) A registered government securities broker or dealer may elect to exclude from its calculation of the Treasury market risk haircut and include in its calculation of the other securities haircut long and short positions in Treasury market risk instruments if such positions form part of a hedge against long and short positions in securities, futures contracts, forward contracts, or options which are not Treasury market risk instruments. Only the portion of the total position in a Treasury market risk instrument that forms part of such hedge may be excluded from the calculation of the Treasury market risk haircut and included in the calculation of the other securities haircut.

(2) For purposes of this paragraph (b), a gross long or short position in Treasury market risk instruments shall be considered part of a hedge if the inclusion of such position in the calculation of the other securities haircut would serve to reduce said haircut.

(3) For purposes of this paragraph (b) as it relates to § 240.15c3-1(c)(2)(vi)(M) (“undue concentration”), references to “10 percent of the “net capital'” shall be understood to refer to 10 percent of the liquid capital and references to “Appendix (D) (17 CFR 240.15c3-1d)” shall be understood to refer to such section as modified by § 402.2d.

(c)  Schedules.  This paragraph sets forth schedules which may be used by government securities brokers or dealers in the calculation of total haircuts as required by this part 402. The appropriate regulatory agency or designated examining authority may specify other substantially similar forms required to be used by government securities brokers or dealers in the calculation of such haircuts.

Schedule A—Liquid Capital Requirement, Summary Computation

[In thousands of dollars]

1  Identical to the amount reported on line 3640 of the Report on Finances and Operations of Government Securities Brokers and Dealers, Form G-405.

Schedules A through E may be used by government securities brokers or dealers subject to 17 CFR 402 to determine the firm's capital-to-risk ratio. Section 402.2 provides that a government securities broker or dealer must meet the applicable minimum dollar liquid capital requirement and that the firm's ratio of liquid capital to risk (total haircuts) must be at least 1.2:1; liquid capital must exceed risk by at least 20 percent. Total haircuts is the risk measure used in the ratio; it is made up of measures of market risk and measures of credit risk. The market risk of a government securities broker's or dealer's positions is accounted for through the Treasury market risk haircut and the other securities haircut. Credit risk is accounted for in the counterparty exposure, concentration of credit, and credit volatility haircuts and in the computation of liquid capital through the various deductions and charges. 
 
 Only positions in Treasury market risk instruments and financings may be used in the calculation of the Treasury market risk haircut. Treasury market risk instruments and financings are described in 17 CFR 402.2 and in the instructions to the schedule where they are to be first entered. All other types of financial instruments are to be included in the calculation of the other securities haircut. Calculation of the other securities haircut is based on the SEC's Rule 15c3-1 (17 CFR 240.15c3-1). 
 
 Treasury market risk instruments may be excluded from the calculation of the Treasury market risk haircut if they are included in the calculation of the other securities haircut as part of a hedge against long and short positions in securities, futures contracts, forward contracts, or options that are not Treasury market risk instruments. Only the portion of the total position in a Treasury market risk instrument that forms part of such a hedge may be excluded, and the result of this transfer of the Treasury market risk instruments must be a reduction in the other securities haircut. 
 
 The categories for classifying Treasury market risk instruments are designated in 17 CFR 402.2(f)(1). The categories, which are designated by a maturity range, contain all securities with remaining terms to maturity greater than or equal to the lower end of the range but less than the higher. A half year is always considered to be 6 months. In categories A through D, zero-coupon instruments are to be treated in the same manner as all other instruments. In categories E through J, the maturity designations in parentheses give the maturities of the zero-coupon instruments to be placed in that category. All mortgage-backed securities that are Treasury market risk instruments are to be placed in category MB or category AR, depending on whether they are backed by conventional or adjustable-rate mortgages. 
 
 All haircuts may be calculated to the nearest hundred dollars, unless such rounding would materially affect the liquid capital calculation. 
 
 Appendix A to the Preamble published with the temporary regulations for 17 CFR part 402 (52 FR 19669, May 26, 1987) contains an example of the capital calculation. It may also be used as an aid in completing these schedules. 
 
 Schedule A—Liquid Capital Requirement Summary Computation
 
 Schedule A is used to determine the capital-to-risk ratio by comparing liquid capital to total haircuts. Schedule A will be the last schedule completed as many of the haircuts entered on Schedule A are calculated on Schedules B through E. 
 
 Line 1—Enter liquid capital, which is identical to the amount reported on line 3640 of the Report on Finances and Operations of Government Securities Brokers and Dealers, Form G-405.
 
 Line 2—Haircuts on “Security and Financing Positions” including contractual commitments: 
 
 a. Enter the Total Governments Offset Portion Haircut from column 10 of Schedule C. 
 
 b. Enter the Total Futures and Options Offset Haircut from column 19 of Schedule D. 
 
 c. Enter the Total Hedging Disallowance Haircut as calculated in Schedule E, column 27. 
 
 d. Enter the Residual Net Position Haircut as given in column 28 of Schedule E. 
 
 e. Enter the other securities haircut as determined by applying the SEC haircut factors to securities, futures contracts, forward contracts, options and other inventory that are not Treasury market risk instruments as defined in 17 CFR 402.2(e). The other securities haircut is the sum of all applicable deductions as specified in 17 CFR 240.15c3-1 (c)(2)(vi) and (c)(2)(viii) and in 17 CFR 240.15c3-1a and 240.15c3-1b. Any position(s) in Treasury market risk instruments that have been excluded from the calculation of the Treasury market risk haircut because they are part of a hedge with these other instruments are to be included in the calculation of this haircut. 
 
 Line 3—Haircuts on credit exposure: 
 
 a. Enter the total counterparty exposure haircut which is the sum of the counterparty exposure haircut with each counterparty, except a Federal Reserve Bank. A counterparty exposure haircut is equal to 5 percent of the net credit exposure to a single counterparty which is not in excess of 15 percent of the government securities broker's or dealer's liquid capital. If the net credit exposure to a counterparty does exceed 15 percent of liquid capital, the excess will be used in calculating the total concentration of credit haircut on line 3b. 
 
 Net credit exposure equals the difference between the government securities broker's or dealer's credit exposure to a single counterparty and that counterparty's credit exposure to the government securities broker or dealer. The government securities broker's or dealer's credit exposure to a counterparty is equal to the sum of the dollar amount of funds, debt instruments, other securities, and other inventory at risk to the government securities broker or dealer in the event of the counterparty's default and the market value of purchased unlisted options that are Treasury market risk instruments and were written by the counterparty. It does not include, however, (1) the deduction taken from net worth for unsecured receivables, repurchase and reverse repurchase agreement deficits, aged fails to deliver, and aged fails to receive arising from transactions with the counterparty; (2) demand deposits in the case where the counterparty is a commercial bank; (3) loans of immediately available funds (commonly referred to as “sales of federal funds”) held by the government securities broker or dealer in connection with the clearance of securities on the day the loan is made in the case where the counterparty is a commercial bank; (4) custodial holdings of securities in the case where the counterparty is a clearing bank or clearing broker of the government securities broker or dealer; or (5) credit exposure to the counterparty due to holding marketable instruments for which the counterparty is the obligor. 
 
 The counterparty's credit exposure to the government securities broker or dealer equals the dollar amount of funds, debt instruments, other securities, and other inventory at risk to the counterparty in the event of the government security broker's or dealer's default and any unlisted options written by the government securities broker or dealer and held by the counterparty. 
 
 b. Enter the total concentration of credit haircut which is the sum of all concentration of credit haircuts applied in cases where the net credit exposure (as defined above) to a single counterparty is in excess of 15 percent of the government securities broker's or dealer's liquid capital. The concentration of credit haircut is 25 percent of the amount of net credit exposure in excess of 15 percent of the government securities broker's or dealer's liquid capital. 
 
 c. Enter the credit volatility haircut which equals a factor of 0.15 percent applied to the larger of the gross long or gross short position in money market instruments qualifying as Treasury market risk instruments which mature in 45 days or more, in futures and forwards on these instruments that are settled on a cash or delivery basis, and in futures and forwards on time deposits described in § 402.2(e)(1)(vii), that mature in 45 days or more, settled on a cash or delivery basis. Money market instruments qualifying as Treasury market risk instruments are (1) marketable certificates of deposit with no more than one year to maturity, (2) bankers acceptances, and (3) commercial paper of no more than one year to maturity and which has only a minimal amount of credit risk as determined by the government securities broker or dealer pursuant to reasonably designed written policies and procedures the government securities broker or government securities dealer establishes, maintains, and enforces to assess and monitor creditworthiness. These policies and procedures should result in creditworthiness assessments that typically are consistent with market data.
 
 Line 4—Enter total haircuts which is the sum of lines 2 a through e, and 3 a, b, and c. 
 
 Line 5—Enter the capital-to-risk ratio which is found by dividing line 1, “Liquid capital,” by line 4, “Total haircuts.” The capital-to-risk ratio must be at least equal to 1.2:1. 
 
 Schedule B—Calculation of Net Immediate Position in Securities and Financings
 
 Schedule B is used to calculate the net immediate position in and offset portion of securities and financings. The results are then carried over to Schedule C for initial haircut calculations. Futures, forwards, and options which are Treasury market risk instruments are to be entered on Schedule D. 
 
 Positions in and financings on debt instruments other than mortgage-backed or adjustable rate mortgage-backed securities should be placed in the category corresponding to their remaining term to maturity. In the case of a floating rate note, however, the note should be placed in the category corresponding to the time to the next scheduled interest rate adjustment or remaining term to maturity, whichever is less. 
 
 Column 1—Under “Financings-Long” report in the appropriate category the contract value of reverse repurchase agreements and the value(s) of cash collateral on security borrowings. Financings so reported should be placed in the category corresponding to the remaining term to maturity or time to the next scheduled interest rate adjustment, whichever is less. 
 
 Column 2—Under “Financings-Short” report in the appropriate category as a negative number the values of funds received from financing transactions. Include repurchase agreements, securities lending secured by cash collateral, and term financings, but exclude subordinated debt which meets the requirements of 17 CFR 240.15c3-1d as modified by 17 CFR 402.2d. Financings so reported should be placed in the category corresponding to the remaining term to maturity or time to the next scheduled interest rate adjustment, whichever is less. 
 
 Columns 3 and 4—Report in the appropriate column by maturity or type of mortgage-backed security under “Securities Positions” the sum of the market values of immediate positions in Treasury market risk instruments. The net position in each individual Treasury market risk instrument is to be appropriately reported as a long (+) or short (−) position in summation with all other positions of the same category (long/short). Short positions are assigned a negative value. Treasury market risk instruments are defined in 17 CFR 402.2(e). Those to be reported in Schedule B are:
 
 (1) Government securities as defined in 17 CFR 400.3 except equity securities and mortgage-backed securities which do not pass through to the security holder on a pro rata basis a distribution based on the monthly payments and prepayments of principal and interest on the underlying pool of mortgage collateral less fees and expenses; 
 
 (2) Zero-coupon receipts or certificates based on marketable Treasury notes or bonds; 
 
 (3) Marketable certificates of deposit of no more than one year to maturity; 
 
 (4) Bankers acceptances; 
 
 (5) Commercial paper of no more than one year to maturity and which has only a minimal amount of credit risk as determined by the government securities broker or dealer pursuant to reasonably designed written policies and procedures the government securities broker or dealer establishes, maintains, and enforces to assess and monitor creditworthiness. These policies and procedures should result in creditworthiness assessments that typically are consistent with market data; and
 
 (6) Securities described in § 402.2(e)(1)(vi). 
 
 Report all positions as of the trade date. If the settlement date is scheduled for more than five business days in the future (or, in the case of a mortgage-backed security, more than thirty calendar days in the future), then report the position as a forward contract on Schedule D. Also, under “Securities Positions” in the appropriate column and category, report any when-issued position in a marketable Treasury security between announcement and issue date, any when-issued position in a government agency or a government-sponsored agency debt security between release date and issue date, and any when-issued position in a security described in § 402.2(e)(1)(vi) between announcement date and issue date. 
 
 Exclude positions in Treasury market risk instruments which form part of a hedge against long and short positions in securities, futures contracts, forward contracts, or options that are not Treasury market risk instruments and are to be included in the calculation of the other securities haircut. Only that portion of the total position in a Treasury market risk instrument that forms part of such a hedge may be excluded, and the inclusion of the Treasury market risk instruments must reduce the other securities haircut. 
 
 Column 5—Under “Total Securities and Financing Positions (+)” report in the appropriate category the sum of the long financings (column 1) and long securities positions (column 3). 
 
 Column 6—Under “Total Securities and Financing Positions (−)” report in the appropriate category the sum of the short financings (column 2) and short securities positions (column 4). 
 
 Column 7—Under “Offset Portions” report in the appropriate category the lesser of the absolute values of the positive (column 5) or negative (column 6) total securities and financing positions. 
 
 Column 8—Under “Net Immediate Positions” report in the appropriate category the sum, or net value, of the positive (column 5) and negative (column 6) total securities and financing positions. 
 
 Columns 7, “Offset Portions,” and 8, “Net Immediate Positions,” are to be carried to Schedule C. 
 
 Schedule C—Governments Offset Portion and Net Immediate Position Interim Haircuts Calculation
 
 Schedule C is used to calculate the total governments offset portion haircut and net immediate position interim haircuts by applying offset and net position haircut factors to the offset portions and net immediate positions in Treasury market risk instruments and financings. The total governments offset portion haircut is then carried to Schedule A, and the net immediate position interim haircuts are carried to Schedule D or E. 
 
 Column 7—Transfer to column 7, “Governments Offset Portion—$ Amounts,” column seven from Schedule B, “Offset Portions.” 
 
 Column 9—These are the governments offset portion haircut factors given at 17 CFR 402.2(f)(2). They may be updated from time to time. 
 
 Column 10—Under “Governments Offset Portion—Haircuts” report in the appropriate category the product of the corresponding values in column 7, “$ Amounts,” and in column 9, “Factors.” 
 
 To determine the total governments offset portion haircut, sum the values under “Governments Offset Portion—Haircuts” in column 10, and enter this number in the appropriate space. Carry this value to Schedule A, line 2a, converting, if necessary, to thousands of dollars. 
 
 Column 8—Transfer to column 8, “Net Immediate Positions—$ Amounts,” column eight from Schedule B, “Net Immediate Positions.” 
 
 Column 11—These are the net immediate position haircut factors given at 17 CFR 402.2(f)(2). They may be updated from time to time. 
 
 Column 12—Under “Net Immediate Positions—Interim Haircuts” place in the appropriate category the product of the corresponding values in column 8, “$ Amounts,” and in column 11, “Factors.” A haircut on a short position remains negative. 
 
 Carry column 12 to Schedule D, or, if there are no futures, forwards, or options positions, to Schedule E. 
 
 Schedule D—Consolidation of Net Immediate Position Interim Haircuts with Gross Futures and Options Interim Haircuts
 
 Schedule D is used to enter haircuts on futures, forwards and options positions and to calculate the total futures and options offset haircut and the residual position interim haircuts as needed for Schedules A and E respectively. If there are no futures and options positions, it is not necessary to fill out Schedule D. 
 
 Report on Schedule D futures, forwards, and options which are Treasury market risk instruments as defined in § 402.2(e). These futures, forwards, and listed option contracts may be based on any of the Treasury market risk instruments described in the instructions to columns 3 and 4 on Schedule B or on time deposits whose changes in yield are closely correlated with marketable certificates of deposit which are Treasury market risk instruments, as described in § 402.2(e)(1)(vii). Options on Treasury market risk futures contracts and unlisted options on marketable Treasury bills, notes, and bonds are also to be included. Futures contracts may settle on a cash or delivery basis. Any of these contracts which are being included as part of a hedge in the calculation of the other securities haircut must be excluded from Schedule D. 
 
 Report as a forward contract any position for which the time between trade date and settlement date is more than five business days (30 calendar days for a mortgage-backed security). Any when-issued position in a marketable Treasury security established between announcement and issue date, any when-issued position in a government agency or a government-sponsored agency debt security established between release date and issue date, and any when-issued position in a security described in § 402.2(e)(1)(vi) between announcement date and issue date is reported in the appropriate category on Schedule B under “Securities Positions.” 
 
 Column 12—Transfer to column 12, “Net Immediate Position Interim Haircuts,” column 12 from Schedule C, “Net Immediate Positions—Interim Haircuts,” converting, if necessary, to thousands of dollars. 
 
 Columns 13 and 14—Under “Gross Interim Haircuts—Futures and Forward” enter in the appropriate category the sum of the interim haircuts on the futures or forward positions belonging to that category. The interim haircut on a futures or forward position equals the product of the value of the position evaluated at the current market price for such contract and the net position haircut factor that corresponds to either the term to maturity of the underlying instrument or, for mortgage-backed securities, the type of security. The term to maturity of the underlying instrument is the term to maturity of the deliverable security at the time of the maturity of the futures or forward contract. The haircut on a futures or forward position on a non-mortgaged-backed instrument is to be entered in the category corresponding to the sum of the remaining time to maturity of the futures or forward contract and the maturity of the underlying instrument. Haircuts on futures and forwards on mortgage-backed securities are to be entered in the appropriate mortgage-backed securities category. The interim haircuts on long futures and forwards are positive (column 13), and on short futures and forwards, negative (column 14). 
 
 Columns 15 and 16—Under “Gross Interim Haircuts—Options” enter, in the category in which the instrument directly underlying the contract would be entered, the lesser of (1) the market value of the option or (2) the net immediate position interim haircut on the underlying cash instrument or gross futures interim haircut on the underlying futures contract. Note that in the case of an option on a futures contract the category in which the option contract is to be entered is the sum of the remaining time to maturity of the futures or forward contract and the maturity of the instrument underlying the futures or forward contract. The haircut factor used to determine the gross futures interim haircut is that factor corresponding to the term to maturity of the deliverable security at the time of the maturity of the futures or forward contract. Gross option haircuts on purchased calls and sold puts are positive, those on sold calls and purchased puts are negative. 
 
 Column 17—Under “Aggregate Interim Haircuts (+)” enter in the appropriate category, the sum of any positive net immediate position interim haircut (column 12) and the positive gross option (column 15) and gross futures and forward (column 13) interim haircuts for that category. 
 
 Column 18—Under “Aggregate Interim Haircuts (−)” enter in the appropriate category, the sum of any negative net immediate position interim haircut (column 12) and the negative gross option (column 16) and gross futures and forward (column 14) interim haircuts for that category. 
 
 Column 19—Under “Futures and Options Offset Portions” enter, in the appropriate category, the lesser of the absolute values of the positive and negative aggregate interim haircuts (columns 17 and 18) for that category. 
 
 The total futures and options offset portion is the sum of the values in column 19 under “Futures and Options Offset Portions.”
 
 The total futures and options offset haircut is the total futures and options offset portion multiplied by a factor of 20 percent and is carried to line 2b, Schedule A. 
 
 Column 20—Enter in the appropriate category under “Residual Position Interim Haircuts” the sum, or net value, of the positive and negative aggregate interim haircuts. Carry this to column 20 on Schedule E. 
 
 Schedule E—Calculation of Hedging Disallowance Haircuts When Netting Haircuts Across Categories
 
 Schedule E is used to calculate the hedging disallowance and residual net position haircuts which are then carried to Schedule A. The purpose of Schedule E is to hedge positions in different categories in order to reduce total haircuts. Netting the residual position interim haircuts reflects the risk reduction inherent in hedges between positions in different categories where the price volatility is reasonably well correlated. 
 
 Section 402.2(f)(3) of the rule specifies the hedging disallowance haircut factors for the category pairs. Netting of residual position interim haircuts is permitted only between any two categories for which a hedging disallowance haircut factor is specified. Hedging disallowance haircuts are similar to offset haircuts in that they are applied to the smaller of the two residual position interim haircuts and represent the portion of the hedge being “disallowed.” A hedging disallowance haircut is determined each time two residual position interim haircuts are netted. 
 
 There are three levels of permissible netting corresponding to the three hedging disallowance haircut factors: The 20 percent, 30 percent, and 40 percent levels. It is not necessary to net all possible pairs at any one level. A greater reduction in total haircuts can sometimes be obtained by choosing not to net a pair at one level (e.g., the 20 percent level) so that one element of the pair can be netted against a third category at another level (e.g., the 30 percent level). 
 
 Column 20—Transfer column 20, “Residual Position Interim Haircuts,” from Schedule D. If there are no futures or options positions, transfer instead column 12, “Net Immediate Positions—Interim Haircuts,” from Schedule C. 
 
 Column 21—Use the matrix at 17 CFR 402.2(f)(3) to determine the categories from which the residual position interim haircuts may be paired at the 20 percent level. For each pair multiply the smaller of the absolute values of the two residual position interim haircuts by the hedging disallowance haircut factor of 20 percent, and, in the category of the smaller, enter the resulting hedging disallowance haircut. 
 
 Column 22—For each pair being netted at this level, enter under “Net Residual Position Interim Haircuts” (1) the sum, or net value, of the two residual position interim haircuts (and/or net residual position interim haircuts) in the category of the larger (in absolute value) of the two interim haircuts that were netted, and (2) a zero in the category of the smaller. 
 
 These net residual position interim haircuts replace the residual position interim haircuts (or net residual position interim haircuts) from which they were derived. Net residual position interim haircuts can in turn be used in any other allowable netting exactly as residual position interim haircuts would be. If further netting of that category at the same level is permissible and possible, it will be necessary to replace the net residual position interim haircut involved with a new (and smaller) net residual position interim haircut in column 22. 
 
 Since the net residual position interim haircut in any category containing a hedging disallowance haircut is zero, further netting with any such category is impossible. 
 
 After all netting has been completed for category pairs with a 20 percent hedging disallowance haircut factor, move on to column 23. 
 
 Column 23—Use the matrix at 17 CFR 402.2(f)(3) to determine the categories from which the residual position interim haircuts and/or net residual position interim haircuts may be paired at the 30 percent level. In each category, the newest (and smallest) net residual position interim haircut determined by netting at the 20 percent level replaces the old value and must be used in hedging in that category at higher levels. For each pair being netted, multiply the smaller of the absolute values of the two (net) residual position interim haircuts by the hedging disallowance haircut factor of 30 percent, and in the category of the smaller, enter the resulting hedging disallowance haircut. 
 
 Column 24—For each pair being netted at this level, enter under “Net Residual Position Interim Haircuts” (1) the sum, or net value, of the two residual position interim haircuts and/or net residual position interim haircuts in the category of the larger (in absolute value) of the two interim haircuts that were netted, and (2) a zero in the category of the smaller. 
 
 These net residual position interim haircuts replace the residual position interim haircuts (or net residual position interim haircuts) from which they were derived. Net residual position interim haircuts can in turn be used in any other allowable netting exactly as residual position interim haircuts would be. If further netting of that category at the same level is permissible and possible, it will be necessary to replace the net residual position interim haircut involved with a new (and smaller) net residual position interim haircut. 
 
 After all netting has been completed for category pairs with a 30 percent hedging disallowance haircut factor, continue to column 25. 
 
 Column 25—Use the matrix at 17 CFR 402.2(f)(3) to determine the categories from which the residual position interim haircuts and/or net residual position interim haircuts may be paired at the 40 percent level. In each category, any new net residual position interim haircut determined by netting at the 20 or 30 percent level replaces the old value and must be used in hedging with that category at the 40 percent level. For each pair being netted, multiply the smaller of the absolute values of the two (net) residual position interim haircuts by the hedging disallowance haircut factor of 40 percent and, in the category of the smaller, enter the resulting hedging disallowance haircut. 
 
 Column 26—For each pair being netted at this level, enter under “Net Residual Position Interim Haircuts” (1) the sum, or net value, of the two (net) residual position interim haircuts in the category of the larger (in absolute value) of the two interim haircuts that were netted, and (2) a zero in the category of the smaller. If further netting of that category at the same level is permissible and possible, it will be necessary to replace the net residual position interim haircut involved with a new (and smaller) net residua1 position interim haircut. 
 
 Column 27—When all possible (net) residual position interim haircuts have been netted, enter under “Hedging Disallowance Haircuts” all hedging disallowance haircuts calculated in the netting procedures, each in its appropriate category. 
 
 Enter under “Total Hedging Disallowance Haircut” the sum of all the hedging disallowance haircuts entered in column 27. Carry to Schedule A, line 2c. 
 
 Column 28—Under “Qualified Netting Interim Haircuts” enter in the appropriate category the absolute value of the haircut given under “Net Residual Position Interim Haircut” at the highest hedging disallowance factor used for that category (columns 26, 24, or 22). This value will also be the smallest of the net residual position interim haircuts in that category. If the position in a given category was not used in hedging then enter the absolute value of the residual position interim haircut from column 20. 
 
 Sum the qualified netting interim haircuts, enter this value under “Residual Net Position Haircut,” and carry to Schedule A, line 2d.

Schedules A through E may be used by government securities brokers or dealers subject to 17 CFR 402 to determine the firm's capital-to-risk ratio. Section 402.2 provides that a government securities broker or dealer must meet the applicable minimum dollar liquid capital requirement and that the firm's ratio of liquid capital to risk (total haircuts) must be at least 1.2:1; liquid capital must exceed risk by at least 20 percent. Total haircuts is the risk measure used in the ratio; it is made up of measures of market risk and measures of credit risk. The market risk of a government securities broker's or dealer's positions is accounted for through the Treasury market risk haircut and the other securities haircut. Credit risk is accounted for in the counterparty exposure, concentration of credit, and credit volatility haircuts and in the computation of liquid capital through the various deductions and charges.

Only positions in Treasury market risk instruments and financings may be used in the calculation of the Treasury market risk haircut. Treasury market risk instruments and financings are described in 17 CFR 402.2 and in the instructions to the schedule where they are to be first entered. All other types of financial instruments are to be included in the calculation of the other securities haircut. Calculation of the other securities haircut is based on the SEC's Rule 15c3-1 (17 CFR 240.15c3-1).

Treasury market risk instruments may be excluded from the calculation of the Treasury market risk haircut if they are included in the calculation of the other securities haircut as part of a hedge against long and short positions in securities, futures contracts, forward contracts, or options that are not Treasury market risk instruments. Only the portion of the total position in a Treasury market risk instrument that forms part of such a hedge may be excluded, and the result of this transfer of the Treasury market risk instruments must be a reduction in the other securities haircut.

The categories for classifying Treasury market risk instruments are designated in 17 CFR 402.2(f)(1). The categories, which are designated by a maturity range, contain all securities with remaining terms to maturity greater than or equal to the lower end of the range but less than the higher. A half year is always considered to be 6 months. In categories A through D, zero-coupon instruments are to be treated in the same manner as all other instruments. In categories E through J, the maturity designations in parentheses give the maturities of the zero-coupon instruments to be placed in that category. All mortgage-backed securities that are Treasury market risk instruments are to be placed in category MB or category AR, depending on whether they are backed by conventional or adjustable-rate mortgages.

All haircuts may be calculated to the nearest hundred dollars, unless such rounding would materially affect the liquid capital calculation.

Appendix A to the Preamble published with the temporary regulations for 17 CFR part 402 (52 FR 19669, May 26, 1987) contains an example of the capital calculation. It may also be used as an aid in completing these schedules.

Schedule A is used to determine the capital-to-risk ratio by comparing liquid capital to total haircuts. Schedule A will be the last schedule completed as many of the haircuts entered on Schedule A are calculated on Schedules B through E.

Line 1—Enter liquid capital, which is identical to the amount reported on line 3640 of the Report on Finances and Operations of Government Securities Brokers and Dealers, Form G-405.

Line 2—Haircuts on “Security and Financing Positions” including contractual commitments:

a. Enter the Total Governments Offset Portion Haircut from column 10 of Schedule C.

b. Enter the Total Futures and Options Offset Haircut from column 19 of Schedule D.

c. Enter the Total Hedging Disallowance Haircut as calculated in Schedule E, column 27.

d. Enter the Residual Net Position Haircut as given in column 28 of Schedule E.

e. Enter the other securities haircut as determined by applying the SEC haircut factors to securities, futures contracts, forward contracts, options and other inventory that are not Treasury market risk instruments as defined in 17 CFR 402.2(e). The other securities haircut is the sum of all applicable deductions as specified in 17 CFR 240.15c3-1 (c)(2)(vi) and (c)(2)(viii) and in 17 CFR 240.15c3-1a and 240.15c3-1b. Any position(s) in Treasury market risk instruments that have been excluded from the calculation of the Treasury market risk haircut because they are part of a hedge with these other instruments are to be included in the calculation of this haircut.

Line 3—Haircuts on credit exposure:

a. Enter the total counterparty exposure haircut which is the sum of the counterparty exposure haircut with each counterparty, except a Federal Reserve Bank. A counterparty exposure haircut is equal to 5 percent of the net credit exposure to a single counterparty which is not in excess of 15 percent of the government securities broker's or dealer's liquid capital. If the net credit exposure to a counterparty does exceed 15 percent of liquid capital, the excess will be used in calculating the total concentration of credit haircut on line 3b.

Net credit exposure equals the difference between the government securities broker's or dealer's credit exposure to a single counterparty and that counterparty's credit exposure to the government securities broker or dealer. The government securities broker's or dealer's credit exposure to a counterparty is equal to the sum of the dollar amount of funds, debt instruments, other securities, and other inventory at risk to the government securities broker or dealer in the event of the counterparty's default and the market value of purchased unlisted options that are Treasury market risk instruments and were written by the counterparty. It does not include, however, (1) the deduction taken from net worth for unsecured receivables, repurchase and reverse repurchase agreement deficits, aged fails to deliver, and aged fails to receive arising from transactions with the counterparty; (2) demand deposits in the case where the counterparty is a commercial bank; (3) loans of immediately available funds (commonly referred to as “sales of federal funds”) held by the government securities broker or dealer in connection with the clearance of securities on the day the loan is made in the case where the counterparty is a commercial bank; (4) custodial holdings of securities in the case where the counterparty is a clearing bank or clearing broker of the government securities broker or dealer; or (5) credit exposure to the counterparty due to holding marketable instruments for which the counterparty is the obligor.

The counterparty's credit exposure to the government securities broker or dealer equals the dollar amount of funds, debt instruments, other securities, and other inventory at risk to the counterparty in the event of the government security broker's or dealer's default and any unlisted options written by the government securities broker or dealer and held by the counterparty.

b. Enter the total concentration of credit haircut which is the sum of all concentration of credit haircuts applied in cases where the net credit exposure (as defined above) to a single counterparty is in excess of 15 percent of the government securities broker's or dealer's liquid capital. The concentration of credit haircut is 25 percent of the amount of net credit exposure in excess of 15 percent of the government securities broker's or dealer's liquid capital.

c. Enter the credit volatility haircut which equals a factor of 0.15 percent applied to the larger of the gross long or gross short position in money market instruments qualifying as Treasury market risk instruments which mature in 45 days or more, in futures and forwards on these instruments that are settled on a cash or delivery basis, and in futures and forwards on time deposits described in § 402.2(e)(1)(vii), that mature in 45 days or more, settled on a cash or delivery basis. Money market instruments qualifying as Treasury market risk instruments are (1) marketable certificates of deposit with no more than one year to maturity, (2) bankers acceptances, and (3) commercial paper of no more than one year to maturity and which has only a minimal amount of credit risk as determined by the government securities broker or dealer pursuant to reasonably designed written policies and procedures the government securities broker or government securities dealer establishes, maintains, and enforces to assess and monitor creditworthiness. These policies and procedures should result in creditworthiness assessments that typically are consistent with market data.

Line 4—Enter total haircuts which is the sum of lines 2 a through e, and 3 a, b, and c.

Line 5—Enter the capital-to-risk ratio which is found by dividing line 1, “Liquid capital,” by line 4, “Total haircuts.” The capital-to-risk ratio must be at least equal to 1.2:1.

Schedule B is used to calculate the net immediate position in and offset portion of securities and financings. The results are then carried over to Schedule C for initial haircut calculations. Futures, forwards, and options which are Treasury market risk instruments are to be entered on Schedule D.

Positions in and financings on debt instruments other than mortgage-backed or adjustable rate mortgage-backed securities should be placed in the category corresponding to their remaining term to maturity. In the case of a floating rate note, however, the note should be placed in the category corresponding to the time to the next scheduled interest rate adjustment or remaining term to maturity, whichever is less.

Column 1—Under “Financings-Long” report in the appropriate category the contract value of reverse repurchase agreements and the value(s) of cash collateral on security borrowings. Financings so reported should be placed in the category corresponding to the remaining term to maturity or time to the next scheduled interest rate adjustment, whichever is less.

Column 2—Under “Financings-Short” report in the appropriate category as a negative number the values of funds received from financing transactions. Include repurchase agreements, securities lending secured by cash collateral, and term financings, but exclude subordinated debt which meets the requirements of 17 CFR 240.15c3-1d as modified by 17 CFR 402.2d. Financings so reported should be placed in the category corresponding to the remaining term to maturity or time to the next scheduled interest rate adjustment, whichever is less.

Columns 3 and 4—Report in the appropriate column by maturity or type of mortgage-backed security under “Securities Positions” the sum of the market values of immediate positions in Treasury market risk instruments. The net position in each individual Treasury market risk instrument is to be appropriately reported as a long (+) or short (−) position in summation with all other positions of the same category (long/short). Short positions are assigned a negative value. Treasury market risk instruments are defined in 17 CFR 402.2(e). Those to be reported in Schedule B are:

(1) Government securities as defined in 17 CFR 400.3 except equity securities and mortgage-backed securities which do not pass through to the security holder on a pro rata basis a distribution based on the monthly payments and prepayments of principal and interest on the underlying pool of mortgage collateral less fees and expenses;

(2) Zero-coupon receipts or certificates based on marketable Treasury notes or bonds;

(3) Marketable certificates of deposit of no more than one year to maturity;

(4) Bankers acceptances;

(5) Commercial paper of no more than one year to maturity and which has only a minimal amount of credit risk as determined by the government securities broker or dealer pursuant to reasonably designed written policies and procedures the government securities broker or dealer establishes, maintains, and enforces to assess and monitor creditworthiness. These policies and procedures should result in creditworthiness assessments that typically are consistent with market data; and

(6) Securities described in § 402.2(e)(1)(vi).

Report all positions as of the trade date. If the settlement date is scheduled for more than five business days in the future (or, in the case of a mortgage-backed security, more than thirty calendar days in the future), then report the position as a forward contract on Schedule D. Also, under “Securities Positions” in the appropriate column and category, report any when-issued position in a marketable Treasury security between announcement and issue date, any when-issued position in a government agency or a government-sponsored agency debt security between release date and issue date, and any when-issued position in a security described in § 402.2(e)(1)(vi) between announcement date and issue date.

Exclude positions in Treasury market risk instruments which form part of a hedge against long and short positions in securities, futures contracts, forward contracts, or options that are not Treasury market risk instruments and are to be included in the calculation of the other securities haircut. Only that portion of the total position in a Treasury market risk instrument that forms part of such a hedge may be excluded, and the inclusion of the Treasury market risk instruments must reduce the other securities haircut.

Column 5—Under “Total Securities and Financing Positions (+)” report in the appropriate category the sum of the long financings (column 1) and long securities positions (column 3).

Column 6—Under “Total Securities and Financing Positions (−)” report in the appropriate category the sum of the short financings (column 2) and short securities positions (column 4).

Column 7—Under “Offset Portions” report in the appropriate category the lesser of the absolute values of the positive (column 5) or negative (column 6) total securities and financing positions.

Column 8—Under “Net Immediate Positions” report in the appropriate category the sum, or net value, of the positive (column 5) and negative (column 6) total securities and financing positions.

Columns 7, “Offset Portions,” and 8, “Net Immediate Positions,” are to be carried to Schedule C.

Schedule C is used to calculate the total governments offset portion haircut and net immediate position interim haircuts by applying offset and net position haircut factors to the offset portions and net immediate positions in Treasury market risk instruments and financings. The total governments offset portion haircut is then carried to Schedule A, and the net immediate position interim haircuts are carried to Schedule D or E.

Column 7—Transfer to column 7, “Governments Offset Portion—$ Amounts,” column seven from Schedule B, “Offset Portions.”

Column 9—These are the governments offset portion haircut factors given at 17 CFR 402.2(f)(2). They may be updated from time to time.

Column 10—Under “Governments Offset Portion—Haircuts” report in the appropriate category the product of the corresponding values in column 7, “$ Amounts,” and in column 9, “Factors.”

To determine the total governments offset portion haircut, sum the values under “Governments Offset Portion—Haircuts” in column 10, and enter this number in the appropriate space. Carry this value to Schedule A, line 2a, converting, if necessary, to thousands of dollars.

Column 8—Transfer to column 8, “Net Immediate Positions—$ Amounts,” column eight from Schedule B, “Net Immediate Positions.”

Column 11—These are the net immediate position haircut factors given at 17 CFR 402.2(f)(2). They may be updated from time to time.

Column 12—Under “Net Immediate Positions—Interim Haircuts” place in the appropriate category the product of the corresponding values in column 8, “$ Amounts,” and in column 11, “Factors.” A haircut on a short position remains negative.

Carry column 12 to Schedule D, or, if there are no futures, forwards, or options positions, to Schedule E.

Schedule D is used to enter haircuts on futures, forwards and options positions and to calculate the total futures and options offset haircut and the residual position interim haircuts as needed for Schedules A and E respectively. If there are no futures and options positions, it is not necessary to fill out Schedule D.

Report on Schedule D futures, forwards, and options which are Treasury market risk instruments as defined in § 402.2(e). These futures, forwards, and listed option contracts may be based on any of the Treasury market risk instruments described in the instructions to columns 3 and 4 on Schedule B or on time deposits whose changes in yield are closely correlated with marketable certificates of deposit which are Treasury market risk instruments, as described in § 402.2(e)(1)(vii). Options on Treasury market risk futures contracts and unlisted options on marketable Treasury bills, notes, and bonds are also to be included. Futures contracts may settle on a cash or delivery basis. Any of these contracts which are being included as part of a hedge in the calculation of the other securities haircut must be excluded from Schedule D.

Report as a forward contract any position for which the time between trade date and settlement date is more than five business days (30 calendar days for a mortgage-backed security). Any when-issued position in a marketable Treasury security established between announcement and issue date, any when-issued position in a government agency or a government-sponsored agency debt security established between release date and issue date, and any when-issued position in a security described in § 402.2(e)(1)(vi) between announcement date and issue date is reported in the appropriate category on Schedule B under “Securities Positions.”

Column 12—Transfer to column 12, “Net Immediate Position Interim Haircuts,” column 12 from Schedule C, “Net Immediate Positions—Interim Haircuts,” converting, if necessary, to thousands of dollars.

Columns 13 and 14—Under “Gross Interim Haircuts—Futures and Forward” enter in the appropriate category the sum of the interim haircuts on the futures or forward positions belonging to that category. The interim haircut on a futures or forward position equals the product of the value of the position evaluated at the current market price for such contract and the net position haircut factor that corresponds to either the term to maturity of the underlying instrument or, for mortgage-backed securities, the type of security. The term to maturity of the underlying instrument is the term to maturity of the deliverable security at the time of the maturity of the futures or forward contract. The haircut on a futures or forward position on a non-mortgaged-backed instrument is to be entered in the category corresponding to the sum of the remaining time to maturity of the futures or forward contract and the maturity of the underlying instrument. Haircuts on futures and forwards on mortgage-backed securities are to be entered in the appropriate mortgage-backed securities category. The interim haircuts on long futures and forwards are positive (column 13), and on short futures and forwards, negative (column 14).

Columns 15 and 16—Under “Gross Interim Haircuts—Options” enter, in the category in which the instrument directly underlying the contract would be entered, the lesser of (1) the market value of the option or (2) the net immediate position interim haircut on the underlying cash instrument or gross futures interim haircut on the underlying futures contract. Note that in the case of an option on a futures contract the category in which the option contract is to be entered is the sum of the remaining time to maturity of the futures or forward contract and the maturity of the instrument underlying the futures or forward contract. The haircut factor used to determine the gross futures interim haircut is that factor corresponding to the term to maturity of the deliverable security at the time of the maturity of the futures or forward contract. Gross option haircuts on purchased calls and sold puts are positive, those on sold calls and purchased puts are negative.

Column 17—Under “Aggregate Interim Haircuts (+)” enter in the appropriate category, the sum of any positive net immediate position interim haircut (column 12) and the positive gross option (column 15) and gross futures and forward (column 13) interim haircuts for that category.

Column 18—Under “Aggregate Interim Haircuts (−)” enter in the appropriate category, the sum of any negative net immediate position interim haircut (column 12) and the negative gross option (column 16) and gross futures and forward (column 14) interim haircuts for that category.

Column 19—Under “Futures and Options Offset Portions” enter, in the appropriate category, the lesser of the absolute values of the positive and negative aggregate interim haircuts (columns 17 and 18) for that category.

The total futures and options offset portion is the sum of the values in column 19 under “Futures and Options Offset Portions.”

The total futures and options offset haircut is the total futures and options offset portion multiplied by a factor of 20 percent and is carried to line 2b, Schedule A.

Column 20—Enter in the appropriate category under “Residual Position Interim Haircuts” the sum, or net value, of the positive and negative aggregate interim haircuts. Carry this to column 20 on Schedule E.

Schedule E is used to calculate the hedging disallowance and residual net position haircuts which are then carried to Schedule A. The purpose of Schedule E is to hedge positions in different categories in order to reduce total haircuts. Netting the residual position interim haircuts reflects the risk reduction inherent in hedges between positions in different categories where the price volatility is reasonably well correlated.

Section 402.2(f)(3) of the rule specifies the hedging disallowance haircut factors for the category pairs. Netting of residual position interim haircuts is permitted only between any two categories for which a hedging disallowance haircut factor is specified. Hedging disallowance haircuts are similar to offset haircuts in that they are applied to the smaller of the two residual position interim haircuts and represent the portion of the hedge being “disallowed.” A hedging disallowance haircut is determined each time two residual position interim haircuts are netted.

There are three levels of permissible netting corresponding to the three hedging disallowance haircut factors: The 20 percent, 30 percent, and 40 percent levels. It is not necessary to net all possible pairs at any one level. A greater reduction in total haircuts can sometimes be obtained by choosing not to net a pair at one level (e.g., the 20 percent level) so that one element of the pair can be netted against a third category at another level (e.g., the 30 percent level).

Column 20—Transfer column 20, “Residual Position Interim Haircuts,” from Schedule D. If there are no futures or options positions, transfer instead column 12, “Net Immediate Positions—Interim Haircuts,” from Schedule C.

Column 21—Use the matrix at 17 CFR 402.2(f)(3) to determine the categories from which the residual position interim haircuts may be paired at the 20 percent level. For each pair multiply the smaller of the absolute values of the two residual position interim haircuts by the hedging disallowance haircut factor of 20 percent, and, in the category of the smaller, enter the resulting hedging disallowance haircut.

Column 22—For each pair being netted at this level, enter under “Net Residual Position Interim Haircuts” (1) the sum, or net value, of the two residual position interim haircuts (and/or net residual position interim haircuts) in the category of the larger (in absolute value) of the two interim haircuts that were netted, and (2) a zero in the category of the smaller.

These net residual position interim haircuts replace the residual position interim haircuts (or net residual position interim haircuts) from which they were derived. Net residual position interim haircuts can in turn be used in any other allowable netting exactly as residual position interim haircuts would be. If further netting of that category at the same level is permissible and possible, it will be necessary to replace the net residual position interim haircut involved with a new (and smaller) net residual position interim haircut in column 22.

Since the net residual position interim haircut in any category containing a hedging disallowance haircut is zero, further netting with any such category is impossible.

After all netting has been completed for category pairs with a 20 percent hedging disallowance haircut factor, move on to column 23.

Column 23—Use the matrix at 17 CFR 402.2(f)(3) to determine the categories from which the residual position interim haircuts and/or net residual position interim haircuts may be paired at the 30 percent level. In each category, the newest (and smallest) net residual position interim haircut determined by netting at the 20 percent level replaces the old value and must be used in hedging in that category at higher levels. For each pair being netted, multiply the smaller of the absolute values of the two (net) residual position interim haircuts by the hedging disallowance haircut factor of 30 percent, and in the category of the smaller, enter the resulting hedging disallowance haircut.

Column 24—For each pair being netted at this level, enter under “Net Residual Position Interim Haircuts” (1) the sum, or net value, of the two residual position interim haircuts and/or net residual position interim haircuts in the category of the larger (in absolute value) of the two interim haircuts that were netted, and (2) a zero in the category of the smaller.

These net residual position interim haircuts replace the residual position interim haircuts (or net residual position interim haircuts) from which they were derived. Net residual position interim haircuts can in turn be used in any other allowable netting exactly as residual position interim haircuts would be. If further netting of that category at the same level is permissible and possible, it will be necessary to replace the net residual position interim haircut involved with a new (and smaller) net residual position interim haircut.

After all netting has been completed for category pairs with a 30 percent hedging disallowance haircut factor, continue to column 25.

Column 25—Use the matrix at 17 CFR 402.2(f)(3) to determine the categories from which the residual position interim haircuts and/or net residual position interim haircuts may be paired at the 40 percent level. In each category, any new net residual position interim haircut determined by netting at the 20 or 30 percent level replaces the old value and must be used in hedging with that category at the 40 percent level. For each pair being netted, multiply the smaller of the absolute values of the two (net) residual position interim haircuts by the hedging disallowance haircut factor of 40 percent and, in the category of the smaller, enter the resulting hedging disallowance haircut.

Column 26—For each pair being netted at this level, enter under “Net Residual Position Interim Haircuts” (1) the sum, or net value, of the two (net) residual position interim haircuts in the category of the larger (in absolute value) of the two interim haircuts that were netted, and (2) a zero in the category of the smaller. If further netting of that category at the same level is permissible and possible, it will be necessary to replace the net residual position interim haircut involved with a new (and smaller) net residua1 position interim haircut.

Column 27—When all possible (net) residual position interim haircuts have been netted, enter under “Hedging Disallowance Haircuts” all hedging disallowance haircuts calculated in the netting procedures, each in its appropriate category.

Enter under “Total Hedging Disallowance Haircut” the sum of all the hedging disallowance haircuts entered in column 27. Carry to Schedule A, line 2c.

Column 28—Under “Qualified Netting Interim Haircuts” enter in the appropriate category the absolute value of the haircut given under “Net Residual Position Interim Haircut” at the highest hedging disallowance factor used for that category (columns 26, 24, or 22). This value will also be the smallest of the net residual position interim haircuts in that category. If the position in a given category was not used in hedging then enter the absolute value of the residual position interim haircut from column 20.

Sum the qualified netting interim haircuts, enter this value under “Residual Net Position Haircut,” and carry to Schedule A, line 2d."
17:17:5.0.2.1.3.0.43.4,17,Commodity and Securities Exchanges,IV,A,402,PART 402—FINANCIAL RESPONSIBILITY,,,,§ 402.2b [Reserved],SEC,,,,
17:17:5.0.2.1.3.0.43.5,17,Commodity and Securities Exchanges,IV,A,402,PART 402—FINANCIAL RESPONSIBILITY,,,,§ 402.2c Appendix C—Consolidated computations of liquid capital and total haircuts for certain subsidiaries and affiliates.,SEC,,,,"(a)  Consolidation.  (1) A government securities broker or dealer (the “parent broker or dealer”), in computing its liquid capital and total haircuts pursuant to § 402.2:

(i) Shall consolidate in a single computation of liquid capital the assets and liabilities of any subsidiary or affiliate for which the parent broker or dealer guarantees, endorses, or assumes directly or indirectly the obligations or liabilities if the parent broker or dealer has obtained the opinion of counsel described in paragraph (b) of this section with respect to such subsidiary or affiliate;

(ii) May not consolidate in a single computation of liquid capital the assets and liabilities of any subsidiary or affiliate for which the parent broker or dealer guarantees, endorses, or assumes directly or indirectly the obligations or liabilities if the parent broker or dealer has not obtained the opinion of counsel described in paragraph (b) of this section with respect to such subsidiary or affiliate, but in that event, the parent broker or dealer shall compute its total haircuts by adding the total haircuts of each such subsidiary or affiliate computed in accordance with the provisions of § 402.2 to the haircuts of the parent broker or dealer computed separately in accordance with the provisions of § 402.2; and

(iii) May consolidate in its computation of liquid capital the assets and liabilities of any majority owned and controlled subsidiary or affiliate for which the parent broker or dealer does not guarantee, endorse or assume directly or indirectly the obligations or liabilities if the parent broker or dealer has obtained the opinion of counsel described in paragraph (b) of this section with respect to such subsidiary or affiliate.

(2) With respect to any subsidiary or affiliate whose assets and liabilities are consolidated in the parent broker's or dealer's computation of liquid capital according to the provisions of paragraph (a)(1)(i) or (a)(1)(iii) of this section, the parent broker or dealer shall compute its haircuts in accordance with the provisions of § 402.2 as if the consolidated entity were one firm, or, in the alternative, shall add the total haircuts of each consolidated subsidiary or affiliate computed in accordance with the provisions of § 402.2 to the haircuts of the parent broker or dealer computed separately in accordance with the provisions of § 402.2.

(b)  Required counsel opinion.  The opinion of counsel referred to in paragraph (a) of this section shall demonstrate to the satisfaction of the Commission, through the Designated Examining Authority, that net asset values, or the portion thereof related to the parent broker's or dealer's ownership interest in a majority owned and controlled subsidiary or affiliate, may be caused by the parent broker or dealer or an appointed trustee to be distributed to the parent broker or dealer within 30 calendar days. Such opinion shall also set forth the actions necessary to cause such a distribution to be made, identify the parties having the authority to take such actions, identify and describe the rights of other parties or classes of parties, including but not limited to customers, general creditors, subordinated lenders, minority shareholder employees, litigants and governmental or regulatory authorities, who may delay or prevent such a distribution and such other assurances as the Commission or the Designated Examining Authority by rule or interpretation may require. Such opinion shall be current and periodically renewed in connection with the parent broker's or dealer's annual audit pursuant to § 240.17a-5 of this title, as made applicable to government securities brokers or dealers by § 405.2 of this chapter, or upon any material change in circumstances.

(c)  Principles of consolidation.  The following minimum and non-exclusive requirements shall govern the consolidation of a subsidiary or affiliate in the computation of total liquid capital and total haircuts of a government securities broker or dealer pursuant to this section:

(1) The total liquid capital of the government securities broker or dealer shall be reduced by the estimated amount of any taxes reasonably anticipated to be incurred upon distribution of the assets of the subsidiary or affiliate.

(2) Liabilities of a consolidated subsidiary or affiliate that are subordinated to the claims of present and future creditors pursuant to a satisfactory subordination agreement shall not be added to consolidated net worth unless such subordination extends also to the claims of present or future creditors of the parent broker or dealer and all consolidated subsidiaries.

(3) Subordinated liabilities of a consolidated subsidiary or affiliate that are consolidated in accordance with paragraph (c)(2) of this section may not be prepaid, repaid or accelerated if any of the entities included in such consolidation would otherwise be unable to comply with the provision of § 240.15c3-1d of this title, as modified by § 402.2d.

(4) Each government securities broker or dealer included within the consolidation shall at all times be in compliance with the liquid capital or net capital requirement to which it is subject.

(d)  Certain Precluded Acts.  Even if consolidation is not required or allowed under paragraph (a) of this section, no parent broker or dealer shall guarantee, endorse or assume directly or indirectly any obligation or liability of a subsidiary or affiliate unless the obligation or liability is reflected in the parent broker's or dealer's computation of liquid capital."
17:17:5.0.2.1.3.0.43.6,17,Commodity and Securities Exchanges,IV,A,402,PART 402—FINANCIAL RESPONSIBILITY,,,,"§ 402.2d Appendix D—Modification of § 240.15c3-1d of this title, relating to satisfactory subordination agreements, for purposes of § 402.2.",SEC,,,"[52 FR 27931, July 24, 1987, as amended at 59 FR 53731, Oct. 26, 1994]","Section 240.15c3-1d of this title shall apply to government securities brokers and dealers subject to the requirements of § 402.2 with the following modifications.

(a) References to “broker or dealer” include government securities brokers and dealers.

(b) References to “17 CFR 240.15c3-1” mean § 402.2.

(c) Section 240.15c3-1d(a)(2)(iii) is modified to read as follows:

“(iii) The term “Collateral Value” of any securities pledged to secure a secured demand note shall mean the market value of such securities after giving effect to the haircuts specified in § 402.2a of this title.”

(d) References to “17 CFR 240.15c3-1d” mean that section as modified by this section.

(e) Section 240.15c3-1d(b)(6)(iii) is modified to read as follows:

“(iii) The secured demand note agreement may also provide that, in lieu of the procedures specified in the provisions required by paragraph (b)(6)(ii) of this section, the lender, with the prior written consent of the government securities broker or dealer and the Examining Authority for such broker or dealer, may reduce the unpaid principal amount of the secured demand note. After giving effect to such reduction, the liquid capital, as defined in § 402.2(d) of this title, of the government securities broker or dealer may not be less than 150% of the government securities broker's or dealer's total haircuts, as defined in § 402.2(g) of this title. No single secured demand note shall be permitted to be reduced by more than 15% of its original principal amount and after such reduction no excess collateral may be withdrawn. No Examining Authority shall consent to a reduction of the principal amount of a secured demand note if, after giving effect to such reduction, liquid capital after deducting total haircuts would be less than 120% of the minimum dollar amount required by § 402.2(b) or § 402.2(c) of this title as applicable.”

(f) Section 240.15c3-1d(b)(7) is modified to read as follows:

“(7) A government securities broker or dealer at its option but not at the option of the lender may, if the subordination agreement so provides, make a Payment of all or any portion of the Payment Obligation thereunder prior to the scheduled maturity date of such Payment Obligation (hereinafter referred to as a “Prepayment”), but in no event may any Prepayment be made before the expiration of one year from the date such subordination agreement became effective. This restriction shall not apply to temporary subordination agreements which comply with the provisions of paragraph (c)(5) of this section. No Prepayment shall be made if, after giving effect thereto (and to all Payments of Payment Obligations under any other subordinated agreements then outstanding the maturities or accelerated maturities of which are scheduled to fall due within six months after the date such Prepayment is to occur pursuant to this provision or on or prior to the date on which the Payment Obligation in respect of such Prepayment is scheduled to mature disregarding this provision, whichever date is earlier) without reference to any projected profit or loss of the government securities broker or dealer, the liquid capital, as defined in § 402.2(d) of this title, of the government securities broker or dealer would be less than 150% of the government securities broker's or dealer's total haircuts, as defined in § 402.2(g) of this title. Notwithstanding the above, no Prepayment shall occur without the prior written approval of the Examining Authority for such government securities broker or dealer.”.

(g) Section 240.15c3-1d(b)(8) is modified to read as follows:

“(i) The Payment Obligation of the government securities broker or dealer in respect of any subordination agreement shall be suspended and shall not mature if, after giving effect to Payment of such Payment Obligation (and to all Payments of Payment Obligations of such broker or dealer under any other subordination agreement(s) then outstanding which are scheduled to mature on or before such Payment Obligation), either the liquid capital, as defined in § 402.2(d) of this title, of the government securities broker or dealer would be less than 150% of the government securities broker's or dealer's total haircuts, as defined in § 402.2(g) of this title, or the government securities broker's or dealer's liquid capital after deducting total haircuts would be less than 120% of the minimum dollar amount required by § 402.2(b) or § 402.2(c) of this title, as applicable. The subordination agreement may provide that if the Payment Obligation of the government securities broker or dealer thereunder does not mature and is suspended as a result of the requirement of this paragraph (b)(8) for a period of not less than six months, the government securities broker or dealer shall thereupon commence the rapid and orderly liquidation of its business but the right of the lender to receive Payment, together with accrued interest or compensation, shall remain subordinate as required by the provisions of 17 CFR 240.15c3-1 and 240.15c3-1d.”.

(h) Section 240.15c3-1d(b)(10)(ii)(B) is modified to read as follows:

“(B) The liquid capital, as defined in § 402.2(d) of this title, of the government securities broker or dealer being less than 120% of total haircuts, as defined in § 402.2(g) of this title, throughout a period of 15 consecutive business days, commencing on the day the broker or dealer first determines and notifies the Examining Authority for the government securities broker or dealer, or the Examining Authority or the Commission first determines and notifies the government securities broker or dealer of such fact;”.

(i) Section 240.15c3-1d(c)(2) is modified to read as follows:

“(2)  Notice of Maturity or Accelerated Maturity.  Every government securities broker or dealer shall immediately notify the Examining Authority for such broker or dealer if, after giving effect to all Payments of Payment Obligations subordination agreements then outstanding which are then due or mature within the following six months without reference to any projected profit or loss of the broker or dealer, the liquid capital, as defined in § 402.2(d) of this title, of such government securities broker or dealer, would be less than 150% of total haircuts, as defined in § 402.2(g) of this title.”.

(j) Section 240.15c3-1d(c)(5)(i) is modified to read as follows:

“(i) For the purpose of enabling a government securities broker or dealer to participate as an underwriter of securities or other extraordinary activities in compliance with the capital requirements of § 402.2 of this title, a government securities broker or dealer shall be permitted, on no more than three occasions in any 12 month period, to enter into a subordination agreement on a temporary basis which has a stated term of no more than 45 days from the date such subordination agreement became effective. This temporary relief shall not apply to a government securities broker or dealer if, within the preceding thirty calendar days, it has given notice pursuant to § 405.3, or if immediately prior to entering into such subordination agreement, the liquid capital, as defined in § 402.2(d) of this title, of such broker or dealer would be less than 150% of total haircuts, as defined in § 402.2(g) of this title, or the amount of its then outstanding subordination agreements exceeds the limits specified in § 240.15c3-1(d). Such temporary subordination agreement shall be subject to all other provisions of this appendix D.”.

(k) Section 240.15c3-1d(c)(5)(ii)(A) is modified to read as follows:

“(A) After giving effect thereto (and to all Payments of Payment Obligations under any other subordinated agreements then outstanding the maturity or accelerated maturities of which are scheduled to fall due within six months after the date such prepayment is to occur pursuant to this provision or on or prior to the date on which the Payment Obligation in respect of such prepayment is schedu1ed to mature disregarding this provision, whichever date is earlier) without reference to any projected profit or loss of the government securities broker or dealer, the liquid capital, as defined in § 402.2(d) of this title, of such broker or dealer, would be less than 180% of total haircuts, as defined in § 402.2(g) of this title.”."
20:20:2.0.1.1.3.0.1.1,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.05 Scope and purpose of this part.,SSA,,,,"(a) The purpose of this part is to describe the Social Security Administration's (SSA) policies and procedures for implementing the requirements of the Freedom of Information Act (FOIA) 5 U.S.C. 552. The FOIA mandates disclosure to the public of Federal agency records unless specific exemptions apply. The FOIA also requires an agency to proactively disclose records and make certain records available for public inspection.

(b) The rules in this part describe how SSA makes records available to the public, including:

(1) What constitutes a proper request for records;

(2) How to make a FOIA request;

(3) Who has the authority to release and withhold records;

(4) What fees may be charged to process a request for records;

(5) The timing of determinations regarding release;

(6) The exemptions that permit the withholding of records;

(7) Requesters' right to seek assistance from the FOIA Public Liaison;

(8) Requesters' right to appeal the agency's FOIA determination;

(9) Requesters' right to seek assistance from the Office of Government Information Services and then go to court if they still disagree with our release determination; and

(10) The records available for public inspection.

(c) The rules in this part do not revoke, modify, or supersede SSA's regulations relating to disclosure of information in part 401 or 403 of this chapter."
20:20:2.0.1.1.3.0.1.10,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.50 FOIA Officer's authority.,SSA,,,,"(a)  Release determination.  Only the Deputy Executive Director for OPD or their designee is authorized to make determinations about:

(1) Release or withholding of records;

(2) Expedited processing;

(3) Charging or waiver of fees; and

(4) Other matters relating to processing a request for records under this part.

(b)  Determination provided in writing.  The FOIA Officer's determination is provided in writing to the requester via emailed communication or, in the absence of the requester's email address, via U.S. postal mail. If the requester disagrees with the FOIA Officer's determination in response to items identified in paragraph (a) of this section, the requester may appeal the determination to the Executive Director for OPD, as described in § 402.105."
20:20:2.0.1.1.3.0.1.11,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.55 Referrals and consultations.,SSA,,,,"(a)  Consultation and referral.  When reviewing records located by SSA in response to a request, SSA will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, SSA will proceed in one of the following ways:

(1)  Referral of FOIA records in whole or in part to an outside agency.  We will notify the requester in writing when we opt to refer records in whole or in part to another agency for direct response from that agency, including the name(s) or the agency(s) to which the record was referred and that agency's FOIA contact information, unless notification would cause harm to an interest protected under the FOIA. In such instances, in order to avoid harm to an interest protected by an applicable exemption, we coordinate to seek the view of the originating agency.

(2)  Agency consultation.  If a request is for records that were created by, or provided to us by, another agency that is not subject to the FOIA, we may consult with that agency, as described in paragraph (b) of this section.

(b)  Consultation with another agency or entity.  If a request is for records that originated with SSA but contain information of interest to another agency or entity, we may consult with the other agency or entity prior to issuing our release determination to the requester."
20:20:2.0.1.1.3.0.1.12,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.60 How does SSA process FOIA requests?,SSA,,,,"(a)  Acknowledgement.  (1) If we receive a FOIA request that will take longer than 10 working days to process, we will provide an acknowledgment. The acknowledgement email or letter restates the FOIA request and provides the requester with the request's tracking number.

(2) If we require clarification to process the FOIA request, we will contact the requester either via email, U.S. postal mail, or phone call. We attempt to contact requesters twice. If we do not receive a response to our clarification attempts within 30 calendar days from the date of our first contact to the requester, we will close the FOIA request due to insufficient information.

(b)  Perfected requests.  FOIA requests are considered “perfected,”  i.e.,  the 20-working day statutory time begins, when the request meets the requirements of the proper FOIA request listed in § 402.30. There may be times that we require more information from the requester after perfecting a request. The 20-working day period may be extended in unusual circumstances by written notice to the requester. See paragraph (d) of this section.

(c)  Multi-tracking procedures.  FOIA requests are categorized simple, complex, or expedited. Unless granted expedited processing, we process FOIA requests in each track according to a first-in, first-out basis.

(1)  Simple.  For most non-expedited requests, we make a determination about release of the record(s) requested within 20-working days.

(2)  Complex.  We will place into a complex processing queue any request that cannot be completed within 20-working days due to the complex nature of the request, including consultation with components that may maintain records subject to the request. We make good faith efforts to notify requesters in writing if it is necessary for us to take additional time to process a request and of the requester's right to seek dispute resolution services with the Office of Government Information Services. See § 402.100.

(3)  Expedited processing.  Unless granted expedited processing, we process FOIA requests according to a first-in, first-out basis. See § 402.65 for information on expedited processing.

(d)  Unusual circumstances.  (1) Unusual circumstances exist when there is a need to:

(i) Search for and collect records from SSA components or field locations that are separate from OPD;

(ii) Search for, collect, and review a voluminous number of records that are part of a single request; or

(iii) Consult with two or more SSA components or another agency having substantial interest in the request before releasing the records.

(2) Within the unusual circumstances letter to the requester, we will provide an estimated date that we will contact the requester with the applicable fee notice and/or further correspondence. We will notify the requester of the date by which we estimate completing the request. We will also advise the requester that they may modify or narrow the scope of their request.

(3) When unusual circumstances exist, we will process the request under the complex track.

(e)  Aggregating requests.  We may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester or by a group of requesters acting in concert, constitute a single request, involving clearly related matters, which would otherwise involve unusual circumstances. In the event requests are aggregated, they will be treated as one request for estimating response time and calculating fees.

(f)  Fee notice.  FOIA requesters are issued a fee notice that informs them of the estimated search, review, and duplication time associated with processing their FOIA request. For more information on fees, see §§ 402.70 through 402.80.

(g)  Tolling.  (1) We may stop or toll the 20 working days in two circumstances:

(i) We may stop the clock once if we require additional information regarding the specifics of the request; and

(ii) We may stop the clock as many times as needed regarding fee assessments.

(2) The processing time will resume upon our receipt of the requester's response. There may be instances when we require multiple clarifications on a FOIA request. After the first request for clarification, any additional clarifications are performed without tolling the clock. If we do not receive a response to our clarification attempts within 30 calendar days from the date of our first contact to the requester, we will close the FOIA request.

(h)  Retrieving records.  We are required to furnish copies of records only when they are in our possession or we can retrieve them from storage. We will make reasonable efforts to search for records except when such efforts would significantly interfere with the operation of our automated information system(s). The Federal Government follows National Archives and Records Administration rules on record retention. Records are retained or destroyed under the guidelines of the Federal Records Act.

(i)  No records determinations.  We will search for records to satisfy a request using methods that can be reasonably expected to produce the requested records. Nevertheless, we may not be able to always find the records requested using the information provided by the requester, or they may not exist. If we advise that we have been unable to find the records despite a diligent search, the requester may appeal the no records determination to the Executive Director for OPD, as described in § 402.105.

(j)  Furnishing records.  We will furnish copies of records in whole or in-part, unless we reasonably foresee that disclosure would harm an interest protected by a FOIA exemption or if disclosure is prohibited by law. When information within a responsive record(s) is exempt from disclosure, the information is redacted and the applicable FOIA exemption(s) are noted within the redacted cell. We will make reasonable efforts to provide the records in the form or format requested if the record is readily reproducible in that form or format. We may provide individual records as we process them on a rolling basis, or we may release all responsive records once the request is completed. See § 402.95 for more information on SSA's release of records.

(k)  Directing a requester to another agency.  If a request is for records that are not SSA records for purposes of the FOIA, and we believe the records may be maintained by another agency, we may advise the requester to submit their request to that other agency. In such cases, we will provide the requester with the other agency's name in our response letter. Our recommendation that the requester submit their request to the other agency is not a guarantee the other agency will have or disclose the records requested.

(l)  Burdensome requests.  The FOIA requires an agency to provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format. We will not search or produce records in response to a FOIA request that we determine would be unduly burdensome to process. FOIA requests are determined to be unreasonably burdensome when processing the FOIA request would significantly interfere with the ongoing operation of the agency's programs."
20:20:2.0.1.1.3.0.1.13,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.65 Expedited processing.,SSA,,,,"(a) Expedited processing must be requested at the same time as the FOIA request. We provide expedited processing when the requester can demonstrate a “compelling need” for the requested information:

(1) When there is an imminent threat to the life or safety of a person;

(2) When the requester is primarily engaged in disseminating information, and shows an urgency to inform the public about actual or alleged government activities; or

(3) When the requester can show, in detail and to our satisfaction, that a prompt response is needed because the requester may be denied a legal right, benefit, or remedy without the requested information, and that it cannot be obtained elsewhere in a reasonable amount of time.

(b) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. We will notify the requester within 10 calendar days of receipt of the request for expedited processing of our decision to grant or deny expedited processing. Only the FOIA Officer may make the decision to grant or deny expedited processing. Requests granted expedited processing will be given priority and processed as soon as practicable. Requests that do not meet the “compelling need” criteria, will be processed normally. If we do not grant the request for expedited processing, the requester may appeal the denial to the Executive Director for OPD. In the appeal letter, the requester should explain why they believe their request demonstrates a “compelling need,” such as describing how the request meets the criteria in paragraphs (a)(1) through (3) of this section. The process described in § 402.105 will also apply to these appeals."
20:20:2.0.1.1.3.0.1.14,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.70 Fees associated with processing FOIA requests.,SSA,,,,"(a)  Charging authorities —(1)  Section 1106(c).  Section 1106(c) of the Social Security Act (42 U.S.C. 1306(c)) allows the agency to charge for FOIA requests that are not directly related to SSA's administration of the Social Security Act. See § 402.80 for information on the agency's authorization under section 1106(c) to charge requesters. Requesters may request a fee waiver, as described in § 402.85.

(2)  FOIA fee categories.  The FOIA establishes three fee categories of requesters,  i.e.,  commercial use, non-commercial scientific or educational institutions and representatives of the news media; and other requesters. The category of the requester determines the fees that may be charged; see § 402.75 for the FOIA fee schedule. Requesters may request a fee waiver, as described in § 402.85.

(b)  Hourly rate when charging under section 1106(c) and the FOIA fee categories.  (1) When we search for and review records, we charge an hourly rate, based in 15-minute increments, depending on the grade(s) of the employee(s) and/or contractors performing the search and review. The hourly rate is the same when charging under the FOIA fee provisions or section 1106(c) of the Social Security Act. SSA uses the current General Schedule (GS) salary table for the locality pay area of Washington-Baltimore-Arlington, DC-MD-VA-WV-PA. We use the following criteria to compute our hourly rates for search or review:

(i) When performed by employees at grade GS-1 through GS-8, SSA will charge an hourly rate based on the salary of a GS-5, step 7, employee;

(ii) When performed by a GS-9 through GS-14, SSA will charge an hourly rate based on the salary of a GS-12, step 4, employee; and

(iii) When performed by a GS-15 or above, SSA will charge an hourly rate based on the salary of a GS-15, step 7, employee.

(2) When work is performed by a contractor, we will charge an hourly rate based on the GS equivalent of the contractor's hourly pay rate. We compute the hourly rate by taking the current hourly rate for the specified grade and adding 16 percent of that rate to cover benefits and rounding to the nearest whole dollar. These rates are adjusted as Federal salaries change. Federal salary rates are available from the Office of Personnel Management. When a search and review involves employees at more than one of these GS levels, we will charge the rate appropriate for each. We may charge a fee for search time even if we are unable to locate any responsive records or the records are exempt from disclosure."
20:20:2.0.1.1.3.0.1.15,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.75 FOIA fee schedule.,SSA,,,,"(a)  Fee schedule category.  Requesters whom SSA charges under the FOIA fee schedule are subject to the following fees dependent upon their fee category:

(1)  Commercial.  Commercial use requesters are charged for search, review, and duplication.

(2)  Non-commercial educational or scientific institutions and representative of the news media.  Requesters that fit this category are charged for the duplication of documents. We will not charge requesters the copying costs for the first 100 pages of duplication.

(3)  Other.  If the FOIA request does not fall within a category described in paragraph (a)(1) or (2) of this section, we will charge for search and duplication; however, we will not charge for the first two hours of search time or for the duplication costs of the first 100 pages.

(b)  Certification.  If a requester asks for certification of the record(s) responsive to their FOIA request and OPD agrees to provide it, we will notify the requester of the appropriate certification fee via written correspondence.

(c)  Record(s) production and duplication —(1)  Electronic records.  We will charge the actual costs for producing and duplicating the record and the time spent by the employees or contractors in production, duplication, or otherwise processing the FOIA request, at the rates given in § 402.70(c).

(2)  Photocopying standard size pages.  For noncommercial requesters, we will charge $0.10 per page after the first 100 pages, which are free. The FOIA Officer may charge lower fees for particular documents where:

(i) The document has already been printed in large numbers;

(ii) The program office determines that using existing stock to answer this request, and any other anticipated FOIA requests, will not interfere with program requirements; and

(iii) The FOIA Officer determines that the lower fee is adequate to recover the prorated share of the original printing costs.

(3)  Photocopying odd-size documents.  For photocopying documents, such as punch cards or blueprints, or duplicating other records, such as tapes, we will charge the actual costs of operating the machine, plus the actual cost of the materials used, plus charges for the time spent by the operator, at the rates given in § 402.70(c).

(d)  Cost of service less than cost of issuing a bill.  We will not charge a fee when the cost of the service is less than the cost of sending the requester a bill. However, where an individual, organization, or governmental unit makes multiple separate requests, we will total the costs incurred and bill the requester for the services rendered.

(e)  Fee waiver.  We may waive or reduce the fee if we find that waiver is in the public interest. See § 402.85 for fee waiver information."
20:20:2.0.1.1.3.0.1.16,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.80 Charging under section 1106(c) of the Social Security Act.,SSA,,,,"Section 1106(c) of the Social Security Act permits the agency to charge the full cost to process requests for information for purposes not directly related to the administration of program(s) under the Social Security Act. This may be done notwithstanding the fee provisions in FOIA, the Privacy Act, or any other provision of law. In responding to FOIA requests for non-program purposes, we will charge the full cost (both direct and indirect costs) of our services, regardless of the requester's fee categorization, unless the cost of the service is less than the cost of issuing a bill as stated in paragraph (b) of this section.

(a)  Full costs.  The agency may charge full costs for processing records or information requests, including but not limited to:

(1)  Search.  We may charge for search time even if we are unable to locate any responsive records or the records are exempt from disclosure. We will notify the requester in writing if the records estimated as responsive are determined unreasonably burdensome for the agency to process and/or the search would cause significant interference with the operation of SSA's automated information systems.

(2)  Review.  Review includes the reviews performed at any level (staff through executive), including but not limited to review by multiple people and offices.

(3)  Production and duplication of record(s).  We may charge the full cost of the systems' processing ( e.g.,  computer search time, computer processing database retrieval), materials used to produce and duplicate the requested record(s), and time spent by agency employee(s) and/or contractor(s) in production, duplication, or otherwise processing the FOIA request.

(4)  Certification.  We will charge the full costs for certification.

(5)  Employee's time.  The full cost of an employee's time includes fringe benefits and overhead costs, such as rent and utilities.

(6)  Forwarding/delivering materials.  If special arrangements for forwarding material are requested, we will charge the requester the full cost of this service ( e.g.,  if express mail or a commercial delivery service is requested). If no special forwarding arrangements are requested, we will charge the requester the full cost of the service, including the U.S. Postal Service cost.

(7)  Performing other special services.  If we agree to provide any special services requested, we will charge the full cost of the time of the employee(s) or contractor(s) who perform the service, plus the full cost of any systems processing time and materials that the employee or contractor uses.

(b)  Cost of service less than cost of issuing a bill.  We will not charge a fee when the cost of the service is less than the cost of sending the requester a bill. However, where an individual, organization, or governmental unit makes multiple separate requests, we will total the costs incurred and bill the requester for the services rendered.

(c)  Standard administrative fees for non-program information.  The information in this part does not revoke, modify, or supersede the schedule of standard administrative fees the agency charges for specified non-program information requests.

(d)  Non-program purpose.  Non-program purposes constitute any purpose that is not program related.

(1) We consider a request to be program related if:

(i) The information must be disclosed under the Social Security Act (Act); or

(ii) The information will be used for a purpose which is directly related to the administration of a program under the Act for which SSA has responsibility. In deciding whether this paragraph (d)(1)(ii) applies, the major criteria SSA considers is whether the information is:

(A) Needed to pursue a benefit under a program that SSA administers under the Act.

(B) Needed solely to verify the accuracy of information obtained in connection with a program that SSA administers under the Act.

(C) Needed in connection with an activity under SSA's purview which is authorized under the Act.

(D) Needed by an employer to carry out taxpaying responsibilities under the Federal Insurance Contributions Act or section 218 of the Act.

(2) We will consider each request on a case-by-case basis when the criteria in this paragraph (d) are not met but the requester claims a request is for a program-related purpose for another reason. We will not conclude a request is program-related solely because the records sought are about programs administered by SSA or are claimed to be of public interest.

(e)  Disagreement with program or non-program determination.  Only the FOIA Officer has the authority to make the program/non-program decision. If a requester disagrees with the FOIA Officer's non-program determination, they may appeal the decision to the Executive Director for OPD. In the appeal letter, the requester should explain why they believe the request meets the requirements in paragraph (c) of this section. The process described in § 402.105 will also apply to these appeals."
20:20:2.0.1.1.3.0.1.17,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.85 Waiver of fees in the public interest.,SSA,,,,"A requester may request waiver or reduction of fees, whether charged under § 402.75 or § 402.80, if the release of the requested records is in the public interest. We will waive or reduce the fees we would otherwise charge if disclosure of the requested information:

(a) Is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and

(b) Is not primarily in the commercial interest of the requester.

(1)  Procedure for requesting a waiver or reduction.  A requester must make the request for a fee waiver or reduction in writing at the same time they make their request for records. The requester should explain with reasonable specificity why they believe a waiver or reduction is proper under the analysis in paragraphs (b)(2) and (3) of this section. Only the FOIA Officer may make the decision whether to waive, or reduce, the fees. If we do not completely grant the request for a waiver or reduction, the requester may appeal the denial to the Executive Director for OPD. In the appeal letter, the requester should explain why they believe the request meets the requirements in paragraphs (b)(2) and (3) of this section. The process prescribed in § 402.105 will also apply to these appeals.

(2)  Public interest.  We consider the factors below when analyzing whether disclosure is in the public interest:

(i) How the records pertain to the Federal Government's operations or activities;

(ii) Whether disclosure would reveal any meaningful information about Government operations or activities not already known to the public; and

(iii) Whether the contribution to public understanding of those operations or activities would be significant.

(iv) Regarding the above criteria, you must be reasonably specific in your waiver request as to the specific Government operation or activity and provide direct, clear (not remote or attenuated) connections to the meaningful information you seek. Generalized interest in government programs is not reasonably specific to grant waiver.

(3)  Not primarily in requester's commercial interest.  If the disclosure is determined to be in the public interest as described in paragraph (b)(2) of this section, we will then determine whether it also furthers the requester's commercial interest and, if so, whether this effect outweighs the advancement of that public interest. We consider the following factors when analyzing whether disclosure is not primarily in the requester's commercial interest:

(i) Would the disclosure further a commercial interest of the requester, or of someone on whose behalf the requester is acting?

(ii) If disclosure would further a commercial interest of the requester, would that effect outweigh the advancement of the public interest defined in paragraph (b)(2) of this section? Which effect is primary?

(4)  Burden on SSA to produce the record(s).  If the disclosure meets the requirements in paragraphs (b)(2) and (3) of this section, we reserve the right to charge a fee if special services are needed to provide the records.

(5)  Deciding between waiver and reduction.  If the disclosure meets the requirements in paragraphs (b)(2) and (3) of this section, we will normally waive fees. However, in some cases we may decide only to reduce the fees. For example, we may do this when disclosure of some but not all of the requested records meet the fee waiver criteria."
20:20:2.0.1.1.3.0.1.18,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.90 Notification of fees and prepayment requirements.,SSA,,,,"Requesters must agree to pay the fee, whether charged under § 402.75 or § 402.80, before we will begin the search for record(s).

(a)  Cost estimate.  OPD will issue a fee notice to the requester for the processing of their request for records that includes an estimated fee based on the time we estimate it will take to process the record(s) requested. We issue fee notices via email or, when the requester does not provide an email address, via U.S. postal mail.

(b)  Advanced payment information required.  The requester must agree to pay the estimated fee provided within the fee notice and provide the agency with payment information within 30 calendar days from the date of our fee notice. Payment information is required before OPD will begin the search for the requested record(s). Unless otherwise specified in the schedule of standard administrative fees the agency charges for specified non-program information requests, OPD will process payment when the request is closed,  i.e.,  when the FOIA Officer issues a decision on records release. If the payment information provided by the requester expires during the course of OPD's processing of the FOIA request, the requester must provide updated payment information. If updated payment information is not provided within 30 calendar days of our written request for the payment information, we reserve the right to administratively close the request.

(c)  Changes in estimated fee.  (1) If the time spent to search for records is more or less than the time estimated in the fee notice, OPD will issue the requester a revised fee notice after the responsive component(s) performs the records search and retrieval.

(2) If the record(s) provided to OPD for review are more or less than those from which OPD estimated search and review time, OPD will issue the requester a revised fee notice after the responsive component(s) perform the records search and retrieval.

(3) OPD will either dispose of the payment information or return the payment information to the requester when OPD issues the revised fee notice.

(4) The requester must agree to pay the revised fee before we will continue processing the request. If the requester disagrees with the revised fee, the requester may appeal to the Executive Director for OPD. Appeals will be processed as described in § 402.105.

(d)  Prompt payment.  We will administratively close the FOIA request if we do not receive a response or appeal within 30 calendar days from the date of the fee notice. “Response” includes:

(1) Requesting to narrow the scope of the request; or

(2) Providing payment in response to the fee notice. Appeals will be processed as described in § 402.105.

(e)  Methods of payment.  We accept payment by check or money order made payable to the Social Security Administration (SSA), as well as by credit card (MasterCard, Visa, Discover, American Express, or Diner's Club)."
20:20:2.0.1.1.3.0.1.19,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.95 Release of records.,SSA,,,,"(a)  Records previously released.  If we have released a record, or a part of a record, to others in the past, we will ordinarily release it to the requester, as well. However, we will not release it to a requester if a statute forbids this disclosure; an exemption applies that was not previously applicable; or if the previous release was unauthorized.

(b)  Withholding records.  Section 552(b) of the FOIA explains the nine exemptions under which we may withhold records requested under the FOIA. Within §§ 402.115 through 402.150, we describe the FOIA exemptions and explain how we apply them to disclosure determinations. In some cases, more than one exemption may apply to the same document. Section 552(b) of the FOIA, while providing nine exemptions from mandatory disclosure, does not itself provide any assurance of confidentiality by the agency.

(c)  FOIA library.  If the record(s) requested are already publicly available, either in our electronic FOIA library or elsewhere online, such as at  www.ssa.gov,  we will direct the requester to the publicly available record(s).

(d)  Poor copy.  If we cannot make a legible copy of a record to be released, we do not attempt to reconstruct it. Instead, we furnish the best copy possible and note its poor quality in our reply."
20:20:2.0.1.1.3.0.1.2,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.10 Definitions.,SSA,,,,"As used in this part:

Agency  means the Social Security Administration (SSA). Agency may also refer to any executive department, military department, government corporation, government-controlled corporation, or other establishment in the executive branch of the Federal Government, or any independent regulatory agency. A private organization is not an agency even if it is performing work under contract with the Government or is receiving Federal financial assistance.

Chief FOIA Officer  means a senior official of SSA who has an agency-wide responsibility for ensuring efficient and appropriate compliance with the FOIA, monitoring implementation of the FOIA throughout the agency, and making recommendations to the head of the agency to improve the agency's implementation of the FOIA. The Commissioner of SSA designated the General Counsel as the Chief FOIA Officer for SSA. The Chief FOIA Officer or the Chief FOIA Officer's designee is authorized to make final decisions in response to appeals of the FOIA Officer's determinations.

Commercial interest  includes interests relating to business, trade, and profit. These interests could be present regardless of the identity of the requester ( e.g.,  individual, non-profit corporation, for-profit corporation). The interest of a representative of the news media in using the information for news dissemination purposes will not be considered a commercial interest.

Commercial use  request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. An agency's decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester's intended use of the information. Agencies will notify requesters of their placement in this category.

Component  means each separate office, division, commission, service, center, or administration within SSA that may maintain agency records subject to a request under the FOIA.

Duplication  means the process of reproducing a copy of a record, or of the information contained in it, to the extent necessary to respond to a request. Copies include paper, electronic records, audiovisual materials, and other formats of agency records.

Educational institution  is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with their role at the educational institution. To qualify for this category, a requester must show that the FOIA request is authorized by, and is made under the auspices of or in connection with the requester's role at a qualifying institution and that the records are sought to further a scholarly research goal of the institution, and not for a commercial use or purpose, or for individual use or benefit. SSA may seek verification from the requester that the request is in furtherance of scholarly research and will advise requesters of their placement in this category.

Exemption  means one of the nine exemptions to the mandatory disclosure of records permitted under section 552(b) of the FOIA.

Expedited processing  means the process set forth in the FOIA that allows requesters to request faster processing of their FOIA request, if they meet specific criteria noted in § 402.65.

Fee category  means one of the three categories established by the FOIA to determine whether a requester will be charged fees under FOIA for search, review, and duplication. The categories are: commercial use requests; scientific or educational institutions and news media requests; and all other requests.

Fee waiver  means the waiver or reduction of fees if a requester is able to demonstrate the requirements set forth in § 402.85.

FOIA Library  means an electronic location(s) that SSA uses to post records that are made available to the public without a specific request. SSA makes FOIA library records electronically available to the public through our website,  www.ssa.gov,  including at  www.ssa.gov/foia.  Posted records may include those provided under agency discretion and not required pursuant to FOIA.

FOIA Officer  means an SSA official whom the Commissioner of Social Security delegated the authority to release or withhold records; to assess, waive, or reduce fees in response to FOIA requests; and to make all other determinations regarding the processing of a FOIA request. In this capacity, the FOIA Officer is authorized to request and receive responsive records that may be maintained by other agency components. Except for records subject to proactive disclosure pursuant to subsection (a)(2) of the FOIA, only the FOIA Officer has the authority to release or withhold records or to waive fees in response to a FOIA request.

FOIA Public Liaison  means an agency official who reports to the agency Chief FOIA Officer and serves as a supervisory official to whom a requester can raise concerns about the service the requester received concerning the processing of the FOIA request. This individual is responsible for increasing transparency in the agency's FOIA business process, helping requesters understand the status of requests, and assisting in the resolution of disputes. The FOIA Public Liaison may be contacted via email to  FOIA.Public.Liaison@ssa.gov.

FOIA request  means a written request that meets the criteria in § 402.30.

Freedom of Information Act  or  FOIA  means the law codified at 5 U.S.C. 552 that provides the public with the right to request agency records from the Federal executive branch agencies.

Non-commercial scientific institution  means an institution that does not further the commercial, trade, or profit interests of any person or entity and is operated for the purpose of conducting scientific research whose results are not intended to promote any particular product or industry.

Numident  refers to the “Numerical Identification System,” the SSA system that contains information available on an Application for a Social Security Card (Form SS-5). The Numident record contains the name of the applicant, place of birth, and other information.

OGC  means the Office of the General Counsel.

Online FOIA portal  means the electronic application that SSA uses to process FOIA requests. The public may also submit requests directly to SSA via the online FOIA portal.

OPD  means the Office of Privacy and Disclosure.

Other requester  means any individual or organization whose FOIA request does not qualify as a commercial-use request, representative of the news media request (including a request made by a freelance journalist), or an educational or non-commercial scientific institution request.

Production  means the process of preparing the records for duplication, including the time spent in preparing the records for duplication ( i.e.,  materials used, records/database retrieval, employee and contractor time, as well as systems processing time).

Record(s)  means any information maintained by an agency, regardless of format, that is made or received in connection with official agency business that is under the agency's control at the time of the FOIA request. Record(s) includes any information maintained for an agency by a third party.

(1) Record(s) does not include personal records of an employee, or other information in formally organized and officially designated SSA libraries and FOIA library, where such materials are available under the rules of the particular library.

(2) Record(s) includes information maintained by the State Disability Determination Services related to performing the disability determination function and medical source information pertaining to consultative examinations performed for the Social Security program when obtained by, created on behalf of, or otherwise, in the control of SSA.

Redact  means delete or mark over.

Representative of the news media  means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn raw materials into a distinct work, and distributes that work to an audience. The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast news to the public at large and publishers of periodicals, including print and online publications that disseminate news and make their products available through a variety of means to the general public. We do not consider FOIA requests for records that support the news-dissemination function of the requester to be a commercial use. We consider “freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity as working for that entity. A publishing contract provides the clearest evidence that a journalist expects publication; however, we also consider a requester's past publication record. We decide whether to grant a requester media status on a case-by-case basis,.

Request  means asking for records, whether or not the requester refers specifically to the FOIA. Requests from Federal agencies, subpoenas, and court orders for documents are not included within this definition.

Review,  unless otherwise specifically defined in this part, means examining records responsive to a request to determine whether any portions are exempt from disclosure. Review time includes processing a record for disclosure ( i.e.,  doing all that is necessary to prepare the record for disclosure), including redacting the record and marking the appropriate FOIA exemptions. It does not include the process of resolving general legal or policy issues regarding exemptions.

Search  means the process of identifying, locating, and retrieving records responsive to a request, whether in hard copy or in electronic form or format, or by manual or automated/electronic means.

Special services  means performing additional services outside of that required under the FOIA to respond to a request. Examples include using an overnight mail service to send the agency's response to a FOIA request.

SS-5  means an Application for a Social Security Card. It is used to request an original, different, or replacement Social Security Card.

SSA  means the Social Security Administration.

Submitter  means any person or entity that provides trade secrets or commercial or financial information to the agency, and includes individuals, corporations, other organizational entities, and state and foreign governments.

Tolling  means temporarily stopping the running of a time limit. We may toll a FOIA request to seek clarification from the requester or to address fee issues, as further described in § 402.60(h).

Trade secrets and confidential commercial or financial information  means trade secrets and confidential commercial or financial information that is obtained by the agency from a submitter, such that it may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4)."
20:20:2.0.1.1.3.0.1.20,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.100 FOIA Public Liaison and the Office of Government Information Services.,SSA,,,,"We notify requesters of their right to seek dispute resolution from the FOIA Public Liaison or the Office of Government Information Services (OGIS) within our fee notices, responses to determinations identified in § 402.50(a), and responses to appeals.

(a)  FOIA Public Liaison.  If requesters have questions about the response to their request or wish to seek dispute resolutions services within SSA, the requester may contact the FOIA Public Liaison via email to  FOIA.Public.Liaison@ssa.gov.

(b)  OGIS.  OGIS is an entity outside of SSA that offers mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. OGIS' contact information will be provided in any decision letter issued by the FOIA Officer and Executive Director for OPD."
20:20:2.0.1.1.3.0.1.21,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.105 Appeals of the FOIA Officer's determination.,SSA,,,,"(a)  Appeal requirements.  If a requester disagrees with the FOIA Officer's determination in response to items specified in § 402.50(a), the requester may appeal the decision. The appeal must meet the following requirements:

(1) Be submitted in writing via the avenues identified in § 402.35(a);

(2) Be received, or in the case of electronic submissions, transmitted within 90 calendar days from the date of the determination the requester is appealing; and

(3) Explain what the requester is appealing and include additional information to support the appeal. The appeal should clearly identify the agency determination that is being appealed and the assigned request's tracking number. To facilitate handling when submitted via mail or fax, the requester should mark the appeal letter, or subject line of the electronic transmission, “Freedom of Information Act Appeal.”

(b)  Acknowledgement.  If we receive an appeal that will take longer than 10 working days to process, we will provide an acknowledgment. The acknowledgement is provided via email or, when the requester does not provide an email address, via U.S. postal mail. The acknowledgement email or letter restates the FOIA appeal and provides the requester with the appeal's tracking number.

(c)  Processing timeframe.  FOIA appeals are categorized as either simple or complex, based on the designation of the initial request.

(1)  Simple.  Generally, we make a determination about release of the requested record(s) within 20-working days.

(2)  Complex.  Appeals of complex requests cannot be completed within 20-working days. During OPD's processing of the appeal, OPD will need to consult with appropriate SSA component(s), including legal counsel; therefore, we generally require more than 20-working days to issue a final decision on the appeal.

(d)  Final decision.  The Chief FOIA Officer delegated to the Executive Director for OPD the authority to make decisions on appeals of the FOIA Officer's determinations.

(1) The final decision is provided in writing to the requester via email or, in the absence of the requester's email address, via U.S. postal mail.

(2) The final decision letter will explain the basis of the decision (for example, the reasons why an exemption applies).

(e)  Disagreement with final decision.  If a requester disagrees with the final decision issued by the Executive Director for OPD, they may seek assistance from OGIS, as described in § 402.100. Requesters may also ask a U.S. District Court to review our final decision. See 5 U.S.C. 552(a)(4)(B)."
20:20:2.0.1.1.3.0.1.22,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.110 U.S. District Court action.,SSA,,,,"If the Executive Director for OPD or the Executive Director for OPD's designee, upon review, affirms the denial of the FOIA Officer's determination of items specified in § 402.50(a), requesters may ask a U.S. District Court to review that denial. See 5 U.S.C. 552(a)(4)(B)."
20:20:2.0.1.1.3.0.1.23,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.115 The FOIA Exemption 1: National defense and foreign policy.,SSA,,,,Exemption 1 protects from disclosure information specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and are in fact properly classified pursuant to such Executive order.
20:20:2.0.1.1.3.0.1.24,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.120 The FOIA Exemption 2: Internal personnel rules and practices.,SSA,,,,"Exemption 2 authorizes our agency to withhold records that are related solely to the internal personnel rules and practices of an agency. For example, we may withhold personnel rules and practices dealing with employee relations or human resources."
20:20:2.0.1.1.3.0.1.25,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.125 The FOIA Exemption 3: Records exempted by other statutes.,SSA,,,,"(a)  Required record release.  Exemption 3 authorizes our agency to withhold records if another statute specifically allows or requires us to withhold them. We may use another statute to justify withholding only if it prohibits disclosure or if it sets forth criteria to guide our decision on releasing or identifies particular types of material to be withheld.

(b)  Examples.  (1) We often use this exemption to withhold information regarding a worker's earnings which is tax return information under section 6103 of the Internal Revenue Code.

(2) We also use this exemption to withhold death information about decedents:

(i) When the date of death is within three calendar years from the current date, the requested information about the decedent is protected under section 203 of the Bipartisan Budget Act of 2013 (Pub. L. 113-67).

(ii) When the agency's source of death is the state, the requested information is protected under section 205(r) of the Social Security Act."
20:20:2.0.1.1.3.0.1.26,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.130 The FOIA Exemption 4: Trade secrets and confidential commercial or financial information.,SSA,,,,"Submitters may designate information as trade secrets and confidential commercial or financial information at the time of submission or within a reasonable time thereafter. Submitters must use good faith efforts to designate, by appropriate markings, any portion of its submission that it considers to be protected from disclosure under the FOIA exemptions. These designations expire ten years after the due date of the submission unless the submitter requests a longer designation period.

(a)  Steps of submitters notice —(1)  The submitter's notice.  When trade secrets or confidential commercial or financial information is requested under the FOIA, SSA will provide written submitter's notice if we have a reason to believe that information in the records could reasonably be disclosed under the FOIA. The submitter's notice will describe and include a copy of the trade secret or commercial or financial information requested or portions of records containing the information. In cases involving many submitters, SSA may post or publish a submitter's notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure instead of sending individual notifications. The submitter's notice requirements of this section do not apply if:

(i) SSA determines the information is fully exempt under the FOIA, and therefore will not be disclosed;

(ii) The information has been previously published or made generally available; or

(iii) Disclosure of the information is required by statute other than the FOIA.

(2)  Submitter's opportunity to object to disclosure.  (i) Unless SSA grants an extension, the submitter must respond to the notice within five working days of SSA issuing the submitter's notice or the information may be released in accordance with these regulations and the FOIA. A submitter who fails to respond within five working days will be considered to have no objection to the disclosure of the information. SSA is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.

(ii) If a submitter objects to disclosure, the submitter should provide SSA with a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for non-disclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential.

(iii) SSA will consider a submitter's timely made objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.

(3)  Notice of intent to disclose.  Whenever SSA decides to disclose information over the objection of a submitter, SSA provides the following to the submitter:

(i) A Release Over Objection letter explaining the reasons why each of the submitter's disclosure objections did not meet the requirements for withholding under the FOIA.

(ii) A copy of the information as SSA intends to release it.

(iii) A statement of our intent to disclose the information five working days from the date on the Release Over Objection letter unless the submitter files an action in a U.S. District Court to prevent the release.

(b)  Notice of FOIA lawsuit.  When a submitter's notice is issued for a request that is the subject of a lawsuit, SSA notifies the submitter of the lawsuit within the notice.

(c)  Requester notification.  To the extent SSA expects substantial delays in the processing of FOIA requests due to the agency's communications with the submitter, we will notify the requester in writing via email, or when the requester's email is not provided, via U.S. postal mail."
20:20:2.0.1.1.3.0.1.27,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.135 The FOIA Exemption 5: Internal documents.,SSA,,,,"This exemption covers inter-agency or intra-agency government documents that fall within an evidentiary privilege recognized in civil discovery. Such internal government communications may include an agency's communications with an outside consultant or other outside person, with a court, or with Congress, when those communications are for a purpose similar to the purpose of privileged intra-agency communications. Some of the most-commonly applicable privileges are described in the following paragraphs:

(a)  Deliberative process privilege.  This privilege protects the decision-making processes of government agencies. Information is protected under this privilege if it is predecisional and deliberative. The purpose of the privilege is to prevent injury to the quality of the agency decision-making process by encouraging open and frank internal discussions, by avoiding premature disclosure of decisions not yet adopted, and by avoiding the public confusion that might result from disclosing reasons that were not in fact the ultimate grounds for an agency's decision. Purely factual material in a deliberative document is within this privilege only if it is inextricably intertwined with the deliberative portions so that it cannot reasonably be segregated, if it would reveal the nature of the deliberative portions, or if its disclosure would in some other way make possible an intrusion into the decision-making process. We will release purely factual material in a deliberative document unless that material is otherwise exempt. The privilege continues to protect predecisional documents even after a decision is made; however, we will release predecisional deliberative communications that were created 25 years or more before the date on which the records are requested.

(b)  Attorney work product privilege.  This privilege protects records prepared by or for an attorney in anticipation of or for litigation. It includes documents prepared for purposes of administrative and court proceedings. This privilege extends to information directly prepared by an attorney, as well as materials prepared by non-attorneys working for an attorney.

(c)  Attorney-client communication privilege.  This privilege protects confidential communications between an attorney and the attorney's client where legal advice is sought or provided."
20:20:2.0.1.1.3.0.1.28,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.140 The FOIA Exemption 6: Clearly unwarranted invasion of personal privacy.,SSA,,,,"We may withhold records about individuals if disclosure would constitute a clearly unwarranted invasion of their personal privacy.

(a)  Balancing test.  When we decide whether to release records that contain personal or private information about someone else, we weigh the foreseeable harm of invading a person's privacy against the public interest in disclosure. When we determine whether disclosure would be in the public interest, we will consider whether disclosure of the requested information would shed light on how a Government agency performs its statutory duties.

(b)  Agency employees.  To protect the safety of agency employees, we will not disclose information when the information sought is contact information and/or duty stations of one or more Federal employees if the disclosure would place employee(s) at risk of injury or other harm.

(c)  Examples.  We generally withhold the personally identifiable information of individuals if we do not have the consent (consistent with § 401.100 of this chapter) of the number holder, including but not limited to the number holder's home address, age, Social Security number, claims file, and other personal information. If the information requested concerns agency employees, we will determine disclosure on a case-by-case basis. For example, our redaction of management officials' information may be treated differently depending on how the balancing test applies in a given circumstance."
20:20:2.0.1.1.3.0.1.29,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.145 The FOIA Exemption 7: Law enforcement.,SSA,,,,"Exemption 7 authorizes our agency to withhold certain records that the government has compiled for law enforcement purposes. The records may apply to actual or potential violations of either criminal or civil laws or regulations. We can withhold these records only to the extent that releasing them would cause harm in at least one of the following situations:

(a)  Enforcement proceedings.  Pursuant to the FOIA Exemption 7(A) (5 U.S.C. 552(b)(7)(a)), we may withhold information whose release could reasonably be expected to interfere with prospective or ongoing law enforcement proceedings. Investigations of fraud and mismanagement, employee misconduct, and civil rights violations may fall into this category. In certain cases—such as when a fraud investigation is likely—we may refuse to confirm or deny the existence of records that relate to the violations in order not to disclose that an investigation is in progress, or may be conducted.

(b)  Fair trial or impartial adjudication.  Under the FOIA Exemption 7(B) (5 U.S.C. 552(b)(7)(b)), we may withhold records whose release would deprive a person of a fair trial or an impartial adjudication because of prejudicial publicity.

(c)  Personal privacy.  Under the FOIA Exemption 7(C) (5 U.S.C. 552(b)(7)(c)), we may withhold the personally identifiable information of individuals when the disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy. When a name surfaces in an investigation, that person is likely to be vulnerable to innuendo, rumor, harassment, and retaliation.

(d)  Confidential sources and information.  Pursuant to the FOIA Exemption 7(D) (5 U.S.C. 552(b)(7)(d)), we may withhold the identity of confidential sources, as well as the records obtained from the confidential sources in criminal investigations or by an agency conducting a lawful national security investigation. A confidential source may be an individual; a State, local, or foreign government agency; or any private organization. The exemption applies whether the source provides information under an express promise of confidentiality or under circumstances from which such an assurance could be reasonably inferred; however, inferred confidentiality is determined in a case-by-case analysis. Also protected from mandatory disclosure is any information which, if disclosed, could reasonably be expected to jeopardize the system of confidentiality that assures a flow of information from sources to investigatory agencies.

(e)  Techniques and procedures.  Under the FOIA Exemption 7(E) (5 U.S.C. 552(b)(7)(e)), we may withhold records that would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law. In some cases, it is not possible to describe even in general terms those techniques without disclosing the very material to be withheld.

(f)  Life and physical safety.  Under the FOIA Exemption 7(F) (5 U.S.C. 552(b)(7)(f)), we may withhold records whose disclosure could reasonably be expected to endanger the life or physical safety of any individual. This protection extends to threats and harassment, as well as to physical violence."
20:20:2.0.1.1.3.0.1.3,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.15 SSA's FOIA policy.,SSA,,,,"(a)  Presumption of openness.  SSA will withhold information only if we reasonably foresee that disclosure would harm an interest protected by a FOIA exemption or if disclosure is prohibited by law.

(b)  Authority to release and withhold records.  As described in § 402.50, the agency's FOIA Officer, or the FOIA Officer's designee, has the authority to:

(1) Release or withhold records in response to initial requests;

(2) Grant or deny expedited processing; and

(3) Reduce or waive fees.

(c)  Records publicly available.  We make available for public inspection in an electronic format records that are final and have been requested and released three or more times and other specified records described in § 402.155. We do not make available for public inspection records that are not static, such as the Open Access Death Master File.

(d)  Required record production.  The FOIA does not require an agency to give opinions, conduct research, answer questions, or create records."
20:20:2.0.1.1.3.0.1.30,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.150 The FOIA Exemptions 8 and 9: Records on financial institutions; records on wells.,SSA,,,,"Exemption 8 permits us to withhold records about regulation or supervision of financial institutions. Exemption 9 permits the withholding of geological and geophysical information and data, including maps, concerning wells."
20:20:2.0.1.1.3.0.1.31,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.155 Records available for public inspection.,SSA,,,,"(a) Under the FOIA, SSA is required to make available for public inspection in an electronic format:

(1) Final opinions made in the adjudication of cases;

(2) An agency's statements and interpretations of policy that have been adopted but are not published in the  Federal Register ;

(3) Administrative staff manuals and instructions that affect the public; and

(4) Copies of records, regardless of form or format, that an agency determines will likely become the subject of subsequent requests, as well as records that have been requested and released three or more times, unless said materials are published and copies are offered to sale.

(b) SSA will not use or cite instructional manuals issued to our employees, general statements of policy, and other materials which are used in processing claims as a precedent for an action against a person unless we have indexed the record and published it or made it available, or unless the person has timely notice of the record.

(c) Records that SSA makes available for public inspection in an electronic format may be accessed through  www.ssa.gov  free of charge. Such records include:

(1) Compilation of Social Security Laws and Regulations;

(2) SSA regulations under the retirement, survivors, disability, and supplemental security income programs,  i.e.,  20 CFR parts 401, 402, 404, 416, and 422;

(3) Social Security Handbook;

(4) Social Security Rulings and Acquiescence Rulings;

(5) SSA's Public Programs Operations Manual System;

(6) SSA's Organizational Structure;

(7) State and Local Coverage Handbook for State Social Security Administrators; and

(8) SSA's Public Hearings, Appeals, and Litigation Law Manual."
20:20:2.0.1.1.3.0.1.32,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.160 Where records are published.,SSA,,,,"(a)  Methods of publication.  Materials we are required to publish pursuant to the provisions of 5 U.S.C. 552(a)(1) and (a)(2), we publish in one of the following ways:

(1) By publication in the  Federal Register  of Social Security Administration regulations, and by their subsequent inclusion in the Code of Federal Regulations;

(2) By publication in the  Federal Register  of appropriate general notices;

(3) By other forms of publication, when incorporated by reference in the Code of Federal Regulations with the approval of the Director of the Federal Register;

(4) By publication in the “Social Security Rulings” of indexes of precedential social security orders and opinions issued in the adjudication of claims, statements of policy and interpretations that have been adopted but have not been published in the  Federal Register ;  and

(5) By posting in the FOIA library.

(b)  Publication of rulings.  Although not required pursuant to 5 U.S.C. 552(a)(1) and (a)(2), we publish the following rulings in the  Federal Register  and by other forms of publication:

(1) We publish Social Security Rulings in the  Federal Register  under the authority of the Commissioner of Social Security. They are binding on all components of SSA. These rulings represent precedent final opinions and orders and statements of policy and interpretations that we have adopted.

(2) We publish Social Security Acquiescence Rulings in the  Federal Register  under the authority of the Commissioner of Social Security. They are binding on all components of SSA, except with respect to claims subject to the relitigation procedures established in 20 CFR 404.985(c) and 416.1485(c). For a description of Social Security Acquiescence Rulings, see 20 CFR 404.985(b) and 416.1485(b)."
20:20:2.0.1.1.3.0.1.33,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.165 Publications for sale through the Government Publishing Office.,SSA,,,,"The public may purchase publications containing information pertaining to the program, organization, functions, and procedures of SSA from the electronic U.S. Government Bookstore maintained by the Government Publishing Office. The publications for sale include but are not limited to:

(a) Title 20, parts 400 through 499, of the Code of Federal Regulations;

(b)  Federal Register  issues; and

(c) Compilation of the Social Security Laws."
20:20:2.0.1.1.3.0.1.4,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.20 Relationship between the FOIA and the Privacy Act of 1974.,SSA,,,,"(a)  Coverage.  The FOIA and the rules in this part apply to all SSA records. The Privacy Act, 5 U.S.C. 552a, applies to records that are about individuals, but only if the records are in a system of records.

(b)  Requesting your own records.  If you have filed a FOIA request and are an individual requesting your own records that are maintained in a system of records, or if you are a parent or legal guardian authorized to act under § 401.75 of this chapter who is seeking the records about a minor or individual who has been declared incompetent, your request may be handled under the Privacy Act. See § 401.40 of this chapter. If we handle your request under the Privacy Act, we will provide you with written notification with further processing instructions. Privacy Act requests are also processed under the FOIA, when appropriate, to give you the benefit of both statutes. You must verify your identity in accordance with our regulations. See § 401.45 of this chapter."
20:20:2.0.1.1.3.0.1.5,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.25 Who can file a FOIA request?,SSA,,,,"Any person may submit a FOIA request to SSA. Under the FOIA, “any person” includes requests from individuals, corporations, State and local agencies, as well as foreign entities. Requests from Federal agencies and Federal or State courts are not covered by the FOIA."
20:20:2.0.1.1.3.0.1.6,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.30 Requirements of a FOIA request.,SSA,,,,"(a) To be considered a FOIA request under this part, the following must occur:

(1) The request must be written (either by hand or electronically);

(2) The request must be submitted in accordance with § 402.35;

(3) The requester must provide the following required contact information: Requester's name, U.S. or foreign postal address, description of records sought, and fee willing to pay. While not required, we encourage requesters to provide us with their email address and phone number; and

(4) The request must clearly state and reasonably describe what SSA records are being requested in sufficient detail to enable OPD to locate them with a reasonable amount of effort. Broad, sweeping requests and vague requests are not reasonably described. When known, requests should identify the records sought by providing the name/title of the record, applicable date range, subject matter, offices or employees involved, and record type. If the request is for electronic communications, such as email records, the request may identify the names, position titles, or other identifying information about the agency employees involved, as well as the applicable timeframe. Absent sufficient details, the agency may be unable to search for or locate the records sought. The greater the date range, the longer it may take to process the request and the greater amount of fees that may be charged.

(b) Requests that do not meet the required criteria in paragraph (a) of this section are not considered proper FOIA requests."
20:20:2.0.1.1.3.0.1.7,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.35 Where to submit a FOIA request.,SSA,,,,"(a)  Submission of requests.  Except as specified in paragraph (b) of this section, requesters must submit FOIA requests in writing to OPD through the following options:

(1)  Online FOIA portal:  Link available from the agency's  www.ssa.gov/foia  website or the National FOIA Portal at  www.FOIA.gov.

(2)  Email: FOIA.Public.Liaison@ssa.gov.

(3)  Mail:  SSA Office of Privacy and Disclosure, ATTN: Freedom of Information Officer, 6401 Security Boulevard, Baltimore, MD 21235.

(b)  Requests for copies of Deceased Individual's Application for a Social Security Card (SS-5) or Numident record.  Requesters may use the Form SSA-711,  Request for a Deceased Individual's Social Security Record,  to request a copy of a deceased individual's original SS-5 or Numident record. When the Form SSA-711 is used, it may be submitted to the office listed on the form or as directed in paragraph (a) of this section."
20:20:2.0.1.1.3.0.1.8,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.40 Requests for deceased individual's records.,SSA,,,,"(a) The agency will disclose the records concerning a deceased individual when we have acceptable proof of death unless Federal law or regulations prohibits the disclosure.

(b) Proof of death includes:

(1) A copy of a public record of death of the number holder;

(2) A statement of death by the funeral home director;

(3) A statement of death by the attending physician or the superintendent, physician, or intern of the institution where the person died;

(4) A copy of the coroner's report of death or the verdict of the coroner's jury;

(5) An obituary that we determine has sufficient identifying information; or

(6) Other certified record of death that we determine within our discretion is acceptable.

(c) If upon review of the provided proof of death, we cannot determine that the individual is deceased or we have questions about the authenticity of the proof, then the proof is not acceptable. When we do not have acceptable proof of death, we will treat the request in accordance with § 402.20(b), requests for information about a living person."
20:20:2.0.1.1.3.0.1.9,20,Employees' Benefits,III,,402,PART 402—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC,,,,§ 402.45 Requests handled outside of the FOIA process.,SSA,,,,"When records outlined in paragraphs (a) through (d) of this section are requested from OPD, OPD will respond to the requester and provide information for requesting the records sought:

(a) To the extent a request asks for records that are currently publicly available, either from SSA or from another part of the Federal Government. See § 402.155.

(b) If the records sought are distributed by SSA as part of its regular program activity, for example, public information leaflets distributed by SSA. See §§ 402.155 through 402.165.

(c) If the records sought are earnings records covered by § 422.125 of this chapter.

(d) If a request does not meet the requirements of a FOIA request as defined in § 402.30. We will send written correspondence to the requester:

(1) Providing instructions for how to submit a proper FOIA request; or

(2) Asking for additional information to make the request a proper FOIA request."
24:24:2.1.3.5.3.0.221.1,24,Housing and Urban Development,IV,,402,PART 402—SECTION 8 PROJECT-BASED CONTRACT RENEWAL UNDER SECTION 524 OF MAHRA,,,,§ 402.1 What is the purpose of part 402?,HUD,,,"[71 FR 2121, Jan. 12, 2006]",This part sets out the terms and conditions under which HUD will renew project-based assistance contracts under the authority provided in section 524 of MAHRA.
24:24:2.1.3.5.3.0.221.2,24,Housing and Urban Development,IV,,402,PART 402—SECTION 8 PROJECT-BASED CONTRACT RENEWAL UNDER SECTION 524 OF MAHRA,,,,§ 402.2 Definitions.,HUD,,,"[71 FR 2121, Jan. 12, 2006]","(a)  Terms defined in part 401.  In this part, the following terms have the meanings given in § 401.2 of this chapter: affiliate, disabled family, elderly family, eligible project, HUD, MAHRA, owner, PAE, Restructuring Plan, and section 8.

(b)  Terms defined in MAHRA.  In this part, the following terms have the meanings given in section 512 of MAHRA: expiration date, fair market rent, renewal, and tenant-based assistance.

(c)  Other defined terms.  In this part, the term—

Comparable market rents  means rents determined in accordance with section 524(a)(5) of MAHRA and HUD's instructions.

Large family  means a family of five or more persons.

OCAF  means an operating cost adjustment factor established by HUD, which may not be negative, that is applied to the existing contract rent (less the portion of that rent paid for debt service).

Portfolio Reengineering demonstration authority  means the authority specified in section 524(e)(2)(B) of MAHRA.

Project-based assistance  means the types of assistance listed in section 512(2)(B) of MAHRA, or a project-based assistance contract under the Section 8 program renewed under section 524 of MAHRA.

Project eligible for exception rents  means a project described in section 524(b) of MAHRA.

SRO contract  and  SRO project  mean, respectively, a project-based assistance contract for single-room occupancy dwellings under section 441 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11401), and a project with units covered by such a contract."
24:24:2.1.3.5.3.0.221.3,24,Housing and Urban Development,IV,,402,PART 402—SECTION 8 PROJECT-BASED CONTRACT RENEWAL UNDER SECTION 524 OF MAHRA,,,,§ 402.3 Contract provisions.,HUD,,,"[71 FR 2121, Jan. 12, 2006]","The renewal HAP contract shall be construed and administered in accordance with all statutory requirements, and with all HUD regulations and other requirements, including changes in HUD regulations and other requirements during the term of the renewal HAP contract, unless the contract provides otherwise."
24:24:2.1.3.5.3.0.221.4,24,Housing and Urban Development,IV,,402,PART 402—SECTION 8 PROJECT-BASED CONTRACT RENEWAL UNDER SECTION 524 OF MAHRA,,,,§ 402.4 Contract renewals under section 524(a)(1) of MAHRA.,HUD,,,"[65 FR 15498, Mar. 22, 2000, as amended at 71 FR 2121, Jan. 12, 2006]","(a)  Initial renewal.  (1) HUD may renew any expiring section 8 project-based assistance contract at initial rents that do not exceed comparable market rents.

(2)  Procedure for projects eligible for Restructuring Plan.  (i) If an owner requests renewal of a contract under this section for a project that is eligible for a Restructuring Plan under the Mark-to-Market program under part 401 and that has not been rejected under that part, HUD or a PAE will determine whether renewal under this section, instead of through a Restructuring Plan under part 401 of this chapter, would be sufficient. Renewal without a Restructuring Plan will be considered sufficient if the rents after renewal would be sufficient to maintain both adequate debt service coverage on the HUD-insured or HUD-held mortgage and necessary replacement reserves to ensure the long-term physical integrity of the project, taking into account any comments received under § 401.502(c) of this chapter.

(ii) If HUD or the PAE determines that renewal under this section would be sufficient, HUD will not require a Restructuring Plan.

(iii) If HUD or the PAE determines that renewal under this section would not be sufficient, HUD or the PAE may require a Restructuring Plan before the owner's request for contract renewal will be given further consideration. If the owner does not cooperate in the development of an acceptable Restructuring Plan, HUD will pursue whatever administrative actions it considers necessary.

(b) [Reserved]"
24:24:2.1.3.5.3.0.221.5,24,Housing and Urban Development,IV,,402,PART 402—SECTION 8 PROJECT-BASED CONTRACT RENEWAL UNDER SECTION 524 OF MAHRA,,,,§ 402.5 Contract renewals under section 524(b) or (e) of MAHRA.,HUD,,,"[71 FR 2122, Jan. 12, 2006]","(a)  Renewal of projects eligible for exception rents at owner's request.  HUD will offer to renew project-based assistance for a project eligible for exception rents under section 524(b) of MAHRA at rent levels determined under this section instead of § 402.4, except as provided in § 402.7, but the owner of a project other than a project with assistance under the Section 8 moderate rehabilitation program may request renewal under § 402.4.

(b)  Rent levels for projects eligible for exception rents.  HUD will renew the contract with rent levels at the least of:

(1) Existing rents adjusted by an OCAF;

(2) A budget-based rent determined in accordance with instructions issued by HUD, subject to a determination by HUD that such a rent level is appropriate; or

(3) In the case of a contract under the Section 8 moderate rehabilitation program (other than an SRO contract), the lesser of existing rents adjusted by an OCAF, fair market rents (less any amounts for tenant-purchased utilities), or comparable market rents, as provided in section 524(b)(3) of MAHRA.

(c)  Rent adjustments.  (1) After rents have been established under this section, rent adjustments will comply with section 524(c) of MAHRA except as otherwise required by paragraph (d)(1) of this section for preservation projects.

(2) Rent adjustments for projects assisted under the Section 8 moderate rehabilitation program, other than projects assisted under the moderate rehabilitation single-room occupancy program, shall be determined in accordance with section 524(b)(3) of MAHRA.

(d)  Preservation projects and demonstration projects.  (1) Notwithstanding any other provision of this part except § 402.7, upon expiration of a section 8 contract for a project subject to an approved plan of action under the Emergency Low-Income Housing Preservation Act of 1987 (ELIHPA) or the Low-Income Housing Preservation and Resident Homeownership Act of 1990 (LIHPRHA), the Secretary will provide benefits that are comparable to those provided under such plan of action. This paragraph (d)(1) applies only to the extent amounts are specifically made available in appropriations acts.

(2) Notwithstanding any other provision of this part except § 402.7, upon expiration of a Section 8 contract entered into pursuant to a Portfolio Reengineering demonstration authority for which HUD made a determination that debt restructuring is inappropriate, and the owner of the project executed a Portfolio Reengineering Demonstration Program Use Agreement, the Secretary will provide the owner, at the request of the owner, with benefits comparable to those provided under the contract that is expiring. This paragraph (d)(2) applies only to the extent amounts are made available in appropriations acts."
24:24:2.1.3.5.3.0.221.6,24,Housing and Urban Development,IV,,402,PART 402—SECTION 8 PROJECT-BASED CONTRACT RENEWAL UNDER SECTION 524 OF MAHRA,,,,§ 402.6 What actions must an owner take to request section 8 contract renewal under this part?,HUD,,,"[71 FR 2122, Jan. 12, 2006]","(a)  In general.  An owner requesting contract renewal under this part must submit to HUD or HUD's designee, at least 120 days before the termination or expiration date of any project-based assistance contract, all documents or information prescribed by HUD.

(b)  Subsequent renewals.  A contract that was initially renewed under MAHRA will be renewed at the owner's request under any renewal option for which the project is eligible. However, in the case of a project that is eligible for a Restructuring Plan under § 401.100, HUD or a PAE will determine whether renewal with a Restructuring Plan under part 401, or without a Restructuring Plan under this part, is necessary."
24:24:2.1.3.5.3.0.221.7,24,Housing and Urban Development,IV,,402,PART 402—SECTION 8 PROJECT-BASED CONTRACT RENEWAL UNDER SECTION 524 OF MAHRA,,,,§ 402.7 Refusal to consider an owner's request for a Section 8 contract renewal because of actions or omissions of owner or affiliate.,HUD,,,"[71 FR 2122, Jan. 12, 2006, as amended at 72 FR 73496, Dec. 27, 2007]","(a)  Determination of eligibility.  Notwithstanding 2 CFR part 2424, HUD may elect to not consider a request for renewal of project-based assistance, if at any time before contract renewal:

(1) The owner or an affiliate is debarred or suspended under part 2 CFR part 2424;

(2) HUD determines that the owner or an affiliate has engaged in material adverse financial or managerial actions or omissions as described in section 516 of MAHRA, including any outstanding violations of civil rights laws, or has failed to certify to compliance with the nondiscrimination requirements of 24 CFR 5.105(a), in connection with any project of the owner or an affiliate; or

(3) The project does not meet the physical condition standards in 24 CFR 5.703 of this title, unless HUD determines that the project will meet the standards within a reasonable time after renewal.

(b)  Dispute and appeal.  An owner may dispute a rejection under this section and seek administrative review under the procedures in subpart F of part 401 of this chapter."
24:24:2.1.3.5.3.0.221.8,24,Housing and Urban Development,IV,,402,PART 402—SECTION 8 PROJECT-BASED CONTRACT RENEWAL UNDER SECTION 524 OF MAHRA,,,,§ 402.8 Tenant protections if a contract is not renewed.,HUD,,,"[71 FR 2122, Jan. 12, 2006]","(a)  Notice of termination.  An owner who is not eligible for a Restructuring Plan under part 401 of this chapter, or who is eligible but does not request restructuring, and who does not renew a contract, must provide one year's notice to tenants, to HUD, and to the contract administrator as provided in section 8(c)(8)(A) of the United States Housing Act of 1937.

(b)  If an owner does not give timely notice.  If an owner does not give one year's notice of termination as described in paragraph (a) of this section, the owner must permit the tenants in assisted units to remain in their units at a rental rate no higher than the tenant rent payable for the tenants' last month of assisted occupancy under the terminated HAP contract until one year after notice is given, even if HUD does not continue to make housing assistance payments with respect to such units.

(c)  If an owner opts out or fails to renew.  In the case where a contract for Section 8 rental assistance for a project is terminated or expires, an assisted family may elect to remain in the project and, if eligible, receive tenant-based Section 8 assistance under Section 8(t) of the United States Housing Act of 1937."
24:24:2.1.3.5.3.0.221.9,24,Housing and Urban Development,IV,,402,PART 402—SECTION 8 PROJECT-BASED CONTRACT RENEWAL UNDER SECTION 524 OF MAHRA,,,,§ 402.9 Waivers and delegations of waiver authority.,HUD,,,"[71 FR 2123, Jan. 12, 2006]","All waivers of provisions of this part, and delegations of the authority to waive provisions of this part, are governed by § 5.110 of this title."
29:29:2.1.4.1.3.0.1.1,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.1 Labor organization constitution and bylaws.,OFCCP,,,"[28 FR 14381, Dec. 27, 1963, as amended at 40 FR 58856, Dec. 19, 1975]","Every labor organization shall adopt a constitution and bylaws consistent with the provisions of the Act applicable thereto, within 90 days after the date the labor organization first becomes subject to the Act. This shall not, however, require the formal readoption by a labor organization of such a constitution and bylaws which it has previously adopted and under which it is operating when the report prescribed by § 402.2 is filed. As used in this part  constitution and bylaws  means the basic written rules governing the organization."
29:29:2.1.4.1.3.0.1.10,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.10 Dissemination and verification of reports.,OFCCP,,,"[28 FR 14381, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985]","Every labor organization required to submit a report under section 201(a) of the Act and under this part shall make available to all its members the information required to be contained in such report, including the copy of the constitution and bylaws required to be filed therewith, and every such labor organization and its officers shall be under a duty to permit such member for just cause to examine any books, records, and accounts necessary to verify such report and constitution and bylaws."
29:29:2.1.4.1.3.0.1.11,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.11 Attorney-client communications exempted.,OFCCP,,,,"Nothing contained in this part shall be construed to require an attorney who is a member in good standing of the bar of any State, to include in any report required to be filed pursuant to the provisions of section 201(a) of the Act, and of this part, any information which was lawfully communicated to such attorney by any of his clients in the course of a legitimate attorney-client relationship."
29:29:2.1.4.1.3.0.1.12,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.12 Publication of reports required by this part.,OFCCP,,,"[35 FR 2990, Feb. 13, 1970]","Inspection and examination of any report or other document filed as required by this part, and the furnishing by the Office of Labor-Management Standards of copies thereof to any person requesting them, shall be governed by part 70 of this title."
29:29:2.1.4.1.3.0.1.13,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.13 OMB control number.,OFCCP,,,"[59 FR 15115, Mar. 31, 1994, as amended at 63 FR 33779, June 19, 1998; 78 FR 8024, Feb. 5, 2013]",The collecting of information requirements in this part have been approved by the Office of Management and Budget and assigned OMB control number 1245-0003.
29:29:2.1.4.1.3.0.1.2,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.2 Labor organization initial information report.,OFCCP,,,"[28 FR 14381, Dec. 27, 1963, as amended at 50 FR 31309, Aug. 1, 1985; 78 FR 8024, Feb. 5, 2013]","Every labor organization shall file a report signed by its president and secretary or corresponding principal officers containing the information required to be filed by section 201(a) of the Act, and found necessary to be reported under section 208 thereof by the Secretary, on United States Department of Labor Form LM-1 
 1 
   entitled, “Labor Organization Information Report”. There shall be attached to such report and made a part thereof a copy of the constitution and bylaws adopted by the reporting labor organization.

1  Filed as part of the original document."
29:29:2.1.4.1.3.0.1.3,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.3 Filing of initial reports.,OFCCP,,,"[28 FR 14381, Dec. 27, 1963, as amended at 35 FR 2990, Feb. 13, 1970; 40 FR 58856, Dec. 19, 1975; 50 FR 31309, Aug. 1, 1985]","(a) Every labor organization shall file with the Office of Labor-Management Standards the report and (subject to the provisions of paragraph (b) of this section, where applicable) a copy of its constitution and bylaws required by section 201(a) of the Act and § 402.2, together with one additional copy of each, within 90 days after the date on which it first becomes subject to the Act.

(b) A labor organization subject to paragraph (a) of this section may adopt or may have adopted as its constitution and bylaws (whether by formal action or by virtue of affiliation with a parent organization) a constitution and bylaws of a national or international labor organization which the national or international organization is required to file under section 201(a) of the Act and this part. In such a case, a filing by the national or international labor organization of copies of such constitution and bylaws will be accepted as a filing of such documents by each such adopting labor organization within the meaning of section 201(a) of the Act and this part, if the following conditions are met:

(1) The national or international labor organizations shows in its report filed under paragraph (a) of this section that copies of its constitution and bylaws are being filed on behalf of such adopting organizations as well as on its own behalf, and files such number of additional copies as the Office of Labor-Management Standards may request, and

(2) The adopting labor organization shows in its report filed under paragraph (a) of this section that the national or international constitution and bylaws are also its constitution and bylaws and that copies are filed on its behalf by the national or international labor organization.

If the constitution and bylaws of the adopting labor organization include other documents, this shall be shown in such report and copies shall be filed as provided in paragraph (a) of this section."
29:29:2.1.4.1.3.0.1.4,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.4 Subsequent reports.,OFCCP,,,"[58 FR 67604, Dec. 21, 1993]","(a) Except as noted elsewhere in this paragraph, every labor organization which revises the most recent constitution and bylaws it has filed with the Office of Labor-Management Standards shall file two dated copies of its revised constitution and bylaws at the time it files its annual financial report as provided in part 403 of this chapter. However, a labor organization which has as its constitution and bylaws a uniform constitution and bylaws prescribed by the reporting labor organization's parent national or international labor organization in accordance with § 402.3(b) is not required to file copies of a revised uniform constitution and bylaws if the parent national or international labor organization files as many copies of the revised constitution and bylaws with the Office of Labor-Management Standards as the Office may request.

(b) Every labor organization which changes the practices and procedures for which separate statements must be filed pursuant to subsection 201(a)(5) (A) through (M) of the Act shall file with the Office of Labor-Management Standards two copies of an amended Form LM-1, signed by its president and secretary or corresponding principal officers. The amended Form LM-1 shall be filed when the labor organization files its annual financial report as provided in part 403 of this chapter."
29:29:2.1.4.1.3.0.1.5,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.5 Terminal reports.,OFCCP,,,"[28 FR 14381, Dec. 27, 1963, as amended at 62 FR 6092, Feb. 10, 1997]","(a) Any labor organization required to file reports under the provisions of this part, which ceases to exist by virtue of dissolution or any other form of termination of its existence as a labor organization, or which loses its identity as a reporting labor organization through merger, consolidation or otherwise, shall file a report containing a detailed statement of the circumstances and effective date of such termination or loss of reporting identity, and if the latter, such report shall also state the name and mailing address of the labor organization into which it has been consolidated, merged, or otherwise absorbed. Such report shall be submitted on Form LM-2 in connection with the terminal financial report required by § 403.5 of this chapter and shall be signed by the president and treasurer, or corresponding principal officers, of the labor organization at the time of its termination or loss of reporting identity and, together with a copy thereof, shall be filed with the Office of Labor-Management Standards within 30 days of the effective date of such termination or loss of reporting identity, as the case may be.

(b) Labor organizations which qualify to use Form LM-3, the Labor Organization Annual Report, pursuant to §§ 403.4 and 403.5 of this chapter may file the terminal report called for in this section on Form LM-3. This report must be signed by the president and treasurer, or corresponding principal officers, of the labor organization.

(c) Labor organizations which qualify to use Form LM-4, the Labor Organization Annual Report, pursuant to §§ 403.4 and 403.5 of this chapter may file the terminal report called for in this section on Form LM-4. The report must be signed by the president and treasurer, or corresponding principal officers, of the labor organization."
29:29:2.1.4.1.3.0.1.6,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.6 Receipt of reports and documents.,OFCCP,,,,"Upon receipt of all reports and documents submitted for filing under the provisions of this part, the Office of Labor-Management Standards shall assign to the initial information report filed by each labor organization, an identifying number. This number thereafter shall be entered by the reporting labor organization on all subsequent or terminal reports and all other documents which it thereafter submits for filing under this part, as well as on all communications directed to the Office concerning such reports and documents."
29:29:2.1.4.1.3.0.1.7,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.7 Effect of acknowledgment and filing by the Office of Labor-Management Standards.,OFCCP,,,,"Acknowledgment by the Office of Labor-Management Standards of the receipt of reports and documents submitted for filing under this part, is intended solely to inform the sender of the receipt thereof by the Office, and neither such acknowledgment nor the filing of such reports and documents by the Office constitutes express or implied approval thereof, or in any manner indicates that the content of any such report or document fulfills the reporting or other requirements of the Act, or of the regulations in this chapter, applicable thereto."
29:29:2.1.4.1.3.0.1.8,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.8 Personal responsibility of signatories of reports.,OFCCP,,,,Each individual required to sign any report under section 201(a) of the Act and under this part shall be personally responsible for the filing of such report and for any statement contained therein which he knows to be false.
29:29:2.1.4.1.3.0.1.9,29,Labor,IV,A,402,PART 402—LABOR ORGANIZATION INFORMATION REPORTS,,,,§ 402.9 Maintenance and retention of records.,OFCCP,,,,"Every person required to file any report under this part shall maintain records on the matters required to be reported which will provide in sufficient detail the necessary basic information and data from which the documents filed with the Office of Labor-Management Standards may be verified, explained or clarified, and checked for accuracy and completeness, and shall include vouchers, worksheets, receipts, and applicable resolutions, and shall keep such records available for examination for a period of not less than five years after the filing of the documents based on the information which they contain."
33:33:3.0.2.1.3.0.21.1,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.1 Purpose.,USACE,,,,"This regulation prescribes the charges to be assessed for the full or partial transit of the St. Lawrence Seaway between Montreal, Quebec, and Lake Erie."
33:33:3.0.2.1.3.0.21.10,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.10 Post-clearance date operational surcharges.,USACE,,,"[66 FR 15329, Mar. 16, 2001. Redesignated and amended at 74 FR 10680, Mar. 12, 2009, and further redesignated at 79 FR 13253, Mar. 10, 2014, and further redesignated and amended at 81 FR 14391, Mar. 17, 2016; 84 FR 8985, Mar. 13, 2019]","(a) Subject to paragraph (b) of this section, a vessel that reports for its final transit of the Seaway from a place set out in column 1 within a period after the clearance date established by the Manager and the Corporation set out in column 2 shall pay operational surcharges in the amount set out in column 3, prorated on a per-lock basis.

(b) If surcharges are postponed for operational or climatic reasons, a vessel that reports for its final transit of the Seaway from a place set out in column 1 within a period after the clearance date established by the Manager and the Corporation set out in column 2 shall pay operational surcharges in the amount set out in column 3, prorated on a per-lock basis.

(c) A vessel that is authorized to transit the Seaway after the period of 96 hours after the clearance date established by the Manager and the Corporation shall pay, in addition to the operational surcharge, an amount equal to the incremental expenses incurred by the Manager to keep the Seaway open for the transit of the vessel."
33:33:3.0.2.1.3.0.21.11,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.11 Coming into force.,USACE,,,"[66 FR 15329, Mar. 16, 2001. Redesignated at 74 FR 10679, Mar. 12, 2009, and further redesignated at 79 FR 13253, Mar. 10, 2014, and at 81 FR 14391, Mar. 17, 2016]","In Canada, this Tariff and the tolls set forth herein come into force from the date on which this Tariff is filed with the Canadian Transportation Agency."
33:33:3.0.2.1.3.0.21.12,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.12 Schedule of tolls.,USACE,,,"[90 FR 566, Jan. 6, 2025]","Table 1 to § 402.12

1  Or under the US GRT for vessels prescribed prior to 2002.

2  The applicable charged under item 3 at the Great Lakes St. Lawrence Seaway Development Corporation's locks (Eisenhower, Snell) will be collected in U.S. dollars. The collection of the U.S. portion of tolls for commercial vessels is waived by law (33 U.S.C. 988a(a)). The other charges are in Canadian dollars and are for the Canadian share of tolls.

3  Includes a $5.00 discount per lock with use of online reservation and payment system for Canadian locks.

4  The applicable charge at the Great Lakes St. Lawrence Seaway Development Corporation's locks (Eisenhower, Snell) for pleasure craft is $30 USD or $30 CAD per lock."
33:33:3.0.2.1.3.0.21.13,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.13 Operational surcharges—no postponements.,USACE,,,"[66 FR 15329, Mar. 16, 2001. Redesignated at 74 FR 10679, Mar. 12, 2009, and further redesignated at 79 FR 13253, Mar. 10, 2014, and at 81 FR 14391, Mar. 17, 2016]",1  Prorated on a per-lock basis.
33:33:3.0.2.1.3.0.21.14,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.14 Operational surcharges—after postponements.,USACE,,,"[66 FR 15329, Mar. 16, 2001. Redesignated and amended at 74 FR 10679, Mar. 12, 2009, and further redesignated at 79 FR 13253, Mar. 10, 2014, and at 81 FR 14391, Mar. 17, 2016]",1  Prorated on a per-lock basis.
33:33:3.0.2.1.3.0.21.2,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.2 Title.,USACE,,,,This tariff may be cited as the St. Lawrence Seaway Tariff of Tolls (Schedule of Tolls in Canada).
33:33:3.0.2.1.3.0.21.3,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.3 Interpretation.,USACE,,,"[66 FR 15329, Mar. 16, 2001, as amended at 71 FR 14807, Mar. 24, 2006; 72 FR 4431, Jan. 31, 2007; 74 FR 10678, Mar. 12, 2009; 78 FR 19106, Mar. 29, 2013; 79 FR 13252, Mar. 10, 2014; 81 FR 14391, Mar. 17, 2016; 84 FR 8985, Mar. 13, 2019; 86 FR 15586, Mar. 24, 2021; 88 FR 15275, Mar. 13, 2023]","In this tariff,

Bulk cargo  means cargo consisting of goods, loose or in mass, that generally must be shoveled, pumped, blown, scooped or forked in the handling and includes:

(1) Cement, loose or in sacks;

(2) Coke and petroleum coke, loose or in sacks;

(3) Domestic cargo;

(4) Liquids carried in vessels' tanks;

(5) Ores and minerals (crude, screened, sized or concentrated, but not otherwise processed) loose or in sacks, including alumina, bauxite, gravel, phosphate rock, sand, stone and sulphur;

(6) Pig iron and scrap metals;

(7) Lumber, pulpwood, poles and logs, loose or bundled;

(8) Raw sugar, flour, loose or in sacks;

(9) Wood pulp, loose or in bales; and

(10) Material for recycling, scrap material, refuse and waste.

Cargo  means all goods aboard a vessel whether carried as revenue or non-revenue freight or carried for the vessel owner, but does not include:

(1) Empty containers or the tare weight of loaded containers;

(2) Vessels' fuel, ballast or stores;

(3) The personal effects of crew or passengers; or

(4) In transit cargo that is carried both upbound and downbound in the course of the same voyage.

Carrier  means any company, or its representative, engaged in physically moving a cargo between an origin and a destination.

Closing date  means in respect of a year, the first date in such year after the opening date on which both the Montreal-Lake Ontario portion and the Welland Canal portion of the Seaway are closed for vessel traffic.

Commodity  means cargo that has been defined as a commodity in the Manager's commodity codes.

Containerized cargo  means cargo shipping in a container. Containers are used to transport freight in multiple modes: vessel, rail, and truck. There are many configurations: Dry, insulated or thermal, refrigerated or reefer, flat racks and platforms, open top and tank. Typical dimensions: 8 feet in width, 8 feet 6 inches or 9 feet 6 inches in height and 20 feet or 40 feet in length. Less common lengths include, for example, 24, 28, 44, 45, 46, 48, 53, and 56 feet.

Corporation  means the Great Lakes St. Lawrence Seaway Development Corporation.

Domestic cargo  means cargo, the shipment of which originates at one Canadian point and terminates at another Canadian point, or originates at one United States point and terminates at another United States point or originates at one Canadian or United States point in the Great Lakes Saint Lawrence Seaway System and terminates at another Canadian or United States point in the Great Lakes Saint Lawrence Seaway System but does not include import or export cargo designated at the point of origin for transshipment by water at a point in Canada or in the United States.

Gateway incentive  means a percentage reduction, as part of an incentive program, negotiated and offered on applicable cargo tolls for shipments of a specific commodity diverted to the Seaway from a competing gateway.

General cargo  means goods other than bulk cargo, grain, government aid cargo, steel slabs and coal.

Government aid cargo  means:

(1) Processed food products that are donated by, or the purchase of which has been financed on concessional terms by, the federal government of the United States or Canada for the purposes of nutrition, economic development, emergency, or disaster relief programs; and

(2) Food cargo that is:

(i) Owned or financed by a non-profit organization or cooperative;

(ii) Intended for use in humanitarian or development assistance overseas; and

(iii) Stamped or otherwise shown to have been declared as such to that is certified by the customs service of the United States or Canada.

Grain  means barley, corn, oats, flaxseed, rapeseed, soybeans, field crop seeds, buckwheat, dried beans, dried peas, rye, wheat, grain screenings or meal from those grains.

Great Lakes/St. Lawrence Seaway System  means all ports in the Great Lakes and the St. Lawrence River.

Incremental volume  means the portion of tonnage shipped through the Seaway by a specific shipper/receiver in a given season, above the pre-approved maximum tonnage realized by that specific shipper/receiver over the previous five (5) navigation seasons.

Liner service  means one or more vessels operated by a single operator on a fixed route between designated port, providing regularly scheduled service for consignments of multiple commodities.

Manager  means the St. Lawrence Seaway Management Corporation.

Maximum volume  means the highest total annual tonnage of a specific commodity that a shipper/receiver has shipped through the Seaway over the previous 5 years.

Metric ton  means 1,000 kilograms (2204.62 pounds).

Navigation season  means the period commencing on an opening date and ending on the next closing date.

New business  means:

(1) Containerized cargo moved by vessel in the Seaway at any time in a navigation season;

(2) A commodity/origin/destination combination in which the commodity moved by vessel in the Seaway at any time in a navigation season:

(i) Originating at a point inside Canada or the United States of America or at a country outside Canada or the United States of America, provided that such commodity has not originated from such point or country, as the case may be, at any time in any of the five consecutive navigation seasons immediately preceding the then current navigation season;

(ii) Destined to a point inside Canada or the United States of America or a country outside Canada or the United States of America, provided that such commodity has not been destined to such point or country, as the case may be, at any time in any of the five consecutive navigation seasons immediately preceding the then current navigation season;

(iii) Originating at a point inside Canada or the United States of America or a country outside Canada or the United States of America and destined to a point inside Canada or the United States of America or a country outside Canada or the United States of America, provided that such Commodity was previously moved by any mode of transportation other than by vessel at all times in the five consecutive navigation seasons immediately preceding the then current navigation season; or

(iv) That has not moved through either section of the Seaway in any of the five consecutive navigation seasons immediately preceding the then current navigation season, in a volume exceeding 10,000 metric tons.

Opening date  means, in respect of any year, the earliest date in such year on which either the Montreal-Lake Ontario portion or the Welland Canal portion of the Seaway is opened for vessel traffic, provided however that if such date is prior to April 1 the opening date in such year shall be deemed to be the 1st day of April in such year.

Passenger  means a person being transported through the Seaway who has paid a fare for passage.

Pleasure craft  means a vessel, however propelled, that is used exclusively for pleasure and does not carry passengers.

Seaway  includes all facilities and services authorized under Public Law 358, 83rd Congress, May 13, 1954, enacted by the Congress of the United States, as amended, (33 U.S.C. 981,  et seq. ) and the meaning ascribed to it under the Canada Marine Act.

Section of the Seaway  means either the Montreal-Lake Ontario portion of the Seaway or the Welland Canal portion of the Seaway.

Semi-liner  service means a reduced or limited  liner service,  offering fewer regularly scheduled voyages and/or fewer designated ports of calls.

Service incentive  means a percentage reduction, as part of an incentive program offered on applicable cargo tolls in respect of New Business shipments made by way of any newly established regular service out of the Great Lakes.

Shipper/receiver  means any company who owns or buys the cargo that is being shipped through the Seaway.

Toll reduction  means the negotiated percentage of refund on applicable cargo tolls under the Gateway Incentive program.

Vessel  (“ship” in Canada) means every type of craft used as a means of transportation on water, except a vessel owned or employed by the Manager or the Corporation.

Volume commitment  means the negotiated annual cargo tonnage, with a minimum of 75,000 metric tons per year, a shipper/receiver must reach for the negotiated toll reduction under the Gateway Incentive to become applicable.

Volume rebate  means a percentage reduction, as part of an initiative program, offered on applicable cargo tolls for shipments of a specific commodity above and beyond a pre-approved historical maximum volume."
33:33:3.0.2.1.3.0.21.4,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.4 Tolls.,USACE,,,"[66 FR 15329, Mar. 16, 2001, as amended at 71 FR 14807, Mar. 24, 2006; 74 FR 10679, Mar. 12, 2009; 79 FR 13252, Mar. 10, 2014; 81 FR 14391, Mar. 17, 2016; 88 FR 15275, Mar. 13, 2023]","(a) Every vessel entering, passing through or leaving the Seaway shall pay a toll that is the sum of each applicable charge in § 402.12. Each charge is calculated on the description set out in column 1 of § 402.12 and the rate set out in column 2 or 3.

(b) The toll is assessed against the vessel and its cargo for a complete or partial transit of the Seaway and covers a single trip in one direction.

(c) The toll is due from the representative of the vessel within 45 days after the day on which the vessel enters the first lock of a transit of the Seaway.

(d) Except as set out in paragraph (e) of this section, the Volume Rebate incentive cannot be combined ( i.e. , applied to the same cargo movement) with either of the New Business Incentive or the Service Incentive Programs.

(e) Except for cargoes that qualify for the New Business Incentive, any cargo being shipped by a liner or semi-liner approved under the Service Incentive program shall be eligible for the Volume Rebate Incentive."
33:33:3.0.2.1.3.0.21.5,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.5 New Business Incentive Program.,USACE,,,"[74 FR 10679, Mar. 12, 2009, as amended at 78 FR 19106, Mar. 29, 2013; 80 FR 5047, Jan. 30, 2015]","(a) To be eligible for the rebate applicable under the New Business Incentive Program, a carrier must submit an application to the Manager for the proposed commodity/origin/destination combination to be approved and accepted under the rules of the New Business Incentive Program promulgated and administered from time to time by the Manager.

(b) Containerized cargo, whatever the origin or destination, moved by a vessel in the Seaway at any time in the current navigation season qualifies as New Business.

(c) A commodity/origin/destination combination that qualifies as New Business on or before the 30th day of September in any navigation season continues to qualify as New Business in the two consecutive navigation seasons immediately following the then current navigation season.

(d) A commodity/origin/destination combination that qualifies as New Business after the 30th day of September in any navigation season continues to qualify as New Business in the three consecutive navigation seasons immediately following the then current navigation season."
33:33:3.0.2.1.3.0.21.6,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.6 Volume Rebate Incentive program.,USACE,,,"[74 FR 10680, Mar. 12, 2009]","(a) To be eligible to the Volume Rebate Incentive program:

(1) A shipper/receiver in the Great Lakes/St. Lawrence Seaway System must submit to the Manager for approval, before June 30th of every season, the commodity, as defined under the Manager's commodity classification, for which a Volume Rebate is sought, the origin or destination of the commodity, and a proof of the maximum volume of the commodity the shipper/receiver has shipped over the last 5 years from that origin or to that destination.

(2) The shipper/receiver must already move the commodity, as defined under the Manager's commodity classification, through the Seaway at a minimum of 100,000 tonnes per season for the past five navigation seasons.

(b) Once approved by the Manager, the maximum volume will become the basis on which to calculate the incremental volume.

(c) The Volume Rebate Incentive program is not accessible at the end of the navigation season without a pre-approved maximum volume within the set deadline.

(d) The same cargo volume can only be used by one shipper/receiver.

(e) For the Volume Rebate to be applicable, the total volume of the commodity shipped through the Seaway must also increase during the navigation season."
33:33:3.0.2.1.3.0.21.7,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.7 Service Incentive Program.,USACE,,,"[79 FR 13253, Mar. 10, 2014, as amended at 80 FR 5048, Jan. 30, 2015]","(a) To be eligible for the Service Incentive Program, cargos must qualify as New Business under the New Business Incentive Program, and be shipped by a service meeting all of the requirements (Qualifying Service):

(1) A liner or semi-liner service between the same ports;

(2) The service must call on multiple origin ports, or multiple destination ports;

(3) The service must not be limited to the movement of one specific commodity;

(4) The service must service markets outside of the Great Lakes; and

(5) The service must not replace or displace any of the carrier's existing services. The Manager reserves the right to require proof of the ultimate origin and destination of cargoes in order to ensure there is no diversion of existing cargoes.

(b) The Service incentive applies only to New Business applications approved after the commencement date of the Qualifying Service. New Business applications approved prior to the date of commencement of the Qualifying Service will be ineligible for the Service Incentive Program.

(c) The Service Incentive applies only to cargoes exported from the Great Lakes, and is not applicable to import cargoes.

(d) The carrier will provide the Manager with written notice of its intention to apply for the Service Incentive at least thirty (30) days prior to implementation of the Qualifying Service.

(e) The carrier will advise the Manager of the proposed interval (weekly, monthly, etc.) of the Qualifying Service, and the number of calls scheduled for the Navigation Season. Additional calls to the system may be added during the season.

(f) The carrier will advise the Manager of port rotation, outlining core ports of calls when providing notification of schedule rotation. Additional ports may be added at any time provided the core schedule ports are called.

(g) The carrier will advertise the Qualifying Service on its own Web site, available port Web sites, and with Manager's Assistance on the HWY H20 Web site.

(h) The carrier must meet 75% schedule adherence with a minimum of four (4) Great Lakes calls during the navigation season.

(i) The carrier will provide the Manager with a request for the Service Incentive refund, together with copies of any documents required to support the request, within sixty (60) days of the close of the navigation season. Requests for refunds should be submitted to the Manager, Revenue and Forecast for the Manager, who will be responsible for reviewing and approving Service Incentive requests.

(j) Service Incentive of 20% of tolls paid in respect of cargo shipped by Qualifying Service will be refunded by the Manager after the close of the navigation season, once the Manager has confirmed that the carrier has met the schedule adherence requirement."
33:33:3.0.2.1.3.0.21.8,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.8 Gateway Incentive.,USACE,,,"[81 FR 14391, Mar. 17, 2016, as amended at 88 FR 15275, Mar. 13, 2023]","(a) To be eligible for the Gateway Incentive, cargoes, must presently be moving between a specific origin and destination via other competing gateways.

(b) To be eligible for the refund applicable under the Gateway Incentive program, a shipper/receiver, or its representative, must:

(1) Submit an application to the Manager for the proposed movement (cargo/origin/destination) to be approved under the rules of the Gateway Incentive program;

(2) Supply to the Manager the information proving that the proposed movement is currently done via a competing gateway;

(3) Negotiate with the Manager the terms of the proposal, that is an applicable toll reduction, a volume commitment, and the duration of the proposal.

(c) The shipper/receiver, or its representative, will qualify annually for the negotiated toll reduction upon completion of the annual volume commitment.

(d) The Gateway Incentive applies only to movements of qualified cargoes done after the commencement date of the qualified Gateway Incentive. Movements done prior to the date of commencement of the Gateway Incentive will be ineligible for the rebate.

(e) The shipper/receiver, or its representative, will provide the Manager with a request for the Gateway Incentive refund, together with copies of any documents required to support the request, within sixty (60) days of the close of the navigation season. Requests for refunds should be submitted to the Manager who will be responsible for reviewing all documents and data and recommending the refund under the Gateway Incentive.

(f) The negotiated Gateway Incentive percentage of tolls reduction paid in respect of qualifying cargo shipped will be refunded by the Manager after the close of the navigation season, once the Manager has confirmed through the review of submitted support documents that the shipper/receiver has met the volume commitment. The Manager reserves the right to require the ultimate origin and destination of cargoes to validate the commitment.

(g) The Manager reserves the right to immediately terminate any Gateway Incentive agreement."
33:33:3.0.2.1.3.0.21.9,33,Navigation and Navigable Waters,IV,,402,PART 402—TARIFF OF TOLLS,,,,§ 402.9 Description and weight of cargo.,USACE,,,"[66 FR 15329, Mar. 16, 2001, as amended at 72 FR 4431, Jan. 31, 2007. Redesignated at 74 FR 10679, Mar. 12, 2009, and further redesignated at 79 FR 13253, Mar. 10, 2014, and at 81 FR 14391, Mar. 17, 2016]","For the purposes of calculating applicable tolls:

(a) A cord of pulpwood is taken to weigh 1,450 kilograms (3,196.70 pounds); and

(b) The cargo tonnage shall be rounded to the nearest 1,000 kilograms (2,204.62 pounds.)"
44:44:1.0.2.7.3.0.10.1,44,Emergency Management and Assistance,IV,,402,"PART 402—SHIPMENTS ON AMERICAN FLAG SHIPS AND AIRCRAFT (T-1, INT. 1)",,,,§ 402.1 Shipments from the United States.,DHS,,,,"Transportation Order T-1 applies to shipments from the United States, as well as to shipments from foreign ports, on American flag ships and aircraft."
44:44:1.0.2.7.3.0.10.2,44,Emergency Management and Assistance,IV,,402,"PART 402—SHIPMENTS ON AMERICAN FLAG SHIPS AND AIRCRAFT (T-1, INT. 1)",,,,§ 402.2 Restricted commodities.,DHS,,,,"The restrictions of Transportation Order T-1 apply to the transportation or discharge of (a) commodities on the Positive List (15 CFR part 399) (as amended from time to time) of the Comprehensive Export Schedule of the Office of International Trade, Department of Commerce, (b) articles on the list of arms, ammunition and implements of war coming within the meaning of Proclamation No. 2776 of March 26, 1948, and (c) commodities, including fissionable materials, controlled for export under the Atomic Energy Act of 1946. The restrictions imposed by Transportation Order T-1 do not apply to other commodities, not within these restricted classes at the time of transportation or discharge, even though authorization for the export of the commodity from the United States to the particular destination is required under regulations of the Office of International Trade or under other Federal law or regulation. In this respect, Order T-1 is different from Order T-2 which applies to all commodities destined to Communist China. Order T-1 does not relax or modify any of the requirements of any other regulation or law."
44:44:1.0.2.7.3.0.10.3,44,Emergency Management and Assistance,IV,,402,"PART 402—SHIPMENTS ON AMERICAN FLAG SHIPS AND AIRCRAFT (T-1, INT. 1)",,,,§ 402.3 Addition of commodities to the Positive List.,DHS,,,,"Order T-1 applies to the transportation or discharge of commodities which are restricted at the time of transportation or discharge. Accordingly, if a commodity is added to the Positive List while the commodity is being transported on an American flag ship or aircraft, the restrictions of Order T-1 immediately apply and the commodity may not be transported to or discharged at any of the restricted ports or discharged in transit to one of the restricted ports, unless authorization under Order T-1 is obtained."
44:44:1.0.2.7.3.0.10.4,44,Emergency Management and Assistance,IV,,402,"PART 402—SHIPMENTS ON AMERICAN FLAG SHIPS AND AIRCRAFT (T-1, INT. 1)",,,,§ 402.4 Calls at restricted ports en route to an unrestricted port with restricted cargo.,DHS,,,,"Order T-1 does not prohibit an American flag ship or aircraft from going to or calling at one of the restricted ports, even though it has on board a commodity which could not be discharged at that port. (Note, however, that Order T-2 prohibits American flag ships and aircraft from calling at any port or other place in Communist China.) For example, an American flag ship may call at one of the restricted ports (except one in Communist China), even though it has on board the following classes of commodities:

(a) A Positive List commodity manifested to a destination outside the restricted area, with an export license and an export declaration showing the unrestricted destination at the ultimate destination, (b) a Positive List commodity destined for the restricted port of call which cannot be discharged there because there is no export license or authorization from the Assistant Secretary for Domestic and International Business permitting discharge at the restricted port of call, (c) a commodity of any kind destined for Communist China (the transportation and discharge of which is covered by Order T-2). None of these commodities may be discharged at the restricted port of call. Discharge of any of these commodities at the port covered by the restrictions of Order T-1 is prohibited and subject to penalty, regardless of the circumstances under which the discharge of the cargo at the restricted port occurs, unless appropriate authorization is obtained."
44:44:1.0.2.7.3.0.10.5,44,Emergency Management and Assistance,IV,,402,"PART 402—SHIPMENTS ON AMERICAN FLAG SHIPS AND AIRCRAFT (T-1, INT. 1)",,,,§ 402.5 Forwarding commodities previously shipped.,DHS,,,,"Order T-1 applies to transportation on or discharge from ships documented under the laws of the United States and aircraft registered under the laws of the United States. These restrictions apply either in the case of a discharge at one of the restricted ports or to discharge at any other port in transit to a restricted destination. The restrictions of Order T-1 do not apply to transportation by foreign carriers, as long as there is no prohibited transportation or discharge by or from a United States flag ship or aircraft after the issuance of Order T-1. Accordingly, if an American flag ship or aircraft, before the issuance of Order T-1, had transported restricted commodities manifested to restricted destinations, and had completed the transportation to a foreign intermediate point and had completed the discharge from the American flag ship or aircraft before the issuance of Order T-1, no violation of that order would have occurred, but Order T-1 would prohibit further shipment on an American flag ship or aircraft unless authorization under Order T-1 is obtained."
44:44:1.0.2.7.3.0.10.6,44,Emergency Management and Assistance,IV,,402,"PART 402—SHIPMENTS ON AMERICAN FLAG SHIPS AND AIRCRAFT (T-1, INT. 1)",,,,§ 402.6 Relation to Transportation Order T-2.,DHS,,,,"Transportation Order T-1 applies to the transportation of commodities to, or in transit to, destinations in Sub-Group A, Hong Kong or Macao. It applies, however, only to commodities on the Positive List of the Office of International Trade, arms and ammunition, and commodities controlled under the Atomic Energy Act (see section 2 of this interpretation). Transportation Order T-2 applies to the transportation of commodities of any kind which are destined to Communist China (Order T-2 also prohibits American ships and aircraft from calling at any port or place in Communist China). Since Communist China is in Sub-Group A, the restrictions of both orders apply to the transportation of commodities to Communist China or to any other point in transit to Communist China."
46:46:8.0.2.13.3.1.18.1,46,Shipping,III,,402,PART 402—GREAT LAKES PILOTAGE RULES AND ORDERS,A,Subpart A—General,,§ 402.100 Purpose.,USCG,,,"[27 FR 11947, Dec. 4, 1962, as amended at 32 FR 14223, Oct. 13, 1967; 61 FR 5721, Feb. 14, 1996. Redesignated and amended at 61 FR 32655, June 25, 1996, and further redesignated and amended by USCG-1998-3976, 63 FR 35139, 35140, June 29, 1998]",The purpose of this part is to implement those provisions of the Great Lakes Pilotage Regulations (part 401 of this chapter) which authorize or require the Commandant to issue supplementary rules and orders.
46:46:8.0.2.13.3.2.18.1,46,Shipping,III,,402,PART 402—GREAT LAKES PILOTAGE RULES AND ORDERS,B,Subpart B—Registration of Pilots,,§ 402.210 Requirements and qualifications for registration.,USCG,,,"[USCG-2022-0025, 89 FR 76354, Sept. 17, 2024]","Pursuant to § 401.210(a)(4), each applicant for an original registration at the time of application and each Applicant Trainee, Apprentice Pilot, United States Registered Pilot, and Temporary Registered Pilot is required to pass a physical examination in accordance with subpart C of 46 CFR part 10."
46:46:8.0.2.13.3.2.18.2,46,Shipping,III,,402,PART 402—GREAT LAKES PILOTAGE RULES AND ORDERS,B,Subpart B—Registration of Pilots,,§ 402.220 Registration of Pilots.,USCG,,,"[USCG-2022-0025, 89 FR 76354, Sept. 17, 2024]","(a) Each Apprentice Pilot must complete the minimum number of round trips specified in this section prior to registration as a United States Registered Pilot. The round trips must be made in company with a United States Registered Pilot or Temporary Registered Pilot, on oceangoing vessels that have a gross tonnage of at least 4,000. The pilot association training committee, pilot association president, or Director may require additional round trips to demonstrate proficiency for a given waterway or specific port in order to ensure maritime safety. The minimum number of round trips listed here is not intended to guarantee completion of a training plan or advancement towards Full Registration.

(1) If the Apprentice Pilot holds a Master endorsement, a minimum of five round trips are required over the waters for which registration is desired.

(2) If the Apprentice Pilot holds a Chief Mate endorsement or a Second Mate endorsement, or holds a First-Class Pilot endorsement with service in the capacity of First Mate or Second Mate, a minimum of eight round trips are required over the waters for which registration is desired.

(3) If the Apprentice Pilot holds a First-Class Pilot endorsement or a Third Mate endorsement, a minimum of twelve round trips are required over the waters for which registration is desired.

(b) No course of instruction prescribed by a pilot association will be approved unless it includes the following minimum criteria:

(1) Instruction in the maneuvering characteristics of various types of vessels and propulsion machinery, including the characteristics of direct-drive motor, geared-drive motor, turbo-electric, steam turbine and steam reciprocating drives. Study of maneuvering characteristics to include turning radius, times and distances to stop, time to back, etc.

(2) Instruction in the effects of oceangoing vessels in restricted waters.

(3) Instruction in the use of tugs, docking procedures in locks and piers, and transiting bridges.

(4) Instruction in search and rescue and civil defense procedures as issued by the U.S. Coast Guard, Federal, State, and local port authorities.

(5) Instruction in communication, security, and signal procedures applicable to U.S. registered and foreign vessels on the Great Lakes as prescribed by the U.S. Coast Guard, St. Lawrence Seaway Development Corporation, U.S. Corps of Army Engineers, and port authorities.

(6) Instruction in Customs, Immigration, Quarantine, Department of Agriculture, and Coast Guard regulations applicable to U.S. registered and foreign vessels on the Great Lakes.

(7) Instruction in the Great Lakes Pilotage Act of 1960; Great Lakes Pilotage Regulations; Presidential Proclamation of December 22, 1960; and Memorandum of Understanding, Great Lakes Pilotage, Between The United States Coast Guard and The Great Lakes Pilotage Authority, effective September 19, 2013.

(8) Instruction in miscellaneous subjects including man-overboard recovery ( i.e.,  Williamson turn); collision, fire, and explosion procedures; and maneuvering in ice."
46:46:8.0.2.13.3.3.18.1,46,Shipping,III,,402,PART 402—GREAT LAKES PILOTAGE RULES AND ORDERS,C,Subpart C—Establishment of Pilotage Pools by Voluntary Associations of United States Registered Pilots,,§ 402.320 Working rules.,USCG,,,"[USCG-2022-0025, 89 FR 76354, Sept. 17, 2024]",Sections 401.320(d)(2) and (6) of this chapter require that voluntary associations of United States Registered Pilots authorized to establish pilotage pools agree to submit Working Rules for approval of the Director and that they will coordinate their pilotage pool operations with Canada on a reciprocal basis. The approved Working Rules of each pilot district are on file in the office of the Director and may request a copy of the Working Rules by emailing  GreatLakesPilotage@uscg.mil.
50:50:11.0.3.9.3.1.1.1,50,Wildlife and Fisheries,IV,A    ,402,"PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED",A,Subpart A—General,,§ 402.01 Scope.,FWS,,,,"(a) This part interprets and implements sections 7(a)-(d) [16 U.S.C. 1536(a)-(d)] of the Endangered Species Act of 1973, as amended (“Act”). Section 7(a) grants authority to and imposes requirements upon Federal agencies regarding endangered or threatened species of fish, wildlife, or plants (“listed species”) and habitat of such species that has been designated as critical (“critical habitat”). Section 7(a)(1) of the Act directs Federal agencies, in consultation with and with the assistance of the Secretary of the Interior or of Commerce, as appropriate, to utilize their authorities to further the purposes of the Act by carrying out conservation programs for listed species. Such affirmative conservation programs must comply with applicable permit requirements (50 CFR parts 17, 220, 222, and 227) for listed species and should be coordinated with the appropriate Secretary. Section 7(a)(2) of the Act requires every Federal agency, in consultation with and with the assistance of the Secretary, to insure that any action it authorizes, funds, or carries out, in the United States or upon the high seas, is not likely to jeopardize the continued existence of any listed species or results in the destruction or adverse modification of critical habitat. Section 7(a)(3) of the Act authorizes a prospective permit or license applicant to request the issuing Federal agency to enter into early consultation with the Service on a proposed action to determine whether such action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat. Section 7(a)(4) of the Act requires Federal agencies to confer with the Secretary on any action that is likely to jeopardize the continued existence of proposed species or result in the destruction or adverse modification of proposed critical habitat. Section 7(b) of the Act requires the Secretary, after the conclusion of early or formal consultation, to issue a written statement setting forth the Secretary's opinion detailing how the agency action affects listed species or critical habitat Biological assessments are required under section 7(c) of the Act if listed species or critical habitat may be present in the area affected by any major construction activity as defined in § 404.02. Section 7(d) of the Act prohibits Federal agencies and applicants from making any irreversible or irretrievable commitment of resources which has the effect of foreclosing the formulation or implementation of reasonable and prudent alternatives which would avoid jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat. Section 7(e)-(o)(1) of the Act provide procedures for granting exemptions from the requirements of section 7(a)(2). Regulations governing the submission of exemption applications are found at 50 CFR part 451, and regulations governing the exemption process are found at 50 CFR parts 450, 452, and 453.

(b) The U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) share responsibilities for administering the Act. The Lists of Endangered and Threatened Wildlife and Plants are found in 50 CFR 17.11 and 17.12 and the designated critical habitats are found in 50 CFR 17.95 and 17.96 and 50 CFR part 226. Endangered or threatened species under the jurisdiction of the NMFS are located in 50 CFR 222.23(a) and 227.4. If the subject species is cited in 50 CFR 222.23(a) or 227.4, the Federal agency shall contact the NMFS. For all other listed species the Federal Agency shall contact the FWS."
50:50:11.0.3.9.3.1.1.2,50,Wildlife and Fisheries,IV,A    ,402,"PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED",A,Subpart A—General,,§ 402.02 Definitions.,FWS,,,"[51 FR 19957, June 3, 1986, as amended at 73 FR 76286, Dec. 16, 2008; 74 FR 20422, May 4, 2009; 80 FR 26844, May 11, 2015; 81 FR 7225, Feb. 11, 2016; 84 FR 45016, Aug. 27, 2019; 89 FR 24297, Apr. 5, 2024]","Act  means the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531  et seq.

Action  means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to:

(a) actions intended to conserve listed species or their habitat;

(b) the promulgation of regulations;

(c) the granting of licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or

(d) actions directly or indirectly causing modifications to the land, water, or air.

Action area  means all areas to be affected directly or indirectly by the Federal action and not merely the immediate area involved in the action.

Applicant  refers to any person, as defined in section 3(13) of the Act, who requires formal approval or authorization from a Federal agency as a prerequisite to conducting the action.

Biological assessment  refers to the information prepared by or under the direction of the Federal agency concerning listed and proposed species and designated and proposed critical habitat that may be present in the action area and the evaluation potential effects of the action on such species and habitat.

Biological opinion  is the document that states the opinion of the Service as to whether or not the Federal action is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.

Conference  is a process which involves informal discussions between a Federal agency and the Service under section 7(a)(4) of the Act regarding the impact of an action on proposed species or proposed critical habitat and recommendations to minimize or avoid the adverse effects.

Conservation recommendations  are suggestions of the Service regarding discretionary measures to minimize or avoid adverse effects of a proposed action on listed species or critical habitat or regarding the development of information.

Critical habitat  refers to an area designated as critical habitat listed in 50 CFR parts 17 or 226.

Cumulative effects  are those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation.

Designated non-Federal representative  refers to a person designated by the Federal agency as its representative to conduct informal consultation and/or to prepare any biological assessment.

Destruction or adverse modification  means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species.

Director  refers to the Assistant Administrator for Fisheries for the National Marine Fisheries Service, or his or her authorized representative; or the Director of the U.S. Fish and Wildlife Service, or his or her authorized representative.

Early consultation  is a process requested by a Federal agency on behalf of a prospective applicant under section 7(a)(3) of the Act.

Effects of the action  are all consequences to listed species or critical habitat that are caused by the proposed action, including the consequences of other activities that are caused by the proposed action but that are not part of the action. A consequence is caused by the proposed action if it would not occur but for the proposed action and it is reasonably certain to occur. Effects of the action may occur later in time and may include consequences occurring outside the immediate area involved in the action.

Environmental baseline  refers to the condition of the listed species or its designated critical habitat in the action area, without the consequences to the listed species or designated critical habitat caused by the proposed action. The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process. The impacts to listed species or designated critical habitat from Federal agency activities or existing Federal agency facilities that are not within the agency's discretion to modify are part of the environmental baseline.

Formal consultation  is a process between the Service and the Federal agency that commences with the Federal agency's written request for consultation under section 7(a)(2) of the Act and concludes with the Service's issuance of the biological opinion under section 7(b)(3) of the Act.

Framework programmatic action  means, for purposes of an incidental take statement, a Federal action that approves a framework for the development of future action(s) that are authorized, funded, or carried out at a later time, and any take of a listed species would not occur unless and until those future action(s) are authorized, funded, or carried out and subject to further section 7 consultation.

Incidental take  refers to takings that result from, but are not the purpose of, carrying out an otherwise lawful activity conducted by the Federal agency or applicant.

Informal consultation  is an optional process that includes all discussions, correspondence, etc., between the Service and the Federal agency or the designated non-Federal representative prior to formal consultation, if required.

Jeopardize the continued existence of  means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.

Listed species  means any species of fish, wildlife, or plant which has been determined to be endangered or threatened under section 4 of the Act. Listed species are found in 50 CFR 17.11-17.12.

Major construction activity  is a construction project (or other undertaking having similar physical impacts) which is a major Federal action significantly affecting the quality of the human environment as referred to in the National Environmental Policy Act [NEPA, 42 U.S.C. 4332(2)(C)].

Mixed programmatic action  means, for purposes of an incidental take statement, a Federal action that approves action(s) that will not be subject to further section 7 consultation, and also approves a framework for the development of future action(s) that are authorized, funded, or carried out at a later time and any take of a listed species would not occur unless and until those future action(s) are authorized, funded, or carried out and subject to further section 7 consultation.

Preliminary biological opinion  refers to an opinion issued as a result of early consultation.

Programmatic consultation  is a consultation addressing an agency's multiple actions on a program, region, or other basis. Programmatic consultations allow the Services to consult on the effects of programmatic actions such as:

(1) Multiple similar, frequently occurring, or routine actions expected to be implemented in particular geographic areas; and

(2) A proposed program, plan, policy, or regulation providing a framework for future proposed actions.

Proposed critical habitat  means habitat proposed in the  Federal Register  to be designated or revised as critical habitat under section 4 of the Act for any listed or proposed species.

Proposed species  means any species of fish, wildlife, or plant that is proposed in the  Federal Register  to be listed under section 4 of the Act.

Reasonable and prudent alternatives  refer to alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency's legal authority and jurisdiction, that is economically and technologically feasible, and that the Director believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat.

Reasonable and prudent measures  refer to those actions the Director considers necessary or appropriate to minimize the impact of the incidental take on the species.

Recovery  means improvement in the status of listed species to the point at which listing is no longer appropriate under the criteria set out in section 4(a)(1) of the Act.

Service  means the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, as appropriate."
50:50:11.0.3.9.3.1.1.3,50,Wildlife and Fisheries,IV,A    ,402,"PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED",A,Subpart A—General,,§ 402.03 Applicability.,FWS,,,"[74 FR 20423, May 4, 2009]",Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.
50:50:11.0.3.9.3.1.1.4,50,Wildlife and Fisheries,IV,A    ,402,"PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED",A,Subpart A—General,,§ 402.04 Counterpart regulations.,FWS,,,,"The consultation procedures set forth in this part may be superseded for a particular Federal agency by joint counterpart regulations among that agency, the Fish and Wildlife Service, and the National Marine Fisheries Service. Such counterpart regulations shall be published in the  Federal Register  in proposed form and shall be subject to public comment for at least 60 days before final rules are published."
50:50:11.0.3.9.3.1.1.5,50,Wildlife and Fisheries,IV,A    ,402,"PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED",A,Subpart A—General,,§ 402.05 Emergencies.,FWS,,,,"(a) Where emergency circumstances mandate the need to consult in an expedited manner, consultation may be conducted informally through alternative procedures that the Director determines to be consistent with the requirements of sections 7(a)-(d) of the Act. This provision applies to situations involving acts of God, disasters, casualties, national defense or security emergencies, etc.

(b) Formal consultation shall be initiated as soon as practicable after the emergency is under control. The Federal agency shall submit information on the nature of the emergency action(s), the justification for the expedited consultation, and the impacts to endangered or threatened species and their habitats. The Service will evaluate such information and issue a biological opinion including the information and recommendations given during the emergency consultation."
50:50:11.0.3.9.3.1.1.6,50,Wildlife and Fisheries,IV,A    ,402,"PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED",A,Subpart A—General,,§ 402.06 Coordination with other environmental reviews.,FWS,,,,"(a) Consultation, conference, and biological assessment procedures under section 7 may be consolidated with interagency cooperation procedures required by other statutes, such as the National Environmental Policy Act (NEPA) (42 U.S.C. 4321  et seq.,  implemented at 40 CFR parts 1500-1508) or the Fish and Wildlife Coordination Act (FWCA) (16 U.S.C. 661  et seq. ). Satisfying the requirements of these other statutes, however, does not in itself relieve a Federal agency of its obligations to comply with the procedures set forth in this part or the substantive requirements of section 7. The Service will attempt to provide a coordinated review and analysis of all environmental requirements.

(b) Where the consultation or conference has been consolidated with the interagency cooperation procedures required by other statutes such as NEPA or FWCA, the results should be included in the documents required by those statutes."
50:50:11.0.3.9.3.1.1.7,50,Wildlife and Fisheries,IV,A    ,402,"PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED",A,Subpart A—General,,§ 402.07 Designation of lead agency.,FWS,,,,"When a particular action involves more than one Federal agency, the consultation and conference responsibilities may be fulfilled through a lead agency. Factors relevant in determining an appropriate lead agency include the time sequence in which the agencies would become involved, the magnitude of their respective involvement, and their relative expertise with respect to the environmental effects of the action. The Director shall be notified of the designation in writing by the lead agency."
50:50:11.0.3.9.3.1.1.8,50,Wildlife and Fisheries,IV,A    ,402,"PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED",A,Subpart A—General,,§ 402.08 Designation of non-Federal representative.,FWS,,,,"A Federal agency may designate a non-Federal representative to conduct informal consultation or prepare a biological assessment by giving written notice to the Director of such designation. If a permit or license applicant is involved and is not the designated non-Federal representative, then the applicant and Federal agency must agree on the choice of the designated non-Federal representative. If a biological assessment is prepared by the designated non-Federal representative, the Federal agency shall furnish guidance and supervision and shall independently review and evaluate the scope and contents of the biological assessment. The ultimate responsibility for compliance with section 7 remains with the Federal agency."
50:50:11.0.3.9.3.1.1.9,50,Wildlife and Fisheries,IV,A    ,402,"PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED",A,Subpart A—General,,§ 402.09 Irreversible or irretrievable commitment of resources.,FWS,,,,"After initiation or reinitiation of consultation required under section 7(a)(2) of the Act, the Federal agency and any applicant shall make no irreversible or irretrievable commitment of resources with respect to the agency action which has the effect of foreclosing the formulation or implementation of any reasonable and prudent alternatives which would avoid violating section 7(a)(2). This prohibition is in force during the consultation process and continues until the requirements of section 7(a)(2) are satisfied. This provision does not apply to the conference requirement for proposed species or proposed critical habitat under section 7(a)(4) of the Act."
50:50:11.0.3.9.3.2.1.1,50,Wildlife and Fisheries,IV,A    ,402,"PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED",B,Subpart B—Consultation Procedures,,§ 402.10 Conference on proposed species or proposed critical habitat.,FWS,,,,"(a) Each Federal agency shall confer with the Service on any action which is likely to jeopardize the continued existence of any proposed species or result in the destruction or adverse modification of proposed critical habitat. The conference is designed to assist the Federal agency and any applicant in identifying and resolving potential conflicts at an early stage in the planning process.

(b) The Federal agency shall initiate the conference with the Director. The Service may request a conference if, after a review of available information, it determines that a conference is required for a particular action.

(c) A conference between a Federal agency and the Service shall consist of informal discussions concerning an action that is likely to jeopardize the continued existence of the proposed species or result in the destruction or adverse modification of the proposed critical habitat at issue. Applicants may be involved in these informal discussions to the greatest extent practicable. During the conference, the Service will make advisory recommendations, if any, on ways to minimize or avoid adverse effects. If the proposed species is subsequently listed or the proposed critical habitat is designated prior to completion of the action, the Federal agency must review the action to determine whether formal consultation is required.

(d) If requested by the Federal agency and deemed appropriate by the Service, the conference may be conducted in accordance with the procedures for formal consultation in § 402.14. An opinion issued at the conclusion of the conference may be adopted as the biological opinion when the species is listed or critical habitat is designated, but only if no significant new information is developed (including that developed during the rulemaking process on the proposed listing or critical habitat designation) and no significant changes to the Federal action are made that would alter the content of the opinion. An incidental take statement provided with a conference opinion does not become effective unless the Service adopts the opinion once the listing is final.

(e) The conclusions reached during a conference and any recommendations shall be documented by the Service and provided to the Federal agency and to any applicant. The style and magnitude of this document will vary with the complexity of the conference. If formal consultation also is required for a particular action, then the Service will provide the results of the conference with the biological opinion."
50:50:11.0.3.9.3.2.1.2,50,Wildlife and Fisheries,IV,A    ,402,"PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED",B,Subpart B—Consultation Procedures,,§ 402.11 Early consultation.,FWS,,,,"(a)  Purpose.  Early consultation is designed to reduce the likelihood of conflicts between listed species or critical habitat and proposed actions and occurs prior to the filing of an application for a Federal permit or license. Although early consultation is conducted between the Service and the Federal agency, the prospective applicant should be involved throughout the consultation process.

(b)  Request by prospective applicant.  If a prospective applicant has reason to believe that the prospective action may affect listed species or critical habitat, it may request the Federal agency to enter into early consultation with the Service. The prospective applicant must certify in writing to the Federal agency that (1) it has a definitive proposal outlining the action and its effects and (2) it intends to implement its proposal, if authorized.

(c)  Initiation of early consultation.  If the Federal agency receives the prospective applicant's certification in paragraph (b) of this section, then the Federal agency shall initiate early consultation with the Service. This request shall be in writing and contain the information outlined in § 402.14(c) and, if the action is a major construction activity, the biological assessment as outlined in § 402.12.

(d)  Procedures and responsibilities.  The procedures and responsibilities for early consultation are the same as outlined in § 402.14(c)-(j) for formal consultation, except that all references to the “applicant” shall be treated as the “prospective applicant” and all references to the “biological opinion” or the “opinion” shall be treated as the “preliminary biological opinion” for the purpose of this section.

(e)  Preliminary biological opinion.  The contents and conclusions of a preliminary biological opinion are the same as for a biological opinion issued after formal consultation except that the incidental take statement provided with a preliminary biological opinion does not constitute authority to take listed species.

(f)  Confirmation of preliminary biological opinion as final biological opinion.  A preliminary biological opinion may be confirmed as a biological opinion issued after formal consultation if the Service reviews the proposed action and finds that there have been no significant changes in the action as planned or in the information used during the early consultation. A written request for confirmation of the preliminary biological opinion should be submitted after the prospective applicant applies to the Federal agency for a permit or license but prior to the issuance of such permit or license. Within 45 days of receipt of the Federal agency's request, the Service shall either:

(1) Confirm that the preliminary biological opinion stands as a final biological opinion; or

(2) If the findings noted above cannot be made, request that the Federal agency initiate formal consultation."
50:50:11.0.3.9.3.2.1.3,50,Wildlife and Fisheries,IV,A    ,402,"PART 402—INTERAGENCY COOPERATION—ENDANGERED SPECIES ACT OF 1973, AS AMENDED",B,Subpart B—Consultation Procedures,,§ 402.12 Biological assessments.,FWS,,,,"(a)  Purpose.  A biological assessment shall evaluate the potential effects of the action on listed and proposed species and designated and proposed critical habitat and determine whether any such species or habitat are likely to be adversely affected by the action and is used in determining whether formal consultation or a conference is necessary.

(b)  Preparation requirement.  (1) The procedures of this section are required for Federal actions that are “major construction activities”; provided that a contract for construction was not entered into or actual construction was not begun on or before November 10, 1978. Any person, including those who may wish to apply for an exemption from section 7(a)(2) of the Act, may prepare a biological assessment under the supervision of the Federal agency and in cooperation with the Service consistent with the procedures and requirements of this section. An exemption from the requirements of section 7(a)(2) is not permanent unless a biological assessment has been prepared.

(2) The biological assessment shall be completed before any contract for construction is entered into and before construction is begun.

(c)  Request for information.  The Federal agency or the designated non-Federal representative shall convey to the Director either (1) a written request for a list of any listed or proposed species or designated or proposed critical habitat that may be present in the action area; or (2) a written notification of the species and critical habitat that are being included in the biological assessment.

(d)  Director's response.  Within 30 days of receipt of the notification of, or the request for, a species list, the Director shall either concur with or revise the list or, in those cases where no list has been provided, advise the Federal agency or the designated non-Federal representative in writing whether, based on the best scientific and commercial data available, any listed or proposed species or designated or proposed critical habitat may be present in the action area. In addition to listed and proposed species, the Director will provide a list of candidate species that may be present in the action area. Candidate species refers to any species being considered by the Service for listing as endangered or threatened species but not yet the subject of a proposed rule. Although candidate species have no legal status and are accorded no protection under the Act, their inclusion will alert the Federal agency of potential proposals or listings.

(1) If the Director advises that no listed species or critical habitat may be present, the Federal agency need not prepare a biological assessment and further consultation is not required. If only proposed species or proposed critical habitat may be present in the action area, then the Federal agency must confer with the Service if required under § 402.10, but preparation of a biological assessment is not required unless the proposed listing and/or designation becomes final.

(2) If a listed species or critical habitat may be present in the action area, the Director will provide a species list or concur with the species list provided. The Director also will provide available information (or references thereto) regarding these species and critical habitat, and may recommend discretionary studies or surveys that may provide a better information base for the preparation of an assessment. Any recommendation for studies or surveys is not to be construed as the Service's opinion that the Federal agency has failed to satisfy the information standard of section 7(a)(2) of the Act.

(e)  Verification of current accuracy of species list.  If the Federal agency or the designated non-Federal representative does not begin preparation of the biological assessment within 90 days of receipt of (or concurrence with) the species list, the Federal agency or the designated non-Federal representative must verify (formally or informally) with the Service the current accuracy of the species list at the time the preparation of the assessment is begun.

(f)  Contents.  The contents of a biological assessment are at the discretion of the Federal agency and will depend on the nature of the Federal action. The following may be considered for inclusion:

(1) The results of an on-site inspection of the area affected by the action to determine if listed or proposed species are present or occur seasonally.

(2) The views of recognized experts on the species at issue.

(3) A review of the literature and other information.

(4) An analysis of the effects of the action on the species and habitat, including consideration of cumulative effects, and the results of any related studies.

(5) An analysis of alternate actions considered by the Federal agency for the proposed action.

(g)  Incorporation by reference.  If a proposed action requiring the preparation of a biological assessment is identical, or very similar, to a previous action for which a biological assessment was prepared, the Federal agency may fulfill the biological assessment requirement for the proposed action by incorporating by reference the earlier biological assessment, plus any supporting data from other documents that are pertinent to the consultation, into a written certification that:

(1) The proposed action involves similar impacts to the same species in the same geographic area;

(2) No new species have been listed or proposed or no new critical habitat designated or proposed for the action area; and

(3) The biological assessment has been supplemented with any relevant changes in information.

(h)  Permit requirements.  If conducting a biological assessment will involve the taking of a listed species, a permit under section 10 of the Act (16 U.S.C. 1539) and part 17 of this title (with respect to species under the jurisdiction of the FWS) or parts 220, 222, and 227 of this title (with respect to species under the jurisdiction of the NMFS) is required.

(i)  Completion time.  The Federal agency or the designated non- Federal representative shall complete the biological assessment within 180 days after its initiation (receipt of or concurrence with the species list) unless a different period of time is agreed to by the Director and the Federal agency. If a permit or license applicant is involved, the 180-day period may not be extended unless the agency provides the applicant, before the close of the 180-day period, with a written statement setting forth the estimated length of the proposed extension and the reasons why such an extension is necessary.

(j)  Submission of biological assessment.  The Federal agency shall submit the completed biological assessment to the Director for review. The Director will respond in writing within 30 days as to whether or not he concurs with the findings of the biological assessment. At the option of the Federal agency, formal consultation may be initiated under § 402.14(c) concurrently with the submission of the assessment.

(k)  Use of the biological assessment.  (1) The Federal agency shall use the biological assessment in determining whether formal consultation or a conference is required under § 402.14 or § 402.10, respectively. If the biological assessment indicates that there are no listed species or critical habitat present that are likely to be adversely affected by the action and the Director concurs as specified in paragraph (j) of this section, then formal consultation is not required. If the biological assessment indicates that the action is not likely to jeopardize the continued existence of proposed species or result in the destruction or adverse modification of proposed critical habitat, and the Director concurs, then a conference is not required.

(2) The Director may use the results of the biological assessment in (i) determining whether to request the Federal agency to initiate formal consultation or a conference, (ii) formulating a biological opinion, or (iii) formulating a preliminary biological opinion."