{"database": "openregs", "table": "cfr_sections", "is_view": false, "human_description_en": "where part_number = 245 sorted by section_id", "rows": [["17:17:5.0.1.1.5.0.9.1", 17, "Commodity and Securities Exchanges", "II", "", "245", "PART 245\u2014REGULATION BLACKOUT TRADING RESTRICTION", "", "", "", "\u00a7 245.100 Definitions.", "SEC", "", "", "[68 FR 4355, Jan. 28, 2003, as amended at 71 FR 53263, Sept. 8, 2006]", "As used in Regulation BTR (\u00a7\u00a7 245.100 through 245.104), unless the context otherwise requires:\n\n(a) The term  acquired in connection with service or employment as a director or executive officer,  when applied to a director or executive officer, means that he or she acquired, directly or indirectly, an equity security:\n\n(1) At a time when he or she was a director or executive officer, under a compensatory plan, contract, authorization or arrangement, including, but not limited to, an option, warrants or rights plan, a pension, retirement or deferred compensation plan or a bonus, incentive or profit-sharing plan (whether or not set forth in any formal plan document), including a compensatory plan, contract, authorization or arrangement with a parent, subsidiary or affiliate;\n\n(2) At a time when he or she was a director or executive officer, as a result of any transaction or business relationship described in paragraph (a) of Item 404 of Regulation S-K (\u00a7 229.404 of this chapter) or, in the case of a foreign private issuer, Item 7.B of Form 20-F (\u00a7 249.220f of this chapter) (but without application of the disclosure thresholds of such provisions), to the extent that he or she has a pecuniary interest (as defined in paragraph ( l ) of this section) in the equity securities;\n\n(3) At a time when he or she was a director or executive officer, as directors' qualifying shares or other securities that he or she must hold to satisfy minimum ownership requirements or guidelines for directors or executive officers;\n\n(4) Prior to becoming, or while, a director or executive officer where the equity security was acquired as a direct or indirect inducement to service or employment as a director or executive officer; or\n\n(5) Prior to becoming, or while, a director or executive officer where the equity security was received as a result of a business combination in respect of an equity security of an entity involved in the business combination that he or she had acquired in connection with service or employment as a director or executive officer of such entity.\n\n(b) Except as provided in \u00a7 245.102, the term  blackout period :\n\n(1) With respect to the equity securities of any issuer (other than a foreign private issuer), means any period of more than three consecutive business days during which the ability to purchase, sell or otherwise acquire or transfer an interest in any equity security of such issuer held in an individual account plan is temporarily suspended by the issuer or by a fiduciary of the plan with respect to not fewer than 50% of the participants or beneficiaries located in the United States and its territories and possessions under all individual account plans (as defined in paragraph (j) of this section) maintained by the issuer that permit participants or beneficiaries to acquire or hold equity securities of the issuer;\n\n(2) With respect to the equity securities of any foreign private issuer (as defined in \u00a7 240.3b-4(c) of this chapter), means any period of more than three consecutive business days during which both:\n\n(i) The conditions of paragraph (b)(1) of this section are met; and\n\n(ii)(A) The number of participants and beneficiaries located in the United States and its territories and possessions subject to the temporary suspension exceeds 15% of the total number of employees of the issuer and its consolidated subsidiaries; or\n\n(B) More than 50,000 participants and beneficiaries located in the United States and its territories and possessions are subject to the temporary suspension.\n\n(3) In determining the individual account plans (as defined in paragraph (j) of this section) maintained by an issuer for purposes of this paragraph (b):\n\n(i) The rules under section 414(b), (c), (m) and (o) of the Internal Revenue Code (26 U.S.C. 414(b), (c), (m) and (o)) are to be applied; and\n\n(ii) An individual account plan that is maintained outside of the United States primarily for the benefit of persons substantially all of whom are nonresident aliens (within the meaning of section 104(b)(4) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1003(b)(4))) is not to be considered.\n\n(4) In determining the number of participants and beneficiaries in an individual account plan (as defined in paragraph (j) of this section) maintained by an issuer:\n\n(i) The determination may be made as of any date within the 12-month period preceding the beginning date of the temporary suspension in question; provided that if there has been a significant change in the number of participants or beneficiaries in an individual account plan since the date selected, the determination for such plan must be made as of the most recent practicable date that reflects such change; and\n\n(ii) The determination may be made without regard to overlapping plan participation.\n\n(c)(1) The term  director  has, except as provided in paragraph (c)(2) of this section, the meaning set forth in section 3(a)(7) of the Exchange Act (15 U.S.C. 78c(a)(7)).\n\n(2) In the case of a foreign private issuer (as defined in \u00a7 240.3b-4(c) of this chapter), the term  director  means an individual within the definition set forth in section 3(a)(7) of the Exchange Act who is a management employee of the issuer.\n\n(d) The term  derivative security  has the meaning set forth in \u00a7 240.16a-1(c) of this chapter.\n\n(e) The term  equity security  has the meaning set forth in section 3(a)(11) of the Exchange Act (15 U.S.C. 78c(a)(11)) and \u00a7 240.3a11-1 of this chapter.\n\n(f) The term  equity security of the issuer  means any equity security or derivative security relating to an issuer, whether or not issued by that issuer.\n\n(g) The term  Exchange Act  means the Securities Exchange Act of 1934 (15 U.S.C. 78a  et seq. ).\n\n(h)(1) The term  executive officer  has, except as provided in paragraph (h)(2) of this section, the meaning set forth in \u00a7 240.16a-1(f) of this chapter.\n\n(2) In the case of a foreign private issuer (as defined in \u00a7 240.3b-4(c) of this chapter), the term  executive officer  means the principal executive officer or officers, the principal financial officer or officers and the principal accounting officer or officers of the issuer.\n\n(i) The term  exempt security  has the meaning set forth in section 3(a)(12) of the Exchange Act (15 U.S.C. 78c(a)(12)).\n\n(j) The term  individual account plan  means a pension plan which provides for an individual account for each participant and for benefits based solely upon the amount contributed to the participant's account, and any income, expenses, gains and losses, and any forfeitures of accounts of other participants which may be allocated to such participant's account, except that such term does not include a one-participant retirement plan (within the meaning of section 101(i)(8)(B) of the Employee Retirement Income Security Act of 1974 (29 U.S.C. 1021(i)(8)(B))), nor does it include a pension plan in which participation is limited to directors of the issuer.\n\n(k) The term  issuer  means an issuer (as defined in section 3(a)(8) of the Exchange Act (15 U.S.C. 78c(a)(8))), the securities of which are registered under section 12 of the Exchange Act (15 U.S.C. 78 l ) or that is required to file reports under section 15(d) of the Exchange Act (15 U.S.C. 78o(d)) or that files or has filed a registration statement that has not yet become effective under the Securities Act of 1933 (15 U.S.C. 77a  et seq. ) and that it has not withdrawn.\n\n(l) The term  pecuniary interest  has the meaning set forth in \u00a7 240.16a-1(a)(2)(i) of this chapter and the term  indirect pecuniary interest  has the meaning set forth in \u00a7 240.16a-1(a)(2)(ii) of this chapter. Section 240.16a-1(a)(2)(iii) of this chapter also shall apply to determine pecuniary interest for purposes of this regulation."], ["17:17:5.0.1.1.5.0.9.2", 17, "Commodity and Securities Exchanges", "II", "", "245", "PART 245\u2014REGULATION BLACKOUT TRADING RESTRICTION", "", "", "", "\u00a7 245.101 Prohibition of insider trading during pension fund blackout periods.", "SEC", "", "", "[70 FR 1623, Jan. 7, 2005]", "(a) Except to the extent otherwise provided in paragraph (c) of this section, it is unlawful under section 306(a)(1) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7244(a)(1)) for any director or executive officer of an issuer of any equity security (other than an exempt security), directly or indirectly, to purchase, sell or otherwise acquire or transfer any equity security of the issuer (other than an exempt security) during any blackout period with respect to such equity security, if such director or executive officer acquires or previously acquired such equity security in connection with his or her service or employment as a director or executive officer.\n\n(b) For purposes of section 306(a)(1) of the Sarbanes-Oxley Act of 2002, any sale or other transfer of an equity security of the issuer during a blackout period will be treated as a transaction involving an equity security \u201cacquired in connection with service or employment as a director or executive officer\u201d (as defined in \u00a7 245.100(a)) to the extent that the director or executive officer has a pecuniary interest (as defined in \u00a7 245.100(l)) in such equity security, unless the director or executive officer establishes by specific identification of securities that the transaction did not involve an equity security \u201cacquired in connection with service or employment as a director or executive officer.\u201d To establish that the equity security was not so acquired, a director or executive officer must identify the source of the equity securities and demonstrate that he or she has utilized the same specific identification for any purpose related to the transaction (such as tax reporting and any applicable disclosure and reporting requirements).\n\n(c) The following transactions are exempt from section 306(a)(1) of the Sarbanes-Oxley Act of 2002:\n\n(1) Any acquisition of equity securities resulting from the reinvestment of dividends in, or interest on, equity securities of the same issuer if the acquisition is made pursuant to a plan providing for the regular reinvestment of dividends or interest and the plan provides for broad-based participation, does not discriminate in favor of employees of the issuer and operates on substantially the same terms for all plan participants;\n\n(2) Any purchase or sale of equity securities of the issuer pursuant to a contract, instruction or written plan entered into by the director or executive officer that satisfies the affirmative defense conditions of \u00a7 240.10b5-1(c) of this chapter; provided that the director or executive officer did not enter into or modify the contract, instruction or written plan during the blackout period (as defined in \u00a7 245.100(b)) in question, or while aware of the actual or approximate beginning or ending dates of that blackout period (whether or not the director or executive officer received notice of the blackout period as required by Section 306(a)(6) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7244(a)(6)));\n\n(3) Any purchase or sale of equity securities, other than a Discretionary Transaction (as defined in \u00a7 240.16b-3(b)(1) of this chapter), pursuant to a Qualified Plan (as defined in \u00a7 240.16b-3(b)(4) of this chapter), an Excess Benefit Plan (as defined in \u00a7 240.16b-3(b)(2) of this chapter) or a Stock Purchase Plan (as defined in \u00a7 240.16b-3(b)(5) of this chapter) (or, in the case of a foreign private issuer, pursuant to an employee benefit plan that either (i) has been approved by the taxing authority of a foreign jurisdiction, or (ii) is eligible for preferential treatment under the tax laws of a foreign jurisdiction because the plan provides for broad-based employee participation); provided that a Discretionary Transaction that meets the conditions of paragraph (c)(2) of this section also shall be exempt;\n\n(4) Any grant or award of an option, stock appreciation right or other equity compensation pursuant to a plan that, by its terms:\n\n(i) Permits directors or executive officers to receive grants or awards; and\n\n(ii) Either:\n\n(A) States the amount and price of securities to be awarded to designated directors and executive officers or categories of directors and executive officers (though not necessarily to others who may participate in the plan) and specifies the timing of awards to directors and executive officers; or\n\n(B) Sets forth a formula that determines the amount, price and timing, using objective criteria (such as earnings of the issuer, value of the securities, years of service, job classification, and compensation levels);\n\n(5) Any exercise, conversion or termination of a derivative security that the director or executive officer did not write or acquire during the blackout period (as defined in \u00a7 245.100(b)) in question, or while aware of the actual or approximate beginning or ending dates of that blackout period (whether or not the director or executive officer received notice of the blackout period as required by Section 306(a)(6) of the Sarbanes-Oxley Act of 2002); and either:\n\n(i) The derivative security, by its terms, may be exercised, converted or terminated only on a fixed date, with no discretionary provision for earlier exercise, conversion or termination; or\n\n(ii) The derivative security is exercised, converted or terminated by a counterparty and the director or executive officer does not exercise any influence on the counterparty with respect to whether or when to exercise, convert or terminate the derivative security;\n\n(6) Any acquisition or disposition of equity securities involving a bona fide gift or a transfer by will or the laws of descent and distribution;\n\n(7) Any acquisition or disposition of equity securities pursuant to a domestic relations order, as defined in the Internal Revenue Code or Title I of the Employment Retirement Income Security Act of 1974, or the rules thereunder;\n\n(8) Any sale or other disposition of equity securities compelled by the laws or other requirements of an applicable jurisdiction;\n\n(9) Any acquisition or disposition of equity securities in connection with a merger, acquisition, divestiture or similar transaction occurring by operation of law;\n\n(10) The increase or decrease in the number of equity securities held as a result of a stock split or stock dividend applying equally to all securities of that class, including a stock dividend in which equity securities of a different issuer are distributed; and the acquisition of rights, such as shareholder or pre-emptive rights, pursuant to a pro rata grant to all holders of the same class of equity securities; and\n\n(11) Any acquisition or disposition of an asset-backed security, as defined in \u00a7 229.1101 of this chapter."], ["17:17:5.0.1.1.5.0.9.3", 17, "Commodity and Securities Exchanges", "II", "", "245", "PART 245\u2014REGULATION BLACKOUT TRADING RESTRICTION", "", "", "", "\u00a7 245.102 Exceptions to definition of blackout period.", "SEC", "", "", "", "The term \u201cblackout period,\u201d as defined in \u00a7 245.100(b), does not include:\n\n(a) A regularly scheduled period in which participants and beneficiaries may not purchase, sell or otherwise acquire or transfer an interest in any equity security of an issuer, if a description of such period, including its frequency and duration and the plan transactions to be suspended or otherwise affected, is:\n\n(1) Incorporated into the individual account plan or included in the documents or instruments under which the plan operates; and\n\n(2) Disclosed to an employee before he or she formally enrolls, or within 30 days following formal enrollment, as a participant under the individual account plan or within 30 days after the adoption of an amendment to the plan. For purposes of this paragraph (a)(2), the disclosure may be provided in any graphic form that is reasonably accessible to the employee; or\n\n(b) Any trading suspension described in \u00a7 245.100(b) that is imposed in connection with a corporate merger, acquisition, divestiture or similar transaction involving the plan or plan sponsor, the principal purpose of which is to permit persons affiliated with the acquired or divested entity to become participants or beneficiaries, or to cease to be participants or beneficiaries, in an individual account plan; provided that the persons who become participants or beneficiaries in an individual account plan are not able to participate in the same class of equity securities after the merger, acquisition, divestiture or similar transaction as before the transaction."], ["17:17:5.0.1.1.5.0.9.4", 17, "Commodity and Securities Exchanges", "II", "", "245", "PART 245\u2014REGULATION BLACKOUT TRADING RESTRICTION", "", "", "", "\u00a7 245.103 Issuer right of recovery; right of action by equity security owner.", "SEC", "", "", "", "(a)  Recovery of profits.  Section 306(a)(2) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7244(a)(2)) provides that any profit realized by a director or executive officer from any purchase, sale or other acquisition or transfer of any equity security of an issuer in violation of section 306(a)(1) of that Act (15 U.S.C. 7244(a)(1)) will inure to and be recoverable by the issuer, regardless of any intention on the part of the director or executive officer in entering into the transaction.\n\n(b)  Actions to recover profit.  Section 306(a)(2) of the Sarbanes-Oxley Act of 2002 provides that an action to recover profit may be instituted at law or in equity in any court of competent jurisdiction by the issuer, or by the owner of any equity security of the issuer in the name and on behalf of the issuer if the issuer fails or refuses to bring such action within 60 days after the date of request, or fails diligently to prosecute the action thereafter, except that no such suit may be brought more than two years after the date on which such profit was realized.\n\n(c)  Measurement of profit.  (1) In determining the profit recoverable in an action undertaken pursuant to section 306(a)(2) of the Sarbanes-Oxley Act of 2002 from a transaction that involves a purchase, sale or other acquisition or transfer (other than a grant, exercise, conversion or termination of a derivative security) in violation of section 306(a)(1) of that Act of an equity security of an issuer that is registered pursuant to section 12(b) or 12(g) of the Exchange Act (15 U.S.C. 78 l (b) or (g)) and listed on a national securities exchange or listed in an automated inter-dealer quotation system of a national securities association, profit (including any loss avoided) may be measured by comparing the difference between the amount paid or received for the equity security on the date of the transaction during the blackout period and the average market price of the equity security calculated over the first three trading days after the ending date of the blackout period.\n\n(2) In determining the profit recoverable in an action undertaken pursuant to section 306(a)(2) of the Sarbanes-Oxley Act of 2002 from a transaction that is not described in paragraph (c)(1) of this section, profit (including any loss avoided) may be measured in a manner that is consistent with the objective of identifying the amount of any gain realized or loss avoided by a director or executive officer as a result of a transaction taking place in violation of section 306(a)(1) of that Act during the blackout period as opposed to taking place outside of such blackout period.\n\n(3) The terms of this section do not limit in any respect the authority of the Commission to seek or determine remedies as the result of a transaction taking place in violation of section 306(a)(1) of the Sarbanes-Oxley Act."], ["17:17:5.0.1.1.5.0.9.5", 17, "Commodity and Securities Exchanges", "II", "", "245", "PART 245\u2014REGULATION BLACKOUT TRADING RESTRICTION", "", "", "", "\u00a7 245.104 Notice.", "SEC", "", "", "", "(a) In any case in which a director or executive officer is subject to section 306(a)(1) of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7244(a)(1)) in connection with a blackout period (as defined in \u00a7 245.100(b)) with respect to any equity security, the issuer of the equity security must timely notify each director or officer and the Commission of the blackout period.\n\n(b) For purposes of this section:\n\n(1) The notice must include:\n\n(i) The reason or reasons for the blackout period;\n\n(ii) A description of the plan transactions to be suspended during, or otherwise affected by, the blackout period;\n\n(iii) A description of the class of equity securities subject to the blackout period;\n\n(iv) The length of the blackout period by reference to:\n\n(A) The actual or expected beginning date and ending date of the blackout period; or\n\n(B) The calendar week during which the blackout period is expected to begin and the calendar week during which the blackout period is expected to end, provided that the notice to directors and executive officers describes how, during such week or weeks, a director or executive officer may obtain, without charge, information as to whether the blackout period has begun or ended; and provided further that the notice to the Commission describes how, during the blackout period and for a period of two years after the ending date of the blackout period, a security holder or other interested person may obtain, without charge, the actual beginning and ending dates of the blackout period.\n\n(C) For purposes of this paragraph (b)(1)(iv), a  calendar week  means a seven-day period beginning on Sunday and ending on Saturday; and\n\n(v) The name, address and telephone number of the person designated by the issuer to respond to inquiries about the blackout period, or, in the absence of such a designation, the issuer's human resources director or person performing equivalent functions.\n\n(2) (i) Notice to an affected director or executive officer will be considered timely if the notice described in paragraph (b)(1) of this section is provided (in graphic form that is reasonably accessible to the recipient):\n\n(A) No later than five business days after the issuer receives the notice required by section 101(i)(2)(E) of the Employment Retirement Income Security Act of 1974 (29 U.S.C. 1021(i)(2)(E)); or\n\n(B) If no such notice is received by the issuer, a date that is at least 15 calendar days before the actual or expected beginning date of the blackout period.\n\n(ii) Notwithstanding paragraph (b)(2)(i) of this section, the requirement to give advance notice will not apply in any case in which the inability to provide advance notice of the blackout period is due to events that were unforeseeable to, or circumstances that were beyond the reasonable control of, the issuer, and the issuer reasonably so determines in writing. Determinations described in the preceding sentence must be dated and signed by an authorized representative of the issuer. In any case in which this exception to the advance notice requirement applies, the issuer must provide the notice described in paragraph (b)(1) of this section, as well as a copy of the written determination, to all affected directors and executive officers as soon as reasonably practicable.\n\n(iii) If there is a subsequent change in the beginning or ending dates of the blackout period as provided in the notice to directors and executive officers under paragraph (b)(2)(i) of this section, an issuer must provide directors and executive officers with an updated notice explaining the reasons for the change in the date or dates and identifying all material changes in the information contained in the prior notice. The updated notice is required to be provided as soon as reasonably practicable, unless such notice in advance of the termination of a blackout period is impracticable.\n\n(3) Notice to the Commission will be considered timely if:\n\n(i) The issuer, except as provided in paragraph (b)(3)(ii) of this section, files a current report on Form 8-K (\u00a7 249.308 of this chapter) within the time prescribed for filing the report under the instructions for the form; or\n\n(ii) In the case of a foreign private issuer (as defined in \u00a7 240.3b-4(c) of this chapter), the issuer includes the information set forth in paragraph (b)(1) of this section in the first annual report on Form 20-F (\u00a7 249.220f of this chapter) or 40-F (\u00a7 249.240f of this chapter) required to be filed after the receipt of the notice of a blackout period required by 29 CFR 2520.101-3(c) within the time prescribed for filing the report under the instructions for the form or in an earlier filed report on Form 6-K (\u00a7 249.306).\n\n(iii) If there is a subsequent change in the beginning or ending dates of the blackout period as provided in the notice to the Commission under paragraph (b)(3)(i) of this section, an issuer must file a current report on Form 8-K containing the updated beginning or ending dates of the blackout period, explaining the reasons for the change in the date or dates and identifying all material changes in the information contained in the prior report. The updated notice is required to be provided as soon as reasonably practicable."], ["24:24:2.1.1.2.21.1.211.1", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "A", "Subpart A\u2014General Provisions", "", "\u00a7 245.5 Purpose.", "HUD", "", "", "[50 FR 32402, Aug. 12, 1985]", "The purpose of this part is to recognize the importance and benefits of cooperation and participation of tenants in creating a suitable living environment in multifamily housing projects and in contributing to the successful operation of such projects, including their good physical condition, proper maintenance, security, energy efficiency, and control of operating costs."], ["24:24:2.1.1.2.21.1.211.2", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "A", "Subpart A\u2014General Provisions", "", "\u00a7 245.10 Applicability of part.", "HUD", "", "", "[61 FR 57961, Nov. 8, 1996, as amended at 65 FR 36280, June 7, 2000; 68 FR 20325, Apr. 24, 2003]", "(a) Except as otherwise expressly limited in this section, this part applies in its entirety to a mortgagor of any multifamily housing project that meets the following\u2014\n\n(1)  Project subject to HUD insured or held mortgage under the National Housing Act.  The project has a mortgage that\u2014\n\n(i) Has received final endorsement on behalf of the Secretary and is insured or held by the Secretary under the National Housing Act (12 U.S.C. 1701\u20141715z-20); and\n\n(ii) Is assisted under:\n\n(A) Section 236 of the National Housing Act (12 U.S.C. 1715z-1);\n\n(B) The Section 221(d)(3) BMIR Program;\n\n(C) The Rent Supplement Program;\n\n(D) The Section 8 Loan Management Set-Aside Program following conversion to such assistance from the Rent Supplement Program assistance;\n\n(2)  Formerly HUD-owned project.  The project\u2014\n\n(i) Before being acquired by the Secretary, was assisted under:\n\n(A) Section 236 of the National Housing Act (12 U.S.C. 1715z-1);\n\n(B) The Section 221(d)(3) BMIR Program;\n\n(C) The Rent Supplement Program; or\n\n(D) The Section 8 LMSA Program following conversion to such assistance from assistance under the Rent Supplement Program; and\n\n(ii) Was sold by the Secretary subject to a mortgage insured or held by the Secretary and an agreement to maintain the low- and moderate-income character of the project;\n\n(3)  State or local housing finance agency project.  The project receives assistance under section 236 of the National Housing Act (12 U.S.C. 1715z-1) or the Rent Supplement Program (12 U.S.C. 1701s) administered through a state or local housing finance agency, but does not have a mortgage insured under the National Housing Act or held by the Secretary. Subject to the further limitation in paragraph (b) of this section, only the provisions of subparts A, B and C of this part, and of subpart E of this part for requests for approval of a conversion of a project from project-paid utilities to tenant-paid utilities or of a reduction in tenant utility allowances, apply to a mortgagor of such a project;\n\n(4) The project receives project-based assistance under section 8 of the United States Housing Act of 1937 (this regulation does not cover tenant participation in PHAs that administer such project-based assistance);\n\n(5) The project receives enhanced vouchers under the Low-Income Housing Preservation and Resident Homeownership Act of 1990, the provisions of the Emergency Low Income Housing Preservation Act of 1987, or the Multifamily Assisted Housing Reform and Affordability Act of 1997, as amended;\n\n(6) The project receives assistance under the Section 202 Direct Loan program or the Section 202 Supportive Housing for the Elderly program; or\n\n(7) The project receives assistance under the Section 811 Supportive Housing for Persons with Disabilities program.\n\n(b)  Limitation for cooperative mortgagor.  Only the provisions of subparts A and C of this part apply to a mortgagor of any multifamily housing project described in paragraph (a) of this section if the mortgagor is a cooperative housing corporation or association.\n\n(c)  Definitions.   Rent Supplement Program  means the assistance program authorized by section 101 of the Housing and Urban Development Act of 1965 (12 U.S.C. 1701s).\n\nSection 8 LMSA Program  means the Section 8 Loan Management Set-Aside Program implemented under 24 CFR part 886, subpart A.\n\nSection 221(d)(3) BMIR Program  means the below-market interest rate mortgage insurance program under section 221(d)(3) and the proviso of section 221(d)(5) of the National Housing Act (12 U.S.C. 1715l(d)(3) and 1715l(d)(5))."], ["24:24:2.1.1.2.21.1.211.3", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "A", "Subpart A\u2014General Provisions", "", "\u00a7 245.15 Notice to tenants.", "HUD", "", "", "[50 FR 32402, Aug. 12, 1985, as amended at 61 FR 57961, Nov. 8, 1996]", "(a) Whenever a mortgagor is required under subparts D or E of this part to serve notice on the tenants of a project, the notice must be served by delivery, except, for a high-rise project, the notice may be served either by delivery or by posting. If service is made by delivery, a copy of the notice must be delivered directly to each unit in the project or mailed to each tenant. If service is made by posting, the notice must be posted in at least three conspicuous places within each building in which the affected dwelling units are located and, during any prescribed tenant period, in a conspicuous place at the address stated in the notice where the materials in support of the mortgagor's proposed action are to be made available for inspection and copying. Posted notices must be maintained intact and in legible form during any prescribed notice period.\n\n(b) For purposes of computing time periods following service of notice, service is effected, in the case of service by delivery, when all notices have been delivered or mailed and, in the case of service by posting, when all notices have been initially posted."], ["24:24:2.1.1.2.21.2.211.1", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "B", "Subpart B\u2014Tenant Organizations", "", "\u00a7 245.100 Right of tenants to organize.", "HUD", "", "", "", "The tenants of a multifamily housing project covered under \u00a7 245.10 have the right to establish and operate a tenant organization for the purpose of addressing issues related to their living environment, which includes the terms and conditions of their tenancy as well as activities related to housing and community development."], ["24:24:2.1.1.2.21.2.211.2", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "B", "Subpart B\u2014Tenant Organizations", "", "\u00a7 245.105 Recognition of tenant organizations.", "HUD", "", "", "", "Owners of multifamily housing projects covered under \u00a7 245.10, and their agents, must:\n\n(a) Recognize legitimate tenant organizations; and (b) Give reasonable consideration to concerns raised by legitimate tenant organizations."], ["24:24:2.1.1.2.21.2.211.3", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "B", "Subpart B\u2014Tenant Organizations", "", "\u00a7 245.110 Legitimate tenant organizations.", "HUD", "", "", "", "A tenant organization is legitimate if it has been established by the tenants of a multifamily housing project covered under \u00a7 245.10 for the purpose described in \u00a7 245.100, and meets regularly, operates democratically, is representative of all residents in the development, and is completely independent of owners, management, and their representatives."], ["24:24:2.1.1.2.21.2.211.4", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "B", "Subpart B\u2014Tenant Organizations", "", "\u00a7 245.115 Protected activities.", "HUD", "", "", "", "(a) Owners of multifamily housing projects covered under \u00a7 245.10, and their agents, must allow tenants and tenant organizers to conduct the following activities related to the establishment or operation of a tenant organization:\n\n(1) Distributing leaflets in lobby areas;\n\n(2) Placing leaflets at or under tenants' doors;\n\n(3) Distributing leaflets in common areas;\n\n(4) Initiating contact with tenants;\n\n(5) Conducting door-to-door surveys of tenants to ascertain interest in establishing a tenant organization and to offer information about tenant organizations;\n\n(6) Posting information on bulletin boards;\n\n(7) Assisting tenants to participate in tenant organization activities;\n\n(8) Convening regularly scheduled tenant organization meetings in a space on site and accessible to tenants, in a manner that is fully independent of management representatives. In order to preserve the independence of tenant organizations, management representatives may not attend such meetings unless invited by the tenant organization to specific meetings to discuss a specific issue or issues; and\n\n(9) Formulating responses to owner's requests for:\n\n(i) Rent increases;\n\n(ii) Partial payment of claims;\n\n(iii) The conversion from project-based paid utilities to tenant-paid utilities;\n\n(iv) A reduction in tenant utility allowances;\n\n(v) Converting residential units to non-residential use, cooperative housing, or condominiums;\n\n(vi) Major capital additions; and\n\n(vii) Prepayment of loans.\n\n(b) In addition to the activities listed in paragraph (a) of this section, owners of multifamily housing projects covered under \u00a7 245.10, and their agents, must allow tenants and tenant organizers to conduct other reasonable activities related to the establishment or operation of a tenant organization.\n\n(c) Owners of multifamily housing projects and their agents shall not require tenants and tenant organizers to obtain prior permission before engaging in the activities permitted under paragraphs (a) and (b) of this section."], ["24:24:2.1.1.2.21.2.211.5", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "B", "Subpart B\u2014Tenant Organizations", "", "\u00a7 245.120 Meeting space.", "HUD", "", "", "", "(a) Owners of multifamily housing projects covered under \u00a7 245.10, and their agents, must reasonably make available the use of any community room or other available space appropriate for meetings that is part of the multifamily housing project when requested by:\n\n(1) Tenants or a tenant organization and used for activities related to the operation of the tenant organization; or\n\n(2) Tenants seeking to establish a tenant organization or collectively address issues related to their living environment.\n\n(b) Tenant and tenant organization meetings must be accessible to persons with disabilities, unless this is impractical for reasons beyond the organization's control. If the complex has an accessible common area or areas, it will not be impractical to make organizational meetings accessible to persons with disabilities.\n\n(c)  Fees.  An owner of a multifamily housing project covered under \u00a7 245.10 may charge a reasonable, customary and usual fee, approved by the Secretary as may normally be imposed for the use of such facilities in accordance with procedures prescribed by the Secretary, for the use of meeting space. An owner may waive this fee."], ["24:24:2.1.1.2.21.2.211.6", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "B", "Subpart B\u2014Tenant Organizations", "", "\u00a7 245.125 Tenant organizers.", "HUD", "", "", "", "(a) A tenant organizer is a tenant or non-tenant who assists tenants in establishing and operating a tenant organization, and who is not an employee or representative of current or prospective owners, managers, or their agents.\n\n(b) Owners of multifamily housing projects covered under \u00a7 245.10, and their agents, must allow tenant organizers to assist tenants in establishing and operating tenant organizations.\n\n(c)  Non-tenant tenant organizers.  (1) If a multifamily housing project covered under \u00a7 245.10 has a consistently enforced, written policy against canvassing, then a non-tenant tenant organizer must be accompanied by a tenant while on the property of the multifamily housing project, except in the case of recipients of HUD Outreach and Assistance Training Grants (\u201cOTAG\u201d) or other direct HUD grants designed to enable recipients to provide education and outreach to tenants concerning HUD's mark-to-market program (see 24 CFR parts 401 and 402), who are conducting eligible activities as defined in the applicable Notice of Funding Availability for the grant or other effective grant document.\n\n(2) If a multifamily housing project covered under \u00a7 245.10 has a written policy favoring canvassing, any non-tenant tenant organizer must be afforded the same privileges and rights of access as other uninvited outside parties in the normal course of operations. If the project does not have a consistently enforced, written policy against canvassing, the project shall be treated as if it has a policy favoring canvassing."], ["24:24:2.1.1.2.21.2.211.7", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "B", "Subpart B\u2014Tenant Organizations", "", "\u00a7 245.130 Tenants' rights not to be re-canvassed.", "HUD", "", "", "", "A tenant has the right not to be re-canvassed against his or her wishes regarding participation in a tenant organization."], ["24:24:2.1.1.2.21.2.211.8", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "B", "Subpart B\u2014Tenant Organizations", "", "\u00a7 245.135 Enforcement.", "HUD", "", "", "[72 FR 73495, Dec. 27, 2007]", "(a) Owners of housing identified in \u00a7 245.10, and their agents, as well as any principals thereof (as defined in 2 CFR part 2424), who violate any provision of this subpart so as to interfere with the organizational and participatory rights of tenants, may be liable for sanctions under 2 CFR part 2424. Such sanctions may include:\n\n(1)  Debarment.  A person who is debarred is prohibited from future participation in federal programs for a period of time. The specific rules and regulations relating to debarment are found at 2 CFR part 2424.\n\n(2)  Suspension.  Suspension is a temporary action with the same effect as debarment, to be taken when there is adequate evidence that a cause for debarment may exist and immediate action is needed to protect the public interest. The specific rules and regulations relating to suspension are found at 2 CFR part 2424.\n\n(3)  Limited Denial of Participation.  An LDP generally excludes a person from future participation in the federal program under which the cause arose. The duration of an LDP is generally up to 12 months. The specific rules and regulations relating to LDPs are found at 2 CFR part 2424, subpart J.\n\n(b) These sanctions may also apply to affiliates (as defined in 2 CFR part 2424) of these persons or entities.\n\n(c) The procedures in 2 CFR part 2424 shall apply to actions under this subpart."], ["24:24:2.1.1.2.21.3.211.1", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "C", "Subpart C\u2014Efforts To Obtain Assistance", "", "\u00a7 245.205 Efforts to obtain assistance.", "HUD", "", "", "[48 FR 28437, June 22, 1983. Redesignated at 50 FR 32403, Aug. 12, 1985, as amended at 61 FR 57961, Nov. 8, 1996]", "(a) Mortgagors subject to the requirements of this subpart shall not interfere with the efforts of tenants to obtain rent subsidies or other public assistance.\n\n(b) A mortgagor subject to the requirements of this subpart who is a party to a rent supplement contract under section 101 of the Housing and Urban Development Act of 1965 (12 U.S.C. 1701s), a rental assistance payments contract under part 236, subpart D, of this chapter, or a Housing Assistance Payments Contract under 24 CFR part 886 shall not refuse to make assistance under such contract available to an existing tenant who is eligible therefor, provided that sufficient contract and budget authority and contract units are available under the contract. However, this provision shall not be deemed to require the mortgagor to give priority in the allocation of any such available assistance to an existing tenant instead of an eligible applicant on the mortgagor's waiting list or otherwise to supersede tenant selection procedures which are not otherwise inconsistent with applicable program regulation or instructions.\n\n(c) Subject to the provisions of any contract made in connection with the purchase of a multifamily housing project owned by the Secretary, this section shall not be deemed to require a mortgagor subject to the requirement of this subpart to enter into a Housing Assistance Payments Contract pursuant to 24 CFR part 982 for the benefit of an existing tenant who obtains a Certificate of Family Participation."], ["24:24:2.1.1.2.21.3.211.2", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "C", "Subpart C\u2014Efforts To Obtain Assistance", "", "\u00a7 245.210 Availability of information.", "HUD", "", "", "[48 FR 28437, June 22, 1983. Redesignated at 50 FR 32403, Aug. 12, 1985]", "A mortgagor subject to the requirements of this subpart shall make available to tenants any information concerning rent subsidies or other public assistance that is prepared and distributed by HUD to the project for the purpose of distribution to tenants."], ["24:24:2.1.1.2.21.4.211.1", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "D", "Subpart D\u2014Procedures for Requesting Approval of an Increase in Maximum Permissible Rents", "", "\u00a7 245.305 Applicability of subpart.", "HUD", "", "", "", "(a) The requirements of this subpart apply to any request by a mortgagor, as provided by \u00a7 245.10, for HUD approval of an increase in maximum permissible rents.\n\n(b) For purposes of this subpart, an increase in utility charges paid directly by the tenant does not constitute an increase in rents."], ["24:24:2.1.1.2.21.4.211.2", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "D", "Subpart D\u2014Procedures for Requesting Approval of an Increase in Maximum Permissible Rents", "", "\u00a7 245.310 Notice to tenants.", "HUD", "", "", "", "(a) At least 30 days before submitting a request to HUD for approval of an increase in maximum permissible rents, the mortgagor must notify the tenants of the proposed rent increase. Copies of the notice must be served on the tenants as provided in \u00a7 245.15. The notice must contain the following information in the following format or an equivalent format:\n\nNotice to Tenants of Intention To Submit a Request to HUD for Approval of an Increase in Maximum Permissible Rents\n \n \n \n Date of Notice\n \n Take notice that on [date] we plan to submit a request for approval of an increase in the maximum permissible rents for [name of apartment complex] to the United States Department of Housing and Urban Development (HUD). The proposed increase is needed for the following reasons:\n \n 1.\n \n 2.\n \n 3.\n \n The rent increases for which we have requested approval are:\n \n Bedrooms\n Present\n  rent \n 1 \n Proposed\n  increase \n 1 \n Proposed\n  rent \n 1 \n Basic\n Market\n Basic\n Market\n Basic\n Market\n 5 $ $ $ $  $\n 0       1       2       3       4       \n 1  Separate columns for basic and market rent should be used only for projects assisted under sec. 236 of the National Housing Act. In addition, in projects with more than 1 type of apartment having the same number of bedroom but different rents, each type should be listed separately. \n A copy of the materials that we are submitting to HUD in support of our request will be available during normal business hours at [address] for a period of 30 days from the date of service of this notice for inspection and copying by tenants of [name of apartment complex] and, if the tenants wish, by legal or other representatives acting for them individually or as a group.\n \n During a period of 30 days from the date of service of this notice, tenants of [name of apartment complex] may submit written comments on the proposed rent increase to us at [address]. Tenant representatives may assist tenants in preparing those comments. (If, at HUD's request or otherwise , we make any material change during the comment period in the materials available for inspection and copying, we will notify the tenants of the change or changes, and the tenants will have a period of 15 days from the date of service of this additional notice (or the remainder of any applicable comment period, if longer) in which to inspect and copy the materials as changed and to submit comments on the proposed rent increase). These comments will be transmitted to HUD, along with our evaluation of them and our request for the increase. You may also send a copy of your comments directly to HUD at the following address: United States Department of Housing and Urban Development [address of local HUD field office with jurisdiction over rent increases for the project], Attention: Director, Housing Management Division, Re: Project No. [Name of Apartment Complex]. \n \n HUD will approve, adjust upward or downward, or disapprove the proposed rent increase upon reviewing the request and comments. When HUD advises us in writing of its decision on our request, you will be notified. If the request is approved, any allowable increase will be put into effect only after a period of at least 30 days from the date you are served with that notice and in accordance with the terms of existing leases.\n \n \n \n [Name of mortgagor or managing agent]\n\nDate of Notice\n\nTake notice that on [date] we plan to submit a request for approval of an increase in the maximum permissible rents for [name of apartment complex] to the United States Department of Housing and Urban Development (HUD). The proposed increase is needed for the following reasons:\n\n1.\n\n2.\n\n3.\n\nThe rent increases for which we have requested approval are:\n\n1  Separate columns for basic and market rent should be used only for projects assisted under sec. 236 of the National Housing Act. In addition, in projects with more than 1 type of apartment having the same number of bedroom but different rents, each type should be listed separately.\n\nA copy of the materials that we are submitting to HUD in support of our request will be available during normal business hours at [address] for a period of 30 days from the date of service of this notice for inspection and copying by tenants of [name of apartment complex] and, if the tenants wish, by legal or other representatives acting for them individually or as a group.\n\nDuring a period of 30 days from the date of service of this notice, tenants of [name of apartment complex] may submit written comments on the proposed rent increase to us at [address]. Tenant representatives may assist tenants in preparing those comments. (If, at HUD's request or otherwise , we make any material change during the comment period in the materials available for inspection and copying, we will notify the tenants of the change or changes, and the tenants will have a period of 15 days from the date of service of this additional notice (or the remainder of any applicable comment period, if longer) in which to inspect and copy the materials as changed and to submit comments on the proposed rent increase). These comments will be transmitted to HUD, along with our evaluation of them and our request for the increase. You may also send a copy of your comments directly to HUD at the following address: United States Department of Housing and Urban Development [address of local HUD field office with jurisdiction over rent increases for the project], Attention: Director, Housing Management Division, Re: Project No. [Name of Apartment Complex].\n\nHUD will approve, adjust upward or downward, or disapprove the proposed rent increase upon reviewing the request and comments. When HUD advises us in writing of its decision on our request, you will be notified. If the request is approved, any allowable increase will be put into effect only after a period of at least 30 days from the date you are served with that notice and in accordance with the terms of existing leases.\n\n[Name of mortgagor or managing agent]\n\n(b) The mortgagor must comply with all representations made in the notice. The materials to be made available to tenants for inspection and copying are those specified in \u00a7 245.315."], ["24:24:2.1.1.2.21.4.211.3", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "D", "Subpart D\u2014Procedures for Requesting Approval of an Increase in Maximum Permissible Rents", "", "\u00a7 245.315 Materials to be submitted to HUD.", "HUD", "", "", "", "When the notice referred to in \u00a7 245.310 is served on the tenants, the mortgagor must send to the local HUD office copies of the following documents described in either paragraph (a) or (b) of this section, as specified by the local HUD office:\n\n(a) Documents to be submitted under profit and loss approach:\n\n(1) A copy of the notice to tenants;\n\n(2) An annual Statement of Profit and Loss, Form HUD-92410, covering the project's most recently ended accounting year (this statement must have been audited by an independent public accountant if the project is required by HUD to prepare audited financial statements), and Form HUD-92410 for the intervening period since the date of the last annual statement if more than four months have elapsed since that date;\n\n(3) A narrative statement of the reasons for the requested increase in maximum permissible rents; and\n\n(4) An estimate of the reasonably anticipated increases in project operating costs that will occur within twelve months of the date of submission of materials under this section.\n\n(5) A status report on the project's implementation of its current Energy Conservation Plan.\n\n(b) Documents to be submitted under the forward-budget approach:\n\n(1) A cover letter summarizing the reasons a rent increase is needed;\n\n(2) A copy of the notice to tenants;\n\n(3) A rent increase worksheet providing an income and expense budget for the 12 months following the anticipated effective date of the proposed rent increase;\n\n(4) A brief statement explaining the basis for the expense lines on the rent increase worksheet;\n\n(5) A partially completed Rent Schedule, Form HUD-92458;\n\n(6) If the tenants receive utility allowances, the mortgagor's recommended utility allowance for each unit type and brief statement explaining the basis for the recommended increase; and\n\n(7) A status report on the project's implementation of its current Energy Conservation Plan."], ["24:24:2.1.1.2.21.4.211.4", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "D", "Subpart D\u2014Procedures for Requesting Approval of an Increase in Maximum Permissible Rents", "", "\u00a7 245.320 Request for increase.", "HUD", "", "", "", "Upon expiration of the period for tenant comments required in the notice format in \u00a7 245.310 and after review of the comments submitted to the mortgagor, the mortgagor must submit to the local HUD office, in addition to the materials enumerated in \u00a7 245.315 and any revisions thereto, the request for an increase in the maximum permissible rents, together with the following:\n\n(a) Copies of all written comments submitted by the tenants to the mortgagor;\n\n(b) The mortgagor's evaluation of the tenants' comments with respect to the request;\n\n(c) A certification by the mortgagor that:\n\n(1) It has complied with all of the requirements of this subpart;\n\n(2) The copies of the materials submitted in support of the proposed increase were located in a place reasonably convenient to tenants in the project during normal business hours and that requests by tenants to inspect the materials, as provided for in the notice, were honored;\n\n(3) All comments received from tenants were considered by the mortgagor in making its evaluation; and\n\n(4) Under the penalties and provisions of title 18 U.S.C., section 1001, the statements contained in this request and its attachments have been examined by me and, to the best of my knowledge and belief, are true, correct, and complete."], ["24:24:2.1.1.2.21.4.211.5", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "D", "Subpart D\u2014Procedures for Requesting Approval of an Increase in Maximum Permissible Rents", "", "\u00a7 245.325 Notification of action on request for increase.", "HUD", "", "", "", "(a) When processing a request for an increase in maximum permissible rents, HUD shall take into consideration reasonably anticipated increases in project operating costs that will occur (1) within 12 months of the date of submission of materials to HUD under \u00a7 245.315(a) (profit and loss approach) or (2) within 12 months of the anticipated effective date of the proposed rent increase for submissions under \u00a7 245.315(b) (forward-budget approach).\n\n(b) After HUD has considered the request for an increase in rents, has found that it meets the requirements of \u00a7 245.320, and has made its determination to approve, adjust upward or downward, or disapprove the request, it will furnish the mortgagor with a written statement of the reasons for approval, adjustment upward or downward, or disapproval. The mortgagor must make the reasons for approval, adjustment, or disapproval known to the tenants, by service of notice on them as provided in \u00a7 245.15."], ["24:24:2.1.1.2.21.4.211.6", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "D", "Subpart D\u2014Procedures for Requesting Approval of an Increase in Maximum Permissible Rents", "", "\u00a7 245.330 Non-insured projects.", "HUD", "", "", "", "(a) In the case of a proposed rent increase for a project assisted under section 236 of the National Housing Act or section 101 of the Housing and Urban Development Act of 1965, but which does not have a mortgage insured by HUD or held by the Secretary, the provisions of this section and of \u00a7\u00a7 245.305 through 245.320 shall apply to the mortgagor (project owner), except that\u2014\n\n(1) The notice format prescribed in \u00a7 245.310 must be modified to reflect the procedural changes made by this section;\n\n(2) The material (including tenant comments) required to be submitted to HUD under \u00a7\u00a7 245.315 and 245.320 must be submitted to the State or local agency administering the section 236 assistance or rent supplement assistance contracts, rather than to HUD. An equivalent State or local agency form or standard accounting form may be substituted for the Statement of Profit and Loss, Form HUD-92410 required under \u00a7 245.315(a)(2), if approved by the local HUD office; and\n\n(3) The State or local agency must certify that the mortgagor has complied with the requirements of \u00a7\u00a7 245.310, 245.315, 245.320, and 245.325.\n\n(b) After the State or local agency has considered the request for an increase in maximum permissible rents that meets the requirements of \u00a7 245.320 (including consideration of anticipated cost increases, as provided in \u00a7 245.325(a)), it must make a determination to approve, adjust upward or downward, or disapprove the request. If the agency determines to approve or adjust the request, it must submit to the appropriate local HUD office the mortgagor's requests for approval of an increase in maximum permissible rents, along with the comments of the tenants and the mortgagor's evaluation of the comments, and must certify to HUD that the mortgagor is in compliance with the requirements of this subpart. HUD shall review the agency's determination and certification and, within 30 days, of their submission to HUD, notify the agency of its approval, adjustment upward or downward, or disapproval of the proposed rent increase. HUD will not unreasonably withhold approval of a rent increase approved by the State or local agency.\n\n(c) If the agency determines to disapprove the request, there is no HUD review of the agency's determination.\n\n(d) The agency must notify the mortgagor of the final disposition of the request, and it must furnish the mortgagor with a written statement of the reasons for its approval, adjustment, or disapproval. The mortgagor must make the reasons for approval, adjustment or disapproval known to the tenants, by service of notice on them as provided in \u00a7 245.15."], ["24:24:2.1.1.2.21.5.211.1", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "E", "Subpart E\u2014Procedures for Requesting Approval of a Covered Action", "", "\u00a7 245.405 Applicability of subpart.", "HUD", "", "", "", "The requirements of this subpart apply to any request by a mortgagor, as provided by \u00a7 245.10, for HUD approval of one or more of the following covered actions:\n\n(a) Conversion of a project from project-paid utilities to tenant-paid utilities, or a reduction in tenant utility allowances.\n\n(b) Conversion of residential units in a multifamily housing project to a nonresidential use or to condominiums, or the transfer of the project to a cooperative housing mortgagor corporation or association. Conversion of a project to a cooperative or of a portion of a project to nonresidential use does not constitute a change of use requiring mortgagee approval.\n\n(c) A partial release of mortgage security. The requirements of this subpart, however, do not apply to any release of property from a mortgage lien with respect to a utility easement or a public taking of such property by condemnation or eminent domain.\n\n(d) Making major capital additions to the project. For the purposes of this subpart, the term \u201cmajor capital additions\u201d includes only those capital improvements that represent a substantial addition to the project. Upgrading or replacing existing capital components of the project does not constitute a major capital addition to the project."], ["24:24:2.1.1.2.21.5.211.10", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "E", "Subpart E\u2014Procedures for Requesting Approval of a Covered Action", "", "\u00a7 245.430 Decision on request for approval.", "HUD", "", "", "", "(a) After considering the mortgagor's request for approval and the materials submitted in connection with the request, HUD must notify the mortgagor in writing of its approval or disapproval of the proposed covered action, including, if applicable, its adjustment upward or downward of the proposed reduction in tenant-paid utilities. HUD must provide its reasons for its determination.\n\n(b) The mortgagor must notify the tenants of HUD's decision in the manner provided in \u00a7 245.15. If HUD has approved the proposed covered action, the notice must state:\n\n(1) The effective date of the covered action (which must be at least 30 days from the date of service of the notice and in accordance with the terms of existing leases);\n\n(2) In the case of HUD's approval of a conversion from project-paid utilities to tenant-paid utilities or a reduction in tenant utility allowances, the amount of the rent to be paid to the mortgagor and the utility allowance for each unit; and\n\n(3) In the case of HUD's approval of a conversion of residential units in a multifamily housing project to a nonresidential use or the transfer of the project to a cooperative housing mortgagor corporation or association, which residential rental units are to be converted and whether the conversion is to nonresidential use or to cooperative or condominium units."], ["24:24:2.1.1.2.21.5.211.11", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "E", "Subpart E\u2014Procedures for Requesting Approval of a Covered Action", "", "\u00a7 245.435 Non-insured projects: Conversion from project-paid utilities to tenant-paid utilities or a reduction in tenant utility allowances.", "HUD", "", "", "", "(a) In the case of a proposed conversion from project-paid utilities to tenant-paid utilities or a reduction in tenant utility allowances involving a project that is assisted under section 236 of the National Housing Act (12 U.S.C. 1715z-1) or section 101 of the Housing and Urban Development Act of 1965 (12 U.S.C. 1701s) but that does not have a mortgage insured by HUD or held by the Secretary, the provisions of this section and of \u00a7\u00a7 245.405 through 245.425 apply to the mortgagor (project owner), except that\u2014\n\n(1) The notice to tenants required under \u00a7 245.410 must be modified to reflect the procedural changes made by this section;\n\n(2) The materials (including tenant comments) required to be submitted to HUD under \u00a7\u00a7 245.415 and 245.425 must be submitted to the State or local agency administering the Section 236 assistance or rent supplement assistance contracts, rather than to HUD; and\n\n(3) The State or local agency must certify that the mortgagor has complied with the requirements of \u00a7\u00a7 245.410, 245.415, 245.416, 245.420, and 245.425.\n\n(b) After the State or local agency has considered the request for approval of a conversion or reduction that meets the requirements of \u00a7 245.425, it must make a determination to approve or disapprove the conversion, or to approve, adjust upward or downward, or disapprove the reduction. If the agency determines to approve the conversion or reduction (as originally proposed or as adjusted), it must submit to the appropriate local HUD office the mortgagor's request for approval of the conversion or reduction, along with the comments of the tenants and the mortgagor's evaluation of the comments, and must certify to HUD that the mortgagor is in compliance with the requirements of this subpart. HUD must review the agency's determination and certification and notify the agency of its approval or disapproval of the proposed conversion or of its approval, adjustment upward or downward, or disapproval of the proposed reduction. HUD will not unreasonably withhold approval of a conversion or reduction approved by the State or local agency.\n\n(c) If the agency determines to disapprove the conversion or reduction, there is no HUD review of the agency's determination.\n\n(d) The agency must notify the mortgagor of the final disposition of the request, and it must furnish the mortgagor with a written statement of the reasons for its approval or disapproval. The mortgagor must make the reasons for approval or disapproval known to the tenants, by service of notice on them as provided in \u00a7 245.15. If the agency has approved the proposed conversion or a reduction, the notice must set forth the information prescribed in \u00a7 245.430(b) (1) and (2)."], ["24:24:2.1.1.2.21.5.211.2", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "E", "Subpart E\u2014Procedures for Requesting Approval of a Covered Action", "", "\u00a7 245.410 Notice to tenants.", "HUD", "", "", "", "At least 30 days before submitting a request to HUD for approval of an action described in \u00a7 245.405, the mortgagor must serve notice of the proposed covered action on the project tenants, as provided in \u00a7 245.15. The notice shall state that\u2014\n\n(a) The mortgagor intends to submit a request to HUD for approval of the covered action or actions specified in the notice;\n\n(b) The tenants have the right to participate as provided in \u00a7 245.420, and what those rights are, including the address at which the materials required to be made available for inspection and copying under that section are to be kept;\n\n(c) Tenant comments on the proposed covered action may be sent to the mortgagor at a specified address or directly to the local HUD office, and comments sent to the mortgagor will be transmitted to HUD, along with the mortgagor's evaluation of them, when the request for HUD's approval is submitted;\n\n(d) HUD will approve or disapprove the proposed action, based upon its review of the information submitted and all tenant comments received. In the case of a proposed reduction in tenant-paid utilities, the notice must also state that HUD may adjust the proposed reduction upward or downward;\n\n(e) In the case of a proposed conversion of residential units, partial release of mortgage security, or major capital additions to the project, the proposed action may require the owner to request HUD approval of a rent increase; and\n\n(f) The mortgagor will notify the tenants of HUD's decision and it will not begin to effect any approved action (in accordance with the terms of existing leases) until at least 30 days from the date of service of the notification."], ["24:24:2.1.1.2.21.5.211.3", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "E", "Subpart E\u2014Procedures for Requesting Approval of a Covered Action", "", "\u00a7 245.415 Submission of materials to HUD: Timing of submission.", "HUD", "", "", "", "(a)  Initial submission.  The mortgagor must submit the materials applicable to the covered action, as specified in \u00a7\u00a7 245.416 through 245.419, to the local HUD office when the notice required under \u00a7 245.410 is served on the tenants.\n\n(b)  Subsequent submission.  If additional notice under \u00a7 245.420(c) is required, the mortgagor must submit to HUD any changes to the materials required under \u00a7\u00a7 245.416 through 245.419 when the notice required under \u00a7 245.420(c) is served on the tenants."], ["24:24:2.1.1.2.21.5.211.4", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "E", "Subpart E\u2014Procedures for Requesting Approval of a Covered Action", "", "\u00a7 245.416 Initial submission of materials to HUD: Conversion from project-paid utilities to tenant-paid utilities or a reduction in tenant utility allowances.", "HUD", "", "", "", "In the case of a conversion from project-paid utilities to tenant-paid utilities or a reduction in tenant utility allowances, the mortgagor must submit the following materials to the local HUD office:\n\n(a) A copy of the notice to tenants;\n\n(b) In the case of a proposed conversion from project-paid utilities to tenant-paid utilities\u2014\n\n(1) A statement indicating:\n\n(i) The type of utility or utilities involved;\n\n(ii) The number of units in the project by type and size;\n\n(iii) The average utility consumption data by unit type and size for comparable projects, and utility rate information, as obtained from the utility supplier;\n\n(iv) The estimated monthly cost of the utilities to be paid by the tenants by unit type and size, based upon the consumption data and rate information described in paragraph (b)(1)(iii) of this section;\n\n(v) The monthly cost for the past year of paying for the utility or utilities involved on a project basis (actual cost) and by unit type and size (estimated breakdown);\n\n(vi) An estimate of the cost of conversion, as obtained from the utility supplier or from bids from contractors;\n\n(vii) The source and terms of financing for the conversion (to the extent known); and\n\n(viii) The estimated effect of the conversion on the total housing costs of the tenants by unit type and size, taking into account the estimated cost of conversion (including the cost of its financing), the estimated monthly cost of utilities to be paid by the tenants by unit type and size, the proposed utility allowances, and the estimated change in the rents paid to the mortgagor resulting from the conversion; and\n\n(2) A copy of the portion of the project's Energy Conservation Plan which addresses the cost-effectiveness determination associated with converting the project to tenant-paid utilities; and\n\n(c) In the case of a proposed reduction in tenant utility allowances, a statement indicating the information described in paragraphs (b)(1)(i), (b)(1)(ii), (b)(1)(iii) and (b)(1)(iv) of this section, the utility allowances proposed for reduction, and a justification of the proposed reduction."], ["24:24:2.1.1.2.21.5.211.5", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "E", "Subpart E\u2014Procedures for Requesting Approval of a Covered Action", "", "\u00a7 245.417 Initial submission of materials to HUD: Conversion of residential units to a nonresidential use, or to cooperative housing or condominiums.", "HUD", "", "", "", "In the case of a conversion of residential units to a nonresidential use, or to cooperative housing or condominiums, the mortgagor must submit the following materials to the local HUD office in accordance with \u00a7\u00a7 245.415 and 245.419:\n\n(a) In the case of a proposed conversion of residential rental units to nonresidential use:\n\n(1) A statement describing the proposed conversion;\n\n(2) A statement describing the estimated effect of the proposed conversion on the value of the project, the project rent schedule, the number of dwelling units in the project, a list of the units to be converted and their occupancy, the amount of subsidy available to the project, and the project income and expenses (including property taxes);\n\n(3) A statement assessing the compatibility of the proposed nonresidential use with the residential character of the project;\n\n(4) Written approval of the mortgagee if required;\n\n(5) An undertaking by the mortgagor to pay all relocation costs that may be required by HUD for tenants required to vacate the project because of the conversion; and\n\n(6) A copy of the notice to tenants.\n\n(b) In the case of a proposed transfer of the project to a cooperative housing mortgagor corporation or association (conversion of residential rental units to residential cooperative housing), the materials specified in paragraphs (a)(1), (a)(2) and (a)(3) of this section and the following additional materials:\n\n(1) An estimate of the demand for cooperative housing, including an estimate of the number of present tenants interested in purchasing cooperative housing;\n\n(2) Estimates of downpayments and monthly carrying charges that will be required; and\n\n(3) Copies of proposed organizational documents, including By-Laws, Articles of Incorporation, Subscription Agreement, Occupancy Agreement, and Sale Document.\n\n(c) In the case of a proposed conversion of residential rental units to condominium units, the materials specified in paragraphs (a)(1), (a)(4), and (a)(6) of this section and the following additional materials:\n\n(1) An estimate of the demand for condominium housing, including an estimate of the number of present tenants interested in purchasing units;\n\n(2) Estimates of downpayments, monthly mortgage payments and condominium association fees that will be required; and\n\n(3) A list of the units to be converted and their occupancy."], ["24:24:2.1.1.2.21.5.211.6", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "E", "Subpart E\u2014Procedures for Requesting Approval of a Covered Action", "", "\u00a7 245.418 Initial submission of materials to HUD: Partial release of mortgage security.", "HUD", "", "", "", "In the case of a partial release of mortgage security, the mortgagor must submit the following materials to the local HUD office:\n\n(a) A statement describing the portion of the property that is proposed to be released and the transaction requiring the release;\n\n(b) A statement describing the estimated effect of the proposed release on the value of the project, the number of dwelling units in the project, the project income and expenses (including property taxes), the amount of subsidy available to the project, and the project rent schedule;\n\n(c) A statement describing the proposed use of the property to be released and the persons who will have responsibility for the operation and maintenance of that property, and assessing the compatibility of that use with the residential character of the project;\n\n(d) A statement describing the proposed use of any proceeds to be received by the mortgagor as a result of the release; and\n\n(e) A copy of the notice to tenants."], ["24:24:2.1.1.2.21.5.211.7", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "E", "Subpart E\u2014Procedures for Requesting Approval of a Covered Action", "", "\u00a7 245.419 Initial submission of materials to HUD: Major capital additions.", "HUD", "", "", "", "In the case of major capital additions, the mortgagor must submit the following materials to the local HUD office:\n\n(a) The general plans and sketches of the proposed capital additions;\n\n(b) A statement describing the estimated effect of the proposed capital additions on the value of the project, the project income and expenses (including property taxes), and the project rent schedule;\n\n(c) A statement describing how the proposed capital additions will be financed and the effect, if any, of that financing on the tenants;\n\n(d) A statement assessing the compatibility of the proposed capital additions with the residential character of the project; and\n\n(e) A copy of the notice to tenants."], ["24:24:2.1.1.2.21.5.211.8", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "E", "Subpart E\u2014Procedures for Requesting Approval of a Covered Action", "", "\u00a7 245.420 Rights of tenants to participate.", "HUD", "", "", "", "(a) The tenants (including any legal or other representatives acting for tenants individually or as a group) must have the right to inspect and copy the materials that the mortgagor is required to submit to HUD pursuant to \u00a7 245.415, for a period of 30 days from the date on which the notice required under \u00a7 245.410 is served on the tenants. During this period, the mortgagor must provide a place (as specified in the notice) reasonably convenient to tenants in the project where tenants and their representatives can inspect and copy these materials during normal business hours.\n\n(b) The tenants have the right during this period to submit written comments on the proposed conversion to the mortgagor and to the local HUD office. Tenant representatives may assist tenants in preparing these comments.\n\n(c) If the mortgagor, whether at HUD's request or otherwise, makes any material change during a tenant comment period in the materials submitted to HUD pursuant to \u00a7 245.415, the mortgagor must notify the tenants of the change, in the manner provided in \u00a7 245.15, and make the materials as changed available for inspection and copying at the address specified in the notice for this purpose. The tenants have a period of 15 days from the date of service of this additional notice (or the remainder of any applicable comment period, if longer) in which to inspect and copy the materials as changed and to submit comments on the proposed covered action, before the mortgagor may submit its request to HUD for approval of the covered action."], ["24:24:2.1.1.2.21.5.211.9", 24, "Housing and Urban Development", "II", "B", "245", "PART 245\u2014TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS", "E", "Subpart E\u2014Procedures for Requesting Approval of a Covered Action", "", "\u00a7 245.425 Submission of request for approval to HUD.", "HUD", "", "", "", "Upon completion of the tenant comment period, the mortgagor must review the comments submitted by tenants and their representatives and prepare a written evaluation of the comments. The mortgagor must then submit the following materials to the local HUD office:\n\n(a) The mortgagor's written request for HUD approval of the covered action;\n\n(b) Copies of all written tenant comments;\n\n(c) The mortgagor's evaluation of the tenant comments on the proposed conversion or reduction;\n\n(d) A certification by the mortgagor that it has complied with all of the requirements of \u00a7 245.410, \u00a7 245.415, \u00a7\u00a7 245.416 through 245.419, as applicable, \u00a7 245.420, and this section; and\n\n(e) Such additional materials as HUD may have specified in writing."], ["33:33:3.0.1.1.13.0.1.1", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.1 Purpose.", "USACE", "", "", "", "This part describes administrative procedures and policy used by the Corps of Engineers in exercising its authority for wreck removal. Procedures are intended to insure that the impacts of obstructions are minimized, while recognizing certain rights of owners, operators and lessees."], ["33:33:3.0.1.1.13.0.1.10", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.40 Removal by responsible party.", "USACE", "", "", "", "(a)  Corps monitoring.  If the owner, lessee or operator agrees to remove a hazard to navigation, the District Engineer should ascertain that:\n\n(1) Marking is accomplished promptly and is maintained,\n\n(2) The plan for removal and disposal is reasonable and acceptable to the District Engineer,\n\n(3) Removal operations do not unreasonably interfere with navigation,\n\n(4) All conditions of the Corps of Engineers permit are met, and\n\n(5) Removal operations are pursued diligently.\n\n(b)  Deficiencies.  If the removal actions are not proceeding satisfactorily, the District Engineer will notify the responsible party of the deficiencies and provide a reasonable time for correction. If not corrected promptly, the District Engineer may declare the wreck \u201cabandoned\u201d and proceed with actions toward Corps removal."], ["33:33:3.0.1.1.13.0.1.11", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.45 Abandonment.", "USACE", "", "", "", "(a)  Establishing abandonment.  Abandonment is the surrendering of all rights to a vessel (or similar obstruction) and its cargo by the owner, or owners if vessel and cargo are separately owned. In all cases other than emergency, abandonment will be established as a precondition to Corps removal, to avoid a \u201ctaking\u201d of private property for public purposes. Abandonment is established by either:\n\n(1) Affirmative action on the part of the owner declaring intention to abandon, or\n\n(2) Failure to commence immediate removal of the obstruction and prosecute such removal diligently.\n\n(b)  Owner declaration.  The Corps of Engineers will not \u201caccept\u201d a notice of abandonment. Any notice of abandonment received by the Corps of Engineers will be acknowledged only, and will stand by itself as a declaration. Abandonment by the operator or lessee alone does not constitute abandonment.\n\n(c)  Non-diligence.  The determination of whether removal is commenced immediately and prosecuted diligently will be made by the District Engineer based on the degree of hazard to navigation, the difficulty and complexity of the removal operation, and the appropriateness of the removal effort. When no removal actions are being undertaken and the District Engineer is unable to identify the owner through investigation or 30 days of public notice, abandonment is presumed.\n\n(d)  Cargo.  If vessel and cargo are separately owned, or ownership of cargo is uncertain, abandonment of vessel and cargo will be established separately.\n\n(e)  Later claims.  After abandonment is established, the owner may no longer undertake removal or make any claim upon the vessel (or other obstruction) or its cargo, unless expressly permitted by the District Engineer.\n\n(f)  Continuing owner liability.  The abandonment of a wreck or other obstruction does not remove the owner's liability for the cost of removal and disposal if removal is undertaken by the Corps of Engineers, except in cases of nonnegligent sinking which occurred prior to November 17, 1986."], ["33:33:3.0.1.1.13.0.1.12", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.50 Removal by Corps of Engineers.", "USACE", "", "", "", "(a)  Non-emergency situations.  In non-emergency situations, the District Engineer may undertake removal action (within the limits of delegation) after all of the following conditions have been met:\n\n(1) A determination has been made, in consultation with the Coast Guard, that the obstruction is a hazard to navigation,\n\n(2) The District Engineer and the Coast Guard agree on a course of action which includes the need for removal (or, if a conflict exists, the need for removal has been resolved at higher level),\n\n(3) The District Engineer has made a reasonable attempt to identify the owner, operator, or lessee, and\n\n(4) Abandonment of the wreck or obstruction has been established.\n\n(b)  Emergency actions.  In emergency situations, the District Engineer may bypass (within the limits of delegation) any or all of the four conditions in the preceding paragraph if, in his judgment, circumstances require more immediate action, and if either one of the following conditions are met:\n\n(1) The obstruction impedes or stops navigation, or\n\n(2) The obstruction poses an immediate threat to life, property, or a structure that facilitates navigation."], ["33:33:3.0.1.1.13.0.1.13", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.55 Permit requirements.", "USACE", "", "", "", "(a)  Permits for removal.  Marking and removal operations by the owner, operator or lessee are normally permitted under nationwide permits for such activities as outlined in part 330 of this chapter. The activities must meet certain conditions as stated in those regulations, and additional permits may still be required from state or local agencies.\n\n(b)  Special conditions.  The Corps of Engineers may add individual or regional conditions to the nationwide permit, or require an individual permit on a case-by-case basis."], ["33:33:3.0.1.1.13.0.1.14", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.60 Reimbursement for removal costs.", "USACE", "", "", "", "The Corps of Engineers will seek reimbursement from the owner, operator, or lessee, if identified, for all removal and disposal costs in excess of the value of the recovered vessel (or other obstruction) and cargo."], ["33:33:3.0.1.1.13.0.1.2", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.3 Applicability.", "USACE", "", "", "", "(a) These procedures apply to the removal of wrecks or other obstructions within the navigable waters of the United States, as defined in part 329 of this chapter.\n\n(b) This part does not apply to the summary removal or destruction of a vessel by the Coast Guard under authority of the Clean Water Act (33 U.S.C. 1321), or to any removal actions involving obstructive bridges which are subject to separate regulation under part 114 of this title.\n\n(c) For vessels which were sunk or wrecked prior to November 17, 1986, the statutory obligation to remove belongs solely to the owner (not the operator or lessee), and the owner's obligation to reimburse the U.S. Treasury for federal removal is limited to cases of voluntary or careless sinking."], ["33:33:3.0.1.1.13.0.1.3", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.5 Definitions.", "USACE", "", "", "", "Abandonment  means the surrendering of all rights to a vessel (or other obstruction) and its cargo by the owner, or owners if vessel and cargo are separately owned.\n\nHazard to navigation  is an obstruction, usually sunken, that presents sufficient danger to navigation so as to require expeditious, affirmative action such as marking, removal, or redefinition of a designated waterway to provide for navigational safety.\n\nObstruction  is anything that restricts, endangers or interferes with navigation.\n\nResponsible party  means the owner of a vessel and/or cargo, or an operator or lessee where the operator or lessee has substantial control of the vessel's operation.\n\nVessel  as used in this part includes any ship, boat, barge, raft, or other water craft."], ["33:33:3.0.1.1.13.0.1.4", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.10 General policy.", "USACE", "", "", "", "(a)  Coordination with Coast Guard.  The Corps of Engineers coordinates its wreck removal program with the Coast Guard through interagency agreement, to insure a coordinated approach to the protection of federal interests in navigation and safety. Disagreements at the field level are resolved by referral to higher authority within each agency, ultimately (within the Corps of Engineers) to the Director of Civil Works, who retains the final authority to make independent determinations where Corps responsibilities and activities are affected.\n\n(b)  Owner responsibility.  Primary responsibility for removal of wrecks or other obstructions lies with the owner, lessee, or operator. Where an obstruction presents a hazard to navigation which warrants removal, the District Engineer will attempt to identify the owner or other responsible party and vigorously pursue removal by that party before undertaking Corps removal.\n\n(c)  Emergency authority.  Obstructions which impede or stop navigation; or pose an immediate and significant threat to life, property, or a structure that facilitates navigation; may be removed by the Corps of Engineers under the emergency authority of section 20 of the Rivers and Harbors Act of 1899, as amended.\n\n(d)  Non-emergency situations.  In other than emergency situations, all reported obstructions will be evaluated jointly by the District Engineer and the Coast Guard district for impact on safe navigation and for determination of a course of action, which may include the need for removal. Obstructions which are not a hazard to general navigation will not be removed by the Corps of Engineers.\n\n(e)  Corps removal.  Where removal is warranted and the responsible party cannot be identified or does not pursue removal diligently, the District Engineer may pursue removal by the Corps of Engineers under section 19 of the Rivers and Harbors Act of 1899, as amended, following procedures outlined in this CFR part."], ["33:33:3.0.1.1.13.0.1.5", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.15 Delegation.", "USACE", "", "", "", "District Engineers may undertake removal without prior approval of the Chief of Engineers provided the cost does not exceed $100,000. Removals estimated to cost above $100,000 require advance approval of the Director of Civil Works."], ["33:33:3.0.1.1.13.0.1.6", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.20 Determination of hazard to navigation.", "USACE", "", "", "", "(a) Upon receiving a report of a wreck or other obstruction, District Engineers will consult with the Coast Guard district to jointly determine whether the obstruction poses a hazard to navigation.\n\n(b) Factors to be considered, as a minimum, include:\n\n(1) Location of the obstruction in relation to the navigable channel and other navigational traffic patterns.\n\n(2) Navigational difficulty in the vicinity of the obstruction.\n\n(3) Clearance or depth of water over the obstruction, fluctuation of water level, and other hydraulic characteristics in the vicinity.\n\n(4) Type and density of commercial and recreational vessel traffic, or other marine activity, in the vicinity of the obstruction.\n\n(5) Physical characteristics of the obstruction, including cargo, if any.\n\n(6) Possible movement of the obstruction.\n\n(7) Location of the obstruction in relation to existing aids to navigation.\n\n(8) Prevailing and historical weather conditions.\n\n(9) Length of time the obstruction has been in existence.\n\n(10) History of vessel accidents involving the obstruction."], ["33:33:3.0.1.1.13.0.1.7", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.25 Determination of remedial action.", "USACE", "", "", "", "(a)  Consultation with Coast Guard.  After a determination has been made that an obstruction presents a hazard to navigation, District Engineers will consult with the Coast Guard district to determine appropriate remedial action for the specific situation.\n\n(b)  Options.  The following options, or some combination of these options, may be considered:\n\n(1) No action.\n\n(2) Charting.\n\n(3) Broadcast notice to mariners and publication of navigational safety information.\n\n(4) Marking.\n\n(5) Redefinition of navigational area (e.g., channel, fairway, anchorage, etc.).\n\n(6) Removal."], ["33:33:3.0.1.1.13.0.1.8", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.30 Identification of responsible parties.", "USACE", "", "", "", "(a)  Investigation.  When marking or removal are determined to be appropriate remedial action and no emergency situation exists, the District Engineer will investigate to determine the owner or, if the owner cannot be determined, the lessee or operator. If cargo is involved, ownership will be separately determined.\n\n(b)  Notification.  If the owner or other responsible party can be determined, the District Engineer and/or the Coast Guard will send a notice, via certified mail, advising them of their legal obligation to mark (referencing Coast Guard requirements) and to remove the obstruction, and of the legal consequences for failure to do so, with a request for prompt reply of intent.\n\n(c)  Public notice.  If the owner or responsible party cannot be determined from investigation, the District Engineer will publish a legal advertisement in a newspaper nearest the location of the obstruction and in a newspaper of at least 25,000 circulation, addressed \u201cTo Whom It May Concern,\u201d requiring removal by the owner, lessee or operator. The advertisement will be published at least once a week for 30 days."], ["33:33:3.0.1.1.13.0.1.9", 33, "Navigation and Navigable Waters", "II", "", "245", "PART 245\u2014REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS", "", "", "", "\u00a7 245.35 Judgments to require removal.", "USACE", "", "", "", "When the owner or responsible party has been identified, and refuses or fails to take prompt action toward removal, the District Engineer may seek a judgment by the district court requiring removal."], ["49:49:4.1.1.1.39.1.137.1", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "A", "Subpart A\u2014General", "", "\u00a7 245.1 Purpose and scope.", "FRA", "", "", "", "(a) The purpose of this part is to ensure that only those persons who meet minimum Federal safety standards serve as dispatchers, to reduce the rate and number of accidents and incidents, and to improve railroad safety.\n\n(b) This part prescribes minimum Federal safety standards for the eligibility, training, testing, certification, and monitoring of all dispatchers to whom it applies. This part does not restrict a railroad from adopting and enforcing additional or more stringent requirements consistent with this part.\n\n(c) The dispatcher certification requirements prescribed in this part apply to any person who meets the definition of dispatcher contained in \u00a7 245.7, regardless of the fact that the person may have a job classification title other than that of dispatcher."], ["49:49:4.1.1.1.39.1.137.2", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "A", "Subpart A\u2014General", "", "\u00a7 245.3 Application and responsibility for compliance.", "FRA", "", "", "", "(a) This part applies to all railroads except:\n\n(1) Railroads that do not have any dispatch (as defined in \u00a7 245.7) tasks performed either by dispatchers employed by the railroad or employed by a contractor or subcontractor;\n\n(2) Railroads that operate only on track inside an installation that is not part of the general railroad system of transportation ( i.e.,  plant railroads, as defined in \u00a7 245.7);\n\n(3) Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation as defined in \u00a7 245.7; or\n\n(4) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation.\n\n(b) Although the duties imposed by this part are generally stated in terms of the duty of a railroad, each person, as defined in \u00a7 245.7, who performs any function required by this part must perform that function in accordance with this part."], ["49:49:4.1.1.1.39.1.137.3", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "A", "Subpart A\u2014General", "", "\u00a7 245.5 Effect and construction.", "FRA", "", "", "", "(a) FRA does not intend, by use of the term dispatcher in this part, to alter the terms, conditions, or interpretation of existing collective bargaining agreements that employ other job classification titles when identifying a person who dispatches a train.\n\n(b) FRA does not intend, by issuance of the regulations in this part, to alter the authority of a railroad to initiate disciplinary sanctions against its employees, including managers and supervisors, in the normal and customary manner, including those contained in its collective bargaining agreements.\n\n(c) Except as provided in \u00a7 245.213, nothing in this part shall be construed to create or prohibit an eligibility or entitlement to employment in other service for the railroad as a result of denial, suspension, or revocation of certification under this part.\n\n(d) Nothing in this part shall be deemed to abridge any additional procedural rights or remedies not inconsistent with this part that are available to the employee under a collective bargaining agreement, the Railway Labor Act, or (with respect to employment at will) at common law with respect to removal from service or other adverse action taken as a consequence of this part."], ["49:49:4.1.1.1.39.1.137.4", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "A", "Subpart A\u2014General", "", "\u00a7 245.7 Definitions.", "FRA", "", "", "[89 FR 44806, May 21, 2024, as amended at 90 FR 28128, July 1, 2025]", "As used in this part:\n\nAdministrator  means the Administrator of the FRA or the Administrator's delegate.\n\nAlcohol  means ethyl alcohol (ethanol) and includes use or possession of any beverage, mixture, or preparation containing ethyl alcohol.\n\nBlocking device  means a method of control that either prohibits the operation of a switch or signal or restricts access to a section of track.\n\nControlled substance  has the meaning assigned by 21 U.S.C. 802 and includes all substances listed on Schedules I through V as they may be revised from time to time (21 CFR parts 1301 through 1316).\n\nDispatch  means:\n\n(1) To perform a function that would be classified as a duty of a \u201cdispatching service employee,\u201d as that term is defined by the hours of service laws at 49 U.S.C. 21101(2), if the function were to be performed in the United States. The term dispatch includes, but is not limited to, by the use of an electrical or mechanical device:\n\n(i) Controlling the movement of a train or other on-track equipment by the issuance of a written or verbal authority or permission affecting a railroad operation, or by establishing a route through the use of a railroad signal or train control system but not merely by aligning or realigning a switch; or\n\n(ii) Controlling the occupancy of a track by a roadway worker or stationary on-track equipment, or both; or\n\n(iii) Issuing a mandatory directive, including, but not limited to, speed restrictions, highway-rail grade crossing protections, or those which establish working limits for roadway workers.\n\n(2) The term  dispatch  does not include the actions of personnel in the field:\n\n(i) Effecting implementation of a written or verbal authority or permission for a railroad operation, including an authority for working limits to a roadway worker ( e.g.,  initiating an interlocking timing device, authorizing a train to enter working limits); or\n\n(ii) Operating a function of a signal system designed for use by those personnel; or\n\n(iii) Sorting and grouping rail cars inside a railroad yard to assemble or disassemble a train.\n\nDispatcher  means any individual who dispatches.\n\nDispatcher Pilot  means a dispatcher qualified on assigned territory, tasked with overseeing a non-qualified employee who has not successfully completed all instruction, training and examination programs for the physical characteristics of the territory or position.\n\nDrug  means any substance (other than alcohol) that has known mind or function-altering effects on a human subject, specifically including any psychoactive substance and including, but not limited to, controlled substances.\n\nDrug and alcohol counselor (DAC)  means a person who meets the credentialing and qualification requirements of a \u201cSubstance Abuse Professional\u201d (SAP), as provided in 49 CFR part 40.\n\nFile, filed,  and  filing  mean submission of a document under this part on the date when the Docket Clerk receives it, or if sent by mail, the date mailing was completed.\n\nFRA  means the Federal Railroad Administration.\n\nFRA representative  means the FRA Associate Administrator for Railroad Safety/Chief Safety Officer and the Associate Administrator's delegate, including any safety inspector employed by the Federal Railroad Administration and any qualified State railroad safety inspector acting under part 212 of this chapter.\n\nIneligible  or  ineligibility  means that a person is legally disqualified from serving as a certified dispatcher. The term covers a number of circumstances in which a person may not serve as a certified dispatcher. Revocation of certification pursuant to \u00a7 245.307 and denial of certification pursuant to \u00a7 245.301 are two examples in which a person would be ineligible to serve as a dispatcher. A period of ineligibility may end when a condition or conditions are met, such as when a person meets the conditions to serve as a dispatcher following an alcohol or drug violation pursuant to \u00a7 245.115.\n\nKnowingly  means having actual knowledge of the facts giving rise to the violation or that a reasonable person acting in the circumstances, exercising due care, would have had such knowledge.\n\nMain track  means a track upon which the operation of trains is governed by one or more of the following methods of operation: Timetable; mandatory directive; signal indication; or any form of absolute or manual block system.\n\nMandatory directive  means any movement authority or speed restriction that affects a railroad operation.\n\nMedical examiner  means a person licensed as a doctor of medicine or doctor of osteopathy. A medical examiner can be a qualified full-time salaried employee of a railroad, a qualified practitioner who contracts with the railroad on a fee-for-service or other basis, or a qualified practitioner designated by the railroad to perform functions in connection with medical evaluations of employees. As used in this part, the medical examiner owes a duty to make an honest and fully informed evaluation of the condition of an individual.\n\nOn-the-job training  means job training that occurs in the workplace,  i.e.,  the employee learns the job while doing the job.\n\nPerson  means an entity of any type covered under 49 U.S.C. 21301, including but not limited to the following: a railroad; a manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any independent contractor providing goods or services to a railroad; and any employee of such owner, manufacturer, lessor, lessee, or independent contractor.\n\nPhysical characteristics  means the actual track profile of and physical location for points within a specific yard or route that affect the movement of a locomotive or train. Physical characteristics includes  main track physical characteristics  (see definition of \u201cmain track\u201d in this section) and other than main track physical characteristics.\n\nPlant railroad  means a plant or installation that owns or leases a locomotive, uses that locomotive to switch cars throughout the plant or installation, and is moving goods solely for use in the facility's own industrial processes. The plant or installation could include track immediately adjacent to the plant or installation if the plant railroad leases the track from the general system railroad and the lease provides for (and actual practice entails) the exclusive use of that trackage by the plant railroad and the general system railroad for purposes of moving only cars shipped to or from the plant. A plant or installation that operates a locomotive to switch or move cars for other entities, even if solely within the confines of the plant or installation, rather than for its own purposes or industrial processes, will not be considered a plant railroad because the performance of such activity makes the operation part of the general railroad system of transportation.\n\nQualified  means a person who has successfully completed all instruction, training and examination programs required by the employer, and the applicable parts of this chapter and that the person therefore may reasonably be expected to be proficient on all safety related tasks the person is assigned to perform.\n\nQualified instructor  means a person who has demonstrated, pursuant to the railroad's written program, an adequate knowledge of the subjects under instruction and, where applicable, has the necessary dispatching experience to effectively instruct in the field, and has the following qualifications:\n\n(1) Is a certified dispatcher under this part; and\n\n(2) Has been selected as such by a designated railroad officer, in concurrence with the designated employee representative, where present; or\n\n(3) In absence of concurrence provided in paragraph (2) of this definition, has a minimum of one year of service working as a dispatcher.\n\nIf a railroad does not have designated employee representation, then a person need not comply with paragraph (2) or (3) of this definition to be a  qualified instructor.\n\nRailroad  means any form of nonhighway ground transportation that runs on rails or electromagnetic guideways and any entity providing such transportation, including:\n\n(1) Commuter or other short-haul railroad passenger service in a metropolitan or suburban area and commuter railroad service that was operated by the Consolidated Rail Corporation on January 1, 1979; and\n\n(2) High speed ground transportation systems that connect metropolitan areas, without regard to whether those systems use new technologies not associated with traditional railroads; but does not include rapid transit operations in an urban area that are not connected to the general railroad system of transportation.\n\nRailroad officer  means any supervisory employee of a railroad.\n\nRoadway worker in charge (RWIC)  means a roadway worker who is qualified under \u00a7 214.353 of this chapter to establish on-track safety for roadway work groups, and lone workers qualified under \u00a7 214.347 of this chapter to establish on-track safety for themselves.\n\nServe or service,  in the context of serving documents, has the meaning given in Rule 5 of the Federal Rules of Civil Procedure as amended. Similarly, the computation of time provisions in Rule 6 of the Federal Rules of Civil Procedure as amended are also applicable in this part.  See also  the definition of \u201cfiling\u201d in this section.\n\nSubstance abuse disorder  refers to a psychological or physical dependence on alcohol or a drug, or another identifiable and treatable mental or physical disorder involving the abuse of alcohol or drugs as a primary manifestation. A substance abuse disorder is \u201cactive\u201d within the meaning of this part if the person is currently using alcohol or other drugs, except under medical supervision consistent with the restrictions described in \u00a7 219.103 of this chapter or has failed to successfully complete primary treatment or successfully participate in aftercare as directed by a DAC or SAP.\n\nSubstance Abuse Professional (SAP)  means a person who meets the qualifications of a substance abuse professional, as provided in 49 CFR part 40.\n\nTerritorial qualifications  means possessing the necessary knowledge concerning a railroad's operating rules and timetable special instructions including familiarity with applicable  main track  and other than  main track physical characteristics  of the territory over which the locomotive or train movement will occur as well as the characteristics of the position to include, and not limited to, the operation and capabilities of dispatch control systems.\n\nTourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation  means a tourist, scenic, historic, or excursion operation conducted only on track used exclusively for that purpose ( i.e.,  there is no freight, intercity passenger, or commuter passenger railroad operation on the track)."], ["49:49:4.1.1.1.39.1.137.5", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "A", "Subpart A\u2014General", "", "\u00a7 245.9 Waivers.", "FRA", "", "", "", "(a) A person subject to a requirement of this part may petition FRA for a waiver of compliance with such requirement. The filing of such a petition does not affect that person's responsibility for compliance with that requirement while the petition is being considered.\n\n(b) Each petition for a waiver under this section must be filed in the manner and contain the information required by part 211 of this chapter.\n\n(c) If FRA finds that a waiver of compliance is in the public interest and is consistent with railroad safety, FRA may grant the waiver subject to any conditions FRA deems necessary."], ["49:49:4.1.1.1.39.1.137.6", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "A", "Subpart A\u2014General", "", "\u00a7 245.11 Penalties and consequences for noncompliance.", "FRA", "", "", "", "(a) Any person (including a railroad; any manager, supervisor, official, or other employee or agent of a railroad; any owner, manufacturer, lessor, or lessee of railroad equipment, track, or facilities; any employee of such owner, manufacturer, lessor, or lessee; or any independent contractor or subcontractor of a railroad) who violates any requirement of this part or causes the violation of any such requirement is subject to a civil penalty of at least the minimum civil monetary penalty and not more than the ordinary maximum civil monetary penalty per violation. However, penalties may be assessed against individuals only for willful violations, and a penalty not to exceed the aggravated maximum civil monetary penalty per violation may be assessed, where:\n\n(1) A grossly negligent violation, or a pattern of repeated violations, has created an imminent hazard of death or injury to persons; or\n\n(2) A death or injury has occurred.  See  49 CFR part 209, appendix A.\n\n(b) Each day a violation continues constitutes a separate offense.\n\n(c) A person who violates any requirement of this part or causes the violation of any such requirement may be subject to disqualification from all safety-sensitive service in accordance with part 209 of this chapter.\n\n(d) A person who knowingly and willfully falsifies a record or report required by this part may be subject to criminal penalties under 49 U.S.C. 21311.\n\n(e) In addition to the enforcement methods referred to in paragraphs (a) through (d) of this section, FRA may address violations of this part by use of the emergency order, compliance order, and/or injunctive provisions of the Federal rail safety laws.\n\n(f) FRA's website at  https://railroads.dot.gov/  contains a schedule of civil penalty amounts used in connection with this part."], ["49:49:4.1.1.1.39.2.137.1", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.101 Certification program required.", "FRA", "", "", "", "(a) Each railroad subject to this part shall have a written dispatcher certification program.\n\n(b) Each certification program shall include all of the following:\n\n(1) A procedure for evaluating prior safety conduct as a motor vehicle operator that complies with the criteria established in \u00a7 245.111.\n\n(2) A procedure for evaluating prior safety conduct as an employee or certified dispatcher with other railroads that complies with the criteria established in \u00a7 245.113.\n\n(3) A procedure for evaluating potential substance abuse disorders and compliance with railroad alcohol and drug rules that complies with the criteria established in \u00a7 245.115.\n\n(4) A procedure for evaluating visual and hearing acuity that complies with the criteria established in \u00a7\u00a7 245.117 and 245.118.\n\n(5) A procedure for training that complies with the criteria established in \u00a7 245.119.\n\n(6) A procedure for knowledge testing that complies with the criteria established in \u00a7 245.121.\n\n(7) A procedure for monitoring operational performance that complies with the criteria established in \u00a7 245.123."], ["49:49:4.1.1.1.39.2.137.10", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.118 Hearing acuity.", "FRA", "", "", "", "(a) After FRA has approved a railroad's dispatcher certification program, the railroad shall determine, prior to issuing any person a dispatcher certificate, that the person meets the standards for hearing acuity prescribed in this section and appendix B to this part.\n\n(b) Any examination required under this section shall be performed by or under the supervision of a medical examiner or a licensed physician's assistant.\n\n(c) Except as provided in paragraph (d) of this section, each dispatcher shall have hearing acuity that meets or exceeds the following thresholds with or without use of a hearing aid: The person does not have an average hearing loss in the better ear greater than 40 decibels at 500 hertz (Hz), 1,000 Hz, and 2,000 Hz. The hearing test or audiogram used to show a person's hearing acuity shall meet the requirements of one of the following:\n\n(1) As required in 29 CFR 1910.95(h) (Occupational Safety and Health Administration);\n\n(2) As required in \u00a7 227.111 of this chapter; or\n\n(3) Conducted using an audiometer that meets the specifications of, and is maintained and used in accordance with, a formal industry standard such as American National Standards Institute (ANSI) S3.6, \u201cSpecifications for Audiometers.\u201d\n\n(d) A person not meeting the thresholds in paragraph (c) of this section shall, upon request of the certification candidate, be subject to further medical evaluation by a railroad's medical examiner to determine that person's ability to safely perform as a dispatcher. In such cases, the following procedures will apply:\n\n(1) In accordance with the guidance prescribed in appendix B to this part, a person is entitled to:\n\n(i) One retest without making any showing; and\n\n(ii) An additional retest if the person provides evidence that circumstances have changed since the last test to the extent that the person may now be able to safely perform as a dispatcher.\n\n(2) The railroad shall provide its medical examiner with a copy of this part, including all appendices.\n\n(3) If, after consultation with a railroad officer, the medical examiner concludes that, despite not meeting the threshold(s) in paragraph (c) of this section, the person has the ability to safely perform as a dispatcher, the railroad may conclude that the person satisfies the hearing acuity requirements of this section to be a certified dispatcher. Such certification will be conditioned on any special restrictions the medical examiner determines in writing to be necessary.\n\n(e) To make the determination required under paragraph (a) of this section, a railroad shall have on file the following for each certification candidate:\n\n(1) A medical examiner's certificate that the candidate has been medically examined and either does or does not meet the hearing acuity standards prescribed in paragraph (c) of this section.\n\n(2) If needed under paragraph (d) of this section, a medical examiner's written professional opinion which states the basis for their determination that:\n\n(i) The candidate can be certified, under certain conditions if necessary, even though the candidate does not meet the hearing acuity standards prescribed in paragraph (c) of this section; or\n\n(ii) The candidate's hearing acuity prevents the candidate from being able to safely perform as a dispatcher.\n\n(f) If the examination required under this section shows that the person needs a hearing aid to meet the standards for hearing acuity prescribed in this section and appendix B to this part, that person shall use a hearing aid at all times while performing as a dispatcher unless the railroad's medical examiner subsequently determines in writing that the person can safely perform as a dispatcher without a hearing aid.\n\n(g) When a certified dispatcher becomes aware that their hearing has deteriorated, they shall notify the railroad's medical department or other appropriate railroad official of the deterioration. Such notification must occur prior to performing any subsequent service as a dispatcher. The individual cannot return to service as a dispatcher until they are reexamined and determined by the railroad's medical examiner to satisfy the hearing acuity standards prescribed in this section and appendix B to this part.\n\n(h) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section."], ["49:49:4.1.1.1.39.2.137.11", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.119 Training requirements.", "FRA", "", "", "", "(a) After FRA has approved a railroad's certification program, the railroad shall determine, prior to issuing any person a dispatcher certificate, that the person has successfully completed the training, in accordance with the requirements of this section.\n\n(b) A railroad that elects to accept responsibility to provide initial dispatcher training to persons who have not been previously certified as dispatchers shall state in its certification program whether it will conduct the training program or employ a training program conducted by some other entity on its behalf but adopted and ratified by the railroad.\n\n(c) A railroad that elects to train persons not previously certified as dispatchers shall develop an initial training program which, at a minimum, includes the following:\n\n(1) An explanation of how training must be structured, developed, and delivered, including an appropriate combination of classroom, simulator, computer-based, correspondence, on-the-job training, or other formal training. The curriculum shall be designed to impart knowledge of, and ability to comply with, applicable Federal railroad safety laws, regulations, and orders, as well as any relevant railroad rules and procedures promulgated to implement those applicable Federal railroad safety laws, regulations, and orders. This training shall document a person's knowledge of, and ability to comply with, Federal railroad safety laws, regulations, and orders, as well as railroad rules and procedures.\n\n(2) An on-the-job training component which shall include the following:\n\n(i) A syllabus describing content, required tasks, and related steps the person learning the job shall be able to perform within a specified timeframe;\n\n(ii) A statement of the conditions ( e.g.,  prerequisites, dispatch and related dispatch support systems, documentation, briefings, demonstrations, and practice) necessary for learning transfer; and\n\n(iii) A statement of the standards by which proficiency is measured through a combination of task/step accuracy, completeness, and repetition.\n\n(3) A description of the processes to review and modify its training program when new safety-related railroad laws, regulations, orders, technologies, procedures, software, or equipment are introduced into the workplace, including how it is determined if additional or refresher training is needed.\n\n(d) Prior to beginning the initial dispatching related tasks associated with on-the-job exercises discussed in paragraph (c)(2) of this section, each railroad shall make any relevant information or materials, such as operating rules, safety rules, or other rules, available for referencing by certification candidates.\n\n(e) Prior to a person, not previously certified as a dispatcher, being certified as a dispatcher, a railroad shall require the person to:\n\n(1) Successfully complete the formal initial training program developed pursuant to paragraph (c) of this section and any associated examinations covering the skills and knowledge the person will need to perform the tasks necessary to be a dispatcher;\n\n(2) Perform on-the-job training and demonstrate on-the-job proficiency, with input from a qualified instructor, by successfully completing the tasks and using the dispatching systems and technology necessary to be a dispatcher. A certification candidate may only perform such tasks under the direct onsite supervision of a qualified instructor; and\n\n(3) Demonstrate knowledge of the physical characteristics of any assigned territory. If the railroad uses a written test to fulfill this requirement, the railroad must provide the certification candidate with an opportunity to consult with a supervisory employee who possesses territorial qualifications for the territory to explain a question.\n\n(f) In making the determination required under paragraph (a) of this section, a railroad shall have written documentation showing that:\n\n(1) The person completed a training program that complies with paragraph (c) of this section (if the person has not been previously certified as a dispatcher);\n\n(2) The person demonstrated their knowledge by achieving a passing grade under the testing and evaluation procedures of the training program; and\n\n(3) The person achieved a passing score on the physical characteristics exam associated with the territories, or its pertinent segments, over which the person will be performing dispatching service.\n\n(g) The certification program, required under this part and submitted in accordance with the procedures and requirements described in \u00a7 245.107, shall include:\n\n(1) The methods that a person may acquire familiarity with the physical characteristics of a territory;\n\n(2) The procedures used to qualify and requalify a dispatcher on a territory; and\n\n(3) The maximum time period in which a dispatcher can be absent from a territory before requalification is required. In accordance with \u00a7 245.120(c), this time period cannot exceed 12 months.\n\n(h) If ownership of a railroad is being transferred from one company to another, the dispatchers of the acquiring company may receive familiarization training from the selling company prior to the acquiring company commencing operation.\n\n(i) A railroad shall provide for the continuing education of its certified dispatchers to ensure that each dispatcher maintains the necessary knowledge concerning:\n\n(1) Railroad safety and operating rules;\n\n(2) Physical territory;\n\n(3) Dispatching systems and technology; and\n\n(4) Compliance with all applicable Federal regulations including, but not limited to, hazardous materials, passenger train emergency preparedness, emergency response procedures, and physical characteristics of a territory.\n\n(j) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section."], ["49:49:4.1.1.1.39.2.137.12", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.120 Requirements for territorial qualification.", "FRA", "", "", "", "(a) After FRA has approved a railroad's certification program, a railroad shall not permit or require a person to serve as a dispatcher on a particular territory unless that railroad determines that:\n\n(1) The person is a certified dispatcher; and\n\n(2) The person either:\n\n(i) Possesses the necessary territorial qualifications for the applicable territory pursuant to \u00a7 245.119; or\n\n(ii) Is assisted by a Dispatcher Pilot who is qualified on the territory.\n\n(b) If a person is called to serve on a territory that they are not qualified on, the person must immediately notify the railroad that they are not qualified on the assigned territory.\n\n(c) A person shall no longer be considered qualified on a territory if they have not worked on that territory as a dispatcher in the previous 12 months.\n\n(d) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section."], ["49:49:4.1.1.1.39.2.137.13", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.121 Knowledge testing.", "FRA", "", "", "", "(a) After FRA has approved a railroad's dispatcher certification program, the railroad shall determine, prior to issuing any person a dispatcher certificate and in accordance with the requirements of this section, that the person has demonstrated sufficient knowledge of the railroad's rules and practices for the safe movement of trains.\n\n(b) In order to make the knowledge determination required by paragraph (a) of this section, a railroad shall have procedures for testing a person being evaluated for certification as a dispatcher that are:\n\n(1) Designed to examine a person's knowledge of the railroad's operating rules and practices for the safe movement of trains;\n\n(2) Objective in nature;\n\n(3) In written or electronic form;\n\n(4) Covering the following subjects:\n\n(i) Safety and operating rules;\n\n(ii) Timetable instructions;\n\n(iii) Compliance with all applicable Federal regulations;\n\n(iv) Physical characteristics of the territory or territories on which a person is currently working or training to qualify as a dispatcher; and\n\n(v) Dispatching systems and technology.\n\n(5) Sufficient to accurately measure the person's knowledge of the covered subjects; and\n\n(6) Conducted without open reference books or other materials except to the degree the person is being tested on their ability to use such reference books or materials.\n\n(c) The railroad shall provide the certification candidate with an opportunity to consult with a supervisory employee who possesses territorial qualifications for the territory to explain a test question.\n\n(d) If a person fails the test, no railroad shall permit or require that person to work as a dispatcher prior to that person's achieving a passing score during a reexamination of the test.\n\n(e) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section."], ["49:49:4.1.1.1.39.2.137.14", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.123 Monitoring operational performance.", "FRA", "", "", "", "(a) Each railroad's certification program shall describe how it will monitor the operational performance of its certified dispatchers by including procedures for:\n\n(1) Giving each certified dispatcher at least one unannounced railroad and Federal rules, territorial and dispatch systems compliance test each calendar year, except as provided for in paragraph (c) of this section;\n\n(2) Giving unannounced compliance tests to certified dispatchers who return to dispatcher service after performing service that does not require certification pursuant to this part, as described in paragraph (c) of this section; and\n\n(3) What actions the railroad will take if it finds deficiencies in a dispatcher's performance during an unannounced compliance test.\n\n(b) An unannounced compliance test shall:\n\n(1) Test certified dispatchers for compliance with one or more operational tests in accordance with the provisions of \u00a7 217.9 of this chapter;\n\n(2) Be performed by a railroad officer who meets the requirements of \u00a7 217.9(b)(1) of this chapter; and\n\n(3) Be given to each certified dispatcher at least once each calendar year, except as provided for in paragraph (c) of this section.\n\n(c) A certified dispatcher who is not performing service that requires certification pursuant to this part does not need to be given an unannounced compliance test. However, when the certified dispatcher returns to service that requires certification pursuant to this part after not being given an unannounced compliance test in a calendar year, the railroad shall:\n\n(1) Give the certified dispatcher an unannounced compliance test within 30 days of their return to dispatcher service; and\n\n(2) Retain a written record that includes the following information:\n\n(i) The date the dispatcher stopped performing service that required certification pursuant to this part;\n\n(ii) The date the dispatcher returned to service that required certification pursuant to this part; and\n\n(iii) The date and the result of the unannounced compliance test that was performed following the dispatcher's return to service requiring certification.\n\n(d) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section."], ["49:49:4.1.1.1.39.2.137.15", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.125 Certification determinations made by other railroads.", "FRA", "", "", "", "(a) A railroad that is considering certification of a person as a dispatcher may rely on certain determinations made by another railroad concerning that person's certification.\n\n(b) A railroad relying on certification determinations made by another railroad shall still be responsible for determining that:\n\n(1) The prior certification is still valid in accordance with the provisions of \u00a7\u00a7 245.201 and 245.307;\n\n(2) The person has received training on the physical characteristics of the new territory in accordance with \u00a7 245.119; and\n\n(3) The person has demonstrated the necessary knowledge concerning the railroad's operating rules, territory, dispatch systems and technology in accordance with \u00a7 245.121."], ["49:49:4.1.1.1.39.2.137.2", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.103 FRA review of certification programs.", "FRA", "", "", "", "(a)  Certification program submission schedule for railroads with current dispatching operations.  Each railroad with current dispatching operations, as of July 22, 2024, shall submit its dispatcher certification program to FRA, in accordance with the procedures and requirements contained in \u00a7 245.107, according to the following schedule:\n\n(1) All Class I railroads (including the National Railroad Passenger Corporation) and railroads providing commuter service shall submit their programs to FRA no later than March 17, 2025.\n\n(2) All Class II railroads and Class III railroads (including a switching and terminal or other railroad not otherwise classified) shall submit their programs to FRA no later than November 12, 2025.\n\n(b)  Certification program submission for new dispatching railroads.  For each railroad that commences dispatching operations after July 22, 2024, the railroad shall submit its written dispatcher certification program to, and obtain approval from, FRA in accordance with the procedures and requirements contained in \u00a7 245.107, prior to commencing dispatching operations.\n\n(c)  Method for submitting certification programs to FRA.  Railroads must submit their written certification programs and their requests for approval (described in \u00a7 245.107(a)) by emailing the documents to  FRADISPATCHCERTPROG@dot.gov.\n\n(d)  Notification requirements.  Each railroad that submits a program to FRA must:\n\n(1) Simultaneously with its submission, provide a copy of the program and the request for approval (as described in \u00a7 245.107(a)) to the president of each labor organization that represents the railroad's dispatchers and to all of the railroad's dispatchers that are subject to this part; and\n\n(2) Include in its submission to FRA, a statement affirming that the railroad has provided a copy of the program and the request for approval to the president of each labor organization that represents the railroad's dispatchers and to all of the railroad's dispatchers that are subject to this part, along with a list of the names and email addresses of each president of a labor organization who was provided a copy of the program.\n\n(e)  Comment period.  Any designated representative of dispatchers subject to this part or any directly affected person who does not have a designated representative may comment on a railroad's program provided that:\n\n(1) The comment is submitted no later than 60 days after the date the program was submitted to FRA;\n\n(2) The comment includes a concise statement of the commenter's interest in the matter;\n\n(3) The commenter affirms that a copy of the comment was provided to the railroad; and\n\n(4) The comment was emailed to  FRADISPATCHCERTPROG@dot.gov.\n\n(f)  FRA review period.  Upon receipt of a program, FRA will commence a thorough review of the program to ensure that it satisfies all of the requirements under this part.\n\n(1) If FRA determines that the program satisfies all of the requirements under this part, FRA will issue a letter notifying the railroad that its program has been approved. Such letter will typically be issued within 120 days of the date the program was submitted to FRA.\n\n(2) If FRA determines that the program does not satisfy all of the requirements under this part, FRA will issue a letter notifying the railroad that its program has been disapproved. Such letter will typically be issued within 120 days of the date the program was submitted to FRA and will identify the deficiencies found in the program that must be corrected before the program can be approved. After addressing these deficiencies, railroads can resubmit their programs in accordance with paragraph (h) of this section.\n\n(3) If a railroad does not receive an approval or disapproval letter from FRA within 120 days of the date the program was submitted to FRA, FRA's decision on the program will remain pending until such time that FRA issues a letter either approving or disapproving the program. A certification program is not approved until FRA issues a letter approving the program.\n\n(g)  Material modifications.  A railroad that intends to make one or more material modifications to its FRA-approved program must submit a request for approval (as described in \u00a7 245.107(a)(3)) of how it intends to modify the program and a copy of the modified program.\n\n(1) A modification is material if it would affect the program's conformance with this part.\n\n(2) The description of the modification and the modified program shall conform with the procedures and requirements contained in \u00a7 245.107.\n\n(3) The process for submission and review of material modifications shall conform with paragraphs (c) through (f) of this section.\n\n(4) A railroad shall not implement a material modification to its program until FRA issues its approval of the material modification in accordance with paragraph (f)(1) of this section.\n\n(h)  Resubmissions.  If FRA disapproves a railroad's program or material modification, as described in paragraph (f)(2) of this section, the railroad can resubmit its program or material modification after addressing all of the deficiencies noted by FRA.\n\n(1) The resubmission must conform with the procedures and requirements contained in \u00a7 245.107.\n\n(2) The process for submission and review of resubmitted programs and resubmitted material modifications shall conform with paragraphs (c) through (f) of this section.\n\n(3) The following deadlines apply to railroads that have their programs or material modifications disapproved by FRA:\n\n(i) For a railroad that submitted its program pursuant to paragraph (a) of this section, the railroad must resubmit its program within 30 days of the date that FRA notified the railroad of the deficiencies in its program. If a railroad fails to resubmit its program within this timeframe and it continues its dispatching operations, FRA may consider such actions to be a failure to implement a program.\n\n(ii) For a railroad that submitted its program pursuant to paragraph (b) of this section, there is no FRA-imposed deadline for resubmitting its program. However, pursuant to \u00a7 245.105(b), the railroad cannot begin dispatching operations until its program has been approved by FRA.\n\n(iii) For a railroad that submitted a material modification to its FRA-approved program, there is no FRA-imposed deadline for resubmitting the material modification. However, pursuant to paragraph (g)(4) of this section, the railroad cannot implement the material modification until it has been approved by FRA.\n\n(i)  Rescinding prior approval of program.  FRA reserves the right to revisit its prior approval of a railroad's program at any time.\n\n(1) If upon such review, FRA discovers deficiencies in the program such that the program does not comply with subpart B of this part, FRA shall issue the railroad a letter rescinding its prior approval of the program and notifying the railroad of the deficiencies in its program that must be addressed.\n\n(2) Within 30 days of FRA notifying the railroad of the deficiencies in its program, the railroad must address these deficiencies and resubmit its program to FRA. The resubmitted program must conform with the procedures and requirements contained in \u00a7 245.107.\n\n(3) The process for submission and review of resubmitted programs under this paragraph (i) shall conform with paragraphs (c) through (f) of this section.\n\n(4) If a railroad fails to resubmit its program to FRA within the timeframe prescribed in paragraph (i)(2) of this section and the railroad continues its dispatching operations, FRA may consider such actions to be a failure to implement a program.\n\n(5) If FRA issues a letter disapproving the railroad's resubmitted program, the railroad shall continue to resubmit its program in accordance with this paragraph (i).\n\n(6) A program that has its approval rescinded under paragraph (i)(1) of this section may remain in effect until whichever of the following happens first:\n\n(i) FRA approves the railroad's resubmitted program; or\n\n(ii) FRA disapproves the railroad's second attempt at resubmitting its program.\n\n(7) If FRA disapproves a railroad's second attempt at resubmitting its program under this paragraph (i) and the railroad continues its dispatching operations, FRA may consider such actions to be a failure to implement a program.\n\n(j)  Availability of certification program documents.  The following documents will be available on FRA's website ( railroads.dot.gov ):\n\n(1) A railroad's originally submitted program, a resubmission of its program, or a material modification of its program;\n\n(2) Any comments, submitted in accordance with paragraph (e) of this section, to a railroad's originally submitted program, a resubmission of its program, or a material modification of its program; and\n\n(3) Any approval or disapproval letter issued by FRA in response to a railroad's originally submitted program, a resubmission of its program, or a material modification of its program."], ["49:49:4.1.1.1.39.2.137.3", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.105 Implementation schedule for certification programs.", "FRA", "", "", "", "(a) Each railroad that submits its dispatcher certification program to FRA in accordance with \u00a7 245.103(a), may continue dispatching operations while it awaits approval of its program by FRA. However, if FRA disapproves a railroad's program on two occasions and the railroad continues dispatching operations, FRA may consider such actions to be a failure to implement a program.\n\n(b) Each railroad that submits its dispatcher certification program to FRA in accordance with \u00a7 245.103(b), must have its program approved by FRA prior to commencing dispatching operations. If such railroad commences dispatching operations before its program is approved by FRA, FRA may consider such actions to be a failure to implement a program.\n\n(c) By March 17, 2025, each railroad shall:\n\n(1) In writing, designate as certified dispatchers all persons authorized by the railroad to perform the duties of a dispatcher as of March 17, 2025; and\n\n(2) Issue a certificate that complies with \u00a7 245.207 to each person that it designates.\n\n(d) Between March 17, 2025 and the date FRA approves the railroad's certification program, each railroad shall:\n\n(1) In writing, designate as a certified dispatcher any person who has been authorized by the railroad to perform the duties of a dispatcher between March 17, 2025 and the date FRA approves the railroad's certification program; and\n\n(2) Issue a certificate that complies with \u00a7 245.207 to each person that it designates.\n\n(e) After March 17, 2025, no railroad shall permit or require a person to perform service as a dispatcher unless that person is a certified dispatcher.\n\n(f) No railroad shall permit or require a person, designated as a certified dispatcher under the provisions of paragraph (c) or (d) of this section, to perform service as a certified dispatcher for more than three years after the date FRA approves the railroad's certification program unless that person has been tested and evaluated in accordance with procedures that comply with subpart B of this part.\n\n(1) Except as provided in paragraph (f)(3) of this section, a person who has been designated as a certified dispatcher under the provisions of paragraph (c) or (d) of this section and who is eligible to receive a retirement pension in accordance with the terms of an applicable agreement or in accordance with the terms of the Railroad Retirement Act (45 U.S.C. 231) within three years from the date the certifying railroad's program is approved by FRA, may request in writing, that a railroad not recertify that person, pursuant to subpart B of this part, until three years from the date the certifying railroad's program is approved.\n\n(2) Upon receipt of a written request pursuant to paragraph (f)(1) of this section, a railroad may wait to recertify the person making the request until the end of the three-year period after FRA has approved the railroad's certification program. If a railroad grants any request, it must grant the request of all eligible persons to every extent possible.\n\n(3) A person who is subject to recertification under part 240 or 242 of this chapter may not make a request pursuant to paragraph (f)(1) of this section.\n\n(g) After a railroad's certification program has been approved by FRA, the railroad shall only certify or recertify a person as a dispatcher if that person has been tested and evaluated in accordance with procedures that comply with subpart B of this part."], ["49:49:4.1.1.1.39.2.137.4", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.107 Requirements for certification programs.", "FRA", "", "", "", "(a)  Railroad's certification program submission.  (1) A railroad's certification program submission must include a copy of the certification program and a request for approval. If a railroad is submitting a material modification to its program, the copy of the certification program must incorporate all of the material modifications the railroad would like to make.\n\n(2) For a railroad's initial certification program submission, the request for approval can be in letter or narrative format and shall include a statement that the railroad is seeking approval of its program by FRA.\n\n(3) If a railroad is making a material modification to a program that has been previously approved by FRA, the request for approval can be in letter or narrative format and shall include an explanation of all of the material modifications that the railroad is making to its program.\n\n(4) A railroad will receive approval or disapproval notices from FRA by email. (5) FRA may electronically store any materials required by this part.\n\n(b)  Organization of the certification program.  Each program must be organized to present the required information in paragraphs (b)(1) through (6) of this section. Each section of the certification program must begin by giving the name, title, telephone number, and email address of the person to be contacted concerning the matters addressed by that section. If a person is identified in a prior section, it is sufficient to merely repeat the person's name in a subsequent section.\n\n(1)  Section 1 of the program: general information and elections.  (i) The first section of the certification program must contain the name of the railroad, the person to be contacted concerning the request for approval (including the person's name, title, telephone number, and email address) and a statement electing either to accept responsibility for training persons not previously certified as dispatchers or to not accept this responsibility.\n\n(ii) If a railroad elects not to provide initial dispatcher training, the railroad will be limited to recertifying persons initially certified by another railroad. A railroad can change its election by obtaining FRA approval of a material modification to its program in accordance with \u00a7 245.103(g).\n\n(iii) If a railroad elects to accept responsibility for training persons not previously certified as dispatchers, the railroad must submit information on how such persons will be trained but is not required to actually perform such training. A railroad that elects to accept responsibility for the training of such persons may authorize another railroad or a non-railroad entity to perform the actual training effort. The electing railroad remains responsible for ensuring that such other training providers adhere to the training program the railroad submits.\n\n(2)  Section 2 of the program: training persons previously certified.  The second section of the certification program must contain information about the railroad's program for training previously certified dispatchers, including all of the following information:\n\n(i) As provided for in \u00a7 245.119(i), each railroad must have a program for the ongoing education of its dispatchers to ensure that they maintain the necessary knowledge concerning relevant Federal safety regulations, operating rules and practices, familiarity with physical characteristics of the territory, and the dispatching systems and technology. The railroad must describe in this section how it will ensure that its dispatchers remain knowledgeable concerning the safe discharge of their responsibilities so as to comply with the standard set forth in \u00a7 245.119(i).\n\n(ii) In accordance with the requirements in \u00a7 245.119(i), this section must contain sufficient detail to permit effective evaluation of the railroad's training program in terms of the subject matters covered, the frequency and duration of the training sessions (including the interval between attendance at such trainings), the training environment employed (for example, use of classroom, use of computer-based training, use of film or slide presentations, and use of on-the-job training), and which aspects of the program are voluntary or mandatory.\n\n(iii) How the training will address a certified dispatcher's loss of knowledge over time.\n\n(iv) How the training will address changed circumstances over time such as the introduction of new or modified technology including software modifications to dispatch systems and related signal and train control systems, new operating rule books, or significant changes in operations including alteration in the territory dispatchers are authorized to work over.\n\n(v) A plan for familiarization training that addresses how long a person can be absent from dispatching on a territory before needing to be requalified on that territory (a time period that cannot exceed 12 months), and once that threshold is reached, how the person will acquire the needed familiarization training.\n\n(vi) How the railroad will administer the training of previously certified dispatchers who have had their certification expire. If a railroad's certification program fails to specify how it will train these dispatchers, then the railroad shall require these dispatchers to successfully complete the railroad's entire training program.\n\n(3)  Section 3 of the program: testing and evaluating persons previously certified.  The third section of the certification program must contain information about the railroad's program for testing and evaluating previously certified dispatchers including all of the following information:\n\n(i) The railroad must describe in this section how it will ensure that its dispatchers demonstrate their knowledge concerning the safe discharge of their responsibilities so as to comply with the standards set forth in \u00a7 245.121.\n\n(ii) The railroad must describe in this section how it will have ongoing testing and evaluation to ensure that its dispatchers have the necessary visual and hearing acuity as provided for in \u00a7\u00a7 245.117 and 245.118. This section must also address how the railroad will ensure that its medical examiners have sufficient information concerning the railroad's operations, as well as the dispatcher's safety-related tasks, to effectively form appropriate conclusions about the ability of a particular individual to safely perform as a dispatcher.\n\n(4)  Section 4 of the program: training, testing, and evaluating persons not previously certified.  Unless a railroad has made an election not to accept responsibility for conducting the initial training of dispatchers, the fourth section of the certification program must contain information about the railroad's program for educating, testing, and evaluating persons not previously certified as dispatchers including all of the following information:\n\n(i) As provided for in \u00a7 245.119(c), a railroad that is issuing an initial dispatcher certification to a person must have a program for the training, testing, and evaluation of its dispatchers to ensure that they acquire the necessary knowledge and skills. A railroad must describe in this section how it will ensure that its dispatchers will acquire sufficient knowledge and skills and demonstrate their knowledge and skills concerning the safe discharge of their responsibilities.\n\n(ii) This section must contain the same level of detail about the initial training program and the testing and evaluation of previously uncertified persons as is required for previously certified dispatchers in paragraphs (b)(2) and (3) of this section (Sections 2 and 3 of the program).\n\n(iii) Railroads that elect to rely on other entities to conduct training away from the railroad's own territory and dispatching systems and technology must indicate how the student will be provided with the required training on the physical characteristics of the railroad's territory and the railroad's dispatching systems and technology.\n\n(iv) How the railroad will administer the training of previously uncertified persons with extensive dispatching experience. If a railroad's certification program fails to specify how it will train these dispatchers, then the railroad shall require these dispatchers to successfully complete the railroad's entire training program.\n\n(5)  Section 5 of the program: monitoring operational performance by certified dispatchers.  The fifth section of the certification program must contain information about the railroad's program for monitoring the operational performance of its certified dispatchers including all of the following information:\n\n(i) Section 245.123 requires that a railroad perform ongoing monitoring of its dispatchers and that each dispatcher has an annual unannounced compliance test. A railroad must describe in this section how it will ensure that the railroad is monitoring that its dispatchers demonstrate their skills concerning the safe discharge of their responsibilities.\n\n(ii) A railroad must describe the scoring system used by the railroad during an operational monitoring observation or unannounced compliance test administered in accordance with the procedures required under \u00a7 245.123.\n\n(6)  Section 6 of the program: procedures for routine administration of the dispatcher certification program.  The final section of the certification program must contain a summary of how the railroad's program and procedures will implement the various aspects of the regulatory provisions in this part that relate to routine administration of its certification program for dispatchers. Specifically, this section must address the procedural aspects of the following provisions and must describe the manner in which the railroad will implement its program so as to comply with all of the following provisions:\n\n(i) Section 245.301 which provides that each railroad must have procedures for review and comment on adverse information.\n\n(ii) Sections 245.111, 245.113, 245.115, and 245.303 which require a railroad to have procedures for evaluating data concerning prior safety conduct as a motor vehicle operator and as a railroad worker.\n\n(iii) Sections 245.109, 245.201, and 245.301 which place a duty on the railroad to make a series of determinations. When describing how it will implement its program to comply with these sections, a railroad must describe: the procedures it will utilize to ensure that all of the necessary determinations have been made in a timely fashion; who will be authorized to conclude that a person will or will be not certified; and how the railroad will communicate adverse decisions.\n\n(iv) Sections 245.109, 245.117, 245.118, 245.119, and 245.121 which place a duty on the railroad to make a series of determinations. When describing how it will implement its program to comply with these sections, a railroad must describe how it will document the factual basis the railroad relied on in making determinations under these sections.\n\n(v) Section 245.125 which permits reliance on certification determinations made by other railroads.\n\n(vi) Sections 245.207 and 245.307 which contain the requirements for replacing lost certificates and the conduct of certification revocation proceedings."], ["49:49:4.1.1.1.39.2.137.5", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.109 Determinations required for certification and recertification.", "FRA", "", "", "", "(a) After FRA has approved a railroad's dispatcher certification program, the railroad, prior to initially certifying or recertifying any person as a dispatcher, shall, in accordance with its FRA-approved program, determine in writing that:\n\n(1) The individual meets the prior safety conduct eligibility requirements of \u00a7\u00a7 245.111 and 245.113;\n\n(2) The individual meets the eligibility requirements of \u00a7\u00a7 245.115 and 245.303;\n\n(3) The individual meets the visual and hearing acuity standards of \u00a7\u00a7 245.117 and 245.118;\n\n(4) The individual has the necessary knowledge, as demonstrated by successfully completing a test that meets the requirements of \u00a7 245.121; and\n\n(5) If applicable, the individual has completed a training program that meets the requirements of \u00a7 245.119.\n\n(b) Nothing in this section, \u00a7 245.111, or \u00a7 245.113 shall be construed to prevent persons subject to this part from entering into an agreement that results in a railroad obtaining the information needed for compliance with this subpart in a different manner than that prescribed in \u00a7 245.111 or \u00a7 245.113."], ["49:49:4.1.1.1.39.2.137.6", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.111 Prior safety conduct as motor vehicle operator.", "FRA", "", "", "", "(a) Except as provided in paragraphs (b) through (e) of this section, after FRA has approved a railroad's dispatcher certification program, the railroad, prior to initially certifying or recertifying any person as a dispatcher, shall determine that the person meets the eligibility requirements of this section involving prior conduct as a motor vehicle operator.\n\n(b) A railroad shall initially certify a person as a dispatcher for 60 days if the person:\n\n(1) Requested the information required by paragraph (g) of this section at least 60 days prior to the date of the decision to certify that person; and\n\n(2) Otherwise meets the eligibility requirements provided in \u00a7 245.109(a)(1) through (5).\n\n(c) A railroad shall recertify a person as a dispatcher for 60 days from the expiration date of that person's certification if the person:\n\n(1) Requested the information required by paragraph (g) of this section at least 60 days prior to the date of the decision to recertify that person; and\n\n(2) Otherwise meets the eligibility requirements provided in \u00a7 245.109(a)(1) through (5).\n\n(d) Except as provided in paragraph (e) of this section, if a railroad who certified or recertified a person for 60 days pursuant to paragraph (b) or (c) of this section does not obtain and evaluate the information requested pursuant to paragraph (g) of this section within those 60 days, that person will be ineligible to perform as a dispatcher until the information can be evaluated by the railroad.\n\n(e) If a person requests the information required pursuant to paragraph (g) of this section but is unable to obtain it, that person or the railroad certifying or recertifying that person may petition for a waiver of the requirements of paragraph (a) of this section in accordance with the provisions of part 211 of this chapter. A railroad shall certify or recertify a person during the pendency of the waiver request if the person otherwise meets the eligibility requirements provided in \u00a7 245.109(a)(1) through (5).\n\n(f) Except for persons designated as dispatchers under \u00a7 245.105(c) or (d) or for persons covered by paragraph (j) of this section, each person seeking certification or recertification under this part shall, no more than one year prior to the date of the railroad's decision on certification or recertification:\n\n(1) Take the actions required by paragraphs (g) through (i) of this section to make information concerning their driving record available to the railroad that is considering such certification or recertification; and\n\n(2) Take any additional actions, including providing any necessary consent required by State, Federal, or foreign law to make information concerning their driving record available to that railroad.\n\n(g) Each person seeking certification or recertification under this part shall request, in writing, that the chief of each driver licensing agency identified in paragraph (h) of this section provide a copy of that agency's available information concerning their driving record to the railroad that is considering such certification or recertification.\n\n(h) Each person shall request the information required under paragraph (g) of this section from:\n\n(1) The chief of the driver licensing agency of any jurisdiction, including a State or foreign country, which last issued that person a driver's license; and\n\n(2) The chief of the driver licensing agency of any other jurisdiction, including states or foreign countries, where the person held a driver's license within the preceding three years.\n\n(i) If advised by the railroad that a driver licensing agency has informed the railroad that additional information concerning that person's driving history may exist in the files of a State agency or foreign country not previously contacted in accordance with this section, such person shall:\n\n(1) Request in writing that the chief of the driver licensing agency which compiled the information provide a copy of the available information to the prospective certifying railroad; and\n\n(2) Take any additional action required by State, Federal, or foreign law to obtain that additional information.\n\n(j) Any person who has never obtained a motor vehicle driver's license is not required to comply with the provisions of paragraph (g) of this section but shall notify the railroad of that fact in accordance with procedures established by the railroad in its certification program.\n\n(k) Each certified dispatcher or person seeking initial certification shall report motor vehicle incidents described in paragraphs (m)(1) and (2) of this section to the certifying railroad within 48 hours of being convicted for, or completed State action to cancel, revoke, suspend, or deny a motor vehicle driver's license for, such violations. For purposes of this paragraph (k) and paragraph (m) of this section, \u201cState action\u201d means action of the jurisdiction that has issued the motor vehicle driver's license, including a foreign country. For purposes of dispatcher certification, no railroad shall require reporting earlier than 48 hours after the conviction, or completed State action to cancel, revoke, suspend, or deny a motor vehicle driver's license.\n\n(l) When evaluating a person's motor vehicle driving record, a railroad shall not consider information concerning motor vehicle driving incidents that occurred:\n\n(1) Prior to July 22, 2024;\n\n(2) More than three years before the date of the railroad's certification decision; or\n\n(3) At a time other than that specifically provided for in \u00a7 245.111, \u00a7 245.113, \u00a7 245.115, or \u00a7 245.303.\n\n(m) When evaluating a person's motor vehicle driving record, a railroad shall only consider information concerning the following types of motor vehicle incidents:\n\n(1) A conviction for, or completed State action to cancel, revoke, suspend, or deny a motor vehicle driver's license for operating a motor vehicle while under the influence of, or impaired by, alcohol or a controlled substance; or\n\n(2) A conviction for, or completed State action to cancel, revoke, suspend, or deny a motor vehicle driver's license for refusal to undergo such testing as is required by State or foreign law when a law enforcement official seeks to determine whether a person is operating a vehicle while under the influence of alcohol or a controlled substance.\n\n(n) If such an incident, described in paragraph (m) of this section, is identified:\n\n(1) The railroad shall provide the data to the railroad's DAC, together with any information concerning the person's railroad service record, and shall refer the person for evaluation to determine if the person has an active substance abuse disorder.\n\n(2) The person shall cooperate in the evaluation and shall provide any requested records of prior counseling or treatment for review exclusively by the DAC in the context of such evaluation.\n\n(3) If the person is evaluated as not currently affected by an active substance abuse disorder, the subject data shall not be considered further with respect to certification. However, the railroad shall, on recommendation of the DAC, condition certification upon participation in any needed aftercare and/or follow-up testing for alcohol or drugs deemed necessary by the DAC consistent with the technical standards specified in 49 CFR part 219, subpart H, as well as 49 CFR part 40.\n\n(4) If the person is evaluated as currently affected by an active substance abuse disorder, the provisions of \u00a7 245.115(c) will apply.\n\n(5) If the person fails to comply with the requirements of paragraph (n)(2) of this section, the person shall be ineligible to perform as a certified dispatcher until such time as the person complies with the requirements.\n\n(o) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section."], ["49:49:4.1.1.1.39.2.137.7", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.113 Prior safety conduct with other railroads.", "FRA", "", "", "", "(a) After FRA has approved a railroad's dispatcher certification program, the railroad shall determine, prior to issuing any person a dispatcher certificate, that the certification candidate meets the eligibility requirements of this section.\n\n(b) If the certification candidate has not been employed or certified by any other railroad in the previous five years, they do not have to submit a request in accordance with paragraph (c) of this section, but they must notify the railroad of this fact in accordance with procedures established by the railroad in its certification program.\n\n(c) Except as provided for in paragraph (b) of this section, each person seeking certification or recertification under this part shall submit a written request to each railroad that employed or certified the person within the previous five years to provide the following information to the railroad that is considering whether to certify or recertify that person as a dispatcher:\n\n(1) Information about that person's compliance with \u00a7 245.111 within the three years preceding the date of the request;\n\n(2) Information about that person's compliance with \u00a7 245.115 within the five years preceding the date of the request; and\n\n(3) Information about that person's compliance with \u00a7 245.303 within the five years preceding the date of the request.\n\n(d) Each person submitting a written request required by paragraph (c) of this section shall:\n\n(1) Submit the request no more than one year before the date of the railroad's decision on certification or recertification; and\n\n(2) Take any additional actions, including providing any consent required by State or Federal law to make information concerning their service record available to the railroad.\n\n(e) Within 30 days after receipt of a written request that complies with paragraph (c) of this section, a railroad shall provide the information requested to the railroad designated in the written request.\n\n(f) If a railroad is unable to provide the information requested within 30 days after receipt of a written request that complies with paragraph (c) of this section, the railroad shall provide an explanation, in writing, of why it cannot provide the information within the requested time frame. If the railroad will ultimately be able to provide the requested information, the explanation shall state approximately how much more time the railroad needs to supply the requested information. If the railroad will not be able to provide the requested information, the explanation shall provide an adequate explanation for why it cannot provide this information. Copies of this explanation shall be provided to the railroad designated in the written request and to the person who submitted the written request for information.\n\n(g) When evaluating a person's prior safety conduct with a different railroad, a railroad shall not consider information concerning prior safety conduct that occurred:\n\n(1) Prior to July 22, 2024; or\n\n(2) At a time other than that specifically provided for in \u00a7 245.111, \u00a7 245.113, \u00a7 245.115, or \u00a7 245.303.\n\n(h) Each railroad shall adopt and comply with a program that complies with the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program that complies with the requirements of this subject, that person shall be considered to have violated the requirements of this section."], ["49:49:4.1.1.1.39.2.137.8", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.115 Substance abuse disorders and alcohol drug rules compliance.", "FRA", "", "", "", "(a)  Eligibility determination.  After FRA has approved a railroad's dispatcher certification program, the railroad shall determine, prior to issuing any person a dispatcher certificate, that the person meets the eligibility requirements of this section.\n\n(b)  Documentation.  In order to make the determination required under paragraph (c) of this section, a railroad shall have on file documents pertinent to that determination, including a written document from its DAC which states their professional opinion that the person has been evaluated as not currently affected by a substance abuse disorder or that the person has been evaluated as affected by an active substance abuse disorder.\n\n(c)  Fitness requirement.  (1) A person who has an active substance abuse disorder shall be denied certification or recertification as a dispatcher.\n\n(2) Except as provided for in paragraph (f) of this section, a certified dispatcher who is determined to have an active substance abuse disorder shall be ineligible to hold certification. Consistent with other provisions of this part, certification may be reinstated as provided in paragraph (e) of this section.\n\n(3) In the case of a current employee of a railroad evaluated as having an active substance abuse disorder (including a person identified under the procedures of \u00a7 245.111), the employee may, if otherwise eligible, voluntarily self-refer for substance abuse counseling or treatment under the policy required by \u00a7 219.1001(b)(1) of this chapter; and the railroad shall then treat the substance abuse evaluation as confidential except with respect to ineligibility for certification.\n\n(d)  Prior alcohol/drug conduct; Federal rule compliance.  (1) In determining whether a person may be or remain certified as a dispatcher, a railroad shall consider conduct described in paragraph (d)(2) of this section that occurred within a period of five consecutive years prior to the review. A review of certification shall be initiated promptly upon the occurrence and documentation of any incident of conduct described in this paragraph (d).\n\n(2) A railroad shall consider any violation of \u00a7 219.101 or \u00a7 219.102 of this chapter and any refusal to provide a breath or body fluid sample for testing under the requirements of part 219 of this chapter when instructed to do so by a railroad representative.\n\n(3) A period of ineligibility described in this section shall begin:\n\n(i) For a person not currently certified, on the date of the railroad's written determination that the most recent incident has occurred; or\n\n(ii) For a person currently certified, on the date of the railroad's notification to the person that recertification has been denied or certification has been suspended.\n\n(4) The period of ineligibility described in this section shall be determined in accordance with the following standards:\n\n(i) In the case of one violation of \u00a7 219.102 of this chapter, the person shall be ineligible to hold a certificate during evaluation and any required primary treatment as described in paragraph (e) of this section. In the case of two violations of \u00a7 219.102 of this chapter, the person shall be ineligible to hold a certificate for a period of two years. In the case of more than two such violations, the person shall be ineligible to hold a certificate for a period of five years.\n\n(ii) In the case of one violation of \u00a7 219.102 of this chapter and one violation of \u00a7 219.101 of this chapter, the person shall be ineligible to hold a certificate for a period of three years.\n\n(iii) In the case of one violation of \u00a7 219.101 of this chapter, the person shall be ineligible to hold a certificate for a period of nine months (unless identification of the violation was through a qualifying referral program described in \u00a7 219.1001 of this chapter and the dispatcher waives investigation, in which case the certificate shall be deemed suspended during evaluation and any required primary treatment as described in paragraph (e) of this section). In the case of two or more violations of \u00a7 219.101 of this chapter, the person shall be ineligible to hold a certificate for a period of five years.\n\n(iv) If a person refuses to provide a breath or body fluid sample for testing under the requirements of part 219 of this chapter when instructed to do so by a railroad representative, the person shall be ineligible to hold a certificate for a period of nine months.\n\n(e)  Future eligibility to hold certificate following alcohol/drug violation.  The following requirements apply to a person who has been denied certification or who has had their certification suspended or revoked as a result of conduct described in paragraph (d) of this section:\n\n(1) The person shall not be eligible for grant or reinstatement of the certificate unless and until the person has:\n\n(i) Been evaluated by a SAP to determine if the person currently has an active substance abuse disorder;\n\n(ii) Successfully completed any program of counseling or treatment determined to be necessary by the SAP prior to return to service; and\n\n(iii) In accordance with the testing procedures of 49 CFR part 219, subpart H, has had a return-to-duty alcohol test with an alcohol concentration of less than .02 and a return-to-duty body fluid sample that tested negative for controlled substances.\n\n(2) A dispatcher placed in service or returned to service under the conditions described in paragraph (e)(1) of this section shall continue in any program of counseling or treatment deemed necessary by the SAP and shall be subject to a reasonable program of follow-up alcohol and drug testing without prior notice for a period of not more than five years following return to service. Follow-up tests shall include not fewer than six alcohol tests and six drug tests during the first year following return to service.\n\n(3) Return-to-duty and follow-up alcohol and drug tests shall be performed consistent with the requirements of 49 CFR part 219, subpart H.\n\n(4) This paragraph (e) does not create an entitlement to utilize the services of a railroad SAP, to be afforded leave from employment for counseling or treatment, or to employment as a dispatcher. Nor does it restrict any discretion available to the railroad to take disciplinary action based on conduct described herein.\n\n(f)  Confidentiality protected.  Nothing in this part shall affect the responsibility of the railroad under \u00a7 219.1003(f) of this chapter to treat qualified referrals for substance abuse counseling and treatment as confidential; and the certification status of a dispatcher who is successfully assisted under the procedures of that section shall not be adversely affected. However, the railroad shall include in its referral policy a provision that, at least with respect to a certified dispatcher or a candidate for certification, the policy of confidentiality is waived (to the extent that the railroad shall receive from the SAP or DAC official notice of the substance abuse disorder and shall suspend or revoke the certification, as appropriate) if the person at any time refuses to cooperate in a recommended course of counseling or treatment.\n\n(g)  Complying with certification program.  Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section."], ["49:49:4.1.1.1.39.2.137.9", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "B", "Subpart B\u2014Program and Eligibility Requirements", "", "\u00a7 245.117 Visual acuity.", "FRA", "", "", "", "(a) After FRA has approved a railroad's dispatcher certification program, the railroad shall determine, prior to issuing any person a dispatcher certificate, that the person meets the standards for visual acuity prescribed in this section and appendix B to this part.\n\n(b) Any examination required under this section shall be performed by or under the supervision of a medical examiner or a licensed physician's assistant.\n\n(c) Except as provided in paragraph (d) of this section, each dispatcher shall have visual acuity that meets or exceeds the following thresholds:\n\n(1) For distant viewing, either:\n\n(i) Distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses; or\n\n(ii) Distant visual acuity separately corrected to at least 20/40 (Snellen) with corrective lenses and distant binocular acuity of at least 20/40 (Snellen) in both eyes with or without corrective lenses;\n\n(2) A field of vision of at least 70 degrees in the horizontal meridian in each eye; and\n\n(3) The ability to recognize and distinguish between the colors of railroad signals as demonstrated by successfully completing one of the tests in appendix B to this part.\n\n(d) A person not meeting the thresholds in paragraph (c) of this section shall, upon request of the certification candidate, be subject to further medical evaluation by a railroad's medical examiner to determine that person's ability to safely perform as a dispatcher. In such cases, the following procedures will apply:\n\n(1) In accordance with the guidance prescribed in appendix B to this part, a person is entitled to:\n\n(i) One retest without making any showing; and\n\n(ii) An additional retest if the person provides evidence that circumstances have changed since the last test to the extent that the person may now be able to safely perform as a dispatcher.\n\n(2) The railroad shall provide its medical examiner with a copy of this part, including all appendices.\n\n(3) If, after consultation with a railroad officer, the medical examiner concludes that, despite not meeting the threshold(s) in paragraph (c) of this section, the person has the ability to safely perform as a dispatcher, the railroad may conclude that the person satisfies the visual acuity requirements of this section to be a certified dispatcher. Such certification will be conditioned on any special restrictions the medical examiner determines in writing to be necessary.\n\n(e) To make the determination required under paragraph (a) of this section, a railroad shall have on file the following for each certification candidate:\n\n(1) A medical examiner's certificate that the candidate has been medically examined and either does or does not meet the visual acuity standards prescribed in paragraph (c) of this section.\n\n(2) If needed under paragraph (d) of this section, a medical examiner's written professional opinion which states the basis for their determination that:\n\n(i) The candidate can be certified, under certain conditions if necessary, even though the candidate does not meet the visual acuity standards prescribed in paragraph (c) of this section; or\n\n(ii) The candidate's visual acuity prevents the candidate from being able to safely perform as a dispatcher.\n\n(f) If the examination required under this section shows that the person needs corrective lenses to meet the standards for visual acuity prescribed in this section and appendix B to this part, that person shall use corrective lenses at all times while performing as a dispatcher unless the railroad's medical examiner subsequently determines in writing that the person can safely perform as a dispatcher without corrective lenses.\n\n(g) When a certified dispatcher becomes aware that their vision has deteriorated, they shall notify the railroad's medical department or other appropriate railroad official of the deterioration. Such notification must occur prior to performing any subsequent service as a dispatcher. The individual cannot return to service as a dispatcher until they are reexamined and determined by the railroad's medical examiner to satisfy the visual acuity standards prescribed in this section and appendix B to this part.\n\n(h) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section."], ["49:49:4.1.1.1.39.3.137.1", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "C", "Subpart C\u2014Administration of the Certification Program", "", "\u00a7 245.201 Time limitations for certification.", "FRA", "", "", "", "(a) After FRA approves a railroad's dispatcher certification program, that railroad shall not certify or recertify a person as a dispatcher if the railroad is making:\n\n(1) A determination concerning eligibility under \u00a7\u00a7 245.111, 245.113, 245.115, and 245.303 and the eligibility data being relied on was furnished more than one year before the date of the railroad's certification decision;\n\n(2) A determination concerning visual or hearing acuity and the medical examination being relied on was conducted more than 450 days before the date of the railroad's certification decision; or\n\n(3) A determination concerning demonstrated knowledge and the knowledge examination being relied on was conducted more than one year before the date of the railroad's certification decision, or more than two years before the date of the railroad's certification decision if the railroad administers a knowledge testing program pursuant to \u00a7 245.121 at intervals that do not exceed two years.\n\n(b) The time limitations of paragraph (a) of this section do not apply to a railroad that is making a certification decision in reliance on determinations made by another railroad in accordance with \u00a7 245.125.\n\n(c) Except if a person is designated as a certified dispatcher under \u00a7 245.105(c) or (d), no railroad shall certify a person as a dispatcher for an interval of more than three years.\n\n(d) Each railroad shall issue each certified dispatcher a certificate that complies with \u00a7 245.207 no later than 30 days from the date of its decision to certify or recertify that person."], ["49:49:4.1.1.1.39.3.137.2", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "C", "Subpart C\u2014Administration of the Certification Program", "", "\u00a7 245.203 Retaining information supporting determinations.", "FRA", "", "", "", "(a) After FRA approves a railroad's dispatcher certification program, any time the railroad issues, denies, or revokes a certificate after making the determinations required under \u00a7 245.109, it shall maintain a record for each certified dispatcher and certification candidate. Each record shall contain the information, described in paragraph (b) of this section, that the railroad relied on in making the determinations required under \u00a7 245.109.\n\n(b) A railroad shall retain the following information:\n\n(1) Relevant data from the railroad's records concerning the person's prior safety conduct and eligibility;\n\n(2) Relevant data furnished by another railroad;\n\n(3) Relevant data furnished by a governmental agency concerning the person's motor vehicle driving record;\n\n(4) Relevant data furnished by the person seeking certification concerning their eligibility;\n\n(5) The relevant test results data concerning visual and hearing acuity;\n\n(6) If applicable, the relevant data concerning the professional opinion of the railroad's medical examiner on the adequacy of the person's visual or hearing acuity;\n\n(7) Relevant data from the railroad's records concerning the person's success or failure on knowledge test(s) under \u00a7 245.121;\n\n(8) A sample copy of the written knowledge test or tests administered; and\n\n(9) The relevant data from the railroad's records concerning the person's success or failure on unannounced tests the railroad performed to monitor the dispatcher's performance in accordance with \u00a7 245.123.\n\n(c) If a railroad is relying on successful completion of an approved training program conducted by another entity, the relying railroad shall maintain a record for each certification candidate that contains the relevant data furnished by the training entity concerning the person's demonstration of knowledge and relied on by the railroad in making its determinations.\n\n(d) If a railroad is relying on a certification decision initially made by another railroad, the relying railroad shall maintain a record for each certification candidate that contains the relevant data furnished by the other railroad which it relied on in making its determinations.\n\n(e) All records required under this section shall be retained by the railroad for a period of six years from the date of the certification, recertification, denial, or revocation decision and shall, upon request, be made available to FRA representatives in a timely manner.\n\n(f) It shall be unlawful for any railroad to knowingly or any individual to willfully:\n\n(1) Make, cause to be made, or participate in the making of a false entry on the record(s) required by this section; or\n\n(2) Otherwise falsify such records through material misstatement, omission, or mutilation.\n\n(g) Nothing in this section precludes a railroad from maintaining the information required to be retained under this section in an electronic format provided that:\n\n(1) The railroad maintains an information technology security program adequate to ensure the integrity of the electronic data storage system, including the prevention of unauthorized access to the program logic or individual records;\n\n(2) The program and data storage system must be protected by a security system that utilizes an employee identification number and password, or a comparable method, to establish appropriate levels of program access meeting all of the following standards:\n\n(i) No two individuals have the same electronic identity; and\n\n(ii) A record cannot be deleted or altered by any individual after the record is certified by the employee who created the record;\n\n(3) Any amendment to a record is either:\n\n(i) Electronically stored apart from the record that it amends; or\n\n(ii) Electronically attached to the record as information without changing the original record;\n\n(4) Each amendment to a record uniquely identifies the person making the amendment; and\n\n(5) The system employed by the railroad for data storage permits reasonable access and retrieval of the information which can be easily produced in an electronic or printed format that can be:\n\n(i) Provided to FRA representatives in a timely manner; and\n\n(ii) Authenticated by a designated representative of the railroad as a true and accurate copy of the railroad's records if requested to do so by an FRA representative."], ["49:49:4.1.1.1.39.3.137.3", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "C", "Subpart C\u2014Administration of the Certification Program", "", "\u00a7 245.205 List of certified dispatchers and recordkeeping.", "FRA", "", "", "", "(a) After a railroad's certification program has received its initial approval from FRA, pursuant to \u00a7 245.103(f)(1), the railroad must maintain a list of each person who is currently certified as a dispatcher by the railroad. The list must include the date of the railroad's certification decision and the date the person's certification expires.\n\n(b) The list shall:\n\n(1) Be updated at least annually;\n\n(2) Be made available, upon request, to FRA representatives in a timely manner; and\n\n(3) Be available either:\n\n(i) In electronic format pursuant to paragraph (c) of this section; or\n\n(ii) At the divisional or regional headquarters of the railroad.\n\n(c) If a railroad elects to maintain its list in an electronic format, it must:\n\n(1) Maintain an information technology security program adequate to ensure the integrity of the electronic data storage system, including the prevention of unauthorized access to the program logic or the list;\n\n(2) Have its program and data storage system protected by a security system that utilizes an employee identification number and password, or a comparable method, to establish appropriate levels of program access meeting all of the following standards:\n\n(i) No two individuals have the same electronic identity; and\n\n(ii) An entry on the list cannot be deleted or altered by any individual after the entry is certified by the employee who created the entry;\n\n(3) Have any amendment to the list either:\n\n(i) Electronically stored apart from the entry on the list that it amends; or\n\n(ii) Electronically attached to the entry on the list as information without changing the original entry;\n\n(4) Ensure that each amendment to the list uniquely identifies the person making the amendment; and\n\n(5) Ensure that the system employed for data storage permits reasonable access and retrieval of the information which can be easily produced in an electronic or printed format that can be:\n\n(i) Provided to FRA representatives in a timely manner; and\n\n(ii) Authenticated by a designated representative of the railroad as a true and accurate copy of the railroad's records if requested to do so by an FRA representative.\n\n(d) It shall be unlawful for any railroad to knowingly or any individual to willfully:\n\n(1) Make, cause to be made, or participate in the making of a false entry on the list required by this section; or\n\n(2) Otherwise falsify such list through material misstatement, omission, or mutilation."], ["49:49:4.1.1.1.39.3.137.4", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "C", "Subpart C\u2014Administration of the Certification Program", "", "\u00a7 245.207 Certificate requirements.", "FRA", "", "", "", "(a) Each person who becomes a certified dispatcher in accordance with this part shall be issued a paper or electronic certificate that must:\n\n(1) Identify the railroad or parent company that is issuing the certificate;\n\n(2) Indicate that it is a dispatcher certificate;\n\n(3) Provide the following information about the certified person:\n\n(i) Name;\n\n(ii) Employee identification number; and\n\n(iii) Either a physical description or photograph of the person;\n\n(4) Identify any conditions or limitations, including conditions to ameliorate visual or hearing acuity deficiencies, that restrict, limit, or alter the person's abilities to work as a dispatcher;\n\n(5) Show the effective date of the certification;\n\n(6) Show the expiration date of the certification unless the certificate was issued pursuant to \u00a7 245.105(c) or (d);\n\n(7) Be signed by an individual designated in accordance with paragraph (b) of this section; and\n\n(8) Be electronic or be of sufficiently small size to permit being carried in an ordinary pocket wallet.\n\n(b) Each railroad shall designate in writing any person it authorizes to sign the certificates described in this section. The designation shall identify such persons by name or job title.\n\n(c) Nothing in this section shall prohibit any railroad from including additional information on the certificate or supplementing the certificate through other documents.\n\n(d) It shall be unlawful for any railroad to knowingly or any individual to willfully:\n\n(1) Make, cause to be made, or participate in the making of a false entry on a certificate; or\n\n(2) Otherwise falsify a certificate through material misstatement, omission, or mutilation.\n\n(e) Except as provided for in paragraph (g) of this section, each certified dispatcher shall:\n\n(1) Have their certificate in their possession while on duty as a dispatcher; and\n\n(2) Display their certificate upon a request from:\n\n(i) An FRA representative;\n\n(ii) A state inspector authorized under part 212 of this chapter;\n\n(iii) An officer of the issuing railroad; or\n\n(iv) An officer of the dispatcher's employer if the dispatcher is not employed by the issuing railroad.\n\n(f) If a dispatcher's certificate is lost, stolen, or mutilated, the railroad shall promptly replace the certificate at no cost to the dispatcher.\n\n(g) A certified dispatcher is exempt from the requirements of paragraph (e) of this section if:\n\n(1) The railroad made its certification or recertification decision within the last 30 days and the dispatcher has not yet received their certificate; or\n\n(2) The dispatcher's certificate was lost, stolen, or mutilated, and the railroad has not yet issued a replacement certificate to the dispatcher.\n\n(h) Any dispatcher who is notified or called to serve as a dispatcher and such service would cause the dispatcher to exceed certificate limitations, set forth in accordance with subpart B of this part, shall immediately notify the railroad that they are not authorized to perform that anticipated service and it shall be unlawful for the railroad to require such service.\n\n(i) Nothing in this section shall be deemed to alter a certified dispatcher's duty to comply with other provisions of this chapter concerning railroad safety."], ["49:49:4.1.1.1.39.3.137.5", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "C", "Subpart C\u2014Administration of the Certification Program", "", "\u00a7 245.213 Multiple certifications.", "FRA", "", "", "", "(a) A person who holds a dispatcher certificate may also be certified in other crafts, such as a locomotive engineer or conductor.\n\n(b) A railroad that issues multiple certificates to a person, shall, to the extent possible, coordinate the expiration date of those certificates.\n\n(c) Paragraphs (c)(1) through (3) of this section apply to persons who are currently certified as a dispatcher for multiple railroads or are seeking to become certified dispatchers for multiple railroads.\n\n(1) A person who holds a current dispatcher certificate from more than one railroad shall immediately notify the other certifying railroad(s) if they are denied dispatcher certification or recertification under \u00a7 245.301 by another railroad or has their dispatcher certification suspended or revoked under \u00a7 245.307 by another railroad.\n\n(2) If a person has their dispatcher certification suspended or revoked by a railroad under \u00a7 245.307, they may not work as a dispatcher for any other railroad during the period that their certification is suspended or revoked.\n\n(3) If a person has their dispatcher certification suspended or revoked by a railroad under \u00a7 245.307, they must notify any railroad that they are seeking dispatcher certification from that their dispatcher certification is currently suspended or revoked by another railroad.\n\n(d) Paragraphs (d)(1) through (4) of this section apply to persons who are currently certified as a dispatcher and also currently certified in another craft, such as a locomotive engineer or conductor.\n\n(1) If a person's dispatcher certification is revoked under \u00a7 245.307 for a violation of \u00a7 245.303(e)(7), they may not work in another certified craft, such as a locomotive engineer or conductor, for any railroad during the period of revocation.\n\n(2) If a person's dispatcher certification is revoked under \u00a7 245.307 for a violation of \u00a7 245.303(e)(1) through (6), they may work in another certified craft, such as a locomotive engineer or conductor, during the period of revocation.\n\n(3) If any of a person's non-dispatcher certifications are revoked for failure to comply with \u00a7 219.101 of this chapter, they may not work as a dispatcher for any railroad during the period of revocation.\n\n(4) If any of a person's non-dispatcher certifications are revoked for any reason other than a failure to comply with \u00a7 219.101 of this chapter, they may work as a dispatcher during the period of revocation.\n\n(e) A person who has had their dispatcher certification revoked for failure to comply with \u00a7 219.101 of this chapter may not obtain any other certification pursuant to this chapter from any railroad during the period of revocation.\n\n(f) A person who has had any of their non-dispatcher certifications revoked for failure to comply with \u00a7 219.101 of this chapter, may not obtain a dispatcher certification pursuant to this part from any railroad during the period of revocation.\n\n(g) A railroad that denies a person dispatcher certification or recertification under \u00a7 245.301 shall not, solely on the basis of that denial, deny or revoke that person's non-dispatcher certifications or recertifications.\n\n(h) A railroad that denies a person any non-dispatcher certification or recertification pursuant to this chapter shall not, solely on the basis of that denial, deny or revoke that person's dispatcher certification or recertification.\n\n(i) In lieu of issuing multiple certificates, a railroad may issue one certificate to a person who is certified in multiple crafts as long as the single certificate complies with all of the certificate requirements for those crafts.\n\n(j) A person who is certified in multiple crafts and who is involved in a revocable event, as described in this chapter, may only have one certificate revoked for that event. The determination by the railroad as to which certificate to revoke must be based on the work the person was performing at the time the revocable event occurred."], ["49:49:4.1.1.1.39.3.137.6", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "C", "Subpart C\u2014Administration of the Certification Program", "", "\u00a7 245.215 Railroad oversight responsibilities.", "FRA", "", "", "", "(a) No later than March 31 of each year (beginning in calendar year 2027), each Class I railroad (including the National Railroad Passenger Corporation), each railroad providing commuter service, and each Class II railroad shall conduct a formal annual review and analysis concerning the administration of its program for responding to detected instances of poor safety conduct by certified dispatchers during the prior calendar year.\n\n(b) Each review and analysis shall involve:\n\n(1) The number and nature of the instances of detected poor safety conduct including the nature of the remedial action taken in response thereto;\n\n(2) The number and nature of FRA reported train accidents attributed to poor safety performance by dispatchers; and\n\n(3) The number and type of operational monitoring test failures recorded by railroad officers who meet the requirements of \u00a7 217.9(b)(1) of this chapter.\n\n(c) Based on that review and analysis, each railroad shall determine what action(s) it will take to improve the safety of railroad operations to reduce or eliminate future incidents of that nature.\n\n(d) If requested in writing by FRA, by the president of a labor organization that represents the railroad's dispatchers, or by a railroad's certified dispatcher that is not represented by a labor organization, the railroad shall provide a report of the findings and conclusions reached during such annual review and analysis effort.\n\n(e) For reporting purposes, information about the nature of detected poor safety conduct shall be capable of segregation for study and evaluation purposes into the following categories:\n\n(1) Incidents involving failure to properly issue or apply mandatory directives when warranted.\n\n(2) Incidents involving improperly authorizing a train or on-track equipment to enter into an out-of-service or blue flag protected track.\n\n(3) Incidents involving granting permission for a train or on-track equipment to enter into established RWIC limits without authority or permission from the RWIC.\n\n(4) Incidents involving removal of blocking devices or established protection of RWIC working limits prior to the RWIC releasing the limits.\n\n(5) Incidents involving failure to properly apply blocking devices or failure to establish proper protection for specified working limits or movements of trains or on-track equipment.\n\n(6) Incidents involving granting permission for a train to enter Positive Train Control (PTC) or Cab Signal limits with inoperative or malfunctioning PTC or Cab Signal equipment.\n\n(7) Incidents involving noncompliance with part 219 of this chapter.\n\n(f) For reporting purposes, each category of detected poor safety conduct identified in paragraph (e) of this section shall be capable of being annotated to reflect the following:\n\n(1) The total number of incidents in that category;\n\n(2) The number of incidents within that total which reflect incidents requiring an FRA accident/incident report under part 225 of this chapter; and\n\n(3) The number of incidents within that total which were detected as a result of a scheduled operational monitoring effort.\n\n(g) For reporting purposes, each instance of detected poor safety conduct identified in paragraph (b) of this section shall be capable of being annotated to reflect the following:\n\n(1) The nature of the remedial action taken, and the number of events subdivided, so as to reflect which of the following actions was selected:\n\n(i) Imposition of informal discipline;\n\n(ii) Imposition of formal discipline;\n\n(iii) Provision of informal training; or\n\n(iv) Provision of formal training; and\n\n(2) If the nature of the remedial action taken was formal discipline, the number of events further subdivided so as to reflect which of the following punishments was imposed by the railroad:\n\n(i) The person was withheld from service;\n\n(ii) The person was dismissed from employment; or\n\n(iii) The person was issued demerits. If more than one form of punishment was imposed, only the punishment deemed the most severe shall be shown.\n\n(h) For reporting purposes, each instance of detected poor safety conduct identified in paragraph (b) of this section which resulted in the imposition of formal or informal discipline shall be annotated to reflect the following:\n\n(1) The number of instances in which the railroad's internal appeals process reduced the punishment initially imposed at the conclusion of its hearing; and\n\n(2) The number of instances in which the punishment imposed by the railroad was reduced by any of the following entities: The National Railroad Adjustment Board, a Public Law Board, a Special Board of Adjustment, or other body for the resolution of disputes duly constituted under the provisions of the Railway Labor Act.\n\n(i) For reporting purposes, an instance of poor safety conduct involving a person who is a certified dispatcher and is certified in another craft, such as a locomotive engineer or conductor, need only be reported once ( e.g.,  either under this section or \u00a7 240.309 or \u00a7 242.215 of this chapter). The determination as to where to report the instance of poor safety conduct should be based on the work the person was performing at the time the conduct occurred."], ["49:49:4.1.1.1.39.4.137.1", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "D", "Subpart D\u2014Denial and Revocation of Certification", "", "\u00a7 245.301 Process for denying certification.", "FRA", "", "", "", "(a) A railroad shall notify a candidate for certification or recertification of information known to the railroad that forms the basis for denying the person certification and provide the person a reasonable opportunity to explain or rebut that adverse information in writing prior to denying certification. A railroad shall provide the dispatcher candidate with any documents or records, including written statements, related to failure to meet a requirement of this part which support its pending denial decision.\n\n(b) If a railroad denies a person certification or recertification, it shall issue a decision that complies with all of the following requirements:\n\n(1) It must be in writing.\n\n(2) It must explain the basis for the railroad's denial decision.\n\n(3) It must address any explanation or rebuttal information that the certification candidate provided pursuant to paragraph (a) of this section.\n\n(4) It must include the date of the railroad's decision.\n\n(5) It must be served on the candidate no later than 10 days after the railroad's decision.\n\n(c) A railroad shall not deny the person's certification for failing to comply with a railroad operating rule or practice which constitutes a violation under \u00a7 245.303(e)(1) through (6) if sufficient evidence exists to establish that an intervening cause prevented or materially impaired the dispatcher's ability to comply with that railroad operating rule or practice."], ["49:49:4.1.1.1.39.4.137.2", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "D", "Subpart D\u2014Denial and Revocation of Certification", "", "\u00a7 245.303 Criteria for revoking certification.", "FRA", "", "", "", "(a) It shall be unlawful to fail to comply with any of the railroad rules or practices described in paragraph (e) of this section.\n\n(b) A certified dispatcher who fails to comply with a railroad rule or practice described in paragraph (e) of this section shall have their certification revoked.\n\n(c) A certified dispatcher who is assigned to monitor, pilot, or instruct a dispatcher and fails to take appropriate action to prevent a violation of a railroad rule or practice described in paragraph (e) of this section shall have their certification revoked. Appropriate action does not mean that a supervisor, pilot, or instructor must prevent a violation from occurring at all costs; the duty may be met by warning the dispatcher of a potential or foreseeable violation.\n\n(d) A certified dispatcher who is called by a railroad to perform a duty other than that of a dispatcher shall not have their dispatcher certification revoked based on actions taken or not taken while performing that duty except for violations described in paragraph (e)(7) of this section.\n\n(e) When determining whether to revoke a dispatcher's certification, a railroad shall only consider violations of its operating rules or practices that involve:\n\n(1) Failure to properly issue or apply a mandatory directive when warranted.\n\n(2) Improperly authorizing a train or on-track equipment to enter into an out-of-service or blue flag protected track.\n\n(3) Granting permission for a train or on-track equipment to enter into established RWIC limits without authority or permission from the RWIC.\n\n(4) Removal of blocking devices or established protection of RWIC working limits prior to the RWIC releasing the limits.\n\n(5) Failure to properly apply blocking devices or establish proper protection for specified working limits or movements of trains or on-track equipment.\n\n(6) Granting permission for a train to enter PTC or Cab Signal limits with inoperative or malfunctioning PTC or Cab Signal equipment.\n\n(7) Failure to comply with \u00a7 219.101 of this chapter. However, such incidents shall be considered as a violation only for the purposes of \u00a7 245.305(a)(2) and (b).\n\n(f) In making the determination as to whether to revoke a dispatcher's certification, a railroad shall only consider conduct described in paragraphs (e)(1) through (6) of this section that occurred within the three years prior to the determination.\n\n(g) If in any single incident the person's conduct contravened more than one operating rule or practice, that event shall be treated as a single violation for the purposes of this section.\n\n(h) A violation of one or more operating rules or practices described in paragraphs (e)(1) through (6) of this section that occurs during a properly conducted operational compliance test subject to the provisions of this chapter shall be counted in determining the periods of ineligibility described in \u00a7 245.305.\n\n(i) An operational test that is not conducted in compliance with this part, a railroad's operating rules, or a railroad's program under \u00a7 217.9 of this chapter, will not be considered a legitimate test of operational skill or knowledge, and will not be considered for revocation purposes.\n\n(j) Each railroad shall adopt and comply with a program meeting the requirements of this section. When any person (including, but not limited to, each railroad, railroad officer, supervisor, and employee) violates any requirement of a program which complies with the requirements of this section, that person shall be considered to have violated the requirements of this section."], ["49:49:4.1.1.1.39.4.137.3", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "D", "Subpart D\u2014Denial and Revocation of Certification", "", "\u00a7 245.305 Periods of ineligibility.", "FRA", "", "", "", "(a) The starting date for a period of ineligibility described in this section shall be:\n\n(1) For a person not currently certified, the date of the railroad's written determination that the most recent incident has occurred; or\n\n(2) For a person currently certified, the date of the railroad's notification to the person that recertification has been denied or certification has been suspended.\n\n(b) A period of ineligibility shall be determined according to the following standards:\n\n(1) In the case of a single incident involving a violation of one or more of the operating rules or practices described in \u00a7 245.303(e)(1) through (6), the person shall have their certificate revoked for a period of 30 calendar days.\n\n(2) In the case of two separate incidents involving a violation of one or more of the operating rules or practices described in \u00a7 245.303(e)(1) through (6), that occurred within 24 months of each other, the person shall have their certificate revoked for a period of six months.\n\n(3) In the case of three separate incidents involving violations of one or more of the operating rules or practices, described in \u00a7 245.303(e)(1) through (7), that occurred within 36 months of each other, the person shall have their certificate revoked for a period of one year.\n\n(4) In the case of four separate incidents involving violations of one or more of the operating rules or practices, described in \u00a7 245.303(e)(1) through (7), that occurred within 36 months of each other, the person shall have their certificate revoked for a period of three years.\n\n(5) Where, based on the occurrence of violations described in \u00a7 245.303(e)(7), different periods of ineligibility may result under the provisions of this section and \u00a7 245.115, the longest period of revocation shall control.\n\n(c) Any or all periods of revocation provided in paragraph (b) of this section may consist of training.\n\n(d) A person whose certification is denied or revoked shall be eligible for grant or reinstatement of the certificate prior to the expiration of the initial period of ineligibility only if:\n\n(1) The denial or revocation of certification in accordance with the provisions of paragraph (b) of this section is for a period of one year or less;\n\n(2) Certification is denied or revoked for reasons other than noncompliance with \u00a7 219.101 of this chapter;\n\n(3) The person is evaluated by a railroad officer and determined to have received adequate remedial training;\n\n(4) The person successfully completes any mandatory program of training or retraining, if that is determined to be necessary by the railroad prior to return to service; and\n\n(5) At least one half of the pertinent period of ineligibility specified in paragraph (b) of this section has elapsed."], ["49:49:4.1.1.1.39.4.137.4", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "D", "Subpart D\u2014Denial and Revocation of Certification", "", "\u00a7 245.307 Process for revoking certification.", "FRA", "", "", "", "(a) If a railroad determines that a dispatcher, who is currently certified by the railroad, has violated a railroad operating rule or practice described in \u00a7 245.303(e), the railroad shall revoke the dispatcher's certification in accordance with the procedures and requirements of this section.\n\n(b) Except as provided for in \u00a7 245.115(f), if a railroad acquires reliable information that a dispatcher, who is currently certified by the railroad, has violated a railroad operating rule or practice described in \u00a7 245.303(e) or \u00a7 245.115(d), the railroad shall undertake the following process to determine whether revocation of the dispatcher's certification is warranted:\n\n(1) The dispatcher's certification shall be suspended immediately.\n\n(2) Prior to or upon suspending the dispatcher's certification, the railroad shall provide the dispatcher with notice of: the reason for the suspension; the pending revocation; and an opportunity for a hearing before a presiding officer other than the investigating officer. This notice may initially be given either orally or in writing. If given orally, the notice must be subsequently confirmed in writing in a manner that conforms with the notification provisions of the applicable collective bargaining agreement. If there is no applicable collective bargaining agreement notification provision, the written notice must be made within four days of the date the certification was suspended.\n\n(3) The railroad must convene the hearing within the time frame required under the applicable collective bargaining agreement. If there is no applicable collective bargaining agreement or the applicable collective bargaining agreement does not include such a requirement, the hearing shall be convened within ten days of the date the certification is suspended unless the dispatcher requests or consents to a delay to the start of the hearing.\n\n(4) Except as provided for in paragraph (c) of this section, the railroad shall provide the dispatcher with a copy of the written information and a list of witnesses the railroad will present at the hearing at least 72 hours before the start of the hearing. If this information was provided by an employee of the railroad, the railroad shall make that employee available for examination during the hearing notwithstanding the terms of an applicable collective bargaining agreement.\n\n(5) Following the hearing, the railroad must determine, based on the record of the hearing, whether revocation of the certification is warranted and state explicitly the basis for the conclusion reached. The railroad shall have the burden of proving that revocation of the dispatcher's certification is warranted under \u00a7 245.303.\n\n(6) If the railroad determines that revocation of the dispatcher's certification is warranted, the railroad shall impose the proper period of revocation provided for in \u00a7 245.305 or \u00a7 245.115.\n\n(7) The railroad shall retain the record of the hearing for three years after the date the decision is rendered.\n\n(c) A hearing required by this section which is conducted in a manner that conforms procedurally to the applicable collective bargaining agreement shall satisfy the procedural requirements of this section.\n\n(d) Except as provided for in paragraph (c) of this section, a hearing required under this section shall be conducted in accordance with the following procedures:\n\n(1) The hearing shall be conducted by a presiding officer who can be any proficient person authorized by the railroad other than the investigating officer.\n\n(2) The presiding officer shall convene and preside over the hearing and exercise the powers necessary to regulate the conduct of the hearing for the purpose of achieving a prompt and fair determination of all material issues in dispute.\n\n(3) The presiding officer may:\n\n(i) Adopt any needed procedures for the submission of evidence in written form;\n\n(ii) Examine witnesses at the hearing; and\n\n(iii) Take any other action authorized by or consistent with the provisions of this part and permitted by law that may assist in achieving a prompt and fair determination of all material issues in dispute.\n\n(4) All relevant and probative evidence shall be received into the record unless the presiding officer determines the evidence to be unduly repetitive or have such minimal relevance that its admission would impair the prompt, orderly, and fair resolution of the proceeding.\n\n(5) Parties may appear at the hearing and be heard on their own behalf or through designated representatives. Parties may offer relevant evidence including testimony and may conduct such examination of witnesses as may be required for a full disclosure of the relevant facts.\n\n(6) Testimony by witnesses at the hearing shall be recorded verbatim. Witnesses can testify in person, over the phone, or virtually.\n\n(7) The record in the proceeding shall be closed at the conclusion of the hearing unless the presiding officer allows additional time for the submission of evidence.\n\n(8) A hearing required under this section may be consolidated with any disciplinary action or other hearing arising from the same facts, but in all instances a railroad official, other than the investigating officer, shall make separate findings as to the revocation required under this section.\n\n(9) A person may waive their right to a hearing. That waiver shall:\n\n(i) Be made in writing;\n\n(ii) Reflect the fact that the person has knowledge and understanding of these rights and voluntarily surrenders them; and\n\n(iii) Be signed by the person making the waiver.\n\n(e) Except as provided for in paragraph (c) of this section, a decision, required by this section, on whether to revoke a dispatcher's certification shall comply with the following requirements:\n\n(1) No later than ten days after the close of the record, a railroad official, other than the investigating officer, shall prepare and sign a written decision as to whether the railroad is revoking the dispatcher's certification.\n\n(2) The decision shall:\n\n(i) Contain the findings of fact on all material issues as well as an explanation for those findings with citations to all applicable railroad operating rules and practices;\n\n(ii) State whether the railroad official found that the dispatcher's certification should be revoked;\n\n(iii) State the period of revocation under \u00a7 245.305 (if the railroad official concludes that the dispatcher's certification should be revoked); and\n\n(iv) Be served on the dispatcher and the dispatcher's representative, if any, with the railroad retaining proof of service for three years after the date the decision is rendered.\n\n(f) The period that a dispatcher's certification is suspended in accordance with paragraph (b)(1) of this section shall be credited towards any period of revocation that the railroad assesses in accordance with \u00a7 245.305.\n\n(g) A railroad shall revoke a dispatcher's certification if, during the period that certification is valid, the railroad acquires information which convinces it that another railroad has revoked the person's dispatcher certification in accordance with the provisions of this section. Such revocation shall run concurrently with the period of revocation imposed by the railroad that initially revoked the person's certification. The requirement to provide a hearing under this section is satisfied when any single railroad holds a hearing. No additional hearing is required prior to a revocation by more than one railroad arising from the same facts.\n\n(h) A railroad shall not revoke a dispatcher's certification if sufficient evidence exists to establish that an intervening cause prevented or materially impaired the dispatcher's ability to comply with the railroad operating rule or practice which constitutes a violation under \u00a7 245.303.\n\n(i) A railroad may decide not to revoke a dispatcher's certification if sufficient evidence exists to establish that the violation of the railroad operating rule or practice described in \u00a7 245.303(e) was of a minimal nature and had no direct or potential effect on rail safety.\n\n(j) If sufficient evidence meeting the criteria in paragraph (h) or (i) of this section becomes available, including prior to a railroad's action to suspend the certificate as provided for in paragraph (b)(1) of this section or prior to the convening of the hearing provided for in this section, the railroad shall place the relevant information in the records maintained in compliance with:\n\n(1) Section 245.215 for Class I railroads (including the National Railroad Passenger Corporation), railroads providing commuter service, and Class II railroads; or\n\n(2) Section 245.203 for Class III railroads.\n\n(k) If a railroad makes a good faith determination, after performing a reasonable inquiry, that the course of conduct provided for in paragraph (h) or (i) of this section is warranted, the railroad will not be in violation of paragraph (b)(1) of this section if it decides not to suspend the dispatcher's certification."], ["49:49:4.1.1.1.39.5.137.1", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "E", "Subpart E\u2014Dispute Resolution Procedures", "", "\u00a7 245.401 Review board established.", "FRA", "", "", "", "(a) Any person who has been denied certification, denied recertification, or has had their certification revoked and believes that a railroad incorrectly determined that they failed to meet the certification requirements of this part when making the decision to deny or revoke certification, may petition the Administrator to review the railroad's decision.\n\n(b) The Administrator has delegated initial responsibility for adjudicating such disputes to the Certification Review Board (Board). The Board shall be composed of FRA employees."], ["49:49:4.1.1.1.39.5.137.2", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "E", "Subpart E\u2014Dispute Resolution Procedures", "", "\u00a7 245.403 Petition requirements.", "FRA", "", "", "", "(a) To obtain review of a railroad's decision to deny certification, deny recertification, or revoke certification, a person shall file a petition for review that complies with this section.\n\n(b) Each petition shall:\n\n(1) Be in writing;\n\n(2) Be filed no more than 120 days after the date the railroad's denial or revocation decision was served on the petitioner, except as provided for in paragraph (d) of this section;\n\n(3) Be filed on  https://www.regulations.gov.\n\n(4) Include the following contact information for the petitioner and petitioner's representative (if petitioner is represented):\n\n(i) Full name;\n\n(ii) Daytime telephone number; and\n\n(iii) Email address;\n\n(5) Include the name of the railroad;\n\n(6) Contain the facts that the petitioner believes constitute the improper action by the railroad and the arguments in support of the petition; and\n\n(7) Include all written documents in the petitioner's possession or reasonably available to the petitioner that document the railroad's decision.\n\n(c) If requested by the Board, the petitioner must provide a copy of the information under 49 CFR 40.329 that laboratories, medical review officers, and other service agents are required to release to employees. The petitioner must provide a written explanation in response to a Board request if written documents, that should be reasonably available to the petitioner, are not supplied.\n\n(d) The Board may extend the petition filing period in its discretion provided that the petitioner provides good cause for the extension and:\n\n(1) The request for an extension is filed before the expiration of the period provided for in paragraph (b)(2) of this section; or\n\n(2) The failure to timely file was the result of excusable neglect.\n\n(e) A party aggrieved by a Board decision to deny a petition as untimely or not in compliance with the requirements of this section may file an appeal with the Administrator in accordance with \u00a7 245.411."], ["49:49:4.1.1.1.39.5.137.3", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "E", "Subpart E\u2014Dispute Resolution Procedures", "", "\u00a7 245.405 Processing certification review petitions.", "FRA", "", "", "", "(a) Each petition shall be acknowledged in writing by FRA. The acknowledgment shall be sent to the petitioner (if an email address is provided), petitioner's representative (if any), and the railroad. The acknowledgment shall contain the docket number assigned to the petition and will notify the parties where the petition can be accessed.\n\n(b) Within 60 days from the date of the acknowledgment provided in paragraph (a) of this section, the railroad may submit to FRA any information that the railroad considers pertinent to the petition and shall supplement the record with any relevant documents in its possession, such as hearing transcripts and exhibits, that were not submitted by the petitioner. Late filings will only be considered to the extent practicable. A railroad that submits such information shall:\n\n(1) Identify the petitioner by name and the docket number for the petition;\n\n(2) Provide the railroad's email address;\n\n(3) Serve a copy of the information being submitted to the petitioner and petitioner's representative, if any; and\n\n(4) File such information on  https://www.regulations.gov.\n\n(c) The petition will be referred to the Board for a decision after a railroad's response is received or 60 days from the date of the acknowledgment provided in paragraph (a) of this section, whichever is earlier. Based on the record, the Board shall have the authority to grant, deny, dismiss, or remand the petition. If the Board finds that there is insufficient basis for granting or denying the petition, the Board may issue an order affording the parties an opportunity to provide additional information or argument consistent with its findings.\n\n(d) When considering procedural issues, the Board will grant the petition if the petitioner shows:\n\n(1) That a procedural error occurred; and\n\n(2) The procedural error caused substantial harm to the petitioner.\n\n(e) When considering factual issues, the Board will grant the petition if the petitioner shows that the railroad did not provide substantial evidence to support its decision.\n\n(f) When considering legal issues, the Board will determine whether the railroad's legal interpretations are correct based on a  de novo  review.\n\n(g) The Board will only consider whether the denial or revocation of certification or recertification was improper under this part and will grant or deny the petition accordingly. The Board will not otherwise consider the propriety of a railroad's decision. For example, the Board will not consider whether the railroad properly applied its own more stringent requirements.\n\n(h) The Board's written decision shall be served on the petitioner and/or petitioner's representative (if any) and the railroad."], ["49:49:4.1.1.1.39.5.137.4", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "E", "Subpart E\u2014Dispute Resolution Procedures", "", "\u00a7 245.407 Request for a hearing.", "FRA", "", "", "", "(a) If adversely affected by the Board's decision, either the petitioner before the Board or the railroad involved shall have a right to an administrative proceeding as prescribed by \u00a7 245.409.\n\n(b) To exercise that right, the adversely affected party shall file a written request for a hearing within 20 days of service of the Board's decision on that party. The request must be filed in the docket on  https://www.regulations.gov  that was used when the case was before the Board.\n\n(c) A written request for a hearing must contain the following:\n\n(1) The name, telephone number, and email address of the requesting party and the requesting party's designated representative (if any);\n\n(2) The name, telephone number, and email address of the respondent;\n\n(3) The docket number for the case while it was before the Board;\n\n(4) The specific factual issues, industry rules, regulations, or laws that the requesting party alleges need to be examined in connection with the certification decision in question; and\n\n(5) The signature of the requesting party or the requesting party's representative (if any).\n\n(d) Upon receipt of a hearing request complying with paragraph (c) of this section, FRA shall arrange for the appointment of a presiding officer who shall schedule the hearing for the earliest practicable date.\n\n(e) If a party fails to request a hearing within the period provided in paragraph (b) of this section, the Board's decision will constitute final agency action."], ["49:49:4.1.1.1.39.5.137.5", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "E", "Subpart E\u2014Dispute Resolution Procedures", "", "\u00a7 245.409 Hearings.", "FRA", "", "", "", "(a) An administrative hearing for a dispatcher certification petition shall be conducted by a presiding officer, who can be any person authorized by the Administrator.\n\n(b) The presiding officer shall convene and preside over the hearing. The hearing shall be a  de novo  hearing to find the relevant facts and determine the correct application of this part to those facts. The presiding officer may determine that there is no genuine issue covering some or all material facts and limit evidentiary proceedings to any issues of material fact as to which there is a genuine dispute.\n\n(c) The presiding officer may exercise the powers of the Administrator to regulate the conduct of the hearing for the purpose of achieving a prompt and fair determination of all material issues in controversy.\n\n(d) The presiding officer may authorize discovery of the types and quantities which in the presiding officer's discretion will contribute to a fair hearing without unduly burdening the parties. The presiding officer may impose appropriate non-monetary sanctions, including limitations as to the presentation of evidence and issues, for any party's willful failure or refusal to comply with approved discovery requests.\n\n(e) Every petition, motion, response, or other authorized or required document shall be signed by the party filing the same, or by a duly authorized officer or representative of record, or by any other person. If signed by such other person, the reason therefor must be stated and the power of attorney or other authority authorizing such other person to subscribe the document must be filed with the document. The signature of the person subscribing any document constitutes a certification that they have read the document; that to the best of their knowledge, information, and belief, every statement contained in the document is true and no such statements are misleading; and that it is not interposed for delay or to be vexatious.\n\n(f) After the request for a hearing is filed, all documents filed or served upon one party must be served upon all parties. Each party may designate a person upon whom service is to be made when not specified by law, regulation, or directive of the presiding officer. If a party does not designate a person upon whom service is to be made, then service may be made upon any person having subscribed to a submission of the party being served, unless otherwise specified by law, regulation, or directive of the presiding officer. Proof of service shall accompany all documents when they are tendered for filing.\n\n(g) If any document initiating, filed in, or served in, a proceeding is not in substantial compliance with the applicable law, regulation, or directive of the presiding officer, the presiding officer may strike or dismiss all or part of such document, or require its amendment.\n\n(h) Any party to a proceeding may appear and be heard in person or by an authorized representative.\n\n(i) Any person testifying at a hearing or deposition may be accompanied, represented, and advised by an attorney or other representative, and may be examined by that person.\n\n(j) Any party may request to consolidate or separate the hearing of two or more petitions by motion to the presiding officer when they arise from the same or similar facts or when the matters are for any reason deemed more efficiently heard together.\n\n(k) Except as provided in \u00a7 245.407(e) and paragraph (s)(4) of this section, whenever a party has the right or is required to take action within a period prescribed by this part, or by law, regulation, or directive of the presiding officer, the presiding officer may extend such period, with or without notice, for good cause, provided another party is not substantially prejudiced by such extension. A request to extend a period which has already expired may be denied as untimely.\n\n(l) An application to the presiding officer for an order or ruling not otherwise specifically provided for in this part shall be by motion. The motion shall be filed with the presiding officer and, if written, served upon all parties. All motions, unless made during the hearing, shall be written. Motions made during hearings may be made orally on the record, except that the presiding officer may direct that any oral motion be reduced to writing. Any motion shall state with particularity the grounds therefor and the relief or order sought and shall be accompanied by any affidavits or other evidence desired to be relied upon which is not already part of the record. Any matter submitted in response to a written motion must be filed and served within 14 days of the motion, or within such other period as directed by the presiding officer.\n\n(m) Testimony by witnesses at the hearing shall be given under oath and the hearing shall be recorded verbatim. The presiding officer shall give the parties to the proceeding adequate opportunity during the course of the hearing for the presentation of arguments in support of or in opposition to motions, and objections and exceptions to rulings of the presiding officer. The presiding officer may permit oral argument on any issues for which the presiding officer deems it appropriate and beneficial. Any evidence or argument received or proffered orally shall be transcribed and made a part of the record. Any physical evidence or written argument received or proffered shall be made a part of the record, except that the presiding officer may authorize the substitution of copies, photographs, or descriptions, when deemed to be appropriate.\n\n(n) The presiding officer shall employ the Federal Rules of Evidence for United States Courts and Magistrates as general guidelines for the introduction of evidence. Notwithstanding paragraph (m) of this section, all relevant and probative evidence shall be received unless the presiding officer determines the evidence to be unduly repetitive or so extensive and lacking in relevancy that its admission would impair the prompt, orderly, and fair resolution of the proceeding.\n\n(o) The presiding officer may:\n\n(1) Administer oaths and affirmations;\n\n(2) Issue subpoenas as provided for in \u00a7 209.7 of this chapter;\n\n(3) Adopt any needed procedures for the submission of evidence in written form;\n\n(4) Examine witnesses at the hearing;\n\n(5) Convene, recess, adjourn, or otherwise regulate the course of the hearing; and\n\n(6) Take any other action authorized by or consistent with the provisions of this part and permitted by law that may expedite the hearing or aid in the disposition of the proceeding.\n\n(p) The petitioner before the Board, the railroad involved in taking the certification action, and FRA shall be parties at the hearing. All parties may participate in the hearing and may appear and be heard on their own behalf or through designated representatives. All parties may offer relevant evidence, including testimony, and may conduct such cross-examination of witnesses as may be required to make a record of the relevant facts.\n\n(q) The party requesting the administrative hearing shall be the \u201chearing petitioner.\u201d The party that the Board issued its decision in favor of will be a respondent. At the start of each proceeding, FRA will be a respondent as well. The hearing petitioner shall have the burden of proving its case by a preponderance of the evidence.\n\n(r) The record in the proceeding shall be closed at the conclusion of the evidentiary hearing unless the presiding officer allows additional time for the submission of additional evidence. In such instances the record shall be left open for such time as the presiding officer grants for that purpose.\n\n(s) At the close of the record, the presiding officer shall prepare a written decision in the proceeding. The decision:\n\n(1) Shall contain the findings of fact and conclusions of law, as well as the basis for each, concerning all material issues of fact or law presented on the record;\n\n(2) Shall be served on all parties to the proceeding;\n\n(3) Shall not become final for 35 days after issuance;\n\n(4) Constitutes final agency action unless an aggrieved party files an appeal within 35 days after issuance; and\n\n(5) Is not precedential."], ["49:49:4.1.1.1.39.5.137.6", 49, "Transportation", "II", "", "245", "PART 245\u2014QUALIFICATION AND CERTIFICATION OF DISPATCHERS", "E", "Subpart E\u2014Dispute Resolution Procedures", "", "\u00a7 245.411 Appeals.", "FRA", "", "", "", "(a) Any party aggrieved by the presiding officer's decision may file an appeal in the presiding officer's docket. The appeal must be filed within 35 days of issuance of the decision. A copy of the appeal shall be served on each party. The appeal shall set forth objections to the presiding officer's decision, supported by reference to applicable laws and regulations and with specific reference to the record. If no appeal is timely filed, the presiding officer's decision constitutes final agency action.\n\n(b) A party may file a reply to the appeal within 25 days of service of the appeal. The reply shall be supported by reference to applicable laws and regulations and with specific reference to the record, if the party relies on evidence contained in the record.\n\n(c) The Administrator may extend the period for filing an appeal or a reply for good cause shown, provided that the written request for extension is served before expiration of the applicable period provided in this section.\n\n(d) The Administrator has sole discretion to permit oral argument on the appeal. On the Administrator's own initiative or written motion by any party, the Administrator may grant the parties an opportunity for oral argument.\n\n(e) The Administrator may remand, vacate, affirm, reverse, alter, or modify the decision of the presiding officer and the Administrator's decision constitutes final agency action except where the terms of the Administrator's decision (for example, remanding a case to the presiding officer) show that the parties' administrative remedies have not been exhausted.\n\n(f) An appeal from a Board decision pursuant to \u00a7 245.403(e) must be filed in the Board's docket within 35 days of issuance of the decision. A copy of the appeal shall be served on each party. The Administrator may affirm or vacate the Board's decision, and may remand the petition to the Board for further proceedings. An Administrator's decision to affirm the Board's decision constitutes final agency action."], ["7:7:4.1.1.1.9.0.1.1", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.1 General purpose and scope.", "FNS", "", "", "[Amdt. 6, 39 FR 30337, Aug. 22, 1974, as amended by Amdt. 10, 41 FR 28783, July 13, 1976; 47 FR 31852, July 23, 1982; 72 FR 63792, Nov. 13, 2007]", "(a) This part established the responsibilities of State agencies, Food and Nutrition Service Regional Offices, school food authorities or local educational agencies, as defined in \u00a7 245.2, as applicable in providing free and reduced price meals and free milk in the National School Lunch Program (7 CFR part 210), the School Breakfast Program (7 CFR part 220), the Special Milk Program for Children (7 CFR part 215), and commodity schools. Section 9 of the National School Lunch Act, as amended, and sections 3 and 4 of the Child Nutrition Act of 1966, as amended, require schools participating in any of the programs and commodity schools to make available, as applicable, free and reduced price lunches, breakfasts, and at the option of the School Food Authority for schools participating only in the Special Milk Program free milk to eligible children.\n\n(b) This part sets forth the responsibilities under these Acts of State agencies, the Food and Nutrition Service Regional Offices, school food authorities or local educational agencies, as applicable, with respect to the establishment of income guidelines, determination of eligibility of children for free and reduced price meals, and for free milk and assurance that there is no physical segregation of, or other discrimination against, or overt identification of children unable to pay the full price for meals or milk."], ["7:7:4.1.1.1.9.0.1.10", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.9 Special assistance certification and reimbursement alternatives.", "FNS", "", "", "[Amdt. 19, 45 FR 67287, Oct. 10, 1980, as amended by Amdt. 23, 47 FR 14135, Apr. 2, 1982; 66 FR 48328, Sept. 20, 2001; 76 FR 22802, Apr. 25, 2011; 81 FR 50206, July 29, 2016]", "(a)  Provision 1.  A Local educational agency of a school having at least 80 percent of its enrolled children determined eligible for free or reduced price meals may, at its option, authorize the school to reduce annual certification and public notification for those children eligible for  free meals  to once every two consecutive school years. This alternative shall be known as provision 1 and the following requirements shall apply:\n\n(1) A Local educational agency of a school operating under provision 1 requirements shall publicly notify in accordance with \u00a7 245.5, parents of enrolled children who are receiving free meals once every two consecutive school years, and shall publicly notify in accordance with \u00a7 245.5, parents of all other enrolled children on an annual basis.\n\n(2) The 80 percent enrollment eligibility for this alternative shall be based on the school's March enrollment data of the previous school year, or on other comparable data.\n\n(3) A Local educational agency of a school operating under provision 1, shall count the number of free, reduced price and paid meals served to children in that school as the basis for monthly reimbursement claims.\n\n(b)  Provision 2.  A local educational agency may certify children for free and reduced price meals for up to 4 consecutive school years in the schools which serve meals at no charge to all enrolled children; provided that public notification and eligibility determinations are in accordance with \u00a7\u00a7 245.5 and 245.3, respectively, during the base year as defined in paragraph (b)(6) of this section. The Provision 2 base year is the first year, and is included in the 4-year cycle. The following requirements apply:\n\n(1)  Meals at no charge.  Participating schools must serve reimbursable meals, as determined by a point of service observation, or as otherwise approved under part 210 of this chapter, to all participating children at no charge.\n\n(2)  Cost differential.  The local educational agency of a school participating in Provision 2 must pay, with funds from non-Federal sources, the difference between the cost of serving lunches and/or breakfasts at no charge to all participating children and Federal reimbursement.\n\n(3)  Meal counts.  During the base year, even though meals are served to participating students at no charge, schools must take daily meal counts of reimbursable student meals by type (free, reduced price, and paid) at the point of service, or as otherwise approved under part 210 of this chapter. During the non-base years, participating Provision 2 schools must take total daily meal counts (not by type) of reimbursable student meals at the point of service, or as otherwise approved under part 210 of this chapter. For the purpose of calculating reimbursement claims in the non-base years, local educational agencies must establish school specific monthly or annual claiming percentages, as follows:\n\n(i)  Monthly percentages.  In any given Provision 2 school, the monthly meal counts of the actual number of meals served by type (free, reduced price, and paid) during the base year must be converted to monthly percentages for each meal type. For example, the free lunch percentage is derived by dividing the monthly total number of reimbursable free lunches served by the total number of reimbursable lunches served in the same month (free, reduced price and paid). The percentages for the reduced price and paid lunches are calculated using the same method as the above example for free lunches. These three percentages, calculated at the end of each month of the first school year, are multiplied by the corresponding monthly lunch count total of all reimbursable lunches served in the second, third and fourth consecutive school years, and applicable extensions, in order to calculate reimbursement claims for free, reduced price and paid lunches each month. The free, reduced price and paid percentages for breakfasts and, as applicable, snacks, are calculated using the same method; or\n\n(ii)  Annual percentages.  In any given Provision 2 school, the actual number of all reimbursable meals served by type (free, reduced price, and paid) during the base year must be converted to an annual percentage for each meal type. For example, the free lunch percentage is derived by dividing the annual total number of reimbursable free lunches served by the annual total number of reimbursable lunches served for all meal types (free, reduced price and paid). The percentages for the reduced price and paid lunches are calculated using the same method as the above example for free lunches. These three percentages, calculated at the end of the base year, are multiplied by the total monthly lunch count of all reimbursable lunches served in each month of the second, third and fourth consecutive school years, and applicable extensions, in order to calculate reimbursement claims for free, reduced price and paid lunches each month. The free, reduced price and paid percentages for breakfasts and, as applicable, snacks, are calculated using the same method for each type of meal service.\n\n(4)  Local educational agency claims review process.  During the Provision 2 base year (not including a streamlined base year under paragraph (c)(2)(iii) of this section), local educational agencies are required to review the lunch count data for each school under its jurisdiction to ensure the accuracy of the monthly Claim for Reimbursement in accordance with \u00a7 210.8(a)(2) of this chapter. During non-base years and streamlined base years, local educational agencies must compare each Provision 2 school's total daily meal counts to the school's total enrollment, adjusted by an attendance factor. The local educational agency must promptly follow-up as specified in \u00a7 210.8(a)(4) of this chapter when the claims review suggests the likelihood of lunch count problems. When a school elects to operate Provision 2 only in the School Breakfast Program, local educational agencies must continue to comply with the claims review requirements of \u00a7 210.8(a)(2) of this chapter for the National School Lunch Program.\n\n(5)  Verification.  Except as otherwise specified in \u00a7 245.6a(a)(5), local educational agencies are required to conduct verification in accordance with \u00a7 245.6a. When a school elects to participate under Provision 2 or for all of the meal programs in which it participates (breakfast 7 CFR part 220 and/or lunch 7 CFR part 210), the applications from that school are excluded from the local educational agency's required verification sample size and are exempt from verification during non-base years.\n\n(6)  Base year.  For purposes of this paragraph (b), the term  base year  means the last school year for which eligibility determinations were made and meal counts by type were taken or the school year in which a school conducted a streamlined base year as authorized under paragraph (c)(2)(iii) of this section. Schools shall offer reimbursable meals to all students at no charge during the Provision 2 base year except as otherwise specified in paragraph (b)(6)(ii) of this section.\n\n(i)  Duration of the base year.  The base year must begin at the start of the school year or as otherwise specified in paragraph (b)(6)(ii) of this section.\n\n(ii)  Delayed implementation.  At State agency discretion, schools may delay implementation of Provision 2 for a period of time not to exceed the first claiming period of the school year in which the base year is established. Schools implementing this option may conduct standard meal counting and claiming procedures, including charging students eligible for reduced price and paid meals, during the first claiming period of the school year. Such schools must submit claims reflecting the actual number of meals served by type. In subsequent years, such schools shall convert the actual number of reimbursable meals served by type (free, reduced price and paid) during the remaining claiming periods of the base year, in which meals were served at no charge to all participating students, to an annual percentage for each type of meal. The annual claiming percentages must be applied to the total number of reimbursable meals served during the first claiming period in all non-base years of operation for that cycle and any extensions.\n\n(c)  Extension of Provision 2.  At the end of the initial cycle, and each subsequent 4-year cycle, the State agency may allow a school to continue under Provision 2 for another 4 years using the claiming percentages calculated during the most recent base year if the local educational agency can establish, through available and approved socioeconomic data, that the income level of the school's population, as adjusted for inflation, has remained stable, declined or has had only negligible improvement since the base year.\n\n(1)  Extension criteria.  Local educational agencies must submit to the State agency available and approved socioeconomic data to establish whether the income level of a school's population, as adjusted for inflation, remained constant with the income level of the most recent base year.\n\n(i)  Available and approved sources of socioeconomic data.  Pre-approved sources of socioeconomic data which may be used by local educational agencies to establish the income level of the school's population are: local data collected by the city or county zoning and economic planning office; unemployment data; local SNAP certification data including direct certification; Food Distribution Program on Indian Reservations data; statistical sampling of the school's population using the application or equivalent income measurement process; and, Temporary Assistance for Needy Families data (provided that the eligibility standards were the same or more restrictive in the base year as the current year with allowance for inflation). To grant an extension using pre-approved socioeconomic data sources, State agencies must review and evaluate the socioeconomic data submitted by the local educational agency to ensure that it is reflective of the school's population, provides equivalent data for both the base year and the last year of the current cycle, and demonstrates that the income level of the school's population, as adjusted for inflation, has remained stable, declined or had only negligible improvement. If the local educational agency wants to establish the income level of the school's population using alternate sources of socioeconomic data, the use of such data must be approved by the Food and Nutrition Service. Data from alternate sources must be reflective of the school's population, be equivalent data for both the base year and the last year of the current cycle, and effectively measure whether the income level of the school's population, as adjusted for inflation, has remained stable, declined or had only negligible improvement.\n\n(ii)  Negligible improvement.  The change in the income level of the school's population shall be considered negligible if there is a 5 percent or less improvement, after adjusting for inflation, over the base year in the level of the socioeconomic indicator which is used to establish the income level of the school's population.\n\n(2)  Extension not approved.  The State agency shall not approve an extension of Provision 2 procedures in those schools for which the available and approved socioeconomic data does not reflect the school's population, is not equivalent data for the base year and the last year of the current cycle, or shows over 5 percent improvement, after adjusting for inflation, in the income level of the school's population. Such schools shall:\n\n(i)  Return to standard meal counting and claiming.  Return to standard meal counting and claiming procedures;\n\n(ii)  Establish a new base year.  Establish a new Provision 2 base year by taking new free and reduced price applications, making new free and reduced price eligibility determinations, and taking point of service counts of free, reduced price and paid meals for the first year of the new cycle. For these schools, the new Provision 2 cycle will be 4 years. Schools electing to establish a Provision 2 base year shall follow procedures contained in paragraph (b) of this section;\n\n(iii)  Establish a streamlined base year.  With prior approval by the State agency, establish a streamlined base year by providing reimbursable meals to all participating students at no charge and developing either enrollment based or participation based claiming percentages.\n\n(A)  Enrollment based percentages.  In accordance with guidance established by the Food and Nutrition Service, establish a new Provision 2 base year by determining program eligibility on the basis of household size and income, and direct certification if applicable, for a statistically valid proportion of the school's enrollment as of October 31, or other date approved by the State agency. The statistically valid measurement of the school's enrollment must be obtained during the first year of the new cycle and meet the requirements of paragraph (m) of this section. Using the data obtained, enrollment based claiming percentages representing a proportion of the school's population eligible for free, reduced price and paid benefits shall be developed and applied to total daily meal counts of reimbursable meals at the point of service, or as otherwise approved under part 210 of this chapter. For schools electing to participate in Provision 2, these percentages shall be used for claiming reimbursement for each year of the new cycle and any extensions; or\n\n(B)  Participation based percentages.  In accordance with guidance established by the Food and Nutrition Service, establish a new Provision 2 base year by determining program eligibility on the basis of household size and income, and direct certification if applicable, for a statistically valid proportion of participating students established over multiple operating days. The statistically valid measurement of the school's student participation must be obtained during the first year of the new cycle and meet the requirements of paragraph (m) of this section. Using the data obtained, participation based claiming percentages representing a proportion of the school's participating students which are eligible for free, reduced price and paid benefits shall be developed and applied to total daily meal counts of reimbursable meals at the point of service or as otherwise approved under part 210 of this chapter. These percentages shall be used for claiming reimbursement for each year of the new cycle and any extensions; or\n\n(iv)  Establish a Provision 3 base year.  Schools may convert to Provision 3 using the procedures contained in paragraphs (e)(2)(ii) or (e)(2)(iii) of this section.\n\n(d)  Provision 3.  A local educational agency of a school which serves all enrolled children in that school reimbursable meals at no charge during any period for up to 4 consecutive school years may elect to receive Federal cash reimbursement and commodity assistance at the same level as the total Federal cash and commodity assistance received by the school during the last year that eligibility determinations for free and reduced price meals were made and meals were counted by type (free, reduced price and paid) at the point of service, or as otherwise authorized under part 210 of this chapter. Such cash reimbursement and commodity assistance will be adjusted for each of the 4 consecutive school years pursuant to paragraph (d)(4) of this section. For purposes of this paragraph (d), the term base year means the last complete school year for which eligibility determinations were made and meal counts by type were taken or the school year in which a school conducted a streamlined base year as authorized under paragraph (e)(2)(iii) of this section. The base year must begin at the start of a school year. Reimbursable meals may be offered to all students at no charge or students eligible for reduced price and paid meal benefits may be charged for meals during a Provision 3 base,  except that  schools conducting a Provision 3 streamlined base year must provide reimbursable meals to all participating students at no charge in accordance with paragraph (e)(2)(iii) of this section. The Provision 3 base year immediately precedes, and is not included in, the 4-year cycle. This alternative shall be known as Provision 3, and the following requirements shall apply:\n\n(1)  Meals at no charge.  Participating schools must serve reimbursable meals, as determined by a point of service observation, or as otherwise authorized under part 210 of this chapter, to all participating children at no charge during non-base years of operation or as specified in paragraph (e)(2)(iii) of this section, if applicable.\n\n(2)  Cost differential.  The local educational agency of a school participating in Provision 3 must pay, with funds from non-Federal sources, the difference between the cost of serving lunches and/or breakfasts at no charge to all participating children and Federal reimbursement.\n\n(3)  Meal counts.  Participating schools must take total daily meal counts of reimbursable meals served to participating children at the point of service, or as otherwise authorized under part 210 of this chapter, during the non-base years. Such meal counts must be retained at the local level in accordance with paragraph (h) of this section. State agencies may require the submission of the meal counts on the local educational agency's monthly Claim for Reimbursement or through other means. In addition, local educational agencies must establish a system of oversight using the daily meal counts to ensure that participation has not declined significantly from the base year. If participation declines significantly, the local educational agency must provide the school with technical assistance, adjust the level of financial assistance received through the State agency or return the school to standard eligibility determination and meal counting procedures, as appropriate. In residential child care institutions, the State agency may approve implementation of Provision 3 without the requirement to obtain daily meal counts of reimbursable meals at the point of service if:\n\n(i) The State agency determines that enrollment, participation and meal counts do not vary; and\n\n(ii) There is an approved mechanism in place to ensure that students will receive reimbursable meals.\n\n(4)  Annual adjustments.  The State agency or local educational agency shall make annual adjustments for enrollment and inflation to the total Federal cash and commodity assistance received by a Provision 3 school in the base year. The adjustments shall be made for increases and decreases in enrollment of children with access to the program(s). The annual adjustment for enrollment shall be based on the school's base year enrollment as of October 31 compared to the school's current year enrollment as of October 31. Another date within the base year may be used if it is approved by the State agency, and provides a more accurate reflection of the school's enrollment or accommodates the reporting system in effect in that State. If another date is used for the base year, the current year date must correspond to the base year date of comparison. State agencies may, at their discretion, make additional adjustments to a participating school's enrollment more frequently than once per school year. If more frequent enrollment is calculated, it must be applied for both upward and downward adjustments. The annual adjustment for inflation shall be effected through the application of the current year rates of reimbursement. To the extent that the number of operating days in the current school year differs from the number of operating days in the base year, and the difference affects the number of meals, a prorata adjustment shall also be made to the base year level of assistance, as adjusted by enrollment and inflation. Upward and downward adjustments to the number of operating days shall be made. Such adjustment shall be effected by either:\n\n(i) Multiplying the average daily meal count by type (free, reduced price and paid) by the difference in the number of operating days between the base year and the current year and adding/subtracting that number of meals from the Claim for Reimbursement, as appropriate. In developing the average daily meal count by type for the current school year, schools shall use the base year data adjusted by enrollment; or\n\n(ii) Multiplying the dollar amount otherwise payable (i.e., the base year level of assistance, as adjusted by enrollment and inflation) by the ratio of the number of operating days in the current year to the number of operating days in the base year.\n\n(5)  Reporting requirements.  The State agency shall submit to the Department on the monthly FNS-10, Report of School Programs Operations, the number of meals, by type (i.e., monthly meal counts by type for the base year, as adjusted); or the number of meals, by type, constructed to reflect the adjusted levels of cash assistance. State agencies may employ either method to effect payment of reimbursement for Provision 3 schools.\n\n(6)  Local educational agency claims review process.  During the Provision 3 base year (not including a streamlined base year under paragraph (e)(2)(iii) of this section), local educational agencies are required to review the lunch count data for each school under its jurisdiction to ensure the accuracy of the monthly Claim for Reimbursement in accordance with \u00a7 210.8(a)(2) of this chapter. During non-base years and streamlined base years, local educational agencies must conduct their own system of oversight or compare each Provision 3 school's total daily meal counts to the school's total enrollment, adjusted by an attendance factor. The local educational agency must promptly follow-up as specified in \u00a7 210.8(a)(4) of this chapter when the claims review suggests the likelihood of lunch count problems. When a school elects to operate Provision 3 only in the School Breakfast Program, local educational agencies must continue to comply with the claims review requirements of \u00a7 210.8(a)(2) of this chapter for the National School Lunch Program.\n\n(7)  Verification.  Except as otherwise specified in \u00a7 245.6a(a)(5), local educational agencies are required to conduct verification in accordance with \u00a7 245.6a. When a school elects to participate under Provision 3 for all of the meal programs in which it participates (breakfast 7 CFR part 220 and/or lunch 7 CFR part 210), the applications from that school are excluded from the local educational agency's required verification sample size and are exempt from verification during non-base years.\n\n(e)  Extension of Provision 3.  At the end of the initial cycle, and each subsequent 4-year cycle, the State agency may allow a school to continue under Provision 3 for another 4 years without taking new free and reduced price applications and meal counts by type. State agencies may grant an extension of Provision 3 if the local educational agency can establish, through available and approved socioeconomic data, that the income level of the school's population, as adjusted for inflation, has remained stable, declined, or has had only negligible improvement since the most recent base year.\n\n(1)  Extension criteria.  Local educational agencies must submit to the State agency available and approved socioeconomic data to establish whether the income level of the school's population, as adjusted for inflation, remained constant with the income level of the most recent base year.\n\n(i)  Available and approved sources of socioeconomic data.  Pre-approved sources of socioeconomic data which may be used by local educational agencies to establish the income level of the school's population are: local data collected by the city or county zoning and economic planning office; unemployment data; local SNAP certification data including direct certification; Food Distribution Program on Indian Reservations data; statistical sampling of the school's population using the application process; and Temporary Assistance for Needy Families data (provided that the eligibility standards were the same or more restrictive in the base year as the current year with allowance for inflation). To grant an extension using pre-approved socioeconomic data sources, State agencies must review and evaluate the socioeconomic data submitted by the local educational agency to ensure that it is reflective of the school's population, provides equivalent data for both the base year and the last year of the current cycle, and demonstrates that the income level of the school's population, as adjusted for inflation, has remained stable, declined or had only negligible improvement. If the local educational agency wants to establish the income level of the school's population using alternate sources of data, the use of such data must be approved by the Food and Nutrition Service. Data from alternate sources must be reflective of the school's population, be equivalent data for both the base year and the last year of the current cycle, and effectively measure whether the income level of the school's population, as adjusted for inflation, has remained stable, declined or had only negligible improvement.\n\n(ii)  Negligible improvement.  The change in the income level of the school population shall be considered negligible if there is a 5 percent or less improvement, after adjusting for inflation, over the base year in the level of the socioeconomic indicator which is used to establish the income level of the school's population.\n\n(2)  Extension not approved.  Schools for which the available and approved socioeconomic data does not reflect the school's population, is not equivalent data for the base year and the last year of the current cycle, or shows over 5 percent improvement after adjusting for inflation, shall not be approved for an extension. Such schools must elect one of the following options:\n\n(i)  Return to standard meal counting and claiming.  Return to standard meal counting and claiming procedures;\n\n(ii)  Establish a new base year.  Establish a new Provision 3 base year by taking new free and reduced price applications, making new free and reduced price eligibility determinations, and taking point of service counts of free, reduced price and paid meals for the first year of the new cycle. Schools electing to establish a Provision 3 base year shall follow procedures contained in paragraph (d) of this section;\n\n(iii)  Establish a streamlined base year.  With prior approval by the State agency, establish a streamlined base year by providing reimbursable meals to all participating students at no charge and developing either enrollment based or participation based claiming percentages.\n\n(A)  Enrollment based percentages.  In accordance with guidance established by the Food and Nutrition Service, establish a new Provision 3 base year by determining program eligibility on the basis of household size and income, and direct certification if applicable, for a statistically valid proportion of the school's enrollment as of October 31, or other date approved by the State agency. The statistically valid measurement of the school's enrollment must be obtained during the first year of the new cycle and meet the requirements of paragraph (m) of this section. Using the data obtained, enrollment based claiming percentages representing a proportion of the school's population eligible for free, reduced price and paid benefits shall be developed and applied to total daily meal counts of reimbursable meals at the point of service, or as otherwise approved under part 210 of this chapter. For schools electing to participate in Provision 3, the streamlined base year level of assistance will be adjusted for enrollment, inflation and, if applicable, operating days, for each subsequent year of the new cycle and any extensions; or\n\n(B)  Participation based percentages.  In accordance with guidance established by the Food and Nutrition Service, establish a new Provision 3 base year by determining program eligibility on the basis of household size and income, and direct certification if applicable, for a statistically valid proportion of participating students established over multiple operating days. The statistically valid measurement of the school's student participation must be obtained during the first year of the new cycle and meet the requirements of paragraph (m) of this section. Using the data obtained, participation based claiming percentages representing a proportion of the school's participating students which are eligible for free, reduced price and paid benefits shall be developed and applied to total daily meal counts of reimbursable meals at the point of service or as otherwise approved under part 210 of this chapter. For schools electing to participate in Provision 3, the streamlined base year level of assistance as described in this paragraph (e)(2)(iii)(B) will be adjusted for enrollment, inflation and, if applicable, operating days, for each subsequent year of the new cycle and any extensions; or\n\n(iv)  Establish a Provision 2 base year.  Schools may convert to Provision 2 using the procedures contained in paragraphs (c)(2)(ii) or (c)(2)(iii) of this section.\n\n(f)  Community eligibility.  The community eligibility provision is an alternative reimbursement option for eligible high poverty local educational agencies. Each CEP cycle lasts up to four years before the LEA or school is required to recalculate their reimbursement rate. LEAs and schools have the option to recalculate sooner, if desired. A local educational agency may elect this provision for all of its schools, a group of schools, or an individual school. Participating local educational agencies must offer free breakfasts and lunches for the length of their CEP cycle, not to exceed four successive years, to all children attending participating schools and receive meal reimbursement based on claiming percentages, as described in paragraph (f)(4)(v) of this section.\n\n(1)  Definitions.  For the purposes of this paragraph,\n\n(i)  Enrolled students  means students who are enrolled in and attending schools participating in the community eligibility provision and who have access to at least one meal service (breakfast or lunch) daily.\n\n(ii)  Identified students  means students with access to at least one meal service who are not subject to verification as prescribed in \u00a7 245.6a(c)(2). Identified students are students approved for free meals based on documentation of their receipt of benefits from SNAP, TANF, the Food Distribution Program on Indian Reservations, or Medicaid where applicable (where approved by USDA to conduct matching with Medicaid data to identify children eligible for free meals). The term identified students also includes homeless children, migrant children, runaway children, or Head Start children (approved for free school meals without application and not subject to verification), as these terms are defined in \u00a7 245.2. In addition, the term includes foster children certified for free meals through means other than an application for free and reduced price school meals. The term does not include students who are categorically eligible based on submission of an application for free and reduced price school meals.\n\n(iii)  Identified student percentage  means a percentage determined by dividing the number of identified students as of a specified period of time by the number of enrolled students as defined in paragraph (f)(1)(i) of this section as of the same period of time and multiplying the quotient by 100. The identified student percentage may be determined by an individual participating school, a group of participating schools in the local educational agency, or in the aggregate for the entire local educational agency if all schools participate, following procedures established in FNS guidance.\n\n(2)  Implementation.  A local educational agency may elect the community eligibility provision for all schools, a group of schools, or an individual school. Community eligibility may be implemented for one or more 4-year cycles.\n\n(3)  Eligibility criteria.  To be eligible to participate in the community eligibility provision, a local educational agency (except a residential child care institution, as defined under the definition of \u201cSchool\u201d in \u00a7 210.2), group of schools, or school must meet the eligibility criteria set forth in this paragraph.\n\n(i)  Minimum identified student percentage.  A local educational agency, group of schools, or school must have an identified student percentage of at least 25 percent, as of April 1 of the school year prior to participating in the community eligibility provision, unless otherwise specified by FNS. Individual schools participating in a group may have less than 25 percent identified students, provided that the average identified student percentage for the group is at least 25 percent.\n\n(ii)  Lunch and breakfast program participation.  A local educational agency, group of schools, or school must participate in the National School Lunch Program and School Breakfast Program, under parts 210 and 220 of this title, for the duration of the 4-year cycle. Schools that operate on a limited schedule, where it is not operationally feasible to offer both lunch and breakfast, may elect CEP with FNS approval.\n\n(iii)  Compliance.  A local educational agency, group of schools, or school must comply with the procedures and requirements specified in paragraph (f)(4) of this section to participate in the community eligibility provision.\n\n(4)  Community eligibility provision procedures \u2014(i)  Election documentation and deadline.  A local educational agency, group of schools, or school that intends to elect the community eligibility provision for the following year for one or more schools must submit to the State agency documentation demonstrating the LEA, group of schools, or school meets the identified student percentage, as specified under paragraph (f)(3)(i) of this section. Such documentation must be submitted no later than June 30 and must include, at a minimum, the counts of identified students and enrolled students as of April 1 of the school year prior to CEP implementation.\n\n(ii)  State agency review of election documentation.  The State agency must review the identified student percentage documentation submitted by the local educational agency to confirm that the local educational agency, group of schools, or school meets the minimum identified student percentage, participates in the National School Lunch Program and School Breakfast Program, and has a record of administering the meal program in accordance with program regulations, as indicated by the most recent administrative review.\n\n(iii)  Meals at no cost.  A local educational agency must ensure participating schools offer reimbursable breakfasts and lunches at no cost to all students attending participating schools during the 4-year cycle, and count the number of reimbursable breakfasts and lunches served to students daily.\n\n(iv)  Household applications.  A local educational agency, group of schools, or school must not collect applications for free and reduced price school meals on behalf of children in schools participating in the community eligibility provision. Any local educational agency seeking to obtain socioeconomic data from children receiving free meals under this section must develop, conduct, and fund this effort entirely separate from, and not under the auspices of, the National School Lunch Program or School Breakfast Program.\n\n(v)  Free and paid claiming percentages.  Reimbursement is based on free and paid claiming percentages applied to the total number of reimbursable lunches and breakfasts served each month, respectively. Reduced price students are accounted for in the free claiming percentage, eliminating the need for a separate percentage.\n\n(A) To determine the free claiming percentage, multiply the applicable identified student percentage by a factor of 1.6. The product of this calculation may not exceed 100 percent. The difference between the free claiming percentage and 100 percent represents the paid claiming percentage. The applicable identified student percentage means:\n\n( 1 ) In the first year of participation in the community eligibility provision, the identified student percentage as of April 1 of the prior school year.\n\n( 2 ) In the second, third, and fourth year of the 4-year cycle, LEAs may choose the higher of the identified student percentage as of April 1 of the prior school year or the identified student percentage as of April 1 of the year prior to the current 4-year cycle. LEAs and schools may begin a new 4-year cycle with a higher identified student percentage based on data as of the most recent April 1, as specified in paragraph (viii).\n\n(B) To determine the number of lunches to claim for reimbursement, multiply the free claiming percentage as described in this paragraph by the total number of reimbursable lunches served to determine the number of free lunches to claim for reimbursement. The paid claiming percentage is multiplied by the total number of reimbursable lunches served to determine the number of paid lunches to claim for reimbursement. In the breakfast meal service, the free and paid claiming percentages are multiplied by the total number of reimbursable breakfasts served to determine the number of free and paid breakfasts to claim for reimbursement. For any claim, if the total number of meals claimed for free and paid reimbursement does not equal the total number of meals served, the paid category must be adjusted so that all served meals are claimed for reimbursement.\n\n(vi)  Multiplier factor.  A 1.6 multiplier must be used for an entire 4-year cycle to calculate the percentage of lunches and breakfasts to be claimed at the Federal free rate.\n\n(vii)  Cost differential.  If there is a difference between the cost of serving lunches and breakfasts at no cost to all participating children and the Federal assistance provided, the local educational agency must pay such difference with non-Federal sources of funds. Expenditure of additional non-federal funds is not required if all operating costs are covered by the Federal assistance provided.\n\n(viii)  New 4-year cycle.  To begin a new 4-year cycle, local educational agencies or schools must establish a new identified student percentage as of April 1 prior to the 4-year cycle. If the local educational agency, group of schools, or school meet the eligibility criteria set forth in paragraph (f)(3) of this section, a new 4-year cycle may begin.\n\n(ix)  Grace year.  A local educational agency, group of schools, or school with an identified student percentage of less than 25 percent but equal to or greater than 15 percent as of April 1 of the fourth year of a community eligibility cycle may continue using community eligibility for a grace year that continues the 4-year cycle for one additional, or fifth, year. If the local educational agency, group of schools, or school regains the 25 percent threshold as of April 1 of the grace year, the State agency may authorize a new 4-year cycle for the following school year. If the local educational agency, group of schools, or school does not regain the required threshold as of April 1 of the grace year, they must return to collecting household applications in the following school year in accordance with paragraph (j) of this section. Reimbursement in a grace year is determined by multiplying the identified student percentage at the local educational agency, group of schools, or school as of April 1 of the fourth year of the 4-year CEP cycle by the 1.6 multiplier.\n\n(5)  Identification of potential community eligibility schools.  No later than April 15 of each school year, each local educational agency must submit to the State agency a list(s) of schools as described in this paragraph. The State agency may exempt local educational agencies from this requirement if the State agency already collects the required information. The list(s) must include:\n\n(i) Schools with an identified student percentage of at least 25 percent;\n\n(ii) Schools with an identified student percentage that is less than 25 percent but greater than or equal to 15 percent; and\n\n(iii) Schools currently in year 4 of the community eligibility provision with an identified student percentage that is less than 25 percent but greater than or equal to 15 percent.\n\n(6)  State agency notification requirements.  No later than April 15 of each school year, the State agency must notify the local educational agencies described in this paragraph about their community eligibility status. Each State agency must notify:\n\n(i) Local educational agencies with an identified student percentage of at least 25 percent district wide, of the potential to participate in community eligibility in the subsequent year; the estimated cash assistance the local educational agency would receive; and the procedures to participate in community eligibility.\n\n(ii) Local educational agencies with an identified student percentage that is less than 25 percent district wide but greater than or equal to 15 percent, that they may be eligible to participate in community eligibility in the subsequent year if they meet the eligibility requirements set forth in paragraph (f)(3) of this section as of April 1.\n\n(iii) Local educational agencies currently using community eligibility district wide, of the options available in establishing claiming percentages for next school year.\n\n(iv) Local educational agencies currently in year 4 with an identified student percentage district wide that is less than 25 percent but greater than or equal to 15 percent, of the grace year eligibility.\n\n(7)  Public notification requirements.  By May 1 of each school year, the State agency must make the following information readily accessible on its Web site in a format prescribed by FNS:\n\n(i) The names of schools identified in paragraph (f)(5) of this section, grouped as follows: Schools with an identified student percentage of least 25 percent, schools with an identified student percentage of less than 25 percent but greater than or equal to 15 percent, and schools currently in year 4 of the community eligibility provision with an identified student percentage that is less than 25 percent but greater than or equal to 15 percent.\n\n(ii) The names of local educational agencies receiving State agency notification as required under paragraph (f)(6) of this section, grouped as follows: Local educational agencies with an identified student percentage of at least 25 percent district wide, local educational agencies with an identified student percentage that is less than 25 percent district wide but greater than or equal to 15 percent, local educational agencies currently using community eligibility district wide, and local educational agencies currently in year 4 with an identified student percentage district wide that is less than 25 percent but greater than or equal to 15 percent.\n\n(iii) The State agency must maintain eligibility lists as described in paragraphs (i) and (ii) of this section until such time as new lists are made available annually by May 1.\n\n(8)  Notification data.  For purposes of fulfilling the requirements in paragraphs (f)(5) and (6) of this section, the State agency must:\n\n(i) Obtain data representative of the current school year, and\n\n(ii) Use the identified student percentage as defined in paragraph (f)(1) of this section. If school-specific identified student percentage data are not readily available by school, use direct certifications as a percentage of enrolled students,  i.e.,  the percentage derived by dividing the number of students directly certified under \u00a7 245.6(b) by the number of enrolled students as defined in paragraph (f)(1) as an indicator of potential eligibility. If direct certification data are used, the State agency must clearly indicate that the data provided does not fully reflect the number of identified students.\n\n(iii) If data are not as of April 1 of the current school year, ensure the data includes a notation that the data are intended for informational purposes and do not confer eligibility for community eligibility. Local educational agencies must meet the eligibility requirements specified in paragraph (f)(3) of this section to participate in community eligibility.\n\n(9)  Other uses of the free claiming percentage.  For purposes of determining a school's or site's eligibility to participate in a Child Nutrition Program, a community eligibility provision school's free claiming percentage,  i.e.,  the product of the school's identified student percentage multiplied by 1.6, serves as a proxy for free and reduced price certification data.\n\n(g)  Policy statement requirement.  A local educational agency that elects to participate in the special assistance provisions or the community eligibility provision set forth in this section must:\n\n(1) Amend its Free and Reduced Price Policy Statement, specified in \u00a7 245.10 of this part, to include a list of all schools participating in each of the special assistance provisions specified in this section. The following information must also be included for each school:\n\n(i) The initial school year of implementing the special assistance provision;\n\n(ii) The school years the cycle is expected to remain in effect;\n\n(iii) The school year the special assistance provision must be reconsidered; and\n\n(iv) The available and approved data that will be used in reconsideration, as applicable.\n\n(2) Certify that the school(s) meet the criteria for participating in each of the special assistance provisions, as specified in paragraphs (a), (b), (c), (d), (e) or (f) of this section, as appropriate.\n\n(h)  Recordkeeping.  Local educational agencies that elect to participate in the special assistance provisions set forth in this section must retain implementation records for each of the participating schools. Failure to maintain sufficient records will result in the State agency requiring the school to return to standard meal counting and claiming procedures and/or fiscal action. Recordkeeping requirements include, as applicable:\n\n(1)  Base year records.  A local educational agency shall ensure that records as specified in \u00a7\u00a7 210.15(b) and 220.7(e) of this chapter which support subsequent year earnings are retained for the base year for schools under Provision 2 and Provision 3. In addition, records of enrollment data for the base year must be retained for schools under Provision 3. Such base year records must be retained during the period the provision is in effect, including all extensions, plus 3 fiscal years after the submission of the last Claim for Reimbursement which employed the base year data. Local educational agencies that conduct a streamlined base year must retain all records related to the statistical methodology and the determination of claiming percentages. Such records shall be retained during the period the provision is in effect, including all extensions, plus 3 fiscal years after the submission of the last Claim for Reimbursement which employed the streamlined base year data. In either case, if audit findings have not been resolved, base year records must be retained beyond the 3-year period as long as required for the resolution of the issues raised by the audit.\n\n(2)  Non-base year records.  Local educational agencies that are granted an extension of a provision must retain records of the available and approved socioeconomic data which is used to determine the income level of the school's population for the base year and year(s) in which extension(s) are made. In addition, State agencies must also retain records of the available and approved socioeconomic data which is used to determine the income level of the school's population for the base year and year(s) in which extensions are made. Such records must be retained at both the local educational agency level and at the State agency during the period the provision is in effect, including all extensions, plus 3 fiscal years after the submission of the last monthly Claim for Reimbursement which employed base year data. If audit findings have not been resolved, records must be retained beyond the 3-year period as long as required for the resolution of the issues raised by the audit. In addition, for schools operating under Provision 2, a local educational agency must retain non-base year records pertaining to total daily meal count information, edit checks and on-site review documentation. For schools operating under Provision 3, a local educational agency must retain non-base year records pertaining to total daily meal count information, the system of oversight or edit checks, on-site review documentation, annual enrollment data and the number of operating days, which are used to adjust the level of assistance. Such records shall be retained for three years after submission of the final monthly Claim for Reimbursement for the fiscal year.\n\n(3)  Records for the community eligibility provision.  Local educational agencies must ensure records are maintained, including: data used to calculate the identified student percentage, annual selection of the identified student percentage, total number of breakfasts and lunches served daily, percentages used to claim meal reimbursement, non-Federal funding sources used to cover any excess meal costs, and school-level information provided to the State agency for publication, if applicable. Documentation must be made available at any reasonable time for review and audit purposes. Such records shall be retained during the period the community eligibility provision is in effect, including all extensions, plus three fiscal years after the submission of the last Claim for Reimbursement which was based on the data. In any case, if audit findings have not been resolved, these records must be retained beyond the three-year period as long as required for the resolution of the issues raised by the audit.\n\n(i)  Availability of documentation.  Upon request, the local educational agency must make documentation available for review or audit to document compliance with the requirements of this section. Depending on the certification or reimbursement alternative used, such documentation includes, but is not limited to, enrollment data, participation data, identified student percentages, available and approved socioeconomic data that was used to grant an extension, if applicable, or other data. In addition, upon request from FNS, local educational agencies under Provision 2 or Provision 3, or State agencies must submit to FNS all data and documentation used in granting extensions including documentation as specified in paragraphs (c) and (e) of this section. Data used to establish a new cycle for the community eligibility provision must also be available for review.\n\n(j)  Restoring standard meal counting and claiming.  Under Provisions 1, 2, or 3 or community eligibility provision, a local educational agency may restore a school to standard notification, certification, and counting and claiming procedures at any time during the school year or for the following school year if standard procedures better suit the school's program needs. If standard procedures are restored during a school year, the local educational agency must offer all students reimbursable, free meals for a period of at least 30 operating days following the date of restoration of standard procedures or until a new eligibility determination is made, whichever comes first. Prior to the change taking place, but no later than June 30, the local educational agency must:\n\n(1) Notify the State agency of the intention to stop participating in a special assistance certification and reimbursement alternative under this section and seek State agency guidance and review regarding the restoration of standard operating procedures.\n\n(2) Notify the public and meet the certification and verification requirements of \u00a7\u00a7 245.6 and 245.6a in affected schools.\n\n(k)  Puerto Rico and Virgin Islands.  A local educational agency in Puerto Rico and the Virgin Islands, where a statistical survey procedure is permitted in lieu of eligibility determinations for each child, may: Maintain their standard procedures in accordance with \u00a7 245.4, select Provision 2 or Provision 3, or elect the community eligibility provision provided the applicable eligibility requirements as set forth in paragraphs (a) through (f) of this section are met. For the community eligibility provision, current direct certification data must be available to determine the identified student percentage.\n\n(l)  Transferring eligibility for free meals during the school year.  For student transfers during the school year within a local educational agency, a student's access to free, reimbursable meals under the special assistance certification and reimbursement alternatives specified in this section must be extended by a receiving school using standard counting and claiming procedures for up to 10 operating school days or until a new eligibility determination for the current school year is made, whichever comes first. For student transfers between local educational agencies, this requirement applies not later than July 1, 2019. At the State agency's discretion, students who transfer within or between local educational agencies may be offered free reimbursable meals for up to 30 operating days or until a new eligibility determination for the current school year is made, whichever comes first.\n\n(m)  Statistical income measurements.  Statistical income measurements that are used under this section to establish enrollment or participation base claiming percentages must comply with the standards outlined as follows:\n\n(1) For enrollment based claiming percentages, statistical income measurements must meet the following standards:\n\n(i) The sample frame shall be limited to enrolled students who have access to the school meals program;\n\n(ii) A sample of enrolled students shall be randomly selected from the sample frame;\n\n(iii) The response rate to the survey shall be at least 80 percent;\n\n(iv) The number of households that complete the survey shall be sufficiently large so that it can be asserted with 95 percent confidence that the true percentage of students who are enrolled in the school, have access to the school meals program, and are eligible for free meals is within plus or minus 2.5 percentage points of the point estimate determined from the sample; and\n\n(v) To minimize statistical bias, data from all households that complete the survey must be used when calculating the enrollment based claiming percentages for paragraphs (c)(2)(iii)(A) and (e)(2)(iii)(A) of this section.\n\n(2) For participation based claiming percentages, statistical income measurements must meet the following standards:\n\n(i) The sample frame must be limited to students participating in the meal program for which the participation based claiming percentages are being developed;\n\n(ii) The sample frame must represent multiple operating days, as established through guidance, in the meal program for which the participation based claiming percentages are being developed;\n\n(iii) A sample of participating students shall be randomly selected from the sample frame;\n\n(iv) The response rate to the survey shall be at least 80 percent;\n\n(v) The number of households that complete the survey shall be sufficiently large so that it can be asserted with 95 percent confidence that the true percentage of participating students who are eligible for free meals is within plus or minus 2.5 percentage points of the point estimate determined from the sample; and,\n\n(vi) To minimize statistical bias, data from all households that complete the survey must be used when calculating the participation based claiming percentages for paragraphs (c)(2)(iii)(B) and (e)(2)(iii)(B) of this section."], ["7:7:4.1.1.1.9.0.1.11", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.10 Action by local educational agencies.", "FNS", "", "", "[35 FR 14065, Sept. 4, 1970, as amended at 38 FR 14958, June 7, 1973; Amdt. 6, 39 FR 30339, Aug. 22, 1974; Amdt. 8, 40 FR 57208, Dec. 8, 1975; Amdt. 13, 44 FR 33049, June 8, 1979; 47 FR 746, Jan. 7, 1982; 48 FR 12511, Mar. 25, 1983; 64 FR 50744, Sept. 20, 1999; 64 FR 72474, Dec. 28, 1999; 72 FR 63796, Nov. 13, 2007; 76 FR 22802, Apr. 25, 2011]", "(a) Each local educational agencyof a school desiring to participate in the National School Lunch Program, School Breakfast Program, or to provide free milk under the Special Milk Program, or to become a commodity-only school shall submit for approval to the State agency a free and reduced price policy statement. Once approved, the policy statement shall be a permanent document which may be amended as necessary, except as specified in paragraph (c) of this section. Such policy statement, as a minimum, shall contain the following:\n\n(1) The official or officials designated by the local educational agency to make eligibility determinations on its behalf for free and reduced price meals or for free milk;\n\n(2) An assurance that for children who are not categorically eligible for free and reduced price benefits the local educational agency will determine eligibility for free and reduced price meals or free milk in accordance with the current Income Eligibility Guidelines.\n\n(3) The specific procedures the local educational agency will use in accepting applications from families for free and reduced price meals or for free milk. Additionally, the local educational agency must include the specific procedures it will use for obtaining documentation for determining children's eligibility through direct certification, in lieu of an application. Local educational agencies shall also provide households that are directly certified with a notice of eligibility, as specified in \u00a7 245.6(c)(2) and shall include in their policy statement a copy of such notice.\n\n(4) A description of the method or methods to be used to collect payments from those children paying the full price of the meal or milk, or a reduced price of a meal, which will prevent the overt identification of the children receiving a free meal or free milk or a reduced price meal, and\n\n(5) An assurance that the school will abide by the hearing procedure set forth in \u00a7 245.7 and the nondiscrimination practices set forth in \u00a7 245.8.\n\n(b) The policy statement submitted by each local educational agency shall be accompanied by a copy of the application form to be used by the school and of the proposed letter or notice to parents.\n\n(c) Each local educational agency shall amend its permanent free and reduced price policy statement to reflect substantive changes. Any amendment to a policy shall be approved by the State agency prior to implementation, or as provided in paragraph (e) of this section. Each year, if a local educational agency does not have its policy statement approved by the State agency, or FNSRO where applicable, by October 15, reimbursement shall be suspended for any meals or milk served until such time as the local educational agency's free and reduced price policy statement has been approved by the State agency, or FNSRO where applicable. Furthermore, no commodities donated by the Department shall be used in any school after October 15, until such time as the local educational agency's free and reduced price policy statement has been approved by the State agency, or FNSRO where applicable. Once the local educational agency's free and reduced price policy statement has been approved, reimbursement may be allowed, at the discretion of the State agency, or FNSRO where applicable, for eligible meals and milk served during the period of suspension.\n\n(d) If any free and reduced price policy statement submitted for approval by any local educational agency to the State agency, or FNSRO where applicable, is determined to be not in compliance with the provisions of this part, the local educational agency shall submit a policy statement that does meet the provisions within 30 days after notification by the State agency, or FNSO where applicable.\n\n(e) When revision of a local educational agency's approved free and reduced price policy statement is necessitated because of a change in the family-size income standards of the State agency, or FNSRO where applicable, or because of other program changes, the local educational agency shall have 60 days from the date the State agency announces the change in which to have its revised policy statement approved by the State agency, or FNSRO where applicable. In the event that a local educational agency's proposed revised free and reduced price policy statement has not been submitted to, and approved by, the State agency, or FNSRO where applicable, within 60 days following the public announcement by the State agency, reimbursement shall be suspended for any meals or milk served after the end of the 60-day period. No commodities donated by the Department shall be used in any school after the end of the 60-day period, until such time as the local educational agency's free and reduced price policy statement has been approved by the State agency, or FNSRO where applicable. Reimbursement may be allowed at the discretion of the State agency, or FNSRO where applicable, for eligible meals and milk served during the period of suspension once the local educational agency's free and reduced price policy statement has been approved by the State agency, or FNSRO where applicable. Pending approval of a revision of a policy statement, the existing statement shall remain in effect."], ["7:7:4.1.1.1.9.0.1.12", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.11 Second review of applications.", "FNS", "", "", "[79 FR 7054, Feb. 6, 2014]", "(a)  General.  On an annual basis not later than the end of each school year, State agencies must identify local educational agencies demonstrating a high level of, or risk for, administrative error associated with certification processes and notify the affected local educational agencies that they must conduct a second review of applications beginning in the following school year. The second review of applications must be completed prior to notifying the household of the eligibility or ineligibility of the household for free or reduced price meals.\n\n(b)  State agency requirements \u2014(1)  Selection criteria.  Local educational agencies subject to a second review must include:\n\n(i)  Administrative review certification errors.  All local educational agencies with 10 percent or more of the certification/benefit issuances in error, as determined by the State agency during an administrative review; and\n\n(ii)  State agency discretion.  Local educational agencies not selected under paragraph (b)(1)(i) that are at risk for certification error, as determined by the State agency.\n\n(2)  Reporting requirement.  Beginning March 15, 2015, and every March 15 thereafter, each State agency must submit a report, as specified by FNS, describing the results of the second reviews conducted by each local educational agency in their State. The report must provide information about applications reviewed in each local educational agency and include:\n\n(i) The number of free and reduced price applications subject to a second review;\n\n(ii) The number of reviewed applications for which the eligibility determination was changed;\n\n(iii) The percentage of reviewed applications for which the eligibility determination was changed; and\n\n(iv) A summary of the types of changes that were made.\n\n(3) State agencies must provide technical assistance to ameliorate certification related problems at local educational agencies determined to be at risk for certification.\n\n(c)  Local educational agency requirements.  Beginning July 1, 2014, and each July 1 thereafter, local educational agencies selected by the State agency to conduct a second review of applications must ensure that the initial eligibility determination for each application is reviewed for accuracy prior to notifying the household of the eligibility or ineligibility of the household for free and reduced price meals. The second review must be conducted by an individual or entity who did not make the initial determination. This individual or entity is not required to be an employee of the local educational agency but must be trained on how to make application determinations. All individuals or entities who conduct a second review of applications are subject to the disclosure requirements set forth in \u00a7 245.6(f) through (k).\n\n(1)  Timeframes.  The second review of initial determinations must be completed by the local educational agency in a timely manner and must not result in a delay in notifying the household, as set forth in \u00a7 245.6(c)(6)(i).\n\n(2)  Duration of requirement to conduct a second review of applications.  Selected local educational agencies must conduct a second review of applications annually until the State agency determines that local educational agency-provided documentation provided in accordance with paragraph (c)(3) of this section or data obtained by the State agency during an administrative review, demonstrates that no more than 5 percent of reviewed applications required a change in eligibility determination.\n\n(3)  Reporting requirement.  Each local educational agency required to conduct a second review of applications must annually submit to the State agency, on a date established by the State agency, the following information as of October 31st:\n\n(i) The number of free and reduced price applications subject to a second review;\n\n(ii) The number of reviewed applications for which the eligibility determination was changed;\n\n(iii) The percentage of reviewed applications for which the eligibility determination was changed; and\n\n(iv) A summary of the types of changes that were made."], ["7:7:4.1.1.1.9.0.1.13", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.12 Action by State agencies and FNSROs.", "FNS", "", "", "[35 FR 14065, Sept. 4, 1970. Redesignated at 79 FR 7054, Feb. 6, 2014]", "(a) Each State agency, or FNSRO where applicable, shall, for schools under its jurisdiction:\n\n(1) As necessary, each State agency or FNSRO, as applicable, shall issue a prototype free and reduced price policy statement and any other instructions to ensure that each local educational agency as defined in \u00a7 245.2 is fully informed of the provisions of this part. If the State elects to establish for all schools a maximum price for reduced price lunches that is less than 40 cents, the State shall establish such price in its prototype policy. Such State shall then receive the adjusted national average factor provided for in \u00a7 210.4(b);\n\n(2) Prescribe and publicly announce by July 1 of each fiscal year, in accordance with \u00a7 245.3(a), family-size income standards. Any standards prescribed by FNSRO with respect to nonprofit private schools shall be developed by FNSRO after consultation with the State agency.\n\n(a-1) When a revision of the family-size income standards of the State agency, or FNSRO where applicable, is necessitated because of a change in the Secretary's income poverty guidelines or because of other program changes, the State agency shall publicly announce its revised family-size income standards no later than 30 days after the Secretary has announced such change.\n\n(b) State agencies, and FNSRO where applicable, shall review the policy statements submitted by school-food authorities for compliance with the provisions of this part and inform the school-food authorities of any necessary changes or amendments required in any policy statement to bring such statement into compliance. They shall notify school-food authorities in writing of approval of their policy statements and shall direct them to distribute promptly the public announcements required under the provisions of \u00a7 245.5.\n\n(c) Each State agency, or FNSRO where applicable, shall instruct local educational agencies under their jurisdiction that they may not alter or amend the eligibility criteria set forth in an approved policy statement without advance approval of the State agency, or FNSRO where applicable.\n\n(d) Not later than 10 days after the State agency, or FNSRO where applicable, announces its family-size income standards, it shall notify local educational agencies in writing of any amendment to their free and reduced price policy statements necessary to bring the family-sized income criteria into conformance with the State agency's or FNSRO's family-size income standards.\n\n(e) Except as provided in \u00a7 245.10, the State agency, or FNSRO where applicable, shall neither disburse any funds, nor authorize the distribution of commodities donated by the Department to any school unless the local educational agency has an approved free and reduced price policy statement on file with the State Agency, or FNSRO where applicable.\n\n(f) Each State agency, or FNSRO where applicable, shall, in the course of its supervisory assistance, review and evaluate the performance of local educational agencies and of schools in fulfilling the requirements of this part, and shall advise local educational agencies of any deficiencies found and any corrective action required to be taken.\n\n(g) The State agency must notify FNS whether the TANF Program in their State is comparable to or more restrictive than the State's Aid to Families with Dependent Children Program that was in effect on June 1, 1995. Automatic eligibility and direct certification for TANF households is allowed only in States in which FNS has been assured that the TANF standards are comparable to or more restrictive than the program it replaced. State agencies must inform FNS when there is a change in the State's TANF Program that would no longer make households participating in TANF automatically eligible for free school meals.\n\n(h) The State agency shall take action to ensure the proper implementation of Provisions 1, 2, and 3. Such action shall include:\n\n(1)  Notification.  Notifying school food authorities of schools implementing Provision 2 and/or 3 that each Provision 2 or Provision 3 school must return to standard eligibility determination and meal counting procedures or apply for an extension under Provision 2 or 3. Such notification must be in writing, and be sent no later than February 15, or other date established by the State agency, of the fourth year of a school's current cycle;\n\n(2)  Return to standard procedures.  Returning the school to standard eligibility determination and meal counting procedures and fiscal action as required under \u00a7 210.19(c) of this chapter if the State agency determines that records were not maintained; and\n\n(3)  Technical assistance.  Providing technical assistance, adjustments to the level of financial assistance for the current school year, and returning the school to standard eligibility determination and meal counting procedures, as appropriate, if a State agency determines at any time that:\n\n(i) The school or school food authority has not correctly implemented Provision 1, Provision 2 or Provision 3;\n\n(ii) Meal quality has declined because of the implementation of the provision;\n\n(iii) Participation in the program has declined over time;\n\n(iv) Eligibility determinations or the verification procedures were incorrectly conducted; or\n\n(v) Meal counts were incorrectly taken or incorrectly applied.\n\n(4)  State agency recordkeeping.  State agencies shall retain the following information annually for the month of October and, upon request, submit to FNS:\n\n(i) The number of schools using Provision 1, Provision 2 and Provision 3 for NSLP;\n\n(ii) The number of schools using Provision 2 and Provision 3 for SBP only;\n\n(iii) The number of extensions granted to schools using Provision 2 and Provision 3 during the previous school year;\n\n(iv) The number of extensions granted during the previous year on the basis of SNAP/FDPIR data;\n\n(v) The number of extensions granted during the previous year on the basis of Temporary Assistance for Needy Families (TANF) data;\n\n(vi) The number of extensions granted during the previous year on the basis of local data collected by a city or county zoning and/or economic planning office;\n\n(vii) The number of extensions granted during the previous year on the basis of applications collected from enrolled students;\n\n(viii) The number of extensions granted during the previous year on the basis of statistically valid surveys of enrolled students; and\n\n(ix) The number of extensions granted during the previous year on the basis of alternate data as approved by the State agency's respective FNS Regional Office.\n\n(5)  State agency approval.  Prior to approval for participation under Provision 2 or Provision 3, State agencies shall ensure school and/or school food authority program compliance as required under \u00a7\u00a7 210.19(a)(4) and 220.13(k) of this chapter.\n\n(i) No later than February 1, 2013, and by February 1st each year thereafter, each State agency must collect annual verification data from each local educational agency as described in \u00a7 245.6a(h). Each State agency must analyze these data, determine if there are potential problems, and formulate corrective actions and technical assistance activities that will support the objective of certifying only those children eligible for free or reduced price meals. No later than March 15, 2013, and by March 15th each year thereafter, each State agency must report to FNS, in a consolidated electronic file by local educational agency, the verification information that has been reported to it as required under \u00a7 245.6a(h). State agencies are encouraged to collect and report any or all verification data elements before the required dates."], ["7:7:4.1.1.1.9.0.1.14", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.13 State agencies and direct certification requirements.", "FNS", "", "", "[78 FR 12230, Feb. 22, 2013. Redesignated at 79 FR 7054, Feb. 6, 2014; 81 FR 50210, July 29, 2016]", "(a)  Direct certification requirements.  State agencies are required to meet the direct certification performance benchmarks set forth in paragraph (b) of this section for directly certifying children who are members of households receiving assistance under SNAP. A State agency that fails to meet the benchmark must develop and submit to FNS a continuous improvement plan (CIP) to fully meet the requirements of this paragraph and to improve direct certification for the following school year in accordance with the provisions in paragraphs (e), (f), and (g) of this section.\n\n(b)  Direct certification performance benchmarks.  State agencies must meet performance benchmarks for directly certifying for free school meals children who are members of households receiving assistance under SNAP. The performance benchmarks are as follows:\n\n(1) 80% for the school year beginning July 1, 2011;\n\n(2) 90% for the school year beginning July 1, 2012; and\n\n(3) 95% for the school year beginning July 1, 2013, and for each school year thereafter.\n\n(c)  Data elements required for direct certification rate calculation.  Each State agency must provide FNS with specific data elements each year, as follows:\n\n(1)  Data Element #1 \u2014The number of children who are members of households receiving assistance under SNAP that are directly certified for free school meals as of the last operating day in October, collected and reported in the same manner and timeframes as specified in \u00a7 245.11(i).\n\n(2)  Data Element #2 \u2014The unduplicated count of children ages 5 to 17 years old who are members of households receiving assistance under SNAP at any time during the period July 1 through September 30. This data element must be provided by the SNAP State agency, as required under 7 CFR 272.8(a)(5), and reported to FNS and to the State agency administering the NSLP in the State by December 1st each year, in accordance with guidelines provided by FNS.\n\n(3)  Data Element #3 \u2014The count of the number of children who are members of households receiving assistance under SNAP who attend a school operating under the provisions of 7 CFR 245.9 in a year other than the base year or that is exercising the community eligibility provision (CEP). The proxy for this data element must be established each school year through the State's data matching efforts between SNAP records and student enrollment records for these special provision schools that are operating in a non-base year or that are exercising the CEP. Such matching efforts must occur in or close to October each year, but no later than the last operating day in October. However, States that have special provision schools exercising the CEP may alternatively choose to include, for these schools, the count from the SNAP match conducted as of April 1 of the same calendar year, whether or not it was used in the CEP claiming percentages. State agencies must report this aggregated data element to FNS by December 1 each year, in accordance with guidelines provided by FNS.\n\n(d)  State notification.  For each school year, FNS will notify State agencies that fail to meet the direct certification performance benchmark.\n\n(e)  Continuous improvement plan required.  A State agency having a direct certification rate with SNAP that is less than the direct certification performance benchmarks set forth in paragraph (b) of this section must submit to FNS for approval, within 90 days of notification, a CIP in accordance with paragraph (f) of this section.\n\n(f)  Continuous improvement plan required components.  CIPs must include, at a minimum:\n\n(1) The specific measures that the State will use to identify more children who are eligible for direct certification, including improvements or modifications to technology, information systems, or databases;\n\n(2) A multiyear timeline for the State to implement these measures;\n\n(3) Goals for the State to improve direct certification results for the following school year; and\n\n(4) Information about the State's progress toward implementing other direct certification requirements, as provided in FNS guidance.\n\n(g)  Continuous improvement plan implementation.  A State must maintain its CIP and implement it according to the timeframes in the approved plan."], ["7:7:4.1.1.1.9.0.1.15", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.14 Fraud penalties.", "FNS", "", "", "[Amdt. 14, 44 FR 37901, June 29, 1979, as amended at 64 FR 50744, Sept. 20, 1999. Redesignated at 78 FR 12230, Feb. 22, 2013, and further redesignated at 79 FR 7054, Feb. 6, 2014]", "(a) Whoever embezzles, willfully misapplies, steals, or obtains by fraud any funds, assets, or property provided under this part, whether received directly or indirectly from the Department, shall\u2014\n\n(1) If such funds, assets, or property are of a value of $100 or more, be fined not more than $25,000 or imprisoned not more than five years of both; or\n\n(2) If such funds, assets, or property are of a value of less than $100, be fined not more than $1,000 or imprisoned not more than one year or both.\n\n(b) Whoever receives, conceals, or retains to his use or gain funds, assets, or property provided under this part, whether received directly or indirectly from the Department, knowing such funds, assets, or property have been embezzled, willfully misapplied, stolen, or obtained by fraud, shall be subject to the same penalties provided in paragraph (a) of this section."], ["7:7:4.1.1.1.9.0.1.16", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.15 Information collection/recordkeeping\u2014OMB assigned control numbers.", "FNS", "", "", "[72 FR 68985, Dec. 6, 2007, as amended at 73 FR 11312, Mar. 3, 2008. Redesignated at 78 FR 12230, Feb. 22, 2013, and further redesignated at 79 FR 7054, Feb. 6, 2014]", ""], ["7:7:4.1.1.1.9.0.1.2", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.2 Definitions.", "FNS", "", "", "", "Adult  means any individual 21 years of age or older.\n\nCategorically eligible  means considered income eligible for free meals or free milk, as applicable, based on documentation that a child is a member of a  Family , as defined in this section, and one or more children in that family are receiving assistance under  SNAP, FDPIR  or the  TANF  program, as defined in this section. A  Foster child,   Homeless child , a  Migrant child , a  Head Start child  and a  Runaway child , as defined in this section, are also categorically eligible. Categorical eligibility and automatic eligibility may be used synonymously.\n\nCommodity school  means a school which does not participate in the National School Lunch Program under part 210 of this chapter, but which enters into an agreement as provided in \u00a7 210.15a(b) to receive commodities donated under part 250 of this chapter for a nonprofit lunch program.\n\nCurrent income  means income, as defined in \u00a7 245.6(a), received during the month prior to application. If such income does not accurately reflect the household's annual rate of income, income shall be based on the projected annual household income. If the prior year's income provides an accurate reflection of the household's current annual income, the prior year may be used as a base for the projected annual rate of income.\n\nDirect certification  means determining a child is eligible for free meals or free milk, as applicable, based on documentation obtained directly from the appropriate State or local agency or individuals authorized to certify that the child is a member of a household receiving assistance under  SNAP , as defined in this section; is a member of a household receiving assistance under  FDPIR  or under the  TANF  program, as defined in this section; a  Foster child,   Homeless child , a  Migrant child,  a  Head Start child  and a  Runaway child , as defined in this section.\n\nDisclosure  means reveal or use individual children's program eligibility information obtained through the free and reduced price meal or free milk eligibility process for a purpose other than for the purpose for which the information was obtained. The term refers to access, release, or transfer of personal data about children by means of print, tape, microfilm, microfiche, electronic communication or any other means.\n\nDocumentation  means:\n\n(1) The completion of a free and reduced price school meal or free milk application which includes:\n\n(i) For households applying on the basis of income and household size, names of all household members; income received by each household member, identified by source of the income (such as earnings, wages, welfare, pensions, support payments, unemployment compensation, and social security and other cash income); the signature of an adult household member; and the last four digits of the social security number of the adult household member who signs the application or an indication that the adult does not possess a social security number; or\n\n(ii) For a child who is receiving assistance under  SNAP, FDPIR  or  TANF , as defined in this section, the child's name and appropriate SNAP or TANF case number or FDPIR case number or other FDPIR identifier and signature of an adult household member.\n\n(2) In lieu of completion of the free and reduced price meal application:\n\n(i) Information obtained from the State or local agency responsible for administering  SNAP, FDPIR  or  TANF , as defined in this section. Documentation for these programs includes the name of the child; a statement certifying that the child is a member of a household receiving assistance under  SNAP, FDPIR  or  TANF , as defined in this section; information in sufficient detail to match the child attending school in the local educational agency with the name of a child who is a member of one of the applicable programs as defined in this section; the signature of the official from the applicable program who is authorized to provide such documentation on behalf of that program and the date that the official signed the certification statement;\n\n(ii) A letter or other document provided to the household by the agency administering  FDPIR  or the  TANF  program, as defined in this section or by the court, entity, or official authorized to administer an eligible program for a  Foster child,  a  Homeless child,  a  Migrant child,  a  Head Start child,  or a  Runaway child  as defined in this section.\n\n(iii) Information from the local educational agency, such as enrollment information or information from applications submitted for free or reduced price meals, or from SNAP, FDPIR or TANF program officials that indicate there are children in a  Family,  as defined in this section, who were not documented as receiving assistance under SNAP, FDPIR or TANF, in order to extend categorical eligibility to such children as found in \u00a7 245.6(b)(7). Documentation for these purposes is the information discussed in paragraph (2)(i) of this definition ,  plus a written statement by a local educational agency official briefly explaining how the presence of additional children in the family was determined.\n\n(iv) Information obtained from an official responsible for determining if a child is a  Foster child,  a  Homeless child,  a  Migrant child,  a  Head Start child,  or a  Runaway child,  as defined in the section. Documentation for these children includes the name of the child; a statement certifying that the child has been determined eligible for that program or is enrolled in the Head Start Program; information in sufficient detail to match the child attending school in the local educational agency with the name of a child who has been determined eligible for that program or is enrolled in an eligible Head Start Program; the signature of the official from the program who is authorized to provide such documentation on behalf of that program and the date that the official signed the certification statement. Documentation may also be a list of children, a computer match, or a court document that includes this information.\n\n(v) When a signature is impracticable to obtain, such as in a computer match, the local educational agency shall have a method to ensure that a responsible official can attest to the accuracy of the information provided.\n\nFamily  means a group of related or nonrelated individuals, who are not residents of an institution or boarding house, but who are living as one economic unit.\n\nFDPIR  means the food distribution program for households on Indian reservations operated under part 253 of this title.\n\nFNS  means the Food and Nutrition Service, United States Department of Agriculture.\n\nFNSRO where applicable  means the appropriate Food and Nutrition Service Regional Office when that agency administers the National School Lunch Program, School Breakfast Program or Special Milk Program with respect to nonprofit private schools.\n\nFoster child  means a child who is formally placed by a court or an agency that administers a State plan under parts B or E of title IV of the Social Security Act (42 U.S.C. 621  et seq. ). It does not include a child in an informal arrangement that may exist outside of State or court based systems.\n\nFree meal  means a meal for which neither the child nor any member of his family pays or is required to work in the school or in the school's food service.\n\nFree milk  means milk served under the regulations governing the Special Milk Program and for which neither the child nor any member of his family pays or is required to work in the school or in the school's food service.\n\nHead Start child  means a child enrolled as a participant in a Head Start program authorized under the Head Start Act (42 U.S.C. 9831  et seq. )\n\nHomeless child  means a child identified as lacking a fixed, regular and adequate nighttime residence, as specified under section 725(a) of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11434a(2)) by the local educational agency liaison, director of a homeless shelter or other individual identified by FNS.\n\nHousehold  means \u201cfamily\u201d as defined in this section.\n\nHousehold application  means an application for free and reduced price meal or milk benefits, submitted by a household for a child or children who attend school(s) in the same local educational agency.\n\nIncome eligibility guidelines  means the family-size income levels prescribed annually by the Secretary for use by States in establishing eligibility for free and reduced price meals and for free milk.\n\nLocal educational agency  means a public board of education or other public or private nonprofit authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public or private nonprofit elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or for a combination of school districts or counties that is recognized in a State as an administrative agency for its public or private nonprofit elementary schools or secondary schools. The term also includes any other public or private nonprofit institution or agency having administrative control and direction of a public or private nonprofit elementary school or secondary school, including residential child care institutions, Bureau of Indian Affairs schools, and educational service agencies and consortia of those agencies, as well as the State educational agency in a State or territory in which the State educational agency is the sole educational agency for all public or private nonprofit schools.\n\nMeal  means a lunch or meal supplement or a breakfast which meets the applicable requirements prescribed in \u00a7\u00a7 210.10, 210.15a, and 220.8 of this chapter.\n\nMedicaid  means the State medical assistance program under title XIX of the Social Security Act (42 U.S.C. 1396  et seq. ).\n\nMigrant child  means a child identified as meeting the definition of migrant in section 1309 of the Elementary and Secondary Education Act of 1965 (20 U.S.C. 6399) by the State or local Migrant Education Program coordinator or the local educational liaison, or other individual identified by FNS.\n\nMilk  means pasteurized fluid types of unflavored or flavored whole milk, lowfat milk, skim milk, or cultured buttermilk which meet State and local standards for such milk except that, in the meal pattern for infants (0 to 1 year of age) milk means unflavored types of whole fluid milk or an equivalent quantity of reconstituted evaporated milk which meet such standards. In Alaska, Hawaii, American Samoa, Guam, Puerto Rico, the Trust Territory of the Pacific Islands, and the Virgin Islands, if a sufficient supply of such types of fluid milk cannot be obtained, \u201cmilk\u201d shall include reconstituted or recombined milk. All milk should contain vitamins A and D at levels specified by the Food and Drug Administration and consistent with State and local standards for such milk.\n\nNonprofit  means exempt from income tax under section 501(c)(3) of the Internal Revenue Code of 1986.\n\nOperating day  means a day that reimbursable meals are offered to eligible students under the National School Lunch Program or School Breakfast Program.\n\nReduced price meal  means a meal which meets all of the following criteria: (1) The price shall be less than the full price of the meal; (2) the price shall not exceed 40 cents for a lunch and 30 cents for a breakfast; and (3) neither the child nor any member of his family shall be required to supply an equivalent value in work for the school or the school's food service.\n\nRunaway child  means a child identified as a runaway receiving assistance under a program under the Runaway and Homeless Youth Act (42 U.S.C. 5701  et seq. ) by the local educational liaison, or other individual in accordance with guidance issued by FNS.\n\nService institution  shall have the meaning ascribed to it in part 225 of this chapter.\n\nSchool, school food authority,  and other terms and abbreviations used in this part shall have the meanings ascribed to them in part 210 of this chapter.\n\nSNAP  means the Supplemental Nutrition Assistance Program established under the Food and Nutrition Act of 2008 (7 U.S.C. 2011  et. seq. ) and operated under parts 271 and 283 of this chapter.\n\nSNAP household  means any individual or group of individuals currently certified to receive assistance as a household from  SNAP.\n\nSpecial Assistance Certification and Reimbursement Alternatives  means the three optional alternatives for free and reduced price meal application and claiming procedures in the National School Lunch Program and School Breakfast Program which are available to those School Food Authorities with schools in which at least 80 percent of the enrolled children are eligible for free or reduced price meals, or schools which are currently, or who will be serving all children free meals.\n\nState Children's Health Insurance Program (SCHIP)  means the State medical assistance program under title XXI of the Social Security Act (42 U.S.C. 1397aa  et seq. ).\n\nTANF  means the State funded program under part A of title IV of the Social Security Act that the Secretary determines complies with standards established by the Secretary that ensure that the standards under the State program are comparable to or more restrictive than those in effect on June 1, 1995. This program is commonly referred to as Temporary Assistance for Needy Families, although States may refer to the program by another name.\n\nVerification  means confirmation of eligibility for free or reduced price benefits under the National School Lunch Program or School Breakfast Program. Verification shall include confirmation of income eligibility and, at State or local discretion, may also include confirmation of any other information required in the application which is defined as  Documentation  in \u00a7 245.2. Such verification may be accomplished by examining information provided by the household such as wage stubs, or by other means as specified in \u00a7 245.6a(a)(7). If a SNAP or TANF case number or a FDPIR case number or other identifier is provided for a child, verification for such child shall only include confirmation that the child is a member of a household receiving SNAP, TANF or FDPIR benefits. Verification may also be completed through direct contact with one or more of the public agencies as specified in \u00a7 245.6a(g)."], ["7:7:4.1.1.1.9.0.1.3", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.3 Eligibility standards and criteria.", "FNS", "", "", "[Amdt. 8, 40 FR 57207, Dec. 8, 1975; 40 FR 58281, Dec. 16, 1975, as amended by Amdt. 10, 41 FR 28783, July 13, 1976; Amdt. 13, 44 FR 33049, June 8, 1979; 47 FR 31852, July 23, 1982; 72 FR 63793, Nov. 13, 2007; 76 FR 22800, Apr. 25, 2011]", "(a) Each State agency, or FNSRO where applicable, shall by July 1 of each year announce family-size income standards to be used by local educational agencies, as defined in \u00a7 245.2, under the jurisdiction of such State agency, or FNSRO where applicable, in making eligibility determinations for free or reduced price meals and for free milk. Such family size income standards for free and reduced price meals and for free milk shall be in accordance with Income Eligibility Guidelines published by the Department by notice in the  Federal Register.\n\n(b) Each participating local educational agency and all participating schools under its jurisdiction must adhere to the eligibility criteria specified in this part. Local educational agencies must include these eligibility criteria in their policy statement as required under \u00a7 245.10 and it must be publicly announced in accordance with the provisions of \u00a7 245.5. Additionally, each State agency, or FNSRO where applicable, must require that local educational agencies accept as income eligible for free meals and free milk, children who are categorically eligible for those benefits based on documentation of eligibility, as specified in \u00a7 245.6 (b).\n\n(c) Each School Food Authority shall serve free and reduced price meals or free milk in the respective programs to children eligible under its eligibility criteria. When a child is not a member of a family (as defined in \u00a7 245.2), the child shall be considered a family of one. In any school which participates in more than one of the child nutrition programs, eligibility shall be applied uniformly so that eligible children receive the same benefits in each program. If a child transfers from one school to another school under the jurisdiction of the same School Food Authority, his eligibility for free or reduced price meals or for free milk, if previously established, shall be transferred to, and honored by, the receiving school if it participates in the National School Lunch Program, School Breakfast Program, Special Milk Program and the School Food Authority has elected to provide free milk, or is a commodity-only school."], ["7:7:4.1.1.1.9.0.1.4", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.4 Exceptions for Puerto Rico and the Virgin Islands.", "FNS", "", "", "[Amdt. 18, 45 FR 52771, Aug. 8, 1980, as amended at 46 FR 51366, Oct. 20, 1981; 47 FR 746, Jan. 7, 1982]", "Because the State agencies of Puerto Rico and the Virgin Islands provide free meals or milk to all children in schools under their jurisdiction, regardless of the economic need of the child's family, they are not required to make individual eligibility determinations or publicly announce eligibility criteria. Instead, such State agencies may use a statistical survey to determine the number of children eligible for free or reduced price meals and milk on which a percentage factor for the withdrawal of special cash assistance funds will be developed subject to the following conditions:\n\n(a) State agencies shall conduct a statistical survey once every three years in accordance with the standards provided by FNS;\n\n(b) State agencies shall submit the survey design to FNS for approval before proceeding with the survey;\n\n(c) State agencies shall conduct the survey and develop the factor for withdrawal between July 1 and December 31 of the first school year of the three-year period;\n\n(d) State agencies shall submit the results of the survey and the factor for fund withdrawal to FNS for approval before any reimbursement may be received under that factor;\n\n(e) State agencies shall keep all material relating to the conduct of the survey and determination of the factor for fund withdrawal in accordance with the record retention requirements in \u00a7 210.8(e)(14) of this chapter;\n\n(f) Until the results of the triennial statistical survey are available, the factor for fund withdrawal will be based on the most recently established percentages. The Department shall make retroactive adjustments to the States' Letter of Credit, if appropriate, for the year of the survey;\n\n(g) If any school in these States wishes to charge a student for meals, the State agency, School Food Authority and school shall comply with all the applicable provisions of this part and parts 210, 215 and 220 of this chapter."], ["7:7:4.1.1.1.9.0.1.5", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.5 Public announcement of the eligibility criteria.", "FNS", "", "", "[Amdt. 8, 40 FR 57207, Dec. 8, 1975]", "(a) After the State agency, or FNSRO where applicable, notifies the local educational agency (as defined in \u00a7 245.2) that its criteria for determining the eligibility of children for free and reduced price meals and for free milk have been approved, the local educational agency (as defined in \u00a7 245.2) shall publicly announce such criteria:  Provided however,  that no such public announcement shall be required for boarding schools, residential child care institutions (see \u00a7 210.2 of this chapter, definition of  Schools ), or a school which includes food service fees in its tuition, where all attending children are provided the same meals or milk. Such announcements shall be made at the beginning of each school year or, if notice of approval is given thereafter, within 10 days after the notice is received. The public announcement of such criteria, as a minimum, shall include the following:\n\n(1) Except as provided in \u00a7 245.6(b), a letter or notice and application distributed on or about the beginning of each school year, to the parents of all children in attendance at school. The letter or notice shall contain the following information:\n\n(i) In schools participating in a meal service program, the eligibility criteria for  reduced price  benefits with an explanation that households with incomes less than or equal to the reduced price criteria would be eligible for either free or reduced price meals, or in schools participating in the free milk option, the eligibility criteria for  free  milk benefits;\n\n(ii) How a household may make application for free or reduced price meals or for free milk for its children;\n\n(iii) An explanation that an application for free or reduced price benefits cannot be approved unless it contains complete information as described in paragraph (1)(i) of the definition of  Documentation  in \u00a7 245.2;\n\n(iv) An explanation that households with children who are members of currently certified SNAP, FDPIR or TANF households may submit applications for these children with the abbreviated information described in paragraph (2)(ii) of the definition of  Documentation  in \u00a7 245.2;\n\n(v) An explanation that the information on the application may be verified at any time during the school year;\n\n(vi) How a household may apply for benefits at any time during the school year as circumstances change;\n\n(vii) A statement to the effect that children having parents or guardians who become unemployed are eligible for free or reduced price meals or for free milk during the period of unemployment,  Provided,  that the loss of income causes the household income during the period of unemployment to be within the eligibility criteria;\n\n(viii) The statement: \u201cIn the operation of child feeding programs, no child will be discriminated against because of race, sex, color, national origin, age or disability;\u201d\n\n(ix) An explanation that Head Start enrollees and foster, homeless, migrant, and runaway children, as defined in \u00a7 245.2, are categorically eligible for free meals and free milk and their families should contact the school for more information;\n\n(x) How a household may appeal the decision of the local educational agencywith respect to the application under the hearing procedure set forth in \u00a7 245.7. The letter or notice shall be accompanied by a copy of the application form required under \u00a7 245.6.\n\n(xi) A statement to the effect that the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) participants may be eligible for free or reduced price meals.\n\n(2) On or about the beginning of each school year, a public release, containing the same information supplied to parents, and including both free and reduced price eligibility criteria shall be provided to the informational media, the local unemployment office, and to any major employers contemplating large layoffs in the area from which the school draws its attendance.\n\n(b) Copies of the public release shall be made available upon request to any interested persons. Any subsequent changes in a school's eligibility criteria during the school year shall be publicly announced in the same manner as the original criteria were announced."], ["7:7:4.1.1.1.9.0.1.6", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.6 Application, eligibility and certification of children for free and reduced price meals and free milk.", "FNS", "", "", "[35 FR 14065, Sept. 4, 1970]", "(a)  General requirements\u2014content of application and descriptive materials.  Each local educational agency, as defined in \u00a7 245.2, for schools participating in the National School Lunch Program, School Breakfast Program or Special Milk Program or a commodity only school, shall provide meal benefit forms for use by families in making application for free or reduced price meals or free milk for their children.\n\n(1)  Household applications.  The State agency or local educational agency must provide a form that permits a household to apply for all children in that household who attend schools in the same local educational agency. The local educational agency must provide newly enrolled students with an application and determine eligibility promptly. The local educational agency cannot require the household to submit an application for each child attending its schools. The application shall be clear and simple in design and the information requested therein shall be limited to that required to demonstrate that the household does, or does not, meet the eligibility criteria for free or reduced price meals, respectively, or for free milk, provided by the local educational agency.\n\n(2)  Understandable communications.  Any communication with households for eligibility determination purposes must be in an understandable and uniform format and to the maximum extent practicable, in a language that parents and guardians can understand.\n\n(3)  Electronic availability.  In addition to the distribution of applications and descriptive materials in paper form as provided for in this section, the local educational agency may establish a system for executing household applications electronically and using electronic signatures. The electronic submission system must comply with the disclosure requirements in this section and with technical assistance and guidance provided by FNS. Descriptive materials may also be made available electronically by the local educational agency.\n\n(4)  Transferring eligibility status.  When a student transfers to a new school district, the new local educational agency may accept the eligibility determination from the student's former local educational agency without incurring liability for the accuracy of the initial determination. As required under paragraph (c)(3) of this section, the accepting local educational agency must make changes that occur as a result of verification activities or coordinated review findings conducted in that local educational agency.\n\n(5)  Required income information.  The information requested on the application with respect to the current income of the household must be limited to:\n\n(i) The income received by each member identified by the household member who received the income or an indication which household members had no income; and\n\n(ii) The source of the income (such as earnings, wages, welfare, pensions, support payments, unemployment compensation, social security and other cash income). Other cash income includes cash amounts received or withdrawn from any source, including savings, investments, trust accounts, and other resources which are available to pay for a child's meals or milk.\n\n(6)  Household members and social security numbers.  The application must require applicants to provide the names of all household members. In addition, the last four digits of the social security number of the adult household member who signs the application must be provided. If the adult member signing the application does not possess a social security number, the household must so indicate. However, if application is being made for a child(ren) who is a member of a household receiving assistance under the SNAP, or is in a FDPIR or TANF household, the application shall enable the household to provide the appropriate SNAP or TANF case number or FDPIR case number or other FDPIR identifier in lieu of names of all household members, household income information and social security number.\n\n(7)  Adult member's signature.  The application must be signed by an adult member of the family. The application must contain clear instructions with respect to the submission of the completed application to the official or officials designated by the local educational agency to make eligibility determinations. A household must be permitted to file an application at any time during the school year. A household may, but is not required to, report any changes in income, household size or program participation during the school year.\n\n(8)  Required statements for the application.  (i) The application and descriptive materials must include substantially the following statements:\n\n(A) \u201cThe Richard B. Russell National School Lunch Act requires the information on this application. You do not have to give the information, but if you do not, we cannot approve your child for free or reduced-price meals. You must include the last four digits of the social security number of the adult household member who signs the application. The last four digits of the social security number are not required when you list a Supplemental Nutrition Assistance Program (SNAP), Temporary Assistance for Needy Families (TANF) Program or Food Distribution Program on Indian Reservations (FDPIR) case number or other FDPIR identifier for your child or when you indicate that the adult household member signing the application does not have a social security number. We will use your information to determine if your child is eligible for free or reduced-price meals, and for administration and enforcement of the lunch and breakfast programs. We MAY share your eligibility information with education, health, and nutrition programs to help them evaluate, fund, or determine benefits for their programs, auditors for program reviews, and law enforcement officials to help them look into violations of program rules.\u201d\n\n(B) \u201cFoster, migrant, homeless, and runaway children, and children enrolled in a Head Start program are categorically eligible for free meals and free milk. If you are completing an application for these children, contact the school for more information.\u201d\n\n(ii) When either the State agency or the local educational agency plans to use or disclose children's eligibility information for non-program purposes, additional information, as specified in paragraph (h) of this section, must be added to this statement. State agencies and local educational agencies are responsible for drafting the appropriate statement.\n\n(9)  Attesting to information on the application.  The application must also include a statement, immediately above the space for signature, that the person signing the application certifies that all information furnished in the application is true and correct, that the application is being made in connection with the receipt of Federal funds, that school officials may verify the information on the application, and that deliberate misrepresentation of the information may subject the applicant to prosecution under applicable State and Federal criminal statutes. Applicants must attest to changes in information as specified in this paragraph (b), if changes are voluntarily reported in writing during the eligibility period.\n\n(b)  Direct certification.  In lieu of requiring a household to complete the free and reduced price meal or free milk application, as specified in paragraph (a) of this section, the local educational agency must certify children as eligible for free meals or free milk in accordance with paragraph (b)(1)(i) of this section or may certify children as eligible for free meals or free milk in accordance with paragraph (b)(2) of this section. If a household also submits an application for directly certified children, the direct certification eligibility determination will take precedence.\n\n(1)  Mandatory direct certification of children in SNAP households.  (i) All local educational agencies conducting eligibility determinations must directly certify children who are members of a household receiving assistance under  SNAP,  as defined in \u00a7 245.2, in School Year 2008-2009, which begins on July 1, 2008, and each subsequent school year.\n\n(ii) Schools participating only in the Special Milk Program authorized under part 215 of this chapter may directly certify children for that program but are not required to conduct direct certification with SNAP. In addition, residential child care institutions, as defined in paragraph (c) of the definition of  School  in \u00a7 210.2 of this chapter, that do not have non-residential children are also not required to conduct direct certification with SNAP.\n\n(iii) Beginning in School Year 2012-2013, direct certification shall be conducted using a data matching technique only and letters to household for direct certification may be used only as an additional means to notify households of children's eligibility based on receipt of SNAP benefits. The last period that letters to households may be used as the primary method for direct certification is School Year 2011-12.\n\n(iv) Each State agency must enter into an agreement with the State agency conducting eligibility determinations for  SNAP.  The agreement must specify the procedures that will be used to facilitate the direct certification of children who are members of a household receiving assistance under  SNAP,  as defined in \u00a7 245.2. The agreement must address procedures to comply with the requirements of paragraphs (b)(3) through (b)(9) of this section. Direct certification must allow for notifying parents that their children have been determined eligible for free meals or free milk, as applicable, and that no further application is required. Such agreements must address how phase-out of non-electronic matches as the primary method for conducting direct certification for SNAP will be completed by School Year 2012-2013. The agreement shall be maintained by the State agency.\n\n(v) Local educational agencies and schools currently operating Provision 2 or Provision 3 in non-base years, or the community eligibility provision, as permitted under \u00a7 245.9, are required to conduct a data match between Supplemental Nutrition Assistance Program records and student enrollment records at least once annually. State agencies may conduct data matching on behalf of LEAs and exempt LEAs from this requirement.\n\n(2)  Children who may be directly certified.  The local educational agency may directly certify children for free meals or free milk based on documentation received from the appropriate State or local agency that administers  FDPIR  or  TANF,  as defined in \u00a7 245.2, when that agency indicates that the children are members of a household receiving assistance under one of these programs. In addition, the local educational agency may directly certify children for free meals or free milk based on documentation from the appropriate State or local agency or other appropriate individual, as specified by FNS, that the child is a  Foster child,  a  Homeless child,  a  Migrant,  a  Runaway child,  or a  Head Start child,  as defined in \u00a7 245.2.\n\n(3)  Frequency of direct certification contacts with SNAP.  (i) Until School Year 2011-2012, local educational agencies must conduct direct certification activities with  SNAP  at least at the beginning of the school year.\n\n(ii) (A) Beginning in School Year 2011-2012, at a minimum, all local educational agencies must conduct direct certification as follows:\n\n( 1 ) At or around the beginning of the school year;\n\n( 2 ) Three months after the initial effort; and\n\n( 3 ) Six months after the initial effort.\n\n(B) The information used shall be the most recent available.\n\n(iii) The names of all newly enrolled children and all children not certified for free meals shall be submitted for the direct certification required in paragraph (b)(3)(ii)(B) and paragraph (b)(3)(ii)(C) of this section. Newly enrolled children must be provided with application materials in order to alleviate a delay in receipt of free meals or free milk if direct certification for these children cannot be completed promptly upon enrollment.\n\n(iv) State agencies are encouraged to conduct direct certification more frequently to obtain information about newly enrolled children or children who may be newly certified for that program's benefits.\n\n(4)  Frequency of direct certification with other programs.  Local educational agencies opting to conduct direct certification activities with FDPIR or TANF should conduct such activities at or around the beginning of the school year. Obtaining information about foster, homeless, migrant, or runaway children or Head Start enrollees should be done, at a minimum, at or around the beginning of the school year and when newly enrolled children or children newly eligible for those programs are being certified.\n\n(5)  Direct certification documentation.  (i) The required documentation for direct certification is provided in paragraph (2) of the definition of  Documentation  in \u00a7 245.2.\n\n(ii) (A) Beginning in School Year 2012-2013, direct certification with  SNAP  shall be conducted using a data matching technique only. Letters to households for direct certification may be used only as an additional means to notify households of children's eligibility based on receipt of SNAP benefits. The last period that letters to households may be used as the primary method for direct certification is School Year 2011-2012. While such notices cannot be the primary method used by a state to document receipt of  SNAP,  the local educational agency shall accept such a letter if presented by a household.\n\n(B) Letters or other documents may be used as the primary method for direct certification to document receipt of  FDPIR  or  TANF  benefits.\n\n(iii) Individual notices from officials of eligible programs for a  Foster child,  a  Homeless child,  a  Migrant child,  a  Runaway child,  or a  Head Start child,  as defined in \u00a7 245.2, may continue to be used. These notices are provided to school officials who must certify these children as eligible for free meals or free milk, as applicable, without further application, upon receipt of such notice.\n\n(6)  Officials who can provide documentation for direct certification.  (i) The local educational agency must accept documentation from officials of the State or local agency that administers SNAP, certifying that a child is a member of a household receiving assistance under  SNAP  as defined in \u00a7 245.2, or officials of the State or local agency that administers  FDPIR  or  TANF,  as defined in \u00a7 245.2, certifying that a child is a member of a household receiving assistance under one of those programs.\n\n(ii) For a  Foster child,  as defined in \u00a7 245.2, an official document indicating the status of the child as a foster child from an appropriate State or local agency or a court where the foster child received placement may provide appropriate documentation. In the case of a child who is a  Homeless child,  as defined in \u00a7 245.2, the director of a homeless shelter or the local educational liaison for homeless children and youth may provide the appropriate documentation. The Migrant Education Program coordinator or the local educational liaison, as applicable, may provide the supporting documentation for a  Migrant child,  as defined in \u00a7 245.2. For a  Head Start child,  as defined in \u00a7 245.2, an official from that program may supply the documentation indicating enrollment in the Head Start program. Once the appropriate official has provided the direct certification documentation to the local educational agency, the child must have free benefits made available as soon as possible but no later than three operating days after the date the local educational agency receives the direct certification documentation.\n\n(7)  Extension of eligibility to all children in a family.  If any child is identified as a member of a household receiving assistance under SNAP, FDPIR, or TANF, all children in the  Family,  as defined in \u00a7 245.2, shall be categorically eligible for free meals or free milk. This applies to children identified through direct certification or through a free and reduced price application.\n\n(8)  Foster, Homeless, Migrant, Runaway, or Head Start Children.  To be categorically eligible as a Foster child, a Homeless child, a Migrant child, a Runaway child, or a Head Start child, the child's individual eligibility or participation for these programs shall be established. Categorical eligibility based on these programs shall not be extended to other children in the household.\n\n(9)  Confidential nature of direct certification information.  Information about children or their households obtained through the direct certification process must be kept confidential and is subject to the limitations on disclosure of information in section 9 of the Richard B. Russell National School Lunch Act, 42 U.S.C. 1758. Therefore, information that a household is receiving benefits from SNAP, FDPIR or TANF or that a child is participating in another program which makes children categorically eligible for free school meals or free milk must be used solely for the purposes of direct certification for determining children's eligibility for free school meals or free milk and as otherwise permitted under \u00a7 245.6(f).\n\n(10)  Notification to families.  For children who are directly certified, local educational agencies are not required to provide application materials and notice to parents informing them of the availability of free and reduced price meal benefits, as specified in \u00a7 245.5(a), when that information is distributed by mail, individualized student packets, or other method which prevents overt identification of children eligible for direct certification.\n\n(c)  Determination of eligibility \u2014(1)  Duration of eligibility.  Except as otherwise specified in paragraph (c)(3) of this section, eligibility for free or reduced price meals, as determined through an approved application or by direct certification, must remain in effect for the entire school year and for up to 30 operating days into the subsequent school year. The local educational agency must determine household eligibility for free or reduced price meals either through direct certification or the application process at or about the beginning of the school year. The local educational agency must determine eligibility for free or reduced price meals when a household submits an application or, if feasible, through direct certification, at any time during the school year.\n\n(2)  Use of prior year's eligibility status.  Prior to the processing of applications or the completion of direct certification procedures for the current school year, children from households with approved applications or documentation of direct certification on file from the preceding year, shall be offered reimbursable free and reduced price meals or free milk, as appropriate. The local educational agency must extend eligibility to newly enrolled children when other children in their household (as defined in \u00a7 245.2) were approved for benefits the previous year. However, applications and documentation of direct certification from the preceding year shall be used only to determine eligibility for the first 30 operating days following the first operating day at the beginning of the school year, or until a new eligibility determination is made in the current school year, whichever comes first. At the State agency's discretion, students who, in the preceding school year, attended a school operating a special assistance certification and reimbursement alternative (as permitted in \u00a7 245.9)) may be offered free reimbursable meals for up to 30 operating days or until a new eligibility determination is made in the current school year, whichever comes first.\n\n(3)  Exceptions for year-long duration of eligibility \u2014(i)  Voluntary reporting of changes.  Households are not required to report changes in circumstances during the school year, but a household may voluntarily contact the local educational agency to report any changes. If the household voluntarily reports a change in income or in program participation that would result in loss of categorical eligibility, the local educational agency may only reduce benefits if the household requests the reduction in writing, for example, by submitting a new application.\n\n(ii) Households must attest to changes in information as specified in \u00a7 245.6(a)(9). In addition, benefits cannot be reduced by information received through other sources without the written consent of the household, except for information received through verification.\n\n(iii)  Changes resulting from verification or administrative reviews.  The local educational agency must change the children's eligibility status when a change is required as a result of verification activities conducted under \u00a7 245.6a or as a result of a review conducted in accordance with \u00a7 210.18 of this chapter.\n\n(4)  Calculating income.  The local educational agency must use the income information provided by the household on the application to calculate the household's total current income. When a household submits an application containing complete documentation, as defined in \u00a7 245.2, and the household's total current income is at or below the eligibility limits specified in the Income Eligibility Guidelines as defined in \u00a7 245.2, the children in that household must be approved for free or reduced price benefits, as applicable.\n\n(5)  Categorical eligibility \u2014(i)  SNAP, FDPIR, TANF  When a household submits an application containing the required SNAP, FDPIR or TANF documentation, as defined under  Documentation  in \u00a7 245.2, all children in that household shall be categorically eligible for free meals or free milk. Additionally, when the local educational agency obtains confirmation of eligibility for these programs through direct certification, all children who are identified as members of a  Family,  as defined in \u00a7 245.2, shall be categorically eligible for free meals or milk.\n\n(ii)  Foster, homeless, migrant, andrunaway children and Head Start enrollees.  Upon receipt of  Documentation,  as defined in paragraph (2)(ii) and (2)(iv) of the definition in \u00a7 245.2, the local educational agency must approve such children for free benefits without further application.\n\n(6)  Notice of approval \u2014(i)  Income applications.  The local educational agency must notify the household of the children's eligibility and provide the eligible children the benefits to which they are entitled within 10 operating days of receiving the application from the household.\n\n(ii)  Direct Certification.  Households approved for benefits based on information provided by the appropriate State or local agency responsible for the administration of the SNAP, FDPIR or TANF must be notified, in writing, that their children are eligible for free meals or free milk, that no application for free and reduced price school meals or free milk is required. The notice of eligibility must also inform the household that the parent or guardian must notify the local educational agency if they do not want their children to receive free benefits. However, when the parent or guardian transmits a notice of eligibility provided by the SNAP, FDPIR or TANF office, the local educational agency is not required to provide a separate notice of eligibility. The local educational agency must notify, in writing, households with children who are approved on the basis of documentation that they are  Categorically eligible,  as defined in \u00a7 245.2, that their children are eligible for free meals or free milk, and that no application is required.\n\n(iii)  Households declining benefits.  Children from households that notify the local educational agency that they do not want free or reduced price benefits must have their benefits discontinued as soon as possible. Any notification from the household declining benefits must be documented and maintained on file, as required under paragraph (e) of this section, to substantiate the eligibility determination.\n\n(7)  Denied applications and the notice of denial.  When the application furnished by a family is not complete or does not meet the eligibility criteria for free or reduced price benefits, the local educational agency must document and retain the reasons for ineligibility and must retain the denied application. In addition, the local educational agency must promptly provide written notice to each family denied benefits. At a minimum, this notice shall include:\n\n(i) The reason for the denial of benefits, e.g. income in excess of allowable limits or incomplete application;\n\n(ii) Notification of the right to appeal;\n\n(iii) Instructions on how to appeal; and\n\n(iv) A statement reminding parents that they may reapply for free or reduced price benefits at any time during the school year.\n\n(8)  Appeals of denied benefits.  A family that wishes to appeal an application that was denied may do so in accordance with the procedures established by the local educational agency as required by \u00a7 245.7. However, prior to initiating the hearing procedure, the family may request a conference to provide the opportunity for the family and local educational agency officials to discuss the situation, present information, and obtain an explanation of the data submitted in the application or the decision rendered. The request for a conference shall not in any way prejudice or diminish the right to a fair hearing. The local educational authority shall promptly schedule a fair hearing, if requested.\n\n(d)  Households that fail to apply.  After the letter to parents and the applications have been disseminated, the local educational agency may determine, based on information available to it, that a child for whom an application has not been submitted meets the local educational agency's eligibility criteria for free and reduced price meals or for free milk. In such a situation, the local educational agency shall complete and file an application for such child setting forth the basis of determining the child's eligibility. When a local educational agency has obtained a determination of individual family income and family-size data from other sources, it need not require the submission of an application for any child from a family whose income would qualify for free or reduced price meals or for free milk under the local educational agency's established criteria. In such event, the School Food Authority shall notify the family that its children are eligible for free or reduced price meals or for free milk. Nothing in this paragraph shall be deemed to provide authority for the local educational agency to make eligibility determinations or certifications by categories or groups of children.\n\n(e)  Recordkeeping.  The local educational agency must maintain documentation substantiating eligibility determinations on file for 3 years after the date of the fiscal year to which they pertain, except that if audit findings have not been resolved, the documentation must be maintained as long as required for resolution of the issues raised by the audit.\n\n(f)  Disclosure of children's free and reduced price meal or free milk eligibility information to education and certain other programs and individuals without parental consent.  The State agency or local educational agency, as appropriate, may disclose aggregate information about children eligible for free and reduced price meals or free milk to any party without parental notification and consent when children cannot be identified through release of the aggregate data or by means of deduction. Additionally, the State agency or local educational agency also may disclose information that identifies children eligible for free and reduced price meals or free milk to persons directly connected with the administration or enforcement of the programs and the individuals specified in this paragraph (f) without parent/guardian consent. The State agency or local educational agency that makes the free and reduced price meal or free milk eligibility determination is responsible for deciding whether to disclose children's free and reduced price meal or free milk eligibility information.\n\n(1)  Persons authorized to receive eligibility information.  Only persons directly connected with the administration or enforcement of a program or activity listed in paragraphs (f)(2) or (f)(3) of this section may have access to children's eligibility information, without parental consent. Persons considered directly connected with administration or enforcement of a program or activity listed in paragraphs (f)(2) or (f)(3) of this section are Federal, State, or local program operators responsible for the ongoing operation of the program or activity or responsible for program compliance. Program operators may include persons responsible for carrying out program requirements and monitoring, reviewing, auditing, or investigating the program. Program operators may include contractors, to the extent those persons have a need to know the information for program administration or enforcement. Contractors may include evaluators, auditors, and others with whom Federal or State agencies and program operators contract with to assist in the administration or enforcement of their program in their behalf.\n\n(2)  Disclosure of children's names and eligibility status only.  The State agency or local educational agency, as appropriate, may disclose, without parental consent, children's names and eligibility status (whether they are eligible for free or reduced price meals or free milk) to persons directly connected with the administration or enforcement of:\n\n(i) A Federal education program;\n\n(ii) A State health program or State education program administered by the State or local education agency;\n\n(iii) A Federal, State, or local means-tested nutrition program with eligibility standards comparable to the National School Lunch Program (i.e., food assistance programs for households with incomes at or below 185 percent of the Federal poverty level); or\n\n(iv) A third party contractor assisting in verification of eligibility efforts by contacting households who fail to respond to requests for verification of their eligibility.\n\n(3)  Disclosure of all eligibility information in addition to eligibility status.  In addition to children's names and eligibility status, the State agency or local educational agency, as appropriate, may disclose, without parental consent, all eligibility information obtained through the free and reduced price meals or free milk eligibility process (including all information on the application or obtained through direct certification) to:\n\n(i) Persons directly connected with the administration or enforcement of programs authorized under the Richard B. Russell National School Lunch Act or the Child Nutrition Act of 1966. This means that all eligibility information obtained for the National School Lunch Program, School Breakfast Program or Special Milk Program may be disclosed to persons directly connected with administering or enforcing regulations under the National School Lunch or School Breakfast Programs (Parts 210 and 220, respectively, of this chapter), Child and Adult Care Food Program (Part 226 of this chapter), Summer Food Service Program (Part 225 of this chapter) and the Special Supplemental Nutrition Program for Women, Infants and Children (WIC) (Part 246 of this chapter);\n\n(ii) The Comptroller General of the United States for purposes of audit and examination; and\n\n(iii) Federal, State, and local law enforcement officials for the purpose of investigating any alleged violation of the programs listed in paragraphs (g)(3) and (g)(4) of this section.\n\n(4)  Use of free and reduced price meal or free milk eligibility information by other programs other than Medicaid or the State Children's Health Insurance Program (SCHIP).  State agencies and local educational agencies may use free and reduced price meal or free milk eligibility information for administering or enforcing the National School Lunch, Special Milk or School Breakfast Programs (Parts 210, 215 and 220, respectively, of this chapter). Additionally, any other Federal, State, or local agency charged with administering or enforcing these programs may use the information for that purpose. Individuals and programs to which children's free and reduced price meal eligibility information has been disclosed under this section may use the information only in the administration or enforcement of the receiving program. No further disclosure of the information may be made.\n\n(g)  Disclosure of children's eligibility information to Medicaid and/or SCHIP, unless parents decline.  Children's free or reduced price meal or free milk eligibility information only may be disclosed to Medicaid or SCHIP when both the State agency and the local educational agency so elect, the parent/guardian does not decline to have their eligibility information disclosed and the other provisions described in paragraph (i) of this section are met. Provided that both the State agency and local educational agency opt to allow the disclosure of eligibility information to Medicaid and/or SCHIP, the State agency or local educational agency, as appropriate, may disclose children's names, eligibility status (whether they are eligible for free or reduced price meals or free milk), and any other eligibility information obtained through the free and reduced price meal or free milk application or obtained through direct certification to persons directly connected with the administration of Medicaid or SCHIP. Persons directly connected to the administration of Medicaid and SCHIP are State employees and persons authorized under Federal and State Medicaid and SCHIP requirements to carry out initial processing of Medicaid or SCHIP applications or to make eligibility determinations for Medicaid or SCHIP.\n\n(1) The State agency must ensure that:\n\n(i) The child care institution and health insurance program officials have a written agreement that requires the health insurance program agency to use the eligibility information to seek to enroll children in Medicaid and SCHIP; and\n\n(ii) Parents/guardians are notified that their eligibility information may be disclosed to Medicaid or SCHIP and given an opportunity to decline to have their children's eligibility information disclosed, prior to any disclosure.\n\n(2)  Use of children's free and reduced price meal eligibility information by Medicaid/SCHIP.  Medicaid and SCHIP agencies and health insurance program operators receiving children's free and reduced price meal or free milk eligibility information may use the information to seek to enroll children in Medicaid or SCHIP. The Medicaid and SCHIP enrollment process may include targeting and identifying children from low-income households who are potentially eligible for Medicaid or SCHIP for the purpose of seeking to enroll them in Medicaid or SCHIP. No further disclosure of the information may be made. Medicaid and SCHIP agencies and health insurance program operators also may verify children's eligibility in a program under the Child Nutrition Act of 1966 or the Richard B. Russell National School Lunch Act.\n\n(h)  Notifying households of potential uses and disclosures of children's eligibility information.  Households must be informed that the information they provide on the free and reduced price meal or free milk application will be used to determine eligibility for free and reduced price meals or free milk and that eligibility information may be disclosed to other programs.\n\n(1) For disclosures to programs, other than Medicaid or SCHIP, that are permitted access to children's eligibility information, without parent/guardian consent, the State agency or local educational agency, as appropriate, must notify parents/guardians at the time of application that their children's free and reduced price meal or free milk eligibility information may be disclosed. The State agency or local educational agency, as appropriate, must add substantially the following statement to the statement required under paragraph (a)(8)(i) of this section, \u201cWe may share your eligibility information with education, health, and nutrition programs to help them evaluate, fund, or determine benefits for their programs; auditors for program reviews; and law enforcement officials to help them look into violations of program rules.\u201d For children determined eligible through direct certification, the notice of potential disclosure may be included in the document informing parents/guardians of their children's eligibility for free meals or free milk through direct certification.\n\n(2) For disclosure to Medicaid or SCHIP, the State agency or local educational agency, as appropriate, must notify parents/guardians that their children's free and reduced price meal or free milk eligibility information will be disclosed to Medicaid and/or SCHIP unless the parent/guardian elects not to have their information disclosed. Additionally, the State agency or local educational agency, as appropriate, must give parents/guardians an opportunity to elect not to have their information disclosed to Medicaid or SCHIP. Only the parent or guardian who is a member of the household or family for purposes of the free and reduced price meal or free milk application may decline the disclosure of eligibility information to Medicaid or SCHIP. The notification must inform parents/guardians that they are not required to consent to the disclosure, that the information, if disclosed, will be used to identify children eligible for and to seek to enroll children in a health insurance program, and that their decision will not affect their children's eligibility for free and reduced price meals or free milk. The notification may be included in the letter/notice to parents/guardians that accompanies the free and reduced price meal or free milk application, on the application itself or in a separate notice provided to parents/guardians. The notice must give parents/guardians adequate time to respond. The State agency or local educational agency, as appropriate, must add substantially the following statement to the statement required under paragraph (a)(8)(i) of this section, \u201cWe may share your information with Medicaid or the State Children's Health Insurance Program, unless you tell us not to. The information, if disclosed, will be used to identify eligible children and seek to enroll them in Medicaid or SCHIP.\u201d For children determined eligible through direct certification, the notice of potential disclosure and opportunity to decline the disclosure may be included in the document informing parents/guardians of their children's eligibility for free meal or free milk through direct certification.\n\n(i)  Other disclosures.  State agencies and local educational agencies that plan to use or disclose information about children eligible for free or reduced price meals or free milk in ways not specified in this section must obtain written consent from the child's parent or guardian prior to the use or disclosure. Only a parent or guardian who is a member of the child's household for purposes of the free and reduced price meal or free milk application may give consent to the disclosure of free and reduced price meal eligibility information.\n\n(1) The consent must identify the information that will be shared and how the information will be used.\n\n(2) The consent statement must be signed and dated by the child's parent or guardian who is a member of the household for purposes of the free and reduced price meal or free milk application.\n\n(3) There must be a statement informing parents and guardians that failing to sign the consent will not affect the child's eligibility for free or reduced price meals or free milk and that the individuals or programs receiving the information will not share the information with any other entity or program.\n\n(4) Parents/guardians must be permitted to limit the consent only to those programs with which they wish to share information.\n\n(j)  Agreements with programs/individuals receiving children's free and reduced price meal or free milk eligibility information.  (1) An agreement with programs or individuals receiving free and reduced price meal or free milk eligibility information is recommended for programs other than Medicaid or SCHIP. The agreement or MOU should include information similar to that required for disclosures to Medicaid and SCHIP specified in paragraph (j)(2) of this section.\n\n(2) The State agency or school food authorities, as appropriate, must have a written agreement with the State or local agency or agencies administering Medicaid or SCHIP prior to disclosing children's free and reduced price meal or free milk eligibility information. At a minimum, the agreement must:\n\n(i) Identify the health insurance program or health agency receiving children's eligibility information;\n\n(ii) Describe the information that will be disclosed;\n\n(iii) Require that the Medicaid or SCHIP agency use the information obtained and specify that the information must be used to seek to enroll children in Medicaid or SCHIP;\n\n(iv) Require that the Medicaid or SCHIP agency describe how they will use the information obtained;\n\n(v) Describe how the information will be protected from unauthorized uses and disclosures;\n\n(vi) Describe the penalties for unauthorized disclosure; and\n\n(vii) Be signed by both the Medicaid or SCHIP program or agency and the State agency or child care institution, as appropriate.\n\n(k)  Penalties for unauthorized disclosure or misuse of information.  In accordance with section 9(b)(6)(C) of the Richard B. Russell National School Lunch Act (42 U.S.C. 1758(b)(6)(C)), any individual who publishes, divulges, discloses or makes known in any manner, or to any extent not authorized by statute or this section, any information obtained under this section will be fined not more than $1,000 or imprisoned for up to 1 year, or both."], ["7:7:4.1.1.1.9.0.1.7", 7, "Agriculture", "II", "A", "245", "PART 245\u2014DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS", "", "", "", "\u00a7 245.6a Verification requirements.", "FNS", "", "", "[48 FR 12510, Mar. 25, 1983, as amended at 49 FR 26034, June 26, 1984; 52 FR 19275, May 22, 1987; 55 FR 19240, May 9, 1990; 56 FR 32950, July 17, 1991; 56 FR 33861, July 24, 1991; 64 FR 50744, Sept. 20, 1999; 64 FR 72474, Dec. 28, 1999; 66 FR 48328, Sept. 20, 2001; 68 FR 53489, Sept. 11, 2003; 72 FR 63795, Nov. 13, 2007; 73 FR 76859, Dec. 18, 2008; 76 FR 22802, Apr. 25, 2011; 78 FR 12230, Feb. 22, 2013; 78 FR 13453, Feb. 28, 2013]", "(a)  Definitions \u2014(1)  Eligible programs.  For the purposes of this section, the following programs qualify as programs for which a case number may be provided in lieu of income information and that may be used for direct verification purposes:\n\n(i)  SNAP,  as defined in 245.2;\n\n(ii) The Food Distribution Program on Indian Reservations (FDPIR) as defined in \u00a7 245.2; and\n\n(iii) A State program funded under the program of block grants to States for temporary assistance for needy families (TANF) as defined in \u00a7 245.2.\n\n(2)  Error prone application.  For the purposes of this section, \u201cerror prone application\u201d means an approved household application that indicates monthly income within $100 or annual income within $1,200 of the applicable income eligibility limit for free or for reduced meals.\n\n(3)  Non-response rate.  For the purposes of this section, \u201cnon-response rate\u201d means the percentage of approved household applications for which verification information was not obtained by the local educational agency after verification was attempted. The non-response rate is reported on the FNS-742 in accordance with paragraph (h) of this section.\n\n(4)  Official poverty line.  For the purposes of this section, \u201cofficial poverty line\u201d means that described in section 1902(l)(2)(A) of the Social Security Act (42 U.S.C. 1396a(l)(2)(A)).\n\n(5)  Sample size.  For the purposes of this section, \u201csample size\u201d means the number of approved applications that a local educational agency is required to verify based on the number of approved applications on file as of October 1 of the current school year.\n\n(6)  School year.  For the purposes of this section, a school year means a period of 12 calendar months beginning July 1 of any year and ending June 30 of the following year.\n\n(7)  Sources of information.  For the purposes of this section, sources of information for verification may include written evidence, collateral contacts, and systems of records as follows:\n\n(i) Written evidence shall be used as the primary source of information for verification. Written evidence includes written confirmation of a household's circumstances, such as wage stubs, award letters, and letters from employers. Whenever written evidence is insufficient to confirm income information on the application or current eligibility, the local educational agency may require collateral contacts.\n\n(ii) Collateral contacts are verbal confirmations of a household's circumstances by a person outside of the household. The collateral contact may be made in person or by phone. The verifying official may select a collateral contact if the household fails to designate one or designates one which is unacceptable to the verifying official. If the verifying official designates a collateral contact, the contact shall not be made without providing written or oral notice to the household. At the time of this notice, the household shall be informed that it may consent to the contact or provide acceptable documentation in another form. If the household refuses to choose one of these options, its eligibility shall be terminated in accordance with the normal procedures for failure to cooperate with verification efforts. Collateral contacts could include employers, social service agencies, and migrant agencies.\n\n(iii) Agency records to which the State agency or local educational agency may have access are not considered collateral contacts. Information concerning income, household size, or SNAP, FDPIR, or TANF eligibility, maintained by other government agencies to which the State agency, the local educational agency, or school can legally gain access, may be used to confirm a household's income, size, or receipt of benefits. Information may also be obtained from individuals or agencies serving foster, homeless, migrant, or runaway children, as defined in \u00a7 245.2. Agency records may be used for verification conducted after the household has been notified of its selection for verification or for the direct verification procedures in paragraph (g) of this section.\n\n(iv) Households which dispute the validity of income information acquired through collateral contacts or a system of records shall be given the opportunity to provide other documentation.\n\n(b)  Deadline and extensions for local educational agencies \u2014(1)  Deadline.  The local education agency must complete the verification efforts specified in paragraph (c) of this section not later than November 15 of each school year.\n\n(2)  Deadline extensions.  (i) The local educational agency may request an extension of the November 15 deadline, in writing, from the State agency. The State agency may approve an extension up to December 15 of the current school year due to natural disaster, civil disorder, strike or other circumstances that prevent the local educational agency from timely completion of verification activities.\n\n(ii) In the case of natural disaster, civil disorder or other local conditions, USDA may substitute alternatives for the verification deadline in paragraph (b)(1) of this section.\n\n(3)  Beginning verification activities.  The local educational agency may conduct verification activity once it begins the application approval process for the current school year and has approved applications on file. However, the final required sample size must be based on the number of approved applications on file as of October 1.\n\n(c)  Verification requirement \u2014(1)  General.  The local educational agency must verify eligibility of children in a sample of household applications approved for free and reduced price meal benefits for that school year.\n\n(i) A State may, with the written approval of FNS, assume responsibility for complying with the verification requirements of this section on behalf of its local educational agencies. When assuming such responsibility, States may qualify, if approved by FNS, to use one of the alternative sample sizes provided for in paragraph (c)(4) of this section if qualified under paragraph (d) of this section.\n\n(ii) An application must be approved if it contains the essential documentation specified in the definition of  Documentation  in \u00a7 245.2 and, if applicable, the household meets the income eligibility criteria for free or reduced price benefits. Verification efforts must not delay the approval of applications.\n\n(2)  Exceptions from verification.  Verification is not required in residential child care institutions; in schools in which FNS has approved special cash assistance claims based on economic statistics regarding per capita income; or in schools in which all children are served with no separate charge for food service and no special cash assistance is claimed. Local educational agencies in which all schools participate in the special assistance certification and reimbursement alternatives specified in \u00a7 245.9 shall meet the verification requirement only in those years in which applications are taken for all children in attendance. Verification of eligibility is not required of households if all children in the household are determined eligible based on documentation provided by the State or local agency responsible for the administration of the SNAP, FDPIR or TANF or if all children in the household are determined to be foster, homeless, migrant, or runaway, as defined in \u00a7 245.2.\n\n(3)  Standard sample size.  Unless eligible for an alternative sample size under paragraph (d) of this section, the sample size for each local educational agency shall equal the lesser of:\n\n(i) Three (3) percent of all applications approved by the local educational agency for the school year, as of October 1 of the school year, selected from error prone applications; or\n\n(ii) 3,000 error prone applications approved by the local educational agency for the school year, as of October 1 of the school year.\n\n(iii) Local educational agencies shall not exceed the standard sample size in paragraphs (c)(3)(i) or (c)(3)(ii) of this section, as applicable, and, unless eligible for one of the alternative sample sizes provided in paragraph (c)(4) of this section, the local educational agency shall not use a smaller sample size than those in paragraphs (c)(3)(i) or (c)(3)(ii) of this section, as applicable.\n\n(iv) If the number of error-prone applications exceeds the required sample size, the local educational agency shall select the required sample at random, i.e., each application has an equal chance of being selected, from the total number of error-prone applications.\n\n(4)  Alternative sample sizes.  If eligible under paragraph (d) of this section for an alternative sample size, the local educational agency may use one of the following alternative sample sizes:\n\n(i)  Alternative One.  The sample size shall equal the lesser of:\n\n(A) 3,000 of all applications selected at random from applications approved by the local educational agency as of October 1 of the school year; or\n\n(B) Three (3) percent of all applications selected at random from applications approved by the local educational agency as of October 1 of the school year.\n\n(ii)  Alternative Two.  The sample size shall equal the lesser of the sum of:\n\n(A) 1,000 of all applications approved by the local educational agency as of October 1 of the school year, selected from error prone applications or\n\n(B) One (1) percent of all applications approved by the local educational agency as of October 1 of the school year, selected from error prone applications PLUS\n\n(C) The lesser of:\n\n( 1 ) 500 applications approved by the local educational agency as of October 1 of the school year that provide a case number in lieu of income information showing participation in an eligible program as defined in paragraph (a)(1) of this section; or\n\n( 2 ) One-half (\n 1/2 ) of one (1) percent of applications approved by the local educational agency as of October 1 of the school year that provide a case number in lieu of income information showing participation in an eligible program as defined in paragraph (a)(1) of this section.\n\n(5)  Completing the sample size.  When there are an insufficient number of error prone applications or applications with case number to meet the sample sizes provided for in paragraphs (c)(3) or (c)(4) of this section, the local educational agency shall select, at random, additional approved applications to comply with the specified sample size requirements.\n\n(6)  Local conditions.  In the case of natural disaster, civil disorder, strike or other local conditions as determined by FNS, FNS may substitute alternatives for the sample size and sample selection criteria in paragraphs (c)(3) and (c)(4) of this section.\n\n(7)  Verification for cause.  In addition to the required verification sample, local educational agencies must verify any questionable application and should, on a case-by-case basis, verify any application for cause such as an application on which a household reports zero income or when the local educational agency is aware of additional income or persons in the household. Any application verified for cause is not considered part of the required sample size. If the local educational agency verifies a household's application for cause, all verification procedures in this section must be followed.\n\n(d)  Eligibility for alternative sample sizes \u2014(1)  State agency oversight.  At a minimum, the State agency shall establish a procedure for local educational agencies to designate use of an alternative sample size and may set a deadline for such notification. The State agency may also establish criteria for reviewing and approving the use of an alternative sample size, including deadlines for submissions.\n\n(2)  Lowered non-response rate.  Any local educational agency is eligible to use one of the alternative sample sizes in paragraph (c)(4) of this section for any school year when the non-response rate for the preceding school year is less than twenty percent.\n\n(3)  Improved non-response rate.  A local educational agency with more than 20,000 children approved by application as eligible for free or reduced price meals as of October 1 of the school year is eligible to use one of the alternative sample sizes in paragraph (c)(4) of this section for any school year when the non-response rate for the preceding school year is at least ten percent below the non-response rate for the second preceding school year.\n\n(4)  Continuing eligibility for alternative sample sizes.  The local educational agency must annually determine if it is eligible to use one of the alternative sample sizes provided in paragraph (c)(4) of this section. If qualified, the local educational agency shall contact the State agency in accordance with procedures established by the State agency under paragraph (d)(1) of this section.\n\n(e)  Activities prior to household notification \u2014(1)  Confirmation of a household's initial eligibility.  (i) Prior to conducting any other verification activity, an individual, other than the individual who made the initial eligibility determination, shall review for accuracy each approved application selected for verification to ensure that the initial determination was correct. If the initial determination was correct, the local educational agency shall verify the approved application. If the initial determination was incorrect, the local educational agency must:\n\n(A) If the eligibility status changes from reduced price to free, make the increased benefits immediately available and notify the household of the change in benefits; the local educational agency will then verify the application;\n\n(B) If the eligibility status changes from free to reduced price, first verify the application and then notify the household of the correct eligibility status after verification is completed and, if required, send the household a notice of adverse action in accordance with paragraph (j) of this section; or\n\n(C) If the eligibility status changes from free or reduced price to paid, send the household a notice of adverse action in accordance with paragraph (j) of this section and do not conduct verification on this application and select a similar application (for example, another error-prone application) to replace it.\n\n(ii) The requirements in paragraph (e)(1)(i) of this section are waived if the local educational agency is using a technology-based system that demonstrates a high level of accuracy in processing an initial eligibility determination based on the income eligibility guidelines for the National School Lunch Program. Any local educational agency that conducts a confirmation review of all applications at the time of certification meets this requirement. The State agency may request documentation to support the accuracy of the local educational agency's system. If the State agency determines that the technology-based system is inadequate, it may require that the local educational agency conduct a confirmation review of each application selected for verification.\n\n(2)  Replacing applications.  The local educational agency may, on a case-by-case basis, replace up to five percent of applications selected and confirmed for verification. Applications may be replaced when the local educational agency determines that the household would be unable to satisfactorily respond to the verification request. Any application removed shall be replaced with another approved application selected on the same basis (i.e., an error-prone application must be substituted for a withdrawn error-prone application).\n\n(f)  Verification procedures and assistance for households \u2014(1)  Notification of selection.  Other than households verified through the direct verification process in paragraph (g) of this section, households selected for verification must be notified in writing that their applications were selected for verification. The written statement must include a telephone number for assistance as required in paragraph (f)(5) of this section. Any communications with households concerning verification must be in an understandable and uniform format and, to the maximum extent practicable, in a language that parents and guardians can understand. These households must be advised of the type of information or documents the school accepts. Households selected for verification must be informed that:\n\n(i) They are required to submit the requested information to verify eligibility for free or reduced-price meals, by the date determined by the local educational agency.\n\n(ii) They may, instead, submit proof that the children receive SNAP, FDPIR, or TANF assistance, as explained in paragraph (f)(3) of this section.\n\n(iii) They may, instead, request that the local educational agency contact the appropriate officials to confirm that their children are foster, homeless, migrant, or runaway, as defined in \u00a7 245.2.\n\n(iv) Failure to cooperate with verification efforts will result in the termination of benefits.\n\n(2)  Documentation timeframe.  Households selected and notified of their selection for verification must provide documentation of income. The documentation must indicate the source, amount and frequency of all income and can be for any point in time between the month prior to application for school meal benefits and the time the household is requested to provide income documentation.\n\n(3)  SNAP FDPIR or TANF recipients.  On applications where households have furnished SNAP or TANF case numbers or FDPIR case numbers or other FDPIR identifiers, verification shall be accomplished by confirming with the SNAP, FDPIR, or TANF office that at least one child who is eligible because a case number was furnished, is a member of a household participating in one of the eligible programs in paragraph (a)(1) of this section. The household may also provide a copy of \u201cNotice of Eligibility\u201d for the SNAP, FDPIR or the TANF Program or equivalent official documentation issued by the SNAP, FDPIR or TANF office which confirms that at least one child who is eligible because a case number was provided is a member of a household receiving assistance under the SNAP, FDPIR or the TANF program. An identification card for these programs is not acceptable as verification unless it contains an expiration date. If it is not established that at least one child is a member of a household receiving assistance under the SNAP, FDPIR or the TANF program (in accordance with the timeframe in paragraph (f)(2) of this section), the procedures for adverse action specified in paragraph (j) of this section must be followed.\n\n(4)  Household cooperation.  If a household refuses to cooperate with efforts to verify, eligibility for free or reduced price benefits shall be terminated in accordance with paragraph (j) of this section. Households which refuse to complete the verification process and which are consequently determined ineligible for such benefits shall be counted toward meeting the local educational agency's required sample of verified applications.\n\n(5)  Telephone assistance.  The local educational agency shall provide a telephone number to households selected for verification to call free of charge to obtain information about the verification process. The telephone number must be prominently displayed on the letter to households selected for verification.\n\n(6)  Followup attempts.  The local educational agency shall make at least one attempt to contact any household that does not respond to a verification request. The attempt may be through a telephone call, e-mail, mail or in person and must be documented by the local educational agency. Non-response to the initial request for verification includes no response and incomplete or ambiguous responses that do not permit the local educational agency to resolve the children's eligibility for free or reduced price meal and milk benefits. The local educational agency may contract with another entity to conduct followup activity in accordance with \u00a7 210.21 of this chapter, the use and disclosure of information requirements of the Richard B. Russell National School Lunch Act and this section.\n\n(7)  Eligibility changes.  Based on the verification activities, the local educational agency shall make appropriate modifications to the eligibility determinations made initially. The local educational agency must notify the household of any change. Households must be notified of any reduction in benefits in accordance with paragraph (j) of this section. Households with reduced benefits or that are longer eligible for free or reduced price meals must be notified of their right to reapply at any time with documentation of income or participation in one of the eligible programs in paragraph (a)(1) of this section.\n\n(g)  Direct verification.  Local educational agencies may conduct direct verification activities with the eligible programs defined in paragraph (a)(1) of this section and with the public agency that administers the State plan for medical assistance under title XIX of the Social Security Act (42 U.S.C. 1396  et seq. ), (Medicaid), and under title XXI of the Social Security Act (42 U.S.C. 1397aa  et seq. ), the State Children's Health Insurance Program (SCHIP) as defined in \u00a7 245.2. Records from the public agency may be used to verify income and program participation. The public agency's records are subject to the timeframe in paragraph (g)(5) of this section. Direct verification must be conducted prior to contacting the household for documentation.\n\n(1)  Names submitted.  The local educational agency must only submit the names of school children certified for free or reduced price meal benefits or free milk to the agency administering an eligible program, the Medicaid program or the SCHIP program. Names and other identifiers of adult or non-school children must not be submitted for direct verification purposes.\n\n(2)  Eligible programs.  If information obtained through direct verification of an application for free or reduced price meal benefits indicates a child is participating in one of the eligible programs in paragraph (a)(1) of this section, no additional verification is required.\n\n(3)  States with Medicaid Income Limits of 133%.  In States in which the income eligibility limit applied in the Medicaid program or in SCHIP is not more than 133% of the official poverty line or in States that otherwise identify households that have income that is not more than 133% of the official poverty line, records from these agencies may be used to verify eligibility. If information obtained through direct verification with these programs verifies the household's eligibility status, no additional verification is required.\n\n(4)  States with Medicaid Income Limits between 133%-185%.  In States in which the income eligibility limit applied in the Medicaid program or in SCHIP exceeds 133% of the official poverty line, direct verification information must include either the percentage of the official poverty line upon which the applicant's Medicaid participation is based or Medicaid income and Medicaid household size in order to determine that the applicant is either at or below 133% of the Federal poverty line, or is between 133% and 185% of the Federal poverty line. Verification for children approved for free meals is complete if Medicaid data indicates that the percentage is at or below 133% of the Federal poverty line. Verification for children approved for reduced price meals is complete if Medicaid data indicates that the percentage is at or below 185% of the Federal poverty line. If information obtained through direct verification with these programs verifies eligibility status, no additional verification is required.\n\n(5)  Documentation timeframe.  For the purposes of direct verification, documentation must be the most recent available but such documentation must indicate eligibility for participation or income within the 180-day period ending on the date of application. In addition, local educational agencies may use documentation, which must be within the 180-day period ending on the date of application, for any one month or for all months in the period from the month prior to application through the month direct verification is conducted. The information provided only needs to indicate eligibility for participation in the program at that point in time, not that the child was certified for that program's benefits within the 180-day period.\n\n(6)  Incomplete information.  If it is the information provided by the public agency does not verify eligibility, the local educational agency must conduct verification in accordance with paragraph (f) of this section. In addition, households must be able to dispute the validity of income information acquired through direct verification and shall be given the opportunity to provide other documentation.\n\n(h)  Verification reporting and recordkeeping requirements.  By February 1, each local educational agency must report information related to its annual statutorily required verification activity, which excludes verification conducted in accordance with paragraph (c)(7) of this section, to the State agency in accordance with guidelines provided by FNS. These required data elements will be specified by FNS. Contingent upon new funding to support this purpose, FNS will also require each local educational agency to collect and report the number of students who were terminated as a result of verification but who were reinstated as of February 15th. The first report containing this data element would be required in the school year beginning July 1, 2005 and each school year thereafter. State agencies may develop paper or electronic reporting forms to collect this data from local educational agencies, as long as all required data elements are collected from each local educational agency. Local educational agencies shall retain copies of the information reported under this section and all supporting documents for a minimum of 3 years. All verified applications must be readily retrievable on an individual school basis and include all documents submitted by the household for the purpose of confirming eligibility, reproductions of those documents, or annotations made by the determining official which indicate which documents were submitted by the household and the date of submission. All relevant correspondence between the households selected for verification and the school or local educational agency must be retained. Local educational agencies are encouraged to collect and report any or all verification data elements before the required dates.\n\n(i)  Nondiscrimination.  The verification efforts shall be applied without regard to race, sex, color, national origin, age, or disability.\n\n(j)  Adverse action.  If verification activities fail to confirm eligibility for free or reduced price benefits or should the household fail to cooperate with verification efforts, the school or local educational agencyshall reduce or terminate benefits, as applicable, as follows: Ten days advance notification shall be provided to households that are to receive a reduction or termination of benefits, prior to the actual reduction or termination. The first day of the 10 day advance notice period shall be the day the notice is sent. The notice shall advise the household of:\n\n(1) The change;\n\n(2) The reasons for the change;\n\n(3) Notification of the right to appeal and when the appeal must be filed to ensure continued benefits while awaiting a hearing and decision;\n\n(4) Instructions on how to appeal; and\n\n(5) The right to reapply at any time during the school year. The reasons for ineligibility shall be properly documented and retained on file at the local educational agency."]], "truncated": false, "filtered_table_rows_count": 102, "expanded_columns": [], "expandable_columns": [], "columns": ["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"], "primary_keys": ["section_id"], "units": {}, "query": {"sql": "select 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 from cfr_sections where \"part_number\" = :p0 order by section_id limit 101", "params": {"p0": "245"}}, "facet_results": {"title_number": {"name": "title_number", "type": "column", "hideable": false, "toggle_url": "/openregs/cfr_sections.json?part_number=245", "results": [{"value": 49, "label": 49, "count": 37, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&title_number=49", "selected": false}, {"value": 24, "label": 24, "count": 30, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&title_number=24", "selected": false}, {"value": 7, "label": 7, "count": 16, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&title_number=7", "selected": false}, {"value": 33, "label": 33, "count": 14, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&title_number=33", "selected": false}, {"value": 17, "label": 17, "count": 5, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&title_number=17", "selected": false}], "truncated": false}, "agency": {"name": "agency", "type": "column", "hideable": false, "toggle_url": "/openregs/cfr_sections.json?part_number=245", "results": [{"value": "FRA", "label": "FRA", "count": 37, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&agency=FRA", "selected": false}, {"value": "HUD", "label": "HUD", "count": 30, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&agency=HUD", "selected": false}, {"value": "FNS", "label": "FNS", "count": 16, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&agency=FNS", "selected": false}, {"value": "USACE", "label": "USACE", "count": 14, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&agency=USACE", "selected": false}, {"value": "SEC", "label": "SEC", "count": 5, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&agency=SEC", "selected": false}], "truncated": false}, "part_number": {"name": "part_number", "type": "column", "hideable": false, "toggle_url": "/openregs/cfr_sections.json?part_number=245", "results": [{"value": "245", "label": "245", "count": 102, "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json", "selected": true}], "truncated": false}}, "suggested_facets": [{"name": "title_name", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&_facet=title_name"}, {"name": "subchapter", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&_facet=subchapter"}, {"name": "part_name", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&_facet=part_name"}, {"name": "subpart", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&_facet=subpart"}, {"name": "subpart_name", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&_facet=subpart_name"}, {"name": "amendment_citations", "toggle_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&_facet=amendment_citations"}], "next": "7~3A7~3A4~2E1~2E1~2E1~2E9~2E0~2E1~2E7,7~3A7~3A4~2E1~2E1~2E1~2E9~2E0~2E1~2E7", "next_url": "https://www.pawtectors.org/openregs/cfr_sections.json?part_number=245&_next=7~3A7~3A4~2E1~2E1~2E1~2E9~2E0~2E1~2E7%2C7~3A7~3A4~2E1~2E1~2E1~2E9~2E0~2E1~2E7&_sort=section_id", "private": false, "allow_execute_sql": true, "query_ms": 1960.6242990121245, "source": "Federal Register API & Regulations.gov API", "source_url": "https://www.federalregister.gov/developers/api/v1", "license": "Public Domain (U.S. Government data)", "license_url": "https://www.regulations.gov/faq"}