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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 |
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| 17:17:5.0.1.1.5.0.9.1 | 17 | Commodity and Securities Exchanges | II | 245 | PART 245—REGULATION BLACKOUT TRADING RESTRICTION | § 245.100 Definitions. | SEC | [68 FR 4355, Jan. 28, 2003, as amended at 71 FR 53263, Sept. 8, 2006] | As used in Regulation BTR (§§ 245.100 through 245.104), unless the context otherwise requires: (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: (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; (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 (§ 229.404 of this chapter) or, in the case of a foreign private issuer, Item 7.B of Form 20-F (§ 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; (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; (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 (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 exe… | ||||||
| 17:17:5.0.1.1.5.0.9.2 | 17 | Commodity and Securities Exchanges | II | 245 | PART 245—REGULATION BLACKOUT TRADING RESTRICTION | § 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. (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 “acquired in connection with service or employment as a director or executive officer” (as defined in § 245.100(a)) to the extent that the director or executive officer has a pecuniary interest (as defined in § 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 “acquired in connection with service or employment as a director or executive officer.” 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). (c) The following transactions are exempt from section 306(a)(1) of the Sarbanes-Oxley Act of 2002: (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… | ||||||
| 17:17:5.0.1.1.5.0.9.3 | 17 | Commodity and Securities Exchanges | II | 245 | PART 245—REGULATION BLACKOUT TRADING RESTRICTION | § 245.102 Exceptions to definition of blackout period. | SEC | The term “blackout period,” as defined in § 245.100(b), does not include: (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: (1) Incorporated into the individual account plan or included in the documents or instruments under which the plan operates; and (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 (b) Any trading suspension described in § 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—REGULATION BLACKOUT TRADING RESTRICTION | § 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. (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. (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 pe… | |||||||
| 17:17:5.0.1.1.5.0.9.5 | 17 | Commodity and Securities Exchanges | II | 245 | PART 245—REGULATION BLACKOUT TRADING RESTRICTION | § 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 § 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. (b) For purposes of this section: (1) The notice must include: (i) The reason or reasons for the blackout period; (ii) A description of the plan transactions to be suspended during, or otherwise affected by, the blackout period; (iii) A description of the class of equity securities subject to the blackout period; (iv) The length of the blackout period by reference to: (A) The actual or expected beginning date and ending date of the blackout period; or (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. (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 (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. (2) (i) Notice to an affected director or executive officer will be considered timely if the notice described in paragraph (b)(1)… | |||||||
| 24:24:2.1.1.2.21.1.211.1 | 24 | Housing and Urban Development | II | B | 245 | PART 245—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | A | Subpart A—General Provisions | § 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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | A | Subpart A—General Provisions | § 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— (1) Project subject to HUD insured or held mortgage under the National Housing Act. The project has a mortgage that— (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—1715z-20); and (ii) Is assisted under: (A) Section 236 of the National Housing Act (12 U.S.C. 1715z-1); (B) The Section 221(d)(3) BMIR Program; (C) The Rent Supplement Program; (D) The Section 8 Loan Management Set-Aside Program following conversion to such assistance from the Rent Supplement Program assistance; (2) Formerly HUD-owned project. The project— (i) Before being acquired by the Secretary, was assisted under: (A) Section 236 of the National Housing Act (12 U.S.C. 1715z-1); (B) The Section 221(d)(3) BMIR Program; (C) The Rent Supplement Program; or (D) The Section 8 LMSA Program following conversion to such assistance from assistance under the Rent Supplement Program; and (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; (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; (4) The project receives p… | |||
| 24:24:2.1.1.2.21.1.211.3 | 24 | Housing and Urban Development | II | B | 245 | PART 245—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | A | Subpart A—General Provisions | § 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. (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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | B | Subpart B—Tenant Organizations | § 245.100 Right of tenants to organize. | HUD | The tenants of a multifamily housing project covered under § 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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | B | Subpart B—Tenant Organizations | § 245.105 Recognition of tenant organizations. | HUD | Owners of multifamily housing projects covered under § 245.10, and their agents, must: (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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | B | Subpart B—Tenant Organizations | § 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 § 245.10 for the purpose described in § 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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | B | Subpart B—Tenant Organizations | § 245.115 Protected activities. | HUD | (a) Owners of multifamily housing projects covered under § 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: (1) Distributing leaflets in lobby areas; (2) Placing leaflets at or under tenants' doors; (3) Distributing leaflets in common areas; (4) Initiating contact with tenants; (5) Conducting door-to-door surveys of tenants to ascertain interest in establishing a tenant organization and to offer information about tenant organizations; (6) Posting information on bulletin boards; (7) Assisting tenants to participate in tenant organization activities; (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 (9) Formulating responses to owner's requests for: (i) Rent increases; (ii) Partial payment of claims; (iii) The conversion from project-based paid utilities to tenant-paid utilities; (iv) A reduction in tenant utility allowances; (v) Converting residential units to non-residential use, cooperative housing, or condominiums; (vi) Major capital additions; and (vii) Prepayment of loans. (b) In addition to the activities listed in paragraph (a) of this section, owners of multifamily housing projects covered under § 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. (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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | B | Subpart B—Tenant Organizations | § 245.120 Meeting space. | HUD | (a) Owners of multifamily housing projects covered under § 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: (1) Tenants or a tenant organization and used for activities related to the operation of the tenant organization; or (2) Tenants seeking to establish a tenant organization or collectively address issues related to their living environment. (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. (c) Fees. An owner of a multifamily housing project covered under § 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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | B | Subpart B—Tenant Organizations | § 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. (b) Owners of multifamily housing projects covered under § 245.10, and their agents, must allow tenant organizers to assist tenants in establishing and operating tenant organizations. (c) Non-tenant tenant organizers. (1) If a multifamily housing project covered under § 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 (“OTAG”) 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. (2) If a multifamily housing project covered under § 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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | B | Subpart B—Tenant Organizations | § 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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | B | Subpart B—Tenant Organizations | § 245.135 Enforcement. | HUD | [72 FR 73495, Dec. 27, 2007] | (a) Owners of housing identified in § 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: (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. (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. (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. (b) These sanctions may also apply to affiliates (as defined in 2 CFR part 2424) of these persons or entities. (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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | C | Subpart C—Efforts To Obtain Assistance | § 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. (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. (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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | C | Subpart C—Efforts To Obtain Assistance | § 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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | D | Subpart D—Procedures for Requesting Approval of an Increase in Maximum Permissible Rents | § 245.305 Applicability of subpart. | HUD | (a) The requirements of this subpart apply to any request by a mortgagor, as provided by § 245.10, for HUD approval of an increase in maximum permissible rents. (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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | D | Subpart D—Procedures for Requesting Approval of an Increase in Maximum Permissible Rents | § 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 § 245.15. The notice must contain the following information in the following format or an equivalent format: Notice to Tenants of Intention To Submit a Request to HUD for Approval of an Increase in Maximum Permissible Rents Date of Notice 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: 1. 2. 3. The rent increases for which we have requested approval are: Bedrooms Present rent 1 Proposed increase 1 Proposed rent 1 Basic Market Basic Market Basic Market 5 $ $ $ $ $ 0 1 2 3 4 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. 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. 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 comme… | ||||
| 24:24:2.1.1.2.21.4.211.3 | 24 | Housing and Urban Development | II | B | 245 | PART 245—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | D | Subpart D—Procedures for Requesting Approval of an Increase in Maximum Permissible Rents | § 245.315 Materials to be submitted to HUD. | HUD | When the notice referred to in § 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: (a) Documents to be submitted under profit and loss approach: (1) A copy of the notice to tenants; (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; (3) A narrative statement of the reasons for the requested increase in maximum permissible rents; and (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. (5) A status report on the project's implementation of its current Energy Conservation Plan. (b) Documents to be submitted under the forward-budget approach: (1) A cover letter summarizing the reasons a rent increase is needed; (2) A copy of the notice to tenants; (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; (4) A brief statement explaining the basis for the expense lines on the rent increase worksheet; (5) A partially completed Rent Schedule, Form HUD-92458; (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 (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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | D | Subpart D—Procedures for Requesting Approval of an Increase in Maximum Permissible Rents | § 245.320 Request for increase. | HUD | Upon expiration of the period for tenant comments required in the notice format in § 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 § 245.315 and any revisions thereto, the request for an increase in the maximum permissible rents, together with the following: (a) Copies of all written comments submitted by the tenants to the mortgagor; (b) The mortgagor's evaluation of the tenants' comments with respect to the request; (c) A certification by the mortgagor that: (1) It has complied with all of the requirements of this subpart; (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; (3) All comments received from tenants were considered by the mortgagor in making its evaluation; and (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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | D | Subpart D—Procedures for Requesting Approval of an Increase in Maximum Permissible Rents | § 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 § 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 § 245.315(b) (forward-budget approach). (b) After HUD has considered the request for an increase in rents, has found that it meets the requirements of § 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 § 245.15. | ||||
| 24:24:2.1.1.2.21.4.211.6 | 24 | Housing and Urban Development | II | B | 245 | PART 245—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | D | Subpart D—Procedures for Requesting Approval of an Increase in Maximum Permissible Rents | § 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 §§ 245.305 through 245.320 shall apply to the mortgagor (project owner), except that— (1) The notice format prescribed in § 245.310 must be modified to reflect the procedural changes made by this section; (2) The material (including tenant comments) required to be submitted to HUD under §§ 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 § 245.315(a)(2), if approved by the local HUD office; and (3) The State or local agency must certify that the mortgagor has complied with the requirements of §§ 245.310, 245.315, 245.320, and 245.325. (b) After the State or local agency has considered the request for an increase in maximum permissible rents that meets the requirements of § 245.320 (including consideration of anticipated cost increases, as provided in § 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… | ||||
| 24:24:2.1.1.2.21.5.211.1 | 24 | Housing and Urban Development | II | B | 245 | PART 245—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | E | Subpart E—Procedures for Requesting Approval of a Covered Action | § 245.405 Applicability of subpart. | HUD | The requirements of this subpart apply to any request by a mortgagor, as provided by § 245.10, for HUD approval of one or more of the following covered actions: (a) Conversion of a project from project-paid utilities to tenant-paid utilities, or a reduction in tenant utility allowances. (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. (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. (d) Making major capital additions to the project. For the purposes of this subpart, the term “major capital additions” 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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | E | Subpart E—Procedures for Requesting Approval of a Covered Action | § 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. (b) The mortgagor must notify the tenants of HUD's decision in the manner provided in § 245.15. If HUD has approved the proposed covered action, the notice must state: (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); (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 (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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | E | Subpart E—Procedures for Requesting Approval of a Covered Action | § 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 §§ 245.405 through 245.425 apply to the mortgagor (project owner), except that— (1) The notice to tenants required under § 245.410 must be modified to reflect the procedural changes made by this section; (2) The materials (including tenant comments) required to be submitted to HUD under §§ 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 (3) The State or local agency must certify that the mortgagor has complied with the requirements of §§ 245.410, 245.415, 245.416, 245.420, and 245.425. (b) After the State or local agency has considered the request for approval of a conversion or reduction that meets the requirements of § 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… | ||||
| 24:24:2.1.1.2.21.5.211.2 | 24 | Housing and Urban Development | II | B | 245 | PART 245—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | E | Subpart E—Procedures for Requesting Approval of a Covered Action | § 245.410 Notice to tenants. | HUD | At least 30 days before submitting a request to HUD for approval of an action described in § 245.405, the mortgagor must serve notice of the proposed covered action on the project tenants, as provided in § 245.15. The notice shall state that— (a) The mortgagor intends to submit a request to HUD for approval of the covered action or actions specified in the notice; (b) The tenants have the right to participate as provided in § 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; (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; (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; (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 (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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | E | Subpart E—Procedures for Requesting Approval of a Covered Action | § 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 §§ 245.416 through 245.419, to the local HUD office when the notice required under § 245.410 is served on the tenants. (b) Subsequent submission. If additional notice under § 245.420(c) is required, the mortgagor must submit to HUD any changes to the materials required under §§ 245.416 through 245.419 when the notice required under § 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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | E | Subpart E—Procedures for Requesting Approval of a Covered Action | § 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: (a) A copy of the notice to tenants; (b) In the case of a proposed conversion from project-paid utilities to tenant-paid utilities— (1) A statement indicating: (i) The type of utility or utilities involved; (ii) The number of units in the project by type and size; (iii) The average utility consumption data by unit type and size for comparable projects, and utility rate information, as obtained from the utility supplier; (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; (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); (vi) An estimate of the cost of conversion, as obtained from the utility supplier or from bids from contractors; (vii) The source and terms of financing for the conversion (to the extent known); and (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 (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 (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 propos… | ||||
| 24:24:2.1.1.2.21.5.211.5 | 24 | Housing and Urban Development | II | B | 245 | PART 245—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | E | Subpart E—Procedures for Requesting Approval of a Covered Action | § 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 §§ 245.415 and 245.419: (a) In the case of a proposed conversion of residential rental units to nonresidential use: (1) A statement describing the proposed conversion; (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); (3) A statement assessing the compatibility of the proposed nonresidential use with the residential character of the project; (4) Written approval of the mortgagee if required; (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 (6) A copy of the notice to tenants. (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: (1) An estimate of the demand for cooperative housing, including an estimate of the number of present tenants interested in purchasing cooperative housing; (2) Estimates of downpayments and monthly carrying charges that will be required; and (3) Copies of proposed organizational documents, including By-Laws, Articles of Incorporation, Subscription Agreement, Occupancy Agreement, and Sale Document. (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: (1) An… | ||||
| 24:24:2.1.1.2.21.5.211.6 | 24 | Housing and Urban Development | II | B | 245 | PART 245—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | E | Subpart E—Procedures for Requesting Approval of a Covered Action | § 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: (a) A statement describing the portion of the property that is proposed to be released and the transaction requiring the release; (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; (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; (d) A statement describing the proposed use of any proceeds to be received by the mortgagor as a result of the release; and (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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | E | Subpart E—Procedures for Requesting Approval of a Covered Action | § 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: (a) The general plans and sketches of the proposed capital additions; (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; (c) A statement describing how the proposed capital additions will be financed and the effect, if any, of that financing on the tenants; (d) A statement assessing the compatibility of the proposed capital additions with the residential character of the project; and (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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | E | Subpart E—Procedures for Requesting Approval of a Covered Action | § 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 § 245.415, for a period of 30 days from the date on which the notice required under § 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. (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. (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 § 245.415, the mortgagor must notify the tenants of the change, in the manner provided in § 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—TENANT PARTICIPATION IN MULTIFAMILY HOUSING PROJECTS | E | Subpart E—Procedures for Requesting Approval of a Covered Action | § 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: (a) The mortgagor's written request for HUD approval of the covered action; (b) Copies of all written tenant comments; (c) The mortgagor's evaluation of the tenant comments on the proposed conversion or reduction; (d) A certification by the mortgagor that it has complied with all of the requirements of § 245.410, § 245.415, §§ 245.416 through 245.419, as applicable, § 245.420, and this section; and (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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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: (1) Marking is accomplished promptly and is maintained, (2) The plan for removal and disposal is reasonable and acceptable to the District Engineer, (3) Removal operations do not unreasonably interfere with navigation, (4) All conditions of the Corps of Engineers permit are met, and (5) Removal operations are pursued diligently. (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 “abandoned” 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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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 “taking” of private property for public purposes. Abandonment is established by either: (1) Affirmative action on the part of the owner declaring intention to abandon, or (2) Failure to commence immediate removal of the obstruction and prosecute such removal diligently. (b) Owner declaration. The Corps of Engineers will not “accept” 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. (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. (d) Cargo. If vessel and cargo are separately owned, or ownership of cargo is uncertain, abandonment of vessel and cargo will be established separately. (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. (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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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: (1) A determination has been made, in consultation with the Coast Guard, that the obstruction is a hazard to navigation, (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), (3) The District Engineer has made a reasonable attempt to identify the owner, operator, or lessee, and (4) Abandonment of the wreck or obstruction has been established. (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: (1) The obstruction impedes or stops navigation, or (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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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. (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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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. (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. (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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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. Hazard 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. Obstruction is anything that restricts, endangers or interferes with navigation. Responsible 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. Vessel 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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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. (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. (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. (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. (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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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. (b) Factors to be considered, as a minimum, include: (1) Location of the obstruction in relation to the navigable channel and other navigational traffic patterns. (2) Navigational difficulty in the vicinity of the obstruction. (3) Clearance or depth of water over the obstruction, fluctuation of water level, and other hydraulic characteristics in the vicinity. (4) Type and density of commercial and recreational vessel traffic, or other marine activity, in the vicinity of the obstruction. (5) Physical characteristics of the obstruction, including cargo, if any. (6) Possible movement of the obstruction. (7) Location of the obstruction in relation to existing aids to navigation. (8) Prevailing and historical weather conditions. (9) Length of time the obstruction has been in existence. (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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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. (b) Options. The following options, or some combination of these options, may be considered: (1) No action. (2) Charting. (3) Broadcast notice to mariners and publication of navigational safety information. (4) Marking. (5) Redefinition of navigational area (e.g., channel, fairway, anchorage, etc.). (6) Removal. | |||||||
| 33:33:3.0.1.1.13.0.1.8 | 33 | Navigation and Navigable Waters | II | 245 | PART 245—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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. (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. (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 “To Whom It May Concern,” 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—REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS | § 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—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | A | Subpart A—General | § 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. (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. (c) The dispatcher certification requirements prescribed in this part apply to any person who meets the definition of dispatcher contained in § 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—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | A | Subpart A—General | § 245.3 Application and responsibility for compliance. | FRA | (a) This part applies to all railroads except: (1) Railroads that do not have any dispatch (as defined in § 245.7) tasks performed either by dispatchers employed by the railroad or employed by a contractor or subcontractor; (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 § 245.7); (3) Tourist, scenic, historic, or excursion operations that are not part of the general railroad system of transportation as defined in § 245.7; or (4) Rapid transit operations in an urban area that are not connected to the general railroad system of transportation. (b) Although the duties imposed by this part are generally stated in terms of the duty of a railroad, each person, as defined in § 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—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | A | Subpart A—General | § 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. (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. (c) Except as provided in § 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. (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—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | A | Subpart A—General | § 245.7 Definitions. | FRA | [89 FR 44806, May 21, 2024, as amended at 90 FR 28128, July 1, 2025] | As used in this part: Administrator means the Administrator of the FRA or the Administrator's delegate. Alcohol means ethyl alcohol (ethanol) and includes use or possession of any beverage, mixture, or preparation containing ethyl alcohol. Blocking device means a method of control that either prohibits the operation of a switch or signal or restricts access to a section of track. Controlled 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). Dispatch means: (1) To perform a function that would be classified as a duty of a “dispatching service employee,” 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: (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 (ii) Controlling the occupancy of a track by a roadway worker or stationary on-track equipment, or both; or (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. (2) The term dispatch does not include the actions of personnel in the field: (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 (ii) Operating a function of a signal system designed for use by those personnel; or (iii) Sorting and grouping rail cars inside a railroad yard to asse… | ||||
| 49:49:4.1.1.1.39.1.137.5 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | A | Subpart A—General | § 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. (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. (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—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | A | Subpart A—General | § 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: (1) A grossly negligent violation, or a pattern of repeated violations, has created an imminent hazard of death or injury to persons; or (2) A death or injury has occurred. See 49 CFR part 209, appendix A. (b) Each day a violation continues constitutes a separate offense. (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. (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. (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. (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—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.101 Certification program required. | FRA | (a) Each railroad subject to this part shall have a written dispatcher certification program. (b) Each certification program shall include all of the following: (1) A procedure for evaluating prior safety conduct as a motor vehicle operator that complies with the criteria established in § 245.111. (2) A procedure for evaluating prior safety conduct as an employee or certified dispatcher with other railroads that complies with the criteria established in § 245.113. (3) A procedure for evaluating potential substance abuse disorders and compliance with railroad alcohol and drug rules that complies with the criteria established in § 245.115. (4) A procedure for evaluating visual and hearing acuity that complies with the criteria established in §§ 245.117 and 245.118. (5) A procedure for training that complies with the criteria established in § 245.119. (6) A procedure for knowledge testing that complies with the criteria established in § 245.121. (7) A procedure for monitoring operational performance that complies with the criteria established in § 245.123. | |||||
| 49:49:4.1.1.1.39.2.137.10 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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. (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. (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: (1) As required in 29 CFR 1910.95(h) (Occupational Safety and Health Administration); (2) As required in § 227.111 of this chapter; or (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, “Specifications for Audiometers.” (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: (1) In accordance with the guidance prescribed in appendix B to this part, a person is entitled to: (i) One retest without making any showing; and (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. (2) The railroad shall provide its medical examiner with a copy of this part, including all appendices. (3) If, after consultation with a railro… | |||||
| 49:49:4.1.1.1.39.2.137.11 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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. (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. (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: (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. (2) An on-the-job training component which shall include the following: (i) A syllabus describing content, required tasks, and related steps the person learning the job shall be able to perform within a specified timeframe; (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 (iii) A statement of the standards by which proficiency is measured through a combination of task/step accuracy, completeness, an… | |||||
| 49:49:4.1.1.1.39.2.137.12 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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: (1) The person is a certified dispatcher; and (2) The person either: (i) Possesses the necessary territorial qualifications for the applicable territory pursuant to § 245.119; or (ii) Is assisted by a Dispatcher Pilot who is qualified on the territory. (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. (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. (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—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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. (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: (1) Designed to examine a person's knowledge of the railroad's operating rules and practices for the safe movement of trains; (2) Objective in nature; (3) In written or electronic form; (4) Covering the following subjects: (i) Safety and operating rules; (ii) Timetable instructions; (iii) Compliance with all applicable Federal regulations; (iv) Physical characteristics of the territory or territories on which a person is currently working or training to qualify as a dispatcher; and (v) Dispatching systems and technology. (5) Sufficient to accurately measure the person's knowledge of the covered subjects; and (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. (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. (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. (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 … | |||||
| 49:49:4.1.1.1.39.2.137.14 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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: (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; (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 (3) What actions the railroad will take if it finds deficiencies in a dispatcher's performance during an unannounced compliance test. (b) An unannounced compliance test shall: (1) Test certified dispatchers for compliance with one or more operational tests in accordance with the provisions of § 217.9 of this chapter; (2) Be performed by a railroad officer who meets the requirements of § 217.9(b)(1) of this chapter; and (3) Be given to each certified dispatcher at least once each calendar year, except as provided for in paragraph (c) of this section. (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: (1) Give the certified dispatcher an unannounced compliance test within 30 days of their return to dispatcher service; and (2) Retain a written record that includes the following information: (i) The date the dispatcher stopped performing service that required certification pursuant to this part; (ii) The date the dispatcher returned to service that required certification pursuant to this part; and (iii) The date and the result of the unannounced compliance test that was performed following the d… | |||||
| 49:49:4.1.1.1.39.2.137.15 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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. (b) A railroad relying on certification determinations made by another railroad shall still be responsible for determining that: (1) The prior certification is still valid in accordance with the provisions of §§ 245.201 and 245.307; (2) The person has received training on the physical characteristics of the new territory in accordance with § 245.119; and (3) The person has demonstrated the necessary knowledge concerning the railroad's operating rules, territory, dispatch systems and technology in accordance with § 245.121. | |||||
| 49:49:4.1.1.1.39.2.137.2 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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 § 245.107, according to the following schedule: (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. (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. (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 § 245.107, prior to commencing dispatching operations. (c) Method for submitting certification programs to FRA. Railroads must submit their written certification programs and their requests for approval (described in § 245.107(a)) by emailing the documents to FRADISPATCHCERTPROG@dot.gov. (d) Notification requirements. Each railroad that submits a program to FRA must: (1) Simultaneously with its submission, provide a copy of the program and the request for approval (as described in § 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 (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 nam… | |||||
| 49:49:4.1.1.1.39.2.137.3 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 245.105 Implementation schedule for certification programs. | FRA | (a) Each railroad that submits its dispatcher certification program to FRA in accordance with § 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. (b) Each railroad that submits its dispatcher certification program to FRA in accordance with § 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. (c) By March 17, 2025, each railroad shall: (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 (2) Issue a certificate that complies with § 245.207 to each person that it designates. (d) Between March 17, 2025 and the date FRA approves the railroad's certification program, each railroad shall: (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 (2) Issue a certificate that complies with § 245.207 to each person that it designates. (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. (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. (1) Except as provided in paragraph… | |||||
| 49:49:4.1.1.1.39.2.137.4 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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. (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. (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. (4) A railroad will receive approval or disapproval notices from FRA by email. (5) FRA may electronically store any materials required by this part. (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. (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. (ii) If a railroad elects not to provide initial dispatcher training, the railroad will be … | |||||
| 49:49:4.1.1.1.39.2.137.5 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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: (1) The individual meets the prior safety conduct eligibility requirements of §§ 245.111 and 245.113; (2) The individual meets the eligibility requirements of §§ 245.115 and 245.303; (3) The individual meets the visual and hearing acuity standards of §§ 245.117 and 245.118; (4) The individual has the necessary knowledge, as demonstrated by successfully completing a test that meets the requirements of § 245.121; and (5) If applicable, the individual has completed a training program that meets the requirements of § 245.119. (b) Nothing in this section, § 245.111, or § 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 § 245.111 or § 245.113. | |||||
| 49:49:4.1.1.1.39.2.137.6 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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. (b) A railroad shall initially certify a person as a dispatcher for 60 days if the person: (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 (2) Otherwise meets the eligibility requirements provided in § 245.109(a)(1) through (5). (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: (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 (2) Otherwise meets the eligibility requirements provided in § 245.109(a)(1) through (5). (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. (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 § 245.109(a)(1) through (5). (f) Except for persons designated as dis… | |||||
| 49:49:4.1.1.1.39.2.137.7 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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. (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. (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: (1) Information about that person's compliance with § 245.111 within the three years preceding the date of the request; (2) Information about that person's compliance with § 245.115 within the five years preceding the date of the request; and (3) Information about that person's compliance with § 245.303 within the five years preceding the date of the request. (d) Each person submitting a written request required by paragraph (c) of this section shall: (1) Submit the request no more than one year before the date of the railroad's decision on certification or recertification; and (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. (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. (f) If a railroad is unable to provide the information requested within 30 days after receipt of a writt… | |||||
| 49:49:4.1.1.1.39.2.137.8 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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. (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. (c) Fitness requirement. (1) A person who has an active substance abuse disorder shall be denied certification or recertification as a dispatcher. (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. (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 § 245.111), the employee may, if otherwise eligible, voluntarily self-refer for substance abuse counseling or treatment under the policy required by § 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. (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 … | |||||
| 49:49:4.1.1.1.39.2.137.9 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | B | Subpart B—Program and Eligibility Requirements | § 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. (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. (c) Except as provided in paragraph (d) of this section, each dispatcher shall have visual acuity that meets or exceeds the following thresholds: (1) For distant viewing, either: (i) Distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses; or (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; (2) A field of vision of at least 70 degrees in the horizontal meridian in each eye; and (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. (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: (1) In accordance with the guidance prescribed in appendix B to this part, a person is entitled to: (i) One retest without making any showing; and (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. (2) The railroad shall provide its medical examiner with a copy of this part, including all appendices. (3) If, after consultation with a railroad officer, the medical examiner concludes that, despite not meeting t… | |||||
| 49:49:4.1.1.1.39.3.137.1 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | C | Subpart C—Administration of the Certification Program | § 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: (1) A determination concerning eligibility under §§ 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; (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 (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 § 245.121 at intervals that do not exceed two years. (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 § 245.125. (c) Except if a person is designated as a certified dispatcher under § 245.105(c) or (d), no railroad shall certify a person as a dispatcher for an interval of more than three years. (d) Each railroad shall issue each certified dispatcher a certificate that complies with § 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—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | C | Subpart C—Administration of the Certification Program | § 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 § 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 § 245.109. (b) A railroad shall retain the following information: (1) Relevant data from the railroad's records concerning the person's prior safety conduct and eligibility; (2) Relevant data furnished by another railroad; (3) Relevant data furnished by a governmental agency concerning the person's motor vehicle driving record; (4) Relevant data furnished by the person seeking certification concerning their eligibility; (5) The relevant test results data concerning visual and hearing acuity; (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; (7) Relevant data from the railroad's records concerning the person's success or failure on knowledge test(s) under § 245.121; (8) A sample copy of the written knowledge test or tests administered; and (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 § 245.123. (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. (d) If a railroad is relying on a certification decision initially made by another railroad, the relying railroad shall maintain a record for each certificatio… | |||||
| 49:49:4.1.1.1.39.3.137.3 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | C | Subpart C—Administration of the Certification Program | § 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 § 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. (b) The list shall: (1) Be updated at least annually; (2) Be made available, upon request, to FRA representatives in a timely manner; and (3) Be available either: (i) In electronic format pursuant to paragraph (c) of this section; or (ii) At the divisional or regional headquarters of the railroad. (c) If a railroad elects to maintain its list in an electronic format, it must: (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; (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: (i) No two individuals have the same electronic identity; and (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; (3) Have any amendment to the list either: (i) Electronically stored apart from the entry on the list that it amends; or (ii) Electronically attached to the entry on the list as information without changing the original entry; (4) Ensure that each amendment to the list uniquely identifies the person making the amendment; and (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: (i) Provided to FRA representatives in a timely manner; and (ii) Authenticated by a designated representative of the railr… | |||||
| 49:49:4.1.1.1.39.3.137.4 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | C | Subpart C—Administration of the Certification Program | § 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: (1) Identify the railroad or parent company that is issuing the certificate; (2) Indicate that it is a dispatcher certificate; (3) Provide the following information about the certified person: (i) Name; (ii) Employee identification number; and (iii) Either a physical description or photograph of the person; (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; (5) Show the effective date of the certification; (6) Show the expiration date of the certification unless the certificate was issued pursuant to § 245.105(c) or (d); (7) Be signed by an individual designated in accordance with paragraph (b) of this section; and (8) Be electronic or be of sufficiently small size to permit being carried in an ordinary pocket wallet. (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. (c) Nothing in this section shall prohibit any railroad from including additional information on the certificate or supplementing the certificate through other documents. (d) It shall be unlawful for any railroad to knowingly or any individual to willfully: (1) Make, cause to be made, or participate in the making of a false entry on a certificate; or (2) Otherwise falsify a certificate through material misstatement, omission, or mutilation. (e) Except as provided for in paragraph (g) of this section, each certified dispatcher shall: (1) Have their certificate in their possession while on duty as a dispatcher; and (2) Display their certificate upon a request from: (i) An FRA representative; (ii) A state inspector authorized under part 212 of this chapter; (iii) An officer of the issuing railroad; or (iv) An offi… | |||||
| 49:49:4.1.1.1.39.3.137.5 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | C | Subpart C—Administration of the Certification Program | § 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. (b) A railroad that issues multiple certificates to a person, shall, to the extent possible, coordinate the expiration date of those certificates. (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. (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 § 245.301 by another railroad or has their dispatcher certification suspended or revoked under § 245.307 by another railroad. (2) If a person has their dispatcher certification suspended or revoked by a railroad under § 245.307, they may not work as a dispatcher for any other railroad during the period that their certification is suspended or revoked. (3) If a person has their dispatcher certification suspended or revoked by a railroad under § 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. (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. (1) If a person's dispatcher certification is revoked under § 245.307 for a violation of § 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. (2) If a person's dispatcher certification is revoked under § 245.307 for a violation of § 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. (3) If any of a person's non-d… | |||||
| 49:49:4.1.1.1.39.3.137.6 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | C | Subpart C—Administration of the Certification Program | § 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. (b) Each review and analysis shall involve: (1) The number and nature of the instances of detected poor safety conduct including the nature of the remedial action taken in response thereto; (2) The number and nature of FRA reported train accidents attributed to poor safety performance by dispatchers; and (3) The number and type of operational monitoring test failures recorded by railroad officers who meet the requirements of § 217.9(b)(1) of this chapter. (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. (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. (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: (1) Incidents involving failure to properly issue or apply mandatory directives when warranted. (2) Incidents involving improperly authorizing a train or on-track equipment to enter into an out-of-service or blue flag protected track. (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. (4) Incidents involving rem… | |||||
| 49:49:4.1.1.1.39.4.137.1 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | D | Subpart D—Denial and Revocation of Certification | § 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. (b) If a railroad denies a person certification or recertification, it shall issue a decision that complies with all of the following requirements: (1) It must be in writing. (2) It must explain the basis for the railroad's denial decision. (3) It must address any explanation or rebuttal information that the certification candidate provided pursuant to paragraph (a) of this section. (4) It must include the date of the railroad's decision. (5) It must be served on the candidate no later than 10 days after the railroad's decision. (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 § 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—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | D | Subpart D—Denial and Revocation of Certification | § 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. (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. (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. (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. (e) When determining whether to revoke a dispatcher's certification, a railroad shall only consider violations of its operating rules or practices that involve: (1) Failure to properly issue or apply a mandatory directive when warranted. (2) Improperly authorizing a train or on-track equipment to enter into an out-of-service or blue flag protected track. (3) Granting permission for a train or on-track equipment to enter into established RWIC limits without authority or permission from the RWIC. (4) Removal of blocking devices or established protection of RWIC working limits prior to the RWIC releasing the limits. (5) Failure to properly apply blocking devices or establish proper protection for specified working limits or movements of trains or on-track equipment. (6) Granting permission for a train to enter PTC or Cab Signal limits with inoperative or malfunctioning PTC or Cab Signal equipment. (7) Failure to comply with § 219.101 of this chapter. However, such i… | |||||
| 49:49:4.1.1.1.39.4.137.3 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | D | Subpart D—Denial and Revocation of Certification | § 245.305 Periods of ineligibility. | FRA | (a) The starting date for a period of ineligibility described in this section shall be: (1) For a person not currently certified, the date of the railroad's written determination that the most recent incident has occurred; or (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. (b) A period of ineligibility shall be determined according to the following standards: (1) In the case of a single incident involving a violation of one or more of the operating rules or practices described in § 245.303(e)(1) through (6), the person shall have their certificate revoked for a period of 30 calendar days. (2) In the case of two separate incidents involving a violation of one or more of the operating rules or practices described in § 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. (3) In the case of three separate incidents involving violations of one or more of the operating rules or practices, described in § 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. (4) In the case of four separate incidents involving violations of one or more of the operating rules or practices, described in § 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. (5) Where, based on the occurrence of violations described in § 245.303(e)(7), different periods of ineligibility may result under the provisions of this section and § 245.115, the longest period of revocation shall control. (c) Any or all periods of revocation provided in paragraph (b) of this section may consist of training. (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… | |||||
| 49:49:4.1.1.1.39.4.137.4 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | D | Subpart D—Denial and Revocation of Certification | § 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 § 245.303(e), the railroad shall revoke the dispatcher's certification in accordance with the procedures and requirements of this section. (b) Except as provided for in § 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 § 245.303(e) or § 245.115(d), the railroad shall undertake the following process to determine whether revocation of the dispatcher's certification is warranted: (1) The dispatcher's certification shall be suspended immediately. (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. (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. (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 … | |||||
| 49:49:4.1.1.1.39.5.137.1 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | E | Subpart E—Dispute Resolution Procedures | § 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. (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—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | E | Subpart E—Dispute Resolution Procedures | § 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. (b) Each petition shall: (1) Be in writing; (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; (3) Be filed on https://www.regulations.gov. (4) Include the following contact information for the petitioner and petitioner's representative (if petitioner is represented): (i) Full name; (ii) Daytime telephone number; and (iii) Email address; (5) Include the name of the railroad; (6) Contain the facts that the petitioner believes constitute the improper action by the railroad and the arguments in support of the petition; and (7) Include all written documents in the petitioner's possession or reasonably available to the petitioner that document the railroad's decision. (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. (d) The Board may extend the petition filing period in its discretion provided that the petitioner provides good cause for the extension and: (1) The request for an extension is filed before the expiration of the period provided for in paragraph (b)(2) of this section; or (2) The failure to timely file was the result of excusable neglect. (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 § 245.411. | |||||
| 49:49:4.1.1.1.39.5.137.3 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | E | Subpart E—Dispute Resolution Procedures | § 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. (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: (1) Identify the petitioner by name and the docket number for the petition; (2) Provide the railroad's email address; (3) Serve a copy of the information being submitted to the petitioner and petitioner's representative, if any; and (4) File such information on https://www.regulations.gov. (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. (d) When considering procedural issues, the Board will grant the petition if the petitioner shows: (1) That a procedural error occurred; and (2) The procedural error caused substantial harm to the petitioner. (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 decis… | |||||
| 49:49:4.1.1.1.39.5.137.4 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | E | Subpart E—Dispute Resolution Procedures | § 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 § 245.409. (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. (c) A written request for a hearing must contain the following: (1) The name, telephone number, and email address of the requesting party and the requesting party's designated representative (if any); (2) The name, telephone number, and email address of the respondent; (3) The docket number for the case while it was before the Board; (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 (5) The signature of the requesting party or the requesting party's representative (if any). (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. (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—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | E | Subpart E—Dispute Resolution Procedures | § 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. (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. (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. (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. (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. (f) After the request for a hearing is filed, all documents filed or served upon one party must … | |||||
| 49:49:4.1.1.1.39.5.137.6 | 49 | Transportation | II | 245 | PART 245—QUALIFICATION AND CERTIFICATION OF DISPATCHERS | E | Subpart E—Dispute Resolution Procedures | § 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. (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. (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. (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. (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. (f) An appeal from a Board decision pursuant to § 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—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 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 § 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. (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—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 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: (1) A Local educational agency of a school operating under provision 1 requirements shall publicly notify in accordance with § 245.5, parents of enrolled children who are receiving free meals once every two consecutive school years, and shall publicly notify in accordance with § 245.5, parents of all other enrolled children on an annual basis. (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. (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. (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 §§ 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: (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. (2) Cost differential. The local educational agency of a school participating in Provision 2 must pay, with funds from non-… | |||||
| 7:7:4.1.1.1.9.0.1.11 | 7 | Agriculture | II | A | 245 | PART 245—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 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: (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; (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. (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 § 245.6(c)(2) and shall include in their policy statement a copy of such notice. (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 (5) An assurance that the school will abide by the hearing procedure set forth in § 245.7 and the nondiscrimination practices set forth in § 245.8. (b) The policy statement submitted by e… | |||||
| 7:7:4.1.1.1.9.0.1.12 | 7 | Agriculture | II | A | 245 | PART 245—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 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. (b) State agency requirements —(1) Selection criteria. Local educational agencies subject to a second review must include: (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 (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. (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: (i) The number of free and reduced price applications subject to a second review; (ii) The number of reviewed applications for which the eligibility determination was changed; (iii) The percentage of reviewed applications for which the eligibility determination was changed; and (iv) A summary of the types of changes that were made. (3) State agencies must provide technical assistance to ameliorate certification related problems at local educational agencies determined to be at risk for certification. (c) Local educational agency requirements. Beginning July 1, 2014, and each July 1 ther… | |||||
| 7:7:4.1.1.1.9.0.1.13 | 7 | Agriculture | II | A | 245 | PART 245—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 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: (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 § 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 § 210.4(b); (2) Prescribe and publicly announce by July 1 of each fiscal year, in accordance with § 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. (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. (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 § 245.5. (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… | |||||
| 7:7:4.1.1.1.9.0.1.14 | 7 | Agriculture | II | A | 245 | PART 245—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 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. (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: (1) 80% for the school year beginning July 1, 2011; (2) 90% for the school year beginning July 1, 2012; and (3) 95% for the school year beginning July 1, 2013, and for each school year thereafter. (c) Data elements required for direct certification rate calculation. Each State agency must provide FNS with specific data elements each year, as follows: (1) Data Element #1 —The 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 § 245.11(i). (2) Data Element #2 —The 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. (3) Data Element #3 —The count of the number of children who are members of households receiving assistance un… | |||||
| 7:7:4.1.1.1.9.0.1.15 | 7 | Agriculture | II | A | 245 | PART 245—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 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— (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 (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. (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—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 245.15 Information collection/recordkeeping—OMB 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—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 245.2 Definitions. | FNS | Adult means any individual 21 years of age or older. Categorically 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. Commodity 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 § 210.15a(b) to receive commodities donated under part 250 of this chapter for a nonprofit lunch program. Current income means income, as defined in § 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. Direct 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. Disclosure means reveal or use individual children's program eligibility information obtained through the free and reduced price meal … | ||||||
| 7:7:4.1.1.1.9.0.1.3 | 7 | Agriculture | II | A | 245 | PART 245—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 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 § 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. (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 § 245.10 and it must be publicly announced in accordance with the provisions of § 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 § 245.6 (b). (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 § 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… | |||||
| 7:7:4.1.1.1.9.0.1.4 | 7 | Agriculture | II | A | 245 | PART 245—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 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: (a) State agencies shall conduct a statistical survey once every three years in accordance with the standards provided by FNS; (b) State agencies shall submit the survey design to FNS for approval before proceeding with the survey; (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; (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; (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 § 210.8(e)(14) of this chapter; (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; (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—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 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 § 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 § 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 § 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: (1) Except as provided in § 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: (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; (ii) How a household may make application for free or reduced price meals or for free milk for its children; (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 § 245.2; (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 … | |||||
| 7:7:4.1.1.1.9.0.1.6 | 7 | Agriculture | II | A | 245 | PART 245—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 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—content of application and descriptive materials. Each local educational agency, as defined in § 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. (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. (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. (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. (4) Transferring eligibility status. When a student transf… | |||||
| 7:7:4.1.1.1.9.0.1.7 | 7 | Agriculture | II | A | 245 | PART 245—DETERMINING ELIGIBILITY FOR FREE AND REDUCED PRICE MEALS AND FREE MILK IN SCHOOLS | § 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 —(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: (i) SNAP, as defined in 245.2; (ii) The Food Distribution Program on Indian Reservations (FDPIR) as defined in § 245.2; and (iii) A State program funded under the program of block grants to States for temporary assistance for needy families (TANF) as defined in § 245.2. (2) Error prone application. For the purposes of this section, “error prone application” 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. (3) Non-response rate. For the purposes of this section, “non-response rate” 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. (4) Official poverty line. For the purposes of this section, “official poverty line” means that described in section 1902(l)(2)(A) of the Social Security Act (42 U.S.C. 1396a(l)(2)(A)). (5) Sample size. For the purposes of this section, “sample size” 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. (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. (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: (i) Written evidence shall be used as the primary source of information for v… |
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