an agency for obligation for a contract at the time a protest or other action referred to in subsection (b) is filed in connection with a solicitation for, proposed award of, or award of such contract shall remain available for obligation for 100 days after the date on which the final ruling is made on the protest or other action. A ruling is considered final on the date on which the time allowed for filing an appeal or request for reconsideration has expired, or the date on which a decision is rendered on such an appeal or request, whichever is later.

(b) Subsection (a) applies with respect to

(1) any protest filed under subchapter V of chapter 35 of this title; or

(2) an action commenced under administrative procedures or for a judicial remedy if— (A) the action involves a challenge to(i) a solicitation for a contract; (ii) a proposed award of a contract; (iii) an award of a contract; or

(iv) the eligibility of an offeror or potential offeror for a contract or of the contractor awarded the contract; and

(B) commencement of the action delays or prevents an executive agency from making an award of a contract or proceeding with a procurement.

(As amended Pub. L. 104-106, div. E, title LV, § 5502(a), (b), Feb. 10, 1996, 110 Stat. 698, 699.)

AMENDMENTS

1996-Pub. L. 104-106. § 5502(b), substituted "of a formal protest or other challenge" for "of a protest" in section catchline.

Subsec. (a). Pub. L. 104-106. §5502(a)(1), inserted "or other action referred to in subsection (b)" after "time a protest", substituted "100 days" for "90 working days", and inserted "or other action" after "on the protest".

Subsec. (b). Pub. L. 104-106. § 5502(a)(2), added subsec. (b) and struck out former subsec. (b) which read as follows: "Subsection (a) applies with respect to any protest filed under subchapter V of chapter 35 of this title or under section 111(f) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 759(f)).”

EFFECTIVE DATE OF 1996 AMENDMENT Amendment by Pub. L. 104-106 effective 180 days after Feb. 10, 1996, see section 5701 of Pub. L. 104-106, set out as an Effective Date note under section 1401 of Title 40. Public Buildings. Property, and Works.

SUBTITLE III-FINANCIAL

MANAGEMENT

CHAPTER 31-PUBLIC DEBT

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in title 2 sections 651, 1105; title 5 sections 8348, 8438; title 7 sections 934, 947, 1032, 1929. 1929a; title 12 sections 635d, 1431, 1455, 1701g-5b, 1719. 1721, 1783, 1824, 2278b, 2279aa-13, 2288; title 15 sections 78q. 78q-1, 78ddd, 633, 713a-4, 1848, 2509; title 16 sections 831n-1, 831n-3, 831n-4, 838k. 1606a; title 18 section 412d; title 20 sections 760, 1081, 1087-2, 2009, 4510, 4707. 5202. 5705; title 22 sections 282e. 283e, 284e. 286e. 286m, 1980, 2195, 2906; title 26 sections 454, 1037; title 29 section 1305; title 30 section 1144; title 33 section 985; title 36 section 2113; title 38 section 3723; title 39 section 2007; title 40 section 875; title 42 sections 291j-6, 2931, 300e-7, 300q-2, 401, 1104, 1395e, 1395i. 1395t, 1437b, 1440, 1481, 1487. 2210, 2414, 5308, 10156, 10222; title 45 sections 231n, 664.

720; title 46 App. sections 1241h, 1275; title 48 section 1574b; title 50 section 1904; title 50 App. section 2312. SUBCHAPTER I-BORROWING AUTHORITY §3101. Public debt limit

[See main edition for text of (a)]

(b) The face amount of obligations issued under this chapter and the face amount of obligations whose principal and interest are guaranteed by the United States Government (except guaranteed obligations held by the Secretary of the Treasury) may not be more than $5,950,000,000,000, outstanding at one time, subject to changes periodically made in that amount as provided by law through the congressional budget process described in Rule XLIX1 of the Rules of the House of Representatives or otherwise.

[See main edition for text of (c)]

(As amended Pub. L. 104-121, title III, §301, Mar. 29, 1996, 110 Stat. 875; Pub. L. 105-33, title V, § 5701, Aug. 5, 1997, 111 Stat. 648.)

Pub. L. 104-115, §1(a)-(c), Mar. 12, 1996, 110 Stat. 825, authorized Secretary of the Treasury to issue to each Federal fund obligations of United States under this chapter before Mar. 30, 1996, in amount not to exceed certain designated limits, exempted such obligations from public debt limit and provided for termination of such exemption, and defined "Federal fund" for purpose of section.

TIMELY PAYMENT OF MARCH 1996 SOCIAL SECURITY BENEFITS GUARANTEED

Pub. L. 104-103. §1. Feb. 8, 1996, 110 Stat. 55, as amended by Pub. L. 104-115, §1(d), Mar. 12, 1996, 110 Stat. 825, authorized Secretary of the Treasury to issue, before Mar. 1, 1996, obligations of United States under this chapter in amount equal to monthly insurance benefits payable in March 1996 under title II of Social Security Act (42 U.S.C. 401 et seq.), exempted such obligations from public debt limit and provided for termination of such exemption.

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 3130 of this title; title 2 section 632; title 5 sections 8348, 8438; title 12 section 1824; title 42 section 1320b-15.

§3104. Certificates of indebtedness and Treasury bills

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 3108, 3121, 3129 of this title; title 10 sections 4357, 6975, 9356; title 12 section 221.

1 See References in Text note below.

§ 3302. Custodians of money

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 327, 3322, 3711, 3718, 3720 of this title; title 7 section 2016; title 8 sections 1254a, 1363a; title 10 sections 114, 423, 2410m, 7605; title 12 section 4241; title 15 sections 1527a, 2514; title 16 section 746a; title 18 section 1963; title 19 sections 1631, 2081; title 22 sections 1475e, 4226; title 26 section 7608; title 28 sections 1827, 1921; title 38 section 3720; title 42 sections 1973gg-10, 2169, 5812, 5852, 7651o; title 43 section 1338a; title 47 section 923; title 49 sections 111, 45303.

SUBCHAPTER II-PAYMENTS

§ 3321. Disbursing authority in the executive branch

[See main edition for text of (a) and (b)]

(c) The head of each of the following executive agencies shall designate personnel of the agency as disbursing officials to disburse public money available for expenditure by the agency:

(1) United States Marshal's Office.
(2) The Department of Defense.

(3) The Department of Transportation (with respect to public money available for expenditure by the Coast Guard when it is not operating as a service in the Navy).

[See main edition for text of (d)]

(As amended Pub. L. 104-106, div. A, title IX, § 913(a)(1), Feb. 10, 1996, 110 Stat. 410; Pub. L. 104-201, div. A, title X, §1009(a)(1), Sept. 23, 1996, 110 Stat. 2633.)

AMENDMENTS

1996 Subsec. (c)(2). Pub. L. 104-106 added par. (2) and struck out former par. (2) which read as follows: "The Department of Defense (except for disbursements for departmental pay and expenses in the District of Columbia)."

Subsec. (c)(3). Pub. L. 104-201 added par. (3).

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 3716 of this title. § 3322. Disbursing officials

(a) The Secretary of the Treasury shall transfer public money to a disbursing official only by draft or warrant written on the Treasury. Except as provided in section 3716 and section 3720A of this title and subsection (b) of this section, a disbursing official shall

[See main edition for text of (1) and (2); (b) and (c)] (As amended Pub. L. 104-134, title III, § 31001(g)(1)(A), Apr. 26, 1996, 110 Stat. 1321-363;

1 Editorially supplied. Section 3336 added by Pub. L. 104-208 without corresponding amendment of chapter analysis.

Pub. L. 105-264, §3(a)(1), Oct. 19, 1998, 112 Stat. 2352.)

AMENDMENT OF SUBSECTION (c)(1)

Pub. L. 105–264, §3(a)(1), (b), Oct. 19, 1998, 112 Stat. 2352, 2354, provided that, effective 18 months after Oct. 19, 1998, subsection (c)(1) of this section is amended by inserting “if the Administrator of General Services has determined that verification by a prepayment audit conducted pursuant to section 3726(a) of this title for a particular mode or modes of transportation, or for an agency or subagency, will not adequately protect the interests of the Government" after "classifications".

AMENDMENTS

1996 Subsec. (a). Pub. L. 104-134 inserted "section 3716 and section 3720A of this title and" after "Except as provided in" in introductory provisions.

EFFECTIVE DATE OF 1998 AMENDMENT

Pub. L. 105-264, §3(b), Oct. 19, 1998, 112 Stat. 2354, provided that: "The amendments made by this section [amending this section and sections 3528 and 3726 of this title] shall become effective 18 months after the date of the enactment of this Act [Oct. 19, 1998]."

EFFECTIVE DATE OF 1996 AMENDMENT

Section 31001(a)(2)(A) of Pub. L. 104-134 provided that: "The provisions of this section [enacting sections 3720B to 3720E of this title, amending this section, sections 3325, 3331, 3332, 3343, 3701, 3711, 3712, 3716 to 3719, 3720A, and 7701 of this title, section 5514 of Title 5. Government Organization and Employees, sections 6050P, 6103, and 6402 of Title 26, Internal Revenue Code, and sections 404 and 664 of Title 42, The Public Health and Welfare, enacting provisions set out as notes under sections 3701, 3711, 3716, and 3719 of this title and section 2461 of Title 28, Judiciary and Judicial Procedure, amending provisions set out as notes under section 7701 of this title and section 2461 of Title 28, and repealing provisions set out as notes under section 3718 of this title] and the amendments made by this section shall take effect on the date of the enactment of this Act [Apr. 26, 1996]."

§ 3324. Advances

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 781, 3726 of this title; title 2 sections 68e, 95c, 475; title 5 sections 3381, 4109, 5923, 5924; title 7 sections 4271, 1624, 3318; title 8 section 1363a; title 10 sections 2013, 2127, 2371, 2388, 2852, 6154, 18239; title 12 sections 1701c, 1701z-2, 3012; title 15 sections 196, 634, 2056, 2451, 2609, 2626; title 16 sections 4607-1, 565a-1, 581i-1, 1645, 2107; title 18 sections 4109, 4204; title 19 sections 2076, 2080, 2081; title 20 sections 959, 2012, 2106, 4414, 4513, 5708; title 21 sections 360j, 360ii; title 22 sections 287e-1, 289c, 294, 2103, 2179; title 25 sections 3115, 3733; title 26 section 7608; title 28 section 995; title 29 section 1774; title 33 section 1254; title 37 section 1006; title 38 sections 7613, 7673; title 40 section 462; title 42 sections 242m, 2541, 285a-2, 285b-3, 285n, 299c-3, 300c-22, 300u, 300cc-41, 1870, 2473, 3105, 4101, 4372, 7403, 7404; title 49 section 44505; title 50 sections 491, 502, 522; title 50 App. section 1918.

§3325. Vouchers

(a) A disbursing official in the executive branch of the United States Government shall—

[See main edition for text of (1) and (2)]

(3) except for the correctness of computations on a voucher or pursuant to payment

intercepts or offsets pursuant to section 3716 or 3720A of this title,,1 be held accountable for carrying out clauses (1) and (2) of this subsection.

(b) In addition to officers and employees referred to in subsection (a)(1)(B) of this section as having authorization to certify vouchers, members of the armed forces may certify vouchers when authorized, in writing, by the Secretary of Defense or, in the case of the Coast Guard when it is not operating as a service in the Navy, by the Secretary of Transportation.

[See main edition for text of (c)]

(d) The head of an executive agency or an officer or employee of an executive agency referred to in subsection (a)(1)(B), as applicable, shall include with each certified voucher submitted to a disbursing official pursuant to this section the taxpayer identifying number of each person to whom payment may be made under the voucher. (As amended Pub. L. 104-106, div. A, title IX, §913(b), Feb. 10, 1996, 110 Stat. 411; Pub. L. 104-134, title III, §31001(g)(1)(B), (y), Apr. 26, 1996, 110 Stat. 1321-363, 1321-378; Pub. L. 104-201, div. A, title X, § 1009(b), Sept. 23, 1996, 110 Stat. 2634.)

AMENDMENTS

1996 Subsec. (a)(3). Pub. L. 104-134. § 31001(g)(1)(B), inserted "or pursuant to payment intercepts or offsets pursuant to section 3716 or 3720A of this title." after "voucher".

Subsec. (b). Pub. L. 104-201 substituted "members of the armed forces may certify vouchers when authorized, in writing, by the Secretary of Defense or, in the case of the Coast Guard when it is not operating as a service in the Navy, by the Secretary of Transportation" for "members of the armed forces under the jurisdiction of the Secretary of Defense may certify vouchers when authorized, in writing, by the Secretary to do so".

Pub. L. 104-106 amended subsec. (b) generally. Prior to amendment, subsec. (b) read as follows: "Subsection (a) of this section does not apply to disbursements of a military department of the Department of Defense, except for disbursements for departmental pay and expenses in the District of Columbia.'

Subsec. (d). Pub. L. 104-134, §31001(y). added subsec.

(d).

§ 3328. Paying checks and drafts

(a) TIME LIMIT ON TREASURY CHECKS.

[See main edition for text of (1)]

(2) DEFERRAL PENDING SETTLEMENT.-Notwithstanding the time limitations imposed by paragraph (1), if the Secretary is on notice of a question of law or fact about whether a Treasury check is properly payable when the check is presented for payment, the Secretary may defer payment on such check until the question is settled.

[See main edition for text of (3)]

(b) [See main edition for text of (1)]

(2) A claim for the proceeds of an unpaid check under this subsection may be paid from a consolidated account by a check drawn on the Treasury.

1 So in original.

[See main edition for text of (c)]

(d) The Secretary may prescribe regulations the Secretary decides are necessary to carry out subsections (a)-(c) of this section.

[See main edition for text of (e) and (f)]

(As amended Pub. L. 104-316, title I, §115(d), Oct. 19, 1996, 110 Stat. 3834.)

AMENDMENTS

1996 Subsec. (a)(2). Pub. L. 104-316, §115(d)(1), substituted "until the question is settled" for "until the Comptroller General settles the question".

Subsec. (b)(2). Pub. L. 104–316, §115(d)(2), struck out "on settlement by the Comptroller General" after "the Treasury".

Subsec. (d). Pub. L. 104–316, §115(d)(3). substituted "The" for "With the approval of the Comptroller General, the".

§ 3329. Withholding checks to be sent to foreign

countries

[See main edition for text of (a)]

(b) [See main edition for text of (1) to (3)]

(4) The drawee shall transfer the amount of a withheld check or warrant from the account of the drawer to the special deposit account "Secretary of the Treasury, Proceeds of Withheld Foreign Checks". The check or warrant shall be marked "Paid into Withheld Foreign Check Account". The Secretary shall credit the accounts of the drawer and drawee.

[See main edition for text of (c) and (d)] (As amended Pub. L. 104-316, title I, § 115(e), Oct. 19, 1996, 110 Stat. 3834.)

AMENDMENTS

1996 Subsec. (b)(4). Pub. L. 104-316 substituted "The Secretary shall credit the accounts of the drawer and drawee." for "After that time, the drawee shall send all withheld checks and warrants to the Comptroller General. The Comptroller General shall credit the accounts of the drawer and drawee."

§ 3331. Substitute checks

[See main edition for text of (a)]

(b) When the Secretary of the Treasury is satisfied that an original check is lost, stolen, destroyed in any part, or is so defaced that the value to the owner or holder is impaired, the Secretary may issue a substitute check to the owner or holder of the original check. Except as provided in subsection (c) or (f) of this section, the substitute check is payable from the amount available to pay the original check.

[See main edition for text of (c) to (e)]

(f) The Secretary may waive any provision of this section as may be necessary to ensure that claimants receive timely payments.

(g) Under conditions the Secretary may prescribe, the Secretary may delegate duties and powers of the Secretary under this section to the head of an agency. Consistent with a delegation from the Secretary under this subsection, the head of an agency may delegate those duties and powers to an officer or employee of the agency.

1996 Subsec. (b). Pub. L. 104-134, §31001(x)(2)(A), substituted "subsection (c) or (f)" for "subsection (c)". Subsecs. (f), (g). Pub. L. 104-134, §31001(x)(2)(B), (C), added subsec. (f) and redesignated former subsec. (f) as (g).

§ 3332. Required direct deposit

[See main edition for text of (a) to (d)] (e)(1) Notwithstanding subsections (a) through (d) of this section, sections 5120(a) and (d) of title 38, and any other provision of law, all Federal payments to a recipient who becomes eligible for that type of payment after 90 days after the date of the enactment of the Debt Collection Improvement Act of 1996 shall be made by electronic funds transfer.

(2) The head of a Federal agency shall, with respect to Federal payments made or authorized by the agency, waive the application of paragraph (1) to a recipient of those payments upon receipt of written certification from the recipient that the recipient does not have an account with a financial institution or an authorized payment agent.

(f)(1) Notwithstanding any other provision of law (including subsections (a) through (e) of this section and sections 5120(a) and (d) of title 38), except as provided in paragraph (2) all Federal payments made after January 1, 1999, shall be made by electronic funds transfer.

(2)(A) The Secretary of the Treasury may waive application of this subsection to payments

(i) for individuals or classes of individuals for whom compliance imposes a hardship;

(ii) for classifications or types of checks; or (iii) in other circumstances as may be necessary.

(B) The Secretary of the Treasury shall make determinations under subparagraph (A) based on standards developed by the Secretary.

(g) Each recipient of Federal payments required to be made by electronic funds transfer shall

(1) designate 1 or more financial institutions or other authorized agents to which such payments shall be made; and

(2) provide to the Federal agency that makes or authorizes the payments information necessary for the recipient to receive electronic funds transfer payments through each institution or agent designated under paragraph (1). (h) The crediting of the amount of a payment to the appropriate account on the books of a financial institution or other authorized payment agent designated by a payment recipient under this section shall constitute a full acquittance to the United States for the amount of the payment.

(i)(1) The Secretary of the Treasury may prescribe regulations that the Secretary considers necessary to carry out this section.

(2) Regulations under this subsection shall ensure that individuals required under subsection (g) to have an account at a financial institution because of the application of subsection (f)(1)—

(A) will have access to such an account at a reasonable cost; and

(B) are given the same consumer protections with respect to the account as other account holders at the same financial institution.

(j) For purposes of this section

(1) The term "electronic funds transfer" means any transfer of funds, other than a transaction originated by cash, check, or similar paper instrument, that is initiated through an electronic terminal, telephone, computer, or magnetic tape, for the purpose of ordering, instructing, or authorizing a financial institution to debit or credit an account. The term includes Automated Clearing House transfers, Fed Wire transfers, transfers made at automatic teller machines, and point-of-sale terminals.

(2) The term "Federal agency" means

(A) an agency (as defined in section 101 of this title); and

(B) a Government corporation (as defined in section 103 of title 5).

(3) The term "Federal payments" includes(A) Federal wage, salary, and retirement payments;

(B) vendor and expense reimbursement payments; and

Any waiver in effect on Oct. 5, 1999, under subsec. (f)(2)(A)(i) of this section to remain in effect until otherwise provided by the Secretary of Defense under section 2786 of Title 10, Armed Forces, see section 1008(a)(3) of Pub. L. 106-65, set out as a note under section 2786 of Title 10.

SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in title 10 sections 1594, 2786.

§ 3336. Electronic benefit transfer pilot (a) The Congress finds that:

(1) Electronic benefit transfer (EBT) is a safe, reliable, and economical way to provide benefit payments to individuals who do not have an account at a financial institution.

(2) The designation of financial institutions as financial agents of the Federal Government for EBT is an appropriate and reasonable use of the Secretary's authority to designate financial agents.

(3) A joint federal-state1 EBT system offers convenience and economies of scale for those states (and their citizens) that wish to deliver state-administered benefits on a single card by entering into a partnership with the federal government.1

(4) The Secretary's designation of a financial agent to deliver EBT is a specialized service not available through ordinary business channels and may be offered to the states1 pursuant to section 6501 et seq. of this title.

(b) The Secretary shall continue to carry out the existing EBT pilot to disburse benefit payments electronically to recipients who do not have an account at a financial institution, which shall include the designation of one or more financial institution 2 as a financial agent of the Government, and the offering to the participating states1 of the opportunity to contract with the financial agent selected by the Secretary, as described in the Invitation for Expressions of Interest to Acquire EBT Services for the Southern Alliance of States dated March 9, 1995, as amended as of June 30, 1995, July 7, 1995, and August 1, 1995.

(c) The selection and designation of financial agents, the design of the pilot program, and any other matter associated with or related to the EBT pilot described in subsection (b) shall not be subject to judicial review.

(Added Pub. L. 104-208, div. A, title I, §101(f) [title VI, § 664], Sept. 30, 1996, 110 Stat. 3009-314, 3009-385.)

SUBCHAPTER III-MISCELLANEOUS

§ 3342. Check cashing and exchange transactions [See main edition for text of (a)]

(b) A disbursing official may act under subsection (a)(1) and (2) of this section only for[See main edition for text of (1) and (2)] (3) a dependent of personnel of the Government, but only

(A) at a United States installation at which adequate banking facilities are not available; and

(B) in the case of negotiation of negotiable instruments, if the dependent's sponsor authorizes, in writing, the presentation of negotiable instruments to the disbursing official for negotiation;

(4) a veteran hospitalized or living in an institution operated by an agency;

(5) a contractor, or personnel of a contractor, carrying out a Government project;

(6) personnel of an authorized agency not part of the Government that operates with an agency of the Government; or

(7) a Federal credit union (as defined in section 101(1) of the Federal Credit Union Act (12 U.S.C. 1752(1))3 that at the request of the Secretary of Defense is operating on a United States military installation in a foreign coun

'So in original. Probably should be capitalized.

2 So in original. Probably should be "institutions". "So in original. There probably should be an additional closing parenthesis.

try, but only if that country does not permit contractor-operated military banking facilities to operate on such installations.

(c) [See main edition for text of (1) and (2)]

(3) The amount of any deficiency resulting from cashing a check for a dependent under subsection (b)(3), including any charges assessed against the disbursing official by a financial institution for insufficient funds to pay the check, may be offset from the pay of the dependent's sponsor.

(4) Amounts necessary to adjust for deficiencies in the account of a disbursing official because of transactions under subsection (a) of this section are authorized to be appropriated.

[See main edition for text of (d)]

(e) Regulations prescribed under subsection (d) shall include regulations that define the terms "dependent" and "sponsor" for the purposes of this section. In the regulations, the term "dependent", with respect to a member of a uniformed service, shall have the meaning given that term in section 401 of title 37.

(f) With respect to automated teller machines on naval vessels, the authority of a disbursing official of the United States Government under subsection (a) also includes the following:

(1) The authority to provide operating funds to the automated teller machines.

(2) The authority to accept, for safekeeping, deposits and transfers of funds made through the automated teller machines.

(As amended Pub. L. 104-106, div. A, title X, § 1090, Feb. 10, 1996, 110 Stat. 459; Pub. L. 104-201, div. A, title X, § 1011, Sept. 23, 1996, 110 Stat. 2635; Pub. L. 106-65, div. A, title III, §372, Oct. 5, 1999, 113 Stat. 580.)

AMENDMENTS

1999-Subsec. (f). Pub. L. 106-65 added subsec. (f). 1996-Subsec. (b)(3). Pub. L. 104-201, §1011(1), substituted a semicolon for the period at end.

Pub. L. 104-106, §1090(a)(2), added par. (3). Former par. (3) redesignated (4).

Subsec. (b)(4) to (6). Pub. L. 104-106, § 1090(a)(1), redesignated pars. (3) to (5) as (4) to (6), respectively.

Subsec. (b)(7). Pub. L. 104-201, § 1011(2)–(4), added par. (7).

Subsec. (c)(3), (4). Pub. L. 104-106, § 1090(b), added par. (3) and redesignated former par. (3) as (4). Subsec. (e). Pub. L. 104-106, §1090(c), added subsec. (e).

§ 3343. Check forgery insurance fund

(a) The Department of the Treasury has a special deposit revolving fund, the "Check Forgery Insurance Fund". Necessary amounts are hereafter appropriated to the Fund out of any moneys in the Treasury not otherwise appropriated, and shall remain available until expended to make the payments required or authorized under this section. The Fund consists of amounts

[See main edition for text of (1) and (2)]

(b) The Secretary of the Treasury shall pay from the Fund to a payee or special endorsee of a check drawn on the Treasury or a depositary designated by the Secretary the amount of the check without interest if in the determination