cfr_sections
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54 rows where part_number = 1016 sorted by section_id
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| 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 |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 10:10:5.0.3.5.11.0.22.1 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.1 Purpose. | DOE | The regulations in this part establish requirements for the safeguarding of Secret and Confidential Restricted Data received or developed under an access permit. This part does not apply to Top Secret information since no such information may be forwarded to an access permittee within the scope of this regulation. | |||||||
| 10:10:5.0.3.5.11.0.22.2 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.2 Scope. | DOE | The regulations in this part apply to all persons who may require access to Retricted Data used, processed, stored, reproduced, transmitted, or handled in connection with an access permit. | |||||||
| 10:10:5.0.3.5.11.0.22.3 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.3 Definitions. | DOE | [48 FR 36432, Aug. 10, 1983, as amended at 71 FR 68735, Nov. 28, 2006; 82 FR 41505, Sept. 1, 2017] | (a) Access authorization. An administrative determination by DOE that an individual who is either a DOE employee, applicant for employment, consultant, assignee, other Federal department or agency employee (or other persons who may be designated by the Secretary of Energy), or a DOE contractor or subcontractor employee, or an access permittee is eligible for access to Restricted Data. Access authorizations granted by DOE are designated as “Q,” “Q(X),” “L,” or “L(X).” (1) “Q” access authorizations are based upon single scope background investigations as set forth in applicable DOE and national-level directives. They permit an individual who has “need to know” access to Top Secret, Secret and Confidential Restricted Data, Formerly Restricted Data, National Security Information, or special nuclear material in Category I or II quantities as required in the performance of duties, subject to additional determination that permitting this access will not endanger the common defense or national security of the United States. There may be additional requirements for access to specific types of RD information. (2) “Q(X)” access authorizations are based upon the same level of investigation required for a Q access authorization. When “Q” access authorizations are granted to access permittees they are identified as “Q(X)” access authorizations and, as need-to-know applies, authorize access only to the type of Secret Restricted Data as specified in the permit and consistent with appendix A, 10 CFR part 725, “Categories of Restricted Data Available.” (3) “L” access authorizations are based upon a Tier III (formerly National Agency Check with Local Agency Checks and Credit Checks (NACLC)/Access National Agency Check with Inquiries (ANACI)) background investigation as set forth in applicable national-level directives. They permit an individual who has “need to know” access to Confidential Restricted Data, Secret and Confidential Formerly Restricted Data, or Secret and Confidential National Security Information, required in th… | ||||||
| 10:10:5.0.3.5.11.0.22.4 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.4 Communications. | DOE | [82 FR 41505, Sept. 1, 2017, as amended at 88 FR 41294, June 26, 2023] | Communications concerning rulemaking, i.e., petition to change this part, should be addressed to the Director, Office of Environment, Health, Safety and Security, EHSS-1/Forrestal Building, Office of Environment, Health, Safety and Security, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585. All other communications concerning the regulations in this part should be addressed to the cognizant DOE or National Nuclear Security Administration (NNSA) office. | ||||||
| 10:10:5.0.3.5.11.0.22.5 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.5 Submission of procedures by access permit holder. | DOE | [82 FR 41506, Sept. 1, 2017] | No access permit holder shall have access to Restricted Data until he has submitted to the DOE a written statement of his procedures for the safeguarding of Restricted Data and for the security education of his employees, and DOE shall have determined and informed the permittee that his procedures for the safeguarding of Restricted Data are in compliance with the regulations in this part and that his procedures for the security education of his employees, who will have access to Restricted Data, are informed about and understand the regulations in this part. These procedures must ensure that employees with access to Restricted Data are informed about and understand who is authorized or required to classify and declassify RD and FRD information and classified matter as well as how documents containing RD or FRD are marked (see 10 CFR part 1045) and safeguarded. | ||||||
| 10:10:5.0.3.5.11.0.22.6 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.6 Specific waivers. | DOE | DOE may, upon application of any interested party, grant such waivers from the requirements of this part as it determines are authorized by law and will not constitute an undue risk to the common defense and security. | |||||||
| 10:10:5.0.3.5.11.0.22.7 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.7 Interpretations. | DOE | Except as specifically authorized by the Secretary of Energy in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of DOE other than a written interpretation by the General Counsel will be recognized to be binding upon DOE. | |||||||
| 10:10:5.0.3.5.11.0.23.10 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.10 Granting, denial, or suspension of security facility approval. | DOE | [82 FR 41506, Sept. 1, 2017] | Notification of the DOE's granting, denial, or suspension of security facility approval will be furnished the permittee in writing, or orally with written confirmation. This information may also be furnished to representatives of the DOE, DOE contractors, or other Federal agencies having a need to transmit Restricted Data to the permittee. | ||||||
| 10:10:5.0.3.5.11.0.23.11 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.11 Cancellation of requests for security facility approval. | DOE | [82 FR 41506, Sept. 1, 2017] | When a request for security facility approval is to be withdrawn or cancelled, the cognizant DOE Office will be notified by the requester immediately by telephone and confirmed in writing so that processing of this approval may be terminated. | ||||||
| 10:10:5.0.3.5.11.0.23.12 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.12 Termination of security facility approval. | DOE | [82 FR 41506, Sept. 1, 2017] | (a) Security facility approval will be terminated when: (1) There is no longer a need to use, process, store, reproduce, transmit, or handle Restricted Data at the facility; or (2) The DOE makes a determination that continued security facility approval is not in the interest of common defense and security. (b) The permittee will be notified in writing of a determination to terminate facility approval, and the procedures outlined in § 1016.27 will apply. | ||||||
| 10:10:5.0.3.5.11.0.23.13 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.13 Protection of Restricted Data in storage. | DOE | [82 FR 41506, Sept. 1, 2017] | (a) Persons who possess Restricted Data pursuant to an Access Permit shall store the Restricted Data classified matter when not in use in a locked storage container or DOE-approved vault to which only persons with appropriate access authorization and a need to know the information contained have access. Storage containers used for storing classified matter must conform to U.S. General Services Administration (GSA) standards and specifications. (b) Each permittee shall change the combination on locks of his safekeeping equipment whenever such equipment is placed in use, whenever an individual knowing the combination no longer requires access to the repository as a result of change in duties or position in the permittee's organization, or termination of employment with the permittee or whenever the combination has been subjected to compromise, and in any event at least once a year. Permittees shall classify records of combinations no lower than the highest classification of the classified matter authorized for storage in the safekeeping equipment concerned. | ||||||
| 10:10:5.0.3.5.11.0.23.14 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.14 Protection of Restricted Data while in use. | DOE | [82 FR 41506, Sept. 1, 2017] | While in use, classified matter containing Restricted Data shall be under the direct control of a person with the appropriate access authorization and need to know. Unauthorized access to the Restricted Data shall be precluded. | ||||||
| 10:10:5.0.3.5.11.0.23.15 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.15 Establishment of security areas. | DOE | [82 FR 41506, Sept. 1, 2017] | (a) When, because of their nature or size, it is impracticable to safeguard classified matter containing Restricted Data in accordance with the provisions of §§ 1016.13 and 1016.14, a security area to protect such classified matter shall be established. (b) The following controls shall apply to security areas: (1) Security areas shall be separated from adjacent areas by a physical barrier designed to prevent entrance into such areas, and access to the Restricted Data within the areas, by unauthorized individuals. (2) During working hours, admittance shall be controlled by an appropriately cleared individual posted at each unlocked entrance. (3) During nonworking hours, admittance shall be controlled by protective personnel on patrol, with protective personnel posted at unlocked entrances, or by such intrusion detection system as DOE approves. (4) Each individual authorized to enter a security area shall be issued a distinctive badge or pass when the number of employees assigned to the area exceeds thirty. | ||||||
| 10:10:5.0.3.5.11.0.23.16 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.16 Special handling of classified material. | DOE | [48 FR 36432, Aug. 10, 1983. Redesignated at 82 FR 41506, Sept. 1, 2017 | When the Restricted Data contained in material is not ascertainable by observation or examination at the place where the material is located and when the material is not readily removable because of size, weight, radioactivity, or similar factors, DOE may authorize the permittee to provide such lesser protection than is otherwise required by §§ 1016.21 to 1016.23 inclusive, as DOE determines to be commensurate with the difficulty of removing the material. | ||||||
| 10:10:5.0.3.5.11.0.23.17 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.17 Protective personnel. | DOE | [82 FR 41507, Sept. 1, 2017] | Whenever armed protective personnel are required in accordance with § 1016.15, such protective personnel shall: (a) Possess a “Q” or “L” access authorization or “Q(X)” or “L(X)” access authorization if the Restricted Data being protected is classified Confidential, or a “Q” access authorization or “Q(X)” access authorization if the Restricted Data being protected is classified Secret. (b) Be armed with sidearms of 9mm or greater. | ||||||
| 10:10:5.0.3.5.11.0.23.8 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.8 Request for security facility approval. | DOE | (a) An access permittee who has a need to use, process, store, reproduce, transmit, or handle Restricted Data at any location in connection with its permit shall promptly request a DOE security facility approval. (b) The request shall include the following information: The name and address of the permittee; the extent and scope of the classified activity and the highest classification of Restricted Data to be received; a written statement in the form of a security plan which outlines the permittee's proposed security procedures and controls for the protection of Restricted Data, including a floor plan of the areas(s) in which the classified matter is to be used, processed, stored, reproduced, transmitted, and handled. (c) The DOE will promptly inform the permittee of the acceptability of the request for further processing and will notify the permittee of its decision in writing. | |||||||
| 10:10:5.0.3.5.11.0.23.9 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.9 Processing security facility approval. | DOE | [82 FR 41506, Sept. 1, 2017] | Following receipt of an acceptable request for security facility approval, the DOE will perform an initial security survey of the permittee's facility to determine that granting a security facility approval would be consistent with the national security. If DOE makes such a determination, security facility approval will be granted. If not, security facility approval will be withheld pending compliance with the security survey recommendations or until a waiver is granted pursuant to § 1016.6. | ||||||
| 10:10:5.0.3.5.11.0.24.18 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.18 Access to Restricted Data. | DOE | [82 FR 41507, Sept. 1,2017] | (a) Except as DOE may authorize, no person subject to the regulations in this part shall permit any individual to have access to Restricted Data in his possession unless the individual has an appropriate access authorization granted by DOE, or has been certified by DOD or NASA through DOE; and (1) The individual is authorized by an Access Permit to receive Restricted Data in the categories involved and the permittee determines that such access is required in the course of his duties; or (2) The individual needs such access in connection with such duties as a DOE employee or DOE contractor employee, or as certified by DOD or NASA. (b) Inquiries concerning the access authorization status of individuals, the scope of Access Permits, or the nature of contracts should be addressed to the cognizant DOE or NNSA office. | ||||||
| 10:10:5.0.3.5.11.0.24.19 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.19 Review, classification and marking of classified information. | DOE | [82 FR 41507, Sept. 1, 2017, as amended at 88 FR 41294, June 26, 2023] | (a) Classification. Restricted Data generated or possessed by an Access Permit holder must be appropriately classified and marked in accordance with 10 CFR part 1045. CG-DAR-2, “Guide to the Declassified Areas of Nuclear Energy Research U 08/98,” will be furnished each permittee. In the event a permittee originates classified information which falls within the definition of Restricted Data or information for which the permittee is not positive that the information is outside of that definition and CG-DAR-2 does not provide positive classification guidance for such information, the permittee shall designate the information as Confidential, Restricted Data and request classification guidance from the DOE through the Classification Officer at the cognizant DOE or NNSA office. If the DOE Classification Officer does not have authority to provide the guidance, he will refer the request to the Director, Office of Classification, EHSS-60/Germantown Building, Office of Environment, Health, Safety and Security, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-1290. (b) Challenges. If a person receives a document or other classified matter which, in his opinion, is not properly classified, or omits the appropriate classification markings, he is encouraged to challenge the classification and there shall be no retribution for submitting a challenge. Challenges shall be submitted in accordance with 10 CFR part 1045. (c) Classification markings. Restricted Data generated or possessed by an individual approved for access must be appropriately identified and marked in accordance with 10 CFR part 1045, Nuclear Classification and Declassification. Questions and requests for additional direction or guidance regarding the marking of classified matter may be submitted to the Director, Office of Classification, EHSS-60/Germantown Building, Office of Environment, Health, Safety and Security, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-1290. | ||||||
| 10:10:5.0.3.5.11.0.24.20 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.20 External transmission of Restricted Data. | DOE | [82 FR 41507, Sept. 1, 2017] | (a) Restrictions. (1) Restricted Data shall be transmitted only to persons who possess appropriate access authorization, need to know, and are otherwise eligible for access under the requirements of § 1016.18. (2) In addition, such classified matter containing Restricted Data shall be transmitted only to persons who possess approved facilities for their physical security consistent with this part. Any person subject to the regulations in this part who transmits such Restricted Data containing Restricted Data shall be deemed to have fulfilled his obligations under this paragraph (a)(2) by securing a written certification from the prospective recipient that such recipient possesses facilities for its physical security consistent with this part. (3) Restricted Data shall not be exported from the United States without prior authorization from DOE. (b) Preparation of documents. Documents containing Restricted Data shall be prepared for transmission outside an individual installation in accordance with the following: (1) They shall be enclosed in two sealed, opaque envelopes or wrappers. (2) The inner envelope or wrapper shall be addressed in the ordinary manner and sealed with tape, the appropriate classification shall be marked on both sides of the envelope, and any additional marking required by 10 CFR part 1045 shall be applied. (3) The outer envelope or wrapper shall be addressed in the ordinary manner. No classification, additional marking, or other notation shall be affixed which indicates that the document enclosed therein contains classified information or Restricted Data. (4) A receipt which identifies the document, the date of transfer, the recipient, and the person transferring the document shall accompany the document and shall be signed by the recipient and returned to the sender whenever the custody of a document containing Secret Restricted Data is transferred. (c) Preparation of other classified matter. Classified matter, other than documents, containing Restricted Data shall be prepared … | ||||||
| 10:10:5.0.3.5.11.0.24.21 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.21 Accountability for Secret Restricted Data. | DOE | [82 FR 41507, Sept. 1, 2017] | Each permittee possessing classified matter (including classified matter in electronic format) containing Secret Restricted Data shall establish accountability procedures and shall maintain logs to document access to and record comprehensive disposition information for all such classified matter that has been in his custody at any time. | ||||||
| 10:10:5.0.3.5.11.0.24.22 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.22 Authority to reproduce Restricted Data. | DOE | [48 FR 36432, Aug. 10, 1983. Redesiganted at 82 FR 41508, Sept. 1, 2017] | Secret Restricted Data will not be reproduced without the written permission of the originator, his successor, or high authority. Confidential Restricted Data may be reproduced to the minimum extent necessary consistent with efficient operation without the necessity for permission. | ||||||
| 10:10:5.0.3.5.11.0.24.23 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.23 Changes in classification. | DOE | [82 FR 41508, Sept. 1, 2017] | Classified matter containing Restricted Data shall not be downgraded or declassified except as authorized by DOE and in accordance with 10 CFR part 1045. | ||||||
| 10:10:5.0.3.5.11.0.24.24 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.24 Destruction of classified matter containing Restricted Data. | DOE | [82 FR 41508, Sept. 1, 2017] | Documents containing Restricted Data may be destroyed by burning, pulping, or another method that assures complete destruction of the information which they contain. Restricted Data contained in classified matter, other than documents, may be destroyed only by a method that assures complete obliteration, removal, or destruction of the Restricted Data. | ||||||
| 10:10:5.0.3.5.11.0.24.25 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.25 Storage, use, processing, transmission and destruction of classified information on computers, computer networks, electronic devices/media and mobile devices. | DOE | [82 FR 41508, Sept. 1, 2017] | Storage, use, processing, and transmission of Restricted Data on computers, computer networks, electronic devices/media and mobile devices must be approved by DOE. DOE-approved methods must be used when destroying classified information that is in electronic format. | ||||||
| 10:10:5.0.3.5.11.0.24.26 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.26 Suspension or revocation of access authorization. | DOE | [48 FR 36432, Aug. 10, 1983. Redesignated at 82 FR 41508, Sept. 1, 2017] | In any case where the access authorization of an individual subject to the regulations in this part is suspended or revoked in accordance with the procedures set forth in 10 CFR part 710, such individual shall, upon due notice from DOE of such suspension or revocation and demand by DOE, deliver to DOE any and all Restricted Data in his possession for safekeeping and such further disposition as DOE determines to be just and proper. | ||||||
| 10:10:5.0.3.5.11.0.24.27 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.27 Termination, suspension, or revocation of security facility approval. | DOE | [82 FR 41508, Sept. 1, 2017] | (a) In accordance with § 1016.12, if the need to use, process, store, reproduce, transmit, or handle classified matter no longer exists, the security facility approval will be terminated. The permittee may deliver all Restricted Data to the DOE or to a person authorized to receive them; or the permittee may destroy all such Restricted Data. In either case, the facility must submit a certification of non-possession of Restricted Data to the DOE. (b) In any instance where security facility approval has been suspended or revoked based on a determination of the DOE that further possession of classified matter by the permittee would endanger the common defense and national security, the permittee shall, upon notice from the DOE, immediately deliver all Restricted Data to the DOE along with a certificate of non-possession of Restricted Data. | ||||||
| 10:10:5.0.3.5.11.0.24.28 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.28 Termination of employment or change of duties. | DOE | [48 FR 36432, Aug. 10, 1983. Redesignated at 82 FR 41508, Sept. 1, 2017] | Each permittee shall furnish promptly to DOE written notification of the termination of employment of each individual who possesses an access authorization under his Permit or whose duties are changed so that access to Restricted Data is no longer needed. Upon such notification, DOE may: (a) Terminate the individual's access authorization, or (b) Transfer the individual's access authorization to the new employer of the individual to allow continued access to Restricted Data where authorized, pursuant to DOE regulations. | ||||||
| 10:10:5.0.3.5.11.0.24.29 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.29 Continued applicability of the regulations in this part. | DOE | [48 FR 36432, Aug. 10, 1983. Redesignated at 82 FR 41508, Sept. 1, 2017] | The expiration, suspension, revocation, or other termination of a security clearance or access authorization or security facility approval shall not relieve any person from compliance with the regulations in this part. | ||||||
| 10:10:5.0.3.5.11.0.24.30 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.30 Reports. | DOE | [48 FR 36432, Aug. 10, 1983. Redesignated at 82 FR 41508, Sept. 1, 2017] | Each permittee shall immediately report to the DOE office administering the permit any alleged or suspected violation of the Atomic Energy Act of 1954, as amended, Espionage Act, or other Federal statutes related to Restricted Data. Additionally, the permittee shall report any infractions, losses, compromises, or possible compromise of Restricted Data. | ||||||
| 10:10:5.0.3.5.11.0.24.31 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.31 Inspections. | DOE | [82 FR 41508, Sept. 1, 2017] | The DOE shall make such inspections and surveys of the premises, activities, records, and procedures of any person subject to the regulations in this part as DOE deems necessary to effectuate the purposes of the Act, Executive Order 13526, and DOE orders and procedures. | ||||||
| 10:10:5.0.3.5.11.0.24.32 | 10 | Energy | X | 1016 | PART 1016—SAFEGUARDING OF RESTRICTED DATA BY ACCESS PERMITTEES | § 1016.32 Violations. | DOE | [48 FR 36432, Aug. 10, 1983. Redesignated at 82 FR 41508, Sept. 1, 2017] | An injunction or other court order may be obtained prohibiting any violation of any provision of the Act or any regulation or order issued thereunder. Any person who willfully violates, attempts to violate, or conspires to violate any provision of the Act or any regulation or order issued thereunder, including the provisions of this part, may be guilty of a crime and upon conviction may be punished by fine or imprisonment, or both, as provided by law. | ||||||
| 49:49:8.1.1.1.13.1.1.1 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | A | Subpart A—General Provisions | § 1016.101 Purpose of these rules. | STB | The Equal Access to Justice Act (5 U.S.C. 504) (called the “Act” in this part), provides for the award of attorney fees and other expenses to eligible individuals and entities who are parties to certain administrative proceedings (called “adversary adjudications”) before the Surface Transportation Board. An eligible party may receive an award when it prevails over the Board or another agency of the United States participating in the Board proceeding, unless the Board's position in the proceeding, or that of the other agency, was substantially justified or special circumstances make an award unjust. The rules in this part describe the parties eligible for awards and the proceedings that are covered. They also explain how to apply for awards, and the procedures and standards that the Board will use to make them. | ||||
| 49:49:8.1.1.1.13.1.1.2 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | A | Subpart A—General Provisions | § 1016.102 When the Act applies. | STB | [54 FR 26379, June 23, 1989] | The Act applies to any adversary adjudication pending before the Board after October 1, 1981. This includes proceedings begun before October 1, 1981, if final Board action has not been taken before that date, regardless of when they were initiated or when final Board action occurs. These rules incorporate the changes made in Pub. L. No. 99-80, 99 Stat. 183, which applies generally to cases instituted after October 1, 1984. If awards are sought for cases pending on October 1, 1981 or filed between that date and September 30, 1984, the prior statutory provisions (to the extent they differ from the existing ones, and our implementing rules) apply. | |||
| 49:49:8.1.1.1.13.1.1.3 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | A | Subpart A—General Provisions | § 1016.103 Proceedings covered. | STB | [46 FR 61660, Dec. 18, 1981, as amended at 81 FR 8851, Feb. 23, 2016] | (a) The Act applies to adversary adjudications conducted by the Board under 5 U.S.C. 554 in which the position of this or any other agency of the United States, or any component of an agency, is presented by an attorney or other representative (hereinafter “agency counsel”) who enters an appearance and participates in the proceeding. Proceedings for the purpose of establishing or fixing a rate are not covered by the Act. Proceedings to grant or renew licenses are also excluded, but proceedings to modify, suspend, or revoke licenses are covered if they are otherwise “adversary adjudications.” Generally, the types of Board proceedings covered by the Act include, but are not limited to, investigation proceedings instituted under 49 U.S.C. 11701 and 49 U.S.C. 13905 and disciplinary proceedings conducted pursuant to 49 CFR 1103.5. (b) The Board may also designate a proceeding not listed in paragraph (a) of this section as an adversary adjudication for purposes of the Act by so stating in an order initiating the proceeding, designating the matter for hearing or at any other time during the proceeding. The Board's failure to designate a proceeding as an adversary adjudication shall not preclude the filing of an application by a party who believes the proceeding is covered by the Act; whether the proceeding is covered will then be an issue for resolution in proceedings on the application. (c) If a proceeding includes both matters covered by the Act and matters specifically excluded from coverage, any award made will include only fees and expenses related to covered issues. | |||
| 49:49:8.1.1.1.13.1.1.4 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | A | Subpart A—General Provisions | § 1016.104 Decisionmaking authority. | STB | [46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26379, June 23, 1989] | Unless otherwise ordered by the Board in a particular proceeding, each application for an award under this part shall be assigned for decision to the official or decisionmaking body that entered the decision in the adversary adjudication. That official or decisionmaking body is referred to in this part as the “adjudicative officer.” | |||
| 49:49:8.1.1.1.13.1.1.5 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | A | Subpart A—General Provisions | § 1016.105 Eligibility of applicants. | STB | [46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26379, June 23, 1989; 81 FR 8851, Feb. 23, 2016] | (a) To be eligible for an award of attorney fees and other expenses under the Act, the applicant must be a party to the adversary adjudication for which it seeks an award, it must have stood in an adversary relationship to the position taken by agency counsel, and it must have prevailed on one or more of the issues raised by agency counsel. The term “party” is defined in 5 U.S.C. 504(b)(1)(B). The applicant must show that it meets all conditions of eligibility set out in this subpart and in Subpart B. (b) The types of eligible applicants are as follows: (1) An individual whose net worth did not exceed $2 million at the time the adversary adjudication was initiated; (2) Any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization whose net worth does not exceed $7 million and which had no more than 500 employees at the time the adversary adjudication was initiated; (3) Any organization described in section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of such Code, or a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative association. (c) For the purpose of eligibility, the net worth and number of employees of an applicant shall be determined as of the date the proceeding was initiated. (d) The employees of an applicant include all persons who regularly perform services for remuneration for the applicant, under the applicant's direction and control. Part-time employees shall be included on a proportional basis. Independent contractors under lease to motor carriers are not employees of the carriers under these rules. Also, agents for motor common carriers of household goods are not employees of their respective principal carriers. (e) The net worth and number of employees of the applicant and all of its affiliates shall be aggregated to determine… | |||
| 49:49:8.1.1.1.13.1.1.6 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | A | Subpart A—General Provisions | § 1016.106 Standards for awards. | STB | [46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26379, June 23, 1989] | (a) A prevailing applicant may receive an award for fees and expenses incurred in connection with a proceeding, or in a significant and discrete substantive portion of the proceeding, unless the position of the agency over which the applicant has prevailed was substantially justified. Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record made in the adversary adjudication for which fees and other expenses are sought. The burden of proof that an award should not be made to an eligible prevailing applicant is on the agency counsel, which may avoid an award by showing that its position was reasonable in law and fact. (b) An award will be reduced or denied if the applicant has unduly or unreasonably protracted the proceeding or if special circumstances make the award sought unjust. | |||
| 49:49:8.1.1.1.13.1.1.7 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | A | Subpart A—General Provisions | § 1016.107 Allowable fees and expenses. | STB | [46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26379, June 23, 1989; 81 FR 8851, Feb. 23, 2016] | (a) Awards will be based on rates customarily charged by persons engaged in the business of acting as attorneys, agents and expert witnesses, even if the services were made available without charge or at a reduced rate to the applicant. (b) No award for the fee of an attorney or agent under these rules may exceed the amount specified by 5 U.S.C. 504(b)(1)(A), unless a higher fee is justified. 5 U.S.C. 504(b)(1)(A). However, an award may also include the reasonable expenses of the attorney, agent, or witness as a separate item, if the attorney, agent, or witness ordinarily charges clients separately for such expenses. (c) In determining the reasonableness of the fee sought for an attorney, agent or expert witness, the adjudicative officer shall consider the following: (1) If the attorney, agent or witness is in private practice, his or her customary fee for similar services, or, if an employee of the applicant, the fully allocated cost of the services; (2) The prevailing rate for similar services in the community in which the attorney, agent, or witness ordinarily performs services; (3) The time actually spent in the representation of the applicant; (4) The time reasonably spent in light of the difficulty or complexity of the issues in the proceeding; and (5) Such other factors as may bear on the value of the services provided. (d) The reasonable cost of any study, analysis, engineering report, test, project or similar matter prepared on behalf of a party may be awarded, to the extent that the charge for the service does not exceed the prevailing rate for similar services, and the study or other matter was necessary for preparation of the applicant's case. | |||
| 49:49:8.1.1.1.13.1.1.8 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | A | Subpart A—General Provisions | § 1016.109 Awards against other agencies. | STB | If an applicant is entitled to an award because it prevails over another agency of the United States that participates in a proceeding before this agency and takes a position that is not substantially justified, the award or an appropriate portion of the award shall be made against that agency. | ||||
| 49:49:8.1.1.1.13.2.1.1 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | B | Subpart B—Information Required From Applicants | § 1016.201 Contents of application. | STB | [46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989] | (a) An application for an award of fees and expenses under the Act shall identify the applicant and the proceeding for which an award is sought. The application shall show that the applicant has prevailed and identify the position of the Board or other agencies in the proceeding that the applicant alleges was not substantially justified. Unless the applicant is an individual, the application shall also state the number of employees of the applicant and describe briefly the type and purpose of its organization or business. (b) The application shall also include a statement that the applicant's net worth does not exceed $2 million (if an individual) or $7 million (for all other applicants, including their affiliates). However, an applicant may omit this statement if: (1) It attaches a copy of a ruling by the Internal Revenue Service that it qualifies as an organization described in section 501(c)(3) of the Internal Revenue Code (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of such Code; or (2) It states that it is a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)). (c) The application shall state the amount of fees and expenses for which an award is sought. (d) The application may also include any other matters that the applicant wishes the Board to consider in determining whether and in what amount an award should be made. (e) The application shall be signed by the applicant or an authorized officer or attorney of the applicant. It shall also contain or be accompanied by a written verification under oath or under penalty of perjury that the information provided in the application is true and correct. | |||
| 49:49:8.1.1.1.13.2.1.2 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | B | Subpart B—Information Required From Applicants | § 1016.202 Net worth exhibit. | STB | [46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989; 81 FR 8851, Feb. 23, 2016] | (a) Each applicant must provide with its application a detailed exhibit showing the net worth of the applicant and any affiliates (as defined in § 1016.105(e) of this part) when the proceeding was initiated. The exhibit may be in any form convenient to the applicant that provides full disclosure of the applicant's and its affiliates' assets and liabilities and is sufficient to determine whether the applicant qualifies under the standards in this part. The adjudicative officer may require an applicant to file additional information to determine its eligibility for an award. (b) Ordinarily, the net worth exhibit will be included in the public record of the proceeding. However, an applicant that objects to public disclosure of information in any portion of the exhibit and believes that there are legal grounds for withholding it from disclosure may file a motion to withhold the information from public disclosure. The burden is on the moving party to justify the confidentiality of the information. | |||
| 49:49:8.1.1.1.13.2.1.3 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | B | Subpart B—Information Required From Applicants | § 1016.203 Documentation of fees and expenses. | STB | The application shall be accompanied by full documentation of the fees and expenses, including the cost of any study, analysis, engineering report, test, project or similar matter, for which an award is sought. A separate itemized statement shall be submitted for each professional firm or individual whose services are covered by the application, showing the hours spent in connection with the proceeding by each individual, a description of the specific services performed, the rate at which each fee has been computed, any expenses for which reimbursement is sought, the total amount claimed, and the total amount paid or payable by the applicant or by another person or entity for the services provided. The adjudicative officer may require the applicant to provide vouchers, receipts, or other substantiation for any expenses claimed. | ||||
| 49:49:8.1.1.1.13.3.1.1 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | C | Subpart C—Procedures for Considering Applications | § 1016.301 When an application may be filed. | STB | [46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989] | (a) An application may be filed whenever the applicant has prevailed in the proceeding or in a significant and discrete substantive portion of the proceeding, but in no case later than 30 days after an administratively final disposition of the proceeding. (b) If review or reconsideration is sought or taken of a decision as to which an applicant believes it has prevailed, proceedings for the award of fees shall be stayed pending final disposition of the underlying controversy. (c) For purposes of this rule, see the Board's rules governing appellate procedures at §§ 1115.2 and 1115.3 to determine when a decision becomes administratively final. | |||
| 49:49:8.1.1.1.13.3.1.10 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | C | Subpart C—Procedures for Considering Applications | § 1016.310 Judicial review. | STB | Judicial review of final Board decisions on awards may be sought as provided in 5 U.S.C. 504(c)(2). | ||||
| 49:49:8.1.1.1.13.3.1.11 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | C | Subpart C—Procedures for Considering Applications | § 1016.311 General provisions. | STB | [74 FR 52905, Oct. 15, 2009] | An applicant seeking payment of an award shall submit to the appropriate official of the paying agency a copy of the Board's final decision granting the award, accompanied by a statement that the applicant will not seek review of the decision in the United States courts. Where the award is granted against the Surface Transportation Board the applicant shall make its submission to the Chief, Section of Financial Services, Surface Transportation Board, Washington, DC 20423-0001. The Board will pay the amount awarded to the applicant within 60 days of the applicant's submission unless the judicial review of the award or of the underlying decision of the adversary adjudication has been sought by the applicant or any other party to the proceeding. | |||
| 49:49:8.1.1.1.13.3.1.2 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | C | Subpart C—Procedures for Considering Applications | § 1016.302 Filing and service of documents. | STB | Any application for an award or other pleading or document related to an application shall be filed and served on all parties to the proceeding in the same manner as other pleadings in the proceeding, except as provided in § 1016.202(b) for confidential financial information. | ||||
| 49:49:8.1.1.1.13.3.1.3 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | C | Subpart C—Procedures for Considering Applications | § 1016.303 Answer to application. | STB | [46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989] | (a) Within 30 days after service of an application, counsel representing the agency against which an award is sought may file an answer to the application. Unless agency counsel requests an extension of time for filing or files a statement of intent to negotiate under paragraph (b) of this section, failure to file an answer within the 30-day period may be treated as a consent to the award requested. (b) If agency counsel and the applicant believe that the issues in the fee application can be settled, they may jointly file a statement of their intent to negotiate a settlement. The filing of this statement shall extend the time for filing an answer for an additional 30 days, and further extensions may be granted as justified. (c) The answer shall explain in detail any objections to the award requested and identify the facts relied on in support of agency counsel's position. If the answer is based on any alleged facts not already in the record of the proceeding, agency counsel shall include with the answer either supporting affidavits or a request for further proceedings under § 1016.307. | |||
| 49:49:8.1.1.1.13.3.1.4 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | C | Subpart C—Procedures for Considering Applications | § 1016.304 Reply. | STB | Within 15 days after service of an answer, the applicant may file a reply. If the reply is based on any alleged facts not already in the record of the proceeding, the applicant shall include with the reply either supporting affidavits or a request for further proceedings under § 1016.307. | ||||
| 49:49:8.1.1.1.13.3.1.5 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | C | Subpart C—Procedures for Considering Applications | § 1016.305 Comments by other parties. | STB | [46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989] | Any party to a proceeding other than the applicant and agency counsel may file comments on an application within 30 days after it is served or on an answer within 15 days after it is served. A commenting party may not broaden the issues. | |||
| 49:49:8.1.1.1.13.3.1.6 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | C | Subpart C—Procedures for Considering Applications | § 1016.306 Settlement. | STB | The applicant and agency counsel may agree on a proposed settlement of the award before final action on the application, either in connection with a settlement of the underlying proceeding, or after the underlying proceeding has been concluded. If a prevailing party and agency counsel agree on a proposed settlement of an award before an application has been filed, the application shall be filed with the proposed settlement. | ||||
| 49:49:8.1.1.1.13.3.1.7 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | C | Subpart C—Procedures for Considering Applications | § 1016.307 Further proceedings. | STB | [46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989] | (a) Ordinarily, the determination of an award will be made on the basis of the written record. However, on request of either the applicant or agency counsel or on his or her own initiative, the adjudicative officer may order further proceedings when necessary. (b) A request that the adjudicative officer order further proceedings under this section shall specifically identify the information sought or the disputed issues and shall explain why the additional proceedings are necessary to resolve the issues. | |||
| 49:49:8.1.1.1.13.3.1.8 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | C | Subpart C—Procedures for Considering Applications | § 1016.308 Decision. | STB | [46 FR 61660, Dec. 18, 1981, as amended at 54 FR 26380, June 23, 1989] | The adjudicative officer shall issue a decision on the application within 50 days after completion of proceedings on the application. The decision shall include written findings and conclusions on the applicant's eligibility and status as a prevailing party, and an explanation of the reasons for any difference between the amount requested and the amount awarded. The decision shall also include, if at issue, findings on whether the Board's or other agency's position was substantially justified, whether the applicant unduly protracted the proceedings, or whether special circumstances make an award unjust. If the applicant has sought an award against more than one agency, the decision shall allocate responsibility for payment of any award made among the agencies, and shall explain the reasons for the allocation made. | |||
| 49:49:8.1.1.1.13.3.1.9 | 49 | Transportation | X | A | 1016 | PART 1016—SPECIAL PROCEDURES GOVERNING THE RECOVERY OF EXPENSES BY PARTIES TO BOARD ADJUDICATORY PROCEEDINGS | C | Subpart C—Procedures for Considering Applications | § 1016.309 Agency review. | STB | [54 FR 26380, June 23, 1989] | In the event the adjudicative officer is not the entire Board, the applicant or agency counsel may seek review of the initial decision on the fee application, or the Board may review the decision on its own initiative, in accordance with § 1115.2. If no appeal is taken, the initial decision becomes the action of the Board 20 days after it is issued. If the adjudicative officer is the entire Board, § 1115.3 applies. |
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CREATE TABLE cfr_sections (
section_id TEXT PRIMARY KEY,
title_number INTEGER,
title_name TEXT,
chapter TEXT,
subchapter TEXT,
part_number TEXT,
part_name TEXT,
subpart TEXT,
subpart_name TEXT,
section_number TEXT,
section_heading TEXT,
agency TEXT,
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source_citation TEXT,
amendment_citations TEXT,
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CREATE INDEX idx_cfr_title ON cfr_sections(title_number);
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CREATE INDEX idx_cfr_agency ON cfr_sections(agency);