Last updated on March 14th, 2023 at 04:42 pm
Title 5 – Administrative Personnel–Volume 3
CHAPTER II – MERIT SYSTEMS PROTECTION BOARD
SUBCHAPTER A – ORGANIZATION AND PROCEDURES
PART 1200 – BOARD ORGANIZATION
Subpart A – General
§ 1200.1 Statement of purpose.
The Merit Systems Protection Board (the Board) is an independent Government agency that operates like a court. The Board was created to ensure that all Federal government agencies follow Federal merit systems practices. The Board does this by adjudicating Federal employee appeals of agency personnel actions, and by conducting special reviews and studies of Federal merit systems.
§ 1200.2 Board members and duties.
(a) The Board has three members whom the President appoints and the Senate confirms. Members of the Board serve seven-year terms.
(b) The President appoints, with the Senate’s consent, one member of the Board to serve as Chairman and chief executive officer of the Board. The President also appoints one member of the Board to serve as Vice Chairman. If the office of the Chairman is vacant or the Chairman cannot perform his or her duties, then the Vice Chairman performs the Chairman’s duties. If both the Chairman and the Vice Chairman cannot perform their duties, then the remaining Board Member performs the Chairman’s duties.
§ 1200.3 How the Board members make decisions.
(a) The three Board members make decisions in all cases by majority vote except in circumstances described in paragraphs (b) and (c) of this section or as otherwise provided by law.
(b) When due to a vacancy, recusal or other reasons, the Board members are unable to decide any case by majority vote, the decision, recommendation or order under review shall be deemed the final decision or order of the Board. The Chairman of the Board may direct the issuance of an order consistent with this paragraph.
(c) When due to a vacancy, recusal or other reasons, the Board members are unable to decide a matter in a case which does not involve a decision, recommendation or order, the Chairman may direct referral of the matter to an administrative judge or other official for final disposition.
(d) Decisions and orders issued pursuant to paragraphs (b) and (c) of this section shall not be precedential.
(e) This section applies only when at least two Board members are in office.
§ 1200.4 Petition for rulemaking.
(a) Any interested person may petition the MSPB for the issuance, amendment, or repeal of a rule. For purposes of this regulation, a “rule” means a regulation contained in 5 CFR parts 1200 through 1216. Each petition shall:
(1) Be submitted to the Clerk of the Board, 1615 M Street NW., Washington, DC 20419;
(2) Set forth the text or substance of the rule or amendment proposed or specify the rule sought to be repealed;
(3) Explain the petitioner’s interest in the action sought; and
(4) Set forth all data and arguments available to the petitioner in support of the action sought.
(b) No public procedures will be held on the petition before its disposition. If the MSPB finds that the petition contains adequate justification, a rulemaking proceeding will be initiated or a final rule will be issued as appropriate under the Administrative Procedure Act. If the Board finds that the petition does not contain adequate justification, the petition will be denied by letter or other notice, with a brief statement of the ground for denial. The Board may consider new evidence at any time; however, repetitious petitions for rulemaking will not be considered.
Subpart B – Offices of the Board
§ 1200.10 Staff organization and functions.
(a) The Board’s headquarters staff is organized into the following offices and divisions:
(1) Office of Regional Operations.
(2) Office of the Administrative Law Judge.
(3) Office of Appeals Counsel.
(4) Office of the Clerk of the Board.
(5) Office of the General Counsel.
(6) Office of Policy and Evaluation.
(7) Office of Equal Employment Opportunity.
(8) Office of Financial and Administrative Management.
(9) Office of Information Resources Management.
(b) The principal functions of the Board’s headquarters offices are as follows:
(1) Office of Regional Operations. The Director, Office of Regional Operations, manages the adjudicatory and administrative functions of the MSPB regional and field offices.
(2) Office of the Administrative Law Judge. The Administrative Law Judge hears Hatch Act cases, disciplinary action complaints brought by the Special Counsel, actions against administrative law judges, appeals of actions taken against MSPB employees, and other cases that the Board assigns.
(3) Office of Appeals Counsel. The Director, Office of Appeals Counsel, prepares proposed decisions that recommend appropriate action by the Board in petition for review cases, original jurisdiction cases, and other cases assigned by the Board.
(4) Office of the Clerk of the Board. The Clerk of the Board enters petitions for review and other headquarters cases onto the Board’s docket and monitors their processing. The Clerk of the Board also does the following:
(i) Serves as the Board’s public information center, including providing information on the status of cases, distributing copies of Board decisions and publications, and operating the Board’s Library and on-line information services;
(ii) Manages the Board’s records, reports, legal research, and correspondence control programs; and
(iii) Answers requests under the Freedom of Information and Privacy Acts at the Board’s headquarters, and answers other requests for information except those for which the Office of the General Counsel or the Office of Policy and Evaluation is responsible.
(5) Office of the General Counsel. The General Counsel provides legal advice to the Board and its headquarters and regional offices; represents the Board in court proceedings; prepares proposed decisions for the Board in cases that the Board assigns; coordinates legislative policy and performs legislative liaison; responds to requests for non-case related information from the White House, Congress, and the media; and plans and directs audits and investigations.
(6) Office of Policy and Evaluation. The Director, Policy and Evaluation, carries out the Board’s statutory responsibility to conduct special reviews and studies of the civil service and other merit systems in the Executive Branch, as well as oversight reviews of the significant actions of the Office of Personnel Management. The office prepares the Board’s reports of these reviews and studies, submits them to the President and the Congress, and makes them available to other interested individuals and organizations. The office is responsible for distributing the Board’s reports and for responding to requests for information or briefings concerning them.
(7) Office of Equal Employment Opportunity. The Director, Office of Equal Employment Opportunity, manages the Board’s equal employment programs.
(8) Office of Financial and Administrative Management. The Office of Financial and Administrative Management administers the budget, accounting, procurement, property management, physical security, and general services functions of the Board. It also develops and coordinates internal management programs and projects, including review of internal controls agencywide. It performs certain personnel functions, including policy, training, drug testing, and the Employee Assistance Program. It also administers the agency’s cross-servicing arrangements with the U.S. Department of Treasury’s Bureau of Public Debt for accounting services and with the U.S. Department of Agriculture’s National Finance Center for payroll and personnel action processing services and with the U.S. Department of Agriculture’s APHIS Business Services for most human resources management services.
(9) Office of Information Resources Management. The Office of Information Resources Management develops, implements, and maintains the Board’s automated information systems.
(c) Regional and Field Offices. The Board has regional and field offices located throughout the country (See Appendix II to 5 CFR part 1201 for a list of the regional and field offices). Judges in the regional and field offices hear and decide initial appeals and other assigned cases as provided for in the Board’s regulations.
PART 1201 – PRACTICES AND PROCEDURES
Subpart A – Jurisdiction and Definitions
§ 1201.1 General.
The Board has two types of jurisdiction, original and appellate.
§ 1201.2 Original jurisdiction.
The Board’s original jurisdiction includes the following cases:
(a) Actions brought by the Special Counsel under 5 U.S.C. 1214, 1215, and 1216;
(b) Requests, by persons removed from the Senior Executive Service for performance deficiencies, for informal hearings; and
(c) Actions taken against administrative law judges under 5 U.S.C. 7521.
§ 1201.3 Appellate jurisdiction.
(a) Generally. The Board’s appellate jurisdiction is limited to those matters over which it has been given jurisdiction by law, rule, or regulation. The Board’s jurisdiction does not depend solely on the label or nature of the action or decision taken or made but may also depend on the type of Federal appointment the individual received, e.g., competitive or excepted service, whether an individual is preference eligible, and other factors. Accordingly, the laws and regulations cited below, which are the source of the Board’s jurisdiction, should be consulted to determine not only the nature of the actions or decisions that are appealable, but also the limitations as to the types of employees, former employees, or applicants for employment who may assert them. Instances in which a law or regulation authorizes the Board to hear an appeal or claim include the following:
(1) Adverse actions. Removals (terminations of employment after completion of probationary or other initial service period), reductions in grade or pay, suspension for more than 14 days, or furloughs for 30 days or less for cause that will promote the efficiency of the service; an involuntary resignation or retirement is considered to be a removal (5 U.S.C. 7511-7514; 5 CFR part 752, subparts C and D);
(2) Retirement appeals. Determinations affecting the rights or interests of an individual under the Federal retirement laws (5 U.S.C. 8347(d)(1)-(2) and 8461(e)(1); and 5 U.S.C. 8331 note; 5 CFR parts 831, 839, 842, 844, and 846);
(3) Termination of probationary employment. Appealable issues are limited to a determination that the termination was motivated by partisan political reasons or marital status, and/or if the termination was based on a pre-appointment reason, whether the agency failed to take required procedures. These appeals are not generally available to employees in the excepted service. (38 U.S.C. 2014(b)(1)(D); 5 CFR 315.806 & 315.908(b));
(4) Restoration to employment following recovery from a work-related injury. Failure to restore, improper restoration of, or failure to return following a leave of absence following recovery from a compensable injury. (5 CFR 353.304);
(5) Performance-based actions under chapter 43. Reduction in grade or removal for unacceptable performance (5 U.S.C. 4303(e); 5 CFR part 432);
(6) Reduction in force. Separation, demotion, or furlough for more than 30 days, when the action was effected because of a reduction in force (5 CFR 351.901); Reduction-in-force action affecting a career or career candidate appointee in the Foreign Service (22 U.S.C. 4011);
(7) Employment practices appeal. Employment practices administered by the Office of Personnel Management to examine and evaluate the qualifications of applicants for appointment in the competitive service (5 CFR 300.104);
(8) Denial of within-grade pay increase. Reconsideration decision sustaining a negative determination of competence for a general schedule employee (5 U.S.C. 5335(c); 5 CFR 531.410);
(9) Suitability action. Action based on suitability determinations, which relate to an individual’s character or conduct that may have an impact on the integrity or efficiency of the service. Suitability actions include the cancellation of eligibility, removal, cancellation of reinstatement eligibility, and debarment. A non-selection or cancellation of eligibility for a specific position based on an objection to an eligible or a pass over of a preference eligible under 5 CFR 332.406 is not a suitability action. (5 CFR 731.501, 731.203, 731.101(a));
(10) Various actions involving the Senior Executive Service. Removal or suspension for more than 14 days (5 U.S.C. 7543(d) and 5 CFR 752.605); Reduction-in-force action affecting a career appointee (5 U.S.C. 3595); Furlough of a career appointee (5 CFR 359.805); Removal or transfer of a Senior Executive Service employee of the Department of Veterans Affairs (38 U.S.C. 713 and 5 CFR part 1210); and
(11) Miscellaneous restoration and reemployment matters.
(i) Failure to afford reemployment priority rights pursuant to a Reemployment Priority List following separation by reduction in force (5 CFR 330.214);
(ii) Full recovery from a compensable injury after more than 1 year, because of the employment of another person (5 CFR 302.501);
(iii) Failure to reinstate a former employee after service under the Foreign Assistance Act of 1961 (5 CFR 352.508);
(iv) Failure to re-employ a former employee after movement between executive agencies during an emergency (5 CFR 352.209);
(v) Failure to re-employ a former employee after detail or transfer to an international organization (5 CFR 352.313);
(vi) Failure to re-employ a former employee after service under the Indian Self-Determination Act (5 CFR 352.707); or
(vii) Failure to re-employ a former employee after service under the Taiwan Relations Act (5 CFR 352.807).
(b)(1) Appeals under the Uniformed Services Employment and Reemployment Rights Act and the Veterans Employment Opportunities Act. Appeals filed under the Uniformed Services Employment and Reemployment Rights Act (Public Law 103-353), as amended, and the Veterans Employment Opportunities Act (Public Law 105-339) are governed by part 1208 of this title. The provisions of subparts A, B, C, and F of part 1201 apply to appeals governed by part 1208 unless other specific provisions are made in that part. The provisions of subpart H of this part regarding awards of attorney fees apply to appeals governed by part 1208 of this title.
(2) Appeals involving an allegation that the action was based on appellant’s whistleblowing or other protected activity. Appeals of actions appealable to the Board under any law, rule, or regulation, in which the appellant alleges that the action was taken because of the appellant’s whistleblowing or other protected activity, are governed by part 1209 of this title. The provisions of subparts B, C, E, F, and G of part 1201 apply to appeals and stay requests governed by part 1209 unless other specific provisions are made in that part. The provisions of subpart H of this part regarding awards of attorney fees, compensatory damages, and consequential damages under 5 U.S.C. 1221(g) apply to appeals governed by part 1209 of this chapter.
(c) Limitations on appellate jurisdiction, collective bargaining agreements, and election of procedures:
(1) For an employee covered by a collective bargaining agreement under 5 U.S.C. 7121, the negotiated grievance procedures contained in the agreement are the exclusive procedures for resolving any action that could otherwise be appealed to the Board, with the following exceptions:
(i) An appealable action involving discrimination under 5 U.S.C. 2302(b)(1), reduction in grade or removal under 5 U.S.C. 4303, or adverse action under 5 U.S.C. 7512, may be raised under the Board’s appellate procedures, or under the negotiated grievance procedures, but not under both;
(ii) An appealable action involving a prohibited personnel practice other than discrimination under 5 U.S.C. 2302(b)(1) may be raised under not more than one of the following procedures:
(A) The Board’s appellate procedures;
(B) The negotiated grievance procedures; or
(C) The procedures for seeking corrective action from the Special Counsel under subchapters II and III of chapter 12 of title 5 of the United States Code.
(iii) Except for actions involving discrimination under 5 U.S.C. 2302(b)(1) or any other prohibited personnel practice, any appealable action that is excluded from the application of the negotiated grievance procedures may be raised only under the Board’s appellate procedures.
(2) Choice of procedure. When an employee has an option of pursuing an action under the Board’s appeal procedures or under negotiated grievance procedures, the Board considers the choice between those procedures to have been made when the employee timely files an appeal with the Board or timely files a written grievance, whichever event occurs first. When an employee has the choice of pursuing an appealable action involving a prohibited personnel practice other than discrimination under 5 U.S.C. 2302(b)(1) in accordance with paragraph (c)(1)(ii) of this section, the Board considers the choice among those procedures to have been made when the employee timely files an appeal with the Board, timely files a written grievance under the negotiated grievance procedure, or seeks corrective action from the Special Counsel by making an allegation under 5 U.S.C. 1214(a)(1), whichever event occurs first.
(3) Review of discrimination grievances. If an employee chooses the negotiated grievance procedure under paragraph (c)(2) of this section and alleges discrimination as described at 5 U.S.C. 2302(b)(1), then the employee, after having obtained a final decision under the negotiated grievance procedure, may ask the Board to review that final decision. The request must be filed with the Clerk of the Board in accordance with § 1201.154.
§ 1201.4 General definitions.
(a) Judge. Any person authorized by the Board to hold a hearing or to decide a case without a hearing, including the Board or any member of the Board, or an administrative law judge appointed under 5 U.S.C. 3105 or other employee of the Board designated by the Board to hear such cases, except that in any case involving a removal from the service, the case shall be heard by the Board, an employee experienced in hearing appeals, or an administrative law judge.
(b) Pleading. Written submission setting out claims, allegations, arguments, or evidence. Pleadings include briefs, motions, petitions, attachments, and responses.
(c) Motion. A request that a judge take a particular action.
(d) Appropriate regional or field office. The regional or field office of the Board that has jurisdiction over the area where the appellant’s duty station was located when the agency took the action. Appeals of Office of Personnel Management reconsideration decisions concerning retirement benefits, and appeals of adverse suitability determinations under 5 CFR part 731, must be filed with the regional or field office that has jurisdiction over the area where the appellant lives. Appendix II of these regulations lists the geographic areas over which each of the Board’s regional and field offices has jurisdiction. Appeals, however, may be transferred from one regional or field office to another.
(e) Party. A person, an agency, or an intervenor, who is participating in a Board proceeding. This term applies to the Office of Personnel Management and to the Office of Special Counsel when those organizations are participating in a Board proceeding.
(f) Appeal. A request for review of an agency action.
(g) Petition for review. A request for review of an initial decision of a judge.
(h) Day. Calendar day.
(i) Service. The process of furnishing a copy of any pleading to Board officials, other parties, or both, by mail, by facsimile, by commercial or personal delivery, or by electronic filing (e-filing) in accordance with § 1201.14.
(j) Date of service. “Date of service” has the same meaning as “date of filing” under paragraph (l) of this section.
(k) Certificate of service. A document certifying that a party has served copies of pleadings on the other parties or, in the case of paper documents associated with electronic filings under paragraph (h) of § 1201.14, on the MSPB.
(l) Date of filing. A document that is filed with a Board office by personal delivery is considered filed on the date on which the Board office receives it. The date of filing by facsimile is the date of the facsimile. The date of filing by mail is determined by the postmark date; if no legible postmark date appears on the mailing, the submission is presumed to have been mailed five days (excluding days on which the Board is closed for business) before its receipt. The date of filing by commercial delivery is the date the document was delivered to the commercial delivery service. The date of filing by e-filing is the date of electronic submission.
(m) Electronic filing (e-filing). Filing and receiving documents in electronic form in proceedings within the Board’s appellate or original jurisdiction in accordance with § 1201.14.
(n) E-filer. A party or representative who has registered to engage in e-filing under paragraph (e) of § 1201.14.
(o) Grievance. A complaint by an employee or labor organization under a negotiated grievance procedure covered by 5 U.S.C. 7121.
(p) Substantial evidence. The degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might disagree. This is a lower standard of proof than preponderance of the evidence.
(q) Preponderance of the evidence. The degree of relevant evidence that a reasonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.
(r) Harmful error. Error by the agency in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. The burden is upon the appellant to show that the error was harmful, i.e., that it caused substantial harm or prejudice to his or her rights.
(s) Nonfrivolous allegation. A nonfrivolous allegation is an assertion that, if proven, could establish the matter at issue. An allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an individual makes an allegation that:
(1) Is more than conclusory;
(2) Is plausible on its face; and
(3) Is material to the legal issues in the appeal.
Subpart B – Procedures for Appellate Cases
General
§ 1201.11 Scope and policy.
The regulations in this subpart apply to Board appellate proceedings except as otherwise provided in § 1201.13. The regulations in this subpart apply also to appellate proceedings and stay requests covered by part 1209 unless other specific provisions are made in that part. These regulations also apply to original jurisdiction proceedings of the Board except as otherwise provided in subpart D. It is the Board’s policy that these rules will be applied in a manner that expedites the processing of each case. It is the Board’s policy that these rules will be applied in a manner that ensures the fair and efficient processing of each case.
§ 1201.12 Revocation, amendment, or waiver of rules.
The Board may revoke, amend, or waive any of these regulations. A judge may, for good cause shown, waive a Board regulation unless a statute requires application of the regulation. The judge must give notice of the waiver to all parties, but is not required to give the parties an opportunity to respond.
§ 1201.13 Appeals by Board employees.
Appeals by Board employees will be filed with the Clerk of the Board and will be assigned to an administrative law judge for adjudication under this subchapter. The Board’s policy is to insulate the adjudication of its own employees’ appeals from agency involvement as much as possible. Accordingly, the Board will not disturb initial decisions in those cases unless the party shows that there has been harmful procedural irregularity in the proceedings before the administrative law judge or a clear error of law. In addition, the Board, as a matter of policy, will not rule on any interlocutory appeals or motions to disqualify the administrative law judge assigned to those cases until the initial decision has been issued.
§ 1201.14 Electronic filing procedures.
(a) General. This section prescribes the rules and procedures by which parties and representatives to proceedings within the MSPB’s appellate and original jurisdiction may file and receive documents in electronic form.
(b) Matters subject to electronic filing. Subject to the registration requirement of paragraph (e) of this section, parties and representatives may use electronic filing (e-filing) to do any of the following:
(1) File any pleading, including a new appeal, in any matter within the MSPB’s appellate jurisdiction (§ 1201.3);
(2) File any pleading in any matter within the MSPB’s original jurisdiction (§ 1201.2);
(3) File a petition for enforcement of a final MSPB decision (§ 1201.182);
(4) File a motion for an attorney fee award as a prevailing party (§ 1201.203);
(5) File a motion for compensatory or consequential damages (§ 1201.204);
(6) Designate a representative, revoke such a designation, or change such a designation (§ 1201.31); or
(7) Notify the MSPB of a change in contact information such as address (geographic or electronic mail) or telephone number.
(c) Matters excluded from electronic filing. Electronic filing may not be used to:
(1) File a request to hear a case as a class appeal or any opposition thereto (§ 1201.27);
(2) Serve a subpoena (§ 1201.83);
(3) File a pleading with the Special Panel (§ 1201.137);
(4) File a pleading that contains Sensitive Security Information (SSI) (49 CFR parts 15 and 1520);
(5) File a pleading that contains classified information (32 CFR part 2001); or
(6) File a request to participate as an amicus curiae or file a brief as amicus curiae pursuant to § 1201.34 of this part.
(d) Internet is sole venue for electronic filing. Following the instructions at e-Appeal Online, the MSPB’s e-Appeal site (https://e-appeal.mspb.gov), is the only method allowed for filing electronic pleadings with the MSPB. The MSPB will not accept pleadings filed by electronic mail (e-mail).
(e) Registration as an e-filer. (1) Registration as an e-filer constitutes consent to accept electronic service of pleadings filed by other registered e-filers and documents issued by the MSPB. Except when filing a new appeal within the MSPB’s appellate jurisdiction (§ 1201.3), no party or representative may file an electronic pleading with the MSPB unless he or she has registered with the MSPB as an e-filer.
(2) With the exception of a designation of a representative by a party who is an individual, the exclusive means for a party or representative to register as an e-filer during an MSPB proceeding is to follow the instructions at e-Appeal Online (https://e-appeal.mspb.gov).
(3) When a party who is an individual is represented, the party and the representative can make separate determinations whether to register as an e-filer. For example, an appellant may file and receive pleadings and MSPB documents by non-electronic means, even though his or her representative has registered as an e-filer. When a party has more than one representative, however, all representatives must choose the same method of service.
(4) A party or representative may withdraw his or her registration as an e-filer. Such withdrawal means that, effective upon the MSPB’s receipt of this withdrawal, pleadings and MSPB documents will no longer be served on that person in electronic form. A withdrawal of registration as an e-filer may be filed at e-Appeal Online, in which case service is governed by paragraph (j) of this section, or by non-electronic means, in which case service is governed by § 1201.26(b).
(5) Registration as an e-filer applies only to a single MSPB appeal or proceeding. If an appeal is dismissed without prejudice, however, and is later refiled, an election of e-filing status will remain in effect. An election of e-filing status will also remain in effect for purposes of filing a petition for enforcement under Subpart F of this part, or filing a motion for an attorney fee award or compensatory or consequential damages under Subpart H of this Part.
(6) Each e-filer must notify the MSPB and other participants of any change in his or her e-mail address. When done via e-Appeal Online, such notification is done by selecting the “Pleading” option.
(f) e-Filing not mandatory for e-filers. A party or representative who has registered as an e-filer may file any pleading by non-electronic means, i.e., via postal mail, fax, or personal or commercial delivery.
(g) Form of electronic pleadings – (1) Options for e-filing. An appellant or representative using e-Appeal Online to file a new appeal within the MSPB’s appellate jurisdiction (§ 1201.3) must complete the structured interview at that site (https://e-appeal.mspb.gov). For all other pleadings, the e-filer has the option of uploading an electronic file or entering the text of the pleading online. Regardless of the means of filing a particular pleading, the e-filer will be allowed to submit supporting documentation such as attachments, in either electronic or paper form, as described in paragraphs (g)(2), (g)(3), and (h) of this section.
(2) Electronic formats allowed. The MSPB will accept numerous electronic formats, including word-processing and spreadsheet formats, Portable Document Format (PDF), and image files (files created by scanning). A list of formats allowed can be found at e-Appeal Online. All electronic documents must be formatted so that they will print on standard 8
(3) Requirements for pleadings with 3 or more electronic attachments. An e-filer who uploads 3 or more supporting documents, in addition to the document that constitutes the primary pleading, must identify each attachment, either by filling out the table for such attachments at e-Appeal Online, or by uploading the supporting documents in the form of one or more PDF files in which each attachment is bookmarked. Each attachment must be designated with a brief descriptive label, which will include exhibit numbers or letters where appropriate or required, e.g., “Exh. 4b, Decision Notice.”
(h) Hybrid pleadings that include both electronic and paper documents. An e-filer may file a hybrid pleading in which part of the pleading is submitted electronically, and part of the pleading consists of one or more paper documents filed by non-electronic means. All components of a hybrid pleading are subject to applicable time limits. If one or more parts of a hybrid pleading are untimely filed, the judge or the Clerk may reject the untimely part or parts while accepting timely filed parts of the same pleading.
(i) Repository at e-Appeal Online. All notices, orders, decisions, and other documents issued by the MSPB, as well as all pleadings filed via e-Appeal Online, will be made available to parties and their representatives for viewing and downloading at the Repository at e-Appeal Online. In addition, most pleadings filed at the petition for review stage of adjudication, and some pleadings filed at the regional office level, will be available at the Repository. Also available at the Repository will be an electronic “docket sheet” listing all documents issued by the MSPB to the parties, as well as all pleadings filed by the parties, including those pleadings that are not available for viewing and downloading in electronic form. Access to appeal documents at the Repository will be limited to the parties and representatives of the appeals in which they were filed.
(j) Service of electronic pleadings and MSPB documents. (1) When MSPB documents are issued, e-mail messages will be sent to e-filers that notify them of the issuance and that contain links to the Repository where the documents can be viewed and downloaded. Paper copies of these documents will not ordinarily be served on e-filers. Pleadings submitted via e-Appeal Online will be available to parties and representatives at the e-Appeal Online Repository, and the MSPB will send e-mail messages to other e-filers notifying them of each pleading, with a link to the Repository. When using e-Appeal Online to file a pleading, e-filers will be notified of all documents that must be served by non-electronic means, and they must certify that they will serve all such documents no later than the first business day after the electronic submission.
(2) Delivery of e-mail can encounter a number of failure points. If the MSPB is advised of non-delivery, it will attempt to redeliver and, if that is unsuccessful, will deliver by postal mail or other means. E-filers are responsible for ensuring that e-mail from @mspb.gov is not blocked by filters.
(3) E-filers are responsible for monitoring case activity at the Repository at e-Appeal Online to ensure that they have received all case-related documents.
(k) Documents requiring a signature. Electronic documents filed by a party who has registered as an e-filer pursuant to this section shall be deemed to be signed for purposes of any regulation in part 1201, 1203, 1208, or 1209 of this chapter that requires a signature.
(l) Affidavits and declarations made under penalty of perjury. Registered e-filers may submit electronic pleadings in the form of declarations made under penalty of perjury under 28 U.S.C. 1746, as described in Appendix IV to this part. If the declarant is someone other than the e-filer, a physically signed affidavit or declaration should be uploaded as an image file, or submitted separately as a non-electronic document under paragraph (h) of this section.
(m) Date electronic documents are filed and served. (1) As provided in § 1201.4(l) of this part, the date of filing for pleadings filed via e-Appeal Online is the date of electronic submission. All pleadings filed via e-Appeal Online are time stamped with Eastern Time, but the timeliness of a pleading will be determined based on the time zone from which the pleading was submitted. For example, a pleading filed at 11 p.m. Pacific Time on August 20 will be stamped by e-Appeal Online as being filed at 2 a.m. Eastern Time on August 21. However, if the pleading was required to be filed with the Washington Regional Office (in the Eastern Time Zone) on August 20, it would be considered timely, as it was submitted prior to midnight Pacific Time on August 20.
(2) MSPB documents served electronically on registered e-filers are deemed received on the date of electronic submission.
(n) Authority of a judge or the Clerk to regulate e-filing. (1) In the event that the MSPB or any party encounters difficulties filing, serving, or receiving electronic documents, the judge or the Clerk of the Board may order one or more parties to cease filing pleadings by e-filing, cease serving documents in electronic form, or take both these actions. In such instances, filing and service shall be undertaken in accordance with § 1201.26. The authority to order the cessation of the use of electronic filing may be for a particular submission, for a particular time frame, or for the duration of the pendency of a case.
(2) A judge or the Clerk of the Board may require that any document filed electronically be submitted in non-electronic form and bear the written signature of the submitter. A party receiving such an order from a judge or the Clerk of the Board shall, within 5 calendar days, serve on the judge or Clerk of the Board by postal mail, by fax, or by commercial or personal delivery a signed, non-electronic copy of the document.
(o) MSPB reserves the right to revert to traditional methods of service. The MSPB may serve documents via traditional means – postal mail, fax, personal or commercial delivery – at its discretion. Parties and their representatives are responsible for ensuring that the MSPB always has their current postal mailing addresses, even when they have registered as e-filers.
(p)(1) Except as provided in paragraphs (p)(2) and (3) of this section, all pleadings (including the initial appeal) except those containing classified information or Sensitive Security Information filed with the Washington Regional Office (WRO) and the Denver Field Office (DEFO) by agencies or attorneys must be e-filed. Agencies and attorneys in proceedings in the WRO and the DEFO must register as e-filers pursuant to paragraph (e) of this section.
(2) Agencies or attorneys who believe that e-filing would create an undue burden on their operations may request an exemption from the administrative judge for a specific appeal and/or pleading. Such a request shall include a specific and detailed explanation why e-filing would create an undue burden.
(3) Except in unusual circumstances, exemptions granted under this section shall apply only to pleadings that include scanned material. All other pleadings except those containing classified information or Sensitive Security Information must be e-filed. The administrative judge may periodically revisit the need for an exemption granted under this subsection, and revoke the exemption as appropriate.
Appeal of Agency Action; Pleadings
§ 1201.21 Notice of appeal rights.
When an agency issues a decision notice to an employee on a matter that is appealable to the Board, the agency must provide the employee with the following:
(a) Notice of the time limits for appealing to the Board, the requirements of § 1201.22(c), and the address of the appropriate Board office for filing the appeal;
(b) A copy, or access to a copy, of the Board’s regulations;
(c) A copy, or access to a copy, of the MSPB appeal form available at the Board’s Web site (http://www.mspb.gov), and
(d) Notice of any right the employee has to file a grievance or seek corrective action under subchapters II and III of 5 U.S.C. chapter 12, including:
(1) Whether the election of any applicable grievance procedure will result in waiver of the employee’s right to file an appeal with the Board;
(2) Whether both an appeal to the Board and a grievance may be filed on the same matter and, if so, the circumstances under which proceeding with one will preclude proceeding with the other, and specific notice that filing a grievance will not extend the time limit for filing an appeal with the Board;
(3) Whether there is any right to request Board review of a final decision on a grievance in accordance with § 1201.155 of this part; and
(4) The effect of any election under 5 U.S.C. 7121(g), including the effect that seeking corrective action under subchapters II and III of 5 U.S.C. chapter 12 will have on the employee’s appeal rights before the Board.
(e) Notice of any right the employee has to file a complaint with the Equal Employment Opportunity Commission or to grieve allegations of unlawful discrimination, consistent with the provisions of 5 U.S.C. 7121(d) and 29 CFR 1614.301 and 1614.302.
(f) The name or title and contact information for the agency official to whom the Board should send the Acknowledgment Order and copy of the appeal in the event the employee files an appeal with the Board. Contact information should include the official’s mailing address, email address, telephone and fax numbers.
§ 1201.22 Filing an appeal and responses to appeals.
(a) Place of filing. Appeals, and responses to those appeals, must be filed with the appropriate Board regional or field office. See § 1201.4(d) of this part.
(b) Time of filing. (1) Except as provided in paragraph (b)(2) of this section, an appeal must be filed no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant’s receipt of the agency’s decision, whichever is later. Where an appellant and an agency mutually agree in writing to attempt to resolve their dispute through an alternative dispute resolution process prior to the timely filing of an appeal, however, the time limit for filing the appeal is extended by an additional 30 days – for a total of 60 days. A response to an appeal must be filed within 20 days of the date of the Board’s acknowledgment order. The time for filing a submission under this section is computed in accordance with § 1201.23 of this part.
(2) The time limit prescribed by paragraph (b)(1) of this section for filing an appeal does not apply where a law or regulation establishes a different time limit or where there is no applicable time limit. No time limit applies to appeals under the Uniformed Services Employment and Reemployment Rights Act (Pub. L. 103-353), as amended; see part 1208 of this title. See part 1208 of this title for the statutory filing time limits applicable to appeals under the Veterans Employment Opportunities Act (Pub. L. 105-339). See part 1209 of this title for the statutory filing time limits applicable to whistleblower appeals and stay requests.
(3) An appellant is responsible for keeping the agency informed of his or her current home address for purposes of receiving the agency’s decision, and correspondence which is properly addressed and sent to the appellant’s address via postal or commercial delivery is presumed to have been duly delivered to the addressee. While such a presumption may be overcome under the circumstances of a particular case, an appellant may not avoid service of a properly addressed and mailed decision by intentional or negligent conduct which frustrates actual service. The appellant may also be deemed to have received the agency’s decision if it was received by a designated representative or a person of suitable age and discretion residing with the appellant. The following examples illustrate the application of this rule:
(c) Timeliness of appeals. If a party does not submit an appeal within the time set by statute, regulation, or order of a judge, it will be dismissed as untimely filed unless a good reason for the delay is shown. The judge will provide the party an opportunity to show why the appeal should not be dismissed as untimely.
(d) Method of filing an appeal. Filing of an appeal must be made with the appropriate Board office by commercial or personal delivery, by facsimile, by mail, or by electronic filing under § 1201.14.
(e) Filing a response. Filing of a response must be made with the appropriate Board office by commercial or personal delivery, by facsimile, by mail, or by electronic filing under § 1201.14.
§ 1201.23 Computation of time.
In computing the number of days allowed for complying with any deadline, the first day counted is the day after the event from which the time period begins to run. If the date that ordinarily would be the last day for filing falls on a Saturday, Sunday, or Federal holiday, the filing period will include the first workday after that date. Unless a different deadline is specified by the Board or its designee, 5 days are added to a party’s deadline for responding to a document served on the party by mail.
§ 1201.24 Content of an appeal; right to hearing.
(a) Content. Only an appellant, his or her designated representative, or a party properly substituted under § 1201.35 may file an appeal. Appeals may be in any format, including letter form. An appeal may be filed in electronic form provided that the requirements of § 1201.14 have been satisfied. All appeals must contain the following:
(1) The name, address, and telephone number of the appellant, and the name and address of the agency that took the action;
(2) A description of the action the agency took and its effective date;
(3) A request for hearing if the appellant wants one;
(4) A statement of the reasons why the appellant believes the agency action is wrong;
(5) A statement of the action the appellant would like the judge to order;
(6) The name, address, and telephone number of the appellant’s representative, if the appellant has a representative;
(7) Where applicable, a copy of the notice of proposed action, the agency decision being appealed and, if available, the SF-50 or similar notice of personnel action. No other attachments should be included with the appeal, as the agency will be submitting the documents required by 1201.25 of this part, and there will be several opportunities to submit evidence and argument after the appeal is filed. An appellant should not miss the deadline for filing merely because he or she does not currently have all of the documents specified in this section.
(8) A statement telling whether the appellant or anyone acting on his or her behalf has filed a grievance or a formal discrimination complaint with any agency regarding this matter; and
(9) The signature of the appellant or, if the appellant has a representative, of the representative. If the appeal is electronically filed, compliance with § 1201.14 and the directions at the Board’s e-Appeal site (https://e-appeal.mspb.gov) satisfy the signature requirement.
(b) An appellant may raise a claim or defense not included in the appeal at any time before the end of the conference(s) held to define the issues in the case. An appellant may not raise a new claim or defense after that time, except for good cause shown. However, a claim or defense not included in the appeal may be excluded if a party shows that including it would result in undue prejudice.
(c) Use of Board form or electronic filing. An appellant may comply with paragraph (a) of this section, and with § 1201.31, by completing MSPB Form 185, or by completing all requests for information marked as required at the e-Appeal site (https://e-appeal.mspb.gov). MSPB Form 185 can be accessed at the Board’s Web site (http://www.mspb.gov).
(d) Right to hearing. An appellant generally has a right to a hearing on the merits if the appeal has been timely filed and the Board has jurisdiction over the appeal.
(e) Timely request. The appellant must submit any request for a hearing with the appeal, or within any other time period the judge sets for that purpose. If the appellant does not make a timely request for a hearing, the right to a hearing is waived.
§ 1201.25 Content of agency response.
The agency response to an appeal must contain the following:
(a) The name of the appellant and of the agency whose action the appellant is appealing;
(b) A statement identifying the agency action taken against the appellant and stating the reasons for taking the action;
(c) All documents contained in the agency record of the action;
(d) Designation of and signature by the authorized agency representative; and
(e) Any other documents or responses requested by the Board.
§ 1201.26 Number of pleadings, service, and response.
(a) Number. The appellant must file two copies of both the appeal and all attachments with the appropriate Board office, unless the appellant files an appeal in electronic form under § 1201.14.
(b) Service – (1) Service by the Board. The appropriate office of the Board will mail a copy of the appeal to each party to the proceeding other than the appellant. It will attach to each copy a service list, consisting of a list of the names and addresses of the parties to the proceeding or their designated representatives.
(2) Service by the parties. The parties must serve on each other one copy of each pleading, as defined by § 1201.4(b), and all documents submitted with it, except for the appeal. They may do so by mail, by facsimile, by commercial or personal delivery, or by electronic filing in accordance with § 1201.14. Documents and pleadings must be served upon each party and each representative. A certificate of service stating how and when service was made must accompany each pleading. The parties must notify the appropriate Board office and one another, in writing, of any changes in the names, or addresses on the service list.
(c) Paper size. Pleadings and attachments must be filed on 8
§ 1201.27 Class appeals.
(a) Appeal. One or more employees may file an appeal as representatives of a class of employees. The judge will hear the case as a class appeal if he or she finds that a class appeal is the fairest and most efficient way to adjudicate the appeal and that the representative of the parties will adequately protect the interests of all parties. When a class appeal is filed, the time from the filing date until the judge issues his or her decision under paragraph (b) of this section is not counted in computing the time limit for individual members of the potential class to file individual appeals.
(b) Procedure. The judge will consider the appellant’s request and any opposition to that request, and will issue an order within 30 days after the appeal is filed stating whether the appeal is to be heard as a class appeal. If the judge denies the request, the appellants affected by the decision may file individual appeals within 30 days after the date of receipt of the decision denying the request to be heard as a class appeal. Each individual appellant is responsible for either filing an individual appeal within the original time limit, or keeping informed of the status of a class appeal and, if the class appeal is denied, filing an individual appeal within the additional 35-day period.
(c) Standards. In determining whether it is appropriate to treat an appeal as a class action, the judge will be guided but not controlled by the applicable provisions of the Federal Rules of Civil Procedure.
(d) Electronic filing. A request to hear a case as a class appeal and any opposition thereto may not be filed in electronic form. Subsequent pleadings may be filed and served in electronic form, provided that the requirements of § 1201.14 are satisfied.
§ 1201.28 Case suspension procedures.
(a) Suspension period. The judge may issue an order suspending the processing of an appeal for up to 30 days. The judge may grant a second order suspending the processing of an appeal for up to an additional 30 days.
(b) Early termination of suspension period. The administrative judge may terminate the suspension period upon joint request of the parties or where the parties request the judge’s assistance and the judge’s involvement is likely to be extensive.
(c) Termination of suspension period. If the final day of any suspension period falls on a day on which the Board is closed for business, adjudication shall resume as of the first business day following the expiration of the period.
(d) Mediation. Whenever an appeal is accepted into the Board’s Mediation Appeals Program (MAP), the processing of the appeal and all deadlines are suspended until the mediator returns the case to the judge. This provision does not apply where the parties enter into other forms of alternative dispute resolution.
§ 1201.29 Dismissal without prejudice.
(a) In general. Dismissal without prejudice is a procedural option that allows for the dismissal and subsequent refiling of an appeal.
(b) Procedure. Dismissal without prejudice may be granted on the judge’s own motion or upon request by either party. The decision whether to dismiss an appeal without prejudice is committed to the sound discretion of the judge, and may be granted when the interests of fairness, due process, and administrative efficiency outweigh any prejudice to either party.
(c) Refiling. Except in certain USERRA appeals under Part 1208 involving the use of military leave, a decision dismissing an appeal without prejudice will include a date certain by which the appeal must be refiled. The judge will determine whether the appeal must be refiled by the appellant or whether it will be automatically refiled by the judge as of a date certain. When a dismissal without prejudice is issued over the objection of the appellant, the appeal will be automatically refiled as of a date certain.
(d) Waiver. When a dismissed appeal must be refiled by the appellant, requests for waiver of a late filing based upon good cause will be liberally construed.
Parties, Representatives, and Witnesses
§ 1201.31 Representatives.
(a) Procedure. A party to an appeal may be represented in any matter related to the appeal. Parties may designate a representative, revoke such a designation, and change such a designation in a signed submission, submitted as a pleading.
(b) A party may choose any representative as long as that person is willing and available to serve. The other party or parties may challenge the designation, however, on the ground that it involves a conflict of interest or a conflict of position. Any party who challenges the designation must do so by filing a motion with the judge within 15 days after the date of service of the notice of designation or 15 days after a party becomes aware of the conflict. The judge will rule on the motion before considering the merits of the appeal. These procedures apply equally to each designation of representative, regardless of whether the representative was the first one designated by a party or a subsequently designated representative. If a representative is disqualified, the judge will give the party whose representative was disqualified a reasonable time to obtain another one.
(c) The judge, on his or her own motion, may disqualify a party’s representative on the grounds described in paragraph (b) of this section.
(d) As set forth in paragraphs (d) and (e) of § 1201.43 of this part, a judge may exclude a representative from all or any portion of the proceeding before him or her for contumacious conduct or conduct prejudicial to the administration of justice.
§ 1201.32 Witnesses; right to representation.
Witnesses have the right to be represented when testifying. The representative of a nonparty witness has no right to examine the witness at the hearing or otherwise participate in the development of testimony.
§ 1201.33 Federal witnesses.
(a) Every Federal agency or corporation, including nonparties, must make its employees or personnel available to furnish sworn statements or to appear at a deposition or hearing when ordered by the judge to do so. When providing those statements or appearing at a deposition or at the hearing, Federal employee witnesses will be in official duty status (i.e., entitled to pay and benefits including travel and per diem, where appropriate). When a desired witness is employed by an agency who is not a party to the Board proceeding, the requesting party may avail itself of the provisions of sections 1201.81 to 1201.85 of this part regarding subpoenas to ensure the attendance of the witness. In addition, the Board and the parties will implement this provision, to the maximum extent possible, to avoid conflict with other regulations governing the production of Federal employees in matters in litigation.
(b) A Federal employee who is denied the official time required by paragraph (a) of this section may file a written request that the judge order the employing agency to provide such official time. The judge will act on such a request promptly and, where warranted, will order the agency to comply with the requirements of paragraph (a) of this section.
(c) An order obtained under paragraph (b) of this section may be enforced as provided under subpart F of this part.
§ 1201.34 Intervenors and amicus curiae.
(a) Explanation of Intervention. Intervenors are organizations or persons who want to participate in a proceeding because they believe the proceeding, or its outcome, may affect their rights or duties. Intervenors as a “matter of right” are those parties who have a statutory right to participate. “Permissive” intervenors are those parties who may be permitted to participate if the proceeding will affect them directly and if intervention is otherwise appropriate under law. A request to intervene may be made by motion filed with the judge.
(b) Intervenors as a matter of right. (1) The Director of the Office of Personnel Management may intervene as a matter of right under 5 U.S.C. 7701(d)(1). The motion to intervene must be filed at the earliest practicable time.
(2)(i) Except as provided in paragraph (b)(2)(ii) of this section, the Special Counsel may intervene as a matter of right under 5 U.S.C. 1212(c). The motion to intervene must be filed at the earliest practicable time.
(ii) The Special Counsel may not intervene in an action brought by an individual under 5 U.S.C. 1221, or in an appeal brought by an individual under 5 U.S.C. 7701, without the consent of that individual. The Special Counsel must present evidence that the individual has consented to the intervention at the time the motion to intervene is filed.
(c) Permissive intervenors. (1) Any person, organization or agency may, by motion, ask the judge for permission to intervene. The motion must explain the reason why the person, organization or agency should be permitted to intervene.
(2) A motion for permission to intervene will be granted where the requester will be affected directly by the outcome of the proceeding. Any person alleged to have committed a prohibited personnel practice under 5 U.S.C. 2302(b) may request permission to intervene. A judge’s denial of a motion for permissive intervention may be appealed to the Board under § 1201.91 of this part.
(d) Role of intervenors. Intervenors have the same rights and duties as parties, with the following two exceptions:
(1) Intervenors do not have an independent right to a hearing; and
(2) Permissive intervenors may participate only on the issues affecting them. The judge is responsible for determining the issues on which permissive intervenors may participate.
(e) Amicus curiae. (1) An amicus curiae is a person or organization who, although not a party to an appeal, gives advice or suggestions by filing a brief with the judge or the Board regarding an appeal. Any person or organization, including those who do not qualify as intervenors, may request permission to file an amicus brief. The Board may solicit amicus briefs on its own motion.
(2) A request to file an amicus curiae brief must include a statement of the person’s or organization’s interest in the appeal and how the brief will be relevant to the issues involved.
(3) The request may be granted, in the discretion of the judge or the Board, if the person or organization has a legitimate interest in the proceedings, and such participation will not unduly delay the outcome and may contribute materially to the proper disposition thereof.
(4) The amicus curiae shall submit its brief within the time limits set by the judge or the Board and must comply with any further orders by the judge or the Board.
(5) An amicus curiae is not a party to the proceeding and may not participate in any way in the conduct of the hearing, including the presentation of evidence or the examination of witnesses. The Board, in its discretion, may invite an amicus curiae to participate in oral argument in proceedings in which oral argument is scheduled.
§ 1201.35 Substituting parties.
(a) If an appellant dies or is otherwise unable to pursue the appeal, the processing of the appeal will only be completed upon substitution of a proper party. Substitution will not be permitted where the interests of the appellant have terminated because of the appellant’s death or other disability.
(b) The representative or proper party must file a motion for substitution within 90 days after the death or other disabling event, except for good cause shown.
(c) In the absence of a timely substitution of a party, the processing of the appeal may continue if the interests of the proper party will not be prejudiced.
§ 1201.36 Consolidating and joining appeals.
(a) Explanation. (1) Consolidation occurs when the appeals of two or more parties are united for consideration because they contain identical or similar issues. For example, individual appeals rising from a single reduction in force might be consolidated.
(2) Joinder occurs when one person has filed two or more appeals and they are united for consideration. For example, a judge might join an appeal challenging a 30-day suspension with a pending appeal challenging a subsequent removal if the same appellant filed both appeals.
(b) Action by judge. A judge may consolidate or join cases on his or her own motion or on the motion of a party if doing so would:
(1) Expedite processing of the cases; and
(2) Not adversely affect the interests of the parties.
(c) Any objection to a motion for consolidation or joinder must be filed within 10 days of the date of service of the motion.
§ 1201.37 Witness fees.
(a) Federal employees. Employees of a Federal agency or corporation testifying in any Board proceeding or making a statement for the record will be in official duty status and will not receive witness fees.
(b) Other witnesses. Other witnesses (whether appearing voluntarily or under subpoena) shall be paid the same fee and mileage allowances which are paid subpoenaed witnesses in the courts of the United States.
(c) Payment of witness fees and travel costs. The party requesting the presence of a witness must pay that witness’ fees. Those fees must be paid or offered to the witness at the time the subpoena is served, or, if the witness appears voluntarily, at the time of appearance. A Federal agency or corporation is not required to pay or offer witness fees in advance.
(d) A witness who is denied the witness fees and travel costs required by paragraphs (b) and (c) of this section may file a written request that the judge order the party who requested the presence of the witness to provide such fees and travel costs. The judge will act on such a request promptly and, where warranted, will order the party to comply with the requirements of paragraphs (b) and (c) of this section.
(e) An order obtained under paragraph (d) of this section may be enforced as provided under subpart F of this part.
Judges
§ 1201.41 Judges.
(a) Exercise of authority. Judges may exercise authority as provided in paragraphs (b) and (c) of this section on their own motion or on the motion of a party, as appropriate.
(b) Authority. Judges will conduct fair and impartial hearings and will issue timely and clear decisions based on statutes and legal precedents. They will have all powers necessary to that end unless those powers are otherwise limited by law. Judges’ powers include, but are not limited to, the authority to:
(1) Administer oaths and affirmations;
(2) Issue subpoenas under § 1201.81 of this part;
(3) Rule on offers of proof and receive relevant evidence;
(4) Rule on discovery motions under § 1201.73 of this part;
(5) After notice to the parties, order a hearing on his or her own initiative if the judge determines that a hearing is necessary:
(i) To resolve an important issue of credibility;
(ii) To ensure that the record on significant issues is fully developed; or
(iii) To otherwise ensure a fair and just adjudication of the case;
(6) Convene a hearing as appropriate, regulate the course of the hearing, maintain decorum, and exclude any disruptive persons from the hearing;
(7) Exclude any person from all or any part of the proceeding before him or her as provided under § 1201.31(d) of this part;
(8) Rule on all motions, witness and exhibit lists, and proposed findings;
(9) Require the parties to file memoranda of law and to present oral argument with respect to any question of law;
(10) Order the production of evidence and the appearance of witnesses whose testimony would be relevant, material, and nonrepetitious;
(11) Impose sanctions as provided under § 1201.43 of this part;
(12) Hold prehearing conferences for the settlement and simplification of issues;
(13) Require that all persons who can be identified from the record as being clearly and directly affected by a pending retirement-related case be notified of the appeal and of their right to request intervention so that their interests can be considered in the adjudication;
(14) Issue any order that may be necessary to protect a witness or other individual from harassment and provide for enforcement of such order in accordance with subpart F;
(15) Issue initial decisions; and
(16) Determine, in decisions in which the appellant is the prevailing party, whether the granting of interim relief is appropriate.
(c) Settlement – (1) Settlement discussion. The judge may initiate attempts to settle the appeal informally at any time. The parties may agree to waive the prohibitions against ex parte communications during settlement discussions, and they may agree to any limits on the waiver.
(2) Agreement. If the parties agree to settle their dispute, the settlement agreement is the final and binding resolution of the appeal, and the judge will dismiss the appeal with prejudice.
(i) If the parties offer the agreement for inclusion in the record, and if the judge approves the agreement, it will be made a part of the record, and the Board will retain jurisdiction to ensure compliance with the agreement.
(ii) If the agreement is not entered into the record, the Board will not retain jurisdiction to ensure compliance.
§ 1201.42 Disqualifying a judge.
(a) If a judge considers himself or herself disqualified, he or she will withdraw from the case, state on the record the reasons for doing so, and another judge will be promptly assigned.
(b) A party may file a motion asking the judge to withdraw on the basis of personal bias or other disqualification. This motion must be filed as soon as the party has reason to believe there is a basis for disqualification. The reasons for the request must be set out in an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.)
(c) If the judge denies the motion, the party requesting withdrawal may request certification of the issue to the Board as an interlocutory appeal under § 1201.91 of this part. Failure to request certification is considered a waiver of the request for withdrawal.
§ 1201.43 Sanctions.
The judge may impose sanctions upon the parties as necessary to serve the ends of justice. This authority covers, but is not limited to, the circumstances set forth in paragraphs (a), (b), (c), (d), and (e) of this section. Before imposing a sanction, the judge shall provide appropriate prior warning, allow a response to the actual or proposed sanction when feasible, and document the reasons for any resulting sanction in the record.
(a) Failure to comply with an order. When a party fails to comply with an order, the judge may:
(1) Draw an inference in favor of the requesting party with regard to the information sought;
(2) Prohibit the party failing to comply with the order from introducing evidence concerning the information sought, or from otherwise relying upon testimony related to that information;
(3) Permit the requesting party to introduce secondary evidence concerning the information sought; and
(4) Eliminate from consideration any appropriate part of the pleadings or other submissions of the party that fails to comply with the order.
(b) Failure to prosecute or defend appeal. If a party fails to prosecute or defend an appeal, the judge may dismiss the appeal with prejudice or rule in favor of the appellant.
(c) Failure to make timely filing. The judge may refuse to consider any motion or other pleading that is not filed in a timely fashion in compliance with this subpart.
(d) Exclusion of a representative or other person. A judge may exclude or limit the participation of a representative or other person in the case for contumacious conduct or conduct prejudicial to the administration of justice. When the judge excludes a party’s representative, the judge will afford the party a reasonable time to obtain another representative before proceeding with the case.
(e) Cancellation, suspension, or termination of hearing. A judge may cancel a scheduled hearing, or suspend or terminate a hearing in progress, for contumacious conduct or conduct prejudicial to the administration of justice on the part of the appellant or the appellant’s representative. If the judge suspends a hearing, the parties must be given notice as to when the hearing will resume. If the judge cancels or terminates a hearing, the judge must set a reasonable time during which the record will be kept open for receipt of written submissions.
Hearings
§ 1201.51 Scheduling the hearing.
(a) The hearing will be scheduled not earlier than 15 days after the date of the hearing notice unless the parties agree to an earlier date. The agency, upon request of the judge, must provide appropriate hearing space.
(b) The judge may change the time, date, or place of the hearing, or suspend, adjourn, or continue the hearing. The change will not require the 15-day notice provided in paragraph (a) of this section.
(c) Either party may file a motion for postponement of the hearing. The motion must be made in writing and must either be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.) The affidavit or sworn statement must describe the reasons for the request. The judge will grant the request for postponement only upon a showing of good cause.
(d) The Board has established certain approved hearing locations, which are listed on the Board’s public Web site (www.mspb.gov). The judge will advise parties of these hearing sites as appropriate. Parties, for good cause, may file motions requesting a different hearing location. Rulings on those motions will be based on a showing that a different location will be more advantageous to all parties and to the Board.
§ 1201.52 Public hearings.
(a) Closing the hearing. Hearings are generally open to the public; however, the judge may order a hearing or any part of a hearing closed when doing so would be in the best interests of a party, a witness, the public, or any other person affected by the proceeding. Any order closing the hearing will set out the reasons for the judge’s decision. Any objections to the order will be made a part of the record.
(b) Electronic devices. Absent express approval from the judge, no two-way communications devices may be operated and/or powered on in the hearing room; all cell phones, text devices, and all other two-way communications devices shall be powered off in the hearing room. Further, no cameras, recording devices, and/or transmitting devices may be operated, operational, and/or powered on in the hearing room without the consent of the judge.
§ 1201.53 Record of proceedings.
(a) Recordings. A recording of the hearing is generally prepared by a court reporter, under the judge’s guidance. Such a recording is included with the Board’s copy of the appeal file and serves as the official hearing record. Judges may prepare recordings in some hearings, such as those conducted telephonically.
(b) Transcripts. A “transcript” refers not only to printed copies of the hearing testimony, but also to electronic versions of such documents. Along with recordings, a transcript prepared by the court reporter is accepted by the Board as the official hearing record. Any party may request that the court reporter prepare a full or partial transcript, at the requesting party’s expense. Judges do not prepare transcripts.
(c) Copies. Copies of recordings or existing transcripts will be provided upon request to parties free of charge. Such requests should be made in writing to the adjudicating regional or field office, or to the Clerk of the Board, as appropriate. Nonparties may request a copy of a hearing recording or existing transcript under the Freedom of Information Act (FOIA) and Part 1204 of the Board’s regulations. A nonparty may request a copy by writing to the appropriate Regional Director, the Chief Administrative Judge of the appropriate MSPB Field Office, or to the Clerk of the Board at MSPB headquarters in Washington, DC, as appropriate. Nonparties may also make FOIA requests online at https://foia.mspb.gov.
(d) Corrections to transcript. Any discrepancy between the transcript and the recording shall be resolved by the judge or the Clerk of the Board, as appropriate. Corrections to the official transcript may be made on motion by a party or on the judge’s own motion or by the Clerk of the Board, as appropriate. Motions for corrections must be filed within 10 days after the receipt of a transcript. Corrections of the official transcript will be made only when substantive errors are found by the judge or by the Clerk of the Board, as appropriate.
(e) Official record. Hearing exhibits and pleadings that have been accepted into the record, the official hearing record, if a hearing is held, and all orders and decisions of the judge and the Board, make up the official record of the case. Other than the Board’s decisions, the official record is not available for public inspection and copying. The official record is, however, subject to requests under both the Freedom of Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 552a) pursuant to the procedures contained in 5 CFR parts 1204 and 1205.
§ 1201.55 Motions.
(a) Form. All motions, except those made during a prehearing conference or a hearing, must be in writing. All motions must include a statement of the reasons supporting them. Written motions must be filed with the judge or the Board, as appropriate, and must be served upon all other parties in accordance with § 1201.26(b)(2) of this part. A party filing a motion for extension of time, a motion for postponement of a hearing, or any other procedural motion must first contact the other party to determine whether there is any objection to the motion, and must state in the motion whether the other party has an objection.
(b) Objection. Unless the judge provides otherwise, any objection to a written motion must be filed within 10 days from the date of service of the motion. Judges, in their discretion, may grant or deny motions for extensions of time to file pleadings without providing any opportunity to respond to the motions.
(c) Motions for extension of time. Motions for extension of time will be granted only on a showing of good cause.
(d) Motions for protective orders. A motion for an order under 5 U.S.C. 1204(e)(1)(B) to protect a witness or other individual from harassment must be filed as early in the proceeding as practicable. The party seeking a protective order must include a concise statement of reasons justifying the motion, together with any relevant documentary evidence. An agency, other than the Office of Special Counsel, may not request such an order with respect to an investigation by the Special Counsel during the Special Counsel’s investigation. An order issued under this paragraph may be enforced in the same manner as provided under subpart F for Board final decisions and orders.
§ 1201.56 Burden and degree of proof.
(a) Applicability. This section does not apply to the following types of appeals which are covered by § 1201.57:
(1) An individual right of action appeal under the Whistleblower Protection Act, 5 U.S.C. 1221;
(2) An appeal under the Veterans Employment Opportunities Act, 5 U.S.C. 3330a(d);
(3) An appeal under the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4324, in which the appellant alleges discrimination or retaliation in violation of 38 U.S.C. 4311; and
(4) An appeal under 5 CFR 353.304, in which the appellant alleges a failure to restore, improper restoration of, or failure to return following a leave of absence.
(b) Burden and degree of proof – (1) Agency. Under 5 U.S.C. 7701(c)(1), and subject to the exceptions stated in paragraph (c) of this section, the agency bears the burden of proof and its action must be sustained only if:
(i) It is brought under 5 U.S.C. 4303 or 5 U.S.C. 5335 and is supported by substantial evidence (as defined in § 1201.4(p)); or
(ii) It is brought under any other provision of law or regulation and is supported by a preponderance of the evidence (as defined in § 1201.4(q)).
(2) Appellant. (i) The appellant has the burden of proof, by a preponderance of the evidence (as defined in § 1201.4(q)), with respect to:
(A) Issues of jurisdiction, except for cases in which the appellant asserts a violation of his right to reemployment following military duty under 38 U.S.C. 4312-4314;
(B) The timeliness of the appeal; and
(C) Affirmative defenses.
(ii) In appeals from reconsideration decisions of the Office of Personnel Management (OPM) involving retirement benefits, if the appellant filed the application, the appellant has the burden of proving, by a preponderance of the evidence (as defined in § 1201.4(q)), entitlement to the benefits. Where OPM proves by preponderant evidence an overpayment of benefits, an appellant may prove, by substantial evidence (as defined in § 1201.4(p)), eligibility for waiver or adjustment.
(c) Affirmative defenses of the appellant. Under 5 U.S.C. 7701(c)(2), the Board is required to reverse the action of the agency, even where the agency has met the evidentiary standard stated in paragraph (b) of this section, if the appellant:
(1) Shows harmful error in the application of the agency’s procedures in arriving at its decision (as defined in § 1201.4(r));
(2) Shows that the decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or
(3) Shows that the decision was not in accordance with law.
(d) Administrative judge. The administrative judge will inform the parties of the proof required as to the issues of jurisdiction, the timeliness of the appeal, and affirmative defenses.
§ 1201.57 Establishing jurisdiction in appeals not covered by § 1201.56; burden and degree of proof; scope of review.
(a) Applicability. This section applies to the following types of appeals:
(1) An individual right of action (IRA) appeal under the Whistleblower Protection Act, 5 U.S.C. 1221;
(2) A request for corrective action under the Veterans Employment Opportunities Act (VEOA), 5 U.S.C. 3330a(d);
(3) A request for corrective action under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4324, in which the appellant alleges discrimination or retaliation in violation of 38 U.S.C. 4311; and
(4) An appeal under 5 CFR 353.304, in which an appellant alleges a failure to restore, improper restoration of, or failure to return following a leave of absence (denial of restoration appeal).
(b) Matters that must be supported by nonfrivolous allegations. Except for proving exhaustion of a required statutory complaint process and standing to appeal (paragraphs (c)(1) and (3) of this section), in order to establish jurisdiction, an appellant who initiates an appeal covered by this section must make nonfrivolous allegations (as defined in § 1201.4(s)) with regard to the substantive jurisdictional elements applicable to the particular type of appeal he or she has initiated.
(c) Matters that must be proven by a preponderance of the evidence. An appellant who initiates an appeal covered by this section has the burden of proof, by a preponderance of the evidence (as defined in § 1201.4(q)), on the following matters:
(1) When applicable, exhaustion of a statutory complaint process that is preliminary to an appeal to the Board;
(2) Timeliness of an appeal under 5 CFR 1201.22;
(3) Standing to appeal, when disputed by the agency or questioned by the Board. (An appellant has “standing” when he or she falls within the class of persons who may file an appeal under the law applicable to the appeal.); and
(4) The merits of an appeal, if the appeal is within the Board’s jurisdiction and was timely filed.
(d) Scope of the appeal. Appeals covered by this section are limited in scope. With the exception of denial of restoration appeals, the Board will not consider matters described at 5 U.S.C. 7701(c)(2) in an appeal covered by this section.
(e) Notice of jurisdictional, timeliness, and merits elements. The administrative judge will provide notice to the parties of the specific jurisdictional, timeliness, and merits elements that apply in a particular appeal.
(f) Additional information. For additional information on IRA appeals, the reader should consult 5 CFR part 1209. For additional information on VEOA appeals, the reader should consult 5 CFR part 1208, subparts A & C. For additional information on USERRA appeals, the reader should consult 5 CFR part 1208, subparts A and B.
(g) For additional information on denial of restoration appeals, the reader should consult 5 CFR part 353, subparts A and C.
§ 1201.58 Order of hearing.
(a) In cases in which the agency has taken an action against an employee, the agency will present its case first.
(b) The appellant will proceed first at hearings convened on the issues of:
(1) Jurisdiction;
(2) Timeliness; or
(3) Office of Personnel Management disallowance of retirement benefits, when the appellant applied for those benefits.
(c) The judge may vary the normal order of presenting evidence.
§ 1201.59 Closing the record.
(a) When there is a hearing, the record ordinarily will close at the conclusion of the hearing. When the judge allows the parties to submit argument, briefs, or documents previously identified for introduction into evidence, however, the record will remain open for as much time as the judge grants for that purpose.
(b) If the appellant waives the right to a hearing, the record will close on the date the judge sets as the final date for the receipt or filing of submissions of the parties.
(c) Once the record closes, additional evidence or argument will ordinarily not be accepted unless:
(1) The party submitting it shows that the evidence or argument was not readily available before the record closed; or
(2) It is in rebuttal to new evidence or argument submitted by the other party just before the record closed.
(d) The judge will include in the record any supplemental citations received from the parties or approved corrections of the transcript, if one has been prepared.
Evidence
§ 1201.61 Exclusion of evidence and testimony.
Any evidence and testimony that is offered in the hearing and excluded by the judge will be described, and that description will be made a part of the record.
§ 1201.63 Stipulations.
The parties may stipulate to any matter of fact. The stipulation will satisfy a party’s burden of proving the fact alleged.
§ 1201.64 Official notice.
Official notice is the Board’s or judge’s recognition of certain facts without requiring evidence to be introduced establishing those facts. The judge, on his or her own motion or on the motion of a party, may take official notice of matters of common knowledge or matters that can be verified. The parties may be given an opportunity to object to the taking of official notice. The taking of official notice of any fact satisfies a party’s burden of proving that fact.
Discovery
§ 1201.71 Purpose of discovery.
Proceedings before the Board will be conducted as expeditiously as possible with due regard to the rights of the parties. Discovery is designed to enable a party to obtain relevant information needed to prepare the party’s case. These regulations are intended to provide a simple method of discovery. They will be interpreted and applied so as to avoid delay and to facilitate adjudication of the case. Parties are expected to start and complete discovery with a minimum of Board intervention. Discovery requests and responses thereto are not to be filed in the first instance with the Board. They are only filed with the Board in connection with a motion to compel discovery under 1201.73(c) of this part, with a motion to subpoena discovery under 1201.73(d) of this part, or as substantive evidence to be considered in the appeal.
§ 1201.72 Explanation and scope of discovery.
(a) Explanation. Discovery is the process, apart from the hearing, by which a party may obtain relevant information, including the identification of potential witnesses, from another person or a party, that the other person or party has not otherwise provided. Relevant information includes information that appears reasonably calculated to lead to the discovery of admissible evidence. This information is obtained to assist the parties in preparing and presenting their cases. The Federal Rules of Civil Procedure may be used as a general guide for discovery practices in proceedings before the Board. Those rules, however, are instructive rather than controlling.
(b) Scope. Discovery covers any nonprivileged matter that is relevant to the issues involved in the appeal, including the existence, description, nature, custody, condition, and location of documents or other tangible things, and the identity and location of persons with knowledge of relevant facts. Discovery requests that are directed to nonparties and nonparty Federal agencies and employees are limited to information that appears directly material to the issues involved in the appeal.
(c) Methods. Parties may use one or more of the methods provided under the Federal Rules of Civil Procedure. These methods include written interrogatories to parties, depositions, requests for production of documents or things for inspection or copying, and requests for admission.
(d) Limitations. The judge may limit the frequency or extent of use of the discovery methods permitted by these regulations. Such limitations may be imposed if the judge finds that:
(1) The discovery sought is cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;
(2) The party seeking discovery has had sufficient opportunity by discovery in the action to obtain the information sought; or
(3) The burden or expense of the proposed discovery outweighs its likely benefit.
§ 1201.73 Discovery procedures.
(a) Initiating discovery. A party seeking discovery must start the process by serving a request for discovery on the representative of the party or nonparty, or, if there is no representative, on the party or nonparty themselves. The request for discovery must state the time limit for responding, as prescribed in 1201.73(d) of this part, and must specify the time and place of the taking of the deposition, if applicable. When a party directs a request for discovery to the official or employee of a Federal agency that is a party, the agency must make the officer or employee available on official time to respond to the request and must assist the officer or employee as necessary in providing relevant information that is available to the agency.
(b) Responses to discovery requests. A party or nonparty must answer a discovery request within the time provided under paragraph (d)(2) of this section, either by furnishing to the requesting party the information requested or agreeing to make deponents available to testify within a reasonable time, or by stating an objection to the particular request and the reasons for the objection. Parties and nonparties may respond to discovery requests by electronic mail if authorized by the requesting party.
(c) Motions to compel or issue a subpoena. (1) If a party fails or refuses to respond in full to a discovery request, the requesting party may file a motion to compel discovery. If a nonparty fails or refuses to respond in full to a discovery request, the requesting party may file a motion for the issuance of a subpoena directed to the individual or entity from which the discovery is sought under the procedures described in 1201.81 of this part. The requesting party must serve a copy of the motion on the other party or nonparty. Before filing any motion to compel or issue a subpoena, the moving party shall discuss the anticipated motion with the opposing party or nonparty, and all those involved shall make a good faith effort to resolve the discovery dispute and narrow the areas of disagreement. The motion shall include:
(i) A copy of the original request and a statement showing that the information sought is discoverable under section 1201.72;
(ii) A copy of the response to the request (including the objections to discovery) or, where appropriate, a statement that no response has been received, along with an affidavit or sworn statement under 28 U.S.C. 1746 supporting the statement (See appendix IV to part 1201); and
(iii) A statement that the moving party has discussed or attempted to discuss the anticipated motion with the nonmoving party or nonparty and made a good faith effort to resolve the discovery dispute and narrow the areas of disagreement.
(2) The party or nonparty from whom discovery was sought may respond to the motion to compel or the motion to issue a subpoena within the time limits stated in paragraph (d)(3) of this section.
(d) Time limits. (1) Unless otherwise directed by the judge, parties must serve their initial discovery requests within 30 days after the date on which the judge issues an order to the respondent agency to produce the agency file and response.
(2) A party or nonparty must serve a response to a discovery request promptly, but not later than 20 days after the date of service of the request or order of the judge. Any discovery requests following the initial request must be served within 10 days of the date of service of the prior response, unless the parties are otherwise directed by the judge. Deposition witnesses must give their testimony at the time and place stated in the request for deposition or in the subpoena, unless the parties agree on another time or place.
(3) Any motion for an order to compel or issue a subpoena must be filed with the judge within 10 days of the date of service of objections or, if no response is received, within 10 days after the time limit for response has expired. Any pleading in opposition to a motion to compel or subpoena discovery must be filed with the judge within 10 days of the date of service of the motion.
(4) Discovery must be completed within the time period designated by the judge or, if no such period is designated, no later than the prehearing or close of record conference.
(e) Limits on the number of discovery requests. (1) Absent prior approval by the judge, interrogatories served by parties upon another party or a nonparty may not exceed 25 in number, including all discrete subparts.
(2) Absent prior approval by the judge or agreement by the parties, each party may not take more than 10 depositions.
(3) Requests to exceed the limitations set forth in paragraphs (e)(1) and (e)(2) of this section may be granted at the discretion of the judge. In considering such requests, the judge shall consider the factors identified in § 1201.72(d) of this part.
§ 1201.74 Orders for discovery.
(a) Motion for an order compelling discovery. Motions for orders compelling discovery and motions for the appearance of nonparties must be filed with the judge in accordance with § 1201.73(c)(1) and (d)(3). An administrative judge may deny a motion to compel discovery if a party fails to comply with the requirements of 5 CFR 1201.73(c)(1) and (d)(3).
(b) Content of order. Any order issued will include, where appropriate:
(1) A provision that the person to be deposed must be notified of the time and place of the deposition;
(2) Any conditions or limits concerning the conduct or scope of the proceedings or the subject matter that may be necessary to prevent undue delay or to protect a party or other individual or entity from undue expense, embarrassment, or oppression;
(3) Limits on the time for conducting depositions, answering written interrogatories, or producing documentary evidence; and
(4) Other restrictions upon the discovery process that the judge sets.
(c) Noncompliance. The judge may impose sanctions under § 1201.43 of this part for failure to comply with an order compelling discovery.
§ 1201.75 Taking depositions.
Depositions may be taken by any method agreed upon by the parties. The person providing information is subject to penalties for intentional false statements.
Subpoenas
§ 1201.81 Requests for subpoenas.
(a) Request. Parties who wish to obtain subpoenas that would require the attendance and testimony of witnesses, or subpoenas that would require the production of documents or other evidence under 5 U.S.C. 1204(b)(2)(A), should file their motions for those subpoenas with the judge. The Board has authority under 5 U.S.C. 1204(b)(2)(A) to issue a subpoena requiring the attendance and testimony of any individual regardless of location and for the production of documentary or other evidence from any place in the United States, any territory or possession of the United States, the Commonwealth of Puerto Rico or the District of Columbia. Subpoenas are not ordinarily required to obtain the attendance of Federal employees as witnesses.
(b) Form. Parties requesting subpoenas must file their requests, in writing, with the judge. Each request must identify specifically the books, papers, or testimony desired.
(c) Relevance. The request must be supported by a showing that the evidence sought is directly material to the issues involved in the appeal.
(d) Rulings. Any judge who does not have the authority to issue subpoenas will refer the request to an official with authority to rule on the request, with a recommendation for decision. The official to whom the request is referred will rule on the request promptly. Judges who have the authority to rule on these requests themselves will do so directly.
§ 1201.82 Motions to quash subpoenas.
Any person to whom a subpoena is directed, or any party, may file a motion to quash or limit the subpoena. The motion must be filed with the judge, and it must include the reasons why compliance with the subpoena should not be required or the reasons why the subpoena’s scope should be limited.
§ 1201.83 Serving subpoenas.
(a) Any person who is at least 18 years of age and who is not a party to the appeal may serve a subpoena. The means prescribed by applicable state law are sufficient. The party who requested the subpoena, and to whom the subpoena has been issued, is responsible for serving the subpoena.
(b) A subpoena directed to an individual outside the territorial jurisdiction of any court of the United States may be served in the manner described by the Federal Rules of Civil Procedure for service of a subpoena in a foreign country.
§ 1201.84 Proof of service.
The person who has served the subpoena must certify that he or she did so:
(a) By delivering it to the witness in person,
(b) By registered or certified mail, or
(c) By delivering the subpoena to a responsible person (named in the document certifying the delivery) at the residence or place of business (as appropriate) of the person for whom the subpoena was intended.
§ 1201.85 Enforcing subpoenas.
(a) If a person who has been served with a Board subpoena fails or refuses to comply with its terms, the party seeking compliance may file a written motion for enforcement with the judge or make an oral motion for enforcement while on the record at a hearing. That party must present the document certifying that the subpoena was served and, except where the witness was required to appear before the judge, must submit an affidavit or sworn statement under 28 U.S.C. 1746 (see appendix IV) describing the failure or refusal to obey the subpoena. The Board, in accordance with 5 U.S.C. 1204(c), may then ask the appropriate United States district court to enforce the subpoena. If the person who has failed or refused to comply with a Board subpoena is located in a foreign country, the U.S. District Court for the District of Columbia will have jurisdiction to enforce compliance, to the extent that a U.S. court can assert jurisdiction over an individual in the foreign country.
(b) Upon application by the Special Counsel, the Board may seek court enforcement of a subpoena issued by the Special Counsel in the same manner in which it seeks enforcement of Board subpoenas, in accordance with 5 U.S.C. 1212(b)(3).
Interlocutory Appeals
§ 1201.91 Explanation.
An interlocutory appeal is an appeal to the Board of a ruling made by a judge during a proceeding. The judge may permit the appeal if he or she determines that the issue presented in it is of such importance to the proceeding that it requires the Board’s immediate attention. Either party may make a motion for certification of an interlocutory appeal. In addition, the judge, on his or her own motion, may certify an interlocutory appeal to the Board. If the appeal is certified, the Board will decide the issue and the judge will act in accordance with the Board’s decision.
§ 1201.92 Criteria for certifying interlocutory appeals.
The judge will certify a ruling for review only if the record shows that:
(a) The ruling involves an important question of law or policy about which there is substantial ground for difference of opinion; and
(b) An immediate ruling will materially advance the completion of the proceeding, or the denial of an immediate ruling will cause undue harm to a party or the public.
§ 1201.93 Procedures.
(a) Motion for certification. A party seeking the certification of an interlocutory appeal must file a motion for certification within 10 days of the date of the ruling to be appealed. The motion must be filed with the judge, and must state why certification is appropriate and what the Board should do and why. The opposing party may file objections within 10 days of the date of service of the motion, or within any other time period that the judge may designate.
(b) Certification and review. The judge will grant or deny a motion for certification within five days after receiving all pleadings or, if no response is filed, within 10 days after receiving the motion. If the judge grants the motion for certification, he or she will refer the record to the Board. If the judge denies the motion, the party that sought certification may raise the matter at issue in a petition for review filed after the initial decision is issued, in accordance with §§ 1201.113 and 1201.114 of this part.
(c) Stay of appeal. The judge has the authority to proceed with or to stay the processing of the appeal while an interlocutory appeal is pending with the Board. The passage of time during any stay granted under this section is not deemed, or accounted for, as a case suspension under § 1201.28 of this part. If the judge does not stay the appeal, the Board may do so while an interlocutory appeal is pending with it.
Ex Parte Communications
§ 1201.101 Explanation and definitions.
(a) Explanation. An ex parte communication is an oral or written communication between a decision-making official of the Board and an interested party to a proceeding, when that communication is made without providing the other parties to the appeal with a chance to participate. Not all ex parte communications are prohibited. Those that involve the merits of the case, or those that violate rules requiring submissions to be in writing, are prohibited. Accordingly, interested parties may ask about such matters as the status of a case, when it will be heard, and methods of submitting evidence to the Board. Parties may not ask about matters such as what defense they should use or whether their evidence is adequate, and they may not make a submission orally if that submission is required to be made in writing.
(b) Definitions for purposes of this section – (1) Interested party includes:
(i) Any party or representative of a party involved in a proceeding before the Board; and
(ii) Any other person who might be affected by the outcome of a proceeding before the Board.
(2) Decision-making official means any judge, officer, or other employee of the Board designated to hear and decide cases except when such judge, officer, or other employee of the Board is serving as a mediator or settlement judge who is not the adjudicating judge.
§ 1201.102 Prohibition on ex parte communications.
Except as otherwise provided in § 1201.41(c)(1) of this part, ex parte communications that concern the merits of any matter before the Board for adjudication, or that otherwise violate rules requiring written submissions, are prohibited from the time the persons involved know that the Board may consider the matter until the time the Board has issued a final decision on the matter.
§ 1201.103 Placing communications in the record; sanctions.
(a) Any communication made in violation of § 1201.102 of this part will be made a part of the record. If the communication was oral, a memorandum stating the substance of the discussion will be placed in the record.
(b) If there has been a violation of § 1201.102 of this part, the judge or the Clerk of the Board, as appropriate, will notify the parties in writing that the regulation has been violated, and will give the parties 10 days to file a response.
(c) The following sanctions are available:
(1) Parties. The offending party may be required to show why, in the interest of justice, the claim or motion should not be dismissed, denied, or otherwise adversely affected.
(2) Other persons. The Board may invoke appropriate sanctions against other offending parties.
Final Decisions
§ 1201.111 Initial decision by judge.
(a) The judge will prepare an initial decision after the record closes and will serve that decision on all parties to the appeal, including named parties, permissive intervenors, and intervenors of right. The Board satisfies its legal obligation under 5 U.S.C. 7701(b)(1) by making electronic copies of initial decisions available to the Office of Personnel Management.
(b) Each initial decision will contain:
(1) Findings of fact and conclusions of law upon all the material issues of fact and law presented on the record;
(2) The reasons or bases for those findings and conclusions;
(3) An order making final disposition of the case, including appropriate relief;
(4) A statement, if the appellant is the prevailing party, as to whether interim relief is provided effective upon the date of the decision, pending the outcome of any petition for review filed by another party under subpart C of this part;
(5) The date upon which the decision will become final (a date that, for purposes of this section, is 35 days after issuance); and
(6) A statement of any further process available, including, as appropriate, a petition for review under § 1201.114 of this part, a petition for enforcement under § 1201.182, a motion for attorney fees under § 1201.203, a motion to initiate an addendum proceeding for consequential damages or compensatory damages under § 1201.204, and a petition for judicial review.
(c) Interim relief. (1) Under 5 U.S.C. 7701(b)(2), if the appellant is the prevailing party, the initial decision will provide appropriate interim relief to the appellant effective upon the date of the initial decision and remaining in effect until the date of the final order of the Board on any petition for review, unless the judge determines that the granting of interim relief is not appropriate. The agency may decline to return the appellant to his or her place of employment if it determines that the return or presence of the appellant will be unduly disruptive to the work environment. However, pay and benefits must be provided.
(2) An initial decision that orders interim relief shall include a section which will provide the appellant specific notice that the relief ordered in the decision must be provided by the agency effective as of the date of the decision if a party files a petition for review. If the relief ordered in the initial decision requires the agency to effect an appointment, the notice required by this section will so state, will specify the title and grade of the appointment, and will specifically advise the appellant of his right to receive pay and benefits while any petition for review is pending, even if the agency determines that the appellant’s return to or presence in the workplace would be unduly disruptive.
§ 1201.112 Jurisdiction of judge.
(a) After issuing the initial decision, the judge will retain jurisdiction over a case only to the extent necessary to:
(1) Correct the transcript; when one is obtained;
(2) Rule on a request by the appellant for attorney fees, consequential damages, or compensatory damages under subpart H of this part;
(3) Process any petition for enforcement filed under subpart F of this part;
(4) Vacate an initial decision to accept into the record a settlement agreement that is filed prior to the deadline for filing a petition for review, even if the settlement agreement is not received until after the date when the initial decision becomes final under § 1201.113 of this part.
(b) Nothing is this section affects the time limits prescribed in § 1201.113 regarding the finality of an initial decision or the time allowed for filing a petition for review.
§ 1201.113 Finality of decision.
The initial decision of the judge will become the Board’s final decision 35 days after issuance. Initial decisions are not precedential.
(a) Exceptions. The initial decision will not become the Board’s final decision if within the time limit for filing specified in 1201.114 of this part, any party files a petition for review or, if no petition for review is filed, files a request that the initial decision be vacated for the purpose of accepting a settlement agreement into the record.
(b) Petition for review denied. If the Board denies all petitions for review, the initial decision will become final when the Board issues its last decision denying a petition for review.
(c) Petition for review granted or case reopened. If the Board grants a petition for review or a cross petition for review, or reopens or dismisses a case, the decision of the Board is final if it disposes of the entire action.
(d) Extensions. The Board may extend the time limit for filing a petition for good cause shown as specified in § 1201.114 of this part.
(e) Exhaustion. Administrative remedies are exhausted when a decision becomes final in accordance with this section.
(f) When the Board, by final decision or order, finds there is reason to believe a current Federal employee may have committed a prohibited personnel practice described at 5 U.S.C. 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D), the Board will refer the matter to the Special Counsel to investigate and take appropriate action under 5 U.S.C. 1215.
Subpart C – Petitions for Review of Initial Decisions
§ 1201.114 Petition and cross petition for review – content and procedure.
(a) Pleadings allowed. Pleadings allowed on review include a petition for review, a cross petition for review, a response to a petition for review, a response to a cross petition for review, and a reply to a response to a petition for review.
(1) A petition for review is a pleading in which a party contends that an initial decision was incorrectly decided in whole or in part.
(2) A cross petition for review has the same meaning as a petition for review but is used to describe a pleading that is filed by a party when another party has already filed a timely petition for review.
(3) A response to a petition for review and a cross petition for review may be contained in a single pleading.
(4) A reply to a response to a petition for review is limited to the factual and legal issues raised by another party in the response to the petition for review. It may not raise new allegations of error.
(5) No pleading other than the ones described in this paragraph will be accepted unless the party files a motion with and obtains leave from the Clerk of the Board. The motion must describe the nature of and need for the pleading.
(b) Contents of petition or cross petition for review. A petition or cross petition for review states a party’s objections to the initial decision, including all of the party’s legal and factual arguments, and must be supported by references to applicable laws or regulations and by specific references to the record. Any petition or cross petition for review that contains new evidence or argument must include an explanation of why the evidence or argument was not presented before the record below closed (see § 1201.58 of this part). A petition or cross petition for review should not include documents that were part of the record below, as the entire administrative record will be available to the Board.
(c) Who may file. Any party to the proceeding, the Director of the Office of Personnel Management (OPM), or the Special Counsel (under 5 U.S.C. 1212(c)) may file a petition or cross petition for review. The Director of OPM may request review only if he or she believes that the decision is erroneous and will have a substantial impact on any civil service law, rule, or regulation under OPM’s jurisdiction. 5 U.S.C. 7701(e)(2). All submissions to the Board must contain the signature of the party or of the party’s designated representative.
(d) Place for filing. All pleadings described in paragraph (a) and all motions and pleadings associated with them must be filed with the Clerk of the Merit Systems Protection Board, 1615 M Street NW., Washington, DC 20419, by commercial or personal delivery, by facsimile, by mail, or by electronic filing in accordance with 1201.14 of this part.
(e) Time for filing. Any petition for review must be filed within 35 days after the date of issuance of the initial decision or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, within 30 days after the date the petitioner received the initial decision. For purposes of this section, the date that the petitioner receives the initial decision is determined according to the standard set forth at § 1201.22(b)(3) of this part, pertaining to an appellant’s receipt of a final agency decision. If the petitioner is represented, the 30-day time period begins to run upon receipt of the initial decision by either the representative or the petitioner, whichever comes first. A cross petition for review must be filed within 25 days of the date of service of the petition for review. Any response to a petition or cross petition for review must be filed within 25 days after the date of service of the petition or cross petition. Any reply to a response to a petition for review must be filed within 10 days after the date of service of the response to the petition for review.
(f) Extension of time to file. The Board will grant a motion for extension of time to file a pleading described in paragraph (a) only if the party submitting the motion shows good cause. Motions for extensions must be filed with the Clerk of the Board on or before the date on which the petition or other pleading is due. The Board, in its discretion, may grant or deny those motions without providing the other parties the opportunity to comment on them. A motion for an extension must be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See Appendix IV.) The affidavit or sworn statement must include a specific and detailed description of the circumstances alleged to constitute good cause, and it should be accompanied by any available documentation or other evidence supporting the matters asserted.
(g) Late filings. Any pleading described in paragraph (a) of this section that is filed late must be accompanied by a motion that shows good cause for the untimely filing, unless the Board has specifically granted an extension of time under paragraph (f) of this section, or unless a motion for extension is pending before the Board. The motion must be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See Appendix IV.) The affidavit or sworn statement must include: The reasons for failing to request an extension before the deadline for the submission, and a specific and detailed description of the circumstances causing the late filing, accompanied by supporting documentation or other evidence. Any response to the motion may be included in the response to the petition for review, the cross petition for review, or the response to the cross petition for review. The response will not extend the time provided by paragraph (e) of this section to file a cross petition for review or to respond to the petition or cross petition. In the absence of a motion, the Board may, in its discretion, determine on the basis of the existing record whether there was good cause for the untimely filing, or it may provide the party that submitted the document with an opportunity to show why it should not be dismissed or excluded as untimely.
(h) Length limitations. A petition for review, a cross petition for review, or a response to a petition for review, whether computer generated, typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A reply to a response to a petition for review is limited to 15 pages or 3750 words, whichever is less. Computer generated and typed pleadings must use no less than 12 point typeface and 1-inch margins and must be double spaced and only use one side of a page. The length limitation is exclusive of any table of contents, table of authorities, attachments, and certificate of service. A request for leave to file a pleading that exceeds the limitations prescribed in this paragraph must be received by the Clerk of the Board at least 3 days before the filing deadline. Such requests must give the reasons for a waiver as well as the desired length of the pleading and are granted only in exceptional circumstances. The page and word limits set forth above are maximum limits. Parties are not expected or required to submit pleadings of the maximum length. Typically, a well-written petition for review is between 5 and 10 pages long.
(i) Intervention. (1) By Director of OPM. The Director of OPM may intervene in a case before the Board under the standards stated in 5 U.S.C. 7701(d). The notice of intervention is timely if it is filed with the Clerk of the Board within 45 days of the date the petition for review was filed. If the Director requests additional time for filing a brief on intervention, the Board may, in its discretion, grant the request. A party may file a response to the Director’s brief within 15 days of the date of service of that brief. The Director must serve the notice of intervention and the brief on all parties.
(2) By Special Counsel. (i) Under 5 U.S.C. 1212(c), the Special Counsel may intervene as a matter of right, except as provided in paragraph (i)(2)(ii) of this section. The notice of intervention is timely filed if it is filed with the Clerk of the Board within 45 days of the date the petition for review was filed. If the Special Counsel requests additional time for filing a brief on intervention, the Board may, in its discretion, grant the request. A party may file a response to the Special Counsel’s brief within 15 days of the date of service. The Special Counsel must serve the notice of intervention and the brief on all parties.
(ii) The Special Counsel may not intervene in an action brought by an individual under 5 U.S.C. 1221, or in an appeal brought by an individual under 5 U.S.C. 7701, without the consent of that individual. The Special Counsel must present evidence that the individual has consented to the intervention at the time the motion to intervene is filed.
(3) Permissive intervenors. Any person, organization, or agency, by motion made in a petition for review, may ask for permission to intervene. The motion must state in detail the reasons why the person, organization, or agency should be permitted to intervene. A motion for permission to intervene will be granted if the requester shows that he or she will be affected directly by the outcome of the proceeding. Any person alleged to have committed a prohibited personnel practice under 5 U.S.C. 2302(b) may ask for permission to intervene.
(j) Service. A party submitting a pleading must serve a copy of it on each party and on each representative, as required by paragraph (b)(2) of § 1201.26.
(k) Closing the record. The record closes on expiration of the period for filing the reply to the response to the petition for review or on expiration of the period for filing a response to the cross petition for review, whichever is later, or to the brief on intervention, if any, or on any other date the Board sets for this purpose. Once the record closes, no additional evidence or argument will be accepted unless it is new and material as defined in § 1201.115(d) and the party submitting it shows that the evidence or argument was not readily available before the record closed.
(l) Rejection for failure to comply. The Clerk of the Board may reject material submitted for filing that does not substantially conform to the procedural requirements of this subpart by issuing a rejection letter advising the parties of the nature of the nonconformity and the requirements and deadline for resubmission. Any deadlines affected by the rejection will be addressed in the rejection letter.
§ 1201.115 Criteria for granting petition or cross petition for review.
The Board normally will consider only issues raised in a timely filed petition or cross petition for review. Situations in which the Board may grant a petition or cross petition for review include, but are not limited to, a showing that:
(a) The initial decision contains erroneous findings of material fact.
(1) Any alleged factual error must be material, meaning of sufficient weight to warrant an outcome different from that of the initial decision.
(2) A petitioner who alleges that the judge made erroneous findings of material fact must explain why the challenged factual determination is incorrect and identify specific evidence in the record that demonstrates the error. In reviewing a claim of an erroneous finding of fact, the Board will give deference to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of witnesses testifying at a hearing.
(b) The initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case. The petitioner must explain how the error affected the outcome of the case.
(c) The judge’s rulings during either the course of the appeal or the initial decision were not consistent with required procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case.
(d) New and material evidence or legal argument is available that, despite the petitioner’s due diligence, was not available when the record closed. To constitute new evidence, the information contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed.
(e) Notwithstanding the above provisions in this section, the Board reserves the authority to consider any issue in an appeal before it.
§ 1201.116 Compliance with orders for interim relief.
(a) Certification of compliance. If the appellant was the prevailing party in the initial decision and the decision granted the appellant interim relief, any petition or cross petition for review filed by the agency must be accompanied by a certification that the agency has complied with the interim relief order either by providing the required interim relief or by satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).
(b) Challenge to certification. If the appellant challenges the agency’s certification of compliance with the interim relief order, the Board will issue an order affording the agency the opportunity to submit evidence of its compliance. The appellant may respond to the agency’s submission of evidence within 10 days after the date of service of the submission.
(c) Allegation of noncompliance in petition or cross petition for review. If an appellant or an intervenor files a petition or cross petition for review of an initial decision ordering interim relief and such petition includes a challenge to the agency’s compliance with the interim relief order, upon order of the Board the agency must submit evidence that it has provided the interim relief required or that it has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).
(d) Request for dismissal for noncompliance with interim relief order. If the agency files a petition or cross petition for review and has not provided the required interim relief, the appellant may request dismissal of the agency’s petition. Any such request must be filed with the Clerk of the Board within 25 days of the date of service of the agency’s petition. A copy of the response must be served on the agency at the same time it is filed with the Board. The agency may respond with evidence and argument to the appellant’s request to dismiss within 15 days of the date of service of the request. If the appellant files a motion to dismiss beyond the time limit, the Board will dismiss the motion as untimely unless the appellant shows that it is based on information not readily available before the close of the time limit.
(e) Effect of failure to show compliance with interim relief order. Failure by an agency to provide the certification required by paragraph (a) of this section with its petition or cross petition for review, or to provide evidence of compliance in response to a Board order in accordance with paragraphs (b), (c), or (d) of this section, may result in the dismissal of the agency’s petition or cross petition for review.
(f) Back pay and attorney fees. Nothing in this section shall be construed to require any payment of back pay for the period preceding the date of the judge’s initial decision or attorney fees before the decision of the Board becomes final.
(g) Allegations of noncompliance after a final decision is issued. If the initial decision granted the appellant interim relief, but the appellant is not the prevailing party in the final Board order disposing of a petition for review, and the appellant believes that the agency has not provided full interim relief, the appellant may file an enforcement petition with the regional office under 1201.182 of this part. The appellant must file this petition within 20 days of learning of the agency’s failure to provide full interim relief. If the appellant prevails in the final Board order disposing of a petition for review, then any interim relief enforcement motion filed will be treated as a motion for enforcement of the final decision. Petitions under this subsection will be processed under 1201.183 of this part.
§ 1201.117 Board decisions; procedures for review or reopening.
(a) In any case that is reopened or reviewed, the Board may:
(1) Issue a decision that decides the case;
(2) Hear oral arguments;
(3) Require that briefs be filed;
(4) Remand the appeal so that the judge may take further testimony or evidence or make further findings or conclusions; or
(5) Take any other action necessary for final disposition of the case.
(b) The Board may affirm, reverse, modify, or vacate the initial decision of the judge, in whole or in part. The Board may issue a final decision and, when appropriate, order a date for compliance with that decision.
(c) The Board may issue a decision in the form of a precedential Opinion and Order or a nonprecedential Order.
(1) Opinion and Order. An Opinion and Order is a precedential decision of the Board and may be appropriately cited or referred to by any party.
(2) Nonprecedential Orders. A nonprecedential Order is one that the Board has determined does not add significantly to the body of MSPB case law. The Board may, in its discretion, include in nonprecedential Orders a discussion of the issue(s) to assist the parties in understanding the reason(s) for the Board’s disposition in a particular appeal. Nonprecedential Orders are not binding on the Board or its administrative judges in any future appeals except when it is determined they have a preclusive effect on parties under the doctrines of res judicata (claim preclusion), collateral estoppel (issue preclusion), judicial estoppel, or law of the case. Parties may cite nonprecedential Orders, but such orders have no precedential value; the Board and its administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contributing to the Board’s case law.
§ 1201.118 Board reopening of final decisions.
Regardless of any other provision of this part, the Board may at any time reopen any appeal in which it has issued a final order or in which an initial decision has become the Board’s final decision by operation of law. The Board will exercise its discretion to reopen an appeal only in unusual or extraordinary circumstances and generally within a short period of time after the decision becomes final.
§ 1201.119 OPM petition for reconsideration.
(a) Criteria. Under 5 U.S.C. 7703(d), the Director of the Office of Personnel Management may file a petition for reconsideration of a Board final decision if he or she determines:
(1) That the Board erred in interpreting a civil service law, rule, or regulation affecting personnel management, and
(2) That the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive.
(b) Time limit. The Director must file the petition for reconsideration within 35 days after the date of service of the Board’s final decision.
(c) Briefs. After the petition is filed, the Board will make the official record relating to the petition for reconsideration available to the Director for review. The Director’s brief in support of the petition for reconsideration must be filed within 20 days after the Board makes the record available for review. Any party’s opposition to the petition for reconsideration must be filed within 25 days from the date of service of the Director’s brief.
(d) Stays. If the Director of OPM files a petition for reconsideration, he or she also may ask the Board to stay its final decision. An application for a stay, with a supporting memorandum, must be filed at the same time as the petition for reconsideration.
§ 1201.120 Judicial review.
Any employee or applicant for employment who is adversely affected by a final order or decision of the Board under the provisions of 5 U.S.C. 7703 may obtain judicial review as provided by 5 U.S.C. 7703. As § 1201.175 of this part provides, an appropriate United States district court has jurisdiction over a request for judicial review of cases involving the kinds of discrimination issues described in 5 U.S.C. 7702.
Subpart D – Procedures for Original Jurisdiction Cases
General
§ 1201.121 Scope of jurisdiction; application of subparts B, F, and H.
(a) Scope. The Board has original jurisdiction over complaints filed by the Special Counsel seeking corrective or disciplinary action (including complaints alleging a violation of the Hatch Political Activities Act), requests by the Special Counsel for stays of certain personnel actions, proposed agency actions against administrative law judges, and removals of career appointees from the Senior Executive Service for performance reasons.
(b) Application of subparts B, F, and H. (1) Except as otherwise expressly provided by this subpart, the regulations in subpart B of this part applicable to appellate case processing also apply to original jurisdiction cases processed under this subpart.
(2) Subpart F of this part applies to enforcement proceedings in connection with Special Counsel complaints and stay requests, and agency actions against administrative law judges, decided under this subpart.
(3) Subpart H of this part applies to requests for attorney fees or compensatory damages in connection with Special Counsel corrective and disciplinary action complaints, and agency actions against administrative law judges, decided under this subpart. Subpart H of this part also applies to requests for consequential damages in connection with Special Counsel corrective action complaints decided under this subpart.
(c) The provisions of this subpart do not apply to appeals alleging non-compliance with the provisions of chapter 43 of title 38 of the United States Code relating to the employment or reemployment rights or benefits to which a person is entitled after service in the uniformed services, in which the Special Counsel appears as the designated representative of the appellant. Such appeals are governed by part 1208 of this title.
Special Counsel Disciplinary Actions
§ 1201.122 Filing complaint; serving documents on parties.
(a) Place of filing. A Special Counsel complaint seeking disciplinary action under 5 U.S.C. 1215(a)(1) (including a complaint alleging a violation of the Hatch Political Activities Act) must be filed with the Clerk of the Board.
(b) Initial filing and service. The Special Counsel must file a copy of the complaint, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing each party or the party’s representative. The certificate of service must show the last known address, telephone number, and facsimile number of each party or representative. The Special Counsel must serve a copy of the complaint on each party and the party’s representative, as shown on the certificate of service.
(c) Subsequent filings and service. Each party must serve on every other party or the party’s representative one copy of each of its pleadings, as defined by § 1201.4(b). A certificate of service describing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, address, telephone number, or facsimile number of the party or the party’s representative.
§ 1201.123 Contents of complaint.
(a) If the Special Counsel determines that the Board should take any of the actions listed below, he or she must file a written complaint in accordance with § 1201.122 of this part, stating with particularity any alleged violations of law or regulation, along with the supporting facts.
(1) Action to discipline an employee alleged to have committed a prohibited personnel practice, 5 U.S.C. 1215(a)(1)(A);
(2) Action to discipline an employee alleged to have violated any law, rule, or regulation, or to have engaged in prohibited conduct, within the jurisdiction of the Special Counsel under 5 U.S.C. 1216 (including an alleged violation by a Federal or District of Columbia government employee involving political activity prohibited under 5 U.S.C. 7324), 5 U.S.C. 1215(a)(1)(B), 1216(a), and 1216(c);
(3) Action to discipline a State or local government employee for an alleged violation involving prohibited political activity, 5 U.S.C. 1505; or
(4) Action to discipline an employee for an alleged knowing and willful refusal or failure to comply with an order of the Board, 5 U.S.C. 1215(a)(1)(C).
(b) The administrative law judge to whom the complaint is assigned may order the Special Counsel and the responding party to file briefs, memoranda, or both in any disciplinary action complaint the Special Counsel brings before the Board.
§ 1201.124 Rights; answer to complaint.
(a) Responsibilities of Clerk of the Board. The Clerk of the Board shall furnish a copy of the applicable Board regulations to each party that is not a Federal, State, or local government agency and shall inform such a party of the party’s rights under paragraph (b) of this section and the requirements regarding the timeliness and content of an answer to the Special Counsel’s complaint under paragraphs (c) and (d), respectively, of this section.
(b) Rights. When the Special Counsel files a complaint proposing a disciplinary action against an employee under 5 U.S.C. 1215(a)(1), the employee has the right:
(1) To file an answer, supported by affidavits and documentary evidence;
(2) To be represented;
(3) To a hearing on the record before an administrative law judge;
(4) To a written decision, issued at the earliest practicable date, in which the administrative law judge states the reasons for his or her decision; and
(5) To a copy of the administrative law judge’s decision and subsequent final decision by the Board, if any.
(c) Filing and default. A party named in a Special Counsel disciplinary action complaint may file an answer with the Clerk of the Board within 35 days of the date of service of the complaint. If a party fails to answer, the failure may constitute waiver of the right to contest the allegations in the complaint. Unanswered allegations may be considered admitted and may form the basis of the administrative law judge’s decision.
(d) Content. An answer must contain a specific denial, admission, or explanation of each fact alleged in the complaint. If the respondent has no knowledge of a fact, he or she must say so. The respondent may include statements of fact and appropriate documentation to support each denial or defense. Allegations that are unanswered or admitted in the answer may be considered true.
§ 1201.125 Administrative law judge.
(a) An administrative law judge will hear a disciplinary action complaint brought by the Special Counsel.
(b) The administrative law judge will issue an initial decision on the complaint pursuant to 5 U.S.C. 557. The applicable provisions of §§ 1201.111, 1201.112, and 1201.113 of this part govern the issuance of initial decisions, the jurisdiction of the judge, and the finality of initial decisions. The initial decision will be subject to the procedures for a petition for review by the Board under subpart C of this part.
§ 1201.126 Final decisions.
(a) In any action to discipline an employee, except as provided in paragraph (b) of this section, the administrative law judge, or the Board on petition for review, may order a removal, a reduction in grade, a debarment (not to exceed five years), a suspension, a reprimand, or an assessment of a civil penalty not to exceed $1,288, 5 U.S.C. 1215(a)(3), 7326; 28 U.S.C. 2461 note.
(b) In any action in which the administrative law judge, or the Board on petition for review, finds under 5 U.S.C. 1505 that a State or local government employee has violated the Hatch Political Activities Act and that the employee’s removal is warranted, the administrative law judge, or the Board on petition for review, will issue a written decision notifying the employing agency and the employee that the employee must be removed and not reappointed within 18 months of the date of the decision. If the agency fails to remove the employee, or if it reappoints the employee within 18 months, the administrative law judge, or the Board on petition for review, may order the Federal entity administering loans or grants to the agency to withhold funds from the agency as provided under 5 U.S.C. 1506.
§ 1201.127 Judicial review.
(a) An employee subject to a final Board decision imposing disciplinary action under 5 U.S.C. 1215 may obtain judicial review of the decision in the United States Court of Appeals for the Federal Circuit, except as provided under paragraph (b) of this section. 5 U.S.C. 1215(a)(4).
(b) A party aggrieved by a determination or order of the Board under 5 U.S.C. 1505 (governing alleged violations of the Hatch Political Activities Act by State or local government employees) may obtain judicial review in an appropriate United States district court. 5 U.S.C. 1508.
Special Counsel Corrective Actions
§ 1201.128 Filing complaint; serving documents on parties.
(a) Place of filing. A Special Counsel complaint seeking corrective action under 5 U.S.C. 1214 must be filed with the Clerk of the Board. After the complaint has been assigned to a judge, subsequent pleadings must be filed with the Board office where the judge is located.
(b) Initial filing and service. The Special Counsel must file a copy of the complaint, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing the respondent agency or the agency’s representative, and each person on whose behalf the corrective action is brought.
(c) Subsequent filings and service. Each party must serve on every other party or the party’s representative one copy of each of its pleadings, as defined by § 1201.4(b). A certificate of service describing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, address, telephone number, or facsimile number of the party or the party’s representative.
§ 1201.129 Contents of complaint.
(a) If the Special Counsel determines that the Board should take action to require an agency to correct a prohibited personnel practice (or a pattern of prohibited personnel practices) under 5 U.S.C. 1214(b)(4), he or she must file a written complaint in accordance with § 1201.128 of this part, stating with particularity any alleged violations of law or regulation, along with the supporting facts.
(b) If the Special Counsel files a corrective action with the Board on behalf of an employee, former employee, or applicant for employment who has sought corrective action from the Board directly under 5 U.S.C. 1214(a)(3), the Special Counsel must provide evidence that the employee, former employee, or applicant has consented to the Special Counsel’s seeking corrective action. 5 U.S.C. 1214(a)(4).
(c) The judge to whom the complaint is assigned may order the Special Counsel and the respondent agency to file briefs, memoranda, or both in any corrective action complaint the Special Counsel brings before the Board.
§ 1201.130 Rights; answer to complaint.
(a) Rights. (1) A person on whose behalf the Special Counsel brings a corrective action has a right to request intervention in the proceeding in accordance with the regulations in § 1201.34 of this part. The Clerk of the Board shall notify each such person of this right.
(2) When the Special Counsel files a complaint seeking corrective action, the judge to whom the complaint is assigned shall provide an opportunity for oral or written comments by the Special Counsel, the agency involved, and the Office of Personnel Management. 5 U.S.C. 1214(b)(3)(A).
(3) The judge to whom the complaint is assigned shall provide a person alleged to have been the subject of any prohibited personnel practice alleged in the complaint the opportunity to make written comments, regardless of whether that person has requested and been granted intervenor status. 5 U.S.C. 1214(b)(3)(B).
(b) Filing and default. An agency named as respondent in a Special Counsel corrective action complaint may file an answer with the judge to whom the complaint is assigned within 35 days of the date of service of the complaint. If the agency fails to answer, the failure may constitute waiver of the right to contest the allegations in the complaint. Unanswered allegations may be considered admitted and may form the basis of the judge’s decision.
(c) Content. An answer must contain a specific denial, admission, or explanation of each fact alleged in the complaint. If the respondent agency has no knowledge of a fact, it must say so. The respondent may include statements of fact and appropriate documentation to support each denial or defense. Allegations that are unanswered or admitted in the answer may be considered true.
§ 1201.131 Judge.
(a) The Board will assign a corrective action complaint brought by the Special Counsel under this subpart to a judge, as defined at § 1201.4(a) of this part, for hearing.
(b) The judge will issue an initial decision on the complaint pursuant to 5 U.S.C. 557. The applicable provisions of §§ 1201.111, 1201.112, and 1201.113 of this part govern the issuance of initial decisions, the jurisdiction of the judge, and the finality of initial decisions. The initial decision will be subject to the procedures for a petition for review by the Board under subpart C of this part.
§ 1201.132 Final decisions.
(a) In any Special Counsel complaint seeking corrective action based on an allegation that a prohibited personnel practice has been committed, the judge, or the Board on petition for review, may order appropriate corrective action. 5 U.S.C. 1214(b)(4)(A).
(b)(1) Subject to the provisions of paragraph (b)(2) of this section, in any case involving an alleged prohibited personnel practice described in 5 U.S.C. 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D), the judge, or the Board on petition for review, will order appropriate corrective action if the Special Counsel demonstrates that a disclosure or protected activity described under 5 U.S.C. 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D) was a contributing factor in the personnel action that was taken or will be taken against the individual.
(2) Corrective action under paragraph (b)(1) of this section may not be ordered if the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure or protected activity. 5 U.S.C. 1214(b)(4)(B).
§ 1201.133 Judicial review.
An employee, former employee, or applicant for employment who is adversely affected by a final Board decision on a corrective action complaint brought by the Special Counsel may obtain judicial review of the decision as provided by 5 U.S.C. 7703.
Special Counsel Requests for Stays
§ 1201.134 Deciding official; filing stay request; serving documents on parties.
(a) Request to stay personnel action. Under 5 U.S.C. 1214(b)(1), the Special Counsel may seek to stay a personnel action if the Special Counsel determines that there are reasonable grounds to believe that the action was taken or will be taken as a result of a prohibited personnel practice.
(b) Deciding official. Any member of the Board may delegate to an administrative law judge the authority to decide a Special Counsel request for an initial stay. The Board may delegate to a member of the Board the authority to rule on any matter related to a stay that has been granted to the Special Counsel, including a motion for extension or termination of the stay.
(c) Place of filing. A Special Counsel stay request must be filed with the Clerk of the Board.
(d) Initial filing and service. The Special Counsel must file a copy of the request, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing the respondent agency or the agency’s representative. The certificate of service must show the last known address, telephone number, and facsimile number of the agency or its representative. The Special Counsel must serve a copy of the request on the agency or its representative, as shown on the certificate of service.
(e) Subsequent filings and service. Each party must serve on every other party or the party’s representative one copy of each of its pleadings, as defined by § 1201.4(b). A certificate of service describing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, address, telephone number, or facsimile number of the party or the party’s representative.
§ 1201.135 Contents of stay request.
The Special Counsel, or that official’s representative, must sign each stay request, and must include the following information in the request:
(a) The names of the parties;
(b) The agency and officials involved;
(c) The nature of the action to be stayed;
(d) A concise statement of facts justifying the charge that the personnel action was or will be the result of a prohibited personnel practice; and
(e) The laws or regulations that were violated, or that will be violated if the stay is not issued.
§ 1201.136 Action on stay request.
(a) Initial stay. A Special Counsel request for an initial stay of 45 days will be granted within three working days after the filing of the request, unless, under the facts and circumstances, the requested stay would not be appropriate. Unless the stay is denied within the 3-day period, it is considered granted by operation of law.
(b) Extension of stay. Upon the Special Counsel’s request, a stay granted under 5 U.S.C. 1214(b)(1)(A) may be extended for an appropriate period of time, but only after providing the agency with an opportunity to comment on the request. Any request for an extension of a stay under 5 U.S.C. 1214(b)(1)(B) must be received by the Board and the agency no later than 15 days before the expiration date of the stay. A brief describing the facts and any relevant legal authority that should be considered must accompany the request for extension. Any response by the agency must be received by the Board no later than 8 days before the expiration date of the stay.
(c) Evidence of compliance with a stay. Within five working days from the date of a stay order or an order extending a stay, the agency ordered to stay a personnel action must file evidence setting forth facts and circumstances demonstrating compliance with the order.
(d) Termination of stay. A stay may be terminated at any time, except that a stay may not be terminated:
(1) On the motion of an agency, or on the deciding official’s own motion, without first providing notice and opportunity for oral or written comments to the Special Counsel and the individual on whose behalf the stay was ordered; or
(2) On the motion of the Special Counsel without first providing notice and opportunity for oral or written comments to the individual on whose behalf the stay was ordered. 5 U.S.C. 1214(b)(1)(D).
(e) Additional information. At any time, where appropriate, the Special Counsel, the agency, or both may be required to appear and present further information or explanation regarding a request for a stay, to file supplemental briefs or memoranda, or to supply factual information needed to make a decision regarding a stay.
Actions Against Administrative Law Judges
§ 1201.137 Covered actions; filing complaint; serving documents on parties.
(a) Covered actions. The jurisdiction of the Board under 5 U.S.C. 7521 and this subpart with respect to actions against administrative law judges is limited to proposals by an agency to take any of the following actions against an administrative law judge:
(1) Removal;
(2) Suspension;
(3) Reduction in grade;
(4) Reduction in pay; and
(5) Furlough of 30 days or less.
(b) Place of filing. To initiate an action against an administrative law judge under this subpart, an agency must file a complaint with the Clerk of the Board.
(c) Initial filing and service. The agency must file a copy of the complaint, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing each party or the party’s representative. The certificate of service must show the last known address, telephone number, and facsimile number of each party or representative. The agency must serve a copy of the complaint on each party and the party’s representative, as shown on the certificate of service.
(d) Subsequent filings and service. Each party must serve on every other party or the party’s representative one copy of each of its pleadings, as defined by § 1201.4(b). A certificate of service describing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, address, telephone number, or facsimile number of the party or the party’s representative.
§ 1201.138 Contents of complaint.
A complaint filed under this section must describe with particularity the facts that support the proposed agency action.
§ 1201.139 Rights; answer to complaint.
(a) Responsibilities of Clerk of the Board. The Clerk of the Board shall furnish a copy of the applicable Board regulations to each administrative law judge named as a respondent in the complaint and shall inform each respondent of his or her rights under paragraph (b) of this section and the requirements regarding the timeliness and content of an answer to the agency’s complaint under paragraphs (c) and (d), respectively, of this section.
(b) Rights. When an agency files a complaint proposing an action against an administrative law judge under 5 U.S.C. 7521 and this subpart, the administrative law judge has the right:
(1) To file an answer, supported by affidavits and documentary evidence;
(2) To be represented;
(3) To a hearing on the record before an administrative law judge;
(4) To a written decision, issued at the earliest practicable date, in which the administrative law judge states the reasons for his or her decision; and
(5) To a copy of the administrative law judge’s decision and subsequent final decision by the Board, if any.
(c) Filing and default. A respondent named in an agency complaint may file an answer with the Clerk of the Board within 35 days of the date of service of the complaint. If a respondent fails to answer, the failure may constitute waiver of the right to contest the allegations in the complaint. Unanswered allegations may be considered admitted and may form the basis of the administrative law judge’s decision.
(d) Content. An answer must contain a specific denial, admission, or explanation of each fact alleged in the complaint. If the respondent has no knowledge of a fact, he or she must say so. The respondent may include statements of fact and appropriate documentation to support each denial or defense. Allegations that are unanswered or admitted in the answer may be considered true.
§ 1201.140 Judge; requirement for finding of good cause.
(a) Judge. (1) An administrative law judge will hear an action brought by an employing agency under this subpart against a respondent administrative law judge.
(2) The judge will issue an initial decision pursuant to 5 U.S.C. 557. The applicable provisions of §§ 1201.111, 1201.112, and 1201.113 of this part govern the issuance of initial decisions, the jurisdiction of the judge, and the finality of initial decisions. The initial decision will be subject to the procedures for a petition for review by the Board under subpart C of this part.
(b) Requirement for finding of good cause. A decision on a proposed agency action under this subpart against an administrative law judge will authorize the agency to take a disciplinary action, and will specify the penalty to be imposed, only after a finding of good cause as required by 5 U.S.C. 7521 has been made.
§ 1201.141 Judicial review.
An administrative law judge subject to a final Board decision authorizing a proposed agency action under 5 U.S.C. 7521 may obtain judicial review of the decision in the United States Court of Appeals for the Federal Circuit. 5 U.S.C. 7703.
§ 1201.142 Actions filed by administrative law judges.
An administrative law judge who alleges a constructive removal or other action by an agency in violation of 5 U.S.C. 7521 may file a complaint with the Board under this subpart. The filing and service requirements of § 1201.137 of this part apply. Such complaints shall be adjudicated in the same manner as agency complaints under this subpart.
Removal From the Senior Executive Service
§ 1201.143 Right to hearing; filing complaint; serving documents on parties.
(a) Right to hearing. If an agency proposes to remove a career appointee from the Senior Executive Service under 5 U.S.C. 3592(a) (2) and 5 CFR 359.502, and to place that employee in another civil service position, the appointee may request an informal hearing before an official designated by the Board. Under 5 CFR 359.502, the agency proposing the removal must provide the appointee 30 days advance notice and must advise the appointee of the right to request a hearing. If the appointee files the request at least 15 days before the effective date of the proposed removal, the request will be granted.
(b) Place of filing. A request for an informal hearing under paragraph (a) of this section must be filed with the Clerk of the Board. After the request has been assigned to a judge, subsequent pleadings must be filed with the Board office where the judge is located.
(c) Initial filing and service. Except when filed electronically under 1201.14, the appointee must file two copies of the request, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing the agency proposing the appointee’s removal or the agency’s representative. The certificate of service must show the last known address, telephone number, and facsimile number of the agency or its representative. The appointee must serve a copy of the request on the agency or its representative, as shown on the certificate of service.
(d) Subsequent filings and service. Each party must serve on every other party or the party’s representative one copy of each of its pleadings, as defined by § 1201.4(b). A certificate of service describing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, address, telephone number, or facsimile number of the party or the party’s representative.
§ 1201.144 Hearing procedures; referring the record.
(a) The official designated to hold an informal hearing requested by a career appointee whose removal from the Senior Executive Service has been proposed under 5 U.S.C. 3592(a)(2) and 5 CFR 359.502 will be a judge, as defined at § 1201.4(a) of this part.
(b) The appointee, the appointee’s representative, or both may appear and present arguments in an informal hearing before the judge. A verbatim record of the proceeding will be made. The appointee has no other procedural rights before the judge or the Board.
(c) The judge will refer a copy of the record to the Special Counsel, the Office of Personnel Management, and the employing agency for whatever action may be appropriate.
§ 1201.145 No appeal.
There is no right under 5 U.S.C. 7703 to appeal the agency’s action or any action by the judge or the Board in cases arising under § 1201.143(a) of this part. The removal action will not be delayed as a result of the hearing.
Requests for Protective Orders
§ 1201.146 Requests for protective orders by the Special Counsel.
(a) Under 5 U.S.C. 1204(e)(1)(B), the Board may issue any order that may be necessary to protect a witness or other individual from harassment during an investigation by the Special Counsel or during the pendency of any proceeding before the Board, except that an agency, other than the Office of the Special Counsel, may not request a protective order with respect to an investigation by the Special Counsel during such investigation.
(b) Any motion by the Special Counsel requesting a protective order must include a concise statement of reasons justifying the motion, together with any relevant documentary evidence. Where the request is made in connection with a pending Special Counsel proceeding, the motion must be filed as early in the proceeding as practicable.
(c) Where there is a pending Special Counsel proceeding, a Special Counsel motion requesting a protective order must be filed with the judge conducting the proceeding, and the judge will rule on the motion. Where there is no pending Special Counsel proceeding, a Special Counsel motion requesting a protective order must be filed with the Clerk of the Board, and the Board will designate a judge, as defined at § 1201.4(a) of this part, to rule on the motion.
§ 1201.147 Requests for protective orders by persons other than the Special Counsel.
Requests for protective orders by persons other than the Special Counsel in connection with pending original jurisdiction proceedings are governed by § 1201.55(d) of this part.
§ 1201.148 Enforcement of protective orders.
A protective order issued by a judge or the Board under this subpart may be enforced in the same manner as provided under subpart F of this part for Board final decisions and orders.
Subpart E – Procedures for Cases Involving Allegations of Discrimination
§ 1201.151 Scope and policy.
(a) Scope. (1) The rules in this subpart implement 5 U.S.C. 7702. They apply to any case in which an employee or applicant for employment alleges that a personnel action appealable to the Board was based, in whole or in part, on prohibited discrimination.
(2) “Prohibited discrimination,” as that term is used in this subpart, means discrimination prohibited by:
(i) Section 717 of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-16(a));
(ii) Section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 206(d));
(iii) Section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791);
(iv) Sections 12 and 15 of the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. 631, 633a); or
(v) Any rule, regulation, or policy directive prescribed under any provision of law described in paragraphs (a)(2) (i) through (iv) of this section.
(b) Policy. The Board’s policy is to adjudicate impartially, thoroughly, and fairly all issues raised under this subpart.
§ 1201.152 Compliance with subpart B procedures.
Unless this subpart expressly provides otherwise, all actions involving allegations of prohibited discrimination must comply with the regulations that are included in subpart B of this part.
§ 1201.153 Contents of appeal.
(a) Contents. An appeal raising issues of prohibited discrimination must comply with § 1201.24 of this part, with the following exceptions:
(1) The appeal must state that there was discrimination in connection with the matter appealed, and it must state specifically how the agency discriminated against the appellant; and
(2) The appeal must state whether the appellant has filed a grievance under a negotiated grievance procedure or a formal discrimination complaint with any agency regarding the matter being appealed to the Board. If he or she has done so, the appeal must state the date on which the appellant filed the complaint or grievance, and it must describe any action that the agency took in response to the complaint or grievance.
(b) Use of Board form or Internet filing option. An appellant may comply with paragraph (a) of this section by completing MSPB Form 185, or by completing all requests for information marked as required at the e-Appeal site (https://e-appeal.mspb.gov). MSPB Form 185 can be accessed at the Board’s Web site (http://www.mspb.gov).
§ 1201.154 Time for filing appeal.
For purposes of this section, the date an appellant receives the agency’s decision is determined according to the standard set forth at 1201.22(b)(3) of this part. Appellants who file appeals raising issues of prohibited discrimination in connection with a matter otherwise appealable to the Board must comply with the following time limits:
(a) Where the appellant has been subject to an action appealable to the Board, he or she may either file a timely complaint of discrimination with the agency or file an appeal with the Board no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant’s receipt of the agency’s decision on the appealable action, whichever is later.
(b) If the appellant has filed a timely formal complaint of discrimination with the agency:
(1) An appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue; or
(2) If the agency has not resolved the matter or issued a final decision on the formal complaint within 120 days, the appellant may appeal the matter directly to the Board at any time after the expiration of 120 calendar days. Once the agency resolves the matter or issues a final decision on the formal complaint, an appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue.
(c) If the appellant files an appeal prematurely under this subpart, the judge will dismiss the appeal without prejudice to its later refiling under § 1201.22 of this part. If holding the appeal for a short time would allow it to become timely, the judge may hold the appeal rather than dismiss it.
§ 1201.155 Requests for review of arbitrators’ decisions.
(a) Source and applicability. (1) Under paragraph (d) of 5 U.S.C. 7121, an employee who believes he or she has been subjected to discrimination within the meaning of 5 U.S.C. 2302(b)(1), and who may raise the matter under either a statutory procedure such as 5 U.S.C. 7701 or under a negotiated grievance procedure, must make an election between the two procedures. The election of the negotiated grievance procedure “in no manner prejudices” the employee’s right to request Board review of the final decision pursuant to 5 U.S.C. 7702. Subsection (a)(1) of section 7702 provides that, “[n]otwithstanding any other provision of law,” when an employee who has been subjected to an action that is appealable to the Board and who alleges that the action was the result of discrimination within the meaning of 5 U.S.C. 2302(b)(1), the Board will decide both the issue of discrimination and the appealable action in accordance with the Board’s appellate procedures under section 7701.
(2) This section does not apply to employees of the Postal Service or to other employees excluded from the coverage of the Federal labor management laws at chapter 71 of title 5, United States Code.
(b) When filed. The appellant’s request for Board review must be filed within 35 days after the date of issuance of the decision or, if the appellant shows that he or she received the decision more than 5 days after the date of issuance, within 30 days after the date the appellant received the decision.
(c) Scope of Board review. If the negotiated grievance procedure permits allegations of discrimination, the Board will review only those claims of discrimination that were raised in the negotiated grievance procedure. If the negotiated grievance procedure does not permit allegations of discrimination to be raised, the appellant may raise such claims before the Board.
(d) Contents. The appellant must file the request with the Clerk of the Board, Merit Systems Protection Board, 1615 M Street NW., Washington, DC 20419. The request for review must contain:
(1) A statement of the grounds on which review is requested;
(2) References to evidence of record or rulings related to the issues before the Board;
(3) Arguments in support of the stated grounds that refer specifically to relevant documents and that include relevant citations of authority; and
(4) Legible copies of the final grievance or arbitration decision, the agency decision to take the action, and other relevant documents. Those documents may include a transcript or recording of the hearing.
(e) Development of the record. The Board, in its discretion, may develop the record as to a claim of prohibited discrimination by ordering the parties to submit additional evidence or forwarding the request for review to a judge to conduct a hearing.
(f) Closing of the record. The record will close upon expiration of the period for filing the response to the request for review, or to the brief on intervention, if any, or on any other date the Board sets for this purpose. Once the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed.
§ 1201.156 Time for processing appeals involving allegations of discrimination.
(a) Issue raised in appeal. When an appellant alleges prohibited discrimination in the appeal, the judge will decide both the issue of discrimination and the appealable action within 120 days after the appeal is filed.
(b) Issue not raised in appeal. When an appellant has not alleged prohibited discrimination in the appeal, but has raised the issue later in the proceeding, the judge will decide both the issue of discrimination and the appealable action within 120 days after the issue is raised.
(c) Discrimination issue remanded to agency. When the judge remands an issue of discrimination to the agency, adjudication will be completed within 120 days after the agency completes its action and returns the case to the Board.
§ 1201.157 Notice of right to judicial review.
Any final decision of the Board under 5 U.S.C. 7702 will notify the appellant of his or her right, within 30 days after receiving the Board’s final decision, to petition the Equal Employment Opportunity Commission to consider the Board’s decision, or to file a civil action in an appropriate United States district court. If an appellant elects to waive the discrimination issue, an appeal may be filed with the United States Court of Appeals for the Federal Circuit as stated in § 1201.120 of this part.
Review of Board Decision
§ 1201.161 Action by the Equal Employment Opportunity Commission; judicial review.
(a) Time limit for determination. In cases in which an appellant petitions the Equal Employment Opportunity Commission (Commission) for consideration of the Board’s decision under 5 U.S.C. 7702(b)(2), the Commission will determine, within 30 days after the date of the petition, whether it will consider the decision.
(b) Judicial review. The Board’s decision will become judicially reviewable on:
(1) The date on which the decision is issued, if the appellant does not file a petition with the Commission under 5 U.S.C. 7702(b)(1); or
(2) The date of the Commission’s decision that it will not consider the petition filed under 5 U.S.C. 7702(b)(2).
(c) Commission processing and time limits. If the Commission decides to consider the decision of the Board, within 60 days after making its decision it will complete its consideration and either:
(1) Concur in the decision of the Board; or
(2) Issue in writing and forward to the Board for its action under § 1201.162 of this subpart another decision, which differs from the decision of the Board to the extent that the Commission finds that, as a matter of law:
(i) The decision of the Board constitutes an incorrect interpretation of any provision of any law, rule, regulation, or policy directive related to prohibited discrimination; or
(ii) The evidence in the record as a whole does not support the decision involving that provision.
(d) Transmittal of record. The Board will transmit a copy of its record to the Commission upon request.
(e) Development of additional evidence. When asked by the Commission to do so, the Board or a judge will develop additional evidence necessary to supplement the record. This action will be completed within a period that will permit the Commission to make its decision within the statutory 60-day time limit referred to in paragraph (c) of this section. The Board or the judge may schedule additional proceedings if necessary in order to comply with the Commission’s request.
(f) Commission concurrence in Board decision. If the Commission concurs in the decision of the Board under 5 U.S.C. 7702(b)(3)(A), the appellant may file suit in an appropriate United States district court.
§ 1201.162 Board action on the Commission decision; judicial review.
(a) Board decision. Within 30 days after receipt of a decision of the Commission issued under 1201.161(c)(2), the Board shall consider the decision and:
(1) Concur and adopt in whole the decision of the Commission; or
(2) To the extent that the Board finds that, as a matter of law:
(i) The Commission decision is based on an incorrect interpretation of any provision of any civil service law, rule, regulation, or policy directive, or
(ii) The evidence in the record as a whole does not support the Commission decision involving that provision, it may reaffirm the decision of the Board. In doing so, it may make revisions in the decision that it determines are appropriate.
(b) Judicial review. If the Board concurs in or adopts the decision of the Commission under paragraph (a)(1) of this section, the decision of the Board is a judicially reviewable action.
Special Panel
§ 1201.171 Referral of case to Special Panel.
If the Board reaffirms its decision under § 1201.162(a)(2) of this part with or without modification, it will certify the matter immediately to a Special Panel established under 5 U.S.C. 7702(d). Upon certification, the Board, within 5 days (excluding Saturdays, Sundays, and Federal holidays), will transmit the administrative record in the proceeding to the Chairman of the Special Panel and to the Commission. That record will include the following:
(a) The factual record compiled under this section, which will include a transcript of any hearing;
(b) The decisions issued by the Board and the Commission under 5 U.S.C. 7702; and
(c) A transcript of oral arguments made, or legal briefs filed, before the Board or the Commission.
§ 1201.172 Organization of Special Panel; designation of members.
(a) A Special Panel is composed of:
(1) A Chairman, appointed by the President with the advice and consent of the Senate, whose term is six (6) years;
(2) One member of the Board, designated by the Chairman of the Board each time a Panel is convened;
(3) One member of the Commission, designated by the Chairman of the Commission each time a Panel is convened.
(b) Designation of Special Panel members – (1) Time of designation. Within 5 days of certification of a case to a Special Panel, the Chairman of Board and the Chairman of the Commission each will designate one member from his or her agency to serve on the Special Panel.
(2) Manner of designation. Letters designating the Panel members will be served on the Chairman of the Panel and on the parties to the appeal.
§ 1201.173 Practices and procedures of Special Panel.
(a) Scope. The rules in this subpart apply to proceedings before a Special Panel.
(b) Suspension of rules. Unless a rule is required by statute, the Chairman of a Special Panel may suspend the rule, in the interest of expediting a decision or for other good cause shown, and may conduct the proceedings in a manner he or she directs. The Chairman may take this action at the request of a party, or on his or her own motion.
(c) Time limit for proceedings. In accordance with 5 U.S.C. 7702(d)(2)(A), the Special Panel will issue a decision within 45 days after a matter has been certified to it.
(d) Administrative assistance to the Special Panel. (1) The Board and the Commission will provide the Panel with the administrative resources that the Chairman of the Special Panel determines are reasonable and necessary.
(2) Assistance will include, but is not limited to, processing vouchers for pay and travel expenses.
(3) The Board and the Commission are responsible for all administrative costs the Special Panel incurs, and, to the extent practicable, they will divide equally the costs of providing administrative assistance. If the Board and the Commission disagree on the manner in which costs are to be divided, the Chairman of the Special Panel will resolve the disagreement.
(e) Maintaining the official record. The Board will maintain the official record of the appeal. It will transmit two copies of each submission that is filed to each member of the Special Panel in an expeditious manner.
(f) Filing and service of pleadings. (1) The parties must file the original and six copies of each submission with the Clerk, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419. The Office of the Clerk will serve one copy of each submission on the other parties.
(2) A certificate of service specifying how and when service was made must accompany all submissions of the parties.
(3) Service may be made by mail or by personal delivery during the Board’s normal business hours (8:30 a.m. to 5:00 p.m.). Because of the short statutory time limit for processing these cases, parties must file their submissions by overnight Express Mail, provided by the U.S. Postal Service, if they file their submissions by mail.
(4) A submission filed by Express Mail is considered to have been filed on the date of the Express Mail Order. A submission that is delivered personally is considered to have been filed on the date the Office of the Clerk of the Board receives it.
(g) Briefs and responsive pleadings. If the parties wish to submit written argument, they may file briefs with the Special Panel within 15 days after the date of the Board’s certification order. Because of the short statutory time limit for processing these cases, the Special Panel ordinarily will not permit responsive pleadings.
(h) Oral argument. The parties have the right to present oral argument. Parties wishing to exercise this right must indicate this desire when they file their briefs or, if no briefs are filed, within 15 days after the date of the Board’s certification order. Upon receiving a request for argument, the Chairman of the Special Panel will determine the time and place for argument and the amount of time to be allowed each side, and he or she will provide this information to the parties.
(i) Postargument submission. Because of the short statutory time limit for processing these cases, the parties may not file postargument submissions unless the Chairman of the Special Panel permits those submissions.
(j) Procedural matters. Any procedural matters not addressed in these regulations will be resolved by written order of the Chairman of the Special Panel.
(k) Electronic filing. Pleadings in matters before the Special Panel may not be filed or served in electronic form.
§ 1201.174 Enforcing the Special Panel decision.
The Board, upon receipt of the decision of the Special Panel, will order the agency concerned to take any action appropriate to carry out the decision of the Panel. The Board’s regulations regarding enforcement of a final order of the Board apply to this matter. These regulations are set out in subpart F of this part.
§ 1201.175 Judicial review of cases decided under 5 U.S.C. 7702.
(a) Place and type of review. The appropriate United States district court is authorized to conduct all judicial review of cases decided under 5 U.S.C. 7702. Those cases include appeals from actions taken under the following provisions: Section 717(c) of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e-16(c)); section 15(c) of the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. 633a(c)); and section 15(b) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 216(b)).
(b) Time for filing request. Regardless of any other provision of law, requests for judicial review of all cases decided under 5 U.S.C. 7702 must be filed within 30 days after the appellant received notice of the judicially reviewable action.
Subpart F – Enforcement of Final Decisions and Orders
§ 1201.181 Authority and explanation.
(a) Authority. Under 5 U.S.C. 1204(a)(2), the Board has the authority to order any Federal agency or employee to comply with decisions and orders issued under its jurisdiction and the authority to enforce compliance with its orders and decisions. The Board’s decisions and orders, when appropriate, will contain a notice of the Board’s enforcement authority.
(b) Requirements for parties. The parties are expected to cooperate fully with each other so that compliance with the Board’s orders and decisions can be accomplished promptly and in accordance with the laws, rules, and regulations that apply to individual cases. Agencies must promptly inform an appellant of actions taken to comply and must inform the appellant when it believes compliance is complete. Appellants must provide agencies with all information necessary for compliance and should monitor the agency’s progress towards compliance.
§ 1201.182 Petition for enforcement.
(a) Appellate jurisdiction. Any party may petition the Board for enforcement of a final decision or order issued under the Board’s appellate jurisdiction, or for enforcement of the terms of a settlement agreement that has been entered into the record for the purpose of enforcement in an order or decision under the Board’s appellate jurisdiction. The petition must be filed promptly with the regional or field office that issued the initial decision; a copy of it must be served on the other party or that party’s representative; and it must describe specifically the reasons the petitioning party believes there is noncompliance. The petition also must include the date and results of any communications regarding compliance. Any petition for enforcement that is filed more than 30 days after the date of service of the agency’s notice that it has complied must contain a statement and evidence showing good cause for the delay and a request for an extension of time for filing the petition.
(b) Original jurisdiction. Any party seeking enforcement of a final Board decision or order issued under its original jurisdiction or enforcement of the terms of settlement agreement entered into the record for the purpose of enforcement in an order or decision issued under its original jurisdiction must file a petition for enforcement with the Clerk of the Board and must serve a copy of that petition on the other party or that party’s representative. The petition must describe specifically the reasons why the petitioning party believes there is noncompliance.
(c) Petition by an employee other than a party. (1) Under 5 U.S.C. 1204(e)(2)(B), any employee who is aggrieved by the failure of any other employee to comply with an order of the Board may petition the Board for enforcement. Except for a petition filed under paragraph (c)(2) or (c)(3) of this section, the Board will entertain a petition for enforcement from an aggrieved employee who is not a party only if the employee seeks and is granted party status as a permissive intervenor under § 1201.34(c) of this part. The employee must file a motion to intervene at the time of filing the petition for enforcement. The petition for enforcement must describe specifically why the petitioner believes there is noncompliance and in what way the petitioner is aggrieved by the noncompliance. The motion to intervene will be considered in accordance with § 1201.34(c) of this part.
(2) Under § 1201.33(c) of this part, a nonparty witness who has obtained an order from a judge that his or her employing agency provide the witness with official time may petition the Board for enforcement of the order.
(3) Under § 1201.37(e) of this part, a nonparty witness who has obtained an order requiring the payment of witness fees and travel costs may petition the Board for enforcement of the order.
(4) Under § 1201.55(d) of this part, a nonparty witness or other individual who has obtained a protective order from a judge during the course of a Board proceeding for protection from harassment may petition the Board for enforcement of the order.
(5) A petition for enforcement under paragraph (c)(1), (c)(2), (c)(3) or (c)(4) of this section must be filed promptly with the regional or field office that issued the order or, if the order was issued by the Board, with the Clerk of the Board. The petitioner must serve a copy of the petition on each party or the party’s representative. If the petition is filed under paragraph (c)(1) of this section, the motion to intervene must be filed and served with the petition.
§ 1201.183 Procedures for processing petitions for enforcement.
(a) Initial Processing. (1) When a party has filed a petition for enforcement of a final decision, the alleged noncomplying party must file one of the following within 15 days of the date of service of the petition:
(i) Evidence of compliance, including a narrative explanation of the calculation of back pay and other benefits, and supporting documents;
(ii) Evidence as described in paragraph (a)(1)(i) of this section of the compliance actions that the party has completed, and a statement of the actions that are in process and the actions that remain to be taken, along with a reasonable schedule for full compliance; or
(iii) A statement showing good cause for the failure to comply completely with the decision of the Board.
(2) If the agency is the alleged noncomplying party, it shall submit the name, title, grade, and address of the agency official charged with complying with the Board’s order, and inform such official in writing of the potential sanction for noncompliance as set forth in 5 U.S.C. 1204(a)(2) and (e)(2)(A), even if the agency asserts it has fully complied. The agency must advise the Board of any change to the identity or location of this official during the pendency of any compliance proceeding. In the absence of this information, the Board will presume that the highest ranking appropriate agency official who is not appointed by the President by and with the consent of the Senate is charged with compliance.
(3) The judge may convene a hearing if one is necessary to resolve matters at issue.
(4) If the judge finds that there has been compliance or a good faith effort to take all actions required to be in compliance with the final decision, he or she will state those findings in a decision. That decision will be subject to the procedures for petitions for review by the Board under subpart C of this part, and subject to judicial review under § 1201.120 of this part.
(5) If the judge finds that the alleged noncomplying party has not taken all actions required to be in full compliance with the final decision, the judge will issue an initial decision resolving all issues raised in the petition for enforcement and identifying the specific actions the noncomplying party must take to be in compliance with the Board’s final decision. A copy of the initial decision will be served on the responsible agency official.
(6) If an initial decision described under paragraph (a)(5) of this section is issued, the party found to be in noncompliance must do the following:
(i) To the extent that the party decides to take the actions required by the initial decision, the party must submit to the Clerk of the Board, within the time limit for filing a petition for review under § 1201.114(e) of this part, a statement that the party has taken the actions identified in the initial decision, along with evidence establishing that the party has taken those actions. The narrative statement must explain in detail why the evidence of compliance satisfies the requirements set forth in the initial decision.
(ii) To the extent that the party decides not to take all of the actions required by the initial decision, the party must file a petition for review under the provisions of §§ 1201.114 and 1201.115 of this part.
(iii) The responses required by the preceding two paragraphs may be filed separately or as a single pleading.
(7) If the agency is the party found to be in noncompliance, it must advise the Board, as part of any submission under this paragraph, of any change in the identity or location of the official responsible for compliance previously provided pursuant to paragraph (a)(2) of this section.
(8) The complying party may file evidence and argument in response to any submission described in paragraph (a)(6) of this section by filing opposing evidence and argument with the Clerk of the Board within 20 days of the date such submission is filed.
(9) Discovery may be undertaken in accordance with the Board’s regular discovery procedures (§§ 1201.71 through 1201.75 of this part), except that unless otherwise directed by the judge, initial discovery requests must be served no later than 15 days after the alleged noncomplying party files a response to the petition for enforcement as required under paragraph (a)(1) of this section.
(b) Final Decision of noncompliance. If a party found to be in noncompliance under paragraph (a)(5) of this section does not file a timely pleading with the Clerk of the Board as required by paragraph (a)(6) of this section, the findings of noncompliance become final and the case will be processed under the enforcement provisions of paragraph (c)(1) of this section.
(c) Consideration by the Board. (1) Following review of the initial decision and the written submissions of the parties, the Board will render a final decision on the issues of compliance. Upon finding that the agency is in noncompliance, the Board may, when appropriate, require the agency and the responsible agency official to appear before the Board to show why sanctions should not be imposed under 5 U.S.C. 1204(a)(2) and 1204(e)(2)(A). The Board also may require the agency and the responsible agency official to make this showing in writing, or to make it both personally and in writing. The responsible agency official has the right to respond in writing or to appear at any argument concerning the withholding of that official’s pay.
(2) The Board’s final decision on the issues of compliance is subject to judicial review under 1201.120 of this part.
(d) Burdens of proof. If an appellant files a petition for enforcement seeking compliance with a Board order, the agency generally has the burden to prove its compliance with the Board order by a preponderance of the evidence. However, if any party files a petition for enforcement seeking compliance with the terms of a settlement agreement, that party has the burden of proving the other party’s breach of the settlement agreement by a preponderance of the evidence.
(e) Certification to the Comptroller General. When appropriate, the Board may certify to the Comptroller General of the United States, under 5 U.S.C. 1204(e)(2)(A), that no payment is to be made to a certain Federal employee. This order may apply to any Federal employee, other than a Presidential appointee subject to confirmation by the Senate, who is found to be in noncompliance with the Board’s order.
(f) Effect of Special Counsel’s action or failure to act. Failure by the Special Counsel to file a complaint under 5 U.S.C. 1215(a)(1)(C) and subpart D of this part will not preclude the Board from taking action under this subpart.
Subpart G – Savings Provisions
§ 1201.191 Savings provisions.
(a) Civil Service Reform Act of 1978 (Pub.L. 95-454) – (1) Scope. All executive orders, rules and regulations relating to the Federal service that were in effect prior to the effective date of the Civil Service Reform Act shall continue in effect and be applied by the Board in its adjudications until modified, terminated, superseded, or repealed by the President, Office of Personnel Management, the Merit Systems Protection Board, the Equal Employment Opportunity Commission, or the Federal Labor Relations Authority, as appropriate.
(2) Administrative proceedings and appeals therefrom. No provision of the Civil Service Reform Act shall be applied by the Board in such a way as to affect any administrative proceeding pending at the effective date of such provision. “Pending” is considered to encompass existing agency proceedings, and appeals before the Board or its predecessor agencies, that were subject to judicial review or under judicial review on January 11, 1979, the date on which the Act became effective. An agency proceeding is considered to exist once the employee has received notice of the proposed action.
(3) Explanation. Mr. X was advised of agency’s intention to remove him for abandonment of position, effective December 29, 1978. Twenty days later Mr. X appealed the agency action to the Merit Systems Protection Board. The Merit Systems Protection Board docketed Mr. X’s appeal as an “old system case,” i.e., one to which the savings clause applied. The appropriate regional office processed the case, applying the substantive laws, rules and regulations in existence prior to the enactment of the Act. The decision, dated February 28, 1979, informed Mr. X that he is entitled to judicial review if he files a timely notice of appeal in the appropriate United States district court or the United States Court of Claims under the statute of limitations applicable when the adverse action was taken.
(b) Whistleblower Protection Act of 1989 (Pub. L. 101-12) – (1) Scope. All orders, rules, and regulations issued by the Board and the Special Counsel before the effective date of the Whistleblower Protection Act of 1989 shall continue in effect, according to their terms, until modified, terminated, superseded, or repealed by the Board or the Special Counsel, as appropriate.
(2) Administrative proceedings and appeals therefrom. No provision of the Whistleblower Protection Act of 1989 shall be applied by the Board in such a way as to affect any administrative proceeding pending at the effective date of such provision. “Pending” is considered to encompass existing agency proceedings, including personnel actions that were proposed, threatened, or taken before July 9, 1989, the effective date of the Whistleblower Protection Act of 1989, and appeals before the Board or its predecessor agencies that were subject to judicial review on that date. An agency proceeding is considered to exist once the employee has received notice of the proposed action.
Subpart H – Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation Expenses, Where Applicable) and Damages (Consequential, Liquidated, and Compensatory)
§ 1201.201 Statement of purpose.
(a) This subpart governs Board proceedings for awards of attorney fees (plus costs, expert witness fees, and litigation expenses, where applicable), consequential damages, compensatory damages, and liquidated damages.
(b) There are seven statutory provisions covering attorney fee awards. Because most MSPB cases are appeals under 5 U.S.C. 7701, most requests for attorney fees will be governed by § 1201.202(a)(1). There are, however, other attorney fee provisions that apply only to specific kinds of cases. For example, § 1201.202(a)(4) applies only to certain whistleblower appeals. Sections 1201.202(a)(5) and (a)(6) apply only to corrective and disciplinary action cases brought by the Special Counsel. Section 1201.202(a)(7) applies only to appeals brought under the Uniformed Services Employment and Reemployment Rights Act.
(c) An award of consequential damages is authorized in only two situations: Where the Board orders corrective action in a whistleblower appeal under 5 U.S.C. 1221, and where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214. Consequential damages include such items as medical costs and travel expenses, and other costs as determined by the Board through case law.
(d) The Civil Rights Act of 1991 (42 U.S.C. 1981a) authorizes an award of compensatory damages to a prevailing party who is found to have been intentionally discriminated against based on race, color, religion, sex, national origin, or disability. The Whistleblower Protection Enhancement Act of 2012 (5 U.S.C. 1221(g)) also authorizes an award of compensatory damages in cases where the Board orders corrective action. Compensatory damages include pecuniary losses, future pecuniary losses, and nonpecuniary losses, such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life.
(e) An award equal to back pay shall be awarded as liquidated damages under 5 U.S.C. 3330c when the Board or a court determines an agency willfully violated an appellant’s veterans’ preference rights.
§ 1201.202 Authority for awards.
(a) Awards of attorney fees (plus costs, expert witness fees, and litigation expenses, where applicable). The Board is authorized by various statutes to order payment of attorney fees and, where applicable, costs, expert witness fees, and litigation expenses. These statutory authorities include, but are not limited to, the following authorities to order payment of:
(1) Attorney fees, as authorized by 5 U.S.C. 7701(g)(1), where the appellant or respondent is the prevailing party in an appeal under 5 U.S.C. 7701 or an agency action against an administrative law judge under 5 U.S.C. 7521, and an award is warranted in the interest of justice;
(2) Attorney fees, as authorized by 5 U.S.C. 7701(g)(2), where the appellant or respondent is the prevailing party in an appeal under 5 U.S.C. 7701, a request to review an arbitration decision under 5 U.S.C. 7121(d), or an agency action against an administrative law judge under 5 U.S.C. 7521, and the decision is based on a finding of discrimination prohibited under 5 U.S.C. 2302(b)(1);
(3) Attorney fees and costs, as authorized by 5 U.S.C. 1221(g)(2), where the appellant is the prevailing party in an appeal under 5 U.S.C. 7701 and the Board’s decision is based on a finding of a prohibited personnel practice;
(4) Attorney fees and costs, as authorized by 5 U.S.C. 1221(g)(1)(B), where the Board orders corrective action in a whistleblower appeal to which 5 U.S.C. 1221 applies;
(5) Attorney fees, as authorized by 5 U.S.C. 1214(g)(2) or 5 U.S.C. 7701(g)(1), where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214;
(6) Attorney fees, costs and damages as authorized by 5 U.S.C. 1214(h) where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214 and determines that the employee has been subjected to an agency investigation that was commenced, expanded or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action.
(7) Attorney fees, as authorized by 5 U.S.C. 1204(m), where the respondent is the prevailing party in a Special Counsel complaint for disciplinary action under 5 U.S.C. 1215;
(8) Attorney fees, expert witness fees, and litigation expenses, as authorized by the Uniformed Services Employment and Reemployment Rights Act, 38 U.S.C. 4324(c)(4); and
(9) Attorney fees, expert witness fees, and other litigation expenses, as authorized by the Veterans Employment Opportunities Act; 5 U.S.C. 3330c(b).
(b) Awards of consequential damages. The Board may order payment of consequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages:
(1) As authorized by 5 U.S.C. 1221(g)(1)(A)(ii), where the Board orders corrective action in a whistleblower appeal to which 5 U.S.C. 1221 applies; and
(2) As authorized by 5 U.S.C. 1221(g)(4) where the Board orders corrective action to correct a prohibited personnel practice and determines that the employee has been subjected to an agency investigation that was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action.
(3) As authorized by 5 U.S.C. 1214(g)(2), where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214.
(4) As authorized by 5 U.S.C. 1214(h) where the Board orders corrective action to correct a prohibited personnel practice and determines that the employee has been subjected to an agency investigation that was commenced, expanded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action.
(c) Awards of compensatory damages. The Board may order payment of compensatory damages, as authorized by section 102 of the Civil Rights Act of 1991 (42 U.S.C. 1981a), based on a finding of unlawful intentional discrimination but not on an employment practice that is unlawful because of its disparate impact under the Civil Rights Act of 1964, the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990. The Whistleblower Protection Enhancement Act of 2012 (5 U.S.C. 1221(g)) also authorizes an award of compensatory damages in cases where the Board orders corrective action. Compensatory damages include pecuniary losses, future pecuniary losses, and nonpecuniary losses such as emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life.
(d) Awards of liquidated damages. The Board may award an amount equal to back pay as liquidated damages under 5 U.S.C. 3330c when it determines that an agency willfully violated an appellant’s veterans’ preference rights.
(e) Definitions. For purposes of this subpart:
(1) A proceeding on the merits is a proceeding to decide an appeal of an agency action under 5 U.S.C. 1221 or 7701, an appeal under 38 U.S.C. 4324, an appeal under 5 U.S.C. 3330a, a request to review an arbitration decision under 5 U.S.C. 7121(d), a Special Counsel complaint under 5 U.S.C. 1214 or 1215, or an agency action against an administrative law judge under 5 U.S.C. 7521.
(2) An addendum proceeding is a proceeding conducted after issuance of a final decision in a proceeding on the merits, including a decision accepting the parties’ settlement of the case. The final decision in the proceeding on the merits may be an initial decision of a judge that has become final under § 1201.113 of this part or a final decision of the Board.
§ 1201.203 Proceedings for attorney fees.
(a) Form and content of request. A request for attorney fees must be made by motion, must state why the appellant or respondent believes he or she is entitled to an award under the applicable statutory standard, and must be supported by evidence substantiating the amount of the request. Evidence supporting a motion for attorney fees must include at a minimum:
(1) Accurate and current time records;
(2) A copy of the terms of the fee agreement (if any);
(3) A statement of the attorney’s customary billing rate for similar work, with evidence that that rate is consistent with the prevailing community rate for similar services in the community in which the attorney ordinarily practices; and
(4) An established attorney-client relationship.
(b) Addendum proceeding. A request for attorney fees will be decided in an addendum proceeding.
(c) Place of filing. Where the initial decision in the proceeding on the merits was issued by a judge in a MSPB regional or field office, a motion for attorney fees must be filed with the regional or field office that issued the initial decision. Where the decision in the proceeding on the merits was an initial decision issued by a judge at the Board’s headquarters or where the only decision was a final decision issued by the Board, a motion for attorney fees must be filed with the Clerk of the Board.
(d) Time of filing. A motion for attorney fees must be filed as soon as possible after a final decision of the Board but no later than 60 days after the date on which a decision becomes final.
(e) Service. A copy of a motion for attorney fees must be served on the other parties or their representatives at the time of filing. A party may file a pleading responding to the motion within the time limit established by the judge.
(f) Hearing; applicability of subpart B. The judge may hold a hearing on a motion for attorney fees and may apply appropriate provisions of subpart B of this part to the addendum proceeding.
(g) Initial decision; review by the Board. The judge will issue an initial decision in the addendum proceeding, which shall be subject to the provisions for a petition for review by the Board under subpart C of this part.
§ 1201.204 Proceedings for consequential, liquidated, or compensatory damages.
(a) Time for making request. (1) A request for consequential, liquidated, or compensatory damages must be made during the proceeding on the merits, no later than the end of the conference(s) held to define the issues in the case.
(2) The judge or the Board, as applicable, may waive the time limit for making a request for consequential, liquidated, or compensatory damages for good cause shown. The time limit will not be waived if a party shows that such waiver would result in undue prejudice.
(b) Form and content of request. A request for consequential, liquidated, or compensatory damages must be made in writing and must state the amount of damages sought and the reasons why the appellant or respondent believes he or she is entitled to an award under the applicable statutory standard.
(c) Service. A copy of a request for consequential, liquidated, or compensatory damages must be served on the other parties or their representatives when the request is made.
A party may file a pleading responding to the request within the time limit established by the judge or the Board, as applicable.
(d) Addendum proceeding. (1) A request for consequential, liquidated, or compensatory damages will be decided in an addendum proceeding.
(2) A judge may waive the requirement of paragraph (d)(1), either on his or her own motion or on the motion of a party, and consider a request for damages in a proceeding on the merits where the judge determines that such action is in the interest of the parties and will promote efficiency and economy in adjudication.
(e) Initiation of addendum proceeding. (1) A motion for initiation of an addendum proceeding to decide a request for consequential, liquidated, or compensatory damages must be filed as soon as possible after a final decision of the Board but no later than 60 days after the date on which a decision becomes final. Where the initial decision in the proceeding on the merits was issued by a judge in a MSPB regional or field office, the motion must be filed with the regional or field office that issued the initial decision. Where the decision in the proceeding on the merits was an initial decision issued by a judge at the Board’s headquarters or where the only decision was a final decision issued by the Board, the motion must be filed with the Clerk of the Board.
(2) A copy of a motion for initiation of an addendum proceeding to decide a request for consequential, liquidated, or compensatory damages must be served on the other parties or their representatives at the time of filing. A party may file a pleading responding to the motion within the time limit established by the judge.
(f) Hearing; applicability of subpart B. The judge may hold a hearing on a request for consequential, liquidated, or compensatory damages and may apply appropriate provisions of subpart B of this part to the addendum proceeding.
(g) Initial decision; review by the Board. The judge will issue an initial decision in the addendum proceeding, which shall be subject to the provisions for a petition for review by the Board under subpart C of this part.
(h) Request for damages first made in proceeding before the Board. Where a request for consequential, liquidated, or compensatory damages is first made on petition for review of a judge’s initial decision on the merits and the Board waives the time limit for making the request in accordance with paragraph (a)(2) of this section, or where the request is made in a case where the only MSPB proceeding is before the Board, including, for compensatory damages only, a request to review an arbitration decision under 5 U.S.C. 7121(d), the Board may:
(1) Consider both the merits and the request for damages and issue a final decision;
(2) Remand the case to the judge for a new initial decision, either on the request for damages only or on both the merits and the request for damages; or
(3) Where there has been no prior proceeding before a judge, forward the request for damages to a judge for hearing and a recommendation to the Board, after which the Board will issue a final decision on both the merits and the request for damages.
(i) EEOC review of decision on compensatory damages. A final decision of the Board on a request for compensatory damages pursuant to the Civil Rights Act of 1991 shall be subject to review by the Equal Employment Opportunity Commission as provided under subpart E of this part.
§ 1201.205 Judicial review.
A final Board decision under this subpart is subject to judicial review as provided under 5 U.S.C. 7703.
Appendix I to Part 1201 [Reserved]
Appendix II to Part 1201 – Appropriate Regional or Field Office for Filing Appeals
All submissions shall be addressed to the Regional Director, if submitted to a regional office, or the Chief Administrative Judge, if submitted to a field office, Merit Systems Protection Board, at the addresses listed below, according to geographic region of the employing agency or as required by § 1201.4(d) of this part. The facsimile numbers listed below are TDD-capable; however, calls will be answered by voice before being connected to the TDD. Address of Appropriate Regional or Field Office and Area Served:
1. Atlanta Regional Office, 401 West Peachtree Street, NW., 10th floor, Atlanta, Georgia 30308-3519, Facsimile No.: (404) 730-2767, (Alabama; Florida; Georgia; Mississippi; South Carolina; and Tennessee).
2. Central Regional Office, 230 South Dearborn Street, 31st floor, Chicago, Illinois 60604-1669, Facsimile No.: (312) 886-4231, (Illinois; Indiana; Iowa; Kansas City, Kansas; Kentucky; Michigan; Minnesota; Missouri; Ohio; and Wisconsin).
3. Northeastern Regional Office, 1601 Market Street, Suite 1700, Philadelphia, PA 19103, Facsimile No.: (215) 597-3456, (Connecticut; Delaware; Maine; Maryland – except the counties of Montgomery and Prince George’s; Massachusetts; New Hampshire; New Jersey – except the counties of Bergen, Essex, Hudson, and Union; Pennsylvania; Rhode Island; Vermont; and West Virginia).
3a. New York Field Office, 26 Federal Plaza, Room 3137-A, New York, New York 10278-0022, Facsimile No.: (212) 264-1417, (New Jersey – counties of Bergen, Essex, Hudson, and Union; New York; Puerto Rico; and Virgin Islands).
4. Washington Regional Office, 1901 S. Bell Street, Arlington, Virginia 22202, Facsimile No.: (703) 756-7112, (Maryland – counties of Montgomery and Prince George’s; North Carolina; Virginia; Washington, DC; and all overseas areas not otherwise covered).
5. Western Regional Office, 1301 Clay Street, Suite 1380N, Oakland, California 94612-5217, Facsimile No.: (510) 273-7136, (Alaska; California; Hawaii; Idaho; Nevada; Oregon; Washington; and Pacific overseas areas).
5a. Denver Field Office, 165 South Union Blvd., Suite 318, Lakewood, Colorado 80228-2211, Facsimile No.: (303) 969-5109, (Arizona; Colorado; Kansas – except Kansas City; Montana; Nebraska; New Mexico; North Dakota; South Dakota; Utah; and Wyoming).
6. Dallas Regional Office, 1100 Commerce Street, Room 620, Dallas, Texas 75242-9979, Facsimile No.: (214) 767-0102, (Arkansas; Louisiana; Oklahoma; and Texas).
Appendix III to Part 1201 [Reserved]
Appendix IV to Part 1201 – Sample Declaration Under 28 U.S.C.1746
I, ___________, do hereby declare:
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.
PART 1202 – STATUTORY REVIEW BOARD
§ 1202.1 Designating Chairman of Statutory Review Board.
At the written request of the Department of Transportation, the Chairman of the Board will designate a presiding official of the Board to serve as the Chairman of any Board of Review established by the Secretary of Transportation under 5 U.S.C. 3383(b) to review certain actions to remove air traffic controllers.
PART 1203 – PROCEDURES FOR REVIEW OF RULES AND REGULATIONS OF THE OFFICE OF PERSONNEL MANAGEMENT
General
§ 1203.1 Scope; application of part 1201, subpart B.
(a) General. This part applies to the Board’s review, under 5 U.S.C. 1204(a)(4) and 1204(f), of any rules or regulations (“regulations”) issued by the Office of Personnel Management (OPM). It applies to the Board’s review of the way in which an agency implements regulations, as well as to its review of the validity of the regulations on their face.
(b) Application of 5 CFR part 1201, subparts B and C. (1) Where appropriate, and unless the Board’s regulations provide otherwise, the Board may apply the provisions of 5 CFR part 1201, subpart B to proceedings conducted under this part. It may do so on its own motion or on the motion of a party to these proceedings.
(2) The following provisions of 5 CFR part 1201, subparts B and C do not apply to proceedings conducted under this part:
(i) Sections 1201.21 through 1201.27 which concern petitions for appeal of agency actions, and the pleadings that are filed in connection with those petitions; and
(ii) Sections 1201.111 through 1201.119 which concern final decisions of presiding officials, and petitions for Board review of those decisions.
§ 1203.2 Definitions.
(a) Invalid regulation means a regulation that has been issued by OPM, and that, on its face, would require an employee to commit a prohibited personnel practice if any agency implemented the regulation.
(b) Invalidly implemented regulation means a regulation, issued by OPM, whose implementation by an agency has required an employee to commit a prohibited personnel practice. A valid regulation may be invalidly implemented.
(c) Merit system principles are the principles stated in 5 U.S.C. 2301(b)(1) through 2301(b)(9).
(d) Pleadings are written submissions containing claims, allegations, arguments, or evidence. They include briefs, motions, requests for regulation review, responses, replies, and attachments that are submitted in connection with proceedings under this part.
(e) Prohibited personnel practices are the impermissible actions described in 5 U.S.C. 2302(b)(1) through 2302(b)(12).
(f) Regulation review means the procedure under which the Board, under 5 U.S.C. 1204(f), reviews regulations issued by OPM on their face, or reviews those regulations as they have been implemented, or both, in order to determine whether the regulations require any employee to commit a prohibited personnel practice.
(g) Request for regulation review means a request that the Board review a regulation issued by OPM.
Procedures for Review
§ 1203.11 Request for regulation review.
(a) An interested person or the Special Counsel may submit a request for regulation review.
(b) Contents of request. (1) Each request for regulation review must include the following information:
(i) The name, address, and signature of the requester’s representative or, if the requester has no representative, of the requester;
(ii) A citation identifying the regulation being challenged;
(iii) A statement (along with any relevant documents) describing in detail the reasons why the regulation would require an employee to commit a prohibited personnel practice; or the reasons why the implementation of the regulation requires an employee to commit a prohibited personnel practice;
(iv) Specific identification of the prohibited personnel practice at issue; and
(v) A description of the action the requester would like the Board to take.
(2) If the prohibited personnel practice at issue is one prohibited by 5 U.S.C. 2302(b)(12), the request must include the following additional information:
(i) Identification of the law or regulation that allegedly would be or has been violated, and how it would be or has been violated; and
(ii) Identification of the merit system principles at issue and an explanation of the way in which the law or regulation at issue implements or directly concerns those principles.
§ 1203.12 Granting or denying the request for regulation review.
(a) The Board, in its sole discretion, may grant or deny an interested person’s request for regulation review. It will grant a request for regulation review that the Special Counsel submits. It will not, however, review a regulation before its effective date.
(b) After considering the request for regulation review, the Board will issue an order granting or denying the request in whole or in part. Orders in which the Board grants the request, in whole or in part, will identify the agency or agencies involved, if any. They also will include the following:
(1) A citation identifying the regulation being challenged;
(2) A description of the issues to be addressed;
(3) The docket number assigned to the proceedings; and
(4) Instructions covering the review proceedings, including information regarding the time limits for filing submissions related to the request.
§ 1203.13 Filing pleadings.
(a) Place to file and number of copies. One original and three copies of each pleading must be filed with the Office of the Clerk, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419. In addition, parties to a proceeding under this part must serve their pleadings on each other in accordance with § 1203.14 of this part. The Office of the Clerk will make all pleadings available for review by the public.
(b) Time limits. (1) A request for regulation review may be filed any time after the effective date of the regulation.
(2) A response to a request for regulation review, whether the response supports or opposes the request, must be filed within the time period provided in the Board order granting the request for review.
(3) A reply to a response may be filed within 10 days after the response is filed. The reply may address only those matters raised in the response that were not addressed in the request for regulation review.
(4) Motions may be filed at any time during the regulation review. The filing of a motion will not delay the acting of the Board unless the Board orders a postponement. The Board may rule immediately on a motion for an extension of time or a continuance if circumstances make consideration of others’ views regarding the motion impracticable.
(5) Submissions opposing motions must be filed within five days after the opposing party receives the motion.
(c) Additional pleadings. The Board will consider pleadings in addition to those mentioned above only if the Board requests them, or if it grants a request that it consider them.
(d) Method and date of filing. An initial filing in a request for review of a regulation may be filed with the Office of the Clerk by mail, by commercial or personal delivery, or by facsimile. Pleadings, other than an initial request for a regulation review under this part, may be filed with the Office of the Clerk by mail, by commercial or personal delivery, by facsimile, or by e-filing in accordance with § 1201.14 of this chapter. If the document was submitted by certified mail, it is considered to have been filed on the mailing date. If it was submitted by regular mail, it is presumed to have been filed five days before the Office of the Clerk receives it, in the absence of evidence contradicting that presumption. If it was delivered personally, it is considered to have been filed on the date the Office of the Clerk receives it. If it was submitted by facsimile, the date of the facsimile is considered to be the filing date. If it was submitted by commercial delivery, the date of filing is the date it was delivered to the commercial delivery service. If it was submitted by e-filing, it is considered to have been filed on the date of electronic submission.
(e) Extensions of time. The Board will grant a request for extension of time only when good cause is shown.
§ 1203.14 Serving documents.
(a) Parties. In every case, the person requesting regulation review must serve a copy of the request on the Director of OPM. In addition, when the implementation of a regulation is being challenged, the requester must also serve a copy of the request on the head of the implementing agency. A copy of all other pleadings must be served, by the person submitting the pleading, on each other party to the proceeding.
(b) Method of serving documents. Pleadings may be served on parties by mail, by personal delivery, by facsimile, or by commercial delivery. Service by mail is accomplished by mailing the pleading to each party or representative, at the party’s or representative’s last known address. Service by facsimile is accomplished by transmitting the pleading by facsimile to each party or representative. Service by personal delivery or by commercial delivery is accomplished by delivering the pleading to the business office or home of each party or representative and leaving it with the party or representative, or with a responsible person at that address. Regardless of the method of service, the party serving the document must submit to the Board, along with the pleading, a certificate of service as proof that the document was served on the other parties or their representatives. The certificate of service must list the names and addresses of the persons on whom the pleading was served, must state the date on which the pleading was served, must state the method (i.e., mail, personal delivery, facsimile, or commercial delivery) by which service was accomplished, and must be signed by the person responsible for accomplishing service.
(c) Electronic filing. Other than the initial request for a regulation review, pleadings in a regulation review proceeding may be filed with the Board and served upon other parties by electronic filing, provided the requirements of § 1201.14 of this chapter are satisfied.
§ 1203.15 Review of regulations on the Board’s own motion.
The Board may, from time to time, review a regulation on its own motion under 5 U.S.C. 1204(f)(1)(A). When it does so, it will publish notice of the review in the
§ 1203.16 Proceedings.
The Board has substantial discretion in conducting a regulation review under this part. It may conduct a review on the basis of the pleadings alone, or on the basis of the pleadings along with any or all of the following:
(a) Additional written comments;
(b) Oral argument;
(c) Evidence presented at a hearing; and/or
(d) Evidence gathered through any other appropriate procedures that are conducted in accordance with law.
Order of the Board
§ 1203.21 Final order of the Board.
(a) Invalid regulation. If the Board determines that a regulation is invalid on its face, in whole or in part, it will require any agency affected by the order to stop complying with the regulation, in whole or in part. In addition, it may order other remedial action that it finds necessary.
(b) Invalidly implemented regulation. If the Board determines that a regulation has been implemented invalidly, in whole or in part, it will require affected agencies to terminate the invalid implementation.
(c) Corrective action. The Board may order corrective action necessary to ensure compliance with its order. The action it may order includes, but is not limited to, the following:
(1) Cancellation of any personnel action related to the prohibited personnel practice;
(2) Rescission of any action related to the cancelled personnel action;
(3) Removal of any reference, record, or document within an employee’s official personnel folder that is related to the prohibited personnel practice;
(4) Award of back pay and benefits;
(5) Award of attorney fees;
(6) Other remedial measures to reverse the effects of a prohibited personnel practice; and
(7) The agency’s submission of a verified report of its compliance with the Board’s order.
§ 1203.22 Enforcement of order.
(a) Any party may ask the Board to enforce a final order it has issued under this part. The request may be made by filing a petition for enforcement with the Office of the Clerk of the Board and by serving a copy of the petition on each party to the regulation review. The request may be filed in electronic form, provided the requirements of § 1201.14 are satisfied. The petition must include specific reasons why the petitioning party believes that there has been a failure to comply with the Board’s order.
(b) The Board will take all action necessary to determine whether there has been compliance with its final order. If it determines that there has been a failure to comply with the order, it will take actions necessary to obtain compliance.
(c) Where appropriate, the Board may initiate the enforcement procedures described in 5 CFR 1201.183(c).
PART 1204 – AVAILABILITY OF OFFICIAL INFORMATION
Subpart A – Purpose and Scope
§ 1204.1 Purpose.
This part implements the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, by stating the procedures to follow when requesting information from the Board, and by stating the fees that will be charged for that information.
§ 1204.2 Scope.
(a) For the purpose of this part, the term record and any other term used in reference to information includes any information that would be a Board record subject to the requirements of 5 U.S.C. 552 when maintained by the Board in any format including an electronic format. All written requests for information that are not processed under part 1205 of this chapter will be processed under this part. The Board may continue, without complying with this part, to furnish the public with the information it has furnished in the regular course of performing its official duties, unless furnishing the information would violate the Privacy Act of 1974, 5 U.S.C. 552a, or another law.
(b) When the subject of the record, or the subject’s representative, requests a record from a Privacy Act system of records, as that term is defined by 5 U.S.C. 552a(a)(5), and the Board retrieves the record by the subject’s name or other personal identifier, the Board will handle the request under the procedures and fees shown in part 1205 of this chapter. When a third party requests access to those records, without the written consent of the subject of the record, the Board will handle the request under this part.
(c) When a party to an appeal requests a copy of a tape recording, video tape, or transcript (if one has been prepared) of a hearing that the Board or a judge held under part 1201 or part 1209 of this chapter, the Board will handle the request under § 1201.53 of this chapter. When someone other than a party to the appeal makes this request, the Board will handle the request under this part.
(d) In accordance with 5 U.S.C. 552(a)(2), the Board’s final opinions and orders (including concurring and dissenting opinions), those statements of policy and interpretations adopted by the Board and that are not published in the
Subpart B – Procedures for Obtaining Records Under the Freedom of Information Act
§ 1204.11 Request for access to Board records.
(a) Sending a request. A person may request a Board record under this part by writing to the office that has the record. If the requester believes that the records are located in a regional or field office, the request must be sent to that office. A list of the addresses of the Board’s regional and field offices are in appendix II of part 1201 of this chapter and on the Board’s World Wide Web site at http://www.mspb.gov. Other requests must be sent to the Clerk of the Board, 1615 M Street, NW., Washington, DC 20419-0001. Requests sent under this part must be clearly marked “Freedom of Information Act Request” on both the envelope and the request.
(b) Description. A request must describe the records wanted in enough detail for Board employees to locate the records with no more than a reasonable effort. Wherever possible, a request must include specific information about each record, such as the date, title or name, author, recipient, and subject matter of the record. In addition, if the request asks for records on cases decided by the Board, it must show the title of the case, the MSPB docket number, and the date of the decision.
(c) Time limits and decisions. If a request is not properly labeled or is sent to the wrong office, the time for processing the request will begin when the proper office receives it. Requests to the Board’s headquarters will be decided by the Clerk of the Board. Requests to one of the regional or field offices will be decided by the Regional Director or Chief Administrative Judge. The Board will decide a request within 20 workdays after the appropriate office receives it, except under the conditions that follow.
(1) Extension of time. If “unusual circumstances” exist, the Board may extend the time for deciding the request by no more than 10 additional workdays. An example of unusual circumstances could be the need to find and retrieve records from regional or field offices or from federal records centers or the need to search, collect and or examine a large number of records which are demanded in a single request, or the need to talk to another agency with a substantial interest in the determination of the request. When the Board extends the time to decide the request, it will inform the requester in writing and describe the “unusual circumstances”, and it will state a date on which a decision on the request will be made. If the “unusual circumstances” are such that the Board cannot comply with the request within the time limit, the Board will offer the requester an opportunity:
(i) To limit the request so that it may be processed within the time limit, or
(ii) To arrange with the Board a different time frame for processing the request or a changed request.
(2) Expedited processing. Where a requester shows a “compelling need” and in other cases determined by the Board, a decision whether to provide expedited processing of a request and notification of that decision to the requester will be made within 10 workdays of the date of the request. An example of a compelling need could be that a failure to obtain the records expeditiously could reasonably be expected to be a threat to the life or physical safety of a person or that there is urgency to inform the public about actual or alleged Federal Government activity by a person primarily engaged in distributing information. Where the Board approves expeditious processing, the Board will process the request within 5 workdays from the date of the decision to grant the expeditious processing. If, in order to fully satisfy the request, the Board requires the standard or additional processing time, or if it decides that good cause for expedited processing has not been made, it will provide written notice of its decision to the requester and will inform the requester of the right to administrative and court review of the decision. A showing of a compelling need must be made by a statement certified to be true to the best of the requester’s knowledge and belief.
§ 1204.12 Fees.
(a) General. The Board will charge the requester fees for services provided in processing requests for information. Those fees will be charged according to the schedule in paragraph (d) of this section, and will recover the full allowable direct costs that the Board incurs. Fees may be charged for time spent searching for information, even if the Board fails to locate responsive records, and even if it determines that the information is exempt from disclosure.
(b) Definitions. (1) The term direct costs means the costs to an agency for searching for and copying (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Direct costs include, for example, the salary of each employee performing work at the rate of $5 per quarter hour. Overhead expenses, such as costs of space and of heating or lighting the facility in which the records are stored, are not included in direct costs.
(2) The term search, as defined by 5 U.S.C. 552(a)(3)(D), means either manual or automated review of Board records to locate those records asked for, and includes all time spent looking for material in response to a request, including page-by-page or line-by-line identification of material within documents. Searches will be done in the most efficient and least expensive way to limit costs for both the Board and the requester. Searches may be done manually or by computer using existing programming. The Board will make a reasonable effort to search for the records in electronic form or format, except when such effort would interfere to a large extent with the operation of the Board’s automated information system.
(3) The term duplication means the process of copying a document or electronically maintained information in response to a FOIA request. Copies can take the form of paper, microfilm, audio-visual materials, or machine-readable documentation (e.g., magnetic tape or disk), among others. The copy provided will be in a form or format requested if the record is readily reproducible by the Board in that form or format. The Board will make a reasonable effort to maintain its records in forms or formats that are reproducible.
(4) The term review includes the process of examining documents to determine whether any portion of them may be exempt from disclosure under the FOIA, when the documents have been located in response to a request that is for a commercial use. The term also includes processing any documents for disclosure, e.g., doing all that is necessary to edit them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues.
(5) The term commercial use request means a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the requester or the person on whose behalf the request is made. In deciding whether a requester properly belongs in this category, the Board will decide the use the requester will make of the documents requested. Also, where the Board has reasonable cause to doubt the use a requester will make of the records requested, or where that use is not clear from the request, the Board will seek additional clarification before assigning the request to a specific category.
(6) The term educational institution means a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, or an institution of vocational education that operates a program or programs of scholarly research.
(7) The term noncommercial scientific institution means an institution that is not operated on a “commercial” basis as that term is used above, and that is operated solely for the purpose of conducting scientific research whose results are not intended to promote any particular product or industry.
(8) The term representative of the news media means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term news means information that concerns current events or that would be of current interest to the public.
(c) Categories of requesters. There are four categories of FOIA requesters: Commercial use requesters; educational and noncommercial scientific institutions; representatives of the news media; and all other requesters. To be included in the category of educational and noncommercial scientific institutions, requesters must show that the request is authorized by a qualifying institution and that they are seeking the records not for a commercial use, but to further scholarly or scientific research. To be included in the news media category, a requester must meet the definition in paragraph (b)(8) of this section and the request must not be made for a commercial use. To avoid commercial use charges, requesters must show that they should be included in a category or categories other than that of commercial use requesters. The Board will decide the categories to place requesters for fee purposes. It will make these determinations based on information given by the requesters and information otherwise known to the Board.
(d) The Board will not charge a requester if the fee for any request is less that $100 (the cost to the Board of processing and collecting the fee).
(1) When the Board receives a request:
(i) From a commercial use requester, it will charge fees that recover the full direct costs for searching for the information requested, reviewing it for release at the initial request stage, reviewing it after an appeal to determine whether other exemptions not considered before the appeal apply to it, and copying it.
(ii) From an educational and noncommercial scientific institution or, to the extent copying exceeds 100 pages, from a representative of the news media, it will charge fees only for the cost of copying the requested information.
(iii) From all other requesters, to the extent copying exceeds 100 pages and search time exceeds 2 hours, it will charge fees for the full direct cost of searching for and copying requested records.
(2) When the Board reasonably believes that a requester or group of requesters is attempting to divide a request into more than one request to avoid payment of fees, the Board will combine the requests and charge fees accordingly. The Board will not combine multiple requests on unrelated subjects from one requester.
(3) When the Board decides that charges for a request are likely to exceed $250, the Board will require the requester to pay the entire fee in advance before continuing to process the request.
(4) When a requester has an outstanding fee charge or has not paid a fee on time, the Board will require the requester to pay the full amount of the estimated fee in advance before the Board begins to process a new or pending request from that requester, and before it applies administrative time limits for making a decision on the new or pending request.
(e) Fee schedule. (1) Fees for document searches for records will be charged at a rate of $5 per quarter hour spent by each Board employee performing the search.
(2) Fees for computer searches for records will be $5 per quarter hour spent by each employee operating the computer equipment and/or developing a new inquiry or report.
(3) Fees for review at the initial administrative level to determine whether records or portions of records are exempt from disclosure, and for review after an appeal to determine whether the records are exempt on other legal grounds, will be charged, for commercial use requests, at a rate of $5 per quarter hour spent by each reviewing employee.
(4) Fees for photocopying records is 20 cents a page, the fee for copying audio tapes is the direct cost up to $15 per cassette tape; the fee for copying video tapes is the direct cost up to $20 per tape; and the fee for computer printouts is 10 cents a page. The fee for duplication of electronically maintained information in the requester’s preferred format will be $21 for copying computer tapes and $4 for copying records on computer diskettes, if it is feasible for the Board to reproduce records in the format requested. Fees for certified copies of the Board’s records will include a $4 per page charge for each page displaying the Board’s seal and certification. When the Board estimates that copying costs will exceed $100, it will notify the requester of the estimated amount unless the requester has indicated in advance a willingness to pay an equal or higher amount.
(f) Fee waivers. (1) Upon request, the Clerk of the Board, Regional Director, or Chief Administrative Judge, as appropriate, will furnish information without charge or at reduced rates if it is established that disclosure “is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government.” This decision will be based on:
(i) The subject of the request: Whether the subject of the requested records concerns the operations or activities of the government;
(ii) The informative value of the information to be disclosed: Whether the disclosure is likely to contribute to an understanding of government operations or activities;
(iii) Whether disclosure of the requested information is likely to contribute to public understanding of the subject of the disclosure; and
(iv) The significance of the contribution the disclosure would make to public understanding of government operations or activities.
(2) If information is to be furnished without charge or at reduced rates, the requester must also establish that disclosure of the information is not primarily in the commercial interest of the requester. This decision will be based on:
(i) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so,
(ii) Whether the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requester.
(3) The requester must establish eligibility for a waiver of fees or for reduced fees. The denial of a request for waiver of fees may be appealed under subpart C of this part.
§ 1204.13 Denials.
(a) The Board may deny: A request for reduced fees or waiver of fees; a request for a record, either in whole or in part; a request for expeditious processing based on the requester’s compelling need; or a request that records be released in a specific electronic format. The denial will be in writing, will state the reasons, and will notify the requester of the right to appeal.
(b) If the Board applies one or more of the exemptions provided under the FOIA to deny access to some or all of the information requested, it will respond in writing, identifying for the requester the specific exemption(s), providing an explanation as to why the exemption(s) to withhold the requested information must be applied, and providing an estimate of the amount of material that has been denied to the requester, unless providing such an estimate would harm an interest protected by the exemptions.
(c) The amount of information deleted will be indicated on the released portion of the record at the place in the record where the deletion is made, if technically feasible and unless the indication would harm an interest protected by the exemption under which the deletion is made.
§ 1204.14 Requests for access to confidential commercial information.
(a) General. Confidential commercial information provided to the Board by a business submitter will not be disclosed in response to a FOIA request except as required by this section.
(b) Definitions. (1) The term confidential commercial information means records provided to the government by a submitter that are believed to contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.
(2) The term submitter means any person or organization that provides confidential commercial information to the government. The term submitter includes, but is not limited to, corporations, state governments, and foreign governments.
(c) Notice to business submitters. The Board will provide a business submitter with prompt written notice of a request for its confidential commercial information whenever such written notice is required under paragraph (d) of this section. Exceptions to such written notice are at paragraph (h) of this section. This written notice will either describe the exact nature of the confidential information requested or provide copies of the records or parts of records containing the commercial information.
(d) When initial notice is required. (1) With respect to confidential commercial information received by the Board before January 1, 1988, the Board will give the business submitter notice of a request whenever:
(i) The information is less than 10 years old; or
(ii) The Board has reason to believe that releasing the information could reasonably be expected to cause substantial competitive harm.
(2) With respect to confidential commercial information received by the Board on or after January 1, 1988, the Board will give notice to the business submitter whenever:
(i) The business submitter has designated the information in good faith as commercially or financially sensitive information; or
(ii) The Board has reason to believe that releasing the information could reasonably be expected to cause substantial competitive harm.
(3) Notice of a request for commercially confidential information that was received by January 1, 1988, is required for a period of not more than 10 years after the date on which the information is submitted unless the business submitter requests, and provides justification for, a longer specific notice period. Whenever possible, the submitter’s claim of confidentially must be supported by a statement or certification, by an officer or authorized representative of the company, that the information in question is confidential commercial information and has not been disclosed to the public.
(e) Opportunity to object to disclosure. Through the notice described in paragraph (c) of this section, the Board will give a business submitter a reasonable period to provide a detailed statement of any objection to disclosure. The statement must specify all grounds for withholding any of the information under any exemption of the Freedom of Information Act. In addition, in the case of Exemption 4, the statement must state why the information is considered to be a trade secret, or to be commercial or financial information that is privileged or confidential. Information a business submitter provides under this paragraph may itself be subject to disclosure under the Freedom of Information Act.
(f) Notice of intent to release information. The Board will consider carefully a business submitter’s objections and specific grounds for claiming that the information should not be released before determining whether to release confidential commercial information. Whenever the Board decides to release confidential commercial information over the objection of a business submitter, it will forward to the business submitter a written notice that includes:
(1) A statement of the reasons for which the business submitter’s objections to the release were not sufficient;
(2) A description of the confidential commercial information to be released; and
(3) A specified release date. The Board will forward the notice of intent to release the information a reasonable number of days, as circumstances permit, before the specified date upon which release is expected. It will forward a copy of the release notice to the requester at the same time.
(g) Notice of Freedom of Information Act lawsuit. Whenever a requester files a lawsuit seeking to require release of business information covered by paragraph (d) of this section, the Board will notify the business submitter promptly.
(h) Exceptions to notice requirements. The notice requirements of this section do not apply when:
(1) The Board decides that the information should not be released;
(2) The information lawfully has been published or otherwise made available to the public;
(3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or
(4) The disclosure is required by an agency rule that:
(i) Was adopted after notice and public comment;
(ii) Specifies narrow classes of records submitted to the agency that are to be released under the FOIA; or
(iii) Provides in exceptional circumstances for notice when the submitter provides written justification, at the time the information is submitted or a reasonable time thereafter, that release of the information could reasonably be expected to cause substantial competitive harm.
(5) The information requested is not designated by the submitter as exempt from release according to agency regulations issued under this section, when the submitter has an opportunity to do so at the time of sending the information or a reasonable time thereafter, unless the agency has good reason to believe that disclosure of the information would result in competitive harm; or
(6) The designation made by the submitter according to Board regulations appears obviously frivolous; except that, in such case, the Board must provide the submitter with written notice of any final administrative release decision within a reasonable period before the stated release date.
§ 1204.15 Records of other agencies.
Requests for Board records that were created by another agency may, in appropriate circumstances, be referred to that agency for discussion or processing. In these instances, the Board will notify the requester.
Subpart C – Appeals
§ 1204.21 Submission.
(a) A person may appeal the following actions, or failure to act by the Clerk of the Board, a Regional Director, or Chief Administrative Judge:
(1) A denial of access to agency records;
(2) A denial of a request for a waiver or reduced fees;
(3) A decision that it is technically not possible to reproduce electronically maintained information in the requester’s preferred format;
(4) A denial of a request for expedited processing of information under this part; or
(5) A failure to decide a request for expedited processing within 10 workdays from the date of the request.
(b) Appeals must be filed with the Chairman, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0001 within 10 workdays from the date of the denial. Any appeal must include a copy of the initial request, a copy of the letter denying the request, and a statement of the reasons why the requester believes the denying employee erred.
§ 1204.22 Decision on appeal.
A decision on an appeal will be made within 20 workdays after the appeal is received. A decision not to provide expeditious processing of a request will be made within 15 workdays after the appeal is received. The decision will be in writing and will contain the reasons for the decision and information about the appellant’s right to seek court review of the denial.
PART 1205 – PRIVACY ACT REGULATIONS
Subpart A – General Provisions
§ 1205.1 Purpose.
This subpart implements the Privacy Act of 1974, 5 U.S.C. 552a, (“the Act”) by stating the procedures by which individuals may determine the existence of, seek access to, and request amendment of Board records concerning themselves, and by stating the requirements that apply to Board employees’ use and disclosure of those records.
§ 1205.2 Policy and scope.
The Board’s policy is to apply these regulations to all records that can be retrieved from a system of records under the Board’s control by using an individual’s name or by using a number, symbol, or other way to identify the individual. These regulations, however, do not govern the rights of the parties in adversary proceedings before the Board to obtain discovery from adverse parties; those rights are governed by part 1201 and part 1209 of this chapter. These regulations also are not meant to allow the alteration, either before or after the Board has issued a decision on an appeal, of evidence presented during the Board’s adjudication of the appeal.
§ 1205.3 Definitions.
The definitions of 5 U.S.C. 552a apply to this part. In addition, as used in this part:
(a) Inquiry means a request by an individual regarding whether the Board has a record that refers to that individual.
(b) Request for access means a request by an individual to look at or copy a record.
(c) Request for amendment means a request by an individual to change the substance of a particular record by addition, deletion, or other correction.
(d) Requester means the individual requesting access to or amendment of a record. The individual may be either the person to whom the requested record refers, a legal guardian acting on behalf of the individual, or a representative designated by that individual.
§ 1205.4 Disclosure of Privacy Act records.
(a) Except as provided in 5 U.S.C. 552a(b), the Board will not disclose any personal record information from systems of records it maintains to any individual other than the individual to whom the record refers, or to any other agency, without the express written consent of the individual to whom the record refers, or his or her representative or attorney.
(b) The Board’s staff will take necessary steps, in accordance with the law and these regulations, to protect the security and integrity of the records and the personal privacy interests of the subjects of the records.
Subpart B – Procedures for Obtaining Records
§ 1205.11 Access to Board records.
(a) Submission of request. Inquiries or requests for access to records must be submitted to the appropriate regional or field office of the Board, or to the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0001. If the requester has reason to believe that the records are located in a regional or field office, the request must be submitted to that office. Requests submitted to the regional or field office must be addressed to the Regional Director or Chief Administrative Judge at the appropriate regional or field office listed in appendix II of 5 CFR part 1201.
(b) Form. Each submission must contain the following information:
(1) The name, address, and telephone number of the individual to whom the record refers;
(2) The name, address, and telephone number of the individual making the request if the requester is someone other than the person to whom the record refers, such as a legal guardian or an attorney, along with evidence of the relationship. Evidence of the relationship may consist of an authenticated copy of:
(i) The birth certificate of the minor child, and
(ii) The court document appointing the individual legal guardian, or
(iii) An agreement for representation signed by the individual to whom the record refers;
(3) Any additional information that may assist the Board in responding to the request, such as the name of the agency that may have taken an action against an individual, or the docket number of the individual’s case;
(4) The date of the inquiry or request;
(5) The inquirer’s or requester’s signature; and
(6) A conspicuous indication, both on the envelope and the letter, that the inquiry is a “PRIVACY ACT REQUEST”.
(c) Identification. Each submission must follow the identification requirements stated in § 1205.13 of this part.
(d) Payment. Records usually will not be released until fees have been received.
§ 1205.12 Time limits and determinations.
(a) Board determinations. The Board will acknowledge the request for access to records and make a determination on whether to grant it within 20 workdays after it receives the request, except under the unusual circumstances described below:
(1) When the Board needs to obtain the records from other Board offices or a Federal Records Center;
(2) When it needs to obtain and examine a large number of records;
(3) When it needs to consult with another agency that has a substantial interest in the records requested; or
(4) When other extenuating circumstances prevent the Board from processing the request within the 20-day period.
(b) Time extensions. When unusual circumstances exist, the Board may extend the time for making a determination on the request for no more than 10 additional workdays. If it does so, it will notify the requester of the extension.
(c) Improper request. If a request or an appeal is not properly labeled, does not contain the necessary identifying information, or is submitted to the wrong office, the time period for processing the request will begin when the correct official receives the properly labeled request and the necessary information.
(d) Determining officials. The Clerk of the Board, a Regional Director, or a Chief Administrative Judge will make determinations on requests.
§ 1205.13 Identification.
(a) In person. Each requester must present satisfactory proof of identity. The following items, which are listed in order of the Board’s preference, are acceptable proof of the requester’s identity when the request is made in person:
(1) A document showing the requester’s photograph;
(2) A document showing the requester’s signature; or
(3) If the items described in paragraphs (a)(1) and (2) of the section are not available, a signed statement in which the requester asserts his or her identity and acknowledges understanding that misrepresentation of identity in order to obtain a record is a misdemeanor and subject to a fine of up to $5,000 under 5 U.S.C. 552a(i)(3).
(b) By mail. The identification of a requester making a request by mail must be certified by a notary public or equivalent official or contain other information to identify the requester. Information could be the date of birth of the requester and some item of information in the record that only the requester would be likely to know.
(c) Parents of minors, legal guardians, and representatives. Parents of minors, legal guardians, and representatives must submit identification under paragraph (a) or (b) of this section. Additionally, they must present an authenticated copy of:
(1) The minor’s birth certificate, and
(2) The court order of guardianship, or
(3) The agreement of representation, where appropriate.
§ 1205.14 Granting access.
(a) The Board may allow a requester to inspect records through either of the following methods:
(1) It may permit the requester to inspect the records personally during normal business hours at a Board office or other suitable Federal facility closer to the requester; or
(2) It may mail copies of the records to the requester.
(b) A requester seeking personal access to records may be accompanied by another individual of the requester’s choice. Under those circumstances, however, the requester must sign a statement authorizing the discussion and presentation of the record in the accompanying individuals presence.
§ 1205.15 Denying access.
(a) Basis. In accordance with 5 U.S.C. 552a(k)(2), the Board may deny access to records that are of an investigatory nature and that are compiled for law enforcement purposes. Those requests will be denied only where access to them would otherwise be unavailable under Exemption (b)(7) of the Freedom of Information Act.
(b) Form. All denials of access under this section will be made in writing and will notify the requester of the right to judicial review.
§ 1205.16 Fees.
(a) No fees will be charged except for making copies of records.
(b) Photocopies of records duplicated by the Board will be subject to a charge of 20 cents a page.
(c) If the fee to be assessed for any request is less than $100 (the cost to the Board of processing and collecting the fee), no charge will be made to the requester.
(d) Fees for copying audio tapes and computer records will be charged at a rate representing the actual costs to the Board, as shown in paragraphs (d)(1) through (d)(3) of this section.
(1) Audio tapes will be provided at a charge not to exceed $15 for each cassette tape.
(2) Computer printouts will be provided at a charge of 10 cents a page.
(3) Records reproduced on computer tapes, computer diskettes, or other electronic media, will be provided at the actual cost to the Board.
(e) The Board will provide one copy of the amended parts of any record it amends free of charge as evidence of the amendment.
Subpart C – Amendment of Records
§ 1205.21 Request for amendment.
A request for amendment of a record must be submitted to the Regional Director or Chief Administrative Judge of the appropriate regional or field office, or to the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0001, depending on which office has custody of the record. The request must be in writing, must be identified conspicuously on the outside of the envelope and the letter as a “PRIVACY ACT REQUEST,” and must include the following information:
(a) An identification of the record to be amended;
(b) A description of the amendment requested; and
(c) A statement of the basis for the amendment, along with supporting documentation, if any.
§ 1205.22 Action on request.
(a) Amendment granted. If the Board grants the request for amendment, it will notify the requester and provide him or her with a copy of the amendment.
(b) Amendment denied. If the Board denies the request for amendment in whole or in part, it will provide the requester with a written notice that includes the following information:
(1) The basis for the denial; and
(2) The procedures for appealing the denial.
§ 1205.23 Time limits.
The Clerk of the Board, Regional Director, or Chief Administrative Judge will acknowledge a request for amendment within 10 workdays of receipt of the request in the appropriate office except under the unusual circumstances described in paragraphs (a)(1) through (a)(4) of § 1205.12 of this part.
Subpart D – Appeals
§ 1205.31 Submitting appeal.
(a) A partial or complete denial, by the Clerk of the Board, by the Regional Director, or by the Chief Administrative Judge, of a request for amendment may be appealed to the Chairman, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0001 within 10 workdays from the date of the denial.
(b) Any appeal must be in writing, must be clearly and conspicuously identified as a Privacy Act appeal on both the envelope and letter, and must include:
(1) A copy of the original request for amendment of the record;
(2) A copy of the denial; and
(3) A statement of the reasons why the original denial should be overruled.
§ 1205.32 Decision on appeal.
(a) The Chairman will decide the appeal within 30 workdays unless the Chairman determines that there is good cause for extension of that deadline. If an appeal is improperly labeled, does not contain the necessary information, or is submitted to an inappropriate official, the time period for processing that appeal will begin when the Chairman receives the appeal and the necessary information.
(b) If the request for amendment of a record is granted on appeal, the Chairman will direct that the amendment be made. A copy of the amended record will be provided to the requester.
(c) If the request for amendment of a record is denied, the Chairman will notify the requester of the denial and will inform the requester of:
(1) The basis for the denial;
(2) The right to judicial review of the decision under 5 U.S.C. 552a(g)(1)(A); and
(3) The right to file a concise statement with the Board stating the reasons why the requester disagrees with the denial. This statement will become a part of the requester’s record.
PART 1206 – OPEN MEETINGS
Subpart A – Purpose and Policy
§ 1206.1 Purpose.
The purpose of this part is to prescribe the procedures by which the Board will conduct open meetings in accordance with the Government in the Sunshine Act (5 U.S.C. 552b) (“the Act”).
§ 1206.2 Policy.
The Board will provide the public with the fullest practicable information regarding its decision-making processes, while protecting individuals’ rights and the Board’s ability to carry out its responsibilities. Meetings at which the Board members jointly conduct or dispose of official business are presumptively open to the public. The Board will close those meetings in whole or in part only in accordance with the exemptions provided under 5 U.S.C. 552b(c), and only when doing so is in the public interest.
§ 1206.3 Definitions.
The following definitions apply to this part:
(a) Meeting means deliberations of at least two Board members that determine or result in the joint conduct of official Board business.
(b) Member means one of the members of the Merit Systems Protection Board.
Subpart B – Procedures
§ 1206.4 Notice of meeting.
(a) Notice of a Board meeting will be published in the
(1) The time of the meeting;
(2) The place where the meeting will be held;
(3) The subject and agenda of the meeting;
(4) Whether the meeting is to be open to the public or closed; and
(5) The name and telephone number of a Board official responsible for receiving inquiries regarding the meeting.
(b) The Board, by majority vote, may provide less than one week’s notice. When it does so, however, it will provide notice of the meeting at the earliest practicable time.
§ 1206.5 Change in meeting plans after notice.
(a) After notice of a meeting has been published, the Board may change the time or place of the meeting only if it announces the change publicly at the earliest practicable time.
(b) After notice of a meeting has been published, the Board may not change either the subject matter of the meeting or the decision that the meeting will be open to the public or closed unless both of the following conditions are met:
(1) By majority, recorded vote, the Board members determine that Board business requires the change and that no earlier announcement of the change was possible; and
(2) Notice of the change, and of the individual Board members’ vote, is published in the
§ 1206.6 Decision to close meeting.
(a) Basis. The Board, by majority vote, may decide to close a meeting in accordance with the provisions of 5 U.S.C. 552b(c)(1) to 552b(c)(10) when closing the meeting is in the public interest.
(b) General Counsel certification. For every meeting that is closed to the public in whole or in part, the General Counsel will certify that closing the meeting is proper, and will state the basis for that opinion.
(c) Vote. Within one day after voting to close a meeting, the Board will make publicly available a record reflecting the vote of each member. In addition, within one day after any vote to close a portion or portions of a meeting to the public, the Board will make publicly available a full written explanation of its decision to close the meeting, together with a list naming all persons expected to attend the meeting and identifying their affiliation, unless that disclosure would reveal the information that the meeting was closed to protect.
§ 1206.7 Transcripts, recordings, or minutes of open and closed meetings; public availability; retention.
(a) Closed meetings. (1) For every meeting, or portion thereof, closed pursuant to this part the presiding officer shall prepare a statement setting forth the time and place of the meeting and the persons present, which statement shall be retained by the Board. For each such meeting, or portion thereof, the Board shall maintain a copy of the General Counsel’s certification under § 1206.6(b) of this part, a statement from the presiding official specifying the time and place of the meeting and naming the persons present, a record (which may be part of the transcript) of all votes and all documents considered at the meeting, and a complete transcript or electronic recording of the proceedings, except that for meetings or portions of meetings closed pursuant to section (10) of 5 U.S.C. 552b(c), the Board may maintain either a transcript, electronic recording, or a set of minutes. In lieu of a transcript or electronic recording, a set of minutes shall fully and accurately summarize any action taken, the reasons therefore and views thereon, documents considered and the members’ vote on each roll call vote, if any.
(2) The Board shall make promptly available to the public copies of transcripts, recordings, or minutes maintained as provided in accordance with this paragraph (a), except to the extent the items therein contain information which the Board determines may be withheld pursuant to the provisions of 5 U.S.C. 552b(c). Copies of transcripts or minutes, or transcriptions of electronic recordings including the identification of speakers, shall to the extent determined to be publicly available, be furnished to any person, subject to the payment of duplication costs or the actual cost of transcription.
(3) The Board shall maintain a complete verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each meeting, or portion of a meeting, closed to the public, for a period of at least two (2) years after such meeting or until one (1) year after the conclusion of any Board proceeding with respect to which the meeting or portion was held whichever occurs later.
(b) Open meetings. Transcripts or other records will be made of all open meetings of the Board. Those records will be made available upon request at a fee representing the Board’s actual cost of making them available.
§ 1206.8 Providing information to the public.
Information available to the public under this part will be made available by the Office of the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419. Individuals or organizations with a special interest in activities of the Board may ask the Office of the Clerk to have them placed on a mailing list for receipt of information available under this part.
§ 1206.9 Procedures for expedited closing of meetings.
Instead of following the procedures described in §§ 1206.4 through 1206.8 of this part, and in §§ 1206.11 and 1206.12, the Board may expedite the closing of its meetings under the following conditions by using the following procedures:
(a) Finding. (1) Most regular Board business consists of reviewing initial decisions in cases adjudicated after an opportunity for a hearing has been provided. Based on a review of this circumstance, the legislative history of the Civil Service Reform Act of 1978 (Pub. L. 95-454), the Government in the Sunshine Act (5 U.S.C. 552b), and the Board’s regulations at 5 CFR part 1201, the Board finds that a majority of its meetings may properly be closed to the public under 5 U.S.C. 552b(c)(10) and 552b(d)(4).
(2) Absent a compelling public interest to the contrary, meetings or portions of meetings that can be expected to be closed under these procedures include meetings held to consider the following: Petitions for review or cases that have been or may be reopened under 5 CFR 1201.114 through 1201.117; proposals to take action against administrative law judges under 5 CFR 1201.131 through 1201.136; and actions brought by the Special Counsel under 5 CFR 1201.129.
(b) Announcement. The Board will announce publicly, at the earliest practicable time, the time, place, and subject matter of meetings or portions of meetings that are closed under this provision.
(c) Procedure for closing meetings under this section. At the beginning of a meeting or portion of a meeting that is to be closed under this section, the Board may, by recorded vote of two of its members, decide to close the meeting or a portion of it to public observation. The Board may take this action, however, only after it receives a certification by the General Counsel under § 1206.6(b) of this part.
(d) Record Availability. When the Board has closed a meeting or portion of a meeting under this paragraph, it will make the following available as soon as practicable:
(1) A written record reflecting the vote of each participating member of the Board with respect to closing the meeting; and
(2) The General Counsel certification under § 1206.6(b).
Subpart C – Conduct of Meetings
§ 1206.11 Meeting place.
The Board will hold open meetings in meeting rooms designated in the public announcements of those meetings. Whenever the number of observers is greater than can be accommodated in the designated meeting room, however, it will make alternative facilities available to the extent possible.
§ 1206.12 Role of observers.
The public may attend open meetings for the sole purpose of observation. Observers may not participate in the meetings unless they are expressly invited to do so. They also may not create distractions that interfere with the conduct and disposition of Board business, and they may be asked to leave if they do so. Observers of meetings that are partially closed must leave the meeting room when they are asked to do so.
PART 1207 – ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PROGRAMS OR ACTIVITIES CONDUCTED BY THE MERIT SYSTEMS PROTECTION BOARD
§ 1207.101 Purpose.
The purpose of this part is to effectuate section 119 of the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of disability in programs or activities conducted by Executive agencies or the United States Postal Service.
§ 1207.102 Application.
This part applies to all programs or activities conducted by the agency, except for programs or activities conducted outside the United States that do not involve individuals with disabilities in the United States.
§ 1207.103 Definitions.
(a) Assistant Attorney General means the Assistant Attorney General, Civil Rights Division, United States Department of Justice.
(b) Auxiliary aids means services or devices that enable persons with impaired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency. For example, auxiliary aids useful for persons with impaired vision include readers, Brailled materials, audio recordings, and other similar services and devices. Auxiliary aids useful for persons with impaired hearing include telephone handset amplifiers, telephones compatible with hearing aids, telecommunication devices for deaf persons (TDDs), interpreters, notetakers, written materials, and other similar services and devices.
(c) Complete complaint means a written statement that contains the complainant’s name and address and describes the agency’s alleged discriminatory action in sufficient detail to inform the agency of the nature and date of the alleged violation of section 504. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if possible) the alleged victims of discrimination.
(d) Days means calendar days, unless otherwise stated.
(e) Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.
(f) Historic preservation programs means programs conducted by the agency that have preservation of historic properties as a primary purpose.
(g) Historic properties means those properties that are listed or eligible for listing in the National Register of Historic Places or properties designated as historic under a statute of the appropriate State or local government body.
(h) Individual with a disability means any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. The following phrases used in this definition are further defined as follows:
(1) Physical or mental impairment includes –
(i) Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: Neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or
(ii) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
(iii) Also, physical and mental impairment includes, but is not limited to, such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism.
(2) Major life activities include functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
(3) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
(4) Is regarded as having an impairment means –
(i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by the agency as constituting such a limitation;
(ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or
(iii) Has none of the impairments defined in paragraph (i) of this definition but is treated by the agency as having such an impairment.
(i) Qualified individual with a disability means –
(1) With respect to any agency program or activity under which a person is required to perform services or to achieve a level of accomplishment, an individual with a disability who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the agency can demonstrate would result in a fundamental alteration in its nature;
(2) With respect to any other program or activity, an individual with a disability who meets the essential eligibility requirements for participation in, or receipt of benefits from, that program or activity; and
(3) Qualified disabled person as that term is defined for purposes of employment in 29 CFR 1614.203, which is made applicable to this part by § 1207.130.
(j) Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93-516, 88 Stat. 1617); the Rehabilitation, Comprehensive Services, and Developmental Disabilities Amendments of 1978 (Pub. L. 95-602, 92 Stat. 2955); and the Rehabilitation Act Amendments of 1986 (Pub. L. 99-506, 100 Stat. 1810). As used in this part, section 504 applies only to programs or activities conducted by Executive agencies and not to federally assisted programs.
§§ 1207.104-1207.109 [Reserved]
§ 1207.110 Notice.
The agency shall make available to employees, applicants, participants, and other interested parties such information regarding the provisions of this part and its applicability to the programs or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protections against discrimination assured them by section 504 and this part.
§§ 1207.111-1207.119 [Reserved]
§ 1207.120 General prohibitions against discrimination.
(a) No qualified individual with a disability shall, on the basis of such disability, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
(b)(1) The agency, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability –
(i) Deny a qualified individual with a disability the opportunity to participate in or benefit from the aid, benefit, or service;
(ii) Afford a qualified individual with a disability an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;
(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achievement as that provided to others;
(iv) Provide different or separate aid, benefits, or services to individuals with disabilities or to any class of individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aid, benefits, or services that are as effective as those provided to others;
(v) Deny a qualified individual with a disability the opportunity to participate as a member of planning or advisory boards;
(vi) Otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service.
(2) A qualified individual with a disability may not be excluded from participation in any of the agency’s programs or activities, even though permissibly separate or different programs or activities exist.
(3) The agency may not, directly or through contractual or other arrangements, utilize criteria or methods of administration the purpose or effect of which would –
(i) Subject qualified individuals with disabilities to discrimination on the basis of disability; or
(ii) Defeat or substantially impair accomplishment of the objectives of a program or activity with respect to individuals with disabilities.
(4) The agency may not, in determining the site or location of a facility, make selections the purpose or effect of which would –
(i) Exclude individuals with disabilities from, deny them the benefits of, or otherwise subject them to discrimination under any program or activity conducted by the agency, or;
(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with disabilities.
(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified individuals with disabilities to discrimination on the basis of disability.
(6) The agency may not administer a licensing or certification program in a manner that subjects qualified individuals with disabilities to discrimination on the basis of disability, nor may the agency establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to discrimination on the basis of disability. However, the programs or activities of entities that are licensed or certified by the agency are not, themselves, covered by this part.
(c) The exclusion of nondisabled persons from the benefits of a program limited by Federal statute or Executive order to individuals with disabilities or the exclusion of a specific class of individuals with disabilities from a program limited by Federal statute or Executive order to a different class of individuals with disabilities is not prohibited by this part.
(d) The agency shall administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
§§ 1207.121-1207.129 [Reserved]
§ 1207.130 Employment.
No qualified individual with a disability shall, on the basis of such disability, be subject to discrimination in employment under any program or activity conducted by the agency. The definitions, requirements, and procedures of section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791), as established by the Equal Employment Opportunity Commission in 29 CFR part 1614, shall apply to employment in federally conducted programs or activities.
§§ 1207.131-1207.139 [Reserved]
§ 1207.140 Program accessibility: Discrimination prohibited.
Except as otherwise provided in § 1207.150, no qualified individual with disabilities shall, because the agency’s facilities are inaccessible to or unusable by individuals with disabilities, be denied the benefits of, be excluded from participation in, or otherwise be subjected to discrimination under any program or activity conducted by the agency.
§§ 1207.141-1207.149 [Reserved]
§ 1207.150 Program accessibility: Existing facilities.
(a) General. The agency shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not –
(1) Necessarily require the agency to make each of its existing facilities accessible to and usable by individuals with disabilities;
(2) In the case of historic preservation programs, require the agency to take any action that would result in a substantial impairment of significant historic features of an historic property; or
(3) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 1207.150(a) would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that individuals with disabilities receive the benefits and services of the program or activity.
(b) Methods – (1) General. The agency may comply with the requirements of this section through such means as redesign of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock, or any other methods that result in making its programs or activities readily accessible to and usable by individuals with disabilities. The agency is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section. The agency, in making alterations to existing buildings, shall meet accessibility requirements to the extent compelled by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), and any regulations implementing it. In choosing among available methods for meeting the requirements of this section, the agency shall give priority to those methods that offer programs and activities to qualified individuals with disabilities in the most integrated setting appropriate.
(2) Historic preservation programs. In meeting the requirements of § 1207.150(a) in historic preservation programs, the agency shall give priority to methods that provide physical access to individuals with disabilities. In cases where a physical alteration to an historic property is not required because of § 1207.150(a)(2) or (3), alternative methods of achieving program accessibility include –
(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot otherwise be made accessible;
(ii) Assigning persons to guide individuals with disabilities into or through portions of historic properties that cannot otherwise be made accessible; or
(iii) Adopting other innovative methods.
§ 1207.151 Program accessibility: New construction and alterations.
Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency shall be designed, constructed, or altered so as to be readily accessible to and usable by individuals with disabilities. The definitions, requirements, and standards of the Architectural Barriers Act (42 U.S.C. 4151-4157), as established in 41 CFR 101-19.600 to 101-19.607, apply to buildings covered by this section.
§§ 1207.152-1207.159 [Reserved]
§ 1207.160 Communications.
(a) The agency shall take appropriate steps to ensure effective communication with applicants, participants, personnel of other Federal entities, and members of the public.
(1) The agency shall furnish appropriate auxiliary aids where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.
(i) In determining what type of auxiliary aid is necessary, the agency shall give primary consideration to the requests of the individual with a disability.
(ii) The agency need not provide individually prescribed devices, readers for personal use or study, or other devices of a personal nature.
(2) Where the agency communicates with parties by telephone, telecommunication devices for deaf persons or equally effective telecommunication systems shall be used to communicate with persons with impaired hearing.
(b) The agency shall ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities.
(c) The agency shall provide signage at a primary entrance to each of its inaccessible facilities, directing users to a location at which they can obtain information about accessible facilities. The international symbol for accessibility shall be used at each primary entrance of an accessible facility.
(d) This section does not require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the proposed action would fundamentally alter the program or activity or would result in undue financial and administrative burdens, the agency has the burden of proving that compliance with § 1207.160 would result in such alteration or burdens. The decision that compliance would result in such alteration or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and operation of the conducted program or activity and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that, to the maximum extent possible, individuals with disabilities receive the benefits and services of the program or activity.
§§ 1207.161-1207.169 [Reserved]
§ 1207.170 Compliance procedures.
(a) The agency shall process complaints alleging violations of section 504 with respect to employment according to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1614 pursuant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).
(b) Allegations of discrimination in the adjudication of a Board case. (1) When a party to a case pending before any of the Board’s judges believes he or she has been subjected to discrimination on the basis of disability in the adjudication of the case, the party may raise the allegation in a pleading filed with the judge and served on all other parties in accordance with 5 CFR 1201.26(b)(2).
(2) An allegation of discrimination in the adjudication of a Board case must be raised within 10 days of the alleged act of discrimination or within 10 days from the date the complainant should reasonably have known of the alleged discrimination. If the complainant does not submit a complaint within that time period, it will be dismissed as untimely filed unless a good reason for the delay is shown. The pleading must be clearly marked “5 CFR part 1207 allegation of discrimination in the adjudication of a Board case.”
(3) The judge to whom the case is assigned shall decide the merits of any timely allegation that is raised at this stage of adjudication, and shall make findings and conclusions regarding the allegation either in an interim order or in the initial decision, recommended decision, or recommendation. Any request for reconsideration of the administrative judge’s decision on the disability discrimination claim must be filed in accordance with the requirements of 5 CFR 1201.114 and 1201.115.
(4) If the judge to whom the case was assigned has issued the initial decision, recommended decision, or recommendation by the time the party learns of the alleged discrimination, the party may raise the allegation in a petition for review, cross petition for review, or response to the petition or cross petition. The petition for review, cross petition for review or response to the petition or cross petition must be clearly marked “5 CFR part 1207 allegation of discrimination in the adjudication of a Board case.”
(5) The Board shall decide the merits of any timely allegation that is raised at this stage of adjudication in a final decision.
(c) All complaints of discrimination on the basis of disability in programs and activities conducted by the agency, except for those described in paragraphs (a) and (b) of this section, shall be filed under the procedures described in this paragraph.
(1) Who may file. Any person who believes that he or she has been subjected to discrimination prohibited by this part, or authorized representative of such person, may file a complaint. Any person who believes that any specific class of persons has been subjected to discrimination prohibited by this part and who is a member of that class or the authorized representative of a member of that class may file a complaint. A charge on behalf of a person or member of a class of persons claiming to be aggrieved may be made by any person, agency or organization.
(2) Where and when to file. Complaints shall be filed with the Director, Office of Equal Employment Opportunity (EEO Director), Merit Systems Protection Board, 1615 M Street, NW., Washington DC 20419, or e-mailed to [email protected], within thirty-five (35) calendar days of the alleged act of discrimination. A complaint filed by personal delivery is considered filed on the date it is received by the EEO Director. The date of filing by facsimile or e-mail is the date the facsimile or e-mail is sent. The date of filing by mail is determined by the postmark date; if no legible postmark date appears on the mailing, the submission is presumed to have been mailed five days (excluding days on which the Board is closed for business) before its receipt. The date of filing by commercial overnight delivery is the date the document was delivered to the commercial overnight delivery service. The agency shall extend the time period for filing a complaint upon a showing of good cause. For example, the agency shall extend this time limit if a complainant shows that he or she was prevented by circumstances beyond his or her control from submitting the matter within the time limits.
(3) Acceptance of complaint. (i) The agency shall accept a complete complaint that is filed in accordance with paragraph (c) of this section and over which it has jurisdiction. The EEO Director shall notify the complainant of receipt and acceptance of the complaint.
(ii) If the EEO Director receives a complaint that is not complete, he or she shall notify the complainant that additional information is needed. If the complainant fails to complete the complaint and return it to the EEO Director within 15 days of his or her receipt of the request for additional information, the EEO Director shall dismiss the complaint with prejudice and shall so inform the complainant.
(4) Within 60 days of the receipt of a complete complaint for which it has jurisdiction, the EEO Director shall notify the complainant of the results of the investigation in an initial decision containing –
(i) Findings of fact and conclusions of law;
(ii) When applicable, a description of a remedy for each violation found; and
(iii) A notice of the right to appeal.
(5) Any appeal of the EEO Director’s initial decision must be filed with the Chairman of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419 by the complainant within 35 days of the date the EEO Director issues the decision required by § 1207.170(c)(4). The agency may extend this time for good cause when a complainant shows that circumstances beyond his or her control prevented the filing of an appeal within the prescribed time limit. An appeal filed by personal delivery is considered filed on the date it is received by the Chairman. The date of filing by facsimile is the date of the facsimile. The date of filing by mail is determined by the postmark date; if no legible postmark date appears on the mailing, the submission is presumed to have been mailed five days (excluding days on which the Board is closed for business) before its receipt. The date of filing by commercial overnight delivery is the date the document was delivered to the commercial overnight delivery service. The appeal should be clearly marked “Appeal of Section 504 Decision” and must contain specific objections explaining why the person believes the initial decision was factually or legally wrong. A copy of the initial decision being appealed should be attached to the appeal letter.
(6) A timely appeal shall be decided by the Chairman unless the Chairman determines, in his or her discretion, that the appeal raises policy issues and that the nature of those policy issues warrants a decision by the full Board. The full Board shall then decide such appeals.
(7) The Chairman shall notify the complainant of the results of the appeal within sixty (60) days of the receipt of the request. If the Chairman determines that he or she needs additional information from the complainant, he or she shall have sixty (60) days from the date he or she receives the additional information to make his or her determination on the appeal.
(8) The time limit stated in paragraph (c)(2) may be extended by the EEO Director to a period of up to 180 days, and may be extended further with the permission of the Assistant Attorney General. The time limit stated in paragraph (c)(5) may be extended by the Chairman to a period of up to 180 days, and may be extended further with the permission of the Assistant Attorney General.
(9) The agency may delegate its authority for conducting complaint investigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.
(d) The agency shall notify the Architectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151-4157), is not readily accessible to and usable by individuals with disabilities.
(e) If the agency receives a complaint over which it does not have jurisdiction, it shall promptly notify the complainant and shall make reasonable efforts to refer the complaint to the appropriate entity.
§§ 1207.171-1207.999 [Reserved]
PART 1208 – PRACTICES AND PROCEDURES FOR APPEALS UNDER THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS EMPLOYMENT OPPORTUNITIES ACT
Subpart A – Jurisdiction and Definitions
§ 1208.1 Scope.
This part governs appeals filed with the Board under the provisions of 38 U.S.C. 4324, as enacted by the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), Public Law 103-353, as amended, or under the provisions of 5 U.S.C. 3330a, as enacted by the Veterans Employment Opportunities Act of 1998 (VEOA), Public Law 105-339. With respect to USERRA appeals, this part applies to any appeal filed with the Board on or after October 13, 1994, without regard as to whether the alleged violation occurred before, on, or after October 13, 1994. With respect to VEOA appeals, this part applies to any appeal filed with the Board which alleges that a violation occurred on or after October 31, 1998.
§ 1208.2 Jurisdiction.
(a) USERRA. Under 38 U.S.C. 4324, a person entitled to the rights and benefits provided by chapter 43 of title 38, United States Code, may file an appeal with the Board alleging that a Federal agency employer or the Office of Personnel Management has failed or refused, or is about to fail or refuse, to comply with a provision of that chapter (other than a provision relating to benefits under the Thrift Savings Plan for Federal employees). In general, the provisions of chapter 43 of title 38 that apply to Federal employees guarantee various reemployment rights following a period of service in a uniformed service, provided the employee satisfies the requirements for coverage under that chapter. In addition, chapter 43 of title 38 prohibits discrimination based on a person’s service – or application or obligation for service – in a uniformed service (38 U.S.C. 4311). This prohibition applies with respect to initial employment, reemployment, retention in employment, promotion, or any benefit of employment.
(b) VEOA. Under 5 U.S.C. 3330a, a preference eligible who alleges that a Federal agency has violated his rights under any statute or regulation relating to veterans’ preference may file an appeal with the Board, provided that he has satisfied the statutory requirements for first filing a complaint with the Secretary of Labor and allowing the Secretary at least 60 days to attempt to resolve the complaint.
§ 1208.3 Application of 5 CFR part 1201.
Except as expressly provided in this part, the Board will apply subparts A (Jurisdiction and Definitions), B (Procedures for Appellate Cases), C (Petitions for Review of Initial Decisions), and F (Enforcement of Final Decisions and Orders) of 5 CFR part 1201 to appeals governed by this part. The Board will apply the provisions of subpart H (Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation Expenses, Where Applicable) and Damages (Consequential, Liquidated, and Compensatory)) of 5 CFR part 1201 regarding awards of attorney fees and liquidated damages to appeals governed by this part.
§ 1208.4 Definitions.
(a) Appeal. “Appeal” means a request for review of an agency action (the same meaning as in 5 CFR § 1201.4(f)) and includes a “complaint” or “action” as those terms are used in USERRA (38 U.S.C. 4324) and a “complaint” or “appeal” as those terms are used in VEOA (5 U.S.C. 3330a).
(b) Preference eligible. “Preference eligible” is defined in 5 U.S.C. 2108.
(c) USERRA appeal. “USERRA appeal” means an appeal filed under 38 U.S.C. 4324, as enacted by the Uniformed Services Employment and Reemployment Rights Act of 1994 (Public Law 103-353), as amended. The term includes an appeal that alleges a violation of a predecessor statutory provision of chapter 43 of title 38, United States Code.
(d) VEOA appeal. “VEOA appeal” means an appeal filed under 5 U.S.C. 3330a, as enacted by the Veterans Employment Opportunities Act of 1998 (Public Law 105-339).
Subpart B – USERRA Appeals
§ 1208.11 Choice of procedure under USERRA; exhaustion requirement.
(a) Choice of procedure. An appellant may file a USERRA appeal directly with the Board under this subpart or may file a complaint with the Secretary of Labor under 38 U.S.C. 4322.
(b) Exhaustion requirement. If an appellant files a complaint with the Secretary of Labor under 38 U.S.C. 4322, the appellant may not file a USERRA appeal with the Board until the Secretary notifies the appellant in accordance with 38 U.S.C. 4322(e) that the Secretary’s efforts have not resolved the complaint. An appellant who seeks assistance from the Secretary of Labor under 38 U.S.C. 4321 but does not file a complaint with the Secretary under 38 U.S.C. 4322 is not subject to the exhaustion requirement of this paragraph.
(c) Appeals after exhaustion of Department of Labor procedure. When an appellant receives notice from the Secretary of Labor in accordance with 38 U.S.C. 4322(e) that the Secretary’s efforts have not resolved the complaint, the appellant may file a USERRA appeal directly with the Board or may ask the Secretary to refer the complaint to the Special Counsel. If the Special Counsel agrees to represent the appellant, the Special Counsel may file a USERRA appeal directly with the Board. If the Special Counsel does not agree to represent the appellant, the appellant may file a USERRA appeal directly with the Board.
§ 1208.12 Time of filing.
Under chapter 43 of title 38, United States Code, there is no time limit for filing a USERRA appeal with the Board. However, the Board encourages appellants to file a USERRA appeal as soon as possible after the date of the alleged violation or, if a complaint is filed with the Secretary of Labor, as soon as possible after receiving notice from the Secretary in accordance with 38 U.S.C. 4322(e) that the Secretary’s efforts have not resolved the complaint, or, if the Secretary has referred the complaint to the Special Counsel and the Special Counsel does not agree to represent the appellant, as soon as possible after receiving the Special Counsel’s notice.
§ 1208.13 Content of appeal; request for hearing.
(a) Content. A USERRA appeal may be in any format, including letter form, but must contain the following:
(1) The nine (9) items or types of information required in 5 CFR 1201.24(a)(1) through (a)(9);
(2) Evidence or argument that the appellant has performed service in a uniformed service, including the dates of such service (or, where applicable, has applied for or has an obligation to perform such service), and that the appellant otherwise satisfies the requirements for coverage under chapter 43 of title 38, United States Code;
(3) A statement describing in detail the basis for the appeal, that is, the protected right or benefit that was allegedly denied, including reference to the provision(s) of chapter 43 of title 38, United States Code, allegedly violated if possible.
(4) If the appellant filed a complaint with the Secretary of Labor under 38 U.S.C. 4322(a), evidence of notice under 38 U.S.C. 4322(e) that the Secretary’s efforts have not resolved the complaint (a copy of the Secretary’s notice satisfies this requirement); and
(5) If the appellant’s complaint was referred to the Special Counsel and the appellant has received notice that the Special Counsel will not represent the appellant before the Board, evidence of the Special Counsel’s notice (a copy of the Special Counsel’s notice satisfies this requirement).
(b) Request for hearing. An appellant must submit any request for a hearing with the USERRA appeal, or within any other time period the judge sets. A hearing may be provided to the appellant once the Board’s jurisdiction over the appeal is established. The judge may also order a hearing if necessary to resolve issues of jurisdiction. The appellant has the burden of proof with respect to issues of jurisdiction (5 CFR 1201.56(a)(2)(i)).
(c) Electronic filing. An appeal may be filed electronically by using the Board’s e-Appeal site (https://e-appeal.mspb.gov) in accordance with § 1201.14 of this chapter.
§ 1208.14 Representation by Special Counsel.
The Special Counsel may represent an appellant in a USERRA appeal before the Board. A written statement (in any format) that the appellant submitted a written request to the Secretary of Labor that the appellant’s complaint under 38 U.S.C. 4322(a) be referred to the Special Counsel for litigation before the Board, and that the Special Counsel has agreed to represent the appellant, will be accepted as the written designation of representative required by 5 CFR 1201.31(a). The designation of representative may be filed by electronic filing, provided the requirements of § 1201.14 of this chapter are satisfied.
§ 1208.15 Remedies.
(a) Order for compliance. If the Board determines that a Federal agency employer or the Office of Personnel
Management has not complied with a provision or provisions of chapter 43 of title 38, United States Code (other than a provision relating to benefits under the Thrift Savings Plan for Federal employees), the decision of the Board (either an initial decision of a judge under 5 CFR 1201.111 or a final Board decision under 5 CFR 1201.117) will order the Federal agency employer or the Office of Personnel Management, as applicable, to comply with such provision(s) and to compensate the appellant for any loss of wages or benefits suffered by the appellant because of such lack of compliance. Under 38 U.S.C. 4324(c)(3), any compensation received by the appellant pursuant to the Board’s order shall be in addition to any other right or benefit provided for by chapter 43 of title 38, United States Code, and shall not diminish any such right or benefit.
(b) Attorney fees and expenses. If the Board issues a decision ordering compliance under paragraph (a) of this section, the Board has discretion to order payment of reasonable attorney fees, expert witness fees, and other litigation expenses under 38 U.S.C. 4324(c)(4). The provisions of subpart H of part 1201 shall govern any proceeding for attorney fees and expenses.
§ 1208.16 Appeals under another law, rule, or regulation.
Nothing in USERRA prevents an appellant who may appeal an agency action to the Board under any other law, rule, or regulation from raising a claim of a USERRA violation in that appeal. The Board will treat such a claim as an affirmative defense that the agency action was not in accordance with law (5 CFR 1201.56(b)(3)).
Subpart C – VEOA Appeals
§ 1208.21 VEOA exhaustion requirement.
(a) General rule. Before an appellant may file a VEOA appeal with the Board, the appellant must first file a complaint under 5 U.S.C. 3330a(a) with the Secretary of Labor within 60 days after the date of the alleged violation. In addition, either the Secretary must have sent the appellant written notification that efforts to resolve the complaint were unsuccessful or, if the Secretary has not issued such notification and at least 60 days have elapsed from the date the complaint was filed, the appellant must have provided written notification to the Secretary of the appellant’s intention to file an appeal with the Board.
(b) Equitable tolling; extension of filing deadline. In extraordinary circumstances, the appellant’s 60-day deadline for filing a complaint with the Secretary is subject to the doctrine of equitable tolling, which permits the Board to extend the deadline where the appellant, despite having diligently pursued his or her rights, was unable to make a timely filing. Examples include cases involving deception or in which the appellant filed a defective pleading during the statutory period.
§ 1208.22 Time of filing.
(a) Unless the Secretary of Labor has notified the appellant that the Secretary’s efforts have not resolved the VEOA complaint, a VEOA appeal may not be filed with the Board before the 61st day after the date on which the appellant filed the complaint under 5 U.S.C. 3330a(a) with the Secretary.
(b) If the Secretary of Labor notifies the appellant that the Secretary’s efforts have not resolved the VEOA complaint and the appellant elects to appeal to the Board under 5 U.S.C. 3330a(d), the appellant must file the VEOA appeal with the Board within 15 days after the date of receipt of the Secretary’s notice. A copy of the Secretary’s notice must be submitted with the appeal.
(c) Equitable tolling; extension of filing deadline. In extraordinary circumstances, the appellant’s 15-day deadline for filing an appeal with the MSPB is subject to the doctrine of equitable tolling, which permits the Board to extend the deadline where the appellant, despite having diligently pursued his or her rights, was unable to make a timely filing. Examples include cases involving deception or in which the appellant filed a defective pleading during the statutory period.
§ 1208.23 Content of appeal; request for hearing.
(a) Content. A VEOA appeal may be in any format, including letter form, but must contain the following:
(1) The nine (9) items or types of information required in 5 CFR 1201.24(a)(1) through (a)(9);
(2) Evidence or argument that the appellant is a preference eligible;
(3) A statement identifying the statute or regulation relating to veterans’ preference that was allegedly violated, an explanation of how the provision was violated, and the date of the violation;
(4) Evidence that a complaint under 5 U.S.C. 3330a(a) was filed with the Secretary of Labor, including the date the complaint was filed; and
(5) Evidence identifying the specific veterans’ preference claims that the appellant raised before the Secretary; and
(b) Request for hearing. An appellant must submit any request for a hearing with the VEOA appeal, or within any other time period the judge sets. A hearing may be provided to the appellant once the Board’s jurisdiction over the appeal is established and it has been determined that the appeal is timely. The judge may also order a hearing if necessary to resolve issues of jurisdiction or timeliness. The appellant has the burden of proof with respect to issues of jurisdiction and timeliness (5 CFR 1201.56(a)(2)(i) and (ii)).
(c) Electronic filing. An appeal may be filed electronically by using the Board’s e-Appeal site (https://e-appeal.mspb.gov) in accordance with § 1201.14 of this chapter.
§ 1208.24 Election to terminate MSPB proceeding.
(a) Election to terminate. At any time beginning on the 121st day after an appellant files a VEOA appeal with the Board, if a judicially reviewable Board decision on the appeal has not been issued, the appellant may elect to terminate the Board proceeding as provided under 5 U.S.C. 3330b and file a civil action with an appropriate United States district court. Such election must be in writing, signed, filed with the Board office where the appeal is being processed, and served on the parties. The election is effective immediately on the date of receipt by the Board office where the appeal is being processed. The election may be filed by electronic filing, provided the requirements of § 1201.14 of this chapter are satisfied.
(b) Termination order. Following receipt by the Board of an appellant’s written election to terminate the Board proceeding, a termination order will be issued to document the termination of the proceeding. The termination order will state that the proceeding was terminated as of the date of receipt of the appellant’s written election. Such an order is neither an initial decision under 5 CFR 1201.111 nor a final Board decision and is not subject to a petition for review in accordance with subpart C of part 1201, a petition for enforcement in accordance with subpart F of part 1201, or a petition for judicial review.
§ 1208.25 Remedies.
(a) Order for compliance. If the Board determines that a Federal agency has violated the appellant’s VEOA rights, the decision of the Board (either an initial decision of a judge under 5 CFR 1201.111 or a final Board decision under 5 CFR 1201.117) will order the agency to comply with the statute or regulation violated and to compensate the appellant for any loss of wages or benefits suffered by the appellant because of the violation. If the Board determines that the violation was willful, it will order the agency to pay the appellant an amount equal to back pay as liquidated damages.
(b) Attorney fees and expenses. If the Board issues a decision ordering compliance under paragraph (a) of this section, the Board will order payment of reasonable attorney fees, expert witness fees, and other litigation expenses. The provisions of subpart H of part 1201 shall govern any proceeding for attorney fees and expenses.
§ 1208.26 Appeals under another law, rule, or regulation.
(a) The VEOA provides that 5 U.S.C. 3330a shall not be construed to prohibit a preference eligible from appealing directly to the Board from any action that is appealable under any other law, rule, or regulation, in lieu of administrative redress under VEOA (5 U.S.C. 3330a(e)(1)). An appellant may not pursue redress for an alleged violation of veterans’ preference under VEOA at the same time he pursues redress for such violation under any other law, rule, or regulation (5 U.S.C. 3330a(e)(2)).
(b) An appellant who elects to appeal to the Board under another law, rule, or regulation must comply with the provisions of subparts B and C of 5 CFR part 1201, including the time of filing requirement of 5 CFR 1201.22(b)(1).
PART 1209 – PRACTICES AND PROCEDURES FOR APPEALS AND STAY REQUESTS OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING OR OTHER PROTECTED ACTIVITY
Subpart A – Jurisdiction and Definitions
§ 1209.1 Scope.
This part governs any appeal or stay request filed with the Board by an employee, former employee, or applicant for employment where the appellant alleges that a personnel action defined in 5 U.S.C. 2302(a)(2) was threatened, proposed, taken, or not taken because of the appellant’s whistleblowing or other protected activity activities. Included are individual right of action appeals authorized by 5 U.S.C. 1221(a), appeals of otherwise appealable actions allegedly based on the appellant’s whistleblowing or other protected activity, and requests for stays of personnel actions allegedly based on whistleblowing or other protected activity.
§ 1209.2 Jurisdiction.
(a) Generally. Under 5 U.S.C. 1221(a), an employee, former employee, or applicant for employment may appeal to the Board from agency personnel actions alleged to have been threatened, proposed, taken, or not taken because of the appellant’s whistleblowing or other protected activity.
(b) Appeals authorized. The Board exercises jurisdiction over:
(1) Individual right of action (IRA) appeals. These are authorized by 5 U.S.C. 1221(a) with respect to personnel actions listed in 1209.4(a) of this part that are allegedly threatened, proposed, taken, or not taken because of the appellant’s whistleblowing or other protected activity. If the action is not otherwise directly appealable to the Board, the appellant must seek corrective action from the Special Counsel before appealing to the Board.
(2) Otherwise appealable action appeals. These are appeals to the Board under laws, rules, or regulations other than 5 U.S.C. 1221(a) that include an allegation that the action was based on the appellant’s whistleblowing or other protected activity. Otherwise appealable actions are listed in 5 CFR 1201.3(a). An individual who has been subjected to an otherwise appealable action must make an election of remedies as described in 5 U.S.C. 7121(g) and paragraphs (c) and (d) of this section.
(c) Issues before the Board in IRA appeals. In an individual right of action appeal, the only merits issues before the Board are those listed in 5 U.S.C. 1221(e), i.e., whether the appellant has demonstrated that whistleblowing or other protected activity was a contributing factor in one or more covered personnel actions and, if so, whether the agency has demonstrated by clear and convincing evidence that it would have taken the same personnel action(s) in the absence of the whistleblowing or other protected activity. The appellant may not raise affirmative defenses, such as claims of discrimination or harmful procedural error. In an IRA appeal that concerns an adverse action under 5 U.S.C. 7512, the agency need not prove its charges, nexus, or the reasonableness of the penalty, as a requirement under 5 U.S.C. 7513(a), i.e., that its action is taken “only for such cause as will promote the efficiency of the service.” However, the Board may consider the strength of the agency’s evidence in support of its adverse action in determining whether the agency has demonstrated by clear and convincing evidence that it would have taken the same personnel action in the absence of the whistleblowing or other protected activity.
(d) Elections under 5 U.S.C. 7121(g). (1) Under 5 U.S.C. 7121(g)(3), an employee who believes he or she was subjected to a covered personnel action in retaliation for whistleblowing or other protected activity “may elect not more than one” of 3 remedies: An appeal to the Board under 5 U.S.C. 7701; a negotiated grievance under 5 U.S.C. 7121(d); or corrective action under subchapters II and III of 5 U.S.C. chapter 12, i.e., a complaint filed with the Special Counsel (5 U.S.C. 1214), which can be followed by an IRA appeal filed with the Board (5 U.S.C. 1221). Under 5 U.S.C. 7121(g)(4), an election is deemed to have been made based on which of the 3 actions the individual files first.
(2) In the case of an otherwise appealable action as described in paragraph (b)(2) of this section, an employee who files a complaint with OSC prior to filing an appeal with the Board has elected corrective action under subchapters II and III of 5 U.S.C. chapter 12, i.e., a complaint filed with OSC, which can be followed by an IRA appeal with the Board. As described in paragraph (c) of this section, the IRA appeal in such a case is limited to resolving the claim(s) of reprisal for whistleblowing or other protected activity.
(e) Elements and Order of Proof. Once jurisdiction has been established, the merits of a claim of retaliation for whistleblowing or other protected activity will be adjudicated as follows:
(1) The appellant must establish by preponderant evidence that he or she engaged in whistleblowing or other protected activity and that his or her whistleblowing or other protected activity was a contributing factor in a covered personnel action. An appellant may establish the contributing factor element through circumstantial evidence, such as evidence that the official taking the personnel action knew of the disclosure or protected activity, and that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure or protected activity was a contributing factor in the personnel action.
(2) If a finding has been made that a protected disclosure or other protected activity was a contributing factor in one or more covered personnel actions, the Board will order corrective action unless the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure or activity.
§ 1209.3 Application of 5 CFR part 1201.
Except as expressly provided in this part, the Board will apply subparts A, B, C, E, F, and G of 5 CFR part 1201 to appeals and stay requests governed by this part. The Board will apply the provisions of subpart H of part 1201 regarding awards of attorney fees, compensatory damages, and consequential damages under 5 U.S.C. 1221(g) to appeals governed by this part.
§ 1209.4 Definitions.
(a) Personnel action means, as to individuals and agencies covered by 5 U.S.C. 2302:
(1) An appointment;
(2) A promotion;
(3) An adverse action under chapter 75 of title 5, United States Code or other disciplinary or corrective action;
(4) A detail, transfer, or reassignment;
(5) A reinstatement;
(6) A restoration;
(7) A reemployment;
(8) A performance evaluation under chapter 43 of title 5, United States Code;
(9) A decision concerning pay, benefits, or awards, or concerning education or training if the education or training may reasonably be expected to lead to an appointment, promotion, performance evaluation, or other personnel action;
(10) A decision to order psychiatric testing or examination;
(11) The implementation or enforcement of any nondisclosure policy, form, or agreement; and
(12) Any other significant change in duties, responsibilities, or working conditions.
(b) Whistleblowing is the making of a protected disclosure, that is, a formal or informal communication or transmission, but does not include a communication concerning policy decisions that lawfully exercise discretionary authority, unless the employee or applicant providing the disclosure reasonably believes that the disclosure evidences any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety. It does not include a disclosure that is specifically prohibited by law or required by Executive order to be kept secret in the interest of national defense or foreign affairs, unless such information is disclosed to Congress, the Special Counsel, the Inspector General of an agency, or an employee designated by the head of the agency to receive it.
(c) Other protected activity means any of the following:
(1) The exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation with regard to remedying a violation of 5 U.S.C. 2302(b)(8), i.e., retaliation for whistleblowing;
(2) Testifying for or otherwise lawfully assisting any individual in the exercise of any right granted by any law, rule, or regulation;
(3) Cooperating with or disclosing information to Congress, the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or
(4) Refusing to obey an order that would require the individual to violate a law.
(d) Contributing factor means any disclosure that affects an agency’s decision to threaten, propose, take, or not take a personnel action with respect to the individual making the disclosure.
(e) Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established. It is a higher standard than “preponderance of the evidence” as defined in 5 CFR 1201.56(c)(2).
(f) Reasonable belief. An employee or applicant may be said to have a reasonable belief when a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee or applicant could reasonably conclude that the actions of the Government evidence the violation, mismanagement, waste, abuse, or danger in question.
Subpart B – Appeals
§ 1209.5 Time of filing.
(a) General rule. The appellant must seek corrective action from the Special Counsel before appealing to the Board unless the action being appealed is otherwise appealable directly to the Board and the appellant has elected a direct appeal. (See § 1209.2(d) regarding election of remedies under 5 U.S.C. 7121(g)). Where the appellant has sought corrective action, the time limit for filing an appeal with the Board is governed by 5 U.S.C. 1214(a)(3). Under that section, an appeal must be filed:
(1) No later than 65 days after the date of issuance of the Special Counsel’s written notification to the appellant that it was terminating its investigation of the appellant’s allegations or, if the appellant shows that the Special Counsel’s notification was received more than 5 days after the date of issuance, within 60 days after the date the appellant received the Special Counsel’s notification; or,
(2) At any time after the expiration of 120 days, if the Special Counsel has not notified the appellant that it will seek corrective action on the appellant’s behalf within 120 days of the date of filing of the request for corrective action.
(b) Equitable tolling; extension of filing deadline. The appellant’s deadline for filing an individual right of action appeal with the Board after receiving written notification from the Special Counsel that it is terminating its investigation of his or her allegations is subject to the doctrine of equitable tolling, which permits the Board to extend the deadline where the appellant, despite having diligently pursued his or her rights, was unable to make a timely filing. Examples include cases involving deception or in which the appellant filed a defective pleading during the statutory period.
(c) Appeals after a stay request. Where an appellant has filed a request for a stay with the Board without first filing an appeal of the action, the appeal must be filed within 30 days after the date the appellant receives the order ruling on the stay request. Failure to timely file the appeal will result in the termination of any stay that has been granted unless a good reason for the delay is shown.
§ 1209.6 Content of appeal; right to hearing.
(a) Content. Only an appellant, his or her designated representative, or a party properly substituted under 5 CFR 1201.35 may file an appeal. Appeals may be in any format, including letter form, but must contain the following:
(1) The nine (9) items or types of information required in 5 CFR 1201.24 (a)(1) through (a)(9);
(2) Where the appellant first sought corrective action from the Special Counsel, evidence that the appeal is timely filed;
(3) The name(s) and position(s) held by the employee(s) who took the action(s), and a chronology of facts concerning the action(s);
(4) A description of each disclosure evidencing whistleblowing or other protected activity as defined in § 1209.4(b) of this part; and
(5) Evidence or argument that:
(i) The appellant was or will be subject to a personnel action as defined in § 1209.4(a) of this part, or that the agency has threatened to take or not to take such a personnel action, together with specific indications giving rise to the appellant’s apprehensions; and
(ii) The personnel action was or will be based wholly or in part on the whistleblowing disclosure or other protected activity, as described in § 1209.4(b) of this part.
(6) An appellant who first sought corrective action from the Special Counsel may satisfy the requirements of paragraphs (a)(3) through (a)(5) of this section by filing with the appeal a copy of Part 2: Reprisal For Whistleblowing of the complaint form submitted to the Office of Special Counsel (Form OSC-11, Complaint of Possible Prohibited Personnel Practice or Other Prohibited Activity, Rev. 8/00), together with a copy of any continuation sheet with answers to Part 2 questions filed with the Office of Special Counsel, and any supplement to Part 2 of the original complaint filed with the Office of Special Counsel or completed by the Office of Special Counsel and furnished to the appellant.
(b) Right to hearing. An appellant generally has a right to a hearing if the appeal has been timely filed and the Board has jurisdiction over the appeal.
(c) Timely request. The appellant must submit any request for a hearing with the appeal, or within any other time period the judge sets for that purpose. If the appellant does not make a timely request for a hearing, the right to a hearing is waived.
(d) Electronic filing. An appeal may be filed electronically by using the Board’s e-Appeal site (https://e-appeal.mspb.gov) in accordance with § 1201.14 of this chapter.
§ 1209.7 Burden and degree of proof.
(a) Subject to the exception stated in paragraph (b) of this section, in any case involving a prohibited personnel practice described in 5 U.S.C. 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), the Board will order appropriate corrective action if the appellant shows by a preponderance of the evidence that the disclosure or other protected activity was a contributing factor in the personnel action that was threatened, proposed, taken, or not taken against the appellant.
(b) However, even where the appellant meets the burden stated in paragraph (a) of this section, the Board will not order corrective action if the agency shows by clear and convincing evidence that it would have threatened, proposed, taken, or not taken the same personnel action in the absence of the disclosure or other protected activity.
Subpart C – Stay Requests
§ 1209.8 Filing a request for a stay.
(a) Time of filing. An appellant may request a stay of a personnel action allegedly based on whistleblowing at any time after the appellant becomes eligible to file an appeal with the Board under § 1209.5 of this part, but no later than the time limit set for the close of discovery in the appeal. The request may be filed prior to, simultaneous with, or after the filing of an appeal.
(b) Place of filing. Requests must be filed with the appropriate Board regional or field office as set forth in 5 CFR 1201.4(d).
(c) Service of stay request. A stay request must be simultaneously served upon the Board’s regional or field office and upon the agency’s local servicing personnel office or the agency’s designated representative, if any. A certificate of service stating how and when service was made must accompany the stay request.
(d) Method of filing. A stay request must be filed with the appropriate Board regional or field office by mail, by facsimile, by commercial or personal delivery, or by electronic filing in accordance with § 1201.14 of this chapter.
§ 1209.9 Content of stay request and response.
(a) Only an appellant, his or her designated representative, or a party properly substituted under 5 CFR 1201.35 may file a stay request. The request may be in any format, and must contain the following:
(1) The name, address, and telephone number of the appellant, and the name and address of the acting agency;
(2) The name, address, and telephone number of the appellant’s representative, if any;
(3) The signature of the appellant or, if the appellant has a representative, of the representative;
(4) A chronology of facts, including a description of the appellant’s disclosure and the action that the agency has taken or intends to take;
(5) Where the appellant first sought corrective action from the Special Counsel, evidence that the stay request is timely filed;
(6) Evidence and/or argument showing that:
(i) The action threatened, proposed, taken, or not taken is a personnel action, as defined in § 1209.4(a) of this part;
(ii) The action complained of was based on whistleblowing or other protected activity as defined in § 1209.4(b) of this part; and
(iii) There is a substantial likelihood that the appellant will prevail on the merits of the appeal;
(7) Evidence and/or argument addressing how long the stay should remain in effect; and
(8) Any documentary evidence that supports the stay request.
(b) An appellant may provide evidence and/or argument addressing the question of whether a stay would impose extreme hardship on the agency.
(c) Agency response. (1) The agency’s response to the stay request must be received by the appropriate Board regional or field office within five days (excluding Saturdays, Sundays, and Federal holidays) of the date of service of the stay request on the agency.
(2) The agency’s response must contain the following:
(i) Evidence and/or argument addressing whether there is a substantial likelihood that the appellant will prevail on the merits of the appeal;
(ii) Evidence and/or argument addressing whether the grant of a stay would result in extreme hardship to the agency; and
(iii) Any documentation relevant to the agency’s position on these issues.
§ 1209.10 Hearing and order ruling on stay request.
(a) Hearing. The judge may hold a hearing on the stay request.
(b) Order ruling on stay request. (1) The judge must rule upon the stay request within 10 days (excluding Saturdays, Sundays, and Federal holidays) after the request is received by the appropriate Board regional or field office.
(2) The judge’s ruling on the stay request must set forth the factual and legal bases for the decision. The judge must decide whether there is a substantial likelihood that the appellant will prevail on the merits of the appeal, and whether the stay would result in extreme hardship to the agency.
(3) If the judge grants a stay, the order must specify the effective date and duration of the stay.
§ 1209.11 Duration of stay; interim compliance.
(a) Duration of stay. A stay becomes effective on the date specified in the judge’s order. The stay will remain in effect for the time period set forth in the order or until the Board issues a final decision on the appeal of the underlying personnel action that was stayed, or until the Board vacates or modifies the stay, whichever occurs first.
(b) Interim compliance. An agency must immediately comply with an order granting a stay request. Although the order granting a stay request is not a final order, petitions for enforcement of such orders are governed by 5 CFR part 1201, subpart F.
Subpart D – Reports on Applications for Transfers
§ 1209.12 Filing of agency reports.
When an employee who has applied for a transfer to another position in an Executive agency under 5 U.S.C. 3352 asks the agency head to review a rejection of his or her application for transfer, the agency head must complete the review and provide a written statement of findings to the employee and the Clerk of the Board within 30 days after receiving the request.
Subpart E – Referrals to the Special Counsel
§ 1209.13 Referral of findings to the Special Counsel.
When the Board determines in a proceeding under this part that there is reason to believe that a current Federal employee may have committed a prohibited personnel practice described at 5 U.S.C. 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), the Board will refer the matter to the Special Counsel to investigate and take appropriate action under 5 U.S.C. 1215.
PART 1210 – PRACTICES AND PROCEDURES FOR AN APPEAL OF A REMOVAL OR TRANSFER OF A SENIOR EXECUTIVE SERVICE EMPLOYEE BY THE SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS
§ 1210.1 Authority to issue decisions under this part.
(a) Under 38 U.S.C. 713(d)(2)(A), as created by the Veterans Access, Choice and Accountability Act of 2014 (the Act), an employee covered by this part may appeal a removal from the civil service or a transfer to a General Schedule position based upon performance or misconduct to the MSPB.
(b) MSPB administrative judges have the authority to issue a decision in an appeal covered by this part. (38 U.S.C. 713(e)(1)).
(c) The administrative judge’s authority under this part to issue a decision terminates following the passage of 21 days after the appeal is initially filed. (38 U.S.C. 713(e)(3)).
(d) An administrative judge’s decision in an appeal filed under this part is not subject to any further appeal. (38 U.S.C. 713(e)(2)).
(e) This part applies only to the Secretary’s authority to remove or transfer an employee covered under 38 U.S.C. 713 and the Board’s authority to review such decisions. This authority is in addition to the authority already provided the agency in 5 U.S.C. 3592 and the authority provided the Board under 5 U.S.C. 7541, et seq. to take an adverse action against an employee. (38 U.S.C. 713(f)).
§ 1210.2 Definitions.
(a) The term employee covered by this part means an individual career appointee as that term is defined in 5 U.S.C. 3132(a)(4) or an individual who occupies an administrative or executive position and is appointed under 38 U.S.C. 7306(a) or 7401(1). (38 U.S.C. 713(a) and (g)).
(b) The term administrative judge means a person experienced in hearing appeals and assigned by the Board to hold a hearing and decide an appeal arising under this part. (38 U.S.C. 713(e)(1)).
(c) The term response file means all documents and evidence the Secretary of the Department of Veterans Affairs, or designee, used in making the decision to remove or transfer an employee covered by this part. It also may include any additional documents or evidence that the agency would present in support of the Secretary’s determination in the event that an appeal is filed.
(d) The term misconduct includes neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function. (38 U.S.C. 713(g)(2)).
(e) The term transfer means the transfer of an employee covered by this part to a General Schedule position. (38 U.S.C. 713(a)(1)(B)).
§ 1210.3 Application of practices and procedures to appeals filed under this part.
(a) The following provisions of part 1201 of this chapter are inapplicable to appeals filed under this part:
(1) Section 1201.22 (inapplicable to appeals brought under this part pursuant to Public Law 113-146, section 707(b)(2));
(2) Section 1201.27 (class appeals are not allowed as such appeals cannot be adjudicated within 21 days);
(3) Section 1201.28 (case suspensions are not allowed because they are inconsistent with the requirement to adjudicate appeals under this part within 21 days);
(4) Section 1201.29 (dismissals without prejudice are not allowed because those procedures are inconsistent with the requirement to adjudicate appeals under this part within 21 days);
(5) Section 1201.56 (this regulation is not controlling; parties should refer to § 1210.18);
(6) Sections 1201.91 through 1201.93 (interlocutory appeals are not allowed because the Board lacks authority to review appeals filed under this part);
(7) Sections 1201.114 through 1201.20 (petitions for review are not allowed because the decisions in appeals filed under this part are not subject to further appeal) (38 U.S.C. 713(e)(2));
(8) Sections 1201.121 through 1201.145 (procedures for other original jurisdiction cases are not relevant to appeals filed under this part);
(9) Sections 1201.152, 1201.153(b), 1201.154, 1201.155, 1201.156, 1201.157, and 1201.161 (these provisions are inapplicable to appeals filed under 38 U.S.C. 713).
(b) Except as modified by this part, the remaining relevant provisions of part 1201 of this chapter are applicable to appeals filed under this part.
§ 1210.4 Waiver of MSPB regulations.
The Board may waive any MSPB regulation in order to provide for the expedited review of an appeal covered by this part. Public Law 113-146, section 707(b)(3).
§ 1210.5 Determination of the Secretary effecting a removal or transfer; required notice of expedited procedures; initial disclosures.
An agency notice of a removal or transfer pursuant to 38 U.S.C. 713 must include the following:
(a) A statement identifying the action taken based on the Secretary’s determination, stating the factual reasons for the charge(s), and statement setting forth the basis for the Secretary’s determination that the performance or misconduct warrants removal or transfer.
(b) Notice regarding the Board’s expedited procedures applicable to an appeal. Such notice shall include a copy of this part and access to the remainder of the Board’s adjudicatory regulations.
(c) A copy of the materials the Secretary relied upon to remove or transfer the appellant (normally referred to as the “response file”).
(d) The name and contact information of the agency’s representative for any appeal filed with the MSPB under this part.
(e) Notice that MSPB appeals must be filed with the appropriate Board regional or field office. See § 1201.4(d) of this chapter.
§ 1210.6 Electronic filing procedures; expedited filing procedures.
(a) Required use of MSPB e-filing system. All parties must electronically file all pleadings and documents listed in 5 CFR 1201.14(b) by using the MSPB’s e-filing system (e-Appeal Online). An attempt to file an appeal using any other method will result in rejection of the appeal and will not constitute compliance with the 7-day filing deadline under the Act, except in the limited circumstances described in § 1210.7(c).
(b) Expedited filing and service requirements. All documents and pleadings not otherwise covered in paragraph (a) of this section must be filed in accordance with any expedited filing and service procedures ordered by the administrative judge.
(c) The parties should frequently check the Repository on e-Appeal Online to ensure that they are aware of new pleadings, orders and submissions in a timely fashion. A party’s failure to check for updates on e-Appeal Online may lead to a denial of a request to extend a deadline and/or the imposition of sanctions.
§ 1210.7 Filing an appeal and a response to an appeal.
(a) Place for filing an appeal and a response. Appeals, and responses to those appeals, must be filed with the appropriate Board regional or field office. See § 1201.4(d) of this chapter.
(b) Time for filing an appeal and agency response. An appeal of an action taken pursuant to 38 U.S.C. 713 must be filed no later than 7 days after the effective date of the removal or transfer being appealed. (38 U.S.C. 713(d)(2)(B)). An agency response must be filed within 3 days of the filing of the appeal.
(c) Timeliness of appeals. If an appellant does not submit an appeal within 7 days of the effective date of the action it will be dismissed as untimely filed. This deadline cannot be extended for any reason. (38 U.S.C. 713(d)(2)(B)). However, if an appellant establishes that he or she attempted to file an appeal using e-Appeal Online within the 7-day deadline and that the filing was unsuccessful due to a problem with e-Appeal Online, the administrative judge may deem the filing to have been completed on the date it was attempted, provided the appellant took reasonable steps to immediately advise the MSPB of the failed attempt to file the appeal using e-Appeal Online. The 21-day deadline for issuance of a decision will commence on the day such an appeal was deemed to have been filed.
(d) Time limits for other appeals not brought under 38 U.S.C. 713. The time limit prescribed by paragraph (b) of this section for filing an appeal does not apply where a law or regulation establishes a different time limit or where there is no applicable time limit. No time limit applies to appeals under the Uniformed Services Employment and Reemployment Rights Act (Pub. L. 103-353), as amended; see part 1208 of this chapter for the statutory filing time limits applicable to appeals under the Veterans Employment Opportunities Act (Pub. L. 105-339); see part 1209 of this chapter for the statutory filing time limits applicable to whistleblower appeals and stay requests.
§ 1210.8 Stay requests.
An administrative judge may not grant a stay request in any appeal covered by this part. (38 U.S.C. 713(e)(4)).
§ 1210.9 Disclosures of information required with initial appeal.
An appellant must attach to his or her appeal a copy of the agency’s decision notice and the response file that the agency is required to disclose to the appellant pursuant to § 1210.5(c).
§ 1210.10 Representatives.
Motions challenging the designation of a representative must be filed within 3 days of the submission of the designation of representative notice.
§ 1210.11 Initial status conference; scheduling the hearing.
This regulation contains guidance for the parties concerning when initial status conferences will occur and the issues that will be addressed. In any appeal under this part the administrative judge retains complete discretion in deciding when to schedule the initial status conference and in selecting the issues to be addressed.
(a) Scheduling the conference. The administrative judge will schedule the initial status conference. Generally, the parties should expect that the initial status conference will take place within a week after the appeal is filed.
(b) Issues likely to be addressed at the initial status conference. The parties should be prepared to discuss the following issues at the initial status conference:
(1) The hearing date and anticipated length of the hearing;
(2) Settlement;
(3) Discovery deadlines and disputes;
(4) Admission or rejection of exhibits;
(5) Witnesses to be called to testify at the hearing;
(6) Motions; and,
(7) Any other issues identified by, or that require the involvement of, the administrative judge.
(c) Additional status conferences. The administrative judge may schedule additional status conferences as necessary to fully develop the case for hearing.
§ 1210.12 Discovery.
Except as noted in paragraphs (a) through (d) of this section, 5 CFR 1201.71 through 1201.75 apply to appeals filed under this part.
(a) Initial disclosures. The parties must make the following initial disclosures prior to the initial status conference.
(1) Agency. The agency must provide:
(i) A copy of all documents in the possession, custody or control of the agency that the agency may use in support of its claims or defenses; and,
(ii) The name and, if known, address, telephone number and email address for each individual likely to have discoverable information that the agency may use in support of its claims or defenses.
(2) Appellant. The appellant must provide:
(i) A copy of all documents in the possession, custody or control of the appellant that the appellant may use in support of his or her claims or defenses; and,
(ii) The name and, if known, address, telephone number and email address for each individual likely to have discoverable information that the appellant may use in support of his or her claims or defenses.
(b) Time limits. The time limits set forth in § 1201.73 of this chapter shall not apply to an appeal under this part. The following time limits apply to appeals under this part:
(1) Discovery requests must be served on the opposing party prior to the initial status conference.
(2) Responses to discovery requests must be served on the opposing party no later than 3 days after the initial status conference.
(3) Discovery motions, including motions to compel, must be filed no later than 5 days after the initial status conference.
(c) Methods of discovery. Parties may use one or more of the following methods of discovery provided under the Federal Rules of Civil Procedure:
(1) Written interrogatories;
(2) Requests for production of documents or things for inspection or copying;
(3) Requests for admissions.
(d) Limits on discovery requests. Absent approval by the administrative judge, discovery is limited as follows:
(1) Interrogatories may not exceed 10 in number, including all discrete subparts;
(2) The parties may not take depositions; and
(3) The parties may engage in only one round of discovery.
(e) Administrative judge’s discretion to alter discovery procedures. An administrative judge may alter discovery procedures in order to provide for the expedited review of an appeal filed under this part.
§ 1210.13 Deadlines for filing motions.
(a) Motions. All non-discovery motions must be filed no later than 5 days after the initial status conference.
(b) Objections. Objections to motions must be filed no later than 2 days after the motion is filed.
(c) Administrative judge’s discretion to alter deadlines. An administrative judge may exercise discretion to alter or waive these deadlines.
§ 1210.14 Sanctions for failure to meet deadlines.
Section 1201.43 of this chapter, which allows administrative judges to impose sanctions on parties that do not comply with orders or do not file pleadings in a timely fashion, shall apply to any appeal covered by this part. Strict enforcement of deadlines will be required to meet the 21-day deadline for issuance of a decision by the administrative judge.
§ 1210.15 Agency duty to assist in expedited review.
(a) As required by 38 U.S.C. 713(e)(6), the agency is required to provide the administrative judge such information and assistance as may be necessary to ensure that an appeal covered by this part is completed in an expedited manner.
(b) The agency must promptly notify the MSPB whenever it issues a Secretarial determination subject to appeal under this part. Such notification must include the location where the employee worked, the type of action taken, and the effective date of the action. Notification should be sent to [email protected].
§ 1210.16 Intervenors and amici curiae.
Intervenors and amici curiae are permitted to participate in proceedings under this part as allowed in § 1201.34 of this chapter. Motions to intervene and requests to participate as an amicus curiae must be filed at the earliest possible time, generally before the initial status conference. All intervenors and amici curiae must comply with the expedited procedures set forth in this part and all orders issued by the administrative judge. The deadlines applicable to the timely adjudication of cases under this part will not be extended to accommodate intervenors or amici curiae.
§ 1210.17 Hearings.
(a) Right to a hearing. An appellant has a right to a hearing as set forth in 5 U.S.C. 7701(a).
(b) General. Hearings may be held in-person, by video or by telephone at the discretion of the administrative judge.
(c) Scheduling the hearing. The administrative judge will set the hearing date during the initial status conference. A hearing generally will be scheduled to occur no later than 18 days after the appeal is filed.
(d) Length of hearings. Hearings generally will be limited to no more than 1 day. The administrative judge, at his or her discretion, may allow for a longer hearing.
(e) Court reporters. The MSPB will contract for a court reporter to be present at hearings.
§ 1210.18 Burden of proof, standard of review, and penalty.
(a) Agency. Under 5 U.S.C. 7701(c)(1), and subject to exceptions stated in paragraph (c) of this section, the agency (the Department of Veterans Affairs) bears the burden of proving that an appellant engaged in misconduct, as defined by 38 U.S.C. 713(g)(2), or poor performance, and the Secretary’s determination as to such misconduct or poor performance shall be sustained only if the factual reasons for the charge(s) are supported by a preponderance of the evidence. Proof of misconduct or poor performance shall create a presumption that the Secretary’s decision to remove or transfer the appellant was warranted. The appellant may rebut this presumption by establishing that the imposed penalty was unreasonable under the circumstances of the case. The following examples illustrate the application of this rule:
(b) Appellant. The appellant has the burden of proof, by a preponderance of the evidence, concerning:
(1) Issues of jurisdiction;
(2) The timeliness of the appeal; and
(3) Affirmative defenses.
(c) Affirmative defenses. Under 5 U.S.C. 7701(c)(2), the Secretary’s determination may not be sustained, even where the agency met the evidentiary standard stated in paragraph (a) of this section, if the appellant shows that:
(1) The agency, in rendering its determination, committed harmful error in the application of its procedures;
(2) The decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or
(3) The determination is not otherwise in accordance with law.
(d) Penalty review. As set forth in paragraph (a) of this section, proof of the agency’s charge(s) by preponderant evidence creates a presumption that the Secretary’s decision to remove or transfer the appellant was warranted. An appellant may rebut this presumption by establishing that the imposed penalty was unreasonable under the circumstances of the case, in which case the action is reversed. However, the administrative judge may not mitigate the Secretary’s decision to remove or transfer the appellant.
§ 1210.19 Bench decisions.
(a) General. The administrative judge may issue a bench decision at the close of the hearing. A bench decision is effective when issued.
(b) Transcription of bench decision. A transcribed copy of the decision will be prepared by the court reporter under the administrative judge’s supervision to memorialize the oral decision. The official issuance of a bench decision is the date the administrative judge announces the decision and not the date the administrative judge signs the transcription.
§ 1210.20 Effective date of a decision issued by an administrative judge; continuing jurisdiction over certain ancillary matters.
(a) A decision by an administrative judge under this part will be effective upon issuance.
(b) Pursuant to 38 U.S.C. 713(e)(2), a decision by the administrative judge is not subject to further appeal.
(c) A decision by the administrative judge is nonprecedential. Such a decision may be cited as persuasive authority only in an appeal filed pursuant to 38 U.S.C. 713(e)(2). Such a decision may not be cited in any appeal not filed pursuant to 38 U.S.C. 713(e)(2).
(d) Following issuance of a decision by the administrative judge under this part, the MSPB retains jurisdiction over the appeal covered by this part for purposes of the following ancillary matters:
(1) Enforcement of decisions and orders. The procedures set forth in subpart F of 5 CFR part 1201 are applicable to petitions for enforcement filed after the administrative judge issues a decision in an appeal filed under this part; and,
(2) Attorney fees, witness fees, litigation expenses, and damages. The procedures set forth in subpart H of 5 CFR part 1201 (attorney fees, costs, expert witness fees, and litigation expenses, where applicable, and damages) are applicable to requests for fees and damages filed after the administrative judge issues a decision in an appeal filed under this part. (5 U.S.C. 7701(g)).
PARTS 1211-1214 [RESERVED]
PART 1215 – DEBT MANAGEMENT
Subpart A – Salary Offset
§ 1215.1 Purpose and scope.
(a) This regulation provides procedures for the collection by administrative offset of a Federal employee’s salary without his/her consent to satisfy certain debts owed to the Federal Government. These regulations apply to all Federal employees who owe debts to the MSPB and to current employees of the MSPB who owe debts to other Federal agencies. This regulation does not apply when the employee consents to recovery from his/her current pay account.
(b) This regulation does not apply to debts or claims arising under:
(1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 et seq.;
(2) The Social Security Act, 42 U.S.C. 301 et seq.;
(3) The tariff laws of the United States; or
(4) Any case where a collection of a debt by salary offset is explicitly provided for or prohibited by another statute.
(c) This regulation does not apply to any adjustment to pay arising out of an employee’s selection of coverage or a change in coverage under a Federal benefits program requiring periodic deductions from pay if the amount to be recovered was accumulated over four pay periods or less.
(d) This regulation does not preclude the compromise, suspension, or termination of collection action where appropriate under the standards implementing the Federal Claims Collection Act, 31 U.S.C. 3711 et seq. 4 CFR parts 101 through 105; 5 CFR part 1215.
(e) This regulation does not preclude an employee from requesting waiver of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774 or 32 U.S.C. 716 or in any way questioning the amount of validity of the debt by submitting a subsequent claim to the General Accounting Office. This regulation does not preclude an employee from requesting a waiver pursuant to other statutory provisions applicable to the particular debt being collected.
(f) Matters not addressed in these regulations should be reviewed in accordance with the Federal Claims Collection Standards at 4 CFR 101.1 et seq.
§ 1215.2 Definitions.
(a) Agency. An executive agency as is defined at 5 U.S.C. 105 including the U.S. Postal Service, the U.S. Postal Commission, a military department as defined at 5 U.S.C. 102, an agency or court in the judicial branch, an agency of the legislative branch including the U.S. Senate and House of Representatives and other independent establishments that are entities of the Federal government.
(b) Chairman. The Chairman of the MSPB or the Chairman’s designee.
(c) Creditor agency. The agency to which the debt is owed.
(d) Debt. An amount owed to the United States from sources which include loans insured or guaranteed by the United States and all other amounts due the United States from fees, leases, rents, royalties, services, sales or real or personal property, overpayments, penalties, damages, interests, fines, forfeitures (except those arising under the Uniform Code of Military Justice), and all other similar sources.
(e) Disposable pay. The amount that remains from an employee’s Federal pay after required deductions for social security, Federal, state or local income tax, health insurance premiums, retirement contributions, life insurance premiums, Federal employment taxes, and any other deductions that are required to be withheld by law.
(f) Hearing official. An individual responsible for conducting any hearing with respect to the existence or amount of a debt claimed, and who renders a decision on the basis of such hearing. A hearing official may not be under the supervision or control of the Chairman of the MSPB.
(g) Paying Agency. The agency that employs the individual who owes the debt and authorizes the payment of his/her current pay.
(h) Salary offset. An administrative offset to collect a debt pursuant to 5 U.S.C. 5514 by deduction(s) at one or more officially established pay intervals from the current pay account of an employee without his/her consent.
§ 1215.3 Applicability.
(a) These regulations are to be followed when:
(1) The MSPB is owed a debt by an individual currently employed by another Federal agency;
(2) The MSPB is owed a debt by an individual who is a current employee of the MSPB; or
(3) The MSPB employs an individual who owes a debt to another Federal agency.
§ 1215.4 Notice requirements.
(a) Deductions shall not be made unless the employee is provided with written notice signed by the Chairman of the debt at least 30 days before salary offset commences.
(b) The written notice shall contain:
(1) A statement that the debt is owed and an explanation of its nature, and amount;
(2) The agency’s intention to collect the debt by deducting from the employee’s current disposable pay account;
(3) The amount, frequency proposed beginning date, and duration of the intended deduction(s);
(4) An explanation of interest, penalties, and administrative charges, including a statement that such charges will be assessed unless excused in accordance with the Federal Claims Collections Standards at 4 CFR 101.1 et seq.;
(5) The employee’s right to inspect, request, or receive a copy of government records relating to the debt;
(6) The opportunity to establish a written schedule for the voluntary repayment of the debt;
(7) The right to a hearing conducted by an impartial hearing official;
(8) The methods and time period for petitioning for hearings;
(9) A statement that the timely filing of a petition for a hearing will stay the commencement of collection proceedings;
(10) A statement that a final decision on the hearing will be issued not later than 60 days after the filing of the petition requesting the hearing unless the employee requests and the hearing official grants a delay in the proceedings;
(11) A statement that knowingly false or frivolous statements, representations, or evidence may subject the employee to appropriate disciplinary procedures;
(12) A statement of other rights and remedies available to the employee under statutes or regulations governing the program for which the collection is being made; and
(13) Unless there are contractual or statutory provisions to the contrary, a statement that amounts paid on or deducted for the debt which are later waived or found not owed to the United States will be promptly refunded to the employee.
§ 1215.5 Hearing.
(a) Request for hearing. (1) An employee must file a petition for a hearing in accordance with the instructions outlined in the agency’s notice to offset.
(2) A hearing may be requested by filing a written petition addressed to the Chairman of the MSPB stating why the employee disputes the existence or amount of the debt. The petition for a hearing must be received by the Chairman no later than fifteen (15) calendar days after the date of the notice to offset unless the employee can show good cause for failing to meet the deadline date.
(b) Hearing procedures. (1) The hearing will be presided over by an impartial hearing official.
(2) The hearing shall conform to procedures contained in the Federal Claims Collection Standards 4 CFR 102.3(c). The burden shall be on the employee to demonstrate that the existence or the amount of the debt is in error.
§ 1215.6 Written decision.
(a) The hearing official shall issue a written opinion no later than 60 days after the hearing.
(b) The written opinion will include: A statement of the facts presented to demonstrate the nature and origin of the alleged debt; the hearing official’s analysis, findings and conclusions; the amount and validity of the debt, and the repayment schedule.
§ 1215.7 Coordinating offset with another Federal agency.
(a) The MSPB as the creditor agency. (1) When the Chairman determines that an employee of a Federal agency owes a delinquent debt to the MSPB, the Chairman shall as appropriate:
(i) Arrange for a hearing upon the proper petitioning by the employee;
(ii) Certify in writing that the employee owes the debt, the amount and basis of the debt, the date on which payment is due, the date the Government’s right to collect the debt accrued, and that MSPB regulations for salary offset have been approved by the Office of Personnel Management;
(iii) Advise the paying agency of the amount or percentage of disposable pay to be collected in each installment, if collection is to be made in installments;
(iv) Advise the paying agency of the actions taken under 5 U.S.C. 5514(b) and provide the dates on which action was taken unless the employee has consented to salary offset in writing or signed a statement acknowledging receipt of procedures required by law. The written consent or acknowledgment must be sent to the paying agency;
(v) If the employee is in the process of separating, MSPB must submit its debt claim to the paying agency as provided in this part. The paying agency must certify any amounts already collected, notify the employee, and send a copy of the certification and notice of the employee’s separation to the creditor agency. If the paying agency is aware that the employee is entitled to Civil Service Retirement and Disability Fund or similar payments, it must certify to the agency responsible for making such payments the amount of the debt and that the provisions of this part have been followed; and
(vi) If the employee has already separated and all payments due from the paying agency have been paid, the Chairman may request unless otherwise prohibited, that money payable to the employee from the Civil Service Retirement and Disability Fund or other similar funds be collected by administrative offset.
(b) MSPB as the paying agency. (1) Upon receipt of a properly certified debt claim from another agency, deductions will be scheduled to begin at the next established pay interval. The employee must receive written notice that the MSPB has received a certified debt claim from the creditor agency, the amount of the debt, the date salary offset will begin, and the amount of the deduction(s). The MSPB shall not review the merits of the creditor agency’s determination of the validity or the amount of the certified claim.
(2) If the employee transfers to another agency after the creditor agency has submitted its debt claim to the MSPB and before the debt is collected completely, the MSPB must certify the total amount collected. One copy of the certification must be furnished to the employee. A copy must be furnished the creditor agency with notice of the employee’s transfer.
§ 1215.8 Procedures for salary offset.
(a) Deductions to liquidate an employee’s debt will be by the method and in the amount stated in the Chairman’s notice of intention to offset as provided in § 1215.4. Debts will be collected in one lump sum where possible. If the employee is financially unable to pay in one lump sum, collection must be made in installments.
(b) Debts will be collected by deduction at officially established pay intervals from an employee’s current pay account unless alternative arrangements for repayment are made.
(c) Installment deductions will be made over a period not greater than the anticipated period of employment. The size of installment deductions must bear a reasonable relationship to the size of the debt and the employee’s ability to pay. The deduction for the pay intervals for any period must not exceed 15 percent of disposable pay unless the employee has agreed in writing to a deduction of a greater amount.
(d) Unliquidated debts may be offset against any financial payment due to a separated employee including but not limited to final salary payment or leave in accordance with 31 U.S.C. 3716.
§ 1215.9 Refunds.
(a) The MSPB will refund promptly any amounts deducted to satisfy debts owed to the MSPB when the debt is waived, found not owed to the MSPB, or when directed by an administrative or judicial order.
(b) The creditor agency will promptly return any amounts deducted by MSPB to satisfy debts owed to the creditor agency when the debt is waived, found not owed, or when directed by an administrative or judicial order.
(c) Unless required by law, refunds under this subsection shall not bear interest.
§ 1215.10 Statute of limitations.
If a debt has been outstanding for more than 10 years after the agency’s right to collect the debt first accrued, the agency may not collect by salary offset unless facts material to the Government’s right to collect were not known and could not reasonably have been known by the official or officials who were charged with the responsibility for discovery and collection of such debts.
§ 1215.11 Nonwaiver of rights.
An employee’s involuntary payment of all or any part of a debt collected under these regulations will not be construed as a waiver of any rights that employee may have under 5 U.S.C. 5514 or any other provision of contract law unless there are statutes or contract(s) to the contrary.
§ 1215.12 Interest, penalties, and administrative costs.
Charges may be assessed for interest, penalties, and administrative costs in accordance with the Federal Claims Collection Standards, 4 CFR 102.13. Dated: July 24, 1987.
Subpart B – Claims Collection
§ 1215.21 Purpose and scope.
This part prescribes standards and procedures for officers and employees of the MSPB who are responsible for the collection and disposition of debts owed to the United States. The activities covered include: Collecting claims in any amount; compromising claims, or suspending or terminating the collection of claims that do not exceed $20,000 exclusive of interest and charges; and referring debts that cannot be disposed of by the MSPB to the Department of Justice or to the General Accounting Office for further administrative action or litigation.
§ 1215.22 Definitions.
(a) Claim or debt. An amount or property owed to the United States which includes, but is not limited to: Overpayments to program beneficiaries; overpayments to contractors and grantees, including overpayments arising from audit disallowances; excessive cash advances to grantees and contractors; and civil penalties and assessments. A debt is overdue or delinquent if it is not paid by the due date specified in the initial notice of the debt (see § 1215.26) or if the debtor fails to satisfy his or her obligation under a repayment agreement.
(b) Debtor. An individual, organization, group, association, partnership, or corporation indebted to the United States, or the person or entity with legal responsibility for assuming the debtor’s obligation.
(c) MSPB. The Merit Systems Protection Board.
(d) Administrative offset. Satisfying a debt by withholding money payable by the United States to or held by the United States for a debtor.
§ 1215.23 Other remedies.
The remedies and sanctions available to the MSPB under this part are not intended to be exclusive. The Chairman of the MSPB or his designee may impose other appropriate sanctions upon a debtor for prolonged or repeated failure to pay a debt. For example, the Chairman or his designee may place the debtor’s name on a list of debarred, suspended, or ineligible contractors. In such cases the debtor will be advised of the MSPB’s action.
§ 1215.24 Claims involving criminal activity or misconduct.
(a) A debtor whose indebtedness involves criminal activity such as fraud, embezzlement, theft, or misuse of government funds or property is subject to punishment by fine or imprisonment as well as to a civil claim by the United States for compensation for the misappropriated funds. The MSPB will refer these cases to the appropriate law enforcement agency for prosecution.
(b) Debts involving fraud, false claims, or misrepresentation shall not be compromised, terminated, suspended, or otherwise disposed of under this rule. Only the Department of Justice is authorized to compromise, terminate, suspend, or otherwise dispose of such debts.
§ 1215.25 Collection.
(a) The MSPB will take aggressive action to collect debts and reduce delinquencies. Collection efforts shall include sending to the debtor’s last known address a total of three progressively stronger written demands for payment at not more than 30 day intervals. When necessary to protect the Government’s interest, written demand may be preceded by other appropriate action, including immediate referral for litigation. Other contact with the debtor or his or her representative or guarantor by telephone, in person and/or in writing may be appropriate to demand prompt payment, to discuss the debtor’s position regarding the existence, amount and repayment of the debt, and to inform the debtor of his or her rights and effect of nonpayment or delayed payment. A debtor who disputes a debt must promptly provide available supporting evidence.
(b) If a debtor is involved in insolvency proceedings, the debt will be referred to the appropriate United States Attorney to file a claim. The United States may have a priority over other creditors under 31 U.S.C. 3713.
§ 1215.26 Notices to debtor.
The first written demand for payment must inform the debtor of the following:
(a) The amount and nature of the debt;
(b) The date payment is due, which will generally be 30 days from the date the notice was mailed;
(c) The assessment of interest under § 1215.27 from the date the notice was mailed if payment is not received within the 30 days;
(d) The right to dispute the debt;
(e) The office, address and telephone number that the debtor should contact to discuss repayment and reconsideration of the debt; and
(f) The sanctions available to the MSPB to collect a delinquent debt including, but not limited to, referral of the debt to a credit reporting agency, a private collection bureau, or the Department of Justice for litigation.
§ 1215.27 Interest, penalties, and administrative costs.
(a) Interest will accrue on all debts from the date when the first notice of the debt and the interest requirement is mailed to the last known address or hand-delivered to the debtor if the debt is not paid within 30 days from the date the first notice was mailed. The MSPB will charge an annual rate of interest that is equal to the average investment rate for the Treasury tax and loan accounts on September 30 of each year, rounded to the nearest whole per centum. This rate, which represents the current value of funds to the United States Treasury, may be revised quarterly by the Secretary of the Treasury and is published by the Secretary of the Treasury annually or quarterly in the
(b) The rate of interest initially assessed will remain fixed for the duration of the indebtedness, except that if a debtor defaults on a repayment agreement interest may be set at the Treasury rate in effect on the date a new agreement is executed.
(c) The MSPB shall charge debtors for administrative costs incurred in handling overdue debts.
(d) Interest will not be charged on administrative costs.
(e) The MSPB shall assess a penalty charge, not to exceed 6 percent per year on debts which have been delinquent for more than 90 days. This change shall accrue from the date that the debt became delinquent.
(f) The Chairman or his designee may waive in whole or in part the collection of interest and administrative and penalty charges if determined that collection would be against equity or not in the best interests of the United States. The MSPB shall waive the collection of interest on the debt or any part of the debt which is paid within 30 days after the date on which interest began to accrue.
§ 1215.28 Administrative offset.
(a) The MSPB may collect debts owed by administrative offset if:
(1) The debt is certain in amount;
(2) Efforts to obtain direct payment have been, or would most likely be unsuccessful, or the MSPB and the debtor agree to the offset;
(3) Offset is cost effective or has significant deterrent value; and
(4) Offset is best suited to further and protect the Government’s interest.
(b) The MSPB may offset a debt owed to another Federal agency from amounts due or payable by the MSPB to the debtor or request another Federal agency to offset a debt owed to the MSPB;
(c) Prior to initiating administrative offset, the MSPB will send the debtor written notice of the following:
(1) The nature and amount of the debt and the agency’s intention to collect the debt by offset 30 days from the date the notice was mailed if neither payment nor a satisfactory response is received by that date;
(2) The debtor’s right to an opportunity to submit a good faith alternative repayment schedule to inspect and copy agency records pertaining to the debt, to request a review of the determination of indebtedness; and to enter into a written agreement to repay the debt; and
(3) The applicable interest.
(d) The MSPB may effect an administrative offset against a payment to be made to a debtor prior to the completion of the procedures required by paragraph (c) of this section if:
(1) Failure of offset would substantially prejudice the Government’s ability to collect the debt; and
(2) The time before the payment is to be made does not reasonably permit completion of those procedures.
§ 1215.29 Use of credit reporting agencies.
(a) The MSPB may report delinquent accounts to credit reporting agencies consistent with the notice requirements contained in the § 1215.26. Individual debtors must be given at least 60 days written notice that the debt is overdue and will be reported to a credit reporting agency.
(b) Debts may be reported to consumer or commercial reporting agencies. Consumer reporting agencies are defined in 31 U.S.C. 3701(a)(3) pursuant to 5 U.S.C. 552a(b)(12) and 31 U.S.C. 3711(f). The MSPB may disclose only an individual’s name, address, Social Security number, and the nature, amount, status and history of the debt and the program under which the claim arose.
§ 1215.30 Collection services.
(a) The MSPB may contract for collection services to recover outstanding debts. The MSPB may refer delinquent debts to private collection agencies listed on the schedule compiled by the General Services Administration. In such contracts, the MSPB will retain the authority to resolve disputes, compromise claims, terminate or suspend collection, and refer the matter to the Department of Justice or the General Accounting Office.
(b) The contractor shall be subject to the disclosure provisions of the Privacy Act of 1974, as amended (5 U.S.C. 552a(m)), and to applicable Federal and state laws and regulations pertaining to debt collection practices, including the Fair Debt Collection Practices Act, 15 U.S.C. 1692. The contractor shall be strictly accountable for all amounts collected.
(c) The contractor shall be required to provide to the MSPB any data contained in its files relating to the debt account upon agency request or upon returning an account to the MSPB for referral to the Department of Justice for litigation.
§ 1215.31 Referral to the Department of Justice or the General Accounting Office.
Debts over $600 but less than $100,000 which the MSPB determines can neither be collected nor otherwise disposed of will be referred for litigation to the United States Attorney in whose judicial district the debtor is located. Claims for amounts exceeding $100,000 shall be referred for litigation to the Commercial Litigation Branch, Civil Division of the Department of Justice.
§ 1215.32 Compromise, suspension and termination.
(a) The Chairman of the MSPB or his designee may compromise, suspend or terminate the collection of debts where the outstanding principal is not greater than $20,000. MSPB procedures for writing off outstanding accounts are available to the public.
(b) The Chairman of the MSPB may compromise, suspend or terminate collection of debts where the outstanding principal is greater than $20,000 only with the approval of, or by referral to the United States Attorney or the Department of Justice.
(c) The Chairman of the MSPB will refer to the General Accounting Office (GAO) debts arising from GAO audit exceptions.
§ 1215.33 Omissions not a defense.
Failure to comply with any provisions of this rule may not serve as a defense to any debtor.
PART 1216 – TESTIMONY BY MSPB EMPLOYEES RELATING TO OFFICIAL INFORMATION AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS
Subpart A – General Provisions
§ 1216.101 Scope and purpose.
(a) This part establishes policy, assigns responsibilities and prescribes procedures with respect to:
(1) The production or disclosure of official information or records by MSPB employees, advisors, and consultants; and
(2) The testimony of current and former MSPB employees, advisors, and consultants relating to official information, official duties, or the MSPB’s record, in connection with federal or state litigation in which the MSPB is not a party.
(b) The MSPB intends this part to:
(1) Conserve the time of MSPB employees for conducting official business;
(2) Minimize the involvement of MSPB employees in issues unrelated to MSPB’s mission;
(3) Maintain the impartiality of MSPB employees in disputes between private litigants; and
(4) Protect sensitive, confidential information and the deliberative processes of the MSPB.
(c) In providing for these requirements, the MSPB does not waive the sovereign immunity of the United States.
(d) This part provides guidance for the internal operations of MSPB. It does not create any right or benefit, substantive or procedural, that a party may rely upon in any legal proceeding against the United States.
§ 1216.102 Applicability.
This part applies to demands and requests to current and former employees, advisors, and consultants for factual or expert testimony relating to official information or official duties or for production of official records or information, in legal proceedings in which the MSPB is not a named party. This part does not apply to:
(a) Demands upon or requests for an MSPB employee to testify as to facts or events that are unrelated to his or her official duties or that are unrelated to the functions of the MSPB;
(b) Demands upon or requests for a former MSPB employee to testify as to matters in which the former employee was not directly or materially involved while at the MSPB;
(c) Requests for the release of records under the Freedom of Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; or
(d) Congressional demands and requests for testimony, records or information.
§ 1216.103 Definitions.
The following definitions apply to this part.
(a) Demand means an order, subpoena, or other command of a court or other competent authority for the production, disclosure, or release of records or for the appearance and testimony of an MSPB employee in a legal proceeding.
(b) General Counsel means the General Counsel of the MSPB or a person to whom the General Counsel has delegated authority under this part.
(c) Legal proceeding means any matter before a court of law, administrative board or tribunal, commission, administrative law judge, hearing officer or other body that conducts a legal or administrative proceeding. Legal proceeding includes all phases of litigation.
(d) MSPB means the Merit Systems Protection Board.
(e) MSPB employee or employee means:
(1)(i) Any current or former employee of the MSPB;
(ii) Any other individual hired through contractual agreement by or on behalf of the MSPB or who has performed or is performing services under such an agreement for the MSPB; and
(iii) Any individual who served or is serving in any consulting or advisory capacity to the MSPB, whether formal or informal.
(2) This definition does not include persons who are no longer employed by the MSPB and who agree to testify about general matters, matters available to the public, or matters with which they had no specific involvement or responsibility during their employment with the MSPB.
(f) Records or official records and information all information in the custody and control of the MSPB, relating to information in the custody and control of the MSPB, or acquired by an MSPB employee in the performance of his or her official duties or because of his or her official status, while the individual was employee by or on behalf of the MSPB.
(g) Request means any informal request, by whatever method, for the production of records and information or for testimony which has not been ordered by a court of other competent authority.
(h) Testimony means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations, interviews, and statements made by an individual in connection with a legal proceeding.
Subpart B – Demands or Requests for Testimony and Production of Documents
§ 1216.201 General prohibition.
No employee may produce official records and information or provide any testimony relating to official information in response to a demand or request without the prior, written approval of the General Counsel.
§ 1216.202 Factors the MSPB will consider.
The General Counsel, in his or her sole discretion, may grant an employee permission to testify on matters relating to official information, or produce official records and information, in response to a demand or request. Among the relevant factors that the General Counsel may consider in making this decision are whether:
(a) The purposes of this part are met;
(b) Allowing such testimony or production of records would be necessary to prevent a miscarriage of justice;
(c) Allowing such testimony or production of records would assist or hinder the MSPB in performing its statutory duties;
(d) Allowing such testimony or production of records would be in the best interest of the MSPB or the United States;
(e) The records or testimony can be obtained from other sources;
(f) The demand or request is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rule of procedure governing the case or mater in which the demand or request arose;
(g) Disclosure would violate a statute, Executive Order or regulation;
(h) Disclosure would reveal confidential, sensitive, or privileged information, trade secrets or similar, confidential or financial information, otherwise protected information, or information which would otherwise be inappropriate for release;
(i) Disclosure would impede or interfere with an ongoing law enforcement investigation or proceeding, or compromise constitutional rights or national security interests;
(j) Disclosure would result in the MSPB appearing to favor one litigant over another;
(k) Whether the request was served before the demand;
(l) A substantial Government interest is implicated;
(m) The demand or request is within the authority of the party making it; and
(n) The demand or request is sufficiently specific to be answered.
§ 1216.203 Filing requirements for litigants seeking documents or testimony.
A litigant must comply with the following requirements when filing a request for official records and information or testimony under this part. A request should be filed before a demand.
(a) The request must be in writing and must be submitted to the Clerk of the Board who will immediately forward the request to the General Counsel.
(b) The written request must contain the following information:
(1) The caption of the legal proceeding, docket number, and name and address of the court or other authority involved;
(2) A copy of the complaint or equivalent document setting forth the assertions in the case and any other pleading or document necessary to show relevance;
(3) A list of categories of records sought, a detailed description of how the information sought is relevant to the issues in the legal proceeding, and a specific description of the substance of the testimony or records sought;
(4) A statement as to how the need for the information outweighs any need to maintain the confidentiality of the information and outweighs the burden on the MSPB to produce the records or provide testimony;
(5) A statement indicating that the information sought is not available from another source, from other persons or entities, or from the testimony of someone other than an MSPB employee, such as a retained expert;
(6) If testimony is requested, the intended use of the testimony, and a showing that no document could be provided and used in lieu of testimony;
(7) A description of all prior decisions, orders, or pending motions in the case that bear upon the relevance of the requested records or testimony;
(8) The name, address, and telephone number of counsel to each party in the case; and
(9) An estimate of the amount of time that the requester and other parties will require for each MSPB employee for time spent by the employee to prepare for testimony, in travel, and for attendance in the legal proceeding.
(c) The MSPB reserves the right to require additional information to complete the request where appropriate.
(d) The request should be submitted at least 30 days before the date that records or testimony is required. Requests submitted in less than 30 days before records or testimony is required must be accompanied by a written explanation stating the reasons for the late request and the reasons for expedited processing.
(e) Failure to cooperate in good faith to enable the General Counsel to make an informed decision may serve as the basis for a determination not to comply with the request.
(f) The request should state that the requester will provide a copy of the MSPB employee’s statement free of charge and that the requester will permit the MSPB to have a representative present during the employee’s testimony.
§ 1216.204 Service of requests or demands.
Requests or demands for official records or information or testimony under this subpart must be served on the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419-0002 by mail, fax, or e-mail and clearly marked “Part 1216 Request for Testimony or Official Records in Legal Proceedings.” The request or demand will be immediately forwarded to the General Counsel for processing.
§ 1216.205 Processing requests or demands.
(a) After receiving service of a request or demand for testimony, the General Counsel will review the request and, in accordance with the provisions of this subpart, determine whether, or under what conditions, to authorize the employee to testify on matters relating to official information and/or produce official records and information.
(b) Absent exigent circumstances, the MSPB will issue a determination within 30 days from the date the request is received.
(c) The General Counsel may grant a waiver of any procedure described by this subpart where a waiver is considered necessary to promote a significant interest of the MSPB or the United States, or for other good cause.
(d) Certification (authentication) of copies of records. The MSPB may certify that records are true copies in order to facilitate their use as evidence. If a requester seeks certification, the requester must request certified copies from the MSPB at least 30 days before the date they will be needed. The request should be sent to the Clerk of the Board.
§ 1216.206 Final determination.
The General Counsel makes the final determination on demands to requests to employees for production of official records and information or testimony in litigation in which the MSPB is not a party. All final determinations are within the sole discretion of the General Counsel. The General Counsel will notify the requester and, when appropriate, the court of other competent authority of the final determination, the reasons for the grant or denial of the request, and any conditions that the General Counsel may impose on the release of records or information, or on the testimony of an MSPB employee. The General Counsel’s decision exhausts administrative remedies for discovery of the information.
§ 1216.207 Restrictions that apply to testimony.
(a) The General Counsel may impose conditions or restrictions on the testimony of MSPB employees including, for example:
(1) Limiting the areas of testimony;
(2) Requiring the requester and other parties to the legal proceeding to agree that the transcript of the testimony will be kept under seal;
(3) Requiring that the transcript will be used or made available only in the particular legal proceeding for which testimony was requested. The General Counsel may also require a copy of the transcript of testimony at the requester’s expense.
(b) The MSPB may offer the employee’s written declaration in lieu of testimony.
(c) If authorized to testify pursuant to this part, an employee may testify as to facts within his or her personal knowledge, but, unless specifically authorized to do so by the General Counsel, the employee shall not;
(1) Disclose confidential or privileged information; or
(2) For a current MSPB employee, testify as an expert or opinion witness with regard to any matter arising out of the employee’s official duties or the functions of the MSPB unless testimony is being given on behalf of the United States (see also 5 CFR 2635.805).
(d) The scheduling of an employee’s testimony, including the amount of time that the employee will be made available for testimony, will be subject to the MSPB’s approval.
§ 1216.208 Restrictions that apply to released records.
(a) The General Counsel may impose conditions or restrictions on the release of official records and information, including the requirement that parties to the proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure. The terms of the protective order or of a confidentiality agreement must be acceptable to the General Counsel. In cases where protective orders or confidentiality agreements have already been executed, the MSPB may condition the release of official records and information on an amendment to the existing protective order or confidentiality agreement.
(b) If the General Counsel so determines, original MSPB records may be presented for examination in response to a request, but they may not be presented as evidence or otherwise used in a manner by which they could lose their identity as official MSPB records, nor may they be marked or altered. In lieu of the original records, certified copies may be presented for evidentiary purposes.
§ 1216.209 Procedure when a decision is not made prior to the time a response is required.
If a response to a demand or request is required before the General Counsel can make the determination referred to in § 1216.206, the General Counsel, when necessary, will provide the court or other competent authority with a copy of this part, inform the court or other competent authority that the request is being reviewed, provide an estimate as to when a decision will be made, and seek a stay of the demand or request pending a final determination.
§ 1216.210 Procedure in the event of an adverse ruling.
If the court or other competent authority fails to stay a demand or request, the employee upon whom the demand or request is made, unless otherwise advised by the General Counsel, will appear, if necessary, at the stated time and place, produce a copy of this part, state that the employee has been advised by counsel not to provide the requested testimony or produce documents, and respectfully decline to comply with the demand or request, citing United States ex rel. Touchy v. Ragen, 340 U.S. 462 (1951).
Subpart C – Schedule of Fees
§ 1216.301 Fees.
(a) Generally. The General Counsel may condition the production of records or appearance for testimony upon advance payment of a reasonable estimate of the costs to the MSPB.
(b) Fees for records. Fees for producing records will include fees for searching, reviewing, and duplicating records, costs of attorney time spent in reviewing the request, and expenses generated by materials and equipment used to search for, produce, and copy the responsive information. Costs for employee time will be calculated on the basis of the hourly pay of the employee (including all pay, allowances, and benefits). Fees for duplication will be the same as those charged by the MSPB in its Freedom of Information Act regulations at 5 CFR part 1204.
(c) Witness fees. Fees for attendance by a witness will include fees, expenses, and allowances prescribed by the court’s rules. If no such fees are prescribed, witness fees will be determined based upon the rule of the Federal district closest to the location where the witness will appear and on 28 U.S.C. 1821, as applicable. Such fees will include cost of time spent by the witness to prepare for testimony, in travel and for attendance in the legal proceeding, plus travel costs.
(d) Payment of fees. A requester must pay witness fees for current MSPB employees and any record certification fees by submitting to the Clerk of the Board a check or money order for the appropriate amount made payable to the Treasury of the United States. In the case of testimony of former MSPB employees, the request must pay applicable fees directly to the former MSPB employee in accordance with 28 U.S.C. 1821 or other applicable statutes.
(e) Waiver or reduction of fees. The General Counsel, in his or her sole discretion, may, upon a showing of reasonable cause, waive or reduce any fees in connection with the testimony, production, or certification of records.
(f) De minimis fees. Fees will not be assessed if the total charge would be $10.00 or less.
Subpart D – Penalties
§ 1216.401 Penalties.
(a) An employee who discloses official records or information or gives testimony relating to official information, except as expressly authorized by the MSPB, or as ordered by a Federal court after the MSPB has had the opportunity to be heard, may face the penalties provided in 18 U.S.C. 641 and other applicable laws. Additionally, former MSPB employees are subject to the restrictions and penalties of 18 U.S.C. 207 and 216.
(b) A current MSPB employee who testifies or produces official records and information in violation of this part shall be subject to disciplinary action.
PARTS 1217-1299 [RESERVED]
CHAPTER III – OFFICE OF MANAGEMENT AND BUDGET
SUBCHAPTER A – ADMINISTRATIVE PROCEDURES
PART 1300 – STANDARDS OF CONDUCT
§ 1300.1 Cross-reference to employees ethical conduct standards and financial disclosure regulations.
Employees of the Office of Management and Budget are subject to the executive branch-wide standards of ethical conduct at 5 CFR part 2635, OMB’s regulations at 5 CFR part 8701 which supplement the executive branch-wide standards, and the executive branch-wide financial disclosure regulations at 5 CFR part 2634.
PART 1302 – PRIVACY ACT PROCEDURES
§ 1302.1 Rules for determining if an individual is the subject of a record.
(a) Individuals desiring to know if a specific system of records maintained by the Office of Management and Budget contains a record pertaining to them should address their inquiries to the Assistant to the Director for Administration, Office of Management and Budget, Washington, DC 20503. The written inquiry should contain a specific reference to the system of records maintained by OMB listed in the OMB Notices of Systems of Records or it should describe the type of record in sufficient detail to reasonably identify the system of records. Notice of OMB systems of records subject to the Privacy Act will be made in the
(b) At a minimum, the request should also contain sufficient information to identify the requester in order to allow OMB to determine if there is a record pertaining to that individual in a particular system of records. In instances when the information is insufficient to insure disclosure to the individual to whom the information pertains, in view of the sensitivity of the information, OMB reserves the right to ask the requester for additional identifying information.
(c) Ordinarily the requester will be informed whether the named system of records contains a record pertaining to the requester within 10 days of receipt of such a request (excluding Saturdays, Sundays, and legal Federal holidays). Such a response will also contain or reference the procedures which must be followed by the individual making the request in order to gain access to the record.
(d) Whenever a response cannot be made within the 10 days, the Assistant to the Director for Administration will inform the requester of the reasons for the delay and the date by which a response may be anticipated.
§ 1302.2 Requests for access.
(a) Requirement for written requests. Individuals desiring to gain access to a record pertaining to them in a system of records maintained by OMB must submit their request in writing in accordance with the procedures set forth in paragraph (b) of this section. Due to security measures in effect in both the Old and New Executive Office Buildings, requests made in person (walk-ins) cannot be accepted, except that individuals who are employed by the Office of Management and Budget may make their request on a regularly scheduled workday (Monday through Friday, excluding legal Federal holidays) between the hours of 9:00 a.m. and 5:30 p.m. Such requests for access by individuals employed by OMB need not be made in writing.
(b) Procedures – (1) Content of the Request. (i) The request for access to a record in a system of records shall be addressed to the Assistant to the Director for Administration, at the address cited above, and shall name the system of records or contain a description (as concise as possible) of such system of records. The request should state that the request is pursuant to the Privacy Act of 1974. In the absence of specifying solely the Privacy Act of 1974 and, if the request may be processed under both the Freedom of Information Act and the Privacy Act and the request specifies both or neither act, the procedures under the Privacy Act of 1974 will be employed. The individual will be advised that the procedures of the Privacy Act will be utilized, of the existence and the general effect of the Freedom of Information Act, and the difference between procedures under the two acts (e.g. fees, time limits, access). The request should contain necessary information to verify the identity of the requester (see § 1302.2(b)(2)(vi), of this part) . In addition, the requester should include any other information which may assist in the rapid identification of the record for which access is being requested (e.g., maiden name, dates of employment, etc.) as well as any other identifying information contained in and required by the OMB Notice of Systems of Records.
(ii) If the request for access follows a prior request under § 1302.1, of this part, the same identifying information need not be included in the request for access if a reference is made to that prior correspondence, or a copy of the OMB response to that request is attached.
(iii) If the individual specifically desires a copy of the record, the request should so specify.
(2) OMB action on request. A request for access will ordinarily be answered within 10 days, except when the Assistant to the Director for Administration determines that access cannot be afforded in that time, in which case the requester will be informed of the reason for the delay and an estimated date by which the request will be answered. Normally, access will be granted within 30 days from the date the request was received by the Office of Management and Budget. At a minimum, the answer to the request for access shall include the following:
(i) A statement that there is a record as requested or a statement that there is not a record in the system of records maintained by OMB;
(ii) A statement as to whether access will be granted only by providing a copy of the record through the mail; or the address of the location and the date and time at which the record may be examined. In the event the requester is unable to meet the specified date and time, alternative arrangements may be made with the official specified in § 1302.2(b)(1) of this part;
(iii) A statement, when appropriate, that examination in person will be the sole means of granting access only when the Assistant to the Director for Administration has determined that it would not unduly impede the requester’s right of access;
(iv) The amount of fees charged, if any (see § 1302.6 of this part). (Fees are applicable only to requests for copies.);
(v) The name, title, and telephone number of the OMB official having operational control over the record; and
(vi) The documentation required by OMB to verify the identity of the requester. At a minimum, OMB’s verification standards include the following:
(A) Current or former OMB employees. Current or former OMB employees requesting access to a record pertaining to them in a system of records maintained by OMB may, in addition to the other requirements of this section, and at the sole discretion of the official having operational control over the record, have his or her identity verified by visual observation. If the current or former OMB employee cannot be so identified by the official having operational control over the records, identification documentation will be required. Employee identification cards, annuitant identification, driver licenses, or the “employee copy” of any official personnel document in the record are examples of acceptable identification validation.
(B) Other than current or former OMB employees. Individuals other than current or former OMB employees requesting access to a record pertaining to them in a system of records maintained by OMB must produce identification documentation of the type described herein, prior to being granted access. The extent of the identification documentation required will depend on the type of record to be accessed. In most cases, identification verification will be accomplished by the presentation of two forms of identification. Any additional requirements are specified in the system notices published pursuant to 5 U.S.C. 552a(e)(4).
(C) Access granted by mail. For records to be accessed by mail, the Assistant to the Director for Administration shall, to the extent possible, establish identity by a comparison of signatures in situations where the data in the record is not so sensitive that unauthorized access could cause harm or embarrassment to the individual to whom they pertain. No identification documentation will be required for the disclosure to the requester of information required to be made available to the public by 5 U.S.C. 552. When, in the opinion of the Assistant to the Director for Administration, the granting of access through the mail could reasonably be expected to result in harm or embarrassment if disclosed to a person other than the individual to whom the record pertains, a notarized statement of identity or some similar assurance of identity will be required.
(D) Unavailability of identification documentation. If an individual is unable to produce adequate identification documentation the individual will be required to sign a statement asserting identity and acknowledging that knowingly or willfully seeking or obtaining access to records about another person under false pretenses may result in a fine of up to $5,000. In addition, depending upon the sensitivity of the records sought to be accessed, the official having operational control over the records may require such further reasonable assurances as may be considered appropriate; e.g., statements of other individuals who can attest to the identity of the requester. No verification of identity will be required of individuals seeking access to records which are otherwise available to any person under 5 U.S.C. 552, Freedom of Information Act.
(E) Access by the parent of a minor, or legal guardian. A parent of a minor, upon presenting suitable personal identification, may access on behalf of the minor any record pertaining to the minor maintained by OMB in a system of records. A legal guardian may similarly act on behalf of an individual declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, absent a court order or consent, a parent or legal guardian has no absolute right to have access to a record about a child. Minors are not precluded from exercising on their own behalf rights given to them by the Privacy Act.
(F) Granting access when accompanied by another individual. When an individual requesting access to his or her record in a system of records maintained by OMB wishes to be accompanied by another individual during the course of the examination of the record, the individual making the request shall submit to the official having operational control of the record, a signed statement authorizing that person access to the record.
(G) Denial of access for inadequate identification documentation. If the official having operation control over the records in a system of records maintained by OMB determines that an individual seeking access has not provided sufficient identification documentation to permit access, the official shall consult with the Assistant to the Director for Administration prior to finally denying the individual access.
(H) Review of decision to deny access. Whenever the Assistant to the Director for Administration determines, in accordance with the procedures herein, that access cannot be granted, the response will also include a statement of the procedures to obtain a review of the decision to deny in accordance with § 1302.5 of this part.
(vii) Exceptions. Nothing in these regulations shall be construed to entitle an individual the right to access to any information compiled in reasonable anticipation of a civil action or proceedings. The mere fact that records in a system of records are frequently the subject of litigation does not bring those systems of records within the scope of this provision. This provision is not intended to preclude access by an individual to records which are available to that individual under other processes such as the Freedom of Information Act or the rules of civil procedure.
§ 1302.3 Access to the accounting of disclosures from records.
Rules governing the granting of access to the accounting of disclosures are the same as those for granting access to the records (including verification of identity) outlined in § 1302.2, of this part.
§ 1302.4 Requests to amend records.
(a) Requirement for written requests. Individuals desiring to amend a record that pertain to them in a system of records maintained by OMB, must submit their request in writing in accordance with the procedures set forth herein unless this requirement is waived by the official having responsibility for the system of records. Records not subject to the Privacy Act of 1974 will not be amended in accordance with these provisions. However, individuals who believe that such records are inaccurate may bring this to the attention of OMB.
(b) Procedures. (1) (i) The request to amend a record in a system of records shall be addressed to the Assistant to the Director for Administration. Included in the request shall be the name of the system and a brief description of the record proposed for amendment. In the event the request to amend the record is the result of the individual’s having gained access to the record in accordance with the provisions concerning access to records as set forth above, copies of previous correspondence between the requester and OMB will serve in lieu of a separate description of the record.
(ii) When the individual’s identity has been previously verified pursuant to § 1302.2(b)(2)(vi) herein, further verification of identity is not required as long as the communication does not suggest that a need for verification is present. If the individual’s identity has not been previously verified, OMB may require identification validation as described in § 1302.2(b)(2)(vi). Individuals desiring assistance in the preparation of a request to amend a record should contact the Assistant to the Director for Administration at the address cited above.
(iii) The exact portion of the record the individual seeks to have amended should be clearly indicated. If possible, the proposed alternative language should also be set forth, or at a minimum, the facts which the individual believes are not accurate, relevant, timely, or complete should be set forth with such particularity as to permit OMB not only to understand the individual’s basis for the request, but also to make an appropriate amendment to the record.
(iv) The request must also set forth the reasons why the individual believes his record is not accurate, relevant, timely, or complete. In order to avoid the retention by OMB of personal information merely to permit verification of records, the burden of persuading OMB to amend a record will be upon the individual. The individual must furnish sufficient facts to persuade the official in charge of the system of the inaccuracy, irrelevancy, timeliness, or incompleteness of the record.
(v) Incomplete or inaccurate requests will not be rejected categorically. The individual will be asked to clarify the request as needed.
(2) OMB action on the request. To the extent possible, a decision upon a request to amend a record will be made within 10 days, excluding Saturdays, Sundays, and legal Federal holidays. The response reflecting the decision upon a request for amendment will include the following:
(i) The decision of the Office of Management and Budget whether to grant in whole, or deny any part of the request to amend the record.
(ii) The reasons for the determination for any portion of the request which is denied.
(iii) The name and address of the official with whom an appeal of the denial may be lodged.
(iv) The name and address of the official designated to assist, as necessary, and upon request of, the individual making the request in the preparation of the appeal.
(v) A description of the review of the appeal within OMB (see § 1302.5 of this part).
(vi) A description of any other procedures which may be required of the individual in order to process the appeal.
§ 1302.5 Request for review.
(a) Individuals wishing to request a review of the decision by OMB with regard to an initial request to access or amend a record in accordance with the provisions of §§ 1302.2 and 1302.4 of this part, should submit the request for review in writing and, to the extent possible, include the information specified in § 1302.5(b), below. Individuals desiring assistance in the preparation of their request for review should contact the Assistant to the Director for Administration at the address provided herein.
(b) The request for review should contain a brief description of the record involved or in lieu thereof, copies of the correspondence from OMB in which the request to access or to amend was denied and also the reasons why the requester believes that access should be granted or the disputed information amended. The request for review should make reference to the information furnished by the individual in support of his claim and the reasons as required by §§ 1302.2 and 1302.4 of this part set forth by OMB in its decision denying access or amendment. Appeals filed without a complete statement by the requester setting forth the reasons for the review will, of course, be processed. However, in order to make the appellate process as meaningful as possible, the requester’s disagreement should be set forth in an understandable manner. In order to avoid the unnecessary retention of personal information, OMB reserves the right to dispose of the material concerning the request to access or amend a record if no request for review in accordance with this section is received by OMB within 180 days of the mailing by OMB of its decision upon an initial request. A request for review received after the 180 day period may, at the discretion of the Assistant to the Director for Administration, be treated as an initial request to access or amend a record.
(c) The request for review should be addressed to the Assistant to the Director for Administration.
(d) Upon receipt of a request for review, the Assistant to the Director for Administration will convene a review group composed of the Assistant to the Director for Administration, the General Counsel, or their designees, and the official having operational control over the record. This group will review the basis for the requested review and will develop a recommended course of action to the Deputy Director. If at any time additional information is required from the requester, the Assistant to the Director for Administration is authorized to acquire it or authorize its acquisition from the requester.
(e) The Office of Management and Budget has established an internal Committee on Freedom of Information and Privacy (hereinafter referred to as the Committee). The Committee is composed of:
(1) Deputy Director;
(2) Assistant to the Director for Administration;
(3) General Counsel;
(4) Assistant Director for Budget Review;
(5) Assistant Director for Legislative Reference;
(6) Assistant to the Director for Public Affairs;
(7) Deputy Associate Director for Information Systems;
(8) Deputy Associate Director for Statistical Policy;
(9) Deputy Associate Director for National Security;
(10) Budget and Management Officer;
(11) Personnel Officer.
(f) The Committee, when directed by the Assistant to the Director for Administration, will review the Office’s administration of the Freedom of Information and Privacy Acts and make recommendations for the improvement thereto. In addition, the Committee, upon the request of the Deputy Director, may evaluate a request for review or appeal and recommend a decision to the Deputy Director, who has the final authority regarding appeals.
(g) The Deputy Director will inform the requester in writing of the decision on the request for review within 20 days (excluding Saturdays, Sundays, and legal Federal holidays) from the date of receipt by OMB of the individual’s request for review unless the Deputy Director extends the 20 day period for good cause. The extension and the reasons therefor will be sent by OMB to the requester within the initial 20 day period. Such extensions should not be routine and should not normally exceed an additional thirty days. If the decision does not grant in full the request for amendment, the notice of the decision will provide a description of the steps the individual may take to obtain judicial review of such a decision, a statement that the individual may file a concise statement with OMB setting forth the individual’s reasons for his disagreement with the decision and the procedures for filing such a statement of disagreement. The Assistant to the Director for Administration has the authority to determine the “conciseness” of the statement, taking into account the scope of the disagreement and the complexity of the issues. Upon the filing of a proper concise statement by the individual, any subsequent disclosure of the information in dispute will be clearly noted so that the fact that the record is disputed is apparent, a copy of the concise statement furnished and a concise statement by OMB setting forth its reasons for not making the requested changes, if OMB chooses to file such a statement. A notation of a dispute is required to be made only if an individual informs the agency of his disagreement with OMB’s determination in accordance with § 1302.5 (a), (b) and (c). A copy of the individual’s statement, and if it chooses, OMB’s statement will be sent to any prior transferee of the disputed information who is listed on the accounting required by 5 U.S.C. 552a(c). If the reviewing official determines that the record should be amended in accordance with the individual’s request, OMB will promptly correct the record, advise the individual, and inform previous recipients if an accounting of the disclosure was made pursuant to 5 U.S.C. 552(a)(c). The notification of correction pertains to information actually disclosed.
§ 1302.6 Schedule of fees.
(a) Prohibitions against charging fees. Individuals will not be charged for:
(1) The search and review of the record,
(2) Any copies of the record produced as a necessary part of the process of making the record available for access, or
(3) Any copies of the requested record when it has been determined that access can only be accomplished by providing a copy of the record through the mail.
(b) Waiver. The Assistant to the Director for Administration may at no charge, provide copies of a record if it is determined the production of the copies is in the interest of the Government.
(c) Fee schedule and method of payment. Fees will be charged as provided below except as provided in paragraphs (a) and (b) of this section.
(1) Duplication of records. Records will be duplicated at a rate of $.10 per page for all copying of 4 pages or more. There is not charge for duplication 3 or fewer pages.
(2) Where it is anticipated that the fees chargeable under this section will amount to more than $25.00, the requester shall be promptly notified of the amount of the anticipated fee or such portion thereof as can readily be estimated. In instances where the estimated fees will greatly exceed $25.00, an advance deposit may be required. The notice or request for an advance deposit shall extend an offer to the requester to consult with Office personnel in order to reformulate the request in a manner which will reduce the fees, yet still meet the needs of the requester.
(3) Fees should be paid in full prior to issuance of requested copies. In the event the requester is in arrears for previous requests copies will not be provided for any subsequent request until the arrears have been paid in full.
(4) Remittances shall be in the form either of a personal check or bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made payable to the order of the Treasury of the United States and mailed or delivered to the Assistant to the Director for Administration, Office of Management and Budget, Washington, DC 20503.
(5) A receipt for fees paid will be given upon request.
PART 1303 – PUBLIC INFORMATION PROVISIONS OF THE ADMINISTRATIVE PROCEDURES ACT
General
§ 1303.1 Purpose.
This part implements the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, and prescribes the rules governing the public availability of Office of Management and Budget (OMB) records. The rules in this subpart should be read in conjunction with the text of the FOIA.
§ 1303.2 Authority and functions.
The general functions of OMB, as provided by statute and by executive order, are to develop and to execute the budget, oversee implementation of Administration policies and programs, advise and assist the President, and develop and implement management policies for the government.
§ 1303.3 Organization.
(a) The central organization of OMB is as follows:
(1) The Director’s Office includes the Director, the Deputy Director, the Deputy Director for Management, and the Executive Associate Director.
(2) Staff Offices include General Counsel, Legislative Affairs, Communications, Management and Operations, and Economic Policy.
(3) Offices that provide OMB-wide support include the Legislative Reference Division and the Budget Review Division.
(4) Resource Management Offices, which develop and support the President’s management and budget agenda in the areas of Natural Resources, Energy and Science; National Security; Health; Education, Income Maintenance and Labor; and General Government Programs.
(5) Statutory offices include the Offices of Federal Financial Management, Federal Procurement Policy, Intellectual Property Enforcement Coordinator; E-government and Information Technology; and Information and Regulatory Affairs.
(b) OMB is located in the Eisenhower Executive Office Building, 17th Street and Pennsylvania Avenue NW, and the New Executive Office Building, 725 17th Street NW, Washington, DC 20503. OMB has no field offices. Security in both buildings prevents visitors from entering the building without an appointment.
Proactive Disclosures
§ 1303.10 Availability of proactive disclosures.
OMB makes available records that are required by the FOIA to be made available for public inspection in an electronic format. OMB information pertaining to matters issued, adopted, or promulgated by OMB that is within the scope of 5 U.S.C. 552(a)(2) is available electronically on OMB’s website at www.whitehouse.gov/omb/. Additionally, for help accessing these materials, you may contact OMB’s FOIA Officer at (202) 395-3642.
§ 1303.20 Where to send requests.
The FOIA Officer is responsible for acting on all initial requests. Individuals wishing to file a request under the FOIA should address their request in writing to FOIA Officer, Office of Management and Budget, 725 17th Street NW, Room 9204, Washington, DC 20503, via fax to (202) 395-3504, or by email at [email protected]. Additionally, OMB’s FOIA Public Liaison is available to assist requesters who have questions and can be reached at (202) 395-7545 or in writing at the address provided in this section.
§ 1303.21 Requesters making requests about themselves or others.
A requester who is making a request for records about himself or herself pursuant to 5 U.S.C. 552a must comply with the verification of identity requirements as determined by OMB pursuant to OMB’s Rules For Determining if an Individual Is the Subject of a Record in 5 CFR 1302.1. Where a request for records pertains to another individual, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (e.g., a copy of a death certificate or an obituary). As an exercise of administrative discretion, OMB may require a requester to supply additional information if necessary in order to verify that a particular individual has consented to disclosure.
§ 1303.22 Requirement for providing description of the records sought.
(a) Requesters must describe the records sought in sufficient detail to enable OMB personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include specific information that may help the agency identify the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. Before submitting their requests, requesters may contact the FOIA Officer or FOIA Public Liaison to discuss the records they seek and to receive assistance in describing the records.
(b) If, after receiving a request, OMB determines that the request does not reasonably describe the records sought, OMB will inform the requester what additional information is needed and why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with the FOIA Officer or the FOIA Public Liaison. If a request does not reasonably describe the records sought, OMB’s response to the request may be delayed.
Responsibility for Responding to Requests
§ 1303.30 Responsibility for responding to requests.
(a) Search cutoff date. In determining which records are responsive to a request, OMB ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, OMB will inform the requester of that date.
(b) Transfer of records to the National Archives and Records Administration (NARA). Permanent records of OMB which have been transferred to the control of NARA under the Federal Records Act are not in the control of OMB and are therefore not accessible by a FOIA request to OMB. Requests for such records should be directed to NARA.
(c) Consultation and referral. When reviewing records, OMB will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, OMB will proceed in one of the following ways:
(1) Consultation. When records contain information of interest to another agency, OMB typically will consult with that agency prior to making a release determination.
(2) Referral. (i) When OMB believes that a different agency is best able to determine whether to disclose the record, OMB will refer the responsibility for responding to the request regarding that record to that agency. Ordinarily, the agency that originated the record is best situated to make the disclosure determination. However, if OMB and the originating agency jointly agree that OMB is in the best position to respond regarding the record, then OMB may provide it.
(ii) If OMB determines that another agency is best situated to consider a request, OMB promptly will notify the requestor and inform him of the agency which will be processing his request, except when disclosure of the identity of the agency could harm an interest protected by an applicable FOIA exemption. In those instances, in order to avoid harm to an interest protected by an applicable exemption, OMB will coordinate with the originating agency to seek its views on the disclosability of the record and convey the release determination for the record that is the subject of the coordination to the requester.
Timing of Responses to Requests
§ 1303.40 Timing of responses to requests.
(a) In general. Upon receipt of any request for information or records, the FOIA Officer will determine within 20 working days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such request whether it is appropriate to grant the request and will immediately notify the requester of such determination and the reasons therefore and the right of such person to seek assistance from the FOIA Public Liaison. The 20-day period, as used herein, shall commence on the date on which the FOIA Officer or the FOIA Public Liaison first receives the request but in any event not later than 10 working days after the request is first received by any component’s office that is designated by these regulations to receive requests. OMB may toll this 20-day period either one time while OMB is awaiting information that it has reasonably requested from the requester or any time when necessary to clarify with the requester issues regarding fee assessment. OMB’s receipt of the requester’s response to OMB’s request for information ends the tolling period.
(b) Multitrack processing. (1) FOIA requests are placed on one of three tracks:
(i) Track one covers those requests that seek and receive expedited processing pursuant to subsection (a)(6)(E) of the FOIA and in accordance with paragraph (e) of this section;
(ii) Track two covers simple requests;
(iii) Track three covers complex requests.
(2) Whether a request is simple or complex is based on the amount of work or time needed to process the request. OMB considers various factors, including the number of records requested, the number of pages involved in processing the request, and the need for consultations or referrals. OMB will advise the requester of the processing track in which their request has been placed and provide an opportunity to narrow or modify their request so that the request can be placed in a different processing track.
(c) Unusual circumstances. Whenever the statutory time limit for processing a request cannot be met because of “unusual circumstances,” as defined in the FOIA, and OMB extends the time limit on that basis, OMB will, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which processing of the request can be expected to be completed. Where the extension exceeds 10 working days, OMB will, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing. OMB will alert requesters to the availability of its FOIA Public Liaison, who will assist in the resolution of any disputes between the requester and OMB, and notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services (OGIS).
(d) Aggregating requests. To satisfy unusual circumstances under the FOIA, OMB may aggregate those requests for the purposes of this section when OMB reasonably believes that a requester, or a group of requesters acting in concert, has submitted requests that constitute a single request, that would otherwise satisfy the unusual circumstances specified in this section. Multiple requests involving unrelated matters will not be aggregated.
(e) Expedited processing. (1) Requests and appeals will be given expedited treatment in cases where OMB determines:
(i) The lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
(ii) There is an urgency to inform the public about an actual or alleged Federal Government activity;
(iii) Failure to respond to the request expeditiously would result in the loss of due process rights in other proceedings; or
(iv) There are possible questions, in a matter of widespread and exceptional public interest, about the government’s integrity which effect public confidence.
(2) A request for expedited processing may be made at the time of the initial request for records or at any later time.
(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of the requester’s knowledge and belief, explaining in detail the basis for requesting expedited processing. OMB may waive this certification requirement at its discretion.
(4) OMB will decide whether to grant expedited processing and will notify the requester within 10 days after the date of the request. If a request for expedited treatment is granted, OMB will prioritize the request and process the request as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously.
Responses to Requests
§ 1303.50 Responses to requests.
(a) Acknowledgements of requests. OMB will assign an individualized tracking number to each request received that will take longer than ten days to process; and acknowledge each request, informing the requestor of their tracking number if applicable; and, upon request, make available information about the status of a request to the requester using the assigned tracking number, including –
(1) The date on which OMB originally received the request; and
(2) An estimated date on which OMB will complete action on the request.
(b) Grants of requests. Once OMB makes a determination to grant a request in full or in part, it will notify the requester in writing. OMB also will inform the requester of any fees charged under § 1303.9 and shall provide the requested records to the requester promptly upon payment of any applicable fees. OMB will inform the requester of the availability of the FOIA Public Liaison to offer assistance.
(c) Adverse determinations of requests. In the case of an adverse determination, the FOIA Officer will immediately notify the requester of –
(1) The right of the requester to appeal to the head of OMB within 90 calendar days after the date of such adverse determination in accordance with § 1303.70;
(2) The right of such person to seek dispute resolution services from the FOIA Public Liaison or the OGIS at NARA;
(3) The names and titles or positions of each person responsible for the denial of such request; and
(4) OMB’s estimate of the volume of any requested records OMB is withholding, unless providing such estimate would harm an interest protected by the exemption in 5 U.S.C. 552(b).
Confidential Commercial Information
§ 1303.60 Notification procedures for confidential commercial information.
(a) Definitions. (1) “Confidential commercial information” means commercial or financial information obtained by OMB from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
(2) “Submitter” means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, at the time of submission, any portion of its submission that it considers to be protected from disclosure under Exemption 4 of the FOIA. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.
(c) When notice to submitters is required. (1) OMB will promptly notify a submitter when OMB determines that a pending FOIA lawsuit seeks to compel the disclosure of records containing the submitter’s confidential information, or if OMB determines that it may be required to disclose such records, provided:
(i) The requested information has been designated by the submitter as information considered protected from disclosure under Exemption 4 in accordance with paragraph (b) of this section; or
(ii) OMB has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure.
(2) The notice will describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, OMB may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications.
(d) Exceptions to submitter notice requirements. The notice requirements of this section do not apply if:
(1) OMB determines that the information is exempt under the FOIA, and therefore will not be disclosed;
(2) The information has been lawfully published or has been officially made available to the public;
(3) Disclosure of the information is required by law, including regulation issued in accordance with the requirements of Executive Order 12,600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, OMB will give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a specified disclosure date.
(e) Opportunity to object to disclosure. (1) Unless OMB specifies a different period, submitters who fail to respond to OMB’s notice within 30 days of OMB’s notice will be deemed to have consented to disclosure.
(2) If a submitter has any objections to disclosure, it should provide OMB a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential. OMB is not required to consider any information received after the date of any disclosure decision.
(3) Any information provided by a submitter under this section may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. OMB will consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.
(g) Notice of intent to disclose. Whenever OMB decides to disclose information over the objection of a submitter, OMB will provide the submitter written notice, which will include:
(1) A statement of the reasons why each of the submitter’s disclosure objections were not sustained;
(2) A description of the information to be disclosed or copies of the records as OMB intends to release them; and
(3) A specified disclosure date, at least 30 days after OMB transmits its notice of intent to disclose, except for good cause.
(h) Requester notification. OMB will notify the requester whenever it provides the submitter with notice and an opportunity to object to disclosure; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.
Appeals
§ 1303.70 Appeals.
(a) A requester must appeal to the head of OMB in writing within 90 calendar days after the date of such adverse determination addressed to the FOIA Officer at the address specified in § 1303.20. The appeal must include a statement explaining the basis for the appeal. Determinations of appeals will be set forth in writing and signed by the Deputy Director, or his designee, within 20 working days. If on appeal the denial is upheld in whole or in part, the written determination will also contain a notification of the provisions for judicial review, the names of the persons who participated in the determination, and notice of the services offered by the OGIS as a non-exclusive alternative to litigation.
(b) OGIS’s dispute resolution services is a voluntary process. If OMB agrees to participate in the mediation services provided by OGIS, OMB will actively engage as a partner to the process in an attempt to resolve the dispute. An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation. Before seeking review by a court of an agency’s adverse determination, a requester generally must first submit a timely administrative appeal.
Preservation of Records
§ 1303.80 Preservation of records.
OMB will preserve all correspondence pertaining to the requests that it receives under this section, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or NARA’s General Records Schedule 4.2. OMB will not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
Fees
§ 1303.90 Definitions.
For the purpose of this part, all definitions set forth in the FOIA apply.
(a) The term “direct costs” means those expenditures that OMB actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Not included in direct costs are overhead expenses such as costs of space, heating, or lighting the facility in which the records are stored.
(b) The term “search” means the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of information within records and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format.
(c) The term “duplication” means the making of a copy of a document, or of the information contained in it, that is necessary to respond to a FOIA request. Such copies can be in the form of paper, microform, audio-visual materials, or electronic records (e.g., magnetic tape or disk), among others.
(d) The term “review” refers to the process of examining documents located in response to a request to determine whether any portion of any document located is permitted to be withheld. It also refers to the processing of any documents for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(e) The term “commercial use request” is a request that asks for information for a use or purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation.
(f) The term “educational institution” is any school that operates a program of teaching or scholarly research. To be eligible for inclusion in this category, requesters must show that the request is being made as authorized by and in connection with the requester’s role at a qualifying institution and that the records are not sought for commercial use, but are sought in furtherance of teaching or scholarly research. OMB may seek assurance from the requester that the request is in furtherance of teaching or scholarly research and will advise requesters of their placement in this category.
(g) The term “non-commercial scientific institution” refers to an institution that is not operated on a commercial basis (as that term is referenced in paragraph (e) of this section) and that is operated solely for the purpose of conducting scientific research where the results of the research are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and are not for a commercial use.
(h) The term “representative of the news media” refers to any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.
(i) The term “news” means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast “news” to the public at large and publishers of periodicals that disseminate “news” and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the internet. A request for records supporting the news-dissemination function of the requester will not be considered to be for a commercial use. “Freelance” journalists who demonstrate a solid basis for expecting publication through a news media entity will be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, OMB can also consider a requester’s past publication record in making this determination. OMB will advise requesters of their placement in this category.
§ 1303.91 Fees to be charged – general.
OMB will charge fees that recoup the full allowable direct costs it incurs. Moreover, it will use the most efficient and least costly methods to comply with requests for documents made under the FOIA. For example, employees should not engage in line-by-line search when merely duplicating an entire document would prove the less expensive and quicker method of complying with a request. Search should be distinguished, moreover, from review of material in order to determine whether the material is exempt from disclosure. When documents that would be responsive to a request are maintained for distribution by agencies operating statutory-based fee schedule programs (see definition in § 1303.30(b)), such as the NTIS, OMB will inform requesters of the steps necessary to obtain records from those sources.
(a) Search. Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. OMB will charge search fees for all other requesters, subject to the restrictions of paragraph (h) of this section.
(1) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be charged as follows: Professional – $10.00; and clerical/administrative – $4.75.
(2) Requesters shall be charged the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. Requesters shall be notified of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred.
(b) Review of records. Only requesters who are seeking documents for commercial use may be charged for time spent reviewing records to determine whether they are exempt from mandatory disclosure. Charges may be assessed only for the initial review; i.e., the review conducted by an agency to determine whether an exemption applies to a particular record or portion of a record. Records or portions of records withheld in full under an exemption that is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered. The direct costs for such a subsequent review are assessable. However, review costs will not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section. Review fees will be charged at the same rates as those charged for a search under paragraph (a)(1) of this section.
(c) Duplication of records. The requester’s specified preference of form or format of disclosure will be honored if the record is readily reproducible in that format. Where photocopies are supplied, OMB will provide one copy per request at a cost of five cents per page. For copies prepared by computer, such as tapes or printouts, OMB will charge the actual cost, including operator time, of production of the tape or printout. For other methods of reproduction or duplication, OMB will charge the actual direct costs of producing the document(s).
(d) Other charges. OMB will recover the full costs of providing services such as those enumerated below when it elects to provide them:
(1) Certifying that records are true copies; or
(2) Sending records by special methods, such as express mail.
(e) Remittances. Remittances shall be in the form of either a personal check, a bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made payable to the order of the Treasury of the United States and mailed to the FOIA Officer at the address found in § 1303.10(b).
(f) Receipts and refunds. A receipt for fees paid will be provided upon request. Refund of fees paid for services actually rendered will not be made.
(g) First 100 pages and two hours of search time. With the exception of requesters seeking documents for a commercial use, OMB will provide the first 100 pages of duplication (or the cost equivalent for other media) and the first two hours of search time without charge.
(h) Restrictions on assessing fees. If OMB fails to comply with the FOIA’s time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in § 1303.90(g) through (i), may not charge duplication fees, except as described in the following circumstances:
(1) If OMB has determined that unusual circumstances, as defined by the FOIA, apply, and OMB provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit will be excused for an additional 10 days.
(2) If OMB has determined that unusual circumstances, as defined by the FOIA, apply, and more than 5,000 pages are necessary to respond to the request, OMB may charge search fees, or, in the case of requesters described in § 1303.90(g) through (i), may charge duplication fees, if OMB has provided timely written notice to the requester in accordance with the FOIA and OMB has discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii).
(3) If a court determines that exceptional circumstances exist, as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.
(i) No Fees under $25. No fee will be charged when the total fee, after deducting the 100 free pages (or its cost equivalent) and the first two hours of search, is equal to or less than $25. If OMB estimates that the charges are likely to exceed $25, it will notify the requester of the estimated amount of fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel to meet the requester’s needs at a lower cost.
§ 1303.92 Fees to be charged – categories of requesters.
There are four categories of FOIA requesters: Commercial use requesters; educational and non-commercial scientific institutions; representatives of the news media; and all other requesters. The specific levels of fees for each of these categories are:
(a) Commercial use requesters. When OMB receives a request for documents for commercial use, it will assess charges that recover the full direct costs of searching for, reviewing for release, and duplicating the record sought. Commercial use requesters are not entitled to two hours of free search time nor 100 free pages of reproduction of documents. OMB may recover the cost of searching for and reviewing records even if there is ultimately no disclosure of records (see § 1303.93(b)).
(b) Educational and non-commercial scientific institution requesters. OMB will provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must meet the criteria in § 1303.90(g) or (h). OMB may seek evidence from the requester that the request is in furtherance of scholarly research and will advise requesters of their placement in this category.
(c) Requesters who are representatives of the news media. OMB will provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must meet the criteria in § 1303.90(i) and (j) and not make the request for commercial use. A request for records supporting the news dissemination function of the requester is not a commercial use for this category.
(d) All other requesters. OMB will charge requesters who do not fit into any of the categories above fees that recover the full reasonable direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first two hours of search time will be furnished without charge. Moreover, requests for records about the requesters filed in OMB’s systems of records will continue to be treated under the fee provisions of the Privacy Act of 1974, which permit fees only for reproduction.
§ 1303.93 Miscellaneous fee provisions.
(a) Charging interest – notice and rate. OMB may begin assessing interest charges on an unpaid bill starting on the 31st day after OMB sends the bill. If OMB receives the fee within the thirty-day grace period, interest will not accrue on the paid portion of the bill, even if the payment is unprocessed. Interest will be at the rate prescribed in section 3717 of title 31 of the United States Code and will accrue from the date of the billing.
(b) Charges for unsuccessful search. OMB may properly charge for time spent searching even if it does not locate any responsive records or if OMB determines that the records are entirely exempt from disclosure.
(c) Aggregating requests. When OMB reasonably believes that a requester, or a group of requestors acting in concert, is attempting to divide a single request into a series of requests for the purpose of avoiding fees, OMB may aggregate those requests and charge fees accordingly. OMB may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, OMB will aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters shall not be aggregated.
(d) Advance payments. (1) OMB will not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request, unless OMB estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250 or the requester has previously failed to make payments due within 30 days of billing.
(2) In cases in which OMB requires advance payment, the request will not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of OMB’s fee determination, the request will be closed.
(e) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). OMB will comply with applicable provisions of the Debt Collection Act, including disclosure to consumer reporting agencies and use of collection agencies, where appropriate, to encourage repayment.
§ 1303.94 Waiver or reduction of charges.
(a) How to apply for a fee waiver. Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.
(b) Factors for approving fee waivers. OMB will furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the following factors are satisfied:
(1) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated.
(2) Disclosure of the requested information is likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when both of the following criteria are met:
(i) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public’s understanding.
(ii) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester’s expertise in the subject area as well as the requester’s ability and intention to effectively convey information to the public must be considered. OMB will presume that a representative of the news media will satisfy this consideration.
(3) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, OMB will consider the following criteria:
(i) OMB will identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration.
(ii) If there is an identified commercial interest, OMB must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (b)(1) and (2) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. OMB ordinarily will presume that when a news media requester has satisfied the requirements of paragraphs (b)(1) and (2) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.
(c) Timing of requests for fee waivers. Requests for a waiver or reduction of fees should be made when the request is first submitted to OMB and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester shall be required to pay any costs incurred up to the date the fee waiver request was received.
PART 1304 – POST EMPLOYMENT CONFLICT OF INTEREST
§ 1304.4601 Purpose.
(a) This section sets forth OMB’s policy and procedures under the Ethics in Government Act of 1978, 18 U.S.C. 207, and the Office of Personnel Management’s implementing regulations, 5 CFR part 737, for determining violations of restrictions on post-employment activities and for exercising OMB’s administrative enforcement authority.
(b) These regulations bar certain acts by former Government employees which may reasonably give the appearance of making unfair use of prior Government employment and affiliations. OMB acts on the premise that it has the primary responsibility for the enforcement of restrictions on post-employment activities and that criminal enforcement by the Department of Justice should be undertaken only in cases involving aggravated circumstances.
(c) These regulations do not incorporate possible additional restrictions contained in a professional code of conduct to which an employee may also be subject.
(d) Any person who holds a Government position after June 30, 1979, is subject to the restrictions under this section; except that the new provisions applicable to Senior employees designated by the Director of the Office of Government Ethics are effective February 28, 1980.
§ 1304.4604 Definitions.
(a) Government Employee includes any officer or employee of the Executive Branch, those appointed or detailed under 5 U.S.C. 3374, and Special Government Employees. It does not include an individual performing services for the United States as an independent contractor under a personal service contract.
(b) Former Government Employee means one who was, and no longer is, a Government employee.
(c) Special Government Employee means an officer or employee of an agency who is retained, designated, appointed, or employed to perform temporary duties on a full-time or intermittent basis for not more than 130 days during any period of 365 consecutive days. This applies whether the Special Government Employee is compensated or not.
(d) Senior Employee means an employee or officer as designated in the statute or by the Director of the Office of Government Ethics. The Director of the Office of Government Ethics has designated civilians who have significant decision-making or supervisory responsibility and are paid at or equivalent to GS-17 or above as Senior Employees. Civilians paid at the Executive level are automatically designated by statute as Senior Employees. (A list of Senior Employee positions is found at 5 CFR 737.33.)
§ 1304.4605 Post-employment restrictions.
(a) General Restrictions Applicable to All Former Government Employees:
(1) Permanent Bar. A former Government employee is restricted from acting as a representative before an agency as to a particular matter involving a specific party if the employee participated personally and substantially in that matter as a Government employee. The government employee is also restricted from making any oral or written communication to an agency with the intent to influence on behalf of another person as to a particular matter involving a specific party if the former Government employee participated personally and substantially in that matter as a Government employee.
(2) Two-Year Bar. (i) A former Government employee is restricted for two years from acting as a representative before an agency as to a particular matter involving a specific party if the employee had official responsibility for that matter. The former Government employee is also restricted for two years from making any oral or written communication to any agency with the intent to influence on behalf of another person as to a particular matter involving a specific party if the employee had official responsibility for that matter.
(ii) In order to be a matter for which the former Government employee had official responsibility, the matter must actually have been pending under the employee’s responsibility within the period of one year prior to the termination of such responsibility.
(iii) The statutory two-year restriction period is measured from the date when the employee’s responsibility for a particular matter ends, not from the termination of Government service.
(b) Restrictions Applicable Only to Former Senior Employees:
(1) Two-Year Bar on Assisting in Representing. (i) A former Senior Employee is restricted for two years from assisting in representing another person by personal appearance before an agency as to a particular matter involving a specific party if the former Senior Employee participated personally and substantially in that matter as a Government employee.
(ii) The statutory two-year period is measured from the date of termination of employment in the position that was held by the Senior Employee when he participated personally and substantially in the matter involved.
(2) One-Year Bar on Attempts to Influence Former Agency. (i) A former Senior Employee is restricted for one year from any transactions with the former agency on a particular matter with the intent to influence the agency, regardless of the former Senior Employee’s prior involvement in that matter.
(ii) This restriction is aimed at the possible use of personal influence based on past Government affiliations in order to facilitate transaction of business. Therefore, it includes matters which first arise after a Senior Employee leaves Government service.
(iii) The restriction applies whether the former Senior Employee is representing another or representing himself, either by appearance before an agency or through communication with that agency.
(c) OFPP is a separate agency for purposes of the foregoing restrictions on post-employment activities.
§ 1304.4606 Exemptions.
(a) General. (1) Communications made solely to furnish scientific or technological information are exempt from these prohibitions.
(2) A former Government employee may be exempted from the restrictions on post-employment practices if the Deputy Director of OMB, in consultation with the Director of the Office of Government Ethics, executes a certification that is published in the
(b) Specific. The one-year bar shall not apply to a former Senior Employee’s representation on new matters if the former Senior Employee is:
(1) An elected State or local government official, who is acting on behalf of such government; or
(2) Regularly employed by or acting on behalf of an agency or instrumentality of a State or local government; an accredited, degree-granting institution of higher education; or a non-profit hospital or medical research organization.
§ 1304.4607 Advice to former Government employees.
The Office of General Counsel, OMB, has the responsibility for providing assistance promptly to former Government employees who seek advice on specific problems.
§ 1304.4608 Administrative Enforcement Procedures (18 U.S.C. 207(j); 5 CFR 737.27).
(a) Whenever an allegation is made that a former Government employee has violated 18 U.S.C. 207(a), (b) or (c) or any of the regulations promulgated thereunder by the Office of Government Ethics or by OMB, the allegation and any supporting evidence shall be transmitted through the Office of General Counsel to the Deputy Director, OMB.
(b) Allegations and evidence shall be safeguarded so as to protect the privacy of former employees prior to a determination of sufficient cause to initiate an administrative disciplinary proceeding.
(c) If review by the Office of General Counsel, OMB, shows that the information concerning a possible violation does not appear to be frivolous, the Deputy Director, OMB, shall expeditiously provide all relevant evidence, any appropriate comments, and copies of applicable agency regulations to the director, Office of Government Ethics, and to the Criminal Division, Department of Justice. Unless the Department of Justice informs OMB that it does not intend to initiate criminal prosecution, OMB shall coordinate any investigation or administrative action with the Department of Justice in order to avoid prejudicing criminal proceedings.
(d) After appropriate review and recommendation by the Office of General Counsel, if the Deputy Director, OMB, determines that there is reasonable cause to believe that there has been a violation, the Deputy Director may direct the Office of General Counsel to initiate an administrative disciplinary proceeding and may designate an individual to represent OMB in the proceeding.
(e) Notice. The Office of General Counsel shall provide the former Government employee with adequate notice of its intention to institute a proceeding and with an opportunity for a hearing. The notice must include a statement of allegations, and the basis thereof, in sufficient detail to enable the former Government employee to prepare an adequate defense; notification of the right to a hearing; and an explanation of the method by which a hearing may be requested.
(f) Hearing. A hearing may be obtained by submitting a written request to the Office of General Counsel.
(g) Examiner. The presiding official at the proceedings shall be the hearing examiner, who is delegated authority by the Director, OMB, to make an initial decision. The hearing examiner shall be an attorney in the Office of General Counsel designated by the General Counsel. The hearing examiner shall be impartial and shall not have participated in any manner in the decision to initiate the proceedings.
(h) Time, date and place. The hearing shall be conducted at a reasonable time, date, and place. The hearing examiner shall give due regard in setting the hearing date to the former Government employee’s need for adequate time to properly prepare a defense and for an expeditious resolution of allegations that may be damaging to his reputation.
(i) Hearing rights. The hearing shall include, as a minimum, the right to represent oneself or to be represented by counsel; the right to introduce and examine witnesses and to submit physical evidence; the right to confront and cross-examine adverse witnesses; the right to present oral argument; and, on request, the right to have a transcript or recording of the proceedings.
(j) Burden of proof. OMB has the burden of proof and must establish substantial evidence of a violation.
(k) Decision. The hearing examiner shall make a decision based exclusively on matters of record in the proceedings. All findings of fact and conclusions of law relevant to the matters at issue shall be set forth in the decision.
(l) Appeal within OMB. Within 30 days of the date of the hearing examiner’s decision, either party may appeal the decision to the Director. The Director shall make a decision on the appeal based solely on the record of the proceedings or on those portions of the record agreed to by the parties to limit the issues. If the Director modifies or reverses the hearing examiner’s decision, he shall specify the findings of fact and conclusions of law that are different from those of the hearing examiner.
(m) Administrative sanctions. Administrative sanctions may be taken if the former Government employee fails to request a hearing after receipt of adequate notice or if a final administrative determination of a violation of 18 U.S.C. 207 (a), (b) or (c) or regulations promulgated thereunder has been made. The Director may prohibit the former Government employee from appearance or communication with OMB on behalf of another for a period not to exceed five years (5 CFR 737.27(a)(9)(i)) or take other appropriate disciplinary action (5 CFR 737.27(a)(9)(ii)).
(n) Judicial review. Any person found by an OMB administrative decision to have participated in a violation of 18 U.S.C. 207 (a), (b) or (c) or regulations promulgated thereunder may seek judicial review of the administrative decision.
PART 1305 – RELEASE OF OFFICIAL INFORMATION, AND TESTIMONY BY OMB PERSONNEL AS WITNESSES, IN LITIGATION
§ 1305.1 Purpose and scope.
This part contains the regulations of the Office of Management and Budget (OMB) concerning procedures to be followed when, in litigation (including administrative proceedings), a subpoena, order or other demand (hereinafter in this part referred to as a “demand”) of a court or other authority is issued for the production or disclosure of:
(a) Any material contained in the files of OMB;
(b) Any information relating to materials contained in the files of OMB; or
(c) Any information or material acquired by any person while such person was an employee of OMB as a part of the performance of the person’s official duties or because of the person’s official status.
§ 1305.2 Production prohibited unless approved.
No employee or former employee of OMB shall, in response to a demand of a court or other authority, produce any material contained in the files of OMB, disclose any information relating to materials contained in the files of OMB, or disclose any information or produce any material acquired as part of the performance of the person’s official duties, or because of the person’s official status, without the prior approval of the General Counsel.
§ 1305.3 Procedures in the event of a demand for disclosure.
(a) Whenever a demand is made upon an employee or former employee of OMB for the production of material or the disclosure of information described in § 1305.2, he shall immediately notify the General Counsel. If possible, the General Counsel shall be notified before the employee or former employee concerned replies to or appears before the court or other authority.
(b) If information or material is sought by a demand in any case or matter in which OMB is not a party, an affidavit (or, if that is not feasible, a statement by the party seeking the information or material, or by his attorney) setting forth a summary of the information or material sought and its relevance to the proceeding, must be submitted before a decision is made as to whether materials will be produced or permission to testify or otherwise provide information will be granted. Any authorization for testimony by a present or former employee of OMB shall be limited to the scope of the demand as summarized in such statement.
(c) If response to a demand is required before instructions from the General Counsel are received, an attorney designated for that purpose by OMB shall appear, and shall furnish the court or other authority with a copy of the regulations contained in this part and inform the court or other authority that the demand has been or is being, as the case may be, referred for prompt consideration by the General Counsel. The court or other authority shall be requested respectfully to stay the demand pending receipt of the requested instructions from the General Counsel.
§ 1305.4 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 1305.3(c) pending receipt of instructions from the General Counsel, or if the court or other authority rules that the demand must be complied with irrespective of the instructions from the General Counsel not to produce the material or disclose the information sought, the employee or former employee upon whom the demand has been made shall respectfully decline to comply with the demand (United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)).
§ 1305.5 No private right of action.
This part is intended only to provide guidance for the internal operations of OMB, and is not intended to, and does not, and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party against the United States.
SUBCHAPTER B – OMB DIRECTIVES
PART 1310 – OMB CIRCULARS
§ 1310.1 Policy guidelines.
In carrying out its responsibilities, the Office of Management and Budget issues policy guidelines to Federal agencies to promote efficiency and uniformity in Government activities. These guidelines are normally in the form of circulars.
§ 1310.3 Availability of circulars.
Copies of individual circulars are available at OMB’s Internet home page; you may access them at http://www.whitehouse.gov/WH/EOP/omb. Copies are also available from the EOP Publications Office, 725 17th Street NW., Room 2200, Washington, DC 20503; (202) 395-7332. Selected circulars are also available through fax-on-demand, by calling (202) 395-9068.
§ 1310.5 List of current circulars.
The following list includes all circulars in effect as of December 1, 1998.
PART 1312 – CLASSIFICATION, DOWNGRADING, DECLASSIFICATION AND SAFEGUARDING OF NATIONAL SECURITY INFORMATION
Subpart A – Classification and Declassification of National Security Information
This subpart sets forth the procedures for the classification and declassification of national security information in the possession of the Office of Management and Budget. It is issued under the authority of Executive Order 12958, (60 FR 19825, 3 CFR, 1995 Comp., P.333), as implemented by Information Security Oversight Office Directive No. 1 (32 CFR part 2001), and is applicable to all OMB employees.
§ 1312.2 Responsibilities.
The effectiveness of the classification and declassification program in OMB depends entirely on the amount of attention paid to it by supervisors and their staffs in those offices and divisions that possess or produce classified material. Officials who originate classified information are responsible for proper assignment of a classification to that material and for the decision as to its declassification. Officials who produce documents containing classified information must determine the source of the classification for that information and must ensure that the proper identity of that source is shown on the document. Custodians of classified material are responsible for its safekeeping and for ensuring that such material is adequately marked as to current classification. Custodians are also responsible for the control of and accounting for all classified material within their area of jurisdiction as prescribed in OMB Manual Section 1030.
(a) EOP Security Officer. In cooperation with the Associate Director (or Assistant Director) for Administration, the EOP Security Officer supervises the administration of this section and develops programs to assist in the compliance with the Order. Specifically, he:
(1) Promotes the correct understanding of this section by all employees by providing annual security refresher briefings and ensures that new employees attend initial briefings about overall security procedures and policies.
(2) Issues and keeps current such classification guides and guidelines for review for declassification as are required by the Order.
(3) Conducts periodic reviews of classified documents produced and provides assistance and guidance where necessary.
(4) Maintains and publishes a current listing of all officials who have been designated in writing to have Top Secret, Secret, and Confidential original classification authority.
(b) Heads of divisions or offices. The head of each division or major organizational unit is responsible for the administration of this section within his or her area. Appropriate internal guidance should be issued to cover special or unusual conditions within an office.
§ 1312.3 Classification requirements.
United States citizens must be kept informed about the activities of their Government. However, in the interest of national security, certain official information must be subject to constraints on its dissemination or release. This information is classified in order to provide that protection.
(a) Information shall be considered for classification if it concerns:
(1) Military plans, weapons systems, or operations;
(2) Foreign government information;
(3) Intelligence activities (including special activities), intelligence sources or methods, or cryptology;
(4) Foreign relations or foreign activities of the United States, including confidential sources;
(5) Scientific, technological, or economic matters relating to the national security;
(6) United States Government programs for safeguarding nuclear materials or facilities; or
(7) Vulnerabilities or capabilities of systems, installations, projects or plans relating to the national security.
(b) When information is determined to meet one or more of the criteria in paragraph (a) of this section, it shall be classified by an original classification authority when he/she determines that its unauthorized disclosure reasonably could be expected to cause at least identifiable damage to the national security.
(c) Unauthorized disclosure of foreign government information, including the identity of a confidential foreign source of intelligence sources or methods, is presumed to cause damage to the national security.
(d) Information classified in accordance with this section shall not be declassified automatically as a result of any unofficial or inadvertent or unauthorized disclosure in the United States or abroad of identical or similar information.
§ 1312.4 Classified designations.
(a) Except as provided by the Atomic Energy Act of 1954, as amended, (42 U.S.C. 2011) or the National Security Act of 1947, as amended, (50 U.S.C. 401) Executive Order 12958 provides the only basis for classifying information. Information which meets the test for classification may be classified in one of the following three designations:
(1) Top Secret. This classification shall be applied only to information the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the original classification authority is able to identify or describe.
(2) Secret. This classification shall be applied only to information the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the original classification authority is able to identify or describe.
(3) Confidential. This classification shall be applied only to information the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the original classification authority is able to identify or describe.
(b) If there is significant doubt about the need to classify information, it shall not be classified. If there is significant doubt about the appropriate level of classification, it shall be classified at the lower level.
§ 1312.5 Authority to classify.
(a) The authority to originally classify information or material under this part shall be limited to those officials concerned with matters of national security. The officials listed in this section are granted authority by the Director, OMB, to assign original classifications as indicated to information or material that is originated by OMB staff and relating to the national security of the United States:
(1) Top Secret and below:
(i) Deputy Director.
(ii) Deputy Director for Management.
(iii) Associate Director for National Security and International Affairs.
(iv) Associate Director for Natural Resources, Energy and Science.
(2) Secret and below:
(i) Deputy Associate Director for National Security.
(ii) Deputy Associate Director for International Affairs.
(iii) Deputy Associate Director for Energy and Science.
(b) Classification authority is not delegated to persons who only reproduce, extract, or summarize classified information, or who only apply classification markings derived from source material or from a classification guide.
§ 1312.6 Duration of classification.
(a)(1) When determining the duration of classification for information originally classified under Executive Order 12958, an original classification authority shall follow the following sequence:
(i) He/She shall attempt to determine a date or event that is less than 10 years from the date of original classification, and which coincides with the lapse of the information’s national security sensitivity, and shall assign such date or event as the declassification instruction;
(ii) If unable to determine a date or event of less than 10 years, he/she shall ordinarily assign a declassification date that is 10 years from the date of the original classification decision;
(iii) He/She may extend the duration of classification or reclassify specific information for a period not to exceed 10 additional years if such action is consistent with the exemptions as outlined in Section 1.6(d) of the Executive Order. This provision does not apply to information contained in records that are more than 25 years old and have been determined to have permanent historical value under Title 44 United States Code.
(iv) He/She may exempt from declassification within 10 years specific information, which is consistent with the exemptions as outlined in Section 1.6 (d) of the Executive Order.
(2) Extending Duration of Classification. Extensions of classification are not automatic. If an original classification authority with jurisdiction over the information does not extend the date or event for declassification, the information is automatically declassified upon the occurrence of the date or event. If an original classification authority has assigned a date or event for declassification that is 10 years or less from the date of classification, an original classification authority with jurisdiction over the information may extend the classification duration of such information for additional periods not to exceed 10 years at a time. Records determined to be of historical value may not exceed the duration of 25 years.
(b) When extending the duration of classification, the original classification authority must:
(1) Be an original classification authority with jurisdiction over the information.
(2) Ensure that the information continues to meet the standards for classification under the Executive Order.
(3) Make reasonable attempts to notify all known holders of the information. Information classified under prior orders marked with a specific date or event for declassification is automatically declassified upon that date or event. Information classified under prior orders marked with Originating Agency’s Determination Required (OADR) shall:
(i) Be declassified by a declassification authority as defined in Section 3.1 of the Executive Order.
(ii) Be re-marked by an authorized original classification authority with jurisdiction over the information to establish a duration of classification consistent with the Executive Order.
(iii) Be subject to Section 3.4 of the Executive Order if the records are determined to be of historical value and are to remain classified for 25 years from the date of its original classification.
§ 1312.7 Derivative classification.
A derivative classification means that the information is in substance the same information that is currently classified, usually by another agency or classification authority. The application of derivative classification markings is the responsibility of the person who incorporates, restates, paraphrases, or generates in new form information that is already classified, or one who applies such classification markings in accordance with instructions from an authorized classifier or classification guide. Extreme care must be taken to continue classification and declassification markings when such information is incorporated into OMB documents. The duplication or reproduction of existing classified information is not derivative classification. Persons who use derivative classification need not possess original classification authority.
§ 1312.8 Standard identification and markings.
(a) Original classification. At the time classified material is produced, the classifier shall apply the following markings on the face of each originally classified document, including electronic media:
(1) Classification authority. The name/personal identifier, and position title of the original classifier shall appear on the “Classified By” line.
(2) Agency and office of origin. If not otherwise evident, the agency and office of origin shall be identified and placed below the name on the “Classified By” line.
(3) Reasons for classification. Identify the reason(s) to classify. The classifier shall include, at a minimum, a brief reference to the pertinent classification category(ies), or the number 1.5 plus the letter(s) that corresponds to that classification category in Section 1.5 of the Executive Order.
(4) Declassification instructions. These instructions shall indicate the following:
(i) The duration of the original classification decision shall be placed on the “Declassify On” line.
(ii) The date or event for declassification that corresponds to the lapse of the information’s national security sensitivity, which may not exceed 10 years from the date of the original decision.
(iii) When a specific date or event within 10 years cannot be established, the classifier will apply the date that is 10 years from the date of the original decision.
(iv) The exemption category from declassification. Upon determination that the information must remain classified beyond 10 years, the classifier will apply the letter “X” plus a brief recitation of the exemption category(ies), or the letter “X” plus the number that corresponds to the exemption category(ies) in Section 1.6(d) of the Executive Order.
(v) An original classification authority may extend the duration of classification for successive periods not to exceed 10 years at a time. The “Declassify On” line shall be revised to include the new declassification instructions and shall include the identity of the person authorizing the extension and the date of the action.
(vi) Information exempted from automatic declassification at 25 years should on the “Declassify On” line be revised to include the symbol “25X” plus a brief reference to the pertinent exemption categories/numbers of the Executive Order.
(5) The overall classification of the document is the highest level of information in the document and will be conspicuously placed stamped at the top and bottom of the outside front and back cover, on the title page, and on the first page.
(6) The highest classification of individual pages will be stamped at the top and bottom of each page, to include “unclassified” when it is applicable.
(7) The classification of individual portions of the document, (ordinarily a paragraph, but including subjects, titles, graphics) shall be marked by using the abbreviations (TS), (S), (C), or (U), will be typed or marked at the beginning or end of each paragraph or section of the document. If all portions of the document are classified at the same level, this may be indicated by a statement to that effect.
(b) Derivative classification. Information classified derivatively on the basis of source documents shall carry the following markings on those documents:
(1) The derivative classifier shall concisely identify the source document(s) or the classification guide on the “Derived From” line, including the agency and where available the office of origin and the date of the source or guide. When a document is classified derivatively on the basis of more than one source document or classification guide, the “Derived From” line shall appear as “Derived From: Multiple Sources”.
(2) The derivative classifier shall maintain the identification of each source with the file or record copy of the derivatively classified document. Where practicable the copies of the document should also have this list attached.
(3) A document derivatively classified on the basis of a source document that is itself marked “Multiple Sources” shall cite the source document on its “Derived From” line rather than the term “Multiple Sources”.
(4) The reason for the original classification decision, as reflected in the source document, is not required to be transferred in a derivative classification action.
(5) Declassification instructions shall carry forward the instructions on the “Declassify On” line from the source document to the derivation document or the duration instruction from the classification guide. Where there are multiple sources, the longest duration of any of its sources shall be used.
(6) When a source document or classification guide contains the declassification instruction “Originating Agency’s Determination Required” (OADR) the derivative document shall carry forward the fact that the source document(s) were so marked and the date of origin of the most recent source document (s).
(7) The derivatively classified document shall be conspicuously marked with the highest level of classification of information.
(8) Each portion of a derivatively classified document shall be marked in accordance with its source.
(9) Each office shall, consistent with Section 3.8 of the Executive Order, establish and maintain a database of information that has been declassified.
(c) Additional Requirements. (1) Markings other than “Top Secret”, “Secret”, and “Confidential” shall not be used to identify classified national security information.
(2) Transmittal documents will be stamped to indicate the highest classification of the information transmitted, and shall indicate conspicuously on its face the following or something similar “Unclassified When classified Enclosure Removed” to indicate the classification of the transmittal document standing alone.
(3) The classification data for material other than documents will be affixed by tagging, stamping, recording, or other means to insure that recipients are aware of the requirements for the protection of the material.
(4) Documents containing foreign government information shall include the markings “This Document Contains (country of origin) Information”. If the identity of the specific government must be concealed, the document shall be marked” This Document Contains Foreign Government Information,” and pertinent portions marked “FGI” together with the classification level, e.g., “(FGI-C)”. In such cases, separate document identifying the government shall be maintained in order to facilitate future declassification actions.
(5) Documents, regardless of medium, which are expected to be revised prior to the preparation of a finished product – working papers – shall be dated when created, marked with highest classification, protected at that level, and destroyed when no longer needed. When any of the following conditions exist, the working papers shall be controlled and marked in the same manner as prescribed for a finished classified document:
(i) Released by the originator outside the originating activity;
(ii) Retained more than 180 days from the date of origin;
(iii) Filed permanently.
(6) Information contained in unmarked records, or Presidential or related materials, and which pertain to the national defense or foreign relations of the U.S. and has been maintained and protected as classified information under prior orders shall continue to be treated as classified information under the Executive Order and is subject to its provisions regarding declassification.
§ 1312.9 Downgrading and declassification.
Classified information originated by OMB offices will be downgraded or declassified as soon as it no longer qualifies for continued protection under the provisions of the classification guides. Authority to downgrade or declassify OMB-originated information is granted to those authorized to classify (See § 1312.5). Additionally, the Associate Director (or Assistant Director) for Administration is authorized to exercise downgrading and declassification actions up to and including the Top Secret level.
(a) Transferred material. Information which was originated by an agency that no longer exists, or that was received by OMB in conjunction with a transfer of functions, is deemed to be OMB-originated material. Information which has been transferred to another agency for storage purposes remains the responsibility of OMB.
(b) Periodic review of classified material. Each office possessing classified material will review that material on an annual basis or in conjunction with the transfer of files to non-current record storage and take action to downgrade or declassify all material no longer qualifying for continued protection at that level. All material transferred to non-current record storage must be properly marked with correct downgrade and declassification instructions.
§ 1312.10 Systematic review guidelines.
The EOP Security Officer will prepare and keep current such guidelines as are required by Executive Order 12958 for the downgrading and declassification of OMB material that is in the custody of the Archivist of the United States.
§ 1312.11 Challenges to classifications.
OMB employees are encouraged to familiarize themselves with the provisions of Executive Order 12958 and with OMB Manual Sections 1010, 1020, and 1030. Employees are also encouraged to question or to challenge those classifications they believe to be improper, unnecessary, or for an inappropriate time. Such questions or challenges may be addressed to the originator of the classification, unless the challenger desires to remain anonymous, in which case the question may be directed to the EOP Security Officer.
§ 1312.12 Security Program Review Committee.
The Associate Director (or Assistant Director) for Administration will chair the OMB Security Program Review Committee, which will act on suggestions and complaints about the OMB security program.
Subpart B – Control and Accountability of Classified Information
This subpart sets forth procedures for the receipt, storage, accountability, and transmission of classified information at the Office of Management and Budget. It is issued under the authority of Executive Order 12958, (60 FR 19825, 3 CFR, 1995 Comp., P.333), as implemented by Information Security Oversight Office Directive No 1 (32 CFR part 2001), and is applicable to all OMB employees.
§ 1312.22 Responsibilities.
The effective direction by supervisors and the alert performance of duty by employees will do much to ensure the adequate security of classified information in the possession of OMB offices. Each employee has a responsibility to protect and account for all classified information that he/she knows of within his/her area of responsibility. Such information will be made available only to those persons who have an official need to know and who have been granted the appropriate security clearance. Particular care must be taken not to discuss classified information over unprotected communications circuits (to include intercom and closed-circuit TV), at non-official functions, or at any time that it might be revealed to unauthorized persons. Classified information may only be entered into computer systems meeting the appropriate security criteria.
(a) EOP Security Officer. In cooperation with the Associate Director (or Assistant Director) for Administration, the EOP Security Officer supervises the administration of this section. Specifically, he/she:
(1) Promotes the correct understanding of this section and insures that initial and annual briefings about security procedures are given to all new employees.
(2) Provides for periodic inspections of office areas and reviews of produced documents to ensure full compliance with OMB regulations and procedures.
(3) Takes prompt action to investigate alleged violations of security, and recommends appropriate administrative action with respect to violators.
(4) Supervises the annual inventories of Top Secret material.
(5) Ensures that containers used to store classified material meet the appropriate security standards and that combinations to security containers are changed as required.
(b) Heads of Offices. The head of each division or office is responsible for the administration of this section in his/her area. These responsibilities include:
(1) The appointment of accountability control clerks as prescribed in § 1312.26.
(2) The maintenance of the prescribed control and accountability records for classified information within the office.
(3) Establishing internal procedures to ensure that classified material is properly safeguarded at all times.
§ 1312.23 Access to classified information.
Classified information may be made available to a person only when the possessor of the information establishes that the person has a valid “need to know” and the access is essential to the accomplishment of official government duties. The proposed recipient is eligible to receive classified information only after he/she has been granted a security clearance by the EOP Security Officer. Cover sheets will be used to protect classified documents from inadvertent disclosure while in use. An SF-703 will be used for Top Secret material; an SF-704 for Secret material, and an SF-705 for Confidential material. The cover sheet should be removed prior to placing the document in the files.
§ 1312.24 Access by historical researchers and former Presidential appointees.
(a) The requirements of Section 4.2(a)(3) of Executive Order 12958 may be waived for persons who are engaged in historical research projects, or who previously have occupied policy-making positions to which they were appointed by the President. Waivers may be granted only if the Associate Director (or Assistant Director) for Administration, in cooperation with the EOP Security Officer:
(1) Determines in writing that access is consistent with the interest of national security;
(2) Takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with the order; and
(3) Limits the access granted to former Presidential appointees to items that the person originated, reviewed, signed, or received while serving as a Presidential appointee.
(b) In the instances described in paragraph (a) of this section, the Associate Director (or Assistant Director) for Administration, in cooperation with the EOP Security Officer, will make a determination as to the trustworthiness of the requestor and will obtain written agreement from the requestor to safeguard the information to which access is given. He/She will also obtain written consent to the review by OMB of notes and manuscripts for the purpose of determining that no classified information is contained therein. Upon the completion of these steps, the material to be researched will be reviewed by the division/office of primary interest to ensure that access is granted only to material over which OMB has classification jurisdiction.
§ 1312.25 Storage.
All classified material in the possession of OMB will be stored in a GSA-approved container or in vault-type rooms approved for Top Secret storage. Under the direction of the EOP Security Officer, combinations to safes used in the storage of classified material will be changed when the equipment is placed in use, whenever a person knowing the combination no longer requires access to it, whenever the combination has been subjected to possible compromise, whenever the equipment is taken out of service, or at least once a year. Knowledge of combinations will be limited to the minimum number of persons necessary, and records of combinations will be assigned a classification no lower than the highest level of classified information stored in the equipment concerned. An SF-700, Security Container Information, will be used in recording safe combinations. Standard Form-702, Security Container check sheet, will be posted to each safe and will be used to record opening, closing, and checking the container whenever it is used.
§ 1312.26 Control of secret and confidential material.
Classified material will be accounted for by the office having custody of the material. OMB Form 87, Classified Document Control, will be used to establish accountability controls on all Secret material received or produced within OMB offices. No accountability controls are prescribed for Confidential material, but offices desiring to control and account for such material should use the procedures applicable to Secret material. Information classified by another agency shall not be disclosed without that agency’s authorization.
(a) Accountability Control Clerks. Each division or office head will appoint one person as the Accountability Control Clerk (ACC). The ACC will be the focal point for the receipt, routing, accountability, dispatch, and declassification downgrading or destruction of all classified material in the possession of the office.
(b) OMB Form 87. One copy of OMB Form 87 will be attached to the document, and one copy retained in the accountability control file for each active document within the area of responsibility of the ACC. Downgrading or destruction actions, or other actions removing the document from the responsibility of the ACC will be recorded on the OMB Form 87, and the form filed in an inactive file. Inactive control forms will be cut off annually, held for two additional years, then destroyed.
(c) Working papers and drafts. Working papers and drafts of classified documents will be protected according to their security classification, but will not be subject to accountability control unless they are forwarded outside of OMB.
(d) Typewriter ribbons. Typewriter ribbons, cassettes, and other devices used in the production of classified material will be removed from the machine after each use and protected as classified material not subject to controls. Destruction of such materials will be as prescribed in § 1312.29.
(e) Reproduction. Classified material will be reproduced only as required unless prohibited by the originator for the conduct of business and reproduced copies are subject to the same controls as are the original documents. Top Secret material will be reproduced only with the written permission of the originating agency.
§ 1312.27 Top secret control.
The EOP Security Officer serves as the Top Secret Control Officer (TSCO) for OMB. He will be assisted by the Alternate TSCOs in each division/office Holding Top Secret material. The ATSCOs will be responsible for the accountability and custodianship of Top Secret material within their divisions/offices. The provisions of this section do not apply to special intelligence material, which will be processed as prescribed by the controlling agency.
(a) Procedures. All Top Secret material produced or received in OMB will be taken to the appropriate ATSCO for receipting, establishment of custodianship, issuance to the appropriate action officer, and, as appropriate, obtaining a receipt. Top Secret material in the custody of the TSCO or ATSCO will normally be segregated from other classified material and will be stored in a safe under his or her control. Such material will be returned to the appropriate ATSCO by action officers as soon as action is completed. OMB Form 87 will be used to establish custody, record distribution, routing, receipting and destruction of Top Secret material. Top Secret Access Record and Cover Sheet (Standard Form 703) will be attached to each Top Secret document while it is in the possession of OMB.
(b) Inventory. The Associate Director (or Assistant Director) for Administration will notify each appropriate OMB office to conduct an inventory of its Top Secret material by May 1 each year. The head of each office will notify the EOP Security Officer when the inventory has been satisfactorily completed. Each Top Secret item will be examined to determine whether it can be downgraded or declassified, and the inventory will be adjusted accordingly. Discrepancies in the inventory, indicating loss or possible compromise, will be thoroughly investigated by the EOP Security Officer or by the Federal Bureau of Investigation, as appropriate. Each ATSCO will retain his/her division’s inventory in accordance with the security procedures set forth in this regulation.
§ 1312.28 Transmission of classified material.
Prior to the transmission of classified material to offices outside OMB, such material will be enclosed in opaque inner and outer covers or envelopes. The inner cover will be sealed and marked with the classification, and the address of the sender and of the addressee. The receipt for the document, OMB Form 87, (not required for Confidential material) will be attached to or placed within the inner envelope to be signed by the recipient and returned to the sender. Receipts will identify the sender, the addressee, and the document, and will contain no classified information. The outer cover or envelope will be sealed and addressed with no identification of its contents.
(a) Transmittal of Top Secret material. The transmittal of Top Secret material shall be by personnel specifically designated by the EOP Security Officer, or by Department of State diplomatic pouch, by a messenger-courier system specifically created for that purpose. Alternatively, it shall be taken to the White House Situation Room for transmission over secure communications circuits.
(b) Transmittal of Secret material. The transmittal of Secret material shall be as follows:
(1) Within and between the fifty States, the District of Columbia, and Puerto Rico: Use one of the authorized means for Top Secret material, or transmit by U.S. Postal Service express or registered mail.
(2) Other Areas. Use the same means authorized for Top Secret, or transmit by U.S. registered mail through Military Postal Service facilities.
(c) Transmittal of Confidential material. As identified in paragraphs (a) and (b) of this section, or transmit by U.S. Postal Service Certified, first class, or express mail service within and between the fifty States, the District of Columbia, and Puerto Rico.
(d) Transmittal between OMB offices and within the EOP complex. Classified material will normally be hand carried within and between offices in the Executive Office of the President complex by cleared OMB employees. Documents so carried must be protected by the appropriate cover sheet or outer envelope. Top Secret material will always be hand carried in this manner. Secret and Confidential material may be transmitted between offices in the EOP complex by preparing the material as indicated above (double envelope) and forwarding it by special messenger service provided by the messenger center. The messenger shall be advised that the material is classified. Receipts shall be obtained if Top Secret or Secret material is being transmitted outside of OMB. Classified material will never be transmitted in the Standard Messenger Envelope (SF Form 65), or by the Mail Stop system.
§ 1312.29 Destruction.
The destruction of classified material will be accomplished under the direction of the TSCO or the appropriate ATSCO, who will assure that proper accountability records are kept. Classified official record material will be processed to the Information Systems and Technology, Records Management Office, Office of Administration, NEOB Room 5208, in accordance with OMB Manual Section 540. Classified nonrecord material will be destroyed as soon as it becomes excess to the needs of the office. The following destruction methods are authorized:
(a) Shredding. Using the equipment approved for that purpose within OMB offices. Shredders will not accommodate typewriter ribbons or cassettes. Shredding is the only authorized means of Destroying Top Secret material.
(b) Burn bag. Classified documents, cassettes, ribbons, and other materials at the Secret level or below, not suitable for shredding, may be destroyed by using burn bags, which can be obtained from the supply store. They will be disposed of as follows:
(1) OEOB. Unless on an approved list for pick-up of burn bags, all other burn bags should be delivered to Room 096, OEOB between 8:00 a.m. and 4:30 p.m. Burn bags are not to be left in hallways.
(2) NEOB. Hours for delivery of burn bag materials to the NEOB Loading Dock Shredder Room are Monday through Friday from 8:00 a.m. to 9:30 a.m.; 10:00 a.m. to 11:00 a.m.; 11:45 a.m. to 1:30 p.m. and 2:00 p.m. to 3:30 p.m. The phone number of the Shredder Room is 395-1593. In the event the Shredder Room is not manned, do not leave burn bags outside the Shredder Room as the security of that material may be compromised.
(3) Responsibility for the security of the burn bag remains with the OMB office until it is handed over to the authorized representative at the shredder room. Accountability records will be adjusted after the burn bags have been delivered. Destruction actions will be recorded on OMB Form 87 by the division TSCO or by the appropriate ATSCO at the time the destruction is accomplished or at the time the burn bag is delivered to the U.D. Officer.
(c) Technical guidance. Technical guidance concerning appropriate methods, equipment, and standards for destruction of electronic classified media, processing equipment components and the like, may be obtained by submitting all pertinent information to NSA/CSS Directorate for Information Systems Security, Ft. Meade, Maryland 20755. Specifications concerning appropriate equipment and standards for destruction of other storage media may be obtained from the General Services Administration.
§ 1312.30 Loss or possible compromise.
Any person who has knowledge of the loss or possible compromise of classified information shall immediately secure the material and then report the circumstances to the EOP Security Officer. The EOP Security Officer will immediately initiate an inquiry to determine the circumstances surrounding the loss or compromise for the purpose of taking corrective measures and/or instituting appropriate administrative, disciplinary, or legal action. The agency originating the information shall be notified of the loss or compromise so that the necessary damage assessment can be made.
§ 1312.31 Security violations.
(a) A security violation notice is issued by the United States Secret Service when an office/division fails to properly secure classified information. Upon discovery of an alleged security violation, the USSS implements their standard procedures which include the following actions:
(1) Preparation of a Record of Security Violation form;
(2) When a document is left on a desk or other unsecured area, the officer will remove the classified document(s) and deliver to the Uniformed Division’s Control Center; and
(3) Where the alleged violation involves an open safe, the officer will remove one file bearing the highest classification level, annotate it with his or her name, badge number, date and time, and return the document to the safe, which will then be secured. A description of the document will be identified in the Record of Security Violations and a copy of the violation will be left in the safe.
(b) Office of record. The EOP Security Office shall serve as the primary office of record for OMB security violations. Reports of violations will remain in the responsible individual’s security file until one year after the individual departs the Executive Office of the President, at which time all violation reports will be destroyed.
(c) Compliance. All Office of Management and Budget employees will comply with this section. Additionally, personnel on detail or temporary duty will comply with this section, however, their parent agencies will be provided with a copy of any security violation incurred during their period of service to OMB.
(d) Responsibilities for processing security violations – (1) EOP Security Officer. The EOP Security Officer shall provide OMB with assistance regarding Agency security violations. Upon receipt of a Record of Security Violation alleging a security violation, the EOP Security Officer shall:
(i) Prepare a memorandum to the immediate supervisor of the office/division responsible for the violation requesting that an inquiry be made into the incident. Attached to the memorandum will be a copy of the Record of Security Violation form. The receiving office/division will prepare a written report within five working days of its receipt of the Security Officer’s memorandum.
(ii) Provide any assistance needed for the inquiry conducted by the office/division involved in the alleged violation.
(iii) Upon receipt of the report of inquiry from the responsible office/division, the EOP Security Officer will:
(A) Consult with the OMB Associate Director (or Assistant Director) for Administration and the General Counsel;
(B) Determine if a damage assessment report is required. A damage assessment will be made by the agency originating the classified information, and will be prepared after it has been determined that the information was accessed without authorization; and
(C) Forward the report with a recommendation to the OMB General Counsel.
(2) Immediate supervisors. Upon receipt of the EOP Security Officer’s security violation memorandum, the immediate supervisor will make an inquiry into the alleged incident, and send a written report of inquiry to the EOP Security Officer. The inquiry should determine, and the related report should identify, at a minimum:
(i) Whether an actual security violation occurred;
(ii) The identity of the person(s) responsible; and
(iii) The probability of unauthorized access.
(3) Deputy Associate Directors (or the equivalent) will:
(i) Review and concur or comment on the written report; and
(ii) In conjunction with the immediate supervisor, determine what action will be taken to prevent, within their area of responsibility, a recurrence of the circumstances giving rise to the violation.
(e) Staff penalties for OMB security violations. When assessing penalties in accordance with this section, only those violations occurring within the calendar year (beginning January 1) will be considered. However, reports of all previous violations remain in the security files. These are the standard violation penalties that will be imposed. At the discretion of the Director or his designee, greater or lesser penalties may be imposed based upon the circumstances giving rise to the violation, the immediate supervisor’s report of inquiry, and the investigation and findings of the EOP Security Officer and/or the OMB Associate Director (or Assistant Director) for Administration.
(1) First violation:
(i) Written notification of the violation will be filed in the responsible individual’s security file; and
(ii) The EOP Security Officer and/or the Associate Director (or Assistant Director) for Administration will consult with the respective immediate supervisor, and the responsible individual will be advised of the penalties that may be applied should a second violation occur.
(2) Second violation:
(i) Written notification of the violation will be filed in the responsible individual’s security file;
(ii) The EOP Security Officer and/or the Associate Director (or Assistant Director) for Administration will consult with the respective Deputy Associate Director (or the equivalent) and immediate supervisor and the responsible individual who will be advised of the penalties that may be applied should a third violation occur; and
(iii) A letter of Warning will be placed in the Disciplinary Action file maintained by the Office of Administration, Human Resources Management Division.
(3) Third violation:
(i) Written notification of the violation will be filed in the responsible individual’s security file;
(ii) The EOP Security Officer and/or the Associate Director (or Assistant Director) for Administration will consult with the OMB Deputy Director, General Counsel, the respective Deputy Associate Director (or equivalent), and the immediate supervisor and the responsible individual who will be advised of the penalties that may be applied should a fourth violation occur; and
(iii) A Letter of Reprimand will be placed in the Disciplinary Action file maintained by the OA/HRMD.
(4) Fourth violation:
(i) Written notification of the violation will be filed in the responsible individual’s security file;
(ii) The EOP Security Officer and/or the Associate Director (or Assistant Director) for Administration will consult with the OMB Director, Deputy Director, General Counsel, the respective Deputy Associate Director (or the equivalent), and immediate supervisor;
(iii) The responsible individual may receive a suspension without pay for a period not to exceed 14 days; and
(iv) The responsible individual will be advised that future violations could result in the denial of access to classified material or other adverse actions as may be appropriate, including dismissal.
Subpart C – Mandatory Declassification Review
Other government agencies, and individual members of the public, frequently request that classified information in OMB files be reviewed for possible declassification and release. This subpart prescribes the procedures for such review and subsequent release or denial. It is issued under the authority of Executive Order 12958 (60 FR 19825, 3 CFR, 1995 Comp., p. 333), as implemented by Information Security Oversight Office Directive No. 1 (32 CFR part 2001).
§ 1312.33 Responsibility.
All requests for the mandatory declassification review of classified information in OMB files should be addressed to the Associate Director (or Assistant Director) for Administration, who will acknowledge receipt of the request. When a request does not reasonably describe the information sought, the requester shall be notified that unless additional information is provided, or the scope of the request is narrowed, no further action will be taken. All requests will receive a response within 180 days of receipt of the request.
§ 1312.34 Information in the custody of OMB.
Information contained in OMB files and under the exclusive declassification jurisdiction of the office will be reviewed by the office of primary interest to determine whether, under the declassification provisions of the Order, the requested information may be declassified. If so, the information will be made available to the requestor unless withholding is otherwise warranted under applicable law. If the information may not be released, in whole or in part, the requestor shall be given a brief statement as to the reasons for denial, a notice of the right to appeal the determination to the Deputy Director, OMB, and a notice that such an appeal must be filed within 60 days in order to be considered.
§ 1312.35 Information classified by another agency.
When a request is received for information that was classified by another agency, the Associate Director (or Assistant Director) for Administration will forward the request, along with any other related materials, to the appropriate agency for review and determination as to release. Recommendations as to release or denial may be made if appropriate. The requester will be notified of the referral, unless the receiving agency objects on the grounds that its association with the information requires protection.
§ 1312.36 Appeal procedure.
Appeals received as a result of a denial, see § 1312.34, will be routed to the Deputy Director who will take action as necessary to determine whether any part of the information may be declassified. If so, he will notify the requester of his determination and make that information available that is declassified and otherwise releasable. If continued classification is required, the requestor shall be notified by the Deputy Director of the reasons thereafter. Determinations on appeals will normally be made within 60 working days following receipt. If additional time is needed, the requestor will be notified and this reason given for the extension. The agency’s decision can be appealed to the Interagency Security Classification Appeals Panel.
§ 1312.37 Fees.
There will normally be no fees charged for the mandatory review of classified material for declassification under this section.
PART 1315 – PROMPT PAYMENT
§ 1315.1 Application.
(a) Procurement contracts. This part applies to contracts for the procurement of goods or services awarded by:
(1) All Executive branch agencies except:
(i) The Tennessee Valley Authority, which is subject to the Prompt Payment Act (31 U.S.C. chapter 39), but is not covered by this part; and
(ii) Agencies specifically exempted under 5 U.S.C. 551(1); and
(2) The United States Postal Service. The Postmaster General is responsible for issuing implementing procurement regulations, solicitation provisions, and contract clauses for the United States Postal Service.
(b) Vendor payments. All Executive branch vendor payments and payments to those defined as contractors or vendors (see § 1315.2(hh)) are subject to the Prompt Payment Act with the following exceptions:
(1) Contract Financing Payments, as defined in § 1315.2(h); and
(2) Payments related to emergencies (as defined in the Disaster Relief Act of 1974, Public Law 93-288, as amended (42 U.S.C. 5121 et seq.)); military contingency operations (as defined in 10 U.S.C. 101 (a)(13)); and the release or threatened release of hazardous substances (as defined in 4 U.S.C. 9606, Section 106).
(c) Utility payments. All utility payments, including payments for telephone service, are subject to the Act except those under paragraph (b)(2) of this section. Where state, local or foreign authorities impose generally-applicable late payment rates for utility payments, those rates shall take precedence. In the absence of such rates, this part will apply.
(d) Commodity Credit Corporation payments. Payments made pursuant to Section 4(h) of the Act of June 29, 1948 (15 U.S.C. 714b(h)) (“CCC Charter Act”) relating to the procurement of property and services, and payments to which producers on a farm are entitled under the terms of an agreement entered into under the Agricultural Act of 1949 (7 U.S.C. 1421 et seq.) are subject to this part.
§ 1315.2 Definitions.
(a) Accelerated payment means a payment made prior to the due date (see discussion in § 1315.5).
(b) Acceptance means an acknowledgment by an authorized Government official that goods received and services rendered conform with the contract requirements. Acceptance also applies to partial deliveries.
(c) Agency includes, as defined in 5 U.S.C. 551(1), each authority of the United States Government, whether or not it is within or subject to review by another agency, excluding the Congress, the United States courts, governments of territories or possessions, the District of Columbia government, courts martial, military commissions, and military authority exercised in the field in time of war or in occupied territory. Agency also includes any entity that is operated exclusively as an instrumentality of such an agency for the purpose of administering one or more programs of that agency, and that is so identified for this purpose by the head of such agency. The term agency includes military post and base exchanges and commissaries.
(d) Applicable interest rate means the interest rate established by the Secretary of the Treasury for interest payments under Section 12 of the Contract Disputes Act of 1978 (41 U.S.C. 611) which is in effect on the day after the due date, except where the interest penalty is prescribed by other governmental authority (e.g., utility tariffs). The rate established under the Contract Disputes Act is referred to as the “Renegotiation Board Interest Rate,” the “Contract Disputes Act Interest Rate,” and the “Prompt Payment Act Interest Rate,” and is published semiannually by the Fiscal Service, Department of Treasury, in the
(e) Automated Clearing House (ACH) means a network that performs interbank clearing of electronic debit and credit entries for participating financial institutions.
(f) Banking information means information necessary to facilitate an EFT payment, including the vendor’s bank account number, and the vendor financial institution’s routing number.
(g) Contract means any enforceable agreement, including rental and lease agreements, purchase orders, delivery orders (including obligations under Federal Supply Schedule contracts), requirements-type (open-ended) service contracts, and blanket purchases agreements between an agency and a vendor for the acquisition of goods or services and agreements entered into under the Agricultural Act of 1949 (7 U.S.C. 1421 et seq.). Contracts must meet the requirements of § 1315.9(a).
(h) Contract financing payments means an authorized disbursement of monies prior to acceptance of goods or services including advance payments, progress payments based on cost, progress payments (other than under construction contracts) based on a percentage or stage of completion, payments on performance-based contracts and interim payments on cost-type contracts (other than under cost-reimbursement contracts for the acquisition of services). Contract financing payments do not include invoice payments, payments for partial deliveries, or lease and rental payments. Contract financing payments also do not include progress payments under construction contracts based on a percentage or stage of completion and interim payments under cost-reimbursement service contracts. For purposes of this part, interim payments under a cost-reimbursement service contract are treated as invoice payments and subject to the requirements of this part, except as otherwise provided (see, e.g., §§ 1315.4(d) and (e), and 1315.9(b)(1) and (c)).
(i) Contracting office means any entity issuing a contract or purchase order or issuing a contract modification or termination.
(j) Contractor (see Vendor).
(k) Day means a calendar day including weekend and holiday, unless otherwise indicated.
(l) Delivery ticket means a vendor document supplied at the time of delivery which indicates the items delivered, can serve as a proper invoice based on contractual agreement.
(m) Designated agency office means the office designated by the purchase order, agreement, or contract to first receive and review invoices. This office can be contractually designated as the receiving entity. This office may be different from the office issuing the payment.
(n) Discount means an invoice payment reduction offered by the vendor for early payment.
(o) Discount date means the date by which a specified invoice payment reduction, or a discount, can be taken.
(p) Due date means the date on which Federal payment should be made. Determination of such dates is discussed in § 1315.4(g).
(q) Electronic commerce means the end to end electronic exchange of business information using electronic data interchange, electronic mail, electronic bulletin boards, electronic funds transfer (EFT) and similar technologies.
(r) Electronic data interchange means the computer to computer exchange of routine business information in a standard format. The standard formats are developed and maintained by the Accredited Standards Committee of the American National Standards Institute, 11 West 42d Street, New York, NY 10036.
(s) Electronic Funds Transfer (EFT) 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, but is not limited to, Automated Clearing House and Fedwire transfers.
(t) Emergency payment means a payment made under an emergency defined as a hurricane, tornado, storm, flood, high water, wind-driven water, tidal wave, tsunami, earthquake, volcanic eruption, landslide, mud slide, snowstorm, drought, fire, explosion, or other catastrophe which requires Federal emergency assistance to supplement State and local efforts to save lives and property, and ensure public health and safety; and the release or threatened release of hazardous substances.
(u) Evaluated receipts means contractually designated use of the acceptance document and the contract as the basis for payment without requiring a separate invoice.
(v) Fast payment means a payment procedure under the Federal Acquisition Regulation at Part 13.4 which allows payment under limited conditions to a vendor prior to the Government’s verification that supplies have been received and accepted.
(w) Federal Acquisition Regulation (FAR) means the regulation (48 CFR chapter 1) that governs most Federal acquisition and related payment issues. Agencies may also have supplements prescribing unique agency policies.
(x) Governmentwide commercial purchase cards means internationally-accepted purchase cards available to all Federal agencies under a General Services Administration contract for the purpose of making simplified acquisitions of up to the threshold set by the Federal Acquisition Regulation or for travel expenses or payment, for purchases of fuel, or other purposes as authorized by the contract.
(y) Invoice means a bill, written document or electronic transmission, provided by a vendor requesting payment for property received or services rendered. A proper invoice must meet the requirements of § 1315.9(b). The term invoice can include receiving reports and delivery tickets when contractually designated as invoices.
(z) Payment date means the date on which a check for payment is dated or the date of an electronic fund transfer (EFT) payment (settlement date).
(aa) Rebate means a monetary incentive offered to the Government by Governmentwide commercial purchase card issuers to pay purchase card invoices early.
(bb) Receiving office means the entity which physically receives the goods or services, and may be separate from the accepting entity.
(cc) Receiving report means written or electronic evidence of receipt of goods or services by a Government official. Receiving reports must meet the requirements of § 1315.9(c).
(dd) Recurring payments means payments for services of a recurring nature, such as rents, building maintenance, transportation services, parking, leases, and maintenance for equipment, pagers and cellular phones, etc., which are performed under agency-vendor agreements providing for payments of definite amounts at fixed periodic intervals.
(ee) Settlement date means the date on which an EFT payment is credited to the vendor’s financial institution.
(ff) Taxpayer Identifying Number (TIN) means the nine digit Employer Identifying Number or Social Security Number as defined in Section 6109 of the Internal Revenue Code of 1986 (26 U.S.C. 6109).
(gg) Utilities and telephones means electricity, water, sewage services, telephone services, and natural gas. Utilities can be regulated, unregulated, or under contract.
(hh) Vendor means any person, organization, or business concern engaged in a profession, trade, or business and any not-for-profit entity operating as a vendor (including State and local governments and foreign entities and foreign governments, but excluding Federal entities).
§ 1315.3 Responsibilities.
Each agency head is responsible for the following:
(a) Issuing internal procedures. Ensuring that internal procedures will include provisions for monitoring the causes of late payments and any interest penalties incurred, taking necessary corrective action, and handling inquiries.
(b) Internal control systems. Ensuring that effective internal control systems are established and maintained as required by OMB Circular A-123, “Management Accountability and Control.”
(c) Financial management systems. Ensuring that financial management systems comply with OMB Circular A-127, “Financial Management Systems.”
(d) Reviews. Ensuring that Inspectors General and internal auditors review payments performance and systems accuracy, consistent with the Chief Financial Officers (CFO) Act requirements.
(e) Timely payments and interest penalties. Ensuring timely payments and payment of interest penalties where required.
§ 1315.4 Prompt payment standards and required notices to vendors.
Agency business practices shall conform to the following standards:
(a) Required documentation. Agencies will maintain paper or electronic documentation as required in § 1315.9.
(b) Receipt of invoice. For the purposes of determining a payment due date and the date on which interest will begin to accrue if a payment is late, an invoice shall be deemed to be received:
(1) On the later of:
(i) For invoices that are mailed, the date a proper invoice is actually received by the designated agency office if the agency annotates the invoice with date of receipt at the time of receipt. For invoices electronically transmitted, the date a readable transmission is received by the designated agency office, or the next business day if received after normal working hours; or
(ii) The seventh day after the date on which the property is actually delivered or performance of the services is actually completed; unless –
(A) The agency has actually accepted the property or services before the seventh day in which case the acceptance date shall substitute for the seventh day after the delivery date; or
(B) A longer acceptance period is specified in the contract, in which case the date of actual acceptance or the date on which such longer acceptance period ends shall substitute for the seventh day after the delivery date;
(2) On the date placed on the invoice by the contractor, when the agency fails to annotate the invoice with date of receipt of the invoice at the time of receipt (such invoice must be a proper invoice); or
(3) On the date of delivery, when the contract specifies that the delivery ticket may serve as an invoice.
(c) Review of invoice. Agencies will use the following procedures in reviewing invoices:
(1) Each invoice will be reviewed by the designated agency office as soon as practicable after receipt to determine whether the invoice is a proper invoice as defined in § 1315.9(b);
(2) When an invoice is determined to be improper, the agency shall return the invoice to the vendor as soon as practicable after receipt, but no later than 7 days after receipt (refer also to paragraph (g)(4) of this section regarding vendor notification and determining the payment due date.) The agency will identify all defects that prevent payment and specify all reasons why the invoice is not proper and why it is being returned. This notification to the vendor shall include a request for a corrected invoice, to be clearly marked as such;
(3) Any media which produce tangible recordings of information in lieu of “written” or “original” paper document equivalents should be used by agencies to expedite the payment process, rather than delaying the process by requiring “original” paper documents. Agencies should ensure adequate safeguards and controls to ensure the integrity of the data and to prevent duplicate processing.
(d) Receipt of goods and services. Agencies will ensure that receipt is properly recorded at the time of delivery of goods or completion of services. This requirement does not apply to interim payments on cost-reimbursement service contracts except as otherwise required by agency regulations.
(e) Acceptance. Agencies will ensure that acceptance is executed as promptly as possible. Commercial items and services should not be subject to extended acceptance periods. Acceptance reports will be forwarded to the designated agency office by the fifth working day after acceptance. Unless other arrangements are made, acceptance reports will be stamped or otherwise annotated with the receipt date in the designated agency office. This requirement does not apply to interim payments on cost-reimbursement service contracts except as otherwise required by agency regulations.
(f) Starting the payment period. The period available to an agency to make timely payment of an invoice without incurring an interest penalty shall begin on the date of receipt of a proper invoice (see paragraph (b) of this section) except where no invoice is required (e.g., for some recurring payments as defined in § 1315.2(dd)).
(g) Determining the payment due date. (1) Except as provided in paragraphs (g)(2) through (5) of this section, the payment is due either:
(i) On the date(s) specified in the contract;
(ii) In accordance with discount terms when discounts are offered and taken (see § 1315.7);
(iii) In accordance with Accelerated Payment Methods (see § 1315.5); or
(iv) 30 days after the start of the payment period as specified in paragraph (f) of this section, if not specified in the contract, if discounts are not taken, and if accelerated payment methods are not used.
(2) Interim payments under cost-reimbursement contracts for services. The payment due date for interim payments under cost-reimbursement service contracts shall be 30 days after the date of receipt of a proper invoice.
(3) Certain commodity payments. (i) For meat, meat food products, as defined in Section 2(a)(3) of the Packers and Stockyard Act of 1921 (7 U.S.C. 182(3)), including any edible fresh or frozen poultry meat, any perishable poultry meat food product, fresh eggs, any perishable egg product, fresh or frozen fish as defined in the Fish and Seafood Promotion Act of 1986 (16 U.S.C. 4003(3)), payment will be made no later than the seventh day after delivery.
(ii) For perishable agricultural commodities, as defined in Section 1(4) of the Perishable Agricultural Commodities Act of 1930 (7 U.S.C. 499 a(4)), payment will be made no later than the 10th day after delivery, unless another payment date is specified in the contract.
(iii) For dairy products (as defined in Section 111(e) of the Dairy Production Stabilization Act of 1983, 7 U.S.C. 4502(e)), and including, at a minimum, liquid milk, cheese, certain processed cheese products, butter, yogurt, and ice cream, edible fats or oils, and food products prepared from edible fats or oils (including, at a minimum, mayonnaise, salad dressings and other similar products), payment will be made no later than 10 days after the date on which a proper invoice, for the amount due, has been received by the agency acquiring the above listed products. Nothing in the Act permits limitation to refrigerated products. When questions arise about the coverage of a specific product, prevailing industry practices should be followed in specifying a contractual payment due date.
(4) Mixed invoices for commodities. When an invoice is received for items with different payment periods, agencies:
(i) May pay the entire invoice on the due date for the commodity with the earliest due date, if it is considered in the best interests of the agency;
(ii) May make split payments by the due date applicable to each category;
(iii) Shall pay in accordance with the contractual payment provisions (which may not exceed the statutory mandated periods specified in paragraph (g)(2) of this section); and
(iv) Shall not require vendors to submit multiple invoices for payment of individual orders by the agency.
(5) Notification of improper invoice. When an agency fails to make notification of an improper invoice within seven days according to paragraph (c)(2) of this section (three days for meat and meat food, fish and seafood products; and five days for perishable agricultural commodities, dairy products, edible fats or oils and food products prepared from edible fats or oils), the number of days allowed for payment of the corrected proper invoice will be reduced by the number of days between the seventh day (or the third or fifth day, as otherwise specified in this paragraph (g)(4)) and the day notification was transmitted to the vendor. Calculation of interest penalties, if any, will be based on an adjusted due date reflecting the reduced number of days allowable for payment;
(h) Payment date. Payment will be considered to be made on the settlement date for an electronic funds transfer (EFT) payment or the date of the check for a check payment. Payments falling due on a weekend or federal holiday may be made on the following business day without incurring late payment interest penalties.
(i) Late payment. When payments are made after the due date, interest will be paid automatically in accordance with the procedures provided in this part.
(j) Timely payment. An agency shall make payments no more than seven days prior to the payment due date, but as close to the due date as possible, unless the agency head or designee has determined, on a case-by-case basis for specific payments, that earlier payment is necessary. This authority must be used cautiously, weighing the benefits of making a payment early against the good stewardship inherent in effective cash management practices. An agency may use the “accelerated payment methods” in § 1315.5 when it determines that such earlier payment is necessary.
(k) Payments for partial deliveries. Agencies shall pay for partial delivery of supplies or partial performance of services after acceptance, unless specifically prohibited by the contract. Payment is contingent upon submission of a proper invoice if required by the contract.
§ 1315.5 Accelerated payment methods.
(a) A single invoice under $2,500. Payments may be made as soon as the contract, proper invoice , receipt and acceptance documents are matched except where statutory authority prescribes otherwise and except where otherwise contractually stipulated (e.g., governmentwide commercial purchase card.) Vendors shall be entitled to interest penalties if invoice payments are made after the payment due date.
(b) Small business (as defined in FAR 19.001 (48 CFR 19.001)). Agencies may pay a small business as quickly as possible, when all proper documentation, including acceptance, is received in the payment office and before the payment due date. Such payments are not subject to payment restrictions stated elsewhere in this part. Vendors shall be entitled to interest penalties if invoice payments are made after the payment due date.
(c) Emergency payments. Payments related to emergencies and disasters (as defined in the Robert T. Stafford Disaster Relief Act and Emergency Assistance, Pub. L. 93-288, as amended (42 U.S.C. 5 121 et seq.); payments related to the release or threatened release of hazardous substances (as defined in the Comprehensive Environmental Response Compensation and Liability Act of 1980, Pub. L. 96-510, 42 U.S.C. 9606); and payments made under a military contingency (as defined in 10 U.S.C. 101(a)(13)) may be made as soon as the contract, proper invoice, receipt and acceptance documents or any other agreement are matched. Vendors shall be entitled to interest penalties if invoice payments are made after the payment due date.
(d) Interim payments under cost-reimbursement contracts for services. For interim payments under cost-reimbursement service contracts, agency heads may make payments earlier than seven days prior to the payment due date in accordance with agency regulations or policies.
§ 1315.6 Payment without evidence that supplies have been received (fast payment).
(a) In limited situations, payment may be made without evidence that supplies have been received. Instead, a contractor certification that supplies have been shipped may be used as the basis for authorizing payment. Payment may be made within 15 days after the date of receipt of the invoice. This payment procedure may be employed only when all of the following conditions are present:
(1) Individual orders do not exceed $25,000 (except where agency heads permits a higher amount on a case-by-case basis);
(2) Deliveries of supplies are to occur where there is both a geographical separation and a lack of adequate communications facilities between Government receiving and disbursing activities that make it impracticable to make timely payments based on evidence of Federal acceptance;
(3) Title to supplies will vest in the Government upon delivery to a post office or common carrier for mailing or shipment to destination or upon receipt by the Government if the shipment is by means other than the Postal Service or a common carrier; and
(4) The contractor agrees to replace, repair, or correct supplies not received at destination, damaged in transit, or not conforming to purchase requirements.
(b) Agencies shall promptly inspect and accept supplies acquired under these procedures and shall ensure that receiving reports and payment documents are matched and steps are taken to correct discrepancies.
(c) Agencies shall ensure that specific internal controls are in place to assure that supplies paid for are received.
(d) As authorized by the 1988 Amendment to the Prompt Payment Act (Section 11(b)(1)(C)), a contract clause at 48 CFR 52.213-1 is provided in the Federal Acquisition Regulations (FAR) at 48 CFR part 13, subpart 13.4 “Fast Payment Procedure,” for use when using this fast payment procedure.
§ 1315.7 Discounts.
Agencies shall follow these procedures in taking discounts and determining the payment due dates when discounts are taken:
(a) Economically justified discounts. If an agency is offered a discount by a vendor, whether stipulated in the contract or offered on an invoice, an agency may take the discount if economically justified (see discount formula in Treasury Financial Manual (TFM) 6-8040.40)
(b) Discounts taken after the discount date. If an agency takes the discount after the deadline, the agency shall pay an interest penalty on any amount remaining unpaid as prescribed in § 1315.10(a)(6).
(c) Payment date. When a discount is taken, payment will be made as close as possible to, but no later than, the discount date.
(d) Start date. The period for taking the discount is calculated from the date placed on the proper invoice by the vendor. If there is no invoice date on the invoice by the vendor, the discount period will begin on the date a proper invoice is actually received and date stamped or otherwise annotated by the designated agency office.
§ 1315.8 Rebates.
Agencies shall determine governmentwide commercial purchase card payment dates based on an analysis of the total costs and total benefits to the Federal government as a whole, unless specified in a contract. When calculating costs and benefits, agencies are expected to include the cost to the government of paying early. This cost is the interest the government would have earned, at the Current Value of Funds rate, for each day that payment was not made. Agencies may factor in benefits gained from paying early due to, for example, streamlining the payment process or other efficiencies. A rebate formula is provided in § 1315.17 and at the Prompt Payment website at www.fms.treas.gov/prompt/index.html.
§ 1315.9 Required documentation.
Agencies are required to ensure the following payment documentation is established to support payment of invoices and interest penalties:
(a) The following information from the contract is required as payment documentation:
(1) Payment due date(s) as defined in § 1315.4(g);
(2) A notation in the contract that partial payments are prohibited, if applicable;
(3) For construction contracts, specific payment due dates for approved progress payments or milestone payments for completed phases, increments, or segments of the project;
(4) If applicable, a statement that the special payment provisions of the Packers and Stockyard Act of 1921 (7 U.S.C. 182(3)), or the Perishable Agricultural Commodities Act of 1930 (7 U.S.C. 499a(4)), or Fish and Seafood Promotion Act of 1986 (16 U.S.C. 4003(3)) shall apply;
(5) Where considered appropriate by the agency head, the specified acceptance period following delivery to inspect and/or test goods furnished or to evaluate services performed is stated;
(6) Name (where practicable), title, telephone number, and complete mailing address of officials of the Government’s designated agency office, and of the vendor receiving the payments;
(7) Reference to requirements under the Prompt Payment Act, including the payment of interest penalties on late invoice payments (including progress payments under construction contracts);
(8) Reference to requirements under the Debt Collection Improvement Act (Pub. L. 104-134, 110 Stat. 1321), including the requirement that payments must be made electronically except in situations where the EFT requirement is waived under 31 CFR 208.4. Where electronic payment is required, the contract will stipulate that banking information must be submitted no later than the first request for payment;
(9) If using Fast Payment, the proper FAR clause stipulating Fast Payment is required.
(b)(1) Except for interim payment requests under cost-reimbursement service contracts, which are covered by paragraph (b)(2) of this section, the following correct information constitutes a proper invoice and is required as payment documentation:
(i) Name of vendor;
(ii) Invoice date;
(iii) Government contract number, or other authorization for delivery of goods or services;
(iv) Vendor invoice number, account number, and/or any other identifying number agreed to by contract;
(v) Description (including, for example, contract line/subline number), price, and quantity of goods and services rendered;
(vi) Shipping and payment terms (unless mutually agreed that this information is only required in the contract);
(vii) Taxpayer Identifying Number (TIN), unless agency procedures provide otherwise;
(viii) Banking information, unless agency procedures provide otherwise, or except in situations where the EFT requirement is waived under 31 CFR 208.4;
(ix) Contact name (where practicable), title and telephone number;
(x) Other substantiating documentation or information required by the contract.
(2) An interim payment request under a cost-reimbursement service contract constitutes a proper invoice for purposes of this part if it correctly includes all the information required by the contract or by agency procedures.
(c) Except for interim payment requests under cost-reimbursement service contracts, the following information from receiving reports, delivery tickets, and evaluated receipts is required as payment documentation:
(1) Name of vendor;
(2) Contract or other authorization number;
(3) Description of goods or services;
(4) Quantities received, if applicable;
(5) Date(s) goods were delivered or services were provided;
(6) Date(s) goods or services were accepted;
(7) Signature (or electronic alternative when supported by appropriate internal controls), printed name, telephone number, mailing address of the receiving official, and any additional information required by the agency.
(d) When a delivery ticket is used as an invoice, it must contain information required by agency procedures. The requirements in paragraph (b) of this section do not apply except as provided by agency procedures.
§ 1315.10 Late payment interest penalties.
(a) Application and calculation. Agencies will use the following procedures in calculating interest due on late payments:
(1) Interest will be calculated from the day after the payment due date through the payment date at the interest rate in effect on the day after the payment due date;
(2) Adjustments will be made for errors in calculating interest;
(3) For up to one year, interest penalties remaining unpaid at the end of any 30 day period will be added to the principal and subsequent interest penalties will accrue on that amount until paid;
(4) When an interest penalty is owed and not paid, interest will accrue on the unpaid amount until paid, except as described in paragraph (a)(5) of this section;
(5) Interest penalties under the Prompt Payment Act will not continue to accrue:
(i) After the filing of a claim for such penalties under the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.); or
(ii) For more than one year;
(6) When an agency takes a discount after the discount date, interest will be paid on the amount of the discount taken. Interest will be calculated for the period beginning the day after the specified discount date through the date of payment of the discount erroneously taken;
(7) Interest penalties of less than one dollar need not be paid;
(8) If the banking information supplied by the vendor is incorrect, interest under this regulation will not accrue until seven days after such correct information is received (provided that the vendor has been given notice of the incorrect banking information within seven days after the agency is notified that the information is incorrect);
(9) Interest calculations are to be based on a 360 day year; and
(10) The applicable interest rate may be obtained by calling the Department of Treasury’s Financial Management Service (FMS) Prompt Payment help line at 1-800-266-9667.
(b) Payment. Agencies will meet the following requirements in paying interest penalties:
(1) Interest may be paid only after acceptance has occurred; when title passes to the government in a fast payment contract when title passing to the government constitutes acceptance for purposes of determining when interest may be paid; or when the payment is an interim payment under a cost-reimbursement service contract;
(2) Late payment interest penalties shall be paid without regard to whether the vendor has requested payment of such penalty, and shall be accompanied by a notice stating the amount of the interest penalty, the number of days late and the rate used;
(3) The invoice number or other agreed upon transaction reference number assigned by the vendor should be included in the notice to assist the vendor in reconciling the payment. Additionally, it is optional as to whether or not an agency includes the contract number in the notice to the vendor;
(4) The temporary unavailability of funds does not relieve an agency from the obligation to pay these interest penalties or the additional penalties required under § 1315.11; and
(5) Agencies shall pay any late payment interest penalties (including any additional penalties required under § 1315.11) under this part from the funds available for the administration of the program for which the penalty was incurred. The Prompt Payment Act does not authorize the appropriation of additional amounts to pay penalties.
(c) Penalties not due. Interest penalties are not required:
(1) When payment is delayed because of a dispute between a Federal agency and a vendor over the amount of the payment or other issues concerning compliance with the terms of a contract. Claims concerning disputes, and any interest that may be payable with respect to the period, while the dispute is being settled, will be resolved in accordance with the provisions in the Contract Disputes Act of 1978, (41 U.S.C. 601 et seq.), except for interest payments required under 31 U.S.C. 3902(h)(2);
(2) When payments are made solely for financing purposes or in advance, except for interest payment required under 31 U.S.C. 3902(h)(2);
(3) For a period when amounts are withheld temporarily in accordance with the contract;
(4) When an EFT payment is not credited to the vendor’s account by the payment due date because of the failure of the Federal Reserve or the vendor’s bank to do so; or
(5) When the interest penalty is less than $1.00.
§ 1315.11 Additional penalties.
(a) Vendor entitlements. A vendor shall be entitled to an additional penalty payment when the vendor is owed a late payment interest penalty by an agency of $1.00 or more, if it:
(1) Receives a payment dated after the payment due date which does not include the interest penalty also due to the vendor;
(2) Is not paid the interest penalty by the agency within 10 days after the actual payment date; and
(3) Makes a written request that the agency pay such an additional penalty. Such request must be postmarked, received by facsimile, or by electronic mail, by the 40th day after payment was made. If there is no postmark or if it is illegible, the request will be valid if it is received and annotated with the date of receipt by the agency by the 40th day. The written request must include the following:
(i) Specific assertion that late payment interest is due for a specific invoice, and request payment of all overdue late payment interest penalty and such additional penalty as may be required; and
(ii) A copy of the invoice on which late payment interest was due but not paid and a statement that the principal has been received, and the date of receipt of the principle.
(b) Maximum penalty. The additional penalty shall be equal to one hundred (100) percent of the original late payment interest penalty but must not exceed $5,000.
(c) Minimum penalty. Regardless of the amount of the late payment interest penalty, the additional penalty paid shall not be less than $25. No additional penalty is owed, however, if the amount of the interest penalty is less than $1.00.
(d) Penalty basis. The penalty is based on individual invoices. Where payments are consolidated for disbursing purposes, the penalty determinations shall be made separately for each invoice therein.
(e) Utility payments. The additional penalty does not apply to the payment of utility bills where late payment penalties for these bills are determined through the tariff rate-setting process.
§ 1315.12 Payments to governmentwide commercial purchase card issuers.
Standards for payments to government wide commercial purchase card issuers follow:
(a) Payment date. All individual purchase card invoices under $2,500 may be paid at any time, but not later than 30 days after the receipt of a proper invoice. Matching documents is not required before payment. The payment due date for invoices in the amount of $2,500 or more shall be determined in accordance with § 1315.8. I TFM 4-4535.10
(b) Disputed line items. Disputed line items do not render the entire invoice an improper invoice for compliance with this proposed regulation. Any undisputed items must be paid in accordance with paragraph (a) of this section.
§ 1315.13 Commodity Credit Corporation payments.
As provided in § 1315.1(d), the provisions of this part apply to payments relating to the procurement of property and services made by the Commodity Credit Corporation (CCC) pursuant to Section 4(h) of the Act of June 29, 1948 (15 U.S.C. 714b(h)) (“CCC Charter Act”) and payments to which producers on a farm are entitled under the terms of an agreement entered into pursuant to the Agricultural Act of 1949 (7 U.S.C. 1421 et seq.) (“1949 Act”.) Such payments shall be subject to the following provisions:
(a) Payment standards. Payments to producers on a farm under agreements entered into under the 1949 Act and payments to vendors providing property and services under the CCC Charter Act, shall be made as close as possible to the required payment date or loan closing date.
(b) Interest penalties. An interest penalty shall be paid to vendors or producers if the payment has not been made by the required payment or loan closing date. The interest penalty shall be paid:
(1) On the amount of payment or loan due;
(2) For the period beginning on the first day beginning after the required payment or loan closing date and, except as determined appropriate by the CCC consistent with applicable law, ending on the date the amount is paid or loaned; and
(3) Out of funds available under Section 8 of the CCC Charter Act (15 U.S.C. 714f).
(c) Contract Disputes Act of 1978. Insofar as covered CCC payments are concerned, provisions relating to the Contract Disputes Act of 1978 (41 U.S.C. 601 et seq.) in § 1315.10(a)(5)(i) and § 1315.6(a) do not apply.
(d) Extended periods for payment. Notwithstanding other provisions of this part, the CCC may allow claims for such periods of time as are consistent with authorities applicable to its operations.
§ 1315.14 Payments under construction contracts.
(a) Payment standards. Agencies shall follow these standards when making progress payments under construction contracts:
(1) An agency may approve a request for progress payment if the application meets the requirements specified in paragraph (b) of this section;
(2) The certification by the prime vendor as defined in paragraph (b)(2) of this section is not to be construed as final acceptance of the subcontractor’s performance;
(3) The agency shall return any such payment request which is defective to the vendor within seven days after receipt, with a statement identifying the defect(s);
(4) A vendor is obligated to pay interest to the Government on unearned amounts in its possession from:
(i) The eighth day after receipt of funds from the agency until the date the vendor notifies the agency that the performance deficiency has been corrected, or the date the vendor reduces the amount of any subsequent payment request by an amount equal to the unearned amount in its possession, when the vendor discovers that all or a portion of a payment received from the agency constitutes a payment for the vendor’s performance that fails to conform to the specifications, terms, and conditions of its contract with the agency, under 31 U.S.C. 3905(a); or
(ii) The eighth day after the receipt of funds from the agency until the date the performance deficiency of a subcontractor is corrected, or the date the vendor reduces the amount of any subsequent payment request by an amount equal to the unearned amount in its possession, when the vendor discovers that all or a portion of a payment received from the agency would constitute a payment for the subcontractor’s performance that fails to conform to the subcontract agreement and may be withheld, under 31 U.S.C. 3905(e);
(5) Interest payment on unearned amounts to the government under 31 U.S.C. 3905(a)(2) or 3905(e)(6), shall:
(i) Be computed on the basis of the average bond equivalent rates of 91-day Treasury bills auctioned at the most recent auction of such bills prior to the date the vendor received the unearned amount;
(ii) Be deducted from the next available payment to the vendor; and
(iii) Revert to the Treasury.
(b) Required documentation. (1) Substantiation of the amount(s) requested shall include:
(i) An itemization of the amounts requested related to the various elements of work specified in the contract;
(ii) A listing of the amount included for work performed by each subcontractor under the contract;
(iii) A listing of the total amount for each subcontract under the contract;
(iv) A listing of the amounts previously paid to each subcontractor under the contract; and
(v) Additional supporting data and detail in a form required by the contracting officer.
(2) Certification by the prime vendor is required, to the best of the vendor’s knowledge and belief, that:
(i) The amounts requested are only for performance in accordance with the specifications, terms, and conditions of the contract;
(ii) Payments to subcontractors and suppliers have been made from previous payments received under the contract, and timely payments will be made from the proceeds of the payment covered by the certification, in accordance with their subcontract agreements and the requirements of 31 U.S.C. chapter 39; and
(iii) The application does not include any amounts which the prime vendor intends to withhold or retain from a subcontractor or supplier, in accordance with the terms and conditions of their subcontract.
(c) Interest penalties. (1) Agencies will pay interest on:
(i) A progress payment request (including a monthly percentage-of-completion progress payment or milestone payments for completed phases, increments, or segments of any project) that is approved as payable by the agency pursuant to paragraph (b) of this section, and remains unpaid for:
(A) A period of more than 14 days after receipt of the payment request by the designated agency office; or
(B) A longer period specified in the solicitation and/or contract if required, to afford the Government a practicable opportunity to adequately inspect the work and to determine the adequacy of the vendor’s performance under the contract;
(ii) Any amounts that the agency has retained pursuant to a prime contract clause providing for retaining a percentage of progress payments otherwise due to a vendor and that are approved for release to the vendor, if such retained amounts are not paid to the vendor by a date specified in the contract, or, in the absence of such a specified date, by the 30th day after final acceptance;
(iii) Final payments, based on completion and acceptance of all work (including any retained amounts), and payments for partial performances that have been accepted by the agency, if such payments are made after the later of:
(A) The 30th day after the date on which the designated agency office receives a proper invoice; or
(B) The 30th day after agency acceptance of the completed work or services. Acceptance shall be deemed to have occurred on the effective date of contract settlement on a final invoice where the payment amount is subject to contract settlement actions.
(2) For the purpose of computing interest penalties, acceptance shall be deemed to have occurred on the seventh day after work or services have been completed in accordance with the terms of the contract.
§ 1315.15 Grant recipients.
Recipients of Federal assistance may pay interest penalties if so specified in their contracts with contractors. However, obligations to pay such interest penalties will not be obligations of the United States. Federal funds may not be used for this purpose, nor may interest penalties be used to meet matching requirements of federally assisted programs.
§ 1315.16 Relationship to other laws.
(a) Contract Disputes Act of 1978 (41 U.S.C. 605). (1) A claim for an interest penalty (including the additional penalty for non-payment of interest if the vendor has complied with the requirements of § 1315.9) not paid under this part may be filed under Section 6 of the Contract Disputes Act.
(2) An interest penalty under this part does not continue to accrue after a claim for a penalty is filed under the Contract Disputes Act or for more than one year. Once a claim is filed under the Contract Disputes Act interest penalties under this part will never accrue on the amounts of the claim, for any period after the date the claim was filed. This does not prevent an interest penalty from accruing under Section 13 of the Contract Disputes Act after a penalty stops accruing under this part. Such penalty may accrue on an unpaid contract payment and on the unpaid penalty under this part.
(3) This part does not require an interest penalty on a payment that is not made because of a dispute between the head of an agency and a vendor over the amount of payment or compliance with the contract. A claim related to such a dispute and interest payable for the period during which the dispute is being resolved is subject to the Contract Disputes Act.
(b) Small Business Act (15 U.S.C. 644(k)). This Act has been amended to require that any agency with an Office of Small and Disadvantaged Business Utilization must assist small business concerns to obtain payments, late payment interest penalties, additional penalties, or information due to the concerns.
§ 1315.17 Formulas.
(a) Rebate formula. (1) Agencies shall determine credit card payment dates based on an analysis of the total benefits to the Federal government as a whole. Specifically, agencies should compare daily basis points offered by the card issuer with the corresponding daily basis points of the government’s Current Value of Funds (CVF) rate. If the basis points offered by the card issuer are greater than the daily basis points of the government” funds, the government will maximize savings by paying on the earliest possible date. If the basis points offered by the card issuer are less than the daily basis points of the government” funds, the government will minimize costs by paying on the Prompt Payment due date or the date specified in the contract.
(2) Agencies may use a rebate spreadsheet which automatically calculates the net savings to the government and whether the agency should pay early or late. The only variables required for input to this spreadsheet are the CVF rate, the Maximum Discount Rate, that is, the rate from which daily basis points offered by the card issuer are derived, and the amount of debt. This spreadsheet is available for use on the prompt payment website at www.fms.treas.gov/prompt/index/.html.
(3) If agencies chose not to use the spreadsheet, the following may be used to determine whether to pay early or late. To calculate whether to pay early or late, agencies must first determine the respective basis points. To obtain Daily Basis Points offered by card issuer, refer to the agency’s contract with the card issuer. Use the following formula to calculate the average daily basis points of the CVF rate:
(4) For example: The daily basis points offered to agency X by card issuer Y are 1.5 basis points. That is, for every day the agency delays paying the card issuer the agency loses 1.5 basis points in savings. At a CVF of 5 percent, the daily basis points of the Current Value of Funds Rate are 1.4 basis points. That is, every day the agency delays paying, the government earns 1.4 basis points. The basis points were calculated using the formula:
(5) Because 1.5 is greater than 1.4, the agency should pay as early as possible. If the basis points offered by the card issuer are less than the daily basis points of the government” funds (if for instance the rebate equaled 1.3 basis points and the CVF was still 1.4 basis points or if the rebate equaled 1.5 but the CVF equaled 1.6), the government will minimize costs by paying as late as possible, but by the payment due date.
(b) Daily simple interest formula. (1) To calculate daily simple interest the following formula may be used:
(2) For example, if a payment is due on April 1 and the payment is not made until April 11, a simple interest calculation will determine the amount of interest owed the vendor for the late payment. Using the formula above, at an invoice amount of $1,500 paid 10 days late and an interest rate of 6.5%, the amount of interest owed is calculated as follows:
(c) Monthly compounding interest formula. (1) To calculate interest as required in § 1315.10(a)(3), the following formula may be used:
(2) The first part of the equation calculates compounded monthly interest. The second part of the equation calculates simple interest on any additional days beyond a monthly increment.
(3) For example, if the amount owed is $1,500, the payment due date is April 1, the agency does not pay until June 15 and the applicable interest rate is 6 percent, interest is calculated as follows:
§ 1315.18 Inquiries.
(a) Regulation. Inquiries concerning this part may be directed in writing to the Department of the Treasury, Financial Management Service (FMS), Cash Management Policy and Planning Division, 401 14th Street, SW. Washington, DC 20227, (202) 874-6590, or by calling the Prompt Payment help line at 1-800-266-9667, by emailing questions to FMS at [email protected], or by completing a Prompt Payment inquiry form available at www.fms.treas.gov/prompt/inquiries.html.
(b) Applicable interest rate. The rate is published by the Fiscal Service, Department of the Treasury, semiannually in the
(c) Agency payments. Questions concerning delinquent payments should be directed to the designated agency office, or the office responsible for issuing the payment if different from the designated agency office. Questions about disagreements over payment amount or timing should be directed to the contracting officer for resolution. Small business concerns may obtain additional assistance on payment issues by contacting the agency’s Office of Small and Disadvantaged Business Utilization.
§ 1315.19 Regulatory references to OMB Circular A-125.
This part supercedes OMB Circular A-125 (“Prompt Payment”). Until revised to reflect the codification in this part, regulatory references to Circular A-125 shall be construed as referring to this part.
§ 1315.20 Application of Section 1010 of the National Defense Authorization Act for Fiscal Year 2001.
Section 1010 of the National Defense Authorization Act for Fiscal Year 2001 (Public Law 106-398, 114 Stat. 1654), as amended by section 1007 of the National Defense Authorization Act for Fiscal Year 2002 (Public Law 107-107, 115 Stat. 1012), requires an agency to pay an interest penalty whenever the agency makes an interim payment under a cost-reimbursement contract for services more than 30 days after the date the agency receives a proper invoice for payment from the contractor. This part implements Section 1010, as amended, and is applicable in the following manner:
(a) This part shall apply to all interim payment requests that are due on or after December 15, 2000 under cost-reimbursement service contracts awarded before, on, or after December 15, 2000.
(b) No interest penalty shall accrue under this part for any delay in payment that occurred prior to December 15, 2000.
(c) Agencies are authorized to issue modifications to contracts, as necessary, to conform them to the provisions in this part implementing Section 1010, as amended.
PART 1320 – CONTROLLING PAPERWORK BURDENS ON THE PUBLIC
§ 1320.1 Purpose.
The purpose of this part is to implement the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35)(the Act) concerning collections of information. It is issued under the authority of section 3516 of the Act, which provides that “The Director shall promulgate rules, regulations, or procedures necessary to exercise the authority provided by this chapter.” It is designed to reduce, minimize and control burdens and maximize the practical utility and public benefit of the information created, collected, disclosed, maintained, used, shared and disseminated by or for the Federal government.
§ 1320.2 Effect.
(a) Except as provided in paragraph (b) of this section, this part takes effect on October 1, 1995.
(b)(1) In the case of a collection of information for which there is in effect on September 30, 1995, a control number issued by the Office of Management and Budget under 44 U.S.C. Chapter 35, the provisions of this Part shall take effect beginning on the earlier of:
(i) The date of the first extension of approval for or modification of that collection of information after September 30, 1995; or
(ii) The date of the expiration of the OMB control number after September 30, 1995.
(2) Prior to such extension of approval, modification, or expiration, the collection of information shall be subject to 5 CFR part 1320, as in effect on September 30, 1995.
§ 1320.3 Definitions.
For purposes of implementing the Act and this Part, the following terms are defined as follows:
(a) Agency means any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the government, or any independent regulatory agency, but does not include:
(1) The General Accounting Office;
(2) Federal Election Commission;
(3) The governments of the District of Columbia and the territories and possessions of the United States, and their various subdivisions; or
(4) Government-owned contractor-operated facilities, including laboratories engaged in national defense research and production activities.
(b)(1) Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency, including:
(i) Reviewing instructions;
(ii) Developing, acquiring, installing, and utilizing technology and systems for the purpose of collecting, validating, and verifying information;
(iii) Developing, acquiring, installing, and utilizing technology and systems for the purpose of processing and maintaining information;
(iv) Developing, acquiring, installing, and utilizing technology and systems for the purpose of disclosing and providing information;
(v) Adjusting the existing ways to comply with any previously applicable instructions and requirements;
(vi) Training personnel to be able to respond to a collection of information;
(vii) Searching data sources;
(viii) Completing and reviewing the collection of information; and
(ix) Transmitting, or otherwise disclosing the information.
(2) The time, effort, and financial resources necessary to comply with a collection of information that would be incurred by persons in the normal course of their activities (e.g., in compiling and maintaining business records) will be excluded from the “burden” if the agency demonstrates that the reporting, recordkeeping, or disclosure activities needed to comply are usual and customary.
(3) A collection of information conducted or sponsored by a Federal agency that is also conducted or sponsored by a unit of State, local, or tribal government is presumed to impose a Federal burden except to the extent that the agency shows that such State, local, or tribal requirement would be imposed even in the absence of a Federal requirement.
(c) Collection of information means, except as provided in § 1320.4, the obtaining, causing to be obtained, soliciting, or requiring the disclosure to an agency, third parties or the public of information by or for an agency by means of identical questions posed to, or identical reporting, recordkeeping, or disclosure requirements imposed on, ten or more persons, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit. “Collection of information” includes any requirement or request for persons to obtain, maintain, retain, report, or publicly disclose information. As used in this Part, “collection of information” refers to the act of collecting or disclosing information, to the information to be collected or disclosed, to a plan and/or an instrument calling for the collection or disclosure of information, or any of these, as appropriate.
(1) A “collection of information” may be in any form or format, including the use of report forms; application forms; schedules; questionnaires; surveys; reporting or recordkeeping requirements; contracts; agreements; policy statements; plans; rules or regulations; planning requirements; circulars; directives; instructions; bulletins; requests for proposal or other procurement requirements; interview guides; oral communications; posting, notification, labeling, or similar disclosure requirements; telegraphic or telephonic requests; automated, electronic, mechanical, or other technological collection techniques; standard questionnaires used to monitor compliance with agency requirements; or any other techniques or technological methods used to monitor compliance with agency requirements. A “collection of information” may implicitly or explicitly include related collection of information requirements.
(2) Requirements by an agency for a person to obtain or compile information for the purpose of disclosure to members of the public or the public at large, through posting, notification, labeling or similar disclosure requirements constitute the “collection of information” whenever the same requirement to obtain or compile information would be a “collection of information” if the information were directly provided to the agency. The public disclosure of information originally supplied by the Federal government to the recipient for the purpose of disclosure to the public is not included within this definition.
(3) “Collection of information” includes questions posed to agencies, instrumentalities, or employees of the United States, if the results are to be used for general statistical purposes, that is, if the results are to be used for statistical compilations of general public interest, including compilations showing the status or implementation of Federal activities and programs.
(4) As used in paragraph (c) of this section, “ten or more persons” refers to the persons to whom a collection of information is addressed by the agency within any 12-month period, and to any independent entities to which the initial addressee may reasonably be expected to transmit the collection of information during that period, including independent State, territorial, tribal or local entities and separately incorporated subsidiaries or affiliates. For the purposes of this definition of “ten or more persons,” “persons” does not include employees of the respondent acting within the scope of their employment, contractors engaged by a respondent for the purpose of complying with the collection of information, or current employees of the Federal government (including military reservists and members of the National Guard while on active duty) when acting within the scope of their employment, but it does include retired and other former Federal employees.
(i) Any recordkeeping, reporting, or disclosure requirement contained in a rule of general applicability is deemed to involve ten or more persons.
(ii) Any collection of information addressed to all or a substantial majority of an industry is presumed to involve ten or more persons.
(d) Conduct or Sponsor. A Federal agency is considered to “conduct or sponsor” a collection of information if the agency collects the information, causes another agency to collect the information, contracts or enters into a cooperative agreement with a person to collect the information, or requires a person to provide information to another person, or in similar ways causes another agency, contractor, partner in a cooperative agreement, or person to obtain, solicit, or require the disclosure to third parties or the public of information by or for an agency. A collection of information undertaken by a recipient of a Federal grant is considered to be “conducted or sponsored” by an agency only if:
(1) The recipient of a grant is conducting the collection of information at the specific request of the agency; or
(2) The terms and conditions of the grant require specific approval by the agency of the collection of information or collection procedures.
(e) Director means the Director of OMB, or his or her designee.
(f) Display means:
(1) In the case of forms, questionnaires, instructions, and other written collections of information sent or made available to potential respondents (other than in an electronic format), to place the currently valid OMB control number on the front page of the collection of information;
(2) In the case of forms, questionnaires, instructions, and other written collections of information sent or made available to potential respondents in an electronic format, to place the currently valid OMB control number in the instructions, near the title of the electronic collection instrument, or, for on-line applications, on the first screen viewed by the respondent;
(3) In the case of collections of information published in regulations, guidelines, and other issuances in the
(4) In other cases, and where OMB determines in advance in writing that special circumstances exist, to use other means to inform potential respondents of the OMB control number.
(g) Independent regulatory agency means the Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Housing Finance Board, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Mine Enforcement Safety and Health Review Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Postal Rate Commission, the Securities and Exchange Commission, and any other similar agency designated by statute as a Federal independent regulatory agency or commission.
(h) Information means any statement or estimate of fact or opinion, regardless of form or format, whether in numerical, graphic, or narrative form, and whether oral or maintained on paper, electronic or other media. “Information” does not generally include items in the following categories; however, OMB may determine that any specific item constitutes “information”:
(1) Affidavits, oaths, affirmations, certifications, receipts, changes of address, consents, or acknowledgments; provided that they entail no burden other than that necessary to identify the respondent, the date, the respondent’s address, and the nature of the instrument (by contrast, a certification would likely involve the collection of “information” if an agency conducted or sponsored it as a substitute for a collection of information to collect evidence of, or to monitor, compliance with regulatory standards, because such a certification would generally entail burden in addition to that necessary to identify the respondent, the date, the respondent’s address, and the nature of the instrument);
(2) Samples of products or of any other physical objects;
(3) Facts or opinions obtained through direct observation by an employee or agent of the sponsoring agency or through nonstandardized oral communication in connection with such direct observations;
(4) Facts or opinions submitted in response to general solicitations of comments from the public, published in the
(5) Facts or opinions obtained initially or in follow-on requests, from individuals (including individuals in control groups) under treatment or clinical examination in connection with research on or prophylaxis to prevent a clinical disorder, direct treatment of that disorder, or the interpretation of biological analyses of body fluids, tissues, or other specimens, or the identification or classification of such specimens;
(6) A request for facts or opinions addressed to a single person;
(7) Examinations designed to test the aptitude, abilities, or knowledge of the persons tested and the collection of information for identification or classification in connection with such examinations;
(8) Facts or opinions obtained or solicited at or in connection with public hearings or meetings;
(9) Facts or opinions obtained or solicited through nonstandardized follow-up questions designed to clarify responses to approved collections of information; and
(10) Like items so designated by OMB.
(i) OMB refers to the Office of Management and Budget.
(j) Penalty includes the imposition by an agency or court of a fine or other punishment; a judgment for monetary damages or equitable relief; or the revocation, suspension, reduction, or denial of a license, privilege, right, grant, or benefit.
(k) Person means an individual, partnership, association, corporation (including operations of government-owned contractor-operated facilities), business trust, or legal representative, an organized group of individuals, a State, territorial, tribal, or local government or branch thereof, or a political subdivision of a State, territory, tribal, or local government or a branch of a political subdivision;
(l) Practical utility means the actual, not merely the theoretical or potential, usefulness of information to or for an agency, taking into account its accuracy, validity, adequacy, and reliability, and the agency’s ability to process the information it collects (or a person’s ability to receive and process that which is disclosed, in the case of a third-party or public disclosure) in a useful and timely fashion. In determining whether information will have “practical utility,” OMB will take into account whether the agency demonstrates actual timely use for the information either to carry out its functions or make it available to third-parties or the public, either directly or by means of a third-party or public posting, notification, labeling, or similar disclosure requirement, for the use of persons who have an interest in entities or transactions over which the agency has jurisdiction. In the case of recordkeeping requirements or general purpose statistics (see § 1320.3(c)(3)), “practical utility” means that actual uses can be demonstrated.
(m) Recordkeeping requirement means a requirement imposed by or for an agency on persons to maintain specified records, including a requirement to:
(1) Retain such records;
(2) Notify third parties, the Federal government, or the public of the existence of such records;
(3) Disclose such records to third parties, the Federal government, or the public; or
(4) Report to third parties, the Federal government, or the public regarding such records.
§ 1320.4 Coverage.
(a) The requirements of this part apply to all agencies as defined in § 1320.3(a) and to all collections of information conducted or sponsored by those agencies, as defined in § 1320.3 (c) and (d), wherever conducted or sponsored, but, except as provided in paragraph (b) of this section, shall not apply to collections of information:
(1) During the conduct of a Federal criminal investigation or prosecution, or during the disposition of a particular criminal matter;
(2) During the conduct of a civil action to which the United States or any official or agency thereof is a party, or during the conduct of an administrative action, investigation, or audit involving an agency against specific individuals or entities;
(3) By compulsory process pursuant to the Antitrust Civil Process Act and section 13 of the Federal Trade Commission Improvements Act of 1980; or
(4) During the conduct of intelligence activities as defined in section 3.4(e) of Executive Order No. 12333, issued December 4, 1981, or successor orders, or during the conduct of cryptologic activities that are communications security activities.
(b) The requirements of this Part apply to the collection of information during the conduct of general investigations or audits (other than information collected in an antitrust investigation to the extent provided in paragraph (a)(3) of this section) undertaken with reference to a category of individuals or entities such as a class of licensees or an entire industry.
(c) The exception in paragraph (a)(2) of this section applies during the entire course of the investigation, audit, or action, whether before or after formal charges or complaints are filed or formal administrative action is initiated, but only after a case file or equivalent is opened with respect to a particular party. In accordance with paragraph (b) of this section, collections of information prepared or undertaken with reference to a category of individuals or entities, such as a class of licensees or an industry, do not fall within this exception.
§ 1320.5 General requirements.
(a) An agency shall not conduct or sponsor a collection of information unless, in advance of the adoption or revision of the collection of information –
(1) The agency has –
(i) Conducted the review required in § 1320.8;
(ii) Evaluated the public comments received under § 1320.8(d) and § 1320.11;
(iii) Submitted to the Director, in accordance with such procedures and in such form as OMB may specify,
(A) The certification required under § 1320.9,
(B) The proposed collection of information in accordance with § 1320.10, § 1320.11, or § 1320.12, as appropriate,
(C) An explanation for the decision that it would not be appropriate, under § 1320.8(b)(1), for a proposed collection of information to display an expiration date;
(D) An explanation for a decision to provide for any payment or gift to respondents, other than remuneration of contractors or grantees;
(E) A statement indicating whether (and if so, to what extent) the proposed collection of information involves the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses, and an explanation for the decision;
(F) A summary of the public comments received under § 1320.8(d), including actions taken by the agency in response to the comments, and the date and page of the publication in the
(G) Copies of pertinent statutory authority, regulations, and such related supporting materials as OMB may request; and
(iv) Published, except as provided in § 1320.13(d), a notice in the
(A) Stating that the agency has made such submission; and
(B) Setting forth –
(1) A title for the collection of information;
(2) A summary of the collection of information;
(3) A brief description of the need for the information and proposed use of the information;
(4) A description of the likely respondents, including the estimated number of likely respondents, and proposed frequency of response to the collection of information;
(5) An estimate of the total annual reporting and recordkeeping burden that will result from the collection of information;
(6) Notice that comments may be submitted to OMB; and
(7) The time period within which the agency is requesting OMB to approve or disapprove the collection of information if, at the time of submittal of a collection of information for OMB review under § 1320.10, § 1320.11 or § 1320.12, the agency plans to request or has requested OMB to conduct its review on an emergency basis under § 1320.13; and
(2) OMB has approved the proposed collection of information, OMB’s approval has been inferred under § 1320.10(c), § 1320.11(i), or § 1320.12(e), or OMB’s disapproval has been voided by an independent regulatory agency under § 1320.15; and
(3) The agency has obtained from the Director a control number to be displayed upon the collection of information.
(b) In addition to the requirements in paragraph (a) of this section, an agency shall not conduct or sponsor a collection of information unless:
(1) The collection of information displays a currently valid OMB control number; and
(2)(i) The agency informs the potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
(ii) An agency shall provide the information described in paragraph (b)(2)(i) of this section in a manner that is reasonably calculated to inform the public.
(A) In the case of forms, questionnaires, instructions, and other written collections of information sent or made available to potential respondents (other than in an electronic format), the information described in paragraph (b)(2)(i) of this section is provided “in a manner that is reasonably calculated to inform the public” if the agency includes it either on the form, questionnaire or other collection of information, or in the instructions for such collection.
(B) In the case of forms, questionnaires, instructions, and other written collections of information sent or made available to potential respondents in an electronic format, the information described in paragraph (b)(2)(i) of this section is provided “in a manner that is reasonably calculated to inform the public” if the agency places the currently valid OMB control number in the instructions, near the title of the electronic collection instrument, or, for on-line applications, on the first screen viewed by the respondent.
(C) In the case of collections of information published in regulations, guidelines, and other issuances in the
(D) In other cases, and where OMB determines in advance in writing that special circumstances exist, to use other means that are reasonably calculated to inform the public of the information described in paragraph (b)(2)(i) of this section.
(c)(1) Agencies shall submit all collections of information, other than those contained in proposed rules published for public comment in the
(2) Agencies shall submit collections of information contained in proposed rules published for public comment in the
(3) Agencies shall submit collections of information contained in current regulations that were published as final rules in the
(4) Special rules for emergency processing of collections of information are set forth in § 1320.13.
(5) For purposes of time limits for OMB review of collections of information, any submission properly submitted and received by OMB after 12:00 noon will be deemed to have been received on the following business day.
(d)(1) To obtain OMB approval of a collection of information, an agency shall demonstrate that it has taken every reasonable step to ensure that the proposed collection of information:
(i) Is the least burdensome necessary for the proper performance of the agency’s functions to comply with legal requirements and achieve program objectives;
(ii) Is not duplicative of information otherwise accessible to the agency; and
(iii) Has practical utility. The agency shall also seek to minimize the cost to itself of collecting, processing, and using the information, but shall not do so by means of shifting disproportionate costs or burdens onto the public.
(2) Unless the agency is able to demonstrate, in its submission for OMB clearance, that such characteristic of the collection of information is necessary to satisfy statutory requirements or other substantial need, OMB will not approve a collection of information –
(i) Requiring respondents to report information to the agency more often than quarterly;
(ii) Requiring respondents to prepare a written response to a collection of information in fewer than 30 days after receipt of it;
(iii) Requiring respondents to submit more than an original and two copies of any document;
(iv) Requiring respondents to retain records, other than health, medical, government contract, grant-in-aid, or tax records, for more than three years;
(v) In connection with a statistical survey, that is not designed to produce valid and reliable results that can be generalized to the universe of study;
(vi) Requiring the use of a statistical data classification that has not been reviewed and approved by OMB;
(vii) That includes a pledge of confidentiality that is not supported by authority established in statute or regulation, that is not supported by disclosure and data security policies that are consistent with the pledge, or which unnecessarily impedes sharing of data with other agencies for compatible confidential use; or
(viii) Requiring respondents to submit proprietary, trade secret, or other confidential information unless the agency can demonstrate that it has instituted procedures to protect the information’s confidentiality to the extent permitted by law.
(e) OMB shall determine whether the collection of information, as submitted by the agency, is necessary for the proper performance of the agency’s functions. In making this determination, OMB will take into account the criteria set forth in paragraph (d) of this section, and will consider whether the burden of the collection of information is justified by its practical utility. In addition:
(1) OMB will consider necessary any collection of information specifically mandated by statute or court order, but will independently assess any collection of information to the extent that the agency exercises discretion in its implementation; and
(2) OMB will consider necessary any collection of information specifically required by an agency rule approved or not acted upon by OMB under § 1320.11 or § 1320.12, but will independently assess any such collection of information to the extent that it deviates from the specifications of the rule.
(f) Except as provided in § 1320.15, to the extent that OMB determines that all or any portion of a collection of information is unnecessary, for any reason, the agency shall not engage in such collection or portion thereof. OMB will reconsider its disapproval of a collection of information upon the request of the agency head or Senior Official only if the sponsoring agency is able to provide significant new or additional information relevant to the original decision.
(g) An agency may not make a substantive or material modification to a collection of information after such collection of information has been approved by OMB, unless the modification has been submitted to OMB for review and approval under this Part.
(h) An agency should consult with OMB before using currently approved forms or other collections of information after the expiration date printed thereon (in those cases where the actual form being used contains an expiration date that would expire before the end of the use of the form).
§ 1320.6 Public protection.
(a) Notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information that is subject to the requirements of this part if:
(1) The collection of information does not display, in accordance with § 1320.3(f) and § 1320.5(b)(1), a currently valid OMB control number assigned by the Director in accordance with the Act; or
(2) The agency fails to inform the potential person who is to respond to the collection of information, in accordance with § 1320.5(b)(2), that such person is not required to respond to the collection of information unless it displays a currently valid OMB control number.
(b) The protection provided by paragraph (a) of this section may be raised in the form of a complete defense, bar, or otherwise to the imposition of such penalty at any time during the agency administrative process in which such penalty may be imposed or in any judicial action applicable thereto.
(c) Whenever an agency has imposed a collection of information as a means for proving or satisfying a condition for the receipt of a benefit or the avoidance of a penalty, and the collection of information does not display a currently valid OMB control number or inform the potential persons who are to respond to the collection of information, as prescribed in § 1320.5(b), the agency shall not treat a person’s failure to comply, in and of itself, as grounds for withholding the benefit or imposing the penalty. The agency shall instead permit respondents to prove or satisfy the legal conditions in any other reasonable manner.
(1) If OMB disapproves the whole of such a collection of information (and the disapproval is not overridden under § 1320.15), the agency shall grant the benefit to (or not impose the penalty on) otherwise qualified persons without requesting further proof concerning the condition.
(2) If OMB instructs an agency to make a substantive or material change to such a collection of information (and the instruction is not overridden under § 1320.15), the agency shall permit respondents to prove or satisfy the condition by complying with the collection of information as so changed.
(d) Whenever a member of the public is protected from imposition of a penalty under this section for failure to comply with a collection of information, such penalty may not be imposed by an agency directly, by an agency through judicial process, or by any other person through administrative or judicial process.
(e) The protection provided by paragraph (a) of this section does not preclude the imposition of a penalty on a person for failing to comply with a collection of information that is imposed on the person by statute – e.g., 26 U.S.C. § 6011(a) (statutory requirement for person to file a tax return), 42 U.S.C. § 6938(c) (statutory requirement for person to provide notification before exporting hazardous waste).
§ 1320.7 Agency head and Senior Official responsibilities.
(a) Except as provided in paragraph (b) of this section, each agency head shall designate a Senior Official to carry out the responsibilities of the agency under the Act and this part. The Senior Official shall report directly to the head of the agency and shall have the authority, subject to that of the agency head, to carry out the responsibilities of the agency under the Act and this part.
(b) An agency head may retain full undelegated review authority for any component of the agency which by statute is required to be independent of any agency official below the agency head. For each component for which responsibility under the Act is not delegated to the Senior Official, the agency head shall be responsible for the performance of those functions.
(c) The Senior Official shall head an office responsible for ensuring agency compliance with and prompt, efficient, and effective implementation of the information policies and information resources management responsibilities established under the Act, including the reduction of information collection burdens on the public.
(d) With respect to the collection of information and the control of paperwork, the Senior Official shall establish a process within such office that is sufficiently independent of program responsibility to evaluate fairly whether proposed collections of information should be approved under this Part.
(e) Agency submissions of collections of information for OMB review, and the accompanying certifications under § 1320.9, may be made only by the agency head or the Senior Official, or their designee.
§ 1320.8 Agency collection of information responsibilities.
The office established under § 1320.7 shall review each collection of information before submission to OMB for review under this part.
(a) This review shall include:
(1) An evaluation of the need for the collection of information, which shall include, in the case of an existing collection of information, an evaluation of the continued need for such collection;
(2) A functional description of the information to be collected;
(3) A plan for the collection of information;
(4) A specific, objectively supported estimate of burden, which shall include, in the case of an existing collection of information, an evaluation of the burden that has been imposed by such collection;
(5) An evaluation of whether (and if so, to what extent) the burden on respondents can be reduced by use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses;
(6) A test of the collection of information through a pilot program, if appropriate; and
(7) A plan for the efficient and effective management and use of the information to be collected, including necessary resources.
(b) Such office shall ensure that each collection of information:
(1) Is inventoried, displays a currently valid OMB control number, and, if appropriate, an expiration date;
(2) Is reviewed by OMB in accordance with the clearance requirements of 44 U.S.C. § 3507; and
(3) Informs and provides reasonable notice to the potential persons to whom the collection of information is addressed of –
(i) The reasons the information is planned to be and/or has been collected;
(ii) The way such information is planned to be and/or has been used to further the proper performance of the functions of the agency;
(iii) An estimate, to the extent practicable, of the average burden of the collection (together with a request that the public direct to the agency any comments concerning the accuracy of this burden estimate and any suggestions for reducing this burden);
(iv) Whether responses to the collection of information are voluntary, required to obtain or retain a benefit (citing authority), or mandatory (citing authority);
(v) The nature and extent of confidentiality to be provided, if any (citing authority); and
(vi) The fact that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
(c)(1) An agency shall provide the information described in paragraphs (b)(3)(i) through (v) of this section as follows:
(i) In the case of forms, questionnaires, instructions, and other written collections of information sent or made available to potential respondents (except in an electronic format), such information can be included either on the form, questionnaire or other collection of information, as part of the instructions for such collection, or in a cover letter or memorandum that accompanies the collection of information.
(ii) In the case of forms, questionnaires, instructions, and other written collections of information sent or made available to potential respondents in an electronic format, such information can be included either in the instructions, near the title of the electronic collection instrument, or, for on-line applications, on the first screen viewed by the respondent;
(iii) In the case of collections of information published in regulations, guidelines, and other issuances in the
(iv) In other cases, and where OMB determines in advance in writing that special circumstances exist, agencies may use other means to inform potential respondents.
(2) An agency shall provide the information described in paragraph (b)(3)(vi) of this section in a manner that is reasonably calculated to inform the public (see § 1320.5(b)(2)(ii)).
(d)(1) Before an agency submits a collection of information to OMB for approval, and except as provided in paragraphs (d)(3) and (d)(4) of this section, the agency shall provide 60-day notice in the
(i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(ii) Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(iii) Enhance the quality, utility, and clarity of the information to be collected; and
(iv) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(2) If the agency does not publish a copy of the proposed collection of information, together with the related instructions, as part of the
(i) Provide more than 60-day notice to permit timely receipt, by interested members of the public, of a copy of the proposed collection of information and related instructions; or
(ii) Explain how and from whom an interested member of the public can request and obtain a copy without charge, including, if applicable, how the public can gain access to the collection of information and related instructions electronically on demand.
(3) The agency need not separately seek such public comment for any proposed collection of information contained in a proposed rule to be reviewed under § 1320.11, if the agency provides notice and comment through the notice of proposed rulemaking for the proposed rule and such notice specifically includes the solicitation of comments for the same purposes as are listed under paragraph (d)(1) of this section.
(4) The agency need not seek or may shorten the time allowed for such public comment if OMB grants an exemption from such requirement for emergency processing under § 1320.13.
§ 1320.9 Agency certifications for proposed collections of information.
As part of the agency submission to OMB of a proposed collection of information, the agency (through the head of the agency, the Senior Official, or their designee) shall certify (and provide a record supporting such certification) that the proposed collection of information –
(a) Is necessary for the proper performance of the functions of the agency, including that the information to be collected will have practical utility;
(b) Is not unnecessarily duplicative of information otherwise reasonably accessible to the agency;
(c) Reduces to the extent practicable and appropriate the burden on persons who shall provide information to or for the agency, including with respect to small entities, as defined in the Regulatory Flexibility Act (5 U.S.C. 601(6)), the use of such techniques as:
(1) Establishing differing compliance or reporting requirements or timetables that take into account the resources available to those who are to respond;
(2) The clarification, consolidation, or simplification of compliance and reporting requirements; or
(3) An exemption from coverage of the collection of information, or any part thereof;
(d) Is written using plain, coherent, and unambiguous terminology and is understandable to those who are to respond;
(e) Is to be implemented in ways consistent and compatible, to the maximum extent practicable, with the existing reporting and recordkeeping practices of those who are to respond;
(f) Indicates for each recordkeeping requirement the length of time persons are required to maintain the records specified;
(g) Informs potential respondents of the information called for under § 1320.8(b)(3);
(h) Has been developed by an office that has planned and allocated resources for the efficient and effective management and use of the information to be collected, including the processing of the information in a manner which shall enhance, where appropriate, the utility of the information to agencies and the public;
(i) Uses effective and efficient statistical survey methodology appropriate to the purpose for which the information is to be collected; and
(j) To the maximum extent practicable, uses appropriate information technology to reduce burden and improve data quality, agency efficiency and responsiveness to the public.
§ 1320.10 Clearance of collections of information, other than those contained in proposed rules or in current rules.
Agencies shall submit all collections of information, other than those contained either in proposed rules published for public comment in the
(a) On or before the date of submission to OMB, the agency shall, in accordance with the requirements in § 1320.5(a)(1)(iv), forward a notice to the
(b) Within 60 days after receipt of the proposed collection of information or publication of the notice under paragraph (a) of this section, whichever is later, OMB shall notify the agency involved of its decision to approve, to instruct the agency to make a substantive or material change to, or to disapprove, the collection of information, and shall make such decision publicly available. OMB shall provide at least 30 days for public comment after receipt of the proposed collection of information before making its decision, except as provided under § 1320.13. Upon approval of a collection of information, OMB shall assign an OMB control number and, if appropriate, an expiration date. OMB shall not approve any collection of information for a period longer than three years.
(c) If OMB fails to notify the agency of its approval, instruction to make substantive or material change, or disapproval within the 60-day period, the agency may request, and OMB shall assign without further delay, an OMB control number that shall be valid for not more than one year.
(d) As provided in § 1320.5(b) and § 1320.6(a), an agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
(e)(1) In the case of a collection of information not contained in a published current rule which has been approved by OMB and has a currently valid OMB control number, the agency shall:
(i) Conduct the review established under § 1320.8, including the seeking of public comment under § 1320.8(d); and
(ii) After having made a reasonable effort to seek public comment, but no later than 60 days before the expiration date of the OMB control number for the currently approved collection of information, submit the collection of information for review and approval under this part, which shall include an explanation of how the agency has used the information that it has collected.
(2) The agency may continue to conduct or sponsor the collection of information while the submission is pending at OMB.
(f) Prior to the expiration of OMB’s approval of a collection of information, OMB may decide on its own initiative, after consultation with the agency, to review the collection of information. Such decisions will be made only when relevant circumstances have changed or the burden estimates provided by the agency at the time of initial submission were materially in error. Upon notification by OMB of its decision to review the collection of information, the agency shall submit it to OMB for review under this part.
(g) For good cause, after consultation with the agency, OMB may stay the effectiveness of its prior approval of any collection of information that is not specifically required by agency rule; in such case, the agency shall cease conducting or sponsoring such collection of information while the submission is pending, and shall publish a notice in the
§ 1320.11 Clearance of collections of information in proposed rules.
Agencies shall submit collections of information contained in proposed rules published for public comment in the
(a) The agency shall include, in accordance with the requirements in § 1320.5(a)(1)(iv) and § 1320.8(d)(1) and (3), in the preamble to the Notice of Proposed Rulemaking a statement that the collections of information contained in the proposed rule, and identified as such, have been submitted to OMB for review under section 3507(d) of the Act. The notice shall direct comments to the Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for [name of agency].
(b) All such submissions shall be made to OMB not later than the day on which the Notice of Proposed Rulemaking is published in the
(c) Within 60 days of publication of the proposed rule, but subject to paragraph (e) of this section, OMB may file public comments on collection of information provisions. The OMB comments shall be in the form of an OMB Notice of Action, which shall be sent to the Senior Official or agency head, or their designee, and which shall be made a part of the agency’s rulemaking record.
(d) If an agency submission is not in compliance with paragraph (b) of this section, OMB may, subject to paragraph (e) of this section, disapprove the collection of information in the proposed rule within 60 days of receipt of the submission. If an agency fails to submit a collection of information subject to this section, OMB may, subject to paragraph (e) of this section, disapprove it at any time.
(e) OMB shall provide at least 30 days after receipt of the proposed collection of information before submitting its comments or making its decision, except as provided under § 1320.13.
(f) When the final rule is published in the
(g) If OMB has not filed public comments under paragraph (c) of this section, or has approved without conditions the collection of information contained in a rule before the final rule is published in the
(h) On or before the date of publication of the final rule, the agency shall submit the final rule to OMB, unless it has been approved under paragraph (g) of this section (and not substantively or materially modified by the agency after approval). Not later than 60 days after publication, but subject to paragraph (e) of this section, OMB shall approve, instruct the agency to make a substantive or material change to, or disapprove, the collection of information contained in the final rule. Any such instruction to change or disapprove may be based on one or more of the following reasons, as determined by OMB:
(1) The agency has failed to comply with paragraph (b) of this section;
(2) The agency had substantially modified the collection of information contained in the final rule from that contained in the proposed rule without providing OMB with notice of the change and sufficient information to make a determination concerning the modified collection of information at least 60 days before publication of the final rule; or
(3) In cases in which OMB had filed public comments under paragraph (c) of this section, the agency’s response to such comments was unreasonable, and the collection of information is unnecessary for the proper performance of the agency’s functions.
(i) After making such decision to approve, to instruct the agency to make a substantive or material change to, or disapprove, the collection of information, OMB shall so notify the agency. If OMB approves the collection of information or if it has not acted upon the submission within the time limits of this section, the agency may request, and OMB shall assign an OMB control number. If OMB disapproves or instructs the agency to make substantive or material change to the collection of information, it shall make the reasons for its decision publicly available.
(j) OMB shall not approve any collection of information under this section for a period longer than three years. Approval of such collection of information will be for the full three-year period, unless OMB determines that there are special circumstances requiring approval for a shorter period.
(k) After receipt of notification of OMB’s approval, instruction to make a substantive or material change to, disapproval of a collection of information, or failure to act, the agency shall publish a notice in the
(l) As provided in § 1320.5(b) and § 1320.6(a), an agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
§ 1320.12 Clearance of collections of information in current rules.
Agencies shall submit collections of information contained in current rules that were published as final rules in the
(a) In the case of a collection of information contained in a published current rule which has been approved by OMB and has a currently valid OMB control number, the agency shall:
(1) Conduct the review established under § 1320.8, including the seeking of public comment under § 1320.8(d); and
(2) After having made a reasonable effort to seek public comment, but no later than 60 days before the expiration date of the OMB control number for the currently approved collection of information, submit the collection of information for review and approval under this part, which shall include an explanation of how the agency has used the information that it has collected.
(b)(1) In the case of a collection of information contained in a published current rule that was not required to be submitted for OMB review under the Paperwork Reduction Act at the time the collection of information was made part of the rule, but which collection of information is now subject to the Act and this part, the agency shall:
(i) Conduct the review established under § 1320.8, including the seeking of public comment under § 1320(8)(d); and
(ii) After having made a reasonable effort to seek public comment, submit the collection of information for review and approval under this part, which shall include an explanation of how the agency has used the information that it has collected.
(2) The agency may continue to conduct or sponsor the collection of information while the submission is pending at OMB. In the case of a collection of information not previously approved, approval shall be granted for such period, which shall not exceed 60 days, unless extended by the Director for an additional 60 days, and an OMB control number assigned. Upon assignment of the OMB control number, and in accordance with § 1320.3(f) and § 1320.5(b), the agency shall display the number and inform the potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
(c) On or before the day of submission to OMB under paragraphs (a) or (b) of this section, the agency shall, in accordance with the requirements set forth in § 1320.5(a)(1)(iv), forward a notice to the
(d) Within 60 days after receipt of the collection of information or publication of the notice under paragraph (c) of this section, whichever is later, OMB shall notify the agency involved of its decision to approve, to instruct the agency to make a substantive or material change to, or to disapprove, the collection of information, and shall make such decision publicly available. OMB shall provide at least 30 days for public comment after receipt of the proposed collection of information before making its decision, except as provided under § 1320.13.
(e)(1) Upon approval of a collection of information, OMB shall assign an OMB control number and an expiration date. OMB shall not approve any collection of information for a period longer than three years. Approval of any collection of information submitted under this section will be for the full three-year period, unless OMB determines that there are special circumstances requiring approval for a shorter period.
(2) If OMB fails to notify the agency of its approval, instruction to make substantive or material change, or disapproval within the 60-day period, the agency may request, and OMB shall assign without further delay, an OMB control number that shall be valid for not more than one year.
(3) As provided in § 1320.5(b) and § 1320.6(a), an agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
(f)(1) If OMB disapproves a collection of information contained in an existing rule, or instructs the agency to make a substantive or material change to a collection of information contained in an existing rule, OMB shall:
(i) Publish an explanation thereof in the
(ii) Instruct the agency to undertake a rulemaking within a reasonable time limited to consideration of changes to the collection of information contained in the rule and thereafter to submit the collection of information for approval or disapproval under § 1320.10 or § 1320.11, as appropriate; and
(iii) Extend the existing approval of the collection of information (including an interim approval granted under paragraph (b) of this section) for the duration of the period required for consideration of proposed changes, including that required for OMB approval or disapproval of the collection of information under § 1320.10 or § 1320.11, as appropriate.
(2) Thereafter, the agency shall, within a reasonable period of time not to exceed 120 days, undertake such procedures as are necessary in compliance with the Administrative Procedure Act and other applicable law to amend or rescind the collection of information, and shall notify the public through the
(g) OMB may disapprove, in whole or in part, any collection of information subject to the procedures of this section, if the agency:
(1) Has refused within a reasonable time to comply with an OMB instruction to submit the collection of information for review;
(2) Has refused within a reasonable time to initiate procedures to change the collection of information; or
(3) Has refused within a reasonable time to publish a final rule continuing the collection of information, with such changes as may be appropriate, or otherwise complete the procedures for amendment or rescission of the collection of information.
(h)(1) Upon disapproval by OMB of a collection of information subject to this section, except as provided in paragraph (f)(1)(iii) of this section, the OMB control number assigned to such collection of information shall immediately expire, and no agency shall conduct or sponsor such collection of information. Any such disapproval shall constitute disapproval of the collection of information contained in the Notice of Proposed Rulemaking or other submissions, and also of the preexisting information collection instruments directed at the same collection of information and therefore constituting essentially the same collection of information.
(2) The failure to display a currently valid OMB control number for a collection of information contained in a current rule, or the failure to inform the potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number, does not, as a legal matter, rescind or amend the rule; however, such absence will alert the public that either the agency has failed to comply with applicable legal requirements for the collection of information or the collection of information has been disapproved, and that therefore the portion of the rule containing the collection of information has no legal force and effect and the public protection provisions of 44 U.S.C. 3512 apply.
(i) Prior to the expiration of OMB’s approval of a collection of information in a current rule, OMB may decide on its own initiative, after consultation with the agency, to review the collection of information. Such decisions will be made only when relevant circumstances have changed or the burden estimates provided by the agency at the time of initial submission were materially in error. Upon notification by OMB of its decision to review the collection of information, the agency shall submit it to OMB for review under this Part.
§ 1320.13 Emergency processing.
An agency head or the Senior Official, or their designee, may request OMB to authorize emergency processing of submissions of collections of information.
(a) Any such request shall be accompanied by a written determination that:
(1) The collection of information:
(i) Is needed prior to the expiration of time periods established under this Part; and
(ii) Is essential to the mission of the agency; and
(2) The agency cannot reasonably comply with the normal clearance procedures under this part because:
(i) Public harm is reasonably likely to result if normal clearance procedures are followed;
(ii) An unanticipated event has occurred; or
(iii) The use of normal clearance procedures is reasonably likely to prevent or disrupt the collection of information or is reasonably likely to cause a statutory or court ordered deadline to be missed.
(b) The agency shall state the time period within which OMB should approve or disapprove the collection of information.
(c) The agency shall submit information indicating that it has taken all practicable steps to consult with interested agencies and members of the public in order to minimize the burden of the collection of information.
(d) The agency shall set forth in the
(e) OMB shall approve or disapprove each such submission within the time period stated under paragraph (b) of this section, provided that such time period is consistent with the purposes of this Act.
(f) If OMB approves the collection of information, it shall assign a control number valid for a maximum of 90 days after receipt of the agency submission.
§ 1320.14 Public access.
(a) In order to enable the public to participate in and provide comments during the clearance process, OMB will ordinarily make its paperwork docket files available for public inspection during normal business hours. Notwithstanding other provisions of this Part, and to the extent permitted by law, requirements to publish public notices or to provide materials to the public may be modified or waived by the Director to the extent that such public participation in the approval process would defeat the purpose of the collection of information; jeopardize the confidentiality of proprietary, trade secret, or other confidential information; violate State or Federal law; or substantially interfere with an agency’s ability to perform its statutory obligations.
(b) Agencies shall provide copies of the material submitted to OMB for review promptly upon request by any person.
(c) Any person may request OMB to review any collection of information conducted by or for an agency to determine, if, under this Act and this part, a person shall maintain, provide, or disclose the information to or for the agency. Unless the request is frivolous, OMB shall, in coordination with the agency responsible for the collection of information:
(1) Respond to the request within 60 days after receiving the request, unless such period is extended by OMB to a specified date and the person making the request is given notice of such extension; and
(2) Take appropriate remedial action, if necessary.
(a) An independent regulatory agency which is administered by two or more members of a commission, board, or similar body, may by majority vote void:
(1) Any disapproval, instruction to such agency to make material or substantive change to, or stay of the effectiveness of OMB approval of, any collection of information of such agency; or
(2) An exercise of authority under § 1320.10(g) concerning such agency.
(b) The agency shall certify each vote to void such OMB action to OMB, and explain the reasons for such vote. OMB shall without further delay assign an OMB control number to such collection of information, valid for the length of time requested by the agency, up to three years, to any collection of information as to which this vote is exercised. No override shall become effective until the independent regulatory agency, as provided in § 1320.5(b) and § 1320.6(2), has displayed the OMB control number and informed the potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
(a) OMB may, after complying with the notice and comment procedures of the Administrative Procedure Act, delegate OMB review of some or all of an agency’s collections of information to the Senior Official, or to the agency head with respect to those components of the agency for which he or she has not delegated authority.
(b) No delegation of review authority shall be made unless the agency demonstrates to OMB that the Senior Official or agency head to whom the authority would be delegate:
(1) Is sufficiently independent of program responsibility to evaluate fairly whether proposed collections of information should be approved;
(2) Has sufficient resources to carry out this responsibility effectively; and
(3) Has established an agency review process that demonstrates the prompt, efficient, and effective performance of collection of information review responsibilities.
(c) OMB may limit, condition, or rescind, in whole or in part, at any time, such delegations of authority, and reserves the right to review any individual collection of information, or part thereof, conducted or sponsored by an agency, at any time.
(d) Subject to the provisions of this part, and in accordance with the terms and conditions of each delegation as specified in appendix A to this part, OMB delegates review and approval authority to the following agencies:
(1) Board of Governors of the Federal Reserve System; and
(2) Managing Director of the Federal Communications Commission.
§ 1320.17 Information collection budget.
Each agency’s Senior Official, or agency head in the case of any agency for which the agency head has not delegated responsibility under the Act for any component of the agency to the Senior Official, shall develop and submit to OMB, in such form, at such time, and in accordance with such procedures as OMB may prescribe, an annual comprehensive budget for all collections of information from the public to be conducted in the succeeding twelve months. For good cause, OMB may exempt any agency from this requirement.
(a) OMB shall determine whether any collection of information or other matter is within the scope of the Act, or this Part.
(b) In appropriate cases, after consultation with the agency, OMB may initiate a rulemaking proceeding to determine whether an agency’s collection of information is consistent with statutory standards. Such proceedings shall be in accordance with the informal rulemaking procedures of the Administrative Procedure Act.
(c) Each agency is responsible for complying with the information policies, principles, standards, and guidelines prescribed by OMB under this Act.
(d) To the extent permitted by law, OMB may waive any requirements contained in this part.
(e) Nothing in this part shall be interpreted to limit the authority of OMB under this Act, or any other law. Nothing in this part or this Act shall be interpreted as increasing or decreasing the authority of OMB with respect to the substantive policies and programs of the agencies.
Appendix A to Part 1320 – Agencies With Delegated Review and Approval Authority
(a) Authority to review and approve collection of information requests, collection of information requirements, and collections of information in current rules is delegated to the Board of Governors of the Federal Reserve System.
(1) This delegation does not include review and approval authority over any new collection of information or any modification to an existing collection of information that:
(i) Is proposed to be collected as a result of a requirement or other mandate of the Federal Financial Institutions Examination Council, or other Federal executive branch entities with authority to require the Board to conduct or sponsor a collection of information.
(ii) Is objected to by another Federal agency on the grounds that agency requires information currently collected by the Board, that the currently collected information is being deleted from the collection, and the deletion will have a serious adverse impact on the agency’s program, provided that such objection is certified to OMB by the head of the Federal agency involved, with a copy to the Board, before the end of the comment period specified by the Board on the
(iii) Would cause the burden of the information collections conducted or sponsored by the Board to exceed by the end of the fiscal year the Information Collection Budget allowance set by the Board and OMB for the fiscal year-end.
(2) The Board may ask that OMB review and approve collections of information covered by this delegation.
(3) In exercising delegated authority, the Board will:
(i) Provide the public, to the extent possible and appropriate, with reasonable opportunity to comment on collections of information under review prior to taking final action approving the collection. Reasonable opportunity for public comment will include publishing a notice in the
(A) Should the Board determine that a new collection of information or a change in an existing collection must be instituted quickly and that public participation in the approval process would defeat the purpose of the collection or substantially interfere with the Board’s ability to perform its statutory obligation, the Board may temporarily approve of the collection of information for a period not to exceed 90 days without providing opportunity for public comment.
(B) At the earliest practical date after approving the temporary extension to the collection of information, the Board will publish a
(ii) Provide the OMB/OIRA Desk Officer for the Federal Reserve Board with a copy of the Board’s
(iii) Assure that approved collections of information are reviewed not less frequently than once every three years, and that such reviews are normally conducted before the expiration date of the prior approval. Where the review has not been completed prior to the expiration date, the Board may extend the report, for up to three months, without public notice in order to complete the review and consequent revisions, if any. There may also be other circumstances in which the Board determines that a three-month extension without public notice is appropriate.
(iv) Take every reasonable step to conduct the review established under 5 CFR 1320.8, including the seeking of public comment under 5 CFR 1320.8(d). In determining whether to approve a collection of information, the Board will consider all comments received from the public and other agencies. The Board will not approve a collection of information that it determines does not satisfy the guidelines set forth in 5 CFR 1320.5(d)(2), unless it determines that departure from these guidelines is necessary to satisfy statutory requirements or other substantial need.
(v)(A) Assure that each approved collection of information displays, as required by 5 CFR 1320.6, a currently valid OMB control number and the fact that a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
(B) Assure that all collections of information, except those contained in regulations, display the expiration date of the approval, or, in case the expiration date has been omitted, explain the decision that it would not be appropriate, under 5 CFR 1320.5(a)(1)(iii)(C), for a proposed collection of information to display an expiration date.
(C) Assure that each collection of information, as required by 5 CFR 1320.8(b)(3), informs and provides fair notice to the potential respondents of why the information is being collected; the way in which such information is to be used; the estimated burden; whether responses are voluntary, required to obtain or retain a benefit, or mandatory; the confidentiality to be provided; and the fact that an agency may not conduct or sponsor, and the respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
(vi) Assure that each approved collection of information, together with a completed form OMB 83-I, a supporting statement, a copy of each comment received from the public and other agencies in response to the Board’s
(b) OMB will:
(1) Provide the Board in advance with a block of control numbers which the Board will assign in sequential order to and display on, new collections of information.
(2) Provide a written notice of action to the Board indicating that the Board approvals of collections of information that have been received by OMB and incorporated into OMB’s public docket files and an inventory of currently approved collections of information.
(3) Review any collection of information referred by the Board in accordance with the provisions of section 1(a)(2) of this Appendix.
(c) OMB may review the Board’s paperwork review process under the delegation. The Board will cooperate in carrying out such a review. The Board will respond to any recommendations resulting from such review and, if it finds the recommendations to be appropriate, will either accept the recommendations or propose an alternative approach to achieve the intended purpose.
(d) This delegation may, as provided by 5 CFR 1320.16(c), be limited, conditioned, or rescinded, in whole or in part at any time. OMB will exercise this authority only in unusual circumstances and, in those rare instances, will do so, subject to the provisions of 5 CFR 1320.10(f) and 1320.10(g), prior to the expiration of the time period set for public comment in the Board’s
(1) Prior to the commencement of a Board review (e.g., during the review for the Information Collection Budget). OMB has notified the Board that it intends to review a specific new proposal for the collection of information or the continued use (with or without modification) of an existing collection;
(2) There is substantial public objection to a proposed information collection: or
(3) OMB determines that a substantially inadequate and inappropriate lead time has been provided between the final announcement date of the proposed requirement and the first date when the information is to be submitted or disclosed. When OMB exercises this authority it will consider that the period of its review began the date that OMB received the
(e) Where OMB conducts a review of a Board information collection proposal under section 1(a)(1), 1(a)(2), or 1(d) of this Appendix, the provisions of 5 CFR 1320.13 continue to apply.
(a) Authority to review and approve currently valid (OMB-approved) collections of information, including collections of information contained in existing rules, that have a total annual burden of 5,000 hours or less and a burden of less than 500 hours per respondent is delegated to the Managing Director of the Federal Communications Commission.
(1) This delegation does not include review and approval authority over any new collection of information, any collections whose approval has lapsed, any substantive or material modification to existing collections, any reauthorization of information collections employing statistical methods, or any information collections that exceed a total annual burden of 5,000 hours or an estimated burden of 500 hours per respondent.
(2) The Managing Director may ask that OMB review and approve collections of information covered by the delegation.
(3) In exercising delegated authority, the Managing Director will:
(i) Provide the public, to the extent possible and appropriate, with reasonable opportunity to comment on collections of information under review prior to taking final action on reauthorizing an existing collection. Reasonable opportunity for public comment will include publishing a notice in the
(A) Should the Managing Director determine that a collection of information that falls within the scope of this delegation must be reauthorized quickly and that public participation in the reauthorization process interferes with the Commission’s ability to perform its statutory obligation, the Managing Director may temporarily reauthorize the extension of an information collection, for a period not to exceed 90 days, without providing opportunity for public comment.
(B) At the earliest practical date after granting this temporary extension to an information collection, the Managing Director will conduct a normal delegated review and publish a
(ii) Assure that approved collections of information are reviewed not less frequently than once every three years and that such reviews are conducted before the expiration date of the prior approval. When the review is not completed prior to the expiration date, the Managing Director will submit the lapsed information collection to OMB for review and reauthorization.
(iii) Assure that each reauthorized collection of information displays an OMB control number and, except for those contained in regulations or specifically designated by OMB, displays the expiration date of the approval.
(iv) Inform and provide fair notice to the potential respondents, as required by 5 CFR 1320.8(b)(3), of why the information is being collected; the way in which such information is to be used; the estimated burden; whether responses are voluntary, required, required to obtain or retain a benefit, or mandatory; the confidentiality to be provided; and the fact that an agency may not conduct or sponsor, and the respondent is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
(v) Transmit to OMB for incorporation into OMB’s public docket files, a report of delegated approval certifying that the Managing Director has reauthorized each collection of information in accordance with the provisions of this delegation. The Managing Director shall also make the certification required by 5 CFR 1320.9, e.g., that the approved collection of information reduces to the extent practicable and appropriate, the burden on respondents, including, for small business, local government, and other small entities, the use of the techniques outlined in the Regulatory Flexibility Act. Such transmittals shall be made no later than 15 days after the Managing Director has taken final action reauthorizing the extension of an information collection.
(vi) Ensure that the personnel in the Commission’s functional bureaus and offices responsible for managing information collections receive periodic training on procedures related to meeting the requirements of this part and the Act.
(b) OMB will:
(1) Provide notice to the Commission acknowledging receipt of the report of delegated approval and its incorporation into OMB’s public docket files and inventory of currently approved collections of information.
(2) Act upon any request by the Commission to review a collection of information referred by the Commission in accordance with the provisions of section 2(a)(2) of this appendix.
(3) Periodically assess, at its discretion, the Commission’s paperwork review process as administered under the delegation. The Managing Director will cooperate in carrying out such an assessment. The Managing Director will respond to any recommendations resulting from such a review and, if it finds the recommendations to be appropriate, will either accept the recommendation or propose an alternative approach to achieve the intended purpose.
(c) This delegation may, as provided by 5 CFR 1320.16(c), be limited, conditioned, or rescinded, in whole or in part at any time. OMB will exercise this authority only in unusual circumstances.
SUBCHAPTER C – JOINT REGULATIONS WITH THE OFFICE OF PERSONNEL MANAGEMENT
PART 1330 – HUMAN RESOURCES MANAGEMENT
Subparts A-C [Reserved]
Subpart D – Performance Appraisal Certification for Pay Purposes
Regulations identical to this subpart appear at 5 CFR part 430, subpart D.
§ 1330.401 Purpose.
(a) This subpart implements 5 U.S.C. 5307(d), as added by section 1322 of the Chief Human Capital Officers Act of 2002 (Title XIII of Public Law 107-296, the Homeland Security Act of 2002; November 25, 2002), which provides a higher aggregate limitation on pay for certain members of the Senior Executive Service (SES) under 5 U.S.C. 5382 and 5383 and employees in senior-level (SL) and scientific or professional (ST) positions paid under 5 U.S.C. 5376. In addition, this subpart is necessary to administer rates of basic pay for members of the SES under 5 U.S.C. 5382, as amended by section 1125 of the National Defense Authorization Act for Fiscal Year 2004. The regulations in this subpart strengthen the application of pay-for-performance principles to senior executives and senior professionals. Specifically, the statutory provisions authorize an agency to apply a higher maximum rate of basic pay for senior executives (consistent with 5 CFR part 534, subpart D, when effective) and apply a higher aggregate limitation on pay (consistent with 5 CFR part 530, subpart B) to its senior employees, but only after OPM, with OMB concurrence, has certified that the design and application of the agency’s appraisal systems for these employees make meaningful distinctions based on relative performance. This subpart establishes the certification criteria and procedures that OPM will apply in considering agency requests for such certification.
(b) Senior executives generally may receive an annual rate of basic pay up to the rate for level III of the Executive Schedule under 5 U.S.C. 5382 and 5 CFR part 534, subpart D, when effective. Senior employees generally may receive total compensation in a calendar year up to the rate for level I of the Executive Schedule under 5 U.S.C. 5307(a) and 5 CFR 530.203(a). Only employees covered by an appraisal system that OPM, with OMB concurrence, certifies under this subpart are eligible for a maximum annual rate of basic pay for senior executives up to the rate for level II of the Executive Schedule (consistent with 5 U.S.C. 5382 and 5 CFR part 534, subpart D, when effective) and a higher aggregate pay limitation equivalent to the total annual compensation payable to the Vice President (consistent with 5 U.S.C. 5307(d) and 5 CFR 530.203(b)).
§ 1330.402 Definitions.
In this subpart –
Appraisal system means the policies, practices, and procedures an agency establishes under 5 U.S.C. chapter 43 and 5 CFR part 430, subparts B and C, or other applicable legal authority, for planning, monitoring, developing, evaluating, and rewarding employee performance. This includes appraisal systems and appraisal programs as defined at § 430.203 and performance management systems as defined at § 430.303.
GPRA means the Government Performance and Results Act of 1993.
OMB means the Office of Management and Budget.
OPM means the Office of Personnel Management.
Outstanding performance means performance that substantially exceeds the normally high performance expected of any senior employee, as evidenced by exceptional accomplishments or contributions to the agency’s performance.
Performance evaluation means the comparison of the actual performance of senior employees against their performance expectations and may take into account their contribution to agency performance, where appropriate.
Performance expectations means critical and other performance elements and performance requirements that constitute the senior executive performance plans (as defined in § 430.303) established for senior executives, the performance elements and standards that constitute the performance plans (as defined in § 430.203) established for senior professionals, or other appropriate means authorized under performance appraisal systems not covered by 5 U.S.C. chapter 43 for communicating what a senior employee is expected to do and the manner in which he/she is expected to do it, and may include contribution to agency performance, where appropriate.
Program performance measures means results-oriented measures of performance, whether at the agency, component, or function level, which include, for example, measures under the Government Performance and Results Act.
PRB means Performance Review Board, as described at § 430.310.
Relative performance means the performance of a senior employee with respect to the performance of other senior employees, including their contribution to agency performance, where appropriate, as determined by the application of a certified appraisal system.
Senior employee means a senior executive or a senior professional.
Senior executive means a member of the Senior Executive Service (SES) paid under 5 U.S.C. 5383.
Senior professional means an employee in a senior-level (SL) or scientific or professional position (ST) paid under 5 U.S.C. 5376.
§ 1330.403 System certification.
(a) The performance appraisal system(s) covering senior employees must be certified by OPM, with OMB concurrence, as making meaningful distinctions based on relative performance before an agency may apply a maximum annual rate of basic pay for senior executives equal to the rate for level II of the Executive Schedule or apply an annual aggregate limitation on payments to senior employees equal to the salary of the Vice President under 5 U.S.C. 5307(d)). OPM, with OMB concurrence, will certify an agency’s appraisal system(s) only when a review of that system’s design, application, and administration reveals that the agency meets the certification criteria established in § 1330.404 and has followed the procedures for certifying agency appraisal systems in § 1330.405.
(b) Except as provided in paragraph (c) of this section, agencies subject to 5 U.S.C. chapter 43 and 5 CFR part 430 seeking certification of their appraisal systems must submit systems that have been approved by OPM under § 430.312 or § 430.210, as applicable. In some agencies, the performance appraisal system(s) covers employees in many organizations and/or components, and their ability to meet the certification criteria in § 1330.404 may vary significantly. In such cases, an agency may establish and/or submit separate performance appraisal systems for each of these distinct organizations and/or components to ensure timely certification of those performance appraisal system(s) that meet the criteria. New appraisal systems established under 5 CFR part 430, subpart B or C, as applicable based on the employees covered, must be approved by OPM.
(c) When an agency establishes a new appraisal system for the purpose of seeking certification under this subpart, the agency may submit that system for certification even if it has not yet been approved by OPM under § 430.312 or § 430.210, as applicable. OPM will certify, with OMB concurrence, only those systems that OPM determines meet the approval requirements of 5 CFR part 430, subpart B or C, as applicable.
(d) An agency must establish an appraisal system(s), as defined in § 1330.402, for its senior professionals that meets the requirements of 5 CFR part 430, subpart B, and is separate from the system(s) established to cover its SES members under 5 CFR part 430, subpart C. For the purpose of certification under this subpart, such senior professional appraisal system(s) must meet the certification criteria set forth in § 1330.404. At its discretion, an agency may include system features in its senior professional appraisal system(s) that are the same as, or similar to, the features of its SES appraisal system(s), as appropriate, including procedures that correspond to the higher level review procedures under § 430.308(b) and PRB reviews of summary ratings under § 430.308(c).
(e) For agencies subject to 5 U.S.C. chapter 43 and 5 CFR part 430, OPM approval of the agency performance appraisal system(s) is a prerequisite to certification. Agencies not subject to the appraisal provisions of 5 U.S.C. chapter 43 and 5 CFR part 430 and which are seeking certification of their appraisal system(s) under this subpart must submit appropriate documentation to demonstrate that each system complies with the appropriate legal authority that governs the establishment, application, and administration of that system.
§ 1330.404 Certification criteria.
(a) To be certified, an agency’s applicable appraisal system(s) for senior executives or senior professionals must make meaningful distinctions based on relative performance and meet the other requirements of 5 U.S.C. chapter 43, as applicable, in addition to the particular criterion cited here (i.e., consultation). Such system(s) must provide for the following:
(1) Alignment, so that the performance expectations for individual senior employees derive from, and clearly link to, the agency’s mission, GPRA strategic goals, program and policy objectives, and/or annual performance plans and budget priorities;
(2) Consultation, so that the performance expectations for senior employees meet the requirements of 5 CFR part 430, subparts B and C, as applicable, and/or other applicable legal authority; are developed with the input and involvement of the individual senior employees who are covered thereby; and are communicated to them at the beginning of the applicable appraisal period, and/or at appropriate times thereafter;
(3) Results, so that the performance expectations for individual senior employees apply to their respective areas of responsibility; reflect expected agency and/or organizational outcomes and outputs, performance targets or metrics, policy/program objectives, and/or milestones; identify specific programmatic crosscutting, external, and partnership-oriented goals or objectives, as applicable; and are stated in terms of observable, measurable, and/or demonstrable performance;
(4) Balance, so that in addition to expected results, the performance expectations for individual senior employees include appropriate measures or indicators of employee and/or customer/stakeholder feedback; quality, quantity, timeliness, and cost effectiveness, as applicable; and those technical, leadership and/or managerial competencies or behaviors that contribute to and are necessary to distinguish outstanding performance;
(5) Appropriate assessments of the agency’s performance – overall and with respect to each of its particular missions, components, programs, policy areas, and support functions – such as reports of the agency’s GPRA goals, annual performance plans and targets, program performance measures, and other appropriate indicators, as well as evaluation guidelines based, in part, upon those assessments, that are communicated by the agency head, or an individual specifically designated by the agency head for such purpose, to senior employees, appropriate senior employee rating and reviewing officials, and PRB members. These assessments and guidelines are to be provided at the conclusion of the appraisal period but before individual senior employee performance ratings are recommended, so that they may serve as a basis for individual performance evaluations, as appropriate. The guidance provided may not take the form of quantitative limitations on the number of ratings at any given rating level, and must conform to 5 CFR part 430, subpart B or C, as applicable;
(6) Oversight by the agency head or the individual specifically designated under paragraph (a)(5) of this section, who certifies, for a particular senior employee appraisal system, that –
(i) The senior employee appraisal process makes meaningful distinctions based on relative performance;
(ii) The results of the senior employee appraisal process take into account, as appropriate, the agency’s assessment of its performance against program performance measures, as well as other relevant considerations; and
(iii) Pay adjustments, cash awards, and levels of pay based on the results of the appraisal process accurately reflect and recognize individual performance and/or contribution to the agency’s performance;
(7) Accountability, so that final agency head decisions and any PRB recommendations regarding senior employee ratings consistent with 5 CFR part 430, subparts B and C, individually and overall, appropriately reflect the employee’s performance expectations, relevant program performance measures, and such other relevant factors as the PRB may find appropriate; in the case of supervisory senior employees, ratings must reflect the degree to which performance standards, requirements, or expectations for individual subordinate employees clearly link to organizational mission, GPRA strategic goals, or other program or policy objectives and take into account the degree of rigor in the appraisal of their subordinate employees;
(8) Performance differentiation, so that the system(s) includes at least one summary level of performance above fully successful, including a summary level that reflects outstanding performance, as defined in § 1330.402, and so that its annual administration results in meaningful distinctions based on relative performance that take into account the assessment of the agency’s performance against relevant program performance measures, as described in paragraph (a)(6) of this section, employee performance expectations, and such other relevant factors as may be appropriate. Relative performance does not require ranking senior employees against each other; such ranking is prohibited for the purpose of determining performance ratings. For equivalent systems that do not use summary ratings, the appraisal system must provide for clear differentiation of performance at the outstanding level; and
(9) Pay differentiation, so that those senior employees who have demonstrated the highest levels of individual performance and/or contribution to the agency’s performance receive the highest annual summary ratings or ratings of record, as applicable, as well as the largest corresponding pay adjustments, cash awards, and levels of pay, particularly above the rate for level III of the Executive Schedule. Agencies must provide for transparency in the processes for making pay decisions, while assuring confidentiality.
(b) Consistent with the requirements in section 3(a) of the Inspector General Act of 1978, an agency’s Inspector General or an official he or she designates must perform the functions listed in paragraphs (a)(5) and (6) of this section for senior employees in the Office of the Inspector General.
§ 1330.405 Procedures for certifying agency appraisal systems.
(a) General. To receive system certification, an agency must provide documentation demonstrating that its appraisal system(s), in design, application, and administration, meets the certification criteria in § 1330.404 as well as the procedural requirements set forth in this section.
(b) Certification requests. In order for an agency’s appraisal system to be certified, the head of the agency or designee must submit a written request for full or provisional certification of its appraisal system(s) to OPM. Certification requests may cover an agencywide system or a system that applies to one or more agency organizations or components and must include –
(1) A full description of the appraisal system(s) to be certified, including –
(i) Organizational and employee coverage information;
(ii) Applicable administrative instructions and implementing guidance; and
(iii) The system’s use of rating levels that are capable of clearly differentiating among senior employees based on appraisals of their relative performance against performance expectations in any given appraisal period reflecting performance evaluation results that make meaningful distinctions based on relative performance, and which include –
(A) For the agency’s senior executives covered by 5 CFR part 430, subpart C, at least four, but not more than five, summary rating levels – an outstanding level, a fully successful level, an optional level between outstanding and fully successful, a minimally satisfactory level, and an unsatisfactory level;
(B) For the agency’s senior professionals covered by 5 CFR part 430, subpart B, at least three, but not more than five, summary levels – an outstanding level, a fully successful level, an optional level between outstanding and fully successful, an unacceptable level, and an optional level between fully successful and unacceptable; and
(C) For agencies not subject to 5 CFR part 430, subparts B and C, a summary rating level that reflects outstanding performance or a methodology that clearly differentiates outstanding performance, as defined in § 1330.402;
(2) A clearly defined process for reviewing –
(i) The initial summary ratings and ratings of record, as applicable, of senior employees to ensure that annual summary ratings or ratings of record are not distributed arbitrarily or on a rotational basis, and
(ii) In the case of senior employees with supervisory responsibilities –
(A) The performance standards, requirements, or expectations for the employees they supervise to ensure that they clearly link to organizational mission, GPRA strategic goals, or other program and policy objectives, as appropriate, and
(B) The performance standards, requirements, or expectations and the performance ratings of the employees they supervise to ensure that they reflect distinctions in individual and organizational performance, as appropriate;
(3) Documentation showing that the appraisal system(s) meets the applicable certification criteria, as follows:
(i) For provisional certification, the requirements in § 1330.404(a)(1)-(4); and
(ii) For full certification, all of the requirements in § 1330.404.
(4) For full certification, data on senior executive annual summary ratings and senior professional ratings of record, as applicable (or other documentation for agencies that do not use summary ratings), for the two appraisal periods preceding the request, as well as corresponding pay adjustments, cash awards, and levels of pay provided to those senior employees; and
(5) Any additional information that OPM and OMB may require to make a determination regarding certification.
(c) Certification actions. At the request of an agency, the Director of OPM, at his or her discretion and in accordance with the requirements of this subpart and with OMB concurrence, may grant full or provisional certification of the agency’s appraisal system(s). OPM, with OMB concurrence, may –
(1) Grant full certification of an agency’s senior employee appraisal system(s) for 2 calendar years when an agency has demonstrated that it has designed and fully implemented and applied an appraisal system(s) for its senior executives or senior professionals, as applicable, that meets the certification criteria in § 1330.404 and the documentation requirements of this section.
(2) Grant provisional certification of an agency’s senior employee appraisal system(s) for 1 calendar year when an agency has designed, but not yet fully implemented or applied, an appraisal system(s) for its senior executives or senior professionals, as applicable, that meets the certification criteria in § 1330.404. OPM may extend provisional certification into the following calendar year in order to permit an agency to take any actions needed to adjust pay based on annual summary ratings, ratings of record, or other performance appraisal results determined during the calendar year for which the system was certified; or
(3) Suspend certification under paragraph (h) of this section if, at any time during the certification period, OPM, with OMB concurrence, determines that the agency appraisal system is not in compliance with certification criteria.
(d) Pay limitations. Absent full or provisional certification of its appraisal system(s), an agency must –
(1) Set a senior executive’s rate of basic pay at a rate that does not exceed the rate for level III of the Executive Schedule, consistent with 5 CFR part 534, subpart D, when effective; and
(2) Limit aggregate compensation paid to senior employees in a calendar year to the rate for level I of the Executive Schedule, consistent with 5 CFR 530.203(b).
(e) Full certification. (1) OPM, with OMB concurrence, may grant full certification when a review of the agency’s request and accompanying documentation demonstrates that the design, application, and administration of the agency’s appraisal system(s) meet the criteria in § 1330.404 and the documentation requirements of this section.
(2) An agency with a fully-certified appraisal system(s) may set the rate of basic pay under 5 CFR part 534, subpart D, when effective, for a senior executive covered by a certified system at a rate that does not exceed the rate for level II of the Executive Schedule and pay senior employees covered by certified system(s) aggregate compensation in a certified calendar year in an amount up to the Vice President’s salary under 3 U.S.C. 104.
(3) Full certification of an agency’s appraisal system will be renewed automatically for an additional 2 calendar years, if –
(i) The agency meets the annual reporting requirements in paragraph (g) of this section; and
(ii) Based on those annual reports, OPM determines, and OMB concurs, that the appraisal system(s) continues to meet the certification criteria and procedural requirements set forth in this subpart.
(f) Provisional certification. (1) OPM, with OMB concurrence, may grant provisional certification when the design of an agency’s appraisal system(s) for senior executives or senior professionals, as applicable, meets the requirements set forth in this subpart, but insufficient documentation exists to determine whether the actual application and administration of the appraisal system(s) meet the requirements for full certification. OPM, with OMB concurrence, may grant provisional certification to an agency more than once.
(2) During the 1-year period of provisional certification, an agency may set the rate of basic pay for a senior executive covered by the provisionally certified system at a rate that does not exceed the rate for level II of the Executive Schedule (consistent with 5 CFR part 534, subpart D, when effective) and pay senior employees covered by provisionally certified systems aggregate compensation in the certified calendar year in an amount up to the Vice President’s salary under 3 U.S.C. 104 (consistent with 5 CFR part 530, subpart B).
(3) An agency must resubmit an application requesting provisional certification for every calendar year for which it intends to maintain provisional certification. An agency with a provisionally certified appraisal system(s) may request that OPM, with OMB concurrence, grant full certification upon a showing that its performance appraisal systems for senior executives and senior professionals, as applicable, meet the certification criteria in § 1330.404 and the documentation requirements in this section, particularly with respect to the implementation and administration of the system(s) over at least two consecutive performance appraisal periods.
(g) Annual reporting requirement. Agencies with certified appraisal systems must provide OPM with a general summary of the annual summary ratings and ratings of record, as applicable, and rates of basic pay, pay adjustments, cash awards, and aggregate total compensation (including any lump-sum payments in excess of the applicable aggregate limitation on pay that were paid in the current calendar year as required by § 530.204) for their senior employees covered by a certified appraisal system at the conclusion of each appraisal period that ends during a calendar year for which the certification is in effect, in accordance with OPM instructions.
(h) Suspension of certification. (1) When OPM determines that an agency’s certified appraisal system is no longer in compliance with certification criteria, OPM, with OMB concurrence, may suspend such certification, as provided in paragraph (c)(3) of this section.
(2) An agency’s system certification is automatically suspended when OPM withdraws performance appraisal system approval or mandates corrective action because of misapplication of the system as authorized under §§ 430.210(c), 430.312(c), and 1330.403(e).
(3) OPM will notify the head of the agency at least 30 calendar days in advance of the suspension and the reason(s) for the suspension, as well as any expected corrective action. Upon such notice, and until its system certification is reinstated, the agency must set a senior executive’s rate of basic pay under 5 CFR part 534, subpart D, when effective, at a rate that does not exceed the rate for level III of the Executive Schedule. While certification is suspended, an agency must limit aggregate compensation received in a calendar year by a senior employee to the rate for level I of the Executive Schedule. Pay adjustments, cash awards, and levels of pay in effect prior to that notice will remain in effect unless OPM finds that any such decision and subsequent action was in violation of law, rule, or regulation.
(4) OPM, with OMB concurrence, may reinstate an agency’s suspended certification only after the agency has taken appropriate corrective action.
(5) OPM may reinstate the certification of an appraisal system that has been automatically suspended under paragraph (h)(2) of this section upon the agency’s compliance with the applicable OPM-mandated corrective action(s).
PARTS 1331-1399 [RESERVED]
CHAPTER IV – OFFICE OF PERSONNEL MANAGEMENT AND OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
PART 1400 – DESIGNATION OF NATIONAL SECURITY POSITIONS
Subpart A – Scope
§ 1400.101 Purpose.
(a) This part sets forth certain requirements and procedures which each agency shall observe for determining national security positions pursuant to Executive Order 10450 – Security Requirements for Government Employment (April 27, 1953), 3 CFR 1949-1953 Comp., p. 936.
(b) All positions must be evaluated for a position sensitivity designation commensurate with the responsibilities and assignments of the position as they relate to the impact on the national security, including but not limited to eligibility for access to classified information.
§ 1400.102 Definitions and applicability.
(a) In this part –
(1) Critical infrastructures are systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.
(2) Key resources are publicly or privately controlled resources essential to the minimal operations of the economy and government.
(3) National security refers to those activities which are directly concerned with the foreign relations of the United States, or protection of the Nation from internal subversion, foreign aggression, or terrorism.
(4) National security position includes any position in a department or agency, the occupant of which could bring about, by virtue of the nature of the position, a material adverse effect on the national security.
(i) Such positions include those requiring eligibility for access to classified information.
(ii) Other such positions include, but are not limited to, those whose duties include:
(A) Protecting the nation, its citizens and residents from acts of terrorism, espionage, or foreign aggression, including those positions where the occupant’s duties involve protecting the nation’s borders, ports, critical infrastructure or key resources, and where the occupant’s neglect, action, or inaction could bring about a material adverse effect on the national security;
(B) Developing plans or policies related to national defense or military operations;
(C) Planning or conducting intelligence or counterintelligence activities, counterterrorism activities and related activities concerned with the preservation of the military strength of the United States;
(D) Protecting or controlling access to facilities or information systems where the occupant’s neglect, action, or inaction could bring about a material adverse effect on the national security;
(E) Controlling, maintaining custody, safeguarding, or disposing of hazardous materials, arms, ammunition or explosives, where the occupant’s neglect, action, or inaction could bring about a material adverse effect on the national security;
(F) Exercising investigative or adjudicative duties related to national security, suitability, fitness or identity credentialing, where the occupant’s neglect, action, or inaction could bring about a material adverse effect on the national security;
(G) Exercising duties related to criminal justice, public safety or law enforcement, where the occupant’s neglect, action, or inaction could bring about a material adverse effect on the national security; or
(H) Conducting investigations or audits related to the functions described in paragraphs (a)(4)(ii)(B) through (G) of this section, where the occupant’s neglect, action, or inaction could bring about a material adverse effect on the national security.
(b) The requirements of this part apply to positions in the competitive service, positions in the excepted service where the incumbent can be noncompetitively converted to the competitive service, and Senior Executive Service (SES) positions held by career appointees in the SES within the executive branch. Departments and agencies may apply the requirements of this part to other excepted service positions within the executive branch and contractor positions, to the extent consistent with law.
§ 1400.103 Implementation.
OPM and the Security Executive Agent designated pursuant to Executive Order 13467 or any successor order may set forth policies, general procedures, criteria, standards, quality control procedures, and supplementary guidance for the implementation of this part.
Subpart B – Designation and Investigative Requirements
§ 1400.201 Sensitivity level designations and investigative requirements.
(a) For purposes of this part, the head of each agency must designate, or cause to be designated, a position within the department or agency as a national security position pursuant to § 1400.102(a). National security positions must then be designated, based on the degree of potential damage to the national security, at one of the following three sensitivity levels:
(1) Noncritical-Sensitive positions are national security positions which have the potential to cause significant or serious damage to the national security, including but not limited to:
(i) Positions requiring eligibility for access to Secret, Confidential, or “L” classified information; or
(ii) Positions not requiring eligibility for access to classified information, but having the potential to cause significant or serious damage to the national security.
(2) Critical-Sensitive positions are national security positions which have the potential to cause exceptionally grave damage to the national security, including but not limited to:
(i) Positions requiring eligibility for access to Top Secret or “Q” classified information;
(ii) Positions not requiring eligibility for access to classified information, but having the potential to cause exceptionally grave damage to the national security;
(iii) Positions involving development or approval of war plans, major or special military operations, or critical and extremely important items of war;
(iv) National security policy-making or policy-determining positions;
(v) Positions with investigative duties, including handling of completed counterintelligence or background investigations, the nature of which have the potential to cause exceptionally grave damage to the national security;
(vi) Positions involving national security adjudicative determinations or granting of personnel security clearance eligibility;
(vii) Positions involving duty on personnel security boards;
(viii) Senior management positions in key programs, the compromise of which could result in exceptionally grave damage to the national security;
(ix) Positions having direct involvement with diplomatic relations and negotiations;
(x) Positions involving independent responsibility for planning or approving continuity of Government operations;
(xi) Positions involving major and immediate responsibility for, and the ability to act independently without detection to compromise or exploit, the protection, control, and safety of the nation’s borders and ports or immigration or customs control or policies, where there is a potential to cause exceptionally grave damage to the national security;
(xii) Positions involving major and immediate responsibility for, and the ability to act independently without detection to compromise or exploit, the design, installation, operation, or maintenance of critical infrastructure systems or programs;
(xiii) Positions in which the occupants have the ability to independently damage public health and safety with devastating results;
(xiv) Positions in which the occupants have the ability to independently compromise or exploit biological select agents or toxins, chemical agents, nuclear materials, or other hazardous materials;
(xv) Positions in which the occupants have the ability to independently compromise or exploit the nation’s nuclear or chemical weapons designs or systems;
(xvi) Positions in which the occupants obligate, expend, collect or control revenue, funds or items with monetary value in excess of $50 million, or procure or secure funding for goods and/or services with monetary value in excess of $50 million annually, with the potential for exceptionally grave damage to the national security;
(xvii) Positions in which the occupants have unlimited access to and control over unclassified information, which may include private, proprietary or other controlled unclassified information, but only where the unauthorized disclosure of that information could cause exceptionally grave damage to the national security;
(xviii) Positions in which the occupants have direct, unrestricted control over supplies of arms, ammunition, or explosives or control over any weapons of mass destruction;
(xix) Positions in which the occupants have unlimited access to or control of access to designated restricted areas or restricted facilities that maintain national security information classified at the Top Secret or “Q” level;
(xx) Positions working with significant life-critical/mission-critical systems, such that compromise or exploitation of those systems would cause exceptionally grave damage to essential Government operations or national infrastructure; or
(xxi) Positions in which the occupants conduct internal and/or external investigation, inquiries, or audits related to the functions described in paragraphs (a)(2)(i) through (xx) of this section, where the occupant’s neglect, action, or inaction could cause exceptionally grave damage to the national security.
(3) Special-Sensitive positions are those national security positions which have the potential to cause inestimable damage to the national security, including but not limited to positions requiring eligibility for access to Sensitive Compartmented Information (SCI), requiring eligibility for access to any other intelligence-related Special Sensitive information, requiring involvement in Top Secret Special Access Programs (SAP), or positions which the agency head determines must be designated higher than Critical-Sensitive consistent with Executive order.
(b) OPM and ODNI issue, and periodically revise, a Position Designation System which describes in greater detail agency requirements for designating positions that could bring about a material adverse effect on the national security. Agencies must use the Position Designation System to designate the sensitivity level of each position covered by this part. All positions receiving a position sensitivity designation under this part shall also receive a risk designation under 5 CFR part 731 (see 5 CFR 731.106) as provided in paragraphs (c) and (d) of this section.
(c) Any position receiving a position sensitivity designation under this part at the critical-sensitive or special-sensitive level shall automatically carry with that designation, without further agency action, a risk designation under 5 CFR 731.106 at the high level.
(d) Any position receiving a position sensitivity designation at the noncritical-sensitive level shall automatically carry with that designation, without further agency action, a risk designation under 5 CFR 731.106 at the moderate level, unless the agency determines that the position should be designated at the high level. Agencies shall designate the position at the high level where warranted on the basis of criteria set forth in OPM issuances as described in § 731.102(c) of this title.
§ 1400.202 Waivers and exceptions to preappointment investigative requirements.
(a) Waivers – (1) General. A waiver of the preappointment investigative requirement contained in section 3(b) of Executive Order 10450 for employment in a national security position may be made only for a limited period:
(i) In case of emergency if the head of the department or agency concerned finds that such action is necessary in the national interest; and
(ii) When such finding is made a part of the records of the department or agency.
(2) Specific waiver requirements. (i) The preappointment investigative requirement may not be waived for appointment to positions designated Special-Sensitive under this part.
(ii) For positions designated Critical-Sensitive under this part, the records of the department or agency required by paragraph (a)(1) of this section must document the decision as follows:
(A) The nature of the emergency which necessitates an appointment prior to completion of the investigation and adjudication process;
(B) A record demonstrating the successful initiation of the required investigation based on a completed questionnaire; and
(C) A record of the Federal Bureau of Investigation fingerprint check portion of the required investigation supporting a preappointment waiver.
(iii) When a waiver for a position designated Noncritical-Sensitive is granted under this part, the agency head will determine documentary requirements needed to support the waiver decision. In these cases, the agency must favorably evaluate the completed questionnaire and expedite the submission of the request for an investigation at the appropriate level.
(iv) When waiving the preappointment investigation requirements, the applicant must be notified that the preappointment decision was made based on limited information, and that the ultimate appointment decision depends upon favorable completion and adjudication of the full investigative results.
(b) Exceptions to investigative requirements. Pursuant to section 3(a) of E.O. 10450, upon request of an agency head, the Office of Personnel Management may, in its discretion, authorize such less investigation as may meet the requirement of national security with respect to:
(1) Positions that are intermittent, seasonal, per diem, or temporary, not to exceed an aggregate of 180 days in either a single continuous appointment or series of appointments; or
(2) Positions filled by aliens employed outside the United States.
(c) Applicability. This section does not apply to:
(1) Investigations, waivers of investigative requirements, and exceptions from investigative requirements under 42 U.S.C. 2165(b);
(2) Investigative requirements for eligibility for access to classified information under Executive Order 12968; or
(3) Standards for temporary eligibility for access to classified information established by the Security Executive Agent pursuant to section 3.3(a)(2) of Executive Order 12968.
§ 1400.203 Periodic reinvestigation requirements.
(a) The incumbent of a national security position requiring eligibility for access to classified information is subject to the reinvestigation requirements of E.O. 12968.
(b) The incumbent of a national security position that does not require eligibility for access to classified information is subject to periodic reinvestigation at least once every five years. Such reinvestigation must be conducted using a national security questionnaire, and at a frequency and scope that will satisfy the reinvestigation requirements for both national security and public trust positions.
§ 1400.204 Reassessment of current positions.
(a) Agency heads must assess each position covered by this part within the agency using the standards set forth in this regulation as well as guidance provided in OPM issuances to determine whether changes in position sensitivity designations are necessary within 24 months of July 6, 2015.
(b) Where the sensitivity designation of the position is changed, and requires a higher level of investigation than was previously required for the position,
(1) The agency must initiate the investigation no later than 14 working days after the change in designation; and
(2) The agency will determine whether the incumbent’s retention in sensitive duties pending the outcome of the investigation is consistent with the national security.
(c) Agencies may provide advance notice of the redesignation of a position to allow time for completion of the forms, releases, and other information needed from the incumbent to initiate the investigation.
(d) Agencies may request an extension, pursuant to guidance issued jointly by OPM and ODNI, of the timeframe for redesignation of positions or initiation of reinvestigations, if justified by severe staffing, budgetary, or information technology constraints, or emergency circumstances.
§ 1400.205 Savings provision.
No provision of the rule in this part may be applied to make an adverse inference in pending administrative proceedings. However, the redesignation of a position may require that the occupant of that position undergo a new adjudication. An administrative proceeding is deemed to be pending from the date of the agency or OPM notice described in § 1400.301(c)(1).
Subpart C – Procedural Rights and Reporting
§ 1400.301 Procedural rights.
When an agency makes an adjudicative decision based on an OPM investigation or an investigation conducted under an OPM delegation of authority, or when an agency, as a result of information in such an investigation, changes a tentative favorable placement or clearance decision to an unfavorable decision, the agency must comply with all applicable administrative procedural requirements, as provided by law, rule, regulation, or Executive order, including E.O. 12968, and the agency’s own procedural regulations, and must:
(a) Ensure that the records used in making the decision are accurate, relevant, timely, and complete to the extent reasonably necessary to assure fairness to the individual in any determination;
(b) Consider all available, relevant information in reaching its final decision; and
(c) At a minimum, subject to requirements of law, rule, regulation, or Executive order:
(1) Provide the individual concerned notice of the specific reason(s) for the decision, an opportunity to respond, and notice of appeal rights, if any; and
(2) Keep any record of the agency action required by OPM as published in its issuances.
§ 1400.302 Reporting to OPM.
(a) Each agency conducting an investigation under E.O. 10450 is required to notify OPM when the investigation is initiated and when it is completed.
(b) Agencies must report to OPM an adjudicative determination and action taken with respect to an individual investigated pursuant to E.O. 10450 as soon as possible and in no event later than 90 days after receipt of the final report of investigation.
(c) To comply with process efficiency requirements, additional data may be collected from agencies conducting investigations or taking action under this part. These collections will be identified in separate OPM and ODNI guidance, issued as necessary under § 1400.103.
PARTS 1401-1499 [RESERVED]
CHAPTER V – THE INTERNATIONAL ORGANIZATIONS EMPLOYEES LOYALTY BOARD
PART 1500 [RESERVED]
PART 1501 – OPERATIONS OF THE INTERNATIONAL ORGANIZATIONS EMPLOYEES LOYALTY BOARD
§ 1501.1 Name.
This Board shall be known as the International Organizations Employees Loyalty Board, and any reference to the “Board” in this part shall mean such International Organizations Employees Loyalty Board.
§ 1501.2 Officers.
The officers of the Board shall consist of a chairman, a vice-chairman to be designated by the chairman, and an executive secretary to be appointed by the Board.
§ 1501.3 Duties of officers.
(a) The Chairman. The chairman shall perform all the duties usually pertaining to the office of chairman, including presiding at Board meetings, supervising the administrative work of the Board, and conducting its correspondence. He shall be authorized to call special meetings of the Board, when in his judgment, such meetings are necessary and shall call such meetings at the written request of three members of the Board. The time and place of such meetings shall be fixed by the chairman. The chairman shall constitute such panels of the Board as may be necessary or desirable to render advisory determinations and to conduct hearings, and he is authorized to appoint such committees as from time to time may be required to handle the work of the Board. The chairman may request the vice-chairman to assume the duties of the chairman in the event of the absence of the chairman or his inability to act.
(b) The Vice-Chairman. The duties of the vice-chairman, when acting in the place of the chairman, shall be the same as the duties of the chairman.
(c) The Executive-Secretary. The executive-secretary shall perform all of the duties customarily performed by an executive-secretary. He shall have immediate charge of the administrative duties of the Board under the direction of the chairman and shall have general responsibility for advising and assisting the Board members and exercising executive direction over the staff.
§ 1501.4 Hearings.
No adverse determination shall be made without the opportunity for a hearing.
§ 1501.5 Panels of the Board.
All hearings shall be held by panels of the Board, the determinations of which shall be the determinations of the Board. Such panels of the Board shall consist of not less than three members designated by the chairman. The chairman shall designate the Board member who shall be the presiding member and it shall be the duty of such presiding member to make due report to the Board of all acts and proceedings of the said panel.
§ 1501.6 Quorum.
A majority of all the members of the Board shall constitute a quorum of the Board. Minutes shall be kept of the transactions of the Board in its meetings.
§ 1501.7 Authority and responsibility of the Board.
The Board shall have the authority and responsibility to make rules and regulations, not inconsistent with the provisions of Executive Order 10422, as amended, for the execution of its functions and for making available to the Secretary General of the United Nations and the executive heads of other public international organizations certain information concerning United States citizens employed or being considered for employment by the United Nations or other public international organizations of which the United States is a member.
§ 1501.8 Grounds for determinations of the Board.
(a) Standard. The standard to be used by the Board in making any advisory determination relating to the loyalty of a United States citizen who is an employee of, or is being considered for employment in, a public international organization of which the United States is a member, shall be whether or not on all the evidence there is a reasonable doubt as to the loyalty of the person involved to the Government of the United States.
(b) Activities and associations. Among the activities and associations of the employee or person being considered for employment which may be considered in connection with a determination of disloyalty may be one or more of the following:
(1) Sabotage, espionage, or attempts or preparations therefor, or knowingly associating with spies or saboteurs.
(2) Treason or sedition or advocacy thereof.
(3) Advocacy of revolution or force or violence to alter the constitutional form of government of the United States.
(4) Intentional, unauthorized disclosure to any person, under circumstances which may indicate disloyalty to the United States, of United States documents or United States information of a confidential or non-public character obtained by the person making the disclosure as a result of his previous employment by the Government of the United States or otherwise.
(5) Performing or attempting to perform his duties, or otherwise acting, while an employee of the United States Government during a previous period, so as to serve the interests of another government in preference to the interests of the United States.
(6) Membership in, or affiliation or sympathetic association with, any foreign or domestic organization, association, movement, or group or combination of persons, designated by the Attorney General as totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the Constitution of the United States, or as seeking to alter the form of government of the United States by unconstitutional means.
§ 1501.9 Cases reviewable by the Board.
All cases in which an investigation has been made under Executive Order 10422, as amended, shall be referred to and reviewed by the Board in accordance with the Executive Order and the rules and regulations of the Board.
§ 1501.10 Consideration of reports of investigation.
(a) In all cases the Board shall consider the reports of investigation in the light of the standard as set forth in § 1501.8 and shall determine whether such reports warrant a finding favorable to the individual or appear to call for further processing of the case with a view to a possible unfavorable determination.
(b) If the Board reaches a favorable conclusion in a case involving a question of loyalty, it shall make a determination that on all the evidence there is not a reasonable doubt as to the individual’s loyalty.
(c) If the Board determines that the reports do not warrant a finding favorable to the individual, or the Board determines that the evidence is of such a nature that a hearing may be required before a final decision is made, the Board shall send by registered mail, or in such other manner as the Board in a particular case may decide, a written interrogatory to the individual. Such interrogatory shall state the nature of the evidence against him, setting forth with particularity the facts and circumstances involved, in as much detail as security conditions permit, in order to enable him to submit his answer, defense or explanation and to submit affidavits. It will also inform the applicant or employee, of his opportunity to reply to the interrogatory in writing, under oath or affirmation, within ten (10) calendar days of the date of receipt by him of the interrogatory or such longer time as the Board in specific cases may prescribe, and of his opportunity for a hearing on the issues before the Board or a panel of the Board, including his right to appear personally at such hearing, to be represented by counsel of a representative of his own choosing, to present evidence in his own behalf, and to cross-examine witnesses offered in support of the derogatory information.
§ 1501.11 Consideration of complete file before hearing.
(a) Following delivery to the applicant or employee of the interrogatory and after expiration of the time limit for filing an answer to the interrogatory, the Board shall proceed to consider the case on the complete file, including the answer, if any, to the interrogatory.
(b) If, upon such consideration, the Board concludes that a finding favorable to the individual may be made, no hearing shall be required.
(c) If, upon such consideration, the Board concludes that a determination favorable to the individual cannot be made on the basis of the information in the file, it shall set a time and place for a hearing and shall give notice thereof to the individual.
§ 1501.12 Obtaining further information.
At any stage in its review and consideration of a case, if the Board deems it advisable or necessary to obtain information or clarification of any matter, the Board may request further investigation, or submit a written questionnaire to the individual whose case is before the Board, or request such individual to furnish information in an oral interview.
§ 1501.13 Conduct of hearings.
(a) Not less than three members of a panel of the Board shall be present at all hearings. The Board shall conduct its hearings in such manner as to protect from disclosure information affecting the national security. The chairman of the panel shall preside and be responsible for the maintenance of decorum and order in the hearing.
(b) Attendance at hearings shall be limited to the applicant or employee, his attorney or representative, the panel of the Board assigned to the case, Board members, Board staff employees participating in the case, the witness who is testifying, and such other persons as in the opinion of the panel are required for the proper presentation of the case. Representation for an applicant or employee shall be limited to one attorney or representative and one bona fide assistant, both representing the applicant or employee only.
(c) Hearings shall begin with the reading of the interrogatory. The applicant or employee shall thereupon be informed of his right to participate in the hearing, to be represented by counsel, to present witnesses and other evidence in his behalf, and to cross-examine witnesses offered in support of the derogatory information.
(d) Testimony shall be given under oath or affirmation.
(e) Strict legal rules of evidence shall not be applied at the hearings, but reasonable bounds shall be maintained as to competency, relevancy, and materiality and due allowance shall be made for the effect of any nondisclosure to the individual of information or the absence of any opportunity to cross-examine persons who supplied information but who do not appear and testify. Both the Government and the applicant or employee may introduce such evidence as the panel may deem proper in the particular case.
(f) A complete verbatim stenographic transcript shall be made of the hearing, and the transcript shall constitute a permanent part of the record.
(g) Applicants and employees must pay their own travel and subsistence expenses incident to attendance at hearings, except that the Board may authorize the payment of travel and subsistence expenses to applicants or employees when the hearing is held at a place other than the place outside the continental limits of the United States where the employee works, or the applicant resides, and such payment is considered in the interest of good administration and funds are available for this purpose.
§ 1501.14 Decision of the Board.
After the employee or person being considered for employment has been given a hearing, the Board shall promptly make its decision. The determination of the Board shall be in writing and shall be signed by the members of the panel. It shall state the action taken, together with the reasons therefor, and shall be made a permanent part of the file in every case.
§ 1501.15 Transmission of Determination to the Secretary of State.
The Board shall transmit its determination in each case to the Secretary of State for transmission to the Secretary General of the United Nations, or the executive head of any other public international organization concerned. In each case in which the Board determines that, on all the evidence, there is a reasonable doubt as to the loyalty of the person involved to the Government of the United States, it shall also transmit a statement of the reasons for the Board’s determination in as much detail as the Board deems that security considerations permit.
§ 1501.16 Notification of individual concerned.
A copy of the determination of the Board, but not of the statement of reasons, shall be furnished in each case to the person who is the subject thereof.
PARTS 1502-1599 [RESERVED]
CHAPTER VI – FEDERAL RETIREMENT THRIFT INVESTMENT BOARD
PART 1600 – EMPLOYEE CONTRIBUTION ELECTIONS, INVESTMENT ELECTIONS, AND AUTOMATIC ENROLLMENT PROGRAM
Subpart A – General
§ 1600.1 Definitions.
Definitions generally applicable to the Thrift Savings Plan are set forth at 5 CFR 1690.1.
Subpart B – Elections
§ 1600.11 Types of elections.
(a) Contribution elections. A contribution election must be made pursuant to § 1600.12 and includes the following types of elections:
(1) To make employee contributions;
(2) To change the amount of employee contributions;
(3) To change the type of employee contributions (traditional or Roth); or
(4) To terminate employee contributions.
(b) Investment election. A participant may make or change the manner in which future deposits to his or her account are allocated among the TSP core funds only in accordance with 5 CFR part 1601.
§ 1600.12 Contribution elections.
(a) An employee may make a contribution election at any time.
(b) A participant must submit a contribution election to his or her employing agency. To make an election, employees may use either the paper election form provided by the TSP, or, if available from their employing agency, electronic media. If an electronic medium is used, all relevant elements contained on the paper form must be included in the electronic medium.
(c) A contribution election must:
(1) Be completed in accordance with the instructions on the form, if a paper form is used;
(2) Be made in accordance with the employing agency’s instructions, if the submission is made electronically; and
(3) Not exceed the maximum contribution limitations described in § 1600.22.
(d) A contribution election will become effective no later than the first full pay period after it is received by the employing agency.
(e) A uniformed service member may elect to contribute sums to the TSP from basic pay and special or incentive pay (including bonuses). However, in order to contribute to the TSP from special or incentive pay (including bonuses), the uniformed service member must also elect to contribute to the TSP from basic pay. A uniformed service member may elect to contribute from special pay or incentive pay (including bonuses) in anticipation of receiving such pay (that is, he or she does not have to be receiving the special or incentive pay (including bonuses) when the contribution election is made); those elections will take effect when the uniformed service member receives the special or incentive pay (including bonuses).
§ 1600.13 Effect of transfer to FERS.
(a) If an employee appointed to a position covered by CSRS elects to transfer to FERS, the employee may make a contribution election at any time.
(b) [Reserved]
(c) If the employee had elected to make TSP contributions while covered by CSRS, the election continues to be valid until the employee makes a new valid election.
(d) Agency automatic (1%) contributions for all employees covered under this section and, if applicable, agency matching contributions attributable to employee contributions must begin the same pay period that the transfer to FERS becomes effective.
§ 1600.14 Effect of election to be covered by BRS.
(a) If a uniformed service member elects to be covered by BRS, the member may make a contribution election at any time.
(b) [Reserved]
(c) If the member had elected to make TSP contributions while not covered by BRS, the election remains effective until the member makes a new election.
(d) Agency automatic (1%) contributions for all members covered under this section and, if applicable, agency matching contributions attributable to employee contributions must begin at the time set forth in § 1600.19(c).
Subpart C – Program of Contributions
§ 1600.18 Separate service member and civilian contributions.
The TSP record keeper maintains uniformed services accounts separately from civilian accounts. Therefore, a participant who has made contributions as a uniformed service member and as a civilian employee will have two TSP accounts: A uniformed services account and a civilian account.
§ 1600.19 Employing agency contributions.
(a) Agency automatic (1%) contributions. Each pay period, subject to the limitations in paragraph (c) of this section, any agency that employs an individual covered by FERS or BRS must make a contribution to that employee’s tax-deferred balance for the benefit of the individual equal to 1% of the basic pay paid to such employee for service performed during that pay period. The employing agency must make Agency Automatic (1%) Contributions without regard to whether the employee elects to make employee contributions.
(b) Agency matching contributions. (1) Subject to the limitations in paragraph (c) of this section, any agency that employs an individual covered by FERS or BRS must make a contribution to the employee’s tax-deferred balance for the benefit of the employee equal to the sum of:
(i) The amount of the employee’s contribution that does not exceed 3% of the employee’s basic pay for such pay period; and
(ii) One-half of such portion of the amount of the employee’s contributions that exceeds 3% but does not exceed 5% of the employee’s basic pay for such period.
(2) A uniformed service member is not entitled to matching contributions for contributions deducted from special or incentive pay (including bonuses).
(c) Timing of employing agency contributions. (1) An employee appointed or reappointed to a position covered by FERS is immediately eligible to receive employing agency contributions.
(2) A uniformed service member covered by BRS will be eligible to receive employing agency contributions pursuant to the following rules:
(i) A uniformed service member who first entered service on or after January 1, 2018 is entitled to:
(A) Agency automatic (1%) contributions beginning in the first full pay period following the date that is 60 days after the uniformed service member’s PEBD and ending in the first full pay period following the date that is 26 years after the uniformed service member’s PEBD.
(B) Agency matching contributions beginning in the first full pay period following the date that is 2 years and one day after the uniformed service member’s PEBD and ending in the first full pay period following the date that is 26 years after the uniformed service member’s PEBD.
(ii) A uniformed service member who elects to enroll in BRS is entitled to:
(A) Agency automatic (1%) contributions beginning in the first full pay period following the date the uniformed service member enrolled in BRS and ending in the first full pay period following the date that is 26 years after the Uniformed service member’s PEBD.
(B) Agency matching contributions beginning in the first full pay period following the date the uniformed service member enrolled in BRS and ending in the first full pay period following the date that is 26 years after the uniformed service member’s PEBD.
§ 1600.20 Types of employee contributions.
(a) Traditional contributions. A participant may make traditional contributions.
(b) Roth contributions. A participant may make Roth contributions in addition to or in lieu of traditional contributions.
(c) Contributions from tax-exempt pay. A uniformed service member who receives pay which is exempt from taxation under 26 U.S.C. 112 will have contributions deducted from such pay and made to his or her traditional or Roth balance in accordance with an election made under paragraph (a) or (b) of this section.
§ 1600.21 Contributions in whole percentages or whole dollar amounts.
(a) Civilian employees may elect to contribute a percentage of basic pay or a dollar amount, subject to the limits described in § 1600.22. The election must be expressed in whole percentages or whole dollar amounts. A participant may contribute a percentage for one type of contribution and a dollar amount for another type of contribution. If a participant elects to contribute a dollar amount to his or her traditional balance and a dollar amount to his or her Roth balance, but the total dollar amount elected is more than the amount available to be deducted from the participant’s basic pay, the employing agency will deduct traditional contributions first and Roth contributions second.
(b) Uniformed services members may elect to contribute from basic pay and, if they elect to contribute from basic pay, special or incentive pay (including bonus pay) subject to the limits described in § 1600.22. The election may be expressed as a whole percentage, a dollar amount, or both as determined by the member’s service.
§ 1600.22 Maximum employee contributions.
A participant’s employee contributions are subject to the following limitations:
(a) The maximum employee contribution will be limited only by the provisions of the Internal Revenue Code.
(b) A participant may make traditional contributions and Roth contributions during the same year, but the combined total amount of the participant’s tax-deferred employee contributions and Roth contributions cannot exceed the applicable Internal Revenue Code elective deferral limit for the year.
(c) A participant who has both a civilian and a uniformed services account can make employee contributions to both accounts, but the combined total amount of the participant’s tax-deferred employee contributions and Roth contributions made to both accounts cannot exceed the Internal Revenue Code elective deferral limit for the year.
§ 1600.23 Catch-up contributions.
(a) A participant may make traditional catch-up contributions or Roth catch-up contributions from basic pay at any time during the calendar year if he or she:
(1) Is at least age 50 by the end of the calendar year;
(2) Is making employee contributions at a rate that will result in the participant making the maximum employee contributions permitted under § 1600.22; and
(3) Does not exceed the annual limit on catch-up contributions contained in section 414(v) the Internal Revenue Code.
(b) [Reserved]
(c) A participant may make traditional catch-up contributions and Roth catch-up contributions during the same year, but the combined total amount of catch-up contributions of both types cannot exceed the applicable Internal Revenue Code catch-up contribution limit for the year.
(d) A participant who has both a civilian account and a uniformed services account may make catch-up contributions to both accounts, but the combined total amount of catch-up contributions to both accounts cannot exceed the Internal Revenue Code catch-up contribution limit for the year.
(e) A participant cannot make catch-up contributions to his or her traditional balance from pay which is exempt from taxation under 26 U.S.C. 112.
(f) A participant may make catch-up contributions to his or her Roth balance from pay which is exempt from taxation under 26 U.S.C. 112.
(g) A participant cannot make catch-up contributions from special or incentive pay (including bonus pay).
(h) [Reserved]
Subpart D – Rollovers From Other Qualified Retirement Plans
§ 1600.30 Accounts eligible for rollover.
(a) A participant who has an open TSP account and is entitled to receive (or receives) an eligible rollover distribution from an eligible employer plan within the meaning of section 402(c) of the Internal Revenue Code (26 U.S.C. 402(c)), or from a traditional IRA may roll over that distribution into his or her existing TSP account in accordance with § 1600.31.
(b) The only balances that the TSP record keeper will accept are balances that would otherwise be includible in gross income if the distribution were paid to the participant. The TSP record keeper will not accept any balances that have already been subjected to Federal income tax (after-tax monies) or balances from a uniformed services TSP account that will not be subject to Federal income tax (tax-exempt monies).
(c) Notwithstanding paragraph (b) of this section, the T